People vs. Caballero, 149028-30, 02 April 2003, 400 SCRA 424 proceeding to the house of Susana.
ding to the house of Susana. She called out
People vs. Palaganas, G.R. No. 165483, 12 September 2006
People vs. Gonzalez, G.R. No. 139542, 21 June 2001, 359 SCRA 220
G.R. No. 138943, 17 September 2001, 365 SCRA 373
P e o pl e vs . Ac a -a c, G. R. N o. 14 2 50 0, 2 0 Ap r il 2 0 01, 3 5 7 SC R A 37 3
Valenzuela vs. People, G.R. No. 160188, 21 June 2007, 525 SCRA 306
Peop le vs. Bu nt a g, G. R. No. 1 23 07 0 , 14 Ap ri l 20 04, 4 27 SC R A 1 80
People vs. Comadre, G. R. No. 153559, 08 June 2004, 431 SCRA 366
People vs. Manijas, G.R. No. 148699, 15 November 2002, 391 SCRA 731
People vs. Compo, G.R. No. 112990, 28 May 2001, 358 SCRA 266
Dimakuta vs. People g.r. no. 206513
G.R. Nos. 149028-30 April 2, 2003
THE PEOPLE OF THE PHILIPPINES,
appellee,
vs.
ARMANDO CABALLERO, RICARDO
CABALLERO, MARCIANO CABALLERO,
JR., and ROBITO CABALLERO, accused.
ARMANDO CABALLERO, RICARDO
CABALLERO, and MARCIANO
CABALLERO, JR., appellants.
CALLEJO, SR., J.:
Before the Court on automatic review is the
Decision1 of the Regional Trial Court of San Carlos
City, Negros Occidental, Branch 57, convicting
appellants Armando Caballero, Ricardo Caballero
and Marciano Caballero, Jr. of murder in Criminal
Cases Nos. RTC-1217 and RTC-1218 and meting
on each of them the supreme penalty of death and
ordering them to pay damages; and of frustrated
murder in Criminal Case No. RTC-1219 and
imposing on them the penalty of reclusion perpetua.
The Antecedents
Teresito (Dodong) Mondragon and his family lived
in a compound surrounded by a barbed-wire fence
at New Sumakwel, Broce Street, San Carlos City,
Negros Occidental. Living in the same compound
were Ricardo Caballero and his family; and Myrna
Bawin, the sister of Eugene Tayactac, and her
family. Beside the compound was the house of
Leonilo Broce, a nephew of Wilma Broce.
In the afternoon of August 3, 1994, Armando
(Baby), Robito (Bebot) and Marciano, Jr. (Jun), all
surnamed Caballero, were having a drinking spree
in the house of their brother Ricardo in the
Mondragon Compound. At about 7:00 p.m. of said
date, Eugene Tayactac and Arnold Barcuma
arrived in the sari-sari store of Wilma Broce which
was across the Mondragon Compound. Eugene had
dinner in the store while Arnold proceeded to the
house of Susana Broce, Eugene’s girlfriend, for a
chat. Susana’s house was about 15 meters away
from the store of Wilma. Momentarily, Armando
arrived in the store and asked Eugene in an angry
tone: "Gene mopalit ka?" (Gene, will you buy?).
Eugene replied: "What is this all about? We don’t
have any quarrel between us." Armando left the
store but stood by the gate of the barbed-wired
fence of the Mondragon Compound. His brothers
Ricardo, Robito and Marciano, Jr. joined him.
Ricardo and Robito were armed with knives. When
Wilma told Eugene that she was closing the store
already, he stood up and left the store on his way to
Susana’s house. At that time, Myrna Bawin, who
was standing by the window of their house saw her
brother Eugene going out of the store and
to him and advised him to go home. Myrna then
left the window to pacify her crying baby.
As Eugene walked by the gate of the Mondragon
Compound, Armando suddenly grabbed Eugene
towards the compound. Eugene resisted.
Spontaneously, Ricardo, Marciano, Jr. and Robito
joined Armando and assaulted Eugene. Armando
took the wooden pole supporting the clothesline
and hit Eugene with it. The latter tried to parry the
blows of the Caballero brothers, to no avail. In the
process, Eugene was stabbed three times. As
Eugene was being assaulted, Myrna returned to the
window of her house and saw the Caballero
brothers assaulting Eugene. She shouted for help
for her hapless brother. Wilma, who witnessed the
whole incident, was shocked to immobility at the
sudden turn of events.
From the nearby house of Susana, Arnold saw the
commotion and rushed to the scene to pacify the
protagonists. Arnold told the Caballero brothers:
"Bay, what is the trouble between you and
Eugene?" However, Ricardo accosted Arnold and
stabbed the latter on the left side of his body.
Forthwith, Robito, Marciano, Jr. and Armando
ganged up on Arnold. Two of them stabbed Arnold
on his forearm. Arnold fled for his life and hid
under the house of a neighbor.
For his part, Leonilo rushed from his house to
where the commotion was. He was, however, met
by Robito who stabbed him on the chest.
Wounded, Leonilo retreated and pleaded to his
uncle Lucio Broce for help: "Tio, help me because
I am hit." The commotion stopped only upon the
arrival of Teresito Mondragon who was able to
pacify the Caballero brothers. They all returned to
the compound.
In the meantime, Lucio Broce, the uncle of Leonilo
brought the injured Eugene, Leonilo and Arnold to
the Planters Hospital for medical treatment.
Eugene and Leonilo eventually died from the stab
wounds they sustained.
Dr. Filped A. Maisog performed an autopsy on the
cadaver of Eugene. He signed a postmortem report
containing the following findings:
POST-MORTEM EXAMINATION
Name: Eugenio Tayactac, 22 years old, male,
single
Address: New Sumakwel, San Carlos City, Neg.
Occ.
Place of Incident: New Sumakwel, San Carlos
City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: August 3, 1994 @
8:30 P.M.
Date & Time Examined: August 3, 1994 @ 10:40
P.M.
Post-Mortem Findings:
= Stab wound (L) anterior chest 2 cm. 5th ICS
MCL directed postero laterally, lacerating (L)
auricle of the heart, and the (L) pulmonary artery
and the left middle lobe of the lungs;
= Stab wound (R) anterior chest 2 cm. long
5th ICS parasternal line directed posteriorly;
= Stab wound (R) posterior chest level 7th
ICS 2 cm. long directed anteriorly.
CAUSE OF DEATH: Severe Hemorrhage
secondary to Multiple Stab wounds with Massive
Hemothorax (L) and Hemopneumothorax (R).2
He testified that the stab wounds could have been
caused by a sharp-edged single-bladed or double-
bladed instrument, or by three instruments.3
Dr. Jose Carlos L. Villarante performed an autopsy
on the cadaver of Leonilo. He signed a postmortem
report containing the following findings:
POST-MORTEM EXAMINATION
Name: Leonilo Broce, 22 years old, male,
married
Address: New Sumakwel, San Carlos City, Neg.
Occ.
Place of Incident: New Sumakwel, San Carlos
City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: Aug. 3, 1994 @ 8:30
P.M.
Date & Time Examined: Aug. 3, 1994 @ 8:45
P.M.
Post-mortem findings:
= Stab wound, (R) post chest, about the level
of the 6th and 7th RICS, post. axillary line.
CAUSE OF DEATH: Hypovolemic shock
secondary to multiple organ injury.4
Dr. Edgardo B. Quisumbing attended to and
operated on Arnold Barcuma. He signed a medical
certificate stating that Arnold sustained the
following injuries:
= Lacerated wound 2 cm. (R) forearm middle
3rd
= Incised wound 2 inches (L) forearm middle
3rd
= Stabbed wound, 2 inches in length (L)
chest, anterior axillary line at the level of the 7th
intercostal space, penetrating thoracic cavity and
abdominal cavity.
... 5
On the witness stand, Dr. Quisumbing testified that
the wounds sustained by Arnold could have been
caused by three different sharp-pointed
instruments.6 He further testified that Arnold
would have died because of the stab wound on his
chest, were it not for the timely medical
intervention.
On August 5, 1994, Armando, Ricardo, Marciano,
Jr. and Robito, were charged with Murder for the
death of Leonilo Broce. The Information, docketed
as Criminal Case No. RTC 1217 reads:
That on or about 8:00 o’clock, P.M., August 3,
1994 at New Sumakwel, San Carlos City, Negros
Occidental, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
conspiring together and helping one another,
armed with pieces of wood and hunting knives,
and with intent to kill, with treachery and evident
premeditation, did, then and there, wilfully,
unlawfully and feloniously, with the use of said
weapons, attack, assault and use personal violence
upon the person of one LEONILO BROCE, by
striking the latter with the use of pieces of wood
and stabbing him, thereby inflicting upon said
Leonilo Broce physical injury described as
follows:
= Stabbed wound (R) chest penetrating
thoracic cavity.
and which injury caused massive hemorrhage
which resulted to the death of Leonilo Broce.
That an aggravating circumstance of abuse of
superior strength is attendant in the commission of
the offense.
CONTRARY TO LAW.7
They were also charged with the same crime for
the death of Eugene Tayactac in an Information
docketed as Criminal Case No. RTC-1218, which
reads:
That on or about 8:00 o’clock, P.M., August 3,
1994 at New Sumakwel, San Carlos City, Negros
Occidental, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
conspiring together and helping one another,
armed with pieces of wood and hunting knives,
and with intent to kill, with treachery and evident
premeditation, did, then and there, wilfully,
unlawfully and feloniously, with the use of said
weapons, attack, assault and use personal violence
upon the person of one EUGENE TAYACTAC, by
striking the latter with use of pieces of wood and
stabbing him thereby inflicting upon said Eugene
Tayactac physical injuries which resulted to the
death of the latter.
That an aggravating circumstances of abuse of
superior strength is attendant in the commission of
the offense.
CONTRARY TO LAW.8
Another Information was filed against the
Caballero brothers for frustrated murder for the
injuries of Arnold Barcuma. Docketed as Criminal
Case No. RTC-1219, it reads:
That on or about 8:00 o’clock, P.M., August 3,
1994 at New Sumakwel, San Carlos City, Negros
Occidental, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
conspiring together and helping one another,
armed with pieces of wood and hunting knives,
with intent to kill, with treachery and evident
premeditation, did, then and there, wilfully,
unlawfully and feloniously attack, assault and use
personal violence upon the person of one
ARNOLD BARCUMA, by striking him with the
use of pieces of wood and stabbing him, thereby
inflicting upon the latter physical injuries which
would have resulted to the death of said Arnold
Barcuma, thus performing all the acts of execution,
which would have produced the crime of
"Murder", as a consequence, but nevertheless did
not produce it, by reason of causes independent of
the will of the accused that is, the timely medical
assistance rendered to said Arnold Barcuma.
That an aggravating circumstance of abuse of
superior strength is attendant in the commission of
the offense.9
Ricardo, Armando and Marciano, Jr., assisted by
counsel, were arraigned on September 15, 1994.
They pleaded not guilty to all the charges. Robito
Caballero remained at-large.
Ricardo, Armando and Marciano, Jr. invoked the
defenses of denial and alibi. They adduced
evidence that Ricardo was employed as electrician
in the Office of the City Engineer of San Carlos
City. Armando was a motor cab driver. Robito
resided in H.C. Rigor Street, San Carlos City while
Marciano, Jr. was a resident of Don Juan
Subdivision, San Carlos City and was employed
with the Victorias Milling Corporation.
On August 3, 1994, at 8:00 a.m., Robito left San
Carlos City and went to Bacolod City. Armando
went to the house of his brother Ricardo to help in
the construction of the latter’s house and to take
care of Ricardo’s fighting cocks while he was in
his office. Ricardo arrived home at 8:00 p.m. and
had dinner with his family and Armando.
Momentarily, their sister Mila and their younger
brother Marciano, Jr. arrived in the house of
Ricardo. Marciano, Jr. allegedly was mauled by a
group of men and sustained an abrasion, a
contusion and swelling of the left side of his face.
Ricardo and Armando brought their brother
Marciano, Jr. to the hospital for treatment. On
August 4, 1994, Marciano, Jr. was treated for:
= Linear abrasion (L) scapula region;
= Contusion (R) lower lip lateral side;
= Swelling left face.
No. of days of healing: 5-7 days barring
complication.10
Ricardo, Armando and Marciano, Jr. denied killing
Eugene and assaulting Arnold. They also denied
having any altercation with the victims. They also
denied stabbing Leonilo. They had no idea why
Wilma, Arnold and Myrna would implicate them
for the deaths of Leonilo and Eugene and for the
injuries of Arnold.
After due proceedings, the trial court rendered
judgment on May 7, 2001 finding all the three
accused, now appellants guilty beyond reasonable
doubt as principals of the crimes charged, the
decretal portion of which reads:
WHEREFORE, accused Armando Caballero, alias
"Baby", Ricardo Caballero, alias "Ricky" and
Marciano Caballero, Jr., alias "Jun", having been
found GUILTY beyond reasonable doubt of the
offenses charged them as principals, are hereby
sentenced to suffer:
1. In Criminal Case No. RTC-1217 for the murder
of Leonilo Broce, there being no mitigating
circumstance present, with the attendant
aggravating circumstances of treachery and abuse
of superior strength, the maximum penalty of death
and to pay the heirs of Leonilo Broce the sum of
P75,000.00 as indemnity;
2. In Criminal Case No. RTC-1218, for the murder
of Eugene or Eugenio Tayactac, there being no
mitigating circumstance present, with the attendant
aggravating circumstances of treachery and abuse
of superior strength, the maximum penalty of
death; and to pay the heirs of Eugene Tayactac the
sum of P75,000.00 as indemnity; and
3. In Criminal Case No. RTC-1219, for Frustrated
Murder, for having seriously inflicted injuries upon
the person of Arnold Barcuma which nearly
resulted to his death, there being no mitigating
circumstance present, an imprisonment of twelve
(12) years, as minimum, to seventeen (17) years,
four (4) months and one (1) day, with no award as
to damages, no evidence having been introduced to
establish, the same; and
4. To pay the costs in all three (3) cases.
SO ORDERED.11
In convicting the accused, the trial court found that
all of them conspired to kill Eugene and Leonilo
and cause injuries to Arnold. While the trial court
stated that it was only appellant Armando who
stabbed Eugene, and only the accused Robito who
stabbed Leonilo, however, it concluded that all of
them were equally liable for the deaths of Leonilo
and Eugene and for the injuries of Arnold.
In their Brief, the accused, now appellants assail
the decision of the trial court contending that:
I
THE TRIAL COURT ERRED IN NOT
ACQUITTING ACCUSED-APPELLANTS IN
CRIMINAL CASES NOS. 1217-1219 DESPITE
THE FACT THAT THEIR GUILT WAS NOT
PROVEN BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN
APPRECIATING THE AGGRAVATING
CIRCUMSTANCES OF TREACHERY AND
ABUSE OF SUPERIOR STRENGTH ON THE
ASSUMPTION THAT INDEED ACCUSED-
APPELLANTS KILLED THE VICTIMS.
III
THE TRIAL COURT GRAVELY ERRED IN
IMPOSING THE DEATH PENALTY UPON
ACCUSED-APPELLANTS ON THE
ASSUMPTION THAT INDEED THEY KILLED
THE VICTIMS.12
The Court will delve into and resolve the first two
assignments of errors.
The appellants aver that the prosecution failed to
prove beyond reasonable doubt their respective
guilt for the deaths of Eugene and Leonilo and for
the injuries sustained by Arnold. They assert that
the trial court committed reversible error in
rejecting their defenses of denial and alibi. They
claim that at the time of the incident they were in
the San Carlos Hospital for the treatment of the
injuries of appellant Marciano, Jr.
The appellants are partly correct.
The trial court correctly found that all the
appellants conspired to kill Eugene and assault
Arnold; hence, they are criminally liable for the
death of Eugene and for the injuries sustained by
Arnold. Article 8 of the Revised Penal Code
provides that there is conspiracy when two or more
persons agree to commit a felony and decide to
commit it. Conspiracy is always predominantly
mental in composition because it consists primarily
of a meeting of minds and intent.13 Conspiracy
must be proved with the same quantum of evidence
as the crime itself, that is, by proof beyond
reasonable doubt.14 However, direct proof is not
required. Conspiracy may be proved by
circumstantial evidence. Conspiracy may be
proved through the collective acts of the accused,
before, during and after the commission of a
felony, all the accused aiming at the same object,
one performing one part and another performing
another for the attainment of the same objective,
their acts though apparently independent were in
fact concerted and cooperative, indicating
closeness of personal association, concerted action
and concurrence of sentiments.15 The overt act or
acts of the accused may consist of active
participation in the actual commission of the crime
itself or may consist of moral assistance to his co-
conspirators by moving them to execute or
implement the criminal plan.16 Direct proof of a
person in agreement to commit a crime is not
necessary. It is enough that at the time of the
commission of a crime, all the malefactors had the
same purpose and were united in their execution.17
Once established, all the conspirators are
criminally liable as co-principals regardless of the
degree of participation of each of them for in
contemplation of the law, the act of one is the act
of all.18
Criminal conspiracy must always be founded on
facts, not on mere inferences, conjectures and
presumptions.19 Mere knowledge, acquiescence to
or approval of the act without cooperation or
agreement to cooperate, is not enough to constitute
one party to a conspiracy absent the intentional
participation in the act with a view to the
furtherance of the common objective and
purpose.20 Moreover, one is not criminally liable
for his act done outside the contemplation of the
conspirators. Co-conspirators are criminally liable
only for acts done pursuant to the conspiring on
how and what are the necessary and logic
consequence of the intended crime.21
In this case, when appellant Armando asked
Eugene at the store of Wilma whether the latter
was going to buy something from the store,
Eugene was peeved and remonstrated that he and
Armando had no quarrel between them. Appellant
Armando was likewise irked at the reaction of
Eugene because from the store, appellant Armando
stationed himself by the gate of the Mondragon
Compound near the sari-sari store of Wilma.
Appellants Ricardo, Marciano, Jr. and Robito
joined their brother, appellant Armando at the gate.
Appellant Ricardo and accused Robito were armed
with knives. When Eugene passed by the gate to
the compound, appellant Armando pulled Eugene
to the gate but when the latter resisted, all the
appellants ganged up on Eugene. Appellant
Armando took the wooden support of the
clothesline and hit Eugene with it. Eugene was
stabbed three times on his chest even as he tried to
parry the thrusts. When Arnold rushed to the situs
criminis to pacify the appellants and accused
Robito, appellant Ricardo stabbed him on the left
side of his body. The other appellants and accused
Robito joined appellant Ricardo and ganged up on
Arnold. They stabbed Arnold anew twice on his
forearm. Teresito Mondragon, the father-in-law of
appellant Ricardo intervened and forthwith, all the
appellants, including accused Robito returned to
the Mondragon Compound. Patently, all the
appellants by their simultaneous collective acts
before and after the commission of the crimes were
united in one common objective, to kill Eugene,
and cause injuries to Arnold for trying to intervene
and prevent bloodshed. Hence, all the appellants
are criminally liable for the death of Eugene and
for the injuries of Arnold. It does not matter who
among the appellants stabbed Eugene or inflicted
injuries on Arnold. The act of one is the act of the
others.
However, for the death of Leonilo, the Court
believes that the appellants are not criminally
liable. The prosecution failed to adduce evidence
that the appellants and the accused Robito
conspired to kill Leonilo. The appellants did not
actually see Leonilo rushing out from his house to
the situs criminis. They had no foreknowledge that
the accused Robito would stab Leonilo. There was
no evidence presented by the prosecution to prove
that all the appellants assisted the accused Robito
in killing Leonilo. It must be recalled that Leonilo
rushed out of his house when he saw the
commotion, with the intention of aiding the victim
or pacifying the protagonists. He was, however,
stopped by accused Robito who suddenly stabbed
him on the chest. Leonilo retreated and asked for
help. Wilma Broce testified that only the accused
Robito stabbed Leonilo:
Q After that, what happened next?
A Leonilo Broce came out of his house.
Q Where is the house of Leonilo Broce?
A Still located at Sumakwel.
Q In that case, the very house where Eugene
Tayaktak leaned on when he was ganged up by the
four?
A Yes.
Q What happened after that?
A When he came out from the house and saw
that it was Eugene Tayaktak, he proceeded to
approach them but he was not able to approach
them because he was met by Robit "Bebot"
Caballero and stabbed by Robito Caballero.
Q Was LeoniloBroce (sic) hit when he was
stabbed by Robito Caballero?
A Yes. He immediately ran back and said:
"Tio, help me because I am hit."
INTERPRETER’S (observation)
Witness demonstrating by holding her left armpit.
Q Was Eugene Tayaktak able to escape from
the attach (sic) of the Caballero brothers?
A Not (sic).
Q Now what happened to Eugene Tayaktak?
A He appeared very weak and he was
staggering.
Q Do you know where Eugene Tayaktak
now?
A Already dead.
Q What happened to Leonilo Broce, where is
he now?
A The two of them were (sic) already dead.
Q Now, when did the trouble stop if it
stopped?
A It stopped when Dodong Mondragon
arrived.
Q What did the accused do after the trouble
was stopped?
A They went inside the compound of his (sic)
father.
Q What happened next?
A Nothing happened. Both of them were
brought to the hospital.22
In sum, the trial court committed reversible error in
convicting the appellants of murder for the death of
Leonilo. As this Court held in People v. Flora:23
However, we cannot find Edwin Flora similarly
responsible for the death of Emerita Roma and the
injury of Flor Espinas. The evidence only shows
conspiracy to kill Ireneo Gallarte and no one else.
For acts done outside the contemplation of the
conspirators only the actual perpetrators are liable.
In People v. De la Cerna, 21 SCRA 569, 570
(1967), we held:
"... 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. Here, only Serapio killed (sic) Casiano
Cabizares. The latter was not even going to the aid
of his father Rafael but was fleeing away when
shot."
To conclude, appellant Edwin Flora is guilty
beyond reasonable doubt only of the murder of
Ireneo Gallarte. He has no liability for the death of
Emerita Roma nor the injuries of Flor Espinas
caused by his co-accused Hermogenes Flora.
Crimes Committed by Appellants
In Criminal Case No. RTC-1218, the appellants are
guilty as co-principals by direct participation of
murder, qualified by treachery. In order that
treachery may be considered as a qualifying
circumstance, the prosecution is burdened to prove
that:
.... (1) the employment of means of execution that
give the person attacked no opportunity to defend
himself or to retaliate; and (2) the means of
execution was deliberately or consciously
adopted.24
Even a frontal attack is treacherous if it is sudden
and the victim is unarmed. The essence of
treachery is a swift and unexpected attack on the
unarmed victim.25
In this case, Eugene was unarmed. He had no
inkling that he would be waylaid as he sauntered
on his way to his girlfriend Susana’s house. On the
other hand, appellant Armando was armed with a
wooden pole while appellant Ricardo and accused
Robito were armed with knives. The attack on the
hapless Eugene was swift and unannounced.
Undeniably, the appellants killed Eugene with
treachery.
In Criminal Case No. RTC-1219, the appellants are
guilty of frustrated murder under Article 248 in
relation to Article 6, first paragraph of the Revised
Penal Code which reads:
A felony is consummated when all the elements
necessary for its execution and accomplishment are
present; and it is frustrated when the offender
performs all the acts of execution which would
produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
The essential elements of a frustrated felony are as
follows:
Elements:
1. The offender performs all the acts of execution;
2. All the acts performed would produce the felony
as a consequence;
3. But the felony is not produced;
4. By reason of causes independent of the will of
the perpetrator.26
In the leading case of United States v. Eduave,27
Justice Moreland, speaking for the Court,
distinguished an attempted from frustrated felony.
He said that to be an attempted crime the purpose
of the offender must be thwarted by a foreign force
or agency which intervenes and compels him to
stop prior to the moment when he has performed
all the acts which should produce the crime as a
consequence, which act it is his intention to
perform.
The subjective phase in the commission of a crime
is that portion of the acts constituting the crime
included between the act which begins the
commission of the crime and the last act performed
by the offender which, with prior acts, should
result in the consummated crime. Thereafter, the
phase is objective.
In case of an attempted crime, the offender never
passes the subjective phase in the commission of
the crime. The offender does not arrive at the point
of performing all of the acts of execution which
should produce the crime. He is stopped short of
that point by some cause apart from his voluntary
desistance.
On the other hand, a crime is frustrated when the
offender has performed all the acts of execution
which should result in the consummation of the
crime. The offender has passed the subjective
phase in the commission of the crime.
Subjectively, the crime is complete. Nothing
interrupted the offender while passing through the
subjective phase. He did all that is necessary to
consummate the crime. However, the crime is not
consummated by reason of the intervention of
causes independent of the will of the offender. In
homicide cases, the offender is said to have
performed all the acts of execution if the wound
inflicted on the victim is mortal and could cause
the death of the victim barring medical
intervention or attendance.28
If one inflicts physical injuries on another but the
latter survives, the crime committed is either
consummated physical injuries, if the offender had
no intention to kill the victim or frustrated or
attempted homicide or frustrated murder or
attempted murder if the offender intends to kill the
victim. Intent to kill may be proved by evidence of:
(a) motive; (b) the nature or number of weapons
used in the commission of the crime; (c) the nature
and number of wounds inflicted on the victim; (d)
the manner the crime was committed; and (e)
words uttered by the offender at the time the
injuries are inflicted by him on the victim.
In this case, appellant Armando was armed with a
wooden pole. Appellant Ricardo and accused
Robito used knives. Dr. Quisumbing, who attended
to and operated on Arnold, testified that the stab
wound sustained by Arnold on the left side of his
body was mortal and could have caused his death
were it not for the timely and effective medical
intervention:
Q And how about the size and the depth of the
wounds and how big is each wound and how deep.
A The first wound is 2 cm. and the 2nd is
about 2 inches and the 3rd is 2 inches in the left,
penetrating the chest near the thorax along the
lateral line.
Q So, aside from the 3rd wound there are
wounds which are not really very serious?
A As I said before, the most serious is the 3rd
wound.
Q So even without the other wounds the 3rd
wound - - it could be the cause of the death of the
victim?
A Yes, Sir.29
It cannot be denied that the appellants had the
intention to kill Arnold. The appellants performed
all the acts of execution but the crime was not
consummated because of the timely medical
intervention.
Treachery attended the stabbing of Arnold because
he was unarmed and the attack on him was swift
and sudden. He had no means and there was no
time for him to defend himself. In sum, the
appellants are guilty of frustrated murder.
The appellants’ denial of the crimes charged in
Criminal Case Nos. RTC-1218 and RTC-1219
cannot prevail over Wilma’s and Arnold’s positive
and straightforward testimonies that the appellants
killed Eugene and stabbed Arnold. Moreover,
Wilma and Arnold had no motive to falsely
implicate the appellants for the said crimes; hence,
their testimony must be accorded full probative
weight.30
Equally barren of merit is appellants’ defense of
alibi. Alibi as a defense is inherently weak for it is
easy to fabricate and difficult to disprove. To merit
approbation, the appellants were burdened to prove
with clear and convincing evidence that at the time
the crimes were committed, they were in a place
other than the situs of the crimes such that it was
physically impossible for them to have committed
said crimes.31 The appellants dismally failed in
this respect. They testified that they were at the
house of appellant Ricardo, which was
conveniently near the place where Eugene was
killed and Arnold was assaulted. Moreover, the
records show that Marciano, Jr. was treated for his
superficial injuries on August 4, 1996, a day after
the incident. This belies the claim of appellants
Ricardo and Armando that they were allegedly in
the hospital at the time of the incident.
Penalties Imposable on Appellants
The trial court imposed the death penalty on
appellants in Criminal Case No. RTC-1218 on its
finding that treachery and abuse of superior
strength were attendant in the killing of Eugene.
The Solicitor General does not agree with the trial
court and contends that abuse of superior strength
was absorbed by treachery; hence, should not be
considered as a separate aggravating circumstance
in the imposition of the penalty on the appellants.
The Court agrees with the Solicitor General. Abuse
of superior strength, concurring with treachery is
absorbed by treachery.32
The penalty for murder under Article 248 of the
Revised Penal Code, as amended by Republic Act
7659, is reclusion perpetua to death. Since aside
from the qualified circumstance of treachery, no
other modifying circumstance was attendant in the
commission of the crime, the proper penalty for the
crime is reclusion perpetua conformably with
Article 63 of the Revised Penal Code.
In Criminal Case No. RTC-1219, for frustrated
murder, the Solicitor General contends that the
indeterminate penalty of from 12 years of reclusion
temporal as minimum, to 17 years, 4 months and 1
day of reclusion temporal as maximum, imposed
on the appellants is not correct. The Court agrees
with the Solicitor General. The penalty for
frustrated murder is one degree lower than
reclusion perpetua to death, which is reclusion
temporal.33 The latter penalty has a range of 12
years and 1 day to 20 years. The maximum of the
indeterminate penalty should be taken from
reclusion temporal, the penalty for the crime taking
into account any modifying circumstances in the
commission of the crime. The minimum of the
indeterminate penalty shall be taken from the full
range of prision mayor which is one degree lower
than reclusion temporal. Since there is no
modifying circumstance in the commission of
frustrated murder, the appellants should be meted
an indeterminate penalty of from nine (9) years and
four (4) months of prision mayor in its medium
period as minimum to seventeen (17) years and
four (4) months of reclusion temporal in its
medium period, as maximum.
Civil Liabilities of Appellants
The trial court ordered the appellants in Criminal
Case No. RTC-1218 to pay in solidum the heirs of
the victim Eugene Tayactac, the amount of
P75,000 by way of indemnity. The trial court did
not award moral damages to said heirs. This is
erroneous. Since the penalty imposed on the
appellants is reclusion perpetua, the civil
indemnity should be only P50,000. The heirs of the
victim should also be awarded the amount of
P50,000 as moral damages.34
In Criminal Case No. RTC-1219, the trial court did
not award moral damages to the victim Arnold
Barcuma on its finding that the prosecution failed
to adduce any evidence to prove said damages. The
Court disagrees with the trial court. The victim
Arnold Barcuma himself testified on his injuries.35
He is entitled to moral damages in the amount of
P25,000.36 Having suffered injuries and
undergone medical treatment he is, as well entitled
to actual damages, which in the absence of
evidence would, nevertheless, entitle him to an
award of temperate or moderate damages, herein
fixed at P10,000.
The Verdict of the Court
IN LIGHT OF ALL THE FOREGOING, the
Decision of the Regional Trial Court of San Carlos
City (Negros Occidental), Branch 57, in Criminal
Cases Nos. RTC-1217 up to RTC-1219 is
AFFIRMED with the following
MODIFICATIONS:
1. In Criminal Case No. RTC-1217, the Court,
finding the appellants not guilty of the crime
charged for failure of the prosecution to prove their
guilt beyond reasonable doubt, REVERSES the
judgment of the trial court and ACQUITS them of
the said charge.
2. In Criminal Case No. RTC-1218, the appellants
are found guilty beyond reasonable doubt of
murder under Article 248 of the Revised Penal
Code, qualified by treachery, and are sentenced to
suffer the penalty of reclusion perpetua and
ordered to pay in solidum the heirs of the victim
Eugene Tayactac, the amounts of P50,000 as civil
indemnity and P50,000 as moral damages.
3. In Criminal Case No. RTC-1219, the appellants
are found guilty beyond reasonable doubt of
frustrated murder under Article 248 in relation to
Article 6, first paragraph of the Revised Penal
Code and are hereby sentenced to suffer an
indeterminate penalty of from nine (9) years and
four (4) months of prision mayor in its medium
period, as minimum, to seventeen (17) years and
four (4) months of reclusion temporal in its
medium period, as maximum. The appellants are
hereby ordered to pay in solidum to the victim
Arnold Barcuma the amount of P25,000 as moral
damages and P10,000 as temperate or moderate
damages.
Costs de oficio.
SO ORDERED.
[G.R. No. 165483. September 12, 2006.]
RUJJERIC Z. PALAGANAS,
1 petitioner, vs.
PEOPLE OF
THE
PHILIPPINES,
respondent.
DECISION
CHICO-NAZARIO, J p:
For what is a man, what has he got?
If not himself, then he has
naught.
To say the things he truly
feels;
And not the words of one who
kneels.
The record shows I took the
blows —
And did it my way!
CRIMINAL CASE NO. U-9609
The song evokes the bitterest passions.
This is not the first time the song "My Way" 2 has
triggered violent behavior resulting in people
coming to blows. In the case at bar, the few lines
of the song depicted what came to pass when the
victims and the aggressors tried to outdo each other
in their rendition of the song.
In this Petition for Review on Certiorari
3 under Rule 45 of the Revised Rules of Court,
petitioner Rujjeric Z. Palaganas prays for the
reversal of the Decision of the Court of Appeals in
CA-G.R. CR No. 22689 dated 30 September 2004,
4 affirming with modification the Decision of the
Regional Trial Court (RTC), Branch 46, of
Urdaneta, Pangasinan, in Criminal Cases No. U-
9608, U-9609, and U-9610 and U-9634, dated 28
October 1998, 5 finding petitioner guilty beyond
reasonable doubt of the crime of Homicide under
Article 249 of the Revised Penal Code, and two (2)
counts of Frustrated Homicide under Article 249 in
relation to Articles 6 and 50 of the same Code.
On 21 April 1998, petitioner and his
older brother, Ferdinand Z. Palaganas (Ferdinand),
were charged under four (4) separate Informations
6 for two (2) counts of Frustrated Murder, one (1)
count of Murder, and one (1) count for Violation of
COMELEC Resolution No. 2958 7 relative to
Article 22, Section 261, of the Omnibus Election
Code, 8 allegedly committed as follows:
CRIMINAL CASE NO. U-9608
That on or about January 16,
1998, in the evening at Poblacion,
Manaoag, Pangasinan and within the
jurisdiction of this Honorable Court, the
above-named accused armed with an
CRIMINAL CASE NO. U-9610
unlicensed firearm, with intent to kill,
treachery and evident premeditation,
conspiring together, did then and there
willfully, unlawfully and feloniously
shoot SERVILLANO FERRER, JR. y
Juanatas, inflicting upon him "gunshot
wound penetrating perforating abdomen,
urinary bladder, rectum bullet sacral
region," the accused having thus
performed all the acts of execution which
would have produced the crime of
Murder as a consequence, but which
nevertheless, did not produce it by reason
of the causes independent of the will of
the accused and that is due to the timely
medical assistance rendered to said
Servillano J. Ferrer, Jr. which prevented
his death, to his damage and prejudice.
CONTRARY to Art. 248
in relation with Arts. 6 and 50, all of
the Revised Penal Code, as amended.
That on or about
January 16, 1998, in the evening at
Poblacion, Manaoag, Pangasinan
and within the jurisdiction of this
Honorable Court, the above-named
accused armed with an unlicensed
firearm, with intent to kill,
treachery and evident
premeditation, conspiring together,
did then and there willfully,
unlawfully and feloniously shoot
MICHAEL FERRER alias
"Boying Ferrer", inflicting upon
him gunshot wound on the right
shoulder, the accused having thus
performed all the acts of execution
which would have produced the
crime of murder as a consequence,
but which nevertheless, did not
produce it by reason of the causes
independent of the will of the
accused and that is due to the
medical assistance rendered to said
Michael "Boying" Ferrer which
prevented his death, to his damage
and prejudice.
CONTRARY to Art.
248 in relation with Arts. 6 and
50, all of the Revised Penal
Code, as amended.
 That on or about January 16,
1998, in the evening at Poblacion,
Manaoag, Pangasinan and within the
jurisdiction of this Honorable Court, the
above-named accused armed with an
unlicensed firearm, with intent to kill,
treachery and evident premeditation,
conspiring together, did then and there
willfully, unlawfully and feloniously
shoot MELTON FERRER alias "TONY
FERRER", inflicting upon him mortal
gunshot wounds in the head and right
thigh which caused the instantaneous
death of said Melton "Tony" Ferrer, to
the damage and prejudice of his heirs.
CONT
RARY to Art. 248
of the Revised
Penal Code, as
amended by R.A.
7659.
CRIMINAL CASE NO. U-9634
That on or about January
16, 1998 which is within the election
period at Poblacion, Manaoag,
Pangasinan, and within the
jurisdiction of this Honorable Court,
the above-named accused did then
and there willfully, unlawfully and
feloniously bear and carry one (1)
caliber .38 without first securing the
necessary permit/license to do the
same.
CONTRARY to COMELEC
RES. 2958 in relation with SEC. 261 of
the OMNIBUS ELECTION CODE, as
amended. 9 (Underscoring supplied.)
When arraigned on separate dates, 10
petitioner and Ferdinand entered separate pleas of
"Not Guilty." Upon motion of Ferdinand, 11 the
four cases were consolidated and were assigned to
Branch 46 of the RTC in Urdaneta, Pangasinan. 12
The factual antecedents as viewed by
the prosecution, are summarized in the Comment
dated 18 April 2005 of the Office of the Solicitor
General, 13 to wit:
On January 16, 1998, around 8:00
in the evening, brothers Servillano, [Melton]
and Michael, all surnamed Ferrer were
having a drinking spree in their house
because [Melton], who was already living in
San Fernando, La Union, visited his three
brothers and mother at their house in Sitio
Baloking, Poblacion, Manaoag, Pangasinan.
At 9:45 in the evening, the three brothers
decided to proceed to Tidbits Videoke bar
located at the corner of Malvar and Rizal
Streets, Poblacion, Manaoag to continue
their drinking spree and to sing. Inside the
karaoke bar, they were having a good time,
singing and drinking beer.
Thereafter, at 10:30 in the
evening, Jaime Palaganas arrived
together with Ferdinand Palaganas and
Virgilio Bautista. At that time, only the
Ferrer brothers were the customers in the
bar. The two groups occupied separate
tables. Later, when Jaime Palaganas was
singing, [Melton] Ferrer sang along with
him as he was familiar with the song [My
Way]. Jaime however, resented this and
went near the table of the Ferrer brothers
and said in Pangasinan dialect "As if you
are tough guys." Jaime further said "You
are already insulting me in that way."
Then, Jaime struck Servillano Ferrer with
the microphone, hitting the back of his
head. A rumble ensued between the
Ferrer brothers on the one hand, and the
Palaganases, on the other hand. Virgilio
Bautista did not join the fray as he left
the place. During the rumble, Ferdinand
went out of the bar. He was however
pursued by Michael. When Servillano
saw Michael, he also went out and told
the latter not to follow Ferdinand.
Servillano and Michael then went back
inside the bar and continued their fight
with Jaime.
Meantime, Edith Palaganas, sister
of Jaime and the owner of the bar, arrived
and pacified them. Servillano noticed that
his wristwatch was missing. Unable to locate
the watch inside the bar, the Ferrer brothers
went outside. They saw Ferdinand about
eight (8) meters away standing at Rizal
Street. Ferdinand was pointing at them and
said to his companion, later identified as
petitioner [Rujjeric] Palaganas, "Oraratan
paltog mo lara", meaning "They are the
ones, shoot them." Petitioner then shot them
hitting Servillano first at the left side of the
abdomen, causing him to fall on the ground,
and followed by [Melton] who also fell to
the ground. When Servillano noticed that
[Melton] was no longer moving, he told
Michael "Bato, bato." Michael picked up
some stones and threw them at petitioner
and Ferdinand. The latter then left the place.
Afterwards, the police officers came and the
Ferrer brothers were brought to the Manaoag
Hospital and later to Villaflor Hospital in
Dagupan. Servillano later discovered that
 [Melton] was fatally hit in the head while
Michael was hit in the right shoulder.
On the other hand, the defense, in its
Appellant's Brief dated 3 December 1999, 14
asserted the following set of facts:
On January 16, 1998, at
around 11:00 in the evening, after a
drinking session at their house, the
brothers Melton (Tony), Servillano
(Junior) and Michael (Boying), all
surnamed Ferrer, occupied a table
inside the Tidbits Café and Videoke
Bar and started drinking and singing.
About thirty minutes later, Jaime
Palaganas along with his nephew
Ferdinand (Apo) and friend Virgilio
Bautista arrived at the bar and
occupied a table near that of the
Ferrers'.
After the Ferrers' turn in
singing, the microphone was handed over
to Jaime Palaganas, who then started to
sing. On his third song [My Way], Jaime
was joined in his singing by Tony Ferrer,
who sang loudly and in an obviously
mocking manner. This infuriated Jaime,
who then accosted Tony, saying, "You
are already insulting us." The statement
resulted in a free for all fight between the
Ferrers', on one hand, and the
Palaganases on the other. Jaime was
mauled and Ferdinand, was hit on the
face and was chased outside of the bar by
Junior and Boying Ferrer.
Ferdinand then ran towards
the house of the appellant Rujjeric
Palaganas, his brother, and sought the
help of the latter. Rujjeric, stirred from
his sleep by his brother's shouts, went out
of his house and, noticing that the van of
his uncle was in front of the Tidbits
Videoke Bar, proceeded to that place.
Before reaching the bar, however, he was
suddenly stoned by the Ferrer brothers
and was hit on different parts of his body,
so he turned around and struggled to run
towards his house. He then met his
brother, Ferdinand, going towards the
bar, so he tugged him and urged him to
run towards the opposite direction as the
Ferrer brothers continued pelting them
with large stones. Rujjeric then noticed
that Ferdinand was carrying a gun, and,
on instinct, grabbed the gun from the
latter, faced the Ferrer brothers and fired
one shot in the air to force the brothers to
retreat. Much to his surprise, however,
the Ferrer brothers continued throwing
stones and when (sic) the appellant was
again hit several times. Unable to bear
the pain, he closed his eyes and pulled
the trigger.
On 28 October 1998, the trial
court rendered its Decision finding
petitioner guilty only of the crime of
Homicide and two (2) counts of
Frustrated Homicide. 15 He was,
however, acquitted of the charge of
Violation of COMELEC Resolution No.
2958 in relation to Section 261 of the
Omnibus Election Code. 16 On the other
hand, Ferdinand was acquitted of all the
charges against him. 17
In holding that petitioner is liable for the
crimes of Homicide and Frustrated Homicide but
not for Murder and Frustrated Murder, the trial
court explained that there was no conspiracy
between petitioner and Ferdinand in killing Melton
and wounding Servillano and Michael. 18
According to the trial court, the mere fact that
Ferdinand "pointed" to where the Ferrer brothers
were and uttered to petitioner "Araratan, paltog mo
lara!" (They are the ones, shoot them!), does not in
itself connote common design or unity of purpose
to kill. It also took note of the fact that petitioner
was never a participant in the rumble inside the
Tidbits Cafe Videoke Bar (videoke bar) on the
night of 16 January 1998. He was merely called by
Ferdinand to rescue their uncle, Jaime, who was
being assaulted by the Ferrer brothers. It further
stated that the shooting was instantaneous and
without any prior plan or agreement with
Ferdinand to execute the same. It found that
petitioner is solely liable for killing Melton and for
wounding Servillano and Michael, and that
Ferdinand is not criminally responsible for the act
of petitioner.
Further, it declared that there was no
treachery that will qualify the crimes as murder
and frustrated murder since the Ferrer brothers
were given the chance to defend themselves during
the shooting incident by stoning the petitioner and
Ferdinand. 19 It reasoned that the sudden and
unexpected attack, without the slightest
provocation on the part of the victims, was absent.
In addition, it ratiocinated that there was no
evident premeditation as there was no sufficient
period of time that lapsed from the point where
Ferdinand called the petitioner for help up to the
point of the shooting of the Ferrer brothers. 20
Petitioner was sleeping at his house at the time he
heard Ferdinand calling him for help. Immediately,
petitioner, still clad in pajama and sleeveless shirt,
went out of his room to meet Ferdinand.
Thereafter, both petitioner and Ferdinand went to
the videoke bar where they met the Ferrer brothers
and, shortly afterwards, the shooting ensued. In
other words, according to the trial court, the
sequence of the events are so fast that it is
improbable for the petitioner to have ample time
and opportunity to then plan and organize the
shooting.
Corollarily, it also stated that petitioner
cannot successfully invoke self-defense since there
was no actual or imminent danger to his life at the
time he and Ferdinand saw the Ferrer brothers
outside the videoke bar. 21 It noted that when
petitioner and Ferdinand saw the Ferrer brothers
outside the videoke bar, the latter were not carrying
any weapon. Petitioner then was free to run or take
cover when the Ferrer brothers started pelting them
with stones. Petitioner, however, opted to shoot the
Ferrer brothers. It also stated that the use by
petitioner of a gun was not a reasonable means to
prevent the attack of the Ferrer brothers since the
latter were only equipped with stones, and that the
gun was deadlier compared to stones. Moreover, it
also found that petitioner used an unlicensed
firearm in shooting the Ferrer brothers. 22
As regards the Violation of COMELEC
Resolution No. 2958, in relation to Section 261 of
the Omnibus Election Code, the trial court
acquitted the petitioner of the offense as his use
and possession of a gun was not for the purpose of
disrupting election activities. 23 In conclusion, the
trial court held:
WHER
EFORE,
JUDGMENT is
hereby rendered
as follows:
2. Under CRIM. CASE NO. U-9608,
[Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt
of the crime of FRUSTRATED
HOMICIDE (Not Frustrated Murder),
with the use of an unlicensed firearm, the
Court sentences him to suffer the penalty
of Prision Mayor in its maximum period
or 12 years of imprisonment and to pay
Servillano Ferrer the sum of P163,569.90
for his medical expenses and P50,000.00
for exemplary damages;
Ferdinand Palaganas is ACQUITTED for
failure of the prosecution to prove
conspiracy and likewise, for failure to
prove the guilt of Ferdinand Palaganas
beyond reasonable doubt.
3. Under CRIM. CASE NO. U-9609,
[Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable
doubt of the crime of FRUSTRATED
HOMICIDE (Not Frustrated Murder),
with the use of an unlicensed firearm,
the Court sentences him to suffer the
penalty of Prision Mayor in its
maximum period or 12 years of
imprisonment; and to pay Michael
Ferrer the sum of P2,259.35 for his
medical expenses and P50,000.00 for
exemplary damages;

