Case names for Articles 11- 12, RPC 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Marzalado vs People People vs Delima Mamangun vs People People vs Bentres People vs Barroga (missing) People vs Beronilla People vs Villanueva People vs Gimena (missing) People vs Lacena Ortega vs People

FIRST DIVISION G.R. No. 152997 November 10, 2004

SALVADOR MARZALADO,* JR., petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

QUISUMBING, J.: This petition for review on certiorari assails the Decision1 dated November 9, 2001 of the Court of Appeals, in CA-G.R. CR No. 22645, which affirmed the Decision2 dated November 5, 1998 of the Regional Trial Court (RTC) of Quezon City, Branch 79, in Criminal Case No. Q-98-74695. The RTC upheld the Metropolitan Trial Court (MeTC) of Quezon City, Branch 35, convicting herein petitioner Salvador Marzalado, Jr., for violation of Article 2803 of the Revised Penal Code on Qualified Trespass to Dwelling, and sentencing him to suffer the penalty of two (2) months and one (1) day of arresto mayor and to pay a fine of P500 and to pay the costs. 4 This petition likewise assails the Resolution5 dated April 23, 2002, of the Court of Appeals, denying the petitioner's Motion for Reconsideration. The antecedent facts are as follows: Cristina N. Albano was the lessee of a unit in the house owned by Luz Marzalado, the mother of herein petitioner, Salvador Marzalado, Jr. Sometime in February 1993, Luz Marzalado filed an ejectment case against Albano. Judgment was rendered against Albano, who was ordered to vacate the leased premises and to pay the unpaid rentals. Albano appealed to the RTC. In September 1993, during the pendency of the appeal, the electricity supply of the unit was cut off due to nonpayment of bills. As a result, Albano transferred her children to her father's house, four houses away, leaving a maid to sleep in the unit. Albano claims that on November 2, 1993, at around 1:00 p.m., she went to her unit. She noticed that the lead pipe she used to hang clothes to dry was missing. When she returned at about 8:00 a.m. the following day,

November 3, 1993, she discovered the padlock of the main door changed, preventing her from entering the premises. She went to see petitioner but he was not around. On November 4, 1993, Albano again returned to her unit. She peeked through the window jalousies and saw that the place was already empty. She immediately reported the matter to the barangay officials, who in turn, advised her to go to the police. Thereafter, she filed a complaint for grave coercion, qualified trespass to dwelling and theft against petitioner. On November 14, 1993, Albano tried to see the accused, but again failed. This time she noticed that the roofing of her unit had been removed and the main door locked from the inside. She was informed that on November 1, 1993, Marzalado, Jr., and his female companion took her lead pipe and on November 2, 1993, Marzalado, Jr., took her personal belongings and brought them inside his house. Accordingly, Albano filed a suit for trespass to dwelling with the MeTC of Quezon City against Marzalado, Jr., thus: The undersigned accuses SALVADOR MAR[Z]ALADO, JR., of the crime of Trespass to Dwelling, committed as follows: That on or about the 2nd day of November, 1993, in Quezon City, Philippines, the above-named accused without any justifiable cause, did then and there, wilfully, unlawfully and feloniously enter the dwelling place of CRISTINA N. ALBANO located at No. 241 Road 1, Pag-Asa, this City, against the latter's will and without her consent or any members of the household, to the damage and prejudice of the said offended party. CONTRARY TO LAW. Quezon City, Philippines, March 16, 1994.6 On May 12, 1994, the accused was arraigned and pleaded not guilty to the charge. A summary hearing followed, with Albano and her witness, Narciso Raniedo, testifying for the prosecution. Raniedo, the owner of the house fronting Albano's unit, testified that at around 5:00 p.m., on November 1, 1993, he was about to enter his house, when he glanced at the unit leased by Albano. He saw Marzalado, Jr., take a lead pipe and hand it to a woman waiting at the terrace of Marzalado, Jr.'s house. Raniedo further said that on November 2, 1993, sometime between 4:30 p.m. and 5:00 p.m. he was relaxing in front of his house, when he heard noises coming from Albano's apartment. There he saw Marzalado, Jr., forcibly open the door of the unit, bring out the belongings of Albano, and take these to his own house. For his defense, Marzalado, Jr., testified that after the MeTC ruled against Albano in the MeTC ejectment case filed by his mother and because of the disconnection of the electricity, Albano already vacated the leased unit and moved to her father's place. According to petitioner, on November 3, 1993, he was on his way home when he saw water in a continuous stream flowing out of Albano's unit. He then searched for Albano but to no avail. He reported the matter to the barangay officers and asked for two barangay tanods to accompany him to the vacated unit. They went inside the unit where they found an open faucet, with water flooding the floor. He accused Albano of deliberately leaving the faucet open. He claimed Albano filed the criminal case of trespass to dwelling to harass him and to retaliate against him and his family. On October 28, 1997, the MeTC handed down the following judgment: WHEREFORE, the Court finds accused Salvador Mar[z]alado, Jr. "GUILTY" beyond reasonable doubt of Qualified Trespass To Dwelling under Article 280 of the Revised Penal Code and he is hereby

sentenced the penalty of TWO (2) MONTHS and ONE (1) DAY of Arresto Mayor and to pay a fine of P 500.00 and to pay the costs. SO ORDERED.7 The trial court observed that the defense would have been "a good defense" had the alleged entry been made on November 2, 1993, the date stated in the Information, instead of November 3, 1993, the date the accused said he entered the premises because Albano deliberately left the faucet open. Marzalado, Jr., appealed to the RTC, which ruled the matter in this wise: WHEREFORE, finding no reversible error in the appealed decision dated October 28, 1997, the same is hereby affirmed in toto. SO ORDERED.8 Undaunted, Marzalado, Jr., elevated the matter to the Court of Appeals in CA-G.R. CR No. 22645. The Court of Appeals found no error in the challenged RTC decision and held: WHEREFORE, premises considered, the lower court's decision is hereby AFFIRMED in toto and the instant petition is DISMISSED. SO ORDERED.9 Hence, petitioner comes to this Court assigning as errors of the court a quo the following: I THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISIONS OF THE METROPOLITAN TRIAL COURT AND THE REGIONAL TRIAL COURT, BOTH OF QUEZON CITY BECAUSE THE INCIDENT HAPPENED ON NOVEMBER 3, 1993, AND NOT NOVEMBER 2, 1993, AND THE PETITIONER'S ENTRY IN THE PREMISES IS FULLY JUSTIFIED BECAUSE HE WAS ASSISTED BY THEIR BARANGAY SECRETARY AND TWO BARANGAY TANOD[S] AND THE ENTRY IS FOR A VALID PURPOSE. HENCE, THERE IS NO TRESPASS TO DWELLING. II THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE INFORMATION THAT THE ALLEGED TRESPASS TO DWELLING HAPPENED ON NOVEMBER 2, 1993. THUS, WITH DUE RESPECT TO THE HONORABLE COURT OF APPEALS, THERE WAS A MISAPPREHENSION OF FACTS, AND IT SHOULD NOT HAVE ADOPTED THE FINDINGS OF FACTS OF THE METROPOLITAN TRIAL COURT AND REGIONAL TRIAL COURT. 10 The foregoing may be reduced to one issue: Did the Court of Appeals err in sustaining the conviction of Marzalado, Jr., for qualified trespass to dwelling? The petitioner argues that the Court of Appeals committed a reversible error in sustaining the lower court, since in the proceedings below, there was a grave misapprehension of facts by both the MeTC and RTC in finding that he committed trespass to dwelling despite the glaring proof that his entry was justifiable under paragraph 4, Article 11 of the Revised Penal Code11 - to prevent an imminent danger to property. He stresses that while he

did enter the unit, he did so with the aid of barangay officers and for the sole purpose of turning off the faucet that was causing the flooding of the unit. He adds that the Information filed against him should be considered fatally defective for having stated that his entry was on November 2, 1993, when in fact it was on November 3, 1993. The Office of the Solicitor General (OSG) counters that petitioner's entry cannot be justified since the flooding of the floor was not a danger to life nor property. Rather, the OSG claims that the flooding of the unit could have been averted had the petitioner resorted to merely turning off the inlet valve of the water source. The OSG also stresses petitioner's failure to refute the charge that he entered the complainant's unit on November 2, 1993. Moreover, the OSG asserts that the exact time of the commission of the crime in the Information need not be so accurate to preclude other dates near the actual date. It is sufficient that the Information states a time as near to the actual date, more so, where the time is not an essential element of the offense, as in this case. Anent the Information, the contention of petitioner that the Information is defective is untenable. Admittedly, there is a discrepancy on the precise date of the alleged trespass - the Information charges petitioner Marzalado, Jr., with trespass to dwelling allegedly committed on November 2, 1993, while petitioner's defense relate to an entry made the following day. The discrepancy however, does not make the information defective. Facts and circumstances necessary for inclusion in the information are determined by reference to the definition and elements of the specific crime.12 In trespass to dwelling, the elements are: (1) the offender is a private person; (2) that he enters the dwelling of another; and (3) such entrance is against the latter's will. The exact date when the alleged trespass occurred is not an essential element of the offense of trespass. It is sufficient that the Complaint or Information states that the crime has been committed at any time as near as possible to the date of its actual commission. 13 Rule 110, Section 11 of the Rules of Court provides that it is not necessary to state in the complaint or information the precise time the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. A variance between the time set out in the indictment and that established by the evidence during trial does not constitute an error so serious as to warrant reversal of a conviction solely on that score. 14 Thus, the error invoked by the petitioner in the date of the alleged trespass in the Information is of no grave import, for it is far from being the decisive issue in this case. However, still incumbent upon the prosecution is to establish the criminal intent and the guilt of the accused beyond reasonable doubt. Criminal cases rise and fall on the strength of the evidence of the prosecution and not the weakness of the evidence of the defense or the lack of it. 15 In the prosecution for trespass, the material fact or circumstance to be considered is the occurrence of the trespass. The gravamen of the crime is violation of possession16 or the fact of having caused injury to the right of the possession. 17 To prove trespass, the prosecution presented as witness Narciso Raniedo who testified that he saw petitioner enter the unit at around 4:30 p.m. to 5:00 p.m. on November 2 and take out Albano's belongings. No other eyewitness corroborated Raniedo's testimony. However, by her own account, Albano declared that she discovered the trespass in the evening of November 3,18 the same day the barangay certified Marzalado, Jr.'s entry. This obviously does not discount the fact that although the exact date of entry varied as between petitioner and respondent, they both were referring to the same entry. What remains now is the issue of whether the entry of petitioner Marzalado, Jr., was legally justified. We rule that it is, based on the circumstances of this case. As certified by Barangay Lupon Secretary Romulo E. Ragaya, the unit rented by Albano was "forcibly opened by the owner because of the strong water pressure coming out of the faucet" 19 As Albano herself admitted, she and her children already left the unit when the electricity supply was cut off in the month of September. Hence, nobody was left to attend to the unit, except during some nights when Albano's maid slept in the unit.

Clearly, Marzalado, Jr., acted for the justified purpose of avoiding further flooding and damage to his mother's property caused by the open faucet. No criminal intent could be clearly imputed to petitioner for the remedial action he had taken. There was an exigency that had to be addressed to avoid damage to the leased unit. There is nothing culpable concerning Marzalado, Jr.'s judgment call to enter the unit and turn off the faucet instead of closing the inlet valve as suggested by the OSG. Thus, we find the evidence on record insufficient to hold petitioner guilty of the offense charged. Palpable doubt exists in our mind as to the guilt of petitioner. In our view, the Court of Appeals erred in affirming the Decision of the Regional Trial Court and of the Metropolitan Trial Court when it found petitioner guilty of Qualified Trespass to Dwelling. In a situation of ambiguity, where the act of the accused permits of two possible signification, one culpable and another innocent, the ambiguity should be resolved in favor of the accused. The evidence in this case simply fails to convince us of his guilt beyond reasonable doubt. WHEREFORE, the petition is GRANTED. The Decision dated November 9, 2001 of the Court of Appeals in CA-G.R. CR No. 22645, and its Resolution dated April 23, 2002 denying the Motion for Reconsideration, are REVERSED and SET ASIDE. Petitioner SALVADOR MARZALADO, JR., is hereby ACQUITTED of the charge against him for lack of evidence to sustain a conviction beyond reasonable doubt. SO ORDERED. Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

EN BANC G.R. No. L-18660 December 22, 1922 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. FELIPE DELIMA, defendant-appellant. Tancinco & Rosales for appellant. Attorney-General Villa-Real for appellee.

ROMUALDEZ, J.: Lorenzo Napilon had escaped from the jail where he was serving sentence. Some days afterwards the policeman Felipe Delima, who was looking for him, found him in the house of Jorge Alegria, armed with a pointed piece of bamboo in the shape of a lance, and demanded his surrender. The fugitive answered with a stroke of his lance. The policeman dodged, it, and to impose his authority fired his revolver, but the bullet did not hit him. The criminal ran away, without parting with his weapon. These peace officer went after him and fired again his revolver, this time hitting and killing him. The policeman was tried and convicted for homicide and sentenced to reclusion temporal and the accessory penalties. He appeals from that judgment which must be reversed. That killing was done in the performance of a duty. The deceased was under the obligation to surrender, and had no right, after evading service of his sentence, to commit assault and disobedience with a weapon in the hand, which compelled the policeman to resort to such an extreme means, which, although it proved to be fatal, was justified by the circumstances.lawphil.net Article 8, No. 11, of the Penal Code being considered, Felipe Delima committed no crime, and he is hereby acquitted with the costs de oficio. So ordered. Araullo C.J., Street. Malcolm, Avancea, Villamor, Ostrand and Johns, JJ., concur. FIRST DIVISION G.R. No. 149152 February 2, 2007

RUFINO S. MAMANGUN, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION GARCIA, J.: In this petition for review under Rule 45 of the Rules of Court, petitioner Rufino Mamangun y Silverio seeks the reversal of the Decision1 dated January 19, 2001 (promulgated on February 13, 2001) of the Sandiganbayan in its Criminal Case No. 21131, convicting him of the crime of Homicide.

