Assorted Criminal Cases 2

EN BANC
[A.C. No. 3086. February 23, 1988.]

ALEXANDER PADILLA, complainant, vs. THE HON. BALTAZAR R. DIZON, Presiding Judge of the
Regional Trial Court of Pasay City, Branch 113, respondent.
3. ID.; ID.; ID.; PENALTY. The Court finds the respondent Regional Trial Court Judge, Baltazar R. Dizon,
guilty of gross incompetence, gross ignorance of the law and grave and serious misconduct affecting his
integrity and efficiency, and consistent with the responsibility of this Court for the just and proper
administration of justice and for the attainment of the objective of maintaining the people's faith in the judiciary
(People vs. Valenzuela, 135 SCRA 712), it is hereby ordered that the Respondent Judge be dismissed from the
service. All leave and retirement benefits and privileges to which he may be entitled are hereby forfeited with
prejudice to his being reinstated in any branch of government service, including government-owned and/or
controlled agencies or corporations.
SYLLABUS
1. ADMINISTRATIVE SUPERVISION OVER COURTS AND COURT PERSONNEL; COMPLAINT
AGAINST A JUDGE; GROSS IGNORANCE OF THE LAW AND GROSS INCOMPETENCE; MANIFEST
IN CASE AT BAR. The respondent judge has shown gross incompetence or gross ignorance of the law in
holding that to convict the accused for violation of Central Bank Circular No. 960, the prosecution must
establish that the accused had the criminal intent to violate the law. The respondent ought to know that proof of
malice or deliberate intent (mens rea) is not essential in offenses punished by special laws, which are mala
prohibita. In requiring proof of malice, the respondent has by his gross ignorance allowed the accused to go scot
free. The accused at the time of his apprehension at the Manila International Airport had in his possession the
amount of US$355,349.57 in assorted foreign currencies and foreign exchange instruments (380 pieces),
without any specific authority from the Central Bank as required by law.
2. ID.; ID.; ID.; BOLSTERED BY RELEASE OF US$3,000 TO ACCUSED DESPITE FORFEITURE

PROCEEDINGS INITIATED BY THE BUREAU OF CUSTOMS. He not only acquitted the accused Lo Chi
Fai, but directed in his decision the release to the accused of at least the amount of US$3,000.00, allowed,
according to respondent, under Central Bank Circular No. 960. This, in spite of the fact that forfeiture
proceedings had already been instituted by the Bureau of Customs over the currency listed in the information,
which according to the respondent should be respected since the Bureau of Customs "has the exclusive
jurisdiction in the matter of seizure and forfeiture of the property involved in the alleged infringements of the
aforesaid Central Bank Circular." In invoking the provisions of CB Circular No. 960 to justify the release of
US$3,000.00 to the accused, the respondent judge again displayed gross incompetence and gross ignorance of
the law. There is nothing in the said CB Circular which could be taken as authority for the trial court to release
the said amount of U.S. Currency to the accused. According to the above-cited CB Circular, tourists may take
out or send out from the Philippines foreign exchange in amounts not exceeding such amounts of foreign
exchange brought in by them; for the purpose of establishing such amount, tourists or non-resident temporary
visitors bringing with them more than US$3,000.00 or its equivalent in other foreign currencies must declare
their foreign exchange at points of entries upon arrival in the Philippines.
RESOLUTION
PER CURIAM, p:
This is an administrative complaint, dated August 6, 1987, filed by the then Commissioner of Customs,
Alexander Padilla, against respondent Baltazar R. Dizon, RTC Judge, Branch 115, Pasay City, for rendering a
manifestly erroneous decision due, at the very least, to gross incompetence and gross ignorance of the law, in
Criminal Case No. 86-10126-P, entitled "People of the Philippines vs. Lo Chi Fai", acquitting said accused of
the offense charged, i.e., smuggling of foreign currency out of the country.
Required by the Court to answer the complaint, the respondent judge filed an Answer, dated October 6, 1987,
reciting his "commendable record as a fearless prosecutor" since his appointment as Assistant City Fiscal of
Manila on December 4, 1962, until his appointment eventually as RTC Judge on February 18, 1983; that in the
reorganization of the judiciary after the February 26, 1986 revolution, he was reappointed to his present
position; that his length of service as prosecutor and judge is "tangible proof that would negate the allegations
of the petitioner" (should be complainant), whereas the latter did not last long in the service for reasons only
known to him; that the decision involved in the complaint was promulgated by respondent on September 29,
1986, but the complaint against him was filed only on August 6, 1987, a clear indication of malice and ill-will
of the complainant to subject respondent to harassment, humiliation and vindictiveness; that his decision, of
which he submits a copy (Annex A) as part of his Answer, is based on "fundamental principles and the
foundation of rights and justice" and that if there are mistakes or errors in the questioned decision, they are
committed in good faith. Accordingly, respondent prays for the dismissal of the petition (should be complaint).
The issue before the Court is whether or not the respondent judge is guilty of gross incompetence or gross
ignorance of the law in rendering the decision in question. A judge can not be held to account or answer,
criminally, civilly or administratively, for an erroneous decision rendered by him in good faith.
HFL Guilder HFL 430.00

The case in which the respondent rendered a decision of acquittal involved a tourist, Lo Chi Fai, who was
caught by a Customs guard at the Manila International Airport while attempting to smuggle foreign currency
and foreign exchange instruments out of the country. Lo Chi Fai was apprehended by a customs guard and two
PAFSECOM officers on July 9, 1986, while on board Flight PR 300 of the Philippine Air Lines bound for
Hongkong. At the time of his apprehension, he was found carrying with him foreign currency and foreign
exchange instruments (380 pieces) amounting to US$355,349.57, in various currency denominations, to wit:
Japanese Yen, Swiss Franc, Australian Dollar, Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar,
English Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar and Hongkong Dollar, without any
authority as provided by law. At the time the accused was apprehended, he was able to exhibit two currency
declarations which he was supposed to have accomplished upon his arrival in Manila in previous trips, namely,
CB Currency Declaration No. 05048, dated May 4, 1986 for US$39,600.00 and Japanese Yen 4,000,000.00, and
CB Currency Declaration No. 06346, dated June 29, 1986 for Japanese Yen 6,600,000.00.
French Franc F/ 6,860.00

US Dollar US$ 73,950.00
English Pound L5,318.00
Malaysian Dollar M$ 14,760.00
in checks)
Australian Dollar A$ 7,750.00
British Pound L700.00
US Dollar US$ 17,630.00
An information was filed against Lo Chi Fai with the RTC of Pasay City for violation of Sec. 6, Central Bank
Circular No. 960, as follows:
Canadian Dollar C$ 990.00
without authority from the Central Bank.

"That on or about the 9th day of July, 1986, in the City of Pasay, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, Mr. LO CHI FAI, did then and there wilfully,
unlawfully and feloniously attempt to take out of the Philippines through the Manila International Airport the
following foreign currencies in cash and in checks:
Japanese Yen Y32,800,000.00
Contrary to Law."
The case, which was docketed as Criminal Case No. 86-10126-P, was subsequently raffled to Branch 113,
presided by herein respondent Judge Baltazar A. Dizon.
Swiss Franc SW. FR 6,9000.00

Australian Dollar A$ 17,425.00
Section 6 of Circular No. 960 of the Central Bank provides as follows:
Singapore Dollar S$ 9,945.00

Deutsche Marck DM 18,595.00
Canadian Dollar C$ 13,330.00
Hongkong Dollar HK$ 15,630.00
"Sec. 6. Export, import of foreign exchange; exceptions. No person shall take out or transmit or attempt to
take out or transmit foreign exchange in any form, out of the Philippines directly, through other persons,
through the mails or through international carriers except when specifically authorized by the Central Bank or
allowed under existing international agreements or Central Bank regulations.
Tourists and non-resident visitors may take out or send out from the Philippine foreign exchange in amounts not
exceeding such amounts of foreign exchange brought in by them. For purposes of establishing the amount of
foreign exchange brought in or out of the Philippines, tourists and non-resident temporary visitors bringing with
them more than US$3,000.00 or its equivalent in other foreign currencies shall declare their foreign exchange in
the form prescribed by the Central Bank at points of entries upon arrival in the Philippines."
understand English and he was not told to do so. He also testified on cross-examination that the reason he was
going back to Hongkong bringing with him all the money intended to be invested in the Philippines was
because of the fear of his group that the "revolution" taking place in Manila might become widespread. It was
because of this fear that he was urged by his associates to come to Manila on July 8, 1986 to bring the money
out of the Philippines.
The penal sanction is provided by Section 1, P.D. No. 1883, which reads as follows:
The respondent judge, in his decision acquitting the accused, stated:
"Section 1. Blackmarketing of Foreign Exchange. That any person who shall engage in the trading or
purchase and sale of foreign currency in violation of existing laws or rules and regulations of the Central Bank
shall be guilty of the crime of blackmarketing of foreign exchange and shall suffer the penalty of reclusion
temporal, (minimum of 12 years and 1 day and maximum of 20 years) and a fine of no less than fifty thousand
(P50,000.00) Pesos."
At the trial, the accused tried to establish that he was a businessman from Kowloon, Hongkong, engaged in the
garment business, in which he had invested 4 to 5 million Hongkong Dollars; that he had come to the
Philippines 9 to 10 times, although the only dates he could remember were April 2, 1986, May 4, 1986, June 28,
1986, and July 8, 1986; that the reason for his coming to the Philippines was to invest in business in the
Philippines and also to play in the casino; that he had a group of business associates who decided to invest in
business with him, namely: Wakita Noboyuki, Kobayashi Nabuo, Lee Shiang Pin, Lee Chin and Cze Kai Kwan,
who had their own businesses in Japan and Hongkong; that when he came to the Philippines on April 2, 1986,
he brought US$50,000.00 and 8,500,000.00 Japanese Yen which he tried to declare but the Central Bank
representative refused to accept his declaration, until he could get a confirmation as to the source of the money,
for which reason he contacted his bank in Hongkong and a telex was sent to him on April 3, 1986 (Exh. 4). He
also brought in with him US$39,000.00 and 4,000,000.00 Japanese Yen when he arrived on May 4, 1986 which
he declared (Exh. 1). Again, he declared 8,600,000.00 Japanese Yen when he arrived on June 28, 1986 (Exh. 2).
He also testified that his business associates, as per their agreement to invest in some business with him in the
Philippines, started putting their money for this purpose in a common fund, hence, every time anyone of them
came to the Philippines, they would declare the money they were bringing in, and all declarations were handed
to and kept by him; these currency declarations were presented at the trial as exhibits for the defense. When
asked by the court why he did not present all of these declarations when he was apprehended at the airport, his
answer was that he was not asked to present the declaration papers of his associates, and besides, he does not
"The factual issue for this Court to determine is whether or not the accused wilfully violated Section 6 of
Circular No. 960. The fact that the accused had in his possession the foreign currencies when he was about to
depart from the Philippines did not by that act alone make him liable for Violation of Section 6.
What is imperative is the purpose for which the act of bringing foreign currencies out of the country was done
the very intention. It is that which qualifies the act as criminal or not. There must be that clear intention to
violate and benefit from the act done. Intent is a mental state, the existence of which is shown by overt acts of a
person."
The respondent proceeded to analyze the evidence which, according to him, tended to show that the accused
had no wilfull intention to violate the law. According to the respondent in his decision:
". . . this Court is persuaded to accept the explanation of the defense that the currencies confiscated and/or
seized from the accused belong to him and his business associates abovenamed. And from the unwavering and
unequivocal testimonies of Mr. Templo and all of the Central Bank employees the currencies in question came
from abroad and not from the local source which is what is being prohibited by the government. Yes, simply
reading the provisions of said circular will, readily show that the currency declaration is required for the
purpose of establishing the amount of currency being brought by tourist or temporary non-resident visitors into
the country. The currency declarations, therefore, is already (sic) intended to serve as a guideline for the
Customs authorities to determine the amounts actually brought in by them to correspond to the amounts that
could be allowed to be taken out. Indeed, this Court is amazed and really has its misgivings in the manner
currency declarations were made as testified to by the Central Bank employees. Why the Bureau of Customs
representative never took part in all these declarations testified to by no less than five (5) Central Bank
employees? Seemingly, these employees are the favorites of these travellers. It is the hope of this Court that the
authorities must do something to remedy the evident flaw in the system for effective implementation of the
questioned Central Bank Circular No. 960.
But even with a doubtful mind this Court would not be able to pin criminal responsibility on the accused. This
is due to its steadfast adherence and devotion to the rule of law a factor in restoring the almost lost faith and
erosion of confidence of the people in the administration of justice. Courts of Justice are guided only by the rule
of evidence."
The respondent judge has shown gross incompetence or gross ignorance of the law in holding that to convict the
accused for violation of Central Bank Circular No. 960, the prosecution must establish that the accused had the
criminal intent to violate the law. The respondent ought to know that proof of malice or deliberate intent (mens
rea) is not essential in offenses punished by special laws, which are mala prohibita. In requiring proof of malice,
the respondent has by his gross ignorance allowed the accused to go scot free. The accused at the time of his
apprehension at the Manila International Airport had in his possession the amount of US$355,349.57 in assorted
foreign currencies and foreign exchange instruments (380 pieces), without any specific authority from the
Central Bank as required by law. At the time of his apprehension, he was able to exhibit only two foreign
currency declarations in his possession. These were old declarations made by him on the occasion of his
previous trips to the Philippines.
Although lack of malice or wilfull intent is not a valid defense in a case for violation of Central Bank Circular
No. 960, the respondent nonetheless chose to exonerate the accused based on his defense that the foreign
currency he was bringing out of the country at the time he was apprehended by the customs authorities were
brought into the Philippines by him and his alleged business associates on several previous occasions when they
came to the Philippines, supposedly to be used for the purpose of investing in some unspecified or
undetermined business ventures; that this money was kept in the Philippines and he precisely came to the
Philippines to take the money out as he and his alleged business associates were afraid that the "attempted
revolution" which occurred on July 6, 1986 might spread. Such fantastic tale, although totally irrelevant to the
matter of the criminal liability of the accused under the information, was swallowed by the respondent judge
"hook, line and sinker." It did not matter to the respondent that the foreign currency and foreign currency
instruments found in the possession of the accused when he was apprehended at the airport 380 pieces in all
and the amounts of such foreign exchange did not correspond to the foreign currency declarations presented
by the accused at the trial. It did not matter to the respondent that the accused by his own story admitted, in
effect, that he was a "carrier" of foreign currency for other people. The respondent closed his eyes to the fact
that the very substantial amounts of foreign exchange found in the possession of the accused at the time of his
apprehension consisted of personal checks of other people, as well as cash in various currency denominations
(12 kinds of currency in all), which clearly belied the claim of the accused that they were part of the funds
which he and his supposed associates had brought in and kept in the Philippines for the purpose of investing in
some business ventures. The respondent ignored the fact that most of the CB Currency declarations presented
by the defense at the trial were declarations belonging to other people which could not be utilized by the
accused to justify his having the foreign exchange in his possession. Although contrary to ordinary human
experience and behavior, the respondent judge chose to give credence to the fantastic tale of the accused that he
and his alleged business associates had brought in from time to time and accumulated and kept in the
Philippines foreign exchange (of very substantial amounts in cash and checks in various foreign currency
denominations) for the purpose of investing in business even before they knew and had come to an agreement
as to the specific business venture in which they were going to invest. These and other circumstances which
make the story concocted by the accused so palpably unbelievable as to render the findings of the respondent
judge obviously contrived to favor the acquittal of the accused, thereby clearly negating his claim that he
rendered the decision "in good faith." His actuations in this case amount to grave misconduct prejudicial to the
interest of sound and fair administration of justice.
He not only acquitted the accused Lo Chi Fai, but directed in his decision the release to the accused of at least
the amount of US$3,000.00, allowed, according to respondent, under Central Bank Circular No. 960. This, in
spite of the fact that forfeiture proceedings had already been instituted by the Bureau of Customs over the
currency listed in the information, which according to the respondent should be respected since the Bureau of
Customs "has the exclusive jurisdiction in the matter of seizure and forfeiture of the property involved in the
alleged infringements of the aforesaid Central Bank Circular." In invoking the provisions of CB Circular No.
960 to justify the release of US$3,000.00 to the accused, the respondent judge again displayed gross
incompetence and gross ignorance of the law. There is nothing in the said CB Circular which could be taken as
authority for the trial court to release the said amount of U.S. Currency to the accused. According to the abovecited CB Circular, tourists may take out or send out from the Philippines foreign exchange in amounts not
exceeding such amounts of foreign exchange brought in by them; for the purpose of establishing such amount,
tourists or non-resident temporary visitors bringing with them more than US$3,000.00 or its equivalent in other
foreign currencies must declare their foreign exchange at points of entries upon arrival in the Philippines. In
other words, CB Circular No. 960 merely provides that for the purpose of establishing the amount of foreign
currency brought in or out of the Philippines, a tourist upon arrival is required to declare any foreign exchange
he is bringing in at the time of his arrival, if the same exceeds the amount of US$3,000.00 or its equivalent in
other foreign currencies. There is nothing in said circular that would justify returning to him the amount of at
least US$3,000.00, if he is caught attempting to bring out foreign exchange in excess of said amount without
specific authority from the Central Bank.
EN BANC
[G.R. No. 109266. December 2, 1993.]
MIRIAM DEFENSOR SANTIAGO, petitioner, vs. HON. JUSTICE FRANCIS GARCHITORENA,
SANDIGANBAYAN (First Division) and PEOPLE OF THE PHILIPPINES, respondents.
Accordingly, the Court finds the respondent Regional Trial Court Judge, Baltazar R. Dizon, guilty of gross
incompetence, gross ignorance of the law and grave and serious misconduct affecting his integrity and
efficiency, and consistent with the responsibility of this Court for the just and proper administration of justice
and for the attainment of the objective of maintaining the people's faith in the judiciary (People vs. Valenzuela,
135 SCRA 712), it is hereby ordered that the Respondent Judge be DISMISSED from the service. All leave and
retirement benefits and privileges to which he may be entitled are hereby forfeited with prejudice to his being
reinstated in any branch of government service, including government-owned and/or controlled agencies or
corporations.
This resolution is immediately executory.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin,
Sarmiento, Cortes and Grio-Aquino, JJ., concur.
Narvasa, J., no part: did not participate in deliberations.

||| (Padilla v. Dizon, A.C. No. 3086 (Resolution), [February 23, 1988], 241 PHIL 920-930)
Amado M. Santiago, Jr. for petitioner.

The Solicitor General for the People of the Philippines.
SYLLABUS
1. COURTS; SANDIGANBAYAN; COLLEGIATE CHARACTER THEREOF RENDERS BASELESS FEAR

OF PREJUDICE AND BIAS ON PART OF INDIVIDUAL MEMBER. Notwithstanding petitioner's
misgiving, it should be taken into consideration that the Sandiganbayan sits in three divisions with three justices
in each division. Unanimity among the three members is mandatory for arriving at any decision of a division
(P.D. No. 1606, Sec. 5). The collegiate character of the Sandiganbayan thus renders baseless petitioner's fear of
prejudice and bias on the part of Presiding Justice Garchitorena (Paredes v. Gopengco, 29 SCRA 688 [1969]).
2. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; DOCTRINE

ENUNCIATED IN TATAD vs. SANDIGANBAYAN, 159 SCRA 70, NOT APPLICABLE TO CASE AT BAR.
Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there indeed was
an unexplained inaction on the part of the public prosecutors inspite of the simplicity of the legal and factual
issues involved therein. In the case at bench, there was a continuum of the investigatory process but it got
snarled because of the complexity of the issues involved. The act complained of in the original information
came to the attention of the Ombudsman only when it was first reported in the January 10, 1989 issue of the
Manila Standard. Immediately thereafter, the investigatory process was set in motion. The investigation was
first assigned to Special Prosecutor Gualberto dela Llana but on request of petitioner herself the investigation
was re-assigned to the Office of the Deputy Ombudsman for Luzon. The case was handled by a panel of four
prosecutors, who submitted a draft resolution for the filing of the charges on March 29, 1990. The draft
resolution had to undergo the hierarchy of review, normal for a draft resolution with a dissenting vote, until it
reached the Ombudsman in March 1991.
3. CRIMINAL LAW; ANTI-GRAFT AND CORRUPT PRACTICES ACT (R.A. NO. 3019); TWO WAYS OF
VIOLATING SECTION 3(e) THEREOF. There are two ways of violating Section 3 (e) of R.A. No. 3019.
These are: (a) by causing any undue injury to any party, including the Government; and (b) by giving any
private party any unwarranted benefit, advantage or preference. In Uy v. Sandiganbayan, G.R. No. 100334,
December 5, 1991, we held: "The use of the distinctive term "or" connotes that either act qualifies as a violation
of Section 3 (a). In other words the act of giving any private party any unwarranted benefit, advantage or
preference is not an indispensable element of the offense of 'causing any undue injury to any party' as claimed
by petitioners although there may be instances where both elements concur."
4. ID.; DELITO CONTINUADO; EXPLAINED; CONCEPT APPLIED TO CRIMES PENALIZED UNDER

SPECIAL LAWS. According to Cuello Calon, for delito continuado to exist there should be a plurality of
acts performed during a period of time; unity of penal provision violated; and unity of criminal intent or
purpose, which means that two or more violations of the same penal provisions are united in one and the same
intent or resolution leading to the perpetration of the same criminal purpose or aim (II Derecho Penal, p. 520; I
Aquino, Revised Penal Code, 630, 1987 ed). According to Guevarra, in appearance, a delito continuado consists
of several crimes but in reality there is only one crime in the mind of the perpetrator (Commentaries on the
Revised Penal Code, 1957 ed., p. 102; Penal Science and Philippines Criminal Law, p. 152). Padilla views such
offense as consisting of a series of acts arising from one criminal intent or resolution (Criminal Law, 1988 ed.,
pp. 53-54) . . . The concept of delito continuado, although an outcrop of the Spanish Penal Code, has been
applied to crimes penalized under special laws, e.g. violation of R.A. No. 145 penalizing the charging of fees
for services rendered following up claims for war veteran's benefits (People v. Sabbun, 10 SCRA 156 [1964]).
Under Article 10 of the Revised Penal Code, the Code shall be supplementary to special laws, unless the latter
provide the contrary. Hence, legal principles developed from the Penal Code may be applied in a supplementary
capacity to crimes punished under special laws.
word "aliens" in the original information each amended information states the name of the individual whose
stay was legalized . . . The 32 Amended Informations aver that the offenses were committed on the same period
of time, i.e., on or about October 17, 1988. The strong probability even exists that the approval of the
application for the legalization of the stay of the 32 aliens was done by a single stroke of the pen, as when the
approval was embodied in the same document. Likewise, the public prosecutors manifested at the hearing of the
motion for a bill of particulars that the Government suffered a single harm or injury.
6. CRIMINAL LAW; THEFT; "SINGLE LARCENY DOCTRINE"; DEFINED; "SEPARATE LARCENY

DOCTRINE;" EXPLAINED; RULE FOLLOWED IN AMERICAN COURTS. The trend in theft cases is to
follow the so-called "single larceny" doctrine, that is, the taking of several things, whether belonging to the
same or different owners, at the same time and place constitutes but one larceny. Many courts have abandoned
the "separate larceny doctrine," under which there are distinct larceny as to the property of each victim. Also
abandoned was the doctrine that the government has the discretion to prosecute the accused for one offense or
for as many distinct offenses as there are victims (Annotation, 37 ALR 3rd 1407, 1410-1414). The American
courts following the "single larceny" rule, look at the commission of the different criminal acts as but one
continuous act involving the same "transaction" or as done on the same "occasion" (State v. Sampson, 157 Iowa
257, 138 NW 473; People v. Johnson, 81 Mich. 573, 45 NW 1119; State v. Larson, 85 Iowa 659, 52 NW 539).
An American court held that a contrary rule would violate the constitutional guarantee against putting a man in
jeopardy twice for the same offense (Annotation, 28 ALR 2d 1179). Another court observed that the doctrine is
a humane rule, since if a separate charge could be filed for each act, the accused may be sentenced to the
penitentiary for the rest of his life (Annotation, 28 ALR 2d 1179).
DECISION
QUIASON, J p:
5. ID.; ID.; ID.; ID.; CASE AT BAR. We find that, technically, there was only one crime that was committed
in petitioner's case, and hence, there should only be one information to be filed against her. The 32 Amended
Informations charge what is known as delito continuado or "continued crime" and sometimes referred to as
"continuous crime." . . . In the case at bench, the original information charged petitioner with performing a
single criminal act that of her approving the application for legalization of aliens not qualified under the law
to enjoy such privilege. The original information also averred that the criminal act: (i) committed by petitioner
was in violation of a law Executive Order No. 324 dated April 1988, (ii) caused an undue injury to one
offended party, the Government, and (iii) was done on a single day, i.e., on or about October 17, 1988. The 32
Amended Informations reproduced verbatim the allegation of the original information, except that instead of the
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside: (a) the Resolution dated
March 3, 1993 in Criminal Case No. 16698 of the Sandiganbayan (First Division) and to declare Presiding
Justice Francis Garchitorena of the Sandiganbayan, disqualified from acting in said criminal case; and (b) the
Resolution of said court promulgated on March 14, 1993, which deemed as "filed" the 32 Amended
Informations against petitioner (Rollo, pp. 2-35 and pp. 36-94).
On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of the Sandiganbayan with violation of
Section 3(e) of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
allegedly committed by her favoring "unqualified" aliens with the benefits of the Alien Legalization Program
(Rollo, p. 36). LLphil
On May 24, 1991, petitioner filed with us a petition for certiorari and prohibition, docketed as G.R. No. 9928999290 (Santiago v. Vasquez, 205 SCRA 162 [1992]), to enjoin the Sandiganbayan from proceeding with
Criminal Case No. 16698 on the ground that said case was intended solely to harass her as she was then a
presidential candidate. She alleged that this was in violation of Section 10, Article IX-C of the Constitution
which provides that "(b)ona fide candidates for any public office shall be free from any form of harassment and
discrimination." The petition was dismissed on January 13, 1992.
On November 12, 1992 and upon motion of petitioner in G.R. No. 107598 (Miriam Defensor Santiago v.
Sandiganbayan, et al.), we directed the Sandiganbayan (First Division) to reset the arraignment to a later date
and to dispose of the two incidents pending before it (Re: disqualification of Presiding Justice Garchitorena and
the motion for bill of particulars). LLjur
At the hearing on November 13, 1992 on the motion for a bill of particulars, the prosecution stated categorically
that they would file only one amended information against petitioner.
On October 16, 1992, petitioner filed a motion for inhibition of Presiding Justice Garchitorena, which motion
was set for hearing on November 13, 1992 at 8:00 A.M. (Rollo, pp. 38-41).
However, on December 8, 1992, the prosecution filed a motion to admit the 32 Amended Informations
(Criminal Cases Nos. 18371 to 18402; Rollo, pp. 61-126).
On October 27, 1992, the Sandiganbayan (First Division), of which Presiding Justice Garchitorena is a member,
set the criminal case for arraignment on November 13, 1992 at 8:00 A.M. (Rollo, p. 42).
On March 3, 1993, Presiding Justice Garchitorena issued the questioned Resolution dated March 11, 1993,
denying the motion for his disqualification (Rollo, pp. 151-164).
On November 6, 1992, petitioner moved to defer the arraignment on the grounds that there was a pending
motion for inhibition, and that petitioner intended to file a motion for a bill of particulars (Rollo, pp. 43-44).
On March 14, 1993, the Sandiganbayan (First Division) promulgated a resolution, admitting the 32 Amended
Informations and ordering petitioner to post the corresponding bail bonds within ten days from notice (Rollo,
pp. 165-185). Petitioner's arraignment on the 32 Amended Informations was set for April 12, 1993 at 8:00 A.M.
(Rollo, p. 186).
On November 9, 1992, the Sandiganbayan (First Division) denied the motion to defer the arraignment (Rollo, p.
45).
On November 10, 1992, petitioner filed a motion for a bill of particulars (Rollo, pp. 47-48). The motion stated
that while the information alleged that petitioner had approved the application for legalization of "aliens" and
gave them indirect benefits and advantages it lacked a list of the favored aliens. According to petitioner, unless
she was furnished with the names and identities of the aliens, she could not properly plead and prepare for trial.
Hence, the filing of the instant petition.
Acting on the petition for the issuance of a restraining order, we issued the Resolution dated March 25, 1993,
ordering Presiding Justice Garchitorena "to CEASE and DESIST from sitting in the case until the question of
his disqualification is finally resolved by this Court and from enforcing the resolution dated March 11, 1993,
ordering petitioner to post bail bonds for the 32 Amended Informations and from proceeding with the
arraignment on April 12, 1993" (Rollo, p. 194). prcd
Re: Disqualification of the Sandiganbayan Presiding Justice
The petition for the disqualification of Presiding Justice Garchitorena is based on the publication of his letter in
the July 29, 1992 issue of the Philippine Star, which to petitioner "prejudged" the validity of the information
filed against her. Petitioner claims that Presiding Justice Garchitorena "cannot be expected to change the
conclusions he has subconsciously drawn in his public statements . . . when he sits in judgment on the merits of
the case . . ." (Rollo, pp. 16-17).
The letter in question was written in response to an item in Teodoro Benigno's column in the July 22, 1992 issue
of the Philippine Star, criticizing the Sandiganbayan for issuing on July 11, 1992 a hold-departure order against
petitioner. Benigno wrote that said order reflected a "perverse morality" of the Sandiganbayan and the lack of
"legal morality" of its Presiding Justice, thus:.
"I cannot, for example accept the legal morality of Sandiganbayan Justice Francis Garchitorena who would stop
Miriam Defensor Santiago from going abroad for a Harvard scholarship because of graft charges against her.
Some of the most perfidious Filipinos I know have come and gone, left and returned to these shores without Mr.
Garchitorena kicking any kind of rumpus. Compared to the peccadilloes of this country's outstanding felons,
what Miriam is accused of is kindergarten stuff. The Sandiganbayan Supremo got a lot of headlines for stopping
Miriam but I contend this is the kind of perverse morality we can do without" (Rollo, p. 156).
In particular, petitioner considered as prejudgment the statement of Presiding Justice Garchitorena that
petitioner had been charged before the Sandiganbayan "with having favored unqualified aliens with the benefits
of the Alien Legalization Program."
The statement complained of was just a restatement of the Information filed against petitioner in Criminal Case
No. 16698 in connection with which the hold-departure order was issued. Said Information specified the act
constituting the offense charged, thus: cdphil
"That on or about October 17, 1988, or for sometime prior or subsequent thereto, in Manila, Philippines, and
within the jurisdiction of this Honorable Court, accused Miriam Defensor-Santiago, being then the
Commissioner of the Commission on Immigration and Deportation, with evident bad faith and manifest
partiality, did then and there willfully, unlawfully and criminally approve the application for legalization of
aliens who arrived in the Philippines after January 1, 1984 in violation of Executive Order No. 324 dated April
13, 1988 which does not allow the legalization of the same, thereby causing undue injury to the government and
giving unwarranted benefits and advantages to said aliens in the discharge of the official and administrative
functions of said accused" (Rollo, p. 36).
It appears that petitioner tried to leave the country without first securing the permission of the Sandiganbayan,
prompting it to issue the hold-departure order which Benigno viewed as uncalled for. The letter of Presiding
Justice Garchitorena, written in defense of the dignity and integrity of the Sandiganbayan, merely stated that all
persons facing criminal charges in court, with no exception, have to secure permission to leave the country.
Nowhere in the letter is the merit of the charge against petitioner ever touched. Certainly, there would have been
no occasion for the letter had Benigno not written his diatribe, unfair at that, against the Sandiganbayan.
The portion of the letter of Presiding Justice Garchitorena, which petitioner finds objectionable, reads as
follows:
"(c) Mrs. Santiago has never informed any court where her cases are pending of her intention to travel, whether
the Regional Trial Court where she is charged with soliciting donations from people transacting with her office
at Immigration or before the Sandiganbayan where she is charged with having favored unqualified aliens with
the benefits of the Alien Legalization Program nor even the Supreme Court where her petition is still pending"
(Rollo, p. 158).
Notwithstanding petitioner's misgiving, it should be taken into consideration that the Sandiganbayan sits in
three divisions with three justices in each division. Unanimity among the three members is mandatory for
arriving at any decision of a division (P.D. No. 1606, Sec. 5). The collegiate character of the Sandiganbayan
thus renders baseless petitioner's fear of prejudice and bias on the part of Presiding Justice Garchitorena
(Paredes v. Gopengco, 29 SCRA 688 [1969].)
Re: Claim of denial of due process
Petitioner cannot complain that her constitutional rights to due process were violated by reason of the delay in
the termination of the preliminary investigation. According to her, while the offense was allegedly committed
"on or before October 17, 1988", the information was filed only on May 9, 1991 and the amended informations
on December 8, 1992 (Rollo, p. 14). LLjur
In a motion to quash, the accused admits hypothetically the allegations of fact in the information (People v.
Supnad, 7 SCRA 603 [1963]). Therefore, petitioner admitted hypothetically in her motion that:
(1) She was a public officer;

Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there indeed was an
unexplained inaction on the part of the public prosecutors inspite of the simplicity of the legal and factual issues
involved therein.
In the case at bench, there was a continuum of the investigatory process but it got snarled because of the
complexity of the issues involved. The act complained of in the original information came to the attention of the
Ombudsman only when it was first reported in the January 10, 1989 issue of the Manila Standard. Immediately
thereafter, the investigatory process was set in motion. The investigation was first assigned to Special
Prosecutor Gualberto dela Llana but on request of petitioner herself the investigation was re-assigned to the
Office of the Deputy Ombudsman for Luzon. The case was handled by a panel of four prosecutors, who
submitted a draft resolution for the filing of the charges on March 29, 1990. The draft resolution had to undergo
the hierarchy of review, normal for a draft resolution with a dissenting vote, until it reached the Ombudsman in
March 1991.
We note that petitioner had previously filed two petitions before us involving Criminal Case No. 16698 (G.R.
Nos. 99289-99290; G.R. No. 107598). Petitioner has not explained why she failed to raise the issue of the delay
in the preliminary investigation and the filing of the information against her in those petitions. A piece-meal
presentation of issues, like the splitting of causes of action, is self-defeating.
Petitioner next claims that the Amended Informations did not charge any offense punishable under Section 3 (e)
of R.A. No. 3019 because the official acts complained of therein were authorized under Executive Order No.
324 and that the Board of Commissioners of the Bureau of Investigation adopted the policy of approving
applications for legalization of spouses and unmarried, minor children of "qualified aliens" even though they
had arrived in the Philippines after December 31, 1983. She concludes that the Sandiganbayan erred in not
granting her motion to quash the informations (Rollo, pp. 25-31). LLpr
(2) She approved the application for legalization of the stay of aliens, who arrived in the Philippines after
January 1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in "evident bad faith and manifest partiality in the execution of her official functions."
The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of R.A. No.
3019.
The claims that the acts complained of were indeed authorized under Executive Order No. 324, that petitioner
merely followed in good faith the policy adopted by the Board of Commissioners and that the aliens were
spouses or unmarried minor children of persons qualified for legalization of stay, are matters of defense which
she can establish at the trial. cdll
Anent petitioner's claim that the Amended Informations did not allege that she had caused "undue injury to any
party, including the Government," there are two ways of violating Section 3 (e) of R.A. No. 3019. These are: (a)
by causing any undue injury to any party, including the Government; and (b) by giving any private party any
unwarranted benefit, advantage or preference.
In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:
"The use of the distinctive term "or" connotes that either act qualifies as a violation of Section 3 (a). In other
words the act of giving any private party any unwarranted benefit, advantage or preference is not an
indispensable element of the offense of 'causing any undue injury to any party' as claimed by petitioners
although there may be instances where both elements concur."
Re: Delito Continuado
Be that as it may, our attention was attracted by the allegation in the petition that the public prosecutors filed 32
Amended Informations against petitioner, after manifesting to the Sandiganbayan that they would only file one
amended information (Rollo, pp. 6-61). We also noted that petitioner questioned in her opposition to the motion
to admit the 32 Amended Informations, the splitting of the original information (Rollo, pp. 127-129). In the
furtherance of justice, we therefore proceed to inquire deeper into the validity of said plaint, which petitioner
failed to pursue with vigor in her petition.
We find that, technically, there was only one crime that was committed in petitioner's case, and hence, there
should only be one information to be filed against her.
The 32 Amended Informations charge what is known as delito continuado or "continued crime" and sometimes
referred to as "continuous crime."
In fairness to the Ombudsman's Office of the Special Prosecutor, it should be borne in mind that the concept of
delito continuado has been a vexing problem in Criminal Law difficult as it is to define and more difficult to
apply. LLphil
Accordingly to Cuello Calon, for delito continuado to exist there should be a plurality of acts performed during
a period of time; unity of penal provision violated; and unity of criminal intent or purpose, which means that
two or more violations of the same penal provisions are united in one and the same intent or resolution leading
to the perpetration of the same criminal purpose or aim (II Derecho Penal, p. 520; I Aquino, Revised Penal
Code, 630, 1987 ed).
Accordingly to Guevarra, in appearance, a delito continuado consists of several crimes but in reality there is
only one crime in the mind of the perpetrator (Commentaries on the Revised Penal Code, 1957 ed., p. 102;
Penal Science and Philippine Criminal Law, p. 152).
Padilla views such offense as consisting of a series of acts arising from one criminal intent or resolution
(Criminal Law, 1988 ed. pp. 53-54).
Applying the concept of delito continuado, we treated as constituting only one offense the following cases:
(1) The theft of 13 cows belonging to two different owners committed by the accused at the same place and at
the same period of time (People v. Tumlos, 67 Phil. 320 [1939]).
(2) The theft of six roosters belonging to two different owners from the same coop and at the same period of
time (People v. Jaranillo, 55 SCRA 563 [1974]). prcd
(3) The theft of two roosters in the same place and on the same occasion (People v. De Leon, 49 Phil. 437
[1926]).
10
(4) The illegal charging of fees for services rendered by a lawyer every time he collects veteran's benefits on
behalf of a client, who agreed that the attorney's fees shall be paid out of said benefits (People v. Sabbun, 10
SCRA 156 [1964]). The collections of the legal fees were impelled by the same motive, that of collecting fees
for services rendered, and all acts of collection were made under the same criminal impulse (People v. Lawas,
97 Phil. 975 [1955]).
Under Article 10 of the Revised Penal Code, the Code shall be supplementary to special laws, unless the latter
provide the contrary. Hence, legal principles developed from the Penal Code may be applied in a supplementary
capacity to crimes punished under special laws.
The question of whether a series of criminal acts over a period of time creates a single offense or separate
offenses has troubled also American Criminal Law and perplexed American courts as shown by the several
theories that have evolved in theft cases. llcd
On other hand, we declined to apply the concept to the following cases:
(1) Two estafa cases, one of which was committed during the period from January 19 to December 1955 and the
other from January 1956 to July 1956 (People v. Dichupa, 113 Phil. 306 [1961]). The said acts were committed
on two different occasions.
(2) Several malversations committed in May, June and July, 1936, and falsifications to conceal the said offenses
committed in August and October 1936. The malversations and falsifications "were not the result of only one
purpose or of only one resolution to embezzle and falsify . . ." (People v. Cid, 66 Phil. 354 [1938]).
(3) Two estafa cases, one committed in December 1963 involving the failure of the collector to turn over the
installments for a radio and the other in June 1964 involving the pocketing of the installments for a sewing
machine (People v. Ledesma, 73 SCRA 77 [1976]).
(4) 75 estafa cases committed by the conversion by the agent of collections from customers of the employer
made on different dates (Gamboa v. Court of Appeals, 68 SCRA 308 [1975]).
The concept of delito continuado, although an outcrop of the Spanish Penal Code, has been applied to crimes
penalized under special laws, e.g. violation of R.A. No. 145 penalizing the charging of fees for services
rendered following up claims for war veteran's benefits (People v. Sabbun, 10 SCRA 156 [1964]).
The trend in theft cases is to follow the so-called "single larceny" doctrine, that is, the taking of several things,
whether belonging to the same or different owners, at the same time and place constitutes but one larceny. Many
courts have abandoned the "separate larceny doctrine," under which there was a distinct larceny as to the
property of each victim. Also abandoned was the doctrine that the government has the discretion to prosecute
the accused for one offense or for as many distinct offenses as there are victims (Annotation, 37 ALR 3rd 1407,
1410-1414).
The American courts following the "single larceny" rule, look at the commission of the different criminal acts as
but one continuous act involving the same "transaction" or as done on the same "occasion" (State v. Sampson,
157 Iowa 257, 138 NW 473; People v. Johnson, 81 Mich. 573, 45 NW 1119; State v. Larson, 85 Iowa 659, 52
NW 539).
An American court held that a contrary rule would violate the constitutional guarantee against putting a man in
jeopardy twice for the same offense (Annotation, 28 ALR 2d 1179). Another court observed that the doctrine is
a humane rule, since if a separate charge could be filed for each act, the accused may be sentenced to the
penitentiary for the rest of his life (Annotation, 28 ALR 2d 1179).
In the case at bench, the original information charged petitioner with performing a single criminal act that of
her approving the application for legalization of aliens not qualified under the law to enjoy such privilege.
11
The original information also averred that the criminal act: (i) committed by petitioner was in violation of a law
- Executive Order No. 324 dated April 13, 1988, (ii) caused an undue injury to one offended party, the
Government, and (iii) was done on a single day, i.e., on or about October 17, 1988.
The 32 Amended Informations reproduced verbatim the allegation of the original information, except that
instead of the word "aliens" in the original information each amended information states the name of the
individual whose stay was legalized.
At the hearing of the motion for a bill of particulars, the public prosecutors manifested that they would file only
one amended information embodying the legalization of stay of the 32 aliens. As stated in the Order dated
November 12, 1992 of the Sandiganbayan (First Division):
adverse effect on the stability and security of the country in granting citizenship to those not qualified" (Rollo,
p. 59).
WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No. 16698 of the Sandiganbayan (First
Division) is AFFIRMED and its Resolution dated March 11, 1993 in Criminal Case No. 16698 is MODIFIED in
the sense that the Office of the Special Prosecutor of the Office of the Ombudsman is directed to consolidate the
32 Amended Informations (Criminal Cases Nos. 18371 to 18402) into one information charging only one
offense under the original case number, i.e., No. 16698. The temporary restraining order issued by this Court on
March 25, 1993 is LIFTED insofar as to the disqualification of Presiding Justice Francis Garchitorena is
concerned. llcd
SO ORDERED.
"On the matter of the Bill of Particulars, the prosecution has conceded categorically that the accusation against
Miriam Defensor Santiago consists of one violation of law represented by the approval of the applications of 32
foreign nationals for availment (sic) of the Alien Legalization Program. In this respect, and responding directly
to the concerns of the accused through counsel, the prosecution is categorical that there will not be 32
accusations but only one . . ." (Rollo, p. 59). LibLex
Narvasa, C .J ., Cruz, Padilla, Bidin, Regalado, Davide, Jr., Nocon, Bellosillo, Melo and Puno, JJ ., concur.
||| (Santiago v. Garchitorena, G.R. No. 109266, [December 2, 1993])
The 32 Amended Informations aver that the offenses were committed on the same period of time, i.e., on or
about October 17, 1988. The strong probability even exists that the approval of the application for the
legalization of the stay of the 32 aliens was done by a single stroke of the pen, as when the approval was
embodied in the same document.
THIRD DIVISION
Likewise, the public prosecutors manifested at the hearing of the motion for a bill of particulars that the
Government suffered a single harm or injury. The Sandiganbayan in its Order dated November 13, 1992 stated
as follows:
[G.R. No. 184343. March 2, 2009.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESUS DOMINGO, accused-appellant.

". . . Equally, the prosecution has stated that insofar as the damage and prejudice to the government is
concerned, the same is represented not only by the very fact of the violation of law itself but because of the
12
DECISION
stab and hit with the kitchen knife and screw driver said Melissa G. Indon, hitting her on different parts of her
body thereby inflicting thereon mortal wounds which directly caused her death."
CHICO-NAZARIO, J p:
Criminal Case No. 1498-M-2000 for Frustrated Murder
Appellant Jesus Domingo assails the Decision 1 of the Court of Appeals dated 30 April 2008 in CA-G.R. CR
No. 30511, modifying the Decision 2 dated 13 November 2006 of Branch 13 of the Regional Trial Court (RTC)
of Malolos, Bulacan. The Court of Appeals found appellant guilty beyond reasonable doubt of murder in
Criminal Cases No. 1496-M-2000 and No. 1497-M-2000, attempted murder in Criminal Cases No. 1498-M2000 and No. 1501-M-2000, frustrated murder in Criminal Case No. 1500-M-2000, and frustrated homicide in
Criminal Case No. 1499-M-2000. aDSAEI
On 7 March 2003, six Informations 3 were filed before the RTC charging appellant with the following offenses:
Criminal Case No. 1496-M-2000 for Murder
"That on or about the 29th day of March 2000, in the municipality of San Rafael, Province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a kitchen
knife and screw driver and with intent to kill one Marvin G. Indon, with evident premeditation, treachery and
taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault,
stab and hit with the kitchen knife and screw driver said Marvin G. Indon, hitting him on his body thereby
inflicting thereon mortal wounds which directly caused his death."
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with kitchen
knife and screw driver, did then and there willfully, unlawfully and feloniously, with evident premeditation and
treachery attack, assault and hit with the said screw driver one Michelle G. Indon, a minor of 9 years old, hitting
her on her back and buttocks, thereby inflicting on her serious physical injuries which ordinarily would have
caused the death of the said Michelle G. Indon, 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 his will, this is, by the timely and able medical assistance rendered to said Michelle G. Indon."
SACEca
treachery, attack, assault, stab and hit with the said kitchen knife and screw driver one Ronaldo Galvez, hitting
him on different part of his body, thereby inflicting on him serious physical injuries which ordinarily would
have caused the death of Ronaldo Galvez, 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
his will, that is, by the timely and able medical assistance rendered to said Ronaldo Galvez."
Criminal Case No. 1497-M-2000 for Murder

knife and screw driver and with intent to kill one Melissa G. Indon, with evident premeditation, treachery and
taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault,
13
treachery, attack, assault, stab and hit with the said kitchen knife and screw driver one Raquel Gatpandan Indon,
hitting her on the different parts of her body, thereby inflicting on her serious physical injuries which ordinarily
would have caused the death of the said Raquel Gatpandan Indon, 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 his will, that is, by the timely and able medical assistance rendered to said
Raquel Gatpandan Indon."
Criminal Case No. 1501-M-2000 for Attempted Murder
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a kettle
and with intent to kill one Jeffer G. Indon, did then and there willfully, unlawfully and feloniously, with evident
premeditation and treachery, commence the commission of murder directly by overt acts, that is by attacking,
assaulting, and hitting the said Jeffer G. Indon, a 2 year old boy, with the kettle, hitting the latter on his head,
thereby inflicting upon him physical injuries and if the accused was not able to accomplish his purpose, that is
to kill the said Jeffer G. Indon, it was not because of his voluntary desistance but due to the timely intervention
of third persons."
On 7 September 2000, appellant, with the assistance of counsel, was arraigned and he entered separate pleas of
"Not Guilty" to the crimes charged. Thereafter, pre-trial conference was held, and trial ensued accordingly. 4
EACIcH
Evidence for the prosecution consisted of the testimonies of complainants Raquel Indon, Jeffer Indon, and
Michelle Indon, Dr. Jacinto Caluag, Police Officer (PO) 3 Asher Villegas and PO2 Rogelio Santos.
Complainant Raquel Indon testified that between 1:00 a.m. and 2:00 a.m. of 29 March 2000, she and her minor
children Melissa, Michelle, Marvin and Jeffer were sleeping inside their house in Caingin, San Rafael, Bulacan,
when she was awakened by the sound of appellant kicking their door open. Raquel narrated that she
immediately recognized the accused, since the kitchen light illuminated his face. Armed with a screwdriver and
a kitchen knife, appellant cut the cord of the mosquito net and repeatedly stabbed her, using the six-inch
screwdriver, and hit her right arm three times. She screamed and was heard by her sister-in-law, whose house
was contiguous to theirs. When her sister-in-law asked her for the identity of the assailant, she immediately
identified herein appellant as "Doser", a name by which he is known in the community. Appellant was angered
by her reply and said, "Anong Doser?" and thereafter pulled a kitchen knife from his right side and stabbed her
on the stomach. When she tried to escape from the room, four-year-old Marvin rushed towards her. She then
grabbed him and ran towards the gate. However, before reaching the gate, she fell down and appellant stabbed
her right leg. The appellant then proceeded to stab Marvin, hitting the latter twice on the arm and twice on his
left chest. Marvin died on 3 April 2000 as a result of these injuries. After stabbing Marvin, appellant returned
back to the house, towards Raquel's two daughters Michelle and Melissa. When Raquel pleaded that the
appellant spare her daughters' lives, he retorted: "Ngayon pa, nagawa ko na." Melissa died because of the stab
wounds that the appellant inflicted on her; while Michelle, who was able to hide under the papag merely
sustained serious physical injuries. The appellant also attacked two-year-old Jeffer by striking him on the head
with the screwdriver, but the latter managed to run to the house of Raquel's sister-in-law. Raquel got up and ran
for help, but the appellant followed her. Their neighbor, Ronaldo Galvez, came to their rescue and tried to
subdue the appellant. Raquel, thereafter, lost consciousness. She also relayed that she was later informed that a
struggle ensued between appellant and Galvez. Appellant inflicted wounds on Galvez's upper left chest and
arms, after which Galvez was able to hit appellant with a piece of wood, which rendered the latter unconscious.
Raquel, Melissa, Marvin, Jeffer, Galvez and the appellant were taken to the hospital. 5
Raquel also testified that she spent P15,000.00 for the casket of Melissa Indon, P27,000.00 for the burial
expenses of Melissa Indon and Marvin Indon, and approximately P30,000.00 for the food served during their
wake. She also stated that because of her stab wounds, she spent P90,000.00 for hospitalization expenses and
medicines. However, the receipts were lost except those issued by Sagrada Familia Hospital and Bulacan
Provincial Hospital. 6
Jeffer Indon, who was five years old at the time he testified, stated that the scar on his forehead was the result of
the stab wound inflicted by Doser. However, on cross-examination, he admitted that he did not know who
stabbed him. 7
Michelle Indon identified the appellant as the man who stabbed her mother, her brother Marvin and her sister
Melissa. She testified that the appellant stabbed her in the back once. Thereafter, she hid under the papag. She
related that she did not go to the hospital anymore, because a certain Nanang Ella had already seen to her stab
wound. 8
14
Dr. Jacinto Caluag stated under oath that he treated Raquel Indon for multiple stab wounds. He testified that he
also assisted in the operation on Raquel to repair her liver and gallbladder, which were damaged. He also
disclosed that Raquel would have gone into shock and died had she not been given medical attention. 9
cEaCAH
Police officers Asher Villegas and Rogelio Santos testified that they proceeded to the scene of the crime after
the neighbors of the complainant reported the incident. When they arrived at the crime scene, appellant was
already tied up. They took pictures of the victims, while the kitchen knife and the screwdriver allegedly used by
the appellant were turned over to Police Officer Villegas. The complainants and the appellant were then brought
to the hospital. They recorded the incident in the Police Blotter and prepared the statements of the witnesses.
After the accused was treated for injuries, he was brought to the police station and detained. When asked why
he committed the crime, accused denied knowledge of what happened. 10
In an Order dated 10 July 2003, the trial court ordered that Ronaldo Galvez's testimony during his direct
examination be stricken off the records due to his absences on the days he was scheduled to be cross-examined.
11
The documentary evidence offered by the prosecution included the following: (1) the sketches of Raquel
Indon's house, to prove that the light from the kitchen allowed her to identify the appellant, marked as Exhibits
"A to A-6"; (2) the Death Certificate of Marvin Indon marked as Exhibit "D"; (3) the Medico-Legal Certificates
of Raquel Indon, Marvin Indon, Jeffer Indon, and Ronaldo Galvez marked as Exhibits "E", "F", "H", and "L",
respectively; (4) the Birth Certificates of Marvin Indon and Michelle Indon marked as Exhibits "B" and "N"; (5)
pictures of Melissa Indon's lifeless body marked as Exhibits "G" and "O"; (6) Sworn Statements of Ronaldo
Galvez and Michelle Indon marked as Exhibits "K" and "M"; (7) Statement of Account of the Medical Expenses
incurred by Raquel Indon, issued by Sagrada Familia Hospital in the amount of P38,500.00, marked as Exhibit
"I"; and (8) Statement of Account of the Medical Expenses incurred by Raquel Indon, issued by the Bulacan
Provincial Hospital, in the amount of P7,843.00, marked as Exhibit "J". 12 TSHcIa
In his defense, appellant testified that prior to the incident, he was in good terms with the Indon family and that
he had no record of mental illness. However on 20 March 2000, he went to East Avenue Medical Center for a
medical check-up, and he was advised to have an operation. He suffered from sleeplessness, lack of appetite,
and nervousness. Occasionally, a voice would tell him to kill. He averred that when he regained his memory,
one week had already passed since the incidents, and he was already detained. He only came to know of the
incidents from his sister and his children who visited him. On cross-examination he admitted that when he
regained his memory, he did not even ask the police officers why he was incarcerated. 13
Dr. Regienald Afroilan, a witness for the defense, also testified that appellant was first brought to the National
Center for Mental Health (Center) in August 2004 for a psychiatric evaluation, psychological examination and
final testing to determine if he could stand trial. Dr. Afroilan stated that based on his evaluation, appellant
suffered from Schizophrenia, a mental disorder characterized by the presence of delusions and or hallucinations,
disorganized speech and behavior, poor impulse control and low frustration tolerance. He could not find out
when the appellant started to suffer this illness, but the symptoms of Schizophrenia which were manifested by
the patient indicated that he suffered from the illness six months before the Center examined the appellant. On
cross-examination, he clarified that the evaluation finding that appellant suffered from Schizophrenia covered
the period when the appellant submitted himself to examination. 14
In a Decision dated 13 November 2006, the RTC decreed that the appellant was guilty beyond reasonable doubt
of homicide in Criminal Cases No. 1496-M-00 and No. 1497-M-00, frustrated homicide in Criminal Cases No.
1499-M-00 and No. 1500-M-00, and attempted homicide in Criminal Cases No. 1498-M-00 and No. 1501-M00. The RTC gave credence to the principal eyewitness, Raquel Indon, whose testimony was corroborated by
Michelle Indon, regarding appellant's attack on 29 March 2000. The trial court found the appellant's defense of
insanity unmeritorious, since what was presented was proof of appellant's mental disorder that existed five years
after the incident, but not at the time the crimes were committed. The RTC also considered it crucial that
appellant had the presence of mind to respond to Raquel Indon's pleas that her daughters be spared by saying,
"Ngayon pa, nagawa ko na." It also noted that based on the psychiatrist's findings, the appellant was competent
to stand trial. However, the trial court declared that there were no qualifying circumstances to support the
charges of Murder, Frustrated Murder or Attempted Murder. 15 The dispositive part of the Decision dated 13
November 2006 reads: EHIcaT
WHEREFORE, premises considered, the Court finds the accused guilty beyond reasonable doubt of the crime
of:
15
a) In Crim. Case No. 1496-M-00, Homicide, for the death of Marvin G. Indon, minor and hereby sentences him
to suffer the indeterminate penalty of seven (7) years of prision mayor as minimum to thirteen (13) years of
reclusion temporal as maximum; and to indemnify the heirs of the deceased in the amount of P75,000.00.
b) In Crim. Case No. 1497-M-00, Homicide, for the death of Melissa Indon, and hereby sentences him to suffer
the indeterminate penalty of seven (7) years of prision mayor as minimum to thirteen (13) years of reclusion
temporal as maximum; and to indemnify the heirs of the deceased in the amount of P75,000.00.
c) In Crim. Case No. 1498-M-00, Attempted Homicide, and hereby sentences him to suffer the indeterminate
penalty of six (6) months of aresto mayor as minimum to five (5) years of prision correccional as maximum;
and to indemnify the private complainant in the amount of P10,000.00.
d) In Crim. Case No. 1499-M-00, Frustrated Homicide, and hereby sentences him to suffer the indeterminate
penalty of five (5) years of prision correccional as minimum to eight (8) years of prision correccional as
maximum; and to indemnify the private complainant Ronaldo Galvez in the amount of P30,000.00.
e) In Crim. Case No. 1500-M-00, Frustrated Homicide, and hereby sentences him to suffer the indeterminate
penalty of five (5) years of prision correccional as minimum to eight (8) years of prision correccional as
maximum; and to indemnify the private complainant Raquel Gatpandan Indon in the amount of P30,000.00.
Likewise, accused is further directed to pay to the private complainant herein the sum of P90,000.00 to cover
hospitalization and medical expenses; P42,000.00 to cover the casket and burial expenses for Melissa and
Marvin, and P30,000.00 for food expenses, all by way of actual damages. ACETSa
f) In Crim. Case No. 1501-M-00, Attempted Homicide, and hereby sentences him to suffer the indeterminate
penalty of six (6) months of aresto mayor as minimum to five (5) years of prision correccional as maximum,
and to indemnify the private complainant in the amount of P10,000.00. 16
The appellant filed an appeal before the Court of Appeals docketed as CA-G.R. CR No. 30511, wherein he
faulted the RTC for not taking note of the inconsistencies in Raquel Indon's testimony and for not giving due
weight to his defense of insanity. 17 In a Decision dated 30 April 2008, the appellate court adjudged that Raquel
Indon's testimony was credible, and that the inconsistency pointed out by appellant whether or not Raquel
was standing up or lying down when appellant stabbed her legs referred to minor details. Moreover, insanity
exempts the accused only when the finding of mental disorder refers to appellant's state of mind immediately
before or at the very moment of the commission of the crime. This was not the case when appellant was first
medically examined more than four years after the commission of the crimes. Appellant's response to Raquel
Indon's pleas also proved that his faculties of reasoning were unimpaired at the time of the attack against
Raquel's children. 18
The Court of Appeals nevertheless modified the RTC's Decision dated 13 November 2006 and declared that the
qualifying circumstance of treachery, which was alleged in the six Informations along with evident
premeditation, was adequately proven by the prosecution. Raquel Indon, Michelle Indon, Melissa Indon,
Marvin Indon, and Jeffer Indon were merely sleeping inside their bedroom and had not even given the slightest
provocation when appellant attacked them without warning. Furthermore, the killing of Marvin Indon and
Melissa Indon, both minors who could not be expected to defend themselves against an adult, was considered
treacherous, and would sustain a conviction for murder. The penalties imposed were adjusted accordingly.
Appellant's conviction for frustrated homicide in Criminal Case No. 1499-M-2000 was affirmed, since
prosecution failed to prove appellant's treachery or evident premeditation in his assault against Rolando Galvez,
who came to the scene of the crime to subdue the appellant. 19 IECcAT
The Court of Appeals also modified the trial court's award of damages. It reduced the civil indemnity of
P75,000.00 awarded by the trial court, occasioned by the deaths of Marvin Indon and Melissa Indon, to
P50,000.00 and awarded the heirs of each murder victim moral damages in the amount of P50,000.00. The
awards for funeral expenses of P42,000.00 and food expenses of P30,000.00 were deleted by the appellate court
for lack of sufficient evidence to support the same. The appellate court awarded Raquel Indon civil indemnity of
P30,000.00 and moral damages of P25,000.00, but reduced the actual damages of P90,000.00 awarded by the
RTC to P46,343.00, in accordance with the Statement of Accounts from Sagrada Familia Hospital and Bulacan
Provincial Hospital. It affirmed the trial court's award for moral damages of P10,000.00 in favor of Michelle
Indon and P10,000.00 in favor of Jeffer Indon. Moral damages of P25,000.00 were also awarded by the
appellate court in favor of Ronaldo Galvez. 20
16
In the Decision dated 30 April 2008, the fallo reads:
WHEREFORE, the appealed Decision dated November 13, 2006 of the trial court is modified as follows:
1) In Criminal Case No. 1496-M-2000, accused-appellant Jesus Domingo is convicted of the crime of murder
and sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased Marvin
Indon the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages. The trial court's award
of funeral and food expenses of P42,000.00 and P30,000.00 respectively, are hereby deleted.
6) In Criminal Case No. 1501-M-2000, accused-appellant Jose Domingo is convicted of the crime of attempted
murder and is sentenced to an indeterminate penalty of six (6) years of prision correccional maximum, as the
minimum penalty, to ten (10) years of prision mayor medium, as the maximum penalty and to pay Jefferson
(sic) Indon P10,000.00 as moral damages. 21
Hence, the present petition where the appellant reiterates the assignment of errors that were raised before the
Court of Appeals, to wit:
I
2) In Criminal Case No. 1497-M-2000, accused-appellant Jesus Domingo is convicted of the crime of murder
and is sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased Melissa
Indon the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages.
3) In Criminal Case No. 1498-M-2000, accused-appellant Jose Domingo is convicted of the crime of attempted
murder and is sentenced to an indeterminate penalty of six (6) years of prision correccional maximum, as the
minimum penalty, to ten (10) years of prision mayor medium, as the maximum penalty and to pay Michelle
Indon P10,000.00 as moral damages. ACIESH
4) In Criminal Case No. 1499-M-2000, accused-appellant Jose Domingo is convicted of the crime of frustrated
homicide and is sentenced to an indeterminate penalty of five (5) years of prision correccional as minimum to
eight (8) years of prision mayor as maximum and to pay Ronaldo Galvez P25,000.00 as moral damages.
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSEDAPPELLANT FOR THE CRIMES CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT;
and
II
ASSUMING THAT THE ACCUSED-APPELLANT COMMITTED THE CRIMES CHARGED, THE TRIAL
COURT GRAVELY ERRED IN NOT EXEMPTING HIM FROM CRIMINAL LIABILITY IN VIEW OF HIS
INSANITY AT THE TIME OF THE COMMISSION OF THE SAME. 22 SAHIaD
This Court affirms the judgment of conviction.

5) In Criminal Case No. 1500-M-2000, accused-appellant Jose Domingo is convicted of the crime of frustrated
murder and is sentenced to an indeterminate penalty of twelve (12) years of prision mayor maximum, as the
minimum penalty, to seventeen (17) years and four (4) months of reclusion temporal medium, as the maximum
penalty and to pay Raquel Indon the amount of P30,000.00 as civil indemnity, P46,343.00 as actual damages
and P25,000.00 as moral damages.
The testimony of the principal witness of the prosecution, Raquel Indon, is assailed by appellant for not being
credible due to an inconsistency in her testimony and a lack of conformity with the experience of ordinary men.
17
Appellant refers to Raquel's testimony during cross-examination wherein she narrated that after the appellant
entered her bedroom, she screamed. Her sister-in-law, who lived next door, responded by asking Raquel who
her assailant was, and the latter identified the appellant. Appellant claims that the conversation between Raquel
and her sister-in-law was contrary to the ordinary course of things, and that the initial reaction of people in such
a situation would be to ask for help from other people in order to save those who are in danger. Secondly,
Raquel also testified during cross-examination that the appellant stabbed the front of her legs when she fell
down. It is also argued that the appellant could not have stabbed the front of her legs, since she would be lying
on front of her legs when she fell down.
This Court finds no merit in these arguments. To begin with, there was nothing out of the ordinary as regards
Raquel's testimony on these two matters. First, there was nothing unusual about the sister-in-law's query as to
who was attacking Raquel. Considering that the exchange merely consisted of this question and the reply to it, it
would not even be accurate to refer to it as a "conversation". Secondly, it was not impossible for the appellant to
stab the front of Raquel's legs, had her legs been positioned sideways when she fell. But more importantly, these
are peripheral details that do not affect the substantial aspects of the incident. Raquel clearly and positively
testified that she was carrying her son Marvin when she rushed to the gate and fell down, and the appellant
stabbed her legs and thereafter proceeded to stab Marvin who later died from the stab wounds. Her testimony
was supported by the Medico-Legal Reports marked as Exhibits "E" and "F". Any inconsistencies in such
peripheral details would not exculpate the appellant.
Appellant also asserts that he was insane or completely deprived of intelligence during the commission of the
alleged crimes, and therefore should be exempted from criminal liability in accordance with Article 12, Chapter
2 of the Revised Penal Code. 23 However, this claim is not supported by evidence. cSHIaA
Appellant offers his uncorroborated testimony as the only proof that he was insane at the time he committed the
crime. He testified that nine days before he committed the crime, he suffered from lack of appetite,
sleeplessness, and anxiety. In addition, he allegedly heard voices ordering him to kill bad people. He claims that
he does not remember anything that happened on 29 March 2000, when the crimes were committed, and that he
was already detained when he became conscious of his surroundings.
who pleads the exempting circumstance of insanity has the burden of proving beyond reasonable doubt that he
or she was insane immediately before or at the moment the crime was committed. 24
Insanity exists when there is a complete deprivation of intelligence while committing the act; i.e., when the
accused is deprived of reason, he acts without the least discernment because there is a complete absence of
power to discern, or there is total deprivation of freedom of the will. Mere abnormality of the mental faculties is
not enough, especially if the offender has not lost consciousness of his acts. Insanity is evinced by a deranged
and perverted condition of the mental faculties and is manifested in language and conduct. An insane person has
no full and clear understanding of the nature and consequences of his or her acts. 25
Even assuming that appellant's testimony is credible, his sleeplessness, lack of appetite, nervousness and his
hearing imaginary voices, while suggestive of an abnormal mental condition, cannot be equated with a total
deprivation of will or an absence of the power to discern. Mere abnormality of mental faculties will not exclude
imputability. The popular conception of the word "crazy" is used to describe a person or an act unnatural or out
of ordinary. Testimony that a person acted in a crazy or deranged manner days before the commission of the
crime does not conclusively prove that he is legally insane and will not grant him or her absolution. 26
Raquel Indon's narration of the events presents evidence that is more revealing of appellant's mental state at the
time the crime was committed. Appellant's reply to her pleas that her daughters' lives be spared, "Ngayon pa,
nagawa ko na", was a positive sign that he was aware of what he was doing, and that his reasoning faculties
were unimpaired. TcHDIA
The trial court found the testimony of Raquel Indon more credible than that of the accused, and its findings
were affirmed by the Court of Appeals. It is settled that when the trial court's findings have been affirmed by the
appellate court, said findings are generally conclusive and binding upon this Court. This Court does not
generally disturb the findings of fact of the trial court because it is in a better position to examine real evidence,
as well as to observe the demeanor of witnesses while testifying on the stand. Unless there is a clear showing
that it overlooked certain facts and circumstances that might alter the result of the case, the findings of fact
made by the trial court will be respected and even accorded finality by this Court. 27
The law presumes every man to be of sound mind. Otherwise stated, the law presumes that all acts are
voluntary, and that it is improper to presume that acts are done unconsciously. Thus, a person accused of a crime
18
It is also remarkable that appellant's testimony is not supported by his family's or intimate friends' accounts of
his purported insanity. Appellant testified that he had been suffering from symptoms of insanity nine days
before the incident. Insanity may be shown by the surrounding circumstances fairly throwing light on the
subject, such as evidence of the allegedly deranged person's general conduct and appearance, his conduct
consistent with his previous character and habits, his irrational acts and beliefs, as well as his improvident
bargains. 28 It is difficult to believe that appellant's behavior, conduct and appearance, which would denote
mental disturbance, escaped the notice of his family and friends.
Appellant draws attention to the results of the medical examination conducted by Dr. Regienald Afroilan in
2004, showing that he was suffering from Schizophrenia. It should be noted however that the examination was
taken four years after the crimes were committed, and that Dr. Afroilan admitted that his findings did not
include the mental state of petitioner four years before. The alleged insanity of an accused should relate to the
period immediately before or at the very moment the felony is committed, not at any time thereafter. Medical
findings of mental disorder, referring to a period after the time the crime was committed, will not exempt him
from criminal liability. 29
Appellant emphasizes the fact that he was a friend of the Indon family and would not have committed such
atrocities against them, unless he was totally deprived of reason. In People v. Madarang, 30 this Court ruled
that the fact that the accused had no quarrel with his victim prior to the killing does not prove the unstable
mental condition of the accused. Jurisprudence is replete with cases in which lives have been terminated for the
flimsiest reasons. aHcDEC
This Court will now discuss the imposition of penalties and modify those imposed by the Court of Appeals.
Appellant is guilty of Murder in Criminal Cases No. 1496-M-2000 and No. 1497-M-2000. The penalty for
murder is reclusion perpetua to death. There being neither mitigating nor aggravating circumstances, the penalty
for murder should be imposed in its medium period, or reclusion perpetua. 31 Thus, for the murder of Marvin
Indon and Melissa Indon, the penalty imposed on appellant is two sentences of reclusion perpetua.
When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for
the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and
(5) temperate damages. 32
Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the
commission of the crime. 33 Under prevailing jurisprudence, the award of P50,000.00 to the heirs of the victim
as civil indemnity is in order. 34 Thus, P50,000.00 is awarded to the heirs of Marvin Indon and P50,000.00 to
the heirs of Melissa Indon.
The heirs of Marvin Indon and Melissa Indon are not entitled to actual damages, because said damages were not
adequately proved. The party seeking actual damages must produce competent proof or the best evidence
obtainable, such as receipts, to justify an award therefor. 35 The funeral expenses, to which Raquel Indon
referred in her testimony, were not supported by receipts. Nevertheless, the award of P25,000.00 in temperate
damages for homicide or murder cases is proper when no evidence of burial or funeral expenses is presented in
the trial court. 36 Under Article 2224 of the Civil Code, temperate damages may be recovered, as it cannot be
denied that the heirs of the victim suffered pecuniary loss although the exact amount was not proved. 37 Thus,
the heirs of Marvin Indon and Melissa Indon are entitled to temperate damages of P25,000.00 for each death.
In cases of murder and homicide, the award of moral damages is mandatory, without need of allegation and
proof other than the death of the victim. 38 The award of P50,000.00 as moral damages is in order for the death
for Marvin Indon, and likewise for that of Melissa Indon. HTSaEC
Exemplary damages of P25,000.00 should also be awarded, since the qualifying circumstance of treachery was
firmly established. 39 Marvin Indon and Melissa Indon were both minors when they were killed by the
appellant. The killing by an adult of a minor child is treacherous. 40 Moreover, the victims in this case were
asleep when appellant barged into their house and attacked their family. The attack was clearly unprovoked, and
they were defenseless against him.
In Criminal Cases No. 1498-M-2000 and No. 1501-M-2000, appellant is guilty of the Attempted Murder of
Michelle Indon and Jeffer Indon. The penalty for Attempted Murder is prision correccional maximum to prision
mayor medium. Thus, the penalty imposed on the appellant is two sentences of six years of prision
19
correccional, as minimum, to ten years of prision mayor medium, as maximum, for the attempted murder of
Michelle Indon and Jeffer Indon. In addition to the moral damages of P10,000.00 for each victim, which the
Court of Appeals imposed, appellant is also ordered to pay civil indemnity of P20,000.00 41 and exemplary
damages of P25,000.00. 42
1. In Criminal Case No. 1496-M-2000, this Court additionally awards P25,000.00 as temperate damages and
P25,000.00 as exemplary damages to the heirs of Marvin Indon.
2. In Criminal Case No. 1497-M-2000, this Court additionally awards P25,000.00 as temperate damages and
P25,000.00 as exemplary damages to the heirs of Melissa Indon.
In Criminal Case No. 1499-M-2000, appellant is convicted of the crime of frustrated homicide of Ronaldo
Galvez. The penalty for frustrated homicide, there being no other mitigating or aggravating circumstances
attending the same, is five years of prision correccional as minimum to eight years and one day of prision
mayor as maximum. Moral damages in the amount of P25,000.00, awarded by the Court of Appeals, are
affirmed.
Appellant is guilty of Frustrated Murder in Criminal Case No. 1500-M-2000. The penalty for Frustrated Murder
is reclusion temporal, which must be imposed in its medium period, considering that there were neither
aggravating nor mitigating circumstances that were proven in this case. Applying the Indeterminate Sentence
Law, appellant should be sentenced to suffer the penalty of twelve years of prision mayor, as minimum, to
seventeen years and four months of reclusion temporal medium, as the maximum penalty. This Court affirms
the award by the Court of Appeals of (1) Civil Indemnity in the amount of P30,000.00; 43 (2) actual damages of
P46,343.00 for medical expenses, which are supported by receipts marked as Exhibits "I" and "J"; and (3) moral
damages of P25,000.00. Appellant is also ordered to pay exemplary damages of P25,000.00 based on the
finding that the assault against Raquel Indon was attended by treachery. 44 The essence of treachery is that the
attack is deliberate and without warning, done in a swift and unexpected manner of execution, affording the
hapless and unsuspecting victim no chance to resist or escape. 45 At the time Raquel was attacked, she was in
her home, unarmed and sleeping with her children. She was undoubtedly unprepared and defenseless to resist
appellant's attack on her and her young children. TAacHE
3. In Criminal Case No. 1498-M-2000, the Court additionally awards civil indemnity of P20,000.00 and
exemplary damages of P25,000.00 to Michelle Indon.
4. In Criminal Case No. 1499-M-2000, the appellant is sentenced to serve an indeterminate penalty of five years
of prision correccional as minimum to eight years and one day of prision mayor as maximum.
5. In Criminal Case No. 1500-M-2000, this Court additionally awards exemplary damages of P25,000.00 to
Raquel Indon.
6. In Criminal Case No. 1501-M-2000, this Court additionally awards civil indemnity of P20,000.00 and
exemplary damages of P25,000.00 to Jeffer Indon.
No costs. ACTESI
All the sums of money awarded to the victims and their heirs will accrue a 6% interest from the time of this
Decision until fully paid.
||| (People v. Domingo, G.R. No. 184343, [March 2, 2009], 599 PHIL 589-612)
WHEREFORE, the instant appeal is DENIED. The Decision of the Court of Appeals dated 30 April 2008 in
CA-G.R. CR No. 30511 is MODIFIED in accordance with the hereinabove discussion on penalties and award
of damages, to wit:
20
FIRST DIVISION
The Case for the Prosecution
[G.R. No. 166040. April 26, 2006.]
The spouses Domingo and Marilou Santos were residents of Pasay City. 4 One of their children, Debbielyn, was
born on December 8, 1994. 5 In 2002, she was a Grade II student at the Villamor Air Base Elementary School in
Pasay City 6 and attended classes from 12:00 noon to 6:00 p.m. 7
NIEL F. LLAVE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CALLEJO, SR., J p:
Before the Court is a Petition for Review of the Decision 1 of the Court of Appeals (CA) in CA-G.R. CR No.
26962 affirming, with modification, the Decision 2 of the Regional Trial Court (RTC) of Pasay City, Branch
109, in Criminal Case No. 02-1779 convicting Petitioner Neil F. Llave of rape.
Domingo eked out a living as a jeepney driver, while Marilou sold quail eggs at a nearby church. 8 Adjacent to
their house was that of Teofisto Bucud, a barbecue vendor who would usually start selling at 6:30 p.m. 9 Next to
Teofisto's residence was a vacant house. 10
Debbielyn testified that on September 24, 2002, she arrived home at past 6:00 p.m. She changed her clothes and
proceeded to her mother's store. Marilou asked her daughter to bring home the container with the unsold quail
eggs. 11 Debbielyn did as told and went on her way. As she neared the vacant house, she saw petitioner, who
suddenly pulled her behind a pile of hollow blocks which was in front of the vacant house. There was a little
light from the lamp post. 12 She resisted to no avail. 13 Petitioner ordered her to lie down on the cement.
Petrified, she complied. He removed her shorts and underwear then removed his own. He got on top of her. 14
She felt his penis being inserted into her vagina. He kissed her. 15 She felt pain and cried. 16 She was sure there
were passersby on the street near the vacant house at the time. ESCacI
On September 27, 2002, an Information charging petitioner (then only 12 years old) with rape was filed with the
RTC of Pasay City. The inculpatory portion of the Information reads:
That on or about the 24th day of September 2002, in Pasay City, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, NEIL LLAVE Y FLORES, aka NIEL F.
LLAVE, a minor over nine (9) years of age and under fifteen (15) but acting with discernment, by means of
force threat and intimidation, did then and there willfully, unlawfully, feloniously have carnal knowledge of the
complainant, DEBBIELYN SANTOS y QUITALES, a minor, seven (7) years of age, against her will and
consent.
Contrary to law. 3
It was then that Teofisto came out of their house and heard the girl's cries. He rushed to the place and saw
petitioner on top of Debbielyn, naked from the waist down. Teofisto shouted at petitioner, and the latter fled
from the scene. Teofisto told Debbielyn to inform her parents about what happened. 17 She told her father about
the incident. 18 Her parents later reported what happened to the police authorities. 19 Debbielyn told the police
that petitioner was a bad boy because he was a rapist. 20
Teofisto testified that at about 6:25 p.m. on September 24, 2002, he went out of their house to get his barbecue
grill. He heard someone moaning from within the adjacent vacant house. 21 He rushed to the place and saw
petitioner, naked from waist down, on top of Debbielyn, making pumping motions on her anus. 22 The girl was
crying. He shouted at petitioner, "Hoy, bakit ginawa mo 'yan?" 23 Petitioner hurriedly put his shorts on and fled.
24 Neighbors who had heard Teofisto shouting arrived. 25 Later, Teofisto gave a written statement to the police
investigator regarding the incident. 26
21
Domingo Santos testified that at about 6:30 p.m. that day, he was inside their house. His daughter, Kimberly
Rose, suddenly told him that Debbielyn had been raped near the vacant house by petitioner. 27 He rushed to the
place and found her daughter crying. When he asked her what happened, she replied that she had been abused.
He brought Debbielyn to their house and then left. 28 He then looked for petitioner and found him at his
grandmother's house. A barangay tanod brought petitioner to the barangay hall. 29 On September 25, 2002, he
brought her daughter to the Philippine General Hospital Child Protection Unit at Taft Avenue, Manila where she
was examined by Dr. Mariella S. Castillo.
Dr. Castillo declared on the witness stand that she was a physician at the Child Protection Unit of the Philippine
General Hospital. On September 25, 2002, she interviewed the victim who told her "Masakit ang pepe ko," "Nirape ako." 30 Dr. Castillo also conducted a genital examination on the child, and found no injury on the hymen
and perineum, but found scanty yellowish discharge between the labia minora. 31 There was also a fresh
abrasion of the perineal skin at 1 o'clock position near the anal opening. 32 She declared that the findings
support the theory that blunt force or penetrating trauma (such as an erect penis, finger, or any other foreign
body 33 ) was applied to the perineal area 34 not more than six or seven days before. 35 The abrasion could
have been caused on September 24, 2002. She found no spermatozoa in the vaginal area or injury at the external
genitalia; 36 neither did she find any other injury or abrasion on the other parts of the victim's body. 37 She
concluded that her findings were consistent with the victim's claim that she was sexually abused by petitioner.
Barangay Tanod Jorge Dominguez, for his part, testified that on September 24, 2002, Marilou Santos arrived at
the barangay hall and reported that her daughter had been raped by petitioner who was then in his aunt's house
at Cadena de Amor Street. Barangay Captain Greg Florante ordered him and Barangay Tanod Efren Gonzales to
proceed to Cadena de Amor Street and take the boy into custody, and they did as they were told. 38
Petitioner testified and declared that he was a freshman at the Pasay City South High School. 41 He had been
one of the three outstanding students in grade school and received awards such as Best in Mathematics. 42 He
also finished a computer course and received a Certificate of Completion from the Philippine Air Force
Management Information Center. 43 He denied having raped the private complainant. He declared that at 6:30
p.m. on September 24, 2002, he was outside of their house to buy rice in the carinderia 44 and he saw her on his
way back. 45 He also met his father, who asked him what he had done to their neighbor. He was also told that
the victim's father was so angry that the latter wanted to kill him. 46 He did not ask his father for the name of
the angry neighbor. He was also told to pass by Cadena de Amor Street in going to his aunt's house. Petitioner
also declared that his mother prodded him to go to his aunt's house. 47 Later, Domingo and Barangay Tanod
Jorge Dominguez arrived at his aunt's house and brought him to the barangay hall. He did not know of any
reason why Debbielyn and her parents would charge him with rape. 48
Petitioner also declared that he played cards with Debbielyn. 49 While confined at the Pasay City Youth Home
during trial, he had a crush on "Issa," a young female inmate. Using a piece of broken glass (bubog) about halfan-inch long, he inscribed her name on his right thigh, left leg and left arm. 50
Nida Llave testified and identified her son's Certificate of Live Birth, in which it appears that he was born on
March 6, 1990. 51 She declared that at about 6:30 p.m. on September 24, 2000, Marilou Santos and Marilyn
Bucud arrived in their house looking for her son. According to Marilyn, her son had raped the private
complainant. She went to their house to look for her son and came across Domingo Santos who threatened to
kill her son. She and her husband proceeded to the house of his sister Josefina at Cadena de Amor Street where
petitioner had hidden for a while. 52
The Case for the Accused
At the conclusion of the trial, the court rendered judgment convicting Neil of the crime charged. The decretal
portion of the decision reads:
Petitioner, through counsel, presented Dr. Castillo as witness. She declared that the abrasions in the perineal
area could have been caused while the offender was on top of the victim. 39 She explained that the distance
between the anus and the genital area is between 2.5 to 3 centimeters. 40 The abrasion was located at 1/4 of an
inch from the anal orifice. DICSaH
FROM ALL THE FOREGOING, the Court opines that the prosecution has proven the guilt of the . . . Niel
Llave y Flores beyond reasonable doubt when he forcibly pulled the complainant towards the vacant lot, laid on
top of her and had carnal knowledge with the [complainant] against her will and consent who is only seven (7)
years old (sic). Moreover, he being a minor, he cannot be meted with the Death penalty.
22
WHEREFORE, the Court finds the CICL [Child in Conflict with the Law] Niel Llave y Flores guilty beyond
reasonable doubt, and crediting him with the special mitigating circumstance of minority, this Court hereby
sentences him to prision mayor minimum, Six (6) years and One (1) day to Eight (8) years, and pay civil
indemnity of Fifty Thousand Pesos (Php50,000.00). 53
The trial court declared that based on the evidence of the prosecution that petitioner pushed the victim towards
the vacant house and sexually abused her, petitioner acted with discernment. It also considered petitioner's
declaration that he had been a consistent honor student. 54
Petitioner appealed the decision to the CA, where he averred the following in his Brief as appellant therein:
III
THE LOWER COURT ERRED IN UPHOLDING THE THEORY OF THE PROSECUTION OF RAPE BY
HAVING CARNAL KNOWLEDGE, BEING CONTRARY TO THE PHYSICAL EVIDENCE. 55
The CA rendered judgment affirming the decision with modification as to the penalty meted on him.
WHEREFORE, the decision subject of the instant appeal is hereby MODIFIED in that the accused-appellant is
sentenced to an indeterminate penalty of two (2) years and four (4) months of prision correccional medium as
the minimum to eight (8) years and one (1) day of prision mayor medium as the maximum. Additionally, the
accused-appellant is ordered to pay the complaining witness the amount of P50,000 by way of moral damages
and P20,000 by way of exemplary damages.
SO ORDERED. 56
THE LOWER COURT ERRED WHEN IT DISREGARDED THE MATERIAL INCONSISTENCIES OF THE
TESTIMONY OF COMPLAINING WITNESS WITH THAT OF THE MEDICAL REPORT ON THE
FACTUAL ALLEGATION OF BLEEDING.
Petitioner filed a Motion for the Reconsideration, 57 contending that the prosecution failed to adduce proof that
he acted with discernment; hence, he should be acquitted. The appellate court denied the motion in a Resolution
58 dated November 12, 2004 on the following finding:
II
As regards the issue of whether the accused-appellant acted with discernment, his conduct during and after the
"crime" betrays the theory that as a minor, the accused-appellant does not have the mental faculty to grasp the
propriety and consequences of the act he made. As correctly pointed out by the prosecution, the fact that
forthrightly upon discovery, the accused-appellant fled the scene and hid in his grandmother's house intimates
that he knew that he did something that merits punishment.
THE LOWER COURT ERRED WHEN IT GAVE CREDENCE TO THE TESTIMONY OF THE
PROSECUTION WITNESS TEOFISTO BUCUD WHO HAS REASON TO FABRICATE A SCENARIO
AGAINST ACCUSED-APPELLANT BECAUSE HE HAS PERSONAL VENDETTA AGAINST THE
LATTER'S FAMILY/RELATIVES.
23
Contrary to the urgings of the defense, the fact that the accused-appellant is a recipient of several academic
awards and is an honor student further reinforces the finding that he [is] possessed [of] intelligence well beyond
his years and is thus poised to distinguish, better at least than other minors his age could, which conduct is right
and which is morally reprehensible. 59
Petitioner now raises the following issues and arguments in the instant petition before this Court:
THE MATERIAL INCONSISTENCIES BETWEEN THE TESTIMONY OF COMPLAINING WITNESS

WITH THE MEDICAL REPORT BELIE THE FINDING OF RAPE.
ISSUES
II
PRIVATE COMPLAINANT IS NOT A CREDIBLE WITNESS.
WHETHER OR NOT EVIDENCE WAS SUFFICIENT TO CONVICT PETITIONER BEYOND

REASONABLE DOUBT.
III
PETITIONER ACTED WITHOUT DISCERNMENT.

II
IV
WHETHER OR NOT PETITIONER, WHO WAS A MINOR ABOVE 9 YEARS BUT BELOW 15 YEARS OF
AGE AT THE TIME OF THE CRIME, ACTED WITH DISCERNMENT.
THE TESTIMONY RELIED UPON BY THE PROSECUTION IS HEARSAY.
III
V
WHETHER OR NOT PETITIONER WAS DENIED DUE PROCESS OF LAW.
THE COMPLAINT IS FABRICATED.
ARGUMENTS
VI
24
PETITIONER WAS DENIED DUE PROCESS OF LAW. 60
The issues raised by the petitioner in this case may be summarized as follows: (1) whether he was deprived of
his right to a preliminary investigation; (2) whether he had carnal knowledge of the private complainant, and if
in the affirmative, whether he acted with discernment in perpetrating the crime; (3) whether the penalty imposed
by the appellate court is correct; and (4) whether he is liable to pay moral damages to the private complainant.
On the first issue, petitioner avers that he was deprived of his right to a preliminary investigation before the
Information against him was filed.
On the second issue, petitioner claims that the prosecution failed to prove beyond reasonable doubt that he had
carnal knowledge of Debbielyn. He insists that her testimony is inconsistent on material points. He points out
that she claimed to have felt pain in her vagina when petitioner inserted his penis to the point that she cried; this,
however, is negated by Dr. Castillo's report stating that there was no evidence of injury on the victim's external
genitalia. Petitioner maintains that as against the victim's testimony and that of Dr. Castillo's report, the latter
should prevail.
According to petitioner, mere touching of the female organ will not suffice as factual basis of conviction for
consummated rape. Moreover, the victim's testimony lacks credibility in view of her admission that, while she
was being allegedly ravished by him, there were passersby along the street. Besides, petitioner avers, an
abrasion may be caused by an invasion of the body through the protective covering of the skin. Petitioner insists
that the prosecution failed to prove the cause of the abrasion.
Petitioner avers that Teofisto Bucud's testimony has no probative weight because and had an ill-motive to testify
against him. Petitioner stated, on cross-examination, that his uncle, Boy, had the house rented by Teofisto
demolished. Petitioner avers that the witness persuaded the victim's parents to complain against him, as gleaned
from the testimony of Police Investigator Milagros Carroso.
For its part, the Office of the Solicitor General (OSG) avers that petitioner was subjected to an inquest
investigation under Section 7, Rule 112 of the Revised Rules of Criminal Procedure, as gleaned from the
Certification of the City Prosecutor incorporated in the Information. It avers that the absence of external injuries
does not negate rape; neither is it necessary that lacerations be found on the hymen of a victim. Rape is
consummated if there is some degree of penetration within the vaginal surface. Corroborative evidence is not
necessary to prove rape. As long as the testimony of the victim is credible, such testimony will suffice for
conviction of consummated rape. When the victim testified that she was raped, she was, in effect, saying all that
is necessary to prove that rape was consummated. Petitioner's evidence to prove ill-motive on the part of
Teofisto Bucud in testifying against him is at best flimsy. Moreover, it is incredible that the victim and her
parents would charge petitioner with rape solely on Teofisto's proddings.
The OSG insists that the petitioner acted with discernment before, during, and after the rape based on the
undisputed facts. The submission of the OSG follows:
Petitioner argues that since he was only 12 years old at the time of the alleged rape incident, he is presumed to
have acted without discernment under paragraph 3 of Article 12 of the Revised Penal Code. Under said
provision, the prosecution has the burden of proving that he acted with discernment. In the instant case,
petitioner insists that there was no evidence presented by the prosecution to show that he acted with
discernment. Hence, he should be exempt from criminal liability.
Petitioner's arguments are bereft of merit.

Petitioner also claims that the victim was tutored or coached by her parents on her testimony before the trial
court. Dr. Castillo testified that when she interviewed Debbielyn, the latter admitted to her that she did not
understand the meaning of the word "rape" and its Filipino translation, "hinalay," and that the genital
examination of the girl was at the insistence of the latter's parents.
Discernment, as used in Article 12(3) of the Revised Penal Code is defined as follows: "the discernment that
constitutes an exception to the exemption from criminal liability of a minor under fifteen (15) years of age but
over nine (9), who commits an act prohibited by law, is his mental capacity to understand the difference
between right and wrong" (People v. Doquena, 68 Phil. 580 [1939]). For a minor above nine but below fifteen
25
years of age, he must discern the rightness or wrongness of the effects of his act (Guevarra v. Almodova, G.R.
No. 75256, January 26, 1989).
Professor Ambrocio Padilla, in his annotation of Criminal Law (p. 375, 1998 Ed.), writes that "discernment is
more than the mere understanding between right and wrong. Rather, it means the mental capacity of a minor
between 9 and 15 years of age to fully appreciate the consequences of his unlawful act" (People v. Navarro,
[CA] [51 O.G. 4062]). Hence, in judging whether a minor accused acted with discernment, his mental capacity
to understand the difference between right and wrong, which may be known and should be determined by
considering all the circumstances disclosed by the record of the case, his appearance, his attitude and his
behavior and conduct, not only before and during the commission of the act, but also after and even during the
trial should be taken into consideration (People v. Doquena, supra).
In the instant case, petitioner's actuations during and after the rape incident, as well as his behavior during the
trial showed that he acted with discernment.
The fact appears undisputed that immediately after being discovered by the prosecution's witness, Teofisto
Bucud, petitioner immediately stood up and ran away. Shortly thereafter, when his parents became aware of the
charges against him and that private complainant's father was looking for him, petitioner went into hiding. It
was not until the Barangay Tanod came to arrest him in his grandmother's house that petitioner came out in the
open to face the charges against him. His flight as well as his act of going into hiding clearly conveys the idea
that he was fully aware of the moral depravity of his act and that he knew he committed something wrong.
Otherwise, if he was indeed innocent or if he was not least aware of the moral consequences of his acts, he
would have immediately confronted private complainant and her parents and denied having sexually abused
their daughter.
During the trial, petitioner submitted documentary evidence to show that he was a consistent honor student and
has, in fact, garnered several academic awards. This allegation further bolstered that he acted with discernment,
with full knowledge and intelligence. The fact that petitioner was a recipient of several academic awards and
was an honor student further reinforces the finding that he was possessed of intelligence well beyond his years
and thus was able to distinguish, better than other minors of his age could, which conduct is right and which is
morally reprehensible. Hence, although appellant was still a minor of twelve years of age, he possessed
intelligence far beyond his age. It cannot then be denied that he had the mental capacity to understand the
difference between right and wrong. This is important in cases where the accused is minor. It is worthy to note
that the basic reason behind the enactment of the exempting circumstances under Article 12 of the Revised
Penal Code is the complete absence of intelligence, freedom of action, or intent on the part of the accused. In
expounding on intelligence as the second element of dolus, the Supreme Court has stated: "The second element
of dolus is intelligence; without this power, necessary to determine the morality of human acts to distinguish a
licit from an illicit act, no crime can exist, and because . . . the infant has no intelligence, the law exempts (him)
from criminal liability" (Guevarra v. Aldomovar, 169 SCRA 476 [1989], at page 482).
The foregoing circumstances, from the time the incident up to the time the petitioner was being held for trial,
sufficiently satisfied the trial court that petitioner acted with discernment before, during and after the rape
incident. For a boy wanting in discernment would simply be gripped with fear or keep mum. In this case,
petitioner was fully aware of the nature and illegality of his wrongful act. He should not, therefore, be exempted
from criminal liability. The prosecution has sufficiently proved that petitioner acted with discernment. 61
In reply, petitioner asserts that the only abrasion found by Dr. Castillo was on the peri-anal skin and not in the
labia of the hymen. He further insists that there can be no consummated rape absent a slight penetration on the
female organ. It was incumbent on the prosecution to prove that the accused acted with discernment but failed.
The mere fact that he was an honor student is not enough evidence to prove that he acted with discernment.
The petition is not meritorious.
On the first issue, petitioner's contention that he was deprived of his right to a regular preliminary investigation
is barren of factual and legal basis. The record shows that petitioner was lawfully arrested without a warrant.
Section 7, Rule 112 of the Revised Rules of Criminal Procedure provides:
SEC. 7. When accused lawfully arrested without warrant. When a person is lawfully arrested without a
warrant involving an offense which requires a preliminary investigation, the complaint or information may be
filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance
26
with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the
offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party
or arresting officer or person.
lie down. He then removed her shorts and panty and spread her legs. He then mounted her and inserted his penis
into her vagina:
Fiscal Barrera:
Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the
investigation must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary investigation, the accused may,
within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right
to adduce evidence in his defense as provided for in this Rule.
Q: From what time up to what time?
A: From 12:00 o'clock noon up to 6:00 p.m.
Q: September 24, 2002 and going over the calendar, it was Tuesday. Did you go to school from 12:00 o'clock
noon up to 6:00 p.m.?
As gleaned from the Certification 62 of the City Prosecutor which was incorporated in the Information,
petitioner did not execute any waiver of the provisions of Article 125 of the Revised Penal Code before the
Information was filed. He was arraigned with the assistance of counsel on October 10, 2002, and thereafter filed
a petition for bail. 63 Petitioner's failure to file a motion for a preliminary investigation within five days from
finding out that an Information had been filed against him effectively operates as a waiver of his right to such
preliminary investigation. 64
On the second issue, a careful review of the records shows that the prosecution adduced evidence to prove
beyond reasonable doubt that petitioner had carnal knowledge of the private complainant as charged in the
Information. In People v. Morata 65 the Court ruled that penetration, no matter how slight, or the mere
introduction of the male organ into the labia of the pudendum, constitutes carnal knowledge. Hence, even if the
penetration is only slight, the fact that the private complainant felt pains, points to the conclusion that the rape
was consummated. 66
A: Yes, Sir, on the same date I went to school.
Q: At about 6:00 p.m., Sept. 24, 2002, where were you?
A: I went home.
Q: And by whom you are referring to your house at 1-C Carnation St., R. Higgins, Maricaban, Pasay City?
A: Yes, Sir.
From the victim's testimony, it can be logically concluded that petitioner's penis touched the middle part of her
vagina and penetrated the labia of the pudendum. She may not have had knowledge of the extent of the
penetration; however, her straightforward testimony shows that the rape passed the stage of consummation. 67
She testified that petitioner dragged her behind a pile of hollow blocks near the vacant house and ordered her to
Q: And what did you do after you went home?
27
A: I changed my clothes and then I proceeded to the store of my mother.
Q: What were these things you were asked by your mother to bring home?
Q: And where is that store of your mother where you went?
A: The things she used in selling.
A: It is near our house, walking distance.
Q: And did you obey what your mother told you to bring home something?
Q: What is your mother selling in that store?
A: Yes, Sir.
A: She sells quail eggs.
Q: And what happened to you in going to your house?
Q: And were you able to immediately go to the store of your mother where she was selling quail eggs?
A: Totoy pulled me.
A: Yes, sir.
Q: Pulled you where?
Q: And that was past 6:00 p.m. already?
A: Totoy pulled me towards an uninhabited house.
A: Yes, sir.
Q: What happened after Totoy pulled you in an uninhabited house?
Q: And what happened when you went to the store where your mother is selling quail eggs past 6:00 p.m.?
A: He told me to lie down on the cement.
A: My mother asked me to bring home something.
Q: What happened after he laid you down on the cement?
28
A: He removed my shorts and panty. He also removed his shorts.
Q: Who heard you crying?
Q: After Totoy removed your shorts and panty and he also removed his shorts, what happened next?
A: Kuya Teofe, Sir.
A: He inserted his penis inside my vagina.
Q: What happened after you cried and when somebody heard you crying?
Q: What did you feel when Totoy inserted his penis inside your vagina?
A: Totoy ran away.
A: It was painful.
Q: After Totoy ran away, what happened next?
Q: Aside from inserting his penis inside your vagina, what else did he do to you?
A: When Totoy ran away, I was left and Kuya Teofe told me to tell the matter to my parents.
A: He kissed me on my lips.
Q: Did you tell your parents what Totoy did to you?
Q: After Totoy inserted his penis inside your vagina and kissed you on your lips, what did you do?
A: Yes, Sir. 68
A: I cried.
On cross-examination, the victim was steadfast in her declarations:
Q: What happened when you were crying when he inserted his penis inside your vagina and kissed you on your
lips. What happened next?
ATTY. BALIAD:
A: Somebody heard me crying.
Q: Again, in what particular position were you placed by Totoy when he inserted his penis inside your vagina?
cHITCS
29
Atty. Baliad:
A: I was lying down.
Q: Aside from lying down, how was your body positioned at that time?
A: He placed on top of me.
Q: After he placed on top of you, what else did he do to you, if any?
A: He started to kiss me and then he inserted his penis inside my vagina.
Q: Did you feel his penis coming in into your vagina?
A: Yes, Sir.
Q: Are you sure that his penis was inserted inside your vagina?
A: Yes, Sir. 69
When questioned on cross-examination whether she could distinguish a vagina from an anus, the victim
declared that she could and proceeded to demonstrate. She reiterated that the penis of petitioner penetrated her
vagina, thus, consummating the crime charged:
Q: Do you recall having stated during the last hearing that the accused, Neil Llave or "Totoy" inserted his penis
in your vagina, do you recall that?
A: Yes, Sir.
Q: And likewise, you testified that you feel that the penis of Neil entered your vagina?
A: Yes, Sir.
Q: Could you distinguish vagina from your anus?
A: Yes, Sir.
Q: Where is your "pepe"?
A: (Witness pointing to her vagina.)
Q: Where is your anus?
A: (Witness pointing at her back, at the anus.)
30
Q: In your statement, am I correct to say that Neil, the accused in this case penetrated only in your vagina and
not in your anus?
A: Yes, Sir.
Q: Could you distinguish vagina from your anus?

A: Yes, Sir.
A: Yes, Sir.
Q: So that, your anus was not even touched by the accused neither by his penis touched any part of your anus?
Q: Where is your "pepe"?
A: He did not insert anything on my anus, Sir. 70
A: (Witness pointing to her vagina.)
While it is true that Dr. Castillo did not find any abrasion or laceration in the private complainant's genitalia,
such fact does not negate the latter's testimony the petitioner had carnal knowledge of her. The absence of
abrasions and lacerations does not disprove sexual abuses, especially when the victim is a young girl as in this
case. 71 According to Dr. Castillo, the hymen is elastic and is capable of stretching and reverting to its original
form. 72 The doctor testified that her report is compatible with the victim's testimony that she was sexually
assaulted by petitioner:
Q: Where is your anus?
A: (Witness pointing at her back, at the anus.)

Atty. Baliad:
Q: In your statement, am I correct to say that Neil, the accused in this case penetrated only in your vagina and
not in your anus?
Q: Do you recall having stated during the last hearing that the accused, Neil Llave or "Totoy" inserted his penis
in your vagina, do you recall that?
A: Yes, Sir.
A: Yes, Sir.
Q: So that, your anus was not even touched by the accused neither by his penis touched any part of your anus?
Q: And likewise, you testified that you feel (sic) that the penis of Neil entered your vagina?
A: He did not insert anything on my anus, Sir.
31
Fiscal Barrera:
xxx xxx xxx
The answer were provided. . . .
Fiscal Barrera:
Court:
Q: Based on your testimony doctor, and the medico genital examination propounded on the report that the
victim here, Debbielyn Santos is complaining that around 6:00 in the evening of September 24, 2002, she was
sexually abused and that on the following day, September 25, you interviewed her and stated to you that her
genitalia was hurting and in binocular (sic) "masakit ang pepe ko, ni-rape ako," would your findings as
contained in this Exh. B and C be compatible with the allegation if the minor victim that she was sexually
abused on September 24. 2002 at around 6:00 p.m.?
The doctor is being asked whether or not her findings is compatible with the complaint of the minor. Overruled.
Answer.
Witness:
Atty. Baliad:
A It is compatible with the allegation of the minor.
Objection, Your Honor. The one who narrated the incident is the mother.
Fiscal Barrera:
Court:
What is your objection?
Confronting you again with your two (2) medico-genital documents, the Provincial and Final Report mark[ed]
in evidence as Exhs. B and C, at the lower portion of these two exhibits there appears to be a signature above
the typewritten word, Mariella Castillo, M.D., whose signature is that doctor?
Atty. Baliad:
A Both are my signatures, Sir. 73
The objection, Your Honor, is the question propounded is that it was the minor who made the complaint
regarding the allegation.
Dr. Castillo even testified that the abrasion near the private complainant's anal orifice could have been caused
by petitioner while consummating the crime charged:
32
Fiscal Barrera:
Q: With your answer, would it be possible doctor that in the process of the male person inserting his erect penis
inside the vagina, in the process, would it be possible that this abrasion could have been caused while in the
process of inserting the penis into the vagina touch the portion of the anus where you find the abrasion?
A: It is possible, Sir.
Q: Now, are you aware, in the course of your examination, that the alleged perpetrator is a 12-year-old minor?
A: I only found it out, Sir, when I testified.
remained steadfast despite rigorous and intensive cross-examination by the indefatigable counsel of the
petitioner. She spontaneously pointed to and identified the petitioner as the perpetrator.
It is inconceivable that the private complainant, then only a seven-year old Grade II pupil, could have woven an
intricate story of defloration unless her plaint was true. 75 The Presiding Judge of the trial court observed and
monitored the private complainant at close range as she testified and found her testimony credible. Case law is
that the calibration by the trial court of the evidence on record and its assessment of the credibility of witnesses,
as well as its findings of facts and the conclusions anchored on said findings, are accorded conclusive effect by
this Court unless facts and circumstances of substance were overlooked, misconstrued or misinterpreted, which,
if considered would merit a nullification or reversal of the decision. We have held that when the offended party
is young and immature, from the age of thirteen to sixteen, courts are inclined to give credence to their account
of what transpired, considering not only their relative vulnerability but also the shame and embarrassment to
which they would be exposed if the matter to which they testified is not true. 76
Neither do we lend credence to petitioner's claim that the charge against him is but a fabrication and concoction
of the private complainant's parents. Indeed, petitioner admitted in no uncertain terms that the spouses had no
ill-motive against him. Thus, Neil testified as follows:
Q: Do you still recall your answer that a 12-year-old boy could cause an erection of his penis?
Fiscal Barrera:
A: Yes, sir.
Q: To enlight[en] us doctor, we, not being a physician, at what age could a male person can have erection?
Q: As you testified earlier that you have played post cards with Debbielyn Santos alias Lyn-lyn and you have no
quarrel or misunderstanding with Lyn-lyn. Do you know of any reason why Lyn-lyn complaint (sic) against you
for sexual abuse?
A: Even infants have an erection. 74
A: I don't know of any reason, Sir.
Petitioner's contention that the private complainant was coached by her parents into testifying is barren of merit.
It bears stressing that the private complainant testified in a straightforward and spontaneous manner and
Q: You also testified that you do not have any quarrel or misunderstanding with Lyn-lyn's parents, spouses
Domingo Santos, Jr. and Marilou Santos, do you think of any reason as to why they would file a complaint
against you for molesting their 7-year-old daughter?
33
A: I do not know of any reason why they filed a complaint against me, Sir.
Fiscal Barrera:
That would be all, Your Honor. 77
There is no evidence that the parents of the offended party coached their daughter before she testified. No
mother or father would stoop so low as to subject their daughter to the tribulations and the embarrassment of a
public trial knowing that such a traumatic experience would damage their daughter's psyche and mar her life if
the charge is not true. 78
On the other hand, when the parents learned that their daughter had been assaulted by petitioner, Domingo tried
to locate the offender and when he failed, he and his wife reported the matter to the barangay authorities. This
manifested their ardent desire to have petitioner indicted and punished for his delictual acts.
That petitioner ravished the victim not far from the street where residents passed by does not negate the act of
rape committed by petitioner. Rape is not a respecter of time and place. The crime may be committed by the
roadside and even in occupied premises. 79 The presence of people nearby does not deter rapists from
committing the odious act. 80 In this case, petitioner was so daring that he ravished the private complainant near
the house of Teofisto even as commuters passed by, impervious to the fact that a crime was being committed in
their midst.
Case law has it that in view of the intrinsic nature of rape, the only evidence that can be offered to prove the
guilt of the offender is the testimony of the offended party. Even absent a medical certificate, her testimony,
standing alone, can be made the basis of conviction if such testimony is credible. Corroborative testimony is not
essential to warrant a conviction of the perpetrator. 81 Thus, even without the testimony of Teofisto Bucud, the
testimonies of the offended party and Dr. Castillo constitute evidence beyond reasonable doubt warranting the
conviction of petitioner.
Teofisto's testimony cannot be discredited by petitioner simply because his uncle caused the demolition of the
house where Teofisto and his family were residing. It bears stressing that Teofisto gave a sworn statement to the
police investigator on the very day that the petitioner raped Debbielyn and narrated how he witnessed the crime
being committed by the petitioner. 82 In the absence of proof of improper motive, the presumption is that
Teofisto had no ill-motive to so testify, hence, his testimony is entitled to full faith and credit. 83
The trial court correctly ruled that the petitioner acted with discernment when he had carnal knowledge of the
offended party; hence, the CA cannot be faulted for affirming the trial court's ruling.
Article 12, paragraph 3 of the Revised Penal Code provides that a person over nine years of age and under
fifteen is exempt from criminal liability, unless he acted with discernment. The basic reason behind the
exempting circumstance is complete absence of intelligence, freedom of action of the offender which is an
essential element of a felony either by dolus or by culpa. Intelligence is the power necessary to determine the
morality of human acts to distinguish a licit from an illicit act. 84 On the other hand, discernment is the mental
capacity to understand the difference between right and wrong. The prosecution is burdened to prove that the
accused acted with discernment by evidence of physical appearance, attitude or deportment not only before and
during the commission of the act, but also after and during the trial. 85 The surrounding circumstances must
demonstrate that the minor knew what he was doing and that it was wrong. Such circumstance includes the
gruesome nature of the crime and the minor's cunning and shrewdness.
In the present case, the petitioner, with methodical fashion, dragged the resisting victim behind the pile of
hollow blocks near the vacant house to insure that passersby would not be able to discover his dastardly acts.
When he was discovered by Teofisto Bucud who shouted at him, the petitioner hastily fled from the scene to
escape arrest. Upon the prodding of his father and her mother, he hid in his grandmother's house to avoid being
arrested by policemen and remained thereat until barangay tanods arrived and took him into custody.
The petitioner also testified that he had been an outstanding grade school student and even received awards.
While in Grade I, he was the best in his class in his academic subjects. He represented his class in a quiz bee
contest. 86 At his the age of 12, he finished a computer course.
34
In People v. Doquea, 87 the Court held that the accused-appellant therein acted with discernment in raping the
victim under the following facts:
Taking into account the fact that when the accused Valentin Doquea committed the crime in question, he was a
7th grade pupil in the intermediate school of the municipality of Sual, Pangasinan, and as such pupil, he was
one of the brightest in said school and was a captain of a company of the cadet corps thereof, and during the
time he was studying therein he always obtain excellent marks, this court is convinced that the accused, in
committing the crime, acted with discernment and was conscious of the nature and consequences of his act, and
so also has this court observed at the time said accused was testifying in his behalf during the trial of this case.
88
||| (Llave v. People, G.R. No. 166040, [April 26, 2006], 522 PHIL 340-368)
FIRST DIVISION
[G.R. No. 5418. February 12, 1910.]
THE UNITED STATES, plaintiff-appellee, vs. CECILIO TANEDO, defendant-appellant.
The CA ordered petitioner to pay P50,000.00 as moral damages and P20,000.00 as exemplary damages. There
is no factual basis for the award of exemplary damages. Under Article 2231, of the New Civil Code, exemplary
damages may be awarded if the crime was committed with one or more aggravating circumstances. In this case,
no aggravating circumstance was alleged in the Information and proved by the People; hence, the award must
be deleted.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The decision of the Court of
Appeals in CA-G.R. CR No. 26962 is AFFIRMED WITH MODIFICATION that the award of exemplary
damages is DELETED. aADSIc
SO ORDERED.
Panganiban, C.J., Ynares-Santiago and Austria-Martinez, JJ., concur.
O'Brien & De Witt, for appellant.
Solicitor-General Harvey, for appellee.
SYLLABUS
1. JUSTIFIABLE HOMICIDE; CRIMINAL RESPONSIBILITY. If life i taken by misfortune or accident

while the actor is in the performance of a lawful act executed with due care and without intention of doing
harm, there is no criminal liability.
2. ID.; ID.; BURDEN OF PROOF. When the accused, under the plea of accidental killing, offers testimony
tending to prove the substance of his plea, the burden is upon the State to show beyond a reasonable doubt that
the killing was intentional.
Chico-Nazario, J., is on official leave.
35
DECISION
MORELAND, J p:
The defendant in this case was accused of the crime of murder committed, as alleged in the information, as
follows:
"That on or about the 26th day of January of this year, the said accused, with the intention of killing Feliciano
Sanchez, invited him to hunt wild chickens, and, upon reaching the forest, with premeditation shot him in the
breast with a shotgun which destroyed the heart and killed the said Sanchez, and afterwards, in order to hide the
crime, buried the body of the deceased in a well. The motive is unknown. The premeditation consists in that the
accused had prepared his plans to take the deceased to the forest, there to kill him, so that no one could see it,
and to bury him afterwards secretly in order that the crime should remain unpunished."
The defendant was found guilty of homicide by the Court of First instance of the Province of Tarlac and
sentenced to fourteen years eight months and one day of reclusion temporal, accessories, indemnification and
costs. The defendant appealed.
There is very little dispute about the facts in this case, in fact no dispute at all as to the important facts. The
accused was a landowner. On the morning of the 26th of January, 1909, he, with Bernardino Tagampa, Casimiro
Pascual, Valeriano Paulillo, and Juan Arellano, went to work on a malecon or dam on his land. The defendant
took with him a shotgun and a few shells, with the intention to hunt wild chickens after he had set his laborers at
work. He remained with his laborers an hour or so and then went a short distance away across a stream to see
how the alteration which he had made in the malecon affected the flow of water from the rice field on the other
side of the stream. He carried his shotgun with him across the stream. On the other side of the stream he met the
deceased, who, with his mother and uncle, had been living in a small shack for a month or so during the riceharvesting season. The accused asked the uncle of the deceased where he could find a good place in which to
hunt wild chickens. The uncle was lying on the floor in the interior of the shack sick of fever. The deceased, a
young man about 20 years of age, was working at something under a manga tree a short distance from the
shack. Although the accused directed his question to the uncle inside of the shack, the deceased answered the
question and pointed out in a general way a portion of the forest near the edge of which stood the shack. There
is some contradiction between the testimony of the accused and the Government witnesses just at this point. The
uncle of the deceased testified that the boy and the accused invited each other mutually to hunt wild chickens
and that the accused accepted the invitation. The accused, however, testified that he did not invite the deceased
to go hunting with him, neither did the deceased go with him, but that he remained under the manga tree "tying
something." At any rate the accused went into the forest with his gun. What took place there is unknown to
anybody except the accused. Upon the subject he testimony as follows:
"And after Feliciano Sanchez pointed out that place to me, that place where the wild chickens were to be found,
I proceeded to hunt, because, in the first place, if I could kill some wild chickens we would have something to
eat on that day. So when I arrived at that place I saw a wild chicken and I shot him. And after I shot that chicken
I heard a human cry. I picked up the chicken and went near the place where I heard the noise, and after I saw
that I had wounded a man I went back toward the malecon, where my companions were working, running back,
and when I arrived there I left my shotgun behind or by a tree not far from where my companions were
working; and I called Bernardino Tagampa to tell him about the occurrence, and to him I told of that occurrence
because he is my friend and besides that he was a relative of the deceased, and when Tagampa heard of this he
and myself went together to see the dead body."
Only one shot was heard that morning and a chicken was killed by a gunshot wound. Chicken feathers were
found in considerable quantities at the point where the chicken was shot and where the accident occurred. The
defendant within a few minutes after the accident went out of the woods to the malecon where he had left his
laborers at work, carrying the dead chicken with him. The accused called Bernardino Tagampa, one of the
laborers, to go with him and they disappeared for some time. Tagampa says that they went a little way toward
the woods and came back. The accused says that they went to the place where the body of the deceased lay and
removed it to a place in the cogon grass where it would not be easily observed. It is certain, however, that the
body was concealed in the cogon grass. During the afternoon Tagampa left the malecon, where his fellow
laborers were working, probably to hunt for a place in which to hide the body. The rest of the laborers saw the
witness Yumul take the chicken which had been killed by the accused. He delivered it to the wife of the
accused, who testified that she received the chicken from Yumul and that it had been killed by a gunshot wound.
That evening the accused and Tagampa went together to dispose of the body finally. They took it from the
cogon grass where it lay concealed and carried it about seventeen or eighteen hundred meters from the place
where it had originally fallen, and buried it in an old well, covering it with straw and earth and burning straw on
top of the well for the purpose of concealing it. Tagampa said that he helped the accused dispose of the body
because he was afraid of him, although he admits that the accused in no way threatened or sought to compel
him to do so. The defendant prior to the trial denied all knowledge of the death of the deceased or the
whereabouts of the body. On the trial, however, he confessed his participation in the death of the deceased and
told the story substantially as above.
36
So far as can be ascertained from the evidence the prior relations between the accused and the deceased had
been normal. The deceased was a tenant on land belonging to a relative of the accused. There was no enmity
and no unpleasant relations between them. No attempt was made to show any. There appears to have been no
motive whatever for the commission of the crime. The Government has not attempted to show any. The only
possible reason that the accused could have for killing the deceased would be found in the fact of a sudden
quarrel between them during the hunt. That idea is wholly negatived by the fact that the chicken and the man
were shot at the same time, there having been only one shot fired.
Article 1 of the Penal Code says:
"Crimes or misdemeanors are voluntary acts and omissions punished by law.
"Acts and omissions punished by law are always presumed to be voluntary unless the contrary shall appear."
Article 8, subdivision 8, reads as follows:
"He who, while performing a legal act with due care, causes some injury by mere accident without liability or
intention of causing it."
The American doctrine is substantially the same. It is uniformly held that if life is taken by misfortune or
accident while in the performance of a lawful act executed with due care and without intention of doing harm,
there is no criminal liability. (Tidwell vs. State, 70 Ala., 33; State vs. Benham, 23 Ia., 154, 92 Am. Dec., 417;
Bertrong vs. State, 2 Tex. Ap., 160; Williamson vs. States, 2 Ohio C. C., 292; U. S. vs. Meagher, 37 Fed. Rep.,
875; U. S. vs. Castro, Fed. Cas., 14752; State vs. Legg, 3 L. R. A., N. S., 1152.)
In this case there is absolutely no evidence of negligence upon the part of the accused. Neither is there any
question that he was engaged in the commission of a lawful act when the accident occurred. Neither is there any
evidence of the intention of the accused to cause the death of the deceased. The only thing in the case at all
suspicious upon the part of the defendant are his concealment and denial.
In the case of the State vs. Legg, above referred to, it is said (p. 1165):
"Where accidental killing is relied upon as a defense, the accused is not required to prove such a defense by a
preponderance of the evidence, because there is a denial of intentional killing, and the burden is upon the State
to show that it was intentional, and if, from a consideration of all the evidence, both that for the State and the
prisoner, there is a reasonable doubt as to whether or not the killing was accidental or intentional, the jury
should acquit. . . But where accidental killing is relied upon, the prisoner admits the killing but denies that it
was intentional. Therefore, the State must show that it was intentional, and it is clearly error to instruct the jury
that the defendant must show that it was an accident by a preponderance of the testimony, and instruction B in
the Cross case was properly held to be erroneous."
In 3 L. R. A., N. S., page 1163, it is said:

Section 57 of the Code of Criminal Procedure is as follows:
"A defendant in a criminal action shall be presumed to be innocent until the contrary is proved, and in case of a
reasonable doubt that his guilt is satisfactorily shown he shall be entitled to an acquittal."
"Evidence of misadventure gives rise to an important issue in a prosecution for homicide, which must be
submitted to the jury. And since a plea of misadventure is a denial of criminal intent (or its equivalent) which
37
constitute an essential element in criminal homicide, to warrant a conviction it must be negatived by the
prosecution beyond a reasonable doubt."
In support of such contention the author cites a number of cases.
We are of the opinion that the evidence is insufficient to support the judgment of conviction.
The judgment of conviction is, therefore, reversed, the defendant acquitted, and his discharge from custody
ordered, costs de oficio. So ordered.
Arellano, C. J., Torres, Mapa, and Johnson, JJ., concur.

||| (US v. Tanedo, G.R. No. 5418, [February 12, 1910], 15 PHIL 196-202)
CALLEJO, SR., J p:
For automatic review is the Decision 1 of the Regional Trial Court of Quezon City, Branch 95, convicting
appellant PO3 Ferdinand Fallorina y Fernando of murder for the killing of eleven-year-old Vincent Jorojoro, Jr.
while the latter was flying his kite on top of a roof. The court a quo sentenced the appellant to suffer the death
penalty.
The accusatory portion of the Information charging the appellant with murder reads:
That on or about the 26th day of September 1998, in Quezon City, Philippines, the said accused, with intent to
kill, by means of treachery and taking advantage of superior strength, did then and there, wilfully, unlawfully
and feloniously attack, assault and employ personal violence upon the person of VINCENT JOROJORO, JR. y
MORADAS, a minor, eleven (11) years of age, by then and there, shooting him with a gun, hitting him on the
head, thereby inflicting upon him serious and mortal wound which was the direct and immediate cause of his
death, to the damage and prejudice of the heirs of the said offended party.
CONTRARY TO LAW. 2
EN BANC
Upon arraignment on October 20, 1998, the appellant, with the assistance of counsel, pleaded not guilty.
Thereafter, trial ensued.
[G.R. No. 137347. March 4, 2004.]

Case for the Prosecution 3
PEOPLE OF THE PHILIPPINES, appellee, vs. PO3 FERDINAND FALLORINA Y FERNANDO, appellant.
DECISION
Eleven-year-old Vincent Jorojoro, Jr. was the third child of Vicente and Felicisima Jorojoro. The family lived at
Sitio Militar, Barangay Bahay Toro, Project 8, Quezon City. Vincent, nicknamed "Hataw," was a grade three
38
pupil whose education was sponsored by the Spouses Petinato, an American couple, through an educational
foundation. 4
The appellant was an officer of the Philippine National Police detailed in the Traffic Management Group
(TMG) based in Camp Crame, Quezon City, but was on detached service with the Motorcycle Unit of the
Metropolitan Manila Development Authority (MMDA).
At about 2:30 p.m. of September 26, 1998, Vincent asked permission from his mother Felicisima if he could
play outside. She agreed. 5 Together with his playmate Whilcon "Buddha" Rodriguez, Vincent played with his
kite on top of the roof of an abandoned carinderia beside the road in Sitio Militar, Barangay Bahay Toro. Beside
this carinderia was a basketball court, where fourteen-year-old Ricardo Salvo and his three friends, nicknamed
L.A., Nono and Puti, were playing backan, a game of basketball.
Ricardo heard the familiar sound of a motorcycle coming from the main road across the basketball court. He
was nonplussed when he looked at the person driving the motorcycle and recognized the appellant. Ricardo
knew that the appellant abhorred children playing on the roof of the carinderia and berated them for it. His
friend Ong-ong had previously been scolded by the appellant for playing on the roof.
Ricardo called on Vincent and Whilcon to come down from the roof. When the appellant saw Vincent and
Whilcon, the former stopped his motorcycle and shouted at them, "Putang inang mga batang ito, hindi kayo
magsibaba d'yan!" After hearing the shouts of the appellant, Whilcon immediately jumped down from the roof.
6 Vincent, meanwhile, was lying on his stomach on the roof flying his kite. When he heard the appellant's
shouts, Vincent stood up and looked at the latter. Vincent turned his back, ready to get down from the roof.
Suddenly, the appellant pointed his .45 caliber pistol 7 towards the direction of Vincent and fired a shot. Vincent
was hit on the left parietal area. He fell from the roof, lying prostrate near the canal beside the abandoned
carinderia and the basketball court. 8
Meantime, word reached Vincent's parents that their son was shot and brought to the hospital. They rushed to
the hospital, only to see their son's already lifeless body. The appellant was nowhere to be found.
Dr. Ravell Ronald R. Baluyot of the Medico-Legal Division of the National Bureau of Investigation (NBI)
conducted an autopsy where he made the following findings:
Cyanosis, lips and nailbeds.
Abrasion, 7.0 x 2.0 cms., right arm, middle third, postero-lateral aspect.
Contused-abrasion, 14.5 x 2.5 cms., postero-lateral chest wall, right side.
Gunshot Wound, Entrance, 3.0 x 0.8 cms., roughly ovaloid, with irregular edges, abrasion collar widest posteroinferiorly, located at the head, left parietal area, 9.0 cms. above and 8.0 cms. behind the left external auditory
meatus, directed forward upward and from left to right, involving the scalp, fracturing the left parietal bone
(punched-in), lacerating the left and right cerebral hemispheres of the brain, fracturing the right parietal bone
(punched-out), lacerating the scalp, making an Exit wound, 3.3 x 1.0 cms., stellate with everted and irregular
edges, 12.0 cms. above and 2.0 cms. in front of the right external auditory meatus.
Intracranial hemorrhage, subdural and subarachnoid, extensive, bilateral.
Scalp hematoma, fronto-parietal areas, bilateral.

Whilcon rushed to help Vincent up but was shocked when he saw blood on the latter's head. Whilcon retreated
and left his friend. 9 The appellant approached Vincent and carried the latter's hapless body in a waiting tricycle
and brought him to the Quezon City General Hospital. Vincent was pronounced dead on arrival.
Visceral organs, congested.
39
Stomach, one-fourth (1/4) filled with partially digested food particles.
CAUSE OF DEATH: GUNSHOT WOUND, HEAD. 10
Dr. Baluyot testified that the victim died from a single gunshot wound in the head. The bullet entered the left
upper back portion of the head (above the level of the left ear) 11 and exited to the right side. 12 Dr. Baluyot
signed Vincent's certificate of death. 13
At about 3:00 p.m., SPO2 Felix Pajarillo and Police Inspector Abelardo P. Aquino proceeded to the scene of the
shooting but failed to find the victim and the appellant. They proceeded to the Quezon City General Hospital
where they heard that the victim had died. They returned to the crime scene and recovered an empty shell from
a .45 caliber gun. 14
On September 28, 1998, Major Isidro Suyo, the Chief of the MMDA Motorcycle Unit to which the appellant
was assigned on detached service, reported to the Sangandaan Police Station that the appellant had not reported
for duty. 15 At 2:10 p.m. of September 29, 1998, Police Senior Superintendent Alfonso Nalangan, the Regional
Director of the PNP-TMG, NCR, surrendered the appellant to the Sangandaan Police Station together with his .
45 caliber pistol bearing Serial No. AOC-38701. 16
Meantime, upon the urging of Vicente Jorojoro, Ricardo was brought to the Department of Justice where he was
enrolled under its Witness Protection Program. He gave his sworn statement to NBI Special Agent Roberto
Divinagracia on September 29, 1998. 17 On the same date, P/Insp. Abelardo Aquino wrote the Chief of the PNP
Crime Laboratory Examination Unit requesting for the ballistic examination of the .45 caliber pistol with Serial
No. AOC-38701 and the empty shell of a .45 caliber gun found at the scene of the shooting. 18 Before noon on
September 30, 1998, Divinagracia arrived at the station and turned over two witnesses, Raymond Castro and
Ricardo Salvo. He also turned over the witnesses' sworn statements. 19 On October 2, 1998, on orders of the
police station commander, 20 Pajarillo took pictures of the crime scene, including the carinderia and the roof
with a bullet hole as part of the office filing. 21 He did not inform the prosecution that he took such pictures,
nor did he furnish it with copies thereof. However, the appellants counsel learned of the existence of the said
pictures.
On October 5, 1998, P/Insp. Mario Prado signed Firearms Identification Report No. FAIB-124-98 stating that:
CHcETA
FINDINGS:
Microscopic examination and comparison of the specimen marked FAP revealed the same individual
characteristics with cartridge cases fired from the above-mentioned firearm.
CONCLUSION:
The specimen marked FAP was fired from the above-mentioned caliber .45 Thompson Auto Ordinance pistol
with serial number AOC-38701. 22
Vincents family suffered mental anguish as a result of his death. As evidenced by receipts, they spent P49,174
for the funeral. 23
Case for the Appellant
The appellant denied shooting Vincent. He testified that at about 1:30 p.m. of September 26, 1998, Macario
Ortiz, a resident of Sitio San Jose, Quezon City, asked for police assistance; Macarios brother-in-law was drunk
and armed with a knife, and was creating trouble in their house. The appellants house was located along a
narrow alley (eskinita) perpendicular to the main road. It was 200 meters away from Macarios house. 24
Responding to the call, the appellant took his .45 service revolver, cocked it, put the safety lock in place and
40
tucked the gun at his right waistline. He brought out his motorcycle from the garage and slowly negotiated the
bumpy alley leading to the main road. Macario, who was waiting for him at the main road, called his attention
to his revolver which was about to fall off from his waist. The appellant got distracted and brought his
motorcycle to the right side of the road, near the abandoned carinderia where he stopped. As he stepped his right
foot on the ground to keep himself from falling, the appellant lost his balance and slipped to the right. At this
point, the revolver fell to the ground near his foot and suddenly went off. Bystanders shouted, Ano yon, ano
yon, mukhang may tinamaan. He picked up his gun and examined it. He put the safety latch back on and
tucked it at his right waistline. He then told Macario to wait for a while to check if somebody was really hit. He
went near the abandoned carinderia and saw Vincent sprawled to the ground. He picked up the bloodied child,
boarded him on a tricycle on queue and instructed its driver, Boy Candaje, to bring the boy to the hospital. 25
On board the tricycle were Jeffrey Dalansay and Milbert Doring.
The appellant rode his motorcycle and proceeded to his mother's house in Caloocan City but did not inform her
of the incident. He then called his superior officer, Major Isidro Suyo, at the Base 103, located at Roces Avenue,
Quezon City. The appellant informed Major Suyo that he met an accident; that his gun fell and fired; and, that
the bullet accidentally hit a child. He also told his superior that he might not be able to report for work that day
and the following day. He assured his superior that he would surrender later. He then went to Valenzuela City to
the house of his friend PO3 Angelito Lam, who was a motorcycle unit cop. The appellant stayed there for three
days. He also visited friends during that time.
On September 29, 1998, he went to the office of Major Suyo and surrendered his .45 caliber pistol. Major Suyo
accompanied and turned over the appellant to the commanding officer at Camp Crame, Quezon City. The
appellant was subjected to a neuro and drug test. He stated that the results of the drug test were negative. The
appellant was then referred to the Sangandaan Police Station for investigation. 26 The pictures 27 of the crime
scene were given to him by Barangay Tanod Johnny Yaket, shown in one of the pictures pointing to a bullet
hole. The appellants testimony was corroborated in pari materia by Macario Ortiz.
Leonel Angelo Balaoro, Vincent's thirteen-year-old playmate, testified that at 1:30 p.m. of September 26, 1998,
he was playing basketball at Barangay Bahay Toro, at the basketball court along the road beside the chapel.
With him were Ricardo, Puti and Nono. Vincent was on the rooftop of the carinderia with Whilcon. While Puti
was shooting the ball, an explosion ensued. He and Ricardo ran beside the chapel near the basketball court. He
looked back towards the basketball court and saw the appellant, about 15 meters away from the canal, holding
the prostrate and bloodied Vincent. He did not see the appellant shoot Vincent. He did not report what he saw to
the police authorities. He was ordered by his father to testify for the appellant. He also testified that his mother
was related to Daniel, the appellant's brother.
On January 19, 1999, the trial court rendered judgment convicting the appellant of murder, qualified by
treachery and aggravated by abuse of public position. The trial court did not appreciate in favor of the appellant
the mitigating circumstance of voluntary surrender. The decretal portion of the decision reads:
WHEREFORE, judgment is hereby rendered finding the accused PO3 Ferdinand Fallorina y Fernando GUILTY
beyond reasonable doubt of the crime of Murder defined in and penalized by Article 248 of the Revised Penal
Code, as amended by Republic Act No. 7659, and in view of the presence of the aggravating circumstance of
taking advantage by the accused of his public position (par. 1, Art. 14, Revised Penal Code), is hereby sentenced
to suffer the penalty of DEATH.
The accused is hereby ordered to indemnify the heirs of the late Vincent Jorojoro, Jr. the amounts of
P49,174.00, as actual damages; P50,000.00, as moral damages; P25,000.00, as exemplary damages; and,
P50,000.00, as death indemnity.
The accused is to pay the costs.
The .45 caliber pistol, service firearm (Exh. R) of the accused, shall remain under the custody of the Court
and shall be disposed of in accordance with the existing rules and regulations upon the finality of this decision.
28
The appellant assigned the following errors for resolution:
41
1. THE COURT A QUO SERIOUSLY ERRED IN NOT GIVING DUE CREDENCE TO RELEVANT
PHYSICAL EVIDENCE, WHICH IF CONSIDERED COULD HAVE ALTERED THE CONCLUSIONS
ARRIVED AT BY THE COURT AND THE OUTCOME OF THE CASE.
2. THE COURT A QUO SERIOUSLY ERRED BY OVERSTEPPING THE LINE OF JUDGING AND
ADVOCACY, AND GOING INTO THE REALM OF SPECULATION, PATENTLY DEMONSTRATING
BIAS AND PARTIALITY.
3. THE COURT A QUO ERRED IN GIVING UNDUE CREDENCE TO THE TESTIMONY OF RICARDO
SALVO, ALLEGED PROSECUTION EYEWITNESS, WHOSE TESTIMONY IS WANTING IN
PROBABILITY, AS IT IS CONTRARY TO THE COMMON EXPERIENCE OF MANKIND.
4. THE COURT A QUO GRAVELY ERRED IN INEQUITABLY APPRECIATING EXCULPATORY AND

INCULPATORY FACTS AND CIRCUMSTANCES WHICH SHOULD HAVE BEEN CONSIDERED IN
FAVOR OF THE ACCUSED.
victim, and, instead, complements Dr. Baluyot's testimony that the gunshot wound came from somewhere
behind the victim, somewhere lower than the point of entrance. The appellant invokes P/Insp. Mario Prados
testimony that if a gun hits the ground in an oblique position, the gun will fire and the bullet will exit in the
same position as the gun, that is, also in an oblique position.
The Office of the Solicitor General, for its part, asserts that the contention of the appellant is based on
speculations and surmises, the factual basis for his conclusion not having been proven by competent and
credible evidence. There is no evidence on record that the hole shown in the pictures 32 was caused by a bullet
from a .45 caliber pistol. The appellant did not present Barangay Tanod Johnny Yaket, who was shown in the
pictures, to testify on the matter. The appellant failed to prove that any slug was found on the rooftop or under
the roof which came from the appellants .45 caliber pistol. According to the Solicitor General, the pictures
relied upon by the appellant cannot overcome the positive and straightforward testimony of the young
eyewitness Ricardo Salvo.
We agree with the Office of the Solicitor General. Whether or not the appellant is exempt from criminal liability
is a factual issue. The appellant was burdened to prove, with clear and convincing evidence, his affirmative
defense that the victims death was caused by his gun accidentally going off, the bullet hitting the victim
without his fault or intention of causing it; hence, is exempt from criminal liability under Article 12, paragraph 4
of the Revised Penal Code which reads
5. THE COURT A QUO ERRED IN FAILING TO APPRECIATE THE MITIGATING CIRCUMSTANCE OF

VOLUNTARY SURRENDER IN FAVOR OF THE ACCUSED.
The following are exempt from criminal liability:
6. THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE
OF TAKING ADVANTAGE OF HIS POSITION BY ACCUSED. 29
The appellant asserts that the trial court failed to appreciate in his favor the physical evidence, viz., the hole
found on the rooftop of the carinderia where Vincent was when he was shot. The appellant contends that the
picture 30 taken on October 2, 1998 by no less than SPO2 Felix Pajarillo, one of the principal witnesses of the
prosecution, and the pictures 31 showing Barangay Tanod Yaket pointing to a hole on the roof buttress the
defense of the appellant that the shooting was accidental. The appellant maintains that his service revolver fell
to the ground, hit a hard object, and as the barrel of the gun was pointed to an oblique direction, it fired, hitting
the victim who was on the rooftop. The bullet hit the back portion of the victim's head, before exiting and
hitting the rooftop. The appellant posits that the pictures belie Ricardo's testimony that he deliberately shot the
xxx xxx xxx
4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault
or intention of causing it.
The basis for the exemption is the complete absence of intent and negligence on the part of the accused. For the
accused to be guilty of a felony, it must be committed either with criminal intent or with fault or negligence. 33
42
The elements of this exempting circumstance are (1) a person is performing a lawful act; (2) with due care; (3)
he causes an injury to another by mere accident; and (4) without any fault or intention of causing it. 34 An
accident is an occurrence that "happens outside the sway of our will, and although it comes about through some
act of our will, lies beyond the bounds of humanly foreseeable consequences." If the consequences are plainly
foreseeable, it will be a case of negligence.
In Jarco Marketing Corporation v. Court of Appeals, 35 this Court held that an accident is a fortuitive
circumstance, event or happening; an event happening without any human agency, or if happening wholly or
partly through human agency, an event which under the circumstance is unusual or unexpected by the person to
whom it happens. Negligence, on the other hand, is the failure to observe, for the protection of the interest of
another person, that degree of care, precaution and vigilance which the circumstances justly demand without
which such other person suffers injury. Accident and negligence are intrinsically contradictory; one cannot exist
with the other. 36 In criminal negligence, the injury caused to another should be unintentional, it being simply
the incident of another act performed without malice. 37 The appellant must rely on the strength of his evidence
and not on the weakness of that of the prosecution because by admitting having caused the death of the victim,
he can no longer be acquitted.
Second. The appellant did not see what part of the gun hit the victim. 40 There is no evidence showing that the
gun hit a hard object when it fell to the ground, what part of the gun hit the ground and the position of the gun
when it fell from the appellant's waist.
Third. In answer to the clarificatory questions of the court, the appellant testified that the chamber of his pistol
was loaded with bullets and was cocked when he placed it on his right waistline. 41 He also testified that the
gun's safety lock was on. He was asked if the gun would fire if the hammer is moved backward with the safety
lock in place, and the appellant admitted that even if he pulled hard on the trigger, the gun would not fire:
Q Is this your service firearm?
A Yes, Your Honor.

In this case, the appellant failed to prove, with clear and convincing evidence, his defense.
Q So the chamber might have been loaded when you went out of the house?
First. The appellant appended to his counter-affidavit in the Office of the Quezon City Prosecutor the pictures
showing the hole on the roof of the carinderia 38 to prove that he shot the victim accidentally. However, when
the investigating prosecutor propounded clarificatory questions on the appellant relating to the pictures, the
latter refused to answer. This can be gleaned from the resolution of the investigating prosecutor, thus:
A Yes, Your Honor.
Q What about the hammer, how was the hammer at that time when you tucked the gun in your waistline?
Classificatory questions were propounded on the respondent but were refused to be answered. This certainly led
the undersigned to cast doubt on respondents allegations. The defenses set forth by the respondent are
evidentiary in character and best appreciated in a full-blown trial; and that the same is not sufficient to
overcome probable cause. 39
A The hammer was cocked like this.
COURT:
43
Q You did not place the safety lock before you went out of your house?
Can you not stipulate that the hammer is moved backwards near the safety grip.
A I safety (sic) it, sir.
ATTY. AND PROS. SINTAY:
Q So when you boarded the motorcycle, the gun was on a safety lock?
Admitted, Your Honor.
A Yes, Your Honor.
ATTY. PEREZ:
Q Will you please place the safety lock of that gun, point it upwards.
Yes, Your Honor.
(witness did as instructed)
COURT: (to the witness)
It is now on a safety locked (sic)?
Q You are a policeman, if there is a bullet inside the barrel of the gun and then the hammer is moved backwards
and therefore it is open, that means that if you pull the trigger, the bullet will fire because the hammer will move
forward and then hit the base of the bullet?
A Yes, Your Honor.
A Yes, Your Honor.
Q Pull the trigger if the hammer will move forward?
Q Therefore, the gun was cocked when you came out?
A Yes, Your Honor.
A It will not, Your Honor.
44
COURT: (to the parties)
A Yes, Your Honor.
Q Can you not admit that at this position, the accused pulled the trigger, the hammer did not move forward?
Q That even if I pushed the safety grip forward, like this.
PROS. SINTAY AND ATTY. PRINCIPE:
The Court gave the gun to the accused for him to demonstrate.
Admitted, Your Honor.
(to the witness)
You push it forward in order to push the hammer. Hard if you want but do not remove the safety lock.
Q And therefore at this position, even if I pull the trigger many times, a bullet will not come out from the
muzzle of the gun because the hammer is on a safety locked (sic)?
The witness tried to push the safety grip and it does not touch the hammer even if the hammer is cocked. 42
A Yes, Your Honor.
Q Even if I pushed it very hard, it will not fire the gun?
A Yes, Your Honor.
Q Alright, I will ask you again a question. If the hammer of the gun is like this and therefore it is open but it is
on a safety lock, there is space between the safety grip which is found below the hammer, there is a space, is it
not?
Fourth. The trial court was witness as the appellant's counsel himself proved that the defense proffered by the
appellant was incredible. This can be gleaned from the decision of the trial court:
3. More importantly, and which the Court considers it as providential, when the counsel of the accused was
holding the gun in a cocked position and the safety lock put in place, the gun accidentally dropped on the
cemented floor of the courtroom and the gun did not fire and neither was the safety lock moved to its unlock
position to cause the hammer of the gun to move forward. The safety lock of the gun remained in the same
position as it was when it dropped on the floor. 43
45
Fifth. After the shooting, the appellant refused to surrender himself and his service firearm. He hid from the
investigating police officers and concealed himself in the house of his friend SPO3 Angelito Lam in Valenzuela
City, and transferred from one house to another for three days to prevent his arrest:
A Yes, sir.
Q So did you surrender that afternoon of September 26, 1998?
Q Why instead of going home to your residence at Bahay Toro?
A No, Your Honor.
A Because I am worried, sir.
Q I thought you were surrendering to Major Suyo?
A I was but I was not able to surrender to Major Suyo, Your Honor.
Q So what did you do for three days in the house of PO3 Lam?
Q Why, you were already able to talk to Major Suyo?
A During daytime, I go to my friends, other friends and in the evening, I go back to the house of PO3 Lam, Your
Honor.
A Because at that time I was already confused and did not know what to do, Your Honor.
Q So if you were able to visit your friends on September 27 or 28, 1998 and then returned to the house of PO3
Lam in the evening, why did you not go to Major Suyo or to your 103 Base?
ATTY. PRINCIPE: (to the witness)

A Your Honor, during those days I am really calling Major Suyo.
Q What is your relation with PO3 Angelito Lam of Valenzuela?
Q Why did you not go to your office at Camp Crame, Quezon City?
A Just my co-motorcycle unit cop in the TMG, sir.
A At that time, I did not have money, Your Honor.
Q Did I hear you right that you slept at the residence of PO3 Lam for three days?
46
Q What is the connection of you having money to that of informing your officer that you will surrender?
Q You did not even talk to the Bgy. Officials in Bgy. Bahay Toro?
A What I know, Your Honor, is that if I do that I will already be detained and that I will have no money to
spend.
Q Mr. Witness, from the time of the incident up to Sept. 29, 1998, you did not even visit your family in
Barangay Bahay Toro?
A No, sir.
Q Did you send somebody to visit your family?
A No sir, because I already brought the child to the hospital. 44
The conduct of the appellant after the shooting belies his claim that the death of the victim was accidental and
that he was not negligent.
We agree with the encompassing disquisitions of the trial court in its decision on this matter:
The coup de grace against the claim of the accused, a policeman, that the victim was accidentally shot was his
failure to surrender himself and his gun immediately after the incident. As a police officer, it is hard to believe
that he would choose to flee and keep himself out of sight for about three (3) days if he indeed was not at fault.
It is beyond human comprehension that a policeman, who professes innocence would come out into the open
only three (3) days from the incident and claim that the victim was accidentally shot. Human behavior dictates,
especially when the accused is a policeman, that when one is innocent of some acts or when one is in the
performance of a lawful act but causes injury to another without fault or negligence, he would, at the first
moment, surrender to the authorities and give an account of the accident. His failure to do so would invite
suspicion and whatever account or statement he would give later on becomes doubtful.
A No, Your Honor.
Q Did you cause to blotter the shooting incident of Vincent?
A I was not able to do that, sir.
For the accused, therefore, to claim that Vincent was accidentally shot is odious, if not, an insult to human
intelligence; it is incredible and unbelievable, and more of a fantasy than a reality. It was a deliberate and
intentional act, contrary to accuseds claim, that it happened outside the sway of his will. 45
It is a well-entrenched rule that findings of facts of the trial court, its calibration of the testimonies of the
witnesses, its assessment of the credibility of the said witnesses and the probative weight of their testimonies are
accorded high respect, if not conclusive effect by the appellate court, as the trial judge was in a better position to
observe the demeanor and conduct of the witnesses as they testified. 46 We have carefully reviewed the records
of the case and found no reason to deviate from the findings of the trial court.
47
A: He was at the roof of the karinderia, sir.

The testimony of prosecution witness Ricardo Salvo deserves credence. He testified in a positive and
straightforward manner, which testimony had the earmarks of truth and sincerity. Even as he was subjected to a
grueling cross-examination by the appellants counsel, he never wavered in his testimony. He positively
identified the appellant as the assailant and narrated in detail how the latter deliberately aimed his gun and shot
the victim. The relevant portions of his testimony are quoted:
Q: Was there any companion of Vincent?
A: Yes, sir.
Q: While playing basketball with Nono, LA and Puti, do you remember of any unusual incident which took
place?
Q: What was the position of Vincent at that time that you saw him and Fallorina shot him?
A: Yes, sir.
A: "Nakatalikod po siya."
Q: What was that unusual incident?
xxx xxx xxx
A: When Vincent was shot, sir.
Q: You included in this Exhibit O your drawing the figure of a certain Jeffrey and you and his tricycle? Why did
you include this drawing?
Q: Who shot Vincent?

A: Because it was in the tricycle where Vincent was boarded to and brought to the hospital.
A: Ferdinand Fallorina, sir.
(Witness referring to Exhibit O-11)
xxx xxx xxx
Q: And who was the driver of that tricycle?
Q: And in what place that Vincent was shot by Fallorina?
A: It was Jeffrey who drove the tricycle, sir.
48
Q: You also drew here a motorcycle already marked as Exhibit O-7. Why did you include the motorcycle?
xxx xxx xxx
A: Because Fallorina was riding on that motorcycle at that time.
Q: At that time that Fallorina shot the victim, was Buddha still there?
Q: So when Ferdinand Fallorina shot the boy, the motorcycle was moving?
A: He ran, sir. He jumped in this place, sir.
A: It was stationary, your Honor.
(Witness is pointing to a place near the canal already marked as Exhibit O-14).
Q: Did you see where he came from, I am referring to Fallorina before you saw him shot the boy?
Q: Now from the witness stand that you are now seated. Can you tell the Court how far where (sic) you from
Fallorina at that time of the shooting?
COURT:
xxx xxx xxx
Can the prosecution and the accused stipulate that the distance pointed to by the witness is more or less 7
meters.
A: He came from their house, Your Honor.
xxx xxx xxx
Q: What was his attire, I am referring to Ferdinand Fallorina?
A: He was wearing white shirt and blue pants, Your Honor.
Q: How about the distance of Fallorina from Vincent, can you tell that?
49
A: Only one, sir.
Can you point a distance between Fallorina and the boy at that time the body (sic) was shot?
Q: Do you recognize the gun used by Fallorina?
COURT:
A: Yes, sir.
10 meters more or less?
Q: What was that gun?
xxx xxx xxx
A: .45 cal., sir.
Q: How long have you known Ferdinand Fallorina before the incident?
Q: Are you familiar with .45 cal.?
A: More or less two years, sir.
A: No, sir.
Q: Why do you know him?
Q: Why do you know that it was .45 cal.?
A: I usually see him in that place at Sitio Militar, especially on Sundays, sir.
A: Because that kind of gun, I usually see that in the movies, sir.
xxx xxx xxx
Q: Ricardo, you said that you have known Fallorina for two (2) years and you saw him shot Vincent on
September 26, 1998 at around 2:30 in the afternoon. Please look around the courtroom now and point at the
person of PO3 Ferdinand Fallorina?
Q: How many shots did you hear?
50
CT. INTERPRETER:
A: He was still on board his motorcycle and then he went at the back of the karinderia where Vincent fell, Your
Honor.
Witness is pointing to a male person the one seated at the back of the lady and wearing a yellow shirt and
maong pants and when asked of his name, he stated his name as Ferdinand Fallorina.
Q: And after he went at the back of the karinderia and looked at Vincent Jorojoro, what did he do?
A: He carried Vincent, Your Honor.
Q: Can you tell to the Court whether you heard utterances at that time that he shot the victim?
Q: And after carrying Vincent, what did he do?
xxx xxx xxx
A: He boarded Vincent in the tricycle.
A: Yes, sir.
Q: What about the gun, what did he do with the gun?
Q: What was that?
A: I do not know anymore. 47
A: "Putang inang mga batang ito, hindi kayo magsisibaba diyan!"
The appellant even uttered invectives at the victim and Whilcon before he shot the victim. In fine, his act was
deliberate and intentional.
xxx xxx xxx
Q: After Fallorina shot Vincent Jorojoro, you saw Vincent Jorojoro falling from the roof, what about Fallorina,
what did he do?
It bears stressing that of the eyewitnesses listed in the Information as witnesses for the prosecution, only
Ricardo Salvo remained steadfast after he was brought under the Witness Protection Program of the Department
of Justice. He explained that the reason why he testified for the prosecution, despite the fact that the appellant
was a policeman, was because he pitied the victim's mother who was always crying, 48 unable to obtain justice
for her son. We find no ill motive why Ricardo would falsely testify against the appellant. It was only his purest
intention of ferreting out the truth in this incident and that justice be done to the victim. 49 Hence, the testimony
of Ricardo is entitled to full faith and credence.
51
The Crime Committed by the Appellant
We agree with the trial court that the appellant committed murder under Article 248 of the Revised Penal Code
qualified by treachery. As the trial court correctly pointed out, Vincent was shot intentionally while his back was
turned against the appellant. The little boy was merely flying his kite and was ready to get down from the roof
when the appellant fired a shot directed at him. The essence of treachery is the sudden and unexpected attack on
an unsuspecting victim without the slightest provocation on his part. 50 Nonetheless, Vincent was an elevenyear-old boy. He could not possibly put up a defense against the appellant, a police officer who was armed with
a gun. It is not so much as to put emphasis on the age of the victim, rather it is more of a description of the
young victim's state of helplessness. 51 Minor children, who by reason of their tender years, cannot be expected
to put up a defense. When an adult person illegally attacks a child, treachery exists. 52 The abuse of superior
strength as alleged in the Information is already absorbed by treachery and need not be considered as a separate
aggravating circumstance. 53
made it difficult for his brother-officers to arrest him and terminate their investigation. It was only after the
lapse of three days that the appellant gave himself up and surrendered his service firearm.
Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpetua to death. Since there
is no modifying circumstance in the commission of the crime, the appellant should be sentenced to suffer the
penalty of reclusion perpetua, conformably to Article 63 of the Revised Penal Code.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Quezon City, Branch 95, is
AFFIRMED WITH MODIFICATION. The appellant PO3 Ferdinand Fallorina y Fernando is found guilty
beyond reasonable doubt of the crime of murder under Article 248 of the Revised Penal Code and, there being
no modifying circumstances in the commission of the crime, is hereby sentenced to suffer the penalty of
reclusion perpetua. He is also ordered to pay the heirs of the victim Vincent Jorojoro, Jr. the amount of P49,174
as actual damages; P50,000 as moral damages; P50,000 as civil indemnity; and P25,000 as exemplary damages.
aHcDEC
We, however, note that the trial court appreciated the aggravating circumstance of abuse of public position in
this case. We reverse the trial court on this score.
SO ORDERED.
There is no dispute that the appellant is a policeman and that he used his service firearm, the .45 caliber pistol,
in shooting the victim. However, there is no evidence on record that the appellant took advantage of his position
as a policeman when he shot the victim. 54 The shooting occurred only when the appellant saw the victim on
the rooftop playing with his kite. The trial court erred in appreciating abuse of public position against the
appellant.
Davide, Jr., C.J., Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio Morales, Azcuna and Tinga, JJ., concur.
Puno, J., is on leave.

The trial court did not, however, err in ruling that the appellant is not entitled to the mitigating circumstance of
voluntary surrender. Surrender is said to be voluntary when it is done by the accused spontaneously and made in
such a manner that it shows the intent of the accused to surrender unconditionally to the authorities, either
because he acknowledges his guilt or he wishes to save them the trouble and expense necessarily incurred in his
search and capture. 55
Panganiban, J., is on official leave.

||| (People v. Fallorina y Fernando, G.R. No. 137347, [March 4, 2004], 468 PHIL 816-841)
In this case, the appellant deliberately evaded arrest, hid in the house of PO3 Lam in Valenzuela City, and even
moved from one house to another for three days. The appellant was a policeman who swore to obey the law. He
52
EN BANC
The appellant was tried in the Court of First Instance of Tayabas upon the following information:
[G.R. No. 29396. November 9, 1928.]
"That on or about January 15, 1928, in the municipality of Pagbilao, Province of Tayabas, Philippine Islands,
and within the jurisdiction of this court, the above-named accused, with the intent to kill her husband Benito de
la Cruz, with whom she was united in lawful marriage, with treachery and by means of an umbrella, did
voluntarily, unlawfully, and feloniously assault and attack her said husband Benito de la Cruz, inflicting a
mortal wound in the upper left eyelid, as a result of which said Benito de la Cruz died five (5) days thereafter. In
violation of article 402 of the Penal Code."
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. PRAXEDES AYAYA, defendantappellant.
G. N. Trinidad for appellant.
Attorney-General Jaranilla for appellee.
SYLLABUS
1. CRIMINAL LAW; PARRICIDE; INJURY CAUSED BY MERE ACCIDENT WITHOUT FAULT OR

INTENTION OF CAUSING IT. A married woman who, to free her son from the imminent danger of being
strangled by the door which her husband was attempting to shut, thrust her umbrella in the opening of said door
and jabbed her husband with the point thereof, thereby causing an injury to his left eye, which is supposed to
have been the cause of his death, is not criminally liable, pursuant to article 8 of the Penal Code, because the act
performed by her does not involve any criminal liability. (Decision of the Supreme Court of Spain of November
30, 1888.)
DECISION
VILLAMOR, J p:
It appears from the record that at about 1 o'clock in the morning of January 16, 1928, Jose Fajardo, the chief of
police of Pagbilao, Tayabas, was informed by a policeman that one Benito de la Cruz was drunk, wounded, and
vomiting in his house in said municipality. Said chief of police went to the place and found Benito, the
deceased, lying in bed with a wound on his left eyelid, and unconscious, for he did not answer the questions put
to him. When his wife, the defendant Praxedes Ayaya, was questioned as to the cause of that wound, she replied
that it was due to the fact that she herself had jabbed her husband with an umbrella. Health officer Victoriano
Litonjua was then called, and upon examining Benito, found he had a wound on the left upper eyelid which was
bleeding; that his pupils were dilated and, from the odor of his breath and from his vomiting, it appeared that
Benito was drunk. In view of the wounded man's condition he was later taken to the provincial hospital of
Tayabas, where he died four days after the incident.
Health officer Litonjua and Dr. G. Santos Cuyugan, the director of the provincial hospital of Tayabas, who
treated the wounded man, expressed different opinions as to the cause of the death of Benito de la Cruz. Health
officer Litonjua believes that the deceased's cerebral hemorrhage was due to his alcoholic excesses, whereas
Doctor Cuyugan, who performed the autopsy, declared that the wound was caused by some blunt instrument
and that his death was caused by the cerebral hemorrhage produced by the wound he had received in the
forehead, and that health officer Litonjua's statement as to said hemorrhage being due to the alcohol is
erroneous. The trial court found the defendant guilty of the crime alleged in the information, and taking into
account that the defendant did not intend to inflict so grave an injury as she did, and that there had been
provocation on the part of the offended party, sentenced her to fourteen years, eight months and one day
reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased the sum of P500 by way
of indemnity, plus the costs of the action.
53
The defendant appealed from this judgment, and her attorney, in support of the petition that the judgment
appealed from be reversed and the appellant acquitted with costs de oficio, assigns the following errors: (1) The
trial court erred in holding that the deceased's wound on the left upper eyelid was caused by the appellant; (2)
supposing, without admitting, that said wound was really caused by the herein appellant, the lower court erred
in concluding that said wound was the immediate cause of the death of the deceased and consequently, in
convicting the appellant; and (3) the lower court erred in not acquitting the appellant. at least, for reasonable
doubt.
The evidence presented by the prosecution to prove that the crime charged, consists of the following: Exhibit A,
which is the sworn statement filed by the accused with the justice of the peace of Pagbilao; Exhibit B, which is
the umbrella used by the defendant and with which she jabbed the deceased; Exhibit C, which is the report of
the autopsy of Benito de la Cruz signed by Doctor Cuyugan; and Exhibit D, which is the death certificate.
In the defendant's sworn statement she states, among other things, that at about 8 o'clock at night on January 15,
1928, she, with her husband Benito de la Cruz, and her son Emilio, drank tuba in the store of one Felicidad
Losloso; that afterwards they went to a cinema; that while returning home and without any warning, her
husband, who was drunk, gave her a blow which she dodged; that then her husband went home, preceding her
and her son and when they arrived at the house they found the door closed; that she and her son pushed the door
and attempted to open it, but her husband, who was inside, prevented it; that then the door gave way somewhat
and her son Emilio succeeded in putting his head between the opening of the door and the wall and ;n order to
prevent the door from crushing him, she pushed it; that Benito then poked his head out of the opening of the
door and when she saw him, she jabbed him with the umbrella she carried; that she does not know where she
jabbed him although she thinks it was in the body; and that when she and her son finally succeeded in entering
the house, they found that Benito was already in bed with a wound in the forehead. The accused herself, in her
testimony in her own behalf, substantially repeated what she had declared before the justice of the peace of
Pagbilao, stating, however, that when the door was opened and her son put his head between the opening of the
door and the wall, in order to prevent the door from crushing her son's head, she jabbed her husband with her
umbrella with a downward motion, though she could not tell if she touched him or not. She stated, furthermore,
that she did not know how the wound in her husband's forehead was caused. This point of the defendant's
testimony has not been contradicted by any evidence to the contrary; rather it has been corroborated by her son
Emilio de la Cruz who also testified at the trial.
On the other hand, it appears from the testimony of the defendant and of her son that the husband and wife did
not quarrel in the street while returning home on the night in question, and, moreover, that during the marriage
they lived together in peace with no disagreements between them, either on or before the date of the incident.
In view of the fact that there is no eyewitness of the act herein prosecuted, with the exception of the defendant
and her son Emilio de la Cruz, we are compelled to accept the declaration of the defendant that she jabbed her
husband with her umbrella in order to prevent the door from closing and crushing her son's head which was
inserted between said door and the wall of the house. Said defendant, explaining what took place, says in part:
"When the door was ajar my son went in, and then my husband pushed it and as I saw that he was about to
crush my son's head, I jabbed my husband with the point of the umbrella downwards to prevent him from
crushing my son's head." We find nothing improbable in this statement and if we add to this the absence of any
reasonable motive to prompt said defendant to injure her husband, we are compelled to conclude that in
thrusting her umbrella in the opening of the door in question, she did so to free her son from the imminent
danger of having his head crushed or being strangled; and if she thus caused her husband's injury, it was by a
mere accident, without any fault or intention to cause it. This being so, we believe that she incurred no criminal
liability in accordance with article 8, No. 8, of the Penal Code, because, it being a licit act to free her son from
the grave danger threatening him, and the fact of having touched the left eye of her husband, who was behind
the door, with the end of her umbrella, does not make her criminally liable. (Decision of the Supreme Court of
Spain of November 30, 1888.)
Wherefore the judgment appealed from is reversed, and the appellant Praxedes Ayaya must be, as she hereby is,
acquitted, with costs de oficio. So ordered.
Avancea, C.J., Johnson, Street, Malcolm, Ostrand, Romualdez and Villa-Real, JJ., concur.
||| (People v. Ayaya, G.R. No. 29396, [November 9, 1928], 52 PHIL 354-359)
THIRD DIVISION
54
[G.R. No. 126171. March 11, 2004.]
PEOPLE OF THE PHILIPPINES, appellee, vs. FEDERICO GENITA, JR. y CULTURA, appellant.
DECISION
On December 17, 1991, at around 8:00 o'clock in the evening, while the victims Reynaldo Timbal and Jesus
Bascon were loading firewood in a truck in Barangay Bugsukan, Butuan City, appellant who was drunk and
armed with an M-14 rifle, asked Reynaldo for a Christmas gift. Reynaldo told him to just come back because
they were still loading firewood. Appellant left the place. Not long after, he returned and fired his gun at Jesus'
feet, hitting his left leg. He immediately jumped into the truck. Appellant then went near its bumper and fired at
the tire near the chassis. Then he changed the magazine of his gun and fired again at Jesus, this time, hitting his
right leg. Reynaldo ran away, his right hand covering his head. Appellant chased him and fired at him, hitting
his nape and right hand. After the commotion, the victims' co-workers who were able to take refuge from the
cascade of bullets returned to the scene and found the dead body of Reynaldo. Jesus was immediately brought
to the Butuan City General Hospital but died thereafter. 3
SANDOVAL-GUTIERREZ, J p:
Challenged in this appeal is the Decision 1 dated June 14, 1996 of the Regional Trial Court, Branch 4, Butuan
City in Criminal Case No. 4954 finding Federico Genita, Jr., appellant herein, guilty beyond reasonable doubt
of two counts of murder and sentencing him to suffer reclusion perpetua for each count.
Appellant was charged in an Information which reads:
"That on or about the evening of December 17, 1991 in Barangay Bugsukan, Butuan City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, and with treachery
and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shot with
the use of a high powered firearm one Jesus Bascon thereby hitting him on both legs, and Reynaldo Timbal who
was hit on his head which caused their subsequent death." 2
On arraignment, petitioner pleaded "not guilty." Forthwith, trial ensued. The prosecution presented Danilo
Timbal, Vicente Olaco and Dr. Elsie Caballero as its witnesses. Appellant took the witness stand for the defense.
The version of the prosecution is as follows:
Dr. Elsie Caballero, City Health Officer of Butuan City, who conducted the post mortem examination of the
body of Reynaldo, found that he died of "shock, gunshot wound in the neck with avulsion of brain tissues." 4
On the other hand, the Death Certificate 5 issued by Dr. Raul Monton, Medical Specialist II of the Butuan City
General Hospital, attributed Jesus death to "compound fractures, (R) & (L) Legs, and Hypovolemic Shock."
Appellant, relying on the exempting circumstance of accident as his defense, presented a different version. He
testified that he was a member of the Civilian Armed Forces Geographical Unit (CAFGU) stationed at
Bugsukan, Butuan City, hence, he was officially issued an M-14 rifle. On the evening of December 17, 1991,
while on his way to his camp, he saw a truck parked at the right side of the road with its rear lights on. While
approaching the vehicle, somebody grasped his neck. As a consequence, he accidentally pulled the trigger of the
M-14 rifle slung on his shoulder. The weapon automatically fired. At this instance, his assailant set him free.
Immediately he rushed to the camp and reported the incident to Sgt. Montealto who placed the camp on alert.
Appellant stayed in the camp during the entire evening. The following morning, he learned that two persons
were killed. 6
On June 14, 1996, the trial court rendered the assailed Decision, the dispositive portion of which reads:
'WHEREFORE, finding accused FEDERICO GENITA, JR. y CULTURA guilty beyond reasonable doubt for
the death of the two (2) victims:
55
(1) He is hereby sentenced to reclusion perpetua with its accessory penalties for the death of Reynaldo Timbal
which penalty entails imprisonment for at least thirty (30) years.
(2) For the death of Jesus Bascon, the said accused, FEDERICO GENITA, JR. y CULTURA is also sentenced to
another penalty of reclusion perpetua with its accessory penalties which penalty entails another imprisonment of
at least thirty (30) years.
Both sentences shall be served by the accused successively at the Davao Prison and Penal Farm at Panabo,
Davao del Norte.
Accused is also ordered to indemnify the Heirs of Reynaldo Timbal the sum of Fifty Thousand (P50,000.00)
pesos and another Fifty Thousand (P50,000.00) pesos for the Heirs of Jesus Bascon plus costs of suit.
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF

TREACHERY DESPITE FAILURE OF THE PROSECUTION TO PROVE ITS ATTENDANCE ON THE
ASSUMPTION THAT THE KILLING OF THE VICTIM WAS NOT ACCIDENTAL." 8
Appellant contends that he was performing a lawful act with due care when the victims were killed. He was
then on his way to the CAFGU station to report for duty. He had no intention to kill the victims. He accidentally
pulled the trigger of the rifle and the bullets hit the victims. Thus, he should have been exempted from any
criminal liability. Even assuming that he is liable for the death of the victims, he contends that the trial court
erred in appreciating the qualifying circumstance of treachery. caSEAH
The Solicitor General maintains that considering the number of gunshot wounds inflicted on the victims, the
shooting could not have been an accident. Nonetheless, the Solicitor General agrees with appellant that the
qualifying circumstance of treachery was not sufficiently proven, stressing that the latter was drunk when he
approached Reynaldo. This should have put the victims on guard as it was established during the hearing that
appellant tends to be cantankerous and out of control when he is drunk. Also, it was not proven that he
consciously adopted the means of executing the crime.
IT IS SO ORDERED." 7
Hence, this appeal anchored on the following assignments of error:
"I
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE
EXEMPTING CIRCUMSTANCE OF ACCIDENT INTERPOSED BY THE ACCUSED-APPELLANT
"II
Appellant's version that he "accidentally shot" the two victims is incredible. Accident is an exempting
circumstance under Article 12 of the Revised Penal Code. It must be stressed that in raising this defense,
appellant has the burden of the evidence and it was incumbent upon him to establish that he was exempt from
criminal liability. 9 He must show with clear and convincing proofs that: 1) he was performing a lawful act with
due care, 2) the injury caused was by a mere accident, and 3) he had no fault or intention of causing the injury.
Considering appellant's evidence, it is clear that the requisites of accident as an exempting circumstance were
not proven. First, appellant's manner of carrying his M-14 rifle negates his claim of "due care" in the
performance of an act. Knowing that his rifle was automatic, he should have seen to it that its safety lock was
intact. Worse, he admitted that his finger was constantly on the trigger. With the safety lock released and his
finger on the trigger, how can we conclude that he acted with due care? We cannot accept his version that he
was just following his trainers instruction to release the safety lock while in a critical area. 10 For one, he never
presented his trainer to corroborate his statement; and for another, he was not in a critical area. Second, the
number of wounds sustained by the victims shows that the shooting was not merely accidental. Both victims
sustained more than one wound. While it could have been possible that the first wound sustained by both
victims was by accident, however, the subsequent wounds sustained by them in different parts of their bodies
could not have been similarly inflicted. And third, appellant manifested an unmistakable intent to kill the
victims when he reloaded his rifle after his first unsuccessful attempt to kill them. Jesus had already sought
56
refuge by jumping into the truck when another bullet hit his right leg. Reynaldo was already running away when
he was shot on his nape and right hand. That appellant chased the victims and shot them several times clearly
show that he had the intent to kill them. 11 His defense must necessarily fail.
Pitted against the clear, positive and impressive account narrated by the prosecution witnesses, the claim of
accidental shooting is exposed of what it is a farce, an invention of the imagination."
Moreover, if it were true that someone attacked appellant, thus causing him to accidentally pull the trigger of his
rifle, then his natural reaction should have been to defend himself. Instead, he rushed towards the camp.
Furthermore, he did not present any evidence to support his allegation that the CAFGU was placed on alert. And
not a single witness corroborated his version of accidental shooting, an indication that it is fabricated.
The trial court found the testimonies of the prosecution witnesses credible. We stamp our agreement to such
finding. Woven in the fabric of our jurisprudence is that the findings of the trial court are accorded not only the
highest respect, but also finality, unless some weighty circumstance has been ignored or misunderstood but
which could alter the result and could affect the judgment to be rendered. Given the direct opportunity to
observe the witness on the stand, the trial judge was in a vantage position to assess the demeanor of the
witnesses and determine if they were telling the truth or not. 12 Here, the trial court keenly observed:
"The defense counsel attempted to force into the mouth of the accused the answer counsel wanted accused to
respond to his questions. During the direct examination, for instance, defense counsel propounded this question:
'Atty. Dagani:
Q It appears from your testimony that while you were walking from your house to the camp, you seemed to be
prepared for fight, do you agree with me on that?'
It is obvious that this leading question was propounded to explain why the finger of the accused was on the
trigger of the weapon. The attempt of the defense counsel to elicit the desired answer was apparently to support
the theory that the accused was on alert that evening with the safety lock of his rifle released.
Furthermore, the trial court found that the prosecution witnesses were not motivated by any ill desire to
implicate appellant with a serious charge. The absence of motive on their part lends more credence to their
testimonies.
However, we find that the trial court erred in finding that treachery exists in the commission of the crime. There
is treachery when the offender commits any of the crimes against persons employing means, methods or forms
in the execution thereof, which tend directly and especially to insure its execution, without risk to himself
arising from the defense which the offended party might make. Thus, for the crime to be qualified by treachery
the following elements must be proved: (1) the means of execution employed gave the person attacked no
opportunity to defend himself or to retaliate; and (2) the means of execution were deliberately or consciously
adopted. 13 Treachery cannot be presumed but must be proved by clear and convincing evidence or as
conclusively as the killing itself. Hence, where no particulars are shown as to the manner by which the
aggression was commenced or how the act which resulted in the death of the victim began and developed,
treachery can in no way be established from mere suppositions, drawn solely from circumstances prior to the
killing. 14 In the instant case, it appears from the record that the attack was not so swift so as to render the
victims off-guarded. Contrary to the finding of the trial court, appellant could not have managed to "stealthily
approach" and suddenly fire at the victims. Therefore the means in executing the crime cannot be considered
deliberate. Besides, Jesus had the chance to jump into the truck after he was hit at the left leg. Reynaldo, on the
other hand, was able to run away and take cover, though unsuccessful. As a matter of fact, the other laborers
who were with the victims managed to evade the volley of bullets. It cannot be said, therefore, that the victims
were unprepared to put up a defense.
Since the aggravating circumstance of treachery was not proven, appellant can only be convicted of two
separate crimes of homicide punishable under Article 249 of the Revised Penal Code. The Solicitor General
maintains that he should be convicted of double homicide, a complex crime punishable under Article 48 of the
Revised Penal Code which provides:
57
ARTICLE 48. Penalty for complex crimes. When a single act constituted two or more grave or less grave
felonies or when an offense is a necessary means for committing the other, the penalty for the most serious
crime shall be imposed, the same to be applied in its maximum period.
WHEREFORE, the Decision of the trial court is MODIFIED in the sense that appellant is hereby found guilty
beyond reasonable doubt of two crimes of homicide. He is sentenced to suffer (10) years and one (1) day of
prision mayor maximum, as minimum, to seventeen (17) years and four (4) months of reclusion temporal
medium, as maximum, for each crime of homicide.
The instant case does not fall under the above provision. The finding of the trial court tells why, thus:
The appellant is ordered to pay the heirs of each of the victims, Reynaldo Timbal and Jesus Bascon, the
amounts of P50,000.00 as civil indemnity for their deaths and P25,000.00 as temperate damages.
"Let it be noted, though, that herein accused killed both deceased one after the other. As described by witness
Danilo Timbal accused Genita first fired at Jesus Bascon who was in the truck. He then shot the front tire of the
truck. After reloading, he went back to Bascon and shot him again. During this time Reynaldo Timbal was at the
back of the truck. When Reynaldo Timbal ran away, accused fired at him hitting the deceased on the head and
wounding the deceaseds right hand which covered his head while he was running. For each death, therefore,
accused shall be held criminally liable."
With costs de oficio. IaCHTS
SO ORDERED.
||| (People v. Genita, Jr., y Cultura, G.R. No. 126171, [March 11, 2004], 469 PHIL 334-345)
Appellant, therefore, must be convicted of two separate crimes of homicide.
The penalty for homicide is reclusion temporal. In view of the absence of the qualifying circumstance of
treachery, appellant can only be convicted of homicide punishable by reclusion temporal. 15 There being neither
mitigating nor aggravating circumstance that attended the commission of the crime, the imposable penalty is the
medium period of reclusion temporal. 16 Applying the Indeterminate Sentence Law, appellant should be meted
out the indeterminate sentence of ten (10) years and one (1) day of prision mayor maximum, as minimum, to
seventeen (17) years and four (4) months of reclusion temporal medium, as maximum.
With regard to civil liability, no proof was presented as to the actual or moral damages. The trial court, however,
ordered appellant to indemnify the heirs of each of the victims the amount of P50,000.00, which we affirm.
Unlike the award of actual damages, the award of civil indemnity need no proof other than the death of the
victim. 17 In addition, temperate damages may be recovered under Article 2224 of the Civil Code, as it cannot
be denied that the heirs suffered some pecuniary loss although the exact amount was not proved with certainty.
Hence, an award of P25,000.00 by way of temperate damages would be appropriate. 18 The heirs of Reynaldo
and Jesus are awarded P50,000.00 each as civil indemnity and P25,000.00 as temperate damages.
THIRD DIVISION
[G.R. No. 172695. June 29, 2007.]
PEOPLE OF THE PHILIPPINES, appellee, vs. ISAIAS CASTILLO y COMPLETO, appellant.
DECISION
YNARES-SANTIAGO, J p:
58
In an Information 1 dated January 19, 1994, appellant Isaias Castillo y Completo was charged with the crime
of parricide, committed as follows:
In the same letters, the accused raised as an issue his lack of intent to do the fatal harm to his wife. This is the
same issue to be resolved by this Court. Whether or not the fatal injury sustained by the victim was accidental.
That on or about November 5, 1993, in the Municipality of Cabuyao, Province of Laguna and within the
jurisdiction of this Honorable Court, accused Isaias Castillo y Completo, while conveniently armed with
illegally possessed sling and deadly arrow, with intent to kill his wife Consorcia Antiporta with whom he was
united in lawful wedlock did then and there wilfully, unlawfully and feloniously shot and hit his wife Consorcia
Antiporta with the aforesaid deadly arrow, hitting the latter on the right side of her neck causing the laceration
of the jugular vein which caused her instantaneous death.
xxx xxx xxx
CONTRARY TO LAW. 2
The case was docketed as Criminal Case No. 8590-B and raffled to Branch 24 of the Regional Trial Court of
Bian, Laguna.
Appellant entered a plea of not guilty when arraigned on April 15, 1994. Trial thereafter ensued.
The facts as found by the trial court are as follows:
There is no dispute that the victim, Consorcia Antiporta Castillo, died violently in the evening of November 5,
1993. The cause of her death was massive hemorrhage due to "laceration of the jugular vein of her neck".
According to Dr. Solita P. Plastina, Municipal Health Officer of Calamba, Laguna, who conducted the autopsy
on the victim's body, the fatal weapon could have been a "pointed instrument like a nail". There is no dispute
likewise that the accused shot with a dart from a rubber sling, his wife hitting her at the neck and causing her
instantaneous death. The letters written by the accused from his detention cell addressed to his mother-in-law, to
his father-in-law, and lastly, the victim's sister, speak so eloquently of someone who accepts the fault for the
early demise of the victim. Asking forgiveness from the close relatives of the victim is a clear admission of
authorship of the fatal act. CAHTIS
Guillermo Antiporta, father of the victim, narrated in Court that in the evening of November 5, 1993, between
9:00 o'clock to 10:00 o'clock, the accused came home drunk and was in an angry mood. The accused kicked the
door and table, and then threw the electric fan away. He was prevailed upon by Guillermo to take a rest. But the
accused did not heed the advice of Guillermo as he took instead his sling and arrow from the house ceiling
where he was keeping them. Dejectedly, Guillermo transferred to the adjacent house of her . . . daughter [inlaw] Yolanda. From there, Guillermo heard the victim crying and, afterwards, shouting at the accused.
Guillermo concernedly ordered Yolanda to see what was happening inside the house of Consorcia, and Yolanda
obeyed. On her way, Yolanda met the accused carrying the bloodied body of Consorcia. Guillermo, the accused,
and Yolanda brought Consorcia to the hospital but to no avail.
From all the circumstances gathered, the infliction of the fatal injury upon Consorcia was preceded by a quarrel
between her and the accused. This spat negated the accused's version that he was practicing the use of the
weapon when Consorcia was hit by the arrow, and lends credence to the prosecution's contention that the
shooting was intentional. . . . To sustain the accused's assertion that he was practicing the use of said weapon at
the time of the incident is patently absurd. The defense even failed to rebut Guillermo Antiporta's testimony that
the accused was keeping said sling and arrow inside his house.
It might be true that the accused was one of those who rushed the victim to the hospital and while on the way,
he sounded remorseful. But Guillermo Antiporta further testified that while the victim was being attended to by
the medical personnel of said hospital, the accused stayed outside the hospital premises, then he disappeared.
He was later on apprehended by police authorities while hiding inside the comfort room of a premises in an
adjoining barangay. The accused's omission to surrender himself to the authorities is a clear indication of guilt.
3
59
After several hearings, the trial court rendered on October 5, 1998, a decision, 4 the dispositive portion of
which reads:
WHEREFORE, this Court hereby finds accused ISAIAS CASTILLO Y COMPLETO GUILTY beyond
reasonable doubt of the crime of PARRICIDE and hereby sentences him to a penalty of RECLUSION
PERPETUA and to indemnify the heirs of the victim in the sum of P50,000.00, as moral damages. aSTAHD
SO ORDERED. 5
Appellant filed an appeal with the Court of Appeals, alleging that the prosecution failed to sufficiently establish
his guilt beyond reasonable doubt. However, in a Decision 6 dated February 28, 2005, the Court of Appeals
denied appellant's appeal and affirmed with modification the decision of the trial court, to wit:
WHEREFORE, premises considered, the decision dated October 5, 1998 of the Regional Trial Court, Branch 24
of Bian, Laguna is hereby AFFIRMED with the modification that accused-appellant Isaias Castillo y Completo
is further ordered to indemnify the heirs of the victim the amount of P50,000.00 as civil indemnity.
SO ORDERED. 7
Appellant filed a motion for reconsideration but it was denied in a Resolution dated June 16, 2005.
Hence, this appeal.
Appellant likewise claimed that it was not established that he was the one who shot his wife with a deadly arrow
considering that at the time of the incident, he and his drinking buddies were all engaged in target shooting
using the sling and arrow. Hence, he surmised that any one of them could have shot the victim. At any rate, even
assuming that he was the one who killed his wife, the same was accidental and not intentional. DHITCc
Furthermore, he claimed that his presence at the crime scene did not establish his guilt beyond reasonable
doubt. His arrest while hiding inside a toilet in the adjoining barangay, while his wife was being treated in the
hospital, likewise does not prove his complicity since the prosecution did not prove that he deliberately hid
inside the toilet.
Finally, the letters he sent to his father-in-law, mother-in-law and sister-in-law where he asked for forgiveness
should not be considered as admission of guilt.
The petition lacks merit.
Direct evidence of the commission of the offense is not the only matrix wherefrom a trial court may draw its
conclusions and finding of guilt. Conviction can be had on the basis of circumstantial evidence provided that:
(1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3)
the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. While no
general rule can be laid down as to the quantity of circumstantial evidence which will suffice in a given case, all
the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is
guilty, and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational
hypothesis except that of guilt. The circumstances proved should constitute an unbroken chain which leads to
only one fair and reasonable conclusion that the accused, to the exclusion of all others, is the guilty person. 8
Proof beyond reasonable doubt does not mean the degree of proof excluding the possibility of error and
producing absolute certainty. Only moral certainty or "that degree of proof which produces conviction in an
unprejudiced mind" is required. 9
Appellant alleged that the pieces of circumstantial evidence on which his conviction was based did not
sufficiently establish his guilt beyond reasonable doubt; that the prosecution failed to prove his motive in killing
his wife; or that they had a quarrel immediately prior to the incident.
60
In the instant case, all the essential requisites for circumstantial evidence to sustain a conviction, are present. As
correctly found by the Court of Appeals, the following pieces of circumstantial evidence indubitably established
that appellant was the perpetrator of the crime, to wit:
1. Consortia would often confide to her sister Leticia about the violent behavior of her (Consortia) husband,
herein accused-appellant. And even if Consortia would not tell Leticia about the beatings, the latter would see
her face with black eyes as evident proofs of maltreatment.
2. On the night of the incident, accused-appellant arrived at their house drunk and displaying violent behavior,
kicking the door and table.
in searching for accused-appellant, the latter was found by the police hiding inside a toilet at a nearby barangay.
10
There is no merit in appellant's contention that the prosecution failed to prove motive in killing his wife. Intent
to kill and not motive is the essential element of the offense on which his conviction rests. 11 Evidence to
prove intent to kill in crimes against persons may consist, inter alia, in the means used by the malefactors, the
nature, location and number of wounds sustained by the victim, the conduct of the malefactors before, at the
time, or immediately after the killing of the victim, the circumstances under which the crime was committed
and the motives of the accused. If the victim dies as a result of a deliberate act of the malefactors, intent to kill
is presumed. 12
3. Accused-appellant was last seen holding and practicing his sling and arrow.
In the instant case, the following circumstances satisfactorily established appellant's intent to kill his wife:
4. Immediately afterwards, Consortia was heard crying and shouting.
5. Accused-appellant was thereafter seen carrying Consortia, bloodied and unconscious, to be brought to the
hospital where she later died.
6. The autopsy findings indicate that Consortia sustained a punctured wound in the neck which fatally lacerated
her jugular vein. The cause of the wound was a pointed object.
7. While detained, accused-appellant wrote letters to the parents and sister of Consortia asking for forgiveness.
DCcIaE
Also notable is accused-appellant's behavior immediately after the incident. He disappeared and did not enter
the clinic where Consortia was rushed for treatment. And when Consortia's sister later sought police assistance
First: The killing was immediately preceded by a quarrel between the appellant and his wife. Leticia, the
victim's sister, testified that the deceased suffered from the violent behavior of the appellant who would often
lay hand on the victim during their marital squabbles.
Guillermo, appellant's father-in-law, testified that on the night of the incident, appellant arrived in their conjugal
abode drunk and in a foul mood. He kicked the door and table and threw away the electric fan. Guillermo tried
to prevail upon appellant but to no avail. Instead, appellant got his sling and arrow which he kept near the
ceiling.
Guillermo left appellant's house and went to the house of his daughter-in-law, Yolanda, located about four
meters away; but he could still hear the victim and appellant arguing and shouting at each other. After a while,
Guillermo requested Yolanda to look on her sister-in-law. On her way, Yolanda met the appellant carrying
Consorcia soaked in blood.
61
Second: It has always been said that criminal cases are primarily about human nature. 13 In the instant case,
appellant disappeared after his wounded wife was rushed to the hospital. This is indeed contrary to human
nature. A husband is expected to lend comfort to his dying wife up to her last breath. In this case, however,
appellant took flight. It is well-established that the flight of an accused is competent evidence to indicate his
guilt, and flight, when unexplained, as in this case, is a circumstance from which an inference of guilt may be
drawn. 14
Appellant alleged that his arrest by police authorities inside a toilet at the adjoining barangay is not an
indication of guilt because the prosecution failed to prove that he deliberately hid in order to evade being
arrested. 15
The contention lacks merit.
As above-discussed, it is contrary to human nature for a husband to leave his dying wife, more so if his absence
is unexplained. Appellant did not offer any explanation for his flight. In appellant's brief, he claimed that in "all
probability, it might have happened that he (appellant) was merely answering the call of nature at the precise
time when he was arrested." 16 However, we find it is highly illogical for appellant to go as far as the
adjoining barangay to answer the call of nature especially since he could do so inside the premises of the
hospital. Moreover, the allegation that he was fearful of reprisal coming from the victim's relatives 17 is
contrary to his claim of innocence. aSIATD
Third: The location of the wound and its extent likewise proved appellant's intent to kill the victim. The autopsy
report revealed that the victim sustained a punctured wound in the neck, a vital organ, which fatally lacerated
her jugular vein causing massive hemorrhage. The extent of the physical injury inflicted on the deceased
manifests appellant's intention to extinguish life. 18
Fourth: As regards appellant's act of carrying the body of his wounded wife and bringing her to the hospital, the
same does not manifest innocence. It is merely an indication of an act of repentance or contrition on the part of
appellant. 19
In fine, all these circumstances prove appellant's intent to harm his wife.
There is likewise no merit in appellant's contention that he was not the one who shot the deadly arrow because
at the time of the incident, he and his drinking buddies were all playing and practicing target shooting with the
use of the sling and arrow.
Prosecution witness Guillermo Antiporta categorically testified that appellant was alone with his wife inside
their house when the incident happened. This completely discounts the possibility that other than appellant,
there could be another person or persons who could have perpetrated the crime. There is no paucity of evidence
because the time when Guillermo left the appellant and the victim up to the time Yolanda saw him carrying his
wife, were all accounted for. Moreover, the testimony of defense witness Galang supports the prosecution's
contention that appellant was alone with his wife at the time of the incident. As noted by the Court of Appeals:
Defense witness, Jose Nelson Galang, testified that he left his drinking buddies and headed home at about 9:00
p.m., as in fact he was already in bed at about 10:00 p.m. when he saw that Consortia was being rushed to the
hospital. Instead of weakening the evidence for the prosecution, Galang's testimony even supports the
prosecution's version that between 9:00 p.m. and 10:00 p.m. of that fateful night, accused-appellant arrived at
their house drunk, presumably going home from that drinking session with his friends. . . . 20 THAICD
There is likewise no merit in appellant's contention that assuming he was the one who killed his wife, the same
was accidental and not intentional. The exempting circumstance of accident is not applicable in the instant case.
Article 12, par. 4 of the Revised Penal Code, provides:
ART. 12. Circumstances which exempt from criminal liability. The following are exempt from criminal
liability:
xxx xxx xxx
62
4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault
or intention of causing it.
"Accident" is an affirmative defense which the accused is burdened to prove, with clear and convincing
evidence. 21 The defense miserably failed to discharge its burden of proof. The essential requisites for this
exempting circumstance, are:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident;
Furthermore, by claiming that the killing was by accident, appellant has the burden of proof of establishing the
presence of any circumstance which may relieve him of responsibility, and to prove justification he must rely on
the strength of his own evidence and not on the weakness of the prosecution, for even if this be weak, it can not
be disbelieved after the accused has admitted the killing. 24 Other than his claim that the killing was
accidental, appellant failed to adduce any evidence to prove the same.
Likewise, we cannot lend credence to appellant's contention that the letters he wrote to his parents-in-law and
sister-in-law, where he asked for forgiveness, should not be considered as an implied admission of guilt. He
claimed that he wrote the letters in order to explain that what happened was an accident and that he was to be
blamed for it because he allowed his drinking buddies to play with the sling and arrow.
Settled is the rule that in criminal cases, except those involving quasi-offenses or those allowed by law to be
settled through mutual concessions, an offer of compromise by the accused may be received in evidence as an
implied admission of guilt. Evidently, no one would ask for forgiveness unless he had committed some wrong
and a plea for forgiveness may be considered as analogous to an attempt to compromise. 25 Under the present
circumstances, appellant's plea for forgiveness should be received as an implied admission of guilt. Besides,
contrary to appellant's assertion, the killing of Consorcia was deliberate, and not by accident. HIaAED
4. Without fault or intention of causing it. 22
By no stretch of imagination could playing with or using a deadly sling and arrow be considered as performing
a "lawful act." Thus, on this ground alone, appellant's defense of accident must be struck down because he was
performing an unlawful act during the incident. As correctly found by the trial court:
Furthermore, mere possession of sling and arrow is punishable under the law. In penalizing the act, the
legislator took into consideration that the deadly weapon was used for no legal purpose, but to inflict injury,
mostly fatal, upon other persons. Let it be stressed that this crude weapon can not attain the standards as an
instrument for archery competitions. To sustain the accused's assertion that he was practicing the use of said
weapon at the time of the incident is patently absurd. The defense even failed to rebut Guillermo Antiporta's
testimony that the accused was keeping said sling and arrow inside his house. 23
Finally, we find no cogent reason to review much less depart now from the findings of the lower court as
affirmed by the Court of Appeals. When the trial court's factual findings have been affirmed by the appellate
court, said findings are generally conclusive and binding upon this Court, for it is not our function to analyze
and weigh the parties' evidence all over again except when there is serious ground to believe a possible
miscarriage of justice would thereby result. Our task in an appeal via certiorari is limited, as a jurisdictional
matter, to reviewing errors of law that might have been committed by the Court of Appeals. 26
Parricide under Article 246 of the Revised Penal Code is punishable by reclusion perpetua to death. The trial
court and the Court of Appeals correctly imposed the penalty of reclusion perpetua. Likewise, civil indemnity in
the amount of P50,000.00 and moral damages in the amount of P50,000.00 were properly awarded by the courts
below.
63
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated February 28, 2005 which
affirmed with modification the judgment of the Regional Trial Court of Bian, Laguna, Branch 24, finding
appellant Isaias Castillo y Completo guilty of parricide and sentencing him to suffer the penalty of reclusion
perpetua and ordering him to pay the heirs of his victim P50,000.00 as moral damages and P50,000.00 as civil
indemnity, is AFFIRMED. IacHAE
SYLLABUS
With costs.
1. CRIMINAL LAW; INFANTICIDE AND ABANDONMENT OF A MINOR; WHEN PUNISHABLE.