1. Under CRIM. CASE NO. U-9610,

[Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt
of the crime of HOMICIDE (Not Ferdinand Palaganas is
Murder) with the use of an unlicensed ACQUI
firearm. The penalty imposable is in its TTED
maximum period which is 20 years. The for
Court sentences [Rujjeric] Palaganas to failure
suffer the penalty of Reclusion Temporal of the
in its maximum period or 20 years of prosecu
imprisonment; and to pay the heirs of tion to
[MELTON] Ferrer the sum of P7,791.50 prove
as actual medical expenses of conspir
[MELTON] Ferrer; P500,000.00 as acy and
moral damages representing unearned likewis
income of [MELTON]; P50,000.00 for e, for
the death of [MELTON]; P50,000.00 for failure
exemplary damages and P100,000.00 for to
burial and funeral expenses. prove
the
guilt of
Ferdina
nd
Ferdinand Palaganas is hereby ACQUITTED Palagan
for failure of the prosecution to prove as
conspiracy and likewise, for failure to prove beyond
the guilt of Ferdinand Palaganas beyond reasona
reasonable doubt. ble
doubt.
Ordering accused [Rujjeric] us
Palagan Electio
as to n Code,
pay the
Mrs. Court
Elena ACQUI
Ferrer, TS
the [RUJJE
mother RIC]
of the PALA
Ferrer GANA
brother S. 24
s, the
amount
of
P100,0
00.00 Aggrieved, the petitioner appealed the
as foregoing Decision of the RTC dated 28 October
attorne 1998, before the Court of Appeals. In its Decision
y's fees dated 30 September 2004, the Court of Appeals
in affirmed with modifications the assailed RTC
CRIM. Decision. In modifying the Decision of the trial
CASES court, the appellate court held that the mitigating
NOS. circumstance of voluntary surrender under Article
U- 13, No. 7, of the Revised Penal Code should be
9608, appreciated in favor of petitioner since the latter,
U- accompanied by his counsel, voluntarily appeared
9609, before the trial court, even prior to its issuance of a
U- warrant of arrest against him. 25 It also stated that
9610. the Indeterminate Sentence Law should be applied
in imposing the penalty upon the petitioner. 26 The
dispositive portion of the Court of Appeals'
Decision reads:
WHER
4. Under CRIM. CASE NO. U- EFORE, the
9634, judgment of
for conviction is
failure hereby
of the AFFIRMED,
prosecu subject to the
tion to MODIFICATION
prove that the penalty to
the be imposed for the
guilt of crimes which the
[Rujjeri appellant
c] committed are as
Palagan follows:
as
beyond
reasona
ble
doubt (1) For
of the Homicide (under
crime Criminal Case No.
of U-9610), the
Violati appellant is
on of ordered to suffer
COME imprisonment of
LEC ten (10) years of
Resolut prision mayor as
ion No. minimum to
2958 in seventeen (17)
relation years and four (4)
with months of
Section reclusion temporal
261 of as maximum.
the Appellant is also
Omnib ordered to pay the
heirs of Melton moral damages in
Ferrer civil the amount of
indemnity in the P30,000.00. 27
amount of
P50,000.00, moral
damages in the
amount of
P50,000.00 On 16 November 2004, petitioner
without need of lodged the instant Petition for Review before this
proof and actual Court on the basis of the following arguments:
damages in the I.
amount of
P43,556.00.

THE HONORABLE COURT

OF APPEALS
(2) For ERRED IN
Frustrated AFFIRMING
Homicide (under THE
Criminal Case No. JUDGMENT OF
U-9609), the CONVICTION
appellant is OF THE TRIAL
hereby ordered to COURT.
suffer
imprisonment of
four (4) years and
two (2) months of
prision correcional II.
as minimum to ten
(10) years of
prision mayor as
maximum. THE HONORABLE COURT
Appellant is also OF APPEALS
ordered to pay ERRED IN NOT
Michael Ferrer ACQUITTING
actual damages in ACCUSED-
the amount of APPELLANT ON
P2,259.35 and THE GROUND
moral damages in OF LAWFUL
the amount of SELF-DEFENSE.
P30,000.00. 28