The factual backdrop: On September 12, 1994, herein petitioner, then a police officer, was charged before the Sandiganbayan with the crime of Murder, allegedly committed, per the indicting Information, 2 docketed as Criminal Case No. 21131, as follows: That on or about the 31st day of July 1992, in the Municipality of Meycauyan, (sic) Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Rufino S. Mamangun, a public officer, being then a Police Officer (PO2), duly appointed as such and acting in relation to his office, armed with a gun, with intent to kill, did then and there willfully, unlawfully and feloniously, with treachery, evident premeditation and abuse of superior strength, attack, assault and shoot one Gener M. Contreras with the said gun, hitting the latter on his body, thereby inflicting (sic) him serious physical injuries which directly cause (sic) his death. CONTRARY TO LAW. On arraignment, petitioner, as accused below, duly assisted by a counsel de oficio, entered a plea of "Not Guilty." In the ensuing trial, the prosecution presented in evidence the testimonies of Crisanto Ayson (Ayson), an alleged eyewitness, and Dr. Benito Caballero, then the designated Medico-Legal Officer of Bulacan who performed an autopsy on the cadaver of the victim. For its part, the defense adduced in evidence the testimonies of the accused himself, Rufino Mamangun, his copolicemen at the Philippine National Police (PNP), namely, PO2 Carlito Cruz, PO4 Hobert O. Diaz and Police Investigator SPO-1 Hernando B. Banez, all assigned at the Meycauayan Police Station; and those of Lorenzo S. Abacan and Rogelio Ingco, son and son-in-law, respectively, of Antonio Abacan, owner of the house on which rooftop the shooting of the victim took place. It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy. Calvario, Meycauayan, Bulacan a certain Liberty Contreras was heard shouting, "MagnanakawMagnanakaw." Several residents responded and thereupon chased the suspect who entered the yard of Antonio Abacan and proceeded to the rooftop of Abacans house. At about 9:00 oclock that same evening, the desk officer of the Meycauayan PNP Police Station, upon receiving a telephone call that a robbery-holdup was in progress in Brgy. Calvario, immediately contacted and dispatched to the scene the crew of Patrol Car No. 601 composed of Team Leader SPO1 Andres Legaspi, with PO2 Eugenio Aminas and herein petitioner PO2 Rufino S. Mamangun; and Patrol Car No. 602 composed of Team Leader PO3 Sandiego San Gabriel, with PO2 Carlito Cruz and PO2 Hobert Diaz. With the permission of Abacan, petitioner Mamangun, PO2 Diaz and PO2 Cruz went to the rooftop of the house whereat the suspect was allegedly taking refuge. The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a drawn handgun, searched the rooftop. There, they saw a man whom they thought was the robbery suspect. At that instance, petitioner Mamangun, who was walking ahead of the group, fired his handgun once, hitting the man. The man turned out to be Gener Contreras (Contreras) who was not the robbery suspect. Contreras died from the gunshot wound. The autopsy conducted by Dr. Benito B. Caballero yielded the following findings:

The cause of death was "Shock due to massive external and internal hemorrhage due to multiple gunshot wounds in the left arm side of the thorax, penetrating the left lung and vertebral column." There were several wounds caused by one (1) bullet. As shown on the sketch of human body attached to the Certificate of Death, and as testified on by Dr. Caballero, the bullet entered through the "lower third of the left arm, left side of the thorax and it penetrated the left lung and vertebral column and that is where the slug was found." From a laymans appreciation of the sketch, the bullet entered the outer, upper left arm of the victim, exited through the inner side of the said upper left arm, a little lower than the left armpit and the slug lodging on the victims back where it was recovered at the vertebral column.3 From the foregoing admitted or undisputed facts, the prosecution and the defense presented conflicting versions as to how the fatal shooting of Contreras by petitioner Mamangun actually happened. According to Ayson, the lone eyewitness for the prosecution, he accompanied the three policemen (Mamangun, Diaz and Cruz) to the rooftop of Abacans house. He was following petitioner Mamangun who was ahead of the group. They passed through the second-floor door of the house to the rooftop. The roof was lighted by an incandescent bulb from an adjacent house. He was beside Mamangun when they saw, some four to five armslength away, a man whom he (witness) recognized as Gener Contreras. Mamangun pointed his .45 cal. pistol at the man, who instantly exclaimed, "Hindi ako, hindi ako!," to which Mamangun replied, "Anong hindi ako?" Before he (Ayson) could say anything, Mamangun fired his gun, hitting the man who turned out to be Contreras. He (witness) approached the victim who was then lying on his left side unconscious. He brought down the victim and they rushed him to the hospital where he died at about 10:00 oclock that same evening. The defense has its own account of what purportedly actually transpired.1awphi1.net PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of Ayson at the rooftop during the shooting incident. Corroborating one another, the three testified that they were the only ones at the scene of the shooting, and that it was dark. They claimed that each of them, with Mamangun on the lead, went on separate directions around a water tank. As they met each other at the other side of the tank, PO2 Cruz pointed to a person crouching at the edge of the roof of the garage. Thinking that the person was the suspect they were looking for, Mamangun chased said person. They announced that they were police officers but the person continued to run in a crouching position until Mamangun caught up with him and shouted, "Pulis. Tigil," whereupon the person suddenly stopped, turned around, faced Mamangun, and raised a stainless steel pipe towards the latters head but Mamangun was able to evade the attack. This prompted Mamangun to shoot the person on the left arm. All three claimed that it was only at this point that PO2 Cruz and Diaz approached Contreras who told them, "Hindi ako. Hindi ako." Mamangun went near Contreras and asked, "Why did you go to the rooftop? You know there are policemen here." Contreras was thereafter brought to the hospital where he died. After the shooting incident, Mamangun reported the same to the desk officer, POI Filomeno de Luna, who advised him to remain in the police station. De Luna directed Police Investigator Hernando Banez to investigate the incident. That same evening, Investigator Banez went to the place where the shooting happened. Banez allegedly found a steel pipe about three (3) feet long on the depressed portion of the roof. On January 19, 2001, after due proceedings, the Sandiganbayan came out with its decision4 finding the petitioner guilty beyond reasonable doubt of only the crime of Homicide. In so finding, the Sandiganbayan did not appreciate the presence of the aggravating circumstances of treachery, evident premeditation and abuse of superior strength to qualify the killing to Murder. But even as the said court rejected the petitioners claim that the shooting was justified by self-defense, it nonetheless ruled that the crime of Homicide was attended by an incomplete justifying circumstance of the petitioner having acted in the performance of his duty as a policeman, and also appreciated in his favor the generic mitigating circumstance of voluntary surrender. Dispositively, the decision reads:

WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found GUILTY beyond reasonable doubt of the crime of Homicide, defined and penalized under Article 249, Revised Penal Code, and taking into account the attendance of one (1) privileged mitigation (sic) circumstance, one generic circumstance and no aggravating circumstance, he is hereby sentenced under the Indeterminate Sentence Law, to suffer the penalty of imprisonment of from Three (3) Years and Three (3) Months of prision correctional as minimum, to Seven (7) years of prision mayor, as maximum, to indemnify the heirs (parents) of Gener Contreras in the total amount of P352,025.00, and to past the costs. SO ORDERED. Unable to accept the judgment of conviction, petitioner is now with this Court via the present recourse alleging that the Sandiganbayan committed reversible error in failing to apply paragraph 5, Article 11, of the Revised Penal Code, which would have absolved him from criminal liability on the basis of his submission that the shooting in question was done in the performance of a duty or in the lawful exercise of a right or office. First off, petitioner insists that the shooting, which ultimately caused the demise of Contreras, was justified because he was repelling Contreras unlawful attack on his person, as Contreras was then about to strike him on the head with a steel pipe. We are not persuaded. Well-settled is the rule that factual findings of the Sandiganbayan are conclusive upon the Court except where: (1) the conclusion is a finding grounded entirely on speculations, surmises and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on misapprehension of facts and the findings of fact are premised on the absence of evidence and are contradicted by the evidence on record.5 None of these exceptions obtains in this case. Having admitted6 the fatal shooting of Contreras on the night of July 31, 1992, petitioner is charged with the burden of adducing convincing evidence to show that the killing was done in the fulfillment of his duty as a policeman. The justifying circumstance of fulfillment of duty under paragraph 5, Article II, of the Revised Penal Code may be invoked only after the defense successfully proves that: (1) the accused acted in the performance of a duty; and (2) the injury inflicted or offense committed is the necessary consequence of the due performance or lawful exercise of such duty.7 Concededly, the first requisite is present in this case. Petitioner, a police officer, was responding to a robberyholdup incident. His presence at the situs of the crime was in accordance with the performance of his duty. However, proof that the shooting and ultimate death of Contreras was a necessary consequence of the due performance of his duty as a policeman is essential to exempt him from criminal liability. As we see it, petitioners posturing that he shot Contreras because the latter tried to strike him with a steel pipe was a mere afterthought to exempt him from criminal liability. We see no plausible basis to depart from the Sandiganbayans findings that there was no reason for the petitioner to shoot Contreras. The latter was unarmed and had already uttered, "Hindi po ako, Hindi po ako" before the petitioner fatally shot him on the left arm. Prosecution witness Ayson, who was then behind the petitioner when the latter shot Contreras, testified that to the victims utterances, the petitioner even responded, "Anong hindi ako," and immediately shot Contreras. 8 As correctly observed by the Sandiganbayan: Besides being self-serving (with respect to the accused) and biased (with respect to his co-policemenwitnesses), We find (1) the claim of the accused and his co-policemen-witnesses that the victim (Contreras)

attacked the said accused and (2) their seemingly "positive" identification of the stainless steel pipe (more of a rod) as his weapon, to be of doubtful credibility, for the following reasons: (1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 Hobert Diaz, the three policemen appropriately identified themselves as police officers as they started chasing the man they saw "crouching," and, as claimed by accused PO2 Rufino Mamangun, that, as he was about to catch up with said man, he shouted, "Pulis! Tigil!" With all these introductions and forewarnings, it is utterly incredible and contrary to human experience that, that man, later identified to be Gener Contreras and admittedly not the person they were looking for, purportedly armed only with a stainless steel "lead" pipe (more of a rod) would suddenly stop, turn around and attack one of the three policemen who were chasing him, one after the other, with drawn guns. (2) When the victim (Gener Contreras) fell down after being shot by accused PO2 Mamangun, and as the latter went near the fallen victim, said accused asked, "Why did you go to the rooftop. You know there are policemen here." He admits that he did not ask the victim, "Why did you try to hit me, if you are not the one?" This admission clearly belies the claim of the police-witnesses that Gener Contreras attacked the accused policeman with an iron pipe when he was shot, for the accused should have asked the latter question. (3) The location of the entry of the bullet fired by accused Mamangun which is at the outer left arm at about the bicep of the victim and its trajectory as it penetrated his body hitting his vital organs along the way belies the claim of the accused that the victim was facing him and had just missed his head with an iron pipe, as instead the victim must have instinctively shielded his body with his left arm. Moreover, petitioners pretense that Contreras struck him with a steel pipe is intriguing. As it is, petitioner did not report the same to Police Investigator Banez when he reported back to the police station after the shooting incident. It was only when a lead pipe was recovered from the scene and brought to the police station that petitioner conveniently remembered Contreras trying to hit him with a pipe. Such a vital information could not have escaped the petitioners mind. We are thus inclined to believe that the alleged actuation of Contreras, which could have justified petitioners shooting him, was nothing but a concocted story to evade criminal liability. Indeed, knowing that he shot Contreras, the least that the petitioner should have done was to bring with him to the police station the very pipe with which Contreras tried to attack him. As borne by the evidence, however, it was only after a police investigator referred to the scene that the lead pipe surfaced. Petitioner would likewise argue that the testimony of prosecution witness Ayson was incredible and riddled with inconsistencies. The alleged contradictions cited by the petitioner, i.e. where the victim was shot, where he died, and as to whether Ayson left his house after the shooting incident, are but minor details which do not affect Aysons credibility. We have held time and again that few discrepancies and inconsistencies in the testimony of a witness referring to minor details and not in actuality touching upon the central fact of the crime, do not impair his credibility. Quite the contrary, such minor inconsistencies even tend to strengthen credibility because they discount the possibility that the testimony was rehearsed. 9 For sure, the record reveals that Aysons answers to the questions propounded by the defense counsel are clear and categorical. As to where the victim died, Ayson clarified that the victim was already at the rooftop even before the arrival of the police officers. As to why he was not able to warn Mamangun that the victim was his relative, Ayson explained that he was not able to utter any word because when Contreras said "Hindi ako. Hindi ako," petitioner suddenly fired at the latter. 10 As to the claim that Ayson was also on the roof, record shows that the robbery-holdup happened at around 8:00 in the evening. Before the policemen arrived, Ayson and Contreras were already pursuing the robber.11 Ayson also testified that when the victim was shot by the petitioner, the

former fell on his left side unconscious; that he did not leave his house after the incident because he was afraid that the policemen would detain him.12 Self-defense, whether complete or incomplete, cannot be appreciated as a valid justifying circumstance in this case. For, from the above admitted, uncontroverted or established facts, the most important element of unlawful aggression on the part of the victim to justify a claim of self defense was absent. Lacking this essential and primary element of unlawful aggression, petitioners plea of self-defense, complete or incomplete, must have to fail. To be sure, acts in the fulfillment of a duty, without more, do not completely justify the petitioners firing the fatal gunshot at the victim. True, petitioner, as one of the policemen responding to a reported robbery then in progress, was performing his duty as a police officer as well as when he was trying to effect the arrest of the suspected robber and in the process, fatally shoot said suspect, albeit the wrong man. However, in the absence of the equally necessary justifying circumstance that the injury or offense committed be the necessary consequence of the due performance of such duty, there can only be incomplete justification, a privileged mitigating circumstance under Articles 13 and 69 of the Revised Penal Code. There can be no quibbling that there was no rational necessity for the killing of Contreras. Petitioner could have first fired a warning shot before pulling the trigger against Contreras who was one of the residents chasing the suspected robber. All told, we find no reversible error committed by the Sandiganbayan in convicting the petitioner of the crime of Homicide attended by the privileged mitigating circumstance of incomplete justifying circumstance of having acted in the performance of his duty as a policeman and the generic mitigating circumstance of voluntary surrender. IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision of the Sandiganbayan is AFFIRMED in all respects. No pronouncement as to costs. SO ORDERED. CANCIO C. GARCIA Associate Justice