Infanticide and abandonment of a minor, to be punishable, must be committed willfully or consciously, or at
least it must be the result of a voluntary, conscious and free act or omission. Even in cases where said crimes are
committed through mere imprudence, the person who commits them, under said circumstance, must be in the
full enjoyment of his mental faculties, or must be conscious of his acts, in order that he may be held liable.
SO ORDERED.
||| (People v. Castillo y Completo, G.R. No. 172695, [June 29, 2007], 553 PHIL 197-210)
2. ID.; EXEMPTION FROM CRIMINAL LIABILITY. The law exempts from criminal liability any person
who acts under the circumstances in which the appellant acted in this case, by giving birth to a child in a thicket
and later abandoning it, not because of imprudence or any other cause than that she was overcome by severe
dizziness and extreme debility, with no fault or intention on her part. She has in her favor the fourth and seventh
exempting circumstances.
DECISION
EN BANC
DIAZ, J p:
[G.R. No. 45186. September 30, 1936.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. JOSEFINA BANDIAN, defendantappellant.
Jose Rivera Yap for appellant.
Charged with the crime of infanticide, convicted thereof and sentenced to reclusion perpetua and the
corresponding accessory penalties, with the costs of the suit, Josefina Bandian appealed from said sentence
alleging that the trial court erred:
"I. In taking into consideration, to convict her, her alleged admission to Dr. Nepomuceno that she had thrown
away her newborn babe, and
Solicitor-General Hilado for appellee.
64
"II. In holding her guilty of infanticide, beyond a reasonable doubt, and in sentencing her to reclusion perpetua,
with costs."
appellant was an infanticide. The Solicitor-General, however, does not agree with both. On the contrary, he
maintains that the appellant may be guilty only of abandoning a minor under subsection 2 of article 276 of the
Revised Penal Code, the abandonment having resulted in the death of the minor allegedly abandoned.
The facts of record may be summarized as follows:
At about 7 o'clock in the morning of January 31, 1936, Valentin Aguilar, the appellant's neighbor, saw the
appellant go to a thicket about four or five brazas from her house, apparently to respond to a call of nature
because it was there that the people of the place used to go for that purpose. A few minutes later, he again saw
her emerge from the thicket with her clothes stained with blood both in the front and back, staggering and
visibly showing signs of not being able to support herself. He ran to her aid and, having noted that she was
every weak and dizzy, he supported and helped her go up to her house and placed her in her own bed. Upon
being asked before Aguilar brought her to her house, what had happened to her, the appellant merely answered
that she was very dizzy. Not wishing to be alone with the appellant in such circumstances, Valentin Aguilar
called Adriano Comcom, who lived nearby, to help them, and later requested him to take bamboo leaves to stop
the hemorrhage which had come upon the appellant. Comcom had scarcely gone about five brazas when he saw
the body of newborn babe near a path adjoining the thicket where the appellant had gone a few moments before.
Comcom informed Aguilar of it and the latter told him to bring the body to the appellant's house. Upon being
asked whether the baby which had just been shown to her was hers or not, the appellant answered in the
affirmative.
Upon being notified of the incident of 2 o'clock in the afternoon of said day, Dr. Emilio Nepomuceno, president
of the sanitary division of Talisayan, Oriental Misamis, went to the appellant's house and found her lying in bed
still bleeding. Her bed, the floor of her house and beneath it, directly under the bed, were full of blood. Basing
his opinion upon said facts, the physician in question declared that the appellant gave birth in her house and in
her own bed; that after giving birth she threw her child into the thicket to kill it for the purpose of concealing
her dishonor from the man, Luis Kirol, with whom she had theretofore been living maritally, because the child
was not but of another man with whom she had previously had amorous relations. To give force to his
conclusions, he testified that the appellant had admitted to him that she had killed her child, when he went to her
house at the time and on the date above-stated.
The prosecuting attorney and the lower court giving absolute credit to Dr. Nepomuceno whose testimony was
not corroborated but, on the contrary, was contradicted by the very witnesses for the prosecution and by the
appellant, as will be stated later, they were of the opinion and the lower court furthermore held, that the
By the way, it should be stated that there is no evidence showing how the child in question died. Dr.
Nepomuceno himself affirmed that the wounds found on the body of said child were not caused by the hand of
man but by bites of animals, the pigs that usually roamed through the thicket where it was found.
Infanticide and abandonment of a minor, to be punishable, must be committed wilfully or consciously, or at

least it must be the result of a voluntary, conscious and free act or omission. Even in cases where said crimes are
committed through mere imprudence, the person who commits them, under said circumstance, must be in the
full enjoyment of his mental faculties, or must be conscious of his acts, in order that he may be held liable.
The evidence certainly does not show that the appellant, in causing her child's death in one way or another, or in
abandoning it in the thicket, did so wilfully, consciously or imprudently. She had no cause to kill or abandon it,
to expose it to death, because her affair with a former lover, which was not unknown to her second lover, Luis
Kirol, took place three years before the incident; her married life with Kirol she considers him her husband
as he considers her his wife began a year ago; as he so testified at the trial, he knew that the appellant was
pregnant and he believed from the beginning, affirming such belief when he testified at the trial, that the child
carried by the appellant in her womb was his, and he testified that he and she had been eagerly waiting for the
birth of the child. The appellant, therefore, had no cause to be ashamed of her pregnancy to Kirol.
If to the foregoing facts is added the testimony of the witnesses Valentin Aguilar and Adriano Comcom that the
child was taken from the thicket and carried already dead to the appellant's house after the appellant had left the
place, staggering, without strength to remain on her feet and very dizzy, to the extent of having to be as in fact
she was helped to go up to her house and to lie in bed, it will clearly appear how far from the truth were Dr.
Nepomuceno's affirmation and conclusions. Also add to all these the fact that the appellant denied having made
any admission to said physician and that from the time she became pregnant she continuously had fever. This
illness and her extreme debility undoubtedly caused by her long illness as well as the profuse hemorrhage which
she had upon giving birth, coupled with the circumstance that she is a primipara, being then only 23 years of
age, and therefore inexperienced as to childbirth and as to the inconvenience or difficulties usually attending
such event; and the fact that she, like her lover Luis Kirol a mere laborer earning only twenty-five centavos a
day is uneducated and could not supplant with what she had read or learned from books what experience
65
itself could not aware of her childbirth, or if she was, it did not occur to her or she was unable, due to her
debility or dizziness, which causes may be considered lawful or insuperable to constitute the seventh exempting
circumstance (art. 12, Revised Penal Code), to take her child from the thicket where she had given it birth, so as
not to leave it abandoned and exposed to the danger of losing its life.
The act performed by the appellant in the morning in question, by going into the thicket, according to her, to
respond to call of nature, notwithstanding the fact that she had fever for a long time, was perfectly lawful. If by
doing so she caused a wrong as that of giving birth to her child in that same place and later abandoning it, not
because of imprudence or any other reason than that she was overcome by strong dizziness and extreme
debility, she should not be blamed therefor because it all happened by mere accident, with no fault or intention
on her part. The law exempts from liability any person who so acts and behaves under such circumstances (art.
12, subsection 4, Revised Penal Code).
In conclusion, taking into account the foregoing facts and considerations, and granting that the appellant was
aware of her involuntary childbirth in the thicket and that she later failed to take her child therefrom, having
been so prevented by reason of causes entirely independent of her will, it should be held that the alleged errors
attributed to the lower court by the appellant are true; and it appearing that under such circumstances said
appellant has the fourth and seventh exempting circumstances in her favor, she is hereby acquitted of the crime
of which she had been accused and convicted, with costs de oficio, and as she is actually confined in jail in
connection with this case, it is ordered that she be released immediately. So ordered.
Avancea, C.J. and Abad Santos, J., concur.
Separate Opinions
VILLA-REAL, J., concurring:
The evidence conclusively shows that on the day in question the accused Josefina Bandian had spent a year of
marital life with her lover Luis Kirol by whom she was begotten with a child for the first time. He said lover
knew that she was pregnant and both were waiting for the arrival of the happy day when the fruit of their love
should be born. Since she became pregnant she continuously had fever, was weak and dizzy. On January 31,
1936, at about 7 o'clock in the morning, she went down from her house and entered a thicket about four or five
brazas away, where the residents of said place responded to the call of nature. After some minutes the accused
emerged from the thicket staggering and apparently unable to support herself. Her neighbor Valentin Aguilar,
who saw her enter the thicket and emerge therefrom, ran to help her, supported her and aided her in going up to
her house and to bed. Asked by Aguilar what had happened to her, she merely answered that she was very dizzy.
Thinking that he alone was unable to attend to her, Valentin Aguilar called Adriano Comcom, who lived nearby,
and requested him to take bamboo leaves to stop the appellant's hemorrhage. Adriano had scarcely gone about
five brazas when he saw the body of a newborn child near the path adjoining the thicket where the accused had
been a few moments before. Upon being informed of the discovery, Valentin Aguilar told Adriano Comcom to
bring the child into the appellant's house. Upon being asked whether or not the child shown to her was hers, the
appellant answered in the affirmative. After an autopsy had been made of the body, it was found that the child
was born alive.
Unconscious, precipitate or sudden deliveries are well known in legal medicine among young primiparae who,
by reason of their ignorance of the symptoms of parturition and of the process of expulsion of the fetus, are not
aware that they are giving birth when they are responding to an urgent call of nature (Dr. A. Lacassagne, Precis
de Medicine Legale, pages 799-781; Annales de Medicine Legale, December 1926, page 530; Vibert, Manual de
Medicina Legal y Toxicologia, vol. I, pages 512-514). There is no doubt that the accused, in her feverish, weak
and dizzy condition when she went into the thicket to defecate and being a primipara with no experience in
childbirth, was not aware that upon defecating she was also expelling the child she was carrying in her womb.
Believing that she did nothing more than to respond to an urgent call of nature which brought her there, she
returned home staggering for lack of strength to support herself and for being dizzy, without suspecting that she
was leaving a newborn child behind her, and she only knew that she had given birth when she was shown the
already dead child with wounds on the body produced by the bites of pigs.
I concur in the acquittal of the accused Josefina Bandian not on the ground that she is exempt from criminal
liability but because she has committed no criminal act or omission.
66
Article 3 of the Revised Penal Code provides that acts and omissions punishable by law are felonies, which may
be committed not only by means of deceit (dolo) but also by means of fault (culpa); there being deceit when the
act is performed with deliberate intent, and fault when the wrongful act results from imprudence, negligence,
lack of foresight or lack of skill.
As the herein accused was not aware that she had delivered and that the child had been exposed to the rough
weather and to the cruelty of animals, it cannot be held that she deceitfully committed the crime of infanticide
or that of abandonment of a minor, because according to the abovecited legal provision, there is deceit when the
act punishable by law is performed with deliberate intent. Suffering from fever and from dizziness, the appellant
under the circumstances was not aware that she had given birth and, consequently, she could not have
deliberately intended to leave her child, of whose existence she was ignorant, to perish at the mercy of the
elements and of the animals. Neither can it be held that she faultily committed it because, as already stated, not
knowing for lack of experience in childbirth that in defecating a perfectly lawful physiological act, being
natural she might expel the child she carried in her womb, she cannot be considered imprudent, a
psychological defect of a person who fails to use his reasoning power to foresee the pernicious consequences of
his willful act. Having had no knowledge of the fact of her delivery, the accused could not think that by leaving
the child in the thicket, it would die as a consequence of the she be considered negligent because negligence is
the omision to do what the law or morals obliges one to do, which rough weather or of the cruelty of the
animals. Neither can implies knowledge of the thing which is the subject matter of the compliance with the
obligation. Inasmuch as the accused was not aware of her delivery, her mind cannot contemplate complying
with her legal and moral duty to protect the life of her child. Neither can it be held that the appellant lacked
foresight because, having been absolutely ignorant of her delivery, she could not foresee that by abandoning her
child in a thicket it would die. Neither can it be held that her act was the result of lack of skill because she did
not know that to defecate in a state of pregnancy might precipitate her delivery, and as defecation is a natural
physiological function, she could not refrain from satisfying it.
prevented by some lawful or insuperable cause, that is by some motive which has lawfully, morally or
physically prevented one to do what the law commands. In the present case, what the law requires of the
accused-appellant, with respect to the child, is that she care for, protect and not abandon it. Had she been aware
of her delivery and of the existence of the child, neither her debility nor her dizziness resulting from the fever
which consumed her, being in the full enjoyment of her mental faculties and her illness not being of such
gravity as to prevent her from complying with her duties by herself, or from asking for help, would constitute
the lawful or insuperable impediment required by law. Having been ignorant of her delivery and of the existence
of the child, to her there was subjectively no cause for the law to impose a duty for her to comply with.
Having had no knowledge of the expulsion of her fetus, the death thereof resulting from its exposure of the
rough weather and to the cruelty of the animals cannot be imputed to the accused, because she had neither
deceitfully nor faultily committed any act or omission punishable by law with regard to the child.
Imperial, J., concur.

||| (People v. Bandian, G.R. No. 45186, [September 30, 1936], 63 PHIL 530-539)
EN BANC
We cannot apply to the accused the fourth exempting circumstance of article 12 of the Revised Penal Code
which reads: "Any person who, while performing a lawful act with due care, causes an injury by mere accident
without fault or intention of causing it," because although the lawful act of satisfying a natural physiological
necessity accidentally provoked the delivery, the delivery itself was not an injury, but the exposure of the child
at the mercy of the elements and of the animals which caused its death. As the child was born alive, if the
accused had been aware of her delivery and she had deliberately abandoned the child, her accidental delivery
would not exempt her from criminal liability because then the death of said child no longer would have been
accidental. Neither can we consider the seventh exempting circumstance of article 12 of the Revised Penal Code
consisting in the failure to perform an act required by law, when prevented by some lawful or insuperable cause,
because this exempting circumstance implies knowledge of the precept of the law to be complied with but is
[G.R. No. L-64. October 28, 1946.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MIGUEL M. MORENO, defendant-appellant.
Santiago F. Alidio, for appellant.
67
First Assistant Solicitor General Reyes, Assistant Solicitor Caizares and Solicitor Luciano, for appellee.
SYLLABUS
1. CRIMINAL. PROCEDURE; TRIAL; RIGHT OF ACCUSED TO AT LEAST TWO DAYS TO PREPARE;

WAIVER. The defendant after arraignment is entitled to at least two days to prepare for trial, except when
the case is on appeal from the justice of the peace. But this right may be waived either expressly, or impliedly
by not asking for time to prepare for trial.
2. ID.; PRELIMINARY INVESTIGATION UNDER SECTIONS 1 AND 7 OF RULE 108; MEANING OF.
Sections 1 and 7, Rule 108, of the Rules of Court use the words "preliminary investigation," but a cursory
reading thereof would clearly show that the investigation mentioned therein is not the preliminary investigation
proper in which the defendant has the right to present his evidence. That is the reason why said investigation
made for the purpose of issuing the warrant of arrest of a defendant if it appears that his arrest is justified, is
defined by section 1 as "a previous inquiry or examination made before the arrest of the defendant."
3. ID.; WARRANT OF ARREST; QUESTION RELATING TO ISSUANCE OF NOTHING TO DO WITH

PRELIMINARY INVESTIGATION AND CANNOT BE RAISED FOR FIRST TIME ON APPEAL.
Whether or not the warrant of arrest issued by the municipal judge of Zamboanga was issued without a probable
cause, has nothing to do with the right of the defendant to a preliminary investigation, and cannot be raised for
the first time on appeal from a judgment in which the defendant is found guilty of the offense charged beyond a
reasonable doubt and sentenced to death.
4. ID.; PRELIMINARY INVESTIGATION AS PART OF DUE PROCESS OF LAW; WHAT IS. The
preliminary investigation proper to which the defendant is entitled as a part of the due process of law in those
cases in which the statute provides for it, is that established by section 11, of same Rule 108, and consist in the
right of the defendant, after his arrest, to "be informed of the complaint or information filed against him . . .", of
the substance of the testimony and evidence presented against him, and to be allowed "to testify or to present
witnesses or evidence in his favor."
5. CRIMINAL LAW; MURDER; OBEDIENCE TO ORDER OF SUPERIOR, WHEN A DEFENSE CASE AT

BAR. In killing the deceased, the defendant has not acted in obedience to an order issued by a superior for
some lawful purpose. The alleged order was not for lawful purpose, because the deceased was to be killed
without any previous trial or hearing, and commander S has no authority to give or issue such an order.
6. ID.; ID.; COMPULSION OF IRRESISTIBLE FORCE; IMPULSE OF UNCONTROLLABLE FEAR OF

EQUAL OR GREATER INJURY; WHEN CONSIDERED DEFENSES; CASE AT BAR. The appellant is
not exempt from criminal liability under subsections 5 and 6, article 12, of the same Revised Penal Code, which
exempt from criminal liability any person "who acts under the compulsion of an irresistible force," or "who acts
under the impulse of an uncontrollable fear of an equal or greater injury. "Because it is plain that there was no
compulsion of an irresistible force that compelled the defendant to kill the victim against his will; nor was there
any threat of such a serious character and imminence as to create in the mind of the defendant an uncontrollable
fear that an equal or greater evil or injury would be inflicted upon him if he did not comply with the alleged
order to kill the deceased.
Per PERFECTO, M., tutol:
7. KARAPATAN NG NASASAKDAL; SALIGANG BATAS. Sangayon sa rekord, sa lahat ng mga hakbang

na ginawa sapul sa pagkahuli ng nasasakdal hanggang ang mga papel ng usapin ay mailipat sa hukumang unang
dulugan, kahit sa alin mang sandali ay ang nasasakdal ay hindi nagkamit ng kahit kaunting tulong ng isang
manananggol. Itong kakulangang ito ay isang maliwanag na pag labag sa Saligang Batas.
8. ID.; PALATUNTUNAN NG HUKUMAN. Ang karapatan ng isang nasasakdal na ipagtanggol ng isang

manananggol ay dapat kamtan sa lahat at bawat isa sa mga hakbang ng paglilitis, sapul sa siya'y basahan ng
sakdal (section 1, Rule 111). Sang-ayon sa mga palatuntunan ng mga hukuman, sa sandaling pagharap ng
nasasakdal sa pagbasa ng sakdal, pag ang nasasakdal ay humarap ng walang kasamang manananggol,
tungkuling mahigpit ng hukuman na tanugin ang nasasakdal kung nais niyang siya'y tulungan ng isang
manananggol, at pag ang nasasakdal ay walang kayang kumuha ng sariling manananggol, tungkulin ng
hukuman ang humirang ng isang manananggol (section 3, Rule 112). Sa nasa ng Kataastaasang Hukuman na
ang karapatan na ating pinaguusapan ay huwag matawaran kahit sa anong paraan, iniuutos tuloy na pag
kalooban ang isang nasasakdal ng isang manananggol kahit hindi titulado sa mga pook na walang maapuhap na
68
kahit isa mang may titulo, huwag lamang mangyari na ang isang nasasakdal ay mawalang mahusay na katulong
sa sakunang kaniyang hinaharap (section 4, Rule 112).
9. ID.; ID. Sangayon sa mga palatuntunan ng mga hukuman katapus na sagutin ang sakdal, ang nasasakdal
ay mayroong karapatang pagkalooban ng panahong hindi bababa sa dalawang araw upang makapaghanda sa
paglilitis (section 7, Rule 114). gayon pa man, itong mahigpit na kautusan ng tuntunin ay sadyang nilabag, at
pagkaraan ng mga ilang minuto lamang na mabasa ang sakdal sinimulang agad ang paglilitis sa ika siyam ng
umaga ding iyon. Dahil sa mga pangyayaring nasasaad sa itaas, ay aming ipinalalagay na ang nasasakdal na si
M ay pinagkaitan ng kaniyang karapatan na bigyan ng panahong hindi bababa sa dalawang araw upang
makapaghanda sa paglilitis at ng kaniyang karapatang nasasalig sa Saligang Batas na magkaroon ng tulong ng
isang manananggol at ito'y laban sa mga subsexion 15 at 17 ng sexion 1, Artikulo III, ng Saligang Batas.
DECISION
FERIA, J p:
This is an appeal by the defendant Miguel M. Moreno from the judgment of the Court of First Instance of
Zamboanga, which found him guilty of the crime charged with the aggravating circumstances of premeditation
and cruelty and without any mitigating circumstance, and sentenced the defendant to death and to indemnify the
heirs of the deceased.
The appellant was at the outbreak of the war a prisoner serving sentence in the San Ramon Penal Colony Farm,
situated in the City of Zamboanga. During the Japanese occupation, he befriended and gained the confidence of
the Japanese naval authorities, was released from prison, and appointed Captain of a semi-military organization
known as Kaigun Jeutay, composed of Filipinos and sponsored by the Japanese navy. On October 23, 1944, the
defendant was appointed by the Japanese naval authorities as section commander of the San Ramon Penal
Colony with plenary powers of supervision and control over said colony and its environs.
On November 23, 1944, a group of defendant's soldiers went to the house of Paciano de los Santos, and too with
them two single young daughters of said Paciano, and on the next day, when the deceased went to San Ramon
Penal Colony, he was confined in a cell by order of the defendant.
On the night of December 1, 1944, defendant gathered all the prison officials and employees of San Ramon
Penal Colony in a meeting in the house of P. D. Dellosa then Assistant Superintendent of the institution, and in
that gathering the accused arrogantly announced that he was not afraid to cut the head of anybody, ordered all
those present to witness the execution of Paciano de los Santos the following day, and instructed Gregorio
Magalit, a prisoner employee of said institution to prepare the grave for said Paciano and issue a formal
memorandum to that effect. A photostatic copy of which was presented as Exhibit D during the trial.
And in the morning of December 2, 1944, Paciano de los Santos was taken to a place known as Fishery
Division of the colony with both hands tied at the back, and there the defendant ordered the victim Paciano to
kneel down with the head bent forward by the side of the grave already prepared for him by order of the
accused, and in that position the accused with a Japanese sobre held in the handle by his both hands, hacked the
head of Paciano de los Santos, and immediately kicked the prostrate body of the victim into the grave.
The facts above stated were established beyond a peradventure of doubt by the testimony of the witnesses for
the prosecution, and are substantially admitted by the defendant in his testimony during the trial. When the
defendant was asked whether he killed Paciano de los Santos in the form and manner described by the witness
for the prosecution, he answered the following: "When I arrived at the place the deceased Paciano de los Santos
was already in the place where I was to execute him, and was taken there by four Japanese and several guards of
San Ramon, and on the way they have instructed me how should I kill him, I did kill him in the form and
manner testified to by the witnesses for the prosecution." (Pp. 49, 50, t. s. n.)
The attorney de oficio appointed by this court for the defendant contends, in the four assignments of errors as
signed in his brief, that the court below erred (1) in trying the defendant in the same day on which he was
arraigned and pleaded not guilty, and not granting him two days to prepare for trial as provided by law; (2) in
trying and convicting the accused without a preliminary investigation by the municipal judge or Fiscal of
Zamboanga City; (3) in not compelling, by process of subpoena, the attendance of witnesses in behalf of the
defendant, and finding, despite this failure, that the latter's testimony was not corroborated by any witness; and
(4) in finding the accused guilty of murder with two aggravating circumstances and imposing upon him the
penalty of death.
69
(1) As to the first assigned error of the court below, it is true that, according to section 7, Rule 114, the
defendant after arraignment is entitled to at least two days to prepare for trial, except when the case is on appeal
from the justice of the peace. But this court in several cases, among them, the case of People vs. Cruz (54 Phil.,
24, 28), has already construed said section and held that the said right may be waived either expressly, or
impliedly by not asking for time to prepare for trial. In the present case, the defendant has waived his right to
have at least two days to prepare for trial, by submitting himself and not objecting to the trial ordered by the
court on the same day in which he was arraigned. The decision of this court in the case of People vs. Valte (43
Phil., 907), quoted by the attorney for the accused, does not support his contention, for in the said case the
defendant did not waive but exercised his right by demanding that he be granted two days to prepare for trial.
Besides, taking into consideration the fact that the defendant admitted having killed the victim in the form and
manner testified to by the witnesses for the prosecution, and the only defense he alleged is that he was ordered
to do by Japanese naval authorities; that the defendant had in fact been given time to prepare for his defense,
because before the trial had begun, the said attorney, after a conference with the defendant, asked the court to
issue subpoena and subpoena duces tecum to Nicanor Punsalan and Timoteo Almonte, employees in San Ramon
Penal Colony, and to Gregorio Magalit, a detainee in the stockade of Zamboanga, and the suboenas were issued
and served on the same date, August 6, upon them; and that after three of the witnesses for the prosecution had
testified, the trial was adjourned and continued on August 7 and 8; it may be concluded that had there been any
error such an error is not a reversible one, for it did not impair the substantial rights of the defendant.
defined by section 1 as "a previous inquiry or examination made before the arrest of the defendant." Whether or
not the warrant of arrest issued by the municipal judge of Zamboanga was issued without a probable cause, has
nothing to do with the right of the defendant to a preliminary investigation, and cannot be raised for the first
time on appeal from a judgment in which the defendant is found guilty of the offense charged beyond a
reasonable doubt and sentenced to death.
The preliminary investigation proper to which the defendant is entitled as a part of the due process of law in
those cases in which the statute provides for it, is that established by section 11, of same Rule 108, and consist
in the right of the defendant, after his arrest, to "be informed of the complaint or information filed against him . .
. of the substance of the testimony and evidence presented against him," and to be allowed "to testify or to
present witness or evidence in his favor." And the defendant has waived expressly his right to that preliminary
investigation, as above stated.
(3) In this third assignment of error, the attorney for the defendant states that "the lower court erred in not
compelling by process of subpoena the attendance of witnesses in behalf of the appellant as provided by the
Philippine Constitution, and finding despite this failure, that the testimony of the appellant was corroborated by
any witnesses."
(2) With respect to the second assignment of error, the record shows that the defendant has waived his right to a
preliminary investigation in a communication called a motion of July 30, 1945, filed with the court, in which
the said defendant states that "he respectfully waives his right to a preliminary investigation and request that this
case be remanded to the Court of First Instance of Zamboanga for final decision."
This assignment of error is clearly without foundation; because the same attorney admits in his brief that, the
would be witnesses for the defense Nicanor Punsalan, Timoteo Almonte and Gregorio Magalit were, upon
petition of his attorney in the court below, served on August 6 with subpoena and subpoena duces tecum issued
by the court. That "Nicanor Punsalan and Timoteo Almonte were not examined or presented as witnesses in
behalf of the appellant," does not support the contention of defendant's attorney that they have not been
compelled by subpoena to appear in court as witnesses. The presumption is that they had appeared in
compliance with the subpoena, there being nothing in the record to show the contrary, and that if they had not
been presented as such by the attorney for the defendant, it was because their testimonies were not favorable to
the latter; as evidenced by the testimony of said Magalit, the other witness subpoenaed for the defense, who was
used by the prosecution as a rebuttal witness and testified against the accused.
Sections 1 and 7, Rule 108, of the Rules of Court use the words "preliminary investigation," but a cursory
reading thereof would clearly show that the investigation mentioned therein is not the preliminary investigation
proper in which the defendant has the right to present his evidence. That is the reason why said investigation
made for the purpose of issuing the warrant of arrest of a defendant if it appears that his arrest is justified, is
(4) The fourth or last assignment of error, is also without merit. Because the defendant, testifying in his own
behalf, admitted having killed Paciano de los Santos on the date and in the form and manner testified to by the
witnesses for the prosecution, and the only defense that he executed or killed the deceased in obedience to an
order given him by Japanese officers of the navy, by whom he was informed that the deceased was one of those
70
who were encountered by the Japanese in a mountain and wounded a Japanese soldier, is not supported by any
evidence in the record. And because assuming that there was such an order, It would not justify the crime
committed by defendant and exempt him from criminal liability.
That there was no such order, oral or written is clearly shown by the defendant's own incredible, contradictory
and unsupported testimony relating it his having ordered by the Japanese naval officer to kill the deceased
which reads as follows:
"P. Y cual era el objeto de Vd. al notificar a los oficiales y empleados de la Colonia Penal de San Ramon para el
que estuviera presente al tiempo de la ejecucion de Paciano de los Santos?
R. Para que durante la maana cuando me estaban dando ordenes de que yo ejucute esa orden de matar a
Paciano de los Santos que ellos esten presentes, porque yo estuve discutiendo con el Capitan Suusuki, yo les
dije que no podia hacerlo.
"P. Por que?

"P. Declarando aqui los testigos de la acusacion todos dijeron de que ejecucion de aquel Paciano de los Santos
era por orden de Vd., es cierto eso?
R. No, seor.
"P Tambien declararon aqui de que Vd. habia ordenad a un tal Magalit, su assistant para que notificara al jefe y
a los empleados de la Colonia de San Ramon para que estuviera presente en el dia y hora de ejecucion de
Paciano de los Santos, es cierto esto?
R. Por que ellos insistian, y yo les dije que realmente no podia hacerlo, pero entonces ellos me dijeron, "Tienes
que obeddecer porque esa orden de Major Susuki tienes que cumplir, de lo contrario tienes que venir con
nosotros.
"P. Que mas?
R. Asi pues, era la orden de Major Sasaki.
R. Eso era el diciembre 1..
"P. Que mas?
"P. Si?
R. Y como yo no podia esquivarme de la orden que ellos me daban, yo les pedi que si voy a hacer la ejecucion
ellos tienen que presenciar tambien para que ellos vean que yo lo hago contra mi propia voluntad. Entonces, el
Capital Susuki me dijo que ellos no podian estar presentes porque tenian que volver aquel mismo dia a
Zamboanga." (Pp. 48, 49, t. s. n.)
R. Cuando el Capitan Susuki y el Commander Tanigawa se fueron a mi oficina me ordeno para que ejecutara a
Paciano de los Santos.
"Juzgado:
71
P. Aquel supuesto orden que recibio Vd. de los oficiales del navy para la ejecucion de Paciano de los Santos
dada a Vd. por escrito o verbalmente?
"Q. And this particular order you said that was given to you by Major Sasaki was also delivered to your record
clerk Mr. Magalit?
R. Una carta del Commander Tanigawa llevada alli a mi oficina y la orden fue firmada por el Major Sasaki.
A. Si, seor, yo le he dado para que ponga al file de cartas recibidas." (Pp. 58, 59, t.s.n.)
"P. Aquella carta estaba dirigida a Vd?
The above-quoted appellant's testimony is unsupported. And it is not only unsupported, but contradicted by the
witness for the prosecution whose testimony about the order of the appellant to witness the beheading of the
victim we have already stated above, and by Gregorio Magalit who testified that he had not received or seen the
alleged written order of Major Sasaki.
R. Si, seor.
"P. Y tiene Vd. en su poder esa carta?
R. Tenia todo eso en el record alli en San Ramon pero no se ahora no se puede encontrar.
"FISCAL ATILANO.
Q. You had office in San Ramon, as you say?
A. Yes, sir.
"Q. You had also a record clerk who kept all your papers?
It is also incredible and contradictory as a cursory reading of the above would show. The appellant testified that
he ordered them to witness the execution of Paciano de los Santos, so that "during the morning when they will
give me orders to execute the mandate to kill Paciano de los Santos, they be present" (emphasis supplied); but
in the same breath he added: "as I could not refuse to comply with their order, I asked that if I had to execute it,
they should also be present so that they would see that I do against my will. The Captain Susuki told me that
they could not be present because they had to return that same day to Zamboanga." (P. 49, t. s. n.) Upon being
pressed to explain how could the mere act of his beheading Paciano de los Santos inform those present that he
(the defendant) had acted against the order of the Japanese authorities, he tried to give an explanation that does
not explain by saying that, on the night previous to the execution, He informed the officers and employees of
San Ramon Penal Colony, gathered by his order in the house of Mr. Dellosa, "that he had been ordered by
Major Sasaki to kill Paciano de los Santos, and asked their opinion about it." This explanation does not explain,
because, aside from being contradicted by the witnesses for the prosecution (p. 68, t. s. n.), if it were true that he
had already in formed them about it, why did he still require them to be present at the execution of Paciano de
los Santos, specially when, according to his own testimony, the Japanese officers who gave him the order could
not be present because they had to return the same day to Zamboanga?
But assuming that such an order was really given by Major Sasaki, it could not exempt the defendant from
criminal liability, either under subsection 6, article 11, or subsections 5 and 6, article 12, of the Revised Penal
Code.
A. Yes, sir.
72
Not under subsection 6 of article 11, because, in killing the deceased, the defendant has not acted in obedience
to an order issued by a superior for some lawful purpose. The alleged order was not for lawful purpose, because
the deceased was to be killed without any previous trial or hearing, and Commander Sasaki has no authority to
give or issue such an order. This court, in the case of United States vs. Garcia (5 Phil., 58), held that it is not a
defense to a charge of homicide that it was committed under an illegal order of an officer of the United States
Army.
And not under subsections 5 and 6, article 12, of the same Revised Penal Code, which exempt from criminal
liability any person "who acts under the compulsion of an irresistible force," or "who acts under the impulse of
an uncontrollable fear of an equal or greater injury." Because it is plain that there was no compulsion of an
irresistible force that compelled the defendant to kill the victim against his will; nor was there any threat of such
a serious character and imminence as to create in the mind of the defendant an uncontrollable fear that an equal
or greater evil or injury would be inflicted upon him if he did not comply with the alleged order to kill the
deceased. The only part of the defendant's testimony relating to a sort of a threat is the following: "As they
insisted and I informed them that I could not do it, then Capitan Susuki told me: You have to comply with that
order of Major Sasaki; otherwise you have to come along with us." It is evident that the mere alleged statement
of said Susuki that if the accused did not comply with the order, he had to come along with them, is not such a
threat as contemplated by said provision of the Revised Penal Code; especially, taking into consideration that
the defendant himself declared that the captain told him "that they could not be present (at the execution of the
deceased) because they had to return that same day to Zamboanga." (P. 49, t. s. n.)
At the oral argument, the appellant's attorney invited the attention of this court to a letter received by him from
the defendant Moreno, where it is stated, among other things, that his attorney de oficio in the court below, Atty.
Timoteo de los Santos, was a relative (kamaganak) of the deceased Paciano de los Santos, and this court ordered
that said letter be attached to the record. Later on, the Solicitor General presented to this court the affidavits of
Timoteo de los Santos and Maximo de los Santos, attorney in the lower court and brother respectively, of the
deceased Paciano de los Santos, in which the affiants declare that the victim was not related at all to said
Timoteo de los Santos.
Although the attorney for the appellant in this court did not impugn in his brief the manner of conducting the
defense by the attorney de oficio for the defendant in the court below, in his memorandum of authorities
submitted after the oral argument he states that the letter above referred to corroborates in part the statement of
Attorney De los Santos appearing in the stenographic transcript when he said, among other things, "Por encima
de mi circunstancia personal y de mi opinion personal entre el acusado, me veo ahora obligado a aceptar el
nombramiento y defender al acusado." In view of the fact that the appellant is charged with a capital offense and
the penalty imposed upon him by the court below is death, we suggested, during and after the hearing of the
case on appeal, that the appellant's attorney file a formal motion for a new trial accompanied by evidence or
affidavit of merits of witnesses who could support the appellant's defense of having acted in obedience to a
lawful order, so as to have some legal ground to grant a new trial and thus give the appellant additional
opportunity to substantiate his defense.
We can not find a legal way of remanding this case to the lower court for a new trial. In the first place, because
from the fact that about eight's having already elapsed since the oral argument or hearing of this case, and not
oral motion for a new trial has been filed as suggested, it may be inferred that the appellant has no other
evidence to support his defense; and because after examining carefully the conduct of the proceedings in the
trial court by the attorney de oficiofor defendant, we have come to the conclusion that, through said attorney
was somewhat reluctant at first to act as attorney de oficio for the defendant, he accepted the appointment
although his personal opinion is against the defendant, and performed faithfully his duties as such. Atty.
Timoteo de los Santos did not cross-examine the rebuttal witness Magalit, whose testimony was limited to deny
having received or seen any order by Major Sasaki commanding the appellant to execute Paciano de los Santos,
for it would have been useless to cross-examine him on that point. He did not cross-examine the witness
Carmona because he merely denied the testimony of the defendant that, during the meeting in the house of
Dellosa, he told the officials and employees of the San Ramon Penal Colony gathered there that he did not like
to execute Paciano de los Santos, Faustino Triplett, Rosa Orquijo and Pedro Herrera, who testified that in the
arrest of civilians by the defendant the latter was not being accompanied by a Japanese, for whether or not be
was accompanied by a Japanese was not material to the present case.
In view of all the foregoing, we hold that t e Judgment of the lower court that finds the defendant guilty of the
crime of murder with the aggravating circumstances of premeditation and cruelty and sentences him to death, is
in conformity with the facts and law, and should therefore be affirmed with costs against the appellant. But in
view of the fact that one of the Justices dissents from this decision, the appellant should, according to section
133 of Commonwealth Act No. 3, as amended by Executive Order No. 86 of the President of the Philippines
dated January 7, 1946, suffer the penalty of reclusion perpetua instead of death. So ordered.
Moran, C.J., Paras, Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
73
Moran, C.J., I certify that Mr. Justice Hilado concurred in this decision.
On 31 July 2001, an Information 5 was filed before the RTC charging petitioner, Marksale Bacus (Bacus),
Kevin Boniao (Boniao) and Emiliano Handoc (Handoc) with robbery, thus:
||| (People v. Moreno, G.R. No. L-64, [October 28, 1946], 77 PHIL 548-569)
THIRD DIVISION
That on July 28, 2001, at about 8:00 o'clock in the morning, in the City of Ozamiz, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent of gain, did then and there helping
one another, willfully, unlawfully, and feloniously break, destroy, and destroyed the padlock of the main door of
the classroom of MS. SELINA M. PANAL and once inside, the accused took, stole and carried away the
following:
[G.R. No. 173876. June 27, 2008.]
A. One (1) Panasonic Colored TV 14 worth P6,000.00;
VALCESAR ESTIOCA y MACAMAY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
B. One (1) Sharp Karaoke Tower Single Player color black worth P6,000.00; and
DECISION
C. One (1) 3D Rota Aire Stand Fan color brown worth P3,000.00;
CHICO-NAZARIO, J p:
belonging to the Ozamiz City Central School represented herein by MS. SELINA M. PANAL, all valued at
P15,000.00, to the damage and prejudice of the said school thereof, in the aforementioned sum of P15,000.00,
Philippine Currency. HDATCc
In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, 1 petitioner Valcesar Estioca y
Macamay prays for the reversal of the Decision 2 of the Court of Appeals in CA-G.R. CR No. 00036 dated 30
June 2006, affirming with modification the Decision 3 and Order 4 dated 5 April 2004 and 17 August 2004,
respectively, of the Ozamiz City Regional Trial Court (RTC), Branch 35, in Criminal Case No. 3054, finding
him guilty of robbery under Article 299, subdivision (a), number (2) of the Revised Penal Code. EHaCTA
Culled from the records are the following facts:
When arraigned on separate dates with the assistance of their counsels de oficio, petitioner, Bacus, Boniao and
Handoc pleaded "Not guilty" to the charge. 6 Thereafter, trial on the merits ensued.
The prosecution presented as witnesses Nico Alforque (Nico) and Mrs. Celina M. Panal (Mrs. Panal). Their
testimonies, woven together, bear the following:
74
On 28 July 2001 (Saturday), at about 8:00 in the morning, Nico, then eleven years old and a Grade VI student of
Ozamiz City Central School (OCCS), and his cousin, Mark Alforque (Mark), went to the OCCS and cleaned the
classroom of a teacher named Mrs. Myrna Pactolin (Mrs. Pactolin). They received P30.00 each from Mrs.
Pactolin for the chore. Afterwards, Mark went home while Nico stayed inside the OCCS because Mrs. Pactolin
requested him to get some "waya-waya" and "dapna" inside the OCCS's canal to be used as fish food. 7
While catching waya-waya and dapna inside the OCCS's canal, Nico saw petitioner and Bacus enter the OCCS's
premises by climbing over the OCCS's gate. Petitioner and Bacus then proceeded to the classroom of another
teacher, Mrs. Panal, which was located near the OCCS's canal. Thereupon, petitioner and Bacus destroyed the
padlock of the classroom's door using an iron bar and entered therein. Subsequently, petitioner and Bacus
walked out of the classroom carrying a television, a karaoke and an electric fan, and thereafter brought them to
the school gate. They went over the gate with the items and handed them over to Boniao and Handoc who were
positioned just outside the OCCS's gate. The items were placed inside a tricycle. After petitioner, Bacus and
Boniao boarded the tricycle, Handoc drove the same and they sped away. 8 CaDSHE
On the following day, 29 July 2001, Mrs. Panal went to the OCCS for a dance practice with her students. She
proceeded to her classroom and discovered that it was forcibly opened, and that the karaoke, television and
electric fan therein were missing. She immediately reported the incident to the police. The OCCS principal
informed her that Nico witnessed the incident. Thereafter, petitioner, Bacus, Boniao and Handoc were charged
with robbery. 9
The prosecution also submitted object evidence to buttress the testimonies of its witnesses, to wit: (1) a Tshaped slightly curved iron bar, which is 10 mm. by 12 inches in size, used in destroying the padlock of Mrs.
Panal's classroom and marked as Exhibit A; and (2) a Yeti brand, colored yellow, padlock used in Mrs. Panal's
classroom, marked as Exhibit B.
For its part, the defense presented the testimonies of petitioner, Bacus, Rolly Agapay (Agapay), Boniao and
Handoc to refute the foregoing accusations. Petitioner and his co-accused denied any involvement in the
incident and interposed the defense of alibi.
Petitioner Estioca testified that on 28 July 2001, he cleaned his house located at Laurel Street, Ozamiz City,
from 8:00 in the morning up to 10:00 in the morning. After cleaning the house, he ate lunch and rested. At
around 3:00 in the afternoon of the same day, he went to the house of his neighbor/friend, Junjun Ho (Junjun),
to help the latter in cleaning his houseyard. However, Junjun's father arrived, and since the father and son had to
discuss important things, he decided to go home which was about past 3:00 in the afternoon. Upon arriving
home, his aunt, Myrna Macamay, told him that some people had gone to the house looking for him. Later, two
unidentified persons, accompanied by Boniao, came to his house and brought him to the City Hall Police
Station for investigation as regards the incident. 10 IDSaAH
During the interrogation inside the police station, a certain Michael approached him and inquired as to where he
sold the television stolen from the OCCS. He told Michael not to accuse him of stealing as it is not a good joke.
Michael called Bacus and Boniao who were then standing nearby, and the two pointed to him as the one who
sold the television. Afterwards, one of the police officers therein told him to approach a certain Colonel Bation
who was also inside the police station. Upon approaching Colonel Bation, the latter punched him in the stomach
causing him to kneel down in pain. Colonel Bation asked him where he sold the television but he told him he
had nothing to do with it. Colonel Bation took a whip and smacked him with it several times on the body. An
emergency hospital worker named Dennis Fuentes, who was also present, stripped him naked and burned his
scrotum, chest and palm with lighter, cigarette butts and matchsticks. Thereafter, he was jailed. 11
Bacus, a resident of Barangay Lam-an, Ozamiz City, declared that on the night of 27 July 2001, he slept at the
guardhouse of the Ozamiz City National High School (OCNHS) which is located in front of the OCCS. On the
following day, 28 July 2001, at about 7:00 in the morning, he woke up and helped his mother in selling bananas
beside their house which is situated in front of the OCNHS. At about 11:00 in the morning of the same day,
while on his way to Barangay Tinago, Ozamiz City, to buy chicken feed, a certain Michael Panal and an
unidentified companion blocked his path and asked him if he was the one who robbed the OCCS. He told the
two that he had nothing to do with the incident. The two then brought him to the nearby seashore where they
were met by a group of persons headed by a certain Maning. Thereupon, they tortured and beat him for refusing
to admit involvement in the incident. Subsequently, he was taken to the Ozamiz City Hall for investigation. 12
CIScaA
Agapay, an OCNHS working student and a resident of the said school, narrated that he knows Bacus because
the latter resided in a house located just in front of the OCNHS; that he and Bacus usually slept at the
guardhouse of the OCNHS; that on the night of 27 July 2001, he and Bacus slept at the guardhouse of the
OCNHS; and that Bacus woke up on the following day, 28 July 2001, at about 8:30 in the morning. 13
75
Boniao, 14 years old and resident of Barangay Tinago, Ozamiz City, testified that on 28 July 2001, at 8:00 in the
morning, he cleaned his parents' house and thereafter watched television. On 30 July 2001, at 7:00 in the
morning, he and Bacus went to the OCCS to pick up plastic bottles scattered therein. After gathering some
plastic bottles, he and Bacus left the OCCS. While on their way home, a certain Leoncio apprehended him and
brought him to his parents' house. Upon arriving home, his mother beat him and forbade him to go out of the
house. Subsequently, several persons went to his parents' house and arrested him. He was taken to a nearby port
where he was asked to identify the persons involved in the robbery of the OCCS. When he could not say
anything about the incident, he was brought to the City Hall Police Station where he was jailed. 14
Handoc, a pedicab driver residing at Barangay Tinago, Ozamiz City, stated that he helped his brother-in-law in
quarrying gravel at Panay-ay Diot, Clarin, Misamis Occidental, on the whole morning of 28 July 2001; that he
went back to Barangay Tinago, Ozamiz City, at about 4:00 in the afternoon of 28 July 2001; that Tomas
Medina, the former barangay captain, arrested him and took him to the City Hall; that police officers in the City
Hall inquired as to where he sold the television stolen from the OCCS but he replied that he had nothing to do
with it; that he was repeatedly beaten by police officers for denying any involvement in the incident; and that he
was detained at the City Hall Jail. 15 DHEACI
After trial, the RTC rendered a Decision on 5 April 2004 convicting petitioner, Bacus, Boniao and Handoc of
robbery under Article 299, subdivision (a), number (2), paragraph 4 of the Revised Penal Code. The trial court
imposed on petitioner, Bacus and Handoc an indeterminate penalty ranging from six years and one day of
prision mayor as minimum, to fourteen years, eight months and one day of reclusion temporal as maximum.
Since Boniao was a minor (14 years old) when he participated in the heist, he was sentenced to a lower prison
term of six months of arresto mayor as minimum to four years and two months of prision correccional as
maximum. They were also ordered to pay P15,000.00 as civil liability. Nonetheless, the sentence meted out to
Boniao was suspended and his commitment to the Department of Social Welfare and Development (DSWD)
was ordered pursuant to Presidential Decree No. 603. 16 The dispositive portion of the decision reads:
WHEREFORE, finding accused Valcesar Estioca y Macamay alias "Bango", Marksale Bacus alias "Macoy",
Emeliano Handoc y Bullares alias "Eming" and minor Kevin Boniao guilty beyond reasonable doubt of the
crime of robbery defined and penalized under Article 299, subsection (a), paragraph 2 of the Revised Penal
Code and upon applying Art. 64, paragraph 1 of the Revised Penal Code and Indeterminate Sentence Law and
Privileged Mitigating Circumstance of two (2) degrees lower than that prescribed for by law (Art. 68, par. 1)
unto Kevin Boniao, a minor, who was 14 years old at the time of the commission of the crime, this court hereby
sentences them (a) Valcesar Estioca, Marksale Bacus, Emeliano Handoc to suffer the indeterminate penalty
ranging from six (6) years and one (1) day of Prision Mayor as minimum to fourteen (14) years, eight (8)
months and one (1) day of Reclusion Temporal as maximum and (b) Kevin Boniao (minor) to suffer the penalty
of six (6) months of Arresto Mayor as minimum to four (4) years and two (2) months of Prision Correccional
as maximum and all of the accused to suffer the accessory penalty provided for by law, to indemnify the civil
liability of P15,000.00 and to pay the costs. prcd
With respect to Kevin Boniao, the sentence imposed upon him is hereby suspended pursuant to P.D. 603 as
amended and he is therefore committed to the Department of Social Welfare and Development (DSWD) for
reformation, otherwise if he is incorrigible, then the sentence shall be imposed upon him by the court. The
DSWD is hereby ordered to have close surveillance and supervision upon him and to constantly observe the
development of his behavior and to submit to the court a report/recommendation on the matter as prescribed for
by law.
The Order of this court dated August 20, 2001 is hereby cancelled and revoked.
The accused are entitled 4/5 of the time they were placed under preventive imprisonment.
The cash bond in the amount of P24,000 posted by accused Valcesar Estioca is hereby cancelled and the same is
ordered released and returned to the bondsman concerned. 17
Petitioner, Bacus, Boniao and Handoc filed a Motion for Reconsideration of the RTC Decision arguing that
there was no conspiracy among them and that the penalty imposed was erroneous. 18 On 17 August 2004, the
RTC issued an Order partially granting the motion. 19 The trial court lowered the penalty imposed on them but
affirmed its earlier finding of conspiracy and conviction. It also ordered the DSWD to release and turn over
Boniao to his parents. It concluded: HISAET
76
xxx xxx xxx

WHEREFORE, as herein modified, the imposable indeterminate penalty meted to accused Valcesar Estioca,
Marksale Bacus and Emeliano Handoc being guilty beyond reasonable doubt of he crime of Robbery, defined
and penalized under paragraph 4 of Art. 299 of the Revised Penal Code upon applying Indeterminate Sentence
Law with paragraph 1 of Art. 64, Revised Penal Code, ranges from four (4) years, two (2) months and one (1)
day of prision correccional as minimum to eight (8) years and one (1) day of prision mayor as maximum with
accessory penalty provided for by law; and for minor accused Kevin Boniao, the penalty of four (4) months of
arresto mayor upon applying the privileged mitigating circumstance in Art. 68, paragraph 1 of the Revised Penal
Code with Art. 64, paragraph 1 of the same Code. All of the accused shall indemnify jointly the civil liability of
P15,000.00 and to pay the costs.
As aforestated, minor accuser Kevin Boniao is hereby ordered released from DSWD and returned to the custody
of his parents. 20
Unsatisfied, petitioner appealed the RTC Decision and Order before the Court of Appeals. 21 Bacus, Boniao
and Handoc did not appeal their conviction anymore. On 30 June 2006, the Court of Appeals promulgated its
Decision affirming with modification the RTC Decision and Order. The appellate court held that Boniao is
exempt from criminal liability but his civil liability remains pursuant to Republic Act No. 9344 otherwise
known as The Juvenile Justice and Welfare Act of 2006, thus:
On a final note, considering that it is axiomatic that an appeal opens the entire case for review and considering
further that any decision rendered in the appeal does not bind those who did not appeal except if beneficial to
them, We hold that herein accused Kevin Boniao should be acquitted and his criminal liability extinguished
pursuant to Republic Act No. 9344, otherwise known as the Juvenile Justice and Welfare Act of 2006, which
took effect on May 22, 2006. The pertinent provision thereof provides, thus: cHDaEI
"Sec. 6. Minimum Age of Criminal Responsibility. A child fifteen (15) years of age or under at the time of
the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to
Section 20 of this Act.
The exemption from criminal liability herein established does not include exemption from civil liability, which
shall be enforced in accordance with existing laws."
WHEREFORE, premises foregoing, the appeal is hereby DISMISSED and the assailed Decision and the August
17, 2004 Order are hereby AFFIRMED subject to the modification that accused KEVIN BONIAO is hereby
ACQUITTED of the crime charged pursuant to Section 6 of R.A. No. 9344, without prejudice to his civil
liability. 22
On 21 August 2006, petitioner filed the instant petition on the following grounds: aETADI
I.
WHETHER OR NOT UNDER THE FACTS AND CIRCUMSTANCES OF THE ALLEGED ROBBERY
WHICH HAPPENED ON BROAD DAY LIGHT AND IN THE PRESENCE OF ALLEGED TWO (2)
EYEWITNESSES UNDER HUMAN EXPERIENCE CAN POSSIBLY BE PERPETUATED BY THE
ACCUSED;
II.
WHETHER OR NOT ALLEGED LONE WITNESS NICO ALFORQUE COULD HAVE POSSIBLY
WITNESS[ED] THE ALLEGED ROBBERY INCIDENT. 23
Simply put, the Court is called upon to determine whether the testimony of Nico is credible given the
surrounding circumstances of the incident.
77
Q: What particular school are you referring to?

Petitioner maintains that the testimony of Nico regarding the fact that the robbery was committed in broad
daylight (8:00 in the morning) and in full view of Nico is against human nature. He asserts that no person would
dare commit robbery in broad daylight and in the presence of other people because they would be easily
identified. 24
A: At Ozamis Central School, sir.
Q: Would you be able to tell us the name of the teacher of that particular classroom you were cleaning?
Petitioner further claims that it was impossible for Nico to see petitioner and Bacus destroy the door of Mrs.
Panal's classroom because, according to Nico's own Affidavit, Nico was inside the classroom of Mrs. Pactolin
during the incident. He insists that the walls of Mrs. Pactolin's classroom prevented Nico from witnessing the
incident. 25
In resolving issues pertaining to the credibility of the witnesses, this Court is guided by the following wellsettled principles: (1) the reviewing court will not disturb the findings of the lower court, unless there is a
showing that it overlooked, misunderstood or misapplied some fact or circumstance of weight and substance
that may affect the result of the case; (2) the findings of the trial court on the credibility of witnesses are entitled
to great respect and even finality, as it had the opportunity to examine their demeanor when they testified on the
witness stand; and (3) a witness who testifies in a clear, positive and convincing manner is a credible witness.
26 aAIcEH
A: The classroom of Mrs. Pactolin, sir.
Q: Why did you clean the classroom of Mrs. Pactolin, were you being paid?
A: Yes sir.
Q: How much?
After carefully reviewing the evidence on record and applying the foregoing parameters to this case, we find no
cogent reason to overturn the factual finding of the RTC that Nico's testimony is credible. As an eyewitness to
the incident, Nico positively identified petitioner, Bacus, Boniao and Handoc as those who robbed the OCCS of
an electric fan, television and karaoke on the morning of 28 July 2001. His direct account of how petitioner,
Bacus, Boniao and Handoc helped one another in robbing the OCCS is candid and convincing, thus:
A: P30.00 sir.
Q: Now, on July 28, 2001 at about 8:00 o'clock in the morning, could you be kind enough to tell us where were
you at that time?
A: We were two sir.
Q: Were you alone in cleaning the classroom of Mrs. Pactolin at that time?
Q: Would you be kind enough to tell this honorable court who was your companion at that time?
A: We were cleaning the room of the school, sir.
78
A: My cousin Mark Alforque sir.
Q: Where were you at that time Mr. Nico Alforque?
Q: Now, after cleaning the classroom of Mrs. Pactolin together with Mark Alforque, what did you do next?
ASIETa
A: I was inside the school sir.
Q: What particular place are you referring?

A: My cousin went home and I was left in the classroom because I was requested by my teacher to get fish
food.
A: Near the canal sir.
Q: What fish food are you talking about Mr. Witness?
Q: And would you be able to tell us also how far were you when you saw these persons climbing the gate?
A: Wayawaya and Dapna sir.
A: I was a little bit farther sir. AaIDCS
Q: While getting the fishfood for your teacher, did you observed (sic) anything unusual that happened?
Q: After you saw the two persons climbing the gate, what happened after that?
A: Yes, sir.
A: I saw that the padlock was opened.
Q: Would you be kind enough to tell this Court now what did you observed (sic) that time when you were
getting the fishfood?
A: I saw somebody climbed the gate sir.
xxx xxx xxx
Q: What particular padlock are you referring to?
A: I saw a padlock made of iron.
Q: And what particular classroom or place were these persons you saw that they were opening the padlock?
79
A: The classroom of Mrs. Celina Panal sir.
We would like to request your honor that this iron bar be marked as our Exh. "A".
Q: Who is this Mrs. Celina Panal?
COURT:
Mark it.
A: A teacher sir.
TO WITNESS:
Q: Would you be able to tell us whose classroom these persons you saw opening the padlock?
Q: And what about the padlock, would you be able to identify the padlock that was used (sic) by these persons?
A: The classroom of Mrs. Panal sir.
A: Yes sir.
Q: Would you be able to tell us how did they opened (sic) the classroom of Mrs. Celina Panal?
Q: I am showing to you this padlock, would you kindly tell this Court what relation this padlock to the one you
stated a while ago?
A: The room was opened with the used (sic) of an iron bar sir.
A: That is the padlock used (sic) by them sir.
Q: I am showing to you this iron bar, what relation has this iron bar to the one you said a while ago? cHaDIA
TO COURT:
A: That is the one used by the persons to open the classroom sir.
For identification purposes your honor, May I respectfully request that this padlock be marked as Exh. "B".
ADCEcI
TO COURT:
COURT:
80
Mark it.
A: I saw that they brought out the colored TV, the Karaoke and the Electric Fan.
TO WITNESS:
Q: You said that these persons after destroying the padlock, took the colored TV, the Karaoke and the Electric
Fan, where did they go?
Q: Now Mr. Nico Alforque, you said that there were two persons who opened the classroom of Mrs. Celina
Panal, would you kindly identify these persons if you can see them now in court?
A: After taking these things, they went out of the classroom sir.
A: Yes sir.
Q: And after going out of the classroom where did they go?
Q: Would you kindly point to them if they are now here in court?
A: They went to the gate sir.
The witness is pointing to a person whom when asked of his name declared that he is Valcesar Estioca.
Q: And at the gate, what did you observed (sic) if any?
A: And would you kindly tell us also the companion of Valcesar Estioca?
A: I saw that there was another person sir.
The witness is pointing to a person whose name is Marksale Bacus.
Q: And what was this person doing at the gate?
Q: These are the persons who destroyed the padlock of the classroom of Mrs. Celina Panal? SEHaTC
A: They passed on the things through the person at the gate sir.
A: Yes sir.
Q: To whom did these persons passed these things at the gate?
Q: After destroying the padlock Mr. Nico Alforque, what did you observed?
The witness is pointing to a man whose name is Kevin Boniao. CSTcEI
81
Q: What else did you observed (sic) at the gate?
A: I did not see anything because I went away sir.
A: I saw that there is another person.
Q: You mean to say that all those persons went away when you went away?
Q: Who was that person?
A: Yes sir.
The witness is pointing to accused Emeliano Handoc.
Q: They went together, is that what you mean?
Q: And what was Emeliano Handoc doing at the gate Mr. Nico Alforque?
A: Yes sir.
A: He was waiting at the gate sir.
Q: Are they walking or riding?
Q: Now after you saw these persons, what were the two accused doing at the gate when they passed the things
to Kevin Boniao?
A: They were riding in a tricycle sir.
COURT:
A: They were riding the tricycle sir.
Q: Whose tricycle?
Q: Could you be able to tell us who was driving the tricycle?
The witness is pointing to Emeliano Handoc. 27
The witness is pointing to Emeliano Handoc. ESAHca
Mrs. Panal corroborated the foregoing testimony of Nico on relevant points. 28 TCHcAE
Q: And after seeing these persons what did you observed (sic) after that?
82
The foregoing testimonies are consistent with the object evidence submitted by the prosecution. The RTC and
the Court of Appeals found the testimonies of Nico and Mrs. Panal to be truthful and unequivocal and, as such,
prevailed over the denial and alibi of petitioner and his cohorts. Both courts also found no ill motive on the part
of Nico and Mrs. Panal.
Besides, as aptly observed by the Office of the Solicitor General, 33 it is not improbable for petitioner and his
cohorts to have committed the robbery as narrated by Nico because it happened on a Saturday, a non-school day
in the OCCS. Apparently, petitioner and his companions expected that none or only few persons would go to the
OCCS on said date. aESHDA
It is not incredible or against human nature for petitioner and his companions to have committed the robbery in
broad daylight and in full view of Nico. There is no standard behavior of criminals before, during and after the
commission of a crime. 29 Some may be so bold and daring in committing a crime in broad daylight and in full
view of other persons. Others may be so cunning such that they commit crime in the darkness of the night to
avoid detection and arrest by peace officers. 30
A perusal of the transcript of stenographic notes shows that Nico was in a canal located inside the OCCS
catching waya-waya and dapna when he saw the incident, and was not inside the enclosed classroom of Mrs.
Pactolin as alleged by petitioner. 34 Nico declared that he clearly saw the incident and that nothing blocked his
vision. 35 Nico remained steadfast and consistent in his foregoing testimony even on cross examination, thus:
In People v. Toledo, Sr., 31 we sustained the credibility of the eyewitness and upheld the conviction of the
accused for homicide despite the circumstances existing at the crime scene broad daylight, full view of many
persons inside the school compound, and presence of inhabited houses. It was also ruled that crimes may be
committed in broad daylight and that criminals are not expected to be logical or to act normally in executing
their felonious designs because committing a crime itself is not logical or reasonable, viz.: cTCADI
Appellant [accused] also asserts that the testimony of Ronnie [eyewitness] was inherently improbable. He
insists that the circumstances existing at the crime scene broad daylight, full view of many persons inside the
school compound, presence of inhabited houses around the purok were such that a crime could not be
committed.
For a number of reasons, we find no merit in this contention. First, appellant's premise that there were many
persons in the school compound is not supported by the evidence on record. Second, crimes are known to have
been committed in broad daylight within the vicinity of inhabited houses. Third, although it would be illogical
and unreasonable for normal persons in full control of their faculties to commit a crime under such
circumstances, the same does not hold true for all, especially those under the grip of criminal impulses. We
cannot expect the mind of such persons to work within the parameters of what is normal, logical or reasonable,
as the commission of a crime is not normal, logical or reasonable. Hence, the circumstances present in this case
do not rule out appellant's commission of the crime. 32
Q: From the place where you were gathering fishfood at that time you cannot clearly see the room of Mrs.
Panal, am I right?
A: I can see it clearly sir.
Q: You have not seen what were those persons doing inside the room of Mrs. Panal?
A: I saw them sir.
Q: You saw them taking away the Colored TV, Karaoke and the Electric Fan?
A: Yes sir.
Q: Who among them took with him the TV?
83
The witness is pointing to Valcesar Estioca.
A: Yes sir.
Q: Aside from the TV he also carry away with him the Electric Fan and Karaoke? DSAICa
Q: What about those two persons you saw entering the room of Mrs. Panal where did they go?
A: It was his companion sir.
A: They went out sir. 36
xxx xxx xxx
The alleged inconsistency between the affidavit of Nico and his court testimony is inconsequential.
Inconsistencies between the sworn statement or affidavit and direct testimony given in open court do not
necessarily discredit the witness since an affidavit, being taken ex parte, is oftentimes incomplete and is
generally regarded as inferior to the testimony of the witness in open court. Judicial notice can be taken of the
fact that testimonies given during trial are much more exact and elaborate than those stated in sworn statements,
usually being incomplete and inaccurate for a variety of reasons, at times because of partial and innocent
suggestions or for want of specific inquiries. Additionally, an extrajudicial statement or affidavit is generally not
prepared by the affiant himself but by another who uses his own language in writing the affiant's statement;
hence, omissions and misunderstandings by the writer are not infrequent. Indeed, the prosecution witnesses'
direct and categorical declarations on the witness stand are superior to their extrajudicial statements. 37 AHSaTI
Q: Now at the gate you saw how many persons aside from that two who entered the room of Mrs. Panal?
A: I saw three persons sir.
Q: Was these three persons outside the gate or inside the gate?
A: They were inside the gate sir.
Since we find no error in the factual finding of the RTC, as affirmed by the Court of Appeals, that the testimony
of eyewitness Nico is credible, then the judgment of conviction against petitioner, Bacus, Boniao, and Handoc
should be affirmed. The positive and credible testimony of a lone eyewitness, such as Nico, is sufficient to
support a conviction. 38
Q: And that was the time you saw the TV, Karaoke and Electric Fan turned over to those persons at the gate?
We shall now determine the propriety of the penalties imposed on petitioner, Bacus, Boniao and Handoc.
A: Yes sir.
Q: After that, those three persons left the place?
Article 299, subdivision (a), number (2), paragraph 4 of the Revised Penal Code provides that the penalty for
robbery with use of force upon things where the value of the property taken exceeds P250.00 and the offender
does not carry arms, as in this case, is prision mayor. Since no aggravating or mitigating circumstance was
alleged and proven in this case, the penalty becomes prision mayor in its medium period in accordance with
84
Article 64, paragraph 1 of the Revised Penal Code. Applying the Indeterminate Sentence Law, the range of the
penalty now is prision correccional in any of its periods as minimum to prision mayor medium as its maximum.
Thus, the RTC and the Court of Appeals were correct in imposing on petitioner, Bacus and Handoc, a prison
term of four years, two months, and one day of prision correccional as minimum, to eight years and one day of
prision mayor as maximum, because it is within the aforesaid range of penalty. HIcTDE
With regard to Boniao, who was a minor (14 years old) at the time he committed the robbery, Article 68,
paragraph 1 of the Revised Penal Code instructs that the penalty imposable on him, which is prision mayor,
shall be lowered by two degrees. The RTC, therefore, acted accordingly in sentencing him to four months of
arresto mayor.
Nonetheless, as correctly ruled by the Court of Appeals, Boniao, who was barely 14 years of age at the time he
committed the crime, should be exempt from criminal liability and should be released to the custody of his
parents or guardian pursuant to Sections 6 and 20 of Republic Act No. 9344, otherwise known as The Juvenile
Justice and Welfare Act of 2006, to wit:
SEC. 6. Minimum Age of Criminal Responsibility. A child fifteen years of age or under at the time of the
commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an
intervention program pursuant to Section 20 of this Act.
Sec. 20. Children Below the Age of Criminal Responsibility. If it has been determined that the child taken
into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child has
the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof,
the child's nearest relative. Said authority shall give notice to the local social welfare and development officer
who will determine the appropriate programs in consultation with the child and to the person having custody
over the child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody,
the child may be released to any of the following: a duly registered nongovernmental or religious organization;
a barangay official or a member of the Barangay Council for the Protection of Children (BCPC); a local social
welfare and development officer; or, when and where appropriate, the DSWD. If the child referred to herein has
been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his
parents, or in the event that the parents will not comply with the prevention program, the proper petition for
involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office
pursuant to Presidential Decree No. 603, otherwise known as "The Child and Youth Welfare Code". SCIcTD
Although the crime was committed on 28 July 2001 and Republic Act No. 9344 took effect only on 20 May
2006, the said law should be given retroactive effect in favor of Boniao who was not shown to be a habitual
criminal. 39 This is based on Article 22 of the Revised Penal Code which provides:
Retroactive effect of penal laws. Penal laws shall have a retroactive effect insofar as they favor the person
guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code,
although at the time of the publication of such laws a final sentence has been pronounced and the convict is
serving the same.
xxx xxx xxx
However, as Boniao's civil liability is not extinguished pursuant to the second paragraph of Section 6, Republic
Act No. 9344, Boniao should be held jointly liable with petitioner, Bacus, and Handoc for the payment of civil
liability in the amount of P15,000.00 representing the stolen items.
shall be enforced in accordance with existing laws.
WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Decision of the Court of Appeals
dated 30 June 2006 in CA-G.R. CR No. 00036 is AFFIRMED in toto. Costs against petitioner. ACcEHI
SO ORDERED.
85
||| (Estioca y Macamay v. People, G.R. No. 173876, [June 27, 2008], 578 PHIL 853-875)
Petitioner, then about 14 years old, 5 was charged with the crime of Rape in two separate informations both
dated April 20, 1998, for allegedly raping AAA, 6 then about eight (8) years of age. The accusatory portions
thereof respectively state:
Criminal Case No. 98-19083
THIRD DIVISION
[G.R. No. 151085. August 20, 2008.]
That sometime in August, 1996, in the Municipality of XXX, Province of YYY, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation,
did then and there, (sic) willfully, unlawfully and feloniously (sic) had carnal knowledge of and/or sexual
intercourse with the said AAA, a minor, then about 6 years old, against her will. DHIETc
JOEMAR ORTEGA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
CONTRARY TO LAW. 7
DECISION
Criminal Case No. 98-19084
NACHURA, J p:
That on or about the 1st day of December, 1996, in the Municipality of XXX, Province of YYY, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and
intimidation, did then and there, (sic) willfully, unlawfully and feloniously (sic) had carnal knowledge of and/or
sexual intercourse with the said AAA, a minor, then about 6 years old, against her will.
Before this Court is a Petition 1 for Review on Certiorari under Rule 45 of the Rules of Civil Procedure seeking
the reversal of the Court of Appeals (CA) Decision 2 dated October 26, 2000 which affirmed in toto the
Decision 3 of the Regional Trial Court (RTC) of Bacolod City, Branch 50, dated May 13, 1999, convicting
petitioner Joemar Ortega 4 (petitioner) of the crime of Rape. SCaEcD
The Facts
CONTRARY TO LAW. 8
Upon arraignment on September 10, 1998, petitioner pleaded not guilty to the offense charged. 9 Thus, trial on
the merits ensued. In the course of the trial, two varying versions arose. cEAaIS
Version of the Prosecution
86
On February 27, 1990, AAA was born to spouses FFF and MMM. 10 Among her siblings CCC, BBB, DDD,
EEE and GGG, AAA is the only girl in the family. Before these disturbing events, AAA's family members were
close friends of petitioner's family, aside from the fact that they were good neighbors. However, BBB caught
petitioner raping his younger sister AAA inside their own home. BBB then informed their mother MMM who in
turn asked AAA. 11 There, AAA confessed that petitioner raped her three (3) times on three (3) different
occasions.
The first occasion happened sometime in August 1996. MMM left her daughter AAA, then 6 years old and son
BBB, then 10 years old, in the care of Luzviminda Ortega 12 (Luzviminda), mother of petitioner, for two (2)
nights because MMM had to stay in a hospital to attend to her other son who was sick. 13 During the first night
at petitioner's residence, petitioner entered the room where AAA slept together with Luzviminda and her
daughter. Petitioner woke AAA up and led her to the sala. There petitioner raped AAA. The second occasion
occurred the following day, again at the petitioner's residence. Observing that nobody was around, petitioner
brought AAA to their comfort room and raped her there. AAA testified that petitioner inserted his penis into her
vagina and she felt pain. In all of these instances, petitioner warned AAA not to tell her parents, otherwise, he
would spank her. 14 AAA did not tell her parents about her ordeal. SHAcID
The third and last occasion happened in the evening of December 1, 1996. Petitioner went to the house of AAA
and joined her and her siblings in watching a battery-powered television. At that time, Luzviminda was
conversing with MMM. While AAA's siblings were busy watching, petitioner called AAA to come to the room
of CCC and BBB. AAA obeyed. While inside the said room which was lighted by a kerosene lamp, petitioner
pulled AAA behind the door, removed his pants and brief, removed AAA's shorts and panty, and in a standing
position inserted his penis into the vagina of AAA. 15 AAA described petitioner's penis as about five (5) inches
long and the size of two (2) ballpens. She, likewise, narrated that she saw pubic hair on the base of his penis. 16
This last incident was corroborated by BBB in his testimony. When BBB was about to drink water in their
kitchen, as he was passing by his room, BBB was shocked to see petitioner and AAA both naked from their
waist down in the act of sexual intercourse. BBB saw petitioner holding AAA and making a pumping motion.
Immediately, BBB told petitioner to stop; the latter, in turn, hurriedly left. Thereafter, BBB reported the incident
to his mother, MMM. 17
MMM testified that when she asked AAA about what BBB saw, AAA told her that petitioner inserted his fingers
and his penis into her vagina. MMM learned that this was not the only incident that petitioner molested AAA as
there were two previous occasions. MMM also learned that AAA did not report her ordeal to them out of fear
that petitioner would spank her. MMM testified that when BBB reported the matter to her, petitioner and
Luzviminda already left her house. After waiting for AAA's brothers to go to sleep, MMM, with a heavy heart,
examined AAA's vagina and she noticed that the same was reddish and a whitish fluid was coming out from it.
Spouses FFF and MMM were not able to sleep that night. The following morning, at about four o'clock, MMM
called Luzviminda and petitioner to come to their house. MMM confronted Luzviminda about what petitioner
did to her daughter, and consequently, she demanded that AAA should be brought to a doctor for examination.
18
MMM, together with Luzviminda, brought AAA to Dr. Lucifree Katalbas 19 (Dr. Katalbas), the Rural Health
Officer of the locality who examined AAA and found no indication that she was molested. 20 Refusing to
accept such findings, on December 12, 1996, MMM went to Dr. Joy Ann Jocson (Dr. Jocson), Medical Officer
IV of the Bacolod City Health Office. Dr. Jocson made an unofficial written report 21 showing that there were
"abrasions on both right and left of the labia minora and a small laceration at the posterior fourchette". She also
found that the minor injuries she saw on AAA's genitals were relatively fresh; and that such abrasions were
superficial and could disappear after a period of 3 to 4 days. Dr. Jocson, however, indicated in her certification
that her findings required the confirmation of the Municipal Health Officer of the locality. TIDaCE
Subsequently, an amicable settlement 22 was reached between the two families through the DAWN Foundation,
an organization that helps abused women and children. Part of the settlement required petitioner to depart from
their house to avoid contact with AAA. 23 As such, petitioner stayed with a certain priest in the locality.
However, a few months later, petitioner went home for brief visits and in order to bring his dirty clothes for
laundry. At the sight of petitioner, AAA's father FFF was infuriated and confrontations occurred. At this
instance, AAA's parents went to the National Bureau of Investigation (NBI) which assisted them in filing the
three (3) counts of rape. However, the prosecutor's office only filed the two (2) instant cases.
Version of the Defense
Petitioner was born on August 8, 1983 to spouses Loreto (Loreto) and Luzviminda Ortega. 24 He is the second
child of three siblings an elder brother and a younger sister. Petitioner denied the accusations made against
him. He testified that: his parents and AAA's parents were good friends; when MMM left AAA and her brothers
87
to the care of his mother, petitioner slept in a separate room together with BBB and CCC while AAA slept
together with Luzviminda and his younger sister; he never touched or raped AAA or showed his private parts to
her; petitioner did not threaten AAA in any instance; he did not rape AAA in the former's comfort room, but he
merely accompanied and helped AAA clean up as she defecated and feared the toilet bowl; in the process of
washing, he may have accidentally touched AAA's anus; on December 1, 1996, petitioner together with his
parents, went to AAA's house; 25 they were dancing and playing together with all the other children at the time;
while they were dancing, petitioner hugged and lifted AAA up in a playful act, at the instance of which BBB ran
and reported the matter to MMM, who at the time was with Luzviminda, saying that petitioner and AAA were
having sexual intercourse; 26 petitioner explained to MMM that they were only playing, and that he could not
have done to AAA what he was accused of doing, as they were together with her brothers, and he treated AAA
like a younger sister; 27 BBB was lying; AAA's parents and his parents did not get angry at him nor did they
quarrel with each other; petitioner and his parents peacefully left AAA's house at about nine o'clock in the
evening; however, at about four o'clock in the morning, petitioner and his parents were summoned by MMM to
go to the latter's house; upon arriving there they saw BBB being maltreated by his father as AAA pointed to
BBB as the one who molested her; and MMM and Luzviminda agreed to bring AAA to a doctor for
examination. 28
Luzviminda corroborated the testimony of her son. She testified that: her son was a minor at the time of the
incident; CCC and BBB were the children of MMM in her first marriage, while AAA and the rest of her siblings
were of the second marriage; CCC and BBB are half-brothers of AAA; when MMM entrusted AAA and her
brothers to her sometime in August of 1996, she slept with AAA and her youngest daughter in a separate room
from petitioner; on December 1, 1996, she was at AAA's house watching television and conversing with MMM,
while FFF and Loreto were having a drinking spree in the kitchen; from where they were seated, she could
clearly see all the children, including petitioner and AAA, playing and dancing in the dining area; she did not
hear any unusual cry or noise at the time; while they were conversing, BBB came to MMM saying that
petitioner and AAA were having sexual intercourse; upon hearing such statement, Luzviminda and MMM
immediately stood up and looked for them, but both mothers did not find anything unusual as all the children
were playing and dancing in the dining area; Luzviminda and MMM just laughed at BBB's statement; the
parents of AAA, at that time, did not examine her in order to verify BBB's statement nor did they get angry at
petitioner or at them; and they peacefully left AAA's house. However, the following day, MMM woke
Luzviminda up, saying that FFF was spanking BBB with a belt as AAA was pointing to BBB nor to petitioner
as the one who molested her. At this instance, Luzviminda intervened, telling FFF not to spank BBB but instead,
to bring AAA to a doctor for examination. Luzviminda accompanied MMM to Dr. Katalbas who found no
indication that AAA was molested. She also accompanied her to Dr. Jocson. After getting the results of the
examination conducted by Dr. Jocson, they went to the police and at this instance only did Luzviminda learn
that MMM accused petitioner of raping AAA. Petitioner vehemently denied to Luzviminda that he raped AAA.
Thereafter, MMM and Luzviminda went to their employer who recommended that they should seek advice
from the Women's Center. At the said Center, both agreed on an amicable settlement wherein petitioner would
stay away from AAA. Thus, petitioner stayed with a certain priest in the locality for almost two (2) years. But
almost every Saturday, petitioner would come home to visit his parents and to bring his dirty clothes for
laundry. Every time petitioner came home, FFF bad-mouthed petitioner, calling him a rapist. Confrontations
occurred until an altercation erupted wherein FFF allegedly slapped Luzviminda. Subsequently, AAA's parents
filed the instant cases. 29
The RTC's Ruling
On May 13, 1999, the RTC held that petitioner's defenses of denial cannot prevail over the positive
identification of petitioner as the perpetrator of the crime by AAA and BBB, who testified with honesty and
credibility. Moreover, the RTC opined that it could not perceive any motive for AAA's family to impute a
serious crime of Rape to petitioner, considering the close relations of both families. Thus, the RTC disposed of
this case in this wise: DCcSHE
FOR ALL THE FOREGOING, the Court finds the accused Joemar Ortega Y Felisario GUILTY beyond
reasonable doubt as Principal by Direct Participation of the crime of RAPE as charged in Criminal Cases Nos.
98-19083 and 98-19084 and there being no aggravating or mitigating circumstance, he is sentenced to suffer the
penalty of Two (2) Reclusion Temporal in its medium period. Applying the Indeterminate Sentence Law, the
accused shall be imprisoned for each case for a period of Six (6) years and One (1) day of Prision Mayor, as
minimum, to Fifteen (15) years of Reclusion Temporal, as maximum. The accused is condemned to pay the
offended party AAA, the sum of P100,000.00 as indemnification for the two (2) rapes (sic). caCEDA
Aggrieved, petitioner appealed the RTC Decision to the CA. 30
Taking into consideration the age of petitioner and upon posting of the corresponding bail bond for his
provisional liberty in the amount of P40,000.00, the RTC ordered the petitioner's release pending appeal. 31
88
The CA's Ruling
III.
On October 26, 2000, the CA affirmed in toto the ruling of the RTC, holding that the petitioner's defense of
denial could not prevail over the positive identification of the petitioner by the victim AAA and her brother
BBB, which were categorical, consistent and without any showing of ill motive. The CA also held that the
respective medical examinations conducted by the two doctors were irrelevant, as it is established that the
slightest penetration of the lips of the female organ consummates rape; thus, hymenal laceration is not an
element of rape. Moreover, the CA opined that petitioner acted with discernment as shown by his covert acts.
Finally, the CA accorded great weight and respect to the factual findings of the RTC, particularly in the
evaluation of the testimonies of witnesses. HCETDS
THE FINDINGS OF THE LOWER COURT, AFFIRMED BY THE APPELLATE COURT, THAT
PETITIONER-APPELLANT IN FACT COMMITTED AND IS CAPABLE OF COMMITTING THE
ALLEGED RAPE WITHIN THE RESIDENCE OF THE VICTIM WHERE SEVERAL OF THE ALLEGED
VICTIM'S FAMILY MEMBERS AND THEIR RESPECTIVE MOTHERS WERE PRESENT IS
IMPROBABLE AND CONTRARY TO HUMAN EXPERIENCE. AaEcDS
Petitioner filed his Motion for Reconsideration 32 of the assailed Decision which the CA denied in its
Resolution 33 dated November 7, 2001.
IV.
THE HONORABLE APPELLATE COURT ERRED IN UPHOLDING THE FACTS SET FORTH BY THE
ALLEGED VICTIM REGARDING THE CIRCUMSTANCES ATTENDING THE COMMISSION OF RAPE
SOMETIME IN AUGUST 1996. 34
Hence, this Petition based on the following grounds:
I.
THE HONORABLE COURT OF APPEALS HAS OVERLOOKED CERTAIN FACTS OF SUBSTANCE AND
VALUE WHICH IF CONSIDERED MIGHT AFFECT THE RESULT OF THE CASE.
II.
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR WHEN IT FAILED TO

APPRECIATE THE MEDICAL FINDINGS OF DR. LUCIFREE KATALBAS.
Petitioner argues that, while it is true that the factual findings of the CA are conclusive on this Court, we are not
prevented from overturning such findings if the CA had manifestly overlooked certain facts of substance and
value which if considered might affect the result of the case. Petitioner stresses that from the testimonies of
AAA and BBB, it can be deduced that penetration was achieved; thus, AAA felt pain. Petitioner contends that
assuming the allegations of AAA are true that petitioner inserted his fingers and his penis into her vagina,
certainly such acts would leave certain abrasions, wounds and/or lacerations on the genitalia of AAA, taking
into consideration her age at the time and the alleged size of petitioner's penis. However, such allegation is
completely belied by the medical report of Dr. Katalbas who, one day after the alleged rape, conducted a
medical examination on AAA and found that there were no signs or indications that AAA was raped or
molested. Petitioner submits that the CA committed a grave error when it disregarded such medical report since
it disproves the allegation of the existence of rape and, consequently, the prosecution failed to prove its case;
thus, the presumption of innocence in favor of the petitioner subsists. Moreover, petitioner opines that like
AAA, petitioner is also a child of the barrio who is innocent, unsophisticated and lacks sexual experience. As
such, it is incredible and contrary to human reason that a 13-year-old boy would commit such act in the very
dwelling of AAA, whose reaction to pain, at the age of six, could not be controlled or subdued. Petitioner claims
that poverty was MMM's motive in filing the instant case, as she wanted to extort money from the parents of the
petitioner. Petitioner points out that the medical report of Dr. Jocson indicated that the abrasions that were
89
inflicted on the genitalia of AAA were relatively fresh and the same could disappear within a period of 3 to 4
days. Considering that Dr. Jocson conducted the medical examination on December 12, 1996, or after the lapse
of eleven (11) days after the alleged incident of rape, and that AAA's parents only filed the instant case after
almost a year, in order to deter Luzviminda from filing a case of slander by deed against FFF, it is not
inconceivable that MMM inflicted said abrasions on AAA to prove their case and to depart from the initial
confession of AAA that it was actually BBB who raped her. Finally, petitioner submits that AAA and BBB were
merely coached by MMM to fabricate these stories. 35
On the other hand, respondent People of the Philippines through the Office of the Solicitor General (OSG)
contends that: the arguments raised by the petitioner are mere reiterations of his disquisitions before the CA; the
RTC, as affirmed by the CA, did not rely on the testimonies of both doctors since despite the absence of
abrasions, rape is consummated even with the slightest penetration of the lips of the female organ; what is
relevant in this case is the reliable testimony of AAA that petitioner raped her in August and December of 1996;
even in the absence of force, rape was committed considering AAA's age at that time; as such, AAA did not
have any ill motive in accusing petitioner; and it is established that the crime of rape could be committed even
in the presence of other people nearby. Moreover, the OSG relies on the doctrine that the evaluation made by a
trial court is accorded the highest respect as it had the opportunity to observe directly the demeanor of a witness
and to determine whether said witness was telling the truth or not. Lastly, the OSG claims that petitioner acted
with discernment when he committed the said crime, as manifested in his covert acts. 36
However, Republic Act (R.A.) No. 9344, 37 or the Juvenile Justice and Welfare Act of 2006, was enacted into
law on April 28, 2006 and it took effect on May 20, 2006. 38 The law establishes a comprehensive system to
manage children in conflict with the law 39 (CICL) and children at risk 40 with child-appropriate procedures
and comprehensive programs and services such as prevention, intervention, diversion, rehabilitation, reintegration and after-care programs geared towards their development. In order to ensure its implementation, the
law, particularly Section 8 41 thereof, has created the Juvenile Justice and Welfare Council (JJWC) and vested it
with certain duties and functions 42 such as the formulation of policies and strategies to prevent juvenile
delinquency and to enhance the administration of juvenile justice as well as the treatment and rehabilitation of
the CICL. The law also provides for the immediate dismissal of cases of CICL, specifically Sections 64, 65, 66,
67 and 68 of R.A. No. 9344's Transitory Provisions. 43
The said Transitory Provisions expressly provide:
Title VIII
Transitory Provisions
SEC. 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. Upon effectivity of this Act,
cases of children fifteen (15) years old and below at the time of the commission of the crime shall immediately
be dismissed and the child shall be referred to the appropriate local social welfare and development officer.
Such officer, upon thorough assessment of the child, shall determine whether to release the child to the custody
of his/her parents, or refer the child to prevention programs, as provided under this Act. Those with suspended
sentences and undergoing rehabilitation at the youth rehabilitation center shall likewise be released, unless it is
contrary to the best interest of the child. ETHIDa
SEC. 65. Children Detained Pending Trial. If the child is detained pending trial, the Family Court shall also
determine whether or not continued detention is necessary and, if not, determine appropriate alternatives for
detention. If detention is necessary and he/she is detained with adults, the court shall immediately order the
transfer of the child to a youth detention home.
SEC. 66. Inventory of "Locked-up" and Detained Children in Conflict with the Law. The PNP, the BJMP and
the BUCOR are hereby directed to submit to the JJWC, within ninety (90) days from the effectivity of this Act,
an inventory of all children in conflict with the law under their custody. SIcEHC
SEC. 67. Children Who Reach the Age of Eighteen (18) Years Pending Diversion and Court Proceedings. If
a child reaches the age of eighteen (18) years pending diversion and court proceedings, the appropriate
diversion authority in consultation with the local social welfare and development officer or the Family Court in
consultation with the Social Services and Counseling Division (SSCD) of the Supreme Court, as the case may
be, shall determine the appropriate disposition. In case the appropriate court executes the judgment of
conviction, and unless the child in conflict with the law has already availed of probation under Presidential
Decree No. 603 or other similar laws, the child may apply for probation if qualified under the provisions of the
Probation Law.
90
SEC. 68. Children Who Have Been Convicted and are Serving Sentences. Persons who have been convicted
and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18)
years at the time of the commission of the offense for which they were convicted and are serving sentence, shall
likewise benefit from the retroactive application of this Act. They shall be entitled to appropriate dispositions
provided under this Act and their sentences shall be adjusted accordingly. They shall be immediately released if
they are so qualified under this Act or other applicable laws. EAcHCI
Ostensibly, the only issue that requires resolution in this case is whether or not petitioner is guilty beyond
reasonable doubt of the crime of rape as found by both the RTC and the CA. However, with the advent of R.A.
No. 9344 while petitioner's case is pending before this Court, a new issue arises, namely, whether the pertinent
provisions of R.A. No. 9344 apply to petitioner's case, considering that at the time he committed the alleged
rape, he was merely 13 years old.
In sum, we are convinced that petitioner committed the crime of rape against AAA. In a prosecution for rape,
the complainant's candor is the single most important factor. If the complainant's testimony meets the test of
credibility, the accused can be convicted solely on that basis. 44 The RTC, as affirmed by the CA, did not doubt
AAA's credibility, and found no ill motive for her to charge petitioner of the heinous crime of rape and to
positively identify him as the malefactor. Both courts also accorded respect to BBB's testimony that he saw
petitioner having sexual intercourse with his younger sister. While petitioner asserts that AAA's poverty is
enough motive for the imputation of the crime, we discard such assertion for no mother or father like MMM and
FFF would stoop so low as to subject their daughter to the tribulations and the embarrassment of a public trial
knowing that such a traumatic experience would damage their daughter's psyche and mar her life if the charge is
not true. 45 We find petitioner's claim that MMM inflicted the abrasions found by Dr. Jocson in the genitalia of
AAA, in order to extort money from petitioner's parents, highly incredible. Lastly, it must be noted that in most
cases of rape committed against young girls like AAA who was only 6 years old then, total penetration of the
victim's organ is improbable due to the small vaginal opening. Thus, it has been held that actual penetration of
the victim's organ or rupture of the hymen is not required. 46 Therefore, it is not necessary for conviction that
the petitioner succeeded in having full penetration, because the slightest touching of the lips of the female organ
or of the labia of the pudendum constitutes rape. 47
However, for one who acts by virtue of any of the exempting circumstances, although he commits a crime, by
the complete absence of any of the conditions which constitute free will or voluntariness of the act, no criminal
liability arises. 48 Therefore, while there is a crime committed, no criminal liability attaches. Thus, in Guevarra
v. Almodovar, 49 we held: aACHDS
[I]t is worthy to note the basic reason behind the enactment of the exempting circumstances embodied in Article
12 of the RPC; the complete absence of intelligence, freedom of action, or intent, or on the absence of
negligence on the part of the accused. In expounding on intelligence as the second element of dolus, Albert has
stated:
"The second element of dolus is intelligence; without this power, necessary to determine the morality of human
acts to distinguish a licit from an illicit act, no crime can exist, and because . . . the infant (has) no intelligence,
the law exempts (him) from criminal liability."
It is for this reason, therefore, why minors nine years of age and below are not capable of performing a criminal
act. HCaIDS
In its Comment 50 dated April 24, 2008, the OSG posited that petitioner is no longer covered by the provisions
of Section 64 of R.A. No. 9344 since as early as 1999, petitioner was convicted by the RTC and the conviction
was affirmed by the CA in 2001. R.A. No. 9344 was passed into law in 2006, and with the petitioner now
approximately 25 years old, he no longer qualifies as a child as defined by R.A. No. 9344. Moreover, the OSG
claimed that the retroactive effect of Section 64 of R.A. No. 9344 is applicable only if the child-accused is still
below 18 years old as explained under Sections 67 and 68 thereof. The OSG also asserted that petitioner may
avail himself of the provisions of Section 38 51 of R.A. No. 9344 providing for automatic suspension of
sentence if finally found guilty. Lastly, the OSG argued that while it is a recognized principle that laws
favorable to the accused may be given retroactive application, such principle does not apply if the law itself
provides for conditions for its application.
We are not persuaded.
91
Section 6 of R.A. No. 9344 clearly and explicitly provides:
SEC. 6. Minimum Age of Criminal Responsibility. A child fifteen (15) years of age or under at the time of
an intervention program pursuant to Section 20 of this Act. aCIHcD
A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal
liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case,
such child shall be subjected to the appropriate proceedings in accordance with this Act.
shall be enforced in accordance with existing laws. EScHDA
Likewise, Section 64 of the law categorically provides that cases of children 15 years old and below, at the time
of the commission of the crime, shall immediately be dismissed and the child shall be referred to the appropriate
local social welfare and development officer (LSWDO). What is controlling, therefore, with respect to the
exemption from criminal liability of the CICL, is not the CICL's age at the time of the promulgation of
judgment but the CICL's age at the time of the commission of the offense. In short, by virtue of R.A. No. 9344,
the age of criminal irresponsibility has been raised from 9 to 15 years old. 52
Given this precise statutory declaration, it is imperative that this Court accord retroactive application to the
aforequoted provisions of R.A. No. 9344 pursuant to the well-entrenched principle in criminal law
favorabilia sunt amplianda adiosa restrigenda. Penal laws which are favorable to the accused are given
retroactive effect. 53 This principle is embodied in Article 22 of the Revised Penal Code, which provides:
Code, although at the time of the publication of such laws, a final sentence has been pronounced and the convict
is serving the same. EIcSTD
We also have extant jurisprudence that the principle has been given expanded application in certain instances
involving special laws. 54 R.A. No. 9344 should be no exception.
In fact, the legislative intent for R.A. No. 9344's retroactivity is even patent from the deliberations on the bill in
the Senate, quoted as follows:
Sections 67-69 On Transitory Provisions
Senator Santiago.
In Sections 67 to 69 on Transitory Provisions, pages 34 to 35, may I humbly propose that we should insert,
after Sections 67 to 69, the following provision:
ALL CHILDREN WHO DO NOT HAVE CRIMINAL LIABILITY UNDER THIS LAW PENDING THE
CREATION OF THE OFFICE OF JUVENILE WELFARE AND RESTORATION (OJWR) AND THE LOCAL
COUNCIL FOR THE PROTECTION OF CHILDREN (LCPC) WITHIN A YEAR, SHALL BE
IMMEDIATELY TRANSFERRED TO DSWD INSTITUTIONS, AND DSWD SHALL UNDERTAKE
DIVERSION PROGRAMS FOR THEM, PRIORITIZING THE YOUNGER CHILDREN BELOW 15 YEARS
OF AGE AND THE LIGHTER OFFENSES. AaHTIE
The only question will be: Will the DSWD have enough facilities for these adult offenders?
Art. 22. Retroactive effect of penal laws. Penal laws shall have a retroactive effect insofar as they favor the
persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this
Senator Pangilinan
92
Mr. President, according to the CWC, the DSWD does not have the capability at the moment. It will take time
to develop the capacity.
Yes, that is correct. But there will have to be a process of sifting before that. That is why I was proposing that
they should be given to the DSWD, which will conduct the sifting process, except that apparently, the DSWD
does not have the physical facilities.
Senator Santiago.
Senator Pangilinan.
Well, we can say that they shall be transferred whenever the facilities are ready.
Senator Pangilinan.
Yes. Mr. President, just a clarification. When we speak here of children who do not have criminal liability
under this law, we are referring here to those who currently have criminal liability, but because of the retroactive
effect of this measure, will now be exempt. It is quite confusing. HDICSa
Senator Santiago.
Mr. President, conceptually, we have no argument. We will now have to just craft it to ensure that the input
raised earlier by the good Senator is included and the capacity of the DSWD to be able to absorb these
individuals. Likewise, the issue should also be incorporated in the amendment. CTaIHE
The President.
Just a question from the Chair. The moment this law becomes effective, all those children in conflict with the
law, who were convicted in the present Penal Code, for example, who will now not be subject to incarceration
under this law, will be immediately released. Is that the understanding?
That is correct.
Senator Pangilinan.
In other words, they should be released either to their parents or through a diversion program, Mr. President.
That is my understanding.
Senator Pangilinan.
Yes, Mr. President.
Senator Santiago.
Senator Santiago.
93
They would immediately fall under . . . .
Yes, that is correct, Mr. President. But it will still require some sort of infrastructure, meaning, manpower. The
personnel from the DSWD will have to address the counseling. So, there must be a transition in terms of
building the capacity and absorbing those who will benefit from this measure.
Senator Pangilinan.
The President.
The diversion requirements, Mr. President.
Therefore, that should be specifically provided for as an amendment.
Senator Santiago.
Senator Pangilinan.
Yes.
That is correct, Mr. President.
The President.
The President.
But since the facilities are not yet available, what will happen to them?
All right. Is there any objection? [Silence] There being none, the Santiago amendment is accepted. 55
Senator Santiago.
xxx xxx xxx
Well, depending on their age, which has not yet been settled . . . . . provides, for example, for conferencing
family mediation, negotiation, apologies, censure, et cetera. These methodologies will apply. They do not
necessarily have to remain in detention. CTSDAI
PIMENTEL AMENDMENTS
Senator Pangilinan.
xxx xxx xxx
Senator Pimentel.
94
xxx xxx xxx
Now, considering that laws are normally prospective, Mr. President, in their application, I would like to suggest
to the Sponsor if he could incorporate some kind of a transitory provision that would make this law apply also
to those who might already have been convicted but are awaiting, let us say, execution of their penalties as
adults when, in fact, they are juveniles.
What about those that have already been prosecuted? I was trying to cite the instance of juvenile offenders
erroneously convicted as adults awaiting execution. cSCADE
Senator Pangilinan.
Mr. President, we are willing to include that as an additional amendment, subject to style.
Senator Pangilinan.
Senator Pimentel.
Yes, Mr. President. We do have a provision under the Transitory Provisions wherein we address the issue raised
by the good Senator, specifically, Section 67. For example, "Upon effectivity of this Act, cases of children
fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and
the child shall be referred to the appropriate local social welfare and development officer." So that would be
giving retroactive effect.
I would certainly appreciate that because that is a reality that we have to address, otherwise injustice will really
be . . .
Senator Pangilinan.
Senator Pimentel.
Yes, Mr. President, we would also include that as a separate provision.
Of cases that are still to be prosecuted.
The President.
Senator Pangilinan.
Yes.
Senator Pimentel.
In other words, even after final conviction if, in fact, the offender is able to prove that at the time of the
commission of the offense he is a minor under this law, he should be given the benefit of the law. AaSIET
Senator Pimentel.
95
Yes, Mr. President. That is correct.
Senator Pangilinan.
Yes, Mr. President. We accept that proposed amendment. 56
The Court is bound to enforce this legislative intent, which is the dominant factor in interpreting a statute.
Significantly, this Court has declared in a number of cases, that intent is the soul of the law, viz.:
The intent of a statute is the law. If a statute is valid it is to have effect according to the purpose and intent of the
lawmaker. The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain
and give effect to the intent. The intention of the legislature in enacting a law is the law itself, and must be
enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not
follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to
conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative
enactment. In construing statutes the proper course is to start out and follow the true intent of the legislature and
to adopt that sense which harmonizes best with the context and promotes in the fullest manner the apparent
policy and objects of the legislature. 57
Moreover, penal laws are construed liberally in favor of the accused. 58 In this case, the plain meaning of R.A.
No. 9344's unambiguous language, coupled with clear lawmakers' intent, is most favorable to herein petitioner.
No other interpretation is justified, for the simple language of the new law itself demonstrates the legislative
intent to favor the CICL. EHTADa
It bears stressing that the petitioner was only 13 years old at the time of the commission of the alleged rape.
This was duly proven by the certificate of live birth, by petitioner's own testimony, and by the testimony of his
mother. Furthermore, petitioner's age was never assailed in any of the proceedings before the RTC and the CA.
Indubitably, petitioner, at the time of the commission of the crime, was below 15 years of age. Under R.A. No.
9344, he is exempted from criminal liability.
However, while the law exempts petitioner from criminal liability for the two (2) counts of rape committed
against AAA, Section 6 thereof expressly provides that there is no concomitant exemption from civil liability.
Accordingly, this Court sustains the ruling of the RTC, duly affirmed by the CA, that petitioner and/or his
parents are liable to pay AAA P100,000.00 as civil indemnity. This award is in the nature of actual or
compensatory damages, and is mandatory upon a conviction for rape. AIDSTE
The RTC, however, erred in not separately awarding moral damages, distinct from the civil indemnity awarded
to the rape victim. AAA is entitled to moral damages in the amount of P50,000.00 for each count of rape,
pursuant to Article 2219 of the Civil Code, without the necessity of additional pleading or proof other than the
fact of rape. Moral damages are granted in recognition of the victim's injury necessarily resulting from the
odious crime of rape. 59
A final note. While we regret the delay, we take consolation in the fact that a law intended to protect our
children from the harshness of life and to alleviate, if not cure, the ills of the growing number of CICL and
children at risk in our country, has been enacted by Congress. However, it has not escaped us that major
concerns have been raised on the effects of the law. It is worth mentioning that in the Rationale for the Proposed
Rule on Children Charged under R.A. No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, it was
found that:
The passage of Republic Act No. 9344 or the Juvenile Justice and Welfare Act of 2006 raising the age of
criminal irresponsibility from 9 years old to 15 years old has compounded the problem of employment of
children in the drug trade several times over. Law enforcement authorities, Barangay Kagawads and the police,
most particularly, complain that drug syndicates have become more aggressive in using children 15 years old or
below as couriers or foot soldiers in the drug trade. They claim that Republic Act No. 9344 has rendered them
ineffective in the faithful discharge of their duties in that they are proscribed from taking into custody children
15 years old or below who openly flaunt possession, use and delivery or distribution of illicit drugs, simply
because their age exempts them from criminal liability under the new law. 60
96
The Court is fully cognizant that our decision in the instant case effectively exonerates petitioner of rape, a
heinous crime committed against AAA who was only a child at the tender age of six (6) when she was raped by
the petitioner, and one who deserves the law's greater protection. However, this consequence is inevitable
because of the language of R.A. No. 9344, the wisdom of which is not subject to review by this Court. 61 Any
perception that the result reached herein appears unjust or unwise should be addressed to Congress. Indeed, the
Court has no discretion to give statutes a meaning detached from the manifest intendment and language of the
law. Our task is constitutionally confined only to applying the law and jurisprudence to the proven facts, and we
have done so in this case. 62
WHEREFORE, in view of the foregoing, Criminal Case Nos. 98-19083 and 98-19084 filed against petitioner
Joemar F. Ortega are hereby DISMISSED. Petitioner is hereby referred to the local social welfare and
development officer of the locality for the appropriate intervention program. Nevertheless, the petitioner is
hereby ordered to pay private complainant AAA, civil indemnity in the amount of One Hundred Thousand
Pesos (P100,000.00) and moral damages in the amount of One Hundred Thousand Pesos (P100,000.00). No
costs. IHTASa
Let a copy of this Decision be furnished the two Houses of Congress and the Juvenile Justice and Welfare
Council (JJWC).
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Corona * and Chico-Nazario, JJ., concur
SECOND DIVISION
[Adm. Matter No. 384 . February 21, 1946.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NICOLAS JAURIGUE and AVELINA
JAURIGUE, defendants. AVELINA JAURIGUE, appellant.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee.
SYLLABUS
1. CRIMINAL LAW; HOMICIDE; EXEMPTING CIRCUMSTANCES; DEFENSE OF HONOR. The

attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate defense,
inasmuch as a woman's honor cannot but be esteemed as a right as precious, if not more, than her very
existence; and it is evident that a woman who, thus imperiled, wounds nay kills the offender, should be afforded
exemption from criminal liability, since such killing cannot be considered a crime from the moment it became
the only means left for her to protect her honor from so great an outrage.
||| (Ortega v. People, G.R. No. 151085, [August 20, 2008], 584 PHIL 429-460)
2. ID.; ID.; ID.; ID.; CASE AT BAR. When the deceased sat by the side of defendant and appellant on the
same bench, near the door of the barrio chapel and placed his hand on the upper portion of her right thigh,
without her consent, the said chapel was lighted with electric lights, and there were already several people,
about ten of them, inside the chapel, including her own father and the barrio lieutenant; there was and there
could be no possibility of her being raped. And when she gave A. C. a thrust at the base of the left side of his
neck inflicting upon him a mortal wound 4 inches deep, causing his death a few moments later, the means
employed by her in the defense of her honor was evidently excessive. Held: That she cannot be legally declared
completely exempt from criminal liability.
97
3. ID.; ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER OBFUSCATION. The fact

that defendant and appellant immediately and voluntarily and unconditionally surrendered to the barrio
lieutenant, admitting having stabbed the deceased, and agreed to go to her house shortly thereafter and to
remain there subject to the order of the said barrio lieutenant, an agent of the authorities, and the further fact that
she had acted in the immediate vindication of a grave offense committed against her a few moments before, and
upon such provocation as to produce passion and obfuscation, or temporary loss of reason and self-control,
should be considered as mitigating circumstances in her favor.
4. ID.; ID.; ID.; LACK OF INTENTION TO COMMIT so GRAVE A WRONG AS THAT ACTUALLY
COMMITTED. It appearing that defendant and appellant merely wanted to punish the offending hand of the
deceased with her knife, as shown by the fact that she inflected upon him only one single wound, the mitigating
circumstance of lack of intention to commit so grave a wrong as that actually committed should be considered
in her favor.
From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for Southern
Luzon, and in her brief filed therein on June 10, 1944, claimed
"(1) That the lower court erred in not holding that said appellant had acted in the legitimate defense of her donor
and that she should be completely absolved of all criminal responsibility;
"(2) That the lower court erred in not finding in her favor the additional mitigating circumstances that (a) she
did not have the intention to commit so grave a wrong as that actually committed, and that (b)she voluntarily
surrendered to the agents of the authorities; and
"(3) That the trial court erred in holding that the commission of the alleged offense was attented by the
aggravating circumstance of having been committed in a sacred place."
5. ID.; ID.; AGGRAVATING CIRCUMSTANCES; COMMISSION OF OFFENSE IN CONSECRATED
PLACE. The aggravating circumstance that the killing was done in a place dedicated to religious worship,
cannot be legally considered, where there is no evidence to show that the defendant and appellant had murder in
her heart when she entered the chapel the fatal night.
DECISION
DE JOYA, J p:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the crime
of murder, of which Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue was found guilty of
homicide and sentenced to an indeterminate penalty ranging from seven years, four months and one day of
prision mayor to thirteen years, nine months and eleven days of reclusion temporal, with the accessory penalties
provided by law, to indemnify the heirs of the deceased, Amado Capia, in the sum of P2,000, and to pay onehalf of the costs. She was also credited with one-half of the period of preventive imprisonment suffered by her.
The evidence adduced by the parties, at the trial in the court below, has sufficiently established the following
facts:
That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capia lived in the barrio of
Sta. Isabel, city of San Pablo, Province of Laguna; that for sometime prior to the stabbing of the deceased by
defendant and appellant, in the evening of September 20, 1942, the former had been courting the latter in vain,
and that on one occasion, about one month before that fatal night, Amado Capia snatched a handkerchief
belonging to her, bearing her nickname "Aveling,: while it was being washed by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and spoke to
her of his love, which she flatly refused, and he thereupon suddenly embraced and kissed her and touched her
breast, on account of which Avelina, a resolute and quick- tempered girl, slapped Amado, gave him fist blows
and kicked him. She kept the matter to herself, until the following morning when she informed her mother about
it. Since then, she armed herself with a long fan knife, whenever she went out, evidently for self-protection.
98
On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and
surreptitiously entered the room where she was sleeping. He felt her forehead, evidently with the intention of
abusing her. She immediately screamed for help, which awakened her parents and brought them to her side.
Amado came out from where he had hidden under a bed in Avelina's room and kissed the hand of Nicolas
Jaurigue, her father, asking for forgiveness; and when Avelina's mother made an attempt to beat Amado, her
husband prevented her from doing so, stating that Amado probably did not realize what he was doing. Nicolas
Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following morning.
Amado's parents came to the house of Nicolas Jaurigue and apologized for the misconduct of their son; and as
Nicolas Jaurigue was then angry, he told them to end the conversation, as he might not be able to control
himself.
In the morning of September 20, 1942, Avelina received information that Amado had been falsely boasting in
the neighborhood of having taken liberties with her person and that she had even asked him to elope with her
and that if he should not marry her, she would take poison; and that Avelina again received information of
Amado's bragging at about 5 o'clock in the afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the chapel of
the Seventh Day Adventists of which he was the treasurer, in their barrio, just across the provincial road from
his house, to attend religious services, and sat on the front bench facing the altar with the other officials of the
organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was quite bright as there were
electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also for the
purpose of attending religious services, and sat on the bench next to the last one nearest the door. Amado Capia
was seated on the other side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capia
went to the bench on which Avelina was sitting and sat by her right side, and, without saying a word, Amado,
with the greatest of impudence, placed his hand on the upper part of her right thigh. On observing this highly
improper and offensive conduct of Amado Capia, Avelina Jaurigue, conscious of her personal dignity and
honor, pulled out with her right hand the fan knife marked Exhibit B, which she had in a pocket of her dress,
with the intention of punishing Amado's offending hand. Amado seized Avelina's right hand, but she quickly
grabbed the knife with her left hand and stabbed Amado once at the base of the left side of the neck, inflicting
upon him a wound about 41/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was seated on
one of the front benches, saw Amado bleeding and staggering towards the altar, and upon seeing his daughter
still holding the bloody knife, he approached her and asked: "Why did you do that," and answering him, Avelina
said: "Father, I could not endure anymore." Amado Capia died from the wound a few minutes later. Barrio
lieutenant Casimiro Lozada, who was also in the same chapel, approached Avelina and asked her why she did
that, and Avelina surrendered herself, saying: "Kayo na po and bahala sa aquin," meaning: "I hope you will take
care of me." or more correctly, "I place myself at your disposal." Fearing that Amado's relatives might retaliate,
barrio lieutenant Lozada advised Nicolas Jaurigue and herein defendant and appellant to go home immediately,
to close their doors and windows and not to admit anybody into the house, unless accompanied by him. That
father and daughter went home and locked themselves up, following instructions of the barrio lieutenant, and
waited for the arrival of the municipal authorities; and when three policemen arrived in their house, at about 10
o'clock that night, and questioned them about the incident, defendant and appellant immediately surrendered the
knife marked as Exhibit B, and informed said policemen briefly of what had actually happened in the chapel
and of the previous acts and conduct of the deceased, as already stated above, and went with said policemen to
the police headquarters, where her written statements were taken, and which were presented as a part of the
evidence for the prosecution.
The high conception of womanhood that our people possess, however humble they may be, is universal. It has
been entertained and has existed in all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the
only true nobility. And they are the future wives and mothers of the land Such are the reasons why, in the
defense of their honor, when brutally attacked, women are permitted to make use of all reasonable means
available within their reach, under the circumstances. Criminologists and courts of justice have entertained and
upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days of
chivalry. There is a country where women freely go out unescorted and, like the beautiful roses in their public
gardens, they always receive the protection of all. That country is Switzerland.
99
In the language of Viada, aside from the right to life on which rests the legitimate defense of our own person,
we have the right to property acquired by us, and the right to honor which is not the least prized of our
patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate
defense, inasmuch as a woman's honor cannot but be esteemed as a right as precious, if not more, than her very
existence; and it is evident that a woman who, thus imperiled, wounds, may kills the offender, should be
afforded exemption from criminal liability, since such killing cannot be considered a crime from the moment it
became the only means left for her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th
ed., p. 301; People vs. Luague and Alcansare, 62 Phil., 504).
As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the defense of
her honor. Thus, where the deceased grabbed the defendant in a dark night at about 9 o'clock, in an isolated
barrio trail, holding her firmly from behind, without warning and without revealing his identity, and, in the
struggle that followed, touched her private parts, and that she was unable to free herself by means of her
strength alone, she was considered justified in making use of a pocket knife in repelling what she believed to be
an attack upon her honor, and which ended in his death, since she had no other means of defending herself, and
consequently exempt from all criminal liability (People vs. De la Cruz, 61 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with a bolo
which she happened to be carrying at the time, even though her cry for assistance might have been heard by
people nearby, when the deceased tried to assault her in a dark and isolated place, while she was going from her
house to a certain tienda, for the people of making purchases (United States vs. Santa Ana and Ramos, 22 Phil.,
249).
In the case, however, in which a sleeping woman was awakened at night by someone touching her arm, and,
believing that some person was attempting to abuse her, she asked who the intruder was and receiving no reply,
attacked and killed the said person with a pocket knife, if was held that, notwithstanding the woman's belief in
the supposed attempt, it was not sufficient provocation or aggression to justify her completely in using a deadly
weapon. Although she actually believed it to be the beginning of an attempt against her, she was not completely
warranted in making such a deadly assault, as the injured person, who turned out to be her own brother-in-law
returning home with his wife, did not do any other act which could be considered as an attempt against her
honor (United States vs. Apego, 23 Phil., 391).
In the instant case, if defendant and appellant had killed Amado Capia, when the latter climbed up her house
late at night on September 15, 1942, and surreptitiously entered her bedroom, undoubtedly for the purpose of
raping her, as indicated by his previous acts and conduct, instead of merely shouting for help, she could have
been perfectly justified in killing him, as shown by the authorities cited above.
According to the facts established by the evidence and found by the learned trial court in this case, when the
deceased sat by the side of defendant and appellant on the same bench, near the door of the barrio chapel and
placed his hand on the upper portion of her right thigh, without her consent, the said chapel was lighted with
electric lights, and there were already several people, about ten of them, inside the chapel, including her own
father and the barrio lieutenant and other dignitaries of the organization; and under the circumstances, there was
and there could be no possibility of her being raped. And when she gave Amado Capia a thrust at the base of
the left side of his neck, inflicting upon him a mortal wound 41/2 inches deep, causing his death a few moments
later, the means employed by her in the defense of her honor was evidently excessive; and under the facts and
circumstances of the case, she cannot be legally declared completely exempt from criminal liability.
But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered to the
barrio lieutenant in said chapel, admitting having stabbed the deceased, immediately after the incident, and
agreed to go to her house shortly thereafter and to remain there subject to the order of the said barrio lieutenant,
an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted in
the immediate vindication of a grave offense committed against her a few moments before, and upon such
provocation as to produce passion and obfuscation, or temporary loss of reason and self-control, should be
considered as mitigating circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs. Sakam, 61
Phil., 27; United States vs. Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended to kill the deceased but merely wanted to
punish his offending hand with her knife, as shown by the fact that she inflicted upon him only one single
wound. And this is another mitigating circumstance which should be considered in her favor (United States vs.
Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).
The claim of the prosecution, sustained by the learned trial court, that the offense was committed by the
defendant and appellant, with the aggravating circumstance that the killing was done in a place dedicated to
100
religious worship, cannot be legally sustained; as there is no evidence to show that the defendant and appellant
had murder in her heart when she entered the chapel that fatal night. Avelina is not a criminal by nature. She
happened to kill under the greatest provocation. She is a God-fearing young woman, typical of our country girls,
who still possess the consolation of religious hope in a world where so many others have hopelessly lost the
faith of their elders and now drifting away they know not where.
The questions raised in the second and third assignments of error appear, therefore, to be well taken; and so is
the first assignment of error to a certain degree.
||| (People of the Phil. v. Jaurigue, Adm. Matter No. 384, [February 21, 1946], 76 PHIL 174-183)
FIRST DIVISION
[G.R. No. L-12883. November 26, 1917.]

In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado Capia, in the
manner and form and under the circumstances above indicated, the defendant and appellant committed the
crime of homicide, with no aggravating circumstance whatsoever, but with at least three mitigating
circumstances of a qualified character to be considered in her favor; and, in accordance with the provisions of
article 69 of the Revised Penal Code, she is entitled to a reduction by one or two degrees in the penalty to be
imposed upon her. And considering the circumstances of the instant case, the defendant and appellant should be
accorded the most liberal consideration possible under the law (United States vs. Apego, 23 Phil., 391; United
States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950).
THE UNITED STATES, plaintiff-appellee, vs. CLEMENTE AMPAR, defendant-appellant.
Filemon A. Cosio for appellant.
Acting Attorney-General Paredes for appellee.

The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be reduced by
two degrees, the penalty to be imposed in the instant case is that of prision correccional; and pursuant to the
provisions of section 1 of Act No. 4103 of the Philippine Legislature, known as the Indeterminate Sentence
Law, herein defendant and appellant should be sentenced to an indeterminate penalty ranging from arresto
mayor in its medium degree, to prision correccional in its medium degree. Consequently, with the modification
of the judgment appealed from, defendant and appellant Avelina Jaurigue is hereby sentenced to an
indeterminate penalty ranging from two months and one day of arresto mayor, as minimum, to two years, four
months, and one day of prision correccional, as maximum, with the accessory penalties prescribed by law, to
indemnify the heirs of the deceased Amado Capia, in the sum of P2,000, and to suffer the corresponding
subsidiary imprisonment, not to exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs.
Defendant and appellant should also be given the benefit of 1/2 of her preventive imprisonment, and the knife
marked Exhibit B ordered confiscated. So ordered.
SYLLABUS
1. CRIMINAL LAW; MITIGATING CIRCUMSTANCE OF VINDICATION OF A GRAVE OFFENSE.

During a fiesta, the accused, a man 70 years of age, asked on Patobo for some roast pig. Patobo's answer was; "
There is no more. Come here and I will make roast pig of you." With this as the provocation, a little latter while
the said Patobo was squatting down, the accused came up behind him and struck him on the head with an ax,
causing death the following day. The lower court took into consideration the mitigating circumstance that the
act was committed in the immediate vindication of a grave offense to the one committing the felony. The
offense which the accused was endeavoring to vindicate would to an average person be considered as a mere
trifle. But since to this defendant, an old man, it evidently was a serious matter to be made the but of a joke in
the presence of so many guests, it is proper to give the defendant the benefit of this mitigating circumstance.
Ozaeta, Perfecto, and Bengzon, JJ., concur.
101
DECISION
MALCOLM, J p:
A fiesta was in progress in the barrio of Magbaboy, municipality of San Carlos, Province of Occidental Negros.
Roast pig was being served. The accused Clemente Ampar, a man of three score and ten, proceeded to the
kitchen and asked Modesto Patobo for some of the delicacy. Patobo's answer was; " There is no more. Come
here and I will make roast pig of you." The effect of this on the accused as explained by him in his confession
was, "Why was he doing like that, I am not a child." With this as the provocation, a little later while the said
Modesto Patobo was squatting down, the accused came up behind him and struck him on the head with an ax,
causing death the following day.
Judgment of the trial court sentencing the defendant and appellant to seventeen years four months and on day of
cadena temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Modesto
Patobo, in the amount of one thousand pesos, and to pay the costs is affirmed, with the costs of this instance
against the appellant. So ordered.
Arellano, C. J., Torres, and Araullo, JJ., concur.
Johnson, J., concurs in the result.
Street, J., did not sign.

||| (United States v. Ampar, G.R. No. L-12883, [November 26, 1917], 37 PHIL 201-204)
As the case turns entirely on the credibility of witnesses, we should of course not interfere with the findings of
the trial court. In ascertaining the penalty, the court, naturally, took into consideration the qualifying
circumstance of alevosia. The court, however, gave the accused the benefit of a mitigating circumstance which
on cursory examination would not appear to be justified. This mitigating circumstance was that the act was
committed in the immediate vindication of a grave offense to the one committing the felony.
The authorities give us little assistance in arriving at a conclusion as to whether this circumstance was rightly
applied. The there was immediate vindication of whatever one may term the remarks of Patobo to the accused is
admitted. Whether these remarks can properly be classed as "a grave offense" is more uncertain. The supreme
court of Spain has held the words "gato que araaba a todo el mundo," "ladrones," and "era tonto, como toda su
familia" as not sufficient to justify a finding of this mitigating circumstance. (Decisions of January 4, 1876;
May 17, 1877; May 13, 1886.) But the same court has held the words "tan ladron eres tu como tu padre" to be a
grave offense. (Decision of October 22, 1894.) We consider that these authorities hardly put the facts of the
present case in their proper light. The offense which the defendant was endeavoring to vindicate would to the
average person be considered as a mere trifle. But to this defendant, an old man, it evidently was a serious
matter to be made the but of a joke in the presence of so many guests. Hence, it is believed that the lower court
very properly gave defendant the benefit of a mitigating circumstance, and correctly sentenced him to the
minimum degree of the penalty provided for the crime of murder.
EN BANC
[G.R. Nos. 140514-15. September 30, 2003.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUNE IGNAS y SANGGINO, accused-appellant.
The Solicitor General for plaint iff-appellee.
102
Public Attorney's Office for accused-appellant.
SYNOPSIS
Appellant was found guilty by the trial court of the crime of murder aggravated especially by the use of an
unlicensed firearm. He was sentenced to suffer the penalty of reclusion perpetua, but, on motion for
reconsideration by the prosecution, the penalty was upgraded to death. Hence, this automatic review of the case.
cHAaEC
The Supreme Court ruled that appellant can be held liable only for homicide because of the absence of specific
allegations of the qualifying and aggravating circumstances attendant in the commission of the crime as
required under the 2000 Revised Rules of Criminal Procedure, which procedural rule was favorable to the
accused and thus given retroactive effect.
The Court further ruled that the special aggravating circumstance of use of unlicensed firearm cannot be
appreciated in the present case for failure of the prosecution to adduce the necessary quantum of evidence. Like
the killing, said aggravating circumstance must likewise be proved beyond reasonable doubt.
The Court likewise ruled that when the issue boils down to the credibility of witnesses, the appellate court will
not generally disturb the findings of the trial court because the latter is in the vantage position of observing
witnesses through the various indicia of truthfulness or falsehood. The Court found no cogent reason to disturb
the findings of the trial court.
Thus, the Court found appellant guilty only of homicide.
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; INFORMATION; MUST

ALLEGE THE QUALIFYING AND AGGRAVATING CIRCUMSTANCES ATTENDANT TO THE
COMMISSION OF THE CRIME. The 2000 Revised Rules of Criminal Procedure requires that the
qualifying and aggravating circumstances must be specifically alleged in the information. Although the Revised
Rules of Criminal Procedure took effect only on December 1, 2000 or long after the fatal shooting of Nemesio
Lopate, as a procedural rule favorable to the accused, it should be given retrospective application. Hence, absent
specific allegations of the attendant circumstances of treachery, evident premeditation, and nocturnity in the
amended information, it was error for the trial court to consider the same in adjudging appellant guilty of
murder. As worded, we find that the amended information under which appellant was charged and arraigned, at
best indicts him only for the crime of homicide. Any conviction should, thus, fall under the scope and coverage
of Article 249 of the Revised Penal Code.
2. CRIMINAL LAW; REPUBLIC ACT NO. 8294; WHERE HOMICIDE OR MURDER IS COMMITTED
WITH THE USE OF UNLICENSED FIREARM, THE SEPARATE PENALTY FOR ILLEGAL POSSESSION
OF FIREARM SHALL NO LONGER BE IMPOSED SINCE IT BECOMES MERELY A SPECIAL
AGGRAVATING CIRCUMSTANCE. Under R.A. No. 8294, which took effect on July 8, 1997, where
murder or homicide is committed with the use of an unlicensed firearm, the separate penalty for illegal
possession of firearm shall no longer be imposed since it becomes merely a special aggravating circumstance.
This Court has held in a number of cases that there can be no separate conviction of the crime of illegal
possession of firearm where another crime, as indicated by R.A. No. 8294, is committed. Although R.A. No.
8294 took effect over a year after the alleged offense was committed, it is advantageous to the appellant insofar
as it spares him from a separate conviction for illegal possession of firearms and thus should be given
retroactive application.
3. REMEDIAL LAW; EVIDENCE; MOONLIGHT, STARLIGHT, KEROSENE LAMPS, FLASHLIGHTS

AND LIGHTS OF PASSING VEHICLES MAY BE ADEQUATE TO PROVIDE ILLUMINATION
SUFFICIENT FOR PURPOSES OF RECOGNITION. Familiarity with the physical features, particularly
those of the face, is actually the best way to identify the person. That the only illumination in the area came
from the taillight of a parked vehicle and the lights on the roof of the bagsakan does not discredit her account.
We have held that moonlight, starlight, kerosene lamps, a flashlight, and lights of passing vehicles may be
adequate to provide illumination sufficient for purposes of recognition and identification.
SYLLABUS
4. ID.; ID.; CREDIBILITY OF WITNESSES; FINDINGS THEREON BY TRIAL COURT, GENERALLY
NOT DISTURBED ON APPEAL. When the issue boils down to the credibility of witnesses, the appellate
103
court will not generally disturb the findings of the trial court because the latter is in the vantage position of
observing witnesses through the various indicia of truthfulness or falsehood. However, this rule is not absolute.
One exception is where the judge who wrote the decision did not personally hear the prosecution's evidence. In
this case, the records show that Judge Angel V. Colet, who authored the assailed decision, took over from Judge
Benigno M. Galacgac only on April 29, 1997 or after the witnesses for the prosecution had testified. It does not
follow, however, that a judge who was not present at the trial cannot render a just and valid judgment. The
records and the transcripts of stenographic notes are available to him as basis for his decision.
5. ID.; ID.; ID.; NOT ADVERSELY AFFECTED BY VARIATIONS IN THE TESTIMONY OF A WITNESS
AS TO MINOR DETAILS OF THE CRIME. It is axiomatic that slight variations in the testimony of a
witness as to minor details or collateral matters do not affect his or her credibility as these variations are in fact
indicative of truth and show that the witness was not coached to fabricate or dissemble. An inconsistency, which
has nothing to do with the elements of a crime, is not a ground to reverse a conviction.
6. ID.; ID.; ID.; NOT IMPAIRED BY DELAY IN REPORTING THE CRIME TO POLICE AUTHORITIES
WHEN DELAY IS SATISFACTORILY EXPLAINED; CASE AT BAR. There is no rule that the suspect in a
crime should immediately be named by a witness. Different people react differently to a given situation and
there is no standard form of human behavior when one is confronted with a strange, startling, or frightful
experience. The Court understands the natural reluctance or aversion of some people to get involved in a
criminal case. More so where, as in these cases, a townmate of Bayanes and Bayacsan is involved. We have
taken notice that when their townmates are involved in a criminal case, most people turn reticent. Hence, the
failure of Bayanes and Bayacsan to immediately volunteer information to the police investigators will not lessen
the probative value of their respective testimonies. The delay, having been satisfactorily explained, has no effect
on their credibility.
7. ID.; ID.; TESTIMONIAL EVIDENCE; RES GESTAE; REQUISITES; PRESENT IN CASE AT BAR.
The requisites of res gestae are: (1) the principal act or res gestae must be a startling occurrence; (2) the
statement is spontaneous or was made before the declarant had time to contrive or devise a false statement, and
the statement was made during the occurrence or immediately prior or subsequent to thereto; and (3) the
statement made must concern the occurrence in question and its immediately attending circumstances. All these
elements are present in appellant's verbal admission to Barredo that he killed the victim when he went to the
latter's house half an hour after the fatal shooting of Nemesio.
8. ID.; ID.; ADMISSIBILITY; ADMISSION MADE TO PRIVATE PERSON, ADMISSIBLE IN EVIDENCE

AGAINST DECLARANT. [S]ince appellant's admission was not solicited by police officers in the course of
a custodial investigation, but was made to a private person, the provisions of the Bill of Rights on custodial
investigation do not apply. The Rules of Court provides that an admission made to a private person is admissible
in evidence against the declarant.
9. ID.; ID.; CIRCUMSTANTIAL EVIDENCE; WHEN SUFFICIENT TO CONVICT ACCUSED.

Circumstantial evidence suffices to convict if the following requisites are met: (1) there is more than one
circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt.
10. ID.; ID.; ALIBI; WHEN TO PROSPER AS A DEFENSE Appellant's alibi cannot prevail over the
positive testimony of Bayanes concerning appellant's identification and presence at the crime scene. Basic is the
rule that for alibi to prosper, the accused must prove that he was somewhere else when the crime was committed
and that it was physically impossible for him to have been at the scene of the crime. Physical impossibility
refers to the distance between the place where the appellant was when the crime transpired and the place where
it was committed, as well as the facility of access between the two places. In these cases, the defense admitted
that the distance between La Trinidad, Benguet and Kayapa, Nueva Vizcaya is 79 kilometers, which can be
negotiated in 4 or 5 hours. Clearly, it was not physically impossible for appellant to beat the locus criminis at
the time of the killing. Hence, the defense of alibi must fail.
11. CRIMINAL LAW; SPECIAL AGGRAVATING CIRCUMSTANCE OF USE OF UNLICENSED

FIREARM; MUST BE ALLEGED IN THE INFORMATION AND SUFFICIENTLY PROVEN BY THE
PROSECUTION. It is not enough that the special aggravating circumstance of use of unlicensed firearm be
alleged in the information, the matter must be proven with the same quantum of proof as the killing itself. Thus,
the prosecution must prove: (1) the existence of the subject firearm; and (2) the fact that the accused who owned
or possessed it does not have the corresponding license or permit to own or possess the same.
12. ID.; MITIGATING CIRCUMSTANCES; VINDICATION OF A GRAVE OFFENSE AND PASSION AND
OBFUSCATION; CANNOT BE CLAIMED AT THE SAME TIME, IF THEY ARISE FROM THE SAME
FACTS OR MOTIVE. [T]he mitigating circumstances of vindication of a grave offense and passion and
obfuscation cannot be claimed at the same time, if they arise from the same facts or motive. In other words, if
104
appellant attacked his victim in proximate vindication of a grave offense, he could no longer claim in the same
breath that passion and obfuscation also blinded him.
13. ID.; ID.; PASSION AND OBFUSCATION; REQUISITES. [F]or passion and obfuscation to be well
founded, the following requisites must concur: (1) there should be an act both unlawful and sufficient to
produce such condition of mind; and (2) the act which produced the obfuscation was not far removed from the
commission of the crime by a considerable length of time, during which the perpetrator might recover his moral
equanimity.
14. ID.; ID.; VOLUNTARY SURRENDER; REQUISITES; NOT PRESENT IN CASE AT BAR. Appellant
further argues that the lower court erred in failing to consider voluntary surrender as a mitigating circumstance.
On this point, the following requirements must be satisfied: (I) the offender has not actually been arrested; (2)
the offender surrendered himself to a person in authority: and (3) the surrender was voluntary. Records show,
however, that leaflets and posters were circulated for information to bring the killer of Nemesio to justice. A
team of police investigators from La Trinidad, Benguet then went to Kayapa, Nueva Vizcaya to invite appellant
for questioning. Only then did he return to Benguet. But he denied the charge of killing the victim. Clearly,
appellant's claimed surrender was neither spontaneous nor voluntary.
15. CIVIL LAW; DAMAGES; ACTUAL DAMAGES; TO BE RECOVERED, THE AMOUNT OF LOSS
MUST NOT ONLY BE CAPABLE OF PROOF BUT MUST BE ACTUALLY PROVEN WITH
REASONABLE DEGREE OF CERTAINTY. In order for actual damages to be recovered, the amount of
loss must not only be capable of proof but must actually be proven with reasonable degree of certainty,
premised upon competent proof or best evidence obtainable of the actual amount thereof, such as receipts or
other documents to support the claim.
DECISION
QUISUMBING, J p:
In the amended decision 1 dated June 2, 1999, in Criminal Case No. 96-CR-2522, the Regional Trial Court
(RTC) of La Trinidad, Benguet, Branch 8, found appellant June Ignas y Sanggino guilty of murder aggravated
especially by the use of an unlicensed firearm. Appellant was initially sentenced to suffer the penalty of
reclusion perpetua, 2 but on motion for reconsideration by the prosecution, the penalty was upgraded to death
by lethal injection. 3 Hence, the case is now before us for automatic review. ISHaTA
Appellant is an elementary school graduate. He resided at Cruz, La Trinidad, Benguet, where he operated a
bakery. 4 He is married to Wilma Grace Ignas, by whom he has a son of minor age. 5 Wilma Grace used to be
the cashier of Windfield Enterprise, which is owned by Pauline Gumpic. 6 Pauline had a brother, Nemesio
Lopate. It was he whom appellant fatally shot.
In the amended Information, 7 pursuant to Section 14, Rule 110 8 of the 1985 Rules of Criminal Procedure, the
Provincial Prosecutor of Benguet charged appellant as follows:
That on or about the 10th day of March 1996 at Trading Post, Km. 5, Municipality of La Trinidad, Province of
Benguet, Philippines, and within the jurisdiction of this Honorable Court, without any authority of law or
without any lawful permit did then and there willfully, unlawfully and knowingly have in his possession, control
and custody a Cal. .38 hand gun and two (2) ammunitions, (sic) which firearm and ammunitions were used by
the accused in unlawfully killing NEMESIO LOPATE at the above-mentioned place and date in violation of the
said law.
CONTRARY TO LAW. 9
Appellant was arraigned and pleaded not guilty to the foregoing amended information. The case then proceeded
to be heard on the merits.
105
Gleaned from the records, the facts of this case are as follows:
Sometime in September 1995, appellant's wife, Wilma Grace Ignas, confided to her close friend, Romenda 10
Foyagao, that she was having an affair with Nemesio Lopate. 11
On the evening of October 16, 1995, Wilma Grace, Romenda, and Nemesio went to Manila. Romenda and
Nemesio were sending off Wilma Grace at the Ninoy Aquino International Airport as she was leaving for
Taiwan to work as a domestic helper. Upon arrival in Manila, the trio checked at Dangwa Inn, with Nemesio
and Wilma Grace sharing a room. 12 All three of them stayed at the inn until October 18, 1995, when Wilma
Grace left for Taiwan. 13
Thereafter, Romenda received from Taiwan four letters written by Wilma Grace on various dates. Although all
the letters were addressed to Romenda, two of them were meant by Wilma Grace to be read by her paramour,
Nemesio. 14 In the other two letters, Wilma Grace instructed Romenda to reveal to appellant her affair with
Nemesio.
It was only sometime late in February 1996 that Romenda, following her bosom friend's written instructions,
informed appellant about the extramarital affair between Wilma Grace and Nemesio. Romenda informed him
that the two had spent a day and a night together in a room at Dangwa Inn in Manila. 15 Appellant became
furious. He declared "Addan to aldaw na dayta nga Nemesio, patayek dayta nga Nemesio" (There will be a day
for that Nemesio. I will kill that Nemesio). 16 Appellant then got all the letters of Wilma Grace from
Romenda. 17
That same week Alfred Mayamnes, appellant's neighbor who was presented at the trial as a prosecution witness,
had a talk with appellant. Mayamnes was an elder of the Kankanaey tribe to which appellant belonged. He
wanted to confirm whether Nemesio Lopate, who was likewise from the same tribe, 18 was having an affair
with appellant's spouse. Talk apparently had reached the tribal elders and they wanted the problem resolved as
soon as possible. 19 A visibly angry appellant confirmed the gossip. 20 Mayamnes also testified that he
advised Nemesio to stay at the Mountain Trail Kankanaey community until things had cooled down. 21
Shortly after their talk, appellant closed down his bakeshop and offered his equipment for sale. Among the
potential buyers he approached was Mayamnes, but the latter declined the offer. 22
Sometime during the first week of March, Mayamnes saw appellant load his bakery equipment on board a hired
truck and depart for Nueva Vizcaya. 23
At around 10:00 p.m. of March 10, 1996, according to another prosecution witness, Annie Bayanes, a trader in
vegetables, she was at the Trading Post, La Trinidad, Benguet. 24 The Trading Post is a popular depot where
vegetable growers in the Cordilleras bring their produce late in the evenings for sale to wholesalers and
retailers. Witness Bayanes said she was at the unloading area (bagsakan), conversing with another dealer at the
latter's booth, when suddenly two gunshots shattered the quiet evening. 25
Bayanes turned towards the place where the sound of the gunshots came from. She testified that she saw a
person falling to the ground. 26 Standing behind the fallen individual, some 16 inches away, 27 was another
person who tucked a handgun into his waistband and casually walked away. 28
Initially, she only saw the gunman's profile, but when he turned, she caught a glimpse of his face. 29 She
immediately recognized him as the appellant June Ignas. She said she was familiar with him as he was her
townmate and had known him for several years. Witness Bayanes was five or six meters away from the scene,
and the taillight of a parked jeepney, which was being loaded with vegetables, plus the lights from the roof of
the bagsakan, aided her recognition of appellant. 30
Also at the bagsakanarea that night was prosecution witness Marlon Manis. He testified that on hearing
gunshots from the Trading Post entrance, he immediately looked at the place where the gunfire came from. He
saw people converging on a spot where a bloodied figure was lying on the ground. 31 Witness Manis saw that
the fallen victim was Nemesio Lopate, whom he said he had known since Grade 2 in elementary school. 32
Manis then saw another person, some 25 meters away, hastily walking away from the scene. He could not see
the person's face very well, but from his gait and build, he identified the latter as his close friend and neighbor,
June Ignas. 33 Manis said that the scene was very dimly lit and the only illumination was from the lights of
passing vehicles, but he was familiar with appellant's build, hairstyle, and manner of walking. 34
106
Prosecution witness Mona Barredo, a bakery worker, testified that she knew appellant. She said they were coworkers formerly at the Annaliza Bakery at Km. 10, Shilan, La Trinidad, Benguet. 35 Barredo declared that at
around 10:30 p.m. of March 10, 1996, appellant came to her residence at Pico, La Trinidad. After being served
refreshments, appellant took out a handgun from his jacket and removed the empty shells from the chamber. 36
Appellant then told her to throw the empty cartridges out of the window. Because of nervousness she complied.
37 Barredo also said that appellant disclosed to her that he had just shot his wife's paramour. 38 Appellant
then stayed at her house for 8 or 9 hours; he left only in the morning of March 11, 1996, 39 according to her.
Police investigators later recovered the spent gun shells from witness Barredo's sweet potato garden. 40
9. Circular hole, penetrating, on the back, right side, 0.7 cm. x 0.7 cm. diam., with blackened edges (0.9 x 0.9
cm. span), at the level of the fifth intercostal space, subscapular area, 13 cm. from the midline, directed to the
left side of the chest, 38.0 cm. from the embedded bullet slug of the left shoulder. 42
Dr. Jovellanos determined the cause of death to be "Hypovolemia due to gunshot wound, back, right, (Point of
Entry fifth intercostal space subscapular area)." 43 She further stated on the witness stand that she
recovered a bullet from the victim's left shoulder, which she turned over to the police investigators. 44
According to her, given the blackened edges of the gunshot wound at the victim's back, Nemesio was shot from
a distance of less than three (3) feet. 45
According to witness on the scene, responding policemen immediately brought the victim, Nemesio Lopate, to
the Benguet General Hospital where he was pronounced dead on arrival. 41
Dr. Doris C. Jovellanos, Municipal Health Officer of La Trinidad, Benguet, testified during that trial that she
conducted the post-mortem examination of the victim's cadaver. Among her findings were:
1. Ovaloid hole, 2.0 x 5.0 cm. dms., with blackened edges (1.8 x 1.3 cms. span), on the right side of the mouth,
above the edge of the upper lip
On March 14, 1996, police investigators accompanied by one of appellant's brother as well as prosecution
witness Julio Bayacsan, a friend of appellant, went to Kayapa, Nueva Vizcaya, to invite appellant to shed light
on the slaying of Nemesio. The law enforcers found appellant selling bread at Kayapa and brought him back to
La Trinidad, Benguet. 46
Witness Bayacsan testified that shortly after they arrived from Kayapa, he had an opportunity to talk with
appellant at the La Trinidad Police Station. There, appellant disclosed to this witness that he shot and killed
Nemesio. 47 Bayacsan, however, did not inform the police about appellant's revelation as he considered
appellant his good friend. 48
xxx xxx xxx
3. Exit hole on the left side of the mouth, 5.0 x 1.3 cm. dms., with avulsion of the upper lip on the left side
xxx xxx xxx
Prosecution witness Pauline Gumpic, the victim's sister, testified that she and appellant had a private talk, while
the latter was in police custody, and appellant admitted to her that he killed her brother. 49 Gumpic declared
that appellant revealed to her that he shot Nemesio for having illicit relations with appellant's wife and failing to
ask for his forgiveness. 50
SPO4 Arthur Bomagao 51 of the La Trinidad police, who headed the team that investigated the fatal shooting
of Nemesio, declared on the stand that appellant voluntarily admitted to him that he shot the victim with a .38
caliber handgun. 52 Bomagao further testified that appellant surrendered to him the letters of Wilma Grace,
wherein the latter admitted her affair with Nemesio. 53
107
Appellant interposed the defense of alibi. Sometime during the last week of February 1996, he said, he entered
into a partnership with a friend and fellow baker, Ben Anoma, to operate a bakery in Kayapa, Nueva Vizcaya.
54 Appellant claimed that he was having a hard time operating his bakeshop in La Trinidad as he had no
helpers. When Anoma proposed a business arrangement, he added, he immediately seized the opportunity. 55
On March 8, 1996, he and Anoma then transferred his equipment to Anoma's bakery in Kayapa, 56 which is
some four (4) to five (5) hours away from La Trinidad, according to appellant. He averred that he was baking
bread with Anoma in Kayapa on the night Nemesio was killed. 57 Under oath, appellant said that he never left
Kayapa since his arrival on March 8, 1996. He and Anoma were engrossed in baking and marketing their
produce, he testified, until the policemen from La Trinidad brought him back to Benguet for questioning on
March 14, 1996. 58
3. P50,000.00 as death compensation established by jurisprudence; and
4. P50,000.00 as and for moral damages; and
5. P20,000.00 as attorney's fees.
Costs against the accused.