(3) For Anent the first issue, petitioner argued

Frustrated that all the elements of a valid self-defense are
Homicide (under present in the instant case and, thus, his acquittal
Criminal Case No. on all the charges is proper; that when he fired his
U-9608), the gun on that fateful night, he was then a victim of
appellant is an unlawful aggression perpetrated by the Ferrer
hereby penalized brothers; that he, in fact, sustained an injury in his
with left leg and left shoulder caused by the stones
imprisonment of thrown by the Ferrer brothers; that the appellate
four (4) years and court failed to consider a material evidence
two (2) months of described as "Exhibit O"; that "Exhibit O" should
prision correcional have been given due weight since it shows that
as minimum to ten there was slug embedded on the sawali wall near
(10) years of the sign "Tidbits Café and Videoke Bar"; that the
prision mayor as height from which the slug was taken was about
maximum. seven feet from the ground; that if it was true that
Appellant is also petitioner and Ferdinand were waiting for the
ordered to pay Ferrer brothers outside the videoke bar in order to
Servillano Ferrer shoot them, then the trajectory of the bullets would
actual damages in have been either straight or downward and not
the amount of upward considering that the petitioner and the
P163,569.90 and Ferrer brothers were about the same height (5'6"-
5'8"); that the slug found on the wall was, in fact,
the "warning shot" fired by the petitioner; and, that
if this exhibit was properly appreciated by the trial
court, petitioner would be acquitted of all the
charges. 29
Moreover, petitioner contended that the
warning shot proved that that the Ferrer brothers
were the unlawful aggressors since there would
have been no occasion for the petitioner to fire a
warning shot if the Ferrer brothers did not stone
him; that the testimony of Michael in the trial court
proved that it was the Ferrer brothers who
provoked petitioner to shoot them; and that the
Ferrer brothers pelted them with stones even after
the "warning shot." 30
Petitioner's contention must fail.
Article 11, paragraph (1), of the Revised
Penal Code provides for the elements and/or
requisites in order that a plea of self-defense may
be validly considered in absolving a person from
criminal liability, viz:
ART.
11. Justifying
circumstances. —
The following do
not incur any
criminal liability:
1. Any
one who acts in
defense of his
person or rights,
provided that the
following
circumstances
concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means
employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of
the person defending himself. . . . .
As an element of self-defense, unlawful
aggression refers to an assault or attack, or a threat
thereof in an imminent and immediate manner,
which places the defendant's life in actual peril. 31
It is an act positively strong showing the wrongful
intent of the aggressor and not merely a threatening
or intimidating attitude. 32 It is also described as a
sudden and unprovoked attack of immediate and
imminent kind to the life, safety or rights of the
person attacked. 33
There is an unlawful aggression on the
part of the victim when he puts in actual or
imminent peril the life, limb, or right of the person
invoking self-defense. There must be actual
physical force or actual use of weapon. 34 In order
to constitute unlawful aggression, the person
attacked must be confronted by a real threat on his
life and limb; and the peril sought to be avoided is
imminent and actual, not merely imaginary. 35
In the case at bar, it is clear that there
was no unlawful aggression on the part of the
Ferrer brothers that justified the act of petitioner in
shooting them. There were no actual or imminent
danger to the lives of petitioner and Ferdinand
when they proceeded and arrived at the videoke
bar and saw thereat the Ferrer brothers. It appears
that the Ferrer brothers then were merely standing
outside the videoke bar and were not carrying any
weapon when the petitioner arrived with his
brother Ferdinand and started firing his gun. 36
Assuming, arguendo, that the Ferrer
brothers had provoked the petitioner to shoot them
by pelting the latter with stones, the shooting of the
Ferrer brothers is still unjustified. When the Ferrer
brothers started throwing stones, petitioner was not
in a state of actual or imminent danger considering
the wide distance (4-5 meters) of the latter from the
location of the former. 37 Petitioner was not
cornered nor trapped in a specific area such that he
had no way out, nor was his back against the wall.
He was still capable of avoiding the stones by
running away or by taking cover. He could have
also called or proceeded to the proper authorities
for help. Indeed, petitioner had several options in
avoiding dangers to his life other than confronting
the Ferrer brothers with a gun.
The fact that petitioner sustained
injuries in his left leg and left shoulder, allegedly
caused by the stones thrown by the Ferrer brothers,
does not signify that he was a victim of unlawful
aggression or that he acted in self-defense. 38
There is no evidence to show that his wounds were
so serious and severe. The superficiality of the
injuries sustained by the petitioner is no indication
that his life and limb were in actual peril. 39
Petitioner's assertion that, despite the
fact that he fired a warning shot, the Ferrer
brothers continued to pelt him with stones, 40 will
not matter exonerate him from criminal liability.
Firing a warning shot was not the last and only
option he had in order to avoid the stones thrown
by the Ferrer brothers. As stated earlier, he could
have run away, or taken cover, or proceeded to the
proper authorities for help. Petitioner, however,
opted to shoot the Ferrer brothers.
It is significant to note that the shooting
resulted in the death of Melton, and wounding of
Servillano and Michael. With regard to Melton, a
bullet hit his right thigh, and another bullet hit his
head which caused his instant death. 41 As regards
Servillano, a bullet penetrated two of his vital
organs, namely, the large intestine and urinary
bladder. 42 He underwent two (2) surgeries in
order to survive and fully recover. 43 Michael, on
the other hand, sustained a gunshot wound on the
right shoulder. 44 It must also be noted that the
Ferrer brothers were shot near the videoke bar,
which contradict petitioner's claim he was chased
by the Ferrer brothers. Given the foregoing
circumstances, it is difficult to believe that the
Ferrer brothers were the unlawful aggressors. As
correctly observed by the prosecution, if the
petitioner shot the Ferrer brothers just to defend
himself, it defies reason why he had to shoot the
victims at the vital portions of their body, which
even led to the death of Melton who was shot at his
head. 45 It is an oft-repeated rule that the nature
and number of wounds inflicted by the accused are conclusive and binding upon this Court. 54 In the
constantly and unremittingly considered important present case, we find no compelling reason to
indicia to disprove a plea of self-defense. 46 deviate from their findings. Verily, petitioner failed
Let it not be forgotten that unlawful to prove by clear and convincing evidence that he
aggression is a primordial element in self-defense. is entitled to an acquittal on the ground of lawful
47 It is an essential and indispensable requisite, for self-defense.
without unlawful aggression on the part of the On another point, while we agree with
victim, there can be, in a jural sense, no complete the trial court and the Court of Appeals that
or incomplete self-defense. 48 Without unlawful petitioner is guilty of the crime of Homicide for the
aggression, self-defense will not have a leg to death of Melton in Criminal Case No. U-9610, and
stand on and this justifying circumstance cannot Frustrated Homicide for the serious injuries
and will not be appreciated, even if the other sustained by Servillano in Criminal Case No. U-
elements are present. 49 To our mind, unlawful 9608, we do not, however, concur in their ruling
aggression, as an element of self-defense, is that petitioner is guilty of the crime of Frustrated
wanting in the instant case. Homicide as regards to Michael in Criminal Case
The second element of self-defense No. U-9609. We hold that petitioner therein is
requires that the means employed by the person guilty only of the crime of Attempted Homicide.
defending himself must be reasonably necessary to Article 6 of the Revised Penal Code
prevent or repel the unlawful aggression of the states and defines the stages of a felony in the
victim. The reasonableness of the means employed following manner:
may take into account the weapons, the physical ART.
condition of the parties and other circumstances 6. Consummated,
showing that there is a rational equivalence frustrated, and
between the means of attack and the defense. 50 In attempted
the case at bar, the petitioner's act of shooting the felonies. —
Ferrer brothers was not a reasonable and necessary Consummated
means of repelling the aggression allegedly felonies, as well
initiated by the Ferrer brothers. As aptly stated by as those which are
the trial court, petitioner's gun was far deadlier frustrated and
compared to the stones thrown by the Ferrer attempted, are
brothers. 51 punishable.
Moreover, we stated earlier that when
the Ferrer brothers allegedly threw stones at the
petitioner, the latter had other less harmful options
than to shoot the Ferrer brothers. Such act failed to
pass the test of reasonableness of the means A
employed in preventing or repelling an unlawful felony is
aggression. consummated
With regard to the second issue, when all the
petitioner asserts that the Court of Appeals erred in elements
not acquitting him on the ground of lawful self- necessary for the
defense. for its execution
Petitioner's argument is bereft of merit. and
In resolving criminal cases where the accomplishment
accused invokes self-defense to escape criminal are present; and it
liability, this Court consistently held that where an is frustrated when
accused admits killing the victim but invokes self- the offender
defense, it is incumbent upon the accused to prove performs all the
by clear and convincing evidence that he acted in acts of execution
self-defense. 52 As the burden of evidence is which would
shifted on the accused to prove all the elements of produce the felony
self-defense, he must rely on the strength of his as a consequence
own evidence and not on the weakness of the but which,
prosecution. 53 nevertheless, do
As we have already found, there was no not produce it by
unlawful aggression on the part of the Ferrer reason or causes
brothers which justified the act of petitioner in independent of the
shooting them. We also ruled that even if the will of the
Ferrer brothers provoked the petitioner to shoot perpetrator.
them, the latter's use of a gun was not a reasonable
means of repelling the act of the Ferrer brothers in
throwing stones. It must also be emphasized at this
point that both the trial court and the appellate
court found that petitioner failed to established by
clear and convincing evidence his plea of self-
defense. In this regard, it is settled that when the
trial court's findings have been affirmed by the
appellate court, said findings are generally
 There of
is an attempt when executi
the offender on.
commences the
commission of a
felony directly by
overt acts, and
does not perform 2.) In frustrated felony, the
all the acts of reason
execution which for the
should produce non-
the felony by accomp
reason of some lishmen
cause or accident t of the
other than his own crime
spontaneous is some
desistance (Italics cause
supplied). indepen
dent of
the will
of the
perpetr
Based on the foregoing provision, the ator; on
distinctions between frustrated and attempted the
felony are summarized as follows: other
1.) In frustrated felony, the hand,
offende in
r has attempt
perfor ed
med all felony,
the acts the
of reason
executi for the
on non-
which fulfillm
should ent of
produc the
e the crime
felony is a
as a cause
conseq or
uence; acciden
wherea t other
s in than
attempt the
ed offende
felony, r's own
the spontan
offende eous
r desista
merely nce.
comme
nces
the
commis
sion of In addition to these distinctions, we
a have ruled in several cases that when the accused
felony intended to kill his victim, as manifested by his use
directly of a deadly weapon in his assault, and his victim
by sustained fatal or mortal wound/s but did not die
overt because of timely medical assistance, the crime
acts committed is frustrated murder or frustrated
and homicide depending on whether or not any of the
does qualifying circumstances under Article 249 of the
not Revised Penal Code are present. 55 However, if
perfor the wound/s sustained by the victim in such a case
m all were not fatal or mortal, then the crime committed
the acts is only attempted murder or attempted homicide.
56 If there was no intent to kill on the part of the
accused and the wound/s sustained by the victim
were not fatal, the crime committed may be
serious, less serious or slight physical injury. 57
Based on the medical certificate of
Michael, as well as the testimony of the physician
who diagnosed and treated Michael, the latter was
admitted and treated at the Dagupan Doctors-
Villaflor Memorial Hospital for a single gunshot
wound in his right shoulder caused by the shooting
of petitioner. 58 It was also stated in his medical
certificate that he was discharged on the same day
he was admitted and that the treatment duration for
such wound would be for six to eight days only. 59
Given these set of undisputed facts, it is clear that
the gunshot wound sustained by Michael in his
right shoulder was not fatal or mortal since the
treatment period for his wound was short and he
was discharged from the hospital on the same day
he was admitted therein. Therefore, petitioner is
liable only for the crime of attempted homicide as
regards Michael in Criminal Case No. U-9609.
With regard to the appreciation of the
aggravating circumstance of use of an unlicensed
firearm, we agree with the trial court and the
appellate court that the same must be applied
against petitioner in the instant case since the same
was alleged in the informations filed against him
before the RTC and proven during the trial.
However, such must be considered as a special
aggravating circumstance, and not a generic
aggravating circumstance.
Generic aggravating circumstances are
those that generally apply to all crimes such as
those mentioned in Article 14, paragraphs No. 1, 2,
3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised
Penal Code. It has the effect of increasing the
penalty for the crime to its maximum period, but it
cannot increase the same to the next higher degree.
It must always be alleged and charged in the
information, and must be proven during the trial in
order to be appreciated. 60 Moreover, it can be
offset by an ordinary mitigating circumstance.
On the other hand, special aggravating
circumstances are those which arise under special
conditions to increase the penalty for the offense to
its maximum period, but the same cannot increase
the penalty to the next higher degree. Examples are
quasi-recidivism under Article 160 and complex
crimes under Article 48 of the Revised Penal Code.
It does not change the character of the offense
charged. 61 It must always be alleged and charged
in the information, and must be proven during the
trial in order to be appreciated. 62 Moreover, it
cannot be offset by an ordinary mitigating
circumstance.
It is clear from the foregoing that the
meaning and effect of generic and special
aggravating circumstances are exactly the same
except that in case of generic aggravating, the same
CAN be offset by an ordinary mitigating
circumstance whereas in the case of special
aggravating circumstance, it CANNOT be offset
by an ordinary mitigating circumstance.
Aside from the aggravating
circumstances abovementioned, there is also an
aggravating circumstance provided for under
Presidential Decree No. 1866, 63 as amended by
Republic Act No. 8294, 64 which is a special law.
Its pertinent provision states:
If
homicide or
murder is
committed with
the use of an
unlicensed
firearm, such use
of an unlicensed
firearm shall be
considered as an
aggravating
circumstance.
In interpreting the same provision, the
trial court reasoned that such provision is "silent as
to whether it is generic or qualifying." 65 Thus, it
ruled that "when the law is silent, the same must be
interpreted in favor of the accused." 66 Since a
generic aggravating circumstance is more
favorable to petitioner compared to a qualifying
aggravating circumstance, as the latter changes the
nature of the crime and increase the penalty thereof
by degrees, the trial court proceeded to declare that
the use of an unlicensed firearm by the petitioner is
to be considered only as a generic aggravating
circumstance. 67 This interpretation is erroneous
since we already held in several cases that with the
passage of Republic Act No. 8294 on 6 June 1997,
the use of an unlicensed firearm in murder or
homicide is now considered as a SPECIAL
aggravating circumstance and not a generic
aggravating circumstance. 68 Republic Act No.
8294 applies to the instant case since it took effect
before the commission of the crimes in 21 April
1998. Therefore, the use of an unlicensed firearm
by the petitioner in the instant case should be
designated and appreciated as a SPECIAL
aggravating circumstance and not merely a generic
aggravating circumstance.
As was previously established, a special
aggravating circumstance cannot be offset by an
ordinary mitigating circumstance. Voluntary
surrender of petitioner in this case is merely an
ordinary mitigating circumstance. Thus, it cannot
offset the special aggravating circumstance of use
of unlicensed firearm. In accordance with Article
64, paragraph 3 of the Revised Penal Code, the
penalty imposable on petitioner should be in its
maximum period. 69
As regards the civil liability of
petitioner, we deem it necessary to modify the
award of damages given by both courts.
In Criminal Case No. U-9610 for
Homicide, we agree with both courts that the
proper amount of civil indemnity is P50,000.00,
and that the proper amount for moral damages is
P50,000.00 pursuant to prevailing jurisprudence.
70 However, based on the receipts for hospital,
medicine, funeral and burial expenses on record,
and upon computation of the same, the proper
amount of actual damages should be P42,374.18,
instead of P43,556.00. Actual damages for loss of
earning capacity cannot be awarded in this case
since there was no documentary evidence to
substantiate the same. 71 Although there may be
exceptions to this rule, 72 none is availing in the
present case. Nevertheless, since loss was actually
established in this case, temperate damages in the
amount of P25,000.00 may be awarded to the heirs
of Melton Ferrer. Under Article 2224 of the New
Civil Code, temperate or moderate damages may
be recovered when the court finds that some
pecuniary loss was suffered but its amount cannot
be proved with certainty. Moreover, exemplary
damages should be awarded in this case since the
presence of special aggravating circumstance of
use of unlicensed firearm was already established.
73 Based on prevailing jurisprudence, the award of
exemplary damages for homicide is P25,000.00. 74
In Criminal Cases No. U-9608 and U-
9609, we agree with both courts as to the award of
actual damages and its corresponding amount since
the same is supported by documentary proof
therein. The award of moral damages is also
consistent with prevailing jurisprudence. However,
exemplary damages should be awarded in this case
since the presence of special aggravating
circumstance of use of unlicensed firearm was
already established. Based on prevailing
jurisprudence, the award of exemplary damages for
both the attempted and frustrated homicide shall be
P25,000.00 for each.
WHEREFORE, premises considered,
the decision of the Court of Appeals dated 30
September 2004 is hereby AFFIRMED with the
following MODIFICATIONS:
(1) In Criminal Case No. U-9609, the
petitioner is found guilty of the crime of attempted
homicide. The penalty imposable on the petitioner
is prision correccional under Article 51 of the
Revised Penal Code. 75 There being a special
aggravating circumstance of the use of an
unlicensed firearm and applying the Indeterminate
Sentence of Law, the penalty now becomes four
(4) years and two (2) months of arresto mayor as
minimum period to six (6) years of prision
correccional as maximum period. As regards the
civil liability of petitioner, the latter is hereby
ordered to pay Michael Ferrer exemplary damages
in the amount of P25,000.00 in addition to the
actual damages and moral damages awarded by the
Court of Appeals.
(2) In Criminal Case No. U-9608, the
penalty imposable on the petitioner for the
frustrated homicide is prision mayor under Article
50 of the Revised Penal Code. 76 There being a
special aggravating circumstance of the use of an
unlicensed firearm and applying the Indeterminate
Sentence Law, the penalty now becomes six (6)
years of prision correccional as minimum period to
twelve (12) years of prision mayor as maximum
period. As regards the civil liability of petitioner,
the latter is hereby ordered to pay Servillano Ferrer
exemplary damages in the amount of P25,000.00
in addition to the actual damages and moral
damages awarded by the Court of Appeals.
(3) In Criminal Case No. U-9610, the
penalty imposable on petitioner for the homicide is
reclusion temporal under Article 249 of the
Revised Penal Code. 77 There being a special
aggravating circumstance of the use of an
unlicensed firearm and applying the Indeterminate
Sentence Law, the penalty now is twelve (12)
years of prision mayor as minimum period to
twenty (20) years of reclusion temporal as
maximum period. As regards the civil liability of
petitioner, the latter is hereby ordered to pay
Melton Ferrer exemplary damages in the amount
of P25,000.00 in addition to the actual damages
and moral damages awarded by the Court of
Appeals. The actual damages likewise awarded by
the Court of Appeals is hereby reduced to
P42,374.18.
SO ORDERED.
||| (Palaganas v. People, G.R. No. 165483,
[September 12, 2006], 533 PHIL 169-200)
G.R. No. 139542 June 21, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
INOCENCIO GONZALEZ, JR., accused-
appellant.
DISSENTING OPINION
GONZAGA-REYES, J.:
Many unfortunate tragedies would not have
happened if the improvident use of a firearm did
not exacerbate a simple altercation over traffic.
This is one of them.
On a day intended to pay homage to the dead, a
pregnant woman was shot to death in the course of
her husband’s altercation with the accused-
appellant and his son along the Garden of
Remembrance within the Loyola Memorial Park in
Marikina. The trial court found the accused guilty
of the complex crime of murder and two counts of
frustrated murder and accordingly sentenced him
to death. This case is before us on automatic
review.
The details of what actually transpired in the few
seconds immediately preceding the shooting are
controverted by both parties but the events leading
to this tragedy are not disputed.
In the afternoon of October 31, 1998 at about 2:30
p.m. both the families of the private complainant
Noel Andres and that of the accused-appellant
Inocencio Gonzalez were on their way to the exit
of the Loyola Memorial Park. The appellant was
driving a white Isuzu Esteem with his grandson
and three housemaids, while the private
complainant was driving a maroon Toyota FX with
his pregnant wife Feliber Andres, his two year old
son, Kenneth, his nephew Kevin and his sister-in-
law, Francar Valdez. At the intersection near the
Garden of Remembrance, while the accused-
appellant Gonzalez was turning left towards the
exit and the complainant Noel Andres was headed
straight along the road to the exit their two vehicles
almost collided. Noel Andres was able to timely
step on the brakes. The appellant continued driving
along his way while Noel Andres drove behind the
appellant’s vehicle for some time and cut him off
when he found the opportunity to do so.1 Noel
Andres then got out of his vehicle and knocked on
the appellant’s car window.2 This is as far as their
versions of the incident coincide.
The prosecution’s version of the incident is that
Noel Andres calmly told the appellant to be careful
with his driving and informed the latter that he,
Andres, is with his family and to this Gonzalez
allegedly replied, "Accidents are accidents, what’s
your problem." Andres stated that he saw the
appellant turning red in anger so he decided to go
back to his vehicle when he was blocked by the
appellant’s son who said, "Anong problema mo sa
erpat ko." Andres testified that he felt threatened
and so he immediately boarded his vehicle, sat at
the driver’s seat, closed the door, and partially
opened the car window just wide enough to talk
back to appellant’s son, Dino. Suddenly, one of his
passengers said "Binaril kami". He turned to his
wife Feliber Andres and saw her bloodied and
unconscious. He turned around and saw his son
Kenneth and nephew Kevin were also wounded.
Andres admitted in court that he and Dino were
shouting at each other so that he did not hear the
shot. Andres then got out of his vehicle to warn the
appellant not to flee. He then took the wounded
members of his family to the exit where there was
an ambulance standing by. The three were then
taken to the Sta. Monica Hospital and were later
transferred to the Quezon City Medical Center.
The defense’s version of the incident is that Andres
cut the appellant’s path by positioning his FX
obliquely along the appellant’s lane from the
latter’s left side. Andres then got out of his vehicle,
stood beside the appellant’s car window, and
repeatedly cursed the appellant, "Putang ina mo,
ang tanda-tanda mo na hindi ka pa marunong
magmaneho. Ang bobo-bobo mo."3 The appellant
stayed inside his car and allegedly replied,
"Pasensiya ka na hindi kita nakita, nasilaw ako.
Aksidente lang." The appellant Gonzalez and
another witness for the defense, Quidic, testified
that Noel Andres went back to his vehicle to move
it in such a way that it is straight in front of the
appellant’s car. Andres allegedly got out of his
vehicle again and continued shouting and cursing
at the appellant.4 Dino, the appellant’s son, who
rode in another vehicle decided to go back when he
did not see his father’s car behind him. When Dino
arrived at the scene he confronted Andres and the
two had an altercation. Both Dino and the
appellant stated that Andres remained outside his
vehicle during the altercation with Dino. When
Andres suddenly reached for something inside his
vehicle, Dino froze on the spot where he stood.
This prompted the appellant to get his gun from the
glove compartment and feeling that his son was
threatened he got out of his car ready to shoot.
When he saw that Andres did not have a weapon
he put down his hand holding the gun. This is
when the appellant’s daughter Trisha who was
riding in Dino’s car arrived at the scene, walked
past Dino and Andres, and pushed the appellant
away. She hugged her father and in the process
held his hand holding the gun. The appellant tried
to free his hand and with Trisha’s substantial body
weight pushing against him the appellant lost his
balance and the gun accidentally fired. The
accused stated that he did not know he shot
somebody until the private complainant’s sister-in-
law, Francar Valdez, got out of the vehicle
carrying a bloodied small boy. The defense claims
that the appellant did not try to flee and even told
the complainant’s sister-in-law to take the
wounded to the hospital.
On November 4, 1998 an Information for the
complex crime of Murder, Double Frustrated
Murder and Attempted Murder was filed against
herein accused-appellant:
"That on or about the 31st day of October 1998, in
the city of Marikina, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully,
unlawfully and feloniously with intent to kill,
attack, assault and employ personal violence by
means of treachery and abuse of superior strength
upon the person of Noel Andres y Tomas, by then
and there shooting him with a Glock cal. 9mm
pistol but instead hitting one Feliber Andres y
Ordoño, on the left back portion of her head,
thereby inflicting upon her serious and mortal
wound which directly caused her death, as well as
hitting John Kenneth Andres y Ordoño and Kevin
Valdez y Ordoño physical injuries which ordinarily
would have caused their death, thus performing all
the acts of execution which would have produced
the crime of murder as a consequence, but
nevertheless did not produce it by reason of some
cause or causes, independent of their will, that is,
the timely and able medical assistance rendered to
John Kenneth Andres y Ordoño and Kevin Valdez
y Ordoño to their damage and prejudice as well as
to the damage and prejudice of the heirs of Feliber
Andres y Ordoño."
On arraignment the accused-appellant pleaded "not
guilty" to the crimes charged.
The case records show that Feliber Andres, the
wife of Noel Andres did not die instantaneously.
She lived to give birth to a baby girl5 by caesarian
section and died the following morning on
November 1, 1998. The Autopsy Report6 states:
"FINDINGS: Fairly nourished, fairly developed
female cadaver, with post mortem lividity.
Conjunctivae are pale. Lips and nail beds are
cyanotic. Surgical incisions were noted at left
tempero-parietal region. Surgical incisions is also
noted at the abdominal region secondary to a
caesarian section.
HEAD: (1) gunshot wound, point of entry, left
fronto-temporal region, measuring 1 by 0.9 cm, 9
cm from the anterior midline, with a uniform
abraided collar measuring 0.2 cm., directed
posteriorwards, slightly downwards, and
medialwards, fracturing the frontal, and left
temporal bones, lacerating the left cerebral
hemisphere, with a deformed slug fragment
embedded and recovered at the posterior lobe of
the left cerebral hemisphere. (2) hematoma, left
orbital region, measuring 4.5 by 2 cm, 4 cm from
the anterior midline. There are subdural and
subarachnoidal hemorrages. Stomach contains 1 ½
glassful of partially digested food particles mostly
rice and meaty material.
CONCLUSION: Cause of death is gunshot wound
on the head."
Kenneth and Kevin were treated for extraction of
metallic fragments on their faces. They were
discharged from the hospital six days later or on
November 6, 1998.
On June 25, 1999 the trial court rendered
judgement finding that the shooting was attended
by the qualifying circumstance of treachery and
held the appellant guilty of the complex crime of
murder for the death of Feliber Andres and for two
counts of frustrated murder for the injuries
sustained by Kenneth Andres and Kevin Valdez
and sentenced the appellant to the maximum of the
imposable penalty which is death. The trial court
held:
"Beforehand, the Court takes note of the judicial
admissions on the verbal declarations of the
accused that the court ‘a quo’ has jurisdiction over
the case; that he owns the black Gluck 9 mm.
automatic pistol; that the said gun will never fire
even if he drops it; that only one bullet was fired
from his gun; and that the victim Feliber Andres is
already dead. With this exegesis and the
declarations in open court of the eyewitness of
both the prosecution and some of the defense, there
is no real dispute on the antecedent facts showing
that the accused fired on Noel Andres but instead
hit and caused the fatal injuries to the victims John
Kenneth Andres, Kevin Valdez and Feliber Andres
resulting to the ultimate death of the latter. The
court takes further judicial admissions of the
accused made in their memorandum demonstrating
the existence of five (5) sequences of events
leading to the death of Feliber Andres and the
wounding of John Kenneth Andres and Kevin
Valdez which are as follows: First is when Noel
Andres overtook the car driven of the accused and
cut cross his path; Second is when Noel Andres
alighted from his vehicle and confronted
Inocencio; Third is when Noel had an argument
with Dino Gonzalez, the son of the accused; Forth
is when, Inocencio seeing his son having
confrontation with Noel, got his gun to protect
Dino; and Fifth is when Inocencio had a struggle
with his daughter. Trisha Gonzalez, who tried to
reach for the gun and as a result of which
Inocencio lost his balance and as he was falling
backward to his side, his right arm holding the gun
hit the rear window of the Tamaraw FX van and
the gun accidentally went off hitting the victim,
who were all then inside the van.
The court likewise take judicial notice on the
feature of the automatic pistol used in this case
which is capable of unquestionable demonstration
or ought to be known to judges because of their
judicial functions. Practically, the stages before an
automatic firearm would be capable of firing are as
follows: 1) the loading of a bullet into the chamber
of the gun; 2) the cocking of the hammer, if
uncocked; 3) the releasing of the safety pin; 4) the
pressing of the trigger to unleash the hammer so
that the firing pin will hit the cartridge to propel
the bullet out to hit the target. Realistically, it
demonstrates that a gun will not fire even if the
bullet is loaded in its chamber if the hammer is
uncocked; or even if cocked if the safety pin is
engaged; or even if the safety pin is disengaged if
the trigger will not be pressed. However, even if
the gun is fired if it is not aimed and leveled to the
target, the purpose of firing it shall not be
achieved. Contrarily, once a gun is drawn against a
person, the means methods and forms employed
for its execution is already conceived. And once it
is tended directly and specifically to insure its
execution, it consequently produces the conscious
and deliberate intention. Finally if all the acts of
execution had been effectively done without risk
on the part of the offender arising from any defense
coming from the offended party, treachery results.
In brief, there is treachery when the offender
commits any crime against persons, employing
means, methods and forms in the execution thereof
which tend directly and specially to insure its
execution, without risk to himself arising from any
defense which the offended party might make
(People vs. Mesa 276 SCRA 407; People vs.
Carlos Patrolla, Jr. G. R. No. 112445, March 7,
1996). To appreciate treachery two (2) conditions
must be present, to wit: 1) the employment of
means of execution that give the person attacked
no opportunity to defend himself or retaliate; and
2) the means of execution were deliberately or
consciously adopted. (People vs. Azugue, 268
SCRA 711; People vs. Peña, G. R. No. 116022,
July 1, 1998, p. 1)
In the case at bar and guided with the above-quoted
doctrinal cases, logically, the accused is positive of
the crime charged against him. When he alighted
with a drawn gun to protect his son and released all
the safety measures of his gun as he fired and
missed at Noel who was then unarmed, but instead
hit Kevin Valdez, John Kenneth Andres and
Feliber Andres which resulted to the death of the
latter, demonstrate that the accused has executed
the two (2) conditions to generate treachery enough
to qualify the crime committed to murder."
XXXX XXXXX XXXX
"WHEREFORE, foregoing premises considered,
the accused Inocencio Gonzalez, Jr., y Esquivel is
hereby found guilty beyond reasonable doubt of
the complex crime of Murder with Double
Frustrated Murder and Attempted Murder
penalized under Art. 248, as amended by Republic
Act No. 7659 in relation to Article 48 of the
Revised Penal Code and is sentenced to suffer the
maximum penalty of Death by lethal injection.
The accused is further ordered to pay the following
civil liabilities:
1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the
death of Feliber Andres;
b) the amount of P3,363,663.60 as indemnity for
the loss of earning capacity of the deceased Feliber
Andres;
c) the amount of P98,384.19 as funeral expenses;
d) the amount of P271,800.56 for the
hospitalization expenses incurred for the injuries
sustained by the deceased Feliber Andres and the
amount of P23,622.58 representing the expenses
for the untimely delivery of the child Ma. Clarisse
Andres;
e) the amount of P51,566.00 representing the
hospitalization expenses for the injuries sustained
by the victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages
suffered for the untimely death of his wife Feliber
Andres and for the injuries caused to his son John
Kenneth Andres;
g) the amount of P50,000.00 as and by way of
attorney’s fees and a fee of P2,000.00 per
appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:
a) the amount of P73,824.75 as actual damages for
the injuries sustained by the victim Kevin Valdez;
and
b) the amount of P75,000.00 as and by way of
moral damages.
SO ORDERED."
In his appeal, Gonzalez submits the following
assignments of error:
"1. The trial court committed reversible error when
it found that treachery was present.
2. The trial court committed reversible error when
it presumed that there was treachery by taking
judicial notice of the feature of the automatic pistol
involved in this case.
3. The trial court committed reversible error when
it violated the constitutional right of the accused-
appellant to due process when it took judicial
notice of the feature of the automatic pistol
involved in this case without notice.
4. The trial court committed reversible error when
it found Accused-Appellant guilty beyond
reasonable doubt of the complex crime of Murder
with Double Frustrated Murder.
5. The trial court committed reversible error when
it failed to appreciate the mitigating circumstances
of passion or obfuscation, lack of intention to
commit so grave a wrong, provocation or threat on
the part of the offended party immediately
preceded the act, incomplete defense of relative,
and voluntary surrender.
6. The trial court committed reversible error when
it failed to find that the shooting incident was
accidental.
7. The trial court committed reversible error when
it gave credence to the testimonies of prosecution
witnesses Elmer Ramos and Moises Castro.
8. The trial court committed reversible error when
it disregarded the basic principle that the accused is
presumed innocent and his guilt must be proven
beyond reasonable doubt.
9. The trial court committed reversible error when
it ordered Accused-Appellant to pay for the civil
liabilities."
The appellant seeks a reversal and prays that
judgment be rendered exempting him from
criminal and civil liabilities. Appellant declared
that he had no intention to shoot Noel Andres
much less his wife nor the children. He lost his
balance when his daughter Trisha approached and
pushed him backwards to stop him from joining
Dino and Noel Andres but the appellant tried to
free his right hand holding the gun and it
accidentally fired. The single bullet fired hit the
last window on the left side of the Tamaraw FX.
The appellant claims that he did not see the
passengers inside the vehicle at the time of the
shooting. This is corroborated by the testimony of
two witnesses for the prosecution who testified that
the windows of Andres’ vehicle are heavily tinted
so that a person outside the vehicle would not be
able to see if there are people inside. It is also
argued that had the appellant intended to shoot
Noel Andres he could have simply done so by
shooting at him directly. The defense asserts that
the evidence for the prosecution failed to establish
the attendance of treachery and without the
attendance of the said qualifying circumstance the
crime committed is homicide, not murder.
The appellant also points out that the trial court
made the factual finding that the shooting
happened in a matter of seconds and that it was
preceded by a heated argument between the
parties. Such being the case, it is argued that the
shooting could not have been attended by
treachery. There was no time for the appellant to
consciously and deliberately employ the mode of
attack against Noel Andres, nor against any one of
the actual victims, to insure its execution and at the
same time to eliminate any form of retaliation from
the alleged intended victim. And yet, the trial
court, contrary to the evidence on record, held that
the loading of the bullet into the chamber of the
gun, the cocking of the hammer, the release of the
safety pin and the pulling of the trigger by the
appellant of his automatic pistol constitute
conscious and deliberate effort to employ the gun
as a means of committing the crime and
resultantly, qualified its commission by treachery.
Such a finding presupposes that the appellant
loaded the gun to shoot Noel Andres only that very
moment when his son Dino and Noel Andres were
arguing. This conclusion has no basis on record.
The appellant testified that his gun was loaded
before he left the house and two witnesses for
prosecution stated in court that a few seconds after
Noel Andres and Dino started shouting at each
other, the appellant got out of his car and shot at
the last window on the left side of the
complainant’s vehicle. Further, the appellant
assigns as error the procedure adopted by the trial
court in taking judicial notice that the gun used by
the appellant is an automatic pistol and as such, it
will not fire unless aimed at the intended target.
The procedure taken by the trial court is contrary to
Section 3, Rule 129 of the Rules of Court.7 The
trial court should have given both parties the
opportunity to present evidence, expert evidence, if
necessary, to inform the court on the subject
matter. The appellant argues that the factual
finding borne by such erroneous procedure is
equally erroneous. The gun used by the appellant is
a semi-automatic and not an automatic pistol
which means that the pistol used has no external
safety pin to be released and that the hammer need
not be cocked. The pulling of the trigger,
intentional or not, will fire the gun. The use of a
semi-automatic pistol does not necessarily imply
treachery.
Appellant also argues that the testimonies of
prosecution witnesses Castro and Ramos were
improperly given credence by the trial court. The
appellant contends that a reading of their
testimonies would show that their narration of the
incident is rather absurd and would show that they
did not witness the actual shooting. Defense
witnesses, Gonzalez and his daughter, Trisha, on
the other hand, testified that Castro and Ramos
arrived at the scene only after the shooting.
As regards the injuries sustained by Kevin and
Kenneth, it is argued that considering that there
was no intent to kill and that they stayed in the
hospital only for six days, the crime committed is
physical injuries. It is argued that the trial court
erred in awarding damages. The bunch of receipts
allegedly representing the medical expenses
incurred for the injuries sustained by the victims
was erroneously admitted in evidence, without first
requiring the prosecution to establish the
authenticity of the receipts. The appellant also
points out that the award for loss of earning
capacity has no basis as the deceased was
unemployed at the time of the incident.
Finally, the appellant assigns as error the trial
court’s rejection of the mitigating circumstances
pleaded by the defense which allegedly attended
the commission of the crime, i.e., lack of intent to
commit so grave a wrong, passion and obfuscation,
incomplete defense of a relative and voluntary
surrender. The appellant asserts that these
mitigating circumstances were duly proven during
the trial and are supported by the evidence on
record. The private complainant Noel Andres
testified that he saw the appellant getting red in
anger after they, Andres and the appellant, had a
heated argument immediately prior to the shooting.
These admitted circumstances show that the
appellant was not in his proper state of mind at the
time of the shooting. First, he was angered by
Andres’ abusive language and later he got out of
his car with a loaded gun to protect his son from a
perceived danger. The appellant clams that his
willingness to help the injured and his voluntary
surrender to the police should likewise be
considered as mitigating circumstances in the
imposition of penalties.
The Solicitor-General agrees with the appellant
that the crime was not attended by the qualifying
circumstance of treachery and hence the crime
committed by the appellant for the death of Feliber
Andres is homicide, not murder. The appellee
takes into consideration that the shooting was
preceded by a heated argument and that the
supposed victim was placed on guard that attack
was imminent. It also appears that the shooting
was done impulsively. There is no evidence that
the appellant deliberately employed the means of
attack to insure execution of the crime and at the
same time eliminate the risk of retaliation from the
private complainant. The appellee also agrees with
the appellant that the trial court erred in equating
the use of an automatic pistol with treachery. The
trial court made the factual finding that the
appellant’s automatic pistol would not fire unless
aimed and the trigger is deliberately pulled and
hence treachery attended the shooting. The
appellee submits that if we follow the reasoning of
the trial court it would appear that the appellant
intended to shoot at the complainant’s vehicle only
as the shot was fired at the last window on the left
side of the FX away from where Andres was
allegedly seated. The fact that the gun was drawn
and fired does not mean that the mode of attack
was consciously and deliberately employed.
However, with respect to the injuries sustained by
Kevin and Kenneth, the appellee disagrees with the
contention that the appellant is liable only for
slight physical injuries. The injuries sustained by
both children are head injuries and could have
caused their death if not for the immediate medical
attention given them. The number of days spent in
the hospital is not determinative of the severity of
the wounds. Their nature and location should
instead be considered. The appellant cannot escape
liability for frustrated homicide for the injuries of
the two children on the ground that he fired a
single shot at the vehicle of Noel Andres. He is
liable for all the consequences of his unlawful act
even if the crime committed is different from that
intended.
As regards the pleaded mitigating circumstances,
appellee asserts that none can be considered in
favor of the appellant. There is evidence on record
that the appellant did not voluntarily surrender to
the police and it appears from the testimonies of
witnesses that he entertained the possibility of
flight but his car was stuck in traffic along the exit
of the memorial park. His pretense of incomplete
defense of a relative is belied by his own
admission that when he saw that Noel Andres did
not have a gun he lowered his hand holding the
gun. There was allegedly no threat on the life of
his son at the time of the shooting, no
uncontrollable fear nor irresistible force that would
mitigate the commission of the offense.
The Solicitor-General also seeks to uphold the
pecuniary awards granted by the trial court. The
appellee alleges that it is not denied by the
appellant that Feliber Andres was a 38 year old
registered nurse at the time of the shooting.
Although she was then unemployed on account of
her pregnancy, she still had earning capacity and
the trial court properly applied the salary of a
government nurse under the salary standardization
scheme in the computation of damages for the loss
of earning capacity. The receipts presented in
evidence by the prosecution to establish
hospitalization and other medical expenses
incurred by the private complainants by reason of
the injuries suffered by the victims were duly
authenticated by the prosecution witnesses and
there is no dispute that they are exact copies of the
original receipts presented in court. The objections
raised by the appellant in this regard were duly met
by the evidence presented by the private
complainants.
In sum, the appellee asserts that considering that
the appellant fired a single shot and in the process
committed four offenses the appellant should be
held liable for the complex crime of homicide for
the death of Feliber Andres, double frustrated
homicide against Kevin and Kenneth and
attempted homicide against Noel Andres. Under
the rules on complex crimes the penalty for the
gravest offense, i.e., reclusion temporal for
homicide, should be imposed in its maximum
period.
The appeal has merit.
Treachery under par.16 of Article 14 of the
Revised Penal Code is defined as the deliberate
employment of means, methods or forms in the
execution of a crime against persons which tend
directly and specially to insure its execution,
without risk to the offender arising from the
defense which the intended victim might raise. For
treachery to be appreciated two elements must
concur: 1) the employment of means of execution
that would insure the safety of the accused from
retaliatory acts of the intended victim and leaving
the latter without an opportunity to defend himself
and 2) the means employed were deliberately or
consciously adopted by the offender.8 The
suddenness of the attack, the infliction of the
wound from behind the victim, the vulnerable
position of the victim at the time the attack was
made or the fact that the victim was unarmed do
not by themselves render the attack as
treacherous.9 This is of particular significance in a
case of an instantaneous attack made by the
accused whereby he gained an advantageous
position over the victim when the latter
accidentally fell and was rendered defenseless.10
The means employed for the commission of the
crime or the mode of attack must be shown to have
been consciously or deliberately adopted by the
accused to insure the consummation of the crime
and at the same time eliminate or reduce the risk of
retaliation from the intended victim.11
Accordingly, it has been consistently held by this
court that chance encounters, impulse killing or
crimes committed at the spur of the moment or that
were preceded by heated altercations are generally
not attended by treachery for lack of opportunity of
the accused to deliberately employ a treacherous
mode of attack.12 Thus, the sudden attack made by
the accused due to his infuriation by reason of the
victim’s provocation was held to be without
treachery. Sudden attacks made by the accused
preceded by curses and insults by the victim or acts
taunting the accused to retaliate or the rebellious or
aggressive behavior of the victim were held to be
without treachery as the victim was sufficiently
forewarned of reprisal.13 For the rules on
treachery to apply the sudden attack must have
been preconceived by the accused, unexpected by
the victim and without provocation on the part of
the latter.14
This Court has also had occasion to state that
whether or not the attack succeeds against its
intended victim or injures another or whether the
crime committed is graver than that intended is
immaterial, as long as it is shown that the attack is
attended by treachery, the said qualifying
circumstance may still be considered by the
court.15 Thus, the determining factor on whether
or not the commission of a crime is attended by
treachery is not the resulting crime committed but
the mode of attack employed in its execution.16
Treachery is never presumed. It is required that the
manner of attack must be shown to have been
attended by treachery as conclusively as the crime
itself.17
We affirm the recommendation of the Solicitor-
General that the shooting was not attended by
treachery and accordingly the crime committed for
the death of Feliber Andres is homicide and not
murder.
The encounter between Noel Andres and the
appellant was a chance encounter. They were total
strangers before their vehicles almost collided at an
intersection inside the memorial park.
Unfortunately, heated exchange of remarks that
followed the near collision was fanned by a short
temper, which in the case of the appellant, was
augmented by the improvident use of a firearm.
From a reading of the transcript of the testimonies
of the witnesses, it would appear that Noel Andres,
who had his pregnant wife and child with him,
among others, on board the Tamaraw FX provoked
the altercation. After the near collision of his
vehicle with that of the appellant, he tailed behind
the latter’s car towards the exit until he had the
chance to cut him off to scold him for his failure to
observe traffic rules.18 Andres stated in court that
he calmly told the appellant to be careful with his
driving and denied that he was angry when he
alighted from his vehicle to confront the
appellant.19 His statement is belied by the
witnesses, two prosecution witnesses included,
who uniformly testified that Andres quarreled with
or shouted and cursed at the appellant for the
latter’s recklessness at the intersection.20 The
appellant narrated in court that Andres repeatedly
shouted at him, "Putang ina mo, ang tanda-tanda
mo na gago ka pa".21 Andres’ hostile behavior
towards the appellant is evident from his statement
in court that he noticed the appellant turning red in
anger.22 It is highly improbable for Gonzalez to
have turned red in anger had Andres been polite, as
he claims he was, in scolding Gonzalez. Andres
could have simply communicated to the appellant
his disgust for the latter’s bad driving when he
overtook the appellant’s car near the scene of the
shooting but instead he chose to block the
appellant’s path, insult and virtually provoke the
appellant to retaliate.
Andres stated in court that when he noticed
Gonzalez’ infuriation he immediately walked
towards his vehicle, because according to him the
altercation was over. On his way to his FX he met
another man, whom he later found out to be the
appellant’s son, Dino. It appears that the
altercation was far from over because again Andres
had a shouting match this time with Dino.23 In a
matter of seconds, the appellant alighted from his
car and fired a single shot at the last window on the
left side of Andres’ vehicle at an angle away from
Noel Andres. The single bullet fired hit Feliber
Andres on the forehead near the temporal region
above the left eye and the two children with
metallic fragments of the bullet on their faces, one
at the cheek and the other below his left eye.
The prosecution did not present evidence as to the
exact seating arrangement of the victims inside the
vehicle; suffice it to say, that an examination of the
pictures of the vehicle24 one of which shows a
mass of blood stains on the left side (towards the
driver’s seat) of the white seat cover below the
head rest25, would show that the deceased Feliber
must have been seated at the front passenger’s seat
and the children at the middle row behind the
driver’s seat.26 Another picture shows a bullet
hole on the last window on the left side of the
vehicle27 and another shows that the front
windshield appears undamaged.28 A ballistics
expert appeared in court for the prosecution and
testified that the bullet fired at the FX came from
the appellant’s gun, which fact was admitted by the
defense. The prosecution did not inquire from the
ballistics expert regarding the trajectory of the
bullet or the approximate distance of the appellant
from the FX when he fired his gun to establish
whether or not the appellant aimed for Noel or
Feliber or simply fired indiscriminately at the
latter’s vehicle.29
At first blush it would seem that the shooting of
Feliber Andres was attended by treachery as she
was inside the FX witnessing her husband’s
altercation, first, with the appellant then with the
appellant’s son, totally defenseless from the shot
that came suddenly from her left side. Public
outrage over the death of Feliber was heightened
by the fact that she was then pregnant with her
second child and her death left a new born baby
girl and a two year old boy motherless.
However, a meticulous review of the evidence
prevents a conclusive finding of treachery and any
doubt must be resolved, like the fact of the
commission of an offense, in favor of the accused.
The pictures indicate that Gonzalez fired at the FX
at an angle away from Noel Andres and that
Gonzalez was not aiming at anybody in particular.
It is not disputed that the appellant’s car was
directly behind the complainant’s FX and that
Gonzalez who was then seated at the driver’s seat
alighted from his car, took a few steps then fired at
the left side of the FX. Whether Noel Andres was
seated at the driver’s seat inside his vehicle when
Gonzalez fired at the FX, as the prosecution
asserts, or was standing by the door of the driver’s
seat outside his vehicle, as the defense submits, it
is clear that the shot was fired away from Noel
Andres. The bullet hit Feliber near her temple
above the left eye indicating that she was facing
left towards her husband when the shot was
fired.30 The direct hit on Feliber’s head shows that
the angle of the shot was indeed away from Noel
Andres. Even the eyewitness for the prosecution
testified that had the appellant intended to kill Noel
Andres he could have shot directly at him,
considering that Noel Andres was just a few steps
away from him31 and that Noel Andres was visible
from the outside because his window was partially
open.32 The pictures show that the bullet hole was
on the third window on the left side of the
Tamaraw FX33 belying any attempt to shoot Noel
Andres. Two prosecution witnesses Ramos and
Castro unequivocally declared that "nothing or no
one" prevented Gonzalez from shooting directly at
Noel Andres and that Gonzalez could have simply
done so if he wanted to. But after alighting from
his car, Gonzalez took a few steps and shot at the
left side window of the FX.34
The fact that the appellant fired his gun from
behind the victim does not by itself amount to
treachery. There is no evidence on record that the
appellant deliberately positioned himself behind
the victim to gain advantage over him when he
fired the shot. On the contrary, the evidence before
us reveals that the position of the appellant’s car
was not of his own doing but it became so when
Noel Andres overtook his car and cut off his path.
We note further, that the appellant did not act
belligerently towards Noel Andres even after the
latter cut off the appellant’s path. Andres stated in
court that the appellant did not alight from his car
nor opened his window until he, Andres, tapped on
it.35 For his part Gonzalez categorically stated in
court that he did not point his gun nor threatened
Andres during their short spat.36 Gonzalez,
although he had his gun in his car, did not react to
Andres’ cursing until the latter was having an
altercation with the appellant’s son, Dino.
Gonzalez claimed that he perceived that his son
was in imminent danger.37 Whether he
overreacted or he shot at Andres’ vehicle out of
rage over Andres’ aggressive behavior, one thing
appears clear to us, that the shooting was not done
in cold blood. It is undisputed that the windows of
the FX are heavily or darkly tinted so that a person
outside would not see if anybody was inside.38
The pictures of the FX39 on record confirm the
testimonies of both prosecution and defense
witnesses that the other passengers of the FX were
not visible from the outside. Gonzalez admitted in
court that Noel Andres mentioned that he has
passengers with him while he was shouting and
cursing at Gonzalez but there is no indication that
Gonzalez had any opportunity to see the
passengers when he fired the shot. The totality of
the evidence on record fails to support a conclusion
that Gonzalez deliberately employed the mode of
attack to gain undue advantage over the intended
nor the actual victim. Without any decisive
evidence to the contrary, treachery cannot be
considered; thus the crime committed is
homicide.40
The trial court’s finding that the loading of the gun,
the cocking of the hammer and finally the pulling
of the trigger constitute a deliberate effort on the
part of appellant to use the gun as a means of a
treacherous attack is patently erroneous. A single
and continuous attack cannot be divided into stages
to make it appear that treachery was involved.41
The entire incident happened in a matter of
minutes, as testified to by witnesses, and as noted
by the trial court.42 It was error to our mind for the
trial court to divide the assault in stages to arrive at
the conclusion that the mode of attack was
consciously employed by the appellant. Contrary
to the finding of the trial court that the appellant
prepared the gun before getting out of his car, the
appellant testified that he loaded his gun before he
left the house and that it was ready to fire when he
alighted his car. There was no time for him to
reflect on the mode of attack since he just picked
up his gun and alighted from his car and shot at the
FX a few seconds after Dino and Noel Andres
started shouting at each other.43 We note further
that the trial court pointed out that from the fact
that the appellant prepared his gun to shoot, this
was an indication of the deliberate employment of
the gun as a means to kill; i.e. that the use of an