EN BANC G.R. No. L-15923 June 30, 1960

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN BENITEZ, defendant-appellant. Assistant Solicitor General Jose P. Alejandro and Attorney Rodrigo C. Capulong for appellee. Jose Galvan for appellant. GUTIERREZ DAVID, J.: This is an appeal from a decision of the Court of First Instance of Manila finding Benjamin Benitez guilty of the crime estafa and sentencing him to an indeterminate penalty of from 2 months and 1 day of arresto mayor to 1 year and 1 day of prision correccional, with the accessory of the law, to indemnify the offended party in the amount of P540.00 with subsidiary imprisonment in case of insolvency not to exceed 1/3 of the principal penalty, and to pay the costs. The facts are not disputed. The accused Benjamin Benitez was employed by Jose Cua as collector of rents of the houses owned by the latter. In the months of July and August, 1956, the accused made several collections from his employer's tenants amounting to P540.00. Having failed to turn over said amount, or to account for it, to his employer, upon demand, the accused offered to work in the former's establishment, the sum P100.00, to be deducted from his salary every month until the whole amount of P540.00 is fully paid. The offer and the conditions for his employment were accepted by Jose Cua and reduced to writing. The accused, however, after working in Cua's establishment for only a few days, did not report or show up for work, whereupon Cua wrote to him a letter demanding settlement of his account. The accused having failed to pay the amount of his obligation, a complaint for estafa was filed against him. He was convicted and sentenced as stated at the beginning of this opinion. From that sentence, he appealed to the Court Appeals, contending that the lower court erred in finding him guilty upon his mere failure to account for and turn over his collections, there being no proof of misappropriation or conversion, and in not considering that his agreement with his employer converted his criminal liability, if any, into a mere civil obligation. The questions raised being purely legal, the case was certified to this Court. After going over the record, we entertain no doubt that the accused has committed estafa. In the case of Tubb vs. People and the Court of Appeals (101 Phil., 114; 53 Off. Gaz. [18] 6096), this Court held that "the failure to account upon demand, for funds or property held in trust is circumstancial evidence of misappropriation." In another case involving a prosecution for the same crime as in the present, it was held that "... it is the duty of the agent to return the jewelry upon demand by the owner and the failure todo so is evidence of the conversion of the property by the agent. (People vs. Zamora, 2 Phil., 382.)" (People vs. Limbo, CA, 51 Off. Gaz., 228.) In the case at bar, the accused admits having collected the amount of P540.00 as rentals from the different tenants of his employer. It is likewise, admitted that he failed to account for and turn over said amount to his employer, upon demand therefor, without giving any reason or explanation whatsoever. These circumstances, together with the fact that the accused even obligated himself to make restitution, clearly show that the amount of P540.00, which he was duty bound to deliver to his employer, was misappropriated by him. As to the contention that the liability of the accused is civil only because of the written agreement between him and his employer, it is well-settled that criminal liability for estafa is not affected by compromise or novation of contract, for it is a public offense which must be prosecuted and punished by the Government on its own motion even though complete reparation should have been made of the damages suffered by the offended party, (U. S.

vs. Mendezona, 2 Phil., 353; U. S. vs. Ontengco, 4 Phil., 144; U. S. vs. Rodriguez, 9 Phil., 153; People vs. Leachon 56 Phil., 739; Javier vs. People, 70 Phil., 550.) As was said in the case of People vs. Gervacio (102 Phil., 687; 54 Off. Gaz. [9] 2898), "a criminal offense is committed against the People and the offended party may not waived or extinguish the criminal liability that the law imposes for the commission of the offense." The fact, therefore, that the accused herein had, with the consent of the offended party, assumed the obligation of paying the rentals, which he collected, out of his own salary after he had committed the misappropriation, does not obliterate the criminal liability already incurred. There being no error in the judgment appealed from, the same is hereby affirmed, with costs against the accused. Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., and Barrera, JJ., concur.

EN BANC G.R. No. L-4445 February 28, 1955

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO, and JACINTO ADRIATICO, defendants-appellants. Agripino A. Brillantes, Valera, Eufemio and Bernardez for appellants. Prospero C. Sanidad and Claro M. Recto for defendant. Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R. de los Angeles and Martiniano P. Vivo for appellee. REYES, J.B.L., J.: This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico from the judgment of the Court of First Instance of Abra (Criminal Case No. 70) convicting them of murder for the execution of Arsenio Borjal in the evening of April 18, 1945, in the town of La Paz , Province of Abra. Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war, and continued to serve as Mayor during the Japanese occupation, until March 10, 1943, when he moved to Bangued because of an attempt upon his life by unknown persons. On December 18, 1944, appellant Manuel Beronilla was appointed Military Mayor of La Paz by Lt. Col. R. H. Arnold, regimental commander of the 15th Infantry, Philippine Army, operating as a guerrilla unit in the province of Abra. Simultaneously with his appointment as Military Mayor, Beronilla received copy of a memorandum issued by Lt. Col. Arnold to all Military Mayors in Northern Luzon, authorizing them "to appoint a jury of 12 bolomen to try persons accused of treason, espionage, or the aiding and abetting (of ) the enemy" (Exhibit 9). He also received from the Headquarters of the 15th Infantry a list of all puppet government officials of the province of Abra (which included Arsenio Borjal, puppet mayor of La Paz), with a memorandum instructing all Military Mayors to investigate said persons and gather against them complaints from people of the municipality for collaboration with the enemy (Exhibit 12-a). Sometime in March, 1945, while the operations for the liberation of the province of Abra were in progress, Arsenio Borjal returned to La Paz with his family in order to escape the bombing of Bangued. Beronilla, pursuant to his instructions, placed Borjal under custody and asked the residents of La Paz to file complaints against him. In no time, charges of espionage, aiding the enemy, and abuse of authority were filed against Borjal; a 12-man jury was appointed by Beronilla, composed of Jesus Labuguen as chairman, and Benjamin Adriatico, Andres Afos, Juanito Casal, Santiago Casal, Benjamin Abella, Servillano Afos, Mariano Ajel, Felimon Labuguen, Felix Murphy, Pedro Turqueza, and Delfin Labuguen as members; while Felix Alverne and Juan Balmaceda were named prosecutors, Policarpio Paculdo as clerk of the jury, and Lino Inovermo as counsel for the accused. Later, Atty. Jovito Barreras voluntarily appeared and served as counsel for Borjal. Sgt. Esteban Cabanos observed the proceedings for several days upon instructions of Headquarters, 15th Infantry. The trial lasted 19 days up to April 10, 1945; the jury found Borjal guilty on all accounts and imposed upon him instruction from his superiors. Mayor Beronilla forwarded the records of the case to the Headquarters of the 15th Infantry for review. Said records were returned by Lt. Col. Arnold to Beronilla on April 18, 1945 with the following instructions: HEADQUARTERS 3RD MILITARY DISTRICT 15TH INFANTRY, USAFIP In the Field

16 April 1945 Msg. No. 337 Subject: Arsenio Borjal, Charges Against To: Military Mayor of La Paz, Abra. 1. Returned herewith are the papers on the case of Arsenio Borjal. 2. This is a matter best handled by your government and whatever disposition you make of the case is hereby approved. (Sgd.) R. H. ARNOLD Lieut.-Colonel, 15th Inf., PA Commanding Received April 18, 1945, 10:35 a.m. (Sgd.) MANUEL BERONILLA Military Mayor, La Paz, Abra (Exhibit 8, 8-a) and on the night of the same day, April 18, 1945, Beronilla ordered the execution of Borjal. Jacinto Adriatico acted as executioner and Antonio Palope as grave digger. Father Luding of the Roman Catholic Church was asked to administer the last confession to the prisoner, while Father Filipino Velasco of the Aglipayan Church performed the last rites over Borjal's remains. Immediately after the execution, Beronilla reported the matter to Col. Arnold who in reply to Beronilla's report, sent him the following message: HEADQUARTERS 3RD MILITARY DISTRICT 15TH INFANTRY, USAFIP In the Field 22 April 1945 Msg. No. 398 Subject: Report and information Re Borjal case To: Military Mayor Beronilla 1. Received your letter dated 18 April 1945, subject, above. 2. My request that you withhold action in this case was only dictated because of a query from Higher Headquarters regarding same. Actually, I believe there was no doubt as to the treasonable acts of the accused Arsenio Borjal and I know that your trial was absolutely impartial and fair. Consequently, I Can only compliment you for your impartial independent way of handling the whole case. (Sgd.) R. H. ARNOLD Lieut.-Colonel, 15th Inf., PA Commanding Received April 26, 1947 7:00 a.m.

(Sgd.) MANUEL BERONILLA Military Mayor, La Paz, Abra (Exhibit 21, 21-a) Two years thereafter, Manuel Beronilla as military mayor, Policarpio Paculdo as Clerk of the jury, Felix Alverne and Juan Balmaceda as prosecutors, Jesus Labuguen, Delfin Labuguen, Filemon Labuguen, Servillano Afos, Andres Afos, Benjamin Adriatico, Juanito Casel, Santiago Casel, Mariano Ajel, Felix Murphy, Benjamin Abella, and Pedro Turqueza as members of the jury, Jacinto Adriatico as executioner, Severo Afos as grave digger, and Father Filipino Velasco as an alleged conspirator, were indicted in the Court of First Instance of Abra for murder, for allegedly conspiring and confederating in the execution of Arsenio Borjal. Soon thereafter, the late President Manuel A. Roxas issued Executive Proclamation No. 8, granting amnesty to all persons who committed acts penalized under the Revised Penal Code in furtherance of the resistance to the enemy against persons aiding in the war efforts of the enemy. Defendant Jesus Labuguen, then a master sergeant in the Philippine Army, applied for and was granted amnesty by the Amnesty Commission, Armed Forces of the Philippines (Records, pp. 618-20). The rest of the defendant filed their application for amnesty with the Second Guerrilla Amnesty Commission, who denied their application on the ground that the crime had been inspired by purely personal motives, and remanded the case to the Court of First Instance of Abra for trial on the merits. Upon motion of defense counsel, the case against defendant Jesus Labuguen, who had been granted amnesty by the Amnesty Commission of the Armed Forces of the Philippines, was ordered provisionally dismissed: defendant Juan Balmaceda was discharged from the information so that he might be utilized as state witness, although actually he was not called to testify; while the case against defendants Antonio Palope (the grave digger) and Demetrio Afos( a boloman) was dismissed for lack of sufficient evidence. Trial proceeded against the rest of the defendants; and on July 10, 1950, the Court below rendered judgment, acquitting the members of the jury and the grave digger Antonio Palope on the ground that they did not participated in the killing of Arsenio Borjal; acquitting defendants Jesus Labuguen, Felix Alverne, Severo Afos, and Lauro Parado upon insufficiency of evidence to establish their participation in the crime; but convicting defendants Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico as conspirator and coprincipals of the crime of murder, and sentencing them to suffer imprisonment of from 17 years, 4 months and 1 day of reclusion temporal to reclusion perpetua, to indemnify the heirs of Arsenio Borjal jointly and severally in the amount of P4,000 with subsidiary imprisonment in case of insolvency, and each to pay one fourth of the costs. In convicting said defendants the Court a quo found that while the crime committed by them fell within the provisions of the Amnesty Proclamation, they were not entitled to the benefits thereof because the crime was committed after the expiration of the time limit fixed by the amnesty proclamation;: i.e., that the deceased Arsenio Borjal was executed after the liberation of La Paz, Abra. In view of the sentence meted by the Court below, the accused Beronilla, Paculdo, Velasco and Adriatico appealed to this Court. The records are ample to sustain the claim of the defense that the arrest, prosecution and trial of the late Arsenio Borjal were done pursuant to express orders of the 15th Infantry Headquarters. (Exhibit 9 and 12-a), instructing all military mayors under its jurisdiction to gather evidence against puppet officials and to appoint juries of at least 12 bolomen to try the accused and find them guilty by two thirds vote. It is to be noted that Arsenio Borjal was specifically named in the list of civilian officials to be prosecuted (Exhibit 12-b). In truth, the prosecution does not seriously dispute that the trial and sentencing of Borjal was done in accordance with instructions of superior military authorities, altho it point to irregularities that were due more to ignorance of legal processes than personal animosity against Borjal. The state, however, predicates its case principally on the existence of the radiogram Exhibit H from Col. Volckmann, overall area commander, to Lt.

Col. Arnold, specifically calling attention to the illegality of Borjal's conviction and sentence, and which the prosecution claims was known to the accused Beronilla. Said message is as follows: "Message: VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES OF ABRA HAVE ORGANIZED JURY SYSTEM PD BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY PUNISHMENTS THEREOF PD SPECIFIC INSTANCE IS BROUGHT TO YOUR ATTENTION FRO PROPER AND IMMEDIATE ACTION ON ONE ARSENIO BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO BE HANGED PD REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG BEGINS CLN" (EXH. H) The crucial question thus becomes whether or not this message, originally sent to Arnold's quarters in San Esteban, Ilocos Sur, was relayed by the latter to appellant Beronilla in La Paz, Abra, on the morning of April 18, 1945, together with the package of records of Borjal's trial that was admittedly returned to and received by Beronilla on that date, after review thereof by Arnold (Exhibit 8-8-a). Obviously, if the Volckmann message was known to Beronilla, his ordering the execution of Borjal on the night of April 18, 1945 can not be justified. We have carefully examined the evidence on this important issue, and find no satisfactory proof that Beronilla did actually receive the radiogram Exhibit H or any copy thereof. The accused roundly denied it. The messenger, or "runner", Pedro Molina could not state what papers were enclosed in the package he delivered to Beronilla on that morning in question, nor could Francisco Bayquen (or Bayken), who claimed to have been present at the delivery of the message, state the contents thereof. The only witness who asserted that Beronilla received and read the Volckmann message, Exhibit H, was Rafael Balmaceda, a relative of Borjal, who claimed to have been, as Beronilla's bodyguard, present at the receipt of the message and to have read it over Beronilla's shoulder. This testimony, however, can not be accorded credence, for the reason that in the affidavit executed by this witness before Fiscal Antonio of Abra (Exhibit 4), Balmaceda failed to make any mention of the reading, or even the receipt, of the message. In the affidavit, he stated: Q. In your capacity as policeman, do you know of any usual occurrence that transpired in La Paz, Abra? A. Yes, sir. Q. Will you state what is the event? A. On April 17, 1945, I was assigned as guard at the Presidencia where Mayor Arsenio Borjal is confined. On the 18th of April, 1945, six bolomen came to me while I was on duty as guard, that Mayor Borjal should be tied, on orders of Mayor Beronilla, Mayor Borjal wanted to know the reason why he would be tied, as he had not yet learned of the decision of the jury against him. Mayor Borjal wrote a note to Mayor Beronilla, asking the reason for his being ordered to be tied. I personally delivered the note of Borjal to Mayor Beronilla. Mayor Beronilla did not answer the note, but instead told me that I should tie Mayor Borjal, as tomorrow he would die, as he cannot escape. I returned to the Presidencia, and Mayor Borjal was tied, as that was the ordered of Mayor Beronilla. The plain import of the affidavit is that the witness Rafael Balmaceda was not with Beronilla when the message arrived, otherwise Beronilla would have given him his orders direct, as he (Balmaceda) testified later at the trial. Moreover, it is difficult to believe that having learned of the contents of the Volckmann message, Balmaceda should not have relayed it to Borjal , or to some member of the latter's family, considering that they were relatives. In addition to Balmaceda was contradicted by Bayken, another prosecution witness, as to the hatching of the alleged conspiracy to kill Borjal. Balmaceda claimed that the accused-appellants decided to kill Borjal in

the early evening of April 18, while Bayken testified that the agreement was made about ten o'clock in the morning, shortly after the accused had denied Borjal's petition to be allowed to hear mass. Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann message. Had he executed Borjal in violation of superior orders, he would not have dared to report it to Arnold's headquarters on the very same day, April 18th, 1945, as he did (Exhibit 20), half an hour after the execution. And what is even more important, if Borjal was executed contrary to instructions, how could Lt. Colonel Arnold on April 21, 1945, write in reply (Exhibit 21, 21-a) "I can only compliment you for your impartial but independent way of handling the whole case" instead of berating Beronilla and ordering his court martial for disobedience? Our conclusion is that Lt. Col. Arnold, for some reason that can not now be ascertained, failed to transmit the Volckmann message to Beronilla. And this being so, the charge of criminal conspiracy to do away with Borjal must be rejected, because the accused had no need to conspire against a man who was, to their knowledge, duly sentenced to death. The state claims that the appellants held grudges against the late Borjal. Even so, it has been already decided that the concurrence of personal hatred and collaboration with the enemy as motives for a liquidation does not operate to exclude the case from the benefits of the Amnesty claimed by appellants, since then "it may not be held that the manslaughter stemmed from purely personal motives" (People vs. Barrioquinto,* G. R. Nos. L-