Defense witness Ben Anoma corroborated appellant's alibi. Anoma declared that during the last week of
February 1996, he met with appellant in La Trinidad. There, the witness said, he proposed a partnership with
appellant in the baking business to be based in Kayapa. 59 Appellant agreed and on March 8, 1996, they
transferred appellant's equipment to Kayapa. 60 They immediately commenced their operations and on the
evening of March 10, 1996, he and appellant baked bread at his bakery in Kayapa until 11:00 p.m., when they
rested for the night. 61
SO ORDERED in Chambers this 18th day of February 1999 at La Trinidad, Benguet, Philippines. 62
Both the prosecution and the defense filed their respective motions for reconsideration. The prosecution sought
the imposition of the death penalty. 63 The defense prayed for acquittal on the ground of reasonable doubt.
The trial court disbelieved appellant's defense and sustained the prosecution's version. Its initial judgment reads:
On June 2, 1999, the trial court granted the prosecution's motion. It amended its judgment to read as follows:
WHEREFORE, premises considered, the accused June Ignas is hereby found GUILTY beyond reasonable doubt
of the crime of MURDER as defined and penalized under Article 248 of the Revised Penal Code, and
considering the aggravating circumstances of treachery, nighttime and the special aggravating circumstance of
the use of an unlicensed firearm, without any mitigating circumstance, he is hereby sentenced to suffer the
penalty of Reclusion Perpetua. He is further sentenced to pay the heirs of the VICTIM the following sums:
WHEREFORE, premises considered, the accused June Ignas is hereby found GUILTY beyond reasonable doubt
of the crime of MURDER as defined and penalized under Article 248 of the Revised Penal Code, and
considering the aggravating circumstances of treachery, nighttime and the special aggravating circumstance of
the use of an unlicensed firearm, without any mitigating circumstance, he is hereby sentenced to suffer the
penalty of death by lethal injection. He is further sentenced to pay the heirs of the victim the following sums:
1. P150,000.00 for funeral expenses and those incurred for and during the wake;
1. P150,000.00 for funeral expenses and those incurred for and during the wake;
2. P1,800,000.00 for unearned income;
108
2. P2,040,000.00 for unearned income;
THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE ALLEGED
EXTRA-JUDICIAL ADMISSIONS MADE BY ACCUSED-APPELLANT DESPITE ITS BEING HEARSAY
IN NATURE AND IN VIOLATION OF HIS RIGHTS UNDER CUSTODIAL INVESTIGATION.
3. P50,000.00 as death compensation established by jurisprudence; and

III
4. P50,000.00 as and for moral damages; and
5. P20,000.00 as attorney's fees.
Costs against the accused.
SO ORDERED in Chambers. 64
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING PROBATIVE VALUE TO THE DEFENSE OF
ALIBI INTERPOSED BY ACCUSED-APPELLANT.
IV
ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT IS GUILTY, THE TRIAL COURT

GRAVELY ERRED WHEN IT RULED THAT THE KILLING OF THE DECEASED WAS ATTENDED BY
EVIDENT PREMEDITATION, TREACHERY AND NIGHTTIME.
Hence, this automatic review, with appellant imputing the following errors to the court a quo:
V
I
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF MURDER DESPITE THE WEAKNESS OF THE
CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT APPRECIATED THE ALLEGED
USE OF AN UNLICENSED .38 CALIBER FIREARM AS AN AGGRAVATING CIRCUMSTANCE IN THE
COMMISSION OF THE CRIME OF MURDER WITHOUT ANY FACTUAL AND LEGAL BASIS.
VI
II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT APPRECIATE IN FAVOR
OF THE ACCUSED-APPELLANT THE MITIGATING CIRCUMSTANCES OF IMMEDIATE
109
VINDICATION OF A GRAVE OFFENSE, PASSION AND OBFUSCATION AND VOLUNTARY

SURRENDER.
homicide. Any conviction should, thus, fall under the scope and coverage of Article 249 67 of the Revised Penal
Code. TDCAIS
VII
As for the separate case for illegal possession of firearm, we agree with the trial court's order to dismiss miss the
information for illegal possession of firearm and ammunition in Criminal Case No. 97-CR-2753. 68 Under R.A.
No. 8294, 69 which took effect on July 8, 1997, where murder or homicide is committed with the use of an
unlicensed firearm, the separate penalty for illegal possession of firearm shall no longer be imposed since it
becomes merely a special aggravating circumstance. 70 This Court has held in a number of cases 71 that there
can be no separate conviction of the crime of illegal possession of firearm where another crime, as indicated by
R.A. No. 8294, is committed. Although R.A. No. 8294 took effect over a year after the alleged offense was
committed, it is advantageous to the appellant insofar as it spares him from a separate conviction for illegal
possession of firearms and thus should be given retroactive application. 72
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT AWARDED EXCESSIVE

DAMAGES IN THE FORM OF FUNERAL EXPENSES AND UNEARNED INCOME OF THE DECEASED
WHICH WERE NOT SUFFICIENTLY PROVEN. 65
Appellant's assigned errors may be reduced to the following pertinent issues: (1) the nature of the crime
committed, if any; (2) the sufficiency of the prosecution's evidence to prove appellant's guilt; (3) the correctness
of the penalty; and (4) the propriety of the damages awarded.
1. Murder or Homicide
Assuming arguendo that the evidence on record suffices to sustain the appellant's conviction for the unlawful
killing of Nemesio Lopate, the question arises: Was the killing murder as found by the trial court or mere
homicide? Note that the amended information under which the appellant stands charged does not, unlike the
original information, charge appellant with murder but with mere "unlawful killing" albeit through the use of an
unlicensed firearm. Note further that the amended information does not definitely and categorically state that
the "unlawful killing" was attended by the aggravating or qualifying circumstances of treachery, evident
premeditation, and nocturnity.
The 2000 Revised Rules of Criminal Procedure requires that the qualifying and aggravating circumstances must
be specifically alleged in the information. 66 Although the Revised Rules of Criminal Procedure took effect
only on December 1, 2000 or long after the fatal shooting of Nemesio Lopate, as a procedural rule favorable to
the accused, it should be given retrospective application. Hence, absent specific allegations of the attendant
circumstances of treachery, evident premeditation, and nocturnity in the amended information, it was error for
the trial court to consider the same in adjudging appellant guilty of murder. As worded, we find that the
amended information under which appellant was charged and arraigned, at best indicts him only for the crime of
2. Sufficiency of the Prosecution's Evidence
But is the prosecution's evidence sufficient to sustain a conviction for homicide?
Appellant primarily contest the accuracy of the identification made by the prosecution witnesses who testified
that they saw him at the locus criminis, tucking a gun in his pants and casually walking away. For one, he
contends that the prosecution witnesses who were present at the scene did not in fact see appellant as the person
who allegedly shot the victim. Witness Marlon Manis was not certain that the person he saw walking away from
the fallen victim was appellant. As per Manis' own admission, he merely presumed that it was appellant. As to
witness Annie Bayanes, her identification of appellant as the assailant was equally doubtful. The fact is she did
not see the alleged gunman's face, considering that the only illumination on the scene was a vehicle's taillight.
Appellant stresses that both Bayanes and Manis were in a state of excitement and nervousness as a result of the
incident, hence the resultant commotion and fear distracted their powers of observation. Appellant insists that
given these considerations, the testimonies of Bayanes and Manis failed to show that he was at the scene of the
crime, much less prove that he was the gunman.
110
For the appellee, the Office of the Solicitor General (OSG) contends that the failure of Manis to see the actual
shooting is irrelevant, as such was not the purpose for which his testimony was offered in evidence. Rather,
Manis' testimony was meant to provide circumstantial evidence tending to show the physical description of
Nemesio's attacker, and not as an eyewitness' testimony to positively identify said assailant. Neither was
Bayanes presented to testify as an eyewitness to the shooting, but to declare that she got a clear look at the face
of the suspected gunman.
We note that at the heart of the prosecution's case is the familiarity of Annie Bayanes' and Marlon Manis with
appellant. Absent this familiarity, the prosecution's theory that circumstantial evidence shows that appellant
killed Nemesio would collapse like a house of cards. It was precisely this familiarity with appellant, which
enabled said witnesses to recognize him as the person tucking a gun in his waistband and walking away from
the fallen victim. Bayanes had known appellant for some ten (10) years before the incident and even described
him as a "good man." 73 She was only five or six meters away from the scene of the crime and was able to
fully look at the face of the person tucking a gun in his pants and walking away. Familiarity with the physical
features, particularly those of the face, is actually the best way to identify the person. 74 That the only
illumination in the area came from the taillight of a parked vehicle and the lights on the roof of the bagsakan
does not discredit her account. We have held that moonlight, 75 starlight, 76 kerosene lamps, 77 a flashlight,
78 and lights of passing vehicles 79 may be adequate to provide illumination sufficient for purposes of
recognition and identification. Under the circumstances of these cases, this Court believes that Bayanes was in
the position and had a fair opportunity to identify appellant as the person leaving the crime scene with a gun
tucked in his waist.
Her testimony was buttressed by that of witness Marlon Manis. A former neighbor of appellant, he had known
appellant since 1993. He was a frequent customer at appellant's bakery. In the rural areas, people tend to be
more familiar with their neighbors. This familiarity may extend to body movements, which cannot easily be
effaced from memory. Hence, Manis' testimony that he could recognize appellant even just from his build and
manner of walking is not improbable. His declaration that he was some twenty-five (25) meters away from the
person walking away from the victim does not make recognition far-fetched. Once a person has gained
familiarity with another, identification is an easy task, even from that distance. 80
Evidence should only be considered for the purpose it was formally offered. 81 As the Solicitor General points
out, the statements of Bayanes and Manis were not offered to positively identify appellant as the assailant, but
to provide circumstantial evidence concerning Nemesio's assailant, tending to prove that appellant did shoot the
victim. Thus, the court a quo committed no reversible error in giving weight and credence to the testimonies of
Bayanes and Manis for the stated purposes therefor.
Appellant next assails the testimonies of the following prosecution witnesses: (1) Pauline Gumpic for being
inconsistent and flawed with contradictions; (2) Annie Bayanes and Julio Bayacsan for their unexplained delay
in giving their respective sworn statements to the police; and (3) Mona Barredo for "flip-flopping" with respect
to the alleged admission to her by appellant and how the police investigators knew about said admission, after
she claimed that she did not tell anyone about his revelation. Appellant submits that the trial court erred in
giving weight to the aforementioned testimonies.
For appellee, the OSG argues that with respect to Gumpic's alleged contradictions, they refer only to
unimportant and collateral matters; they do not affect her credibility. With respect to the delay or vacillation by
Bayacsan and Bayanes in giving their statements to the authorities, the OSG points out that a reading of their
declarations in court will show that the alleged delay was adequately explained. As to Barredo's testimony, a
closer reading of her supposed "flip-flopping" shows that the alleged contradictions were due to an honest
misapprehension of fact on her part. HCEcaT
When the issue boils down to the credibility of witnesses, the appellate court will not generally disturb the
findings of the trial court because the latter is in the vantage position of observing witnesses through the various
indicia of truthfulness or falsehood. 82 However, this rule is not absolute. One exception is where the judge
who wrote the decision did not personally hear the prosecution's evidence. 83 In this case, the records show
that Judge Angel V. Colet, who authored the assailed decision, took over from Judge Benigno M. Galacgac only
on April 29, 1997 or after the witnesses for the prosecution had testified. It does not follow, however, that a
judge who was not present at the trial cannot render a just and valid judgment. The records and the transcripts of
stenographic notes are available to him as basis for his decision.
After going over the transcripts of the witnesses' testimonies, we find no reason to disturb the findings of the
trial court. With respect to the statements of Gumpic, we agree with the Solicitor General that alleged
inconsistencies refer only to irrelevant and collateral matters, which have nothing to do with the elements of the
crime. It is axiomatic that slight variations in the testimony of a witness as to minor details or collateral matters
do not affect his or her credibility as these variations are in fact indicative of truth and show that the witness
111
was not coached to fabricate or dissemble. 84 An inconsistency, which has nothing to do with the elements of a
crime, is not a ground to reverse a conviction. 85
We likewise find no basis for appellant's contention that Bayanes and Bayacsan failed to give a satisfactory
explanation for the delay or vacillation in disclosing to the authorities what they knew. Bayanes gave a
satisfactory reason for her delay in reporting to the authorities what she knew. She had simply gone about her
normal business activities for some months, unaware that a case had been filed concerning the killing of
Nemesio. It was only nine (9) months after the incident that she read a notice for help posted by the victim's
relatives at the Trading Post, appealing to possible witnesses to the killing to come forth and assist them in their
quest for justice. It was only then that she decided to reveal to the authorities what she knew.
As to Bayacsan, he candidly admitted in court that he considered appellant his friend and he wanted to protect
him and hence, he only disclosed appellant's admission to him when the police started questioning him. There is
no rule that the suspect in a crime should immediately be named by a witness. 86 Different people react
differently to a given situation and there is no standard form of human behavior when one is confronted with a
strange, startling, or frightful experience. 87 The Court understands the natural reluctance or aversion of some
people to get involved in a criminal case. 88 More so where, as in these cases, a townmate of Bayanes and
Bayacsan is involved. We have taken notice that when their townmates are involved in a criminal case, most
people turn reticent. 89 Hence, the failure of Bayanes and Bayacsan to immediately volunteer information to
the police investigators will not lessen the probative value of their respective testimonies. The delay, having
been satisfactorily explained, has no effect on their credibility. 90
We have likewise closely scrutinized the testimony of Mona Barredo regarding the alleged admission by
appellant to her that he killed the victim. We find nothing "flip-flopping" about her testimony. Instead, we find a
witness who admitted she was "nervous" that she might not be able to answer all the questions. 91 Said
nervousness was engendered by her erroneous belief that to be a credible witness, she must have personal
knowledge of the crime. 92 Even the most candid witnesses make mistakes and may give some contradictory
or inconsistent statements, but such honest lapses need not necessarily affect their credibility. Ample margin
should be accorded a witness who is tension-filled with the novelty of testifying before a court. 93
Appellant further contends that the trial court erred in giving credence to the verbal admissions of guilt he made
to Gumpic and SPO4 Bomagao inside the police station since said admissions are inadmissible in evidence as
uncounseled confessions.
The OSG submits that said verbal admissions of complicity, as well as those made to appellant to Bayacsan and
Barredo, are admissible as statements forming part of the res gestae. We agree on this point with the OSG.
The requisites of res gestae are: (1) the principal act or res gestae must be a startling occurrence; (2) the
statement is spontaneous or was made before the declarant had time to contrive or devise a false statement, and
the statement was made during the occurrence or immediately prior or subsequent to thereto; and (3) the
statement made must concern the occurrence in question and its immediately attending circumstances. 94 All
these elements are present in appellant's verbal admission to Barredo that he killed the victim when he went to
the latter's house half an hour after the fatal shooting of Nemesio.
The verbal admission by appellant to Barredo was made before appellant had the time and opportunity to
contrive a falsehood. Similar statements have been held to be part of the res gestae: (1) a child's declaration
made an hour after an alleged assault; 95 (2) the testimony of a police officer as to what the victim revealed to
him some 30 minutes after the commission of an alleged crime; 96 and (3) a victim's declaration made some 5
to 10 minutes after an alleged felony took place. 97 Note that since appellant's admission was not solicited by
police officers in the course of a custodial investigation, but was made to a private person, the provisions of the
Bill of Rights on custodial investigation do not apply. The Rules of Court 98 provides that an admission made to
a private person is admissible in evidence against the declarant. 99
Prosecution's evidence here is admittedly circumstantial. But in the absence of an eyewitness, reliance on
circumstantial evidence is inevitable. 100 Resort thereto is essential when the lack of direct evidence would
result in setting a felon free. 101
Circumstantial evidence suffices to convict if the following requisites are met: (1) there is more than one
circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt. 102 In our mind, the following
112
pieces of circumstantial evidence show with moral certainty that appellant was responsible for the death of
Nemesio:
1. Appellant had the motive to kill Nemesio Lopate for having an affair with his wife, and appellant had openly
expressed his desire and intention to do so;
2. At around 10:00 p.m. of March 10, 1996, Annie Bayanes and Marlon Manis heard two gun shots at the
Trading Post, La Trinidad, Benguet and saw Nemesio Lopate fall to the ground;
3. Bayanes saw appellant behind the victim, tucking a gun into his waistband, and walking away;
4. From another angle, Manis also saw a person whose gait and built resembled that of appellant walking away
from the crime scene;
5. At around 10:30 p.m. of March 10, 1996, appellant went to the house of Mona Barredo, brought out a
handgun, emptied it of two spent .38 caliber shells and instructed Barredo to throw the shells out of the window,
which she did;
The foregoing circumstances clearly show that appellant had the motive, the opportunity, and the means to
commit the crime at the place and time in question. Simply put, the circumstantial evidence adduced by the
prosecution has successfully overcome the claim of innocence by appellant. Under the proved circumstances,
appellant's defense of alibi is untenable. More so, in this situation where prosecution witness Bayanes
unflinchingly declared that she saw appellant standing behind the victim, tucking a gun in his pants, moments
after the latter was shot. As we held in People v. Salveron, 103 and reiterated in People v. Sesbreo, 104
where an eyewitness saw the accused with a gun, seconds after the gunshot and after the victim fell to the
ground, the reasonable conclusion is that said accused killed the victim.
Appellant's alibi cannot prevail over the positive testimony of Bayanes concerning appellant's identification and
presence at the crime scene. Basic is the rule that for alibi to prosper, the accused must prove that he was
somewhere else when the crime was committed and that it was physically impossible for him to have been at
the scene of the crime. 105 Physical impossibility refers to the distance between the place where the appellant
was when the crime transpired and the place where it was committed, as well as the facility of access between
the two places. 106 In these cases, the defense admitted that the distance between La Trinidad, Benguet and
Kayapa, Nueva Vizcaya is 79 kilometers, which can be negotiated in 4 or 5 hours. 107 Clearly, it was not
physically impossible for appellant to be at the locus criminis at the time of the killing. Hence, the defense of
alibi must fail.
In sum, we find that the prosecution's evidence suffices to sustain the appellant's conviction for homicide.
6. Appellant then told Barredo that he had shot and killed his wife's paramour, after which he stayed at
Barredo's house for the night;
3. Crime and its Punishment
7. On March 11, 1996, Dr. Doris C. Jovellanos, Municipal Health Officer of La Trinidad, Benguet recovered a .
38 caliber slug from Nemesio's corpse and found two (2) bullet entry wounds on the said cadaver;
As appellant can only be convicted of homicide, it follows that he cannot, under the provisions of RA No. 7659,
be sentenced to suffer the death penalty. The penalty for homicide under Article 249 of the Revised Penal Code
is reclusion temporal. Our task now is to determine whether there are aggravating or mitigating circumstances
which could modify the penalty.
8. On March 18, 1996, police investigators, assisted by Barredo, recovered two (2) spent .38 caliber shells from
Barredo's sweet potato patch, immediately outside her residence wherein appellant had slept a week before.
113
More specifically, may the special aggravating circumstance of use of an unlicensed firearm be taken against
the appellant?
Appellant argues that the trial court erred in appreciating the special aggravating circumstance of use of
unlicensed firearm in the present case. Like the killing, said aggravating circumstance must likewise be proved
beyond reasonable doubt, says the appellant. On this point, he adds, the prosecution failed to adduce the
necessary quantum of proof. cHDEaC
We find merit in the appellant's contentions. It is not enough that the special aggravating circumstance of use of
unlicensed firearm be alleged in the information, the matter must be proven with the same quantum of proof as
the killing itself. Thus, the prosecution must prove: (1) the existence of the subject firearm; and (2) the fact that
the accused who owned or possessed it does not have the corresponding license or permit to own or possess the
same. 108 The records do not show that the prosecution presented any evidence to prove that appellant is not a
duly licensed holder of a caliber .38 firearm. The prosecution failed to offer in evidence a certification from the
Philippine National Police Firearms and Explosives Division to show that appellant had no permit or license to
own or possess a .38 caliber handgun. Nor did it present the responsible police officer on the matter of licensing
as a prosecution witness. Absent the proper evidentiary proof, this Court cannot validly declare that the special
aggravating circumstance of use of unlicensed firearm was satisfactorily established by the prosecution. Hence
such special circumstance cannot be considered for purposes of imposing the penalty in its maximum period.
Coming now to the obverse side of the case, is the appellant entitled to benefit from any mitigating
circumstance?
Appellant, firstly contends that assuming without admitting that he is guilty, the lower court should have
considered at least the mitigating circumstance of immediate vindication of a grave offense as well as that of
passion and obfuscation. Appellant points out that the victim's act of maintaining an adulterous relationship with
appellant's wife constituted a grave offense to his honor, not to mention the shame, anguish, and anxiety he was
subjected to. Even the mere sight of the victim must have triggered an uncontrollable emotional outburst on
appellant's part, so that even a chance meeting caused in him an irresistible impulse powerful enough to
overcome all reason and restraint. Secondly, appellant points out that the trial court failed to consider his
voluntary surrender as a mitigating circumstance.
The Solicitor General counters that there was literally no "immediate vindication" to speak of in this case.
Appellant had sufficient time to recover his serenity following the discovery of his wife's infidelity. Nor could
passion and obfuscation be appreciated in appellant's favor because the killing was not proximate to the time of
the offense. Appellant became aware of the treatment offensive to his dignity as a husband and to the peace and
tranquillity of his home two weeks earlier. This interval between the revelation of his wife's adultery and the
fatal shooting was ample and sufficient for reason and self-control to reassert themselves in appellant's mind. As
to the mitigating circumstance of voluntary surrender, the OSG stresses that his supposed surrender at Kayapa,
Nueva Vizcaya was actually due to the efforts of law enforcers who came looking for him. There he did not
resist, but lack of resistance alone is not tantamount to voluntary surrender, which denotes a positive act and not
merely passive conduct.
According to the OSG, for the mitigating circumstance of vindication of a grave offense to apply, the
vindication must be "immediate." This view is not entirely accurate. The word "immediate" in the English text
is not the correct translation of the controlling Spanish text of the Revised Penal Code, which uses the word
"proxima." 109 The Spanish text, on this point, allows a lapse of time between the grave offense and the actual
vindication. 110 Thus, in an earlier case involving the infidelity of a wife, the killing of her paramour
prompted proximately though not immediately by the desire to avenge the wrong done, was considered an
extenuating circumstance in favor of the accused. 111 The time elapsed between the offense and the suspected
cause for vindication, however, involved only hours and minutes, not days. Hence, we agree with the Solicitor
General that the lapse of two (2) weeks between his discovery of his wife's infidelity and the killing of her
supposed paramour could no longer be considered proximate. The passage of a fortnight is more than sufficient
time for appellant to have recovered his composure and assuaged the unease in his mind. The established rule is
that there can be no immediate vindication of a grave offense when the accused had sufficient time to recover
his serenity. 112 Thus, in this case, we hold that the mitigating circumstance of immediate vindication of a
grave offense cannot be considered in appellant's favor.
We likewise find the alleged mitigating circumstance of passion and obfuscation inexistent. The rule is that the
mitigating circumstances of vindication of a grave offense and passion and obfuscation cannot be claimed at the
same time, if they arise from the same facts or motive. 113 In other words, if appellant attacked his victim in
proximate vindication of a grave offense, he could no longer claim in the same breath that passion and
obfuscation also blinded him. Moreover, for passion and obfuscation to be well founded, the following
requisites must concur: (1) there should be an act both unlawful and sufficient to produce such condition of
114
mind; and (2) the act which produced the obfuscation was not far removed from the commission of the crime by
a considerable length of time, during which the perpetrator might recover his moral equanimity. 114 To repeat,
the period of two (2) weeks which spanned the discovery of his wife's extramarital dalliance and the killing of
her lover was sufficient time for appellant to reflect and cool off.
Appellant further contests the award of P2,040,000 for loss of earning capacity as unconscionable. Since the
victim's widow could not present any income tax return of her husband to substantiate her claim that his net
income was P60,000 annually, then according to appellant, there is no basis for this award at all. At best,
appellant says, only temperate or nominal damages may be awarded.
Appellant further argues that the lower court erred in failing to consider voluntary surrender as a mitigating
circumstance. On this point, the following requirements must be satisfied: (1) the offender has not actually been
arrested; (2) the offender surrendered himself to a person in authority; and (3) the surrender was voluntary. 115
Records show, however, that leaflets and posters were circulated for information to bring the killer of Nemesio
to justice. A team of police investigators from La Trinidad, Benguet then went to Kayapa, Nueva Vizcaya to
invite appellant for questioning. Only then did he return to Benguet. But he denied the charge of killing the
victim. Clearly, appellant's claimed surrender was neither spontaneous nor voluntary.
The OSG responds that the award for loss of earning capacity has adequate basis as the prosecution presented
sufficient evidence on the productivity of the landholdings being tilled by the deceased and the investments
made by the Lopate family from their income. Hence, said the OSG, it was not a product of sheer conjecture or
speculation. Nonetheless, the OSG submits that the original amount of P1,800,000 for loss of earning capacity
should be restored as it is this amount which takes into account only a reasonable portion of annual net income
which would have been received as support by the heirs.
Absent any aggravating or mitigating circumstance for the offense of homicide the penalty imposable under Art.
64 of the Revised Penal Code is reclusion temporal in its medium period. Applying the Indeterminate Sentence
Law, the penalty which could actually be imposed on appellant is an indeterminate prison term consisting of
eight (8) years and one (1) day of prision mayor, as minimum to fourteen (14) years, eight (8) months and one
(1) day of reclusion temporal as maximum.
In setting said award at P2,040,000, amended from P1,800,000, for lost earnings, the trial court took note of the
following factors in its computations:
The Death Certificate of Nemesio Lopate shows that he died at the age of 29. 119 His widow's detailed
testimony shows that their average annual net income from vegetable farming was P60,000. 120 The victim's
share of the annual net income from the couple's farm is half thereof, or P30,000. Using the American
Expectancy Table of Mortality, the life expectancy of the victim at age 29 is set at 34 years.
4. Proper Award of Damages

Therefore, total loss of Earning Capacity (X) should be computed as follows:
Appellant and the Solicitor General are one in contending that the trial court awarded excessive actual damages
without adequate legal basis. Thus, the amount of P150,000.00 was awarded for funeral and burial expenses
without any supporting evidence on record. 116 This cannot be sustained in this review. In order for actual
damages to be recovered, the amount of loss must not only be capable of proof but must actually be proven with
reasonable degree of certainty, premised upon competent proof or best evidence obtainable of the actual amount
thereof, such as receipts or other documents to support the claim. 117 The records clearly show in this case
that only the amount of P7,000 as funeral expenses was duly supported by a receipt. 118 Hence, the award of
actual damages should be limited to P7,000 only.
X = 2/3 (80-29) x P30,000
X = 2/3 (51) x P30,000
X = 34 x P30,000
115
X = P1,020,000
Davide, Jr., C .J ., Bellosillo, Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Carpio-Morales, Callejo, Sr. and Tinga, JJ ., concur.
This amount should form part of the damages awarded to the heirs.
Corona and Azcuna, JJ ., are on leave
We sustain the award of P50,000 as indemnity ex delicto. But there being no testimony or other proof thereon,
the award of P50,000 as moral damages cannot now be sustained. Instead, temperate damages in the amount of
P25,000 should be awarded.
||| (People v. Ignas, G.R. Nos. 140514-15, [September 30, 2003], 458 PHIL 965-1000)
The award of P20,000 in attorney's fees should be maintained. Records show that the victim's widow had to hire
the services of a private prosecutor to actively prosecute the civil aspect of this case, 121 and in line with Article
2208 of the Civil Code, 122 reasonable attorney fees may be duly recovered.
WHEREFORE, the judgment of the Regional Trial Court of La Trinidad, Benguet, Branch 8, in Criminal Case
No. 96-CR-2522 is MODIFIED as follows:
Appellant June Ignas y Sanggino is found GUILTY beyond reasonable doubt of the crime of HOMICIDE as
defined and penalized under Article 249 of the Revised Penal Code, as amended. There being neither
aggravating nor mitigating circumstance, he is hereby sentenced to suffer an indeterminate penalty of ten (10)
years and one (1) day of prision mayor as minimum, to fourteen (14) years, eight (8) months, and one (1) day of
reclusion temporal as maximum.
Appellant June Ignas y Sanggino is ORDERED TO PAY the heirs of the victim, Nemesio Lopate, the following
sums: a) P7,000 as actual damages; b) P1,020,000 for loss of earning capacity; c) P50,000 as civil indemnity; d)
P25,000 as temperate damages; and e) P20,000 as attorney's fees. Costs de officio.
EN BANC
[G.R. No. L-32042. December 17, 1976.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO BENITO y RESTUBOG, accusedappellant.
RESOLUTION
AQUINO, J p:
SO ORDERED.
116
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded guilty to the
charge of murder for having shot with a .22 caliber revolver Pedro Moncayo, Jr. on December 12, 1969. The
killing was qualified by treachery and aggravated by premeditation and disregard of rank. It was mitigated by
plea of guilty.
After a mandatory review of the death sentence, this Court in its decision of February 13, 1975 affirmed the
judgment of conviction. It appreciated in Benito's favor the mitigating circumstance of voluntary surrender. The
penalty was reduced to reclusion perpetua. (People vs. Benito, 62 SCRA 351).
Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating circumstance of
immediate vindication of a grave offense and that the aggravating circumstances of disregard of rank should not
be appreciated against him.
Benito, 26, a native of Naga City, in his sworn statement, which was taken, about five hours after the shooting,
by Corporal E. Cortez and Patrolmen J. de la Cruz, Jr. and H. Roxas of the Manila Police, recounted the
background and circumstances of the tragic incident in this manner (Exh. A):
". . . alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye P. Paredes, Sampaloc,
Maynila, at ako ay Clerk 2 sa Administrative Division at ako ay nagumpisa ng pagtratrabaho sa Civil Service
magmula pa noong November 7, 1963 tuloy-tuloy hanggang November, 1965 ng ako ay nasuspende sa aking
trabaho dahil kinargohan nila ako ng 'DISHONESTY' at nasuspende ako ng 60 days at nabalik ako sa trabaho
noong January 1966 pero kinargohan uli nila ako ng 'MALVERSATION OF PUBLIC FUNDS, QUALIFIED
THEFT, ESTAFA at FALSIFICATION OF PUBLIC DOCUMENT at dinimanda din ako ng Civil Service ng
Administrative case ng 'DISHONESTY' at dinismiss na ako sa trabaho ni Commissioner Subido noong
February 16, 1966.
"At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila sa akin na sinabi ko sa inyo
ay 'fabricated' lang ang mga evidensiya at ang gumawa ho noong ay ang binaril ko kanina na si PEDRO
MONCAYO JR. Y RAMOS at naka pending pa ngayon sa City Fiscal ng Maynila kay Asst. Fiscal Magat at
iyon namang 'dismissal order' ni Commissioner Subido ay inapela ko sa Civil Service Board of Appeals.
"Magmula noong idinismiss nila ako sa aking trabaho dahil sa 'fabricated' charges ay naghirap na ako sa aking
buhay at nahihiya ako sa mga kaibigan ko. Ako ay assign(ed) sa collecting department noon at nagagalit sa akin
ang mga empleyado ng Civil Service dahil mahigpit ako sa kanila.
"Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil Service sa kalye Paredes at
nakita ko si PEDRO MONCAYO, Jr. at kinausap ko siya at tinanong ko siya na iyong kaso ko ay matagal na at
hindi pa natatapos at baka matulungan niya ako at ang sagot niya ay 'UMALIS KA NA NGA DIYAN BAKA
MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO' at umalis na ako.
"Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MANCAYO Jr. sa loob ng compound ng
Civil Service at sa harapan ng maraming tao sinabi niya na 'NAGIISTAMBAY PALA DITO ANG
MAGNANAKAW' kaya ang ginawa ko ay umalis na ako.
"Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Disyembre 12, 1969, nakita ko si PEDRO
MANCAYO Jr. na nagmamanejo noong kotse niya sa kalye P. Paredes sa tapat ng Civil Service, sinundan ko
siya at pagliko ng kotse niya sa kanto ng P. Paredes at Lepanto, Sampaloc, Maynila, ay binaril ko siya ng
walong beses at tinamaan siya at napatumba siya sa kaniyang upuan sa kotse.
"Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para sumurender at kayo nga ang dumating
kasama ninyo iyong mga kasama ninyo.
Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty shells of the
bullets which he had fired at Moncayo.
The police report contains the following background and description of the killing (Exh. B):
117
"According to the suspect, he was a former employee of the Civil Service Commission at its main office located
at P. Paredes, Sampaloc, Mla., and was assigned as Clerk 2 in the Administrative Division from Nov. 1963
continuously up to Nov. 1965 when he was suspended for 'DISHONESTY'.
'After two months, he was reinstated but was criminally charged for QUALIFIED THEFT, MALVERSATION
OF PUBLIC FUNDS ESTAFA and FALSIFICATION OF PUBLIC DOCUMENTS and administratively
charged for 'DISHONESTY' culminating in his dismissal from the Civil Service on February 1966.
"The aforecited criminal charges against the suspect was allegedly investigated by Asst. Fiscal MAGAT.
Records from the CRID, MPD, reveals that on Dec. 6, 1966, Hon. Judge ROAN of the City Court of Mla.
issued a Warrant No. E-316758 for the arrest of the suspect for the crime of ESTAFA.
"On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an order No. OA-87409 for the
arrest of the suspect for the crime of MALVERSATION OF PUBLIC FUNDS. According to the suspect, the
aforecited criminal and administrative charges filed him were allegedly instigated and contrived by the victim
and since the time of his dismissal, he was allegedly jobless.
"On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes St. and requested the victim to help him
in his cases but the former allegedly uttered to the suspect 'UMALIS KA NGA DIYAN BAKA MAY
MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO'.
"The suspect left and returned the following morning at 11:00 a.m. of Dec. 12, 1969, and when they met again,
the victim allegedly remarked in the presence of many people, 'NAGIISTAMBAY PALA DITO ANG
MAGNANAKAW'. The suspect who was humiliated and incensed, left.
"At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed with an unlicensed Cal. .22
black revolver (w/ SN-P-5317, Trademarked 'SENTINEL', SQUIRES BINGHAM MFG. CO. INC., MLA., P.I.)
loaded with nine (9) live Cal. 22 bullet in its cylinder, waited for the victim inside the Civil Service compound
at P. Paredes St., Sampaloc, Mla.
"The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No. L-10578 Mla. 69) along P.
Paredes St. The suspect with evident premeditation, surreptitiously followed the victim and when the latter's car
was at a full stop at the corner of Lepanto and P. Paredes sts. due to heavy traffic of motor vehicles, the suspect
without any warning or provocation, suddenly and treacherously shot the victim eight (8) times on the head and
different parts of the body at close range which consequently caused the latter's death on the spot inside his car.
"The suspect then fled while the victim was conveyed on board a red private car (w/ Plate No. L-55117) by his
co-employees (composed of VICTOR VILLAR, ELEUTERIO MENDOZA & FORTUNATO JOSE Jr.) to the
FEU Hospital. Unfortunately, the victim was pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40 p.m. of Dec.
12, 1969."
The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the Personnel
Transactions Division and Acting Chief, Administrative Division of the Civil Service Commission (Exh. E to E2). The accused was a clerk in the cash section, Administrative Division of the Commission, receiving P1,884
per annum (Exh. D). He started working in the Commission on November 7, 1963. cdrep
On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of Civil Service that
Benito admitted having malversed an amount between P4,000 and P5,000 from his sales of examination fee
stamps. Moncayo's report reads as follows (Exh. F):
"MEMORANDUM for
The Commissioner
Through Proper Channels
"This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative Division of this
Commission, who, as had previously been reported, malversed public funds in the amount of approximately
P5,000.00 out of his collections from the sale of examination fee stamps.
118
"I wish to state that this matter came to my attention on the evening of March 1, 1965 when Mr. Teodoro
Abarquez, Acting Cashier I, reported to me that fifty (50) money orders at P2.00 each with a total value of
P100.00 were missing from a bundle of money orders received from the Provincial Treasurer of Cotabato,
which were kept by him in one of the cabinets inside the Cashier's room.
"At that same time he also informed me that he suspected that Mr. Benito stole the missing money orders. His
suspicion arose from the fact that he found several money orders marked 'Cotabato' as their place of issue
among the cash receipts turned over to him by Mr. Benito that afternoon as his collection from the sale of
examination fee stamps. Mr. Abarquez showed to me the said money orders issued in Cotabato which were
turned over to him by Mr. Benito and after checking their serial numbers with the records of list of remittances
on file, we were able to establish definitely the fact that the said money orders were those missing.
It may be stated that at that time, Mr. Benito was assigned to work in the Cash Section and one of his duties was
to sell examination fee stamps to applicants for examinations. It was then the practice of the cashier to issue to
Mr. Benito in the morning examination fee stamps to be sold during the day and in the afternoon he turned over
to the Cashier the proceeds from the sale of stamps including the unsold stamps issued to him. After considering
the work performed by Mr. Benito, it became evident that he succeeded in malversing the amount of P100.00 by
substituting equivalent amount of money orders in the place of the cash extracted by him from his daily
collections from the sale of examination fee stamps when he clears his accountability with the Cashier.
The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and ask him whether he had
something to do with the loss of the fifty (50) money orders at P2.00 each. At first, he denied, but when I asked
him where he obtained the money orders issued in Cotabato which were included in his collections the day
preceding, he admitted having stolen the missing money orders.
"Having confessed his guilt, I then asked Mr. Benito when he started committing the said irregularity and how
much in all did he actually malversed out of his daily collections from the time that he started the anomaly. He
stated in the presence of Mr. Abarquez that he started in January, 1965 and that although he did not know
exactly the total amount malversed by him, he believed the amount to be between P4,000.00 to P5,000.00. He
also confessed that he used the money orders remitted by the Provincial Treasurer of Negros Occidental in the
amount of P3,436.00 in substituting various amounts extracted by him from his daily cash collections and used
by him for personal purposes.
"It appears from the records that the List of Remittance covering the money orders received from the Provincial
Treasurer of Negros Occidental was duly receipted by Mr. Benito. He was supposed to issue an Official Receipt
therefor in favor of the said Provincial Treasurer and then turn over to the Cashier the amount involved for
deposit to the National Treasurer. The said List of Remittance, duly signed by Mr. Benito, is enclosed for use as
evidence in this case.
"I told Mr. Benito that I cannot do anything but report the matter to the Commissioner. However, he pleaded
that he be given first an opportunity to restore the amount before I make my report in order that the penalty that
may be imposed upon him may be lessened to a certain degree. As I thought it wise in the interest of the service
to recover the amount involved, I allowed him to go and see his parents in Naga City to raise the amount in
question.
"After two weeks, Mr. Benito informed me that his parents filed an application for a loan with the Government
Service Insurance System and that the proceeds of the said loan which he intended to use in restoring the
amount malversed by him were expected to be released during the last week of May, 1965. However, when the
month of May, 1965 elapsed without the amount involved having been restored, I conferred with Mr. del Prado,
my immediate superior and asked him whether we should wait further for the release of the said loan in order
that the amount involved may be recovered. Mr. Prado consented to giving him a little more time.
"When Mr. Benito still failed to restore the amount in question by the end of June, 1965, I got hold of him on
July 5, 1965 and together with Messrs. del Prado, Abarquez, and Gatchalian, also of this Commission, brought
him before Deputy Commissioner A. L. Buenaventura and reported the entire matter to the Deputy
Commissioner. In the presence of Messrs. del Prado, Abarquez Gatchalian and myself, Mr. Benito admitted
readily and voluntarily before the Deputy Commissioner the commission of the offense of malversation of
public funds as stated above.
119
"In view of the foregoing, it is recommended that Mr. Benito be charged formally and that he be suspended
from office immediately considering the gravity of the offense committed by him.
Treasurer of Cotabato, he, however, disclaimed having substituted the same for cash collections in his sale of
examination fee stamps. He reasoned out further that he could not be charged with malversation of public funds
inasmuch as he was not then an accountable officer.
(Sgd.) PEDRO R. MONCAYO

Administrative Officer II"
Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio Buenaventura that he had
misappropriated his collections and spent the amount in nightclubs and pleasure spots and for personal
purposes. The decision dismissing him from the service reads as follows (Exh. G):
"This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash Section, Administrative Division of
this Office, for dishonesty.
"The following excerpts from the letter dated October 22, 1965 of the Commissioner of Civil Service connect
respondent with the alleged misappropriation of public funds representing his collection from the sale of
examination fee stamps and constitute the basis of the instant case against him:
'An investigation made by this Commission shows that you malversed public funds in the amount of P3,536.00
out of your collections from the sale of examination fee stamps while in the performance of your official duties
as Clerk II in the Cash Section, Administrative Division of this Office. It appears that you succeeded in
malversing the above-stated amount from your cash collections by substituting in lieu thereof money orders
worth P3,436.00 remitted to this Commission by the Provincial Treasurer of Negros Occidental which were
duly receipted for by you. It also appears that you extracted from a bundle of money orders remitted by the
Provincial Treasurer of Cotabato the amount of P100.00 in money orders which were kept in one of the cabinets
in the Cashier's room.'
"Respondent denied the charge. He explained, among others, that money orders were always kept in the
Cashier's safe and he had no access to them. Although he admitted having received money orders amounting to
P3,436.00 remitted by the Provincial Treasurer of Negros Occidental and another remittance of the Provincial
"It appears that respondent, as Clerk in the Cash Section, performs, among other duties, the selling of
examination fee stamps, receiving payments therefor, and receiving remittances in form of cash and/or money
orders from provincial treasurers in connection with examinations held in the provinces. It was also his duty to
issue official receipts for said remittances. In the course of the performance of his duties, he received said
remittances from the Provincial Treasurers of Negros Occidental and Cotabato, but no official receipts were
issued by him, as shown by the reply telegrams pertaining thereto. While records disclose that remittances from
the province of Cotabato were submitted to the Cashier of the Civil Service Commission, there is no evidence
showing that remittances from Negros Occidental were likewise submitted.
"Investigation further reveals that 50 money orders were discovered missing from the remittances of Cotabato
Provincial Treasurer which were kept in the cabinet of the Cashier. On or about March 2, 1965, the Cashier of
the Commission noticed that 15 money orders turned over by respondent as part of his collections in the sale of
examination fee stamps were among the missing money orders. This triggered off the filing of this case against
the respondent.
"On July 5, 1965, respondent admitted before the then Deputy Commissioner Alipio Buenaventura having
misappropriated an aggregate amount ranging from P3,000 to 7,000.00, which he spent in night clubs, pleasure
spot and other personal benefits. Despite the testimonies of several witnesses regarding his confession,
including that of the then Deputy Commissioner himself, respondent, when asked to take the stand, denied his
previous admission.
"Instead, he argued that the cash and accounts of the Cashier of the Civil Service Commission, when examined
by representatives of the Auditor's Office, did not indicate any shortage and therefore there was no irregularity
involved. This argument is not well taken. Inasmuch as the remittances received by respondent from said
Provincial Treasurers of Negros Occidental and Cotabato were not in turn given corresponding official receipts,
naturally, the same were not reflected on the Cashier's cash book.
120
'The weakness of respondent's defense lies not so much on its failure to establish convincingly his innocence as
its irreconciliability with established facts. Obviously, none of the circumstances in this case is consistent with
his claim of innocence. On the contrary, all of them put together produce reasonable assurance of respondent's
guilt.
"In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as charged. Wherefore, he is
dismissed from the service effective upon his receipt of this decision.
"In the interest of the service this decision is executed also on the date of his receipt of this decision."
Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision dismissing him. The
appeal was pending at the time when he assassinated Moncayo (Exh. I).
The foregoing antecedents of the assassination shed light on the remark which the victim, Moncayo, allegedly
made upon seeing Benito in the compound of the Civil Service Commission near the canteen at eleven o'clock
in the morning of December 12, 1969 (about six hours before the shooting): 'Nagiistambay pala dito and
magnanakaw." (Exh. A or 1); or, as Benito testified, Moncayo said: "Hindi ko alam na itong Civil Service pala
ay istambayan ng magnanakaw." (27 tsn December 26, 1969). cdrep
Mitigating circumstance of immediate vindication of a grave offense. Benito contends that Moncayo insulted
him when he (Moncayo) remarked that a thief was loitering in the premises of the Civil Service Commission.
Benito argues that remark "was tantamount to kicking a man already down and to rubbing salt into a raw
wound" and that, as it was made publicly and in a loud voice, he was exposed to ridicule in the presence of his
officemates.
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16, 1975,
acquitting him of the charge of malversation in connection with his alleged misappropriation of the fees
collected from the examinees of the 1974 patrolman examination. That same decision makes reference to
Benito's exoneration from the administrative charge. The court's decision reads as follows:
"The accused is charged with malversation under the following information:
'That on or about and during the period comprised between October 17, 1964, to February, 1965, inclusive, in
the City of Manila, Philippines, the said accused being then employed as Clerk I of the Civil Service
Commission, a branch of the government of the Republic of the Philippines, among whose duties were to accept
payments of fees collected from the examinees of the 1964 Patrolman examination, and by reason of his said
position received the total amount of P3,536.00, with the duty to turn over and/or account for his collections to
the cashier of the Civil Service Commission immediately or upon demand but the said accused once in
possession of the said amount of P3,536.00, with intent to defraud, despite repeated demands made upon him to
turn over and to account for the same, did then and there willfully, unlawfully and feloniously misappropriate,
misapply and convert and malverse the said amount to his own personal use and benefit, to the detriment of
public interest and to the damage and prejudice of the said Civil Service Commission in the said amount of
P3,536.00, Philippine currency.
'Contrary to law.'
"The evidence shows that the accused had an appointment as clerk in the Civil Service Commission from May
27, 1964, as clerk I, range 23 from June 1, 1965 and as clerk I, range 26 from July 23, 1965 (Exhibits A, A-1, A2). He had the duty, among others, of selling Civil Service examination-fee stamps and to receive payment
therefor, as well as to receive remittances of money orders and checks from the provincial treasurers for
payments of examination-fee stamps (Exhibit B).
"Teodoro Abarquez, a cashier of the Civil Service Commission during the period alleged in the information,
testified in his direct examination that Benito was working in his office; that one of the duties that he assigned
to him was to sell examination-fee stamps; that it was customary for him to give stamps to Benito at the start of
office hours in the morning and that Benito turned over to him the proceeds of the sale, as well as the unsold
stamps, at the close of office hours in the afternoon; that one afternoon he noticed that Benito turned over to him
121
50 money orders from Cotabato, together with some cash, as proceeds of the sale of stamps for that day; that he
remembered that he was missing money orders from one of his cabinets where he kept them; that when he
discovered that the 50 money orders were those which were missing, he reported the matter to Pedro Moncayo,
the chief administrative officer; on March 1, 1965; that the money orders were for P2.00 each, and were
payments of the examination fees from Cotabato (Exhibit F); that he discovered the loss of the 50 money orders
on February 28, 1965 and reported it to Moncayo on March 1, 1965, together with the list of missing orders
(Exhibit M); that after receiving the report, Moncayo called Benito to the office of Abarquez where he admitted
taking the missing money orders; that Moncayo submitted a memorandum to the Commissioner, dated October
21, 1965, after giving Benito a chance to refund the value of the money orders (Exhibit O). Alipio
Buenaventura, acting Deputy Commissioner at the time, and Eliseo S. Gatchalian, budget officer, testified that
when Benito was confronted with the report of Moncayo and Abarquez, he admitted that he misappropriated
about P3,000.00 because of bad company and that he asked for a chance to refund the money.
"Under cross-examination, Abarquez elucidated his testimony in his direct examination and explained that when
Benito turned over the proceeds of the sale of stamps for that particular day, he kept the sum of P100.00 and
replaced it with the 50 money orders that he had taken from the cashier's office to cover up the money that he
had pocketed. When he was asked when he discovered that Benito substituted the 50 money orders from
Cotabato, he answered that he checked them the following night (March 2, 1965) with the list of money orders
remitted by the Provincial treasurer (Exhibits F, F-1); but when he was confronted with his affidavit which he
executed on April 18, 1966 (Exhibit R), he reluctantly admitted that he had only verified 15 money orders
missing as of April 18, 1966 and that he did not keep any record of the money and the money orders given to
him by Benito on March 1, 1965.
"The testimony of Teodoro Abarquez, upon which the prosecution has built its case, is too weak and shaky to
sustain a finding of guilt because of his glaring inconsistencies, contradictions and gaps in memory. The
prosecution has failed to present convincing evidence that the 50 money orders were even lost: According to
Abarquez he had only verified the loss of 15 on April 18, 1966, although he testified earlier that he determined
the loss of 50 the night after March 1, 1965.
"The examiners of the Civil Service Commission and the auditors of the General Auditing Office did not find
any irregularity in the cash accountability of Benito, according to Abarquez. This was corroborated by Romeo
Jarabelo, auditor of the Commission on Audit and Miguel Games, auditing examiner assigned to the Civil
Service Commission, who testified for the accused. Benito was in fact exonerated of the administrative charge
filed against him for the same transaction (Exhibit E).
"In fact, the testimony of Abarquez under cross-examination that he has not issued any official receipt for the 50
money orders and his inability to prove that he deposited them with the bureau of Treasury gives rise to the
suspicion that other persons, not the accused, may have stolen the 50 missing money orders. Even without
taking into account the testimony of the accused, who denied the testimonies of the witnesses for the
prosecution, the court believes that the prosecution has failed to prove the guilt of the accused.
"WHEREFORE, judgment is hereby rendered acquitting the accused, with costs de oficio."
He also admitted that the room where he kept the money orders in an unlocked drawer was also occupied by
two other persons, and that this was the first time that he had not followed the usual procedure of keeping them
in the safe. He further admitted that although regular examinations were conducted during the period of October
1, 1964 to February 28, 1965 by the examiners of the Civil Service Commission and the auditors of the General
Auditing Office, they did not find any shortage in the accounts of Benito.
"Finally, when the Court asked him what happened to the 50 money orders, at first he hinted that they were not
deposited with the Bureau of Treasury because they were reported missing; but when pressed further, he said
that he deposited them, but did not issue any official receipt for them. When asked if he had any evidence to
show that they were actually deposited, he admitted that he could not even remember when he deposited them.
The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to the mitigating
circumstance of vindication of a grave offense because it was not specifically directed at Benito. The
prosecution notes that the remark was uttered by Moncayo at eleven o'clock in the morning. According to
Benito's testimony (not consistent with his confession), he saw Moncayo three hours later or at two o'clock in
the afternoon and inquired from him about his case and Moncayo said that he had already submitted his report
and he could not do anything more about Benito's case (26 tsn). As already stated, the assassination was
perpetrated at around five o'clock in the afternoon of the same day.
122
Assuming that Moncayo's remark was directed at Benito, we see no justification under the circumstances
recited above for changing our prior opinion that the mitigating circumstances of "haber ejecutado el hecho en
vindicacion proxima de una ofensa grave, causada al autor del delito," cannot be appreciated in Benito's favor.
As aptly stated by the ponente, Justice Esguerra, Benito "had more than sufficient time to suppress his emotion
over said remark if he ever did resent it."
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de Espaa) no ha
apreciado la proximidad . . . cuando la ofensa se realiz" por la maana y el delito tuvo lugar por la tarde
(Sentencia de 11 noviembre 1921); por regla general no es proxima cuando transcurre tiempo suficiente para la
razon recobre su imperio sobreponiendose a la pasion (Sentencias de 28 mayo 1882, 4 noviembre 1893, 24
junio, 1908 etc.) . . . Si falta el requisito de la proximidad debe desestimarse (Sentencia de 3 julio 1950). Exige
gravedad en la ofensa y proximidad en la reaccion." (Note 9, 1 Cuello Calon, Derecho Penal. 1975 Ed. p. 564).
The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante en favor del autor
de un homicido cometido 'algunas horas despues de haberle invitado el interfecto a renir y golpeado en el pecho
con las manos', porque el tiempo transcurrido entre los golpes y la muerte fue suficiente para que el animo del
reo se serenase (Sentencia de 24 junio 1908, Gaceta 28 Agosto 1909, IV-V Enciclopedia Juridica Espaola
1182).
The six-hour interval between the alleged grave offense committed by Moncayo against Benito and the
assassination was more than sufficient to enable Benito to recover his serenity. But instead of using that time to
regain his composure, he evolved the plan of liquidating Moncayo after office hours. Benito literally ambushed
Moncayo just a few minutes after the victim had left the office. He acted with treachery and evident
premeditation in penetrating the cold-blooded murder. LexLib
Aggravating circumstance of disregard of rank. Benito contends that disregard of rank should not be
considered against him because there was no evidence that he "deliberately intended to offend or insult the
rank" of Moncayo. That contention has no merit.
It should be borne in mind that the victim was a ranking official of the Civil Service Commission and that the
killer was a clerk in the same office who resented the victim's condemnatory report against him. In that
situation, the existence of the aggravating circumstance of "desprecio del respeto que por la dignidad mereciere
el ofendido" is manifest.
The instant case is similar to a case where the chief of the secret service division killed his superior, the chief of
police (People vs. Hollero, 88 Phil. 167) and to the killing of the acting Spanish consul by his subordinate, the
chancellor of the consulate, who had misappropriated the funds of the consulate, which misappropriation was
discovered by the victim (People vs. Martinez Godinez, 106 Phil. 597, 606). In these two cases the murder was
aggravated by disregard of rank.
WHEREFORE, the motion for reconsideration is denied.
SO ORDERED.
||| (People v. Benito y Restubog, G.R. No. L-32042 (Resolution), [December 17, 1976], 165 PHIL 871-886)
The facts of the strongly suggest that what really impelled Benito to assassinate Moncayo was not the latter's
alleged defamatory remark that Civil Service Commission was a hangout for a thief or for thieves but the
refusal of Moncayo to change his report so as to favor Benito. Benito did not act primarily to vindicate an
alleged grave offense to himself but mainly to chastise Moncayo for having exposed the alleged anomalies or
defraudation committed by Benito and for obstinately refusing to change his report.
FIRST DIVISION
123
[G.R. No. 4971. September 23, 1909.]
THE UNITED STATES, plaintiff, vs. AUGUSTUS HICKS, defendant.
For about five years, from September, 1902, to November, 1907, Augustus Hicks, an Afro-American, and
Agustinal Sola, a Christian Moro woman, illicitly lived together in the municipality of Parang, Cotabato, Moro
Province, until trouble arising between them in the last-mentioned month of 1907, Agustina quitted Hick's
house, and, separating from him, went to live with her brother-in-law, Lues Corrales. A few days later she
contracted new relations with another negro named Wallace Current, a corporal in the Army who then went to
live with her in the said house.
Solicitor-General Harvey for plaintiff.
Jose Robles Lahesa for defendant.
SYLLABUS
1. MURDER; "ALEVOSIA;" PREMEDITATION; PENALTY. Where the act of causing the violent death of
a woman has already been qualified by the specific circumstance of treachery (alevosia), if premeditation is also
present therein it can only produce the effect of a generic aggravation circumstance which, together with
another of the same class, required the imposition in the maximum degree of the penalty which the law fixes for
the crime.
2. ID.; LOSS OF REASON AND SELF-CONTROL. The causes which produce in the mind loss of reason
and self-control, and which lessen criminal responsibility, are those which originate from lawful sentiments, not
such as arise from vicious, unworthy, and immoral passions; therefore, in the present case it is not proper to
consider that mitigating circumstance 7 of article 9 of the Penal Code was present.
DECISION
TORRES, J p:
On the 21st of December following, at about 7.30 p. m., Augustus Hicks together with a soldier named Lloyd
Nickens called at said house, and from the sala called out to his old mistress who was in her room with Corporal
Current, and after conversing with her in the Moro dialect for a few minutes, asked the corporal appeared at the
door of the room, and after a short conversation, Current approached Hicks and they shook hands, when Hicks
asked him the following question: "Did I not tell you to leave this woman alone?," to which Current replied:
"That is all right, she told me that she did not want to live with you any longer, but if she wishes, she may quit
me, and you can live with her." The accused then replied: "God damn, I have made up my mind;" and as
Corporal Current saw that Hicks, when he said this, was drawing a revolver from his trousers' pocket, he caught
him by the hand, but the latter, snatching his hand roughly away, said: "Don't do that," whereupon Current
jumped into the room, hiding himself behind the partition, just as Hicks drew his revolver and fired at Agustina
Sola who was close by in the sala of the house. The bullet struck her in the left side of the breast; she fell to the
ground, and died in a little more than an hour later.
Upon hearing the shot Edward Robinson, who was also in the house, went to render assistance and wrested the
weapon from the hand of the accused. The latter immediately fled from the house and gave himself up to the
chief of police of the town, H. L. Martin, asking him to lock him up in jail; and, when a few minutes later a
policeman came running in and reported that Hicks and fired a shot at Agustina, the said chief of police caused
Hicks to be arrested. The latter, when once in jail, threw eight revolver cartridges out of the window; these were
picked up by a policeman who reported the occurrence and delivered the cartridges to chief.
In view of the foregoing the provincial fiscal on the 8th of February, 1908, filed a complaint with the Court of
First Instance of said province charging Augustus Hicks with the crime of murder. Proceedings were instituted,
the trial court, after hearing the evidence adduced, entered judgment on the 10th of September of the same year,
sentencing the accused to the penalty of death, to be executed according to the law, to indemnify the heirs of the
deceased in the sum of P1,000, and to pay the costs. The case has been submitted to this court for review.
124
The above-stated facts, which have been fully proven in the present case, constitute the crime of murder,
defined and punished by article 403 of the Penal Code, in that the woman Agustina Sola met a violent death,
with the qualifying circumstance of treachery (alevosia), she being suddenly and roughly attacked and
unexpectedly fired upon with a 45-caliber revolver, at close, if not point blank range, while the injured woman
was unarmed and unprepared, and at a time when she was listening to a conversation, in which she was
concerned, between her aggressor and a third person, and after usual and customary words had passed between
her and her aggressor. From all of the foregoing it is logically inferred that means, manners, and forms were
employed in the attack that directly and specially insured the consummation of the crime without such risk to
the author thereof as might have been offered by the victim who, owing to the suddenness of the attack, was
doubtless unable to flee from the place where she was standing, or even escape or divert the weapon.
The accused, Augustus Hicks, pleaded not guilty, but notwithstanding his exculpatory allegations which were
certainly not borne out at the trial, the evidence in the case is absolutely at variance therewith and conclusively
establishes, beyond peradventure of doubt, his culpability as the sole fully convicted author of the violent and
treacherous death of his former mistress, Agustina Sola.
should be taken into consideration. The last-mentioned circumstance appears proven from the testimony of
several witnesses who were examined at the trial of the case.
Inasmuch as in the present case the crime has already been qualified as committed with treachery, the
circumstance of premeditation should only be considered as a merely generic one. Premeditation is, however,
manifest and evident by reason of the open acts executed by the accused. According to the testimony of Charles
Gatchey and Eugenio R. Whited, Hicks asked leave from the former to be absent from the canteen where he
was working on the morning of the day when the affray occurred, alleging that his mind was unsettled and that
he feared getting into trouble. It is also shown by the fact that Whited, who was in Hicks' house about noon
upon the latter's invitation, and while both where drinking gin, and while the revolver, the instrument of the
crime, was lying on the table on which were also several loaded cartridges, heard the accused repeatedly say,
referring to the deceased, that her time had come, adding that he would rather see her dead than in the arms of
another man, and when the accused went to bed apparently very much worried, and refusing to answer when
called, the witness left him. On the day after the crime the police found on a table in the culprit's house several
loaded cartridges, a bottle of oil and a piece of cloth used undoubtedly for cleaning the revolver.
It is alleged by the accused that when he withdrew his hand from that of Current, who had seized him, he fell
backward but managed to support himself on his two hands, and when he got up again the said corporal
threatened him with a revolver thrust into his face; whereupon he also drew his revolver, just as Edward
Robinson caught him from behind, when his revolver went off, the bullet striking the deceased.
All the foregoing circumstances conclusively prove that the accused, deliberately and after due reflection had
resolved to kill the woman who had left him for another man, and in order to accomplish his perverse intention
with safety, notwithstanding the fact that he was already provided with a clean and well prepared weapon
and carried other loaded cartridges besides those already in his revolver, he entered the house, greeting
everyone courteously and conversed with his victim , in what appeared to be a proper manner, disguising his
intention and calming her by his apparent repose and tranquillity, doubtless in order to successfully accomplish
his criminal design, behaving himself properly as he had planned to do beforehand.
This allegation appears to be at variance with the testimony of the witnesses Wallace Current, Edward
Robinson, Luez Corrales, and Lloyd Nickens in their respective declarations, especially with that of the second
and third, who witnessed the actual firing of the shot by the aggressor at the deceased, as shown by the fact that
Robinson immediately approached the accused in order to take his weapon away from him which he succeeded
in doing after a brief struggle, whereupon the aggressor ran out of the house. Thus, the shot that struck the
deceased in the breast and caused her death was not due to an accident but to a willful and premeditated act on
the part of the aggressor with intent to deprive the victim of her life.
As against the two foregoing aggravating circumstances no mitigating circumstance is present, not even that
mentioned in paragraph 7 of article 9 of the Penal Code, to wit, loss of reason and self-control produced by
jealousy as alleged by the defense, inasmuch as the only causes which mitigate the criminal responsibility for
the loss of self-control are such as originate from legitimate feelings, not those which arise from vicious,
unworthy, and immoral passions.
In addition to the qualifying circumstance of treachery, as above referred to, the presence of other aggravating
circumstances, such as premeditation, and the fact that the crime was committed in the dwelling of the deceased
From the foregoing considerations, and as the judgment appealed from is in accordance with the law, it is our
opinion that the same should be affirmed, as we do hereby affirm it with costs, provided, however, that the death
penalty shall be executed according to the law in force, and that in the event of a pardon being granted, the
125
culprit shall suffer the accessory penalties of article 53 of the Penal Code unless the same be expressly remitted
in the pardon. So ordered.
Arellano, C.J., Johnson, Carson and Moreland, JJ., concur.
The trial court was of opinion that its commission was not marked by either aggravating or extenuating
circumstances, and sentenced the convict to fourteen years eight months and one day of reclusion temporal, the
medium degree of the penalty prescribed by the code. Burt we are of opinion that the extenuating circumstance
set out in subsection 7 of article 9 should have been taken into consideration, and that the prescribed penalty
should have been imposed in its minimum degree. Subsection 7 of article 9 is as follows:
||| (US v. Hicks, G.R. No. 4971, [September 23, 1909], 14 PHIL 217-222)
The following are extenuating circumstances:
xxx
xxx
xxx
That of having acted upon an impulse so powerful as naturally to have produced passion and obfuscation.
Republic of the Philippines
The evidence clearly discloses that the convict, in the heat of passion, killed the deceased, who had theretofore
been his querida (concubine or lover) upon discovering her in flagrante in carnal communication with a mutual
acquaintance. We think that under the circumstances the convict was entitled to have this fact taken into
consideration in extenuation of his offense under the provisions of the above-cited article.
SUPREME COURT
Manila
EN BANC
G.R. No. L-7094
March 29, 1912
THE UNITED STATES, plaintiff-appellee,
This was the view taken by the Court of Spain upon a similar state of facts as set forth in its sentence of July 4,
1892, which is summarized by Viada (p. 69, in question 19, art. 9 of vol. 6) as follows:
vs.
HILARIO DE LA CRUZ, defendant-appellant.
F.C. Fisher for appellant.

Acting Attorney-General Harvey for appellee.
CARSON, J.:
The guilt of the defendant and appellant of the crime of homicide of which he was convicted in the court below
is conclusively established by the evidenced of record.
Shall he who kills a woman with whom he is living in concubinage for having caught her in her underclothes
with another party and afterwards shoots himself, inflicting a serious wound, be responsible for that crime with
the extenuating circumstance of having acted with violent passion and obfuscation? The Audiencia of Santiago
de Cuba did not so hold and its judgment was reversed by the supreme court for the improper disregard of
article 9, number 8, of the Penal Code for Cuba and Puerto Rico: "The facts held to be true by the trial court,
and which were the immediate cause of the crime by producing in the accused strong emotion which impelled
him to the criminal act and even to attempt his own life, were a sufficient impulse in the natural and ordinary
course to produce the violent passion and obfuscation which the law regards as a special reason for extenuation,
and as the judgment did not take into consideration the 8th circumstance of article 9 of the code, the Audiencia
rendering it seems to have violated this legal provision."
126
It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the "causes which mitigate the
criminal responsibility for the loss of self-control are such as originate from legitimate feelings, not those which
arise from vicious, unworthy, and immoral passions," and declined to give the benefit of the provisions of this
article to the convict in that case on the ground that the alleged causes for his loss of self-control did not
"originate from legitimate feelings." But in that case we found as facts that:
All the foregoing circumstances conclusively prove that the accused, deliberately and after due reflection had
resolved to kill the woman who had left him for another man, and in order to accomplish his perverse intention
with safety, notwithstanding the fact that he was already provided with a clean and well-prepared weapon and
carried other loaded cartridges besides those already in his revolver, he entered the house, greeting everyone
courteously and conversed with his victim, in what appeared to be in a proper manner, disguising his intention
and calming her by his apparent repose and tranquility, doubtless in order to successfully accomplish his
criminal design, behaving himself properly as he had planned to do beforehand.
In the former case the cause alleged "passion and obfuscation" of the aggressor was the convict's vexation,
disappointment and deliberate anger engendered by the refusal of the woman to continue to live in illicit
relations with him, which she had a perfect right to do; his reason for killing her being merely that he had
elected to leave him and with his full knowledge to go and live with another man. In the present case however,
the impulse upon which defendant acted and which naturally "produced passion and obfuscation" was not that
the woman declined to have illicit relations with him, but the sudden revelation that she was untrue to him, and
his discovery of her in flagrante in the arms of another. As said by the supreme court of Spain in the above-cited
decision, this was a "sufficient impulse" in the ordinary and natural course of things to produce the passion and
obfuscation which the law declares to be one of the extenuating circumstances to be taken into consideration by
the court.
Modified by a finding that the commission of the crime was marked with the extenuating circumstance set out
in subsection 7 of article 9, and by the reduction of the penalty of fourteen years eight months and one day of
reclusion temporal to twelve years and one day of reclusion temporal, the judgment of conviction and the
sentence imposed by the trial court should be and are hereby affirmed, with the costs of this instance against the
appellant.
Arellano, C.J., Torres, Johnson and Trent, JJ., concur.
EN BANC
[G.R. No. 46530. April 10, 1939.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CATALINO RABAO, defendant-appellant.
Jose F. Oreta for appellant.
Solicitor-General Ozaeta and Assistant Attorney Paredes, Jr. for appellee.
SYLLABUS
1. CRIMINAL LAW; PARRICIDE; RECKLESS IMPRUDENCE. The defendant's act is not mere reckless
imprudence, as the defense contends, sincu under article 365 of the Revised Penal Code the acts that go to make
up reckless imprudence must be lawful in themselves, and the attack consisting in the blow the defendant dealt
his wife is certainly not lawful, since it transgresses the Revised Penal Code itself, which expressly prohibits it
under pain of punishment.
2. ID.; ID.; MITIGATING CIRCUMSTANCES. The facts proven constitute the crime of parricide defined
by article 246 of the Revised Penal Code, and in its commission there were present the following mitigating
circumstances considered by the lower court in favor of the defendant: lack of intention to commit so grave a
127
crime (article 13 [3], Revised Penal Code); having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation (article 13 [6]); having surrendered himself to the authorities immediately after
the commission of the crime (article 13 [7]); with no aggravating circumstance.
3. ID.; ID.; PENALTY. Under article 246 of the Revised Penal Code the crime of parricide is punished with
reclusion perpetua to death. These penalties are indivisible and the Revised Penal Code provides, in article 63,
rule 3, that whenever there is present some mitigating circumstance with no aggravating one, the lesser penalty
shall be applied. In conformity with this legal provision, the penalty that should be imposed on the accused is
that of reclusion perpetua
4. ID.; ID.; COMMUTATION OF THE PENALTY. For the reasons set out in the decision and under
paragraph 2 of article 5 of the Revised Penal Code, the court recommends to his Excellency, the President of the
Philippines, the commutation of the penalty imposed on the defendant.
The defendant and the deceased Salvacion Agawa were married before the justice of the peace of Naga on
January 15, 1936; and had since been living happily, a child Or tender age having been born to the marriage.
Since their marriage they had made their home in the house of Urbano Rellora, who lived maritally with the
mother of the accused. on the morning of December 15, 1937, when the defendant was hardly awake after
staying up late the previous night on account of the elections held in the municipality of Naga, he noticed that
his wife was preparing water with which to give the child a bath. He told his wife not to bathe the child because
it had a cold. but the wife insisted and a quarrel arose in the heat of which the accused punched his wife on the
abdomen. She fell seated on a sack of rice nearby and immediately suffered an attack of which she died in spite
of the aid rendered her by the accused himself and other persons who had arrived. The following morning Dr.
Vicente Roxas performed an autopsy and found that the spleen of the deceased had been hypertrophied due to in
acute and chronic malaria from which she had been suffering, and that death was caused by the hemorrhage of
the spleen when it was ruptured as a consequence of an external blow on the abdomen which might have been
that delivered by the accused.
The defense alleges that the lower court erred in declaring that the accused hit the deceased on the abdomen,
which caused her death, instead of finding him, at most, guilty of parricide through reckless imprudence.
DECISION
IMPERIAL, J p:
This is an appeal from a judgment of the Court of First Instance of Camarines Sur convicting the appellant of
the crime of parricide and sentencing him to an indeterminate penalty of from eight years and one day of prision
mayorto twenty years of reclusion temporal, to indemnify the heirs of the deceased in the sum of P1,000 and to
pay the costs.
The information filed by the acting provincial fiscal of said province charged the defendant with parricide for
having killed his wife Salvacion Agawa on December 15, 1937, in the municipality of Naga, Province of
Camarines Sur, which crime was committed with evident premeditation and abuse of superior strength.
After an examination of the evidence, we are of the opinion that the lower court did not err in finding that the
accused hit the deceased on the abdomen which directly caused the rupture of her spleen producing thereby an
internal hemorrhage that caused her almost instant death. Ulbano Rellora who, as stated before, was the owner
of the house where the defendant and the deceased lived and who maintained marital relations with the mother
of the accused, testified positively that he saw the accused punched his wife on the abdomen, as a result of
which she fell seated on a sack of rice and at that very moment she had an attack, became unconscious and
expired. This testimony is corroborated by Dr. Roxas who performed the autopsy, when he declared that the
death was caused by the hemorrhage produced by the rupture of the spleen which rupture was caused by an
external blow on the abdomen of the deceased. The defendant himself, in his sworn declaration (Exhibit C)
subscribed before the justice of the peace of Naga, voluntarily admitted having hit his wife on the abdomen with
his fist when she said things that offended and made him nervous. The aggression was likewise corroborated by
another eye-witness, Raymundo Hilano, who declared that he was at that time Passing in front of the
defendant's house when he heard and saw him quarreling with his wife and that the defendant was delivering
blows on his wife. The testimony of this witness however, seems incredible and deserves no merit for he
testified having seen the aggression through a window which was three and a half meters high from the ground
where he stood. Considering the height of the window and the location of the witness, it is clear that he could
not have seen what was happening inside the house.
128
The defendant's act is not mere reckless imprudence, as the defense contends, since under article 365 of the
Revised Penal Code the acts that go to make up reckless imprudence must be lawful in themselves, and the
attack consisting in the blow the defendant dealt his wife is certainly not lawful. since it transgresses the
Revised Penal Code itself, which expressly prohibits it under pain of punishment.
The facts proven constitute the crime of parricide defined by article 246 of the Revised Penal Code, and in its
commission there were present the following mitigating circumstances considered by the lower court in favor of
the defendant: lack of intention to commit so grave a crime (article 13 [3], Revised Penal Code); having acted
upon an impulse so powerful as naturally to have produced passion or obfuscation (article 13 [6] ); having
surrendered himself to the authorities immediately after the commission of the crime (article 13 [7]); with no
aggravating circumstance. As to the penalty imposed, we find that it is not in accordance with that prescribed by
the law. Under article 246 of the Revised Penal Code the crime of parricide is punishes with reclusion perpetua
to death. These penalties are indivisible and the Revised Penal Code provides, in article 63, rule 3, that
whenever there is present some mitigating circumstance with no aggravating one, the lesser penalty shall be
applied. In conformity with this legal provision, the penalty that should be imposed on the accused is that of
reclusion perpetua.
After reviewing the facts, we are convinced that the defendant did not really have the intention of committing so
grave a crime as parricide. The quarrel that led to the aggression had its origin from the natural and justifiable
desire of the defendant, as a father, to prevent his child, which was then ill, from being given a bath. If, under
the circumstances, he transgressed the law by an unjust attack on his wife, he is, nevertheless, deserving of the
mitigating circumstances allowed in his favor. We invoke, for this reason, article 5, paragraph 2, of the Revised
Penal Code, and recommend to his Excellency, the President of the Philippines, the commutation of the penalty
imposed on the defendant in this decision.
EN BANC
[G.R. No. 146247. September 17, 2002.]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. EDGAR DAWATON, accused.
The Solicitor General for plaintiff-appellee.
SYNOPSIS
Modifying the appealed judgment, we declare the defendant Catalino Rabao guilty of the crime of parricide and
hereby sentenced him to reclusion perpetua, and to the accessory penalties provided in article 41 of the Revised
Penal Code, to indemnify the heirs of the deceased in the amount of P1,000, and to pay the costs in both
instances. So ordered.
Accused Edgar Dawaton was convicted of murder by the Regional Trial Court of Baler, Quezon, and was
sentenced to suffer the supreme penalty of death. On automatic review, accused argued that the trial court erred
in imposing the death penalty despite the attendance of mitigating circumstance of voluntary surrender and the
alternative circumstance of intoxication in his favor.
Avancea, C.J., Villa-Real, Diaz, Laurel, Concepcionand Moran, JJ., concur.
The Supreme Court affirmed Dawaton's conviction for murder, but modified the penalty imposed by the trial
court. The trial court's conclusion that accused murdered Leonides Lavares was sufficiently proved by the
||| (People v. Rabao, G.R. No. 46530, [April 10, 1939], 67 PHIL 255-259)
129
testimonies of prosecution witnesses Domingo Reyes and Esmeraldo Cortez who both witnessed the fatal
stabbing. The testimony was not refuted by the accused himself who admitted that he stabbed the victim three
(3) times before his mind went blank and could no longer recall what he did after that. Accused cannot also
avail of the mitigating circumstance of voluntary surrender as he himself admitted that he was arrested at his
uncle's residence. The Court, however, held that the trial court erred in not appreciating the alternative
circumstance of intoxication in favor of the accused. The allegation that the accused was drunk when he
committed the crime was corroborated by the prosecution witnesses, and there being no indication that the
accused was a habitual drunkard or that his alcoholic intake was intended to fortify his resolve to commit the
crime, the circumstance of intoxication should be credited in his favor. The Court modified the decision of the
trial court by imposing the penalty of reclusion perpetua.
SYLLABUS
1. CRIMINAL LAW; WAS QUALIFYING CIRCUMSTANCES; TREACHERY; PRESENT WHERE VICTIM

ATTACKED WHILE IN DEEP SLUMBER DUE TO EXCESSIVE AMOUNT OF ALCOHOL IMBIBED.
Treachery clearly attended the killing. The accused attacked the victim while the latter was in deep slumber
owing to the excessive amount of alcohol he imbibed. We are not persuaded by the version of the accused that
the victim threatened to harm him with a grenade and that it was only to prevent this from happening that he
was forced to stab Leonides. We defer instead to the judgment of the trial court which gave more credence to
the version of the prosecution witnesses inasmuch as it was in a better position to decide on the question of
credibility, having heard the witnesses themselves and observed their deportment during trial. According to the
prosecution witnesses, the victim had no chance to defend himself as he was dead drunk and fast asleep. He had
no inkling at all of what was going to happen to him since there was no prior argument or untoward incident
between him and the accused. From all indications they were on friendly terms; as in fact they were even
kumpadres. No one knew nor expected that when the accused momentarily excused himself, it was for the
purpose of looking for a knife, and without any warning, stabbing the victim who was sleeping. There is
treachery when the attack is upon an unconscious victim who could not have put up any defense whatsoever, or
a person who was dead drunk and sleeping on a bench and had no chance to defend himself. Clearly, the attack
was not only sudden but also deliberately adopted by the accused to ensure its execution without risk to himself.
ASEcHI
circumstance of plea of guilty. While he offered to plead guilty to the lesser offense of homicide, he was
charged with murder for which he had already entered a plea of not guilty. We have ruled that an offer to enter a
plea of guilty to a lesser offense cannot be considered as an attenuating circumstance under the provisions of
Art. 13 of The Revised Penal Code because to be voluntary the plea of guilty must be to the offense charged.
Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires the consent of the offended
party and the prosecutor before an accused may be allowed to plead guilty to a lesser offense necessarily
included in the offense charged. The prosecution rejected the offer of the accused.
3. ID.; ID.; VOLUNTARY SURRENDER; MUST BE SPONTANEOUS AND UNCONDITIONAL. Nor can
the accused avail of the mitigating circumstance of voluntary surrender as he himself admitted that he was
arrested at his uncle's residence. The following elements must be present for voluntary surrender to be
appreciated: (a) the offender has not been actually arrested; (b) the offender surrendered himself to a person in
authority, and, (c) the surrender must be voluntary. Resorting to sophistry, the accused argues that he was not
arrested but "fetched" as he voluntarily went with the policemen when they came for him. This attempt at
semantics is futile and absurd. That he did not try to escape or resist arrest after he was taken into custody by
the authorities did not amount to voluntary surrender. A surrender to be voluntary must be spontaneous, showing
the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges
his guilt or because he wishes to save them the trouble and expense necessarily included in his search and
capture. It is also settled that voluntary surrender cannot be appreciated where the evidence adduced shows that
it was the authorities who came looking for the accused. Moreover, the evidence submitted by the prosecution
belies the claim of the accused that he intended to submit himself to the authorities. The joint affidavit of the
arresting officers, the veracity of which was admitted by the parties and evidenced by a 20 October 1999 Order
of the trial court, revealed that they chanced upon the accused trying to escape from the rear of the cockpit
building when they came looking for him. TaCIDS
4. ID.; ID.; PASSION OR OBFUSCATION; NO FACTUAL BASIS. There is no factual basis to credit the
accused with the mitigating circumstance of outraged feeling analogous or similar to passion and obfuscation.
Other than his self-serving allegations, there was no evidence that the victim threatened him with a grenade.
Domingo Reyes and Esmeraldo Cortez testified that there was no prior altercation or disagreement between
Edgar and Leonides during the drinking spree, and they did not know of any reason for Edgar's hostility and
violence. On the contrary, Esmeraldo Cortez even recalled seeing the two (2) in a playful banter (lambingan)
during the course of their drinking indicating that the attack on the accused was completely unexpected.
2. ID.; MITIGATING CIRCUMSTANCES; OFFER TO ENTER PLEA OF GUILTY TO LESSER OFFENSE

CANNOT BE CONSIDERED AS ATTENUATING CIRCUMSTANCE; TO BE CONSIDERED
VOLUNTARY, PLEA MUST BE TO THE CRIME CHARGED. The accused is not entitled to the mitigating
130
5. ID.; ALTERNATIVE CIRCUMSTANCES; INTOXICATION; APPLICABLE IN CASE AT BAR; NO

INDICATION THAT ACCUSED WAS A HABITUAL DRUNKARD OR THAT HIS ALCOHOL INTAKE
WAS INTENDED TO FORTIFY HIS RESOLVE TO COMMIT CRIME. The trial court erred in not
appreciating the alternative circumstance of intoxication in favor of the accused. Under Art. 15 of The Revised
Penal Code, intoxication of the offender shall be considered as a mitigating circumstance when the offender
commits a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said
felony. Otherwise, when habitual or intentional, it shall be considered as an aggravating circumstance. The
allegation that the accused was drunk when he committed the crime was corroborated by the prosecution
witnesses. The accused and his drinking companions had consumed four (4) bottles of gin at the house of
Esmeraldo Cortez, each one drinking at least a bottle. It was also attested that while the four (4) shared another
bottle of gin at the house of Amado Dawaton, it was the accused who drank most of its contents. In addition,
Esmeraldo testified that when Edgar and Leonides arrived at his house that noon, they were already intoxicated.
There being no indication that the accused was a habitual drunkard or that his alcoholic intake was intended to
fortify his resolve to commit the crime, the circumstance of intoxication should be credited in his favor.
Consequently, we find that the trial court erroneously imposed the penalty of death. The accused was charged
with murder for which the law provides a penalty of reclusion perpetua to death. Under Art. 63, par. 3, of The
Revised Penal Code, in all cases in which the law prescribes a penalty composed of two (2) indivisible
penalties, such as in this case, when the commission of the act is attended by a mitigating circumstance and
there is no aggravating circumstance, the lesser penalty shall be applied. Since no aggravating circumstance
attended the killing but there existed the mitigating circumstance of intoxication, the accused should be
sentenced only to the lesser penalty of reclusion perpetua. SDHacT
offered to plead guilty to the lesser offense of homicide but was rejected by the prosecution, hence, the case
proceeded to trial.
DECISION
Already drunk, Leonides decided to sleep on a papag or wooden bench, lying down on his right side facing
Domingo and Edgar using his right hand for a pillow. Edgar, Domingo and Esmeraldo continued drinking until
they finished another bottle of gin.
The prosecution presented as witnesses the very persons who were with the accused and the victim during the
incident, namely, Domingo Reyes and Esmeraldo Cortez. The prosecution also presented Generosa Tupaz, the
mother of the victim, to prove the civil liability of the accused.
The evidence for the prosecution: On 20 September 1998 Esmeraldo Cortez was entertaining visitors in his
house in Sitio Garden, Brgy. Paltic, Dingalan, Aurora. His brother-in-law Edgar Dawaton and kumpadre
Leonides Lavares dropped by at about 12:00 o'clock noon followed by Domingo Reyes shortly after. All three
(3) guests of Esmeraldo were residents of Sitio Garden. They started drinking soon after. At about 3:00 o'clock
in the afternoon and after having consumed four (4) bottles of gin, they went to the house of Amado Dawaton,
Edgar's uncle, located about twenty (20) meters away from Esmeraldo's house. They stayed at the balcony of
the house and continued drinking. Amado Dawaton was not in.
BELLOSILLO, J p:
EDGAR DAWATON was found by the trial court guilty of murder qualified by treachery and sentenced to
death, ordered to indemnify the heirs of the victim P50,000.00 plus the accessory penalties provided by law,
without subsidiary imprisonment in case of insolvency, and to pay the costs of suit. 1
At about 3:30 in the afternoon, twenty (20) minutes after Leonides had gone to sleep, Edgar stood up and left
for his house. When he returned he brought with him a stainless knife with a blade 2 to 3 inches long. Without a
word, he approached Leonides who was sleeping and stabbed him near the base of his neck. 4 Awakened and
surprised, Leonides got up and blurted: "Bakit Pare, bakit?" 5 Instead of answering, Edgar again stabbed
Leonides on the upper part of his neck, spilling blood on Leonides' arm.
An Information 2 for murder qualified by treachery and evident premeditation was filed against Edgar Dawaton
on 11 March 1999. When first arraigned he pleaded not guilty, 3 but during the pre-trial on 7 May 1999, he
Leonides attempted to flee but Edgar who was much bigger grabbed the collar of his shirt and thus effectively
prevented him from running away. Edgar then repeatedly stabbed Leonides who, despite Edgar's firm hold on
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him, was still able to move about twenty (20) meters away from the house of Amado Dawaton before he fell to
the ground at the back of Esmeraldo's house. But even then, Edgar still continued to stab him. Edgar only
stopped stabbing Leonides when the latter already expired. Edgar then ran away towards the house of his uncle
Carlito Baras situated behind the cockpit.
In Edgar's version of the stabbing incident, a drunk and angry Leonides arrived at about 2:30 in the afternoon
and demanded that they he and Edgar return candles (magbalikan [tayo] ng kandila). 6 Leonides was
godfather of a son of Edgar. Leonides also cursed and threatened to hang a grenade on Edgar (P - t - ng ina mo.
Hintayin mo ako. Kukuha ako ng granada at sasabitan kita!). 7
Domingo and Esmeraldo were positioned a few meters away from where Leonides was sleeping when he was
initially assaulted by Edgar. They were shocked by what happened but other than pleading for Edgar to stop
they were unable to help Leonides.
According to Edgar, he tried to calm down Leonides but the latter insisted on going home purportedly to get a
grenade. Alarmed because he knew Leonides had a grenade, Edgar went home to look for a bladed weapon. He
already had a knife with him but he thought it was short. Not finding another weapon, he returned to
Esmeraldo's house.
Domingo left for his house soon after the stabbing started as he did not want to get involved. Nonetheless he felt
pity for Leonides so he returned a few minutes later.
By then, Leonides was already dead and people had already gathered at the site. The mayor who was in a
nearby cement factory arrived and instructed them not to go near the body. They pointed to the direction where
Edgar fled. Edgar was later arrested at the house of his uncle, Carlito Baras, at Sitio Aves, Brgy. Paltic,
Dingalan.
Accused-appellant Edgar Dawaton was the sole witness for the defense. He did not deny that he stabbed
Leonides Lavares but insisted that he was provoked into stabbing him. Edgar claimed that the night prior to the
stabbing incident, or on 19 September 1998, his uncle Armando Ramirez went to his house to welcome his
return from Cavite where he worked as a carpenter. They started drinking gin at about 7:00 o'clock in the
evening and ended at 3:00 o'clock in the morning of the following day. He slept and woke up at 6:00 o'clock in
the morning of 20 September 1998.
Apparently, he did not have enough of the prior evening's drinking orgy. He went to his uncle's house early that
morning and after his uncle bought two (2) bottles of gin they started drinking again. Domingo Reyes arrived at
around 7:30 in the morning and joined them. Esmeraldo Cortez joined them about 12:00 o'clock noon and
bought two (2) more bottles of gin. Later, the group with the exception of Armando Ramirez transferred to the
house of Esmeraldo upon the latter's invitation and drank two (2) more bottles of gin.
When he returned, Leonides was still in Esmeraldo's house and had joined in the drinking. He sat opposite
Leonides who resumed his tirades against him.
Again Leonides started to leave for his house purportedly to get a grenade. Afraid that Leonides would make
good his threat, Edgar held on to him and stabbed him. He did not know where and exactly how many times he
struck Leonides but he recalled doing it three (3) times before his mind went blank (nablangko). 8 Edgar also
claimed that he was in this mental condition when he left Leonides and ran to the house of Carlito Baras. He did
not know that he had already killed Leonides, only that he stabbed him thrice. He regained his senses only when
he reached his uncle Carlito's house.
Edgar further said that he sought his uncle's help so he could surrender but he was told to wait because his uncle
was then taking a bath. It was while waiting for his uncle when the policemen arrived to arrest him. He
maintained that he voluntarily went with them.
The medico-legal certificate dated 24 September 1998 issued by Dr. Ernesto C. del Rosario 9 showed that the
victim sustained a stab wound at the back and ten (10) stab wounds in front. He also had slash wounds on his
left hand and his tongue was cut off. The immediate cause of death was determined to be "Hypovolemic Shock
due to hemorrhage, multiple stabbed (sic) wounds." 10
132
On 20 October 1999 the parties entered into several stipulations which were embodied in an Order. 11
Specifically, they admitted the veracity of the Sinumpaang Salaysay dated 21 September 1998 executed by
SPO2 Ramil D. Gamboa and PO3 Gerry M. Fabros, 12 the police officers who arrested the accused; the
genuineness and due execution of the medico-legal certificate issued by Dr. Ernesto C. del Rosario; and, the
authenticity of the certificate of death 13 also issued by Dr. del Rosario. Thus, the presentation of the arresting
officers and Dr. del Rosario as witnesses was dispensed with.
On 20 November 1999 the trial court convicted Edgar Dawaton of murder qualified by treachery and sentenced
him to death.
There is treachery when the attack is upon an unconscious victim who could not have put up any defense
whatsoever, 14 or a person who was dead drunk and sleeping on a bench and had no chance to defend himself.
15 Clearly, the attack was not only sudden but also deliberately adopted by the accused to ensure its execution
without risk to himself.
The accused argues that trial court erred in imposing the death penalty despite the attendance of mitigating and
alternative circumstances in his favor. 16 He avers that he is entitled to the mitigating circumstance of plea of
guilty. We disagree. While the accused offered to plead guilty to the lesser offense of homicide, he was charged
with murder for which he had already entered a plea of not guilty. We have ruled that an offer to enter a plea of
guilty to a lesser offense cannot be considered as an attenuating circumstance under the provisions of Art. 13 of
The Revised Penal Code because to be voluntary the plea of guilty must be to the offense charged. 17
We affirm the conviction of accused-appellant; we however modify the penalty imposed on him.
The conclusion that accused-appellant murdered Leonides Lavares was sufficiently proved by the testimonies of
prosecution witnesses Domingo Reyes and Esmeraldo Cortez who both witnessed the fatal stabbing. This was
not refuted by the accused himself who admitted that he stabbed the victim three (3) times before his mind went
blank and could no longer recall what he did after that.
Treachery clearly attended the killing. The accused attacked the victim while the latter was in deep slumber
owing to the excessive amount of alcohol he imbibed. We are not persuaded by the version of the accused that
the victim threatened to harm him with a grenade and that it was only to prevent this from happening that he
was forced to stab Leonides. We defer instead to the judgment of the trial court which gave more credence to
the version of the prosecution witnesses inasmuch as it was in a better position to decide on the question of
credibility, having heard the witnesses themselves and observed their deportment during trial.
According to the prosecution witnesses, the victim had no chance to defend himself as he was dead drunk and
fast asleep. He had no inkling at all of what was going to happen to him since there was no prior argument or
untoward incident between him and the accused. From all indications they were on friendly terms; as in fact
they were even kumpadres. No one knew nor expected that when the accused momentarily excused himself, it
was for the purpose of looking for a knife, and without any warning, stabbing the victim who was sleeping.
Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires the consent of the offended
party and the prosecutor before an accused may be allowed to plead guilty to a lesser offense necessarily
included in the offense charged. We note that the prosecution rejected the offer of the accused.
Nor can the accused avail of the mitigating circumstance of voluntary surrender as he himself admitted that he
was arrested at his uncle's residence. 18 The following elements must be present for voluntary surrender to be
appreciated: (a) the offender has not been actually arrested; (b) the offender surrendered himself to a person in
authority, and, (c) the surrender must be voluntary. 19
Resorting to sophistry, the accused argues that he was not arrested but "fetched" as he voluntarily went with the
policemen when they came for him. This attempt at semantics is futile and absurd. That he did not try to escape
or resist arrest after he was taken into custody by the authorities did not amount to voluntary surrender. A
surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself
unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them
the trouble and expense necessarily included in his search and capture. 20 It is also settled that voluntary
surrender cannot be appreciated where the evidence adduced shows that it was the authorities who came looking
for the accused. 21
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Moreover, the evidence submitted by the prosecution belies the claim of the accused that he intended to submit
himself to the authorities. The joint affidavit of the arresting officers, the veracity of which was admitted by the
parties and evidenced by a 20 October 1999 Order of the trial court, revealed that they chanced upon the
accused trying to escape from the rear of the cockpit building when they came looking for him. 22
Similarly, there is no factual basis to credit the accused with the mitigating circumstance of outraged feeling
analogous or similar 23 to passion and obfuscation. 24 Other than his self-serving allegations, there was no
evidence that the victim threatened him with a grenade. Domingo Reyes and Esmeraldo Cortez testified that
there was no prior altercation or disagreement between Edgar and Leonides during the drinking spree, and they
did not know of any reason for Edgar's hostility and violence. On the contrary, Esmeraldo Cortez even recalled
seeing the two (2) in a playful banter (lambingan) during the course of their drinking 25 indicating that the
attack on the accused was completely unexpected.
The accused would want us to reconsider the penalty imposed on him on account of his not being a recidivist.
He contends that an appreciation of this factor calls for a reduction of the penalty.
We are not persuaded. Recidivism is an aggravating circumstance the presence of which increases the penalty.
The converse however, that is, non-recidivism, is not a mitigating circumstance which will necessarily reduce
the penalty. Nonetheless, we hold that the trial court erred in not appreciating the alternative circumstance of
intoxication in favor of the accused. Under Art. 15 of The Revised Penal Code, intoxication of the offender shall
be considered as a mitigating circumstance when the offender commits a felony in a state of intoxication, if the
same is not habitual or subsequent to the plan to commit said felony. Otherwise, when habitual or intentional, it
shall be considered as an aggravating circumstance.
was intended to fortify his resolve to commit the crime, the circumstance of intoxication should be credited in
his favor.
Consequently, we find that the trial court erroneously imposed the penalty of death. The accused was charged
with murder for which the law provides a penalty of reclusion perpetua to death. Under Art. 63, par. 3, of The
Revised Penal Code, in all cases in which the law prescribes a penalty composed of two (2) indivisible
penalties, such as in this case, when the commission of the act is attended by a mitigating circumstance and
there is no aggravating circumstance, the lesser penalty shall be applied. Since no aggravating circumstance
attended the killing but there existed the mitigating circumstance of intoxication, the accused should be
sentenced only to the lesser penalty of reclusion perpetua.
The trial court correctly ordered the accused to pay civil indemnity in the amount of P50,000.00 to the heirs of
the victim without need of proof other than the fact that a crime was committed resulting in the death of the
victim and that the accused was responsible therefor. 29 The heirs are also entitled to moral damages pursuant to
Art. 2206 of the New Civil Code on account of the mental anguish which they suffered, and the amount of
P50,000.00 is considered reasonable according to existing jurisprudence. 30
WHEREFORE, the assailed Decision of the court a quo finding the accused EDGAR DAWATON guilty of
MURDER qualified by treachery is AFFIRMED with the modification that the penalty is reduced from death to
reclusion perpetua. The accused is ordered to pay the heirs of Leonides Lavares P50,000.00 in civil indemnity
and P50,000.00 in moral damages. IHaCDE
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales and Callejo, Sr., JJ., concur.
||| (People v. Dawaton, G.R. No. 146247, [September 17, 2002], 437 PHIL 861-874)
The allegation that the accused was drunk when he committed the crime was corroborated by the prosecution
witnesses. The accused and his drinking companions had consumed four (4) bottles of gin at the house of
Esmeraldo Cortez, each one drinking at least a bottle. 26 It was also attested that while the four (4) shared
another bottle of gin at the house of Amado Dawaton, it was the accused who drank most of its contents. 27 In
addition, Esmeraldo testified that when Edgar and Leonides arrived at his house that noon, they were already
intoxicated. 28 There being no indication that the accused was a habitual drunkard or that his alcoholic intake
134
EN BANC
intimidation, although the presence of such element is apparent; that when a woman of tender age says that she
has been raped, she says in effect all that is necessary to show that she has indeed been raped; that alibi and
denial cannot prevail over positive identification; and that the trial court cannot increase the penalties without
the consent of the accused. cEDaTS
[G.R. Nos. 136733-35. December 13, 2001.]

SYLLABUS
PEOPLE OF THE PHILIPPINES, appellee, vs. ELADIO VIERNES y ILDEFONSO, appellant.
SYNOPSIS
Appellant was charged with two (2) counts of consummated rape and one (1) count of attempted rape
committed against Catherine, a minor below 12 years old and daughter of his common-law wife, Lina.
Catherine testified that appellant, her mother's common-law husband, tried to rape her in March 1997 but failed
because she resisted. However, in two later occasions, appellant suddenly grabbed and carried her to the second
floor of his house, where she was raped against her will. Appellant, who was then a security guard and a tricycle
driver, pleaded not guilty and interposed alibi claiming to be somewhere else at the time of the commission of
the crimes. The trial court accorded credence to the testimony of the victim and appreciated against appellant
his offer of compromise. Judgment was, thereafter, rendered finding appellant guilty of all the charges.
Appellant was sentenced to reclusion perpetua and an indeterminate penalty for the consummated rapes and
attempted rape, respectively. One day after promulgation, the prosecution moved for reconsideration seeking the
imposition of death penalty and reclusion perpetua for the crimes.
It was held that the findings of the trial court on credibility of witnesses is generally accorded respect on appeal;
moral ascendancy of appellant as common-law husband of complainant's mother takes the place of force and
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; TRIAL COURT, IN THE BEST

POSITION TO ASSESS CREDIBILITY OF WITNESSES AND THEIR TESTIMONIES. A rape victim
who testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent is a
credible witness. It is well-entrenched that the trial court is in the best position to assess the credibility of
witnesses and their testimonies because of its unique opportunity to observe them firsthand and to note their
demeanor, conduct and attitude on the stand. In the absence of any showing that its assessment is flawed, an
appellate tribunal is bound by it.
2. ID.; ID.; ID.; ID.; CASE AT BAR. Despite the tender age of complainant, her accounts on direct and
cross-examination were replete with details that jibed on material points. Considering her young age, it would
have been highly improbable for her to fabricate a charge so humiliating to her and her family, had she not been
truly subjected to the painful experience of sexual abuse.
3. ID.; ID.; ID.; DENIAL AND ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. Alibi
and denial, if unsubstantiated by clear and convincing evidence, are negative and self-serving evidence that
deserve no weight in law. They cannot be given greater evidentiary value over a credible witness' testimony on
affirmative matters. Except for Lina Linatoc's corroboration, the only evidence supporting the alibi and denial
of appellant is his own say-so. And Lina happens to be his common-law wife; thus, her testimony is necessarily
suspect and cannot prevail over the testimonies of more credible witnesses. Negative testimony cannot prevail
over the offended party's positive identification of the accused as her rapist.
4. ID.; ID.; ID.; ALIBI; REQUISITE FOR DEFENSE TO PROSPER; CASE AT BAR. For alibi to prosper,
it must be shown that the accused was in another place at the time the crime was committed, and that it would
have been physically impossible for him to be at the scene of the crime at the time it was committed. Such
135
physical impossibility was not proven in the present case. The Smart Tower where appellant worked as a
security guard was located also in Barangay Tibig, Lipa City, and was only a thirty-minute walk from his house.
The tricycle station, on the other hand, was only 1000 meters away. Note that he had a motorized tricycle at his
disposal. His alibi, therefore, is unworthy of credence. aAHDIc
9. CIVIL LAW; DAMAGES AWARDED RAPE VICTIM. Recent jurisprudence has increased the
indemnification for the victim in a case of consummated rape to P75,000 if the crime was committed with, or
effectively qualified by, any of the circumstances under which the death penalty is authorized by the applicable
amendatory laws. Moral damages are pegged at P50,000 without further need of pleading or proof.
5. ID.; ID.; OFFER OF COMPROMISE, AN IMPLIED ADMISSION OF GUILT. We concur with the
finding of the RTC that the letter dated November 25, 1997 addressed to Orlando and Catherine Linatoc,
signed by appellant and delivered by Lina Linatoc was admissible evidence against appellant. Perusal of the
letter reveals that he attempted to bribe Orlando with P150,000 or a house and lot and a promise of an additional
P100,000 in exchange for dropping the charges against him. Under Section 27, Rule 130 of the Rules of Court,
an offer of compromise by the accused may be received in evidence as an implied admission of guilt.
10. ID.; DAMAGES; EXEMPLARY DAMAGES; BASIS OF GRANT. Exemplary damages, on the other
hand, are granted when an aggravating circumstance, which is not offset by a mitigating circumstance, attended
the commission of the crime. In several cases, the relationship between the appellant and the rape victim
justifies the award of exemplary damages, as in this case. HcSETI
6. CRIMINAL LAW; RAPE; WHEN A GIRL OF TENDER AGE SAYS SHE HAS BEEN RAPED, SHE SAYS
IN EFFECT ALL THAT IS NECESSARY TO SHOW THAT CRIME WAS COMMITTED. Medical
examination is not an indispensable requirement, and its absence does not affect the verdict of conviction, if
sufficient evidence is presented to prove the crime charged. When a rape complainant, especially one of tender
age like Catherine, says that she has been raped, she in effect says all that is necessary to show that she has
indeed been raped.
7. ID.; ID.; RAPE; FORCE AND INTIMIDATION; SUBSTITUTED BY MORAL ASCENDANCY IN

INCESTUOUS RAPE. The moral ascendancy of appellant as the common-law husband of complainant's
mother takes the place of force and intimidation as an element of rape, although the presence of such element is
apparent from Catherine's testimony.
8. ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; NOT CONSIDERED WHERE

APPELLANT WENT TO THE POLICE STATION "TO CLEAR HIS NAME." The act of surrender must be
spontaneous, accompanied by an acknowledgment of guilt, or an intention to save the authorities the trouble and
the expense that search and capture would require. Going to the police station "to clear his name" does not show
any intent of appellant to surrender unconditionally to the authorities.
11. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION FOR RECONSIDERATION SEEKING

MODIFICATION OF PENALTY; ALLOWED ONLY ON MOTION OF ACCUSED. In People v. Ang Cho
Kio, the Court, citing Article 2 of Rule 118 of the pre-1964 Rules of Court, held that the prosecution cannot
move to increase the penalty imposed in a promulgated judgment. Reopening the case for the purpose of
increasing the penalty as sought by the government would place the accused in double jeopardy. This ruling was
followed in People v. Pomeroy and People v. Ruiz. The 1964 amendment of the Rules, however, allowed the
fiscal to move for the modification or the setting aside of the judgment before it became final or an appeal was
perfected. In 1985, Section 7 of Rule 120 was amended to include the phrase "upon motion of the accused"
effectively resurrecting the Ang Cho Kio ruling prohibiting the prosecution from seeking a modification of a
judgment of conviction. Under this Rule, a judgment of conviction, before it became final, could be modified or
set aside upon motion of the accused. It obviously aims to protect the accused from being put anew to defend
himself from more serious offenses or penalties which the prosecution or the court may have overlooked in the
original trial. It does not however bar him from seeking or receiving more favorable modifications.
Significantly, the present Rules, as amended last year, retained the phrase "upon motion of the accused."
Therefore, the assailed Order is erroneous and reversible. The trial court cannot increase the penalties without
the consent of the accused.
12. LEGAL ETHICS; ATTORNEYS; COUNSEL AND ALL MEMBERS OF THE BENCH AND BAR,
URGED TO BE MORE VIGILANT IN PROTECTING RIGHTS OF THE ACCUSED AND TO KEEP
ABREAST OF LEGAL DEVELOPMENTS. We urge counsel, as well as all the members of the bench and
the bar, to be more vigilant in protecting the rights of the accused especially those in jeopardy of the death
penalty and to keep abreast of legal developments. Indeed, the learning process in law never ceases. Utmost
dedication to duty and excellence is expected of every lawyer. EaIcAS
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DECISION
"1. CRIM. CASE NO. 0532-97 to suffer the penalty of RECLUSION PERPETUA, to indemnify Catherine
Linatoc in the amount of P50,000.00, to pay P10,000 as moral damages pursuant to Article 2219 (3) of the Civil
Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same Code and
the costs of this suit;
PANGANIBAN, J p:
Under the Rules of Court, a judgment of conviction in a criminal prosecution may be modified only upon
motion of the accused. As a rule, the prosecution is prohibited from seeking, and the trial court from granting, a
more severe penalty than that imposed in the original decision. This is especially true in a case in which the new
and amended penalty imposed is death.
The Case
Before us is an appeal 1 from the April 6, 1998 Decision and the May 21, 1998 Order 2 of the Regional Trial
Court (RTC) of Lipa City (Branch 12) in Criminal Case Nos. 0532-97, 0533-97 and 0534-97. The assailed
Decision convicted appellant of two counts of rape and one count of attempted rape. It disposed as follows:
"WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO, guilty beyond reasonable
doubt in Crim. Case No. 0532-97 of the crime of Rape, as defined and penalized under Article 335, par. 3 of the
Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; in Crim. Case No.
0533-97 of the crime of Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to Article
51 of the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; and, in Crim.
Case No. 0534-97 of the crime of Rape, as defined and penalized under Article 335, par. 1 of the Revised Penal
Code, as amended by Republic Act No. 2532 and Republic Act No. 4111, and sentences him, as follows:
"2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of FOUR (4) YEAR, TWO (2) MONTHS
and ONE (1) DAY of Prision Correccional, as Minimum, to EIGHT (8) YEARS and ONE (1) DAY of Prision
Mayor, as Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00, and to pay the costs of this
suit; and
"3. CRIM. CASE NO. 0534-97 to suffer the penalty of RECLUSION PERPETUA, to indemnify Catherine
Linatoc in the amount of P50,000.00, to pay P10,000.00 as moral damages pursuant to Article 2219 (3) of the
Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same
Code and the costs of this suit." 3
On the other hand; the assailed Order increased the penalties as follows:
"WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO, guilty beyond reasonable
doubt in Crim. Case No. 0532-97 of the crime of Rape, as defined and penalized under Article 335, par. 3 of the
Revised Penal Code, as amended by Republic Act No. 7659; in Crim. Case No. 0533 of the crime of Attempted
Rape, as defined and penalized under Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as
amended by Republic Act No. 7659, and in Crim. Case No. 0534-97 of the crime of Rape, as defined and
penalized under Article 335, par. 1 of the Revised Penal Code, as amended by Republic Act No. 7659, and
sentences him, as follows:
"1. CRIM. CASE NO. 0532-97 to suffer the penalty of DEATH, to indemnify CATHERINE LINATOC in
the amount of P50,000.00, to pay P10,000 as moral damages pursuant to Article 2219 (3) of the Civil Code, as
well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same Code and the costs
of this suit;
137
"2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY of
Prision Mayor, as Minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of
Reclusion Temporal, as Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00 and to pay the
costs of this suit; and
Finally, in Criminal Case No. 0533-97, appellant was charged with attempted rape:
"3. CRIM. CASE NO. 0534[-97] to suffer the penalty of DEATH, to indemnify Catherine Linatoc in the
amount of P50,000.00, to pay P10,000.00, as moral damages pursuant to Article 2219 (3) of the Civil Code, the
amount of P5,000.00, as exemplary damages, pursuant to Article 2229 of the same Code and the costs of this
suit." 4
"That on or about the month of March 1997, around noon time, at Barangay Tibi, Lipa City, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, being then the common law husband
of the mother of the victim, by means of force and intimidation and with lewd design pursuant to his carnal
desire, did then and there willfully, unlawfully and feloniously commence the commission of the felony of rape
directly by overt acts against the undersigned complainant who is a minor below 12 years old, by then and there
undressing her and going on top of her with his exposed private organ but did not perform all the acts of
execution which should have produced the said felony because the undersigned offended party resisted." 7
Three criminal Complaints, all dated August 21, 1997, were filed by Catherine Linatoc (assisted by her mother
Lina Dela Cruz-Linatoc) before Second Assistant City Prosecutor Danilo S. Sandoval. The Complaint in
Criminal Case No. 0532-97 charged appellant with rape committed as follows:
Criminal Case Nos. 0532-97 and 0534-97 were raffled to the Regional Trial Court of Lipa City, Branch 12; and
Criminal Case No. 0533-97, to Branch 85 of the same court. Later, all the cases were consolidated in Branch 12.
8
"That on or about the 29th day of September, 1996 at about 10:00 o'clock in the morning at Barangay Tibig,
Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then
the common law husband of the mother of the victim, did then and there willfully, unlawfully and feloniously,
by means of force and intimidation have carnal knowledge of the undersigned complainant who is a minor
below 12 years old, against her will and consent to her damage and prejudice in such amount as may be
awarded to her under the provision of the Civil Code." 5
On arraignment, appellant pleaded not guilty. 9 After trial in due course, the lower court rendered the assailed
Decision.
The Complaint in Crim. Case No. 0534-97 likewise charged him with consummated rape: aTcESI
"That on or about the 18th day of August 1997 at about 12:00 o'clock noon, at Barangay Tibig, Lipa City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then the
common law husband of the mother of the victim, did then and there wilfully, unlawfully and feloniously, by
means of force and intimidation have carnal knowledge of the undersigned complainant who is a minor of 12
years old against her will and consent to her damage and prejudice in such amount as may be awarded to her
under provisions of the Civil Code." 6
In a Motion for Reconsideration dated May 18, 1998, Prosecutor Sandoval asked that the imposed penalties be
increased pursuant to Republic Act (RA) No. 7659. The RTC granted the Motion via the assailed Order.
The Facts
Version of the Prosecution
In its Brief, 10 the Office of the Solicitor General presents the following narration of facts:
138
"Catherine Linatoc stood quietly by the door of the toilet of appellant's her mother's common-law husband
house. Her skirt's hemlines were slowly falling to her knees vainly covering the panty that were pulled down
mid-way her lower legs. This was the third of a series of dismaying sex that she and appellant had been through.
Like the others before this one, there was by appellant much pulling, shoving and forcible grasping of her
hands, thus rendering her immobile for three minutes or so.
"The third rape happened in appellant's house in Tibig, Lipa City, around noontime of August 18, 1997.
Appellant then bidded [sic] the two brothers and a step-brother of Catherine Linatoc to clean the his tricycle,
which was parked on the side of the street across his house. They followed his order. Appellant also instructed
Catherine Linatoc to fetch water for the house toilet. She obliged, returning with two pails of it. She deposited
them by the door of the toilet. Turning about, Catherine Linatoc was surprised to find appellant behind her. In
quick succession, appellant pushed her to the wall, pulled her skirts up, drag her panty mid-way her lower leg,
and rushed his own pants down. Grasping her hands tightly with one hand, appellant began inserting his penis
into her vagina. She resisted to no avail. His penis established a comfortable slide into and out of her [organ], as
the pace quickened for about three minutes. The gyration was furious. After appellant spurted out, he backed off
and left saying nothing.
"Frightened and crying, Catherine Linatoc went to her great-grandmother's abode in San Guillermo, Lipa City.
She reported the incident to this elder, and recounted some more. Catherine Linatoc told her great-grandmother
of two other acts of sexual abuse by appellant. The first one, she narrated, happened on September 29, 1996,
about ten in the morning[;] and the second, on March 1997 around noon-time.
"The first rape happened on September 29, 1996 in appellant's house. Catherine Linatoc was on the ground floor
of the house when so suddenly appellant sprung from wherever he was, grabbed and carried her to the second
floor. The second floor was just three steps from the ground floor. He then undressed her, taking off her sando,
skirt and panty. He undressed himself too, and then floored both their bodies, [his] on top of her. He caressed
her breasts and started inserting his penis into her vagina. Appellant held her hands tightly and fought off her
struggle. There was push and pull for about three minutes, then appellant came through. Appellant dressed up,
and before walking away, apologized to her. It would be the first and last rape, he said.
"There was soon the second sexual abuse. In March 1997, about noontime, using the same strategy as he did in
the [first] rape, appellant unburdened himself on Catherine Linatoc. From nowhere, appellant appeared. He
dragged her to the second floor where he undressed her and himself. He mightily threw her to the floor, his
sweaty body covering her's. Appellant engaged in the now familiar gyration once again. This time, however his
penis landed on the thighs of the victim as insertion, because of her struggle and vagina's virginal qualities,
became frustratingly difficult. Between her thighs appellant thrusted his penis. He satisfied himself just the
same.
"The great-grandmother was helpless to remedy the abuse done to Catherine Linatoc. They waited for the father
of Catherine Linatoc, Orlando Linatoc, who arrived four days later. The mother of Catherine Linatoc, Lina
Viernes, also arrived. Catherine Linatoc had her medico-legal examination with these results.:
'. . . lacerated hymen on the 3:00 and 9:00 o'clock positions with small amounts of whitish discharge.'
"The medico-legal examination was performed by Dr. Helen S. Dy. The present criminal complaints against
appellant were thereafter filed." 11
Version of the Defense
Appellant denies the charges against him. Claiming to have been elsewhere at the time of the commission of the
alleged crimes, he submits the following counterstatement of the facts:
"1) ELADIO, at the lower court, stated that he is the common law husband of Lina de la Cruz-Linatoc (mother
of the alleged victim . . . Catherine Linatoc). He is a security guard and at the same time, a tricycle driver. On
September 29, 1996 he was living with Lina, together with Catherine, his two sons and other relatives. On
September 28, 1996 he scolded Catherine. As a consequence thereof, Catherine went to the house of her great
grandmother and stayed therein even beyond September 29, 1996. Therefore, it is impossible for him
(ELADIO) to have attacked Catherine sexually on September 29, 1996. It is not true that he attempted to rape
Catherine in March of 1997 because he was on duty at that time. Their company logbook will bear witness
139
thereto. (Exhibit '2', Original Records) On August 18, 1997 it is not true that he raped Catherine since he was
plying his tricycle then. (TSN, pp. 2-13, December 11, 1997; and pp. 2-22, January 8, 1998)
On the other hand, appellant's denial and alibi were unsubstantiated and self-serving; hence, they deserve no
weight in law. They cannot stand against Catherine's positive testimony.
"2) Lina de la Cruz at the Court below, testified that she confirms claim/s [sic] of ELADIO that Catherine was
no longer in their house on September 29, 1996 and that ELADIO could not have abused Catherine sexually.
Catherine's charge for March 1997 and August 18, 1997 were not also true. (TSN, pp. 2-7, February 3, 1998).
In the assailed Order, the trial court noted that the prosecution's Motion was unopposed. It ruled that the
increase in the penalty did not place appellant in double jeopardy.
Hence, this appeal. 13

xxx xxx xxx
The Issues
"D. Sur-Rebuttal Evidence
In his Brief, 14 appellant raises this sole alleged error: HSIaAT
"ELADIO, as a sur-rebuttal witness, denied to have asked the settlement of the case." 12
Ruling of the Trial Court
The court a quo held that the testimony of Catherine Linatoc both on direct and on cross-examination was
clear, positive and steadfast. Corroborated by the medicolegal examination conducted on her, it was replete with
details that jibed on material points. The prosecution successfully proved that she was the daughter of
appellant's common-law wife and that, at the time of the crime, she was 12 years old.
The declarations of complainant were accorded full faith and credence on the theory that she would not publicly
acknowledge the defilement of her virtue or subject herself to public humiliation, if her purpose was not to
obtain justice for the wrong committed. There is no evidence that she was a woman of loose morals or that she
had any ill motive to falsely accuse appellant.
"The lower court has committed an error in convicting the accused-appellant of the crimes charged and on
meting out on him the supreme penalty of death, more particularly in Criminal Cases Nos. 0532-97 and 053497."
An appeal from a criminal conviction, especially one involving the death penalty, throws the whole case open
for review. Thus, it becomes the duty of the reviewing court to correct any error in the appealed judgment,
whether or not it is made the subject of an assignment of error. 15 In this light, the Court believes that a second
issue needs to be taken up, namely:
"Whether the trial court erred in increasing the penalties via the assailed Order."
This Court's Ruling
140
The trial court was correct in convicting appellant in accordance with the challenged Decision, but was wrong
in imposing the new penalties through the assailed Order.
First Issue:
Appellant's Culpability
After a thorough review of the pleadings, the transcripts of stenographic notes and other records of the case, we
are convinced that the court a quo did not err in giving credence to the testimonies of the victim and the other
prosecution witnesses. The testimony of private complainant, detailing how she was abused by appellant on two
separate occasions and how he tried to rape her once more, was clear and convincing. We quote at length:
Q Where were you brought, towards what direction?
A Towards the second floor of our house and to the place where we sleep, sir.
Q By the way, that house where you were living in Brgy. Tibig, Lipa City on that date September 29, 1996,
what kind of house is that?
A It is made of Sawali, sir.
Q How about the flooring, how many floors does it have?

"Q While you were in your house on that date, September 29, 1996, 10:00 o'clock in the morning, do you
remember of any unusual incident that transpired if any?
A Three (3) steps sir.
A Yes, sir.
Q What do you mean by three (3) steps?
Q What was that unusual incident that transpired?
A Our stairs is made of three (3) steps, sir.
A After my mother left, I was pulled sir.
Court:
Q By whom, who pulled you?
From the ground floor?
A My step father, sir.
A Yes, sir.
141
Q What is located after going this stairs composed of three (3) steps?
A My blouse, sando and my skirt and my panty sir.
A That is the place where we sleep sir.
Q After Eladio Viernes took your clothing, after removing your clothing what did Eladio Viernes do on your
body?
Q After you [were] pulled upstairs to where you usually sleep by Eladio Viernes, what did Eladio Viernes do to
you after reaching that upper portion of your house, if he did anything?
A He placed himself on top of me.
Atty. Dimaandal
Q When Eladio Viernes placed himself on top of you, what was he wearing if any?
Leading your Honor.
A None sir.
Court
Q By the way, when Eladio Viernes pulled you to where you usually sleep, what was his wearing at that time?
Answer.
A He was wearing pants, sir.
A He undressed me sir.
Q You said that after Eladio Viernes took of[f] all your clothing he went on top of you you said he was already
naked, what did he do with hi[s] pants before he went on top of you?
Q What were you wearing that Eladio Viernes took of[f] from your body?
A He mashed [m]y breast sir.
A I was wearing a skirt which was my uniform sir.
Q What else did he do [to] you aside from mashing your breast?
Q What else i[f] any were taken of[f] from your body by Eladio Viernes?
142
A He inserted his penis into my vagina.
A He did pumping motion, sir.
Q By the way, while he was mashing your breast, what were you doing if you did anything?
Q For how long did he do this pumping motion, while his penis was inside your vagina?
A I was fighting him back sir.
A About three (3) minutes sir.
Q What did Eladio Viernes do when you fought him back while he was mashing your breast?
Q After three (3) minutes when Eladio Viernes did this pumping motion while his penis was inside your vagina,
what else did he do if he did anything more?
A He was slapping me sir.

A He removed his private organ sir." 16
Q When he inserted his penis into your vagina, what did you feel?
We also quote the testimony of the victim regarding appellant's attempt to rape her:
A Painful, sir.
"Q When was the second time, after September 26, 1996?
Q Was Eladio Viernes able to actually insert his penis[?]
A In May 1997 but I do not remember the exact date sir.
Atty. Dimaandal
Q Are you sure about the date?
Leading your honor.
Atty. Dimaandal
Q After Eladio Viernes inserted his private organ into your private organ, what else did he do if anything more?
That is the answer of the witness.
143
Prosecutor
We make it of record that the witness cannot answer.
That's why I am asking, are you sure about the date? AEHCDa
Prosecutor
A May 19, 1997 sir.
The witness is thinking . . .
Q By the way, in [the] second incident [where] Eladio Viernes according to you raped you again, where did this
happen?
A Noontime sir.
Q How did this happen?

A At Barangay Tibig, Lipa City.
A He again pulled me sir.
Q In what particular place in Bgy. Tibig were you raped for the second time by Eladio Viernes?
Q By the way on that second occasion, where was your mother?
Q In the upper portion of our house at the place where we are sleeping sir.
A She was working sir.
Q The same place where the second rape was committed?
Q You said that you were again pulled, where were you brought by Eladio Viernes at the same time around?
A Yes, sir.
A The upper portion of our house and at the place where we were sleeping sir.
Q Around what time did this happen, this second rape happened?
Q After you were pulled by Eladio Viernes, what did Eladio Viernes do to you?
Atty. Dimaandal
144
A He undressed me sir.
Q What did you do when Eladio Viernes again mashed your breast?
Q What kind of wearing apparel that you were wearing that were taken off by Eladio Viernes on that same
occasion?
A I was wearing a skirt sir.
Q After you were undressed by Eladio Viernes what did Eladio Viernes do to you if he did anything?
A He again placed himself on top of me sir.
Q What was he wearing he placed himself on top of you if he was wearing anything?
A He was wearing pants sir.
Q When he placed himself on top of you, where was his pants?
A I was fighting him back sir.
Q What else did he do aside from mashing your breast, what did Eladio Viernes do to you?
A He was inserting his penis into my vagina sir.
Q When Eladio Viernes was inserting his penis into your vagina, what did you do?
A I was struggling sir.
Q When you struggled, what happened to that effort of Eladio Viernes to insert his penis into your vagina?
A It was not inserted sir.
A He removed pants sir.
Q When Eladio Viernes went on top of you, what did you [sic] do if he anything more on the second time
around?
Q What did Eladio Viernes do when he failed to insert his penis into your vagina?
A He again mashed my breast sir.
A He just placed it between my thighs sir.
145
Q After placing his penis between your thighs, what else did Eladio Viernes do if he did anything?
A [H]e placed his penis between my thighs and he again did the pumping motion sir." 17
Atty. Dimaandal
Pertinent portions of the testimony of complainant regarding her second defilement in the hands of appellant
read as follows:
May we interrupt . . That after translations the answer of this witness. He just place on my thigh, there was no
vagina [sic].
"Q Miss Witness, on August 18, 1997 around 12:00 noon where were you?
Q You said that Eladio Viernes placed his penis in your thighs, in what particular part of your thighs?
A I was at home sir.
Atty. Dimaandal
Q What were you doing?
Leading
A I just arrived from school sir.
Court
Q You said that you were in your house, where was this house located on that date, August 18, 1997?
Answer.
A At Barangay Tibig sir.
Interpreter
Q You said that you had just arrived from school, when you arrived in your house in Brgy. Tibig, Lipa City on
August 18, 1997 around 12 noon, whom did you meet in your house if you met anybody there?
Witness pointing to the inner portion of her two thighs

A My step father sir.
Q What did Viernes do after he put his penis between the inner portion of your two thighs?
146
Q Meaning Eladio Viernes?
Q How far was this tricycle from your house?
A Yes sir. SDTaHc
A Near the street sir.
Q Seeing Eladio Viernes in your house on that date August 18, 1997 around 12 noon, what did he do if he did
anything upon seeing him or meeting you?
Q Around how many meters if you can calculate was this tricycle from your house or can you point distance
from the place where you are sitting now to any place inside the court room?
A He instructed our companions in the house to clean the motor tricycle sir.
Interpreter
Q After instructing your companions in your house to clean the motor tricycle, what else did Eladio Viernes do,
if he did anything more?
Witness pointing to the railings inside the Court room as their house and the witness pointed to the western wall
of the court room as the place where the tricycle was to be around 7 meters sir.
A He asked me to fetch two (2) containers of water sir.
Q What did your two (2) brothers and one (1) step brother do if they did anything more upon receiving the
instruction from your step father Eladio Viernes to clean the motor tricycle?
Q By the way, these your companions of your house, [sic] who where given the instruction by Eladio Viernes to
clean the motor tricycle, who are these companions [sic] of your house?
A My two brothers and one step brother, sir.
Q How old were these two brothers of yours and your one step brother who were given the instruction by Eladio
Viernes to clean the motor tricycle?
A My step brother was 12 years old; my two brothers were six and 5 years old sir.
A They followed the instruction of my step father to clean the tricycle sir.
Q How about you when you were instructed by your step father to fetch two (2) containers of water, what did
you do?
A I brought the water near the comfort room sir.
Q After you brought the two (2) containers of water to the place were you said a while ago, what did Eladio
Viernes do to you if he did anything?
147
A He followed me sir.
A He will again repeat raping me sir.
Q After Eladio Viernes followed you, what did he do [to] you if he did anything?
Q When you got frightened, what did you do?
A I was frightened sir.
A I tried to struggle sir.
Q Why?
Q Why did you struggle, what was Eladio Viernes doing [to] you?
Atty. Dimaandal
A He pulled up my skirt and when I was trying to go out from the comfort room he was stopping me from going
out sir.
Not responsive your honor. I move to strike out the answer of the witness.'
Q What happened to your struggle, to free from the hold of Eladio Viernes when you were inside the comfort
room?
Court
A I could not go out [o]f the comfort room because I was held by my step father sir.
Continue.
Q After Eladio Viernes pulled up your skirt, what did he do with you if he did anything more?
Q Why did you get frightened?
A He pulled down my panty sir.
A Because I felt that he will repeat the same thing sir.
Q Up to what portion was that panty of yours pulled down?
Q What do you mean repeat the same thing?
148
Interpreter
A I was standing and I was struggling sir.
Witness pointing to her ankle
Q After Eladio Viernes pulled down your panty up to your ankle, what did he do to you?
A He was inserting his penis into my vagina, sir.
Q When Eladio Viernes was actually able to insert his penis into your vagina, what was the position of your
body aside from the fact that you were standing?
A I was standing with my knees bent sir.
Q What was your position in relation to Eladio Viernes when he was inserting his penis into your vagina?
Q After Eladio Viernes was able to insert his, penis into your vagina while you are in a standing position, how
long was his penis inside your vagina?
A I was standing sir.
A About three (3) minutes sir." 18
Q How about Eladio Viernes, where was he in relation to you while he was inserting his penis into your vagina?
Catherine impressed the trial court as "a decent woman [who has] not been shown to be of loose morals or one
who goes out with different men any time of the day or night." 19 A rape victim who testifies in a categorical,
straightforward, spontaneous and frank manner and remains consistent is a credible witness. 20 It is wellentrenched that the trial court is in the best position to assess the credibility of witnesses and their testimonies
because of its unique opportunity to observe them firsthand and to note their demeanor, conduct and attitude on
the stand. 21 In the absence of any showing that its assessment is flawed, an appellate tribunal is bound by it.
CScaDH
A He was at my back sir.
Q What happened to this effort of Eladio Viernes in trying to insert his private organ into your private organ?
A It was inserted sir.
Despite the tender age of complainant, her accounts on direct and cross-examination were replete with details
that jibed on material points. 22 Considering her young age, it would have been highly improbable for her to
fabricate a charge so humiliating to her and her family, had she not been truly subjected to the painful
experience of sexual abuse. 23
Q You said that you were standing, what was the form or what was the position of your body aside from the fact
that you were standing when Eladio Viernes was able to insert his penis into your vagina while he was at your
back?
149
The moral ascendancy of appellant as the common-law husband of complainant's mother takes the place of
force and intimidation as an element of rape, 24 although the presence of such element is apparent from
Catherine's testimony.
Alibi and Corroboration
Appellant denies having raped Catherine on September 29, 1996, claiming she was at her grandmother's house
in San Guillermo, while he was outside his house digging a toilet pit. Allegedly, in March 1997, he was on duty
as a security guard at the Smart Tower; and on August 18, 1997, he was busy the whole day plying his tricycle
route.
The trial court correctly disbelieved his alibi. Alibi and denial, if unsubstantiated by clear and convincing
evidence, are negative and self-serving evidence that deserve no weight in law. They cannot be given greater
evidentiary value over a credible witness' testimony on affirmative matters. 25 Except for Lina Linatoc's
corroboration, the only evidence supporting the alibi and denial of appellant is his own say-so. And Lina
happens to be his common-law wife; thus, her testimony is necessarily suspect and cannot prevail over the
testimonies of more credible witnesses. 26 Negative testimony cannot prevail over the offended party's positive
identification of the accused as her rapist. 27
Finally, for alibi to prosper, it must be shown that the accused was in another place at the time the crime was
committed, and that it would have been physically impossible for him to be at the scene of the crime at the time
it was committed. 28 Such physical impossibility was not proven in the present case. The Smart Tower where
appellant worked as a security guard was located also in Barangay Tibig, Lipa City, and was only a thirtyminute walk from his house. The tricycle station, on the other hand, was only 1000 meters away. Note that he
had a motorized tricycle at his disposal. His alibi, therefore, is unworthy of credence.
Attempt to Settle the Case
Appellant strongly denies the prosecution's assertion that he attempted to settle the case with complainant's
family.
We remain unconvinced. Instead, we concur with the finding of the RTC that the letter dated November 25,
1997 addressed to Orlando and Catherine Linatoc, signed by appellant and delivered by Lina Linatoc was
admissible evidence against appellant. Perusal of the letter reveals that he attempted to bribe Orlando with
P150,000 or a house and lot and a promise of an additional P100,000 in exchange for dropping the charges
against him. 29 Under Section 27, Rule 130 of the Rules of Court, an offer of compromise by the accused may
be received in evidence as an implied admission of guilt.
Voluntary Surrender
Appellant pleads for leniency on account of his alleged voluntary surrender.
We disagree. The act of surrender must be spontaneous, accompanied by an acknowledgment of guilt, or an

intention to save the authorities the trouble and the expense that search and capture would require. 30 Going to
the police station "to clear his name" does not show any intent of appellant to surrender unconditionally to the
authorities. 31
Medicolegal Officer's Testimony
Appellant avers that the medicolegal officer who examined complainant admitted being unsure of her findings.
We disagree with the assessment by appellant of the testimony of the medicolegal officer. However, even if we
discount the testimony of the latter, complainant's testimony by itself can sustain the former's conviction.
Medical examination is not an indispensable requirement, and its absence does not affect the verdict of
conviction, if sufficient evidence is presented to prove the crime charged. 32 When a rape complainant,
especially one of tender age like Catherine, says that she has been raped, she in effect says all that is necessary
to show that she has indeed been raped.
Civil Indemnity and Moral Damages
150
The Solicitor General takes issue with the damages awarded by the RTC. In the assailed Order, it ordered
appellant to pay P50,000 in civil indemnity, P10,000 in moral damages and P5,000 in exemplary damages for
every count of consummated rape; and P25,000 in civil indemnity for the attempted rape.
Recent jurisprudence has increased the indemnification for the victim in a case of consummated rape to P75,000
if the crime was committed with, or effectively qualified by, any of the circumstances under which the death
penalty is authorized by the applicable amendatory laws. 33 Moral damages are pegged at P50,000 without
further need of pleading or proof.
Exemplary damages, on the other hand, are granted when an aggravating circumstance, which is not offset by a
mitigating circumstance, attended the commission of the crime. In several cases, the relationship between the
appellant and the rape victim justifies the award of exemplary damages, as in this case. 34
government would place the accused in double jeopardy. This ruling was followed in People v. Pomeroy 38 and
People v. Ruiz. 39
The 1964 amendment of the Rules, however, allowed the fiscal to move for the modification or the setting aside
of the judgment before it became final or an appeal was perfected. 40 Under this amendment, a judgment
acquired finality and the trial court lost jurisdiction only in the following cases: (1) after the 15-day period to
appeal lapsed, 41 (2) when the defendant voluntarily submitted to the execution of judgment, (3) when the
defendant perfected the appeal, 42 (4) when the accused withdrew the appeal, (5) when the accused expressly
waived in writing the right to appeal, 43 and (6) when the accused filed a petition for probation. 44 Under this
amendment, the trial court had plenary power to alter or revise its judgment in accordance with the requirements
of law and justice.
In 1985, Section 7 of Rule 120 was amended to include the phrase "upon motion of the accused" effectively
resurrecting the Ang Cho Kio ruling prohibiting the prosecution from seeking a modification of a judgment of
conviction. 45 As amended, the provision was worded as follows:
Second Issue:
Modification of Penalties
One day after the promulgation of the April 6, 1998 Decision, the prosecution filed a Motion for
Reconsideration seeking the imposition of the death penalty on appellant for the two cases of consummated rape
and reclusion temporal for the attempted rape, in accordance with Section 11 of RA 7659. The prosecution
argued that the Motion would not place appellant in double jeopardy, because "what is sought is just the
imposition of the proper penalty as provided by law." 35 The trial court concurred with the prosecution and
granted the Motion in the assailed Order, saying that the Motion was unopposed and that there was no violation
of appellant's right against double jeopardy. 36
We disagree. Conflicting decisions rendered over the years both allowing the prosecution to seek the
reconsideration of a conviction and prohibiting it therefrom necessitate a review of the rule on the
modification of judgments of conviction. Early on, in People v. Ang Cho Kio, 37 the Court, citing Article 2 of
Rule 118 of the pre-1964 Rules of Court, held that the prosecution cannot move to increase the penalty imposed
in a promulgated judgment. Reopening the case for the purpose of increasing the penalty as sought by the
"SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified
or set aside by the court rendering it before the judgment has become final or appeal has been perfected. A
judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or served, or the accused has expressly waived in writing his right
to appeal, or the accused has applied for probation."
Under this Rule, a judgment of conviction, before it became final, could be modified or set aside upon motion
of the accused. 46 It obviously aims to protect the accused from being put anew to defend himself from more
serious offenses or penalties which the prosecution or the court may have overlooked in the original trial. It
does not however bar him from seeking or receiving more favorable modifications.
Significantly, the present Rules, as amended last year, retained the phrase "upon motion of the accused," as
follows:
151
"SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified
or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a
judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been
partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has
applied for probation."
Puno and Buena, JJ., abroad on official business.

||| (People v. Viernes y Ildefonso, G.R. Nos. 136733-35, [December 13, 2001], 423 PHIL 463-490)
Therefore, the assailed Order is erroneous and reversible. The trial court cannot increase the penalties without
the consent of the accused. TCDHaE
FIRST DIVISION
We close this Decision with an exhortation to the defense counsel to be more circumspect in defending
appellant and others similarly situated. Counsel should have immediately objected to the Motion for
Reconsideration in the trial court. Because of this failure to take exception, the RTC judge meekly granted the
relief prayed for and condemned the accused, inter alia, to two death sentences.
Before this Court, counsel was again caught flat-footed by not raising the erroneous basis of the assailed Order.
We cannot disregard such serious lapse. We urge counsel, as well as all the members of the bench and the bar, to
be more vigilant in protecting the rights of the accused especially those in jeopardy of the death penalty
and to keep abreast of legal developments. Indeed, the learning process in law never ceases. 47 Utmost
dedication to duty and excellence is expected of every lawyer.
WHEREFORE, the appeal is hereby PARTIALLY GRANTED. The assailed Order is ANNULLED and SET
ASIDE, while the assailed Decision is AFFIRMED and REINSTATED with the MODIFICATION that the
awards of moral damages are increased to P50,000 and those for exemplary damages to P25,000 for each
consummated rape, pursuant to current jurisprudence. 48
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Ynares-Santiago, De Leon,
Jr., Sandoval-Gutierrez and Carpio, JJ., concur.
[G.R. No. 147231. February 18, 2004.]
PEOPLE OF THE PHILIPPINES, appellee, vs. RONNIE ABOLIDOR, CLAUDIO BARCIMO, JR. and
FRANCISCO COMODA, accused, CLAUDIO BARCIMO, JR., appellant.
DECISION
YNARES-SANTIAGO, J p:
This is an appeal from the decision 1 dated January 31, 2000 of the Regional Trial Court of Iloilo City, Branch
31, in Criminal Case No. 40948, convicting Claudio Barcimo, Jr. @ "Noc-noc", Ronnie Abolidor and Francisco
Comoda of the crime of murder, sentencing them to suffer the penalty of reclusion perpetua and ordering them
to pay P100,000.00 as civil indemnity, P16,000.00 as actual damages and P30,000.00 as moral and exemplary
damages.
Claudio Barcimo, Jr., Ronnie Abolidor and Francisco Comoda were indicted for Murder in an Information
alleging:
152
That on or about the 14th day of June 1993, in the Municipality of New Lucena, Iloilo, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and helping one
another together with another unidentified person, armed with firearms of unknown caliber, with deliberate
intent and decided purpose to kill, with treachery, superior strength and evident premeditation, did then and
there, willfully, unlawfully and feloniously attack and shoot Thelma Subosa with said firearms hitting the latter
on the head, chest and other parts of her body which caused the death of said Thelma Subosa immediately
thereafter.
CONTRARY TO LAW. 2
Upon arraignment, 3 the three accused pleaded not guilty. Trial on the merits ensued.
The victim, Thelma Subosa, was the mother of 14 children with her deceased husband, Primo Subosa.
Subsequently, she cohabited with her common-law husband Warlito Huesca and lived together with some of her
children in Brgy. Janipa-an, Oeste, New Lucena, Ilo-ilo. Thereafter, Warlito Huesca also died.
In the early morning of June 14, 1993, a day after Warlito was buried, the victim, her children namely, Ellyn,
Roselyn, Evelyn, Manilyn, Leopoldo and Lilibeth, and Milagros Huesca, the younger sister of Warlito Huesca,
were awakened by the forcible opening of the door of their house. Four men entered the house and declared a
"hold up". The victim pleaded not to be harmed. Instead, accused Ronnie Abolidor tied her mouth with a
handkerchief to silence her. Then appellant Claudio Barcimo, Jr. shot the victim several times causing her
instantaneous death. 4
Prosecution witnesses Ellyn and Roselyn identified Claudio Barcimo, Jr. and Ronnie Abolidor since they slept
on the same mat with the victim and a kerosene lamp was near the victim's head. 5 Both testified that they
knew Ronnie Abolidor because he was their neighbor for several years, and Claudio Barcimo, Jr. because he
was a friend of their deceased stepfather. Francisco Comoda was later identified by the witnesses at the police
station. 6
Roselyn also testified that on June 12, 1993, at the burial of their stepfather, the victim told her that it was
Claudio Barcimo, Jr. @ "Noc-Noc" who killed Warlito Huesca. 7
For his part, appellant denied any participation in the killing of Thelma Subosa and claimed that he could not
have done it because he was a good friend of Warlito Huesca; that on June 13, 1993, at around 4:00 p.m., he
was with Brgy. Capt. Buol in a celebration at the house of Brgy. Capt. Gerardo Paniza at Brgy. Dawis. He had
dinner and watched game of mahjong; that at around 10:00 p.m., he went to sleep on the sofa near the mahjong
table; that the mahjong game lasted until 4:00 a.m. the following day; that he and Capt. Buol went back to
New Lucena at about 6:00 a.m. of June 14, 1993; and on the next day, he left for Manila for treatment of
tuberculosis. 8
After trial, the trial court convicted the three accused on January 31, 2000 in a decision, the dispositive portion
of which reads:
WHEREFORE, the prosecution having sufficiently established the guilt of all the three accused, namely,
Claudio Barcimo, Jr., alias Nocnoc, Ronilo Abolidor alias Ronnie and Francisco Comoda, beyond reasonable
doubt (Rule 133, Sec. 2, Revised Rules of Court) of the offense of Murder under Art. 248, R.P.C. as alleged in
the Information, this Court hereby renders judgment sentencing all the said accused to suffer the penalty of
imprisonment consisting of Reclusion Perpetua, with all the attendant accessory penalties, to pay P100,000.00
as indemnity for death to the heirs of the late Thelma Sobusa, to pay the sum of P16,000.00 as actual damages,
and P30,000.00 by way of moral and exemplary damages and to pay the costs. AHSEaD
SO ORDERED. 9
Only Claudio Barcimo, Jr. appealed the decision raising the following assignment of errors:
A. THE TRIAL COURT ERRED IN RELYING ON THE TESTIMONIES OF PROSECUTION WITNESSES

ELLEN SOBUSA AND ROSELYN SOBUSA AND IN NOT APPRECIATING THE TESTIMONY OF THE
AUNT OF SAID WITNESSES AS CORROBORATED BY THE BARANGAY CAPTAIN OF THE PLACE
153
WHERE THE INCIDENT HAPPENED THAT THE SAID PROSECUTION WITNESSES HAVE NOT
IDENTIFIED THE KILLERS.
B. THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY IS ATTENDANT IN THE

COMMISSION OF THE CRIME.
C. THE TRIAL COURT ERRED IN HOLDING THAT NIGHTTIME IS ATTENDANT IN THE

COMMISSION OF THE CRIME.
D. THE TRIAL COURT ERRED IN NOT APPRECIATING THE VOLUNTARY SURRENDER OF THE
ACCUSED. 10
Appellant Claudio Barcimo, Jr. contends that his identification by Ellyn and Roselyn as one of the assailants is
doubtful because when asked whether they know the assailants, they replied in the negative.
The contention is without merit.
By challenging his identification by the witnesses of the prosecution, as one of the assailants of the victim, the
appellant attacks the credibility of said witnesses and the probative weight of their testimonies. However, when
the issue of credibility of witnesses is in question, the findings of facts of the trial court, its calibration of the
testimonies of witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored
on said findings are accorded by the appellate court high respect if not conclusive effect, precisely because of
the unique advantage of the trial court in observing and monitoring at close range the demeanor, deportment and
conduct of the witnesses as they testify, unless the trial court has overlooked, misconstrued or misinterpreted
cogent facts of substance which if considered might affect the result of the case. 11
In the case at bar, there is no showing that the trial court overlooked, misunderstood, misapplied or
misconstrued any fact of substance that might materially affect the outcome of the case. The trial court found
the collective testimonies of the prosecution witnesses Ellyn and Roselyn to be:
. . . generally impressionable but their natural naivete and inexperience make them reliable witnesses. Their
statements are generally free from any bias or prejudice as to be slanted or malicious. It is observed that the
testimonies of Ellyn and Roselyn Sobusa are direct, straightforward and delivered without any hesitancy
whatsoever. 12
The two prosecution witnesses, Ellyn and Roselyn Sobusa, positively identified appellant as the one who shot
the victim. Although the incident occurred during nighttime, the house of the victim was sufficiently illuminated
by the kerosene lamp placed near the head of the victim, which provided enough light for purposes of
identifying the killers.
On direct testimony, Ellyn Sobusa narrated the incident as follows:
Q. Can you recall in the morning of June 14, 1993 if there was any unusual incident that happened?
A. Yes, sir.
Q. What is that incident about?
A. At around that time I was awakened by the sound of the opening of the door. I saw four (4) persons entered
our house and one of them said, "This is a hold up." My mother then pleaded, "Do not kill me. Have mercy."
Q. What happened after your mother pleaded have mercy?
154
A. There was a shot and I ducked. Then another shot was fired which I do not know anymore because I lied
with my face down.
Q. Miss witness, this incident happened at around 2:00 o'clock in the morning, why are you sure that Ronnie
Abolidor was one of the four persons who entered your house?
A. Because we have a kerosene lamp placed very near the head of my mother.
Q. Do you know the person who said this is a hold up?
Q. How far is that kerosene lamp from your mother?
A. Yes, sir.
A. Witness demonstrates about 5 to 6 inches more or less.
Q. Who is he?
Q. At that time that she was shot by Nocnoc, how far is Nocnoc from the kerosene lamp?
A. Nocnoc.
A. Nocnoc was situated on the feet of my mother.
Q. How far is this Nocnoc when you said he shot your mother?
Q. What was the position of Nocnoc when he shot your mother?
A. Very near.
A. He was standing. 13
Q. What was the position of your mother by the time she was shot by Nocnoc?
A. She was lying down.
xxx xxx xxx
Considering the illumination from the kerosene lamp, and Ellyn's proximity to her mother and to the appellant,
she could have clearly seen and recognized the appellant when he shot the victim.
In People v. Prieto, 14 we ruled that the illumination provided by kerosene lamp or wicklamps, and flashlights,
moonlight or starlight may, in proper situations, be considered as sufficient illumination, making the attack on
the credibility of witnesses solely on that ground unmeritorious.
155
Moreover, Roselyn testified that she was familiar with the voice of the appellant as he was a friend of his
stepfather and she visited appellant's house several times. 15 The voice of a person is an acceptable means of
identification where it is established that the witness and the accused knew each other personally and closely for
a number of years. Once a person has gained familiarity with another, identification becomes quite an easy task
even from a considerable distance. 16 We also note that appellant did not deny that Warlito Huesca was his
good friend and that he visited their house many times. 17
We agree with the trial court's appreciation of the presence of qualifying circumstance of treachery. There is
treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in
the execution thereof which tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make. It is settled that there is treachery if the victim, when
killed, was sleeping or had just awakened, because in such cases the victim was in no position to put up any
form of defense. 21
In the case at bar, the victim had just awakened from sleep because of the forcible opening of their door. When
she was shot by appellant, she was lying down on the mat with a handkerchief tied around her mouth.
Obviously, in this position she can not defend herself from the aggression of the perpetrators.
The credibility of the prosecution witnesses Ellyn and Roselyn is not adversely affected by their failure to
immediately report the identities of the perpetrators to the responding authorities immediately after the incident.
Indubitably, fear stifled the witnesses from voicing their knowledge of the identities of the perpetrators. There is
no rule that a witness should immediately name the suspect in a crime. 18 Nevertheless, the delay was not that
long as when the police authorities investigated the witnesses in the afternoon of June 14, 1993 at Brgy.
Agutayan., Sta. Barbara, Iloilo, they named appellant and accused Ronnie Abolidor as two of the perpetrators.
19
To escape criminal liability, appellant invokes the defense of alibi and denial. He asserts that he could not have
done it considering that Warlito Huesca, the common-law husband of the victim, was his good friend and at the
time of the incident he was at Brgy. Dawis together with Brgy. Capt. Buol in the house of Brgy. Capt. Gerardo
Pineza watching the game of mahjong.
We are not convinced.
It is well settled that positive identification, where categorical and consistent and not attended by any showing
of ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial which, if not
substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving weight in
law. 20 Hence, the defense of denial and alibi cannot prosper in the light of the positive identification by
eyewitnesses Ellyn Sobusa and Roselyn Sobusa that appellant was the one who shot their mother.
The trial court did not err in disregarding the mitigating circumstance of voluntary surrender. To benefit an
accused, the following requisites must be proven, namely: (1) the offender has not actually been arrested; (2)
the offender surrendered himself to a person in authority; and (3) the surrender was voluntary. A surrender to be
voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the
authorities, either because he acknowledges his guilt, or he wishes to save them the trouble and expense
necessarily incurred in his search and capture. Voluntary surrender presupposes repentance. 22 In People v.
Viernes, 23 we held that going to the police station to clear one's name does not show any intent to surrender
unconditionally to the authorities.
In the case at bar, appellant surrendered to the authorities after more than one year had lapsed since the incident
and in order to disclaim responsibility for the killing of the victim. This neither shows repentance or
acknowledgment of the crime nor intention to save the government the trouble and expense necessarily incurred
in his search and capture. Besides, at the time of his surrender, there was a pending warrant of arrest against
him. 24 Hence, he should not be credited with the mitigating circumstance of voluntary surrender.
Appellant is guilty of Murder, qualified by treachery, for the killing of Thelma Sobusa. Article 248 of the
Revised Penal Code, as amended, imposes the penalty of reclusion perpetua to death for Murder. The trial court
was correct in imposing the penalty of reclusion perpetua, there being no aggravating or mitigating
circumstance, pursuant to Article 63, paragraph 2 of the Revised Penal Code.
156
The trial court awarded the amount of P100,000.00 as civil indemnity to the heirs of the victim. Said amount
must be reduced to P50,000.00, in line with prevailing jurisprudence. 25
Davide, Jr., C.J., Panganiban, Carpio and Azcuna, JJ., concur

||| (People v. Abolidor, G.R. No. 147231, [February 18, 2004], 467 PHIL 709-722)
The award of actual damages must also be modified. While appellant admitted the amount of P19,000.00 as
actual damages, 26 the trial court only awarded the amount of P16,000.00. 27 Ordinarily, receipts should
support claims of actual damages, but where the amount claimed was admitted, it should be granted. 28
Consequently, the heirs of the victim is entitled to be awarded the amount of P19,000.00 as actual damages.
The trial court likewise erred when it awarded the amount of P30,000.00 as moral and exemplary damages
without indicating what amount constitutes moral damages and exemplary damages. In murder and homicide
cases, the award of moral damages should be substantiated by evidence. 29 In the case at bar, the prosecution
failed to present proof of moral damages. Therefore, the same should be deleted.
On the other hand, exemplary damages must be awarded in view of the attendance of treachery which qualified
the killing to Murder. Under Article 2230 of the Civil Code, exemplary damages as part of the civil liability may
be imposed when the crime was committed with one or more aggravating circumstances. The term aggravating
circumstances as used therein is to be understood in its broad or generic sense since the law did not specify
otherwise. The ordinary qualifying nature of an aggravating circumstance is a distinction that should only be of
consequence to the criminal, rather than to the civil liability of the offender. Thus, the heirs of the victim are
entitled to exemplary damages in the amount of P25,000.00. 30
EN BANC
[G.R. No. 37271. July 1, 1933.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. MAGDALENA CALISO, defendantappellant.
Juan Sumulong, for appellant.
Attorney-General Jaranilla, for appellee.

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Iloilo City, Branch 31, in
Criminal Case No. 40948, insofar as it finds Claudio Barcimo, Jr. @ "Noc-noc" guilty beyond reasonable doubt
of the crime of murder and sentences him to suffer the penalty of reclusion perpetua is AFFIRMED with the
MODIFICATION that appellant is ORDERED to pay the heirs of Thelma Sobusa the amounts of P50,000.00 as
civil indemnity, P19,000.00 as actual damages and P25,000.00 as exemplary damages. The award of moral
damages is DELETED. CSTcEI
SYLLABUS
1. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE; ABUSE OF CONFIDENCE. There is abuse of

confidence where a domestic servant in charge of a child, poisons and causes the death of the child.
Costs de oficio.
SO ORDERED.
157
2. ID.; ID.; DWELLING. The circumstance of the crime having been committed in the dwelling of the
offended party can not be considered an aggravating circumstance where both the victim and the accused lived
in one and the same house when the crime was committed.
y otras partes vitales de los organos internos que le produjeron necesariamente la muerte de la victima, quien
sucumbio pocas horas despues; que en la comision de este delito, han concurrido las circunstancias agravantes
de alevosia, abuso de confianza y que el acto se ha cometido en la propia morada de los padres de la victima.
3. ID.; ID.; TREACHERY. Treachery, being inherent in the crime of murder committed by means of
poisoning, can nit aggravate the penalty provided for such crime.
"Despues de presentadas las pruebas, tanto de la acusacion, como de la defensa, y despues de oidos los
brillantes informes aducidos tanto por el Fiscal Provincial, como por el abogado de oficio de la acusada, el
Juzgado se ha reservado la decision para este dia, no sin antes felicitar tanto a la acusacion como a la defensa, la
primera por lo concienzudo en la reunion y presentacion de sus pruebas, y la segunda por el interes grande con
que ha demostrado a favor de la acusada. El Juzgado ha querido tomar tiempo para decidir esta causa, porque se
da cuenta de lo grave que es el delito cometido y de las circunstancias tanto de la acusada como de los
ofendidos en esta causa. Por un lado, esta la acusada, que es una mujer que pertenece al sexo debil, en la
primavera de su vida, a quien una sentencia podria privar de todos los beneficios que la vida le ofrece. Por otro
lado, una madre loca de dolor que ha perdido al unico hijo varon de la familia y que considera a la acusada
como la persona que le ha arrebatado su unico cario. Por eso el Juzgado ha querido, hasta donde le ha sido
posible, poner toda su atencion en todos los detalles de las pruebas, observando hasta los menores actos de los
testigos y de la acusada.
4. ID.; MITIGATING CIRCUMSTANCE; PASSION OR OBFUSCATION. Passion and obfuscation can not
mitigate the penalty where the accused was actuated more by a spirit of lawlessness and revenge than by any
sudden impulse of natural and uncontrollable fury.
DECISION
ABAD SANTOS, J p:
The appellant in this case was convicted of the crime of murder by the Court of First Instance of Occidental
Negros, and sentenced to suffer the penalty of reclusion perpetua, to indemnify the parents of the deceased in
the sum of P1,000, with the accessory penalties prescribed by law, and to pay the costs. On this appeal, her
counsel de oficio attacks the findings of fact of the trial court, but does not raise any question of law.
The questions of fact involved in this case are fully discussed in a well considered decision of the trial court,
presided over by the then Judge Quirico Abeto, which decision reads as follows:
"Se halla acusada Magdalena Caliso del delito de asesinato de un nio de 9 meses de edad, ocurrido en La
Carlota, Negros Occidental, el dia 8 de febrero del presente ao, 1932. La querella alega que la acusada, siendo
una criada de los Sres. Esmeralda (Emilio), voluntaria, ilegal y criminalmente y con el proposito de satisfacer
una venganza, administro cierta cantidad de acido acetico concentrado, que es una sustancia venenosa, a Emilio
Esmeralda, Jr., un nio de 9 meses de edad, causandole quemaduras en la boca, en la garganta, en los intestinos
"Y de las pruebas presentadas, el Juzgado encuentra que en la tarde del dia 8 de febrero de 1932, mientras los
esposos Sres. Emilio Esmeralda y Flora Gonzalez estaban durmiendo tomando la siesta, repentinamente la Sra.
de Esmeralda se desperto porque oyo un grito agudo de su hijo Emilio Esmeralda, de 9 meses de edad, que
estaba durmiendo en una cama al lado opuesto del sitio donde estaba ella durmiendo con su marido. Cuando la
Sra. de Esmeralda llego, seguida de su marido, a la cama donde habia dejado dormido a su hijo, al levantar el
mosquitero de la cama, percibio inmediatamente un olor fuerte de acido acetico y encontro a su hijo, que seguia
llorando fuertemente, con los ojos en blanco, los labios hinchados y blanquecinos y la cara amoratada, y al
levantarle percibio olor de acido acetico en la respiracion del nio. Entonces grito preguntando quien habia
puesto acido acetico en la boca de su hijo, y como ella es farmaceutica de prodesion, se acordo inmediatamente
de un antidoto que podia neutralizar los efectos del acido acetico y ella misma saco agua de cal y mojando un
algodon hidrofilo, limpio la boca del nio, al mismo tiempo que mandaba a su marido que llamara por telefono
al doctor. Pocos momentos despues llego el Dr. Augusto Locsin, quien segun su declaracion, noto
inmediatamente el olor de acido en la respiracion del nio, y quiso hacer la primera cura, lavando el estomago
del nio, pero la madre no quiso que el lavado llagara hasta el estomago, por el temor de lastimar la garganta del
chiquillo con el 'catheter', y por este motivo el lavado solamente se pudo hacer hasta la garganta del nio.
Despues de algun tiempo, llegaron, procedentes de Bacolod, los Dres. Orosa y Ochoa, quienes por telefono
habian sido llamados tambien por el padre de la victima. El Dr. Orosa es el jefe medico del Hospital Provincial
de esta provincia, y el Dr. Ochoa es uno de los medicos residentes en dicho hospital, especialista en las
enfermedades de los cinco sentidos. Ambos doctores declararon positivamente que habian percibido el olor de
158
acido acetico en la respiracion del nio, y habiendo ellos concluido que el chiquillo habia tomado acido acetico,
aplicaron la cura para eliminar dicha sustancia del organismo del nio, y despues de hacer las primeras curas,
llevaron al nio al Hospital Provincial y alli murio pocos minutos despues de haber llegado.
"Ambos doctores, asi como el Dr. Locsin, son unanimes en la afirmacion de que la muerte del chiquillo se debio
al envenenamiento por medio de acido acetico, y todos, especialmente el Dr. Ochoa, coinciden en la opinion de
que la muerte ha sido por asfixia, pues el acido acetico ha hecho estragos en la laringe del nio y este no pudo
respirar. El Dr. Ochoa que, como se ha dicho, es un especialista en los cinco sentidos, examino la boca y la
garganta del nio y encontro alli quemaduras ocasionadas, segun el, por el acido acetico. Y tan seguros estan los
doctores de que el nio habia tomado acido acetico y que la muerte del mismo se debio a esta sustancia, que el
mismo Dr. Orosa, que es un medico de muy larga experiencia y un experto cirujano, le aseguro al Fiscal que no
habia necesidad de autopsia para llegar a una conclusion rayana a la seguridad sobre la causa de la muerte del
chiquillo, y que aun cuando la autopsia demostrara que no existia acido acetico en los intestinos del nio, ya
porque este habia sido absorbido por el organismo, o ya porque el estomago habia sido lavado, el estaba
segurisimo de que la muerte se debio al envenenamiento por acido acetico, porque el habia olido esa sustancia,
cuyo olor es inconfundible, en la respiracion del nio y ha visto los estragos de la sustancia en la garganta y en
la boca del occiso. Ambos medicos, de un modo positivo, sin dudar ni un momento, aseguraron al Juzgado de
que la causa de la muerte, como se ha repetido varias veces, es por envenenamiento por acido acetico. Y el
Juzgado esta conforme en que en tales circunstancias, no habia necesidad de autopsia para que el Juzgado pueda
concluir, en vista de las afirmaciones de los medicos basadas en los hechos por ellos encontrados, que la muerte
ha sido por envenenamiento por acido acetico.
"El Juzgado no tiene duda alguna de la competencia de estos dos doctores, sobre todo tratandose de la opinion
del Dr. Ochoa, que es un especialista en los cinco sentidos y que ha reconocido la garganta y la boca del nio,
en las cuales encontro quemaduras producidas por acido acetico.
"Aparte de esto, la madre del occiso, que es una farmaceutica, acostumbrada a oler y distinguir sustancias,
percibio el olor del acido acetico en los primeros momentos en que alzo a su hijo de la cama. El marido de esta
seora, Sr. Emilio Esmeralda, tambien es un quimico y aseguro tambien haber olido el olor fuerte del acido
acetico desde los primeros momentos. Aparte de estas dos personas que pueden equivocarse, ya por su pasion o
por las preocupaciones de momento por estar interesados por su hijo, esta el Sr. Julian Gomeri, otro quimico
que vivia en la misma casa, quien aseguro al Juzgado que al entrar en el cuarto donde estaba el chiquillo en
brazos de su madre, olio inmediatamente el olor sofocante del acido acetico, tanto es asi que pregunto
inmediatamente quien habia puesto acido acetico en la cama del nio y en seguida se puso a buscar por si habia
dicha sustancia en la cama del nio, pero no encontro ninguna botella de acido acetico, ni rastro de esta
sustancia en la cama, sino en la respiracion del nio.
"Por eso el Juzgado repite que esta probado fuera de toda duda racional que el nio Emilio Esmeralda, Jr.,
murio a consecuencia de envenenamiento de acido acetico, y es insostenible la teoria de que pudo haber tenido
una indigestion por haber ingerido jugo de naranja de California despues de haber tomado leche, y de que el
olor del acido acetico podia derivarse del vomito del chiquillo por la mezela del jugo de naranja con la leche.
Tres medicos y tres quimicos es imposible que confundan el olor del jugo de naranja que se ha vuelto acido al
mezclarse con la leche, con el olor fuerte del acido acetico concentrado.
"Habiendo llegado a esta conclusion de que la muerte del nio Emilio Esmeralda, Jr., se debio a
envenenamiento por acido acetico, la otra cuestion que el Juzgado tiene que resolver es: quien le administro esta
sustancia.
"Desde este punto las pruebas son todas circunstanciales unicamente.
"Es un hecho probado que dias antes de este suceso, al volver el Sr. Emilio Esmeralda a su casa, procedente de
la fabrica de la Central La Carlota, a eso de la madrugada, noto cierto bulto que se movia en los bajos de su
cama en el cuarto-habitacion de el y de su seora cuando esta pasaba algunos dias en La Carlota. Temiendo que
algun ladron se habia introducido debajo de la cama, cogio su revolver y amenazo con dispararle un tiro al que
estaba alli metido si no salia. Efectivamente de alli salio un hombre y, todo temblando, le dijo al Sr. Esmeralda
que el no era un ladron, sino que estaba alli porque habia sido llamado por la acusada con quien estaba en
relaciones amorosas. El Sr. Esmeralda entonces le recrimino por su acto y le dejo marchar, conminandole que
no volviera a repetir el acto. Cuando la Sra. Flora Gonzalez llego a La Carlota algunos dias despues, o sea en el
dia de autos, el Sr. Esmeralda, despues del desayuno y estando entonces ausente la acusada por haber ido al
mercado, le conto a su seora lo que habia sucedido en uno de los dias pasados, o sea, el haber sorprendido a un
hombre en su propio cuarto y debajo de su misma cama, acudiendo a una cita que tuvo con la acusada. La Sra.
de Esmeralda, dada su educacion y por ser mujer al fin, se sintio muy ofendida e indignada por el acto de su
criada y, muy nerviosa, espero la vuelta de la acusada, y cuando esta llego, la Sra. Esmeralda la busco en la
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cocina, la empezo a insultar de pies a cabeza, recriminandola por su acto inmoral y por haberse permitido
ocultar a su amante en el propio cuarto de sus amos, y despues de regaar a la acusada, se volvio a su cuarto, y
pareciendole poco la recriminacion que acababa de hacer a la acusada, otra vez la Sra. de Esmeralda volvio a la
cocina a reprenderla de nuevo, y como no se calmaban los nervios de la Sra. de Esmeralda en estas dos
ocasiones, a medida que volvia a la cocina, emprendia nuevos insultos a la acusada, en terminos que cuando la
Sra. de Esmeralda puso a dormir a su hijo en la cama, cuando encontro algo sucias las fundas de la almohada,
otra vez se fue a la cocina y volvio a amonestar a la acusada recriminandola y diciendola que solamente sabia
tener amantes y no sabia cumplir sus deberes como criada. Apenas dos horas escasas de ocurrir estos insultos,
ocurrio el suceso que dio lugar a la muerte del nio Emilio Esmeralda, Jr.
"Procediendo por eliminacion, el Ministerio Fiscal ha tratado de probar al Juzgado, y asi alega en su informe,
que en el momento de ocurrir el incidente del envenenamiento del nio, solamente estaban en aquel dia
viviendo en la casa donde ocurrio el suceso, diez personas, a saber: los esposos Esmeralda, sus dos hijas, Lilia y
Elsa, el nio Emilio Esmeralda, Jr., Julian Gomeri, Jose Colmenares, Catalino Ramos, una criada de unos 12
aos de edad, llamada Magdalena Soriano, y la aqui acusada. El Ministerio Fiscal dice que no pueden ser
autores del envenenamiento, ni el Sr. Esmeralda, ni su esposa. El Juzgado, desde luego, esta conforme con esta
eliminacion. No es posible que estos sean los autores de tal envenenamiento; ademas de ser padres, la actitud de
la madre, enloquecida de dolor por la muerte de su hijo, aleja toda duda. Seria absurda la mas remota suposicion
de que estas personas fuesen los autores de tal envenenamiento. No podia ser Elsa Esmeralda porque esta,
aparte de sus pocos aos, estaba durmiendo con su hermanito en la misma cama donde ocurrio el incidente. No
podia ser Lilia, ni la criada Magdalena Soriano, porque ambas estaban entonces en el retrete, segun las pruebas;
ademas que no podia caber la suposicion de que, o Magdalena Soriano, o Lilia hayan administrado
equivocadamente acido acetico al nio dormido, por cuanto que la botella que lo contenia estaba en la cocina,
segun la acusada misma, cerca del cantaro de agua donde ella habia puesto, y la acusada, segun ella misma,
estaba toda la tarde en la cocina fregando platos, de tal manera que si Magdalena Soriano o Lilia hubiesen
querido alcanzar la botella de acido acetico, la acusada los hubiera visto. Julian Gomeri estaba dormido en su
cuarto; era un compaero del Sr. Esmeralda en el trabajo, amigo intimo de la familia y no ha tenido ningun
disgusto con ningun miembro de ella y no hay motivo alguno para atribuir que el haya puesto en la boca del
nio acido acetico. Jose Colmenares estaba en la fabrica de la Central, que dista medio kilometro de la casa
ocupada por los Sres. de Esmeralda, ocupado en sus trabajos como empleado de dicha Central. Catalino Ramos
estaba ausente entonces en la localidad, pues se encontraba en el pueblo de Talisay. Eliminadas estas personas,
solamente queda la acusada como posible autora del acto de administrar acido acetico al nio Emilio
Esmeralda, Jr.
resentimiento hacia ningun miembro de la familia del occiso mas que la acusada. Ella misma ha admitido
durante su testimonio que en aquel dia ella habia sido reprendida por su ama. Cuando el nio Emilio Esmeralda,
Jr., dio un grito agudo que hizo despertar a su madre, Julian Gomeri, que estaba dormido en el otro cuarto, pudo
abrir los ojos y vio a la acusada saliendo de la puerta de la sala y dirigiendose hacia la cocina. Por esta sala
habia que pasar al salir del cuarto donde estaba dormido el nio, para ir a la cocina; y la distancia de la puerta de
esta sala al sitio donde estaba durmiendo el nio habia apenas 4 o 5 metros. La acusada no ha podido desmentir
esta declaracion de Julian Gomeri, ni ha podido dar explicacion alguna por que en aquel preciso momento ella
salia de la sala para ir a la cocina. Es posible que despues de haberse puesto el acido acetico en la boca del nio,
este no haya podido gritar inmediatamente, sino algunos segundos despues al sentir los efectos del acido, de tal
manera que la acusada tuvo tiempo para abandonar el sitio y volver a la cocina y estando en la sala, el nio dio
el primer grito que le hizo abrir los ojos a Julian Gomeri. Este hecho es otra prueba circunstancial bastante
fuerte, a juicio del Juzgado, contra la acusada. Cuando la madre del nio estaba currando a este, ordeno a la
acusada y a Magdalena Soriano a que hirvieran agua en la cocina, y mientras estas dos criadas cumplian la
orden, la acusada, sin motivo alguno plausible, le puso las manos debajo de las narices de Magdalena Soriano y
le dijo: 'Mis manos estan oliendo acido acetico porque se ha derramado algo alli cuando hice vinagre esta
maana con acido acetico.' Esta explicacion no pedida hecha por la acusada no parece indicar otra cosa mas que
algun temor que abrigaba por si alguien pudiese oler acido acetico en sus manos. Otra prueba circunstancial
contra la acusada es el hecho de que en la casa ella era la unica que tenia bajo su custodia esta botella Exhibit A
que contenia acido acetico. Magdalena Soriano no sabia siquiera donde estaba puesta esta botella. Cuando la
Sra. de Esmeralda busco esta botella, cuyo recuerdo le trajo a la memoria al oler el acido acetico en la boca de
su hijo, la acusada fue quien saco la botella de la cocina y le entrego a la Sra. de Esmeralda, diciendola, poco
mas o menos, estas palabras: 'Seora, aqui esta botella; no ha salido de la cocina.'
"La acusada, al declarar en la silla testifical como testigo a su favor, al ser preguntada por el Juzgado si ha olido
acido acetico al entrar en el cuarto, se inmuto algun tanto; pero inmediatamente se repuso y nego rotundamente
haber olido acido acetico. El Juzgado le dirigio varias veces esta pregunta, y la acusada insistio en su negativa.
El Juzgado le pregunto si conocia el acido acetico y el olor del mismo, y afirmo que si y volvio a afirmar que no
habia percibido tal olor en el cuarto al entrar y durante todo el tiempo que habia permanecido alli. Ahora bien,
tres medicos imparciales, dos quimicos y una farmaceutica, aparte de Magdalena Soriano, han olido el
inconfundibel olor de acido acetico en el cuarto. La unica que no ha podido oler dicha sustancia es la acusada.
En la comision de un crimen, el unico que tiene interes en negar la existencia de un cuerpo del delito es casi
siempre, o sin casi, el autor del mismo. Y esta actitud de la acusada de negar una cosa tan evidente y sobre la
cual el Juzgado no tiene duda alguna, corrobora, a juicio del Juzgado, todas las pruebas circunstanciales que se
han presentado por la acusacion.
"Desde luego, la prueba de que la acusada, pocas horas antes del suceso, era la unica de la casa que habia
recibido insultos de la madre del nio, es una prueba circunstancial contra ella. Ninguno tenia motivos de
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"La defensa hace enfasis en el hecho de que la acusada, lejos de escaparse, entro en el cuarto para ayudar a la
madre del nio para salvar a este, y tanto es asi que la misma acusada, segun Julian Gomeri, tan pronto como la
Sra. de Esmeralda pidio algodon, fue la que saco de las manos de Julian Gomeri el algodon y lo entrego a la
Sra. de Esmeralda. Este hecho no es, a juicio del Juzgado, suficiente para demostrar la inocencia de la acusada.
Cuantas veces ha sucedido que el que ha realizado un acto criminal, se arrepiente de su crimen y trata de
remediarlo! El que acaba de herir a un hombre, despues de pasado el primer momento de obcecacion, si el
pudiera curarlo, indudablemente no se encontraria mejor medico para el herido. Tambien puede suceder que la
acusada, habiendo querido causar daos unicamente a la criatura, haya querido usar de toda su habilidad para
que los efectos del dao no fuesen tan grandes. La actitud de la acusada, por tanto, es perfectamente explicable
y no incompatible con su culpabilidad. Otra actitud de la acusada que parece tener bastante peso es su actitud
cuando ella volvio por la tarde del dia siguiente del suceso a la estacion de policia cuando el Jefe de Policia le
dijo que volviera en aquella tarde. Y el abogado de la acusada tiene razon para hacer enfasis sobre esta
circunstancia. La acusada ha sido arrestada casi a media noche del mismo dia del suceso. Fue puesta en libertad
a las 11 de la maana del dia siguiente, en vista de que no llegaba orden de arresto contra ella; pero el Jefe de
Policia le dijo que volviera a las 3 en punto de la tarde, y a las 3 de aquella tarde la acusada volvio al edificio
municipal. El abogado de la acusada arguye que una conciencia criminal no procederia como ha procedido la
acusada; ella se hubiera escapado. El Juzgado ha considerado detenidamente este aspecto de la cuestion; ha
meditado largamente sobre este acto de la acusada; pero la conclusion del Juzgado es que si la acusada volvio
en la tarde de aquel dia al edificio municipal, era porque la acusada no sabia que el nio Emilio Esmeralda, Jr.,
habia muerta. Ademas, ella debia saber que, mujer que era, no podia ir a ninguna parte sin que le alcanzaran las
autoridades correspondientes y, por tanto, era mejor para ella presentarse ante las autoridades aparentando tener
una conciencia tranquila y preparando en esa forma su futura defensa. El Juzgado cree que desde el momento en
que la acusada mostro solicitud suma para salvar la vida del nio que ella habia segado en momentos de colera,
la acusada ya habia concebido su plan de defensa.
"Se dira tal vez que no es usual que, habiendo la madre del nio ofendido a la acusada, esta, en lugar de tomar
venganza de la madre, que muchas oportunidades hubiera ella tenido porque, segun ha tratado de resaltar el
abogado de la defensa, la acusada dormia en el mismo cuarto de los esposos Esmeralda y preparaba la comida
de estos, haya dirigido su accion vergadora a una inocente criatura, maxime teniendo en consideracion que la
acusada es una mujer y las mujeres, por regla general, son mas caritativas que los hombres. En primer lugar, ya
sea un hombre, ya sea una mujer, cuando estan obcecados por el odio y la venganza, ya no consideran las
circunstancias y procuran dirigir su venganza al que les ha ofendido alli mismo donde es mas facil ejecutar. En
este caso, el nio Emilio Esmeralda, Jr., era el que dormia mas cerca a la puerta entrando inmediatamente,
procedente de la cocina, y era el que, por su tierna edad, podia sentir inmediatamente los efectos del acido
acetico, pudiendo asi ejecutar su venganza con mayor seguridad de su parte. Causando dao al nio, que, por
ser el unico varon de la familia, era el mas querido por los Sres. de Esmeralda, se causaba mayor dao a la Sra.
de Esmeralda. El Juzgado, desde luego, acepta la teoria de que la mujer es mucho mas caritativa que el hombre
y mucho mas debil del consenso comun; pero precisamente por ser mas caritativa, por ser mas debil, cuando la
mujer se vuelve mala y quiere vengarse, su venganza busca al mas debil tambien y sobre este hace recaer esa
venganza, y la experiencia diaria nos ensea, que los seres mas debiles, sean hombres o mujeres, cuando se
vuelven malos, son peores enemigos; y no es nada extrao, por tanto, que la acusada, temiendo atacar al Sr.
Esmeralda y a la Sra. de Esmeralda, porque contra ellos no tenia asegurada la ejecucion de su venganza, ha
escogido como victima a una criatura indefensa de 9 meses de edad.
"Por las consideraciones expuestas, el Juzgado encuentra probado fuera de toda duda racional que Emilio
Esmeralda, Jr., de 9 meses de edad, fallecio el dia 8 de febrero de 1932, a consecuencia de envenenamiento por
acido acetico concentrado, y que la acusada, aprovechando la ocasion en que sus amos estaban durmiendo,
administro una pequea cantidad de esta sustancia a dicho nio, quemandole de este modo la boca y la garganta,
a consecuencia de lo cual dicho nio fallecio.
"Se declara, por tanto, a la acusada Magdalena Caliso culpable del delito de asesinato, y estimando en la
comision del delito la concurrencia de la circunstancia agravante de alevosia, porque se trata de un ser
indefenso, y de la circunstancia de haberse realizado el acto en la propia morada de los padres de la victima,
cuyas circunstancias estan compensadas con las circunstancias atenuantes de falta de instruccion y de haber
obrado la acusada a impulsos de un sentimiento que la hayan producido arrebato y obcecacion, le condena a la
pena de reclusion perpetua, a indemnizar a los padres del occiso en la suma de P1,000, con las accesorias de ley,
y a pagar las costas del juicio. Asi se ordena."
We agree to the conclusions of fact reached by the trial court. As to the application of the law to the facts of the
case, we are inclined to the proposition advanced by the Attorney-General that in the commission of the crime
the aggravating circumstance of grave abuse of confidence was present since the appellant was the domestic
servant of the family and was sometimes the deceased child's amah. The circumstance of the crime having been
committed in the dwelling of the offended party, considered by the lower court as another aggravating
circumstance, should be disregarded as both the victim and the appellant were living in the same house. (U.S.
vs. Rodriguez, 9 Phil., 136; U.S. vs. Destrito and De Ocampo, 23 Phil., 28) Likewise, threachery cannot be
considered to aggravate the penalty as it is inherent in the offense of murder by means of poisoning (3 Viada, p.
29). Similarly the finding of the trial court that the appellant acted under an impulse so powerful as naturally to
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have produced passion and obfuscation should be discarded because the accused, in poisoning the child, was
actuated more by a spirit of lawlessness and revenge than by any sudden impulse of natural and uncontrollable
fury (People vs. Hernandez, 43 Phil., 104, 111) and because such sudden burst of passion was not provoked by
prior unjust or improper acts of the victim or of his parents (U.S. vs. Taylor, 6 Phil., 162), since Flora Gonzalez
had the perfect right to reprimand the defendant for indecently converting the family's bedroom into a
rendezvous of herself and her lover.
The aggravating circumstances of abuse of confidence being offset by the extenuating circumstance of
defendants lack of instruction considered by the lower court, the medium degree of the prescribed penalty
should, therefore, be imposed, which, in this case, is reclusion perpetua.
The penalty imposed by the lower court upon the appellant being thus within the limits fixed by law, the
judgment appealed from is affirmed with costs. So ordered.
SYNOPSIS
The defendant Belinda Lora, a housemaid in the house of the spouses Ricardo and Myrna Yap, whose main duty
is to look after Oliver, the three year old son of the spouses Yap, disappeared with the boy, leaving a ransom
note which was found at the stairway. The incident was immediately reported to the police. In the evening the
Yaps received two phone calls from the accused asking for an amount of P3,000.00 in exchange for their son.
The money marked with the initials "MY" was delivered but the Yaps failed to get their son. The accused after
another demand for ransom was arrested on her way to Surigao with the marked money in her possession. The
body of Oliver was finally found in the ceiling of the Yaps' residence placed inside the carton of Marlboro
Cigarette gagged with head down and legs protruding upwards. already dead. The victim died of "asphyxhia due
to suffocation." The accused was charged of Serious Illegal Detention with Murder in an amended information
in the Court of First Instance of Davao, where the accused pleaded guilty, and the evidence was presented only
to prove the alleged mitigating circumstances. The trial court convicted the defendant with Complex Crime of
Serious Illegal Detention with Murder and imposed the penalty of death.
Street, Malcolm, Hull and Imperial, JJ., concur.

||| (People v. Caliso, G.R. No. 37271, [July 1, 1933], 58 PHIL 283-295)
On review, the Supreme Court held that the guilt of the defendant is so patent that there is no need to discuss
further the evidence, but ruled that the crime actually committed is not the complex crime of kidnapping with
murder but the simple crime of murder qualified by treachery, as shown by the instant death of the child and the
use of methods to commit murder and not to restrain liberty. The demand for ransom being only a part of the
diabolic scheme did not convert the crime to kidnapping.
Judgment affirmed with modification.