automatic pistol shows that the shooting was
attended by treachery.
We do not agree that the weapon used, by itself, is
determinative of treachery, unless it is shown, and
it is not herein shown, that the appellant
deliberately used the gun to insure the commission
of the crime and to render the unarmed victim
defenseless. As discussed above, the encounter
between the appellant and the Andresses was a
chance encounter and the appellant’s gun was in
the glove compartment of his car even before he
left his house. The shooting was clearly a spur of
the moment or impulsive decision made by the
appellant preceded by a heated altercation at the
instance of the private complainant. Jurisprudence
teaches us that under the circumstances, treachery
is not obtaining. In the case of People vs. Valles,44
the accused, a security guard, fired his Armalite
and mortally wounded the victim when the latter
approached the accused four times insisting on
entering the workplace wearing improper uniform,
then cursed and insulted and challenged the
accused to a fight. We held that the shooting was
not attended by treachery as the shooting was
preceded by a heated altercation at the instance of
the victim. It is to be noted that the kind of weapon
used against an unarmed victim was not taken into
consideration in determining the attendance of
treachery; it is the mode of attack employed by the
accused under the particular circumstances of a
case that determines its attendance in the
commission of a crime. We find that the
prosecution has not discharged its burden to show
that the shooting was attended by treachery and we
are convinced that the crime committed for the
death of Feliber Andres is homicide.
As regards the injuries sustained by the two
children we find that the crime committed are two
counts of slight physical injuries. The intent to kill
determines whether the crime committed is
physical injuries or homicide and such intent is
made manifest by the acts of the accused which are
undoubtedly intended to kill the victim.45 In a case
wherein the accused did not know that a person
was hiding behind a table who was hit by a stray
bullet causing superficial injuries requiring
treatment for three days, the crime committed is
slight physical injuries.46 In case of doubt as to the
homicidal intent of the accused, he should be
convicted of the lesser offense of physical
injuries.47 We have earlier pointed out that the
intent to kill is absent in this case. It was also
found that one small metallic fragment was
extracted from Kenneth below his left eye while
another fragment was extracted from Kevin
"immediately below the level of his skin before the
cheek bone".48 An examination of the testimonies
of the attending physicians, showed that the
wounds sustained by the two children from the
metallic fragments are not in themselves fatal but
may cause death if left untreated. One of the
attending physician testified in court that the
fragments themselves "will not cause complication,
it is the entry of the fragment" or the open wound
that is susceptible to infection.49 Two small
fragments were no longer extracted from the face
of Kevin Valdez, as the doctor deemed it to be
without danger of complication.50 We note that
the various sizes of the metallic fragments were not
established, at least to give an indication of the
severity of the wounds sustained. Both children
were discharged after six days of treatment and
there is no showing that they required subsequent
treatment or that they were immobilized for a
greater number of days by reason of the injuries
sustained. Considering the nature and location of
their injuries and the number of days required for
their treatment, we find that the crime committed
for the injuries sustained by the children are two
counts of slight physical injuries under Art. 266 of
the Revised Penal Code which imposes a penalty
of arresto menor or imprisonment for 1 to 30 days
for injuries sustained that has incapacitated the
victim for one to nine days or required medical
attendance for the same period. For evident lack of
criminal intent to kill the complainant, Noel
Andres, as above stated, the information for
attempted homicide must fail.
The mitigating circumstances of voluntary
surrender, passion and obfuscation, incomplete
defense of a relative and lack of intent to commit
so grave a wrong, pleaded by the defense, were not
convincingly proved and none can be considered in
the imposition of penalties. The testimony of
prosecution witness contradicts the appellant’s
pretense of voluntary surrender. Witness Ramos
testified that the appellant drove away towards the
gate of the memorial park while he was
questioning him after the shooting and had not
Noel Andres and onlookers blocked his path the
appellant could have fled the scene of the crime.51
The mitigating circumstance of passion and
obfuscation is also not obtaining. For this
mitigating circumstance to be considered, it must
be shown that (1) an unlawful act sufficient to
produce passion and obfuscation was committed
by the intended victim; (2) that the crime was
committed within a reasonable length of time from
the commission of the unlawful act that produced
the obfuscation in the accused’s mind; and that (3)
"the passion and obfuscation arose from lawful
sentiments and not from a spirit of lawlessness or
revenge".52 Noel Andres’ act of shouting at the
appellant’s son, who was then a nurse and of legal
age, is not sufficient to produce passion and
obfuscation as it is claimed by the accused.
Besides, the appellant’s son, Dino was shouting
back at Noel Andres. It was not a case wherein the
appellant’s son appeared helpless and oppressed
that the appellant lost his reason and shot at the FX
of Noel Andres. The same holds true for the
appellant’s claim of provocation on the part of
Noel Andres. Provocation must be sufficient to
excite a person to commit the wrong committed
and that the provocation must be commensurate to
the crime committed. The sufficiency of
provocation varies according to the circumstances
of the case.53 The aggressive behavior of Noel
Andres towards the appellant and his son may be
demeaning or humiliating but it is not sufficient
provocation to shoot at the complainant’s vehicle.
The plea for the appreciation of the mitigating
circumstance of incomplete defense of a relative is
also unmeritorious since the act of Andres in
cursing and shouting at the appellant and his son
do not amount to an unlawful aggression against
them, Dino Gonzalez. Finally, the plea for the
appreciation of the mitigating circumstance of lack
of intent to commit so grave a wrong is likewise
devoid of merit. This mitigating circumstance is
obtaining when there is a notable disparity between
the means employed by the accused to commit a
wrong and the resulting crime committed. The
intention of the accused at the time of the
commission of the crime is manifested from the
weapon used, the mode of attack employed and the
injury sustained by the victim.54 The appellant’s
use of a gun, although not deliberately sought nor
employed in the shooting, should have reasonably
placed the appellant on guard of the possible
consequences of his act. The use of a gun is
sufficient to produce the resulting crimes
committed.
For the death of Feliber Andres, and in the absence
of any mitigating circumstance, the appellant is
hereby sentenced to an indeterminate sentence of 8
years and 1 day of prision mayor, in its medium
period, as minimum to 14 years 8 months and 1
day of reclusion temporal in its medium period, as
maximum. For each count of the slight physical
injuries committed against Kenneth Andres and
Kevin Valdez, the appellant is hereby sentenced to
20 days of arresto menor in its medium period.
The rules on the imposition of penalties for
complex crimes under Art. 48 of the Revised Penal
Code are not applicable in this case. Art. 48 applies
if a single act constitutes two or more grave and
less grave felonies or when an offense is a
necessary means of committing another; in such a
case, the penalty for the most serious offense shall
be imposed in its maximum period. Art. 9 of the
Revised Penal Code in relation to Art. 25 defines
grave felonies as those to which the law attaches
the capital punishment or afflictive penalties from
reclusion perpetua to prision mayor; less grave
felonies are those to which the law attaches a
penalty which in its maximum period falls under
correctional penalties; and light felonies are those
punishable by arresto menor or fine not exceeding
two hundred pesos. Considering that the offenses
committed by the act of the appellant of firing a
single shot are one count of homicide, a grave
felony, and two counts of slight physical injuries, a
light felony, the rules on the imposition of
penalties for complex crimes, which requires two
or more grave and/or less grave felonies, will not
apply.
The pecuniary award granted by the trial court for
actual damages was duly established by the
testimonies of the prosecution witnesses as
supported by the original receipts for
hospitalization and other medical expenses
presented in evidence by the prosecution. The
award for loss of earning capacity is likewise
sustained for the reason that while Feliber Andres
was pregnant and was unemployed at the time of
death, it is not disputed that she was a registered
nurse and had earning capacity. Noel Andres also
testified that he and his wife had plans to go back
to Saudi Arabia to work after Feliber had given
birth to their second baby. While there is no
evidence as to Feliber’s actual income at the time
of her death, in view of her temporary separation
from work because of her pregnancy, we do not
consider it reversible error for the trial court to peg
her earning capacity to that of the salary of a
government nurse under the salary standardization
law, as a fair estimate or reasonable assessment of
her earning capacity at the time of her death. It
would be grossly inequitous to deny her spouse
and her minor children damages for the support
that they would have received, considering clear
evidence on record that she did have earning
capacity at the time of her death.
The awards for moral damages for the death of
Feliber Andres and for the injuries sustained by the
two children, which under the circumstances are
reasonable, are likewise sustained.
WHEREFORE, the decision of the trial court is
hereby MODIFIED. The appellant is hereby found
guilty of homicide for the death of Feliber Andres
and is sentenced to an indeterminate sentence of 8
years and 1 day of prision mayor in its medium
period, as minimum, to 14 years 8 months and 1
day of reclusion temporal in its medium period, as
maximum. For each count of the slight physical
injuries committed against Kenneth Andres and
Kevin Valdez, the appellant is hereby sentenced to
20 days of arresto menor.
The pecuniary awards granted by the trial court are
hereby sustained.
SO ORDERED.
G.R. Nos. 138943-44 September 17, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
HENRY ALMAZAN, accused-appellant.
BELLOSILLO, J.:
This is an appeal from the Joint Decision1 of the
trial court declaring accused-appellant Henry
Almazan guilty of murder and frustrated murder. It
traces its origin to two (2) Informations charging
Henry Almazan with shooting Noli S. Madriaga
with a handgun, aggravated by treachery and
evident premeditation, which caused the latter's
death; and with shooting Noel Madriaga with the
same handgun which would have produced the
latter's death if not for timely medical attendance,
docketed as Crim. Cases Nos. C-51276 and C-
51277 respectively. These cases were tried jointly
pursuant to Sec. 14, Rule 119, of the 1985 Rules
on Criminal Procedure.
On 28 September 1996, at about 4:00 o'clock in the
afternoon, Vicente Madriaga and a certain Allan
played chess in front of the former's house at Pag-
asa, Camarin, Caloocan City. Spectators were
Vicente's son Noli, who was carrying his 2-year
old daughter, Vicente's grandson Noel, and a
neighbor named Angel Soliva. While the game was
underway, Henry Almazan unexpectedly arrived
and brandished a .38 caliber revolver in front of the
group. Almazan's fighting cocks had just been
stolen and he suspected Angel, one of the
spectators, to be the culprit. Thus he said, "manos-
manos na lang tayo,"2 aimed his gun at Angel and
pulled the trigger. It did not fire. He tried again,
but again it failed.
At this juncture, Vicente Madriaga stood up and
tried to calm down Henry, but the latter refused to
be pacified ("ayaw paawat"). Angel ran away and
Henry aimed his gun instead at Noli. Noli cried for
mercy, for his life and that of his daughter, but to
no avail.3 Henry shot Noli at the left side of his
stomach sending him immediately to the ground.
His daughter, unscathed, held on to Noli, crying.
Henry then turned on Noel and shot him on the left
thigh. Noel managed to walk lamely ("paika-ika")
but only to eventually fall to the ground.
Thereafter, Vicente Madriaga called on his
neighbors who brought Noli and Noel to the
hospital. Noli however died before reaching the
hospital, while Noel survived his injuries.
Dr. Ma. Cristina Freyra of the PNP Crime
Laboratory Service conducted an autopsy on the
body of Noli which revealed that the cause of the
victim's death was a gunshot at the trunk from a
.38 caliber revolver. Dr. Misael Jonathan Ticman,
attending physician of Noel, in turn declared that
the gunshot wound on the left thigh of Noel was a
minor injury that would heal in a week.4 Noel was
never admitted in the hospital as his doctor sent
him home the same day.5 On cross-examination,
Dr. Ticman testified that if not medically treated
the wound might get infected or lead to the victim's
death.6
Witnesses for the defense narrated a different
version. They pointed to Angel Soliva instead as
the person to blame for Noli Madriaga's death
while justifying Noel Madriaga's wound as a result
of self-defense.
Henry Almazan testified that at about 4:00 o'clock
in the afternoon of 28 September 1996 he went
home accompanied by his friend Johnald Molina.
Henry's wife informed him upon his return that his
fighting cocks, twelve (12) in number, had been
stolen. He went out of the house to inquire from
neighbors as to who could have taken his cocks.
He was followed by Johnald. On their way they
saw Vicente Madriaga and Allan playing chess
surrounded by Noli, Noel, Angel and other
persons. They were drinking liquor. As he
(Almazan) and Johnald were passing by, Angel
called Henry and asked if he was looking for his
fighting cocks. The group then burst into laughter
and pointed to their pulutan. Someone in the group
advised Henry not to look anymore for his fighting
cocks as he would only be courting trouble
("naghahanap ka lang ng sakit ng katawan"). To
this advice Henry replied, "Bakit naman ganoon?"
Suddenly, Angel pulled out his gun and shot Henry
twice but the gun did not fire. Seizing the
opportunity Henry grappled with Angel for the
possession of his gun. During the scuffle Angel
pulled the trigger which hit Noli. Henry finally
succeeded in wresting the gun from Angel and
aimed it at him. Suddenly, he received a blow from
behind and he fell. As he raised his head from the
ground, he saw Noel poised to attack him with a
broken bottle, so that he had to train his gun at the
lower part of Noel's body and fired. The bullet hit
Noel on the thigh which sent him reeling down his
knees ("napaluhod"). Shocked and afraid that he
hit Noel, Henry ran home.
Johnald Molina corroborated Henry Almazan's
statement in all material points. Johnald testified
that the group mocked Henry when they told him
not to look for his cocks anymore as they had
already been cooked for pulutan, and to insist in
his search would only cause him physical trouble.
Henry could only reply, "Tila nga may nagnakaw
ng mga manok ko . . . . Bakit naman ganoon?" As
he made his remarks, someone from the group
suddenly pulled out a gun and aimed at Henry.
Henry grappled with the gun-wielder who pressed
the trigger twice but the gun misfired each time.
When the gun-wielder pulled the trigger for the
third time it fired, hitting a person who was
carrying a small child and standing within the
vicinity. He was obviously referring to Noli.
Johnald immediately ran towards Henry's house to
report the incident to his wife and asked for help.
Then he heard another shot, but in his haste to
reach Henry's house he ignored it. Upon reaching
Henry's house, Henry also arrived. To avoid being
involved and out of fear, Johnald did not report the
incident to the police. Later however, bothered by
his conscience and being the friend of Henry,
Johnald volunteered to testify on what he knew of
the incident.
The court a quo found Henry Almazan's defense
devoid of merit. Apart from being positively
identified by the prosecution witnesses as the
person responsible for the violence and the injuries
inflicted, the trial court declared that the theft of
Henry's fighting cocks constituted sufficient
motive for the killing and that as a cockfight
afficionado he must have found it imperative to
exact vengeance on his suspected culprits.7 The
trial court held that the testimony of Johnald failed
to create reasonable doubt on the guilt of Henry
since as a friend he was expected to extend succor
to a friend, especially one in need.8 Thus, the trial
court held Henry Almazan guilty of murder and
frustrated murder as charged.
In imposing the penalty for each offense, the lower
court appreciated the qualifying circumstance of
treachery against accused-appellant on the ground
that the victims were completely defenseless when
attacked and did not commit the slightest
provocation, but found no justification for evident
premeditation as there was no proof as to the
manner and time during which the plan to kill was
hatched. On the contrary, the trial court found in
favor of accused-appellant the mitigating
circumstance of passion and obfuscation. Thus, in
Crim. Case No. C-51276, accused-appellant was
sentenced to the reduced penalty of reclusion
perpetua instead of death, with all the accessory
penalties according to law, and ordered to pay the
heirs of the victim P50,000.00 as death indemnity,
P8,000.00 as funeral expenses, and to pay the
costs; while in Crim. Case No. C-51277, he was
sentenced to an indeterminate prison term of eight
(8) years of prision mayor, as minimum, to
fourteen (14) years and eight (8) months of
reclusion temporal, as maximum, with all the
accessory penalties provided by law, and to pay
P20,000.00 as civil indemnity, without subsidiary
imprisonment in case of insolvency, and to pay the
costs.9
Accused-appellant now prays to be absolved of
murder in Crim. Case No. C-51276 on the ground
that the prosecution has failed to prove his guilt
beyond reasonable doubt. He assails the testimony
of Shirley Abordo, common-law wife of Nilo
Madriaga, for being hearsay, as well as the
testimony of Vicente Madriaga for its alleged
inconsistencies in various vital points.
Significantly, accused-appellant impugns the
veracity of the prosecution's evidence for its failure
to present Angel Soliva who was primarily
involved in the incident and whom the defense
points to as the real transgressor. Thus, accused-
appellant contends that evidence sufficient to
establish the absolute and moral certainty of his
guilt being absent he should be acquitted.
As for Crim. Case No. C-51277, accused-appellant
contends that the trial court erred in holding him
guilty of frustrated murder as the wound sustained
by Noel Madriaga was not fatal that could have
caused his death if not for timely medical
assistance. Moreover, accused-appellant claims
that he shot Noel only to forestall any attack on
him and not to kill Noel intentionally.
Appellate courts are doctrinally bound by the trial
court's assessment of the credibility of witnesses
given the clear advantage of a trial judge in the
appreciation of testimonial evidence. The trial
court is in the best position to assess the credibility
of witnesses and their testimonies because of its
unique opportunity to observe the witnesses first-
hand and to note their demeanor, conduct and
attitude under grueling examination - factors which
are significant in the evaluation of the sincerity of
witnesses and in unearthing the truth.10 We see no
reason to depart from this doctrine.
The witnesses for the prosecution were consistent
in their narration of the manner by which the
events transpired, and they remained steadfast in
their identification of accused-appellant as the
author of the violence. Despite attempts to
confound them, Vicente Madriaga and Noel
Madriaga were relentless in their declaration that it
was accused-appellant, armed with a .38 caliber
revolver, who pounced upon them without warning
thereby killing Noli Madriaga and wounding Noel
Madriaga in the process. They were one in their
assertion that accused-appellant was inflamed by
his suspicion that Angel Soliva and Noel Madriaga
had stolen his fighting cocks and was intent on
getting even with them, thus he fired at them.
Efforts to pass the blame on the group by claiming
that in their inebriated state they mocked accused-
appellant and thus initiated the violence were
actually set to naught as Vicente and Noel
Madriaga unfailingly denied the same.
True, Shirley Abordo's testimony was spattered
with inconsistencies bordering at times on
incoherence. As she herself admitted, her narration
was merely derived from the accounts of the other
prosecution witnesses and not from her own
perception of the events. This constitutes hearsay,
which we then reject. Be that as it may, these
alleged inconsistencies are immaterial and
irrelevant as they do not alter the determination of
the Court that murder was committed and accused-
appellant was the assailant. For a discrepancy to
serve as basis for acquittal, it must refer to
significant facts vital to the guilt or innocence of
the accused. An inconsistency, which has nothing
to do with the elements of the crime, cannot be a
ground to reverse a conviction.11
In the same vein, the testimony of Angel Soliva or
of Allan, with whom Vicente Madriaga was
playing chess, is unnecessary as the facts on record
are clear enough for judicial assessment and
verdict.
The defense suggests that it could be Angel Soliva
instead who shot Noli Madriaga. This is
unacceptable in the face of the positive
identification of the accused by the prosecution
witnesses. The allegation that the shooting was the
accidental consequence of the struggle between
accused-appellant and Angel Soliva does not
inspire belief as no substantial evidence was
presented to prove it. It is highly improbable that a
struggle even occurred as accused-appellant and
Angel Soliva were surrounded by the latter's
friends who would have easily ganged up on
accused-appellant. Testimonial evidence to be
credible should not only come from the mouth of a
credible witness but should also be credible,
reasonable and in accord with human
experience,12 failing in which, it should be
rejected.
Indeed, Johnald Molina corroborated the statement
of accused-appellant pointing at Angel Soliva as
the real culprit; however, we are inclined to agree
with the observation of the court a quo that it was
natural for an individual to exert effort in liberating
his friend from confinement or execution, even to
the extent of distorting the truth.
It is significant to note that accused-appellant went
into hiding after the shooting incident and was only
collared by the agents from the Western Police
District eight (8) months later. Flight indeed is an
indication of guilt, especially when accused-
appellant failed to sufficiently explain why he left
his residence and resurrected only several months
after.
The trial court properly appreciated the presence of
treachery as the attack was made upon the unarmed
victims who had not committed the slightest
provocation and who were totally unaware of the
murderous designs of accused-appellant. Contrary
to the finding of the court a quo, treachery in this
case qualifies the offense to murder, hence, may
not be considered a generic aggravating
circumstance to increase the penalty from reclusion
perpetua to death. In other words, while the
imposable penalty for murder is reclusion perpetua
to death, in the absence of any mitigating or
aggravating circumstance, the lesser penalty of
reclusion perpetua shall be imposed. The
mitigating circumstance of passion and obfuscation
cannot be appreciated in favor of accused-appellant
as this was never proved during the trial.
As for Crim. Case No. C-51277, accused-appellant
admits responsibility for the injuries inflicted on
Noel but reasons out that he did so only to defend
himself. Accused-appellant therefore pleads self-
defense, a justifying circumstance that could acquit
him of the charge but which we are not disposed to
grant as the elements necessary to qualify his
actions13 were not present. In alleging that the
killing arose from an impulse to defend oneself,
the onus probandi rests upon accused-appellant to
prove by clear and convincing evidence the
elements thereof: (a) that there was unlawful
aggression on the part of the victim; (b) that there
was reasonable necessity for the means employed
to prevent or repel it; and, (c) that there was lack of
sufficient provocation on the part of the
defendant.14 This, it has failed to discharge.
Nevertheless, we find that the accused-appellant
should be held liable for attempted murder, not
frustrated murder. For the charge of frustrated
murder to flourish, the victim should sustain a fatal
wound that could have caused his death were it not
for timely medical assistance. This is not the case
before us. The court a quo anchored its ruling on
the statement of Dr. Ticman on cross-examination
that the wound of Noel could catch infection or
lead to his death if not timely and properly treated.
However, in his direct testimony, Dr. Ticman
declared that the wound was a mere minor injury
for which Noel, after undergoing treatment, was
immediately advised to go home.15 He even
referred to the wound as a slight physical injury
that would heal within a week16 and for which the
victim was in no danger of dying.17 Clear as the
statement is, coupled with the fact that Noel was
indeed immediately advised to go home as he was
not in any danger of death, we have no reason to
doubt the meaning and implications of Dr.
Ticman's statement. His statement that Noel could
catch infection was based on pure speculation
rather than on the actual nature of the wound which
was a mere minor injury, hence, not fatal.
According to jurisprudence, if the victim was
wounded with an injury that was not fatal, and
could not cause his death, the crime would only be
attempted.18 The observation that the conviction
should be for slight physical injuries only is
likewise improper as the accused-appellant was
motivated by the same impetus and intent, i.e., to
exact vengeance and even kill, if necessary, when
he shot Noel Madriaga. The fact that the wound
was merely a minor injury which could heal in a
week becomes inconsequential.
In the final analysis, there being no mitigating nor
aggravating circumstance and the more appropriate
offense being attempted murder, accused-appellant
should be meted a penalty two (2) degrees lower
than the prescribed penalty of reclusion perpetua,
which is prision mayor the range of which is six
(6) years and one (1) day to twelve (12) years.
Applying the Indeterminate Sentence Law in the
case for attempted murder, the maximum shall be
taken from the medium period of prision mayor,
which is eight (8) years and one (1) day to ten (10)
years, while the minimum shall be taken from the
penalty next lower in degree, or prision
correccional, in any of its periods, the range of
which is six (6) months and one (1) day to six (6)
years.
WHEREFORE, the Joint Decision of the trial court
of 15 June 1999 finding accused-appellant
HENRY ALMAZAN guilty of Murder in G.R. No.
138943 (Crim. Case No. C-51276) and sentencing
him to reclusion perpetua with its accessory
penalties, and to pay the heirs of Noli Madriaga
P50,000.00 as death indemnity, P8,000.00 as
funeral expenses, and to pay the costs, is
AFFIRMED. However, his conviction for
Frustrated Murder in G.R. No. 138944 (Crim. Case
No. C-51277) is MODIFIED by lowering the
crime to Attempted Murder and he is sentenced
accordingly to an indeterminate prison term of two
(2) years, four (4) months and ten (10) days of
prision correccional medium as minimum, to eight
(8) years two (2) months and twenty (20) days of
prision mayor medium as maximum, and to pay
the offended party Noel Madriaga the amount of
P20,000.00 as civil indemnity, and to pay the costs.
SO ORDERED.
G.R. No. 142500 April 20, 2001
THE PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
DECOROSO ACA-AC y CESPON, accused-
appellant.
MENDOZA, J.:
This is an appeal from the decision,1 dated
February 19, 1994, of the Regional Trial Court,
Branch 4, City of Tagbilaran, finding accused-
appellant Decoroso Aca-ac y Cespon, alias
"Kokong," guilty of frustrated rape and sentencing
him to suffer the indeterminate penalty of
imprisonment from twelve (12) years of prision
mayor, as minimum, to seventeen (17) years, four
(4) months, and one (1) day of reclusion temporal,
as maximum, with accessory penalties, and to
indemnity the complainant Fritzie Aca-ac the
amount of P30,000.00 as moral damages and
P20,000.00 as exemplary damages. Originally
taken to the Court of Appeals, the appeal was
certified to this Court pursuant to rule 124, §13 of
the Revised Rules on Criminal Procedure in view
of the appeals court's ruling2 that accused-
appellant is guilty of consummated, not frustrated,
rape and that the appropriate penalty to be imposed
on accused-appellant is reclusion perpetua.
The facts are as follows:
On the basis of criminal complaints3 of the minor
Fritzie Aca-ac, four informations4 for rape were
filed against accused-appellant in the Regional
Trial Court of Tagbilaran City.
In Criminal Case No. 7091, the information
alleged:
That on or about the 22nd day of September, 1990
at Barangay Villalimpia, Municipality of Loay,
Province of Bohol, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused through craft, lured and brought the
victim Fritzie Aca-ac, a minor below twelve years
of age, to the former's house and to his bedroom
and thereafter, with intent to have sexual
intercourse, removed the victim's panty, let her lie
down while he lay on top her, inserted his penis
into her labia minora near the clitoris of the vagina
and succeeded in having carnal knowledge with the
victim with her vitiated consent since she is below
twelve years old, to the damage and prejudice of
the said offended party.
CONTRARY TO LAW.
In Criminal Case No. 7092, the information
charged:
That on or about the 17th day of October, 1990 at
Barangay Villalimpia, Municipality of Loay,
Province of Bohol, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused through craft, lured the victim
Fritzie Aca-ac, a minor below twelve years of age
to remove her shorts and panty and to lie down on
the ground, and thereafter, the accused inserted his
penis into her vagina near the clitoris and vaginal
opening and succeeded in having carnal knowledge
with the victim with her vitiated consent since she
is below twelve years old, to the damage and
prejudice of the said offended party.1âwphi1.nêt
CONTRARY TO LAW.
In Criminal Case No. 7093, the information
alleged:
That on or about the 12th day of January, 1991 at
Barangay Villalimpia, Municipality of Loay,
Province of Bohol, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused through craft, lured the victim
Fritzie Aca-ac, a minor below twelve years of age
to go to a bushy place near a nipa plantation, and,
upon reaching the place, let her undress and lie
down while he lay on top of her, and thereafter, he
inserted his penis inside her vaginal opening near
her clitoris and succeeded in having carnal
knowledge with the victim with her vitiated
consent since she is below twelve years old, to the
damage and prejudice of the said offended party
CONTRARY TO LAW.
In Criminal Case No. 7094, the information
asserted:
That on or about the 8th day of September, 1990 at
Barangay Villalimpia, Municipality of Loay,
Province of Bohol, Philippines and within the
jurisdiction of this Honorable Court, the above-
named accused through craft, lured and brought the
victim Fritzie Aca-ac, a minor below twelve years
of age, to an old uninhabited house, and thereafter,
upon reaching the place, took off her shorts and her
panty with intent to ace sexual intercourse with her
and then let her lie down after which the accused
lay on top of her and inserted his penis into the
labia minora near the clitoris of the vagina of the
victim and succeeded in having carnal knowledge
with her vitiated consent since she is below twelve
years old, to the damage and prejudice of the aid
offended party.
CONTRARY TO LAW.
Accused-appellant having pleaded not guilty to the
charges, the joint trial of the cases was set. Five
witnesses were presented by the prosecution in
support of its case, namely, complainant Fritzie
Aca-ac, her mother, Felipa Aca-ac, her classmate,
Algerico Lonio, the physician, Dr. Stella Maris J.
Amora, and rebuttal witness Esteban Dagandan.
In Criminal Case No. 7094, complainant testified
that on September 8, 1990, she was asked by her
mother Felipa Aca-ac to buy cooked fish (inon-
onan) for dinner from a store in Barangay
Villalimpia, Loay, Bohol. On her way home, she
met accused-appellant, who held her by the hand
and forced her to go with him to the vacant house
of one Pinay Aguirre. Once inside, accused-
appellant removed complainant's shorts and panty
and made her lie down on the floor, which was
covered with coconut leaves. Complainant claimed
that accused-appellant fondled her breasts and
licked her private parts. He then went on top of her
and made "push and pull movements." When he
was through, complainant said, accused-appellant
withdrew his penis and white fluid came out.
Complainant said she then wiped her private parts
and put on her cloths. She said she did not tell
anyone what happened to her.5
Algerico Lonio, a resident of Barangay
Villalimpia, Loay, Bohol and a classmate of
complainant testified that at about 7:00 p.m. of
September 8, 1990, he was at the house of one
Emmie Blasco when he saw accused-appellant and
complainant going inside the house of Pinay
Aguirre, which was known in the neighborhood to
be haunted. Out of curiosity, he said, he followed
the two and peeped through the fence at the back.
He saw accused-appellant undress complainant, go
on top of her, and make "push and pull
movements." Lonio said he knew that the two were
having sexual intercourse, which lasted for about
three minutes. He claimed he did not tell anyone
what he saw for fear of his life. But, Lonio said, on
February 27, 1991, he and complainant had a
quarrel in school during which he asked
complainant about the rape. According to Lonio,
complainant admitted that accused-appellant had
raped her and then left crying. Lonoi later narrated
the incident to complainant's mother.6
In Criminal Case No, 7091, complainant testified
that at about 4:00 p.m. of September 22, 1990,
after gathering some guavas in Barangay
Villalimpia, Loay, Bohol, she passed by the house
of accused-appellant on her way home. When
accused-appellant saw her, he tried to lure her on
the pretext that he had some papayas for her.
Complainant got inside the house, but sensing that
there was no papaya in the house, she immediately
tried to leave. Accused-appellant, however, closed
the door and brought her to his bedroom where he
raped her. Accused-appellant threatened her with
harm if she told anyone about the incident.7
In Criminal Case No. 7092, complainant testified
that at about 4:30 p.m. of October 17, 1990, as she
was gathering firewood in Barangay Villalimpia,
Loay, Bohol, accused-appellant came and forced
her to remove her shorts and panty. She was made
to lie down on the ground covered with nipa leaves
and was then raped by accused-appellant.
Complainant went home after the incident,
bringing with her the firewood she had gathered.8
In Criminal Case No. 7093, complainant testified
that at about 1:00 p.m. of January 12, 1991, as she
was on her way home from the house of a certain
Betty, she saw accused-appellant near the house of
one Ned Reyes in Villalimpia, Loay, Bohol.
Accused-appellant seized her and dragged her to a
bush near the plantation and made her undress and
lie down. Then he allegedly forced her to have
sexual intercourse with him.9
Complainant's mother, Felipa Aca-ac, testified that
accused-appellant is the cousin of her father-in-
law, Faustino Aca-ac. She said that in the
afternoon of February 27, 1991, she learned from
Lonio that her daughter had been raped by
accused-appellant. She said that when she
confronted her daughter, the latter admitted that
accused-appellant had raped her four times.
According to her, the next day, February 28, 1991,
she took Fritzie to Dr. Stella Maris J. Amora of the
Governor Celestino Gallares Memorial Hospital
for medical examination. Felipa said that accused-
appellant offered to pay P12,000.00 as settlement
of the case.10
Dr. Amora testified that there was no laceration in
the hymen of complainant. She said, however, that
it was possible that there could be a penetration of
a male organ up to the labia minora and the hymen
would still be intact.11
The defense presented six witnesses, namely,
accused-appellant Decoroso Aca-ac, Faustino Aca-
ac, Felix Adorable, Rosalio Pamayloan, Petronia
Aca-ac, and Alberto Cempron.
Accused-appellant Decoroso Aca-ac y Cespon, 57
years old at the time of the alleged rape incidents,
denied the charges and claimed that Felipa Aca-ac
had instigated complainant to file the charges
because he told Felipa's husband that Felipa was
having an affair with another man. He said the
charges because he told Felipa's husband that
Felipa was having an affair with another man. He
said the charges were trumped up by Felipa
because she wanted to extort P30,000.00 from him.
He also stated that he had a quarrel with Felipa's
husband, Roberto, because the latter had stolen his
chicken. Accused-appellant said he reported the
matter to Barangay Captain Felix Adorable. He
stated that Faustino Aca-ac tried to get the parties
to settle the case, but he failed in his efforts.
Accused-appellant alleged that at 57, he was
already old and that he could no longer have an
erection.12
Faustino Aca-ac, grandfather of complainant and a
cousin of accused-appellant, testified that he did
not believe accused-appellant committed the crime.
He said accused-appellant and complainant's
parents had a misunderstanding which he tried to
settle insuccessfully.13
Felix Adorable, a former barangay captain of
Villalimpia, Loay Bohol and an incumbent
barangay kagawad, confirmed accused-appellant's
claim that he had filed a complaint against Roberto
Aca-ac, complainant's father, with the Katarungang
Pambarangay.14
Rosalio Pamayloan was a neighbor of accused-
appellant and a resident of Villalimpia, Loay,
Bohol for 12 years. He testified that he had been a
principal in a public school since 1983. He
personally knew accused-appellant and vouched
for the character of accused-appellant as a good
man.15
Petronia P. Aca-ac, wife of accused-appellant,
testified that she and her husband had been married
for 36 years and had six children, two of whom
had died. On the four occasions on which it was
alleged accused- appellant had raped complainant,
Petronia said her husband was in their house
helping her make "nipa shingles."16
On rebuttal, the prosecution presented Esteban
Dagandan, who testified that complainant's mother,
Felipa, worked as a nurse of his (Dagandan's) wife,
because the latter had suffered a stroke. Dagandan
disputed accused-appellant's claim that
complainant and her mother had demanded
P30,000.00 for the settlement of the case. He said
that sometime in May 1992, Albert "Berting"
Cempron, a nephew of accused- appellant,
accompanied by his wife Lydia, thrice went to his
(Dagandan's) house asking Felipa to withdraw the
case against accused-appellant. Accused-appellant
offered to pay Felipa P12,000.00 as settlement of
the case, but the same was rejected.17
Felipa Aca-ac was recalled to the stand. She denied
Rosalio Pamayloan's testimony that she proposed a
settlement of the case for P30,000.00 and that
accused-appellant had no criminal record in their
barangay. She said that she rejected Albert
Cempron's P12,000.00 offer, made in behalf of
accused-appellant, for the settlement of the case.18
Complainant Fritzie Aca-ac was also recalled to
the stand. She rebutted the testimony of accused-
appellant that he could no longer have an erection.
She said she saw accused-appellant insert his erect
penis into her vulva.19
On sur-rebuttal, Alberto A. Cempron, the barangay
captain of Matin-aw, Carmen, Bohol, testified that
he tried to bring the parties to an amicable
settlement of their case because they are relatives
and his wife is a cousin of complainant's father.
However, he said he was unsuccessful as accused-
appellant's wife was willing to pay only
P12,000.00 but Felipa wanted P30,000.00.20
On February 19, 1994, the trial court rendered a
decision convicting accused-appellant of frustrated
rape in Criminal Case No. 7094 and acquitting him
of the charges in the rest of the cases. The
dispositive portion of its decision reads:
WHEREFORE, under Criminal Case No. 7094, the
Court finds accused Decoroso Aca-ac y Cespon
guilty beyond reasonable doubt of the crime of
frustrated rape and he is hereby sentenced to
undergo an indeterminate penalty of imprisonment
ranging from twelve (12) years of prision mayor,
as minimum, to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal, as
maximum, with all its accessory penalties, to
indemnify the offended party Fritzie Aca-ac the
sum of P30,000.00 as moral damages and another
amount of P20,000.00 in the concept of exemplary
damages.
As regards the three other above-entitled cases,
Criminal Case Nos. 7091, 7092, & 7093, all for
rape, accused Decoroso Aca-ac y Cespon, alias
Kokong, is hereby acquitted on the ground of
reasonable doubt.
SO ORDERED.21
On appeal, the Court of Appeals held that accused-
appellant was guilty of consummated rape and
accordingly sentenced him to reclusion perpetua.
Hence, this appeal.
First. In holding that the crime committed was
frustrated rape, the trial court relied on the findings
of Dr. Amora which showed that complainant did
not have any lacerations in her hymen which in
fact was intact. The trial court pointed out that
there was no evidence of penetration into the
vagina of complainant.
This is error. As this Court explained in People v.
Orita,22 rape is either attempted or consummated.
There can be no frustrated rape. While the
penultimate paragraph of Art. 335 of the Revised
Penal Code23 prescribes death for attempted or
frustrated rape, and a homicide committed by
reason or on the occasion thereof, the provision on
frustrated rape is a "dead provision." This Court
said in Orita:
Clearly, in the crime of rape, from the moment the
offender has carnal knowledge of his victim, he
actually attains his purpose and, from that moment
also all the essential elements of the offense have
been accomplished. Nothing more is left to be
done by the offender, because he has performed the
last act necessary to produce the crime. Thus, the
felony is consummated. In along line of cases
(people v. Oscar, 48 Phil. 527 (1925); People v.
Hernandez, 49 Phil. 980 (1925); People v.
Royeras, 56 SCRA 666 (1974); People v. Amores,
58 SCRA 505 (1974)), we have set the uniform
rule that for the consummation of rape, perfect
penetration is not essential. Any penetration of the
female organ by the male organ is sufficient. Entry
of the labia or lips of the female organ, without
rupture of the hymen or laceration of the vagina, is
sufficient to warrant conviction. Necessarily, rape
is attempted if there is no penetration of the female
organ (People v. Tayaba, 62 Phil. 559 (1935);
People v. Rabadan and Olaybar, 53 Phil. 694
(1927); United States v. Garcia, 9 Phil. 434 (1907))
because not all acts of execution were performed.
The offender merely commenced the commission
of a felony directly by overt acts. Taking into
account the nature, elements, and manner of
execution of the crime of rape and jurisprudence
on the matter, it is hardly conceivable how the
frustrated stage in rape can ever be committed.24
As the Court of Appeals noted, accused-appellant A- He pushed down my knees and caused me
should be convicted of rape in its consummated to lie down.
stage and not merely for frustrated rape, since the COURT:
entry of the male organ into the labia of the female Q- You mean the accused pushed down your
organ alone is sufficient to constitute consummated knees and thereafter pushed your body causing you
rape. to lie down face up?
For that matter, the mere touching of the labia or A- When he pushed down my knees, so I
pudendum by the male organ is enough to squatted at that time and he also pushed my
consummate the crime of rape.25 It is enough that shoulder that caused me to lie down on my back.
there is a penetration, however slight, of the ATTY. ALEXANDER H. LIM:
external genitalia.26 Consequently, the fact that Q- After that what happened next?
there was no laceration of complainant's private A- He kissed me on the lips.
parts or that her hymen was intact, as testified to Q- Now, when he did that to you, did you not
by Dr. Amora,27 does not preclude a finding of resist?
rape against accused-appellant. It bears emphasis A- I did not.
that a broken hymen or laceration of any part of the COURT (TO WITNESS)
female genital is not a pre-requisite for a Q- Why did you not like to be kissed by the
conviction for rape.28 accused at that time?
Accused-appellant's claim that it was impossible A- I tried to avoid his kiss but he held my
for him, then 57 years old, to commit the crime of hands.
rape because he could no longer have ATTY. ALEXANDER H. LIM:
an erection is self-serving. Age is not the criterion Q- Now, did you not bite him? When you did
in determining sexual interest and potency. not like his kiss?
The birth certificate (Exh. C) of complainant A- I did not.
shows that she was born on April 9, 1979. Since Q- Still you did not offer any resistance to
complainant was then about 11 years old when she shout?
was raped by accused-appellant on September 8, A- I resisted but he held my hands.
1990, the crime is statutory rape under Art. 335, Q- Why did you tell the Court that you uttered
paragraph 3 of the Revised Penal Code. something?
Second. Accused-appellant contends that the way A- I told him.
complainant narrated the lurid details of how she Q- Meaning your voice was not heard?
was allegedly raped is not the way an innocent A- He told me not to shout.
child below 12 years of age testifies, but the way a Q- Why did you not shout the way that it
woman, who is worldly and experienced in sex, could be heard by your neighbors?
will testify. Accused-appellant questions A- Because he told me not to make any noise
complainant's narration as he likens them to stories for he will kill me.
contained in pornographic magazines and movies. Q- Is that all?
The contention has no merit. Where an alleged A- Yes, sir.
rape victim says she was sexually abused, she says Q- But he did not carry any weapon?
almost all that is necessary to show that rape had A- No, sir.
been inflicted on her person, provided her Q- Now, after that kiss on your lips, what
testimony meets the test of credibility.29 For no happened next?
woman would allow an examination of her private A- He sucked my nipples.
parts or go through the humiliation of a trial unless Q- Did you not push him when he sucked your
she has actually been so brutalized that she desires nipples?
justice for her suffering.30 A- I held the back of his head.
In this case, accused-appellant has not shown any Q- How did he suck your nipples?
reason for complainant's testimony not to be given FISCAL REINERIO S. NAMOCA TCA T:
credence. At the time she was raped, complainant Is there a particular way of sucking nipples?
was an 11 year-old Grade 5 student of Loay ANSWER OF WITNESS:
Central School in Loay, Bohol. After she was He raised my t-shirt.
deflowered by accused-appellant, she was forced to ATTY. ALEXANDER H. LIM:
silence by threats on her life. It was only on March Q- So, he raised your t-shirt in sucking your
1, 1991 when she executed a sworn statement31 nipples?
before the police authorities narrating therein how A- Yes, sir
she had been raped four times by accused- Q- Still in raising your t-shirt, you did not
appellant. She told her story in open court. shout?
Complainant testified how she was raped on A- I told him don't, but he did not heed.
September 8, 1991, thus: Q- Still in a low voice?
ATTY. ALEXANDER H. LIM: A- Yes, sir.
Q- Now, what happened after your short pants Q- You did not shout loudly?
and panty were removed? A- I did not because he told me if I will make
A- That was the time that I squatted, I have no a noise or report the matter, he will kill me.
more panty and short pants. Q- You were afraid of him when you said he
Q- .Now, when you said you were squatting, did not hold any weapon?
did it not occur to your mind to run away or shout? A- I was afraid he would box me.
A- No, I did not. COURT:
Q- And so what happened after that? Any further questions?
ATTY. ALEXANDER H. LIM: Q- So, he was holding your hands and you
Q- Now, at that time according to you he could cross your leg if you want to?
sucked your nipples, you did not consider that you A- I cannot cross my legs because his two legs
were already endangered? were over me.
A- I have not known of such danger. COURT (TO WITNESS):
Q- After that, what happened next? Q- You mean his body was over your spread
A- He also sucked the other nipple. legs while mounting from the licking until he
Q- So, the two nipples were sucked? mounted on you?
A- Yes, sir. A- Yes, sir, his body was over my two legs.
Q- So, what happened after that? COURT:
A- He licked my vagina. Any further questions?
Q- When he licked your vagina, you did not ATTY. ALEXANDER H. LIM:
shout or protest? Q- Now, what happened after that?
A- I told him don't, I tried to stand up but he A- He made a push and pull movement.
pushed me and pressed my forehead. Q- What did you feel when he was doing that
Q- At that moment he was very busy licking act of push and pull movement?
your vagina, what else did he do? A- There was something hot that I felt on my
A- He pressed my forehead. vagina.
Q- While he was licking your vagina, you COURT:
pushed his head? Why did you feel something hot in your vagina?
A- I pushed his forehead. A- It seems that there was something hot that
COURT: went out from my vagina. It was a sticky fluid.
Q- Did you succeed when you stand up after Q- .Where did the fluid come from?
pushing the forehead of the accused? A- May be it came out when he put his penis
A- Because of his strength, when I stood up, on my vagina.
he held my hand and I was made to lie down again. Q- Did you feel the hot fluid coming from the
Q- While he was licking your vagina, where penis of the accused and did you feel inside your
was the hand of the accused? vagina or from the labia of your vagina?
A- When I pushed the forehead, he was licking A- The penis was inside my vagina because he
my vagina. tried to make way to the large opening of my
Q- So, what happened after that? vagina so that his penis will enter.
A- He mounted on me. Q- Did you feel the penis of the accused
Q- Before that, while the accused was licking penetrating your vagina?
your vagina, were your legs apart? A- Yes, sir, it went inside.
A- Because my legs were apart, he licked my COURT (TO WITNESS)
vagina. Q- What happened to your vagina, did it bleed
Q- You made it voluntarily or the accused when the penis of the accused entered your vagina?
made it apart? A- The penis did not enter but just inside the
A- I was the one who spread my two legs. opening of my vagina.
ATTY. ALEXANDER H. LIM: Q- You mean in the vulva of your vagina?
Q- In doing so, when you spread your legs, the A- It was not inside the opening of the vagina
accused used his two hands? but near the clitoris.
A- Yes, sir, he used his two hands. Q- So, you are now changing your testimony,
Q- At the same time he was licking your you said earlier that the penis of the accused
vagina? penetrated your vagina and now you are changing
A- Yes, sir. your testimony by saying that the penis of the
Q- And in that very moment you could stand accused only touched the clitoris of your vagina?
up or you could squat or use your hand to fight FISCAL REINERIO S. NAMOCATCAT:
back or to resist? The witness is trying to say to enter the mouth of
A- I tried to rise up and pushed his forehead. the vagina until the clitoris. This child is still very
Q- And you succeeded in rising up pushing his young to demonstrate the fact that the penetration
forehead? was made up to the labia minora of the victim.32
A- After I pushed his forehead, he crawled and Her consistent testimony despite intense and
held my hands and let me lie down again. lengthy interrogation33 belies accused-appellant's
Q- In that process, did you not shout? claim that she was telling a tale culled from
A- I did not shout, I was afraid he might press pornographic magazines or movies. Faced with
me. complainant's testimony, accused-appellant could
Q- But he did not press you? only offer the defense of denial. It is well-settled
A- But he told me if I will make noise, he will that denial cannot prevail over the positive
kill me. identification and categorical testimony of
Q- Now, after that what happened? complainant. The rule is that between the positive
A- He mounted on me. declarations of the prosecution witnesses and the
Q- His whole weight mounted on you? negative statements of the accused, the former
A- Yes, sir, his whole body. deserves more credence.34 That is why accused-
Q- And how did you feel? appellant had to summon to his aid an alleged
A- I cannot push his head because he held my affidavit of desistance (Exh. 3) of complainant and
hands this was the time I could not move. her mother. But how could this bind complainant
and her mother or prove anything when the so-
called affidavit is unsigned?
Third. Accused-appellant says complainant did not
immediately report the incidents to the authorities
nor tell the same to her mother. He claims that the
cases were filed merely to extort money from him.
These claims have no basis. The fact that
complainant did not immediately report the matter
to the authorities was fully explained by the
prosecution. Complainant was only 11 years old
when the rape incidents took place. Young girls
usually conceal for some time their defilement.35
Moreover, accused-appellant, being the cousin of
her paternal grandfather, exercised moral
ascendancy over complainant and even threatened
her with death if she told anyone what he had done
to her.
Nor is there any probable reason for complainant
to allow herself to be used as a pawn of her mother
Felipa to extort money from accused-appellant.
Unless it can be shown that complainant was
moved by ill will to falsely implicate accused-
appellant, the inescapable conclusion is that her
testimony is worthy of full faith and credit.36
Fourth. Accused-appellant doubts the veracity of
Algerico Lonio's testimony that he had witnessed
the rape of complainant on September 8, 1990.
Accused-appellant points out that Lonio failed to
report the incident to complainant's parents or to
the authorities despite the fact that there was no
threat to his life. Accused-appellant also points out
certain improbabilities in the testimony of Lonio,
to wit: that he peeped through the "back fence of
the house" and saw accused-appellant raping
complainant; that despite the fact that the supposed
incident happened between 7:00 to 8:00 p.m., no
mention was made of any form of illumination of
the place; and that accused-appellant made "push
and pull movements" when the medical findings
show that complainant's hymen was intact, thereby
proving that there could not have been any
penetration by accused-appellant's organ.
These arguments have no merit. On cross-
examination, Lonio said that he knew what would
happen to complainant when accused appellant
took her to the empty house of Pinay Aguirre
because his (Lonio's) own younger sister and the
sister of complainant had been abused by accused-
appellant before. He said he saw how accused-
appellant violated complainant against her will.37
Answering questions of the trial court, Lonio
categorically said:
COURT: (TO WITNESS)
Q You said that you followed the two, accused
and the complainant, after they entered the gate of
the house of Pinay Aguirre. Did accused Decoroso
not close the gate after they gained entrance to the
gate?
A Decoroso closed the gate.
Q Was it locked?
A He just closed it without locking.
Q How far is the gate to the house of Pinay
Aguirre? To the main door of her house?
INTERPRETER:
Witness pointing to a distance indicating 3 to 4
meters.
COURT:
Q What door was used when they entered the
house? The back door, or front door, or side door .
A Side door.
Q How do you know that they were using the
side door when they entered the house?
A Because I saw them.
Q The two were seeing you when you entered
the gate following them?
A They did not see me.
Q Did you enter the house of Pinay Aguirre
using the side door taken by the two when they
entered the same house?
A No.
Q Where were [you] posted then?
A Inside the fence because I climbed over the
bamboo fence.
Q Fence around the house of Pinay Aguirre?
A It only connected the gate because there was
a poultry .
Q So, you did not enter the house of Pinay
Aguirre where the complainant and the accused
had entered at 7 :00 o'clock in the evening of
September 8, 1990?
A I did not.
Q Why did you say that Fritzie Aca-ac was
already lying down and her short was pulled and
her blouse was raised above her breast?
A I peeped.
Q There was a hole or there was a window?
A From a hole of a fence which is a hogwire.
Q How far was that fence made of hogwire to
the house of Pinay Aguirre where the complainant
and the accused entered?
INTERPRETER:
Witness indicating a distance of 3 to 4 meters.
COURT:
Q So that that portion of the house where the
two entered was not surrounded by any walling in
such a way that they could be seen from the wire?
A No wall.
Q How do you describe the house? Is it two
storeys, or a building without walls?
A A two-storey house. Only the first storey has
no wall because it was already destroyed by a
storm.
Q Was the place lighted, considering that it
was already 7:00 o'clock in the evening the
incident allegedly happened?
A It was well lighted because the opposite
house was well lighted.
Q And the light would reach the house of Pinay
Aguirre?
A Yes.
Q When you saw the complainant with her
shorts already pulled down, did I hear you
correctly that the accused with the bended knees
made a push-and-pull movement of the body of the
complainant?
A Yes.
Q Was his penis exposed?
A Yes, I saw.
Q You said that the accused licked the vagina
of the complainant. Which happened first, the
licking of the vagina or the push-and-pull
movement?
A The licking of the vagina happened first and
after that, the accused made a push-and-pull
movement.
Q Since you said that the penis of the accused
was exposed, did we understand from you that the
accused also pulled down his trousers, as well as
his underwear?
A Yes.
Q Did you see the penis of the accused
penetrate into the vagina of the complainant?
A I did not see because Fritzie was under .
Q In that precise moment, how far were you to
the two?
INTERPRETER:
Witness indicating a distance of 3 to 4 meters.
COURT:
Q Did you hear any utterances [from] either of
the two regarding the push-and-pull movement
made by the accused? Did you hear anything from
the accused while making a push-and-pull
movement?
A None.
Q From complainant Fritzie, did you hear
anything from her while the accused was making a
push-and-pull movement over her?
A I did not hear any word from Fritzie.
Q You said earlier that the accused and the
complainant had several intercourse. This is also
testified to by you during the cross-examination.
Do you know that the two were having sexual
intercourse?
A Because of the movement of Decoroso.
Q After the push-and-pull movement, what
transpired next?
A No more.
The alleged inconsistencies in the testimony of
Lonio as to the details of the September 8, 1990
rape incident are inconsequential. It was evident
that Lonio was telling the truth. He cried after
narrating to the court how he told his mother about
the incident. When the trial judge asked him why
he cried, Lonio said that he was hurt because the
same thing happened to his younger sister.39 He
also said that he kept his silence in the beginning
because he feared for his life.40 The testimony of
Lonio contains details that dovetails on material
points with the testimony of complainant.
Fifth. While increasing the imposable penalty to
reclusion perpetua in view of its conclusion that
accused-appellant was guilty of statutory rape, the