2011 and 2267, June 30, 1951). Actually, the conduct of the appellants does not dispose that these appellants were impelled by malice (dolo). The arrest and trial of Borjal were made upon express orders of the higher command; the appellants allowed Borjal to be defended by counsel, one of them (attorney Jovito Barreras) chosen by Borjal's sister; the trial lasted nineteen (19) days; it was suspended when doubts arose about its legality, and it was not resumed until headquarters (then in Langangilang, Abra) authorized its resumption and sent an observer (Esteban Cabanos, of the S-5) to the proceedings, and whose suggestions on procedure were followed; and when the verdict of guilty was rendered and death sentence imposed, the records were sent to Arnold's headquarters for review, and Borjal was not punished until the records were returned eight days later with the statement of Arnold that "whatever disposition you make of the case is hereby approved" (Exhibit 8), which on its face was an assent to the verdict and the sentence. The lower Court, after finding that the late Arsenio Borjal had really committed treasonable acts, (causing soldiers and civilians to be tortured, and hidden American officers to be captured by the Japanese) expressly declared that "the Court is convinced that it was not for political or personal reason that the accused decided to kill Arsenio Borjal" (Decision, p. 9; Record, p. 727). It appearing that the charge is the heinous crime of murder, and that the accused-appellants acted upon orders, of a superior officers that they, as military subordinates, could not question, and obeyed in good faith, without being aware of their illegality, without any fault or negligence on their part, we can not say that criminal intent has been established (U. S. vs. Catolico, 18 Phil., 507; Peo. vs. Pacana, 47 Phil., 48; Sent. of the Tribunal Supremo of Spain, 3 July 1886; 7 January 1901; 24 March 1900; 21 Feb. 1921; 25 March 1929). Actus non facit reum nisi mens si rea. To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequence, as, in law, is equivalent to criminal intent. The maxim is, actus non facit reum, nisi mens rea-a crime is not committed if the minds of the person performing the act complained of be innocent. (U. S. vs. Catolico, 18 Phil., 507).

But even assuming that the accused-appellant did commit crime with they are charged, the Court below should not have denied their claim to the benefits of the Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz., 2072)on the ground that the slaying of Arsenio Borjal took place after actual liberation of the area from enemy control and occupation. The evidence on record regarding the date of liberation of La Paz, Abra, is contradictory. The Military Amnesty Commission that decided the case of one of the original accused Jesus Labuguen, held that La Paz, Abra, was liberated on July 1, 1945, according to its records; and this finding was accepted by Judge Letargo when he dismissed the case against said accused on March 15, 1949. On the other hand, Judge Bocar and Hilario, who subsequently took cognizance of the case, relied on Department Order No. 25, of the Department of the Interior, dated August 12, 1948, setting the liberation of the Province of Abra on April 4, 1945, fifteen days before Borjal was slain. The two dates are not strictly contradictory; but given the benefit of the Presidential directive to the Amnesty Commissions (Adm. Order No. 11, of October 2, 1946) that "any reasonable doubt as to whether a given case falls within the (amnesty) proclamation shall be resolved in favor of the accused" (42 Off. Gaz., 2360), as was done in People vs. Gajo, Phil., 107 46 Off. Gaz., (No. 12) p. 6093. For the reasons stated, the judgment appealed from is reversed and the appellants are acquitted, with costs de oficio. Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo and Concepcion, JJ., concur.

EN BANC G.R. Nos. 146464-67 November 15, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE VILLANUEVA, accused-appellant. DECISION PER CURIAM: The words detestable, condemnable, abhorrent, disgusting, and abominable are not enough to describe a rape committed by a father against his own progeny. Indeed, the proliferation of incestuous rape is a revolting phenomenon in a catholic country like the Philippines. 1 It is beyond comprehension that the Filipino values, close-family-ties culture, and religious beliefs inculcated in every Filipino could in some, like herein accusedappellant Jose Villanueva (hereafter JOSE), be easily outweighed or overshadowed by beastly sexual desires and, worse, against one's own flesh and blood. Four Informations docketed as Criminal Cases Nos. 8355, 2 8356,3 83574 and 83585 were filed before the Regional Trial Court of Legazpi City charging JOSE with rape allegedly committed against her own daughter Gina Villanueva (hereafter GINA) as follows: Criminal Case No. 8355 That on October 8, 1995 at around 5:00 o'clock in the evening, more or less, at Sitio Recudo, Barangay Calanaga, Municipality of Rapu-Rapu, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with his 10-yearold daughter GINA VILLANUEVA, against her will and consent, to her damage and prejudice. ACTS CONTRARY TO LAW. Criminal Case No. 8356 That sometime in the month of September 1995, at around 12:00 noon, more or less, at Sitio Palo, Barangay Calanaga, Municipality of Rapu-Rapu, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, by means of force, threat and intimidation did then and there willfully, unlawfully and feloniously poke a knife at her own daughter, GINA VILLANUEVA, 10 years of age, and then undress her and succeed in having carnal knowledge with her, against her will and consent, to her damage and prejudice. ACTS CONTRARY TO LAW. Criminal Case No. 8357 That sometime in August. 1995, in the evening, at Sitio Palo, Barangay Calanaga, Municipality of Rapu-Rapu, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, did then and there willfully, unlawfully and feloniously have carnal knowledge with her own 10-year-old daughter GINA VILLANUEVA while the latter was sleeping or otherwise unconscious, against her will and consent, to her damage and prejudice.

ACTS CONTRARY TO LAW. Criminal Case No. 8358 That in the evening of April 18, 1998, at Sitio Recudo, Barangay Calanaga, Municipality of Rapu-Rapu, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with his own 12-year old-daughter, GINA VILLANUEVA, against her will and consent, to her damage and prejudice. ACTS CONTRARY TO LAW. The cases were consolidated and jointly tried. At his arraignment on 26 March 1999, JOSE entered a plea of "not guilty" in each case.6 At the pre-trial, the parties admitted that GINA was a minor, who was born on 23 May 1985. They further admitted the identities of the parties.7 The witnesses presented by the prosecution were complainant GINA; Raymundo Sarga, Jr., a National Bureau of Investigation (NBI) investigator; Vilma Villanueva, the older sister of GINA and daughter of JOSE; and Dr. Lilli-Melrose Camara, the medico-legal officer who examined GINA. GINA testified that sometime in August 1995, at around 5:30 A.M., in their house in Palo, Calanaga, RapuRapu, Albay, she woke up and saw her father JOSE standing naked in front of her with his penis erect. He forcibly removed her dress and panty, and laid down with her. She tried to avoid him by pushing him. She complained and told him that this was enough because he had already done the same to her two elder sisters. Still, JOSE persisted and inserted his penis into her vagina against her will. He then made push and pull movements, causing pain to her vagina. Thereafter, he threatened her with a knife and told her that he would kill her if she reported the matter to anyone. 8 On cross-examination, however, GINA admitted that she was unconscious at the time JOSE was satisfying his sexual desire. She clarified that she was awakened when he was undressing her. She tried to resist him, but she lost consciousness when he placed a piece of cloth on her mouth, which smelled like gin that caused her to sleep again. It was when she regained consciousness that she saw JOSE standing naked in front of her with his penis erect. GINA knew that she was raped because she felt pain inside her vagina and there was blood flowing therefrom. She also noticed something whitish coming out from JOSE's penis. 9 GINA further declared that at the time the foregoing incident took place only she, JOSE and her younger sister Alma were in the house. Her mother and her two elder sisters were then in Tabaco, Albay, to buy something. When her mother Rosalina arrived, GINA reported to the latter the sexual assault committed by JOSE. Rosalina told GINA that she would be the one to take care of it. However, Rosalina just remained silent because she herself was also threatened by JOSE.10 The second time JOSE raped her, according to GINA, was sometime in September 1995, at 12:00 noon. At that time, she was alone with JOSE in their house in Palo, Calanaga, Rapu-Rapu, Albay. Her mother was washing their laundry in the well, together with her younger sister; and her two elder sisters were in school. While GINA was sitting at the porch, JOSE held her two hands and pulled her to the bedroom. She pushed him and tried to free herself from his hold, but he was far stronger than her. She shouted but not loud enough because JOSE, who was holding a knife, threatened to kill her if she would create any noise. He then forcibly removed her dress and panty, mounted her, and inserted his penis into her vagina. She felt something warm come out from his penis while it was inside her vagina.11

The third rape allegedly took place on 8 October 1995 at 5:00 P.M. in their house. On that occasion, her mother and younger sister were in their neighbor's house, while her two elder sisters were sent out by their father on an errand to borrow a hammer from a certain Manay Rolly, whose house was very far from theirs. JOSE brought her from the porch to the bedroom. She resisted and cried, telling him to have pity on her, but he did not heed her plea. After undressing her, he placed himself on top of her and inserted his penis into her vagina. She could not shout because he placed a hand on her mouth; she just kept on crying. She did not report to her mother the incident because of JOSE's threat to kill them.12 The fourth time GINA was allegedly raped by JOSE was on 18 April 1998 at 8:00 P.M., also in their house in Palo, Calanaga. At that time, her mother and her 10-year-old sister were sleeping. GINA was not able to shout because JOSE placed a piece of cloth on her mouth. As in the other rape incidents, she resisted by kicking and scratching him. He, however, succeeded in removing her dress and panty and in inserting his penis into her vagina. After he finished his bestial act, he sat beside her and told her to suck his penis. She refused and he left.13 Four days thereafter, at dawn, GINA left her parents' house without permission. She went to her uncle Efren Sarza, who in turn brought her to her grandfather Franciso Sarza or Lolo Kikoy. With the help of Lolo Kikoy and the Barangay Captain of Sagrada, she reported the rape incidents to the NBI in Legazpi City, 14 where she executed a sworn statement.15 Raymundo D. Sarga, Jr., testified that he was the one who took the sworn statement of GINA on 22 April 1998 at the headquarters of the NBI in Legazpi City. On the basis of GINA's sworn statement and the medical examination conducted by a doctor from the Philippine National Police Crime Laboratory at Camp Simeon Ola, Legazpi City, he filed a complaint for rape against JOSE before the Municipal Trial Court of Rapu-Rapu.16 Vilma Villanueva testified that she was told by GINA of the four incidents of rape committed by JOSE. One time, she saw his father naked from waist down, with GINA seated near him. She and her other sister Salvacion were also raped by him. She was 12 years old when JOSE started subjecting her to a series of sexual assaults. While she was aggrieved by her father's acts, she never thought of going to somebody to ask for help because of his threats. Since her father is already detained, she would file charges against him. 17 Dr. Lilli-Melrose Camara, a medico-legal officer of the PNP Technical Service Crime Laboratory, testified that she examined GINA sometime in April 1998. The examination results revealed that GINA was in a non-virgin state and that she had healed hymenal lacerations at 7:00 and 9:00 o'clock positions. These lacerations could have been caused by any blunt instrument or a penis. 18 The witnesses presented by the defense were GINA's eldest sister, Salvacion Calaes; her youngest sister, Alma Villanueva; her mother, Rosalina Villanueva; and her father, accused-appellant JOSE. Salvacion denied having told GINA and Vilma that she was raped by JOSE. She left their home because she had to work. GINA left their home on 21 April 1998 and testified against JOSE because the latter was very strict. She likewise asserted that Vilma could not have seen JOSE rape GINA in 1995 because she (Vilma) was then working in Tabaco, Albay, as a household helper.19 On cross-examination, Salvacion admitted that she loved her father very much. She volunteered to testify for him because she did not want her father to suffer the same fate as that of Leo Echegaray, who was put to death by lethal injection for raping his own daughter.20 Alma Villanueva testified that she was staying with her sister Salvacion in Panal, Tabaco, Albay, to take care of Salvacion's children. She denied having been abused by her father. She testified that she went with her mother and father to look for GINA, who had escaped after their parents refused to grant her permission to work. Alma admitted that she loved her father so much that she did not want him to go to jail. 21