EN BANC
SYLLABUS
[G.R. No. L-49430. March 30, 1982.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BELINDA LORA Y VEQUIZO alias LORENA
SUMILEW, accused-appellant.
1. REMEDIAL LAW; EVIDENCE; PLEA OF GUILTY WITH UNDISPUTED EVIDENCE; PROOF OF

GUILT ESTABLISHED BEYOND REASONABLE DOUBT. The guilt of the defendant is so patent that
there is no further need to discuss the evidence, the only task remaining after the plea of guilty and the
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presentation of the undisputed evidence for the prosecution is to determine the crime committed, the penalty to
be imposed and the aggravating and mitigating circumstances to be appreciated.
7. ID.; ID.; ID.; AGGRAVATING CIRCUMSTANCES; LACK OF RESPECT DUE TO AGE; CASE AT BAR.
The circumstance of lack of respect due to age applies in cases where one of the victims in a murder case
was a 12-year old boy (US vs. Butag, 38 Phil. 746). In the instant case, the victim was only a 3-year old.
2. CRIMINAL LAW; CRIMES Against LIBERTY; KIDNAPPING OR SERIOUS ILLEGAL DETENTION;

ESSENCE. Kidnapping is a crime against liberty defined in Article 267, Title IX, Book II of the Revised
Penal Code. The essence of kidnapping or serious illegal detention is the actual confinement or restraint of the
victim or the deprivation of his liberty.
8. ID.; ID.; ID.; ID.; CRUELTY. The gagging of the mouth of a three year old child with stockings, dumping
him with head downwards into a box, and covering the box with sacks and other boxes, thereby causing slow
suffocation, is cruelty.
3. ID.; ID.; KIDNAPPING WITH MURDER AND KIDNAPPING WITH FRUSTRATED MURDER
DISTINGUISHED FROM MURDER AND FRUSTRATED MURDER. "Where there is no showing that the
accused intended to deprive their victims of their liberty for some time and for some purpose, and there being
no appreciable interval between their being taken and their being shot from which kidnapping may be inferred,
the crimes committed were murder and frustrated murder and not the complex crimes of kidnapping with
murder and kidnapping with frustrated murder." (PP. vs. Sacayanan, 110 Phil. 588)
9. ID.; ID.; ID.; ID.; ABUSE OF CONFIDENCE. There was also abuse of confidence because the victim
was entrusted to the care of the appellant whose main duty in the household is to take care of the minor child.
There existed a relation of trust and confidence between the appellant and the one against whom the crime is
committed and the appellant made use of such relation to commit the crime. "When the killer of the child is the
domestic servant of the family and was sometimes the deceased child's amah, the aggravating circumstance of
grave abuse of confidence is present." (PP vs. Caliso 58 Phil. 283)
4. ID.; ID.; KIDNAPPING WITH MURDER; DISTINGUISHED FROM SIMPLE MURDER WITH
TREACHERY; CASE AT BAR. In the instant case, the gagging of the child with stockings, placing him ma
box with head down and legs upward and covering the box with some sacks and other boxes were only the
methods of the defendant to commit murder. The child died instantly of suffocation and the crime actually
committed is not the complex crime of kidnapping with murder, as found by the trial court, but the simple crime
of murder qualified by treachery.
10. ID.; ID.; ID.; MITIGATING CIRCUMSTANCE; PLEA OF GUILTY. Where upon motion of the counsel
for the accused, the arraignment was postponed to enable him to study the charge against the accused and
thereafter, after being arraigned, the accused, in the presence and the assistance of her counsel, entered a plea of
guilty in Visayan dialect, which is her native dialect, the only mitigating circumstance that may be appreciated
in favor of the defendant is her voluntary plea of guilty.
5. ID.; CRIMES AGAINST PERSONS; MURDER WITH TREACHERY; WHEN DEMAND FOR RANSOM
DOES NOT CONVERT THE OFFENSE INTO KIDNAPPING WITH MURDER. The demand for ransom
did not convert the offense into kidnapping with murder where it is only a part of the diabolic scheme of the
defendant to murder the child, to conceal his body and then demand money before the discovery of the cadaver.
6. ID.; ID.; MURDER; QUALIFYING CIRCUMSTANCE; TREACHERY. These is treachery where the
victim is only a 3-year old child.
11. ID.; ID.; ID.; ID.; WHEN NO INTENTION TO KILL LACKS MERITS; CASE AT BAR. Defendant's
contention that she had no intention to kill the child lacks merit where she was well aware that her act of
gagging the mouth of the child with stockings, placing him with head down and feet up in a box and covering
the box with sacks and other boxes would result to the instant suffocation of the child.
12. ID.; ID.; ID.; PENALTY; THREE AGGRAVATING CIRCUMSTANCES CANNOT BE OFFSET BY ONE
MITIGATING CIRCUMSTANCE; DEATH PENALTY PROPERLY IMPOSED. There being three
aggravating circumstances, namely, lack of respect due to the tender age of the victim, cruelty, and abuse of
confidence and only one mitigating circumstance in favor of the defendant, she deserves the death penalty
imposed upon her by the lower court.
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DECISION
According to the trial judge, "he has appointed as counsel de oficio Atty. Hildegardo Iigo, a bar topnotcher
with considerable practice," in view of the gravity of the offense.
PER CURIAM, p:
The defendant Belinda Lora y Vequizo alias Lorena Sumilew was accused in the Court of First Instance of
Davao of serious illegal detention with murder in an amended information which reads as follows:
The undersigned accuses the above-named accused of the crime of Serious Illegal Detention with Murder under
Art. 267 in relation to Articles 248 and 48 of the Revised Penal Code, committed as follows:
That on or about May 28, 975, in the City of Davao, Philippines, and within the jurisdiction of this Honorable
Court, the above-mentioned accused, being then a private person, wilfully, unlawfully and feloniously and for
the purpose of extorting ransom from spouses Ricardo Yap and Myrna Yap, illegally detained their three (3)
year old child Oliver Yap, a minor, from May 28 to 29, 1975 and with treachery, evident premeditation and with
intent to kill, wilfully, unlawfully and feloniously attacked, assaulted Oliver Yap by tying his mouth with
stocking, placing him inside a Pallmall cigarette box, covering the said box with a mat and piece of sack and
filing the same with other boxes in the third floor (bodega) of the house owned by said spouses Ricardo Yap and
Myrna Yap, thereby inflicting upon said Oliver Yap the following to wit: "Asphyxia due to suffocation" which
caused the death of said Oliver Yap.
Upon motion of the counsel for the accused, the arraignment was postponed to enable him to study the charge
against the accused. Thereafter, after being arraigned, the accused Belinda Lora, in the presence and with the
assistance of her counsel, entered a plea of guilty in Visayan dialect, which is her native dialect.
The Court thereafter directed the prosecution to present its evidence and the counsel for the accused manifested
that the evidence of the defense would be presented only for proving mitigating circumstances.
Eight witnesses for the prosecution, namely: Myrna Yap, David Cortez, Fidencio Bisnar, Ricardo Yap, Agaton
Bonahos, Emmanuel Mesias, Rolando Estillori and Juan Abear, Jr. were presented.
The facts are undisputed.
On May 26, 1975, accused Belinda Lora, using the name "Lorena Sumilew," applied as a housemaid in the
household of the spouses Ricardo Yap and Myrna Yap at 373 Ramon Magsaysay Avenue, Davao City. The
spouses had a store on the ground floor; a mezzanine floor was used as their residence; while the third floor was
used as a bodega for their stocks. They had two children, Emily and Oliver Yap. Oliver was 3 years and five
months old. 1
That the commission of the foregoing offense was attended by the following aggravating circumstances: (1)
taking advantage of superior strength; (2) disregard of the respect due the offended party on account of his age;
(3) that the crime was committed in the dwelling of the offended party; (4) that the crime was committed with
abuse of confidence, she being a domestic helper (maid) or obvious ungratefulness; (5) that craft, fraud and
disguise was employed; and (6) that the crime was committed with cruelty, by deliberately and inhumanly
augmenting the suffering of the victim.
Belinda Lora was accepted as a housemaid in the residence of the Yaps and reported for work the following day,
May 27, 1975. Her duties were to wash clothes and to look after Oliver Yap. 2
Contrary to law.
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On May 28, 1975, Mrs. Myrna Yap returned home from the market to find her mother-in-law and her husband
panicky because their son, Oliver, and the maid, accused Belinda Lora, were missing. The mother-in-law had
found a ransom note at the stairway to the mezzanine floor. The note said that Oliver was to be sold to a couple
and that the writer (defendant therein) needed money for her mother's hospitalization. 3 Four pieces of residence
certificates were also found inside the paper bag of the maid. One residence certificate bore the No. 1941785
with the name "Sumiliw, Lorena Pamintil." 4
The incident was reported immediately to the police. Mrs. Yap, accompanied by one Mrs. Erlinda Velez, went to
look for Oliver and the housemaid. Not finding them in Davao City, they went to Digos and Bansalan (Davao)
and looked in the hospitals there. The residence certificate in the name of Lorena Sumilew was issued in Digos
and the ransom letter stated that the mother of the defendant was very sick. 5
In the evening of May 28, 1975, the Yaps received two telephone calls at their residence. The first call was
received by Mrs. Yap's mother-in-law while the second call was received by Ricardo Yap. Lorena Sumilew
(defendant), the caller, instructed Ricardo Yap to bring the amount of P3,000.00 to the island infront of the
(Davao) Regional Hospital and to go there alone without any policeman or companion, after which his son
(Oliver) would be left to the security guard of the hospital at the emergency exit. 6
The following morning, May 29, 1975, Mrs. Yap received a phone call from the accused informing her that her
son was at the Minrapco Terminal and that she was asking for another P3,000.00. Mrs. Yap proceeded to the
terminal whereupon she learned that the terminal had moved to a place near a theatre. When Myrna Yap arrived
at the place, she saw the accused board a Minica bus. She followed and grabbed the accused. 10 As the accused
said that Mrs. Yap's son was brought to the Regional Hospital, they proceeded there. Upon arriving there, a
couple, Mr. and Mrs. Bonahos, said that the Yap son was in Panacan. Mrs. Yap and the accused went to
Panacan. After arriving at Panacan, the accused told Mrs. Yap that her son was in the custody of a woman whom
she paid P100.00 and that the woman would return her son at 6:00 o'clock P.M. that day. Mrs. Yap therefore,
made the accused sign a promissory note that she would return Oliver on the same day. 11 After the accused
boarded a bus for Surigao, Mrs. Yap listed down the bus number and the seat number and reported to Lt. Mesias
of the Davao City Police Force that the "kidnapper" was on board the Surigao bus. 12
Lt. Mesias stopped the bus and placed the accused under arrest. From the body of the accused was taken an
improvised pouch containing 36 pieces of P50.00 bills and 24 pieces of P20.00 bills. The money had initials
reading "MY" below the serial numbers. 13
The following morning, May 30, 1975, upon waking up at around 6 o'clock in his house, Ricardo Yap noticed
that blood was dripping from the ceiling. He went upstairs, which was being utilized as a bodega, to verify, and
found his son placed inside the carton of Marlboro cigarettes. The head of the child was inside the carton while
his feet protruded outside. 14 His mouth was tied with stockings. 15 The child was already dead. 16 He had
died of "asphyxia due to suffocation." 17
The Yaps borrowed the amount of P3,000.00. Upon instructions of the NBI, the money was marked with Mrs.
Yap's initials "MY". 7
The defendant presented evidence only for the purpose of proving alleged mitigating circumstances. She claims
that she did not intend to kill the child. 18
Ricardo Yap wrapped the P3,000.00 in a piece of paper and went to the Regional Hospital at 9:30 in the evening
of May 28, 1975. He placed the money near the Imelda Playground. He proceeded to the hospital and looked for
his child from the security guard. However, the security guard said nobody left a boy with him. 8 Ricardo Yap
stayed at a corner looking and calling for his child but could not locate him. After ten minutes, he went back to
where he had placed the money but the money was not there anymore. He waited until 11:00 o'clock, after
which he went home. 9
To support her plea for mercy, she stated that she had three children aged from one to five years whom she left
in Pagadian. 19 On objection to the materiality of the evidence, the appellant's counsel pleaded that she be
allowed to prove those facts for "humanitarian consideration" which might enable the Supreme Court to review
the penalty with compassion. 20
The defendant capped her testimony with the following plea:
165
"A I would request the Honorable Court that LIFE IMPRISONMENT will be the penalty imposed upon me
because I really committed the crime. I did not really intend to kill the child.
Q Would you like to make any further appeal?
A I really repent to what I have done, sir." 21
On cross-examination, the defendant admitted that she gagged the child's mouth with stockings; placed the child
inside the box with head down and legs up; that she covered the box with some sacks and boxes and left the
child in that condition inside the store room of the house of Ricardo Yap. 22
When the defendant left the store room, the voice of the child, who was previously shouting, "was already slow
and to make sure that his voice would not be heard I closed the door." 23
On the basis of the plea of guilt of the defendant and the evidence of the prosecution, the court convicted the
defendant with complex crime of serious illegal detention with murder and imposed, among others, the extreme
penalty of death. LLjur
Hence, this automatic review.
The guilt of the defendant is so patent that there is no further need to discuss the evidence. The only task
remaining after the plea of guilty and the presentation of the undisputed evidence for the prosecution is to
determine the crime committed, the penalty to be imposed and the aggravating and mitigating circumstances to
be appreciated.
The crime actually committed is not the complex crime of kidnapping with murder, as found by the trial court,
but the simple crime of murder qualified by treachery.
Kidnapping is a crime against liberty defined in Article 267, Title IX, Book II of the Revised Penal Code. The
essence of kidnapping or serious illegal detention is the actual confinement or restraint of the victim or the
deprivation of his liberty. 24
"Where there is no showing that the accused intended to deprive their victims of their liberty for some time and
for some purpose, and there being no appreciable interval between their being taken and their being shot from
which kidnapping may be inferred, the crimes committed were murder and frustrated murder and not the
complex crimes of kidnapping with murder and kidnapping with frustrated murder." 25
In the instant case, the gagging of the child with stockings, placing him in a box with head down and legs
upward and covering the box with some sacks and other boxes were only the methods of the defendant to
commit murder. The child instantly died of suffocation. This is evident from the testimony of Dr. Juan Abear, Jr.
who performed the autopsy on May 30, 1975 at 8 o'clock in the morning. When Dr. Abear conducted the
autopsy, the body of the child was already in a state of decomposition. Dr. Abear opined that the child must
have died three days before the autopsy. 26 In other words, the child died practically on the very day that the
child was stuffed into the box on May 28, 1975.
The demand for ransom did not convert the offense into kidnapping with murder. The defendant was well aware
that the child would be suffocated to death in a few moments after she left. The demand for ransom is only a
part of the diabolic scheme of the defendant to murder the child, to conceal his body and then demand money
before the discovery of the cadaver.
There is treachery because the victim is only a 3-year old child. 27 The commission of the offense was attended
with the aggravating circumstances of lack of respect due to the age of the victim, cruelty and abuse of
confidence.
166
The circumstance of lack of respect due to age applies in cases where the victim is of tender age as well as of
old age. This circumstance was applied in a case where one of the victims in a murder case was a 12-year-old
boy. 28 In the instant case, the victim was only 3 years old.
The gagging of the mouth of a three-year-old child with stockings, dumping him with head downwards into a
box, and covering the box with sacks and other boxes, thereby causing slow suffocation, is cruelty.
There was also abuse of confidence because the victim was entrusted to the care of the appellant. The
appellant's main duty in the household is to take care of the minor child. There existed a relation of trust and
confidence between the appellant and the one against whom the crime was committed and the appellant made
use of such relation to commit the crime.
of confidence and only one mitigating circumstance in favor of the defendant, she deserves the death penalty
imposed upon her by the lower court. LLpr
WHEREFORE, the defendant is guilty beyond reasonable doubt of the crime of murder qualified with treachery
and appreciating the aggravating circumstances already indicated above, We hereby impose the penalty of death
with costs de oficio.
With this modification, the rest of the decision is hereby affirmed.

Barredo, Makasiar, Concepcion Jr., Fernandez, Guerrero, Abad Santos, De Castro, Melencio-Herrera, Ericta,
Plana and Escolin, JJ., concur.
Fernando, C.J., took no part.
When the killer of the child is the domestic servant of the family and was sometimes the deceased child's amah,
the aggravating circumstance of grave abuse of confidence is present. 29
On the other hand, the defendant invokes the following as mitigating circumstances, namely: (1) she pleaded
guilty; (2) she did not intend to commit so grave a wrong; (3) she was overcome by fear that her mother will die
unless she is able to raise money for her mother's hospitalization, thus, she committed kidnapping for ransom;
(4) the appellant should live so that her children who are of tender years would not be deprived of a mother; and
(5) we have a compassionate society. 30
Teehankee, J., concurs in the result.

||| (People v. Lora y Vequizo, G.R. No. L-49430, [March 30, 1982], 198 PHIL 749-760)
EN BANC
[G.R. No. L-63243. February 27, 1987.]
The only mitigating circumstance that may be appreciated in favor of the defendant is her voluntary plea of
guilty. Her contention that she had no intention to kill the child lacks merit. The defendant was well aware that
her act of gagging the mouth of the child with stockings, placing him with head down and feet up in a box and
covering the box with sacks and other boxes would result to the instant suffocation of the child. There being
three aggravating circumstances, namely, lack of respect due to the tender age of the victim, cruelty and abuse
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSALIO LAGUARDIA, DANTE

BARTULAY, BALTAZAR BERAN, and RAYMUNDO BARTULAY, accused-appellants.
SYLLABUS
167
1. CRIMINAL LAW; ROBBERY WITH HOMICIDE; WHERE CONSPIRACY TO COMMIT ROBBERY

WAS SHOWN AND HOMICIDE WAS COMMITTED AS A CONSEQUENCE OF OR ON OCCASION OF
ROBBERY, ALL THE ACCUSED ARE EQUALLY LIABLE. The Solicitor General correctly points out, the
offense, while not covered by Article 296 of the Revised Penal Code, still comes under Article 294(1) which
may also impose the death penalty "when by reason or on occasion of the robbery, the crime of homicide shall
have been committed" even if cuadrilla is not present. Under this provision, it is enough to show conspiracy
among the participants in the crime of robbery to render each and every one of them liable for any homicide that
may be committed by reason or on the occasion of such robbery. And in the instant case, evidence of such
conspiracy is not lacking. Indeed, it is not disputed that Bartulay and Beran together went to the scene of the
crime and lay in wait for Chua's truck; that they together pretended to borrow a screwdriver from the victim;
that while Bartulay pointed a gun at Chua and his companions, Beran divested them of their cash and watches;
that Beran got the bag containing P100,000.00 on orders of Bartulay; that also on the latter's orders, Beran
locked up Chua's three companions in the panel; that Beran drove the stolen truck away from the scene of the
crime while Bartulay followed in the motorcycle; and that Beran later got P4,500.00 as his share of the stolen
money.
2. ID.; ID.; ID. Confronted with the established fact of conspiracy to commit the robbery, the accusedappellant cannot plead that he should not be held responsible for the murder on the ground that he did not
conspire to commit it or that he had no opportunity to prevent its commission. "The rule is that where the
conspiracy to commit robbery was conclusively shown by the concurrent and coordinate acts of the accused,
and homicide was committed as a consequence or on the occasion of the robbery, all the accused are guilty of
robo con homicidio whether or not they actually participated in the killing."
3. ID.; CONSPIRACY; NEED NOT BE ESTABLISHED BY DIRECT EVIDENCE OF ACTS CHARGED.

A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony
and decide to commit it, whether they act through the physical volition of one or all, proceeding severally or
collectively. It is also a settled rule that conspiracies need not be established by direct evidence of acts charged
but may and generally must be proved by a number of indefinite acts, conditions, and circumstances which vary
according to the purpose accomplished. The very existence of a conspiracy is generally a matter of inference
deduced of an apparent criminal or unlawful purpose in common between them. The existence of the
agreement, or joint assent of the minds, needs not be proven directly.
4. ID.; AGGRAVATING CIRCUMSTANCE; DESPOBLADO; MANIFEST IN CASE AT BAR. It is clear

that, as alleged in the amended information, the crime committed by Beran was aggravated by despoblado and
justified the imposition on him of the death penalty as prescribed by Article 294 of the Revised Penal Code. The
evidence shows that the accused lay in wait for the truck being driven by Chua at an isolated portion of
Highway 36, choosing that particular spot where they could commit the crime they were planning without
disturbance or discovery and with easy opportunity for escape.
5. ID.; ID.; USE OF MOTOR VEHICLE; APPRECIATED WHEN USED TO FACILITATE ESCAPE. The
use of motor vehicles is also appreciation because the conspirators drove away from the scene of the crime to
facilitate their escape and also to prevent the other passengers of the truck, whom they took with them, from
reporting the offense to the authorities.
6. ID.; ID.; REJECTED WHEN NOT ESPECIALLY SOUGHT. Nighttime is rejected, however, because it
was not especially sought, as Chua's trip schedule and not the discretion of the culprits determined the time of
its commission.
7. ID.; QUALIFYING CIRCUMSTANCE; EVIDENT PREMEDITATION; INHERENT IN ROBBERY.

Evident premeditation is, of course, inherent in the crime of robbery and was not proved in the commission of
the killing.
8. ID.; ID.; TREACHERY; NOT ATTENDANT IN CASE AT BAR. As for treachery, there is no evidence of
its employment as none of the witnesses actually saw the shooting of Chua, being all inside the panel when they
heard the fatal shots.
9. CIVIL LAW; DAMAGES; INDEMNITY TO DEATH INCREASED TO P30,000. The indemnity for the
death of Chua is increased to P30,000.00.
10. ID.; ID.; UNEARNED INCOME, MORAL AND EXEMPLARY DAMAGES AWARDED HEIRS OF THE
DECEASED. As the victim was earning at the time of his death a monthly compensation of P2,500.00,
consisting of salary and commission, or P30,000.00 annually, and could have lived about 24 more years, his
168
total earnings for the period would have amounted to P720, 000.00. The heirs are also entitled to this amount
plus P10,000.00 moral damages and P10,000.00 exemplary damages.
11. CRIMINAL LAW; DEATH PENALTY REDUCED TO RECLUSION PERPETUA PURSUANT TO THE
1987 CONSTITUTION. In view of the provisions of the new Constitution, the death penalty is reduced to
reclusion perpetua.
the panel where they were locked. It was while they were still inside the panel that Beran and the others heard
two gunshots. When Beran got off the truck, he saw Chua still lying on the ground but now bleeding in the
head. Thereafter, Beran drove the truck from the scene of the crime while Bartulay followed in a motorcycle.
Somehow, Caca and Morante managed to escape by jumping from the truck through a secret exit of the panel.
They subsequently reported the occurrence to the law-enforcement authorities who, returning to the scene of the
crime the following day, found Chua already dead. 1 Beran was arrested on September 8, 1979, with the amount
of P4,500.00 in his possession and upon questioning pointed to the place where he had hidden the pistol he had
used during the hold-up. 2 Further investigation disclosed that the motorcycle and guns used by Bartulay and
Betan were owned by Rosalio Laguardia, who was identified by Beran as the mastermind of the crime. 3 The
money stolen was supposed to have been divided in the house of Raymundo Bartulay, Dante's brother. 4
DECISION
CRUZ, J p:
In this automatic review of the death sentence imposed upon the lone accused-appellant, we are asked to
determine if, while concededly guilty of robbery, he should also be held for the killing of the victim
notwithstanding that this was actually done by another person. The Solicitor General says the judgment should
be affirmed because of the proven conspiracy between the accused-appellant and the actual killer. The defense,
on the other hand, impliedly admits the conspiracy only with respect to the robbery but not as regards the
murder which it claims was not part of the original plan. prLL
The facts, as derived by the lower court from the evidence adduced at the trial, are briefly narrated as follows:
On September 6, 1979, at about 10:30 o'clock in the evening, Dante Bartulay and Baltazar Beran, the herein
accused-appellant, signaled to a stop a truck owned by Fortune Tobacco Corporation then being driven by
Miguel Chua on the zigzag road in Kilometer 36 inside the Iwahig Penal Colony at Puerto Princesa in Palawan
City. Beran approached one side of the truck and pretended to borrow a screwdriver and while Chua looked for
the tool Bartulay shouted from the other side of the truck, "This is a hold-up!" With guns drawn, the two men
ordered Chua and his three companions, Benigno Caca, Frank Morante, and Eduardo Aniar, to alight. Bartulay
forced Chua to lie face down on the ground about 3 meters away from his companions. Bartulay was pointing a
gun at Chua's head. On orders of Bartulay, Beran got the wallets and watches of the four. Bartulay asked about
the money they were carrying and Chua pointed to its location. Beran got it and gave it to Bartulay. The money
amounted to about P100,000.00. Then, again on orders of Bartulay, Beran herded the three companions inside
Dante Bartulay could not be tried at the time because he was at large. Baltazar Beran was found guilty of
robbery with homicide and sentenced to death. Rosalio Laguardia was convicted (presumably as a principal by
inducement) and sentenced to life imprisonment. Raymundo Bartulay was acquitted for insufficient evidence. 5
This case involves Baltazar Beren only as Laguardia later withdraw his appeal. cdrep
In finding Beran guilty and sentencing him to death, the trial court made the following conclusion:
". . . . It is undisputed that the crime committed by the accused was robbery with homicide, and the killing of the
victim was done with the use of a gun. The heinous act was preceded by taking of the wallets, the watches and
the money from the victim of the robbery. Whenever a homicide has been committed as a consequence, or on
the occasion, of a robbery, all those who took part as principals in the robbery will also be held guilty as
principals of the special complex crime of robbery with homicide (Pp. v. Darwin Veloso y Militante, alias
Carlito Villareal, accused-appellant, G.R. No. 32900, Feb. 25, 1982). In the case at bar, evidence is strong and
clear that Baltazar Beran did not endeavor to prevent the homicide of the killing (sic) of Mike Chua by Dante
Bartulay . . . ." 6
The accused-appellant now faults the trial court for holding inter alia that Beran should be held guilty of the
homicide committed on the occasion of the robbery notwithstanding that he was not the one who actually killed
Chua; that he should have tried to prevent the killing of Chua but did not; and that the aggravating
169
circumstances of treachery, evident premeditation, nighttime and use of a motor vehicle should not have been
appreciated against him.
The accused-appellant suggests that the case 7 cited by the lower court in convicting him is not applicable
because the crime involved therein was robbery with homicide committed by a band whereas the robbery in the
instant case was perpetrated only by two persons. The trial judge did err in this respect. Nevertheless, as the
Solicitor General correctly points out, the offense, while not covered by Article 296 of the Revised Penal Code,
still comes under Article 294(1) which may also impose the death penalty "when by reason or on occasion of
the robbery, the crime of homicide shall have been committed" even if cuadrilla is not present.
Under this provision, it is enough to show conspiracy among the participants in the crime of robbery to render
each and every one of them liable for any homicide that may be committed by reason or on the occasion of such
robbery. And in the instant case, evidence of such conspiracy is not lacking. Indeed, it is not disputed that
Bartulay and Beran together went to the scene of the crime and lay in wait for Chua's truck; that they together
pretended to borrow a screwdriver from the victim; that while Bartulay pointed a gun at Chua and his
companions, Beran divested them of their cash and watches; that Beran got the bag containing P100,000.00 on
orders of Bartulay; that also on the latter's orders, Beran locked up Chua's three companions in the panel; that
Beran drove the stolen truck away from the scene of the crime while Bartulay followed in the motorcycle; and
that Beran later got P4,500.00 as his share of the stolen money. LLjur
A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony
and decide to commit it, whether they act through the physical volition of one or all, proceeding severally or
collectively. 8 It is also a settled rule that conspiracies need not be established by direct evidence of acts charged
but may and generally must be proved by a number of indefinite acts, conditions, and circumstances which vary
according to the purpose accomplished. The very existence of a conspiracy is generally a matter of inference
deduced from certain acts of the persons accused, done in pursuance of an apparent criminal or unlawful
purpose in common between them. The existence of the agreement, or joint assent of the minds, need not be
proved directly. 9
Confronted with the established fact of conspiracy to commit the robbery, the accused-appellant cannot plead
that he should not be held responsible for the murder on the ground that he did not conspire to commit it or that
he had no opportunity to prevent its commission.
"The rule is that where the conspiracy to commit robbery was conclusively shown by the concurrent and
coordinate acts of the accused, and homicide was committed as a consequence or on the occasion of the
robbery, all the accused are guilty of robo con homicidio whether or not they actually participated in the
killing." 10
That rule was applied in People v. Puno, 11 where the accused and confederate Tenarife, in pursuance of a
preconceived plan, boarded a jeep and help up its passengers, with Tenarife killing one of them after divesting
him of his wallet and his watch. Puno himself robbed another passenger but did not participate in the shooting
of the deceased victim. Nonetheless he was held guilty of robbery with homicide as the killing was committed
by Tenarife in connection with the robbery which Puno and Tenarife had conspired to commit.
"Generally, when robo con homicidio has been proven, all those who had taken part in the robbery are guilty of
the complex crime unless it appears that they endeavored to prevent the homicide (U.S. v. Macalalad, 9 Phil. 1;
Decisions of Supreme Court of Spain dated Feb. 23 and April 30, 1972 and June 19, 1980; 3 Viada, Codigo
Penal, 347, 354, 358)." 12
"It may be observed that, although Puno did not actually take part in the killing of Oyong by Tenarife, his
presence in the jeepney was a crucial factor that emboldened his confederate in perpetrating that homicidal act
with impunity." 13
In People v. Veloso, 14 this Court held:
". . . . Well entrenched is the rule that whenever a homicide has been committed as a consequence, or on the
occasion, of a robbery, all those who took part as principals in the robbery will also be held guilty as principals
of the special complex crime of robbery with homicide, although they did not actually take part in the homicide,
unless it clearly appears that they endeavored to prevent the homicide."
170
That decision cited the earlier case of People v. Mangulabnan, 15 where it was categorically declared: LibLex
". . . in order to determine the existence of the crime of robbery with homicide it is enough that a homicide
would result by reason or on the occasion of the robbery (Decision of Supreme Court of Spain of Nov. 26, 1892,
and Jan. 7, 1878, quoted in 2 Hidalgo's Penal Code, p. 267, and 259-260, respectively). This High Tribunal,
speaking of the accessory character of the circumstances leading to the homicide, has also held that it is
immaterial that the death would supervene by mere accident (Decision of Sept. 9, 1886, Oct. 22, 1907, April 30,
1910 and July 14, 1917), provided that the homicide be produced by reason or on the occasion of robbery,
inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes,
modes or persons intervening in the commission of the crime, that has to be taken into consideration (Decision
of Jan. 12, 1889 see Cuello Calon's Codigo Penal, pp. 501-502; Emphasis supplied)."
It is futile therefore for the accused-appellant to argue that he was inside the panel with the companions of Chua
when the latter was killed by Bartulay and could not have stopped the shooting. The undisputed fact is that the
killing was committed on the occasion of the robbery which Beran and Bartulay plotted and were carrying out
together. In the absence of clear evidence that he endeavored to prevent it, Beran is as guilty of the homicide as
Bartulay although it was Bartulay who pulled the trigger.
Concerning the aggravating circumstances which the accused-appellant insists should not have been taken
against him, the Court notes that no specific finding regarding such circumstances was made by the trial judge,
who simply meted out the penalties without explanation. The trial judge, notably, did not say why, after finding
both Beran and Laguardia guilty, the former should be sentenced to death and the latter only to life
imprisonment. If any error has been committed with respect to Laguardia's penalty and the circumstances so
indicate it is too late to correct it now as the same has long since become final. By withdrawing his appeal,
Laguardia may have benefited from the trial judge's carelessness.
The trial court also does not clearly impute to Beran any aggravating circumstance and merely hints at
nighttime and use of motor vehicle almost in passing. This is another censurable flaw in the decision. It is no
wonder that the Court itself is perplexed over the accused-appellant's assignment of error that the trial court had
taken the said several aggravating circumstances against him.
In any event, it is clear that, as alleged in the amended information, the crime committed by Beran was
aggravated by despoblado and justified the imposition on him of the death penalty as prescribed by Article 294
of the Revised Penal Code. The evidence shows that the accused lay in wait for the truck being driven by Chua
at an isolated portion of Highway 36, choosing that particular spot where they could commit the crime they
were planning without disturbance or discovery and with easy opportunity for escape. 16 The use of motor
vehicles is also appreciated because the conspirators drove away from the scene of the crime to facilitate their
escape and also to prevent the other passengers of the truck, whom they took with them, from reporting the
offense to the authorities. 17
Nighttime is rejected, however, because it was not especially sought, as Chua's trip schedule and not the
discretion of the culprits determined the time of its commission. Evident premeditation is, of course, inherent in
the crime of robbery and was not proved in the commission of the killing. As for treachery, there is no evidence
of its employment as none of the witnesses actually saw the shooting of Chua, being all inside the panel when
they heard the fatal shots.
Miguel Chua was only 32 years old at the time he was killed and left a wife and three children aged,
respectively, 11, 10 and 8, the youngest a daughter. To provide for his family, he was willing to work even at
night, not unaware perhaps, given the condition of the times, of the dangers that lurked in the desolate routes he
traveled, considering especially the sizeable amounts of money he often carried. If he was nonetheless
undeterred, it was probably because, like the promising young man that he was, he had a dream for the future.
Tragically, that dream died with him on the lonely stretch of road where greed lay in ambush with a gun. Cdpr
The indemnity for the death of Chua is increased to P30,000.00. Funeral expenses amounted to P16,500.00. 18
As the victim was earning at the time of his death a monthly compensation of P2,500.00, 19 consisting of salary
and commission, or P30,000.00 annually, and could have lived about 24 more years, 20 his total earnings for the
period would have amounted to P720,000.00. The heirs are also entitled to this amount plus P10,000.00 moral
damages and P10,000.00 exemplary damages. 21
WHEREFORE, the appealed decision is AFFIRMED as MODIFIED but in view of the provisions of the new
Constitution, the death penalty is reduced to reclusion perpetua. The accused-appellant shall also pay the civil
indemnity specified above, and costs.
171
SO ORDERED.
The facts are as follows:
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
||| (People v. Laguardia, G.R. No. L-63243, [February 27, 1987], 232 PHIL 142-152)
On 6 November 1995, an Information 3 was filed before the RTC charging appellant and Petronilla of Murder,
thus:
That on or about the 28th day of October 1995, in Quezon City, Philippines, the said accused, conspiring
together, confederating with and mutually helping each other, with intent to kill, did then and there, willfully,
unlawfully and feloniously with evident premeditation, treachery, assault, attack and employ personal violence
upon the person of RAMON GARCIA y LOPEZ by then and there shooting the latter with the use of a .45 cal.
pistol hitting him on the different parts of his body, thereby causing the instant and immediate cause of his
death, to the damage and prejudice of the heirs of said RAMON GARCIA y LOPEZ.
EN BANC
When arraigned on 20 December 1995, appellant and Petronilla, assisted by their respective counsels de parte,
pleaded "Not Guilty" to the charge of murder. 4 Trial on the merits thereafter ensued.
[G.R. No. 178541. March 27, 2008.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANGELO ZETA, accused-appellant.
The prosecution presented as witnesses Aleine Mercado (Aleine), Dr. Maria Cristina Freyra (Dr. Freyra), Police
Inspector Solomon Segundo (Inspector Segundo), Rey Jude Naverra (Rey), Edwin Ronk (Edwin), Francisco
Garcia (Francisco), SPO1 Carlos Villarin (SPO1 Villarin), and SPO2 Wakab Magundacan (SPO2 Magundacan).
Their testimonies, taken together, bear the following: aHECST
DECISION
CHICO-NAZARIO, J p:
For review is the Decision dated 30 June 2006 of the Court of Appeals in CA-G.R. CR-H.C. No. 02054, 1
affirming in toto the Decision 2 dated 29 November 2002 of the Quezon City Regional Trial Court (RTC),
Branch 88, in Criminal Case No. Q-95-63787, finding accused-appellant Angelo Zeta and his wife, Petronilla
Zeta (Petronilla), guilty of murder. ESTCDA
On 28 October 1995, at around 12:00 midnight, Edwin, Rey and a certain Melvin Castillo (Melvin) had a
drinking spree outside the house of Rey located at No. 30-B Tacio Street, La Loma, Quezon City. At about 2:00
in the morning of the same date, a car stopped in front of the three. Appellant was driving the car while
Petronilla was seated beside him. Petronilla opened the car's window and asked Edwin if he knows Ramon and
the latter's address at No. 25-C General Tinio Street, La Loma, Quezon City. Edwin replied that he did not know
Ramon or his address. Thereafter, appellant and Petronilla left on board the car and proceeded to General Tinio
Street, La Loma, Quezon City. 5
172
At about 2:15 in the morning of the same date, the car boarded by appellant and Petronilla stopped in front of
Ramon's house at No. 25-C General Tinio Street, La Loma, Quezon City. After parking nearby, appellant and
Petronilla alighted from the car and proceeded to Ramon's house. Petronilla repeatedly called Ramon. Aleine
(niece of Cristina Mercado, Ramon's common-law wife) was awakened by the repeated calls and opened the
door. Petronilla requested Aleine to call Ramon. Aleine told Petronilla that she would wake up Ramon who was
then sleeping with Cristina at the second floor of the house. Aleine invited appellant and Petronilla inside the
house but the two replied that they would just wait for Ramon outside. Aleine proceeded to the second floor of
the house and knocked at the door of Ramon's room. Ramon woke up. Subsequently, Aleine went downstairs
and proceeded to the dining table. While Ramon was walking down the stairs, appellant suddenly entered the
house and shot Ramon several times on different parts of the body with a caliber .45 Llama pistol. Upon seeing
appellant shooting Ramon, Aleine hid inside the restroom. When the gunshots ceased, Aleine went out of the
restroom and saw Ramon sprawled and bloodied on the ground floor. 6 DISHEA
Edwin, Rey and Melvin were still drinking when they heard the gunshots. They rushed to the direction of
Ramon's house. When they were nearing Ramon's house, Petronilla suddenly stepped out of the main door of
Ramon's house followed by appellant. Melvin uttered, "Mamamatay tao". Petronilla merely looked at them and
entered the car. Appellant also proceeded inside the car and thereafter the car sped away. 7
Subsequently, Aleine went out of the house and called for help. Edwin, Rey and Melvin approached her. They
carried Ramon and placed him inside a vehicle owned by a neighbor. While they were on their way to the
Chinese General Hospital, Ramon told Aleine that the one who shot him was "asawa ni Nellie na kapitbahay
namin sa Las Pias". Ramon died due to gunshot wounds while being operated on at the Chinese General
Hospital. Thereafter, the police arrived at the crime scene and recovered several empty bullet shells and slugs. 8
At about 10:55 the following morning, SPO2 Magundacan received a report that a carnapped vehicle was
parked along Lakandula Street, P. Tuazon Blvd., Quezon City. SPO2 Magundacan proceeded thereat and saw
appellant about to board a car armed with a gun visibly tucked in his waist. SPO2 Magundacan approached
appellant and asked him for a license and/or registration papers of the gun but appellant did not show any. SPO2
Magundacan also inquired from Petronilla, who was inside the car also armed with a gun tucked in her waist, if
she had a license but Petronilla likewise failed to show any. Thus, SPO2 Magundacan brought appellant and
Petronilla to Police Precinct 8, Project 4, Quezon City, for investigation. Subsequently, appellant and Petronilla,
upon the request of the La Loma police, were turned over to the police station for investigation as regards the
killing of Ramon. Appellant and Petronilla were thereafter charged with murder. 9 cAaDHT
The prosecution also adduced documentary and object evidence to buttress the testimonies of its witnesses, to
wit: (1) death certificate of Ramon; 10 (2) sworn statement of Aleine; 11 (3) request for autopsy examination of
Ramon's body; 12 (4) medico-legal report issued and signed by Dr. Freyra stating that Ramon died due to
gunshot wounds; 13 (5) anatomical sketch of a human body signed by Dr. Freyra indicating the location of the
gunshot wounds on Ramon's body; 14 (6) physical science report stating that a paraffin test was conducted on
both hands of Ramon and they were found negative for gunpowder nitrates; 15 (7) handwritten sketch made by
Edwin depicting the streets of Tacio and General Tinio; 16 (8) request for ballistic examination of the object
evidence recovered from the crime scene; 17 (9) ballistic report issued and signed by Inspector Segundo stating
that the bullet extracted from Ramon's body and other bullets recovered from the crime scene were similar to
the bullets of the caliber .45 Llama pistol seized from appellant; 18 (10) certification from the Personnel
Division of the Philippine Long Distance Telephone Company (PLDT) affirming that Ramon was its regular
employee from 14 February 1981 up to 27 October 1995 and that he was receiving a monthly salary of
P13,687.00 plus other benefits; 19 (11) summary of expenses and receipts for the wake of Ramon; 20 (12) joint
affidavit of SPO2 Magundacan and a certain PO2 Ronald Zamora; 21 (13) photographs showing the spot where
appellant and Petronilla stood while waiting for Ramon, the stairs where Ramon walked down shortly before he
was shot several times by appellant, the area inside Ramon's house where appellant positioned himself while
shooting at Ramon, and the location where Ramon fell down after he was shot several times by appellant; 22
(14) nine empty shells and seven deformed slugs fired from a caliber .45 pistol which were recovered by SPO1
Villarin from the crime scene; 23 (15) a deformed slug fired from a caliber .45 pistol which was extracted from
Ramon's body; (16) test bullets fired from the caliber .45 Llama pistol seized from appellant; 24 (17) the caliber
.45 Llama pistol with Serial Number C-27854 seized from appellant; 25 and (18) a calling card recovered from
Ramon with the print label "Cristine Rent A Car", "Angelo D. Zeta" and with telephone numbers and addresses.
26 DETACa
For its part, the defense presented the testimonies of appellant, Petronilla, and Annabelle Vergara (Annabelle) to
refute the foregoing allegations. Their version of the incident is as follows:
On 27 October 1995, at about 10:00 in the evening, appellant, Petronilla and Annabelle (housemaid of the
couple) were in the couple's house at Cainta, Rizal. 27 Later, appellant took Petronilla's caliber .38 pistol and
went to his brother's (Jose Zeta, Jr.) house in Marikina arriving therein at around 12:00 midnight. Jose was out
of the house so appellant waited for him. At about 2:30 in the morning of 28 October 1995, Jose arrived.
Thereafter, appellant demanded from Jose the return of his three firearms, one of which is a caliber .45 pistol.
Jose, however, handed only the caliber .45 pistol to appellant. Appellant berated Jose for refusing to return the
two other firearms. Irked, Jose drew a gun. Appellant also drew the caliber .45 pistol and shot Jose four times.
173
Jose fell down on the ground. Afterwards, appellant left the house, took Jose's car which was parked near the
house, and proceeded to Police Precinct 8, Project 4, Quezon City, where he waited for a certain Tony Tolentino
whom he claims to be a policeman assigned at the Southern Police District. At about 9:00 in the morning of 28
October 1995, the policeman on duty at Precinct 8 informed appellant that the latter's car parked inside the
precinct was a carnapped vehicle. The policemen searched the car and found several guns including the caliber .
45 and the caliber .38. Appellant was thereupon detained and charged with illegal possession of firearms and
carnapping. 28 aCTcDH
At about 10:00 in the morning of 28 October 1995, Petronilla received a telephone call informing her that
appellant was at Police Precinct 8, Project 4, Quezon City. She immediately proceeded thereat and presented
documents relative to her ownership and license of the caliber .38 seized from appellant. Thereafter, she went
home at about 11:00 in the evening. 29
The accused Angelo Zeta and Petronilla Zeta are also sentenced to indemnify in SOLIDUM the heirs of the
victim in the amount of P50,000.00 for the death of Ramon Garcia; P146,000.00 for the hospital and burial
expenses; and P1,642,440.00 for the lost income of the deceased reckoned at 10 years of productive life, plus
costs.
The .45 caliber Llama pistol with Serial Number C-27854 is confiscated in favor of the Government to be kept
by the Philippine National Police as mandated by law. 31
On 9 December 2002, the RTC issued an Order forwarding the records of the instant case to Us for automatic
review because of the death penalty imposed on appellant. 32 EHTADa
On 24 December 2002, Petronilla filed a Notice of Appeal with the RTC stating that she would appeal her
conviction to this Court. 33
On 2 November 1995, Petronilla visited appellant at Precinct 8. During the visit, Aleine arrived at Precinct 8
and pointed to appellant and Petronilla. Subsequently, appellant and Petronilla were informed by the police that
they were suspects in the killing of Ramon. Thereafter, they were charged with murder. 30
After trial, the RTC rendered a Decision on 29 November 2002 convicting appellant and Petronilla of murder. It
held that appellant and Petronilla conspired in killing Ramon. It also ruled that Ramon's killing was attended by
the aggravating circumstances of evident premeditation and nocturnity. In conclusion, it imposed the death
penalty on appellant while Petronilla was merely sentenced to reclusion perpetua "owing to her being a mother
and her lesser degree of participation in the killing of Ramon." The fallo of the decision reads: EHTCAa
Accordingly, based on the evidence presented by the prosecution and the defense and finding both accused
guilty beyond reasonable doubt of the crime of MURDER attended by the aggravating circumstances of evident
premeditation and nocturnity without being offset by any mitigating circumstances, the accused Angelo Zeta is
hereby sentenced to death by lethal injection. The wife and co-accused Petronilla Zeta, although a coconspirator in the commission of the offense charged, is hereby sentenced to RECLUSION PERPETUA owing
to her being a mother and her lesser degree of participation in the act of murder.
On 28 April 2004, Petronilla, through counsel, filed a Motion to Withdraw Appeal before us 34 stating that:
After a thorough review of the available stenographic notes obtained by the close relatives of the accusedappellant from the Regional Trial Court, the undersigned counsel found out that there are no testimonial and/or
documentary evidence presented before the lower Trial Court that could sufficiently serve as justifiable basis to
warrant the reversal of the appealed decision rendered insofar as PETRONILLA ZETA is concerned.
Moreover, the undersigned counsel sustained serious physical injuries that render difficult to further handle the
appeal that will require lengthy preparation of appellant's brief and other legal pleadings as may be required
under the Rules of Court.
174
Consequently, after discussion with accused-appellant PETRONILLA ZETA, the undersigned counsel informed
her that he is now constrained to withdraw his appearance in the above-entitled appealed case.
Upon being informed of the health predicament of the undersigned counsel and after being enlightened about
the weakness of the appeal, accused-appellant PETRONILLA ZETA willfully and voluntarily decided to
WITHDRAW the appeal and do hereby signify to the Honorable Court that she is no longer interested in the
further prosecution of her appeal. She, likewise, has no objection to the withdrawal of the appearance of Atty.
Alfredo E. Anasco, as her counsel in the above-entitled case.
WHEREFORE, it is respectfully prayed that the above-entitled appeal be ordered withdrawn and the MOTION
TO WITHDRAW APPEAL be GRANTED, and the withdrawal of appearance of counsel be given due course.
On 28 September 2004, we issued a Resolution granting Petronilla's motion to withdraw appeal. 35
On 22 November 2005, we issued a Resolution remanding the instant case to the Court of Appeals for proper
disposition pursuant to our ruling in People v. Mateo. 36 On 30 June 2006, the Court of Appeals promulgated its
Decision affirming in toto the Decision of the RTC. Thus: CaASIc
Thus, after finding that the trial court's conclusions are supported by the evidence presented and in full accord
with existing law and jurisprudence, We find no reason to set it aside.
WHEREFORE, based on the foregoing premises, the appeal is hereby DISMISSED. The November 29, 2002
Decision of the Regional Trial Court of Quezon City, Branch 88 in Criminal Case No. Q-95-63787 is
AFFIRMED. 37
I.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE
FACT THAT THE PROSECUTION WITNESSES DID NOT POSITIVELY IDENTIFY HIM;
II.
THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF DENIAL AND ALIBI
INTERPOSED BY THE ACCUSED-APPELLANT;
III.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE FACT THAT
HIS GUILT WAS UNDER A SHADOW OF DOUBT. 38 ICAcHE
Apropos the first issue, appellant claims that although Edwin and Rey positively identified Petronilla as the one
who asked them about Ramon and his address shortly before the incident occurred, the two, nevertheless, failed
to identify appellant as Petronilla's companion during the said questioning. He also argues that Aleine's
testimony identifying him as the one who shot Ramon during the incident is not morally certain because Aleine
narrated that she saw only the side portion of his face and the color of the shirt he wore during the incident. 39
It appears that Edwin and Rey did not actually see appellant shoot Ramon during the incident. Nonetheless,
Aleine saw appellant shoot Ramon on that fateful night. Her positive identification of appellant and direct
account of the shooting incident is clear, thus: aHIDAE
Appellant elevated the present case before us on the following grounds:

ATTY. A. OLIVETTI (DIRECT EXAMINATION)
175
Q. Aleine Mercado, are you the same Aleine Mercado who is listed as one of the witnesses in this case?
WITNESS
A. Yes, sir.
Q. Do you know the accused in this case?
A. Yes, sir.
Q. If they are inside the courtroom, will you identify them?
A. Yes, sir.
Q. On October 28, 1995, at about 2:15 in the morning, do you remember if there was an unusual incident that
happened?
A. Yes, sir.
Q. Will you please tell the Court briefly what that unusual incident was?
A. Tito Ramon Garcia was shot, Sir.
Q. And who is this Tito Ramon Garcia that you are talking about?
A. He is the live-in partner of my aunt Cristy.
Q. A while ago you mentioned that you have been living with your auntie and Tito Ramon Garcia in Gen. Tinio,
La Loma, Quezon City. Will you please describe before the Honorable Court the residence or your house at that
time where you were living with your auntie and Tito Ramon Garcia?
Q. Will you please look around and point before the Honorable Court the person of the accused in this case?
A. It is a small house we were living in. It has a mezzanine and it measures 4 x 3 meters, sir. IDCcEa
A. Yes, sir. That man wearing yellow T-shirt and that lady who is also wearing yellow shirt. (witness pointing to
a man who when asked of his name identified himself as Angelo Zeta and to a lady beside Angelo Zeta who
when asked of her name identified herself as Petronilla Zeta.) DITEAc
xxx xxx xxx
xxx xxx xxx
Q. Do you know the person who shot your Tito Ramon Garcia?
176
A. Yes, sir.
Q. 2:15 in the afternoon?
Q. Will you please tell the Honorable Court the name of the person who shot Ramon Garcia?
A. 2:15 in the morning, your honor.
A. Angelo Zeta.
xxx xxx xxx
Q. Where in particular did Mr. Angelo Zeta shot Mr. Ramon Garcia?
ATTY. A. OLIVETTI
A. Inside our house, sir.
Q. And who was that woman that you saw was outside calling Mr. Ramon Garcia?
Q. And how was he able to enter your house?
A. Petronilla Zeta, sir.
A. Our door then was opened, sir.
Q. When you opened the door and you saw this woman, what happened between you and her?
Q. Why was your door opened at that time?
A. She asked me if a certain Ramon Garcia was there. cCaDSA
A. I heard a woman calling for my Tito Ramon and so I opened the door, sir. aTCADc
Q. What was your reply?
Q. What time was this Madam Witness?
A. I told her he was sleeping. He was upstairs.
A. 2:15.
Q. And what did the woman do after that if she did anything?
177
A. She told me to call for my Tito Ramon.
A. Near our dining table, sir.
Q. What did you do after she asked you to call Mr. Ramon Garcia?
Q. How long was it from the door? How far was it from the door?
A. I told her to enter before I call my Tito Ramon but they answered that they will remain outside.
A. Two-arms-length, sir, or "dalawang dipa", sir.
Q. And so after they refused to enter the house, what did you do as they were asking you to call Mr. Ramon
Garcia?
Q. And what happened as you stood by downstairs?
A. I told them to wait and then I went upstairs.
A. While Tito Ramon was going down, sir, Angelo Zeta suddenly entered our house and immediately shot him
several times.
Q. What did you do upstairs?
Q. How far were you from Mr. Angelo Zeta when you saw him? I withdraw that. DHACES
A. I knocked at the door to wake up my Tito Ramon. CSHEAI
How far were you from Mr. Angelo Zeta when you saw him suddenly entered the house and shot Mr. Ramon
Garcia?
xxx xxx xxx

A. Less than one meter, sir.
Q. And was your Tito Ramon able to wake up?
xxx xxx xxx.
A. When I felt that they were awakened, I went downstairs.
Q. Where was Petronilla Zeta at that time that the shooting occurred?
Q. Where in particular downstairs did you go?
178
A. She was outside the door, sir.
A. They were no longer there, sir.
xxx xxx xxx
Q. And you saw that they have guns, what did you do?
Q. What did you do as you were standing and while Mr. Angelo Zeta was shooting Mr. Ramon Garcia inside the
house?
A. I went out of the C.R. and I returned to the place where I was before where I was previously standing.
Q. And what did you see when you reached that portion that you are talking about? cCSHET
A. When I heard two shots, I run to the C.R. or comfort room.
A. I saw Tito Ramon lying frustrate and blooded.
Q. As you were in the C.R., what happened?
Q. And what did you do when you see (sic) him on that particular condition?
A. I heard successive shots, sir. EICDSA
A. I peeped at the door to find out if Angelo Zeta and companion were still there.
Q. How long did you stay in the C.R.?
Q. And what did you see?
A. Until the shots had stopped . . . Until the firing had stopped, sir.
A. They were no longer there.
Q. And you sensed that the firing had stopped, what did you do?
Q. And what did you do after that?
A. I slowly opened the door to take a look if Angelo Zeta and companion were still there.
A. I knocked at the door of the owner of the house to ask for help. 40
Q. And what did you see?
179
It should be emphasized that the testimony of a single witness, if positive and credible, as in the case of Aleine,
is sufficient to support a conviction even in the charge of murder. 41 DIAcTE
Appellant's argument that Aleine's testimony identifying him as the one who shot Ramon is not morally certain
because she saw only the side portion of his face and the color of the shirt he wore during the incident, deserves
scant consideration. A person can still be properly identified and recognized even by merely looking at the side
portion of his face. To be sure, Aleine recognized and identified appellant in the police line-up and during trial
as the one who shot Ramon. Experience dictates that precisely because of the unusual acts of violence
committed right before their eyes, witnesses can remember with a high degree of reliability the identity of
criminals at any given time. 42 A startling or frightful experience creates an indelible impression in the mind
that can be recalled vividly. 43 It bears stressing that Aleine was less than one meter away from appellant when
the latter shot Ramon. The crime scene was also well-lighted during the incident because there was a
fluorescent bulb inside the house. 44
husband of "Mely", his former neighbor in Las Pias, who shot him. Further, Petronilla's nickname could either
be "Nellie" or "Nelia" and not "Mely" as referred to by Ramon. 46
Lack of motive does not preclude conviction when the crime and the participation of the accused in the crime
are definitely shown, particularly when we consider that it is a matter of judicial knowledge that persons have
killed or committed serious offenses for no reason at all. Motive gains importance only when the identity of the
culprit is doubtful. 47 Where a reliable eyewitness has fully and satisfactorily identified the accused as the
perpetrator of the felony, motive becomes immaterial to the successful prosecution of a criminal case. 48 It is
obvious from the records that Aleine positively and categorically identified appellant as the person who shot
Ramon during the incident. Her testimony was corroborated on relevant points by Edwin and Rey. ADcHES
The testimonies of Aleine and of the other prosecution witnesses are in harmony with the documentary and
object evidence submitted by the prosecution. The RTC and the Court of Appeals found their testimonies to be
credible and trustworthy. The rule is that the findings of the trial court, its calibration of the testimonies of the
witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said
findings are accorded respect if not conclusive effect. This is more true if such findings were affirmed by the
appellate court. When the trial court's findings have been affirmed by the appellate court, said findings are
generally binding upon this Court. 45 IDaEHS
There is no inconsistency in the testimonies of the prosecution witnesses regarding the car boarded by appellant
and Petronilla in leaving the crime scene and, subsequently, at the time they were apprehended. Edwin testified
that appellant and Petronilla left the scene after the incident which was between 2:15 and 2:30 in the morning
on board a gold-colored Mitsubishi Lancer. 49 SPO2 Magundacan told the court that he apprehended appellant
at around 10:55 in the morning of the same day while the latter was about to board a blue Toyota Corona
Macho. 50 In his affidavit attached to the records, Jan Ryan Zeta, son of Jose, narrated that Jose was shot by
appellant at about 4:00 in the morning of the same date. 51 Appellant admitted that after shooting Jose on the
early morning of 28 October 1995, he took the latter's Toyota Corona Macho and left. 52 Thus, it is probable
that after leaving the crime scene at La Loma on board a gold Mitsubishi Lancer at about 2:15 or 2:30 in the
morning, appellant and Petronilla then proceeded to Marikina and took Jose's blue Toyota Corona Macho. This
explains why the car of appellant and Petronilla used in leaving the crime scene was different from that which
they used at the time of their apprehension.
Anent the second and third issues, appellant contends that his conviction is unwarranted based on the following
reasons: (1) the prosecution failed to establish any possible motive for the appellant to kill Ramon; (2) there is
an inconsistency in the testimony of the prosecution witnesses regarding the type and color of the car boarded
by appellant and Petronilla before and after the incident. Edwin testified that appellant and Petronilla left the
scene on board a gold-colored Mitsubishi Lancer; while SPO2 Magundacan narrated that he apprehended
appellant while the latter was about to board a blue Toyota Corona Macho; (3) Jose could have been the one
who fatally shot Ramon and appellant could have been mistakenly identified as Jose because they have the
same physical appearance and facial features; (4) if appellant was indeed the one who shot Ramon, he could
have immediately confessed such crime to the police just like what he did after killing Jose; and (5) there is no
proof that appellant is the husband of a certain "Mely". Ramon's dying declaration to Aleine was that it was the
Appellant's theory of alibi that it was physically impossible for him to be at the crime scene in La Loma when
the incident occurred because he was in Marikina, and that Jose could have been the one who fatally shot
Ramon is flimsy and cannot prevail over the positive and credible testimony of Aleine. Appellant was
mistakenly identified as Jose because they have the same physical appearance and facial feature. In addition, the
empty bullet shells and slugs recovered from the crime scene were found to have the same characteristics as
those of the bullets of appellant's caliber .45 Llama pistol. Further, there is no testimonial or documentary proof
showing that it was Jose who shot Ramon. Appellant himself testified that he met Jose in the latter's house in
Marikina at about 2:30 in the morning of 28 October 1995. On the other hand, the shooting of Ramon at La
Loma, Quezon City occurred at about 2:15 in the morning of the same date. Hence, it was impossible for Jose to
be at La Loma, Quezon City and to have shot Ramon at such time and place. HIACEa
180
It is insignificant whether Petronilla was referred to by Ramon in his dying declaration as "Mely" or "Nellie."
As correctly observed by the Court of Appeals, Ramon sustained twelve gunshot wounds and was catching his
breath when he uttered the name or nickname of Petronilla as the wife of appellant. Thus, understandably, he
could not have spoken clearly in such a difficult situation. Moreover, Ramon referred to "Nellie" or "Mely" as
his former neighbor in Las Pias. Likewise, appellant and Petronilla admitted that Ramon was their former
neighbor in Las Pias. 53
We now go to the propriety of the penalty imposed and the damages awarded by the RTC which the Court of
Appeals affirmed.
The RTC held that the killing of Ramon qualifies as murder because of the presence of the aggravating
circumstances of evident premeditation and nighttime or nocturnity. It is a rule of evidence that aggravating
circumstances must be proven as clearly as the crime itself. 54
Evident premeditation qualifies the killing of a person to murder if the following elements are present: (1) the
time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit clung to
his resolve; and (3) a sufficient interval of time between the determination or conception and the execution of
the crime to allow him to reflect upon the consequence of his act and to allow his conscience to overcome the
resolution of his will if he desired to hearken to its warning. 55 SHADEC
The first two elements of evident premeditation are present in the case at bar.
The time manifesting Petronilla and appellant's determination to kill Ramon was when they, at about 2:00 in the
morning of 28 October 1995, repeatedly asked Edwin about Ramon and the latter's address, and when they
subsequently proceeded to the house of Ramon.
The fact that appellant and Petronilla waited for Ramon, and appellant's subsequent act of shooting him at
around 2:15-2:30 in the morning of 28 October 1995 indicate that they had clung to their determination to kill
Ramon.
The third element of evident premeditation, however, is lacking in the instant case. The span of thirty minutes or
half an hour from the time appellant and Petronilla showed their determination to kill Ramon (2:00 in the
morning of 28 October 1995) up to the time appellant shot to death Ramon (2:15-2:30 in the morning of 28
October 1995) could not have afforded them full opportunity for meditation and reflection on the consequences
of the crime they committed. 56 We have held that the lapse of thirty minutes between the determination to
commit a crime and the execution thereof is insufficient for a full meditation on the consequences of the act. 57
HSCcTD
The essence of premeditation is that the execution of the criminal act must be preceded by cool thought and
reflection on the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm
judgment. To justify the inference of deliberate premeditation, there must be a period sufficient in a judicial
sense to afford full opportunity for meditation and reflection and to allow the conscience of the actor to
overcome the resolution of his will if he desires to hearken to its warning. Where no sufficient lapse of time is
appreciable from the determination to commit the crime until its execution, evident premeditation cannot be
appreciated. 58
Nonetheless, we find that treachery attended the killing of Ramon.
There is treachery when the offender commits any of the crimes against a person, employing means, methods or
forms in the execution thereof which tend directly and specially to ensure its execution, without risk to himself
arising from any defensive or retaliatory act which the victim might make. 59 The essence of treachery is a
deliberate and sudden attack that renders the victim unable and unprepared to defend himself by reason of the
suddenness and severity of the attack. Two essential elements are required in order that treachery can be
appreciated: (1) the employment of means, methods or manner of execution that would ensure the offender's
safety from any retaliatory act on the part of the offended party who has, thus, no opportunity for self-defense or
retaliation; and (2) a deliberate or conscious choice of means, methods or manner of execution. Further, this
aggravating circumstance must be alleged in the information and duly proven. 60 IESDCH
181
In the case at bar, treachery was alleged in the information and all its elements were duly established by the
prosecution.
It has been established that Ramon, still groggy after having been awakened by Aleine, was walking down the
stairs when appellant suddenly shot him. The suddenness and unexpectedness of the appellant's attack rendered
Ramon defenseless and without means of escape. Appellant admitted that he was a member of a gun club and
was proficient in using his caliber .45 Llama pistol. 61 In fact, he was good at shooting a moving target during
his practice. 62 He also stated that he owned five firearms. 63 Evidently, appellant took advantage of his
experience and skill in practice shooting and in guns to exact the death of Ramon. There is no doubt that
appellant's use of a caliber .45 Llama pistol, as well as his act of positioning himself in a shooting stance and of
shooting Ramon several times on the chest area and on other parts of body, were obviously adopted by him to
prevent Ramon from retaliating or escaping. Considering that Ramon was unarmed, groggy from sleep, and was
casually walking down narrow stairs unmindful of the danger that lurked behind, there was absolutely no way
for him to defend himself or escape.
As regards the appreciation by the RTC of the aggravating circumstance of nocturnity, it should be underscored
that nocturnity or nighttime is, by and of itself, not an aggravating circumstance. It becomes so only when (1) it
was especially sought by the offender; or (2) it was taken advantage of by him; or (3) it facilitated the
commission of the crime by ensuring the offender's immunity from capture. 64 EcSaHA
Although the crime in the instant case was committed between 2:15 and 2:30 in the morning, no evidence was
presented showing that nighttime was especially and purposely sought by appellant to facilitate the commission
of the crime, or that it was availed of for the purpose of impunity. Moreover, the crime scene was well-lighted
by a fluorescent bulb. We have held that nocturnity is not aggravating where the place of the commission of the
crime was well-illuminated. 65
Even if we were to assume that nocturnity was present in the case at bar, this cannot still be appreciated in view
of the presence of treachery that attended the killing of Ramon. Nighttime cannot be considered an aggravating
circumstance separate from treachery, since nighttime is absorbed in treachery. 66
Accordingly, the death penalty imposed by the RTC on appellant should be modified. Article 248 of the Revised
Penal Code states that murder is punishable by reclusion perpetua to death. Article 63 of the same Code
provides that if the penalty is composed of two indivisible penalties, as in the instant case, and there are no
aggravating or mitigating circumstances, the lesser penalty shall be applied. Since there is no mitigating or
aggravating circumstance in the instant case, and treachery cannot be considered as an aggravating
circumstance as it was already considered as a qualifying circumstance, the lesser penalty of reclusion perpetua
should be imposed. 67 ITcCSA
The award of damages and its corresponding amount rendered by the RTC should also be modified in line with
current jurisprudence.
In addition to the civil indemnity of P50,000.00 for Ramon's death, the award of moral damages amounting to
P50,000.00 is also proper since it is mandatory in murder cases, without need of proof and allegation other than
the death of the victim. 68
The heirs of Ramon are also entitled to exemplary damages in the amount of P25,000.00, since the qualifying
circumstance of treachery was firmly established. 69
The amount of actual damages should be reduced from P146,000.00 to P115,473.00 per computation of the
official receipts attached to the records. 70
The heirs of Ramon should also be indemnified for loss of earning capacity pursuant to Article 2206 of the New
Civil Code. 71 Consistent with our previous decisions, 72 the formula for the indemnification of loss of earning
capacity is: cTESIa
Net Earning Capacity = Life Expectancy x Gross Annual Income

(GAI) Living Expenses
= 2/3 (80 age of deceased) x (GAI 50%
182
of GAI).
Ramon's death certificate states that he was 37 years old at the time of his demise. 73 A certification from
Ramon's employer, Philippine Long Distance Telephone Company, shows that Ramon was earning an annual
gross income of P164,244.00. 74
Puno, C.J., Quisumbing, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Velasco, Jr.,
Nachura, Reyes, Leonardo-de Castro and Brion, JJ., concur.
Ynares-Santiago, J., is on official leave under the Court's Wellness Program.
||| (People v. Zeta, G.R. No. 178541, [March 27, 2008], 573 PHIL 125-154)
Applying the above-stated formula, the indemnity for the loss of earning capacity of Ramon is P2,354,163.99,
computed as follows:
Net Earning Capacity = 2/3 (43) x (P164,244.00 P82,122.00)
FIRST DIVISION
= 28.66 x P82,122.00
[G.R. No. 35071. August 27, 1931.]
= P2,354,163.99
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. BLAS ORTIZ and MODESTA
ZAUSA, defendants-appellants.
WHEREFORE, after due deliberation, the Decision of the Court of Appeals dated 30 June 2006 in CA-G.R.
CR-H.C. No. 02054 is hereby AFFIRMED with the following MODIFICATIONS: (1) the penalty of death
imposed on appellant is lowered to reclusion perpetua; (2) appellant is ordered to pay the heirs of Ramon Garcia
the amounts of P50,000.00 as moral damages and P25,000.00 as exemplary damages; (3) the award of actual
damages is reduced to P115,473.00; and (4) the indemnity for Ramon's loss of earning capacity is increased to
P2,354,163.99. The award of civil indemnity in the amount of P50,000.00 is maintained. aDECHI
Appellant's caliber .45 Llama pistol with Serial Number C-27854 is hereby confiscated in favor of the
Government.
SO ORDERED.
Edilberto Gonzalez for appellants.
Attorney-General Jaranilla for appellee.
SYLLABUS
1. CRIMINAL LAW; HOMICIDE; CRIMINAL LIABILITY. B pointed a shotgun at S without good reason;
there ensued a struggle between the two for the weapon. M, a female companion of B, approached the
combatants and quickly wounded S in the abdomen with a spear, in consequence of which S died almost
183
instantly. Held: That M alone is liable for the resulting homicide, and B cannot be convicted as accomplice,
there being no prior plan or agreement between them, and because B did not even know that M would intervene
in the struggle, and attack the deceased with the spear.
2. CRIMINAL PROCEDURE; DYING DECLARATION, ADMISSIBILITY OF. The written statement

made by the deceased before the justice of the peace who conducted the preliminary investigation, with regard
to the person who attacked him and the circumstances of the crime, borne out by the concluding statement to the
effect that he felt very seriously ill and would soon die, and by the fact that he did die on the night of the attack,
is an ante mortem declaration admissible in evidence, notwithstanding the fact that said concluding statement
regarding his serious condition and his belief that he was about to die, was not made in the beginning.
(Underhill on Criminal Evidence [2d ed.], sec. 103; Moran on Evidence, sec. 310-b, pp. 205-209; U. S. vs.
Castellon, 12 Phil., 160; U. S. vs. Mallari, 29 Phil., 14; U. S. vs. Jakan Tucko, 20 Phil., 235; U. S. vs. Virrey, 37
Phil., 618; and U. S. vs. Ramos, 23 Phil., 300.)
Counsel for the appellants assigns in his brief the following alleged errors:
"1. The trial court erred in giving credit to the testimony of the witnesses for the prosecution, and not to the
witnesses for the defense, and in concluding that the deceased felt no resentment whatever.
"2. The court also erred in finding that after Sotero Bancoyo's death, the male defendant placed the shotgun
beside the corpse in order to pretend that it belonged to the deceased.
"3. The court likewise erred in not finding that it was Blas Ortiz who wounded, assaulted, and killed Sotero
Bancoyo, and that he did so in self-defense; and
DECISION
"4. The trial court also erred in not acquitting the defendants because they acted in self-defense."
IMPERIAL, J p:
Blas Ortiz and Modesta Zausa are charged with the crime of homicide in an information, the relevant portion of
which reads:
"That on or about September 8, 1930, in the municipality of Pilar, Province of Capiz, P. I., the aforesaid
defendants, conspiring and helping each other, willfully, unlawfully, and feloniously killed Sotero Bancoyo,
attacking him with a bamboo lance (sumbiling) and wounding him on the left side of the abdomen, from which
wound his bowels protruded. Contrary to law."
The defendants pleaded not guilty in the Court of First Instance of Capiz, were tried, and appealed from the
judgment finding them guilty of said crime, for which they were each sentenced to fourteen years, eight months
and one day of reclusion temporal, to indemnify the heirs of the deceased in the amount of P1,000, to suffer the
accessories of the law, and each to pay one-half of the costs.
With the exception of the last assignment of error, all the others raise questions of fact. It has therefore been
necessary in order to decide them, to make a careful examination of all the parol and documentary evidence
adduced at the hearing. From an analysis of said evidence we find the following facts to be clearly proved:
Sotero Bancoyo, the deceased, and the appellants had known one another for many years at the time the crime
was committed, for his wife and that of the male appellant were sisters. The latter-named appellant, for reasons
which do not appear of record, confiscated and retained several of the dead man's cedula certificates, which the
latter resented. About noon on September 8, 1930, the deceased, accompanied by three laborers, companions of
his, was returning from a plantation belonging to Pio Brionson carrying some corn which he had gathered; on
reaching the house preceding that of the defendants, as he felt thirsty he attempted to ask the occupants for
water, but as they happened to be absent, he went to the defendants' house, situate in the barrio of Malapoy,
municipality of Pilar, Province of Capiz, and while in front of the house, called out to the male appellant for a
drink of water. The latter answered from within that they had no water, and could not serve him, to which the
deceased replied: 'May we not drink your water?" The appellant rejoined, "But we have no water. How can you
compel us to give you some water?" And immediately afterwards, he descended from the house carrying his
184
shotgun, which he pointed at the deceased. When the latter saw the appellant's aggressive attitude, he flung
himself upon him, caught hold of the weapon, and they both struggled for it. At this juncture Modesta Zausa,
the female appellant, companion of Blas Ortiz, took a spear from within the house, rushed down and with it
attacked the deceased, stabbing him on the left side of the abdomen, so that the intestines protruded. (Dying
declaration.) The deceased fell to the ground unconscious, was assisted, and that night died of peritonitis.
The defense contends that the trial court should have given more credence to the witnesses for the defense, and
held that the shotgun belonged to the deceased; that a struggle took place between the deceased and the male
appellant in the course of which the latter succeeded in overpowering his opponent and in obtaining the firearm;
that in defending himself the male appellant wounded the deceased with the spear, and that the shotgun found
after the fight beside the dead man's right arm was not placed there by the appellant. As to the female appellant,
the theory of the defense is that she took no part, directly or indirectly, in the attack.
The defense's account of the occurrence finds no support in the evidence. It clearly appears that the shotgun
belonged to the appellant, who had it for a long time before the crime; several of the witnesses for the
prosecution saw him with the gun. The appellant began the attack, because of the deceased's reproach in
exclaiming there was not even water to drink in the appellants' house. These main facts have been established
by the testimony of the following witnesses for the prosecution: Guillermo Baldia, Ambrosio Tungala, and
Brigido Bernales; as well as by the deceased himself in his ante mortem declaration made before the justice of
the peace who took charge of the preliminary investigation, and went at once to the place of the crime. The fact
that the appellants testified to a different facts, and that their two witnesses apparently corroborated them, does
not mean that the evidence of the prosecution has lost its value or that the real facts are not those established
thereby.
It is argued that the ante mortem statement does not contain all the requisites for its validity, because it appears
that the deceased's statement that he was very seriously wounded, and that he believed he would not survive,
was made after and not before or at the beginning of the declaration. We hold that the latter is not invalid for
this reason.
At any rate, it appears that the deceased made the declaration referred to with the full conviction that he was
very seriously ill, and with the consciousness that he was about to die. (Underhill on Criminal Evidence [2d
ed.], sec. 103; U. S. vs. Castellon, 12 Phil., 160; U. S. vs. Mallari, 29 Phil., 14; U. S. vs. Jakan Tucko, 20 Phil.,
235; U. S. vs. Virrey, 37 Phil., 618; and U. S. vs. Ramos, 23 Phil., 300.)
After carefully examining all the evidence presented, we have no hesitancy in finding that the attack was begun,
as already stated, by the appellant Blas Ortiz, who levelled his shotgun at the deceased; that a struggle ensued
between the two for the possession of the weapon; and that at this juncture Modesta Zausa came down from the
house with a bamboo spear, approached the deceased and stabbed him on the left side of the abdomen,
producing a wound so serious that it resulted in peritonitis, which caused his death that same night.
Finally, the defense contends that if the facts are really as stated, the appellant Ortiz should be acquitted because
he did not take part in the attack made by Modesta Zausa, and because, according to the facts, there was no
previous agreement between them to commit the crime. In this we believe the defense is right. It has been
indisputably shown by the ante mortem statement (Exhibit D) that while the deceased and the male appellant
were struggling for the shotgun, Modesta Zausa caught up the spear, hurried downstairs, approached the
deceased, and suddenly stabbed him with it. From this it appears that there was no plan or agreement between
the appellants to carry out the attack which ended in the death of the victim, and that from the time Modesta
Zausa thought of wounding the deceased to the time she actually did so, barely a few seconds elapsed, and this
interval is palpably insufficient to give rise to the criminal agreement alleged in the information.
In United States vs. Magcomot (13 Phil., 386), we held:
"In the absence of a previous plan or agreement to commit a crime, the criminal responsibility arising from
different acts directed against one and the same person is individual and not collective, and each of the
participants is liable only for the acts committed by himself."
In United States vs. Reyes and Javier (14 Phil., 27), one of the defendants, named Reyes, suddenly and
unexpectedly inflicted certain mortal wounds with his club upon one Legaspi, while the latter was being held by
the other defendant. It was held:
"That Javier was neither principal nor accomplice in the commission of the crime of homicide of which Reyes
was convicted, it appearing that there was no concerted action between him and his codefendant, that he had no
185
reason to believe that a homicidal attack was about to be made, and that, in holding Legaspi, he was not
voluntarily cooperating therein."
In United States vs. Juares (21 Phil., 440), the judgment of conviction for homicide was reversed with reference
to one of the appellants on the ground that although in the course of a quarrel in a barrio he joined with some
others who were threatening the deceased, he did not follow them in pursuing said deceased, there being
nothing in the record to show that the accused had any reason for believing that his companions would take the
victim's life should they catch him up.
In United States vs. Monteroso and Monteroso (33 Phil., 325), it was held that ". . . while the record discloses
that the defendant Eugenio Monteroso joined with his father and his brothers in the quarrel which arose as a
result of the misbehaviour of the deceased, it does not conclusively appear that he was a party to the deadly
assault of which his father was guilty, or that he had any means of knowing that his father was about to make
such an assault . . .," said accused should be acquitted.
From all the foregoing it may be inferred that the first three assignments of error are unfounded, but that the
fourth and last is well taken; wherefore, we have reached the conclusion that Blas Ortiz did not incur any
criminal liability for the act committed by his coappellant.
The penalty imposed upon Modesta Zausa is the minimum of the medium degree of that fixed by article 404 of
the Penal Code, which is in accordance with law, there being no modifying circumstance present.
Wherefore, the judgment appealed from is affirmed so far as it finds the appellant Modesta Zausa guilty of
homicide and sentences her to fourteen years, eight months, and one day of reclusion temporal, to indemnify the
heirs of the deceased in the amount of P1,000, to suffer the accessories of article 59 of the Penal Code, and to
pay one-half of the costs of both instances, and reversed with reference to the appellant Blas Ortiz, who is
hereby acquitted, with the other half of the costs de oficio. So ordered.
Avancea, C. J., Johnson, Street, Romualdez and Villa-Real, JJ., concur.
MALCOLM and VILLAMOR, JJ.:

In People vs. Martinez (42 Phil., 85), it is said that:
"As no evidence appears in the record showing that the three accused had agreed to kill the deceased, but on the
contrary, as it appears from the evidence of the prosecution, that the accused Leon Martinez, in intervening in
the fight between his father and brother and the deceased, acted independently without any previous agreement
with his coaccused, it is not proper to consider said accused, Juan Martinez and Francisco Martinez, to be
responsible for the consequences of the wound inflicted upon the deceased by his coaccused Leon Martinez."
We vote to affirm.
||| (People v. Ortiz, G.R. No. 35071, [August 27, 1931], 55 PHIL 993-1000)
FIRST DIVISION
Applying the same doctrine laid down in the cases cited to the case of appellant Ortiz, we hold that he cannot be
convicted of homicide committed on the deceased Sotero Bancoyo, either as principal or as accessory before the
fact, for it has been shown that there was neither plan nor agreement between him and his companion, the
appellant Modesta Zausa, to commit the crime, and that he took no part in the latter's attack with the spear; and
this notwithstanding the fact that the said appellant began by pointing his shotgun at the deceased, but without
any consequences.
[G.R. No. 84163. October 19, 1989.]
LITO VINO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and THE COURT OF APPEALS,
respondents.
186
"Gunshot wound
Frisco T. Lilagan for petitioner.
POE Sub Scapular - 5-6 - ICA. Pal

1 & 2 cm. diameter left.
RESOLUTION
Slug found sub cutaneously,

2nd ICS Mid Clavicular line left.
GANCAYCO, J p:
CAUSE OF DEATH
The issue posed in the motion for reconsideration filed by petitioner of the resolution of this Court dated
January 18, 1989 denying the herein petition is whether or not a finding of guilt as an accessory to murder can
stand in the light of the acquittal of the alleged principal in a separate proceeding.
At about 7:00 o'clock in the evening of March 21, 1985, Roberto Tejada left their house at Burgos Street,
Poblacion, Balungao, Pangasinan to go to the house of Isidro Salazar to watch television. At around 11:00 P.M.,
while Ernesto, the father of Roberto, was resting, he heard two gunshots. Thereafter, he heard Roberto cry out in
a loud voice saying that he had been shot. He saw Roberto ten (10) meters away so he switched on the lights of
their house. Aside from Ernesto and his wife, his children Ermalyn and Julius were also in the house. They went
down to meet Roberto who was crying and they called for help from the neighbors. The neighbors responded by
turning on their lights and the street lights and coming down from their houses. After meeting Roberto, Ernesto
and Julius saw Lito Vino and Jessie Salazar riding a bicycle coming from the south. Vino was the one driving
the bicycle while Salazar was carrying an armalite. Upon reaching Ernesto's house, they stopped to watch
Roberto. Salazar pointed his armalite at Ernesto and his companions. Thereafter, the two left.
Roberto was brought to the Sacred Heart Hospital of Urdaneta. PC/Col. Bernardo Cacananta took his antemortem statement. In the said statement which the victim signed with his own blood, Jessie Salazar was
identified as his assailant.
Tension Hemathorax" 1
Lito Vino and Sgt. Jesus Salazar were charged with murder in a complaint filed by PC Sgt. Ernesto N. Ordoo
in the Municipal Trial Court of Balungao, Pangasinan. However, on March 22, 1985, the municipal court
indorsed the case of Salazar to the Judge Advocate General's Office (JAGO) inasmuch as he was a member of
the military, while the case against Vino was given due course by the issuance of a warrant for his arrest.
Ultimately, the case was indorsed to the fiscal's office who then filed an information charging Vino of the crime
of murder in the Regional Trial Court of Rosales, Pangasinan.
Upon arraignment, the accused Vino entered a plea of not guilty. Trial then commenced with the presentation of
evidence for the prosecution. Instead of presenting evidence in his own behalf, the accused filed a motion to
dismiss for insufficiency of evidence to which the prosecutor filed an answer. On January 21, 1986, 2 a decision
was rendered by the trial court finding Vino guilty as an accessory to the crime of murder and imposing on him
the indeterminate penalty of imprisonment of 4 years and 2 months of prision correccional as minimum to 8
years of prision mayor as maximum. He was also ordered to indemnify the heirs of the victim in the sum of
P10,000.00 being a mere accessory to the crime and to pay the costs.
The motion for reconsideration filed by the accused having been denied, he interposed an appeal to the Court of
Appeals. In due course, a Decision was rendered affirming the judgment of the lower court. 3
The autopsy report of his body shows the following
187
Hence, the herein petition for review wherein the following grounds are invoked:
1. "THAT AN ACCUSED CAN NOT BE CONVICTED AS AN ACCESSORY OF THE CRIME OF MURDER

FOR HAVING AIDED IN THE ESCAPE OF THE PRINCIPAL IF SAID ACCUSED IS BEING CHARGED
SOLELY IN THE INFORMATION AS PRINCIPAL FOR THE SIMPLE REASON THAT THE CRIME
PROVED IS NOT INCLUDED IN THE CRIME CHARGED.
2. THAT "AIDING THE ESCAPE OF THE PRINCIPAL" TO BE CONSIDERED SUFFICIENT IN LAW TO

CONVICT AN ACCUSED UNDER ARTICLE 19 IN SUCH A WAY AS TO DECEIVE THE VIGILANCE OF
THE LAW ENFORCEMENT AGENCIES OF THE STATE AND THAT THE "ESCAPE" MUST BE
ACTUAL;
Petitioner was charged as a principal in the commission of the crime of murder. Under Article 16 of the Revised
Penal Code, the two other categories of the persons responsible for the commission of the same offense are the
accomplice and the accessory. There is no doubt that the crime of murder had been committed and that the
evidence tended to show that Jessie Salazar was the assailant. That the petitioner was present during its
commission or must have known its commission is the only logical conclusion considering that immediately
thereafter, he was seen driving a bicycle with Salazar holding an armalite, and they were together when they left
shortly thereafter. At least two witnesses, Ernesto and Julius Tejada, attested to these facts. It is thus clear that
petitioner actively assisted Salazar in his escape. Petitioner's liability is that of an accessory.
This is not a case of a variance between the offense charged and the offense proved or established by the
evidence, and the offense as charged is included in or necessarily includes the offense proved, in which case the
defendant shall be convicted of the offense proved included in that which is charged, or of the offense charged
included in that which is proved. 5
3. THE CONVICTION OF AN ACCESSORY PENDING THE TRIAL OF THE PRINCIPAL VIOLATES

PROCEDURAL ORDERLINESS." 4
During the pendency of the appeal in the Court of Appeals, the case against Salazar in the JAGO was remanded
to the civil court as he was discharged from the military service. He was later charged with murder in the same
Regional Trial Court of Rosales, Pangasinan in Criminal Case No. 2027-A. In a supplemental pleading dated
November 14, 1988, petitioner informed this Court that Jessie Salazar was acquitted by the trial court in a
decision that was rendered on August 29, 1988.
The respondents were required to comment on the petition. The comment was submitted by the Solicitor
General in behalf of respondents. On January 18, 1989, the Court resolved to deny the petition for failure of
petitioner to sufficiently show that respondent court had committed any reversible error in its questioned
judgment. Hence, the present motion for reconsideration to which the respondents were again required to
comment. The required comment having been submitted, the motion is now due for resolution.
The first issue that arises is that inasmuch as the petitioner was charged in the information as a principal for the
crime of murder, can he thereafter be convicted as an accessory? The answer is in the affirmative.
In the same light, this is not an instance where after trial has begun, it appears that there was a mistake in
charging the proper offense, and the defendant cannot be convicted of the offense charged, or of any other
offense necessarily included therein, in which case the defendant must not be discharged if there appears to be a
good cause to detain him in custody, so that he can be charged and made to answer for the proper offense. 6
In this case, the correct offense of murder was charged in the information. The commission of the said crime
was established by the evidence. There is no variance as to the offense committed. The variance is in the
participation or complicity of the petitioner. While the petitioner was being held responsible as a principal in the
information, the evidence adduced, however, showed that his participation is merely that of an accessory. The
greater responsibility necessarily includes the lesser. An accused can be validly convicted as an accomplice or
accessory under an information charging him as a principal.
At the onset, the prosecution should have charged the petitioner as an accessory right then and there. The degree
of responsibility of petitioner was apparent from the evidence. At any rate, this lapse did not violate the
substantial rights of petitioner.
188
The next issue that must be resolved is whether or not the trial of an accessory can proceed without awaiting the
result of the separate charge against the principal. The answer is also in the affirmative. The 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.
The trial court also did not give due credit to the dying declaration of the victim pinpointing Salazar as his
assailant on the ground that it was not shown the victim revealed the identity of Salazar to his father and brother
who came to his aid immediately after the shooting. The court a quo also deplored the failure of the prosecution
and law enforcement agencies to subject to ballistic examinations the bullet slug recovered from the body of the
victim and the two empty armalite bullet empty shells recovered at the crime scene and to compare it with
samples taken from the service rifle of Salazar. Thus, the trial court made the following observation:
The third question is this - considering that the alleged principal in this case was acquitted can the conviction of
the petitioner as an accessory be maintained?
"There appears to be a miscarriage of justice in this case due to the ineptitude of the law enforcement agencies
to gather material and important evidence and the seeming lack of concern of the public prosecutor to direct the
production of such evidence for the successful prosecution of the case." 9
In United States vs. Villaluz and Palermo, 7 a case involving the crime of theft, this Court ruled that
notwithstanding the acquittal of the principal due to the exempting circumstance of minority or insanity (Article
12, Revised Penal Code), the accessory may nevertheless be convicted if the crime was in fact established.
Hence, in said case, the acquittal of the accused Salazar is predicated on the failure of the prosecution to adduce
the quantum of evidence required to generate a conviction as he was not positively identified as the person who
was seen holding a rifle escaping aboard the bicycle of Vino.
Corollary to this is United States vs. Mendoza, 8 where this Court held in an arson case that the acquittal of the
principal must likewise result in the acquittal of the accessory where it was shown that no crime was committed
inasmuch as the fire was the result of an accident. Hence, there was no basis for the conviction of the accessory.
A similar situation may be cited. The accessory was seen driving a bicycle with an unidentified person as
passenger holding a carbine fleeing from the scene of the crime immediately after the commission of the crime
of murder. The commission of the crime and the participation of the principal or assailant, although not
identified, was established. In such case, the Court holds that the accessory can be prosecuted and held liable
independently of the assailant.
In the present case, the commission of the crime of murder and the responsibility of the petitioner as an
accessory was established. By the same token there is no doubt that the commission of the same offense had
been proven in the separate case against Salazar who was charged as principal. However, he was acquitted on
the ground of reasonable doubt by the same judge who convicted Vino as an accessory. The trial court held that
the identity of the assailant was not clearly established. It observed that only Julius Tejada identified Salazar
carrying a rifle while riding on the bicycle driven by Vino, which testimony is uncorroborated, and that two
other witnesses, Ernesto Tejada and Renato Parvian, who were listed in the information, who can corroborate
the testimony of Julius Tejada, were not presented by the prosecution.
We may visualize another situation as when the principal died or escaped before he could be tried and
sentenced. Should the accessory be acquitted thereby even if the commission of the offense and the
responsibility of the accused as an accessory was duly proven? The answer is no, he should be held criminally
liable as an accessory.
Although in this case involving Vino the evidence tended to show that the assailant was Salazar, as two
witnesses saw him with a rifle aboard the bicycle driven by Vino, in the separate trial of the case of Salazar, as
above discussed, he was acquitted as the trial court was not persuaded that he was positively identified to be the
man with the gun riding on the bicycle driven by Vino. In the trial of the case against Vino, wherein he did not
even adduce evidence in his defense, his liability as such an accessory was established beyond reasonable doubt
189
in that he assisted in the escape of the assailant from the scene of the crime. The identity of the assailant is of no
material significance for the purpose of the prosecution of the accessory. Even if the assailant can not be
identified the responsibility of Vino as an accessory is indubitable.
I regret to have to disagree with the ponente's opinion.
WHEREFORE, the motion for reconsideration is denied and this denial is FINAL.
There are three (3) kinds of accessories under Article 19 of the Revised Penal Code:
SO ORDERED.
"ART. 19. Accessories. Accessories are those who, having knowledge of the commission of the crime, and
without having participated therein, either as principals or accomplices, take part subsequent to its commission
in any of the following manner:
Narvasa and Medialdea, JJ., concur.

"1. By profiting themselves or assisting the offenders to profit by the effects of the crime.
Separate Opinions
CRUZ, J., dissenting:
I agree with the proposition in the ponencia that a person may be held liable as an accessory for helping in the
escape of the principal even if the latter is himself found not guilty. The examples given are quite convincing.
However, I do not think they apply in the case at bar, which is sui generis and not covered by the general
principle.
As Justice Aquino points out, Vio was convicted of having aided Jessie Salazar, who was named as the
principal at Vio's trial. At his own trial, the same Salazar was acquitted for lack of sufficient identification.
Vio was convicted of helping in the escape not of an unnamed principal but, specifically, of Jessie Salazar. As
Salazar himself has been exonerated, the effect is that Vio is now being held liable for helping an innocent
man, which is not a crime. Vio's conviction should therefore be reversed.
"2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent
its discovery.
"3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts
with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or
an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime."
An accessory who falls under paragraph 1 may be convicted even if the principal is acquitted, as where the
principal was found to be a minor (U.S. vs. Villaluz and Palermo, 32 Phil. 377) or the son of the offended party
(Cristobal vs. People, 84 Phil. 473).
An accessory under paragraph 2 who allegedly concealed or destroyed the body of the crime or the effects or
instruments may be convicted if the commission of the crime has been proven, even if the principal has not been
apprehended and convicted.
GRIO-AQUINO, J., dissenting:
190
But an accessory under paragraph 3 who allegedly harbored, concealed the principal or assisted in his escape,
may not be convicted unless the principal, whom he allegedly harbored, concealed, or assisted in escaping, has
been identified and convicted.
I cannot see how the conviction of Vino as an accessory under paragraph 3 of Article 19 of the Rev. Penal Code,
for allegedly having assisted in the escape of Sgt. Jessie Salazar, the alleged killer of Roberto Tejada, can stand
since Salazar (who faced trial separately and subsequently) was acquitted, ironically by the same court that
convicted Vino earlier. The basis for Vino's conviction as accessory in the crime of murder was his having
driven the alleged killer Salazar in his tricycle after Tejada was killed. Since the trial court acquitted Salazar,
holding that the prosecution failed to prove that he was the killer of Tejada, then Vino's having driven him in his
tricycle did not constitute the act of assisting in the escape of a killer.
The cases of U.S. vs. Villaluz and Palermo, 32 Phil. 377 and U.S. vs. Mendoza, 23 Phil. 194 cited in the
ponencia are not in point. In the Villaluz case the charge against accused as an accessory to theft was brought
under paragraph 2 of Article 19 of the Revised Penal Code, for having concealed the effects of the crime by
receiving and concealing a stolen watch. Although the principal, a young housegirl, was acquitted on account of
her tender age and lack of discernment, the accessory was nevertheless convicted.
In the Mendoza case, the accused barrio captain who was charged as an accessory under paragraph 2 for not
reporting the fire to the authorities, was acquitted because the crime of arson was not proven, the fire being
accidental.
||| (Vino v. People, G.R. No. 84163 (Resolution), [October 19, 1989], 258-A PHIL 404-416)
SECOND DIVISION
[G.R. No. 62116. March 22, 1990.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MELQUIADES FERNANDEZ alias "Moding", and
FEDERICO CONRADO, defendants-appellants.
The Office of the Solicitor General for plaintiff-appellee.
Eduardo R. Ceniza for defendants-appellants.
SYLLABUS
The criminal liability of an accessory under paragraph 3 of Article 19 is directly linked to and inseparable from
that of the principal. Even if as in this case, the crime (murder) was proven but the identity of the murderer was
not (for the principal accused was acquitted by the trial court), the petitioner tricycle-driver who allegedly drove
him in his tricycle to escape from the scene of the crime, may not be convicted as an accessory to the murder,
for, as it turned out, the said passenger was not proven to be the murderer. The accessory may not be convicted
under paragraph 3 of Article 19 of the Revised Penal Code if the alleged principal is acquitted for, in this
instance, the principle that "the accessory follows the principal" appropriately applies.
I therefore vote to acquit the petitioner.
1. REMEDIAL LAW; CRIMINAL PROCEDURE; DUPLICITY OF OFFENSE; CONSTITUTE A GROUND

FOR MOTION TO QUASH. The trial court is accused of violating the rule against duplicity of offenses in
that, the accused were convicted for two (2) crimes of rape even when under the criminal complaint against
them, there is only one (1) crime of rape alleged. The rule invoked in Section 13, Rule 110 of the Rules of Court
which states that there should be only one (1) offense charged in a criminal complaint or information, the
purpose of which is to afford the defendant a necessary knowledge of the charge so that he may not be confused
in his defense. But it is likewise the rule that if ever duplicity of offenses is committed, the same constitutes a
ground for a motion to quash the complaint; and failure of the accused to interpose the objection constitutes
waiver. Conrado, after he had been convicted by the court a quo, can no longer assail its judgment by raising
191
this issue. Neither can he claim, as he now does, that he was denied the information that he was to be tried for
two (2) separate crimes of rape. The acts complained of, as constituting the offenses, were stated in the 2 June
1982 complaint in ordinary and concise language that any person of common intelligence would be able to
understand and thereby know what acts he was to defend himself against.
2. CRIMINAL LAW; RAPE; COMMITTED WITH CONSPIRACY; ESTABLISHED IN CASE AT BAR.

The imposition on each of the accused of the penalty corresponding to two (2) crimes of rape is proper, because
of the existence of conspiracy. As clearly found by the trial court: "Both accused have, obviously, conspired and
confederated to commit the crime, considering that they entered the bathroom where Rebecca was, together and
at the same time. Accused Fernandez then tied her with a piece of cloth tightly around her neck, while accused
Conrado held her hands placing them behind her body, to prevent her from struggling or resisting. Then after
accused Fernandez had raped Rebecca, accused Conrado raped her. Both accused, thereafter, fled from the
scene of the crime together and at the same time. All these circumstances show beyond shadow of any doubt
conspiracy on the part of both accused, which renders each of them liable for two (2) crimes of rape, . . . ." In a
long line of decided cases, it has been held by this Court that in multiple rape, each defendant is responsible not
only for the rape personally committed by him, but also for the rape committed by the others, because each of
them (accused) cooperated in the commission of the rape perpetrated by the others, by acts without which it
would not have been accomplished.
3. ID.; ID.; ID.; IMPOSITION OF DEATH PENALTY; PROPER. The original death sentence was correctly
imposed pursuant to the provisions of the Revised Penal Code, namely, Article 335 which states that when the
crime of rape is committed by two (2) or more persons, the penalty shall be reclusion perpetua to death, and
Article 63, which provides that when the penalty prescribed is composed of two (2) indivisible penalties (as in
this case) and the offense is attended by an aggravating circumstance, the greater penalty shall be applied.
4. ID., AGGRAVATING CIRCUMSTANCES; IGNOMINY; APPRECIATED IN CASE AT BAR. The trial

court is correct in appreciating the aggravating circumstance of ignominy because of the greater perversity
displayed by the offenders. The testimony of the examining physician that he did not find mud on the victim's
private organ, does not necessarily belie the latter's asseveration that the accused "plastered" (in the words of the
lower court) mud on her private part. It is worthwhile mentioning that the victim was examined and treated by
Dr. Claudio at 3:55 p.m. or about almost two (2) hours after the rape was committed. Given this circumstance,
the absence of mud in the victim's private part when she was examined by the physician, may be attributed to
the possibility that the mud washed or fell off even before the victim left the house for her physical
examination. Moreover, Rebecca's testimony was corroborated by that of Amelita Malong who swore that she
saw mud smeared on Rebecca's private part when she (Amelita) saw Rebecca right after the incident. It is also
difficult to conceive why the offended party, young as she was, and with a chaste reputation, would go to the
extent of fabricating this portion of her testimony notwithstanding the consequent humiliation on her person and
disgrace on her womanhood. We cannot but agree with the trial court's finding that the offense was aggravated
by ignominy. We are of the opinion, however that the word "cruelty" used in the dispositive portion of the
judgment, to describe an alternative aggravating circumstance, is unnecessary. The act of "plastering" mud on
the victim's vagina right after she was raped, is adequately and properly described as "ignominy" rather than
"cruelty or ignominy."
5. CONSTITUTIONAL LAW; DEATH PENALTY REDUCED TO RECLUSION PERPETUA. Since the

original death penalties imposed by the trial court are no longer imposable under the present Constitution and
are reduced to reclusion perpetua, the sentence on appellant Federico Conrado has to be reduced to two (2)
penalties of reclusion perpetua. But the indemnity he has to pay to the victim must be increased to P20,000.00
in line with prevailing jurisprudence.
DECISION
PADILLA, J p:
Before the Court is Federico Conrado's appeal from the decision * of the Court of First Instance (now Regional
Trial Court) of Pangasinan, Branch I, in Criminal Case No. L-2593 entitled, "The People of the Philippines vs.
Melquiades Fernandez, alias 'Moding' and Federico Conrado" convicting him and the other accused of the crime
of rape and sentencing them each to suffer inter alia two (2) death penalties. prLL
The criminal complaint dated 2 June 1982 filed before the trial court, reads as follows:
"That on or about the 13th day of January, 1982, at 2:00 o'clock in the afternoon, at barangay Taloy,
municipality of Malasiqui, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and mutually helping one another, did, then and there, wilfully,
192
unlawfully, and feloniously have sexual intercourse with the undersigned offended party Rebecca M. Soriano, a
virgin and 15 years old, by means of force and intimidation and against the will of the latter." 1
Assisted by counsel, the accused Fernandez and Conrado, uncle and nephew respectively, pleaded not guilty on
arraignment 2 and underwent trial.
Teofilo Malong employed Rebecca Soriano as a househelper since September 1981. Residing in Teofilo's house
were his wife and daughters Amelita and Ma. Theresa. Rebecca Soriano testified that on 13 January 1982 at
about 2:00 o'clock in the afternoon, and after she had just finished taking a bath and still naked, the two (2)
accused, both in short pants, surreptitiously entered the bathroom. To prevent her from making an outcry, a
piece of cloth was tightly tied around her neck, after which she was forcibly laid down. Conrado held her hands
behind her while Fernandez sexually abused her. She declared that, immediately after Fernandez had raped her,
Conrado in turn went on top of her and likewise succeeded in having sexual congress with her against her will.
She added that, thereafter, Fernandez got a handful of mud near the bathroom and placed it on her vagina.
Thereupon, she ran to the upper floor of the house to report the tragic incident to Amelita Malong. 3
During the trial, Amelita Malong declared that in that afternoon of 13 January 1982, she was combing her hair
in her room when she saw the approaching Rebecca, naked with smeared mud on her lower private part and a
piece of cloth around her neck. She testified that after she was told by Rebecca about the incident, they reported
the same to her father, Teofilo, who was in his store. She also declared that she knew both the accused because
Fernandez used to spray their mango trees while Conrado sold to them a dog sometime in November 1981. 4
Teofilo Malong likewise testified for the prosecution. He stated that upon being informed that his housemaid
Rebecca was raped by the accused, he and his family, together with Rebecca, proceeded to the office of the INP
Police Station of Malasiqui to report the crime and had Rebecca physically examined by Dr. Wilfredo Claudio
of the San Carlos General Hospital in that same afternoon. He further said that the following day, or on 14
January 1982, he, Amelita and Rebecca gave their written statements to the police. 5
Submitted as evidence for the prosecution was the "Medico-Legal Certificate" issued by Dr. Claudio, indicating
his findings of "hymenal lacerations at 6, 10, 3 o'clock positions and one dead sperm cell seen on a slide
examined." 6
In defense, the two (2) accused denied any involvement in the offense, both claiming they were nowhere at the
scene of the crime when it was committed. llcd
More particularly, Fernandez claimed he was in his house at Taloy, Malasiqui weaving baskets when the
incident happened. He admitted having been formerly employed by Teofilo for about two (2) years to spray his
mango trees and stated that during the period he was hired as such, he lived alone in a small hut constructed
under a mango tree. 7 Conrado, on the other hand, alleged that when the crime was committed, he was at
Malimpuec, Malasiqui as he was hired to spray the mango trees of a certain Mr. Overo. Bo. Malimpuec is his
hometown but he admitted that he used to go to Bo. Taloy, prior to the incident, as his parents-in-law lived
there. 8
In the trial court's decision holding that the guilt of both accused had been established beyond shadow of any
doubt, the following observations and conclusions are made:
"As already stated, the defense of both accused is alibi, which is not even corroborated by a single defense
witness. It is well-settled rule that alibi is the weakest defense that can be resorted to by an accused, as it is easy
to concoct or fabricate. . . .
". . ., the alibi of both accused can not prevail over their positive identification by the prosecution witnesses
(especially by complainant victim of rape, Rebecca Soriano) as the perpetrators of the crime charged, they
having testified in a clear, straightforward, positive, truthful, and convincing manner, with no motive to
fabricate this serious charge of rape or falsify the truth. The alibi of both accused can not also be given credence
or weight, considering that at the time of the rape, accused Melquiades Fernandez was in his house at Bo. Taloy,
which is just 150 meters away from the house of the Malongs, where Rebecca Soriano was raped; and accused
Federico Conrado was at Bo. Malimpuec, which is only 9 kms. away from Bo. Taloy, where Rebecca was raped
that afternoon of January 13, 1982. The evidence disclose that said distance of 9 kms. can be negotiated in only
about 30 minutes by motorized vehicle, on good road connecting the 2 barrios. cdphil
193
xxx xxx xxx
"The clear, positive, straightforward, and convincing testimony of rape victim Rebecca Soriano, as well as her
immediate reporting of the incident to the police authorities, just 30 minutes or so after she was raped that
afternoon of January 13, 1982 and her giving of a sworn statement (Exh. A) on January 14, 1982 just the day
after she was raped) which was corroborated by the statements on the same date (January 14, 1982) by
prosecution witnesses Amelita Malong and Teofilo Malong, more than convinces and satisfies this Court that
the crime charged was, in truth and fact, perpetrated by both accused. 9
3. THE LOWER COURT ERRED IN SENTENCING EACH OF THE ACCUSED-APPELLANTS 'TO

SUFFER TWO (2) PENALTIES OF DEATH.'" 11
In the light, however, of the 1987 Constitution, specifically, Section 19(1), Article III thereof, under which a
death penalty already imposed is reduced to reclusion perpetua, Fernandez withdrew his appeal. 12 The lone
appellant therefore is Conrado who insists on his appeal, notwithstanding the advice of his counsel de officio to
discontinue the appeal allegedly on the ground that "it has become moot and academic." 13
This Court nonetheless proceeded to consider accused-appellant's arguments for the sake of verifying the
correctness of the sentence imposed. We find no merit in the appeal.
Hence, the judgment of conviction, now the object of this appeal, the dispositive part of which reads as follows:
First Assignment of Error
"WHEREFORE, the Court finds each of the accused MELQUIADES FERNANDEZ, alias 'Moding' and
FEDERICO CONRADO, guilty beyond reasonable doubt of two crimes of rape, aggravated by cruelty or
ignominy, and, pursuant to law, hereby sentences each of them to suffer two (2) penalties of death, to indemnify
the aggrieved party, Rebecca M. Soriano, in the amount of P12,000.00 as moral damages, without subsidiary
imprisonment in case of insolvency, and to pay the costs." 10
"1. THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANTS FOR TWO (2) CRIMES
OF RAPE.
The trial court is accused of violating the rule against duplicity of offenses in that, the accused were convicted
for two (2) crimes of rape even when under the criminal complaint against them, there is only one (1) crime of
rape alleged. The rule invoked in Section 13, Rule 110 of the Rules of Court which states that there should be
only one (1) offense charged in a criminal complaint or information, the purpose of which is to afford the
defendant a necessary knowledge of the charge so that he may not be confused in his defense. But it is likewise
the rule that if ever duplicity of offenses is committed, the same constitutes a ground for a motion to quash the
complaint; and failure of the accused to interpose the objection constitutes waiver. 14 Conrado, after he had
been convicted by the court a quo, can no longer assail its judgment by raising this issue. Neither can he claim,
as he now does, that he was denied the information that he was to be tried for two (2) separate crimes of rape.
The acts complained of, as constituting the offenses, were stated in the 2 June 1982 complaint in ordinary and
concise language that any person of common intelligence would be able to understand and thereby know what
acts he was to defend himself against. LLpr
2. THE LOWER COURT ERRED IN HOLDING THAT THE COMMISSION OF THE RAPE WAS
ATTENDED BY THE AGGRAVATING CIRCUMSTANCE OF CRUELTY OR IGNOMINY.
The imposition on each of the accused of the penalty corresponding to two (2) crimes of rape is proper, because
of the existence of conspiracy. As clearly found by the trial court:
In an effort to reduce the imposed penalty of death to reclusion perpetua (life imprisonment), without
disproving the charges against them, the two (2) accused assigned the following errors:
194
"Both accused have, obviously, conspired and confederated to commit the crime, considering that they entered
the bathroom where Rebecca was, together and at the same time. Accused Fernandez then tied her with a piece
of cloth tightly around her neck, while accused Conrado held her hands placing them behind her body, to
prevent her from struggling or resisting. Then after accused Fernandez had raped Rebecca, accused Conrado
raped her. Both accused, thereafter, fled from the scene of the crime together and at the same time. All these
circumstances show beyond shadow of any doubt conspiracy on the part of both accused, which renders each of
them liable for two (2) crimes of rape, . . . ." 15
In a long line of decided cases, it has been held by this Court that in multiple rape, each defendant is responsible
not only for the rape personally committed by him, but also for the rape committed by the others, because each
of them (accused) cooperated in the commission of the rape perpetrated by the others, by acts without which it
would not have been accomplished. 16
Second Assignment of Error

The trial court is correct in appreciating the aggravating circumstance of ignominy because of the greater
perversity displayed by the offenders. The testimony of the examining physician that he did not find mud on the
victim's private organ, does not necessarily belie the latter's asseveration that the accused "plastered" (in the
words of the lower court) mud on her private part. It is worthwhile mentioning that the victim was examined
and treated by Dr. Claudio at 3:55 p.m. or about almost two (2) hours after the rape was committed. 17 Given
this circumstance, the absence of mud in the victim's private part when she was examined by the physician, may
be attributed to the possibility that the mud washed or fell off even before the victim left the house for her
physical examination. Moreover, Rebecca's testimony was corroborated by that of Amelita Malong who swore
that she saw mud smeared on Rebecca's private part when she (Amelita) saw Rebecca right after the incident. It
is also difficult to conceive why the offended party, young as she was, and with a chaste reputation, would go to
the extent of fabricating this portion of her testimony notwithstanding the consequent humiliation on her person
and disgrace on her womanhood. We cannot but agree with the trial court's finding that the offense was
aggravated by ignominy. We are of the opinion, however that the word "cruelty" used in the dispositive portion
of the judgment, to describe an alternative aggravating circumstance, is unnecessary. The act of "plastering"
mud on the victim's vagina right after she was raped, is adequately and properly described as "ignominy" rather
than "cruelty or ignominy." LibLex
Third Assignment of Error
Lastly, the original death sentence was correctly imposed pursuant to the provisions of the Revised Penal Code,
namely, Article 335 which states that when the crime of rape is committed by two (2) or more persons, the
penalty shall be reclusion perpetua to death, and Article 63, which provides that when the penalty prescribed is
composed of two (2) indivisible penalties (as in this case) and the offense is attended by an aggravating
circumstance, the greater penalty shall be applied.
However, since the original death penalties imposed by the trial court are no longer imposable under the present
Constitution and are reduced to reclusion perpetua, the sentence on appellant Federico Conrado has to be
reduced to two (2) penalties of reclusion perpetua. 18 But the indemnity he has to pay to the victim must be
increased to P20,000.00 in line with prevailing jurisprudence.
WHEREFORE, the appealed judgment, as above modified, is AFFIRMED. With costs against the accusedappellant Federico Conrado.
SO ORDERED.
Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur.
||| (People v. Fernandez, G.R. No. 62116, [March 22, 1990], 262 PHIL 558-567)
EN BANC
[G.R. No. L-19238. July 26, 1966.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARINCHO CASTILLO, ET AL., defendants,
CARLOS CASTILLO, defendant-appellant.
Sycip, Salazar, Luna and Associates for defendant-appellant.
Solicitor General for plaintiff-appellee.
195
The prosecution evidence shows the following facts:

SYLLABUS
1. CRIMINAL LAW; CONSPIRACY; ATTACK BY SON WHILE THE FATHER WAS TALKING WITH THE
VICTIM; CASE AT BAR. No cone defendant's son attacked the victim from behind while appellant was
talking with the latter, this is not sufficient proof of conspiracy between father and son, it appearing firstly, that
the incident in which the son was slapped by the victim occurred some three months before, and secondly, that
the fatal incident took place hardly twenty meters away from appellant house, which would indicate that,
instead of appellant and his son going out in search of the deceased, it was the latter who had conspiracy was
proved between appellant and his son, who fatally hacked the victim, because while it is true that the to or who
had passed by the street near their house on the fatal day.
2. ID.; PRINCIPAL BY INDUCEMENT; WHAT UTTERANCES ARE NECESSARY; CASE AT BAR. In

determining whether the utterance of an accused are sufficient to make him guilty as co-principal by
inducement, it must appear that the inducement was of such nature and was made in such a way as to become
the determining cause of the crime and that such inducement was uttered with the intention of producing the
result. (People vs. Caimbre, et al., 110 Phil., 370.) In the present case, although appellant was armed with a
revolver while talking with the deceased, the firearm was not pointed at the latter, and he uttered the words
"You kill him" only after his son had fatally boloed the deceased on the head. The alleged inducement to
commit the crime was, therefore, no longer necessary to induce the assailant to commit the crime.
DECISION
DIZON, J p:
In an information filed with the Court of First Instance of Oriental Mindoro Carlos Castillo and his son,
Marincho, were charged with the crime of murder. After trial upon their plea of not guilty, the court found them
guilty as charged and sentenced them accordingly. Only Carlos Castillo appealed.
Sometime in the month of October 1959, Marincho Castillo was slapped in the face by the now deceased Juan
Vargas as a result of an altercation which arose between them because a cow belonging to the former had gone
astray and destroyed some plants of the latter. Unable to retaliate at that time, Marincho merely uttered these
words; "You, Manong Juan will have your own day"
About 5:30 o'clock in the afternoon of December 28, 1959, in barrio Malibago, municipality of Pola, Oriental
Mindoro, while appellant, holding a gun in his right hand, was talking face to face with Juan Vargas, Marincho
came from behind and hacked the latter on the head. As Marincho was about to strike the victim a second time,
appellant said: "You kill him"
In the evening of the same day, Marincho, accompanied by appellant, surrendered himself to the authorities.
A post-mortem examination conducted by the municipal health officer of Pola revealed that the victim died
instantaneously as a result of severe hemorrhage due to multiple wounds.
With the testimony of Jose Ilagan the prosecution attempted to prove conspiracy between appellant and his son.
According to said witness, on the afternoon in question he saw both walking very fast towards the poblacion,
appellant with a revolver in his hand, and his son carrying a bolo, both presumably gunning for Juan Vargas.
Very little credibility can be given to this testimony, firstly, because the incident between Vargas and Marincho
had taken place in the month of October 1959, while the fatal incident took place on December 28 of the same
year; secondly, because the fatal incident took place hardly twenty meters away from appellant's house a
circumstance which would seem to indicate that, instead of appellant and his son going out in search of Vargas,
it was the latter who had gone or who had passed by the street near appellant's house on the fatal day.
196
The last question to be resolved is whether appellant can be found guilty of murder by inducement simply
because after his son had already fatally boloed Vargas and was about to strike the latter a second time,
appellant shouted: "You kill him". The present case is very similar, if not on all fours, with People vs. Caimbre
et al., G.R. No. L-12087 decided on December 29, 1960 where practically the same words were uttered by one
of the defendants but only after the actual assailant had already boloed his victim several times. It was there
held that in determining whether the utterances of an accused are sufficient to make him guilty as co-principal
by inducement, it must appear that the inducement was of such nature and was made in such a way as to
become the determining cause of the crime and that such inducement was uttered with the intention of
producing the result. In this case appellant was, of course, armed with a revolver while talking with the
deceased Vargas, but the firearm was not pointed at the latter. Then he is alleged to have uttered the words "You
kill him" only after his son had already fatally boloed Vargas on the head. It appears, therefore, that the alleged
inducement to commit the crime was no longer necessary to induce the assailant to commit the crime. Upon the
principle thus laid down in the Caimbre case which was merely a reiteration of the same ruling previously
laid down in People vs. Alvarez, G.R. No. L-10650, July 26, 1960; People vs. Canare, et al., G.R. No. L-10677,
September 30, 1959; People vs. Omini, 61 Phil., 609; and United States vs. Indanan, 24 Phil., 203, We are
constrained to hold that appellant's guilt has not been established beyond reasonable doubt.
WHEREFORE, the appealed judgment is reversed and appellant is acquitted, with one-half of the costs de
oficio.
THIRD DIVISION
[G.R. Nos. 133527-28. December 13, 1999.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JEANETTE (GINETTE) YANSON-DUMANCAS,

POL. COL. NICOLAS TORRES, POL. INSP. ADONIS ABETO, POL. OFFICER MARIO LAMIS Y
FERNANDEZ, DOMINADOR GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO R.
FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO, CESAR PECHA, CHARLES DUMANCAS
(Acquitted), POL. OFFICER JOSE PAHAYUPAN (Acquitted), VICENTE CANUDAY, JR. (Acquitted),
accused,
JEANETTE (GINETTE) YANSON-DUMANCAS, POL. COL. NICOLAS TORRES, POL. INSP. ADONIS
ABETO, POL. OFFICER MARIO LAMIS Y FERNANDEZ, DOMINADOR GEROCHE Y MAHUSAY,
JAIME GARGALLANO, ROLANDO R. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO,
CESAR PECHA, accused-appellants.

Concepcion, C.J., J.B.L. Reyes, Barrera, Regala, Makalintal, J.P. Bengzon, Zaldivar, Sanchez and Castro, JJ.,
concur.
Archie S. Baribar for accused for Dominador Geroche.
||| (People v. Castillo, G.R. No. L-19238, [July 26, 1966], 124 PHIL 69-72)
Rolando M. Antiquiera and Roem J. Arbolado for accused Adonis C. Abeto.
Estelito P. Mendoza, Amado A. Parreno, Jr. and Reynaldo Remitio for accused Jeanette Yanson-Dumancas.
Poblador Bautista & Reyes and Luis V. Sison for accused Nicolas Torres.
197
Emmanuel G. Vinco for accused Cesar Pecha.
Rosslyn T. Morana for accused PO3 Mario Lamis, Jaime Gargallano, Rolando Fernandez, Edwin Divinagracia
and Teody Delgado.
SYNOPSIS
Of the 13 accused charged with Kidnapping for Ransom with Murder of one Rufino Gargar, Jr., 3 accused were
acquitted, 9 were convicted as principals and 1 accused was convicted as accessory.
On appeal, the Supreme Court acquitted 3 more accused, ruling: (1) the remark of accused Jeanette to "take care
of the two" did not constitute the words of command which may be considered sufficient basis to convict her as
principal by inducement; (2) accused Police Inspector Abeto's presence at the scene of the crime in order to
serve the search warrant and to interrogate the two victims did not by itself establish conspiracy to commit the
crime. The Court considered accused Abeto's constitutional right to the presumption of innocence coupled with
the presumption of regularity in the performance of official functions; (3) accused Col. Torres passed away
during the pendency of this appeal. His death extinguished his criminal liability and the civil liability solely
based thereon.
uncontrollable fear upon the other accused-appellants. From the factual findings of the trial court, it is patent
that the plan to abduct and liquidate the victims was hatched on August 5, 1992 without Jeanette's involvement
or participation whatsoever. The record is entirely bereft of any evidence to show that Jeanette directly forced
the participants of the said meeting to come up with such plan, by either using irresistible force or causing
uncontrollable fear.
2. ID.; ID.; ID.; DIRECTLY INDUCING ANOTHER TO COMMIT A CRIME; WAYS; CASE AT BAR.
Likewise, there are 2 ways of directly inducing another to commit a crime, namely: (i) by giving a price, or
offering reward or promise, and (ii) by using words of command. The Court finds no evidence, as did the trial
court, to show that Jeanette offered any price, reward, or promise to the rest of accused-appellants should they
abduct and later kill the victims in this case. If at all, the prosecution witness mentioned the name of Ricardo
Yanson as having lent money to accused-appellant Col. Torres to be used for paying the latter's debts or
obligations. But definitely, no money ever came from Jeanette herself. The trial court's surmise that the money
delivered by Ricardo Yanson to the group was with the knowledge and approval of Jeanette is completely
baseless.
3. ID.; ID.; ID.; PRINCIPAL BY INDUCEMENT; REQUISITES FOR CONVICTION. In order that a
person may be convicted as principal by inducement, the following must be present: (1) the inducement be
made with the intention of procuring the commission of the crime, and (2) such inducement be the determining
cause of the commission by the material executor (U.S. vs. Indanan, 24 Phil. 203 [1913]). To constitute
inducement, there must exist on the part of the inducer the most positive resolution and the most persistent
effort to secure the commission of the crime, together with the presentation to the person induced of the very
strongest kind of temptation to commit the crime.
The Supreme Court affirmed the trial court's conviction of the other accused, applying the well settled rule that
factual findings of the trial court on the credibility of witnesses command great respect.
SYLLABUS
1. CRIMINAL LAW; CRIMINAL LIABILITY; PRINCIPALS; WAYS OF DIRECTLY FORCING ANOTHER

TO COMMIT A CRIME; CASE AT BAR. There are 2 ways of directly forcing another to commit a crime,
namely: (i) by using irresistible force, or (ii) by causing uncontrollable fear. Upon review of the testimony of all
the witnesses of the prosecution, we find nothing to conclude that Jeanette used irresistible force or caused
4. ID.; ID.; ID.; REMARK OF APPELLANT TO "TAKE CARE OF THE TWO" DOES NOT CONSTITUTE
INDUCEMENT. By the foregoing standards, the remark of Jeanette to "take care of the two" does not
constitute the command required by law to justify a finding that she is guilty as a principal by inducement. As
we held in U.S. vs. Indanan, supra, "a chance word spoken without reflection, a wrong appreciation of a
situation, an ironical phrase, a thoughtless act, may give birth to a thought of, or even a resolution to crime in
the mind of one for some independent reason predisposed thereto without the one who spoke the word or
performed the act having any expectation that his suggestion would be followed or any real intention that it
produce the result. In such case, while the expression was imprudent and the results of it grave in the extreme,
he (the one who spoke the word or performed the act) would not be guilty of the crime committed."
198
5. ID.; ID.; ID.; INDUCEMENT MUST PRECEDE COMMISSION OF CRIME. The utterance which was
supposedly the act of inducement, should precede the commission of the crime itself (People vs. Castillo, 17
SCRA 721). In the case at bar, the abduction, which is an essential element of the crime charged (kidnapping for
ransom with murder) has already taken place when Jeanette allegedly told accused-appellant Geroche to "take
care of the two." Said utterance could, therefore, not have been the inducement to commit the crime charged in
this case.
6. ID.; ID.; EXTINGUISHED BY DEATH. The death of accused-appellant Torres extinguished his criminal
liability and the civil liability solely based thereon. Accordingly, the appeal of accused-appellant Torres is
forthwith dismissed, such dismissal having the force and effect of an acquittal.
7. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF FACT OF TRIAL

COURT GENERALLY ACCORDED GREAT WEIGHT. We find no cogent reason to depart from the well
settled rule that when it comes to the issue of credibility of witnesses, the factual findings of the trial court is
generally accorded great weight (People vs. Taedo (266 SCRA 34 [1997]) unless the trial judge plainly
overlooked certain facts of substance and value which, if considered, might affect the result of the case, his
assessment on credibility must be respected (People vs. Ramirez, 266 SCRA 335 [1997]). HESCcA
8. ID.; ID.; ID.; NOT ADVERSELY AFFECTED BY DISCREPANCIES BETWEEN STATEMENTS OF

AFFIANT IN AFFIDAVIT AND THOSE MADE ON WITNESS STAND. Discrepancies between the
statements of the affiant in his affidavit and those made by him on the witness stand do not necessarily discredit
him since ex-parte affidavits are generally incomplete affidavits are generally subordinated in importance to
open court declarations (People vs. Padao, 267 SCRA 64 [1997]). A contradiction between a witness' affidavit
and his testimony in open court may almost be explained by the fact that, being taken ex parte, an affidavit is
often incomplete and inaccurate, sometimes from partial suggestions, and sometimes from the want of
suggestions and inquiries (Sumalpong vs. Court of Appeals, 268 SCRA 764 [1997]).
9. ID.; ID.; ID.; TESTIMONY OF WITNESS MAY BE DISREGARDED IN PART. In his brief, accusedappellant Geroche cites Grandeza's failure to identify one of their co-accused, Charles Dumancas, in open court,
and the variance on the alleged instructions given by Jeanette, and the failure by Grandeza to mention the
supposed meetings in his previous affidavits, as grounds to totally disregard Grandeza's entire testimony for
being unworthy of credence. Indirectly, accused-appellant Geroche wants this Court to apply the maxim falsus
in uno, falsus in omnibus. In this regard, we held in People vs. Pacis (130 SCRA 540 [1984]): The maxim of
"falsus in uno falsus in omnibus," however, is not a positive rule of law. Neither is it an inflexible one of
universal application. If a part of a witness' testimony is found true, it cannot be disregarded entirely. The
testimony of a witness may be believed in part and disbelieved in part.
10. ID.; ID.; ID; ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. Alibi cannot prevail
over positive identification (People vs. Garma, 271 SCRA 517 [1997]). Being easy to fabricate and difficult to
disprove, alibi cannot prevail over and is worthless in the face of the positive identification of the accusedappellant (People vs. Datun, 272 SCRA 380 [1997]).
11. CRIMINAL LAW; CRIMINAL LIABILITY; ACCESSORY; BURYING CORPSES OF VICTIMS OF

VIOLENCE. As to accused-appellant Cesar Pecha's case, the Court finds it difficult to believe that he had no
knowledge that the 2 victims he was burying were victims of violence. The deceased were surely bloodied from
their gunshot wounds and were in fact still handcuffed when exhumed from their shallow grave. It becomes
almost impossible for accused-appellant Pecha not to at least, entertain doubts as to the absence of foul play in
this case. He is thus guilty as an accessory to the crime committed under Paragraph 2, Article 19, of the Revised
Penal Code.
12. ID.; KIDNAPPING FOR RANSOM; PENALTY. Under Article 267 of the Revised Penal Code, when
the crime of kidnapping is committed for the purpose of extorting ransom from the victims, the penalty is death.
However, since the crime was committed before the re-imposition of the death penalty, only reclusion perpetua
is imposable upon all the accused-appellant found guilty of the crime as principals. Accused-appellant Pecha's
penalty, as accessory is 2 degrees lower, which is prision mayor. Applying the indeterminate sentence law, the
penalty to be imposed is 6 months and 1 day (the minimum of prision correccional), as minimum, up to 8 years
(within the minimum period of prision mayor), as the maximum.
13. CIVIL LAW; DAMAGES; AMOUNTS RECOVERABLE BY HEIRS OF VICTIMS OF VIOLENCE.

On the civil liabilities, accused-appellants who are herein convicted of the crime as principals are held solidarily
199
liable for the amount of P50,000.00 to the heirs of each of the victims, as indemnity for their death. The amount
of P50,000.00, each, by way of moral damages and P25,000.00, each, as exemplary damages are already
deemed sufficient. Accused-appellant Cesar Pecha is held liable for one-tenth of the above amounts. The
appealed judgment is silent as to any justification for the other damages awarded and can therefore not be
sustained on appeal.
DECISION
MELO, J p:
Accused-appellants were charged with Kidnapping for Ransom with Murder under two Informations which
pertinently read:
CRIMINAL CASE NO. 94-15562
The undersigned hereby accuses JEANETTE YANSON-DUMANCAS, CHARLES DUMANCAS, (BOTH AS

PRINCIPALS BY INDUCTION), POLICE COL. NICOLAS M. TORRES (AS PRINCIPAL BY INDUCTION
AND BY DIRECT AND/OR INDISPENSABLE COOPERATION), POLICE INSPECTOR ADONIS C.
ABETO, POLICE OFFICERS MARIO LAMIS Y FERNANDEZ, JOSE PAHAYUPAN, VICENTE
CANUDAY, JR., DOMINADOR GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO R.
FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO, ALL AS PRINCIPALS BY
PARTICIPATION, CESAR PECHA, and EDGAR HILADO, BOTH AS ACCESSORIES, of the crime of
KIDNAPPING FOR RANSOM WITH MURDER, committed as follows:
That during the period beginning in the late morning of August 6, 1992 and ending the late evening of the
following day in Sitio Pedrosa, Barangay Alijes, Bacolod City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and concurring in a common criminal
intent and execution thereof with one another, save for the accessories, for the purpose of extracting or extorting
the sum of P353,000.00, did, then and there willfully, unlawfully, and feloniously, to wit: prcd
Acting upon the inducement of spouses Jeanette Yanson-Dumancas and Charles Dumancas, under the direction
cooperation and undue influence, exerted by P/Col. Nicolas M. Torres, taking advantage of his position as the
Station Commander of the Philippine National Police, Bacolod City Station, with the direct participation and
cooperation of Police Inspector Adonis C. Abeto, other police officers Vicente Canuday, Jr., Jose Pahayupan,
Mario Lamis, civilian (police) agents Rolando R. Fernandez, Edwin Divinagracia, Teody Delgado, Jaime
Gargallano, also taking advantage of their respective positions, and Dominador Geroche, concurring and
affirming in the said criminal design, with the use of motor vehicle abduct, kidnap and detain one RUFINO
GARGAR, JR. and shortly thereafter at around 11 o'clock in the evening of August 7, 1993 (1992), failing in
their aforesaid common purpose to extort money and in furtherance of said conspiracy, with evident
premeditation and treachery nocturnity and the use of motor vehicle, did then and there shot and kill the said
victim, while being handcuffed and blindfolded; that accused Cesar Pecha and Edgar Hilado, with knowledge
that said Gargar was victim of violence, did then and there secretly bury the corpse in a makeshift shallow grave
or the purpose of concealing the crime of murder in order to prevent its discovery for a fee of P500.00 each;
aforesaid act or acts has caused damage and prejudice to the heirs of said victim, to wit:
P50,000.00 as indemnity for death;
50,000.00 actual damages;
300,000.00 compensatory damages (lost income);
100,000.00 moral damages;
50,000.00 exemplary damages. LibLex
CONTRARY TO LAW.
200
(pp. 1-3, Record Vol. I)

P50,000.00 as indemnity for death; cdasia
CRIMINAL CASE NO. 94-15563
50,000.00 actual damages;
The undersigned hereby accused JEANETTE YANSON-DUMANCAS, CHARLES DUMANCAS (BOTH AS
PRINCIPALS BY INDUCTION), POLICE COL. NICOLAS M. TORRES (AS PRINCIPAL BY INDUCTION
AND BY DIRECTION AND/OR INDISPENSABLE COOPERATION), POLICE INSPECTOR ADONIS C.
ABETO, POLICE OFFICERS MARIO LAMIS Y FERNANDEZ, JOSE PAHAYUPAN, VICENTE
CANUDAY, JR., DOMINADOR GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO B.
FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO, ALL AS PRINCIPALS BY
PARTICIPATION, CESAR PECHA and EDGAR HILADO, BOTH AS ACCESSORIES, of the crime of
KIDNAPPING FOR RANSOM WITH MURDER, committed as follows:
300,000.00 compensatory damages (lost income);
100,000.00 moral damages;
P50,000.00 exemplary damages.

That during the period beginning in the late morning of August 6, 1992 and ending the late evening of the
following day in Sitio Pedrosa, Barangay Alijes, Bacolod City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and concurring in a common criminal
intent and execution thereof with one another, save for the accessories, for the purpose of extracting or extorting
the sum of P353,000.00, did, then and there willfully, unlawfully, and feloniously, to wit:
CONTRARY TO LAW.
(pp. 1-3, Record Vol. I-A)

Acting upon the inducement of spouse Jeanette Yanson-Dumancas and Charles Dumancas, under the direction,
cooperation and undue influence, exerted by P/Col. Nicolas M. Torres, taking advantage of his position as the
Station Commander of the Philippine National Police, Bacolod City Station, with the direct participation and
cooperation of Police Inspector Adonis C. Abeto, other police officers Vicente Canuday, Jr., Jose Pahayupan,
Mario Lamis, civilian (police) agents Rolando R. Fernandez, Edwin Divinagracia, Teody Delgado, Jaime
Gargallano, also taking advantage of their respective positions, and Dominador Geroche, concurring and
affirming in the said criminal design, with the use of motor vehicle abduct, kidnap and detain one DANILO
LUMANGYAO and shortly thereafter at around 11 o'clock in the evening of August 7, 1993 (1992), failing in
their aforesaid common purpose to extort money and in furtherance of said conspiracy, with evident
premeditation and treachery nocturnity and the use of motor vehicle, did then and there shot and kill the said
victim, while being handcuffed and blindfolded, that accused CESAR PECHA and EDGAR HILADO, with
knowledge that said Lumangyao was victim of violence, did then and there secretly bury the corpse in a
makeshift shallow grave for the purpose of concealing the crime of murder in order to prevent its discovery for
a fee of P500.00 each; aforesaid act or acts has caused damage and prejudice to the heirs of said victim, to wit:
All thirteen accused (excluding Edgar Hilado, who was then still at large) entered pleas of NOT GUILTY upon
arraignment conducted on February 14, 1994 (per Certificates of Arraignment, Records Vol. I-A, pp. 372-384).
After a joint trial (excluding accused Edgar Hilado, who upon arraignment on April 11, 1994, pleaded NOT
GUILTY [Record, Vol. II, p. 866], was tried separately), judgment was rendered acquitting Charles Dumancas,
Police Officers Jose Pahayupan and Vicente Canuday, Jr., but convicting the rest of the accused for the crime
charged, to wit:
Wherefore, finding the first nine (9) Accused herein
201
1. JEANNETTE (GINNETTE) YANSON-DUMANCAS
2. POL. COL. NICOLAS TORRES LLjur
3. POL. INSP. ADONIS ABETO
4. POL. OFFICER MARIO LAMIS Y FERNANDEZ
5. DOMINADOR GEROCHE Y MAHUSAY
6. JAIME GARGALLANO
7. ROLANDO R. FERNANDEZ
1. In CRIMINAL CASE NO. 94-15562, each of the Accused charged as principal is hereby sentenced to suffer
the penalty of RECLUSION PERPETUA, with all the accessories of the law; to indemnify, jointly and
severally, the Heirs of Rufino Gargar Jr. in the amount of P50,000.00 as indemnity for death; P25,000.00 as
actual damages; P300,000.00 for compensatory damages (lost income); P100,000.00 in moral damages and
P50,000.00 as exemplary damages; and to pay the cost. Accused CESAR PECHA who is charged as an
accessory is hereby sentenced to suffer the penalty of imprisonment of two (2) years four (4) months and one
(1) day of Prision Correccional as minimum to eight years and one day of Prision Mayor as maximum and to
pay one-tenth of the cost; cdtai
2. In CRIMINAL CASE NO. 94-15563, each of the Accused charged as principal is hereby sentenced to suffer
the penalty of Reclusion Perpetua, with all the accessories of the law, indemnify jointly and severally, the Heirs
of DANILO LUMANGYAO in the amount of P50,000.00 as indemnity for death; P25,000.00 as actual
damages; P100,000.00 as compensatory damages (lost income); P100,000.00 as moral damages; P50,000.00 as
exemplary damages; and to pay the cost. Accused CESAR PECHA who is charged as an accessory is hereby
sentenced to suffer the penalty of imprisonment of two (2) years four (4) months and one (1) day of prision
correccional as minimum to eight (8) years and one (1) day of Prision Mayor as maximum and to pay one-tenth
of the cost.
Accused CHARLES DUMANCAS, Police Officers JOSE PAHAYUPAN and VICENTE CANUDAY JR. are
hereby Acquitted of the crime charged for failure of the prosecution to prove their guilt beyond reasonable
doubt, with cost de officio.
8. EDWIN DIVINAGRACIA
SO ORDERED.
9. TEODY DELGADO and
(pp. 272-273, Rollo.) LLpr
10. CESAR PECHA
GUILTY BEYOND REASONABLE DOUBT AS PRINCIPALS and CESAR PECHA as accessory in the two
(2) informations filed in these cases, JUDGMENT is hereby rendered against them, as follows:
All ten accused filed their respective notices of appeal, and are now before us on review. After going through
the voluminous record of the case, the Court adopts the following summary of facts by the court a quo, to wit:
February 20, 1992
202
Jeanette Yanson Dumancas was swindled in a fake gold bar transaction losing P352,000 to Danilo Lumangyao
and his cohort.
4:30 P.M. August 5, 1992
10:30 A.M. August 5, 1992 present in the house of Rolando Fernandez were:
The group of:
a) Dominador Geroche
b) Rolando Fernandez
b) Mario Lamis
c) Jaime Gargallano
c) Rolando Fernandez
d) Edwin Divinagracia
d) Jaime Gargallano
e) Teody Delgado
e) Edwin Divinagracia
f) Mario Lamis and
f) Teody Delgado
g) Moises Grandeza LLpr
g) Moises Grandeza
On this occasion Mario Lamis brought out the plan to abduct Danilo Lumangyao and Rufino Gargar, Jr. because
they swindled the Dumancas family.
went to the office of Col. Nicolas Torres at PNP Headquarters where they met the colonel who told them that if
you find these two people (referring to Lumangyao and Gargar) to bring and hide them at Dragon Lodge Motel.
203
8:30 A.M., August 6, 1992
f) Mario Lamis
State witness Moises Grandeza went to the house of Helen Tortocion to invite Danilo Lumangyao and Rufino
Gargar Jr. to "Tinolahan Eatery" at Shopping Center Terminal but found only Gargar Jr. as Lumangyao went to
the house of a certain Bardot at BBB Avenue, this City.
Then a) Fernandez b) Geroche and c) Lamis entered "Tinulahan" and handcuffed Lumangyao and Gargar.
Waiting in the red Toyota Land Cruiser (Plate No. 689) were:
Moises Grandeza together with Gargar Jr. proceeded to the house of Bardot where they found Lumangyao and
thereafter the three of them went to "Tinolahan Eatery". prcd
9:00-10:00 A.M. August 6, 1992
The three arrived at "Tinulahan Eatery". Waiting for them were:
b) Jaime Gargallano
a) Gargallano
b) Divinagracia; and
c) Delgado cdll
10:30 A.M. August 6, 1992
Lumangyao and Gargar were brought to the Office of Jeanette at Ceres Compound on board red toyota land
cruiser by:
c) Edwin Divinagracia
a) Moises Grandeza
d) Rolando Fernandez
b) Gargallano
e) Teody Delgado; and
c) Lamis
204
d) Geroche
c) Canuday
e) Divinagracia
arrived and investigated the two victims regarding the whereabouts of the gold bar and the two replied that it
was with Helen Tortocion.
f) Delgado, and
4:00 P.M. August 6, 1992
g) Fernandez
a) Moises Grandeza
It was there that a) Divinagracia and b) Fernandez manhandled Lumangyao and Gargar. Jeanette then
investigated the two victims on the whereabouts of the money that they swindled from her and the two
answered that it was already spent. cdtai
b) Fernandez, and
c) Geroche cdasia
It was then that Jeanette ordered Doming (Geroche) to take care of the two (Lumangyao and Gargar).
3:00 P.M. August 6, 1992
went to the office of Col. Torres to inform him that Lumangyao and Gargar were already captured. So Col.
Torres ordered them to keep the two victims so that nobody would see them. After receiving this instructions
they went back to Dragon Lodge. Meanwhile, Geroche again interrogated the victims on where the money was
if there was still any let and Geroche received the same negative reply.
From Ceres Compound and while the group, together with the two victims, were already at Dragon Lodge
Motel, thereafter,
Past 6:00 p.m. August 6, 1992
a) Abeto
The group, with the two captives transferred to D' Hacienda Motel.
b) Pahayupan, and
9:00 P.M. August 6, 1992
205
At D' Hacienda Motel, Jeanette and Charles Dumancas, together with Rose Ines arrived. Jeanette and Rose Ines
investigated the victims where they kept the money that they swindled and the two gave the same reply that it
was already gone. Jeanette then reiterated her order to Geroche to take care of the two.
4:30 P.M. August 7, 1992
1) Canuday
9:30 P.M. August 6, 1992
2) Abeto
The group transferred to Moonlight Inn Motel.
3) Dudero
3:00 A.M. August 7, 1992
4) Lesaca, and
The group transferred again to Casamel Lodge Motel.
5) Arollado
10:00 A.M. August 7, 1992
searched the residence of Helen Tortocion for the gold dust and simulated gold bar per search warrant 014-92
(Exh. "D") but the search was fruitless.
The group returned to D' Hacienda Motel and it was there that the plan was pursued to liquidate the two victims
at 12:00 midnight.
7:30 P.M. August 7, 1992
The persons who conceived of this plan were:
The group, including the victims, partook of supper which was charged to Roy Yanson.
a) Geroche, and Cdpr
Then
b) Fernandez
a) Abeto
206
b) Canuday, and
a) Fernandez, and
c) Pahayupan
b) Lamis
entered the room and asked Fernandez what they are going to do with the two victims to which Fernandez,
replied that he will be responsible for the two. llcd
blindfolded and handcuffed Lumangyao and Gargar (Exh. "A" and "A-1") and have them board a vehicle, with
a) Gargallano the driver

11:00 P.M. August 7, 1992
b) Geroche sitting in front, and with
a) Geroche
c) Moises Grandeza also seated inside.
b) Lamis
c) Fernandez, and
From D' Hacienda Motel, the group rode on the red toyota land cruiser. They proceeded to Hda. Pedrosa in
Brgy. Alijis. When they arrived there the two victims were ordered to alight and sit by the side of the road.
Geroche then asked Moises Grandeza to hold the hands of Lumangyao and then Gargar behind their backs.
After that
d) Moises Grandeza
a) Gargallano was the first to shoot. He shot Gargar at the back of his head (Exh. K) using a baby armalite. Then
rode on the red Toyota Land Cruiser to conduct Geroche to his house. The victims were left behind.
b) Geroche followed suit by shooting Lumangyao with a .45 cal. Pistol at his right lower jaw (Exh. L). cdasia
From his house Geroche took an armalite rifle and the group then went back to D' Hacienda Motel.
12:00 P.M. August 7, 1992
Thereafter, the two dead bodies were loaded on board the land cruiser and brought to Hda. Siason where Pecha
and Hilado buried them in the shallow grave they dug.
207
August 8, 1992
c) Fernandez
In Sitio Cabalagnan were recovered
d) Divinagracia
a) Three (3) empty shells of armalite rifle and one .45 cal. Empty shell (Exh. "G", "G-2")
e) Gargallano
In Hda. Siason were recovered
f) Delgado, and
a) the dead bodies of Rufino Gargar, Jr. and Danilo Lumangyao
g) Moises Grandeza
b) Both of the two victims hands were handcuffed (Exh. "A" and "A-1").
August 9, 1992
The same group again went to see Col. Torres in his office and reported the extermination of the two and Col.
Torres promptly gave the instruction that "you who are here inside, nobody knows what you have done but you
have to hide because the NBI are after you. llcd
went back to the office of Col. Torres and this time he told the group "to hide because the NBI are now
investigating".
4:00 P.M. August 12, 1992
August 10, 1992
The same group that liquidated Lumangyao and Gargar again went back to the office of Col. Torres where they
were asked by Col. Torres to escort him to Ceres Compound because he would like to borrow money from
Ricardo Yanson as Col. Torres said that he has huge debts to pay. Col. Torres was able on this occasion, to meet
Ricardo Yanson. cdrep
a) Lamis
On this same day,
b) Geroche
a) Moises Grandeza
208
b) Lamis, and
c) Geroche
were picked up in a land cruiser by the driver of the Yansons' to go to the house of Fernandez where Geroche
will give the money to the group. Each member of the group, after the check, which was drawn by Yanson, was
encashed were given the amount of P1,700.00 each.
August 13, 1992
Nenita Bello went to the office of Col. Torres to plead for his help in regard to the death of her relatives
Lumangyao and Gargar but was promptly turned down by Colonel Torres with the curt remark that her case was
very difficult because it involves the "military" and some "big times".
The Sangguniang Panlungsod of Bacolod City also passed, on this day, Resolution No. 328, series of 1992
urging the National Bureau of Investigation (NBI) to conduct an investigation on the death of "salvage victims"
Danilo Lumangyao and Rufino Gargar, Jr. as soon as possible (Exh. "I").
September 24, 1992
The bodies of Rufino Gargar Jr. and Danilo Lumangyao were exhumed at Brgy. Buenavista Cemetery,
Balintawak, Escalante, Negros Occidental and autopsies were conducted (Exhs. "M" and "N") by Dr. Ricardo
Jaboneta, Medico Legal Officer of the NBI. LexLib
a) Found on the body of Rufino Gargar, Jr. (per examination report, Exh. "M") among others, were ligature
marks, wrist joint, right side (Exh. "M-2"), and
b) Gunshot wound (Exh. "M-1")
As to Danilo Lumangyao, the exhumation report (Exh. "N") disclose
a) Ligature marks, right wrist (Exh. "N-2") and among others, and
b) Gunshot wound (Exh. "N-1")
After the National Bureau of Investigation, Bacolod Office, conducted its investigation, the State Prosecutors of
the Department of Justice took over and the result were the filing of these two criminal cases of Kidnapping
with Murder against the above-named accused.
(pp. 73-85, Decision; pp. 202-214, Rollo.)
After a thorough review of the factual findings of the trial court vis--vis the evidence on record, we find
ourselves unable to agree with the conclusions arrived at by the trial court convicting all 10 accused-appellants;
rather, we concur in the suggestion of the Solicitor General, that accused-appellants Jeanette Yanson-Dumancas
and Police Inspector Adonis Abeto should be acquitted. Too, by reason of his supervening death, accusedappellant Police Col. Nicolas Torres is acquitted. The judgment of conviction of the rest of the accusedappellants is to be affirmed. prcd
A. Jeanette (Ginette) Yanson-Dumancas
209
On the case of accused-appellant Jeanette Yanson-Dumancas (Jeanette, for short), the information charged her
of the crime of kidnapping for ransom with murder as principal by induction together with her husband,
Charles, who was found by the trial court not guilty of the crime.
appellant Dominador Geroche on two occasions (one inside the Ceres Compound: p. 205, Rollo, and the other
in D' Hacienda Motel: p. 207, Rollo). By no stretch of the imagination may these so-called "commands",
standing alone, be considered as constituting irresistible force or causing uncontrollable fear. LLjur
Article 17, Revised Penal Code, provides:
Art. 17. Principals. The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it.
3. Those who cooperate in the commission of the offense by another act without which it would not have been
accomplished. LexLib
What the Court now has to examine is whether or not sufficient evidence was adduced by the prosecution to
prove beyond reasonable doubt that Jeanette indeed performed any of the following acts: (a) directly forcing the
killers to commit the crime, or (b) directly inducing them to commit the crime.
There are 2 ways of directly forcing another to commit a crime, namely: (i) by using irresistible force, or (ii) by
causing uncontrollable fear. Upon review of the testimony of all the witnesses of the prosecution, we find
nothing to conclude that Jeanette used irresistible force or caused uncontrollable fear upon the other accusedappellants. From the factual findings of the trial court, it is patent that the plan to abduct and liquidate the
victims was hatched on August 5, 1992 (10:30 A.M.) without Jeanette's involvement or participation whatsoever
(p. 202, Rollo). The record is entirely bereft of any evidence to show that Jeanette directly forced the
participants of the said meeting to come up with such plan, by either using irresistible force or causing
uncontrollable fear. The only basis relied upon by the trial court in arriving at its conclusion that Jeanette is
guilty of the crime as principal by inducement, is the supposed "commands" or order given by her to accused-
Likewise, there are 2 ways of directly inducing another to commit a crime, namely: (i) by giving a price, or
offering reward or promise, and (ii) by using words of command. The Court finds no evidence, as did the trial
court, to show that Jeanette offered any price, reward, or promise to the rest of accused-appellants should they
abduct and later kill the victims in this case. If at all, the prosecution witness mentioned the name of Ricardo
Yanson as having lent money to accused-appellant Col. Torres to be used for paying the latter's debts or
obligations. But definitely, no money ever came from Jeanette herself. The trial court's surmise that the money
delivered by Ricardo Yanson to the group was with the knowledge and approval of Jeanette is completely
baseless.
The only matter left for consideration is whether the order supposedly given by Jeanette to accused-appellant
Geroche "to take care of the two" constitutes words of command which may be considered sufficient basis to
convict Jeanette as principal by inducement. prLL
In order that a person may be convicted as principal by inducement, the following must be present: (1) the
inducement be made with the intention of procuring the commission of the crime, and (2) such inducement be
the determining cause of the commission by the material executor (U.S. vs. Indanan, 24 Phil. 203 [1913]). To
constitute inducement, there must exist on the part of the inducer the most positive resolution and the most
persistent effort to secure the commission of the crime, together with the presentation to the person induced of
the very strongest kind of temptation to commit the crime.
By the foregoing standards, the remark of Jeanette to "take care of the two" does not constitute the command
required by law to justify a finding that she is guilty as a principal by inducement. As we held in U.S. vs.
Indanan, supra, "a chance word spoken without reflection, a wrong appreciation of a situation, an ironical
phrase, a thoughtless act, may give birth to a thought of, or even a resolution to crime in the mind of one for
some independent reason predisposed thereto without the one who spoke the word or performed the act having
210
any expectation that his suggestion would be followed or any real intention that it produce the result. In such
case, while the expression was imprudent and the results of it grave in the extreme, he (the one who spoke the
word or performed the act) would not be guilty of the crime committed" (p. 219). LLjur
A. Yes, sir.
(pp. 54-55, tsn Feb. 14, 1994)

Furthermore, the utterance which was supposedly the act of inducement, should precede the commission of the
crime itself (People vs. Castillo, July 26, [1966]). In the case at bar, the abduction, which is an essential element
of the crime charged (kidnapping for ransom with murder) has already taken place when Jeanette allegedly told
accused-appellant Geroche to "take care of the two." Said utterance could, therefore, not have been the
inducement to commit the crime charged in this case.
Most importantly, it was duly proven by no less than the prosecution witness himself, Moises Grandeza, that the
intention of Jeanette was but to allow the law to its course, when in his cross-examination, the following
transpired:
ATTY. PARREO:
Q And according to your testimony this morning, Jeanette Dumancas said, what more can we do that swindling
transpired four months ago, definitely that money could nowhere be around. Would you confirm that you
testified that this morning before this Court? Is that correct?
Thus, even the veracity of the allegation that Jeanette uttered the words: "take care of the two" is put to some
reasonable doubt by the prosecution witness himself. The remark, if made at all, cannot by any stretch of the
imagination, be basis for the conviction of Jeanette.
People vs. Manambit (271 SCRA 344 [1997]) finds apt application, to wit:
In criminal law, the quantum of evidence for conviction is that which produces moral certainty in an
unprejudiced mind that the accused is guilty beyond reasonable doubt. But, if the evidence is susceptible of two
interpretations, one consistent with the innocence of the accused and the other consistent with his guilt, the
accused must be acquitted.
(p. 385)
B. Police Inspector Adonis Abeto

A Yes, sir
Q Mr. Witness, this is very important. Please make a vivid recall. When Danilo Lumangyao made that answer
that the money was not around and Jeanette Dumancas said what's the use, the money is now nowhere to be
found as four months have already transpired, did not Jeanette Dumancas tell Doming: "Doming, bring these
two to the PC or police and I will call Atty. Geocadin so that proper cases could be filed against them?" Kindly
make a recall on that. LibLex
With respect to accused-appellant Abeto, we quote with approval the observations of the Solicitor General as
follows:
Police Inspector Adonis C. Abeto's appeal is meritorious. Be it remembered that Abeto's only participation was
to serve the search warrant on Helen Tortocion's residence and the subsequent interrogation of the two victims
at the Hacienda Motel. He was never part of the conspiracy to abduct and liquidate the two victims. He is
similarly situated as that of Canuday and Pahayupan. prcd
211
The trial court, in acquitting Canuday and Pahayupan had this to say:
The evidence against Officer CANUDAY, JR. shows that in the afternoon of August 6, 1992, together with
Officers ABETO and PAHAYUPAN, they went to Dragon Lodge Motel to investigate LUMANGYAO and
GARGAR, JR. as to the whereabouts of the gold (fake) bar used in swindling JEANETTE. The two captives
answered that it is with HELEN TORTOCION. A subsequent search of Tortocion's house led by Officer
ABETO yielded no fake gold bar. Meanwhile, in the evening of August 7, 1992, Officers ABETO, CANUDAY,
JR., and PAHAYUPAN showed up at D' Hacienda Motel to inquire from FERNANDEZ what he is going to do
with the two.
1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil
liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of the accused prior to
final judgment terminates his criminal liability and only the civil liability directly arising from and based solely
on the offense committed, i.e., civil liability ex delicto in senso strictiore." LibLex
2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be
predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other
sources of obligation from which the civil liability may arise as a result of the same act or omission:
a) Law
Like Officer Pahayupan, his being in the company of Officers Abeto, on the two occasions can not give rise, to
without proof of previous agreement, a conspiracy. Thus, being present at the scene of the crime is not by itself
sufficient to establish conspiracy, as already averted to previously. So does mere companionship.
(p. 1720-1721, Rollo.)
After due consideration of accused-appellant Abeto's constitutional right to the presumption of innocence,
coupled with the presumption of regularity in the performance of his official functions having simply followed
the order of his superior officers, much is left to be desired before the Court can sustain the trial court's
conviction of accused-appellant Abeto. The two presumptions negate the inadequate proof adduced against
accused-appellant Abeto, who must perforce be acquitted, in much the same manner that accused Canuday, Jr.
and Pahayupan, who being similarly situated, were cleared and absolved.
C. Police Col. Nicolas M. Torres
As for accused-appellant Col. Torres, who passed away during the pendency of this appeal, the following rule
laid down by this Court in People vs. Bayotas (236 SCRA 239 [1994]) applies:
b) Contracts
c) Quasi-contracts
d) . . .
e) Quasi-delicts
3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be
pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate civil action may be enforced either against the
executor/administrator of the estate of the accused, depending on the source of obligation upon which the same
is based as explained above. llcd
212
4. Finally, the private offended party need not fear a forfeiture of his right to file a separate civil action by
prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the privateoffended party instituted together therewith the civil action. In such case, the statute of limitations on the civil
liability is deemed interrupted during the pendency of the criminal case, conformably with provisions of Article
1155 of the Civil Code, that should thereby avoid any apprehension on possible privation of right by
prescription.
(pp. 255-256)
With the application of the above set of rules to accused-appellant Torres, we hold that his death extinguished
his criminal liability and the civil liability solely based thereon. Accordingly, the appeal of accused-appellant
Torres is forthwith dismissed, such dismissal having the force and effect of an acquittal.
In an attempt to buttress the contention that witness Grandeza's testimony should not have been given credence
by the court a quo, accused-appellants referred to supposed inconsistencies between Grandeza's sworn
statements before investigators vis--vis his testimony in court (pp. 349-359, Rollo; and 1465-1468, Rollo). The
Court, however, is not impressed. This will not be the first occasion for us to hold that discrepancies between
the statements of the affiant in his affidavit and those made by him on the witness stand do not necessarily
discredit him since ex-parte affidavits are generally incomplete affidavits are generally subordinated in
importance to open court declarations (People vs. Padao, 267 SCRA 64 [1997]). A contradiction between a
witness' affidavit and his testimony in open court may almost be explained by the fact that, being taken ex parte,
an affidavit is often incomplete and inaccurate, sometimes from partial suggestions, and sometimes from the
want of suggestions and inquiries (Sumalpong vs. Court of Appeals, 268 SCRA 764 [1997]). Grandeza's
perceived failure to mention anything in his 3 affidavits pertaining to the supposed meetings where the criminal
plot was hatched, does not necessarily render his testimony in court unworthy of credit.
D. Pol. Officer Mario Lamis y Fernandez, Dominador Geroche y Mahusay, Jaime Gargallano, Rolando R.
Fernandez, Edwin Divinagracia, Teody Delgado, and Cesar Pecha
Now, in regard to the other accused-appellants, after a careful review of the evidence, we find the same
sufficient to affirm their conviction.
These accused-appellants assail the credence given by the trial court to the eyewitness account of Moises
Grandeza. Even after a thorough perusal of their main appellant's brief (pp. 327-498, Rollo), plus the separate
briefs of accused-appellants Geroche (pp. 1453-1627) and Pecha (pp. 828-1009, Rollo), we find no cogent
reason to depart from the well settled rule that when it comes to the issue of credibility of witnesses, the factual
findings of the trial court is generally accorded great weight. In People vs. Taedo (266 SCRA 34 [1997]) the
Court had occasion to reiterate the ruling that findings of fact of the trial court pertaining to the credibility of
witnesses command great respect since it had the opportunity to observe their demeanor while they testified in
court. The briefs of accused-appellants Lamis, et al. are replete with generalities and legal principles relating to
the issue, but are utterly wanting in relevant particulars which may be the basis to rule that indeed, the trial court
erred in lending full credence to the testimony of witness Grandeza on the matter. As held in People vs. Ramirez
266 SCRA 335 [1997]), unless the trial judge plainly overlooked certain facts of substance and value which, if
considered, might affect the result of the case, his assessment on credibility must be respected. cdrep
In his brief, accused-appellant Geroche cites Grandeza's failure to identify one of their co-accused, Charles
Dumancas, in open court, and the variance on the alleged instructions given by Jeanette, and the failure by
Grandeza to mention the supposed meetings in his previous affidavits, as grounds to totally disregard
Grandeza's entire testimony for being unworthy of credence (pp. 1461-1469, Rollo). Indirectly, accusedappellant Geroche wants this Court to apply the maxim falsus in uno, falsus in omnibus. In this regard, we held
in People vs. Pacis (130 SCRA 540 [1984]):
The maxim of "falsus in uno falsus in omnibus," however, is not a positive rule of law. Neither is it an inflexible
one of universal application. If a part of a witness' testimony is found true, it cannot be disregarded entirely. The
testimony of a witness may be believed in part and disbelieved in part. prcd
(p. 546)
Also in People vs. Li Bun Juan (17 SCRA 934 [1966]) we ruled:
213
. . . In this connection it must be borne in mind that the principle falsus in uno falsus in omnibus is not an
absolute one, and that it is perfectly reasonable to believe the testimony of a witness with respect to some facts
and disbelieve it with respect to other facts. In People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the following
was quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23:
"18. Testimony may be partly credited and partly rejected. Trier of facts are not bound to believe all that any
witness has said; they may accept some portions of his testimony and reject other portions, according to what
seems to them, upon other facts and circumstances to be the truth . . . Even when witnesses are found to have
deliberately falsified in some material particulars, the jury are not required to reject the whole of their
uncorroborated testimony, but may credit such portions as they deem worthy of belief.
(p. 945)
The grounds relied upon by accused-appellant Geroche do not, therefore, constitute cogent reasons to discredit
the testimony of eyewitness Grandeza in its entirety.
As regards accused-appellant Geroche's defense of alibi, it is settled that alibi cannot prevail over positive
identification (People vs. Garma, 271 SCRA 517 [1997]). Being easy to fabricate and difficult to disprove, alibi
cannot prevail over and is worthless in the face of the positive identification of the accused-appellant (People
vs. Datun, 272 SCRA 380 [1997]). Besides, the record is bereft of strong and convincing evidence that accused
appellant could not have been at the scene of the crime because the certification proffered in support thereof
stated that he was in Mt. Calandog only after the commission of the crime. And, as aptly stated by the Solicitor
General in the People's brief, "the trial court expressed puzzlement why this supposed fact was not mentioned in
his July 3, 1993 affidavit . . . The first impulse of an innocent man when accused of a wrongdoing is to express
his innocence at the first opportune time. The People can only conclude that Geroche's defense of alibi is but an
afterthought" (p. 1723, Rollo). LibLex
As to accused-appellant Cesar Pecha's case, the Court finds it difficult to believe that he had no knowledge that
the 2 victims he was burying were victims of violence. The deceased were surely bloodied from their gunshot
wounds and were in fact still handcuffed when exhumed from their shallow grave. It becomes almost
impossible for accused-appellant Pecha not to at least, entertain doubts as to the absence of foul play in this
case. He is thus guilty as an accessory to the crime committed under Paragraph 2, Article 19, of the Revised
Penal Code, to wit:
ART. 19. Accessories. Accessories are those who, having knowledge of the commission of the crime, and
without having participated therein, either as principals or accomplices, take part subsequent to its commission
in any of the following manners:
1. By profiting themselves or assisting the offender to profit by the effects of the crime;
2. By concealing or destroying the body of the crime or the effects or instruments thereof, in order to prevent its
discovery;
3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts
with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or
an attempt to take the life of the Chief Executive, or is known to habitually guilty of some other crime. prcd
All told, there are only reasons to affirm, and none to reverse, the trial court's conviction of accused-appellants
Pol. Officer Mario Lamis y Fernandez, Dominador Geroche y Mahusay, Jaime Gargallano, Rolando R.
Fernandez, Edwin Divinagracia, and Teody Delgado as principals by direct participation of the crime of
kidnapping for ransom with murder, and that of Cesar Pecha as accessory thereto.
Under Article 267 of the Revised Penal Code, when the crime of kidnapping is committed for the purpose of
extorting ransom from the victims, the penalty is death. However, since the crime was committed before the reimposition of the death penalty, only reclusion perpetua is imposable upon all the accused-appellant found
guilty of the crime as principals. Accused-appellant Pecha's penalty, as accessory is 2 degrees lower, which is
prision mayor. Applying the indeterminate sentence law, the penalty to be imposed is 6 months and 1 day (the
minimum of prision correccional), as minimum, up to 8 years (within the minimum period of prision mayor), as
the maximum.
214
On the civil liabilities, accused-appellants who are herein convicted of the crime as principals are held solidarily
liable for the amount of P50,000.00 to the heirs of each of the victims, as indemnity for their death. The amount
of P50,000.00, each, by way moral damages and P25,000.00, each, as exemplary damages are already deemed
sufficient. Accused-appellant Cesar Pecha is held liable for one-tenth of the above amounts. The appealed
judgment is silent as to any justification for the other damages awarded and can therefore not be sustained on
appeal. cda
WHEREFORE, accused-appellants JEANETTE YANSON-DUMANCAS and ADONIS ABETO are hereby

ACQUITTED and forthwith ordered released from detention unless there may be reason for their further
detention on other criminal cases. The case and appeal of NICOLAS TORRES is DISMISSED by reason of his
death. The convictions of all the other accused-appellants for each case filed are AFFIRMED except for the
modification that accused-appellant CESAR PECHA is sentenced for each case to an indeterminate prison term
of six (6) months and one (1) day of prision correccional, as minimum up to eight (8) years of prision mayor, as
maximum. Joint and several civil liability for the accused-appellants found guilty as principals, is reduced to
P50,000.00 for each case, as indemnity for the death of each victim, P50,000.00 for each case, by way moral
damages, and P25,000.00 for each case, by way of exemplary damages. The civil liability of accused-appellant
Cesar Pecha is maintained at one-tenth of the above amount
No special pronouncement is made as to costs. cdrep
SO ORDERED.
Vitug, Panganiban, Purisima and Gonzaga-Reyes, JJ., concur.
||| (People v. Yanson-Dumancas, G.R. Nos. 133527-28, [December 13, 1999], 378 PHIL 341-368)
EN BANC
[G.R. No. L-14752. April 30, 1963.]
FRANCISCO R. CARIO, petitioner, vs. PEOPLE OF THE PHILIPPINES and THE HON. COURT OF
APPEALS, (1st Division), respondents.
Teehankee & Carreon for petitioner.
Solicitor General for respondents.
SYLLABUS
1. REBELLION; ACCOMPLICES; ELEMENTS THAT SHOULD BE PRESENT TO CONSTITUTE

COMPLICITY; GIVING AID AND COMFORT NOT CRIMINAL IN REBELLION. Appellant was not a
member of the Hukbalahap organization. He did not take up arms against the Government, nor did he openly
take part in the commission of the crime of rebellion or insurrection as defined in article 134 of the Revised
Penal Code, without which said crime would not have been committed. The only acts he was shown to have
performed were the sending or furnishing of cigarettes and food supplies to a Huk leader, the changing of
dollars into pesos for a top-level communists and the helping of Huks in opening accounts with the bank of
which he was an official. Held: These acts by themselves do not prove any criminal intent of helping the Huks
in committing the crime of insurrection or rebellion. Good faith is presumed, and no presumption of the
existence of a criminal intent or aiding the communists in their unlawful designs to overthrow the Government,
the assistance thus extended by him was not efficacious enough to help in the successful prosecution of the
crime so as to make him an accomplice therein. Appellant's acts did not constitute acts of cooperation in the
execution of the act of overthrowing the government. Even if considered an indirect help or aid in the rebellion,
215
they cannot constitute previous or simultaneous acts or uprising or rebellion, for, unlike in the crime of treason,
the acts giving comfort of moral did is not criminal in the case of rebellion or insurrection, where the Revised
Penal Code expressly declares that there must be a public uprising and the taking up of arms. Appellant is
therefore absolved from the charge.
2. The raid on August 6, 1946 of the Municipal Building of Majayjay, Laguna;
3. The ambush on April 10, 1947 of 14 enlisted men in Barrio San Miguel na Munti, Talavera, Nueva Ecija,
during which Lt. Pablo Cruz and Pvt. Santiago Mercado were killed;
DECISION
4. The raid on the poblacion of Laur, Nueva Ecija of May 9, 1947;
LABRADOR, J p:
5. The ambush on August 19, 1947 of a detachment of the 155th Company, in San Miguel, Bulacan, killing two
officers thereof;
This is an appeal by way of certiorari from the decision of the Court of Appeals dated October 18, 1958 in the
above entitled case, affirming the judgment of the Court of First Instance of Manila finding the accused
Francisco Cario guilty as accomplice in the crime of rebellion, and sentencing him to suffer two (2) years, four
(4) months and one (1) day of prision correccional and to pay a fine in the sum of P2,000 with subsidiary
imprisonment in case of insolvency.
In an information dated April 28, 1952, filed in the Court of First Instance of Manila, the accused was charged
with the crime of rebellion with murders, arson, robberies and kidnappings, for having, as a high ranking officer
and/or member of the Communist Party of the Philippines and of the Hukbong Mapagpalaya Ng Bayan
otherwise known as the Hukbalahaps (Huks), agreed in conspiracy with 31 other who were charged with the
same crime in other criminal cases then pending in the Court of First Instance of Manila, for the purpose of
overthrowing the Government and disrupting its activities.
6. The raid on Pantabangan, Nueva Ecija of June 1946;
7. The ambush on April 25, 1947 of Mrs. Aurora Aragon Quezon and party at Barrio Salubsob, Bongabon,
Nueva Ecija, resulting in the death of said Mrs. Quezon and other members of her party;
8. The raid on Camp Macabulos, Tarlac, Tarlac, on August 25, 1950;
9. The raid on Sta. Cruz, Laguna, of August 26, 1950;

The specific acts of rebellion which the accused is alleged to have committed in conspiracy with other members
of the Communist Party, between the period from May 6, 1946 to September 12, 1950, are:
1. The ambush on May 6, 1946 of the 10th MPC Company in Barrio Sta. Monica, Aliaga, Nueva Ecija;
resulting in the death of 10 enlisted men;
10. The raid on Arayat, Pampanga, of August 25, 1950;
11. The seizure of September 12, 1950 of an army scout car in Barrio Mapalad, Arayat, Pampanga and the
murder of two TPs on the said occasion;
216
12. The attack on the headquarters of a PC detachment of March 28, 1950, at Montalban, Rizal; and
13. The raid on San Pablo, Laguna, of March 29, 1950, resulting in the death of Major Alikbusan of the
government armed forces.
Although the defendant-appellant expressly admitted the truth of the allegations of the commission of robberies,
murders, arsons, kidnappings, etc., in the manner and form alleged and on the dates stated in the information he
vigorously denied any participation therein.
It appears from the evidence, as found by the Court of Appeals, that the accused is a close friend of Dr. Jesus
Lava (a top leader of the Communists and a wanted man with a price on his head) who was his classmate in the
high school, and who later on became the godfather of the first child of the accused. Appellant's wife and
children were treated successfully by Dr. Lava in 1939 and 1943 for various illnesses free of charge and
appellant believed that his wife and children owe their lives to Dr. Lava. One night in the year 1946, Dr. Lava
arrived in the house of the accused asking for shelter, stating that he was being persecuted by certain politicians
from Bulacan, on suspicion that he had something to do with the killing of Mayor Roxas of Bulacan, Bulacan.
Appellant gave Lava accommodation for the night, and early the following morning Lava left. The next time
that the appellant heard from Dr. Lava was in May, 1949, when he received a note from the latter asking for
some cigarettes, powdered milk and canned goods. The note was brought by a boy of 12 or 15 years, named
Totoy, and through him the accused sent the needed supplies. Thereafter, every now and then, the same boy
brought to appellant similar notes from Dr. Lava, requesting for food and supplies, which the accused furnished
in as small amounts as he could send.
In the first note of Dr. Lava, appellant was instructed to sign "Turko" all notes to be sent by him to the former
and to address them to "Pinang" in order to conceal their respective identities. This exchange of notes between
them and the furnishing of supplies and foodstuffs by appellant to Dr. Lava lasted from 1949 until April, 1952,
when the accused was arrested and detained.
The Court of Appeals also found that appellant, as a ranking employee of the National City Bank of New York
was approached by a prominent member of a special unit of the Communist Party, entrusted with the carrying
out of raids, hold-ups, etc. for the purpose of raising funds, and through his assistance the amount of $6,000,
part of the proceeds or loot of said special unit, was changed into pesos and then delivered to the treasurer of the
communists; that appellant also assisted on or about October 12, 1950, two top-level communists in opening
current accounts in the National City Bank of New York although their initial deposit was below P2,000, the
minimum required by the bank. (However it was not shown that the persons helped were known by appellant to
be communist and the funds intented to carry out the rebellion.)
Sometime in 1949, appellant was present at a banquet given by the Communists in honor of Amado V.
Hernandez, one of the supposed top- level members of the organization, on which occasion he was introduced
as a communist to Florentino Diolata, who posed as a communist but who, in reality, was a person secretly
planted by the Constabulary as a spy; that while being introduced the accused stated that he was at the
command of his comrades for any assistance for the advancement and promotion of their common purpose.
Article 18 of the Revised Penal Code defines accomplices, thus:
"ART. 18. Accomplices. Accomplices are those persons who, not being included in article 17, cooperate in
the execution of the offense by previous or simultaneous acts."
In the case of People vs. Tamayo, 44 Phil. 38, 49, we held as an essential condition to the existence of
complicity that there be not only a relation between the acts done by the principal and those attributed to the
person charged as an accomplice, but that the latter, with knowledge of the criminal intent, cooperated with the
intention of supplying material or moral aid in the execution of the crime in an efficacious way.
So that there are two elements required, in accordance with the definition of the term accomplice given in the
Penal Code in order that a person may be considered an accomplice to a criminal act, namely; that he take part
in the execution of the crime by previous and simultaneous acts and that he intend by said acts to commit or
take part in the execution of the crime.
The crime of rebellion or insurrection has been defined as follows:
217
"ART. 134. Rebellion or insurrection How committed. The crime of rebellion or insurrection is committed
by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to
said government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval
or other armed forces, or of depriving the Chief Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives." (Revised Penal Code).
In the case at bar the appellant did not take up arms against the government. Neither was he a member of the
Hukbalahap organization. The Court of Appeals also found that he did not openly take part in the commission of
the crime above defined by any other acts without which said crime would not have been committed. (Decision,
p. 7) Said the Court of Appeals:
"There is no clear and conclusive evidence that the accused is a member of the Communist Party or of its sister
organization, the 'Hukbong Mapagpalaya Ng Bayan', but there can be no doubt that he is a sympathizer of the
communists and helped them by giving supplies to Dr. Jesus Lava and by sending notes to him, knowing that he
is a top- level communist with a high price on his head. And not only that. The accused also helped a top-level
communist in changing six thousand dollars ($6,000) into pesos in the National City Bank of New York, of
which he was a ranking official with the designation of Pro Manager. He also introduced to the bank two toplevel communists and helped them in opening checking accounts in the bank where they deposited money used
in the activities of the Communist Party.
"By extending such help to well-known members of the Communist Party and knowing that the avowed
purpose of said party is to overthrow the government, the accused, by means of overt acts gave them aid,
comfort, and assistance and indirectly helped them in their fight against the Government. Of course the accused
did not take direct participation in the acts alleged in the information, nor did he directly force or induce the
communists to commit such acts; neither did he openly take part in the commission of the acts of rebellion by
another act without which the act of rebellion would not have been accomplished. However, the acts done by
him as above stated constitute acts of cooperation with the communists in their primordial purpose of
overthrowing the government and such acts naturally have contributed to some extent in the advancement and
promotion of their purpose. 'By such cooperation knowingly extended by him, he is liable as an accomplice in
the crime of rebellion as found by the trial court."
We cannot agree to the above conclusion of the Court of Appeals that the above-mentioned acts of appellant
constitute acts of cooperation in the execution of the acts of overthrowing the government. If appellant's acts
may be considered an indirect help or aid in the rebellion, which we positively doubt, the same cannot constitute
previous or simultaneous acts of uprising or rebellion. In the crime of treason any act of giving comfort or moral
aid may be criminal, but such is not the case with rebellion or insurrection where the Code expressly declares
that there must be a public uprising and the taking up of arms in rebellion or insurrection. The acts of sending or
furnishing cigarettes and food supplies to a famous Huk does not prove intention to help him in committing
rebellion or insurrection. Neither is the act of having $6,000 changed to Philippine money or in helping Huks to
open accounts, by themselves show an intent or desire to participate or help in an uprising or rebellion.
Appellant's work was as a public relation of officer of the bank of which he was an employee, and the work
above indicated performed by him was a part of his functions as an employee of the bank. These acts by
themselves do not and cannot carry or prove any criminal intent of helping the Huks in committing the crime of
insurrection or rebellion. The law is to the effect that good faith is to be presumed. No presumption of the
existence of a criminal intent can arise from the above acts which are in themselves legitimate and legal. Said
acts are by law presumed to be innocent acts while the opposite has not been proved.
But granting, for the sake of argument, that appellant had the criminal intent of aiding the communist in their
unlawful designs to overthrow the Government, the assistance thus extended by him may not be considered
efficacious enough to help in the successful prosecution of the crime of insurrection or rebellion so as to make
him an accomplice therein. (People vs. Tamayo, supra.) We, therefore, find that the supposed acts found by the
Court of Appeals to have been committed by the appellant do not necessarily and legitimately lead to the
conclusion that he performed said acts precisely with the criminal intent of helping in the execution or the
carrying out of the rebellion of insurrection.
For the foregoing considerations, we declare that the guilt of appellant as an accomplice in the crime of
rebellion or insurrection as charged in the information has not been proved beyond reasonable doubt, his
supposed acts not having been shown to be acts of direct cooperation in the execution of the crime, nor have
they been induced by a criminal intent, nor were they shown to be sufficiently efficacious to make appellant
guilty as accomplice in the crime charged.
WHEREFORE, the judgment appealed from is hereby reversed and the appellant absolved from the charge
contained in the information. With costs de officio.
218
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal,
JJ., concur.
Padilla, J., took no part.
Rafael than the latter would have as to him. The source of the possible motive is the same: land trouble between
Rafael Cabizares and Sulpicio's father, and the ejectment suit instituted before the Agrarian Court against the
latter by the former. Considering that Rafael was the prevailing party in the land dispute before the NARRA, it
is quite hard to believe that he would be the one entertaining a grudge against those over whom he had
prevailed. Rather, it was the accused, who were defeated and who were now facing an ejectment suit which was
set for hearing, that harbored resentment against the deceased.
||| (Carino v. People, G.R. No. L-14752, [April 30, 1963], 117 PHIL 909-916)
2. ID.; ID.; RELATIONSHIP OF WITNESSES TO VICTIM; EFFECT. That most of the prosecution
witnesses are related to the victims does not necessarily impair their credibility.
EN BANC
[G.R. No. L-20911. October 30, 1967.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SULPICIO DE LA CERNA, ET AL., defendants.
SULPICIO DE LA CERNA, SERAPIO MAQUILING, TEODORO LIBUMFACIL, GODOFREDO ROTOR,
SEVERINO MATCHOCA, and ANTONIO BAUTISTA, defendants-appellants.
Godofredo Galindez for defendants.
The Solicitor General for plaintiff.
3. ID.; ID.; APPRECIATION OF THE EVIDENCE AND THE CREDIBILITY OF THE WITNESSES;
WEIGHT OF LOWER COURT'S FINDINGS. Where from the record, it is apparent that the so-charged
inconsistencies and improbabilities in the testimonies are without substantial and significant basis, the lower
court's findings should stand, especially since they involve an appreciation of the evidence and credibility of the
witnesses.
4. ID.; MURDER; TREACHERY; SECOND SHOT SHOULD BE INDEPENDENTLY CONSIDERED

WHERE THERE IS SUFFICIENT LAPSE OF TIME FROM FIRST SHOT. The killing of Rafael Cabizares
was attended by treachery. Appellant Sulpicio contends that the first shot, fired by him, was not attended with
treachery since there is evidence that Rafael was warned by his son Gumercindo just before he was hit in the
lower abdomen. However, even assuming the argument to be tenable, the second shot, by Serapio Maquiling,
was definitely treacherously fired since Rafael was then in the third room of Demetrio's house, wounded and
defenseless. The treachery here has to be independently considered due to the sufficient lapse of time from the
first shot, in which the following intervened: (1) the bringing of Rafael to Demetrio's house 100 meters away
after being hit; (2) the washing of his wounds and his being brought to the third room to rests, (3) the arrival of
the accused and their ordering the two women to get out. It was only after the women left that Serapio climbed
up the kitchen and fired the second shot at Rafael.
SYLLABUS
1. CRIMINAL LAW; EVIDENCE; MOTIVE; AS BETWEEN PROTAGONISTS IN A PREVIOUS

CONFLICT, RESENTMENT RESTS WITH LOSING PARTY. Sulpicio has more reason to resent and kill
5. ID.; ID.; EVIDENT PREMEDITATION. There is evident premeditation where as in this case the plan to
kill Rafael Cabizares was arrived at in a meeting held the day prior to the actual killing. 6. ID.; ID.;
EVIDENCE; RETRACTION BY A WITNESS OF HIS PREVIOUS TESTIMONY; RULE THEREON.
Mere retraction by a prosecution witness does not necessarily vitiate the original testimony otherwise credible.
The proper things for the court to do is to weigh and compare both testimonies. Here, the lower court, after
219
having done so, accepted the witness' original testimony, for the prosecution. The record supports the court's
action.
7. ID.; ID.; INDIVIDUAL RESPONSIBILITY FOR THE KILLING OF ANOTHER PERSON IN ADDITION
TO THE INTENDED VICTIM. - Appellant Sulpicio cannot be held liable for the killing of Casiano Cabizares,
notwithstanding a conspiracy was to kill Rafael only and no one else. Nothing was said or agreed upon about
the members of Rafael's family. In fact, in executing their plan appellants let the two women inside Demetrio's
house leave unhurt and they did no harm to the remaining companions of Rafael in the house. The rule has
always been that co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts done
outside the contemplation of the co-conspirators or which are not the necessary and logical consequence of the
intended crime, only the actual perpetrators are liable. Here, only Serapio killed Casiano Cabizares. The latter
was not even going to the aid of his father Rafael but was fleeing away when shot.
8. ID.; PRINCIPAL BY INDIRECT CONSPIRACY; CASE OF APPELLANT ROTOR. Appellant Rotor's

presence in the situs of the shootings on February 2, 1958 was not merely passive. His active participation shooting at Rafael and carrying a pistol which has a direct connection with the criminal design against Rafael
Cabizares makes him a principal by indirect conspiracy, not an accomplice only. Motive is not wanting. Rotor
admitted that his wife is the sister of Sulpicio's wife and the evidence shows that his father had a land dispute
with Rafael Cabizares and was a respondent in the case before the Agrarian Court.
9. ID.; CO-CONSPIRATORS ARE CO-PRINCIPALS; CASE OF APPELLANTS BAUTISTA AND

MATCHOCA. The presence and active participation of appellants Bautista and Matchoca in Abapo's house
where the plan to kill Rafael was arrived at, make them actual conspirators in the killing of Rafael. They were
also present and zealously participating in the execution of their criminal design, giving a carbine magazine and
instructions to appellant Rotor, threatening Rafael and giving encouragement to Sulpicio to shoot at the latter.
They were among those who laid siege to Demetrio's house and left together with others after finally
accomplishing their criminal deeds as agreed upon. Appellants Bautista and Matchoca are therefore also liable
as co- principals in Rafael's murder. Regarding motive, it was proved that both were among those involved in
the land conflict with Rafael Cabizares and were among the respondents in the case before the Agrarian Court.
Rafael also, and took part in the stoning of Demetrio's house where Rafael was brought. His actuations manifest
that he was aware of the criminal design of the original conspirator's, that he approved of it and carried it out,
thus showing that his presence at the scene of the crime was not merely passive. Consequently, he is a coprincipal in Rafael's murder. Motive is not wanting. It was established that his mother had a land conflict with
Rafael and that his step-father Diosdado Esperanza was one of the respondents in the case before the Agrarian
Court.
DECISION
BENGZON, J.P., J p:
Sixteen persons, among them herein appellants, were indicted by the provincial fiscal in the Court of First
Instance of Cotabato for double murder for the fatal shooting of Rafael and Casiano Cabizares, 1 father and son,
in Barrio Cebuano, municipality of Tupi, province of Cotabato, on February 3, 1958. All pleaded not guilty.
In the course of the trial, after the prosecution had rested the People's case, the accused filed a motion to dismiss
on the ground, inter alia, that the fiscal, after conducting his own preliminary investigation, included in the
charge the other accused who were already dropped therefrom by the Municipal Court. The trial court denied
said motion but acquitted accused Gaspar Bautista, Agapito Avellana, Cesar Abapo and Eriberto Matchoca for
insufficiency of evidence against them.
The defense then presented its evidence. While at this stage, accused Segundo de la Cerna died and the charge
against him was dropped.
After trial, the lower court, on January 3, 1962 promulgated its decision. Acquitted were Guillermo Esperanza,
Concordio Pardillo, Deogracias Pardillo, Andres Abapo and Joaquin Libumfacil.
10. ID.; ACTIVE PARTICIPATION IN THE MURDER; CASE OF APPELLANT LIBUMFACIL. Although
appellant Libumfacil was not present in Abapo's house on February 2, 1958, he was present at Sulpicio's house
and in the premises of Demetrio's house with the other accused and appellants. He was armed, had fired at
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Convicted for the murder of Rafael Cabizares were Sulpicio de la Cerna and Serapio Maquiling, as principals,
and Godofredo Rotor, Antonio Bautista, Severino Matchoca and Teodoro Libumfacil, as accomplices.
and his son Gumercindo to accompany him up the hill and carry on their backs the sacks of corn. With Rafael
leading, the four proceeded uphill.
For the murder of Casiano Cabizares, the court convicted Sulpicio de la Cerna and Serapio Maquiling as
principals, and Ramon Alquizar as accessory.
A motion to reconsider by the convicted accused failed to move the lower court. So the said accused followed
up with their notice of appeal. Two days later accused Ramon Alquizar was allowed to withdraw his intended
appeal. And during the pendency of the appeal in this Court, accused Serapio Maquiling moved to withdraw his
appeal also, and this was granted on August 8, 1967.
The present appeal, therefore, involves only Sulpicio de la Cerna as principal for the killing of both Rafael and
Casiano Cabizares; and Teodoro Libumfacil, Godofredo Rotor, Severino Matchoca and Antonio Bautista as
accomplices for the killing of Rafael Cabizares.
The first question is procedural. It appears that when the municipal court finished with the preliminary
investigation, it opined that only appellant Sulpicio de la Cerna was guilty while the rest of the accused were
not. The fiscal, however, without seeking a review of the findings of the court, conducted his own investigation
and, afterwards, indicted all the accused. It is contended that this was serious error. The objection, however, was
raised only after the prosecution had already rested its case. Hence, whatever procedural defect there was, had
been waived by the appellants by their failure to raise it before entering their pleas. 2
Appellants next assail the lower court for relying on the prosecution witnesses who gave, in substance, the
following narration of facts and circumstances:
Early in the morning of February 3, 1958, Rafael Cabizares, accompanied by his wife, Hospicia, his brothers
Margarito and Romualdo, and his sons Gumercindo, Marcelo, Casiano, Juan and Lamberto, left Barrio Cebuano
headed for the poblacion of Tupi, Cotabato, bringing five sacks of corn loaded on a bull cart to be milled in
Tupi. Juan, Marcelo and Lamberto, who were all minors, were then going to school. Upon approaching a hilly
part, they had to stop since the carabao could not pull the bull cart uphill. Rafael then requested his two brothers
As the four approached Sulpicio de la Cerna's house on top of the hill and were about to put down the sacks of
corn, appellant Sulpicio, who was in the house, fired at and hit Rafael, who fell down. Sulpicio then ordered his
companions to burn his house so that they would have an excuse. Meanwhile, Casiano, Gumercindo, Marcelo
and Romualdo brought the wounded Rafael Cabizares to the house of the latter's father, Demetrio, 100 meters
away. Felisa Bastismo, Rafael's mother, Ursula Cabizares and Segundino Cabizares were there at the time.
After the group reached the house, Rafael's wounds were washed with hot water and then he was brought inside
the third room of the house. Subsequently, appellant Sulpicio and the other accused arrived at the premises,
armed with firearms, bolos and canes. They stoned the house and thrust their bolos thru the bamboo walls and
flooring. Finding that there were women inside the house, the accused ordered them to get out or else they
would be killed also. As Felisa Bastismo and Ursula Cabizares alighted from the besieged house, Marcelo
Cabizares followed them, and although held by accused Conrado Pardillo and boxed by Serapio Maquiling, he
was able to escape to the nearby forest.
Serapio Maquiling then climbed up the window of the kitchen, and with the carbine which he got from
appellant Sulpicio de la Cerna, shot at Rafael Cabizares who was sitting in the third room. At this moment,
Casiano Cabizares jumped down from the house thru the kitchen door and ran away. Serapio Maquiling
followed him and shot the latter at the back, killing him a few meters away from Demetrio's house. Appellant
Sulpicio de la Cerna then got back the carbine, climbed up the house and fired once more at Rafael, who was
now lying down on the floor, killing him finally. Thereafter, the cadaver of Casiano Cabizares was tied to a
bamboo pole, carried by accused Ramon Alquizar and one Wilfredo Malias (at large) and placed near the
burned house of Sulpicio de la Cerna, as some of the accused followed while the rest proceeded to Rafael's
house.
The post mortem examination 3 conducted that very same day showed that Casiano Cabizares died from a gunshot wound, the bullet entering the back and passing out in front, while Rafael Cabizares sustained three
221
gunshot wounds of entrance, one gunshot exit wound, and one stab wound. Dr. Bienvenido Garcia, the
Municipal Health Officer, explained that the bullet which caused the first wound located in front, at the left
lower abdomen, did not go thru at the back but split into two parts after entering the body. However, these two
parts were already palpable on the left buttock of the decedent from which they were extracted. The bullet
which caused the second wound located directly at the back lodged in the 11th thoracic vertebra. The third
bullet entered near the left breast and went out at the right lumbar region.
The prosecution also presented proof that prior to the incident, a land dispute arose between Rafael and some of
the accused, 4 and that he had filed complaints 5 with the Agrarian Court against the latter, the trial of which
cases was scheduled on February 10, 1958.
Appellants would have this Court believe that they are innocent. The four appellants convicted as accomplices
insist they were never at the vicinity of the killing. On the other hand, appellant Sulpicio de la Cerna claims that
both Rafael and Casiano were killed in self- defense.
Sulpicio's version of what transpired is this:
In the morning of February 3, 1958, Guillermo Esperanza and Sulpicio de la Cerna had just roasted corn in the
latter's house when Rafael, Casiano, and others, all armed with bolos and canes, arrived. Rafael demanded of
Sulpicio to come down for a confrontation. The latter's refusal to do so angered Rafael who threw his cane at
Sulpicio and ordered his companions to surround the house, thrust their bolos thru it and burn it. Because the
house was on fire, and fearing that he would be killed, Sulpicio alerted Guillermo Esperanza, got his carbine
and fired indiscriminately at his attackers to drive them away. When Rafael and Casiano were hit, their
companions fled. Guillermo Esperanza and Sulpicio then got down from the burning house and left, passing by
the prostrate bodies of the decedents. Sulpicio proceeded to the house of one Pedro Esperanza to drink water
and while there, he saw a jeep coming loaded with policemen, to whom he surrendered himself and his carbine.
Expectedly, Guillermo Esperanza gave the same version as above-narrated.
Said appellant's version cannot be accepted. The autopsy reports contradict Sulpicio's claim that he shot the
decedents frontally while he was up in his house. For both deceased each sustained a gunshot wound directly at
the back. Moreover Casiano's wound of entry located along the 12th rib is lower than the wound of exit -
located along the 6th rib 6 showing that the bullet flight path was upwards, not downwards. A gun fired from
the elevated flooring 7 of a house like Sulpicio's, and aimed downwards, could not have caused such wounds.
Lastly, Rafael's cadaver bore a stab wound on the left side. Appellant's version could not account for this.
While on the one hand nothing was found around the burned house of appellant Sulpicio de la Cerna, such as
the alleged cane thrown by Rafael, nor any other weapon or stones which may indicate aggression or violence,
on the other, bloodstains were found inside Demetrio Cabizares' house 8 and also on the ground at the spot
where, according to the prosecution, 9 Casiano fell when shot by Serapio Maquiling. An empty carbine shell
(Exh. I) was also found by Dr. Garcia in the kitchen. In this regard, his testimony is not hearsay, as appellant
contends, for although Dr. Garcia did not personally pick it up, he saw the empty shell taken from the floor and
handed over to his companions before finally reaching him. 10 While Casiano's body was found near Sulpicio's
burned house, even appellant's own witness 11 admitted having found Rafael's body inside Demetrio's house
right after the incidents occurred. Appellant's supposition that Rafael's companions must have returned and
carried away his body can hardly be accepted since there is no reason why they would not also bring back
Casiano's body.
Moreover, we find it hard to believe that Sulpicio, after felling the decedents and dispersing the latter's
companions, would still leave his house when it was not yet totally burned, as he himself admitted. The natural
thing for him to have done were it true that it was decedents who set fire to it - was to put down the fire and
save his house. Anyway his life was no longer in danger.
Lastly, Sulpicio has more reason to resent and kill Rafael than the latter would have as to him. The source of the
possible motive is the same: land trouble between Rafael Cabizares and Sulpicio's father, and the ejectment suit
instituted before the Agrarian Court against the latter by the former. Considering that Rafael was the prevailing
party in the land dispute before the NARRA, it is quite hard to believe that he would be the one entertaining a
grudge against those over whom he had prevailed. Rather, it was the accused, who were defeated and who were
now facing an ejectment suit which was set for hearing, that harbored resentment against the deceased.
Furthermore, all the foregoing considerations fit well into the prosecution's version. We have gone over the
testimonies of the prosecution witnesses and found them credible. That most of them are related to the victims
does not necessarily impair their credibility. 12 Appellants however invite our attention to inconsistencies and
improbabilities allegedly abounding in their testimonies. We shall consider each witness and the testimonies
separately.
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1. Romualdo Cabizares He was with his brother Rafael when the latter was shot near Sulpicio's house and
was among those who brought Rafael to their father's (Demetrio) house 100 meters aways. He did not go up the
house since he had to go back and evacuate his family to a forest 400 meters away. Having done so, he went
back and saw the incidents around Demetrio's house from a place covered with corn plants just 25 meters away.
Appellants point out that his statements on the whereabouts of Conrado Pardillo were inconsistent, leading the
lower court to disbelieve him and acquit Pardillo. We find no inconsistency since Pardillo's going to Rafael's
house with the other accused was after the events in Demetrio's premises had taken place. 13 The lower court
acquitted Pardillo not because it disbelieved Romualdo but rather, taking his testimony as true, the court held
that the facts proved were insufficient to tack criminal liability on Pardillo. 14
This witness was able to observe the events around Demetrio's house. Even if the corn plants were he hid were
sparse, because of the 25-meter distance from the accused whose attentions were focused on Demetrio's house,
and considering that he was in a hidden place 15 while the accused were in the open field, Romualdo could see
them without their noticing him. It is true that the forest where Romualdo took his family was 400 meters away,
but the accused took some time before they followed to Demetrio's house and Romualdo ran back after hiding
his family. 16
2. Margarito Cabizares He was beside his brother Rafael at the hill top when the latter was shot by Sulpicio.
When he tried to hide near some banana clumps, Guillermo Esperanza stabbed him, hitting him near the left
shoulder and causing him to fall unconscious. Shortly later when he recovered consciousness, he followed
Rafael who was being brought to Demetrio's house but he was told by Rafael to save himself so he went to a
forest 400 meters away where he saw the goings-on around Demetrio's house.
Appellants state that nothing much can be gathered from his testimony. However, they overlook the obvious fact
that Margarito was an eyewitness to the shooting of Rafael near Sulpicio's house. Although he lost
consciousness after being stabbed it was momentary only, the wound not being very serious. 17 It was not
impossible for him to have observed activities around Demetrio's house at a distance of 400 meters. Witness
Bonifacio Barro corroborates him on this point. 18 Lastly, he need not be a ballistics expert to recognize
gunshot bursts.
3. Gumercindo Cabizares He was with his father Rafael at the hill top. He warned his father just before
Sulpicio fired the carbine. After Rafael was hit, he helped carry him to Demetrio's house but did not stay there
since he was told by Rafael to go to Dadiangas to call the P.C.
Appellants claim that his testimony regarding a conversation with Juan Cabizares on the way downhill is
contradicted by Juan himself who stated that he was not with those who brought Rafael to Demetrio's house. We
fail to see any contradiction. Juan did not deny having conversed with Gumercindo. And what the latter said
was that after meeting Juan, they went ahead and Juan probably followed behind. 19 We do not think it is
stupidity for a son to warn his father of imminent danger as Gumercindo did - and to come to the latter's aid
despite danger. We prefer to consider such behaviour as "courage under fire."
4. Marcelo Cabizares He was near the bullcart downhill but when he heard gunshots he rushed uphill. There
he helped carry his father Rafael to his grandfather Demetrio's house. After the accused arrived in the latter's
house, the women were ordered to get out. He followed Ursula Cabizares and Felisa Bastismo on the way down
but he was held by Pardillo and boxed by Serapio Maquiling. Still, he was able to escape.
Appellants point out to two statements of his, one wherein he was able to identify all the accused and the other,
wherein he was able to name only four of them, alleging material inconsistency. The statements however
referred to different situations. The first was when all the accused arrived at Demetrio's place, and the second
statement refers to those whom Marcelo Cabizares saw when he came down from the house. 20 He was able to
run away after Serapio Maquiling boxed him because he was freed from the hold of Pardillo and Serapio. 21 On
redirect, he clarified that he left Demetrio's house in the morning. 22
5. Juan Cabizares He also stayed with the bullcart downhill and when he heard gun shots, he went uphill and
saw his father Rafael wounded. He then followed behind the group carrying Rafael to Demetrio's house and
while inside the house, saw the killing of Rafael and Casiano.
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Juan did not lie when he said his father was shot by Sulpicio for altho he did not see the actual shooting, he had
good reasons to conclude that Sulpicio fired the shot since he saw the latter, shortly after the shooting holding
the carbine which was still pointed at Rafael. 23 Any way, his testimony on the point is merely corroborative of
the others who were eyewitnesses. He was able to identify Serapio Maquiling as the one who first shot his
father in Demetrio's house although Serapio was behind the bamboo partition, since there were openings in it
enabling one to see thru and he peeped thru it. 24 The measurements in the third room (3m X 4m) are
compatible with Juan's statement that Sulpicio was 1-1/2m away from Rafael when the third shot was fired
since Sulpicio did not go inside the room but fired from the window outside. 25 Juan was competent to testify
on what occurred outside the house since he was also peeping thru the slits in the bamboo walls. 26
6. Felisa Bastismo She is the mother of Rafael Cabizares. She was with Ursula Cabizares and Segundino
Cabizares inside Demetrio's house when the wounded Rafael was brought in. After Rafael's wounds were
washed, Felisa went down from the house with Ursula, as ordered by the accused. And in the corn fields nearby
she witnessed the killing of Casiano.
Appellants make much of Felisa's testimony referring to Rafael's "wounds" when he was brought in the house,
and argue that Rafael had been shot at least twice already. But Felisa did not examine the wound of Rafael.
Neither did she state how many wounds he had. The substance of her testimony is only that Rafael was
wounded when he arrived. As to the impossibility for the stones to go thru the broken window shutter (Exh. K),
Felisa admitted that she merely heard the sound when they fell on the floor. 27 Surely, appellants cannot
seriously contend that one has to see stones going thru the house to know that it is being stoned. Anyway, it is
not impossible for a large stone hurled against a bamboo shutter to cause a hole therein measuring 14" X 1-1/2".
And assuming that such hole appears more to have been cut by a bolo and forced open, Felisa testified that the
accused also thrust their bolos thru the walls. 28
It is not impossible for Felisa to have seen Casiano's shooting for she lay flat on the ground after having
witnessed it already. 29 She also explained why she was alone in the corn field although she left the house
together with Ursula. Being 76 years old, she was slower than Ursula, and she stumbled while fleeing so she
was able to reach up to the corn fields only. 30 As to Juan's arrival, the testimonies of the other witnesses are
uniform that the group carrying Rafael arrived in Demetrio's house first and Juan, who followed behind, arrived
afterwards. 31 Juan corroborates Felisa that he helped carry Rafael to the third room. 32 Marcelo probably
noticed Juan only after Rafael had been brought to the third room, leading him to say that Juan arrived after
Rafael was brought there. 33
7. Ursula and Segundino Cabizares Both were in Demetrio's house with Felisa Bastismo. They saw the
arrival of the accused and the stoning and thrusting of bolos thru the wallings. One of the bolos wounded
Segundino Cabizares on the left thigh Ursula Cabizares hid in a palay container but when they were ordered to
get out, she and Felisa Bastismo left and returned later in the afternoon.
While Ursula was evidently mistaken when she said that Margarito was also in the house, the error is
immaterial. Contrary to appellants' contention, she saw Serapio Maquiling on her way down from the house. 34
As to whether the other accused besides appellant Antonio Bautista were armed with bolos, she stated that she
did not know since she only saw the bolo tips penetrating thru the wallings. 35 Her positive statement that she
saw appellant Godofredo Rotor 36 prevails, of course, over the negative testimony of Maximo Caa.
Appellants argue that since Segundino Cabizares was fearful, he could not have been moving inside the
besieged house of Demetrio, peeping every now and then thru the openings in the walls and observing the
accused. They seem to forget however that different people react differently even when apprehensive. Thus,
Segundino's restlessness inside the house is neither unnatural or ridiculous to believe.
8. Bonifacio Barro He was with Fiscal Daproza and Sgt. Paladin inside Demetrio's house a few days after
February 3, 1958 and upon orders of the Fiscal, he took out part of the flooring (Exh. K), the bamboo slatch
(Exh. L and L-1) and the stones Exhs. M, M-1 and M-2).
His statement that Exhs. M, M-1 and M-2 were some of the stones Fiscal Daproza found on the roof of
Demetrio's house corroborates the other prosecution witnesses who testified that the accused stoned the house.
He also stated that there were other stones inside the house, corroborating Romualdo Cabizares. 37
9. Dr. Bienvenido Garcia As Municipal health officer, he performed the autopsy on Rafael and Casiano
Cabizares on February 3, 1958. He found Casiano's body near the burned house of Sulpicio de la Cerna, and
224
Rafael's, inside Demetrio's house. In the latter house, he also saw a bullet hole on the floor (Exh. J-1) and a
carbine shell (Exh. I).
Appellants would cavil on Dr. Garcia's statement that he saw Exh. J (part of the flooring) only in court. What he
said however was that he saw it as cut already from the floor only in court. 38 His statements as to the room
dimensions (3-4m X 4-5m) and the distance of Rafael's body to the partition (1 m or 2 ft.) are approximations
only and not exact measurements. 39 A difference of a few insignificant meters is to be expected. Lastly, his
statement that the bullet hole (Exh. J-1) was on the floor coincides with Barro's testimony that Exh. J was cut
from the flooring. 40
From all the foregoing, it is apparent that the so-charged inconsistencies and improbabilities in the testimonies
are without substantial and significant basis. Hence, the lower court's findings should stand, especially since
they involved an appreciation of the evidence and credibility of the witnesses.
"Q. After wound No. 1 was inflicted, is it possible that Rafael Cabizares was still alive?
A. Rafael Cabizares was still alive.
Q. After inflicting wound No. 2, is it possible that Rafael Cabizares was still alive?
A. He was still alive.