Court of Appeals affirmed the trial court's award of
P30,000.00 for moral damages and P20,000.00 for
exemplary damages in favor of the complainant.
This ruling must be modified. In accordance with
current rulings of this Court, the award of moral
damages should be increased to P50,000.00.41 In
addition, complainant should be paid P50,000.00
as civil indemnity.42 On the other hand, the award
of P20,000.00 as exemplary damages should be
deleted for lack of basis.
WHEREFORE, the decision of the Court of
Appeals finding accused-appellant Decoroso Aca-
ac y Cespon guilty of statutory rape and sentencing
him to suffer the penalty of reclusion perpetua is
AFFIRMED with the MODIFICATION that
accused-appellant is ordered to pay complainant
Fritzie Aca-ac P50,000.00 as civil indemnity and,
in addition, P50,000.00 as moral damages. The
award of P20,000.00 as exemplary damages is
hereby deleted.1âwphi1.nêt
SO ORDERED.
G. R. No. 160188 June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD,
petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON.
COURT OF APPEALS NACHURA,
respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of
our criminal law jurisprudence. Petitioner
effectively concedes having performed the
felonious acts imputed against him, but instead
insists that as a result, he should be adjudged guilty
of frustrated theft only, not the felony in its
consummated stage of which he was convicted.
The proposition rests on a common theory
expounded in two well-known decisions1 rendered
decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the
accused in both cases were found guilty. However,
the rationale behind the rulings has never been
affirmed by this Court.
As far as can be told,2 the last time this Court
extensively considered whether an accused was
guilty of frustrated or consummated theft was in
1918, in People v. Adiao.3 A more cursory
treatment of the question was followed in 1929, in
People v. Sobrevilla,4 and in 1984, in Empelis v.
IAC.5 This petition now gives occasion for us to
finally and fully measure if or how frustrated theft
is susceptible to commission under the Revised
Penal Code.
I.
The basic facts are no longer disputed before us.
The case stems from an Information6 charging
petitioner Aristotel Valenzuela (petitioner) and
Jovy Calderon (Calderon) with the crime of theft.
On 19 May 1994, at around 4:30 p.m., petitioner
and Calderon were sighted outside the Super Sale
Club, a supermarket within the ShoeMart (SM)
complex along North EDSA, by Lorenzo Lago
(Lago), a security guard who was then manning his
post at the open parking area of the supermarket.
Lago saw petitioner, who was wearing an
identification card with the mark "Receiving
Dispatching Unit (RDU)," hauling a push cart with
cases of detergent of the well-known "Tide" brand.
Petitioner unloaded these cases in an open parking
space, where Calderon was waiting. Petitioner then
returned inside the supermarket, and after five (5)
minutes, emerged with more cartons of Tide
Ultramatic and again unloaded these boxes to the
same area in the open parking space.7
Thereafter, petitioner left the parking area and
haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was
waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the
vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the
open parking area. When Lago asked petitioner for
a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago fired
a warning shot to alert his fellow security guards of
the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen
merchandise recovered.8 The filched items seized
from the duo were four (4) cases of Tide
Ultramatic, one (1) case of Ultra 25 grams, and
three (3) additional cases of detergent, the goods
with an aggregate value of ₱12,090.00.9
Petitioner and Calderon were first brought to the
SM security office before they were transferred on
the same day to the Baler Station II of the
Philippine National Police, Quezon City, for
investigation. It appears from the police
investigation records that apart from petitioner and
Calderon, four (4) other persons were apprehended
by the security guards at the scene and delivered to
police custody at the Baler PNP Station in
connection with the incident. However, after the
matter was referred to the Office of the Quezon
City Prosecutor, only petitioner and Calderon were
charged with theft by the Assistant City
Prosecutor, in Informations prepared on 20 May
1994, the day after the incident.10
After pleading not guilty on arraignment, at the
trial, petitioner and Calderon both claimed having
been innocent bystanders within the vicinity of the
Super Sale Club on the afternoon of 19 May 1994
when they were haled by Lago and his fellow
security guards after a commotion and brought to
the Baler PNP Station. Calderon alleged that on the
afternoon of the incident, he was at the Super Sale
Club to withdraw from his ATM account,
accompanied by his neighbor, Leoncio
Rosulada.11 As the queue for the ATM was long,
Calderon and Rosulada decided to buy snacks
inside the supermarket. It was while they were
eating that they heard the gunshot fired by Lago,
leading them to head out of the building to check
what was
transpiring. As they were outside, they were
suddenly "grabbed" by a security guard, thus
commencing their detention.12 Meanwhile,
petitioner testified during trial that he and his
cousin, a Gregorio Valenzuela,13 had been at the
parking lot, walking beside the nearby BLISS
complex and headed to ride a tricycle going to
Pag-asa, when they saw the security guard Lago
fire a shot. The gunshot caused him and the other
people at the scene to start running, at which point
he was apprehended by Lago and brought to the
security office. Petitioner claimed he was detained
at the security office until around 9:00 p.m., at
which time he and the others were brought to the
Baler Police Station. At the station, petitioner
denied having stolen the cartons of detergent, but
he was detained overnight, and eventually brought
to the prosecutor’s office where he was charged
with theft.14 During petitioner’s cross-
examination, he admitted that he had been
employed as a "bundler" of GMS Marketing,
"assigned at the supermarket" though not at SM.15
In a Decision16 promulgated on 1 February 2000,
the Regional Trial Court (RTC) of Quezon City,
Branch 90, convicted both petitioner and Calderon
of the crime of consummated theft. They were
sentenced to an indeterminate prison term of two
(2) years of prision correccional as minimum to
seven (7) years of prision mayor as maximum.17
The RTC found credible the testimonies of the
prosecution witnesses and established the
convictions on the positive identification of the
accused as perpetrators of the crime.
Both accused filed their respective Notices of
Appeal,18 but only petitioner filed a brief19 with
the Court of Appeals, causing the appellate court to
deem Calderon’s appeal as abandoned and
consequently dismissed. Before the Court of
Appeals, petitioner argued that he should only be
convicted of frustrated theft since at the time he
was apprehended, he was never placed in a
position to freely dispose of the articles stolen.20
However, in its Decision dated 19 June 2003,21
the Court of Appeals rejected this contention and
affirmed petitioner’s conviction.22 Hence the
present Petition for Review,23 which expressly
seeks that petitioner’s conviction "be modified to
only of Frustrated Theft."24
Even in his appeal before the Court of Appeals,
petitioner effectively conceded both his felonious
intent and his actual participation in the theft of
several cases of detergent with a total value of
₱12,090.00 of which he was charged.25 As such,
there is no cause for the Court to consider a factual
scenario other than that presented by the
prosecution, as affirmed by the RTC and the Court
of Appeals. The only question to consider is
whether under the given facts, the theft should be
deemed as consummated or merely frustrated.
II.
In arguing that he should only be convicted of
frustrated theft, petitioner cites26 two decisions
rendered many years ago by the Court of Appeals:
People v. Diño27 and People v. Flores.28 Both
decisions elicit the interest of this Court, as they
modified trial court convictions from
consummated to frustrated theft and involve a
factual milieu that bears similarity to the present
case. Petitioner invoked the same rulings in his
appeal to the Court of Appeals, yet the appellate
court did not expressly consider the import of the
rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for
giving short shrift to the Diño and Flores rulings
since they have not yet been expressly adopted as
precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of
frustrated theft has not come to pass before us. Yet
despite the silence on our part, Diño and Flores
have attained a level of renown reached by very
few other appellate court rulings. They are
comprehensively discussed in the most popular of
our criminal law annotations,29 and studied in
criminal law classes as textbook examples of
frustrated crimes or even as definitive of frustrated
theft.
More critically, the factual milieu in those cases is
hardly akin to the fanciful scenarios that populate
criminal law exams more than they actually occur
in real life. Indeed, if we finally say that Diño and
Flores are doctrinal, such conclusion could
profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting.
Any scenario that involves the thief having to exit
with the stolen property through a supervised
egress, such as a supermarket checkout counter or
a parking area pay booth, may easily call for the
application of Diño and Flores. The fact that lower
courts have not hesitated to lay down convictions
for frustrated theft further validates that Diño and
Flores and the theories offered therein on frustrated
theft have borne some weight in our jurisprudential
system. The time is thus ripe for us to examine
whether those theories are correct and should
continue to influence prosecutors and judges in the
future.
III.
To delve into any extended analysis of Diño and
Flores, as well as the specific issues relative to
"frustrated theft," it is necessary to first refer to the
basic rules on the three stages of crimes under our
Revised Penal Code.30
Article 6 defines those three stages, namely the
consummated, frustrated and attempted felonies. A
felony is consummated "when all the elements
necessary for its execution and accomplishment are
present." It is frustrated "when the offender
performs all the acts of execution which would
produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally,
it is attempted "when the offender commences the
commission of a felony directly by overt acts, and
does not perform all the acts of execution which
should produce the felony by reason of some cause
or accident other than his own spontaneous
desistance."
Each felony under the Revised Penal Code has a
"subjective phase," or that portion of the acts
constituting the crime included between the act
which begins the commission of the crime and the
last act performed by the offender which, with
prior acts, should result in the consummated
crime.31 After that point has been breached, the
subjective phase ends and the objective phase
begins.32 It has been held that if the offender never
passes the subjective phase of the offense, the
crime is merely attempted.33 On the other hand,
the subjective phase is completely passed in case
of frustrated crimes, for in such instances,
"[s]ubjectively the crime is complete."34
Truly, an easy distinction lies between
consummated and frustrated felonies on one hand,
and attempted felonies on the other. So long as the
offender fails to complete all the acts of execution
despite commencing the commission of a felony,
the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define
each crime under the Revised Penal Code are
generally enumerated in the code itself, the task of
ascertaining whether a crime is attempted only
would need to compare the acts actually performed
by the accused as against the acts that constitute
the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is
frustrated or consummated necessitates an initial
concession that all of the acts of execution have
been performed by the offender. The critical
distinction instead is whether the felony itself was
actually produced by the acts of execution. The
determination of whether the felony was
"produced" after all the acts of execution had been
performed hinges on the particular statutory
definition of the felony. It is the statutory
definition that generally furnishes the elements of
each crime under the Revised Penal Code, while
the elements in turn unravel the particular requisite
acts of execution and accompanying criminal
intent.
The long-standing Latin maxim "actus non facit
reum, nisi mens sit rea" supplies an important
characteristic of a crime, that "ordinarily, evil
intent must unite with an unlawful act for there to
be a crime," and accordingly, there can be no crime
when the criminal mind is wanting.35 Accepted in
this jurisdiction as material in crimes mala in se,36
mens rea has been defined before as "a guilty
mind, a guilty or wrongful purpose or criminal
intent,"37 and "essential for criminal liability."38 It
follows that the statutory definition of our mala in
se crimes must be able to supply what the mens rea
of the crime is, and indeed the U.S. Supreme Court
has comfortably held that "a criminal law that
contains no mens rea requirement infringes on
constitutionally protected rights."39 The criminal
statute must also provide for the overt acts that
constitute the crime. For a crime to exist in our
legal law, it is not enough that mens rea be shown;
there must also be an actus reus.40
It is from the actus reus and the mens rea, as they
find expression in the criminal statute, that the
felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is
extremely preferable that the language of the law
expressly provide when the felony is produced.
Without such provision, disputes would inevitably
ensue on the elemental question whether or not a
crime was committed, thereby presaging the
undesirable and legally dubious set-up under which
the judiciary is assigned the legislative role of
defining crimes. Fortunately, our Revised Penal
Code does not suffer from such infirmity. From the
statutory definition of any felony, a decisive
passage or term is embedded which attests when
the felony is produced by the acts of execution. For
example, the statutory definition of murder or
homicide expressly uses the phrase "shall kill
another," thus making it clear that the felony is
produced by the death of the victim, and
conversely, it is not produced if the victim
survives.
We next turn to the statutory definition of theft.
Under Article 308 of the Revised Penal Code, its
elements are spelled out as follows:
Art. 308. Who are liable for theft.— Theft is
committed by any person who, with intent to gain
but without violence against or intimidation of
persons nor force upon things, shall take personal
property of another without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property,
shall fail to deliver the same to the local authorities
or to its owner;
2. Any person who, after having maliciously
damaged the property of another, shall remove or
make use of the fruits or object of the damage
caused by him; and
3. Any person who shall enter an inclosed estate or
a field where trespass is forbidden or which
belongs to another and without the consent of its
owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.
Article 308 provides for a general definition of
theft, and three alternative and highly idiosyncratic
means by which theft may be committed.41 In the
present discussion, we need to concern ourselves
only with the general definition since it was under
it that the prosecution of the accused was
undertaken and sustained. On the face of the
definition, there is only one operative act of
execution by the actor involved in theft ─ the
taking of personal property of another. It is also
clear from the provision that in order that such
taking may be qualified as theft, there must further
be present the descriptive circumstances that the
taking was with intent to gain; without force upon
things or violence against or intimidation of
persons; and it was without the consent of the
owner of the property.
Indeed, we have long recognized the following
elements of theft as provided for in Article 308 of
the Revised Penal Code, namely: (1) that there be
taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be
accomplished without the use of violence against
or intimidation of persons or force upon things.42
In his commentaries, Judge Guevarra traces the
history of the definition of theft, which under early
Roman law as defined by Gaius, was so broad
enough as to encompass "any kind of physical
handling of property belonging to another against
the will of the owner,"43 a definition similar to that
by Paulus that a thief "handles (touches, moves)
the property of another."44 However, with the
Institutes of Justinian, the idea had taken hold that
more than mere physical handling, there must
further be an intent of acquiring gain from the
object, thus: "[f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel
etiam usus ejus possessinisve."45 This requirement
of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal
laws, even as it has since been abandoned in Great
Britain.46
In Spanish law, animo lucrandi was compounded
with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the
concept of apoderamiento once had a controversial
interpretation and application. Spanish law had
already discounted the belief that mere physical
taking was constitutive of apoderamiento, finding
that it had to be coupled with "the intent to
appropriate the object in order to constitute
apoderamiento; and to appropriate means to
deprive the lawful owner of the thing."47
However, a conflicting line of cases decided by the
Court of Appeals ruled, alternatively, that there
must be permanency in the taking48 or an intent to
permanently deprive the owner of the stolen
property;49 or that there was no need for
permanency in the taking or in its intent, as the
mere temporary possession by the offender or
disturbance of the proprietary rights of the owner
already constituted apoderamiento.50 Ultimately,
as Justice Regalado notes, the Court adopted the
latter thought that there was no need of an intent to
permanently deprive the owner of his property to
constitute an unlawful taking.51
So long as the "descriptive" circumstances that
qualify the taking are present, including animo
lucrandi and apoderamiento, the completion of the
operative act that is the taking of personal property
of another establishes, at least, that the
transgression went beyond the attempted stage. As
applied to the present case, the moment petitioner
obtained physical possession of the cases of
detergent and loaded them in the pushcart, such
seizure motivated by intent to gain, completed
without need to inflict violence or intimidation
against persons nor force upon things, and
accomplished without the consent of the SM Super
Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would
have afforded him.
On the critical question of whether it was
consummated or frustrated theft, we are obliged to
apply Article 6 of the Revised Penal Code to
ascertain the answer. Following that provision, the
theft would have been frustrated only, once the acts
committed by petitioner, if ordinarily sufficient to
produce theft as a consequence, "do not produce
[such theft] by reason of causes independent of the
will of the perpetrator." There are clearly two
determinative factors to consider: that the felony is
not "produced," and that such failure is due to
causes independent of the will of the perpetrator.
The second factor ultimately depends on the
evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition
attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not
produced," despite the commission of all the acts
of execution.
So, in order to ascertain whether the theft is
consummated or frustrated, it is necessary to
inquire as to how exactly is the felony of theft
"produced." Parsing through the statutory
definition of theft under Article 308, there is one
apparent answer provided in the language of the
law — that theft is already "produced" upon the
"tak[ing of] personal property of another without
the latter’s consent."
U.S. v. Adiao53 apparently supports that notion.
Therein, a customs inspector was charged with
theft after he abstracted a leather belt from the
baggage of a foreign national and secreted the item
in his desk at the Custom House. At no time was
the accused able to "get the merchandise out of the
Custom House," and it appears that he "was under
observation during the entire transaction."54 Based
apparently on those two circumstances, the trial
court had found him guilty, instead, of frustrated
theft. The Court reversed, saying that neither
circumstance was decisive, and holding instead
that the accused was guilty of consummated theft,
finding that "all the elements of the completed
crime of theft are present."55 In support of its
conclusion that the theft was consummated, the
Court cited three (3) decisions of the Supreme
Court of Spain, the discussion of which we
replicate below:
The defendant was charged with the theft of some
fruit from the land of another. As he was in the act
of taking the fruit[,] he was seen by a policeman,
yet it did not appear that he was at that moment
caught by the policeman but sometime later. The
court said: "[x x x] The trial court did not err [x x x
] in considering the crime as that of consummated
theft instead of frustrated theft inasmuch as
nothing appears in the record showing that the
policemen who saw the accused take the fruit from
the adjoining land arrested him in the act and thus
prevented him from taking full possession of the
thing stolen and even its utilization by him for an
interval of time." (Decision of the Supreme Court
of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party
while the latter was hearing mass in a church. The
latter on account of the solemnity of the act,
although noticing the theft, did not do anything to
prevent it. Subsequently, however, while the
defendant was still inside the church, the offended
party got back the money from the defendant. The
court said that the defendant had performed all the
acts of execution and considered the theft as
consummated. (Decision of the Supreme Court of
Spain, December 1, 1897.)
The defendant penetrated into a room of a certain
house and by means of a key opened up a case, and
from the case took a small box, which was also
opened with a key, from which in turn he took a
purse containing 461 reales and 20 centimos, and
then he placed the money over the cover of the
case; just at this moment he was caught by two
guards who were stationed in another room near-
by. The court considered this as consummated
robbery, and said: "[x x x] The accused [x x x]
having materially taken possession of the money
from the moment he took it from the place where it
had been, and having taken it with his hands with
intent to appropriate the same, he executed all the
acts necessary to constitute the crime which was
thereby produced; only the act of making use of
the thing having been frustrated, which, however,
does not go to make the elements of the
consummated crime." (Decision of the Supreme
Court of Spain, June 13, 1882.)56
It is clear from the facts of Adiao itself, and the
three (3) Spanish decisions cited therein, that the
criminal actors in all these cases had been able to
obtain full possession of the personal property
prior to their apprehension. The interval between
the commission of the acts of theft and the
apprehension of the thieves did vary, from
"sometime later" in the 1898 decision; to the very
moment the thief had just extracted the money in a
purse which had been stored as it was in the 1882
decision; and before the thief had been able to
spirit the item stolen from the building where the
theft took place, as had happened in Adiao and the
1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the
thefts in each of those cases was consummated by
the actual possession of the property belonging to
another.
In 1929, the Court was again confronted by a claim
that an accused was guilty only of frustrated rather
than consummated theft. The case is People v.
Sobrevilla,57 where the accused, while in the
midst of a crowd in a public market, was already
able to abstract a pocketbook from the trousers of
the victim when the latter, perceiving the theft,
"caught hold of the [accused]’s shirt-front, at the
same time shouting for a policeman; after a
struggle, he recovered his pocket-book and let go
of the defendant, who was afterwards caught by a
policeman."58 In rejecting the contention that only
frustrated theft was established, the Court simply
said, without further comment or elaboration:
We believe that such a contention is groundless.
The [accused] succeeded in taking the pocket-
book, and that determines the crime of theft. If the
pocket-book was afterwards recovered, such
recovery does not affect the [accused’s] criminal
liability, which arose from the [accused] having
succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and
the Spanish Supreme Court cases cited in the latter,
in that the fact that the offender was able to
succeed in obtaining physical possession of the
stolen item, no matter how momentary, was able to
consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court
decisions cited therein contradict the position of
petitioner in this case. Yet to simply affirm without
further comment would be disingenuous, as there
is another school of thought on when theft is
consummated, as reflected in the Diño and Flores
decisions.
Diño was decided by the Court of Appeals in 1949,
some 31 years after Adiao and 15 years before
Flores. The accused therein, a driver employed by
the United States Army, had driven his truck into
the port area of the South Harbor, to unload a
truckload of materials to waiting U.S. Army
personnel. After he had finished unloading,
accused drove away his truck from the Port, but as
he was approaching a checkpoint of the Military
Police, he was stopped by an M.P. who inspected
the truck and found therein three boxes of army
rifles. The accused later contended that he had
been stopped by four men who had loaded the
boxes with the agreement that they were to meet
him and retrieve the rifles after he had passed the
checkpoint. The trial court convicted accused of
consummated theft, but the Court of Appeals
modified the conviction, holding instead that only
frustrated theft had been committed.
In doing so, the appellate court pointed out that the
evident intent of the accused was to let the boxes
of rifles "pass through the checkpoint, perhaps in
the belief that as the truck had already unloaded its
cargo inside the depot, it would be allowed to pass
through the check point without further
investigation or checking."60 This point was
deemed material and indicative that the theft had
not been fully produced, for the Court of Appeals
pronounced that "the fact determinative of
consummation is the ability of the thief to dispose
freely of the articles stolen, even if it were more or
less momentary."61 Support for this proposition
was drawn from a decision of the Supreme Court
of Spain dated 24 January 1888 (1888 decision),
which was quoted as follows:
Considerando que para que el apoderamiento de la
cosa sustraida sea determinate de la consumacion
del delito de hurto es preciso que so haga en
circunstancias tales que permitan al sustractor la
libre disposicion de aquella, siquiera sea mas o
menos momentaneamente, pues de otra suerte,
dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda
su extension, sin materializar demasiado el acto de
tomar la cosa ajena.62
Integrating these considerations, the Court of
Appeals then concluded:
This court is of the opinion that in the case at bar,
in order to make the booty subject to the control
and disposal of the culprits, the articles stolen must
first be passed through the M.P. check point, but
since the offense was opportunely discovered and
the articles seized after all the acts of execution had
been performed, but before the loot came under the
final control and disposal of the looters, the offense
can not be said to have been fully consummated, as
it was frustrated by the timely intervention of the
guard. The offense committed, therefore, is that of
frustrated theft.63
Diño thus laid down the theory that the ability of
the actor to freely dispose of the items stolen at the
time of apprehension is determinative as to
whether the theft is consummated or frustrated.
This theory was applied again by the Court of
Appeals some 15 years later, in Flores, a case
which according to the division of the court that
decided it, bore "no substantial variance between
the circumstances [herein] and in [Diño]."64 Such
conclusion is borne out by the facts in Flores. The
accused therein, a checker employed by the Luzon
Stevedoring Company, issued a delivery receipt for
one empty sea van to the truck driver who had
loaded the purportedly empty sea van onto his
truck at the terminal of the stevedoring company.
The truck driver proceeded to show the delivery
receipt to the guard on duty at the gate of the
terminal. However, the guards insisted on
inspecting the van, and discovered that the "empty"
sea van had actually contained other merchandise
as well.65 The accused was prosecuted for theft
qualified by abuse of confidence, and found
himself convicted of the consummated crime.
Before the Court of Appeals, accused argued in the
alternative that he was guilty only of attempted
theft, but the appellate court pointed out that there
was no intervening act of spontaneous desistance
on the part of the accused that "literally frustrated
the theft." However, the Court of Appeals,
explicitly relying on Diño, did find that the
accused was guilty only of frustrated, and not
consummated, theft.
As noted earlier, the appellate court admitted it
found "no substantial variance" between Diño and
Flores then before it. The prosecution in Flores had
sought to distinguish that case from Diño, citing a
"traditional ruling" which unfortunately was not
identified in the decision itself. However, the Court
of Appeals pointed out that the said "traditional
ruling" was qualified by the words "is placed in a
situation where [the actor] could dispose of its
contents at once."66 Pouncing on this qualification,
the appellate court noted that "[o]bviously, while
the truck and the van were still within the
compound, the petitioner could not have disposed
of the goods ‘at once’." At the same time, the
Court of Appeals conceded that "[t]his is entirely
different from the case where a much less bulk and
more common thing as money was the object of
the crime, where freedom to dispose of or make
use of it is palpably less restricted,"67 though no
further qualification was offered what the effect
would have been had that alternative circumstance
been present instead.
Synthesis of the Diño and Flores rulings is in
order. The determinative characteristic as to
whether the crime of theft was produced is the
ability of the actor "to freely dispose of the articles
stolen, even if it were only momentary." Such
conclusion was drawn from an 1888 decision of
the Supreme Court of Spain which had pronounced
that in determining whether theft had been
consummated, "es preciso que so haga en
circunstancias tales que permitan al sustractor de
aquella, siquiera sea mas o menos
momentaneamente." The qualifier "siquiera sea
mas o menos momentaneamente" proves another
important consideration, as it implies that if the
actor was in a capacity to freely dispose of the
stolen items before apprehension, then the theft
could be deemed consummated. Such circumstance
was not present in either Diño or Flores, as the
stolen items in both cases were retrieved from the
actor before they could be physically extracted
from the guarded compounds from which the items
were filched. However, as implied in Flores, the
character of the item stolen could lead to a
different conclusion as to whether there could have
been "free disposition," as in the case where the
chattel involved was of "much less bulk and more
common x x x, [such] as money x x x."68
In his commentaries, Chief Justice Aquino makes
the following pointed observation on the import of
the Diño ruling:
There is a ruling of the Court of Appeals that theft
is consummated when the thief is able to freely
dispose of the stolen articles even if it were more
or less momentary. Or as stated in another case[69
], theft is consummated upon the voluntary and
malicious taking of property belonging to another
which is realized by the material occupation of the
thing whereby the thief places it under his control
and in such a situation that he could dispose of it at
once. This ruling seems to have been based on
Viada’s opinion that in order the theft may be
consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino,
concluding from Adiao and other cases, also states
that "[i]n theft or robbery the crime is
consummated after the accused had material
possession of the thing with intent to appropriate
the same, although his act of making use of the
thing was frustrated."72
There are at least two other Court of Appeals
rulings that are at seeming variance with the Diño
and Flores rulings. People v. Batoon73 involved an
accused who filled a container with gasoline from
a petrol pump within view of a police detective,
who followed the accused onto a passenger truck
where the arrest was made. While the trial court
found the accused guilty of frustrated qualified
theft, the Court of Appeals held that the accused
was guilty of consummated qualified theft, finding
that "[t]he facts of the cases of U.S. [v.] Adiao x x
x and U.S. v. Sobrevilla x x x indicate that actual
taking with intent to gain is enough to consummate
the crime of theft."74
In People v. Espiritu,75 the accused had removed
nine pieces of hospital linen from a supply depot
and loaded them onto a truck. However, as the
truck passed through the checkpoint, the stolen
items were discovered by the Military Police
running the checkpoint. Even though those facts
clearly admit to similarity with those in Diño, the
Court of Appeals held that the accused were guilty
of consummated theft, as the accused "were able to
take or get hold of the hospital linen and that the
only thing that was frustrated, which does not
constitute any element of theft, is the use or benefit
that the thieves expected from the commission of
the offense."76
In pointing out the distinction between Diño and
Espiritu, Reyes wryly observes that "[w]hen the
meaning of an element of a felony is controversial,
there is bound to arise different rulings as to the
stage of execution of that felony."77 Indeed, we
can discern from this survey of jurisprudence that
the state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed
foundational basis of the concept of frustrated theft
itself, the question can even be asked whether there
is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an
accused was guilty of frustrated, and not
consummated, theft. As we undertake this inquiry,
we have to reckon with the import of this Court’s
1984 decision in Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut
plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering
and tying some coconuts. The accused were
surprised by the owner within the plantation as
they were carrying with them the coconuts they
had gathered. The accused fled the scene, dropping
the coconuts they had seized, and were
subsequently arrested after the owner reported the
incident to the police. After trial, the accused were
convicted of qualified theft, and the issue they
raised on appeal was that they were guilty only of
simple theft. The Court affirmed that the theft was
qualified, following Article 310 of the Revised
Penal Code,79 but further held that the accused
were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that
the issue of whether the theft was consummated or
frustrated was raised by any of the parties. What
does appear, though, is that the disposition of that
issue was contained in only two sentences, which
we reproduce in full:
However, the crime committed is only frustrated
qualified theft because petitioners were not able to
perform all the acts of execution which should
have produced the felony as a consequence. They
were not able to carry the coconuts away from the
plantation due to the timely arrival of the owner.80
No legal reference or citation was offered for this
averment, whether Diño, Flores or the Spanish
authorities who may have bolstered the conclusion.
There are indeed evident problems with this
formulation in Empelis.
Empelis held that the crime was only frustrated
because the actors "were not able to perform all the
acts of execution which should have produced the
felon as a consequence."81 However, per Article 6
of the Revised Penal Code, the crime is frustrated
"when the offender performs all the acts of
execution," though not producing the felony as a
result. If the offender was not able to perform all
the acts of execution, the crime is attempted,
provided that the non-performance was by reason
of some cause or accident other than spontaneous
desistance. Empelis concludes that the crime was
frustrated because not all of the acts of execution
were performed due to the timely arrival of the
owner. However, following Article 6 of the
Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted,
especially given that the acts were not performed
because of the timely arrival of the owner, and not
because of spontaneous desistance by the
offenders.
For these reasons, we cannot attribute weight to
Empelis as we consider the present petition. Even
if the two sentences we had cited actually aligned
with the definitions provided in Article 6 of the
Revised Penal Code, such passage bears no
reflection that it is the product of the considered
evaluation of the relevant legal or jurisprudential
thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so
settled it required no further explication.
Notably, Empelis has not since been reaffirmed by
the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can contribute
to our present debate, except for the bare fact that it
proves that the Court had once deliberately found
an accused guilty of frustrated theft. Even if
Empelis were considered as a precedent for
frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that
inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an
insurmountable given that frustrated theft is viable
in this jurisdiction. Considering the flawed
reasoning behind its conclusion of frustrated theft,
it cannot present any efficacious argument to
persuade us in this case. Insofar as Empelis may
imply that convictions for frustrated theft are
beyond cavil in this jurisdiction, that decision is
subject to reassessment.
V.
At the time our Revised Penal Code was enacted in
1930, the 1870 Codigo Penal de España was then
in place. The definition of the crime of theft, as
provided then, read as follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o
intimidación en las personas ni fuerza en las cosas,
toman las cosas muebles ajenas sin la voluntad de
su dueño.
2. Los que encontrándose una cosa perdida y
sabiendo quién es su dueño se la apropriaren co
intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los
frutos u objeto del daño causado, salvo los casos
previstos en los artίculos 606, núm. 1.0; 607, núms,
1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613; Segundo
párrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal
that the aforecited Spanish Supreme Court
decisions were handed down. However, the said
code would be revised again in 1932, and several
times thereafter. In fact, under the Codigo Penal
Español de 1995, the crime of theft is now simply
defined as "[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de
su dueño será castigado"82
Notice that in the 1870 and 1995 definition of theft
in the penal code of Spain, "la libre disposicion" of
the property is not an element or a statutory
characteristic of the crime. It does appear that the
principle originated and perhaps was fostered in
the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-
answer form in his 1926 commentaries on the 1870
Codigo Penal de España. Therein, he raised at least
three questions for the reader whether the crime of
frustrated or consummated theft had occurred. The
passage cited in Diño was actually utilized by
Viada to answer the question whether frustrated or
consummated theft was committed "[e]l que en el
momento mismo de apoderarse de la cosa ajena,
viéndose sorprendido, la arroja al suelo."83 Even
as the answer was as stated in Diño, and was
indeed derived from the 1888 decision of the
Supreme Court of Spain, that decision’s factual
predicate occasioning the statement was apparently
very different from Diño, for it appears that the
1888 decision involved an accused who was
surprised by the employees of a haberdashery as he
was abstracting a layer of clothing off a
mannequin, and who then proceeded to throw
away the garment as he fled.84
Nonetheless, Viada does not contest the notion of
frustrated theft, and willingly recites decisions of
the Supreme Court of Spain that have held to that
effect.85 A few decades later, the esteemed
Eugenio Cuello Calón pointed out the inconsistent
application by the Spanish Supreme Court with
respect to frustrated theft.
Hay frustración cuando los reos fueron
sorprendidos por las guardias cuando llevaban los
sacos de harino del carro que los conducia a otro
que tenían preparado, 22 febrero 1913; cuando el
resultado no tuvo efecto por la intervención de la
policia situada en el local donde se realizó la
sustracción que impidió pudieran los reos disponer
de lo sustraído, 30 de octubre 1950. Hay "por lo
menos" frustración, si existe apoderamiento, pero
el culpale no llega a disponer de la cosa, 12 abril
1930; hay frustración "muy próxima" cuando el
culpable es detenido por el perjudicado acto
seguido de cometer la sustracción, 28 febrero
1931. Algunos fallos han considerado la existencia
de frustración cuando, perseguido el culpable o
sorprendido en el momento de llevar los efectos
hurtados, los abandona, 29 mayo 1889, 22 febrero
1913, 11 marzo 1921; esta doctrina no es
admissible, éstos, conforme a lo antes expuesto,
son hurtos consumados.86
Ultimately, Cuello Calón attacked the very idea
that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera
que el hurto se consuma cuando la cosa queda de
hecho a la disposición del agente. Con este criterio
coincide la doctrina sentada últimamente porla
jurisprudencia española que generalmente
considera consumado el hurto cuando el culpable
coge o aprehende la cosa y ésta quede por tiempo
más o menos duradero bajo su poder. El hecho de
que éste pueda aprovecharse o no de lo hurtado es
indiferente. El delito no pierde su carácter de
consumado aunque la cosa hurtada sea devuelta
por el culpable o fuere recuperada. No se concibe
la frustración, pues es muy dificil que el que hace
cuanto es necesario para la consumación del hurto
no lo consume efectivamente, los raros casos que
nuestra jurisprudencia, muy vacilante, declara
hurtos frustrados son verdaderos delitos
consumados.87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly
ignored. Unlike Viada, who was content with
replicating the Spanish Supreme Court decisions
on the matter, Cuello Calón actually set forth his
own thought that questioned whether theft could
truly be frustrated, since "pues es muy dificil que el
que hace cuanto es necesario para la consumación
del hurto no lo consume efectivamente." Otherwise
put, it would be difficult to foresee how the
execution of all the acts necessary for the
completion of the crime would not produce the
effect of theft.
This divergence of opinion convinces us, at least,
that there is no weighted force in scholarly thought
that obliges us to accept frustrated theft, as
proposed in Diño and Flores. A final ruling by the
Court that there is no crime of frustrated theft in
this jurisdiction will not lead to scholastic pariah,
for such a submission is hardly heretical in light of
Cuello Calón’s position.
Accordingly, it would not be intellectually
disingenuous for the Court to look at the question
from a fresh perspective, as we are not bound by
the opinions of the respected Spanish
commentators, conflicting as they are, to accept
that theft is capable of commission in its frustrated
stage. Further, if we ask the question whether there
is a mandate of statute or precedent that must
compel us to adopt the Diño and Flores doctrines,
the answer has to be in the negative. If we did so, it
would arise not out of obeisance to an inexorably
higher command, but from the exercise of the
function of statutory interpretation that comes as
part and parcel of judicial review, and a function
that allows breathing room for a variety of
theorems in competition until one is ultimately
adopted by this Court.
V.
The foremost predicate that guides us as we
explore the matter is that it lies in the province of
the legislature, through statute, to define what
constitutes a particular crime in this jurisdiction. It
is the legislature, as representatives of the
sovereign people, which determines which acts or
combination of acts are criminal in nature. Judicial
interpretation of penal laws should be aligned with
what was the evident legislative intent, as
expressed primarily in the language of the law as it
defines the crime. It is Congress, not the courts,
which is to define a crime, and ordain its
punishment.88 The courts cannot arrogate the
power to introduce a new element of a crime which
was unintended by the legislature, or redefine a
crime in a manner that does not hew to the
statutory language. Due respect for the prerogative
of Congress in defining crimes/felonies constrains
the Court to refrain from a broad interpretation of
penal laws where a "narrow interpretation" is
appropriate. "The Court must take heed of
language, legislative history and purpose, in order
to strictly determine the wrath and breath of the
conduct the law forbids."89
With that in mind, a problem clearly emerges with
the Diño/Flores dictum. The ability of the offender
to freely dispose of the property stolen is not a
constitutive element of the crime of theft. It finds
no support or extension in Article 308, whether as
a descriptive or operative element of theft or as the
mens rea or actus reus of the felony. To restate
what this Court has repeatedly held: the elements
of the crime of theft as provided for in Article 308
of the Revised Penal Code are: (1) that there be
taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be
accomplished without the use of violence against
or intimidation of persons or force upon things.90
Such factor runs immaterial to the statutory
definition of theft, which is the taking, with intent
to gain, of personal property of another without the
latter’s consent. While the Diño/Flores dictum is
considerate to the mindset of the offender, the
statutory definition of theft considers only the
perspective of intent to gain on the part of the
offender, compounded by the deprivation of
property on the part of the victim.
For the purpose of ascertaining whether theft is
susceptible of commission in the frustrated stage,
the question is again, when is the crime of theft
produced? There would be all but certain
unanimity in the position that theft is produced
when there is deprivation of personal property due
to its taking by one with intent to gain. Viewed
from that perspective, it is immaterial to the
product of the felony that the offender, once having
committed all the acts of execution for theft, is able
or unable to freely dispose of the property stolen
since the deprivation from the owner alone has
already ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquino’s
commentaries, as earlier cited, that "[i]n theft or
robbery the crime is consummated after the
accused had material possession of the thing with
intent to appropriate the same, although his act of
making use of the thing was frustrated."91
It might be argued, that the ability of the offender
to freely dispose of the property stolen delves into
the concept of "taking" itself, in that there could be
no true taking until the actor obtains such degree of
control over the stolen item. But even if this were
correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for
it would mean that not all the acts of execution
have not been completed, the "taking not having
been accomplished." Perhaps this point could serve
as fertile ground for future discussion, but our
concern now is whether there is indeed a crime of
frustrated theft, and such consideration proves
ultimately immaterial to that question. Moreover,
such issue will not apply to the facts of this
particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was
completed in this case. With intent to gain, he
acquired physical possession of the stolen cases of
detergent for a considerable period of time that he
was able to drop these off at a spot in the parking
lot, and long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful
taking, or apoderamiento, is deemed complete
from the moment the offender gains possession of
the thing, even if he has no opportunity to dispose
of the same.92 And long ago, we asserted in
People v. Avila:93
x x x [T]he most fundamental notion in the crime
of theft is the taking of the thing to be appropriated
into the physical power of the thief, which idea is
qualified by other conditions, such as that the
taking must be effected animo lucrandi and
without the consent of the owner; and it will be
here noted that the definition does not require that
the taking should be effected against the will of the
owner but merely that it should be without his
consent, a distinction of no slight importance.94
Insofar as we consider the present question,
"unlawful taking" is most material in this respect.
Unlawful taking, which is the deprivation of one’s
personal property, is the element which produces
the felony in its consummated stage. At the same
time, without unlawful taking as an act of
execution, the offense could only be attempted
theft, if at all.
With these considerations, we can only conclude
that under Article 308 of the Revised Penal Code,
theft cannot have a frustrated stage. Theft can only
be attempted or consummated.
Neither Diño nor Flores can convince us otherwise.
Both fail to consider that once the offenders therein
obtained possession over the stolen items, the
effect of the felony has been produced as there has
been deprivation of property. The presumed
inability of the offenders to freely dispose of the
stolen property does not negate the fact that the
owners have already been deprived of their right to
possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption
of the rule —that the inability of the offender to
freely dispose of the stolen property frustrates the
theft — would introduce a convenient defense for
the accused which does not reflect any legislated
intent,95 since the Court would have carved a
viable means for offenders to seek a mitigated
penalty under applied circumstances that do not
admit of easy classification. It is difficult to
formulate definite standards as to when a stolen
item is susceptible to free disposal by the thief.
Would this depend on the psychological belief of
the offender at the time of the commission of the
crime, as implied in Diño?
Or, more likely, the appreciation of several classes
of factual circumstances such as the size and
weight of the property, the location of the property,
the number and identity of people present at the
scene of the crime, the number and identity of
people whom the offender is expected to encounter
upon fleeing with the stolen property, the manner
in which the stolen item had been housed or stored;
and quite frankly, a whole lot more. Even the
fungibility or edibility of the stolen item would
come into account, relevant as that would be on
whether such property is capable of free disposal at
any stage, even after the taking has been
consummated.
All these complications will make us lose sight of
the fact that beneath all the colorful detail, the
owner was indeed deprived of property by one who
intended to produce such deprivation for reasons of
gain. For such will remain the presumed fact if
frustrated theft were recognized, for therein, all of
the acts of execution, including the taking, have
been completed. If the facts establish the non-
completion of the taking due to these peculiar
circumstances, the effect could be to downgrade
the crime to the attempted stage, as not all of the
acts of execution have been performed. But once
all these acts have been executed, the taking has
been completed, causing the unlawful deprivation
of property, and ultimately the consummation of
the theft.
Maybe the Diño/Flores rulings are, in some degree,
grounded in common sense. Yet they do not align
with the legislated framework of the crime of theft.
The Revised Penal Code provisions on theft have
not been designed in such fashion as to
accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly
allows that the "free disposition of the items
stolen" is in any way determinative of whether the
crime of theft has been produced. Diño itself did
not rely on Philippine laws or jurisprudence to
bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for
legal support. These cases do not enjoy the weight
of stare decisis, and even if they did, their
erroneous appreciation of our law on theft leave
them susceptible to reversal. The same holds true
of Empilis, a regrettably stray decision which has
not since found favor from this Court.
We thus conclude that under the Revised Penal
Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal on
our acceptance of the Diño and Flores rulings, his
petition must be denied, for we decline to adopt
said rulings in our jurisdiction. That it has taken all
these years for us to recognize that there can be no
frustrated theft under the Revised Penal Code does
not detract from the correctness of this conclusion.
It will take considerable amendments to our
Revised Penal Code in order that frustrated theft
may be recognized. Our deference to Viada yields
to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs
against petitioner.
SO ORDERED.
G.R. No. 123070 April 14, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
CASIANO BUNTAG alias "CIANO" and
DIEGO BONGO, appellants.
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision1 of the
Regional Trial Court of Tagbilaran City, Branch 3,
in Criminal Case No. 7729, convicting the
appellants Casiano Buntag alias "Ciano" and Diego
Bongo of murder, sentencing each of them to
reclusion perpetua, and directing them to jointly
indemnify the heirs of the victim Berno Georg Otte
the sum of P50,000 as moral damages.
The Indictment
The appellants were charged with murder in an
Information, the accusatory portion of which reads:
That on or about the 9th day of February, 1992, in
the municipality of Panglao, province of Bohol,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with
intent to kill and without any justifiable cause,
conspiring, confederating and mutually helping
each other, with treachery by the suddenness and
unexpectedness of the acts, the victim who was
unarmed being then unaware thereof, did then and
there willfully, unlawfully and feloniously attack,
assault and stab with the use of a bladed instrument
one Berno Georg Otte (a German national), hitting
and injuring the latter on his chest, thereby causing
his immediate death; to the damage and prejudice
of the heirs of the victim in the amount to be
proved during the trial.
Acts committed contrary to the provisions of Art.
248 in relation to Art. 14 all of the Revised Penal
Code as amended.2
The Case for the Prosecution
Before February 8, 1992, Berno Georg Otte,3 a
German national and a tourist, checked in at the
Alona Ville Beach Resort located in Panglao,
Bohol. The resort manager, Herma Clarabal
Bonga,4 assigned Otte to Room No. 95 and gave
the latter his room key.
On February 8, 1992, Otte took his dinner at the
resort’s restaurant. Bonga talked to him regarding
the disco which was about to unfold that night in
lower Tawala near the Catibo Chapel.6
At about 10:00 p.m., Bonga went to the disco party
where she saw Otte seated at one of the tables.7
She noticed that he had some companions whom
she failed to recognize.8
Isidro A. Mihangos, a 19-year-old student, and
Benigno "Ninoy" Guigue were also at the disco. At
around 2:00 a.m. of February 9, 1992, Mihangos
and Guigue decided to call it a night and walked
home, with their respective bicycles at their sides.9
At the crossing to the Alona Beach, they saw a
man lying on the road but did not recognize him.
They walked past the prostrate man. When they
were about twenty-five meters10 away from the
body by the road, they met Casiano Buntag and
Diego Bongo, their barriomates.11 11 Suddenly,
Buntag and Bongo jointly and simultaneously
lunged at them. Afraid for their lives, Mihangos
and Guigue fled and sought refuge in the house of
Guigue’s uncle, Aquilino Bongo.12 12 In the
process, they left their bicycles behind. Aquilino
Bongo then accompanied Mihangos and Guigue to
where they left their bicycles. Mihangos and
Guigue retrieved their bicycles, but Buntag and
Bongo were no longer there.
At around 5:30 a.m. of February 9, 1992, the
police station of Panglao, Bohol, received a report
by radio call about a man, believed to be dead,
lying at the side of the crossroad near the Alona
Beach.13 13 PO1 Yolando E. Hormachuelos,
together with PO1 Mauro Sumaylo and PO1
Dominie Ragusta,14 14 proceeded to the crime
scene. They were accompanied by the Municipal
Health Officer, Dr. Julita L. Cogo, who confirmed
that the man died due to a stab wound.15 15 The
policemen found a hunting knife about one meter
away from the body.16 16 Constancio Geoivencal
took pictures of the cadaver. Hormachuelos took
custody of the knife.17 17
In the course of their investigation, the policemen
learned that Mihangos and Guigue had seen the
dead body by the road. Hormachuelos fetched
Mihangos and Guigue from their houses and
brought them to the road where the body of Otte
was found. Mihangos and Guigue narrated how
they found the body at around 2:00 a.m. that day,
as well as their encounter with Bongo and Buntag.
At about 1:00 p.m. that day, Hormachuelos took
appellant Bongo to the police station and
investigated him without the assistance of counsel.
Bongo admitted that he took Otte’s key to Room
No. 9 and hid it near their house. He then drew a
sketch showing the place where he hid the key, at
the back of their house. Bongo also admitted that
he was with appellant Casiano Buntag. The
policemen went to Bongo’s house and recovered
the key to Otte’s room as indicated by Bongo in his
sketch.
At 2:00 p.m., Guigue arrived at the police station
and gave his statement to Hormachuelos.18 18 At
3:00 p.m., Mihangos gave his statement to SPO1
Proculo Bonao.19 19 Hormachuelos then took
custody of Casiano Buntag and brought him to the
police station where he was asked about his
involvement in the killing of Otte without the
assistance of counsel. However, Buntag opted to
keep silent. When apprised that Diego Bongo had
implicated him, Buntag, this time with the
assistance of his counsel, Atty. Nerio G. Zamora,
gave a statement on February 13, 1992 to a police
investigator. He stated that at 1:00 a.m. on
February 9, 1992, he was walking back home from
the disco place where he caught up with Diego
Bongo and Otte at the crossing of Alona Beach. He
saw Bongo poke a knife at Otte. Bongo then
ordered him to box Otte but he refused, and moved
back about three meters. Bongo himself then boxed
Otte three times on the face. When Otte fell to the
ground, Bongo stabbed him on the chest. Buntag
also stated that he then ran back home, but Bongo
followed him and cautioned him not to reveal the
incident to anybody or else he would be
implicated.20 Buntag subscribed and swore to the
truth of his statement on February 21, 1992 before
Judge Antonio Sarce of the Municipal Circuit Trial
Court.
In the meantime, Municipal Health Officer Dr.
Julita Lood-Cogo performed an autopsy on the
cadaver of Otte and submitted her Post-Mortem
Report which contained the following findings:
Stab wound, anterior chest, right, at the level of the
4th rib, approx. 2 cms. x 1 cm. in size, with a depth
of approx. 12 cms., directed upwards and medially,
with a complete fracture of the 4th rib, right,
involving a portion of the right lung and base of
the heart.
Cause of death:
CARDIORESPIRATORY ARREST DUE TO
HEMORRHAGE, SECONDARY TO STAB
WOUND, ANTERIOR CHEST, RIGHT.21
On March 7, 1992, a criminal complaint for
murder was filed against appellants Bongo and
Buntag with the Municipal Circuit Trial Court.
Attached to the records was Buntag’s sworn
statement dated February 21, 1992. Only appellant
Bongo submitted his counter-affidavit on February