Rosalina Villanueva declared that GINA was born on 11 October 1982. She was married to JOSE on 15 August 1978. GINA never revealed to her that JOSE raped her. The testimony of GINA that she was raped by JOSE in August and September 1995 in Sitio Palo, Calanaga, Rapu-Rapu, Albay, is not true because they never resided in Sitio Palo; their house was in Sitio Recudo. For unknown reasons, GINA left their home on 21 April 1998 without asking permission from her, and they tried to look for her. When she saw GINA a week after JOSE was detained, she asked her why she filed cases against her father. GINA informed her that it was Lolo Kikoy, with whom GINA was staying, who instigated her to file the case. She did not know the motive of Lolo Kikoy in inducing GINA to file the cases against JOSE. When she asked Francisco about it the latter answered that it was because JOSE was very strict.22 JOSE declared that GINA is his legitimate daughter with Rosalina Villanueva. He was married to Rosalina Villanueva in August 1978. He denied the four charges of rape. He declared that he could not do that to GINA; besides, they did not have a house in Sitio Palo. He could not have committed the rape on 18 April 1998 because GINA was not at home when he arrived from fishing. She attended a dance at Batan, Rapu-Rapu, Albay, which was two kilometers away from their house, and she arrived home only the following morning. Two days thereafter, she escaped presumably because he did not allow her to stay at her aunt's house in Sto. Domingo, Albay. It was his plan to bring her back home, but her aunt Gina Sarza refused to yield custody over GINA. JOSE asserted that GINA filed these cases against him because of his refusal to allow her to live with her aunt in Sto. Domingo and to attend a dance. 23 The trial court gave full faith and credence to the testimony of GINA. It found GINA's testimony "categorical, unequivocal, candid and straightforward." On the other hand, it found JOSE's defense of denial "contrived and implausible." Thus, in its 2 October 2000 joint decision, 24 the trial court convicted JOSE of four counts of rape and sentenced him in each count to suffer the penalty of death and to pay GINA the amounts of P75,000 as indemnity; P50,000 as moral damages; and P20,000 as exemplary damages. In view of the imposition of the death penalty, the case is before us for automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In the Appellant's Brief, JOSE contends that the trial court erred I. ... IN FINDING THE ACCUSED FATHER GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED RAPE ON FOUR (4) COUNTS WHEN THE FOUR (4) COMPLAINTS FOR RAPE DULY SIGNED, SUBSCRIBED AND SWORN TO BY THE OFFENDED PARTY FAILED TO ALLEGE QUALIFYING CIRCUMSTANCES. II. ... IN CONSIDERING THE COMPLAINTS FOR RAPE DESPITE THE LAPSE OF TIME THAT HAS OCCURRED FROM THE TIME IT HAPPENED TO THE REPORTING OF THE SAME TO THE POLICE AUTHORITIES. In support of his first assigned error, JOSE argues that the death penalty should not be imposed on him because the sworn complaints which were the basis of the four informations did not allege the qualifying circumstances of relationship and minority. Anent the second assigned error, JOSE posits that the delay of GINA in reporting the rape incidents puts her story in serious doubt. If the rapes actually happened, there was no reason for GINA to delay the reporting. She could even have prevented the other rapes if only she reported the rape allegedly committed in August 1995. In his Reply Brief, JOSE further argues that the rapes have not been duly proved beyond reasonable doubt. He wonders why GINA did not escape after the first rape, but instead she tolerated his behavior and relied on him for her basic needs of food, clothing, and shelter.

In the Appellee's Brief, the Office of the Solicitor General (OSG) counters that JOSE's argument on the first issue is off-tangent. The four informations upon which JOSE was arraigned and to which he entered his plea contain all the allegations of qualified rape. On the second issue, the OSG maintains that the delay of GINA in reporting the rape incidents neither created any doubt over her credibility, nor could it be taken against her, especially since the accused is her father. At the heart of almost all rape cases is the issue of credibility of the witnesses. Such issue is resolved primarily by the trial court because it is in a better position to decide the same, having heard the witnesses and observed their deportment and manner of testifying. Accordingly, its findings are entitled to the highest degree of respect and will not be disturbed on appeal in the absence of any showing that the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight or substance which would otherwise affect the result of the case.25 None of the exceptions exists in the case at bar. Through the testimony of GINA, which the trial court found to be clear and worth believing, the prosecution has adequately proved the commission of the rapes by her father JOSE. For the three rape incidents that occurred in 1995, when GINA was just 10 years of age, no proof of force and intimidation is necessary. Under the first paragraph of Article 335, Revised Penal Code, as amended, rape is committed by having carnal knowledge of a woman under 12 years old. As to the rape on 18 April 1998 when GINA was already 12 years of age, no clear evidence of force and intimidation could be found in her testimony; but she testified that she put up resistance by kicking and scratching her father. In any event, her father's moral ascendancy and influence over her substituted for violence and intimidation. 26 Anent the first assigned error, the same is bereft of merit. JOSE was arraigned and tried not under the sworn complaints, but under the informations which alleged the qualifying circumstances of minority and relationship. The informations in Criminal Cases No. 8355, 8356 and 8357 for the rapes committed in 1995 stated that GINA was 10 years old, while the information in Criminal Case Nos. 8358 for the rape in 1998 alleged that she was 12 years old. All informations specifically alleged that JOSE is GINA's father. He was therefore fully acquainted with the nature of the crime and the qualifying circumstances attendant in its commission as to enable him to adequately prepare for his defense. Hence, his constitutional right to be informed of the nature and cause of the accusation against him cannot be said to have been violated. GINA's minority was not only admitted by the parties at the pre-trial, but was also conclusively established by her Birth Certificate27 issued by the Municipal Civil Registrar of Rapu-Rapu, Albay, which shows that GINA was born on 23 May 1985. Indeed, as alleged in the informations, she was 10 years old in 1995 when the first three rape incidents occurred, and 12 years old on 18 April 1998 when the fourth rape was committed against her. Likewise, JOSE's relationship to GINA was sufficiently proved. GINA's testimony and her Birth Certificate show that JOSE is her father. JOSE himself and his wife Rosalina expressly admitted such fact. And now on the second assigned of error. The silence of a rape victim or her failure to disclose her misfortune to the authorities does not prove that the charges are baseless and fabricated. The victim would rather bear the ignominy and pain in private than reveal her shame to the world or risk the rapist's making good the threat to hurt her.28 With more reason would a girl who was ravished by her own father keep quiet about what befell her. Thus, the delay in reporting a rape case committed by a father against his daughter due to threats is justified.29 As to GINA's failure to escape or leave their house after the first rape, the same could hardly undermine the charges of rape. It must be noted that she was just 10 years old then and she was still fully dependent on her father for sustenance and support. Furthermore, it is unfair to judge the action of children who have undergone traumatic experiences by the norms of behavior expected of mature individuals under the same circumstances. 30 At any rate, GINA managed to escape after the fourth rape when she was already 12 years old.

JOSE's insinuation of ill-motive on the part of GINA to falsely accuse him of rape deserves scant consideration. We agree with the trial court that "[t]he attributed ill-will, even if the same is true,...[would] not drive GINA to denounce and pin down [her] father with so serious a crime that could forfeit not only his personal liberty but his human existence as well." In previous cases, we held that parental punishment or disciplinary chastisement is not enough reason for a daughter in a Filipino family to falsely accuse her father of rape. She would not subject herself to an examination of her private parts, undergo the trauma and humiliation of a public trial, and embarrass herself with the need to narrate in detail how she was raped if she was not in fact raped.31 It takes depravity for a young girl to concoct a tale of defloration, which would put her own father on death row, drag herself and the rest of her family to a lifetime of shame, and make them the object of gossip among their classmates and friends.[32] On JOSE's defense of denial, we have time and again ruled that mere denial cannot prevail over the positive testimony of a witness. A mere denial, just like alibi, is a self-serving negative evidence, which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail.33 Thus, JOSE's denial cannot outweigh the declaration of GINA on affirmative matters. There being proof beyond reasonable doubt that JOSE committed all the crimes charged, we have no choice but to affirm his conviction. We cannot modify the death penalty imposed by the trial court on him because the twin qualifying circumstances of minority and relationship were properly alleged and adequately proved. Anent his civil liability, the trial court's ruling thereon stands except as to the award of exemplary damages, which must be increased from P20,000 to P25,000 pursuant to current jurisprudence. WHEREFORE, the judgment of the Regional Trial Court of Legazpi City, Branch I, in Criminal Cases Nos. 8355, 8356, 8357 and 8358 finding accused-appellant JOSE VILLANUEVA guilty beyond reasonable doubt of four counts of rape and sentencing him in each case to suffer the penalty of death and to pay GINA VILLANUEVA the sum of P75,000 as indemnity ex delicto and P50,000 as moral damages is AFFIRMED, with the modification that the award of exemplary damages is increased to P25,000 in each case. Costs de officio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Morales, Callejo, Sr., and Azcuna, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 109250 September 5, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORIEL LACERNA y CORDERO & MARLON LACERNA y ARANADOR, accused. MARLON LACERNA y ARANADOR, accused-appellant.

PANGANIBAN, J.: The unrelenting and pervading war against illegal drugs has absorbed the attention of all branches of government, both national and local, as well as media, parents, educators, churches and the public at large. This case is one more intrepid battle in such all-out war. Herein appellant seeks acquittal on the ground that his acts did not constitute the crime of "giving away prohibited drugs" penalized by Section 4 of Republic Act No. 6425, as amended (The Dangerous Drugs Act). Nonetheless, he cannot escape the law because the very same deeds, which appellant admits to have performed, show his culpability for "illegal possession of prohibited drugs" penalized in Section 8 of R.A. 6425, as amended which is necessarily included in the crime charged in the Information. Statement of the Case This ruling is explained by the Court as it resolves this appeal from the Decision, 1 dated February 24, 1993, of the Regional Trial Court of Manila, Branch 16, 2 convicting Appellant Marlon Lacerna y Aranador "of violation of Section 4 of Republic Act No. 6425, as amended . . . ." Asst. City Prosecutor of Manila Juan O. Bermejo, Jr. charged appellant and Noriel Lacerna in an Information, 3 dated September 16, 1992, which reads as follows: 4
The undersigned accuses NORIEL LACERNA Y CORDERO and MARLON LACERNA Y ARANADOR of a violation of Section 4 Art. II, in relation to Section 21, Art. IV of Republic Act 6425, as amended by Presidential Decree No. 1675, . . . That on or about September 12, 1992, in the City of Manila, Philippines, the said accused, not being authorized by law to sell, deliver or give away to another or distribute any prohibited drug, did then and there wilfully, unlawfully and jointly sell, deliver or give away to another the following, to wit: Eighteen (18) blocks of marijuana flowering tops weight 18.235 kilograms which is a prohibited drug.

When the case was called for arraignment on October 7, 1992, appellant and his co-accused appeared without counsel but they alleged that they had engaged the services of a certain Atty. Kangleon. Thus, the trial court provisionally appointed Atty. Rodolfo P. Libatique of the Public Attorney's Office as counsel de oficio, in case Atty. Kangleon did not appear for the arraignment on October 28, 1992. 5 Because the alleged counsel de parte failed to show up during the arraignment on that date, Atty. Libatique assisted the accused who pleaded "not guilty." 6 After trial on the merits, the court a quo promulgated the assailed Decision, the dispositive portion of which reads: 7
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered: I. The guilt of the accused Marlon Lacerna having been established beyond reasonable doubt for the crime of violation of Section 4 of RA 6425, as amended, he is found guilty of the same, sentencing him to life imprisonment and to pay a fine of P20,000. With costs. II. The guilt for the crime charged of accused Noriel Lacerna not having been established beyond reasonable doubt he is hereby ACQUITTED. The warden of the Manila City Jail is ordered to release his person, unless held on other charges. The evidence seized in this case is to remain in the custody of the NBI Director as Drugs Custodian of the Dangerous Drugs Board. (RA 425, Sec. 36; Supreme Court Circular No. 9 dated July 18, 1973) to be properly disposed of after the final disposition of this case.

Hence, only Marlon Lacerna (his co-accused having been acquitted) interposed this appeal direct to the Supreme Court in view of the life penalty imposed. 8 The Facts Version of the Prosecution The prosecution presented the following witnesses: PO3 Carlito P. Valenzuela, Forensic Chemist Aida A. Pascual, and PO3 Rafael Melencio. Their testimonies are summarized by the Solicitor General in the Appellee's Brief as follows: 9
On September 12, 1992, Police Officer 3 (PO3) Carlito P. Valenzuela, a member of the Mobile Patrol Division of the Western Police District (WPD), was assigned to man the checkpoint and patrol the area somewhere along the sidestreets of Radial Road near Moriones Street. The assignment to monitor strategic places in the city and barangays of Manila was a direct order from General Nazareno. Thus, he and his companion PO3 Angelito Camero went about cruising the area in their Mobile Patrolcar, with PO3 Valenzuela at the helm. At about 2:00 p.m., appellant and co-accused, who were aboard a taxicab, passed by PO3 Valenzuela's place of assignment, which was then heavy with traffic, looking suspicious (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 3-4; Nov. 20, 1992, pp. 2-7). Appellant was seated beside the taxi driver while co-accused was seated at the left back seat of the taxi. When PO3 Valenzuela looked at the occupants of said taxi, the latter bowed their heads and slouched, refusing to look at him. Feeling that something was amiss, PO3 Valenzuela and his companion stopped the vehicle, signalling the driver to park by the side of the road (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 3-4). PO3 Valenzuela and his co-police officer asked permission to search the vehicle. As the occupants readily agreed, the police officers went about searching the luggages in the vehicle which consisted of a knapsack and a dark blue plastic grocery bag. They asked appellant what the contents of the plastic bag were. Co-accused Noriel Lacerna immediately answered that the bag contained his vomit (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 4-5).

Skeptical of what appellant and co-accused disclosed as regards the contents of the plastic bag, PO3 Valenzuela made a hole in the bag and peeped inside. He found several blocks wrapped in newspaper, with the distinct smell of marijuana emanating from it. PO3 Valenzuela opened one of the boxes and saw dried marijuana leaves. He told appellant and co-accused that the contents of the bag were marijuana, which co-accused readily affirmed. According to both Lacernas, the bag was a "padala" of their uncle. Specifically, they claimed that the bag was sent by their uncle, who happened to be in Baguio City, for shipment to Iloilo (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 5-7; Nov. 20, 1992, pp. 8-10). Appellant and co-accused, and the plastic bag containing blocks of marijuana were brought by PO3 Valenzuela and PO3 Camero to the WPD Headquarters on UN Avenue, Manila. 10 At about 9:00 p.m. of the same day, both appellant and co-accused were turned over to PO3 Rafael Melencio for investigation while the blocks were turned over to Lt. de Soto (tsn., PO3 Melencio, Dec. 11, 1992, pp. 3-5, 20). Lt. de Soto counted the blocks of marijuana, numbering eighteen (18) in all. Each block was wrapped in newspaper. After seeing what the contents of the blocks were, the specimens (Exhs. "B" to "B-19) were 11 brought to the National Bureau of Investigation (NBI) for further examination. On the other hand, PO3 Melencio investigated appellant and co-accused, informing them of their constitutional rights during a custodial investigation. Thereafter, he prepared the Affidavit of Apprehension and the Booking Sheet and Arrest Report (Exhs. "A", "G", List of Exhibits, pp. 1, 15; tsn., PO3 Melencio, Dec. 11, 1992, pp. 15-24). NBI Forensic Chemist Aida A. Pascual examined the eighteen (18) confiscated blocks which tested positive of containing marijuana (Exhs. "C", "F" to "F-9". List of Exhibits, pp. 2-14; tsn., A. Pascual, Dec. 2, 1992, pp. 2-5).