We now proceed to the criminal liability of the appellants.
Q. When wound No. 3 was inflicted, was he still alive by your conclusion?
The killing of Rafael Cabizares was attended by treachery. Appellant Sulpicio contends that the first shot, fired
by him, was not attended with treachery since there is evidence that Rafael was warned by his son Gumercindo
just before he was hit in the lower abdomen. 41 However, even assuming the argument to be tenable, the second
shot, by Serapio Maquiling, was definitely treacherously fired since Rafael was then in the third room of
Demetrio's house, wounded and defenseless. The treachery here has to be independently considered due to the
sufficient lapse of time 42 from the first shot, in which the following events intervened: (1) the bringing of
Rafael to Demetrio's house 100 meters away after being hit; (2) the washing of his wounds and his being
brought to the third room to rest; (3) the arrival of the accused and their ordering the two women to get out. It
was only after the women left that Serapio climbed up the kitchen and fired the second shot at Rafael.
Appellant Sulpicio is chargeable for the treacherous shooting of Rafael by Serapio Maquiling since both were
acting as co-conspirators pursuant to their understanding in the meeting held the day before in Andres Abapo's
house, as will be shown presently. Anyway, the third shot, fired by Sulpicio, was treacherously done. Rafael was
then flat on the floor and although still alive, was completely defenseless, having been shot twice already The
portion of Dr. Garcia's testimony 43 cited by appellants shows that Rafael died after the third shot hit him
A. He was dead.
Q. What makes you conclude that he was already dead when wound No. 3 was inflicted?
A. Because wound No. 3 is mortal"
thus corroborating Juan Cabizares' testimony that his father was still alive after the second shot wounded him.
Evident premeditation was also present in this case. The previous plan to kill Rafael Cabizares was testified to
by witness Maximo Caa who was present in the meeting of February 2, 1958, in the house of Andres Abapo.
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Of the many persons present, he recognized only appellants Sulpicio de la Cerna, Antonio Bautista, Severino
Matchoca and Serapio Maquiling. Bautista told the group that the purpose of the meeting was to plan the killing
of Rafael Cabizares. Then both he and Serapio Maquiling signified their willingness to execute it. Appellant
Sulpicio also offered to do it provided his family would be taken care of. To this offer, Bautista and Maquiling
replied that they would take care of Sulpicio's family. Caa testified further that none of those attending voiced
out any objection but all agreed to the plan. Caa was also present in the early morning of February 3, 1958,
when Matchoca, accompanied by Bautista, gave the magazine of bullets to Godofredo Rotor. He was likewise
with the accused when Rafael was shot at the hill top, and when he (Rafael) and Casiano were killed in
Demetrio's place.
Esperanza, who is the father-in-law of Serapio Maquiling, Caa was only constrained to testify falsely when he
was bribed by Rafael's widow, Hospicia Cabizares, sometime in August, 1958. This pretense can not be
believed since a month prior to that, or on July 28, 1958, Caa had already executed an affidavit (Exh. V)
incriminating the appellants. It also appears highly improbable for Rafael's widow to go to the house of a
relative of the accused and in his presence openly bribe Caa, a resident therein. Lastly, it is hard to believe that
although Gaudencio Esperanza knew of this incident, he told the defense counsel about it only after Caa had
already testified for the defense and had been incarcerated to face a charge of perjury. 50 The impulse of a man
similarly situated would have been to relate such matter at once to his accused relatives. Gaudencio's failure to
do so makes of his story a worthless fabrication.
However, one year and ten months after he had testified for the prosecution, witness Caa was presented as a
defense witness. As such, he completely retracted on his previous testimony, explaining that all what he had
stated was false since he was not in Tupi on February 2 and 3, 1958. Gaudencio Esperanza, presented to
corroborate him, testified that in August, 1958, Hospicia Cabizares, widow of Rafael, went to the former's house
where Caa was staying, and gave the latter P50.00 to testify falsely for the prosecution. On rebuttal, Hospicia
Cabizares denied this. 44
There being a previous direct conspiracy one day before the killing, evident premeditation is duly established.
51 This qualifying circumstance is further buttressed by the following actuations of appellant on February 3,
1958: (1) Upon seeing Rafael near his house, Sulpicio told his companions to get ready since the one they were
awaiting was there already. And then he shot at Rafael. (2) As Rafael was being brought to Demetrio's house,
Sulpicio ordered his companions to burn his house so they would have an excuse already. (3) With the other
appellants, he pursued the wounded Rafael to Demetrio's house where after they had stoned the same and thrust
their bolos thru its wallings, they ordered the women folk to leave lest they be killed also; and (4) after Serapio
had already shot at Rafael, Sulpicio still fired a third shot, finally killing Rafael. All these overtly show
appellant's determination to end Rafael's life. The killing, therefore, was properly qualified as murder.
We have thus two sets of testimonies by Caa, completely at variance with each other. Now the rule is that mere
retraction by a prosecution witness does not necessarily vitiate the original testimony otherwise credible. 45 The
proper thing for the trial court to do is to weigh and compare both testimonies. Here, the lower court, after
having done so, accepted Caa's testimony for the prosecution. In this, it did not err.
Firstly, the original testimony is positive and replete with details, and Caa withstood a long and thorough
cross-examination which could not have been so, if the story were merely fabricated. Secondly, Caa's narration
of the shooting incident was fully corroborated by the other prosecution witnesses. Lastly, the charged
inconsistencies and improbabilities therein are too insignificant to affect the substance thereof.
On the other hand, in his subsequent testimony, 46 Caa was evasive and most of his answers were: "I don't
remember" or "I don't know". His statement that he was in Marbel on February 2 and 3, 1958 is not only
uncorroborated but even contradicted by two prosecution witnesses who saw him with accused on February 3,
1958. 47 Caa was also insincere, claiming that his conscience bothered him greatly but he admitted that he
could not sleep only in the mornings 48 and notwithstanding the serious predicament he was in - because of the
inconsistent statements made in open court - he was even smiling. 49 Moreover, according to Gaudencio
However, appellant Sulpicio cannot be held liable for the killing of Casiano Cabizares, notwithstanding a
conspiracy between him and Serapio Maquiling. The conspiracy was to kill Rafael only and no one else.
Nothing was said or agreed upon about the members of Rafael's family. In fact, in executing their plan
appellants let the two women inside Demetrio's house leave unhurt and they did no harm to the remaining
companions of Rafael in the house. Their target was solely Rafael Cabizares. And the rule has always been that
co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the
contemplation of the co-conspirators or which are not the necessary and logical consequence of the intended
crime, only the actual perpetrators are liable. 52 Here, only Serapio killed Casiano Cabizares. The latter was not
even going to the aid of his father Rafael but was fleeing away when shot.
Although Serapio got the carbine from Sulpicio, the latter cannot be considered a principal by indispensable
cooperation or an accomplice. There is no evidence at all that Sulpicio wa aware Serapio would use the rifle to
kill Casiano. Presumably, he gave the carbine to Serapio for him to shoot Rafael only as per their agreement.
Neither is there concrete proof that Sulpicio abetted the shooting of Casiano. Sulpicio might have been liable if
226
after the shooting of Rafael, Serapio returned the carbine to him but upon seeing Casiano fleeing, immediately
asked again for the carbine and Sulpicio voluntarily gave it to him. Serapio's criminal intention then would be
reasonably apparent to Sulpicio and the latter's giving back of the rifle would constitute his assent thereto. But
such was not the case. Sulpicio, therefore, must be acquitted for the killing of Casiano Cabizares.
Appellants Godofredo Rotor, Antonio Bautista, Severino Matchoca and Teodoro Libumfacil all put up alibi as
their defense. This the trial court rejected but it held them liable as accomplices only, finding reasonable doubt
on their guilt as co-principals. Appellants would again advance their respective alibis here.
Appellant Rotor claims that at dawn on February 3, 1958, he went alone to the spring in Barrio Cebuano to
fetch water and after staying awhile there, started back home. On the way back, his mother met him and told
him not to go home because of an incident (the killing of the decedents) so he went instead to Simeon Navaja's
house and stayed there until February 18, 1958.
The prosecution, however, proved that in the early morning of February 3, 1958, Rotor was with Maximo Caa
fetching water in the spring. On their way home, they met appellants Bautista and Matchoca. The latter gave
Rotor a carbine magazine with bullets, saying: "Here is the magazine of the bullets and give it to Sulpicio de la
Cerna." And appellant Bautista said: "Please hurry. Give it to Sulpicio de la Cerna because we will follow later
on." Shortly afterwards, Caa went with him to Sulpicio's house where he gave the magazine to Sulpicio,
saying: "Here are some bullets supposed to be given to you." 53
Rotor was seen outside downstairs of Sulpicio's house later that morning by Margarito and Gumercindo
Cabizares. After Sulpicio had fired at Rafael, Rotor got the pistol from appellant Libumfacil and fired also at
Rafael. 54 This appellant was also seen by Romualdo, Ursula and Segundino Cabizares as among those who
arrived at Demetrio's house. 55 When Ursula Cabizares alighted from the house, she saw Rotor outside holding
a pistol which he gave to Libumfacil commencing that it was stuck. 56 After the killing of the decedents,
Romualdo Cabizares saw him with the group following the cadaver of Casiano Cabizares which was being
brought near Sulpicio's burned house. 57
In the face of the overwhelming positive identification of six prosecution witnesses, Rotor's uncorroborated
alibi must fail. Although he was not present or did not participate in the meeting of February 2, 1958, his
presence in the situs of the shootings on February 3, 1958 was not merely passive. His active participation shooting at Rafael carrying a pistol - which has a direct connection with the criminal design against Rafael
Cabizares makes him a principal by indirect conspiracy, not an accomplice only. Motive is not wanting. Rotor
admitted that his wife is the sister of Sulpicio's wife 58 and the evidence shows that his father had a land
disputed with Rafael Cabizares and was a respondent in the case before the Agrarian Court. 59
Appellant Bautista claims that on February 2, 1958, he left Barrio Cebuano for Tupi (5 kms. away) to get a
truck to load his corn. That afternoon, he returned to Cebuano where they loaded corn but he could not return to
Tupi as the truck would not start, so he slept at home. Early the next day, February 3, 1958, they pushed the
truck to start it. Later, appellant Matchoca arrived and helped them. He also rode in truck but upon reaching an
uphill road, it stopped again. They were able to recharge its batteries from a tractor that happened to pass by.
They continued the trip and finally arrived in the poblacion of Tupi at about 8:00 A.M. Several months later,
while he was at Sergio Rotor's house, his child told him that a P.C. soldier was waiting at home, so instead of
going home, he had a conference with Andres Abapo, Ramon Alquizar, Roberto Matchoca (son of Severino)
and Agapito Avellana. They all decided to proceed to Tupi and surrender to the Mayor.
Appellant Matchoca related the same incident told by Bautista regarding the trip to Tupi. He then claimed to
have returned to Barrio Cebuano about noontime and there learned of the incident. The next day, he evacuated
his family to avoid trouble.
The prosecution however has established that these two appellants were in the meeting held in Abapo's house on
February 2, 1958. They openly participated therein. Their meeting with appellant Rotor early the following
morning has also been established thru the testimony of Maximo Caa.
These two were also seen outside Sulpicio's house. Bautista was carrying a bolo and a cane and was heard
shouting at Rafael thus: "Rafael, you cannot reach the trail because we will kill you." 60 Gumercindo Cabizares
also heard Matchoca shouting: "Go ahead, shoot. We will kill him so that he will not reach the day of the
hearing." 61
Bautista and Matchoca were among those who went to Demetrio's house. 62 The former thrust his bolo thru the
bamboo wallings hitting Segundino Cabizares. 63 When Ursula Cabizares came down from the house, she saw
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Bautista holding a bolo. 64 Romualdo, on the other hand, claimed having seen him holding a firearm. 65 After
the killings had taken place, Bautista went with the group that proceeded back to Sulpicio's burned house
whereas Matchoca marched with the other group headed for Rafael's house. 66
The positive identification of the several prosecution witnesses must prevail over the alibis proffered by these
appellants. Their presence and active participation in the meeting in Abapo's house make them actual
conspirators in the killing of Rafael. They were also present and zealously participating in the execution of their
criminal design, giving a carbine magazine and instructions to appellant Rotor, threatening Rafael and giving
encouragement to Sulpicio to shoot at the latter. They were among those who laid siege to Demetrio's house and
left together with the others after finally accomplishing their criminal deeds as agreed upon. Appellants Bautista
and Matchoca are therefore also liable as co-principals in Rafael's murder. Regarding motive, it was proved that
both were among those involved in the land conflict with Rafael Cabizares and were among the respondents in
the case before the Agrarian Court.
Appellant Libumfacil's story is that in the morning of February 3, 1958 he was in the Menzi Area about 6
kilometers from Barrio Cebuano. That afternoon, he returned to the poblacion of Tupi. To corroborate him,
Lauro Esconde started that he saw Libumfacil that day working on the latter's farm lot in the Menzi area.
Sulpicio's house and in the premises of Demetrio's house with the other accused and appellants. He was armed,
had fired at Rafael also, and took part in the stoning of Demetrio's house where Rafael was brought. His
actuations manifest that he was aware of the criminal design of the original conspirator's, that he approved of it
and carried it out, thus showing that his presence at the scene of the crime was not merely passive.
Consequently, he is a co-principal in Rafael's murder. And motive is not wanting. It was established that his
mother had a land conflict with Rafael 73 and that his step-father Diosdado Esperanza was one of the
respondent in the case before the Agrarian Court.
We find therefore all five appellants guilty as co-principals in the murder of Rafael Cabizares.
The aggravating circumstance of treachery, applicable against appellant Sulpicio de la Cerna only, is offset by
his voluntary surrender after the incident. This mitigating circumstance however can not benefit the remaining
appellants who did not voluntarily surrender. For all the appellants, therefore, the penalty for Rafael Cabizares'
murder must be imposed in the medium period. For the killing of Casiano Cabizares, appellant Sulpicio de la
Cerna must be acquitted.
Wherefore, the judgment appealed from is modified as follows:

However, Maximo Caa saw appellant Libumfacil outside Sulpicio's house when the former arrived there with
appellant Rotor in the morning of February 3, 1958. Libumfacil has a pistol which he also fired at Rafael. 67
Gumercindo Cabizares also saw him holding a pistol which he gave to Rotor who then took a shot at Rafael. 68
Appellant Libumfacil was seen by Caa again among those who went with the other accused downhill from
Sulpicio's house to Demetrio's house. 69 The other prosecution witnesses saw him also around Demeterio's
house, armed with a pistol. 70 He was among those who stoned the house. 71 When Ursula Cabizares alighted
therefrom, she saw appellant Libumfacil outside, conversing with Rotor and receiving from the latter a pistol
which had gotten stuck. After the incidents in Demetrio's house, Libumfacil went with appellants Rotor and
Bautista to Sulpicio's burned house. 72
(a) Appellants Sulpicio de la Cerna, Godofredo Rotor, Antonio Bautista, Severino Matchoca, and Teodoro
Libumfacil are hereby found guilty as principals for the murder of Rafael Cabizares and sentenced to each
suffer reclusion perpetua, to indemnify, jointly and severally, the heirs of Rafael Cabizares the sum of P6,000.00
and to pay the costs;
(b) Appellant Sulpicio de la Cerna is hereby acquitted for the murder of Casiano Cabizares.
So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Angeles and Fernando, JJ.,
concur.
||| (People v. Sulpicio de la Serna, G.R. No. L-20911, [October 30, 1967], 128 PHIL 605-631)
Libumfacil's alibi, though corroborated, cannot overcome the positive identification of the eight prosecution
witnesses who saw him. Although he was not present in Abapo's house on February 2, 1958, he was present in
228
The Supreme Court ruled that the trial court correctly upheld the prosecution's case. The fact that the
prosecution witnesses were the victim's daughter and sister respectively does not necessarily impair their
integrity as credible witnesses. Moreover, while there are some differences in the testimony of Rosalie Estao in
open court with sworn statements she gave to the police, these inconsistencies were minor and trivial matters
and would rather strengthen the credibility of her testimony. In view of this, the Court affirmed appellant's
conviction for murder and the penalty of imprisonment including the pecuniary liabilities imposed thereto.
THIRD DIVISION
SYLLABUS
[G.R. No. 117402. July 21, 1997.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLLIE ALVARADO Y LLANER, accused-appellant.
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; TRIAL COURT'S ASSESSMENT

THEREOF GIVEN HIGHEST RESPECT ON APPEAL. This is another occasion to stress anew that the trial
court, more than the reviewing tribunal, is in a better position to gauge credibility of witnesses and to properly
appreciate the relative weight of the often conflicting evidence for both parties, having had the direct
opportunity to observe them on the stand and determine if they were telling the truth or not. And since appellate
courts do not deal with live witnesses but only with the cold pages of a written record, this Court gives the
highest respect to the trial court's assessment of the credibility of eyewitness. We have gone over the records
and found that the trial court correctly upheld the prosecution's case.
SYNOPSIS
At around 6:30 in the evening of May 26, 1991, Zosimo Estao was stabbed dead by one of five (5) men who
arrived at his house located at Andromeda, Municipality of Angono, Rizal. An information for murder qualified
by treachery and evident premeditation was filed against herein appellant Rollie Alvarado and four others
whose whereabouts were unknown. As his co-accused, all remained at large, only appellant underwent trial.
After the trial, the lower court rendered a decision on January 7, 1994 convicting herein appellant of murder and
sentenced him to suffer the penalty of reclusion perpetua. Thereafter, herein appellant elevated this case to the
Supreme Court.
2. ID.; ID.; ID.; POSITIVE IDENTIFICATION OF ACCUSED BY WITNESSES GIVEN GREATER

WEIGHT THAN ACCUSED'S DENIAL; CASE AT BAR. Well settled is the rule that greater weight is
given to the positive identification of the accused by the prosecution witnesses than the accused's denial and
explanation concerning the commission of the crime. This is so inasmuch as mere denials are self-serving
evidence that cannot obtain evidentiary weight greater than the declaration of credible witnesses who testified
on affirmative matters.
3. ID.; ID.; ID.; RELATIONSHIP TO VICTIM DOES NOT NECESSARILY IMPAIR CREDIBILITY; CASE
AT BAR. Mere relationship of witnesses to the victim, whether by consanguinity or affinity, does not
necessarily impair their credibility as witnesses. This is specially so when the witnesses, like Rosalie and
Leonora, were present at the scene of the crime. Another way of putting it is that relationship per se of witnesses
with the victim does not necessarily mean they are biased; on the contrary, their relationship with the victim
would deter them from implicating anybody to the crime. Furthermore, the records do not provide any
compelling answer as to why Rosalie and Leonora would falsely accuse appellant. Equally settled is that where
there is no evidence, and nothing to indicate that the principal witnesses for the prosecution were actuated by
229
improper motive, the presumption is that they were not so actuated and their testimony is entitled to full faith
and credit.
were being held by appellant's companions before he was stabbed by appellant. Granting that abuse of superior
strength was also alleged, it is nonetheless absorbed in treachery.
4. ID.; ID.; ID.; SHOCKING EXPERIENCE USUALLY DISTORTS NORMAL PATTERN OF BEHAVIOR;
CASE AT BAR. Assuming that Rosalie indeed failed to recognize appellant at the Angono hospital and
named another person as her father's assailant, it could nonetheless be explained by the fact that she was at that
time not in her normal equanimity being in a state of shock of grief over her father's violent and untimely
death. As this Court has once said, it is not a common experience for a person to witness the perpetration of an
atrocious crime. The shocking experience usually distorts his/her normal pattern of reaction. Thus, Rosalie's
mistake in identifying another person as one of the accused does not make her an entirely untrustworthy
witness. It does not make her whole testimony a falsity. An honest mistake is not inconsistent with a truthful
testimony. Besides, what is controlling is Rosalie's in-court identification of appellant, duly corroborated by
Leonora, as the person who delivered the death blow on Zosimo.
8. ID.; PENALTIES; RECLUSION PERPETUA IS AN INDIVISIBLE PENALTY THAT IS IMPOSED IN ITS

ENTIRETY. In "People v. Lucas" dated January 9, 1995, it was clarified that "although Section 17 of R.A.
No. 7659 has fixed the duration of reclusion perpetua from twenty (20) years and one (1) day to forty (40)
years, there was no clear legislative intent to alter its original classification as an indivisible penalty. It shall then
remain as an indivisible penalty." Reclusion perpetua, therefore, retains its nature as having no minimum,
medium and maximum periods. It is imposed in its entirety regardless of any mitigating or aggravating
circumstances that may have attended the commission of the crime.
5. ID.; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; MATTER OF DECIDING WHOM TO

PRESENT AS WITNESS IS THE PREROGATIVE OF THE PROSECUTOR; CASE AT BAR. It is not for
the defense to press any speculation that a certain person not presented by prosecution would likely be the most
credible witness to bolster the case of the state. Suffice it to state that the matter of deciding whom to present as
witness for the prosecution is not for the accused or for the trial court to decide, as it is the prerogative of the
prosecutor.
6. ID.; EVIDENCE; CREDIBILITY OF WITNESSES; NOT NECESSARILY DISCREDITED BY

DISCREPANCIES BETWEEN AFFIDAVITS AND TESTIMONIES AT THE WITNESS STAND; REASON.
Discrepancies between sworn statements or affidavits and testimonies made at the witness stand do not
necessarily discredit the witnesses, since ex-parte affidavits are generally incomplete.
7. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; TREACHERY, ABUSE OF SUPERIOR

STRENGTH QUALIFIES KILLING TO MURDER IN CASE AT BAR. We, however, take exception to the
trial court's pronouncement that what qualified the killing of Zosimo to murder is the aggravating circumstance
of abuse of superior strength. As earlier mentioned, the information alleged "treachery and evident
premeditation," not abuse of superior strength. It is the existence of treachery which qualifies the crime to
murder since Zosimo was killed after already being in a helpless condition, it appearing that Zosimo's hands
DECISION
FRANCISCO, J p:
At around 6:30 in the evening of May 26, 1991, Zosimo Estao was stabbed dead by one of five (5) men who
arrived at his house located at Andromeda, municipality of Angono, Rizal. An information for murder qualified
by treachery and evident premeditation was thereafter filed against herein appellant Rollie Alvarado and four
(4) others whose true names and whereabouts were unknown. As his co-accused all remained at large, only
appellant underwent trial.
From the collective testimonies of victim Zosimo's wife Felicidad Estao 1 daughter Rosalie Estao 2 and sister
Leonora Arocha, 3 the prosecution's version of the killing was that on the aforementioned time, date and place
and while Felicidad and Zosimo were doing certain household chores, appellant and his four (4) companions
arrived and hurled the following challenge on Zosimo: "Lumabas ka, kalbo, kung matapang ka." As soon as
Zosimo has gotten out of their house, appellant's companions held him on both arms. Rosalie who was riding a
bicycle and Leonora who was in her house which was only three (3) meters away from Zosimo's residence, saw
appellant stab the helpless Zosimo on the stomach with a bolo which caused the latter to fall on the ground. One
Joselito dela Cruz, Zosimo's friend who tried to pacify appellant, was likewise stabbed on the stomach. Zosimo
was thereafter rushed to the Angono District Hospital but he expired before reaching it. At the hospital, Rosalie
saw appellant who she identified to the policemen present as her father's assailant.
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The prosecution presented two (2) other witnesses. Zosimo's brother Paulito Estao testified on the funeral
expenses amounting to P17,000.00 he shouldered. 4 Dr. Dario Gajardo, who performed the post mortem
examination of Zosimo, testified that as per his findings, Zosimo's body bore a wound on the left ear and a fatal
stab wound on the right lumbar region caused by a single bladed weapon the trajectory of which, was "upward
toward the posterior portion of the body . . ." 5
Appellant, as defense, denied any involvement in the killing and averred that he likewise was a victim in the
incident in question. In brief, he claimed that he was on his way to the house of an aunt after taking a snack at a
store in Arveemar Subdivision when he saw a commotion involving two (2) drunk persons armed with bolos
chasing each other. Appellant tried to ignore the incident by proceeding with his journey, but found himself
running away after noticing one of the drunk men giving chase on him. He was hacked on the left foot by his
pursuer whom he identified as one "Pacing", Zosimo's brother-in-law. Appellant was thereafter brought by his
relatives to the Angono hospital but was transferred to the Orthopedic hospital on that same evening. He came
to know that he was a suspect in the killing of Zosimo when policemen were already guarding him at both
hospitals. He was immediately brought to the police station after his discharge. Despite Pacing's assault on his
person, he did not file any case against the former. Appellant also denied having any previous acquaintance with
the victim Zosimo and his wife Rosalie Estao, and claimed that he was being implicated to the crime simply
because some of the other suspects were admittedly his friends. 6
matter as he deemed it proper to leave it entirely to investigator Edmund Lorena who, after all, was also present
at the hospital and personally heard all of Rosalie's statements. He testified for the defense upon the invitation
of appellant and his counsel Atty. Diloy. 8
The last witness for the defense was Walter Nuyda. Prior to his testimony, the prosecution, apparently
questioning the propriety of Nuyda being allowed to testify, made manifest the fact of the presence in court of
this witness during the past hearings despite Fiscal Venzon's queries whether there were other witnesses present
to which defense counsel replied "none". The trial court nonetheless allowed Nuyda to take the witness stand.
Nuyda, who brought along a sketch of where the killing took place for reference, thus testified that while he was
taking a walk homeward bound, he heard two (2) women shouting "Namatay na si Sadam." "Sadam" referred to
the victim Zosimo as the latter was allegedly known to be a trouble-maker when inebriated. He allegedly saw
appellant walking naturally and Rosalie riding a bicycle already crying, at around 6:00 in the evening, but
denied having seen the actual killing of Zosimo. 9 cdtai
Having found the prosecution's story specifically the eyewitness accounts of Rosalie and Leonora to be
more credible than appellant's denial, the trial court in its now assailed decision of January 7, 1994 convicted
appellant of murder, sentenced him to suffer the penalty of reclusion perpetua and to pay Zosimo's heirs
P17,000.00 as actual damages, P50,000.00 for Zosimo's death and costs.
Before us, appellant assigns the following errors, the gist of which evidently goes into credibility:
Rafael Velasco, a laborer-friend of appellant, essentially corroborated the latter's story of denial and as to the
circumstances surrounding appellant's hacking by "Pacing", having viewed the incident some twenty (20)
meters away from a top the wall near the river situated between Arveemar Subdivision and Phase III of Doa
Justa Village, Angono Rizal. He, however, was not among those who brought appellant to the hospital as he was
to visit a friend at that time. 7
PO3 Edgar Fetalvero, one of the responding policemen present at the Angono hospital, testified that Rosalie
mentioned the name "Sonny Alvarado" upon being asked who her father's assailant was. Furthermore, when
Rosalie was accompanied to the operating room where appellant was staying and asked to identify the suspect,
she said she does not know the wounded patient. This witness admitted not having executed any affidavit on the
II
"The court a quo grave erred in finding accused-appellant Rollie Alvarado guilty of murder beyond reasonable
doubt despite insufficiency of evidence and also in disregarding the theory of the defense.
231
"The court a quo gravely erred in giving weight and credence to the testimony of the prosecution witnesses
which are biased and unreliable."
"A I could recognize only one of them, sir.
"Q Now, how many were holding at your father?

This is another occasion to stress anew that the trial court, more than the reviewing tribunal, is in a better
position to gauge credibility of witnesses and to properly appreciate the relative weight of the often conflicting
evidence for both parties, 10 having had the direct opportunity to observe them on the stand and determine if
they were telling the truth or not. 11 And since appellate courts do not deal with live witnesses but only with
the cold pages of a written record, 12 this Court gives the highest respect to the trial court's assessment of the
credibility of eyewitness. 13 We have gone over the records and found that the trial court correctly upheld the
prosecution's case.
Rosalie positively identified appellant in open court as the one among the five (5) men who stabbed her father
Zosimo. She thus testified:
"A Four (4), sir.
"Q How about the fifth one?
"A He was the one who stabbed my father, sir.
"Q Now, this person who stabbed to (sic) your father, do you know him.
"FISCAL ANG:
"A Yes, sir.
"Q And can you tell us how was your father challenged?
"Q Now, is he in Court?
"A They were shouting at him, sir.
"A Yes, sir.
"Q And after your father came out of your house, what happened next?
"Q Will you please point that person if he is in Court?
"A He was pulled out by the man and they stabbed him
INTERPRETER:
"Q Now, you said that he was pulled by the man, how was he pulled and who pulled at your father?
232
The witness is pointing at a man wearing a white shirt, who identified himself as Rollie Alvarado.
"A Yes sir.
"Q Now, Miss Witness, how (sic) the accused Rollie Alvarado stabbed your father?
"Q Now, if you will see the faces, will you be able to recall who they are?
"A While he was being held by the other man he stabbed him on the left side of the stomach.
"A Yes, sir.
"Q Now, what kind of weapon did he use?
"Q Please point to the person on this room if any of the 5 persons is here in the Court room.
"A Bolo, sir." 14
Leonora corroborated Rosalie's story by giving a similar account:
"Q Now, you said many persons went to your place, can you recall who went to see your brother, can you recall
who were they?
"A. Yes, sir.
"Q Who are they?
"A They were Rollie Alvarado, Jun, Sammy also the brother of Rollie Alvarado, they were five of them, I could
no longer recall the name of the rest.
"Q So you were able to recall only 3 of the 5?
"A (Witness pointing, to a man wearing a white shirt and maong pants, who identified himself as Rollie
Alvarado.)
"Q After the 5 persons went to your house and call your brother and challenged your brother, what happened
next?
"A He was held by the 4 companion of Rollie Alvarado and he was stabbed by Rollie Alvarado.
"Q When you say he, you mean Zosimo Estao?
"A The one who stabbed Zosimo Estao.
"Q Now, to clarify, correct me if I am wrong, your brother Zosimo Estao was retrained by 4 persons and after
which Rollie Alvarado stabbed your brother, am I correct?
233
"A Yes, sir.
Appellant would, however, attempt to undermine the prosecution's case by claiming that:
"Q Now, how was your brother retrained by these 4 person (sic)?
1) Rosalie and Leonora are unreliable and biased witnesses as they are the daughter and sister respectively, of
victim Zosimo,
"A He was held by the 4 men on both sides. Two on each sides hold on the arms and shoulder.
2) Rosalie failed to identify appellant at the Angono hospital and in fact mentioned another name "Sonny
Alvarado" as testified to by defense witness PO3 Fetalvero, and
"Q So your brother was not able to move whatsoever?
"A No, sir.
"Q And was not able to defend himself at any thrust if any?
"A No more, sir.
"Q After which Rollie Alvarado stabbed your brother?
"A Yes sir." 15
Well settled in the rule that greater weight is given to the positive identification of the accused by the
prosecution witnesses than the accused's denial and explanation concerning the commission of the crime. 16
This is so inasmuch as mere denials are self-serving evidence that cannot obtain evidentiary weight greater that
the declaration of credible witnesses who testified on affirmative matters. 17
3) the prosecution failed to present as its witness Joselito dela Cruz Zosimo's friend who was himself stabbed
in the incident but who fortunately survived who, according to appellant, is the "only credible witness who
could identify the assailants of the victim."
These arguments do not persuade.
On the first argument, the consistent ruling is that mere relationship of witnesses to the victim, whether by
consanguinity or affinity, does not necessarily impair their credibility as witnesses. This is specially so when the
witnesses, like Rosalie and Leonora, were present at the scene of the crime. 18 Another way of putting it is that
relationship per se of witnesses with the victim does not necessarily mean they are biased; on the contrary, their
relationship with the victim would deter them from implicating anybody to the crime. 19 Furthermore, the
records do not provide any compelling answer as to why Rosalie and Leonora would falsely accuse appellant.
Equally settled is that where there is no evidence, and nothing to indicate that the principal witnesses for the
prosecution were actuated by improper motive, the presumption is that they were not so actuated and their
testimony is entitled to full faith and credit. 20
On the second, assuming 21 that Rosalie indeed failed to recognize appellant at the Angono hospital and
named another person as her father's assailant, it could nonetheless be explained by the fact that she was at that
time not in her normal equanimity being in a state of shock of grief over her father's violent and untimely
death. As this Court has once said, it is not a common experience for a person to witness the perpetration of an
234
atrocious crime. The shocking experience usually distorts he/her normal pattern of reaction. 22 Thus, Rosalie's
mistake in identifying another person as one of the accused does not make her an entirely untrustworthy
witness. It does not make her whole testimony a falsity. An honest mistake is not inconsistent with a truthful
testimony. 23 Besides, what is controlling is Rosalie's in-court identification of appellant, duly corroborated by
Leonora, as the person who delivered the death blow on Zosimo.
On the third, it is not for the defense to press any speculation that a certain person not presented by the
prosecution would likely be the most credible witness to bolster the case of the state. Suffice it to state that the
matter of deciding whom to present as witness for the prosecution is not for the accused or for the trial court to
decide, as it is the prerogative of the prosecutor. 24
"We observe that a modification in the penalty imposed on the appellant is called for in view of the amendment
of Article 27 of the Revised Penal Code by Republic Act No. 7659 [1993]. As amended by Section 21 of
Republic Act No. 7659 [1993] and explained by this Honorable Court in People v. Cua, G.R. No. 82292, March
1, 1995, the duration of the penalty of reclusion perpetua shall be from twenty years and one day to forty years.
In view of the fact that the penalty of reclusion perpetua now has a specified duration, a judgment imposing the
penalty of reclusion perpetua should specify a straight penalty within the range of the penalty of reclusion
perpetua. Given the presence of treachery and evident premeditation, any one of which serves to qualify the
crime to murder, we respectfully recommend that the penalty of thirty-four (34) years of reclusion perpetua be
meted out to the appellant." 29
"While there are some differences in the testimony of Rosalie Estao in Court with sworn statements she gave
to the police regarding as to where she is at the time the victim was stabbed, yet the Court feels that the same
are minor matters and would rather strengthened (sic) the credibility of her testimony."
We cannot accede to this recommendation in view of this Court's En Banc Resolution in "People v. Lucas"
dated January 9, 1995 30 where it was clarified that "although Section 17 of R.A. No. 7659 has fixed the
duration of reclusion perpetua from twenty (20) years and one (1) day to forty (40) years, there was no clear
legislative intent to alter its original classification as an indivisible penalty. It shall then remain as an indivisible
penalty". Reclusion perpetua, therefore, retains its nature as having no minimum, medium and maximum
periods. It is imposed in its entirety regardless of any mitigating or aggravating circumstances that may have
attended the commission of the crime. 31
25 Such finding is further supported by the dictum that discrepancies between sworn statements or affidavits
and testimonies made at the witness stand do not necessarily discredit the witnesses, since ex-parte affidavits
are generally incomplete. 26
WHEREFORE, the modification of a particular disquisition made by the trial court notwithstanding (re:
treachery as the qualifying circumstance and not abuse of superior strength), appellant's conviction for murder
and the penalty of imprisonment and pecuniary liabilities imposed on him are hereby AFFIRMED.
We, however, take exception to the trial court's pronouncement that what qualified the killing of Zosimo to
murder is the aggravating circumstance of abuse of superior strength. As earlier mentioned, the information
alleged "treachery and evident premeditation", not abuse of superior strength. It is the existence of treachery
which qualified the crime to murder since Zosimo was killed after already being in a helpless condition, 27 it
appearing that Zosimo's hands were being held by appellant's companions before he was stabbed by appellant.
Granting that abuse of superior strength was also alleged, it is nonetheless absorbed in treachery. 28
SO ORDERED.
This Court will likewise leave undisturbed the following finding of the trial court, that:
Narvasa, C .J ., Davide, Jr., Melo and Panganiban, JJ., concur.

||| (People v. Alvarado y Llaner, G.R. No. 117402, [July 21, 1997], 341 PHIL 725-738)
Lastly, on the issue of penalty, the Office of the Solicitor General makes the following observation and
recommendation:
235
THIRD DIVISION
[G.R. No. 186227. July 20, 2011.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALLEN UDTOJAN MANTALABA, accusedappellant.
Around 7 o'clock in the evening of October 1, 2003, the team, armed with the marked money, proceeded to
Purok 4, Barangay 3, Agao District, Butuan City for the buy-bust operation. The two poseur-buyers approached
Allen who was sitting at a corner and said to be in the act of selling shabu. PO1 Pajo saw the poseur-buyers and
appellant talking to each other. Afterwards, the appellant handed a sachet of shabu to one of the poseur-buyers
and the latter gave the marked money to the appellant. The poseur-buyers went back to the police officers and
told them that the transaction has been completed. Police officers Pajo and Simon rushed to the place and
handcuffed the appellant as he was leaving the place.
The police officers, still in the area of operation and in the presence of barangay officials Richard S. Tandoy and
Gresilda B. Tumala, searched the appellant and found a big sachet of shabu. PO1 Simon also pointed to the
barangay officials the marked money, two pieces of P100 bill, thrown by the appellant on the ground.
DECISION
PERALTA, J p:
For this Court's consideration is the Decision 1 dated July 31, 2008 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 00240-MIN, affirming the Omnibus Judgment 2 dated September 14, 2005, of the Regional Trial
Court, Branch 1, Butuan City in Criminal Case No. 10250 and Criminal Case No. 10251, finding appellant
Allen Udtojan Mantalaba, guilty beyond reasonable doubt of violation of Sections 5 and 11, Article II of
Republic Act (RA) 9165. CEDScA
After the operation, and in the presence of the same barangay officials, the police officers made an inventory of
the items recovered from the appellant which are: (1) one big sachet of shabu which they marked as RMP-1-1001-03; (2) one small sachet of shabu which they marked as RMP 2-10-01-03; and (3) two (2) pieces of one
hundred pesos marked money and a fifty peso (P50) bill. Thereafter, a letter-request was prepared by Inspector
Ferdinand B. Dacillo for the laboratory examination of the two (2) sachets containing a crystalline substance,
ultra-violet examination on the person of the appellant as well as the two (2) pieces of one hundred pesos
marked money. The request was brought by PO1 Pajo and personally received by Police Inspector Virginia
Sison-Gucor, Forensic Chemical Officer of the Regional Crime Laboratory Office XII Butuan City, who
immediately conducted the examination. The laboratory examination revealed that the appellant tested positive
for the presence of bright orange ultra-violet fluorescent powder; and the crystalline substance contained in two
sachets, separately marked as RMP-1-10-01-03 and RMP-2-10-01-03, were positively identified as
methamphetamine hydrochloride.
The facts, as culled from the records, are the following:
The Task Force Regional Anti-Crime Emergency Response (RACER) in Butuan City received a report from an
informer that a certain Allen Mantalaba, who was seventeen (17) years old at the time, was selling shabu at
Purok 4, Barangay 3, Agao District, Butuan City. Thus, a buy-bust team was organized, composed of PO1
Randy Pajo, PO1 Eric Simon and two (2) poseur-buyers who were provided with two (2) pieces of P100
marked bills to be used in the purchase.
Thereafter, two separate Informations were filed before the RTC of Butuan City against appellant for violation
of Sections 5 and 11 of RA 9165, stating the following:
Criminal Case No. 10250
236
That on or about the evening of October 1, 2003 at Purok 4, Barangay 3, Agao, Butuan City, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and
there willfully, unlawfully, and feloniously sell zero point zero four one two (0.0412) grams of
methamphetamine hydrochloride, otherwise known as shabu which is a dangerous drug.
CONTRARY TO LAW: (Violation of Sec. 5, Art. II of R.A. No. 9165). 3
Criminal Case No. 10251
That on or about the evening of October 1, 2003 at Purok 4, Barangay 3, Agao, Butuan City, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and
there willfully, unlawfully and feloniously possess zero point six one three one (0.6131) grams of
methamphetamine hydrochloride, otherwise known as shabu, which is a dangerous drug.
penalty for acts punishable by life imprisonment to death shall be reclusion perpetua to death. As such, Allen
Mantalaba y Udtojan is hereby sentenced to RECLUSION PERPETUA and to pay a fine of Five Hundred
Thousand Pesos (P500,000.00). ScCDET
In Criminal Case No. 10251, the Court likewise finds accused Allen Mantalaba y Udtojan GUILTY beyond
reasonable doubt for illegally possessing shabu, a dangerous drug, weighing 0.6131 gram as defined and
penalized under Section 11, Article II of Republic Act No. 9165 and accused being a minor at the time of the
commission of the offense, after applying the Indeterminate Sentence Law, he is accordingly sentenced to six
(6) years and one (1) day, as minimum, to eight (8) years, as maximum of prision mayor and to pay a fine of
Three Hundred Thousand Pesos (P300,000.00).
SO ORDERED. 6
The CA affirmed in toto the decision of the RTC. It disposed of the case as follows:
CONTRARY TO LAW: (Violation of Section 11, Art. II of R.A. No. 9165). 4
Eventually, the cases were consolidated and tried jointly.
Appellant pleaded NOT GUILTY to the charges against him. Thereafter, trial on the merits ensued.
In its Omnibus Judgment 6 dated September 14, 2005, the RTC found the appellant guilty beyond reasonable
doubt of the offense charged, the dispositive portion of which, reads:
WHEREFORE, the Court hereby finds accused Allen Mantalaba y Udtojan GUILTY beyond reasonable doubt
in Criminal Case No. 10250 for selling shabu, a dangerous drug, as defined and penalized under Section 5,
Article II of Republic Act No. 9165. As provided for in Sec. 98 of R.A. 9165, where the offender is a minor, the
WHEREFORE, the Decision of the Regional Trial Court, Branch 1, Butuan City dated September 14, 2005
appealed from finding the accused-appellant Allen Udtojan Mantalaba guilty beyond reasonable doubt with the
crime of Violation of Section 5 and Section 11, Article II of Republic Act 9165, otherwise known as the
Comprehensive Dangerous Drugs Act, is AFFIRMED in toto, with costs against accused-appellant.
SO ORDERED. 7
Thus, the present appeal.
Appellant states the lone argument that the lower court gravely erred in convicting him of the crime charged
despite failure of the prosecution to prove his guilt beyond reasonable doubt.
237
According to appellant, there was no evidence of actual sale between him and the poseur-buyer. He also argues
that the chain of custody of the seized shabu was not established. Finally, he asserts that an accused should be
presumed innocent and that the burden of proof is on the prosecution.
xxx xxx xxx
Q: Then armed with these marked moneys, what steps did you take next?
The petition is unmeritorious.
A: After briefing of our team, we proceeded immediately to the area.
Appellant insists that the prosecution did not present any evidence that an actual sale took place. However,
based on the testimony of PO1 Randy Pajo, there is no doubt that the buy-bust operation was successfully
conducted, thus:
PROS. RUIZ:
Q: Will you explain to this Honorable Court why did you conduct and how did you conduct your buy-bust
operation at the time?
A: We conducted a buy-bust operation because of the report from our civilian assets that Allen Mantalaba was
engaged in drug trade and selling shabu. And after we evaluated this Information we informed Inspector Dacillo
that we will operate this accused for possible apprehension.
Q: You mentioned of poseur-buyer, what would the poseur-buyer do?
A: We made an arrangement with the poseur-buyer that during the buying of shabu there should be a prearranged signal of the poseur-buyer to the police officer. TSIEAD
Q: What happened when your poseur-buyer who, armed with this marked moneys, approached the guy who was
selling shabu at that time?
A: The poseur-buyer during that time gave the marked moneys to the suspect.
Q: Where were you when this poseur-buyer gave the moneys to the suspect?
Q: Before you conducted your buy-bust operation, what procedure did you take?
A: We positioned ourselves about 10 meters away from the area of the poseur-buyer and the suspect.
A: We prepared the operational plan for buy-bust against the suspect. We prepared a request for powder dusting
for our marked moneys to be used for the operation.
Q: You mentioned of the pre-arranged signal, what would this be?
Q: Did you use marked moneys in this case?
238
A: This is a case-to-case basis, your Honor, in the pre-arrangement signal because in the pre-arranged signal we
used a cap and a towel. (sic) In the case, of this suspect, there was no towel there was no cap at the time of
giving the shabu and the marked moneys to the suspect and considering also that that was about 7:00 o'clock in
the evening. The poseur-buyer immediately proceeded to us and informed us that the shabu was already given
by the suspect.
Q: What did you do next after that?
A: After examining the sachet of shabu that it was really the plastic containing white [crystalline] substance, we
immediately approached the suspect.
Q: Who was with a (sic) suspect when you conducted the buy-bust operation[?] Was he alone or did he had (sic)
any companion at that time?
A: He was alone.
Q: When you rushed up to the suspect what did you do?
A: We informed the suspect that we are the police officers and he has this constitutional rights and we
immediately handcuffed him.
Q: Where were the marked moneys?
A: The marked moneys were thrown on the ground. After we handcuffed the suspect, we did not immediately
searched in. We called the attention of the barangay officials to witness the search of the suspect.
Q: How many sachets of shabu have you taken from the suspect during the buy-bust operation?
A: We took from the possession of the suspect one big sachet of shabu.
xxx xxx xxx
Q: What was the result of the searched (sic) for him?
A: We confiscated one big sachet of suspected shabu and the retrieval of 2 pieces of 100 peso bills as marked
moneys. 8
What determines if there was, indeed, a sale of dangerous drugs in a buy-bust operation is proof of the
concurrence of all the elements of the offense, to wit: (1) the identity of the buyer and the seller, the object, and
the consideration; and (2) the delivery of the thing sold and the payment therefor. 9 From the above testimony
of the prosecution witness, it was well established that the elements have been satisfactorily met. The seller and
the poseur-buyer were properly identified. The subject dangerous drug, as well as the marked money used, were
also satisfactorily presented. The testimony was also clear as to the manner in which the buy-bust operation was
conducted. AHECcT
To corroborate the testimony of PO2 Pajo, the prosecution presented the testimony of Police Inspector Virginia
Sison-Gucor, a forensic chemical officer, who confirmed that the plastic containing white crystalline substance
was positive for methamphetamine hydrochloride and that the petitioner was in possession of the marked
money used in the buy-bust operation, thus:
PROS. RUIZ:
239
Q: What was the result of your examination or what were your findings on the sachets of suspected shabu?
Neither is the lack of prior surveillance fatal. The case of People v. Lacbanes 17 is quite instructive:
A: After the preliminary and confirmatory tests were conducted on the stated specimen, the result was positive
for methamphetamine hydrochloride, a dangerous drug.
In People v. Ganguso, 18 it has been held that prior surveillance is not a prerequisite for the validity of an
entrapment operation, especially when the buy-bust team members were accompanied to the scene by their
informant. In the instant case, the arresting officers were led to the scene by the poseur-buyer. Granting that
there was no surveillance conducted before the buy-bust operation, this Court held in People v. Tranca, 19 that
there is no rigid or textbook method of conducting buy-bust operations. Flexibility is a trait of good police
work. The police officers may decide that time is of the essence and dispense with the need for prior
surveillance. 20
xxx xxx xxx
Q: What were your findings when you examined the living person of the accused, as well as the marked money
mentioned in this report?
A: According to my report, the findings for the living person of Allen Udtojan Mantalaba is positive to the test
for the presence of bright orange ultra-violet fluorescent powder. . . . 10
The above only confirms that the buy-bust operation really occurred. Once again, this Court stresses that a buybust operation is a legally effective and proven procedure, sanctioned by law, for apprehending drug peddlers
and distributors. 11 It is often utilized by law enforcers for the purpose of trapping and capturing lawbreakers in
the execution of their nefarious activities. 12 In People v. Roa, 13 this Court had the opportunity to expound on
the nature and importance of a buy-bust operation, ruling that:
In the first place, coordination with the PDEA is not an indispensable requirement before police authorities may
carry out a buy-bust operation. While it is true that Section 86 14 of Republic Act No. 9165 requires the
National Bureau of Investigation, PNP and the Bureau of Customs to maintain "close coordination with the
PDEA on all drug-related matters," the provision does not, by so saying, make PDEA's participation a condition
sine qua non for every buy-bust operation. After all, a buy-bust is just a form of an in flagrante arrest sanctioned
by Section 5, Rule 113 15 of the Rules of the Court, which police authorities may rightfully resort to in
apprehending violators of Republic Act No. 9165 in support of the PDEA. 16 A buy-bust operation is not
invalidated by mere non-coordination with the PDEA.
The rule is that the findings of the trial court on the credibility of witnesses are entitled to great respect because
trial courts have the advantage of observing the demeanor of the witnesses as they testify. This is more true if
such findings were affirmed by the appellate court. When the trial court's findings have been affirmed by the
appellate court, said findings are generally binding upon this Court. 21 cHSIAC
In connection therewith, the RTC, as affirmed by the CA, was also correct in finding that the appellant is
equally guilty of violation of Section 11 of RA 9165, or the illegal possession of dangerous drug. As an incident
to the lawful arrest of the appellant after the consummation of the buy-bust operation, the arresting officers had
the authority to search the person of the appellant. In the said search, the appellant was caught in possession of
0.6131 grams of shabu. In illegal possession of dangerous drugs, the elements are: (1) the accused is in
possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized
by law; and (3) the accused freely and consciously possessed the said drug. 22
As a defense, appellant denied that he owns the shabu and the marked money confiscated from him. However,
based on his cross-examination, such denial was not convincing enough to merit reasonable doubt, thus:
PROS. RUIZ:
Q: So it is true now that when these police officers passed you by they recovered from your possession one
sachet of shabu?
240
A: Yes, sir.
A: Yes, sir.
Q: And it is true that after you were arrested and when you were searched they also found another sachet of
shabu also in your pocket?
Q: And when the policemen brought you to the crime laboratory and had your hands tested for ultra-violet
fluorescent powder, your hands tested positively for the presence of the said powder?
A: Yes, sir. 23
A: Yes, sir.
Q: And you mentioned in your counter-affidavit marked as Exhibit H for the prosecution that no money was
taken from you because you have none at that time, is it not?
A: None sir, only the P250.00 which Jonald Ybanoso left to me.
Incidentally, the defenses of denial and frame-up have been invariably viewed by this Court with disfavor for it
can easily be concocted and is a common and standard defense ploy in prosecutions for violation of the
Dangerous Drugs Act. In order to prosper, the defenses of denial and frame-up must be proved with strong and
convincing evidence. 24
Q: This P250.00 which Jonald left to you was also confiscated from your possession?
Another contention raised by the appellant is the failure of the prosecution to show the chain of custody of the
recovered dangerous drug. According to him, while it was Inspector Ferdinand B. Dacillo who signed the
request for laboratory examination, only police officers Pajo and Simon were present in the buy-bust operation.
SECATH
A: Yes, sir.
Section 21 of RA 9165 reads:
Q: Were not P200 of the P250.00 was thrown to the ground during the time you were arrested by the police?
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources
of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources
of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:
A: No, sir.
Q: It was taken from your possession?
(1)The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
241
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof.
Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable
ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items are
properly preserved by the apprehending officer/team. 25 Its non-compliance will not render an accused's arrest
illegal or the items seized/confiscated from him inadmissible. 26 What is of utmost importance is the
preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the
determination of the guilt or innocence of the accused. 27 In this particular case, it is undisputed that police
officers Pajo and Simon were members of the buy-bust operation team. The fact that it was Inspector Ferdinand
B. Dacillo who signed the letter-request for laboratory examination does not in any way affect the integrity of
the items confiscated. All the requirements for the proper chain of custody had been observed. As testified to by
PO2 Pajo regarding the procedure undertaken after the consummation of the buy-bust operation:
Prosecutor
Q: What did you do next after that?
A: After examining the sachet of shabu that it was really the plastic containing white [crystalline] in substance,
we immediately approached the suspect.
xxx xxx xxx
Q: When you rushed up to the suspect, what did you do?
A: We informed the suspect that we are the police officers and he has this [constitutional] rights and
immediately handcuffed him.
Q: Where were the marked moneys?
A: The marked moneys were thrown on the ground. After we handcuffed the suspect, we did not immediately
searched in. We called the attention of the barangay officials to witness the search of the suspect. CAIaDT
xxx xxx xxx
Q: Now, before you searched the suspect you requested the presence of the barangay officials. Now, when these
barangay officials were present, what did you do on the suspect?
A: We immediately searched the suspect.
Q: What was the result of the searched for him? (sic)
A: We confiscated one big sachet of suspected shabu and the retrieval of 2 pieces of P100.00 peso bills as
marked moneys.
Q: You said the suspect threw the marked moneys when you searched him, where were the marked moneys?
A: On the ground.
Q: Who picked these marked moneys?
242
A: I was the one who picked the marked moneys.
Q: And then after you had picked the marked moneys and after you had the 2 pieces of sachets of shabu; one
during the buy-bust and the other one during the search, what did you do [with] these 2 pieces of sachets of
shabu and the marked moneys?
A: I recorded those items recovered, sir, during the search to the Certificate of Inventory. 28
As ruled by this Court, what is crucial in the chain of custody is the marking of the confiscated item which, in
the present case, was complied with, thus:
promulgation of judgment, because the imposable penalty for violation of Section 5 of RA 9165 is life
imprisonment to death.
It may be argued that the appellant should have been entitled to a suspension of his sentence under Sections 38
and 68 of RA 9344 which provide for its retroactive application, thus: AaEDcS
SEC. 38. Automatic Suspension of Sentence. Once the child who is under eighteen (18) years of age at the
time of the commission of the offense is found guilty of the offense charged, the court shall determine and
ascertain any civil liability which may have resulted from the offense committed. However, instead of
pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended
sentence, without need of application: Provided, however, That suspension of sentence shall still be applied
even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her
guilt.
Crucial in proving chain of custody is the marking 29 of the seized drugs or other related items immediately
after they are seized from the accused. Marking after seizure is the starting point in the custodial link, thus, it is
vital that the seized contraband are immediately marked because succeeding handlers of the specimens will use
the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus
of all other similar or related evidence from the time they are seized from the accused until they are disposed of
at the end of criminal proceedings, obviating switching, "planting," or contamination of evidence. 30
Upon suspension of sentence and after considering the various circumstances of the child, the court shall
impose the appropriate disposition measures as provided in the Supreme Court [Rule] on Juveniles in Conflict
with the Law.
Anent the age of the appellant when he was arrested, this Court finds it appropriate to discuss the effect of his
minority in his suspension of sentence. The appellant was seventeen (17) years old when the buy-bust operation
took place or when the said offense was committed, but was no longer a minor at the time of the promulgation
of the RTC's Decision.
Sec. 68. Children Who Have Been Convicted and are Serving Sentence. Persons who have been convicted
likewise benefit from the retroactive application of this Act. . . .
It must be noted that RA 9344 took effect on May 20, 2006, while the RTC promulgated its decision on this case
on September 14, 2005, when said appellant was no longer a minor. The RTC did not suspend the sentence in
accordance with Article 192 of P.D. 603, The Child and Youth Welfare Code 31 and Section 32 of A.M. No. 021-18-SC, the Rule on Juveniles in Conflict with the Law, 32 the laws that were applicable at the time of the
However, this Court has already ruled in People v. Sarcia 33 that while Section 38 of RA 9344 provides that
suspension of sentence can still be applied even if the child in conflict with the law is already eighteen (18)
years of age or more at the time of the pronouncement of his/her guilt, Section 40 of the same law limits the
said suspension of sentence until the child reaches the maximum age of 21. The provision states:
xxx xxx xxx
243
SEC. 40. Return of the Child in Conflict with the Law to Court. If the court finds that the objective of the
disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in
conflict with the law has willfully failed to comply with the condition of his/her disposition or rehabilitation
program, the child in conflict with the law shall be brought before the court for execution of judgment.
If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the
court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence,
or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of
twenty-one (21) years.
Hence, the appellant, who is now beyond the age of twenty-one (21) years can no longer avail of the provisions
of Sections 38 and 40 of RA 9344 as to his suspension of sentence, because such is already moot and academic.
It is highly noted that this would not have happened if the CA, when this case was under its jurisdiction,
suspended the sentence of the appellant. The records show that the appellant filed his notice of appeal at the age
of 19 (2005), hence, when RA 9344 became effective in 2006, appellant was 20 years old, and the case having
been elevated to the CA, the latter should have suspended the sentence of the appellant because he was already
entitled to the provisions of Section 38 of the same law, which now allows the suspension of sentence of minors
regardless of the penalty imposed as opposed to the provisions of Article 192 of P.D. 603. 34
5 of RA 9165 merits the penalty of life imprisonment to death; however, in Section 98, it is provided that, where
the offender is a minor, the penalty for acts punishable by life imprisonment to death provided in the same law
shall be reclusion perpetua to death. Basically, this means that the penalty can now be graduated as it has
adopted the technical nomenclature of penalties provided for in the Revised Penal Code. The said principle was
enunciated by this Court in People v. Simon, 37 thus:
We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses under
special laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code cannot and
should not be applied. A review of such doctrines as applied in said cases, however, reveals that the reason
therefor was because the special laws involved provided their own specific penalties for the offenses punished
thereunder, and which penalties were not taken from or with reference to those in the Revised Penal Code.
Since the penalties then provided by the special laws concerned did not provide for the minimum, medium or
maximum periods, it would consequently be impossible to consider the aforestated modifying circumstances
whose main function is to determine the period of the penalty in accordance with the rules in Article 64 of the
Code.
This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation of
penalties by degrees could not be given supplementary application to special laws, since the penalties in the
latter were not components of or contemplated in the scale of penalties provided by Article 71 of the former.
The suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former, cannot
be invoked where there is a legal or physical impossibility of, or a prohibition in the special law against, such
supplementary application.
Nevertheless, the appellant shall be entitled to appropriate disposition under Section 51 of RA No. 9344, which
provides for the confinement of convicted children as follows: 35
SEC. 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities. A child in
conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in
lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may
be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD.
The situation, however, is different where although the offense is defined in and ostensibly punished under a
special law, the penalty therefor is actually taken from the Revised Penal Code in its technical nomenclature
and, necessarily, with its duration, correlation and legal effects under the system of penalties native to said
Code. When, as in this case, the law involved speaks of prision correccional, in its technical sense under the
Code, it would consequently be both illogical and absurd to posit otherwise.
xxx xxx xxx

In finding the guilt beyond reasonable doubt of the appellant for violation of Section 5 of RA 9165, the RTC
imposed the penalty of reclusion perpetua as mandated in Section 98 36 of the same law. A violation of Section
244
Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the penalty,
in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71, are the
stage of execution of the crime and the nature of the participation of the accused. However, under paragraph 5
of Article 64, when there are two or more ordinary mitigating circumstances and no aggravating circumstance,
the penalty shall be reduced by one degree. Also, the presence of privileged mitigating circumstances, as
provided in Articles 67 and 68, can reduce the penalty by one or two degrees, or even more. These provisions of
Articles 64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under the
aforestated second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could
not have been contemplated by the legislature. SDECAI
circumstance of minority having been appreciated. Necessarily, also applying the Indeterminate Sentence Law
(ISLAW), the minimum penalty should be taken from the penalty next lower in degree which is prision mayor
and the maximum penalty shall be taken from the medium period of reclusion temporal, there being no other
mitigating circumstance nor aggravating circumstance. 40 The ISLAW is applicable in the present case because
the penalty which has been originally an indivisible penalty (reclusion perpetua to death), where ISLAW is
inapplicable, became a divisible penalty (reclusion temporal) by virtue of the presence of the privileged
mitigating circumstance off minority. Therefore, a penalty of six (6) years and one (1) day of prision mayor, as
minimum, and fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, would
be the proper imposable penalty.
Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not specially
provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy therewith. Hence,
when the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the
penalty next lower in degree shall likewise consist of as many penalties which follow the former in the scale in
Article 71. If this rule were to be applied, and since the complex penalty in this case consists of three discrete
penalties in their full extent, that is, prision correccional, prision mayor and reclusion temporal, then one degree
lower would be arresto menor, destierro and arresto mayor. There could, however, be no further reduction by
still one or two degrees, which must each likewise consist of three penalties, since only the penalties of fine and
public censure remain in the scale.
WHEREFORE, the Decision dated July 31, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
00240-MIN, affirming the Omnibus Judgment dated September 14, 2005 of the Regional Trial Court, Branch 1,
Butuan City in Criminal Case No. 10250 and Criminal Case No. 10251, finding appellant Allen Udtojan
Mantalaba, guilty beyond reasonable doubt of violation of Sections 5 and 11, Article II of RA 9165 is hereby
AFFIRMED with the MODIFICATION that the penalty that should be imposed on appellant's conviction of
violation of Section 5 of RA 9165, is six (6) years and one (1) day of prision mayor, as minimum, and fourteen
(14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.
SO ORDERED.
The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of
the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of
penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the
three component penalties in the second paragraph of Section 20 shall each be considered as an independent
principal penalty, and that the lowest penalty should in any event be prision correccional in order not to
depreciate the seriousness of drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such
interpretation is to be adopted so that the law may continue to have efficacy rather than fail. A perfect judicial
solution cannot be forged from an imperfect law, which impasse should now be the concern of and is
accordingly addressed to Congress. 38
Carpio, * Velasco, Jr., Abad and Mendoza, JJ., concur.

||| (People v. Mantalaba, G.R. No. 186227, [July 20, 2011], 669 PHIL 461-486)
EN BANC
[G.R. Nos. L-11128-33. December 23, 1957.]
Consequently, the privileged mitigating circumstance of minority 39 can now be appreciated in fixing the
penalty that should be imposed. The RTC, as affirmed by the CA, imposed the penalty of reclusion perpetua
without considering the minority of the appellant. Thus, applying the rules stated above, the proper penalty
should be one degree lower than reclusion perpetua, which is reclusion temporal, the privileged mitigating
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENE ESCARES, defendant-appellant.

Solicitor General Ambrosio Padilla, First Assistant Solicitor General Guillermo E. Torres and Solicitor Jorge R.
Coquia for appellee.
245
Bienvenido B. Manangan for appellant.
SYLLABUS
CRIMINAL LAW; PENALTY; THREE FOLD RULE, WHEN TO BE TAKEN INTO ACCOUNT. The three
fold provided for in paragraph 4 of Article 70 of the Revised Penal Code, can only be taken into account, not in
the imposition of the penalty, but in connection with the service of the sentence imposed.
Rene Escares appealed from the decision but having taken the case to the Court of Appeals, the latter certified it
to us on the ground that the only issue involved is one of law.
The only question raised in this appeal refers to the penalty imposed on the appellant. He contends that since he
pleaded guilty to all the crimes charged and there is no aggravating circumstance to offset it, the penalty to be
imposed on him should be reduced to the minimum.
DECISION
BAUTISTA ANGELO, J p:
On September 13, 1950, six separate informations for robbery were filed in the Court of First Instance of Rizal
against Salvador Poblador, Armando Gustillo and Rene Escares. When these cases were called for hearing on
March 2, 1951, Rene Escares was still at large and, by agreement of the parties, they were tried jointly against
Salvador Poblador and Armando Gustillo. A decision was thereafter rendered against them finding them guilty
of the crimes charged and convicting them accordingly.
On April 21, 1954, Rene Escares was arraigned and pleaded not guilty in each of the six above-mentioned cases
but later he asked permission to withdraw his former plea of not guilty and substitute it for a plea of guilty. The
trial court granted the petition and forthwith it rendered a decision of the following tenor:
"When these cases were called for trial, the accused asked permission to withdraw his former plea of not guilty
and substitute it with that of guilty in all these cases. The Court granted said petition, and the accused forthwith
freely and voluntarily pleaded guilty in all these cases.
"WHEREFORE, the Court finds the accused Rene Escares guilty of the crimes charged in the information in all
these cases, and, in accordance with the provisions of Article 70 of the Revised Penal Code, hereby sentences
said accused to twelve (12) years, six (6) months, and one (1) day in all the cases, with all the accessories of the
law, and to pay the costs."
It should be noted that the imposable penalty in each of the six cases where appellant pleaded guilty in
accordance with paragraph 5, Article 294, of the Revised Penal Code, is prision correccional in its maximum
period to prision mayor in its medium period, which should be applied in its minimum period in view of the
mitigating circumstance of plea of guilty, not offset by any aggravating circumstance, or from 4 years 2 months
and 1 day to 6 years one month and 10 days. Applying the Indeterminate Sentence Law, the appellant should be
sentenced for each crime to an indeterminate penalty the minimum of which shall not be less than 4 months and
1 day of arresto mayor nor more than 4 years and 2 months of prision correccional, and the maximum shall not
be less than 4 years 2 months and 1 day of prision correccional nor more than 6 years 1 month and 10 days of
prision mayor. But in applying the proper penalty, the trial court imposed upon appellant the three-fold rule
provided for in paragraph 4 of Article 70 of the Revised Penal Code. This is an error for said article can only be
taken into account, not in the imposition of the penalty, but in connection with the service of the sentence
imposed.
The penalty imposed upon appellant by the trial court should therefore be modified in the sense that he should
suffer in each of the six cases an indeterminate penalty of not less than 4 months and 1 day of arresto mayor and
not more than 4 years 2 months and 1 day of prision correccional, plus the corresponding accessory penalties
provided for by law. These penalties should be served in accordance with the limitation prescribed in paragraph
4, Article 70, of the Revised Penal Code.
Modified in the sense above indicated, we affirm the decision of the trial court, with costs against appellant.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Labrador, Concepcion, Reyes, J. B. L., Endencia and
Felix, JJ., concur.
246
||| (People v. Escares, G.R. Nos. L-11128-33, [December 23, 1957], 102 PHIL 677-679)
EN BANC
unlawfully and feloniously, directly intervene, work for, and facilitate the approval of one Isagani de Leon's
claim for the payment in the removal and reconstruction of his house and a part of his land expropriated by the
government having been affected by the proposed Pasig-Sta. Cruz-Calamba Road. 2nd IBRD Project at
Binangonan, Rizal, while the accused, Arturo A. Mejorada is in the discharge of his official and/or
administrative functions and after said claim was approved and the corresponding PNB Check No. SN 5625748
was issued and encashed in the amount of P7,200.00 given only P1,000.00 to claimant (Isagani de Leon),
appropriating, applying and converting to themselves the amount of P6,200.00, thereby causing damage and
prejudice to Isagani de Leon and the government in the aforementioned amount of P6,200.00.
[G.R. No. L-51065-72. June 30, 1987.]

ARTURO A. MEJORADA, petitioner, vs. THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
Contrary to law.
Except for the date of the commission of the offense, the name of the aggrieved private party, the PNB Check
number, the amount involved and the number or John Does, the seven other informations are verbatim
repetitions of the above.
CORTES, J p:
The facts are found by the respondent Sandiganbayan are as follows:
This petition for certiorari seeks to reverse the May 23, 1979 decision of the Sandiganbayan finding the accused
Arturo A. Mejorada in Criminal Cases Nos. 002-009 guilty beyond reasonable doubt of violating Section 3(E)
of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
Eight informations were filed by the Provincial Fiscal against the petitioner and jointly tried before the
Sandiganbayan. The eight informations substantially allege the same set of circumstances constituting the
offense charged. Criminal Case No. 002 reads as follows:
That in (sic) or about and during the period comprised from October 1977 to February 1978, in the municipality
of Pasig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, being employed in the Office of the Highway District Engineer, Pasig, Metro Manila, as Right-ofWay-Agent conspiring and confederating together with two (2) other John Does whose true identities and
present whereabouts are still unknown, with evident bad faith, and for personal gain, did then and there wilfully,
Arturo A. Mejorada was a public officer who was first employed as a temporary skilled laborer in the Bureau of
Public Works on March 16, 1947, and then as right-of-way agent in the Office of the Highway District
Engineer, Pasig, Metro Manila, from February, 1974 up to December 31, 1978. As a right-of-way agent, his
main duty was to negotiate with property owners affected by highway constructions or improvements for the
purpose of compensating them for the damages incurred by said owners.
Among those whose lots and improvements were affected by the widening of the proposed Pasig-Sta. CruzCalamba Road. 2nd IBRD Project, at Binangonan, Rizal were Isagani de Leon, Isaac Carlos, Napoleon
Maybituin, Dominga Villaroza, Florentino de la Cruz, Cipriano Aran, Celestina S. Mallari and Rodolfo Rivera,
all residents of Mambog, Binangonan, Rizal.
Sometime in October or November 1977, petitioner contacted the aforenamed persons and informed them that
he could work out their claims for payment of the values of their lots and/or improvements affected by the
247
widening of said highway. In the process, Mejorada required the claimants to sign blank copies of the "Sworn
Statement on the Correct and Fair Market Value of Real Properties and "Agreement to Demolish, Remove and
Reconstruct improvements" pertinent to their claims. The claimants complied without bothering to find out
what the documents were all about as they were only interested in the payment of damages.
In said "Sworn Statements" and "Agreements to Demolish", the value of the respective properties of the
claimants were made to appear very much higher than the actual value claimed by them. Likewise, the said
"Agreements to Demolish" reflected the value of the improvements "as per assessor" which on the average was
only P2,000.00 lower than the value declared by the owners in their sworn statements. The value as per assessor
was, in turn, supported by the Declarations of Real Property in the names of the claimants containing an
assessed value exactly the same as that stated in the Agreements to Demolish as per assessor", except the claims
of De la Cruz and Aran where there is only a difference of P400.00 and P200.00, respectively. It turned out,
however, that said Declarations of Property are not really intended for the claimants as they were registered in
the names of other persons, thus showing that they were all falsified.
I. Whether or not the essential elements constituting the offense penalized by section 3(e) of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act have been clearly and convincingly proven
by the prosecution;
II. Whether or not the Sandiganbayan is a court of competent jurisdiction duly constituted in accordance with
Pres. Dec. No. 1606;
III. Whether or not the penalty imposed upon the petitioner is excessive and contrary to the three-fold rule as
provided for by Article 70 of the Revised Penal Code;
IV. Whether or not there is a variance between the offense charged in the information and the offense proved;
A few months after processing the claims, accused accompanied the claimants to the Office of the Highway
District Engineer at the provincial capitol of Pasig, Metro Manila, to receive payments and personally assisted
the claimants in signing the vouchers and encashing the checks by certifying as to their identities and
guaranteeing payment.
Right after the claimants had received the proceeds of their checks, accused accompanied them to his car which
was parked nearby where they were divested of the amounts paid to them leaving only the sum of P1,000.00 to
each, except Isaac Carlos to whom P5,000.00 was left, explaining to them that there were many who would
share in said amounts. All the claimants were helpless to complaint because they were afraid of the accused and
his armed companion.
V. Whether or not the conclusion drawn from the record of the Sandiganbayan in arriving at a verdict of
conviction of petitioner is correct is a question of law which this Honorable Court is authorized to pass upon.
I. Petitioner contends that the eight informations filed against him before the Sandiganbayan are fatally
defective in that it failed to allege the essential ingredients or elements constituting the offense penalized by
Section 3(e) of Rep. Act No. 3019.
The section under which the accused-petitioner was charged provides:

The claimants, through the assistance of counsel, filed their complaints with the Provincial Fiscal's Office of
Pasig, Metro Manila, narrating in their supporting sworn statements what they later testified to in court.
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful.
Five issues are raised in this petition to review the decision of the Sandiganbayan:
248
xxx xxx xxx
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions
through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to
officers and employees of offices or government corporations charged with the grant of licenses or permits or
other concessions.
Petitioner enumerated three elements which, in his opinion, constitute a violation of Section 3(e).
First, that the accused must be a public officer charged with the duty of granting licenses or permits or other
concessions. Petitioner contends that inasmuch as he is not charged with the duty of granting licenses, permits
or other concessions, then he is not the officer contemplated by Section 3 (e).
Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers declared
unlawful. Its reference to "any public officer" is without distinction or qualification and it specifies the acts
declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph
(e) is intended to make clear the inclusion of officers and employees of officers or government corporations
which, under the ordinary concept of "public officers" may not come within the term. It is a strained
construction of the provision to read it as applying exclusively to public officers charged with the duty of
granting licenses or permits or other concessions.
The first element, therefore, of Section 3 (e) is that the accused must be a public officer. This, the informations
did not fail to allege.
Second, that such public officer caused undue injury to any party, including the Government, or gave any
private party unwarranted benefits, advantage or preference in the discharge of his official administrative or
judicial functions.
Petitioner denies that there was injury or damage caused the Government because the payments were allegedly
made on the basis of a document solely made by the Highway District Engineer to which petitioner had no hand
in preparing. The fact, however, is that the government suffered undue injury as a result of the petitioner's
having inflated the true claims of complainants which became the basis of the report submitted by the Highway
District Engineer to the Regional Director of the Department of Highways and which eventually became the
basis of payment. His contention that he had no participation is belied by the fact that as a right-of-way-agent,
his duty was precisely to negotiate with property owners who are affected by highway constructions for the
purpose of compensating them.
On the part of the complainants, the injury caused to them consists in their being divested of a large proportion
of their claims and receiving payment in an amount even lower than the actual damage they incurred. They
were deprived of the just compensation to which they are entitled.
Third, the injury to any party, or giving any private party any unwarranted benefits, advantage or preference was
done through manifest, partiality, evident bad faith or gross inexcusable negligence.
Petitioner argues that for the third element to be present, the alleged injury or damage to the complainants and
the government must have been caused by the public officer in the discharge of his official, administrative or
judicial functions and inasmuch as when the damage was caused to the complainants, he was no longer
discharging his official administrative functions, therefore, he is not liable for the offense charged.
The argument is devoid of merit. The Sandiganbayan established the fact that the petitioner took advantage of
his position as a right-of-way-agent by making the claimants sign the aforementioned agreements to demolish
and sworn statements which contained falsified declarations of the value of the improvements and lots. There
was evident bad faith on the part of the petitioner when he inflated the values of the true claims and when he
divested the claimants of a large share of the amounts due them.
In view of the above holding. We also dispose of the fourth issue which relates to the allegation that petitioner
cannot be convicted for a violation of the Anti-Graft Law because the evidence adduced by the prosecution is
not the violation of Section 3 (e) but the crime of robbery. Contrary to the petitioner averment. We find no
variance between the offense charged in the information and the offense proved. The prosecution was able to
249
establish through the corroborating testimonies of the witnesses presented how through evident bad faith,
petitioner caused damage to the claimants and the Government. The manner by which the petitioner divested the
private parties of the compensation they received was part of the scheme which commenced when the petitioner
approached the claimants and informed them that he could work out their claims for payment of the values of
their lots and/or improvements affected by the widening of the Pasig-Sta. Cruz Calamba Road. The evidence
presented by the prosecution clearly establish a violation of Section 3(e).
II. The petitioner also assails the competency of the Sandiganbayan to hear and decide this case. He argues that
before the Sandiganbayan could legally function as a judicial body, at least two (2) divisions, or majority of the
justices shall have been duly constituted and appointed.
We previously ruled on this matter in the case of De Guzman v. People (G.R. No. 54288, December 15, 1982,
119 SCRA 337). In that case, the petitioner De Guzman questioned the authority of the Sandiganbayan to hear
and decide his case on the same ground that herein petitioner assails its jurisdiction. The Court upheld the
authority of the Sandiganbayan saying that:
Although the Sandiganbayan is composed of a Presiding Justice, and eight Associate Justices, it does not mean
that it cannot validly function without all of the Divisions constituted. Section 3 of P.D. 1606 provides that the
"Sandiganbayan shall sit in three divisions of three justices each" while Section 5 thereof provides that the
unanimous vote of three justices of a division shall be necessary for the pronouncement of a judgment.
Thus the Sandiganbayan functions in Divisions of three Justices each and each Division functions
independently of the other. As long as a division has been duly constituted it is a judicial body whose
pronouncements are binding as judgments of the Sandiganbayan.
The judgment convicting petitioner was a unanimous Decision of the First Division duly constituted. It thus met
the requirement for the pronouncement of a judgment as required by Section 5 of P.D. 1606 supra.
III. The third issue raised by the petitioner concerns the penalty imposed by the Sandiganbayan which totals
fifty-six (56) years and eight (8) days of imprisonment. Petitioner impugns this as contrary to the three-fold rule
and insists that the duration of the aggregate penalties should not exceed forty (40) years.
Petitioner is mistaken in his application of the three-fold rule as set forth in Article 70 of the Revised Penal
Code. This article is to be taken into account not in the imposition of the penalty but in connection with the
service of the sentence imposed (People v. Escares, 102 Phil. 677 (1957)]. Article 70 speaks of "service" of
sentence, "duration" of penalty and penalty "to be inflicted". Nowhere in the article is anything mentioned about
the "imposition of penalty". It merely provides that the prisoner cannot be made to serve more than three times
the most severe of these penalties the maximum of which is forty years.
The Sandiganbayan, therefore, did not commit any error in imposing eight penalties for the eight informations
filed against the accused-petitioner. As We pointed out in the case of People v. Peralta, (No. L-19069, October
29, 1968, 25 SCRA 759, 783-784):
. . . Even without the authority provided by Article 70, courts can still impose as many penalties as there are
separate and distinct offenses committed, since for every individual crime committed, a corresponding penalty
is prescribed by law. Each single crime is an outrage against the State for which the latter, thru the courts of
justice, has the power to impose the appropriate penal sanctions.
In the light of the above reasons, petitioner cannot assail the penalty imposed upon him as harsh, cruel and
unusual (See Veniegas v. People, G.R. No. 57601-06 July 20, 1982, 115 SCRA 790, 792).
We deem it unnecessary to pass upon the fifth issue raised in view of the foregoing discussion.
WHEREFORE, the petition is denied for lack of merit.

SO ORDERED.
Teehankee (C.J.), Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin and Sarmiento, JJ., concur.
250
||| (Mejorada v. Sandiganbayan, G.R. No. L-51065-72, [June 30, 1987], 235 PHIL 400-411)
of the death penalty in the Philippines. The proximate concern as to appellant is whether his penalty for
attempted qualified rape, which under the penal law should be two degrees lower than that of consummated
qualified rape, should be computed from death or reclusion perpetua.
First, the antecedent facts.
I.
EN BANC
[G.R. No. 166401. October 30, 2006.]
[Formerly G.R. Nos. 158660-67]
PEOPLE OF THE PHILIPPINES, appellee, vs. ALFREDO BON, appellant.
Eight (8) Informations 2 were filed within the period from 21 August 2000 to 23 February 2001 by the Assistant
Provincial Prosecutor of Gumaca, Quezon against appellant, charging him with the rape of AAA 3 and BBB, 4
the daughters of his older brother. Appellant was accused of raping AAA in Criminal Case Nos. 6899-G, 6902G, 6906-G, and 6908-G; while he was accused of raping BBB in Criminal Case Nos. 6689-G, 6903-G, 6905-G,
and 6907-G. 5 All these cases were consolidated for trial. The rapes were alleged to have been committed in
several instances over a span of six (6) years.
DECISION
TINGA, J p:
Two critical issues emerge in this case. The first relates to whether the Court should affirm the conviction of
appellant Alfredo Bon (appellant) for six counts of rape and two counts of attempted rape, the victims being his
then-minor nieces. On that score, we affirm. As a consequence though, we are ultimately impelled to confront a
question much broader in both scope and import. While the Court had previously declined to acknowledge the
constitutional abolition of the death penalty through the 1987 Constitution, 1 we now find it necessary to
determine whether the enactment of Republic Act No. 9346 resulted in the statutory interdiction of the death
penalty.
The second issue arises as we are compelled to review the maximum term of reclusion temporal in the sentence
imposed on appellant by the Court of Appeals for the two counts of attempted rape. The sentence was
prescribed by the appellate court prior to the enactment of Republic Act No. 9346 which ended the imposition
Both AAA and BBB testified against appellant, their uncle, and both identified him as the man who had raped
them. During trial, their respective birth certificates and the medical certificates executed by the doctor who
physically examined them were entered as documentary evidence.
AAA testified that she was only six (6) years old when she was first molested in 1994 in the house appellant had
shared with her grandmother. 6 She recounted that the incident took place when she and appellant were alone in
the house. Appellant touched her thighs and vagina, removed her clothes and inserted his penis into her vagina.
Appellant threatened that she and her parents would be killed should she disclose the incident to anyone. She
thereafter stopped sleeping in the house of her grandmother. It was only three (3) years after, in 1997, that she
slept in the said house, yet again she was sexually abused by appellant. She was then nine (9) years old. 7
AAA recounted that at age eleven (11) in 1999, she was raped by appellant for the third time, again at the house
of her grandmother. 8 The following year, when she was twelve (12), she was abused for the fourth time by
appellant. This time, she was raped in an outdoor clearing 9 after having been invited there by appellant to get
251
some vegetables. While at the clearing, appellant forced her to lie down on a grassy spot and tried to insert his
penis in her vagina. As she cried in pain, appellant allegedly stopped. 10
It was only on 12 June 2000 that she decided to reveal to her mother, CCC, 11 the brutish acts appellant had
done to her. 12 Her mother thus filed a complaint against her uncle. AAA identified appellant in open court and
presented as documentary evidence her birth certificate to prove that she was born on 3 September 1988. 13
BBB, on the other hand, testified that she was first raped by appellant in 1997 when she was ten (10) years old,
also at the house appellant shared with her grandmother. While alone in the house, appellant poked a knife at
her, removed her clothes and inserted his penis in her vagina. Despite the pain she felt, she could not resist
appellant as he was holding a knife. She did not report the rape to her parents out of fear of appellant's threat
that he would kill her. 14 BBB further testified that in 1998 and 1999, she was raped again by appellant on
several occasions, the rapes occurring under threat of a bladed weapon, and regardless of the time of day. 15
BBB stated that she was last raped by appellant on 15 January 2000. 16 On that night, she was sleeping beside
her sister AAA in the house of her grandmother when she felt appellant touching her body. She pushed him
away but appellant pulled her three (3) meters away from AAA towards the door. As appellant was holding a
knife, BBB could not make any noise to alert her sister. Appellant ordered her to remove her clothes and forced
her to lie down. After he took off his clothes, appellant placed himself on top of BBB and stayed there for three
(3) minutes "moving up and down." Thereafter, she put on her clothes and returned to where her sister was. She
added that although it was dark, she knew it was appellant who had molested her as she was familiar with his
smell. Since then, she never slept in her grandmother's house again. 17
It was on 14 June 2000 that BBB disclosed her harrowing experience to her mother. Prior to that, however, she
had already revealed the sexual abuses she had underwent to her sister AAA. Upon learning of the same, her
mother brought her to the police station and her statement was taken. Thereafter, she was brought to the hospital
to be examined. Furthermore, BBB explained that she only reported the abuses done to her on 14 June 2000 or
five (5) months after the last rape because she was afraid of appellant's threat of killing her and her family. 18
The third witness for the prosecution was the mother, CCC. She testified that she only knew of the abuses done
on her daughters on 15 June 2000. Five months earlier, CCC became concerned after observing that BBB, on
the pretext of preparing clothes for a game, was packing more than enough clothes. She asked her other
daughter, DDD, to dig into the matter and the latter told her that BBB was planning to leave their house. Upon
learning this, she sent somebody to retrieve BBB. However, it was only five months after that incident that BBB
confided to her mother that she was raped by appellant. CCC lost no time in reporting the matter to the
authorities and had BBB and AAA examined in the hospital. After examination, it was confirmed that BBB was
indeed sexually molested. 19
CCC initially did not tell her husband about what had happened to their daughters because she was afraid that
her husband might kill appellant. It was only after appellant was arrested that she disclosed such fact to her
husband. After the arrest of appellant, his relatives became angry at CCC, and her mother-in-law avoided
talking to her since then. 20
The physician who examined BBB and AAA also testified for the prosecution. Dr. Purita T. Tullas (Dr. Tullas),
medical officer of Gumaca District Hospital, testified that she was the one who examined BBB and AAA, and
thereafter, issued medical certificates for each child. These medical certificates were presented in court. 21
The medical certificate of BBB revealed that at the time of examination, there were no external sign of physical
injury found on her body. However, Dr. Tullas found that the labia majora and minora of BBB was slightly
gaping, her vaginal orifice was admitting two fingers without resistance and there were hymenal lacerations at
"three (3) o'clock" and "eight (8) o'clock" which might have happened a long time before her examination. Dr.
Tullas concluded that there might have been sexual penetration caused by a male sex organ for several times. 22
AAA's medical certificate stated that at the time of examination, there were no external physical injuries
apparent on her body. AAA's labia majora and minora were well coaptated and the hymen was still intact. On
direct examination, Dr. Tullas said that it could happen that the hymen would still be intact despite sexual
penetration with a person having an elastic hymen. On the other hand, when asked on cross-examination, she
stated that there was also the possibility that no foreign body touched the labia of the pudendum of AAA. 23
Only appellant testified for his defense, offering denial and alibi as his defense. He averred in court that from
1994 to 2000, he lived in the house of his parents which was about "thirty (30) arm stretches" away from the
house of BBB and AAA. He denied having raped BBB on 15 January 2000 because on said date he was at the
252
house of his sister, two (2) kilometers away from the house of his parents where the rape occurred, from 11:30
in the morning and stayed there until early morning of the following day. 24
He offered a general denial of the other charges against him by BBB and AAA. He claimed that he seldom saw
the two minors. He further asserted that prior to the institution of the criminal case against him he had a smooth
relationship with his nieces and the only reason the case was filed against him was that CCC, his sister-in-law
and the mother of his nieces, harbored ill-feelings towards his deceased father, who would call CCC "lazy"
within earshot of other family members. 25
The RTC convicted appellant on all eight (8) counts of rape. 26 The RTC pronounced appellant's defense of
denial and alibi as unconvincing, citing jurisprudence declaring denial and alibi as intrinsically weak defenses.
The RTC concluded that appellant failed to controvert the clear, candid and straightforward testimonies of his
nieces. It further considered the qualifying circumstances of minority of the victims and the relationship of the
victims and appellant, the latter being the former's relative by consanguinity within the third degree. CSAcTa
As the penalty imposed consisted of eight (8) death sentences, the records of the case were automatically
elevated to this Court for review. However, in the aftermath of the pronouncement of the Court in People v.
Mateo 27 the present case was transferred to the Court of Appeals for appropriate action and disposition.
On 29 December 2004, the Court of Appeals agreed with the rulings of the RTC in regard to six (6) of the eight
(8) death sentences imposed on appellant. 28 The appellate court ratiocinated, thus:
We have painstakingly gone over the record of these cases and find no cogent reason to deviate from the
findings of the trial court except in at least two (2) cases. The prosecution's case which was anchored mainly on
the testimonies of private complainants [BBB] and [AAA], deserve full faith and credit for being clear, precise
and straightforward. Like the trial court, We find no reason to disbelieve the private complainants. It was
established with certitude that the accused on several occasions sexually assaulted his nieces. The perpetration
of the crimes and its authorship were proved by the victims' candid and unwavering testimonies both of whom
had the misfortune of sharing the same fate in the hands of their own uncle. The sincerity of [AAA] was made
more evident when she cried on the witness stand in obvious distress over what their uncle had done to her and
her sister. 29
The Court of Appeals downgraded the convictions in Criminal Case Nos. 6906 and 6908 to attempted rape. In
these two (2) cases, it was alleged that appellant had raped AAA in 1999 and on 11 June 2000, respectively.
According to the appellate court, it could not find evidence beyond reasonable doubt in those two (2) cases that
appellant had accomplished the slightest penetration of AAA's vagina to make him liable for consummated
rape. It stressed that there was not even moral certainty that appellant's penis ever touched the labia of the
pudendum, quoting portions of the transcript of the stenographic notes where AAA was asked if appellant was
then successful in inserting his penis into her vagina and she answered in the negative. 30 Accordingly, the
Court of Appeals reduced the penalties attached to the two (2) counts of rape from death for consummated
qualified rape to an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal, as maximum, for attempted rape.
Appellant, in his Supplemental Brief 31 before this Court, assails the findings of the Court of Appeals. He cites
inconsistencies in the testimony of BBB as to what really transpired on 15 January 2000. Particularly, appellant
observes that BBB testified on 6 June 2001 as to her rape on 15 January 2000. BBB, her sister and appellant had
been sleeping side by side. However, when BBB again testified on 3 July 2002, this time she stated that on that
night, as she and her sister AAA were sleeping in their room at their parents' house (and not at her
grandmother's), the accused passed through a window, entered their room and raped her again. 32 Appellant
also latches on the inconsistencies in BBB's testimony as to the length of the duration of her rape on that day. In
BBB's testimony on 6 June 2001, she said that appellant was atop her for three (3) minutes while in the 3 July
2002 hearing, BBB stated that the rape lasted for only half a minute.
It must be observed though that BBB was at a tender age when she was raped in 2001. Moreover, these
inconsistencies, which the RTC and the Court of Appeals did not consider material, were elicited while BBB
was testifying in open court. Our observations in People v. Perez 33 on the appreciation of alleged
inconsistencies in the testimony of rape victims who happen to be minors are instructive, thus:
We note that these alleged inconsistencies refer, at best, only to trivial, minor, and insignificant details. They
bear no materiality to the commission of the crime of rape of which accused-appellant was convicted.[ 34 ] As
pointed out by the Solicitor General in the Appellee's Brief, the seeming inconsistencies were brought about by
confusion and merely represent minor lapses during the rape victim's direct examination and cannot possibly
affect her credibility. Minor lapses are to be expected when a person is recounting details of a traumatic
experience too painful to recall. The rape victim was testifying in open court, in the presence of strangers, on an
253
extremely intimate matter, which, more often than not, is talked about in hushed tones. Under such
circumstances, it is not surprising that her narration was less than letter-perfect.[ 35 ] "Moreover, the
inconsistency may be attributed to the well-known fact that a courtroom atmosphere can affect the accuracy of
testimony and the manner in which a witness answers questions."[ 36 ] 37
Further, the public prosecutor offered a convincing explanation on why BBB was confused on some points of
her two testimonies. Particularly in the Memorandum for the People 38 filed with the RTC, the public
prosecutor creditably explained the inconsistencies, thus:
[BBB]'s testimony on July 3, 2002 might be contradictory to her first testimony on June 6, 2001, with respect to
the last rape on January 15, 2000, as regards the place of commission house of her parents or house of
accused; and the length of time he stayed on her top 3 minutes or half-minute. But she remained consistent in
her declaration that on January 15, 2000, her uncle inserted his penis into her vagina, and he was moving while
on her top then she felt something came out from him. He was able to rape her because he threatened her with a
knife or bladed weapon. Further, the first she took the witness stand on June 6, 2001, she was made to recall the
last rape, the first rape and many acts of sexual abuses [sic] against her. She was even confused about her age
when she was first raped by her uncle. After she testified on November 14, 2001, for the separate charges of
rapes in 1997, 1998 and 1999, she was able to recall more clearly the last rape on January 15, 2000, which
happened in her own house. These noted discrepancies as to the exact place of commission accused's house
or victim's house is not an essential element of the crime of rape and both houses are situated in Brgy. Villa
Padua Ilaya, Gumaca, Quezon, which is within the territorial jurisdiction of this Honorable Court. . . . 39
In addition, we share the lower court's disbelief of appellant's proffered defenses of denial and alibi. These two
defenses are inherently the weakest as they are negative defenses. Mere denials of involvement in a crime
cannot take precedence over the positive testimony of the offended party. For alibi to prosper, it is not enough
for the defendant to prove that he was somewhere else when the crime was committed; he must likewise
demonstrate that it is physically impossible for him to have been at the scene of the crime at the time. 40
In the case at bar, appellant's alibi that he was at his sister's house barely two (2) kilometers away when the rape
took place on 15 January 2000 cannot be given credence by this Court. If we are to thread this line of reasoning,
appellant could have easily left his sister's house in the middle of the night, raped BBB, and then returned to his
sister's house without much difficulty and without anybody noticing his absence. ADTEaI
Well-settled is the rule that a categorical and positive identification of an accused, without any showing of illmotive on the part of the eyewitness testifying on the matter, prevails over alibi and denial. 41 The defenses of
denial and alibi deserve scant consideration when the prosecution has strong, clear and convincing evidence
identifying appellant as the perpetrator. 42 In this case, both BBB and AAA, minors and relatives of appellant,
positively identified him as their rapist in open court. The lower courts found no issue detracting from the
credibility of such identification.
It is worthy to note that the alibi presented by appellant is limited to the 15 January 2000 rape of BBB. He
offers nothing to counteract the accusations against him involving the seven (7) other specific acts of rape other
than the averment that he did not know anything about the allegations propounded on him, an infinitesimal
defense considering the evidence against him.
Appellant does claim that the present case was merely instituted because of the grudge of CCC towards his
deceased father. It is outrageous to even suggest that a mother will subject her daughters to the humiliating
experience of coming before the court and narrating their harrowing experience just because she was tagged by
her father-in-law as lazy. In addition, CCC's father-in-law had died several years before the criminal charges
against appellant were ever instituted. If CCC truly wanted to retaliate and damage the reputation of her fatherin-law, she could have done so when the latter was still alive. No member of a rape victim's family would dare
encourage the victim to publicly expose the dishonor of the family, more specifically if such accusation is
against a member of the family, unless the crime was in fact committed. 43
Besides, no sane woman, least of all a child, would concoct a story of defloration, allow an examination of her
private parts and subject herself to public trial or ridicule if she has not in truth, been a victim of rape and
impelled to seek justice for the wrong done to her. Testimonies of child-victims are normally given full weight
and credit, since when a woman, more so if she is a minor, says that she has been raped, she says in effect all
that is necessary to show that rape has been committed. Youth and immaturity are generally badges of truth and
sincerity. 44 The weight of such testimonies may be countered by physical evidence to the contrary, or
indubitable proof that the accused could not have committed the rape, but in the absence of such countervailing
proof, these testimonies shall be accorded utmost value.
254
The twin aggravating circumstances of minority and relationship were properly appreciated in this case. The
minority of the victims and their relationship with appellant were aptly established in the lower court
proceedings. Not only did the prosecution allege in the Informations the ages of the victims when they were
raped but the prosecution also presented the birth certificates of BBB and AAA in court as documentary
evidence to prove that they were both minors when appellant raped them. Appellant, in open court, also
admitted that that he was the uncle of both victims being the brother of the victims' father, and thus, a relative of
the victims within the third degree of consanguinity.
Q What was that?
A He also touched my vagina and my other private parts and he inserted also his penis (into) my vagina. [sic]
Q Was he able to insert his penis into your vagina?

Furthermore, the delay in reporting the repulsive acts of appellant to BBB and AAA is understandably justified,
considering that appellant repeatedly threatened to kill them and their family should they disclose the incidents
to anyone. It has been held time and again that delay in revealing the commission of rape is not an indication of
a fabricated charge. 45 Such intimidation must be viewed in light of the victim's perception and judgment at the
time of the commission of the crime and not by any hard and fast rule. It is enough that the intimidation
produces a fear that if the victim does not yield to the perverse impulses of the accused, something would
happen to her at the moment, or even thereafter, as when she is threatened with death if she would report the
incident. 46
A No, Mam. [sic]
Q Why?
A It was painful, Mam. [sic]

At the same time, we agree with the Court of Appeals that the two counts of rape in Criminal Case Nos. 6906-G
and 6908-G were not proven beyond reasonable doubt, but only the two separate incidents of attempted rape.
It is to be noted that there is an attempt to commit rape when the offender commences its commission directly
by overt acts but does not perform all acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance. 47 In Criminal Case No. 6906-G, the records show
that there was no penetration or any indication that the penis of appellant touched the labia of the pudendum of
AAA. This was evident in AAA's testimony at the hearing on 17 October 2001, to wit:
Q Do you remember of any unusual incident that happened to you when you were eleven years old?
A Yes, Mam. [sic]
xxx xxx xxx
Q How many times did he try to insert his penis into your vagina?
A Many times, Mam. 48 [sic]
AAA also testified in the same vein in Criminal Case No. 6908-G.
Q I am now through with Criminal Case No. 6906-G. In Criminal Case No. 6908-G, also for Rape. When was
the last time that this sexual abuse was committed by your Uncle?
255
A June 11, Mam. [sic] TCDHIc
Q And what did you do when you feel painful?
Q What year?
A I cried, Mam. [sic]
A June 11, 2000, Mam. [sic]
Q When you cried, what did your Uncle do, if any?
xxx xxx xxx
A He did not pursue what he was doing, Mam. [sic]
Q What did your Uncle do to you on June 11, 2000?
xxx xxx xxx
A He also removed my clothes, Mam. [sic]
Q And your Uncle was not able to penetrate his penis to your vagina?
Q And after removing your clothes, what did he do to you?
A No, Mam. 49 [sic]
A He was trying to insert his penis into my vagina, Mam. [sic]
In downgrading the offense committed and consequently decreasing the penalty, the CA declared:
xxx xxx xxx
It is carnal knowledge, not pain, that is the element to consummate rape. Indeed pain may be deduced from the
sexual act but accused cannot be convicted of rape by presuming carnal knowledge out of pain. It is well-settled
that complete penetration of the penis into the vagina is not necessary to convict for consummated rape since
the slightest penetration of one into the other will suffice. However, in People v. Campuhan, the term "slightest
penetration" was clarified to mean that there must be sufficient and convincing proof of the penis indeed
touching at the very least the labias of the female organ. Mere epidermal contact between the penis and the
external layer of the victim's vagina (the stroking and the grazing of the male organ upon the female organ or
the mons pubis) categorizes the crime as attempted rape or acts of lasciviousness. There must be positive proof
of even the slightest penetration, more accurately, the touching of the labias by the penis, before rape could be
Q And what did you feel when he was trying to insert his penis in your vagina?
A Painful, Mam. [sic]
256
deemed consummated. We, therefore, take exception to the finding of the trial court that when the accused was
trying to insert his penis into the child's vagina, the act proved painful to [AAA,] which made the accused stop
from further executing the act. From the testimony of private complainant, [AAA] in the afore-numbered cases,
the prosecution failed to demonstrate beyond any shadow of doubt that accused-appellant's penis reached the
labia of the pudendum of AAA's vagina. There is no basis then to apply the rule that the introduction of the
penis into the aperture of the female organ (thereby touching the labia of the pudendum) already consummates
the case of rape. . . . 50
It should be added that under Article 6 of the Revised Penal Code, there is an attempt when the offender
commences the commission of a felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other than his own spontaneous
desistance. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for
there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the
vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration,
however slight, is not completed. 51
The Court thus affirms the conclusions of the Court of Appeals that it has been established beyond reasonable
doubt that appellant is guilty of six (6) counts of rape and two (2) counts of attempted rape. However, in light of
Rep. Act No. 9346, the appropriate penalties for both crimes should be amended.
II.
We shall not dwell at length on the proper penalty imposable on appellant for the six (6) counts of rape. The
sentence of death imposed by the RTC and affirmed by the Court of Appeals can no longer be affirmed in view
of Rep. Act No. 9346, titled "An Act Prohibiting the Imposition of Death Penalty in the Philippines." Section 2
of the law mandates that in lieu of the death penalty, the penalty of reclusion perpetua shall be imposed.
Correspondingly, the Court can no longer uphold the death sentences imposed by lower courts, but must, if the
guilt of the accused is affirmed, impose instead the penalty of reclusion perpetua, or life imprisonment when
appropriate. Since the passage of Rep. Act No. 9346, the Court has had occasion to effectuate such reduction in
recent cases such as People v. Tubongbanua 52 and People v. Cabalquinto. 53
III.
The question of what should be the appropriate penalty for the two (2) counts of attempted rape proves to be the
more challenging but interesting question facing the Court.
The Court of Appeals had sentenced appellant, for the attempted rape of AAA, to "an indeterminate penalty of
ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal
as maximum," for each count of attempted rape. There is no doubt as to the validity of this sentence at the time
it was meted prior to the enactment of Rep. Act No. 9346. Article 51 of the Revised Penal Code establishes the
penalty to be imposed upon the principals of an attempted felony:
ART. 51. . . . A penalty lower by two degrees than that prescribed by law for the consummated felony shall
be imposed upon the principals in an attempt to commit a felony. 54
What is the penalty "lower by two degrees than that prescribed by law" for attempted rape? Article 266-B of the
Revised Penal Code, which incorporates the amendments introduced by Rep. Act No. 8353, prescribes:
The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the
parent of the victim. . . . 55
The prescribed penalty for the consummated rape of a victim duly proven to have been under eighteen years of
age and to have been raped by her uncle, is death under Article 266-B of the Revised Penal Code. The
determination of the penalty two degrees lower than the death penalty entails the application of Articles 61 and
71 of the Revised Penal Code:
257
Art. 61. Rules of graduating penalties. For the purpose of graduating the penalties which, according to the
provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as principals of
any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed:
1. Death
2. Reclusion perpetua
1. When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree shall be
that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 of
this Code. 56
xxx xxx xxx
Article 71 of the Revised Penal Code (Article 71) warrants special attention, crucial as it is to our disposition of
this question. The provision reads:
3. Reclusion temporal
4. Prision mayor
5. Prision correctional
6. Arresto mayor
7. Destierro
Art. 71. Graduated scales. In the case in which the law prescribes a penalty lower or higher by one or more
degrees than another given penalty, the rules prescribed in Article 61 shall be observed in graduating such
penalty.
8. Arresto menor
The lower or higher penalty shall be taken from the graduated scale in which is comprised the given penalty:
9. Public censure
The courts, in applying such lower or higher penalty, shall observe the following graduated scales:
10. Fine 57
SCALE NO. 1
xxx xxx xxx
258
Following the scale prescribed in Article 71, the penalty two degrees lower than death is reclusion temporal,
which was the maximum penalty imposed by the Court of Appeals on appellant for attempted rape. Reclusion
temporal is a penalty comprised of three divisible periods, a minimum, a medium and a maximum.
At the same time, the Indeterminate Sentence Law prescribes that "the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be
within the range of the penalty next lower to that prescribed by the Code for the offense." The purpose of the
prescription of minimum and maximum periods under the Indeterminate Sentence Law is to effect the privilege
granted under the same law, for prisoners who have served the minimum penalty to be eligible for parole per the
discretion of the Board of Indiscriminate Sentence. 58 Thus, convicts sentenced to suffer death penalty or lifeimprisonment are ineligible under that law, as are persons sentenced to reclusion perpetua, an indivisible
penalty without minimum or maximum periods. 59
Hence, the Court of Appeals sentenced appellant to suffer the penalty for attempted rape, with a maximum
penalty within the range of reclusion temporal, and a minimum penalty within the range of the penalty next
lower, or prision mayor. If Rep. Act No. 9346 had not been enacted, the Court would have affirmed such
sentence without complication. However, the enactment of the law has given rise to the problem concerning the
imposable penalty. Appellant was sentenced to a maximum term within reclusion temporal since that is the
penalty two degrees lower than death. With the elimination of death as a penalty, does it follow that appellant
should now be sentenced to a penalty two degrees lower than reclusion perpetua, the highest remaining penalty
with the enactment of Rep. Act No. 9346? If it so followed, appellant would be sentenced to prision mayor in
lieu of reclusion temporal.
IV.
Obviously, our ruling on the appropriate penalty on appellant for attempted rape will affect not only appellant,
but several classes of convicts as well. Before we proceed with the discussion, the Court finds it necessary to
make the following qualification. DITEAc
Prior to the enactment of Rep. Act No. 9346, the death penalty was imposable under two different frames of
reference. This was especially made clear with the 1993 amendments to the Revised Penal Code through Rep.
Act No. 7659, or the Death Penalty Law. Under the Revised Penal Code, as amended, the death penalty was
provided for in two ways, namely: as the maximum penalty for "reclusion perpetua to death," and death itself as
an automatic and exclusive penalty. Death as the automatic penalty was mandated for the crimes of qualified
bribery "if it is the public officer who asks or demands such gift or present;" 60 kidnapping or detention "for the
purpose of extorting ransom from the victim or any other person;" 61 destructive arson wherein "death results;"
62 and rape qualified by any of the several circumstances enumerated under the law.
On the other hand, the penalty of "reclusion perpetua to death" was imposable on several crimes, including
murder, 63 qualified piracy, 64 and treason. 65 The imposition of the death penalty for crimes punishable by
"reclusion perpetua to death" depended on the appreciation of the aggravating and mitigating circumstances
generally outlined in Articles 13 and 14 of the Revised Penal Code. Reference to those two provisions was
unnecessary if the penalty imposed was death, as opposed to "reclusion perpetua to death."
There is no need for now to discuss the effects of Rep. Act No. 9346 on the penalties for frustrated and
attempted felonies which were punishable by "reclusion perpetua to death" if consummated, or on accomplices
and accessories to such felonies. Such situations do not relate to the case of appellant, who was convicted of
two (2) counts of attempted rape, which, if consummated, of course would have carried prior to the enactment
of Rep. Act 9346 the penalty of death, and not "reclusion perpetua to death."
The Court also recognizes that the graduation of penalties reckoned from "reclusion perpetua to death" differs
from that based on the exclusive penalty of death. For example, it has been held that the penalty two degrees
lower than "reclusion perpetua to death" is prision mayor. 66 In contrast, the Court has likewise held that for
qualified rape in the attempted stage, "the penalty . . . two (2) degrees lower than the imposable penalty of death
for the offense charged . . . is reclusion temporal." 67 In People v. Tolentino, 68 we ruled that the accused, who
had been sentenced to die for the rape of his nine (9)-year old stepdaughter, was guilty only of attempted rape.
In explaining that "reclusion temporal" was the proper penalty, the Court, through then Chief Justice Davide,
explained:
Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty lower by two
degrees than that prescribed by law for the consummated felony." In this case, the penalty for the rape if it had
been consummated would have been death, pursuant to Article 335 of the Revised Penal Code, as amended by
259
R.A. No. 7659, since [RT 69 ] was eight years old and TOLENTINO was the common-law spouse of [RT's]
mother. The last paragraph thereof provides:
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant
circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the
parent of the victim.
It is also for this reason that the controversy we are now addressing did not similarly arise after the enactment of
the 1987 Constitution, which prohibits the imposition of the death penalty subject to its subsequent readoption
at the choice of Congress. Generally, the highest penalty imposed under the Revised Penal Code was "reclusion
perpetua to death," a penalty composed of two indivisible penalties. As a result, the Court had no occasion, after
the passage of the 1987 Constitution, to consider the effect of the charter on penalties downgraded from a single
indivisible penalty. It was under Rep. Act No. 7659, passed in 1993, that some commonly occurring crimes,
such as qualified rape and kidnapping for ransom, were penalized with the single indivisible penalty of death.
The discussion for purposes of this decision will only center on crimes, such as qualified rape as defined in the
Revised Penal Code, as amended, for which the imposable penalty was death alone. Thus, our ruling will bear
no direct effect on the sentencing of accomplices and accessories or persons guilty of the attempted or frustrated
stage of felonies for which the imposable penalty was "reclusion perpetua to death."
xxx xxx xxx

Hence, it should be understood that any reference forthwith to the penalty of death does not refer to the penalty
of "reclusion perpetua to death."
The penalty in this case should have been reclusion temporal, which is the penalty lower by two degrees than
death. However, with the application of the Indeterminate Sentence Law, TOLENTINO may be sentenced to an
indeterminate imprisonment penalty whose minimum shall be within the range of prision mayor and whose
maximum shall be within the range of reclusion temporal in its medium period pursuant to Article 64 (1) of the
Revised Penal Code. 70
This dichotomy results from the application of Article 61 of the Revised Penal Code. Both reclusion perpetua
and death are indivisible penalties. Under Article 61 (2) of the Revised Penal Code, "[w]hen the penalty
prescribed for the crime is composed of two indivisible penalties . . . the penalty next lower in degree shall be
that immediately following the lesser of the penalties prescribed in the respective graduated scale." Hence, in
passing sentence on those convicted of attempted felonies which warranted the penalty of "reclusion perpetua to
death" if consummated, the Court has consistently held that penalty two degrees lower than "reclusion perpetua
to death" is prision mayor. In contrast, if the penalty for the consummated crime is the single indivisible penalty
of death, as was prescribed for several crimes under Rep. Act No. 7659, Article 61(1) of the Revised Penal Code
provides that "the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree
shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in
Article 71". Thus, the proper penalty two degrees lower than death is reclusion temporal.
V.
If there was a clear intent in Rep. Act No. 9346 to downgrade the penalties for convicts whose sentences had
been graduated beginning from death pursuant to Article 71, the Court would not hesitate to enforce such
downgrading based on clear statutory intent. However, nothing in Rep. Act No. 9346 expressly refers to those
penalties imposed on frustrated or attempted felonies, or on accessories and accomplices. DHcSIT
Section 1 of Rep. Act No. 9346 bears examination:
260
Section 1. The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act No. Eight
Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act Designating Death by
Lethal Injection, is hereby repealed. Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A. No.
7659), otherwise known as the Death Penalty Law, and all other laws, executive orders and decrees, insofar as
they impose the death penalty are hereby repealed or amended accordingly.
If the penalties for attempted rape of a minor, 71 among others, were deemed to have been amended by virtue of
Rep. Act No. 9346, such amendment can be justified under the ambit of the repealing clause, which reads, "all
other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or
amended accordingly." While this clause may, given its breadth, initially impress as the nature of a general
repealing clause, it is in actuality an express repealing clause. Section 1 specifically repeals all laws, executive
orders and decrees insofar as they impose the death penalty, and not merely such enactments which are
inconsistent with Rep. Act No. 9346.
Section 1 arguably presents more problems in that regard with its utilization of the particular phrase "insofar as
they impose the death penalty." We can entertain two schools of thought in construing this provision, both of
them rooted in literalist interpretations. First, it can be claimed that the present application of the penalties for
attempted rape of a minor (among many examples) does not "impose the death penalty," since none of the
convicts concerned would face execution through the application of the penalty for attempted rape. Hence, the
statutory provisions enforced in determining the penalty for attempted rape, or other crimes not punishable by
death, are not amended by Rep. Act No. 9346.
On the other hand, the operation of the provisions imposing the penalty for attempted rape of a minor
necessarily calls for the application, if not its literal imposition, of death as a penalty, in the context of applying
the graduated scale of penalties under Article 71 of the Revised Penal Code. If we were to construe "impose" as
to mean "apply," then it could be argued that Article 71 was indeed amended by Rep. Act No. 9346. After all,
the application of Article 71 to crimes such as attempted rape of a minor call for the actual operation of the
death penalty not only in theory, but as a means of determining the proper graduated penalty.
On face value, the attractive worth of the firstly offered line of thinking is enhanced by its innate conservatism,
limiting as it would the effects of Rep. Act No. 9346. It also can be understood if confronted with the option of
employing either a liberal or a conservative construction, there is a natural tendency to employ the conservative
mode. Further, the reasoning is seemingly consistent with that employed by the Court in People v. Muoz, 72 a
decision which will be thoroughly analyzed in the course of this discussion.
If the true intent of Rep. Act No. 9346 was to limit the extent of the "imposition" of the death penalty to actual
executions, this could have been accomplished with more clarity. For example, had Section 1 read instead
"insofar as they sentence an accused to death," there would have been no room for doubt that only those
statutory provisions calling for actual executions would have been repealed or amended. The inability of
Congress to shape the repealing clause in so specific a fashion does leave open the question whether Congress
did actually intend to limit the operation of Rep. Act No. 9346 to actual executions only.
But let us for now test that premise by assuming for the nonce that the legislative intent of Rep. Act No. 9346
was to limit the prohibition of the law to the physical imposition of the death penalty, without extending any
effect to the graduated scale of penalties under Article 71 of the Revised Penal Code.
VI.
There are troubling results if we were to uphold, based on legislative intent, the interpretation of Rep. Act No.
9346 that limits its effects only to matters relating to the physical imposition of the death penalty.
Illustrations are necessary. The easy demonstration of iniquitous results is in the case of accomplices. Under
Article 267 of the Revised Penal Code, as amended, kidnapping for ransom was punishable by death. Let us say
X and Y were tried for the crime. X was charged as a principal for having directly participated in the
kidnapping. Y was charged as an accomplice for having allowed X to use his house to detain the victim, even
though Y was abroad at the time of the crime and otherwise had no other participation therein. Both X and Y
were convicted by final judgment. Since X could no longer be meted the death penalty, he is sentenced instead
to reclusion perpetua. Ordinarily, Y as an accomplice should receive the penalty next lower in degree, or
reclusion temporal. Yet following the "conservative" interpretation of Rep. Act No. 9346, the graduation of
penalties remains unaffected with the enactment of the new law. Thus, under Article 71, which would still take
into account the death penalty within the graduated scale, Y, as an accomplice, would be sentenced to reclusion
perpetua, the same penalty as the principal.
261
It might be countered that part of the legislative intent of Rep. Act No. 9346, by retaining the graduated scale of
penalties under Article 71, was to equalize the penalties of principals and accomplices for crimes previously
punishable by death. We do not doubt that the legislature has the theoretical capability to amend the penal law
in such fashion. Yet given the drastic effects of equalizing the penalties for principals and accomplices, a step
that runs contrary to entrenched thought in criminal law, one could reasonably assume that a legislature truly
oriented to enact such change would have been candid enough to have explicitly stated such intent in the law
itself. Of course, nothing in Rep. Act No. 9346, either in the caption or in the provisions, explicates the intention
to equalize the penalties for principals and accomplices in any crime at all. TSacID
Moreover, it cannot be denied that it would, at bare minimum, seem strange that the penalties for principals and
accomplices are equalized in some crimes, and not in others. Let us return to our previous example of X and Y,
but this time, assume that they were charged for simple kidnapping, with no qualifying circumstance that would
have resulted in the imposition of the death penalty. Since the crime is not punishable by death, Rep. Act No.
9346 would have no effect in the imposition of the penalty for simple kidnapping. Accordingly, X would have
been sentenced to reclusion perpetua as the principal, while Y would have been sentenced to reclusion temporal
as an accomplice.
Since simple kidnapping is a comparatively lighter crime than kidnapping for ransom, the lesser penalties are
justified. Since Y was merely an accomplice to the crime of simple kidnapping, the imposition on him of a
lighter penalty than X is in accord with the Revised Penal Code and established juridical and legal thought. Less
justifiable would be the notion that in kidnapping for ransom, the principal and the accomplice would receive
the same penalty, while in simple kidnapping, the principal suffers a higher penalty than the accomplice.
Frankly, there is no rational explanation for such a disparity, and no legal justification other than the recognition
that Congress has the power to will it so.
Admittedly, the impact of Rep. Act No. 9346 is less dramatic in relation to frustrated and attempted felonies
which were punishable by death if consummated. The consummated felony previously punishable by death
would now be punishable by reclusion perpetua. At the same time, the same felony in its frustrated stage would,
under the foregoing premise in this section, be penalized one degree lower from death, or also reclusion
perpetua. It does not seem right, of course, that the same penalty of reclusion perpetua would be imposed on
both the consummated and frustrated felony. However, the anomaly would be mainly in theory, as we recognize
that those felonies previously punishable by death are improbable of commission in their frustrated stage, unlike
several felonies punishable by "reclusion perpetua to death," 73 such as murder, which may be frustrated.
Still, it cannot be denied that these felonies previously punishable by death are capable of commission in their
attempted stages and that the Revised Penal Code provides that the penalty for attempted felonies is "a penalty
lower by two degrees than that prescribed by law for the consummated felony." The Court has thus consistently
imposed reclusion temporal, the penalty two degrees lower than death, as the maximum term for attempted
felonies which, if consummated, would have warranted the death penalty. 74 If it were to be insisted that Rep.
Act No. 9346 did not affect at all the penalties for attempted felonies, then those found guilty of the subject
attempted felonies would still be sentenced to reclusion temporal, even though the "penalty lower by two
degrees than that prescribed by law for the consummated felony" would now be prision mayor.
It should be pointed out that the interpretation of Rep. Act No. 9346 that would sanction a penalty for some
attempted felonies that is only one degree lower than the consummated crime would, again, be disharmonious
and inconsistent with the Revised Penal Code and established thought in criminal law. Conceding again that the
legislature has the discretion to designate the criminal penalties it sees fit, a regime that foists a differential
theoretical basis for the punishment of different attempted felonies resulting in discriminatory penalties is not
only irrational but also, to say the least, highly suspect. Considering that physical liberties are at stake, it would
be a most cruel joke if such discriminatory effects ensued not from deliberate legislative will, but from
oversight.
VII.
The implementation of Rep. Act No. 9346 in a way that leaves extant the penalties for accomplices, accessories,
frustrated and attempted felonies, clearly results in illogical, iniquitous and inconsistent effects. In contrast, no
similar flaws ensue should we construe Rep. Act No. 9346 instead as not having barred the application of the
death penalty even as a means of depreciating penalties other than death. In particular, the operative amendment
that would assure the integrity of penalties for accomplices, accessories, frustrated and attempted felonies lies in
Article 71, which ranks "death" at the top of the scale for graduated penalties.
Simply put, the negation of the word "death" as previously inscribed in Article 71 will have the effect of
appropriately downgrading the proper penalties attaching to accomplices, accessories, frustrated and attempted
felonies to the level consistent with the rest of our penal laws. Returning to our previous examples, Y, the
convicted accomplice in kidnapping for ransom, would now bear the penalty of reclusion temporal, the penalty
one degree lower than that the principal X would bear (reclusion perpetua). Such sentence would be consistent
with Article 52 of the Revised Penal Code, as well as Article 71, as amended, to remove the reference to
262
"death." Moreover, the prospect of the accomplice receiving the same sentence as the principal, an anomalous
notion within our penal laws, would be eliminated. Thus, the same standard would prevail in sentencing
principals and accomplices to the crime of kidnapping in ransom, as that prescribed to the crime of simple
kidnapping.
The harmonization that would result if Rep. Act No. 9346 were construed as having eliminated the reference to
"death" in Article 71 would run across the board in our penal laws. Consistent with Article 51 of the Revised
Penal Code, those convicted of attempted qualified rape would receive the penalty two degrees lower than that
prescribed by law, now Rep. Act No. 9346, for qualified rape. ETaSDc
There are principles in statutory construction that will sanction, even mandate, this "expansive" interpretation of
Rep. Act No. 9346. The maxim interpretare et concordare legibus est optimus interpretandi embodies the
principle that a statute should be so construed not only to be consistent with itself, but also to harmonize with
other laws on the same subject matter, as to form a complete, coherent and intelligible system a uniform
system of jurisprudence. 75 "Interpreting and harmonizing laws with laws is the best method of
interpretation. . . . This manner of construction would provide a complete, consistent and intelligible system to
secure the rights of all persons affected by different legislative and quasi-legislative acts." 76 There can be no
harmony between Rep. Act No. 9346 and the Revised Penal Code unless the later statute is construed as having
downgraded those penalties attached to death by reason of the graduated scale under Article 71. Only in that
manner will a clear and consistent rule emerge as to the application of penalties for frustrated and attempted
felonies, and for accessories and accomplices.
It is also a well-known rule of legal hermeneutics that penal or criminal laws are strictly construed against the
state and liberally in favor of the accused. 77 If the language of the law were ambiguous, the court will lean
more strongly in favor of the defendant than it would if the statute were remedial, as a means of effecting
substantial justice. 78 The law is tender in favor of the rights of an individual. 79 It is this philosophy of caution
before the State may deprive a person of life or liberty that animates one of the most fundamental principles in
our Bill of Rights, that every person is presumed innocent until proven guilty.
Resort to the aforementioned principles in statutory construction would not have been necessary had Rep. Act
No. 9346 ineluctably stated that the repeal of all laws imposing the death penalty did not engender the
corresponding modification of penalties other than death, dependent as these are on "death" as a measure under
the graduated scale of penalties under Article 71. Admittedly, if this were indeed the intent of Congress, and
such intent were unequivocally expressed in Rep. Act No. 9346, the resulting inequities and inconsistencies we
had earlier pointed out would have remained. If that were to be the case, we would have acknowledged, perhaps
tacitly, that such inequities and inconsistencies fell part of the legislative intent. It does not speak well of a
Congress to be deliberately inconsistent with, or ignorant of its own prior enactments. Yet ultimately, Section 1
of Rep. Act No. 9346 is not expressive of such rash or injudicious notions, as it is susceptible to a reading that
would harmonize its effects with the precepts and practices that pervade our general penal laws, and in a manner
that does not defy the clear will of Congress.
VIII.
One who would like to advocate that Rep. Act No. 9346 did not correspondingly amend any of the penalties
other than death in our penal laws would most certainly invoke our ruling in People v. Muoz, 80 decided in
1989. Therein, a divided Court ruled in that the constitutional bar on the imposition of the death penalty did not
enact "a corresponding modification in the other periods [in penalties]", there being no expression of "such a
requirement . . . in Article III, Section 19(1) of the Constitution or indicat[ion] therein by at least clear and
unmistakable implication." 81 In so concluding, the Court made the oft-cited pronouncement that there was
nothing in the 1987 Constitution "which expressly declares the abolition of the death penalty." 82
It is time to re-examine Muoz and its continued viability in light of Rep. Act No. 9346. More precisely, would
Muozas precedent deter the Court from ruling that Rep. Act No. 9346 consequently downgraded penalties
other than death?
It can be recalled that the accused in Muoz were found guilty of murder, which under the Revised Penal Code,
carried the penalty of reclusion temporal in its maximum period to death. The subject murders therein were not
attended by any modifying circumstance, and thus penalized in the penalty's medium term. Jurisprudence
previous to Muoz held that the proper penalty in such instances should be "the higher half of reclusion
temporal maximum," with reclusion temporal maximum, divided into two halves for that purpose. Muoz
rejected this formulation, holding instead that the penalty should be reclusion perpetua. Towards this
conclusion, the Court made the above-cited conclusions relating to the constitutional abolition of the death
penalty, and the charter's effects on the other periods. Six justices dissented from that ruling, and as recently as
1997, a member of the Court felt strongly enough to publish a view urging the reexamination of Muoz. 83
263
It would be disingenuous to consider Muoz as directly settling the question now befacing us, as the legal
premises behind Muoz are different from those in this case. Most pertinently, Muoz inquired into the effects
of the Constitution on the proper penalty for murder; while herein, we are ascertaining the effects of Rep. Act
No. 9346 on the proper penalty for attempted qualified rape. Muoz may have pronounced that the Constitution
did not abolish the death penalty, but that issue no longer falls into consideration herein, the correct query now
being whether Congress has banned the death penalty through Rep. Act No. 9346. Otherwise framed, Muoz
does not preclude the Court from concluding that with the express prohibition of the imposition of the death
penalty Congress has unequivocally banned the same.
Muoz made hay over the peculiar formulation of Section 19(1), Article III, which provided that "[n]either shall
death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter
provides for it." Muoz and its progenies, have interpreted that provision as prohibiting the actual imposition of
the death penalty, as opposed to enacting an amendatory law that eliminates all references and applications of
the death penalty in our statutes. It can also be understood and appreciated that at the time Muoz was decided,
it would have been polemical to foster an unequivocal pronouncement that Section 19(1), Article III abolished
the death penalty, since the very provision itself acknowledged that Congress may nonetheless subsequently
provide for the penalty "for compelling reasons involving heinous crimes," as Congress very well did just four
(4) years after Muoz. No such language exists in Rep. Act No. 9346. Of course, the legislature has the inherent
and constitutional power to enact laws prescribing penalties for crimes, and the Constitution will not prohibit
Congress from reenacting the death penalty "for compelling reasons involving heinous crimes." Yet it was that
express stipulation in the Constitution that dissuaded the Court from recognizing the constitutional abolition of
the death penalty; and there is no similar statutory expression in Rep. Act No. 9346, which could be construed
as evocative of intent similar to that of the Constitution. TAHIED
The doctrine in Muoz that the constitutional prohibition on the imposition of the death penalty did not enact a
corresponding modification of other penalties is similarly irrelevant to this case, which calls for an examination
as to whether such corresponding modifications of other penalties arose as a consequence of Rep. Act No. 9346,
and not the Constitution.
For purposes of legal hermeneutics, the critical question is whether Rep. Act No. 9346 intended to delete the
word "death" as expressly provided for in the graduated scale of penalties under Article 71. Muoz did not
engage in an analogous inquiry in relation to Article 71 and the Constitution, for what was relevant therein was
not the general graduated scale of penalties, but the range of the penalties for murder. Herein, at bare minimum,
no provision in Rep. Act No. 9346 provides a context within which the concept of "death penalty" bears
retentive legal effect, especially in relation to Article 71. Unlike the Constitution, Rep. Act No. 9346 does
expressly stipulate the amendment of all extant laws insofar as they called for the imposition of the penalty of
death.
The impression left by Muoz was that the use of the word "imposition" in the Constitution evinced the framer's
intent to retain the operation of penalties under the Revised Penal Code. In the same vein, one might try to
construe the use of "imposition" in Rep. Act No. 9346 as a means employed by Congress to ensure that the
"death penalty", as applied in Article 71, remain extant. If the use of "imposition" was implemented as a means
of retaining "death" under Article 71, it would have been a most curious, roundabout means indeed. The Court
can tolerate to a certain degree the deliberate vagueness sometimes employed in legislation, yet constitutional
due process demands a higher degree of clarity when infringements on life or liberty are intended. We have
ruled, on due process grounds, as arbitrary and oppressive a tax assessed on a standard characterized as "nothing
but blather in search of meaning." 84 In the matter of statutes that deprive a person of physical liberty, the
demand for a clear standard in sentencing is even more exacting.
Yet in truth, there is no material difference between "imposition" and "application," for both terms embody the
operation in law of the death penalty. Since Article 71 denominates "death" as an element in the graduated scale
of penalties, there is no question that the operation of Article 71 involves the actual application of the death
penalty as a means of determining the extent which a person's liberty is to be deprived. Since Rep. Act No. 9346
unequivocally bars the application of the death penalty, as well as expressly repeals all such statutory provisions
requiring the application of the death penalty, such effect necessarily extends to its relevance to the graduated
scale of penalties under Article 71.
We cannot find basis to conclude that Rep. Act No. 9346 intended to retain the operative effects of the death
penalty in the graduation of the other penalties in our penal laws. Muoz cannot enjoin us to adopt such
conclusion. Rep. Act No. 9346 is not swaddled in the same restraints appreciated by Muoz on Section 19(1),
Article III. The very Congress empowered by the Constitution to reinstate the imposition of the death penalty
once thought it best to do so, through Rep. Act No. 7650. Within the same realm of constitutional discretion,
Congress has reversed itself. It must be asserted that today, the legal status of the suppression of the death
penalty in the Philippines has never been more secure than at any time in our political history as a nation.
Following Muoz, the sovereign people, through the 1987 Constitution, might not have willed the abolition of
the death penalty and instead placed it under a suspensive condition. As such, we affirmed the characterization
264
of the death penalty during the interregnum between the 1987 Constitution and its reimposition through law as
being "in a state of hibernation." 85 No longer. It reawakened then it died; because the sovereign people,
through Rep. Act No. 9346, banned the death penalty. Only by an Act of Congress can it be reborn. Before that
day, the consideration of death as a penalty is bereft of legal effect, whether as a means of depriving life, or as a
means of depriving liberty.
Despite our present pronouncement on the ban against of the death penalty, we do not acknowledge that Muoz
lacked legal justification when it was decided; that its application as precedent prior to Rep. Act No. 9346 was
erroneous; or that previous sentences imposed on convicts on the basis of Muoz were wrong. Muoz properly
stood as the governing precedent in the matter of sentences that passed finality prior to Rep. Act No. 9346; and
the consistent reliance by the courts on its doctrines entrenched its footing in criminal law jurisprudence.
IX.
Rep. Act No. 7659, in the course of reintroducing the death penalty in the Philippines, also effectively classified
the crimes listed therein as "heinous," within constitutional contemplation. Such reclassification under Rep. Act
No. 7659 was accompanied by certain legal effects other than the imposition of the death penalty, such as the
increase in imposable fines attached to certain heinous crimes. 86 The categorization of certain crimes as
"heinous", constituting as it does official recognition that some crimes are more odious than others, has also
influenced this Court in adjudging the proper pecuniary indemnities awarded to the victims of these crimes.
Hence, a general inclination persists in levying a greater amount of damages on accused found guilty of heinous
crimes. TcDIEH
It should be understood that the debarring of the death penalty through Rep. Act No. 9346 did not
correspondingly declassify those crimes previously catalogued as "heinous". The amendatory effects of Rep.
Act No. 9346 extend only to the application of the death penalty but not to the definition or classification of
crimes. True, the penalties for heinous crimes have been downgraded under the aegis of the new law. Still, what
remains extant is the recognition by law that such crimes, by their abhorrent nature, constitute a special category
by themselves. Accordingly, Rep. Act No. 9346 does not serve as basis for the reduction of civil indemnity and
other damages that adhere to heinous crimes.
Having pronounced the statutory disallowance of the death penalty through Rep. Act No. 9346 and the
corresponding modification of penalties other than death through that statute, we now proceed to discuss the
effects of these rulings.
As to sentences not yet handed down, or affirmed with finality, the application is immediate. Henceforth,
"death," as utilized in Article 71 of the Revised Penal Code, shall no longer form part of the equation in the
graduation of penalties. For example, in the case of appellant, the determination of his penalty for attempted
rape shall be reckoned not from two degrees lower than death, but two degrees lower than reclusion perpetua.
Hence, the maximum term of his penalty shall no longer be reclusion temporal, as ruled by the Court of
Appeals, but instead, prision mayor.
There should be little complication if the crime committed was punishable by the free-standing penalty of
"death," as utilized in Rep. Act No. 7659, as opposed to the ranged penalty of "reclusion perpetua to death," as
often used in the Revised Penal Code and other penal laws. The facts of the present case do not concern the
latter penalty, hence our reluctance to avail of an extended discussion thereof. However, we did earlier observe
that both "reclusion perpetua" and death are indivisible penalties. Under Article 61 (2) of the Revised Penal
Code, "[w]hen the penalty prescribed for the crime is composed of two indivisible penalties . . . the penalty next
lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective
graduated scale." Hence, as we earlier noted, our previous rulings that the penalty two degrees lower than
"reclusion perpetua to death" is prision mayor.
Then there is the matter of whether retroactive effect should be extended to this new ruling, favorable as it is to
persons previously convicted of crimes which, if consummated or participated in as a principal, would have
warranted the solitary penalty of death. We see no choice but to extend the retroactive benefit. Article 22 of the
Revised Penal Code states that "[p]enal laws shall have a retroactive effect insofar as they favor the person
guilty of a felony, who is not a habitual criminal [ 87 ] . . . although at the time of the publication of such laws a
final sentence has been pronounced and the convict is serving the same." Given that we have ruled that Rep. Act
No. 9346 downgraded the penalties for such crimes, the benefit of Article 22 has to apply, except as to those
persons defined as "habitual criminal[s]." Indeed, Rep. Act No. 9346 expressly recognized that its enactment
would have retroactive beneficial effects, referring as it did to "persons . . . whose sentences were reduced to
reclusion perpetua by reason of this Act." 88
X.
265
It cannot be discounted that by operation of Rep. Act No. 9346 and Article 22 of the Revised Penal Code, there
may be convicts presently serving their original sentences whose actual served terms exceed their reduced
sentences. It should be understood that this decision does not make operative the release of such convicts,
especially as there may be other reasons that exist for their continued detention. There are remedies under law
that could be employed to obtain the release of such prisoners, if warranted. Offices such as the Public
Attorney's Office and non-governmental organizations that frequently assist detainees possess the capacity and
acumen to help implement the release of such prisoners who are so entitled by reason of this ruling.
XI.
We close by returning to the matter of appellant Alfredo Bon. By reason of Rep. Act No. 9346, he is spared the
death sentence, and entitled to the corresponding reduction of his penalty as a consequence of the downgrading
of his offense from two (2) counts consummated rape to two (2) counts of attempted rape. For the six (6) counts
of rape, we downgrade the penalty of death to reclusion perpetua with no eligibility for parole, pursuant to Rep.
Act No. 9346. For each of the two (2) counts of attempted rape, we downgrade by one degree lower the penalty
imposed by the Court of Appeals. We hold that there being no mitigating or aggravating circumstances, the
penalty of prision mayor should be imposed in it medium period. Consequently, we impose the new penalty of
two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight (8) years and one
(1) day of prision mayor as maximum.
WHEREFORE, in light of the foregoing, the Decision of the Court of Appeals is hereby AFFIRMED WITH
MODIFICATION. The Court sentences appellant Alfredo J. Bon to the penalty of reclusion perpetua with no
possibility of parole for each of the six (6) counts of consummated rape committed against AAA in Criminal
Case Nos. 6699, 6902, and against BBB in Criminal Case Nos. 6689, 6903, 6905, and 6907. Appellant is further
ORDERED to indemnify AAA and BBB for the crime of consummated rape, in the amounts of P50,000.00 as
civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages for each of them.
For the two (2) counts of attempted rape of AAA in Criminal Cases No. 6906 and 6908, appellant is hereby
SENTENCED to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision
correccional as minimum, to eight (8) years and one (1) of prision mayor as maximum for each count of
attempted rape. In addition, appellant is ORDERED to indemnify AAA for each of the two (2) counts of
attempted rape in the amounts of P30,000.00 as civil indemnity, P25,000.00 as moral damages and P10,000.00
as exemplary damages. cHCSDa
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio Morales, Callejo, Sr., Azcuna, Chico-Nazario, Garcia and Velasco, Jr., JJ., concur.
||| (People v. Bon, G.R. No. 166401, [October 30, 2006], 536 PHIL 897-943)
Lastly, as to damages, the Court awards AAA P30,000.00 as civil indemnity, P25,000.00 as moral damages and
P10,000.00 as exemplary damages for each count of attempted rape, it being the prevailing rate of indemnity as
pronounced in the recent case of People v. Miranda. 89
Separately, the Court applies prevailing jurisprudence 90 in awarding to BBB and AAA P75,000.00 as civil
indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages, for each count of
consummated rape.
EN BANC
[G.R. No. 108747. April 6, 1995.]
PABLO C. FRANCISCO, petitioner, vs. COURT OF APPEALS AND THE HONORABLE MAXIMO C.
CONTRERAS, respondents.
266
Carlo L. Cruz for petitioner.
The Solicitor General for respondents.
probation is based on the assumption that those sentenced to higher penalties pose too great a risk to society, not
just because of their demonstrated capability for serious wrongdoing but because of the gravity and serious
consequences of the offense they might further commit. The Probation Law, as amended, disqualifies only those
who have been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised Penal Code,
and not necessarily those who have been convicted of multiple offenses in a single proceeding who are deemed
to be less perverse. Hence, the basis of the disqualification is principally the gravity of the offense committed
and the concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six (6)
years are not generally considered callous, hard core criminals, and thus may avail of probation.
SYLLABUS
1. CRIMINAL LAW; PROBATION; A MERE PRIVILEGE AND GRANTING THEREOF RESTS SOLELY
UPON THE DISCRETION OF THE COURT. Probation is a mere privilege, not a right. Its benefits cannot
extend to those not expressly included. Probation is not a right of an accused, but rather an act of grace and
clemency or immunity conferred by the state which may be granted by the court to a seemingly deserving
defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he
stands convicted. It is a special prerogative granted by law to a person or group of persons not enjoyed by others
or by all. Accordingly, the grant of probation rests solely upon the discretion of the court which is to be
exercised primarily for the benefit of organized society, and only incidentally for the benefit of the accused. The
probation law should not therefore be permitted to divest the state or its government of any of the latter's
prerogatives, rights or remedies, unless the intention of the legislature to this end is clearly expressed, and no
person should benefit from the terms of the law who is not clearly within them.
2. ID.; ID.; NOT AVAILABLE WHERE DEFENDANT HAS PERFECTED AN APPEAL; APPEAL TO
REDUCE PENALTY, IMMATERIAL. Neither Sec. 4 of the Probation Law, as amended, which clearly
mandates that "no application for probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction," nor Llamado v. Court of Appeals which interprets the quoted
provision, offers any ambiguity or qualification. As such, the application of the law should not be subjected to
any to suit the case of petitioner. While the proposition that an appeal should not bar the accused from applying
for probation if the appeal is solely to reduce the penalty to within the probationable limit may be equitable, we
are not yet prepared to accept this interpretation under existing law and jurisprudence.
3. ID.; ID.; ACCUSED SENTENCED TO MORE THAN SIX (6) YEARS OF IMPRISONMENT,
DISQUALIFIED; REASON. Fixing the cut-off point at a maximum term of six (6) years imprisonment for
4. ID.; ID.; FILING OF APPLICATION AFTER RECEIPT OF DECISION AND AFTER WARRANT OF
ARREST WAS ISSUED; CASE AT BENCH. The application for probation was filed way beyond the period
allowed by law. This is vital and crucial. From the records it is clear that the application for probation was filed
"only after a warrant for the arrest of petitioner had been issued . . . (and) almost two months after (his) receipt
of the Decision" of the RTC. This is a significant fact which militates against the instant petition. Our minds
cannot simply rest easy on the proposition that an application for probation may yet be granted even if it was
filed only after judgment has become final, the conviction already set for execution and a warrant of arrest
issued for service of sentence. The argument that petitioner had to await the remand of the case to the MeTC,
which necessarily must be after the decision of the RTC had become final, for him to file the application for
probation with the trial court, is to stretch the law beyond comprehension. The law, simply, does not allow
probation after an appeal has been perfected. Accordingly, considering that prevailing jurisprudence treats
appeal and probation as mutually exclusive remedies, and petitioner appealed from his conviction by the MeTC
although the imposed penalties were already probationable, and in his appeal, he asserted only his innocence
and did not even raise the issue of the propriety of the penalties imposed on him, and finally, he filed an
application for probation outside the period for perfecting an appeal granting he was otherwise eligible for
probation, the instant petition for review should be as it is hereby DENIED.
5. ID.; PENALTIES; MULTIPLE PRISON TERMS IN ONE DECISION SHOULD NOT BE ADDED;
SEPARATE PENALTIES IMPOSED, BASIS OF PROBATION; CASE AT BENCH. At the outset, the
penalties imposed by the MeTC were already probationable. Hence, there was no need to appeal if only to
reduce the penalties to within the probationable period. Multiple prison terms imposed against an accused found
guilty of several offenses in one decision are not, and should not be, added up. And, the sum of the multiple
prison terms imposed against an applicant should not be determinative of his eligibility for, nay his
disqualification from, probation. The multiple prison terms are distinct from each other, and if none of the terms
exceeds the limit set out in the Probation Law, i.e., not more than six (6) years, then he is entitled to probation,
unless he is otherwise specifically disqualified. The number of offenses is immaterial as long as all the penalties
imposed, taken separately, are within the probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses
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the word maximum, not total, when it says that "[t]he benefits of this Decree shall not be extended to those . . .
sentenced to serve a maximum term of imprisonment of more than six years." Evidently, the law does not intend
to sum up the penalties imposed but to take each penalty separately and distinctly with the others. Consequently,
even if petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year
and eight (8) months of prision correccional sixteen (16) times as he was sentenced to serve the prison term for
"each crime committed on each date of each case, as alleged in the information(s)," and in each of the four (4)
informations, he was charged with having defamed the four (4) private complainants on four (4) different,
separate days, he was still eligible for probation, as each prison term imposed on petitioner was probationable.
6. STATUTORY CONSTRUCTION; WHERE THE LAW DOES NOT DISTINGUISH, THE COURTS
SHOULD NOT DISTINGUISH; PROVISION ON PROBATION LAW DISQUALIFYING ACCUSED WHO
HAS PERFECTED APPEAL, CLEAR AND UNAMBIGUOUS; CASE AT BENCH. That an appeal should
not bar the accused from applying for probation if the appeal is taken solely to reduce the penalty is simply
contrary to the clear and express mandate of Sec. 4 of the Probation Law, as amended, which opens with a
negative clause, "no application for probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction." And where the law does not distinguish; the courts should not
distinguish; where the law does not make exception the court should not except.
7. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH; FAILURE TO MOVE TO QUASH

OTHER INFORMATIONS, DEEMED A WAIVER THEREOF. Perhaps it should be mentioned that at the
outset, petitioner, in accordance with Sec. 3, par. (e), Rule 117 of the Rules of Court, should have moved to
quash as each of the four (4) Informations filed against him charged four (4) separate crimes of grave oral
defamation, committed on four (4) separate days. His failure to do so however may now be deemed a waiver
under Sec. 8 of the same Rule and he can be validly convicted, as in the instant case, of as many crimes charged
in the Information.
MENDOZA, J., dissenting opinion:
1. CRIMINAL LAW; PROBATION; MAY BE AVAILED OF WHERE ACCUSED APPEALED HIS CASE
AND SENTENCE REDUCED TO IMPRISONMENT OF NOT MORE THAN SIX (6) YEARS. Nothing in
PD 1990 to suggest that in limiting the accused to the choice of either appealing from the decision of the trial
court or applying for probation, the purpose is to deny him the right to probation in cases like the one at bar
where he becomes eligible for probation only because on appeal his sentence is reduced. The purpose of the
amendment, it bears repeating, is simply to prevent speculation or opportunism on the part of an accused who,
although eligible for probation, does not at once apply for probation, doing so only after failing in his appeal.
2. ID.; ID.; SHOULD NOT BE REGARDED PRIMARILY AS A PRIVILEGE BUT SHOULD BE APPLIED
IN FAVOR OF THE ACCUSED TO HELP HIM DEVELOP INTO A LAW-ABIDING AND SELFRESPECTING INDIVIDUAL. To regard probation, however, as a mere privilege, to be given to the accused
only where it clearly appears he comes within its letter is to disregard the teaching in many cases that the
Probation Law should be applied in favor of the accused not because it is a criminal law it is not but to
achieve its beneficent purpose. (Santos To v. Pao, 120 SCRA 8, 14 [1983]). The niggardly application of the
law would defeat its purpose to "help the probationer develop into a law-abiding and self-respecting individual"
(Baclayon v. Mutia, 129 SCRA 148, 149 [1984], per Teehankee, J.) or "afford [him] a chance to reform and
rehabilitate himself without the stigma of a prison record, to save government funds that may otherwise be spent
for his food and maintenance while incarcerated, and to decongest the jails of the country." (Del Rosario v.
Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J.)
3. ID.; ID.; ACCUSED TO BE QUALIFIED MUST NOT HAVE PERFECTED AN APPEAL FROM THE
JUDGMENT OF CONVICTION; EXCEPTION; CASE AT BAR. It is argued that there is a difference
because an accused who pleads "not guilty" in the beginning, later acknowledges his guilt and shows contrition
after he is found guilty. So does an accused who appeals a sentence because under it he is not qualified for
probation, but after the penalty is reduced, instead of appealing further, accepts the new sentence and applies for
probation. This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in which
it was held that because the petitioner had appealed his sentence, he could not subsequently apply for probation.
For, unlike petitioner in the case at bar, the accused in that case could have applied for probation as his original
sentence of one year of prision correccional did not disqualify him for probation. That case fell squarely within
the ambit of the prohibition in Sec. 4 that one who applies for probation must not "have perfected an appeal
from the judgment of conviction."
4. ID.; ID.; PENALTIES IMPOSED ON ACCUSED SHOULD BE TAKEN IN THEIR TOTALITY IN

APPLYING FOR PROBATION. It is contended that petitioner did not have to appeal because under the
original sentence meted out to him he was not disqualified for probation. The issue here is whether the multiple
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prison terms imposed on petitioner are to be considered singly or in their totality for the purpose of Sec. 9(a)
which disqualifies from probation those "sentenced to serve a maximum term of imprisonment of more than six
years." I submit that they should be taken in their totality. As the sentence originally imposed on petitioner was
for "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional in each crime
committed on each date of each case" and as there are four offenses of grave oral defamation against petitioner
in each of the four cases, the total prison term which he would have to serve was 26 years and 8 months. This is
clearly beyond the probationable maximum allowed by law. It is said, however, that even if the totality of the
prison terms is the test, the modified sentence imposed by the RTC would not qualify the petitioner for
probation because he has to suffer imprisonment of eight months sixteen times. That is not so. The RTC only
"sentence[d] the said accused in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment."
This means eight (8) months times four (4), since there are four cases, or 32 months or 2 years and 8 months.
That the duration of a convict's sentence is determined by considering the totality of several penalties for
different offenses committed is also implicit in the provisions of the Revised Penal Code on the accumulation of
penalties.
5. ID.; ID.; APPLICATION SHALL BE FILED WITH THE TRIAL COURT; ACCUSED HAS TO AWAIT
THE REMAND OF CASE TO THE TRIAL COURT AFTER SENTENCE IS MODIFIED TO APPLY FOR
PROBATION. It is said that there is a more fundamental reason for denying probation in this case and that is
that petitioner applied for probation only after his case had been remanded to the MeTC for the execution of its
decision as modified. But that is because Sec. 4 provides that "an application for probation shall be filed with
the trial court." In the circumstances of this case, petitioner had to await the remand of the case to the MeTC,
which necessarily must be after the decision of the RTC had become final.
6. ID.; PENALTIES; TOTALITIES THEREOF TAKEN INTO CONSIDERATION IN APPLYING FOR