27, 1992, subscribed and sworn to before Judge
Antonio Sarce,22 where he confirmed (a) Buntag’s
account in his sworn statement before Judge Sarce
that they were with Otte at 1:00 a.m. on February
9, 1992 at the crossing towards Alona Beach
Resort, and (b) that he was armed with a hunting
knife. He further stated therein that while at the
crossing, Buntag and Otte, who were both drunk,
had an altercation and that he tried to pacify them
but in the process, Buntag pulled out his (Bongo’s)
hunting knife from his waist and stabbed Otte with
it.23
After the requisite preliminary investigation, the
MCTC issued a resolution finding probable cause
against the appellants for murder and issued
warrants for their arrest. The court found Buntag’s
sworn statement and Bongo’s counter-affidavit
self-serving.
On June 4, 1992, the day of the appellant’s
arraignment in the Regional Trial Court, appellant
Buntag, through counsel, Atty. Nerio G. Zamora,
filed a "Motion to Discharge (him) to be a Witness
for the Prosecution," alleging inter alia:
1) That there is absolute necessity for the
testimony of said accused whose discharge is
requested;
2) That there is no other direct evidence available
for the proper prosecution of the offense
committed, except the testimony of said accused,
as can be shown by the affidavit of said accused in
relation to the affidavits or sworn statements of
Ponciano Horcerada, Isidro Mihangos, Benigno
Guigue, Alfredo Guioguio, and PO1 Yolando [E.]
Hormachuelos;
3) That the testimony of herein accused can be
substantially corroborated in its material points;
4) That the said accused does not appear to be the
most guilty; and
5) That the said accused has not at any time been
convicted of any offense involving moral
turpitude;
6) That herein accused-movant hereby expresses
his consent to be a witness for the government.24
However, the prosecution opposed the motion on
the ground that both accused were equally guilty.
On June 8, 1992, the court issued an Order denying
the motion, and the appellants, assisted by their
respective counsels, entered pleas of not guilty.25
During the trial, the prosecution presented Judge
Antonio G. Sarce who testified that he conducted
the preliminary examination of the case and
identified both Buntag’s sworn statement and
Bongo’s counter-affidavit as subscribed and sworn
to before him (Judge Sarce) in his chambers.
After presenting all its witnesses, the prosecution
offered in evidence the hunting knife,26 the key to
room no. 9 of the beach resort,27 the sworn
statement of Buntag,28 and Bongo’s counter-
affidavit29 to prove that both appellants conspired
to kill the victim and that they in fact killed the
victim, and as part of the testimony of Judge Sarce.
Both appellants objected to the admission of the
said sworn statements and counter-affidavit solely
on the ground that the statements executed by one
accused was hearsay as to the other accused.30 By
way of rejoinder, the prosecution alleged as
follows:
1. That exhibits A, B, C, D, E and all its
submarkings are all relevant, pertinent and material
evidence against the accused in the above-entitled
case, therefore, admissible in evidence;
2. That exhibits F and all its submarkings are not
hearsay and do not violate the res inter alios acta
rule because they are principally offered against
accused Casiano Buntag, the affiant. The sworn
statement of Casiano Buntag is offered mainly as
admission of said accused Casiano Buntag;
3. That exhibits G and all its submarkings are not
hearsay and do not violate the res inter alios acta
rule because they are principally offered against
accused Diego Bongo, the affiant. The counter-
affidavit of Diego Bongo is offered mainly as
admission of said accused Diego Bongo.
WHEREFORE, it is most respectfully prayed of
this Honorable Court to admit in evidence all the
prosecution’s exhibits formally offered, for the
purpose for which they are being offered.31
The court admitted the documentary and object
evidence of the prosecution. The appellants opted
not to adduce any evidence on their behalf. Instead,
they filed, without leave of court, a "Motion to
Acquit." On June 7, 1993, the court issued an
Order denying the motion.
On August 14, 1995, the trial court rendered
judgment finding both the appellants guilty of the
crime charged. The decretal portion of the decision
of the trial court reads:
FROM THE FOREGOING PREMISES, this Court
renders judgment finding the two (2) accused
Casiano Buntag, alias Ciano, and Diego Bongo
guilty beyond reasonable doubt of the crime of
MURDER, an act committed contrary to the
provisions of Article 248, in relation to Article 14
of the Revised Penal Code, as amended, and does
hereby sentences each one of them to the penalty
of Reclusion Perpetua, with all the accusatory
penalties imposed by law.
There being no evidence disclosed as to the civil
liability, this Court, therefore, limits in providing
that the accused shall pay jointly the heirs of the
deceased Berno Georg Otte the amount of Fifty
Thousand Pesos (P50,000.00), by way of moral
damages, but without subsidiary imprisonment in
case of insolvency.
Without pronouncement as to costs.
SO ORDERED.32
The trial court relied, inter alia, on the sworn
statement of Buntag dated February 21, 199233
and the counter-affidavit of Bongo34 in convicting
them of the crime charged. Both the appellants
appealed the decision.
Although the appellants enumerated separate
issues in their briefs, the same may be synthesized
into three issues, namely: (a) whether or not the
prosecution proved beyond reasonable doubt that
they conspired to kill the victim Otte and that they,
in fact, killed him; (b) whether or not the
appellants are guilty of murder; and, (c) whether or
not the appellants are liable for moral damages to
the heirs of the victim. Appellant Bongo’s
contention that he was deprived of his right to due
process on his claim that the transcripts of the
respective testimonies of Dr. Julita Cogo, SPO1
Bonao and resort manager Bonga were not
transmitted to this Court is belied by the records. In
a Resolution dated September 11, 2000, the Court
declared that, based on the records, the transcripts
of stenographic notes in this case were already
complete.35
The appellants contend that the prosecution failed
to adduce direct or circumstantial evidence to
prove that they conspired to kill the victim, and
that they, in fact, killed him. They argue that
although the prosecution adduced circumstantial
evidence consisting of the extrajudicial sworn
statement of appellant Buntag and the counter-
affidavit of appellant Bongo, such evidence is
utterly insufficient to prove their guilt beyond
reasonable doubt.
Furthermore, according to the appellants, the
admissions made by appellant Buntag in his sworn
statement are binding on him only. Being
prejudicial to appellant Bongo, such admissions
are not inadmissible against the latter unless
repeated in open court by appellant Buntag, thus,
affording appellant Bongo the right to cross-
examination. Likewise, the admissions of appellant
Bongo in his sworn statement are inadmissible
against appellant Buntag, unless the former
repeated his admissions during the trial, affording
the latter an opportunity to cross-examine the said
appellant. The appellants further aver that since
they opted not to testify on their respective
statements, there was no opportunity for cross-
examination. Consequently, the admissions made
by one appellant in his sworn statement are hearsay
evidence against the other appellant, and vice
versa. In fine, the appellants contend that the trial
court should have acquitted them of the crime
charged.
We agree with the appellants that the prosecution
failed to adduce direct evidence that they conspired
to kill Otte and that they, in fact, stabbed and killed
the victim. However, we find and so hold, after an
incisive review of the records, that the prosecution
adduced sufficient circumstantial evidence to prove
the guilt of the appellants beyond reasonable
doubt.
Article 8 of the Revised Penal Code provides that
there is conspiracy when two or more persons
agree to commit a crime and decide to commit it.
Direct proof is not essential to establish
conspiracy, and may be inferred from the
collective acts of the accused before, during and
after the commission of the crime.36 Conspiracy
can be presumed from and proven by acts of the
accused themselves when the said acts point to a
joint purpose and design, concerted action and
community of interests.37 It is not necessary to
show that all the conspirators actually hit and
killed the victim. Conspiracy renders all the
conspirators as co-principals regardless of the
extent and character of their participation because
in contemplation of law, the act of one conspirator
is the act of all.38
The crime charged may also be proved by
circumstantial evidence, sometimes referred to as
indirect or presumptive evidence. Circumstantial
evidence is sufficient on which to anchor a
judgment of conviction if the following requisites
are established: (a) there is more than one
circumstance; (b) the facts from which the
inferences are derived have been established; and,
(c) the combination of all the circumstances is such
as to warrant a finding of guilt beyond reasonable
doubt.39
In People v. Delim,40 we held, thus:
The prosecution is burdened to prove the essential
events which constitute a compact mass of
circumstantial evidence, and the proof of each
being confirmed by the proof of the other, and all
without exception leading by mutual support to but
one conclusion: the guilt of the accused for the
offense charged. For circumstantial evidence to be
sufficient to support a conviction, all the
circumstances must be consistent with each other,
consistent with the hypothesis that 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. If the
prosecution adduced the requisite circumstantial
evidence to prove the guilt of the accused beyond
reasonable doubt, the burden of evidence shifts to
the accused to controvert the evidence of the
prosecution.41
In convicting the appellants of the crime charged,
the trial court relied not only on the counter-
affidavit of appellant Bongo42 and appellant
Buntag’s sworn statement,43 but also on the other
evidence on record, namely, the knife used in
killing the victim,44 the key to Otte’s room,45 and
the collective testimonies of the other witnesses of
the prosecution.
The general rule is that the extrajudicial confession
or admission of one accused is admissible only
against the said accused but is inadmissible against
the other accused.46 The same rule applies if the
extrajudicial confession is made by one accused
after the conspiracy has ceased. However, if the
declarant/admitter repeats in court his extrajudicial
confession during trial and the other accused is
accorded the opportunity to cross-examine the
admitter, such confession or admission is
admissible against both accused.47 The erstwhile
extrajudicial confession or admission when
repeated during the trial is transposed into judicial
admissions.
In criminal cases, an admission is something less
than a confession. It is but a statement of facts by
the accused, direct or implied, which do not
directly involve an acknowledgment of his guilt or
of his criminal intent to commit the offense with
which he is bound, against his interests, of the
evidence or truths charged.48 It is an
acknowledgment of some facts or circumstances
which, in itself, is insufficient to authorize a
conviction and which tends only to establish the
ultimate facts of guilt.49 A confession, on the other
hand, is an acknowledgment, in express terms, of
his guilt of the crime charged.50
In this case, appellant Buntag made extrajudicial
admissions against his interest in his sworn
statement, and not a confession. So did appellant
Bongo in his counter-affidavit. Such admissions in
the form of affidavits, made in the Municipal Trial
Court in the course of its preliminary investigation,
are high quality evidence.51 MCTC Judge Antonio
Sarce testified on the said sworn statement and
counter-affidavit and was cross-examined.52
Moreover, some of the extrajudicial inculpatory
admissions of one appellant are identical with
some of the extrajudicial inculpatory admissions of
the other, and vice versa. This corroborates and
confirms their veracity. Such admissions, made
without collusion, are akin to interlocking
extrajudicial confessions. They are admissible as
circumstantial evidence against the other appellant
implicated therein to show the probability of his
participation in the commission of the crime and as
corroborative evidence against him.53 The Court
rejects the appellants’ contention that they were
deprived of their right to cross-examine the other
on the latter’s admissions against the other.
Through their common counsel, they opted not to
testify and be cross-examined on their respective
statements by the prosecution. They opted to file a
motion to acquit. Besides, they had opportunity to
cross-examine Judge Sarce before whom they
swore to the truthfulness of their statements.54
In this case, the prosecution adduced the following
circumstantial evidence which constitutes proof
beyond reasonable doubt that the appellants,
indeed, conspired to kill and did kill the victim:
1. Appellant Buntag admitted, in his sworn
statement,55 that, at about 1:00 a.m. on February
9, 1992, he was in the company of appellant Bongo
and the victim Otte at the crossing of Alona Beach,
and that appellant Bongo was armed with a hunting
knife. Appellant Buntag identified the victim
through the latter’s picture, as well as the hunting
knife used in the killing.56 Appellant Bongo, in his
counter-affidavit, confirmed the truth of appellant
Buntag’s admissions and also admitted that on the
said date, time and place, he was with appellant
Buntag and the victim, and that he was armed with
a hunting knife which was tucked on his waist.
2. The appellants admitted in their respective
statements that on the said occasion, Otte died
from a stab wound caused by a hunting knife.
3. Appellant Bongo admitted in his counter-
affidavit that he took the key to the victim’s room
and hid it near their house where the policemen
found it.
4. While both appellants were within the periphery
of the situs criminis, Mihangos and Guigue
sauntered by with their bicycles at their sides.
Suddenly, the appellants jointly and
simultaneously lunged at them, causing Mihangos
and Guigue to believe that their lives were in peril,
impelling them to run for their lives and seek
sanctuary in the house of Guigue’s uncle, Aquilino
Bongo. By the time Mihangos and Guigue returned
to the situs criminis to retrieve their bicycles, the
appellants had already left.
5. In his sworn statement, appellant Buntag
admitted that after the victim was stabbed, he and
appellant Bongo fled from the situs criminis. This
was corroborated by the testimony of Mihangos.
The presence of both appellants at the situs
criminis and their flight from the scene are strong
indicia of their participation in the commission of
the crime and their complicity therein.57 Appellant
Bongo opted not to testify or adduce evidence to
controvert the testimony of Mihangos and the
admissions of the appellant prejudicial to him.
6. The hunting knife of appellant Bongo which was
used to kill the victim was left at the scene of the
crime where the policemen recovered it shortly
thereafter.
7. The appellants admitted in their respective
sworn statements that the victim was stabbed once
with a hunting knife. These admissions were
corroborated by Dr. Julita Cogo’s finding that the
victim was stabbed once on the anterior chest
area.58 The doctor testified that the stab wound
could have been caused by a sharp-edged
weapon.59
8. Neither of the appellants brought the victim to
the hospital for immediate medical attendance and
operation.
9. Although the appellants pointed to the other as
the assailant in their respective statements, neither
of them reported the stabbing to the police
authorities and claimed that the other killed the
victim.
10. Neither of the appellants took the witness stand
to deny any involvement in the killing of the
victim. The evidence of the prosecution, thus,
stands unrebutted.
The appellants cannot rely on the exculpatory
portions of their respective statements as basis for
their acquittal of the crime charged. In the case of
appellant Buntag, he avers in his sworn statement
that he was ordered by appellant Bongo to box the
victim and when he refused, appellant Bongo
himself boxed and stabbed the victim with the
hunting knife. When appellant Buntag fled from
the scene and went back home, appellant Bongo
followed and warned him not to divulge the
incident so that he would not be implicated. For his
part, appellant Bongo turned the tables on
appellant Buntag and claimed in his counter-
affidavit that the latter snatched the hunting knife
from his waist and stabbed the victim in the heat of
their altercation. The stabbing was so sudden, he
insists, that he was unable to stop appellant Buntag
from stabbing the victim.
We are not persuaded by the claims of the
appellants for the following reasons:
First. Contrary to the claim of appellant Buntag
that appellant Bongo boxed the victim, the
necropsy report of Dr. Cogo failed to show that the
victim’s body sustained hematoma, bruises or
contusions. The findings of the doctor must prevail
as against the bare statements of the appellants.
Second. Appellant Buntag admitted in his sworn
statement that before he and appellant Bongo could
leave the situs criminis after the victim was
stabbed, Mihangos and Guigue arrived. The
appellants lunged jointly and simultaneously at the
two teenagers which so terrified the latter that they
fled for their lives. If, as appellant Buntag claims,
he had nothing to do with the stabbing of the
victim, he should have sought the help of the
teenagers, brought the victim to the hospital and
reported to the police authorities that it was
appellant Bongo who stabbed the victim. Appellant
Buntag failed to do so. Neither did appellant
Bongo seek the help of the two teenagers and
report the stabbing to the police authorities. Both
appellants’ unexplained omission is another
indication of their conspiracy and complicity in the
crime charged.
Third. Appellant Bongo took the key from the
body of the victim and hid it near their house
where the policemen found it. The appellant has
not explained why he had the key to the victim’s
room and hid it near their house. He owned the
hunting knife used in stabbing the victim. He knew
or should have known that sooner or later, the
policemen would trace the knife to him; and yet,
appellant Bongo failed to report the incident to the
police authorities and surrender the knife to them.
Fourth. Appellant Bongo denied involvement in
the killing and pointed to appellant Buntag as the
assailant only after the latter had executed his own
sworn statement pointing to appellant Bongo as the
victim’s assailant. We are convinced that appellant
Bongo’s denial of any involvement in the killing is
but a belated afterthought to escape criminal
liability for the victim’s death.
The trial court convicted the appellants of murder
under Article 248 of the Revised Penal Code, as
amended, and sentenced each of them to reclusion
perpetua. We note, however, that the trial court, in
its amended decision, made no finding on any
attendant circumstance which would qualify the
killing to murder. It bears stressing that under the
Rules of Criminal Procedure, any qualifying
circumstance attendant to the commission of a
crime must be alleged in the Information and
proved by the prosecution, conformably to the
constitutional right of an accused to be informed of
the nature of the charges against him.
In this case, the Information alleged that treachery
was attendant in the commission of the crime. The
prosecution was burdened to prove beyond
reasonable doubt, not only the crime itself, but also
the qualifying circumstance of alevosia.60
Treachery cannot be based on speculations and
surmises. In order that treachery may be
appreciated as a qualifying circumstance under
Article 14 of the Revised Penal Code, the
prosecution is burdened to prove that (a) the
malefactor employed means, method or manner of
execution affording the person attacked no
opportunity to defend himself or to retaliate and,
(b) the means, method or manner of execution was
deliberately or consciously adopted by the
offender. In this case, there was no eyewitness to
the crime.
On the other hand, appellant Buntag, in his sworn
statement, claimed that before the victim was
stabbed, appellant Bongo and the victim had an
altercation; appellant Bongo, in his counter-
affidavit, stated that it was appellant Buntag and
the victim who had an altercation before the victim
was killed. There is no evidence that the appellants
deliberately or consciously adopted a method or
means of execution to insure the death of the
victim.
In fine then, the appellants are guilty only of
homicide, punishable under Article 249 of the
Revised Penal Code with reclusion temporal in its
full range, which is twelve (12) years and one (1)
day to twenty (20) years. There being no
modifying circumstance attendant to the crime, the
maximum of the indeterminate penalty should be
in its medium period.
The trial court awarded moral damages to the heirs
of the victim, although the prosecution failed to
present any heir of the victim as witness. The trial
court, likewise, failed to award civil indemnity ex
delicto to the heirs of the victim. The decision of
the trial court shall, thus, be modified accordingly.
IN LIGHT OF ALL THE FOREGOING, the trajecting deadly
Decision of the Regional Trial Court of Tagbilaran shrapnels that hit
City, Branch 3, in Criminal Case No. 7729 is and killed one
AFFIRMED WITH MODIFICATIONS. ROBERT
Appellants Casiano Buntag alias "Ciano" and AGBANLOG, per
Diego Bongo are found guilty, as principals, of the death
homicide under Article 249 of the Revised Penal certificate, and
Code. There being no modifying circumstances causing Jerry
attendant to the crime, each of the appellants are Bullanday, Jimmy
sentenced to suffer an indeterminate penalty from Wabe, Lorenzo
ten (10) years of prision mayor, in its medium Eugenio, Rey
period, as minimum, to sixteen (16) years and one Camat, Emelita
(1) day of reclusion temporal in its medium period, Agbanlog and
as maximum. The award of moral damages is Elena Agbanlog to
deleted. The said appellants are ordered to pay, suffer shrapnel
jointly and severally, to the heirs of the victim wounds on their
Berno Georg Otte, P50,000 as civil indemnity, bodies, per the
conformably to current jurisprudence.61 Costs de medical
oficio. certificates; thus,
SO ORDERED. to the latter
victims, the
[G.R. No. 153559. June 8, 2004.] accused
PEOPLE OF THE PHILIPPINES, appellee, vs. commenced all
ANTONIO COMADRE, GEORGE the acts of
COMADRE and DANILO LOZANO, execution that
appellants. would have
DECISION produced the
PER CURIAM p: crime of Multiple
Appellants Antonio Comadre, George Murder as
Comadre and Danilo Lozano were charged with consequences
Murder with Multiple Frustrated Murder in an thereof but
information which reads: nevertheless did
That on not produce them
or about the 6th of by reason of the
August 1995, at timely and able
Brgy. San Pedro, medical and
Lupao, Nueva surgical
Ecija, Philippines, interventions of
and within the physicians, to the
jurisdiction of this damage and
Honorable Court, prejudice of the
the above-named deceased’s heirs
accused, and the other
conspiring, victims.
confederating and
mutually helping
one another, with
intent to kill and
by means of CONT
treachery and RARY TO LAW.
evident 1
premeditation,
availing of
nighttime to
afford impunity,
and with the use On arraignment, appellants pleaded “not
of an explosive, guilty”. 2 Trial on the merits then ensued.
did there and then As culled from the records, at around
willfully, 7:00 in the evening of August 6, 1995, Robert
unlawfully and Agbanlog, Jimmy Wabe, Gerry Bullanday, 3 Rey
feloniously lob a Camat and Lorenzo Eugenio were having a
hand grenade that drinking spree on the terrace of the house of
landed and Robert’s father, Barangay Councilman Jaime
eventually Agbanlog, situated in Barangay San Pedro, Lupao,
exploded at the Nueva Ecija. Jaime Agbanlog was seated on the
roof of the house banister of the terrace listening to the conversation
of Jaime of the companions of his son. 4
Agbanlog
 As the drinking session went on, Robert misunderstanding with Jaime Agbanlog, Robert
and the others noticed appellants Antonio Agbanlog and Jimmy Wabe. 13
Comadre, George Comadre and Danilo Lozano Antonio’s father, Patricio, and his wife,
walking. The three stopped in front of the house. Lolita, corroborated his claim that he was at home
While his companions looked on, Antonio watching television with them during the night in
suddenly lobbed an object which fell on the roof of question. 14 Josie Comadre, George’s wife,
the terrace. Appellants immediately fled by scaling testified that her husband could not have been
the fence of a nearby school. 5 among those who threw a hand grenade at the
The object, which turned out to be a house of the Agbanlogs because on the evening of
hand grenade, exploded ripping a hole in the roof August 6, 1995, they were resting inside their
of the house. Robert Agbanlog, Jimmy Wabe, house after working all day in the farm. 15
Gerry Bullanday, Rey Camat and Lorenzo Eugenio After trial, the court a quo gave
were hit by shrapnel and slumped unconscious on credence to the prosecution’s evidence and
the floor. 6 They were all rushed to the San Jose convicted appellants of the complex crime of
General Hospital in Lupao, Nueva Ecija for Murder with Multiple Attempted Murder, 16 the
medical treatment. However, Robert Agbanlog dispositive portion of which states:
died before reaching the hospital. 7 TaDSHC WHER
Dr. Tirso de los Santos, the medico- EFORE, in view
legal officer who conducted the autopsy on the of the foregoing,
cadaver of Robert Agbanlog, certified that the judgment is
wounds sustained by the victim were consistent hereby rendered:
with the injuries inflicted by a grenade explosion
and that the direct cause of death was hypovolemic
shock due to hand grenade explosion. 8 The
surviving victims, Jimmy Wabe, Rey Camat, Jaime
Agbanlog and Gerry Bullanday sustained shrapnel 1. Finding accused Antonio
injuries. 9 Comad
SPO3 John Barraceros of the Lupao re,
Municipal Police Station, who investigated the George
scene of the crime, recovered metallic fragments at Comad
the terrace of the Agbanlog house. These re and
fragments were forwarded to the Explosive Danilo
Ordinance Disposal Division in Camp Crame, Lozano
Quezon City, where SPO2 Jesus Q. Mamaril, a GUILT
specialist in said division, identified them as Y
shrapnel of an MK2 hand grenade. 10 beyond
Denying the charges against him, reasona
appellant Antonio Comadre claimed that on the ble
night of August 6, 1995, he was with his wife and doubt
children watching television in the house of his of the
father, Patricio, and his brother, Rogelio. He comple
denied any participation in the incident and x crime
claimed that he was surprised when three of
policemen from the Lupao Municipal Police Murder
Station went to his house the following morning of with
August 7, 1995 and asked him to go with them to Multipl
the police station, where he has been detained e
since. 11 Attemp
Appellant George Comadre, for his part, ted
testified that he is the brother of Antonio Comadre Murder
and the brother-in-law of Danilo Lozano. He also and
denied any involvement in the grenade-throwing sentenc
incident, claiming that he was at home when it ing
happened. He stated that he is a friend of Rey them to
Camat and Jimmy Wabe, and that he had no suffer
animosity towards them whatsoever. Appellant the
also claimed to be in good terms with the imposa
Agbanlogs so he has no reason to cause them any ble
grief. 12 penalty
Appellant Danilo Lozano similarly of
denied any complicity in the crime. He declared death;
that he was at home with his ten year-old son on
the night of August 6, 1995. He added that he did
not see Antonio and George Comadre that night
and has not seen them for quite sometime, either
before or after the incident. Like the two other 2. Ordering Antonio Comadre,
appellants, Lozano denied having any George
Comad
 re and Costs
Danilo against the
Lozano accused.
to pay
jointly
and
severall
y the SO
heirs of ORDERED.
Robert
Agbanl
og
P50,00
0.00 as Hence, this automatic review pursuant
indemn to Article 47 of the Revised Penal Code, as
ificatio amended. Appellants contend that the trial court
n for erred: (1) when it did not correctly and judiciously
his interpret and appreciate the evidence and thus, the
death, miscarriage of justice was obviously omnipresent;
P35,00 (2) when it imposed on the accused-appellants the
0.00 as supreme penalty of death despite the evident lack
compen of the quantum of evidence to convict them of the
satory crime charged beyond reasonable doubt; and (3)
damage when it did not apply the law and jurisprudence for
s and the acquittal of the accused-appellants of the crime
P20,00 charged. 17
0.00 as Appellants point to the inconsistencies
moral in the sworn statements of Jimmy Wabe, Rey
damage Camat, Lorenzo Eugenio and Gerry Bullanday in
s; identifying the perpetrators. Wabe, Camat and
Eugenio initially executed a Sinumpaang Salaysay
on August 7, 1995 at the hospital wherein they did
not categorically state who the culprit was but
merely named Antonio Comadre as a suspect.
3. Ordering accused Antonio Gerry Bullanday declared that he suspected
Comad Antonio Comadre as one of the culprits because he
re, saw the latter's ten year-old son bring something in
George the nearby store before the explosion occurred.
Comad On August 27, 1995, or twenty days
re and later, they went to the police station to give a more
Danilo detailed account of the incident, this time
Lozano identifying Antonio Comadre as the perpetrator
to pay together with George Comadre and Danilo Lozano.
jointly A closer scrutiny of the records shows
and that no contradiction actually exists, as all sworn
severall statements pointed to the same perpetrators,
y namely, Antonio Comadre, George Comadre and
Jimmy Danilo Lozano. Moreover, it appears that the first
Wabe, statement was executed a day after the incident,
Rey when Jimmy Wabe, Rey Camat and Lorenzo
Camat, Eugenio were still in the hospital for the injuries
Gerry they sustained. Coherence could not thus be
Bulland expected in view of their condition. It is therefore
ay and not surprising for the witnesses to come up with a
Jaime more exhaustive account of the incident after they
Agbanl have regained their equanimity. The lapse of
og twenty days between the two statements is
P30,00 immaterial because said period even helped them
0.00 as recall some facts which they may have initially
indemn overlooked.
ity for Witnesses cannot be expected to
their remember all the details of the harrowing event
attempt which unfolded before their eyes. Minor
ed discrepancies might be found in their testimony,
murder. but they do not damage the essential integrity of
the evidence in its material whole, nor should they
reflect adversely on the witness’ credibility as they
erase suspicion that the same was perjured. 18
Honest inconsistencies on minor and trivial matters
serve to strengthen rather than destroy the
credibility of a witness to a crime, especially so
when, as in the instant case, the crime is shocking
to the conscience and numbing to the senses. 19
Moreover, it was not shown that
witnesses Jimmy Wabe, Rey Camat, Lorenzo
Eugenio and Gerry Bullanday had any motive to
testify falsely against appellants. Absent evidence
showing any reason or motive for prosecution
witnesses to perjure, the logical conclusion is that
no such improper motive exists, and their
testimony is thus worthy of full faith and credit.
The trial court is likewise correct in
disregarding appellants’ defense of alibi and
denial. For the defense of alibi to prosper, the
accused must prove not only that he was at some
other place at the time of the commission of the
crime but also that it was physically impossible for
him to be at the locus delicti or within its
immediate vicinity. 20
Apart from testifying with respect to the
distance of their houses from that of Jaime
Agbanlog's residence, appellants were unable to
give any explanation and neither were they able to
show that it was physically impossible for them to
be at the scene of the crime. Hence, the positive
identification of the appellants by eyewitnesses
Jimmy Wabe, Jaime Agbanlog, Rey Camat and
Gerry Bullanday prevails over their defense of alibi
and denial. 21
It was established that prior to the
grenade explosion, Rey Camat, Jaime Agbanlog,
Jimmy Wabe and Gerry Bullanday were able to
identify the culprits, namely, appellants Antonio
Comadre, George Comadre and Danilo Lozano
because there was a lamppost in front of the house
and the moon was bright. 22
Appellants’ argument that Judge Bayani
V. Vargas, the Presiding Judge of the Regional
Trial Court of San Jose City, Branch 38 erred in
rendering the decision because he was not the
judge who heard and tried the case is not well
taken.
It is not unusual for a judge who did not
try a case to decide it on the basis of the record for
the trial judge might have died, resigned, retired,
transferred, and so forth. 23 As far back as the case
of Co Tao v. Court of Appeals 24 we have held:
“The fact that the judge who heard the evidence is
not the one who rendered the judgment and that for
that reason the latter did not have the opportunity
to observe the demeanor of the witnesses during
the trial but merely relied on the records of the case
does not render the judgment erroneous.” This rule
had been followed for quite a long time, and there
is no reason to go against the principle now. 25
However, the trial court’s finding of
conspiracy will have to be reassessed. The
undisputed facts show that when Antonio Comadre
was in the act of throwing the hand grenade,
George Comadre and Danilo Lozano merely
looked on without uttering a single word of
encouragement or performed any act to assist him.
The trial court held that the mere presence of
George Comadre and Danilo Lozano provided
encouragement and a sense of security to Antonio
Comadre, thus proving the existence of conspiracy.
We disagree.
Similar to the physical act constituting
the crime itself, the elements of conspiracy must be
proven beyond reasonable doubt. Settled is the rule
that to establish conspiracy, evidence of actual
cooperation rather than mere cognizance or
approval of an illegal act is required. 26
A conspiracy must be established by
positive and conclusive evidence. It must be shown
to exist as clearly and convincingly as the
commission of the crime itself. Mere presence of a
person at the scene of the crime does not make him
a conspirator for conspiracy transcends
companionship. 27
The evidence shows that George
Comadre and Danilo Lozano did not have any
participation in the commission of the crime and
must therefore be set free. Their mere presence at
the scene of the crime as well as their close
relationship with Antonio are insufficient to
establish conspiracy considering that they
performed no positive act in furtherance of the
crime.
Neither was it proven that their act of
running away with Antonio was an act of giving
moral assistance to his criminal act. The
ratiocination of the trial court that “their presence
provided encouragement and sense of security to
Antonio,” is devoid of any factual basis. Such
finding is not supported by the evidence on record
and cannot therefore be a valid basis of a finding of
conspiracy.
Time and again we have been guided by
the principle that it would be better to set free ten
men who might be probably guilty of the crime
charged than to convict one innocent man for a
crime he did not commit. 28 There being no
conspiracy, only Antonio Comadre must answer
for the crime.
Coming now to Antonio’s liability, we
find that the trial court correctly ruled that
treachery attended the commission of the crime.
For treachery to be appreciated two conditions
must concur: (1) the means, method and form of
execution employed gave the person attacked no
opportunity to defend himself or retaliate; and (2)
such means, methods and form of execution was
deliberately and consciously adopted by the
accused. Its essence lies in the adoption of ways to
minimize or neutralize any resistance, which may
be put up by the offended party.
Appellant lobbed a grenade which fell
on the roof of the terrace where the unsuspecting
victims were having a drinking spree. The
suddenness of the attack coupled with the
instantaneous combustion and the tremendous
impact of the explosion did not afford the victims
sufficient time to scamper for safety, much less
defend themselves; thus insuring the execution of
the crime without risk of reprisal or resistance on
their part. Treachery therefore attended the
commission of the crime.
It is significant to note that aside from
treachery, the information also alleges the “use of
an explosive” 29 as an aggravating circumstance.
Since both attendant circumstances can qualify the
killing to murder under Article 248 of the Revised to reclusion
Penal Code, 30 we should determine which of the temporal and a
two circumstances will qualify the killing in this fine of not less
case. than Fifty
When the killing is perpetrated with thousand pesos
treachery and by means of explosives, the latter (P50,000.00) shall
shall be considered as a qualifying circumstance. be imposed upon
Not only does jurisprudence 31 support this view any person who
but also, since the use of explosives is the principal shall unlawfully
mode of attack, reason dictates that this attendant manufacture,
circumstance should qualify the offense instead of assemble, deal in,
treachery which will then be relegated merely as a acquire, dispose or
generic aggravating circumstance. 32 possess hand
Incidentally, with the enactment on June grenade(s), rifle
6, 1997 of Republic Act No. 8294 33 which also grenade(s), and
considers the use of explosives as an aggravating other explosives,
circumstance, there is a need to make the necessary including but not
clarification insofar as the legal implications of the limited to
said amendatory law vis-à-vis the qualifying “pillbox,”
circumstance of “by means of explosion” under “molotov cocktail
Article 248 of the Revised Penal Code are bombs,” “fire
concerned. Corollary thereto is the issue of which bombs,” or other
law should be applied in the instant case. incendiary devices
R.A. No. 8294 was a reaction to the onerous and capable of
anachronistic penalties imposed under the old producing
illegal possession of firearms law, P.D. 1866, destructive effect
which prevailed during the tumultuous years of the on contiguous
Marcos dictatorship. The amendatory law was objects or causing
enacted, not to decriminalize illegal possession of injury or death to
firearms and explosives, but to lower their any person.
penalties in order to rationalize them into more
acceptable and realistic levels. 34
This legislative intent is conspicuously
reflected in the reduction of the corresponding
penalties for illegal possession of firearms, or When a person commits any of the crimes defined
ammunitions and other related crimes under the in the Revised Penal Code or special law with the
amendatory law. Under Section 2 of the said law, use of the aforementioned explosives, detonation
the penalties for unlawful possession of explosives agents or incendiary devises, which results in the
are also lowered. Specifically, when the illegally death of any person or persons, the use of such
possessed explosives are used to commit any of the explosives, detonation agents or incendiary devices
crimes under the Revised Penal Code, which result shall be considered as an aggravating
in the death of a person, the penalty is no longer circumstance. (shall be punished with the penalty
death, unlike in P.D. No. 1866, but it shall be of death is DELETED.)
considered only as an aggravating circumstance. xxx xxx xxx
Section 3 of P.D. No. 1866 as amended by Section
2 of R.A. 8294 now reads: With the removal of death as a penalty
Section and the insertion of the term “. . . as an aggravating
2. Section 3 of circumstance,” the unmistakable import is to
Presidential downgrade the penalty for illegal possession of
Decree No. 1866, explosives and consider its use merely as an
as amended, is aggravating circumstance.
hereby further Clearly, Congress intended R.A. No.
amended to read 8294 to reduce the penalty for illegal possession of
as follows: firearms and explosives. Also, Congress clearly
intended RA No. 8294 to consider as aggravating
circumstance, instead of a separate offense, illegal
possession of firearms and explosives when such
possession is used to commit other crimes under
Section the Revised Penal Code.
3. Unlawful It must be made clear, however, that RA
Manufacture, No. 8294 did not amend the definition of murder
Sale, Acquisition, under Article 248, but merely made the use of
Disposition or explosives an aggravating circumstance when
Possession of resorted to in committing “any of the crimes
Explosives. The defined in the Revised Penal Code.” The
penalty of prision legislative purpose is to do away with the use of
mayor in its explosives as a separate crime and to make such
maximum period use merely an aggravating circumstance in the
commission of any crime already defined in the
Revised Penal Code. Thus, RA No. 8294 merely
added the use of unlicensed explosives as one of
the aggravating circumstances specified in Article
14 of the Revised Penal Code. Like the
aggravating circumstance of “explosion” in
paragraph 12, “evident premeditation” in
paragraph 13, or “treachery” in paragraph 16 of
Article 14, the new aggravating circumstance
added by RA No. 8294 does not change the
definition of murder in Article 248.
Nonetheless, even if favorable to the
appellant, R.A. No. 8294 still cannot be made
applicable in this case. Before the use of
unlawfully possessed explosives can be properly
appreciated as an aggravating circumstance, it must
be adequately established that the possession was
illegal or unlawful, i.e., the accused is without the
corresponding authority or permit to possess. This
follows the same requisites in the prosecution of
crimes involving illegal possession of firearm 35
which is a kindred or related offense under P.D.
1866, as amended. This proof does not obtain in
the present case. Not only was it not alleged in the
information, but no evidence was adduced by the
prosecution to show that the possession by
appellant of the explosive was unlawful. TIDHCc
It is worthy to note that the above
requirement of illegality is borne out by the
provisions of the law itself, in conjunction with the
pertinent tenets of legal hermeneutics.
A reading of the title 36 of R.A. No.
8294 will show that the qualifier “illegal/unlawful .
. . possession” is followed by “of firearms,
ammunition, or explosives or instruments. . .”
Although the term ammunition is separated from
“explosives” by the disjunctive word “or”, it does
not mean that “explosives” are no longer included
in the items which can be illegally/unlawfully
possessed. In this context, the disjunctive word
“or” is not used to separate but to signify a
succession or to conjoin the enumerated items
together. 37 Moreover, Section 2 of R.A. 8294, 38
subtitled: “Section. Unlawful Manufacture, Sale,
Acquisition, Disposition or Possession of
Explosives”, clearly refers to the unlawful
manufacture, sale, or possession of explosives.
What the law emphasizes is the act’s
lack of authority. Thus, when the second paragraph
of Section 3, P.D. No. 1866, as amended by RA
No. 8294 speaks of “the use of the aforementioned
explosives, etc.” as an aggravating circumstance in
the commission of crimes, it refers to those
explosives, etc. “unlawfully” manufactured,
assembled, dealt in, acquired, disposed or
possessed mentioned in the first paragraph of the
same section. What is per se aggravating is the use
of unlawfully “manufactured. . . or possessed”
explosives. The mere use of explosives is not.
The information in this case does not
allege that appellant Antonio Comadre had
unlawfully possessed or that he had no authority to
possess the grenade that he used in the killing and
attempted killings. Even if it were alleged, its
presence was not proven by the prosecution
beyond reasonable doubt. Rule 110 of the 2000
Revised Rules on Criminal Procedure requires the
averment of aggravating circumstances for their
application. 39
The inapplicability of R.A. 8294 having
been made manifest, the crime committed is
Murder committed “by means of explosion” in
accordance with Article 248(3) of the Revised
Penal Code. The same, having been alleged in the
Information, may be properly considered as
appellant was sufficiently informed of the nature of
the accusation against him. 40
The trial court found appellant guilty of
the complex crime of murder with multiple
attempted murder under Article 48 of the Revised
Penal Code, which provides:
Art.
48. Penalty for
complex crimes.
— When a single
act constitutes two
or more grave or
less grave
felonies, or when
an offense is a
necessary means
of committing the
other, the penalty
for the most
serious crime shall
be imposed, the
same to be applied
in its maximum
period.
The underlying philosophy of complex
crimes in the Revised Penal Code, which follows
the pro reo principle, is intended to favor the
accused by imposing a single penalty irrespective
of the crimes committed. The rationale being, that
the accused who commits two crimes with single
criminal impulse demonstrates lesser perversity
than when the crimes are committed by different
acts and several criminal resolutions.
The single act by appellant of
detonating a hand grenade may quantitatively
constitute a cluster of several separate and distinct
offenses, yet these component criminal offenses
should be considered only as a single crime in law
on which a single penalty is imposed because the
offender was impelled by a “single criminal
impulse” which shows his lesser degree of
perversity. 41
Under the aforecited article, when a
single act constitutes two or more grave or less
grave felonies the penalty for the most serious
crime shall be imposed, the same to be applied in
its maximum period irrespective of the presence of
modifying circumstances, including the generic
aggravating circumstance of treachery in this case.
42 Applying the aforesaid provision of law, the
maximum penalty for the most serious crime
(murder) is death. The trial court, therefore,
correctly imposed the death penalty.
Three justices of the Court, however,
continue to maintain the unconstitutionality of
R.A. 7659 insofar as it prescribes the death
penalty. Nevertheless, they submit to the ruling of
the majority to the effect that the law is
constitutional and that the death penalty can be
lawfully imposed in the case at bar.
Finally, the trial court awarded to the
parents of the victim Robert Agbanlog civil
indemnity in the amount of P50,000.00,
P35,000.00 as compensatory damages and
P20,000.00 as moral damages. Pursuant to existing
jurisprudence 43 the award of civil indemnity is
proper. However, the actual damages awarded to
the heirs of Robert Agbanlog should be modified,
considering that the prosecution was able to
substantiate only the amount of P18,000.00 as
funeral expenses. 44
The award of moral damages is
appropriate there being evidence to show
emotional suffering on the part of the heirs of the
deceased, but the same must be increased to
P50,000.00 in accordance with prevailing judicial
policy. 45
With respect to the surviving victims
Jaime Agbanlog, Jimmy Wabe, Rey Camat and
Gerry Bullanday, the trial court awarded
P30,000.00 each for the injuries they sustained. We
find this award inappropriate because they were
not able to present a single receipt to substantiate
their claims. Nonetheless, since it appears that they
are entitled to actual damages although the amount
thereof cannot be determined, they should be
awarded temperate damages of P25,000.00 each.
46
WHEREFORE, in view of all the
foregoing, the appealed decision of the Regional
Trial Court of San Jose City, Branch 39 in
Criminal Case No. L-16(95) is AFFIRMED insofar
as appellant Antonio Comadre is convicted of the
complex crime of Murder with Multiple Attempted
Murder and sentenced to suffer the penalty of
death. He is ordered to pay the heirs of the victim
the amount of P50,000.00 as civil indemnity,
P50,000.00 as moral damages and P18,000.00 as
actual damages and likewise ordered to pay the
surviving victims, Jaime Agbanlog, Jimmy Wabe,
Rey Camat and Gerry Bullanday, P25,000.00 each
as temperate damages for the injuries they
sustained. Appellants Gregorio Comadre and
Danilo Lozano are ACQUITTED for lack of
evidence to establish conspiracy, and they are
hereby ordered immediately RELEASED from
confinement unless they are lawfully held in
custody for another cause. Costs de oficio.
In accordance with Section 25 of
Republic Act 7659 amending Article 83 of the
Revised Penal Code, upon finality of this Decision,
let the records of this case be forwarded to the
Office of the President for possible exercise of
pardoning power. aEACcS
SO ORDERED.
||| (People v. Comadre, G.R. No. 153559, [June 8,
2004])
G.R. No. 148699 November 15, 2002
THE PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
AM WILSON MANIJAS y LIM, accused-
appellant.
DECISION
MENDOZA, J.:
This is an appeal from the decision1 of the
Regional Trial Court, Branch 16, Zamboanga City,
finding accused-appellant AM Wilson Manijas y
Lim guilty beyond reasonable doubt of the crime
of murder for the killing of M/Sgt. Emerme S.
Malit and sentencing him to suffer the penalty of
reclusion perpetua, to pay the heirs of the victim
P50,000.00 as indemnity, P30,000.00 as moral
damages, P20,000.00 as exemplary damages and to
pay the costs.
The information against accused-appellant alleged
—
That on or about May 28, 1999, in the City of
Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, AM WILSON MANIJAS y LIM,
being then a member of the Philippine Air Force,
3rd Air Wing Base, this City, and as such armed
with a Baby Armalite, conspiring and
confederating together, mutually aiding and
assisting with his unidentified companion, by
means of treachery and with intent to kill, did then
and there wilfully and feloniously, suddenly attack
and shoot, with the use of such weapon that they
were then armed with, at the person of M/SGT.
EMERME S. MALIT, thereby inflicting mortal
gunshot wounds on the fatal parts of the latter’s
body, which directly caused his death, to the
damage and prejudice of the heirs of the said
victim.
CONTRARY TO LAW.2
Upon arraignment, accused-appellant Manijas
entered a plea of not guilty, whereupon he was
tried.
Nine witnesses were presented by the prosecution,
namely: (1) Dr. Owen Jaen Lebaquin, M.D.; (2)
T/Sgt. Henry Bona; (3) M/Sgt. Armando Agadier;
(4) SPO2 Jesus Ortega; (5) M/Sgt. Myrna A. Malit;
(6) Sr. Ins. Mercedes Delfin Diestro; (7) Ma. Lilia
L. Urmanita; (8) Capt. Jose Torres, Jr. (Ret.); and
(9) SPO1 Elmer Acuña.
T/Sgt. Henry Almogera Bona testified that he was
a member of the Philippine Air Force (PAF)
assigned with the Composite Tactical Group 9 at
Jolo, Sulu. Upon receiving a telegram that his
father was very ill in Sorsogon, he went to
Zamboanga City from Jolo in the afternoon of May
27, 1999 with the intention of boarding a C-130
plane of the Philippine Air Force bound for Manila
and from there go home to Sorsogon. At about 5
o’clock in the afternoon of the same day, he met
the victim M/Sgt. Emerme Malit, who was
escorting his daughter to the C-130 so that the
latter could go to Manila to study. Malit arrived in
Zamboanga City from Jolo one day ahead of T/Sgt.
Bona. T/Sgt. Bona had known M/Sgt. Malit for
nineteen (19) years since they had both been
assigned to Jolo since 1979.3
That same day, T/Sgt. Bona and M/Sgt. Malit
drank liquor with M/Sgt. Armando Agadier in the
barracks. They consumed two bottles of Tanduay
(lapad) until 10 o’clock in the evening. At about 11
o’clock in the evening, they went out of the
barracks and proceeded to the "Real Meeting
Place," a karaoke bar near Edwin Andrews Air
Base, where they sang and drank beer. T/Sgt. Bona
and M/Sgt. Malit drank four (4) bottles of beer
each, while M/Sgt. Agadier finished only one
bottle as he was not fond of drinking. They left the
karaoke bar at around 2:40 o’clock in the morning
of May 28, 1999. M/Sgt. Malit was then wearing a
white T-shirt, short maong pants and Topsider
leather shoes. He had a service firearm since he
was on a mission in Zamboanga City, but the same
was hidden by his shirt. T/Sgt. Bona and M/Sgt.
Agadier were not armed.4
From the karaoke bar, the group proceeded to the
"Roadside Snack House" for tapsilog. The snack
house was made of wooden slabs attached to the
cemented wall of the fence of the air base fronting
Gov. Camins Road, which led to the Zamboanga
International Airport. The walls on the left and
right sides were made of wooden slabs placed side
by side. The snack house had only one (1) door
about one meter wide. On the lower portion of the
walls, the slabs were placed close to each other
while at the upper portion there were slits between
the slabs.5 The door of the snack house was about
one meter from the shoulder of Gov. Camins Road.
At the side of the snack house were bougainvillea
plants. The place was well-lighted by two
fluorescent lamps.
When T/Sgt. Bona and his companions arrived, no
other persons were in the vicinity of the snack
house. After eating, Malit, Bona and Agadier stood
up to leave. M/Sgt. Malit stepped out first,
intending to call a tricycle. T/Sgt. Bona followed
about a meter behind him. Suddenly, T/Sgt. Bona
heard a burst of gunfire coming from the right side
of the door of the snack house. He saw M/Sgt.
Malit fall down on the shoulder of the road.
Instinctively, he dropped to the ground and
crawled inside the snack house for cover. He
peeped through the slits to see who had shot
M/Sgt. Malit and saw accused-appellant Manijas
holding a Baby Armalite rifle. It appears that
accused-appellant Manijas came from the right
side of the snack house where there were
bougainvillea plants, about three meters away from
the spot where M/Sgt. Malit fell. Accused-
appellant Manijas got the .45-caliber pistol tucked
on M/Sgt. Malit’s waist and walked towards his
companion who was waiting for him. T/Sgt. Bona
recognized accused-appellant Manijas because of
the street lamp in front of the snack house across
the road. He testified that accused-appellant was
wearing a white T-shirt with the words "United
States of America" printed on it, light blue maong
pants and rubber shoes. T/Sgt. Bona knew
accused-appellant Manijas because the latter was
his cadet at Mindanao State University in Jolo,
Sulu, where T/Sgt. Bona was in charge of the
ROTC in 1996 and 1997. Accused-appellant
Manijas enlisted in the Philippine Air Force in
1998. T/Sgt. Bona did not recognize accused-
appellant’s companion because the latter’s back
was towards him (T/Sgt. Bona). According to
T/Sgt. Bona, accused-appellant’s companion was
taller than he (accused-appellant) and had short
hair. Accused-appellant and his companion
boarded a blue tricycle which then sped towards
the Zamboanga International Airport. The tricycle,
with plate number JU-2068, was only seven meters
away from T/Sgt. Bona.6
After accused-appellant Manijas and his
companion had left, T/Sgt. Bona told M/Sgt.
Agadier to guard the body of M/Sgt. Malit as he
(Bona) took a tricycle to the base to ask for help.
T/Sgt. Bona reported to Captain Jose Torres, Jr.,
the duty officer on that day, that M/Sgt. Malit had
been shot and killed at the "Roadside Snack
House" by accused-appellant Wilson Manijas.
A team of seven soldiers proceeded to the crime
scene. When they arrived, they found M/Sgt.
Malit’s body sprawled on the edge of the road with
its head blown off. There was an ambulance and
several policemen at the scene. The policemen
took T/Sgt. Bona’s testimony at the police station
but he did not reveal the identity of the one who
shot M/Sgt. Malit because he feared for his own
life. He testified: "What I did [at the Central Police
Station], I did not give the name of the one who
killed my companion [M/Sgt. Malit] because I am
afraid I might die. I know that the incident was
planned and if I will go home, I might be killed
and the case will be no more."7 T/Sgt. Bona found
himself alone as his companion, M/Sgt. Agadier,
suffered hypertension and had to be taken home.
After T/Sgt. Bona’s statement8 was taken at the
Central Police Station, he was allowed to go home
to the air base on board a tricycle in the early
morning of May 28, 1999.9
That same day, at the investigation section of the
air base, T/Sgt. Bona revealed to M/Sgt. Nonilo
Aquino that M/Sgt. Malit had been shot by
accused-appellant Wilson Manijas. Based on his
information, accused-appellant Manijas was picked
up for paraffin examination. M/Sgt. Aquino took
T/Sgt. Henry A. Bona’s statement at the Wing
Intelligence Office on or about 1425-H (2:25 p.m.)
of May 28, 1999. The statement was sworn to
before Major Vera T. Vergara, (JAGS), Wing
Legal Officer.10
In the afternoon of May 29, 1999, T/Sgt. Bona
boarded a C-130 plane for Manila. He returned to
Zamboanga City on June 15, 1999. He reported to
the investigation section of the air base and, on
June 16, 1999, signed an Affidavit,11 which was
sworn to before 3rd Asst. City Prosecutor Juan G.
Florendo of Zamboanga City, in which he again
pointed to accused-appellant Wilson Manijas as the
assailant.12
The next witness for the prosecution, M/Sgt.
Armando Agadier, is a member of the Philippine
Air Force assigned at the Composite Tactical
Group 9, Jolo, Sulu. Agadier corroborated the
testimony of T/Sgt. Bona.13 He testified that from
the karaoke bar, they proceeded to the "Roadside
Snack House" to eat. It was then about 3 o’clock in
the morning of May 28, 1999. M/Sgt. Malit paid
their bill and then went out, followed by T/Sgt.
Bona. M/Sgt. Agadier was still inside the snack
house when he heard a burst of gunfire. He
recognized the sound as that coming from an M16
Armalite rifle. He was surprised (nabigla) and was
not able to seek cover. He just covered his face
with both arms. Then, M/Sgt. Agadier said, he
peeped through an opening near the door of the
snack house and saw M/ Sgt. Malit sprawled on the
ground face up. The top of his head had been
blown off. M/Sgt. Agadier saw accused-appellant
Manijas leaving the place holding a Baby Armalite
rifle. M/Sgt. Agadier knew accused-appellant
Manijas because the latter had been his neighbor at
the Airman’s Village at Satag, Jolo, Sulu since the
1990’s. As he was walking away, accused-
appellant Manijas turned around and M/Sgt.
Agadier clearly saw his face. The place was
illuminated by two streetlights, one near the dead
body of the victim and the other, farther away.
There were no other armed persons near the crime
scene except accused-appellant and another one
standing near a tricycle, who was taller than
accused-appellant Manijas. Accused-appellant
Manijas and the other man then boarded the
tricycle and left. T/Sgt. Bona told Agadier to keep
watch over the body of M/Sgt. Malit while Bona
reported the incident to their headquarters at the air
base. Minutes later, air force enlisted personnel,
headed by Captain Jose Torres, Jr., arrived. M/Sgt.
Agadier had to be taken to the barracks for medical
attention because he was suffering from
hypertension. On June 17, 1999, M/Sgt. Agadier
executed an Affidavit14 which was sworn to
before State Prosecutor II Peter C. Medalle. In his
affidavit, M/Sgt. Agadier identified the assailant of
M/Sgt. Malit as accused-appellant Wilson
Manijas.15
Captain Jose C. Torres, Jr., PAF (Ret.), testified
that on May 28, 1999, he was officer of the day at
the Edwin Andrews Air Base. At past 3 o’clock in
the morning, T/Sgt. Henry Bona, an air force
enlisted personnel assigned in Jolo, Sulu, reported
to him that his companion, M/Sgt. Emerme Malit,
had been shot to death at a roadside eatery along
Gov. Camins Road and that the assailant was
accused-appellant Wilson Manijas. Upon receipt of
the report, Captain Torres said he formed a team of
Air Police personnel headed by M/Sgt. Orio which
proceeded to the crime scene. They saw the dead
body of M/Sgt. Emerme Malit. Several policemen
and people were already at the crime scene.
Captain Torres saw M/Sgt. Agadier, who was
trembling and speechless, and took the latter to the
air force hospital where he was confined. Captain
Torres relayed to Maj. Eugenio Ornido, Wing
Action Officer, the information given by T/Sgt.
Bona that it was accused-appellant Wilson Manijas
who shot and killed M/Sgt. Malit. He later reported
this information to Captain Edwin Ganitnit, the
Director for Intelligence, who was to investigate
the matter.16
SPO1 Acuña testified that the shooting incident
was reported to the Zamboanga City Police Office
at 3:05 o’clock in the morning through a telephone
call by a concerned citizen. The report was
recorded in a complaint/assignment sheet.17 Upon
receipt of the report, SPO1 Acuña proceeded to the
crime scene with PO3 Montenegro. When he
arrived, SPO1 Acuña saw the victim lying on the
roadside in a pool of blood. SPO1 Acuña
recovered six (6) empty shells 5.56 M16 rifle18 at
the crime scene. M/Sgt. Malit’s companion, T/Sgt.
Henry Bona, was invited to the police station.
During the investigation at the police station,
T/Sgt. Bona did not identify the assailant. The
sworn affidavits of T/Sgt. Henry Bona and M/Sgt.
Armando Agadier were turned over to the police
by elements of the Philippine Air Force on June
22, 1999.19
P/Sr. Insp. Mercedes Delfin-Diestro, a Forensic
Chemist, testified that on May 28, 1999, at the
request of Captain Edgardo Lorenzo, Director for
Intelligence of the Philippine Air Force, a paraffin
test was conducted on accused-appellant Wilson
Manijas. SPO1 Godofredo Grafia conducted
paraffin casting on both hands of accused-appellant
Wilson Manijas. Sr. Insp. Diestro examined the
paraffin cast on May 31, 1999. The examination
showed accused-appellant’s right hand positive for
gunpowder nitrates.20 Diestro testified that the
positive result of the presence of gunpowder
nitrates on the right hand of accused-appellant
indicated the possibility that he may have fired a
gun.21
On the other hand, Mrs. Myrna Annudin Malit,
widow of the late M/Sgt. Emerme Malit, testified
that she knew accused-appellant Wilson Manijas
because they were neighbors in Jolo, Sulu. She
testified that she spent P50,000.00 for her
husband’s coffin and around P30,000.00 for the
funeral services. She also spent P100,000.00 for
the nine-day prayer. Her husband was earning
almost P14,000.00 at the time of his death.22
Mrs. Ma. Lilia Urmanita y Lubaton, Supply
Accountable Officer of the Airborne 530th Airbase
Wing of the Philippine Air Force at Edwin
Andrews Air Base, testified that accused-appellant
Wilson Manijas had not been issued a government
firearm. She issued a Certification23 to this
effect.24
Her testimony was corroborated by SPO4 Jesus
Guray Ortega, officer in charge of processing
applications for firearm licenses of the PNP
Regional Office 9 in Zamboanga City.25
A postmortem examination conducted by Dr.
Owen Jaen Lebaquin, Police Chief Inspector,
Regional Chief and Medico-Legal Officer, PNP
Regional Crime Laboratory Office 9, Zamboanga
City showed the following:26
FINDINGS:
Fairly nourished, fairly developed, male cadaver,
in rigor mortis with postmortem lividity at the
dependent portions of the body. Lips are pale.
HEAD TRUNK AND EXTREMITIES:
(1) Avulsion frontal area of the head extending to
the occipital area of the head, measuring 18 x 13
cm. bisected by its anterior midline.
(2) Gunshot wound, thru and thru, point of entry,
right supraorbital area, measuring 0.4 x 0.2 cm. 7
cm. from its anterior midline, with an abraded
collar measuring 0.3 cm laterally, 0.1 cm medially,
0.2 cm superiorly and 0.1 cm interiorly directed
posteriorwards, downwards, lateralwards and
making a point of exit at the right occipital area of
the head measuring 5 x 2 cm, 5 cm from its
posterior midline.
(3) Gunshot wound, point of entry, right deltoid
area, measuring 0.4 cm x 0.3 cm, 5 cm to its
anterior midline, with an abraded collar measuring
0.3 cm superiorly, 0.2 cm laterally, directed
posteriorwards, downwards, medial-wards
fracturing the 2nd and 3rd thoracic ribs lacerating
the upper lobe of the right lung, thoracic aorta and
nicking to 3rd, 4th and 5th thoracic vertebra with a
metallic fragment recovered thereat.
(4) Gunshot wound, point of entry, upper 3rd of
the right arm, measuring 0.4 cm x 0.2 cm, 9 cm
lateral to its anterior midline with an abraded collar
measuring 0.3 cm superiorly, 0.2 cm lateral and 0.1
cm interiorly and medially directed posteriorwards,
downwards, medialwards fracturing to 2nd and 3rd
right thoracic ribs and lacerating the upper and
middle lobes of the right lung a metallic fragment
recovered thereat.
(5) Gunshot wound, point of entry, right axillary
area, measuring 0.4 cm x 0.3 cm, 24 cm from its
anterior midline with an abraded collar measuring
0.2 cm superiorly and 0.1 cm inferiorly, medially
and laterally directed posterior-wards, downwards,
medialwards fracturing the 6, 7, 8th thoracic ribs
lacerating the lower lobe of the right lung and the
liver with a metallic fragment recovered thereat.
There are about 800 cc of blood and blood clots at
the thoracic and abdominal cavities.
Stomach is empty.
CONCLUSION:
Cause of death is hemorrhage due to multiple
gunshot wounds to the head and the body.
The defense then presented accused-appellant
Wilson Manijas. He testified that he was a member
of the Philippine Air Force since June 16, 1997. At
6 o’clock in the evening of May 27, 1999, he said,
he was with his classmate Airman Allan Artazo at
the air base. They went to Shoppers Square to meet
with Artazo’s girlfriend and from there they went
to the house of the latter at Tugbungan. There, they
consumed one and a half (1 1/2) cases of beer with
the uncle of Artazo’s girlfriend until past 11
o’clock in the evening. From there, accused-
appellant Manijas and Artazo went to the "Daishita
Karaoke Bar." Accused-appellant said he and
Artazo drank half a case of beer. At 2:30 o’clock in
the morning, Artazo excused himself and went
back to the air base. Accused-appellant Manijas
stayed behind to wait for his girlfriend, Allen
Ampalaya, but she did not come. He left the place
at 3:30 o’clock in the morning. He rode a tricycle
to the house of his cousin Yasser Halil in
Baliwasan Chico. He did not go home to his house
in Guiwan because he knew the gate and the house
would already be closed and their door bell was
then out of order. He arrived at his cousin’s house
at Baliwasan Chico at a quarter to 4 o’clock in the
morning. When he arrived, the occupants of the
house were asleep. No one opened the door when
he knocked, so he left and went home to Guiwan.
On his way, he passed by Gov. Camins Road and
saw several people on the road and a police vehicle
that was parked on the side. He did not recognize
anyone. He arrived at his house in Guiwan at about
5 o’ clock in the morning.27
Continuing his testimony, accused-appellant said
that in the morning of May 28, 1999, he took a
bath, reported to the air base at 7 o’clock in the
morning and attended the flag ceremony. There
was already news in the air base that a member of
the air force was shot. During the formation after
the flag ceremony, the First Sergeant informed
them that M/Sgt. Emerme Malit had been shot.
While awaiting the arrival of M/Sgt. Malit’s
remains, accused-appellant Manijas cleaned the
M16 Armalite rifle issued to him as an honor
guard. He dismantled and cleaned it, wiping its
barrel and bolt with a piece of cloth. Accused-
appellant was not able to witness the arrival of
M/Sgt. Malit’s remains because, at 4 o’clock in the
afternoon, he was picked up by members of the
Intelligence Unit of the Air Force, headed by
Captain Edgardo Lorenzo, PAF Director for
Intelligence. Accused-appellant was taken to the
PNP Regional Crime Laboratory Office 9 for
paraffin examination of both his hands. At past 7
o’clock in the evening of May 28, 1999, accused-
appellant received a message from his brother that
their mother was seriously ill in Jolo. He wanted to
ask permission from his superior to go to Jolo.
Accused-appellant Manijas left for Jolo on board
the boat Danica Joy at around 8 o’clock in the
evening, without his superior’s permission. When
he arrived in Jolo in the morning of May 29, 1999,
he immediately proceeded to the Sulu Provincial
Hospital where his mother was confined. Accused-
appellant Manijas stayed in Jolo until September
1999. As a result, he was declared to have been
absent without leave (AWOL). In late September,
accused-appellant said he received information
from his aunt, Mutmaina Kamlon, that he was
found positive for gunpowder nitrates and that a
warrant for his arrest had been issued. Hence on
October 3, 1999, he returned to Zamboanga City.
On October 5, 1999, he was accompanied by Atty.
Melchor Sadain to Edwin Andrews Air Base where
a warrant of arrest was served on him, after which
he was committed to the City Jail.28
AM Allan Artazo was presented to corroborate the
testimony of accused-appellant Manijas. AM
Artazo said that he was a classmate of accused-
appellant Wilson Manijas in the Philippine Air
Force. In May 1999, he was assigned at the Edwin
Andrews Air Base in Zamboanga City. AM Artazo
said that he was with accused-appellant Manijas
from 6 o’clock in the evening of May 27, 1999 to
around 2:30 o’clock in the morning of May 28,
1999. After that time, he left accused-appellant at
the "Daishita Karaoke Bar" in Canelar, Zamboanga
City and returned to Edwin Andrews Air Base.29
Surina Manijas y Isahac, wife of accused-appellant
Manijas, testified that in the morning of May 27,
1999, her husband reported for work at the Edwin
Andrews Air Base. It was about 4:50 o’clock in the
morning of May 28, 1999 when accused-appellant
came home. At around 7 o’clock in the morning of
said day, accused-appellant left for work at the Air
Base and returned home at around 8 o’clock in the
evening. At 8:30 o’clock that evening, he left for
Jolo.30
Based on the parties’ evidence, the trial court
rendered a decision on February 1, 2001, finding
accused-appellant Manijas guilty beyond
reasonable doubt. In his appeal, accused-appellant
assigned the following errors against the trial
court:
I. THE TRIAL COURT ERRED IN
CONVICTING APPELLANT OF THE CRIME
CHARGED NOTWITHSTANDING THE
FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.
II. THE TRIAL COURT ERRED IN GIVING
FULL WEIGHT AND CREDENCE TO
PROSECUTION’S EXHIBIT "I" (Physical
Science Report # [C-026]-99) AND ITS SUB-
MARKINGS. IT ALSO ERRED IN NOT GIVING
EXCULPATORY WEIGHT TO THE EVIDENCE
ADDUCED BY THE DEFENSE.
First. Accused-appellant Airman Manijas argues
that there are serious doubts concerning the
truthfulness of the statements of T/Sgt. Henry
Bona and M/Sgt. Armando Agadier and that it was
error for the trial court to rely on their testimonies.
Accused-appellant points out the conflicting
statements of T/Sgt. Bona. In his affidavit, T/Sgt.
Bona stated that it was "quite dim" or "dark" and
for this reason did not recognize the assailant, but
in his testimony in court he claimed that the crime
scene was sufficiently illuminated by two lamp
posts and he recognized the assailant to be
accused-appellant. Later, however, T/Sgt. Bona
said that he said in his affidavit that it was dark and
that he did not recognize the killer because he was
afraid and he was concerned about his personal
safety. Thus, he testified:31
PROSECUTOR DIABO:
Q: Here, you said it was "quite dim" or "dark". But
yesterday during the direct examination before this
Court, you said, the vicinity was "clear" because of
the light coming from the street post. Which is now
correct Mr. Witness?
A: The one that was correct is that one I said, that
"it’s clear"?
Q: And, why did you say this in the police station
that, it was "dim" or "dark"?
A: Well, I said that in the police station that it was
"dim" or "dark" considering that I told that, I do
not know the assailant "para makatugma ang
statement ko na, hindi ko kilala ang assailant".
INTERPRETER:
So that my statement will coincide with my
statement that I did not recognize the assailant.
COURT:
Q: In plain words, you lied as to the identity of the
assailant and as to the lighting condition?
A: Yes.
Q: And, to make your lies more believable you
said, the lighting condition was quite "dim"?
A: Yes.
Proceed.
PROSECUTOR DIABO:
Q: Why did you say that to the Police? . . . Why
did you lie to the Police?
ATTY. SADAIN:
Already answered Your Honor.
COURT:
Yes, already answered. He said, because he was
alone, from the police station on his way, he will
be returning alone so, he said that this crime was
planned and he was afraid that, he might also be a
victim.
Accused-appellant makes much of the fact that the
incident reported by T/Sgt. Bona to Captain Torres
was not recorded in the logbook of the Edwin
Andrews Air Base. Captain Torres stated that
T/Sgt. Bona reported the shooting incident to him
and further told him who the assailant was. He
testified:32
FISCAL CABARON:
Q: Now, Mr. Witness, about [pass] three o’ clock
in the early dawn on May 28, 1999 could you tell
the Honorable Court if you received a report?
A: Henry Bona reported to me that a shooting
incident [occurred] during that time.
Q: Who is this Henry Bona, Mr. Witness?
A: Philippine Air Force who is assigned in Jolo,
Sulu.
Q: Do you know him personally?
A: Of course, I personally know him since we were
then companion (sic) in Jolo, Sulu way back 1970
to 1983.
Q: Where did he give you this report, about the
shooting incident?
A: Inside our office, Air Operation Center.
Q: And what exactly did he tell you about this
shooting incident?
A: He came and told me that his companion,
M/Sgt. Emerme Malit, was shot to [death].
Q: Where?
A: At [the roadside] eatery, at Gov. Camins
[Road].
Q: And what else did he tell you?
A: And he told me that Airman Manijas was the
perpetrator or the one who [shot] M/Sgt. Emerme
Malit.
Accused-appellant likewise cites the following
testimony of T/Sgt. Bona which he claims is
doubtful:33
Q: So, if you were there squatting, facing the wall
of the Snack House, how were you able to see thru
the railings?
A: At first when I dived or dropped myself, I was
in a squatting position and I was hiding. After a
few seconds, that was the time that I peeped.
Q: You are only saying it now. Earlier you said
that, all the while you were peeping while inside
the Roadside Snack House, you were in a squatting
position?
A: Well, what I did, I proceeded to the side and I
was in a squatting position and at the same time
hiding and later on I peeped that was the time I
saw the assailant.
He tries to discredit the testimony of M/Sgt.
Armando Agadier by referring to the latter’s
inability to describe what the assailant was wearing
on the night of the incident.
The records show that T/Sgt. Bona and M/Sgt.
Agadier were actually able to witness the incident
and recognize accused-appellant. As T/Sgt. Bona
explained, after ducking he tried to find out what
was happening by looking through the slits in the
wooden slabs on the walls.34 On the other hand,
M/Sgt. Agadier saw the incident before he suffered
from hypertension.35
The trial court thus correctly relied on the
testimonies of T/Sgt. Bona and M/Sgt. Agadier for
its findings. Their narration of the events
dovetailed on pertinent points. These witnesses
were candid and remained steadfast under rigorous
cross-examination. Moreover, no reason has been
shown why these witnesses would testify falsely
against accused-appellant. Their testimonies were
worthy of the full faith and credit accorded to them
by the trial court.36
Second. Accused-appellant assails the Report #C-
026-99 on the result of the paraffin test which
shows his right hand to be positive for gunpowder
nitrates. Accused-appellant contends that the
person who examined the paraffin cast was not
present when the cast was taken and, therefore,
was incompetent to testify on the findings or
results. He also claims that the results of the
examination were inconsistent with the allegation
that an M16 Baby Armalite was used in the killing
of the victim.
To begin with, it must be presumed that official
duty was regularly performed.37 Strong evidence
is necessary to rebut this presumption.38 In this
case, accused-appellant has not presented any
evidence to show that the paraffin testing done on
his person was falsified. Nor can it be said that the
persons who conducted the examination had any ill
motive or intention to falsely implicate accused-
appellant.
Accused-appellant contends that firing an M16
Baby Armalite requires the use of both hands.
Since only his right hand was positive for
gunpowder nitrates, he could not have been the
assailant. The contention has no merit. There are
several reasons which may explain why the
paraffin results came out as such. Forensic Chemist
and Police Senior Inspector Mercedes Diestro
testified:39
Q: Normally madam witness as a soldier or PNP
personnel, in firing an Armalite rifle, how many
hands do they use, in firing an Armalite rifle?
COURT:
No longer as a Forensic Chemist but as PNP
officer.
A: One hand is at the trigger, one in the barrel.
ATTY. SADAIN:
Q: So, both hands are used?
A: Yes.
Q: So that madam witness if these two hands of
certain person are used in firing the Armalite and if
you will conduct paraffin test on these two hands
will it be positive of gun powder nitrates, both
hands?
A: It could be.
COURT:
So, what is your explanation why there was no gun
powder nitrates on the left hand?
A: On this particular case, maybe Manijas or what,
there are so many factors why there is negative on
the other side, the other side is positive, either he
uses his both hands on that trigger wherein there is
overlapping on one hands before the other.
ATTY. SADAIN:
So that in that particular case only one hand will be
affected by the gun powder nitrates?
A: Yes.
Q: Despite the fact two hands are in the trigger?
A: Yes, because it is overlapping.
COURT:
One is covered by the other?
A: Yes, Your Honor.
As pointed out by the Solicitor General, the victim
sustained gunshot wounds in his liver, second and
third ribs and right lung, upper right arm, and on
the head which severed his scalp. The fact that
different parts of his body were hit shows that the
assailant did not have control of the armalite when
he pulled the trigger. This raises the possibility that
only one hand was used when the trigger of the
armalite was pulled. Moreover, the paraffin testing
on accused-appellant was done more than twelve
hours after the incident occurred. Hence, the partial
or total absence of nitrates on his hands is
possible.40
Indeed, there are several reasons why no nitrate
powder may be found on the hands of a suspect.
We recognized several factors which may account
for such absence of gunpowder nitrates on the
hands of the gunman, e.g., because the assailant
had washed his hands after firing the gun or had
worn gloves or the direction of a strong wind was
against the gunman at the time of firing.41 In these
cases, the Court ruled that the absence of nitrates in
a suspect’s hand is not conclusive proof that he did
not fire a gun.42
In any event, the paraffin test which in this case
showed accused-appellant’s right hand to be
positive for nitrates, constitutes only corroborative
evidence of his guilt.43 Even without the paraffin
test, the positive identification by prosecution
witnesses T/Sgt. Bona and M/Sgt. Agadier of
accused-appellant as the assailant is more than
sufficient to convict him of the crime charged.
Third. Accused-appellant Manijas asks why Frank
Anuddin, brother-in-law of victim M/Sgt. Malit,
was not investigated, when the fact is that he was
the initial suspect in this case and the results of
paraffin testing showed both his hands to be
positive for gunpowder nitrates. SPO1 Acuña
explained that no case was filed against Frank
Anuddin because there were no witnesses against
him. On the other hand, as already stated, accused-
appellant was positively identified as having been
at the scene of the crime by two witnesses who
have not been shown to be biased. Neither did the
family of the victim believe that Anuddin had any
participation in the incident.44 In any event, the
fact that Anuddin was involved in the shooting
does not rule out the participation of accused-
appellant. After all, as T/Sgt. Henry Bona and
M/Sgt. Armando Agadier said, they saw another
man beside accused-appellant although they did
not recognize him. The man fled from the scene of
the crime together with accused-appellant.
Fourth. Accused-appellant’s defense is anchored
on denial and alibi. He claims that, at the time of
the shooting, he was in the company of Airman
Artazo at the "Daishita Karaoke Bar," and that
afterwards he went to his cousin’s house in
Baliwasan Chico before finally going home to
Edwin Andrews Air Base.
Alibi may be considered exculpatory when the
guilt of the accused is not established beyond
cavil.45 In such a case, the accused must not only
prove that he was elsewhere at the time of the
commission of the crime but that it was physically
impossible for him to have been at the scene when
the crime took place.46 Here, however, accused-
appellant was positively identified as the assailant.
In addition, his own witness, Airman Artazo,
testified that he left accused-appellant Manijas at
the karaoke bar at around 2:30 o’clock in the
morning. Accused-appellant claimed that from the
"Daishita Karaoke Bar" he went to his cousin’s
house at Baliwasan Chico, but that when he got
there he found the entire household already asleep.
Accordingly, he went home to the air base. There
was thus no witness where accused-appellant was
between 2:30 o’clock to 3:30 o’clock in the
morning of May 28, 2000 when the crime was
committed as he was all by himself. However, no
one could corroborate his story.
Nor was it shown that it was physically impossible and sentencing him to reclusion
for him to have been at the scene of the crime. It perpetua and to indemnify the heirs
was entirely possible that he went directly to the of Procopio Dales in the amount of
vicinity of the snack house from the karaoke bar fifty thousand pesos (P50,000.00)
where Airman Artazo had left him. The places in and twenty thousand pesos
which accused-appellant claimed he was were not (P20,000.00) as moral and exemplary
far from the crime scene. In fact, according to damages. 1
accused-appellant himself, he passed by Gov.
Camins Road where the crime was committed On March 17, 1992,
when he went home to the air base. Second Assistant Provincial
Fifth. We agree, however, that the prosecution Prosecutor of Bohol Rodolfo R.
failed to prove conspiracy. This must be shown as Ligason filed with the Regional Trial
clearly and conclusively as the commission of the Court, an information charging
crime itself.47 Mere suspicion, speculation, Mauricio Gonzaga and Lemuel
relationship, association, and companionship do Compo with murder, committed as
not prove conspiracy.48 T/Sgt. Bona testified that follows: ASICDH
the crime was "planned," but no proof was adduced
to support this allegation or to explain how, why "That
and when such connivance was contrived. on or about the 1st
We find, however, that there was treachery in the day of March,
commission of the crime. Treachery is a sudden 1992, in the
and unexpected attack, without the slightest municipality of
provocation on the part of the victim. It exists Loboc, province
when any of the crimes against person is of Bohol,
committed with the employment of means, Philippines and
methods or forms which tend directly and specially within the
to insure its execution without risk to the offender jurisdiction of this
arising from the defense which the offended party Honorable Court,
might make.49 In the case at bar, the attack was so the above named
sudden that the victim M/Sgt. Malit was not even accused,
able to draw the gun tucked in his waistband. What conspiring,
is more, the weapon used, an M16 Baby Armalite, confederating and
almost certainly made it impossible for the victim mutually helping
to defend himself with his 45-caliber pistol. with one another,
The crime committed by accused-appellant Wilson with intent to kill
Manijas is murder qualified by treachery. Under and without
Article 248 of the Revised Penal Code, the penalty justifiable cause,
for murder is reclusion perpetua to death. The with evident
aggravating circumstance of use of an unlicensed premeditation,
firearm, an M16 Baby Armalite rifle, attended the treachery and
commission of the crime. abuse of superior
This circumstance is offset by the mitigating strength, did then
circumstance of voluntary surrender. As already and there
noted, after learning that he had been found willfully,
positive for gunpowder, accused-appellant lost no unlawfully and
time in reporting to the authorities and surrendered. feloniously attack,
We agree, therefore, that the mitigating assault and shoot
circumstance of voluntary surrender should be with the use of a
appreciated in accused-appellant’s favor. small arrow
WHEREFORE, the decision of the Regional Trial locally known as
Court, Zamboanga City, Branch 16, is "Indian Pana" and
AFFIRMED. stab with the use
SO ORDERED. of a small sharp-
pointed bolo one
[G.R. No. 112990. May 28, 2001.] Procopio Dales
PEOPLE OF THE PHILIPPINES, plaintiff- who was unarmed
appellee, vs. LEMUEL COMPO @ DODONG and unaware of
and MAURICIO GONZAGA @ LONGLONG, the attack, thereby
accused. inflicting mortal
LEMUEL COMPO @ DODONG, accused- injuries on the
appellant. victim's body
DECISION which resulted in
PARDO, J p: the death of the
Accused Lemuel Compo said Procopio
appeals from the decision of the Dales; to the
Regional Trial Court, Bohol, Branch damage and
1, Tagbilaran City, finding him guilty prejudice of the
beyond reasonable doubt of murder heirs of the
 deceased in the
amount to be
proved during the
trial.
"Acts
committed
contrary to the
provisions of
Article 248 of the
Revised Penal
Code, as
amended." 2
Upon arraignment on July
9, 1992, the two accused pleaded not
guilty. 3 Trial on the merits ensued.
In the evening of February
29, 1992, Gilberto Libardo 4 , a
conductor of a passenger bus, went to
a disco place located at sitio Tambis,
barangay Oy, Loboc, Bohol. On
March 1, 1992, around 1:00 in the
morning, Libardo with three
companions left the disco house and
while they were walking toward his
house, Mauricio Gonzaga alias
"Lolong" and Lemuel Compo alias
"Dodong" suddenly accosted him and
asked whether he had seen Procopio
Dales alias "Opiong". He answered
that Opiong was still in the disco
house. Mauricio was carrying a small
bolo in his right hand and a scabbard
in his left hand. Accused Compo was
holding an "Indian Pana" and a
flashlight. On their way home to
Calunasan, Norte, Loboc, Bohol, they
saw Procopio Dales standing in the
middle of the road holding a piece of
wood. Lemuel lighted his flashlight
toward the direction where Procopio
was standing. When Procopio Dales
tried to attack Mauricio with a piece
of wood, he picked up a piece of
stone and hit Dales in the right
shoulder causing the latter to stagger
and rush toward him with small bolo
in his hand. He took another piece of
stone and hit Dales again causing the
small bolo to drop to the ground.
Mauricio picked up the small bolo
and stabbed Procopio Dales several
times until he fell to the ground.
Finding several "Indian Pana" in the
possession of Procopio Dales, he
took one of them and hit Dales with
the "Indian Pana," which imbedded
in his neck. At the time of the
stabbing incident, Lemuel Compo
was not lighting his flashlight toward
the body of Procopio Dales. Lemuel
Compo only used the flashlight when
Mauricio Gonzaga threw a stone at
Procopio Dales. 5
PO3 Pedro Wate of Lila
Police Station testified that at around
2:30 in the morning of March 1,
1992, Antonina Gonzaga, the mother
of Mauricio Gonzaga, went to the
house of PO3 Wate at Barangay
Calunasan, Loboc, Bohol, asking his
help in surrendering her son who had
stabbed someone. While on their way
to the Gonzaga's residence, they met
Mauricio and Lemuel. Mauricio
immediately confessed that he killed
Procopio Dales. After Mauricio
handed the bolo to PO3 Wate, the
latter brought Mauricio and Lemuel
to Loboc Police Station and turned
them over to station guard PO3
Aliceto Torreon. 6
Dr. Evangeline B. Delfin
who examined the victim testified
that he sustained 13 wounds five (5)
were classified as fatal wounds while
seven (7) were non-fatal wounds. 7
The autopsy report 8 states:
"xxx xxx xxx
"II. Post-Mortem Findings:
"A male, fairly nourished, fairly
developed, about
5 ft. or less in
height, lying in
supine position
with multiple stab
wounds on his
face, neck, chest,
abdomen and
back. SCHIcT
"III. Regional Findings:
"Face: a) At the left side a stab
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"b) Stab wound 2.5 cm. in dia. at the left side of e
the face near auricle. r
"Neck: a) Stab wound 2 cm. in y
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 "b) Punctured wound .5 cm. in dia. at left t
supraclavicular fossa hitting the left subclavian .
artery, common carotid artery.
"Chest: a) Stab wound 2.5 cm.
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d "Abdomen: a) Stab wound 2.5
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i "b) Stab wound 2 cm. in dia. at left lumbar hitting
t the descending colon.
t "c) Stab wound 1 cm. in dia. at right subcostal
i area through and through to the back, exit, hitting
n the transverse colon, partly the right, lobe of the
g liver.
t "Back: a) Stab wound 1 cm. in
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 l Accused Lemuel Compo
a interposed the defense of alibi and
r denial. He claimed that on March 1,
y 1992, at around 7:00 p. m., he was in
a the store of Pedro Wate to watch a
r betamax show. Mauricio Gonzaga
e invited him to go to the disco house.
a They arrived at the disco house at
. around 12:00 midnight, shortly
afterwhich, they decided to go home.
On their way home, they saw a
person standing in the middle of the
road whom Mauricio identified as
b) Left Scapular Area Opiong. Lemuel focused his
a) 2 cm. in dia. — superior flashlight on the person and he
a recognized Procopio Dales before the
n latter got lost on the road. When they
g reached the corner of the road, they
l met Gilberto Libardo together with
e three companions. Mauricio asked
Libardo whether he saw Procopio
Dales and the former answered no.
Lemuel and Mauricio walked toward
a lower portion of the road where
b) 3cm. in dia. — body of the Lemuel focused his flashlight and
s they saw Procopio Dales carrying a
c piece of wood. They moved
a backward while Lemuel focused his
p flashlight toward Procopio Dales
u whom he saw. Suddenly Lemuel
l stumbled. He ran away and went
a home. He took his supper and went to
sleep. In the meantime, Mauricio
Gonzaga arrived at his house and
woke him up telling him that he
c) 2.5 cm. in dia. — inferior stabbed to death Procopio Dales.
a Mauricio Gonzaga asked him to
n accompany him to surrender to the
g authorities when Pedro Wate and
l Mauricio's mother arrived. 9
e
On May 11, 1993, the trial
court rendered a decision, the
dispositive portion of which reads as
follows:
"Conclusion:
"PREM
ISES
CONSIDERED,
the Court finds the
Cause accused Mauricio
of death: Gonzaga and
Hypovolemic Lemuel Compo
shock secondary guilty of the crime
to severe of murder
hemorrhage due to punished under
laceration of the Article 248 of the
blood vessels that Revised Penal
supply the brain, Code and hereby
heart, & sentences each
destruction of the one of them to
liver (partly), suffer an
transverse colon, imprisonment of
Descending Reclusion
colon." Perpetua, with the
accessories of the
law and to pay the
cost.
 "The accused-appellant guilty beyond
accused Mauricio reasonable doubt of the crime of
Gonzaga and murder." 13
Lemuel Compo
are further ordered Lemuel, as related by
each to indemnify witness Mauricio Gonzaga, was
the heirs of the merely present before the stabbing
late Procopio incident, holding a flashlight. No
Dales in the other overt act was established to
amount of Fifty prove that Lemuel shared and
Thousand Pesos concurred with the criminal design of
(P50,000.00) Mauricio. The mere presence of
each, and Twenty Lemuel, who was not shown to be
Thousand Pesos armed, at the scene of the crime does
(P20,000.00) each not connote conspiracy. Singularity
representing moral of purpose and unity in the execution
and exemplary of the unlawful objective are
damages and in essential to establish conspiracy. 14
both instance
without subsidiary Mere knowledge,
imprisonment in acquiescence, or agreement to
case of cooperate, is not enough to constitute
insolvency, with one as a party to a conspiracy, absent
the accessories of any active participation in the
the law and to pay commission of the crime, with a view
cost. to the furtherance of the common
design and purpose. 15 Conspiracy
transcends companionship. 16 The
presence and company of Lemuel
were not necessary or essential to the
"The perpetration of the murder.
bolo used in the
commission of the Neither can Lemuel be
crime is hereby considered an accomplice. Article 18
ordered forfeited of the Revised Penal Code provides
in favor of the that an accomplice is one who, not
government. being a principal, cooperates in the
execution of the offense by previous
or simultaneous acts. To be convicted
as such, it is necessary that he be
aware of the criminal intent of the
"SO ORDERED. aSCDcH principal and then cooperate
knowingly or intentionally by
supplying material or moral aid for
the efficacious execution of the
crime. 17 The prosecution, however,
"(Sgd.)
failed to present convincing evidence
establishing that accused-appellant
Lemuel knew of the other accused's
intent to kill Dales. Again, his mere
"Antonio H. Bautista presence at the scene of the crime
and his flight therefrom with the
other accused are not proof of his
participation in the crime. The
quantum of proof required in
Judge." 10 criminal prosecution to support a
conviction has not been reached with
regard to accused-appellant Lemuel.
The oft-repeated truism that the
conviction of an accused must rest
On May 26, 1993, accused not on the weakness of the defense
Lemuel Compo filed with the trial but on the strength of the
court a notice of appeal. 11 prosecution's evidence applies. 18 He
must, therefore, be acquitted on
In this appeal, accused- reasonable doubt. AaEcDS
appellant imputes a single assignment
of error to the trial court, 12 thus: We are convinced that the
"The trial court erred in finding the prosecution failed to overcome the
 constitutional presumption of That
innocence. Basically, accused- on or about the
appellant Lemuel was convicted 24th day of
based on the testimony of the September
conductor of passenger bus Gilberto 2005, in the
Libardo who saw Lemuel carrying an City of Las
"Indian Pana" and a flashlight. Piñas,
Without any testimony positively Philippines, and
identifying accused-appellant as the within the
assailant nor any evidence directly jurisdiction of
linking him as the author of the this Honorable
crime, Lemuel Compo can not be Court, the
convicted of the murder of Dales. above-named
The accused-appellant deserves an accused, with
acquittal and must forthwith be given lewd designs,
back his liberty. did then and
there willfully,
WHEREFORE, on unlawfully and
reasonable doubt, the appealed feloniously
decision is REVERSED and accused- commit a
appellant Lemuel Compo @ Dodong lascivious
is hereby ACQUITTED and ordered conduct upon
RELEASED immediately, unless he the person of
is detained for some other legal one AAA, who
cause. was then a
sixteen (16)
The Director, Bureau of year old minor,
Corrections is ordered to show to this by then and
Court proof of compliance herewith there
within ten (10) days. embracing her,
touching her
Costs de oficio. breast and
private part
SO ORDERED. against her will
and without her
||| (People v. Compo, G.R. No. 112990, [May 28, consent and the
2001], 410 PHIL 514-522) act complained
of is prejudicial
[G.R. No. 206513. October 20, 2015.] to the physical
and
MUSTAPHA DIMAKUTA y MARUHOM, psychological
petitioner, vs. PEOPLE OF THE development of
PHILIPPINES, respondent. the
DECISION complainant. 2
PERALTA, J p:
The Court is now faced
with one of the predicaments I
discussed in my Dissenting and
Concurring Opinion in Colinares v.
People. 1 The question regarding the After trial, the RTC
application of the Probation Law is promulgated its Decision 3 which
again inescapably intertwined with convicted petitioner of the crime
the present petition. Consequently, I charged and sentenced him to suffer
must reiterate my assertions and an indeterminate penalty of
arguments in Colinares to the case at imprisonment ranging from ten (10)
bar. years of prision mayor, as minimum,
to seventeen (17) years, four (4)
In the present controversy, months and one (1) day of reclusion
petitioner Mustapha Dimakuta y temporal, as maximum, with the
Maruhom alias Boyet was indicted accessory penalty of perpetual
for Violation of Section 5 Paragraph absolute disqualification. In addition,
(b), Article III of Republic Act (R.A.) he was directed to pay a fine of
No. 7610 or the Special Protection of P20,000.00, civil indemnity of
Children Against Abuse, Exploitation P25,000.00, and moral damages of
and Discriminatory Act. The P25,000.00. 4
Information reads:
Feeling aggrieved,
petitioner elevated the case to the
Court of Appeals (CA) arguing,
among other things, that even
assuming he committed the acts
imputed, still there is no evidence
showing that the same were done
without the victim's consent or
through force, duress, intimidation or
violence upon her. Surprisingly,
when asked to comment on the
appeal, the Office of the Solicitor
General (OSG), relying heavily on
People v. Abello, 5 opined that
petitioner should have been convicted
only of Acts of Lasciviousness under
Article 336 of the Revised Penal
Code (RPC) in view of the
prosecution's failure to establish that
the lascivious acts were attended by
force or coercion because the victim
was asleep at the time the alleged
acts were committed. CAIHTE
On June 28, 2012, the CA
rendered a Decision 6 adopting the
recommendation of the OSG. In
modifying the RTC Decision,
petitioner was found guilty of Acts of
Lasciviousness under Article 336 of
the RPC and was sentenced to suffer
the indeterminate penalty of six (6)
months of arresto mayor, as
minimum, to four (4) years and two
(2) months of prision correccional, as
maximum. Likewise, he was ordered
to pay P20,000.00 as civil indemnity
and P30,000.00 as moral damages.
Petitioner received a copy
of CA Decision on July 6, 2012. 7
Instead of further appealing the case,
he filed on July 23, 2012 before the
CA a manifestation with motion to
allow him to apply for probation
upon remand of the case to the RTC.
8 Petitioner invoked the case of
Colinares v. People 9 which allowed
petitioner therein to apply for
probation after his sentence was later
reduced on appeal by the Supreme
Court.
The CA issued a
Resolution on September 3, 2012
denying petitioner's manifestation
with motion. 10 It was ruled that
Colinares is inapplicable since
petitioner therein raised as sole issue
the correctness of the penalty
imposed and claimed that the
evidence presented warranted only a
conviction for the lesser offense.
Instead, the appellate court viewed as
appropriate the case of Lagrosa v.
People, 11 wherein the application
for probation was denied because
petitioners therein put in issue on
appeal the merits of their conviction
and did not simply assail the
propriety of the penalties imposed.
Petitioner filed a motion
for reconsideration, 12 but it was
denied in a Resolution 13 dated
March 13, 2013; hence, this petition.
The petition should be
denied.
At the outset, tracing the
evolution of the present Probation
Law is warranted in order to better
understand and apply the wisdom of
its framers to cases invoking its
application.
In this jurisdiction, the
concept of probation was introduced
during the American colonial period.
14 For juvenile delinquents, Act No.
3203 15 was enacted on December 3,
1924. It was later amended by Act
Nos. 3309, 16 3559, 17 and 3725. 18
As to offenders who are eighteen
years old and above, Act No. 4221 19
was passed by the legislature and
took effect on August 7, 1935. Said
Act allowed defendants who are
convicted and sentenced by a Court
of First Instance or by the Supreme
Court on appeal, except those who
are convicted of offenses enumerated
in Section 8 thereof, 20 to be placed
on probation upon application after
the sentence has become final and
before its service has begun. 21
However, We declared in People v.
Vera 22 that Act No. 4221 is
unconstitutional and void as it
constitutes an improper and unlawful
delegation of legislative authority to
the provincial boards.
During the martial law
period, then President Ferdinand E.
Marcos issued Presidential Decree
(P.D.) No. 968 23 on July 24, 1976.
Originally, P.D. No. 968 allowed the
filing of an application for probation
at any time after the defendant had
been convicted and sentenced.
Section 4 of which provides:
SEC. 4. Grant of Probation. — Subject to the
provisions of this Decree, the court may, after it
shall have convicted and sentenced a defendant and
upon application at any time of said defendant,
suspend the execution of said sentence and place
the defendant on probation for such period and
upon such terms and conditions as it may deem
best.
Prob
ation may be
granted
whether the
sentence
 imposes a term within ten days
of from receipt of
imprisonment the notification.
or a fine only.
An application
for probation
shall be filed
with the trial
court, with Prob
notice to the ation may be
appellate court granted
if an appeal has whether the
been taken sentence
from the imposes a term
sentence of of
conviction. The imprisonment
filing of the or a fine with
application subsidiary
shall be deemed imprisonment
a waiver of the in case of
right to appeal, insolvency. An
or the application for
automatic probation shall
withdrawal of a be filed with
pending appeal. the trial court,
An order with notice to
granting or the appellate
denying court if an
probation shall appeal has been
not be taken from the
appealable. 24 sentence of
conviction. The
filing of the
application
shall be deemed
a waiver of the
Later, the filing of an right to appeal,
application for probation pending or the
appeal was still allowed when automatic
Section 4 of P.D. No. 968 was withdrawal of a
amended by P.D. No. 1257 25 on pending appeal.
December 1, 1977 by providing that In the latter
such application may be made after case, however,
the defendant had been convicted and if the
sentenced but before he begins to application is
serve his sentence. Thus: filed on or after
the date of the
SEC. 4. Grant of Probation. — Subject to the judgment of the
provisions of this Decree, the court may, after it appellate court,
shall have convicted and sentenced a defendant but said application
before he begins to serve his sentence and upon his shall be acted
application, suspend the execution of said sentence upon by the
and place the defendant on probation for such trial court on
period and upon such terms and conditions as it the basis of the
may deem best. judgment of the
The appellate court.
prosecuting
officer
concerned shall
be notified by
the court of the
filing of the An
application for order granting
probation and or denying
he may submit probation shall
his comment on not be
such appealable. 26
application
 On October 5, 1985, WHEREAS, the process of criminal investigation,
Section 4 was subsequently amended prosecution, conviction and appeal entails too
by P.D. No. 1990. 27 Henceforth, the much time and effort, not to mention the huge
policy has been to allow convicted expenses of litigation, on the part of the State;
and sentenced defendant to apply for WHEREAS, the time, effort and expenses of the
probation within the 15-day period Government in investigating and prosecuting
for perfecting an appeal. As accused persons from the lower courts up to the
modified, Section 4 of the Probation Supreme Court, are oftentimes rendered nugatory
Law now reads: DETACa when, after the appellate Court finally affirms the
judgment of conviction, the defendant applies for
SEC. 4. Grant of Probation. — Subject to the and is granted probation;
provisions of this Decree, the trial court may, after WHEREAS, probation was not intended as an
it shall have convicted and sentenced a defendant escape hatch and should not be used to obstruct
and upon application by said defendant within the and delay the administration of justice, but should
period for perfecting an appeal, suspend the be availed of at the first opportunity by offenders
execution of the sentence and place the defendant who are willing to be reformed and rehabilitated;
on probation for such period and upon such terms WHEREAS, it becomes imperative to remedy the
and conditions as it may deem best; Provided, that problems abovementioned confronting our
no application for probation shall be entertained or probation system[.]
granted if the defendant has perfected the appeal Observing the
from the judgment of conviction. developments in our Probation Law,
Prob the Court settled in Llamado v. Court
ation may be of Appeals: 29
granted
whether the Exa
sentence mination of
imposes a term Section 4, after
of its amendment
imprisonment by P.D. No.
or a fine only. 1257, reveals
An application that it had
for probation established a
shall be filed prolonged but
with the trial definite period
court. The during which
filing of the an application
application for probation
shall be deemed may be granted
a waiver of the by the trial
right to appeal. court. That
period was:
"After [the trial
court] shall
have convicted
and sentenced a
An defendant but
order granting before he
or denying begins to serve
probation shall his sentence."
not be Clearly, the
appealable. 28 cut-off time —
commencement
of service of
sentence —
takes place not
only after an
The reason for the
appeal has been
disallowance may be inferred from
taken from the
the preamble of P.D. No. 1990, thus:
sentence of
WHEREAS, it has been the sad experience that conviction, but
persons who are convicted of offenses and who even after
may be entitled to probation still appeal the judgment has
been rendered
judgment of conviction even up to the Supreme
Court, only to pursue their application for by the appellate
probation when their appeal is eventually court and after
dismissed; judgment has
become final.
Indeed, in this
 last situation, has perfected
Section 4, as an appeal from
amended by the judgment of
P.D. No. 1257 conviction." It
provides that is worthy of
"the application note too that
[for probation] Section 4 in its
shall be acted present form
upon by the has dropped the
trial court on phrase which
the basis of the said that the
judgment of the filing of an
appellate application for
court"; for the probation
appellate court means "the
might have automatic
increased or withdrawal of a
reduced the pending
original penalty appeal." The
imposed by the deletion is quite
trial court. . . . logical since an
application for
probation can
no longer be
filed once an
appeal is
xxx xxx xxx perfected; there
can, therefore,
be no pending
appeal that
would have to
be withdrawn.
In sharp contrast with
Section 4 as
amended by PD
No. 1257, in its
present form,
Section 4 xxx xxx xxx
establishes a
much narrower
period during
which an
application for
probation may We
be filed with find ourselves
the trial court: unable to
"after [the trial accept the
court] shall eloquently
have convicted stated
and sentenced a arguments of
defendant and petitioner's
— within the counsel and the
period for dissenting
perfecting an opinion. We are
appeal —." As unable to
if to provide persuade
emphasis, a ourselves that
new proviso Section 4 as it
was appended now stands, in
to the first authorizing the
paragraph of trial court to
Section 4 that grant probation
expressly "upon
prohibits the application by
grant of an [the] defendant
application for within the
probation "if period for
the defendant perfecting an
 appeal" and in form part of a
reiterating in statute, strictly
the proviso that speaking; they
are not part of
the operative
language of the
statute.
Nonetheless,
"no application for probation whereas clauses
shall be may be helpful
entertained or to the extent
granted if the they articulate
defendant has the general
perfected an purpose or
appeal from the reason
judgment of underlying a
conviction." new enactment,
in the present
case, an
enactment
which
drastically but
did not really mean to refer
clearly changed
to the fifteen-
the substantive
day period
content of
established, as
Section 4
indicated
existing before
above, by B.P.
the
Blg. 129, the
promulgation
Interim Rules
of P.D. No.
and Guidelines
1990. Whereas
Implementing
clauses,
B.P. Blg. 129
however,
and the 1985
cannot control
Rules on
the specific
Criminal
terms of the
Procedure, but
statute; in the
rather to some
instant case, the
vague and
whereas clauses
undefined time,
of P.D. No.
i.e., "the
1990 do not
earliest
purport to
opportunity" to
control or
withdraw the
modify the
defendant's
terms of
appeal. The
Section 4 as
whereas clauses
amended. Upon
invoked by
the other hand,
petitioner did
the term
not, of course,
"period for
refer to the
perfecting an
fifteen-day
appeal" used in
period. There
Section 4 may
was absolutely
be seen to
no reason why
furnish
they should
specification
have so referred
for the loose
to that period
language "first
for the
opportunity"
operative words
employed in the
of Section 4
fourth whereas
already do
clause.
refer, in our
"Perfection of
view, to such
an appeal" is,
fifteen-day
of course, a
period.
term of art but
Whereas
it is a term of
clauses do not
art widely
 understood by
lawyers and
judges and
Section 4 of the
Probation Law
addresses itself
essentially to
judges and
lawyers.
"Perfecting an
appeal" has no
sensible
meaning apart
from the
meaning given
to those words
in our
procedural law
and so the law-
making agency
could only have
intended to
refer to the
meaning of
those words in
the context of
procedural law.
30 aDSIHc
In Sable v. People, et al.,
31 this Court stated that Section 4 of
the Probation Law was amended
precisely to put a stop to the practice
of appealing from judgments of
conviction even if the sentence is
probationable, for the purpose of
securing an acquittal and applying for
the probation only if the accused fails
in his bid. 32 The Probation Law
"expressly requires that an accused
must not have appealed his
conviction before he can avail
himself 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."
33
Verily, Section 4 of the
Probation Law provides that the
application for probation must be
filed with the trial court within the
15-day period for perfecting an
appeal. The need to file it within such
period is intended to encourage
offenders, who are willing to be
reformed and rehabilitated, to avail
themselves of probation at the first
opportunity. 34 If the application for
probation is filed beyond the 15-day
period, then the judgment becomes
final and executory and the lower
court can no longer act on the
application for probation. On the
other hand, if a notice of appeal is
perfected, the trial court that rendered
the judgment of conviction is
divested of any jurisdiction to act on
the case, except the execution of the
judgment when it has become final
and executory.
In view of the latest
amendment to Section 4 of the
Probation Law that "no application
for probation shall be entertained or
granted if the defendant has perfected
an appeal from the judgment of
conviction," prevailing jurisprudence
35 treats appeal and probation as
mutually exclusive remedies because
the law is unmistakable about it. 36
Indeed, the law is very clear and a
contrary interpretation would counter
its envisioned mandate. 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. 37 To be
sure, the remedy of convicted felons
who want to avail of the benefits of
probation even after the remedy of an
appeal is to go to the Congress and
ask for the amendment of the law. To
surmise a converse construal of the
provision would be dangerously
encroaching on the power of the
legislature to enact laws and is
tantamount to judicial legislation.
With due respect,
however, to the ponente and the
majority opinion in Colinares, 38 the
application of the Probation Law in
the said case deserves a second hard
look so as to correct the mistake in
the application of the law in that
particular case and in similar cases
which will be filed before the courts
and inevitably elevated to Us like this
petition.
To refresh, Colinares
concluded that since the trial court
imposed a penalty beyond what is
allowed by the Probation Law, albeit
erroneously, the accused was
deprived of his choice to apply for
probation and instead was compelled
to appeal the case. The reprehensible
practice intended to be avoided by
the law was, therefore, not present
when he appealed the trial court's
decision. Taking into account that the Probation Law is outlined in its stated
accused argued in his appeal that the purposes, to wit:
evidence presented against him
warranted his conviction only for (a) p
attempted, not frustrated, homicide, romote the
the majority of the Court opined that correction and
the accused had purposely sought to rehabilitation of
bring down the impossible penalty in an offender by
order to allow him to apply for providing him
probation. with
individualized
It was obvious then, as it treatment;
is now, that the accused in Colinares ETHIDa
should not have been allowed the
benefit of probation. As I have
previously stated and insisted upon,
probation is not a right granted to a
convicted offender; it is a special
privilege granted by the State to a (b) p
penitent qualified offender, 39 who rovide an
does not possess the disqualifications opportunity for
under Section 9 of P.D. No. 968, as the reformation
amended. 40 Likewise, the Probation of a penitent
Law is not a penal law for it to be offender which
liberally construed to favor the might be less
accused. 41 probable if he
were to serve a
In the American law prison
paradigm, probation is considered as sentence; and
an act of clemency and grace, not a
matter of right. 42 It is a privilege
granted by the State, not a right to
which a criminal defendant is
entitled. 43 In City of Aberdeen v.
(c) p
Regan, 44 it was pronounced that:
revent the
The commission of
granting of a offenses. 45
deferred
sentence and
probation,
following a
plea or verdict As I have previously
of guilty, is a indicated in Colinares, if this Court
rehabilitative will adopt as jurisprudential doctrine
measure and, as the opinion that an accused may still
such, is not a be allowed to apply for probation
matter of right even if he has filed a notice of
but is a matter appeal, it must be categorically stated
of grace, that such appeal must be limited to
privilege, or the following grounds:
clemency
granted to the 1. W
deserving. hen the appeal
is merely
intended for the
correction of
the penalty
imposed by the
As such, even in the
lower court,
American criminal justice model,
which when
probation should be granted only to
corrected
the deserving or, in our system, only
would entitle
to qualified "penitent offenders" who
the accused to
are willing to be reformed and
apply for
rehabilitated. Corollarily, in this
probation; and
jurisdiction, the wisdom behind the
 2. W
hen the appeal
is merely
intended to
review the
crime for which
the accused was
convicted and
that the accused
should only be
liable to the
lesser offense
which is
necessarily
included in the
crime for which
he was
originally
convicted and
the proper
penalty
imposable is
within the
probationable
period.
In both instances, the
penalty imposed by the trial court for
the crime committed by the accused
is more than six years; hence, the
sentence disqualifies the accused
from applying for probation. The
accused should then be allowed to
file an appeal under the afore-stated
grounds to seek a review of the crime
and/or penalty imposed by the trial
court. If, on appeal, the appellate
court finds it proper to modify the
crime and/or the penalty imposed,
and the penalty finally imposed is
within the probationable period, the
accused should still be allowed to
apply for probation.
In addition, before an
appeal is filed based on the grounds
enumerated above, the accused
should first file a motion for
reconsideration of the decision of the
trial court anchored on the above-
stated grounds and manifest his intent
to apply for probation if the motion is
granted. The motion for
reconsideration will give the trial
court an opportunity to review and
rectify any errors in its judgment,
while the manifestation of the
accused will immediately show that
he is agreeable to the judgment of
conviction and does not intend to
appeal from it, but he only seeks a
review of the crime and/or penalty
imposed, so that in the event that the
penalty will be modified within the
probationable limit, he will
immediately apply for probation.
Without such motion for
reconsideration, the notice of appeal
should be denied outright.
The notice of appeal
should contain the following
averments:
(1) that an earlier motion
for reconsideration was filed but was
denied by the trial court;
(2) that the appeal is only
for reviewing the penalty imposed by
the lower court or the conviction
should only be for a lesser crime
necessarily included in the crime
charged in the information; and
(3) that the accused-
appellant is not seeking acquittal of
the conviction.
To note, what Section 4 of
the Probation Law prohibits is an
appeal from the judgment of
conviction, which involves a review
of the merits of the case and the
determination of whether the accused
is entitled to acquittal. However,
under the recommended grounds for
appeal which were enumerated
earlier, the purpose of the appeal is
not to assail the judgment of
conviction but to question only the
propriety of the sentence, particularly
the penalty imposed or the crime for
which the accused was convicted, as
the accused intends to apply for
probation upon correction of the
penalty or conviction for the lesser
offense. If the CA finds it proper to
modify the sentence, and the penalty
finally imposed by the appellate court
is within the probationable period, or
the crime for which the accused is
eventually convicted imposes a
probationable penalty, application for
probation after the case is remanded
to the trial court for execution should
be allowed.
It is believed that the
recommended grounds for appeal do
not contravene Section 4 of the
Probation Law, which expressly
prohibits only an appeal from the
judgment of conviction. In such
instances, the ultimate reason of the
accused for filing the appeal based on
the afore-stated grounds is to
determine whether he may avail of
probation based on the review by the
appellate court of the crime and/or
penalty imposed by the trial court.
Allowing the afore-stated grounds for
appeal would give an accused the 4 of the Probation Law prohibits
opportunity to apply for probation if granting an application for probation
his ground for appeal is found to be if an appeal from the sentence of
meritorious by the appellate court, conviction has been perfected by the
thus, serving the purpose of the accused.
Probation Law to promote the
reformation of a penitent offender In this case, petitioner
outside of prison. appealed the trial court's judgment of
conviction before the CA alleging
On the other hand, that it was error on the part of the
probation should not be granted to RTC to have found him guilty of
the accused in the following violating Section 5 (b), Article III of
instances: R.A. No. 7610. He argued that the
RTC should not have given much
1. W faith and credence to the testimony of
hen the accused the victim because it was tainted with
is convicted by inconsistencies. Moreover, he went
the trial court on to assert that even assuming he
of a crime committed the acts imputed on him,
where the still there was no evidence showing
penalty that the lascivious acts were
imposed is committed without consent or
within the through force, duress, intimidation or
probationable violence because the victim at that
period or a fine, time was in deep slumber. It is
and the accused apparent that petitioner anchored his
files a notice of appeal on a claim of innocence
appeal; and and/or lack of sufficient evidence to
support his conviction of the offense
charged, which is clearly inconsistent
with the tenor of the Probation Law
that only qualified penitent offender
are allowed to apply for probation.
2. W The CA, therefore, did not err in
hen the accused applying the similar case of Lagrosa
files a notice of v. People 46 wherein the
appeal which protestations of petitioners therein
puts the merits did not simply assail the propriety of
of his the penalties imposed but meant a
conviction in profession of guiltlessness, if not
issue, even if complete innocence. cSEDTC
there is an
alternative To be sure, if petitioner
prayer for the intended in the first instance to be
correction of entitled to apply for probation he
the penalty should have admitted his guilt and
imposed by the buttressed his appeal on a claim that
trial court or for the penalty imposed by the RTC was
a conviction to erroneous or that he is only guilty of
a lesser crime, a lesser offense necessarily included
which is in the crime for which he was
necessarily originally convicted. Unfortunately
included in the for him, he already perfected his
crime in which appeal and it is late in the day to avail
he was the benefits of probation despite the
convicted imposition of the CA of a
where the probationable penalty.
penalty is
within the As regards the CA
probationable Decision convicting petitioner of the
period. crime of Acts of Lasciviousness
under Article 336 of the RPC, such
conclusion clearly contravenes the
law and existing jurisprudence.

Petitioner was charged and

Both instances violate the convicted by the trial court with
spirit and letter of the law, as Section violation of Section 5 (b), Article III
 of R.A. No. 7610 based on the s
complaint of a sixteen (16)-year-old e
girl for allegedly molesting her by o
touching her breast and vagina while r
she was sleeping. The provision l
reads: a
s
SEC. 5. Child Prostitution and Other Sexual c
Abuse. — Children, whether male or female, who i
for money, profit, or any other consideration or due v
to the coercion or influence of any adult, syndicate i
or group, indulge in sexual intercourse or o
lascivious conduct, are deemed to be children u
exploited in prostitution and other sexual abuse. s
The c
penalty of o
reclusion n
temporal in its d
medium period u
to reclusion c
perpetua shall t
be imposed w
upon the i
following: t
h
a
c
h
i
xxx xxx xxx l
d
e
x
p
l
o
i
t
(b) Those who e
c d
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m n
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v a
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e h
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The elements of sexual
l
abuse are as follows:
b
e
1. The accused commits the act
r
of
e
sexual
c
interco
l
urse or
u
lascivio
s
us
i
conduct
o
.
n
t
e
m
p 2. The said act is performed
o with a
r child
a exploit
l ed in
i prostitu
 tion or n
subject ;
ed to o
sexual r
abuse.

b. When the offended party is

3. The child, whether male or d
female, e
is p
below r
18 i
years v
of age. e
47 d
o
f
r
e
Under Section 5, Article a
III of R.A. No. 7610, a child is s
deemed subjected to other sexual o
abuse when he or she indulges in n
lascivious conduct under the coercion o
or influence of any adult. 48 This r
statutory provision must be o
distinguished from Acts of t
Lasciviousness under Articles 336 h
and 339 of the RPC. As defined in e
Article 336 of the RPC, Acts of r
Lasciviousness has the following w
elements: i
s
(1) That the offender commits e
any act u
of n
lascivio c
usness o
or n
lewdne s
ss; c
i
o
u
s
(2) That it is done under any of
;
the
o
followi
r
ng
circums
tances:

c. When the offended party is

u
n
a. By using force or
d
i
e
n
r
t
1
i
2
m
y
i
e
d
a
a
r
t
s
i
o
o
 f Therefore, if the victim of
a the lascivious acts or conduct is over
g 12 years of age and under eighteen
e (18) years of age, the accused shall
; be liable for:
a
n 1. Ot
d her acts of
lasciviousness
under Art. 339
of the RPC,
where the
(3) That the offended party is victim is a
another virgin and
person consents to the
of lascivious acts
either through abuse
sex. 49 of confidence
or when the
victim is single
or a widow of
good reputation
Article 339 of the RPC and consents to
likewise punishes acts of the lascivious
lasciviousness committed with the acts through
consent of the offended party if done deceit, or;
by the same persons and under the SDAaTC
same circumstances mentioned in
Articles 337 and 338 of the RPC, to
wit:

1. if
committed 2. A
against a virgin cts of
over twelve lasciviousness
years and under under Art. 336
eighteen years if the act of
of age by any lasciviousness
person in public is not covered
authority, by lascivious
priest, home- conduct as
servant, defined in R.A.
domestic, No. 7610. In
guardian, case the acts of
teacher, or any lasciviousness
person who, in is covered by
any capacity, lascivious
shall be conduct under
entrusted with R.A. No. 7610
the education or and it is done
custody of the through
woman; or coercion or
influence,
which
establishes
absence or lack
of consent, then
2. if Art. 336 of the
committed by RPC is no
means of deceit longer
against a applicable
woman who is
single or a
widow of good
reputation, over
twelve but
under eighteen 3. Se
years of age. ction 5(b),
 Article III of
R.A. No. 7610,
where there
was no consent
on the part of
the victim to
the lascivious
conduct, which
was done
through the
employment of
coercion or
influence. The
offender may
likewise be
liable for sexual
abuse under
R.A. No. 7610
if the victim is
at least eighteen
(18) years and
she is unable to
fully take care
of herself or
protect herself
from abuse,
neglect, cruelty,
exploitation or
discrimination
because of a
physical or
mental
disability or
condition. 50
Article 226-A, paragraph
2 of the RPC, punishes inserting of
the penis into another person's mouth
or anal orifice, or any instrument or
object, into the genital or anal orifice
of another person if the victim did
not consent either it was done
through force, threat or intimidation;
or when the victim is deprived of
reason or is otherwise unconscious;
or by means of fraudulent
machination or grave abuse of
authority as sexual assault as a form
of rape. However, in instances where
the lascivious conduct is covered by
the definition under R.A. No. 7610,
where the penalty is reclusion
temporal medium, and the act is
likewise covered by sexual assault
under Article 266-A, paragraph 2 of
the RPC, which is punishable by
prision mayor, the offender should be
liable for violation of Section 5 (b),
Article III of R.A. No. 7610, where
the law provides for the higher
penalty of reclusion temporal
medium, if the offended party is a
child victim. But if the victim is at
least eighteen (18) years of age, the
offender should be liable under Art.
266-A, par. 2 of the RPC and not
R.A. No. 7610, unless the victim is at
least eighteen (18) years and she is
unable to fully take care of herself or
protect herself from abuse, neglect,
cruelty, exploitation or discrimination
because of a physical or mental
disability or condition, in which case,
the offender may still be held liable
for sexual abuse under R.A. No.
7610.
There could be no other
conclusion, a child is presumed by
law to be incapable of giving rational
consent to any lascivious act, taking
into account the constitutionally
enshrined State policy to promote the
physical, moral, spiritual, intellectual
and social well-being of the youth, as
well as, in harmony with the
foremost consideration of the child's
best interests in all actions
concerning him or her. 51 This is
equally consistent with the declared
policy of the State to provide special
protection to children from all forms
of abuse, neglect, cruelty,
exploitation and discrimination, and
other conditions prejudicial to their
development; provide sanctions for
their commission and carry out a
program for prevention and
deterrence of and crisis intervention
in situations of child abuse,
exploitation, and discrimination. 52
Besides, if it was the intention of the
framers of the law to make child
offenders liable only of Article 266-
A of the RPC, which provides for a
lower penalty than R.A. No. 7610,
the law could have expressly made
such statements.
As correctly found by the
trial court, all the elements of sexual
abuse under Section 5 (b), Article III
of R.A. No. 7610 are present in the
case at bar.
First, petitioner's lewd advances of touching the
breasts and vagina of his hapless victim constitute
lascivious conduct as defined in Section 32, Article
XIII of the Implementing Rules and Regulations
(IRR) of R.A. No. 7610:
[T]he intentional touching,
either directly
or through
clothing, of the
genitalia, anus,
groin, breast,
inner thigh, or
buttocks, or the
introduction of
any object into
the genitalia,
anus or mouth,
 of any person, quell all forms
whether of the of abuse,
same or neglect, cruelty,
opposite sex, exploitation
with an intent and
to abuse, discrimination
humiliate, against
harass, degrade, children,
or arouse or prejudicial as
gratify the they are to their
sexual desire of development.
any person,
bestiality,
masturbation,
lascivious
exhibition of
the genitals or In
pubic area of a this relation,
person. 53 case law further
clarifies that
sexual
intercourse or
lascivious
conduct under
Second, petitioner clearly has moral ascendancy the coercion or
over the minor victim not just because of his influence of
relative seniority but more importantly due to the any adult exists
presumed presence of mutual trust and confidence when there is
between them by virtue of an existing employment some form of
relationship, AAA being a domestic helper in compulsion
petitioner's household. Notably, a child is equivalent to
considered as sexually abused under Section 5 (b) intimidation
of R.A. No. 7610 when he or she is subjected to which subdues
lascivious conduct under the coercion or influence the free
of any adult. Intimidation need not necessarily be exercise of the
irresistible. It is sufficient that some compulsion offended party's
equivalent to intimidation annuls or subdues the free will.
free exercise of the will of the offended party. 54 Corollary
The law does not require physical violence on the thereto, Section
person of the victim; moral coercion or ascendancy 2(g) of the
is sufficient. 55 On this point, Caballo v. People 56 Rules on Child
explicated: Abuse Cases
As it conveys that
is presently sexual abuse
worded, involves the
Section 5, element of
Article III of influence which
RA 7610 manifests in a
provides that variety of
when a child forms. It is
indulges in defined as:
sexual
intercourse or
any lascivious
conduct due to
the coercion or
influence of The employment,
any adult, the u
child is deemed s
to be a "child e
exploited in ,
prostitution and p
other sexual e
abuse." In this r
manner, the law s
is able to act as u
an effective a
deterrent to s
i r
o p
n e
, r
i s
n o
d n
u t
c o
e e
m n
e g
n a
t g
, e
e i
n n
t ,
i s
c e
e x
m u
e a
n l
t i
o n
r t
c e
o r
e c
r o
c u
i r
o s
n e
o o
f r
a l
c a
h s
i c
l i
d v
t i
o o
e u
n s
g c
a o
g n
e d
i u
n c
, t
o o
r r
a t
s h
s e
i m
s o
t l
a e
n s
o t
t a
h t
e i
 o use of . . .
n power to
, compel another
p to submit to the
r wishes of one
o who wields it."
s 57
t
i
t
u
t
i Finally, the victim is 16 years of age at the time of
o the commission of the offense. Under Section 3 (a)
n of R.A. No. 7610, "children" refers to "persons
, below eighteen (18) years of age or those over but
o unable to fully take care of themselves or protect
r themselves from abuse, neglect, cruelty,
i exploitation or discrimination because of a
n physical or mental disability or condition."
c The decision of the trial
e court finding the petitioner guilty of
s Violation of Section 5 (b), Article III
t R.A. No. 7610 should have been
w upheld by the CA instead of
i erroneously adopting the
t recommendation of the OSG, which
h inaccurately relied on People v.
c Abello. 58 In said case, the decisive
h factor for the acquittal of the accused
i was not the absence of coercion or
l intimidation on the offended party,
d who was then sleeping at the time the
r lascivious act was committed, but the
e fact that the victim could not be
n considered as a "child" under R.A.
. No. 7610. This Court held that while
a the twenty-one year old woman has
c polio as a physical disability that
E rendered her incapable of normal
H function, the prosecution did not
C present any testimonial or
D documentary evidence — any
medical evaluation or finding from a
qualified physician, psychologist or
psychiatrist — attesting that the
physical condition rendered her
incapable of fully taking care of
herself or of protecting herself
against sexual abuse.

Thus, it is clear that

To petitioner could not have been
note, the term entitled to apply for probation in the
"influence" first place. Regrettably, since neither
means the the accused nor the OSG questioned
"improper use the CA Decision, it has attained
of power or finality and to correct the error at this
trust in any way stage is already barred by the right of
that deprives a the accused against double jeopardy.
person of free
will and Based on the above
substitutes disquisitions, the petitioner should be
another's denied the benefit of the Probation
objective." Law and that the Court should adopt
Meanwhile, the recommendations above-stated in
"coercion" is situations where an accused files an
the "improper appeal for the sole purpose of
 correcting the penalty imposed to
qualify him for probation or where he
files an appeal specifically claiming
that he should be found guilty of a
lesser offense necessarily included
with the crime originally filed with a
prescribed penalty which is
probationable.

SO ORDERED.
||| (Dimakuta y Maruhom v. People, G.R. No.
206513, [October 20, 2015])