Version of the Defense Appellant sets up the defense of denial, alleging that the blue plastic bag was owned by his uncle who requested him to bring it to Iloilo. He also denied knowing that it contained marijuana. In his Brief prepared by the Public Attorney's Office, he narrated his version of the factual circumstances of this case, as follows: 12
On September 12, 1992, at about 2:00 P.M., accused Marlon and Noriel Lacerna were riding in a taxicab on their way to (the) North Harbor to board a boat bound for Iloilo City. While plying along Pier 15 their taxicab was flagged down by a patrol mobile car. Accused Marlon Lacerna (appellant herein) was sitting in front while accused Noriel Lacerna was at the back of the taxicab. The accused carried two bags. One bag contained their personal belongings and the other bag contained things which their uncle Edwin Lacerna asked them to bring along. When their taxicab was stopped, the two policemen in the Mobile car requested them that they and their baggage be searched. Confident that they have not done anything wrong, they allowed to be searched. During the (search), the two accused were not allowed to alight from the taxicab. The knapsack bag which contained their clothes was first examined in front of them. The second bag was taken out from the taxi and was checked at the back of the taxicab. The accused were not able to see the checking when the policemen brought the plastic bag at the back of the taxi. After checking, the policemen told them its "positive". The accused were (asked) to alight and go to the patrol car. They were brought to the WPD Headquarters at United Nations. While there, they were brought inside a room. They asked what wrong they have done but the policemen told them to wait for Major Rival. At about 8:00 o'clock P.M., Major Rival talked to them and asked them where the baggage came from and they answered that it was given to them by their uncle. Then Major Rival asked them to hold the marijuana and pictures were taken. Later, they were brought inside the cell where they were maltreated by the "Kabo". The "Kabo" forced them to admit ownership of the marijuana. Noriel was boxed on the chest, blindfolded and a plastic (bag) was placed on his neck and was strangled. The mauling took place for about 30 minutes inside the toilet. They refused to sign the Booking and Arrest Report but they impressed their fingerprint on a white bond paper. They were brought by Melencio to the Inquest Prosecutor at the City Hall. On the way to the Inquest Prosecutor, Melencio told them to admit the charge against them before the Inquest Fiscal, because if they will deny, something (would happen) to them in the afternoon and Melencio even uttered to them "vulva of your mother." Because they were apprehensive and afraid, they admitted the charge before the Inquest Fiscal. (Appellant) Marlon Lacerna first met his uncle Edwin Lacerna at Munoz Market. The second time was on September 11, 1992, when his uncle went to his brother's house in Caloocan City and requested him to bring his (uncle) personal belongings upon learning that he (Marlon) is leaving for Iloilo city the next day,

September 12, 1992. He told his uncle to bring his personal belongings either in the evening of that day or the following day at the (Grand) Central (Station), Monumento because he was going to buy a ticket for Noriel as he intend (sic) to bring the latter with him in going home to the province. His uncle already gave a ticket for him. When he and Noriel (arrived) at the Grand Central at about 10:00 o'clock A.M. on September 12, 1992, their uncle was already there. The latter placed the plastic bag besides their baggages. They no longer inspected the contents of the bag as the same was twisted and knotted on top. After getting a ticket from the office of Don Sulpicio Lines, Marlon told Noriel to hail a taxi and then they proceeded to the pier. (Appellant's) purpose in going home to Iloilo was to get all the requirements needed in his application to enter the Marines. Accused Noriel just arrived in Manila three days before September 12, 1992 to look for a job and was staying with (appellant) at Caloocan City. In the evening of September 11, 1992, (appellant) requested him to come . . . with him to Iloilo and assured him that he (would) be the one to pay for (Noriel's) fare. (TSN., January 6, 1993, pp. 3-23; January 8, 1993, pp. 2-12; January 11, 1993, pp. 2-18; January 20, 1992, pp. 2-6; January 22, 1993, pp. 2-14)

Ruling of the Trial Court The court a quo observed that appellant could not be convicted of "delivering" prohibited drugs because the Information did not allege that he knowingly delivered marijuana. Neither could he be convicted of "transporting or dispatching in transit" such prohibited drugs because these acts were not alleged in the Information. The trial court mused further that appellant could not be convicted of "selling" marijuana because the elements constituting this crime were not proven. However, the Information charged appellant with "giving away to another" prohibited drugs, a charge which was different from "delivery" defined under Section 2 (f) 13 of RA. 6245, as amended. Citing People vs. Lo Ho Wing, 14 the trial court ruled that "giving away" to another is akin to "transporting" prohibited drugs, a malum prohibitum established by the mere commission of said act. Thus, the court a quo convicted appellant of "giving away" marijuana to another on the following premise: 15
It is not denied by (appellant) that he did give to his co-accused cousin Noriel Lacerna the bundled 18 blocks of marijuana who thereupon seated himself at the rear of the taxi with the marijuana. His claim that he did not know the contents of the blue plastic bag can hardly be believed because it is within judicial notice that the marijuana contents readily emits a pungent odor so characteristic of marijuana as what happened when the 18 blocks were displayed in open Court. But as stated, guilty knowledge is not required by the phrase "GIVE AWAY TO ANOTHER" (Sec. 4). It was clearly established that he gave the stuff to another, that is, to his co-accused Noriel Lacerna. The law does not distinguish as to whether the word "another" refers to a third person other than a co-accused or to a co-accused. The information, as in the case at bar, need not allege guilty knowledge on the part of Marlon Lacerna in "giving away" to another the marijuana. (Appellant) should, therefor be found culpable for violating Section 4 of RA 6425, as amended, as charged for "giving away to another" the marijuana.

Accused Noriel Lacerna, on the other hand, was acquitted for insufficiency of evidence. The court a quo reasoned that "it cannot be said that he did 'give away to another' the marijuana for it was (appellant) who gave the marijuana to (Noriel)." Besides, unlike appellant who was urbanized in mannerism and speech, Noriel Lacerna manifested probinsyano traits and was, thus, unlikely to have dealt in prohibited drugs. The Issues Appellant objects to the trial court's Decision and assigns the following errors:
I
16

The lower court erred in making a sweeping statement that the act of "giving away to another(') is not defined under R.A. 6425 specifically requiring knowledge what intent one (sic) is passing is a dangerous drug, as contradistinguished from the term "deliver; where knowledge is required. II The lower court erred in not giving credence to the assertion of accused-appellant that he had no knowledge that what were inside the plastic bag given to him by his uncle were marijuana leaves. III The trial court erred in convicting accused-appellant despite failure of the prosecution to prove his guilt beyond reasonable doubt.

The Court's Ruling After meticulously reviewing the records of the case and taking into account the alleged errors cited above and the argument adduced in support thereof, the Court believes that the issues can be restated as follows: (1) Was appellant's right against warrantless arrest and seizure violated? (2) Was the trial court correct in convicting appellant for "giving away to another" 18 blocks of marijuana? and (3) May the appellant be held guilty of "illegal possession" of prohibited drugs? The Court answers the first two questions in the negative and the third in the affirmative. First Issue: Appellant's Right Against Warrantless Search and Seizure The defense argues that the bricks of marijuana were inadmissible in evidence as they were obtained through illegal search and seizure. Appellant alleges that at the time of the search and seizure, he and his co-accused were not committing any crime as they were merely riding a taxicab on the way to Pier 15, North Harbor in Manila. Hence, the precipitate arrest and seizure violated their constitutional right and the marijuana seized constituted "fruits of the poisonous tree." The Solicitor General disagrees, contending that the search and seizure were consistent with recent jurisprudential trend liberalizing warrantless search and seizure where the culprits are riding moving vehicles, because a warrant cannot be secured in time to apprehend the mobile target. Both contentions are inaccurate. In the recent case of People vs. Cuison, 17 this Court reiterated the principles governing arrest, search and seizure. To summarize, let us begin with Section 2, Article III of the 1987 Constitution which provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The Constitution further decrees that any evidence obtained in violation of the provision mentioned is inadmissible in evidence:
Sec. 3. . . . (2) Any evidence obtained in violation of . . . the preceding section shall be inadmissible for any purpose in any proceeding .

However, not being absolute, this right is subject to legal and judicial exceptions. The Rules of Court, Section 12 of Rule 126, provides that a person lawfully arrested may be searched for "dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant." Five generally accepted exceptions to the rule against warrantless arrest have also been judicially formulated as follows: (1) search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs searches, and (5) waiver by the accused themselves of their right against unreasonable search and seizure. 18 Search and seizure relevant to moving vehicles are allowed in recognition of the impracticability of securing a warrant under said circumstances. In such cases, however, the search and seizure may be made only upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains an item, article or object which by law is subject to seizure and destruction. 19 Military or police checkpoints have also been declared to be not illegal per se as long as the vehicle is neither searched nor its occupants subjected to body search, and the inspection of the vehicle is merely visual. 20 In the case at bar, the taxicab occupied by appellant was validly stopped at the police checkpoint by PO3 Valenzuela. It should be stressed as a caveat that the search which is normally permissible in this instance is limited to routine checks visual inspection or flashing a light inside the car, without the occupants being subjected to physical or body searches. A search of the luggage inside the vehicle would require the existence of probable cause. 21 In applicable earlier Decisions, this Court held that there was probable cause in the following instances: (a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused; 22 (b) where an informer positively identified the accused who was observed to have been acting suspiciously; 23 (c) where the accused fled when accosted by policemen; 24 (d) where the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; 25 and (e) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy one who participated in the drug smuggling activities of the syndicate to which the accused belonged that said accused were bringing prohibited drugs into the country. 26 In the case at hand, however, probable cause is not evident. First, the radio communication from General Nazareno, which the arresting officers received and which they were implementing at that time, concerned possible cases of robbery and holdups in their area. 27 Second, Noriel Lacerna's suspicious reactions of hiding his face and slouching in his seat when PO3 Valenzuela's car passed alongside the taxicab might have annoyed the latter, or any other law enforcer, and might have caused him to suspect that something was amiss. But these bare acts do not constitute probable cause to justify the search and seizure of appellant's person and baggage. Furthermore, the Claudio ruling cannot be applied to this case because the marijuana was securely packed inside an airtight plastic bag and no evidence, e.g., a distinctive marijuana odor, was offered by the prosecution. Nonetheless, we hold that appellant and his baggage were validly searched, not because he was caught in flagrante delicto, but because he freely consented to the search. True, appellant and his companion were stopped by PO3 Valenzuela on mere suspicion not probable cause that they were engaged in a felonious enterprise. But Valenzuela expressly sought appellant's permission for the search. Only after appellant agreed to have his person and baggage checked did the actual search commence. It was his consent which validated the search, waiver being a generally recognized exception to the rule against warrantless search. 28

We are aware that this Court in Aniag, Jr. vs. COMELEC outlawed a search based on an implied acquiescence, because such acquiescence was not consent within the purview of the constitutional guaranty, but was merely passive conformity to the search given under intimidating and coercive circumstances. 29 In the case before us, however, appellant himself who was "urbanized in mannerism and speech" expressly said that he was consenting to the search as he allegedly had nothing to hide and had done nothing wrong. 30 In his brief, appellant explicitly, even if awkwardly, reiterated this: "Confident that they [the accused] have not done anything wrong, they allowed to be searched." This declaration of appellant is a confirmation of his intelligent and voluntary acquiescence to the search. The marijuana bricks were, therefore, obtained legally through a valid search and seizure. They were admissible in evidence; there was no poisonous tree to speak of. Second Issue: Did Appellant "Give Away" the Prohibited Drug? The trial court justified the conviction of appellant for "giving away to another" the prohibited drugs, because he literally handed to Noriel the plastic bag containing marijuana, manually transferring the plastic bag from the front seat to the backseat of the taxicab. We hold, however, that this is not the act penalized by the Dangerous Drugs Act of 1972. Section 4 of R.A. 6425, as amended, the violation of which is charged in the Information, penalizes "any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions." The phrase "give away" is commonly defined as "to make a present of; to donate, or to make a sacrifice." 31 As used in a statute making it an offense to "sell, give away, or otherwise dispose of" liquor without a license, this phrase was construed as extending only to a disposition in ejusdem generis with a sale or a gift. 32 It is synonymous with "to furnish," a broad term embracing the acts of selling and giving away with the intent of transferring ownership. Selling by itself is one distinct mode of committing the offense, and furnishing is intended only to include other modes of affording something to others besides selling it. 33 As distinguished from "delivery," which is an incident of sale, "giving away" is a disposition other than a sale. It is, therefore, an act short of a sale which involves no consideration. The prohibited drug becomes an item or merchandise presented as a gift or premium (giveaway), where ownership is transferred. According to appellant, he gave the plastic bag and the knapsack to Noriel because the latter got into the taxicab first and because there was more room in the backseat than in the front. By handing the plastic bag to Noriel, appellant cannot be punished for giving away marijuana as a gift or premium to another. In Cuison, 34 this Court acquitted an accused of carrying and transporting prohibited drugs because the act per se of handing over a baggage at the airport cannot in any way be considered criminal. Further, adopting the trial court's interpretation would lead to absurd conclusions. Following the trial court's line of reasoning, Noriel should have been held liable for the same crime when he gave the plastic bag to PO3 Valenzuela for the latter's inspection. And yet, the trial court inexplicably acquitted him. Valenzuela would similarly be criminally culpable, as he testified that he turned over the plastic bag to his superior, Lt. de Soto. It is a well-settled rule that statutes should receive a sensible construction so as to give effect to the legislative intention and to avoid an unjust or an absurd conclusion. 35