PROBATION. In the case at bar, it can not be said that in appealing the decision of the MeTC petitioner was
principally motivated by a desire to be acquitted. While acquittal might have been an alluring prospect for him,
what is clear is that he had a reason for appealing because under the sentence given to him he was disqualified
to apply for probation. The MeTC had originally sentenced him to 1 year and 1 day to 1 year and 8 months of
prision correccional for "each crime committed on each date of each case, as alleged in the information[s]." This
meant, as the majority opinion points out, that petitioner had to suffer the prison term of 1 year and 1 day to 1
year and 8 months sixteen times, since he was found guilty of four crimes of grave oral defamation in each of
four cases. The totality of the penalties imposed on petitioner (26 years and 8 months) thus exceeded the limit of
six (6) years of imprisonment allowed by 9(a) and disqualified him for probation. It was only after this penalty
was reduced on appeal to a straight penalty of eight months imprisonment in each case or to a total term of 2
years and 8 months in the four cases that petitioner became eligible for probation. Then he did not appeal
further although he could have done so.
VITUG, J., separate opinion:
1. CRIMINAL LAW; PROBATION; ACCUSED NOT ORIGINALLY QUALIFIED FOR PROBATION

SHOULD NOT BE DENIED THEREOF WHERE HIS APPEAL REDUCED HIS IMPRISONMENT WITHIN
THE PRESCRIBED LIMIT. An accused, who originally is not qualified for probation because the penalty
imposed on him by a court a quo exceeds six (6) years, should not be denied that benefit of probation if on
appeal the sentence is ultimately reduced to within the prescribed limit.
2. ID.; ID.; NUMBER OF PENALTIES IMPOSED ON ACCUSED CHARGED AND SENTENCED TO

SERVE MULTIPLE PRISON TERMS, TAKEN SEPARATELY IN DETERMINING QUALIFICATION FOR
PROBATION. In determining the eligibility or disqualification of an applicant for probation charged with,
and sentenced to serve multiple prison terms for, several offenses, "the number of offenses is immaterial as long
as all the penalties imposed, taken separately, are within the probationable period." The use of the word
maximum instead of the word total in Section 9, paragraph (a) of P.D. 968, as amended, should be enough to
reveal that such has been the legislative intent.
DECISION 1
BELLOSILLO, J p:
Probation is a special privilege granted by the state to a penitent qualified offender. It essentially rejects appeals
and encourages an otherwise eligible convict to immediately admit his liability and save the state of time, effort
and expenses to jettison an appeal. The law expressly requires that an accused must not have appealed his
conviction before he can avail of probation. This outlaws the element of speculation on the part of the accused
to wager on the result of his appeal that when his conviction is finally affirmed on appeal, the moment of
truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an "escape
hatch" thus rendering nugatory the appellate court's affirmance of his conviction. Consequently, probation
should be availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated, who
manifest spontaneity, contrition and remorse.
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As conceptualized, is petitioner entitled to probation within the purview of P.D. 968, as amended by P.D. 1257
and P.D. 1990?
. . . (he) was angry and shouting when he uttered the defamatory words complained of . . . he must have been
angry and worried 'about some missing documents . . . as well as the letter of the Department of Tourism
advising ASPAC about its delinquent tax of P1.2 million . . .' the said defamatory words must have been uttered
in the heat of anger which is a mitigating circumstance analogous to passion or obfuscation. 3
Petitioner's woes started when as President and General Manager of ASPAC Trans. Company he failed to
control his outburst and blurted
You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro kayo walang utak . . . . Mga anak
ng puta . . . . Magkano ba kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple grave oral defamation in five (5) separate
Informations instituted by five (5) of his employees, each Information charging him with gravely maligning
them on four different days, i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati, Br. 61, found petitioner
guilty of grave oral defamation in four (4) of the five (5) cases filed against him, i.e., Crim. Cases Nos. 105206,
105207, 105209 and 105210, sentenced him to a prison term of one (1) year and one (1) day to one (1) year and
eight (8) months of prision correccional "in each crime committed on each date of each case as alleged in the
information(s)," ordered him to indemnify each of the offended parties, Victoria Gatchalian, Rowena Ruiz,
Linda Marie Ayala Pigar and Marie Solis, P10,000.00 as exemplary damages, and P5,000.00 for attorney's fees,
plus costs of suit. 2 He was however acquitted in Crim. Case No. 105208 for persistent failure of the offended
party, Edgar Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner elevated his case to the
Regional Trial Court. Cdpr
Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment . . ." 4 After he failed to interpose an appeal therefrom the decision of the RTC became final. The
case was then set for execution of judgment by the MeTC which, as a consequence, issued a warrant of arrest.
But before he could be arrested petitioner filed an application for probation which the MeTC denied "in the
light of the ruling of the Supreme Court in Llamado v. Court of Appeals, G.R. No. 84850, 29 June 1989, 174
SCRA 566 . . ." 5
Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992 dismissed his petition on the
following grounds
Initially, the Court notes that the petitioner has failed to comply with the provisions of Supreme Court Circular
No. 28-91 of September 4, 1991. Violation of the circular is sufficient cause for dismissal of the petition. prcd
Secondly, the petitioner does not allege anywhere in the petition that he had asked the respondent court to
reconsider its above order; in fact, he had failed to give the court an opportunity to correct itself if it had, in fact,
committed any error on the matter. He is, however, required to move for reconsideration of the questioned order
before filing a petition for certiorari (Sy It v. Tiangco, 4 SCRA 436). This failure is fatal to his cause. It is a
ground for dismissal of his petition (Santos v. Vda. de Cerdenola, 5 SCRA 823; Acquiao v. Estenso, 14 SCRA
18; Del Pilar Transit, Inc. v. Public Service Commission, 31 SCRA 372).
On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction but appreciated in his
favor a mitigating circumstance analogous to passion or obfuscation. Thus
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Thirdly, it is obvious that respondent court did not commit any capricious, arbitrary, despotic or whimsical
exercise of power in denying the petitioner's application for probation . . .
Fourthly, the petition for probation was filed by the petitioner out of time . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant probation after conviction, upon
an application by the defendant within the period of appeal, upon terms and conditions and period appropriate to
each case, but expressly rules out probation where an appeal has been taken . . . 6
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground and seeks this Court's compassion in dispensing
with the minor technicalities which may militate against his petition as he now argues before us that he has not
yet lost his right to avail of probation notwithstanding his appeal from the MeTC to the RTC since "[t]he reason
for his appeal was precisely to enable him to avail himself of the benefits of the Probation Law because the
original Decision of the (Metropolitan) Trial Court was such that he would not then be entitled to probation." 7
He contends that "he appealed from the judgment of the trial court precisely for the purpose of reducing the
penalties imposed upon him by the said court to enable him to qualify for probation." 8
The central issue therefore is whether petitioner is still qualified to avail of probation even after appealing his
conviction to the RTC which affirmed the MeTC except with regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 9 Its benefits cannot extend to those not expressly included.
Probation is not a right of an accused, but rather an act of grace and clemency or immunity conferred by the
state which may be granted by the court to a seemingly deserving defendant who thereby escapes the extreme
rigors of the penalty imposed by law for the offense of which he stands convicted. 10 It is a special prerogative
granted by law to a person or group of persons not enjoyed by others or by all. Accordingly, the grant of
probation rests solely upon the discretion of the court which is to be exercised primarily for the benefit of
organized society, and only incidentally for the benefit of the accused. 11 The Probation Law should not
therefore be permitted to divest the state or its government of any of the latter's prerogatives, rights or remedies,
unless the intention of the legislature to this end is clearly expressed, and no person should benefit from the
terms of the law who is not clearly within them. LexLib
Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application for probation
shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction," nor
Llamado v. Court of Appeals 12 which interprets the quoted provision, offers any ambiguity or qualification. As
such, the application of the law should not be subjected to any to suit the case of petitioner. While the
proposition that an appeal should not bar the accused from applying for probation if the appeal is solely to
reduce the penalty to within the probationable limit may be equitable, we are not yet prepared to accept this
interpretation under existing law and jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for
the Court en banc in Llamado v. Court of Appeals
. . . we note at the outset that Probation Law is not a penal statute. We, however, understand petitioner's
argument to be really that any statutory language that appears to favor the accused in a criminal case should be
given a 'liberal interpretation.' Courts . . . have no authority to invoke 'liberal interpretation' or 'the spirit of the
law' where the words of the statute themselves, and as illuminated by the history of that statute, leave no room
for doubt or interpretation. We do not believe that 'the spirit of the law' may legitimately be invoked to set at
naught words which have a clear and definite meaning imparted to them by our procedural law. The 'true
legislative intent' must obviously be given effect by judges and all others who are charged with the application
and implementation of a statute. It is absolutely essential to bear in mind, however, that the spirit of the law and
the intent that is to be given effect are derived from the words actually used by the law-maker, and not from
some external, mystical or metajuridical source independent of and transcending the words of the legislature.
The Court is not here to be understood as giving a 'strict interpretation' rather than a 'liberal' one to Section 4 of
the Probation Law of 1976 as amended by P.D. No. 1990. 'Strict' and 'liberal' are adjectives which too frequently
impede a disciplined and principled search for the meaning which the law-making authority projected when it
promulgated the language which we must apply. That meaning is clearly visible in the text of Section 4, as plain
and unmistakable as the nose on a man's face. The Court is simply reading Section 4 as it is in fact written.
There is no need for the involved process of construction that petitioner invites us to engage in, a process made
necessary only because petitioner rejects the conclusion or meaning which shines through the words of the
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statute. The first duty of the judge is to take and apply a statute as he finds it, not as he would like it to be.
Otherwise, as this Court in Yangco v. Court of First Instance warned, confusion and uncertainty will surely
follow, making, we might add, stability and continuity in the law much more difficult to achieve:
'. . . [w]here language is plain, subtle refinements which tinge words as to give them the color of a particular
judicial theory are not only unnecessary but decidedly harmful. That which has caused so much confusion in the
law, which has made is so difficult for the public to understand and know what the law is with respect to a given
matter, is in considerable measure the unwarranted interference by judicial tribunals with the English language
as found in statutes and contracts, cutting the words here and inserting them there, making them fit personal
ideas of what the legislature ought to have done or what parties should have agreed upon, giving them meanings
which they do not ordinarily have cutting, trimming, fitting, changing and coloring until lawyers themselves are
unable to advise their clients as to the meaning of a given statute or contract until it has been submitted to some
court for its interpretation and construction.'
Second. At the outset, the penalties imposed by the MeTC were already probationable. Hence, there was no
need to appeal if only to reduce the penalties to within the probationable period. Multiple prison terms imposed
against an accused found guilty of several offenses in one decision are not, and should not be, added up. And,
the sum of the multiple prison terms imposed against an applicant should not be determinative of his eligibility
for, nay his disqualification from, probation. The multiple prison terms are distinct from each other, and if none
of the terms exceeds the limit set out in the Probation Law, i.e., not more than six (6) years, then he is entitled to
probation, unless he is otherwise specifically disqualified. The number of offenses is immaterial as long as all
the penalties imposed, taken separately, are within the probationable period. For, Sec. 9, par. (a), P.D. 968, as
amended, uses the word maximum, not total, when it says that "[t]he benefits of this Decree shall not be
extended to those . . . sentenced to serve a maximum term of imprisonment of more than six years." Evidently,
the law does not intend to sum up the penalties imposed but to take each penalty, separately and distinctly with
the others. Consequently, even if petitioner was supposed to have served his prison term of one (1) year and one
(1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he was sentenced to
serve the prison term for "each crime committed on each date of each case, as alleged in the information(s),"
and in each of the four (4) informations, he was charged with having defamed the four (4) private complainants
on four (4) different, separate days, he was still eligible for probation, as each prison term imposed on petitioner
was probationable. LLphil
The point in this warning may be expected to become sharper as our people's grasp of English is steadily
attenuated. 13
Therefore, that an appeal should not bar the accused from applying for probation if the appeal is taken solely to
reduce the penalty is simply contrary to the clear and express mandate of Sec. 4 of the Probation Law, as
amended, which opens with a negative clause, "no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of conviction." In Bersabal v. Salvador, 14 we said
By its very language, the Rule is mandatory. Under the rule of statutory construction, negative words and
phrases are to be regarded as mandatory while those in the affirmative are merely directory . . . the use of the
term 'shall' further emphasizes its mandatory character and means that it is imperative, operating to impose a
duty which may be enforced.
And where the law does not distinguish the courts should not distinguish; where the law does not make
exception the court should not except.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the
assumption that those sentenced to higher penalties pose too great a risk to society, not just because of their
demonstrated capability for serious wrongdoing but because of the gravity and serious consequences of the
offense they might further commit. 15 The Probation Law, as amended, disqualifies only those who have been
convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised Penal Code, 16 and not
necessarily those who have been convicted of multiple offenses in a single proceeding who are deemed to be
less perverse. Hence, the basis of the disqualification is principally the gravity of the offense committed and the
concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six (6) years are
not generally considered callous, hard core criminals, and thus may avail of probation.
To demonstrate the point, let us take for instance one who is convicted in a single decision of, say, thirteen (13)
counts of grave oral defamation (for having defamed thirteen [13] individuals in one outburst) and sentenced to
a total prison term of thirteen (13) years, and another who has been found guilty of mutilation and sentenced to
six (6) years and one (1) day of prision mayor minimum as minimum to twelve (12) years and one (1) day of
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reclusion temporal minimum as maximum. Obviously, the latter offender is more perverse and is disqualified
from availing of probation.
Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision he could not have availed
of the benefits of probation. Since he could have, although he did not, his appeal now precludes him from
applying for probation.
And, even if we go along with the premise of petitioner, however erroneous it may be, that the penalties
imposed against him should be summed up, still he would not have qualified under the Decision rendered by the
RTC since if the "STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" imposed by the RTC is
multiplied sixteen (16) times, the total imposable penalty, would be ten (10) years and eight (8) months, which
is still way beyond the limit of not more than six (6) years provided for in the Probation Law, as amended. To
illustrate: 8 months multiplied by 16 cases = 128 months; 128 months divided by 12 months (in a year) = 10
years and 8 months, hence, following his argument, petitioner cannot still be eligible for probation as the total of
his penalties exceeds six (6) years.
The assertion that the Decision of the RTC should be multiplied only four (4) times since there are only four (4)
Informations thereby allowing petitioner to qualify for probation, instead of sixteen (16) times, is quite difficult
to understand. The penalties imposed by the MeTC cannot be any clearer "one (1) year and one (1) day to
one (1) year and eight (8) months of prision correccional, in each crime committed on each date of each case,
as alleged in the information(s)." Hence, petitioner should suffer the imposed penalties sixteen (16) times. On
the other hand, the RTC affirmed the judgment of conviction and merely reduced the duration of each penalty
imposed by the MeTC "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" on
account of a mitigating circumstance for each case, count or incident of grave oral defamation. There is no valid
reason therefore why the penalties imposed by the RTC should be multiplied only four (4) times, and not
sixteen (16) times, considering that the RTC merely affirmed the MeTC as regards the culpability of petitioner
in each of the sixteen (16) cases and reducing only the duration of the penalties imposed therein. Thus
Premises considered, the judgment of conviction rendered by the trial court is AFFIRMED with modification,
as follows:
WHEREFORE, the Court hereby finds the accused Pablo C. Francisco GUILTY beyond reasonable doubt in
each of the above entitled cases and appreciating in his favor the mitigating circumstance which is analogous to
passion or obfuscation, the Court hereby sentences the said accused in each case to a straight penalty of EIGHT
(8) MONTHS imprisonment, with the accessory penalties prescribed by law; and to pay the costs. 17
Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or absolved in any of
the four (4) counts under each of the four (4) Informations, or that any part of the judgment of conviction was
reversed, or that any of the cases, counts or incidents was dismissed. Otherwise, we will have to account for the
twelve (12) other penalties imposed by the MeTC. Can we? What is clear is that the judgment of conviction
rendered by the MeTC was affirmed with the sole modification on the duration of the penalties. cdll
In fine, considering that the multiple prison terms should not be summed up but taken separately as the totality
of all the penalties is not the test, petitioner should have immediately filed an application for probation as he
was already qualified after being convicted by the MeTC, if indeed thereafter he felt humbled was ready to
unconditionally accept the verdict of the court and admit his liability. Consequently, in appealing the Decision
of the MeTC to the RTC, petitioner lost his right to probation. For, plainly, the law considers appeal and
probation mutually exclusive remedies. 18
Third. Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by the MeTC, but to
assert his innocence. Nothing more. The cold fact is that petitioner appealed his conviction to the RTC not for
the sole purpose of reducing his penalties to make him eligible for probation since he was already qualified
under the MeTC Decision but rather to insist on his innocence. The appeal record is wanting of any other
purpose. Thus, in his Memorandum before the RTC, he raised only three (3) statements of error purportedly
committed by the MeTC all aimed at his acquittal: (a) in finding that the guilt of the accused has been
established because of his positive identification by the witness for the prosecution; (b) in giving full faith and
credence to the bare statements of the private complainants despite the absence of corroborating testimonies;
and, (c) in not acquitting him in all the cases, 19 Consequently, petitioner insisted that the trial court committed
an error in relying on his positive identification considering that private complainants could not have missed
identifying him who was their President and General Manager with whom they worked for a good number of
years. Petitioner further argued that although the alleged defamatory words were uttered in the presence of other
persons, mostly private complainants' co-employees and clients, not one of them was presented as a witness.
Hence, according to petitioner, the trial court could not have convicted him on the basis of the uncorroborative
testimony of private complainants. 20
273
Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete innocence, and do
not simply put in issue the propriety of the penalties imposed. For sure, the accused never manifested that he
was appealing only for the purpose of correcting a wrong penalty to reduce it to within the probationable
range. Hence, upon interposing an appeal more so after asserting his innocence therein, petitioner should be
precluded from seeking probation. By perfecting his appeal, petitioner ipso facto relinquished his alternative
remedy of availing of the Probation Law the purpose of which is simply to prevent speculation or opportunism
on the part of an accused who although already eligible does not at once apply for probation, but doing so only
after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his conviction by the RTC to the Court of Appeals does
not necessarily mean that his appeal to the RTC was solely to reduce his penalties. Conversely, he was afraid
that the Court of Appeals would increase his penalties, which could be worse for him. Besides, the RTC
Decision had already become final and executory because of the negligence, according to him, of his former
counsel who failed to seek possible remedies within the period allowed by law.
Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3, par. (e), Rule 117 of the
Rules of Court, 21 should have moved to quash as each of the four (4) Informations filed against him charged
four (4) separate crimes of grave oral defamation, committed on four (4) separate days. His failure to do so
however may now be deemed a waiver under Sec. 8 of the same Rule 22 and he can be validly convicted, as in
the instant case, of as many crimes charged in the Information. cdrep
Fourth. The application for probation was filed way beyond the period allowed by law. This is vital and crucial.
From the records it is clear that the application for probation was filed "only after a warrant for the arrest of
petitioner had been issued . . . (and) almost two months after (his) receipt of the Decision" 23 of the RTC. This
is a significant fact which militates against the instant petition. We quote with affirmance the well-written, albeit
assailed, ponencia of now Presiding Justice of the Court of Appeals Nathanael P. De Pano, Jr., on the specific
issue
. . . the petition for probation was filed by the petitioner out of time. The law in point, Section 4 of P.D. 968, as
amended, provides thus:
'SECTION 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall
have convicted and sentenced a defendant, and upon application by said defendant within the period for
perfecting an appeal . . . place the defendant on probation . . .'
Going to the extreme, and assuming that an application for probation from one who had appealed the trial
court's judgment is allowed by law, the petitioner's plea for probation was filed out of time. In the petition is a
clear statement that the petitioner was up for execution of judgment before he filed his application for probation.
P.D. No. 968 says that the application for probation must be filed "within the period for perfecting an appeal;"
but in this case, such period for appeal had passed, meaning to say that the Regional Trial Court's decision had
attained finality, and no appeal therefrom was possible under the law. Even granting that an appeal from the
appellate court's judgment is contemplated by P.D. 968, in addition to the judgment rendered by the trial court,
that appellate judgment had become final and was, in fact, up for actual execution before the application for
probation was attempted by the petitioner. The petitioner did not file his application for probation before the
finality of the said judgment; therefore, the petitioner's attempt at probation was filed too late.
Our minds cannot simply rest easy on the proposition that an application for probation may yet be granted even
if it was filed only after judgment has become final, the conviction already set for execution and a warrant of
arrest issued for service of sentence.
The argument that petitioner had to await the remand of the case to the MeTC, which necessarily must be after
the decision of the RTC had become final, for him to file the application for probation with the trial court, is to
stretch the law beyond comprehension. The law, simply, does not allow probation after an appeal has been
perfected.
Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually exclusive
remedies, and petitioner appealed from his conviction by the MeTC although the imposed penalties were
already probationable and in his appeal, he asserted only his innocence and did not even raise the issue of the
274
propriety of the penalties imposed on him, and finally, he filed an application for probation outside the period
for perfecting an appeal granting he was otherwise eligible for probation, the instant petition for review should
be as it is hereby DENIED.
SYNOPSIS
SO ORDERED.
Narvasa, C .J ., Feliciano, Padilla, Bidin, Regalado, Davide, Jr. and Quiason, JJ., concur.
Romero, Melo, Puno, Kapunan, and Francisco, JJ., join the dissent of Justice Mendoza.
Mendoza, J., please see dissent.
||| (Francisco v. Court of Appeals, G.R. No. 108747, [April 6, 1995], 313 PHIL 241-278)
SECOND DIVISION
[G.R. No. 123936. March 4, 1999.]
RONALD SORIANO, petitioner, vs. COURT OF APPEALS; HON. RODOLFO V. TOLEDANO, Presiding
Judge of the Regional Trial Court, Branch 69, Third Judicial Region, Iba, Zambales; THE PROVINCIAL
SHERIFF, Third Judicial Region, Iba, Zambales; Ms. NELDA DA MAYCONG, Supervising Parole and
Probation Officer and Officer-in-Charge, Zambales Parole and Probation Office; and THE PEOPLE OF THE
PHILIPPINES, respondents.
Gancayco Law Offices for petitioner.
Petitioner Ronald Soriano was convicted of the crime of Reckless Imprudence resulting to homicide, serious
physical injuries and damage to property. His application for probation was granted with its corresponding
terms and conditions. In less than a year, Assistant Prosecutor Benjamin A. Fadera filed a motion to cancel
petitioner's probation due to his failure to satisfy his civil liability to the heirs of the victim and a supplemental
motion alleging petitioner's commission of another crime for which at that time he was awaiting arraignment.
The Parole and Probation Office, however, recommended the continuance of petitioner's probation and that he
be required to submit a program of payment of his civil liability. The trial court denied the prosecutor's motion
and directed petitioner to submit a program of payment of the civil liability imposed upon him. The latter failed
to comply with the said order. The trial court issued an order declaring petitioner in contempt of court for his
failure to comply with its orders. The court likewise revoked the grant of probation to petitioner and ordered
that he be arrested to serve the sentence originally imposed upon him. Petitioner then filed a special civil action
for certiorari with the Court of Appeals. The Court of Appeals dismissed the petition, holding that petitioner's
"stubborn unwillingness" to comply with the orders of the trial court shows his refusal to reform himself and to
correct a wrong. Petitioner's motion for reconsideration was likewise denied by the Court of Appeals. Hence,
this petition for review. The only issue to be resolved by the Supreme Court in this case is whether or not the
revocation of petitioner's probation is lawful and proper.
There was no justifiable reason given by the petitioner for ignoring the two orders of the court. The trial court
could not be faulted for citing him in contempt for his failure to comply with its orders. Petitioner's continued
refusal to submit a program of payment, along with his prayer for the deletion of the requirement of payment of
civil liability from his probation order, creates the impression that he wanted to completely avoid paying his
civil liability, with or without a program of payment. Having admittedly violated the terms and conditions of his
probation, petitioner cannot now assail the revocation of his probation. The petition was denied by the Supreme
Court. TCDHaE
SYLLABUS
275
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; EQUAL PROTECTION CLAUSE; NOT VIOLATED

WHEN THE PAYMENT OF CIVIL LIABILITY IS NOT MADE A CONDITION PRECEDENT TO
PROBATION; INSTANT CASE. Contrary to his assertion, payment of civil liability is not violative of equal
protection clause of the Constitution. Note that the payment of civil liability is not made a condition precedent
to probation. If it were, then perhaps there might be some basis to petitioner's assertion that only moneyed
convicts may avail of the benefits of probation. In this case, however, petitioner's application for probation had
already been granted. Satisfaction of his civil liability was not made a requirement before he could avail of
probation, but was a condition for his continued enjoyment of the same. The trial court could not have done
away with imposing payment of civil liability as a condition for probation, as petitioner suggests. This is not an
arbitrary imposition but one required by law. It is a consequence of petitioner's having been convicted of a
crime, and petitioner is bound to satisfy this obligation regardless of whether or not he is placed under
probation.
of a penitent offender which might be less probable if he were to serve a prison sentence. Failure to comply will
result in the revocation of the order granting probation pursuant to the Probation Law.
2. REMEDIAL LAW; ACTIONS; NOTICE TO COUNSEL IS NOTICE TO CLIENT; EXCEPTION NOT

APPLICABLE IN PRESENT CASE. Petitioner wants to take exception to the rule that notice to counsel is
notice to client. The Court finds no reason to make an exception in this case. Petitioner's counsel has not been
shown to be grossly irresponsible as to cause prejudice to petitioner's rights.
QUISUMBING, J p:
3. ID.; EVIDENCE; FINDINGS OF FACT BY THE TRIAL COURT; ENTITLED TO GREAT WEIGHT
MORE SO WHEN THEY ARE AFFIRMED BY THE COURT OF APPEALS; PRESENT CASE. The
question of whether or not petitioner has, indeed, violated the terms and conditions of his probation is evidently
a factual one which had already been passed upon by both the trial court and the Court of Appeals. Settled is the
rule in this jurisdiction that findings of fact of the trial court are entitled to great weight, more so when they are
affirmed by the Court of Appeals, as in this case.
4. CRIMINAL LAW; PROBATION LAW; CONDITIONS THEREOF; RATIONALE. Section 10 of the

Probation Law states: "SEC. 10. Conditions of Probation. . . . The court may also require the probationer to:
(a) Cooperate with a program of supervision; (b) Meet his family responsibilities; (c) Devote himself to a
specific employment and not to change said employment without the prior written approval of the probation
officer. . . . (e) Pursue a prescribed secular study or vocation; training; . . ." Clearly, these conditions are not
whims of the trial court but are requirements laid down by statute. They are among the conditions that the trial
court is empowered to impose and the petitioner, as probationer, is required to follow. Only by satisfying these
conditions may the purposes of probation be fulfilled. These include promoting the correction and rehabilitation
of an offender by providing him with individualized treatment, and providing an opportunity for the reformation
5. ID.; ID.; PROBATION CONSTRUED. Probation is not an absolute right. It is a mere privilege whose
grant rests upon the discretion of the trial court. Its grant is subject to certain terms and conditions that may be
imposed by the trial court. Having the power to grant probation, it follows that the trial court also has the power
to order its revocation in a proper case and under appropriate circumstances. ACEIac
DECISION
This is a petition for review on certiorari of the decision of the Court of Appeals in C.A. G.R. SP No. 35550, 1
which upheld the trial court's orders holding petitioner in contempt and revoking his probation. cdasia
The facts of the case are as follows:
Petitioner Ronald Soriano was convicted of the crime of Reckless Imprudence resulting to homicide, serious
physical injuries and damage to property on December 7, 1993. 2 His application for probation was granted on
March 8, 1994, and among the terms and conditions imposed by the trial court were the following: 3
"xxx xxx xxx
7. He shall meet his family responsibilities.
276
8. He shall devote himself to a specific employment and shall not change employment without prior notice to
the supervising officer; and/or shall pursue a prescribed secular study or vocational training.
xxx xxx xxx
On October 4, 1994, the trial court issued an order declaring petitioner in contempt of court for his failure to
comply with its orders of June 20, 1994 and August 15, 1994. The court likewise revoked the grant of probation
to petitioner and ordered that he be arrested to serve the sentence originally imposed upon him. According to the
trial court, among the violations committed by petitioner as regards his probation are his failure to (1) meet his
responsibilities to his family, (2) engage in a specific employment, and (3) cooperate with his program of
supervision.
11. He is to indemnify the heirs of the victim Isidrino Daluyong in the amount of P98,560.00 as ordered by the
Court.
xxx xxx xxx"
On April 26, 1994, Assistant Prosecutor Benjamin A. Fadera filed a motion to cancel petitioner's probation due
to his failure to satisfy his civil liability to the heirs of the victim, and a supplemental motion alleging
petitioner's commission of another crime for which at that time he was awaiting arraignment. The Zambales
Parole and Probation Office filed a comment recommending that petitioner be allowed to continue with his
probation and that he be required instead to submit a program of payment of his civil liability.
Petitioner then filed a special civil action for certiorari with the Court of Appeals. He claimed that respondent
judge committed grave abuse of discretion amounting to lack of, or in excess of, jurisdiction in holding
petitioner in contempt and revoking his probation. The Court of Appeals dismissed the petition, holding that
petitioner's "stubborn unwillingness" to comply with the orders of the trial court "shows his refusal to reform
himself and to correct a wrong." 4
According to the Court of Appeals:

On June 20, 1994, the trial court denied the prosecutor's motion and directed petitioner to submit a program of
payment of the civil liability imposed upon him.
Thereafter, probation officer Nelda Da Maycong received information that petitioner's father, who owned the
vehicle involved in the accident which killed Daluyong, received P16,500.00 as insurance payment. This
amount was not turned over to the heirs of Daluyong and Da Maycong considered this a violation of the terms
and conditions of the probation. She submitted a manifestation to the trial court praying that petitioner be made
to explain his non-compliance with the court's order of June 20, 1994, or that he be cited for contempt for such
non-compliance. Da Maycong also asked that petitioner be made to submit a program of payment as soon as
possible. The trial court granted her prayers in an order dated August 15, 1994. Petitioner was once again
ordered to submit his program of payment. Petitioner instead filed a motion for reconsideration explaining that
he did not receive any notice of the order dated June 20, 1994. His counsel received a copy of said order on
June 23, 1994 but failed to notify petitioner. Thus, the latter failed to comply with said order.
"Where probation was approved and probationer has proven to be unrepentant and disrespectful and even
showed clear defiance to two lawful court orders, as in the case of herein petitioner, the court is not barred from
revoking the same." 5
Petitioner's motion for reconsideration was likewise denied by the Court of Appeals for lack of merit.
Hence, this petition for review, in which petitioner makes the following assignment of errors: 6
277
1. Respondent Court of Appeals erred in failing to rule that respondent judge committed grave abuse of
discretion in finding that there was deliberate refusal on the part of petitioner to comply with his orders dated
June 20, 1994 and August 15, 1994 and subsequently declaring petitioner in contempt.
discretion in revoking the probation order he earlier issued in favor of petitioner on the ground that petitioner
failed to satisfy the award of civil indemnity for the heirs of the accident victim.
already final and executory. He further invokes the majority decision in Salgado and asserts that "any program
of payment of civil liability must take into consideration the needs and capacity of petitioner." 9
Petitioner claims that his failure to meet his responsibilities to his family and to engage in gainful employment
is not deliberate but is due to his poverty. He adds that his being unskilled, with a criminal record to his name,
does not exactly enhance his chances for employment.
Finally, petitioner cites our decision in Baclayon v. Mutia: 10

discretion in revoking the probation order he earlier issued in favor of petitioner on the ground that the latter
violated the conditions of his probation three times.
Petitioner asserts that he had no intention to ignore the orders of the trial court. The court's order of June 20,
1994 was received by his counsel who, however, did not notify petitioner. Petitioner says that his "former
counsel's irresponsible delay (in informing him of the order) should not prejudice him." 7
He explains that his non-compliance with the order to submit a program of payment of his civil liability is,
ultimately, due to his poor financial condition. He only relies on his parents for support. He claims that it is
impossible for him to formulate a payment program because, in the first place, he is in no position to comply
with the same. LLjur
Petitioner avers that to require him to satisfy his civil liability in order to continue to avail of the benefits of
probation is to violate the constitutional proscription against unequal protection of the law. He says only
moneyed probationers will be able to benefit from probation if satisfaction of civil liability is made condition.
Petitioner contends that his enjoyment of probation should not be made to depend on the satisfaction of his civil
liability. He invokes the separate opinion of Justice Isagani A. Cruz in Salgado v. Court of Appeals, 8
particularly Justice Cruz' reservation about the validity of imposing satisfaction of civil liability as a condition
for probation. Based on this opinion, petitioner claims that such an imposition is in the nature of an amendment
of the decision of the trial court in the criminal case against him, which cannot be allowed since the decision is
". . . Conditions should be interpreted with flexibility in their application and each case should be judged on its
own merits on the basis of the problems, needs and capacity of the probationer. The very liberality of the
probation should not be made a tool by trial courts to stipulate instead unrealistic terms." 11
In his comment, the Solicitor General asks for the dismissal of the petition. The only issue to be resolved
according to him is whether or not petitioner has violated the terms and conditions of his probation as to warrant
its revocation. The Solicitor General argues that petitioner has committed violations, thus justifying the trial
court's revocation of the grant of probation. He further points out that our ruling in Salgado is inapplicable to
the case of petitioner since what was involved in Salgado was a program of payment already imposed upon
petitioner therein. In this case, however, it is petitioner who is being asked to submit his own program of
payment and he had not submitted any such program.
The only issue for us to resolve in this case is whether or not the revocation of petitioner's probation is lawful
and proper.
Petitioner asserts that his non-compliance with the orders of the trial court requiring him to submit a program of
payment was not deliberate. To our mind, his refusal to comply with said orders cannot be anything but
deliberate. He had notice of both orders, although the notice of the order of June 20, 1994 came belatedly. He
has, up to this point, refused to comply with the trial court's directive, by questioning instead the
constitutionality of the requirement imposed and harping on his alleged poverty as the reason for his failure to
comply.
278
Contrary to his assertion, this requirement is not violative of the equal protection clause of the Constitution.
Note that payment of the civil liability is not made a condition precedent to probation. If it were, then perhaps
there might be some basis to petitioner's assertion that only moneyed convicts may avail of the benefits of
probation. In this case, however, petitioner's application for probation had already been granted. Satisfaction of
his civil liability was not made a requirement before he could avail of probation, but was a condition for his
continued enjoyment of the same.
The trial court could not have done away with imposing payment of civil liability as a condition for probation,
as petitioner suggests. This is not an arbitrary imposition but one required by law. It is a consequence of
petitioner's having been convicted of a crime, 12 and petitioner is bound to satisfy this obligation regardless of
whether or not he is placed under probation.
We fail to see why petitioner cannot comply with a simple order to furnish the trial court with a program of
payment of his civil liability. He may, indeed, be poor, but this is precisely the reason why the trial court gave
him the chance to make his own program of payment. Knowing his own financial condition, he is in the best
position to formulate a program of payment that fits his needs and capacity.
Petitioner blames his former counsel's "irresponsible delay" in informing him of the trial court's order to come
up with a program of payment for his failure to make such a program. Petitioner wants to take exception to the
rule that notice to counsel is notice to client.
We find no reason to make an exception in this case. Petitioner's counsel has not been shown to be grossly
irresponsible as to cause prejudice to petitioner's rights. 13 Moreover, we note that petitioner later on discovered
that such a court order was received by his counsel. He could have endeavored to comply with the order then. In
the June 20, 1994 order, he was given 10 days from receipt of the order within which to comply. The same
period was given him in the order of August 15, 1994. Petitioner does not claim that he failed to receive notice
of the latter order. In fact, he submitted a motion for reconsideration of said order, but still without the required
program of payment.
No justifiable reason has been given by petitioner for ignoring those two orders. The trial court could not be
faulted for citing him in contempt for his failure to comply with its orders. Nor did it abuse gravely its
discretion in issuing said orders. Hence, we are in full agreement with respondent appellate court's decision as
well. cdlex
Moreover, petitioner's continued refusal to submit a program of payment, along with his prayer for the deletion
of the requirement of payment of civil liability from his probation order, creates the impression that he wants to
completely avoid paying his civil liability. This he cannot do. He cannot escape payment of his civil liability,
with or without a program of payment.
Petitioner's reliance on Salgado is misplaced. In that case, the trial court itself formulated the manner by which
Salgado was to satisfy his civil liability. He was able to comply for a few months. When he started skipping his
payments, his victim sought the issuance of a writ of execution to enforce full payment of the civil liability. The
trial court granted this motion and it was sustained by the Court of Appeals which ruled that the program of
payment amounted to an amendment of the decision of the trial court ordering payment of civil liability but
without a program of payment. Since the trial court's decision had already become final, it can no longer be
amended by imposing a program of payment, in installments, of the civil liability.
We held in Salgado that the program of payment is not an amendment of the decision of the trial court because
it does not increase or decrease the liability and the obligation to pay is to be fulfilled during the period of
probation.
Unlike in Salgado, herein petitioner was being asked to make a program of payment. But he failed to do so.
Hence, in this case, there is yet no program of payment to speak of, because of petitioner's stubborn refusal and
delay as well as failure to abide by the trial court's orders.
279
Petitioner's reliance on Baclayon is likewise misplaced. In that case, what was being assailed as an unrealistic
condition was the trial court's requirement that petitioner therein, a teacher convicted of Serious Oral
Defamation, refrain from exercising her profession. This condition was deemed unreasonable because teaching
was the only profession she knew and it appeared that she excelled in teaching. No unrealistic condition similar
to the one in Baclayon has been imposed upon petitioner herein.
As regards the other violations committed by petitioner, the question of whether or not petitioner has, indeed,
violated the terms and conditions of his probation is evidently a factual one which had already been passed upon
by both the trial court and the Court of Appeals. Settled is the rule in this jurisdiction that findings of fact of the
trial court are entitled to great weight, more so when they are affirmed by the Court of Appeals, 14 as in this
case.
Besides, petitioner himself admits in his petition that he is unemployed and only depends on his parents for
support. He can barely support his family. 15 Petitioner ought to be reminded of what is incumbent on a
probationer, including those requirements that the trial court may set.
(c) Devote himself to a specific employment and not to change said employment without the prior written
approval of the probation officer;
xxx xxx xxx
(e) Pursue a prescribed secular study or vocational training;
xxx xxx xxx" 16

Clearly, these conditions are not whims of the trial court but are requirements laid down by statute. They are
among the conditions that the trial court is empowered to impose and the petitioner, as probationer, is required
to follow. Only by satisfying these conditions may the purposes of probation be fulfilled. These include
promoting the correction and rehabilitation of an offender by providing him with individualized treatment, and
providing an opportunity for the reformation of a penitent offender which might be less probable if he were to
serve a prison sentence. 16a Failure to comply will result in the revocation of the order granting probation,
pursuant to the Probation Law:
As Section 10 of the Probation Law states:
"SEC. 10. Conditions of Probation. . . .
"SEC. 11. Effectivity of Probation Order. A probation order shall take effect upon its issuance, at which time
the court shall inform the offender of the consequences thereof and explain that upon his failure to comply with
any of the conditions prescribed in the said order or his commission of another offense, he shall serve the
penalty imposed for the offense under which he was placed on probation." 16b (Emphasis supplied.)
The court may also require the probationer to:
(a) Cooperate with a program of supervision;
Probation is not an absolute right. It is a mere privilege whose grant rests upon the discretion of the trial court.
17 Its grant is subject to certain terms and conditions that may be imposed by the trial court. Having the power
to grant probation, it follows that the trial court also has the power to order its revocation in a proper case and
under appropriate circumstances.
(b) Meet his family responsibilities;

Moreover, having admittedly violated the terms and conditions of his probation, petitioner cannot now assail the
revocation of his probation. Regrettably, he has squandered the opportunity granted him by the trial court to
remain outside prison bars, and must now suffer the consequences of those aforecited violations. LLjur
280
WHEREFORE, the petition is hereby DENIED and the assailed decision of the Court of Appeals in C.A. G.R.
SP No. 35550 is AFFIRMED.
SO ORDERED.
Bellosillo, Puno, Mendoza and Buena, JJ., concur.
1. CRIMINAL LAW; PROBATION UNDER P.D. NO. 968; GRANT OR DENIAL THEREOF; EQUAL
REGARD TO THE DEMANDS OF JUSTICE AND PUBLIC INTEREST MUST BE OBSERVED. The
potentiality of the offender to reform is not the sole, much less the primordial factor, that should be considered
in the grant or denial of an application for probation. Equal regard to the demands of justice and public interest
must be observed. The conclusion of respondent judge that "probation will depreciate the seriousness of the
offense committed" is based principally on the admission by the petitioner himself, as reflected in the report of
the probation officer, that he was actually caught in the act of selling marijuana cigarettes. Such admission
renders a hearing on the application for probation an unnecessary surplusage and an idle ceremony.
||| (Soriano v. Court of Appeals, G.R. No. 123936, [March 4, 1999], 363 PHIL 573-584)
2. ID.; ID.; GRANT RESTS UPON THE DISCRETION OF THE COURT WHICH MUST BE EXERCISED
FOR THE BENEFIT OF ORGANIZED SOCIETY. Probation is a mere privilege and its grant tests solely
upon the discretion of the court. This discretion is to be exercised primarily for the benefit of organized and
society and only incidentally for the benefit of the accused.(US vs. Durken, 111.63 Supp. 570)
SECOND DIVISION
[G.R. No. L-63400. March 18, 1983.]
EDUARDO TOLENTINO y SAMONTE, petitioner, vs. HON. AMANTE Q. ALCONCEL, Judge, Circuit
Criminal Court, Sixth Judicial District, Manila, respondent.
Fajardo, Lagunzad & Santiago for petitioner.
The Solicitor General for respondent.
3. ID.; ID.; INCREASE IN PENALTY; NECESSITATED BY THE PROLIFERATION OF DANGEROUS

DRUGS. Proliferation of prohibited drugs in the country has remained a serious threat to the well being of
the people. It has necessitated an all-out intensified campaign on the part of the law enforcers against users as
well as pushers thereof. If only to emphasize the gravity of the drug menace, the Batasan Pambansa has seen fit
to increase the penalty for violation of Section 8, Article II of Republic Act 6425. The penalties were increased
to take it out of the range of probationable offenses.
DECISION
ESCOLIN, J p:
Challenged in this petition for certiorari is the order of respondent Judge Amante Q. Alconcel of the Circuit
Criminal Court of Manila, in CCC VI-84[81], denying petitioner's application for probation under P.D. 968.
SYLLABUS
281
Petitioner was charged before the Circuit Criminal Court of Manila with violation of Section 4, Article II of
Rep. Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972. Upon arraignment on September 4,
1981, petitioner entered a plea of not guilty. LexLib
On October 8, 1981, after the prosecution had presented part of its evidence, petitioner manifested his desire to
change his plea of not guilty to that of guilty to the lesser offense of possession of Indian Hemp [marijuana],
under Section 8 of Article II of Rep. Act No. 6425.
As no objection was interposed by the fiscal, the court allowed petitioner to withdraw his former plea of guilty
and to enter a plea of guilty to said lessor offense. Petitioner was thereupon sentenced to imprisonment of six
[6] months and one [1] day to two [2] years and four [4] months, to pay a fine of P1,000.00, and to pay the
costs, with subsidiary imprisonment in case of insolvency. cdll
On October 13, 1981, petitioner applied for probation. Respondent judge forthwith directed the probation
officer of the City of Manila to conduct a post sentence investigation on said application and to file said report
thereon within 60 days. After conducting such investigation, the probation officer submitted its report,
recommending that petitioner be placed on a two-year probation upon the claim that the latter was already on
his way to reformation and that a prison cell would turn him into a hardened criminal.
Such recommendation notwithstanding, the respondent judge issued the challenged order of March 9, 1982,
denying petitioner's application on the ground that it will depreciate the seriousness of the offense committed. 1
On March 23, 1982, petitioner moved for reconsideration of the March 9 order, 2 but the same was denied. The
petitioner's "Ex-Parte Motion for Hearing on the case for Probation and for Deferment of Execution of
Judgment " 3 was likewise denied.
Hence, the instant recourse. Petitioner's theme is that respondent judge acted with grave abuse of discretion in
holding that "probation will depreciate the seriousness of the offense committed."
We find these contentions devoid of merit, Section 5 of P.D. 968 provides, to wit:
"SEC. 5. Post Sentence Investigation. No person shall be placed on probation except upon prior investigation
by the probation officer and a determination by the court that the ends of justice and the best interest of the
public as well as that of the defendant will be served thereby."
It is evident from the foregoing that the potentiality of the offender to reform is not the sole, much less the
primordial factor, that should be considered in the grant or denial of an application for probation. Equal regard
to the demands of justice and public interest must be observed. Thus, Section 8 of P.D. 968 lays down the
criteria for the placing of an offender on probation, as follows: LLpr
"Sec. 8. Criteria for Placing an Offender on Probation. In determining whether an offender may be placed on
probation, the court shall consider all information, relative to the character, antecedents, environment, mental
and physical condition of the offender and available institutional and community resources. Probation shall be
denied if the court finds that:
a) . . .
b) . . .
c) probation will depreciate the seriousness of the offense committed."
"The conclusion of respondent judge that "probation will depreciate the seriousness of the offense committed"
is based principally on the admission by the petitioner himself, as reflected in the report of the probation officer,
that he [petitioner] was actually caught in the act of selling marijuana cigarettes. Petitioner did not deny or
dispute the veracity of the fact that he was caught in flagrante delicto of selling marijuana cigarettes. He merely
attempted to justify his criminal act by explaining in his motion for reconsideration that "he did it only to make
282
some money for the family during Christmas. 4 Such admission renders a hearing on the application for
probation an unnecessary surplusage and an idle ceremony.
Aquino, J., is on leave.

Abad Santos, J., I reserve my vote.
||| (Tolentino y Samonte v. Alconcel, G.R. No. L-63400, [March 18, 1983], 206 PHIL 79-83)
Probation is a mere privilege and its grant rests solely upon the discretion of the court. 5 As aptly noted in U.S.
vs. Durken, 6 this discretion is to be exercised primarily for the benefit of organized society and only
incidentally for the benefit of the accused.
EN BANC
Proliferation of prohibited drugs in the country has remained a serious threat to the well-being of the people. It
has necessitated an all-out intensified campaign on the part of the law-enforcers against users as well as pushers
thereof. If only to emphasize the gravity of the drug menace, the Batasan Pambansa has seen fit to increase the
penalty for violation of Section 8, Article II of Rep. Act 6425. Thus, while under Rep. Act 6425, as amended by
P.D. 44, possession or use of marijuana was punishable by imprisonment of 6 mouths and 1 day to 2 years and 4
months and a fine ranging from P600.00 to P6,000.00 - the penalty imposed upon petitioner herein -possession
and use thereof is now punishable by imprisonment ranging from 6 years and 1 day to 12 years and fine ranging
from P6,000.00 to P12,000.00 under B.P. Blg.
179. 7
The observation of the Solicitor General on this increase of penalty is apropos: Cdpr
"The implication is clear. The penalties were increased to take it out of the range of probationable offenses.
Thus, the State has spoken and considers that this is one case where probation will depreciate the offense
committed, and will not serve the ends of justice and the best interest of the community, particularly, the
innocent and gullible young." 8
IN VIEW OF THE FOREGOING, the petition is hereby dismissed. Respondent judge is hereby directed to
effect execution of judgment in CCC No. VI-84 [81] without further delay.
SO ORDERED.
Makasiar (Chairman), Concepcion, Jr., Guerrero and De Castro, JJ., concur.
[G.R. No. L-55333. January 22, 1981.]
ALICIA V. CABATINGAN, petitioner, vs. THE HONORABLE SANDIGANBAYAN, respondent.
Mamerto R. Villaluz and Tomas L. Echivarre for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Reynato S. Puno and Solicitor Zoilo A. Andin
for respondent.
SYNOPSIS
In a malversation case, the Probation Officer in his report recommended disapproval of petitioner's application
for probation on the grounds that (a) during the period of probation there was "under risk" that she would again
commit another crime since she and her husband were operating an illegal jai-alai betting station and she was
facing another charge for malversation of P12,350.40 before the Tanodbayan; and, (b) probation would
depreciate the seriousness of the offense as she had been telling her co-employees that she was already on
probation when in fact her application had not yet been acted upon by the court. Petitioner submitted rebuttal
documentary evidence to show that she was not operating an illegal jai-alai betting station and that the alleged
malversation charge for which she was being investigated by the Tanodbayan was actually only for P6,000
283
which she had already paid and restituted the same being part of the original amount for which she had already
been charged for malversation and to which she had already pleaded guilty. Consequently, the court ordered the
probation officer to submit a supplemental report, a copy of which, however, was never furnished petitioner nor
was the latter given enough chance to inspect the same, much less cross-examine the witnesses against her.
2. CRIMINAL LAW; PROBATION ACT; "UNDUE RISK" AS GROUND FOR DENIAL THEREOF,
INTERPRETATION. The term "undue risk" is to be interpreted in the light of the requirements prescribed in
Section 8, Presidential Decree No. 968, first paragraph, for courts to observe in determining whether an
offender should or should not be placed on probation.
On certiorari, the Supreme Court adopting the findings of the Solicitor General, held that it was grave abuse of
discretion for the Sandiganbayan to deny the application for probation by solely relying on the report of the
probation officer without making its own determination as to whether or not probation would serve the ends of
justice and best interest of the public; that petitioner does not appear to have been afforded fully her right to due
process as she was not given a chance to be heard before the denial of her application for probation and of her
motion for reconsideration of said denial; and that petitioner did not appear to be hardened criminal who was
beyond correction and redemption.
3. ID.; ID.; ENTITLEMENT TO BENEFIT THEREOF; CIRCUMSTANCES IN CASE AT BAR SHOWING

APPLICANT FOR PROBATION NOT BEYOND CORRECTION OR REDEMPTION. There is ample
evidence showing that the petitioner is entitled to the benefits of probation. She does not appear to be a
hardened criminal who is beyond correction or redemption. She has shown repentance for the one offense she
had committed in more ways than one. First, she admittedly restituted upon demand the amount she malversed.
Second, she had expressed a desire to reform herself if given the opportunity to do so. And, third, she promised
to comply with any condition that may be imposed on her if granted probation.
Petition granted. Chaste remanded to the Sandiganbayan for further hearings on the application for probation.
4. CONSTITUTIONAL LAW; DUE PROCESS; LACK OF HEARING IN CASE AT BAR, A DENIAL

THEREOF. Petitioner does not appear to have been afforded fully her right to due process as she was not
given a chance by the respondent court to be heard before it issued its Resolution of July 31, 1980 denying the
application for probation and before it denied the Second Supplemental Motion for Reconsideration. While it is
true that a hearing in chambers was conducted of the petitioner's Motion for Reconsideration on September 5,
1980, that hearing did not involve reception of the evidence upon which decision was eventually predicated. In
fact, since there was strong rebuttal documentary evidence presented by the petitioner in that hearing, the
respondent court had to order the probation officer to submit a supplemental report, a copy of which was never
furnished petitioner nor was the latter given any chance to inspect the same, much less cross-examine the
witnesses against her.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; GRAVE ABUSE OF DISCRETION;

SOLELY ON REPORT OF PROBATION OFFICER WHICH WAS CONTROVERTED BY AMPLE
DOCUMENTARY EVIDENCE. On the basis of the evidence on record as well as the issues raised in the
petition, it is not clear that the Sandiganbayan acted correctly in denying the application for probation of
petition. respondent court appears to have wholly relied on the probation report and did not make its own
determination as to whether or not probation would serve the ends of justice and the best interest of the public
and the applicant. It was not enough for the respondent court to deny petitioner's application solely on the report
that she was involved in "masiao" and that she was facing another preliminary investigation for the "additional
shortage" of the funds of which, however, she had already pleaded guilty. Likewise, the fact that there is a
pending preliminary investigation against her of additional shortages does not also constitute a sufficient basis
for a conclusion that she was already guilty thereof. The report in itself is mostly hearsay and is controverted by
the prominent citizens of Mandaue City.
5. REMEDIAL LAW; EVIDENCE; FINDING THAT PROBATION WILL DEPRECIATE SERIOUSNESS OF

THE OFFENSE COMMITTED CANNOT BE PREDICATED ON BARE ASSERTIONS. The finding by
the respondent court that "probation will depreciate the seriousness of the offense committed" cannot be
predicated simply on an assertion that concerned citizens of Mandaue City are not in favor of Mrs. Cabatingan's
being granted probation especially when disputed by the testimonials of responsible citizens of that city.
Besides, in evaluating a finding on this point, the purpose of the Probation Law should not be overlooked.
DECISION
284
ABAD SANTOS, J p:
This is a petition to set aside the resolutions of the Sandiganbayan dated July 24 and October 10, 1980, which
denied petitioner's application for probation. Petitioner claims that the respondent committed a grave abuse of
discretion when it denied her an adequate opportunity to controvert the inaccurate post-sentence investigation in
connection with her application for probation. Additionally, petitioner prays that she be granted provisional
liberty under her original bail bond pending the determination of her case.
Asked to comment, the Solicitor General agrees that the Sandiganbayan did indeed commit a grave abuse of
discretion when it denied petitioner's application for probation without giving her an adequate hearing. The
Solicitor General has mentioned a number of specific instances to show how the Sandiganbayan committed
grave abuse of discretion which we hereby adopt by reference, namely: cdphil
"5. In denying the application for probation (subject-matter of the petition), the Sandiganbayan relied mainly, if
not totally, on the Post-Sentence Investigation Report as well as the Supplemental Report submitted by the
Probation Officer, both of which recommended disapproval of the application for probation on the ground that
(a) during the period of her probation there is 'undue risk' that she will again commit another crime and that (b)
probation will depreciate the seriousness of the offense committed.
6. In support of the first ground, i.e., that there is 'undue risk' that she may again commit another crime during
her probation, if the same is granted, the Sandiganbayan cited the Probation Officer's Report that Mrs.
Cabatingan and her husband jointly operate an illegal jai-alai betting station known as 'masiao' and that she is
facing another charge for malversation of P12,350.40 before the Tanodbayan; and in support of the second
ground, i.e., that probation will depreciate the seriousness of the offense committed, the Sandiganbayan also
based its conclusion on the report of the Probation Officer that Mrs. Cabatingan had been telling her coemployees at the Mandaue City government that she was already on probation when in fact her application had
not yet been acted upon by the court;
7. The documentary evidence submitted by the petitioner disputes the charge of operating an illegal jai-alai,
among which are the following:
(a) The certification and statement of Jesus P. Go, President of the Association of Barangay Councils of
Mandaue City dated September 1, 1980, attesting that his office is located right across the street where the
house of Mrs. Cabatingan's mother (where the alleged illegal 'jai-alai' betting station took place) and denying of
any knowledge of said illegal gambling (Annex 'A' of Supplemental Motion for Reconsideration, Annex 'F',
Petition);
(b) The affidavit of petitioner herself (Annex 'K' of Annex 'K', Second Supplemental Motion for
Reconsideration, Petition), thereby raising grave doubts on the objectivity, comprehensiveness and even validity
of the probation officer's report as a basis for the Sandiganbayan to make a conclusion;
8. With respect to the contention that she is facing another charge of malversation in the amount of P12,350.40,
as reported by the probation officer, the petitioner has explained the same by saying that said report of the
probation officer was inaccurate, if not misleading, considering that:
(a) While the probation officer in her report made it appear that the amount malversed was P18,642.30 and not
P6,000.00 (which was the amount she had pleaded guilty to), the fact of the matter, as borne out by the official
transcript of stenographic notes on April 17, 1980, at the time of her re-arraignment, was that the amount of
P6,000 was the result of the Tanodbayan's reassessment of the evidence against her, as a consequence of which
the Information carrying the original amount of P18,642.40 was amended on April 17, 1980 and the amount of
P6,000.00 was written over it by the Tanodbayan prosecutor (See Annexes 'C' and 'C-1', Petition); thus, it is
clear that the amount of P6,000 was not a product of Mrs. Cabatingan's 'manipulation' but the result of the
Tanodbayan's reassessment of the evidence against her;
285
(b) The petitioner also clarified that the pending charge of malversion in the amount of P12,350.40 was already
included and taken into account by the Tanodbayan when the latter's prosecutor manifested that after a
reassessment of the evidence against Mrs. Cabatingan, he found that only the amount of P6,000.00 was
malversed; hence, Mrs. Cabatingan, in effect, could not again be charged with the same offense of malversation
to which she had already pleaded guilty;
(c) To further prove that the additional amount of P12,350.44 (actually the amount is P12,580.44, per affidavit
of the Mandaue City Auditor, Annex 'H' of the petition) was part of the original amount of P22,791.05 paid and
restituted by Mrs. Cabatingan, she has attached the aforesaid affidavit of the City Auditor, as the same was the
basis of the Indorsement by the Honorable Vicente G. Ericta of the Tanodbayan dated March 31, 1980, to the
Mandaue City Fiscal for preliminary investigation (Annex 'M', Petition);
(d) It is significant that the aforesaid Indorsement is dated March 31, 1980 and that the affidavit of City Auditor
of Mandaue appended thereto is dated February 11, 1980 and refers to the same period; moreover, the said
information was amended by the Tanodbayan on April 17, 1980 and the plea of guilty to the amended
information was made on the same day so that, for all intents and purposes, the so-called additional shortage of
P12,580.44 was already included in the reassessment of the Tanodbayan of the evidence.
On the basis of the evidence on record as well as the issues raised in the petition, it is not clear that the
Sandiganbayan acted correctly in denying the application of Mrs. Cabatingan for probation. There is ample
evidence showing that the petitioner is entitled to the benefits of probation. She does not appear to be a
hardened criminal who is beyond correction or redemption. She has shown repentance for the one offense she
had committed in more ways than one. First, she immediately restituted upon demand the amount she
malversed. Second, she had expressed a desire to reform herself if given the opportunity to do so. And, third,
she promised to comply with any condition that may be imposed on her if granted probation.
Upon the other hand, respondent court merely relied on a report of the probation officer which in itself, is
mostly hearsay and is controverted by prominent citizens of Mandaue City including the parish priest, the
president of the Association of Barangay Councils, the President of the Catholic Women's League, the former
city auditor and the former city treasurer of Mandaue, among others.
Indeed, petitioner does not appear to have been afforded fully her right to due process as she was not given a
chance by the respondent court to be heard before it issued its Resolution of July 31, 1980 denying the
application for probation and before it denied the Second Supplemental Motion for Reconsideration. While it is
true that a hearing in chambers was conducted of the petitioner's Motion for Reconsideration on September 5,
1980, that hearing did not involve reception of the evidence upon which decision was eventually predicated. In
fact, since there was strong rebuttal documentary evidence presented by the petitioner in that hearing, the
respondent court had to order the probation officer to submit a supplemental report, a copy of which was never
furnished petitioner nor was the latter given any chance at all to inspect the same, much less cross-examine the
witnesses against her.
Similarly, the record is not persuasive that there is 'undue risk' that the applicant will commit another crime
during probation.
The term 'undue risk' is to be interpreted in the light of the requirements prescribed by the law for courts to
observe in determining whether an offender should or should not be placed on probation. These requirements
are: prLL
'In determining whether an offender may be placed on probation, the court shall consider all information
relative to the character, antecedents, environment, mental and physical condition of the offender and available
institutional and community resources.' (Sec. 8, P.D. 968, 1st paragraph.) (Emphasis supplied.)
In this regard we agree with petitioner's claim that respondent court appears to have wholly relied on the
probation report and did not make its own determination as to whether or not probation would serve the ends of
justice and the best interest of the public and the applicant. It was not enough for the respondent court to deny
petitioner's application solely on the report that she was involved in 'masiao' and that she was facing another
preliminary investigation for the 'additional shortage' of the funds of which she had already pleaded guilty.
Likewise, the fact that there is a pending preliminary investigation against her for the additional shortage does
not also constitute a sufficient basis for a conclusion that she was already guilty thereof.
The finding by the respondent court that 'probation will depreciate the seriousness of the offense committed' can
not be predicated simply on an assertion that concerned citizens of Mandaue City are not in favor of Mrs.
286
Cabatingan's being granted probation especially when disputed by the testimonials of the responsible citizens of
that city. Besides, in evaluating a finding on this point, the purpose of the Probation Law should not be
overlooked.".
[G.R. No. 67301. January 29, 1990.]
MANUEL V. BALA, petitioner, vs. THE HON. JUDGE ANTONIO M. MARTINEZ, THE PEOPLE OF THE
PHILIPPINES, and PAUL AYANG-ANG, Probation Officer, Manila Probation Office No. 4, respondents.
The Solicitor General has made the following recommendation:
Coronel Law Office for petitioner.
"IN THE LIGHT OF THE FOREGOING, it is recommended that Order issue remanding the records of the case
to the Sandiganbayan for the latter to conduct further hearings on the application for probation, with the end in
view of affording applicant full opportunity to dispute the report of the probation officer and prove her
entitlement to probation, and that in the meantime the applicant be allowed immediate provisional liberty under
the original bail."
WHEREFORE, this case is hereby remanded to the Sandiganbayan which is ordered to conduct further hearings
on the application for probation, with the end in view of affording applicant full opportunity to dispute the
report of the probation officer and prove her entitlement to probation. In the meantime the petitioner shall be
immediately released provisionally under her original bail.
SO ORDERED.
Fernando, C.J., Teehankee, Barredo, Makasiar, Aquino, Concepcion, Jr., Fernandez, Guerrero, De Castro and
Melencio-Herrera, JJ., concur.
||| (Cabatingan v. Sandiganbayan, G.R. No. L-55333, [January 22, 1981], 190 PHIL 157-165)
SYLLABUS
1. REMEDIAL LAW; PRESIDENTIAL DECREE NO. 968 (PROBATION LAW OF 1976); PERIOD OF
PROBATION; TERMINATION THEREOF; COURT ORDER OF FINAL DISCHARGE NECESSARY.
Section 16 of PD 968, provides: Sec. 16. Termination of Probation. After the period of probation and upon
consideration of the report and recommendation of the probation officer, the court may order the final discharge
of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the
case is deemed terminated. Thus, the expiration of the probation period alone does not automatically terminate
probation. Nowhere is the ipso facto termination of probation found in the provisions of the probation law.
Probation is not co-terminous with its period. There must first be issued by the court of an order of final
discharge based on the report and recommendation of the probation officer. Only from such can the case of the
probationer be deemed terminated.
2. ID.; ID.; FINAL REPORT OF PROBATION OFFICER GIVEN WEIGHT. A major role is played by the
probation officer in the release of the probationer because he (probation officer) is in the best position to report
all information relative to the conduct and mental and physical condition of the probationer in his environment,
and the existing institutional and community resources that he may avail himself of when necessary. Indeed, it
is the probation officer who primarily undertakes the supervision and reform of the probationer through a
personalized, individualized, and community-based rehabilitation program for a specific period of time. On the
basis of his final report, the court can determine whether or not the probationer may be released from probation.
SECOND DIVISION
3. ID.; ID.; VIOLATION OF CONDITIONS IMPOSED THEREIN SUBJECTS PROBATION TO
REVOCATION. In the instant case, a review of the records compels a revocation of the probation without
287
the need of further proceedings in the trial court which, after all, would only be an exercise in futility. If we
render justice now, why should we allow the petitioner to further delay it. Probationer Manuel Bala failed to
reunite with responsible society. Precisely he was granted probation in order to give him a chance to return to
the main stream, to give him hope hope for self-respect and a better life. Unfortunately, he has continued to
shun the straight and narrow path. He thus wrecked his chance. He has not reformed. The petitioner, by
applying for probation and getting it, consented to be emancipated from the yoke if not stigma of a prison
sentence, pledging to faithfully comply with the conditions of his probation, among which are: . . . 4. To be
gainfully employed and be a productive member of society; . . . 6. To cooperate fully with his program of
supervision and rehabilitation that will be prescribed by the Probation Officer. These conditions, as the records
show, were not complied with. This non-compliance has defeated the very purposes of the probation law, to wit:
(a) promote the correction and rehabilitation of an offender by providing him with individualized treatment; (b)
provide an opportunity for the reformation of a penitent offender which might be less probable if he were to
serve a prison sentence; and (c) prevent the commission of offenses. By his actuations, probationer-petitioner
Manuel V. Bala has ridiculed the probation program. Instead of utilizing his temporary liberty to rehabilitate and
reintegrate himself as a productive, law abiding, and socially responsible member of society, he continued in his
wayward ways falsifying public or official documents. These facts are evident and constitute violations of
the conditions of his probation. Thus, the revocation of his probation is compelling.
4. ID.; ID.; REVOKED PROBATION; PERIOD THEREOF CANNOT BE CREDITED TO THE ORIGINAL
SENTENCE IMPOSED ON THE CONVICT. The probation having been revoked, it is imperative that the
probationer be arrested so that he can serve the sentence originally imposed. The expiration of the probation
period of one year is of no moment, there being no order of final discharge as yet, as we stressed earlier. Neither
can there be a deduction of the one year probation period from the penalty of one year and one day to three
years, six months, and twenty-one days of imprisonment because an order placing the defendant on "probation"
is not a "sentence," but is in effect a suspension of the imposition of the sentence. It is not a final judgment but
an "interlocutory judgment" in the nature of a conditional order placing the convicted defendant under the
supervision of the court for his reformation, to be followed by a final judgment of discharge, if the conditions of
the probation are complied with, or by a final judgment if the conditions are violated.
petitioner, the State is not barred from revoking such a privilege. Otherwise, the seriousness of the offense is
lessened if probation is not revoked.
6. ID.; REGIONAL TRIAL COURT; JURISDICTION THEREOF COVERS ENTIRE JUDICIAL REGION.
In criminal cases, venue is an element of jurisdiction. Such being the case, the Manila RTC would not be
deprived of its jurisdiction over the probation case. To uphold the petitioner's contention would mean a
depreciation of the Manila court's power to grant probation in the first place. It is to be remembered that when
the petitioner-accused applied for probation in the then CFI of Manila, he was a resident of Las Pias, as he is
up to now, although in a different subdivision. As pointed out earlier, he merely moved from BF Homes to
Philam Life Subdivision, 33 Jingco Street, also in Las Pias. On the other hand, pursuing the petitioner's
argument on this score to the limits of its logic would mean that his probation was null and void in the first
place, because then the Manila CFI was without jurisdiction to grant him probation as he was a resident of Las
Pias. It is therefore incorrect to assume that the petitioner's change of abode compels change of venue, and
necessarily, control over the petitioner, to the Executive Judge of the RTC of his new residence. Thus, in the
apportionment of the regional trial courts under Batas Pambansa Blg. 129, otherwise known as the Judiciary
Reorganization Act of 1980, Las Pias is one among the municipalities included in the National Capital Judicial
Region (Metro Manila) with a seat at Makati. Needless to say, the Regional Trial Court in Makati, like the
Manila Regional Trial Court, forms part of the Regional Trial Court of the National Capital Region.
Accordingly, the various branches of the regional trial courts of Makati or Manila under the National Capital
Region, are coordinate and co-equal courts, the totality of which is only one Regional Trial Court. Jurisdiction is
vested in the court, not in the judges. In other words, the case does not attach to the branch or judge. Therefore,
in this case, RTC Branch XX of Manila, which granted the probation, has not lost control and supervision over
the probation of the petitioner.
DECISION
SARMIENTO, J p:
5. ID.; ID.; BENEFITS THEREIN; MERE PRIVILEGE; GRANT THEREOF DISCRETIONARY.
Probation is a mere privilege. Privilege is a peculiar benefit or immunity conferred by law on a person or group
of persons, not enjoyed by others or by all; special enjoyment of a good or exemption from an evil; it is a
special prerogative granted by law to some persons. Accordingly, the grant of probation rests solely upon the
discretion of the court. This discretion is to be exercised primarily for the benefit of organized society, and only
incidentally for the benefit of the accused. If the probationer has proven to be unrepentant, as in the case of the
The petitioner by this Petition for Certiorari and Prohibition with Preliminary Injunction and/or Temporary
Restraining Order seeks the reversal of the order dated April 2, 1984 of the then Court of First Instance (CFI),
now Regional Trial Court (RTC), of Manila, Branch XX. 1 The decretal portion of the assailed order reads:
288
WHEREFORE, for the reasons above-stated, the motion to dismiss and or strike out motion to revoke
probation, filed by Manuel Bala, thru counsel, should be, as it is hereby DENIED, for lack of merit.
After the case had been remanded to the court of origin for execution of judgment, 2 the petitioner applied for
and was granted probation by the respondent judge in his order dated August 11, 1982. The petitioner was then
placed under probation for a period of one (1) year, subject to the terms and conditions enumerated therein.
Let the motion be set for continuation of hearing on April 25 & 27, at 8:30 o'clock in the morning.
SO ORDERED.
The petitioner had been indicted for removing and substituting the picture of Maria Eloisa Criss Diazen which
had been attached to her United States of America passport, with that of Florencia Notarte, in effect falsifying a
genuine public or official document. On January 3, 1978, the trial court adjudged petitioner Manuel Bala in
Criminal Case No. 24443, guilty of the crime of falsification of a public document. The dispositive portion of
the judgment states:
WHEREFORE, in view of the foregoing, the Court finds the accused Manuel Bala y Valdellon guilty beyond
reasonable doubt of the crime of falsification of a public or official document defined and penalized under
article 172 of the Revised Penal Code, without any mitigating or aggravating circumstances. Applying the
Indeterminate Sentence Law, he is hereby sentenced to an indeterminate penalty of not less than ONE (1)
YEAR AND ONE (1) DAY and not exceeding THREE (3) YEARS, SIX (6) MONTHS & TWENTY-ONE (21)
DAYS of prision correccional, to pay a fine of P1,800.00 with subsidiary imprisonment in case of insolvency at
the rate of P8.00 for each day, and to pay the cost. He shall be credited with the period of preventive
imprisonment that he may have undergone in accordance with law.
The petitioner seasonably appealed, but the Court of Appeals, on April 9, 1980, affirmed in toto the lower
court's decision.
On September 23, 1982, the probationer (petitioner) asked his supervising probation officer for permission to
transfer his residence from BF Homes to Phil-Am Life Subdivision in Las Pias, specifically 33 Jingco Street.
The probation officer verbally granted the probationer's request as he found nothing objectionable to it.
By the terms of the petitioner's probation, it should have expired on August 10, 1983, 3 one year after the order
granting the same was issued. But, the order of final discharge could not be issued because the respondent
probation officer had not yet submitted his final report on the conduct of his charge.
On December 8, 1983, the respondent People of the Philippines, through Assistant City Fiscal Jose D. Cajucom
of Manila, filed a motion to revoke the probation of the petitioner before Branch XX of the Regional Trial Court
(RTC) of Manila, presided over by the respondent judge. 4 The motion alleged that the petitioner had violated
the terms and conditions of his probation.
On January 4, 1984, the petitioner filed his opposition to the motion on the ground that he was no longer under
probation, 5 his probation period having terminated on August 10, 1983, as previously adverted to. As such, no
valid reason existed to revoke the same, he contended.
As if to confirm the Manila Assistant City Fiscal's motion to revoke the petitioner's probation, the respondent
probation officer filed on January 6, 1984, a motion to terminate Manuel Bala's probation, at the same time
attaching his progress report on supervision dated January 5, 1984. 6 The same motion, however, became the
subject of a 'Manifestation,' dated January 30, 1984, which stated that the probation officer was not pursuing the
motion to terminate dated January 6, 1984; instead, he was submitting a supplemental report 7 which
recommended the revocation of probation "in the light of new facts, information, and evidences."
Thereafter, the petitioner filed a motion to dismiss and/or strike out the motion to revoke probation, questioning
the jurisdiction of the court over his case inasmuch as his probation period had already expired. Moreover, his
289
change of residence automatically transferred the venue of the case from the RTC of Manila to the Executive
Judge of the RTC of Makati which latter court includes under its jurisdiction the Municipality of Las Pias, the
probationer's place of residence, invoking Section 13, P.D. No. 968, which provides:
Sec. 13. Control and Supervision of Probationer. . . . .
Whenever a probationer is permitted to reside in a place under the jurisdiction of another court, control over
him shall be transferred to the Executive Judge of the Court of First Instance of that place, and in such a case, a
copy of the probation order, the investigation report and other pertinent records shall be furnished to said
Executive Judge. Thereafter, the Executive Judge to whom jurisdiction over the probationer is transferred shall
have the power with respect to him that was previously possessed by the court which granted the probation.
The Court finds no merit in the petition.
Probation is revocable before the final discharge of the probationer by the court, contrary to the petitioner's
submission.
Section 16 of PD 968 8 is clear on this score:
Sec. 16. Termination of Probation. After the period of probation and upon consideration of the report and
recommendation of the probation officer, the court may order the final discharge of the probationer upon finding
that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated.
As stated at the outset, the respondent judge denied the motion to dismiss for lack of merit.
Hence, this petition. LLphil
The present law on probation, Presidential Decree (P.D.) 1990, which amends section 4 of P.D. 968, clearly
states that "no application for probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction."
However, in the case at bar, P.D. 1990 is inapplicable. P.D. 1990 which went in force on January 15, 1985 can
not be given retroactive effect because it would be prejudicial to the accused.
It is worthy to note, that what was actually resolved and denied was the motion to dismiss and/or strike out the
motion to revoke probation which disposed of only the issue of the petitioner's transfer of residence. The motion
did not touch on the issue of the timeliness to revoke probation. The respondent judge has not yet heard and
received evidence, much less acted on the matter. Accordingly, the Solicitor General submits that the present
petition is premature.
Thus, the expiration of the probation period alone does not automatically terminate probation. Nowhere is the
ipso facto termination of probation found in the provisions of the probation law. Probation is not co-terminous
with its period. There must first be issued by the court of an order of final discharge based on the report and
recommendation of the probation officer. Only from such can the case of the probationer be deemed terminated.
The period of probation may either be shortened or made longer, but not to exceed the period set in the law.
This is so because the period of probation, like the period of incarceration, is deemed the appropriate period for
the rehabilitation of the probationer. In the instant case, a review of the records compels a revocation of the
probation without the need of further proceedings in the trial court which, after all, would only be an exercise in
futility. If we render justice now, why should we allow the petitioner to further delay it. Probationer Manuel
Bala failed to reunite with responsible society. Precisely he was granted probation in order to give him a chance
to return to the main stream, to give him hope hope for self-respect and a better life. Unfortunately, he has
continued to shun the straight and narrow path. He thus wrecked his chance. He has not reformed. cdphil
A major role is played by the probation officer in the release of the probationer because he (probation officer) is
in the best position to report all information relative to the conduct and mental and physical condition of the
probationer in his environment, and the existing institutional and community resources that he may avail
290
himself of when necessary. Indeed, it is the probation officer who primarily undertakes the supervision and
reform of the probationer through a personalized, individualized, and community-based rehabilitation program
for a specific period of time. On the basis of his final report, the court can determine whether or not the
probationer may be released from probation.
We find it reprehensible that the respondent probation officer had neglected to submit his report and
recommendation. For, as earlier discussed, without this report, the trial court could not issue the order of final
discharge of the probationer. And it is this order of final discharge which would restore the probationer's
suspended civil rights. In the absence of the order of final discharge, the probation would still subsists, unless
otherwise revoked for cause and that is precisely what we are going to do. We are revoking his probation for
cause.
The petitioner, by applying for probation and getting it, consented to be emancipated from the yoke if not
stigma of a prison sentence, pledging to faithfully comply with the conditions of his probation, among which
are:
"xxx xxx xxx
4. To be gainfully employed and be a productive member of society;
xxx xxx xxx
6. To cooperate fully with his program of supervision and rehabilitation that will be prescribed by the Probation
Officer." 9
(a) promote the correction and rehabilitation of an offender by providing him with individualized treatment;
(b) provide an opportunity for the reformation of a penitent offender which might be less probable if he were to
serve a prison sentence; and
(c) prevent the commission of offenses. 10
By his actuations, probationer-petitioner Manuel V. Bala has ridiculed the probation program. Instead of
utilizing his temporary liberty to rehabilitate and reintegrate himself as a productive, law abiding, and socially
responsible member of society, he continued in his wayward ways falsifying public or official documents.
Cdpr
Specifically, on April 30, 1984, the Regional Trial Court of Manila, National Capital Judicial Region, Branch
XXX, convicted the petitioner, along with two other persons, Lorenzo Rolo y Punzalan and Efren Faderanga y
Fesalbon, for falsification of public and/or official documents (U.S. Passports), under Article 172, in relation to
Article 171, of the Revised Penal Code, in five separate informations, in Criminal Cases Nos. 29100, 29101,
29102, 29103, and 29107. The trial court imposed upon each of them in all five (5) cases a prison term of "two
(2) years of prision correccional, as minimum, to four (4) years also of prision correccional, as maximum, to
pay a fine of P2,000, the accessory penalties thereof, and to pay the costs." On appeal, the Court of Appeals
affirmed the judgment of the RTC with modification by granting restitution of the amounts they collected from
the offended private parties. The judgment has since become final. As a matter of fact, for failure of the
petitioner to appear for execution of judgment despite notice, the trial court ordered the arrest of Manuel Bala
on July 10, 1989. A warrant of arrest against Bala was issued on July 12, 1989 and this warrant has not yet been
implemented because Bala absconded. These facts are evident and constitute violations of the conditions of his
probation. Thus, the revocation of his probation is compelling.
These conditions, as the records show, were not complied with. This non-compliance has defeated the very
purposes of the probation law, to wit:
291
At any time during the probation, the court may issue a warrant for the arrest of a probationer for violation of
any of the conditions of probation. The probationer, once arrested and detained, shall immediately be brought
before the court for a hearing which may be informal and summary, of the violation charged. . . . If the violation
is established, the court may revoke or continue his probation and modify the conditions thereof. If revoked, the
court shall order the probationer to serve the sentence originally imposed. An order revoking the grant of
probation or modifying the terms and conditions thereof shall not be appealable. 11
(Emphasis supplied.)
The probation having been revoked, it is imperative that the probationer be arrested so that he can serve the
sentence originally imposed. The expiration of the probation period of one year is of no moment, there being no
order of final discharge as yet, as we stressed earlier. Neither can there be a deduction of the one year probation
period from the penalty of one year and one day to three years, six months, and twenty-one days of
imprisonment because an order placing the defendant on "probation" is not a "sentence," but is in effect a
suspension of the imposition of the sentence. 12 It is not a final judgment but an "interlocutory judgment" in the
nature of a conditional order placing the convicted defendant under the supervision of the court for his
reformation, to be followed by a final judgment of discharge, if the conditions of the probation are complied
with, or by a final judgment if the conditions are violated." 13
Lastly, probation is a mere privilege. Privilege is a peculiar benefit or immunity conferred by law on a person or
group of persons, not enjoyed by others or by all; special enjoyment of a good or exemption from an evil; it is a
special prerogative granted by law to some persons. 14 Accordingly, the grant of probation rests solely upon the
discretion of the court. This discretion is to be exercised primarily for the benefit of organized society, and only
incidentally for the benefit of the accused. 15 If the probationer has proven to be unrepentant, as in the case of
the petitioner, the State is not barred from revoking such a privilege. Otherwise, the seriousness of the offense is
lessened if probation is not revoked. Cdpr
On the second assigned error, the petitioner argues that his transfer of residence automatically transferred
jurisdiction over his probation from the Manila Regional Trial Court to the same court in his new address.
In criminal cases, venue is an element of jurisdiction. 16 Such being the case, the Manila RTC would not be
deprived of its jurisdiction over the probation case. To uphold the petitioner's contention would mean a
depreciation of the Manila court's power to grant probation in the first place. It is to be remembered that when
the petitioner-accused applied for probation in the then CFI of Manila, he was a resident of Las Pias, as he is
up to now, although in a different subdivision. As pointed out earlier, he merely moved from BF Homes to
Philam Life Subdivision, 33 Jingco Street, also in Las Pias. 17 On the other hand, pursuing the petitioner's
argument on this score to the limits of its logic would mean that his probation was null and void in the first
place, because then the Manila CFI was without jurisdiction to grant him probation as he was a resident of Las
Pias.
It is therefore incorrect to assume that the petitioner's change of abode compels change of venue, and
necessarily, control over the petitioner, to the Executive Judge of the RTC of his new residence. Thus, in the
apportionment of the regional trial courts under Batas Pambansa Blg. 129, otherwise known as the Judiciary
Reorganization Act of 1980, Las Pias is one among the municipalities included in the National Capital Judicial
Region (Metro Manila) with a seat at Makati. 18 Needless to say, the Regional Trial Court in Makati, like the
Manila Regional Trial Court, forms part of the Regional Trial Court of the National Capital Region. 19
Accordingly, the various branches of the regional trial courts of Makati or Manila under the National Capital
Region, are coordinate and co-equal courts, the totality of which is only one Regional Trial Court. Jurisdiction is
vested in the court, not in the judges. In other words, the case does not attach to the branch or judge. 20
Therefore, in this case, RTC Branch XX of Manila, which granted the probation, has not lost control and
supervision over the probation of the petitioner.
The petitioner also claims that he had verbally obtained permission to transfer residence from his probation
officer. This would not suffice; the law is very explicit in its requirement of a prior court approval in writing.
Section 10 of PD 968 categorically decrees that the probationer must. Cdpr
xxx xxx xxx
(j) reside at premises approved by it (court) and not to change his residence without its prior written approval;
We disagree.
xxx xxx xxx
292
DECISION
Further, such written approval is required by the 21 probation order of August 11, 1982 as one of the conditions
of probation, to wit:
(3) To reside in BF Homes, Las Pias and not to change said address nor leave the territorial jurisdiction of
Metro Manila for more than twenty-four (24) hours without first securing prior written approval of his
Probation Officer.
In the light of all the foregoing and in the interest of the expeditious administration of justice, we revoke the
probation of the petitioner for violations of the conditions of his probation, instead of remanding the case to the
trial court and having the parties start all over again in needless protracted proceedings. 22
WHEREFORE, the Petition is DISMISSED and the probation of the petitioner is hereby REVOKED. Further,
the trial court is ORDERED to issue a warrant for the arrest of the petitioner and for him to serve the sentence
originally imposed without any deduction. Costs against the petitioner. LLjur
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.
||| (Bala v. Martinez, G.R. No. 67301, [January 29, 1990], 260 PHIL 488-501)
LEONARDO-DE CASTRO, J p:
On automatic review is the decision 1 dated July 14, 2005 of the Court of Appeals (CA) in CA-G.R. CR-HC
No. 00717 which affirmed, with modifications, an earlier decision 2 of the Regional Trial Court (RTC) of Ligao
City, Branch 13, in Criminal Case No. 4134, finding herein accused-appellant Richard O. Sarcia alias "Nogi"
guilty beyond reasonable doubt of the crime of rape 3 committed against AAA, 4 and sentenced him to suffer
the penalty of Reclusion Perpetua and to pay the amount of P50,000.00 as civil indemnity, P50,000.00 as moral
damages, and the cost of the suit. However, the CA modified the penalties imposed by the RTC by imposing the
death penalty, increasing the award of civil indemnity to P75,000.00, and awarding P25,000.00 as exemplary
damages, aside from the P50,000.00 for moral damages.
The crime of rape was allegedly committed sometime in 1996 against AAA, a five (5) year old girl. After
almost four (4) years, AAA's father filed a complaint 5 for acts of lasciviousness against herein accusedappellant on July 7, 2000. Upon review of the evidence, the Office of the Provincial Prosecutor at Ligao, Albay
upgraded the charge to rape. 6 The Information 7 dated September 5, 2000 reads:
That sometime in 1996 at Barangay Doa Tomasa, Municipality of Guinobatan, Province of Albay, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design,
and by means of force, threats and intimidation, did then and there willfully, unlawfully and feloniously have
sexual intercourse with [AAA], who was then 6 years of age, against her will and consent, to her damage and
prejudice.
ACTS CONTRARY TO LAW.
EN BANC
[G.R. No. 169641. September 10, 2009.]
At his arraignment on October 25, 2000, accused-appellant, with the assistance of his counsel, entered a plea of
not guilty. 8 Thereafter, trial on the merits ensued.
PEOPLE OF THE PHILIPPINES, petitioner, vs. RICHARD O. SARCIA, respondent.
293
The prosecution presented the oral testimonies of the victim AAA; her minor cousin; her father; and Dr. Joana
Manatlao, the Municipal Health Officer of Guinobatan, Albay. The defense presented the accused-appellant
himself, who vehemently denied committing the crimes imputed to him and Manuel Casimiro, Cleric of Court
II of the Municipal Trial Court at Guinobatan, Albay. ASCTac
Let the entire records of this case be elevated to the Supreme Court for review, pursuant to A.M. No. 00-5-03SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases), which took
effect on October 15, 2004.
SO ORDERED.
On January 17, 2003, the trial court rendered its Decision 9 finding the accused-appellant guilty of the crime of
rape and imposed the penalty mentioned above.
On September 30, 2005, the case was elevated to this Court for further review. 14
The record of this case was forwarded to this Court in view of the Notice of Appeal filed by the accusedappellant. 10
Accused-appellant filed his Appellant's Brief 11 on July 15, 2004, while the People, through the Office of the
Solicitor General, filed its Appellee's Brief 12 on December 15, 2004.
In our Resolution 15 of November 15, 2005, we required the parties to simultaneously submit their respective
supplemental briefs. Accused-appellant filed his Supplemental Brief 16 on April 7, 2006. Having failed to
submit one, the Office of the Solicitor General (OSG) was deemed to have waived the filing of its supplemental
brief.
In his Brief filed before the CA, accused-appellant raised the following assignment of errors:
Pursuant to our pronouncement in People v. Mateo, 13 modifying the pertinent provisions of the Revised Rules
on Criminal Procedure insofar as they provide for direct appeals from the RTC to this Court in cases in which
the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, and the Resolution
dated September 19, 1995 in "Internal Rules of the Supreme Court", the case was transferred, for appropriate
action and disposition, to the CA where it was docketed as CA-G.R. CR-H.C. No. 00717.
As stated at the beginning hereof, the CA, in its decision of July 14, 2005, in CA-G.R. CR-H.C. No. 000717,
affirmed with modification the judgment of conviction pronounced by the trial court. We quote the fallo of the
CA decision:
THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF [AAA], [her
cousin] and [her father]. EAHcCT
II
WHEREFORE, the judgment of conviction is AFFIRMED. The accused, Richard Sarcia y Olivera, is ordered to
suffer the penalty of DEATH, and to pay the victim, [AAA], the amount of (1) P75,000.00 as civil indemnity;
(2) P50,000.00 as moral damages, and (3) P25,000.00 as exemplary damages.
THE LOWER COURT GLARINGLY ERRED IN REJECTING THE DEFENSE OF ALIBI INTERPOSED BY
THE ACCUSED WHICH IS MORE CREDIBLE.
294
III
THE LOWER COURT GRAVELY ERRED IN NOT ACQUITTING THE ACCUSED RICHARD SARCIA.
The evidence for the prosecution is summarized by the OSG in the Appellee's Brief, as follows:
On December 16, 1996, five-year-old [AAA], together with her [cousin and two other playmates], was playing
in the yard of Saling Crisologo near a mango tree.
Suddenly, appellant appeared and invited [AAA] to go with him to the backyard of Saling Crisologo's house.
She agreed. Unknown to appellant, [AAA's cousin] followed them.
Upon reaching the place, appellant removed [AAA's] shorts and underwear. He also removed his trousers and
brief. Thereafter, he ordered [AAA] to lie down on her back. Then, he lay on top of her and inserted his penis
into [AAA's] private organ. Appellant made an up-and-down movement ("Nagdapadapa tabi"). [AAA] felt
severe pain inside her private part and said "aray". She also felt an intense pain inside her stomach.
[AAA's cousin], who positioned herself around five (5) meters away from them, witnessed appellant's dastardly
act. Horrified, [AAA's cousin] instinctively rushed to the house of [AAA's] mother, her aunt Emily, and told the
latter what she had seen. [AAA's] mother answered that they (referring to {AAA and her cousin} were still very
young to be talking about such matters.
Meanwhile, after satisfying his lust, appellant stood up and ordered [AAA] to put on her clothes. Appellant then
left.
Perplexed, [AAA's cousin] immediately returned to the backyard of Saling Crisologo where she found [AAA]
crying. Appellant, however, was gone. [AAA's cousin] approached [AAA] and asked her what appellant had
done to her. When [AAA] did not answer, [her cousin] did not ask her any further question and just
accompanied her home.
At home, [AAA] did not tell her mother what appellant had done to her because she feared that her mother
might slap her. Later, when her mother washed her body, she felt a grating sensation in her private part.
Thereafter, [AAA] called for [her cousin]. [AAA's cousin] came to their house and told [AAA's] mother again
that appellant had earlier made an up-and-down movement on top of [AAA]. [AAA's mother], however did not
say anything. At that time, [AAA's] father was working in Manila. ICESTA
Dr. Joana Manatloa is the Municipal Health Officer of Guinobatan, Albay. She testified that: (1) it was the rural
health officer, Dr. Reantaso, who conducted a physical examination on [AAA]; (2) Dr. Reantaso prepared and
signed a medico-legal certificate containing the result of [AAA]'s examination; (3) Dr. Reantaso, however, had
already resigned as rural health officer of Guinobatan, Albay; (4) as a medical doctor, she can interpret, the
findings in said medico-legal certificate issued to [AAA]; (5) [AAA]'s medical findings are as follows:
"negative for introital vulvar laceration nor scars, perforated hymen, complete, pinkish vaginal mucosa, vaginal
admits little finger with resistance; (6) the finding "negative for introital bulvar laceration nor scars" means, in
layman's language, that there was no showing of any scar or wound, and (7) there is a complete perforation of
the hymen which means that it could have been subjected to a certain trauma or pressure such as strenuous
exercise or the entry of an object like a medical instrument or penis". 17
On the other hand, the trial court summarized the version of the defense as follows:
Richard Sarcia, 24 years old, single, student and a resident of Doa Tomasa, Guinobatan, Albay denied he raped
[AAA]. While he knows [AAA's] parents, because sometimes they go to their house looking for his father to
borrow money, he does not know [AAA] herself. His father retired as a fireman from Crispa in 1991 while his
mother worked as an agriculturist in the Municipality of Teresa, Antipolo, Rizal. As an agriculturist of the
Department of Agriculture, his mother would bring seedlings and attend seminars in Batangas and Baguio. They
were residing in Cainta, Rizal when sometime in 1992 they transferred residence to Guinobatan, Albay. His
father is from barangay Masarawag while his mother is from barangay Doa Tomasa both of Guinobatan,
Albay. After their transfer in Guinobatan, his mother continued to be an agriculturist while his father tended to
his 1-hectare coconut land. Richard testified he was between fourteen (14) and fifteen (15) years old in 1992
295
when they transferred to Guinobatan. Between 1992 and 1994 he was out of school. But from 1994 to 1998 he
took his high school at Masarawag High School. His daily routine was at about 4:00 o'clock in the afternoon
after school before proceeding home he would usually play basketball at the basketball court near the church in
Doa Tomasa about 1 kilometer away from their house. When her mother suffered a stroke in 1999 he and his
father took turns taking care of his mother. Richard denied molesting other girls . . . and was most surprised
when he was accused of raping [AAA]. He knows Saling Crisologo and the latter's place which is more than
half kilometer to their house. Richard claimed Salvacion Bobier, grandmother of Mae Christine Camu, whose
death on May 7, 2000 was imputed to him and for which a case for Murder under Criminal Case No. 4087 was
filed against him with the docile cooperation of [AAA's] parents who are related to Salvacion, concocted and
instigated [AAA's] rape charge against him to make the case for Murder against him stronger and life for him
miserable. He was incarcerated on May 10, 2000 for the Murder charge and two (2) months later while he
already in detention, the rape case supposedly committed in 1996 was filed against him in the Municipal Trial
Court (MTC) of Guinobatan, Albay. He was to learn about it from his sister, Marivic, on a Sunday afternoon
sometime on July 20, 2000 when his sister visited him in jail. He naturally got angry when he heard of this rape
charge because he did not do such thing and recalled telling his sister they can go to a doctor and have the child
examine to prove he did not rape her. Subsequently, from his sister again he was to learn that the rape case was
ordered dismissed.
On cross-examination, Richard admitted [AAA's] mother, is also related to his father, [AAA mother's] father,
being a second cousin of his father. Richard is convinced it is not the lending of money by his father to the
AAA's family as the motive for the latter to file the rape case against him but the instigation of Salvacion
Bobier.
Manuel A. Casimiro, Clerk of Court II of the Municipal Trial Court (MTC), Guinobatan, Albay, testified on the
records of Criminal Case No. 7078 filed in MTC Guinobatan, Albay against Richard Sarcia for Rape in relation
to RA 7610 relative to the alleged withdrawal of said rape case but the accused through counsel failed to
formally offer the marked exhibits relative to said case. 18
Accused-appellant alleges that the trial court erred in convicting him, as the prosecution was not able to prove
his guilt beyond reasonable doubt. He assailed the credibility of the prosecution witnesses, AAA, her cousin and
her father on the following grounds: (1) the testimonies of AAA and her cousin were inconsistent with each
other; (2) the victim was confused as to the date and time of the commission of the offense; (3) there was a fouryear delay in filing the criminal case, and the only reason why they filed the said case was "to help Salvacion
Bobier get a conviction of this same accused in a murder case filed by said Salvacion Bobier for the death of her
granddaughter Mae Christine Camu on May 7, 2000". Accused-appellant stressed that the same Salvacion
Bobier helped AAA's father in filing the said case for rape. Accused-appellant also claimed that the prosecution
failed to prove that he employed force, threats or intimidation to achieve his end. Finally, accused-appellant
harped on the finding in the medical certificate issued by Dr. Reantaso and interpreted by Dr. Joana Manatlao,
stating "negative for introital bulvar laceration nor scar which means that there was no showing of any scar or
wound". TAIDHa
In his Appellee's Brief accused-appellant pointed out the inconsistencies between AAA's and her cousin's
testimonies as follows: (1) the cousin testified that she played with AAA at the time of the incident, while AAA
testified that she was doing nothing before accused-appellant invited her to the back of the house of a certain
Saling; (2) the cousin testified that when she saw accused-appellant doing the push-and-pull motion while on
top of AAA, the latter shouted in a loud voice contrary to AAA's testimony that when accused-appellant was
inside her and started the up-and-down motion, she said "aray"; (3) when the cousin returned to AAA after
telling the latter's mother what accused-appellant had done to AAA, she found AAA crying. AAA however
testified that, after putting on her clothes, she invited the cousin to their house; and (4) the cousin testified that
other children were playing at the time of the incident, but AAA testified that there were only four of them who
were playing at that time.
As it is oft-repeated, inconsistencies in the testimonies of witnesses, which refer only to minor details and
collateral matters, do not affect the veracity and weight of their testimonies where there is consistency in
relating the principal occurrence and the positive identification of the accused. Slight contradictions in fact even
serve to strengthen the credibility of the witnesses and prove that their testimonies are not rehearsed. Nor are
such inconsistencies, and even improbabilities, unusual, for there is no person with perfect faculties or senses.
19 The alleged inconsistencies in this case are too inconsequential to overturn the findings of the court a quo. It
is important that the two prosecution witnesses were one in saying that it was accused-appellant who sexually
abused AAA. Their positive, candid and straightforward narrations of how AAA was sexually abused by
accused-appellant evidently deserve full faith and credence. When the rape incident happened, AAA was only
five (5) years old; and when she and her cousin testified, they were barely 9 and 11 years old, respectively. This
Court has had occasion to rule that the alleged inconsistencies in the testimonies of the witnesses can be
explained by their age and their inexperience with court proceedings, and that even the most candid of witnesses
commit mistakes and make confused and inconsistent statements. This is especially true of young witnesses,
296
who could be overwhelmed by the atmosphere of the courtroom. Hence, there is more reason to accord them
ample space for inaccuracy. 20
Accused-appellant capitalizes on AAA's inability to recall the exact date when the incident in 1996 was
committed. Failure to recall the exact date of the crime, however, is not an indication of false testimony, for
even discrepancies regarding exact dates of rapes are inconsequential and immaterial and cannot discredit the
credibility of the victim as a witness. 21 In People v. Purazo, 22 We ruled:
We have ruled, time and again that the date is not an essential element of the crime of rape, for the gravamen of
the offense is carnal knowledge of a woman. As such, the time or place of commission in rape cases need not be
accurately stated. As early as 1908, we already held that where the time or place or any other fact alleged is not
an essential element of the crime charged, conviction may be had on proof of the commission of the crime, even
if it appears that the crime was not committed at the precise time or place alleged, or if the proof fails to sustain
the existence of some immaterial fact set out in the complaint, provided it appears that the specific crime
charged was in fact committed prior to the date of the filing of the complaint or information within the period of
the statute of limitations and at a place within the jurisdiction of the court.
Also in People v. Salalima, 23 the Court held:
Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information
defective on its face. The reason is obvious. The precise date or time when the victim was raped is not an
element of the offense. The gravamen of the crime is the fact of carnal knowledge under any of the
circumstances enumerated under Article 335 of the Revised Penal Code. As long as it is alleged that the offense
was committed at any time as near to the actual date when the offense was committed an information is
sufficient. In previous cases, we ruled that allegations that rapes were committed "before and until October 15,
1994", "sometime in the year 1991 and the days thereafter", "sometime in November 1995 and some occasions
prior and/or subsequent thereto" and "on or about and sometime in the year 1988" constitute sufficient
compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure. TcSaHC
The rape took place in 1996. As earlier noted by the Court the date December 15, 1996 mentioned by [AAA]
may have been arbitrarily chosen by the latter due to the intense cross-examination she was subjected but the
Court believes it could have been in any month and date in the year 1996 as in fact neither the information nor
[AAA's] sworn statement mention the month and date but only the year. 24
Likewise, witnesses' credibility is not affected by the delay in the filing of the case against accused-appellant.
Neither does the delay bolster accused-appellant's claim that the only reason why this case was filed against him
was "to help Salvacion Bobier get a conviction of this same accused-appellant in the case of murder filed by
Salvacion Bobier for the death of her granddaughter Mae Christine Camu on May 7, 2000".
The rape victim's delay or hesitation in reporting the crime does not destroy the truth of the charge nor is it an
indication of deceit. It is common for a rape victim to prefer silence for fear of her aggressor and the lack of
courage to face the public stigma of having been sexually abused. In People v. Coloma 25 we even considered
an 8-year delay in reporting the long history of rape by the victim's father as understandable and not enough to
render incredible the complaint of a 13-year-old daughter. Thus, in the absence of other circumstances that show
that the charge was a mere concoction and impelled by some ill motive, delay in the filing of the complainant is
not sufficient to defeat the charge. Here, the failure of AAA's parents to immediately file this case was
sufficiently justified by the complainant's father in the latter's testimony, thus:
Q But, did you not say, please correct me if I am wrong, you got angry when your wife told you that something
happened to Hazel way back in 1996?
A Yes, sir.
Q Yet, despite your anger you were telling us that you waited until June to file this case?
In this case, AAA's declaration that the rape incident took place on December 15, 1996 was explained by the
trial court, and we quote:
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A After I heard about the incident, I and my wife had a talk for which reason that during that time we had no
money yet to use in filing the case, so we waited. When we were able to save enough amounts, we filed the
case. 26
Accused-appellant also contends that he could not be liable for rape because there is no proof that he employed
force, threats or intimidation in having carnal knowledge of AAA. Where the girl is below 12 years old, as in
this case, the only subject of inquiry is whether "carnal knowledge" took place. Proof of force, intimidation or
consent is unnecessary, since none of these is an element of statutory rape. There is a conclusive presumption of
absence of free consent when the rape victim is below the age of twelve. 27
Accused-appellant harps on the medical report, particularly the conclusion quoted as follows: "negative for
introital bulvar laceration nor scars, which means, in layman language, that there was no showing of any scar or
wound". The Court has consistently ruled that the presence of lacerations in the victim's sexual organ is not
necessary to prove the crime of rape and its absence does not negate the fact of rape. A medical report is not
indispensable in a prosecution for rape. 28 What is important is that AAA's testimony meets the test of
credibility, and that is sufficient to convict the accused. CAaSHI
Accused-appellant's defense of denial was properly rejected. Time and time again, we have ruled that denial like
alibi is the weakest of all defenses, because it is easy to concoct and difficult to disprove. Furthermore, it cannot
prevail over the positive and unequivocal identification of appellant by the offended party and other witnesses.
Categorical and consistent positive identification, absent any showing of ill motive on the part of the eyewitness
testifying on the matter, prevails over the appellants' defense of denial and alibi. 29 The shallow hypothesis put
forward by accused-appellant that he was accused of raping AAA due to the instigation of Salvacion Bobier
hardly convinces this Court. On this score, the trial court aptly reached the following conclusion:
. . . True, Salvacion Bobier actively assisted AAA's family file the instant case against the accused, but the
Court believes [AAA's] parents finally decided to file the rape case because after they have come to realize after
what happened to Mae Christine Camu that what previously [AAA and her cousin] told her mother and which
the latter had continually ignored is after all true.
AAA was barely 9 years of age when she testified. It has been stressed often enough that the testimony of rape
victims who are young and immature deserve full credence. It is improbable for a girl of complainant's age to
fabricate a charge so humiliating to herself and her family had she not been truly subjected to the painful
experience of sexual abuse. At any rate, a girl of tender years, innocent and guileless, cannot be expected to
brazenly impute a crime so serious as rape to any man if it were not true. 30 Parents would not sacrifice their
own daughter, a child of tender years at that, and subject her to the rigors and humiliation of public trial for
rape, if they were not motivated by an honest desire to have their daughter's transgressor punished accordingly.
31 Hence, the logical conclusion is that no such improper motive exists and that her testimony is worthy of full
faith and credence.
The guilt of accused-appellant having been established beyond reasonable doubt, we discuss now the proper
penalty to be imposed on him.
Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, 32 was the governing law at the
time the accused-appellant committed the rape in question. Under the said law, the penalty of death shall be
imposed when the victim of rape is a child below seven years of age. In this case, as the age of AAA, who was
five (5) years old at the time the rape was committed, was alleged in the information and proven during trial by
the presentation of her birth certificate, which showed her date of birth as January 16, 1991, the death penalty
should be imposed.
However, this Court finds ground for modifying the penalty imposed by the CA. We cannot agree with the CA's
conclusion that the accused-appellant cannot be deemed a minor at the time of the commission of the offense to
entitle him to the privileged mitigating circumstance of minority pursuant to Article 68 (2) 33 of the Revised
Penal Code. When accused appellant testified on March 14, 2002, he admitted that he was 24 years old, which
means that in 1996, he was 18 years of age. As found by the trial court, the rape incident could have taken place
"in any month and date in the year 1996". Since the prosecution was not able to prove the exact date and time
when the rape was committed, it is not certain that the crime of rape was committed on or after he reached 18
years of age in 1996. In assessing the attendance of the mitigating circumstance of minority, all doubts should
be resolved in favor of the accused, it being more beneficial to the latter. In fact, in several cases, this Court has
appreciated this circumstance on the basis of a lone declaration of the accused regarding his age. 34 CAcEaS
Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the penalty next
lower than that prescribed by law shall be imposed, but always in the proper period. However, for purposes of
298
determining the proper penalty because of the privileged mitigating circumstance of minority, the penalty of
death is still the penalty to be reckoned with. 35 Thus, the proper imposable penalty for the accused-appellant is
reclusion perpetua.
It is noted that the Court is granted discretion in awarding damages provided in the Civil Code, in case a crime
is committed. Specifically, Article 2204 of the Civil Code provides that "in crimes, the damages to be
adjudicated may be respectively increased or lessened according to the aggravating or mitigating
circumstances". The issue now is whether the award of damages should be reduced in view of the presence here
of the privileged mitigating circumstance of minority of the accused at the time of the commission of the
offense.
A review of the nature and purpose of the damages imposed on the convicted offender is in order. Article 107 of
the Revised Penal Code defines the term "indemnification", which is included in the civil liability prescribed by
Article 104 of the same Code, as follows:
jurisprudential path on the civil aspect should follow the same direction. Hence, starting with the case at bar, if
the crime of rape is committed or effectively qualified by any of the circumstances under which the death
penalty is authorized by the present amended law, the indemnity for the victim shall be in the increased amount
of not less than P75,000.00. This is not only a reaction to the apathetic societal perception of the penal law, and
the financial fluctuations over time, but also an expression of the displeasure of the Court over the incidence of
heinous crimes against chastity. (Emphasis Supplied) ASTDCH
The Court has had the occasion to rule that moral damages are likewise compensatory in nature. In San Andres
v. Court of Appeals, 37 we held:
. . . Moral damages, though incapable of pecuniary estimation, are in the category of an award designed to
compensate the claimant for actual injury suffered and not to impose a penalty on the wrongdoer. (Emphasis
Supplied)
In another case, this Court also explained:

Art. 107. Indemnification-What is included. Indemnification for consequential damages shall include not
only those caused the injured party, but also those suffered by his family or by a third person by reason of the
crime.
What we call moral damages are treated in American jurisprudence as compensatory damages awarded for
mental pain and suffering or mental anguish resulting from a wrong (25 C.J.S. 815). 38 (Emphasis Supplied)
Relative to civil indemnity, People v. Victor 36 ratiocinated as follows:
The lower court, however, erred in categorizing the award of P50,000.00 to the offended party as being in the
nature of moral damages. We have heretofore explained in People v. Gementiza that the indemnity authorized
by our criminal law as civil liability ex delicto for the offended party, in the amount authorized by the prevailing
judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory
damages in civil law. It is not to be considered as moral damages thereunder, the latter being based on different
jural foundations and assessed by the court in the exercise of sound discretion.
Thus, according to law and jurisprudence, civil indemnity is in the nature of actual and compensatory damages
for the injury caused to the offended party and that suffered by her family, and moral damages are likewise
compensatory in nature. The fact of minority of the offender at the time of the commission of the offense has no
bearing on the gravity and extent of injury caused to the victim and her family, particularly considering the
circumstances attending this case. Here, the accused-appellant could have been eighteen at the time of the
commission of the rape. He was accorded the benefit of the privileged mitigating circumstance of minority
because of a lack of proof regarding his actual age and the date of the rape rather than a moral or evidentiary
certainty of his minority.
One other point of concern has to be addressed. Indictments for rape continue unabated and the legislative
response has been in the form of higher penalties. The Court believes that, on like considerations, the
In any event, notwithstanding the presence of the privileged mitigating circumstance of minority, which
warrants the lowering of the public penalty by one degree, there is no justifiable ground to depart from the
299
jurisprudential trend in the award of damages in the case of qualified rape, considering the compensatory nature
of the award of civil indemnity and moral damages. This was the same stance this Court took in People v.
Candelario, 39 a case decided on July 28, 1999, which did not reduce the award of damages. At that time, the
damages amounted to P75,000.00 for civil indemnity and P50,000.00 for moral damages, even if the public
penalty imposed on the accused was lowered by one degree, because of the presence of the privileged
mitigating circumstance of minority.
The principal consideration for the award of damages, under the ruling in People v. Salome 40 and People v.
Quiachon 41 is the penalty provided by law or imposable for the offense because of its heinousness, not the
public penalty actually imposed on the offender.
Regarding the civil indemnity and moral damages, People v. Salome explained the basis for increasing the
amount of said civil damages as follows:
The Court, likewise, affirms the civil indemnity awarded by the Court of Appeals to Sally in accordance with
the ruling in People v. Sambrano which states: SHTaID
"As to damages, we have held that if the rape is perpetrated with any of the attending qualifying circumstances
that require the imposition of the death penalty, the civil indemnity for the victim shall P75,000.00 . . . Also, in
rape cases, moral damages are awarded without the need proof other than the fact of rape because it is assumed
that the victim has suffered moral injuries entitling her to such an award. However, the trial court's award of
P50,000.00 as moral damages should also be increased to P75,000 pursuant to current jurisprudence on
qualified rape."
It should be noted that while the new law prohibits the imposition of the death penalty, the penalty provided for
by law for a heinous offense is still death and the offense is still heinous. Consequently, the civil indemnity for
the victim is still P75,000.00.
People v. Quiachon also ratiocinates as follows:
With respect to the award of damages, the appellate court, following prevailing jurisprudence, correctly
awarded the following amounts; P75,000.00 as civil indemnity which is awarded if the crime is qualified by
circumstances warranting the imposition of the death penalty; P75,000.00.00 as moral damages because the
victim is assumed to have suffered moral injuries, hence, entitling her to an award of moral damages even
without proof thereof, . . .
Even if the penalty of death is not to be imposed on the appellant because of the prohibition in R.A. No. 9346,
the civil indemnity of P75,000.00 is still proper because, following the ratiocination in People v. Victor, the said
award is not dependent on the actual imposition of the death penalty but on the fact that qualifying
circumstances warranting the imposition of the death penalty attended the commission of the offense. The Court
declared that the award of P75,000.00 shows "not only a reaction to the apathetic societal perception of the
penal law and the financial fluctuations over time but also the expression of the displeasure or the court of the
incidence of heinous crimes against chastity".
The litmus test therefore, in the determination of the civil indemnity is the heinous character of the crime
committed, which would have warranted the imposition of the death penalty, regardless of whether the penalty
actually imposed is reduced to reclusion perpetua.
As to the award of exemplary damages, Article 2229 of the Civil Code provides that exemplary or corrective
damages are imposed in addition to the moral, temperate, liquidated or compensatory damages. Exemplary
damages are not recoverable as a matter of right. The requirements of an award of exemplary damagees are: (1)
they may be imposed by way of example in addition to compensatory damages, and only after the claimant's
right to them has been established; (2) they cannot be recovered as a matter of right, their determination
depending upon the amount of compensatory damages that may be awarded to the claimant; (3) the act must be
accompanied by bad faith or done in a wanton, fraudulent, oppressive or malevolent manner. 42 Since the
compensatory damages, such as the civil indemnity and moral damages, are increased when qualified rape is
committed, the exemplary damages should likewise be increased in accordance with prevailing jurisprudence.
43 aCcSDT
In sum, the increased amount of P75,000.00 each as civil indemnity and moral damages should be maintained.
It is also proper and appropriate that the award of exemplary damages be likewise increased to the amount of
300
P30,000.00 based on the latest jurisprudence on the award of damages on qualified rape. Thus, the CA correctly
awarded P75,000.00 as civil indemnity. However the award of P50,000.00 as moral damages is increased to
P75,000.00 44 and that of P25,000.00 as exemplary damages is likewise increased to P30,000.00. 45
Meanwhile, when accused-appellant was detained at the New Bilibid Prison pending the outcome of his appeal
before this Court, Republic Act (R.A.) No. 9344, the Juvenile Justice and Welfare Act of 2006 took effect on
May 20, 2006. The RTC decision and CA decision were promulgated on January 17, 2003 and July 14, 2005,
respectively. The promulgation of the sentence of conviction of accused-appellant handed down by the RTC
was not suspended as he was about 25 years of age at that time, in accordance with Article 192 of Presidential
Decree (P.D.) No. 603, The Child and Youth Welfare Code 46 and Section 32 of A.M. No. 02-1-18-SC, the Rule
on Juveniles in Conflict with the Law. 47 Accused-appellant is now approximately 31 years of age. He was
previously detained at the Albay Provincial Jail at Legaspi City and transferred to the New Bilibid Prison,
Muntinlupa City on October 13, 2003.
R.A. No. 9344 provides for its retroactive application as follows:
Sec. 68. Children Who Have Been Convicted and are Serving Sentence. Persons who have been convicted
likewise benefit from the retroactive application of this Act. . . .
The aforequoted provision allows the retroactive application of the Act to those who have been convicted and
are serving sentence at the time of the effectivity of this said Act, and who were below the age of 18 years at the
time of the commission of the offense. With more reason, the Act should apply to this case wherein the
conviction by the lower court is still under review. Hence, it is necessary to examine which provisions of R.A.
No. 9344 shall apply to accused-appellant, who was below 18 years old at the time of the commission of the
offense.
Sec. 38 of R.A. No. 9344 provides for the automatic suspension of sentence of a child in conflict with the law,
even if he/she is already 18 years of age or more at the time he/she is found guilty of the offense charged. It
reads:
Sec. 38. Automatic Suspension of Sentence. Once the child who is under eighteen (18) years of age at the
even if the juvenile is already eighteen (18) of age or more at the time of the pronouncement of his/her guilt.
ETDHaC
Upon suspension of sentence and after considering the various circumstances of the child, the court shall
impose the appropriate disposition measures as provided in the Supreme Court on Juvenile in Conflict with the
Law.
The above-quoted provision makes to distinction as to the nature of the offense committed by the child in
conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. 48 The said P.D. and Supreme Court (SC)
Rule provide that the benefit of suspended sentence would not apply to a child in conflict with the law if, among
others, he/she has been convicted of an offense punishable by death, reclusion perpetua or life imprisonment. In
construing Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of statutory construction that
when the law does not distinguish, we should not distinguish. 49 Since R.A. No. 9344 does not distinguish
between a minor who has been convicted of a capital offense and another who has been convicted of a lesser
offense, the Court should also not distinguish and should apply the automatic suspension of sentence to a child
in conflict with the law who has been found guilty of a heinous crime.
Moreover, the legislative intent, to apply to heinous crimes the automatic suspension of sentence of a child in
conflict with the law can be gleaned from the Senate deliberations 50 on Senate Bill No. 1402 (Juvenile Justice
and Delinquency Prevention Act of 2005), the pertinent portion of which is quoted below:
If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have committed a
serious offense, and may have acted with discernment, then the child could be recommended by the Department
of Social Welfare and Development (DSWD), by the Local Council for the Protection of Children (LCPC), or
by my proposed Office of Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare,
301
best interests, and restoration of the child should still be a primordial or primary consideration. Even in heinous
crimes, the intention should still be the child's restoration, rehabilitation and reintegration. . . . (Italics supplied)
Nonetheless, while Sec. 38 of R.A. No. 9344 provides that suspension of sentence can still be applied even if
the child in conflict with the law is already eighteen (18) years of age or more at the time of the pronouncement
of his/her guilt, Sec. 40 of the same law limits the said suspension of sentence until the said child reaches the
maximum age of 21, thus:
Sec. 40. Return of the Child in Conflict with the Law to Court. If the court finds that the objective of the
conflict with the law has willfully failed to comply with the condition of his/her disposition or rehabilitation
program, the child in conflict with the law shall be brought before the court for execution of judgment. SHaIDE
WHEREFORE, the decision of the CA dated July 14, 2005 in CA-G.R. CR-H.C. No. 00717 is hereby
AFFIRMED with the following MODIFICATIONS: (1) the penalty of death imposed on accused-appellant is
reduced to reclusion perpetua; 53 and (2) accused-appellant is ordered to pay the victim the amount of
P75,000.00 and P30,000.00 as moral damages and exemplary damages, respectively. The award of civil
indemnity in the amount of P75,000.00 is maintained. However, the case shall be REMANDED to the court a
quo for appropriate disposition in accordance with Sec. 51 of R.A. 9344.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Corona, Carpio Morales, Chico-Nazario, Velasco, Jr.,
Nachura, Brion, Peralta, Bersamin, Del Catillo and Abad, JJ., concur.
||| (People v. Sarcia, G.R. No. 169641, [September 10, 2009], 615 PHIL 97-131)
If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the
or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of
twenty-one (21) years. (emphasis ours)
To date, accused-appellant is about 31 years of age, and the judgment of the RTC had been promulgated, even
before the effectivity of R.A. No. 9344. Thus, the application of Secs. 38 and 40 to the suspension of sentence is
now moot and academic. 51 However, accused-appellant shall be entitled to appropriate disposition under Sec.
51 of R.A. No. 9344, which provides for the confinement of convicted children as follows:
FIRST DIVISION
[G.R. No. 182239. March 16, 2011.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERMIE M. JACINTO, accused-appellant.
Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. A child in
DECISION
PEREZ, J p:
The civil liability resulting from the commission of the offense is not affected by the appropriate disposition
measures and shall be enforced in accordance with law. 52
302
Once again, we recite the time-honored principle that the defense of alibi cannot prevail over the victim's
positive identification of the accused as the perpetrator of the crime. 1 For it to prosper, the court must be
convinced that there was physical impossibility on the part of the accused to have been at the locus criminis at
the time of the commission of the crime. 2
Nevertheless, a child in conflict with the law, whose judgment of conviction has become final and executory
only after his disqualification from availing of the benefits of suspended sentence on the ground that he/she has
exceeded the age limit of twenty-one (21) years, shall still be entitled to the right to restoration, rehabilitation,
and reintegration in accordance with Republic Act No. 9344, otherwise known as "An Act Establishing a
Comprehensive Juvenile Justice and Welfare System, Creating the Juvenile Justice and Welfare Council under
the Department of Justice, Appropriating Funds Therefor and for Other Purposes."
Convicted for the rape of five-year-old AAA, 3 appellant Hermie M. Jacinto seeks before this Court the reversal
of the judgment of his conviction. 4
CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim being only five
years old. 7
On 15 July 2003, appellant entered a plea of not guilty. 8 During pre-trial, 9 the defense admitted the existence
of the following documents: (1) birth certificate of AAA, showing that she was born on 3 December 1997; (2)
police blotter entry on the rape incident; and (3) medical certificate, upon presentation of the original or upon
identification thereof by the physician.
Trial ensued with the prosecution and the defense presenting witnesses to prove their respective versions of the
story.
Evidence for the Prosecution
The testimonies of AAA, 10 her father FFF, 11 and rebuttal witness Julito Apiki [Julito] 12 may be summarized
in the following manner: TCAScE
The Facts
In an Information dated 20 March 2003 5 filed with the Regional Trial Court and docketed as Criminal Case
No. 1679-13-141[1], 6 appellant was accused of the crime of RAPE allegedly committed as follows:
That on or about the 28th day of January, 2003 at about 7:00 o'clock in the evening more or less, at barangay
xxx, municipality of xxx, province of xxx and within the jurisdiction of this Honorable Court, [Hermie M.
Jacinto], with lewd design did then and there willfully, unlawfully and feloniously had carnal knowledge with
one AAA, a five-year old minor child.
FFF and appellant have been neighbors since they were born. FFF's house is along the road. That of appellant
lies at the back approximately 80 meters from FFF. To access the road, appellant has to pass by FFF's house, the
frequency of which the latter describes to be "every minute [and] every hour." Also, appellant often visits FFF
because they were close friends. He bore no grudge against appellant prior to the incident. 13
AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time playing at the
basketball court near her house, fetching water, and passing by her house on his way to the road. She and
appellant used to be friends until the incident. 14
At about past 6 o'clock in the evening of 28 January 2003, FFF sent his eight-year-old daughter CCC to the
store of Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC returned without AAA, FFF was not
alarmed. He thought she was watching television at the house of her aunt Rita Lingcay [Rita]. 15
303
Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay Rum. 16 At the store, he
saw appellant place AAA on his lap. 17 He was wearing sleeveless shirt and a pair of short pants. 18 All of them
left the store at the same time. 19 Julito proceeded to the house of Rita to watch television, while appellant, who
held the hand of AAA, went towards the direction of the "lower area or place." 20
On that same evening, FFF and AAA proceeded to the police station to have the incident blottered. 54 FFF also
had AAA undergo a physical check up at the municipal health center. 55 Dr. Bernardita M. Gaspar, M.D., Rural
Health Physician, issued a medical certificate 56 dated 29 January 2003. It reads:
Injuries seen are as follows:

AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants 21 when he held her hand
while on the road near the store. 22 They walked towards the rice field near the house of spouses Alejandro and
Gloria Perocho [the Perochos]. 23 There he made her lie down on harrowed ground, removed her panty and
boxed her on the chest. 24 Already half-naked from waist down, 25 he mounted her, and, while her legs were
pushed apart, pushed his penis into her vagina and made a push and pull movement. 26 She felt pain and cried.
27 Afterwards, appellant left and proceeded to the Perochos. 28 She, in turn, went straight home crying. 29
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.

FFF heard AAA crying and calling his name from downstairs. 30 She was without slippers. 31 He found her
face greasy. 32 There was mud on her head and blood was oozing from the back of her head. 33 He checked for
any injury and found on her neck a contusion that was already turning black. 34 She had no underwear on and
he saw white substance and mud on her vagina. 35 AAA told him that appellant brought her from the store 36 to
the grassy area at the back of the house of the Perochos; 37 that he threw away her pair of slippers, removed her
panty, choked her and boxed her breast; 38 and that he proceeded thereafter to the Perochos. 39
True enough, FFF found appellant at the house of the Perochos. 40 He asked the appellant what he did to AAA.
41 Appellant replied that he was asked to buy rum at the store and that AAA followed him. 42 FFF went home
to check on his daughter, 43 afterwhich, he went back to appellant, asked again, 44 and boxed him. 45
3. Hematoma over the left upper arm, lateral area
4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and whitish mucoid-like material
Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at the house of Rita.
46 AAA and her mother MMM arrived. 47 AAA was crying. 48 Julito pitied her, embraced her, and asked what
happened to her, to which she replied that appellant raped her. 49 Julito left and found appellant at the Perochos.
50 Julito asked appellant, "Bads, did you really rape the child, the daughter of [MMM]?" but the latter ignored
his question. 51 Appellant's aunt, Gloria, told appellant that the policemen were coming to which the appellant
responded, "Wait a minute because I will wash the dirt of my elbow (sic) and my knees." 52 Julito did found the
elbows and knees of appellant with dirt. 53
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 o'clock and 9 o'clock position
304
Impression aETDIc
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar, 57 AAA submitted herself to another examination at the provincial
hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III of the provincial hospital,
attended to her and issued a medico-legal certificate dated 29 January 2003, 58 the pertinent portion of which
reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there is no bleeding in
this time of examination. (sic) 59
Evidence for the Defense
Interposing the defense of alibi, appellant gave a different version of the story. To corroborate his testimony,
Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm that he was at the Perochos at
the time of the commission of the crime. 60 Luzvilla even went further to state that she actually saw Julito, not
appellant, pick up AAA on the road. 61 In addition, Antonia Perocho [Antonia], sister-in-law of appellant's aunt,
Gloria, 62 testified on the behavior of Julito after the rape incident was revealed. 63
Appellant claimed that he lives with his aunt, not with his parents whose house stands at the back of FFF's
house. 64 He denied that there was a need to pass by the house of FFF in order to access the road or to fetch
water. 65 He, however, admitted that he occasionally worked for FFF, 66 and whenever he was asked to buy
something from the store, AAA always approached him. 67
At about 8 o'clock in the morning of 28 January 2003, appellant went to the Perochos to attend a birthday party.
At 6:08 in the evening, while the visitors, including appellant and his uncle Alejandro Perocho [Alejandro],
were gathered together in a drinking session, appellant's uncle sent him to the store to buy Tanduay Rum. Since
the store is only about 20 meters from the house, he was able to return after three (3) minutes. He was certain of
the time because he had a watch. 68
Appellant's aunt, Gloria, the lady of the house, confirmed that he was in her house attending the birthday party;
and that appellant went out between 6 and 7 in the evening to buy a bottle of Tanduay from the store. She
recalled that appellant was back around five (5) minutes later. She also observed that appellant's white shorts
and white sleeveless shirt were clean. 69
At 6:30 in the evening, 70 Luzvilla, who was also at the party, saw appellant at the kitchen having a drink with
his uncle Alejandro and the rest of the visitors. 71 She went out to relieve herself at the side of the tree beside
the road next to the house of the Perochos. 72 From where she was, she saw Julito, who was wearing black
short pants and black T-shirt, carry AAA. 73 AAA's face was covered and she was wiggling. 74 This did not
alarm her because she thought it was just a game. 75 Meanwhile, appellant was still in the kitchen when she
returned. 76 Around three (3) minutes later, Luzvilla saw Julito, now in a white T-shirt, 77 running towards the
house of Rita. 78 AAA was slowly following behind. 79 Luzvilla followed them. 80 Just outside the house,
Julito embraced AAA and asked what the appellant did to her. 81 The child did not answer. 82
Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified that appellant
was twice boxed by FFF. According to her, FFF tapped the left shoulder of the appellant, boxed him, and left.
FFF came in the second time and again boxed appellant. This time, he had a bolo pointed at appellant.
Appellant's uncle Alejandro, a barangay councilor, and another Civilian Voluntary Organization (CVO) member
admonished FFF. 83
On sur-rebuttal, Antonia testified that, at 7 o'clock in the evening, she was watching the television along with
other people at the house of Rita. Around 7:10, Julito, who was wearing only a pair of black short pants without
a shirt on, entered the house drunk. He paced back and forth. After 10 minutes, AAA came in crying. Julito
tightly embraced AAA and asked her what happened. AAA did not answer. Upon Antonia's advice, Julito
released her and went out of the house. 84
305
Appellant further testified that at past 7 o'clock in the evening, FFF arrived, pointed a finger at him, brandished
a bolo, and accused him of molesting AAA. FFF left but returned at around 8 o'clock in the evening. This time,
he boxed appellant and asked again why he molested his daughter. 85
On 26 March 2004, the Regional Trial Court rendered its decision, 86 the dispositive portion of which reads:
WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape committed upon a
5-year old girl, the court sentences him to death and orders him to pay [AAA] P75,000.000 as rape indemnity
and P50,000.00 as moral damages. With costs. 87
The defense moved to reopen trial for reception of newly discovered evidence stating that appellant was
apparently born on 1 March 1985 and that he was only seventeen (17) years old when the crime was committed
on 28 January 2003. 88 The trial court appreciated the evidence and reduced the penalty from death to reclusion
perpetua. 89 Thus: TCSEcI
as maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim in the sum of P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages and to pay the costs. 91
On 19 November 2007, the Court of Appeals gave due course to the appellant's Notice of Appeal. 92 This Court
required the parties to simultaneously file their respective supplemental briefs. 93 Both parties manifested that
they have exhaustively discussed their positions in their respective briefs and would no longer file any
supplement. 94
Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY ERRED IN
CONVICTING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF RAPE"
95 by invoking the principle that "if the inculpatory facts and circumstances are capable of two or more
reasonable explanations, one of which is consistent with the innocence of the accused and the other with his
guilt, then the evidence does not pass the test of moral certainty and will not suffice to support a conviction." 96
Our Ruling
WHEREFORE, the judgment of the court imposing the death penalty upon the accused is amended in order to
consider the privileged mitigating circumstance of minority. The penalty impos[a]ble upon the accused,
therefore[,] is reduced to reclusion perpetua. . . .
Appealed to this Court, the case was transferred to the Court of Appeals for its disposition in view of the ruling
in People v. Mateo and the Internal Rules of the Supreme Court allowing an intermediate review by the Court of
Appeals of cases where the penalty imposed is death, reclusion perpetua, or life imprisonment. 90
On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the following
MODIFICATIONS:
We sustain the judgment of conviction.
In the determination of the innocence or guilt of a person accused of rape, we consider the three wellentrenched principles:
(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the accused,
though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape 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 cannot be allowed to draw strength from
the weakness of the evidence for the defense. 97
. . . that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and one (1) day to
twelve (12) years of prision mayor, as minimum, to seventeen (17) and four (4) months of reclusion temporal,
306
Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient to convict the
accused. 98 More so, when the testimony is supported by the medico-legal findings of the examining physician.
99
Further, the defense of alibi cannot prevail over the victim's positive identification of the perpetrator of the
crime, 100 except when it is established that it was physically impossible for the accused to have been at the
locus criminis at the time of the commission of the crime. 101
A He mounted me.
Q When Hermie mounted you, was he facing you?
A Yes. ETDHaC
I
Q When he mounted you what did he do, did he move?
A man commits rape by having carnal knowledge of a child under twelve (12) years of age even in the absence
of any of the following circumstances: (a) through force, threat or intimidation; (b) when the offended party is
deprived of reason or otherwise unconscious; or (c) by means of fraudulent machination or grave abuse of
authority. 102
A He moved his ass, he made a push and pull movement.
Q When he made a push and pull movement, how were your legs positioned?
That the crime of rape has been committed is certain. The vivid narration of the acts culminating in the insertion
of appellant's organ into the vagina of five-year-old AAA and the medical findings of the physicians sufficiently
proved such fact.
A They were apart.
AAA testified:
Q Who pushed them apart?
PROS. OMANDAM:
A Hermie.
xxx xxx xxx
Q Did Hermie push anything at you?
Q You said Hermie laid you on the ground, removed your panty and boxed you, what else did he do to you?
A Yes.
307
Q What was that?
A His penis.
more so a minor, says so, she says in effect all that is essential to show that rape was committed. 104
Significantly, youth and immaturity are normally badges of truth and honesty. 105
Further, the medical findings and the testimony of Dr. Micabalo 106 revealed that the hymenal lacerations at 5
o'clock and 9 o'clock positions could have been caused by the penetration of an object; that the redness of the
introitus could have been "the result of the repeated battering of the object;" and that such object could have
been an erect male organ. 107
Q Where did he push his penis?
A To my vagina.
The credible testimony of AAA corroborated by the physician's finding of penetration conclusively established
the essential requisite of carnal knowledge. 108
Q Was it painful?
II
A Yes.
The real identity of the assailant and the whereabouts of the appellant at the time of the commission of the crime
are now in dispute.
Q What was painful?
The defense would want us to believe that it was Julito who defiled AAA, and that appellant was elsewhere
when the crime was committed. 109
A My vagina.
Q Did you cry?
We should not, however, overlook the fact that a victim of rape could readily identify her assailant, especially
when he is not a stranger to her, considering that she could have a good look at him during the commission of
the crime. 110 AAA had known appellant all her life. Moreover, appellant and AAA even walked together from
the road near the store to the situs criminus 111 that it would be impossible for the child not to recognize the
man who held her hand and led her all the way to the rice field.
A Yes. 103
We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA.
The straightforward and consistent answers to the questions, which were phrased and re-phrased in order to test
that AAA well understood the information elicited from her, said it all she had been raped. When a woman,
308
The certainty of the child, unusually intelligent for one so young, that it was accused, whom she called "kuya"
and who used to play basketball and fetch water near their house, and who was wearing a sleeveless shirt and
shorts at the time he raped her, was convincing and persuasive. The defense attempted to impute the crime to
someone else one Julito Apiki, but the child, on rebuttal, was steadfast and did not equivocate, asserting that
it was accused who is younger, and not Julito, who is older, who molested her. 112
In a long line of cases, this Court has consistently ruled that the determination by the trial court of the credibility
of the witnesses deserves full weight and respect considering that it has "the opportunity to observe the
witnesses' manner of testifying, their furtive glances, calmness, sighs and the scant or full realization of their
oath," 113 unless it is shown that material facts and circumstances have been "ignored, overlooked,
misconstrued, or misinterpreted." 114
Further, as correctly observed by the trial court:
. . . His and his witness' attempt to throw the court off the track by imputing the crime to someone else is . . . a
vain exercise in view of the private complainant's positive identification of accused and other corroborative
circumstances. Accused also admitted that on the same evening, Julito Apiki, the supposed real culprit, asked
him "What is this incident, Pare?", thus corroborating the latter's testimony that he confronted accused after
hearing of the incident from the child." 115 ITcCSA
On the other hand, we cannot agree with the appellant that the trial court erred in finding his denial and alibi
weak despite the presentation of witnesses to corroborate his testimony. Glaring inconsistencies were all over
their respective testimonies that even destroyed the credibility of the appellant's very testimony.
Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy Tanduay; that he gave
the bottle to his uncle; and that they had already been drinking long before he bought Tanduay at the store.
117 It was actually the fish vendor, not her husband, who asked appellant to buy Tanduay. 118 Further, the
drinking session started only after the appellant's errand to the store. 119
Neither was the testimony of Luzvilla credible enough to deserve consideration.
Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is contrary to Gloria's
statement that her husband was at work.
Luzvilla's testimony is likewise inconsistent with that of sur-rebuttal witness Antonia Perocho. Antonia recalled
that Julito arrived without a shirt on. This belied Luzvilla's claim that Julito wore a white shirt on his way to the
house of Rita. In addition, while both the prosecution, as testified to by AAA and Julito, and the defense, as
testified to by Gloria, were consistent in saying that appellant wore a sleeveless shirt, Luzvilla's recollection
differ in that Julito wore a T-shirt (colored black and later changed to white), and, thus, a short-sleeved shirt.
Also, contrary to Luzvilla's story that she saw AAA walking towards Rita's house three (3) minutes after she
returned to the Perochos at 6:38 in the evening, Antonia recalled that AAA arrived at the house of Rita at 7:30.
In this respect, we find the trial court's appreciation in order. Thus:
. . . . The child declared that after being raped, she went straight home, crying, to tell her father that Hermie had
raped her. She did not first drop into the house of Lita Lingkay to cry among strangers who were watching TV,
as Luzvilla Balucan would have the court believe. When the child was seen at the house of Lita Lingkay by
Julito Apiki and Luzvilla Balucan, it was only later, after she had been brought there by her mother Brenda so
that Lita Lingkay could take a look at her just as Julito Apiki said. 120
Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same having been offered
preferably by disinterested witnesses. The defense failed thuswise. Its witnesses cannot qualify as such, "they
being related or were one way or another linked to each other." 121
This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On cross-examination,
she revealed that her husband was not around before, during, and after the rape incident because he was then at
work. 116 He arrived from work only after FFF came to their house for the second time and boxed appellant.
309
Even assuming for the sake of argument that we consider the corroborations on his whereabouts, still, the
defense of alibi cannot prosper.
We reiterate, time and again, that the court must be convinced that it would be physically impossible for the
accused to have been at the locus criminis at the time of the commission of the crime. 122
Physical impossibility refers to distance and the facility of access between the situs criminis and the location of
the accused when the crime was committed. He must demonstrate that he was so far away and could not have
been physically present at the scene of the crime and its immediate vicinity when the crime was committed. 123
As in the cases above cited, the claim of the defense witnesses that appellant never left their sight, save from the
5-minute errand to the store, is contrary to ordinary human experience. Moreover, considering that the farmland
where the crime was committed is just behind the house of the Perochos, it would take appellant only a few
minutes to bring AAA from the road near the store next to the Perochos down the farmland and consummate the
crime. As correctly pointed out by the Court of Appeals, appellant could have committed the rape after buying
the bottle of Tanduay and immediately returned to his uncle's house. 129 Unfortunately, the testimonies of his
corroborating witnesses even bolstered the fact that he was within the immediate vicinity of the scene of the
crime. 130
Clearly, the defense failed to prove that it was physically impossible for appellant to have been at the time and
place of the commission of the crime.
In People v. Paraiso, 124 the distance of two thousand meters from the place of the commission of the crime
was considered not physically impossible to reach in less than an hour even by foot. 125 Inasmuch as it would
take the accused not more than five minutes to rape the victim, this Court disregarded the testimony of the
defense witness attesting that the accused was fast asleep when she left to gather bamboo trees and returned
several hours after. She could have merely presumed that the accused slept all throughout. 126
In People v. Antivola, 127 the testimonies of relatives and friends corroborating that of the appellant that he was
in their company at the time of the commission of the crime were likewise disregarded by this Court in the
following manner:
Ruben Nicolas, the appellant's part-time employer, and Marites Capalad, the appellant's sister-in-law and coworker, in unison, vouched for the appellant's physical presence in the fishpond at the time Rachel was raped. It
is, however, an established fact that the appellant's house where the rape occurred, was a stone's throw away
from the fishpond. Their claim that the appellant never, left their sight the entire afternoon of December 4, 1997
is unacceptable. It was impossible for Marites to have kept an eye on the appellant for almost four hours, since
she testified that she, too, was very much occupied with her task of counting and recording the fishes being
harvested. Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the fishpond, could not have
focused his entire attention solely on the appellant. It is, therefore, not farfetched that the appellant easily
sneaked out unnoticed, and along the way inveigled the victim, brought her inside his house and ravished her,
then returned to the fishpond as if he never left. 128 (Emphasis supplied.) EaISDC
All considered, we find that the prosecution has sufficiently established the guilt of the appellant beyond
reasonable doubt.
III
In the determination of the imposable penalty, the Court of Appeals correctly considered Republic Act No. 9344
(Juvenile Justice and Welfare Act of 2006) despite the commission of the crime three (3) years before it was
enacted on 28 April 2006.
We recognize its retroactive application following the rationale elucidated in People v. Sarcia: 131
[Sec. 68 of Republic Act No. 9344] 132 allows the retroactive application of the Act to those who have been
convicted and are serving sentence at the time of the effectivity of this said Act, and who were below the age of
18 years at the time of the commission of the offense. With more reason, the Act should apply to this case
wherein the conviction by the lower court is still under review. 133 (Emphasis supplied.)
310
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18) years of age
from criminal liability, unless the child is found to have acted with discernment, in which case, "the appropriate
proceedings" in accordance with the Act shall be observed. 134
We determine discernment in this wise:
Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful act. 135
Such capacity may be known and should be determined by taking into consideration all the facts and
circumstances afforded by the records in each case. 136
The following, however, calls for the reduction of the penalty: (1) the prohibition against the imposition of the
penalty of death in accordance with Republic Act No. 9346; 142 and (2) the privileged mitigating circumstance
of minority of the appellant, which has the effect of reducing the penalty one degree lower than that prescribed
by law, pursuant to Article 68 of the Revised Penal Code. 143
Relying on People v. Bon, 144 the Court of Appeals excluded death from the graduation of penalties provided in
Article 71 of the Revised Penal Code. 145 Consequently, in its appreciation of the privileged mitigating
circumstance of minority of appellant, it lowered the penalty one degree from reclusion perpetua and sentenced
appellant to suffer the indeterminate penalty of six (6) years and one (1) day to twelve (12) years of prision
mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, in its medium period, as
maximum. 146
We differ.
. . . The surrounding circumstances must demonstrate that the minor knew what he was doing and that it was
wrong. 137 Such circumstance includes the gruesome nature of the crime and the minor's cunning and
shrewdness. 138
In a more recent case, 147 the Court En Banc, through the Honorable Justice Teresita J. Leonardo-de Castro,
clarified: IDCcEa
In the present case, we agree with the Court of Appeals that: "(1) choosing an isolated and dark place to
perpetrate the crime, to prevent detection[;] and (2) boxing the victim . . ., to weaken her defense" are indicative
of then seventeen (17) year-old appellant's mental capacity to fully understand the consequences of his unlawful
action. 139
Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the penalty next
lower than that prescribed by law shall be imposed, but always in the proper period. However, for purposes of
determining the proper penalty because of the privileged mitigating circumstance of minority, the penalty of
death is still the penalty to be reckoned with. Thus, the proper imposable penalty for the accused-appellant is
reclusion perpetua. 148 (Emphasis supplied.)
Nonetheless, the corresponding imposable penalty should be modified.
The birth certificate of AAA 140 shows that she was born on 3 December 1997. Considering that she was only
five (5) years old when appellant defiled her on 28 January 2003, the law prescribing the death penalty when
rape is committed against a child below seven (7) years old 141 applies.
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:
311
The litmus test . . . in the determination of the civil indemnity is the heinous character of the crime committed,
which would have warranted the imposition of the death penalty, regardless of whether the penalty actually
imposed is reduced to reclusion perpetua. 149
Likewise, the fact that the offender was still a minor at the time he committed the crime has no bearing on the
gravity and extent of injury suffered by the victim and her family. 150 The respective awards of civil indemnity
and moral damages in the amount of P75,000.00 each are, therefore, proper. 151
Accordingly, despite the presence of the privileged mitigating circumstance of minority which effectively
lowered the penalty by one degree, we affirm the damages awarded by the Court of Appeals in the amount of
P75,000.00 as civil indemnity and P75,000.00 as moral damages. And, consistent with prevailing jurisprudence,
152 the amount of exemplary damages should be increased from P25,000.00 to P30,000.00.
Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of the Period of
Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law notwithstanding
that he/she has reached the age of majority at the time the judgment of conviction is pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. Once the child who is under eighteen (18) years of age at the
even if the juvenile is already eighteen (18) years of age or more at the time of the pronouncement of his/her
guilt. (Emphasis supplied.)
Applying Declarador v. Gubaton, 153 which was promulgated on 18 August 2006, the Court of Appeals held
that, consistent with Article 192 of Presidential Decree No. 603, as amended, 154 the aforestated provision does
not apply to one who has been convicted of an offense punishable by death, reclusion perpetua or life
imprisonment. 155
Meanwhile, on 10 September 2009, this Court promulgated the decision in Sarcia, 156 overturning the ruling in
Gubaton. Thus:
The . . . provision makes no distinction as to the nature of the offense committed by the child in conflict with the
law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D. and Supreme Court (SC) Rule provide that
the benefit of suspended sentence would not apply to a child in conflict with the law if, among others, he/she
has been convicted of an offense punishable by death, reclusion perpetua or life imprisonment. In construing
Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of statutory construction that when the law
does not distinguish, we should not distinguish. Since R.A. No. 9344 does not distinguish between a minor who
has been convicted of a capital offense and another who has been convicted of a lesser offense, the Court should
also not distinguish and should apply the automatic suspension of sentence to a child in conflict with the law
who has been found guilty of a heinous crime. 157
The legislative intent reflected in the Senate deliberations 158 on Senate Bill No. 1402 (Juvenile Justice and
Delinquency Prevention Act of 2005) further strengthened the new position of this Court to cover heinous
crimes in the application of the provision on the automatic suspension of sentence of a child in conflict with the
law. The pertinent portion of the deliberation reads:
If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have committed a
serious offense, and may have acted with discernment, then the child could be recommended by the Department
of Social Welfare and Development (DSWD), by the Local Council for the Protection of Children (LCPC), or
by [Senator Miriam Defensor-Santiago's] proposed Office of Juvenile Welfare and Restoration to go through a
judicial proceeding; but the welfare, best interests, and restoration of the child should still be a primordial or
primary consideration. Even in heinous crimes, the intention should still be the child's restoration, rehabilitation
and reintegration. . . . (Italics supplied in Sarcia.) 159
xxx xxx xxx
312
On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in Conflict with the Law,
which reflected the same position. 160 ISaCTE
These developments notwithstanding, we find that the benefits of a suspended sentence can no longer apply to
appellant. The suspension of sentence lasts only until the child in conflict with the law reaches the maximum
age of twenty-one (21) years. 161 Section 40 162 of the law and Section 48 163 of the Rule are clear on the
matter. Unfortunately, appellant is now twenty-five (25) years old.
and (2) appellant is ordered to pay the victim P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P30,000.00 as exemplary damages. The case is hereby REMANDED to the court of origin for its appropriate
action in accordance with Section 51 of Republic Act No. 9344.
SO ORDERED.
Corona, C.J., Velasco, Jr., Leonardo-de Castro and Del Castillo, JJ., concur
||| (People v. Jacinto, G.R. No. 182239, [March 16, 2011], 661 PHIL 224-257)
Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the welfare of a child in
conflict with the law should extend even to one who has exceeded the age limit of twenty-one (21) years, so
long as he/she committed the crime when he/she was still a child. The offender shall be entitled to the right to
restoration, rehabilitation and reintegration in accordance with the Act in order that he/she is given the chance to
live a normal life and become a productive member of the community. The age of the child in conflict with the
law at the time of the promulgation of the judgment of conviction is not material. What matters is that the
offender committed the offense when he/she was still of tender age.
SECOND DIVISION
[G.R. No. 168546. July 23, 2008.]
Thus, appellant may be confined in an agricultural camp or any other training facility in accordance with Sec.
51 of Republic Act No. 9344. 164
Sec. 51.Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. A child in
Following the pronouncement in Sarcia, 165 the case shall be remanded to the court of origin to effect
appellant's confinement in an agricultural camp or other training facility.
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC No. 00213
finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape is AFFIRMED with the
following MODIFICATIONS: (1) the death penalty imposed on the appellant is reduced to reclusion perpetua;
MICHAEL PADUA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
QUISUMBING, J p:
This petition for review assails the Decision 1 dated April 19, 2005 and Resolution 2 dated June 14, 2005, of the
Court of Appeals in CA-G.R. SP No. 86977 which had respectively dismissed Michael Padua's petition for
certiorari and denied his motion for reconsideration. Padua's petition for certiorari before the Court of Appeals
assailed the Orders dated May 11, 2004 3 and July 28, 2004 4 of the Regional Trial Court (RTC), Branch 168,
Pasig City, which had denied his petition for probation. TAcDHS
The facts, culled from the records, are as follows:
313
On June 16, 2003, petitioner Michael Padua and Edgar Allan Ubalde were charged before the RTC, Branch 168,
Pasig City of violating Section 5, 5 Article II of Republic Act No. 9165, 6 otherwise known as the
"Comprehensive Dangerous Drugs Act of 2002", for selling dangerous drugs. 7 The Information reads:
The Prosecution, through the undersigned Public Prosecutor, charges Edgar Allan Ubalde y Velchez a.k.a.
"Allan" and Michael Padua y Tordel a.k.a. "Mike", with the crime of violation of Sec. 5, Art. II, Republic Act
No. 9165 in relation to R.A. [No.] 8369, Sec. 5 par. (a) and (i), committed as follows:
On or about June 6, 2003, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, Edgar
Allan Ubalde y Velchez and Michael Padua y Tordel, a minor, seventeen (17) years old, conspiring and
confederating together and both of them mutually helping and aiding one another, not being lawfully authorized
to sell any dangerous drug, did then and there willfully, unlawfully and feloniously sell, deliver and give away
to PO1 Roland A. Panis, a police poseur-buyer, one (1) folded newsprint containing 4.86 grams of dried
marijuana fruiting tops, which was found positive to the tests for marijuana, a dangerous drug, in violation of
the said law.
Contrary to law. 8
When arraigned on October 13, 2003, Padua, assisted by his counsel de oficio, entered a plea of not guilty. 9
During the pre-trial conference on February 2, 2004, however, Padua's counsel manifested that his client was
willing to withdraw his plea of not guilty and enter a plea of guilty to avail of the benefits granted to first-time
offenders under Section 70 10 of Rep. Act No. 9165. The prosecutor interposed no objection. 11 Thus, the RTC
on the same date issued an Order 12 stating that the former plea of Padua of not guilty was considered
withdrawn. Padua was re-arraigned and pleaded guilty. Hence, in a Decision 13 dated February 6, 2004, the
RTC found Padua guilty of the crime charged:
In view of the foregoing, the Court finds accused Michael Padua y Tordel guilty of [v]iolation of Sec. 5 Art. II
of R.A. No. 9165 in relation to R.A. No. 8369 Sec. 5 par. (a) and (i) thereof, and therefore, sentences him to
suffer an indeterminate sentence of six (6) years and one (1) day of Prision Mayor as minimum to seventeen
(17) years and four (4) months of reclusion temporal as maximum and a fine of Five Hundred Thousand Pesos
(P500,000.00).
No subsidiary imprisonment, however, shall be imposed should [the] accused fail to pay the fine pursuant to
Art. 39 par. 3 of the Revised Penal Code. aCHDST
SO ORDERED. 14
Padua subsequently filed a Petition for Probation 15 dated February 10, 2004 alleging that he is a minor and a
first-time offender who desires to avail of the benefits of probation under Presidential Decree No. 968 16 (P.D.
No. 968), otherwise known as "The Probation Law of 1976" and Section 70 of Rep. Act No. 9165. He further
alleged that he possesses all the qualifications and none of the disqualifications under the said laws.
The RTC in an Order 17 dated February 10, 2004 directed the Probation Officer of Pasig City to conduct a PostSentence Investigation and submit a report and recommendation within 60 days from receipt of the order. The
City Prosecutor was also directed to submit his comment on the said petition within five days from receipt of
the order.
On April 6, 2004, Chief Probation and Parole Officer Josefina J. Pasana submitted a Post-Sentence Investigation
Report to the RTC recommending that Padua be placed on probation. 18
However, on May 11, 2004, public respondent Pairing Judge Agnes Reyes-Carpio issued an Order denying the
Petition for Probation on the ground that under Section 24 19 of Rep. Act No. 9165, any person convicted of
drug trafficking cannot avail of the privilege granted by the Probation Law. The court ruled thus:
314
Before this Court now is the Post-Sentence Investigation Report (PSIR) on minor Michael Padua y Tordel
prepared by Senior Parole and Probation Officer Teodoro Villaverde and submitted by the Chief of the Pasig
City Parole and Probation Office, Josefina J. Pasana.
In the aforesaid PSIR, Senior PPO Teodoro Villaverde recommended that minor Michael Padua y Tordel be
placed on probation, anchoring his recommendation on Articles 189 and 192 of P.D. 603, otherwise known as
the Child and Welfare Code, as amended, which deal with the suspension of sentence and commitment of
youthful offender. Such articles, therefore, do not find application in this case, the matter before the Court being
an application for probation by minor Michael Padua y Tordel and not the suspension of his sentence.
Padua filed a motion for reconsideration of the order but the same was denied on July 28, 2004. He filed a
petition for certiorari under Rule 65 with the Court of Appeals assailing the order, but the Court of Appeals, in a
Decision dated April 19, 2005, dismissed his petition. The dispositive portion of the decision reads:
WHEREFORE, in view of the foregoing, the petition is hereby DENIED for lack of merit and ordered
DISMISSED.
SO ORDERED. 21
On the other hand, Section 70 is under Article VIII of R.A. 9165 which deals with the Program for Treatment
and Rehabilitation of Drug Dependents. Sections 54 to 76, all under Article VIII of R.A. 9165 specifically refer
to violations of either Section 15 or Section 11. Nowhere in Article VIII was [v]iolation of Section 5 ever
mentioned.
More importantly, while the provisions of R.A. 9165, particularly Section 70 thereof deals with Probation or
Community Service for First-Time Minor Offender in Lieu of Imprisonment, the Court is of the view and so
holds that minor Michael Padua y Tordel who was charged and convicted of violating Section 5, Article II, R.A.
9165, cannot avail of probation under said section in view of the provision of Section 24 which is hereunder
quoted: HSCcTD
"Sec. 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. Any person convicted
for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of
the privilege granted by the Probation Law or Presidential Decree No. 968, as amended." (underlining supplied)
WHEREFORE, premises considered, the Petition for Probation filed by Michael Padua y Tord[e]l should be, as
it is hereby DENIED.
SO ORDERED. 20
Padua filed a motion for reconsideration of the Court of Appeals decision but it was denied. Hence, this petition
where he raises the following issues: TAEcSC
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING THE DENIAL OF THE
PETITION FOR PROBATION WHICH DEPRIVED PETITIONER'S RIGHT AS A MINOR UNDER
ADMINISTRATIVE ORDER NO. [02-1-18-SC] OTHERWISE KNOWN AS [THE] RULE ON JUVENILES
IN CONFLICT WITH THE LAW.
II.
WHETHER OR NOT [THE] ACCUSED['S] RIGHT [TO BE RELEASED UNDER RECOGNIZANCE] HAS
BEEN VIOLATED OR DEPRIVED IN THE LIGHT OF R.A. 9344 OTHERWISE KNOWN AS AN ACT
ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE
JUVENILE JUSTICE AND WELFARE COUNCIL UNDER DEPARTMENT OF JUSTICE APPROPRIATING
FUNDS THEREFOR AND OTHER PURPOSES. 22
315
The Office of the Solicitor General (OSG), representing public respondent, opted to adopt its Comment 23 as its
Memorandum. In its Comment, the OSG countered that
I.
THE TRIAL COURT AND THE COURT OF APPEALS HAVE LEGAL BASIS IN APPLYING SECTION 24,
ARTICLE II OF R.A. 9165 INSTEAD OF SECTION 70, ARTICLE VIII OF THE SAME LAW.
II.
SECTION 32 OF A.M. NO. 02-1-18-SC OTHERWISE KNOWN AS THE "RULE ON JUVENILES IN

CONFLICT WITH THE LAW" HAS NO APPLICATION TO THE INSTANT CASE. 24
Simply, the issues are: (1) Did the Court of Appeals err in dismissing Padua's petition for certiorari assailing the
trial court's order denying his petition for probation? (2) Was Padua's right under Rep. Act No. 9344, 25 the
"Juvenile Justice and Welfare Act of 2006", violated? and (3) Does Section 32 26 of A.M. No. 02-1-18-SC
otherwise known as the "Rule on Juveniles in Conflict with the Law" have application in this case? ADEacC
As to the first issue, we rule that the Court of Appeals did not err in dismissing Padua's petition for certiorari.
For certiorari to prosper, the following requisites must concur: (1) the writ is directed against a tribunal, a board
or any officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without
or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3)
there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. 27
"Without jurisdiction" means that the court acted with absolute lack of authority. There is "excess of
jurisdiction" when the court transcends its power or acts without any statutory authority. "Grave abuse of
discretion" implies such capricious and whimsical exercise of judgment as to be equivalent to lack or excess of
jurisdiction. In other words, power is exercised in an arbitrary or despotic manner by reason of passion,
prejudice, or personal hostility, and such exercise is so patent or so gross as to amount to an evasion of a
positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in contemplation of law.
28
A review of the orders of the RTC denying Padua's petition for probation shows that the RTC neither acted
without jurisdiction nor with grave abuse of discretion because it merely applied the law and adhered to
principles of statutory construction in denying Padua's petition for probation.
Padua was charged and convicted for violation of Section 5, Article II of Rep. Act No. 9165 for selling
dangerous drugs. It is clear under Section 24 of Rep. Act No. 9165 that any person convicted of drug trafficking
cannot avail of the privilege of probation, to wit:
SEC. 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. Any person convicted
for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of
the privilege granted by the Probation Law or Presidential Decree No. 968, as amended. (Emphasis supplied.)
The law is clear and leaves no room for interpretation. Any person convicted for drug trafficking or pushing,
regardless of the penalty imposed, cannot avail of the privilege granted by the Probation Law or P.D. No. 968.
The elementary rule in statutory construction is that when the words and phrases of the statute are clear and
unequivocal, their meaning must be determined from the language employed and the statute must be taken to
mean exactly what it says. 29 If a statute is clear, plain and free from ambiguity, it must be given its literal
meaning and applied without attempted interpretation. This is what is known as the plain-meaning rule or verba
legis. It is expressed in the maxim, index animi sermo, or speech is the index of intention. 30 Furthermore, there
is the maxim verba legis non est recedendum, or from the words of a statute there should be no departure. 31
Moreover, the Court of Appeals correctly pointed out that the intention of the legislators in Section 24 of Rep.
Act No. 9165 is to provide stiffer and harsher punishment for those persons convicted of drug trafficking or
316
pushing while extending a sympathetic and magnanimous hand in Section 70 to drug dependents who are found
guilty of violation of Sections 11 32 and 15 33 of the Act. The law considers the users and possessors of illegal
drugs as victims while the drug traffickers and pushers as predators. Hence, while drug traffickers and pushers,
like Padua, are categorically disqualified from availing the law on probation, youthful drug dependents, users
and possessors alike, are given the chance to mend their ways. 34 The Court of Appeals also correctly stated
that had it been the intention of the legislators to exempt from the application of Section 24 the drug traffickers
and pushers who are minors and first time offenders, the law could have easily declared so. 35
The law indeed appears strict and harsh against drug traffickers and drug pushers while protective of drug users.
To illustrate, a person arrested for using illegal or dangerous drugs is meted only a penalty of six months
rehabilitation in a government center, as minimum, for the first offense under Section 15 of Rep. Act No. 9165,
while a person charged and convicted of selling dangerous drugs shall suffer life imprisonment to death and a
fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00) under
Section 5, Rep. Act No. 9165.
SO ORDERED.
Carpio-Morales, Tinga, Velasco, Jr. and Brion, JJ., concur.
||| (Padua v. People, G.R. No. 168546, [July 23, 2008], 581 PHIL 489-505)
THIRD DIVISION
[G.R. No. 184874. October 9, 2009.]

As for the second and third issues, Padua cannot argue that his right under Rep. Act No. 9344, the "Juvenile
Justice and Welfare Act of 2006" was violated. Nor can he argue that Section 32 of A.M. No. 02-1-18-SC
otherwise known as the "Rule on Juveniles in Conflict with the Law" has application in this case. Section 68 36
of Rep. Act No. 9344 and Section 32 of A.M. No. 02-1-18-SC both pertain to suspension of sentence and not
probation.
Furthermore, suspension of sentence under Section 38 37 of Rep. Act No. 9344 could no longer be retroactively
applied for petitioner's benefit. Section 38 of Rep. Act No. 9344 provides that once a child under 18 years of age
is found guilty of the offense charged, instead of pronouncing the judgment of conviction, the court shall place
the child in conflict with the law under suspended sentence. Section 40 38 of Rep. Act No. 9344, however,
provides that once the child reaches 18 years of age, the court shall determine whether to discharge the child,
order execution of sentence, or extend the suspended sentence for a certain specified period or until the child
reaches the maximum age of 21 years. Petitioner has already reached 21 years of age or over and thus, could no
longer be considered a child 39 for purposes of applying Rep. Act 9344. Thus, the application of Sections 38
and 40 appears moot and academic as far as his case is concerned. cDICaS
WHEREFORE, the petition is DENIED. The assailed Decision dated April 19, 2005 and the Resolution dated
June 14, 2005 of the Court of Appeals are AFFIRMED.
ROBERT REMIENDO y SIBLAWAN, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.
DECISION
NACHURA, J p:
This is a petition 1 for review on certiorari under Rule 45 of the Rules of Court assailing the Decision 2 dated
November 16, 2007 and the Resolution 3 dated October 3, 2008 of the Court of Appeals (CA) in CA-G.R. CR
No. 29316 entitled, "People of the Philippines v. Robert Remiendo y Siblawan". cCSHET
The case arose from the filing of two criminal informations, both dated March 10, 2008, against petitioner
Robert Remiendo y Siblawan (Remiendo), that read
317
Criminal Case No. 98-CR-2999
That in or about the month of March 1997, at Badiwan, Municipality of Tuba, Benguet Province, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously have carnal knowledge of one [AAA], a girl below 12 years of age.
CONTRARY TO LAW. 4
Criminal Case No. 98-CR-3000
That in or about the month of May 1997, at Badiwan, Municipality of Tuba, Benguet Province, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously have carnal knowledge of one [AAA], a girl below 12 years of age.
said house. On that day, her parents and brother left for work after breakfast, and she was left alone in the
house. Accused-appellant came in, pushed her into the room, and threatened to kill her if she reported what
happened. He undressed himself and the complainant. The latter was standing and refused to remove her panty
but she obliged when accused-appellant insisted. Then he made her lie on the bed and placed his penis in her
vagina. The complainant struggled, moved, and pushed accused-appellant. She felt pain when accused-appellant
inserted his penis into her vagina. She cried until accused-appellant left, but she did not shout because accusedappellant warned her not to, or else he would kick her. She put on her clothes after accused-appellant left. Her
parents arrived in the afternoon but she did not tell them what happened to her because her mother might whip
her. AacSTE
Sometime in May 1997, [AAA] was again sexually assaulted by accused-appellant, which took place in the
house of the latter. At that time, she was on her way to see her mother at her workplace after she had lunch.
When she passed by the house of accused-appellant, the latter pulled her into his house and brought her into his
room. She cried and shouted but accused-appellant told her to keep quiet. She struggled but was helpless
because accused-appellant was stronger. They were alone in the room. Accused-appellant removed his clothes
and told her to remove her panty. Afraid, she removed her panty and was made to lie on the bed. Accusedappellant inserted his penis into her vagina and she felt pain. She kept on moving but she could not push away
accused-appellant. She moved her shoulders and pushed accused-appellant with both hands but he was stronger.
Afterwards, accused-appellant moved away and threatened to kill her if she told anyone what happened. She
responded that she would not tell anyone. Later, she executed a sworn statement and identified accusedappellant as the person who raped her.
CONTRARY TO LAW. 5
Upon arraignment, Remiendo pled "not guilty" to both charges. After pretrial, a joint trial ensued before the
Regional Trial Court (RTC), Branch 62, La Trinidad, Benguet. Both the prosecution and the defense presented
their respective evidence, summarized by the CA in its Decision, to wit:
The prosecution presented the following version of facts:
Dr. Ronald R. Bandonill, Medico-Legal Officer of the National Bureau of Investigation (NBI)-Cordillera
Administrative Region, physically examined the complainant on 2 January 1998. Said medico-legal officer
testified that [AAA] was thirteen (13) years old and a Grade III pupil at Badiwan Tuba, Benguet at the time of
the examination. She was four feet and eleven inches (4'11") tall, weighed 78 pounds, fairly nourished, and
fairly developed. She was conscious, coherent, and cooperative. She was ambulatory and had no extra-genital
injuries. Upon examination of her genital area, he found old lacerations of the hymen at 5:00 and 7:00 o'clock
positions, which meant that her hymen was altered by a hard rigid instrument. The lacerations were done more
than three (3) months prior to the examination. To determine the approximate size of the object that the hymenal
opening could accommodate, he inserted a test tube. The 2.5-centimeter diameter of said tube was admitted with
ease by the hymenal orifice. He noted that the vaginal walls were lax and the ridges inside were smothered. The
complainant told him that accused-appellant raped her. He presented a written report of his findings.
The complainant [AAA] was born on 16 February 1986. At the time of the commission of the offense, she was a
minor below 12 years of age. She knew accused-appellant Robert Remiendo as he was residing near the house
where her family used to stay. Sometime in March 1997, she was sexually assaulted by accused-appellant inside
318
On 12 July 1998, psychiatrist Dr. Elsie I. Caducoy conducted an examination of the mental condition of the
complainant. The latter was also scheduled for psychological examination to be conducted by Elma Buadken.
The result of the examination showed that [AAA] is suffering from psychosis and organicity. She has a below
average intelligence quotient of 88, but not on the level of mental retardation. She can perform simple tasks but
needs guidance. As to her studies, she can hardly comprehend what is being taught to her. Having psychosis
means that her brain is afflicted with a disease. Her medical history showed that she suffered head and body
injuries brought about by being sideswiped by a motor vehicle sometime in 1996. She was confined in the
hospital for twelve (12) days. Said injuries substantially contributed to her present condition. Organicity, on the
other hand, means that the complainant suffers from a cloud of memory, upward rolling of the eyeballs,
stiffening of the extremities, loss of consciousness, and epileptic seizures. Her psychosis occurs after seizure.
She is not, however, insane. During a seizure, she does not know what is going on, but afterwards she returns to
her level of consciousness. With regular medication, her seizures will be greatly minimized. During her
interview, the complainant had a seizure and the psychiatrist had to wait until her consciousness level returned.
The complainant then revealed that accused-appellant and a certain Reynoso Cera raped her. The psychiatrist
opined that during the rape, she did not have a seizure because if she had, she would not have remembered what
had happened. The fact that she was able to narrate what happened and who raped her suggested that she was on
her conscious level at such time. A written report of the foregoing findings was submitted in court. DTEIaC
The defense presented the following version of facts:
Lea F. Chiwayan, thirteen (13) years old, testified that she was a friend, playmate, and neighbor of the
complainant. She testified that she and [AAA] played together and talked about their "crushes". The
complainant told Lea Chiwayan that she had a crush on accused-appellant. Sometime in April or May 1997, the
complainant said that her brother had molested her, and that he and his father had sexual intercourse with her in
their house in Poyopoy, Tuba. Sometime in August 1997, the complainant confided that Reynoso Cera raped her
in his house. She told Lea Chiwayan that she did not feel anything because she was used to having sexual
intercourse with brother and father. One Saturday afternoon, Lea Chiwayan and the complainant were playing
when they saw accused-appellant going to the basketball court near the church. They followed him and watched
a basketball game. After the game, Lea Chiwayan went home with the others while the complainant stayed
behind. A few seconds after they left, the complainant ran after them and told them that something happened
between her and accused-appellant. She said that accused-appellant pulled her towards the back of the church
and had sexual intercourse with her. The complainant later took back what she said because she was only
joking. She then asked Lea Chiwayan not to tell the accused-appellant. However, Lea Chiwayan told accusedappellant what the complainant told them. Accused-appellant confronted the complainant. He flicked a finger on
her head, kicked and spanked her. He said, "what are you saying, why did I do that, if I like and I do it, I'll not
do it with you, you should be ashamed of yourself". He then borrowed the vehicle of a certain Junie, started the
engine, and stepped on the gas such that the fumes from the exhaust pipe were directed at the complainant.
Later, Lea Chiwayan learned that [AAA] filed a case against accused-appellant.
Dolores L. Daniel, Grade II teacher of [AAA] for the school year 1997-1998, testified that the latter was unruly
and a liar. The complainant would pick fights and steal money from her classmates. However, the witness
admitted that there was no written record in school that she reprimanded complainant for her behavior. She
knew that the complainant had an accident before.
Victor Daniel, a jitney operator, testified that accused-appellant was one of his drivers. He described accusedappellant as a hardworking and industrious person. When he learned that Robert Remiendo was accused of rape,
he was outraged because he knew the daily activities of accused-appellant. The latter could not have done such
act under his strict supervision. SCIcTD
Accused-appellant testified that he knew the complainant, as she was a townmate of his mother. In September
1996, he and his parents were then residing in Badiwan. When the complainant figured in an accident at that
time, he was the one who informed her parents. The first time he saw the complainant was during the time when
he was doing some repairs on his jitney. He saw the complainant and her playmates go inside the jitney. He told
them to alight from the vehicle. Sometime in June 1997, he again saw the complainant and her sister playing
inside the jitney. He told them to alight as they were disturbing him. On the day he was playing basketball at the
church grounds in Badiwan, Lea and Emma Chiwayan approached him and asked him if it was true that he
raped [AAA]. He asked where the latter was and went to see her. Out of anger, he borrowed the vehicle of
Junie, started the engine, directed the exhaust pipe at the complainant, and revved the engine so the smoke
would go straight to her. He slapped her and said "if I would like someone, it would not be you because there
are a lot of girls better than you". During the Christmas party in Badiwan, he again saw the complainant
roaming around the dance area. He told her to get out as she irritated the people dancing. The complainant said
nothing and left the dance floor. Thereafter, he saw the complainant laughing and smiling. He learned that he
was charged with two (2) counts of rape when he received a subpoena issued by the Office of the Provincial
Prosecutor in January 1998. 6
319
In its Joint Judgment 7 dated October 27, 2004, the RTC found Remiendo guilty beyond reasonable doubt of
two (2) counts of statutory rape. The RTC disposed as follows:
WHEREFORE, in view of all the foregoing, the court finds ROBERT REMIENDO y SIBLAWAN guilty
beyond reasonable doubt of two counts of rape as charged in the Information docketed as Criminal Case No.
98-CR-2999 and in the Information docketed as Criminal Case No. 98-CR-3000, and hereby sentences him to
suffer the penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and
one (1) day of reclusion temporal, as maximum for each count of rape.
He shall further indemnify the offended party [AAA] the sum of Fifty Thousand Pesos (P50,000.00) by way of
civil indemnity, the sum of Thirty Thousand Pesos (P30,000.00) by way of moral damages, and the sum of Ten
Thousand Pesos (P10,000.00) by way of exemplary damages. aSHAIC
Pursuant to Administrative Circular No. 4-92-A of the Court Administrator, the Provincial Jail Warden of
Benguet Province is directed to immediately transfer the said accused, Robert Remiendo, to the custody of the
Bureau of Corrections, Muntinlupa City, Metro Manila after the expiration of fifteen (15) days from date of
promulgation unless otherwise ordered by this Court.
Let a copy of this Judgment be furnished the Provincial Jail Warden of Benguet Province for his information,
guidance and compliance.
SO ORDERED. 8
MODIFICATION on the civil liability of accused-appellant. He is ordered to pay the complainant, for each
count of rape, the sum of (a) P50,000.00 as civil indemnity, (b) P50,000.00 as moral damages, and (c)
P25,000.00 as exemplary damages.
SO ORDERED. 9
Remiendo moved to reconsider the November 16, 2007 Decision, but the CA denied the motion in its October
3, 2008 Resolution; hence, this petition alleging that
(a) THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE DECISION OF THE COURT A
QUO CONVICTING PETITIONER OF STATUTORY RAPE DESPITE THE ABSENCE OF EVIDENCE TO
PROVE THE TRUE AND REAL AGE OF THE PRIVATE COMPLAINANT.
(b) THE COURT OF APPEALS GRAVELY ERRED IN NOT GIVING PETITIONER THE BENEFIT
ACCORDED TO HIM BY REPUBLIC ACT 9344 KNOWN AS THE JUVENILE JUSTICE AND WELFARE
ACT OF 2006 INCREASING THE AGE OF CRIMINAL RESPONSIBILITY. 10 cDCEHa
Remiendo questions his conviction for statutory rape despite the purported absence of competent proof that
AAA was below 12 years old at the time of the alleged commission of the crimes. According to him, the
Certificate of Live Birth of AAA offered by the prosecution during its formal offer of exhibits was not admitted
by the RTC in its Order 11 dated September 14, 1999 because "it was neither identified by any witness, nor
marked as exhibit during the trial though reserved for marking during the pretrial". He further posits that, on the
basis of the testimonies of the defense witnesses and the Elementary School Permanent Record, 12 AAA was
more than 12 years old in March and May 1997.
Aggrieved, Remiendo interposed his appeal before the CA. In its assailed Decision, the CA affirmed the RTC,
modifying only the civil liability imposed upon Remiendo. The fallo of the CA Decision reads
WHEREFORE, premises considered, the instant appeal is DISMISSED. The Joint Judgment dated 27 October
2004 rendered by the Regional Trial Court, Branch 62, La Trinidad, Benguet, is AFFIRMED with
Considering that AAA was more than 12 years of age, Remiendo then questions her credibility as a witness,
claiming that she was smiling during her testimony; and that her failure to flee from the situation, even taking
off her panties herself, belies her charges of statutory rape against him.
320
We disagree.
As provided in Article 266-A (1) (d) of the Revised Penal Code, sexual intercourse with a girl below 12 years
old is statutory rape. Its two elements are: (1) that the accused has carnal knowledge of a woman; and (2) that
the woman is below 12 years of age. Sexual congress with a girl under 12 years old is always rape. 13
As regards the appreciation of the age of a rape victim, the Court, in People v. Pruna, 14 laid down the
following guidelines:
1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate
of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and
school records which show the date of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of the victim's mother or a 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 Evidence shall be sufficient under
the following circumstances:
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.
4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or
relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and
clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to
object to the testimonial evidence regarding age shall not be taken against him.
6. The trial court should always make a categorical finding as to the age of the victim. 15
In this case, the prosecution offered in evidence a certified true copy of AAA's Certificate of Live Birth 16 as
part of the testimonies of AAA and her mother that AAA was born on February 21, 1986. It was reserved for
marking as part of the exhibits for the prosecution, as shown in the Pretrial Order 17 dated November 16, 1998.
During the trial, in order to abbreviate the proceedings, the parties agreed to stipulate on the testimony of AAA's
mother, specifically on the following facts:
1. That she is [BBB], the natural mother of [AAA], the victim in these two (2) Criminal Cases Nos. 98-CR2999 and 98-CR-3000;
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; HDTISa
2. That on January 5, 1998[,] she executed an affidavit-complaint for and on behalf of her daughter which she
subscribed before NBI agent Atty. Dave Alunan; and
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;
3. That the subject matter of her sworn statement against Reynoso Cera and Robert Remiendo is the alleged
statutory rape against [AAA]. 18
321
And part of the affidavit-complaint of BBB is the statement that AAA was born on February 21, 1986. 19
CIDcHA
admission that the said date was the correct birthday of AAA. And as between the school record and the
testimonies of AAA and her mother BBB, the latter must prevail. TAacIE
A certificate of live birth is a public document that consists of entries (regarding the facts of birth) in public
records (Civil Registry) made in the performance of a duty by a public officer (Civil Registrar). As such, it is
prima facie evidence of the fact of birth of a child, 20 and it does not need authentication. It can only be
rebutted by clear and convincing evidence to the contrary. Thus, despite the September 14, 1999 Order, the RTC
correctly appreciated the same in its Joint Judgment.
As to the credibility of AAA as a witness, jurisprudence instructs us that the trial court's assessment deserves
great weight, and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe directly the
witnesses' deportment and manner of testifying, the trial court is in a better position than the appellate court to
evaluate testimonial evidence properly. 23
Nevertheless, even assuming that the Certificate of Live Birth was not appreciated by the RTC, the prosecution
was able to establish that AAA was below 12 years old during the two occasions of rape per the guidelines laid
down in Pruna. It is significant to note that both AAA and BBB testified that AAA was born on February 21,
1986. This fact was neither denied nor objected to by the defense. The argument of Remiendo that the
prosecution admitted in the course of trial that AAA's birthday was February 21, 1984 cannot stand. As quoted
by Remiendo in his petition
Testimonies of rape victims who are young and immature deserve full credence, inasmuch as no young woman,
especially of tender age, would concoct a story of defloration, allow an examination of her private parts, and
thereafter pervert herself by being the subject of a public trial, if she was not motivated solely by the desire to
obtain justice for the wrong committed against her. Youth and immaturity are generally badges of truth. It is
highly improbable that a girl of tender years, one not yet exposed to the ways of the world, would impute to any
man a crime so serious as rape if what she claims is not true. 24
Court:
What is more, AAA's testimony of rape was corroborated by the NBI medico-legal examination showing healed
lacerations on her hymen. Hymenal lacerations, whether healed or fresh, are the best evidence of forcible
defloration. When the consistent and forthright testimony of a rape victim is consistent with medical findings,
there is sufficient basis to warrant a conclusion that the essential requisites of carnal knowledge have been
established. When there is no evidence to show any improper motive on the part of the rape victim to testify
falsely against the accused or to falsely implicate him in the commission of a crime, the logical conclusion is
that the testimony is worthy of full faith and credence. 25 In this case, Remiendo failed to convince us to rule
otherwise.
Anyway, it is stated in that document that the birth date of [AAA] was February 21, 1983. Do you agree that
that is an entry there?
Pros. Suanding:
Yes, your honor. We agree, your honor. 21

This statement cannot qualify as a judicial admission on the birth date of AAA. A judicial admission is an
admission, verbal or written, made by a party in the course of the proceedings in the same case and it dispenses
with proof with respect to the matter or fact admitted. It may be contradicted only by showing that it was made
through palpable mistake or that no such admission was made. 22 In this case, what was only admitted was that
the entry of AAA's date of birth appearing in her school record is February 21, 1983. There was no such
Remiendo also posits that he should benefit from the mandate of Republic Act (R.A.) No. 9344, otherwise
known as the Juvenile Justice and Welfare Act of 2006.
The pertinent provision of R.A. No. 9344 reads
322
SEC. 6. Minimum Age of Criminal Responsibility. A child fifteen (15) years of age or under at the time of
an intervention program pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18) years of age shall be likewise exempt from criminal
liability and be subjected to an intervention program, unless he/she acted with discernment, in which case, such
child shall be subjected to the appropriate proceedings in accordance with this Act.
Remiendo, being above 15 and under 18 years of age at the time of the rape, 28 and having acted with
discernment, but having already reached 21 years of age at the time of the imposition of his sentence by the trial
court, his claim for the benefits of R.A. No. 9344 is rendered moot and academic in view of Section 40 29
thereof which provides
SEC. 40. Return of the Child in Conflict with the Law to Court. If the court finds that the objective of the
conflict with the law has willfully failed to comply with the conditions of his/her disposition or rehabilitation
program, the child in conflict with the law shall be brought before the court for execution of judgment.
shall be enforced in accordance with existing laws. 26
Remiendo argues that the prosecution failed to establish that he acted with discernment in the commission of the
crimes charged. Thus, he claims that he should be exempt from criminal liability. SaHcAC
We differ. Discernment is the mental capacity to understand the difference between right and wrong. The
prosecution is burdened to prove that the accused acted with discernment by evidence of physical appearance,
attitude or deportment not only before and during the commission of the act, but also after and during the trial.
The surrounding circumstances must demonstrate that the minor knew what he was doing and that it was wrong.
Such circumstance includes the gruesome nature of the crime and the minor's cunning and shrewdness. 27
If the child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the
or to extend the suspended sentence for a certain period or until the child reaches the maximum age of twentyone (21) years. 30 IDAEHT
Remiendo was born on January 21, 1982. The Joint Judgment was promulgated on October 27, 2004. Thus, at
the time of the imposition of his sentence, Remiendo was already 22 years old and could no longer be
considered a child for the purposes of the application of R.A. No. 9344.
WHEREFORE, the petition is DENIED, and the Decision dated November 16, 2007 and the Resolution dated
October 3, 2008 of the Court of Appeals are AFFIRMED. No costs.
Culled from the records of this case, it is manifest that Remiendo acted with discernment, being able to
distinguish between right and wrong and knowing fully well the consequences of his acts against AAA. During
the rape that occurred in March 1997, Remiendo waited for AAA to be left alone at her house before he came,
and, while doing his dastardly act, threatened to kick her should she shout for help. In May 1997, Remiendo
again ravished AAA in the room of his house when the latter passed by and, thereafter, threatened to kill her if
she told anybody about what had just happened. Per his own testimony, he knew that committing rape was
wrong because he claimed to have been enraged when he was asked by AAA's playmates if he indeed raped
AAA, to the point of slapping her and revving up the engine of a jitney and directing the smoke from the
exhaust pipe towards her.
SO ORDERED.
Carpio, Acting C.J., Carpio Morales, * Velasco, Jr. and Peralta, JJ., concur.
||| (Remiendo y Siblawan v. People, G.R. No. 184874, [October 9, 2009], 618 PHIL 273-290)
323
SECOND DIVISION
[G.R. No. 81381. September 30, 1988.]
EFIGENIO S. DAMASCO, petitioner, vs. JUDGE HILARIO L. LAQUI, in his capacity as Presiding Judge of
Metropolitan Trial Court, Br. 59, Mandaluyong, Metro Manila and the PEOPLE OF THE PHILIPPINES,
respondents.
apply the suggestion in the aforecited memorandum could contravene said Article 89, which is a part of
substantive law. This position is further strengthened by Sec. 8, Rule 117, 1985 Rules on Criminal Procedure,
which added extinction of offense as one of the exceptions to the general rule regarding the effects of a failure
to assert a ground of a motion to quash.
RESOLUTION
Del Prado, Diaz, Sy, Damasco Law Offices for petitioner.
The Solicitor General for respondent.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; WHERE AN ACCUSED

HAS BEEN FOUND TO HAVE COMMITTED A LESSER OFFENSE INCLUDIBLE WITHIN GRAVER
OFFENSE CHARGED, HE CANNOT BE CONVICTED OF LESSER OFFENSE IF IT HAS ALREADY
PRESCRIBED. In the case of Francisco vs. Court of Appeals, the Court held that where an accused has been
found to have committed a lesser offense includible within the graver offense charged, he cannot be convicted
of the lesser offense if it has already prescribed. To hold otherwise, according to the Court, would be to sanction
a circumvention of the law on prescription by the simple expedient of accusing the defendant of the graver
offense.
2. ID.; ID.; ID.; PRESCRIPTION OF A CRIME OR OFFENSE, A LOSS OR WAIVER BY STATE OF ITS
RIGHT TO PROSECUTE. Philippine jurisprudence considers prescription of a crime or offense as a loss or
waiver by the State of its right to prosecute an act prohibited and punished by law.
3. ID.; ID.; MOTION TO QUASH; PRESCRIPTION, AN EXCEPTION TO RULE THAT AN ACCUSED

WHO FAILS TO MOVE TO QUASH BEFORE PLEADING IS DEEMED TO WAIVE ALL OBJECTIONS
WHICH ARE GROUNDS THEREOF. While it is the rule that an accused who fails to move to quash before
pleading, is deemed to waive all objections which are grounds of a motion to quash, yet, this rule cannot apply
to the defense of prescription, which under Art. 69 of the Revised Penal Code extinguishes criminal liability. To
PADILLA, J p:
In an Information dated 11 September 1987, but filed only on 17 September 1987 with the Municipal Trial
Court of Mandaluyong, Branch 59, presided over by respondent Judge Hilario L. Laqui, petitioner Atty.
Efigenio S. Damasco was charged with the crime of grave threats committed as follows:
"That on or about the 8th day of July 1987, in the Municipality of Mandaluyong, Metro Manila, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously threaten one Rafael K Sumadohat, with the infliction upon his person of a wrong
amounting to a crime, that is, by then and there uttering the following remarks, to wit:
'BAKIT MO AKO GINAGANITO? MAGBABAYAD KA . . . PAPATAYIN KITA . . . MAYROON AKONG

BARIL, BABARILIN KITA, TAGADIYAN LANG AKO.'" (Rollo, p. 13)
Upon arraignment, petitioner pleaded not guilty. After trial, respondent Judge found that the evidence presented
did not establish the crime of grave threats but only of light threats. As a result, petitioner was convicted of the
latter crime and was sentenced to pay a fine of P100.00 and the costs. LLphil
Subsequently, petitioner filed a Motion to Rectify and Set Aside the dispositive part of respondent Judge's
decision, contending that he cannot be convicted of light threats, necessarily included in grave threats charged
in the information, as the lighter offense had already prescribed when the information was filed. Petitioner states
324
that the crime was committed on 8 July 1987 and the information was filed only on 17 September 1987 or after
the lapse of 71 days. (Incidentally, the affidavit complaint was filed with the Fiscal's Office only on 7
September 1987, or after the lapse of 61 days from 8 July 1987. 1 ) Upon the other hand, the crime of light
threats, which is a light offense, prescribes in two (2) months 3
In denying petitioner's motion, the lower court held that:
"Just to disabuse the mind of the movant, let it be said that the Court is fully aware of the respective date of the
commission of the offense and of the filing of the information. The Court holds on to the principle that the
allegation in the information confers jurisdiction and that jurisdiction once acquired cannot be lost.
"Thus, since the Court acquired jurisdiction to try the case because the information was filed within the
prescriptive period for the crime charged, which is Grave Threats, the same cannot be lost by prescription, if
after trial what has been proven is merely light threats." 4
The Office of the Solicitor General, in its Comment, recommends that the petition be given due course, stating
that:
"Respondent Judge denied the 'Motion to Rectify and Set Aside the Dispositive Portion of the Decision'
apparently with the misimpression that what was being questioned was the court's jurisdiction over the offense
charged, ratiocinating that jurisdiction, once acquired, cannot be lost. But such is not the case. True, the
allegations in the Information confer jurisdiction upon the courts, and once acquired, such jurisdiction cannot be
lost. However, this principle is not applicable in the case at bar. The jurisdiction of the lower court over the
crime was never questioned. Rather, the legal dispute lies in whether or not it was proper for respondent Judge
to still convict petitioner after finding him guilty of the lesser offense of light threats but which has already
prescribed. Verily, the query should be answered in the negative for reasons heretofore discussed." 5
circumvention of the law on prescription by the simple expedient of accusing the defendant of the graver
offense. cdll
Incidentally, in the case of Felino Reyes vs. Hon. Intermediate Appellate Court and People of the Philippines, 7
a Memorandum prepared by this ponente for the Court, entitled "An Examination of the Rule Which Holds That
One Cannot Be Convicted Of A Lesser Offense Includible Within a Greater Offense, Where Prosecution For
The Latter Was Commenced After Expiration Of Limitations Applicable To The Lesser Offense," discusses a
possible attempt to depart from the rule laid down in Francisco vs. CA, 9
However, Philippine jurisprudence considers prescription of a crime or offense as a loss or waiver by the State
of its right to prosecute an act prohibited and punished by law. 10 Hence, while it is the rule that an accused
who fails to move to quash before pleading, is deemed to waive all objections which are grounds of a motion to
quash, yet, this rule cannot apply to the defense of prescription, which under Art. 69 of the Revised Penal Code
extinguishes criminal liability. To apply the suggestion in the aforecited memorandum could contravene said
Article 89, which is a part of substantive law. 11 This position is further strengthened by Sec. 8, Rule 117, 1985
Rules on Criminal Procedure, which added extinction of offense as one of the exceptions to the general rule
regarding the effects of a failure to assert a ground of a motion to quash. LibLex
Thus, as suggested by the cited memorandum, a departure from the ruling in Francisco vs. CA, 12 can be done
only "through an overhaul of some existing rules on criminal procedure to give prescription a limited meaning,
i.e., a mere bar to the commencement of a criminal action and therefore, waivable." 13 But this will have to
contend with the Constitutional provision that while the Supreme Court has the power to promulgate rules
concerning the protection and enforcement of constitutional rights, pleadings, practice and procedure in all
courts, the admission to the practice of law, the integrated bar, and the legal assistance to the underprivileged,
such rules shall not however diminish, increase or modify substantive rights. 14
ACCORDINGLY, the petition is GRANTED and the questioned decision is SET ASIDE.
SO ORDERED.
In the case of Francisco vs. Court of Appeals, 6 the Court held that where an accused has been found to have
committed a lesser offense includible within the graver offense charged, he cannot be convicted of the lesser
offense if it has already prescribed. To hold otherwise, according to the Court, would be to sanction a
Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur.

||| (Damasco v. Laqui, G.R. No. 81381 (Resolution), [September 30, 1988], 248 PHIL 455-459)
325
FIRST DIVISION
intendment to be made in favor of either party. Neither grants the right to the other; there is therefore no grantor
against whom the ordinary presumptions of construction are to be made. But it is otherwise when a statute of
limitation is granted by the State. Here the State is the grantor, surrendering by act of grace its rights to
prosecute, and declaring the offense to be no longer the subject of prosecution. The statute is not a statute of
process, to be scantily and grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall
be cast over the offense; that the offender shall be at liberty to return to his country, and resume his immunities
as a citizen; and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his
guilt and blotted out.
[G.R. No. L-28841. June 24, 1983.]
RAFAEL YAPDIANGCO, petitioner-appellant, vs. THE HON. CONCEPCION B. BUENCAMINO and HON.
JUSTINIANO CORTEZ, respondents-appellees.
SYLLABUS
1.CRIMINAL LAW; LIGHT OFFENSES; PRESCRIPTION; COMPUTATION OF PERIOD. Under Article

90 of the Revised Penal Code, light offenses prescribe in two months. Article 13 of the Civil Code provides that
when the law speak of months, it shall be understood that months are of thirty days each. The period of
prescription shall commence to run from the day on which the crime is discovered by the offended party, the
authorities or their agents, and shall be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the accused being convicted or acquitted, or
are unjustifiably stopped for any reason not imputable to him. The term of prescription shall not run when the
offender is absent from the Philippine Archipelago.
2.ID.; STATUTE OF LIMITATION IN CRIMINAL CASES; NATURE ESSENTIALLY DIFFERENT FROM

STATUTE OF LIMITATION IN CIVIL SUITS. The case at hands does not involve the simple issue of when
to do an act. It deals with the prescription of a criminal action. Under unquestioned authorities, the question to
be resolved is when the State is deemed to have lost or waived its right to prosecute an act prohibited and
punished by law. "We should at first observe that a mistake is sometimes made in applying to statutes of
limitation in criminal suits the construction that has been given statutes of limitation in civil suits. The two
classes of statutes, however, are essentially different. In civil suits the statute is interposed by the legislature as
an impartial arbiter between two contending parties. In the construction of the statue, therefore, there is no
3.ID.; RULES DEALING WITH THE COMPUTATION OF TIME ALLOWED TO PERFORM A

PARTICULAR ACT; INAPPLICABLE TO STATUTE OF LIMITATION IN CRIMINAL CASES. The rules
contained in Section 31 of the Revise Administrative Code and Section 1, Rule 28 of the Old Rules of Court
deal with the computation of time allowed to do a particular act, such as, the filling of tax returns on or before a
definite date, filing an answer to a complainant, taking an appeal, etc. they do not apply to lengthen the period
fixed by the State for it to prosecute those who committed a crime against it. The waiver or loss of the right to
prosecute such offenders is automatic and by operation of law. Where the sixtieth and last day to file an
information falls on a Sunday or legal holiday, the sixty-day period cannot be extended up to the next working
day. Prescription has automatically set in. The remedy is for the fiscal or prosecution to file the information on
the last working day before the criminal offense prescribes.
RELOVA, J., dissenting:
REMEDIAL LAW; CRIMINAL PROCEDURE; COMPLAINT OR INFORMATION; WHERE THE LAST

DAY OF FILLING THEREOF FELL ON A SUNDAY OR HOLIDAY, THE SAME MAY BE FILED ON THE
NEXT SUCCEEDING BUSINESS DAY. Section 31 of the Revised Administrative Code provides that
"where the day or the last day, for doing an act required or permitted by law falls on a holiday, the act may be
done on the next succeeding business day." In the case at bar since the last day within which ti file the
complaint or information in court fell on a Sunday, the filing thereof may be done on the next succeeding
business day.
DECISION
326
GUTIERREZ, JR., J p:
The petitioner-appellant raised the following assignments of errors:
If the last day in the period of prescription of a felony falls on a Sunday or legal holiday, may the information be
filed on the next working day?
FIRST ASSIGNMENT OF ERROR
Stated otherwise, the issue in this appeal from a decision of the Court of First Instance of Rizal Branch IX at
Quezon City is whether or not a Sunday or a legal holiday is a legal efficient cause which interrupts the
prescription of an offense.
THE LOWER COURT ERRED IN FINDING THAT SUNDAY IS A LEGAL EFFICIENT CAUSE TO
INTERRUPT PRESCRIPTION OF AN OFFENSE.
SECOND ASSIGNMENT OF ERROR

On February 1, 1965, the City Fiscal of Quezon City filed before the City Court an information for slight
physical injuries allegedly committed by the petitioner-appellant on December 2, 1964 against Mr. Ang Cho
Ching.
On September 10, 1965, the petitioner-appellant moved to quash the criminal prosecution on the ground that the
information having been filed on the sixty first day following the commission of the offense, the sixty days
prescriptive period had lapsed.
On September 14, 1965, the City Court of Quezon City denied the motion to quash stating that the 60th day fell
on a Sunday and considering the rule that when the last day for the filing of a pleading falls on a Sunday, the
same may be filed on the next succeeding business day, the action had not prescribed.
After a motion for reconsideration was denied by the City Court, the petitioner-appellant filed a petition for
certiorari and mandamus with preliminary injunction before the Court of First Instance of Rizal. llcd
THE LOWER COURT ERRED IN FINDING THAT THE PERIOD FIXED BY LAW WITHIN WHICH TO
COMMENCE CRIMINAL PROSECUTION MAY LEGALLY BE EXTENDED WITH THE INTERVENTION
OF A SUNDAY OR LEGAL HOLIDAY.
THIRD ASSIGNMENT OF ERROR
THE LOWER COURT ERRED IN DENYING THE PETITION FOR MANDAMUS AND PRELIMINARY
INJUNCTION.
Under Article 90 of the Revised Penal Code, light offenses prescribe in two months. Article 13 of the Civil
Code provides that when the law speaks of months, it shall be understood that months are of thirty days each.
Article 91 of the Revised Penal Code reads:

On July 11, 1966, the Court of First Instance of Rizal dismissed the petition. A motion for reconsideration was
subsequently denied. Hence, this appeal.
"ART. 91.Computation of prescription of offenses. The period of prescription shall commence to run from
the day on which the crime is discovered by the offended party, the authorities or their agents, and shall be
327
interrupted by the filing of the complaint or information, and shall commence to run again when such
proceedings terminate without the accused being convicted or acquitted or are unjustifiably stopped for any
reason not imputable to him.
"The term of prescription shall not run when the offender is absent from the Philippine Archipelago."
In support of his three assignments of errors which he discusses jointly, the petitioner-appellant argues:
xxx xxx xxx
"Ibid., Section 357, page 37:
"'The running of the statute of limitation can be prevented only by the means or for the reasons specified therein
. . .'
"Ibid., Section 342, page 32:
"'Statutes of limitations in criminal cases-differ from those in civil cases. In civil cases they are statutes of
repose, while in criminal cases they create a bar to the prosecution. . . .'
"b)the fact that the 60th day was a Sunday did not interrupt nor stop the running of the prescriptive period, for.
"22 C.J.S., Section 228 (1), 596 597:
i)as a matter of statutory articulation a Sunday or holiday is not recognized as legally efficient cause to interrupt
prescription;
ii)under the principle of inclusio unius exclusio alterius, the single exception of offender's absence specified in
Article 91 of the Revised Penal Code excludes any other cause sufficient to interrupt prescription;
"'As a general rule, exceptions will not be implied to the statutes of limitations of criminal offenses, and hence,
in criminal prosecutions unless the statute of limitations contains an exception or condition that will toll its
operation, the running of the statute is not interrupted, save only by indictment or other sufficient procedure
commencing the prosecution of the offense. After the statute has commenced to run it will not be interrupted by
the happening of any subsequent event or disability . . .'
iii)under the specific and controlling jurisprudence of the cases that the last day of prescriptive period is a
Sunday or a holiday does not interrupt prescription.
"45 Century Digest, Time, Section 41:
"15 AM. Jur., Section 346, page 34:
"'When an action would be barred on Sunday, that day must be excluded from the count and the action brought
on the Saturday preceding, to save the bar. (Allen vs. Elliot, 67 Ala. 432.)'
"'The statute of limitations run from the time the offense is committed until the prosecution is commenced. . . .'
328
"'Where the year in which to begin an action expires on Sunday, the action must be begun on the preceding day.
(William vs. Lane, 87 Wis. 152, 58 NW 77.)'
"iv)under the pervasive criminal law principle of liberal construction of penal statutes in favor of the accused
the conclusion is evident that the exception clause to the prescriptive rule in Article 91 of the Revised Penal
Code should not be unduly stretched and strained to include exceptions not specified nor as much as intimated
in the statute.
The law requires or permits the filing of the information within two months or sixty days from the date the
crime was discovered by the offended party. Since the 60th day or last day for the filing of the information in
this case fell on a holiday, according to the respondents-appellees the law should allow the filing of charges to
be done on the next succeeding business day.
If we follow the ordinary rule of time computation based on the common law, which, in construing statutes of
limitations excludes the first day and includes the last day unless the last day is dies non in which event the
following day is included, the stand of the respondents-appellees would be correct.
"U.S. vs. Abad Santos, 36 Phil. 243:

As pointed out by the respondents-appellees, Section 1, Rule 28 of the former Rules of Court provided:
"'Criminal statutes are to be strictly construed; no persons should be brought within the terms who is not clearly
within them nor should any act be pronounced criminal when it is not made so.'
"v)extinctive or acquisitive prescription is not similar to reglementary periods provided in the Rules of Court or
in any other statutes, hence, may not be extended under the 'next business day theory'. Thus, it cannot be said
under our system that a party has a right to move, and the court the corresponding authority to grant an
extension of a period of prescription "
xxx xxx xxx
"'How to compute time. In computing any period of time prescribed or allowed by these rules, by order of
court, or by any applicable statute, the day of the act, event, or default after which the designated period of time
begins to run is not to be included. The last day of the period so computed is to be included, unless it is a
Sunday or a legal holiday, in which event the time shall run until the end of the next day which is neither a
Sunday nor a holiday.'"
After carefully considering all the foregoing, we find the arguments of the petitioners appellants meritorious.
We are not dealing in this case with a simple rule on when a pleading may be filed.
As against these arguments of the petitioner-appellant, the respondents cite the following provision of the
Revised Administrative Code to sustain their side:
"SEC. 31.Pretermission of holiday. Where the day, or the last day, for doing any act required or permitted by
law falls on a holiday, the act may be done on the next succeeding business day."
The case at hand does not involve the simple issue of when to do an act. It deals with the prescription of a
criminal action. Under unquestioned authorities, the question to be resolved is when the State is deemed to have
lost or waived its right to prosecute an act prohibited and punished by law. (People v. Moran, 44 Phil. 387, 4067; People v. Parel, 44 Phil. 437, 445; People v. Montenegro, 68 Phil. 659). Wharton, in his work on Criminal
Pleading and Practice, quoted in People v. Moran has this to say about the nature of the statute of limitations in
criminal actions:
329
"We should at first observe that a mistake is sometimes made in applying to statutes of limitation in criminal
suits the construction that has been given to statutes of limitation in civil suits. The two classes of statutes,
however, are essentially different. In civil suits the statute is interposed by the legislature as an impartial arbiter
between two contending parties. In the construction of the statute, therefore, there is no intendment to be made
in favor of either party. Neither grants the right to the other; there is therefore no grantor against whom the
ordinary presumptions of construction are to be made. But it is otherwise when a statute of limitation is granted
by the State. Here the State is the grantor, surrendering by act of grace its rights to prosecute, and declaring the
offense to be no longer the subject of prosecution. The statute is not a statute of process, to be scantily and
grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offense;
that the offender shall be at liberty to return to his country, and resume his immunities as a citizen; and that from
henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out.
Hence it is that statutes of limitation are to be liberally construed in favor the defendant, not only because such
liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute
is a recognition and notification by the legislature of the fact that time, while it gradually wears out proofs and
innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt. Independently of
these views, it must be remembered that delay in instituting prosecutions is not only productive of expense to
the State, but of peril to public justice in the attenuation and distortion, even by mere natural lapse of memory,
of testimony. It is the policy of the law that prosecutions should be prompt and that statutes enforcing such
promptitude should be vigorously maintained. They are not merely acts of grace, but checks imposed by the
State upon itself, to exact vigilant activity from its subalterns, and to secure for criminal trials the best evidence
that can be obtained." (44 Phil. 405-406; emphasis supplied).
SO ORDERED.
The rules contained in Section 31 of the Revised Administrative Code and Section 1, Rule 28 of the Old Rules
of Court deal with the computation of time allowed to do a particular act, such as, the filing of tax returns on or
before a definite date, filing an answer to a complaint, taking an appeal, etc. They do not apply to lengthen the
period fixed by the State for it to prosecute those who committed a crime against it. The waiver or loss of the
right to prosecute such offenders is automatic and by operation of law. Where the sixtieth and last day to file an
information falls on a Sunday or legal holiday, the sixth-day period cannot be extended up to the next working
day. Prescription has automatically set in. The remedy is for the fiscal or prosecution to file the information on
the last working day before the criminal offense prescribes. LLjur
ROMERO, J p:
WHEREFORE, the petition for certiorari and mandamus is granted. The questioned order of the respondent
court is SET ASIDE. The motion to quash is GRANTED and the information before the city court is
DISMISSED.
Separate Opinions
RELOVA, J., dissenting:
I dissent. Sec. 31 of the Revised Administrative Code provides that "where the day, or the last day, for doing an
act required or permitted by law falls on a holiday, the act may be done on the next succeeding day." In the case
at bar, since the last day within which to file the complaint or information in court fell on a Sunday, the filing
thereof may be done on the next succeeding business day.
||| (Yapdiangco v. Buencamino, G.R. No. L-28841, [June 24, 1983], 207 PHIL 615-623)
EN BANC
[G.R. No. 102007. September 2, 1994.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO BAYOTAS Y CORDOVA, accusedappellant.
DECISION
In Criminal Case No. C-3217 filed before Branch 16, RTC Roxas City, Rogelio Bayotas y Cordova was charged
with Rape and eventually convicted thereof on June 19, 1991 in a decision penned by Judge Manuel E. Autajay.
Pending appeal of his conviction, Bayotas died on February 4, 1992 at the National Bilibid Hospital due to
cardio respiratory arrest secondary to hepatic encephalopathy secondary to hipato carcinoma gastric
malingering. Consequently, the Supreme Court in its Resolution of May 20, 1992 dismissed the criminal aspect
of the appeal. However, it required the Solicitor General to file its comment with regard to Bayotas' civil
liability arising from his commission of the offense charged. LibLex
In his comment, the Solicitor General expressed his view that the death of accused-appellant did not extinguish
his civil liability as a result of his commission of the offense charged. The Solicitor General, relying on the case
of People v. Sendaydiego 1 insists that the appeal should still be resolved for the purpose of reviewing his
conviction by the lower court on which the civil liability is based.
330
Counsel for the accused-appellant, on the other hand, opposed the view of the Solicitor General arguing that the
death of the accused while judgment of conviction is pending appeal extinguishes both his criminal and civil
penalties. In support of his position, said counsel invoked the ruling of the Court of Appeals in People v.
Castillo and Ocfemia 2 which held that the civil obligation in a criminal case takes root in the criminal
liability and, therefore, civil liability is extinguished if accused should die before final judgment is rendered.
We are thus confronted with a single issue: Does death of the accused pending appeal of his conviction
extinguish his civil liability?
The civil liability, however, poses a problem. Such liability is extinguished only when the death of the offender
occurs before final judgment. Saddled upon us is the task of ascertaining the legal import of the term 'final
judgment.' Is it final judgment as contradistinguished from an interlocutory order? Or, is it a judgment which is
final and executory?
We go to the genesis of the law. The legal precept contained in Article 89 of the Revised Penal Code heretofore
transcribed is lifted from Article 132 of the Spanish El Codigo Penal de 1870 which, in part, recites:
'La responsabilidad penal se extingue.
In the aforementioned case of People v. Castillo, this issue was settled in the affirmative. This same issue posed
therein was phrased thus: Does the death of Alfredo Castillo affect both his criminal responsibility and his civil
liability as a consequence of the alleged crime?
1. Por la muerte del reo en cuanto a las penas personales siempre, y respecto a las pecuniarias, solo cuando a su
fallecimiento no hubiere recaido sentencia firme.'
It resolved this issue thru the following disquisition:
xxx xxx xxx
"Article 89 of the Revised Penal Code is the controlling statute. It reads, in part:
The code of 1870 . . . it will be observed employs the term 'sentencia firme.' What is 'sentencia firme' under the
old statute?
'ART. 89. How criminal liability is totally extinguished. Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties; and as to the pecuniary penalties liability therefor is
extinguished only when the death of the offender occurs before final judgment;
With reference to Castillo's criminal liability, there is no question. The law is plain. Statutory construction is
unnecessary. Said liability is extinguished.
XXVIII Enciclopedia Juridica Espaola, p. 473, furnishes the ready answer: It says:
'SENTENCIA FIRME. La sentencia que adquiere la fuerza de las definitivas por no haberse utilizado por las
partes litigates recurso alguno contra ella dentro de los terminos y plazos legalles concedidos al efecto.'
'Sentencia firme' really should be understood as one which is definite. Because, it is only when judgment is such
that, as Medina y Maranon puts it, the crime is confirmed 'en condena determinada;' or, in the words of
Groizard, the guilt of the accused becomes 'una verdad legal.' Prior thereto, should the accused die,
331
according to Viada, 'no hay legalmente, en tal caso, ni reo, ni delito ni responsibilidad criminal de ninguna
clase.' And, as Judge Kapunan well explained, when a defendant dies before judgment becomes executory,
'there cannot be any determination by final judgment whether or not the felony upon which the civil action
might arise exists,' for the simple reason that `there is no party defendant.' (I Kapunan, Revised Penal Code,
Annotated, p. 421. Senator Francisco holds the same view. Francisco, Revised Penal Code, Book One, 2nd ed.,
pp. 859-860).
The legal import of the term 'final judgment' is similarly reflected in the Revised Penal Code. Articles 72 and 78
of that legal body mention the term 'final judgment' in the sense that it is already enforceable. This also brings to
mind Section 7, Rule 116 of the Rules of Court which states that a judgment in a criminal case becomes final
'after the lapse of the period for perfecting an appeal or when the sentence has been partially or totally satisfied
or served, or the defendant has expressly waived in writing his right to appeal.'
By fair intendment, the legal precepts and opinions here collected funnel down to one positive conclusion: The
term final judgment employed in the Revised Penal Code means judgment beyond recall. Really, as long as a
judgment has not become executory, it cannot be truthfully said that defendant is definitely guilty of the felony
charged against him.
Not that the meaning thus given to final judgment is without reason. For where, as in this case, the right to
institute a separate civil action is not reserved, the decision to be rendered must, of necessity, cover 'both the
criminal and the civil aspects of the case.' People vs. Yusico (November 9, 1942), 2 O.G., No. 100, p. 964. See
also: People vs. Moll, 68 Phil., 626, 634; Francisco, Criminal Procedure , 1958 ed., Vol. I, pp. 234, 236.
Correctly, Judge Kapunan observed that as 'the civil action is based solely on the felony committed and of
which the offender might be found guilty, the death of the offender extinguishes the civil liability.' I Kapunan,
Revised Penal Code, Annotated, supra.
Here is the situation obtaining in the present case: Castillo's criminal liability is out. His civil liability is sought
to be enforced by reason of that criminal liability. But then, if we dismiss, as we must, the criminal action and
let the civil aspect remain, we will be faced with the anomalous situation whereby we will be called upon to
clamp civil liability in a case where the source thereof criminal liability does not exist. And, as was well
stated in Bautista, et al. vs. Estrella, et al., CA-G.R. No. 19226-R, September 1, 1958, 'no party can be found
and held criminally liable in a civil suit,' which solely would remain if we are to divorce it from the criminal
proceeding."
This ruling of the Court of Appeals in the Castillo case 3 was adopted by the Supreme Court in the cases of
People of the Philippines v. Bonifacio Alison, et al., 4 People of the Philippines v. Jaime Jose, et al. 5 and
People of the Philippines v. Satorre 6 by dismissing the appeal in view of the death of the accused pending
appeal of said cases. prLL
As held by then Supreme Court Justice Fernando in the Alison case:
"The death of accused-appellant Bonifacio Alison having been established, and considering that there is as yet
no final judgment in view of the pendency of the appeal, the criminal and civil liability of the said accusedappellant Alison was extinguished by his death (Art. 89, Revised Penal Code; Reyes' Criminal Law, 1971 Rev.
Ed., p. 717, citing People v. Castillo and Ofemia C.A., 56 O.G. 4045); consequently, the case against him
should be dismissed."
On the other hand, this Court in the subsequent cases of Buenaventura Belamala v. Marcelino Polinar 7 and
Lamberto Torrijos v. The Honorable Court of Appeals 8 ruled differently. In the former, the issue decided by
this court was: Whether the civil liability of one accused of physical injuries who died before final judgment is
extinguished by his demise to the extent of barring any claim therefor against his estate. It was the contention of
the administrator-appellant therein that the death of the accused prior to the final judgment extinguished all
criminal and civil liabilities resulting from the offense, in view of Article 89, paragraph 1 of the Revised Penal
Code. However, this court ruled therein:
"We see no merit in the plea that the civil liability has been extinguished, in view of the provisions of the Civil
Code of the Philippines of 1950 (Rep. Act No. 386) that became operative eighteen years after the revised Penal
Code. As pointed out by the Court below, Article 33 of the Civil Code establishes a civil action for damages on
account of physical injuries, entirely separate and distinct from the criminal action.
'ART. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and
distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of evidence.'
332
Assuming that for lack of express reservation, Belamala's civil action for damages was to be considered
instituted together with the criminal action still, since both proceedings were terminated without final
adjudication, the civil action of the offended party under Article 33 may yet be enforced separately."
In Torrijos, the Supreme Court held that:
"xxx xxx xxx
It should be stressed that the extinction of civil liability follows the extinction of the criminal liability under
Article 89, only when the civil liability arises from the criminal act as its only basis. Stated differently, where
the civil liability does not exist independently of the criminal responsibility, the extinction of the latter by death,
ipso facto extinguishes the former, provided, of course, that death supervenes before final judgment. The said
principle does not apply in instant case wherein the civil liability springs neither solely nor originally from the
crime itself but from a civil contract of purchase and sale. (Emphasis ours)
xxx xxx xxx"
In the above case, the court was convinced that the civil liability of the accused who was charged with estafa
could likewise trace its genesis to Articles 19, 20 and 21 of the Civil Code since said accused had swindled the
first and second vendees of the property subject matter of the contract of sale. It therefore concluded:
"Consequently, while the death of the accused herein extinguished his criminal liability including fine, his civil
liability based on the laws of human relations remains." LibLex
Thus it allowed the appeal to proceed with respect to the civil liability of the accused, notwithstanding the
extinction of his criminal liability due to his death pending appeal of his conviction.
To further justify its decision to allow the civil liability to survive, the court relied on the following
ratiocination: Since Section 21, Rule 3 of the Rules of Court 9 requires the dismissal of all money claims
against the defendant whose death occurred prior to the final judgment of the Court of First Instance (CFI), then
it can be inferred that actions for recovery of money may continue to be heard on appeal, when the death of the
defendant supervenes after the CFI had rendered its judgment. In such case, explained this tribunal, "the name
of the offended party shall be included in the title of the case as plaintiff-appellee and the legal representative or
the heirs of the deceased-accused should be substituted as defendants-appellants."
It is, thus, evident that as jurisprudence evolved from Castillo to Torrijos, the rule established was that the
survival of the civil liability depends on whether the same can be predicated on sources of obligations other than
delict. Stated differently, the claim for civil liability is also extinguished together with the criminal action if it
were solely based thereon, i.e., civil liability ex delicto.
However, the Supreme Court in People v. Sendaydiego, et al. 10 departed from this long-established principle of
law. In this case, accused Sendaydiego was charged with and convicted by the lower court of malversation thru
falsification of public documents. Sendaydiego's death supervened during the pendency of the appeal of his
conviction.
This court in an unprecedented move resolved to dismiss Sendaydiego's appeal but only to the extent of his
criminal liability. His civil liability was allowed to survive although it was clear that such claim thereon was
exclusively dependent on the criminal action already extinguished. The legal import of such decision was for
the court to continue exercising appellate jurisdiction over the entire appeal, passing upon the correctness of
Sendaydiego's conviction despite dismissal of the criminal action, for the purpose of determining if he is civilly
liable. In doing so, this Court issued a Resolution of July 8, 1977 stating thus: LLjur
"The claim of complainant Province of Pangasinan for the civil liability survived Sendaydiego because his
death occurred after final judgment was rendered by the Court of First Instance of Pangasinan, which convicted
333
him of three complex crimes of malversation through falsification and ordered him to indemnify the Province in
the total sum of P61,048.23 (should be P57,048.23).
The civil action for the civil liability is deemed impliedly instituted with the criminal action in the absence of
express waiver or its reservation in a separate action (Sec. 1, Rule 111 of the Rules of Court). The civil action
for the civil liability is separate and distinct from the criminal action (People and Manuel vs. Coloma, 105 Phil.
1287; Roa vs. De la Cruz, 107 Phil. 8).
When the action is for the recovery of money and the defendant dies before final judgment in the Court of First
Instance, it shall be dismissed to be prosecuted in the manner especially provided in Rule 87 of the Rules of
Court (Sec. 21, Rule 3 of the Rules of Court).
The implication is that, if the defendant dies after a money judgment had been rendered against him by the
Court of First Instance, the action survives him. It may be continued on appeal (Torrijos vs. Court of Appeals,
L-40336, October 24, 1975; 67 SCRA 394).
The accountable public officer may still be civilly liable for the funds improperly disbursed although he has no
criminal liability (U.S. vs. Elvina, 24 Phil. 230; Philippine National Bank vs. Tugab, 66 Phil. 583).
In view of the foregoing, notwithstanding the dismissal of the appeal of the deceased Sendaydiego insofar as his
criminal liability is concerned, the Court Resolved to continue exercising appellate jurisdiction over his possible
civil liability for the money claims of the Province of Pangasinan arising from the alleged criminal acts
complained of, as if no criminal case had been instituted against him, thus making applicable, in determining
the civil liability, Article 30 of the Civil Code . . . and, for that purpose, his counsel is directed to inform this
Court within ten (10) days of the names and addresses of the decedent's heirs or whether or not his estate is
under administration and has a duly appointed judicial administrator. Said heirs or administrator will be
substituted for the deceased insofar as the civil action for the civil liability is concerned (Secs. 16 and 17, Rule
3, Rules of Court)."
Succeeding cases 11 raising the identical issue have maintained adherence to our ruling in Sendaydiego; in
other words, they were a reaffirmance of our abandonment of the settled rule that a civil liability solely
anchored on the criminal (civil liability ex delicto) is extinguished upon dismissal of the entire appeal due to the
demise of the accused. prcd
But was it judicious to have abandoned this old ruling? A re-examination of our decision in Sendaydiego impels
us to revert to the old ruling.
To restate our resolution of July 8, 1977 in Sendaydiego: The resolution of the civil action impliedly instituted
in the criminal action can proceed irrespective of the latter's extinction due to death of the accused pending
appeal of his conviction, pursuant to Article 30 of the Civil Code and Section 21, Rule 3 of the Revised Rules of
Court.
Article 30 of the Civil Code provides:
"When a separate civil action is brought to demand civil liability arising from a criminal offense, and no
criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall
likewise be sufficient to prove the act complained of."
Clearly, the text of Article 30 could not possibly lend support to the ruling in Sendaydiego. Nowhere in its text
is there a grant of authority to continue exercising appellate jurisdiction over the accused's civil liability ex
delicto when his death supervenes during appeal. What Article 30 recognizes is an alternative and separate civil
action which may be brought to demand civil liability arising from a criminal offense independently of any
criminal action. In the event that no criminal proceedings are instituted during the pendency of said civil case,
the quantum of evidence needed to prove the criminal act will have to be that which is compatible with civil
liability and that is, preponderance of evidence and not proof of guilt beyond reasonable doubt. Citing or
invoking Article 30 to justify the survival of the civil action despite extinction of the criminal would in effect
merely beg the question of whether civil liability ex delicto survives upon extinction of the criminal action due
to death of the accused during appeal of his conviction. This is because whether asserted in the criminal action
or in a separate civil action, civil liability ex delicto is extinguished by the death of the accused while his
conviction is on appeal. Article 89 of the Revised Penal Code is clear on this matter: prcd
334
"Art. 89. How criminal liability is totally extinguished. Criminal liability is totally extinguished:
resolution of July 8, 1977, however, failed to take note of this fundamental distinction when it allowed the
survival of the civil action for the recovery of civil liability ex delicto by treating the same as a separate civil
action referred to under Article 30. Surely, it will take more than just a summary judicial pronouncement to
authorize the conversion of said civil action to an independent one such as that contemplated under Article 30.
llcd
1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is
extinguished only when the death of the offender occurs before final judgment;
Ironically however, the main decision in Sendaydiego did not apply Article 30, the resolution of July 8, 1977
notwithstanding. Thus, it was held in the main decision:
xxx xxx xxx"
However, the ruling in Sendaydiego deviated from the expressed intent of Article 89. It allowed claims for civil
liability ex delicto to survive by ipso facto treating the civil action impliedly instituted with the criminal, as one
filed under Article 30, as though no criminal proceedings had been filed but merely a separate civil action. This
had the effect of converting such claims from one which is dependent on the outcome of the criminal action to
an entirely new and separate one, the prosecution of which does not even necessitate the filing of criminal
proceedings. 12 One would be hard put to pinpoint the statutory authority for such a transformation. It is to be
borne in mind that in recovering civil liability ex delicto, the same has perforce to be determined in the criminal
action, rooted as it is in the court's pronouncement of the guilt or innocence of the accused. This is but to render
fealty to the intendment of Article 100 of the Revised Penal Code which provides that "every person criminally
liable for a felony is also civilly liable." In such cases, extinction of the criminal action due to death of the
accused pending appeal inevitably signifies the concomitant extinction of the civil liability. Mors Omnia Solvi.
Death dissolves all things.
In sum, in pursuing recovery of civil liability arising from crime, the final determination of the criminal liability
is a condition precedent to the prosecution of the civil action, such that when the criminal action is extinguished
by the demise of accused-appellant pending appeal thereof, said civil action cannot survive. The claim for civil
liability springs out of and is dependent upon facts which, if true, would constitute a crime. Such civil liability is
an inevitable consequence of the criminal liability and is to be declared and enforced in the criminal proceeding.
This is to be distinguished from that which is contemplated under Article 30 of the Civil Code which refers to
the institution of a separate civil action that does not draw its life from a criminal proceeding. The Sendaydiego
"Sendaydiego's appeal will be resolved only for the purpose of showing his criminal liability which is the basis
of the civil liability for which his estate would be liable." 13
In other words, the Court, in resolving the issue of his civil liability, concomitantly made a determination on
whether Sendaydiego, on the basis of evidenced adduced, was indeed guilty beyond reasonable doubt of
committing the offense charged. Thus, it upheld Sendaydiego's conviction and pronounced the same as the
source of his civil liability. Consequently, although Article 30 was not applied in the final determination of
Sendaydiego's civil liability, there was a reopening of the criminal action already extinguished which served as
basis for Sendaydiego's civil liability. We reiterate: Upon death of the accused pending appeal of his conviction,
the criminal action is extinguished inasmuch as there is no longer a defendant to stand as the accused; the civil
action instituted therein for recovery of civil liability ex delicto is ipso facto extinguished, grounded as it is on
the criminal.
Section 21, Rule 3 of the Rules of Court was also invoked to serve as another basis for the Sendaydiego
resolution of July 8, 1977. In citing Sec. 21, Rule 3 of the Rules of Court, the Court made in the inference that
civil actions of the type involved in Sendaydiego consist of money claims, the recovery of which may be
continued on appeal if defendant dies pending appeal of his conviction by holding his estate liable therefor.
Hence, the Court's conclusion: prcd
"'When the action is for the recovery of money' 'and the defendant dies before final judgment in the court of
First Instance, it shall be dismissed to be prosecuted in the manner especially provided' in Rule 87 of the Rules
of Court (Sec. 21, Rule 3 of the Rules of Court).
335
The implication is that, if the defendant dies after a money judgment had been rendered against him by the
Court of First Instance, the action survives him. It may be continued on appeal."
Sadly, reliance on this provision of law is misplaced. From the standpoint of procedural law, this course taken in
Sendaydiego cannot be sanctioned. As correctly observed by Justice Regalado:
"xxx xxx xxx
I do not, however, agree with the justification advanced in both Torrijos and Sendaydiego which, relying on the
provisions of Section 21, Rule 3 of the Rules of Court, drew the strained implication therefrom that where the
civil liability instituted together with the criminal liabilities had already passed beyond the judgment of the then
Court of First Instance (now the Regional Trial Court), the Court of Appeals can continue to exercise appellate
jurisdiction thereover despite the extinguishment of the component criminal liability of the deceased. This
pronouncement, which has been followed in the Court's judgments subsequent and consonant to Torrijos and
Sendaydiego, should be set aside and abandoned as being clearly erroneous and unjustifiable.
Said Section 21 of Rule 3 is a rule of civil procedure in ordinary civil actions. There is neither authority nor
justification for its application in criminal procedure to civil actions. Nor is there any authority in law for the
summary conversion from the latter category of an ordinary civil action upon the death of the offender. . . ."
Moreover, the civil action impliedly instituted in a criminal proceeding for recovery of civil liability ex delicto
can hardly be categorized as an ordinary money claim such as that referred to in Sec. 21, Rule 3 enforceable
before the estate of the deceased accused.
Ordinary money claims referred to in Section 21, Rule 3 must be viewed in light of the provisions of Section 5,
Rule 86 involving claims against the estate, which in Sendaydiego was held liable for Sendaydiego's civil
liability. "What are contemplated in Section 21 of Rule 3, in relation to Section 5 of Rule 86, 14 are contractual
money claims while the claims involved in civil liability ex delicto may include even the restitution of personal
or real property." 15 Section 5, Rule 86 provides an exclusive enumeration of what claims may be filed against
the estate. These are: funeral expenses, expenses for the last illness, judgments for money and claim arising
from contracts, expressed or implied. It is clear that money claims arising from delict do not form part of this
exclusive enumeration. Hence, there could be no legal basis in (1) treating a civil action ex delicto as an
ordinary contractual money claim referred to in Section 21, Rule 3 of the Rules of Court and (2) allowing it to
survive by filing a claim therefor before the estate of the deceased accused. Rather, it should be extinguished
upon extinction of the criminal action engendered by the death of the accused pending finality of his conviction.
LLjur
Accordingly, we rule: if the private offended party, upon extinction of the civil liability ex delicto desires to
recover damages from the same act or omission complained of, he must subject to Section 1, Rule 111 16 (1985
Rules on Criminal Procedure as amended) file a separate civil action, this time predicated not on the felony
previously charged but on other sources of obligation. The source of obligation upon which the separate action
is premised determines against whom the same shall be enforced.
If the same act or omission complained of also arises from quasi-delict or may, by provision of law, result in an
injury to person or property (real or personal), the separate civil action must be filed against the executor or
administrator 17 of the estate of the accused pursuant to Sec. 1, Rule 87 of the Rules of Court:
"SECTION 1. Actions which may and which may not be brought against executor or administrator. No
action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the
executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate,
or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal,
may be commenced against him."
This is in consonance with our ruling in Belamala 18 where we held that, in recovering damages for injury to
persons thru an independent civil action based on Article 33 of the Civil Code,the same must be filed against the
executor or administrator of the estate of deceased accused and not against the estate under Sec. 5, Rule 86
because this rule explicitly limits the claim to those for funeral expenses, expenses for the last sickness of the
decedent, judgment for money and claims arising from contract, express or implied. Contractual money claims,
we stressed, refers only to purely personal obligations other than those which have their source in delict or tort.
336
Conversely, if the same act or omission complained of also arises from contract, the separate civil action must
be filed against the estate of the accused, pursuant to Sec. 5, Rule 86 of the Rules of Court. cdrep
From this lengthy disquisition, we summarize our ruling herein:
1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil
liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of the accused prior to
final judgment terminates his criminal liability and only the civil liability directly arising from and based solely
on the offense committed, i.e., civil liability ex delicto in senso strictiore."
2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be
predicated on a source of obligation other than delict. 19 Article 1157 of the Civil Code enumerates these other
sources of obligation from which the civil liability may arise as a result of the same act or omission:
3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be
pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate civil action may be enforced either against the
executor/administrator or the estate of the accused, depending on the source of obligation upon which the same
is based as explained above. Cdpr
4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the privateoffended party instituted together therewith the civil action. In such case, the statute of limitations on the civil
liability is deemed interrupted during the pendency of the criminal case, conformably with provisions of Article
1155 21 of the Civil Code,that should thereby avoid any apprehension on a possible privation of right by
prescription. 22
Applying this set of rules to the case at bench, we hold that the death of appellant Bayotas extinguished his
criminal liability and the civil liability based solely on the act complained of, i.e., rape. Consequently, the
appeal is hereby dismissed without qualification.
a) Law 20
WHEREFORE, the appeal of the late Rogelio Bayotas is DISMISSED with costs de oficio.
b) Contracts
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan
and Mendoza, JJ., concur.
c) Quasi-contracts
Cruz, J., is on leave.

||| (People v. Bayotas y Cordova, G.R. No. 102007, [September 2, 1994])
d) . . .
e) Quasi-delicts
FIRST DIVISION
337
[G.R. No. 109454. June 14, 1994.]

JOSE C. SERMONIA, petitioner, vs. HON. COURT OF APPEALS, Eleventh Division, HON. DEOGRACIAS
FELIZARDO, Presiding Judge, Regional Trial Court of Pasig, Br. 151, and JOSEPH SINSAY, respondents.
SYLLABUS
1. CRIMINAL LAW; BIGAMY; DEFINED. Bigamy is an illegal marriage committed by contracting a
second or subsequent marriage before the first marriage has been legally dissolved, or before the absent spouse
has been declared presumptively dead by means of a judgment rendered in the proper proceedings. Bigamy
carries with it the imposable penalty of prision mayor. Being punishable by an afflictive penalty, this crime
prescribes in fifteen (15) years. The fifteen-year prescriptive period commences to run from the day on which
the crime is discovered by the offended party, the authorities, or their agents. . . ."
2. ID.; ID.; RULE ON CONSTRUCTIVE NOTICE; NOT APPLICABLE THERETO. While we concede the
point that the rule on constructive notice in civil cases may be applied in criminal actions if the factual and legal
circumstances so warrant, we agree with the view expounded by the Court of Appeals that it cannot apply in the
crime of bigamy notwithstanding the possibility of its being more favorable to the accused. The appellate court
succinctly explains Argued by the petitioner is that the principle of constructive notice should be applied in
the case at bar, principally citing in support of his stand, the cases of People v. Reyes (175 SCRA 597); and
People v. Dinsay (40 SCRA 50). This Court is of the view that the principle of constructive notice should not be
applied in regard to the crime of bigamy as judicial notice may be taken of the fact that a bigamous marriage is
generally entered into by the offender in secrecy from the spouse of the previous subsisting marriage. Also, a
bigamous marriage is generally entered into in a place where the offender is not known to be still a married
person, in order to conceal his legal impediment to contract another marriage. In the case of real property, the
registration of any transaction involving any right or interest therein is made in the Register of Deeds of the
place where the said property is located. Verification in the office of the Register of Deeds concerned of the
transactions involving the said property can easily be made by any interested party. In the case of a bigamous
marriage, verification by the offended person or the authorities of the same would indeed be quite difficult as
such a marriage may be entered into in a place where the offender is not known to be still a married person. Be
it noted that in the criminal cases cited by the petitioner wherein constructive notice was applied, involved
therein were land or property disputes and certainly, marriage is not property. The non-application to the crime
of bigamy of the principle of constructive notice is not contrary to the well entrenched policy that penal laws
should be construed liberally in favor of the accused. To compute the prescriptive period for the offense of
bigamy from registration thereof would amount to almost absolving the offenders thereof for liability therefor.
While the celebration of the bigamous marriage may be said to be open and made of public record by its
registration, the offender however is not truthful as he conceals from the officiating authority and those
concerned the existence of his previous subsisting marriage. He does not reveal to them that he is still a married
person. He likewise conceals from his legitimate spouse his bigamous marriage. And for these, he contracts the
bigamous marriage in a place where he is not known to be still a married person. And such a place may be
anywhere, under which circumstance, the discovery of the bigamous marriage is rendered quite difficult and
would take time. It is therefore reasonable that the prescriptive period for the crime of bigamy should be
counted only from the day on which the said crime was discovered by the offended party, the authorities or their
agency (sic). Considering such concealment of the bigamous marriage by the offender, if the prescriptive period
for the offense of bigamy were to be counted from the date of registration thereof, the prosecution of the
violators of the said offense would almost be impossible. The interpretation urged by the petitioner would
encourage fearless violations of a social institution cherished and protected by law. To this we may also add that
the rule on constructive notice will make de rigueur the routinary inspection or verification of the marriages
listed in the National Census Office and in various local civil registries all over the country to make certain that
no second or even third marriage has been contracted without the knowledge of the legitimate spouse. This is
too formidable a task to even contemplate.
3. CIVIL LAW; CIVIL REGISTRY; DOCUMENTS THEREIN NOT COVERED BY THE RULE ON
CONSTRUCTIVE NOTICE UNDER PROPERTY REGISTRATION DECREE (P.D. NO. 1529). While Sec.
52 of P.D. 1529 (Property Registration Decree) provides for constructive notice to all persons of every
conveyance, mortgage, lease, lien, attachment, order, judgment, instrument or entry affecting registered land
filed or entered in the office of the Register of Deeds for the province or city where the land to which it relates
lies from the time of such registering, filing or entering, there is no counterpart provision either in Act No. 3753
(Act to Establish a Civil Register) or in Arts. 407 to 413 of the Civil Code, which leads us to the conclusion that
there is no legal basis for applying the constructive notice rule to the documents registered in the Civil Register.
DECISION
BELLOSILLO, J p:
Bigamy is an illegal marriage committed by contracting a second or subsequent marriage before the first
marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by
means of a judgment rendered in the proper proceedings. 1 Bigamy carries with it the imposable penalty of
prision mayor. Being punishable by an afflictive penalty, this crime prescribes in fifteen (15) years. 2 The
338
fifteen-year prescriptive period commences to run from the day on which the crime is discovered by the
offended party, the authorities, or their agents. . . ." 3
That petitioner contracted a bigamous marriage seems impliedly admitted. 4 At least, it is not expressly denied.
Thus the only issue for resolution is whether his prosecution for bigamy is already time-barred, which hinges on
whether its discovery is deemed to have taken place from the time the offended party actually knew of the
second marriage or from the time the document evidencing the subsequent marriage was registered with the
Civil Registry consistent with the rule on constructive notice. cdll
The antecedents: In an information filed in 26 May 1992, petitioner Jose C. Sermonia was charged with bigamy
before the Regional Trial Court of Pasig, Br. 151, for contracting marriage with Ma. Lourdes Unson on 15
February 1975 while his prior marriage to Virginia C. Nievera remained valid and subsisting. 5
Petitioner moved to quash the information on the ground that his criminal liability for bigamy has been
extinguished by prescription.
In the order of 1 October 1992, respondent judge denied the motion to quash. On 27 October 1992, he likewise
denied the motion to reconsider his order of denial.
Petitioner challenged the above orders before the Court of Appeals through a petition for certiorari and
prohibition. In the assailed decision of 21 January 1993, his petition was dismissed for lack of merit. 6
In this recourse, petitioner contends that his criminal liability for bigamy has been obliterated by prescription.
He avers that since the second marriage contract was duly registered with the Office of the Civil Registrar in
1975, 7 such fact of registration makes it a matter of public record and thus constitutes notice to the whole
world. The offended party therefore is considered to have had constructive notice of the subsequent marriage as
of 1975; hence, prescription commenced to run on the day the marriage contract was registered. For this reason,
the corresponding information for bigamy should have been filed on or before 1990 and not only in 1992.
Petitioner likewise takes issue with the "alleged concealment of the bigamous marriage" as declared by the
appellate court, insisting that the second marriage was publicly held at Our Lady of Nativity Church in Marikina
on 15 February 1975, and adding for good measure that from the moment of registration the marriage contract
was open to inspection by any interested person. LLjur
On the other hand, the prosecution maintains that the prescriptive period does not begin from the commission of
the crime but from the time of discovery by complainant which was in July 1991.
While we concede the point that the rule on constructive notice in civil cases may be applied in criminal actions
if the factual and legal circumstances so warrant, 8 we agree with the view expounded by the Court of
Appeals that it cannot apply in the crime of bigamy notwithstanding the possibility of its being more favorable
to the accused. The appellate court succinctly explains
Argued by the petitioner is that the principle of constructive notice should be applied in the case at bar,
principally citing in support of his stand, the cases of People v. Reyes (175 SCRA 597); and People v. Dinsay
(40 SCRA 50).
This Court is of the view that the principle of constructive notice should not be applied in regard to the crime of
bigamy as judicial notice may be taken of the fact that a bigamous marriage is generally entered into by the
offender in secrecy from the spouse of the previous subsisting marriage. Also, a bigamous marriage is generally
entered into in a place where the offender is not known to be still a married person, in order to conceal his legal
impediment to contract another marriage.
In the case of real property, the registration of any transaction involving any right or interest therein is made in
the Register of Deeds of the place where the said property is located. Verification in the office of the Register of
Deeds concerned of the transactions involving the said property can easily be made by any interested party. In
the case of a bigamous marriage, verification by the offended person or the authorities of the same would
indeed be quite difficult as such a marriage may be entered into in a place where the offender is not known to be
still a married person. LLphil
339
Be it noted that in the criminal cases cited by the petitioner wherein constructive notice was applied, involved
therein were land or property disputes and certainly, marriage is not property.
The non-application to the crime of bigamy of the principle of constructive notice is not contrary to the well
entrenched policy that penal laws should be construed liberally in favor of the accused. To compute the
prescriptive period for the offense of bigamy from registration thereof would amount to almost absolving the
offenders thereof for liability therefor. While the celebration of the bigamous marriage may be said to be open
and made of public record by its registration, the offender however is not truthful as he conceals from the
officiating authority and those concerned the existence of his previous subsisting marriage. He does not reveal
to them that he is still a married person. He likewise conceals from his legitimate spouse his bigamous marriage.
And for these, he contracts the bigamous marriage in a place where he is not known to be still a married person.
And such a place may be anywhere, under which circumstance, the discovery of the bigamous marriage is
rendered quite difficult and would take time. It is therefore reasonable that the prescriptive period for the crime
of bigamy should be counted only from the day on which the said crime was discovered by the offended party,
the authorities or their agency (sic).
Considering such concealment of the bigamous marriage by the offender, if the prescriptive period for the
offense of bigamy were to be counted from the date of registration thereof, the prosecution of the violators of
the said offense would almost be impossible. The interpretation urged by the petitioner would encourage
fearless violations of a social institution cherished and protected by law. 9
To this we may also add that the rule on constructive notice will make de rigueur the routinary inspection or
verification of the marriages listed in the National Census Office and in various local civil registries all over the
country to make certain that no second or even third marriage has been contracted without the knowledge of the
legitimate spouse. This is too formidable a task to even contemplate.
Finally, petitioner would want us to believe that there was no concealment at all because his marriage contract
with Ms. Unson was recorded in the Civil Registry which is open to all and sundry for inspection. We cannot go
along with his argument because why did he indicate in the marriage contract that he was "single" thus
obviously hiding his true status as a married man? Or for that matter, why did he not simply tell his first wife
about the subsequent marriage in Marikina so that everything would be out in the open. The answer is obvious:
He knew that no priest or minister would knowingly perform or authorize a bigamous marriage as this would
subject him to punishment under the Marriage Law. 10 Obviously, petitioner had no intention of revealing his
duplicity to his first spouse and gambled instead on the probability that she or any third party would ever go to
the local civil registrar to inquire. In the meantime, through the simple expedience of having the second
marriage recorded in the local civil registry, he has set into motion the running of the fifteen-year prescriptive
period against the unwary and the unsuspecting victim of his philandering.
Were we to put our imprimatur to the theory advanced by petitioner, in all likelihood we would be playing right
into the hands of philanderers. For we would be equating the contract of marriage with ordinary deeds of
conveyance and other similar documents without due regard for the stability of marriage as an inviolable social
institution, the preservation of which is a primary concern of our society.
WHEREFORE, finding no reversible error in the questioned decision of the Court of Appeals, the same is
AFFIRMED. LLphil
SO ORDERED.
Cruz, Davide, Jr., Bellosillo, Quiason and Kapunan, JJ., concur.
||| (Sermonia v. Court of Appeals, G.R. No. 109454, [June 14, 1994])
More importantly, while Sec. 52 of P.D. 1529 (Property Registration Decree) provides for constructive notice to
all persons of every conveyance, mortgage, lease, lien, attachment, order, judgment, instrument or entry
affecting registered land filed or entered in the office of the Register of Deeds for the province or city where the
land to which it relates lies from the time of such registering, filing or entering, there is no counterpart provision
either in Act No. 3753 (Act to Establish a Civil Register) or in Arts. 407 to 413 of the Civil Code, which leads
us to the conclusion that there is no legal basis for applying the constructive notice rule to the documents
registered in the Civil Register. Cdpr
340
SYLLABUS
SECOND DIVISION
[G.R. No. L-41692. April 30, 1976.]
EUGENIO CABRAL, petitioner, vs. HON. BENIGNO M. PUNO, Judge of the Court of First Instance of
Bulacan, PROVINCIAL FISCAL OF BULACAN, and SILVINO SAN DIEGO, respondents.
1. CRIMINAL LAW; PRESCRIPTION OF OFFENSES; ORDER SUSTAINING A MOTION TO QUASH

BASED ON PRESCRIPTION BARS ANOTHER PROSECUTION FOR THE SAME OFFENSE. Under
Sections 2(f) and 8, Rule 117, Revised Rules of Court, an order sustaining a motion to quash based on
prescription of offenses is a bar to another prosecution for the same offense.
2. ID.; ID.; PRESCRIPTION IS A MODE OF EXTINGUISHING CRIMINAL LIABILITY. Article 89 of the

Revised Penal Code provides that prescription of the crime is one of the grounds for total extinction of criminal
liability.
Arturo Agustines for petitioner.

Celso P. Poblete for private respondent.
SYNOPSIS
On September 24, 1974, petitioner was charged in court with the crime of falsification of public document for
allegedly falsifying on August 14, 1948 the signature of private respondent in a deed of sale of a parcel of land.
On motion of petitioner, the trial court dismissed the information on the ground of prescription. The private
prosecutor moved to reconsider the order of dismissal. The fiscal, whose comment was sought by the trial court,
expressed the view that the crime has not prescribed. Thereafter the trial court reinstated the information.
Petitioner moved for reconsideration on the ground that; (a) the judgment of acquittal which became final upon
final promulgation can no longer be recalled for correction or amendment; and (b) by instituting the civil action
for recovery of the same parcel of land against petitioner, respondent lost his right to intervene in the criminal
case. The trial court denied the motion, hence this petition for certiorari and prohibition.
The Supreme Court held that an order sustaining a motion to quash based on prescription is a bar to another
prosecution for the same offense; that a motion for reconsideration filed by the offended party through the
private prosecutor does not stop the running of the period to appeal because the prosecution of criminal cases is
under the control of the fiscal and only the motion for reconsideration or appeal made by the fiscal can interrupt
the period of appeal; and that private respondent by instituting the civil action based on the same averments has
no right to intervene in they criminal case.
3. ID.; ID.; FALSIFICATION PRESCRIBES IN TEN (10) YEARS. The crime of falsification under Article
172, sub-paragraphs (1) and (2) of the Revised Penal Code, which carries an imposable penalty of prision
correccional in its medium and maximum periods and a fine of not more than P5,000.00 prescribes in ten years.
4. ID.; JURISDICTION; COURTS LACK JURISDICTION TO SET ASIDE ORDERS ALREADY FINAL
AND EXECUTORY. Where the trial court issued an order setting aside its own order dismissing the criminal
case nine (9) months thereafter, it was held that the second order was null and void for want of jurisdiction, as
the first order had already become final and executory. While the court may find it necessary to hear the views
of a private prosecutor before acting on a motion to dismiss filed by the fiscal, it does not follow that it can set
aside its order dismissing the case even if the same has already become final.
5. ID.; JUDGMENTS; FINAL AND EXECUTORY JUDGMENTS CAN NO LONGER BE MODIFIED. A

judgment in a criminal case becomes final after lapse of the period for perfecting appeal and the sentence
having become final, no court, not even the highest Tribunal, can modify it even if erroneous.
6. ID.; ID.; REGLEMENTARY PERIOD TO APPEAL; MADE BY OFFENDED PARTY DOES NOT
SUSPEND THE RUNNING OF THE REGLEMENTARY PERIOD TO APPEAL. A motion for
reconsideration filed by the offended party through the private prosecutor, within the reglementary fifteen-day
period to appeal does not stop the running of the period to appeal because he has no legal personality to appeal
341
or file the motion for reconsideration on his behalf. Prosecution of criminal offense through the private
prosecutor is still under the direction and control of the Fiscal, and only the motion for reconsideration or appeal
filed by the Fiscal could interrupt the period to appeal.
7. ID.; ID.; APPEALS; OFFENDED PARTY'S RIGHT TO APPEAL ABOLISHED BY NEW RULES OF
COURT. The right of the offended party to appeal is recognized under the old Code of Criminal Procedure.
But under section 4, Rule 110 which provides that the prosecution shall be under the direction and control of the
fiscal without the limitation imposed by Section 107 of General Order No. 58 subjecting the direction of the
prosecution to the right "of the person injured to appeal from any decision of the court denying him legal right",
said right to appeal is no longer recognized in the offended party.
8. ID.; ID.; ID.; FISCALS; CRIMINAL CASE PROSECUTED UNDER DIRECTION AND CONTROL OF
FISCAL. Under the new Rules of Court the fiscal has the direction and control of the prosecution, without
being subject to the right of intervention on the part of the offended party. To permit an offended party to appeal
from an order dismissing a criminal case upon petition of the fiscal would be tantamount to giving said party as
much right to the direction and control of a criminal proceeding as that of the fiscal.
9. ID.; INTERVENTION; OFFENDED PARTY HAS NO RIGHT TO INTERVENE IN CRIMINAL CASE

WHERE HE HAS FILED A SEPARATE CIVIL ACTION. Where it appears that prior to the filing of the
criminal case for falsification, the offended party had a civil action arising out of they same alleged forged
document against the same defendant, the offended party has no right to intervene in the prosecution of the
criminal case, and consequently he cannot ask for the reconsideration of the order of dismissal thereof, or
appeal from said order.
DECISION
On the complaint of private respondent Silvino San Diego, the Provincial Fiscal filed an Information on
September 24, 1974 with respondent court, accusing petitioner Eugenio Cabral of the crime of Falsification of
Public Document for allegedly falsifying on August 14, 1948 the signature of Silvino San Diego in a deed of
sale of a parcel of land. Before arraignment, petitioner moved to quash the Information on the ground of
prescription of the crime charged, as the said document of sale of lot No. 378-C was notarized on August 14,
1948, registered with the Register of Deeds of Bulacan on August 26, 1948 and as a consequence the original
certificate of title was cancelled and a new transfer certificate of title issued, and since then Eugenio Cabral had
publicly and continuously possessed said property and exercised acts of ownership thereon, which facts are
apparently admitted in the letter of San Diego's lawyer to Cabral on September 17, 1953. After hearing said
motion, Judge Juan F. Echiverri, in a Resolution dated March 25, 1975, granted the motion to quash and
dismissed the Information on the ground of prescription. The order of dismissal was predicated upon said
court's finding that the factual averments contained in the motion to quash were supported by the evidence.
Private prosecutor, who was not present during the hearing of the motion to quash, filed a motion dated April 8,
1975, for the reconsideration of said Resolution. This was opposed by petitioner on the ground that San Diego
can no longer intervene in the criminal case, having filed a civil action in April 1974 against the same accused
(Eugenio Cabral) on the basis of the same factual averments contained in the criminal Information. Acting on
the motion for reconsideration, respondent Judge Benigno M. Puno, now presiding, ordered on May 12, 1975
the Fiscal to "make known his position to the Court." In compliance with said Order, the Fiscal submitted his
comment dated May 19, 1975, expressing the view that the crime has not prescribed as Silvino San Diego stated
that he only discovered the crime sometime in October 1970, and ". . . that, in the interest of justice,
arraignment and trial is proper to ventilate the respective evidence of both parties in their total meaning and
import in determining once and for all the direction and thrust of these evidence of both parties."
Two (2) days later on, or on May 21, 1975, respondent Judge set aside the Resolution of March 25, 1975, and
reinstated the Information. Petitioner moved for reconsideration of the Order on the ground that (a) "the
judgment of acquittal which became final immediately upon promulgation and could not, therefore, be recalled
for correction or amendment''; and (b) by instituting Civil Case No. 120-V-74, respondent San Diego lost his
right to intervene in the prosecution of the criminal case. This motion was denied, as well as the second motion
for reconsideration, hence this petition, raising the issue of whether or not the trial court had jurisdiction to set
aside its Resolution of March 25, 1975.
ANTONIO, J p:
Certiorari and prohibition to nullify the order of respondent Judge dated May 21, 1975, reviving the Information
in Criminal Case No. B-537-74 of the Court of First Instance of Bulacan, Baliwag Branch, and to prohibit said
court from conducting further proceedings on the case.
The issue being purely legal and considering that the matter has been amply discussed in the pleadings, 1 this
case was deemed submitted for decision without need of memoranda.
342
The Solicitor General was required to appear in this case, and he recommends giving due course to the petition
and the reversal of the challenged order. According to the Solicitor General, the Resolution of March 25, 1975
dismissing the Information on the ground of prescription of the crime became a bar to another charge of
falsification, including the revival of the Information. This is more so, because said Resolution had already
become final and executory, inasmuch as the Fiscal neither sought its reconsideration nor appealed therefrom
within the reglementary period of fifteen (15) days after his receipt of a copy thereof on March 31, 1975. When
the Fiscal moved to reinstate the case on May 21, 1975, or about two (2) months from receipt of a copy of the
order of dismissal, the same had already long been final.
We agree with the Solicitor General. The Rules of Court is explicit that an order sustaining a motion to quash
based on prescription is a bar to another prosecution for the same offense. 2 Article 89 of the Revised Penal
Code also provides that "prescription of the crime" is one of the grounds for "total extinction of criminal
liability." Petitioner was charged with the crime of falsification under Article 172, sub-paragraphs (1) and (2) of
the Revised Penal Code, which carries an imposable penalty of prision correccional in its medium and
maximum periods and a fine of not more than P5,000.00. This crime prescribes in ten (10) years. 3 Here, San
Diego had actual if not constructive notice of the alleged forgery after the document was registered in the
Register of Deeds on August 26, 1948.
In Pangan v. Pasicolan, 4 where the trial court set aside its own order dismissing the criminal case nine (9)
months thereafter, this Court held that the order was null and void for want of jurisdiction, as the first order had
already become final and executory.
"Petition for certiorari to set aside the order of the Court of First Instance of Pampanga setting aside its order of
September 10, 1956 dismissing the case against petitioners nine months thereafter, or on June 11, 1957. The
issue is whether or not the court had jurisdiction to enter that order. While the court may find it necessary to
hear the views of a private prosecutor before acting on a motion to dismiss filed by the fiscal, it does not follow
that it can set aside its order dismissing the case even if the same has already become final. There is no law
which requires notice to a private prosecutor, because under the rules all criminal actions are prosecuted 'under
the direction and control of the fiscal' (Section 4, Rule 106). It appearing that the order in question was already
final, the court acted without jurisdiction in issuing the subsequent order."
court, not even this high Tribunal, can modify it even if erroneous . . .". We hold that these rulings are applicable
to the case at bar.
While it is true that the offended party, Silvino San Diego, through the private prosecutor, filed a motion for
reconsideration within the reglementary fifteen-day period, such move did not stop the running of the period for
appeal. He did not have the legal personality to appeal or file the motion for reconsideration on his behalf. The
prosecution in a criminal case through the private prosecutor is under the direction and control of the Fiscal, and
only the motion for reconsideration or appeal filed by the Fiscal could have interrupted the period for appeal. 6
"The right of the offended party to appeal is recognized under the old Code of Criminal Procedure. Under
Section 4 of Rule 110 which provides that the prosecution shall be 'under the direction and control of the fiscal'
without the limitation imposed by section 107 of General Order No. 58 subjecting the direction of the
prosecution to the right 'of the person injured to appeal from any decision of the court denying him a legal right',
said right to appeal by an offended party from an order of dismissal is no longer recognized in the offended
party. . . . (U)nder the new Rules of Court, the fiscal has the direction and control of the prosecution, without
being subject to the right of intervention on the part of the offended party. To permit an offended party to appeal
from an order dismissing a criminal case upon petition of the fiscal would be tantamount to giving said party as
much right to the direction and control of a criminal proceeding as that of the fiscal." 7
More important, he lost his right to intervene in the criminal case. Prior to the filing of the criminal case on
September 24, 1974, the spouses Silvino San Diego and Eugenia Alcantara, on the basis of the same allegations
that San Diego's signature on the deed of August 14, 1948 was a forgery, filed on May 2, 1974 an action against
Eugenio Cabral and Sabina Silvestre, with the Bulacan Court of First Instance (Civil Case No. 120-V-74) for the
recovery of the same property and damages. It appearing, therefore, from the record that at the time the order of
dismissal was issued there was a pending civil action arising out of the same alleged forged document filed by
the offended party against the same defendant, the offended party has no right to intervene in the prosecution of
the criminal case, and consequently cannot ask for the reconsideration of the order of dismissal, or appeal from
said order. 8
WHEREFORE, the petition is hereby granted, and the Orders of May 21, 1975, August 4, 1975 and September
3, 1975, of respondent Judge are hereby set aside. No pronouncement as to costs.
And likewise, in People v. Sanchez, 5 it was held that "a judgment in a criminal case becomes final after the
lapse of the period for perfecting an appeal, . . . . Under the circumstances, the sentence having become final, no
Fernando, C. J., Barredo (Chairman), Aquino and Concepcion, Jr., JJ., concur.
343
||| (Cabral v. Puno, G.R. No. L-41692, [April 30, 1976], 162 PHIL 814-824)
EN BANC
[G.R. No. 102342. July 3, 1992.]
LUZ M. ZALDIVIA, petitioner, vs. HON. ANDRES B. REYES, JR., in his capacity as Acting Presiding Judge
of the Regional Trial Court, Fourth Judicial Region, Branch 76, San Mateo, Rizal, and PEOPLE OF THE
PHILIPPINES, respondents.
Hector B. Almeyda for petitioner.
SYLLABUS
1. REMEDIAL LAW; PRESCRIPTION; 1985 RULES ON CRIMINAL PROCEDURE; PRESCRIPTIVE
PERIOD DOES NOT APPLY TO OFFENSES SUBJECT TO SUMMARY PROCEDURE. Section 1, Rule
110 of the 1985 Rules on Criminal Procedure meaningfully begins with the phrase, "for offenses not subject to
the rule on summary procedure in special cases," which plainly signifies that the section does not apply to
offenses which are subject to summary procedure. The phrase "in all cases" appearing in the last paragraph
obviously refers to the cases covered by the Section, that is, those offenses not governed by the Rule on
Summary Procedure. This interpretation conforms to the canon that words in a statute should be read in relation
to and not isolation from the rest of the measure, to discover the true legislative intent.
2. ID.; ID.; ID.; ID.; SECTION (B) REFERS TO SECTION 32(2) OF BP NO. 129. Where paragraph (b) of
the section does speak of "offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal
Circuit Trial Courts," the obvious reference is to Section 32(2) of B.P. No. 129, vesting in such courts:
Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years and
two months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless of
other imposable accessory or other penalties, including the civil liability arising from such offenses or
predicated thereon, irrespective of kind, nature, value, or amount thereof; Provided, however, That in offenses
involving damage to property through criminal negligence they shall have exclusive original jurisdiction where
the imposable fine does not exceed twenty thousand pesos. These offenses are not covered by the Rule on
Summary Procedure.
3. ID.; ID.; RULE ON SUMMARY PROCEDURE; APPLIES TO VIOLATIONS OF MUNICIPAL OR CITY

ORDINANCES. As it is clearly provided in the Rule on Summary Procedure that among the offenses it
covers are violations of municipal or city ordinances, it should follow that the charge against the petitioner,
which is for violation of a municipal ordinance of Rodriguez, is governed by that rule and not Section 1 of Rule
110.
4. ID.; ID.; ID.; PRESCRIPTIVE PERIOD STARTS ONLY WHEN THE CASE IS ACTUALLY FILED IN
COURT. Under Section 9 of the Rule on Summary Procedure, "the complaint or information shall be filed
directly in court without need of a prior preliminary examination or preliminary investigation." Both parties
agree that this provision does not prevent the prosecutor from conducting a preliminary investigation if he wants
to. However, the case shall be deemed commenced only when it is filed in court, whether or not the prosecution
decides to conduct a preliminary investigation. This means that the running of the prescriptive period shall be
halted on the date the case is actually filed in court and not on any date before that.
5. ID.; ID.; ID.; ID.; INTERPRETATION IN CONSONANCE WITH ACT NO. 3326. This interpretation is
in consonance with Act No. 3326 which says that the period of prescription shall be suspended "when
proceedings are instituted against the guilty party." The proceedings referred to in Section 2 thereof are "judicial
proceedings," contrary to the submission of the Solicitor General that they include administrative proceedings.
His contention is that we must not distinguish as the law does not distinguish. As a matter of fact, it does.
6. ID.; ID.; ID.; SPECIAL LAW PREVAILS OVER GENERAL LAW; PRESCRIPTION IN CRIMINAL
CASES IS A SUBSTANTIVE RIGHT. The Court feels that if there be a conflict between the Rule on
Summary Procedure and Section 1 of Rule 110 of the Rules on Criminal Procedure, the former should prevail as
the special law. And if there be a conflict between Act No. 3326 and Rule 110 of the Rules on Criminal
Procedure, the latter must again yield because this Court, in the exercise of its rule-making power, is not
allowed to "diminish, increase or modify substantive rights" under Article VIII, Section 5(5) of the Constitution.
Prescription in criminal cases is a substantive right.
344
7. ID.; ID.; CRIME PRESCRIBES IF THE PROSECUTOR DELAYS INTENTIONALLY OR NOT THE
INSTITUTION OF NECESSARY JUDICIAL PROCEEDINGS. The Court realizes that under the above
interpretation, a crime may prescribe even if the complaint is filed seasonably with the prosecutor's office if,
intentionally or not, he delays the institution of the necessary judicial proceedings until it is too late. However,
that possibility should not justify a misreading of the applicable rules beyond their obvious intent as reasonably
deduced from their plain language. The remedy is not a distortion of the meaning of the rules but a rewording
thereof to prevent the problem here sought to be corrected.
SECTION 1. Scope. This rule shall govern the procedure in the Metropolitan Trial Courts, the Municipal
Trial Courts, and the Municipal Circuit Trial Court in the following cases:
xxx xxx xxx
DECISION
B. Criminal Cases:
CRUZ, J p:
1. Violations of traffic laws, rules and regulations;
The Court is asked to determine the applicable law specifying the prescriptive period for violations of municipal
ordinances.
2. Violations of rental law;
The petitioner is charged with quarrying for commercial purposes without a mayor's permit in violation of
Ordinance No. 2, Series of 1988, of the Municipality of Rodriguez, in the Province of Rizal. LibLex
The offense was allegedly committed on May 11, 1990. 1 The referral-complaint of the police was received by
the Office of the Provincial Prosecutor of Rizal on May 30, 1990. 2 The corresponding information was filed
with the Municipal Trial Court of Rodriguez on October 2, 1990. 3
3. Violations of municipal or city ordinances; prLL
4. All other criminal cases where the penalty prescribed by law for the offense charged does not exceed six
months imprisonment, or a fine of one thousand pesos (P1,000.00), or both, irrespective of other impossible
penalties, accessory or otherwise, or of the civil liability arising therefrom. . . ." (Emphasis supplied.)
xxx xxx xxx

The petitioner moved to quash the information on the ground that the crime had prescribed, but the motion was
denied. On appeal to the Regional Trial Court of Rizal, the denial was sustained by the responded judge. 4
In the present petition for review on certiorari, the petitioner first argues that the charge against her is governed
by the following provisions of the Rule on Summary Procedure:
SECTION 9. How commenced. The prosecution of criminal cases falling within the scope of this Rule shall
be either by complaint or by information filed directly in court without need of a prior preliminary examination
or preliminary investigation: Provided, however, That in Metropolitan Manila and chartered cities, such cases
shall be commenced only by information; Provided, further, That when the offense cannot be prosecuted de
officio, the corresponding complaint shall be signed and sworn to before the fiscal by the offended party.
345
She then invokes Act No. 3326, as amended, entitled "An Act to Establish Periods of Prescription for Violations
Penalized by Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin to Run,"
reading as follows:
SECTION 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in
accordance with the following rules: . . . Violations penalized by municipal ordinances shall prescribe after two
months.
SECTION 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if
the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin
to run again if the proceedings are dismissed for reasons not constituting jeopardy.
SECTION 3. For the purposes of this Act, special acts shall be acts defining and penalizing violations of law
not included in the Penal Code." (Emphasis supplied)
Her conclusion is that as the information was filed way beyond the two-month statutory period from the date of
the alleged commission of the offense, the charge against her should have been dismissed on the ground of
prescription.
For its part, the prosecution contends that the prescriptive period was suspended upon the filing of the complaint
against her with the Office of the Provincial Prosecutor. Agreeing with the respondent judge, the Solicitor
General also invokes Section 1, Rule 110 of the 1985 Rules on Criminal Procedure, providing as follows:
LexLib
SECTION 1. How Instituted. For offenses not subject to the rule on summary procedure in special cases, the
institution of criminal action shall be as follows:
a) For offenses falling under the jurisdiction of the Regional Trial Court, by filing the complaint with the
appropriate officer for the purpose of conducting the requisite preliminary investigation therein;
b) For offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts,
by filing the complaint directly with the said courts, or a complaint with the fiscal's office. However, in
Metropolitan Manila and other chartered cities, the complaint may be filed only with the office of the fiscal.
In all cases, such institution interrupts the period of prescription of the offense charged. (Emphasis supplied.)
Emphasis is laid on the last paragraph. The respondent maintains that the filing of the complaint with the
Officer of the Provincial Prosecutor comes under the phrase "such institution" and that the phrase "in all cases"
applies to all cases, without distinction, including those falling under the Rule on Summary Procedure.
The said paragraph, according to the respondent, was an adoption of the following dictum in Francisco v. Court
of Appeals: 5
In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this Court has reexamined the question and, after mature consideration, has arrived at the conclusion that the true doctrine is,
and should be, the one established by the decisions holding that the filing of the complaint in the Municipal
Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt
the period of prescription of the criminal responsibility, even if the court where the complaint or information is
filed can not try the case on its merits. Several reasons buttress this conclusion: first, the text of Article 91 of the
Revised Penal Code, in declaring that the period of prescription "shall be interrupted by the filing of the
complaint or information" without distinguishing whether the complaint is filed in the court for preliminary
examination or investigation merely, or for action on the merits. Second, even if the court where the complaint
or information is filed may only proceed to investigate the case, its actuations already represent the initial step
of the proceedings against the offender. Third, it is unjust to deprive the injured party of the right to obtain
346
vindication on account of delays that are not under his control. All that the victim of the offense may do on his
part to initiate the prosecution is to file the requisite complaint.
It is important to note that this decision was promulgated on May 30, 1983, two months before the promulgation
of the Rule on Summary Procedure on August 1, 1983. On the other hand, Section 1 of Rule 110 is new, having
been incorporated therein with the revision of the Rules on Criminal Procedure on January 1, 1985, except for
the last paragraph, which was added on October 1, 1988.
That section meaningfully begins with the phrase, "for offenses not subject to the rule on summary procedure in
special cases," which plainly signifies that the section does not apply to offenses which are subject to summary
procedure. The phrase "in all cases" appearing in the last paragraph obviously refers to the cases covered by the
Section, that is, those offenses not governed by the Rule on Summary Procedure. This interpretation conforms
to the canon that words in a statute should be read in relation to and not isolation from the rest of the measure,
to discover the true legislative intent. cdphil
As it is clearly provided in the Rule on Summary Procedure that among the offenses it covers are violations of
municipal or city ordinances, it should follow that the charge against the petitioner, which is for violation of a
municipal ordinance of Rodriguez, is governed by that rule and not Section 1 of Rule 110.
Where paragraph (b) of the section does speak of "offenses falling under the jurisdiction of the Municipal Trial
Courts and Municipal Circuit Trial Courts," the obvious reference is to Section 32 (2) of B.P. No. 129, vesting
in such courts:
(2) Exclusive original jurisdiction over all offenses punishable with imprisonment of not exceeding four years
and two months, or a fine of not more than four thousand pesos, or both such fine and imprisonment, regardless
of other imposable accessory or other penalties, including the civil liability arising from such offenses or
predicated thereon, irrespective of kind, nature, value, or amount thereof; Provided, however, That in offenses
involving damage to property through criminal negligence they shall have exclusive original jurisdiction where
the imposable fine does not exceed twenty thousand pesos.
These offenses are not covered by the Rules on Summary Procedure.
Under Section 9 of the Rule on Summary Procedure, "the complaint or information shall be filed directly in
court without need of a prior preliminary examination or preliminary investigation." 6 Both parties agree that
this provision does not prevent the prosecutor from conducting a preliminary investigation if he wants to.
However, the case shall be deemed commenced only when it is filed in court, whether or not the prosecution
decides to conduct a preliminary investigation. This means that the running of the prescriptive period shall be
halted on the date the case is actual filed in court and not on any date before that.
This interpretation is in consonance with the afore-quoted Act No. 3326 which says that the period of
prescription shall be suspended "when proceedings are instituted against the guilty party." The proceedings
referred to in Section 2 thereof are "judicial proceedings," contrary to the submission of the Solicitor General
that they include administrative proceedings. His contention is that we must not distinguish as the law does not
distinguish. As a matter of fact, it does.
At any rate, the Court feels that if there be a conflict between the Rule on Summary Procedure and Section 1 of
Rule 110 of the Rules on Criminal Procedure, the former should prevail as the special law. And if there be a
conflict between Act No. 3326 and Rule 110 of the Rules on Criminal Procedure, the latter must again yield
because this Court, in the exercise of its rule-making power, is not allowed to "diminish, increase or modify
substantive rights" under Article VIII, Section 5 (5) of the Constitution Prescription in criminal cases is a
substantive right. 7
Going back to the Francisco case, we find it not irrelevant to observe that the decision would have been
conformable to Section 1, Rule 110, as the offense involved was grave oral defamation punishable under the
Revised Penal Code with arresto mayor in its maximum period to prision correccional in its minimum period.
By contrast, the prosecution in the instant case is for violation of a municipal ordinance, for which the penalty
cannot exceed six months, 8 and is thus covered by the Rule on Summary Procedure.
The Court realizes that under the above interpretation, a crime may prescribe even if the complaint is filed
seasonably with the prosecutor's office if, intentionally or not, he delays the institution of the necessary judicial
proceedings until it is too late. However, that possibility should not justify a misreading of the applicable rules
347
beyond their obvious intent as reasonably deduced from their plain language. The remedy is not a distortion of
the meaning of the rules but a rewording thereof to prevent the problem here sought to be corrected. LexLib
DECISION
AUSTRIA-MARTINEZ, J p:
Our conclusion is that the prescriptive period for the crime imputed to the petitioner commenced from its
alleged commission on May 11, 1990, and ended two months thereafter, on July 11, 1990, in accordance with
Section 1 of Act No. 3326. It was not interrupted by the filing of the complaint with the Office of the Provincial
Prosecutor on May 30, 1990, as this was not a judicial proceeding. The judicial proceeding that could have
interrupted the period was the filing of the information with the Municipal Trial Court of Rodriguez, but this
was done only on October 2, 1990, after the crime had already prescribed.
WHEREFORE, the petition is GRANTED, and the challenged Order dated October 2, 1991 is SET ASIDE.
Criminal Case No. 90-089 in the Municipal Trial Court of Rodriguez, Rizal, is hereby DISMISSED on the
ground of prescription. It is so ordered.
The Presidential Commission on Good Government 1 (petitioner) filed the herein Petition for Certiorari under
Rule 65 of the Rules of Court assailing the Resolution 2 dated May 21, 1999 of Ombudsman Aniano A.
Desierto in OMB No. 0-95-0890 which dismissed petitioner's criminal complaint for violation of Section 3 (e)
and (g) of Republic Act (R.A.) No. 3019 3 against concerned members of Philippine National Bank (PNB)
Board of Directors and Northern Cotabato Sugar Industries, Inc. (NOCOSII) officers, namely: Reynaldo
Tuason, Carlos Cajelo, Jose Barquillo, Jr., Loreto Solsona, Primicias Banaga and John Does (respondents); and
the Order 4 dated July 23, 1999 which denied petitioner's Motion for Reconsideration.
The facts:
Narvasa, C .J ., Gutierrez, Jr., Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr.,
Romero, Nocon and Bellosillo, JJ ., concur.
||| (Zaldivia v. Reyes, Jr., G.R. No. 102342, [July 3, 1992])
On October 8, 1992, then President Fidel V. Ramos issued Administrative Order No. 13 creating the Presidential
Ad Hoc Fact-Finding Committee on Behest Loans (Committee) which was tasked to inventory all behest loans,
determine the parties involved and recommend whatever appropriate actions to be pursued thereby.
On November 9, 1992, President Ramos issued Memorandum Order No. 61 expanding the functions of the
Committee to include the inventory and review of all non-performing loans, whether behest or non-behest.
THIRD DIVISION
[G.R. No. 140231. July 9, 2007.]
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), represented by ORLANDO L.
SALVADOR, petitioner, vs. HON. ANIANO A. DESIERTO, Office of the Ombudsman-Manila, CONCERNED
MEMBERS OF THE PNB BOARD OF DIRECTORS, REYNALDO TUASON, CARLOS CAJELO, JOSE
BARQUILLO, JR., LORETO SOLSONA, PRIMICIAS BANAGA, JOHN DOES, and NORTHERN
COTABATO SUGAR INDUSTRIES, INC. (NOCOSII), respondents.
The Memorandum set the following criteria to show the earmarks of a "behest loan," to wit: "a) it is
undercollaterized; b) the borrower corporation is undercapitalized; c) a direct or indirect endorsement by high
government officials like presence of marginal notes; d) the stockholders, officers or agents of the borrower
corporation are identified as cronies; e) a deviation of use of loan proceeds from the purpose intended; f) the use
of corporate layering; g) the non-feasibility of the project for which financing is being sought; and, h) the
extraordinary speed in which the loan release was made." THIAaD
348
Among the accounts referred to the Committee's Technical Working Group (TWG) were the loan transactions
between NOCOSII and PNB.
After it had examined and studied all the documents relative to the said loan transactions, the Committee
classified the loans obtained by NOCOSII from PNB as behest because of NOCOSII's insufficient capital and
inadequate collaterals. Specifically, the Committee's investigation revealed that in 1975, NOCOSII obtained
loans by way of Stand-By Letters of Credit from the PNB; that NOCOSII was able to get 155% loan value from
the offered collateral or an excess of 85% from the required percentage limit; that the plant site offered as one of
the collaterals was a public land contrary to the General Banking Act; that by virtue of the marginal note of then
President Marcos in the letter of Cajelo, NOCOSII was allowed to use the public land as plant site and to
dispense with the mortgage requirement of PNB; that NOCOSII's paid-up capital at the time of the approval of
the guaranty was only P2,500,000.00 or only about 6% of its obligation.
Based on the Sworn Statement of PCGG consultant Orlando Salvador, petitioner filed with the Office of the
Ombudsman the criminal complaint against respondents. Petitioner alleges that respondents violated the
following provisions of Section 3 (e) and (g) of R.A. No. 3019:
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:
g. Entering, on behalf of the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.
The respondents failed to submit any responsive pleading before the the Ombudsman, prompting Graft
Investigator Officer (GIO) I Melinda S. Diaz-Salcedo to resolve the case based on the available evidence.
In a Resolution dated January 12, 1998 in OMB-0-95-0890, GIO Diaz-Salcedo recommended the dismissal of
the case on the ground of insufficiency of evidence or lack of probable cause against the respondents and for
prescription of the offense. Ombudsman Desierto approved the recommendation on May 21, 1999. 5
Petitioner filed a Motion for Reconsideration 6 but it was denied by GIO Diaz-Salcedo in the Order dated July
9, 1999, which was approved by Ombudsman Desierto on July 23, 1999. 7
Forthwith, petitioner elevated the case to this Court and in support of its petition alleges that:
A) The Respondent Ombudsman gravely abused his discretion or acted without or in excess of jurisdiction in
dismissing the complaint filed by the Petitioner on the ground of Prescription considering that:
xxx xxx xxx
e. Causing undue injury to any party, including the Government or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses or permits or other
concessions. DHcESI
1. THE RIGHT OF THE STATE TO RECOVER BEHEST LOANS AS ILL-GOTTEN WEALTH IS

IMPRESCRIPTIBLE UNDER ARTICLE XI, SECTION 15, OF THE 1987 CONSTITUTION;
2. PRESCRIPTION DOES NOT RUN IN FAVOR OF A TRUSTEE TO THE PREJUDICE OF THE

BENEFICIARY;
xxx xxx xxx
349
3. THE OFFENSES CHARGED ARE IN THE NATURE OF CONTINUING CRIMES AS THE STATE
CONTINUES TO SUFFER INJURY ON EACH DAY OF DEFAULT IN PAYMENT. HENCE,
PRESCRIPTION DOES NOT APPLY;
4. PRESCRIPTION AS A MATTER OF DEFENSE MUST BE PLEADED, OTHERWISE, IT IS DEEMED

WAIVED;
5. PRESCRIPTION HAS NOT BEEN INVOKED IN THIS CASE. SINCE IT MAY BE WAIVED OR MAY
NOT BE SET IN DEFENSE, THE OMBUDSMAN CANNOT MOTU PROPRIO DISMISS THE
COMPLAINT ON GROUND OF PRESCRIPTION;
The issue before the Court is whether the Ombudsman committed grave abuse of discretion in ruling that: (a)
the offense leveled against respondents has prescribed; and (b) no probable cause exists against respondents.
The petition is partly meritorious.
Respondent Ombudsman committed grave abuse of discretion in dismissing the subject complaint on the
ground of prescription.
6. ARTICLE 91 OF THE REVISED PENAL CODE WHICH ADOPTS THE "DISCOVERY RULE" SHALL
APPLY IN THIS CASE;
Respondents members of the PNB Board of Directors and Officers of NOCOSII are charged with violation of
R.A. No. 3019, a special law. Amending said law, Section 4, Batas Pambansa Blg. 195, 11 increased the
prescriptive period from ten to fifteen years.
7. THE LOAN CONTRACT AS OTHER LOAN TRANSACTIONS IN THE NATURE OF BEHEST LOANS
ARE KEPT SECRET. 8
The applicable law in the computation of the prescriptive period is Section 2 of Act No. 3326, 12 as amended,
which provides:
B) The respondent Ombudsman gravely abused his discretion or acted without or in excess of jurisdiction in not
finding that a probable cause exists for violation by the private respondents of section 3 (e) and (g) of RA 3019
despite the presence of clear, overwhelming and unrebutted evidence. 9 TcADCI
Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the
same not be known at the time, from the discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
In its Comment, the Ombudsman, without delving on the issue of prescription, in view of Presidential Ad Hoc
Fact-Finding Committee on Behest Loans v. Desierto (1999), 10 contends that its finding of insufficiency of
evidence or lack of probable cause against respondents deserves great weight and respect, and must be accorded
full weight and credit.
The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin
to run again if the proceedings are dismissed for reasons not constituting jeopardy. EcHIDT
The issue of prescription has long been laid to rest in the aforementioned Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto, 13 where the Court held:
No comment was filed by the rest of the respondents.
350
. . . it was well-nigh impossible for the State, the aggrieved party, to have known the violations of R.A. No.
3019 at the time the questioned transactions were made because, as alleged, the public officials concerned
connived or conspired with the "beneficiaries of the loans.' Thus, we agree with the COMMITTEE that the
prescriptive period for the offenses with which respondents in OMB-0-96-0968 were charged should be
computed from the discovery of the commission thereof and not from the day of such commission.
The assertion by the Ombudsman that the phrase 'if the same not be known' in Section 2 of Act No. 3326 does
not mean 'lack of knowledge' but that the crime 'is not reasonably knowable' is unacceptable, as it provides an
interpretation that defeats or negates the intent of the law, which is written in a clear and unambiguous language
and thus provides no room for interpretation but only application. 14
The Court reiterated the above ruling in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.
Desierto (2001), 15 thus:
In cases involving violations of R.A. No. 3019 committed prior to the February 1986 Edsa Revolution that
ousted President Ferdinand E. Marcos, we ruled that the government as the aggrieved party could not have
known of the violations at the time the questioned transactions were made (PCGG vs. Desierto, G.R. No.
140232, January 19, 2001, 349 SCRA 767; Domingo v. Sandiganbayan, supra, Note 14; Presidential Ad Hoc
Fact Finding Committee on Behest Loans v. Desierto, supra, Note 16). Moreover, no person would have dared
to question the legality of those transactions. Thus, the counting of the prescriptive period commenced from the
date of discovery of the offense in 1992 after an exhaustive investigation by the Presidential Ad Hoc Committee
on Behest Loans.
On the issue of whether the Ombudsman committed grave abuse of discretion in finding that no probable cause
exists against respondents, it must be stressed that the Ombudsman is empowered to determine whether there
exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty
thereof and, thereafter, to file the corresponding information with the appropriate courts. 18 Settled is the rule
that the Supreme Court will not ordinarily interfere with the Ombudsman's exercise of his investigatory and
prosecutory powers without good and compelling reasons to indicate otherwise. 19 Said exercise of powers is
based upon his constitutional mandate 20 and the courts will not interfere in its exercise. The rule is based not
only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the
Ombudsman, but upon practicality as well. Otherwise, innumerable petitions seeking dismissal of investigatory
proceedings conducted by the Ombudsman will grievously hamper the functions of the office and the courts, in
much the same way that courts will be swamped if they had to review the exercise of discretion on the part of
public prosecutors each time they decided to file an information or dismiss a complaint by a private
complainant. 21 HSATIC
While there are certain instances when this Court may intervene in the prosecution of cases, such as, (1) when
necessary to afford adequate protection to the constitutional rights of the accused; (2) when necessary for the
orderly administration of justice or to avoid oppression or multiplicity of actions; (3) when there is a prejudicial
question which is sub-judice; (4) when the acts of the officer are without or in excess of authority; (5) where the
prosecution is under an invalid law, ordinance or regulation; (6) when double jeopardy is clearly apparent; (7)
where the court has no jurisdiction over the offense; (8) where it is a case of persecution rather than
prosecution; (9) where the charges are manifestly false and motivated by the lust for vengeance; and (10) when
there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied,
22 none apply here.
After examination of the records and the evidence presented by petitioner, the Court finds no cogent reason to
disturb the findings of the Ombudsman.
As to when the period of prescription was interrupted, the second paragraph of Section 2, Act No. 3326, as
amended, provides that prescription is interrupted 'when proceedings are instituted against the guilty person. 16
Records show that the act complained of was discovered in 1992. The complaint was filed with the Office of the
Ombudsman on April 5, 1995, 17 or within three (3) years from the time of discovery. Thus, the filing of the
complaint was well within the prescriptive period of 15 years.
No grave abuse of discretion can be attributed to the Ombudsman. Grave abuse of discretion implies a
capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. 23 The exercise of power
must have been done in an arbitrary or despotic manner by reason of passion or personal hostility. It must be so
patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or
to act at all in contemplation of law. 24
351
The disquisition of GIO Diaz-Salcedo, in dismissing the criminal complaint, as approved by Ombudsman
Desierto, is worth-quoting, thus:
Taking into consideration the provisions of Administrative Order No. 13 and Memorandum Order No. 61, the
subject transactions can not be classified as behest.
Evaluation of the records of this case reveals that the loans acquired by NOCOSII are actually foreign loans
from Midland Bank Ltd. of London. There were no direct loans released by PNB but merely credit
accommodations to guaranty the loans from Midland Bank. HAaDTE
Anent complainant's claim that the collaterals offered by NOCOSII are insufficient, it should be noted that
under PNB Board Resolution No. 689 dated July 30, 1975, one of the conditions imposed to NOCOSII was the
execution of contract assigning all NOCOSII's share of sugar and molasses to PNB. NOCOSII was also
required to increase its paid up capital at P5,000,000.00 a year starting April 30, 1976 up to April 30, 1980 or a
total of P25,000,000.00. In addition thereto, the stockholders of NOCOSII were required to pledge or assign all
their present and future shares to PNB while the accommodation remains standing. The proposed plant site
which was offered as collateral was estimated to cost P307,903,000.00. The foregoing collaterals offered by
NOCOSII are more than sufficient to cover the loans of P333,465,260.00.
Furthermore, since the loan was approved by PNB, it presupposes that all the required clearances were
submitted by NOCOSII including the clearance from the Office of the President; and having complied with all
the documentary requirements, NOCOSII became entitled to the release of the loan.
Complainant further alleged that NOCOSII was undercapitalized because its paid up capital was only
P50,000,000.00. Complainant, however, failed to consider the other assets of NOCOSII which also form part of
its capital. . . . 25
The finding of insufficiency of evidence or lack of probable cause by the Ombudsman is borne out by the
evidence presented by petitioner: firstly, there were no direct loans released by PNB but merely credit
accommodations to guaranty NOCOSII's foreign loans from Midland Bank Ltd. of London; secondly,
NOCOSII effectively came under government control since 1975 when PNB acquired a majority of the voting
rights in NOCOSII and was given the power to appoint a comptroller therein; thirdly, PNB's credit
accommodations to NOCOSII between 1975 and 1981 in the aggregate sum of P333,465,260.00 were
sufficiently secured by: (1) the Assignment of Subscription Rights and/or Pledge of Shares dated September 5,
1975 whereby NOCOSII officers pledged their shares of stock, representing 90% of NOCOSII's subscribed
capital stock, and assigned their subscription rights to future stocks in favor of PNB; 26 (2) the Deed of
Assignment dated September 5, 1975 whereby NOCOSII assigned its share of sugar and molasses from the
operation of its sugar central located at Barrio Mateo, Matalam, North Cotabato in favor of PNB; 27 (3) the
Joint and Solidary Agreement dated September 5, 1975 whereby the NOCOSII officers bound themselves
jointly and severally liable with the corporation for the payment of NOCOSII's obligations to PNB; 28 (4) the
Real Estate Mortgage dated October 2, 1981 whereby NOCOSII mortgaged various buildings, machineries and
equipments, otherwise known as the NOCOSII Sugar Mill Plant, with an estimated value of P307,593,000.00 in
favor of PNB; 29 and (5) the Chattel Mortgage with Power of Attorney dated October 2, 1981 whereby
NOCOSII mortgaged various transportation, agricultural and heavy equipment in favor of the PNB; 30
fourthly, PNB imposed other conditions, such as, (1) the submission by NOCOSII of the Central Bank's
approval of its foreign loans; (2) the submission by NOCOSII of the required clearances from the National
Economic Development Authority (NEDA) and/or Presidential Committee on Sugar Industry (PHILSUGIN);
(3) submission by NOCOSII of its milling contracts covering a total area of not less than 14,000 hectares; (4)
submission by NOCOSII of the government permit that the planters can cultivate the required hectarage; (5)
further increase in NOCOSII's total paid-in capital to P25,000,000.00 at P5,000,000.00 a year starting April 30,
1976 up to April 30, 1980; (6) deposit in NOCOSII's account with the PNB of all cash proceeds of NOCOSII's
foreign loans the disposition of which shall be subject to the bank's control; and, (7) designation by the PNB of
its own representatives in NOCOSII's Board of Directors and its own comptroller who shall have the authority
to control all disbursements and receipts of funds of NOCOSII. 31 HSaIET
The herein assailed Orders being supported by substantial evidence, there is no basis for the Court to exercise
its supervisory powers over the ruling of the Ombudsman. As long as substantial evidence supports the
Ombudsman's ruling, that decision will not be overturned. 32
WHEREFORE, the petition is DISMISSED. Except as to prescription, the assailed Resolution dated May 21,
1999 and Order dated July 23, 1999 of the Ombudsman in OMB No. 0-95-0890 are AFFIRMED. No costs.
SO ORDERED.
352
Ynares-Santiago, Chico-Nazario and Nachura, JJ., concur.

||| (Presidential Commission on Good Government v. Desierto, G.R. No. 140231, [July 9, 2007], 553 PHIL 733747)
convicted by final judgment by escaping during the term of his sentence. Here, petitioner was never brought to
prison and thus, prescription never started to run in his favor.
SYLLABUS
THIRD DIVISION
[G.R. No. 139033. December 18, 2002.]
JOVENDO DEL CASTILLO, petitioner, vs. HON. ROSARIO TORRECAMPO, Presiding Judge, RTC of
Camarines Sur, Branch 33 and PEOPLE OF THE PHILIPPINES, respondents.
Arquillo Dela Cruz & Albao Law Office for petitioner.
SYNOPSIS
Petitioner was found guilty of violating Sec. 178 (nn) of the 1978 Election Code. During the execution of his
judgment of imprisonment, petitioner failed to appear prompting the presiding judge to issue an order of his
arrest. Petitioner, however, was never apprehended. Ten years later, petitioner moved that his warrant of arrest
be quashed on the ground of prescription of penalty.
For prescription of penalty imposed by final sentence to commence to run, the culprit should escape during the
term of his sentence. Article 93 of the Revised Penal Code provides that the period of prescription shall
commence to run from the date when the culprit should evade the service of his sentence. Article 157 of the
same Code provides that evasion of service of sentence can be committed only by those who have been
1. CRIMINAL LAW; PRESCRIPTION OF PENALTIES; COMMENCES TO RUN WHEN FELON EVADES

SERVICE OF HIS SENTENCE. Article 93 of the Revised Penal Code provides when the prescription of
penalties shall commence to run. Under said provision, it shall commence to run from the date the felon evades
the service of his sentence. Pursuant to Article 157 of the same Code, evasion of service of sentence can be
committed only by those who have been convicted by final judgment by escaping during the term of his
sentence. As correctly pointed out by the Solicitor General, "escape" in legal parlance and for purposes of
Articles 93 and 157 of the RPC means unlawful departure of prisoner from the limits of his custody. Clearly,
one who has not been committed to prison cannot be said to have escaped therefrom. In the instant case,
petitioner was never brought to prison. In fact, even before the execution of the judgment for his conviction, he
was already in hiding.
2. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; COMPASSION OF THE COURT ACCORDED ONLY
TO THE DESERVING; CASE AT BAR. Petitioner begs for the compassion of the Court because he has
ceased to live a life of peace and tranquility after he failed to appear in court for the execution of his sentence.
But it was petitioner who chose to become a fugitive. The Court accords compassion only to those who are
deserving. Petitioner's guilt was proven beyond reasonable doubt but he refused to answer for the wrong he
committed. He is therefore not to be rewarded therefor. The assailed decision of the Court of Appeals is based
on settled jurisprudence and applicable laws. It did not engage in judicial legislation but correctly interpreted
the pertinent laws. AacDHE
DECISION
CORONA, J p:
353
The instant petition is one for the review, by way of appeal by certiorari, of the Decision 1 of the Court of
Appeals dated November 20, 1998, and of the Resolution dated June 14, 1999 denying the motion for
reconsideration thereof.
During the execution of judgment, petitioner failed to appear which prompted the presiding judge to issue an
order of arrest of petitioner and the confiscation of his bond. However, petitioner was never apprehended. He
remained at large.
Petitioner was charged on March 8, 1983 with violation of Section 178 (nn) 2 of the 1978 Election Code in
Criminal Case No. F-1447 before Branch 33, Regional Trial Court, Camarines Sur. The Information alleged:
Ten years later, on October 24, 1997, petitioner filed before the trial court a motion to quash the warrant issued
for his arrest on the ground of prescription of the penalty imposed upon him. However, it was denied. His
motion for reconsideration thereof was likewise denied.
That on May 17, 1982, (Barangay Election Day), at around 8:15 P.M. in Barangay Ombao, Municipality of
Bula, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused did, then and there unlawfully conducted himself in a disorderly manner, by striking the electric
bulb and two (2) kerosene petromax lamps lighting the room where voting center no. 24 is located, during the
counting of the votes in said voting center plunging the room in complete darkness, thereby interrupting and
disrupting the proceedings of the Board of Election Tellers. 3
Dissatisfied, petitioner filed with the Court of Appeals a Petition for Certiorari assailing the orders of the trial
court denying both his motion to quash the warrant of arrest and motion for reconsideration.
On November 20, 1998, the Court of Appeals rendered its now assailed decision dismissing the petition for lack
of merit.
On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued.
Following the denial of his motion for reconsideration, the instant petition was filed before us.
On January 14, 1985, the trial court rendered judgment and declared petitioner guilty beyond reasonable doubt
of violating Section 178 (nn) of PD 1296, otherwise known as the 1978 Election Code, as amended, and
sentenced petitioner to suffer the indeterminate penalty of imprisonment of 1 year as minimum to 3 years as
maximum.
Aggrieved, petitioner appealed his conviction to the Court of Appeals which eventually affirmed the decision of
the trial court in toto. Said decision became final and executory. Thus, the execution of judgment was scheduled
on October 14, 1987.
On October 12, 1987, an urgent motion to reset the execution of judgment was submitted by petitioner through
his counsel. But it was denied for lack of merit.
Petitioner asserts that the Court of Appeals gravely erred in holding that the penalty imposed upon petitioner has
not prescribed. Petitioner maintains that Article 93 of the Revised Penal Code provides that the period of
prescription shall commence to run from the date when the culprit should evade the service of his sentence. The
Court of Appeals, in its interpretation of the said provision, engaged in judicial legislation when it added the
phrase "by escaping during the term of the sentence" thereto, so petitioner claims.
Going over the merits of the petition, the Court finds that the Court of Appeals did not err in dismissing the
petition for certiorari.
The threshold issue in the instant case is the interpretation of Article 93 of the Revised Penal Code in relation to
Article 157 of the same Code.
354
In dismissing the petition, the Court of Appeals ruled:
"Article 92 of the Revised Penal Code provides as follows:
"The penalty imposed upon the petitioner is one (1) year of imprisonment as minimum to three (3) years of
imprisonment as maximum.
"The law under which the petitioner was convicted is a special law, the 1978 Election Code. This law does not
provide for the prescription of penalties. This being the case, We have to apply the provision of the Revised
Penal Code which allows the application of said code in suppletory character when it provides that:
'When and how penalties prescribe The penalties imposed by the final sentence prescribed as follows:
'Offenses which are or in the future may be punishable under special laws are not subject to the provision of this
code. This code shall be supplementary to such laws, unless the latter should specially provide the contrary.'
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
"The penalty imposed upon the petitioner is a correctional penalty under Article 25 in relation to Article 27 of
the Revised Penal Code. Being a correctional penalty it prescribed in ten (10) years.
3. Correctional penalties, in ten years; with the exception of the penalty of arresto mayor, which prescribes in
five years;
"The petitioner was convicted by a final judgment on June 14, 1986. Such judgment would have been executed
on October 14, 1986 but the accused did not appear for such proceeding. And he has never been apprehended.
4. Light penalties, in one year.'
"The contention of the petitioner is that said judgment prescribed on October 24, 1996.
"And Article 93 of the Revised Penal Code, provides as follows:
"The issue here is whether or not the penalty imposed upon the petitioner has prescribed.
'Computation of the prescription of penalties The period of prescription of penalties shall commence to run
from the date when the culprit should evade the service of his sentence, and it shall be interrupted if the
defendant should give himself up, be captured, should go to some foreign country with which his Government
has no extradition treaty, or should commit another crime before the expiration of the period of prescription.'
"The elements in order that the penalty imposed has prescribed are as follows:
'1. That the penalty is imposed by final sentence.
2. That the convict evaded the service of the sentence by escaping during the term of his sentence.
355
3. That the convict who escaped from prison has not given himself up, or been captured, or gone to a foreign
country with which we have no extradition treaty or committed another crime.
4. That the penalty has prescribed, because of the lapse of time from the date of the evasion of the service of the
sentence by the convict.'
(p. 93, Revised Penal Code by L. Reyes 93 ed.)
"From the foregoing elements, it is clear that the penalty imposed has not prescribed because the circumstances
of the case at bench failed to satisfy the second element, to wit 'That the convict evaded the service of the
sentence by escaping during the service of his sentence.' As a matter of fact, the petitioner never served a single
minute of his sentence.
In the instant case, petitioner was never brought to prison. In fact, even before the execution of the judgment for
his conviction, he was already in hiding. Now petitioner begs for the compassion of the Court because he has
committed. He is therefore not to be rewarded therefor.
The assailed decision of the Court of Appeals is based on settled jurisprudence and applicable laws. It did not
engage in judicial legislation but correctly interpreted the pertinent laws. Because petitioner was never placed in
confinement, prescription never started to run in his favor. SECAHa
WHEREFORE, for lack of merit, the petition is hereby DENIED.

SO ORDERED.
Puno, Panganiban, Sandoval-Gutierrez and Carpio-Morales, JJ., concur.
The foregoing conclusion of the Court of Appeals is consistent with the ruling of this Court in Tanega vs.
Masakayan, et al., 4 where we declared that, for prescription of penalty imposed by final sentence to commence
to run, the culprit should escape during the term of such imprisonment.
||| (Del Castillo v. Torrecampo, G.R. No. 139033, [December 18, 2002], 442 PHIL 442-448)
The Court is unable to find and, in fact, does not perceive any compelling reason to deviate from our earlier
pronouncement clearly exemplified in the Tanega case.
Article 93 of the Revised Penal Code provides when the prescription of penalties shall commence to run. Under
said provision, it shall commence to run from the date the felon evades the service of his sentence. Pursuant to
Article 157 of the same Code, evasion of service of sentence can be committed only by those who have been
convicted by final judgment by escaping during the term of his sentence.
As correctly pointed out by the Solicitor General, "escape" in legal parlance and for purposes of Articles 93 and
157 of the RPC means unlawful departure of prisoner from the limits of his custody. Clearly, one who has not
been committed to prison cannot be said to have escaped therefrom.
FIRST DIVISION
[G.R. No. 141718. January 21, 2005.]
BENJAMIN PANGAN y RIVERA, petitioner, vs. HON. LOURDES F. GATBALITE, as the Presiding Judge,
Regional Trial Court of Angeles City, Branch 56, and COL. JAMES D. LABORDO, as the City Jail Warden of
Angeles City, respondents.
356
DECISION
AZCUNA, J p:
Before the Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure,
assailing the decision of the Regional Trial Court of Angeles City, Branch 56, rendered on January 31, 2000. 1
The facts of this case are undisputed. The petitioner was indicted for simple seduction in Criminal Case No. 85816, at the Municipal Trial Court of Angeles City, Branch 3.
During the trial of the case, Atty. Eduardo Pineda, counsel for petitioner, submitted the case for decision without
offering any evidence, due to the petitioner's constant absence at hearings. EAaHTI
(a) the straight penalty of two months and one day of arresto mayor prescribes in five years under No. 3, Article
93 [of the] Revised Penal Code, and
(b) having been able to continuously evade service of sentence for almost nine years, his criminal liability has
long been totally extinguished under No. 6, Article 89 [of the] Revised Penal Code. 4
After his transfer to the City Jail of Angeles City on January 25, 2000, petitioner filed an Amended Petition with
the Regional Trial Court, impleading herein respondent Col. James D. Labordo, the Jail Warden of Angeles
City, as respondent. 5
On September 16, 1987, the petitioner was convicted of the offense charged and was sentenced to serve a
penalty of two months and one day of arresto mayor.
In response, the Jail Warden alleged that petitioner's detention was pursuant to the order of commitment
(mittimus), issued by Marlon P. Roque, Clerk of Court III of the Municipal Trial Court of Angeles City, Branch
3, dated January 25, 2000. 6
On appeal, the Regional Trial Court, on October 24, 1988, affirmed in toto the decision of the Municipal Trial
Court.
On January 31, 2000, respondent Judge rendered the decision, which is the subject of this present appeal, which
pronounced:
On August 9, 1991, the case was called for promulgation of the decision in the court of origin. Despite due
notice, counsel for the petitioner did not appear. Notice to petitioner was returned unserved with the notation
that he no longer resided at the given address. As a consequence, he also failed to appear at the scheduled
promulgation. The court of origin issued an order directing the recording of the decision in the criminal docket
of the court and an order of arrest against the petitioner. 2
The Court cannot subscribe to the contention of the petitioner that the penalty imposed on him in the decision
adverted to above had already prescribed, hence, his detention is illegal for under Article 93 of the Revised
Penal Code:
Pursuant to the order of arrest, on January 20, 2000, the petitioner was apprehended and detained at the
Mabalacat Detention Cell. On January 24, 2000, petitioner filed a Petition for a Writ of Habeas Corpus at the
Regional Trial Court of Angeles City. He impleaded as respondent the Acting Chief of Police of Mabalacat,
Pampanga. 3 Petitioner contended that his arrest was illegal and unjustified on the grounds that:
"The period of prescription of penalties shall commence to run from the date when the culprit should evade the
service of sentence, and it shall be interrupted if the defendant should give himself up, be captured, should go to
some foreign country with which this Government has no extradition treaty, or should commit another crime
before the expiration of the period of prescription.
357
The elements of prescription are:
1. That the penalty is imposed by final judgment;
"A commitment in due form, based on a final judgment, convicting and sentencing the defendant in a criminal
case, is conclusive evidence of the legality of his detention, unless it appears that the court which pronounced
the judgment was without jurisdiction or exceeded it." (U.S. vs. Jayne, 24 Phil 90, 24 J.F. 94, Phil. Digest, Vol.
2, 1398).
2. That convict evaded the service of the sentence by escaping during the term of his sentence;
WHEREFORE, for not being meritorious and well-founded, the petition for a writ of habeas corpus is hereby
denied.
3. That the convict who had escaped from prison has not given himself up, or been captured, or gone to a
foreign country with which we have no extradition treaty, or committed another crime;
SO ORDERED.
4. The penalty has prescribed, because of the lapse of time from the date of the evasion of the service of the
sentence by the convict.
In this case, the essential element of prescription which is the evasion of the service of sentence is absent.
Admittedly, the petitioner herein has not served the penalty imposed on him in prison and that during the
service of the sentence, he escaped therefrom. Notably, at the trial of Crim. Case No. 85-816 in the Municipal
Trial Court, Branch III, Angeles City and on the date set for the promulgation of the affirmed decision, the
petitioner failed to appear and remained at large.
"There was no evasion of the service of the sentence in this case, because such evasion presupposes escaping
during the service of the sentence consisting in deprivation of liberty." (Infante vs. Warden, 48 O.G. No. 122)
(92 Phil. 310).
Corollarily, the detention of the petitioner in Angeles City Jail in compliance with the Order of Commitment
(Exhibit E) is not illegal for
Angeles City, January 31, 2000. 7
From the above quoted decision, petitioner filed the instant petition for review on a question purely of law and
raised the following issue:
HOW SHOULD THE PHRASE "SHALL COMMENCE TO RUN FROM THE DATE WHEN THE CULPRIT
SHOULD EVADE THE SERVICE OF SENTENCE" IN ARTICLE 93 OF THE REVISED PENAL CODE ON
THE COMPUTATION OF THE PRESCRIPTION OF PENALTIES BE CONSTRUED? PUT A LITTLE
DIFFERENTLY, WHEN DOES THE PRESCRIPTIVE PERIOD OF PENALTIES BEGIN TO RUN? 8
Petitioner claims that:
. . . the period for the computation of penalties under Article 93 of the Revised Penal Code begins to run from
the moment the judgment of conviction becomes final and the convict successfully evades, eludes, and dodges
arrest for him to serve sentence. 9
358
Petitioner supports his claim in the following manner:
The Decision subject of this appeal, which was based on the 1952 ruling rendered in Infante vs. Warden, 48
O.G. No. 122, 92 Phil. 310, is, petitioner most respectfully submits, not good case law. It imposes upon the
convict a condition not stated in the law. It is contrary to the spirit, nature or essence of prescription of penalties,
creates an ambiguity in the law and opens the law to abuse by government.
"The period of prescription of penalties shall commence to run from the date when the culprit should escape
during the service of the sentence consisting in deprivation of liberty, and it shall be interrupted if the defendant
should give himself up, be captured, should go to some foreign country with which this Government has no
extradition treaty, or should commit another crime before the expiration of the period of prescription."
But they did not.

THE INFANTE RULING IMPOSES A
CONDITION NOT STATED IN THE LAW.
It appears that the Infante ruling imposes that, as an essential element, the convict must serve at least a few
seconds, minutes, days, weeks or years of his jail sentence and then escapes before the computation of
prescription of penalties begins to run. This, petitioner respectfully submits is not a condition stated in Article
93, which states that, the prescription of penalties "shall commence to run from the date when the culprit should
evade the service of sentence."
There is no dispute that the duty of government to compel the service of sentence sets in when the judgment of
conviction becomes final.
The dispute, however, is in the construction of the phrase "should evade the service of sentence." When does the
period of prescription of penalties begin to run? The Infante ruling construes this to mean that the convict must
escape from jail "because such evasion presupposes escaping during the service of the sentence consisting in
deprivation of liberty."
The legislature wrote "should evade the service of sentence" to cover or include convicts like him who,
although convicted by final judgment, were never arrested or apprehended by government for the service of
their sentence. With all the powers of government at its disposal, petitioner was able to successfully evade
service of his 2 months and 1 day jail sentence for at least nine (9) years, from August 9, 1991 to January 20,
2000. This is approximately 3 years and 5 months longer than the 5-year prescriptive period of the penalty
imposed on him.
That, as the respondent RTC Judge noted, petitioner did not attend the trial at the Municipal Trial Court and the
promulgation of his judgment of conviction in August 9, 1991 is of no moment. His bond for provisional release
was surely cancelled and an order of arrest was surely issued against petitioner. The undisputed fact is that on
August 9, 1991 the judgment of conviction was promulgated in absentia and an order for petitioner's arrest was
issued by the Municipal Trial Court of Angeles City, Branch III.
The duty of government, therefore, to arrest petitioner and compel him to serve his sentence began on August 9,
1991. The 5-year prescriptive period of his arresto mayor penalty also began to run on that day considering that
no relief was taken therefrom. Since petitioner never gave himself up [n]or was [he], until January 20, 2000,
ever captured, for the service of his sentence nor did he flee to some foreign country with which [our]
government has no extradition treaty, that 5-year prescriptive period of his penalty ran continuously from
August 9, 1991 when his judgment of conviction was promulgated in absentia and was never interrupted.
Petitioner, with due respect, disagrees because if that were the intention of the law, then the phrase "should
evade the service of sentence" in Article 93 would have read: "should escape during the service of the sentence
consisting in deprivation of liberty." The legislature could have very easily written Article 93 to read this way
359
For reasons known only to it, however, government failed or neglected, for almost nine (9) years, to arrest
petitioner for the service of his arresto mayor sentence [which] should not be taken against petitioner. He was
able to successfully evade service of his sentence for a period longer than the 5-year prescriptive period of his
penalty and, as such, is entitled to total extinction of his criminal liability.
To say, as was said in Infante, that the prescriptive period of the penalty never began to run in favor of petitioner
because he never escaped from jail during the service of his sentence imposes a condition not written in the law.
It also violates the basic principle that the criminal statutes are construed liberally in favor of the accused and/or
convict and is contrary to the spirit behind or essence of statutes of limitations [and] prescription, in criminal
cases. 10
The Regional Trial Court based its decision on the case of Infante v. Warden 11 . In said case, Infante, the
petitioner, was convicted of murder and was sentenced to seventeen years, four months and one day of reclusion
temporal. After serving fifteen years, seven months and eleven days, he was granted a conditional pardon. The
condition was that "he shall not again violate any of the penal laws of the Philippines." Ten years after his
release on conditional pardon, Infante was found guilty by a Municipal Court for driving without a license.
Infante was immediately ordered rearrested for breach of the condition of his pardon. One of the issues raised
by Infante in his petition,
. . . was that the remitted penalty for which the petitioner had been recommitted to jail one year and 11 days
had prescribed. . . . 12
The Court disagreed and reasoned out thus:
The contention is not well taken. According to article 93 of the Revised Penal Code the period of prescription of
penalties commences to run from the date when the culprit should evade the service of his sentence. It is evident
from this provision that evasion of the sentence is an essential element of prescription. There has been no such
evasion in this case. Even if there had been one and prescription were to be applied, its basis would have to be
the evasion of the unserved sentence, and computation could not have started earlier than the date of the order
for the prisoner's rearrest. 13
A perusal of the facts in Infante v. Warden reveals that it is not on all fours with the present case. In Infante, the
convict was on conditional pardon when he was re-arrested. Hence, he had started serving sentence but the State
released him. In the present case, the convict evaded service of sentence from the start, and was arrested eight
years later.
The RTC decision, however, must stand, since it is in accord with applicable decisions of this Court. The issue
raised by petitioner is not novel. Article 93 of the Revised Penal Code 14 has been interpreted several times by
the Court.
The case of Tanega v. Masakayan 15 falls squarely within the issues of the present case. In that case, petitioner
Adelaida Tanega failed to appear on the day of the execution of her sentence. On the same day, respondent
judge issued a warrant for her arrest. She was never arrested. More than a year later, petitioner through counsel
moved to quash the warrant of arrest, on the ground that the penalty had prescribed. Petitioner claimed that she
was convicted for a light offense and since light offenses prescribe in one year, her penalty had already
prescribed. The Court disagreed, thus:
. . . The period of prescription of penalties the succeeding Article 93 provides "shall commence to run
from the date when the culprit should evade the service of his sentence". What then is the concept of evasion of
service of sentence? Article 157 of the Revised Penal Code furnishes the ready answer. Says Article 157:
"ART. 157. Evasion of service of sentence. The penalty of prision correccional in its medium and maximum
periods shall be imposed upon any convict who shall evade service of his sentence by escaping during the term
of his imprisonment by reason of final judgment. . . ."
Elements of evasion of service of sentence are: (1) the offender is a convict by final judgment; (2) he "is serving
his sentence which consists in deprivation of liberty"; and (3) he evades service of sentence by escaping during
the term of his sentence. This must be so. For, by the express terms of the statute, a convict evades "service of
his sentence" by "escaping during the term of his imprisonment by reason of final judgment." That escape
should take place while serving sentence, is emphasized by the provisions of the second sentence of Article 157
360
which provides for a higher penalty if such "evasion or escape shall have taken place by means of unlawful
entry, by breaking doors, windows, gates, walls, roofs, or floors, or by using picklocks, false keys, disguise,
deceit, violence or intimidation, or through connivance with other convicts or employees of the penal
institution, . . ." Indeed, evasion of sentence is but another expression of the term "jail breaking."
xxx xxx xxx
We, therefore, rule that for prescription of penalty of imprisonment imposed by final sentence to commence to
run, the culprit should escape during the term of such imprisonment.
The Court is unable to find and, in fact, does not perceive any compelling reason to deviate from our earlier
pronouncement clearly exemplified in the Tanega case.
Article 93 of the Revised Penal Code provides when the prescription of penalties shall commence to run. Under
said provision, it shall commence to run from the date the felon evades the service of his sentence. Pursuant to
Article 157 of the same Code, evasion of service of sentence can be committed only by those who have been
convicted by final judgment by escaping during the term of his sentence.
As correctly pointed out by the Solicitor General, "escape" in legal parlance and for purposes of Articles 93 and
157 of the RPC means unlawful departure of prisoner from the limits of his custody. Clearly, one who has not
been committed to prison cannot be said to have escaped therefrom.
Adverting to the facts, we have here the case of a convict who sentenced to imprisonment by final judgment
was thereafter never placed in confinement. Prescription of penalty, then, does not run in her favor. 16
In Del Castillo v. Torrecampo 17 , the Court cited and reiterated Tanega. Petitioner, Del Castillo, was charged
for violation of Section 178 (nn) of the 1978 Election Code. The trial court found Del Castillo guilty beyond
reasonable doubt and sentenced him to suffer an indeterminate sentence of imprisonment of 1 year as minimum
to 3 years as maximum. On appeal the Court of Appeals affirmed the decision of the trial court in toto. During
the execution of judgment on October 14, 1987, petitioner was not present. The presiding Judge issued an order
of arrest and the confiscation of his bond. Petitioner was never apprehended. Ten years later, petitioner filed a
motion to quash the warrant of arrest on the ground that the penalty imposed upon him had already prescribed.
The motion was denied by the trial court. Del Castillo, on a petition for certiorari to the Court of Appeals,
questioned the denial by the trial court. The Court of Appeals dismissed the petition for lack of merit. Upon
denial of his Motion for Reconsideration, Del Castillo raised the matter to this Court. The Court decided against
Del Castillo and after quoting the ratio decidendi of the Court of Appeals in full, it ratiocinated, thus:
The foregoing conclusion of the Court of Appeals is consistent with the ruling of this Court in Tanega vs.
Masakayan, et al., where we declared that, for prescription of penalty imposed by final sentence to commence
to run, the culprit should escape during the term of such imprisonment.
In the instant case, petitioner was never brought to prison. In fact, even before the execution of the judgment for
his conviction, he was already in hiding. Now petitioner begs for the compassion of the Court because he has
committed. He is therefore not to be rewarded therefor.
The assailed decision of the Court of Appeals is based on settled jurisprudence and applicable laws. It did not
engage in judicial legislation but correctly interpreted the pertinent laws. Because petitioner was never placed in
confinement, prescription never started to run in his favor. 18
Consistent with the two cases cited above, this Court pronounces that the prescription of penalties found in
Article 93 of the Revised Penal Code, applies only to those who are convicted by final judgment and are serving
sentence which consists in deprivation of liberty. The period for prescription of penalties begins only when the
convict evades service of sentence by escaping during the term of his sentence. Since petitioner never suffered
deprivation of liberty before his arrest on January 20, 2000 and as a consequence never evaded sentence by
escaping during the term of his service, the period for prescription never began.
361
Petitioner, however, has by this time fully served his sentence of two months and one day of arresto mayor and
should forthwith be released unless he is being detained for another offense or charge.
WHEREFORE, the decision of the Regional Trial Court of Angeles City, Branch 56 is AFFIRMED, but
petitioner is ordered released effective immediately for having fully served his sentence unless he is detained for
another offense or charge.
No costs.
SO ORDERED.
Quisumbing, Ynares-Santiago and Carpio, JJ., concur.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; WITNESS; CREDIBILITY; FINDINGS OF TRIAL COURT,
RESPECTED. We have consistently held that appellate courts, as a rule, will not disturb the findings of the
trial court on the credibility of witnesses. We have sustained trial courts in this respect, considering their
vantage point in the evaluation of testimonial evidence, absent, of course, any showing of serious error or
irregularity that otherwise would alter the result of the case. We find no such serious error or irregularity in the
case at bar.
2. ID.; ID.; ID.; ID.; NOT AFFECTED BY DELAY IN REPORTING THE CRIME. The delay of seven (7)
days from the date of her knowledge of the rape incident, in reporting to the authorities the rape of her daughter
is excusable. At that time, she was not yet certain of the steps she would take considering the delicate nature of
the problem they were facing. Besides, we have ruled that a delay in prosecuting the rape is not indicative of
fabricated charges.
3. ID.; ID.; DENIAL AND ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. The
accused's denial and alibi cannot prevail over his positive identification by the victim Maristel as her rapist.
Maristel testified in a clear and straightforward manner that appellant through force and intimidation and with
use of a deadly weapon (kitchen knife), succeeded in having carnal knowledge of her.
Davide, Jr., C.J., is on leave.

||| (Pangan v. Gatbalite, G.R. No. 141718, [January 21, 2005], 490 PHIL 49-60)
FIRST DIVISION
4. CRIMINAL LAW; RAPE; PARDON; SUFFICIENCY. As for the defense that the mother of the rape
victim has expressly pardoned the accused, we sustain the trial court's finding that: ". . . pardon must be granted
not only by the parents of an offended minor but also by the minor herself in order to be effective as an express
pardon under Art. 344 of the Revised Penal Code. . . . In the present case, the supposed pardon of the accused
was allegedly granted only by the mother without the concurrence of the offended minor, . . ."
[G.R. No. 117407. April 15, 1997.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IRVIN TADULAN y EPAN, accused-appellant.
DECISION

Josephine C . Lati-Bagaoisan for accused-appellant.
PADILLA, J p:
362
Accused-appellant Irvin Tadulan was charged with the crime of rape before the Regional Trial Court of Pasig,
Branch 157, Metro Manila, in a complaint docketed as Criminal Case No. 92-186, alleging as follows:
"That on or about the 2nd day of April, 1992 in the Municipality of Pasig, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, armed with a knife, with lewd design and by means of force, threats
and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with one
Maristel Cruz, a minor, nine (9) years old, without her consent and against her will. cdasia
CONTRARY TO LAW" 1
When arraigned under the foregoing indictment, appellant pleaded not guilty to the crime attributed to him.
Thereafter, trial commenced with both prosecution and defendant presenting evidence consisting of testimonies
of witnesses and documentary exhibits.
The evidence presented by the prosecution tended to establish the following facts:
". . . Complainant Estela Santos owns a house at No. 6 Dr. Garcia St., in Barangay Sumilang Pasig, Metro
Manila where she resides with her common-law husband and their minor daughter, Maristel Cruz. Behind the
said house, complainant also owns a three-door apartment building, one unit of which was rented and occupied
by accused Irvin Tadulan, his wife Adefa Tadulan and their three children name [sic] Dianne, Angie and Bochoy
who were aged 10, 9 and 5, respectively. In 1992 complainant's daughter, Maristel Cruz was about nine (9) year
[sic] old (Exh. 'A') and was in grade school. She often played with the accused's children in the vicinity of their
house and the apartment building.
In the morning of April 2, 1992, at about 11:00 o'clock, Maristel Cruz was playing with the other children when
she was called by Irvin Tadulan into the latter's apartment unit. He brought the girl upstairs and told her to lie
down on the floor. Irvin Tadulan then removed the shorts and panties of Maristel Cruz and his own pants and
briefs. He kissed the girl and fondled her breasts and private parts. Then he put himself on top of her and
inserted his organ into her genitals. Maristel Cruz felt the pain in her vagina. She pushed Irvin Tadulan away
from her and got up, but the latter poked a kitchen knife at her and told her to remain lying down; and because
of fear, Maristel Cruz lay [sic] down on the floor again. Irvin Tadulan placed himself on top of her once more,
kissed and fondled her breasts as before, and finally succeeded in inserting his penis into her sex organ. As he
had intercourse with Maristel Cruz, blood oozed out of her vagina and she felt the pain. Shortly thereafter,
however, she heard her mother calling her. So, Irvin Tadulan told her to dress up quickly and ordered her to go
home.
Upon reaching home, Maristel Cruz did not inform her mother that Irvin Tadulan had carnal knowledge of her;
but two days later, their laundry woman saw the blood stains on her panties and told her mother about it. At
first, Maristel Cruz refused to talk when her mother asked her about the said blood stains, but when the mother
persisted in asking her, the girl cried and revealed that Irvin Tadulan had sexual intercourse with her. The
mother (Estela Santos) was shocked. She reported the matter to her godson who immediately confronted Irvin
Tadulan relative to what he had done to Maristel Cruz. At first, Irvin Tadulan denied having done the act
imputed to him by the said girl, but he later on admitted that he had sexual intercourse with her.
Shortly thereafter, Irvin Tadulan's wife (Adefa Tadulan) arrived from a trip from Cagayan de Oro City, and
Estela Santos immediately informed her that her husband, Irvin Tadulan has raped her (Estela) daughter
Maristel Cruz. Estela Santos further informed Adefa Tadulan that she would not take action against the latter's
husband if they would vacate the apartment unit right away. Adefa Tadulan later on met with Estela Santos and
told her that she had driven away Irvin Tadulan, but requested that she and her children be allowed to stay until
Saturday, April 11, 1992. Estela Santos thereafter noted, however, that Irvin Tadulan was still coming home to
the apartment unit every night despite the promise of his wife that she herself would call the police should he
ever come back to the place. So, Estela Santos conferred with her cousin, a lawyer, and later on made up her
mind to file a criminal charge against Irvin Tadulan before leaving for abroad, for she was then scheduled to go
to the United States to fetch her mother who was ill due to a stroke.
On the night of April 11, 1992, Estela Santos heard a loud noise coming from the apartment building, and when
she inquired about it she came to know that it was Irvin Tadulan creating the noise because he was kicking the
door of the apartment unit occupied by him and his family. So, Estela Santos called up the police because of her
apprehension that Irvin Tadulan would create trouble due to the quarrel that was then taking place between him
and his wife. Responding policemen soon arrived at the place in a mobile car, and because Irvin Tadulan was
denounced by his wife for having rape [sic] the daughter of Estela Santos, the said police officers brought Irvin
Tadulan to the Pasig Police Station for questioning and also asked Estela Santos and her daughter to follow
them. So, that same evening, Estela Santos and her daughter went to the Pasig Police Station where they gave
their respective sworn statements (Exhs. 'B' & 'E') and lodged their complaint against Irvin Tadulan. It was
363
during the taking of her statement before the police when Maristel Cruz also revealed that Irvin Tadulan had
laid with her not only on April 2, 1992. She stated that Irvin Tadulan had previously laid on top of her and first
attempted to have intercourse with her sometime in September 1, 1991, but it was not consummated because
she was hurt whenever he tried to insert his penis into her vagina.
In order to determine physical signs of sexual abuse, the Pasig Police Station made a Request For The Medico
Legal Examination of Maristel Cruz to the PC Crime Laboratory Service at Camp Crame, Quezon City (Exh.
'F') on the following day, April 12, 1992, upon the written Consent For Examination (Exh. 'G') which was
signed by the mother, Estela Santos. A medico-legal officer of the PCCLS examined Maristel Cruz and then
issued Medico-Legal Report No. M-0708-92 dated April 13, 1992 (Exh. 'C') finding her 'hymen with deep,
healed laceration at 4 o'clock", and with the conclusion that the 'Subject is in non-virgin state physically'.
Thereafter, the Pasig Police Station forwarded the sworn statements of Maristel Cruz and her mother, together
with all the pertinent papers to the Office of the Provincial Prosecutor of Rizal where the said minor child and
her mother signed the Complaint for Rape (Exh. 'D') against Irvin Tadulan, which initiated the prosecution of
the said accused in this case." 2
On the other hand, accused Irvin Tadulan set up the defense of alibi and pardon. In support of his defense,
Tadulan testified that he could not have raped Maristel Cruz in his apartment unit in Sumilang, Pasig, Metro
Manila, at 11:00 o'clock in the morning of 2 April 1992 as he was then at his place of work at the Republic
Asahi Glass Corporation in Pinagbuhatan, Pasig, Metro Manila, where he was employed as a mobile equipment
operator. His testimony was corroborated by his supervisor at the plant who testified that on 2 April 1992, Irvin
Tadulan worked with him at the company plant during the first shift, from 6:00 a.m. to 2:00 p.m.; and that as
shown in Tadulan's daily time record (Exhibit " 1 "), said accused punched in at 5:25 a.m. and punched out at
2:31 p.m. prcd
Relative to the defense of pardon or condonation, Adefa Tadulan, wife of accused-appellant, testified that when
she arrived at their apartment on 7 April 1992 from Cagayan de Oro, she learned from Estela Santos and her
daughter Maristel Cruz that the latter had been raped by her husband; that she again went to see Estela Santos
and asked for forgiveness and that the latter told her: "Hayaan mo na lang, umalis na lang kayo dito, kung ang
Dios nagpapatawad, tao pa kaya." Said witness also testified that she asked Estela Santos if the accused Irvin
Tadulan could just leave first while she and their children would vacate the apartment unit on the coming
Saturday, and Estela Santos agreed; and that pursuant to said agreement, Irvin Tadulan immediately left the
apartment and she started packing their belongings and sent their children to Cagayan de Oro in the company of
her mother.
Adefa Tadulan further testified that on the night of 11 April 1992, her husband came home and upon learning
that she had sent their children to the province, he got angry and they had a violent quarrel. The noise created by
the quarrel was heard by Estela Santos who immediately called the police; and on that same night, Estela Santos
and Maristel Cruz lodged a complaint for rape against accused Irvin Tadulan despite the previous understanding
between Estela Santos and Adefa Tadulan that Estela would not take action anymore against Irvin Tadulan.
Prior to the reception of evidence for the accused, his counsel filed a Motion to Plead Guilty to Lesser Offense 3
praying that accused be allowed to plead guilty to the crime under Article 336, Revised Penal Code,
denominated as Acts of Lasciviousness. No communication having been received from the complainant with
regard to said offer to plead guilty to a lesser offense, the trial proceeded for the reception of evidence for the
defense
After trial, the now appealed judgment was rendered by the lower court finding accused-appellant guilty beyond
reasonable doubt of the crime charged. The dispositive part of the decision reads as follows:
"WHEREFORE, AND IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, this Court hereby finds
accused IRVIN TADULAN guilty beyond reasonable doubt of the crime of RAPE defined and penalized by
Article 335 of the Revised Penal Code, and he is hereby sentenced to the penalty of Reclusion Perpetua, with
the accessory penalties the law provides therefor.
Accused Irvin Tadulan is also hereby ordered to indemnify the offended minor girl, Maristel Cruz in the sum of
THIRTY THOUSAND PESOS (P30,000.00), with interest thereon at the legal rate of six per cent (6%) per
annum from the filing of the complaint in this case until the same is fully paid.
SO ORDERED." 4
364
The issues raised by accused-appellant boil down to credibility of witnesses.

In this appeal, accused Irvin Tadulan assigns the following errors to the trial court:
THE TRIAL COURT ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE EVIDENCE
ADDUCED BY THE DEFENSE.
II
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDENCE TO THE TESTIMONIES OF
PROSECUTION WITNESSES MARKED AS THEY ARE WITH INCONSISTENCIES AND
IMPROBABILITIES WHICH CAST SERIOUS DOUBTS AS TO THEIR TRUTHFULNESS.
III
ASSUMING THAT THE PROSECUTION'S VERSION OF THE INCIDENT IS CORRECT, THE TRIAL
COURT ERRED IN NOT CONSIDERING THE FACT THAT ACCUSED-APPELLANT WAS ALREADY
PARDONED BY COMPLAINANTS.
IV
THE TRIAL COURT GRAVELY ERRED IN NOT ACQUITTING ACCUSED-APPELLANT ON GROUND

OF REASONABLE DOUBT. 5
In rejecting the version of the accused-appellant, the trial court made the following findings and conclusions to
which we agree:
"This Court finds, however, that the abovementioned testimonies of accused Irvin Tadulan and his witness
cannot prevail over the more convincing testimony of the rape victim, Maristel Cruz, who positively identified
the said accused as the one who raped her and described in a clear and straightforward manner how she was
sexually abused by him. In the absence of any clear showing of ill motive that might have impelled her to
impute the heinous crime of rape against the said accused, there is no reason to doubt the veracity of the
declarations of the said victim in court; for as held in a case (People vs. Camasis, 189 SCRA 649), 'it is hard to
believe that a young unmarried woman would reveal that she was deflowered and allow the examination of her
private parts and thereafter permit herself to be the subject of public trial if her motive was not to bring to
justice the person who wronged her.' Also applicable here is the well-settled principle that 'alibi is unavailing as
a defense where there is positive identification of the perpetrator of the crime, most specially, when the said
identification is made by the victim of the rape herself in the absence of any motive to implicate the assailant'
(People vs. Felipe, 191 SCRA 176, and cases therein cited). Besides, it has been held time and time again, that
for alibi to prosper as a defense the accused must show that he was so far away that he could not have been
physically present at the place of the crime, or its immediate vicinity at the time of its commission (People vs.
Tasurra, 192 SCRA 266). In this case, however, it is clear that accused Irvin Tadulan was not so situated on
April 2, 1992, for according to him he was at the plant of the Republic-Asahi Glass Corporation in Barangay
Pinagbuhatan, Pasig, Metro Manila which is but a few kilometers from Barangay Sumilang of the same
municipality where the crime was committed. cdpr
Relative to the defense of pardon or condonation also set up by accused Irvin Tadulan, his wife Adefa Tadulan
testified that on April 7, 1992 when she arrived at their apartment unit from a trip from Cagayan de Oro City,
she came to know from both Estela Santos and her daughter, Maristel Cruz, that the latter has been raped by her
husband; that she again met with Estela Santos and asked for forgiveness; and that the said mother told her:
'Hayaan mo na lang, umalis na lang kayo dito, kung ang Diyos ay nagpapatawad, tao pa kaya.' The said wife
also testified that she asked Estela Santos if her husband could just leave first while she and their children could
vacate the apartment unit on the coming Saturday, and Estela Santos agreed; and that pursuant to the said
agreement Irvin Tadulan immediately left their house, after which she also sent their children to Cagayan de
Oro City in the company of her mother and then started packing-up their belongings. She further testified that
on the night of April 11, 1992, however, her husband came home and quarreled with her upon knowing that she
365
had sent their children to the province; that because of the noise their quarrel created, Estela Santos called for
the police; and that on that same night, Estela Santos and her daughter lodged a complaint for rape against Irvin
Tadulan, despite the previous understanding between her and Estela Santos that the latter would not anymore
take any action against her husband.
It should be pointed out, however, as earlier narrated above, that according to Estela Santos, she agreed not to
file any complaint against Irvin Tadulan upon the representation of his wife, Adefa Tadulan, that she had driven
away her husband, and her promise that if he would ever return to their apartment unit, she herself would call
for the police; that she (Estela Santos) noted, however, that Irvin Tadulan was still coming home to their
apartment unit every night; that she was prompted to call for police assistance because she saw Irvin Tadulan
kicking the door of the apartment during a violent quarrel with his wife on the night of April 11, 1992; and that
because soon after policemen arrived at the place, Adefa Tadulan herself informed them that her husband has
raped Maristel Cruz, she (Estela Santos) and her said child proceeded with the filing of their complaint for rape
against Irvin Tadulan.
From the evidence just discussed, it would appear that the initial desistance of Estela Santos from taking any
action against Irvin Tadulan, was upon the representation of the latter's wife Adefa Tadulan that she had driven
away her husband, and her promise that should he ever come back to their apartment unit she herself would call
for the police; but that the said representation turn [sic] out to be untrue, and the promise was not complied with
because Irvin Tadulan was still coming home every night and, in fact, he and her [sic] wife had a violent quarrel
in the apartment unit on the night of April 11, 1992. Otherwise stated, the desistance was subject to certain
conditions which were not complied with, and for which reason Estela Santos proceeded with the filing of a
criminal complaint against Irvin Tadulan. Upon such circumstances, it is clear to the mind of this Court that the
complainant has not expressly pardoned the said accused.
Besides, there are authorities holding that pardon must be granted not only by the parents of an offended minor
but also by the minor herself in order to be effective as an express pardon under Art. 344 of the Revised Penal
Code. Thus, in the case of People vs. Lacson, Jr., (C.A.) 55 O.G. 9460, we find the following words: 'Neither
must we be understood as supporting the view that the parents alone can extend a valid pardon. Far from it, for
we, too are of the belief that the pardon by the parents, standing alone, is inefficacious.' It was also held in
another case, that 'The express pardon of a person guilty of attempted abduction of a minor, granted by the
latter's parents, is not sufficient to remove criminal responsibility, but must be accompanied by the express
pardon of the girl herself.' (U.S. vs. Luna, 1 Phil. 360)
In the present case, the supposed pardon of the accused was allegedly granted only by the mother (Estela
Santos) without the concurrence of the offended minor, Maristel Cruz. Hence, even if it be assumed for the sake
of argument that the initial desistance of the said mother from taking any action against the accused, constitutes
pardon, it is clear that upon the authorities cited above, such pardon is ineffective without the express
concurrence of the offended minor herself.
In fine, this Court concludes that the prosecution has proved the guilt of the accused Irvin Tadulan of the crime
of rape charged against him, and that the defenses of alibi and pardon or condonation set up by him are lacking
in merit." 6
We have consistently held that appellate courts, as a rule, will not disturb the findings of the trial court on the
credibility of witnesses. We have sustained trial courts in this respect, considering their vantage point in the
evaluation of testimonial evidence, absent, of course, any showing of serious error or irregularity that otherwise
would alter the result of the case. 7 We find no such serious error or irregularity in the case at bar.
Accused-appellant alleges that the trial court gravely erred when it disregarded the defense of alibi despite the
overwhelming evidence that the accused did not leave his place of work on 2 April 1992. According to the
appellant, his immediate supervisor, Leandro Daguro, testified that he (appellant) reported for work on 2 April
1992 and was assigned in a critical area, and being the only driver at that time a problem would have ensued
had he left his post at any given time on 2 April 1992. Appellant likewise faults the trial court when it observed
that there was no physical impossibility for him to be at Barangay Sumilang, Pasig where the crime was
committed because the court mainly focused its attention on the fact that Barangay Pinagbuhatan is but a few
kilometers away from Barangay Sumilang, both in Pasig, hence, appellant could have returned to his place of
work after committing the crime at the time and place it occurred. Accused argues that the distance between the
two barangays was never an issue, that the question really is whether or not appellant left or could have left his
work at the Republic Asahi Glass Corporation in Barangay Pinagbuhatan and gone home to Barangay Sumilang
in the morning of 2 April 1992. llcd
We are not persuaded. The testimony of Leonardo Daguro that accused could not have left his work as this
would have resulted in a big problem at the area where appellant was working is too simple for comfort. The
same witness testified that he could not remember if a problem arose on that date when the crime was
366
committed and that he was supervising an average of seventeen (17) men in different sections of the raw
material department so that he had to go around each section.
We quote with approval the following observation of the court a quo:
". . . Besides, it has been held time and time again that for alibi to prosper as a defense the accused must show
that he was so far away that he could not have been physically present at the place of the crime, or its immediate
vicinity at the time of its commission (People vs. Tasurra, 192 SCRA 266). In this case, however, it is not so
situated on April 2, 1992, for according to him he was at the plant of the Republic Asahi Glass Corporation in
Barangay Pinagbuhatan, Pasig, Metro Manila which is but a few kilometers from Barangay Sumilang of the
same municipality where the crime was committed." 8
As correctly observed by the Solicitor General: "(A)s regards the acts imputed to Estela, the delay of seven (7)
days from the date of her knowledge of the rape incident on 4 April 1992 in reporting to the authorities the rape
of her daughter is excusable. At that time, she was not yet certain of the steps she would take considering the
delicate nature of the problem they were facing" (citing People v. Danguilan, 218 SCRA 98; People v. Joaquin,
Jr., 225 SCRA 179). " Besides, we have ruled that a delay in prosecuting the rape is not indicative of fabricated
charges. 10
Finally, the accused's denial and alibi cannot prevail over his positive identification by the victim Maristel as her
rapist. Maristel testified in a clear and straightforward manner that appellant through force and intimidation and
with use of a deadly weapon (kitchen knife), succeeded in having carnal knowledge of her. 11
As for the defense that Estela Santos, as the mother of the victim Maristel, expressly pardoned him, we sustain
the trial court's finding which reads as follows:
Accused-appellant tries to discredit the victim's testimony by questioning her behavior after she was allegedly
raped by the accused in September 1991 in that she did not show any fear of the accused on 2 April 1992 when
she was called by him. It should be borne in mind, in this connection, that the victim was only a naive nine (9)
year old child when the crime was committed on her. She considered the accused as a friend, almost like a
relative, as in fact she called him "Tito Loloy." She therefore unsuspectingly went near the accused when called
by the latter.
As we have stressed in a recent case
. . . it is not proper to judge the actions of children who have undergone traumatic experience by the norms of
behavior expected under the circumstances from mature people. The range of emotion shown by rape victims is
yet to be captured even by the calculus. It is thus unrealistic to expect uniform reactions from rape victims." 9
The victim Maristel was too young to totally comprehend the consequences of the dastardly act inflicted on her
by the accused-appellant.
"From the evidence just discussed, it would appear that the initial desistance of Estela Santos from taking any
action against Irvin Tadulan, was upon the representation of the latter's wife Adefa Tadulan that she had driven
away her husband, and her promise that should he ever come back to their apartment unit she herself would call
for the police; but that the said representation turned out to be untrue, and the promise was not complied with
because Irvin Tadulan was still coming home every night and, in fact, he and her wife had a violent quarrel in
the apartment unit on the night of April 11, 1992. Otherwise stated, the desistance was subject to certain
conditions which were not complied with, and for which reason Estela Santos proceeded with the filing of a
criminal complaint against Irvin Tadulan. Upon such circumstances, it is clear to the mind of this Court that the
complainant has not expressly pardoned the said accused.
Besides, there are authorities holding that pardon must be granted not only by the parents of an offended minor
but also by the minor herself in order to be effective as an express pardon under Art. 344 of the Revised Penal
Code. Thus, in the case of People vs. Lacson, Jr., (C.A.) 55 O.G. 9460, we find the following words: 'Neither
must we be understood as supporting the view that the parents alone can extend a valid pardon. Far from it, for
we, too are of the belief that the pardon by the parents, standing alone, is inefficacious.' It was also held in
another case, that 'The express pardon of a person guilty of attempted abduction of a minor, granted by the
latter's parents, is not sufficient to remove criminal responsibility, but must be accompanied by the express
pardon of the girl herself.' (U.S. vs. Luna, 1 Phil. 360)
367
In the present case, the supposed pardon of the accused was allegedly granted only by the mother (Estela
Santos) without the concurrence of the offended minor, Maristel Cruz. Hence, even if it be assumed for the sake
of argument that the initial desistance of the said mother from taking any action against the accused, constitutes
pardon, it is clear that upon the authorities cited above, such pardon is ineffective without the express
concurrence of the offended minor herself."
WHEREFORE, the appealed decision dated 4 August 1994 in Criminal Case No. 92186 of the Regional Trial
Court, Branch 157 of Pasig, Metro Manila, is hereby AFFIRMED, with modification as to the indemnity for the
victim which is raised to P50,000.00 from P30,000.00 to conform with prevailing jurisprudence including the
recent case of People v. Romualdo Miranda y Geronimo, et al., G.R. No. 97425, 24 September 1996, where the
victim was also a minor, as in the case at bar. cdll
SO ORDERED.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; GUIDING PRINCIPLES IN REVIEWING EVIDENCE IN RAPE CASES.
In People v. Yambao, (193 SCRA 571 (1991), this Court had occasion to state once more the three settled
principles to guide an appellate court in reviewing the evidence in rape cases, to wit: (1) an accusation for rape
can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to
disprove it; (2) in view of the intrinsic nature of the crime of rape where two persons are usually involved, the
testimony of the complainant must be scrutinized with extreme caution; (3) the evidence for the prosecution
must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence
for the defense.
2. ID.; ID.; FACTUAL FINDINGS OF TRIAL COURTS ACCORDED UTMOST RESPECT. It is a settled
principle that factual findings of trial courts are accorded utmost respect, in the absence of arbitrariness, since
they had the opportunity to observe the demeanor and deportment of witnesses. (People v. Raptus, G. R. Nos.
92169-70, June 19, 1991; People v. Tongson, 194 SCRA 257 [1991]; People v. Calixtro, 193 SCRA 303 [1991];
People v. Rafanan, 182 SCRA 811 [1990])
Bellosillo, Vitug, and Kapunan, JJ ., concur.

Hermosisima, Jr., J ., is on leave.
||| (People v. Tadulan y Epan, G.R. No. 117407, [April 15, 1997], 337 PHIL 685-698)
THIRD DIVISION
[G.R. No. 95753. February 12, 1992.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN LIM Y ORTIZ, accused-appellant.
Rufus B. Rodriguez for accused-appellant.
3. ID.; ID.; ALIBI; CANNOT PREVAIL OVER THE POSITIVE IDENTIFICATION OF THE ACCUSED.
It has long been recognized that alibi is an inherently weak defense which cannot prevail over the positive
identification of the accused. (People v. Godines, 196 SCRA 765 [1991]; People v. Dinola, 183 SCRA 493
[1990]; People v. Robante, 178 SCRA 852 [1989]) Also, an alibi corroborated by the wife or other relatives of
the accused is extremely weak. (People v. Rio, G. R. No. 90294, September 24, 1991; People v. Serenio, 179
SCRA 379 [1989]; People v. Esquillo, 171 SCRA 571 [1989]) Moreover, whether or not the proffered alibi is to
be believed depends on the credibility of the appellant's version vis-a-vis that of the prosecution.
4. ID.; ID.; CREDIBILITY OF WITNESS; NOT AFFECTED BY DELAY IN FILING OF CASE. The delay
in filing the case is justified where such is due to death threats against the victim and/or her family. (People v.
Aquino, 186 SCRA 208 [1990]; People v. Nunag, 173 SCRA 274 [1989]) There appears to be no question that
the threats were sufficiently effective to deter the victim from reporting such an outrage perpetrated upon her
person. Delailah Lim's testimony established that she has a well-founded belief that the appellant is capable of
carrying out his threats. She knows that the appellant owns a .38 caliber gun and an armalite the former he
used at the time he raped her, and the latter, he showed her before he left the appellant's house the following
morning. Delailah Lim also testified that she knows of a frustrated murder case filed a few years back against
368
the appellant in the province. The appellant tries to play down the alleged fears of Delailah by establishing
during the cross-examination of the latter that she was aware that the appellant did not face trial for the imputed
crime nor was he ever convicted for the same. It is the considered opinion of this Court that the fact of whether
the appellant was actually charged with frustrated murder or whether he was convicted for the same is not
material in resolving the particular question at hand. What is important is that Delailah Lim truly believed that
the appellant was capable of carrying out his threats although the factual bases for such belief may turn out to be
different from what she conceived them to be.
5. ID.; ID.; ID.; NOT AFFECTED IN CASE AT BAR. The appellant further impugns the credibility of the
prosecution's theory by alleging that Delailah's behavior after the alleged rape did not exhibit the fear and
exhaustion which such a startling and frightful experience should have instilled in her. She still accompanied
her sister to Lucena City at about 1:00 o'clock of December 5 considering that she knew that the accused would
also be there. According to the testimonies of Ruth Lim, the appellant's wife and Rosalinda Mansion, the
appellant's sister, Delailah even played card games and would even jump with joy whenever she wins. In People
v. Raptus, supra, citing People v. Ronquillo (184 SCRA 236 [1990]), it has been held that " . . . different people
react differently to a given situation or type of situation, and there is no standard form of human behavioral
response when one is confronted with a strange or startling frightful experience."
6. CRIMINAL LAW; PARDON SHOULD BE MADE PRIOR TO THE INSTITUTION OF THE CRIMINAL
ACTION. To warrant the dismissal of the complaint for rape, the victim's retraction or pardon should be
made prior to the institution of the criminal action (People v. Soliao, 194 SCRA 250 [1991]). The present case
was filed on February 24, 1988 while the Affidavit was executed only on March 1, 1988.
DECISION
This is an appeal from the decision of the Special Criminal Court, Regional Trial Court of Quezon City, Branch
88 in Criminal Case No. Q-56248 entitled "People of the Philippines v. Ruben Lim y Ortiz" finding the accused
guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer the penalty of reclusion
perpetua, to pay moral damages amounting to P50,000 00 and to pay the costs of the suit.
The accused, Ruben Lim y Ortiz, was charged with the crime of rape in an information as follows:
"That on or about the 5th day of December, 1986 in Quezon City, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there, wilfully,
unlawfully and feloniously, by means of force and intimidation through the use of a gun, had carnal knowledge
with DELAILAH LIM Y GARCIA, without her consent and against her will, to her damage and prejudice in
such amount as may be awarded to her under the provision of the Civil Code." (Rollo, p. 6).
On the basis of said information, a warrant of arrest was issued on February 29, 1988. The accused, however,
remained at large until April 22, 1988 when he surrendered for arraignment. He entered a plea of not guilty.
The prosecution's version, as narrated in complainant's Memorandum below and as adopted by the lower court
in its decision is as follows:
"On December 4, 1988 at about 6:00 o'clock in the evening, accused Ruben Lim went to the house of the
complainant at Barrio Palanas, Barangay Vasra, North Karen Saguban, (sic) the sister of the complainant to
allow the latter to go and stay temporarily in his house so that the accused may go to Lucena City as his brotherin-law, Efren Mansion, was shot to death and no one would take care of the house as all the household members
proceeded to Lucena City to attend the wake of their dead relative. Karen allowed her sister Delailah to go and
stay in the house of the accused for the purpose of taking care of the house. prLL
At about 8:00 o'clock p.m., Delailah left for the house of the accused. When the complainant arrived there at,
(sic) the accused told her he would be leaving for Lucena City the following day. He told Delailah to sleep
upstairs as he would sleep downstairs. When Delailah learned that the accused would not be leaving for the
night, she asked permission to go home but she was told by the accused not to leave as he would be leaving
early morning.
369
At around 9:00 p.m., December 4, 1986, Delailah went to sleep upstairs believing that the accused would leave
the following morning, but at about dawn of December 5, 1986, she felt somebody touching her. When she
woke she saw Ruben doing the acts. Ruben Lim immediately covered her mouth with his left hand, and pulled
her hair with his right hand, and tried to push down Delailah but as the latter was trying to resist and fight him,
the accused told her not shout (sic) otherwise he would kill her and her family specially the father who is
suffering from a heart ailment. Accused drew his firearm from his right waist and poked it at the neck of the
victim. The firearm was a .38 revolver. There was light coming from the electric post at the time of the incident.
While the .38 caliber revolver was poked at her neck, the accused continued threatening her. The complainant
believed the threats since when the accused was still single, he was charged with frustrated murder in the
province, and in Manila, the accused has a string of cases and capable of carrying out his threats (sic). When
Delilah tried to resist, accused hit her stomach and the accused removed (hinablot) the panty of Delailah.
Accused pressed the thigh of Delailah. Accused placed his finger on the private part of the complainant, trying
to loosen it. Accused succeeded in having a sexual intercourse with the complainant despite the strong
resistance and her plea not to do so, since they were cousins. Accused even said 'Anong pinsan-pinsan, walang
pinsan-pinsan sa akin, kaysa iba pa ang mauna, ako na lang uuna.' After the sexual intercourse, accused again
threatened Delailah not to report to anybody or else he would kill her and that of her family (sic) and the
complainant believed such threat.
Preliminary investigation was conducted by the Assistant City Fiscal and accused submitted his counteraffidavit and rejoinder affidavit. On November 23, 1987, complainant filed another case against the accused this
time on intentional abortion with one 'Aling Maring', the abortionist as co-accused. On February 5, 1988, the
information was file (sic) in the sala of Judge Velasco with no bail recommended. Acting on this information, a
warrant of arrest was issued with no bail recommended. The warrant of arrest returned unserved as the accused
remained at large. During the period when the accused eluded arrest, accused threatened his uncle Atty.
Eldorado Lim, who was suspected of aiding the complainant. Ruben Lim warned Atty. Lim that he would spray
the lawyer's house with armalite (sic) if he could not convince Delailah to withdraw the cases filed against him.
Atty. Lim yielded and called Delailah and her sister, Karen, to execute an affidavit of desistance. With great
reservation Delailah executed on March 1, 1988, an affidavit of desistance on the rape case and on March 8,
1988, a separate affidavit of desistance for the case of intentional abortion. As result of the affidavit filed, the
case intentional abortion was dismissed and upon arraignment of the accused for the rape charge, bail was
granted. On the same date of arraignment, a motion for reconsideration of order granting bail was filed by
Delailah. This petition, however, was held in abeyance. On April 28, 1988, complainant executed a
'Sinumpaang Salaysay' (Exh. F) explaining the affidavit of desistance was involuntary and executed under
duress and meant to hasten the capture of the accused who would have believed that the case against him would
be dropped. (Memorandum submitted by complainant. pp. 1-5)" (Rollo, pp. 28-31). prcd
Before Delailah left the house of the accused, the latter showed an armalite and continued to threaten her. In the
morning of December 5, 1986 complainant was allowed to leave but she did not reveal to anybody what
happened to her for fear of being killed. For several months after the commission of rape, the accused
frequently visited private complainant to repeat his threats. (TSN, 14 July 1988, p. 22) During those visits,
accused released (sic) that Delailah Lim was pregnant with his baby. Accused begun insisting that Delailah Lim
have an abortion. Private complainant refused and put a stop (sic) to Ruben Lim's harassment, she informed his
wife and was told to obey the wishes of the accused for he is capable of carrying out his threats. (TSN, 14 July
1988, p. 24) Despite complainant's continued refusal, accused, with the aid of his sister, Virginia Lim,
succeeded in bringing Delailah to an abortionist known to complainant as Aling Maring. On June 21, 1987,
Delailah Lim had the abortion. Even as this happened, complainant could not bring herself to report the case as
she remained afraid of the accused. She only revealed that she was raped by the accused when she learned that
the accused was detained (but was subsequently released) for illegal possession of firearms which was on
October 7, 1987. On the following day, private complainant was accompanied by her sister to the police station
to file her complaint for rape against the accused who was there held in custody. Delailah executed a written
complaint (Exhibit A) and submitted herself to medical examination by Doctor Moraleda of the Philippine
Constabulary Crime Laboratory.
The defense, on the other hand, claims that at the time of the alleged rape on December 5, 1986, the accused
was in Lucena City attending the wake of his brother in-law, Efren Mansion. He claims, further, that he stayed
in Lucena City from November 29, the start of the week-long vigil for his brother-in-law, until interment on
December 6. The only time he left Lucena City was in the morning of December 5, 1986 to attend a preliminary
investigation before Fiscal Silverio in Quezon City set at 2:00 o'clock that afternoon for a theft case he filed
against A. Paran and W. Paran. He was, allegedly, even with his wife and children when he left for Quezon City
since his wife had to buy a few things to be used at the wake. His wife returned to Lucena City that same
afternoon while he left Quezon City early in the morning of December 6, 1986 with Jose Bacay, his second
degree cousin and Atty. Eldorado Lim, his uncle.
The lower court gave full faith and credit to the prosecution's version and rendered the herein questioned
decision. Hence, the present appeal with the accused-appellant raising the following assignment of errors:
"I. THAT THE TRIAL COURT OVERLOOKED FACTS OF SUBSTANCE AND VALUE WHICH, IF
CONSIDERED, MAY AFFECT THE RESULT OF THE CASE THAT INSTEAD OF CONVICTION THERE
SHOULD HAVE BEEN AN ACQUITTAL OF THE ALLEGED CRIME OF RAPE.
370
II. THAT THE TRIAL COURT COMMITTED A SERIOUS ERROR IN NOT CONSIDERING THE
DEFENSE OF ALIBI, WHERE IT HAS BEEN ESTABLISHED THAT IT WAS PHYSICALLY IMPOSSIBLE
FOR THE ACCUSED TO BE AT THE SCENE OF THE ALLEGED CRIME AT THE TIME OF ITS
COMMISSION.
III. THAT THE TRIAL COURT COMMITTED A SERIOUS ERROR IN FINDING THAT THE ACCUSED,
RUBEN LIM Y ORTIZ, IS GUILTY OF THE CRIME CHARGED BEYOND REASONABLE DOUBT."
(Brief for the accused-appellant, p. 87).
In People v. Yambao, (193 SCRA 571 (1991), this Court had occasion to state once more the three settled
principles to guide an appellate court in reviewing the evidence in rape cases, to wit: (1) an accusation for rape
can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to
disprove it; (2) in view of the intrinsic nature of the crime of rape where two persons are usually involved, the
testimony of the complainant must be scrutinized with extreme caution; (3) the evidence for the prosecution
must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence
for the defense.
After a very careful examination of the records with the foregoing principles in mind, this Court has arrived at
no other conclusion but that the present appeal must fail.
It must be noted that the issues raised in this appeal are factual and the appellant has not presented any
compelling reason that would warrant the reversal of the findings of facts of the lower court. It is a settled
principle that factual findings of trial courts are accorded utmost respect, in the absence of arbitrariness, since
they had the opportunity to observe the demeanor and deportment of witnesses. (People v. Raptus, G. R. Nos.
92169-70, June 19, 1991; People v. Tongson, 194 SCRA 257 [1991]; People v. Calixtro, 193 SCRA 303 [1991];
People v. Rafanan, 182 SCRA 811 [1990]).
accused. (People v. Godines, 196 SCRA 765 [1991]; People v. Dinola, 183 SCRA 493 [1990]; People v.
Robante, 178 SCRA 852 [1989]) Also, an alibi corroborated by the wife or other relatives of the accused is
extremely weak. (People v. Rio, G. R. No. 90294, September 24, 1991; People v. Serenio, 179 SCRA 379
[1989]; People v. Esquillo, 171 SCRA 571 [1989]) Moreover, whether or not the proffered alibi is to be believed
depends on the credibility of the appellant's version vis-a-vis that of the prosecution. The lower court found the
prosecution's version credible. This Court finds nothing in the records that would lead to a different conclusion.
cdrep
The appellant impugns the credibility of the prosecution's theory by pointing out that ten months and three days
had lapsed since the alleged rape before charges were filed against him. He asserts that if ever the alleged
incident occurred, the delay in filing the case would lead to the conclusion that there was tacit consent to the act.
The prosecution, however, successfully explained the delay. The victim, Delailah Lim, testified that the
appellant threatened to kill her and her family if she goes to the police. It was established that after the alleged
rape, the appellant made periodic visits to the victim's house, averaging twice a week, to repeat the threats (p. 7,
TSN, May 9, 1989) The entire records of the case show that the appellant is a violence prone ex-soldier and it is
understandable why the victim should be afraid of him. The affidavit of desistance itself is a product of fear.
The delay in filing the case is justified where such is due to death threats against the victim and/or her family.
(People v. Aquino, 186 SCRA 208 [1990]; People v. Nunag, 173 SCRA 274 [1989]).
There appears to be no question that the threats were sufficiently effective to deter the victim from reporting
such an outrage perpetrated upon her person.
Delailah Lim's testimony established that she has a well-founded belief that the appellant is capable of carrying
out his threats. She knows that the appellant owns a .38 caliber gun and an armalite the former he used at the
time he raped her and the latter, he showed her before he left the appellant's house the following morning (p. 20,
TSN, July 14, 1988) Delailah Lim also testified that she knows of a frustrated murder case filed a few years
back against the appellant in the province (p. 14, TSN, ibid).
The appellant's primary defense is alibi with his wife and sister corroborating his testimony. It has long been
recognized that alibi is an inherently weak defense which cannot prevail over the positive identification of the
371
The appellant tries to play down the alleged fears of Delailah by establishing during the cross-examination of
the latter that she was aware that the appellant did not face trial for the imputed crime nor was he ever convicted
for the same. (TSN, August 22, 1988, pp. 8-9).
It is the considered opinion of this Court that the fact of whether the appellant was actually charged with
frustrated murder or whether he was convicted for the same is not material in resolving the particular question at
hand. What is important is that Delailah Lim truly believed that the appellant was capable of carrying out his
threats although the factual bases for such belief may turn out to be different from what she conceived them to
be.
The appellant next contends that Delailah filed the present case due to the instigations of her family since he
confronted them regarding his share in the profits from the properties of their deceased grandmother. However,
in the counter-affidavit which the appellant submitted during preliminary investigation, he stated a totally
different motive of Delailah Lim and we quote:
"That the only reason I can think of why Delailah G. Lim had instituted this baseless and preposterous
complaint is that she is being manipulated by her sister's deceased boyfriend, who is the brother of my sister's
deceased husband, to force the latter to share the proceeds of the death benefits which my sister received from
the government after my brother-in-law died. . . ." (Exhibit O).
In imputing ulterior motives to the complainant, the appellant hopes to convince this Court that the charges
against him are fabricated. But the manner by which the appellant presented his contention convinces this Court
that it is the imputed motives which have been fabricated. The lower court also correctly pointed out that ". . .
Even conceding that the grandmother's estate has been contested by her heirs, William Lim, father of Delailah
Lim, Atty. Eldorado Lim and Antonio Lim (deceased), father of the accused, it is unlikely that the partition has
not yet been settled considering that Paula Tumlawen died in 1968 or almost two decades before this suit was
instituted. (TSN June 26, 1989, p. 3)" (Rollo, p. 32).
considering that she knew that the accused would also be there. According to the testimonies of Ruth Lim, the
appellant's wife and Rosalinda Mansion, the appellant's sister, Delailah even played card games and would even
jump with joy whenever she wins. (TSN, May 9, 1989, p. 5 and TSN, May 18, 1989, p. 5, respectively). prLL
In People v. Raptus, supra, citing People v. Ronquillo (184 SCRA 236 [1990]), it has been held that ". . .
different people react differently to a given situation or type of situation, and there is no standard form of human
behavioral response when one is confronted with a strange or startling frightful experience."
Delailah Lim, moreover, has already explained her actions immediately after the rape during her crossexamination. She decided to accompany her sister to Lucena City since her brother-in-law requested her so.
Also, she could not think of any excuse to refuse the request without her sister and brother-in-law becoming
suspicious of her behavior. (p. 39, TSN, July 27, 1988).
At any rate, the testimonies of the appellant's wife and sister regarding Delailah's behavior in Lucena City are
quite dubious for their narrations coincide in every respect and detail. (People v. Talla, 181 SCRA 133 [1990];
People v. Madriago IV, 171 SCRA 103 [1989]; People v. Rosario, 159 SCRA 192 [1988]).
The appellant next contends that the Affidavit of Desistance (Exhibit 1) executed by Delailah Lim stating that
the rape case arose out of a mere misunderstanding should be considered in his favor. It must be noted that the
Affidavit was executed on March 1, 1988 at a time when the accused was still at large. On April 22, 1988, the
appellant surrendered for arraignment and immediately thereafter, that is, on the 28th of the same month, the
complainant executed a 'Sinumpaang Salaysay' explaining that the Affidavit of Desistance was involuntary and
executed under duress. It was also meant to hasten the capture of the accused who would have believed that the
case against him would be dropped. The foregoing series of events lends credence to Delailah's claims as to
why she executed the Affidavit. The trial court correctly observed the following:
The appellant further impugns the credibility of the prosecution's theory by alleging that Delailah's behavior
after the alleged rape did not exhibit the fear and exhaustion which such a startling and frightful experience
should have instilled in her. She still accompanied her sister to Lucena City at about 1:00 o'clock of December 5
372
". . . Its (referring to the Affidavit of Desistance) performance coincided with the time Ruben remained at large
after the warrant of arrest was issued with no bail grant. This Court takes note that the tender of voluntary
surrender by the accused was on April 22, 1988 for several days after the affidavits of desistance on rape and
intentional abortion were executed. From the facts adduced, inference may be drawn that Ruben Lim had
occasion to force the filing of the affidavits as alleged by Delailah Lim and came out of hiding when the case
against him would not prosper due to the retraction.
"The duress angle of the affidavits of desistance is supported by the Motions to withdraw filed on March 4,
1988 by Atty. Eldorado Lim, counsel of the accused in the following cases: People v. Ruben Lim (carnapping
case) presented as evidence by the prosecution marked Exhibits I, J, and K. To quote:
As to the matter of the complainant submitting voluntarily to an abortion, such fact is impertinent to the case at
hand. Even assuming, arguendo, that complainant submitted to an abortion, such does not detract from the fact
that the appellant perpetrated the offense charged herein.
WHEREFORE, ALL THE FOREGOING PREMISES CONSIDERED, the APPEAL is hereby DISMISSED.
The decision appealed from is AFFIRMED.
SO ORDERED.
Feliciano, Bidin, Davide, Jr. and Romero, JJ., concur.
'That last Saturday and Sunday, the accused threatened the undersigned counsel with death due to suspicion that
said undersigned counsel extended his help to his niece Delailah Lim in a rape case by that letter (sic) against
Ruben Lim which is assigned to this Honorable court.'" (Rollo, p. 37).
The appellant belatedly impugns the credibility of Atty. Lim whom he alleges to have conspired with Delailah
for their grandmother's inheritance. It is quite improbable that the appellant would have retained the services of
Atty. Lim in the other cases filed by and against him, a relationship which requires utmost confidence, if they
maintained adverse interests.
In any case, to warrant the dismissal of the complaint, the victim's retraction or pardon should be made prior to
the institution of the criminal action (People v. Soliao, 194 SCRA 250 [1991]). The present case was filed on
February 24, 1988 while the Affidavit was executed only on March 1, 1988. LLphil
||| (People v. Lim y Ortiz, G.R. No. 95753, [February 12, 1992])
EN BANC
[G.R. No. 103567. December 4, 1995.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO SALLE, JR. Y GERCILLA @ "KA
NOMOT," RICKY MENGOTE Y CUNTADO @ "KA RICKY/KA LIZA/KA JUN," and TEN JOHN DOES,
accused. FRANCISCO SALLE, JR., Y GERCILLA and RICKY MENGOTE Y CUNTADO, accusedappellants.

All the foregoing discussions clearly show the strength of the prosecution's case. This Court finds it
unnecessary, then, to delve lengthily into the other trivial points raised by the appellant in his brief (such as
Delailah Lim being at the age of highest sexual desire; the development of intimacy between the complainant
and appellant due to Delailah's frequent visits to the appellant's house; Delailah having purposely worn a dress
which is straight out and open from the neckline down on the date of the alleged rape) to show that the act was
consensual inasmuch as the same are mere conjectures, not having been established during the trial.
Free Legal Assistance Group (FLAG) for accused-appellants.
SYLLABUS
373
CONSTITUTIONAL LAW; EXECUTIVE DEPARTMENT; "CONVICTION BY FINAL JUDGMENT"

LIMITATION UNDER SECTION 19, ARTICLE VII OF THE 1987 CONSTITUTION PROHIBITS THE
GRANT OF PARDON, WHETHER FULL OR CONDITIONAL, TO AN ACCUSED DURING THE
PENDENCY OF HIS APPEAL FROM HIS CONVICTION BY THE TRIAL COURT. We now declare that
the "conviction by final judgment" limitation under Section 19, Article VII of the present Constitution prohibits
the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal from his
conviction by the trial court. Any application therefor, if one is made, should not be acted upon or the process
toward its grant should not be begun unless the appeal is withdrawn. Accordingly, the agencies or
instrumentalities of the Government concerned must require proof from the accused that he has not appealed
from his conviction or that he has withdrawn his appeal. Such proof may be in the form of a certification issued
by the trial court or the appellate court, as the case may be. The acceptance of the pardon shall not operate as an
abandonment or waiver of the appeal, and the release of an accused by virtue of a pardon, commutation of
sentence, or parole before the withdrawal of an appeal shall render those responsible therefor administratively
liable. Accordingly, those in custody of the accused must not solely rely on the pardon as a basis for the release
of the accused from confinement. And now on the instant case. Considering that appellant Ricky Mengote has
not filed a motion to withdraw his appeal up to this date the conditional pardon extended to him should not have
been enforced. Nonetheless, since he stands on the same footing as the accused-appellants in the Hinlo case, he
may be freed from the full force, impact, and effect of the rule herein pronounced subject to the condition set
forth below. This rule shall fully bind pardons extended after 31 January 1995 during the pendency of the
grantee's appeal.
BELLOSILLO, J., concurring opinion:

1. CONSTITUTIONAL LAW; EXECUTIVE DEPARTMENT; ANY GRANT OF PARDON IN FAVOR OF AN
APPELLANT WHOSE APPEAL IS STILL PENDING VIOLATES THE CONSTITUTION. The grant of
reprieves, commutations and pardons, as well as the remission of fines and forfeitures by the President may be
done only after the grantee has been convicted by final judgment in the instances enumerated in the majority
ponencia. This is crystal clear from the terms of Sec. 19, Art. VII, 1987 Constitution, which states that "[e]xcept
in cases of impeachment, or as otherwise provided in this Constitution,the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment . . ." as
distinguished from its counterpart provision in the 1973 Constitution, as amended, under which People v.
Crisola (No. L-32422, 2 March 1984, 128 SCRA 1) and Monsanto v. Factoran, Jr. (G.R No. 78239, 9 February
1989, 170 SCRA 190) were decided. Accordingly, any grant of pardon in favor of an appellant whose appeal is
still pending resolution violates the Constitution. Thus where an appeal is taken from a judgment of conviction,
the appellant must first withdraw his appeal or await the resolution thereof so that the judgment on appeal may
attain finality. If his appeal is not yet resolved with finality, the appellant must first withdraw his appeal before
his application for reprieve, commutation, pardon, remission of fines or forfeitures may be acted upon favorably
by the Board of Pardons and Parole and, for that matter, by the Presidential Committee for the Grant of Bail,
Release or Pardon. Consequently, such application should not be processed until the applicant sufficiently
shows that the decision finding him guilty has become final. ISHaCD
2. ID.; ID.; ID.; PRACTICE OF THE BOARD OF PARDONS AND PAROLE OF PROCESSING
APPLICATIONS DESPITE THE PENDENCY OF AN APPEAL MUST BE ABATED. To allow the
processing of such application in the case before us despite the pendency of an appeal may lead to confusion
since the applicant may yet be acquitted by the appellate court although already granted pardon by the
President. That would be incongruous and unwarranted. Hence, the present practice of the Board of Pardons and
Parole, which may be an unjustified carry-over from the past under the old Constitution,and of the Presidential
Committee for the Grant of Bail, Release or Pardon, of processing applications for reprieves, pardons,
commutations, etc., despite the pendency of an appeal must immediately be abated.
DECISION
DAVIDE, JR., J p:
For resolution is the enforceability of the conditional pardon granted to accused-appellant Ricky Mengote
during the pendency in this Court of his appeal from his conviction by the trial court.
In the decision 1 dated 18 November 1991 of Branch 88 of the Regional Trial Court (RTC) of Quezon City in
Criminal Case No. Q- 90-11835, the accused-appellants were found guilty beyond reasonable doubt as coprincipals of the compound crime of murder and destructive arson and were each sentenced to suffer the penalty
of reclusion perpetua and to pay, jointly and severally, an indemnity in the sum of P50,000.00 to the heirs of the
victim. 2
The appellants seasonably filed their Notice of Appeal. On 24 March 1993, this Court accepted the appeal. On 6
January 1994, however, appellant Francisco Salle, Jr. filed an Urgent Motion to Withdraw Appeal. The Court
then required his counsel, Atty. Ida May La'o of the Free Legal Assistance Group (FLAG) to verify the
voluntariness of the aforesaid motion.
374
In her Manifestation with Motion to Withdraw Appeal, Atty. La'o informed this Court that her verification
disclosed that Salle signed the motion without the assistance of counsel on his misimpression that the motion
was merely a bureaucratic requirement necessary for his early release from the New Bilibid Prison (NBP)
following the grant of a conditional pardon by the President on 9 December 1993. He was discharged from the
NBP on 28 December 1993. She further informed the Court that appellant Ricky Mengote was, on the same
dates, granted a conditional pardon and released from confinement, and that he immediately left for his province
without consulting her. She then prays that this Court grant Salle's motion to withdraw his appeal and consider it
withdrawn upon his acceptance of the conditional pardon.
Until now, Mengote has not filed a motion to withdraw his appeal.
In the resolution of 23 March 1994, this Court granted Salle's motion to Withdraw his appeal and considered
this case closed and terminated insofar as he is concerned.
On 3 June 1993, Assistant Director Jesus P. Villanueva of the Bureau of Corrections submitted certified
photocopies of the conditional pardon granted separately to Salle 3 and Mengote 4 and of their certificates of
release. 5 The said copies of the conditional pardon state, among other things, that it is upon acceptance of the
pardon that the appellants will be released from confinement. But there is nothing to show when the appellants
accepted the pardon.
In its Comment of 17 August 1994, the Office of the Solicitor General asserted that with their acceptance of the
conditional pardon, the appellants impliedly admitted their guilt and accepted their sentence, and hence, the
appeal should be dismissed. 6
1. The Office of the Solicitor General and the counsel for the accused-appellants to submit, within thirty (30)
days from notice hereof, their respective memoranda on the issue of the enforceability of the conditional
pardon; and
2. The Presidential Committee for the Grant of Bail, Release or Pardon to inform the Court, within ten (10) days
from notice hereof, why it recommended to the President the grant of the conditional pardon despite the
pendency of the appeal. 7
In a Comment submitted on behalf of the Presidential Committee for the Grant of Bail, Release, or Pardon,
Assistant Chief State Prosecutor Nib C. Mariano avers that the Secretariat assisting the Committee has a
standing agreement with the FLAG and other human rights organizations that it will recommend to the
Presidential Committee for conditional pardon by the President of convicted persons who may have been
convicted of crimes against national security and public order or of common crimes which appear to have been
committed in pursuit of their political objectives; and that where the said convicted persons have pending
appeals before the appellate court, the lawyers of the said organizations, particularly the FLAG, will take care of
filing the appropriate motions for the withdrawal of their appeal considering that presidential pardon may be
extended only to those serving sentence after final conviction. Notwithstanding that agreement, before it
recommends to the Committee the grant of conditional pardon, the Secretariat also checks with the Bureau of
Corrections the carpeta or records of recommendees whether they have pending appeals so that those concerned
'nay be properly advised to withdraw the same. Mariano further contends that per information given to the
Secretariat by Assistant Director Villanueva, Mengote's carpeta or prison record does not show that he has a
pending appeal with the Court of Appeals or the Supreme Court. For that reason, the Secretariat was not able to
advise those concerned to take appropriate steps for the withdrawal of the appeal before it recommended to the
Committee the grant of conditional pardon in favor of Mengote. Mariano then assures the Court that there was
no intention on the part of the Secretariat and the Committee to violate Section 19, Article VII of the
Constitution, and that what happened was a clear misappreciation of facts due to the incomplete records of
Mengote.
After taking into consideration Section 19, Article VII of the Constitution which provides that the President
may, except in cases of impeachment or as otherwise provided in the Constitution, grant pardon after conviction
by final judgment, this Court resolved to require
375
In its Memorandum filed for the Appellee on 15 December 1994, the Office of the Solicitor General maintains
that the conditional pardon granted to appellant Mengote is unenforceable because the judgment of conviction is
not yet final in view of the pendency in this Court of his appeal.
On the other hand, the FLAG, through Atty. La'o, submits that the conditional pardon extended to Mengote is
valid and enforceable. Citing Monsanto vs. Factoran, Jr., 8 it argues that although Mengote did not file a motion
to withdraw the appeal, he was deemed to have abandoned the appeal by his acceptance of the conditional
pardon which resulted in the finality of his conviction.
The pivotal issue thus raised is the enforceability of a pardon granted to an accused during the pendency of his
appeal from a judgment of conviction by the trial court.
This calls for a review of the Philippine laws on presidential pardons. We shall start with the Jones Law. 9
Section 21 thereof provided in part as follows:
SEC. 21. That the supreme executive power shall be vested in an executive officer, whose official title shall be
"The Governor-General of the Philippine Islands." . . . He is hereby vested with the exclusive power to grant
pardons and reprieves and remit fines and forfeitures. . . .
Then came the 1935 Constitution. Paragraph 6, Section 10, Article VII thereof provided as follows:
(6) The President shall have the power to grant reprieves, commutations, and pardons, and remit fines and
forfeitures, after conviction, for all offenses, except in cases of impeachment, upon such conditions and with
such restrictions and limitations as he may deem proper to impose. He shall have the power to grant amnesty
with the concurrence of the Congress.
This provision differed from that of the Jones Law in some respects. Thus, in People vs. Vera, 10 this Court
held:
Under the Jones Law, as at common law, pardon could be granted any time after the commission of the offense,
either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In re Lontok [19221, 43
Phil. 293). The Governor-General of the Philippines was thus empowered, like the President of the United
States, to pardon a person before the facts of the case were fully brought to light. The framers of our
Constitution thought this undesirable and, following most of the state constitutions, provided that the pardoning
power can only be exercised "after conviction".
The requirement of after conviction operated as one of the limitations on the pardoning power of the President.
Thus:
It should be observed that there are two limitations upon the exercise of this constitutional prerogative by the
Chief Executive, namely: (a) that the power be exercised after conviction; and (b) that such power does not
extend to cases of impeachment. 11
The 1973 Constitution went further by providing that pardon could be granted only after final conviction.
Section 14 of Article IX thereof reads as follows:
The Prime Minister may, except in cases of impeachment, grant reprieves, commutations, and pardons, remit
fines and forfeitures, after final conviction, and, with the concurrence of the National Assembly, grant amnesty.
(emphasis supplied)
The 1981 amendments to the 1973 Constitution, however, removed the limitation of final conviction, thereby
bringing us back to the aforementioned provision of the Jones Law. Section 11, Article VII of the 1973
Constitution, as thus amended, reads:
The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and
forfeitures and, with the concurrence of the Batasang Pambansa, grant amnesty.
376
But the said limitation was restored by the present Constitution. Section 19, Article VII thereof reads as follows:
Except in cases of impeachment, or as otherwise provided in this Constitution,the President may grant
reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the
Congress. (Emphasis supplied)
Where the pardoning power is subject to the limitation of conviction, it may be exercised at any time after
conviction even if the judgment is on appeal. It is, of course, entirely different where the requirement is '"final
conviction," as was mandated in the original provision of Section 14, Article IX of the 1973 Constitution, or
"conviction by final judgment," as presently prescribed in Section 19, Article VII of the 1987 Constitution. In
such a case, no pardon may be extended before a judgment of conviction becomes final.
A judgment of conviction becomes final (a) when no appeal is seasonably perfected, (b) when the accused
commences to serve the sentence, (c) when the right to appeal is expressly waived in writing, except where the
death penalty was imposed by the trial court, and (d) when the accused applies for probation, thereby waiving
his right to appeal. 12 Where the judgment of conviction is still pending appeal and has not yet therefore
attained finality, as in the instant case, executive clemency may not yet be granted to the appellant.
We are not, however, unmindful of the ruling of this Court in People vs. Crisola 13 that the grant of executive
clemency during the pendency of the appeal serves to put an end to the appeal. Thus:
The commutation of the penalty is impressed with legal significance. That is an exercise of executive clemency
embraced in the pardoning power. According to the Constitution: "The President may, except in cases of
impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and, with the concurrence
of the Batasang Pambansa, grant amnesty." Once granted, it is binding and effective. It serves to put an end to
this appeal.
It must, nevertheless, be noted that the constitutional provision quoted is that of the 1973 Constitution, as
amended, which authorized the exercise of the pardoning power at anytime, either before or after conviction.
Also, in Monsanto vs. Factoran, 14 this Court stated that the acceptance of a pardon amounts to an
abandonment of an appeal, rendering the conviction final; thus:
The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction,
implying that clemency could be given even before conviction. Thus, petitioner's unconditional pardon was
granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987
Constitution, the former limitation of final conviction was restored. But be that as it may, it is our view that in
the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the
result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal
and her unreversed conviction by the Sandiganbayan assumed the character of finality.
This statement should not be taken as a guiding rule for it is nothing but an obiter dictum. Moreover, the pardon
involved therein was extended on 17 December 1984 or under the regime of Section 11, Article VII of the 1973
Constitution, as amended, which allowed the grant of pardon either before or after conviction.
The reason the Constitutional Commission adopted the "conviction by final judgment" requirement, reviving in
effect the original provision of the 1973 Constitution on the pardoning power, was, as expounded by
Commissioner Napoleon Rama, to prevent the President from exercising executive power in derogation of the
judicial power. 15
Indeed, an appeal brings the entire case within the exclusive jurisdiction of the appellate court. A becoming
regard for the doctrine of separation of powers demands that such exclusive authority of the appellate court be
fully respected and kept unimpaired. For truly, had not the present Constitution adopted the "conviction by final
judgment" limitation, the President could, at any time, and even without the knowledge of the court, extend
executive clemency to any one whom he, in good faith or otherwise, believes to merit presidential mercy. It
cannot be denied that under the Jones Law and the 1981 amendment to the 1973 Constitution on the pardoning
power which did no require conviction, the President had unimpeded power to grant pardon even before the
criminal case could be heard. And under the 1935 Constitution which required "conviction" only, the power
could be exercised at any time after conviction and regardless of the pendency of the appeal. In either case,
377
there could be the risk not only of a failure of justice but also of a frustration of the system of administration of
justice in view of the derogation of the jurisdiction of the trial or appellate court. Where the President is not so
prevented by the Constitution, not even Congress can impose any restriction to prevent a presidential folly. 16
Hence, nothing but a change in the constitutional provision consisting in the imposition of "convict ion by final
judgment" requirement can change the rule. The new Constitution did it.
Hence, before an appellant may be validly granted pardon, he must first ask for the withdrawal of his appeal,
i.e., the appealed conviction must first be brought to finality.
Accordingly, while this Court, in its resolution of 21 March 1991 in People vs. Pedro Sepada, 17 dismissed the
appeal for having become moot and academic in view of the parole granted to the appellant, it explicitly
declared the necessity of a final judgment before parole or pardon could be extended. Thus:
CONSIDERING THE FOREGOING, the COURT RESOLVED to DISMISS the appeal for having become
moot and academic. To avoid any possible conflict with the judicial determination of pending appeals, the Court
further DIRECTED the Board of Pardons and Parole to adopt a system which enables it to ascertain whether a
sentence has become final and executory and has, in fact, been executed before acting on any application for
parole or pardon. The Court Administrator shall coordinate with the Department of Justice on how this may be
best achieved. (Emphasis supplied).
Recently, in its resolution of 31 January 1995 in People vs. Hinlo, 18 this Court categorically declared to be
"in clear violation of the law" the "practice of processing applications for pardon or parole despite pending
appeals." This Court resolved therein as follows:
IN VIEW OF THE FOREGOING, in order to put a stop to the practice of processing applications for pardon
and parole despite pending appeals which is in clear violation of the law, the Court Resolved to:
(1) REQUIRE Atty. Conrado H. Edig, counsel de parte of accused Bernardo Hinlo, Catalino Capin, Martin
Hinlo and Cecerio Ongco, who were given pardon, to secure and file the withdrawal of the appeals of said
accused within days from receipt of this Resolution;
(2) CALL the attention of the Presidential Committee to observe the proper procedure as required by law before
granting bail, pardon or parole in cases before it; and
(3) REMIND the Board of Pardons and Parole about the Court's directive in People v. Sepada case. (Emphasis
supplied).
The above pronouncements of this Court in Sepada and in Hinlo may still be unheeded, either through
deliberate disregard thereof or by reason of an erroneous application of the obiter dictum in Monsanto or of the
ruling in Crisola. Hence, the need for decisive action on the matter.
We now declare that the "conviction by final judgment" limitation under Section 19, Article VII of the present
Constitution prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his
appeal from his conviction by the trial court. Any application therefor, if his conviction by the trial court. Any
application therefor, if one is made, should not be acted upon or the process toward its grant should not be
begun unless the appeal is withdrawn. Accordingly, the agencies or instrumentalities of the Government
concerned must require proof from the accused that he has not appealed from his conviction or that he has
withdrawn his appeal. Such proof may be in the form of a certification issued by the trial court or the appellate
court, as the case may be. The acceptance of the pardon shall not operate as an abandonment or waiver of the
appeal, and the release of an accused by virtue of a pardon, commutation of sentence, or parole before the
withdrawal of an appeal shall render those responsible therefor administratively liable. Accordingly those in
custody of the accused must not solely rely on the pardon as a basis for the release of the accused from
confinement.
And now on the instant case. Considering that appellant Ricky Mengote has not filed a motion to withdraw his
appeal up to this date the conditional pardon extended to him should not have been enforced. Nonetheless, since
he stands on the same footing as the accused-appellants in the Hinlo case, he may be freed from the full force,
impact, and effect of the rule herein pronounced subject to the condition set forth below. This rule shall fully
bind pardons extended after 31 January 1995 during the pendency of the grantee's appeal.
WHEREFORE, counsel for accused-appellant Ricky Mengote y Cuntado is hereby given thirty (30) days from
notice hereof within which to secure from the latter the withdrawal of his appeal and to submit it to this Court.
378
The conditional pardon granted the said appellant shall be deemed to take effect only upon the grant of such
withdrawal. In case of non-compliance with this Resolution, the Director of the Bureau of Corrections must
exert every possible effort to take back into his custody the said appellant, for which purpose he may seek the
assistance of the Philippine National Police or the National Bureau of Investigation.
Let copies of this Resolution be furnished the Office of the President, the Department of Justice, the Board of
Pardons and Parole and the Presidential Committee for the Grant of Bail, Release or Pardon.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco,
Hermosisima and Panganiban, JJ., concur.
||| (People v. Salle, Jr. y Gercilla, G.R. No. 103567, [December 4, 1995], 321 PHIL 169-184)
THIRD DIVISION
SYLLABUS
CRIMINAL LAW; EXTINCTION OF CRIMINAL LIABILITY; CONDITIONAL PARDON; IF GRANTED
DURING THE PENDENCY OF AN APPEAL, CONSIDERED VOID. In the resolution of 31 January 1995
in People vs. Hinlo, this Court categorically declared the "practice of processing applications for pardon or
parole despite pending appeals" to be in clear violation of law." Earlier, in our resolution of 21 March 1991 in
People vs. Sepada, this Court signified in no uncertain terms the necessity of a final judgment before parole or
pardon could be extended. Having observed that the pronouncements in the aforementioned cases remained
unheeded, either through deliberate disregard or erroneous applications of the obiter dictum in Monsanto vs.
Factoran, (170 SCRA 190 [1989]) or the ruling in People vs. Crisola, (128 SCRA 1, 3 [1984]) this Court, in its
resolution of 4 December 1995 in People vs. Salle, explicitly declared: We now declare that the "conviction by
final judgment" limitation under Section 19, Article VII of the present Constitution prohibits the grant of
pardon, whether full or conditional, to an accused during the pendency of his appeal from his conviction by the
trial court. Any application therefor, if one is made, should not be acted upon or the process toward its grant
should not be begun unless the appeal is withdrawn. Accordingly, the agencies or instrumentalities of the
Government concerned must require proof from the accused that he has not appealed from his conviction or that
he has withdrawn his appeal. Such proof may be in the form of a certification issued by the trial court or the
appellate court, as the case may be. The acceptance of the pardon shall not operate as an abandonment or waiver
of the appeal, and the release of an accused by virtue of a pardon, commutation of sentence, or parole before the
withdrawal of an appeal shall render those responsible therefor administratively liable. Accordingly, those in
custody of the accused must not solely rely on the pardon as a basis for the release of the accused from
confinement. . . . This rule shall fully bind pardons extended after 31 January 1995 during the pendency of the
grantee's appeal. It follows then that the conditional pardons granted in this case to accused-appellants William
Casido and Franklin Alcorin are void for having been extended on 19 January 1996 during the pendency of their
instant appeal.
[G.R. No. 116512. July 30, 1996.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEOPOLDO BACANG @ "POLDO," "Gerry Brako,"
and "Arnold," FRANCISCO PALACIOS, @ "Minggoy & Joe," TATA DOE, WILLIAM CASIDO @ "Mario,"
and FRANKLIN ALCORIN y ALPARO @ "Arman," and REO DOE, accused.
WILLIAM CASIDO and FRANKLIN ALCORIN, accused-appellants.
Public Attorney's Office for accused-appellants.
RESOLUTION
DAVIDE, JR., J p:
From the judgment of the Regional Trial Court (RTC) of Negros Oriental, Branch 45 (Bais City), in Criminal
Case No. 397-B promulgated on 1 December 1993, finding them and co-accused Francisco Palacios guilty
beyond reasonable doubt of murder and sentencing each of them to suffer the penalty of reclusion perpetua and
to pay, severally, P200,000.00 and P25,000.00 as actual damages and for funeral expenses, respectively, and
costs, 1 accused WILLIAM CASIDO and FRANKLIN ALCORIN appealed to this court by filing a
supplemental notice of appeal on 8 December 1993. 2
379
This Court accepted the appeal on 7 December 1994. 3
On 30 June 1995, counsel for accused-appellants filed the "appellant's [sic] Brief." 4
On 28 September 1995, the Office of the Solicitor General filed the Brief for the Appellee 5 and asked for the
affirmance in toto of the appealed decision.
On 11 January 1996, this Court received an undated Urgent Motion to Withdraw Appeal 6 from accusedappellants William Casido and Franklin Alcorin which, however, did not state any reason therefor. At the lower
portion thereof is a 1st Indorsement, dated 5 January 1996, of Venancio J. Tesoro, Superintendent IV of the
Bureau of Corrections, referring the motion to this Court with a claim that "the legal effect . . . [thereof] has
been adequately explained to the accused-appellant/s and that the same is/are filed on his/their own free will."
In a 1st Indorsement, dated 10 June 1996 but received on 14 June 1996, Superintendent Venancio J. Tesoro
submitted certified true copies of the conditional pardons separately granted to accused-appellants William
Casido and Franklin Alcorin 9 both signed by the President on 19 January 1996 and of their certificates of
discharge from prison 10 showing that the said accused-appellants were released from confinement on 25
January 1996 in view of the grant of conditional pardon. These certificates stated that the pardons were granted:
[b]y virtue of the authority conferred upon me by the Constitution and upon the recommendation of the
Presidential Committee for the Grant of Bail, Release and Pardon . . .
It is then clear that the conditional pardons separately extended to the accused-appellants were issued during the
pendency of their instant appeal.
In the resolution of 31 January 1995 in People vs. Hinlo, 11 this Court categorically declared the "practice of
processing applications for pardon or parole despite pending appeals" to be "in clear violation of law."
On 28 February 1996, this Court required counsel for the accused-appellants to comment on the urgent motion
to withdraw the appeal.
Earlier, in our resolution of 21 March 1991 in People vs. Sepada, 12 this Court signified in no uncertain terms
the necessity of a final judgment before parole or pardon could be extended.
On 22 March 1996, this Court received a 1st Indorsement, dated 18 March 1996, 7 from Superintendent
Venancio J. Tesoro informing this Court that accused-appellants William Casido and Franklin Alcorin "were
released on Conditional Pardon on January 25, 1996."
On 20 May 1996, this Court directed Superintendent Venancio J. Tesoro to submit to this Court certified true
copies of the Conditional pardon and the release or discharge order.
On 29 April 1996, counsel for the accused-appellants filed the required comment 8 on the urgent motion to
withdraw the appeal and the counsel offered no objection thereto.
Having observed that the pronouncements in the aforementioned cases remained unheeded, either through
deliberate disregard or erroneous applications of the obiter dictum in Monsanto vs. Factoran 13 or the ruling in
People vs. Crisola, 14 this Court, in its resolution of 4 December 1995 in People vs. Salle, 15 explicitly
declared:
We now declare that the "conviction by final judgment" limitation under Section 19, Article VII of the present
Constitution prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his
appeal from his conviction by the trial court. Any application therefor, if one is made, should not be acted upon
or the process toward its grant should not be begun unless the appeal is withdrawn. Accordingly, the agencies or
instrumentalities of the Government concerned must require proof from the accused that he has not appealed
380
from his conviction or that he has withdrawn his appeal. Such proof may be in the form of a certification issued
by the trial court or the appellate court, as the case may be. The acceptance of the pardon shall not operate as an
abandonment or waiver of the appeal, and the release of an accused by virtue of a pardon, commutation of
sentence, or parole before the withdrawal of an appeal shall render those responsible therefor administratively
liable. Accordingly, those in custody of the accused must not solely rely on the pardon as a basis for the release
of the accused from confinement.
Narvasa, C .J ., Melo, Francisco, and Panganiban, JJ ., concur.

||| (People v. Casido, G.R. No. 116512 (Resolution), [July 30, 1996], 328 PHIL 1149-1155)
xxx xxx xxx

This rule shall fully bind pardons extended after 31 January 1995 during the pendency of the grantee's appeal.
(emphasis supplied)
It follows then that the conditional pardons granted in this case to accused-appellants William Casido and
Franklin Alcorin are void for having been extended on 19 January 1996 during the pendency of their instant
appeal.
WHEREFORE, the accused-appellants' Urgent Motion To Withdraw Appeal is hereby DENIED and the Bureau
of Corrections is DIRECTED to effect, with the support and assistance of the Philippine National Police, the rearrest of accused-appellants William Casido and Franklin Alcorin who shall then, forthwith, be reconfined at the
New Bilibid Prisons in Muntinlupa, Metro Manila, both within sixty (60) days from notice hereof, and to submit
a report thereon within the same period. In the meantime, further action on the appeal is suspended until the rearrest of the accused-appellants.
The Court further resolves to REQUIRE the officers of the Presidential Committee for the Grant of Bail,
Release, and Pardon to SHOW CAUSE, within thirty (30) days from notice hereof, why they should not be held
in contempt of court for acting on and favorably recommending approval of the applications for the pardon of
the accused-appellants despite the pendency of their appeal.
EN BANC
[G.R. No. L-409. January 30, 1947.]
ANASTACIO LAUREL, petitioner, vs. ERIBERTO MISA, respondent.
Pedro M. Recto and Que Tube C. Makalintal, for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for respondent.
SYLLABUS
1. INTERNATIONAL AND CONSTITUTIONAL LAW; ALLEGIANCE OF CITIZEN OR SUBJECT TO

SOVEREIGN; NATURE OF. A citizen or subject owes, not a qualified and temporary, but an absolute and
permanent allegiance, which consists in the obligation of fidelity and obedience to his government or sovereign.
Let copies of this Resolution be immediately furnished the Superintendent of the Bureau of Corrections and the
Presidential Committee for the Grant of Bail, Release, and Pardon.
SO ORDERED.
381
2. ID.; ID.; ID.; EFFECT OF ENEMY OCCUPATION. The absolute and permanent allegiance of the
inhabitants of a territory occupied by the enemy to their legitimate government or sovereign is not abrogated or
severed by the enemy occupation, because the sovereignty of the government or sovereign de jure is not
transferred thereby to the occupier.
3. ID.; ID.; ID.; SOVEREIGNTY, EFFECT ON, OF ENEMY OCCUPATION. The subsistence of the
sovereignty of the legitimate government in a territory occupied by the military forces of the enemy during a
war, "although the former is in fact prevented from exercising the supremacy over them" is one of the "rules of
international law of our times."
4. ID.; ID.; ID.; "TEMPORARY ALLEGIANCE" SIMILAR TO ALLEGIANCE OF FOREIGNER TO

GOVERNMENT OF HIS RESIDENCE. The words "temporary allegiance," repudiated by Oppenheim and
other publicists, as descriptive of the relations borne by the inhabitants of the territory occupied by the enemy
toward the military government established over them, may, at most, be considered similar to the temporary
allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides in return
for the protection he receives and does not do away with the absolute and permanent allegiance which the
citizen residing in a foreign country owes to his own government or sovereign.
5. ID.; ID.; ID.; ID.; TREASON IN FOREIGN COUNTRY AND IN TERRITORY UNDER MILITARY
OCCUPATION. Just as a citizen or subject of a government or sovereign may be prosecuted for and
convicted of treason committed in a foreign country, in the same way an inhabitant of a territory occupied by
the military forces of the enemy may commit treason against his own legitimate government or sovereign if he
adheres to the enemies of the latter by giving them aid and comfort.
6. ID.; ID.; ID.; ID.; ID.; ARTICLE 114 OF REVISED PENAL CODE, APPLICABILITY OF. Article 114 of
the Revised Penal Code, was applicable to treason committed against the national security of the legitimate
government, because the inhabitants of the occupied territory were still bound by their allegiance to the latter
during the enemy occupation.
circumstances, those laws that enforce public order and regulate the social and commercial life of the country,
he has, nevertheless, all the powers of a de facto government and may, at his pleasure, either change the existing
laws or make new ones when the exigencies of the military service demand such action, that is, when it is
necessary for the occupier to do so for the control of the country and the protection of his army, subject to the
restrictions or limitations imposed by the Hague Regulations, the usages established by civilized nations, the
laws of humanity and the requirements of public conscience.
8. ID.; ID.; ID.; ID.; MILITARY OCCUPANT CANNOT REPEAL OR SUSPEND OPERATION OF LAW OF
TREASON. Since the preservation of the allegiance or the obligation of fidelity and obedience of a citizen or
subject to his government or sovereign does not demand from him a positive action, but only passive attitude or
forbearance from adhering to the enemy by giving the latter aid and comfort, the occupant has no power, as a
corollary of the preceding consideration, to repeal or suspend the operation of the law of treason.
9. ID.; ID.; ID.; ID.; SUSPENDED ALLEGIANCE, EFFECT OF THEORY OF, ADOPTED. Adoption of
the petitioner's theory of suspended allegiance would lead to disastrous consequences for small and weak
nations or states, and would be repugnant to the laws of humanity and requirements of public conscience, for it
would allow invaders to legally recruit or enlist the Quisling inhabitants of the occupied territory to fight against
their own government without the latter incurring the risk of being prosecuted for treason, and even compel
those who are not to aid them in their military operation against the resisting enemy forces in order to
completely subdue and conquer the whole nation, and thus deprive them all of their own independence or
sovereignty such theory would sanction the action of invaders in forcing the people of a free and sovereign
country to be a party in the nefarious task of depriving themselves of their own freedom and independence and
repressing the exercise by them of their own sovereignty; in other words, to commit a political suicide.
10. ID., SOVEREIGNTY, IN WHOM DOES IT RESIDE. Sovereignty resides in the people of the
Philippines.
11. ID.; ID.; COMMONWEALTH OF THE PHILIPPINES A SOVEREIGN GOVERNMENT. The

Commonwealth of the Philippines was a sovereign government, though not absolute but subject to certain
limitations imposed in the Independence Act and incorporated as Ordinance appended to our Constitution.
7. ID.; ID.; ID.; ID.; POWER OF MILITARY OCCUPANT TO CHANGE LAWS OR MAKE NEW ONES.
Although the military occupant is enjoined to respect or continue in force, unless absolutely prevented by the
382
12. ID.; ID.; ID.; QUESTIONS OF SOVEREIGNTY, POLITICAL. The question of sovereignty is "a purely
political question, the determination of which by the legislative and executive departments of any government
conclusively binds the judges, as well as all other officer, citizens and subjects of the country."
13. ID.; ID.; ID.; PHILIPPINE REPUBLIC, RIGHT OF, TO PROSECUTE TREASON COMMITTED
DURING JAPANESE OCCUPATION. Just as treason may be committed against the Federal as well as
against the State Government, in the same way treason may have been committed during the Japanese
occupation against the sovereignty of the United States as well as against the sovereignty of the Philippine
Commonwealth; and that the change of our form of government from Commonwealth to Republic does not
affect the prosecution of those charged with the crime of treason committed during the Commonwealth, because
it is an offense against the same government and the same sovereign people, for Article XVIII of our
Constitution provides that: "The government established by this Constitution shall be known as the
Commonwealth of the Philippines. Upon the final and complete withdrawal of the sovereignty of the United
States and the proclamation of Philippine Independence, the Commonwealth of the Philippines shall thenceforth
be known as the Republic of the Philippines."
RESOLUTION
"In G. R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the petition for habeas corpus
filed by Anastacio Laurel and based on the theory that a Filipino citizen who adhered to the enemy giving the
latter aid and comfort during the Japanese occupation cannot be prosecuted for the crime of treason defined and
penalized by article 114 of the Revised Penal Code, for the reason (1) that the sovereignty of the legitimate
government in the Philippines and, consequently, the correlative allegiance of Filipino citizens thereto was then
suspended; and (2) that there was a change of sovereignty over these Islands upon the proclamation of the
Philippine Republic:
"(1) Considering that a citizen or subject owes, not a qualified and temporary, but an absolute and permanent
allegiance, which consists in the obligation of fidelity and obedience to his government or sovereign; and that
this absolute and permanent allegiance should not be confused with the qualified and temporary allegiance
which of foreigner owes to the government or sovereign of the territory wherein he resides, so long as he
remains there, in return for the protection he receives, and which consists in the obedience to the laws of the
government or sovereign. (Carlisle vs. United States, 21 Law. ed., 42g; Secretary of State Webster Report to the
President of the United States in the case of Thraser, 6 Web. Works, 526);
"Considering that the absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy
to their legitimate government or sovereign is not abrogated or severed by the enemy occupation, because the
sovereignty of the government or sovereign de jure is not transferred thereby to the occupier, as we have held in
the cases of Co Kim Cham v~. Valdez Tan Keh and Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons
(75 Phil., 285), and if it is not transferred to the occupant it must necessarily remain vested in the legitimate
government; that the sovereignty vested in the titular government (which is the supreme power which governs a
body politic or society which constitute the state) must be distinguished from the exercise of the rights inherent
thereto, and may be destroyed, or severed and transferred to another, but it cannot be suspended because the
existence of sovereignty cannot be suspended without putting it out of existence or divesting the possessor
thereof at least during the so-called period of suspension; that what may be suspended is the exercise of the
rights of sovereignty with the control and government of the territory occupied by the enemy passes temporarily
to the occupant; that the subsistence of the sovereignty of the legitimate government in a territory occupied by
the military forces of the enemy during the war, 'although the former is in fact prevented from exercising the
supremacy over them' is one of the 'rules of international law of our times'; (II Oppenheim, 6th Lauterpach ed.,
1944, p. 482), recognized, by necessary implication, in articles 23, 44, 45, and 52 of Hague Regulation; and
that, as a corollary of the conclusion that the sovereignty itself is not suspended and subsists during the enemy
occupation, the allegiance of the inhabitants to their legitimate government or sovereign subsists, and therefore
there is no such thing as suspended allegiance, the basic theory on which the whole fabric of the petitioner's
contention rests;
"Considering that the conclusion that the sovereignty of the United States was suspended in Castine, set forth in
the decision in the case of United States vs. Rice, 4 Wheaton, 246, 253, decided in 1819, and quoted in our
decision in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons, supra,
in connection with the question, not of sovereignty, but of the existence of a government de facto therein and its
power to promulgate rules and laws in the occupied territory, must have been based, either on the theory
adopted subsequently in the Hague Convention of 1907, that the military occupation of an enemy territory does
not transfer the sovereignty, or on the old theory that such occupation transfers the sovereignty to the occupant;
that, in the first case, the word 'sovereignty' used therein should be construed to mean the exercise of the rights
of sovereignty, because as this remains vested in the legitimate government and is not transferred to the
occupier, it cannot be suspended without putting it out of existence or divesting said government thereof; and
that in the second case, that is, if the said conclusion or doctrine refers to the suspension of the sovereignty
383
itself, it has become obsolete after the adoption of the Hague Regulations in 1907, and therefore it can not be
applied to the present case;
"Considering that even adopting the words 'temporary allegiance,' repudiated by Oppenheim and other
publicists, as descriptive of the relations borne by the inhabitants of the territory occupied by the enemy toward
the military government established over them, such allegiance may, at most, be considered similar to the
temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides
in return for the protection he receives as above described, and does not do away with the absolute and
permanent allegiance which the citizen residing in a foreign country owes to his own government or sovereign;
that just as a citizen or subject of a government or sovereign may be prosecuted for and convicted of treason
committed in a foreign country, in the same way an inhabitant of a territory occupied by the military forces of
the enemy may commit treason against his own legitimate government or sovereign if he adheres to the enemies
of the latter by giving them aid comfort; and that if the allegiance of a citizen or subject to his government or
sovereign is nothing more than obedience to its laws in return for the protection he receives, it would
necessarily follow that a citizen who resides in a foreign country or state would, on one hand, ipso facto acquire
the citizenship thereof since he has to obey, with certain exceptions, the laws of that country which enforce
public order and regulate the social and commercial life, in return for the protection he receives, and would, on
the other hand, lose his original citizenship, because he would not be bound to obey most of the laws of his own
government or sovereign, and would not receive, while in a foreign country, the protection he is entitled to in
his own;
"Considering that, as a corollary of the suspension of the exercise of rights of sovereignty by the legitimate
government in the territory occupied by the enemy military forces, because the authority of the legitimate power
to govern has passed into the hands of the occupant (Article 43, Hague Regulations), the political laws which
prescribe the reciprocal rights, duties and obligation of government and citizens, are suspended or in abeyance
during military occupation (Co Kim Cham vs. Valdez Tan Keh and Dizon, supra), for the only reason that as
they exclusively bear relation to the ousted legitimate government, they are inoperative or not applicable to the
government established by the occupant; that the crimes against national security, such as treason and
espionage, inciting to war, correspondence with hostile country, flight to enemy's country, as well as those
against public order, such as rebellion, sedition, and disloyalty, illegal possession of firearms, which are of
political complexion because they bear relation to, and are penalized by our Revised Penal Code as crimes
against the legitimate government, are also suspended or become inapplicable as against the occupant, because
they can not be committed against the latter (Peralta 1.S. Director of Prisons, supra); and that, while the offenses
against public order to be preserved by the legitimate government were inapplicable as offenses against the
invader for the reason above stated, unless adopted by him, were also ill operative as against the ousted
government for the latter was not responsible for the preservation of the public order in the occupied territory,
yet article 114 of the said Revised Penal Code, was applicable to treason committed against the national security
of the legitimate government, because the inhabitants of the occupied territory were still bound by their
allegiance to the latter during the enemy occupation;
"Considering that, although the military occupant is enjoined to respect or continue in force, unless absolutely
prevented by the circumstances, those laws that enforce public order and regulate the social and commercial life
of the country, he has, nevertheless, all the powers of a de facto government and may, at his pleasure, either
change the existing laws or make new ones when the exigencies of the military service demand such action, that
is, when it is necessary for the occupier to do so for the control of the country and the protection of his army,
subject to the restrictions or limitations imposed by the Hague Regulations, the usages established by civilized
nations, the laws of humanity and the requirements of public conscience ( Peralta vs. Director of Prisons, supra;
1940 United States Rules of Land Warfare 76, 77); and that, consequently, all acts of the military occupant
dictated within these limitations are obligatory upon the inhabitants of the territory, who are bound to obey
them, and the laws of the legitimate government which have not been adopted, as well and those which, though
continued in force, are in conflict with such laws and orders of the occupier, shall be considered as suspended or
not in force and binding upon said inhabitants;
"Considering that, since the preservation of the allegiance or the obligation of fidelity and obedience of a citizen
or subject to his government or sovereign does not demand from him a positive action, but only passive attitude
or forbearance from adhering to the enemy by giving the latter aid and comfort, the occupant has no power, as a
corollary of the preceding consideration, to repeal or suspend the operation of the law of treason, essential for
the preservation of the allegiance owed by the inhabitants to their legitimate government, or compel them to
adhere and give aid and comfort to him; because it is evident that such action is not demanded by the exigencies
of the military service or not necessary for the control of the inhabitants and the safety and protection of his
army, and because it is tantamount to practically transfer temporarily to the occupant their allegiance to the
titular government or sovereign; and that, therefore, if an inhabitant of the occupied territory were compelled
illegally by the military occupant, through force, threat or intimidation, to give him aid and comfort, the former
may lawfully resist and die if necessary as a hero, or submit thereto without becoming a traitor;
"Considering that adoption of the petitioner's theory of suspended allegiance would lead to disastrous
consequences for small and weak nations or states, and would be repugnant to the laws of humanity and
requirements of public conscience, for it would allow invaders to legally recruit or enlist the Quisling
inhabitants of the occupied territory to fight against their own government without the latter incurring the risk of
being prosecuted for treason, and even compel those who are not to aid them in their military operation against
384
the resisting enemy forces in order to completely subdue and conquer the whole nation, and thus deprive them
all of their own independence or sovereignty such theory would sanction the action of invaders in forcing the
people of a free and sovereign country to be a party i n the nefarious task of depriving themselves of their own
freedom and independence and repressing the exercise by them of their own sovereignty; in other words, to
commit a political suicide;
"(2) Considering that the crime of treason against the government of the Philippines defined and penalized in
article 114 of the Penal Code, though originally intended to be a crime against said government as then
organized by authority of the sovereign people of the United States, exercised through their authorized
representative, the Congress and the President of the United States, was made, upon the establishment of the
Commonwealth Government in 1935 , a crime against the Government of the Philippines established by
authority of the people of the Philippines, in whom the sovereignty resides according to section 1, Article II, of
the Constitution of the Philippines, by virtue of the provision of section 2, Article XVI thereof, which provides
that all laws of the Philippine Islands . . . shall remain operative, unless inconsistent with this Constitution . . .
and all references in such laws to the Government or officials of the Philippine Islands, shall be construed, in so
far as applicable, to refer to the Government and corresponding officials under this Constitution;'
Considering that the Commonwealth of the Philippines was a sovereign government, though not absolute but
subject to certain limitations imposed in the Independence Act and incorporated as Ordinance appended to our
Constitution, was recognized not only by the Legislative Department or Congress of the United States in
approving the Independence Law above quoted and the Constitution of the Philippines, which contains the
declaration that 'Sovereignty resides in the people and all government authority emanates from them' (section 1,
Article II), but also by the Executive Department of the United States; that the late President Roosevelt in one of
his messages to Congress said, among others, 'As I stated on August 12, 1943, the United States in practice
regards the Philippines as having now the status as a government of other independent nations in fact all the
attributes of complete and respected nationhood' (Congressional Record, Vol. 29, part 6, page 8173); and that it
is a principle upheld by the Supreme Court of the United States in many cases, among them in the case of Jones
vs. United States (137 U. S., 202; 34 Law. ed., 691, 696) that the question of sovereignty is 'a purely political
question, the determination of which by the legislative and executive departments of any government
conclusively binds the judges, as well as all other officers, citizens and subjects of the country.'
"Considering that section I (1) of the Ordinance appended to the Constitution which provides that pending the
final and complete withdrawal of the sovereignty of the United States 'All citizens of the Philippines shall owe
allegiance to the United States', was one of the few limitations of the sovereignty of the Filipino people retained
by the United States, but these limitations do not do away or are not inconsistent with said sovereignty, in the
same way that the people of each State of the Union preserves its own sovereignty although limited by that of
the United States conferred upon the latter by the States; that just as to reason may be committed against the
Federal as well as against the State Government, in the same way treason may have been committed during the
Japanese occupation against the sovereignty of the United States as well as against the sovereignty of the
Philippine Commonwealth; and that the change of our form of government from Commonwealth to Republic
does not affect the prosecution of those charged with the crime of treason committed during the
Commonwealth, because it is an offense against the same government and the same sovereign people, for
Article XVIII of our Constitution provides that 'The government established by this Constitution shall be known
as the Commonwealth of the Philippines. Upon the final and complete withdrawal of the sovereignty of the
United States and the proclamation of Philippine independence, the Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines';
"This Court resolves, without prejudice to write later on a more extended opinion, to deny the petitioner's
petition, as it is hereby denied, for the reasons above set forth and for others to be stated in the said opinion,
without prejudice to concurring opinion therein, if any. Messrs. Justices Paras and Hontiveros dissent in a
separate opinion. Mr. Justice Perfecto concurs in a separate opinion."
||| (Laurel v. Misa, G.R. No. L-409 (Resolution), [January 30, 1947], 77 PHIL 856-906)
FIRST DIVISION
[G.R. No. L-856. April 18, 1949.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SUSANO PEREZ (alias KID PEREZ),
defendant-appellant.
Crispin Oben and Isidro Santiago for appellant.
Assistant Solicitor General Manuel P. Barcelona and Solicitor Esmeraldo Umali for appellee.
SYLLABUS
385
1. CRIMINAL LAW; TREASON; ADHERENCE TO THE ENEMY, EXTENT AND SCOPE OF. In a broad
sense, the law of treason does not prescribe all kinds of social, business and political intercourse between the
belligerent occupants of the invaded country and its inhabitants. In the nature of things, the occupation of a
country by the enemy is bound to create relations of all sorts between the invaders and the natives. What aid and
comfort constitute treason must depend upon their nature, degree and purpose. To draw a line between
treasonable and untreasonable assistance is not always easy. The scope of adherence to the enemy is
comprehensive, its requirement indeterminate.
and meet them. There is no element of surprise or anomaly involved. In fact, under the general law of criminal
procedure, conviction for a crime different from that designated in the complaint or information is allowed and
practised, provided only that such crime "is included or described in the body of the information, and is
afterwards justified by the proof presented during the trial."
DECISION
TUASON, J p:
2. ID.; ID.; ID. As a general rule, to be treasonous the extent of the aid and comfort given to the enemies
must be to render assistance to them as enemies and not merely as individuals and, in addition, be directly in
furtherance of the enemies' hostile designs. To make a simple distinction: To lend or give money to an enemy as
a friend or out of charity to the beneficiary so that he may buy personal necessities is to assist him as an
individual and is not technically traitorous. On the other hand, to lend or give him money to enable him to buy
arms or ammunition to use in waging war against the giver's country enhances his strength and by the same
count injuries the interest of the government of the giver. That is treason.
3. ID.; ID.; COMMANDEERING OF WOMAN TO SATISFY THE LUST OF THE ENEMY IS NOT
TREASON. "Commandeering" of women to satisfy the lust of Japanese officers of men or to enliven the
entertainments held in their honor was not treason even though the women and the entertainments helped to
make life more pleasant for the enemies and boost their spirit; he was not guilty any more than the women
themselves would have been if they voluntarily and willingly had surrender their bodies or organized the
entertainments. Sexual and social relations with the Japanese did not directly and materially tend to improve
their was efforts or to weaken the power of the United States. The acts herein charged were not, by fair
implication, calculated to strengthen the Japanese Empire or its army or to cripple the defense and resistance of
the other side. Whatever favorable effect the defendant's collaboration with the Japanese might have in their
prosecution of the war was trivial, imperceptible, and unintentional. Intent of disloyalty is a vital ingredient in
the crime of treason, which, in the absence of admission, may be gathered from the nature and circumstance of
each particular case.
4. CRIMINAL LAW AND PROCEDURE; TREASON; CONVICTION OF ACCUSED FOR CRIME OF

RAPE ALLEGED AND INCLUDED IN THE INFORMATION. Section 2 of Commonwealth Act No. 682
requires that the private crimes of which an accused of treason may be convicted must be averred in the
information and sustained by evidence. In the light of this enactment, the defendant was warned of the hazard
that he might be found guilty of rapes if he was innocent of treason and thus afforded an opportunity to prepare
Susano Perez alias Kid Perez was convicted of treason by the 5th Division of the People's Court sitting in Cebu
City and sentenced to death by electrocution.
Seven counts were alleged in the information but the prosecution offered evidence only on counts 1, 2, 4, 5 and
6, all of which, according to the court, were substantiated. In a unanimous decision, the trial court found as
follows.
"As regards count No. 1

"Count No. 1 alleges that the accused, together with the other Filipinos, recruited, apprehended and
commandeered numerous girls and women against their will for the purpose of using them, as in fact they were
used, to satisfy the immoral purpose and sexual desire of Colonel Mini, and among such unfortunate victims,
were Felina Laput, Eriberta Ramo alias Miami Ramo, Eduarda Daohog, Eutiquia Lamay, Feliciana Bonalos and
Flaviana Bonalos.
"It would be unnecessary to recite here the testimonies of all the victims of the accused; it is sufficient to
reproduce here succinctly the testimony of Eriberta Ramo. She testified that on June 15, 1942, the accused came
to her house to get her and told her that she was wanted in the house of her aunt, but instead, she was brought to
the house of the Puppet Governor Agapito Hontaosas; that she escaped and returned to Baclayon her
hometown that the accused came again and told bar that Colonel Mini wanted her to be his Information Clerk;
that she did not accept the job that a week later, the accused came to Baclayon to get her, and succeeded in
taking some other girls to Puppet Governor Agapito Hontaosas; that Governor Hontaosas told her that
Colonel Mini wanted her to be his wife; that when she was brought to Colonel Mini the latter had nothing on
386
but a 'G' string; that he, Colonel Mini threatened her with a sword, tied her to a bed and with force succeeded in
having carnal knowledge with her; that on the following night, again she was brought to Colonel Mini and again
she was raped; that finally she was able to escape and stayed in hiding for three weeks and only came out from
the hiding when Colonel Mini left Tagbilaran.
"Count No. 2 of the information substantially alleges: That the accused in company with some Japs and
Filipinos took Eriberta Ramo and her sister Cleopatra Ramo from their home in Baclayon to attend a banquet
and a dance organized in honor of Colonel Mini by the Puppet Governor, Agapito Hontaosas in order that said
Japanese Colonel might select those girls who would later be taken to satisfy his carnal appetite and that by
means of threat, force and intimidation, the above mentioned two sisters were brought to the headquarters of the
Japanese Commander at the Mission Hospital in Tagbilaran where Eriberta Ramo was forced to live a life of
shame. All these facts alleged in count No. 2 were testified to by said witnesses Eriberta Ramo and her mother
Mercedes de Ramo. It is not necessary here to recite once more their testimony in support of the allegations in
count No. 2; this Court is fully convinced that the allegations in said count No. 2 were fully substantiated by the
evidence adduced.
"Count No. 4 substantially alleges that on July 16, 1942, the two girls named Eduarda S. Daohog and Eutiquia
Lamay, were taken from their homes in Corella, Bohol, by the accused and his companion named Vicente
Bullecer, and delivered to the Japanese Officer, Dr. Takibayas to satisfy his carnal appetite, but these two, the
accused Susano Perez and his companion Vicente Bullecer, before delivering them to said Japanese Officer,
satisfied first their lust the accused Susano Perez raping Eduarda S. Daohog, and his companion, Vicente
Bullecer, the other girl Eutiquia Lamay. Eduarda S. Daohog, testifying, said: that while on the way to
Tagbilaran, the accused through force and intimidation, raped her in an uninhabited house; that she resisted with
all her force against the desire of the accused, but of no avail; that upon arriving in Tagbilaran, she was
delivered to the Japanese Officer named Takibayas who also raped her. Eutiquia Lamay testified that on July 16,
1942, the accused and his companion, Bullecer, went to her house to take her and her sister; that her sister was
then out of the house; that the accused threatened her with a revolver if she refuses to go; that she was placed in
a car where Eduarda Daohog was; that while they were in the car, the accused carried Eduarda out of the car,
and their companion Bullecer took the other witness (Eutiquia Lamay); that when the accused and Eduarda
returned to the car, the latter, Eduarda, covered her face, crying; that later, she and Eduarda were taken to the
Governor's house; that on arriving and in the presence of the Puppet Governor Hontaosas, the Governor
exclaimed: 'I did not call for these girls'; but the accused replied saying: 'These girls talked bad against the Japs,
and that is why we arrested them'; that the said Governor Hontaosas then, said: 'Take them to the Japs'; that the
accused and Bullecer brought the two girls to the Japanese headquarters; that Eduarda was taken to one room by
the Japanese Captain called Dr. Takibayas, and she (Eutiquia Lamay) was taken to another room by another
Japanese living in that house; that she was raped by that Jap while in the room; that she resisted all she could,
but of no avail. "In the light of the testimonies of these two witnesses, Eduarda S. Daohog and Eutiquia Lamay,
all the allegations in Count No. 4 were fully proven beyond reasonable doubt.
"Count No. 5 alleges: That on or about June 4, 1942, the said accused commandeered Feliciana Bonalos and her
sister Flaviana Bonalos on the pretext that they were to be taken as witnesses before a Japanese Colonel in the
investigation of a case against a certain Chinese (Insik Eping), and upon arriving at Tagbilaran, Bohol, the
accused brought the aforesaid two girls to the residence of Colonel Mini, Commander of the Japanese Armed
Forces in Bohol and by means of violence, threat and intimidation, said Japanese Colonel abused and had
sexual intercourse with Flaviana Bonalos; that the accused subsequently brought Flaviana Bonalos to a small
house near the headquarters of Colonel Mini and through violence, threat and intimidation, succeeded in having
carnal knowledge with her against her will; that about two days, later, upon the pretext of conducting the
unfortunate girls to their home, the said accused brought the other girl Feliciana Bonalos to a secluded place in
Tagbilaran, Bohol, and in the darkness, by means of threat and violence had carnal knowledge with her against
her will.
"Feliciana Bonalos testifying in this count, declared: that the accused came to get her on the pretext that she
was to be used as witness in a case affecting certain Chinaman before Colonel Mini; that she and her younger
sister Flaviana were brought in a car driven by the accused; that they were brought to the house of Colonel
Mini; that her sister Flaviana was conducted into a room and after remaining in the same for about an hour, she
came out with her hair and her dress in disorder; that Flaviana told her immediately that she was raped against
her will by Colonel Mini; that she (Feliciana), after leaving the residence of said Jap officer, was taken by Perez
to an uninhabited house and there by threat and intimidation, the accused succeeded in raping her; that when she
returned to her (the witness), Flaviana was crying; that the following day while conducting the two girls back to
their hometown, she (Feliciana) was also raped by the accused in an uninhabited house, against her will.
387
"Victoriana Arayan (mother of Feliciana and Flaviana Bonalos) testified as follows: That on June 15, 1942, the
accused came and told her that the Japs needed her daughters to be witnesses; that accordingly, her daughters,
under that understanding, started for Tagbilaran, that later, she went to Tagbilaran to look for her daughters and
she found them in the office of the Puppet Governor; that on seeing her, both daughters wept and told her that
they were turned over to the Japs and raped them; that her daughter Flaviana told her (the witness) that after the
Japs had raped her the accused also raped her (Flaviana) in an uninhabited house; that the accused did not
permit her two daughters to return home on the pretext that the Puppet Governor was then absent and in the
meanwhile they stayed in the house of the accused Perez; that when her daughters returned to her house
ultimately, they related to her (mother) what happened; that both daughters told her they would have preferred
death rather than to have gone to Tagbilaran; that Feliciana told her (the mother) that the accused had raped her.
of the Puppet Governor where they were severely reprimanded by the latter for not attending the dance held on
June 25, 1942; that the real purpose in compelling them to attend said dances and receptions was to select from
among them the best girl that would suit the fancy of Colonel Mini for immoral purposes; that she and her
companions were always afraid of the accused Perez whenever he came to said hospital; that on one occasion,
one of the nurses on perceiving the approach of the accused, ran up into her room, laid down on her bed and
simulated to be sick; that said accused, not satisfied, went up into the room of that particular nurse and pulled
out the blanket which covered her and telling her that it was only her pretext that she was sick.
"The testimony of Lt. Natividad Barcinas is fully corroborated by that of Nicanora Ralameda. Said testimony
need not be reproduced here."
"The information given by Feliciana to her mother is admitted in evidence as a part of the res gestae regardless
of the time that had elapsed between the occurrence and the time of the information. In the manner these two
witnesses testified in Court, there could be no doubt that they were telling the absolute truth. It is hard to
conceive that these girls would assume and admit the ignominy they have gone through if they were not true.
The Court is fully convinced that all the allegations contained in Count No. 5 have been proven by the
testimonies of these two witnesses beyond reasonable doubt.
In a carefully written brief for the appellant, these findings are not questioned, but it is contended that the deeds
committed by the accused do not constitute treason. The Solicitor General submits the opposite view, and
argues that "to maintain and preserve the morals of the soldiers has always been, and will always be, a
fundamental concern of army authorities, for the efficiency of an army rests not only on its physical attributes
but also, mainly, on the morale of its soldiers" (citing the annual report of the Chief of Staff, United States
Army, for the fiscal year ending June 30, 1933).
If furnishing women for immoral purposes to the enemies was treason because women's company kept up their
morale, so fraternizing with them, entertaining them at parties, selling them food and drinks, and kindred acts,
would be treason. For any act of hospitality without doubt produces the same general result. Yet by common
agreement those and similar manifestations of sympathy and attachment are not the kind of disloyalty that are
punished as treason.
"Count No. 6, alleges: That the accused, together with his Filipino companions, apprehended Natividad
Barcinas, Nicanora Ralameda and Teotima Barcinas, nurses of the provincial hospital, for not having attended a
dance and reception organized by the Puppet Governor in honor of Colonel Mini and other Japs high ranking
officers, which was held in Tagbilaran market on June 25, 1942; that upon being brought before the Puppet
Governor, they were severely reprimanded by the latter; that on July 8, 1942, again said nurses were forced to
attend another banquet and dance in order that the Jap officers Mini and Takibayas might make a selection
which girl would suit best their fancy; that the real purpose behind those forcible invitations was to lure them to
the residence of said Japanese Officer Mini for immoral purposes.
In a broad sense, the law of treason does not prescribe all kinds of social, business and political intercourse
between the belligerent occupants of the invaded country and its inhabitants. In the nature of things, the
occupation of a country by the enemy is bound to create relations of all sorts between the invaders and the
natives. What aid and comfort constitute treason must depend upon their nature, degree and purpose. To draw a
line between treasonable and untreasonable assistance is not always easy. The scope of adherence to the enemy
is comprehensive, its requirement indeterminate, as was said in Cramer vs. United States, 89 Law. ed., 1441.
"Natividad Barcinas, a Lieutenant of the P. A., testified at length. She declared: That on June 29, 1942, she and
companion nurses, saw the accused coming to the hospital with a revolver and took them on a car to the office
388
As a general rule, to be treasonous the extent of the aid and comfort given to the enemies must be to render
assistance to them as enemies and not merely as individuals and, in addition, be directly in furtherance of the
enemies' hostile designs. To make a simple distinction: To lend or give money to an enemy as a friend or out of
charity to the beneficiary so that he may buy personal necessities is to assist him as an individual and is not
technically traitorous. On the other hand, to lend or give him money to enable him to buy arms or ammunition
to use in waging war against the giver's country enhances his strength and by the same count injures the interest
of the government of the giver. That is treason. (See United States vs. Fricke, 259 F., 673; 63 C. J., 816, 817.)
Applying these principles to the case at bar, appellant's first assignment of error is correct. His
"commandeering" of women to satisfy the lust of Japanese officers or men or to enliven the entertainments held
in their honor was not treason even though the women and the entertainments helped to make life more pleasant
for the enemies and boost their spirit; he was not guilty any more than the women themselves would have been
if they voluntarily and willingly had surrendered their bodies or organized the entertainments. Sexual and social
relations with the Japanese did not directly and materially tend to improve their war efforts or to weaken the
power of the United States. The acts herein charged were not, by fair implication, calculated to strengthen the
Japanese Empire or its army or to cripple the defense and resistance of the other side. Whatever favorable effect
the defendant's collaboration with the Japanese might have in their prosecution of the war was trivial,
imperceptible, and unintentional. Intent of disloyalty is a vital ingredient in the crime of treason, which, in the
absence of admission, may be gathered from the nature and circumstances of each particular case.
But the accused may be punished for the rape of Eriberta Ramo, Eduarda Daohog, Eutiquia Lamay and Flaviana
Bonalos as principal by direct participation. Without his cooperation in the manner above stated, these rapes
could not have been committed.
All the above mentioned rapes are alleged in the information and substantiated by the evidence.
Counsel assails the constitutionality of this provision as violative of section 1, paragraph 17, Article III of the
Constitution, which guarantees to an accused the right "to be informed of the nature and cause of the accusation
against him." The contention is not well taken. The provision in question requires that the private crimes of
which an accused of treason may be convicted must be averred in the information and sustained by evidence. In
the light of this enactment, the defendant was warned of the hazard that he might be found guilty of rapes if he
was innocent of treason and thus afforded an opportunity to prepare and meet them. There is no element of
surprise or anomaly involved. In fact, under the general law of criminal procedure, conviction for a crime
different from that designated in the complaint or information is allowed and practised, provided only that such
crime "is included or described in the body of the information, and is afterwards justified by the proof presented
during the trial." (People vs. Perez, 45 Phil., 599.)
The defendant personally assaulted and abused two of the offended girls but these assaults are not charged
against him and should be ruled out. The crime of coercion alleged and found on count No. 6 need not be
noticed in view of the severity of the penalty for the other crimes which he must suffer.
We find the defendant guilty of four separate crimes of rape and sentence him for each of them to an
indeterminate penalty of from 10 years of prision mayor to 17 years and 4 months of reclusion temporal, with
the accessories of law, to indemnify each of the offended women in the sum of P3,000, and to pay the costs; it
being understood that the total duration of these penalties shall not exceed forty years.
Moran, C. J ., Feria, Perfecto, Bengzon, Briones and Reyes, JJ ., concur.
||| (People v. Perez, G.R. No. L-856, [April 18, 1949], 83 PHIL 314-325)
Conviction of the accused of rapes instead of treason finds express sanction in section 2 of Commonwealth Act
No. 682, which says:
EN BANC
"Provided further, That where, in its opinion, the evidence is not sufficient to support the offense (treason)
charged, the People's Court may, nevertheless, convict and sentence the accused for any crime included in the
acts alleged in the information and established by the evidence."
[G.R. No. L-477. June 30, 1947.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. APOLINAR ADRIANO, defendant-appellant.
Remedios P. Nufable for appellant.
389
Assistant Solicitor General Kapunan, Jr. and Solicitor Lacson for appellee.
sustain a finding that the accused actually gave aid and comfort to the enemy. Every act, movement, deed, and
word of the defendant charged to constitute treason must be supported by the testimony of two witnesses."
(Cramer vs. United States, 65 SUP. Ct., 918.)
SYLLABUS
1. CRIMINAL LAW; TREASON; EVIDENCE; MAKAPILI MEMBERSHIP EVIDENCE OF ADHERENCE

AND GIVING AID AND COMFORT TO ENEMY. The mere fact of having joined a Makapili organization
is evidence of both adherence to the enemy and giving him aid and comfort. Unless forced upon one against his
will, membership in the Makapili organization imports treasonable intent, considering the purpose for which the
organization was created, which, according to the evidence, were "to accomplish the fulfillment of the
obligations assumed by the Philippines in the Pact of Alliance with the Empire of Japan"; "to shed blood and
sacrifice the lives of our people in order to eradicate Anglo-Saxon influence in East Asia"; "to collaborate
unreservedly and unstintedly with the Imperial Japanese Army and Navy in the Philippines"; and "to fight the
common enemies."
2. ID.; ID.; ID.; ADHERENCE HOW PROVED. Adherence, unlike overt acts, need not be proved by the
oaths of two witnesses. Criminal intent and knowledge may be gathered from the testimony of one witness, or
from the nature of the act itself, or from the circumstances surrounding the act. (Cramer vs. United States, 65
Sup. Ct., 918.)
5. ID.; ID.; ID.; ID. This provision is so exacting and so uncompromising in regard to the amount of
evidence that where two or more witnesses give oaths to an overt act and only one of them is believed by the
court or jury, the defendant is entitled to discharge.
DECISION
TUASON, J p:
This is an appeal from a judgment of conviction for treason by the People's Court sentencing the accused to life
imprisonment, P10,000 fine, and the costs.
The information charged:

3. ID.; ID.; ID.; MAKAPILI MEMBERSHIP AS AN OVERT ACT, HOW PROVED. At the same time,
being a Makapili is in itself constitutive of an overt act. It is not necessary, except for the purpose of increasing
the punishment, that the defendant actually went to battle or committed nefarious acts against his country or
countrymen. But membership as a Makapili, as an overt act, must be established by the deposition of two
witnesses.
4. ID.; ID.; ID.; TWO WITNESSES RULE, MEANING OF. "Each of the witnesses must testify to the whole
of the overt act; or, if it is separable, there must be two witnesses to each part of the overt act." (VII Wigmore on
Evidence, 3d ed., section 2038, P. 271.) "It is necessary to produce two direct witnesses to the whole overt act. It
may be possible to piece bits together of the overt act; but, if so, each bit must have the support of two
oaths; . . ." ( United States vs. Robinson, D. C. S. D., N. Y., 259 Fed., 685.) "The very minimum function that an
overt act must perform in a treason prosecution is that it show sufficient action by the accused, in its setting, to
"That between January and April, 1945 or thereabout, during the occupation of the Philippines by the Japanese
Imperial Forces, in the Province of Nueva Ecija and in the mountains in the Island of Luzon, Philippines, and
within the jurisdiction of this Court, the above-named accused, Apolinar Adriano, who is not a foreigner, but a
Filipino citizen owing allegiance to the United States and the Commonwealth of the Philippines, in violation of
said allegiance, did then and there willfully, unlawfully, criminally and treasonably adhere to the Military
Forces of Japan in the Philippines, against which the Philippines and the United States were then at war, giving
the said enemy aid and comfort in the manner as follows:
"That as a member of the Makapili, a military organization established and designed to assist and aid militarily
the Japanese Imperial Forces in the Philippines in the said enemy's war efforts and operations against the United
States and the Philippines, the herein accused bore arm and joined and assisted the Japanese Military Forces and
390
the Makapili Army in armed conflicts and engagements against the United States armed forces and the
Guerrillas of the Philippine Commonwealth in the Municipalities of San Leonardo and Gapan, Province of
Nueva Ecija, and in the mountains of Luzon, Philippines, sometime between January and April, 1945. Contrary
to Law."
The prosecution did not introduce any evidence to substantiate any of the facts alleged except that of
defendant's having joined the Makapili organization. What the People's court found is that the accused
participated with Japanese soldiers in certain raids and in confiscation of personal property. The court below,
however, said these acts had not been established by the testimony of two witnesses, and so regarded then
merely as evidence of adherence to the enemy. But the court did find established under the two witness rule, so
we infer, "that the accused and other Makapilis had their headquarters in the enemy garrison at Gapan, Nueva
Ecija; that the accused was in Makapili military uniform; that he was armed with rifle; and that he drilled with
other Makapilis under a Japanese instructor; . . . that during the same period, the accused in Makapili military
uniform and with a rifle, performed duties as sentry at the Japanese garrison and Makapili headquarters in
Gapan, Nueva Ecija ;" "that upon the liberation of Gapan, Nueva Ecija, by the American forces, the accused and
other Makapilis retreated to the mountains with the enemy ;" and that "the accused, rifle in hand, later
surrendered to the Americans."
Even the findings of the court recited above in quotations are not borne out by the proof of two witnesses. No
two of the prosecution witnesses testified to a single one of the various acts of treason imputed by them to the
appellant. Those who gave evidence that the accused took part in raids and seizure of personal property, and
performed sentry duties and military drills, referred to acts allegedly committed on different dates without any
two witnesses coinciding in any one specific deed. There is only one item on which the witnesses agree: it is
that the defendant was a Makapili and was seen by them in Makapili uniform carrying arms. Yet, again, on this
point it cannot be said that one witness is corroborated by another if corroboration means that two witnesses
have seen the accused doing at least one particular thing, be it a routine military chore, or just walking or eating.
unlike overt acts, need not be proved by the oaths of two witnesses. Criminal intent and knowledge may be
gathered from the testimony of one witness, or from the nature of the act itself, or from the circumstances
surrounding the act. (Cramer vs. U. S., 66 Sup. Ct., 918.)
At the same time, being a Makapili is in itself constitutive of an overt act. It is not necessary, except for the
purpose of increasing the punishment, that the defendant actually went to battle or committed nefarious acts
against his country or countrymen. The crime of treason was committed if he placed himself at the enemy's call
to fight side be side with him when the opportune time came even though an opportunity never presented itself.
Such membership by its very nature gave the enemy aid and comfort. The enemy derived psychological comfort
in the knowledge that he had on his side nationals of the country with which his was at war. It furnished the
enemy aid in that his cause was advanced, his forces augmented, and his courage was enhanced by the
knowledge that he could count on men such as the accused and his kind who were ready to strike at their own
people. The practical effect of it was no different from that of enlisting in the invader's army.
But membership as a Makapili, as an overt act, must be established by the deposition of two witnesses. Does the
evidence in the present case meet this statutory test? Is the two-witness requirement fulfilled by the testimony of
one witness who saw the appellant in Makapili uniform bearing a gun one day, another witness another day, and
so forth?
The Philippine law on treason is of Anglo-American origin and so we have to look for guidance from American
sources on its meaning and scope. Judicial interpretation has been placed on the two-witness principle by
American courts, and authoritative text writers have commented on it. We cull from American materials the
following excerpts which appear to carry the stamp of authority.
Wharton's Criminal Evidence, Vol. 3, section 1396, p. 2282, says:

We take it that the mere fact of having joined a Makapili organization is evidence of both adherence to the
enemy and giving him aid and comfort. Unless forced upon one against his will, membership in the Makapili
organization imports treasonable intent, considering the purposes for which the organization was created,
which, according to the evidence, were "to accomplish the fulfillment of the obligations assumed by the
Philippines in the Pact of Alliance with the Empire of Japan;" "to shed blood and sacrifice the lives of our
people in order to eradicate Anglo-Saxon influence in East Asia;" "to collaborate unreservedly and unstintedly
with the Imperial Japanese Army and Navy in the Philippines ;" and "to fight the common enemies." Adherence,
"In England the original Statute of Edward, although requiring both witnesses to be to the same overt act, was
held to mean that there might be one witness to an overt act and another witness to another overt act of the same
species of treason; and, in one case it has been intimated that the same construction might apply in this country.
But, as Mr. Wigmore so succinctly observes: 'The opportunity of detecting the falsity of the testimony, by
sequestering the two witnesses and exposing their variance in details, is wholly destroyed by permitting them to
391
speak to different acts.' The rule as adopted in this country by all the constitutional provisions, both state and
Federal, properly requires that two witnesses shall testify to the same overt act. This also is now the rule in
England."
More to the point is this statement from VII Wigmore on Evidence, 3d ed., section 2038, p. 271:
"Each of the witnesses must testify to the whole of the overt act; or, if it is separable, there must be two
witnesses to each part of the overt act."
Learned Hand, J., in United States vs. Robinson (D. C. S. D., N. Y., 259 Fed., 685), expressed the same idea: "It
is necessary to produce two direct witnesses to the whole overt act. It may be possible to piece bits together of
the overt act; but, if so, each bit must have the support of two oaths; . . ." (Copied as footnote in wigmore on
Evidence, ante.) And in the recent case of Cramer vs. United States (sup. Ct., 918), decided during the recent
World War, the Federal Supreme Court lays down this doctrine: "The very minimum function that an overt act
must perform in a treason prosecution is that it show sufficient action by the accused, in its setting, to sustain a
finding that the accused actually gave aid and comfort to the enemy. Every act, movement, deed, and word of
the defendant charged to constitute treason must be supported by the testimony of two witnesses."
the difficulties and went ahead not merely in spite but because of the objections. (Cramer vs. United States,
ante.) More, the rule, it is said, attracted the members of the Constitutional Convention "as one of the few
doctrines of Evidence entitled to be guaranteed against legislative change." (Wigmore on Evidence, ante,
section 2039, p. 272, citing Madison's Journal of the Federal Convention, Scott's ed., II, 564, 566. ) Mr. Justice
Jackson, who delivered the majority opinion in the celebrated Cramer case, said: "It is not difficult to find
grounds upon which to quarrel with this Constitutional provision. Perhaps the framers placed rather more
reliance on direct testimony than modern researchers in psychology warrant. Or it may be considered that such a
quantitative measure of proof, such a mechanical calibration of evidence is a crude device at best or that its
protection of innocence is too fortuitous to warrant so unselective an obstacle to conviction. Certainly the
treason rule, whether wisely or not, is severely restrictive." It must be remembered, however, that the
Constitutional Convention was warned by James Wilson that " 'Treason may sometimes be practiced in such a
manner, as to render proof extremely difficult as in a traitorous correspondence with an enemy.' The
provision was adopted not merely in spite of the difficulties it put in the way of prosecution but because of
them. And it was not by whim or by accident, but because one of the most venerated of that venerated group
considered that 'prosecutions for treason were generally virulent.' "
Such is the clear meaning of the two-witness provision of the American Constitution. By extension, the lawmakers who introduced that provision into the Philippine statute books must be understood to have intended that
the law should operate with the same inflexibility and rigidity was the American forefathers meant.
The judgment is reversed and the appellant acquitted with costs charged de oficio.
In the light of these decisions and opinions we have to set aside the judgment of the trial court. To the possible
objection that the reasoning by which we have reached this conclusion savors of sophism, we have only to say
that the authors of the constitutional provision of which our treaon law is a copy purposely made conviction for
treason difficult, the rule "severely restrictive." This provision is o exacting and so uncompromising in regard to
the mount of evidence that where two or more witnesses give oaths to an overt act and only one of them is
believed by the court or jury, the defendant, it has been said and held, is entitled to discharge, regardless of any
moral conviction of the culprit's guilt as gauged and tested by he ordinary and natural methods, with which we
are familiar, of finding the truth. Natural inferences, however strong or conclusive, flowing from the testimony
of a most trustworthy witness or from other sources are unavailing as a substitute for the needed corroboration
in t e form of direct testimony of another eye-witness to t e same overt act.
Moran, C.J ., Feria, Pablo, Perfecto, Bengzon, Briones, Hontiveros and Padilla, JJ ., concur.
Paras, J ., concurs in the result.
||| (People v. Adriano, G.R. No. L-477, [June 30, 1947], 78 PHIL 561-570)
The United States Supreme Court saw the obstacles laced in the path of the prosecution by a literal
interpretation of the rule of two witnesses but said that the founders of the American government fully realized
392
EN BANC
[G.R. No. L-322. July 28, 1947.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO MANAYAO, ET AL., defendants.
PEDRO MANAYAO, appellant.
5. ID.; ID.; JUSTIFYING CIRCUMSTANCES; OBEDIENCE TO SUPERIOR ORDERS DOES NOT

INCLUDE ORDERS FROM A FOREIGN SOVEREIGN. Paragraphs 5 and 6 of article 11 of the Revised
Pen Code cannot be construed as sanctioning as legal acts done in compliance with duties to or orders from a
foreign sovereign any more than obedience to an illegal order.
J. Antonio Araneta for appellant.

First Assistant Solicitor General Jose B. L. Reyes and Solicitor Ramon L. Avancena for appellee.
DECISION
SYLLABUS
HILADO, J p:
1. CRIMINAL LAW; TREASON; "MAKAPILI" NOT PART OF JAPANESE ARMY. The Makapili,
although organized to render military aid to the Japanese Army in the Philippines during the late was as not a
part of said army. It was an organization of Filipino traitors, pure and simple.
Appellant Pedro Manayao and Filomeno Flores an Raymundo Flores were charged with the high crime o
treason with multiple murder in the People's Court. The Floreses not having been apprehended, only Manayao
was tried. Convicted of the offense charged against him wit the aggravating circumstances of (1) the aid of arm
men and (2) the employment or presence of a band i the commission of the crime, he was sentenced to death to
pay a fine of P20,000, an indemnity of P2,000 to the heirs of each of the persons named in the third paragraph
of the decision, and the costs. He has appealed from that decision to this Court.
2. ID; ID.; DEFENSE OF STATE, CONSTITUTIONAL DUTY OF CITIZEN; CITIZENSHIP CANNOT BE

CAST OFF IN TIME OF WAR. The constitutional duty of the citizen to defend the State cannot be cast off
when his country is at war, by the simple expedient of subscribing to an oath of allegiance to support the
constitution or laws of a foreign country, and an enemy country at that, or by accepting a commission in the
military, naval or air service of such country, or by deserting from the Philippine Army, Navy, or Air Corps.
3. ID.; ID.; ID.; ID.; CASE AT BAR. It would shock the conscience of any enlightened citizenry to say that
the appellant, by the very fact of committing the treasonous acts charged against him, the doing of which under
the circumstances of record he does not deny, divested himself of his Philippine citizenship and thereby placed
himself beyond the arm of the treason law. For if this were no, his very crime would be the shield that would
protect him from punishment.
4. ID.; ID.; AGGRAVATING CIRCUMSTANCES; BAND INCLUDES AID OF ARMED MEN. In

appreciating the existence of a band the . employment of more than three armed men is automatically included,
there being only the aggravating circumstance of band to be considered.
On or about the 27th of January, 1944, the guerillas raided the Japanese in sitio Pulong Tindahan, municipality
of Angat, Province of Bulacan. In reprisal, Japanese soldiers and a number of Filipinos affiliated with the
Makapili, among them the instant appellant, conceived the diabolical idea of killing the residents of barrio
Banaban the same municipality (Exhibits A, C, and C-1). Pursuant to this plan, said Japanese soldiers and their
Filipino companions, armed with rifles and bayonets, gathered residents of Banaban behind the barrio chapel on
January 29, 1945. Numbering about sixty or seventy, the residents thus assembled included men, women and
children mostly women (Exhibits A, C, and C-1; pp. 3-16, 29, 30, 65, 102, t. s. n.).
The children were placed in a separate group from the men and women the prosecution star witnesses, Maria
Paulino and Clarita Perez, were among the children (pp. , 40, t. s. n.). Presently, the Japanese and their Filipino
comrades set the surrounding houses on fire (pp. 14, 48, 70, 71, 103, t. s. n.), and proceeded to butcher all the
persons assembled, excepting the small children, thus killing, among others, those known by the following
393
names: Patricia, Dodi, Banda, Tana, Uyang, Mina, Marta, Sana, Eufemia, Doroteo, Andres, Perly, Tisiang,
Urado, Pisan, Dorang, Felisa, and Eulalia (pp. 8, 10, 13, 14, 31, 32, 47, 48, 61, 62, 63, t. s. n.).
Appellant alone killed about six women, two of whom were Patricia and Dodi whom he bayoneted to death in
the presence of their daughters, Maria Paulino and Clarita Perez, respectively (pp. 8, 10, 13, 31, 32, 35, 47, 48,
t. s. n.). Patricia and Dodi pleaded with appellant for mercy, he being their relative, but he gave the callous
answer that no mercy would be given them because they were wives of guerrillas (pp. 10, 42, 43, 49, t. s. n.).
Appellant would also have killed the small children including Clarita Perez and Maria Paulino if he had been
allowed to have his way. For when all but the small ones had been butchered, he proposed to kill them too, but
the Japanese soldiers interceded, saying that the children knew nothing of the matter (pp. 15, 49, 51, 66, 67, t. s.
n.). Appellant insisted in his proposal, arguing that the children would be wives of guerrillas later when they
grew up, but the Japanese decided to spare them (p. 22, t. s. n.).
The foregoing facts have been clearly established by the testimony of eye-witnesses Clarita Paulino, Maria
Perez, and Policarpio Tigas to the ruthless massacre of Banaban. There is a complete absence of evidence
tending to show motive on the part of these witnesses for falsely testifying against appellant such a motive is
not even insinuated by the defendant. Indeed, appellant's counsel frankly states (p. 3, brief) that he "does not
dispute the findings of fact of the People's Court." Speaking of the testimony of Clarita and Maria, both aged ten
years, the People's Court, who heard, observed and saw them testify, had the following to say:
"The testimony of the last two in particular is entitled to very great weight. They are simple barrio girls, only ten
years old, whose minds have not yet been tainted by feelings of hatred or revenge or by any desire to be
spectacular or to exaggerate. They were straight-forward and frank in their testimony and did not show any
intention to appeal to the sentiments of the court. They could not have been mistaken as to the presence and
identity of the accused for they know him so well that they referred to him by his pet name of 'Indong Pintor' or
Pedro, the painter. They could not have erred in the narration of the salient phases of the tragic events of
January 29, 1945, in Banaban, for they were forced eye-witnesses to and were involved in the whole tragedy,
the burning of the houses and the massacre committed by the accused and his Japanese masters took place in
broad daylight and were not consummated in a fleeting moment but during a time sufficient for even girls of
tender age to retain a trustworthy mental picture of the unusual event they could not help but witness."
Not only this, but the testimony of Clarita Perez and Maria Paulino is so clear, positive and convincing that it
would be sufficient for conviction without any further corroboration. Yet, there is ample corroborative proof.
Thus, Tomas M. Pablo declared that he had seen the corpses of the massacred residents of Banaban shortly after
the happening of the heinous crime (p. 136, t. s. n.). And appellant himself admitted his participation in the
massacre in two sworn statements one made on August 28, 1945, before Lt. Jesus Cacahit, Detachment
Commander of the Angat 23d MP Command (Exhibit A; pp. 75-77, t. s. n.) and another made on September 5,
1945 before Feliciano F. Torres, Assistant Provincial Fiscal of Bulacan (Exhibits C, C-1; pp. 150-159, t. s. n.).
In No. 1 of his assignment of errors, appellant's counsel contends that appellant was a member of the Armed
Forces of Japan, was subject to military law, and not subject to the jurisdiction of the People's Court; and in No.
2 he advances the theory that appellant had lost his Philippine citizenship and was therefore not amenable to the
Philippine law of treason. We cannot uphold either contention. We are of the considered opinion that the
Makapili, although organized to render military aid to the Japanese Army in the Philippines during the late war,
was not a part of said army. It was an organization of Filipino traitors, pure and simple. As to loss of Philippine
citizenship by appellant, counsel's theory is absolutely untenable. He invokes in its support paragraphs 3, 4, and
6 of section 1 of Commonwealth Act No. 63, providing:
" . . . A Filipino citizen may lose his citizenship in any of the following ways and/or events:
xxx xxx xxx
"(3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon
attaining twenty-one years of age or more;
"(4) By accepting commission in the military, naval or air service of a foreign country;
xxx xxx xxx
394
"(6) By having been declared, by competent authority, a deserter of the Philippine Army, Navy, or Air Corps in
time of war, unless subsequently a plenary pardon or amnesty has been granted."
There is no evidence that appellant has subscribed to an oath of allegiance to support the constitution or laws of
Japan. His counsel cites (Brief, 4) the fact that in Exhibit A "he subscribed an oath before he was admitted into
the Makapili association, 'the aim of which was to help Japan in its fight against the Americans and her allies.' "
And counsel contends from this that the oath was in fact one of allegiance to support the constitution and laws
of Japan. We cannot uphold such a far-fetched deduction. The members of the Makapili could have sworn to
help Japan in the war without necessarily swearing to support her constitution and laws. The famed "Flying
Tiger" who so bravely and resolutely aided China in her war with Japan certainly did not need to swear to
support the Chinese constitution and laws, even if they had to subscribe to an oath, upon entering the
organization, to help China fight Japan. During the first World War the "National Volunteers" were organized in
the Philippines, pledged to go to Europe and fight on the side of the Allies, particularly of the United States. In
order to carry out that mission although the war ended before this could be done they surely did not have to
take an oath to support the constitution or laws of the United States or any of its allies. We do not multiply these
examples, for they illustrate a proposition which seems self-evident.
Neither is there any showing of the acceptance by appellant of a commission "in the military, naval, or air
service" of Japan.
This constitutional provision covers both time of peace and time of war, but it is brought more immediately and
peremptorily into play when the country is involved in war. During such a period of stress, under a constitution
enshrining such tenets, the citizen cannot be considered free to cast off his loyalty and obligations toward the
Fatherland. And it cannot be supposed, without reflecting on the patriotism and intelligence of the Legislature
that in promulgating Commonwealth Act No. 63, under the aegis of our Constitution, it intended (but did not
declare) that the duties of the citizen solemnly proclaimed in the above-quoted constitutional precept could be
effectively cast off by him even when his country is at war, by the simple expedient of subscribing to an oath of
allegiance to support the constitution or laws of a foreign country, and an enemy country at that, or by accepting
a commission in the military, naval or air service of such country, or by deserting from the Philippine Army,
Navy, or Air Corps.
It would shock the conscience of any enlightened citizen to say that this appellant, by the very fact of
committing the treasonous acts charged against him, the doing of which under the circumstances of record he
does not deny, divested himself of his Philippine citizenship and thereby placed himself beyond the arm of our
treason law. For if this were so, his very crime would be the shield that would protect him from punishment.
"But the laws do not admit that the bare commission of a crime amounts of itself to a divestment of the
character of citizen, and withdraws the criminal from their coercion. They would never prescribe an illegal act
among the legal modes by which a citizen might disfranchise himself; nor render treason, for instance, innocent,
by giving it the force of a dissolution of the obligation of the criminal to his country." (Moore, International
Law Digest, Vol III, p. 731.)
Much less is there a scintilla of evidence that appellant had ever been declared a deserter in the Philippine
Army, Navy or Air Corps nor even that he was a member of said Army, Navy, or Air Corps.
Further, appellant's contention is repugnant to the most fundamental and elementary principles governing the
duties of a citizen toward his country under our Constitution. Article II, section 2, of said Constitution ordains:
"SEC. 2. The defense of the State is a prime duty of government, in the fulfillment of this duty all citizens may
be required by to render personal, military or civil service." (Emphasis supplied.)
"696. No person, even when he has renounced or incurred the loss of his nationality, shall take up arms against
his native country; he shall be held guilty of a felony and treason, if he does not strictly observe this duty. "
(Fiore's International Law Codified, translation from Fifth Italian Edition by Borchard.)
As to the third assignment of error, the Solicitor General agrees with counsel that it is improper to separately
take into account against appellant the aggravating circumstances of (1) the aid of armed men and (2) the
employment of a band in appraising the gravity of the crime. We likewise are of the same opinion, considering
that under paragraph 6 of article 14 of the Revised Penal Code providing that "whenever more than three armed
malefactors shall have acted together in the commission of an offense it shall be deemed to have been
committed by a band," the employment of more than three armed men is an essential element of and inherent in
395
a band. So that in appreciating the existence of a band the employment of more than three armed men is
automatically included, there being only the aggravating circumstance of band to be considered.
As to appellant's fourth assignment of error, the contention is clearly unacceptable that appellant acted in
obedience to an order issued by a superior and is therefore exempt from criminal liability, because he allegedly
acted in the fulfillment of a duty incidental to his service for Japan as a member of the Makapili. It is obvious
that paragraphs 5 and 6 of article 11 of our Revised Penal Code cannot be construed as sanctioning as legal acts
done in compliance with duties to or orders from a foreign sovereign, any more than obedience to an illegal
order. The construction contended for by appellant could entail in its potentialities even the destruction of this
Republic.
The contention that as a member of the Makapili appellant had to obey his Japanese masters underpain of severe
penalty, and that therefore his acts should be considered as committed under the impulse of an irresistible force
or uncontrollable fear of an equal or greater injury, is no less repulsive. Appellant voluntarily joined the
Makapili with full knowledge of its avowed purpose of rendering military aid to Japan. He knew the
consequences to be expected if the alleged irresistible force or uncontrollable fear subsequently arose, he
brought them about himself freely and voluntarily. But this is not all; the truth of the matter is, as the Solicitor
General well remarks, that "the appellant actually acted with gusto during the butchers of Banaban." He was on
that occasion even bent on more cruelty than the very ruthless Japanese themselves as regards the little children.
And his Japanese matters so fate willed it were the very ones who saved the little girls, Clarita Perez and
Maria Paulino, who were declined to become the star witnesses against him on the day of reckoning.
Conformably to the recommendation of the Solicitor General, we find appellant guilty of the crime of treason
with multiple murder committed with the attendance of one aggravating circumstance, that of "armed band,"
thus discarding the first aggravating circumstance considered by the trial court. A majority of the Court voted to
affirm the judgment appealed from, imposing the death penalty, convicting defendant and appellant to pay a fine
of P20,000, an indemnity of P2,000 to the heirs of each of victims named in the third paragraph of the lower
courts decision, and the costs. But due to the dissent of Mr. Justice Perfecto from the imposition of the death
penalty, in accordance with the applicable legal provisions we modify the judgment appealed from as regards
the punishment to be inflicted, and sentence defendant and appellant Pedro Manayao to the penalty of reclusion
perpetua, with the accessories of article 41 of the Revised Penal Code, to pay a fine of P20,000, an indemnity of
P2,000 to the heirs of each of the victims named in the third paragraph of the lower court's decision, and the
costs. So ordered.
Moran, C.J., Feria, Pablo, Bengzon, Briones, Hontiveros, Padilla and Tuason, JJ., concur.
||| (People v. Manayao, G.R. No. L-322, [July 28, 1947], 78 PHIL 721-732)
EN BANC
[G.R. No. 81567. July 9, 1990.]
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL
and RENATO VILLANUEVA. MANOLITA O. UMIL, and NICANOR P. DURAL, FELICITAS V. SESE,
petitioners, vs. FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO,
BRIG. GEN. ALEXANDER AGUIRRE, respondents.
[G.R. Nos. 84581-82. July 9, 1990.]
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs. GEN. RENATO DE VILLA and GEN.
RAMON MONTANO, respondents.
[G.R. Nos. 84583-84. July 9, 1990.]
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and
RAMON CASIPLE. DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs. HON. FIDEL V.
RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT. COL. REX D. PIAD, T/ SGT.
CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center,
Camp Crame, Quezon City, respondents.
[G.R. No. 83162. July 9, 1990.]
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY
RIVERA. VIRGILIO A. OCAYA, petitioner, vs. BRIG. GEN. ALEXANDER AGUIRRE, COL., HERCULES
CATALUNA, COL. NESTOR MARIANO, respondents.
[G.R. No. 85727. July 9, 1990.]
396
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS ESPIRITU, petitioner,
vs. BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents.
[G.R. No. 86332. July 9, 1990.]
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO, ALFREDO
NAZARENO, petitioner, vs. THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION,
Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI
SOLEDAD, and P/SGT. MAURO AROJADO, respondents.
The petitioners counter that their detention is unlawful as their arrests were made without warrant and, that no
preliminary investigation was first conducted, so that the informations filed against them are null and void.
The Court has carefully reviewed the contentions of the parties in their respective pleadings, and it finds that the
persons detained have not been illegally arrested nor arbitrarily deprived of their constitutional right to liberty,
and that the circumstances attending these cases do not warrant their release on habeas corpus.
Efren H. Mercado for petitioners in G.R. No. 81567.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.
Ramon S. Esguerra Barbara Anne C. Migallos and Agripino G. Morga for petitioners in G.R. Nos. 84583-84.
Efren H. Mercado for petitioner in G.R. No. 83162.
The arrest of a person without a warrant of arrest or previous complaint is recognized in law. The occasions or
instances when such an arrest may be effected are clearly spelled out in Section 5, Rule 113 of the Rules of
Court, as amended, which provides:
Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Associates for petitioner in G.R. No. 85727.
Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332.
The Solicitor General for the respondents.
DECISION
"Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit en offense;
PER CURIAM p:
These are eight (8) petitions for habeas corpus filed before the Court, which have been consolidated because of
the similarity of issues raised, praying for the issuance of the writ of habeas corpus, ordering the respective
respondents to produce the bodies of the persons named therein and to explain why they should not be set at
liberty without further delay.
In their respective Returns, the respondents uniformly assert that the privilege of the writ of habeas corpus is not
available to the petitioners as they have been legally arrested and are detained by virtue of valid informations
filed in court against them. LexLib
(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he
is serving final judgment or temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
397
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7."
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113 of the Rules of Court,
as amended, is justified when the person arrested is caught in flagranti delicto, viz., in the act of committing an
offense; or when an offense has just been committed and the person making the arrest has personal knowledge
of the facts indicating that the person arrested has committed it. The rationale behind lawful arrests, without
warrant, was stated by this Court in the case of People vs. Kagui Malasugui 1 thus:
"To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime
without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert,
and the most depraved of criminals, facilitating their escape in many instances."
The record of the instant cases would show that the persons in whose behalf these petitions for habeas corpus
have been filed, had freshly committed or were actually committing an offense, when apprehended, so that their
arrests without a warrant were clearly justified, and that they are, further, detained by virtue of valid
informations filed against them in court.
A brief narration of the facts and events surrounding each of the eight (8) petitions is in order.
In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the Regional Intelligence
Operations Unit of the Capital Command (RIOU-CAPCOM) received confidential information about a member
of the NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St. Agnes Hospital in
Roosevelt Avenue, Quezon City. Upon verification, it was found that the wounded person, who was listed in the
hospital records as Ronnie Javelon, is actually Rolando Dural, a member of the NPA liquidation squad,
responsible for the killing of two (2) CAPCOM soldiers the day before, or on 31 January 1988, in Macanining
Street, Bagong Barrio, Caloocan City. In view of this verification, Rolando Dural was transferred to the
Regional Medical Services of the CAPCOM, for security reasons. While confined thereat, or on 4 February
1988, Rolando Dural was positively identified by eyewitnesses as the gunman who went on top of the hood of
the CAPCOM mobile patrol car, and fired at the two (2) CAPCOM soldiers seated inside the car identified as
T/Sgt. Carlos Pabon and CIC Renato Manligot.
As a consequence of this positive identification, Rolando Dural was referred to the Caloocan City Fiscal who
conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan City an information
charging Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with Assault Upon Agents of
Persons in Authority." The case was docketed therein as Criminal Case No. C-30112 and no bail was
recommended. On 15 February 1988, the information was amended to include, as defendant, Bernardo Itucal,
Jr. who, at the filing of the original information, was still unidentified. cdphil
Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on behalf of Roberto
Umil, Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas corpus on 9 February 1988
and the respondents filed a Return of the Writ on 12 February 1988. Thereafter, the parties were heard on 15
February 1988.
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before the Regional Trial
Court of Pasay City where charges for violation of the Anti-Subversion Act had been filed against them, and
they were accordingly released. The petition for habeas corpus, insofar as Umil and Villanueva are concerned, is
now moot and academic and is accordingly dismissed, since the writ of habeas corpus does not lie in favor of an
accused in a criminal case who has been released on bail. 2
As to Rolando Dural,it clearly appears that he was not arrested while in the act of shooting the two (2)
CAPCOM soldiers aforementioned. Nor was he arrested just after the commission of the said offense for his
arrest came a day after the said shooting incident. Seemingly, his arrest without warrant is unjustified.
However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an outlawed
subversive organization. Subversion being a continuing offense, the arrest of Rolando Dural without warrant is
justified as it can be said that he was committing an offense when arrested. The crimes of rebellion, subversion,
conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in
398
connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. As
stated by the Court in an earlier case:
"From the facts as above-narrated, the claim of the petitioners that they were initially arrested illegally is,
therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy or
proposal to commit such crimes, and other crimes and offenses committed in the furtherance, on the occasion
thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the
nature of continuing offenses which set them apart from the common offenses, aside from their essentially
involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was
well within the bounds of the law and existing jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing nonviolent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed
conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory
offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires
the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of
arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal
impediment to arresting or capturing persons committing overt acts of violence against government forces, or
any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus
impelled by the exigencies of the situation that involves the very survival of society and its government and
duly constituted authorities. If killing and other acts of violence against the rebels find justification in the
exigencies of armed hostilities which is of the essence of waging a rebellion or insurrection, most assuredly so
in case of invasion, merely seizing their persons and detaining them while any of these contingencies continue
cannot be less justified. . . ." 3
"In this case, whatever may be said about the manner of his arrest, the fact remains that the defendant was
actually in court in the custody of the law on March 29, when a complaint sufficient in form and substance was
read to him. To this he pleaded not guilty. The trial followed, in which, and in the judgment of guilty
pronounced by the court, we find no error. Whether, if there were irregularities in bringing him personally
before the court, he could have been released on a writ of habeas corpus or now has a civil action for damages
against the person who arrested him we need not inquire. It is enough to say that such irregularities are not
sufficient to set aside a valid judgment rendered upon a sufficient complaint and after a trial free from error."
II
In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and Wilfredo Buenaobra, without
warrant, is also justified. When apprehended at the house of Renato Constantino in Marikina Heights, Marikina,
Metro Manila, Wilfredo Buenaobra admitted that he was an NPA courier and he had with him letters to Renato
Constantino and other members of the rebel group. Amelia Roque, upon the other hand, was a member of the
National United Front Commission, in charge of finance, and admitted ownership of subversive documents
found in the house of her sister in Caloocan City. She was also in possession of ammunition and a fragmentation
grenade for which she had no permit or authority to possess. LLpr
The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos y Ibanes, a member of the
NPA, who had surrendered to the military authorities, told military agents about the operations of the
Communist Party of the Philippines (CPP) and the New Peoples Army (NPA) in Metro Manila. He identified
some of his former comrades as "Ka Mong", a staff member of the Communications and Transportation Bureau;
"Ka Nelia" a staff member in charge of finance; "Ka Miller", an NPA courier from Sorsogon and Lopez,
Quezon; "Ka Ted", and "Ka Totoy". He also pointed to a certain house occupied by Renato Constantino located
in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila, which is used as a safehouse
of the National United Front Commission (NUFC) of the CPP-NPA.
The record, moreover, shows that the criminal case filed against Rolando Dural and Bernardo Itucal, Jr. for
"Double Murder, etc." was tried in the court below and at the conclusion thereof, or on 17 August 1988,
Rolando Dural and Bernardo Itucal, Jr. were found guilty of the charge and sentenced accordingly. Rolando
Dural is now serving the sentence imposed upon him by the trial court. Thus, the writ of habeas corpus is no
longer available to him. For, as held in the early case of U.S. vs. Wilson: 4
399
In view of these revelations, the Constantino house was placed under military surveillance and on 12 August
1988, pursuant to a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, a
search of the house was conducted at about 5:00 o'clock in the afternoon, by a combined team of the Criminal
Investigation Service, National Capital District (CIS-NCD) and the Constabulary Security Group (CSG). In the
course of the search, the following articles were found and taken under proper receipt:
a) One (1 ) Colt M1 6A1 long rifle with defaced serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK 8 SN: 260577 & 2605778;
c) Two (2) fragmentation hand grenades;
j) Voluminous Subversive documents.
When confronted, Renato Constantino could not produce any permit or authority to possess the firearms,
ammunition, radio and other communications equipment. Hence, he was brought to the CIS Headquarters for
investigation. When questioned, he refused to give a written statement, although he admitted that he was a staff
member of the executive committee of the NUFC and a ranking member of the International Department of the
Communist Party of the Philippines (CPP).
At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo Buenaobra arrived at the
house of Renato Constantino in the Villaluz Compound. When accosted, he readily admitted to the military
agents that he is a regular member of the CPP/NPA and that he went to the place to deliver letters to "Ka
Mong", referring to Renato Constantino, and other members of the rebel group. On further questioning, he also
admitted that he is known as "Ka Miller" and that he was from Barangay San Pedro, Lopez, Quezon. Among the
items taken from him were the following:
d) Fifty-six (56) live ammunition for Cal. 5.56mm;

(1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated August 11, 1988;
e) Five (5) live ammunition for Cal. .380;
(2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated August 11, 1988;
f) One (1) ICOM VHF FM Radio Transceiver SN: 14903
(3) Handwritten letter addressed to "Suzie" from "Vic", dated August 11, 1988.
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);
i) One (1 ) Speaker with cord ALEXAR;
Also found in Buenaobra's possession was a piece of paper containing a written but jumbled telephone number
of Florida M. Roque, sister of Amelia Roque alias "Ka Nelia", at 69 Geronimo St., Caloocan City. Acting on the
lead provided as to the whereabouts of Amelia Roque, the military agents went to the given address the next day
(13 August 1988). They arrived at the place at about 11:00 o'clock in the morning. After identifying themselves
as military agents and after seeking permission to search the place, which was granted, the military agents
conducted a search in the presence of the occupants of the house and the barangay captain of the place, one
Jesus D. Olba.
400
The military agents found the place to be another safehouse of the NUFC/CPP. They found ledgers, journals,
vouchers, bank deposit books, folders, computer diskettes, and subversive documents as well as live
ammunition for a .38 SPL Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of live
ammunition for an M16 Rifle, and a fragmentation grenade. As a result, Amelia Roque and the other occupants
of the house were brought to the PC-CIS Headquarters at Camp Crame, Quezon City, for investigation. Amelia
Roque admitted to the investigators that the voluminous documents belonged to her and that the other occupants
of the house had no knowledge of them. As a result, the said other occupants of the house were released from
custody.
On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest after which an
information charging her with violation of PD 1866 was filed with the Regional Trial Court of Caloocan City.
The case is docketed therein as Criminal Case No. C-1196. Another information for violation of the AntiSubversion Act was filed against Amelia Roque before the Metropolitan Trial Court of Caloocan City, which is
docketed therein as Criminal Case No. C-150458.
III
In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo Anonuevo and Ramon Casiple, without
warrant, is also justified under the rules. Both are admittedly members of the standing committee of the NUFC
and, when apprehended in the house of Renato Constantino, they had a bag containing subversive materials, and
both carried firearms and ammunition for which they had no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the evening of 13 August 1988, Domingo
T. Anonuevo and Ramon Casiple arrived at the house of Renato Constantino at Marikina Heights, Marikina,
which was still under surveillance by military agents. The military agents noticed bulging objects on their waist
lines. When frisked, the agents found them to be loaded guns. Anonuevo and Casiple were asked to show their
permit or license to possess or carry firearms and ammunition, but they could not produce any. Hence, they
were brought to PC Headquarters for investigation. Found in their possession were the following articles:
An information for violation of the Anti-Subversion Act was filed against Wilfredo Buenaobra before the
Metropolitan Trial Court of Marikina, Metro Manila. The case is docketed therein as Criminal Case No. 23715.
Bail was set at P4,000.00.
a) Voluminous subversive documents
On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of Amelia Roque and
Wilfredo Buenaobra. At the hearing of the case, however, Wilfredo Buenaobra manifested his desire to stay in
the PC-INP Stockade at Camp Crame, Quezon City. Accordingly, the petition for habeas corpus filed on his
behalf is now moot and academic. Only the petition of Amelia Roque remains for resolution. LLjur
The contention of respondents that petitioners Roque and Buenaobra are officers and or members of the
National United Front Commission (NUFC) of the CPP was not controverted or traversed by said petitioners.
The contention must be deemed admitted. 5 As officers and/ or members of the NUFC-CPP, their arrest, without
warrant, was justified for the same reasons earlier stated vis-a-vis Rolando Dural. The arrest without warrant of
Roque was additionally justified as she was, at the time of apprehension, in possession of ammunitions without
license to possess them.
b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1) magazine for Cal. 7.65 containing ten (10)
live ammunition of same caliber;
c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with one (1) magazine containing five (5)
live ammunition of same caliber.
At the PC Stockade, Domingo Anonuevo was identified as "KaTed", and Ramon Casiple as "Ka Totoy" of the
CPP, by their comrades who had previously surrendered to the military.
401
On 15 August 1988, the record of the investigation and other documentary evidence were forwarded to the
Provincial Fiscal at Pasig, Metro Manila, who conducted an inquest, after which Domingo Anonuevo and
Ramon Casiple were charged with violation of Presidential Decree No. 1866 before the Regional Trial Court of
Pasig, Metro Manila. The cases are docketed therein as Criminal Cases Nos. 74386 and 74387, respectively. No
bail was recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of Domingo Anonuevo and
Ramon Casiple, alleging that the said Anonuevo and Casiple were unlawfully arrested without a warrant and
that the informations filed against them are null and void for having been filed without prior hearing and
preliminary investigation. On 30 August 1988, the Court issued the writ of habeas corpus, and after the
respondents had filed a Return of the Writ, the parties were heard.
The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested because there was no
previous warrant of arrest, is without merit. The record shows that Domingo Anonuevo and Ramon Casiple
were carrying unlicensed firearms and ammunition in their person when they were apprehended.
There is also no merit in the contention that the informations filed against them are null and void for want of a
preliminary investigation. The filing of an information, without a preliminary investigation having been first
conducted, is sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as amended, reads:
"Sec. 7. When accused lawfully arrested without a warrant. When a person is lawfully arrested without a
warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the
offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the
basis of the affidavit of the offended party or arresting officer or person.
However, before the filing of such complaint or information, the person arrested may ask for a preliminary
investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of nonavailability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail
as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its
inception.
If the case has been filed in court without a preliminary investigation having been first conducted, the accused
may within five (5) days from the time he learns of the filing of the information, ask for a preliminary
investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule."
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended. In the informations filed against them, the prosecutor made
identical certifications, as follows:
"This is to certify that the accused has been charged in accordance with Sec. 7, Rule 112 of the 1985 Rules on
Criminal Procedure, that no preliminary investigation was conducted because the accused has not made and
signed a waiver of the provisions of Art. 125 of the Revised Penal Code, as amended; that based on the evidence
presented, there is reasonable ground to believe that the crime has been committed, and that the accused is
probably guilty thereof."
Nor did petitioners ask for a preliminary investigation after the informations had been filed against them in
court. Petitioners cannot now claim that they have been deprived of their constitutional right to due process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is justified under the Rules,
since she had with her an unlicensed ammunition when she was arrested. The record of this case shows that on
12 May 1988, agents of the PC Intelligence and Investigation of the Rizal PC-INP Command, armed with a
search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, Metro Manila, conducted
a search of a house located at Block 19, Phase II, Marikina Green Heights, Marikina, Metro Manila, believed to
be occupied by Benito Tiamson, head of the CPP-NPA. In the course of the search, Vicky Ocaya armed in a car
driven by Danny Rivera. Subversive documents and several rounds of ammunition for a .45 cal. pistol were
found in the car of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought to the PC
Headquarters for investigation. When Vicky Ocaya could not produce any permit or authorization to possess the
402
ammunition, an information charging her with violation of PD 1866 was filed with the Regional Trial Court of
Pasig, Metro Manila. The case is docketed therein as Criminal Case No. 73447. Danny Rivera, on the other
hand, was released from custody.
On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of Vicky Ocaya and Danny
Rivera. It was alleged therein that Vicky Ocaya was illegally arrested and detained, and denied the right to a
preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her arrest without a warrant
is justified. No preliminary investigation was conducted because she was arrested without a warrant and she
refused to waive the provisions of Article 125 of the Revised Penal Code, pursuant to Sec. 7, Rule 112 of the
Rules of Court, as amended.
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia Roque claim that the firearms,
ammunition and subversive documents alleged to have been found in their possession when they were arrested,
did not belong to them, but were "planted" by the military agents to justify their illegal arrest.
The petitioners, however, have not introduced any evidence to support their aforesaid claim. On the other hand,
no evil motive or ill-will on the part of the arresting officers that would cause the said arresting officers in these
cases to accuse the petitioners falsely, has been shown. Besides, the arresting officers in these cases do not
appear to be seekers of glory and bounty hunters for, as counsel for the petitioners Anonuevo and Casiple say,
"there is absolutely nothing in the evidence submitted during the inquest that petitioners are on the 'AFP Order
of Battle with a reward of P15,000.00 on each on their heads.' " 6 On the other hand, as pointed out by the
Solicitor General, the arrest of the petitioners is not a product of a witch hunt or a fishing expedition, but the
result of an in-depth surveillance of NPA safehouses pointed to by no less than former comrades of the
petitioners in the rebel movement. LexLib
". . . To reiterate, the focal point in the case of petitioners Roque, Buenaobra, Anonuevo and Casiple, was the
lawful search and seizure conducted by the military at the residence of Renato Constantino at Villaluz
Compound, Molave St., Marikina Heights, Marikina, Metro Manila. The raid at Constantino's residence, was
not a witch hunting or fishing expedition on the part of the military. It was a result of an in-depth military
surveillance coupled with the leads provided by former members of the underground subversive organizations.
That raid produced positive results. To date, nobody has disputed the fact that the residence of Constantino
when raided yielded communication equipment, firearms and ammunitions, as well as subversive documents.
The military agents working on the information provided by Constantino that other members of his group were
coming to his place, reasonably conducted a 'stake-out' operation whereby some members of the raiding team
were left behind the place. True enough, barely two hours after the raid and Constantino's arrest, petitioner
Buenaobra arrived at Constantino's residence. He acted suspiciously and when frisked and searched by the
military authorities, found in his person were letters. They are no ordinary letters, as even a cursory reading
would show. Not only that, Buenaobra admitted that he is a NPA courier and was there to deliver the letters to
Constantino.
Subsequently, less than twenty four hours after the arrest of Constantino and Buenaobra, petitioners Anonuevo
and Casiple arrived at Constantino's place. Would it be unreasonable for the military agents to believe that
petitioners Anonuevo and Casiple are among those expected to visit Constantino's residence considering that
Constantino's information was true, in that Buenaobra did come to that place? Was it unreasonable under the
circumstances, on the part of the military agents, not to frisk and search anyone who should visit the residence
of Constantino, such as petitioners Anonuevo and Casiple? Must this Honorable Court yield to Anonuevo and
Casiple's flimsy and bare assertion that they went to visit Constantino, who was to leave for Saudi Arabia on the
day they were arrested thereat?.
As to petitioner Roque, was it unreasonable for the military authorities to effect her arrest without warrant
considering that it was Buenaobra who provided the leads on her identity? It cannot be denied that Buenaobra
had connection with Roque. Because the former has the phone number of the latter. Why the necessity of
jumbling Roque's telephone number as written on a piece of paper taken from Buenaobra's possession?
Petitioners Roque and Buenaobra have not offered any plausible reason so far.
The Solicitor General, in his Consolidated Memorandum, aptly observes:
403
In all the above incidents, respondents maintain that they acted reasonably, under the time, place and
circumstances of the events in question, especially considering that at the time of petitioners' arrest,
incriminatory evidence, i.e, firearms, ammunitions and/or subversive documents were found in their possession.
Petitioners, when arrested, were neither taking their snacks nor innocently visiting a camp, but were arrested in
such time, place and circumstances, from which one can reasonably conclude that they were up to a sinister
plot, involving utmost secrecy and comprehensive conspiracy.".
VI
In G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the petitioner Deogracias Espiritu, who is
detained by virtue of an Information for Violation of Article 142 of the Revised Penal Code (Inciting to
Sedition) filed with the Regional Trial Court of Manila, is similarly not warranted.
The record of the case shows that the said petitioner is the General Secretary of the Pinagkaisahang Samahan ng
Tsuper at Operators Nationwide (PISTON), an association of drivers and operators of public service vehicles in
the Philippines, organized for their mutual aid and protection. cdll
Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while he was sleeping in his
home located at 363 Valencia St., Sta. Mesa, Manila, he was awakened by his sister Maria Paz Lalic who told
him that a group of persons wanted to hire his jeepney. When he went down to talk to them, he was immediately
put under arrest. When he asked for the warrant of arrest arrest, the men, headed by Col. Ricardo Reyes, bodily
lifted him and placed him in their owner-type jeepney. He demanded that his sister, Maria Paz Lalic, be allowed
to accompany him, but the men did not accede to his request and hurriedly sped away.
He was brought to Police Station No. 8 of the Western Police District at Blumentritt, Manila where he was
interrogated and detained. Then, at about 9:00 o'clock of the same morning, he was brought before the
respondent Lim and, there and then, the said respondent ordered his arrest and detention. He was thereafter
brought to the General Assignment Section, Investigation Division of the Western Police District under Police
Capt. Cresenciano A. Cabasal where he was detained, restrained and deprived of his liberty. 7
The respondents claim however, that the detention of the petitioner is justified in view of the Information filed
against him before the Regional Trial Court of Manila, docketed therein as Criminal Case No. 88-683-85,
charging him with violation of Art. 142 of the Revised Penal Code (Inciting to Sedition).
The respondents also claim that the petitioner was lawfully arrested without a judicial warrant of arrest since
petitioner when arrested had in fact just committed an offense in that in the afternoon of 22 November 1988,
during a press conference at the National Press Club.
"Deogracias Espiritu through tri-media was heard urging all drivers and operators to go on nationwide strike on
November 23, 1988, to force the government to give in to their demands to lower the prices of spare parts,
commodities, water and the immediate release from detention of the president of the PISTON (Pinag-isang
Samahan ng Tsuper Operators Nationwide). Further, we heard Deogracias Espiritu taking the place of PISTON
president Medardo Roda and also announced the formation of the Alliance Drivers Association to go on
nationwide strike on November 23, 1988." 8
Policemen waited for petitioner outside the National Press Club in order to investigate him, but he gave the
lawmen the slip. 9 He was next seen at about 5:00 o'clock that afternoon at a gathering of drivers and
sympathizers at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he was heard to
say:
"Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali sila, at hindi tayo titigil hanggang hindi
binibigay ng gobyerno ni Cory ang gusto nating pagbaba ng halaga ng spare parts, bilihin at ang pagpapalaya sa
ating pinuno na si Ka Roda hanggang sa magkagulo na." 10 (emphasis supplied).
404
The police finally caught up with the petitioner on 23 November 1988. He was invited for questioning and
brought to police headquarters after which an Information for violation of Art. 142 of the Revised Penal Code
was filed against him before the Regional Trial Court of Manila. 11
Since the arrest of the petitioner without a warrant was in accordance with the provisions of Rule 113, Sec. 5(b)
of the Rules of Court and that the petitioner is detained by virtue of a valid information filed with the competent
court, he may not be released on habeas corpus. He may, however be released upon posting bail as
recommended. However, we find the amount of the recommended bail (P60,000.00) excessive and we reduce it
to P10,000.00 only.
On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and
on 13 January 1989, the Court issued the writ of habeas corpus, returnable to the Presiding Judge of the
Regional Trial Court of Bian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and
thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of
Bian, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso
Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional
Trial Court of Makati, Metro Manila which had taken cognizance of said case and had, in fact, denied the
motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against
him).
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the submission of Narciso
Nazareno that he was illegally arrested and is unlawfully detained. The record of this case shows that at about
8:30 o'clock in the morning of 14 December 1988, one Romulo Bunye II was killed by a group of men near the
corner of T. Molina and Mendiola Streets in Alabang, Muntinglupa, Metro Manila. One of the suspects in the
killing was Ramil Regala who was arrested by the police on 28 December 1988. Upon questioning, Regala
pointed to Narciso Nazareno as one of his companions in the killing of the said Romulo Bunye II. In view
thereof, the police officers, without warrant, picked up Narciso Nazareno and brought him to the police
headquarters for questioning. Obviously, the evidence of petitioner's guilt is strong because on 3 January 1989,
an information charging Narciso Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo Bunye
II was filed with the Regional Trial Court of Makati, Metro Manila. The case is docketed therein as Criminal
Case No. 731. cdphil
On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was denied by the trial court in
an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel
Laureaga, was granted by the same trial court.
The findings of the Presiding Judge of the Regional Trial Court of Bian, Laguna are based upon the facts and
the law. Consequently, we will not disturb the same. Evidently, the arrest of Nazareno was effected by the police
without warrant pursuant to Sec. 5 (b), Rule 113, Rules of Court after he was positively implicated by his coaccused Ramil Regala in the killing of Romulo Bunye II; and after investigation by the police authorities. As
held in People vs. Ancheta: 12
"The obligation of an agent of authority to make an arrest by reason of a crime, does not presuppose as a
necessary requisite for the fulfillment thereof, the indubitable existence of a crime. For the detention to be
perfectly legal, it is sufficient that the agent or person in authority making the arrest has reasonably sufficient
grounds to believe the existence of an act having the characteristics of a crime and that the same grounds exist
to believe that the person sought to be detained participated therein."
VIII
It is to be noted that, in all the petitions here considered, criminal charges have been filed in the proper courts
against the petitioners. The rule is, that if a person alleged to be restrained of his liberty is in the custody of an
officer under process issued by a court or judge, and that the court or judge had jurisdiction to issue the process
or make the order, or if such person is charged before any court, the writ of habeas corpus will not be allowed.
Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing that:
405
"Sec. 4. When writ is not allowed or discharge authorized. - If it appears that the person alleged to be restrained
of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment
or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed,
the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor
shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense
in the Philippines or of a person suffering imprisonment under lawful judgment." (emphasis supplied)
At this point, we refer to petitioners' plea for the Court to re-examine and, thereafter, abandon its
pronouncement in Ilagan vs. Enrile, 13 that a writ of habeas corpus is no longer available after an information is
filed against the person detained and a warrant of arrest or an order of commitment is issued by the court where
said information has been filed. 14 The petitioners claim that the said ruling, which was handed down during
the past dictatorial regime to enforce and strengthen said regime, has no place under the present democratic
dispensation and collides with the basic, fundamental, and constitutional rights of the people. Petitioners point
out that the said doctrine makes possible the arrest and detention of innocent persons despite lack of evidence
against them, and, most often, it is only after a petition for habeas corpus is filed before the court that the
military authorities file the criminal information in the courts of law to be able to hide behind the protective
mantle of the said doctrine. This, petitioners assert, stands as an obstacle to the freedom and liberty of the
people and permits lawless and arbitrary State action.
WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail
bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.
SO ORDERED.
Fernan, C.J, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Grio-Aquino,
Medialdea and Regalado, JJ., concur.
||| (Umil v. Ramos, G.R. No. 81567, 84581-82, 84583-84, 83162, 85727, 86332, [July 9, 1990], 265 PHIL 325365)
SECOND DIVISION
[G.R. No. L-68955. September 4, 1986.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN BURGOS y TITO, defendant-appellant.
We find, however, no compelling reason to abandon the said doctrine. It is based upon express provision of the
Rules of Court and the exigencies served by the law. The fears expressed by the petitioners are not really
unremediable. As the Court sees it, re-examination or reappraisal, with a view to its abandonment, of the Ilagan
case doctrine is not the answer. The answer and the better practice would be, not to limit the function of habeas
corpus to a mere inquiry as to whether or not the court which issued the process, judgment or order of
commitment or before whom the detained person is charged, had jurisdiction or not to issue the process,
judgment or order or to take cognizance of the case, but rather, as the Court itself states in Morales, Jr. vs.
Enrile, 15 "in all petitions for habeas corpus the court must inquire into every phase and aspect of petitioner's
detention from the moment petitioner was taken into custody up to the moment the court passes upon the
merits of the petition;" and "only after such a scrutiny can the court satisfy itself that the due process clause of
our Constitution has in fact been satisfied." This is exactly what the Court has done in the petitions at bar. This
is what should henceforth be done in all future cases of habeas corpus. In short, all cases involving deprivation
of individual liberty should be promptly brought to the courts for their immediate scrutiny and disposition. LLpr
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF PERSONS TO BE SECURE AGAINST
UNREASONABLE SEARCHES AND SEIZURE; RATIONALE. Article IV, Section 3 of the Constitution is
a safeguard against wanton and unreasonable invasion of the privacy and liberty of a citizen as to his person,
papers and effects. This Court explained in Villanueva v. Querubin (48 SCRA 345) why this right is so
important: "It is deference to one's personality that lies at the core of this right, but it could be also looked upon
as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined.
(Cf. Hoffa v. United States, 385 US 293 [1966]) What is sought to be guarded is a man's prerogative to choose
who is allowed entry to his residence. In what haven of refuge, his individuality can assert itself not only in the
choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state,
however powerful, does not as such have access except under the circumstances above noted, for in the
traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by
406
government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his
life. (Cf. Schmerber v. California, 384 US 757 [1966], Brenna, J. and Boyd v. United States, 116 US 616, 630
[1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme court
[1966]), could fitly characterize this constitutional right as the embodiment of a 'spiritual concept: the belief that
to value the privacy of home and person and to afford its constitutional protection against the long reach of
government is no less than to value human dignity, and that his privacy must not be disturbed except in case of
overriding social need, and then only under stringent procedural safeguards.'"
2. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; WHEN LAWFUL;

ARRESTING OFFICER MUST HAVE PERSONAL KNOWLEDGE OF THE FACT. Under Section 6(a) of
rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense
must have personal knowledge of that fact. The offense must also be committed in his presence or within his
view. (Sayo v. Chief of Police, 80 Phil. 859). There is no such personal knowledge in this case. Whatever
knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by
Cesar Masamlok. The location of the firearm was given by the appellant's wife. At the time of the appellant's
arrest, he was not in actual possession of any firearm or subversive document. Neither was he committing any
act which could be described as subversive. He was, in fact, plowing his field at the time of the arrest.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF PERSONS TO BE SECURE AGAINST ANY

UNREASONABLE SEIZURE; EXCEPTIONS; SHOULD BE STRICTLY CONSTRUED; REASON. The
right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a
most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of
arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would
be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrest
without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe
upon personal liberty and set back a basic right so often violated and so deserving of full protection.
4. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; ACTUAL

COMMISSION OF CRIME; ESSENTIAL PRECONDITION. In arrests without a warrant under Section
6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has
committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been
committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The
fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the
identity of the perpetrator.
5. ID.; ID.; ID.; WAIVER; REQUISITES. It cannot be presumed that there was a waiver, or that consent was
given by the accused to be searched simply because he failed to object. To constitute a waiver, it must appear
first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the
existence of such a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda.
de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not
amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice
Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra): ". . . As the constitutional guaranty is not
dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either
contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a
peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180, 1181)."
6. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF PERSONS TO BE SECURE AGAINST

UNREASONABLE SEARCHES AND SEIZURE; WAIVER THEREOF NOT PRESUMED. We apply the
rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and
that we do not presume acquiescence in the loss of fundamental rights." (Johnson v. Zerbst, 304 U.S. 458).
7. ID.; ID.; ID.; DOCUMENTS OBTAINED IN VIOLATION THEREOF, INADMISSIBLE AS EVIDENCE.

Considering that the questioned firearm and the alleged subversive documents were obtained in violation of
the accused's constitutional rights against unreasonable searches and seizures, it follows that they are
inadmissible as evidence.
8. ID.; ID.; RIGHT AGAINST SELF-INCRIMINATION; EVIDENCE OBTAINED IN VIOLATION

THEREOF INADMISSIBLE; ADMISSIONS MADE BY ARRESTING OFFICERS CANNOT BE USED
AGAINST ACCUSED. In proving ownership of the questioned firearm and alleged subversive documents,
the prosecution presented the two arresting officers who testified that the accused readily admitted ownership of
the gun after his wife pointed to the place where it was buried. The officers stated that it was the accused
himself who voluntarily pointed to the place where the alleged subversive documents were hidden. Assuming
this to be true, it should be recalled that the accused was never informed of his constitutional rights at the time
of his arrest. So that when the accused allegedly admitted ownership of the gun and pointed to the location of
the subversive documents after questioning, the admissions were obtained in violation of the constitutional right
against self-incrimination under Sec. 20 of Art. IV of the Bill of Rights which provides: "No person shall be
407
compelled to be a witness against himself. Any person under investigation for the commission of an offense
shall have the right to remain silent and to counsel, and to be informed of such right. . . ." The Constitution itself
mandates that any evidence obtained in violation of this right is inadmissible in evidence. Consequently, the
testimonies of the arresting officers as to the admissions made by the appellant cannot be used against him.
9. REMEDIAL LAW; EVIDENCE; RULE THAT FINDINGS OF FACTS OF TRIAL COURT GENERALLY
GIVEN GREAT RESPECT; NOT ABSOLUTE; REASON. We are not necessarily bound by the credibility
which the trial court attaches to a particular witness. As stated in People v. Cabrera (100 SCRA 424): ". . . Time
and again we have stated that when it comes to question of credibility the findings of the trial court are entitled
to great respect upon appeal for the obvious reason that it was able to observe the demeanor, actuations and
deportment of the witnesses during the trial. But we have also said that this rule is not absolute for otherwise
there would be no reversals of convictions upon appeal. We must reject the findings of the trial court where the
record discloses circumstances of weight and substance which were not properly appreciated by the trial court."
DECISION
This is an appeal from the decision of the Regional Trial Court of Davao del Sur, 11th Judicial Region, Digos,
Davao del Sur convicting defendant-appellant Ruben Burgos y Tito of the crime of Illegal Possession of
Firearms in Furtherance of Subversion. The dispositive portion of the decision reads:
"WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently established beyond reasonable doubt,
of the offense charged, pursuant to Presidential Decree No. 9, in relation to General Order No. 6, dated
September 22, 1972, and General Order No. 7, dated September 23, 1972, in relation further to Presidential
Decree No. 885, and considering that the firearm subject of this case was not used in the circumstances as
embraced in paragraph 1 thereof, applying the provision of indeterminate sentence law, accused Ruben Burgos
is hereby sentenced to suffer an imprisonment of twenty (20) years of reclusion temporal maximum, as
minimum penalty, to reclusion perpetua, as maximum penalty, pursuant to sub-paragraph B, of Presidential
Decree No. 9, as aforementioned, with accessory penalties, as provided for by law.
"As a result of this judgment, the subject firearm involved in this case (Homemade revolver, caliber .38, Smith
and Wesson, with Serial No. 8.69221) is hereby ordered confiscated in favor of the government, to be disposed
of in accordance with law. Likewise, the subversive documents, leaflets and/or propaganda seized are ordered
disposed of in accordance with law."
The information charged the defendant-appellant with the crime of illegal possession of firearm in furtherance
of subversion in an information which reads as follows:
"That in the afternoon of May 13, 1982 and thereabout at Tiguman, Digos, Davao del Sur, Philippines, within
the jurisdiction of this Court, the above-named accused with intent to possess and without the necessary license,
permit or authority issued by the proper government agencies, did then and there wilfully, unlawfully and
feloniously keep, possess, carry and have in his possession, control and custody one (1) homemade revolver,
caliber .38, make Smith and Wesson, with Serial No. 8.69221, which firearm was issued to and used by the
accused at Tiguman, Digos, Davao del Sur, his area of operations by one Alias Commander Pol for the New
People's Army (NPA), a subversive organization organized for the purpose of overthrowing the Government of
the Republic of the Philippines through lawless and violent means, of which the accused had knowledge, and
which firearm was used by the accused in the performance of his subversive tasks such as the recruitment of
New Members to the NPA and collection of contributions from the members.
"CONTRARY TO LAW."
The evidence for the prosecution is summarized in the decision of the lower court as follows: prLL
xxx xxx xxx
408
". . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it appears that by virtue of an
intelligent information obtained by the Constabulary and INP units, stationed at Digos, Davao del Sur, on May
12, 1982, one Cesar Masamlok personally and voluntarily surrendered to the authorities at about 9:00 o'clock
A.M. at Digos, Davao del Sur Constabulary Headquarters, stating that he was forcibly recruited by accused
Ruben Burgos as member of the NPA, threatening him with the use of firearm against his life, if he refused.
"Along with his recruitment, accused was asked to contribute one (1) chopa of rice and one peso (P1.00) per
month, as his contribution to the NPA (TSN, page 5, Hearing - October 14, 1982).
"Immediately, upon receipt of said information, a joint team of PC-INP units, composed of fifteen (15)
members, headed by Captain Melchesideck Bargio, (PC), on the following day, May 13, 1982, was dispatched
at Tiguman; Davao del Sur, to arrest accused Ruben Burgos. The team left the headquarter at 1:30 P.M., and
arrived at Tiguman, at more or less 2:00 o'clock P.M., where through the help of Pedro Burgos, brother of
accused, the team was able to locate accused, who was plowing his field. (TSN, pages 6-7, Hearing October 14,
1982).
"Right in the house of accused, the latter was called by the team and Pat. Bioco asked accused about his firearm,
as reported by Cesar Masamlok. At first accused denied possession of said firearm but later, upon question
profounded by Sgt. Alejandro Buncalan with the wife of the accused, the latter pointed to a place below their
house where a gun was buried in the ground. (TSN, page 8, Hearing October 14, 1982).
"Pat. Bioco then verified the place pointed by accused's wife and dug the grounds, after which he recovered the
firearm, Caliber .38 revolver, marked as Exhibit "A" for the prosecution.
"After the recovery of the firearm, accused likewise pointed to the team, subversive documents which he
allegedly kept in a stock pile of cogon, at a distance of three (3) meters apart from his house. Then Sgt. Taroy
accordingly verified beneath said cogon grass and likewise recovered documents consisting of notebook colored
maroon with spiral bound, Exhibit "B" for the prosecution; a pamphlet consisting of eight (8) leaves, including
the front and back covers entitled Ang Bayan, Pahayagan ng Partido Komunista ng Pilipinas, Pinapatnubayan
ng Marxismo, Leninismo, Kaisipang Mao Zedong, dated December 31, 1980, marked as Exhibit "C", and
another pamphlet Asdang Pamantalaang Masa sa Habagatang Mindanao, March and April 1981 issue,
consisting of ten (10) pages, marked as Exhibit "D" for the prosecution.
"Accused, when confronted with the firearm, Exhibit "A", after its recovery, readily admitted the same as issued
to him by Nestor Jimenez, otherwise known as a certain Alias Pedipol, allegedly team leader of the sparrow unit
of New People's Army, responsible in the liquidation of target personalities, opposed to NPA ideological
movement, an example was the killing of the late Mayor Llanos and Barangay Captain of Tienda Aplaya, Digos,
Davao del Sur. (TSN, pages 1-16, Hearing October 14, 1982).
"To prove accused's subversive activities, Cesar Masamlok, a former NPA convert was presented, who declared
that on March 7, 1972, in his former residence at Tiguman, Digos, Davao del Sur, accused Ruben Burgos,
accompanied by his companions Landrino Burgos, Oscar Gomez and Antonio Burgos, went to his house at
about 5:00 o'clock P.M. and called him downstair. Thereupon, accused told Masamlok, their purpose was to ask
rice and one (1) peso from him, as his contribution to their companions, the NPA of which he is now a member.
(TSN, pages 70, 71, 72, Hearing January 4, 1983).
"Accused and his companions told Masamlok, he has to join their group otherwise, he and his family will be
killed. He was also warned not to reveal anything with the government authorities. Because of the threat to his
life and family, Cesar Masamlok joined the group. Accused then told him, he should attend a seminar scheduled
on April 19, 1982. Along with this invitation, accused pulled out from his waistline a .38 caliber revolver which
Masamlok really saw, being only about two (2) meters away from accused, which make him easily identified
said firearm, as that marked as Exhibit "A" for the prosecution (TSN, pages 72, 73, and 74, Hearing January
4, 1983).
"On April 19, 1982, as previously invited, Masamlok, accompanied by his father, Matuguil Masamlok, Isabel
Ilan and Ayok Ides went to the house of accused and attended the seminar. Those present in the seminar were:
accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos, alias Pedipol and one alias Jamper.
409
"The first speaker was accused Ruben Burgos, who said very distinctly that he is an NPA together with his
companions, to assure the unity of the civilian. That he encouraged the group to overthrow the government,
emphasizing that those who attended the seminar were already members of the NPA, and if they reveal to the
authorities, they will be killed.
"Accused, while talking, showed to the audience pamphlets and documents, then finally shouted, the NPA will
be victorious. Masamlok likewise identified the pamphlets as those marked as Exhibits "B", "C", and "D" for
the prosecution. (TSN, pages 75, 76 and 77, Hearing January 4, 1983).
"Fiscal Lovitos, before accused signed his statement, explained to him his constitutional rights to remain silent,
light to counsel and right to answer any question propounded or not.
"With the aid of Atty. Anyog, accused signed his confession in the presence of Atty. Anyog and Fiscal Lovitos,
without the presence of military authorities, who escorted the accused, but were sent outside the cubicle of
Fiscal Lovitos, while waiting for the accused. (TSN, pages 36-40, Hearing November 15, 1982).
"Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez, who likewise expounded their own
opinions about the NPA, It was also announced in said seminar that a certain Tonio Burgos, will be responsible
for the collection of the contribution from the members. (TSN, pages 78-79, Hearing January 4, 1983).
"Finally, in order to prove illegal possession by accused of the subject firearm, Sgt. Epifanio Comabig, incharge of firearms and explosives, NCO, Headquarter, Philippine Constabulary, Digos, Davao del Sur, was
presented and testified, that among the lists of firearm holders in Davao del Sur, nothing was listed in the name
of accused Ruben Burgos, neither was his name included among the lists of persons who applied for the
licensing of the firearm, under Presidential Decree No. 1745.
"On May 12, 1982, however, Cesar Masamlok surrendered to Captain Bargio of the Provincial Headquarters of
the Philippine Constabulary, Digos, Davao del Sur.
"After the above-testimony the prosecution formally closed its case and offered its exhibits, which were all
admitted in evidence, despite objection interposed by counsel for accused, which was accordingly overruled."
"Assistant Provincial Fiscal Panfilo Lovitos was presented to prove that on May 19, 1982, he administered the
subscription of the extra-judicial confession of accused Ruben Burgos, marked as Exhibit "E" for the
prosecution, consisting of five (5) pages.
On the other hand, the defendant-appellant's version of the case against him is stated in the decision as follows:
"Appearing voluntarily in said office, for the subscription of his confession, Fiscal Lovitos, realizing that
accused was not represented by counsel, requested the services of Atty. Anyog, whose office is adjacent to the
Fiscal's Office, to assist accused in the subscription of his extrajudicial statement.
"Atty. Anyog assisted accused in the reading of his confession from English to Visayan language, resulting to
the deletion of question No. 19 of the document, by an inserted certification of Atty. Anyog and signature of
accused, indicating his having understood, the allegations of his extrajudicial statement.
"From his farm, the military personnel, whom he said he cannot recognize, brought him to the PC Barracks at
Digos, Davao del Sur, and arrived there at about 3:00 o'clock, on the same date. At about 8:00 o'clock P.M., in
the evening, he was investigated by soldiers, whom he cannot identify because they were wearing a civilian
attire. (TSN, page 141, Hearing June 15, 1983).
"The investigation was conducted in the PC barracks, where he was detained with respect to the subject firearm,
which the investigator, wished him to admit but accused denied its ownership. Because of his refusal, accused
was mauled, hitting him on the left and right side of his body which rendered him unconscious. Accused in an
atmosphere of tersed solemnity, crying and with emotional attachment, described in detail how he was tortured
and the ordeals he was subjected.
410
"He said, after recovery of his consciousness, he was again confronted with subject firearm, Exhibit "A", for
him to admit and when he repeatedly refused to accept as his own firearm, he was subjected to further prolong
(sic) torture and physical agony. Accused said, his eyes were covered with wet black cloth with pungent effect
on his eyes. He was undressed, with only blindfold, pungent water poured in his body and over his private parts,
making his entire body, particularly his penis and testicle, terribly irritating with pungent pain.
"All along, he was investigated to obtain his admission. The process of beating, mauling, pain and or ordeal was
repeatedly done in similar cycle, from May 13 and 14, 1982, intercepted only whenever he fell unconscious and
again repeated after recovery of his senses.
"Finally on May 15, 1982, after undergoing the same torture and physical ordeal, he was seriously warned, if he
win still adamantly refuse to accept ownership of the subject firearm, he will be salvaged, and no longer able to
bear any further the pain and agony, accused admitted ownership of subject firearm.
"After his admission, the mauling and torture stopped, but accused was made to sign his affidavit marked as
Exhibit "E" for the prosecution, consisting of five (5) pages, including the certification of the administering
officer. (TSN, pages 141-148, Hearing - June 15, 1983).
"In addition to how he described the torture inflicted on him, accused, by way of explanation and commentary
in details, and going one by one, the allegations and or contents of his alleged extra-judicial statement,
attributed his answers to those questions involuntarily made only because of fear, threat and intimidation of his
person and family, as a result of unbearable excruciating pain he was subjected by an investigator, who,
unfortunately he cannot identify and was able to obtain his admission of the subject firearm, by force and
violence exerted over his person.
"To support denial of accused of being involved in any subversive activities, and also to support his denial to the
truth of his alleged extra-judicial confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45, 46 and 47,
along with his answers to those questions, involving Honorata Arellano alias Inday Arellano, said Honorata
Arellano appeared and declared categorically, that the above-questions embraced in the numbers allegedly
stated in the extra-judicial confession of accused, involving her to such NPA personalities, as Jamper, Pol,
Anthony, etc., were not true because on the date referred on April 28, 1982, none of the persons mentioned
came to her house for treatment, neither did she meet the accused nor able to talk with him. (TSN, pages 118121, Hearing May 18, 1983).
"She, however, admitted being familiar with one Oscar Gomez, and that she was personally charged with
subversion in the Office of the Provincial Commander, Philippine Constabulary, Digos, Davao del Sur, but said
charge was dismissed without reaching the Court. She likewise stated that her son, Rogelio Arellano, was
likewise charged for subversion filed in the Municipal Trial Court of Digos, Davao del Sur, but was likewise
dismissed for lack of sufficient evidence to sustain his conviction. (TSN, pages 121-122, in relation to her crossexamination, Hearing May 18, 1983).
"To support accused's denial of the charge against him, Barangay Captain of Tiguman, Digos, Davao del Sur,
Salvador Galaraga was presented, who declared, he was not personally aware of any subversive activities of
accused, being his neighbor and member of his barrio. On the contrary, he can personally attest to his good
character and reputation, as a law abiding citizen of his barrio, being a carpenter and farmer thereat. (TSN,
pages 128-129, Hearing May 18, 1983).
"He, however, admitted in cross-examination, that there were a lot of arrests made by the authorities in his
barrio involving subversive activities but they were released and were not formally charged in Court because
they publicly took their oath of allegiance with the government. (TSN, pages 133-134, in relation to page 136,
Hearing May 18, 1983).
"Finally, to support accused's denial of the subject firearm, his wife, Urbana Burgos, was presented and who
testified that the subject firearm was left in their house by Cesar Masamlok and one Pedipol on May 10, 1982. It
was night time, when the two left the gun, alleging that it was not in order, and that they will leave it behind,
temporarily, for them to claim it later. They were the ones who buried it. She said, her husband, the accused,
was not in their house at that time and that she did not inform him about said firearm neither did she report the
matter to the authorities, for fear of the life of her husband. (TSN, page 24, November 22, 1983).
411
"On cross-examination, she said, even if Masamlok during the recovery of the firearm, was wearing a mask, she
can still identify him (TSN, page 6, Hearing - November 22, 1983).
join the New People's Army (NPA), they did not have any warrant of arrest or search warrant with them (TSN,
p. 25, October 14, 1982; and TSN, p. 61, November 15, 1982).
Article IV, Section 3 of the Constitution provides:

"After the above-testimony, accused through counsel formally rested his case, in support of accused's through
counsel manifestation for the demurrer to evidence of the prosecution, or in the alternative for violation merely
of simple illegal possession of firearm, under the Revised Administrative Code, as amended by Republic Act
No. 4, reflected in the manifestation of counsel for accused. (TSN, pages 113-114, Hearing May 18, 1983)"
Accused-appellant Ruben Burgos now raises the following assignments of error, to wit: cdrep
I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE ARREST OF ACCUSED-APPELLANT
WITHOUT VALID WARRANT TO BE LAWFUL.
"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as
may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the persons or things to be seized."
The constitutional provision is a safeguard against wanton and unreasonable invasion of the privacy and liberty
of a citizen as to his person, papers and effects. This Court explained in Villanueva v. Querubin (48 SCRA 345)
why this right is so important:
II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE HOUSE OF ACCUSEDAPPELLANT FOR FIREARM WITHOUT VALID WARRANT TO BE LAWFUL.
III THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT GUILTY BEYOND

REASONABLE DOUBT FOR VIOLATION OF P.D. No. 9 IN RELATION TO GENERAL ORDERS NOS. 6
AND 7.
Was the arrest of Ruben Burgos lawful? Were the search of his house and the subsequent confiscation of a
firearm and documents allegedly found therein conducted in a lawful and valid manner? Does the evidence
sustaining the crime charged meet the test of proving guilt beyond reasonable doubt?
The records of the case disclose that when the police authorities went to the house of Ruben Burgos for the
purpose of arresting him upon information given by Cesar Masamlok that the accused allegedly recruited him to
"It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a
recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf.
Hoffa v. United States, 385 US 293 [1966]) What is sought to be guarded is a man's prerogative to choose who
is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice
of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however
powerful, does not as such have access except under the circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by
government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his
life. (Cf. Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 US 616, 630
[1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court
[1966], could fitly characterize this constitutional right as the embodiment of a `spiritual concept: the belief that
to value the privacy of home and person and to afford its constitutional protection against the long reach of
government is no less than to value human dignity, and that his privacy must not be disturbed except in case of
overriding social need, and then only under stringent procedural safeguards.' (Ibid, p. 47)."
412
The trial court justified the arrest of the accused-appellant without any warrant as falling under one of the
instances when arrests may be validly made without a warrant. Rule 113, Section 6 ** of the Rules of Court,
provides the exceptions as follows: LibLex
Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is
about to commit an offense must have personal knowledge of that fact. The offense must also be committed in
his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).
a) When the person to be arrested has committed, is actually committing, or is about to commit an offense in his
presence;
There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers,
it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given
by the appellant's wife.
b) When an offense has in fact been committed, and he has reasonable ground to believe that the person to be
arrested has committed it;
c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred
from one confinement to another.
The Court stated that even if there was no warrant for the arrest of Burgos, the fact that "the authorities received
an urgent report of accused's involvement in subversive activities from a reliable source (report of Cesar
Masamlok) the circumstances of his arrest, even without judicial warrant, is lawfully within the ambit of
Section 6-A of Rule 113 of the Rules of Court and applicable jurisprudence on the matter."
If the arrest is valid, the consequent search and seizure of the firearm and the alleged subversive documents
would become an incident to a lawful arrest as provided by Rule 126, Section 12, which states:
"A person charged with an offense may be searched for dangerous weapons or anything which may be used as
proof of the commission of the offense."
The conclusions reached by the trial court are erroneous.
At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document.
Neither was he committing any act which could be described as subversive. He was, in fact, plowing his field at
the time of the arrest.
The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his
liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of
warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a
warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the
rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so
would infringe upon personal liberty and set back a basic right so often violated and so deserving of full
protection. LLpr
The Solicitor General is of the persuasion that the arrest may still be considered lawful under Section 6(b) using
the test of reasonableness. He submits that the information given by Cesar Masamlok was sufficient to induce a
reasonable ground that a crime has been committed and that the accused is probably guilty thereof.
In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to
believe that the person to be arrested has committed a crime. A crime must in fact or actually have been
committed first. That a crime has actually been committed is an essential precondition. It is not enough to
suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed.
The test of reasonable ground applies only to the identity of the perpetrator.
413
In this case, the accused was arrested on the sole basis of Masamlok's verbal report. Masamlok led the
authorities to suspect that the accused had committed a crime. They were still fishing for evidence of a crime
not yet ascertained. The subsequent recovery of the subject firearm on the basis of information from the lips of a
frightened wife cannot make the arrest lawful. If an arrest without warrant is unlawful at the moment it is made,
generally nothing that happened or is discovered afterwards can make it lawful. The fruit of a poisoned tree is
necessarily also tainted.
More important, we find no compelling reason for the haste with which the arresting officers sought to arrest
the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if
indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing
that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no
showing that the whereabouts of the accused were unknown.
The basis for the action taken by the arresting officer was the verbal report made by Masamlok who was not
required to subscribe his allegations under oath. There was no compulsion for him to state truthfully his charges
under pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently, the need to go through the
process of securing a search warrant and a warrant of arrest becomes even more clear. The arrest of the accused
while he was plowing his field is illegal. The arrest being unlawful, the search and seizure which transpired
afterwards could not likewise be deemed legal as being mere incidents to a valid arrest.
". . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not
place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional
rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation
thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180, 1181)."
We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental
constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." (Johnson v.
Zerbst, 304 U.S. 458). cdll
That the accused-appellant was not apprised of any of his constitutional rights at the time of his arrest is evident
from the records:
ATTY. CALAMBA:
"Q When you went to the area to arrest Ruben Burgos, you were not armed with an arrest warrant?
"A None Sir.

Neither can it be presumed that there was a waiver, or that consent was given by the accused to be searched
simply because he failed to object. To constitute a waiver, it must appear first that the right exists; secondly, that
the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said
person had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact
that the accused failed to object to the entry into his house does not amount to a permission to make a search
therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de
Garcia v. Locsin (supra):
xxx xxx xxx
"Q Neither were you armed with a search warrant?
"A No Sir.
"Q As a matter of fact, Burgos was not present in his house when you went there?
"A But he was twenty meters away from his house.
414
"Q Ruben Burgos was then plowing his field?
"Q As a matter of fact, he denied that he has ever a gun?
"A Yes Sir.
"A Yes Sir.
"Q When you called for Ruben Burgos you interviewed him?
"Q As a matter of fact, the gun was not in his possession?
"A Yes Sir.
"A It was buried down in his house.
"Q And that you told him that Masamlok implicated him?
"Q As a matter of fact, Burgos did not point to where it was buried?
"A No Sir.
"A Yes Sir."(TSN, pp. 25-26, Hearing October 14, 1982).
"Q What did you tell him?
Considering that the questioned firearm and the alleged subversive documents were obtained in violation of the
accused's constitutional rights against unreasonable searches and seizures, it follows that they are inadmissible
as evidence.
"A That we received information that you have a firearm, you surrender that firearm, first he denied but when
Sgt. Buncalan interviewed his wife, his wife told him that it is buried, I dug the firearm which was wrapped
with a cellophane.
"Q In your interview of Burgos you did not remind him of his rights under the constitution considering that he
was purposely under arrest?
There is another aspect of this case.
In proving ownership of the questioned firearm and alleged subversive documents, the prosecution presented
the two arresting officers who testified that the accused readily admitted ownership of the gun after his wife
pointed to the place where it was buried. The officers stated that it was the accused himself who voluntarily
pointed to the place where the alleged subversive documents were hidden. cdphil
"A I did not.
415
Assuming this to be true, it should be recalled that the accused was never informed of his constitutional rights at
the time of his arrest. So that when the accused allegedly admitted ownership of the gun and pointed to the
location of the subversive documents after questioning, the admissions were obtained in violation of the
constitutional right against self-incrimination under Sec. 20 of Art. IV of the Bill of Rights which provides:
"No person shall be compelled to be a witness against himself. Any person under investigation for the
commission of an offense shall have the right to remain silent and to counsel, and to be informed of such
right . . ."
The Constitution itself mandates that any evidence obtained in violation of this right is inadmissible in
evidence. Consequently, the testimonies of the arresting officers as to the admissions made by the appellant
cannot be used against him.
The trial court validly rejected the extra-judicial confession of the accused as inadmissible in evidence. The
court stated that the appellant's having been exhaustively subjected to physical terror, violence, and third degree
measures may not have been supported by reliable evidence but the failure to present the investigator who
conducted the investigation gives rise to the "provocative presumption" that indeed torture and physical
violence may have been committed as stated.
The accused-appellant was not accorded his constitutional right to be assisted by counsel during the custodial
interrogation. The lower court correctly pointed out that the securing of counsel, Atty. Anyog, to help the
accused when he subscribed under oath to his statement at the Fiscal's Office was too late. It could have no
palliative effect. It cannot cure the absence of counsel at the time of the custodial investigation when the
extrajudicial statement was being taken.
We find the testimony of Masamlok inadequate to convict Burgos beyond reasonable doubt. It is true that the
trial court found Masamlok's testimony credible and convincing. However, we are not necessarily bound by the
credibility which the trial court attaches to a particular witness. As stated in People v. Cabrera (100 SCRA 424):
xxx xxx xxx
". . . Time and again we have stated that when it comes to question of credibility the findings of the trial court
are entitled to great respect upon appeal for the obvious reason that it was able to observe the demeanor,
actuations and deportment of the witnesses during the trial. But we have also said that this rule is not absolute
for otherwise there would be no reversals of convictions upon appeal. We must reject the findings of the trial
court where the record discloses circumstances of weight and substance which were not properly appreciated by
the trial court."
The situation under which Cesar Masamlok testified is analogous to that found in People v. Capadocia (17
SCRA 981): cdrep
"The case against appellant is built on Ternura's testimony, and the issue hinges on how much credence can be
accorded to him. The first consideration is that said testimony stands uncorroborated. Ternura was the only
witness who testified on the mimeographing incident . . .
xxx xxx xxx

With the extra-judicial confession, the firearm, and the alleged subversive documents inadmissible in evidence
against the accused-appellant, the only remaining proof to sustain the charge of Illegal Possession of Firearm in
Furtherance of Subversion is the testimony of Cesar Masamlok.
". . . He was a confessed Huk under detention at the time. He knew his fate depended upon how much he
cooperated with the authorities, who were then engaged in a vigorous anti-dissident campaign. As in the case of
Rodrigo de Jesus, whose testimony We discounted for the same reason, that of Ternura cannot be considered as
proceeding from a totally unbiased source . . ."
416
In the instant case, Masamlok's testimony was totally uncorroborated. Considering that Masamlok surrendered
to the military, certainly his fate depended on how eagerly he cooperated with the authorities. Otherwise, he
would also be charged with subversion. The trade-off appears to be his membership in the Civil Home Defense
Force. (TSN, p. 83, January 4, 1983). Masamlok may be considered as an interested witness. It can not be said
that his testimony is free from the opportunity and temptation to be exaggerated and even fabricated for it was
intended to secure his freedom.
Despite the fact that there were other persons present during the alleged NPA seminar of April 19, 1982 i.e.,
Masamlok's father Matuguil Masamlok, Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could
have corroborated Cesar Masamlok's testimony that the accused used the gun in furtherance of subversive
activities or actually engaged in subversive acts, the prosecution never presented any other witness.
This Court is, therefore, constrained to rule that the evidence presented by the prosecution is insufficient to
prove the guilt of the accused beyond reasonable doubt.
As held in the case of People v. Bania (34 SCRA 347):.

"It is evident that once again, reliance can be placed on People v. Dramayo (42 SCRA 59), where after stressing
that accusation is not, according to the fundamental law, synonymous with guilt, it was made clear: `Only if the
judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely
by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required
that every circumstance favoring his innocence be duly taken into account. The proof against him must survive
the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be
satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he
perpetrate the act but that it amounted to a crime. What is required then is moral certainty.' (Ibid, 64. Cf. People
v. Alvarez, 55 SCRA 81; People v. Joven, 64 SCRA 126; People v. Ramirez, 69 SCRA 144; People v. Godoy, 72
SCRA 69; People v. Lopez, 74 SCRA 205; People v. Poblador, 76 SCRA 634; People v. Quiazon, 78 SCRA
513; People v. Nazareno, 80 SCRA 484; People v. Gabilan, 115 SCRA 1; People v. Gabiana, 117 SCRA 260;
and People v. Ibanga, 124 SCRA 697)."
We are aware of the serious problems faced by the military in Davao del Sur where there appears to be a wellorganized plan to overthrow the Government through armed struggle and replace it with an alien system based
on a foreign ideology. The open defiance against duly constituted authorities has resulted in unfortunate levels
of violence and human suffering publicized all over the country and abroad. Even as we reiterate the need for all
freedom loving citizens to assist the military authorities in their legitimate efforts to maintain peace and national
security, we must also remember the dictum in Morales v. Enrile (121 SCRA 538, 569) when this Court stated:
cdphil
"While the government should continue to repel the communists, the subversives, the rebels, and the lawless
with all the means at its command, it should always be remembered that whatever action is taken must always
be within the framework of our Constitution and our laws."
Violations of human rights do not help in overcoming a rebellion. A cavalier attitude towards constitutional
liberties and protections will only fan the increase of subversive activities instead of containing and suppressing
them.
WHEREFORE, the judgment of conviction rendered by the trial court is REVERSED and SET ASIDE. The
accused-appellant is hereby ACQUITTED, on grounds of reasonable doubt, of the crime with which he has
been charged.
The subject firearm involved in this case (homemade revolver, caliber .38, Smith and Wesson, with Serial No.
8.69221) and the alleged subversive documents are ordered disposed of in accordance with law.
Cost de oficio.
SO ORDERED.
Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.
||| (People v. Burgos y Tito, G.R. No. L-68955, [September 4, 1986], 228 PHIL 1-23)
417

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EN BANC

[A.C. No. 3086. February 23, 1988.]

2. ID.; ID.; ID.; BOLSTERED BY RELEASE OF US$3,000 TO ACCUSED DESPITE FORFEITURE

HFL Guilder HFL 430.00

French Franc F/ 6,860.00

Canadian Dollar C$ 990.00

without authority from the Central Bank.

Japanese Yen Y32,800,000.00

Swiss Franc SW. FR 6,9000.00

Section 6 of Circular No. 960 of the Central Bank provides as follows:

Singapore Dollar S$ 9,945.00

This resolution is immediately executory.

Narvasa, J., no part: did not participate in deliberations.

Amado M. Santiago, Jr. for petitioner.

1. COURTS; SANDIGANBAYAN; COLLEGIATE CHARACTER THEREOF RENDERS BASELESS FEAR

2. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; DOCTRINE

4. ID.; DELITO CONTINUADO; EXPLAINED; CONCEPT APPLIED TO CRIMES PENALIZED UNDER

6. CRIMINAL LAW; THEFT; "SINGLE LARCENY DOCTRINE"; DEFINED; "SEPARATE LARCENY

Hence, the filing of the instant petition.

Re: Disqualification of the Sandiganbayan Presiding Justice

Re: Claim of denial of due process

(1) She was a public officer;

(3) Those aliens were disqualified;

(4) She was cognizant of such fact; and

In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:

Re: Delito Continuado

On other hand, we declined to apply the concept to the following cases:

[G.R. No. 184343. March 2, 2009.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESUS DOMINGO, accused-appellant.

Criminal Case No. 1496-M-2000 for Murder

Criminal Case No. 1499-M-2000 for Frustrated Murder

Criminal Case No. 1497-M-2000 for Murder

Criminal Case No. 1501-M-2000 for Attempted Murder

In the Decision dated 30 April 2008, the fallo reads:

This Court affirms the judgment of conviction.

The Case for the Prosecution

[G.R. No. 166040. April 26, 2006.]

NIEL F. LLAVE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

The Case for the Accused

THE MATERIAL INCONSISTENCIES BETWEEN THE TESTIMONY OF COMPLAINING WITNESS

PRIVATE COMPLAINANT IS NOT A CREDIBLE WITNESS.

WHETHER OR NOT EVIDENCE WAS SUFFICIENT TO CONVICT PETITIONER BEYOND

PETITIONER ACTED WITHOUT DISCERNMENT.

PETITIONER WAS DENIED DUE PROCESS OF LAW. 60

Petitioner's arguments are bereft of merit.

The petition is not meritorious.

Q: From what time up to what time?

A: From 12:00 o'clock noon up to 6:00 p.m.

A: Yes, Sir, on the same date I went to school.

Q: At about 6:00 p.m., Sept. 24, 2002, where were you?

Q: And what did you do after you went home?

A: I changed my clothes and then I proceeded to the store of my mother.

Q: And where is that store of your mother where you went?

A: The things she used in selling.

A: It is near our house, walking distance.

Q: What is your mother selling in that store?

A: She sells quail eggs.

Q: And what happened to you in going to your house?

A: Totoy pulled me.

Q: Pulled you where?

Q: And that was past 6:00 p.m. already?

A: Totoy pulled me towards an uninhabited house.

Q: What happened after Totoy pulled you in an uninhabited house?