Third Issue: May Appellant Be Convicted of Illegal Possession? Appellant's exoneration from giving away a prohibited drug to another under Section 4 of the Dangerous Drugs Act does not, however, spell freedom from all criminal liability. A conviction for illegal possession of prohibited drugs, punishable under Section 8 of the same Act, is clearly evident. In People vs. Tabar, 36 the Court convicted appellant of illegal possession under Section 8 of said Act, although he was charged with "selling" marijuana under Section 4, Article II thereof. 37 The prevailing doctrine is that possession of marijuana is absorbed in the sale thereof, except where the seller is further apprehended in possession of another quantity of the prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller. 38 Possession is a necessary element in a prosecution for illegal sale of prohibited drugs. It is indispensable that the prohibited drug subject of the sale be identified and presented in court. 39 That the corpus delicti of illegal sale could not be established without a showing that the accused possessed, sold and delivered a prohibited drug clearly indicates that possession is an element of the former. The same rule is applicable in cases of delivery of prohibited drugs and giving them away to another. In People vs. Manzano, 40 the Court identified the elements of illegal sale of prohibited drugs, as follows: (1) the accused sold and delivered a prohibited drug to another, and (2) he knew that what he had sold and delivered was a dangerous drug. Although it did not expressly state it, the Court stressed delivery, which implies prior possession of the prohibited drugs. Sale of a prohibited drug can never be proven without seizure and identification of the prohibited drug, affirming that possession is a condition sine qua non. It being established that illegal possession is an element of and is necessarily included in the illegal sale of prohibited drugs, the Court will thus determine appellant's culpability under Section 8. From the penal provision under consideration and from the cases adjudicated, the elements of illegal possession of prohibited drugs are as follows: (a) the accused is in possession of an item or object which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed the prohibited drug. 41 The evidence on record established beyond any doubt that appellant was in possession of the plastic bag containing prohibited drugs without the requisite authority. The NBI forensic chemist's identification of the marijuana or Indian hemp was conclusive. Appellant protests the trial court's finding that he knew that the plastic bag contained marijuana. The lower court ruled that appellant could not have possibly missed the pervasive pungent smell emitted by marijuana which was duly noted when the marijuana was exhibited in open court. This reasoning, however, is not supported by the evidence; the plastic bag, at the time of the search and seizure, was "twisted and tied at the top," and thus airtight. PO3 Valenzuela did not even notice this pervasive characteristic smell until he poked a hole in the plastic bag and unwrapped the newspaper covering one of the marijuana bricks. It is well-settled that criminal intent need not be proved in the prosecution of acts mala prohibita. On grounds of public policy and compelled by necessity, courts have always recognized the power of the

legislature, as "the greater master of things," to forbid certain acts in a limited class of cases and to make their commission criminal without regard to the intent of the doer. 42 Such legislative enactments are based on the experience that repressive measures which depend for their efficiency upon proof of the dealer's knowledge or of his intent are of little use and rarely accomplish their purposes; besides, the prohibited act is so injurious to the public welfare that, regardless of the person's intent, it is the crime itself. 43 This, however, does not lessen the prosecution's burden because it is still required to show that the prohibited act was intentional. 44 Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but if he did intend to commit an act, and that act is, by the very nature of things, the crime itself, then he can be held liable for the malum prohibitum. 45 Intent to commit the crime is not necessary, but intent to perpetrate the act prohibited by the special law must be shown. In Bayona, the Court declared: 46
. . . The law which the defendant violated is a statutory provision, and the intent with which he violated it is immaterial. . . . . The act prohibited by the Election Law was complete. The intention to intimidate the voters or to interfere otherwise with the election is not made an essential element of the offense. Unless such an offender actually makes use of his revolver, it would be extremely difficult, if not impossible, to prove that he intended to intimidate the voters. The rule is that in acts mala in se there must be a criminal intent, but in those mala prohibita it is sufficient if the prohibited act was intentionally done. "Care must be exercised in distinguishing the difference between the intent to commit the crime and the intent to perpetrate the act. . . . (U.S. vs. Go Chico, 14 Phil., 128).

In illegal possession of prohibited drugs under Section 8 of the Dangerous Drugs Act, the prosecution is not excused from proving that possession of the prohibited act was done "freely and consciously," which is an essential element of the crime. In the case at bar, appellant was found to have in his possession a plastic bag containing 18 kg of marijuana formed into 18 bricks which were separately wrapped. His possession thereof gives rise to a disputable presumption under Section 3[j], Rule 131 of the Rules of Court, 47 that he is the owner of such bag and its contents. His bare, unpersuasive, feeble and uncorroborated disavowal that the plastic bag was allegedly given to him by his uncle without his knowing the contents amounts to a denial which by itself is insufficient to overcome this presumption. 48 Besides, this defense, unless substantiated by clear evidence, is invariably viewed with disfavor by courts, for it can just as easily be concocted. Verily, it is a common and standard defense ploy in most prosecutions involving dangerous drugs. 49 Further, the trial court did not give credence to appellant's denial. It is axiomatic that appellate courts accord the highest respect to the assessment of witnesses' credibility by the trial court, because the latter was in a better position to observe their demeanor and deportment on the witness stand. 50 The defense failed to present sufficient reasons showing that the trial court had overlooked or misconstrued any evidence of substance that would justify the reversal of its rejection of appellant's defense of denial. Appellant is, therefore, liable for illegal possession of prohibited drugs under Section 8 of the Dangerous Drugs Act. 51 WHEREFORE, the assailed Decision is hereby MODIFIED. Appellant is CONVICTED of illegal possession of prohibited drugs under Section 8 of R.A. 6425; SENTENCED, in accordance with the Indeterminate Sentence Law, to eight (8) years as minimum to twelve (12) years as maximum; and ORDERED to pay a fine of twelve thousand pesos (P12,000.00). Costs de oficio.

SO ORDERED. Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur. Footnotes
1 Rollo, pp. 16-31. 2 Presided by Judge Ramon O. Santiago. 3 Records, p. 1. 4 Ibid. 5 Id., p. 11. 6. Id., p. 22. In People vs. Mario Serzo, Jr., G.R. No. 118435, June 20, 1997, we ruled that the accused's right to counsel is absolute, but his right to be represented by a counsel of his choice is limited. 7 Rollo, p. 31. 8 Id., p. 22. 9 Ibid., pp. 85-89. 10 The plastic bag was destroyed during the media presentation at the WPD Headquarters in U.N. Avenue, which was attended by newspaper and television reporters (TSN, November 20, 1992, p. 12). 11 There was another media coverage at the Narcotics Division of the NBI (Ibid., p. 17). 12 Rollo, pp. 49-51. 13 "(f) "Deliver" refers to a person's act of knowingly passing a dangerous drug to another personally or otherwise, and by any means, with or without consideration; 14 193 SCRA 122, 130, January 21, 1991. 15 Rollo, p. 30. 16 Rollo, pp. 51-52. 17 256 SCRA 325, 338, April 18, 1996. 18 People vs. Fernandez, 239 SCRA 174, 182-183, December 13, 1994. In the same case, J. Puno proposed a sixth exception: exigent circumstances, as a catch-all category that would encompass a number of diverse situations where some kind of emergency makes obtaining a search warrant impractical, useless, dangerous or unnecessary. 19 People vs. CFI of Rizal, Br. IX, 101 SCRA 86, 99, November 17, 1980; and People vs. Mago, 22 SCRA 857, 872-873, February 28, 1968. 20 Aniag, Jr. vs. Commission on Elections, 237 SCRA 424, 433, October 7, 1994. 21 People vs. Barros, supra, p. 565-572; People vs. Saycon, 236 SCRA 325, 239-240, September 5, 1994 citing Valmonte vs. De Villa, 178 SCRA 211 (1989).

22 People vs. Claudio, 160 SCRA 646, April 15, 1988. 23 People vs. Tangliben, 184 SCRA 220, April 6, 1990. 24 Posadas vs. Court of Appeals, 188 SCRA 288, August 2, 1990. 25 People vs. Maspil, Jr., 188 SCRA 751, August 20, 1990. 26 People vs. Lo Ho Wing, 193 SCRA 122, January 21, 1991. 27 TSN, November 20, 1992, p. 3. 28 People vs. Fernandez, supra; Aniag, Jr. vs. Commission on Elections, supra, p. 436; People vs. Exala, 221 SCRA 494, 500-501, April 23, 1993; People vs. Barros, 231 SCRA 557, 573-574, March 29, 1994; People vs. Damaso, 212 SCRA 547, 555-556, August 12, 1992. 29 Ibid., p. 436-437. 30 TSN, January 6, 1993, p. 8. 31 Webster's Third New World International Dictionary, p. 960. 32 Words & Phrases, permanent ed., Vol. 18, p. 679, citing Maxwell v. State, 37 So. 266, 140 Ala. 131. 33 Ibid., p. 678, citing State v. Freeman, 27 Vt. 520. 34 Supra, p. 341. 35 Ramirez vs. Court of Appeals, 248 SCRA 590, 596, September 28, 1995; People vs. Rivera, 59 Phil. 236, 242 (1933). 36 222 SCRA 144, 152, May 17, 1993. 37 From the civil law point of view, however, sale is totally different from possession. Article 1458 of the Civil Code defines sale as a contract whereby "one of the contracting parties obligates himself to transfer the ownership of and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent," while "possession is the holding of a thing or the enjoyment of a right" as defined by Article 523 of the Civil Code. 38 People vs. Angeles, 218 SCRA 352, 364-365, February 2, 1993; and People vs. Catan, 205 SCRA 235, 243, January 21, 1992. 39 People vs. Mendiola, 235 SCRA 116, 122, August 4, 1994; People vs. Martinez, 235 SCRA 171, 179, August 5, 1994; People vs. Dismuke, 234 SCRA 51, 60-61, July 11, 1994; People vs. Gireng, 240 SCRA 11, 17, February 1, 1995; People vs. Florez, 243 SCRA 374, 381, April 6, 1995. 40 227 SCRA 780, 785, November 16, 1993. 41 David G. Nitafan, Annotations on the Dangerous Drugs Act, 1995 ed., p. 226. The adjudicated cases include those decided under the old Opium Law which required that before an accused can be convicted of illegal possession of opium, there must be a demonstration of: (1) the occupancy or possession and (b) the intent to possess opium. 42 People vs. Bayona, 61 Phil. 181, 185 (1935); People vs. Ah Chong, 15 Phil. 488, 500 (1910); and U.S. vs. Go Chico, 14 Phil. 128, 132 (1909). 43 Ramon C. Aquino, The Revised Penal Code, Vol. I, 1987 ed., pp. 52-54.

44 People vs. Bayona, supra, p. 185. 45 U.S. vs. Go Chico, 14 Phil. 128, 132 (1909). 46 Op. cit. 47 Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx xxx xxx "(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, the things which a person possesses, or exercises acts of ownership over, are owned by him;" 48 People vs. Burton, G.R. No. 114396, February 19, 1997, p. 27. 49 People vs. Solon, 244 SCRA 554, 560, May 31, 1995; and People vs. Angeles, supra, p. 361. 50 People vs. Flores, supra, pp. 378-379; and People vs. Ang Chun Kit, 251 SCRA 660, 666, December 25, 1995. 51 Since the crime was committed on September 12, 1992, or prior to the effectivity of RA. 7659, the applicable law is R.A. 6425, as amended by B.P. 179, which provides that: xxx xxx xxx The penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shall possess or use Indian hemp.

THIRD DIVISION G.R. No. 177944 December 24, 2008

JUDITH P. ORTEGA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION CHICO-NAZARIO, J.: For Review under Rule 45 of the Revised Rules of Court is the Decision1 dated 27 October 2006 and Resolution dated 24 April 2007 of the Court of Appeals in CA-G.R. CEB CR. No. 00241 entitled, People of the Philippines v. Judith P. Ortega, affirming the Decision2 rendered by the Regional Trial Court (RTC) of the 7 th Judicial Region, Cebu City, Branch 21, in Criminal Case No. CBU-53833, finding accused-appellant Judith P. Ortega guilty of Estafa. Based upon an Affidavit 3 executed by complainant Marilou Oljol Adorable (Adorable) on 12 July 1999, accused-appellant Judith Perez Ortega (Ortega) was charged by the City Prosecutor in an Information dated 19 November 1999, filed before the RTC of Cebu City, with the crime of Estafa. The Information reads: That on or about the 5th day of September 1998, and for sometime subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, with intent to gain, and by means of deceit, fraudulent acts and false pretenses executed prior to or simultaneously with the commission of the fraud, to wit: by falsely pretending to one Marilou Oljol Adorable that she is a real estate agent and offered the latter that she could transfer the name of said Marilou Oljol Adorable in the tax declaration even without a Deed of Sale because of her connections, and by reason of such false pretenses or fraudulent acts of inducement, said Marilou Oljol Adorable was induced to give the total amount of P27,450.00 as processing fees, when in truth and in fact, as the said accused very well knew that she could not facilitate the same, and that such misrepresentation were resorted to only for the purpose of obtaining money from said Marilou Oljol Adorable, and once in possession of the amount, the said accused misappropriated, misapplied and converted the same into her own personal use and benefit and, in spite of repeated demands, said accused failed and refused, and up to the present time still fails and refuses, to return the money, to the damage and prejudice of said Marilou Oljol Adorable in the amount aforestated.4 The case was docketed as Criminal Case No. CBU-53833. On her arraignment and with the assistance of counsel, accused-appellant pleaded not guilty to the charge. Thereafter, a pre-trial conference was conducted and terminated on 5 February 2001. During trial, the prosecution presented Adorable, complainant; and one Epifania Laranjo, a co-teacher of Adorable. On the other hand, the defense presented accused-appellant as its lone witness. The prosecutions version of the facts, as adopted from the trial courts Decision dated 19 April 2005 is as follows:

On (sic) August 1998, Marilou Adorable, a public school teacher of Don Sergio Sr. Memorial High School was introduced by her co-teacher Epifania to the accused Judith P. Ortega. Judith P. Ortega has a son who is studying [in] said school as a first year student. On (sic) August 1998, the accused went to the school in order to follow up the status of her son. When she was introduced to the accused by Epifania, the accused inquired from her if she would like to purchase land and she replied she is interested but doesnt have the money. The accused said there is an agricultural land, a parcel of land with an area of 1,000 square meters which is for sale for the amount of P50,000.00 in installments. The accused made sweet convincing words in offering the land for sale. After their conversation, she said she would come back to bring the papers for that parcel of land. When she came back, she asked Mrs. Adorable to give the sum of P1,200.00 (Exhibit A) for the payment of notarial documents. On September 12, 1998, she asked from Mrs. Adorable for the sum of P6,000.00 (Exhibit B) which was for the payment of fees for the Registry Deeds, Bureau of Lands and BIR. Accused never issued any official receipt. On September 18, 1998, she came back and asked for P8,000.00 for the payment of capital gains tax. Mrs. Adorable gave the sum of P8,000.00 where she identified the receipt as Exhibit C. On September 25, 1998, the accused came back again and asked for the amount of P4,000.00 for the approved plan. Marilou Adorable gave P500.00 cash and she pawned her ring and cassette recorder for P3,500.00 to make a total of P4,000.00. She identified Exhibit "D," the receipt. Again, on October 10, 1998, the accused came back and requested the sum of P4,000.00 which was for the payment of the affidavit of no landholdings and improvements. She identified (sic) as Exhibit E and E-1. At this point, Mrs. Adorable doubted the accused why she did not give her official receipts. So she confronted her for the official receipt. The accused promised to bring the tax declaration on her name. Thus, on November 26, 1998, accused came back and told Mrs. Adorable to wait as the tax declaration is already prepared and transferred in her name. The accused again asked P500.00 fee which the accused issued a receipt (Exhibit F and F-1). On December 2, 1998, again the accused came back to see Mrs. Adorable and asked for the payment of P750.00 for the titling of the lot. She identified Exhibit G and G-1 which was (sic) the receipt. The accused gave to Mrs. Marilou Adorable, a tax declaration no. 97-G.R.-07-050-00093 in the name Adorable, Marilou. It was a Xerox copy because the original copy was taken back by the accused. She went to a lending company to secure a loan. In fact, she went to several lending companies to secure a loan and she was told that the tax declaration has to be authenticated. She went to the City Assessors Office for the tax declarations (Exhibit "H") for the authentication. She was informed that it was the tax declaration print out but it was not in her name that appears in the record of the assessors office. What she received was a fake tax declaration according to the assessors office. She confronted the accused why her name did not appear in the tax declaration. The accused said why she did not inform her about her going to the assessors office as she would have told her that it was not yet entered in the computer. She waited for a while for the accused to deliver the real and genuine tax declaration. She waited for so long until she lost her patience. She demanded from the accused the return of her money but the accused refused. She went to the Lupong Barangay and there she met the accused. At the time of their meeting at the Lupong Barangay, the accused informed her that Mrs. Adorable did not pay her anything. And because of this, Mrs. Adorable had so much indebtedness. The accused never returned the money and she was disappointed. Mrs. Adorable wanted her money back. She identified the certification from the barangay as Exhibit I.5

The defense presented a version entirely different from the narration of facts by the prosecution. Testifying for and on her own behalf, Ortega denied the allegations of the complainant. In fact, accused-appellant explained that she knew Adorable to be the teacher of her son. According to her, it was Adorable who sought her help regarding the many loans she had to settle. According to Ortega, Adorable visited her at her house on 16 February 1999 and asked for assistance regarding the property involved, because the latter had some debts. At the instance of Adorable, Ortega made it appear that the former had sought her help in the processing of the application for title to the land to show to her creditors how she had spent their money. As requested, Ortega issued receipts for the benefit of Adorable so the latter could show to her creditors that her property papers were being processed. Ortega was also told to prepare another note that the receipts were not genuine, but she was afraid to get involved and get prejudiced by the receipts prepared by her. To show that it was just a scheme, she presented a document allegedly signed by Adorable, in which Adorable admitted that her land title application was just for show to her creditors. Ortega claims that it was Adorable who dictated what was to be written on the receipts and that the receipts were done in the penmanship of Ortegas daughter, although signed by her. On Adorables claim that she pawned her Singer Sewing Machine so she could give P4,000.00, Ortega countered that the sewing machine was pawned only for P1,500.00. Furthermore, Ortega denied knowledge of Adorables fake tax declaration and of any know-how regarding the transfer of lots. Ortega denied knowing Manuel Cabingatan, the registered owner of the parcel of land subject of the Deed, and denied having ties with anybody from the Assessors Office, Register of Deeds or the DENR. Finally, Ortega testified that she was supposed to present a vital witness, a certain Lila Chin, to corroborate and support her version. Said witness, though always present and ready to testify during the scheduled hearings, was unable to testify because the defense counsel was always absent. On 23 February 2005, when defense counsel again failed to appear, the trial court considered the case submitted for decision. In its decision dated 19 April 2005, the RTC of Cebu City convicted Ortega of the crime of estafa under Article 315, paragraph 2(a) of the Revised Penal Code, disposing as follows: WHEREFORE, premises considered, the Court finds the accused Judith P. Ortega, guilty beyond reasonable doubt of the crime of estafa as defined in subsection 2 par. (a) of Art. 315 of the Revised Penal Code, for which she is hereby sentenced to suffer an indeterminate penalty of 1 year 8 months and 21 days of prision correctional, as minimum to 8 years of prision mayor as maximum and to indemnify Mrs. Marilou Adorable the sum of P27,450.00, the amount of which she has been defrauded. 6 Resolving the case based on the sole issue of credibility, the RTC gave more weight and probative value to the positive testimony of complainant Marilou Adorable, corroborated by her co-teacher Epifania Laranjo, that it was Ortega who deceived Adorable into purchasing a land in installments after having paid the amount of P27,450.00, for which she was later on to be given a fake tax declaration. On the ground of newly discovered evidence, Ortega filed a Motion for Reconsideration/Motion for New Trial 7 before the same court. The RTC, however, found the Motion to be fatally defective. 8 On Notice of Appeal, Ortega appealed to the Court of Appeals, which docketed the case as CA-G.R. CEB No. 0024, raising the following issues: I. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. II. THE COURT A QUO GRAVELY ERRED WHEN IT DID NOT ALLOW WITNESS LILA CHIN TO TESTIFY, DESPITE BEING PRESENT DURING THE TRIAL, JUST BECAUSE THE DEFENSE COUNSEL WAS NOT PRESENT. SAID WITNESS COULD HAVE CONFIRMED AND CORROBORATED THE VERSION OF THE ACCUSED-APPELLANT.

III. THAT THE PROSECUTION FAILED TO PRESENT EVIDENCE TO PROVE THE GUILT OF ACCUSED-APPELLANT BEYOND REASONABLE DOUBT. Sustaining the RTCs finding of guilt beyond reasonable doubt, the Court of Appeals resolved: WHEREFORE, the appeal filed by the accused-appellant is hereby DENIED. Accordingly, the assailed Decision of the Regional Trial Court, Branch 21, of Cebu City, dated 19 April 2005 is AFFIRMED in toto.9 In convicting Ortega, the Court of Appeals gave more credence to the testimonies of the prosecution witnesses and scant consideration to the version of the defense. The Court of Appeals explained that were it not for the deceitful representations of Ortega, Adorable would have had no reason to make advances for the payment of the documents relating to the purchase and titling of the property. Hence, the present Petition for Review on Certiorari in which Ortega raises the sole issue for resolution by this Court, to wit: WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE REGIONAL TRIAL COURT INSPITE OF THE FACT THAT THE EVIDENCE ON RECORD COULD NOT SUPPORT CONVICTION. Accused-appellant Ortega prays for her acquittal and asks that the Court of Appeals Decision dated 27 October 2006 and Resolution dated 24 April 2007 be set aside. Maintaining her innocence, she contends that the penalty of eight (8) years is too stiff since it would deprive her of the right to apply for probation and will have the effect of orphaning her ten (10) children, the youngest being only three (3) years old. Ortega claims that the Court of Appeals gravely erred in convicting her of Estafa and admits that although her petition involves questions of fact, Philippine National Bank v. Court of Appeals10 held that this Court has authority to review and reverse factual findings of the lower court where the court a quos findings do not conform to the evidence on record. The prosecution maintains that it was able to prove accused-appellants guilt beyond reasonable doubt. The petition has no merit. Ortega claims that the prosecutions evidence does not support a finding of guilt beyond reasonable doubt. She denies the charges, countering that it was Adorable who visited her house asking for assistance regarding a certain property to be disposed of by Adorable to pay off debts to creditors. Under Article III, Section 14, paragraph 2, as provided under the Bill of Rights of the 1987 Philippine Constitution, a defendant in a criminal action shall be presumed innocent until the contrary is proved. This burden of proving an accuseds guilt beyond reasonable doubt belongs exclusively to the prosecution, and once there is reasonable doubt that an accuseds guilt has been satisfactorily shown, the accused shall be entitled to an acquittal. The petition being a petition for review, the jurisdiction of this Court is confined to reviewing questions of law.11 The issues ultimately focus on the credibility of witnesses and whether the evidence for the prosecution as opposed to petitioners alibi is sufficient to warrant petitioners conviction for commission of the crime of Estafa as alleged in the Information. The core issue being raised by accused-appellant is essentially a factual issue. It is well-settled in criminal jurisprudence that where the issue is one of credibility of witnesses, the appellate court will generally not disturb the findings of the trial court, considering it was in a better position to settle such issue.12 The issue concerning the credibility of witnesses has almost always been considered to be a matter that is best addressed to the sound judgment of the trial court. Its vantage point over that of an appellate court in that determination can hardly be doubted. Indeed, the trial court has the advantage of hearing the

witness and observing his conduct during trial, circumstances which carry a great weight in appreciating his credibility.13 The reason behind this policy is that it is a fundamental and settled rule that factual findings of the trial court and its calibration of the testimonies of the witnesses and its conclusions anchored on its findings are accorded by the appellate court high respect, if not conclusive effect, more so when affirmed by the Court of Appeals, which is the situation in the case at bar. Judicial experience has revealed that trial courts are in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial. It can thus more easily detect whether a witness is telling the truth or not. 14 Therefore, it is but proper that findings of facts and assessment of credibility of witnesses is a matter best left to the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses deportment on the stand while testifying, which opportunity is denied the appellate courts. Thus, the trial courts findings are accorded finality, unless there appears in the record some fact or circumstance of weight; which the lower court may have overlooked, misunderstood or misappreciated, and which, if properly considered, would alter the result of the case. The exception applies when it is established that the trial court ignored, overlooked, misconstrued or misinterpreted cogent facts and circumstances which, if considered, will change the outcome of the case. None of these exceptions are found in the case at bar. In reviewing the records, this Court has seen nothing to make a conclusion that the trial court has overlooked any fact of substance and value to warrant a reversal of its factual assessments. Ortegas denial is an intrinsically weak defense, which must be buttressed by strong evidence of non-culpability to merit credence. The defense failed to controvert the prosecutions strong and solid evidence proving Ortegas guilt beyond reasonable doubt. The testimony of complainant Adorable, corroborated by her co-teacher Laranjo and supported by documentary exhibits, satisfactorily and conclusively shows her culpability. Estafa committed thru False Pretenses is defined under Article 315, paragraph 2(a) of the Revised Penal Code. Under said provision, the offense is committed as follows: Article 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: xxxx 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of fraud: (a) by using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. From the foregoing, swindling or estafa by false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud is committed by "using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by other similar deceits."15 In order to sustain a charge and conviction under paragraph 2(a) of Article 315 of the Revised Penal Code, the prosecution must be able to prove beyond reasonable doubt the concurrence of the following elements: (1) the accused has defrauded another by abuse of confidence or by means of deceit; and

(2) damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.16 Fraud, in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. On the other hand, deceit is the false representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed; and which deceives or is intended to deceive another so that he shall act upon it, to his legal injury. From the preceding facts, it is evident that accused-appellant employed deceitful tactics to make Adorable part with her money in order to purchase the lot purportedly offered for sale by Ortega to the former. Ortegas act of misrepresenting herself as having the requisite authority to sell the alleged property belonging to Manuel Cabingatan set in motion a chain of events that led to the eventual parting of Adorable with her hard-earned money. Without the representation from petitioner that she was authorized to sell the property, Adorable would not have parted with her money to make advances for the payment of notarial documents, titling and other documentary fees necessary for the transfer of title of the said property from Manuel Cabingatan to her. Ortega could have simply returned the money wrongfully taken from Adorable after her failure to transfer the property, but instead denied receiving a single centavo from Adorable. We are not convinced by Ortegas insistence that the receipts in question were issued by her on behalf of Adorable, to assist in the processing of the latters debts in favor of her creditors. This feeble defense deserves scant consideration in light of the straightforward and convincing testimony of Adorable regarding the advances she made for the purchase of the property for which the said receipts were issued by accused-appellant. The same testimony was corroborated by Laranjo. Moreover, the prosecution presented documentary evidence to buttress the allegations of complainant. It was simply illogical for Adorable to make payments to Ortega, who is not really a creditor of Adorable, if we are going to accept the theory of Ortega. When Adorable started to doubt Ortegas representations, she asked her for the official receipts pertaining to the above advances. Instead of producing the official receipts, Ortega promised to give the tax declaration over the said property. Ortega thereafter presented Adorable with an alleged photocopy of Tax Declaration No. 97-GR07-050-00093 in the latters name. Upon verification with the City Assessors Office, Adorable realized that she was duped by Ortega and learned that said tax declaration was not in her name. Although Ortega promised that the genuine tax declaration would soon be issued in Adorables name, none was issued. Furthermore, the defense could have presented Ortegas daughter to testify in her defense but failed to do so. Finally, Ortega should be faulted for the non-presentation of defense witness Lila Chin. She was given several opportunities to present said witness, but failed to do so for the repeated failure of her counsel to appear. Finding that the prosecution has established accused-appellant Ortegas guilt beyond reasonable doubt for the crime of Estafa/Swindling thru False Pretenses, this Court shall now determine the proper penalties to be imposed. The penalty for estafa depends on the amount defrauded. Article 315 of the Revised Penal Code provides, to wit: Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by: 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over P12,000.00 but does not exceed P22,000.00 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period,

adding one year for each additional P10,000.00 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.17 (Emphasis supplied.) In addition to indemnifying Adorable in the sum of P27,450.00, the RTC of Cebu City sentenced Ortega to suffer an Indeterminate Penalty of 1 year 8 months and 21 days of prision correccional, as minimum, to 8 years of prision mayor, as maximum.18 Under the Indeterminate Sentence Law, if the offense is punished by the Revised Penal Code, such as estafa, the court shall sentence the accused to an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the Revised Penal Code; and the minimum term of which shall be within the range of the penalty next lower than that prescribed by the Code for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. Inasmuch as the amount of P27,450.00 is more than the benchmark of P22,000.00 provided under Article 315 of the Revised Penal Code, the maximum period of prision mayor minimum (6 years, 8 months and 21 days to 8 years) is applicable. Applying the Indeterminate Sentence Law, the minimum penalty is prision correccional in its minimum and medium periods, in any of its periods, the range of which is from six (6) months and one (1) day to four (4) years and two (2) months, which is the penalty next lower in degree than the basic penalty. The period of 1 year 8 months and 21 days of prision correccional, the minimum period imposed, is within this range. Finding no error in the computation and application of the Indeterminate Sentence Law by the RTC, we sustain the indeterminate penalty imposed by the court a quo. Ortega bewails the penalty of eight (8) years, claiming it is simply too harsh, considering the amount involved. Ortega pleads that this penalty will make her ineligible for probation and will have the effect of having her ten (10) children, the youngest being only three (3) years old, orphaned. We are aware of Ortegas extreme predicament, but this Court has no alternative but to apply the law. As harsh and as painful its effects may be, dura lex, sed lex. The law is harsh, but it is the law. WHEREFORE, premises considered, the petition for review is hereby DENIED. The Decision of the Court of Appeals in CA-G.R. 00241, which sustained the conviction of accused-appellant Judith P. Ortega for the crime of Estafa in Criminal Case No. CBU-53833, is hereby AFFIRMED. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice