G.R. No.

L-5272

March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case
is limited to the testimony of the accused himself, because from
the very nature of these facts and from the circumstances
surrounding the incident upon which these proceedings rest, no
other evidence as to these facts was available either to the
prosecution or to the defense. We think, however, that, giving the
accused the benefit of the doubt as to the weight of the evidence
touching those details of the incident as to which there can be said
to be any doubt, the following statement of the material facts
disclose by the record may be taken to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers'
quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same
place Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house
situates some 40 meters from the nearest building, and in August,
19087, was occupied solely as an officers' mess or club. No one
slept in the house except the two servants, who jointly occupied a
small room toward the rear of the building, the door of which
opened upon a narrow porch running along the side of the building,
by which communication was had with the other part of the house.
This porch was covered by a heavy growth of vines for its entire
length and height. The door of the room was not furnished with a
permanent bolt or lock, and occupants, as a measure of security,
had attached a small hook or catch on the inside of the door, and
were in the habit of reinforcing this somewhat insecure means of
fastening the door by placing against it a chair. In the room there
was but one small window, which, like the door, opened on the
porch. Aside from the door and window, there were no other
openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the
defendant, who had received for the night, was suddenly awakened
by some trying to force open the door of the room. He sat up in bed
and called out twice, "Who is there?" He heard no answer and was
convinced by the noise at the door that it was being pushed open
by someone bent upon forcing his way into the room. Due to the

heavy growth of vines along the front of the porch, the room was
very dark, and the defendant, fearing that the intruder was a
robber or a thief, leaped to his feet and called out. "If you enter the
room, I will kill you." At that moment he was struck just above the
knee by the edge of the chair which had been placed against the
door. In the darkness and confusion the defendant thought that the
blow had been inflicted by the person who had forced the door
open, whom he supposed to be a burglar, though in the light of
after events, it is probable that the chair was merely thrown back
into the room by the sudden opening of the door against which it
rested. Seizing a common kitchen knife which he kept under his
pillow, the defendant struck out wildly at the intruder who, it
afterwards turned out, was his roommate, Pascual. Pascual ran out
upon the porch and fell down on the steps in a desperately
wounded condition, followed by the defendant, who immediately
recognized him in the moonlight. Seeing that Pascual was
wounded, he called to his employers who slept in the next house,
No. 28, and ran back to his room to secure bandages to bind up
Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to
the date of the incident just described, one of which took place in a
house in which the defendant was employed as cook; and as
defendant alleges, it was because of these repeated robberies he
kept a knife under his pillow for his personal protection.
The deceased and the accused, who roomed together and who
appear to have on friendly and amicable terms prior to the fatal
incident, had an understanding that when either returned at night,
he should knock at the door and acquiant his companion with his
identity. Pascual had left the house early in the evening and gone
for a walk with his friends, Celestino Quiambao and Mariano Ibaez,
servants employed at officers' quarters No. 28, the nearest house
to the mess hall. The three returned from their walk at about 10
o'clock, and Celestino and Mariano stopped at their room at No. 28,
Pascual going on to his room at No. 27. A few moments after the
party separated, Celestino and Mariano heard cries for assistance
and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran
back to No. 28 and called Liuetenants Jacobs and Healy, who
immediately went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his
roommate, but said that he did it under the impression that Pascual

was "a ladron" because he forced open the door of their sleeping
room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of
Pascuals suggests itself, unless it be that the boy in a spirit of
mischief was playing a trick on his Chinese roommate, and sought
to frightened him by forcing his way into the room, refusing to give
his name or say who he was, in order to make Ah Chong believe
that he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was
conveyed to the military hospital, where he died from the effects of
the wound on the following day.
The defendant was charged with the crime of assassination, tried,
and found guilty by the trial court of simple homicide, with
extenuating circumstances, and sentenced to six years and one
day presidio mayor, the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed
his roommate, Pascual Gualberto, but insisted that he struck the
fatal blow without any intent to do a wrongful act, in the exercise of
his lawful right of self-defense.
Article 8 of the Penal Code provides that
The following are not delinquent and are therefore exempt
from criminal liability:
xxx

xxx

xxx

4 He who acts in defense of his person or rights, provided

there are the following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent
or repel it.
(3) Lack of sufficient provocation on the part of the person
defending himself.

Under these provisions we think that there can be no doubt that

defendant would be entitle to complete exception from criminal
liability for the death of the victim of his fatal blow, if the intruder
who forced open the door of his room had been in fact a dangerous
thief or "ladron," as the defendant believed him to be. No one,
under such circumstances, would doubt the right of the defendant
to resist and repel such an intrusion, and the thief having forced
open the door notwithstanding defendant's thrice-repeated warning
to desist, and his threat that he would kill the intruder if he
persisted in his attempt, it will not be questioned that in the
darkness of the night, in a small room, with no means of escape,
with the thief advancing upon him despite his warnings defendant
would have been wholly justified in using any available weapon to
defend himself from such an assault, and in striking promptly,
without waiting for the thief to discover his whereabouts and
deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief
or a "ladron." That neither the defendant nor his property nor any
of the property under his charge was in real danger at the time
when he struck the fatal blow. That there was no such "unlawful
aggression" on the part of a thief or "ladron" as defendant believed
he was repelling and resisting, and that there was no real
"necessity" for the use of the knife to defend his person or his
property or the property under his charge.
The question then squarely presents it self, whether in this
jurisdiction one can be held criminally responsible who, by reason
of a mistake as to the facts, does an act for which he would be
exempt from criminal liability if the facts were as he supposed them
to be, but which would constitute the crime of homicide or
assassination if the actor had known the true state of the facts at
the time when he committed the act. To this question we think
there can be but one answer, and we hold that under such
circumstances there is no criminal liability, provided always that
the alleged ignorance or mistake or fact was not due to negligence
or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or
mistake of fact is sufficient to negative a particular intent which
under the law is a necessary ingredient of the offense charged
(e.g., in larcerny, animus furendi; in murder, malice; in crimes
intent) "cancels the presumption of intent," and works an acquittal;
except in those cases where the circumstances demand a
conviction under the penal provisions touching criminal negligence;

and in cases where, under the provisions of article 1 of the Penal

Code one voluntarily committing a crime or misdeamor incurs
criminal liability for any wrongful act committed by him, even
though it be different from that which he intended to commit.
(Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim.
Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240;
Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y.,
509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7
Met., 500.)

proportion to the harm which is done by the crime, the

consequence is that the guilt of the crime follows the same
proportion; it is greater or less according as the crime in its own
nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it
has been otherwise stated, the thing done, having proceeded from
a corrupt mid, is to be viewed the same whether the corruption was
of one particular form or another.

The general proposition thus stated hardly admits of discussion,

and the only question worthy of consideration is whether malice or
criminal intent is an essential element or ingredient of the crimes of
homicide and assassination as defined and penalized in the Penal
Code. It has been said that since the definitions there given of
these as well as most other crimes and offense therein defined, do
not specifically and expressly declare that the acts constituting the
crime or offense must be committed with malice or with criminal
intent in order that the actor may be held criminally liable, the
commission of the acts set out in the various definitions subjects
the actor to the penalties described therein, unless it appears that
he is exempted from liability under one or other of the express
provisions of article 8 of the code, which treats of exemption. But
while it is true that contrary to the general rule of legislative
enactment in the United States, the definitions of crimes and
offenses as set out in the Penal Code rarely contain provisions
expressly declaring that malice or criminal intent is an essential
ingredient of the crime, nevertheless, the general provisions of
article 1 of the code clearly indicate that malice, or criminal intent
in some form, is an essential requisite of all crimes and offense
therein defined, in the absence of express provisions modifying the
general rule, such as are those touching liability resulting from acts
negligently or imprudently committed, and acts done by one
voluntarily committing a crime or misdemeanor, where the act
committed is different from that which he intended to commit. And
it is to be observed that even these exceptions are more apparent
than real, for "There is little distinction, except in degree, between
a will to do a wrongful thing and indifference whether it is done or
not. Therefore carelessness is criminal, and within limits supplies
the place of the affirmative criminal intent" (Bishop's New Criminal
Law, vol. 1, s. 313); and, again, "There is so little difference
between a disposition to do a great harm and a disposition to do
harm that one of them may very well be looked upon as the
measure of the other. Since, therefore, the guilt of a crime consists
in the disposition to do harm, which the criminal shows by
committing it, and since this disposition is greater or less in

Crimes or misdemeanors are voluntary acts and ommissions

punished by law.

Article 1 of the Penal Code is as follows:

Acts and omissions punished by law are always presumed to

be voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor
shall incur criminal liability, even though the wrongful act
committed be different from that which he had intended to
commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of
the word "voluntary" as used in this article, say that a voluntary act
is a free, intelligent, and intentional act, and roundly asserts that
without intention (intention to do wrong or criminal intention) there
can be no crime; and that the word "voluntary" implies and
includes the words "con malicia," which were expressly set out in
the definition of the word "crime" in the code of 1822, but omitted
from the code of 1870, because, as Pacheco insists, their use in the
former code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the
crime can only be said to exempt from criminal responsibility when
the act which was actually intended to be done was in itself a
lawful one, and in the absence of negligence or imprudence,
nevertheless admits and recognizes in his discussion of the
provisions of this article of the code that in general without
intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we
have shown above, the exceptions insisted upon by Viada are more
apparent than real.
Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which

declared that where there is no intention there is no crime . .
. in order to affirm, without fear of mistake, that under our
code there can be no crime if there is no act, an act which
must fall within the sphere of ethics if there is no moral
injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court
of Spain, as, for example in its sentence of May 31, 1882, in which
it made use of the following language:
It is necessary that this act, in order to constitute a crime,
involve all the malice which is supposed from the operation
of the will and an intent to cause the injury which may be
the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that
"considering that, whatever may be the civil effects of the
inscription of his three sons, made by the appellant in the civil
registry and in the parochial church, there can be no crime because
of the lack of the necessary element or criminal intention, which
characterizes every action or ommission punished by law; nor is he
guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it
made use of the following language:
. . . Considering that the moral element of the crime, that is,
intent or malice or their absence in the commission of an act
defined and punished by law as criminal, is not a necessary
question of fact submitted to the exclusive judgment and
decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice
to be an essential element of the various crimes and misdemeanors
therein defined becomes clear also from an examination of the
provisions of article 568, which are as follows:
He who shall execute through reckless negligence an act
that, if done with malice, would constitute a grave crime,
shall be punished with the penalty of arresto mayor in its
maximum degree, to prision correccional in its minimum
degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime

through simple imprudence or negligence shall incur the
penalty of arresto mayor in its medium and maximum
degrees.
In the application of these penalties the courts shall proceed
according to their discretion, without being subject to the
rules prescribed in article 81.
The provisions of this article shall not be applicable if the
penalty prescribed for the crime is equal to or less than
those contained in the first paragraph thereof, in which case
the courts shall apply the next one thereto in the degree
which they may consider proper.
The word "malice" in this article is manifestly substantially
equivalent to the words "criminal intent," and the direct inference
from its provisions is that the commission of the acts contemplated
therein, in the absence of malice (criminal intent), negligence, and
imprudence, does not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would
seem to approximate in meaning the word "willful" as used in
English and American statute to designate a form of criminal intent.
It has been said that while the word "willful" sometimes means little
more than intentionally or designedly, yet it is more frequently
understood to extent a little further and approximate the idea of
the milder kind of legal malice; that is, it signifies an evil intent
without justifiable excuse. In one case it was said to mean, as
employed in a statute in contemplation, "wantonly" or
"causelessly;" in another, "without reasonable grounds to believe
the thing lawful." And Shaw, C. J., once said that ordinarily in a
statute it means "not merely `voluntarily' but with a bad purpose;
in other words, corruptly." In English and the American statutes
defining crimes "malice," "malicious," "maliciously," and "malice
aforethought" are words indicating intent, more purely technical
than "willful" or willfully," but "the difference between them is not
great;" the word "malice" not often being understood to require
general malevolence toward a particular individual, and signifying
rather the intent from our legal justification. (Bishop's New Criminal
Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a
condition in the definition of a crime that it be committed
"voluntarily," willfully," "maliciously" "with malice aforethought," or

in one of the various modes generally construed to imply a criminal

intent, we think that reasoning from general principles it will always
be found that with the rare exceptions hereinafter mentioned, to
constitute a crime evil intent must combine with an act. Mr. Bishop,
who supports his position with numerous citations from the decided
cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from
civil than in the rule as to the intent. In controversies
between private parties the quo animo with which a thing
was done is sometimes important, not always; but crime
proceeds only from a criminal mind. So that
There can be no crime, large or small, without an evil mind.
In other words, punishment is the sentence of wickedness,
without which it can not be. And neither in philosophical
speculation nor in religious or mortal sentiment would any
people in any age allow that a man should be deemed guilty
unless his mind was so. It is therefore a principle of our legal
system, as probably it is of every other, that the essence of
an offense is the wrongful intent, without which it can not
exists. We find this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally
with the modern, is distinct on this subject. It consequently
has supplied to us such maxims as Actus non facit reum nisi
mens sit rea, "the act itself does not make man guilty unless
his intention were so;" Actus me incito factus non est meus
actus, "an act done by me against my will is not my act;"
and others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also
Moral science and moral sentiment teach the same thing.
"By reference to the intention, we inculpate or exculpate
others or ourselves without any respect to the happiness or
misery actually produced. Let the result of an action be what
it may, we hold a man guilty simply on the ground of
intention; or, on the dame ground, we hold him innocent."
The calm judgment of mankind keeps this doctrine among
its jewels. In times of excitement, when vengeance takes
the place of justice, every guard around the innocent is cast
down. But with the return of reason comes the public voice
that where the mind is pure, he who differs in act from his
neighbors does not offend. And

In the spontaneous judgment which springs from the nature

given by God to man, no one deems another to deserve
punishment for what he did from an upright mind, destitute
of every form of evil. And whenever a person is made to
suffer a punishment which the community deems not his
due, so far from its placing an evil mark upon him, it
elevates him to the seat of the martyr. Even infancy itself
spontaneously pleads the want of bad intent in justification
of what has the appearance of wrong, with the utmost
confidence that the plea, if its truth is credited, will be
accepted as good. Now these facts are only the voice of
nature uttering one of her immutable truths. It is, then, the
doctrine of the law, superior to all other doctrines, because
first in nature from which the law itself proceeds, that no
man is to be punished as a criminal unless his intent is
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an
apparent departure from this doctrine of abstract justice result from
the adoption of the arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"), without which
justice could not be administered in our tribunals; and compelled
also by the same doctrine of necessity, the courts have recognized
the power of the legislature to forbid, in a limited class of cases, the
doing of certain acts, and to make their commission criminal
without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the
courts have always held that unless the intention of the lawmaker
to make the commission of certain acts criminal without regard to
the intent of the doer is clear and beyond question the statute will
not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76
and 77); and the rule that ignorance of the law excuses no man has
been said not to be a real departure from the law's fundamental
principle that crime exists only where the mind is at fault, because
"the evil purpose need not be to break the law, and if suffices if it is
simply to do the thing which the law in fact forbids." (Bishop's New
Criminal Law, sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no
pressing necessity therefore, requiring mistake in fact to be dealt
with otherwise that in strict accord with the principles of abstract
justice. On the contrary, the maxim here is Ignorantia facti
excusat ("Ignorance or mistake in point of fact is, in all cases of
supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed.,
190.)

Since evil intent is in general an inseparable element in every

crime, any such mistake of fact as shows the act committed to
have proceeded from no sort of evil in the mind necessarily relieves
the actor from criminal liability provided always there is no fault or
negligence on his part; and as laid down by Baron Parke, "The guilt
of the accused must depend on the circumstances as they appear
to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs.Anderson, 44 Cal..,
65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509;
Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41;
P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That
is to say, the question as to whether he honestly, in good faith, and
without fault or negligence fell into the mistake is to be determined
by the circumstances as they appeared to him at the time when the
mistake was made, and the effect which the surrounding
circumstances might reasonably be expected to have on his mind,
in forming the intent, criminal or other wise, upon which he acted.
If, in language not uncommon in the cases, one
has reasonable cause to believe the existence of facts which
will justify a killing or, in terms more nicely in accord with
the principles on which the rule is founded, if without fault
or carelessness he does believe them he is legally
guiltless of the homicide; though he mistook the facts, and
so the life of an innocent person is unfortunately
extinguished. In other words, and with reference to the right
of self-defense and the not quite harmonious authorities, it
is the doctrine of reason and sufficiently sustained in
adjudication,
that
notwithstanding
some
decisions
apparently adverse, whenever a man undertakes selfdefense, he is justified in acting on the facts as they appear
to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according to
what he thus supposes the facts to be the law will not
punish him though they are in truth otherwise, and he was
really no occassion for the extreme measures. (Bishop's New
Criminal Law, sec. 305, and large array of cases there cited.)
The common illustration in the American and English textbooks of
the application of this rule is the case where a man, masked and
disguised as a footpad, at night and on a lonely road, "holds up" his
friends in a spirit of mischief, and with leveled pistol demands his
money or his life, but is killed by his friend under the mistaken
belief that the attack is a real one, that the pistol leveled at his
head is loaded, and that his life and property are in imminent
danger at the hands of the aggressor. No one will doubt that if the

facts were such as the slayer believed them to be he would be

innocent of the commission of any crime and wholly exempt from
criminal liability, although if he knew the real state of the facts
when he took the life of his friend he would undoubtedly be guilty
of the crime of homicide or assassination. Under such
circumstances, proof of his innocent mistake of the facts overcomes
the presumption of malice or criminal intent, and (since malice or
criminal intent is a necessary ingredient of the "act punished by
law" in cases of homicide or assassination) overcomes at the same
time the presumption established in article 1 of the code, that the
"act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that
the person slain had a felonious design against him, and
under that supposition killed him, although it should
afterwards appear that there was no such design, it will not
be murder, but it will be either manslaughter or excusable
homicide, according to the degree of caution used and the
probable grounds of such belief. (Charge to the grand jury in
Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of
the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine
as follows:
A, in the peaceable pursuit of his affairs, sees B rushing
rapidly toward him, with an outstretched arms and a pistol
in his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same
attitude, A, who has a club in his hand, strikes B over the
head before or at the instant the pistol is discharged; and of
the wound B dies. It turns out the pistol was loaded
with powder only, and that the real design of B was only
to terrify A. Will any reasonable man say that A is more
criminal that he would have been if there had been a bullet
in the pistol? Those who hold such doctrine must require
that a man so attacked must, before he strikes the assailant,
stop and ascertain how the pistol is loaded a doctrine
which would entirely take away the essential right of selfdefense. And when it is considered that the jury who try the
cause, and not the party killing, are to judge of the
reasonable grounds of his apprehension, no danger can be
supposed to flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of

Spain, cited by Viada, a few of which are here set out in full
because the facts are somewhat analogous to those in the case at
bar.
QUESTION III. When it is shown that the accused was sitting
at his hearth, at night, in company only of his wife, without
other light than reflected from the fire, and that the man
with his back to the door was attending to the fire, there
suddenly entered a person whom he did not see or know,
who struck him one or two blows, producing a contusion on
the shoulder, because of which he turned, seized the person
and took from his the stick with which he had undoubtedly
been struck, and gave the unknown person a blow, knocking
him to the floor, and afterwards striking him another blow
on the head, leaving the unknown lying on the floor, and left
the house. It turned out the unknown person was his fatherin-law, to whom he rendered assistance as soon as he
learned his identity, and who died in about six days in
consequence of cerebral congestion resulting from the blow.
The accused, who confessed the facts, had always sustained
pleasant relations with his father-in-law, whom he visited
during his sickness, demonstrating great grief over the
occurrence. Shall he be considered free from criminal
responsibility, as having acted in self-defense, with all the
circumstances related in paragraph 4, article 8, of the Penal
Code? The criminal branch of the Audiencia of Valladolid
found that he was an illegal aggressor, without sufficient
provocation, and that there did not exists rational necessity
for the employment of the force used, and in accordance
with articles 419 and 87 of the Penal Code condemned him
to twenty months of imprisonment, with accessory penalty
and costs. Upon appeal by the accused, he was acquitted by
the supreme court, under the following sentence:
"Considering, from the facts found by the sentence to have
been proven, that the accused was surprised from behind,
at night, in his house beside his wife who was nursing her
child, was attacked, struck, and beaten, without being able
to distinguish with which they might have executed their
criminal intent, because of the there was no other than fire
light in the room, and considering that in such a situation
and when the acts executed demonstrated that they might
endanger his existence, and possibly that of his wife and
child, more especially because his assailant was unknown,
he should have defended himself, and in doing so with the
same stick with which he was attacked, he did not exceed

the limits of self-defense, nor did he use means which were

not rationally necessary, particularly because the
instrument with which he killed was the one which he took
from his assailant, and was capable of producing death, and
in the darkness of the house and the consteration which
naturally resulted from such strong aggression, it was not
given him to known or distinguish whether there was one or
more assailants, nor the arms which they might bear, not
that which they might accomplish, and considering that the
lower court did not find from the accepted facts that there
existed rational necessity for the means employed, and that
it did not apply paragraph 4 of article 8 of the Penal Code, it
erred, etc." (Sentence of supreme court of Spain, February
28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house,
which was situated in a retired part of the city, upon arriving
at a point where there was no light, heard the voice of a
man, at a distance of some 8 paces, saying: "Face down,
hand over you money!" because of which, and almost at the
same money, he fired two shots from his pistol,
distinguishing immediately the voice of one of his friends
(who had before simulated a different voice) saying, "Oh!
they have killed me," and hastening to his assistance,
finding the body lying upon the ground, he cried, "Miguel,
Miguel, speak, for God's sake, or I am ruined," realizing that
he had been the victim of a joke, and not receiving a reply,
and observing that his friend was a corpse, he retired from
the place. Shall he be declared exempt in toto from
responsibility as the author of this homicide, as having acted
in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of
the Audiencia of Malaga did not so find, but only found in
favor of the accused two of the requisites of said article, but
not that of the reasonableness of the means employed to
repel the attack, and, therefore, condemned the accused to
eight years and one day of prison mayor, etc. The supreme
court acquitted the accused on his appeal from this
sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of
the person calling to him, and that under the circumstances,
the darkness and remoteness, etc., the means employed
were rational and the shooting justifiable. (Sentence
supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot,

is awakened, at night, by a large stone thrown against his
window at this, he puts his head out of the window and
inquires what is wanted, and is answered "the delivery of all
of his money, otherwise his house would be burned"
because of which, and observing in an alley adjacent to the
mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one the men, who, on the
next morning was found dead on the same spot. Shall this
man be declared exempt from criminal responsibility as
having acted in just self-defense with all of the requisites of
law? The criminal branch of the requisites of law? The
criminal branch of the Audiencia of Zaragoza finds that
there existed in favor of the accused a majority of the
requisites to exempt him from criminal responsibility, but
not that of reasonable necessity for the means, employed,
and condemned the accused to twelve months of prision
correctional for the homicide committed. Upon appeal, the
supreme court acquitted the condemned, finding that the
accused, in firing at the malefactors, who attack his mill at
night in a remote spot by threatening robbery and
incendiarism, was acting in just self-defense of his person,
property, and family. (Sentence of May 23, 1877). (I Viada,
p. 128.)

with which he is charged and his bail bond exonerated, with the
costs of both instance de oficio. So ordered.

A careful examination of the facts as disclosed in the case at bar

convinces us that the defendant Chinaman struck the fatal blow
alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose
assault he was in imminent peril, both of his life and of his property
and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the
defendant at the time, he acted in good faith, without malice, or
criminal intent, in the belief that he was doing no more than
exercising his legitimate right of self-defense; that had the facts
been as he believed them to be he would have been wholly exempt
from criminal liability on account of his act; and that he can not be
said to have been guilty of negligence or recklessness or even
carelessness in falling into his mistake as to the facts, or in the
means adopted by him to defend himself from the imminent
danger which he believe threatened his person and his property
and the property under his charge.
The judgment of conviction and the sentence imposed by the trial
court should be reversed, and the defendant acquitted of the crime

G.R. No. L-47722

July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendantsappellants.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the
accused Antonio Z. Oanis and Alberto Galanta, chief of police of
Cabanatuan and corporal of the Philippine Constabulary,
respectively, were, after due trial, found guilty by the lower court of
homicide through reckless imprudence and were sentenced each to
an indeterminate penalty of from one year and six months to two
years and two months of prison correccional and to indemnify
jointly and severally the heirs of the deceased in the amount of
P1,000. Defendants appealed separately from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod,
Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija,
received from Major Guido a telegram of the following tenor:
"Information received escaped convict Anselmo Balagtas
with bailarina and Irene in Cabanatuan get him dead or alive."
Captain Monsod accordingly called for his first sergeant and asked
that he be given four men. Defendant corporal Alberto Galanta, and
privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon
order of their sergeant, reported at the office of the Provincial
Inspector where they were shown a copy of the above-quoted
telegram and a newspaper clipping containing a picture of
Balagtas. They were instructed to arrest Balagtas and, if
overpowered, to follow the instruction contained in the telegram.
The same instruction was given to the chief of police Oanis who
was likewise called by the Provincial Inspector. When the chief of
police was asked whether he knew one Irene, a bailarina, he
answered that he knew one of loose morals of the same name.
Upon request of the Provincial Inspector, the chief of police tried to
locate some of his men to guide the constabulary soldiers in
ascertaining Balagtas' whereabouts, and failing to see anyone of
them he volunteered to go with the party. The Provincial Inspector
divided the party into two groups with defendants Oanis and
Galanta, and private Fernandez taking the route to Rizal street
leading to the house where Irene was supposedly living. When this
group arrived at Irene's house, Oanis approached one Brigida
Mallare, who was then stripping banana stalks, and asked her
where Irene's room was. Brigida indicated the place and upon
further inquiry also said that Irene was sleeping with her paramour.

Brigida trembling, immediately returned to her own room which

was very near that occupied by Irene and her paramour.
Defendants Oanis and Galanta then went to the room of Irene, and
an seeing a man sleeping with his back towards the door where
they were, simultaneously or successively fired at him with their .
32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw
her paramour already wounded, and looking at the door where the
shots came, she saw the defendants still firing at him. Shocked by
the entire scene. Irene fainted; it turned out later that the person
shot and killed was not the notorious criminal Anselmo Balagtas but
a peaceful and innocent citizen named Serapio Tecson, Irene's
paramour. The Provincial Inspector, informed of the killing, repaired
to the scene and when he asked as to who killed the deceased.
Galanta, referring to himself and to Oanis, answered: "We two, sir."
The corpse was thereafter brought to the provincial hospital and
upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds
inflicted by a .32 and a .45 caliber revolvers were found on Tecson's
body which caused his death.
These are the facts as found by the trial court and fully supported
by the evidence, particularly by the testimony of Irene Requinea.
Appellants gave, however, a different version of the tragedy.
According to Appellant Galanta, when he and chief of police Oanis
arrived at the house, the latter asked Brigida where Irene's room
was. Brigida indicated the place, and upon further inquiry as to the
whereabouts of Anselmo Balagtas, she said that he too was
sleeping in the same room. Oanis went to the room thus indicated
and upon opening the curtain covering the door, he said: "If you are
Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke
up and as the former was about to sit up in bed. Oanis fired at him.
Wounded, Tecson leaned towards the door, and Oanis receded and
shouted: "That is Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the
curtain covering the door and after having said, "if you are Balagtas
stand up." Galanta at once fired at Tecson, the supposed Balagtas,
while the latter was still lying on bed, and continued firing until he
had exhausted his bullets: that it was only thereafter that he,
Oanis, entered the door and upon seeing the supposed Balagtas,
who was then apparently watching and picking up something from
the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies
are certainly incredible not only because they are vitiated by a
natural urge to exculpate themselves of the crime, but also

because they are materially contradictory. Oasis averred that be

fired at Tecson when the latter was apparently watching somebody
in an attitudes of picking up something from the floor; on the other
hand, Galanta testified that Oasis shot Tecson while the latter was
about to sit up in bed immediately after he was awakened by a
noise. Galanta testified that he fired at Tecson, the supposed
Balagtas, when the latter was rushing at him. But Oanis assured
that when Galanta shot Tecson, the latter was still lying on bed. It is
apparent from these contradictions that when each of the
appellants tries to exculpate himself of the crime charged, he is at
once belied by the other; but their mutual incriminating averments
dovetail with and corroborate substantially, the testimony of Irene
Requinea. It should be recalled that, according to Requinea, Tecson
was still sleeping in bed when he was shot to death by appellants.
And this, to a certain extent, is confirmed by both appellants
themselves in their mutual recriminations. According, to Galanta,
Oanis shot Tecson when the latter was still in bed about to sit up
just after he was awakened by a noise. And Oanis assured that
when Galanta shot Tecson, the latter was still lying in bed. Thus
corroborated, and considering that the trial court had the
opportunity to observe her demeanor on the stand, we believe and
so hold that no error was committed in accepting her testimony
and in rejecting the exculpatory pretensions of the two appellants.
Furthermore, a careful examination of Irene's testimony will show
not only that her version of the tragedy is not concocted but that it
contains all indicia of veracity. In her cross-examination, even
misleading questions had been put which were unsuccessful, the
witness having stuck to the truth in every detail of the occurrence.
Under these circumstances, we do not feel ourselves justified in
disturbing the findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was
sleeping in his room with his back towards the door, Oanis and
Galanta, on sight, fired at him simultaneously or successively,
believing him to be Anselmo Balagtas but without having made
previously any reasonable inquiry as to his identity. And the
question is whether or not they may, upon such fact, be held
responsible for the death thus caused to Tecson. It is contended
that, as appellants acted in innocent mistake of fact in the honest
performance of their official duties, both of them believing that
Tecson was Balagtas, they incur no criminal liability. Sustaining this
theory in part, the lower court held and so declared them guilty of
the crime of homicide through reckless imprudence. We are of the
opinion, however, that, under the circumstances of the case, the
crime committed by appellants is murder through specially
mitigated by circumstances to be mentioned below.

In support of the theory of non-liability by reasons of honest

mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15
Phil., 488. The maxim is ignorantia facti excusat, but this applies
only when the mistake is committed without fault or carelessness.
In the Ah Chong case, defendant therein after having gone to bed
was awakened by someone trying to open the door. He called out
twice, "who is there," but received no answer. Fearing that the
intruder was a robber, he leaped from his bed and called out again.,
"If you enter the room I will kill you." But at that precise moment,
he was struck by a chair which had been placed against the door
and believing that he was then being attacked, he seized a kitchen
knife and struck and fatally wounded the intruder who turned out to
be his room-mate. A common illustration of innocent mistake of fact
is the case of a man who was marked as a footpad at night and in a
lonely road held up a friend in a spirit of mischief, and with leveled,
pistol demanded his money or life. He was killed by his friend under
the mistaken belief that the attack was real, that the pistol leveled
at his head was loaded and that his life and property were in
imminent danger at the hands of the aggressor. In these instances,
there is an innocent mistake of fact committed without any fault or
carelessness because the accused, having no time or opportunity
to make a further inquiry, and being pressed by circumstances to
act immediately, had no alternative but to take the facts as they
then appeared to him, and such facts justified his act of killing. In
the instant case, appellants, unlike the accused in the instances
cited, found no circumstances whatsoever which would press them
to immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his identity
without hazard to themselves, and could even effect a bloodless
arrest if any reasonable effort to that end had been made, as the
victim was unarmed, according to Irene Requinea. This, indeed, is
the only legitimate course of action for appellants to follow even if
the victim was really Balagtas, as they were instructed not to kill
Balagtas at sight but to arrest him, and to get him dead or alive
only if resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using
such force as is reasonably necessary to secure and detain the
offender, overcome his resistance, prevent his escape, recapture
him if he escapes, and protect himself from bodily harm
(People vs. Delima, 46 Phil, 738), yet he is never justified in using
unnecessary force or in treating him with wanton violence, or in
resorting to dangerous means when the arrest could be effected
otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the
new Rules of Court thus: "No unnecessary or unreasonable force
shall be used in making an arrest, and the person arrested shall not

be subject to any greater restraint than is necessary for his

detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot
claim exemption from criminal liability if he uses unnecessary force
or violence in making an arrest (5 C.J., p. 753; U.S.vs. Mendoza, 2
Phil., 109). It may be true that Anselmo Balagtas was a notorious
criminal, a life-termer, a fugitive from justice and a menace to the
peace of the community, but these facts alone constitute no
justification for killing him when in effecting his arrest, he offers no
resistance or in fact no resistance can be offered, as when he is
asleep. This, in effect, is the principle laid down, although upon
different facts, in U.S. vs. Donoso (3 Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken
by storm" without regard to his right to life which he has by such
notoriety already forfeited. We may approve of this standard of
official conduct where the criminal offers resistance or does
something which places his captors in danger of imminent attack.
Otherwise we cannot see how, as in the present case, the mere fact
of notoriety can make the life of a criminal a mere trifle in the
hands of the officers of the law. Notoriety rightly supplies a basis
for redoubled official alertness and vigilance; it never can justify
precipitate action at the cost of human life. Where, as here, the
precipitate action of the appellants has cost an innocent life and
there exist no circumstances whatsoever to warrant action of such
character in the mind of a reasonably prudent man, condemnation
not condonation should be the rule; otherwise we should offer
a premium to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal
negligence, the killing being intentional and not accidental. In
criminal negligence, the injury caused to another should be
unintentional, it being simply the incident of another act performed
without malice. (People vs. Sara, 55 Phil., 939). In the words of
Viada, "para que se celifique un hecho de imprudencia es preciso
que no haya mediado en el malicia ni intencion alguna de daar;
existiendo esa intencion, debera calificarse el hecho del delito que
ha producido, por mas que no haya sido la intencion del agente el
causar un mal de tanta gravedad como el que se produjo." (Tomo 7,
Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held
by this Court, a deliberate intent to do an unlawful act is essentially
inconsistent
with
the
idea
of
reckless
imprudence
(People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16),
and where such unlawful act is wilfully done, a mistake in the
identity of the intended victim cannot be considered as reckless

imprudence (People vs. Gona, 54 Phil., 605) to support a plea of

mitigated liability.
As the deceased was killed while asleep, the crime committed is
murder with the qualifying circumstance ofalevosia. There is,
however, a mitigating circumstance of weight consisting in the
incomplete justifying circumstance defined in article 11, No. 5, of
the Revised Penal Code. According to such legal provision, a person
incurs no criminal liability when he acts in the fulfillment of a duty
or in the lawful exercise of a right or office. There are two requisites
in order that the circumstance may be taken as a justifying one: (a)
that the offender acted in the performance of a duty or in the lawful
exercise of a right; and (b) that the injury or offense committed be
the necessary consequence of the due performance of such duty or
the lawful exercise of such right or office. In the instance case, only
the first requisite is present appellants have acted in the
performance of a duty. The second requisite is wanting for the
crime by them committed is not the necessary consequence of a
due performance of their duty. Their duty was to arrest Balagtas or
to get him dead or alive if resistance is offered by him and they are
overpowered. But through impatience or over-anxiety or in their
desire to take no chances, they have exceeded in the fulfillment of
such duty by killing the person whom they believed to be Balagtas
without any resistance from him and without making any previous
inquiry as to his identity. According to article 69 of the Revised
Penal Code, the penalty lower by one or two degrees than that
prescribed by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are
hereby declared guilty of murder with the mitigating circumstance
above mentioned, and accordingly sentenced to an indeterminate
penalty of from five (5) years of prision correctional to fifteen (15)
years of reclusion temporal, with the accessories of the law, and to
pay the heirs of the deceased Serapio Tecson jointly and severally
an indemnity of P2,000, with costs.

The undersigned accuses Rafael Balmores y Caya of

attempted estafa through falsification of a security,
committed as follows:

G.R. No. L-1896

February 16, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAFAEL BALMORES Y CAYA, defendant-appellant.
OZAETA, J.:
Appellant, waiving the right to be assisted by counsel, pleaded
guilty to the following information filed against him in the Court of
First Instance of Manila:

That on or about the 22nd day of September, 1947, in the

City of Manila, Philippines, the said accused did then and
there wilfully, unlawfully and feloniously commence the
commission of the crime of estafa through falsification of a
security directly by overt acts, to wit; by then and there
tearing off at the bottom in a cross-wise direction a portion
of a genuine 1/8 unit Philippine Charity Sweepstakes ticket
thereby removing the true and real unidentified number of
same and substituting and writing in ink at the bottom on
the left side of said ticket the figure or number 074000 thus
making the said ticket bear the said number 074000, which
is a prize-winning number in the Philippine Charity
Sweepstakes draw last June 29, 1947, and presenting the
said ticket so falsified on said date, September 22, 1947, in
the Philippine Charity Sweepstakes Office for the purpose of
exchanging the same for the corresponding cash that said
number has won, fraudulently pretending in said office that
the said 1/8 unit of a Philippine Charity Sweepstakes ticket is
genuine and that he is entitled to the corresponding amount
of P359.55 so won by said ticket in the Philippine Charity
Sweepstakes draw on said date, June 29, 1947, but the said
accused failed to perform all the acts of execution which
would have produce the crime of estafa through falsification
of a security as a consequence by reason of some causes
other than this spontaneous desistance, to wit: one Bayani
Miller, an employee to whom the said accused presented
said ticket in the Philippine Charity Sweepstakes Office
discovered that the said ticket as presented by the said
accused was falsified and immediately thereafter he called
for a policeman who apprehended and arrested the said
accused right then and there.
Contrary to law.
(Sgd.)
LORENZO
Assistant City Fiscal

RELOVA

and was sentenced by Judge Emilio Pena to suffer not less than 10
years and 1 day of prision mayor and not more than 12 years and 1
day of reclusion temporal, and to pay a fine of P100 and the costs.

From that sentence he appealed to this court, contending (1) that

the facts and (2) that the trial court lacked jurisdiction to convict
him on a plea of guilty because, being illiterate, he was not assisted
by counsel.
In support of the first contention, counsel for the appellant argues
that there could be so could be no genuine 1/8 unit Philippine
Charity Sweepstakes ticket for the June 29, 1947, draw; that this
court has judicial notice that the Philippine Charity Sweepstakes
Office issued only four 1/4 units for each ticket for the said draw of
June 29, 1947; that the information does not show that the true and
real unidentified number of the ticket alleged to have been torn
was not and could not be 074000; that the substitution and writing
in ink of the said number 074000 was not falsification where the
true and real number of the ticket so torn was 074000.
This contention is based on assumption not borne out by the
record. The ticket alleged to have been falsified is before us and it
appears to be a 1/8 unit. We cannot take judicial notice of what is
not of common knowledge. If relevant, should have been proved.
But if it is true that the Philippine Charity Sweepstakes Office did
not issue 1/8 but only 1/4 units of tickets for the June 29, 1947,
draw, that would only strengthen the theory of the prosecution that
the 1/8 unit of a ticket which appellant presented to the Philippine
Charity Sweepstakes Office was spurious. The assumption that the
true and real unidentified number of the ticket alleged to have
been torn was the winning number 074000, is likewise not
supported by the record. The information to which appellant
pleaded guilty alleged that the appellant removed the true and real
unidentified number of the ticket and substituted and wrote in ink
at the bottom on the left side of said ticket the figure or number
074000. It is obvious that there would have been no need of
removal and substitution if the original number on the ticket was
the same as that which appellant wrote in ink in lieu thereof.
The second contention appears to be based on a correct premises
but wrong conclusion. The fact that appellant was illiterate did not
deprive the trial court of jurisdiction assisted by counsel. The
decision expressly states that appellant waived the right to be
assisted by counsel, and we know of no law against such waiver.
It may be that appellant was either reckless or foolish in believing
that a falsification as patent as that which he admitted to have
perpetrated would succeed; but the recklessness and clumsiness of
the falsification did not make the crime impossible within the

purview of paragraph 2, article 4, in relation to article 59, of the

Revised Penal Code. Examples of an impossible crime, which
formerly was not punishable but is now under article 59 of the
Revised Penal Code, are the following: (1) When one tries to kill
another by putting in his soup a substance which he believes to be
arsenic when in fact it is common salt; and (2) when one tries to
murder a corpse. (Guevara, Commentaries on the Revised Penal
Code, 4th ed., page 15; decision, Supreme Court of Spain,
November 26, 1879; 12 Jur. Crim., 343.) Judging from the
appearance of the falsified ticket in question, we are not prepared
to say that it would have been impossible for the appellant to
consummate the crime of estafa thru falsification of said ticket if
the clerk to whom it was presented for the payment had not
exercised due care.
The penalty imposed by article 166 for the forging or falsification of
"treasury or bank notes or certificates or other obligations and
securities" is reclusion temporal in its minimum period and a fine
not to exceed P10,000, if the document which has been falsified,
counterfeited, or altered is an obligation or security of the United
States or of the Philippine Islands. This being a complex crime of
attempted estafa through falsification of an obligation or security of
the Philippines, the penalty should be imposed in its maximum
period in accordance with article 48. Taking into consideration the
mitigating circumstance of lack of instruction, and applying the
Indeterminate Sentence Law, the minimum cannot be lower
than prision mayor in its maximum period, which is 10 years and 1
day to 12 years. It results, therefore, that the penalty imposed by
the trial court is correct.
The alteration, or even destruction, of a losing sweepstakes ticket
could cause no harm to anyone and would not constitute a crime
were it not for the attempt to cash the ticket so altered as a prizewinning number. So in the ultimate analysis appellant's real offense
was the attempt to commit estafa (punishable with eleven days
of arresto menor); but technically and legally he has to suffer for
the serious crime of falsification of a government obligation. We
realize that the penalty is too severe, considering all the
circumstances of the case, but we have no discretion to impose a
lower penalty than authorized by law. The exercise of clemency and
not in this court.
We are constrained to affirm the sentence appealed from, with
costs against the appellant.

Moran, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes

and Torres, JJ., concur.

sometime result by force of circumstances. In such cases, any

capital doubt should be resolved in favor of the accused.

Separate Opinions

My vote, therefore, is to reverse the appealed judgment and to

release the appellant immediately as he has been in prison since
November 11, 1947.

PARAS, J., dissenting:

The accused-appellant, instead of being the victimizer, had become
the victim. He was accused of having falsified a genuine 1/8 unit of
the Philippine Charity Sweepstakes ticket for the June, 1947, draw
by tearing off at its bottom in a cross-wise direction a portion,
thereby removing the true and unidentified number of said ticket
and substituting and writing in ink at the bottom on the left side the
number 074000, thus making said ticket bear a prize-winning
number. He was convicted of attempted estafa thru falsification of
an obligation or security and sentenced to an indeterminate
penalty of from 10 years and 1 day of prision mayor 12 years and 1
day ofreclusion temporal, and to pay a fine of P100 plus the costs.
He waived the right to be assisted by counsel and merely pleaded
guilty to the information.
The appellant is admittedly an illiterate and, in my opinion, had
committed only an impossible crime now punishable under
paragraph 2, article 4, in relation to article 59, of the Revised Penal
Code. I say impossible, because in the way the alleged falsification
was done, it was inherently inadequate or ineffective and according
certain to be detected. Stated otherwise, the appellant could not
have succeeded in cashing the ticket. Flor who would cash a ticket
which, in the first place, has a missing portion and, in the second
place, contains a number written in ink. Not even boy agents who
conduct their trades on street sidewalks, and much less the
employee of the Sweepstakes Office to whom it was presented. As
a matter of fact, the falsification was readily detected by said
employee. The crime is just as impossible as passing a counterfeit
paper bill concocted in regular newsprint and in ordinary
handwriting.
A doubt also arises from the fact that the ticket is a 1/8 unit, in the
face of the contention of attorney for appellant in this instance that
the tickets for the June, 1947, Sweepstakes draw consisted of only
four units. Of course, this may not be a matter of judicial notice, but
the point remains that if appellant was assisted by competent
counsel in the trial court, the fact might have been duly proven. It
is true that the appellant waived his right to be assisted by counsel,
but we cannot help pointing out that a miscarriage of justice may

G.R. Nos. 119987-88 October 12, 1995

THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. LORENZO B. VENERACION, Presiding Judge of the
Regional Trial Court, National Capital Judicial Region,
Branch 47, Manila, HENRY LAGARTO y PETILLA and ERNESTO
CORDERO, respondents.
KAPUNAN, J.:
The sole issue in the case at bench involves a question of law. After
finding that an accused individual in a criminal case has, on the
occasion of Rape, committed Homicide, is the judge allowed any
discretion in imposing either the penalty of Reclusion Perpetua or
Death?
The facts antecedent to the case before this Court, as narrated by
petitioner, 1 involve the perpetration of acts so bizarre and devoid
of humanity as to horrify and numb the senses of all civilized men:
On August 2, 1994, the cadaver of a young girl, later
identified as Angel Alquiza wrapped in a sack and
yellow table cloth tied with a nylon cord with both
feet and left hand protruding from it was seen
floating along Del Pan St. near the corner of
Lavesares St., Binondo, Manila.
When untied and removed from its cover, the lifeless
body of the victim was seen clad only in a light
colored duster without her panties, with gaping
wounds on the left side of the face, the left chin, left
ear, lacerations on her genitalia, and with her head
bashed in.

On the basis of sworn statements of witnesses, booking sheets,

arrest reports and the necropsy report of the victim, Abundio
Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y
Petilla, of 288 Area H. Parola Compound, Tondo, Manila were later
charged with the crime of Rape with Homicide in an Information
dated August 8, 1994 filed with the Regional Trial Court of Manila,
National Capital Judicial Region. Said Information, docketed as
Criminal Case No. 94-138071, reads:
That on or about August 2, 1994, in the City of
Manila, Philippines, the said accused, conspiring and
confederating together with one alias "LANDO" and
other persons whose true names, identifies and
present whereabouts are still unknown and helping
one another, with treachery, taking advantage of
their superior strength and nocturnity, and ignominy,
and with the use of force and violence, that is, by
taking ANGEL ALQUIZA y LAGMAN into a warehouse,
covering her mouth, slashing her vagina, hitting her
head with a thick piece of wood and stabbing her
neck did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the person of
said ANGEL ALQUIZA y LAGMAN, a minor, seven (7)
years of age, against the latter's will and consent and
on said occasion the said ABUNDIO LAGUNDAY, a.k.a.
"LANDO" and others, caused her fatal injuries which
were the direct cause of her death immediately
thereafter.
CONTRARY TO LAW.
Subsequently thereafter, Ernesto Cordero y Maristela,
a.k.a. "Booster," of 1198 Sunflower St., Tondo,
Manila, Rolando Manlangit y Mamerta, a.k.a. "Lando,"
of 1274 Kagitingan St., Tondo, Manila, Richard
Baltazar y Alino, a.k.a. "Curimao," also of 1274
Kagitingan St., Tondo, Manila, and Catalino Yaon y
Aberin, a.k.a. "Joel," of 1282 Lualhati St., Tondo,
Manila were accused of the same crime of Rape with
Homicide in an Information dated August 11, 1994,
docketed as Criminal Case No. 94-138138, allegedly
committed as follows:
That on or about the 2nd day of
August, 1994, in the City of Manila,

Philippines,
the
said
accused
conspiring and confederating with
ABUNDIO
LAGUNDAY Alias "JR,"
JEOFREY and HENRY LAGARTO y
PETILLA who have already been
charged in the Regional Trial Court of
Manila of the same offense under
Criminal Case No. 94-138071, and
helping one another, with treachery,
taking advantage of their superior
strength and nocturnity and ignominy,
and with the use of force and violence,
that is, by taking ANGEL ALQUIZA y
LAGMAN into a pedicab, and once
helpless, forcibly bringing her to a
nearby
warehouse,
covering
her
mouth, slashing her vagina, hitting her
head with a thick piece of wood and
stabbing her neck, did then and there
wilfully, unlawfully and feloniously
have carnal knowledge of the person
of said ANGEL ALQUIZA y LAGMAN, a
minor, seven (7) years of age, against
the latter's will and consent and on
said occasion the said accused
together with their confederates
ABUNDIO LAGARTO y PETILLA caused
her fatal injuries which were the direct
cause of her death immediately
thereafter.
CONTRARY TO LAW.
The two criminal cases were consolidated to Branch
47 of the Regional Trial Court of Manila, presided over
by respondent Judge.
Duly arraigned, all the accused, except Abundio
Lagunday who was already dead, (allegedly shot by
police escorts after attempting to fire a gun he was
able to grab from SPO1 D. Vidad on August 12,
1994), pleaded "Not Guilty." Abundio Lagunday was
dropped from the Information.

After trial and presentation of the evidence of the prosecution and

the defense, the trial court rendered a decision 2 on January 31,
1995 finding the defendants Henry Lagarto y Petilla and Ernesto
Cordero y Maristela guilty beyond reasonable doubt of the crime of
Rape with Homicide and sentenced both accused with the "penalty
ofreclusion perpetua with all the accessories provided for by
law." 3 Disagreeing with the sentence imposed, the City Prosecutor
of Manila on February 8, 1995, filed a Motion for Reconsideration,
praying that the Decision be "modified in that the penalty of death
be imposed" against respondents Lagarto and Cordero, in place of
the original penalty (reclusion perpetua). Refusing to act on the
merits of the said Motion for Reconsideration, respondent Judge, on
February 10, 1995, issued an Order denying the same for lack of
jurisdiction. The pertinent portion reads:
The Court believes that in the above-entitled cases,
the accused Lagarto and Cordero have complied with
the legal requirements for the perfection of an
appeal. Consequently, for lack of jurisdiction, this
Court cannot take cognizance of the Motion for
Reconsideration of the Public Prosecutor of Manila.
WHEREFORE, the order earlier issued by this Court
regarding the Notices of Appeal filed by both herein
accused is hereby reiterated.
The Clerk of this Court is hereby directed to transmit
the complete records of these cases, together with
the notices of appeal, to the Honorable Supreme
Court, in accordance with Sec. 8, Rule 122 of the
Revised Rules of Criminal Procedure.
SO ORDERED.
Hence, the instant petition.
The trial court's finding of guilt is not at issue in the case at bench.
The basis of the trial court's determination of guilt and its
conclusions will only be subject to our scrutiny at an appropriate
time on appeal. We have thus clinically limited our narration of
events to those cold facts antecedent to the instant case relevant
to the determination of the legal question at hand, i.e., whether or
not the respondent judge acted with grave abuse of discretion and
in excess of jurisdiction when he failed and/or refused to impose

the mandatory penalty of death under Republic Act No. 7659, after
finding the accused guilty of the crime of Rape with Homicide.
We find for petitioner.
Obedience to the rule of law forms the bedrock of our system of
justice. If judges, under the guise of religious or political beliefs
were allowed to roam unrestricted beyond boundaries within which
they are required by law to exercise the duties of their office, then
law becomes meaningless. A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting
under its authority. Under this system, judges are guided by the
Rule of Law, and ought "to protect and enforce it without fear or
favor," 4 resist encroachments by governments, political parties, 5 or
even the interference of their own personal beliefs.
In the case at bench, respondent judge, after weighing the
evidence of the prosecution and the defendant at trial found the
accused guilty beyond reasonable doubt of the crime of Rape with
Homicide. Since the law in force at the time of the commission of
the crime for which respondent judge found the accused guilty was
Republic Act No. 7659, he was bound by its provisions.
Section 11 of R.A. No. 7659 provides:
Sec. 11. Article 335 of the same Code is hereby
amended to read as follows:
Art. 335. When and how rape is committed. Rape
is committed by having carnal knowledge of a
woman under any of the following circumstances:
1. By using force or intimidation.
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of age or
is demented.
The crime of rape shall be punished by reclusion
perpetua.

Whenever the crime of rape is committed with the

use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the
victim has become insane, the penalty shall be
death.
When the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to
death.
When by reason or on the occasion of the rape, a
homicide is committed, the penalty shall be death. . .
.6
Clearly, under the law, the penalty imposable for the crime of Rape
with Homicide is not Reclusion Perpetua but Death. While Republic
Act 7659 punishes cases of ordinary rape with the penalty
of Reclusion Perpetua, it allows judges the discretion depending
on the existence of circumstances modifying the offense committed
to impose the penalty of either Reclusion Perpetua only in the
three instances mentioned therein. Rape with homicide is not one
of these three instances. The law plainly and unequivocably
provides that "[w]hen by reason or on the occasion of rape, a
homicide is committed, the penalty shall be death." The provision
leaves no room for the exercise of discretion on the part of the trial
judge to impose a penalty under the circumstances described,
other than a sentence of death.
We are aware of the trial judge's misgivings in imposing the death
sentence because of his religious convictions. While this Court
sympathizes with his predicament, it is its bounden duty to
emphasize that a court of law is no place for a protracted debate on
the morality or propriety of the sentence, where the law itself
provides for the sentence of death as a penalty in specific and welldefined instances. The discomfort faced by those forced by law to
impose the death penalty is an ancient one, but it is a matter upon
which judges have no choice. Courts are not concerned with the
wisdom, efficacy or morality of laws. In People vs. Limaco 7 we held
that:
[W]hen . . . private opinions not only form part of
their decision but constitute a decisive factor in

arriving at a conclusion and determination of a case

or the penalty imposed, resulting in an illegality and
reversible error, then we are constrained to state our
opinion, not only to correct the error but for the
guidance of the courts. We have no quarrel with the
trial judge or with anyone else, layman or jurist as to
the wisdom or folly of the death penalty. Today there
are quite a number of people who honestly believe
that the supreme penalty is either morally wrong or
unwise or ineffective. However, as long as that
penalty remains in the statute books, and as long as
our criminal law provides for its imposition in certain
cases, it is the duty of judicial officers to respect and
apply the law regardless of their private opinions. It
is a well settled rule that the courts are not
concerned with the wisdom, efficacy or morality of
laws. That question falls exclusively within the
province of the Legislature which enacts them and
the Chief Executive who approves or vetoes them.
The only function of the judiciary is to interpret the
laws and, if not in disharmony with the Constitution,
to apply them. And for the guidance of the members
of the judiciary we feel it incumbent upon us to state
that while they as citizens or as judges may regard a
certain law as harsh, unwise or morally wrong, and
may recommend to the authority or department
concerned, its amendment, modification, or repeal,
still, as long as said law is in force, they must apply it
and give it effect as decreed by the law-making
body. 8
Finally, the Rules of Court mandates that after an adjudication of
guilt, the judge should impose "the proper penalty and civil liability
provided for by the law on the accused." 9 This is not a case of a
magistrate ignorant of the law. This is a case in which a judge, fully
aware of the appropriate provisions of the law, refuses to impose a
penalty to which he disagrees. In so doing, respondent judge acted
without or in excess of his jurisdiction or with grave abuse of
discretion amounting to a lack of jurisdiction in imposing the
penalty of Reclusion Perpetua where the law clearly imposes the
penalty of Death.
WHEREFORE, PREMISES CONSIDERED, the instant petition is
GRANTED. The case is hereby REMANDED to the Regional Trial
Court for the imposition of the penalty of death upon private

respondents in consonance with respondent judge's finding that the

private respondents in the instant case had committed the crime of
Rape with Homicide under Article 335 of the Revised Penal Code, as
amended by Section 11 of Republic Act No. 7659, subject to
automatic review by this Court of the decision imposing the death
penalty.
SO ORDERED.

treacherously; and that being so the crime would have been

qualified as murder if death had resulted.
G.R. No. L-12155

February 2, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
PROTASIO EDUAVE, defendant-appellant.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A
deadly weapon was used. The blow was directed toward a vital part
of the body. The aggressor stated his purpose to kill, thought he
had killed, and threw the body into the bushes. When he gave
himself up he declared that he had killed the complainant.
There was alevosia to qualify the crime as murder if death had
resulted. The accused rushed upon the girl suddenly and struck her
from behind, in part at least, with a sharp bolo, producing a frightful
gash in the lumbar region and slightly to the side eight and one-half
inches long and two inches deep, severing all of the muscles and
tissues of that part.
The motive of the crime was that the accused was incensed at the
girl for the reason that she had theretofore charged him criminally
before the local officials with having raped her and with being the
cause of her pregnancy. He was her mother's querido and was
living with her as such at the time the crime here charged was
committed.
That the accused is guilty of some crime is not denied. The only
question is the precise crime of which he should be convicted. It is
contended, in the first place, that, if death has resulted, the crime
would not have been murder but homicide, and in the second
place, that it is attempted and not frustrated homicide.
As to the first contention, we are of the opinion that the crime
committed would have been murder if the girl had been killed. It is
qualified by the circumstance of alevosia, the accused making a
sudden attack upon his victim from the rear, or partly from the rear,
and dealing her a terrible blow in the back and side with his bolo.
Such an attack necessitates the finding that it was made

As to the second contention, we are of the opinion that the crime

was frustrated and not attempted murder. Article 3 of the Penal
Code defines a frustrated felony as follows:
A felony is frustrated when the offender performs all the
acts of execution which should produce the felony as a
consequence, but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the
commission of the felony directly by overt acts, and does
not perform all the acts of execution which constitute the
felony by reason of some cause or accident other than his
own voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact
that the defendant performed all of the acts which should have
resulted in the consummated crime and voluntarily desisted from
further acts. A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by overt
acts, is prevented, against his will, by some outside cause from
performing all of the acts which should produce the crime. In other
words, to be an attempted crime the purpose of the offender must
be thwarted by a foreign force or agency which intervenes and
compels him to stop prior to the moment when he has performed
all of the acts which should produce the crime as a consequence,
which acts it is his intention to perform. If he has performed all of
the acts which should result in the consummation of the crime
and voluntarily desists from proceeding further, it can not be an
attempt. The essential element which distinguishes attempted from
frustrated felony is that, in the latter, there is no intervention of a
foreign or extraneous cause or agency between the beginning of
the commission of the crime and the moment when all of the acts
have been performed which should result in the consummated
crime; while in the former there is such intervention and the
offender does not arrive at the point of performing allof the acts
which should produce the crime. He is stopped short of that point
by some cause apart from his voluntary desistance.

To put it in another way, in case of an attempt the offender never

passes the subjective phase of the offense. He is interrupted and
compelled to desist by the intervention of outside causes before
the subjective phase is passed.
On the other hand, in case of frustrated crimes the subjective
phase is completely passed. Subjectively the crime is complete.
Nothing interrupted the offender while he was passing through the
subjective phase. The crime, however, is not consummated by
reason of the intervention of causes independent of the will of the
offender. He did all that was necessary to commit the crime. If the
crime did not result as a consequence it was due to something
beyond his control.
The subjective phase is that portion of the acts constituting the
crime included between the act which begins the commission of
the crime and the last act performed by the offender which, with
the prior acts, should result in the consummated crime. From that
time forward the phase is objective. It may also be said to be that
period occupied by the acts of the offender over which he has
control that period between the point where he begins and the
points where he voluntarily desists. If between these two points the
offender is stopped by reason of any cause outside of his own
voluntary desistance, the subjective phase has not been passed
and it is an attempt. If he is not so stopped but continues until he
performs the last act, it is frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena
temporal there
being
neither aggravating
nor
mitigating
circumstance. As so modified, the judgment is affirmed with costs.
So ordered.
Torres and Araullo, JJ., concur.

Honorable Court, the accused Butchoy de la Torre, in

conspiracy and confederating with his wife, Fe de la Torre,
by means of force, threat and intimidation, did then and
there willfully, unlawfully and feloniously have carnal
knowledge with one BABY JANE DAGOT, a girl of 16 years of
age against her will and consent, to her damage and
prejudice.
That Fe de la Torre is hereby accused as a co-principal for
indispensable cooperation in the commission of the crime by
threatening Baby Jane Dagot with a bladed weapon if ever
said minor refused to submit to perform a sexual act with
Butchoy de la Torre.
CONTRARY TO LAW.1

G.R. Nos. 121213 and 121216-23

January 13, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
BUTCHOY DE LA TORRE and FE DE LA TORRE, appellants.
DECISION
TINGA, J.:
The present cases are remarkably different, if not altogether
unique, in two aspects. Appealed are nine (9) rape convictions of
the same accused for ravishing the same hapless young girl. And
found guilty are a husband and wife tandem.
Appellant-spouses Butchoy and Fe de la Torre were charged in nine
(9) separate Amended Complaints with rape committed during the
months of September, October and December 1992 in Barangay
Tumarbong, Roxas, Palawan. The victim, Baby Jane Dagot, was then
only sixteen (16) years old.
The first Amended Complaint dated February 23, 1994 charged the
appellants with rape as follows:
That on or about the 2nd week of September, 1992, at
Barangay Tumarbong, in the Municipality of Roxas, Province
of Palawan, Philippines, and within the jurisdiction of this

The other Amended Complaints are similarly worded except for

changes in the dates of commission of the offenses. The second to
the seventh complaints charged the appellants with rape
perpetuated in the remaining weeks of the month of September as
well as the whole month of October. 2 The last amended complaint
charged the appellants with rape in the second week of December
1992.3
The nine criminal cases were consolidated and joint trial conducted
before the Regional Trial Court of Palawan and Puerto Princesa City,
Branch 47. On March 2, 1995 Judge Eustaquio Z. Gacott, Jr. found
the appellants guilty of all nine (9) counts of rape charged in the
nine Amended Complaints and sentenced them to reclusion
perpetuafor each count. They were also ordered to indemnify the
complainant
the
sum
of P5,000.00
as
actual
damages
and P90,000.000 as moral and exemplary damages, and to pay the
costs.
Appellant Fe de la Torre employed Baby Jane Dagot as housemaid in
July 1992 in Langogan, Puerto Princesa City, Palawan. After a
weeks stay in Langogan, Fe brought Baby Jane to New Buncag,
Puerto Princesa City. In September 1992, they transferred to
Tumarbong, Roxas, Palawan. It was in Tumarbong where Baby Jane
first met Fes husband, appellant Butchoy dela Torre. 4
As recounted by Baby Jane, the initial rape incident occurred in the
first week of September 1992. She could not remember the exact
date but in that fateful night, as in previous nights, Baby Jane and
the appellant-spouses were asleep on the floor of the same

bedroom. At around 12:00 oclock midnight, appellant Fe de la Torre

woke Baby Jane and her husband Butchoy. Baby Jane was surprised
to see that Fe was holding a lighted kerosene lamp and a
scythe.5 Fe ordered her husband to transfer and lie beside Baby
Jane. As appellant Butchoy did not comply, Fe herself transferred so
that Baby Jane was between her and Butchoy. Fe put down the
scythe and the lamp and proceeded to take Butchoys clothes off
and then Baby Janes. Butchoy offered no resistance but Baby Jane
objected and cried to no avail. Fe then ordered Butchoy to have sex
with Baby Jane. Baby Jane, fearful of the spouses and the dawning
realization of what would happen to her, could not ward off his
advances. Butchoy placed himself on top of Baby Jane, inserted his
penis into her vagina and did a push and pull motion. 6 Baby Jane
felt pain. All the while, Fe was standing beside them, holding the
lamp and the scythe.7 After the sexual intercourse, Butchoy kissed
her on the neck and fondled her breasts. 8 Baby Jane found it
revolting but could not do much to refuse him, as she was afraid of
Fe. When Butchoy was finished, he threw her clothes to her and got
dressed. Baby Jane immediately put on her clothes. She wanted to
leave the room but Fe prevented her from doing so. 9 They all went
back to sleep. Baby Jane could not sleep. The following morning,
Baby Jane saw that there was blood on her panty. 10
The rape was repeated once a week from the second week of
September 1992 on to the fourth week of October 1992. Baby Jane
had her menarche in the month of November 1992 and was spared
from the appellants abuse that month. 11 However she was again
raped in the second week of December. This was to be the last.
Baby Jane testified that the subsequent rape incidents were carried
out in the same manner as the first. 12 She felt pain during the first
and second rapes, but did not feel pain anymore in the succeeding
rape incidents.13
In December 1992, Fe brought Baby Jane with her to
Langogan.14 When Fe went out to check on her rattan business,
Baby Jane was left alone in the house. Baby Jane took the chance to
slip out of the house and go to her godmother Lucita Talamisan,
who was then the barangay captain of Langogan. She narrated her
ordeal
to
her
godmother. 15 While
Baby
Jane
was
at
the barangay captains home, Fe arrived and told Baby Jane not to
report the matter. Fe threatened to twist the facts about the rape,
that she caught Baby Jane and her husband in the act and would
file a complaint against them.16

Baby Jane thereafter proceeded to her parents home and related

to them her abuse in the hands of the appellant-spouses. Her
father brought her to the police station in San Rafael, Puerto
Princesa. They were advised to have her medically examined. She
underwent the medical examination on February 1993 at the
Provincial Health Office of Palawan conducted by Dr. Joselito
Vicente, Municipal Health Officer.17 The Medico-Legal Certificate
revealed the following:
External findings:
(-) signs of physical injuries
Pelvic examination:
External findings = minimal distribution of pubic hair
Healed hymenal lacerations = 2:00 oclock
4:00 oclock
10:00 oclock
Vaginal vault admits one finger with ease18
The prosecution presented Dr. Marideth de Leon, Assistant
Provincial Health Officer, to testify on the findings of Dr. Joselito
Vicente. Dr. de Leon concluded from the healed lacerations that
when Baby Jane was examined, there had been sexual intercourse
possibly two or three weeks before the examination. Clearly there
was previous insertion into the vaginal canal, but she could not
determine from the medical findings when the first intercourse
occurred.19
The appellant-spouses denied the allegations of rape. In their
version of the events, from September to October 1992, neither
they nor Baby Jane were in Tumarbong but were in Puerto Princesa
instead. They stayed in Tumarbong for less than a month. 20 Butchoy
asserts that they stayed there for only a week. 21 Fe explains that
they had to leave for Puerto Princesa since her daughter-in-law
gave birth in October 1992. When they went to Puerto Princesa,
they took Baby Jane with them. 22 In Tumarbong, Baby Jane and the
appellants slept in separate rooms divided by a sawali wall. The
appellants profess that they had no quarrel with Baby Jane

herself,23 but surmise that the imputations of rape against them

may have been instigated by Baby Janes father, Rafael Dagot.

question before the trial court was whether the complainants

testimony is credible.

Rafael Dagot was employed by appellant Fe dela Torre as

a capataz in her rattan business. She allegedly caught him stealing
some of the rattan and selling them to others without her consent.
Fe claims that Rafael asked for forgiveness and offered to have
Baby Jane work for them as their maid. She forgave him, allowed
him to continue to work for her and also employed Baby Jane as her
maid. Rafael also allegedly owes them a total of P11,500.00 in cash
which he borrowed on May 1991. However when Fe tried to collect
from Rafael through the barangaycaptain, Rafael allegedly
transferred to another place and she no longer saw him.24 The
appellants imply that Rafael filed the complaints for rape against
them to escape payment of his debt.25

The test to determine the value of the testimony of a witness is

whether such is in conformity with knowledge and consistent with
the experience of mankind. Further, the credibility of witnesses can
also be assessed on the basis of the substance of their testimony
and the surrounding circumstances.28

The appellants also insist that Baby Jane was already married to
one Eddie Tabi when they took her as their maid. This explains why,
according to them, Baby Jane was no longer a virgin. 26

The appellants point to the unusual manner of commission of the

crime, involving as it did not only the sexual assault by the man but
also the participation of his wife, to discredit the complainants
testimony. Under theRevised Penal Code,29 however, an accused
may be considered a principal by direct participation, by
inducement, or by indispensable cooperation. This is true in a
charge of rape against a woman, provided of course a man is
charged together with her. Thus, in two cases this Court convicted
the woman as a principal by direct participation since it was proven
that she held down the complainant in order to help her co-accused
spouse consummate the offense.

In this appeal, the appellants impute error to the trial court in

believing Baby Janes account of the supposed rape, and in not
according them their right to be presumed innocent. 27 The
appellants proceed from the theory that the alleged rape as
narrated by the complainant is fantastic and unbelievable. In Baby
Janes narration, it was Fe who ordered Butchoy to have sexual
intercourse with Baby Jane. The appellant-spouses argue that it is
unnatural for a wife like Fe to intensely desire that her husband
have sex with their maid. There is no evidence of anything wrong or
unusual about the appellants marriage or their sexual habits that
would support the complainants story. Even assuming that the
sexual encounters had actually taken place, the appellants insist
that the prosecution failed to prove that they did so against Baby
Janes will. Evidence for the prosecution fails to explain how all nine
rapes could have occurred over a period of several months unless
Baby Jane gave her full cooperation. The appellants insist that the
trial court merely relied on the weakness of the evidence for the
defense to convict them and hence deprived them of their right to
the presumption of innocence.

In People v. Villamala,30 the Court found the husband and wife

guilty for raping their neighbor and "kumare" in this factual
setting, viz: the wife visited the victim at her home on the pretext
of inquiring as to the whereabouts of her husband. Once inside, she
whistled for her husband and he immediately appeared at the
doorstep. The wife then suddenly pinned her "kumare" to the floor.
The husband forcefully removed the victims skirt and panties,
removed his shorts, placed himself on top of the victim and
consummated the rape. In the more recent People v. Saba,31the
accused married couple victimized a fourteen (14) year-old
epileptic who stayed at their home for treatment by the wife who
was a reputed healer. On the pretext of conducting a healing
session, the wife ordered the victim to lie down on the floor then
pinned the victims hands to the floor and covered her mouth while
her husband removed his pants and briefs and the victims panties
and raped the young girl. These two cases show not only the
possibility but the reality of rape committed by a woman together
with a man.

From the outset it should be noted that while the appellants assail
the credibility of the complainants testimony, they actually do not
point to specific inconsistencies or contradictions in her testimony.
True, the trial court relied solely on the testimony of the
complainant regarding the rape incidents, but the determinative

A close look at the cited cases reveals a common thread that not
only links them but also explains why the offenses were committed
in the fashion they were. This consists of the close relationship
between the parties and the attendant conducive environment. The
victim and the felons were familiar with each other and there was a

certain bond of trust between them. The same kindred relationship

and suitable setting are extant in the present case. Indeed, the
proximity of the victim to the accused spouses was established by
the particular circumstances of their relationship. The backdrop
presented the offenders with a tempting opportunity to satisfy their
twisted desires upon a conveniently placed victim.

COURT:

The appellants argue that the prosecution failed to present any

evidence of aberrant sexual behavior on their part that would
justify the trial courts conclusion that the rape occurred as
described by the complainant. This argument must fail since the
sexual habits of the appellant-spouses do not constitute an
essential element of the offense of rape. The prosecution only has
to prove that there was carnal knowledge of the complainant and
that it was done against her will. The trial courts evaluation of the
evidence resulted in the appellants conviction and a close scrutiny
of its judgment leads us to affirm it.

Q What year?

The greatest weight is accorded to the findings and conclusions

reached by the lower court regarding the credibility of witnesses
and their testimony, owing to the courts unique position to see,
hear and observe the witnesses testify. Unless it is shown that the
court overlooked or misunderstood some facts or circumstances of
weight and substance which would affect the outcome of the case,
or that its findings of fact and conclusions on the credibility of
witnesses are not supported by the evidence on record, its
determination is left undisturbed.32 In the present case, we see no
need to overturn this well-settled principle.

Go ahead.

Q When was this?

A It happened in September, Your Honor, but I cannot
remember the exact date.

A 1992, Your Honor.

Q Can you remember what week? First, second or what?
A I cannot remember, your Honor.
COURT:

PROSECUTOR GUAYCO:
Q Now, this incident that happened to you, what is this?
A That was when Fe de la Torre told her husband to use me
but I resisted. But she removed our clothes.
COURT:

Herein appellants do not refer to any inconsistency in the

complainants testimony that would discredit her or would lead this
Court to doubt her version of the story. Baby Janes testimony was
straightforward and simple, positively identifying the appellants as
her abusers and clearly narrating the circumstances of her
defloration.

Q You mean Fe de la Torre.

A Yes, Your Honor.
Q Whose clothes?

PROSECUTOR GUAYCO:

A Both of us, Your Honor.

Q While you were residing with Butchoy de la Torre and Fe

de la Torre in Tumarbong, Roxas, was there any incident that
transpired sometime in September 1992?

Q You and who?

A Something happened, Sir.

A Butchoy de la Torre, Your Honor.

Q What do you mean by "to use me"?

A To have sexual intercourse ("ing bubuli") with me, Your

Honor.
PROSECUTOR GUAYCO:

Go ahead.
PROSECUTOR GUAYCO:

Q Where did this happen?

Q Was this Fe de la Torre saying something while the

incident was going on?

A At Tumarbong, Sir.

A Yes, Sir.

Q Where in Tumarbong?

Q What was she saying?

A In the house of Fe de la Torre, Sir.

A That I can leave the house only if I marry Butchoy de la

Torre, Sir.

Q What happened next after that?

COURT:

A Butchoy de la Torre already used me, Sir.

COURT:
Q Be more specific. What is that "use me"?
A After that Butchoy de la Torre had sexual intercourse with
me while Fe de la Torre was also present.

Q Now, you said Fe de la Torre removed your clothes and

also that of Butchoy. While she was doing that did you not
object?
A I objected, Your Honor. I resisted. I even cried, but she
forced me.

Q And Fe de la Torre was doing what?

Q But Fe de la Torre is smaller than you, did you not fight

her?

A Fe de la Torre was holding a big kerosene lamp and also a

scythe.

A How could I fight her when she was holding that scythe,
Your Honor.

Q Is that a weapon?

Q Can you describe that scythe?

A Yes, Your Honor, a "karit" or "sangget" in Cuyuno dialect,

Your Honor.

A It is sharp and we are using it in the house, Your Honor.

Q You mean Fe de la Torre was there while Butchoy was

having sexual intercourse with you holding a scythe and a
lamp?

Q But Butchoy de la Torre was not threatening you?

A No, Sir.

A Yes, Sir.

Q Why did you allow Butchoy de la Torre to have sex with

you without you resisting?

COURT:

A Fe de la Torre ordered him, Your Honor.

Q Butchoy de la Torre?

COURT:

A Yes, Your Honor.

Q While on top of you, what was happening?

Q You heard that?

A Yes, Your Honor.

A While he was on top of me, Butchoy de la Torre was doing

the push and pull motion, Your Honor, ("aga ayud-ayud")
while Fe was holding a scythe and a lamp.

Q How? What were the words uttered by Fe de la Torre in

ordering her husband?

Q Was Fe de la Torre lying down or standing while this was

going on?

A We were sleeping in the same room, Your Honor, on the

floor and I heard Fe de la Torre ordering her husband to
transfer to my side but Butchoy objected. So, Fe de la Torre
was the one who transferred to the other side of her
husband and Butchoy was already between us.

A She was standing holding a lamp, Your Honor.

PROSECUTOR GUAYCO:

Q This push and pull motion, what was that?

Q After that what happened next?

A While he was having sex with me he was doing that

motion, Sir.

Q Only a lamp?
A Also the scythe.

A After that Fe de la Torre took off our clothes.

Q Was it not Butchoy de la Torre who took off your clothes?
A It was Fe de la Torre who took off Butchoy de la Torres
clothes, Sir.

Q Was his penis inside your vagina when he was doing that
push and pull motion?
A Yes, Your Honor.
Q Did you enjoy it?

COURT:
Q What time of the night was this?

A No, Your Honor. In fact I dont want it.

Q What did you feel?

A It was about 12:00 midnight.

xxx

A It was painful, Your Honor.

Q Why was it painful?

PROSECUTOR GUAYCO:
Q After your clothes were taken off, what happened next,
Madam Witness?
A Butchoy de la Torre placed himself on top of me.

A Because of his penetration, Your Honor. He inserted his

penis inside my vagina.
Q Was that the first time you experienced sex?

A Yes, Your Honor.

PROSECUTOR GUAYCO:

Q There was no blood?

Q This push and pull motion that Butchoy de la Torre did,

how long did it take?

A Only my panty was filled with blood, Your Honor.

A For sometime, Sir.
Q But you said your clothes were taken off?
A After the rape I put on my panty and the next morning I
saw my panty with blood.
Q That was the first time he had sexual intercourse with
you?
A Yes, Your Honor.

COURT:
Q How many minutes?
A I cannot tell, Your Honor.
PROSECUTOR GUAYCO:
Q Did Butchoy de la Torre kiss you?

Q That was about the first week of September 1992?

A Yes, Your Honor.

A Yes, Sir, on my neck.

Q Not on your face or lips?

Q The husband did not complain to the wife why she was
doing it?

A No, Sir.

A He did not complain, Your Honor.

COURT:

Q But you could feel the penis of Butchoy de la Torre harden

as it entered your vagina?

Q So Butchoy liked you also?

A Yes, Your Honor, it was painful.

A I did not notice that, Your Honor, but he was ordered by

his wife to do it.

Q So, it was not only Fe de la Torre who wanted Butchoy to

have sex with you, Butchoy also wanted to do it?

PROSECUTOR GUAYCO:

A But he was also told by Fe de la Torre to have sex with me,

Your Honor.
Q But Butchoy did not complain that he did not want to have
sex with you?

Q Was there any touching of your breasts or squeezing

some parts of your body while he was having sex with you?
A Yes, Sir.
COURT:

A He did not complain, Your Honor.

Q Your breasts, for example?

xxx

A My nipple was fondled, Your Honor, by him.

Q That was before his penis was inserted in your vagina or

after?
A After, Your Honor.

A Yes, Sir.
Q What was the exact words uttered by Fe de la Torre?
A "Magpaluyo kaw sa kilid." (You move to the other side.)

PROSECUTOR GUAYCO;
Q Do you like what Fe de la Torre and Butchoy de la Torre did
to you?
A No, Sir.

COURT:
Q But the Court thought she was holding a lamp and a
scythe, so she was not lying anymore?
A She was seated between us, Your Honor.

COURT:
Q Did you not feel, while Butchoy de la Torres penis was
inside you and doing the push and pull if he finished his act?
A I did not feel, Your Honor.
Q He only suddenly stopped?
A Yes, Your Honor.33
Baby Jane never wavered in her testimony even under intense
cross-examination by the defense. She forthrightly answered the
questions and re-affirmed her attestations during the direct. The
cross-examination only served to clarify certain details in the
commission of the offense and reinforced the truth of her narration.

Q About the sexual intercourse, what was the command of

Fe de la Torre to Butchoy de la Torre?
A And then Fe de la Torre told him to undress or remove his
clothes, but Butchoy did not obey her. So, this Fe de la Torre
put down the scythe and the lamp which she was holding
and she was the one who removed the clothes of Butchoy
and my clothes.
Q And immediately upon removal of the clothes of Butchoy,
you saw the penis of Butchoy already?
A No, Your Honor.
Q You did not see him naked?

ATTY. PADON:

A I saw him naked but I did not focus my eyes to his penis.

Q Madam Witness, you were awakened by Fe de la Torre

before the intercourse?

Q Who was undressed first, Butchoy de la Torre or you?

A It was Butchoy, your Honor.

A Yes, Sir.
Q And you were already awaken (sic), you saw her holding a
lamp and a scythe?
A Yes, Sir.
Q And you said, Madam Witness, that Fe de la Torre told her
husband to rape you?

Q You did not resist when you were being undressed?

A I asked her why but she did not reply.
Q But you could feel that the private organ of Butchoy de la
Torre entered your body, is that right?

A Yes, Your Honor.

ATTY. PADON:
Q What was the position of Butchoy de la Torre when Fe de
la Torre removed his clothes?
A He was standing and after Fe de la Torre removed his
clothes, he sat down already.
Q How about you what was your position when Fe de la Torre
removed your clothes?
A I was still lying down and then she pulled me to stand up
and then she removed my clothes.
Q When you were already standing, you just allowed Fe de
la Torre to remove your clothes?
A I cannot resist because I was afraid, Sir. Even her husband
was also afraid.34
The trial court noted that Baby Jane was only sixteen years old
when the incidents occurred, and had barely finished the second
grade of elementary schooling. She was young, unlettered, and
unsophisticated. Given her background she was innocent in the
ways of the world and incapable of fabricating the charges of rape
against the appellants, and making up such a shocking tale of
sexual perversity.
Additionally, the defense has not imputed to her any ill motive to
indict the appellants with trumped up charges. The appellants have
categorically manifested that they had no quarrel with Baby Jane
and effectively erased any evil intention that may be attributed to
her. Their claim is that the charges were instigated by Baby Janes
father, Rafael Dagot. This is absurd. It is unnatural for a parent to
use her offspring as an engine of malice, especially if it will subject
her to embarrassment, and even stigma, as in this case. 35 In like
manner, a father would not subject his daughter to the indignities
of a rape trial just to evade payment of a debt.
The appellants even tried to show that Baby Jane was a girl of loose
morals, by having Rafael Dagots neighbor, Gloria Mijares, testify
that Baby Jane was already married to one Eddie Tabi and that Baby

Jane had lived with said Eddie Tabi for more than a year before
working for the appellants as a maid. But the witness testified to no
such thing, saying only that allegedly Eddie Tabi had proposed
marriage to Baby Jane but she refused him. 36 The testimony could
not even be given much credit for being hearsay.
Baby Janes behavior during and after the rape incidents reinforce
the trial courts findings of rape. She objected to Fes acts of
removing her clothes, but her resistance was restricted by her fear
of the appellants. The scythe that Fe held in her hands and threats
of bodily harm should she refuse effectively intimidated her into
submitting to Butchoys onslaught. Afterwards, she could tell no
one of the ordeal she had gone through as she was constantly
under Fes watchful eye. In addition, she did not know any of their
neighbors nor their neighborhood well enough to report the
incident. When the opportunity to escape presented itself, she took
it. She reported the matter to the authorities and this led to the
filing of the Amended Complaints against the appellants. Her
actions testify to the truth of her allegations of rape for a young girl
would not make up a story of sexual exploitation and undergo the
humiliation of a medical examination of her private parts and a
court trial that would dissect each and every aspect of the sexual
abuse committed against her if it were not true.37
But then, on the basis of the evidence adduced by the prosecution,
the appellants may be convicted only of the rape committed in the
first week of September 1992. The evidence for the prosecution
proves only the first charge of rape. Baby Janes testimony on the
commission of the eight other charges does not satisfy the
standard of proof beyond reasonable doubt to justify the
appellants conviction. We quote the transcript of the trial:
COURT:
Q You have just described your first sexual intercourse which
happened on September 1992, was it done to you again the
next week?
A It happened once every week, Your Honor.
PROSECUTOR GUAYCO:
Q How about on the second week of September 1992, did
this happen to you again?

A Yes, Sir, it happened again.

COURT:

Q This incident that transpired in the first week of

September 1992, did it happen again on the first week of
October 1992?

Q When?

A Yes, Sir.

A On the second week of September, Your Honor.

Q How about in the second week of October 1992, did it

happen again?

Q 1992 also?
A Yes, Sir.
Q It happened the same way as the first with the wife
holding a lamp and a scythe?
A Yes, Sir.
PROSECUTOR GUAYCO:

A Yes, Sir.
COURT:
Q The same thing happened where Fe de la Torre was
holding a scythe and a lamp?
A Yes, Your Honor.

Q How about the third week, did it happen again?

Q And what happened the first time, happened again

several times?

A Yes, Your Honor, the same thing happened again.

A Yes, Your Honor.

Q How about on the fourth week of September 1992, did it

happen again?

Q So, in the month of October 1992, how many times had

this Butchoy de la Torre have sex with you?

A The same, Sir.

A Once every week, Your Honor.

COURT:

Q So how many times?

Q It also happened on the fourth week?

A Four times, Your Honor.

A Yes, Your Honor.

Q So first, second, third and fourth week?

Q The same procedure? The same threats?

A Yes, Your Honor.

A Yes, Your Honor.

xxx

xxx

COURT:

POSECUTOR GUAYCO:

Q During the first intercourse and the second, did you feel
pain?

A Yes, Your Honor.

xxx

Q How about on the third time?

PROSECUTOR GUAYCO:

A It was not painful anymore.

Q Now, did this incident also happen in the second week of

December?

Q And subsequently, no more?

A Yes, Sir.

A No more, Your Honor.

COURT:
Q Why no more pain?

Q How about in November?

A I dont know but I did not feel pain anymore.

A There was none, Your Honor.
Q Is it because you already approved of the intercourse?

Q So you were free that November?

A No, Your Honor.

A Yes, Your Honor.
Q But you did not resist or struggle?
A I was between a woman and a man, Your Honor, I could
not struggle.

PROSECUTOR GUAYCO:
Q Now, in these nine incidents, did you really like what was
done to you by the accused?

Q But you did not resist or struggle?

A No, Sir.38
A I struggled but in vain, Your Honor.
Q Because you were afraid?
A I was afraid, Your Honor.
Q But Fe de la Torre did not injure you, why were you afraid?
A She was threatening me with that scythe that she would
strike me with that scythe.
Q So because you were afraid of physical harm you allowed
yourself to be used by Butchoy de la Torre?
A Yes, Your Honor, because despite my struggle Fe de la
Torre was there, armed.

Each and every charge of rape is a separate and distinct crime;

hence, each of the eight other rape charges should be proven
beyond reasonable doubt. The prosecution is required to establish,
by the necessary quantum of proof, the elements of rape for each
charge.39 Baby Janes testimony on the first rape charge was
explicit, detailing the participation of each appellant in the offense
and clearly illustrating all the elements of the offense of rape.
However her simple assertion that the subsequent rapes occurred
in exactly the same manner as in previous incidents is clearly
inadequate and grossly insufficient to establish to a degree of
moral certainty the guilt of the appellants insofar as the eight rape
charges are concerned. Her testimony was too general as it failed
to focus on material details as to how each of the subsequent acts
was committed. Even her testimony on cross-examination did not
add anything to support her accusations of subsequent rape. Thus,
only the rape alleged to have been committed on September 1992

was proven beyond reasonable doubt and the appellants may be

penalized only for this offense.
Article 335 of the Revised Penal Code provides that whenever the
crime of rape is committed with the use of a deadly weapon the
penalty is reclusion perpetua to death. The use by the appellants of
a bladed weapon, alleged in the Amended Complaint and
sufficiently proven in this case, qualifies the rape. 40 In the absence
of any mitigating or aggravating circumstance, the penalty that the
appellants shall suffer is the lesser penalty ofreclusion perpetua.41
In accordance with jurisprudential law, the complainant in a rape
case is entitled to civil indemnity, which is actually in the nature of
actual or compensatory damages, in the amount of P50,000.00, as
well as moral damages in the amount of P50,000.00. Civil
indemnity42 and moral damages43 are automatically granted once
the fact of rape has been established. Exemplary damages are
awarded under Article 2230 of the Civil Code if there is an
aggravating circumstance, whether ordinary or qualifying. Since the
commission of the rape was attended by the qualifying
circumstance of use of a deadly weapon, exemplary damages
of P25,000.00 should also be given to the complainant. 44
WHEREFORE, the judgment of the Regional Trial Court of Palawan
and Puerto Princesa City is MODIFIED. In Criminal Case No. 11199,
the appellants are found GUILTY beyond reasonable doubt of rape
qualified with the use of a deadly weapon and are accordingly
sentenced to suffer the penalty of reclusion perpetua and ordered
to indemnify the offended party the sum of Fifty Thousand Pesos
(P50,000.00) as civil indemnity, Fifty Thousand Pesos (P50,000,00)
as moral damages and Twenty-five Thousand Pesos (P25,000.00) as
exemplary damages. With respect to Criminal Cases No. 11313 to
No. 11320, the appellants are ACQUITTED for failure of the
prosecution to prove their guilt beyond reasonable doubt.
SO ORDERED.

G.R. No. L-162

April 30, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DIOSCORO ALCONGA and ADOLFO BRACAMONTE,
defendants. DIOSCORO ALCONGA, appellant.
HILADO, J.:
On the night of May 27, 1943, in the house of one Mauricio Jepes in
the Municipality of San Dionisio, Province of Iloilo several persons
were playing prohibited games (t.s.n., pp. 95, 125). The deceased
Silverio Barion was the banker in the game of black jack, and Maria
de Raposo, a witness for the prosecution, was one of those playing

the game (t.s.n., p. 95). Upon invitation of the said Maria de

Raposo, the accused Dioscoro Alconga joined her as a partner, each
of them contributing the sum of P5 to a common fund (t.s.n., pp.
95, 125). Maria de Raposo played the game while the said accused
posted himself behind the deceased, acting as a spotter of the
cards of the latter and communicating by signs to his partner
(t.s.n., pp. 95-96, 126). The deceased appears to have suffered
losses in the game because of the team work between Maria de
Raposo and the accused Alconga (t.s.n., pp. 96, 126). Upon
discovering what the said accused had been doing, the deceased
became indignant and expressed his anger at the former (t.s.n., pp.
96, 126). An exchange of words followed, and the two would have
come to blows but for the intervention of the maintainer of the
games (t.s.n., p. 96). In a fit of anger, the deceased left the house
but not before telling the accused Alconga, "tomorrow morning I
will give you a breakfast" (t.s.n., p. 96), which expression would
seem to signify an intent to inflict bodily harm when uttered under
such circumstances.

San Dionisio, placed under his custody the accused Alconga with a
view to turning him over to the proper authorities (t.s.n., pp. 102105).

The deceased and the accused Alconga did not meet thereafter
until the morning of May 29, 1943, when the latter was in the
guardhouse located in the barrio of Santol, performing his duties as
"home guard" (t.s.n., pp. 98-100). While the said accused was
seated on a bench in the guardhouse, the deceased came along
and, addressing the former, said, "Coroy, this is your breakfast,"
followed forthwith by a swing of his "pingahan" (t.s.n., p. 100). The
accused avoided the blow by falling to the ground under the bench
with the intention to crawl out of the guardhouse (t.s.n., pp. 100101). A second blow was given but failed to hit the accused, hitting
the bench instead (t.s.n., p. 101). The accused manage to go out of
the guardhouse by crawling on his abdomen (t.s.n., p. 101). While
the deceased was in the act of delivering the third blow, the
accused, while still in a crawling position (t.s.n., p. 119), fired at
him with his revolver, causing him to stagger and to fall to the
ground (t.s.n., p. 101). Rising to his feet, the deceased drew forth
his dagger and directed a blow at the accused who, however, was
able to parry the same with his bolo (t.s.n., pp. 101-102). A handto-hand fight ensued (t.s.n., p. 102). Having sustained several
wounds, the deceased ran away but was followed by the accused
(t.s.n., p. 6). After running a distance of about 200 meters (t.s.n.,
pp. 21, 108), the deceased was overtaken, and another fight took
place, during which the mortal bolo blow the one which slashed
the cranium was delivered, causing the deceased to fall to the
ground, face downward, besides many other blows deliver right and
left (t.s.n., pp. 6, 28). At this instant, the other accused, Adolfo
Bracamonte, arrived and, being the leader of the "home guards" of

P. Donde ha encontrado usted las heridas, en que parte del

cuerpo? R. En la cabeza, en sus brazos, en sus manos, en
la mandibula inferior, en la parte frente de su cuello, en su
pecho derecho, y tambien en el pecho izquierdo, y su dedo
meique habia volado, se habia cortado, y otras perqueas
heridas mas.

On their way to San Dionisio, the two accused were stopped by

Juan Collado, a guerrilla soldier (t.s.n., pp. 80, 104). Adolfo
Bracamonte turned over Alconga to Collado who in turn took him to
the headquarters (t.s.n., pp. 81, 104). In the afternoon of the same
day, Collado delivered Alconga to Gregorio Barredo, a municipal
policeman of San Dionisio, together with the weapons used in the
fight: a revolver, a bolo, and a dagger (t.s.n., pp. 81, 104).
The injuries sustained by the deceased were described by police
sergeant Gil G. Estaniel as follows:
P. Y que hicieron ustedes cuando ustedes vieron a Silverio
Barion? R. Examine sus heridas.

P. En la cabeza, vio usted heridas? R. Si, seor.

P. Cuantas heridas? R. Una herida en la region parietal
derecha y una contusion en la corona de la cabeza.
P. Vio usted el craneo? R. En la craneo llevaba una
herida, en quel el craneo se ha roto.
P. En el pecho, herida ha encontrado usted? R. Debajo de
la tetilla derecha, una herida causada por una bala.
P. Y otras heridas en el pecho, puede usted decir que clase
de heridas? R. Heridas causadas por bolo.
P. Como de grande acquellas heridas en el pecho? R. No
recuerdo la dimension de las heridas en el pecho.
P. Pero en la cabeza? R. La cabeza se rajo por aquella
herida causada por el bolo. (T.s.n., p. 25.)

It will be observed that there were two stages in the fight between
appellant and the deceased. The initial stage commenced when the
deceased assaulted appellant without sufficient provocation on the
part of the latter. Resisting the aggression, appellant managed to
have the upper hand in the fight, inflicting several wounds upon the
deceased, on account of which the latter fled in retreat. From that
moment there was no longer any danger to the life of appellant
who, being virtually unscathed, could have chosen to remain where
he was. Resolving all doubts in his flavor, and considering that in
the first stage the deceased was the unlawful aggressor and
defendant had not given sufficient provocation, and considering
further that when the deceased was about to deliver the third blow,
appellant was still in a crawling position and, on that account, could
not have effectively wielded his bolo and therefore had to use his
"paltik" revolver his only remaining weapon ; we hold that said
appellant was then acting in self-defense.
But when he pursued the deceased, he was no longer acting in selfdefense, there being then no more aggression to defend against,
the same having ceased from the moment the deceased took to his
heels. During the second stage of the fight appellant inflicted many
additional wounds upon the deceased. That the deceased was not
fatally wounded in the first encounter is amply shown by the fact
that he was still able to run a distance of some 200 meters before
being overtaken by appellant. Under such circumstances,
appellant's plea of self-defense in the second stage of the fight
cannot be sustained. There can be no defense where there is no
aggression.
Although the defendant was not the aggressor, he is not
exempt from criminal liability for the reason that it is shown
that he struck several blows, among them the fatal one,
after the necessity for defending himself had ceased, his
assailant being then in retreat. Therefore one of the
essential ingredients of self-defense specified in No. 4,
article 8 of the Penal Code is wanting (now article 11, case
No. 1, Revised Penal Code). (United States vs. Dimitillo, 7
Phil., 475, 476; words in parenthesis supplied.)
. . . Even if it be conceded for the moment that the
defendants were assaulted by the four (offended parties),
the right to kill in self-defense ceased when the aggression
ceased; and when Toledo and his brothers turned and ran,
without having inflicted so much as a scratch upon a single
one of the defendants,the right of the defendants to inflict

injury upon them ceased absolutely. They had no right to

pursue, no right to kill or injure. A fleeing man is not
dangerous to the one from whom he flees. When danger
ceases, the right to injure ceases. When the aggressor turns
and flees, the one assaulted must stay his hand. (United
States vs. Vitug, 17 Phil., 1, 19; emphasis supplied.)
Upon the foregoing facts, we hold that appellant's guilt of the crime
of homicide has been established beyond reasonable doubt. The
learned trial court appreciated in his favor of two mitigating
circumstances: voluntary surrender and provocation on the part of
the deceased. The first was properly appreciated; the second was
not, since it is very clear that from the moment he fled after the
first stage of the fight to the moment he died, the deceased did not
give any provocation for appellant to pursue much less further to
attack him.
The only provocation given by him was imbibed in, and inseparable
from, the aggression with which he started the first stage of the
fight. The evidence, as weighed and appreciated by the learned
trial judge, who had heard, seen and observed the witnesses
testify, clearly shows that said stage ended with the flight of the
deceased after receiving a bullet wound in his right breast, which
caused him to stagger and fall to the ground, and several bolo
wounds inflicted by appellant during their hand-to-hand fight after
both had gotten up. The learned trial judge said:
The evidence adduced by the prosecution and the defense
in support of their respective theories of the case vary
materially on certain points. Some of these facts have to be
admitted and some have to be rejected with the end in view
of arriving at the truth. To the mind of the Court, what really
happened in the case at bar, as can de disclosed by the
records, which lead to the killing of the deceased on that
fatal morning of May 29, 1945 (should be 1943), is as
follows:
xxx

xxx

xxx

In the morning of May 29, 1943, while Dioscoro Alconga was

alone in the guardhouse performing his duties as guard or
"ronda" in Barrio Santol, the deceased Silverio Barion
passed by with a "pingahan". That was the first time the
deceased and the accused Alconga had met since that
eventful night of May 27th in the gambling house of Gepes.

Upon seeing the accused Alconga, who was then seated in

the guardhouse, the deceased cried: "Coroy, this is now the
breakfast!" These words of warning were immediately
followed by two formidable swings of the "pingahan"
directed at the accused Alconga which failed to hit him.
Alconga was able to avoid the blows by falling to the ground
and crawling on his abdomen until he was outside the
guardhouse. The deceased followed him and while in the act
of delivering the third blow, Dioscoro Alconga fired at him
with his revolver thereby stopping the blow in mid-air. The
deceased fell to the ground momentarily and upon rising to
his feet, he drew forth a dagger. The accused Alconga
resorted to his bolo and both persons being armed, a handto-hand fight followed. The deceased having sustained
several wounds from the hands of Alconga, ran away with
the latter close to his heels.
The foregoing statement of the pertinent facts by the learned trial
judge is in substantial agreement with those found by us and
narrated in the first paragraphs of this decision. Upon those facts
the question arises whether when the deceased started to run and
flee, or thereafter until he died, there was any provocation given by
him from appellant to pursue and further to attack him. It will be
recalled, to be given with, that the first stage of the fight was
provoked when the deceased said to appellant "Cory, this is now
the breakfast," or "This is your breakfast," followed forthwith by a
swing or two of his "pingahan." These words without the
immediately following attack with the "pingahan" would not have
been uttered, we can safely assume, since such an utterance alone
would have been entirely meaningless. It was the attack, therefore,
that effectively constituted the provocation, the utterance being, at
best, merely a preclude to the attack. At any rate, the quoted
words by themselves, without the deceased's act immediately
following them, would certainly not have been considered a
sufficient provocation to mitigate appellant's liability in killing or
injuring the deceased. For provocation in order to be a mitigating
circumstance must be sufficient and immediately preceding the
act. (Revised Penal Code, article 13, No. 4.)
Under the doctrine in United States vs. Vitug, supra, when the
deceased ran and fled without having inflicted so much as a
scratch upon appellant, but after, upon the other hand, having
been wounded with one revolver shot and several bolo slashes, as
aforesaid, the right of appellant to inflict injury upon him, ceased
absolutely appellant "had no right to pursue, no right to kill or

injure" said deceased for the reason that "a fleeing man is not
dangerous to the one from whom he flees." If the law, as
interpreted and applied by this Court in the Vitug case, enjoins the
victorious contender from pursuing his opponent on the score of
self-defense, it is because this Court considered that the requisites
of self-defense had ceased to exist, principal and indispensable
among these being the unlawful aggression of the opponent (Rev.
Penal Code, article 11, No. 1; 1 Viada, 5th ed., 173).
Can we find under the evidence of record that after the cessation of
said aggression the provocation thus involved therein still
persisted, and to a degree sufficient to extenuate appellant's
criminal responsibility for his acts during the second stage of the
fight? Appellant did not testify nor offer other evidence to show that
when he pursued the deceased he was still acting under the
impulse of the effects of what provocation, be it anger, obfuscation
or the like. The Revised Penal Code provides:
ART. 13. Mitigating circumstances:
xxx

xxx

xxx

4. That sufficient provocation or threat on the part of the

offended party immediately preceded the act.
It is therefore apparent that the Code requires for provocation to be
such a mitigating circumstance that it not only immediately
precede the act but that it also be sufficient. In the Spanish Penal
Code, the adjective modifying said noun is "adecuada" and the
Supreme Court of Spain in its judgment of June 27, 2883,
interpreted the equivalent provision of the Penal Code of that
country, which was the source of our own existing Revised Penal
Code, that "adecuada" means proportionate to the damage caused
by the act. Viada (Vol. 11, 5th ed., p. 51) gives the ruling of that
Supreme Court as follows:
El
Tribunal
Supremo
ha
declarado
que
la provocacion o amenaza que de parte del ofendido ha de
preceder para la disminucion de la responsabilidad criminal
debe ser proporcionada al dao que se cause, lo cual no
concurre a favor del reo si resulta que la unica cuestion que
hubo fue si en un monton de yeso habia mas omenos
cantidad, y como perdiera la apuesta y bromeando dijera el
que la gano que beberia vino de balde, esa pequea
cuestion de amor propio no justificaba en modo alguno la ira

que le impelio a herir y matar a su contrario. (S. de 27 de

junio de 1883, Gaceta de 27 de septiembre.)
Justice Albert, in his commentaries on the Revised Penal Code,
1946 edition, page 94, says: "The provocation or threat must be
sufficient, which means that it should be proportionate to the act
committed and adequate to stirone to its commission" (emphasis
supplied).
Sufficient provocation, being a matter of defense, should, like any
other, be affirmatively proven by the accused. This the instant
appellant has utterly failed to do. Any way, it would seem selfevident that appellant could never have succeeded in showing that
whatever remained of the effects of the deceased's aggression, by
way of provocation after the latter was already in fight, was
proportionate to his killing his already defeated adversary.
That provocation gave rise to a fight between the two men, and
may be said, not without reason, to have spent itself after appellant
had shot the deceased in his right breast and caused the latter to
fall to the ground; or making a concession in appellant's favor
after the latter had inflicted several bolo wounds upon the
deceased, without the deceased so much as having scratched his
body, in their hand-to-hand fight when both were on their feet
again. But if we are to grant appellant a further concession, under
the view most favorable to him, that aggression must be deemed
to have ceased upon the flight of the deceased upon the end of
the first stage of the fight. In so affirming, we had to strain the
concept in no small degree. But to further strain it so as to find that
said aggression or provocation persisted even when the deceased
was already in flight, clearly accepting defeat and no less clearly
running for his life rather than evincing an intention of returning to
the fight, is more than we can sanction. It should always be
remembered that "illegal aggression is equivalent to assault or at
least threatened assault of an immediate and imminent kind.
Agresion
ilegitima.
Agresion
vale
tanto
como
acometimiento. Para que exista el derecho de defensa es
preciso que se nos acometa, que se nos ataque, o cuando
menos, que se nos amenace de atacarnos de un modo
inmediato e inminente; v. gr., desenvainando el pual para
herirnos con el o apuntando la pistola para dispararla contra
nosotros. (Viada, 5. a edicion, 173.)

After the flight of the deceased there was clearly neither an assault
nor a threatened assault of the remotest kind. It has been
suggested that when pursuing his fleeing opponent, appellant
might have thought or believed that said opponent was going to his
house to fetch some other weapon. But whether we consider this as
a part or continuation of the self-defense alleged by appellant, or as
a separate circumstance, the burden of proof to establish such a
defense was, of course, upon appellant, and he has not so much as
attempted to introduce evidence for this purpose. If he really
thought so, or believed so, he should have positively proven it, as
any other defense. We can not now gratuitously assume it in his
behalf.
It is true that in the case of United States vs. Rivera (41 Phil., 472,
474), this Court held that one defending himself or his property
from a felony violently or by surprise threatened by another is not
obliged to retreat but may pursue his adversary until he has
secured himself from danger. But that is not this case. Here from
the very start appellant was the holder of the stronger and more
deadly weapons a revolver and a bolo, as against a piece of
bamboo called "pingahan" and a dagger in the possession of the
deceased. In actual performance appellant, from the very
beginning, demonstrated his superior fighting ability; and he
confirmed it when after the deceased was first felled down by the
revolver shot in right breast, and after both combatants had gotten
up and engaged in a hand-to-hand fight, the deceased using his
dagger and appellant his bolo, the former received several bolo
wounds while the latter got through completely unscathed. And
when the deceased thereupon turned and fled, the circumstances
were such that it would be unduly stretching the imagination to
consider that appellant was still in danger from his defeated and
fleeing opponent. Appellant preserved his revolver and his bolo,
and if he could theretofore so easily overpower the deceased, when
the latter had not yet received any injury, it would need, indeed, an
unusually strong positive showing which is completely absent
from the record to persuade us that he had not yet "secured
himself from danger" after shooting his weakly armed adversary in
the right breast and giving him several bolo slashes in different
other parts of his body. To so hold would, we believe, be
unjustifiably extending the doctrine of the Rivera case to an
extreme not therein contemplated.
Under article 249, in relation with article 64, No. 2, of the Revised
Penal Code, the crime committed by appellant is punishable
by reclusion temporal in its minimum period, which would be from

12 years and 1 day to 14 years and 8 months. However, in

imposing the penalty, we take into consideration the provisions of
section 1 of the Indeterminate Sentence Law (Act No. 4103), as
amended by Act No. 4225. Accordingly, we find appellant guilty of
the aforesaid crime of homicide and sentence him to an
indeterminate penalty of from 6 years and 1 day of prision
mayor to 14 years and 8 months of reclusion temporal, to
indemnify the heirs of the deceased in the sum of P2,000, and to
pay the costs.
As thus modified, the judgment appealed from is hereby affirmed.
So ordered.

penalty ranging from seven years, four months and one day of
prision mayor to thirteen years, nine months and eleven days of
reclusion temporal, with the accessory penalties provided by law,
to indemnify the heirs of the deceased, Amando Capina, in the sum
of P2,000, and to pay one-half of the costs. She was also credited
with one-half of the period of preventive imprisonment suffered by
her.
From said judgment of conviction, defendant Avelina Jaurigue
appealed to the Court of Appeals for Southern Luzon, and in her
brief filed therein on June 10, 1944, claimed (1) That the lower court erred in not holding that said
appellant had acted in the legitimate defense of her honor
and that she should be completely absolved of all criminal
responsibility;
(2) That the lower court erred in not finding in her favor the
additional mitigating circumstances that (a) she did not
have the intention to commit so grave a wrong as that
actually committed, and that (b) she voluntarily surrendered
to the agents of the authorities; and
(3) That the trial court erred in holding that the commission
of the alleged offense was attended by the aggravating
circumstance of having been committed in a sacred place.
The evidence adduced by the parties, at the trial in the court
below, has sufficiently established the following facts:

DE JOYA, J.:

That both the defendant and appellant Avelina Jaurigue and the
deceased Amado Capina lived in the barrio of Sta. Isabel, City of
San Pablo, Province of Laguna; that for sometime prior to the
stabbing of the deceased by defendant and appellant, in the
evening of September 20, 1942, the former had been courting the
latter in vain, and that on one occasion, about one month before
that fatal night, Amado Capina snatched a handkerchief belonging
to her, bearing her nickname "Aveling," while it was being washed
by her cousin, Josefa Tapay.

Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court

of First Instance of Tayabas, for the crime of murder, of which
Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue was
found guilty of homicide and sentenced to an indeterminate

On September 13, 1942, while Avelina was feeding a dog under her
house, Amado approached her and spoke to her of his love, which
she flatly refused, and he thereupon suddenly embraced and kissed
her and touched her breasts, on account of which Avelina, resolute

C.A. No. 384

February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.

and quick-tempered girl, slapped Amado, gave him fist blows and
kicked him. She kept the matter to herself, until the following
morning when she informed her mother about it. Since then, she
armed herself with a long fan knife, whenever she went out,
evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the
house of defendant and appellant, and surreptitiously entered the
room where she was sleeping. He felt her forehead, evidently with
the intention of abusing her. She immediately screamed for help,
which awakened her parents and brought them to her side. Amado
came out from where he had hidden under a bed in Avelina's room
and kissed the hand of Nicolas Jaurigue, her father, asking for
forgiveness; and when Avelina's mother made an attempt to beat
Amado, her husband prevented her from doing so, stating that
Amado probably did not realize what he was doing. Nicolas Jaurigue
sent for the barrio lieutenant, Casimiro Lozada, and for Amado's
parents, the following morning. Amado's parents came to the house
of Nicolas Jaurigue and apologized for the misconduct of their son;
and as Nicolas Jaurigue was then angry, he told them to end the
conversation, as he might not be able to control himself.
In the morning of September 20, 1942, Avelina received
information that Amado had been falsely boasting in the
neighborhood of having taken liberties with her person and that she
had even asked him to elope with her and that if he should not
marry her, she would take poison; and that Avelina again received
information of Amado's bragging at about 5 o'clock in the afternoon
of that same day.
At about 8 o'clock in the evening of the same day, September 20,
1942, Nicolas Jaurigue went to the chapel of the Seventh Day
Adventists of which he was the treasurer, in their barrio, just across
the provincial road from his house, to attend religious services, and
sat on the front bench facing the altar with the other officials of the
organization and the barrio lieutenant, Casimiro Lozada. Inside the
chapel it was quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel
shortly after the arrival of her father, also for the purpose of
attending religious services, and sat on the bench next to the last
one nearest the door. Amado Capina was seated on the other side
of the chapel. Upon observing the presence of Avelina Jaurigue,
Amado Capina went to the bench on which Avelina was sitting and
sat by her right side, and, without saying a word, Amado, with the

greatest of impudence, placed his hand on the upper part of her

right thigh. On observing this highly improper and offensive
conduct of Amado Capina, Avelina Jaurigue, conscious of her
personal dignity and honor, pulled out with her right hand the fan
knife marked Exhibit B, which she had in a pocket of her dress, with
the intention of punishing Amado's offending hand. Amado seized
Avelina's right hand, but she quickly grabbed the knife with her left
hand and stabbed Amado once at the base of the left side of the
neck, inflicting upon him a wound about 4 1/2 inches deep, which
was necessarily mortal. Nicolas Jaurigue, who was seated on one of
the front benches, saw Amado bleeding and staggering towards the
altar, and upon seeing his daughter still holding the bloody knife,
he approached her and asked: "Why did you do that," and
answering him Avelina said: "Father, I could not endure anymore."
Amado Capina died from the wound a few minutes later. Barrio
lieutenant Casimiro Lozada, who was also in the same chapel,
approached Avelina and asked her why she did that, and Avelina
surrendered herself, saying: "Kayo na po ang bahala sa aquin,"
meaning: "I hope you will take care of me," or more correctly, "I
place myself at your disposal." Fearing that Amado's relatives
might retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue
and herein defendant and appellant to go home immediately, to
close their doors and windows and not to admit anybody into the
house, unless accompanied by him. That father and daughter went
home and locked themselves up, following instructions of the barrio
lieutenant, and waited for the arrival of the municipal authorities;
and when three policemen arrived in their house, at about 10
o'clock that night, and questioned them about the incident,
defendant and appellant immediately surrendered the knife marked
as Exhibit B, and informed said policemen briefly of what had
actually happened in the chapel and of the previous acts and
conduct of the deceased, as already stated above, and went with
said policemen to the police headquarters, where her written
statements were taken, and which were presented as a part of the
evidence for the prosecution.
The high conception of womanhood that our people possess,
however humble they may be, is universal. It has been entertained
and has existed in all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure;
and that a virtuous woman represents the only true nobility. And
they are the future wives and mothers of the land. Such are the
reasons why, in the defense of their honor, when brutally attacked,
women are permitted to make use of all reasonable means

available
within
their
reach,
under
the
circumstances.
Criminologists and courts of justice have entertained and upheld
this view.
On the other hand, it is the duty of every man to protect and show
loyalty to womanhood, as in the days of chivalry. There is a country
where women freely go out unescorted and, like the beautiful roses
in their public gardens, they always receive the protection of all.
That country is Switzerland.
In the language of Viada, aside from the right to life on which rests
the legitimate defense of our own person, we have the right to
property acquired by us, and the right to honor which is not the
least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp.
172, 173).
The attempt to rape a woman constitutes an unlawful aggression
sufficient to put her in a state of legitimate defense, inasmuch as a
woman's honor cannot but be esteemed as a right as precious, if
not more, than her very existence; and it is evident that a woman
who, thus imperiled, wounds, nay kills the offender, should be
afforded exemption from criminal liability, since such killing cannot
be considered a crime from the moment it became the only means
left for her to protect her honor from so great an outrage (1 Viada,
Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62
Phil., 504). .
As long as there is actual danger of being raped, a woman is
justified in killing her aggressor, in the defense of her honor. Thus,
where the deceased grabbed the defendant in a dark night at about
9 o'clock, in an isolated barrio trail, holding her firmly from behind,
without warning and without revealing his identity, and, in the
struggle that followed, touched her private parts, and that she was
unable to free herself by means of her strength alone, she was
considered justified in making use of a pocket knife in repelling
what she believed to be an attack upon her honor, and which
ended in his death, since she had no other means of defending
herself, and consequently exempt from all criminal liability (People
vs. De la Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in
inflicting wounds on her assailant with a bolo which she happened
to be carrying at the time, even though her cry for assistance might
have been heard by people nearby, when the deceased tried to
assault her in a dark and isolated place, while she was going from

her house to a certain tienda, for the purpose of making purchases

(United States vs. Santa Ana and Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at
night by someone touching her arm, and, believing that some
person was attempting to abuse her, she asked who the intruder
was and receiving no reply, attacked and killed the said person with
a pocket knife, it was held that, notwithstanding the woman's belief
in the supposed attempt, it was not sufficient provocation or
aggression to justify her completely in using deadly weapon.
Although she actually believed it to be the beginning of an attempt
against her, she was not completely warranted in making such a
deadly assault, as the injured person, who turned out to be her own
brother-in-law returning home with his wife, did not do any other
act which could be considered as an attempt against her honor
(United States vs. Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed Amado
Capina, when the latter climbed up her house late at night on
September 15, 1942, and surreptitiously entered her bedroom,
undoubtedly for the purpose of raping her, as indicated by his
previous acts and conduct, instead of merely shouting for help, she
could have been perfectly justified in killing him, as shown by the
authorities cited above..
According to the facts established by the evidence and found by
the learned trial court in this case, when the deceased sat by the
side of defendant and appellant on the same bench, near the door
of the barrio chapel and placed his hand on the upper portion of her
right thigh, without her consent, the said chapel was lighted with
electric lights, and there were already several people, about ten of
them, inside the chapel, including her own father and the barrio
lieutenant and other dignitaries of the organization; and under the
circumstances, there was and there could be no possibility of her
being raped. And when she gave Amado Capina a thrust at the
base of the left side of his neck, inflicting upon him a mortal wound
4 1/2 inches deep, causing his death a few moments later, the
means employed by her in the defense of her honor was evidently
excessive; and under the facts and circumstances of the case, she
cannot be legally declared completely exempt from criminal
liability..
But the fact that defendant and appellant immediately and
voluntarily and unconditionally surrendered to the barrio lieutenant
in said chapel, admitting having stabbed the deceased,

immediately after the incident, and agreed to go to her house

shortly thereafter and to remain there subject to the order of the
said barrio lieutenant, an agent of the authorities (United States vs.
Fortaleza, 12 Phil., 472); and the further fact that she had acted in
the immediate vindication of a grave offense committed against
her a few moments before, and upon such provocation as to
produce passion and obfuscation, or temporary loss of reason and
self-control, should be considered as mitigating circumstances in
her favor (People vs. Parana, 64 Phil., 331; People vs. Sakam, 61
Phil., 27; United States vs. Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended
to kill the deceased but merely wanted to punish his offending hand
with her knife, as shown by the fact that she inflicted upon him only
one single wound. And this is another mitigating circumstance
which should be considered in her favor (United States vs. Brobst,
14 Phil., 310; United States vs. Diaz, 15 Phil., 123).
The claim of the prosecution, sustained by the learned trial court,
that the offense was committed by the defendant and appellant,
with the aggravating circumstance that the killing was done in a
place dedicated to religious worship, cannot be legally sustained;
as there is no evidence to show that the defendant and appellant
had murder in her heart when she entered the chapel that fatal
night. Avelina is not a criminal by nature. She happened to kill
under the greatest provocation. She is a God-fearing young woman,
typical of our country girls, who still possess the consolation of
religious hope in a world where so many others have hopelessly
lost the faith of their elders and now drifting away they know not
where.

should be accorded the most liberal consideration possible under

the law (United States vs. Apego, 23 Phil., 391; United States vs.
Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950)..
The law prescribes the penalty of reclusion temporal for the crime
of homicide; and if it should be reduced by two degrees, the
penalty to be imposed in the instant case is that of prision
correccional; and pursuant to the provisions of section 1 of Act No.
4103 of the Philippine Legislature, known as the Indeterminate
Sentence Law, herein defendant and appellant should be sentenced
to an indeterminate penalty ranging from arresto mayor in its
medium degree, to prision correccional in its medium degree.
Consequently, with the modification of judgment appealed from,
defendant and appellant Avelina Jaurigue is hereby sentenced to an
indeterminate penalty ranging from two months and one day of
arresto mayor, as minimum, to two years, four months, and one
day ofprision correccional, as maximum, with the accessory
penalties prescribed by law, to indemnify the heirs of the deceased
Amado Capina, in the sum of P2,000, and to suffer the
corresponding subsidiary imprisonment, not to exceed 1/3 of the
principal penalty, in case of insolvency, and to pay the costs.
Defendant and appellant should also be given the benefit of 1/2 of
her preventive imprisonment, and the knife marked Exhibit B
ordered confiscated. So ordered..
G.R. No. 135981

January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

The questions raised in the second and third assignments of error

appear, therefore, to be well taken; and so is the first assignment of
error to a certain degree.

DECISION

In the mind of the court, there is not the least doubt that, in
stabbing to death the deceased Amado Capina, in the manner and
form and under the circumstances above indicated, the defendant
and appellant committed the crime of homicide, with no
aggravating circumstance whatsoever, but with at least three
mitigating circumstances of a qualified character to be considered
in her favor; and, in accordance with the provisions of article 69 of
the Revised Penal Code, she is entitled to a reduction by one or two
degrees in the penalty to be imposed upon her. And considering the
circumstances of the instant case, the defendant and appellant

Admitting she killed her husband, appellant anchors her prayer for
acquittal on a novel theory -- the "battered woman syndrome"
(BWS), which allegedly constitutes self-defense. Under the proven
facts, however, she is not entitled to complete exoneration because
there was no unlawful aggression -- no immediate and unexpected
attack on her by her batterer-husband at the time she shot him.

PANGANIBAN, J.:

Absent unlawful aggression, there can be no self-defense, complete

or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on

appellant constituted a form of cumulative provocation that broke
down her psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her will power,
thereby entitling her to the mitigating factor under paragraphs 9
and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating
circumstance of having acted upon an impulse so powerful as to
have naturally produced passion and obfuscation. The acute
battering she suffered that fatal night in the hands of her battererspouse, in spite of the fact that she was eight months pregnant
with their child, overwhelmed her and put her in the aforesaid
emotional and mental state, which overcame her reason and
impelled her to vindicate her life and her unborn child's.

The Information3 charged appellant with parricide as follows:

"That on or about the 15th day of November 1995, at
Barangay Bilwang, Municipality of Isabel, Province of Leyte,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, with
treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault, hit and
wound one BEN GENOSA, her legitimate husband, with the
use of a hard deadly weapon, which the accused had
provided herself for the purpose, [causing] the following
wounds, to wit:
'Cadaveric spasm.
'Body on the 2nd stage of decomposition.

Considering the presence of these two mitigating circumstances

arising from BWS, as well as the benefits of the Indeterminate
Sentence Law, she may now apply for and be released from
custody on parole, because she has already served the minimum
period of her penalty while under detention during the pendency of
this case.

'Face, black, blownup & swollen w/ evident postmortem lividity. Eyes protruding from its sockets and
tongue slightly protrudes out of the mouth.
'Fracture, open, depressed, circular located at the
occipital bone of the head, resulting [in] laceration of
the brain, spontaneous rupture of the blood vessels
on the posterior surface of the brain, laceration of
the dura and meningeal vessels producing severe
intracranial hemorrhage.

The Case
For automatic review before this Court is the September 25, 1998
Decision1 of the Regional Trial Court (RTC) of Ormoc City (Branch
35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide. The decretal portion of the
Decision reads:
"WHEREFORE, after all the foregoing being duly considered,
the Court finds the accused, Marivic Genosa y Isidro, GUILTY
beyond reasonable doubt of the crime of Parricide as
provided under Article 246 of the Revised Penal Code as
restored by Sec. 5, RA No. 7659, and after finding treachery
as a generic aggravating circumstance and none of
mitigating circumstance, hereby sentences the accused with
the penalty of DEATH.
"The Court likewise penalizes the accused to pay the heirs of
the deceased the sum of fifty thousand pesos (P50,000.00),
Philippine currency as indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine currency as moral
damages."2

'Blisters at both extrem[i]ties, anterior chest,

posterior chest, trunk w/ shedding of the epidermis.
'Abdomen distended w/ gas. Trunk bloated.'
which caused his death."4
With the assistance of her counsel,5 appellant pleaded not guilty
during her arraignment on March 3, 1997. 6 In due course, she was
tried for and convicted of parricide.
The Facts
Version of the Prosecution

The Office of the Solicitor General (OSG)

prosecution's version of the facts in this wise:

summarizes

the

"Appellant and Ben Genosa were united in marriage on

November 19, 1983 in Ormoc City. Thereafter, they lived
with the parents of Ben in their house at Isabel, Leyte. For a
time, Ben's younger brother, Alex, and his wife lived with
them too. Sometime in 1995, however, appellant and Ben
rented from Steban Matiga a house at Barangay Bilwang,
Isabel, Leyte where they lived with their two children,
namely: John Marben and Earl Pierre.
"On November 15, 1995, Ben and Arturo Basobas went to a
cockfight after receiving their salary. They each had two (2)
bottles of beer before heading home. Arturo would pass
Ben's house before reaching his. When they arrived at the
house of Ben, he found out that appellant had gone to
Isabel, Leyte to look for him. Ben went inside his house,
while Arturo went to a store across it, waiting until 9:00 in
the evening for the masiaorunner to place a bet. Arturo did
not see appellant arrive but on his way home passing the
side of the Genosas' rented house, he heard her say 'I won't
hesitate to kill you' to which Ben replied 'Why kill me when I
am innocent?' That was the last time Arturo saw Ben alive.
Arturo also noticed that since then, the Genosas' rented
house appeared uninhabited and was always closed.
"On November 16, 1995, appellant asked Erlinda Paderog,
her close friend and neighbor living about fifty (50) meters
from her house, to look after her pig because she was going
to Cebu for a pregnancy check-up. Appellant likewise asked
Erlinda to sell her motorcycle to their neighbor Ronnie
Dayandayan who unfortunately had no money to buy it.
"That same day, about 12:15 in the afternoon, Joseph Valida
was waiting for a bus going to Ormoc when he saw appellant
going out of their house with her two kids in tow, each one
carrying a bag, locking the gate and taking her children to
the waiting area where he was. Joseph lived about fifty (50)
meters behind the Genosas' rented house. Joseph, appellant
and her children rode the same bus to Ormoc. They had no
conversation as Joseph noticed that appellant did not want
to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga

told him about the foul odor emanating from his house
being rented by Ben and appellant. Steban went there to
find out the cause of the stench but the house was locked
from the inside. Since he did not have a duplicate key with
him, Steban destroyed the gate padlock with a borrowed
steel saw. He was able to get inside through the kitchen
door but only after destroying a window to reach a hook that
locked it. Alone, Steban went inside the unlocked bedroom
where the offensive smell was coming from. There, he saw
the lifeless body of Ben lying on his side on the bed covered
with a blanket. He was only in his briefs with injuries at the
back of his head. Seeing this, Steban went out of the house
and sent word to the mother of Ben about his son's
misfortune. Later that day, Iluminada Genosa, the mother of
Ben, identified the dead body as that of [her] son.
"Meanwhile, in the morning of the same day, SPO3 Leo
Acodesin, then assigned at the police station at Isabel,
Leyte, received a report regarding the foul smell at the
Genosas' rented house. Together with SPO1 Millares, SPO1
Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to
the house and went inside the bedroom where they found
the dead body of Ben lying on his side wrapped with a
bedsheet. There was blood at the nape of Ben who only had
his briefs on. SPO3 Acodesin found in one corner at the side
of anaparador a metal pipe about two (2) meters from
where Ben was, leaning against a wall. The metal pipe
measured three (3) feet and six (6) inches long with a
diameter of one and half (1 1/2) inches. It had an open end
without a stop valve with a red stain at one end. The
bedroom was not in disarray.
"About 10:00 that same morning, the cadaver of Ben,
because of its stench, had to be taken outside at the back of
the house before the postmortem examination was
conducted by Dr. Cerillo in the presence of the police. A
municipal health officer at Isabel, Leyte responsible for
medico-legal cases, Dr. Cerillo found that Ben had been
dead for two to three days and his body was already
decomposing. The postmortem examination of Dr. Cerillo
yielded the findings quoted in the Information for parricide
later filed against appellant. She concluded that the cause
of Ben's death was 'cardiopulmonary arrest secondary to

severe intracranial hemorrhage due to a depressed fracture

of the occipital [bone].'
"Appellant admitted killing Ben. She testified that going
home after work on November 15, 1995, she got worried
that her husband who was not home yet might have gone
gambling since it was a payday. With her cousin Ecel Arao,
appellant went to look for Ben at the marketplace and
taverns at Isabel, Leyte but did not find him there. They
found Ben drunk upon their return at the Genosas' house.
Ecel went home despite appellant's request for her to sleep
in their house.
"Then, Ben purportedly nagged appellant for following him,
even challenging her to a fight. She allegedly ignored him
and instead attended to their children who were doing their
homework. Apparently disappointed with her reaction, Ben
switched off the light and, with the use of a chopping knife,
cut the television antenna or wire to keep her from watching
television. According to appellant, Ben was about to attack
her so she ran to the bedroom, but he got hold of her hands
and whirled her around. She fell on the side of the bed and
screamed for help. Ben left. At this point, appellant
packed his clothes because she wanted him to leave. Seeing
his packed clothes upon his return home, Ben allegedly flew
into a rage, dragged appellant outside of the bedroom
towards a drawer holding her by the neck, and told her 'You
might as well be killed so nobody would nag me.' Appellant
testified that she was aware that there was a gun inside the
drawer but since Ben did not have the key to it, he got a
three-inch long blade cutter from his wallet. She however,
'smashed' the arm of Ben with a pipe, causing him to drop
the blade and his wallet. Appellant then 'smashed' Ben at
his nape with the pipe as he was about to pick up the blade
and his wallet. She thereafter ran inside the bedroom.
"Appellant, however, insisted that she ended the life of her
husband by shooting him. She supposedly 'distorted' the
drawer where the gun was and shot Ben. He did not die on
the spot, though, but in the bedroom."7 (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on

November 19, 1983. Prior to her marriage, Marivic had
graduated from San Carlos, Cebu City, obtaining a degree of
Bachelor of Science in Business Administration, and was
working, at the time of her husband's death, as a Secretary
to the Port Managers in Ormoc City. The couple had three (3)
children: John Marben, Earl Pierre and Marie Bianca.
"2. Marivic and Ben had known each other since elementary
school; they were neighbors in Bilwang; they were
classmates; and they were third degree cousins. Both sets of
parents were against their relationship, but Ben was
persistent and tried to stop other suitors from courting her.
Their closeness developed as he was her constant partner at
fiestas.
"3. After their marriage, they lived first in the home of Ben's
parents, together with Ben's brother, Alex, in Isabel, Leyte.
In the first year of marriage, Marivic and Ben 'lived happily'.
But apparently, soon thereafter, the couple would quarrel
often and their fights would become violent.
"4. Ben's brother, Alex, testified for the prosecution that he
could not remember when Ben and Marivic married. He said
that when Ben and Marivic quarreled, generally when Ben
would come home drunk, Marivic would inflict injuries on
him. He said that in one incident in 1993 he saw Marivic
holding a kitchen knife after Ben had shouted for help as his
left hand was covered with blood. Marivic left the house but
after a week, she returned apparently having asked for
Ben's forgiveness. In another incident in May 22, 1994, early
morning, Alex and his father apparently rushed to Ben's aid
again and saw blood from Ben's forehead and Marivic
holding an empty bottle. Ben and Marivic reconciled after
Marivic had apparently again asked for Ben's forgiveness.
"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified
too, saying that Ben and Marivic married in '1986 or 1985
more or less here in Fatima, Ormoc City.' She said as the
marriage went along, Marivic became 'already very
demanding. Mrs. Iluminada Genosa said that after the birth
of
Marivic's
two
sons,
there
were
'three
(3)
misunderstandings.' The first was when Marivic stabbed Ben
with a table knife through his left arm; the second incident
was on November 15, 1994, when Marivic struck Ben on the

forehead 'using a sharp instrument until the eye was also

affected. It was wounded and also the ear' and her husband
went to Ben to help; and the third incident was in 1995
when the couple had already transferred to the house in
Bilwang and she saw that Ben's hand was plastered as 'the
bone cracked.'
"Both mother and son claimed they brought Ben to a Pasar
clinic for medical intervention.
"5. Arturo Basobas, a co-worker of Ben, testified that on
November 15, 1995 'After we collected our salary, we went
to the cock-fighting place of ISCO.' They stayed there for
three (3) hours, after which they went to 'Uniloks' and drank
beer allegedly only two (2) bottles each. After drinking
they bought barbeque and went to the Genosa
residence. Marivic was not there. He stayed a while talking
with Ben, after which he went across the road to wait 'for
the runner and the usher of the masiao game because
during that time, the hearing on masiao numbers was
rampant. I was waiting for the ushers and runners so that I
can place my bet.' On his way home at about 9:00 in the
evening, he heard the Genosas arguing. They were
quarreling loudly. Outside their house was one 'Fredo' who is
used by Ben to feed his fighting cocks. Basobas' testimony
on the root of the quarrel, conveniently overheard by him
was Marivic saying 'I will never hesitate to kill you', whilst
Ben replied 'Why kill me when I am innocent.' Basobas
thought they were joking.
"He did not hear them quarreling while he was across the
road from the Genosa residence. Basobas admitted that he
and Ben were always at the cockpits every Saturday and
Sunday. He claims that he once told Ben 'before when he
was stricken with a bottle by Marivic Genosa' that he should
leave her and that Ben would always take her back after she
would leave him 'so many times'.
"Basobas could not remember when Marivic had hit Ben, but
it was a long time that they had been quarreling. He said
Ben 'even had a wound' on the right forehead. He had
known the couple for only one (1) year.
"6. Marivic testified that after the first year of marriage, Ben
became cruel to her and was a habitual drinker. She said he

provoked her, he would slap her, sometimes he would pin

her down on the bed, and sometimes beat her.
"These incidents happened several times and she would
often run home to her parents, but Ben would follow her and
seek her out, promising to change and would ask for her
forgiveness. She said after she would be beaten, she would
seek medical help from Dr. Dino Caing, Dr. Lucero and Dra.
Cerillo. These doctors would enter the injuries inflicted upon
her by Ben into their reports. Marivic said Ben would beat
her or quarrel with her every time he was drunk, at least
three times a week.
"7. In her defense, witnesses who were not so closely
related to Marivic, testified as to the abuse and violence she
received at the hands of Ben.
'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor]
of the Genosas, testified that on November 15, 1995, he
overheard a quarrel between Ben and Marivic. Marivic was
shouting for help and through the open jalousies, he saw the
spouses 'grappling with each other'. Ben had Marivic in a
choke hold. He did not do anything, but had come
voluntarily to testify. (Please note this was the same night
as that testified to by Arturo Busabos.8)
'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother
of Mr. Joe Barrientos, testified that he heard his neighbor
Marivic shouting on the night of November 15, 1995. He
peeped through the window of his hut which is located
beside the Genosa house and saw 'the spouses grappling
with each other then Ben Genosa was holding with his both
hands the neck of the accused, Marivic Genosa'. He said
after a while, Marivic was able to extricate he[r]self and
enter the room of the children. After that, he went back to
work as he was to go fishing that evening. He returned at
8:00 the next morning. (Again, please note that this was the
same night as that testified to by Arturo Basobas).
'7.3. Mr. Teodoro Sarabia was a former neighbor of the
Genosas while they were living in Isabel, Leyte. His house
was located about fifty (50) meters from theirs. Marivic is his
niece and he knew them to be living together for 13 or 14
years. He said the couple was always quarreling. Marivic
confided in him that Ben would pawn items and then would

use the money to gamble. One time, he went to their house

and they were quarreling. Ben was so angry, but would be
pacified 'if somebody would come.' He testified that while
Ben was alive 'he used to gamble and when he became
drunk, he would go to our house and he will say, 'Teody'
because that was what he used to call me, 'mokimas ta,'
which means 'let's go and look for a whore.' Mr. Sarabia
further testified that Ben 'would box his wife and I would see
bruises and one time she ran to me, I noticed a wound (the
witness pointed to his right breast) as according to her a
knife was stricken to her.' Mr. Sarabia also said that once he
saw Ben had been injured too. He said he voluntarily
testified only that morning.
'7.4. Miss Ecel Arano, an 18-year old student, who is a
cousin of Marivic, testified that in the afternoon of
November 15, 1995, Marivic went to her house and asked
her help to look for Ben. They searched in the market place,
several taverns and some other places, but could not find
him. She accompanied Marivic home. Marivic wanted her to
sleep with her in the Genosa house 'because she might be
battered by her husband.' When they got to the Genosa
house at about 7:00 in the evening, Miss Arano said that
'her husband was already there and was drunk.' Miss Arano
knew he was drunk 'because of his staggering walking and I
can also detect his face.' Marivic entered the house and she
heard them quarrel noisily. (Again, please note that this is
the same night as that testified to by Arturo Basobas) Miss
Arano testified that this was not the first time Marivic had
asked her to sleep in the house as Marivic would be afraid
every time her husband would come home drunk. At one
time when she did sleep over, she was awakened at 10:00 in
the evening when Ben arrived because the couple 'were
very noisy in the sala and I had heard something was broken
like a vase.' She said Marivic ran into her room and they
locked the door. When Ben couldn't get in he got a chair and
a knife and 'showed us the knife through the window grill
and he scared us.' She said that Marivic shouted for help,
but no one came. On cross-examination, she said that when
she left Marivic's house on November 15, 1995, the couple
were still quarreling.
'7.5. Dr. Dino Caing, a physician testified that he and Marivic
were co-employees at PHILPHOS, Isabel, Leyte. Marivic was
his patient 'many times' and had also received treatment

from other doctors. Dr. Caing testified that from July 6, 1989
until November 9, 1995, there were six (6) episodes of
physical injuries inflicted upon Marivic. These injuries were
reported in his Out-Patient Chart at the PHILPHOS Hospital.
The prosecution admitted the qualifications of Dr. Caing and
considered him an expert witness.'
xxx

xxx

xxx

'Dr. Caing's clinical history of the tension headache and

hypertention of Marivic on twenty-three (23) separate
occasions was marked at Exhibits '2' and '2-B.' The OPD
Chart of Marivic at the Philphos Clinic which reflected all the
consultations made by Marivic and the six (6) incidents of
physical injuries reportedwas marked as Exhibit '3.'
"On cross-examination, Dr. Caing said that he is not a
psychiatrist, he could not say whether the injuries were
directly related to the crime committed. He said it is only a
psychiatrist who is qualified to examine the psychological
make-up of the patient, 'whether she is capable of
committing a crime or not.'
'7.6 Mr. Panfilo Tero, the barangay captain in the place
where the Genosas resided, testified that about two (2)
months before Ben died, Marivic went to his office past 8:00
in the evening. She sought his help to settle or confront the
Genosa couple who were experiencing 'family troubles'. He
told Marivic to return in the morning, but he did not hear
from her again and assumed 'that they might have settled
with each other or they might have forgiven with each
other.'
xxx

xxx

xxx

"Marivic said she did not provoke her husband when she got
home that night it was her husband who began the
provocation. Marivic said she was frightened that her
husband would hurt her and she wanted to make sure she
would deliver her baby safely. In fact, Marivic had to be
admitted later at the Rizal Medical Centre as she was
suffering from eclampsia and hypertension, and the baby
was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to

leave her husband at least five (5) times, but that Ben would
always follow her and they would reconcile. Marivic said that
the reason why Ben was violent and abusive towards her
that night was because 'he was crazy about his recent
girlfriend, Lulu x x x Rubillos.'
"On cross-examination, Marivic insisted she shot Ben with a
gun; she said that he died in the bedroom; that their
quarrels could be heard by anyone passing their house; that
Basobas lied in his testimony; that she left for Manila the
next day, November 16, 1995; that she did not bother
anyone in Manila, rented herself a room, and got herself a
job as a field researcher under the alias 'Marvelous Isidro';
she did not tell anyone that she was leaving Leyte, she just
wanted to have a safe delivery of her baby; and that she
was arrested in San Pablo, Laguna.
'Answering questions from the Court, Marivic said that she
threw the gun away; that she did not know what happened
to the pipe she used to 'smash him once'; that she was
wounded by Ben on her wrist with the bolo; and that two (2)
hours after she was 'whirled' by Ben, he kicked her 'ass' and
dragged her towards the drawer when he saw that she had
packed his things.'
"9. The body of Ben Genosa was found on November 18,
1995 after an investigation was made of the foul odor
emitting from the Genosa residence. This fact was testified
to by all the prosecution witnesses and some defense
witnesses during the trial.
"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal
Health Officer of Isabel, Leyte at the time of the incident,
and among her responsibilities as such was to take charge
of all medico-legal cases, such as the examination of
cadavers and the autopsy of cadavers. Dra. Cerillo is not a
forensic pathologist. She merely took the medical board
exams and passed in 1986. She was called by the police to
go to the Genosa residence and when she got there, she
saw 'some police officer and neighbor around.' She saw Ben
Genosa, covered by a blanket, lying in a semi-prone position
with his back to the door. He was wearing only a brief.
xxxxxxxxx

"Dra. Cerillo said that 'there is only one injury and that is the
injury involving the skeletal area of the head' which she
described as a 'fracture'. And that based on her
examination, Ben had been dead 2 or 3 days. Dra. Cerillo
did not testify as to what caused his death.
"Dra. Cerillo was not cross-examined by defense counsel.
"11. The Information, dated November 14, 1996, filed
against Marivic Genosa charged her with the crime of
PARRICIDE committed 'with intent to kill, with treachery and
evidence premeditation, x x x wilfully, unlawfully and
feloniously attack, assault, hit and wound x x x her
legitimate husband, with the use of a hard deadly weapon x
x x which caused his death.'
"12. Trial took place on 7 and 14 April 1997, 14 May 1997,
21 July 1997, 17, 22 and 23 September 1997, 12 November
1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6
August 1998.
"13. On 23 September 1998, or only fifty (50) days from the
day of the last trial date, the Hon. Fortunito L. Madrona,
Presiding Judge, RTC-Branch 35, Ormoc City, rendered a
JUDGMENT finding Marivic guilty 'beyond reasonable doubt'
of the crime of parricide, and further found treachery as an
aggravating circumstance, thus sentencing her to the
ultimate penalty of DEATH.
"14. The case was elevated to this Honorable Court upon
automatic review and, under date of 24 January 2000,
Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a
Motion to Withdraw as counsel, attaching thereto, as a
precautionary measure, two (2) drafts of Appellant's Briefs
he had prepared for Marivic which, for reasons of her own,
were not conformed to by her.
"The Honorable Court allowed the withdrawal of Atty.
Tabucanon and permitted the entry of appearance of
undersigned counsel.
"15. Without the knowledge of counsel, Marivic Genosa
wrote a letter dated 20 January 2000, to the Chief Justice,
coursing the same through Atty. Teresita G. Dimaisip, Deputy

Clerk of Court of Chief Judicial Records Office, wherein she

submitted her 'Brief without counsels' to the Court.
"This letter was stamp-received by the Honorable Court on 4
February 2000.
"16. In the meantime, under date of 17 February 2000, and
stamp-received by the Honorable Court on 19 February
2000, undersigned counsel filed an URGENT OMNIBUS
MOTION praying that the Honorable Court allow the
exhumation of Ben Genosa and the re-examination of the
cause of his death; allow the examination of Marivic Genosa
by qualified psychologists and psychiatrists to determine her
state of mind at the time she killed her husband; and finally,
to allow a partial re-opening of the case a quo to take the
testimony of said psychologists and psychiatrists.
"Attached to the URGENT OMNIBUS MOTION was a letter of
Dr. Raquel Fortun, then the only qualified forensic
pathologist in the country, who opined that the description
of the death wound (as culled from the post-mortem
findings, Exhibit 'A') is more akin to a gunshot wound than a
beating with a lead pipe.
"17. In a RESOLUTION dated 29 September 2000, the
Honorable Court partly granted Marivic's URGENT OMNIBUS
MOTION and remanded the case 'to the trial court for the
reception of expert psychological and/or psychiatric opinion
on the 'battered woman syndrome' plea, within ninety (90)
days from notice, and, thereafter to forthwith report to this
Court the proceedings taken, together with the copies of the
TSN and relevant documentary evidence, if any, submitted.'
"18. On 15 January 2001, Dra. Natividad A. Dayan appeared
and testified before the Hon. Fortunito L. Madrona, RTCBranch 35, Ormoc City.
"Immediately before Dra. Dayan was sworn, the Court a
quo asked if she had interviewed Marivic Genosa. Dra.
Dayan informed the Court that interviews were done at the
Penal Institution in 1999, but that the clinical interviews and
psychological assessment were done at her clinic.

"Dra. Dayan testified that she has been a clinical

psychologist for twenty (20) years with her own private
clinic and connected presently to the De La Salle University
as a professor. Before this, she was the Head of the
Psychology Department of the Assumption College; a
member of the faculty of Psychology at the Ateneo de
Manila University and St. Joseph's College; and was the
counseling psychologist of the National Defense College.
She has an AB in Psychology from the University of the
Philippines, a Master of Arts in Clinical [Counseling],
Psychology from the Ateneo, and a PhD from the U.P. She
was the past president of the Psychological Association of
the Philippines and is a member of the American
Psychological Association. She is the secretary of the
International Council of Psychologists from about 68
countries; a member of the Forensic Psychology Association;
and a member of the ASEAN [Counseling] Association. She is
actively involved with the Philippine Judicial Academy,
recently
lecturing
on
the
socio-demographic
and
psychological profile of families involved in domestic
violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She
has written a book entitled 'Energy Global Psychology'
(together with Drs. Allan Tan and Allan Bernardo). The
Genosa case is the first time she has testified as an expert
on battered women as this is the first case of that nature.
"Dra. Dayan testified that for the research she conducted,
on the socio-demographic and psychological profile of
families involved in domestic violence, and nullity cases, she
looked at about 500 cases over a period of ten (10) years
and discovered that 'there are lots of variables that cause all
of this marital conflicts, from domestic violence to infidelity,
to psychiatric disorder.'
"Dra. Dayan described domestic violence to comprise of 'a
lot of incidents of psychological abuse, verbal abuse, and
emotional abuse to physical abuse and also sexual abuse.'
xxx

xxx

xxx

"Dra. Dayan testified that in her studies, 'the battered

woman usually has a very low opinion of herself. She has a
self-defeating and self-sacrificing characteristics. x x x they
usually think very lowly of themselves and so when the

violence would happen, they usually think that they provoke

it, that they were the one who precipitated the violence,
they provoke their spouse to be physically, verbally and
even sexually abusive to them.' Dra. Dayan said that usually
a battered x x x comes from a dysfunctional family or from
'broken homes.'

of her feeling of self-confidence which we can see at times

there are really feeling (sic) of loss, such feelings of
humiliation which she sees herself as damaged and as a
broken person. And at the same time she still has the
imprint of all the abuses that she had experienced in the
past.'

"Dra. Dayan said that the batterer, just like the battered
woman, 'also has a very low opinion of himself. But then
emerges to have superiority complex and it comes out as
being very arrogant, very hostile, very aggressive and very
angry. They also had (sic) a very low tolerance for
frustrations. A lot of times they are involved in vices like
gambling, drinking and drugs. And they become violent.'
The batterer also usually comes from a dysfunctional family
which over-pampers them and makes them feel entitled to
do anything. Also, they see often how their parents abused
each other so 'there is a lot of modeling of aggression in the
family.'

xxx

"Dra. Dayan testified that there are a lot of reasons why a

battered woman does not leave her husband: poverty, selfblame and guilt that she provoked the violence, the cycle
itself which makes her hope her husband will change, the
belief in her obligations to keep the family intact at all costs
for the sake of the children.
xxx

xxx

xxx

"Dra. Dayan said that abused wives react differently to the

violence: some leave the house, or lock themselves in
another room, or sometimes try to fight back triggering
'physical violence on both of them.' She said that in a
'normal marital relationship,' abuses also happen, but these
are 'not consistent, not chronic, are not happening day in
[and] day out.' In an 'abnormal marital relationship,' the
abuse occurs day in and day out, is long lasting and 'even
would cause hospitalization on the victim and even death on
the victim.'
xxx

xxx

xxx

"Dra. Dayan said that as a result of the battery of

psychological tests she administered, it was her opinion that
Marivic fits the profile of a battered woman because 'inspite

xxx

xxx

"Dra. Dayan said Marivic thought of herself as a loving wife

and did not even consider filing for nullity or legal
separation inspite of the abuses. It was at the time of the
tragedy that Marivic then thought of herself as a victim.
xxx

xxx

xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician,

who has since passed away, appeared and testified before
RTC-Branch 35, Ormoc City.
"Dr. Pajarillo was a Diplomate of the Philippine Board of
Psychiatry; a Fellow of the Philippine Board of Psychiatry and
a Fellow of the Philippine Psychiatry Association. He was in
the practice of psychiatry for thirty-eight (38) years. Prior to
being in private practice, he was connected with the
Veterans Memorial Medical Centre where he gained his
training on psychiatry and neurology. After that, he was
called to active duty in the Armed Forces of the Philippines,
assigned to the V. Luna Medical Center for twenty six (26)
years. Prior to his retirement from government service, he
obtained the rank of Brigadier General. He obtained his
medical degree from the University of Santo Tomas. He was
also a member of the World Association of Military Surgeons;
the Quezon City Medical Society; the Cagayan Medical
Society; and the Philippine Association of Military Surgeons.
"He authored 'The Comparative Analysis of Nervous
Breakdown in the Philippine Military Academy from the
Period 1954 1978' which was presented twice in
international congresses. He also authored 'The Mental
Health of the Armed Forces of the Philippines 2000', which
was likewise published internationally and locally. He had a
medical textbook published on the use of Prasepam on a
Parke-Davis grant; was the first to use Enanthate (siquiline),

on an E.R. Squibb grant; and he published the use of the

drug Zopiclom in 1985-86.
"Dr. Pajarillo explained that psychiatry deals with the
functional disorder of the mind and neurology deals with the
ailment of the brain and spinal cord enlarged. Psychology,
on the other hand, is a bachelor degree and a doctorate
degree; while one has to finish medicine to become a
specialist in psychiatry.
"Even only in his 7th year as a resident in V. Luna Medical
Centre, Dr. Pajarillo had already encountered a suit involving
violent family relations, and testified in a case in 1964. In
the Armed Forces of the Philippines, violent family disputes
abound, and he has seen probably ten to twenty thousand
cases. In those days, the primordial intention of therapy was
reconciliation. As a result of his experience with domestic
violence cases, he became a consultant of the Battered
Woman Office in Quezon City under Atty. Nenita Deproza.
"As such consultant, he had seen around forty (40) cases of
severe domestic violence, where there is physical abuse:
such as slapping, pushing, verbal abuse, battering and
boxing a woman even to an unconscious state such that the
woman is sometimes confined. The affliction of PostTraumatic Stress Disorder 'depends on the vulnerability of
the victim.' Dr. Pajarillo said that if the victim is not very
healthy, perhaps one episode of violence may induce the
disorder; if the psychological stamina and physiologic
constitutional stamina of the victim is stronger, 'it will take
more repetitive trauma to precipitate the post-traumatic
stress disorder and this x x x is very dangerous.'
"In psychiatry, the post-traumatic stress disorder is
incorporated under the 'anxiety neurosis or neurologic
anxcietism.' It is produced by 'overwhelming brutality,
trauma.'
xxx

xxx

xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the

victim relives the beating or trauma as if it were real,
although she is not actually being beaten at that time. She
thinks 'of nothing but the suffering.'

xxx

xxx

xxx

"A woman who suffers battery has a tendency to become

neurotic, her emotional tone is unstable, and she is irritable
and restless. She tends to become hard-headed and
persistent. She has higher sensitivity and her 'self-world' is
damaged.
"Dr. Pajarillo said that an abnormal family background
relates to an individual's illness, such as the deprivation of
the continuous care and love of the parents. As to the
batterer, he normally 'internalizes what is around him within
the environment.' And it becomes his own personality. He is
very competitive; he is aiming high all the time; he is so
macho; he shows his strong faade 'but in it there are
doubts in himself and prone to act without thinking.'
xxx

xxx

xxx

"Dr. Pajarillo emphasized that 'even though without the

presence of the precipator (sic) or the one who administered
the battering, that re-experiencing of the trauma occurred
(sic) because the individual cannot control it. It will just
come up in her mind or in his mind.'
xxx

xxx

xxx

"Dr. Pajarillo said that a woman suffering post traumatic

stress disorder try to defend themselves, and 'primarily with
knives. Usually pointed weapons or any weapon that is
available in the immediate surrounding or in a hospital x x x
because that abound in the household.' He said a victim
resorts to weapons when she has 'reached the lowest rock
bottom of her life and there is no other recourse left on her
but to act decisively.'
xxx

xxx

xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his

office in an interview he conducted for two (2) hours and
seventeen (17) minutes. He used the psychological
evaluation and social case studies as a help in forming his
diagnosis. He came out with a Psychiatric Report, dated 22
January 2001.

xxx

xxx

xxx

"On cross-examination by the private prosecutor, Dr.

Pajarillo said that at the time she killed her husband
Marivic'c mental condition was that she was 're-experiencing
the trauma.' He said 'that we are trying to explain
scientifically that the re-experiencing of the trauma is not
controlled by Marivic. It will just come in flashes and
probably at that point in time that things happened when
the re-experiencing of the trauma flashed in her mind.' At
the time he interviewed Marivic 'she was more subdued, she
was not super alert anymore x x x she is mentally stress
(sic) because of the predicament she is involved.'
xxx

xxx

xxx

"20. No rebuttal evidence or testimony was presented by

either the private or the public prosecutor. Thus, in accord
with the Resolution of this Honorable Court, the records of
the partially re-opened trial a quo were elevated."9
Ruling of the Trial Court

reopening of the case for the lower court to admit the experts'
testimonies.
On September 29, 2000, this Court issued a Resolution granting in
part appellant's Motion, remanding the case to the trial court for
the reception of expert psychological and/or psychiatric opinion on
the "battered woman syndrome" plea; and requiring the lower court
to report thereafter to this Court the proceedings taken as well as
to submit copies of the TSN and additional evidence, if any.
Acting on the Court's Resolution, the trial judge authorized the
examination of Marivic by two clinical psychologists, Drs. Natividad
Dayan10 and Alfredo Pajarillo,11 supposedly experts on domestic
violence. Their testimonies, along with their documentary evidence,
were then presented to and admitted by the lower court before
finally being submitted to this Court to form part of the records of
the case.12
The Issues
Appellant assigns the following alleged errors of the trial court for
this Court's consideration:

Finding the proffered theory of self-defense untenable, the RTC

gave credence to the prosecution evidence that appellant had
killed the deceased while he was in bed sleeping. Further, the trial
court appreciated the generic aggravating circumstance of
treachery, because Ben Genosa was supposedly defenseless when
he was killed -- lying in bed asleep when Marivic smashed him with
a pipe at the back of his head.

"1. The trial court gravely erred in promulgating an

obviously hasty decision without reflecting on the evidence
adduced as to self-defense.

The capital penalty having been imposed, the case was elevated to
this Court for automatic review.

"3. The trial court gravely erred finding the cause of death to
be by beating with a pipe.

Supervening Circumstances

"4. The trial court gravely erred in ignoring and disregarding

evidence adduced from impartial and unbiased witnesses
that Ben Genosa was a drunk, a gambler, a womanizer and
wife-beater; and further gravely erred in concluding that
Ben Genosa was a battered husband.

On February 19, 2000, appellant filed an Urgent Omnibus Motion

praying that this Court allow (1) the exhumation of Ben Genosa and
the reexamination of the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists to determine
her state of mind at the time she had killed her spouse; and (3) the
inclusion of the said experts' reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial

"2. The trial court gravely erred in finding as a fact that Ben
and Marivic Genosa were legally married and that she was
therefore liable for parricide.

"5. The trial court gravely erred in not requiring testimony

from the children of Marivic Genosa.

"6. The trial court gravely erred in concluding that Marivic's

flight to Manila and her subsequent apologies were indicia of
guilt, instead of a clear attempt to save the life of her
unborn child.
"7. The trial court gravely erred in concluding that there was
an aggravating circumstance of treachery.
"8. The trial court gravely erred in refusing to re-evaluate
the traditional elements in determining the existence of selfdefense and defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of the crime of
parricide and condemning her to the ultimate penalty of
death."13
In the main, the following are the essential legal issues: (1) whether
appellant acted in self-defense and in defense of her fetus; and (2)
whether treachery attended the killing of Ben Genosa.
The Court's Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by appellant are factual in
nature, if not collateral to the resolution of the principal issues. As
consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high
degree of respect and will not be disturbed on appeal in the
absence of any showing that the trial judge gravely abused his
discretion or overlooked, misunderstood or misapplied material
facts or circumstances of weight and substance that could affect
the outcome of the case.14
In appellant's first six assigned items, we find no grave abuse of
discretion, reversible error or misappreciation of material facts that
would reverse or modify the trial court's disposition of the case. In
any event, we will now briefly dispose of these alleged errors of the
trial court.
First, we do not agree that the lower court promulgated "an
obviously hasty decision without reflecting on the evidence
adduced as to self-defense." We note that in his 17-page Decision,

Judge Fortunito L. Madrona summarized the testimonies of both the

prosecution and the defense witnesses and -- on the basis of those
and of the documentary evidence on record -- made his evaluation,
findings and conclusions. He wrote a 3-page discourse assessing
the testimony and the self-defense theory of the accused. While
she, or even this Court, may not agree with the trial judge's
conclusions, we cannot peremptorily conclude, absent substantial
evidence, that he failed to reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an
"obviously hasty" manner. The Information had been filed with the
lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the trial judge
about two months from the conclusion of trial to promulgate his
judgment. That he conducted the trial and resolved the case with
dispatch should not be taken against him, much less used to
condemn him for being unduly hasty. If at all, the dispatch with
which he handled the case should be lauded. In any case, we find
his actions in substantial compliance with his constitutional
obligation.15
Second, the lower court did not err in finding as a fact that Ben
Genosa and appellant had been legally married, despite the nonpresentation
of
their
marriage
contract.
In People
v.
Malabago,16 this Court held:
"The key element in parricide is the relationship of the
offender with the victim. In the case of parricide of a spouse,
the best proof of the relationship between the accused and
the deceased is the marriage certificate. In the absence of a
marriage certificate, however, oral evidence of the fact of
marriage may be considered by the trial court if such proof
is not objected to."
Two of the prosecution witnesses -- namely, the mother and the
brother of appellant's deceased spouse -- attested in court that Ben
had been married to Marivic.17 The defense raised no objection to
these testimonies. Moreover, during her direct examination,
appellant herself made a judicial admission of her marriage to
Ben.18Axiomatic is the rule that a judicial admission is conclusive
upon the party making it, except only when there is a showing that
(1) the admission was made through a palpable mistake, or (2) no
admission was in fact made.19Other than merely attacking the nonpresentation of the marriage contract, the defense offered no proof

that the admission made by appellant in court as to the fact of her

marriage to the deceased was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct
cause of Ben's death -- whether by a gunshot or by beating with a
pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[c]onsidering that the appellant
has admitted the fact of killing her husband and the acts of hitting
his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts actually caused the
victim's death." Determining which of these admitted acts caused
the death is not dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating
evidence that Ben was a drunk, gambler, womanizer and wifebeater. Until this case came to us for automatic review, appellant
had not raised the novel defense of "battered woman syndrome,"
for which such evidence may have been relevant. Her theory of
self-defense was then the crucial issue before the trial court. As will
be discussed shortly, the legal requisites of self-defense under
prevailing jurisprudence ostensibly appear inconsistent with the
surrounding facts that led to the death of the victim. Hence, his
personal character, especially his past behavior, did not constitute
vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring
testimony from appellant's children. As correctly elucidated by the
solicitor general, all criminal actions are prosecuted under the
direction and control of the public prosecutor, in whom lies the
discretion to determine which witnesses and evidence are
necessary to present.20 As the former further points out, neither the
trial court nor the prosecution prevented appellant from presenting
her children as witnesses. Thus, she cannot now fault the lower
court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether
the flight of Marivic to Manila and her subsequent apologies to her
brother-in-law are indicia of her guilt or are attempts to save the life
of her unborn child. Any reversible error as to the trial court's
appreciation of these circumstances has little bearing on the final
resolution of the case.
First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability,
invokes self-defense and/or defense of her unborn child. When the
accused admits killing the victim, it is incumbent upon her to prove
any claimed justifying circumstance by clear and convincing
evidence.21 Well-settled is the rule that in criminal cases, selfdefense (and similarly, defense of a stranger or third person) shifts
the burden of proof from the prosecution to the defense.22
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the
battered woman syndrome. While new in Philippine jurisprudence,
the concept has been recognized in foreign jurisdictions as a form
of self-defense or, at the least, incomplete self-defense. 23 By
appreciating evidence that a victim or defendant is afflicted with
the syndrome, foreign courts convey their "understanding of the
justifiably fearful state of mind of a person who has been cyclically
abused and controlled over a period of time."24
A battered woman has been defined as a woman "who is
repeatedly subjected to any forceful physical or psychological
behavior by a man in order to coerce her to do something he wants
her to do without concern for her rights. Battered women include
wives or women in any form of intimate relationship with men.
Furthermore, in order to be classified as a battered woman, the
couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man
once. If it occurs a second time, and she remains in the situation,
she is defined as a battered woman."25
Battered women exhibit common personality traits, such as low
self-esteem, traditional beliefs about the home, the family and the
female sex role; emotional dependence upon the dominant male;
the tendency to accept responsibility for the batterer's actions; and
false hopes that the relationship will improve.26
More graphically, the battered woman syndrome is characterized
by the so-called "cycle of violence,"27 which has three phases: (1)
the tension-building phase; (2) the acute battering incident; and (3)
the tranquil, loving (or, at least, nonviolent) phase.28

During the tension-building phase, minor battering occurs -- it

could be verbal or slight physical abuse or another form of hostile
behavior. The woman usually tries to pacify the batterer through a
show of kind, nurturing behavior; or by simply staying out of his
way. What actually happens is that she allows herself to be abused
in ways that, to her, are comparatively minor. All she wants is to
prevent the escalation of the violence exhibited by the batterer.
This wish, however, proves to be double-edged, because her
"placatory" and passive behavior legitimizes his belief that he has
the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to
placate him are not usually successful, and the verbal and/or
physical abuse worsens. Each partner senses the imminent loss of
control and the growing tension and despair. Exhausted from the
persistent stress, the battered woman soon withdraws emotionally.
But the more she becomes emotionally unavailable, the more the
batterer becomes angry, oppressive and abusive. Often, at some
unpredictable point, the violence "spirals out of control" and leads
to an acute battering incident.29
The acute battering incident is said to be characterized by
brutality, destructiveness and, sometimes, death. The battered
woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put an
end to the violence. Its nature can be as unpredictable as the time
of its explosion, and so are his reasons for ending it. The battered
woman usually realizes that she cannot reason with him, and that
resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and
the terrible pain, although she may later clearly remember every
detail. Her apparent passivity in the face of acute violence may be
rationalized thus: the batterer is almost always much stronger
physically, and she knows from her past painful experience that it
is futile to fight back. Acute battering incidents are often very
savage and out of control, such that innocent bystanders or
intervenors are likely to get hurt.30
The final phase of the cycle of violence begins when the acute
battering incident ends. During this tranquil period, the couple
experience profound relief. On the one hand, the batterer may
show a tender and nurturing behavior towards his partner. He
knows that he has been viciously cruel and tries to make up for it,
begging for her forgiveness and promising never to beat her again.

On the other hand, the battered woman also tries to convince

herself that the battery will never happen again; that her partner
will change for the better; and that this "good, gentle and caring
man" is the real person whom she loves.
A battered woman usually believes that she is the sole anchor of
the emotional stability of the batterer. Sensing his isolation and
despair, she feels responsible for his well-being. The truth, though,
is that the chances of his reforming, or seeking or receiving
professional help, are very slim, especially if she remains with him.
Generally, only after she leaves him does he seek professional help
as a way of getting her back. Yet, it is in this phase of remorseful
reconciliation
that
she
is
most
thoroughly
tormented
psychologically.
The illusion of absolute interdependency is well-entrenched in a
battered woman's psyche. In this phase, she and her batterer are
indeed emotionally dependent on each other -- she for his
nurturant behavior, he for her forgiveness. Underneath this
miserable cycle of "tension, violence and forgiveness," each
partner may believe that it is better to die than to be separated.
Neither one may really feel independent, capable of functioning
without the other.31
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the defense
presented several witnesses. She herself described her heartrending experience as follows:
"ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A In the first year, I lived with him happily but in the
subsequent year he was cruel to me and a behavior of
habitual drinker.
Q You said that in the subsequent year of your marriage,
your husband was abusive to you and cruel. In what way
was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me

and sometimes he pinned me down on the bed and
sometimes beat me.

A Of course my husband.

Q How many times did this happen?

A Yes, sir.

A Several times already.

xxx

Q What did you do when these things happen to you?

[Court] /to the witness

A I went away to my mother and I ran to my father and we

separate each other.

Q How frequent was the alleged cruelty that you said?

Q What was the action of Ben Genosa towards you leaving

home?

Q You mean Ben Genosa?

xxx

xxx

A Everytime he got drunk.

A He is following me, after that he sought after me.

Q No, from the time that you said the cruelty or the infliction
of injury inflicted on your occurred, after your marriage,
from that time on, how frequent was the occurrence?

Q What will happen when he follow you?

A Everytime he got drunk.

A He said he changed, he asked for forgiveness and I was

convinced and after that I go to him and he said 'sorry'.

Q Is it daily, weekly, monthly or how many times in a month

or in a week?

Q During those times that you were the recipient of such

cruelty and abusive behavior by your husband, were you
able to see a doctor?

A Three times a week.

A Yes, sir.

A Not necessarily that he would beat me but sometimes he

will just quarrel me." 32

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and
Dra. Cerillo.
xxx

xxx

xxx

Q You said that you saw a doctor in relation to your injuries?

Q Do you mean three times a week he would beat you?

Referring to his "Out-Patient Chart"33 on Marivic Genosa at the

Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing
testimony on chronic battery in this manner:
"Q So, do you have a summary of those six (6) incidents
which are found in the chart of your clinic?
A Yes, sir.

A Yes, sir.
Q Who inflicted these injuries?

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with

the dates for the record.
A 1. May 12, 1990 - physical findings are as follows:
Hematoma (R) lower eyelid and redness of eye. Attending
physician: Dr. Lucero;

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an
inflammation of left breast. So, [pain] meaning there is
tenderness. When your breast is traumatized, there is
tenderness pain.

2. March 10, 1992 - Contusion-Hematoma (L) lower

arbital area, pain and contusion (R) breast. Attending
physician: Dr. Canora;

Q So, these are objective physical injuries. Doctor?

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

Q Were you able to talk with the patient?

4. August 1, 1994 - Pain, mastitis (L) breast, 2 o to

trauma. Attending physician: Dr. Caing;

A Yes, sir.

5. April 17, 1995 - Trauma, tenderness (R) Shoulder.

Attending physician: Dr. Canora; and
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple
contusion Pregnancy. Attending physician: Dr.
Canora.
Q Among the findings, there were two (2) incidents wherein
you were the attending physician, is that correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.
Q Now, going to your finding no. 3 where you were the one
who attended the patient. What do you mean by abrasion
furuncle left axilla?
A Abrasion is a skin wound usually when it comes in contact
with something rough substance if force is applied.
Q What is meant by furuncle axilla?
A It is secondary of the light infection over the abrasion.

xxx

xxx

xxx

Q What did she tell you?

A As a doctor-patient relationship, we need to know the
cause of these injuries. And she told me that it was done to
her by her husband.
Q You mean, Ben Genosa?
A Yes, sir.
xxx

xxx

xxx

ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the
accused sometime in the month of November, 1995 when
this incident happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable

Court, was the patient pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at what stage of
pregnancy was she?

A Because she has this problem of tension headache

secondary to hypertension and I think I have a record here,
also the same period from 1989 to 1995, she had a
consultation for twenty-three (23) times.
Q For what?
A Tension headache.

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an
examination about her pregnancy or for some other
findings?
A No, she was admitted for hypertension headache which
complicates her pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.
Q For how many days?

Q What did you deduce of tension headache when you said

is emotional in nature?
A From what I deduced as part of our physical examination
of the patient is the family history in line of giving the root
cause of what is causing this disease. So, from the moment
you ask to the patient all comes from the domestic problem.
Q You mean problem in her household?

Q Can family trouble cause elevation of blood pressure,

Doctor?

Q Where?
A At PHILPHOS Hospital.
xxx

A The patient definitely had hypertension. It was refractory

to our treatment. She does not response when the
medication was given to her, because tension headache is
more or less stress related and emotional in nature.

A Probably.

A One day.

xxx

Q Can we say that specially during the latter consultation,

that the patient had hypertension?

xxx

A Yes, if it is emotionally related and stressful it can cause

increases in hypertension which is unfortunately does not
response to the medication.

Q Lets go back to the clinical history of Marivic Genosa. You

said that you were able to examine her personally on
November 6, 1995 and she was 8 months pregnant.

Q In November 6, 1995, the date of the incident, did you

take the blood pressure of the accused?

What is this all about?

A On November 6, 1995 consultation, the blood pressure

was 180/120.
Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean
this is dangerous level of blood pressure?
A It was dangerous to the child or to the fetus."

34

Another defense witness, Teodoro Sarabia, a former neighbor of the

Genosas in Isabel, Leyte, testified that he had seen the couple
quarreling several times; and that on some occasions Marivic would
run to him with bruises, confiding that the injuries were inflicted
upon her by Ben.35
Ecel Arano also testified36 that for a number of times she had been
asked by Marivic to sleep at the Genosa house, because the latter
feared that Ben would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened about ten
o'clock at night, because the couple "were very noisy and I heard
something was broken like a vase." Then Marivic came running into
Ecel's room and locked the door. Ben showed up by the window grill
atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her
help -- this time to find Ben -- but they were unable to. They
returned to the Genosa home, where they found him already drunk.
Again afraid that he might hurt her, Marivic asked her to sleep at
their house. Seeing his state of drunkenness, Ecel hesitated; and
when she heard the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa, at
least three other witnesses saw or heard the couple
quarreling.37 Marivic relates in detail the following backdrop of the
fateful night when life was snuffed out of him, showing in the
process a vivid picture of his cruelty towards her:

said, 'he was not home yet'. I was worried because that was
payday, I was anticipating that he was gambling. So while
waiting for him, my eldest son arrived from school, I
prepared dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking
for him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated
this time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence
at Bilwang?

"ATTY. TABUCANON:

A I went back around almost 8:00 o'clock.

Q Please tell this Court, can you recall the incident in

November 15, 1995 in the evening?

Q What happened when you arrived in your residence?

A Whole morning and in the afternoon, I was in the office

working then after office hours, I boarded the service bus
and went to Bilwang. When I reached Bilwang, I immediately
asked my son, where was his father, then my second child

A When I arrived home with my cousin Ecel whom I

requested to sleep with me at that time because I had fears
that he was again drunk and I was worried that he would
again beat me so I requested my cousin to sleep with me,

but she resisted because she had fears that the same thing
will happen again last year.

A He was drunk again, he was yelling in his usual unruly

behavior.

Q Who was this cousin of yours who you requested to sleep

with you?

Q What was he yelling all about?

A Ecel Arao, the one who testified.

A His usual attitude when he got drunk.

Q Did Ecel sleep with you in your house on that evening?

Q You said that when you arrived, he was drunk and yelling
at you? What else did he do if any?

A No, because she expressed fears, she said her father

would not allow her because of Ben.

A He is nagging at me for following him and he dared me to

quarrel him.

Q During this period November 15, 1995, were you

pregnant?

Q What was the cause of his nagging or quarreling at you if

you know?

A Yes, 8 months.

A He was angry at me because I was following x x x him,

looking for him. I was just worried he might be overly drunk
and he would beat me again.

Q How advance was your pregnancy?

A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q What's the name of the baby you were carrying at that
time?
A Marie Bianca.
Q What time were you able to meet personally your
husband?

Q You said that he was yelling at you, what else, did he do to

you if any?
A He was nagging at me at that time and I just ignore him
because I want to avoid trouble for fear that he will beat me
again. Perhaps he was disappointed because I just ignore
him of his provocation and he switch off the light and I said
to him, 'why did you switch off the light when the children
were there.' At that time I was also attending to my children
who were doing their assignments. He was angry with me
for not answering his challenge, so he went to the kitchen
and [got] a bolo and cut the antenna wire to stop me from
watching television.
Q What did he do with the bolo?

A Yes, sir.
A He cut the antenna wire to keep me from watching T.V.
Q What time?
Q What else happened after he cut the wire?
A When I arrived home, he was there already in his usual
behavior.
Q Will you tell this Court what was his disposition?

A He switch off the light and the children were shouting

because they were scared and he was already holding the
bolo.

Q How do you described this bolo?

A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else happened as
Ben was carrying that bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack you?
A When I attempt to run he held my hands and he whirled
me and I fell to the bedside.
Q So when he whirled you, what happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on the
bedside?
A Yes, sir.

A After a couple of hours, he went back again and he got

angry with me for packing his clothes, then he dragged me
again of the bedroom holding my neck.
Q You said that when Ben came back to your house, he
dragged you? How did he drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her
right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and
then he kept on shouting at me that 'you might as well be
killed so there will be nobody to nag me.'
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?

Q You screamed for help and he left, do you know where he

was going?

A I was aware that it was a gun.

A Outside perhaps to drink more.

COURT INTERPRETER:

Q When he left what did you do in that particular time?

(At this juncture the witness started crying).

A I packed all his clothes.

ATTY. TABUCANON:

Q What was your reason in packing his clothes?

Q Were you actually brought to the drawer?

A I wanted him to leave us.

A Yes, sir.

Q During this time, where were your children, what were

their reactions?

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to

open the drawer but he could not open it because he did not
have the key then he pulled his wallet which contained a
blade about 3 inches long and I was aware that he was
going to kill me and I smashed his arm and then the wallet
and the blade fell. The one he used to open the drawer I
saw, it was a pipe about that long, and when he was about
to pick-up the wallet and the blade, I smashed him then I
ran to the other room, and on that very moment everything
on my mind was to pity on myself, then the feeling I had on
that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

Q Is it a flexible blade?

COURT INTERPRETER:

Q With the same blade?

(The witness at this juncture is crying intensely).

xxx

xxx

A It's a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.

A Yes, sir, that was the object used when he intimidate

me." 38

xxx

ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade, for the record will you
please describe this blade about 3 inches long, how does it
look like?
A Three (3) inches long and 1/2 inch wide.

In addition, Dra. Natividad Dayan was called by the RTC to testify as

an expert witness to assist it in understanding the psyche of a
battered person. She had met with Marivic Genosa for five sessions
totaling about seventeen hours. Based on their talks, the former
briefly related the latter's ordeal to the court a quo as follows:
"Q: What can you say, that you found Marivic as a battered
wife? Could you in layman's term describe to this Court what
her life was like as said to you?
A: What I remember happened then was it was more than
ten years, that she was suffering emotional anguish. There
were a lot of instances of abuses, to emotional abuse, to
verbal abuse and to physical abuse. The husband had a very
meager income, she was the one who was practically the
bread earner of the family. The husband was involved in a
lot of vices, going out with barkadas, drinking, even
womanizing being involved in cockfight and going home
very angry and which will trigger a lot of physical abuse. She
also had the experience a lot of taunting from the husband
for the reason that the husband even accused her of
infidelity, the husband was saying that the child she was
carrying was not his own. So she was very angry, she was at
the same time very depressed because she was also aware,
almost like living in purgatory or even hell when it was
happening day in and day out." 39

In cross-examining Dra. Dayan, the public prosecutor not merely

elicited, but wittingly or unwittingly put forward, additional
supporting evidence as shown below:

A Sir, I could not remember but I was told that she was
battered in that room.
Q Several times in that room?

"Q In your first encounter with the appellant in this case in

1999, where you talked to her about three hours, what was
the most relevant information did you gather?

A Yes, sir. What I remember was that there is no problem

about being battered, it really happened.

A The most relevant information was the tragedy that

happened. The most important information were escalating
abuses that she had experienced during her marital life.

Q Being an expert witness, our jurisprudence is not

complete on saying this matter. I think that is the first time
that we have this in the Philippines, what is your opinion?

Q Before you met her in 1999 for three hours, we presume

that you already knew of the facts of the case or at least you
have substantial knowledge of the facts of the case?

A Sir, my opinion is, she is really a battered wife and in this

kind happened, it was really a self-defense. I also believe
that there had been provocation and I also believe that she
became a disordered person. She had to suffer anxiety
reaction because of all the battering that happened and so
she became an abnormal person who had lost she's not
during the time and that is why it happened because of all
the physical battering, emotional battering, all the
psychological abuses that she had experienced from her
husband.

A I believe I had an idea of the case, but I do not know

whether I can consider them as substantial.
xxx

xxx

xxx

Q Did you gather an information from Marivic that on the

side of her husband they were fond of battering their wives?
A I also heard that from her?

Q I do believe that she is a battered wife. Was she extremely

battered?

Q You heard that from her?

A Sir, it is an extreme form of battering. Yes.40

A Yes, sir.
Q Did you ask for a complete example who are the relatives
of her husband that were fond of battering their wives?
A What I remember that there were brothers of her husband
who are also battering their wives.
Q Did she not inform you that there was an instance that
she stayed in a hotel in Ormoc where her husband followed
her and battered [her] several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?

Parenthetically, the credibility of appellant was demonstrated as

follows:
"Q And you also said that you administered [the] objective
personality test, what x x x [is this] all about?
A The objective personality test is the Millon Clinical
Multiaxial Inventory. The purpose of that test is to find out
about the lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the
truth, or is she someone who can exaggerate or x x x [will]
tell a lie[?]

Q And what did you discover on the basis of this objective

personality test?
A She was a person who passed the honesty test. Meaning
she is a person that I can trust. That the data that I'm
gathering from her are the truth."41
The other expert witness presented by the defense, Dr. Alfredo
Pajarillo, testified on his Psychiatric Report, 42which was based on his
interview and examination of Marivic Genosa. The Report said that
during the first three years of her marriage to Ben, everything
looked good -- the atmosphere was fine, normal and happy -- until
"Ben started to be attracted to other girls and was also enticed
in[to] gambling[,] especially cockfighting. x x x. At the same time
Ben was often joining his barkada in drinking sprees."
The drinking sprees of Ben greatly changed the attitude he showed
toward his family, particularly to his wife. The Report continued: "At
first, it was verbal and emotional abuses but as time passed, he
became physically abusive. Marivic claimed that the viciousness of
her husband was progressive every time he got drunk. It was a
painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been
married for twelve years[;] and practically more than eight years,
she was battered and maltreated relentlessly and mercilessly by
her husband whenever he was drunk."
Marivic sought the help of her mother-in-law, but her efforts were in
vain. Further quoting from the Report, "[s]he also sought the advice
and help of close relatives and well-meaning friends in spite of her
feeling ashamed of what was happening to her. But incessant
battering became more and more frequent and more severe. x x
x."43

immediately surrounding the incident. A Canadian court has aptly

pointed out that expert evidence on the psychological effect of
battering on wives and common law partners are both relevant and
necessary. "How can the mental state of the appellant be
appreciated without it? The average member of the public may ask:
Why would a woman put up with this kind of treatment? Why
should she continue to live with such a man? How could she love a
partner who beat her to the point of requiring hospitalization? We
would expect the woman to pack her bags and go. Where is her
self-respect? Why does she not cut loose and make a new life for
herself? Such is the reaction of the average person confronted with
the so-called 'battered wife syndrome.'" 44
To understand the syndrome properly, however, one's viewpoint
should not be drawn from that of an ordinary, reasonable person.
What goes on in the mind of a person who has been subjected to
repeated, severe beatings may not be consistent with -- nay,
comprehensible to -- those who have not been through a similar
experience. Expert opinion is essential to clarify and refute
common myths and misconceptions about battered women. 45
The theory of BWS formulated by Lenore Walker, as well as her
research on domestic violence, has had a significant impact in the
United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with
the killing of her violent partner. The psychologist explains that the
cyclical nature of the violence inflicted upon the battered woman
immobilizes the latter's "ability to act decisively in her own
interests, making her feel trapped in the relationship with no means
of escape."46 In her years of research, Dr. Walker found that "the
abuse often escalates at the point of separation and battered
women are in greater danger of dying then."47

Effect of Battery on Appellant

Corroborating these research findings, Dra. Dayan said that "the

battered woman usually has a very low opinion of herself. She has x
x x self-defeating and self-sacrificing characteristics. x x x [W]hen
the violence would happen, they usually think that they provoke[d]
it, that they were the one[s] who precipitated the violence[; that]
they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them."48

Because of the recurring cycles of violence experienced by the

abused woman, her state of mind metamorphoses. In determining
her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events

According to Dra. Dayan, there are a lot of reasons why a battered

woman does not readily leave an abusive partner -- poverty, selfblame and guilt arising from the latter's belief that she provoked
the violence, that she has an obligation to keep the family intact at

From the totality of evidence presented, there is indeed no doubt in

the Court's mind that Appellant Marivic Genosa was a severely
abused person.

all cost for the sake of their children, and that she is the only hope
for her spouse to change.49

typically lacks a means of self-support, but also because she fears

that if she leaves she would be found and hurt even more. 57

The testimony of another expert witness, Dr. Pajarillo, is also

helpful. He had previously testified in suits involving violent family
relations, having evaluated "probably ten to twenty thousand"
violent family disputes within the Armed Forces of the Philippines,
wherein such cases abounded. As a result of his experience with
domestic violence cases, he became a consultant of the Battered
Woman Office in Quezon City. As such, he got involved in about
forty (40) cases of severe domestic violence, in which the physical
abuse on the woman would sometimes even lead to her loss of
consciousness.50

In the instant case, we meticulously scoured the records for specific

evidence establishing that appellant, due to the repeated abuse
she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however,
failed to find sufficient evidence that would support such a
conclusion. More specifically, we failed to find ample evidence that
would confirm the presence of the essential characteristics of BWS.

Dr. Pajarillo explained that "overwhelming brutality, trauma" could

result in posttraumatic stress disorder, a form of "anxiety neurosis
or neurologic anxietism."51 After being repeatedly and severely
abused, battered persons "may believe that they are essentially
helpless, lacking power to change their situation. x x x [A]cute
battering incidents can have the effect of stimulating the
development of coping responses to the trauma at the expense of
the victim's ability to muster an active response to try to escape
further trauma. Furthermore, x x x the victim ceases to believe that
anything she can do will have a predictable positive effect." 52
A study53 conducted by Martin Seligman, a psychologist at the
University of Pennsylvania, found that "even if a person has control
over a situation, but believes that she does not, she will be more
likely to respond to that situation with coping responses rather than
trying to escape." He said that it was the cognitive aspect -- the
individual's thoughts -- that proved all-important. He referred to this
phenomenon as "learned helplessness." "[T]he truth or facts of a
situation turn out to be less important than the individual's set of
beliefs or perceptions concerning the situation. Battered women
don't attempt to leave the battering situation, even when it may
seem to outsiders that escape is possible, because they cannot
predict their own safety; they believe that nothing they or anyone
else does will alter their terrible circumstances." 54
Thus, just as the battered woman believes that she is somehow
responsible for the violent behavior of her partner, she also
believes that he is capable of killing her, and that there is no
escape.55 Battered women feel unsafe, suffer from pervasive
anxiety, and usually fail to leave the relationship. 56 Unless a shelter
is available, she stays with her husband, not only because she

The defense fell short of proving all three phases of the "cycle of
violence" supposedly characterizing the relationship of Ben and
Marivic Genosa. No doubt there were acute battering incidents. In
relating to the court a quo how the fatal incident that led to the
death of Ben started, Marivic perfectly described the tensionbuilding phase of the cycle. She was able to explain in adequate
detail the typical characteristics of this stage. However, that single
incident does not prove the existence of the syndrome. In other
words, she failed to prove that in at least another battering episode
in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up
prior to acute battering? How did Marivic normally respond to Ben's
relatively minor abuses? What means did she employ to try to
prevent the situation from developing into the next (more violent)
stage?
Neither did appellant proffer sufficient evidence in regard to the
third phase of the cycle. She simply mentioned that she would
usually run away to her mother's or father's house; 58 that Ben
would seek her out, ask for her forgiveness and promise to change;
and that believing his words, she would return to their common
abode.
Did she ever feel that she provoked the violent incidents between
her and her spouse? Did she believe that she was the only hope for
Ben to reform? And that she was the sole support of his emotional
stability and well-being? Conversely, how dependent was she on
him? Did she feel helpless and trapped in their relationship? Did
both of them regard death as preferable to separation?
In sum, the defense failed to elicit from appellant herself her
factual experiences and thoughts that would clearly and fully
demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert

witnesses for the defense. Indeed, they were able to explain fully,
albeit merely theoretically and scientifically, how the personality of
the battered woman usually evolved or deteriorated as a result of
repeated and severe beatings inflicted upon her by her partner or
spouse. They corroborated each other's testimonies, which were
culled from their numerous studies of hundreds of actual
cases. However, they failed to present in court the factual
experiences and thoughts that appellant had related to them -- if at
all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a
modifying circumstance must be proven in order to be appreciated.
To repeat, the records lack supporting evidence that would
establish all the essentials of the battered woman syndrome as
manifested specifically in the case of the Genosas.

Second. Reasonable necessity of the means employed to

prevent or repel it;
Third. Lack of sufficient provocation on the part of the
person defending himself."
Unlawful aggression is the most essential element of selfdefense.63 It presupposes actual, sudden and unexpected attack -or an imminent danger thereof -- on the life or safety of a
person.64 In the present case, however, according to the testimony
of Marivic herself, there was a sufficient time interval between the
unlawful aggression of Ben and her fatal attack upon him. She had
already been able to withdraw from his violent behavior and escape
to their children's bedroom. During that time, he apparently ceased
his attack and went to bed. The reality or even the imminence of
the danger he posed had ended altogether. He was no longer in a
position that presented an actual threat on her life or safety.

BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does
not in itself establish the legal right of the woman to kill her
abusive partner. Evidence must still be considered in the context of
self-defense.59
From the expert opinions discussed earlier, the Court reckons
further that crucial to the BWS defense is the state of mind of the
battered woman at the time of the offense 60 -- she must have
actually feared imminent harm from her batterer and honestly
believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one who
resorts to self-defense must face a real threaton one's life; and the
peril sought to be avoided must be imminent and actual, not
merely imaginary.61 Thus, the Revised Penal Code provides the
following requisites and effect of self-defense:62
"Art. 11. Justifying circumstances. -- The following do not
incur any criminal liability:
"1. Anyone who acts in defense of his person or rights,
provided that the following circumstances concur;
First. Unlawful aggression;

Had Ben still been awaiting Marivic when she came out of their
children's bedroom -- and based on past violent incidents, there
was a great probability that he would still have pursued her and
inflicted graver harm -- then, the imminence of the real threat upon
her life would not have ceased yet. Where the brutalized person is
already suffering from BWS, further evidence of actual physical
assault at the time of the killing is not required. Incidents of
domestic battery usually have a predictable pattern. To require the
battered person to await an obvious, deadly attack before she can
defend her life "would amount to sentencing her to 'murder by
installment.'"65 Still, impending danger (based on the conduct of
the victim in previous battering episodes) prior to the defendant's
use of deadly force must be shown. Threatening behavior or
communication
can
satisfy
the
required
imminence
of
danger.66 Considering such circumstances and the existence of
BWS, self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous, does
not warrant self-defense.67 In the absence of such aggression, there
can be no self-defense -- complete or incomplete -- on the part of
the victim.68 Thus, Marivic's killing of Ben was not completely
justified under the circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she did not raise any
other modifying circumstances that would alter her penalty, we

deem it proper to evaluate and appreciate in her favor

circumstances that mitigate her criminal liability. It is a hornbook
doctrine that an appeal in a criminal case opens it wholly for review
on any issue, including that which has not been raised by the
parties.69
From several psychological tests she had administered to Marivic,
Dra. Dayan, in her Psychological Evaluation Report dated November
29, 2000, opined as follows:
"This is a classic case of a Battered Woman Syndrome. The
repeated battering Marivic experienced with her husband
constitutes a form of [cumulative] provocation which broke
down her psychological resistance and natural self-control. It
is very clear that she developed heightened sensitivity to
sight of impending danger her husband posed continuously.
Marivic truly experienced at the hands of her abuser
husband a state of psychological paralysis which can only be
ended by an act of violence on her part." 70
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained
that the effect of "repetitious pain taking, repetitious battering,
[and] repetitious maltreatment" as well as the severity and the
prolonged administration of the battering is posttraumatic stress
disorder.71 Expounding thereon, he said:
"Q What causes the trauma, Mr. Witness?

banging of the head like that. It is usually the very very

severe stimulus that precipitate this post[t]raumatic stress
disorder. Others are suffocating the victim like holding a
pillow on the face, strangulating the individual, suffocating
the individual, and boxing the individual. In this situation
therefore, the victim is heightened to painful stimulus, like
for example she is pregnant, she is very susceptible because
the woman will not only protect herself, she is also to
protect the fetus. So the anxiety is heightened to the end
[sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness,
how do you classify?
A We classify the disorder as [acute], or chronic or delayed
or [a]typical.
Q Can you please describe this pre[-]classification you called
delayed or [atypical]?
A The acute is the one that usually require only one
battering and the individual will manifest now a severe
emotional
instability,
higher
irritability
remorse,
restlessness, and fear and probably in most [acute] cases
the first thing will be happened to the individual will be
thinking of suicide.
Q And in chronic cases, Mr. Witness?

A What causes the trauma is probably the repetitious

battering. Second, the severity of the battering. Third, the
prolonged administration of battering or the prolonged
commission of the battering and the psychological and
constitutional stamina of the victim and another one is the
public and social support available to the victim. If nobody is
interceding, the more she will go to that disorder....
xxx

xxx

xxx

Q You referred a while ago to severity. What are the

qualifications in terms of severity of the postraumatic stress
disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er
this post[t]raumatic stress disorder is injury to the head,

A The chronic cases is this repetitious battering, repetitious

maltreatment, any prolonged, it is longer than six (6)
months. The [acute] is only the first day to six (6) months.
After this six (6) months you become chronic. It is stated in
the book specifically that after six (6) months is chronic. The
[a]typical one is the repetitious battering but the individual
who is abnormal and then become normal. This is how you
get neurosis from neurotic personality of these cases of
post[t]raumatic stress disorder." 72
Answering the questions propounded by the trial judge, the expert
witness clarified further:

"Q But just the same[,] neurosis especially on battered

woman syndrome x x x affects x x x his or her mental
capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated." 73
In sum, the cyclical nature and the severity of the violence inflicted
upon appellant resulted in "cumulative provocation which broke
down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating or
impairment of memory."
Based on the explanations of the expert witnesses, such
manifestations were analogous to an illness that diminished the
exercise by appellant of her will power without, however, depriving
her of consciousness of her acts.There was, thus, a resulting
diminution of her freedom of action, intelligence or intent. Pursuant
to paragraphs 974and 1075 of Article 13 of the Revised Penal Code,
this circumstance should be taken in her favor and considered as a
mitigating factor. 76
In addition, we also find in favor of appellant the extenuating
circumstance of having acted upon an impulse so powerful as to
have naturally produced passion and obfuscation. It has been held
that this state of mind is present when a crime is committed as a
result of an uncontrollable burst of passion provoked by prior unjust
or improper acts or by a legitimate stimulus so powerful as to
overcome reason.77 To appreciate this circumstance, the following
requisites should concur: (1) there is an act, both unlawful and
sufficient to produce such a condition of mind; and (2) this act is
not far removed from the commission of the crime by a
considerable length of time, during which the accused might
recover her normal equanimity.78
Here, an acute battering incident, wherein Ben Genosa was the
unlawful aggressor, preceded his being killed by Marivic. He had
further threatened to kill her while dragging her by the neck
towards a cabinet in which he had kept a gun. It should also be
recalled that she was eight months pregnant at the time. The
attempt on her life was likewise on that of her fetus. 79 His abusive

and violent acts, an aggression which was directed at the lives of

both Marivic and her unborn child, naturally produced passion and
obfuscation overcoming her reason. Even though she was able to
retreat to a separate room, her emotional and mental state
continued. According to her, she felt her blood pressure rise; she
was filled with feelings of self-pity and of fear that she and her baby
were about to die. In a fit of indignation, she pried open the cabinet
drawer where Ben kept a gun, then she took the weapon and used
it to shoot him.
The confluence of these events brings us to the conclusion that
there was no considerable period of time within which Marivic could
have recovered her normal equanimity. Helpful is Dr. Pajarillo's
testimony80 that with "neurotic anxiety" -- a psychological effect on
a victim of "overwhelming brutality [or] trauma" -- the victim
relives the beating or trauma as if it were real, although she is not
actually being beaten at the time. She cannot control "reexperiencing the whole thing, the most vicious and the trauma that
she suffered." She thinks "of nothing but the suffering." Such
reliving which is beyond the control of a person under similar
circumstances, must have been what Marivic experienced during
the brief time interval and prevented her from recovering her
normal equanimity. Accordingly, she should further be credited with
the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological
paralysis as well as passion and obfuscation -- did not arise from
the same set of facts.
On the one hand, the first circumstance arose from the cyclical
nature and the severity of the battery inflicted by the battererspouse upon appellant. That is, the repeated beatings over a period
of time resulted in her psychological paralysis, which was
analogous to an illness diminishing the exercise of her will power
without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the
violent aggression he had inflicted on her prior to the killing. That
the incident occurred when she was eight months pregnant with
their child was deemed by her as an attempt not only on her life,
but likewise on that of their unborn child. Such perception naturally
produced passion and obfuscation on her part.
Second Legal Issue:

Treachery

Q What is there in the drawer?

There is treachery when one commits any of the crimes against

persons by employing means, methods or forms in the execution
thereof without risk to oneself arising from the defense that the
offended party might make.81 In order to qualify an act as
treacherous, the circumstances invoked must be proven as
indubitably as the killing itself; they cannot be deduced from mere
inferences, or conjectures, which have no place in the appreciation
of evidence.82 Because of the gravity of the resulting offense,
treachery must be proved as conclusively as the killing itself. 83

A I was aware that it was a gun.

Ruling that treachery was present in the instant case, the trial court
imposed the penalty of death upon appellant. It inferred this
qualifying circumstances merely from the fact that the lifeless body
of Ben had been found lying in bed with an "open, depressed,
circular" fracture located at the back of his head. As to exactly how
and when he had been fatally attacked, however, the prosecution
failed to establish indubitably. Only the following testimony of
appellant leads us to the events surrounding his death:
"Q You said that when Ben came back to your house, he
dragged you? How did he drag you?
COURT:
The witness demonstrated to the Court by using her
right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.

COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to
open the drawer but he could not open it because he did not
have the key then he pulled his wallet which contained a
blade about 3 inches long and I was aware that he was
going to kill me and I smashed his arm and then the wallet
and the blade fell. The one he used to open the drawer I
saw, it was a pipe about that long, and when he was about
to pick-up the wallet and the blade, I smashed him then I
ran to the other room, and on that very moment everything
on my mind was to pity on myself, then the feeling I had on
that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER

ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and
then he kept on shouting at me that 'you might as well be
killed so there will be nobody to nag me'
Q So you said that he dragged you towards the drawer?
A Yes, sir.

(The witness at this juncture is crying intensely).

xxx

xxx

xxx

Q You said that he dropped the blade, for the record will you
please describe this blade about 3 inches long, how does it
look like?
A Three (3) inches long and inch wide.
Q It is a flexible blade?

A It's a cutter.

Q You said you went to the room, what else happened?

Q How do you describe the blade, is it sharp both edges?

A Considering all the physical sufferings that I've been

through with him, I took pity on myself and I felt I was about
to die also because of my blood pressure and the baby, so I
got that gun and I shot him.

A Yes, because he once used it to me.

Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me.
xxx

xxx

xxx

ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the blade, I pick-up the
pipe and I smashed him and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt the same thing like
what happened before when I was admitted in PHILPHOS
Clinic, I was about to vomit. I know my blood pressure was
raised. I was frightened I was about to die because of my
blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and
smashed him, the witness at the same time pointed
at the back of her neck or the nape).
ATTY. TABUCANON:

COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer."84
The above testimony is insufficient to establish the presence of
treachery. There is no showing of the victim's position relative to
appellant's at the time of the shooting. Besides, equally axiomatic
is the rule that when a killing is preceded by an argument or a
quarrel, treachery cannot be appreciated as a qualifying
circumstance, because the deceased may be said to have been
forewarned and to have anticipated aggression from the assailant. 85
Moreover, in order to appreciate alevosia, the method of assault
adopted by the aggressor must have been consciously and
deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by
the party attacked.86 There is no showing, though, that the present
appellant intentionally chose a specific means of successfully
attacking her husband without any risk to herself from any
retaliatory act that he might make. To the contrary, it appears that
the thought of using the gun occurred to her only at about the
same moment when she decided to kill her batterer-spouse. In the
absence of any convincing proof that she consciously and
deliberately employed the method by which she committed the
crime in order to ensure its execution, this Court resolves the doubt
in her favor.87
Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised
Penal Code is reclusion perpetua to death. Since two mitigating
circumstances and no aggravating circumstance have been found
to have attended the commission of the offense, the penalty shall

be lowered by one (1) degree, pursuant to Article 64 of paragraph

588 of the same Code.89 The penalty of reclusion temporal in its
medium period is imposable, considering that two mitigating
circumstances are to be taken into account in reducing the penalty
by one degree, and no other modifying circumstances were shown
to have attended the commission of the offense. 90 Under the
Indeterminate Sentence Law, the minimum of the penalty shall be
within the range of that which is next lower in degree -- prision
mayor -- and the maximum shall be within the range of the medium
period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it
just and proper to impose the penalty of prision mayor in its
minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years 8
months and 1 day as maximum. Noting that appellant has already
served the minimum period, she may now apply for and be
released from detention on parole.91
Epilogue
Being a novel concept in our jurisprudence, the battered woman
syndrome was neither easy nor simple to analyze and recognize
vis--vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It
took great effort beyond the normal manner in which decisions are
made -- on the basis of existing law and jurisprudence applicable to
the proven facts. To give a just and proper resolution of the case, it
endeavored to take a good look at studies conducted here and
abroad in order to understand the intricacies of the syndrome and
the distinct personality of the chronically abused person. Certainly,
the Court has learned much. And definitely, the solicitor general
and appellant's counsel, Atty. Katrina Legarda, have helped it in
such learning process.
While our hearts empathize with recurrently battered persons, we
can only work within the limits of law, jurisprudence and given
facts. We cannot make or invent them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of selfdefense arising from the battered woman syndrome. We now sum
up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two
battering episodes between the appellant and her intimate

partner. Second, the final acute battering episode preceding the

killing of the batterer must have produced in the battered person's
mind an actual fear of an imminent harm from her batterer and an
honest belief that she needed to use force in order to save her
life. Third, at the time of the killing, the batterer must have posed
probable -- not necessarily immediate and actual -- grave harm to
the accused, based on the history of violence perpetrated by the
former against the latter. Taken altogether, these circumstances
could satisfy the requisites of self-defense. Under the existing facts
of the present case, however, not all of these elements were duly
established.
WHEREFORE, the conviction of Appellant Marivic Genosa for
parricide is hereby AFFIRMED. However, there being two (2)
mitigating circumstances and no aggravating circumstance
attending her commission of the offense, her penalty
is REDUCED to six (6) years and one (1) day of prision mayor as
minimum; to 14 years, 8 months and 1 day of reclusion temporal as
maximum.
Inasmuch as appellant has been detained for more than the
minimum penalty hereby imposed upon her, the director of the
Bureau of Corrections may immediately RELEASE her from custody
upon due determination that she is eligible for parole, unless she is
being held for some other lawful cause. Costs de oficio.
SO ORDERED.

BELLOSILLO, J.:
GUILLERMO FLORENDO alias Imong was found guilty of parricide
with the aggravating circumstance of cruelty and sentenced to
death. He was ordered to indemnify the heirs of his wife, Erlinda
Ragudo Florendo, the amount of P500,000.00 in moral and
exemplary damages and to pay the costs of suit. His conviction is
the subject of this automatic review.1
The records show that on 28 August 1996 at around 2:30 in the
afternoon appellant and his wife Erlinda were inside their house
engaged in an animated conversation. Living with them in the
same house in Barangay Bulbulala, La Paz, Abra, was appellants
father Agustin Florendo. After Erlinda was heard to have told Imong
to go to sleep, the latter all of a sudden and without any
provocation hacked Erlinda with a bolo in the head and other parts
of her body. The victim could only exclaim, "Patayennak met ni
Imong ngen (Imong is going to kill me)!"2
Agustin, who was resting at that time, witnessed the incident.
Instead of stopping appellant, Agustin left the house for fear that
his son would also attack him. Agustin sought help from his
immediate neighbor, Ernesto Anical, and told him, "Kasano Erning,
patayen yen met ni Imong ni baketnan (How is this Erning, Imong is
killing his wife)!"3Ernesto too became frightened and did not go out
of his house; instead, he told Agustin to go to the barangay captain
for assistance.
Agustin went to the house of Barangay Captain Godofredo Apuya to
report the incident but the latter was not there. Thus, the wife of
the barangay captain, upon being apprised of what happened,
hurriedly went out to look for any available barangay tanod for
assistance and was able to contact Barangay Tanod Felipe Adora.
Agustin, on the other hand, restrained by fear and shock, stayed at
the barangay captains house and when he finally returned at about
4:00 oclock in the afternoon Erlinda was already dead.
G.R. No. 136845

October 8, 2003

PEOPLE OF THE PHILIPPINES, appellee,

vs.
GUILLERMO FLORENDO alias "IMONG," appellant.
DECISION

In the meantime, appellant ran to the house of the barangay

captain after hacking his wife. When Barangay Tanod Felipe Adora
arrived at the house of the barangay captain, he found appellant
there holding a bloodied bolo, his hands and feet dripping with
blood. Felipe advised appellant to yield his bolo but the latter did
not respond. This prompted Felipe to grab his hand and take away
his bolo. When Barangay Captain Godofredo Apuya arrived, he
asked appellant why his hand and feet were covered with blood but

the latter did not answer. Appellant was later taken to the La Paz
District Hospital for treatment of his wound and the police
authorities of La Paz thereafter took him into custody pending
investigation of the incident.
Dr. Corazon Lalin Brioso, Municipal Health Officer of La Paz,
autopsied the cadaver of the victim and found that she sustained
sixteen (16) wounds on various parts of her body, four (4) of which
were considered fatal and resulted in her instantaneous death due
to
hypovalemic
shock
caused
by
massive
hemorrhage.41a\^/phi1.net
On 2 September 1996 appellant was committed at the Abra
Provincial Jail. During his confinement, he was observed to be
having difficulty in sleeping. He could not eat during meal times.
Most of the time he would stand in his cell without talking to
anyone. Thus on 9 September 1996 he was treated as an
outpatient at the Abra Provincial Hospital (APH). The Provincial
Warden then requested a psychiatric examination of appellant to
determine whether he was fit to be arraigned. 5
On 17 October 1996 appellant was supposed to be arraigned but he
appeared without counsel and remained unresponsive to the
questions propounded to him. On the same date, the trial court
referred appellant to the Baguio General Hospital and Medical
Center (BGHMC) for psychiatric evaluation since there was no
psychiatrist at the APH. On 20 November 1996 he went to the
BGHMC for consultation and was admitted and managed as a case
of schizophrenic psychosis, paranoid type (schizophreniform
disorder).6 He was detained at the hospital and given medication
for his illness. On 7 June 1997, after confinement for six (6) months
and eighteen (18) days, he was discharged and recommitted to the
provincial jail as he was found fit to face the charges against
him.7 When finally arraigned on 12 August 1997 appellant pleaded
not guilty.
At the pre-trial conference, appellant admitted killing his wife but
put up the defense of insanity to claim exemption from criminal
liability. At the initial hearing, the prosecution presented Agustin
Florendo, Godofredo Apuya, Ernesto Anical, Felipe Adora and Dr.
Corazon Lalin Brioso as witnesses.
Agustin Florendo attested that his son was not in his proper senses
on the day of the incident and repeated on cross-examination that

appellant was crazy and had been behaving strangely for one (1)
year before the incident.8
Barangay Captain Godofredo Apuya, on the other hand, stated that
he already knew that appellant was mentally ill because in two (2)
instances, three. (3) months prior to the incident, he saw him
singing, dancing and clapping his hands in their yard. 9 Witness
Ernesto Anical stated further that on the day of the incident
appellant was not in his right senses as he saw him sharpening his
bolo with his eyes red and looking very sharp. Yet, he likewise
testified that appellant would join the people in their barangay in
their drinking sprees and when already drunk he would beat his
wife.10
Barangay Tanod Felipe Adora also testified that appellant had been
behaving oddly and was somewhat crazy as he saw him ten (10)
days before the incident singing and talking to himself. 11 Both
Godofredo Apuya and Felipe Adora stated that appellant suspected
that his wife was having an affair with Godofredo for he once went
to the house of Godofredo looking for her. But before the trial could
prosper, the presiding judge received a letter from the provincial
warden asking for the recommitment of appellant to the BGHMC
because of his unstable mental condition. On 8 June 1998 the trial
court directed the examination and treatment of appellant but not
his admission in the hospital. Nonetheless, appellant was
readmitted at the BGHMC on 11 June 1998 and discharged on 7
August 1998.
On 10 August 1998, upon the assurance of Dr. Elsie I. Caducoy that
appellant was fit to stand trial, appellant was called to testify. He
stated that he did not remember anything that happened on 28
August 1996 but recalled seeing his children days before the
incident; that he was brought to the provincial jail by the police
authorities; that he thumbmarked a form given him in jail; that he
came to know about the death of his wife only when his father told
him about it while he was in jail; and, that he did not know
Barangay Captain Apuya when asked about his alleged affair with
his wife.12
In the assailed Decision dated 19 August 1998 the trial court held
that the crime committed was parricide. While no marriage
certificate was presented to prove the relationship between
appellant and the victim, such fact was evident from the
testimonies of the witnesses and appellant himself who averred
that the victim was his legitimate wife; that the aggravating

circumstance of cruelty was present because the victim suffered

sixteen (16) wounds; that while it was true that there was evidence
that appellant was observed to be doing things out of the ordinary,
like singing in English, dancing, laughing or talking alone, there was
also evidence that he was socializing freely with the other young
men in the barangay; that all these were indicative only of mental
abnormality that did not excuse him from imputability for the
offense; that no expert witness was presented to testify on the
insanity of appellant; and, the motive of appellant in killing his wife
was jealousy.
Appellant Florendo now contends that the trial court erred in not
acquitting him on the ground of insanity; for appreciating cruelty
instead as an aggravating circumstance in the commission of the
crime, and for upholding the legitimacy of his common-law
relationship with the victim in order to bring the killing within the
ambit of Art. 246 of The Revised Penal Code.
The Court rejects the plea of insanity.1a\^/phi1.net Insanity under
Art. 12, par. 1, of The Revised Penal Code exists when there is a
complete deprivation of intelligence in committing the act, i.e.,
appellant is deprived of reason; he acts without the least
discernment because of complete absence of the power to discern;
or, there is a total deprivation of freedom of the will. The onus
probandi rests upon him who invokes insanity as an exempting
circumstance, and he must prove it by clear and convincing
evidence.13
The alleged insanity of Florendo was not substantiated by sufficient
evidence. He was not completely bereft of reason or discernment
and freedom of will when he mortally hacked his wife. The following
circumstances14 clearly and unmistakably negate a complete
absence of intelligence on his part when he committed the felony:
(a) He was apparently well until about three (3) to four (4) months
prior to his admission in the hospital when he was noted to have
blank stares, claiming that he was in deep thought because he
suspected his wife of having an extramarital affair, and at times
would confront his wife about the matter but the latter would deny
it; (b) That he became irritable at home and was easily angered by
his childrens slightest mistakes; (c) That due to his jealousy he
claimed that he only wanted to frighten his wife with his bolo in
order to confront her but hacked her instead many times to death;
(d) He denied having hallucinations at that time or being possessed
by an evil spirit; (e) Immediately after the incident he went to the
barangay captain, never thought of running away, and apparently

felt guilty about what happened; (f) In jail, he said he started

having auditory hallucinations where he would hear voices
commanding him to do something but refused to elaborate on this;
and, (g) He claimed that he frequently thought of his three (3)
children whom he missed so much. These were hardly the acts of a
person with a sick mind.
A perusal of appellants testimony would show that he was aware of
his emotions, bearing and temperament. Except for his testimony
in open court that he had no recollection of what happened on 28
August 1996, he attested that he saw his children a few days
before the incident; that he was brought to the provincial jail by the
police authorities; and, that he thumbmarked a form given him in
jail. Since he remembered the vital circumstances surrounding the
ghastly incident, he must have been in full control of his mental
faculties. His recall of the events that transpired before, during and
after the stabbing incident, as well as the nature and contents of
his testimony, does not betray an aberrant mind. An insane person
has no full and clear understanding of the nature and
consequences of his act.
The issue of insanity is a question of fact for insanity is a condition
of the mind, not susceptible of the usual means of proof. As no man
would know what goes on in the mind of another, the state or
condition of a persons mind can only be measured and judged by
his behavior. Establishing the insanity of an accused requires
opinion testimony which may be given by a witness who is
intimately acquainted with appellant, or who has rational basis to
conclude that appellant was insane based on the witness own
perception of appellant, or who is qualified as an expert, such as a
psychiatrist.15
The first four (4) witnesses of the prosecution were one in alleging
that appellant was crazy and had lost his mind as they noticed him
to be behaving oddly, i.e., singing, dancing and talking to himself.
The prosecution witnesses may have testified that appellant
appeared to them to be insane prior to, during and subsequent to
the commission of the crime, but there is a vast difference between
an insane person and one who has worked himself into such a
frenzy of anger that he fails to use reason or good judgment in his
action. The fact that a person behaves crazily is not conclusive that
he is insane. The prevalent meaning of the word "crazy" is not
synonymous with the legal terms "insane," "non compos mentis,"
"unsound mind," "idiot," or "lunatic." The popular conception of the
word "crazy" is being used to describe a person or an act unnatural

or out of the ordinary. A man may behave in a crazy manner but it

does not necessarily and conclusively prove that he is legally so. 16
The evidence adduced consisting of the testimonies of the
prosecution witnesses that appellant was insane immediately
before or on the day the crime was committed consisted merely of
assumptions, and is too speculative, presumptive and conjectural
to be convincing. Their observation that appellant manifested
unusual behavior does not constitute sufficient proof of his insanity
because not every aberration of the mind or mental deficiency
constitutes insanity hence exempting.

to the commission of the crime of parricide described as

fearfulness,
irritability,
suspiciousness
and
jealousy
or
preoccupation with the fidelity of his wife. In retrospect, this group
of symptoms could have possibly been the prodromal phase
heralding the onset of the psychotic illness."19 The report revealed
that symptoms of appellants mental illness were conceivably
manifested prior to the date of the crime and that substantial
evidence was lacking to conclude that his abnormal behavior was
due to the use of drugs or any prohibited substance.20

Well-settled is the rule that an inquiry into the mental state of an

accused should relate to the period immediately before or at the
very moment the felony is committed. 18 The medical findings of the
BGHMC, which diagnosed appellants mental disorder as
schizophrenic psychosis, paranoid type, refer to appellants
treatment after the incident happened. It is bereft of any proof that
appellant was completely deprived of intelligence or discernment at
the time or at the very moment he killed his wife. It is inconclusive
as to whether he was insane at the time immediately preceding or
at the very moment of the killing.

As can be gleaned from the reports, appellant could only be

undergoing the percursory stages of a disease prior to and at the
time of the killing. It is, therefore, beyond cavil that assuming that
he had some form of mental illness by virtue of the premonitory
symptoms of schizophrenia, it did not totally deprive him of
intelligence. The presence of his reasoning faculties, which enabled
him to exercise sound judgment and satisfactorily articulate certain
matters such as his jealousy over the supposed infidelity of his
wife, sufficiently discounts any intimation of insanity when he
committed the dastardly crime. While appellant on many occasions
before the commission of the crime did things that would indicate
that he was not of sound mind, such acts only tended to show that
he was in an abnormal mental state and not necessarily of unsound
mind that would exempt him from criminal liability. Mere
abnormality of mental faculties will not exclude imputability. 21 The
odd or bizarre behavior of appellant prior to the commission of the
crime as described by the prosecution witnesses, if anything else,
did not completely deprive the offender of consciousness of his
acts. If the defense of insanity is sustained, the floodgates to abuse
will be opened by the cunning and ingenious public. Testimony that
a person acted in a crazy or deranged manner days before the
commission of the crime does not prove insanity. The grant of
absolution on the basis of insanity should be done with utmost care
and circumspection as the State must keep its guard against
murderers seeking to escape punishment through a general plea of
insanity.1awphi1.nt

In compliance with this Courts Resolution of 15 August 2000, an

evaluation of the psychological and psychiatric condition of
appellant was conducted by the Supreme Court Clinic Services at
the National Penitentiary on 22 August 2000. The neuro-psychiatric
evaluation report disclosed that appellant was suffering from
psychosis or insanity, classified as chronic schizophrenia, paranoid
type. It divulged further that "prior to the onset of the overt
psychotic symptoms, appellant manifested unusual behavior prior

We cannot sustain the ruling of the trial court that cruelty

aggravated the killing simply because according to the autopsy
report the victims body bore sixteen (16) wounds all in all, four (4)
of which were severe, deep and fatal. The number of wounds is not
a test for determining cruelty; it is whether appellant deliberately
and sadistically augmented the victims suffering. Thus, there must
be proof that the victim was made to agonize before appellant
rendered the blow which snuffed out her life. 22 Although Erlinda

In the case at bar, appellant was diagnosed to be suffering from

schizophrenia when he was committed to the BGHMC a few months
after he killed his wife. Medical books describe schizophrenia as a
chronic mental disorder characterized by a persons inability to
distinguish between fantasy and reality, and is often accompanied
by hallucinations and delusions. Symptomatically, schizophrenic
reactions are recognizable through odd and bizarre behavior
apparent in aloofness or periods of impulsive destructiveness and
immature and exaggerated emotionality. During the initial stage,
the common early symptom is aloofness, a withdrawal behind
barriers of loneliness, hopelessness, hatred and fear. Frequently,
the patient would seem preoccupied and dreamy and may appear
"far away."17

received sixteen (16) wounds in all there is no showing that

appellant deliberately and inhumanly increased her suffering. At
any rate, even if cruelty is proved, it cannot be appreciated against
appellant to raise the penalty to death as this was not alleged in
the Information. Under Sec. 9, Rule 110, of The Revised Rules of
Criminal Procedure, which took effect on 1 December 2000,
aggravating circumstances must be alleged in the information or
complaint, otherwise, they cannot be properly appreciated. Being
favorable to appellant, this procedural rule must be given
retroactive application.

indemnity ex delicto, which award is mandatory and requires no

proof other than the victims death.26

As to the marriage of the victim and appellant, the trial court

properly upheld its legitimacy. In parricide, the best proof of
relationship between appellant and the deceased is the marriage
certificate, and in the absence thereof, oral evidence of the fact of
marriage may be considered. The testimony of appellant that he
was married to the deceased is an admission against his penal
interest. It is a confirmation of the sem per praesumitur matrimonio
and the presumption that "a man and a woman deporting
themselves as husband and wife have entered into a lawful
contract of marriage."23 Even if the marriage certificate was not
presented, that the victim was the legitimate wife of appellant is
evident from the testimonies of the prosecution witnesses. In open
court, appellant himself volunteered the information in his offer of
evidence through counsel and on direct examination that the victim
was his legitimate wife.

SO ORDERED.

WHEREFORE, the conviction of accused-appellant GUILLERMO

FLORENDO alias IMONG of parricide under Art. 246 of The Revised
Penal Code, as amended by Sec. 5, of RA 7659, is AFFIRMED with
the MODIFICATION that he should suffer the penalty of reclusion
perpetua, instead of death. He is further ordered to pay the heirs of
his wife, the deceased Erlinda Ragudo Florendo, the amount of
P50,000.00 as civil indemnity for her death, and to pay the costs.

Appellant
was
properly
convicted
of
the
crime
of
parricide.24 Parricide not being a capital crime per se, as it is not
punishable by the mandatory death penalty but by the flexible
penalty of reclusion perpetua to death which are two (2) indivisible
penalties, the application of the lesser or the greater penalty
depends on the presence of mitigating and aggravating
circumstances. There being no aggravating or mitigating
circumstance appreciated for appellant, the lesser penalty of
reclusion perpetua is imposed.25 Nonetheless, clinical findings at
the time of evaluation of the psychological and psychiatric
condition of appellant show that despite maintenance of antipsychotic medication he remains to be symptomatic. It is
imperative that there should be continuous maintenance of his
anti-psychotic medications and regular psychiatric follow-up to
achieve and sustain remission of psychotic symptoms.
As the trial court failed to award indemnity in favor of the heirs of
the victim, the amount of P50,000.00 should be adjudged as civil

G.R. No. L-6897

February 15, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
POLICARPIO TAYONGTONG, defendant-appellant.
MORELAND, J.:
The defendant in this case was convicted of the crime of homicide
by negligence (homicidio por imprudencia temeraria). He appealed,
basing his whole case here upon the proposition that the evidence
does not warrant the conviction.
It appears that on the 19th day of January, 1911, one Severino
Resume was engaged in painting telephones poles located along
the highway between Jaro and Iloilo. On that day he was killed by
being run over by an automobile driven by the defendant. The
highway at the point where Severino met his death was straight, of
considerable width, and in good condition. The telephone pole upon
which Severino was at work at the time of the accident was outside
of the beaten portion of the highway and located about 2 feet into
the grass at the side. Between it and the edge of the road was a
pathway used by people traveling on foot. The machine which
caused the death of the deceased is a large passengers, and
having upon each side and extending about 2 feet out beyond the
wheels a rack or other contrivance for the carrying of parcels,
baggage, and freight. It is used solely for the purpose of carrying
passengers back and forth between Iloilo and Jaro.
The accident happened at about 10 o' clock in the morning. The
automobile was then engaged in making its third trip from Iloilo at
Jaro, and was loaded to its fullest capacity. There were several
people who claim to have witnessed the accident. One of them, the
principal witness for the prosecution, and its only witness who saw
the occurrence, named Pablo Tayson, is alleged to have been
standing within a few feet of the deceased, talking with him, at the
time he was run down. Another person, who was near by at the
time of the accident, was Basilio Severaldo, who was engaged in
the same work as the deceased but, just prior to the passage of the
automobile, had gone away from the locality where the accident
occurred and saw nothing of what happened. Two other persons,
who have been produced as witnesses for the defendant, allege
that they were present and saw the whole occurrence.
Pablo Tayson, who, as we have said, is the only witness for the
prosecution testifying directly to the facts and substantially the
only witness upon whom the prosecution relies for a conviction,

testified that at the time of the accident he and the deceased were
located on the left-hand side of the highway going from Iloilo at
Jaro; that he was standing a few feet from the deceased who was
also on the same side of the highway; that the deceased was
standing up painting the side of the telephone pole toward Jaro;
that the telephone pole was, therefore, between the deceased and
Iloilo, the direction from which the automobile was coming; that the
road on that day was very dusty and the automobile, as he saw it
coming from Iloilo toward him and the deceased, was raising a
cloud of dust which he was drifting to the side of the road upon
which he and the deceased were located. This witness further
asserted that he saw the automobile when it was within about
1,200 feet of the place where he stood; that it was coming at a rate
of speed variously termed by him "very fast" and "at full speed;"
that, on observing the machine as it approached, he saw that the
driver, the accused, was turning the steering wheel first in one
direction and then the other, as if uncertain what course he was
going to pursue; that the machine, as a consequence, was darting
first to one side of the road and then to the other, thus zigzagging
back and forth across the traveled portion of the highway; that just
before reaching the place where deceased was painting the
telephone pole it crossed to the side of the road opposite to him
and then suddenly started back across the road opposite to him
and then suddenly started back across the road, striking the
deceased as he stood painting; that by the impact the deceased
was thrown upon the ground somewhat toward the front of the
machine, which was going so fast that, although the accused was
not within the reach of its wheels, nevertheless, the "suction," as
the witness called it, created by the swift passage of the machine
drew the deceased under its wheels where he was run over and
crushed.
From the testimony of the witness it does not appear that the
deceased moved or stirred in any way until he was hit by the
automobile.
The accused testified, and produced several witnesses to support
his testimony, that at the time of the accident he was driving the
machine, which was loaded to its fullest capacity with passengers
and baggage, at about 10 to 15 miles an hour; that he was driving
in or near the center of the road and pas to either side; that the
machine was under full control and was going steadily and
smoothly without deviating to the right or to the left; that on
approaching the place where the witness Pablo Tayson stood he
saw him turn his back toward the road and place his cap over his

face in such a way as to cover his nose, mouth and eyes, evidently
to protect them from the cloud of dust which was rolling from
behind the machine over toward the side of the road on which he
was; that the deceased, as the machine approached, probably
seeing the cloud of dust which it was raising and which would
inevitably drift in his direction, and observing his companion, Pablo
Tayson, under the necessity of protecting himself from the dust in
the manner described, just before the machine reached a point
opposite him, started to cross the road to the other side, evidently
to escape the dust; that he misjudged the distance and started too
late; that in attempting to cross he placed himself squarely in front
of the machine; that his movement was so sudden and unexpected
and, when he reached the road, he was so close to the machine
that it was impossible to stop it in time to avert the catastrophe;
that he did everything that was possible to be done to avoid the
accident; that he put on both brakes as hard as possible and turned
the machine as much as could be done under the circumstances;
that in proof thereof he shows that only the front wheel of the
machine passed over the body of the deceased, it having been
turned by him sufficiently so that the mind wheel missed him, and
that the machine was stopped a very few feet beyond the point
where the accident occurred. The accused testified, and his
evidence in this regard is uncontradicted, that he was thoroughly
qualified as a driver, having served his apprenticeship on this very
road and this very machine before being employed.
The accused denies absolutely that portion of the story told by
Pablo Tayson in which he alleges that the accused was driving at a
high rate of speed; that he was zigzagging from one side of the
road to the other; and that he struck the deceased while he stood
painting the telephone pole.
We are satisfied that the evidence is not sufficient to convict. On
the contrary, we believe that, under all of the facts and
circumstances of the case, the fair preponderance of the evidence
indicates that the deceased met his death in substantially the
manner described by the accused. In the first place, the testimony
of Pablo Tayson is affected by an attack made upon his credibility
during the progress of the trial. It was shown that, on the
preliminary investigation had by the justice of the peace, this
witness testified, precisely as the accused asserted in his evidence,
that just as the machine was arriving at a point in the highway
opposite him, he, desiring to avoid the unpleasantness of the dust,
turned his back toward the road and covered his face with his cap,
thereby excluding the dust from his mouth, eyes, and nostrils. That

he so testified on the preliminary investigation, according to the

record thereof, is admitted. In his testimony on the trial of this case
he stated, at first, that he turned his right side to the road and
placed his hand over the side of his face. leaving his eyes
uncovered, so that he was able to see and did see the deceased at
the time he was run down. Upon cross-examination he changed this
testimony to the extent of saying that he covered the right side of
his face with his cap instead of his hand, maintaining, however,
that he did not cover his eyes and that he was able to see the
deceased and all that transpired. When confronted with the
evidence which he gave on the preliminary examination, he sought
to explain the difference between his two declarations by stating
that the testimony before the justice of the peace, which was
reduced to writing and signed by him, was in a different language
from that which he was able to speak and to speak and that it was
not translated so that he knew what he was signing.
In the second place, the testimony of this witness is unreasonable.
It is improbable that a machine as large as the one in question,
going at the rate of speed described by Pablo Tayson, could zigzag
from one side of the highway to the other in the manner described
by the witness. It is still more improbable that this machine could
have dodged from the right-hand side of the road to the left and, in
some unknown manner, picked the deceased out from behind the
telephone pole, dragged him into the highway and there run over
him. It is not clear how an automobile can run over a man when it
is admitted that he is on the opposite side of a telephone post from
the machine which ruins him down, with only a portion of his body
extending beyond it. Even if the machine had started toward him in
the manner described he would undoubtedly have seen it quickly
enough to have passed around the other side of the post and save
himself from being touched. This is especially evident when we
observe that it is admitted that the deceased stood facing the
automobile all the time and could see it plainly and its every
movement. It is difficult to believe that a machine of the size of the
one in question, driven at the high rate of speed alleged by the
witness, could have turned suddenly, darted toward the ditch, and
struck the deceased while located partly on the opposite side of a
post from the machine without having collided with the post or
gone into the ditch, it being remembered that the post was not
more than 6 feet from the ditch.
From the transcription given of the machine it appears, as we have
already seen, that there were certain portions of the body of the
machine extending over and beyond the wheels, which were used

as receptacles for the baggage and bundles of passengers. This

projection, under the theory of the prosecution, would necessarily
have been the portion of the machine to hit the deceased for the
reason that no other part of the machine could have come in
contact with him without the projection referred to striking the
telephone pole. If this projection is that which struck the deceased
first, then he would have been thrown into the ditch away from the
machine and not into the highway under the machine. This is what
would necessarily have happened when we remember that at the
time the deceased was struck the machine was going at full speed
toward the ditch. It was apparently to avoid the contradiction of his
previous testimony inherent in this necessary result that the
witness testified that the force which prevented the deceased from
going into the ditch and drew him under the machine was the
"suction" created by its rapid passage along the highway.
It is undisputed evidence of the case that that portion of the
machine which struck the deceased first was the mudguard over
the left wheel. This fact alone shows the impossibility of the
machine having hit the deceased while standing at the post, as it is
admitted that no part of the automobile collided with the post. If
the deceased had been at the post, as described by Tayson, the
guard could not possibly have struck him without the extended
portions described having struck the post itself.
On the otherhand, the story told by the accused and supported by
some of the passengers who saw the accident is entirely
reasonable, accords with common sense and ordinary experience.
It was clearly told, in a manner frank and straightforward, was free
from contradictions and needs no explanation or excuses.
We have read with detention the opinion upon which the judgment
of conviction is based. In spite of careful study, we are unable to
discover anything therein that alters our views in relation to the
merits. As between the two theories, the one of the prosecution
and the other of the defense, we cannot have, under the evidence
and record, any hesitation in choosing. The evidence presented by
the prosecution itself, and it is upon that evidence alone that the
conviction must stand, every other fact in the record being
conspicuously in exculpation of the accused, shows the deceased
standing upon the east side of a telephone pole facing an
automobile coming toward him from the west, about half of his
body extending beyond the pole toward the highway on his left. On
his right was the highway drainage ditch. The pole was outside of
the travelled portion of the highway so far that a footpath lay

between it and said traveled portion. The automobile was coming

toward him at a high rate of speed, to judge from the evidence of
this witness, at least 40 miles an hour, possibly more. The machine
was not proceeding in a straight line but it was going from one side
of the road to the other. Just before arriving opposite the deceased
it darted to the right-hand side of the road and then, turning, it
started toward the left-hand side directly at the deceased. All of
these things the deceased saw, yet he did not move or attempt to
save himself in any way. On the contrary, he stood still and
permitted the machine to strike him upon his left side. Having
collided with him, the machines turned back toward the center of
the highway, carrying the deceased with it, depositing him within
the traveled portion of the highway, where it ran over him. On the
other hand, the evidence of the defendant shows that he was
driving the machine at a moderate rate of speed within the usually
traveled portion of the highway, guiding it in a substantially
straight line and handling it in the usual and ordinary manner. The
machine, one of extraordinary size and capable of carrying 35
passengers with their baggage and effects, was incapable of
running at the rate of speed described by the prosecution. Arriving
at a point in the highway just in front of the deceased, the latter, to
avoid the cloud of dust which was drifting to his side of the road,
started to cross the road to the other side. He miscalculated the
time and distance and as a result was struck by the automobile and
run over. His action in starting across the road was so sudden and
unexpected and, when he reached the road, he was so close to the
automobile, that it was impossible to stop the machine in time to
save him. The body was picked up within the traveled portion of the
highway.
Which of these two stories is the most reasonable? We have no
hesitation in answering. The story of the prosecution presents so
many things that are unreasonable and incredible and for which
there exists in the record no explanation whatever, and concerning
which no reasonable explanation can give, that it must necessarily
be rejected. Even if, going at such a high rate of speed, the
accused could have driven the automobile from one side of the
road to the other as alleged, what could possibly be his reason for
so doing? It was market day at Jaro; this was his third trip; the
machine was loaded to its utmost capacity, both with passengers
and with baggage; he was doubtedly running according to a
schedule and would have no time to waste in going from one side
of the road to the other; no reason is suggested and one can be
supplied why a driver should handle his machine in the manner
described by the only witness for the prosecution who saw the
whole occurrence. Instead of Kepping to the travelled portion of the

highway, which was admittedly in fine condition, why should the

accused go outside of it, across a foothpath used by pedestrians,
and skin alongside of the telephone poles located on that side?
What object could he have had in thus exposing himself, his
passengers, and his machine to the risks and dangers of plunging
into the drainage ditch or driving against the telephone poles or
meeting the other disasters and dangers which might be
encountered outside of the usually traveled portion of the highway?
No explanation of such extraordinary conduct is given in the record
and none can be conceived. He was not engaged in taking a party
of hilarious companions on a "joy" ride, nor in giving an exhibition
of his skill in handling an automobile of that size and class. It does
not appear that he was drunk or foolish. He was engaged in a
business enterprise, employed by a businessman purposes. What
could possibly have been his purpose when, or arriving at a point in
front of the deceased, he turned his automobile across the road and
started squarely toward the telephone pole and the deceased? That
he saw the deceased and that the deceased saw him is admitted.
What spirit or purpose could have animated him in driving his
automobile outside of the highway directly toward not only a
telephone post but the drainage ditch itself in order to run down an
unoffending person? What motive can be assigned by the
prosecution when it asserts that the accused did this
unaccountable thing? What purpose does the prosecution allege
the accused sought to subserve when, by this conduct, he placed
the safety of his passengers and of his machine, as well as of
himself, at stake in thus driving directly toward a place of great
danger? Above all, why did the deceased stand still, instead of
stepping around behind the post, and permit himself to be crushed
to death by the machine which he clearly saw bearing down upon
him? These unreasonable and accountable things must be
satisfactorily explained by the prosecution when it is confronted by
the statement of the accused, supported by a number of
disinterested witnesses, that none of those things ever occurred.
We have already pointed out that, giving the story as told by the
prosecution credence, it would have been little short of an
impossibility for the body of the deceased to have found itself in
the travelled portion of the highway after the accident. He would
inevitably have been driven further away from the highway and
toward the ditch by the blow from the machine going in the
direction in which it was alleged by the prosecution to have been
going.
Turning to the story of the event as given by the defendant and his
witnesses, we meet nothing that requires explanation. There can,

therefore, be no hesitation on our part in accepting the truth of the

story told by the defendant.
Although we have held in a recent case (U. S. vs. Reyes, 10 Off.
Gaz., 1045), a criminal action for homicide byimprudencia
temeraria, that contributory negligence on the part of the person
killed is no defense, provided the driver of automobile himself was
negligent and that negligence was the proximate cause of the
death, nevertheless, that doctrine does not in any way inveigh
against the proposition which we here assert that, where death is
due to the negligence of the decedent himself and not to the
negligence of the driver of the automobile, the latter cannot be
held for homicide. In this case the death of the deceased was due
entirely to his own negligence. There is not sufficient reliable proof
in the record to establish negligence on the part of the accused.
There being no negligence, he is not responsible, no matter what
the result of the accident may have been.
The judgment of conviction is reversed and the accused acquitted.

THE UNITED STATES, complainant-appelle,

vs.
APOLONIO CABALLEROS, ET AL., defendants-appellants.
MAPA, J.:
The defendants have been sentenced by the Court of First Instance
of Cebu to the penalty of seven years ofpresidio mayor as
accessories after the fact in the crime of assassination or murder
perpetrated on the persons of the American school-teachers Louis
A. Thomas, Clyde O. France, John E. Wells, and Ernest Eger,
because, without having taken part in the said crime as principals
or as accomplices, they took part in the burial of the corpses of the
victims in order to conceal the crime.
The evidence does not justify, in our opinion, this sentence. As
regards Roberto Baculi, although he confessed to having assisted in
the burial of the corpses, it appears that he did so because he was
compelled to do so by the murderers of the four teachers. And not
only does the defendant affirm this, but he is corroborated by the
only eyewitness to the crime, Teodoro Sabate, who, by the way, is a
witness for the prosecution. This witness says he was present when
the Americans were killed; that Roberto Baculi was not a member
of the group who killed the Americans, but the he was in a banana
plantation on his property gathering some bananas; that when he
heard the shots he began to run; that he was, however, seen by
Damaso and Isidoro, the leaders of the band; that the latter called
to him and striking him with the butts of their guns they forced him
to bury the corpses.
The Penal Code exempts from liability any person who performs the
act by reason of irresistible force (par. 9, art. 8). Baculi acted,
doubtless, under such circumstances when he executed the acts
which are charged against him.

G.R. No. 1352

March 29, 1905

As regards the other defendant, Apolonio Caballeros, there is no

proof that he took any part in any way in the execution of the crime
with which he has been charged; there is conclusive proof to the
contrary, since Baculi, as well as one of the witnesses for the
prosecution, Teodoro Sabate, expressly declare that he, Caballeros,
did not take any part in the burial of the aforesaid corpses, nor was
he even in the place of the occurrence when the burial took place.
The confession of his supposed liability and guilt, made before an
official of the division of information of the Constabulary, Enrique
Calderon, as the latter states when testifying as a witness, can not

be considered as legal proof, because the same witness says that

Roberto Baculi was the only one of the defendants who made a
confession to him voluntarily. It appears besides, from the
statements of another witness for the prosecution, Meliton
Covarrubias, that the confession of Apolonio Caballeros was made
through the promise made to him and to the other defendants that
nothing would be done to them. Confessions which do not appear
to have been made freely and voluntarily, without force,
intimidation, or promise of pardon, can not be accepted as proof on
a trial. (Sec. 4, Act No. 619 of the Philippine Commission).
The fact of the defendants not reporting to the authorities the
perpetration of the crime, which seems to be one of the motives for
the conviction and which the court below takes into consideration
in his judgment, is not punished by the Penal Code and therefore
that can not render the defendants criminally liable according to
law.
By virtue, then, of the above considerations, and with a reversal of
the judgment appealed from, we acquit the defendants, appellants,
with the costs de oficio in both instances. So ordered.

G.R. No. 1481

February 17, 1904

THE UNITED STATES, complainant-appellee,

vs.
LIBERATO EXALTACION, ET AL., defendants-appellants.
TORRES, J.:
March 26, 1903, the provincial fiscal of Bulacan presented to the
court of that province an information charging Liberato Exaltacion
and Buenaventura Tanchinco with the crime of rebellion, in that
they, subsequently to the 4th day of November, 1901, willfully and
illegally bound themselves to take part in a rebellion against the
Government of the United States in these Islands, swearing
allegiance to the Katipunan Society, the purpose of which was to
overthrow the said Government by force of arms, this against the
statute in the case made and provided.
In the course of the trial Don Pablo Tecson, the provincial governor
of Bulacan, testified under oath that the two defendants were
arrested in the month of March, 1903, the police some days before
having captured a number of documents in the encampment of one
Contreras, as so-called general of bandits, situated at a place called
Langca, of the town of Meycauayan, among which documents
appeared the papers now on pages 2 and 3 of the record, signed by
the said Exaltacion and Tanchinco, who recognized the said
documents when they were exhibited to them; that the said
defendants stated to the witness that they had signed the said
documents under compulsion; that the purpose of the Katipunan
Society was to obtain the independence of the Philippines; that this
statement was made in the house of the parish priest of
Meycauayan in the presence of Exequiel Casas and Fernando Nieto.
The latter, upon their examination as witnesses, testified to the
same facts, stating that the defendants told Governor Tecson that
they had signed the said documents under fear of death at the

hands of the thieves by whom they had been captured. The witness
Casas, the municipal president of Meycauayan, testified that he
held office as such in place of the former president, Don Tomas
Testa, who was kidnapped in the month of October, 1902.
The said documents, the first of which was dated July 4 and the
second July 17, 1902, were written in Tagalog, and contain an oath
taken in the name of God, and a covenant on the part of the
subscribers to carry out the superior orders of the Katipunan, and
never disobey them until their death in the defense of the mother
country. The two accused, under oath, testified to having signed
the said documents and alleged that they did so under compulsion
and force while they were held as captives by the thieves; that the
defendant Tanchinco was captured in the fields one day when he
was going to work on his farm by three armed men, unknown to
him, who asked him if he was an agent or friend of President Testa,
and upon his replying in the negative they compelled him in view of
his denial to sign a document, now on page 3 of the record.
The defendant Tanchinco cited Lazaro Yusay to testify to the fact
that he was captured at a place called Kaibiga in the township of
Novaliches, and that on the day following his release, having been
unable to pay the $300 which was demanded of him, he reported to
the president, Tomas Testa. The defendant Liberato Exaltacion
under oath testified that he was captured near Meycauayan by five
persons, unknown, dressed as policemen and armed with guns or
revolvers; that these men bound him and took him into the forest
and there compelled him by threats of death to sign the documents
now on page 2 of the record; that thereupon they allowed him to go
upon promise to return. This defendant testified that Antero Villano
and Tomas Rivera saw him while on the road in the hands of the
thieves. Both the accused testified that as soon as they were
released they presented themselves to the president, Don Tomas
Testa, in the presence of witnesses, and subsequently went to
Bonifacio Morales, a lieutenant of volunteers, and reported to him
the fact that they had been captured.
The witnesses Morales, Lazaro Yusay, Antero Villano, Dalmacio
Ferrer, and Hipolito de Leon - of whom the last two were present
when Tanchinco appeared before Senor Testa, the president of
Meycauayan, and reported to him what had happened to him - all

testified to the same fact and corroborated the statements of the

accused with respect to their capture and their subsequent report
to President Testa and to the witness Morales.
The evidence for the prosecution, and especially the two
documents above referred to, signed by the accused, is not
sufficient to prove the guilt of the latter or to justify the imposition
upon them of the penalty inflicted by the judgment of the court
below.
The facts, established by the evidence, that the defendants were
kidnapped by brigands who belonged to the Contreras band, and
that they signed the said documents under compulsion and while in
captivity, relieve them from all criminal liability from the crime of
rebellion of which they are charged. The conduct of the defendants
in presenting themselves first to the local president of Meycauayan
and subsequently to Lieut. Bonifacio Morales, of the Bulacan
Government Volunteers, as soon as they were released by the
bandits is corroborative of their testimony, and is the best
demonstration of their innocence. This conclusion is not overcome
by the trifling discrepancy between the testimony of the witness
Yusay and that of the defendant Tanchinco nor the fact the
Exaltacion was unable to determine the date when he was captured
or that on which he appeared before President Testa.
The guilt of the defendants of the crime defined and punished by
Act No. 292 not having been established at the trial beyond a
reasonable doubt, we are of the opinion that the judgment below
must be reversed and the defendants acquitted with the costs de
oficio. The judge below will be informed of this decision and a copy
of the judgment entered herein will be furnished him for his
information and guidance. So ordered.

G.R. No. 132547. September 20, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1
ERNESTO ULEP,accused-appellant.
DECISION
BELLOSILLO, J.:
In the aftermath of an incident where a certain Buenaventura
Wapili[1] went berserk at Mundog Subdivision, Poblacion Kidapawan,
Cotabato, in the early morning of 22 December 1995, Police Officer
Ernesto Ulep was found guilty of murder and sentenced to death by
the trial court for killing Wapili. Ulep was also ordered to indemnify
the heirs of the victim in the amount of P50,000.00 and to pay the
costs.[2]
The evidence shows that at around two o' clock in the morning
of 22 December 1995 Buenaventura Wapili was having a high fever
and was heard talking insensibly to himself in his room. His brotherin-law, Dario Leydan, convinced him to come out of his room and
talk to him, but Wapili told Leydan that he could not really
understand himself. After a while, Wapili went back to his room and
turned off the lights. Moments later, the lights went on again and
Leydan heard a disturbance inside the room, as if Wapili was
smashing the furniture.[3] Unable to pacify Wapili, Leydan called

Pastor Bonid of the Alliance Church of Kidapawan to help him "pray

over" Wapili, but they could not enter the latter's room as he
became wild and violent.Suddenly, Wapili bolted out of his room
naked and chased Leydan. Thereafter, Leydan with the aid of two
(2) of his neighbors attempted to tie Wapili with a rope but was
unsuccessful as Wapili was much bigger in built and stronger than
anyone of them.[4] Wapili, who appeared to have completely gone
crazy, kept on running without any particular direction.
Thus, Leydan went to the house of policewoman Norma Plando,
a neighbor, and asked for assistance.As Wapili passed by the house
of Plando, he banged Plando's vehicle parked outside. Using a
hand-held radio, Plando then contacted SPO1 Ernesto Ulep, SPO1
Edilberto Espadera and SPO2 Crispin Pillo, all members of the PNP
assigned to secure the premises of the nearby Roman Catholic
Church of Kidapawan.[5]
At around four o'clock in the morning of the same day, SPO1
Ulep together with SPO1 Espadera and SPO2 Pillo arrived at the
scene on board an Anfra police service jeep. The three (3) police
officers, all armed with M-16 rifles, alighted from the jeep when
they saw the naked Wapili approaching them. The kind of weapon
Wapili was armed with is disputed. The police claimed that he was
armed with a bolo and a rattan stool, while Wapili's relatives and
neighbors said he had no bolo, but only a rattan stool.
SPO1 Ulep fired a warning shot in the air and told Wapili to put
down his weapons or they would shoot him. But Wapili retorted
"pusila!" ("fire!") and continued advancing towards the police
officers. When Wapili was only about two (2) to three (3) meters
away from them, SPO1 Ulep shot the victim with his M-16 rifle,
hitting him in various parts of his body. As the victim slumped to
the ground, SPO1 Ulep came closer and pumped another bullet into
his head and literally blew his brains out.[6]
The post mortem examination of the body conducted by Dr.
Roberto A. Omandac, Municipal Health Officer of Kidapawan,
showed that Wapili sustained five (5) gunshot wounds: one (1) on
the right portion of the head, one (1) on the right cheek, one (1) on
the abdomen and two (2) on the right thigh: SHEENT - gunshot
wound on the right parietal area with fractures of the right
temporoparietal bones with evisceration of brain tissues, right
zygomatic bone and right mandible, lateral aspect; CHEST AND
BACK - with powder burns on the right posterior chest; ABDOMEN gunshot wound on the right upper quadrant measuring 0.5 cm. in
diameter (point of entry) with multiple powder burns around the
wound and on the right lumbar area (point of exit). Gunshot wound

on the suprapubic area (point of entry); EXTREMETIES - with

gunshot wounds on the right thigh, upper third, anterior aspect
measuring 0.5 cm. in diameter with powder burns (point of entry)
and right buttocks measuring 0.5 cm. in diameter (point of exit);
gunshot wound on the right thigh, upper third, posterolateral
aspect; CAUSE OF DEATH - multiple gunshot wounds. [7]
Dr. Omandac concluded that the shots were fired at close
range, perhaps within twenty-four (24) inches, judging from the
powder burns found around some of the wounds in the body of the
victim,[8] and that the wound in the head, which caused the victim's
instantaneous death, was inflicted while "the victim was in a lying
position."[9]
The Office of the Ombudsman for the Military filed an
Information for murder against SPO1 Ulep. The accused pleaded
not guilty to the charge on arraignment, and insisted during the
trial that he acted in self-defense. However, on 28 October 1997,
the trial court rendered judgment convicting the accused of murder
and sentencing him to death The means employed by the accused to prevent or repel the
alleged aggression is not reasonable because the victim,
Buenaventura Wapili, was already on the ground, therefore, there
was no necessity for the accused to pump another shot on the back
portion of the victim's head. Clearly the gravity of the wounds
sustained by the victim belies the pretension of the accused that he
acted in self-defense. It indicates his determined effort to kill the
victim. It is established that accused (sic) was already in the ground
that would no longer imperil the accused's life. The most logical
option open to the accused was to inflict on the victim such injury
that would prevent the victim from further harming him. The court
is not persuaded by the accused's version because if it is true that
the victim attacked him and his life was endangered - yet his two
(2) companions SPO1 Espadera and SPO2 Pillo did not do anything
to help him but just witness the incident - which is unbelievable and
unnatural behavior of police officers x x x x
WHEREFORE, prescinding from the foregoing, judgment is hereby
rendered finding the accused Ernesto Ulep guilty beyond
reasonable doubt of the crime of Murder, the accused is hereby
sentenced to suffer the extreme penalty of Death, to indemnify the
heirs of Buenaventura Wapili the amount of P50,000.00 without
subsidiary imprisonment in case of insolvency and to pay the costs.

Death penalty having been imposed by the trial court, the case
is now before us on automatic review.Accused-appellant prays for
his acquittal mainly on the basis of his claim that the killing of the
victim was in the course of the performance of his official duty as a
police officer, and in self-defense.
Preliminarily, having admitted the killing of Wapili, accusedappellant assumed the burden of proving legal justification
therefor. He must establish clearly and convincingly how he acted
in fulfillment of his official duty and/or in complete self-defense, as
claimed by him; otherwise, he must suffer all the consequences of
his malefaction. He has to rely on the quantitative and qualitative
strength of his own evidence, not on the weakness of the
prosecution; for even if it were weak it could not be disbelieved
after he had admitted the killing.[10]
Before the justifying circumstance of fulfillment of a duty under
Art. 11, par. 5, of The Revised Penal Code may be successfully
invoked, the accused must prove the presence of two (2) requisites,
namely, that he acted in the performance of a duty or in the lawful
exercise of a right or an office, and that the injury caused or the
offense committed be the necessary consequence of the due
performance of duty or the lawful exercise of such right or
office. The second requisite is lacking in the instant case.

stage of the incident - when he fatally shot the victim in the head,
perhaps in his desire to take no chances, even after the latter
slumped to the ground due to multiple gunshot wounds sustained
while charging at the police officers. Sound discretion and restraint
dictated that accused-appellant, a veteran policeman,[11] should
have ceased firing at the victim the moment he saw the latter fall
to the ground. The victim at that point no longer posed a threat and
was already incapable of mounting an aggression against the police
officers. Shooting him in the head was obviously unnecessary. As
succinctly observed by the trial court Once he saw the victim he fired a warning shot then shot the victim
hitting him on the different parts of the body causing him to fall to
the ground and in that position the accused shot the victim again
hitting the back portion of the victim's head causing the brain to
scatter on the ground x x x x the victim, Buenaventura Wapili, was
already on the ground. Therefore, there was no necessity for the
accused to pump another shot on the back portion of the victim's
head.
It cannot therefore be said that the fatal wound in the head of
the victim was a necessary consequence of accused-appellant's
due performance of a duty or the lawful exercise of a right or office.

Accused-appellant and the other police officers involved

originally set out to perform a legal duty: to render police
assistance, and restore peace and order at Mundog Subdivision
where the victim was then running amuck. There were two (2)
stages of the incident at Mundog Subdivision. During the first
stage, the victim threatened the safety of the police officers by
menacingly advancing towards them, notwithstanding accusedappellant's previous warning shot and verbal admonition to the
victim to lay down his weapon or he would be shot. As a police
officer, it is to be expected that accused-appellant would stand his
ground. Up to that point, his decision to respond with a barrage of
gunfire to halt the victim's further advance was justified under the
circumstances. After all, a police officer is not required to afford the
victim the opportunity to fight back. Neither is he expected - when
hard pressed and in the heat of such an encounter at close quarters
- to pause for a long moment and reflect coolly at his peril, or to
wait after each blow to determine the effects thereof.

Likewise, the evidence at hand does not favor his claim of selfdefense. The elements in order for self-defense to be appreciated
are: (a) unlawful aggression on the part of the person injured or
killed by the accused; (b) reasonable necessity of the means
employed to prevent or repel it; and, (c) lack of sufficient
provocation on the part of the person defending himself. [12]

However, while accused-appellant is to be commended for

promptly responding to the call of duty when he stopped the victim
from his potentially violent conduct and aggressive behavior, he
cannot be exonerated from overdoing his duty during the second

This Court disagrees with the conclusion of the court a quo that
the killing of Wapili by accused-appellant was attended by
treachery, thus qualifying the offense to murder. We discern
nothing from the evidence that the assault was so sudden and
unexpected and that accused-appellant deliberately adopted a

The presence of unlawful aggression is a condition sine qua

non. There can be no self-defense, complete or incomplete, unless
the victim has committed an unlawful aggression against the
person defending himself.[13] In the present case, the records show
that the victim was lying in a prone position on the ground bleeding from the bullet wounds he sustained, and possibly
unconscious - when accused-appellant shot him in the head. The
aggression that was initially begun by the victim already ceased
when accused-appellant attacked him. From that moment, there
was no longer any danger to his life.

mode of attack intended to insure the killing of Wapili, without the

victim having the opportunity to defend himself.

proper, in view of the number and nature of the conditions of

exemption present or lacking."

On the contrary, the victim could not have been taken by

surprise as he was given more than sufficient warning by accusedappellant before he was shot, i.e., accused-appellant fired a
warning shot in the air, and specifically ordered him to lower his
weapons or he would be shot. The killing of Wapili was not sought
on purpose. Accused-appellant went to the scene in pursuance of
his official duty as a police officer after having been summoned for
assistance. The situation that the victim, at the time accusedappellant shot him in the head, was prostrate on the ground is of no
moment when considering the presence of treachery. The decision
to kill was made in an instant and the victim's helpless position was
merely incidental to his having been previously shot by accusedappellant in the performance of his official duty.

Incomplete justification is a special or privileged mitigating

circumstance, which, not only cannot be offset by aggravating
circumstances but also reduces the penalty by one or two degrees
than that prescribed by law.[15] Undoubtedly, the instant case would
have fallen under Art. 11, par. 5 of The Revised Penal Code had the
two (2) conditions therefor concurred which, to reiterate: first, that
the accused acted in the performance of a duty or the lawful
exercise of a right or office; and second, that the injury or offense
committed be the necessary consequence of the due performance
of such duty or the lawful exercise of such right or office. But here,
only the first condition was fulfilled. Hence, Art. 69 is applicable,
although its "that the majority of such conditions be present," is
immaterial since there are only two (2) conditions that may be
taken into account under Art. 11, par. 5. Article 69 is obviously in
favor of the accused as it provides for a penalty lower than that
prescribed by law when the crime committed is not wholly
justifiable. The intention of the legislature, obviously, is to mitigate
the penalty by reason of the diminution of either freedom of action,
intelligence, or intent, or of the lesser perversity of the offender. [16]

There is treachery when the offender commits any of the

crimes against persons, employing means, methods, or forms in
the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which
the offended party might make.[14] Considering the rule that
treachery cannot be inferred but must be proved as fully and
convincingly as the crime itself, any doubt as to its existence must
be resolved in favor of accused-appellant. Accordingly, for failure of
the prosecution to prove treachery to qualify the killing to murder,
accused-appellant may only be convicted of homicide.
Indeed, to hold him criminally liable for murder and sentence
him to death under the circumstances would certainly have the
effect of demoralizing other police officers who may be called upon
to discharge official functions under similar or identical
conditions. We would then have a dispirited police force who may
be half-hearted, if not totally unwilling, to perform their assigned
duties for fear that they would suffer the same fate as that of
accused-appellant.
This brings us to the imposition of the proper penalty.
We find in favor of accused-appellant the incomplete justifying
circumstance of fulfillment of a duty or lawful exercise of a
right. Under Art. 69 of The Revised Penal Code, "a penalty lower by
one or two degrees than that prescribed by law shall be imposed if
the deed is not wholly excusable by reason of the lack of some of
the conditions required to justify the same or to exempt from
criminal liability in the several cases mentioned in Arts. 11 and 12,
provided that the majority of such conditions be present. The courts
shall impose the penalty in the period which may be deemed

We likewise credit in favor of accused-appellant the mitigating

circumstance of voluntary surrender. The police blotter of
Kidapawan Municipal Police Station shows that immediately after
killing Wapili, accused-appellant reported to the police
headquarters and voluntarily surrendered himself.[17]
Article 249 of The Revised Penal Code prescribes for the crime
of homicide the penalty of reclusion temporal, the range of which is
twelve (12) years and one (1) day to twenty (20) years. There being
an incomplete justifying circumstance of fulfillment of a duty, the
penalty should be one (1) degree lower, i.e., from reclusion
temporal to prision mayor, pursuant to Art. 69, in relation to Art.
61, par. 2, and Art. 71, of the Code, to be imposed in its minimum
period since accused-appellant voluntarily surrendered to the
authorities and there was no aggravating circumstance to offset
this mitigating circumstance. Applying the Indeterminate Sentence
Law, the maximum of the penalty shall be taken from the minimum
period of prision mayor, the range of which is six (6) years and one
(1) day to eight (8) years, while the minimum shall be taken from
the penalty next lower in degree which is prision correccional, in
any of its periods, the range of which is six (6) months and one (1)
day to six (6) years.

The right to kill an offender is not absolute, and may be used

only as a last resort, and under circumstances indicating that the
offender cannot otherwise be taken without bloodshed. The law
does not clothe police officers with authority to arbitrarily judge the
necessity to kill.[18] It may be true that police officers sometimes
find themselves in a dilemma when pressured by a situation where
an immediate and decisive, but legal, action is needed. However, it
must be stressed that the judgment and discretion of police officers
in the performance of their duties must be exercised neither
capriciously nor oppressively, but within reasonable limits. In the
absence of a clear and legal provision to the contrary, they must
act in conformity with the dictates of a sound discretion, and within
the spirit and purpose of the law.[19] We cannot countenance triggerhappy law enforcement officers who indiscriminately employ force
and violence upon the persons they are apprehending. They must
always bear in mind that although they are dealing with criminal
elements against whom society must be protected, these criminals
are also human beings with human rights.
WHEREFORE, the appealed Judgment is MODIFIED. Accusedappellant SPO1 ERNESTO ULEP is found guilty of HOMICIDE, instead
of Murder, and is sentenced to an indeterminate prison term of four
(4) years, two (2) months and ten (10) days of prision
correccional medium as minimum, to six (6) years, four (4) months
and twenty (20) days of prision mayor minimum as maximum. He is
further ordered to indemnify the heirs of Buenaventura Wapili in the
amount of P50,000.00, and to pay the costs.
SO ORDERED.

Upon being arraigned on March 23, 1995, petitioner pleaded "Not

Guilty."
However, on July 11, 1995, petitioner manifested, through counsel,
his desire to change his plea to that of "guilty" and to prove the
privileged
mitigating
circumstance
of
incomplete
selfdefense.1awphi1.nt
Thus, on July 25, 1995, petitioner was re-arraigned and he entered
a plea of "guilty."
G.R. No. 139759

January 14, 2005

DANILO "DANNY" MENDOZA, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, respondent.
DECISION

Evidence for the prosecution show that on November 23, 1994, one
Willy Baluyot celebrated his birthday at his residence in Barangay
19, San Nicolas, Ilocos Norte. Among those invited were Danilo
Mendoza, petitioner, Alfonso Nisperos, Gervacio Pascua, William
Kiskis, Manuel dela Cruz, Jr., Erwin Vergara, and Nelson Romana.
During the party, Erwin Vergara got inebriated and had to be
brought to a nearby hut by Alfonso Nisperos and Willy Baluyot to
shake off the effects of his intoxication.

SANDOVAL-GUTIERREZ, J.:
For our resolution is the petition for review on certiorari seeking the
modification of the Decision1 of the Court of Appeals, dated June
29, 1999, in CA-G.R. CR No. 21536, which affirmed the judgment of
the Regional Trial Court (RTC), Branch 12, Laoag City, in Criminal
Case No. 7190. In this case the trial court convicted accused Danilo
Mendoza, petitioner herein, for homicide wherein the victim was
Alfonso Nisperos. Petitioner does not seek an acquittal but merely
prays that the privileged mitigating circumstance of incomplete
self-defense be considered in his favor.
The Information charging petitioner with homicide is quoted as
follows:
"That on 23 November, 1994, in the evening at Brgy. 19, San
Nicolas, Ilocos Norte, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill, did
then and there willfully, unlawfully and feloniously stab ALFONSO
NISPEROS on the different parts of his body which caused his death
few moments thereafter.
CONTRARY TO LAW."

When the duo returned, petitioner suddenly smashed a pitcher of

water on the table and shouted, "Bullshit! You are always asking us
to drink." The group was taken aback. Alfonso Nisperos asked
petitioner, "Why, MangDanny, why should we be the ones to
quarrel?"
Petitioner then went to his house about 40 to 45 meters away.
The group was still talking about petitioners outburst when Daniel
Nisperos, a brother of Alfonso Nisperos, joined them. Daniel noticed
that petitioners mother was displeased since the group was
discussing her sons behavior. She feared that something untoward
might happen. This caused the party to break up and the Nisperos
brothers headed for home. They were accompanied by their
mother, Loreta Nisperos.
After sometime, Alfonso Nisperos stepped out of his house to get
some soup. When he returned, he told his mother Loreta that he
saw a person near their cow tied to a tamarind tree. Alfonso then
went out again to check on the person he saw.
After a short while, Loreta suddenly heard Alfonso screaming,
"Mother, help me!"

Loreta rushed to her son. She found him lying, face down, with
petitioner on top of him, stabbing him with a knife.

the period which may be deemed proper, in view of the number

and nature of the conditions of exemption present or lacking."

Loreta then approached petitioner, pleading to him not to kill her

son. But instead of heeding her plea, he suddenly attacked her with
his knife, hitting her right arm. Petitioner then dashed away from
the scene.

Petitioner contends that the trial court erred in holding that the
witnesses for the prosecution who are close relatives of the victim
are credible.

Danilo brought his brother, Alfonso, to the Batac General Hospital in

Batac, Ilocos Norte where he was pronounced dead on
arrival.1awphi1.nt
Petitioner testified that the victim was the aggressor who attacked
him with a knife. Thus, he was forced to kill him with his own knife
in order to defend himself.
On July 8, 1997, the trial court rendered its Decision convicting
petitioner of homicide and sentencing him to suffer six (6) years
and one (1) day of prision mayor, as a minimum, to fourteen (14)
years and eight (8) months ofreclusion temporal, as a maximum,
"having taken into consideration his plea of guilty." Petitioner was
also ordered to pay the heirs of the victim P50,000.00 as damages.
On appeal, docketed as CA-G.R. CR No. 21536, the Court of Appeals
affirmed the Decision of the trial court.
Hence, the instant recourse.
The sole issue for our resolution is whether or not the Court of
Appeals erred in not finding that when petitioner committed the
crime charged, the privileged mitigating circumstance of
incomplete self-defense was present.
Petitioner, in his petition, relies on Article 69 of the Revised Penal
Code quoted as follows:
"ART. 69. Penalty to be imposed when the crime committed is not
wholly excusable. A penalty lower by one or two degrees than
that prescribed by law shall be imposed if the deed is not wholly
excusable by reason of the lack of some of the conditions required
to justify the same or to exempt from criminal liability in the several
cases mentioned in articles 11 and 12, provided that the majority of
such conditions be present. The courts shall impose the penalty in

Petitioner also contends that the prosecution failed to prove any

motive on his part in stabbing the victim.
Petitioner likewise faults the prosecution for its failure to present
the knife used in attacking the victim.
In incomplete self-defense, unlawful aggression must be present, it
being an indispensable requisite.l^vvphi1.net What is absent is
either one or both of the last requisites, to wit: reasonable
necessity of the means employed to prevent or repel it; and, lack of
sufficient provocation on the part of the person defending himself. 2
Just as in complete self-defense, the burden of proof is upon
petitioner to prove the elements of incomplete self-defense. It
follows that he should have proved before the trial court that there
was unlawful aggression on the part of the victim. As found by the
trial court, petitioner, to establish this element, testified that during
that drinking spree, he had an altercation with Willy Baluyot, the
birthday celebrant. Feeling bad, he (petitioner) slammed the table
with a pitcher containing water. Then he left. At a distance, he
heard the victim calling him. When they were close to each other,
the victim blamed him for his conduct. He apologized but the victim
started stabbing him with a knife. He tried to parry the attack as he
retreated. That moment, his back was against a wall. He then
grappled for the knife which he was able to wrench from the victim.
They rolled over on the ground. At that point, he repeatedly
stabbed the victim with his own knife.
The prosecution, to prove that petitioner was the aggressor
presented Loreta Nisperos, victims mother, who testified as
follows:
"Q: And when you proceeded to that madre tree, what did
you see?
A: My son was already lying flat on the ground facing the
ground and this Danilo was on top of him and stabbing him.

Q: You said that you saw Danilo stabbing your son, what
instrument did he use in stabbing your son?

Q: And when the accused followed your son, what did the
accused do?

A: Knife (immuko).

A: When I went near them, he also stabbed me.

Q: Can you approximate the time, what time was that?

Q: And what portion of your body was stabbed?

A: Between the hours of 8:00 and 9:00 oclock.

A: This one, sir. (Witness pointing to her right arm)."

Q: It was already nighttime and it was dark?

A: It was moonlight and there was also a light near the place
where they were drinking.
Q: From the place where you saw Danilo Mendoza stabbing
your son and the location of the bulb or the light, how far
was it?
ATTY. BELLO:
There is no need of this question because the accused
admitted that he stabbed the victim.
ASST. PROVL PROS. MOLINA:
xxx
Q: When you saw Danilo Mendoza stabbing your son, what
did you tell him?
A: I pleaded to him saying, Danilo, Danilo, Danilo, please do
not kill him.
Q: Upon saying those words, what happened next?
A: My son was able to move a little bit northward.
Q: And where did the accused go?
A: He still followed him.

As stated by the Solicitor General in the appellees brief, petitioner

was not defending himself from any attack but was himself the
aggressor against the victim and his mother.
The trial court did not believe petitioners testimony. Neither did the
Court of Appeals. It bears stressing that factual findings of trial
courts are accorded respect by appellate courts unless certain facts
have been overlooked which, if considered, could affect the result
of the case.3 This exception is not present here.
We thus agree with the Court of Appeals that there was no unlawful
aggression on the part of the victim. This element being absent,
petitioner cannot be accorded the privileged mitigating
circumstance of incomplete self-defense.
WHEREFORE, the appealed Decision of the Court of Appeals,
sustaining the judgment of the trial court, is AFFIRMED, with
costs de oficio.
SO ORDERED.

In Crim. Case No. Q-96-68049 accused-appellants Ronald a.k.a

Roland Garcia y Flores, Rodante Rogel y Rosales, Rotchel Lariba y
Demicillo and Gerry B. Valler, along with a certain Jimmy Muit, were
charged with and convicted of kidnapping for ransom and were
sentenced each to death, except aforementioned Jimmy Muit who
has remained at large, for obvious reasons, and to indemnify their
victim Romualdo Tioleco P200,000.00 and to pay the costs. 1
In a related case, Crim. Case No. Q-96-68050, which was decided
jointly with Crim. Case No. Q-96-68049, accused-appellants Rotchel
Lariba and Rodante Rogel were also found guilty of illegal
possession of firearms and ammunition and each sentenced to an
indeterminate prison term of four (4) years, nine (9) months and
eleven (11) days of prision correccional as minimum, to eight (8)
years, eight (8) months and one (1) day of prision mayoras
maximum, and to pay a fine of P30,000.00 plus the costs. 2 No
notice of appeal3 was filed in this criminal case; nonetheless, for
reasons herein below stated, we take cognizance of the case.

G.R. No. 133489 & G.R. No. 143970

January 15, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RONALD a.k.a "ROLAND" GARCIA y FLORES,* RODANTE
ROGEL y ROSALES, ROTCHEL LARIBA y DEMICILLO, and
GERRY B. VALLER, accused-appellants.
PER CURIAM:

Atty. Romualdo Tioleco was jogging alone at Gilmore Avenue, New

Manila, Quezon City, at about 5:30 o'clock in the morning of 5
October 1996.4 He was heading towards 4th Avenue when he
noticed a blue car parked at the corner of this street. 5 As he was
about to cross 4th Avenue, the car lurched towards him and
stopped.6 Two (2) men quickly alighted from the car.7 One of them
pointed a gun at Atty. Tioleco while the other hit his back and
pushed him into the back seat of the car. 8 Once inside, he saw two
(2) other men, one on the driver's seat and the other on the back
seat directly behind the driver.9 He found out later the identities of
the driver whom he undoubtedly recognized during the abduction
to be accused-appellant Gerry Valler, and of the other person on
the passenger seat behind Valler as accused-appellant Roland
"Ronald" Garcia.10 He described the man who disembarked from the
car and who pushed him inside to be 5'5" or 5'6" in height, medium
built, and the other, who threatened him with a gun, at 5'4" or 5'5"
in height, dark complexioned and medium built although heftier
than the other.11 These two (2) persons have since the commission
of the crime have remained at large.
While inside the car Atty. Tioleco was made to crouch on the leg
room.12 As it sped towards a destination then unknown to the
victim, the men on board feigned to be military men and pestered
him with the accusation of being a drug pusher and the threat of
detention at Camp Crame.13 As they were psyching him down,
"they started putting blindfold on [him] and packaging tape on

[his]face and handcuffed [him] on the back of [his] body." 14 His

eyeglasses were taken off "when they were putting blindfold on
[him] x x x."15 Then they divested him of his other personal
belongings, e.g., his keys, wristwatch, etc.16
The car cruised for thirty (30) to forty-five (45) minutes. 17 When it
finally stopped, Atty. Tioleco was told to alight, led to a house and
then into a room.18 He remained blindfolded and handcuffed
throughout his ordeal and made to lie down on a wooden
bed.19 During his captivity, one of the kidnappers approached him
and told him that he would be released for a ransom of P2
million20 although the victim bargained for an amount between
P50,000.00 and P100,000.00 which according to him was all he
could afford. While still under detention, one of his abductors told
him that they had mistaken him for a Chinese national and
promised his release without ransom.21 But he was just being taken
for a ride since the kidnappers had already begun contacting his
sister Floriana Tioleco.
Floriana was at her office when her mother called up about her
brother's kidnapping.22 Floriana hurried home to receive a phone
call from a person who introduced himself as "Larry Villanueva"
demanding P3 million for Atty. Tioleco's ransom. 23 Several other
calls to Floriana were made during the day and in one of those calls
the ransom was reduced to P2 million. 24 Around 7:00 o'clock in the
evening of the same day, 5 October 1996, P/Sr. Insp. Ronaldo
Mendoza of the Presidential Anti-Crime Commission (PACC) arrived
at Floriana's house to monitor her brother's kidnapping upon the
request of her friends.25 Floriana received the following day about
eight (8) phone calls from the kidnappers still demanding P2 million
for her brother's safe release.26
By the end of the day on 7 October 1996 Floriana was able to raise
only P71,000.00,27 which she relayed to the kidnappers when they
called her up.28 They finally agreed to set her brother free upon
payment of this amount, which was short of the original
demand.29 The pay-off was scheduled that same day at around 8:00
o'clock in the evening at Timog Avenue corner Scout Tuazon in
Quezon City near the "Lighthaus" and "Burger Machine." 30Upon
instruction of P/Sr. Insp. Mendoza, Floriana together with only two
(2) female friends proceeded to this meeting place. 31 They reached
there at 8:40 o'clock in the evening and waited for the kidnappers
until about 10:30 or 11:00 o' clock that evening.32

Meanwhile, P/Sr. Insp. Mendoza relayed the information about the

pay-off and other relevant facts to P/Chief Insp. Gilberto Cruz at the
PACC headquarters.33 With the information from P/Sr. Insp.
Mendoza, P/Chief Insp. Cruz, together with P/Chief Insps. Winnie
Quidato and Paul Tucay with P/Sr. Insp. Nilo Pagtalunan,
immediately went to Timog Avenue corner scout Tuazon near the
"Lighthaus" and "Burger Machine" in Quezon City. 34 They surveyed
this site and saw a blue Toyota Corona with three (3) persons on
board suspiciously stopping about five (5) meters from Floriana and
her friends and remaining there for almost two (2) hours. 35
Floriana and her friends left the "pay-off site" after waiting for two
(2) hours more or less;36 so did the blue Toyota Corona almost
simultaneously.37 No payment of ransom took place.38P/Chief Insp.
Cruz then ordered P/Chief Insps. Quidato and Tucay and their
subordinates to tail this car which they did all the way to the De
Vega Compound at Dahlia Street in Fairview, Quezon City. 39 This
compound consisted of one bungalow house and was enclosed by a
concrete wall and a steel gate for ingress and egress. 40 They posted
themselves thirty (30) to forty (40) meters from the compound to
reconnoiter the place.41 Meanwhile, the kidnappers explained in a
phone call to Floriana that they had aborted the pay-off on account
of their belief that her two (2) companions at the meeting place
were police officers.42 But she assured them that her escorts were
just her friends.43
At around 1:00 o'clock in the afternoon of 8 October 1996 Floriana
received a call from the kidnappers at her house 44 who wanted to
set another schedule for the payment of the ransom money an
hour later or at 2:00 o'clock. 45 This time the rendezvous would be in
front of McDonald's fastfood at Magsaysay Boulevard in Sta. Mesa,
Manila.46 She was told by the kidnappers that a man would go near
her and whisper "Romy" to whom she would then hand over the
ransom money. Floriana agreed to the proposal. With her two (2)
friends, she rushed to the place and brought with her the
P71,000.00.47 About this time, the same blue Toyota Corona seen at
the first pay-off point left the De Vega Compound in Fairview. 48 A
team of PACC operatives under P/Chief Insp. Cruz again stationed
themselves in the vicinity of McDonald's. 49
Floriana arrived at the McDonald's restaurant and waited for a few
minutes.50 Not long after, the blue Toyota Corona was spotted
patrolling the area.51 The blue car stopped and, after dropping off a
man, immediately left the place. The man approached Floriana and
whispered "Romy" to her. 52 She handed the money to him who took

it.53 Floriana identified this man during the trial as accusedappellant Roland (Ronald) Garcia.54
The PACC operatives tried to follow the blue car but were prevented
by traffic.55 They were however able to catch up and arrest Garcia
who was in possession of the ransom money in the amount of
P71,000.00.56 They brought him inside their police car and there
apprised him of his custodial rights. 57 Garcia informed the PACC
operatives that Atty. Tioleco was being detained inside the De Vega
compound in Fairview.58 With this information, P/Chief Insp. Cruz
ordered P/Chief Insps. Tucay and Quidato who had been posted
near the compound to rescue the victim.59
The two (2) PACC officers, together with their respective teams,
entered the compound and surged into the bungalow house where
they saw two (2) men inside the living room. 60 As one of the PACC
teams was about to arrest the two (2) men, the latter ran towards a
room in the house where they were about to grab a .38 cal.
revolver without serial number loaded with six (6) rounds of
ammunitions and a .357 cal. revolver with six (6) live
ammunitions.61 The other PACC team searched the house for Atty.
Tioleco and found him in the other room. 62The two (2) men were
arrested and informed of their custodial rights. They were identified
in due time as accused-appellants Rodante Rogel and Rotchel
Lariba.63
P/Chief Insp. Cruz arrived at the De Vega compound 64 and
coordinated with the proper barangay authorities.65While the PACC
operatives were completing their rescue and arrest operations, the
house phone rang.66Accused-appellant Rogel answered the call
upon the instruction of P/Chief Insp. Cruz. 67 Rogel identified the
caller to be accused-appellant Valler who was then driving towards
the De Vega compound.68 In the same phone call, Valler also talked
with accused-appellant Garcia to inquire about the ransom money. 69
Then a blue Toyota Corona arrived at the De Vega
compound.70 Valler alighted from the car and shouted at the
occupants of the house to open the gate. 71 Suspicious this time,
however, he went back to his car to flee. 72 But the PACC operatives
pursued his car, eventually subduing and arresting him.73 The
operations at the De Vega Compound ended at 8:30 in the evening
and the PACC operatives, together with Atty. Tioleco and the
accused-appellants, left the De Vega compound and returned to
their headquarters in Camp Crame, Quezon City. 74 The ransom
money was returned intact to Atty. Tioleco.75

When arraigned, accused-appellants Ronald "Roland" Garcia,

Rodante Rogel, Rotchel Lariba and Gerry Valler pleaded not guilty
to the charge of kidnapping for ransom in Crim. Case No. Q-9668049, although during the trial Garcia admitted complicity in the
abduction of Atty. Tioleco and in the receipt of the ransom money
from the victim's sister Floriana.76 In Crim. Case No. Q-96-68050 for
illegal possession of firearms and ammunition, Rodante Rogel and
Rotchel Lariba also pleaded not guilty. 77
During the trial, Gerry Valler denied being part of the kidnapping for
ransom and asserted that he was at the De Vega compound where
he was arrested on 8 October 1996 solely to pay for the fighting
cocks he had bought from one Jimmy Muit, alleged owner of the
compound.78 Accused Ronald Garcia, despite his admission to the
crime, nevertheless disowned any role in planning the crime or
knowing the other accused-appellants since his cohorts were
allegedly Jimmy Muit and two (2) others known to him only as
"Tisoy" and "Tony."79 He also alleged that it was Jimmy Muit's red
Toyota car that was used in the crime. 80 Explaining their presence
at the De Vega compound at the time they were arrested, Rogel
claimed that he was employed as a helper for breeding cocks in
this compound81 while Lariba's defense focused on an alleged prior
agreement for him to repair Jimmy Muit's car.82
Accused-appellants filed separate appellants' briefs. In the brief
submitted by the Public Attorneys Office in behalf of accusedappellants Garcia, Rogel and Lariba, they argue that the crime of
kidnapping for ransom was not committed since Atty. Tioleco was
released from detention by means of the rescue operation
conducted by the PACC operatives and the ransom money
subsequently recovered.83 They conclude that their criminal liability
should only be for slight illegal detention under Art. 268, of The
Revised Penal Code. Accused-appellants Rogel and Lariba further
assert that they could not be held guilty of illegal possession of
firearms and ammunition since neither was in complete control of
the firearms and ammunition that were recovered when they were
arrested and no evidence was offered to prove responsibility for the
presence of firearms and ammunition inside the room. 84
The brief filed for accused-appellant Gerry B. Valler asserts the
same defense he made at the trial that he was at the De Vega
compound only to pay his debts to Jimmy Muit, 85 arguing that Atty.
Tioleco did not have the opportunity to really recognize him so that
his identification as the driver of the car was tainted by police

suggestion, and that P/Chief Insp. Cruz' testimony is allegedly

replete with inconsistencies that negate his credibility. 86
Encapsulated, the issues herein focun on (a) the "ransom" as
element of the crime under Art. 267 of The Revised Penal Code, as
amended; (b) the sufficiency of the prosecution evidence to prove
kidnapping for ransom; (c) the degree of responsibility of each
accused-appellant for kidnapping for ransom; and, (d) the liability
for illegal possession of firearms and ammunition under RA 8294,
amending PD 1866.
First. We do not find any quantum of merit in the contention that
kidnapping for ransom is committed only when the victim is
released as a result of the payment of ransom. In People v.
Salimbago87 we ruled No specific form of ransom is required to consummate the
felony of kidnapping for ransom so long as it was intended
as a bargaining chip in exchange for the victim's freedom. In
municipal criminal law, ransom refers to the money, price or
consideration paid or demanded for redemption of a
captured person or persons, a payment that releases from
captivity. Neither actual demand for nor actual payment of
ransom is necessary for the crime to be committed. It is
enough if the crime was committed "for the purpose of
extorting ransom." Considering therefore, that the
kidnapping was committed for such purpose, it is not
necessary that one or any of the four circumstances be
present.
So the gist of the crime, as aptly stated in American jurisprudence
from which was derived the crime of kidnapping for ransom, 88 is
"not the forcible or secret confinement, imprisonment,
inveiglement, or kidnapping without lawful authority, but x x x the
felonious act of so doing with intent to hold for a ransom the person
so kidnapped, confined, imprisoned, inveigled, etc."89
It is obvious that once that intent is present, as in the case at bar,
kidnapping for ransom is already committed. Any other
interpretation of the role of ransom, particularly the one advanced
by accused-appellants, is certainly absurd since it ironically
penalizes rescue efforts of kidnap victims by law enforcers and in
turn rewards kidnappers for the success of police efforts in such
rescue operations. Moreover, our jurisprudence is replete with
cases, e.g.,People v. Chua Huy,90 People v. Ocampo91 and People v.

Pingol,92 wherein botched ransom payments and effective recovery

of the victim did not deter us from finding culpability for kidnapping
for ransom.1wphi1.nt
Second. Issues of sufficiency of evidence are resolved by reference
to findings of the trial court that are entitled to the highest respect
on appeal in the absence of any clear and overwhelming showing
that the trial court neglected, misunderstood or misapplied some
facts or circumstances of weight and substance affecting the result
of the case.93 Bearing this elementary principle in mind, we find
enough evidence to prove beyond reasonable doubt the
cooperation of all accused-appellants in the kidnapping for ransom
of Atty. Tioleco.
Truly incriminating is the judicial confession of accused-appellant
Garcia of his participation in the commission of the crime. He
admitted that he took part in actually depriving Atty. Tioleco of his
liberty94 and in securing the ransom payment from Floriana
Tioleco.95 He could not have been following mechanically the orders
of an alleged mastermind, as he claims, since by his own admission
he was neither threatened, forced or intimidated to do so 96nor
mentally impaired to resist the orders. 97 In the absence of evidence
to the contrary, he is presumed to be in full possession of his
faculties and conscience to resist and not to do evil.
We cannot also give credence to Garcia's asseveration that the
persons still at large were his co-conspirators. This posture is a
crude attempt to muddle the case as discerned by the trial court
from his demeanor when he testified Because he had been caught in flagrante delicto, Roland
Garcia admitted his participation in the crime charged. From
his testimony, however, there appears a veiled attempt to
shield Gerry Valler from conviction. First, Garcia claimed that
the car they used was reddish in color (TSN, October 20,
1997, pp. 9, 19 & 20). Then he added that the owner of the
car was Jimmy Muit and not Gerry Valler (TSN, October 20,
1997, p. 9). Next, he said that there was no conspiracy and
he did not know then Gerry Valler, Rodante Rogel and Rogel
Lariba until they were placed together in Camp Crame (Ibid.,
p. 22).
The Court however cannot simply accept this part of his story. To
begin with, his repeated reference to the color of the car as reddish
is quite suspicious. He conspicuously stressed the color of the car in

three (3) instances without being asked. The transcripts of the

notes bear out the following:
ATTY. MALLABO: Did you use any vehicle while you were
there at Gilmore Street?
A:

Yes, sir.

Q:

What kind of vehicle was that?

A:
x

Jimmy's car, a Toyota, somewhat reddish in color x x x

Q:
By the way, what car did you use when you were
roaming around Quezon City on October 6 in the evening?
A:
Jimmy's
color. Reddish.

car,

which

was

somewhat red

in

Q:
And what car did you use the following day when you
took the bag? The same car?
A:
The same car, the
somewhat reddish in color.

Toyota

car

which

was

Such a clear attempt to mislead and deceive the Court with

such unsolicited replies cannot succeed. On October 8,
1996, in the vicinity of McDonald's, he was seen alighting
from the blue Toyota Corona (TSN, March 17, 1997, pp. 2832). As earlier pointed out, the blue Toyota Corona car is
owned by Gerry Valler who was the one driving it in the
afternoon of the same day to the De Vega compound (TSN,
April 28, 1997, pp. 64-67; and November 10, 1997, pp. 2228). Gerry Valler was also identified by Atty. Tioleco as the
driver of the dark blue car used in his abduction (TSN, April
10, 1997, pp. 10-11; and TSN, April 14, 1997, pp. 21-27). 98

in fact talked with accused-appellant Rogel to tell him that he was

coming over99 and with accused-appellant Garcia to ask from him
about the ransom supposedly earlier collected. 100 Given the
overwhelming picture of his complicity in the crime, this Court
cannot accept the defense that he was only trying to pay his debts
to Jimmy Muit when he was arrested.
We find nothing substantive in Valler's attempt to discredit the
victim's positive identification of him on the trifling observation that
Atty. Tioleco was too confused at the time of his abduction to
recognize accused-appellant's physical features accurately. It is
truly evident from the testimony of Atty. Tioleco that his vision and
composure were not impaired by fear or shock at the time of his
abduction and that he had the opportunity to see vividly and
remember unerringly Valler's face Q:
Where were these two unidentified men positioned
inside the car?
A:
One of them was at the driver's seat and the other
one was immediately behind the driver's seat.
Q:
Now, could you please describe to this honorable
court the person who was seated on the driver's seat?
A:
He has a dark complexion, medium built and short
hair at that time.
Q:
If you see that person again will you be able to
identify him sir?
A:

Q:
And if he's present in the courtroom will you be able
to point to him?
A:

Accused-appellant Valler's profession of innocence also deserves no

consideration. Various circumstances indubitably link him to the
crime. For one, he was positively identified by Atty. Tioleco to be
the driver of the dark blue Toyota car used in the abduction on 5
October 1997, which car was seen again twice during the occasions
for ransom payment. This was followed by a telephone call made
by Valler to the house where Atty. Tioleco was being detained and

Yes, sir.

Yes, sir.

Q:
At this juncture your honor we would like to request
with the court's permission the witness be allowed to step
down from the witness stand and approach the person just
described and tap him on his shoulder.

COURT INTERPRETER: Witness stepping down from the

witness stand and approached the person he had just
described and tapped him on his shoulder and who when
asked to identify himself he gave his name as Gerry Valler. 101
Even on cross-examination, Atty. Tioleco was steadfast in his
reference to Gerry Valler Q:
What stage was that when your eyeglasses were
grabbed by these persons inside the car?
A:
That was after the other accused entered the vehicle
and the car zoomed away, that was when they were putting
a blindfold on me, that was the time when they started
removing my eyeglasses, sir x x x x102
Q:
So when you were inside the car, you had difficulty
seeing things inside the car because you were not wearing
your eyeglasses?
A:
No, sir, that is not correct, because they were close,
so I can see them x x x x103
Q:
And as a matter of fact, it was the PACC operatives
who informed you that the person being brought in was also
one of the suspects, am I correct?

Q:

You were informed that his name is Gerry Valler?

A:
When he went inside the house and the kitchen, they
started interviews, that is where I learned his name, Gerry
Valler x x x x104
Q:
But I thought that when you were pushed inside the
car, you were pushed head first, how can you easily
describe this person driving the vehicle and the person
whom you now identified as Roland Garcia?
A:
Even if they pushed my head, there was an
opportunity for me to see the face of the accused. 105
As we held in People v. Candelario, 106 it is the most natural reaction
for victims of crimes to strive to remember the faces of their
assailants and the manner in which the craven acts are committed.
There is no reason to disbelieve Atty. Tioeleco's claim that he saw
the faces of his abductors considering that they brazenly
perpetrated the crime in broad daylight without donning masks to
hide their faces. Besides, there was ample opportunity for him to
discern their features from the time two (2) of his kidnappers
approached and forced him into their car and once inside saw the
other two (2), including Gerry Valler, long enough to recall them
until he was blindfolded.

A:
That is not correct, sir. They said that, but I know that
is one of the suspects because he was the person who was
driving the vehicle at the time I got kidnapped. So I know
him.

The victim's identification of accused-appellant Valler is not any bit

prejudiced by his failure to mention Valler's name in his affidavit. It
is well-settled that affidavits are incomplete and inaccurate
involving as they do mere passive mention of details anchored
entirely on the investigator's questions. 107 As the victim himself
explained -

Q:
So you saw him at the time you were kidnapped that
is why you were able to identify him when he was ushered
in?

Q:
Now, in Question No. 5 and I quote x x x Why did you
not identify here the name of the driver as one Gerry Valler?

A:
When he was brought into the kitchen I saw him.
When I saw him, I knew he was one of the suspects.

A:
Because they never asked me the name. They just
asked me to narrate what happened. Had they asked me the
name, I could have mentioned the name.108

Q:

When you saw him, he was in handcuffs?

A:

Yes, sir, that is correct.

In light of the positive identification by the victim of accusedappellant Valler, the latter's denial must fall absolutely. Clearly,
positive identification of the accused where categorical and
consistent and without any showing of ill motive on the part of the

eyewitness testifying on the matter prevails over his

defense.109 When there is no evidence to show any dubious reason
or improper motive why a prosecution witness would testify falsely
against an accused or falsely implicate him in a heinous crime, the
testimony is worthy of full faith and credit.110
Finally, we do not see any merit in Valler's enumeration of alleged
inconsistencies in the testimony of P/Chief Insp. Gilbert Cruz
concerning (a) the time and place of meeting between the PACC
operatives and Floriana Tioleco; (b) the schedule of the first and
second ransom pay-offs; (c) the number of Floriana Tioleco's
companions during the aborted first pay-off; (d) the number of
occupants in the blue Toyota car; and, (e) the PACC operatives'
recognition of Floriana Tioleco during the ransom payments. This is
an argument that clutches at straws. For one, the purported
inconsistencies and discrepancies involve estimations of time or
number, hence, the reference thereto by the witness would
understandably vary. Furthermore, they are too minor to warrant
the reversal of the judgment of conviction. They do not affect the
truth of the testimonies of witnesses nor do they discredit their
positive identification of accused-appellants. On the contrary, such
trivial inconsistencies strengthen rather than diminish the
prosecution's case as they erase suspicion of a rehearsed
testimony and negate any misgiving that the same was perjured. 111
We also do not believe that accused-appellants Rogel and Lariba
are innocent bystanders in this case. It taxes the mind to believe
Rogel's defense that as a caretaker of the place where Atty. Tioleco
was detained, he observed nothing unusual about this incident. An
innocent man would have immediately reported such dastardly act
to the authorities and refused to sit idly by, but a guilty person in
contrast would have behaved otherwise as Rogel did.112
Accused-appellant Lariba's defense is similarly incredible. He joins
Gerry Valler in proclaiming that he too was allegedly at the wrong
place at the wrong time for the wrong reason of just wanting to
tune up the car of Jimmy Muit. But for all these assertions, he failed
to produce satisfactory evidence that he was indeed there to repair
such car. Of all the days he could have discharged his work, he
chose to proceed on 8 October 1997 when the kidnapping was in
full swing. There was even no car to repair on the date that he
showed up. Like the submission of Rogel, Lariba's defense falls
completely flat for he could have so easily observed the kidnapping
of Atty. Tioleco that was taking place in the house of Jimmy Muit.

In sum, accused-appellants cannot rely upon the familiar phrase

"reasonable doubt" for their acquittal. As demonstrated by the
fastiduous references of Valler to alleged inconsistencies of P/Chief
Insp. Cruz, not all possible doubt is reasonable since in the nature
of things everything relating to human affairs is open to some
imaginary dilemma. As we have said in People v. Ramos,113 "it is not
such a doubt as any man may start by questioning for the sake of a
doubt; nor a doubt suggested or surmised without foundation in
facts or testimony, for it is possible always to question any
conclusion derived from testimony. Reasonable doubt must arise
from the evidence adduced or from the lack of evidence, and it
should pertain to the facts constitutive of the crime charged."
Accused-appellants have not shown the presence of such fatal
defects in this case. Clearly, all the elements and qualifying
circumstances to warrant conviction for the crime of kidnapping for
ransom and serious illegal detention have been established beyond
reasonable doubt.
Third. We go into the criminal liability of each accused-appellant.
There is no doubt that Gerry Valler and Ronald Garcia are principals
by direct participation and co-conspirators in the kidnapping for
ransom of Atty. Tioleco. Their respective participation in
perpetrating the crime cannot be denied. As regards their liability
as co-conspirators, we find the same to have also been shown
beyond reasonable doubt. Conspiracy exists when two or more
persons come to agreement concerning the commission of a felony
and decide to commit it for which liability is joint. 114 Proof of the
agreement need not rest on direct evidence as the felonious
covenant itself may be inferred from the conduct of the parties
before, during, and after the commission of the crime disclosing a
common
understanding
between
them
relative
to
its
commission.115 The acts of Valler and Garcia in coordinating the
abduction, collection of ransom and detention of their victim
indubitably prove such conspiracy.
Lariba and Rogel were caught inside the house where Atty. Tioleco
was detained. P/Chief Insp. Paul Tucay testified on their
involvement Q:
Okey, when you stormed the place, do you know
where these two men were?
A:
The two men were seated at the sala during that
time, sir.

Q:
They were seated at the sala when you entered the
place?
A:

Yes, sir.

Q:

What happened after entering the gate?

A:
We announced that we were police officers of the
Presidential Anti-Crime Commission.
Q:
Do you know what happened with these two men
during that time?
A:
They were caught by surprise and they were about to
run to the first room.
Q:
What happened when these two men who were at the
living room or at the sala, when they ran to the first room?
A:

We surprised them and cornered them in that room.

Q:
What about the team of Major Quidato, where did
they proceed?
A:
Major Quidato's team proceeded to the second room
where Atty. Tioleco was being kept.
Q:
According to you, you gave chase to these two men
who were earlier in the sala and they ran upon your
announcement that you were police officers?
A:
When we cornered them in that room, they were
about to grab the two revolvers loaded with six (6) rounds of
ammunitions.
Q:

Where were these revolvers placed, Mr. Witness?

A:
They were placed on top of a cabinet, which, when
you enter in the room, is placed on the right side of the
room.
Q:

How many revolvers were you able to recover?

A:

There were two revolvers.

Q:
And can you please describe these revolvers to this
Honorable Court?
A:
Yes, sir x x x x The revolvers confiscated on that raid
are one (1) .38 caliber revolver without serial number loaded
with 6 rounds of ammunition, live ammo, one .357 also
loaded with 6 rounds of live ammunitions. 116
Correlating the above testimony with the other evidence, it is clear
that at the time Lariba and Rogel were caught, Atty. Tioleco had
already been rendered immobile with his eyes blindfolded and his
hands handcuffed. No evidence exists that he could have gone
elsewhere or escaped. At the precise moment of their
apprehension, accused-appellants Lariba and Rogel were unarmed
although guns inside one of the rooms of the house were available
for their use and possession.
Assessing these established circumstances in the manner most
favorable to Lariba and Rogel, we conclude that they were merely
guarding the house for the purpose of either helping the other
accused-appellants in facilitating the successful denouement to the
crime or repelling any attempt to rescue the victim, as shown by
the availability of arms and ammunition to them. They thus
cooperated in the execution of the offense by previous or
simultaneous acts by means of which they aided or facilitated the
execution of the crime but without any indispensable act for its
accomplishment. Under Art. 18 of The Revised Penal Code, they are
mere accomplices.
In People v. De Vera117 we distinguished a conspirator from an
accomplice in this manner Conspirators and accomplices have one thing in common:
they know and agree with the criminal design. Conspirators,
however, know the criminal intention because they
themselves have decided upon such course of action.
Accomplices come to know about it after the principals have
reached the decision, and only then do they agree to
cooperate in its execution. Conspirators decide that a crime
should be committed; accomplices merely concur in it.
Accomplices do not decide whether the crime should be
committed; they merely assent to the plan and cooperate in
its accomplishment. Conspirators are the authors of a crime;

accomplices are merely their instruments who perform acts

not essential to the perpetration of the offense.
In the instant case, we cannot deny knowledge on the part of
Lariba and Rogel that Valler and Garcia had kidnapped Atty. Tioleco
for the purpose of extorting ransom and their cooperation to pursue
such crime. But these facts without more do not make them coconspirators since knowledge of and participation in the criminal
act are also inherent elements of an accomplice. 118 Further, there is
no evidence indubitably proving that Lariba and Rogel themselves
participated in the decision to commit the criminal act. As the
evidence stands, they were caught just guarding the house for the
purpose of either helping the other accused-appellants in
facilitating the success of the crime or repelling any attempt to
rescue the victim as shown by the availability of arms and
ammunition to them. These items contrast starkly with the tried
and true facts against Valler and Garcia that point to them as the
agents ab initio of the design to kidnap Atty. Tioleco and extort
ransom from his family.1wphi1.nt
Significantly, the crime could have been accomplished even
without the participation of Lariba and Rogel. As stated above, the
victim had been rendered immobile by Valler and Garcia before the
latter established contacts with Floriana Tioleco and demanded
ransom. The participation of Lariba and Rogel was thus hardly
indispensable. As we have held in Garcia v. CA, "in some
exceptional situations, having community of design with the
principal does not prevent a malefactor from being regarded as an
accomplice if his role in the perpetration of the homicide or murder
was, relatively speaking, of a minor character." 119 At any rate,
where the quantum of proof required to establish conspiracy is
lacking and doubt created as to whether the accused acted as
principal or accomplice, the balance tips for the milder form of
criminal liability of an accomplice.120
We are not unaware of the ruling in People v. Licayan that
conspiracy can be deduced from the acts of the accused-appellants
and their co-accused which show a concerted action and
community of interest. By guarding Co and Manaysay and
preventing their escape, accused-appellants exhibited not only
their knowledge of the criminal design of their co-conspirators but
also their participation in its execution. 121 But the instant case is
different. Considering the roles played by Lariba and Rogel in the
execution of the crime and the state the victim was in during the
detention, it cannot be said beyond reasonable doubt that these

accused-appellants were in a real sense detaining Atty. Tioleco and

preventing his escape. The governing case law is People v. Chua
Huy122where we ruled The defendants' statements to the police discarded, the
participation of the other appellants in the crime consisted
in guarding the detained men to keep them from escaping.
This participation was simultaneous with the commission of
the crime if not with its commencement nor previous
thereto. As detention is an essential element of the crime
charged, as its name, definition and graduation of the
penalty therefor imply, the crime was still in being when
Lorenzo Uy, Tan Si Kee, Ang Uh Ang, William Hao and Young
Kiat took a hand in it. However, we are not satisfied from the
circumstances of the case that the help given by these
accused was indispensable to the end proposed. Our opinion
is that these defendants are responsible as accomplices
only.
Fourth. In the beginning, we noted that neither Lariba nor Rogel
who were both convicted of illegal possession of firearms and
ammunition in Crim. Case No. Q-96-68049 filed a notice of appeal
in accordance with established procedures, although the records
show that accused-appellant Gerry Valler needlessly did so
exclusively in his behalf.123 But in light of the enactment of RA 8294
amending PD 1866 effective 6 July 1997, 124 and our ruling inPeople
v. Ladjaalam125 followed in Evangelista v. Siztoza,126 we nonetheless
review this conviction to give effect to Art. 22 of The Revised Penal
Code mandating in the interest of justice the retroactive application
of penal statutes that are favorable to the accused who is not a
habitual criminal.127
In Ladjaalam we ruled that if another crime was committed by the
accused he could not be convicted of simple illegal possession of
firearms under RA 8294 amending PD 1866 Aside from finding appellant guilty of direct assault with
multiple attempted homicide, the trial court convicted him
also of the separate offense of illegal possession of firearms
under PD 1866, as amended by RA 8294, and sentenced him
to 6 years of prision correccional to 8 years of prision mayor
xxxx
The trial court's ruling and the OSG's submission exemplify
the legal community's difficulty in grappling with the

changes brought about by RA 8294. Hence, before us now

are opposing views on how to interpret Section 1 of the new
law, which provides as follows:

d'etat, such violation shall be absorbed as an

element of the crime of rebellion or insurrection,
sedition, or attempted coup d'etat.

Sec. 1. - Section 1 of Presidential Decree No. 1866, as

amended, is hereby further amended to read as
follows:

The same penalty shall be imposed upon the owner,

president, manager, director or other responsible
officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly
allow any of the firearms owned by such firm,
company, corporation or entity to be used by any
person or persons found guilty of violating the
provisions of the preceding paragraphs or willfully or
knowingly allow any of them to use unlicensed
firearms or firearms without any legal authority to be
carried outside of their residence in the course of
their employment.

Sec. 1.
Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition
Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition.- The penalty
of prision correccional in its maximum period and a
fine of not less than Fifteen thousand pesos
(P15,000) shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low powered firearm, such as
rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be
used in the manufacture of any firearm or
ammunition: Provided, That no other crime was
committed.
The penalty of prision mayor in its minimum period
and a fine of Thirty thousand pesos (P30,000) shall
be imposed if the firearm is classified as high
powered firearm which includes those with bores
bigger in diameter than .30 caliber and 9 millimeter
such as caliber .40, .41, .44, .45 and also lesser
calibered firearms but considered powerful such as
caliber .357 and caliber .22 centerfire magnum and
other firearms with firing capability of full automatic
and by burst of two or three: Provided, however, That
no other crime was committed by the person
arrested.
If homicide or murder is committed with the use of
an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating
circumstance.
If the violation of this Section is in furtherance of or
incident to, or in connection with the crime of
rebellion or insurrection, sedition, or attempted coup

The penalty of arresto mayor shall be imposed upon

any person who shall carry any licensed firearm
outside his residence without legal authority therefor.
x x x x A simple reading thereof shows that if an unlicensed
firearm is used in the commission of any crime, there can be
no separate offense of simple illegal possession of firearms.
Hence, if the "other crime" is murder or homicide, illegal
possession of firearms becomes merely an aggravating
circumstance, not a separate offense. Since direct assault
with multiple attempted homicide was committed in this
case, appellant can no longer be held liable for illegal
possession of firearms.
Moreover, penal laws are construed liberally in favor of the
accused. In this case, the plain meaning of RA 8294's simple
language is most favorable to herein appellant. Verily, no
other interpretation is justified, for the language of the new
law demonstrates the legislative intent to favor the accused.
Accordingly, appellant cannot be convicted of two separate
offenses of illegal possession of firearms and direct assault
with attempted homicide. Moreover, since the crime
committed was direct assault and not homicide or murder,
illegal possession of firearms cannot be deemed an
aggravating circumstance x x x x The law is clear: the
accused can be convicted of simple illegal possession of
firearms, provided that "no other crime was committed by
the person arrested." If the intention of the law in the

second paragraph were to refer only to homicide and

murder, it should have expressly said so, as it did in the
third paragraph. Verily, where the law does not distinguish,
neither should we.
The Court is aware that this ruling effectively exonerates
accused-appellants x x x of illegal possession of an M-14
rifle, an offense which normally carries a penalty heavier
than that for direct assault. While the penalty for the first
is prision mayor, for the second, it is only prision
correccional. Indeed, an accused may evade conviction for
illegal possession of firearms by using such weapons in
committing an even lighter offense, like alarm and scandal
or slight physical injuries, both of which are punishable
by arresto menor. This consequence necessarily arises from
the language of RA 8294 the wisdom of which is not subject
to review by this Court.128
Accordingly, we are constrained to dismiss Crim. Case No. Q-9668049 and set aside the judgment of conviction therein since
accused-appellants Rotchel Lariba and Rodante Rogel cannot be
held liable for illegal possession of firearms and ammunitions there
being another crime - kidnapping for ransom - which they were
perpetrating at the same time.
In fine, we affirm the conviction of Gerry Valler and Ronald "Roland"
Garcia as principals and Rotchel Lariba and Rodante Rogel as
accomplices for the crime of kidnapping for ransom and serious
illegal detention. This Court is compelled to impose the supreme
penalty of death on Valler and Garcia as mandated by Art. 267
of The Revised Penal Code, as amended by RA 7659.
The penalty imposable on Lariba and Rogel as accomplices
is reclusion perpetua, the penalty one degree lower than that
prescribed for the crime committed pursuant to Art. 52 in relation
to Art. 61, par. (1), of the Code. We however set aside the judgment
in Crim. Case No. Q-96-68049 convicting Lariba and Rogel of illegal
possession of firearms and ammunition in light of the foregoing
discussion.
As regards the moral damages against accused-appellants to be
paid by them in solidum, we find the amount of P200,000.00 to be
reasonable compensation for the ignominy and sufferings Atty.
Tioleco and his family endured due to accused-appellants'
inhumane act of detaining him in blindfold and handcuffs and

mentally torturing him and his family to raise the ransom money.
The fact that they suffered the trauma of mental, physical and
psychological ordeal which constitute the bases for moral damages
under the Civil Code129 is too obvious to require still the recital
thereof at the trial through the superfluity of a testimonial charade.
Following our finding that only Gerry Valler and Ronald "Roland"
Garcia are principals by direct participation and conspirators while
Rotchel Lariba and Rodante Rogel are accomplices, we apportion
their respective responsibilities for the amount adjudged as moral
damages to be paid by them solidarily within their respective class
and subsidiarily for the others.130 Thus, the principals, accusedappellants Ronald "Roland" Garcia and Gerry Valler, shall pay their
victim Atty. Romualdo Tioleco P150,000.00 for moral damages and
the accomplices P50,000.00 for moral damages.
WHEREFORE, the Decision of the court a quo is MODIFIED. In Crim.
Case No. Q-96-68049 (G.R. No. 133489) accused-appellants
RONALD "ROLAND" GARCIA y FLORES and GERRY B. VALLER are
declared guilty as PRINCIPALS of kidnapping for ransom and serious
illegal detention and are sentenced each to death, while accusedappellants RODANTE ROGEL y ROSALES and ROTCHEL LARIBA y
DEMICILLO are convicted as ACCOMPLICES and are ordered to serve
the penalty of reclusion perpetua with the accessories provided by
law for the same crime of kidnapping for ransom and serious illegal
detention. Accused-appellants are further ordered to pay moral
damages in the amount of P200,000.00, with the principals being
solidarily liable for P150,000.00 of this amount and subsidiarily for
the civil liability of the accomplices, and the accomplices being
solidarily liable for P50,000.00 for moral damages and subsidiarily
for the civil liability of the principals.1wphi1.nt
Finally, in Crim. Case No. Q-96-68050 (G.R. No. 143970) the
Decision of the court a quo convicting RODANTE ROGEL y ROSALES
and ROTCHEL LARIBA y DEMICILLO of illegal possession of firearms
and ammunition isREVERSED and SET ASIDE in light of the
enactment of RA 8294 and our rulings in People v.
Ladjaalam131 andEvangelista v. Siztoza.132
Four (4) Justices of the Court maintain their position that RA 7659 is
unconstitutional insofar as it prescribes the death penalty;
nevertheless, they submit to the ruling of the majority that the law
is constitutional and the death penalty can be lawfully imposed in
the case at bar.

In accordance with Art. 83 of The Revised Penal Code, as amended

by Sec. 25 of RA No. 7659, upon the finality of this Decision let the
records of this case be forthwith forwarded to the Office of the
President for the possible exercise of Her Excellency's pardoning
power. Costs against accused-appellants.
SO ORDERED.

G.R. No. 150762

January 20, 2006

COVERDALE ABARQUEZ, y EVANGELISTA, Petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review 1 assailing the 23 June 2000
Decision2 and the 7 November 2001 Resolution 3 of the Court of
Appeals in CA-G.R. CR No. 21450. The Court of Appeals affirmed the
30 September 1997 Decision4 of the Regional Trial Court of Manila,
Branch 50 ("trial court") in Criminal Cases Nos. 94-135055-56. The
trial court found Coverdale Abarquez y Evangelista ("Abarquez")
guilty beyond reasonable doubt as an accomplice in the crime of
homicide in Criminal Case No. 94-135055.
The Charge
The prosecution charged Abarquez with the crimes of homicide and
attempted homicide in two Informations,5 as follows:
Criminal Case No. 94-135055

The undersigned accuses COVERDALE ABARQUEZ Y EVANGELISTA

of the crime of HOMICIDE, committed as follows:
That on or about November 21, 1993, in the City of Manila,
Philippines, the said accused conspiring and confederating with one
ALBERTO ALMOJUELA Y VILLANUEVA, who has already been
charged for the same offense before the Regional Trial Court of
Manila, under Crim. Case No. 93-129891 and mutually helping each
other, did then and there willfully, unlawfully and feloniously with
intent to kill, attack, assault and use personal violence upon one
RICARDO QUEJONG Y BELLO, by then and there stabbing him twice
with a bladed weapon and hitting him with a gun at the back,
thereby inflicting upon the latter mortal wounds which were the
direct and immediate cause of his death thereafter.
CONTRARY TO LAW.6
Criminal Case No. 94-135056
The undersigned accuses COVERDALE ABARQUEZ Y EVANGELISTA
of the crime of ATTEMPTED HOMICIDE, committed as follows:
That on or about November 21, 1993, in the City of Manila,
Philippines, the said accused conspiring and confederating with one
ALBERTO ALMOJUELA Y VILLANUEVA, who has already been
charged for the same offense before the Regional Trial Court of
Manila under Crim. Case No. 93-129892 and mutually helping each
other, with intent to kill, did then and there wilfully, unlawfully and
feloniously commence the commission of the crime of homicide
directly by overt acts, to wit: by then and there holding one JOSE
BUENJIJO PAZ Y UMALI and stabbing him with a bladed weapon,
hitting him on the left arm, but the said accused did not perform all
the acts of execution which should have produced the crime of
homicide as a consequence, by reason of causes other than his
own spontaneous desistance, that is, the injury inflicted upon said
JOSE BUENJIJO PAZ Y UMALI is only slight and not fatal.
CONTRARY TO LAW.7
Abarquez entered a plea of not guilty to both charges. The cases
were tried jointly.
The Version of the Prosecution

On 21 November 1993 at 2:00 p.m., Jose Buenjijo Paz 8 ("Paz"),

Ricardo Quejong ("Quejong") and their friends were in the house of
one Boyet at 3342 San Jose St., Sta. Mesa, Manila. They were
drinking liquor in celebration of the birthday of Boyets son. About
7:45 p.m., Paz and Quejong decided to go home. Boyet Tong,
Abarquezs son Bardie and Sonito Masula ("Masula") joined Paz and
Quejong. They proceeded towards the exit of San Jose St.
Meanwhile, about six or seven meters away from Boyets house,
Alberto Almojuela also known as Bitoy ("Almojuela"), a certain Ising
and Abarquez also known as Dale, were likewise drinking liquor in
front of Almojuelas house. As the group of Paz was passing towards
the main road, Almojuela and his companions blocked their path.
Almojuela asked Paz, "Are you brave?" Paz replied, "Why?"
Almojuela got angry and attacked Paz with a knife. Paz parried the
attack with his left arm but sustained an injury. Abarquez held Paz
on both shoulders while Bardie pacified Almojuela. Paz asked
Abarquez, "What is our atraso, we were going home, why did you
block our way?" Abarquez answered, "Masyado kang matapang.
Tumigil ka na, tumigil ka na."
Almojuela then confronted Quejong and they had an altercation,
followed by a scuffle. Paz tried to get away from Abarquez who
continued restraining him. Upon seeing Almojuela and Quejong fall
on the ground, Paz struggled to free himself from Abarquez. Paz
approached Quejong and found him already bloodied. It turned out
the Almojuela stabbed Quejong with a knife. Paz tried to pull up
Quejong but failed. Paz left Quejong and ran instead towards the
exit of San Jose St. to ask for help. While Paz was running away, he
heard Abarquez shout, "You left your companion already wounded!"
When Paz and his companions returned, they found Quejong still on
the ground. Almojuela and Abarquez were still in the area. Paz and
his companions brought Quejong to the UST Hospital. They next
proceeded to Police Precinct No. 4 to report the incident. However,
there was nobody in the precinct. With Kagawad Villanio Usorio, Paz
went to the WPD General Headquarters to report the incident. At
the WPD General Headquarters, they learned that Quejong died at
the UST Hospital. Paz then had his injury treated by Dr. Vic
Managuelod at Jose Reyes Memorial Hospital. The medico-legal
certificate showed that Paz sustained a 3-cm. lacerated wound on
his left forearm.

About 9:15 p.m., while SPO1 Danilo Vidad ("SPO1 Vidad") was at
the WPD Homicide Division, his station received a call from the UST
Hospital informing them of the death of Quejong. SPO1 Vidad and
PO3 Ed Co went to the UST Hospital morgue and investigated the
incident. They learned that Almojuela, assisted by Abarquez,
stabbed Quejong. Upon the execution of sworn statements by Paz
and Masula, SPO1 Vidad booked Almojuela and Abarquez for
homicide and frustrated homicide and prepared the referral letter
to the inquest prosecutor.
Abarquez voluntarily appeared at the police station. Almojuela
voluntarily surrendered to one SPO4 Soriano at Police Station No.
10 and was turned over to the WPD Homicide Division.
Dr. Antonio Rebosa9 ("Dr. Rebosa"), a medico-legal consultant at
UST Hospital, conducted the post-mortem examination and autopsy
on Quejong. Dr. Rebosa reported that Quejong sustained two stab
wounds and suffered from massive hemorrhage due to penetrating
stab wounds to the heart and left lung. According to Dr. Rebosa, a
sharp instrument probably caused the wound. Dr. Rebosa also
reported that Quejong sustained abrasions and contusions on the
right upper body, the wrist and on the lower extremities.
The Version of the Defense
Abarquez countered that on 21 November 1993, he was in his
residence at 3363 San Jose St., Sta. Mesa, Manila. About 7:30 p.m.,
Almojuelas wife informed him that the group of Paz was
challenging Almojuela to a fistfight. Abarquez, being a barangay
kagawad, proceeded to Almojuelas house. Almojuelas house was
about twenty meters away from Abarquezs house. When he
arrived at Almojuelas house, Abarquez saw Almojuela on the
ground being strangled by Quejong. Paz was holding Almojuelas
waist and boxing him at the stomach. Masula was near Almojuelas
head holding a piece of stone as if waiting for a chance to hit him.
Abarquez shouted at the group to stop. The group did not heed
Abarquez, forcing him to fire a warning shot into the air. Still, the
group did not heed Abarquez who then fired a second warning shot.
Paz, Quejong, and Masula scampered away.
Almojuela told Abarquez that he was merely trying to stop the
group of Paz from smoking marijuana. Almojuela then went inside
his house while Abarquez went home. On his way home, Abarquez
met the Chief Tanod of the barangay and two kagawads. Kagawad
Rudy Lego ("Lego") advised him to report the incident to the police.

They all proceeded to Precinct No. 4 where Lego reported the

incident to the desk officer. The desk officer told them that a person
had been stabbed. When Abarquez reached their house, he saw
policemen and media men with their barangay chairman. He
informed them that he had just reported the incident. Upon the
request of SPO1 Vidad, Abarquez then went to the police station to
shed light on the incident.
Almojuela testified that he was inside his house when his daughter
informed him that there was marijuana smoke coming to their
window. He went outside to look for the source of the smoke and
saw Quejong, Paz, and Masula smoking marijuana. Almojuela asked
the group to move away as there were children inside the house.
He was on his way back to the house when Quejong tried to
strangle him. Later, Almojuela heard a gunshot. He also heard
Abarquez shouting, "Tumigil na kayo." Quejong, Masula, and Paz
ran away.
Winfred Evangelista10 ("Evangelista") testified that he was resting in
front of his house when he heard a commotion. He noticed that Paz
and Quejong were quarreling. Evangelista saw Paz kicking
Almojuela. Abarquez arrived to break up the fight but he was told
not to interfere. Abarquez was forced to fire a warning shot and the
persons involved in the commotion ran away.
The Ruling of the Trial Court
In its Decision11 dated 30 September 1997, the trial court found
Abarquez guilty as an accomplice in the crime of homicide. The trial
court held that the prosecution failed to prove that Abarquez was a
co-conspirator of Almojuela in the killing of Quejong. Hence,
Abarquez could not be convicted as a principal in the crime of
homicide. However, the trial court ruled that Abarquez, in holding
and restraining Paz, prevented the latter from helping Quejong and
allowed Almojuela to pursue his criminal act without resistance.
The dispositive portion of the trial courts Decision reads:
WHEREFORE, in Criminal Case No. 94-135055, this Court finds the
accused, Coverdale Abarquez, guilty beyond reasonable doubt of
the crime of homicide only as accomplice and hereby sentences
him to suffer an indeterminate penalty ranging from six (6) years of
prision correccional to ten (10) years of prision mayor. In Criminal
Case No. 94-135056, the accused is hereby acquitted.

With costs de oficio.

SO ORDERED.12
Abarquez appealed the trial courts Decision before the Court of
Appeals.

The rule is that the trial court is in the best position to determine
the value and weight of the testimony of a witness. The exception
is if the trial court failed to consider certain facts of substance and
value, which if considered, might affect the result of the case. 16 This
case is an exception to the rule.
Concurrence in Criminal Design

13

In its Decision of 23 June 2000, the Court of Appeals affirmed the

trial courts Decision. The Court of Appeals sustained the trial court
in giving more credence to the testimony of Paz. The Court of
Appeals held that the prosecution was able to establish that
Abarquez aided Almojuela in fatally stabbing Quejong. The Court of
Appeals rejected Abarquezs allegation that he was merely at the
crime scene to pacify the quarreling parties.
In its 7 November 2001 Resolution, 14 the Court of Appeals denied
Abarquezs motion for reconsideration.
Hence, the petition before this Court.
The Issues
The issues15 Abarquez raises before the Court may be summarized
as follows:
1. Whether the prosecution was able to establish the guilt of
the accused beyond reasonable doubt;
2. Whether the trial court and the Court of Appeals erred in
giving more credence to the testimony of the prosecution
witnesses.
Abarquez alleges that the prosecutions evidence does not satisfy
the test of moral certainty and is not sufficient to support his
conviction as an accomplice. He further alleges that there was a
misapprehension of facts and that the trial court and the Court of
Appeals reached their conclusion based entirely on speculation,
surmises and conjectures. Abarquez also assails the credibility of
the witnesses against him.
The Ruling of This Court
The petition is meritorious.

Article 18 of the Revised Penal Code defines accomplices as "those

persons who, not being included in Article 17, cooperate in the
execution of the offense by previous or simultaneous acts." 17
Two elements must concur before a person becomes liable as an
accomplice: (1) community of design, which means that the
accomplice knows of, and concurs with, the criminal design of the
principal by direct participation; and (2) the performance by the
accomplice of previous or simultaneous acts that are not
indispensable to the commission of the crime. 18 Mere commission
of an act, which aids the perpetrator, is not enough. 19 Thus:
The cooperation that the law punishes is the assistance knowingly
rendered, which cannot exist without the previous cognizance of
the criminal act intended to be executed. It is therefore required in
order to be liable as an accomplice, that the accused must unite
with the criminal design of the principal by direct participation. 20
Indeed, in one case, the Court ruled that the mere presence of the
accused at the crime scene cannot be interpreted to mean that he
committed the crime charged.21
Here, in convicting Abarquez, the trial court and the Court of
Appeals relied mainly on the testimony of Paz. Paz testified that he
was held by Abarquez on the shoulders, thus preventing him from
helping Quejong who was grappling with Almojuela. Paz testified:
q. And what happened in the exchange of words or altercations
between Bitoy and Ricardo Quejong?
a. They grappled with each other, sir.
q. When Bitoy and Ricardo grappled with each other, what did you
do, if any?
a. I was intending to help Ricky but I was held back by Dale, sir.

q. And how this Dale hold you?

a. He held my two shoulders, sir.

"Pinagalitan kayo", in what way or manner did Dale Abarquez

reprimanded you? (sic)
a. You Jose is too brave, sir. (sic)22

PROSECUTOR F. G. SUPNET:
xxx xxx xxx
I would like to make it of record demonstrated being held by the
accused holding both shoulders, your Honor.
q. Now, when this Dale Abarquez held both on your shoulders, what
happened next, if any?

q. You said you were first attacked by Bitoy, is that correct?

a. Yes, sir.

a. He got angry scolding us. While scolding me the two

q. After Bitoy pacified Bardy Abarquez, he went after Ricky

Quejong, is it not?23

who were grappling each other walking away, sir. (sic)

a. They were just arguing, sir.

q. Now, you said Bitoy and Ricky were moving, what happened in
the course of grappling, if any?

[q.] And it was during that time when you were held in both
shoulders by the accused [C]overdale Abarquez?

You testified that Ricky and Bitoy were grappling each other, what
happened in the course of grappling? (sic)

a. Yes, sir.
q. and that Coverdale Abarquez was infront of you, is it not?

a. They fell to the ground, sir.

q. After that what happened next, if any?
a. When I saw them fall I struggle and I was able to release from
the hold of Dale and I approach the two. I saw Ricky blooded so I
was trying to pull him, sir. (sic)
q. You said you saw Ricky blooded, why was he blooded? (sic)

a. Yes, sir on my side.

q. And he was holding your shoulder to pacify you and Bitoy from
further quarrelling you, is it not?
a. That is not the way of pacifying, sir.
q. How can you demonstrate how you were held on the shoulder by
Abarquez?

a. He was stabbed by Bitoy, sir.

q. And did you see what instrument did Bitoy used in stabbing
Ricky or Ricardo? (sic)
a. It was a knife, sir. (Witness indicating a length about 6 inches
including the handle).
q. Now, you said also that while the two were grappling while you
were trying to free yourself from the hold Dale Abarquez,

ATTY. GASCON:
Make I make it of record your Honor that the interpreter act as the
witness while the witness act as the accused demonstrating holding
both hands of interpreter preventing the witness and saying Joey
tumigil ka na, joey tumigil ka na.
COURT:

q. How many times?

The accused told you Joey tumigil ka na, Joey tumigil ka na because
you were trying to attack Bitoy, is it not?

grappling with Quejong at that time. Paz interpreted Abarquezs

action as an attempt to prevent him from helping Quejong. His
interpretation was adopted by the trial court and sustained by the
Court of Appeals. Yet, in his testimony, Paz admitted that while
restraining him, Abarquez was scolding or reprimanding him and
telling him to stop. It was not shown that Abarquez was stopping
Paz from helping Almojuela. It is more likely that Abarquez was
trying to stop Paz from joining the fight. Abarquezs act of trying to
stop Paz does not translate to assistance to Almojuela.

a. How can I be charged, he was the one holding the knife, sir. (sic)

In People v. Fabros,

q. So what was the reason why the accused restrained you and told
you Joey tumigal ka na, Joey tumigil ka na. What would be the
reason?

To be deemed an accomplice, one needs to have had both

knowledge of and participation in the criminal act. In other words,
the principal and the accomplice must have acted in conjunction
and directed their efforts to the same end. Thus, it is essential that
both were united in their criminal design.

a. Twice, Your Honor.

ATTY. GASCON:

a. While I was just talking to Bitoy, when he told me to stop.

COURT:
Does the Court get from you that you are trying to explain to Bitoy
when the accused tried to hold you and prevent you?
a. Yes, sir.
q. That is why the reason you concluded that the accused is not
pacifying you but to stop you from helping the victim?
a. Yes, sir.
xxx xxx xxx
q. The only word that the accused [C]overdale Abarquez uttered
was Joey, tumigil ka na, Joey tumigil ka na, is it not?
a. He uttered that you are MATAPANG, Joey tumigil ka na, Joey
tumigil ka na.24
Pazs testimony does not show that Abarquez concurred with
Almojuelas criminal design. "Tumigil" literally means "stop."
Clearly, Abarquez was trying to stop Paz from joining the fray, not
from helping Quejong. Paz claims that he was only trying to talk to
Almojuela. However, Paz could not have been merely talking to
Almojuela, as he tried to portray, because Almojuela was already

25

the Court explained:

xxx. The mere fact that the (accused) had prior knowledge of the
(principals) criminal design did not automatically make him an
accomplice. This circumstance, by itself, did not show his
concurrence in the principals criminal intent.
Paz stated that Abarquez did not do anything to stop Almojuela.
However, Paz testified that Abarquezs son Bardie, who was one of
Pazs companions, was the one trying to pacify Almojuela. The trial
court in its factual findings confirmed this when it stated that while
Abarquez was holding Paz, his son Bardie was pacifying Almojuela. 26
The prosecution argues that Abarquez was remiss in his duties as a
barangay kagawad in not extending assistance to the then
wounded Quejong. This, however, does not necessarily show
concurrence in Almojuelas criminal act. When Paz ran away,
Abarquez shouted at him that he left his wounded companion.
Apparently, Abarquez was not aware of the extent of Quejongs
injury and he expected Paz to look after his own companion.
When there is doubt on the guilt of an accused, the doubt should
be resolved in his favor. Thus:
Every person accused has the right to be presumed innocent until
the contrary is proven beyond reasonable doubt. The presumption
of innocence stands as a fundamental principle of both
constitutional and criminal law. Thus, the prosecution has the

burden of proving every single fact establishing guilt. Every vestige

of doubt having a rational basis must be removed. The defense of
the accused, even if weak, is no reason to convict. Within this
framework, the prosecution must prove its case beyond any hint of
uncertainty. The defense need not even speak at all. The
presumption of innocence is more than sufficient.27
We apply in this case the equipoise rule. Where the evidence on an
issue of fact is in issue or there is doubt on which side the evidence
preponderates, the party having the burden of proof loses.28 Hence:
xxx The equipoise rule finds application if, as in this case, the
inculpatory facts and circumstances are capable of two or more
explanations, one of which is consistent with the innocence of the
accused and the other consistent with his guilt, for then the
evidence does not fulfill the test of moral certainty, and does not
suffice to produce a conviction. Briefly stated, the needed quantum
of proof to convict the accused of the crime charged is found
lacking.29
WHEREFORE, we GRANT the petition. We SET ASIDE the 23 June
2000 Decision and 7 November 2001 Resolution of the Court of
Appeals in CA-G.R. CR No. 21450, which affirmed the 30 September
1997 Decision of the Regional Trial Court of Manila, Branch 50 in
Criminal Cases Nos. 94-135055-56. We ACQUIT Coverdale Abarquez
y Evangelista as an accomplice in the crime of homicide in Criminal
Case No. 94-135055. No pronouncement as to costs.
SO ORDERED.

G.R. No. 166401

October 30, 2006
[Formerly G.R. Nos. 158660-67]
PEOPLE OF THE PHILIPPINES, appellee,
vs.
ALFREDO BON, appellant.
DECISION
TINGA, J.:
Two critical issues emerge in this case. The first relates to whether
the Court should affirm the conviction of appellant Alfredo Bon
(appellant) for six counts of rape and two counts of attempted rape,
the victims being his then-minor nieces. On that score, we
affirm. As a consequence though, we are ultimately impelled
to confront a question much broader in both scope and
import. While the Court had previously declined to
acknowledge the constitutional abolition of the death
penalty through the 1987 Constitution,1 we now find it
necessary to determine whether the enactment of Republic Act No.
9346 resulted in the statutory interdiction of the death penalty.
The second issue arises as we are compelled to review the
maximum term of reclusion temporal in the sentence imposed on
appellant by the Court of Appeals for the two counts of attempted
rape. The sentence was prescribed by the appellate court prior to
the enactment of Republic Act No. 9346 which ended the imposition
of the death penalty in the Philippines. The proximate concern as to
appellant is whether his penalty for attempted qualified rape, which
under the penal law should be two degrees lower than that of
consummated qualified rape, should be computed from death
or reclusion perpetua.
First, the antecedent facts.
I.
2

Eight (8) Informations were filed within the period from 21 August
2000 to 23 February 2001 by the Assistant Provincial Prosecutor of

Gumaca, Quezon against appellant, charging him with the rape of

AAA3 and BBB,4 the daughters of his older brother. Appellant was
accused of raping AAA in Criminal Case Nos. 6899-G, 6902-G,
6906-G, and 6908-G; while he was accused of raping BBB in
Criminal Case Nos. 6689-G, 6903-G, 6905-G, and 6907-G. 5 All these
cases were consolidated for trial. The rapes were alleged to have
been committed in several instances over a span of six (6) years.
Both AAA and BBB testified against appellant, their uncle, and both
identified him as the man who had raped them. During trial, their
respective birth certificates and the medical certificates executed
by the doctor who physically examined them were entered as
documentary evidence.
AAA testified that she was only six (6) years old when she was first
molested in 1994 in the house appellant had shared with her
grandmother.6 She recounted that the incident took place when she
and appellant were alone in the house. Appellant touched her
thighs and vagina, removed her clothes and inserted his penis into
her vagina. Appellant threatened that she and her parents would be
killed should she disclose the incident to anyone. She thereafter
stopped sleeping in the house of her grandmother. It was only three
(3) years after, in 1997, that she slept in the said house, yet again
she was sexually abused by appellant. She was then nine (9) years
old.7
AAA recounted that at age eleven (11) in 1999, she was raped by
appellant for the third time, again at the house of her
grandmother.8 The following year, when she was twelve (12), she
was abused for the fourth time by appellant. This time, she was
raped in an outdoor clearing9 after having been invited there by
appellant to get some vegetables. While at the clearing, appellant
forced her to lie down on a grassy spot and tried to insert his penis
in her vagina. As she cried in pain, appellant allegedly stopped. 10
It was only on 12 June 2000 that she decided to reveal to her
mother, CCC,11 the brutish acts appellant had done to her. 12 Her
mother thus filed a complaint against her uncle. AAA identified
appellant in open court and presented as documentary evidence
her birth certificate to prove that she was born on 3 September
1988.13
BBB, on the other hand, testified that she was first raped by
appellant in 1997 when she was ten (10) years old, also at the
house appellant shared with her grandmother. While alone in the

house, appellant poked a knife at her, removed her clothes and

inserted his penis in her vagina. Despite the pain she felt, she could
not resist appellant as he was holding a knife. She did not report
the rape to her parents out of fear of appellant's threat that he
would kill her.14 BBB further testified that in 1998 and 1999, she
was raped again by appellant on several occasions, the rapes
occurring under threat of a bladed weapon, and regardless of the
time of day.15
BBB stated that she was last raped by appellant on 15 January
2000.16 On that night, she was sleeping beside her sister AAA in the
house of her grandmother when she felt appellant touching her
body. She pushed him away but appellant pulled her three (3)
meters away from AAA towards the door. As appellant was holding
a knife, BBB could not make any noise to alert her sister. Appellant
ordered her to remove her clothes and forced her to lie down. After
he took off his clothes, appellant placed himself on top of BBB and
stayed there for three (3) minutes "moving up and down."
Thereafter, she put on her clothes and returned to where her sister
was. She added that although it was dark, she knew it was
appellant who had molested her as she was familiar with his smell.
Since then, she never slept in her grandmother's house again. 17
It was on 14 June 2000 that BBB disclosed her harrowing
experience to her mother. Prior to that, however, she had already
revealed the sexual abuses she had underwent to her sister AAA.
Upon learning of the same, her mother brought her to the police
station and her statement was taken. Thereafter, she was brought
to the hospital to be examined. Furthermore, BBB explained that
she only reported the abuses done to her on 14 June 2000 or five
(5) months after the last rape because she was afraid of appellant's
threat of killing her and her family.18
The third witness for the prosecution was the mother, CCC. She
testified that she only knew of the abuses done on her daughters
on 15 June 2000. Five months earlier, CCC became concerned after
observing that BBB, on the pretext of preparing clothes for a game,
was packing more than enough clothes. She asked her other
daughter, DDD, to dig into the matter and the latter told her that
BBB was planning to leave their house. Upon learning this, she sent
somebody to retrieve BBB. However, it was only five months after
that incident that BBB confided to her mother that she was raped
by appellant. CCC lost no time in reporting the matter to the
authorities and had BBB and AAA examined in the hospital. After

examination, it was confirmed that BBB was indeed sexually

molested.19
CCC initially did not tell her husband about what had happened to
their daughters because she was afraid that her husband might kill
appellant. It was only after appellant was arrested that she
disclosed such fact to her husband. After the arrest of appellant, his
relatives became angry at CCC, and her mother-in-law avoided
talking to her since then.20
The physician who examined BBB and AAA also testified for the
prosecution. Dr. Purita T. Tullas (Dr. Tullas), medical officer of
Gumaca District Hospital, testified that she was the one who
examined BBB and AAA, and thereafter, issued medical certificates
for each child. These medical certificates were presented in court. 21
The medical certificate of BBB revealed that at the time of
examination, there were no external sign of physical injury found
on her body. However, Dr. Tullas found that the labia
majora and minora of BBB was slightly gaping, her vaginal orifice
was admitting two fingers without resistance and there were
hymenal lacerations at "three (3) o'clock" and "eight (8) o'clock"
which might have happened a long time before her examination.
Dr. Tullas concluded that there might have been sexual penetration
caused by a male sex organ for several times.22
AAA's medical certificate stated that at the time of examination,
there were no external physical injuries apparent on her body.
AAA's labia majora and minora were well coaptated and the hymen
was still intact. On direct examination, Dr. Tullas said that it could
happen that the hymen would still be intact despite sexual
penetration with a person having an elastic hymen. On the other
hand, when asked on cross-examination, she stated that there was
also the possibility that no foreign body touched the labia of the
pudendum of AAA.23
Only appellant testified for his defense, offering denial and alibi as
his defense. He averred in court that from 1994 to 2000, he lived in
the house of his parents which was about "thirty (30) arm
stretches" away from the house of BBB and AAA. He denied having
raped BBB on 15 January 2000 because on said date he was at the
house of his sister, two (2) kilometers away from the house of his
parents where the rape occurred, from 11:30 in the morning and
stayed there until early morning of the following day. 24

He offered a general denial of the other charges against him by

BBB and AAA. He claimed that he seldom saw the two minors. He
further asserted that prior to the institution of the criminal case
against him he had a smooth relationship with his nieces and the
only reason the case was filed against him was that CCC, his sisterin-law and the mother of his nieces, harbored ill-feelings towards
his deceased father, who would call CCC "lazy" within earshot of
other family members.25
The RTC convicted appellant on all eight (8) counts of rape. 26 The
RTC pronounced appellant's defense of denial and alibi as
unconvincing, citing jurisprudence declaring denial and alibi as
intrinsically weak defenses. The RTC concluded that appellant failed
to controvert the clear, candid and straightforward testimonies of
his nieces. It further considered the qualifying circumstances of
minority of the victims and the relationship of the victims and
appellant, the latter being the former's relative by consanguinity
within the third degree.
As the penalty imposed consisted of eight (8) death sentences, the
records of the case were automatically elevated to this Court for
review. However, in the aftermath of the pronouncement of the
Court in People v. Mateo27 the present case was transferred to the
Court of Appeals for appropriate action and disposition.
On 29 December 2004, the Court of Appeals agreed with the
rulings of the RTC in regard to six (6) of the eight (8) death
sentences imposed on appellant. 28 The appellate court ratiocinated,
thus:
We have painstakingly gone over the record of these cases
and find no cogent reason to deviate from the findings of
the trial court except in at least two (2) cases. The
prosecution's case which was anchored mainly on the
testimonies of private complainants [BBB] and [AAA],
deserve full faith and credit for being clear, precise and
straightforward. Like the trial court, We find no reason to
disbelieve the private complainants. It was established with
certitude that the accused on several occasions sexually
assaulted his nieces. The perpetration of the crimes and its
authorship were proved by the victims' candid and
unwavering testimonies both of whom had the misfortune of
sharing the same fate in the hands of their own uncle. The
sincerity of [AAA] was made more evident when she cried

on the witness stand in obvious distress over what their

uncle had done to her and her sister.29
The Court of Appeals downgraded the convictions in Criminal Case
Nos. 6906 and 6908 to attempted rape. In these two (2) cases, it
was alleged that appellant had raped AAA in 1999 and on 11 June
2000, respectively. According to the appellate court, it could not
find evidence beyond reasonable doubt in those two (2) cases that
appellant had accomplished the slightest penetration of AAA's
vagina to make him liable for consummated rape. It stressed that
there was not even moral certainty that appellant's penis ever
touched the labia of the pudendum, quoting portions of the
transcript of the stenographic notes where AAA was asked if
appellant was then successful in inserting his penis into her vagina
and she answered in the negative. 30 Accordingly, the Court of
Appeals reduced the penalties attached to the two (2) counts of
rape from death for consummated qualified rape to an
indeterminate penalty of ten (10) years of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion
temporal, as maximum, for attempted rape.
Appellant, in his Supplemental Brief31 before this Court, assails the
findings of the Court of Appeals. He cites inconsistencies in the
testimony of BBB as to what really transpired on 15 January 2000.
Particularly, appellant observes that BBB testified on 6 June 2001
as to her rape on 15 January 2000. BBB, her sister and appellant
had been sleeping side by side. However, when BBB again testified
on 3 July 2002, this time she stated that on that night, as she and
her sister AAA were sleeping in their room at their parents' house
(and not at her grandmother's), the accused passed through a
window, entered their room and raped her again. 32 Appellant also
latches on the inconsistencies in BBB's testimony as to the length
of the duration of her rape on that day. In BBB's testimony on 6
June 2001, she said that appellant was atop her for three (3)
minutes while in the 3 July 2002 hearing, BBB stated that the rape
lasted for only half a minute.
It must be observed though that BBB was at a tender age when she
was raped in 2001. Moreover, these inconsistencies, which the RTC
and the Court of Appeals did not consider material, were elicited
while BBB was testifying in open court. Our observations in People
v. Perez33 on the appreciation of alleged inconsistencies in the
testimony of rape victims who happen to be minors are instructive,
thus:

We note that these alleged inconsistencies refer, at best,

only to trivial, minor, and insignificant details.They bear no
materiality to the commission of the crime of rape of
which accused-appellant was convicted.[34] As pointed
out by the Solicitor General in the Appellee's Brief, the
seeming inconsistencies were brought about by confusion
and merely represent minor lapses during the rape victim's
direct examination and cannot possibly affect her credibility.
Minor lapses are to be expected when a person is recounting
details of a traumatic experience too painful to recall. The
rape victim was testifying in open court, in the presence of
strangers, on an extremely intimate matter, which, more
often than not, is talked about in hushed tones. Under such
circumstances, it is not surprising that her narration was
less than letter-perfect.[35] "Moreover, the inconsistency
may be attributed to the well-known fact that a courtroom
atmosphere can affect the accuracy of testimony and the
manner in which a witness answers questions."[ 36]37
Further, the public prosecutor offered a convincing explanation on
why BBB was confused on some points of her two testimonies.
Particularly in the Memorandum for the People 38 filed with the RTC,
the public prosecutor creditably explained the inconsistencies,
thus:
[BBB]'s testimony on July 3, 2002 might be contradictory to
her first testimony on June 6, 2001, with respect to the last
rape on January 15, 2000, as regards the place of
commissionhouse of her parents or house of accused; and
the length of time he stayed on her top 3 minutes or halfminute. But she remained consistent in her declaration that
on January 15, 2000, her uncle inserted his penis into her
vagina, and he was moving while on her top then she felt
something came out from him. He was able to rape her
because he threatened her with a knife or bladed weapon.
Further, the first she took the witness stand on June 6, 2001,
she was made to recall the last rape, the first rape and
many acts of sexual abuses [sic] against her. She was even
confused about her age when she was first raped by her
uncle. After she testified on November 14, 2001, for the
separate charges of rapes in 1997, 1998 and 1999, she was
able to recall more clearly the last rape on January 15, 2000,
which happened in her own house. These noted
discrepancies as to the exact place of commission
accused's house or victim's house is not an essential

element of the crime of rape and both houses are situated in

Brgy. Villa Padua Ilaya, Gumaca, Quezon, which is within the
territorial jurisdiction of this Honorable Court. x x x 39
In addition, we share the lower court's disbelief of appellant's
proffered defenses of denial and alibi. These two defenses are
inherently the weakest as they are negative defenses. Mere denials
of involvement in a crime cannot take precedence over the positive
testimony of the offended party. For alibi to prosper, it is not
enough for the defendant to prove that he was somewhere else
when the crime was committed; he must likewise demonstrate that
it is physically impossible for him to have been at the scene of the
crime at the time.40
In the case at bar, appellant's alibi that he was at his sister's house
barely two (2) kilometers away when the rape took place on 15
January 2000 cannot be given credence by this Court. If we are to
thread this line of reasoning, appellant could have easily left his
sister's house in the middle of the night, raped BBB, and then
returned to his sister's house without much difficulty and without
anybody noticing his absence.
Well-settled is the rule that a categorical and positive identification
of an accused, without any showing of ill-motive on the part of the
eyewitness testifying on the matter, prevails over alibi and
denial.41 The defenses of denial and alibi deserve scant
consideration when the prosecution has strong, clear and
convincing evidence identifying appellant as the perpetrator. 42 In
this case, both BBB and AAA, minors and relatives of appellant,
positively identified him as their rapist in open court. The lower
courts found no issue detracting from the credibility of such
identification.
It is worthy to note that the alibi presented by appellant is limited
to the 15 January 2000 rape of BBB. He offers nothing to counteract
the accusations against him involving the seven (7) other specific
acts of rape other than the averment that he did not know anything
about the allegations propounded on him, an infinitesimal defense
considering the evidence against him.
Appellant does claim that the present case was merely instituted
because of the grudge of CCC towards his deceased father. It is
outrageous to even suggest that a mother will subject her
daughters to the humiliating experience of coming before the court
and narrating their harrowing experience just because she was

tagged by her father-in-law as lazy. In addition, CCC's father-in-law

had died several years before the criminal charges against
appellant were ever instituted. If CCC truly wanted to retaliate and
damage the reputation of her father-in-law, she could have done so
when the latter was still alive. No member of a rape victim's family
would dare encourage the victim to publicly expose the dishonor of
the family, more specifically if such accusation is against a member
of the family, unless the crime was in fact committed. 43

does not yield to the perverse impulses of the accused, something

would happen to her at the moment, or even thereafter, as when
she is threatened with death if she would report the incident. 46

Besides, no sane woman, least of all a child, would concoct a story

of defloration, allow an examination of her private parts and subject
herself to public trial or ridicule if she has not in truth, been a
victim of rape and impelled to seek justice for the wrong done to
her. Testimonies of child-victims are normally given full weight and
credit, since when a woman, more so if she is a minor, says that
she has been raped, she says in effect all that is necessary to show
that rape has been committed. Youth and immaturity are generally
badges of truth and sincerity. 44 The weight of such testimonies may
be countered by physical evidence to the contrary, or indubitable
proof that the accused could not have committed the rape, but in
the absence of such countervailing proof, these testimonies shall
be accorded utmost value.

It is to be noted that there is an attempt to commit rape when the

offender commences its commission directly by overt acts but does
not perform all acts of execution which should produce the felony
by reason of some cause or accident other than his own
spontaneous desistance.47 In Criminal Case No. 6906-G, the records
show that there was no penetration or any indication that the penis
of appellant touched the labia of the pudendum of AAA. This was
evident in AAA's testimony at the hearing on 17 October 2001, to
wit:

The twin aggravating circumstances of minority and relationship

were properly appreciated in this case. The minority of the victims
and their relationship with appellant were aptly established

At the same time, we agree with the Court of Appeals that the two
counts of rape in Criminal Case Nos. 6906-G and 6908-G were not
proven beyond reasonable doubt, but only the two separate
incidents of attempted rape.

Q Do you remember of any unusual incident that

happened to you when you were eleven years old?
A Yes, Mam. [sic]
Q What was that?

in the lower court proceedings. Not only did the prosecution allege
in the Informations the ages of the victims when they were raped
but the prosecution also presented the birth certificates of BBB and
AAA in court as documentary evidence to prove that they were
both minors when appellant raped them. Appellant, in open court,
also admitted that that he was the uncle of both victims being the
brother of the victims' father, and thus, a relative of the victims
within the third degree of consanguinity.

A He also touched my vagina and my other private parts

and he inserted also his penis (into) my vagina. [sic]

Furthermore, the delay in reporting the repulsive acts of appellant

to BBB and AAA is understandably justified, considering that
appellant repeatedly threatened to kill them and their family should
they disclose the incidents to anyone. It has been held time and
again that delay in revealing the commission of rape is not an
indication of a fabricated charge. 45 Such intimidation must be
viewed in light of the victim's perception and judgment at the time
of the commission of the crime and not by any hard and fast rule. It
is enough that the intimidation produces a fear that if the victim

A It was painful, Mam. [sic]

Q Was he able to insert his penis into your vagina?

A No, Mam. [sic]
Q Why?

xxxx
Q How many times did he try to insert his penis into your
vagina?
A Many times, Mam.48 [sic]

AAA also testified in the same vein in Criminal Case No. 6908-G.
Q I am now through with Criminal Case No. 6906-G. In
Criminal Case No. 6908-G, also for Rape. When was the last
time that this sexual abuse was committed by your Uncle?
A June 11, Mam. [sic]
Q What year?
A June 11, 2000, Mam. [sic]
xxxx
Q What did your Uncle do to you on June 11, 2000?
A He also removed my clothes, Mam. [sic]
Q And after removing your clothes, what did he do to you?
A He was trying to insert his penis into my vagina, Mam.
[sic]
xxxx
Q And what did you feel when he was trying to insert his
penis in your vagina?
A Painful, Mam. [sic]
Q And what did you do when you feel painful?
A I cried, Mam. [sic]
Q When you cried, what did your Uncle do, if any?
A He did not pursue what he was doing, Mam. [sic]
xxxx
Q And your Uncle was not able to penetrate his penis to
your vagina?

A No, Mam.49 [sic]

In downgrading the offense committed
decreasing the penalty, the CA declared:

and

consequently

It is carnal knowledge, not pain, that is the element to

consummate rape. Indeed pain may be deduced from the
sexual act but accused cannot be convicted of rape by
presuming carnal knowledge out of pain. It is well-settled
that complete penetration of the penis into the vagina is not
necessary to convict for consummated rape since the
slightest penetration of one into the other will suffice.
However, in People v. Campuhan, the term "slightest
penetration" was clarified to mean that there must be
sufficient and convincing proof of the penis indeed touching
at the very least the labias of the female organ. Mere
epidermal contact between the penis and the external layer
of the victim's vagina (the stroking and the grazing of the
male organ upon the female organ or the mons pubis)
categorizes the crime as attempted rape or acts of
lasciviousness. There must be positive proof of even the
slightest penetration, more accurately, the touching of the
labias by the penis, before rape could be deemed
consummated. We, therefore, take exception to the finding
of the trial court that when the accused was trying to insert
his penis into the child's vagina, the act proved painful to
[AAA,] which made the accused stop from further executing
the act. From the testimony of private complainant, [AAA] in
the afore-numbered cases, the prosecution failed to
demonstrate beyond any shadow of doubt that accusedappellant's penis reached the labia of the pudendum of
AAA's vagina. There is no basis then to apply the rule that
the introduction of the penis into the aperture of the female
organ (thereby touching the labia of the pudendum) already
consummates the case of rape. x x x 50
It should be added that under Article 6 of the Revised Penal Code,
there is an attempt when the offender commences the commission
of a felony directly by overt acts, and does not perform all the acts
of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance. In
the crime of rape, penetration is an essential act of execution to
produce the felony. Thus, for there to be an attempted rape, the
accused must have commenced the act of penetrating his sexual
organ to the vagina of the victim but for some cause or accident

other than his own spontaneous desistance, the penetration,

however slight, is not completed.51

imposed upon the principals in an attempt to commit a

felony.54

The Court thus affirms the conclusions of the Court of Appeals that
it has been established beyond reasonable doubt that appellant is
guilty of six (6) counts of rape and two (2) counts of attempted
rape. However, in light of Rep. Act No. 9346, the appropriate
penalties for both crimes should be amended.

What is the penalty "lower by two degrees than that prescribed by

law" for attempted rape? Article 266-B of the Revised Penal Code,
which incorporates the amendments introduced by Rep. Act No.
8353, prescribes:
The death penalty shall also be imposed if the crime of rape
is
committed
with
any
of
the
following
aggravating/qualifying circumstances:

II.
We shall not dwell at length on the proper penalty imposable on
appellant for the six (6) counts of rape. The sentence of death
imposed by the RTC and affirmed by the Court of Appeals can no
longer be affirmed in view of Rep. Act No. 9346, titled "An Act
Prohibiting the Imposition of Death Penalty in the Philippines."
Section 2 of the law mandates that in lieu of the death penalty, the
penalty of reclusion perpetua shall be imposed. Correspondingly,
the Court can no longer uphold the death sentences imposed by
lower courts, but must, if the
guilt of the accused is affirmed, impose instead the penalty
of reclusion perpetua, or life imprisonment when appropriate. Since
the passage of Rep. Act No. 9346, the Court has had occasion to
effectuate such reduction in recent cases such as People v.
Tubongbanua52 and People v. Cabalquinto.53
III.
The question of what should be the appropriate penalty for the two
(2) counts of attempted rape proves to be the more challenging but
interesting question facing the Court.
The Court of Appeals had sentenced appellant, for the attempted
rape of AAA, to "an indeterminate penalty of ten (10) years
of prision mayor, as minimum, to seventeen (17) years and four (4)
months of reclusion temporal as maximum," for each count of
attempted rape. There is no doubt as to the validity of this
sentence at the time it was meted prior to the enactment of Rep.
Act No. 9346. Article 51 of the Revised Penal Code establishes the
penalty to be imposed upon the principals of an attempted felony:
ART. 51. xxx A penalty lower by two degrees than that
prescribed by law for the consummated felony shall be

1. When the victim is under eighteen (18) years of age and

the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common law spouse of the parent of the
victim. x x x55
The prescribed penalty for the consummated rape of a victim duly
proven to have been under eighteen years of age and to have been
raped by her uncle, is death under Article 266-B of the Revised
Penal Code. The determination of the penalty two degrees lower
than the death penalty entails the application of Articles 61 and 71
of the Revised Penal Code:
Art. 61. Rules of graduating penalties.For the purpose of
graduating the penalties which, according to the provisions
of Articles 50 to 57, inclusive, of this Code, are to be
imposed upon persons guilty as principals of any frustrated
or attempted felony, or as accomplices or accessories, the
following rules shall be observed:
1. When the penalty prescribed for the felony is single
indivisible, the penalty next lower in degree shall be
immediately following that indivisible penalty in
respective graduated scale prescribed in Article 71 of
Code.56

and
that
the
this

xxxx
Article 71 of the Revised Penal Code (Article 71) warrants special
attention, crucial as it is to our disposition of this question. The
provision reads:

Art. 71. Graduated scales. In the case in which the law

prescribes a penalty lower or higher by one or more degrees
than another given penalty, the rules prescribed in Article
61 shall be observed in graduating such penalty.
The lower or higher penalty shall be taken from the
graduated scale in which is comprised the given penalty:
The courts, in applying such lower or higher penalty, shall
observe the following graduated scales:
SCALE NO. 1
1. Death

sentence, the maximum term of which shall be that which, in view

of the attending circumstances, could be properly imposed under
the rules of the said Code, and the minimum which shall be within
the range of the penalty next lower to that prescribed by the Code
for the offense." The purpose of the prescription of minimum and
maximum periods under the Indeterminate Sentence Law is to
effect the privilege granted under the same law, for prisoners who
have served the minimum penalty to be eligible for parole per the
discretion of the Board of Indiscriminate Sentence. 58 Thus, convicts
sentenced to suffer death penalty or life-imprisonment are
ineligible under that law, as are persons sentenced to reclusion
perpetua, an indivisible penalty without minimum or maximum
periods.59

7. Destierro

Hence, the Court of Appeals sentenced appellant to suffer the

penalty for attempted rape, with a maximum penalty within the
range of reclusion temporal, and a minimum penalty within the
range of the penalty next lower, or prision mayor. If Rep. Act No.
9346 had not been enacted, the Court would have affirmed such
sentence without complication. However, the enactment of the law
has given rise to the problem concerning the imposable penalty.
Appellant was sentenced to a maximum term within reclusion
temporal since that is the penalty two degrees lower than death.
With the elimination of death as a penalty, does it follow that
appellant should now be sentenced to a penalty two degrees lower
than reclusion perpetua, the highest remaining penalty with the
enactment of Rep. Act No. 9346? If it so followed, appellant would
be sentenced to prision mayor in lieu of reclusion temporal.

8. Arresto menor

IV.

9. Public censure

Obviously, our ruling on the appropriate penalty on appellant for

attempted rape will affect not only appellant, but several classes of
convicts as well. Before we proceed with the discussion, the Court
finds it necessary to make the following qualification.

2. Reclusion perpetua
3. Reclusion temporal
4. Prision mayor
5. Prision correctional
6. Arresto mayor

10. Fine57
xxxx
Following the scale prescribed in Article 71, the penalty two
degrees lower than death is reclusion temporal, which was the
maximum penalty imposed by the Court of Appeals on appellant for
attempted rape. Reclusion temporal is a penalty comprised of three
divisible periods, a minimum, a medium and a maximum.
At the same time, the Indeterminate Sentence Law prescribes that
"the court shall sentence the accused to an indeterminate

Prior to the enactment of Rep. Act No. 9346, the death penalty was
imposable under two different frames of reference. This was
especially made clear with the 1993 amendments to the Revised
Penal Code through Rep. Act No. 7659, or the Death Penalty Law.
Under the Revised Penal Code, as amended, the death penalty was
provided for in two ways, namely: as the maximum penalty for
"reclusion perpetua to death," and death itself as an automatic and
exclusive penalty. Death as the automatic penalty was mandated
for the crimes of qualified bribery "if it is the public officer who asks

or demands such gift or present;"60 kidnapping or detention "for the

purpose of extorting ransom from the victim or any other
person;"61 destructive

the common-law spouse of

paragraph thereof provides:

There is no need for now to discuss the effects of Rep. Act No. 9346
on the penalties for frustrated and attempted felonies which were
punishable by "reclusion perpetua to death" if consummated, or on
accomplices and accessories to such felonies. Such situations do
not relate to the case of appellant, who was convicted of two (2)
counts of attempted rape, which, if consummated, of course would
have carried prior to the enactment of Rep. Act 9346 the penalty of
death, and not "reclusion perpetua to death."
The Court also recognizes that the graduation of penalties reckoned
from "reclusion perpetua to death" differs from that based on the
exclusive penalty of death. For example, it has been held that the
penalty two degrees lower than "reclusion perpetua to death"
is prision mayor.66 In contrast, the Court has likewise held that for
qualified rape in the attempted stage, "the penalty x x x two (2)
degrees lower than the imposable penalty of death for the offense
charged x x x is reclusion temporal." 67 In People v. Tolentino, 68 we
ruled that the accused, who had been sentenced to die for the rape
of his nine (9)-year old stepdaughter, was guilty only of attempted
rape. In explaining that "reclusion temporal" was the proper
penalty, the Court, through then Chief Justice Davide, explained:
Under Article 51 of the Revised Penal Code, the penalty for
an attempted felony is the "penalty lower by two degrees
than that prescribed by law for the consummated felony." In
this case, the penalty for the rape if it had been
consummated would have been death, pursuant to Article
335 of the Revised Penal Code, as amended by R.A. No.
7659, since [RT69] was eight years old and TOLENTINO was

mother.

The

last

The death penalty shall also be imposed if the crime

of rape is committed with any of the following
attendant circumstances:

arson wherein "death results;" 62 and rape qualified by any of the

several circumstances enumerated under the law.
On the other hand, the penalty of "reclusion perpetua to death"
was imposable on several crimes, including murder, 63 qualified
piracy,64 and treason.65 The imposition of the death penalty for
crimes punishable by "reclusion perpetua to death" depended on
the appreciation of the aggravating and mitigating circumstances
generally outlined in Articles 13 and 14 of the Revised Penal Code.
Reference to those two provisions was unnecessary if the penalty
imposed was death, as opposed to "reclusion perpetua to death."

[RT's]

1. When the victim is under eighteen (18) years of

age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law
spouse of the parent of the victim.
xxxx
The penalty in this case should have been reclusion
temporal, which is the penalty lower by two degrees than
death. However, with the application of the Indeterminate
Sentence Law, TOLENTINO may be sentenced to an
indeterminate imprisonment penalty whose minimum shall
be within the range of prision mayor and whose maximum
shall be within the range of reclusion temporal in its medium
period pursuant to Article 64 (1) of the Revised Penal Code.70
This dichotomy results from the application of Article 61 of the
Revised Penal Code. Both reclusion perpetua and death are
indivisible penalties. Under Article 61 (2) of the Revised Penal Code,
"[w]hen the penalty prescribed for the crime is composed of two
indivisible penalties the penalty next lower in degree shall be
that immediately following the lesser of the penalties prescribed in
the respective graduated scale." Hence, in passing sentence on
those convicted of attempted felonies which warranted the penalty
of "reclusion perpetua to death" if consummated, the Court has
consistently held that penalty two degrees lower than "reclusion
perpetua to death" is prision mayor. In contrast, if the penalty for
the consummated crime is the single indivisible penalty of death,
as was prescribed for several crimes under Rep. Act No. 7659,
Article 61(1) of the Revised Penal Code provides that "the penalty
prescribed for the felony is single and indivisible, the penalty next
lower in degree shall be that immediately following that indivisible
penalty in the respective graduated scale prescribed in Article 71".
Thus, the proper penalty two degrees lower than death is reclusion
temporal.

It is also for this reason that the controversy we are now addressing
did not similarly arise after the enactment of the 1987 Constitution,
which prohibits the imposition of the death penalty subject to its
subsequent readoption at the choice of Congress. Generally, the
highest penalty imposed under the Revised Penal Code was
"reclusion perpetua to death," a penalty composed of two
indivisible penalties. As a result, the Court had no occasion, after
the passage of the 1987 Constitution, to consider the effect of the
charter on penalties downgraded from a single indivisible penalty. It
was under Rep. Act No. 7659, passed in 1993, that some commonly
occurring crimes, such as qualified rape and kidnapping for ransom,
were penalized with the single indivisible penalty of death.
The discussion for purposes of this decision will only center on
crimes, such as qualified rape as defined in the Revised Penal Code,
as amended, for which the imposable penalty was death alone.
Thus, our ruling will bear no direct effect on the sentencing of
accomplices and accessories or persons guilty of the attempted or
frustrated stage of felonies for which the imposable penalty was
"reclusion perpetua to death."
Hence, it should be understood that any reference forthwith
to the penalty of death does not refer to the penalty of
"reclusion perpetua to death."
V.
If there was a clear intent in Rep. Act No. 9346 to downgrade the
penalties for convicts whose sentences had been graduated
beginning from death pursuant to Article 71, the Court would not
hesitate to enforce such downgrading based on clear statutory
intent. However, nothing in Rep. Act No. 9346 expressly refers to
those penalties imposed on frustrated or attempted felonies, or on
accessories and accomplices.
Section 1 of Rep. Act No. 9346 bears examination:
Section 1. The imposition of the penalty of death is hereby
prohibited. Accordingly, Republic Act No. Eight Thousand
One Hundred Seventy-Seven (R.A. No. 8177), otherwise
known as the Act Designating Death by Lethal Injection, is
hereby repealed. Republic Act No. Seven Thousand Six
Hundred Fifty-Nine (R.A. No. 7659), otherwise known as the
Death Penalty Law, and all other laws, executive orders and

decrees, insofar as they impose the death penalty are

hereby repealed or amended accordingly.
If the penalties for attempted rape of a minor, 71 among others,
were deemed to have been amended by virtue of Rep. Act No.
9346, such amendment can be justified under the ambit of the
repealing clause, which reads, "all other laws, executive orders and
decrees, insofar as they impose the death penalty are hereby
repealed or amended accordingly." While this clause may, given its
breadth, initially impress as the nature of a general repealing
clause, it is in actuality an express repealing clause. Section 1
specifically repeals all laws, executive orders and decrees insofar as
they impose the death penalty, and not merely such enactments
which are inconsistent with Rep. Act No. 9346.
Section 1 arguably presents more problems in that regard with its
utilization of the particular phrase "insofar as they impose the
death penalty." We can entertain two schools of thought in
construing this provision, both of them rooted in literalist
interpretations. First, it can be claimed that the present application
of the penalties for attempted rape of a minor (among many
examples) does not "impose the death penalty," since none of the
convicts concerned would face execution through the application of
the penalty for attempted rape. Hence, the statutory provisions
enforced in determining the penalty for attempted rape, or other
crimes not punishable by death, are not amended by Rep. Act No.
9346.
On the other hand, the operation of the provisions imposing the
penalty for attempted rape of a minor necessarily calls for the
application, if not its literal imposition, of death as a penalty, in the
context of applying the graduated scale of penalties under Article
71 of the Revised Penal Code. If we were to construe "impose" as to
mean "apply," then it could be argued that Article 71 was indeed
amended by Rep. Act No. 9346. After all, the application of Article
71 to crimes such as attempted rape of a minor call for the actual
operation of the death penalty not only in theory, but as a means of
determining the proper graduated penalty.
On face value, the attractive worth of the firstly offered line of
thinking is enhanced by its innate conservatism, limiting as it would
the effects of Rep. Act No. 9346. It also can be understood if
confronted with the option of employing either a liberal or a
conservative construction, there is a natural tendency to employ
the conservative mode. Further, the reasoning is seemingly

consistent with that employed by the Court in People v. Muoz,72 a

decision which will be thoroughly analyzed in the course of this
discussion.
If the true intent of Rep. Act No. 9346 was to limit the extent of the
"imposition" of the death penalty to actual executions, this could
have been accomplished with more clarity. For example, had
Section 1 read instead "insofar as they sentence an accused to
death," there would have been no room for doubt that only those
statutory provisions calling for actual executions would have been
repealed or amended. The inability of Congress to shape the
repealing clause in so specific a fashion does leave open the
question whether Congress did actually intend to limit the
operation of Rep. Act No. 9346 to actual executions only.
But let us for now test that premise by assuming for the nonce that
the legislative intent of Rep. Act No. 9346 was to limit the
prohibition of the law to the physical imposition of the death
penalty, without extending any effect to the graduated scale of
penalties under Article 71 of the Revised Penal Code.
VI.
There are troubling results if we were to uphold, based on
legislative intent, the interpretation of Rep. Act No. 9346 that limits
its effects only to matters relating to the physical imposition of the
death penalty.
Illustrations are necessary. The easy demonstration of iniquitous
results is in the case of accomplices. Under Article 267 of the
Revised Penal Code, as amended, kidnapping for ransom was
punishable by death. Let us say X and Y were tried for the crime. X
was charged as a principal for having directly participated in the
kidnapping. Y was charged as an accomplice for having allowed X
to use his house to detain the victim, even though Y was abroad at
the time of the crime and otherwise had no other participation
therein. Both X and Y were convicted by final judgment. Since X
could no longer be meted the death penalty, he is sentenced
instead to reclusion perpetua. Ordinarily, Y as an accomplice should
receive the penalty next lower in degree, or reclusion temporal. Yet
following the "conservative" interpretation of Rep. Act No. 9346, the
graduation of penalties remains unaffected with the enactment of
the new law. Thus, under Article 71, which would still take into
account the death penalty within the graduated scale, Y, as an

accomplice, would be sentenced to reclusion perpetua, the same

penalty as the principal.
It might be countered that part of the legislative intent of Rep. Act
No. 9346, by retaining the graduated scale of penalties under
Article 71, was to equalize the penalties of principals and
accomplices for crimes previously punishable by death. We do not
doubt that the legislature has the theoretical capability to amend
the penal law in such fashion. Yet given the drastic effects of
equalizing the penalties for principals and accomplices, a step that
runs contrary to entrenched thought in criminal law, one could
reasonably assume that a legislature truly oriented to enact such
change would have been candid enough to have explicitly stated
such intent in the law itself. Of course, nothing in Rep. Act No.
9346, either in the caption or in the provisions, explicates the
intention to equalize the penalties for principals and accomplices in
any crime at all.
Moreover, it cannot be denied that it would, at bare minimum,
seem strange that the penalties for principals and accomplices are
equalized in some crimes, and not in others. Let us return to our
previous example of X and Y, but this time, assume that they were
charged for simple kidnapping, with no qualifying circumstance that
would have resulted in the imposition of the death penalty. Since
the crime is not punishable by death, Rep. Act No. 9346 would have
no effect in the imposition of the penalty for simple kidnapping.
Accordingly, X would have been sentenced to reclusion perpetua as
the principal, while Y would have been sentenced to reclusion
temporal as an accomplice.
Since simple kidnapping is a comparatively lighter crime than
kidnapping for ransom, the lesser penalties are justified. Since Y
was merely an accomplice to the crime of simple kidnapping, the
imposition on him of a lighter penalty than X is in accord with the
Revised Penal Code and established juridical and legal thought.
Less justifiable would be the notion that in kidnapping for ransom,
the principal and the accomplice would receive the same penalty,
while in simple kidnapping, the principal suffers a higher penalty
than the accomplice. Frankly, there is no rational explanation for
such a disparity, and no legal justification other than the
recognition that Congress has the power to will it so.
Admittedly, the impact of Rep. Act No. 9346 is less dramatic in
relation to frustrated and attempted felonies which were
punishable by death if consummated. The consummated felony

previously punishable by death would now be punishable

by reclusion perpetua. At the same time, the same felony in its
frustrated stage would, under the foregoing premise in this section,
be penalized one degree lower from death, or also reclusion
perpetua. It does not seem right, of course, that the same penalty
of reclusion perpetua would be imposed on both the consummated
and frustrated felony. However, the anomaly would be mainly in
theory, as we recognize that those felonies previously punishable
by death are improbable of commission in their frustrated stage,
unlike several felonies punishable by "reclusion perpetua to
death,"73 such as murder, which may be frustrated.
Still, it cannot be denied that these felonies previously punishable
by death are capable of commission in their attempted stages and
that the Revised Penal Code provides that the penalty for
attempted felonies is "a penalty lower by two degrees than that
prescribed by law for the consummated felony." The Court has thus
consistently imposed reclusion temporal, the penalty two degrees
lower than death, as the maximum term for attempted felonies
which, if consummated, would have warranted the death
penalty.74 If it were to be insisted that Rep. Act No. 9346 did not
affect at all the penalties for attempted felonies, then those found
guilty of the subject attempted felonies would still be sentenced
to reclusion temporal, even though the "penalty lower by two
degrees than that prescribed by law for the consummated felony"
would now be prision mayor.
It should be pointed out that the interpretation of Rep. Act No. 9346
that would sanction a penalty for some attempted felonies that is
only one degree lower than the consummated crime would, again,
be disharmonious and inconsistent with the Revised Penal Code
and established thought in criminal law. Conceding again that the
legislature has the discretion to designate the criminal penalties it
sees fit, a regime that foists a differential theoretical basis for the
punishment of different attempted felonies resulting in
discriminatory penalties is not only irrational but also, to say the
least, highly suspect. Considering that physical liberties are at
stake, it would be a most cruel joke if such discriminatory effects
ensued not from deliberate legislative will, but from oversight.
VII.
The implementation of Rep. Act No. 9346 in a way that leaves
extant the penalties for accomplices, accessories, frustrated and
attempted felonies, clearly results in illogical, iniquitous and

inconsistent effects. In contrast, no similar flaws ensue should we

construe Rep. Act No. 9346 instead as not having barred the
application of the death penalty even as a means of depreciating
penalties other than death. In particular, the operative amendment
that would assure the integrity of penalties for accomplices,
accessories, frustrated and attempted felonies lies in Article 71,
which ranks "death" at the top of the scale for graduated penalties.
Simply put, the negation of the word "death" as previously
inscribed in Article 71 will have the effect of appropriately
downgrading the proper penalties attaching to accomplices,
accessories, frustrated and attempted felonies to the level
consistent with the rest of our penal laws. Returning to our previous
examples, Y, the convicted accomplice in kidnapping for ransom,
would now bear the penalty of reclusion temporal, the penalty one
degree lower than that the principal X would bear (reclusion
perpetua). Such sentence would be consistent with Article 52 of the
Revised Penal Code, as well as Article 71, as amended, to remove
the reference to "death." Moreover, the prospect of the accomplice
receiving the same sentence as the principal, an anomalous notion
within our penal laws, would be eliminated. Thus, the same
standard would prevail in sentencing principals and accomplices to
the crime of kidnapping in ransom, as that prescribed to the crime
of simple kidnapping.
The harmonization that would result if Rep. Act No. 9346 were
construed as having eliminated the reference to "death" in Article
71 would run across the board in our penal laws. Consistent with
Article 51 of the Revised Penal Code, those convicted of attempted
qualified rape would receive the penalty two degrees lower than
that prescribed by law, now Rep. Act No. 9346, for qualified rape.
There are principles in statutory construction that will sanction,
even mandate, this "expansive" interpretation of Rep. Act No. 9346.
The maxim interpretare et concordare legibus est optimus
interpretandi embodies the principle that a statute should be so
construed not only to be consistent with itself, but also to
harmonize with other laws on the same subject matter, as to form a
complete, coherent and intelligible systema uniform system of
jurisprudence.75 "Interpreting and harmonizing laws with laws is the
best method of interpretation. x x x x This manner of construction
would provide a complete, consistent and intelligible system to
secure the rights of all persons affected by different legislative and
quasi-

legislative acts."76 There can be no harmony between Rep. Act No.

9346 and the Revised Penal Code unless the later statute is
construed as having downgraded those penalties attached to death
by reason of the graduated scale under Article 71. Only in that
manner will a clear and consistent rule emerge as to the
application of penalties for frustrated and attempted felonies, and
for accessories and accomplices.
It is also a well-known rule of legal hermeneutics that penal or
criminal laws are strictly construed against the state and liberally in
favor of the accused.77 If the language of the law were ambiguous,
the court will lean more strongly in favor of the defendant than it
would if the statute were remedial, as a means of effecting
substantial justice.78The law is tender in favor of the rights of an
individual.79 It is this philosophy of caution before the State may
deprive a person of life or liberty that animates one of the most
fundamental principles in our Bill of Rights, that every person is
presumed innocent until proven guilty.
Resort to the aforementioned principles in statutory construction
would not have been necessary had Rep. Act No. 9346 ineluctably
stated that the repeal of all laws imposing the death penalty did not
engender the corresponding modification of penalties other than
death, dependent as these are on "death" as a measure under the
graduated scale of penalties under Article 71. Admittedly, if this
were indeed the intent of Congress, and such intent were
unequivocally expressed in Rep. Act No. 9346, the resulting
inequities and inconsistencies we had earlier pointed out would
have remained. If that were to be the case, we would have
acknowledged, perhaps tacitly, that such inequities and
inconsistencies fell part of the legislative intent. It does not speak
well of a Congress to be deliberately inconsistent with, or ignorant
of its own prior enactments. Yet ultimately, Section 1 of Rep. Act
No. 9346 is not expressive of such rash or injudicious notions, as it
is susceptible to a reading that would harmonize its effects with the
precepts and practices that pervade our general penal laws, and in
a manner that does not defy the clear will of Congress.
VIII.
One who would like to advocate that Rep. Act No. 9346 did not
correspondingly amend any of the penalties other than death in our
penal laws would most certainly invoke our ruling in People v.
Muoz,80 decided in 1989. Therein, a divided Court ruled in that the
constitutional bar on the imposition of the death penalty did not

enact "a corresponding modification in the other periods [in

penalties]", there being no expression of "such a requirement in
Article III, Section 19(1) of the Constitution or indicat[ion] therein by
at least
clear and unmistakable implication." 81 In so concluding, the Court
made the oft-cited pronouncement that there was nothing in the
1987 Constitution "which expressly declares the abolition of the
death penalty."82
It is time to re-examine Muoz and its continued viability in light of
Rep. Act No. 9346. More precisely, wouldMuoz as precedent deter
the Court from ruling that Rep. Act No. 9346 consequently
downgraded penalties other than death?
It can be recalled that the accused in Muoz were found guilty of
murder, which under the Revised Penal Code, carried the penalty
of reclusion temporal in its maximum period to death. The subject
murders therein were not attended by any modifying circumstance,
and thus penalized in the penalty's medium term. Jurisprudence
previous to Muoz held that the proper penalty in such instances
should be "the higher half of reclusion temporalmaximum,"
with reclusion temporal maximum, divided into two halves for that
purpose. Muoz rejected this formulation, holding instead that the
penalty should be reclusion perpetua. Towards this conclusion, the
Court made the above-cited conclusions relating to the
constitutional abolition of the death penalty, and the charter's
effects on the other periods. Six justices dissented from that ruling,
and as recently as 1997, a member of the Court felt strongly
enough to publish a view urging the reexamination of Muoz.83
It would be disingenuous to consider Muoz as directly settling the
question now befacing us, as the legal premises behind Muoz are
different from those in this case. Most pertinently, Muoz inquired
into the effects of the Constitution on the proper penalty for
murder; while herein, we are ascertaining the effects of Rep. Act
No. 9346 on the proper penalty for attempted qualified
rape. Muoz may have pronounced that the Constitution did
not abolish the death penalty, but that issue no longer falls
into consideration herein, the correct query now being
whether Congress has banned the death penalty through
Rep. Act No. 9346. Otherwise framed, Muoz does not
preclude the Court from concluding that with the express
prohibition of the imposition of the death penalty Congress
has unequivocally banned the same.

Muoz made hay over the peculiar formulation of Section 19(1),

Article III, which provided that "[n]either shall death penalty be
imposed, unless, for compelling reasons involving heinous crimes,
the Congress hereafter provides for it." Muoz and its progenies,
have interpreted that provision as prohibiting the actual imposition
of the death penalty, as opposed to enacting an amendatory law
that eliminates all references and applications of the death penalty
in our statutes. It can also be understood and appreciated that at
the time Muoz was decided, it would have been polemical to
foster an unequivocal pronouncement that Section 19(1), Article III
abolished the death penalty, since the very provision itself
acknowledged that Congress may nonetheless subsequently
provide for the penalty "for compelling reasons involving heinous
crimes," as Congress very well did just four (4) years after Muoz.
No such language exists in Rep. Act No. 9346. Of course, the
legislature has the inherent and constitutional power to enact laws
prescribing penalties for crimes, and the Constitution will not
prohibit Congress from reenacting the death penalty "for
compelling reasons involving heinous crimes." Yet it was that
express stipulation in the Constitution that dissuaded the Court
from recognizing the constitutional abolition of the death penalty;
and there is no similar statutory expression in Rep. Act No. 9346,
which could be construed as evocative of intent similar to that of
the Constitution.
The doctrine in Muoz that the constitutional prohibition on the
imposition of the death penalty did not enact a corresponding
modification of other penalties is similarly irrelevant to this case,
which calls for an examination as to whether such corresponding
modifications of other penalties arose as a consequence of Rep. Act
No. 9346, and not the Constitution.
For purposes of legal hermeneutics, the critical question is whether
Rep. Act No. 9346 intended to delete the word "death" as expressly
provided for in the graduated scale of penalties under Article
71. Muoz did not engage in an analogous inquiry in relation to
Article 71 and the Constitution, for what was relevant therein was
not the general graduated scale of penalties, but the range of the
penalties for murder. Herein, at bare minimum, no provision in Rep.
Act No. 9346 provides a context within which the concept of "death
penalty" bears retentive legal effect, especially in relation to Article
71. Unlike the Constitution, Rep. Act No. 9346 does expressly
stipulate the amendment of all extant laws insofar as they called
for the imposition of the penalty of death.

The impression left by Muoz was that the use of the word
"imposition" in the Constitution evinced the framer's intent to
retain the operation of penalties under the Revised Penal Code. In
the same vein, one might try to construe the use of "imposition" in
Rep. Act No. 9346 as a means employed by Congress to ensure that
the "death penalty", as applied in Article 71, remain extant. If the
use of "imposition" was implemented as a means of retaining
"death" under Article 71, it would have been a most curious,
roundabout means indeed. The Court can tolerate to a certain
degree the deliberate vagueness sometimes employed in
legislation, yet constitutional due process demands a higher degree
of clarity when infringements on life or liberty are intended. We
have ruled, on due process grounds, as arbitrary and oppressive a
tax assessed on a standard characterized as "nothing but blather in
search of meaning."84 In the matter of statutes that deprive a
person of physical liberty, the demand for a clear standard in
sentencing is even more exacting.
Yet in truth, there is no material difference between "imposition"
and "application," for both terms embody the operation in law of
the death penalty. Since Article 71 denominates "death" as an
element in the graduated scale of penalties, there is no question
that the operation of Article 71 involves the actual application of
the death penalty as a means of determining the extent which a
person's liberty is to be deprived. Since Rep. Act No. 9346
unequivocally bars the application of the death penalty, as well as
expressly repeals all such statutory provisions requiring the
application of the death penalty, such effect necessarily extends to
its relevance to the graduated scale of penalties under Article 71.
We cannot find basis to conclude that Rep. Act No. 9346 intended
to retain the operative effects of the death penalty in the
graduation of the other penalties in our penal laws. Munoz cannot
enjoin us to adopt such conclusion. Rep. Act No. 9346 is not
swaddled in the same restraints appreciated by Muoz on Section
19(1), Article III. The very Congress empowered by the Constitution
to reinstate the imposition of the death penalty once thought it
best to do so, through Rep. Act No. 7650. Within the same realm of
constitutional discretion, Congress has reversed itself. It must be
asserted that today, the legal status of the suppression of the
death penalty in the Philippines has never been more secure than
at any time in our political history as a nation.
Following Muoz, the sovereign people, through the 1987
Constitution, might not have willed the abolition of the death

penalty and instead placed it under a suspensive condition. As

such, we affirmed the characterization of the death penalty during
the interregnum between the 1987 Constitution and its
reimposition through law as being "in a state of hibernation." 85 No
longer. It reawakened then it died; because the sovereign
people, through Rep. Act No. 9346, banned the death penalty. Only
by an Act of Congress can it be reborn. Before that day, the
consideration of death as a penalty is bereft of legal effect, whether
as a means of depriving life, or as a means of depriving liberty.

does not serve as basis for the reduction of civil indemnity and
other damages that adhere to heinous crimes.

Despite our present pronouncement on the ban against of the

death penalty, we do not acknowledge that Muozlacked legal
justification when it was decided; that its application as precedent
prior to Rep. Act No. 9346 was erroneous; or that previous
sentences imposed on convicts on the basis of Muoz were
wrong. Muoz properly stood as the governing precedent in the
matter of sentences that passed finality prior to Rep. Act No. 9346;
and the consistent reliance by the courts on its doctrines
entrenched its footing in criminal law jurisprudence.

As to sentences not yet handed down, or affirmed with finality, the

application is immediate. Henceforth, "death," as utilized in Article
71 of the Revised Penal Code, shall no longer form part of the
equation in the graduation of penalties. For example, in the case of
appellant, the determination of his penalty for attempted rape shall
be reckoned not from two degrees lower than death, but two
degrees lower than reclusion perpetua. Hence, the maximum term
of his penalty shall no longer be reclusion temporal, as ruled by the
Court of Appeals, but instead,prision mayor.

IX.
Rep. Act No. 7659, in the course of reintroducing the death penalty
in the Philippines, also effectively classified the crimes listed
therein as "heinous," within constitutional contemplation. Such
reclassification under Rep. Act No. 7659 was accompanied by
certain legal effects other than the imposition of the death penalty,
such as the increase in imposable fines attached to certain heinous
crimes.86 The categorization of certain crimes as "heinous",
constituting as it does official recognition that some crimes are
more odious than others, has also influenced this Court in
adjudging the proper pecuniary indemnities awarded to the victims
of these crimes. Hence, a general inclination persists in levying a
greater amount of damages on accused found guilty of heinous
crimes.

There should be little complication if the crime committed was

punishable by the free-standing penalty of "death," as utilized in
Rep. Act No. 7659, as opposed to the ranged penalty of "reclusion
perpetua to death," as often used in the Revised Penal Code and
other penal laws. The facts of the present case do not concern the
latter penalty, hence our reluctance to avail of an extended
discussion thereof. However, we did earlier observe that both
"reclusion perpetua" and death are indivisible penalties. Under
Article 61 (2) of the Revised Penal Code, "[w]hen the penalty
prescribed for the crime is composed of two indivisible penalties x x
x x the penalty next lower in degree shall be that immediately
following the lesser of the penalties prescribed in the respective
graduated scale." Hence, as we earlier noted, our previous rulings
that the penalty two degrees lower than "reclusion perpetua to
death" is prision mayor.

It should be understood that the debarring of the death penalty

through Rep. Act No. 9346 did not correspondingly declassify those
crimes previously catalogued as "heinous". The amendatory effects
of Rep. Act No. 9346 extend only to the application of the death
penalty but not to the definition or classification of crimes. True, the
penalties for heinous crimes have been downgraded under the
aegis of the new law. Still, what remains extant is the recognition
by law that such crimes, by their abhorrent nature, constitute a
special category by themselves. Accordingly, Rep. Act No. 9346

Then there is the matter of whether retroactive effect should be

extended to this new ruling, favorable as it is to persons previously
convicted of crimes which, if consummated or participated in as a
principal, would have warranted the solitary penalty of death. We
see no choice but to extend the retroactive benefit. Article 22 of the
Revised Penal Code states that "[p]enal laws shall have a
retroactive effect insofar as they favor the person guilty of a felony,
who is not a habitual criminal[ 87] x x x x although at the time of the
publication of such laws a final sentence has been pronounced and

X.
Having pronounced the statutory disallowance of the death penalty
through Rep. Act No. 9346 and the corresponding modification of
penalties other than death through that statute, we now proceed to
discuss the effects of these rulings.

the convict is serving the same." Given that we have ruled that
Rep. Act No. 9346 downgraded the penalties for such crimes, the
benefit of Article 22 has to apply, except as to those persons
defined as "habitual criminal[s]." Indeed, Rep. Act No. 9346
expressly recognized that its enactment would have retroactive
beneficial effects, referring as it did to "persons x x x whose
sentences were reduced to reclusion perpetua by reason of this
Act."88
It cannot be discounted that by operation of Rep. Act No. 9346 and
Article 22 of the Revised Penal Code, there may be convicts
presently serving their original sentences whose actual served
terms exceed their reduced sentences. It should be understood
that this decision does not make operative the release of
such convicts, especially as there may be other reasons
that exist for their continued detention. There are remedies
under law that could be employed to obtain the release of such
prisoners, if warranted. Offices such as the Public Attorney's Office
and non-governmental organizations that frequently assist
detainees possess the capacity and acumen to help implement the
release of such prisoners who are so entitled by reason of this
ruling.
XI.
We close by returning to the matter of appellant Alfredo Bon. By
reason of Rep. Act No. 9346, he is spared the death sentence, and
entitled to the corresponding reduction of his penalty as a
consequence of the downgrading of his offense from two (2) counts
consummated rape to two (2) counts of attempted rape. For the six
(6) counts of rape, we downgrade the penalty of death to reclusion
perpetua with no eligibility for parole, pursuant to Rep. Act No.
9346. For each of the two (2) counts of attempted rape, we
downgrade by one degree lower the penalty imposed by the Court
of Appeals. We hold that there being no mitigating or aggravating
circumstances, the penalty of prision mayor should be imposed in it
medium period. Consequently, we impose the new penalty of two
(2) years, four (4) months and one (1) day of prision correccional as
minimum, to eight (8) years and one (1) day of prision mayor as
maximum.
Lastly, as to damages, the Court awards AAA P30,000.00 as civil
indemnity, P25,000.00 as moral damages andP10,000.00 as
exemplary damages for each count of attempted rape, it being the

prevailing rate of indemnity as pronounced in the recent case

of People v. Miranda.89
Separately, the Court applies prevailing jurisprudence 90 in awarding
to BBB and AAA P75,000.00 as civil indemnity, P75,000.00 as moral
damages and P25,000.00 as exemplary damages, for each count of
consummated rape.
WHEREFORE, in light of the foregoing, the Decision of the Court of
Appeals is hereby AFFIRMED WITH MODIFICATION. The Court
sentences appellant Alfredo J. Bon to the penalty of reclusion
perpetua with no possibility of parole for each of the six (6) counts
of consummated rape committed against AAA in Criminal Case Nos.
6699, 6902, and against BBB in Criminal Case Nos. 6689, 6903,
6905, and 6907. Appellant is further ORDERED to indemnify AAA
and BBB for the crime of consummated rape, in the amounts
of P50,000.00 as civil indemnity, P50,000.00 as moral damages
and P25,000.00 as exemplary damages for each of them.
For the two (2) counts of attempted rape of AAA in Criminal Cases
No. 6906 and 6908, appellant is hereby SENTENCED to an
indeterminate penalty of two (2) years, four (4) months and one (1)
day of prision correccionalas minimum, to eight (8) years and one
(1) of prision mayor as maximum for each count of attempted rape.
In addition, appellant is ORDERED to indemnify AAA for each of the
two (2) counts of attempted rape in the amounts of P30,000.00 as
civil indemnity, P25,000.00 as moral damages and P10,000.00 as
exemplary damages.
SO ORDERED.

G.R. No. 175781

March 20, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
FRANCISCA TALARO,* GREGORIO TALARO,** NORBERTO (JUN)
ADVIENTO, RENATO RAMOS, RODOLFO DUZON,*** RAYMUNDO
ZAMORA** and LOLITO AQUINO, Accused.

NORBERTO (JUN) ADVIENTO, RENATO RAMOS and LOLITO

AQUINO, Accused-Appellants.
DECISION
PERALTA, J.:
This is an automatic review of the Decision 1 of the Court of Appeals
(CA) promulgated on December, 15, 2005, in accordance with
Section 2 of Rule 125, in relation to Section 3 of Rule 56, of the
Rules of Court. The CA affirmed with modification the judgment
rendered by the Regional Trial Court (RTC), Branch 38 of Lingayen,
Pangasinan, thereby finding accused-appellants Norberto (Jun)
Adviento, Renato Ramos and Lolito Aquino, guilty beyond
reasonable doubt of the crime of Murder and sentencing them to
death, but acquitting accused Rodolfo Duzon.
Accused-appellants were charged before the RTC of Urdaneta,
Pangasinan, with the crime of murder under an Information reading
as follows:
That on or about the 26th day of April 1994, in the Poblacion of the
Municipality of Laoac, Province of Pangasinan, and within the
jurisdiction of this Honorable Court, the said accused, conspiring,
confederating with each other, with intent to kill, and with
treachery, and evident premeditation, in consideration of a price,
and by means of motor vehicle, did then and there, willfully,
unlawfully and feloniously attack and shoot one MELVIN ALIPIO,
with a handgun hitting the latter in the different parts of his body
and the wounds being mortal caused directly the death of said
MELVIN ALIPIO, to the damage and prejudice of his heirs.
CONTRARY to Article 248, Revised Penal Code.2
The testimonies of prosecution witnesses showed the sequence of
events shortly before and after the killing of victim Melvin Alipio to
be as follows.
Raymundo Zamora is the nephew of Gregorio Talaro, the husband
of Francisca Talaro. In the morning of April 24, 1994, when Zamora
went home for breakfast after driving his tricycle, he found
Francisca Talaro, Lolito Aquino, Renato "Atong" Ramos, and
Norberto "Jun" Adviento conversing among themselves under a
santol tree in front of his (Zamora's) house. He went near the group

to find out what they were talking about and he learned that his
aunt, Francisca Talaro, was transacting with the other three
accused-appellants for the killing of Atty. Melvin Alipio. He was
merely a meter away from the group so he heard the group's
conversation. He learned that Francisca Talaro would give the three
accused-appellants an advance payment of P30,000.00 and then
another P30,000.00 after Atty. Melvin Alipio is killed, with said last
payment to be delivered in Barangay (Brgy.) Bactad. The three
accused-appellants then nodded their heads in agreement. After
learning of the group's plan, Zamora got scared and stayed away
from the group, but three days after that meeting in front of his
house, he was asked by Francisca Talaro to drive her and her
husband Gregorio to Brgy. Bactad. The Talaro spouses alighted at a
place in Brgy. Bactad, while Zamora stayed in his tricycle and
merely waited for them. He assumed that the couple delivered the
payment of P30,000.00 to someone in Brgy. Bactad.3
Accused-appellant Lolito Aquino, when questioned during
preliminary investigation, admitted that he and co-accused Renato
Ramos conducted a surveillance on Atty. Alipio in the afternoon of
April 25, 1994.4
Around 6 o'clock in the morning of April 26, 1994, tricycle driver
Rodolfo Duzon was at the parking area in thepoblacion of Urdaneta
waiting for passengers, when accused-appellant Renato Ramos
approached him. Accused-appellant Ramos offered to pay Rodolfo
Duzon P200.00 for the latter to drive Ramos' motorcycle to Laoac,
Pangasinan to take some onions and turnips there. Duzon agreed,
so after bringing his own tricycle home to his house in Bactad,
Urdaneta, he then drove Ramos' motorcycle to the poblacion of
Urdaneta. At the poblacion, Ramos bought a basket where he
placed the onions and turnips. Ramos then told Duzon to drive the
motorcycle to Laoac, but they first passed by Garcia Street in
Urdaneta. At a house along Garcia Street, Ramos alighted and
talked to someone whom Rodolfo Duzon later came to know as
accused-appellant Lolito Aquino. Ramos then told Duzon that after
coming from Laoac, Duzon should leave the motorcycle at that
house on Garcia Street with Lolito Aquino. Ramos and Duzon then
proceeded to Laoac, stopping at a gas station where they fueled
up. Ramos alighted from the motorcycle at the gas station and,
taking along the basket of onions and turnips, walked towards
Guardian Angel Hospital (the clinic owned by the Alipios). Five
minutes after Ramos alighted, Duzon heard three gunshots coming
from the west, and moments later, he saw Ramos, who was coming
toward him, being chased by another man. When Ramos got to the

motorcycle, he ordered Duzon to immediately drive away, and

poked a gun at Duzon's back. Ramos then instructed Duzon as to
the route they should take until they reached Urdaneta where
Ramos alighted, leaving Duzon with instructions to bring the
motorcycle to Garcia Street, leave it with Lolito Aquino, then meet
him (Ramos) again at the poblacion where he (Duzon) will be
paid P200.00 for his services. Duzon did as he was told, but when
he met with Ramos at the poblacion and asked for the P200.00,
Ramos got mad and shouted invectives at him. A few days later, he
again ran into Ramos who warned him to keep his silence,
threatening to kill him (Duzon) too if he tells anyone about the
killing. Accused-appellant Norberto (Jun) Adviento also threatened
him not to reveal to anyone whatever he knows about the crime.
That was why Duzon decided to keep quiet. Later, however, he
revealed the matter to his brother, Victoriano Duzon, who
accompanied him to the Criminal Investigation Services (CIS) Office
in Urdaneta so he could give his statement. He executed affidavits,
assisted by a lawyer from the Public Attorneys Office (PAO),
attesting to what he knew about the crime, in his desire to be a
state witness.5
Witness Rene Balanga, who was the helper of the spouses Atty.
Melvin and Dr. Lina Alipio, was cleaning the windows at the clinic of
Dr. Alipio around 8 o'clock in the morning of April 26, 1994. He
heard three gunshots coming from the garage of the clinic, which
was around ten meters away from where he was. Immediately after
the gunshots, he saw a man quickly walking out from the garage,
going towards the main gate, but he was not able to clearly see the
face of the man. He merely observed that the man was around 5'4"
to 5'5" in height, medium-built, wearing a blue jacket and
faded maong (denim) pants. He ran towards the garage and there,
he saw Atty. Melvin Alipio lying dead. He then chased after the man
so he could identify him better but he did not succeed in doing so
because the driver of the motorcycle that the gunman was
boarding was already drawing something out from the rear portion
of the motorcycle. After the assailant sped off, Balanga went to the
police station in Laoac to report the crime and give his statement
before the CIS. Sometime later, at the CIS Office, he identified
Rodolfo Duzon as the driver of the motorcycle used by the gunman
to get away.6
Another eyewitness, Eusebio Hidalgo, whose son was confined at
the clinic, was sitting at a bench in the garage of the clinic on the
morning of April 26, 1994. Two other women who were looking for
Atty. Alipio also sat at the bench with him after he told them that

Atty. Alipio was still having his breakfast. After a few minutes, a
man arrived looking for Dr. Alipio, and also sat at the bench.
Thereafter, Atty. Alipio came out to the garage and talked to the
two women. When Atty. Alipio finished talking to them, the man
sitting with them on the bench suddenly stood up and shot Atty.
Alipio three times. Atty. Alipio was merely one meter away from the
assailant when the latter shot him. After the shooting, the assailant
walked away. Hidalgo then saw the helper at the clinic, Reny
Balanga, run after the assailant, but the latter had whistled to his
companion who was waiting on his motorcycle and the two were
able to speed away aboard said vehicle. Hidalgo identified the
assailant from a picture7 shown to him.8 The picture was that of
Renato Ramos.9
A few weeks after Atty. Melvin Alipio had been killed, Zamora was in
the parking lot in Sta. Maria Norte in Binalonan, when accusedappellant Aquino approached him and told him to remind Francisca
Talaro that she still has to pay him (Aquino) P10,000.00. Zamora
then immediately told his uncle Gregorio Talaro about Aquino's
message and the very next day, Gregorio went to Zamora's house
with the P10,000.00. Gregorio could no longer wait for Aquino so he
just left the money with Zamora, instructing him to hand it over to
Aquino when the latter arrives. Later that day, Zamora saw Aquino
so he told him (Aquino) to just get the money from his house. About
three weeks later, Aquino again went to Zamora's house, this time
saying he needs another P5,000.00 just in case he needs to escape.
Zamora then contacted Francisca Talaro and conveyed Aquino's
message to her. The following day, Gregorio again went to
Zamora's house and left the P3,000.00 for Aquino. That afternoon,
Zamora again told Aquino to just pick up the money from his house.
Zamora observed that Aquino seemed happy enough with
the P3,000.00 he received.10
Zamora said that he thinks the Talaros had Atty. Alipio killed
because the latter was not able to comply with his contractual
obligations to the Talaros to complete the construction of a
building. Dr. Lina Alipio, the wife of the victim Atty. Melvin Alipio,
confirmed that indeed, the victim entered into an agreement with
Rodolfo Talaro, the Talaro spouses' son, for the construction of a
building, but the construction was not finished within the agreed
one-year period because of the sudden rise of prices for materials.
Atty. Alipio asked Rodolfo for additional payment so he could finish
construction, but the latter refused to pay more. Dr. Alipio stated
that eventually, Atty. Alipio and Rodolfo agreed that Atty. Alipio
would return all the money he received from Rodolfo and the whole

property would, in turn, be turned over to Atty. Alipio. Atty. Alipio

was unable to return the money despite several demands made by
Rodolfo, and Dr. Alipio believes this is the reason why the Talaros
had her husband killed. Dr. Alipio further testified on matters
regarding expenses for the wake and burial, and the earnings of her
husband.11
Dr. Arnulfo Bacarro conducted the autopsy on the victim and stated
that three slugs were taken from the body of the victim, and the
cause of death was internal hemorrhage. 12 Police officers testified
on how they conducted the investigation, stating that accusedappellant Aquino and Zamora's statements were taken in the
presence of their respective lawyers. They maintain that no bodily
harm was inflicted on the accused-appellants while they were being
investigated.13
On the other hand, accused-appellant Lolito Aquino stated that he
was taken by CIS men without a warrant of arrest; that he was
mauled by police authorities while under detention, but could not
undergo a medical check-up due to fear from threats that he would
be killed by police authorities if he did so; that he was assisted by a
PAO lawyer when he made his confession, but he did not read the
contents of the document, Sgt. Tomelden just ordered him to sign
the same; that the PAO lawyer is not his own choice; that he does
not know Rodolfo Duzon and Raymundo Zamora; and that he was
not present at the meeting held in Raymundo Zamora's yard. He
admitted, however, that the motorcycle used by the gunman
belongs to him; and that he first agreed to be a state witness
because he was promised to be paid P20,000.00 and that he would
be placed in the witness protection program. 14
Accused-appellant Norberto (Jun) Adviento's defense is denial and
alibi. He claimed that he was not present during the April 24, 1994
meeting held to plan the killing of Atty. Alipio, because on said date
and time, he was in the house of Congressman Amadito Perez, for
whom he works as driver-messenger, and that morning, he also
drove the Congressman's family to church to hear mass. On April
26, 1994, he also reported for work at the house of the
Congressman from 8 o'clock in the morning until 5 o'clock in the
afternoon. He likewise denied personally knowing any of his coaccused except for Duzon whose face is familiar to him. 15
After trial, the RTC rendered judgment as follows:

Wherefore, in the light of all the considerations discussed above,

this court hereby finds and holds the accused Francisca Talaro,
Norberto (Jun) Adviento, Renato Ramos, Rodolfo Duzon and Lolito
Aquino, guilty beyond reasonable doubt of the crime of Murder
defined and penalized under the provisions of Article 248 of the
Revised Penal Code as amended by Republic Act No. 7659 and
conformable thereto, pursuant to law, hereby imposes on each of
the accused the death penalty and to pay proportionately the costs
of the proceedings.
The court further orders the accused to indemnify, jointly and
severally, the heirs of the deceased the sum ofP83,000.00 as actual
damages; P100,000.00 as moral damages; P50,000.00 as death
indemnity; P10,000.00 as [attorney's fees] paid to their private
prosecutor and P2,400,000.00 as loss in the earning capacity of the
deceased without subsidiary imprisonment in case of insolvency.
Taking into consideration that accused Francisca Talaro is already
75 years old, the death penalty meted upon her shall be commuted
to reclusion perpetua with the accessory penalties provided in
Article 40 of the Revised Penal Code.
And considering that the evidence adduced by the prosecution
against the accused Gregorio Talaro is not sufficient to sustain his
conviction of the offense filed against him, the court hereby
declares accused Gregorio Talaro not guilty. The court likewise
declares Raymundo Zamora acquitted of the offense filed against
him.
Let an order of arrest be issued against accused Renato Ramos who
escaped from jail during the pendency of this case, to be served by
the NBI, CIC and PNP of Urdaneta, Pangasinan.
SO ORDERED.16
The case was then brought to this Court for automatic review in
view of the penalty of death imposed on accused-appellants.
However, in accordance with the ruling in People v. Mateo,17 and
the amendments made to Sections 3 and 10 of Rule 122, Section
13 of Rule 124, and Section 3 of Rule 125 of the Revised Rules on
Criminal Procedure, the Court transferred this case to the CA for
intermediate review.

On December 15, 2005, the CA rendered its Decision, the

dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, the decision of the Regional
Trial Court, Branch 38 of Lingayen, Pangasinan in Criminal Case No.
U-8239, is hereby AFFIRMED with the MODIFICATION that accusedappellant Rodolfo Duzon is ACQUITTED on reasonable doubt and his
release is hereby ordered unless he is being held for some other
legal cause.
Further, in lieu of the awards made by the trial court in favor of the
heirs of deceased Atty. Melvin Alipio, accused-appellants are
ordered to pay, jointly and severally, the heirs of the victim the
following amounts: (1) P25,000.00 as temperate damages;
(2) P75,000.00 as civil indemnity; (3) P50,000.00 as moral
damages; and (4) P25,000.00 as exemplary damages;
SO ORDERED.18
The case is now before this Court on automatic review. The
prosecution opted not to file a supplemental brief with this Court.
Accused-appellants Lolito Aquino and Renato Ramos jointly filed
their supplemental brief where it is argued that the two should be
acquitted because (1) the prosecution evidence is insufficient to
prove that Lolito Aquino was part of the conspiracy to kill Atty.
Melvin Alipio; and (2) the identity of Renato Ramos was never
established. Accused-appellant Noberto (Jun) Adviento argued in his
Appellant's Brief filed with the CA, that the prosecution's evidence
is insufficient to establish conspiracy, and there are no aggravating
circumstances to justify the imposition of the death penalty.
The Court agrees with the CA's conclusion that the evidence on
record proves beyond reasonable doubt that accused-appellants
Lolito Aquino, Renato Ramos, and Norberto (Jun) Adviento, together
with Francisca Talaro, conspired to kill Atty. Melvin Alipio.
Murder under Article 248 of the Revised Penal Code is defined as
the unlawful killing of a person, which is not parricide or infanticide,
attended by circumstances such as treachery or evident
premeditation. The presence of any one of the circumstances
enumerated in Article 248 of the Code is sufficient to qualify a
killing as murder. 19

In People v. Sanchez,20 the Court held that "[t]he essence of

treachery is the sudden attack by an aggressor without the
slightest provocation on the part of the victim, depriving the latter
of any real chance to defend himself, thereby ensuring the
commission of the crime without risk to the aggressor." There can
be no cavil that the evidence on record shows treachery in the
killing of Atty. Alipio, thus qualifying the crime as murder. The
assailant, identified as accused-appellant Renato Ramos, just
suddenly fired upon Atty. Alipio at a very close distance, without
any provocation from said unarmed victim, who was then just
conversing with some other people.
There is also evident premeditation because the evidence shows
that a couple of days before the actual shooting of Atty. Alipio,
Raymundo Zamora already saw and heard accused-appellants
Norberto (Jun) Adviento, Renato Ramos, and Lolito Aquino, talking
to Francisca Talaro and coming to an agreement to kill Atty. Alipio.
Pitted against the prosecution evidence, accused-appellants' only
defense is that the evidence is insufficient to prove they are part of
the conspiracy to commit the murder. Said defense is sorely
wanting when pitted against the prosecution evidence.
In People v. Bautista,21 the Court reiterated the hornbook principle
of conspiracy, to wit:
Conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and
decide to commit it. Where all the accused acted in concert at
the time of the commission of the offense, and it is shown by such
acts that they had the same purpose or common design and were
united in its execution, conspiracy is sufficiently established. It
must be shown that all participants performed specific acts which
such closeness and coordination as to indicate a common purpose
or design to commit the felony.
xxxx
Each conspirator is responsible for everything done by his
confederates which follows incidentally in the execution of a
common design as one of its probable and natural consequences
even though it was not intended as part of the original design. x x
x22 (Emphasis supplied)

In this case, the existence of a conspiracy has been established by

the testimony of Raymundo Zamora, positively identifying all three
accused-appellants as the ones he saw and heard transacting with
Francisca Talaro on April 24, 1994 to kill Atty. Melvin Alipio for the
price of P60,000.00, and pointing to Lolito Aquino as the one who
demanded and received part of the payment after Atty. Alipio had
been killed. The credibility of Raymundo Zamora's testimony is
further bolstered by Lolito Aquino's admission 23 that he and Renato
Ramos even conducted surveillance on the victim a day before
Renato Ramos carried out the shooting, and that the motorcycle
used as a getaway vehicle belonged to him. Rodolfo Duzon also
pointed to Renato Ramos as the gunman; he also pointed to Renato
Ramos and Norberto (Jun) Adviento as the ones who threatened to
kill him if he talks to anyone about the shooting. All the proven
circumstances point to the conclusion that accused-appellants
acted in concert to assure the success of the execution of the
crime; hence, the existence of a conspiracy is firmly established.

demeanor of witnesses.27 The Court again explained the rationale

for this principle in Molina,28 to wit:

Lolito Aquino's admission, and accused-appellants' positive

identification of Raymundo Zamora and Rodolfo Duzon cannot be
belied by accused-appellants' mere denial. It is established
jurisprudence that denial and alibi cannot prevail over the witness'
positive identification of the accused-appellants. 24 Moreover,
accused-appellants could not give any plausible reason why
Raymundo Zamora would testify falsely against them. In People v.
Molina,25 the Court expounded, thus:

The Court cannot find anything on record to justify deviation from

said rule.

In light of the positive identification of appellant by the

prosecution witnesses and since no ill motive on their part
or on that of their families was shown that could have made
either of them institute the case against the appellant and
falsely implicate him in a serious crime he did not commit,
appellant's defense of alibi must necessarily fail. It is settled
in this jurisdiction that the defense of alibi, being inherently weak,
cannot prevail over the clear and positive identification of the
accused as the perpetrator of the crime. x x x 26 (Emphasis
supplied)
Accused-appellant Lolito Aquino claimed he merely admitted his
participation in the crime out of fear of the police authorities who
allegedly manhandled him, however, the trial court did not find his
story convincing. The trial court's evaluation of the credibility of
witnesses and their testimonies is conclusive on this Court as it is
the trial court which had the opportunity to closely observe the

As oft repeated by this Court, the trial court's evaluation of the

credibility of witnesses is viewed as correct and entitled to the
highest respect because it is more competent to so conclude,
having had the opportunity to observe the witnesses' demeanor
and deportment on the stand, and the manner in which they gave
their testimonies. The trial judge therefore can better determine if
such witnesses were telling the truth, being in the ideal position to
weigh conflicting testimonies. Further, factual findings of the trial
court as regards its assessment of the witnesses' credibility are
entitled to great weight and respect by this Court, particularly when
the Court of Appeals affirms the said findings, and will not be
disturbed absent any showing that the trial court overlooked
certain facts and circumstances which could substantially affect the
outcome of the case.29

Accused-appellant Renato Ramos insisted that he was not properly

identified in open court, and considering that there are so many
persons named "Renato Ramos," then there can be some confusion
regarding his identity. There is no truth to this claim. Ramos was
properly identified in open court by Raymundo Zamora, as one of
the men he saw and heard transacting with Francisca Talaro for the
killing of Atty. Alipio.30 Hence, there can be no doubt as to which
Renato Ramos is being convicted for the murder of Atty. Alipio.
Another strong indication of Lolito Aquino's and Renato Ramos' guilt
is the fact that they escaped from detention while the case was
pending with the trial court. Renato Ramos escaped from prison on
December 20, 1994,31while Lolito Aquino escaped on May 5,
1996.32 It has been repeatedly held that flight betrays a desire to
evade responsibility and is, therefore, a strong indication of
guilt.33 Thus, this Court finds no reason to overturn their conviction.
Nevertheless, this Court must modify the penalty imposed on
accused-appellants Norberto (Jun) Adviento, Lolito Aquino, and
Renato Ramos. In People v. Tinsay,34 the Court explained that:
On June 30, 2006, Republic Act No. 9346 (R.A. 9346), entitled An
Act Prohibiting the Imposition of Death Penalty in the

Philippines, took effect. Pertinent provisions thereof provide as

follows:
Section 1. The imposition of the penalty of death is hereby
prohibited. Accordingly, Republic Act No. Eight Thousand One
Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the
Act Designating Death by Lethal Injection is hereby repealed.
Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A. No.
7659) otherwise known as the Death Penalty Law and all other
laws, executive orders and decrees insofar as they impose the
death penalty are hereby repealed or amended accordingly.
Section 2. In lieu of the death penalty, the following shall be
imposed:
(a) the penalty of reclusion perpetua, when the law violated makes
use of the nomenclature of the penalties of the Revised Penal Code;
or
xxxx
SECTION 3. Persons convicted of offenses punished with reclusion
perpetua, or whose sentences will be reduced to reclusion
perpetua, by reason of this Act, shall not be eligible for parole
under Act No. 4103, otherwise known as the Indeterminate
Sentence Law, as amended.
It has also been held in People vs. Quiachon that R.A. No. 9346 has
retroactive effect, to wit:
The aforequoted provision of R.A. No. 9346 is applicable in this case
pursuant to the principle in criminal law,favorabilia sunt amplianda
adiosa restrigenda. Penal laws which are favorable to accused are
given retroactive effect. This principle is embodied under Article 22
of the Revised Penal Code, which provides as follows:
Retroactive effect of penal laws. - Penal laws shall have a
retroactive effect insofar as they favor the persons guilty of a
felony, who is not a habitual criminal, as this term is defined in Rule
5 of Article 62 of this Code, although at the time of the publication
of such laws, a final sentence has been pronounced and the convict
is serving the same.1wphi1

However, appellant is not eligible for parole because Section 3 of

R.A. No. 9346 provides that "persons convicted of offenses pushed
with reclusion perpetua, or whose sentences will be reduced
to reclusion perpetua by reason of the law, shall not be eligible for
parole."
Hence, in accordance with the foregoing, appellant should
only be sentenced to suffer reclusion perpetua without
eligibility for parole.35
The awards for damages also need to be modified. In People v.
Alberto Anticamara y Cabillo, et al.,36 the Court held that in
accordance with prevailing jurisprudence on heinous crimes where
the imposable penalty is death but reduced to reclusion perpetua
pursuant to R.A. No. 9346, the award of moral damages should be
increased fromP50,000.00 to P75,000.00, while the award for
exemplary damages, in view of the presence of aggravating
circumstances, should be P30,000.00.
WHEREFORE, the Decision of the Court of Appeals dated
December 15, 2005 in CA-G.R. CR-H.C. No. 00071 is
hereby AFFIRMED with the MODIFICATION that the penalty of
death imposed on accused-appellants isREDUCED to reclusion
perpetua without possibility of parole in accordance with R.A. No.
9346;
and INCREASINGthe
award
of
moral
damages
from P50,000.00 to P75,000.00, and the award of exemplary
damages fromP25,000.00 to P30,000.00. The rest of the award of
the Court of Appeals is hereby maintained.
SO ORDERED.

G.R. No. 166617

July 3, 2007

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
AGUSTIN ABELLERA y CAMANA, *** Respondent.
DECISION
CORONA, J.:
The subject of this petition for review is the decision of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 000971affirming respondent
Agustin Abellera y Camanas conviction by the Regional Trial Court
(RTC), Branch 275 of Las Pias City, 2 for statutory rape, two counts
of simple rape and attempted rape committed against his minor
daughters AAA and BBB.
The antecedent facts follow.
In 1986, then seven-year-old AAA was at home attending to the
laundry when respondent arrived drunk. When respondent tried to
grab her, she pushed him away but he was too strong for her.
Respondent undressed her, removed her underwear and forced

himself on her. She felt excruciating pain. Thereafter, respondent

warned her not to tell anybody what happened, otherwise he would
kill her.
On August 4, 1992, AAA, then already 14 years old, was with her
youngest sister when respondent instructed her to go home
immediately. The moment she arrived, respondent began
undressing her. Thereafter, he inserted his penis into AAAs vagina.
Pointing a knife at the latters neck, respondent warned her not to
tell anyone about the incident.

Criminal Case No. 97-0007-A for Violation of RA 7610 4 in relation to

Art. 3355 of the Revised Penal Code (RPC):
On or about the 4th day of August 1992 in the [M]unicipality of Las
Pias and within the jurisdiction of this Court, the [respondent],
being the father of [AAA], then a fourteen (14) year old minor,
through moral ascendancy and influence and by means of force
and intimidation, willfully, unlawfully, and feloniously have carnal
knowledge with [AAA] against her will and consent. 6
Criminal Case No. 96-0460 for rape:

In 1996, AAAs younger sister, BBB, went through the same ordeal
in respondents hands. On April 2, 1996, BBB was washing the
dishes at home when respondent arrived drunk and ordered her to
undress. Thereafter, he took off his clothes and dragged her inside
a room. She cried and pleaded with her father to stop but he
warned her not to refuse him otherwise he would kill her, her
mother and her siblings. Respondent then positioned himself on top
of her, sucked her breasts, inserted his fingers, then his penis, into
her. After the dastardly act, he told her to take a bath and go to
sleep.
On October 7, 1996, respondent sent BBBs brother on an errand.
After the boy left, he undressed her and forced her to lie down. She
begged respondent not to repeat what he had done to her in the
past but the latter took no heed. Instead, he again threatened to
kill her if she refused. She kicked respondent in the groin which
forced him to stand up in pain.
On the same day, BBB reported the incident to barangay officials.
Respondent was arrested and brought to the Las Pias police
station where he was detained. Subsequently, the following
Informations were filed against him:

On or before the 2nd day of April 1996, in the Municipality of Las

Pias and within the jurisdiction of this Court, the [respondent],
being the father of [BBB], a 14 year-old minor, through moral
ascendancy and influence and by means of force and intimidation,
willfully and unlawfully, and feloniously have carnal knowledge with
said minor against her will and consent.7
Criminal Case No. 96-0461 for attempted rape:
On or about the 7th day of October 1996, in the Municipality of Las
Pias and within the jurisdiction of this court, the [respondent],
being the father of 14 year-old [BBB] through moral ascendancy
and influence, and by means of force and intimidation willfully,
unlawfully and feloniously commenced the commission of rape
directly by overt acts by pulling [BBB] inside the bedroom of their
house, forcibly removing her panty, lying her down and placing
himself on top of her[,] removing his shorts with the manifest intent
of having carnal knowledge with her against her will but the
accused did not perform all the acts of execution which should have
produced the crime of rape by reason of some cause or accident
other than his own spontaneous desistance, that is, because the
complainant vigorously resisted and she was able to run away. 8

Criminal Case No. 97-0007 for statutory rape:

Sometime in 1986, in the Municipality of Las Pias and within the
jurisdiction of the Court, the [respondent], being the father of
[AAA], then a seven (7) year old minor, through moral ascendancy
and influence and by means of force and intimidation, willfully,
unlawfully, and feloniously [had] carnal knowledge with [AAA]
against her will and consent.3

Respondent pleaded not guilty to the charges. Thereafter, a joint

trial ensued.
Aside from AAAs and BBBs testimonies in court, the prosecution
presented their birth certificates proving their relationship to
respondent and establishing their ages during the rape incidents.
Respondent denied the accusations against him. In Criminal (Crim.)
Case Nos. 97-0007, 97-0007-A and 96-0460, he insisted it was

impossible for him to commit the crimes since his wife was always
at home. In Crim. Case No. 96-0461, he claimed that, on October 7,
1996, he was in his neighbors house fixing a karaoke appliance. He
later on "joined a drinking spree" there. According to respondent,
his daughters filed the cases only because they were angry at him
for not sending them to school.

This case was first brought to us on automatic review. However,

following People v. Mateo,10 we transferred it to the CA. There,
respondent assigned the following errors to the trial court: (1)
giving full credence to the testimonies of the complainants; (2)
rejecting his testimony, his wifes and youngest daughters and (3)
convicting him.

Respondents neighbor, Allan Alvero, corroborated respondents

testimony saying he was in his house on October 7, 1996.

In a decision dated January 21, 2005, the CA affirmed with

modification the trial courts decision convicting respondent. The
CA ruled:

AAAs and BBBs mother, youngest sister and aunt also testified in
respondents defense. According to them, the whole family
attended AAAs graduation on April 2, 1996 and, on October 7,
1996, BBB was not home but studying in Cabanatuan City.
After trial, the court a quo found respondent guilty of the charges.
The dispositive portion of its decision read:
WHEREFORE, in view of the foregoing, judgment is hereby rendered
finding the [respondent] AGUSTIN ABELLERA Y CAMANA GUILTY
beyond reasonable doubt in the Informations as follows:
a. of Rape in Criminal Case No. 96-0460 committed against
his daughter [BBB] in 1996 for which he is sentenced to
suffer the penalty of Death under Article 335 of the Revised
Penal Code as amended by Republic Act No. 7659;
b. of Statutory Rape in Criminal Case No. 97-0007
committed against his daughter [AAA] in 1986 for which he
is sentenced to suffer the penalty of [Reclusion Perpetua];
c. of Rape in Criminal Case No. 97-0007-A committed
against his daughter [AAA in 1992] for which he is
sentenced to suffer the penalty [Reclusion Perpetua]; and;
d. of Attempted Rape in Criminal Case No. 96-0461
committed against his daughter [BBB] in 1996 for which he
is sentenced to a prision term of fifteen (15) years of
Reclusion Temporal; and to pay [AAA] and [BBB] the amount
of P50,000.00 as moral damages; P75,000.00 as civil
indemnity; and P20,000.00 as exemplary damages; and
costs.9

The trial court correctly imposed upon [respondent] the penalty

corresponding to each case, save in Crim. Case No. 96-0461 where
[respondent] was charged with attempted rape of then [14-year old
BBB], i.e., by use of force and intimidation. For said crime, the trial
court sentenced him to a prison term of fifteen (15) years
of reclusion temporal.
Under paragraph 1, Article 335, of the Revised Penal Code, the
penalty for the crime of rape is reclusion perpetua. According to
Article 57 the penalty lower by two degrees than that prescribed
by law for the consummated felony shall be imposed upon the
principals in an attempt to commit a felony. Following the
graduated scale in Article 71the penalty imposable upon
[respondent] in the attempted rape is prision mayor. Absent any
modifying circumstance, the maximum term of the indeterminate
penalty shall be taken from the medium period of prision mayor or
from 8 years and 1 day to 10 years; while the minimum term is one
degree lower than prision mayor, i.e., prision correccional, from 6
months and 1 day to 6 years.
Moreover, the impositions by the trial court of the civil liabilities
[need] clarification and modification. In line with the current
jurisprudence, civil indemnity is imposed without need of proof
other than the fact of the commission of the offense. Moral
damages should be awarded taking into account that [AAA] and
[BBB] were minors at the time of rape, and considering too[,] the
immeasurable havoc on their female psyche as a result of the
abominable crimes.
For the rapes committed against [AAA] in Crim. Case Nos. 97-0007
and 97-0007-A, [respondent] shall be held to pay her P75,000.00
and P50,000.00,
respectively,
as
civil
indemnity
and
another P50,000.00 as moral damages in each case, or the total
amount of P225,000.00. For the simple rape committed against

[BBB] in Crim. Case 96-0460, the sum of P50,000.00 each as civil

indemnity and as moral damages; and for the attempted rape
against her in Crim. Case No. 96-0461, the amount of P25,000.00
representing the civil indemnity and the like sum as moral damages
--- are imposed [respectively] upon [respondent].

q: Where were you then?

WHEREFORE, the appealed Joint Decision of conviction

is AFFIRMED, finding [respondent] AGUSTIN ABELLERA y CAMANA
guilty of rape as separately charged in the four (4) Informations.
However, in Crim. Case No. 96-0461, the penalty is MODIFIED in
that he is sentenced to suffer the indeterminate penalty of [t]wo (2)
[y]ears and [f]our months of prision correccional, as minimum, to
[e]ight (8) [y]ears and [o]ne day of prision mayor, as maximum.
The civil liabilities of [respondent] are MODIFIED, to the extent
that he is hereby ordered to pay the rape victims, as follows:

a: I was fixing our laundry when he grabbed me.

a: I was at our house, sir.

q: What happened when your father arrived on that particular time?

q: What did you do when your father grabbed you while fixing your
clothes?
a: I resisted, sir.
q: What did your father do when you resisted?

a) for the statutory rape against [AAA] in Crim. Case No. 970007, the
sum
of P75,000.00
as
civil
indemnity
and P50,000.00 as moral damages;

a: He forced me to undress including my panty, sir.

b) for the simple rape against [AAA] in Crim. Case No. 970007-A, the sum of P50,000.00 as civil indemnity and
P50,000.00 as moral damages; and

a: Yes, sir.

c) for the attempted rape against [BBB] in Crim. Case No.

96-0461, the sum of P25,000.00 as civil indemnity
and P25,000.00 as moral damages.
SO ORDERED.11
Respondent now assails the CA decision.
After a careful study of this case, we affirm respondents conviction
for statutory rape, 12 two counts of simple rape13 and attempted
rape.14
Respondents guilt was clear beyond the shadow of a doubt.
In Crim. Case No. 97-0007 (statutory rape), AAA testified:
q: What happened during that year 1986 if you remember?
a: It was nighttime[.] I do not remember the [exact] time, our father
arrived and he was drunk.

q: Did he succeed in undressing you?

q: What happened after your father was able to remove your dress
and panty?
a: He forcibly entered his penis, sir. 15
In Crim. Case No. 97-0007-A (simple rape), AAA stated:
q: Madam Witness, on the night of August 4, 1992, do you
remember where were you then?
a: Yes, sir.
xxx
q: What were you doing on that particular date and time?
a: I just arrived from selling balut, sir.
q: Madam Witness, while you were inside your house during that
particular date and time, do you remember what happened next, if
any?

a: Yes, sir.
xxx

a: He continued and forced his penis [into] my vagina until he

succeeded.16
In Crim. Case No. 96-0460 (simple rape), BBB narrated:

q: What happened next?

a: When we reached the house[,] I was shocked because he
suddenly entered my room and undressed me.

q: Madam Witness, at about 8 oclock in the evening of April 2,

1996, do you remember where were you then? xxx
a: On April 2[,] my father arrived drunk.

q: What did you do when your father undressed you?

q: What happened next after your father arrived drunk?

a: I told him not to do what he was thinking.

a: He asked me to undress myself, sir.
q: What did your father do when you [told] him not to do what he
intended to do?

xxx

a: He told me, "I will kill you if you will not obey me."

q: After you undressed yourself what did your father do?

q: What did you do when your father said [he will kill you]?

a: He also undressed himself.

a: I was crying and begging. (Witness started to cry).

xxx

xxx

q: Madam Witness, what did your father do when removed his

clothes?

q: What did your father do after that?

a: He brought me inside the room, sir.

a: [H]e removed my panty and he forcibly inserted his penis [into]

my private parts.

xxx

q: Was he able to insert his penis to your private parts?

q: What did you do when your father pulled you or drag you?

a: Yes, sir.

a: I was begging him not to do what he [intended] to do.

q: What did you do when your father inserted his penis to your
vagina?

xxx

a: I tried to resist and prevent him at the same [time,] I was crying
and begging him not to do [it].
q: What else happened after you resisted?

q: When you say he proceeded to [do] his intention, what do you

mean by that?
a: He put his body on top of me.
q: What happened when your father placed his body on top of you?

a: He sucked my breast, sir.

a: He laid me down, sir.

q: What else did your father do to you?

xxx

a: He inserted his finger in my private parts, sir.

q: After your father pulled you down, what happened next?

q: What happened next when your father inserted his finger into
your organ?

a: He [undressed] himself, sir.

a: He likewise inserted his penis, sir. 17

In Crim. Case No. 96-0461 (attempted rape), BBB said:

q: How about you[,] what were you doing when your father was
undressing himself?
a: I was begging to him not to repeat what he did to me in the past,
sir.

q: Madam Witness, on October 7, 1996, at about 7 o clock in the

evening, do you remember where were you then?

xxx

a: I was at home, sir.

q: What did your father tell you, if any?

q: What were you doing inside your house?

a: "If you do not follow, I will kill you."

a: I was fixing our clothes.

q: What did you do when your father [told you] those words?

q: When you were fixing your clothes, do you remember

a: Because I did not want the same thing to happen to me again[,] I

kicked him.

if anything unusualhappened?

xxx

a: Yes, sir.
q: What did he do when you kicked him?
xxx

a: He stood up, sir.18

q: [W]here there other persons in the household?

a: Only my brother but he was sent for an errand.
xxx
q: After your father asked your brother to leave the house, do you
remember what happened next?
a: He forcibly removed my panty, sir.
q: What did you do when your father removed your panty?

AAAs and BBBs testimonies in the trial court were telling. There is
no question respondent indeed committed the crimes charged. His
contention that the lower courts erred in giving full credence to his
daughters testimonies deserves no merit.
Testimonies of victims of tender age are credible, more so if they
are without any motive to falsely testify against their
offender.19 Their revelations that they were raped, coupled with
their willingness to undergo public trial where they could be
compelled to describe the details of the assault on their dignity by
their own father, cannot be easily dismissed as concoctions. 20 It
would be the height of moral and psychological depravity if they

were to fabricate sordid tales of sexual defloration (which could put

him behind bars for the rest of his life) if they were not true. 21
Respondents alibi that he could not have committed the crimes in
the presence of his wife was utterly lame. It was disproven by the
categorical and positive identification by his daughters that he was
their rapist. Besides, there is no rule that rape can only be
committed in seclusion.22
Respondents contention that he was allegedly in his neighbors
house during the October 7, 1996 rape incident was likewise
untenable. For this defense of alibi to prosper, respondent should
have proven that he was in some place where it was physically
impossible for him to be at the locus criminis during the
commission of the crimes.23In this case, even assuming that
respondent was in his neighbors place, he was nevertheless still
near his house and his daughters.
Similarly, not even the testimonies of respondents wife and
youngest daughter sufficed to negate the overwhelming evidence
pointing to respondent as the sole perpetrator of the crimes.
Rape is committed by having carnal knowledge of a woman under
any of the following circumstances: (1) by using force or
intimidation; (2) when the woman is deprived of reason or
otherwise unconscious and (3) when the woman is under 12 years
of age.24 The third instance is "statutory rape" or carnal knowledge
of a woman below 12 years old.25
On the applicable penalties, we affirm the imposition of reclusion
perpetua in Crim. Case Nos. 97-0007 and 97-0007-A (for simple
rape).26 In Crim. Case No. 96-0460,27 however, the penalty
of reclusion perpetua without eligibility for parole should instead be
imposed pursuant to RA 9346 28 which prohibits the imposition of
the death penalty.29
In Crim. Case No. 96-0461, we agree with the CA that the proper
penalty for attempted rape is the penalty lower by two degrees
than that prescribed by law for the consummated felony.
In the scale of penalties in Article 71 30 of the RPC, the penalty two
degrees lower than death is reclusion temporal. However, with the
abolition of the death penalty by RA 9346, the highest remaining
penalty is reclusion perpetua. Consequently, the penalty lower by

two degrees than reclusion perpetua is prision mayor, from which

the maximum penalty for attempted rape shall now be taken. 31 As
the CA correctly imposed, "absent any modifying circumstance, the
maximum term of the indeterminate penalty shall be taken from
the medium period of prision mayor or from 8 years and 1 day to
10 years; while the minimum term is one degree lower than prision
mayor, i.e.,prision correccional, from 6 months and 1 day to 6
years."32
On damages, we see no error in the CAs award of civil indemnity
and moral damages in Crim. Case Nos. 97-0007 and 97-0007-A.
However, in Crim. Case No. 96-0460, since the death penalty was
originally imposed on respondent, the award of civil indemnity
should
be
increased
to P75,00033 and
moral
damages
34
to P75,000. Exemplary damages of P30,000 must also be awarded
in these cases to deter others with perverse tendencies from
sexually abusing young girls of their own flesh and
blood.351avvphi1
Moreover, in the light of recent jurisprudence, 36 the award of civil
indemnity in Crim. Case No. 96-0461 should be increased
to P30,000. Exemplary damages of P10,000 are likewise in order. 37
WHEREFORE, the assailed decision of the Court of Appeals in CAG.R.
CR-HC
No.
00097
is
hereby AFFIRMED
with
MODIFICATION. The
Court
finds
respondent
Agustin
Abellera y Camana GUILTY of:
(1)statutory rape in Crim. Case No. 97-0007 for which he is
sentenced to suffer the penalty of reclusion perpetua and
ordered to pay AAA P75,000 as civil indemnity, P50,000 as
moral damages and P30,000 as exemplary damages;
(2) simple rape in Crim. Case No. 97-0007-A for which he is
sentenced to suffer the penalty of reclusion perpetua and
ordered to pay AAA P50,000 as civil indemnity, P50,000 as
moral damages and P30,000 as exemplary damages;
(3) simple rape in Crim. Case No. 96-0460 for which he is
sentenced
to
suffer
the
penalty
of reclusion
perpetua without eligibility for parole and ordered to pay
BBB P75,000 as civil indemnity, P75,000 as moral damages
and P30,000 as exemplary damages;

(4) attempted rape in Crim. Case No. 96-0461 for which he

is sentenced to suffer the minimum penalty of 2 years and 4
months of prision correccional to 8 years and 1 day
of prision mayor as maximum. He is likewise ordered to pay
BBB P30,000 as civil indemnity, P25,000 as moral damages
and P10,000 as exemplary damages.
SO ORDERED.

penalty of two years, four months and one day of prision

correccional should also be imposed upon him.
The question whether, in imposing the additional penalty on the
appellant as habitual delinquent, recidivism, as an aggravating
circumstance inherent of habitual delinquency, should still be taken
into consideration in filing the principal penalty, has already been
expressly decided in the affirmative by this court in People vs.
Melendrez (59 Phil., 154).
There is no doubt that the purpose of the law in imposing additional
penalty on a habitual delinquent is to punish him more severely.
However, the result would be otherwise if, for imposing the
additional penalty, recidivism could not be considered as
aggravating circumstance in fixing the principal penalty. This may
be clearly understood from the following example.

G.R. No. L-43556

December 18, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
HONORATO ESPINA Y REAL, defendant-appellant.
AVANCEA, C.J.:
The appellant was charged in the lower court with the crime of theft
of articles valued at P585.15 and, having pleaded guilty, was
sentenced to six months and one day of prision correccional and,
being a habitual delinquent, to an additional penalty of two years,
four months and one day of prision correccional.
The principal penalty imposed by the court is not correct. The
amount stolen is more than P200 but does not exceed P6,000 and,
under article 309, subsection 3, of the Revised Penal Code, the
penalty to be imposed should be prision correccional in its
minimum and medium periods. Being a recidivist and having
pleaded guilty, both circumstances should compensate each other
and the penalty should he imposed in its medium period, that is,
one year, eight months and twenty-one days. As the appellant is a
habitual delinquent, this being his third conviction, the additional

An accused who has already been previously convicted twice of the

crime of theft, having served the sentences imposed upon him
commits, within ten years after service of his last sentence, the
crime of robbery, inflicting on occasion thereof some of the physical
injuries punished in subsection 1 of article 263 (article 294,
subsection 2, of the Revised Penal Code). This crime is punished
with reclusion temporal in its medium period to reclusion
perpetua. Being a habitual delinquent, the penalty of two years,
four months and one day of prision correccionalshould be imposed
upon him in addition to the principal penalty. Without taking into
consideration the aggravating circumstance of recidivism, the
principal penalty to be imposed upon him would be seventeen
years, four months and one day. Adding the additional to this
principal penalty, the resulting penalty would be nineteen years,
eight months and two days. However, if the additional penalty for
habitual delinquency were not imposed, by imposing the principal
penalty, taking into consideration the aggravating circumstance of
recidivism, the penalty would bereclusion perpetua which is the
maximum period of the penalty prescribed by law, or thirty years, if
he is pardoned thereafter.
Let us suppose that a mitigating circumstance was present in the
foregoing example. If the aggravating circumstance of recidivism is
not to be taken into consideration for imposing the additional
penalty for habitual delinquency, the mitigating circumstance
would require that the penalty prescribed by law be imposed in its
minimum period, or fourteen years, eight months and one day.

Adding to this the additional penalty of two years, four months and
one day, the penalty would be seventeen years and two days.
If the additional penalty is not imposed and the aggravating
circumstance of recidivism is taken into account, the latter would
compensate the mitigating circumstance and the penalty should
have to be imposed in its medium period, or seventeen years, four
months and one day, which would be four months more severe.
Let us suppose that instead of one mitigating circumstance, two
were present in this example. Considering the aggravating
circumstance of recidivism, it would have to be compensated by
one mitigating circumstance, leaving another, and the penalty to
be imposed would be the minimum period, or fourteen years, eight
months and one day of reclusion temporal. If the aggravating
circumstance of recidivism were not taken into consideration for
imposing the additional penalty, the two mitigating circumstances
would have to be taken into consideration and the penalty next
lower in degree imposed in any of its periods, which mat be the
minimum, according to the circumstances of the case, or eight
years and one day. Adding to this the additional penalty of two
years, four months and two days, or two years, three months and
twenty-nine days less.1awphil.net
Applying these examples to other cases of habitual delinquency,
the result would, more or less, be the same.
According to this, if the theory counter to that adopted by this court
in People vs. Melendrez, supra, were to be followed, the imposition
of the additional penalty would make the penalty lighter, instead of
more severe, contrary to the purpose of the law.
Wherefore, it being understood that the principal penalty imposed
upon the appellant is one year, eight months and twenty-one days,
the appealed judgment is affirmed in all other respects, with other
costs.
So Ordered.

recovered, and being a habitual delinquent, the additional penalty

of two years, four months and one day ofprision correccional with
the corresponding accessory penalties was also imposed upon him
in conformity with the provisions of subsection 5, paragraph (a), of
article 62 of the Revised Penal Code. Not agreeing with said
penalties he appealed from the sentence undoubtedly for the
review of his case.
The appellant's counsel de oficio in this instance, considering
the appealed sentence in accordance with law, recommends the
affirmance thereof in all respects in his short brief.
Due to the amount involved, the theft imputed to the
appellant is punishable with arresto mayor in its minimum and
medium periods the duration of which is from one month and one
day to four months (art. 309, subsection 6, Revised Penal Code);
and the minimum period of said penalty is from one month and one
day to two months. It appears therefrom that the penalty
questioned by the appellant is the minimum period, as no other
less penalty could have been imposed upon him because said
penalty in itself already constitutes the minimum limit under the
law. The reasons which prompted the lower court to be lenient with
the appellant were undoubtedly his voluntary confession before the
prosecution presented its evidence, which constitutes a mitigating
circumstance (art. 13, subsection 7, Revised Penal Code), and the
apparent absence of all allegation in the information of some
aggravating circumstance that may compensate said mitigating
circumstance (art. 63, rule 1, Revised Penal Code).
G.R. No. L-45198

October 31, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
BASILIO DE JESUS Y JAVIER, defendant-appellant.
DIAZ, J.:
Basilio de Jesus y Javier was convicted by the Court of First
Instance of Manila in criminal case No. 52270 of said court, of the
theft of an umbrella and a buri hat valued at P2.65 committed,
according to the information, on April 28, 1936. He was therein
sentenced to one month and one day of arresto mayor with the
accessory penalties, to indemnify Francisco Liwanag in the sum of
P2.50 representing the value of the umbrella which was not

The imposition of the additional penalty of two years, four

months and one day upon the appellant is justified by his own
admission of guilt because the rule is well settled in this jurisdiction
that when one pleads guilty of the crime imputed to him in an
information, it is understood that he admits all the material facts
alleged therein (U. S. vs. Barba, 29 Phil., 206; U.S. vs. Santiago, 35
Phil., 20), not excluding those alleging his former convictions of
other crimes (U.S. vs. Burlado, 42 Phil., 72); and in the information
filed against the appellant, it was alleged:
That the said accused is a habitual delinquent within
the purview of rule 5 of article 62 of the Revised Penal Code,
he having been convicted by final judgments of competent
courts of the following crimes: On January 4, 1933, he was
convicted of theft and sentenced to one month and one day
of imprisonment, and on November 18, 1935, he was

convicted of qualified theft and sentenced to serve two

months and one day of imprisonment, the date of his last
release being January 10, 1936.
The Solicitor-General, taking advantage of the allegation in
the information that the appellant is a habitual delinquent,
recommends that instead of affirming his principal penalty of one
month and one day of arresto mayor, it be increased to the
minimum of the medium period of that prescribed by law for his
crime, or two months and one day of arresto mayor, considering
the aggravating circumstance of recidivism established but
compensated by the mitigating circumstance of voluntary
confession. His argument appears to be as follows: Habitual
delinquency necessarily implies recidivism or former conviction, at
least more than once. The appellant having admitted in his
confession that he is a habitual delinquent for having committed
theft for the third time within the period prescribed by law, he must
necessarily be considered a recidivist. This naturally raises the
question whether or not in this case the circumstance of recidivism
can be and must be twice taken into consideration against the
appellant, first as an aggravating circumstance although
compensated by another mitigating circumstance, and second as a
qualifying circumstance or one inherent, as the case may be, in
habitual delinquency. If such an opinion were sustained, would not
an injustice be committed against the appellant by imposing two
penalties upon him, the principal and the additional, in a period
which must be determined by taking into consideration one and the
same fact or circumstance, which is recidivism? There is no express
provision of law prohibiting it. On the contrary, as to the principal
penalty, there is the rule that in cases in which the penalty
prescribed by law contains three periods, the courts must take into
consideration, in the application of said penalty, the aggravating
mitigating circumstances established at the trial if they do not
appear to be compensated by other circumstances; and there is
also the rule that when only an aggravating circumstance is
present the former, that is the principal penalty, must be imposed
in its maximum period (art. 64, Revised Penal Code) ; and in People
vs. Aguinaldo (47 Phil., 728), this court has stated, and it is
reiterated in People vs. Melendrez (59 Phil., 154), that the
aggravating circumstance of recidivism, even in cases of habitual
delinquency, should be taken into consideration in the application
of the principal penalty in the corresponding period.
As to the additional penalty, if we must rely upon the spirit
and letter of the law, we would say that the purpose of the latter in

establishing it was to prevent those who for the second time or

more commit the crimes enumerated in the last paragraph of
article 62 of the Revised Penal Code from relapsing thereafter at
least during the period fixed thereby, as if to tell them: "If you
relapse, the penalty corresponding to your last offense will be
imposed upon you plus another additional penalty ranging
from prision correccional in its medium and maximum periods
to prision mayor in its maximum period and reclusion temporal in
its minimum period, according to your recidivism, that is, the third,
fourth, fifth or more times."
When the law has prescribed the additional penalty for
habitual delinquency in a manner susceptible of division into
periods and has enumerated it among the penalties that may be
imposed by incorporating it into the Revised Penal Code, it was for
no other purpose than that all the circumstances present in every
case be taken into consideration in order to avoid arbitrariness in
the determination of the period in which said penalty should be
imposed. It would be arbitrary, in the absence of any circumstance,
to impose the maximum of the additional penalty upon a habitual
delinquent, as it would also be arbitrary to impose the minimum
thereof upon him when there are circumstances justifying its
application in the maximum period.
We should not lose sight of the fact that when the Legislature
incorporated the provision relative to habitual delinquency into the
Revised Penal Code, it was aware this, at least, is the
presumption of law that recidivism was, as it continues to be in
the majority of cases to this date, an aggravating circumstance the
effect of which, as the name itself implies, is to aggravate the
criminal responsibility of the delinquent. But unlike other
circumstances, as treachery, evident premeditation, sex, craft,
relationship, public position, dwelling, not to mention several others
so as not to be tedious, which may be aggravating, qualifying and
inherent as the case may be, recidivism is and can be nothing else
but an aggravating circumstance. This is the general rule; but as
such it certainly is not without its exception as other general rules.
The exception is found in the case of habitual delinquency, as
recidivism is precisely one of those that constitute and give it
existence, the other being former conviction, but it is not necessary
that both be present at the same time.
Treachery, evident premeditation and relationship are
aggravating circumstances in crimes against persons and when one
of them is present, for instance, in a case of homicide, the crime

committed ceases to be homicide and becomes murder or

parricide, as the case may be. In such cases, that of the said three
circumstances which has raised the crime committed from the
category of homicide to that of murder or parricide, ceases to be an
aggravating circumstance to become a qualifying circumstance
and, once accepted as such, it cannot, by virtue of the legal
maxim non bis in idem be considered as an aggravating
circumstance at the same time (U. S. vs. Estopia, 28 Phil., 97; U.
S. vs. Vitug, 17 Phil., 1; Decision of the Supreme Court of Spain of
November 13, 1871). So must recidivism be considered in habitual
delinquency. We have taken it into consideration in imposing the
principal penalty and we cannot again take it into consideration in
imposing the additional penalty because inasmuch as recidivism is
a qualifying or inherent circumstance in habitual delinquency, it
cannot be considered an aggravating circumstance at the same
time. Consequently, the additional penalty to be imposed upon the
appellant must be the minimum of the prescribed by law as, with
the exception of recidivism, no other circumstance or fact justifying
the imposition of said penalty in a higher period has been present.

crime of theft for the third time before the expiration of ten years
from the commission of his former crime.

The proposition based on rules 1 and 2 of article 62 of the

Revised Penal Code, that if recidivism is considered an inherent or
qualifying circumstance of habitual delinquency it should not be
taken into account in the imposition of the principal penalty, seems
to us untenable because it is based upon the erroneous assumption
that the habitual delinquency is a crime. It is simply a fact or
circumstance which, if present in a given case with the other
circumstances enumerated in rule 5 of said article, gives rise to the
imposition of the additional penalties therein prescribed. This is all
the more true because the law itself clearly provides that the
habitual delinquent must be sentenced to the penalty provided by
law for his last crime in addition to the additional penalty he
deserves.lwphi1.nt

REGALADO, J.:

In view of the foregoing facts and considerations and

furthermore taking into account the provisions of article 62, rule 5,
paragraph (a), of the Revised Penal Code, we deem it clear that the
appellant deserves the additional penalty imposed by the lower
court upon him. The penalty prescribed by said rule is prision
correccionalin its medium and maximum periods, or from two
years, four months and one day to six years. What was imposed
upon the appellant is the minimum of said penalty and he has
absolutely no reason to complain because after all he can not be
exempt from the additional penalty by reason of his admission at
the trial that he is a habitual delinquent, having committed the

In resume we hold that the principal penalty of the appellant

must be two months and one day of arresto mayor. We therefore
modify the appealed sentence in this sense and so modified it is
affirmed in all other respects, with the costs to the appellant. So
ordered.

G.R. No. 93028 July 29, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARTIN SIMON y SUNGA, respondent.

Herein accused-appellant Martin Simon y Sunga was charged on

November 10, 1988 with a violation of Section 4, Article II of
Republic
Act
No. 6425, as amended, otherwise known as the Dangerous Drugs
Act of 1972, under an indictment alleging that on or about October
22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four
tea bags of marijuana to a Narcotics Command (NARCOM) poseurbuyer in consideration of the sum of P40.00, which tea bags, when
subjected to laboratory examination, were found positive for
marijuana. 1
Eventually arraigned with the assistance of counsel on March 2,
1989, after his rearrest following his escape from Camp Olivas, San
Fernando, Pampanga where he was temporarily detained, 2 he
pleaded not guilty. He voluntarily waived his right to a pre-trial
conference, 3 after which trial on the merits ensued and was duly
concluded.
I
The evidence on record shows that a confidential informant, later
identified as a NARCOM operative, informed the police unit at Camp
Olivas, San Fernando, Pampanga, of the illegal drug activities of a

certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt.

Francisco Bustamante, Commanding Officer of the 3rd Narcotics
Regional Unit in the camp, then formed a buy-bust team composed
of Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and
Sgt. Domingo Pejoro, all members of the same unit. After securing
marked money from Bustamante, the team, together with their
informant, proceeded to Sto. Cristo after they had coordinated with
the police authorities andbarangay officers thereof. When they
reached the place, the confidential informer pointed out appellant
to Lopez who consequently approached appellant and asked him if
he had marijuana. Appellant answered in the affirmative and Lopez
offered to buy two tea bags. Appellant then left and, upon returning
shortly thereafter, handed to Lopez two marijuana tea bags and
Lopez gave him the marked money amounting to P40.00 as
payment.
Lopez
then
scratched
his
head
as
a
pre-arranged signal to his companions who were stationed around
ten to fifteen meters away, and the team closed in on them.
Thereupon, Villaruz, who was the head of the back-up team,
arrested appellant. The latter was then brought by the team to the
3rd Narcotics Regional Unit at Camp Olivas on board a jeep and he
was placed under custodial investigation, with Sgt. Pejoro as the
investigator. 4
Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw
the deal that transpired between Lopez and the appellant. He also
averred that he was the one who confiscated the marijuana and
took the marked money from appellant. 5
Sgt. Domingo Pejoro, for his part, declared that although he was
part of the buy-bust team, he was stationed farthest from the rest
of the other members, that is, around two hundred meters away
from his companions. He did not actually see the sale that
transpired between Lopez and appellant but he saw his teammates
accosting appellant after the latter's arrest. He was likewise the one
who conducted the custodial investigation of appellant wherein the
latter was apprised of his rights to remain silent, to information and
to counsel. Appellant, however, orally waived his right to counsel. 6
Pejoro also claimed having prepared Exhibit "G", the "Receipt of
Property Seized/Confiscated" which appellant signed, admitting
therein the confiscation of four tea bags of marijuana dried leaves
in his possession. Pejoro likewise informed the court below that,
originally, what he placed on the receipt was that only one
marijuana leaf was confiscated in exchange for P20.00. However,
Lopez and Villaruz corrected his entry by telling him to put "two",

instead of "one" and "40", instead of "20". He agreed to the

correction since they were the ones who were personally and
directly involved in the purchase of the marijuana and the arrest of
appellant. 7
Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined
appellant at 5:30 p.m. of the day after the latter's apprehension,
and the results were practically normal except for his relatively high
blood pressure. The doctor also did not find any trace of physical
injury on the person of appellant. The next day, he again examined
appellant
due
to
the
latter's
complaint
of
gastro-intestinal pain. In the course of the examination, Dr. Calara
discovered that appellant has a history of peptic ulcer, which
causes him to experience abdominal pain and consequently vomit
blood. In the afternoon, appellant came back with the same
complaint but, except for the gastro-intestinal pain, his physical
condition remained normal. 8
As expected, appellant tendered an antipodal version of the
attendant facts, claiming that on the day in question, at around
4:30 p.m., he was watching television with the members of his
family in their house when three persons, whom he had never met
before suddenly arrived. Relying on the assurance that they would
just inquire about something from him at their detachment,
appellant boarded a jeep with them. He was told that they were
going to Camp Olivas, but he later noticed that they were taking a
different route. While on board, he was told that he was a pusher so
he attempted to alight from the jeep but he was handcuffed
instead. When they finally reached the camp, he was ordered to
sign some papers and, when he refused, he was boxed in the
stomach eight or nine times by Sgt. Pejoro. He was then compelled
to affix his signature and fingerprints on the documents presented
to him. He denied knowledge of the P20.00 or the dried marijuana
leaves, and insisted that the twenty-peso bill came from the pocket
of Pejoro. Moreover, the reason why he vomited blood was because
of the blows he suffered at the hands of Pejoro. He admitted having
escaped from the NARCOM office but claimed that he did so since
he could no longer endure the maltreatment to which he was being
subjected. After escaping, he proceeded to the house of his uncle,
Bienvenido Sunga, at San Matias, Guagua, reaching the place at
around 6:30 or 7:30 p.m. There, he consulted a quack doctor and,
later, he was accompanied by his sister to the Romana Pangan
District Hospital at Floridablanca, Pampanga where he was confined
for three days. 9

Appellant's brother, Norberto Simon, testified to the fact that

appellant was hospitalized at Floridablanca, Pampanga after
undergoing abdominal pain and vomiting of blood. He likewise
confirmed that appellant had been suffering from peptic ulcer even
before the latter's arrest. 10 Also, Dr. Evelyn Gomez-Aguas, a
resident physician of Romana Pangan District Hospital, declared
that she treated appellant for three days due to abdominal pain,
but her examination revealed that the cause for this ailment was
appellant's peptic ulcer. She did not see any sign of slight or serious
external injury, abrasion or contusion on his body. 11
On December 4, 1989, after weighing the evidence presented, the
trial court rendered judgment convicting appellant for a violation of
Section 4, Article II of Republic Act No. 6425, as amended, and
sentencing him to suffer the penalty of life imprisonment, to pay a
fine of twenty thousand pesos and to pay the costs. The four tea
bags of marijuana dried leaves were likewise ordered confiscated in
favor of the Government. 12
Appellant now prays the Court to reverse the aforementioned
judgment of the lower court, contending in his assignment of errors
that the latter erred in (1) not upholding his defense of "frame-up",
(2)
not
declaring
Exhibit
"G"
(Receipt
of
Property
Seized/Confiscated) inadmissible in evidence, and (3) convicting
him of a violation of the Dangerous Drugs Act. 13
At the outset, it should be noted that while the People's real theory
and evidence is to the effect the appellant actually sold only two
tea bags of marijuana dried leaves, while the other two tea bags
were merely confiscated subsequently from his possession, 14 the
latter not being in any way connected with the sale, the information
alleges that he sold and delivered four tea bags of marijuana dried
leaves. 15 In view thereof, the issue presented for resolution in this
appeal is merely the act of selling the two tea bags allegedly
committed by appellant, and does not include the disparate and
distinct issue of illegal possession of the other two tea bags which
separate offense is not charged herein. 16
To sustain a conviction for selling prohibited drugs, the sale must be
clearly and unmistakably established. 17 To sell means to give,
whether for money or any other material consideration. 18 It must,
therefore, be established beyond doubt that appellant actually sold
and delivered two tea bags of marijuana dried leaves to Sgt. Lopez,
who acted as the poseur-buyer, in exchange for two twenty-peso
bills.

After an assiduous review and calibration of the evidence adduced

by both parties, we are morally certain that appellant was caught
in flagrante delicto engaging in the illegal sale of prohibited drugs.
The prosecution was able to prove beyond a scintilla of doubt that
appellant, on October 22, 1988, did sell two tea bags of marijuana
dried leaves to Sgt. Lopez. The latter himself creditably testified as
to how the sale took place and his testimony was amply
corroborated by his teammates. As between the straightforward,
positive and corroborated testimony of Lopez and the bare denials
and negative testimony of appellant, the former undeniably
deserves greater weight and is more entitled to credence.
We are aware that the practice of entrapping drug traffickers
through the utilization of poseur-buyers is susceptible to mistake,
harassment, extortion and abuse. 19 Nonetheless, such causes for
judicial apprehension and doubt do not obtain in the case at bar.
Appellant's entrapment and arrest were not effected in a haphazard
way, for a surveillance was conducted by the team before the
buy-bust operation was effected. 20 No ill motive was or could be
attributed to them, aside from the fact that they are presumed to
have regularly performed their official duty. 21 Such lack of dubious
motive coupled with the presumption of regularity in the
performance of official duty, as well as the findings of the trial court
on the credibility of witnesses, should prevail over the self-serving
and uncorroborated claim of appellant of having been
framed, 22 erected as it is upon the mere shifting sands of an alibi.
To
top
it
all,
appellant
was
caught
red-handed delivering prohibited drugs, and while there was a
delimited chance for him to controvert the charge, he does not
appear to have plausibly done so.
When the drug seized was submitted to the Crime Laboratory
Service of the then Philippine Constabulary-Integrated National
Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn
Salangad, a forensic chemist therein, 23 confirmed in her Technical
Report No. NB-448-88 that the contents of the four tea bags
confiscated from appellant were positive for and had a total weight
of 3.8 grams of marijuana. 24 Thus, the corpus delicti of the crime
had been fully proved with certainty and conclusiveness. 25
Appellant would want to make capital of the alleged inconsistencies
and improbabilities in the testimonies of the prosecution witnesses.
Foremost, according to him, is the matter of who really confiscated
the marijuana tea bags from him since, in open court, Pejoro
asserted that he had nothing to do with the confiscation of the

marijuana, but in the aforementioned "Receipt of Property

Seized/Confiscated," he signed it as the one who seized the
same. 26
Suffice it to say that whether it was Villaruz or Pejoro who
confiscated the marijuana will not really matter since such is not an
element of the offense with which appellant is charged. What is
unmistakably clear is that the marijuana was confiscated from the
possession of appellant. Even, assuming arguendo that the
prosecution committed an error on who actually seized the
marijuana from appellant, such an error or discrepancy refers only
to a minor matter and, as such, neither impairs the essential
integrity of the prosecution evidence as a whole nor reflects on the
witnesses' honesty. 27 Besides, there was clearly a mere imprecision
of language since Pejoro obviously meant that he did not take part
in the physical taking of the drug from the person of appellant, but
he participated in the legal seizure or confiscation thereof as the
investigator of their unit.
Next, appellant adduces the argument that the twenty-peso bills
allegedly confiscated from him were not powdered for fingerprinting purposes contrary to the normal procedure in buy-bust
operations. 28 This omission has been satisfactorily explained by
Pfc. Virgilio Villaruz in his testimony, as follows:
Q: Is it the standard operating
procedure of your unit that in
conducting such operation you do not
anymore provide a powder (sic) on the
object so as to determine the
thumbmark or identity of the persons
taking hold of the object?

A: Our office is only adjacent to those

offices but we cannot make a request
for that powder because they,
themselves, are using that in their own
work, sir. 29
The foregoing explanation aside, we agree that the failure to mark
the money bills used for entrapment purposes can under no mode
of rationalization be fatal to the case of the prosecution because
the Dangerous Drugs Act punishes "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." 30 The
dusting of said bills with phosphorescent powder is only an
evidentiary
technique
for
identification
purposes,
which
identification can be supplied by other species of evidence.
Again, appellant contends that there was neither a relative of his
nor any barangay official or civilian to witness the seizure. He
decries the lack of pictures taken before, during and after his
arrest. Moreover, he was not reported to or booked in the custody
of any barangay official or police authorities. 31 These are absurd
disputations. No law or jurisprudence requires that an arrest or
seizure, to be valid, be witnessed by a relative, a barangay official
or any other civilian, or be accompanied by the taking of pictures.
On the contrary, the police enforcers having caught appellant
in flagrante delicto, they were not only authorized but were also
under the obligation to effect a warrantless arrest and seizure.

A: We were not able to put powder on

these denominations because we are
lacking that kind of material in our
office since that item can be
purchased only in Manila and only few
are producing that, sir.

Likewise, contrary to appellant's contention, there was an arrest

report prepared by the police in connection with his apprehension.
Said Booking Sheet and Arrest Report 32 states, inter alia, that
"suspect was arrested for selling two tea bags of suspected
marijuana dried leaves and the confiscation of another two tea
bags of suspected marijuana dried leaves." Below these remarks
was affixed appellant's signature. In the same manner, the receipt
for the seized property, hereinbefore mentioned, was signed by
appellant wherein he acknowledged the confiscation of the marked
bills from him. 33

Q: Is it not a fact that your office is

within (the) P.C. Crime Laboratory, CIS,
as well as the office of NICA?

However, we find and hereby declare the aforementioned exhibits

inadmissible in evidence. Appellant's conformance to these
documents are declarations against interest and tacit admissions of
the crime charged. They were obtained in violation of his right as a
person under custodial investigation for the commission of an

xxx xxx xxx

offense, there being nothing in the records to show that he was

assisted by counsel. 34 Although appellant manifested during the
custodial investigation that he waived his right to counsel, the
waiver was not made in writing and in the presence of
counsel, 35 hence whatever incriminatory admission or confession
may be extracted from him, either verbally or in writing, is not
allowable in evidence. 36 Besides, the arrest report is self-serving
and hearsay and can easily be concocted to implicate a suspect.
Notwithstanding the objectionability of the aforesaid exhibits,
appellant cannot thereby be extricated from his predicament since
his criminal participation in the illegal sale of marijuana has been
sufficiently proven. The commission of the offense of illegal sale of
prohibited drugs requires merely the consummation of the selling
transaction 37 which happens the moment the buyer receives the
drug from the seller. 38 In the present case, and in light of the
preceding discussion, this sale has been ascertained beyond any
peradventure of doubt.
Appellant then asseverates that it is improbable that he would sell
marijuana to a total stranger. 39 We take this opportunity to once
again reiterate the doctrinal rule that drug-pushing, when done on
a small scale as in this case, belongs to that class of crimes that
may be committed at any time and in any place. 40 It is not contrary
to human experience for a drug pusher to sell to a total
stranger, 41 for what matters is not an existing familiarity between
the buyer and seller but their agreement and the acts constituting
the sale and delivery of the marijuana leaves. 42 While there may be
instances where such sale could be improbable, taking into
consideration the diverse circumstances of person, time and place,
as well as the incredibility of how the accused supposedly acted on
that occasion, we can safely say that those exceptional particulars
are not present in this case.
Finally, appellant contends that he was subjected to physical and
mental torture by the arresting officers which caused him to escape
from Camp Olivas the night he was placed under custody. 43 This he
asserts to support his explanation as to how his signatures on the
documents earlier discussed were supposedly obtained by force
and coercion.
The doctrine is now too well embedded in our jurisprudence that for
evidence to be believed, it must not only proceed from the mouth
of a credible witness but must be credible in itself such as the
common experience and observation of mankind can approve as

probable under the circumstances. 44 The evidence on record is

bereft of any support for appellant's allegation of maltreatment.
Two doctors, one for the prosecution 45 and the other for the
defense, 46 testified on the absence of any tell-tale sign or
indication of bodily injury, abrasions or contusions on the person of
appellant. What is evident is that the cause of his abdominal pain
was his peptic ulcer from which he had been suffering even before
his arrest. 47 His own brother even corroborated that fact, saying
that appellant has had a history of bleeding peptic ulcer. 48
Furthermore, if it is true that appellant was maltreated at Camp
Olivas, he had no reason whatsoever for not divulging the same to
his brother who went to see him at the camp after his arrest and
during his detention there.49 Significantly, he also did not even
report the matter to the authorities nor file appropriate charges
against the alleged malefactors despite the opportunity to do
so 50 and with the legal services of counsel being available to him.
Such omissions funnel down to the conclusion that appellant's story
is a pure fabrication.
These, and the events earlier discussed, soundly refute his
allegations that his arrest was baseless and premeditated for the
NARCOM agents were determined to arrest him at all
costs. 51 Premeditated or not, appellant's arrest was only the
culmination, the final act needed for his isolation from society and
it was providential that it came about after he was caught in the
very act of illicit trade of prohibited drugs. Accordingly, this opinion
could have concluded on a note of affirmance of the judgment of
the trial court. However, Republic Act No. 6425, as amended, was
further amended by Republic Act No. 7659 effective December 31,
1993, 52 which supervenience necessarily affects the original
disposition of this case and entails additional questions of law
which we shall now resolve.
II
The provisions of the aforesaid amendatory law, pertinent to the
adjudication of the case at bar, are to this effect:
Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of
Republic Act No. 6425, as amended, known as the
Dangerous Drugs Act of 1972, are hereby amended
to read as follows:
xxx xxx xxx

Sec. 4. Sale, Administration, Delivery,

Distribution and Transportation of
Prohibited Drugs. The penalty
of reclusion perpetua to death and a
fine ranging from five hundred
thousand pesos to ten million pesos
shall be imposed upon 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.
xxx xxx xxx
Sec. 17. Section 20, Article IV of Republic Act No.
6425, as amended, known as the Dangerous Drugs
Act of 1972, is hereby amended to read as follows:
Sec. 20. Application of Penalties,
Confiscation and Forfeiture of the
Proceeds or Instrument of the Crime.
The penalties for offenses under
Sections 3, 4, 7, 8 and 9 of Article II
and Sections 14, 14-A, 15 and 16 of
Article III of this Act shall be applied if
the dangerous drugs involved is in any
of the following quantities:
xxx xxx xxx
5. 750 grams or more of indian
hemp or marijuana
xxx xxx xxx
Otherwise, if the quantity involved is
less than the foregoing quantities, the
penalty
shall
range
from prision
correccional to reclusion
perpetua depending upon the quantity.

1. Considering that herein appellant is being prosecuted for the sale

of four tea bags of marijuana with a total weight of only 3.8 grams
and, in fact, stands to be convicted for the sale of only two of those
tea bags, the initial inquiry would be whether the patently
favorable
provisions
of
Republic
Act
No. 7659 should be given retroactive effect to entitle him to the
lesser penalty provided thereunder, pursuant to Article 22 of the
Revised Penal Code.
Although Republic Act No. 6425 was enacted as a special law, albeit
originally amendatory and in substitution of the previous Articles
190 to 194 of the Revised Penal Code, 53 it has long been settled
that by force of Article 10 of said Code the beneficient provisions of
Article 22 thereof applies to and shall be given retrospective effect
to crimes punished by special laws. 54 The execution in said article
would not apply to those convicted of drug offenses since habitual
delinquency refers to convictions for the third time or more of the
crimes of serious or less serious physical injuries, robo, hurto,
estafa or falsification. 55
Since, obviously, the favorable provisions of Republic Act No. 7659
could neither have then been involved nor invoked in the present
case, a corollary question would be whether this court, at the
present
stage,
can
sua sponte apply the provisions of said Article 22 to reduce the
penalty to be imposed on appellant. That issue has likewise been
resolved in the cited case of People vs. Moran, et al., ante., thus:
. . . . The plain precept contained in article 22 of the
Penal Code, declaring the retroactivity of penal laws
in so far as they are favorable to persons accused of
a felony, would be useless and nugatory if the courts
of justice were not under obligation to fulfill such
duty, irrespective of whether or not the accused has
applied for it, just as would also all provisions relating
to the prescription of the crime and the penalty.
If the judgment which could be affected and modified by the
reduced penalties provided in Republic Act No. 7659 has already
become final and executory or the accused is serving sentence
thereunder, then practice, procedure and pragmatic considerations
would warrant and necessitate the matter being brought to the
judicial authorities for relief under a writ of habeas corpus. 56

2. Probably through oversight, an error on the matter of imposable

penalties appears to have been committed in the drafting of the
aforesaid law; thereby calling for and necessitating judicial
reconciliation and craftsmanship.
As applied to the present case, Section 4 of Republic Act No. 6425,
as now further amended, imposes the penalty of reclusion
perpetua to death and a fine ranging from P500,000.00 to
P10,000,000.00 upon any person who shall unlawfully sell,
administer, deliver, give away, distribute, dispatch in transit or
transport any prohibited drug. That penalty, according to the
amendment to Section 20 of the law, shall be applied if what is
involved is 750 grams or more of indian hemp or marijuana;
otherwise, if the quantity involved is less, the penalty shall range
from prision correccional to reclusion perpetua depending upon the
quantity.
In other words, there is here an overlapping error in the provisions
on the penalty of reclusion perpetua by reason of its dual
imposition, that is, as the maximum of the penalty where the
marijuana is less than 750 grams, and also as the minimum of the
penalty where the marijuana involved is 750 grams or more. The
same error has been committed with respect to the other
prohibited and regulated drugs provided in said Section 20. To
harmonize such conflicting provisions in order to give effect to the
whole law, 57 we hereby hold that the penalty to be imposed where
the quantity of the drugs involved is less than the quantities stated
in
the
first
paragraph
shall
range
from prision
correccional to reclusion temporal, and not reclusion perpetua. This
is also concordant with the fundamental rule in criminal law that all
doubts should be construed in a manner favorable to the accused.
3. Where, as in this case, the quantity of the dangerous drug is only
3.8 grams, hence covered by the imposable range of penalties
under the second paragraph of Section 20, as now modified, the
law provides that the penalty shall be taken from said range
"depending upon the quantity" of the drug involved in the case.
The penalty in said second paragraph constitutes a complex one
composed
of
three
distinct
penalties,
that
is, prision
correccional,prision mayor, and reclusion temporal. In such a
situation, the Code provides that each one shall form a period, with
the lightest of them being the minimum, the next as the medium,
and the most severe as the maximum period.58

Ordinarily, and pursuant to Article 64 of the Code, the mitigating

and aggravating circumstances determine which period of such
complex
penalty
shall be imposed on the accused. The peculiarity of the second
paragraph of Section 20, however, is its specific mandate, above
quoted, that the penalty shall instead depend upon the quantity of
the drug subject of the criminal transaction. 59 Accordingly, by way
of exception to Article 77 of the Code and to subserve the purpose
of Section 20 of Republic Act No. 7659, each of the aforesaid
component penalties shall be considered as a principal imposable
penalty depending on the quantity of the drug involved. Thereby,
the modifying circumstances will not altogether be disregarded.
Since each component penalty of the total complex penalty will
have to be imposed separately as determined by the quantity of
the drug involved, then the modifying circumstances can be used
to fix the proper period of that component penalty, as shall
hereafter be explained.
It would, therefore, be in line with the provisions of Section 20 in
the context of our aforesaid disposition thereon that, unless there
are compelling reasons for a deviation, the quantities of the drugs
enumerated in its second paragraph be divided into three, with the
resulting quotient, and double or treble the same, to be
respectively the bases for allocating the penalty proportionately
among the three aforesaid periods according to the severity
thereof. Thus, if the marijuana involved is below 250 grams, the
penalty to be imposed shall be prision correccional; from 250 to
499
grams, prision
mayor;
and
500
to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a
conjunctive penalty only if the penalty is reclusion perpetua to
death. 60
Now, considering the minimal quantity of the marijuana subject of
the case at bar, the penalty of prision correccional is consequently
indicated but, again, another preliminary and cognate issue has
first to be resolved.
4. Prision correccional has a duration of 6 months and 1 day to 6
years and, as a divisible penalty, it consists of three periods as
provided in the text of and illustrated in the table provided by
Article 76 of the Code. The question is whether or not in
determining the penalty to be imposed, which is here to be taken
from the penalty of prision correccional, the presence or absence of
mitigating, aggravating or other circumstances modifying criminal
liability should be taken into account.

We are not unaware of cases in the past wherein it was held that, in
imposing the penalty for offenses under special laws, the rules on
mitigating or aggravating circumstances under the Revised Penal
Code cannot and should not be applied. A review of such doctrines
as applied in said cases, however, reveals that the reason therefor
was because the special laws involved provided their own specific
penalties for the offenses punished thereunder, and which penalties
were not taken from or with reference to those in the Revised Penal
Code. Since the penalties then provided by the special laws
concerned did not provide for the minimum, medium or maximum
periods, it would consequently be impossible to consider the
aforestated modifying circumstances whose main function is to
determine the period of the penalty in accordance with the rules in
Article 64 of the Code.
This is also the rationale for the holding in previous cases that the
provisions of the Code on the graduation of penalties by degrees
could not be given supplementary application to special laws, since
the penalties in the latter were not components of or contemplated
in the scale of penalties provided by Article 71 of the former. The
suppletory effect of the Revised Penal Code to special laws, as
provided in Article 10 of the former, cannot be invoked where there
is a legal or physical impossibility of, or a prohibition in the special
law against, such supplementary application.
The situation, however, is different where although the offense is
defined in and ostensibly punished under a special law, the penalty
therefor is actually taken from the Revised Penal Code in its
technical nomenclature and, necessarily, with its duration,
correlation and legal effects under the system of penalties native to
said Code. When, as in this case, the law involved speaks of prision
correccional, in its technical sense under the Code, it would
consequently be both illogical and absurd to posit otherwise. More
on this later.
For the nonce, we hold that in the instant case the imposable
penalty under Republic Act No. 6425, as amended by Republic Act
No. 7659, is prision correccional, to be taken from the medium
period thereof pursuant to Article 64 of the Revised Penal Code,
there being no attendant mitigating or aggravating circumstance.
5. At this juncture, a clarificatory discussion of the developmental
changes in the penalties imposed for offenses under special laws
would be necessary.

Originally, those special laws, just as was the conventional practice

in the United States but differently from the penalties provided in
our Revised Penal Code and its Spanish origins, provided for one
specific penalty or a range of penalties with definitive durations,
such as imprisonment for one year or for one to five years but
without division into periods or any technical statutory cognomen.
This is the special law contemplated in and referred to at the time
laws like the Indeterminate Sentence Law 61 were passed during the
American regime.
Subsequently, a different pattern emerged whereby a special law
would direct that an offense thereunder shall be punished under
the Revised Penal Code and in the same manner provided therein.
Inceptively, for instance, Commonwealth Act No. 303 62 penalizing
non-payment of salaries and wages with the periodicity prescribed
therein, provided:
Sec. 4. Failure of the employer to pay his employee
or laborer as required by section one of this Act,
shallprima facie be considered a fraud committed by
such employer against his employee or laborer by
means of false pretenses similar to those mentioned
in article three hundred and fifteen, paragraph four,
sub-paragraph two (a) of the Revised Penal Code and
shall be punished in the same manner as therein
provided. 63
Thereafter, special laws were enacted where the offenses defined
therein were specifically punished by the penalties as technically
named and understood in the Revised Penal Code. These are
exemplified by Republic Act No. 1700 (Anti-Subversion Act) where
the
penalties
ranged
from arresto
mayor to
death; 64 Presidential Decree No. 1612 (Anti-Fencing Decree) where
the penalties run from arresto mayor toprision mayor; and
Presidential
Decree
No. 1866 (illegal possession and other prohibited acts involving
firearms), the penalties wherefor may involveprision mayor,
reclusion temporal, reclusion perpetua or death.
Another variant worth mentioning is Republic Act No. 6539
(Anti-Carnapping Act of 1972) where the penalty is imprisonment
for not less than 14 years and 8 months and not more than 17
years and 4 months, when committed without violence or
intimidation of persons or force upon things; not less than 17 years
and 4 months and not more than 30 years, when committed with

violence against or intimidation of any person, or force upon things;

and life imprisonment to death, when the owner, driver or occupant
of the carnapped vehicle is killed.
With respect to the first example, where the penalties under the
special law are different from and are without reference or relation
to those under the Revised Penal Code, there can be no suppletory
effect of the rules for the application of penalties under said Code
or by other relevant statutory provisions based on or applicable
only to said rules for felonies under the Code. In this type of special
law, the legislative intendment is clear.
The same exclusionary rule would apply to the last given example,
Republic Act No. 6539. While it is true that the penalty of 14 years
and
8 months to 17 years and 4 months is virtually equivalent to the
duration of the medium period of reclusion temporal, such technical
term under the Revised Penal Code is not given to that penalty for
carnapping. Besides, the other penalties for carnapping attended
by the qualifying circumstances stated in the law do not correspond
to those in the Code. The rules on penalties in the Code, therefore,
cannot suppletorily apply to Republic Act No. 6539 and special laws
of the same formulation.
On the other hand, the rules for the application of penalties and the
correlative effects thereof under the Revised Penal Code, as well as
other statutory enactments founded upon and applicable to such
provisions of the Code, have suppletory effect to the penalties
under
the
former
Republic
Act
No. 1700 and those now provided under Presidential Decrees Nos.
1612 and 1866. While these are special laws, the fact that the
penalties for offenses thereunder are those provided for in the
Revised Penal code lucidly reveals the statutory intent to give the
related provisions on penalties for felonies under the Code the
corresponding application to said special laws, in the absence of
any express or implicit proscription in these special laws. To hold
otherwise would be to sanction an indefensible judicial truncation
of an integrated system of penalties under the Code and its allied
legislation, which could never have been the intendment of
Congress.
In People vs. Macatanda, 65 a prosecution under a special law
(Presidential Decree No. 533, otherwise known as the Anti-Cattle
Rustling Law of 1974), it was contended by the prosecution that

Article 64, paragraph 5, of the Revised Penal Code should not apply
to said special law. We said therein that
We do not agree with the Solicitor General that P.D.
533 is a special law entirely distinct from and
unrelated to the Revised Penal Code. From the nature
of the penalty imposed which is in terms of the
classification and duration of penalties as prescribed
in the Revised Penal Code, which is not for penalties
as are ordinarily imposed in special laws, the intent
seems clear that P.D. 533 shall be deemed as an
amendment of the Revised Penal Code, with respect
to the offense of theft of large cattle (Art. 310) or
otherwise to be subject to applicable provisions
thereof such as Article 104 of the Revised Penal Code
. . . . Article 64 of the same Code should, likewise, be
applicable, . . . . (Emphasis supplied.)
More particularly with regard to the suppletory effect of the rules on
penalties in the Revised Penal Code to Republic Act No. 6425, in
this case involving Article 63(2) of the Code, we have this more
recent pronouncement:
. . . Pointing out that as provided in Article 10 the
provisions of the Revised Penal Code shall be
"supplementary" to special laws, this Court held that
where the special law expressly grants to the court
discretion in applying the penalty prescribed for the
offense, there is no room for the application of the
provisions of the Code . . . .
The Dangerous Drugs Act of 1972, as amended by
P.D. No. 1623, contains no explicit grant of discretion
to the Court in the application of the penalty
prescribed by the law. In such case, the court must
be guided by the rules prescribed by the Revised
Penal
Code
concerning
the
application
of
penalties which distill the "deep legal thought and
centuries of experience in the administration of
criminal laws." (Emphasis ours.) 66
Under the aforestated considerations, in the case of the Dangerous
Drugs Act as now amended by Republic Act No. 7659 by the
incorporation and prescription therein of the technical penalties
defined in and constituting integral parts of the three scales of

penalties in the Code, 67 with much more reason should the

provisions of said Code on the appreciation and effects of all
attendant modifying circumstances apply in fixing the penalty.
Likewise, the different kinds or classifications of penalties and the
rules
for
graduating
such penalties by degrees should have supplementary effect on
Republic Act No. 6425, except if they would result in absurdities as
will now be explained.
While not squarely in issue in this case, but because this aspect is
involved in the discussion on the role of modifying circumstances,
we have perforce to lay down the caveat that mitigating
circumstances should be considered and applied only if they affect
the periods and the degrees of the penalties within rational limits.
Prefatorily, what ordinarily are involved in the graduation and
consequently determine the degree of the penalty, in accordance
with the rules in Article 61 of the Code as applied to the scale of
penalties in Article 71, are the stage of execution of the crime and
the nature of the participation of the accused. However, under
paragraph 5 of Article 64, when there are two or more ordinary
mitigating circumstances and no aggravating circumstance, the
penalty shall be reduced by one degree. Also, the presence of
privileged mitigating circumstances, as provided in Articles 67 and
68, can reduce the penalty by one or two degrees, or even more.
These provisions of Articles 64(5), 67 and 68 should not apply in
toto in the determination of the proper penalty under the
aforestated second paragraph of section 20 of Republic Act No.
6425, to avoid anomalous results which could not have been
contemplated by the legislature.
Thus, paragraph 5 of Article 61 provides that when the law
prescribes a penalty in some manner not specially provided for in
the four preceding paragraphs thereof, the courts shall proceed by
analogy therewith. Hence, when the penalty prescribed for the
crime consists of one or two penalties to be imposed in their full
extent, the penalty next lower in degree shall likewise consist of as
many penalties which follow the former in the scale in Article 71. If
this rule were to be applied, and since the complex penalty in this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then
one degree lower would be arresto menor,destierro and arresto
mayor. There could, however, be no further reduction by still one or
two degrees, which must each likewise consist of three penalties,

since only the penalties of fine and public censure remain in the
scale.
The Court rules, therefore, that while modifying circumstances may
be appreciated to determine the periods of the corresponding
penalties, or even reduce the penalty by degrees, in no case should
such graduation of penalties reduce the imposable penalty beyond
or lower than prision correccional. It is for this reason that the three
component penalties in the second paragraph of Section 20 shall
each be considered as an independent principal penalty, and that
the lowest penalty should in any event be prision correccional in
order
not
to
depreciate
the
seriousness
of
drug
offenses. Interpretatio fienda est ut res magis valeat quam pereat.
Such interpretation is to be adopted so that the law may continue
to have efficacy rather than fail. A perfect judicial solution cannot
be forged from an imperfect law, which impasse should now be the
concern of and is accordingly addressed to Congress.
6. The final query is whether or not the Indeterminate Sentence
Law is applicable to the case now before us. Apparently it does,
since drug offenses are not included in nor has appellant
committed any act which would put him within the exceptions to
said law and the penalty to be imposed does not involve reclusion
perpetua or death, provided, of course, that the penalty as
ultimately resolved will exceed one year of imprisonment. 68 The
more important aspect, however, is how the indeterminate
sentence shall be ascertained.
It is true that Section 1 of said law, after providing for
indeterminate sentence for an offense under the Revised Penal
Code, states that "if the offense is punished by any other law, the
court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by
said law and the minimum shall not be less than the minimum term
prescribed by the same." We hold that this quoted portion of the
section indubitably refers to an offense under a special law wherein
the penalty imposed was not taken from and is without reference to
the Revised Penal Code, as discussed in the preceding illustrations,
such that it may be said that the "offense is punished" under that
law.
There can be no sensible debate that the aforequoted rule on
indeterminate sentence for offenses under special laws was
necessary because of the nature of the former type of penalties
under said laws which were not included or contemplated in the

scale of penalties in Article 71 of the Code, hence there could be no

minimum "within the range of the penalty next lower to that
prescribed by the Code for the offense," as is the rule for felonies
therein. In the illustrative examples of penalties in special laws
hereinbefore provided, this rule applied, and would still apply, only
to the first and last examples. Furthermore, considering the vintage
of Act No. 4103 as earlier noted, this holding is but an application
and is justified under the rule of contemporanea expositio. 69
We repeat, Republic Act No. 6425, as now amended by Republic Act
No. 7659, has unqualifiedly adopted the penalties under the
Revised Penal Code in their technical terms, hence with their
technical signification and effects. In fact, for purposes of
determining
the maximum of
said
sentence,
we
have applied the provisions of the amended Section 20 of said law
to arrive at prision correccional and Article 64 of the Code to
impose the same in the medium period. Such offense, although
provided for in a special law, is now in effect punished by and
under the Revised Penal Code. Correlatively, to determine the
minimum, we must apply the first part of the aforesaid Section 1
which directs that "in imposing a prison sentence for an offense
punished by the Revised Penal Code, or its amendments, the court
shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the
rules of said Code, and the minimum which shall be within the
range of the penalty next lower to that prescribed by the Code for
the offense." (Emphasis ours.)
A divergent pedantic application would not only be out of context
but also an admission of the hornbook maxim that qui haeret
in litera haeret in cortice. Fortunately, this Court has never gone
only skin-deep in its construction of Act. No. 4103 by a mere literal
appreciation of its provisions. Thus, with regard to the phrase in
Section 2 thereof excepting from its coverage "persons convicted of
offenses punished with death penalty or life imprisonment," we
have
held
that
what
is
considered
is
the
penalty
actually imposed and not the penalty imposable under the
law, 70 and that reclusion perpetua is likewise embraced therein
although what the law states is "life imprisonment".
What irresistibly emerges from the preceding disquisition,
therefore, is that under the concurrence of the principles of literal
interpretation, which have been rationalized by comparative
decisions of this Court; of historical interpretation, as explicated by

the antecedents of the law and related contemporaneous

legislation; and of structural interpretation, considering the
interrelation of the penalties in the Code as supplemented by Act
No. 4103 in an integrated scheme of penalties, it follows that the
minimum of the indeterminate sentence in this case shall be
the penalty next lower to that prescribed for the offense. Thereby
we shall have interpreted the seeming ambiguity in Section 1 of Act
No. 4103 in such a way as to harmonize laws with laws, which is the
best mode of interpretation. 71
The indeterminate Sentence Law is a legal and social measure of
compassion, and should be liberally interpreted in favor of the
accused. 72 The "minimum" sentence is merely a period at which,
and not before, as a matter of grace and not of right, the prisoner
may merely be allowed to serve the balance of his sentence
outside of his confinement. 73 It does not constitute the totality of
the penalty since thereafter he still has to continue serving the rest
of his sentence under set conditions. That minimum is only the
period when the convict's eligibility for parole may be considered.
In fact, his release on parole may readily be denied if he is found
unworthy thereof, or his reincarceration may be ordered on legal
grounds, even if he has served the minimum sentence.
It is thus both amusing and bemusing if, in the case at bar,
appellant should be begrudged the benefit of a minimum sentence
within the range of arresto mayor, the penalty next lower to prision
correccional which is the maximum range we have fixed through
the application of Articles 61 and 71 of the Revised Penal Code. For,
with fealty to the law, the court may set the minimum sentence at
6 months of arresto mayor, instead of 6 months and 1 day
of prision correccional. The difference, which could thereby even
involve only one day, is hardly worth the creation of an overrated
tempest in the judicial teapot.
ACCORDINGLY, under all the foregoing premises, the judgment of
conviction rendered by the court a quo against accused-appellant
Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION
that he should be, as he hereby is, sentenced to serve an
indeterminate penalty of six (6) months of arresto mayor, as the
minimum, to six (6) years of prision correccional, as the maximum
thereof.
SO ORDERED.

During his arraignment, appellant pleaded not guilty. Thereafter,

trial on the merits ensued.
G.R. No. 134486

November 16, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CLEMENTE DAYNA, accused-appellant.
QUISUMBING, J.:
Before us on automatic review is the decision 1 of the Regional Trial
Court of Dipolog City, Branch 8, finding accused-appellant
Clemente Dayna guilty of rape and imposing on him the penalty of
death.
Appellant was charged under an Information which reads:
The undersigned, Provincial Prosecutor, upon a sworn
complaint, originally filed by the private offended party,
accuses CLEMENTE DAYNA y Agayan of the crime of RAPE,
committed as follows:
That, in the morning, on or about the 21st day of December,
1994, in the municipality of Pian, Zamboanga del Norte,
within the jurisdiction of this Honorable Court, the said
accused armed with a hunting knife, moved by lewd and
unchaste desire and by means of force, violence and
intimidation, did then and there willfully, unlawfully and
feloniously succeed in having sexual intercourse with one
EVELYN ELEMIA, a 15 year old orphan, against her will and
without her consent.
CONTRARY TO LAW (Viol. Of Art. 335, Revised Penal Code),
with the aggravating circumstances (sic) of the use of
deadly weapon.
Dipolog City, Philippines.
February 14, 1995
RODOLFO T. MATA
Provincial Prosecutor2

The first witness for the prosecution was the offended party,
EVELYN ELEMIA, 15 years old and a resident of Adante, Pian,
Zamboanga del Norte. On direct examination, she testified that in
the morning of December 21, 1994, at around 8:00 o'clock, she and
her uncle Clemente Dayna were left alone in their house as her
aunt Esperanza went out to buy fish. Clemente Dayna forced her to
go upstairs, while he pointed a knife at her back. Upon reaching the
second floor, he made her lie down on the floor. Then he removed
his shorts and her panty. He then proceeded to have sexual
intercourse with her, by inserting his penis inside her vagina for
about half an hour. On cross-examination, however, Evelyn stated
that her private part was hit by his uncle with an umbrella and that
she was told by her aunt and the DSWD personnel to testify that
she had been raped.3
DR. MEIMEI R. YU, the next witness, testified that she was employed
as rural health physician of the Pian Community Hospital and that
she examined the complainant on December 27, 1994. Her findings
revealed that the hymen of Evelyn was still intact and that she
suffered no lacerations in that area. Neither did she suffer any
bruise or injury on any part of her body. However, Dr. Yu stated that
the labia majora was coapted with reddish discoloration which
could had been caused by sexual intercourse. On cross, the doctor
stated that this discoloration or irritation could have been caused
by other hard objects such as the handle of an umbrella being
pushed through this particular portion of the organ. 4
SPO3 RONALD SALATANDRE testified that he was the one who
investigated the complaint for rape filed by the wife of Clemente
allegedly committed against their niece Evelyn. 5
The defense, in turn, presented appellant CLEMENTE DAYNA, who
denied the accusations against him. He alleged that he only hit
Evelyn with the handle of an umbrella because of anger. He said he
lost P50 from his pocket, and he suspected that Evelyn took the
money. The handle hit Evelyn on her private part twice. He also
alleged that his wife and her family were mad at him for having a
paramour.6
On May 13, 1998, the trial court promulgated its assailed decision
disposing as follows:

WHEREFORE and for all the foregoing observations, with the

guilt of the accused established beyond reasonable doubt,
herein accused Clemente Dayna y Agayan is convicted as
principal by direct participation of the crime of RAPE
charged against him, and in the light of Article 335 of the
Revised Penal Code, as amended by Republic Act 7659,
which took effect on December 31, 1993, hereby sentenced
to suffer the penalty of DEATH, by appreciating the
aggravating circumstance of relationship, with all the
accessory penalties as may be provided by law.
The accused is further sentenced to pay the offended party
the sum of P20,000.00 as actual damages and the additional
sum of P50,000.00 by way of moral damages.
SO ORDERED.7
Appellant raises the following errors in his brief:
I
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.
II
EVEN ASSUMING THAT ACCUSED IS TRULY GUILTY OF THE CRIME OF
RAPE, NONETHELESS, THE TRIAL COURT ERRED IN IMPOSING UPON
HIM THE SUPREME PENALTY OF DEATH.
Appellant asserts that his guilt had not been established beyond
reasonable doubt. He places much emphasis on the fact that the
medical examination on the complainant revealed that her hymen
was still intact, thus refuting the possibility that her organ was
invaded by his penis. Appellant also notes that complainant
admitted in her cross-examination that she was hit by an umbrella
and that her aunt and the DSWD worker told her to tell the court
that she was raped. He adds that his wife and her family had ill
feelings against him since he has a lover. These things, according
to appellant, place a serious doubt on the prosecution's case. In the
alternative, appellant alleges that he cannot be sentenced to death
because his relationship with the offended party was not alleged in
the information.8

The Office of the Solicitor General (OSG), for the State, argues that
an intact hymen is not necessarily inconsistent with a finding of
rape and that hymenal laceration is not an essential prerequisite to
prove rape. The OSG also notes that Evelyn clarified that two
incidents happened on December 21, 1994, one was the umbrella
bashing and the other was the rape. There is likewise no reason to
believe that complainant and her aunt were moved by ill motive in
filing the complaint. Had the rape been a mere fabrication, this
would have been evident in the testimony of complainant. On the
contrary, complainant, despite her young age and the gruelling
nature of the cross-examination, remained steadfast and
consistent, tell tale signs that she was telling the truth in court. The
OSG concedes that the trial court erred in appreciating the
relationship of appellant and complainant as a ground in imposing
the death penalty. However, the OSG insists that the penalty of
death is still justified since the rape was attended by the
aggravating circumstance of use of a deadly weapon. Finally, the
OSG adds that the award of P20,000.00 as actual damages should
be increased to P75,000.00.9
In sum, the issues in this case are whether the guilt of appellant
had been established beyond reasonable doubt and whether the
penalty imposed is proper.
In resolving cases of rape, this Court is guided by the following
principles: (a) an accusation for rape can be made with facility; it is
difficult to prove but even more difficult for the accused, though
innocent, to disprove; (b) in view of the intrinsic nature of the crime
where only two persons are usually involved, the testimony of the
complainant must be scrutinized with extreme caution; and (c) the
evidence for the prosecution must stand or fall on its own merit,
and cannot be allowed to draw strength from the weakness of the
evidence for the defense.10 In general, the evaluation of the trial
court judges regarding the credibility of witnesses deserves utmost
respect on the ground that they are in the best position to observe
the demeanor, act, conduct, and attitude of the witnesses in court
while testifying.11
Guided by these principles and after a careful review of the records
of this case, we find no reason to overturn the finding of guilt
reached by the trial court.
The testimony of Evelyn was given in a candid and straightforward
manner leaving no room for doubt that she is telling the truth.
Aside from this, her tender age further lends to her credibility. We

noted in People vs. Del Mundo, Sr., G.R. No. 132065, April 3, 2001,
it is apparent that in rape cases where the offended parties are
young and immature girls from the ages of twelve to sixteen, the
rule is that:
[C]onsiderable receptivity on the part of this Tribunal to lend
credence to their version of what transpired, considering not
only their relative vulnerability but also the shame and
embarrassment to which such a grueling experience as a
court trial, where they are called upon to lay bare what
perhaps should be shrouded in secrecy, did expose them to.
This is not to say that an uncritical acceptance should be the
rule. It is only to emphasize that skepticism should be kept
under control.12
Appellant tries to discredit Evelyn by pointing out that her
testimony was not corroborated by the physical evidence. Appellant
insists that the fact that her hymen was still intact signifies that she
had not been raped. This argument is not convincing. The fact that
complainant's private parts did not suffer any laceration or that her
hymen is still intact is not relevant in a prosecution for rape. In rape
cases, what is material is that there is penetration of the female
organ no matter how slight. In a long line of decisions, we have
ruled that the only essential point is to prove the entrance or at
least the introduction of the male organ into the light of the
pudendum. Hence, the moment appellant's penis knocks at the
door of the pudenda it suffices to constitute the crime of rape. 13
On the alleged statements made by complainant during her crossexamination, exonerating appellant, a close look at complainant's
testimony would in fact reveal that said testimony bolsters her
claim that she had been raped. The fact that she admitted that she
was hit by an umbrella does not preclude that she was also
sexually abused, thus:
COURT:
From the Court. There are two incidents which you
seem to tell the Court. One is that you were raped by
your uncle Clemente and the other one that your
uncle got angry and struck your private part with the
handle of the umbrella, which happened first?
A:

The first incident was when I was raped.

COURT:
Did it happen on the same day or another day?
A:

It happened on December 21, Your Honor.

COURT:
You mean both incidents happened in the same day.
A:

Yes, Your Honor.14

Even the admission of complainant that she was told by her aunt
and the DSWD personnel to tell the court that she was raped would
not serve appellant's cause. By prodding her to tell the court that
she was raped, they were merely encouraging her to tell what truly
happened. There is no reason for them to make Evelyn lie.
Neither are we convinced by appellant's assertion that the rape
charge could have been motivated by the ill feeling which his wife
and her relatives have against him. No person in her right mind
would stoop so low as to subject her own niece to the hardships
and shame concomitant to a rape prosecution, especially if the one
accused is the girl's own uncle, just to assuage her own hurt
feelings. It is unnatural for a relative to use her own kin as an
engine of malice and sacrifice her to public ridicule if she, in fact,
has not been motivated by an honest desire to have the culprit
punished. The insistence of appellant that his wife fabricated the
rape charges because he had a lover is not supported by the
evidence.
All told, we are morally convinced that appellant is guilty of raping
Evelyn. However, we are unable to agree with the imposition of the
death penalty. As stated in appellant's brief, the trial court erred in
appreciating the relationship between appellant and complainant
as a basis for the imposition of the death penalty. Said relationship
was not alleged in the information. In order to warrant the death
penalty, the information must allege the qualifying and modifying
circumstance that would justify its imposition. Not only must the
information allege the minority of the victim but it must also state
the relationship of the offender to the offended party. 15 Otherwise,
there would be a gross violation of the appellant's constitutional
right to due process, because he was not properly informed of the
accusation against him.

Neither is the imposition of the death penalty justified on the sole

ground that a deadly weapon was used in the commission of the
crime. Note that the penalty for rape when attended by the
aggravating circumstance of "with the use of a deadly weapon"
is reclusion perpetua to death.16 Hence, the mere presence of this
aggravating circumstance does not automatically entail the
imposition of the death penalty. The imposition of the death penalty
in those cases where the law provides for a penalty ranging
from reclusion perpetua to death does not give the trial court an
unfettered but a guided discretion in the imposition of capital
punishment.17 The Court must apply the second paragraph of
Article 63 of the Revised Penal Code which reads:
xxx

xxx

xxx

2. When there are neither mitigating nor aggravating

circumstances in the commission of the deed, the lesser
penalty shall be applied.
xxx

xxx

xxx

In the case at bar, no other aggravating nor any mitigating

circumstance had been proved. Accordingly, the imposable penalty
is reclusion perpetua, the lesser penalty.
Anent the damages awarded, we find that slight modifications are
called for. While the award of P50,000 as moral damages is
warranted, there is a need to increase the civil indemnity to
P50,000 conformably with prevailing jurisprudence. 18 Exemplary
damages, pursuant to current jurisprudence, must also be awarded
to the victim in the amount of P25,000.
WHEREFORE, the decision of the trial court finding accusedappellant Clemente Dayna guilty of rape with the use of a deadly
weapon is AFFIRMED with the MODIFICATION that he is sentenced
to suffer the penalty of reclusion perpetua, and ordered to pay the
offended party P50,000 as civil indemnity, P50,000 as moral
damages, and P25,000 as exemplary damages.
SO ORDERED.

Alejandro Perez and Alberto Roque were convicted of murder in the

Court of First Instance of Manila and sentenced to a penalty of not
less than 8 years of prision mayor and not more than 14 years and
8 months ofreclusion temporal, plus indemnity and costs. From this
sentence Alejandro Perez appealed to the Court of Appeals, but that
court has certified the case to us on the ground that the penalty
that should be imposed is life imprisonment. The other accused did
not appeal.
It appears from the testimony of the witnesses for the prosecution
that about midnight of May 1, 1947, while Elpidio Soriano, Joaquin
Cristobal, and Rogelio Villafranca were gathered together telling
stories at one end of the Pealosa wooden bridge in the City of
Manila, two men approached from the other end and, without any
warning, attacked them with gunfire. Jumping off the bridge into
the water below, Cristobal succeeded in getting away unhurt; while
Villafranca, though it hit a bullet in each arm, also managed to
escape in the same manner. But Soriano was not so fortunate, for,
unable to escape, he was riddled with shot and died on the spot
with five bullet wounds..

G.R. No. L-3513

September 29, 1951

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALBERTO ROQUE Y VILLENA and ALEJANDRO PEREZ Y
ALONZO, defendants. ALEJANDRO PEREZ Y
ALONZO, defendant-appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Jose G.
Bautista for plaintiff-appellee.
Romero & Romero for defendant-appellant.
REYES, J.:

Information gathered by the police that same night pointed to

Alberto Roque and Alejandro Perez as the malefactors. But the two
had fled and were not captured until some days later when the
police came upon them as they were eating together in a house on
Asuncion Street, armed with the very guns they had used in the
commission of the crime. Taken to the police station and subjected
to questioning, they gave their account of the shooting as well as
the part played by each. Their statements were taken down in
writing and thereafter authenticated by them with their signatures.
It may be gathered from those statements that some three months
prior to the shooting the deceased and his brother "Pacing" had
killed one Bienvenido Victorio alias Bombay, a housemate and close
friend of Roque, and since then Roque and Perez had been worried
with the thought that the deceased was also after them, taking
them for members of Bombay's gang. They were in this state of
mind when, walking along the estero on the night in question, they
spotted Soriano on the bridge conversing with some companions.
Armed as they were with a gun and seeing that here was a chance
to eliminate a threat to their life, Roque approached Soriano and at

close range opened fire, as did also Perez who was following not far
behind. After seeing Soriano drop as a result of the fusillade and
with the rest of the group scampering for safety, Roque and Perez
left the place and passed the remainder of the night in a cemetery.
Early the next morning they went to Batangas and there stayed in
the house of Perez's brother until they returned to Manila on the
26th of the same month, the day they were arrested by the police.
At the trial appellant declared that he was not at the scene of the
crime for he was then in Marulas, Polo, Bulacan. But the alibi is so
weak that it is no longer insisted on this appeal. What is now
claimed is that appellant did not fire at the deceased and it was not
in connivance with his co-accused, who was the only one who did
so.
As against the contention that appellant did not fire at the
deceased, we have Roque's confession to the contrary. Villafranca it
is true, testified that appellant fired upward (disparo hacia arriba).
But the witness did not say that all of the four shots which
appellant admits in confession to have fired were not aimed at
anybody, while on the other hand it is evident that he did not see
appellant fire all the four shots because, according to him, the very
first bullet hit him in the left arm and he immediately jumped off
the bridge. It is likewise true that, according to the findings of the
ballistic expert, the two bullets recovered from the body of the
deceased were fired from the pistol supposedly used by Roque. But
there is no proof that all of the five wounds of the deceased and the
two wounds sustained by Villafranca were all produced by bullets
fired from the same gun, while the five shots which Roque fired
according to appellant's confession are not sufficient to account for
all of the seven wounds.
In any event, regardless of whether or not the deceased was hit
any appellant's bullets, there is enough proof of conspiracy
between him and his co-accused to make him jointly liable for the
killing of the deceased. Asked why he went with Roque in order to
kill the deceased, appellant says in his confession that it was
because the deceased and his brother "Pacing" wanted to kill him
also. It thus appears that appellant and his co-accused had a
common motive for eliminating the deceased. And it also appears
that they were acting in concert, for according to their confession

they exchanged guns before they attacked and as Roque advanced

appellant followed, thus giving him cover, and even contributed to
his offensive power by also firing himself. They also fled and hid
together here in Manila and also in Batangas where they lived with
appellant's brother for some time. Afterwards they returned to
Manila together and they were still together when arrested.
The crime committed is murder qualified by treachery, considering
that the attack was sudden and the victim was in no position to
defend himself. But the fact that appellant was only 17 years old
when the crime was committed constitutes a mitigating
circumstance. This is so despite the passage of Republic Act No. 47,
reducing the age limit of minor delinquents entitled to suspension
of
sentence.
(People
vs.
Macabuhay,
83
Phil.,
464;
People vs. Garcia, 85 Phil., 651; and People vs. Tapang, 88 Phil.,
721. The penalty for murder should, therefore, be imposed in the
minimum degree.
Applying the Indeterminate Sentence Law, the trial court sentenced
appellant to a penalty below the range prescribed by law. To correct
this error, appellant is hereby sentenced to an indeterminate
penalty of from 10 years of 1 day of prision mayor to 17 years, 4
months and 1 day of reclusion temporal. Modified as to the penalty,
the judgment appealed from is affirmed, with costs.

THE PEOPLE OF THE PHILIPPINES, appellee,

vs.
JESUS PAYCANA, JR., appellant.
DECISION
TINGA, J.:
Appellant Jesus Paycana Jr. was charged 1 with the complex crime of
parricide with unintentional abortion before the Regional Trial Court
(RTC) of Iriga City, Branch 37. Appellant pleaded not guilty during
the arraignment.2 Pre-trial ensued, in which appellant admitted that
the victim Lilybeth Balandra-Paycana (Lilybeth) is his legitimate
wife.3
Appellant sought to exculpate himself from the crime by setting up
self-defense, claiming that it was his wife who attacked him first. In
view of the nature of self-defense, it necessarily follows that
appellant admits having killed his seven (7)-month pregnant wife,
and in the process put to death their unborn child.
The prosecution presented Tito Balandra (Tito), the father of the
victim; Angelina Paycana (Angelina), appellants eldest daughter
who personally witnessed the whole gruesome incident; Barangay
Tanod Juan Paraal, Jr.; Dr. Stephen Beltran, who conducted the
autopsy; and Santiago Magistrado, Jr., the embalmer who removed
the fetus from the deceaseds body.
The evidence for the prosecution established that on 26 November
2002, at around 6:30 in the morning, appellant, who worked as a
butcher, came home from the slaughter house carrying his tools of
trade, a knife, a bolo, and a sharpener. 4 His wife was preparing their
children for school and was waiting for him to come home from his
work. For reasons known to him alone, appellant stabbed his wife
14 times.5 Tito, whose house is at back of appellants house, heard
his daughter shouting for help. When he arrived, he saw his
daughter lying prostrate near the door and her feet were trembling.
But seeing appellant, who was armed, he stepped back. Angelina
told Tito by the window that appellant had held her mothers neck
and stabbed her. 6

G.R. No. 179035

April 16, 2008

Appellant claimed that he wrested the weapon from Lilybeth after

she stabbed him first. According to him, they had an altercation on
the evening of 25 November 2002 because he saw a man coming

out from the side of their house and when he confronted his wife
about the man, she did not answer. On the following morning, he
told her that they should live separately. As appellant got his things
and was on his way out of the door, Lilybeth stabbed him. But he
succeeded in wresting the knife from Lilybeth. And he stabbed her.
He added that he was not aware of the number of times he stabbed
his wife because he was then dizzy and lots of blood was coming
out of his wound.7
The trial court found appellant guilty in a decision dated 14 April
2005.8 The case was automatically appealed to the Court of
Appeals pursuant to Rule 122 Section 3(d) of the Rules of Criminal
Procedure.9 The appellate court denied appellants appeal in a
decision dated 30 May 2007. 10 Appellant filed a notice of appeal
dated 14 June 2007 before the Court of Appeals.11
The Court is not convinced by appellants assertion that the trial
court erred in not appreciating the justifying circumstance of selfdefense in his favor.
Self-defense, being essentially a factual matter, is best addressed
by the trial court. 12 In the absence of any showing that the trial
court failed to appreciate facts or circumstances of weight and
substance that would have altered its conclusion, the court below,
having seen and heard the witnesses during the trial, is in a better
position to evaluate their testimonies. No compelling reason,
therefore, exists for this Court to disturb the trial courts finding
that appellant did not act in self-defense.

eyewitness testimony of his own daughter Angelina, which was

corroborated by the testimony of his father-in-law Tito and the
medical findings. Angelinas testimony was very clear on how her
father strangled and stabbed her mother just as she was about to
greet him upon arriving home. She begged her father to stop, and
even tried to grab her fathers hand but to no avail. 16 Tito ran to
appellants house as he heard his daughter Lilybeths screaming for
help, and he saw her lying prostate near the door with her feet
trembling. He moved back as he saw appellant armed with a
weapon. Angelina told him by the window that appellant had held
her mothers neck and stabbed her.17
Moreover, Dr. Rey Tanchuling, a defense witness who attended to
appellants wound, testified on cross-examination that the injuries
suffered by appellant were possibly self-inflicted considering that
they were mere superficial wounds.18
In any event, self-defense on the part of appellant is further
negated by the physical evidence in the case. Specifically, the
number of wounds, fourteen (14) in all, indicates that appellant's
act was no longer an act of self-defense but a determined effort to
kill his victim.19 The victim died of multiple organ failure secondary
to multiple stab wounds.20
The Court agrees with the trial courts observation, thus:
Angelina who is 15 years old will not testify against her
father were it not for the fact that she personally saw her
father to be the aggressor and stab her mother. Telling her
grandfather immediately after the incident that accused
stabbed her mother is part of the res gestae hence,
admissible as evidence. Between the testimony of Angelica
who positively identified accused to have initiated the
stabbing and continuously stabbed her mother and on the
other hand, the testimony of accused that he killed the
victim in self-defense, the testimony of the former prevails. 21

Appellant failed to discharge the burden to prove self-defense. An

accused who interposes self-defense admits the commission of the
act complained of. The burden to establish self-defense is on the
accused who must show by strong, clear and convincing evidence
that the killing is justified and that, therefore, no criminal liability
has attached. The first paragraph of Article 11 of the Revised Penal
Code13 requires, in a plea of self-defense, (1) an unlawful
aggression on the part of the victim, (2) a reasonable necessity of
the means employed by the accused to prevent or repel it, and (3)
the lack of sufficient provocation on the part of the person
defending himself.14

The RTC, as affirmed by the Court of Appeals, properly convicted

appellant of the complex crime of parricide with unintentional
abortion in the killing of his seven (7)-month pregnant wife.

Unlawful aggression is a condition sine qua non for the justifying

circumstance of self-defense. Without it, there can be no selfdefense, whether complete or incomplete, that can validly be
invoked.15 Appellants claim of self-defense was belied by the

Bearing the penalty of reclusion perpetua to death, the crime of

parricide22 is committed when: (1) a person is killed; (2) the
deceased is killed by the accused; and (3) the deceased is the
father, mother, or child, whether legitimate or illegitimate, or a

legitimate other ascendant or other descendant, or the legitimate

spouse of the accused. The key element in parricide is the
relationship of the offender with the victim. In the case of parricide
of a spouse, the best proof of the relationship between the accused
and the deceased would be the marriage certificate. The testimony
of the accused of being married to the victim, in itself, may also be
taken as an admission against penal interest.23
As distinguished from infanticide,24 the elements of unintentional
abortion25 are as follows: (1) that there is a pregnant woman; (2)
that violence is used upon such pregnant woman without intending
an abortion; (3) that the violence is intentionally exerted; and (4)
that as a result of the violence the fetus dies, either in the womb or
after having been expelled therefrom. In the crime of infanticide, it
is necessary that the child be born alive and be viable, that is,
capable of independent existence.26 However, even if the child who
was expelled prematurely and deliberately were alive at birth, the
offense is abortion due to the fact that a fetus with an intrauterine
life of 6 months is not viable. 27 In the present case, the unborn
fetus was also killed when the appellant stabbed Lilybeth several
times.
The case before us is governed by the first clause of Article
4828 because by a single act, that of stabbing his wife, appellant
committed the grave felony of parricide as well as the less grave
felony of unintentional abortion. A complex crime is committed
when a single act constitutes two or more grave or less grave
felonies.
Under the aforecited article, when a single act constitutes two or
more grave or less grave felonies the penalty for the most serious
crime shall be imposed, the same to be applied in its maximum
period irrespective of the presence of modifying circumstances.
Applying the aforesaid provision of law, the maximum penalty for
the most serious crime (parricide) is death. However, the Court of
Appeals properly commuted the penalty of death imposed on the
appellant to reclusion perpetua, pursuant to Republic Act No.
9346.29
Civil indemnity in the amount of P50,000.00 (consistent with
prevailing jurisprudence) is automatically granted to the offended
party, or his/her heirs in case of the formers death, without need of
further evidence other than the fact of the commission of any of
the aforementioned crimes (murder, homicide, parricide and rape).
Moral and exemplary damages may be separately granted in

addition to indemnity. Moral damages can be awarded only upon

sufficient proof that the complainant is entitled thereto in
accordance with Art. 2217 of the Civil Code, while exemplary
damages can be awarded if the crime is committed with one or
more aggravating circumstances duly proved. The amounts thereof
shall be at the discretion of the courts. 30 Hence, the civil indemnity
of P50,000.00 awarded by the trial court to the heirs of Lilybeth is
in order. They are also entitled to moral damages in the amount
of P50,000.00 as awarded by the trial court.31
In addition to the civil liability and moral damages, the trial court
correctly made appellant account for P25,000.00 as exemplary
damages on account of relationship, a qualifying circumstance,
which was alleged and proved, in the crime of parricide. 32
WHEREFORE, the appeal is DISMISSED. The Decision of the Court
of Appeals is AFFIRMED.
SO ORDERED.

G.R. No. L-28232 February 6, 1971

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JAIME JOSE Y GOMEZ, ET AL., defendants. JAIME JOSE Y
GOMEZ, BASILIO PINEDA, JR., alias "BOY," EDGARDO AQUINO
Y PAYUMO and ROGELIO CAAL Y SEVILLA, defendantsappellants.
PER CURIAM:
The amended complaint filed in this case in the court below, reads
as follows:
The undersigned complainant accuses JAIME JOSE Y
GOMEZ, BASILIO PINEDA, JR. Alias "BOY," EDUARDO
AQUINO Y PAYUMO alias "EDDIE" and ROGELIO
CAAL Y SEVILLA alias "ROGER," as principals, WONG
LAY PUENG, SILVERIO GUANZON Y ROMERO and
JESSIE GUION Y ENVOLTARIO as accomplices, of the
crime of Forcible Abduction with rape, committed as
follows:

That on or about the 26th day of June, 1967, in

Quezon City, and within the jurisdiction of this
Honorable Court, the above-named principal
accused, conspiring together, confederating with and
mutually helping one another, did, then and there,
wilfully, unlawfully and feloniously, with lewd design,
forcibly abduct the undersigned complainant against
her will, and did, then and there take her, pursuant to
their common criminal design, to the Swanky Hotel in
Pasay City, where each of the four (4) accused, by
means of force and intimidation, and with the use of
a deadly weapon, have carnal knowledge of the
undersigned complainant against her will, to her
damage and prejudice in such amount as may be
awarded to her under the provisions of the civil code.
That WONG LAY PUENG, SILVERIO GUANZON y
ROMERO, and JESSIE GUION y ENVOLTARIO without
taking a direct part in the execution of the offense
either by forcing, inducing the principal accused to
execute, or cooperating in its execution by an
indispensable act, did, then and there cooperate in
the execution of the offense by previous or
simultaneous acts, that is, by cooperating, aiding,
abetting and permitting the principal accused in
sequestering the undersigned complainant in one of
the rooms of the Swanky Hotel then under the
control of the accused Wong Lay Pueng, Silverio
Guanzon y Romero and Jessie Guion y Envoltario,
thus supplying material and moral aid in the
consummation of the offense.
That the aforestated offense has been attended by
the following aggravating circumstances:
1. Use of a motor vehicle.
2. Night time sought purposely to facilitate the
commission of the crime and to make its discovery
difficult;
3. Abuse of superior strength;

4. That means were employed or circumstances

brought about which added ignominy to the natural
effects of the act; and
5. That the wrong done in the commission of the
crime be deliberately augmented by causing other
wrong not necessary for the commission.
CONTRARY TO LAW.
Upon arraignment, Basilio Pineda, Jr. pleaded guilty to the charge
imputed in the above-quoted amended complaint; however, in an
order dated July 11, 1967, the court reserved judgment "until such
time as the prosecution shall have concluded presenting all of its
evidence to prove the aggravating circumstances listed in the
complaint." Upon the other hand, the rest of the defendants went
to trial on their respective pleas of not guilty. After the merits, the
court below rendered its decision on October 2, 1967, the
dispositive portion of which reads as follows:
WHEREFORE, the Court finds the accused Jaime Jose,
Rogelio Caal, Eduardo Aquino and Basilio Pineda, Jr.
guilty beyond reasonable doubt of the crime of
forcible abduction with rape as described under Art.
335 of the Revised Penal Code, as amended, and
hereby sentences each of them to the death penalty
to be executed at a date to be set and in the manner
provided for by law; and each to indemnify the
complainant in the amount of ten thousand pesos.
On the ground that the prosecution has failed to
establish a prima facie case against the accomplices
Wong Lay Pueng, Silverio Guanzon y Romero, and
Jessie Guion y Envoltario, the Motion to Dismiss filed
for and in their behalf is hereby granted, and the
case dismissed against the aforementioned accused.
Insofar as the car used in the abduction of the victim
which Jaime Jose identified by pointing to it from the
window of the courtroom and pictures of which were
submitted and marked as Exhibits "M" and "M-1,"
and which Jaime Jose in his testimony admitted
belonged to him, pursuant to Art. 45 of the Revised
Penal Code, which requires the confiscation and
forfeiture of the proceeds or instruments of the
crime, the Court hereby orders its confiscation.

This case is now before us by virtue of the appeal interposed by

Basilio Pineda, Jr., Edgardo Aquino, and Jaime Jose, and for
automatic review as regards Rogelio Caal. However, for practical
purposes all of them shall hereafter be referred to as appellants.
The complainant, Magdalena "Maggie" de la Riva, was, at the time
of the incident, 25 years old and single; she graduated from high
school in 1958 at Maryknoll College and finished the secretarial
course in 1960 at St. Theresa's College. Movie actress by
profession, she was receiving P8,000.00 per picture. It was part of
her work to perform in radio broadcasts and television shows,
where she was paid P800.00 per month in permanent shows,
P300.00 per month in live promotional shows, and from P100.00 to
P200.00 per appearance as guest in other shows.
So it was that at about 4:30 o'clock in the morning of June 26,
1967, Miss De la Riva, homeward bound from the ABS Studio on
Roxas Blvd., Pasay City, was driving her bantam car accompanied
by her maid Helen Calderon, who was also at the front seat. Her
house was at No. 48, 12th Street, New Manila, Quezon City. She
was already near her destination when a Pontiac two-door
convertible car with four men aboard (later identified as the four
appellants) came abreast of her car and tried to bump it. She
stepped on her brakes to avoid a collision, and then pressed on the
gas and swerved her car to the left, at which moment she was
already in front of her house gate; but because the driver of the
other car (Basilio Pineda, Jr.) also accelerated his speed, the two
cars almost collided for the second time. This prompted Miss De la
Riva, who was justifiably annoyed, to ask: "Ano ba?" Forthwith,
Pineda stopped the car which he was driving, jumped out of it and
rushed towards her.
The girl became so frightened at this turn of events that she tooted
the horn of her car continuously. Undaunted, Pineda opened the
door of Miss De la Riva's car and grabbed the lady's left arm. The
girl held on tenaciously to her car's steering wheel and, together
with her maid, started to scream. Her strength, however, proved no
match to that of Pineda, who succeeded in pulling her out of her
car. Seeing her mistress' predicament, the maid jumped out of the
car and took hold of Miss De la Riva's right arm in an effort to free
her from Pineda's grip. The latter, however, was able to drag Miss
De la Riva toward the Pontiac convertible car, whose motor was all
the while running.

When Miss De la Riva, who was being pulled by Pineda, was very
near the Pontiac car, the three men inside started to assist their
friend: one of them held her by the neck, while the two others held
her arms and legs. All three were now pulling Miss De la Riva inside
the car. Before she was completely in, appellant Pineda jumped
unto the driver's seat and sped away in the direction of Broadway
Street. The maid was left behind.
The complainant was made to sit between Jaime Jose and Edgardo
Aquino at the back seat; Basilio Pineda, Jr. was at the wheel, while
Rogelio Caal was seated beside him. Miss De la Riva entreated the
appellants to release her; but all she got in response were jeers,
abusive and impolite language that the appellants and threats that
the appellants would finish her with their Thompson and throw acid
at her face if she did not keep quiet. In the meantime, the two men
seated on each side of Miss De la Riva started to get busy with her
body: Jose put one arm around the complainant and forced his lips
upon hers, while Aquino placed his arms on her thighs and lifted
her skirt. The girl tried to resist them. She continuously implored
her captors to release her, telling them that she was the only
breadwinner in the family and that her mother was alone at home
and needed her company because her father was already dead.
Upon learning of the demise of Miss De la Riva's father, Aquino
remarked that the situation was much better than he thought since
no one could take revenge against them. By now Miss De la Riva
was beginning to realize the futility of her pleas. She made the sign
of the cross and started to pray. The appellants became angry and
cursed her. Every now and then Aquino would stand up and talk in
whispers with Pineda, after which the two would exchange knowing
glances with Caal and Jose.
The car reached a dead-end street. Pineda turned the car around
and headed towards Victoria Street. Then the car proceeded to
Araneta Avenue, Sta. Mesa Street, Shaw Boulevard, thence to
Epifanio de los Santos Avenue. When the car reached Makati,
Aquino took a handkerchief from his pocket and, with the help of
Jose, blindfolded Miss De la Riva. The latter was told not to shout or
else she would be stabbed or shot with a Thompson. Not long after,
the car came to a stop at the Swanky Hotel in Pasay City The
blindfolded lady was led out of the car to one of the rooms on the
second floor of the hotel.
Inside the room Miss De la Riva was made to sit on a bed. Her
blindfold was removed. She saw Pineda and Aquino standing in
front of her, and Jose and Caal sitting beside her, all of them

smiling meaningfully. Pineda told the complainant: "Magburlesque

ka para sa amin." The other three expressed their approval and
ordered Miss De la Riva to disrobe. The complainant ignored the
command. One of the appellants suggested putting off the light so
that the complainant would not be ashamed. The idea, however,
was rejected by the others, who said that it would be more
pleasurable for them if the light was on. Miss De la Riva was told to
remove her stocking in order, according to them, to make the
proceedings more exciting. Reluctantly, she did as directed, but so
slowly did she proceed with the assigned task that the appellants
cursed her and threatened her again with the Thompson and the
acid. They started pushing Miss De la Riva around. One of them
pulled down the zipper of her dress; another unhooked her
brassiere. She held on tightly to her dress to prevent it from being
pulled down, but her efforts were in vain: her dress, together with
her brassiere, fell on the floor.
The complainant was now completely naked before the four men,
who were kneeling in front of her and feasting their eyes on her
private parts. This ordeal lasted for about ten minutes, during
which the complainant, in all her nakedness, was asked twice or
thrice to turn around. Then Pineda picked up her clothes and left
the room with his other companions. The complainant tried to look
for a blanket with which to cover herself, but she could not find
one.
Very soon, Jose reentered the room and began undressing himself.
Miss De la Riva, who was sitting on the bed trying to cover her
bareness with her hands, implored him to ask his friends to release
her. Instead of answering her, he pushed her backward and pinned
her down on the bed. Miss De la Riva and Jose struggled against
each other; and because the complainant was putting up stiff
resistance, Jose cursed her and hit her several times on the
stomach and other parts of the body. The complainant crossed her
legs tightly, but her attacker was able to force them open. Jose
succeeded in having carnal knowledge of the complainant. He then
left the room.
The other three took their turns. Aquino entered the room next. A
struggle ensued between him and Miss De la Riva during which he
hit, her on different parts of the body. Like Jose, Aquino succeeded
in abusing the complainant. The girl was now in a state of shock.
Aquino called the others into the room. They poured water on her
face and slapped her to revive her. Afterwards, three of the accused
left the room, leaving Pineda and the complainant After some

struggle during which Pineda hit her, the former succeeded in

forcing his carnal desire on the latter. When the complainant went
into a state of shock for the second time, the three other men went
into the room again poured water on the complainant's face and
slapped her several times. The complainant heard them say that
they had to revive her so she would know what was happening.
Jose, Aquino and Pineda then left the room. It was now appellant
Canal's turn. There was a struggle between him and Miss De la
Riva. Like the other three appellants before him, he hit the
complainant on different parts of the body and succeeded in forcing
his carnal lust on her.
Mention must be made of the fact that while each of mention must
be made the four appellants was struggling with the complainant,
the other three were outside the room, just behind the door,
threatening the complainant with acid and telling her to give in
because she could not, after all, escape what with their presence.
After the appellants had been through with the sexual carnage,
they gave Miss De la Riva her clothes, told her to get dressed and
put on her stockings, and to wash her face and comb her hair, to
give the impression that nothing had happened to her. They told
her to tell her mother that she was mistaken by a group of men for
a hostess, and that when the group found out that she was a movie
actress, she was released without being harmed. She was warned
not to inform the police; for if she did and they were apprehended,
they would simply post bail and later hunt her up and disfigure her
face with acid. The appellants then blindfolded Miss De la Riva
again and led her down from the hotel room. Because she was
stumbling, she had to be carried into the car. Inside the car, a
appellant Jose held her head down on his lap, and kept it in that
position during the trip, to prevent her from being seen by others.
Meanwhile, the four appellants were discussing the question of
where to drop Miss De la Riva. They finally decided on a spot in
front of the Free Press Building not far from Epifanio de los Santos
Avenue near Channel 5 to make it appear, according to them, that
the complainant had just come from the studio. Pineda asked Jose
to alight and call a taxicab, but to choose one which did not come
from a well-known company. Jose did as requested, letting several
taxicabs pass by before flagging a UBL taxicab. After they warned
again Miss De la Riva not to inform anyone of what had happened
to her, appellant Canal accompanied her to the taxicab. The time
was a little past 6:00 o'clock. When Miss De la Riva was already
inside the cab and alone with the driver, Miguel F. Campos, she

broke down and cried. She kept asking the driver if a car was
following them; and each time the driver answered her in the
negative.

one of the four men he abducted and raped her. She executed
another statement (Exh. "B-1") wherein she made a formal
identification of Jose and related the role played by him.

It was 6:30 o'clock or some two hours after the abduction

when Miss De la Riva reached home. Her mother, her brother-in-law
Ben Suba, as well as several PC officers, policemen and reporters,
were at the house. Upon seeing her mother, the complainant ran
toward her and said, "Mommy, Mommy, I have been raped. All four
of them raped me." The mother brought her daughter upstairs.
Upon her mother's instruction, the complainant immediately took a
bath and a douche. The older woman also instructed her daughter
to douche himself two or three times daily with a strong solution to
prevent infection and pregnancy. The family doctor, who was
afterwards summoned, treated the complainant for external
physical injuries. The doctor was not, however, told about the
sexual assaults. Neither was Pat. Pablo Pascual, the police officer
who had been sent by the desk officer, Sgt. Dimla, to the De la Riva
residence when the latter received from a mobile patrol a report of
the snatching. When Miss De la Riva arrived home from her
harrowing experience, Pat. Pascual attempted to question her, but
Ben Suba requested him to postpone the interrogation until she
could be ready for it. At that time, mother and daughter were still
undecided on what to do.

At about 9:00 o'clock of the same evening, appellant Jose executed

a statement (Exh. "I") before Pat. Marcos G. Vias. In his statement,
which was duly sworn. Jose admitted that he knew about, and was
involved in, the June 26 incident. He named the other line
appellants as his companions. Jose stated, among other things, that
upon the initiative of Pineda, he and the other three waited for Miss
De la Riva to come out of the ABS Studio; that his group gave chase
to the complainant's car; that it was Pineda who blindfolded her
and that only Pineda and Aquino criminally assaulted the
complainant.
After Exh, "I" was executed by Jose, an informant furnished Pat.
Vinas with a picture of appellant Edgardo Aquino. The picture was
shown to Miss De la Riva, who declared in her sworn statement
(Exh. "B-3") that the man in the picture was one of her abductors
and rapists. The same picture was shown to Jose, who, in another
sworn statement (Exh. "I-l"), identified the man in the picture as
appellant Aquino.

On the afternoon of June 28, 1967, the complainant family gathered

to discuss what steps, if any, should be taken. After some agonizing
moments, a decision was reached: the authorities had to be
informed. Thus, early on the morning of June 29, 1967, or on the
fourth day after the incident, Miss De la Riva, accompanied by her
lawyer, Atty. Regina O. Benitez, and by some members of the
family, went to the Quezon City Police Department Headquarters,
filed a complaint and executed a statement (Exh. "B") wherein she
narrated the incident and gave descriptions of the four men who
abused her. In the afternoon of the same day, the complainant
submitted herself ito a medico-internal examination by Dr. Ernesto
Brion, NBI Chief Medico-Legal Officer.

After the apprehension of Jose, the other three soon fell into the
hands of the authorities: Pineda and Caal on July 1, 1967, in Lipa
City, and Aquino on July 5, 1967, in the province of Batangas. On
the evening of July 1, 1967. Miss De la Riva pointed to Pineda and
Caal as among the four persons who abducted and raped her. She
picked them out from among several person in the Office of the
Chief of Police of Quezon City. Later in the same evening, Miss De la
Riva executed a sworn statement (Exh. B-2)wherein she made the
same identification of the two appellants from among a group of
persons in the Office of the Chief of the Detective Bureau, adding
that appellant Caal had tattoo marks on his right hip. After the
identification, one of the policemen took appellant Caal
downstairs and undressed him, and he saw, imprinted on the said
appellant's right hip, the words "Bahala na Gang."

During the physical examination of the complainant by Dr. Brion on

June 29, 1967, Pat. Pascual was also at the NBI office. There he
received a telephone call from the police headquarters to the effect
that one of the suspects had been apprehended. That evening, the
complainant and Pat. Pascual proceeded to the headquarters where
Miss De la Riva identified appellant Jaime Jose from among a group
of persons inside the Office of the Chief of Police of Quezon City as

Appellant Caal and Pineda executed and swore to separate

statements on the day of their arrest. In his statement (Exh. "G"),
appellant Caal confirmed the information previously given by Jose
that the four of them waited for Miss De la Riva to come down from
the ABS Studio, and that they had planned to abduct and rape her.
Appellant Caal admitted that all four of them participated in the
commission of the crime, but he would make it appear that insofar

as he was concerned the complainant yielded her body to him on

condition that he would release her. Pineda executed a statement
(Exh. "J") stating that he and his other three companions wept to
the ABS Studio, and that, on learning that Miss De la Riva was
there, they made plans to wait for her and to follow her. He
admitted that his group followed her car and snatched her and took
her to the Swanky Hotel. He would make it appear, however, that
the complainant voluntarily acceded to having sexual intercourse
with him.
In his medical report (Exh. "K"), Dr. Brion noted the presence of
multiple contusions and bruises on different parts of the
complainant's body, as well as of genital injuries. On the witness
stand the doctor was shown several photographs of the
complainant taken in his presence and under his supervision. With
the aid of the photographs and the medical reports, the doctor
explained to the court that he found contusions or bruises on the
complainant's chest, shoulders, arms and fore-arms, right arm
index finger, thighs, right knee and legs. He also declared that
when he was examining her, Miss De la Riva complained of slight
tenderness around the neck, on the abdominal wall and at the sites
of the extragenital physical injuries, and that on pressing the said
injuries, he elicited a sigh of pain or tenderness on the part of the
subject. The injuries, according to Dr. Brion, could have been
caused blows administered by a closed fist or by the palm of the
hand, and could have been inflicted on the subject while she was
being raped. It was the doctor's opinion that they could have been
sustained on or about June 26, 1967. In connection with the genital
examination, the doctor declared that he found injuries on the
subject's genitalia which could have been produced by sexual
intercourse committed on June 26, 1967. He said that he failed to
find spermatozoa. He explained, however, that spermatozoa are
not usually found in the vagina after the lapse of three days from
the last intercourse, not to mention the possibility that the subject
might have douched herself.
The three appellants who pleaded not guilty (Jose, Aquino and
Caal) took the witness stand. We quote hereunder the portions of
the decision under review relative to the theory of the defense:
Their story is that they and their co-accused Pineda
had gone to the Ulog Cocktail Lounge somewhere in
Mabini street in Manila, and there killed time from
9:30 in the evening of June 25 until closing time,
which was about 3:30 in the early morning of the

next day. At the cocktail lounge they had listened to

the music while enjoying some drinks. Between them
they had consumed a whole bottle of whisky, so
much so that at least Aquino became drunk,
according to his own testimony. They had been
joined at their table by a certain Frankie whom they
met only that night. Come time to go home, their
new acquaintance asked to be dropped at his home
in Cubao. The five men piled into the red-bodied,
black topped two-door convertible Plymouth (Pontiac)
car of Jaime Jose, and with Pineda at the wheel
repaired to Cubao After dislodging their new friend,
Pineda steered the car to Espaa Extension to bring
Aquino to his home in Mayon Street. But somewhere
in Espaa Extension before the Rotonda a small car
whizzed to them almost hitting them. They saw that
the driver was a woman. Pineda gave chase and
coming abreast of the small car he shouted, "Putang
ina mo, kamuntik na kaming mamatay." The woman
continued on her way. Now Pineda saying "let us
teach her a lesson," sped after her and when she
swerved ostensibly to enter a gate, Pineda stopped
his car behind being hurriedly got down, striding to
the small car, opened the door and started dragging
the girl out. Both Jose and Aquino confirm the
presence of another woman inside the girl's car, who
helped the girl struggle to get free from Pineda's
grip; and that the struggle lasted about ten minutes
before Pineda finally succeeded in pushing the girl
into the red convertible. All the three accused insist
they did nothing to aid Pineda: but they also admit
that they did nothing to stop him.
Now the defense contends that Pineda cruised
around and around the area just to scare the girl who
was in truth so scared that she begged them to let
her be and return her to her home. She turned to
Jose in appeal, but this one told her he could net do
anything as the "boss" was Pineda. Aquino heard her
plead with Jose "do you not have a sister yourself?"
but did not bear the other plea 'do you not have a
mother?' Then Pineda stopped at the corner of the
street where he had forcibly snatched the girl
presumably to return her, but then suddenly
changing his mind he said, 'why don't you do a strip
tease for us. I'll pay you P1,000.00 and the girl

taunted, 'are you kidding?': that after a little while

she consented to do the performance as long as it
would not last too long and provided the spectators
were limited to the four of them.
Pineda sped the car until they got to Swanky Hotel
where he and Maggie alighted first, but not before
Maggie had borrowed a handkerchief from one of
them to cover her face as she went up the Hotel. The
three followed, and when they saw the pair enter a
room, they quickly caught up. All the three accused
testify that as soon as they got into the room, Maggie
de la Riva asked the boys to close the windows
before she. undressed in front of them. They
themselves also removed their clothing. Two of them
removed their pants retaining their briefs, while Boy
Pineda and Caal stripped to the skin "because it was
hot." The three accused declared that they saw Boy
Pineda hand P100.00 to Maggie and they heard him
promise her that he would pay the balance of
P900.00 later. Whereupon, the show which lasted
about 10 minutes began with the naked girl walking
back and forth the room about 4 to 5 times. This
accomplished, all of them dressed up once more and
the three accused (Jaime Jose, Eduardo Aquino and
Rogelio Caal) left the room to wait in the car for Boy
Pineda and Maggie de la Riva who were apparently
still discussing the mode of payment of the balance.
Three minutes later Maggie de la Riva and Boy
Pineda joined them. Now, the question of how and
where to drop Maggie came up and it is testified to
by the accused that it was Maggie's idea that they
should drop her near the ABS Studio so that it would
appear as if she had just come from her work.
Jaime Jose was picked by the police on the morning
of June 29 along Buendia Avenue. Aquino testifies
how, on June 29 Pineda went to him with a problem.
He did not have the P900.00 with which to pay
Maggie the balance of her "show" and he was afraid
that if he did not pay, Maggie would have her goons
after him. He wanted Aquino to go with him to Lipa
City where he had relatives and where he could help
raise the money. Aquino readily obliged, and to make
the company complete they invited Caal to join

them. They used another car of Jaime Jose, different

from the one they had used the day before. At Lipa,
Aquino detached himself from his compassions and
proceeded alone to the barrio allegedly to visit his
relatives. In the meantime his two companions had
remained in the City and had, according to Canal,
gone to live in a house very close to the municipal
hall building. They later moved to another house
where the PC and Quezon City police posse found
and arrested them. Aquino was the last to be
apprehended, when having read in the newspapers
that he was wanted, he surrendered on July 5 to Mrs.
Aurelia Leviste, wife of the governor of Batangas.
The striptease-act-for-a-fee story on which the defense theory is
anchored, defies one's credulity and reason, and had utterly to
counteract the evidence for the prosecution, particularly the
complainant's testimony and Dr. Brion's medical report and
testimony. We quote with approval the able dissertion of the trial
judge on this point:
As main defense in the charge of rape, the three
accused advance the proposition that nothing
happened in Swanky Hotel except a strip-tease
exhibition which the complaint agreed to do for them
for fee of P1,000.00, P100.00 down and the balance
to be paid "later." The flaw in this connection lies in
its utter inverisimilitude. The Court cannot believe
that any woman exists, even one habitual engaged in
this kind of entertainment (which Maggie de la Riva
has not been proven to be) who would consent (and
as easily and promptly as defense claims) to do a
performance, not even for all money in the worlds
after the rough handling she experienced from these
wolves in men's clothing who now hungered for a
show. There is no fury to match a woman stirred to
indignation. A woman's pride is far stronger than her
yen for money, and her revenge much more keen.
The Court cannot believe that after the rudeness and
meanness of these men to her, Maggie would in so
short an interval of time forget her indignation and
so readily consent to satisfy their immoral curiosity
about her. The woman in her would urge her to turn
the men's hankering as a weapon of revenge by
denying them their pleasure.

Besides, the manner of payment offered for the

performance is again something beyond even the
wildest expectations. Assuming that the woman
whom the accused had abducted was in this kind of
trade assuming that the price offered was to her
satisfaction, whom woman would be willing to
perform first and be paid later? It is simply
preposterous to believe that Maggie de la Riva
should have consent to do a striptease act for a
measly down-payment of P100.00 and the balance to
be paid God knows when. Since when are exposition
of the flesh paid on the installment basis? By the
very precautious nature of their pitiful calling, women
who sell their attractions are usually very shrewed
and it is to be expected that they could
demand full payment before curtain call. How was
Maggie to collect later when she did not even know
who these man were, where they lived, whether they
could be trusted with a promise to pay later (!)
whether she could ever find them again? If there is
anything that had struck the Court about the
complaint, it is her courage, her intelligence and her
alertness. Only a stupid woman, and a most stupid
one that, could have been persuaded to do what the
defense want this Court to believe Maggie de la Riva
consented to do.
Finally, it is odd that not one of these men should
have mentioned this circumstances during their
interview with anyone, either the press, their police
interrogator, the person who negotiated their
surrender (as in the case of Aquino) or even their
counsel. One cannot escape the very strong
suspicion that this story is a last ditch, desperate
attempt to save the day for the accused. It truly
underscores the hopelessness of their stand and
projects all the more clearly their guilt.
Then there is the incident of the men's stripping
themselves. Why was there need for this? The Court
realizes that in its desperate need of an explanation
for Maggie's positive identification of Caal as the
man with the tattoo mark on his right buttock, the
defense concocted the sickeningly incident story that
the four men removed their underclothing in the

presence of a woman simply "because it was hot."

What kind of men were these who were so devoid of
any sense of decency that they thought nothing of
adding insult to injury by not only inducing a woman
a strip before them, but for forcing her to perform
before a naked audience? And then they have gall to
argue that "nothing" happened. For males of cold
and phlegmatic blood and disposition it could be
credible, but not for men of torrid regions like ours
where quick passions and hot tempers are the rule
rather than the exception!
All of these consideration set aside, notwithstanding, it is quite
obvious that the version of the defense has not been able to
explain away a very vital piece of evidence of prosecution which, if
unexplained, cannot but reduce any defense unavailing. The result
of the physical (external and internal) examination conducted on
the person of Maggie de la Riva in the afternoon of June 29, the
pertinent findings of which quoted earlier in this decision, establish
beyond doubt that at the time that Maggie de la Riva was
examined she bore on her body traces of physical and sexual
assault.
The only attempt to an explanation made by the
defense is either one of the following: (1) the
insinuation that when Maggie de la Riva and Boy
Pineda were left behind in the hotel room the bruises
and the sexual attack could have taken place then.
But then, the defense itself says that these two
persons
rejoined
the
three
after three
or
four minutes! It is physically impossible, in such a
short time, for Boy Pineda to have attacked the girl
and inflicted on her all of these injuries; (2) it was
suggested by the defense that Maggie de la Riva
could have inflicted all of those injuries upon herself
just to make out a case against the accused. The
examining physician rules out this preposterous
proposition, verily it does not take much stretch of
the imagination to see how utterly impossible this
would be, and for what purpose? Was P900.00 which
she had failed to collect worth that much self-torture?
And what about all the shame, embarrassment and
publicity she would (as she eventually did) expose
herself to? If she really had not been raped would she
have gone thru all of these tribulation?

A woman does not easily trump up rape charges for

she has much more to lose in the notoriety the case
will reap her, her honor and that of her family, than
in the redress she demands (Canastre 82-480;
Medina, C.A. 1943 O.G. 151; Medina y Puno, CA O.G.
338; CA 55 O.G. 7666; Galamito, L-6302, August 25,
1954); (3) it could also be argued that the contusions
and bruises could have been inflicted on Maggie
during her struggle with Pineda when the latter
pulled and pushed her into the red convertible car.
The telltale injuries, however, discount this
possibility, for the location in which many of the
bruises and traumas were located (particularly on the
inner portion of her thighs) could not have been
cause by any struggle save by those of a woman
trying to resists the brutal and bestial attack on her
honor.
In their Memorandum the accused contend that
Maggie's sole and uncorroborated testimony should
not be rated any credence at all as against the
concerted declaration of the the accused. In the first
place, it is not correct to say that Maggie's
declaration was uncorroborated she has for
corroboration nothing less than the written extrajudicial statements of Jose and Canal. But even
assuming that Maggie stood alone in her statements,
the cases cited by the accused in their Memorandum
notwithstanding which the Court does not consider in
point anyway, jurisprudence has confirmed the ruling
that numbers is the least vital element in gauging
the weight of evidence. What is more important is
which of the declarations is the more credible, the
more logical, the more reasonable, the more prone to
be biased or polluted. (Ricarte 44 OG 2234; Damian
CA-GR No. 25523, April 24, 1959). Besides, it should
be borne in maid that in the most detestable crime of
rape in which a man is at his worst the testimony of
the offended party most often is the only one
available to prove directly its commission and that
corroboration by other eyewitnesses would in certain
cases place a serious doubt as to the probability of
its commission, so trial courts of justice are most
often placed in a position of having to accept such
uncorroborated testimony if the same is in regards

conclusive, logical and probable (Landicho, VIII ACR

530).
We shall now consider the points raised by the appellants in their
briefs.
1. Appellants Jose, Aquino and Caal deny having had anything to
do with the abduction of Miss De la Riva. They point to Pineda (who
entered a plea of guilty) as the sole author thereof, but they
generously contend that even as to him the act was purged at any
taint of criminality by the complainant's subsequent consent to
perform a striptease show for a fee, a circumstance which, it is
claimed, negated the existence of the element of lewd design. This
line of defense has evidently leg no to stand on. The evidence is
clear and overwhelming that all the appellants participated in the
forcible abduction. Miss De la Riva declared on the witness stand,
as well as in her sworn statements, that they helped one another in
dragging her into the car against her will; that she did not know
them personally; that while inside the car, Jose and Aquino,
between whom she was seated, toyed with her body, the former
forcing his lips on hers, and the latter touching her thighs and
raising her skirt; that meaningful and knowing glances were in the
meanwhile being exchanged among the four; and that all of them
later took turns in ravishing her at the Swanky Hotel. This
testimony, whose evidentiary weight has not in the least been
overthrown by the defense, more than suffices to establish the
crimes charged in the amended complaint. In the light thereof,
appellants' protestation that they were not motivated by lewd
designs must be rejected as absolutely without factual basis.
2. The commission of rape by each of the appellants has, as held by
the court below, likewise been clearly established. Jose, Aquino and
Canal contend that the absence of semen in the complainant's
vagina disproves the fact of rape. The contention is untenable. Dr.
Brion of the NBI, who testified as an expert, declared that semen is
not usually found in the vagina after three days from the last
intercourse, especially if the subject has douched herself within
that period. In the present case, the examination was conducted on
the fourth day after the incident, and the complainant had douched
herself to avoid infection and pregnancy. Furthermore, the absence
of spermatozoa does not disprove the consummation of rape, the
important consideration being, not the emission of semen, but
penetration (People vs Hernandez, 49 Phil., 980). Aquino's
suggestion that the abrasions on the cervix were caused by the
tough tip of a noozle deliberately used by the complainant to

strengthen her alleged fabricated tale of rape, is absurd, if not

cruel. It is difficult to imagine that any sane woman, who is single
and earning as much Miss Dela Riva did, would inflict injuries on
her genital organ by puncturing the same with a sharply-pointed
instrument in order to strike back at four strangers who allegedly
would not pay her the sum of P900.00 due her for a striptease act.
Besides, Dr. Brion testified that the insertion of such an instrument
in the genital organ would not result in the kind of injuries he found
in the mucosa of the cervix.
3. Other evidence and considerations exist which indubitably
establish the commission of successive rapes by the four
appellants. Upon Miss De la Riva's arrival at her house in the
morning of June 26, 1967, she immediately told her mother, "
Mommy Mommy, I have been raped. All four of them raped me."
This utterance, which is part of theres gestae, commands strong
probative value, considering that it was made by the complainant
to her mother who, in cases of this nature was the most logical
person in whom a daughter would confide the truth. Aquino and
Canal would make capital of the fact that Miss De la Riva stated to
the reporters on the morning of June 26, that she was not abused.
Her statement to the press is understandable. At that time the
complainant, who had not yet consulted her family on a matter
which concerned her reputation as well as that of her family, and
her career, was not then in a position to reveal publicly what had
happened to her. This is one reason why the complainant did not
immediately inform the authorities of the tragedy that befell her.
Another reason is that she was threatened with disfiguration. And
there were, of course, the traumas found by Dr. Brion on different
parts of the complainant's body. Could they, too, have been selfinflicted? Or, as suggested, could they possibly have been inflicted
by appellant Pineda alone, when the story given by the other three
is that Pineda and the complainant were left in the hotel room for
only three or four minutes, and that they came out to join them in
what they would picture to be a cordial atmosphere, the
complainant even allegedly suggesting that she be dropped on a
spot where people would reasonably presume her to have come
from a studio? Equally important is the complainant's public
disclosure of her tragedy, which led to the examination of her
private parts and lay her open to risks of future public ridicule and
diminution of popularity and earnings as a movie actress.
4. Jose and Canal seek the exclusion of their extrajudicial
statements from the mass of evidence on the grounds that they
were secured from them by force and intimidation, and that the

incriminating details therein were supplied by the police

investigators. We are not convinced that the statements were
involuntarily given, or that the details recited therein were
concocted by the authorities. The statements were given in the
presence of several people and subscribed and sworn to before the
City Fiscal of Quezon City, to whom neither of the aforesaid
appellants intimated the use of inordinate methods by the police.
They are replete with details which could hardly be known to the
police; and although it is suggested that the authorities could have
secured such details from their various informers, no evidence at all
was presented to establish the truth of such allegation. While in
their statements Jose and Canal admitted having waited together
with the two other appellants for Miss De la Riva at the ABS
Studio, each of them attempted in the same statements to
exculpate himself: appellant Jose stated that only Pineda and
Aquino criminally abused the complainant; while appellant Canal
would make it appear that the complainant willingly allowed him to
have sexual intercourse with her. Had the statements been
prepared by the authorities, they would hardly have contained
matters which were apparently designed to exculpate the affiants.
It is significant, too, that the said two appellants did not see it fit to
inform any of their friends or relatives of the alleged use of force
and intimidation by the police. Dr. Mariano Nario of the Quezon City
Police Department, who examined appellant Canal after the latter
made his statement, found no trace of injury on any part of the said
appellant's body in spite of the claims that he was boxed on the
stomach and that one of his arms was burned with a cigarette
lighter. In the circumstances, and considering, further, that the
police officers who took down their statements categorically denied
on the witness stand that the two appellants were tortured, or that
any detail in the statements was supplied by them or by anyone
other than the affiants themselves, We see no reason to depart
from the trial court's well-considered conclusion that the
statements were voluntarily given. However, even disregarding the
in-custody statements of Jose and Canal, We find that the mass of
evidence for the prosecution on record will suffice to secure the
conviction of the two.
The admissibility of his extrajudicial statements is likewise being
questioned by Jose on the other ground that he was not assisted by
counsel during the custodial interrogations. He cites the decisions
of the Supreme Court of the United States in Messiah vs. U.S. (377
U.S. 201), Escobedo vs. Illinois (378 U.S. 478) and Miranda vs.
Arizona (384 U.S. 436).

The provision of the Constitution of the Philippines in point is Article

III (Bill of Rights), Section 1, par. 17 of which provides: "In all
criminal prosecutions the accused shall ... enjoy the right to be
heard by himself and counsel ..." While the said provision is
identical to that in the Constitution of the United States, in this
jurisdiction the termcriminal prosecutions was interpreted by this
Court, in U.S. vs. Beecham, 23 Phil., 258 (1912), in connection with
a similar provision in the Philippine Bill of Rights (Section 5 of Act of
Congress of July 1, 1902) to mean proceedings before the trial court
from arraignment to rendition of the judgment. Implementing the
said constitutional provision, We have provided in Section 1, Rule
115 of the Rules of Court that "In all criminal prosecutions the
defendant shall be entitled ... (b) to be present and defend in
person and by attorney at every stage of the proceedings, that is,
from the arraignment to the promulgation of the judgment." The
only instances where an accused is entitled to counsel before
arraignment, if he so requests, are during the second stage of the
preliminary investigation (Rule 112, Section 11) and after the arrest
(Rule 113, Section 18). The rule in the United States need not be
unquestioningly adhered to in this jurisdiction, not only because it
has no binding effect here, but also because in interpreting a
provision of the Constitution the meaning attached thereto at the
time of the adoption thereof should be considered. And even there
the said rule is not yet quite settled, as can be deduced from the
absence of unanimity in the voting by the members of the United
States Supreme Court in all the three above-cited cases.
5. Appellant Pineda claims that insofar as he is concerned there
was a mistrial resulting in gross miscarriage of justice. He contends
that because the charge against him and his co-appellants is a
capital offense and the amended complaint cited aggravating
circumstances, which, if proved, would raise the penalty to death, it
was the duty of the court to insist on his presence during all stages
of the trial. The contention is untenable. While a plea of guilty is
mitigating, at the same time it constitutes an admission of all the
material facts alleged in the information, including the aggravating
circumstances, and it matters not that the offense is capital, for the
admission (plea of guilty) covers both the crime and its attendant
circumstances qualifying and/or aggravating the crime (People vs.
Boyles, et al., L-15308, May 29, 1964, citing People vs. Ama, L14783, April 29, 1961, and People vs. Parete, L-15515, April 29,
1961). Because of the aforesaid legal effect of Pineda's plea of
guilty, it was not incumbent upon the trial court to receive his
evidence, much less to require his presence in court. It would be
different had appellant Pineda requested the court to allow him to
prove mitigating circumstances, for then it would be the better part

of discretion on the part of the trial court to grant his request. (Cf.
People vs. Arconado, L-16175, February 28, 1962.) The case of U.S.
vs. Agcaoili (31 Phil., 91), cited by Pineda, is not in point, for there
this Court ordered a new trial because it found for a fact that the
accused, who had pleaded guilty, "did not intend to admit that he
committed the offense with the aggravating circumstances"
mentioned in the information. We are not in a position to make a
similar finding here. The transcript of the proceedings during the
arraignment shows that Pineda's counsel, Atty. Lota prefaced his
client's plea of guilty with the statement that .
I have advised him (Pineda) about the technicalities
in plain simple language of the contents of
aggravating circumstances and apprised him of the
penalty he would get, and we have given said
accused time to think. After a while I consulted him
for three times and his decision was still the
same.
Three days after the arraignment, the same counsel stated in court
that he had always been averse to Pineda's idea of pleading guilty,
because "I know the circumstances called for the imposition of the
maximum penaltyconsidering the aggravating circumstances," but
that he acceded to his client's wish only after the fiscal had stated
that he would recommend to the court the imposition of life
imprisonment on his client. To be sure, any such recommendation
does not bind the Court. The situation here, therefore, is far
different from that obtaining in U.S. vs. Agcaoili, supra.
6. Two of the appellants Jose and Caal bewail the enormous
publicity that attended the case from the start of investigation to
the trial. In spite of the said publicity, however, it appears that the
court a quo was able to give the appellants a fair hearing. For one
thing, three of the seven (7) original accused were acquitted. For
another thing, Jose himself admits in his brief that the Trial Judge
"had not been influenced by adverse and unfair comments of the
press, unmindful of the rights of the accused to a presumption of
innocence and to fair trial."
We are convinced that the herein four appellants have conspired
together to commit the crimes imputed to them in the amended
information quoted at the beginning of this decision. There is no
doubt at all that the forcible abduction of the complainant from in
front of her house in Quezon City, was a necessary if not
indispensable means which enabled them to commit the various

and the successive acts of rape upon her person. It bears noting,
however, that even while the first act of rape was being performed,
the crime of forcible abduction had already been consummated, so
that each of the three succeeding (crimes of the same nature can
not legally be considered as still connected with the abduction in
other words, they should be detached from, and considered
independently of, that of forcible abduction and, therefore, the
former can no longer be complexed with the latter.
What kind of rape was committed? Undoubtedly, it is that which is
punishable by the penalty of reclusion perpetuato death, under
paragraph 3, Article 335, as amended by Republic Act No. 4111
which took effect on June 20, 1964, and which provides as follows:
ART. 335. When and how rape committed.Rape is
committed by having carnal knowledge of a woman
under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of age,
even though neither of the circumstances mentioned
in the two next preceding paragraphs shall be
present.
The crime of rape shall be punished by reclusion
perpetua.
Whenever the crime of rape is committed with the
use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the
victim has become insane, the penalty shall be
death.
When the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion
thereof, the penalty shall be likewise death.

When by reason or on the occasion of the rape, a

homicide is committed, the penalty shall be death.
As regards, therefore, the complex crime of forcible abduction with
rape, the first of the crimes committed, the latter is definitely the
more serious; hence, pursuant the provision of Art. 48 of the
Revised Penal Code, the penalty prescribed shall be imposed in its
maximum period. Consequently, the appellants should suffer the
extreme penalty of death. In this regard, there is hardly any
necessity to consider the attendance of aggravating circumstances,
for the same would not alter the nature of the penalty to be
imposed.
Nevertheless, to put matters in their proper perspective and for the
purpose of determining the proper penalty to be imposed in each of
the other three crimes of simple rape, it behooves Us to make a
definite finding in this connection to the effect that the commission
of said crimes was attended with the following aggravating
circumstances: (a) nighttime, appellants having purposely sought
such circumstance to facilitate the commission of these crimes; (b)
abuse of superior strength, the crime having been committed by
the four appellants in conspiracy with one another (Cf. People vs.
De Guzman, et al., 51 Phil., 105, 113); (c) ignominy, since the
appellants in ordering the complainant to exhibit to them her
complete nakedness for about ten minutes, before raping her,
brought about a circumstance which tended to make the effects of
the crime more humiliating; and (d) use of a motor vehicle. With
respect to appellants Jose, Aquino and Ca__al, none of these
aggravating circumstances has been offset by any mitigating
circumstance. Appellant Pineda should, however, be credited with
the mitigating circumstance of voluntary plea of guilty, a factor
which does not in the least affect the nature of the proper penalties
to be imposed, for the reason that there would still be three
aggravating circumstances remaining. As a result, appellants
should likewise be made to suffer the extreme penalty of death in
each of these three simple crimes of rape. (Art. 63, par. 2, Revised
Penal Code.)
In refusing to impose as many death penalties as there are offenses
committed, the trial court applied by analogy Article 70 of the
Revised Penal Code, which provides that "the maximum duration of
all the penalties therein imposed upon the appellant shall not be
more than threefold the length of time corresponding to the most
severe of the penalties imposed upon the appellant, which should
not exceed forty years." The said court is of the opinion that since a

man has only one life to pay for a wrong, the ends of justice would
be served, and society and the victim would be vindicated just as
well, if only one death penalty were imposed on each of the
appellants.
We cannot agree with the trial court. Article 70 of the Revised Penal
Code can only be taken into account in connection with the service
of the sentence imposed, not in the imposition of the penalty
(People vs. Escares, 55 Off. Gaz., 623). In holding that only one
death penalty should be imposed because man has only one life,
the trial court ignored the principle enunciated in the very case it
cited, namely, U.S. vs. Balaba, 37 Phil., 260, where this Court, in
affirming the judgment of the trial court, found the accused guilty
of two murders and one homicide and imposed upon him two death
sentences for the murders and a prison term for the homicide. In
not applying the said principle, the court a quo said that the case of
Balaba is different from the present case, for while in the former
case the accused was found to have committed three distinct
offenses, here only one offense is charged, even if complex. As We
have explained earlier herein, four crimes were committed, charged
and proved. There is, therefore, no substantial difference between
the two cases insofar as the basic philosophy involved is
concerned, for the fact remains that in the case of Balaba this Court
did not hesitate to affirm the two death sentences imposed on the
accused by the trial court. In People vs. Peralta, et al., L-19060,
October 29, 1968, in which this Court imposed on each of the six
accused three death penalties for three distinct and separate
crimes of murder, We said that "since it is the settled rule that once
conspiracy is established, the act of one conspirator is attributable
to all, then each conspirator must be held liable for each of the
felonious acts committed as a result of the conspiracy, regardless
of the nature and severity of the appropriate penalties prescribed
by law." In the said case (which was promulgated after the decision
of the court a quo had been handed down) We had occasion to
discuss at length the legality and practicality of imposing multiple
death penalties, thus:
The imposition of multiple death penalties is decried
by some as a useless formality, an exercise in futility.
It is contended, undeniably enough, that a death
convict, like all mortals, has only one life to forfeit.
And because of this physiological and biological
attribute of man, it is reasoned that the imposition of
multiple death penalties is impractical and futile
because after the service of one capital penalty, the

execution of the rest of the death penalties will

naturally be rendered impossible. The foregoing
opposition to the multiple imposition of death
penalties suffers from four basic flaws: (1) it fails to
consider the legality of imposing multiple capital
penalties; (2) it fails to distinguish between
imposition of penalty and service of sentence; (3) it
ignores the fact that multiple death sentences could
be served simultaneously; and (4) it overlooks the
practical merits of imposing multiple death penalties.
The imposition of a penalty and the service of a
sentence are two distinct, though related, concepts.
The imposition of the proper penalty or penalties is
determined by the nature, gravity and number of
offenses charged and proved, whereas service of
sentence is determined by the severity and character
of the penalty or penalties imposed. In the imposition
of the proper penalty or penalties, the court does not
concern itself with the possibility or practicality of the
service of the sentence, since actual service is a
contingency subject to varied factors like the
successful escape of the convict, grant of executive
clemency or natural death of the prisoner. All that go
into the imposition of the proper penalty or penalties,
to reiterate, are the nature, gravity and number of
the offenses charged and proved and the
corresponding penalties prescribed by law.
Multiple death penalties are not impossible to serve
because
they
will
have
to
be
executed
simultaneously. A cursory reading of article 70 will
show that there are only two moves of serving two or
more
(multiple)
penalties:
simultaneously
or successively. The first rule is that two or more
penalties shall be served simultaneously if the nature
of the penalties will so permit. In the case of multiple
capital penalties, the nature of said penal sanctions
does not only permit but actually necessitates
simultaneous service.
The imposition of multiple death penalties, far from
being a useless formality, has practical importance.
The sentencing of an accused to several capital
penalties is an indelible badge of his extreme

criminal perversity, which may not be accurately

projected by the imposition of only one death
sentence irrespective of the number of capital
felonies for which he is liable. Showing thus the
reprehensible character of the convict in its real
dimensions, the possibility of a grant of executive
clemency is justifiably reduced in no small measure.
Hence, the imposition of multiple death penalties
could effectively serve as deterrent to an improvident
grant of pardon or commutation. Faced with the utter
delinquency of such a convict, the proper
penitentiary authorities would exercise judicious
restraint in recommending clemency or leniency in
his behalf.

On April 4, 1967, Mrs. Dolores Gomez, mother of an appellant Jaime

G. Jose, bought the car from the Malayan Motors Corporation and
simultaneously executed a chattel mortgage thereon to secure
payment of the purchase price of P13,200, which was stipulated to
be payable in 24 monthly installments of P550 beginning May 4,
1967 up to April 4, 1969. The mortgage was duly registered with
the Land Transportation Commission and inscribed in the Chattel
Mortgage Registry. The mortgage lien was annotated on the motor
registration certificate. On April 17, 1967, for value received and
with notice to Mrs. Gomez, the Malayan Motors Corporation
assigned its credit against Mrs. Gomez, as well as the chattel
mortgage, to the intervenor. The assignment was duly registered
with the Land Transportation Commission and annotated on the
registration certificate.

Granting, however, that the Chief Executive, in the

exercise of his constitutional power to pardon (one of
the presidential prerogatives which is almost
absolute) deems it proper to commute the multiple
death penalties to multiple life imprisonments, then
the practical effect is that the convict has to serve
the maximum forty (40) years of multiple life
sentences. If only one death penalty is imposed, and
then is commuted to life imprisonment, the convict
will have to serve a maximum of only thirty years
corresponding to a single life sentence.

Mrs. Gomez failed to pay any of the installments due, in view of

which the intervenor filed on July 5, 1967, an action for replevin
against her (Civil Case No. 69993, Court of First Instance of Manila)
as a preliminary step to foreclosure of the chattel mortgage. On July
7, 1967, the court issued an order for the seizure of the car. The
sheriff, however, could not enforce the writ of replevin because the
car was not in Mrs. Gomez' possession, the same having been used
by her son, appellant Jaime G. Jose, together with the other
appellants in this case, in the abduction of Miss De la Riva, as a
result of which the car was seized by the Quezon City police and
placed in the custody of Major San Diego, who refused to surrender
it to the sheriff on the ground that it would be used as evidence in
the trial of the criminal case.

We are, therefore, of the opinion that in view of the existence of

conspiracy among them and of our finding as regards the nature
and number of the crimes committed, as well as of the presence of
aggravating circumstances, four death penalties should be imposed
in the premises.

Before Us is a petition for intervention filed by Filipinas Investment

& Finance Corporation asking for reversal of that portion of the
judgment of the court below ordering the confiscation of the car
used by the appellants in abducting the complainant. The aforesaid
car is a 1965 two-door Pontiac sedan with Motor No. WT-222410,
Serial No. 2376752110777, Plate No. H-33284, File No. 11584171,
alleged by the intervenor to be in the custody of Major Ernesto San
Diego of the Quezon City Police Department. The car is registered
in the name of Mrs. Dolores Gomez.

During the pendency of that criminal case in the court below, or on

July 26, 1967, the intervenor filed with the said court a petition for
intervention. The said petition was not, however, acted upon. On
October 2, 1967, the trial court rendered its judgment in the
present case ordering the car's confiscation as an instrument of the
crime. Although not notified of the said decision, the intervenor
filed, on October 17, 1967, a motion for reconsideration of the
order of confiscation; but the same was denied on October 31,
1967, on the ground that the trial court had lost jurisdiction over
the case in view of the automatic elevation thereof to this Court.
The intervenor then filed a petition for relief from judgement, but
the same was also denied.
On February 5, 1968, judgement was rendered in the replevin case
ordering Mrs. Gomez to deliver the car to the intervenor so that the
chattel mortgage thereon could be foreclosed, or, in the alternative,

to pay the intervenor the sum of P13,200 with interest thereon at

12% per annum from July 5, 1968, the premium bond, attorney's
fees, and the costs of suit. The judgment became final and
executory. Attempts to execute the judgment against the properties
of Mrs. Gomez were unavailing; the writ of execution was returned
by the sheriff unsatisfied. On July 26, 1968, the present petition for
intervention was filed with this Court, which allowed the intervenor
to file a brief. In his brief the Solicitor General contends, among
others, that the court a quo having found that appellant Jose is the
owner of the car, the order of confiscation is correct.
Considering that the car in question is registered in the name of
Mrs. Dolores Gomez, who, in the absence of strong evidence to the
contrary, must be considered as the lawful owner thereof; that the
only basis of the court a quo in concluding that the said car belongs
to appellant Jose were the latter's statements during the trial of the
criminal case to that effect; that the said statement were not,
however, intended to be, nor could constitute, a claim of ownership
over the car adverse to his mother, but were made simply in
answer to questions propounded in court for the sole purpose of
establishing the identity of the defendant who furnished the car
used by the appellants in the commission of the crime; that the
chattel mortgage on the car and its assignment in the favor of the
intervenor were made several months before the date of
commission of the crimes charged, which circumstance forecloses
the possibility of collusion to prevent the State from confiscating
the car; that the final judgement in the replevin case can only be
executed by delivering the possession of the car to the intervenor
for foreclosure of the chattel mortgage; and the Article 45 of the
Revised Penal Code bars the confiscation and forfeiture of an
instrument or tool used in the commission of the crime if such "be
the property of a third person not liable for the offense," it is the
sense of this Court that the order of the court below for confiscation
of the car in question should be set aside and that the said car
should be ordered delivered to the intervenor for foreclosure as
decreed in the judgment of the Court of First Instance of Manila in
the replevin case, Civil Case No. 69993.

Before the actual promulgation of this decision, this Court received

a formal manifestation on the part of the Solicitor General to the
effect that Rogelio Caal, one of the herein appellants, died in
prison on December 28, 1970. As a result of this development, this
case is hereby dismissed as to him alone, and only insofar as his

criminal liability is concerned, with one-fourth (1/4) of the costs

declared de oficio.
WHEREFORE, the judgment under review is hereby modified as
follows: appellants Jaime G. Jose, Basilio Pineda, Jr., and Edgardo P.
Aquino are pronounced guilty of the complex crime of forcible
abduction with rape, and each and every one of them is likewise
convicted of three (3) other crimes of rape. As a consequence
thereof, each of them is hereby sentenced to four (4) death
penalties; all of them shall, jointly and severally, indemnify the
complainant of the sum of P10,000.00 in each of the four crimes, or
a total of 40,000.00; and each shall pay one-fourth (1/4) of the
costs.
Insofar as the car used in the commission of the crime is
concerned, the order of the court a quo for its confiscation is
hereby set aside; and whoever is in custody thereof is hereby
ordered to deliver its possession to intervenor Filipinas Investment
& Finance Corporation in accordance with the judgment of the
Court of First Instance of Manila in Civil Case No. 69993 thereof.

G.R. No. L-40995 June 25, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EULALIO BOHOS, ET AL., defendant-appellant.
PER CURIAM:
This is a review on appeal of the decision dated December 18,
1974, of the Court of First Instance of Lanao del Norte, Branch IV,
Iligan City, in Criminal Case No. 1440 convicting Eulalio Bohos of
the complex crime of Forcible Abduction with Rape and sentencing
him to die for each of the thirteen (13) separate acts of rape
committed on the person of the complaint the dispositive portion of
which reads.
WHEREFORE, the Court finds the accused Eulalio
Bohos GUILTY as principal and beyond reasonable
doubt of the common crime of Forcible Abduction
with Rape under Articles 335 and 342 of the Revised
Penal Code with the attending aggravating
circumstances of nighttime and taking advantage of
superior strength and number with no attending
mitigating circumstance and hereby sentences the
said accused to suffer the supreme penalty of death
for each of the thirteen (13) separate acts of rape
committed on the person of Myrna de la Vega.
Further, the accused is sentenced to indemnify Myrna
de la Vega in the amount of P500.00 for actual
damages representing her expenses in coming to
testify in this case in Iligan City from San Carlos City,
P12,000.00 for moral damages and P6,000.00 for
exemplary damages.
Finally he is sentenced to pay the costs of this
proceedings.
On September 17, 1966, a Saturday, Myrna de la Vega, then 16
years old and a student of the Immaculate Concepcion College in
Ozamis City left the residential home at Kapatagan, Lanao del
Norte, at 2:00 o'clock in the afternoon to see a movie in barrio

Maranding, Lala, Lanao del Norte, accompanied by a small child

who tagged along when Myrna went to the child's house in
Maranding. At about 4:00 o'clock the child got thirsty so Myrna took
her home but returned alone to view the rest of the film.
It was already 8:00 o'clock in the evening when she by left the
movie house to go home. In going to Maranding Myrna walked a
kilometer via the highway and she had to take the same route in
going home to Kapatagan. By that time the highway was already
deserted and although there were houses along the way the
occupants had already gone to bed. After walking for sometime she
noticed several persons approaching and as they came nearer they
turned out to be four men. Then she heard one of the men say,
"Bay, Bay, mayron babae She tried to run away from them but her
efforts proved futile for she was no match to the four men who
immediately caught up with her. One man held her right arm,
another held her left arm and the other two covered her mouth. A
passing cargo truck bound for Iligan City was stopped and she was
dragged along it. The four men rode with her at the rear of the
truck. Two men continued to hold her arms. A handkerchief was
then placed inside her mouth, her panty was removed and right
there on the truck one of the men abused her sexually. The cargo
truck was made to stop at Magpatao, another barrio of Lala where
she was forced to alight and taken to a small house along the
highway, belonging to Teodoro Engio. That night, Myrna was
ravished thirteen times, once in the truck and twelve times in the
house of Teodoro Engio where the four men took turns in ravishing
her three times each. Everytime she was abused one man held her
right hand, another held her left hand and another held her legs
wide apart. After that night's ordeal, Myrna's hands and feet were
tied. The following morning, September 18, 1966, her abductors
untied Myrna and each one again took turns in having carnal
knowledge of her while the others held her hands and her legs
apart. After they were through they tied her up again. All in all
Myrna was violated seventeen times.
Myrna was rescued at about 3:00 o'clock in the afternoon of
September 18, 1966 by then Kapatagan Mayor Bernardo Nietes
together with some of his policemen led by Desk Sergeant Apolonio
Pangilinan in coordination with Philippine Army soldiers, in response
to a report of Florencio Morilla a neighbor of the De la Vegas. They
found Myrna in the house of Teodoro Engio fast asleep wearing only
a "sando" while a small towel was wrapped around her waist to
cover her private parts. Beside her, also sleeping was Agustin
Nodado, one of the accused, who was in his underwear. Both were

interrogated right in the house and Agustin Nodado gave the

names of his companions as Teotimo Babanto, Felix Palcis and
Eulalio Bohos. Myrna looked weak and pale; she could not talk very
well and was trembling during the interrogation. However, she was
able to tell Mayor Nietes and Sgt. Pangilinan that she was
kidnapped and abused by four men including Nodado. That same
afternoon, Teotimo Babanto, Felix Palcis and Eulalio Bohos were
also arrested. Eulalio Bohos was arrested right along the highway of
Maranding where the raiding team passed him on their way back to
the Police Station of Kapatagan after the rescue of Myrna while
Teotimo Babanto and Felix Palcis were picked up in Baroy where
they were apprehended for pick-pocketing. Immediately after the
arrest of the three, Myrna Identified them as the companions of
Nodado who kidnapped her and took turns in raping her. Teodoro
Engio was also apprehended for questioning but he explained that
he allowed the four who were his friends just to pass the night at
his house. At the time of the trial Teodoro had already died.
On November 25, 1967, Felix Palcis, Teotimo Babanto and Eulalio
Bohos escaped from the provincial jail while Agustin Nodado
escaped on September 26, 1968, after he had stabbed to death the
guard on duty (Report of the Provincial Warden, Exhibit "A" Only
Eulalio Bohos had been rearrested as of arraignment date on March
18, 1974. He pleaded not guilty to the offense charged, was tried
and convicted as aforesaid. The three others are still at large.
The verified complaint filed by Myrna de la Vega with the Court of
First Instance of Lanao del Norte on January 18, 1968, against
Agustin Nodado, Teotimo Babanto, alias Toting alias Ernesto
Ybanez, Felix Palcis and Eulalio Bohos alleges:
That on or about the 17 the day of September 1966
in the barrio of Maranding, Municipality of Kapatagan,
Province of Lanao del Norte, Philippines, and within
the jurisdiction of this Honorable Court, the accused
Agustin Nodado, in company with Teotimo Babanto,
Felix Palcis and Eulalio Bohos, who have escaped
from confinement in the Provincial Jail last November
25, 1967, as detained prisoners in Crim. Case No.
1311 together with Agustin Nodado, and who are still
at large, armed with a deadly weapon, and with the
use thereof, conspiring together, confederating and
mutually helping with one another and with lewd
designs, did then and there wilfully, unlawfully and
feloniously take and carry away the undersigned by

force and violence or intimidation in a cargo truck

which happened to pass by bound for Iligan City and
while in the said truck, the said accused abused her
and upon reaching the barrio of Magpatao, Lala, this
province, the said accused stopped the truck and
forced her to alight thereon, dragged her to a certain
house at Magpatao where she was detained, the said
accused alternately and successively had sexual
intercourse with her against her wilt to the damage
and prejudice of the offended party.
At the time of the trial in 1974, Myrna had transferred her residence
to San Carlos City (Pangasinan) which explains the award of
P500.00 for her expenses in going to Iligan City in order to testify.
Mayor Nietes had abandoned politics and moved to Quezon,
Bukidnon, as a farmer. And Dr. Pablito P. Abragan Municipal Health
Officer of Kapatagan who performed the examination on Myrna was
killed in 1971 during an ambuscade so that his findings (Exh. "B")
had to be interpreted by Dr. Ramon Abragan, Jr., Provincial Health
Officer who gave the opinion that force was used on the person of
Myrna when she was sexually used.
Appellant's counsel de oficio, Mary Concepcion-Bautista, who is a
very capable lawyer, states in her brief:
At the outset, we must confess to an inner conflict as
to whether we should proceed as counsel de oficio
for the appellant after we found ourselves compelled
to accept that indeed the crane of forcible abduction
with rape had been committed, and that appellant
had guilty participation in its commission.
As this Honorable Court had aptly observed in its
previous decisions, no country lass would allow
herself to be so humiliated publicly unless she had
really suffered and been so victimized.
Furthermore, the half-nakedness of the victim at the
time of her rescue was an indication of what she had
gone through and one can surmise that she fell
asleep out of sheer physical weakness and
exhaustion. In addition, there was no reason to
question her Identification of the appellant when he
was apprehended on September 18, 1966 and in the
courtroom. Neither could we ignore the circumstance

that appellant escaped, instead of insisting on an

early trial which an innocent man would have done.
Nonetheless, appellant's counsel has raised certained points in an
effort to mitigate his criminal liability. Thus she argues that there
was no conspiracy among the four accused hence the appellant
should not be held liable for the acts of his co-accused.
It is true that there is no evidence in the record of a previous plan
among the accused to abduct Myrna in order to rape her. No
witness testified to having seen or heard the accused conspire or
confabulate. The whole incident happened because the four
accused met a woman walking alone at a deserted place at night.
But for collective responsibility to be establish it is not necessary
that conspiracy be proved by direct evidence of a prior agreement
to commit the crime. It is sufficient that at the time of the
commission of the offense all the accused acted in concert showing
that they had the same purpose or common design and were
united in its execution. (People vs. Cutura, G.R. No. L-12702, March
30, 1962, 4 SCRA 663; People vs. Verzo, G.R. No. L-22517, Dec. 26,
1967, 4 SCRA 1403; People vs. Estrada, G.R. No. L-26103, Jan. 17,
1968, 22 SCRA 111; People vs. Crisostomo, 46 Phil. 775 [1923];
People vs. Pajenado, G.R. No. L-26458, Jan. 30, 1976, 69 SCRA 172;
People vs. Aleta, G.R. No. L-40694, Aug. 31, 1976, 72 SCRA 542;
People vs. Cabiling, G.R. No. L-38091, Dec. 17, 1976, 74 SCRA 285;
People vs. Roncal, G.R. No. L-26857-58, Oct. 21, 1977, 79 SCRA
509; People vs. Cercano, G.R. No. L-37853, Nov. 21, 1978, 87 SCRA
1, citing People vs. Clarit, G.R. No. L-14150, Oct. 31, 1961, 3 SCRA
331, People vs. Castro, G.R. No. L-17465, Aug. 31, 1964, 11 SCRA
699, People vs. Mandayag, 46 Phil. 838 [1923].) The degree of
participation by each of them is immaterial (People vs.
Verzo, supra, citing People vs. Macul, 86 Phil. 423 [1950], People vs.
Bautil, G.R No. L-18997, Jan. 31, 1966, 16 SCRA 57, People vs.
Reyes, G.R. No. L-18892, May 30, 1966, 17 SCRA 309, People vs.
Akiran, G.R. No. Jr 18760, Sept. 29, 1966, 18 SCRA 239). The
simultaneous acts of the four accused two of them holding
Myrna's hands and the other two covering her mouth as they
accosted her on the highway; the four of them dragging Myrna
aboard the truck which they stopped and where she was violated
by one of them with the assistance and encouragement of the
three others; the four of them alternately and successively
ravishing her inside the house of Teodoro Engio three times each on
the night of September 17, 1966, and one each the following
morning while one held complainant's right arm, another held her
left arm and another stretched her legs wide apart - together with

other circumstances, make evident a community to design, an

indicia of a conspiracy to abduct complainant forcibly for the
satisfaction of their carnal desire against her will .
We are satisfied that there was conspiracy among the four accused
to abduct and rape Myrna so that the act of any one was also the
act of the others.
Appellant's other point is: "Even if we may assume purely for the
sake of argument that the complaining witness was forcibly
abducted and then raped thirteen times, we submit that there was
only one forcible abduction, with rape and that was the one
allegedly committed on the truck or jeep. Any subsequent acts of
intercourse in the house against her wig would be only separate
acts of rape and can no longer be considered separate complex
crimes of forcible abduction with rape.
This point is well taken. There was only one forcible abduction with
rape which was the one committed in the truck. Thus in People vs.
Jose, et al., G.R. No. L-28232, Feb. 6, 1971, 37 SCRA 450, where the
four accused forcibly abducted Maggie de la Riva and each of them
raped her, this Court held "that even while the first act of rape was
being performed, the crime of forcible abduction had already been
consummated, so that each of the three succeeding crimes of the
same nature can not legally be considered as still connected with
the abduction in other words, they should be detached from, and
considered independently of, that of forcible abduction and,
therefore, the former can no longer be complexed with the latter."
(At p. 475.)
We have examined the record to ascertain if there was indeed
forcible abduction with rape and other rapes in order to set our
minds at ease. And the evidence is over-whelming so as to satisfy
even the most skeptical reviewer that the crimes were in fact
committed.
We have Myrna's testimony that she was forcibly abducted and
then raped seventeen (17) times. Corroborating her were Bernards
Nietes, former Municipal Mayor of Kapatagan, Lanao del Norte, and
Apolonio P former Desk Sergeant in the Kapatagan Police Force,
concerning their rescue of Myrna in the afternoon of September 18,
1966, at Magpatao, Lala, Lanao del Sur, where she was brought by
her abductors, and their investigation of the case immediately after
the rescue which lead to the arrest of appellant Eulalio Bohos and
his companions Agustin Nodado, Teotimo Babanto and Felix Palcis.

Both Nietes and Pan testified that in that investigation, Agustin

Nodado Identified his three companions as Teotimo Babanto, Eulalio
Bohos and Felix Palcis. Pangilinan further testified that Teodoro
Engio who was also apprehended on the same date for questioning
Identified the four accused as his friends who asked his permission
to pass the night in his house. And then we have the testimony of
Dr. Ramon Abragan, Sr. to the effect that Myrna was abused when
she was sexually used according to Exhibit "B" which reads as
follows:
REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF HEALTH
FIELD OPERATIONS
REGIONAL HEALTH OFFICE NO. 7
RURAL HEALTH UNIT
KAPATAGAN, LANAO DEL NORTE
September 19, 1966
TO WHOM IT MAY CONCERN:
This is to certify that I personally performed the
examination of MYRNA DE LA VEGA, 16 years old,
single of Kapatagan, Tanso del Norte.
Findings:
Ocular inspection of the vulva revealed
(1) Fresh blood along the external os. (2) Peri-vulvar
hyperomia moderate, more prominent along both
sides of he clitoris.
Internal examination revealed:
1. One finger can be admitted with slight pain, but can
admit 2 fingers with difficulty on the part of the
examiner and severe pain on the part of the patient.

2. Tenderness upon lactation of the cervix.

3. Hymen incomplete with slight laceration at 8:30
o'clock.
4. Laceration of the cervix slight at 6:00 o'clock with
slight bleeding from the laceration.

(SGD) PABLITO P. ABRAGAN M.D.

Municipal Health Officer
The defense of the appellant is alibi. He claims that on September
17 and 18, 1966, he was in the house of Vicente Pangilinan at
Kapatagan, Lanao del Norte. We reject this defense. The defense of
alibi, which can be easily concocted, cannot prevail over the
positive Identification of the accused by the prosecution witness as
the author of the crime (People v. Cortez G.R. No. L-31104, Nov. 15,
1974, 61 SCRA 73). For alibi to prosper it is not enough to prove
that the accused was somewhere when the crime was committed
but that he must likewise demonstrate that it was physically
impossible for him to have been at the scene of the crime during its
commission (People v. Cortez, G.R. No. L-31106, May 31, 1974, 57
SCRA 308).
The aggravating circumstance of abuse of superior strength was
correctly appreciated by the trial court but it erred when it also
added nocturnity for there is no evidence to show that nighttime
was purposely chosen to facilitate the commission of the crime.
The aggravating circumstance of use of a motor vehicle should also
be appreciated.
The crimes thus proved to have been committed are forcible
abduction with rape and sixteen (16) separate rapes attended by
the aggravating circumstances of superiority and use of a motor
vehicle without any mitigating circumstance.
WHEREFORE, the judgment appealed from is modified in that
Eulalio Bohos is sentenced to suffer not thirteen (13) but seventeen
(17) death penalties; it is affirmed in all other respects. Costs de
officio.

SO ORDERED.

son and exempting him from liability by saying that it occurred

without the latter's intervention. Moreover, the trial judge who saw,
heard and observed her while she was testifying, did not find her
worthy of credit.
G.R. No. 24532

December 11, 1925

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
MATEO BERSABAL, defendant-appellant.
ROMUALDEZ, J.:
This prosecution was commenced by the following information:
That on or about May 8, 1925, in the municipality of Pototan,
Iloilo, the above named defendant did intentionally,
maliciously, criminally and treacherously and with cruelty,
strike Pablo Cordoba with a bolo with which he was
provided, inflicting a wound on the right side of the latter
and cutting off afterwards his two arms and legs as a result
of which he died; and in order to conceal his crime, the
defendant set fire to the house where the act had taken
place, which was completely burnt, the body of said Pablo
Cordoba having consequently been reduced to coal.
Contrary to law.
After trial, the Court of First Instance of Iloilo sentenced the
defendant to cadena perpetua, and to indemnify the heirs of the
deceased in the sum of P1,000, with the accessories provided by
law and the costs. From this judgment, the defendant appeals
through his counsel, assigning as errors the finding of the trial
judge that the crime in question was committed by the defendant,
his holding that its commission was attended by the circumstance
of treachery, and that the acts alleged in the information were
performed, and in not finding that there exists reasonable doubt.
We find it sufficiently proven beyond a reasonable doubt that the
defendant is the person responsible for the death of Pablo Cordoba,
as well as of the arson alleged in the information. We find in the
record no sufficient ground for doubting the veracity of the
witnesses for the prosecution, who affirmed having witnessed the
act. On the other hand, one cannot overlook the natural interest of
the witness Laurencia Panes, as mother of the defendant, when
explaining the death of the deceased in a manner favorable to her

The evidence shows that the appellant treacherously assaulted

Pablo Cordoba and caused his death, and afterwards set fire to; the
house where the crime had taken place, which was completely
burnt down.
Such a criminal act was not in any manner whatsoever justifiable,
and we do not find any merit in the assignments of error.
The information charges two crimes, murder and arson, which
cannot be considered as a complex crime, because neither was a
necessary means for committing the other, nor is this a case of one
single act constituting two or more crimes. Article 89 of the Penal
Code is, therefore, not applicable here. lawphil.net
In view of the fact that it was not proven that after Pablo Cordoba
had fallen to the ground, he was still alive when the defendant
continued to attack him, cutting off his extremities, it seeming, on
the contrary, to be inferred from the evidence of the prosecution
that said Cordoba was then already without life, the aggravating
circumstance of cruelty, that is the act of increasing the pain of the
offended party, cannot be taken into account, but that of the
defendant being stepson of the deceased can. (Art. 10, No. 1, Penal
Code; decision of the supreme court of Spain of July 26, 1877; I
Viada's Penal Code, question V under article 10, No. 1.)lawphi1.net
This aggravating circumstance is compensated by the mitigating
one consisting in the lack of instruction of the defendant considered
by the trial court.
As to the arson, the information does not allege the value of the
house in question, nor that it was inhabited; neither is there any
evidence of its value. This, however, does not mean that the act is
not punishable, which must be punished under article 557 of the
Penal Code, case No. 1. We, therefore, find the defendant guilty of
the crime of arson punished by said legal provision, with the
compensation of the above-mentioned circumstances, and for this
reason the penalty to be imposed for the crime of arson is the
medium degree of the penalty, which, in the instant case, is from 3
months and 11 days to 4 months and 20 days.

Wherefore, the judgment appealed from is modified, and the

appellant sentenced for the crime of murder to the penalty of
cadena perpetua, with the accessories provided by article 55 of the
Penal Code, and to indemnify the heirs of the deceased in the sum
of P1,000; and for the crime of arson, to 3 months and 11 days
of arresto mayor, with the accessories provided by article 61 of the
Penal Code, with the costs against the appellant. So ordered.

G.R. Nos. L-6025-26. July 18, 1956

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.
AMADO V. HERNANDEZ, ET AL.,Defendants-Appellants.
RESOLUTION
CONCEPCION, J.:
This
refers
to
the
petition
for
bail
filed
by Defendant Appellant Amado Hernandez on June 26, 1954, and
renewed on December 22, 1955. A similar petition, filed on
December 28, 1953, had been denied by a resolution of this court
dated February 2, 1954. Although not stated in said resolution, the
same
was
due
mainly
to
these
circumstances:chanroblesvirtuallawlibrary The
prosecution
maintains that Hernandez is charged with, and has been convicted
of, rebellion complexed with murders, arsons and robberies, for
which the capital punishment, it is claimed, may be imposed,
although the lower court sentenced him merely to life
imprisonment. Upon the other hand, the defense contends, among
other things, that rebellion cannot be complexed with murder,
arson, or robbery. Inasmuch as the issue thus raised had not been
previously settled squarely, and this court was then unable, as yet,
to reach a definite conclusion thereon, it was deemed best not to
disturb, for the time being, the course of action taken by the lower
court, which denied bail to the movant. After mature deliberation,
our
considered
opinion
on
said
issue
is
as
follows:chanroblesvirtuallawlibrary
The first two paragraphs of the amended information in this case
read:chanroblesvirtuallawlibrary

The undersigned accuses (1) Amado V. Hernandez alias Victor

alias Soliman alias Amado alias AVH alias Victor Soliman, (2)
Guillermo Capadocia alias Huan Bantiling alias Cap alias G.
Capadocia, (3) Mariano P. Balgos alias Bakal alias Tony Collantes
alias Bonifacio, (4) Alfredo Saulo alias Elias alias Fred alias A.B.S.
alias A.B., (5) Andres Baisa, Jr. alias Ben alias Andy (6) Genaro de la
Cruz alias Gonzalo alias Gorio alias Arong, (7) Aquilino Bunsol alias
Anong, (8) Adriano Samson alias Danoy, (9) Juan J. Cruz alias
Johnny 2, alias Jessie Wilson alias William, (10) Jacobo Espino, (11)
Amado Racanday, (12) Fermin Rodillas, and (13) Julian Lumanog
alias Manue, of the crime of rebellion with multiple murder, arsons
and robberies committed as follows:chanroblesvirtuallawlibrary
That on or about March 15, 1945, and for some time before the
said date and continuously thereafter until the present time, in the
City of Manila, Philippines, and the place which they had chosen as
the nerve center of all their rebellious activities in the different
parts of the Philippines, the said accused, conspiring,
confederating, and cooperating with each other, as well as with the
thirty-one (31) Defendants charged in criminal cases Nos. 14071,
14082, 14270, 14315, and 14344 of the Court of First Instance of
Manila (decided May 11, 1951) and also with others whose
whereabouts and identities are still unknown, the said accused and
their co-conspirators, being then officers and/or members of, or
otherwise associated with the Congress of Labor Organizations
(CLO) formerly known as the Committee on Labor Organization
(CLO), an active agency, organ, and instrumentality of the
Communist Party of the Philippines (P.K.P.), with central offices in
Manila and chapters and affiliated or associated labor unions and
other mass organizations in different places in the Philippines, and
as such agency, organ, and instrumentality, fully cooperates in, and
synchronizes its activities with the rebellious activities of the
Hukbong Magpalayang Bayan, (H.M.B.) and other organs,
agencies, and instrumentalities of the Communist Party of the
Philippines (P.K.P.) to thereby assure, facilitate, and effect the
complete and permanent success of the armed rebellion against
the Republic of the Philippines, as the herein Defendants and their
co-conspirators have in fact synchronized the activities of the CLO
with the rebellious activities of the HMB and other agencies, organs
and instrumentalities of the Communist Party of the Philippines and
have otherwise master- minded or promoted the cooperative efforts
between the CLO and HMB and other agencies, organs, and
instrumentalities of the P.K.P. in the prosecution of the rebellion
against the Republic of the Philippines, and being then also high
ranking officers and/or members of, or otherwise affiliated with, the
Communist Party of the Philippines (P.K.P.), which is now actively

engaged in an armed rebellion against the Government of the

Philippines through acts therefor committed and planned to be
further committed in Manila and other places in the Philippines, and
of which party the Hukbong Mapagpalaya ng Bayan (HMB),
otherwise or formerly known as the Hukbalahaps (Huks), is the
armed force, did then and there willfully, unlawfully and feloniously
help, support, promote, maintain, cause, direct and/or command
the Hukbong Mapagpalaya ng Bayan (HMB) or the Hukbalahaps
(Huks) to rise publicly and take arms against the Republic of the
Philippines, or otherwise participate in such armed public uprising,
for the purpose of removing the territory of the Philippines from the
allegiance to the government and laws thereof as in fact the said
Hukbong Mapagpalaya ng Bayan or Hukbalahaps have risen
publicly and taken arms to attain the said purpose by then and
there making armed raids, sorties and ambushes, attacks against
police, constabulary and army detachments as well as innocent
civilians, and as a necessary means to commit the crime of
rebellion, in connection therewith and in furtherance thereof, have
then and there committed acts of murder, pillage, looting, plunder,
arson, and planned destruction of private and public property to
create and spread chaos, disorder, terror, and fear so as to
facilitate the accomplishment of the aforesaid purpose, as follows,
to wit:chanroblesvirtuallawlibrary
Then follows a description of the murders, arsons and robberies
allegedly perpetrated by the accused as a necessary means to
commit the crime of rebellion, in connection therewith and in
furtherance thereof.
Article
48
of
the
Revised
that:chanroblesvirtuallawlibrary

Penal

Code

provides

When a single act constitutes two or more grave or less grave

felonies, or when an offense is a necessary means for committing
the other, the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period.
It is obvious, from the language of this article, that the same
presupposes the commission of two (2) or more crimes, and, hence,
does not apply when the culprit is guilty of only one crime.
Article 134 of said code reads:chanroblesvirtuallawlibrary
The crime of rebellion or insurrection is committed by rising
publicly and taking arms against the Government for the purpose of
removing from the allegiance to said Government or its laws, the
territory of the Philippine Islands or any part thereof, of any body of
land, naval or other armed forces, or of depriving the Chief

Executive or the Legislature, wholly or partially, of any of their

powers or prerogatives.
Pursuant to Article 135 of the same code any person, merely
participating or executing the commands of others in a rebellion
shall suffer the penalty of prision mayor in its minimum period.
The penalty is increased to prision mayor and a fine not to exceed
P20,000 for any person who promotes, maintains or heads a
rebellion or insurrection or who, while holding any public office or
employment, takes part therein:chanroblesvirtuallawlibrary
1. engaging in war against the forces of the government,
2. destroying property, or
3. committing serious violence,
4. exacting contributions or
5. diverting public funds from the lawful purpose for which they
have been appropriated.
Whether performed singly or collectively, these five (5) classes of
acts constitute only one offense, and no more, and are, altogether,
subject to only one penalty prision mayor and a fine not to
exceed P20,000. Thus for instance, a public officer who assists the
rebels by turning over to them, for use in financing the uprising, the
public funds entrusted to his custody, could neither be prosecuted
for malversation of such funds, apart from rebellion, nor accused
and convicted of the complex crime of rebellion with malversation
of public funds. The reason is that such malversation is inherent in
the crime of rebellion committed by him. In fact, he would not be
guilty of rebellion had he not so misappropriated said funds. In the
imposition, upon said public officer, of the penalty for rebellion it
would even be improper to consider the aggravating circumstance
of advantage taken by the offender of his public position, this being
an essential element of the crime he had perpetrated. Now, then, if
the office held by said offender and the nature of the funds
malversed by him cannot aggravate the penalty for his offense, it is
clear that neither may it worsen the very crime committed by the
culprit by giving rise, either to an independent crime, or to a
complex crime. Needless to say, a mere participant in the rebellion,
who is not a public officer, should not be placed at a more
disadvantageous position than the promoters, maintainers or
leaders of the movement, or the public officers who join the same,
insofar as the application of Article 48 is concerned.
One of the means by which rebellion may be committed, in the
words of said Article 135, is by engaging in war against the forces

of the government and committing serious violence in the

prosecution of said war. These expressions imply everything that
war connotes, namely;chan roblesvirtualawlibraryresort to arms,
requisition of property and services, collection of taxes and
contributions, restraint of liberty, damage to property, physical
injuries and loss of life, and the hunger, illness and unhappiness
that war leaves in its wake except that, very often, it is worse
than war in the international sense, for it involves internal struggle,
a fight between brothers, with a bitterness and passion or
ruthlessness seldom found in a contest between strangers. Being
within the purview of engaging in war and committing serious
violence, said resort to arms, with the resulting impairment or
destruction of life and property, constitutes not two or more
offense, but only one crime that of rebellion plain and simple.
Thus, for instance, it has been held that the crime of treason may
be committed by executing either a single or similar intentional
overt acts, different or similar but distinct, and for that reason, it
may be considered one single continuous offense. (Guinto vs.
Veluz, 77 Phil., 801, 44 Off. Gaz., 909.) (People vs. Pacheco, 93
Phil., 521.)
Inasmuch as the acts specified in said Article 135 constitute, we
repeat, one single crime, it follows necessarily that said acts offer
no occasion for the application of Article 48, which requires therefor
the commission of, at least, two crimes. Hence, this court has never
in the past, convicted any person of the complex crime of rebellion
with murder. What is more, it appears that in every one of the
cases of rebellion published in the Philippine Reports,
theDefendants were convicted of simple rebellion, although they
had killed several persons, sometimes peace officers (U. S. vs.
Lagnason, 3 Phil., 472; chan roblesvirtualawlibraryU. S. vs. Baldello,
3
Phil.,
509,
U.
S.
vs.
Ayala,
6
Phil.,
151; chan
roblesvirtualawlibraryLeague vs. People, 73 Phil., 155).
Following a parallel line are our decisions in the more recent cases
of treason, resulting from collaboration with the Japanese during
the war in the Pacific. In fact, said cases went further than the
aforementioned cases of rebellion, in that the theory of the
prosecution to the effect that the accused in said treason cases
were guilty of the complex crime of treason with murder and other
crimes was expressly and repeatedly rejected therein. Thus,
commenting on the decision of the Peoples Court finding the
accused in People vs. Prieto (80 Phil., 138, 45 Off. Gaz., 3329)
guilty of cralaw the crime of treason complexed by murder and
physical injuries and sentencing him to death, and on the
contention of the Solicitor General that Prieto had committed the

complex crime of treason with homicide, this court, speaking

through Mr. Justice Tuason, said:chanroblesvirtuallawlibrary
The execution of some of the guerrilla suspects mentioned in
these counts and the infliction of physical injuries on others are not
offenses separate from treason. Under the Philippine treason law
and under the United States constitution defining treason, after
which the former was patterned, there must concur both adherence
to the enemy and giving him aid and comfort. One without the
other does not make treason.
In the nature of things, the giving of aid and comfort can only be
accomplished by some kind of action. Its very nature partakes, of a
deed or physical activity as opposed to a mental operation.
(Cramer vs. U.S., ante.) This deed or physical activity may be, and
often is, in itself a criminal offense under another penal statute or
provision. Even so, when the deed is charged as an element of
treason it becomes identified with the latter crime and cannot be
the subject of a separate punishment, or used in combination with
treason to increase the penalty as Article 48 of the Revised Penal
Code provides. Just as one cannot be punished for possessing
opium in a prosecution for smoking the identical drug, and a robber
cannot be held guilty of coercion or trespass to a dwelling in a
prosecution for robbery, because possession of opium and force
and trespass are inherent in smoking and in robbery respectively,
so may not a Defendant be made liable for murder as a separate
crime or in conjunction with another offense where, as in this case,
it is averred as a constitutive ingredient of treason cralaw . Where
murder or physical injuries are charged as overt acts of
treason cralaw they cannot be regarded separately under their
general denomination. (Italics supplied.)
Accordingly, we convicted the accused of simple treason and
sentenced him to life imprisonment.
In People vs. Labra, 81 Phil., 377, 46 Off. Gaz., Supp. No. 1, p. 159,
we used the following language:chanroblesvirtuallawlibrary
The lower court found Appellant guilty not only of treason, but of
murder, for the killing of Tomas Abella, and, following the provisions
of Article 48 of the Revised Penal Code sentenced him to death, the
maximum penalty provided by article 114.
The lower court erred in finding Appellant guilty of the murder of
Tomas Abella. The arrest and killing of Tomas Abella for being a
guerilla, is alleged in count 3 of the information, as one of the
elements of the crime of treason for which Appellant is prosecuted.
Such element constitute a part of the legal basis upon
which Appellant stands convicted of the crime of treason. The

killing of Tomas Abella cannot be considered as legal ground for

convictingAppellant of any crime other than treason. The essential
elements of a given crime cannot be disintegrated in different
parts, each one stand as a separate ground to convict the accused
of a different crime or criminal offense. The elements constituting a
given crime are integral and inseparable parts of a whole. In the
contemplation of the law, they cannot be used for double or
multiple purposes. They can only be used for the sole purpose of
showing the commission of the crime of which they form part. The
factual complexity of the crime of treason does not endow it with
the functional ability of worm multiplication or amoeba
reproduction. Otherwise, the accused will have to face as many
prosecutions and convictions as there are elements in the crime of
treason, in open violation of the constitutional prohibition against
double jeopardy. (Italics supplied.)
The same conclusion was reached in People vs. Alibotod 82 Phil.,
164, 46 Off. Gaz., 1005, despite the direct participation of
the Defendant therein in the maltreatment and killing of several
persons.
In People vs. Vilo 82 Phil., 524, 46 Off. Gaz., 2517, we
held:chanroblesvirtuallawlibrary
The Peoples Court, however, erred in classifying the crime as
treason with murder. The killing of Amado Satorre and one Segundo
is charged as an element of treason, and it therefore becomes
identified with the latter crime, and cannot be the subject of a
separate punishment or used in combination with treason to
increase the penalty as Article 48 of the Revised Penal Code
provides. (People vs. Prieto, L-399, 45 Off. Gaz. 3329. See, also
People vs. Labra, L-886, 46 Off. Gaz., [Supp. to No. 1], 159.) (Italics
supplied.)
To the same effect was our decision in People vs. Roble 83 Phil., 1,
46 Off. Gaz., 4207. We stated therein:chanroblesvirtuallawlibrary
The court held that the facts alleged in the information is a
complex crime of treason with murders, with the result that the
penalty provided for the most serious offense was to be imposed on
its maximum degree. Viewing the case from the standpoint of
modifying circumstances, the court believed that the same result
obtained. It opined that the killings were murders qualified by
treachery and aggravated by the circumstances of evident
premeditation, superior strength, cruelty, and an armed band.
We think this is error. The tortures and murders set forth in the
information are merged in and formed part of the treason. They

were in this case the overt acts which, besides traitorous intention
supplied a vital ingredient in the crime. (Italics supplied.)
The accused in People vs. Delgado 83 Phil., 9, 46 Off. Gaz., 4213,
had been convicted by the Peoples Court of the crime of treason
complexed with the crime of murder and sentenced to the
extreme penalty. In our decision, penned by Mr. Justice
Montemayor,
we
expressed
ourselves
as
follows:chanroblesvirtuallawlibrary
The Appellant herein was and is a Filipino citizen. His adherence to
the Japanese forces of occupation and giving them aid and comfort
by acting as their spy, undercover man, investigator, and even
killer when necessary to cow and compel the inhabitants to
surrender their firearms and disclose information about the
guerrillas has been fully established. His manner of investigation
and maltreatment of some of his victims like Tereso Sanchez and
Patricio Suico, was so cruel, brutal and inhuman that it is almost
unbelievable that a Filipino can commit and practice such atrocities
especially on his own countrymen. But, evidently, war, confusion
and opportunism can and do produce characters and monster
unknown during peace and normal times.
The Peoples Court found the Appellant guilty of treason
complexed with murder. The Solicitor General, however, maintains
that the offense committed is simple treason, citing the doctrine
laid down by this court in the case of People vs. Prieto, (L-399, 45
Off. Gaz., 3329) but accompanied by the aggravating circumstance
under Article 14, paragraph 21, of the Revised Penal Code, and not
compensated by any mitigating circumstance, and he recommends
the imposition of the penalty of death. We agree with the Solicitor
General that on the basis of the ruling of this court in the case of
People vs. Prieto, supra, the Appellantmay be convicted only a
treason, and that the killing and infliction of physical injuries
committed by him may not be separated from the crime of treason
but should be regarded as acts performed in the commission of
treason, although, as stated in said case, the brutality with which
the killing or physical injuries were carried out may be taken as an
aggravating circumstance. (Italics supplied.)
and reduced the penalty from death to life imprisonment and a fine
of P20,000.
Identical were the pertinent features of the case of People vs.
Adlawan, 83 Phil., 194, 46 Off. Gaz., 4299, in which, through Mr.
Justice Reyes (A), we declared:chanroblesvirtuallawlibrary
cralaw we find merit in the contention that Appellant should have
not been convicted of the so called Complex crime of treason with

murder, robbery, and rape. The killings, robbery, and raping

mentioned in the information are therein alleged not as specific
offenses but as mere elements of the crime of treason for which the
accused is being prosecuted. Being merged in and identified with
the general charged they cannot be used in combination with the
treason to increase the penalty under Article 48 of the Revised
Penal Code. (People vs. Prieto, L-399, January 29, 1948, 45 Off.
Gaz., 3329.) Appellant should, therefore, be held guilty of treason
only. (Italics supplied.)
In People vs. Suralta, 85 Phil., 714, 47 Off. Gaz., 4595, the language
used was:chanroblesvirtuallawlibrary
cralaw But the Peoples Court erred in finding the Appellant guilty
of the complex crime of treason with murder, because murder was
an ingredient of the crime of treason, as we have heretofore held in
several cases. (Italics supplied.)
This was reiterated in People vs. Navea, 87 Phil., 1, 47 Off. Gaz.,
Supp. No. 12, p. 252:chanroblesvirtuallawlibrary
The Solicitor General recommends that the Appellant be
sentenced for the complex crime of treason with murder. We have
already ruled, however, that where, as in the present case, the
killing is charged as an element of treason, it becomes identified
with the latter crime and cannot be the subject of a separate
punishment, or used in combination with treason to increase the
penalty as Article 48 of the Revised Penal Code provides. (Italics
supplied.)
The question at bar was, also, taken up in the case of Crisologo vs.
People and Villalobos (94 Phil., 477), decided on February 26, 1954.
The facts and the rule therein laid down are set forth in our
unanimous
decision
in
said
case,
from
which
we
quote:chanroblesvirtuallawlibrary
The Petitioner Juan D. Crisologo, a captain in the USAFFE during
the last world war and at the time of the filing of the present
petition a lieutenant colonel in the Armed Forces of the Philippines,
was on March 12, 1946, accused of treason under Article 114 of the
Revised Penal Code in an information filed in the Peoples Court.
But before the accused could be brought under the jurisdiction of
the court, he was on January 13, 1947, indicted for violations of
Commonwealth Act No. 408, otherwise known as the Articles of
War, before a military court created by authority of the Army Chief
of Staff, the indictment containing three charges, two of which, the
first and third, were those of treason consisting in giving
information and aid to the enemy leaving to the capture of USAFFE
officers and men and other persons with anti-Japanese reputation

and in urging members of the USAFFE to surrender and cooperate

with the enemy, while the second was that of having certain
civilians filled in time of war. Found innocent of the first and third
charges but guilty of the second, he was on May, 8, 1947,
sentenced by the military court to life imprisonment.
With the approval on June 17, 1948, of Republic Act No. 311
abolishing the Peoples Court, the criminal case in that court
against the Petitioner was, pursuant to the provisions of said Act,
transferred to the Court of First Instance of Zamboanga and there
the charges of treason were amplified. Arraigned in that court upon
the amended information, Petitioner presented a motion to quash,
challenging the jurisdiction of the court and pleading double
jeopardy because of his previous sentence in the military court. But
the court denied the motion and, after Petitioner had pleaded not
guilty, proceeded to trial, whereupon, the present petition for
certiorari and prohibition was filed in this court to have the trial
judge desist from proceeding with the trial and dismiss the case.
It is, however, claimed that the offense charged in the military
court different from that charged in the civil court and that even
granting that the offense was identical the military court had no
jurisdiction to take cognizance of the same because the Peoples
Court had previously acquired jurisdiction over the case with the
result that the conviction in the court martial was void. In support
of the first point, it is urged that the amended information filed in
the Court of First Instance of Zamboanga contains overt acts
distinct from those charged in the military court. But we note that
while certain overt acts specified in the amended information in the
Zamboanga court were not specified in the indictment in the court
martial, they all are embraced in the general charge of treason,
which is a continuous offense and one who commits it is not
criminally liable for as many crimes as there are overt acts,
because all overt act he has done or might have done for that
purpose constitute but a single offense. (Guinto vs. Veluz, 44. Off.
Gaz., 909; chan roblesvirtualawlibraryPeople vs. Pacheco, L-4750,
promulgated July 31, 1953.) In other words, since the offense
charged in the amended information in the Court of First Instance of
Zamboanga is treason, the fact that the said information contains
an enumeration of additional ovart acts not specifically mentioned
in the indictment before the military court is immaterial since the
new alleged overt acts do not in themselves constitute a new and
distinct offense from that of treason, and this court has repeatedly
held that a person cannot be found guilty of treason and at the
same time also guilty of overt acts specified in the information for
treason even if those overt acts, considered separately, are
punishable by law, for the simple reason that those overt acts are

not separate offenses distinct from that of treason but constitute

ingredients thereof. (Italics supplied.)
Thus, insofar as treason is concerned, the opinion of this court, on
the question whether said crime may be complexed with murder,
when the former was committed through the latter, and it is so
alleged in the information, had positively and clearly crystalized
itself in the negative as early as January 29, 1948.
We have not overlooked the decision in People vs. Labra (L-1240,
decided on May 12, 1949), the dispositive part of which partly
reads:chanroblesvirtuallawlibrary
Wherefore, the verdict of guilty must be affirmed. Articles 48, 114
and 248 of the Revised Penal Code are applicable to the offense of
treason with murder. However for lack of sufficient votes to impose
the extreme penalty, the Appellant will be sentenced to life
imprisonment cralaw ..
Although it mentions Articles 48 and 248 of the Revised Penal Code
and the offense of treason with murder, it should be noted that
we affirmed therein the action of the Peoples Court, which,
according to the opening statement of our decision, convicted
Labra of treason aggravated with murder. Besides, the
applicability of said articles was not discussed in said decision. It is
obvious, from a mere perusal thereof, that this court had no
intention of passing upon such question. Otherwise, it would have
explained why it did not follow the rule laid down in the previous
cases of Prieto, Labra (August 10, 1948), Alibotod, Vilo, Roble,
Delgado and Adlawan (supra), in which the issue was explicitly
examined and decided in the negative. Our continued adherence to
this view in the subsequent cases of Suralta, Navea, Pacheco and
Crisologo, without even a passing reference to the second Labra
case, shows that we did not consider the same as reflecting the
opinion of the court on said question. At any rate, insofar as it
suggests otherwise, the position taken in the second Labra case
must be deemed reversed by our decisions in said cases of Suralta,
Navea, Pacheco and Crisologo.
It is true that treason and rebellion are distinct and different from
each other. This does not detract, however, from the rule that the
ingredients of a crime form part and parcel thereof, and, hence, are
absorbed by the same and cannot be punished either separately
therefrom or by the application of Article 48 of the Revised Penal
Code. Besides there is more reason to apply said rule in the crime
of rebellion than in that of treason, for the law punishing rebellion
(Article 135, Revised Penal Code) specifically mentions the act of
engaging in war and committing serious violence among its

essential elements thus clearly indicating that everything done

in the prosecution of said war, as a means necessary therefor, is
embraced therein unlike the provision on treason (Article 114,
Revised Penal Code) which is less explicit thereon.
It is urged that, if the crime of assault upon a person in authority or
an agent of a person in authority may be committed with physical
injuries (U. S. vs. Montiel, 9 Phil., 162), homicide (People vs. Lojo,
52 Phil., 390) and murder (U. S. vs. Ginosolongo, 23 Phil., 171; chan
roblesvirtualawlibraryU. S. vs. Baluyot, 40 Phil., 385), and rape may
be perpetrated with physical injuries (U. S. vs. Andaya, 34 Phil.,
690), then rebellion may, similarly, be complexed with murder,
arson, or robbery. The conclusion does not follow, for engaging in
war, serious violence, physical injuries and destruction of life and
property are inherent in rebellion, but not in assault upon persons
in authority or agents of persons in authority or in rape. The word
rebellion evokes, not merely a challenge to the constituted
authorities, but, also, civil war, on a bigger or lesser scale, with all
the evils that go with it, whereas, neither rape nor assault upon
persons in authority connotes necessarily, or even generally, either
physical injuries, or murder. 1
In support of the theory that a rebel who kills in furtherance of the
insurrection is guilty of the complex crime of rebellion with murder,
our attention has been called to Article 244 of the old Penal Code of
the Philippines, reading:chanroblesvirtuallawlibrary
Los delitos particulares cometidos en una rebelion o sedicion, o
con motivo de ellas, seran castigados respectivamente segun las
disposiciones de este Codigo.
Cuando no puedan descubrirse sus autores seran penados como
tales los jefes principales de la rebelion o sedicion.
and to the following observations of Cuello Calon (Derecho Penal,
Vol. II, p. 110), in relation thereto:chanroblesvirtuallawlibrary
Se establece aqui que el en una rebelion o sedicion, o con motivo
de ellas, comete otros delitos (v.g., roba, mata o lesiona), sera
responsable de estos ademas de los delitos de rebelion o sedicion.
La dificultad consiste en estos casos en separar los accidentes de la
rebelion o sedicion de los delitos independientes de estas, y como
las leyes no contienen en este punto precepto alguno aplicable, su
solucion ha quedado encomendada a los tribunales. La
jurisprudencia que estos han sentado considera como accidentes
de la rebelion o sedicion cuya criminalidad queda embedida en
la de estos delitos, y, por tanto, no son punibles especialmente
los hechos de escasa gravedad (v.g., atentados, desacatos,
lesiones menos graves); chan roblesvirtualawlibrarypor el contrario,

las infracciones graves, como el asesinato o las lesiones graves, se

consideran como delitos independientes de la rebelion o de la
sedicion.
It should be noted, however, that said Article 244 of the old Penal
Code of the Philippines has not been included in our Revised Penal
Code. If the applicability of Article 48 to rebellion was determined
by the existence of said Article 244, then the elimination of the
latter would be indicative of the contrary.
Besides, the crime of rebellion, referred to by Cuello Calon, was
that punished in the Spanish Penal Code, Article 243 of which
provides:chanroblesvirtuallawlibrary
Son reos de rebelion los que se alzaren publicamente y en abierta
hostilidad
contra
el Gobierno
para
cualquiera
de
los
objetossiguientes:chanroblesvirtuallawlibrary
1. Destronar al Rey, deponer al Regente o Regencia del Reino, o
privarles de su libertad personal u obligarles a ejecutar un acto
contrario a su voluntad.
2. Impedir la celebracion dc las elecciones para Diputados a
Cortes o Senadores en todo el Reino, o la reunion legitima de las
mismas.
3. Disolver las Cortes o impedir la deliberacion de alguno de los
Cuerpos Colegisladores o arrancarles alguna resolucion.
4. Ejecutar cualquiera de los delitos previstos en el articulo 165.
5. Sustraer el Reino o parte de el o algun cuerpo de tropa de
tierra o de mar, o cualquiera otra clase de fuerza armada, de la
obediencia del Supremo Gobierno.
6. Usar y ejercer por si o despojar a los Ministros de la Corona de
sus facultades constitucionales, o impedirles o coartarles su libre
ejercicio. (Articulo 167, Codigo Penal de 1850. Veanse las demas
concordancias del articulo 181.)
Thus, the Spanish Penal Code did not specifically declare that
rebellion includes the act of engaging in war against the forces of
the Government and of using serious violence for the purposes
stated in Article 134 of the Revised Penal Code. In view of this
express statutory inclusion of the acts of war and serious violence
among the ingredients of rebellion in the Philippines, it is clear that
the distinction made by Cuello Calon between grave and less grave
offenses committed in the course of an insurrection cannot be
accepted in this jurisdiction. Again, if both classes of offenses are
part and parcel of a rebellion, or means necessary therefor, neither
law nor logic justifies the exclusion of the one and the inclusion of

the other. In fact, Cuello Calon admits that the difficulty lies in
separating the accidents of rebellion or sedition from the offenses
independent therefrom. Ergo, offenses that are not independent
therefrom, but constituting an integral part thereof committed,
precisely, to carry out the uprising to its successful conclusion
are beyond the purview of Article 244. Indeed, the above quoted
statement of Cuello Calon to the effect that grave felonies
committed in the course of an insurrection are independent
therefrom was based upon a decision of the Supreme Court of
Spain of February 5, 1872, which we find reported in the Codigo
Penal
de
Filipinas,
by
Jose
Perez
Rubio,
as
follows:chanroblesvirtuallawlibrary
El Tribunal Supremo de Justicia en sentencia de 5 de Febrero de
1872, tiene declarado:chanroblesvirtuallawlibraryQue segun los
articulos 184 del Codigo Penal de 1830, y 259 del reformado
(1870), los delitos particulares cometidos en una rebelion o
sedicion o con motivo de ellas se castigan respectivamente segun
las
disposiciones
de
los
mismos
Codigos; chan
roblesvirtualawlibraryy con arreglo al decreto de amnistia de 9 de
Agosto de 1876 estan solo comprendidos en aquella gracia las
personas sentenciadas, procesadas o sujatas a responsabilidad por
delitos politicos de cualquiera especie -cometidos desde el 29 de
Septiembre de 1868; chan roblesvirtualawlibraryQue el asesinato
del Gobernador Civil de Burgos no fue resultado de movimiento
alguno politico, sino de un mero tumulto que imprimio el fanatismo,
y cuya unica aparente tendencia era impedir que aquel funcionario
inventariase ciertos objetos artisticos que se decian existentes en
la Catedral:chanroblesvirtuallawlibrary Que esto lo demuestran las
salvajes voces de muerte proferidas por los asesinos contra la
persona del Gobernador; chan roblesvirtualawlibrarysin que al
ejecutar en el mismo recinto del templo los horrorosos hechos que
aparecen en la causa, alzasen bandera politica alguna ni dieran
otro grito que el, en aquel momento sacrilego e impio, de Viva la
religion:chanroblesvirtuallawlibrary Que la apreciar la Sala
sentenciadora los hechos referentes al Gobernador Civil de delito
de asesinato, penarlo con arreglo al Codigo y declarar inaplicable el
citado Decreto de Amnistia, no ha cometido el error de derecho
sealado en los casos 1. 3. del articulo 4. de la ley sobre
establecimiento de la casacion criminal, ni infringido los articulos
250 y 259 del Codigo Penal de 1870. (Page 239; chan
roblesvirtualawlibraryItalics supplied.) (See, also, El Codigo Penal,
by Hidalgo Garcia, Vol. I, p. 623.)
It is apparent that said case is not in point. There was no issue
therein on whether murder may be complexed with rebellion or
sedition. The question for determination was whether the killers of

the victim were guilty of the common crime of murder, or should

have been convicted only of rebellion or sedition. The court
adopted the first alternative, not because of the gravity of the acts
performed by the accused, but because they had no political
motivation.
Moreover,
the Endnote:chanroblesvirtuallawlibrary to said quotation from
Cuello Calon reads:chanroblesvirtuallawlibrary
Los atentados desacatos y lesiones a la autoridad u otros delitos
contra el orden publico cometidos en la sedicion o con motivo de
ella, no son delitos distintos de la sedicion, 3 octubre 1903, 19
noviembre 1906; chan roblesvirtualawlibraryla resistencia o
acometimiento a la fuerza publica por los sediciosos es accidente
de la rebelion, 23 mayo 1890.
El asesinato de un gobernador cometido en el curso de un tumulto
debe penarse como un delito comun de asesinato, 5 febrero 1872.
Sin embargo, la jurisprudencia, tratandose de ciertos delitos, es
vacilante; chan roblesvirtualawlibraryasi, v. g., el acometimiento al
teniente de alcalde se ha declarado en un fallo independiente de la
perturbacion tumultuaria promovida para impedir al alcalde el
cumplimiento de sus providencias, 16 marzo 1885, mientras que un
hecho analogo se ha considerado en otra sentenda ya citada como
accidente de la rebelion, 3 Octubre 1903. El acometimiento de los
sediciosos a la fuerza publica es accidente de la sedicion y no uno
de los delitos particulares a que se refiere este articulo, 23 de mayo
1890. Entre estos delitos a que alude el precepto se hallan las
lesiones que puedan causar los sediciosos, 19 noviembre 1906.
(Endnote:chanroblesvirtuallawlibrary 21,
II
Cuelo
Calon,
Derecho Penal, pp. 110-111.) (Italics supplied.)
Thus in a decision, dated May 2, 1934, the Supreme Court of Spain
held:chanroblesvirtuallawlibrary
Considerando que la nota deferencial entre los delitos de rebelion
y sedicion, de una parte, y el de atentado, esta constituida por la
circunstancia de alzamiento publico que caracteriza a los primeros,
los cuales, por su indole generica, absorben a los de atentado y
demas infracciones que durante su comision y con su motivo se
cometan, y afirmandose como hecho en la sentencia recurrida que
el procesado Mariano Esteban Martinez realizo, en union de otros,
el atendado que se le imputa sin alzarse publicamente, cae por su
base el recurso fundado en supuesto distinto. (Jurisprudencia
Criminal, Tomo 130, p. 551.) (Italics supplied.)
To
the
same
effect
following:chanroblesvirtuallawlibrary

are,

likewise,

the

La provocacion y el ataque a la Guardia Civil por paisanos alzadoz

tumultuariamente para impedir al Delegado de un Gobernador civil
el cumplimiento de sus providencias, no pueden estimarse
constitutivos de un delito distinto del de sedicion, ni ser, por tanto,
perseguidos y penados separadamente.
La resistencia o el acometimiento de los sublevados a la fuerza
publica constituye, en su caso, una circunstancia o accidente de la
sedicion y no es delito de los que el Codigo Penal en este articulo
(formerly Article 244, now Article 227) supone que pueden
cometerse en ella o con su motivo, los cuales denomina delitos
particulares, y manda que se penen conforme a las disposiciones
del propio Codigo. (S. 23-5-890; chan roblesvirtualawlibraryG. 23-6890; chan
roblesvirtualawlibraryt.
44; chan
roblesvirtualawlibrarypagina 671) (II Doctrina Penal del Tribunal
Supremo, p. 2411.) (Italics supplied.)
La Audiencia condeno como autores de atentado a dos de los
amotinados que agredieron al alcalde, e interpuesto recurso de
casacion contra la sentencia, el Tribunal Supremo la casa y anula,
teniendo en cuenta lo dispuesto en el articulo 250 (numero 3.) del
Codigo Penal;
Considerando que el acto llevado a cabo por el grupo constituye
una verdadera sedicion, sin que sea licito el dividir este hecho y
calificarlo de atentado respecto a las personas que agredieron a
dicho alcalde, porque el acometimiento fue un accidente de la
sedicion, de la cual eran todos responsables, ya se efectuara por
los agrupados en conjunto o por uno solo, por ser comun el objeto
que se proponian y no individual; chan roblesvirtualawlibraryy al
calificar y penar este hecho la Audencia de Gerona, de
atentado cralaw, ha incurrido en error de derecho e infringido los
articulos 250 y siguientes del Codigo Penal, por no haberlos
aplicado, y el 263, numero 2., en relacion con el 264, numeros 1.
y 3., por su aplicacion cralaw (Sent. 3 octubre 1903. Gac. 12
Diciembre) (Enciclopedia Juridica Espaola, Tomo xxviii p. 250).
These cases are in accord with the text of said Article 244, which
refers, not to all offenses committed in the course of a rebellion or
on the occasion thereof, but only to delitos particulares or
common crimes. Now, what are delitos particulares as the phrase
is
used
in
said
article
244?
We
quote
from
Viada:chanroblesvirtuallawlibrary
Las disposicion del primer parrafo de este articulo no puede ser
mas justa; chan roblesvirtualawlibrarycon arreglo a ella, los delitos
particulares o comunes cometidos en una rebelion er sedicion no
deberan reputarse como accidentes inherentes a estas, sino como

delitos especiales, a dicha rebelion y sedicion ajenos, los que

deberan ser respectivamente castigados con las penas que en este
Codigo se las sealan. Pero, que delitos deberan considerarse como
comunes, y cuales como constitutivos de la propia rebelion o
sedicion? En cuanto a la rebelion, no ofrece esta cuestion dificultad
alguna, pues todo hecho que no este comprendido en uno y otro de
los objetos especificados en los seis numeros del articulo 243 sera
extrao a la rebelion, y si se hallare definido en algun otro articulo
del Codigo, con arreglo a este debera ser castigado como delito
particular. Pero tratandose de la sedicion, comprendiendose como
objetos de la misma, en los numeros 3., 4. y 5. del articulo 250,
hechos que constituyen otros tantos ataques a las personas o a la
propiedad, cuales se consideran como accidentes inherentes a la
propria sedicion, y cuales deberan reputarse como delitos
particulares o comunes? En cuanto a los casos de los numeros 4. y
5., estimanos que el objeto politico y social que se requiera para la
realizacion de los actos en aquellos comprendidos es el que debe
servirnos de norma y guia para distinguir lo inherente a la sedicion
de lo que es ajeno o extrao a ella. Cuando no exista ese objeto
politico y social, el acto de odio o venganza ejercido contra los
particulares o cualquiera clase del Estado, y el atentado contra las
propiedades de los ciudadanos o corporaciones mentados en el
numero 5. del articulo 250, no seran constitutivos del delito de
sedicion, sino que deberan ser apreciados y castigados como
delitos comunes, segun las disposiciones respectivas de este
Codigo y por lo que toca a los actos de odio o venganza ejercidos
en la persona o bienes de alguna Autoridad o sus agentes,
estimamos que deberan reputarse como delitos comunes todos
aquellos hechos innecesarios 2 para la consecucion del fin
particular que se propusieran los sediciosos y como esenciales,
constitutivos de la propia sedicion todos aquellos actos de odio o
venganza que sean medio racionalmente necesario para el logro
del objeto especial a que se encaminaran los esfuerzos de los
sublevados. Asi, en el caso de la Cuestion 1 expuesta en el
comentario del articulo 258, es evidente que el fin que se
propusieron los sediciosos fue no pagar el impuesto a cuya
cobranza
iba
a
proceder
el
comisionado; chan
roblesvirtualawlibrarypero para lograr este objeto, como lo
lograron, fue preciso hacer salir del pueblo al ejecutor, y a este
efecto, lo amenazaron, lo persiguieron y llegaron hasta lesionarle.
Esas amenazas y lesiones no pudieron apreciarse, ni las aprecio
tampoco la Sala sentenciadora, como delito comun, sino como
accidente inherente a la misma sedicion, por cuanto fueron un
medio racionalmente necesario para la consecucion del fin
determinado que se propusieron los culpables.

Pero cuando tal necesidad desaparece, cuando se hiere por herir,

cuando se mata por matar, el hecho ya, no puede ser considerado
como un accidente propio de la sedicion, sino como un delito
especial, al que debe aplicarse la pena al mismo correspondiente.
(III Viada, pp. 311-312.) (Italics supplied.)
Cuello
Calon
is
even
says:chanroblesvirtuallawlibrary

more

illuminating.

He

La doctrina cientifica considera los delitos llamados politicos como

infracciones de un caracter especial distintas de los denominados
delitos comunes. De esta apreciacion ha nacido la division de los
delitos, desde el punto de vista de su naturaleza intrinseca, en
delitos politicos y delitos comunes o de derecho comun.
Se reputan delitos comunes aquellos que lesionan bienes juridicos
individuales (v. gr., los delitos contra la vida, contra la honestidad,
contra la propiedad, etc.)
La nocion del delito politico no parece tan clara. Desde luego
revisten este caracter los que atentan contra el orden politico del
Estado, contra su orden externo (independencia de la nacion,
integridad del territorio, etc.), o contra el interno (delitos contra el
Jefe del Estado, contra la forma de Gobierno, etc.). Pero tambien
pueden ser considerados como politicos todos los delitos,
cualesquiera que sean incluso los de derecho comun, cuando
fueron cometidos por moviles politicos. Deben, por tanto, estimarse
como infracciones de esta clase, no solo las que objetivamente
tengan tal caracter por el interes politico que lesionan, sino
tambien las que, apreciadas subjetivamente, manifiestan una
motivacion de caracter politico.
Asi
podria
formulares
esta
definicion:chanroblesvirtuallawlibrary es delito politico el cometido
contra el orden politico del Estado, asi como todo delito de
cualquiera otra clase determinado por moviles politicos. (Cuello
Calon, Derecho Penal, Tomo I, pp. 247-249.)
In short, political crimes are those directly aimed against the
political order, as well as such common crimes as may be
committed to achieve a political purpose. The decisive factor is the
intent or motive. If a crime usually regarded as common like
homicide, is perpetrated for the purpose of removing from the
allegiance to the Government the territory of the Philippines
Islands or any part thereof, then said offense becomes stripped of
its common complexion, inasmuch as, being part and parcel of
the crime of rebellion, the former acquires the political character of
the latter.

Conformably with the foregoing, the case of murder against

the Defendant in U. S. vs. Lardizabal (1 Phil., 729) an insurgent
who killed a prisoner of war because he was too weak to march
with the retreating rebel forces, and could not be left behind
without endangering the safety of the latter was dismissed upon
the ground that the execution of said prisoner of war formed part
of, and was included in, the crime of sedition, which, in turn, was
covered
by
an
amnesty,
to
the
benefits
of
which
said Defendant was entitled.
True, in U. S. vs. Alfont (1 Phil., 115), the commander of an
unorganized group of insurgents was, pursuant to Article 244 of our
old Penal Code, convicted of homicide for having shot and killed a
woman who was driving a vehicle. But the complex crime of
rebellion with homicide was not considered in that case. Apart from
this, the accused failed to established the relation between her
death and the insurrection. What is more, it was neither proved nor
alleged that he had been prompted by political reasons. In other
words, his offense was independent from the rebellion. The latter
was merely the occasion for the commission of the former.
It is noteworthy that the aforementioned decisions of this court and
the Supreme Court of Spain in cases of treason, rebellion and
sedition, are in line with the trend in other countries, as well as in
the field of international relations. Referring to the question as to
what offenses are political in nature, it was said in In re Ezeta (62
Fed. Rep., 972):chanroblesvirtuallawlibrary
What constitutes an offense of a political character has not yet
been determined by judicial authority. Sir James Stephens, in his
work, History of the Criminal Law of England (Volume 2, p. 71),
thinks that it should be interpreted to mean that fugitive criminals
are not to be surrendered for extradition crimes if those crimes
were incidental to and formed a part of political disturbances. Mr.
John Stuart Mill, in the house of commons, in 1866, while discussing
an amendment to the act of extradition, on which the treaty
between England and France was founded, gave this
definition:chanroblesvirtuallawlibrary Any offense committed in the
course of or furthering of civil war, insurrection, or political
commotion. Hansards Debates Vol. 184, p. 2115. In the Castioni
Case, supra, decided in 1891, the question was discussed by the
most eminent counsel at the English bar, and considered by
distinguished judges, without a definition being framed that would
draw a fixed and certain line between a municipal or common
crime and one of political character. I do not think, said Denman,
J., it is necessary or desirable that we should attempt to put into
language, in the shape of an exhaustive definition, exactly the

whole state of things, or every state of things, which might bring a

particular case within the description of an offense of a political
character. In that case, Castioni was charged with the murder of
one Rossi, by shooting him with a revolver, in the town of
Bellinzona, in the canton of Ticino, in Switzerland. The deceased,
Rossi, was a member of the state council of the canton of Ticino.
Castioni was a citizen of the same canton. For some time previous
to the murder, much dissatisfaction had been felt and expressed by
a large number of inhabitants of Ticino at the mode in which the
political party then in power were conducting the government of
the canton. A request was presented to the government for a
revision of the constitution of the canton and, the government
having declined to take a popular vote on that question, a number
of the citizens of Bellinzona, among whom was Castioni, seized the
arsenal of the town, from which they took rifles and ammunition,
disarmed the gendarmes, arrested and bound or handcuffed
several persons connected with the government, and forced them
to march in front of the armed crowd to the municipal palace.
Admission to the palace was demanded in the name of the people,
and was refused by Rossi and another member of the government,
who were in the palace. The crowd then broke open the outer gate
of the palace, and rushed in, pushing before them the government
officials whom they had arrested and bound. Castioni, who was
armed with a revolver, was among the first to enter. A second door,
which was locked, was broken open, and at this time, or
immediately after, Rossi, who was in the passage, was shot through
the body with a revolver, and died, very soon afterwards. Some
other shots were fired, but no one else was injured. Castioni fled to
England. His extradition was requested by the federal council of
Switzerland. He was arrested and taken before a police magistrate,
as provided by the statute, who held him for extradition.
Application was made by the accused to the high court of justice of
England for a writ of habeas corpus. He was represented by Sir
Charles Russell, now lord chief justice. The attorney general, Sir
Richard Webster, appeared for the crown, and the solicitor general,
Sir Edward Clarke, and Robert Woodfal, for the federal council of
Switzerland. This array of distinguished counsel, and the high
character of the court, commends the case as one of the highest
authority. It appeared from an admission by one of the parties
engaged in the disturbances that the death of Rossi was a
misfortune, and not necessary for the rising. The opinions of the
judges as to the political character of the crime charged against
Castioni, upon the facts stated, is exceedingly interesting, but I
need only refer to the following passages. Judge Denman
says:chanroblesvirtuallawlibrary

The question really is whether, upon the facts, it is clear that the
man was acting as one of a number of persons engaged in acts of
violence of a political character with a political object, and as part
of the political movement and rising in which he was taking part.
Judge Hawkins, in commenting upon the character of political
offenses, said:chanroblesvirtuallawlibrary
I cannot help thinking that everybody knows there are many acts
of a political character done without reason, done against all
reason; chan roblesvirtualawlibrarybut at the same time one cannot
look too hardly, and weigh in golden scales the acts of men hot in
their political excitement. We know that in heat, and in heated
blood, men often do things which are against and contrary to
reason; chan roblesvirtualawlibrarybut none the less an act of this
description may be done for the purpose of furthering and in
furtherance of a political rising, even though it is an act which may
be deplored and lamented, as even cruel and against all reason, by
those who can calmly reflect upon it after the battle is over.
Sir James Stephens, whose definition as an author has already
been cited, was one of the judges, and joined in the views taken as
to the political character of the crime charged against Castioni. The
prisoner was discharged. Applying, by analogy, the action of the
English court in that case to the four cases now before me, under
consideration, the conclusion follows that the crimes charged here,
associated as they are with the actual conflict of armed forces, are
of a political character.
The draft of a treaty on International Penal Law, adopted by the
congress of Montevideo in 1888, and recommended by the
International American Conference to the governments of the LatinAmerican nations in 1890, contains the following provisions (Article
23):chanroblesvirtuallawlibrary
Political offenses, offenses subversive of the internal and external
safety of a state or common offenses connected with these, shall
not warrant extradition. The determination of the character of the
offense is incumbent upon the nations upon which the demand for
extradition is made; chan roblesvirtualawlibraryand its decision
shall be made under and according to the provisions of the law
which
shall
prove
to
be
most
favorable
to
the
accused:chanroblesvirtuallawlibrary
I am not aware that any part of this Code has been made the basis
of treaty stipulations between any of the American nations, but the
article cited may be at least accepted as expressing the wisdom of
leading jurists and diplomats. The article is important with respect
to two of its features:chanroblesvirtuallawlibrary (1) provides that a

fugitive shall not be extradited for an offense connected with a

political offense, or with an offense subversive of the internal or
external safety of the state; chan roblesvirtualawlibraryand (2) the
decision as to the character of the offense shall be made under and
according to the provisions of the law which shall prove most
favorable to the accused. The first provision is sanctioned by Calvo,
who, speaking of the exemption from extradition of persons
charged with political offenses, says:chanroblesvirtuallawlibrary
The exemption even extends to acts connected with political
crimes or offenses, and it is enough, as says Mr. Fuastin Helio; chan
roblesvirtualawlibrarythat a common crime be connected with a
political act, that it be the outcome of or be in the outcome of or be
in the execution of such, to be covered by the privilege which
protects the latter Calvo, Droit Int. (3me ed.) p. 413, section 1262.
The second provision of the article is founded on the broad
principles of humanity found everywhere in the criminal law,
distinguishing its administration with respect to even the worst
features of our civilization from the cruelties of barbarism. When
this article was under discussion in the international American
conference in Washington, Mr. Silva, of Colombia, submitted some
observations upon the difficulty of drawing a line between an
offense of a political character and a common crime, and
incidentally referred to the crime of robbery, in terms worthy of
some consideration here. He said:chanroblesvirtuallawlibrary
In the revolutions, as we conduct them in our countries, the
common offenses are necessarily mixed up with the political in
many cases. A colleague General Caamao (of Ecuador) knows how
we carry on wars. A revolutionist needs horses for moving, beef to
feed his troops, etc.; chan roblesvirtualawlibraryand since he does
not go into the public markets to purchase these horses and that
beef, nor the arms and saddles to mount and equip his forces, he
takes them from the first pasture or shop he find at hand. This is
called robbery everywhere, and is a common offense in time of
peace, but in time of war it is a circumstance closely allied to the
manner of waging it. International American Conference, Vol. 2, p.
615. (Italics supplied.)
We
quote
the
following
from Endnote:chanroblesvirtuallawlibrary (23) on pages 249250, Vol. I, of Cuello Calons aforesaid work on Derecho Penal.
En algunos Codigo y leyes de fecha proxima ya se halla una
definicion de estos delitos. El Codigo penal ruso, en el articulo 58,
define como delitos contra revolucionarios los hechos
encaminados a derrocar o debilitar el poder de los Consejos de

trabajadores y campesinos y de los gobiernos de la Union de

Republicas socialistas sovieticas, a destruir o debilitar la seguridad
exterior de la Union de Republicas Sovieticas y las conquistas
economicas, politicas y nacionales fundamentales de la revolucion
proletaria. El Codigo Penal italiano de 1930 considera en eu
articulo 8. como delito politico todo delito que ofenda un interes
politico del Estado o un derecho politico del ciudadano. Tambien se
reputa politico el delito comun deteminado, en todo o en parte por
motivos politicos. En la ley alemana de extradicion de 25 diciembre
1929 se definen asi:chanroblesvirtuallawlibrary Son delitos
politicos los atentados punibles directamente ejecutados contra la
existencia o la seguridad del Estado, contra el jefe o contra un
miembro del gobierno del Estado como tal, contra una corporacion
constitucional, contra los derechos politicos las buenas relaciones
con el extranjero. parrafo 3., 2.
La 6a. Conferencia para la Unificacion del Derecho penal
(Copenhague, 31 agosto 3 septiembre 1935) adopto la siguiente
nocion del delito politico:chanroblesvirtuallawlibrary
1. Por delitos politicos se entienden los dirigidos contra la
organizacion y funcionamiento del Estado o contra los derechos
que de esta organizacion y funcionamiento provienen para el
culpable.
2. Tambien se consideran como delitos politicos los delitos de
derecho comun que constituyen hechos conexos con la ejecucion
de
los
delitos
previstos
en
seccion
1.:chanroblesvirtuallawlibrary como los hechos dirigidos a
favorecer la ejecucion de un delito politico o a permitir al autor de
este delito sustraerse a la aplicacion de la ley penal.
3. No se consideraran delitos politicos aquellos a los que su autor
sea inducido por un motivo egoista y vil.
4. No se consideraran delitos los que creen un peligro para la
comunidad o un estado de terror. (Italics supplied.)
Thus, national, as well as international, laws and jurisprudence
overwhelmingly favor the proposition that common crimes,
perpetrated in furtherance of a political offense, are divested of
their character as common offenses and assume the political
complexion of the main crime of which they are mere ingredients,
and, consequently, cannot be punished separately from the
principal offense, or complexed with the same, to justify the
imposition of a graver penalty.
There is one other reason and a fundamental one at that why
Article 48 of our Penal Code cannot be applied in the case at bar. If

murder were not complexed with rebellion, and the two crimes
were punished separately (assuming that this could be done), the
following penalties would be imposable upon the movant,
namely:chanroblesvirtuallawlibrary (1) for the crime of rebellion, a
fine not exceeding P20,000 and prision mayor, in the corresponding
period, depending upon the modifying circumstances present, but
never
exceeding
12
years
of
prision
mayor; chan
roblesvirtualawlibraryand (2) for the crime of murder, reclusion
temporal in its maximum period to death, depending upon the
modifying circumstances present. In other words, in the absence of
aggravating circumstances, the extreme penalty could not be
imposed upon him. However, under Article 48, said penalty would
have to be meted out to him, even in the absence of a single
aggravating circumstance. Thus, said provision, if construed in
conformity with the theory of the prosecution, would be
unfavorable to the movant.
Upon the other hand, said Article 48 was enacted for the purpose of
favoring the culprit, not of sentencing him to a penalty more severe
than that which would be proper if the several acts performed by
him were punished separately. In the word of Rodriguez
Navarro:chanroblesvirtuallawlibrary
La unificacion de penas en los casos de concurso de delitos a que
hace referencia este articulo (75 del Codigo de 1932), esta basado
francamente en el principio pro reo. (II Doctrina Penal del Tribunal
Supremo de Espaa, p. 2168.) 3
We are aware of the fact that this observation refers to Article 71
(later 75) of the Spanish Penal Code (the counterpart of our Article
48),
as
amended
in
1908
and
then
in
1932,
reading:chanroblesvirtuallawlibrary
Las disposiciones del articulo anterior no son aplicables en el caso
de que un solo hecho constituya dos o mas delitos, o cuando el uno
de ellos sea medio necesario para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito
mas grave en su grado maximo, hasta el limite que represente la
suma de las que pudieran imponerse, penando separadamente los
delitos.
Cuando la pena asi computada exceda de este limite, se
sancionaran los delitos por separado. (Rodriguez Navarro, Doctrino
Penal del Tribunal Supremo, Vol. II, p. 2163.)
and that our Article 48 does not contain the qualification inserted in
said amendment, restricting the imposition of the penalty for the
graver offense in its maximum period to the case when it does not

exceed the sum total of the penalties imposable if the acts charged
were dealt with separately. The absence of said limitation in our
Penal Code does not, to our mind, affect substantially the spirit of
said Article 48. Indeed, if one act constitutes two or more offenses,
there can be no reason to inflict a punishment graver than that
prescribed for each one of said offenses put together. In directing
that the penalty for the graver offense be, in such case, imposed in
its maximum period, Article 48 could have had no other purpose
than to prescribe a penalty lower than the aggregate of the
penalties for each offense, if imposed separately. The reason for
this benevolent spirit of Article 48 is readily discernible. When two
or more crimes are the result of a single act, the offender is
deemed less perverse than when he commits said crimes thru
separate and distinct acts. Instead of sentencing him for each
crime independently from the other, he must suffer the maximum
of the penalty for the more serious one, on the assumption that it is
less grave than the sum total of the separate penalties for each
offense.
Did the framers of Article 48 have a different purpose in dealing
therein with an offense which is a means necessary for the
commission of another? To begin with, the culprit cannot, then, be
considered as displaying a greater degree of malice than when the
two offenses are independent of each other. On the contrary, since
one offense is a necessary means for the commission of the other,
the evil intent is one, which, at least, quantitatively, is lesser than
when the two offenses are unrelated to each other, because, in
such event, he is twice guilty of having harbored criminal designs
and of carrying the same into execution. Furthermore, it must be
presumed that the object of Article 48, in its entirety, is only one.
We cannot assume that the purpose of the lawmaker, at the
beginning of the single sentence of which said article consists, was
to favor the accused, and that, before the sentence ended, the
former had a change of heart and turned about face against the
latter. If the second part of Article 48 had been meant to be
unfavorable to the accused and, hence, the exact opposite of the
first part each would have been placed in, separate provisions,
instead of in one single article. If the first part sought to impose,
upon the culprit, a penalty less grave than that which he would
deserve if the two or more offenses resulting from his single act
were punished separately, then this, also, must be the purpose of
the second part, in dealing with an offense which is a necessary
means for the commission of another.
The accuracy of this conclusion is borne out by the fact that, since
1850, when the counterpart of our Article 48 was inserted in the
Penal Code of Spain, or for over a century, it does not appear to

have been applied by the Supreme Court thereof to crimes of

murder committed in furtherance of an insurrection.
Incidentally, we cannot accept the explanation that crimes
committed as a means necessary for the success of a rebellion had
to be prosecuted separately under the provisions of Article 259 of
the Penal Code of Spain, which is the counterpart of Article 244 of
our old Penal Code. To begin with, these articles are part of a
substantive law. They do not govern the manner or method of
prosecution of the culprits. Then again, said precepts ordain that
common crimes committed during a rebellion or sedition, or on the
occasion thereof, shall be respectively punished according to the
provisions of this Code. Among such provisions was Article 90
(later Article 71, then Article 75) of the Spanish Penal Code, and
Article 89 of our old Penal Code, of which Article 48 of the Revised
Penal Code of the Philippines is a substantial reproduction. Hence,
had the Supreme Court of Spain or the Philippines believed that
murders committed as a means necessary to attain the aims of an
uprising were common crimes, the same would have been
complexed with the rebellion or sedition, as the case may be.
The cases of People vs. Cabrera (43 Phil., 64) and People vs.
Cabrera (43 Phil., 82) have not escaped our attention. Those cases
involved members of the constabulary who rose publicly, for the
purpose of performing acts of hate and vengeance upon the police
force of Manila, and in an encounter with the latter, killed some
members thereof. Charged with and convicted of sedition in the
first case, they were accused of murder in the second case. They
pleaded double jeopardy in the second case, upon the ground that
the facts alleged in the information were those set forth in the
charge in the first case, in which they had been convicted. This plea
was rejected upon the ground that the organic law prohibited
double jeopardy for the same offense, and that the offense of
sedition is distinct and different from that of murder, although both
were the result of the same act.
The question whether one offense was inherent in, or identified
with, the other was not discussed or even considered in said cases.
Besides, the lower court applied, in the murder case Article 89 of
the old Penal Code which is the counterpart of Article 48 of the
Revised Penal Code but this Court refused to do so. Again, simply
because one act may constitute two or more offenses, it does not
follow necessarily that a person may be prosecuted for one after
conviction for the other, without violating the injunction against
double jeopardy. For instance, if a man fires a shotgun at another,
who suffers thereby several injuries, one of which produced his
death, may he, after conviction for murder or homicide, based upon

said fatal injury, be accused or convicted, in a separate case, for

the non-fatal injuries sustained by the victim? Or may the former be
convicted of the complex crime of murder or homicide with serious
and/or less serious physical injuries? The mere formulation of these
questions suffices to show that the limitation of the rule on double
jeopardy to a subsequent prosecution for the same offense does
not constitute a license for the separate prosecution of two
offenses resulting from the same act, if one offense is an essential
element of the other. At any rate, as regards this phase of the
issue, which was not touched in the Cabrera cases, the rule therein
laid down must necessarily be considered modified by our decision
in the cases of People vs. Labra (46 Off. Gaz., Supp. No. 1, p. 159)
and Crisologo vs. People and Villalobos (supra), insofar as
inconsistent therewith.
The main argument in support of the theory seeking to complex
rebellion with murder and other offenses is that war within the
purview of the laws on rebellion and sedition may be waged or
levied without killing. This premise does not warrant, however,
the conclusion drawn therefrom that any killing done in
furtherance of a rebellion or sedition is independent therefrom, and
may be complexed therewith, upon the ground that destruction of
human life is not indispensable to the waging or levying of war. A
person may kill another without inflicting physical injuries upon the
latter, such, for instance, as by poisoning, drowning, suffocation or
shock. Yet it is admitted that he who fatally stabs another cannot
be convicted of homicide with physical injuries. So too, it is
undeniable that treason may be committed without torturing or
murdering anybody. Yet, it is well-settled that a citizen who gives
aid and comfort to the enemy by taking direct part in the
maltreatment and assassination of his (citizens) countrymen, in
furtherance of the wishes of said enemy, is guilty of plain treason,
not complexed with murder or physical injuries, the later being
as charged and proven mere ingredients of the former. Now
then, if homicide may be an ingredient of treason, why can it not be
an ingredient of rebellion? The proponents of the idea of rebellion
complexed with homicide,. etc., have not even tried to answer this
question. Neither have they assailed the wisdom of our
aforementioned decisions in treason cases.
The Court is conscious of the keen interest displayed, and the
considerable efforts exerted, by the Executive Department in the
apprehension and prosecution of those believed to be guilty of
crimes against public order, of the lives lost, and the time and
money spent in connection therewith, as well as of the possible
implications or repercussions in the security of the State. The
careful consideration given to said policy of a coordinate and co-

equal branch of the Government is reflected in the time consumed,

the extensive and intensive research work undertaken, and the
many meetings held by the members of the court for the purpose
of elucidating on the question under discussion and of settling the
same.
The role of the judicial department under the Constitution is,
however, clear to settle justiceable controversies by the
application of the law. And the latter must be enforced as it is
with all its flaws and defects, not affecting its validity not as the
judges would have it. In other words, the courts must apply the
policy of the State as set forth in its laws, regardless of the wisdom
thereof.
It is evident to us that the policy of our statutes on rebellion is to
consider all acts committed in furtherance thereof as specified in
Articles
134
and
135
of
the
Revised:chanroblesvirtuallawlibrary Penal Code as constituting
only one crime, punishable with one single penalty namely, that
prescribed in said Article 135. It is interesting to note, in this
connection, that the penalties provided in our old Penal Code
(Articles
230
to
232)
were
much
stiffer,
namely:chanroblesvirtuallawlibrary
1. Life imprisonment to death for the promoters, maintainers
and leaders of the rebellion, and, also, for subordinate officers who
held positions of authority, either civil or ecclesiastical, if the
purpose of the movement was to proclaim the independence of any
portion of the Philippine territory;
2. Reclusion temporal in its maximum period for said promoters,
maintainers and leaders of the insurrection, and for its subordinate
officers, if the purpose of the rebellion was any of those
enumerated in Article 229, except that mentioned in the preceding
paragraph;
3. Reclusion
temporal:chanroblesvirtuallawlibrary (a)
for
subordinate officers other than those already adverted to; chan
roblesvirtualawlibraryand (b) for mere participants in the rebellion
falling under the first paragraph of No. 2 of Article 174; chan
roblesvirtualawlibraryand
4. Prision mayor in its medium period to reclusion temporal in its
minimum period for participants not falling under No. 3.
After the cession of the Philippines to the United States, the rigors
of the old Penal Code were tempered. Its aforementioned provisions
were superseded by section 3 of Act No. 292, which reduced the
penalty to imprisonment for not more than ten (10) years and a

fine not exceeding $10,000, or P20,000, for every person who

incites, sets on foot, assists or engages in any rebellion or
insurrection cralaw or who gives aid and comfort to any one so
engaging in such rebellion or insurrection. Such liberal attitude
was adhered to by the authors of the Revised Penal Code. The
penalties therein are substantially identical to those prescribed in
Act 292. Although the Revised Penal Code increased slightly the
penalty of imprisonment for the promoters, maintainers and
leaders of the uprising, as well as for public officers joining the
same, to a maximum not exceeding twelve (12) years of prision
mayor, it reduced the penalty of imprisonment for mere
participants to not more than eight (8) years of prision mayor, and
eliminated the fine.
This benign mood of the Revised Penal Code becomes more
significant when we bear in mind it was approved on December 8,
1930 and became effective on January 1, 1932. At that time the
communists in the Philippines had already given ample proof of
their widespread activities and of their designs and potentialities.
Prior thereto, they had been under surveillance by the agents of the
law, who gathered evidence of their subversive movements,
culminating in the prosecution of Evangelista, Manahan (57 Phil.,
354; chan roblesvirtualawlibrary57 Phil., 372), Capadocia (57 Phil.,
364), Feleo (57 Phil., 451), Nabong (57 Phil., 455), and others. In
fact, the first information against the first two alleged that they
committed the crime of inciting to sedition on and during the
month of November, 1930, and for sometime prior and subsequent
thereto.
As if this were not enough, the very Constitution adopted in 1935,
incorporated a formal and solemn declaration (Article II, section 5)
committing the Commonwealth, and, then the Republic of the
Philippines, to the promotion of social justice. Soon later,
Commonwealth Act No. 103, creating the Court of Industrial
Relations, was passed. Then followed a number of other statutes
implementing said constitutional mandate. It is not necessary to go
into the details of said legislative enactments. Suffice it to say that
the same are predicated upon a recognition of the fact that a good
many of the problems confronting the State are due to social and
economic evils, and that, unless the latter are removed or, least
minimized, the former will keep on harassing the community and
affecting the well-being of its members.
Thus, the settled policy of our laws on rebellion, since the
beginning of the century, has been one of decided leniency, in
comparison with the laws enforce during the Spanish regime. Such
policy has not suffered the slightest alteration. Although the

Government has, for the past five or six years, adopted a more
vigorous course of action in the apprehension of violators of said
law and in their prosecution the established policy of the State, as
regards the punishment of the culprits has remained unchanged
since 1932. It is not for us to consider the merits and demerits of
such policy. This falls within the province of the policy-making
branch of the government the Congress of the Philippines.
However, the following quotation from Cuello Calon indicates the
schools of thought on this subject and the reason that may have
influenced
our
lawmakers
in
making
their
choice:chanroblesvirtuallawlibrary
Durante muchos siglos, hasta tiempos relativamente cercanos, se
reputaban los hechos que hoy llamamos delitos politicos como mas
graves y peligrosos que los crimenes comunes. Se consideraba que
mientras estos solo causan un dao individual, aquellos producen
profundas perturbaciones en la vida collectiva llegando a poner en
peligro la misma vida del Estado. En consonancia con estas ideas
fueron reprimidos con extraordinaria severidad y designados con la
denominacion romana de delitos de lesa majestad se catalogaron
en las leyes penales como los crimenes mas temibles.
Pero desde hace poco mas de un siglo se ha realizado en este
punto una transformacion profunda merced a la cual la
delincuencia politica dejo de apreciarse con los severos criterios de
antao quedando sometida a un regimen penal, por regla general
suave y benevolo.
El origen de este cambio se remonta, segun opinion muy
difundida, a la revolucion que tuvo lugar en Francia en el ao 1830.
El gobierno de Luis Felipe establecio una honda separacion entre
los delitos comunes y los politicos, siendo estos sometidos a una
penalidad mas suave y sus autores exceptuados de la extradicion.
Irradiando a otros paises tuvieron estas tan gran difusion que en
casi todos los de regimen liberal-individualista se ha llegado a crear
un tratamiento desprovisto de severidad para la represion de estos
hechos. No solo las penas con que se conminaron perdieron gran
parte de su antigua dureza, sino qua en algunos paises se creo un
regimen penal mas suave para estos delicuentes, en otros se abolio
para ellos la pena de muerte. Tan profundo contraste entre el
antiguo y el actual tratamiento de la criminalidad politica en la
mayoria de los paises solo puede ser explicado por las ideas
nacidas y difundidas bajo los regimenes politicos liberalesacerca de
estos delitos y delincuentes. Por una parte se ha afirmado que la
criminalidad da estos hechos no contiene la misma inmoralidad que
la delincuencia comun, que es tan solo relativa, qua depende del
tiempo, del lugar, da las circumstancias, de las instituciones del

pais. Otros invocan la elevacion de los moviles y sentimientos

determinantes de estos hechos, el amor a la patria, la adhesion
ferviente a determinadas ideas o principios, el espiritu de sacrificio
por el triunfo de un ideal.
Contra su trato benevolo, del que no pocas veces se han
beneficiado peligrosos malhechores, se ha iniciado hace algun
tiempo una fuerte reaccion (vease Cap. XV, 3., b), que llego a
alcanzar considerable severidad en las legislaciones de tipo
autoritario, y que tambien ha hallado eco, en forma mas suave, en
las de otros paises de constitucion democratica en los que,
especialmente en los ultimos aos, la frecuencia de agitaciones
politicas y sociales ha originado la publicacion de numerosas leyes
encaminadas a la proteccion penal del Estado. (Cuello Calon,
Derecho Penal, Tomo 1, pp. 250-252.)
Such evils as may result from the failure of the policy of the law
punishing the offense to dovetail with the policy of the law
enforcing agencies in the apprehension and prosecution of the
offenders are matters which may be brought to the attention of the
departments concerned. The judicial branch cannot amend the
former in order to suit the latter. The Court cannot indulge in
judicial legislation without violating the principle of separation of
powers, and, hence, undermining the foundation of our republican
system. In, short, we cannot accept the theory of the prosecution
without causing much bigger harm than that which would allegedly
result from the adoption of the opposite view.
In conclusion, we hold that, under the allegations of the amended
information againstDefendant-Appellant Amado V. Hernandez, the
murders, arsons and robberies described therein are mere
ingredients of the crime of rebellion allegedly committed by
saidDefendants, as means necessary 4 for the perpetration of
said offense of rebellion; chan roblesvirtualawlibrarythat the crime
charged in the aforementioned amended information is, therefore,
simple rebellion, not the complex crime of rebellion with multiple
murder, arsons and robberies; chan roblesvirtualawlibrarythat the
maximum penalty imposable under such charge cannot exceed
twelve (12) years of prision mayor and a fine of P20,000; chan
roblesvirtualawlibraryand that, in conformity with the policy of this
court in dealing with accused persons amenable to a similar
punishment, said Defendant may be allowed bail.
It is urged that, in the exercise of its discretion, the Court should
deny the motion under consideration, because the security of the
State so requires, and because the judgment of conviction
appealed from indicates that the evidence of guilt of Amado V.
Hernandez is strong. However, as held in a resolution of this court,

dated January 29, 1953, in the case of Montano vs. Ocampo (G.R. L6352):chanroblesvirtuallawlibrary
cralaw to deny bail it is not enough that the evidence of guilt is
strong; chan roblesvirtualawlibraryit must also appear that in case
of conviction the Defendants criminal liability would probably call
for a capital punishment. No clear or conclusive showing before this
Court has been made.
In fact, in the case at bar, Defendant Amado V. Hernandez was
sentenced by the lower court, not to the extreme penalty, but to
life imprisonment. Furthermore, individual freedom is too basic, too
transcendental and vital in a republican state, like ours, to be
denied upon mere general principles and abstract consideration of
public safety. Indeed, the preservation of liberty is such a major
preoccupation of our political system that, not satisfied with
guaranteeing its enjoyment in the very first paragraph of section
(1) of the Bill of Rights, the framers of our Constitution devoted
paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16),
(17), (18), and (21) of said section (1) to the protection of several
aspects of freedom. Thus, in line with the letter and spirit of the
fundamental law, we said in the aforementioned case of Montano
vs. Ocampo:chanroblesvirtuallawlibrary
Exclusion from bail in capital offenses being an exception to the
otherwise absolute right guaranteed by the constitution, the
natural tendency of the courts has been toward a fair and liberal
appreciation, rather than otherwise, of the evidence in the
determination of the degree of proof and presumption of guilt
necessary to warrant a deprivation of that right.
xxx

xxx

xxx

In the evaluation of the evidence the probability of flight is one

other important factor to be taken into account. The sole purpose
of confining accused in jail before conviction, it has been observed,
is to secure his presence at the trial. In other words, if denial of bail
is authorized in capital cases, it is only on the theory that the proof
being strong, the Defendantwould flee, if he has the opportunity,
rather than face the verdict of the jury. Hence, the exception to the
fundamental right to be bailed should be applied in direct ratio to
the extent of the probability of evasion of prosecution.
The possibility of escape in this case, bearing in mind
the Defendants official and social standing and his other personal
circumstances, seem remote if not nil.
This view applies fully to Amado V. Hernandez, with the particularity
that there is an additional circumstance in his favor he has been

detained since January 1951, or for more than five (5) years, and it
may still take some time to dispose of the case, for the same has
not been, and is not in a position to be, included, as yet, in our
calendar, inasmuch as the briefs for some Appellants other than
Hernandez as well as the brief for the Government, are pending
submission. It should be noted, also, that the decision appealed
from the opposition to the motion in question do not reveal
satisfactorily and concrete, positive act of the accused showing,
sufficiently, that his provincial release, during the pendency of the
appeal, would jeopardize the security of the State.
Wherefore,
the
aforementioned
motion
for
bail
of Defendant- Appellant Amado V. Hernandez is hereby granted
and, upon the filing of a bond, with sufficient sureties, in the sum of
P30,000, and its approval by the court, let said DefendantAppellant be provisionally released. It is SO ORDERED.

DECISION
GONZAGA-REYES, J.:
Many unfortunate tragedies would not have happened if the
improvident use of a firearm did not exacerbate a simple
altercation over traffic. This is one of them.
On a day intended to pay homage to the dead, a pregnant woman
was shot to death in the course of her husbands altercation with
the accused-appellant and his son along the Garden of
Remembrance within the Loyola Memorial Park in Marikina. The trial
court found the accused guilty of the complex crime of murder and
two counts of frustrated murder and accordingly sentenced him to
death. This case is before us on automatic review.
The details of what actually transpired in the few seconds
immediately preceding the shooting are controverted by both
parties but the events leading to this tragedy are not disputed.
In the afternoon of October 31, 1998 at about 2:30 p.m. both the
families of the private complainant Noel Andres and that of the
accused-appellant Inocencio Gonzalez were on their way to the exit
of the Loyola Memorial Park. The appellant was driving a white
Isuzu Esteem with his grandson and three housemaids, while the
private complainant was driving a maroon Toyota FX with his
pregnant wife Feliber Andres, his two year old son, Kenneth, his
nephew Kevin and his sister-in-law, Francar Valdez. At the
intersection near the Garden of Remembrance, while the accusedappellant Gonzalez was turning left towards the exit and the
complainant Noel Andres was headed straight along the road to the
exit their two vehicles almost collided. Noel Andres was able to
timely step on the brakes. The appellant continued driving along
his way while Noel Andres drove behind the appellants vehicle for
some time and cut him off when he found the opportunity to do
so. [1 Noel Andres then got out of his vehicle and knocked on the
appellants car window. [2 This is as far as their versions of the
incident coincide.

G.R. No. 139542. June 21, 2001

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs. INOCENCIO GONZALEZ, JR., Accused-Appellant.

The prosecutions version of the incident is that Noel Andres calmly

told the appellant to be careful with his driving and informed the
latter that he, Andres, is with his family and to this Gonzalez
allegedly replied, Accidents are accidents, whats your problem.
Andres stated that he saw the appellant turning red in anger so he
decided to go back to his vehicle when he was blocked by the

appellants son who said, Anong problema mo sa erpat ko. Andres

testified that he felt threatened and so he immediately boarded his
vehicle, sat at the drivers seat, closed the door, and partially
opened the car window just wide enough to talk back to appellants
son, Dino. Suddenly, one of his passengers said Binaril kami. He
turned to his wife Feliber Andres and saw her bloodied and
unconscious. He turned around and saw his son Kenneth and
nephew Kevin were also wounded. Andres admitted in court that he
and Dino were shouting at each other so that he did not hear the
shot. Andres then got out of his vehicle to warn the appellant not to
flee. He then took the wounded members of his family to the exit
where there was an ambulance standing by. The three were then
taken to the Sta. Monica Hospital and were later transferred to the
Quezon City Medical Center.
The defenses version of the incident is that Andres cut the
appellants path by positioning his FX obliquely along the appellants
lane from the latters left side. Andres then got out of his vehicle,
stood beside the appellants car window, and repeatedly cursed the
appellant, Putang ina mo, ang tanda-tanda mo na hindi ka pa
marunong magmaneho. Ang bobo-bobo mo. [3 The appellant
stayed inside his car and allegedly replied, Pasensiya ka na hindi
kita nakita, nasilaw ako. Aksidente lang. The appellant Gonzalez
and another witness for the defense, Quidic, testified that Noel
Andres went back to his vehicle to move it in such a way that it is
straight in front of the appellants car. Andres allegedly got out of
his vehicle again and continued shouting and cursing at the
appellant. [4 Dino, the appellants son, who rode in another vehicle
decided to go back when he did not see his fathers car behind him.
When Dino arrived at the scene he confronted Andres and the two
had an altercation. Both Dino and the appellant stated that Andres
remained outside his vehicle during the altercation with Dino. When
Andres suddenly reached for something inside his vehicle, Dino
froze on the spot where he stood. This prompted the appellant to
get his gun from the glove compartment and feeling that his son
was threatened he got out of his car ready to shoot. When he saw
that Andres did not have a weapon he put down his hand holding
the gun. This is when the appellants daughter Trisha who was riding
in Dinos car arrived at the scene, walked past Dino and Andres, and
pushed the appellant away. She hugged her father and in the
process held his hand holding the gun. The appellant tried to free
his hand and with Trishas substantial body weight pushing against
him the appellant lost his balance and the gun accidentally fired.
The accused stated that he did not know he shot somebody until
the private complainants sister-in-law, Francar Valdez, got out of
the vehicle carrying a bloodied small boy. The defense claims that

the appellant did not try to flee and even told the complainants
sister-in-law to take the wounded to the hospital.
On November 4, 1998 an Information for the complex crime of
Murder, Double Frustrated Murder and Attempted Murder was filed
against herein accused-appellant:
That on or about the 31st day of October 1998, in the city of
Marikina, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully,
unlawfully and feloniously with intent to kill, attack, assault and
employ personal violence by means of treachery and abuse of
superior strength upon the person of Noel Andres y Tomas, by then
and there shooting him with a Glock cal. 9mm pistol but instead
hitting one Feliber Andres y Ordoo, on the left back portion of her
head, thereby inflicting upon her serious and mortal wound which
directly caused her death, as well as hitting John Kenneth Andres y
Ordoo and Kevin Valdez y Ordoo physical injuries which ordinarily
would have caused their death, thus performing all the acts of
execution which would have produced the crime of murder as a
consequence, but nevertheless did not produce it by reason of
some cause or causes, independent of their will, that is, the timely
and able medical assistance rendered to John Kenneth Andres y
Ordoo and Kevin Valdez y Ordoo to their damage and prejudice as
well as to the damage and prejudice of the heirs of Feliber Andres y
Ordoo.
On arraignment the accused-appellant pleaded not guilty to the
crimes charged.
The case records show that Feliber Andres, the wife of Noel Andres
did not die instantaneously. She lived to give birth to a baby
girl [5 by caesarian section and died the following morning on
November 1, 1998. The Autopsy Report[6 states:
FINDINGS: Fairly nourished, fairly developed female cadaver, with
post mortem lividity. Conjunctivae are pale. Lips and nail beds are
cyanotic. Surgical incisions were noted at left tempero-parietal
region. Surgical incisions is also noted at the abdominal region
secondary to a caesarian section.
HEAD: (1) gunshot wound, point of entry, left fronto-temporal
region, measuring 1 by 0.9 cm, 9 cm from the anterior midline, with
a uniform abraided collar measuring 0.2 cm., directed
posteriorwards, slightly downwards, and medialwards, fracturing

the frontal, and left temporal bones, lacerating the left cerebral
hemisphere, with a deformed slug fragment embedded and
recovered at the posterior lobe of the left cerebral hemisphere. (2)
hematoma, left orbital region, measuring 4.5 by 2 cm, 4 cm from
the anterior midline. There are subdural and subarachnoidal
hemorrages. Stomach contains 1 glassful of partially digested food
particles mostly rice and meaty material.
CONCLUSION: Cause of death is gunshot wound on the head.
Kenneth and Kevin were treated for extraction of metallic
fragments on their faces. They were discharged from the hospital
six days later or on November 6, 1998.
On June 25, 1999 the trial court rendered judgement finding that
the shooting was attended by the qualifying circumstance of
treachery and held the appellant guilty of the complex crime of
murder for the death of Feliber Andres and for two counts of
frustrated murder for the injuries sustained by Kenneth Andres and
Kevin Valdez and sentenced the appellant to the maximum of the
imposable penalty which is death. The trial court held:
Beforehand, the Court takes note of the judicial admissions on the
verbal declarations of the accused that the court a quo has
jurisdiction over the case; that he owns the black Gluck 9 mm.
automatic pistol; that the said gun will never fire even if he drops it;
that only one bullet was fired from his gun; and that the victim
Feliber Andres is already dead. With this exegesis and the
declarations in open court of the eyewitness of both the
prosecution and some of the defense, there is no real dispute on
the antecedent facts showing that the accused fired on Noel Andres
but instead hit and caused the fatal injuries to the victims John
Kenneth Andres, Kevin Valdez and Feliber Andres resulting to the
ultimate death of the latter. The court takes further judicial
admissions of the accused made in their memorandum
demonstrating the existence of five (5) sequences of events
leading to the death of Feliber Andres and the wounding of John
Kenneth Andres and Kevin Valdez which are as follows: First is when
Noel Andres overtook the car driven of the accused and cut cross
his path; Second is when Noel Andres alighted from his vehicle and
confronted Inocencio; Third is when Noel had an argument with
Dino Gonzalez, the son of the accused; Forth is when, Inocencio
seeing his son having confrontation with Noel, got his gun to
protect Dino; and Fifth is when Inocencio had a struggle with his
daughter. Trisha Gonzalez, who tried to reach for the gun and as a

result of which Inocencio lost his balance and as he was falling

backward to his side, his right arm holding the gun hit the rear
window of the Tamaraw FX van and the gun accidentally went off
hitting the victim, who were all then inside the van.
The court likewise take judicial notice on the feature of the
automatic pistol used in this case which is capable of
unquestionable demonstration or ought to be known to judges
because of their judicial functions. Practically, the stages before an
automatic firearm would be capable of firing are as follows: 1) the
loading of a bullet into the chamber of the gun; 2) the cocking of
the hammer, if uncocked; 3) the releasing of the safety pin; 4) the
pressing of the trigger to unleash the hammer so that the firing pin
will hit the cartridge to propel the bullet out to hit the target.
Realistically, it demonstrates that a gun will not fire even if the
bullet is loaded in its chamber if the hammer is uncocked; or even if
cocked if the safety pin is engaged; or even if the safety pin is
disengaged if the trigger will not be pressed. However, even if the
gun is fired if it is not aimed and leveled to the target, the purpose
of firing it shall not be achieved. Contrarily, once a gun is drawn
against a person, the means methods and forms employed for its
execution is already conceived. And once it is tended directly and
specifically to insure its execution, it consequently produces the
conscious and deliberate intention. Finally if all the acts of
execution had been effectively done without risk on the part of the
offender arising from any defense coming from the offended party,
treachery results. In brief, there is treachery when the offender
commits any crime against persons, employing means, methods
and forms in the execution thereof which tend directly and specially
to insure its execution, without risk to himself arising from any
defense which the offended party might make (People vs. Mesa 276
SCRA 407; People vs. Carlos Patrolla, Jr. G. R. No. 112445, March 7,
1996). To appreciate treachery two (2) conditions must be present,
to wit: 1) the employment of means of execution that give the
person attacked no opportunity to defend himself or retaliate; and
2) the means of execution were deliberately or consciously
adopted. (People vs. Azugue, 268 SCRA 711; People vs. Pea, G. R.
No. 116022, July 1, 1998, p. 1)
In the case at bar and guided with the above-quoted doctrinal
cases, logically, the accused is positive of the crime charged
against him. When he alighted with a drawn gun to protect his son
and released all the safety measures of his gun as he fired and
missed at Noel who was then unarmed, but instead hit Kevin
Valdez, John Kenneth Andres and Feliber Andres which resulted to

the death of the latter, demonstrate that the accused has executed
the two (2) conditions to generate treachery enough to qualify the
crime committed to murder.

2. To the private complainant Nicasio Valdez:

a) the amount of P73,824.75 as actual damages for the injuries
sustained by the victim Kevin Valdez; and

XXXX XXXXX XXXX

WHEREFORE, foregoing premises considered, the accused
Inocencio Gonzalez, Jr., y Esquivel is hereby found guilty beyond
reasonable doubt of the complex crime of Murder with Double
Frustrated Murder and Attempted Murder penalized under Art. 248,
as amended by Republic Act No. 7659 in relation to Article 48 of the
Revised Penal Code and is sentenced to suffer the maximum
penalty of Death by lethal injection.
The accused is further ordered to pay the following civil liabilities:
1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the death of Feliber
Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning
capacity of the deceased Feliber Andres;
c) the amount of P98,384.19 as funeral expenses;
d) the amount of P271,800.56 for the hospitalization expenses
incurred for the injuries sustained by the deceased Feliber Andres
and the amount of P23,622.58 representing the expenses for the
untimely delivery of the child Ma. Clarisse Andres;
e) the amount of P51,566.00 representing the hospitalization
expenses for the injuries sustained by the victim John Kenneth
Andres;
f) the amount of P150,000.00 as moral damages suffered for the
untimely death of his wife Feliber Andres and for the injuries caused
to his son John Kenneth Andres;
g) the amount of P50,000.00 as and by way of attorneys fees and a
fee of P2,000.00 per appearance; and
h) the costs of the suit.

b) the amount of P75,000.00 as and by way of moral damages.

SO ORDERED.
In his appeal, Gonzalez submits the following assignments of error:
1. The trial court committed reversible error when it found that
treachery was present.
2. The trial court committed reversible error when it presumed that
there was treachery by taking judicial notice of the feature of the
automatic pistol involved in this case.
3. The trial court committed reversible error when it violated the
constitutional right of the accused-appellant to due process when it
took judicial notice of the feature of the automatic pistol involved in
this case without notice.
4. The trial court committed reversible error when it found AccusedAppellant guilty beyond reasonable doubt of the complex crime of
Murder with Double Frustrated Murder.
5. The trial court committed reversible error when it failed to
appreciate the mitigating circumstances of passion or obfuscation,
lack of intention to commit so grave a wrong, provocation or threat
on the part of the offended party immediately preceded the act,
incomplete defense of relative, and voluntary surrender.
6. The trial court committed reversible error when it failed to find
that the shooting incident was accidental.
7. The trial court committed reversible error when it gave credence
to the testimonies of prosecution witnesses Elmer Ramos and
Moises Castro.
8. The trial court committed reversible error when it disregarded
the basic principle that the accused is presumed innocent and his
guilt must be proven beyond reasonable doubt.

9. The trial court committed reversible error when it ordered

Accused-Appellant to pay for the civil liabilities.
The appellant seeks a reversal and prays that judgment be
rendered exempting him from criminal and civil liabilities. Appellant
declared that he had no intention to shoot Noel Andres much less
his wife nor the children. He lost his balance when his daughter
Trisha approached and pushed him backwards to stop him from
joining Dino and Noel Andres but the appellant tried to free his right
hand holding the gun and it accidentally fired. The single bullet
fired hit the last window on the left side of the Tamaraw FX. The
appellant claims that he did not see the passengers inside the
vehicle at the time of the shooting. This is corroborated by the
testimony of two witnesses for the prosecution who testified that
the windows of Andres vehicle are heavily tinted so that a person
outside the vehicle would not be able to see if there are people
inside. It is also argued that had the appellant intended to shoot
Noel Andres he could have simply done so by shooting at him
directly. The defense asserts that the evidence for the prosecution
failed to establish the attendance of treachery and without the
attendance of the said qualifying circumstance the crime
committed is homicide, not murder.
The appellant also points out that the trial court made the factual
finding that the shooting happened in a matter of seconds and that
it was preceded by a heated argument between the parties. Such
being the case, it is argued that the shooting could not have been
attended by treachery. There was no time for the appellant to
consciously and deliberately employ the mode of attack against
Noel Andres, nor against any one of the actual victims, to insure its
execution and at the same time to eliminate any form of retaliation
from the alleged intended victim. And yet, the trial court, contrary
to the evidence on record, held that the loading of the bullet into
the chamber of the gun, the cocking of the hammer, the release of
the safety pin and the pulling of the trigger by the appellant of his
automatic pistol constitute conscious and deliberate effort to
employ the gun as a means of committing the crime and
resultantly, qualified its commission by treachery. Such a finding
presupposes that the appellant loaded the gun to shoot Noel
Andres only that very moment when his son Dino and Noel Andres
were arguing. This conclusion has no basis on record. The appellant
testified that his gun was loaded before he left the house and two
witnesses for prosecution stated in court that a few seconds after
Noel Andres and Dino started shouting at each other, the appellant
got out of his car and shot at the last window on the left side of the

complainants vehicle. Further, the appellant assigns as error the

procedure adopted by the trial court in taking judicial notice that
the gun used by the appellant is an automatic pistol and as such, it
will not fire unless aimed at the intended target. The procedure
taken by the trial court is contrary to Section 3, Rule 129 of the
Rules of Court. [7 The trial court should have given both parties the
opportunity to present evidence, expert evidence, if necessary, to
inform the court on the subject matter. The appellant argues that
the factual finding borne by such erroneous procedure is equally
erroneous. The gun used by the appellant is a semi-automatic and
not an automatic pistol which means that the pistol used has no
external safety pin to be released and that the hammer need not
be cocked. The pulling of the trigger, intentional or not, will fire the
gun. The use of a semi-automatic pistol does not necessarily imply
treachery.
Appellant also argues that the testimonies of prosecution witnesses
Castro and Ramos were improperly given credence by the trial
court. The appellant contends that a reading of their testimonies
would show that their narration of the incident is rather absurd and
would show that they did not witness the actual shooting. Defense
witnesses, Gonzalez and his daughter, Trisha, on the other hand,
testified that Castro and Ramos arrived at the scene only after the
shooting.
As regards the injuries sustained by Kevin and Kenneth, it is argued
that considering that there was no intent to kill and that they
stayed in the hospital only for six days, the crime committed is
physical injuries. It is argued that the trial court erred in awarding
damages. The bunch of receipts allegedly representing the medical
expenses incurred for the injuries sustained by the victims was
erroneously admitted in evidence, without first requiring the
prosecution to establish the authenticity of the receipts. The
appellant also points out that the award for loss of earning capacity
has no basis as the deceased was unemployed at the time of the
incident.
Finally, the appellant assigns as error the trial courts rejection of
the mitigating circumstances pleaded by the defense which
allegedly attended the commission of the crime, i.e., lack of intent
to commit so grave a wrong, passion and obfuscation, incomplete
defense of a relative and voluntary surrender. The appellant asserts
that these mitigating circumstances were duly proven during the
trial and are supported by the evidence on record. The private
complainant Noel Andres testified that he saw the appellant getting

red in anger after they, Andres and the appellant, had a heated
argument immediately prior to the shooting. These admitted
circumstances show that the appellant was not in his proper state
of mind at the time of the shooting. First, he was angered by
Andres abusive language and later he got out of his car with a
loaded gun to protect his son from a perceived danger. The
appellant clams that his willingness to help the injured and his
voluntary surrender to the police should likewise be considered as
mitigating circumstances in the imposition of penalties.
The Solicitor-General agrees with the appellant that the crime was
not attended by the qualifying circumstance of treachery and
hence the crime committed by the appellant for the death of
Feliber Andres is homicide, not murder. The appellee takes into
consideration that the shooting was preceded by a heated
argument and that the supposed victim was placed on guard that
attack was imminent. It also appears that the shooting was done
impulsively. There is no evidence that the appellant deliberately
employed the means of attack to insure execution of the crime and
at the same time eliminate the risk of retaliation from the private
complainant. The appellee also agrees with the appellant that the
trial court erred in equating the use of an automatic pistol with
treachery. The trial court made the factual finding that the
appellants automatic pistol would not fire unless aimed and the
trigger is deliberately pulled and hence treachery attended the
shooting. The appellee submits that if we follow the reasoning of
the trial court it would appear that the appellant intended to shoot
at the complainants vehicle only as the shot was fired at the last
window on the left side of the FX away from where Andres was
allegedly seated. The fact that the gun was drawn and fired does
not mean that the mode of attack was consciously and deliberately
employed.
However, with respect to the injuries sustained by Kevin and
Kenneth, the appellee disagrees with the contention that the
appellant is liable only for slight physical injuries. The injuries
sustained by both children are head injuries and could have caused
their death if not for the immediate medical attention given them.
The number of days spent in the hospital is not determinative of
the severity of the wounds. Their nature and location should
instead be considered. The appellant cannot escape liability for
frustrated homicide for the injuries of the two children on the
ground that he fired a single shot at the vehicle of Noel Andres. He
is liable for all the consequences of his unlawful act even if the
crime committed is different from that intended.

As regards the pleaded mitigating circumstances, appellee asserts

that none can be considered in favor of the appellant. There is
evidence on record that the appellant did not voluntarily surrender
to the police and it appears from the testimonies of witnesses that
he entertained the possibility of flight but his car was stuck in
traffic along the exit of the memorial park. His pretense of
incomplete defense of a relative is belied by his own admission that
when he saw that Noel Andres did not have a gun he lowered his
hand holding the gun. There was allegedly no threat on the life of
his son at the time of the shooting, no uncontrollable fear nor
irresistible force that would mitigate the commission of the offense.
The Solicitor-General also seeks to uphold the pecuniary awards
granted by the trial court. The appellee alleges that it is not denied
by the appellant that Feliber Andres was a 38 year old registered
nurse at the time of the shooting. Although she was then
unemployed on account of her pregnancy, she still had earning
capacity and the trial court properly applied the salary of a
government nurse under the salary standardization scheme in the
computation of damages for the loss of earning capacity. The
receipts presented in evidence by the prosecution to establish
hospitalization and other medical expenses incurred by the private
complainants by reason of the injuries suffered by the victims were
duly authenticated by the prosecution witnesses and there is no
dispute that they are exact copies of the original receipts presented
in court. The objections raised by the appellant in this regard were
duly met by the evidence presented by the private complainants.
In sum, the appellee asserts that considering that the appellant
fired a single shot and in the process committed four offenses the
appellant should be held liable for the complex crime of homicide
for the death of Feliber Andres, double frustrated homicide against
Kevin and Kenneth and attempted homicide against Noel Andres.
Under the rules on complex crimes the penalty for the gravest
offense, i.e., reclusion temporal for homicide, should be imposed in
its maximum period.
The appeal has merit.
Treachery under par.16 of Article 14 of the Revised Penal Code is
defined as the deliberate employment of means, methods or forms
in the execution of a crime against persons which tend directly and
specially to insure its execution, without risk to the offender arising
from the defense which the intended victim might raise. For
treachery to be appreciated two elements must concur: 1) the

employment of means of execution that would insure the safety of

the accused from retaliatory acts of the intended victim and leaving
the latter without an opportunity to defend himself and 2) the
means employed were deliberately or consciously adopted by the
offender. [8 The suddenness of the attack, the infliction of the
wound from behind the victim, the vulnerable position of the victim
at the time the attack was made or the fact that the victim was
unarmed do not by themselves render the attack as
treacherous. [9This is of particular significance in a case of an
instantaneous attack made by the accused whereby he gained an
advantageous position over the victim when the latter accidentally
fell and was rendered defenseless. [10 The means employed for the
commission of the crime or the mode of attack must be shown to
have been consciously or deliberately adopted by the accused to
insure the consummation of the crime and at the same time
eliminate or reduce the risk of retaliation from the intended
victim. [11 Accordingly, it has been consistently held by this court
that chance encounters, impulse killing or crimes committed at the
spur of the moment or that were preceded by heated altercations
are generally not attended by treachery for lack of opportunity of
the accused to deliberately employ a treacherous mode of
attack. [12 Thus, the sudden attack made by the accused due to
his infuriation by reason of the victims provocation was held to be
without treachery. Sudden attacks made by the accused preceded
by curses and insults by the victim or acts taunting the accused to
retaliate or the rebellious or aggressive behavior of the victim were
held to be without treachery as the victim was sufficiently
forewarned of reprisal. [13 For the rules on treachery to apply the
sudden attack must have been preconceived by the accused,
unexpected by the victim and without provocation on the part of
the latter. [14
This Court has also had occasion to state that whether or not the
attack succeeds against its intended victim or injures another or
whether the crime committed is graver than that intended is
immaterial, as long as it is shown that the attack is attended by
treachery, the said qualifying circumstance may still be considered
by the court. [15Thus, the determining factor on whether or not the
commission of a crime is attended by treachery is not the resulting
crime committed but the mode of attack employed in its
execution. [16
Treachery is never presumed. It is required that the manner of
attack must be shown to have been attended by treachery as
conclusively as the crime itself. [17

We affirm the recommendation of the Solicitor-General that the

shooting was not attended by treachery and accordingly the crime
committed for the death of Feliber Andres is homicide and not
murder.
The encounter between Noel Andres and the appellant was a
chance encounter. They were total strangers before their vehicles
almost collided at an intersection inside the memorial park.
Unfortunately, heated exchange of remarks that followed the near
collision was fanned by a short temper, which in the case of the
appellant, was augmented by the improvident use of a firearm.
From a reading of the transcript of the testimonies of the witnesses,
it would appear that Noel Andres, who had his pregnant wife and
child with him, among others, on board the Tamaraw FX provoked
the altercation. After the near collision of his vehicle with that of
the appellant, he tailed behind the latters car towards the exit until
he had the chance to cut him off to scold him for his failure to
observe traffic rules. [18 Andres stated in court that he calmly told
the appellant to be careful with his driving and denied that he was
angry when he alighted from his vehicle to confront the
appellant. [19 His statement is belied by the witnesses, two
prosecution witnesses included, who uniformly testified that Andres
quarreled with or shouted and cursed at the appellant for the
latters recklessness at the intersection. [20 The appellant narrated
in court that Andres repeatedly shouted at him, Putang ina mo, ang
tanda-tanda mo na gago ka pa. [21 Andres hostile behavior
towards the appellant is evident from his statement in court that he
noticed the appellant turning red in anger. [22 It is highly
improbable for Gonzalez to have turned red in anger had Andres
been polite, as he claims he was, in scolding Gonzalez. Andres
could have simply communicated to the appellant his disgust for
the latters bad driving when he overtook the appellants car near
the scene of the shooting but instead he chose to block the
appellants path, insult and virtually provoke the appellant to
retaliate.
Andres stated in court that when he noticed Gonzalez infuriation he
immediately walked towards his vehicle, because according to him
the altercation was over. On his way to his FX he met another man,
whom he later found out to be the appellants son, Dino. It appears
that the altercation was far from over because again Andres had a
shouting match this time with Dino. [23 In a matter of seconds, the
appellant alighted from his car and fired a single shot at the last
window on the left side of Andres vehicle at an angle away from

Noel Andres. The single bullet fired hit Feliber Andres on the
forehead near the temporal region above the left eye and the two
children with metallic fragments of the bullet on their faces, one at
the cheek and the other below his left eye.
The prosecution did not present evidence as to the exact seating
arrangement of the victims inside the vehicle; suffice it to say, that
an examination of the pictures of the vehicle [24 one of which
shows a mass of blood stains on the left side (towards the drivers
seat) of the white seat cover below the head rest [25, would show
that the deceased Feliber must have been seated at the front
passengers seat and the children at the middle row behind the
drivers seat. [26 Another picture shows a bullet hole on the last
window on the left side of the vehicle [27 and another shows that
the front windshield appears undamaged. [28 A ballistics expert
appeared in court for the prosecution and testified that the bullet
fired at the FX came from the appellants gun, which fact was
admitted by the defense. The prosecution did not inquire from the
ballistics expert regarding the trajectory of the bullet or the
approximate distance of the appellant from the FX when he fired
his gun to establish whether or not the appellant aimed for Noel or
Feliber or simply fired indiscriminately at the latters vehicle. [29
At first blush it would seem that the shooting of Feliber Andres was
attended by treachery as she was inside the FX witnessing her
husbands altercation, first, with the appellant then with the
appellants son, totally defenseless from the shot that came
suddenly from her left side. Public outrage over the death of Feliber
was heightened by the fact that she was then pregnant with her
second child and her death left a new born baby girl and a two year
old boy motherless.
However, a meticulous review of the evidence prevents a
conclusive finding of treachery and any doubt must be resolved,
like the fact of the commission of an offense, in favor of the
accused. The pictures indicate that Gonzalez fired at the FX at an
angle away from Noel Andres and that Gonzalez was not aiming at
anybody in particular. It is not disputed that the appellants car was
directly behind the complainants FX and that Gonzalez who was
then seated at the drivers seat alighted from his car, took a few
steps then fired at the left side of the FX. Whether Noel Andres was
seated at the drivers seat inside his vehicle when Gonzalez fired at
the FX, as the prosecution asserts, or was standing by the door of
the drivers seat outside his vehicle, as the defense submits, it is
clear that the shot was fired away from Noel Andres. The bullet hit

Feliber near her temple above the left eye indicating that she was
facing left towards her husband when the shot was fired. [30 The
direct hit on Felibers head shows that the angle of the shot was
indeed away from Noel Andres. Even the eyewitness for the
prosecution testified that had the appellant intended to kill Noel
Andres he could have shot directly at him, considering that Noel
Andres was just a few steps away from him [31 and that Noel
Andres was visible from the outside because his window was
partially open. [32 The pictures show that the bullet hole was on
the third window on the left side of the Tamaraw FX [33belying any
attempt to shoot Noel Andres. Two prosecution witnesses Ramos
and Castro unequivocally declared that nothing or no one
prevented Gonzalez from shooting directly at Noel Andres and that
Gonzalez could have simply done so if he wanted to. But after
alighting from his car, Gonzalez took a few steps and shot at the
left side window of the FX. [34
The fact that the appellant fired his gun from behind the victim
does not by itself amount to treachery. There is no evidence on
record that the appellant deliberately positioned himself behind the
victim to gain advantage over him when he fired the shot. On the
contrary, the evidence before us reveals that the position of the
appellants car was not of his own doing but it became so when Noel
Andres overtook his car and cut off his path.
We note further, that the appellant did not act belligerently towards
Noel Andres even after the latter cut off the appellants path. Andres
stated in court that the appellant did not alight from his car nor
opened his window until he, Andres, tapped on it. [35 For his part
Gonzalez categorically stated in court that he did not point his gun
nor threatened Andres during their short spat. [36 Gonzalez,
although he had his gun in his car, did not react to Andres cursing
until the latter was having an altercation with the appellants son,
Dino. Gonzalez claimed that he perceived that his son was in
imminent danger. [37 Whether he overreacted or he shot at Andres
vehicle out of rage over Andres aggressive behavior, one thing
appears clear to us, that the shooting was not done in cold blood. It
is undisputed that the windows of the FX are heavily or darkly
tinted so that a person outside would not see if anybody was
inside. [38 The pictures of the FX [39 on record confirm the
testimonies of both prosecution and defense witnesses that the
other passengers of the FX were not visible from the outside.
Gonzalez admitted in court that Noel Andres mentioned that he has
passengers with him while he was shouting and cursing at Gonzalez
but there is no indication that Gonzalez had any opportunity to see

the passengers when he fired the shot. The totality of the evidence
on record fails to support a conclusion that Gonzalez deliberately
employed the mode of attack to gain undue advantage over the
intended nor the actual victim. Without any decisive evidence to
the contrary, treachery cannot be considered; thus the crime
committed is homicide. [40
The trial courts finding that the loading of the gun, the cocking of
the hammer and finally the pulling of the trigger constitute a
deliberate effort on the part of appellant to use the gun as a means
of a treacherous attack is patently erroneous. A single and
continuous attack cannot be divided into stages to make it appear
that treachery was involved. [41 The entire incident happened in a
matter of minutes, as testified to by witnesses, and as noted by the
trial court. [42 It was error to our mind for the trial court to divide
the assault in stages to arrive at the conclusion that the mode of
attack was consciously employed by the appellant. Contrary to the
finding of the trial court that the appellant prepared the gun before
getting out of his car, the appellant testified that he loaded his gun
before he left the house and that it was ready to fire when he
alighted his car. There was no time for him to reflect on the mode
of attack since he just picked up his gun and alighted from his car
and shot at the FX a few seconds after Dino and Noel Andres
started shouting at each other. [43 We note further that the trial
court pointed out that from the fact that the appellant prepared his
gun to shoot, this was an indication of the deliberate employment
of the gun as a means to kill; i.e. that the use of an automatic pistol
shows that the shooting was attended by treachery.
We do not agree that the weapon used, by itself, is determinative of
treachery, unless it is shown, and it is not herein shown, that the
appellant deliberately used the gun to insure the commission of the
crime and to render the unarmed victim defenseless. As discussed
above, the encounter between the appellant and the Andresses
was a chance encounter and the appellants gun was in the glove
compartment of his car even before he left his house. The shooting
was clearly a spur of the moment or impulsive decision made by
the appellant preceded by a heated altercation at the instance of
the private complainant. Jurisprudence teaches us that under the
circumstances, treachery is not obtaining. In the case of People vs.
Valles, [44 the accused, a security guard, fired his Armalite and
mortally wounded the victim when the latter approached the
accused four times insisting on entering the workplace wearing
improper uniform, then cursed and insulted and challenged the
accused to a fight. We held that the shooting was not attended by

treachery as the shooting was preceded by a heated altercation at

the instance of the victim. It is to be noted that the kind of weapon
used against an unarmed victim was not taken into consideration in
determining the attendance of treachery; it is the mode of attack
employed by the accused under the particular circumstances of a
case that determines its attendance in the commission of a crime.
We find that the prosecution has not discharged its burden to show
that the shooting was attended by treachery and we are convinced
that the crime committed for the death of Feliber Andres is
homicide.
As regards the injuries sustained by the two children we find that
the crime committed are two counts of slight physical injuries. The
intent to kill determines whether the crime committed is physical
injuries or homicide and such intent is made manifest by the acts of
the accused which are undoubtedly intended to kill the
victim. [45 In a case wherein the accused did not know that a
person was hiding behind a table who was hit by a stray bullet
causing superficial injuries requiring treatment for three days, the
crime committed is slight physical injuries. [46 In case of doubt as
to the homicidal intent of the accused, he should be convicted of
the lesser offense of physical injuries. [47We have earlier pointed
out that the intent to kill is absent in this case. It was also found
that one small metallic fragment was extracted from Kenneth below
his left eye while another fragment was extracted from Kevin
immediately below the level of his skin before the cheek
bone. [48 An examination of the testimonies of the attending
physicians, showed that the wounds sustained by the two children
from the metallic fragments are not in themselves fatal but may
cause death if left untreated. One of the attending physician
testified in court that the fragments themselves will not cause
complication, it is the entry of the fragment or the open wound that
is susceptible to infection. [49 Two small fragments were no longer
extracted from the face of Kevin Valdez, as the doctor deemed it to
be without danger of complication. [50 We note that the various
sizes of the metallic fragments were not established, at least to
give an indication of the severity of the wounds sustained. Both
children were discharged after six days of treatment and there is no
showing that they required subsequent treatment or that they were
immobilized for a greater number of days by reason of the injuries
sustained. Considering the nature and location of their injuries and
the number of days required for their treatment, we find that the
crime committed for the injuries sustained by the children are two
counts of slight physical injuries under Art. 266 of the Revised Penal
Code which imposes a penalty of arresto menor or imprisonment
for 1 to 30 days for injuries sustained that has incapacitated the

victim for one to nine days or required medical attendance for the
same period. For evident lack of criminal intent to kill the
complainant, Noel Andres, as above stated, the information for
attempted homicide must fail.
The mitigating circumstances of voluntary surrender, passion and
obfuscation, incomplete defense of a relative and lack of intent to
commit so grave a wrong, pleaded by the defense, were not
convincingly proved and none can be considered in the imposition
of penalties. The testimony of prosecution witness contradicts the
appellants pretense of voluntary surrender. Witness Ramos testified
that the appellant drove away towards the gate of the memorial
park while he was questioning him after the shooting and had not
Noel Andres and onlookers blocked his path the appellant could
have fled the scene of the crime. [51
The mitigating circumstance of passion and obfuscation is also not
obtaining. For this mitigating circumstance to be considered, it
must be shown that (1) an unlawful act sufficient to produce
passion and obfuscation was committed by the intended victim; (2)
that the crime was committed within a reasonable length of time
from the commission of the unlawful act that produced the
obfuscation in the accuseds mind; and that (3) the passion and
obfuscation arose from lawful sentiments and not from a spirit of
lawlessness or revenge. [52 Noel Andres act of shouting at the
appellants son, who was then a nurse and of legal age, is not
sufficient to produce passion and obfuscation as it is claimed by the
accused. Besides, the appellants son, Dino was shouting back at
Noel Andres. It was not a case wherein the appellants son appeared
helpless and oppressed that the appellant lost his reason and shot
at the FX of Noel Andres. The same holds true for the appellants
claim of provocation on the part of Noel Andres. Provocation must
be sufficient to excite a person to commit the wrong committed and
that the provocation must be commensurate to the crime
committed. The sufficiency of provocation varies according to the
circumstances of the case. [53 The aggressive behavior of Noel
Andres towards the appellant and his son may be demeaning or
humiliating but it is not sufficient provocation to shoot at the
complainants vehicle.
The plea for the appreciation of the mitigating circumstance of
incomplete defense of a relative is also unmeritorious since the act
of Andres in cursing and shouting at the appellant and his son do
not amount to an unlawful aggression against them, Dino Gonzalez.
Finally, the plea for the appreciation of the mitigating circumstance

of lack of intent to commit so grave a wrong is likewise devoid of

merit. This mitigating circumstance is obtaining when there is a
notable disparity between the means employed by the accused to
commit a wrong and the resulting crime committed. The intention
of the accused at the time of the commission of the crime is
manifested from the weapon used, the mode of attack employed
and the injury sustained by the victim. [54 The appellants use of a
gun, although not deliberately sought nor employed in the
shooting, should have reasonably placed the appellant on guard of
the possible consequences of his act. The use of a gun is sufficient
to produce the resulting crimes committed.
For the death of Feliber Andres, and in the absence of any
mitigating circumstance, the appellant is hereby sentenced to an
indeterminate sentence of 8 years and 1 day of prision mayor, in its
medium period, as minimum to 14 years 8 months and 1 day of
reclusion temporal in its medium period, as maximum. For each
count of the slight physical injuries committed against Kenneth
Andres and Kevin Valdez, the appellant is hereby sentenced to 20
days of arresto menor in its medium period.
The rules on the imposition of penalties for complex crimes under
Art. 48 of the Revised Penal Code are not applicable in this case.
Art. 48 applies if a single act constitutes two or more grave and less
grave felonies or when an offense is a necessary means of
committing another; in such a case, the penalty for the most
serious offense shall be imposed in its maximum period. Art. 9 of
the Revised Penal Code in relation to Art. 25 defines grave felonies
as those to which the law attaches the capital punishment or
afflictive penalties from reclusion perpetua to prision mayor; less
grave felonies are those to which the law attaches a penalty which
in its maximum period falls under correctional penalties; and light
felonies are those punishable by arresto menor or fine not
exceeding two hundred pesos. Considering that the offenses
committed by the act of the appellant of firing a single shot are one
count of homicide, a grave felony, and two counts of slight physical
injuries, a light felony, the rules on the imposition of penalties for
complex crimes, which requires two or more grave and/or less
grave felonies, will not apply.
The pecuniary award granted by the trial court for actual damages
was duly established by the testimonies of the prosecution
witnesses as supported by the original receipts for hospitalization
and other medical expenses presented in evidence by the
prosecution. The award for loss of earning capacity is likewise

sustained for the reason that while Feliber Andres was pregnant
and was unemployed at the time of death, it is not disputed that
she was a registered nurse and had earning capacity. Noel Andres
also testified that he and his wife had plans to go back to Saudi
Arabia to work after Feliber had given birth to their second baby.
While there is no evidence as to Felibers actual income at the time
of her death, in view of her temporary separation from work
because of her pregnancy, we do not consider it reversible error for
the trial court to peg her earning capacity to that of the salary of a
government nurse under the salary standardization law, as a fair
estimate or reasonable assessment of her earning capacity at the
time of her death. It would be grossly inequitous to deny her
spouse and her minor children damages for the support that they
would have received, considering clear evidence on record that she
did have earning capacity at the time of her death.
The awards for moral damages for the death of Feliber Andres and
for the injuries sustained by the two children, which under the
circumstances are reasonable, are likewise sustained.
WHEREFORE , the decision of the trial court is hereby MODIFIED.
The appellant is hereby found guilty of homicide for the death of
Feliber Andres and is sentenced to an indeterminate sentence of 8
years and 1 day of prision mayor in its medium period, as
minimum, to 14 years 8 months and 1 day of reclusion temporal in
its medium period, as maximum. For each count of the slight
physical injuries committed against Kenneth Andres and Kevin
Valdez, the appellant is hereby sentenced to 20 days of arresto
menor.
The pecuniary awards granted by the trial court are hereby
sustained.
SO ORDERED.

G.R. No. 150910

February 6, 2006

BIENVENIDO GONZALUDO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
Under consideration is this petition for review on certiorari under
Rule 45 of the Rules of Court to nullify and set aside the following
issuances of the Court of Appeals (CA) in CA-G.R. CR No. 22185, to
wit:
1. Decision dated 19 July 2001, 1 dismissing the appeal
thereto taken by the herein petitioner from a judgment of
conviction promulgated by the Regional Trial Court of
Bacolod City, Branch 50, in a criminal case for estafa thru
falsification of public document thereat commenced by the
People against four (4) accused, including the petitioner;
and

2. Resolution dated 22 October 2001,2 denying petitioners

motion for reconsideration.
The material facts may be briefly stated, as follows:
Before his death in 1992, one Ulysses Villaflor was a member of the
Bacolod City Police Office. On January 11, 1978, Ulysses married
Anita Manlangit in Bacolod City. Thereafter, the couple stayed with
Ulyssess mother Anastacia Tobongbanua at the latters house at
Purok 5, Mansungay, Bacolod City.
Later, Ulysses was assigned to Pagadian City. However, he would
often go home to Bacolod City to supervise his tire-recapping
business thereat.
Meanwhile, his wife Anita secured a teaching job in Catubig, Samar
prompting her to leave Bacolod City and live in Samar.
After less than a year in Pagadian City, Ulysses was re-assigned to
Bacolod City. And, in December of 1978, he was able to buy
for P1,500.00 a small house located near that of his mother at
Purok 5, Mansungay, Bacolod City.
Then, in 1985, Ulysses took one Rosemarie Gelogo as his mistress
and brought her into the house. In time, improvements were made
on the house, the most substantial of which were those introduced
sometime in March 1991. What used to be a small house, which
Ulysses bought for only P1,500.00, was thus transformed into a 2storey structure partially made of concrete hollow blocks and with
galvanized iron roofing which thereby enhanced its value
to P200,000.00.
After Ulyssess demise in January of 1992, his mistress Rosemarie
Gelogo offered to sell the 2-storey house forP80,000.00 to herein
petitioner Bienvenido Gonzaludo, a.k.a. Ben Gonzaludo, who lives
just nearby. Initially, petitioner was not interested to buy the house
because he already had one, let alone the fact that he did not have
enough money for the purpose. Nonetheless, since the house was
being sold for a cheap price, petitioner convinced the spouses
Gregg Canlas and Melba Canlas, to whom he is related by affinity,
to buy the same. Herein, petitioner introduced the Canlases to
Rosemarie Gelogo.

On January 20, 1993, Rosemarie Gelogo and Gregg Canlas

executed a Deed of Sale,3 witnessed by petitioner. In that deed,
Rosemarie Gelogo signed as Rosemarie G. Villaflor and represented
herself to be the lawful owner of the 2-storey house. By virtue of
the same deed, vendee Gregg Canlas acquired all of Rosemaries
rights and interest on the subject house.
Later, upon complaint of Ulyssess widow Anita Manlangit, an
Information dated May 31, 19944 was filed with the Regional Trial
Court of Bacolod City charging Rosemarie Gelogo, alias Rosemarie
Villaflor, the spouses Gregg Canlas and Melba Canlas and petitioner
with the crime of Estafa thru Falsification of Public Document
allegedly committed, as follows:
That on or about the 20th day of January, 1993 in the City of
Bacolod, Philippines, and within the jurisdiction of this Honorable
Court, the herein accused, conspiring, confederating and acting in
concert, with intent to gain, defrauded the herein offended party,
Anita Manlangit Vda. de Villaflor, herein represented by her motherin-law and Attorney-in-Fact, Anastacia Tobongbanua, in the
following manner, to wit: that accused Rosemarie Gelogo alias
Rosemarie G. Villaflor being the occupant of a house made of
concrete materials with a floor area of 40 ft. by 24 ft., with
galvanized iron roofing, worth P200,000.00, owned by the deceased
Ulysses Villaflor, husband of the herein offended party, did, then
and there willfully, unlawfully and feloniously commit acts of
falsification by then and there preparing and/or causing to be
prepared a public document denominated as a Deed of Sale dated
January 20, 1993 entered as Doc. No. 402, Page No. 81, Book No.
XVII, Series of 1993 of the Notarial Register of Atty. Ramon B.
Clapiz, to the effect that she is the lawful owner of the said house
and affixing or causing to be affixed thereon her name and
signature, Rosemarie G. Villaflor, purportedly as wife of the
deceased Ulysses Villaflor, thus making untruthful statement in the
narration of facts as accused well know that such was not the case
for the deceased Ulysses Villaflor has a legal wife in the person of
the herein offended party, by reason of which accused was able to
effect the sale and eventual occupancy of the said house to the
herein accused Sps. Gregg Canlas and Melba Canlas who despite of
their knowledge that such house was not owned by Rosemarie
Gelogo bought the same from her in the amount of P80,000.00 and,
herein accused Bienvenido Gonzaludo alias "Ben", despite of his
knowledge that such house was not owned by Rosemarie Gelogo,
participated in the commission of the herein offense by causing his
name and signature to be affixed in the said Deed of Sale as

witness to the fraudulent sale entered into by the parties, to the

damage and prejudice of the herein offended party in the amount
of TWO HUNDRED THOUSAND PESOS (P200,000.00), Philippine
Currency.
Act contrary to law.
Docketed as Criminal Case No. 94-16532, the Information was
raffled to Branch 50 of the court.
Because accused Rosemarie Gelogo remained at large, only the
spouses Gregg Canlas and Melba Canlas and herein petitioner were
arraigned, all of whom entered a plea of "Not Guilty."
After due proceedings, the trial court, in a decision dated February
17, 1998,5 acquitted the Canlas spouses but convicted petitioner of
the complex crime of Estafa Thru Falsification of Public Document
and sentenced him accordingly. Dispositively, the decision reads:
FOR ALL THE FOREGOING, the Court finds the accused Bienvenido
Gonzaludo GUILTY beyond reasonable doubt as a principal and coconspirator of the complex Crime of Estafa Thru Falsification of a
Public Document and there being no extenuating circumstances
and pursuant to the provision of Article 315 of the Revised Penal
Code, he is sentenced to suffer the penalty of Reclusion Temporal.
Applying the Indeterminate Sentence Law, the accused is
sentenced to a prison term of Eight (8) years of Prision Mayor to
Twenty (20) years of Reclusion Temporal. By way of Civil Liability,
the accused is sentenced to pay the offended party the sum
of P200,000.00, representing the value of the house and the sum
of P20,000.00 as attorneys fees.
The case with respect to the accused-Spouses Gregg and Melba
Canlas is ordered dismissed as their guilt was not proved beyond
reasonable doubt.
Therefrom, petitioner went to the CA via ordinary appeal in CA-G.R.
CR No. 22185.
As stated at the outset hereof, the appellate court, in its decision
dated July 19, 2001, dismissed petitioners appeal for lack of merit
and affirmed the trial courts judgment of conviction, thus:

WHEREFORE, foregoing premises considered, the appeal is hereby

ordered DISMISSED, having no merit in fact and in law, and the
decision of the trial court AFFIRMED.
SO ORDERED.
With his motion for reconsideration having been denied by the CA
in its resolution of October 22, 2001, petitioner is now with us via
the present recourse on his submissions that the CA erred when it I xxx sustained the decision of the trial court convicting
the petitioner of the crime of Estafa thru Falsification of
Public Document as defined and punished under Paragraph
2(a), Article 315, Revised Penal Code EVEN IF not any of the
statutory elements of the crime herein charged is present or
has been proved and/or not all of the statutory elements of
the offense thus charged are present or have been proved
beyond reasonable doubt;
II xxx sustained the conviction of your petitioner
ALTHOUGH the material allegations in the information filed
below have not been proved at all beyond reasonable doubt;
III xxx sustained the conviction of herein petitioner of a
crime not properly charged in the information;
IV xxx grossly misappreciated the facts and misapplied the
law and jurisprudence concerning the status of the house
subject of this case as to whether the same is totally a
conjugal property of Ulysses and Anita or the house wholly
or substantially belongs to Rosemarie Gelogo a.k.a.
Rosemarie G. Villaflor.
The petition is partly impressed with merit.
Basic in this jurisdiction is the doctrine that in criminal cases, an
appeal throws the whole case wide open for review. Issues, whether
raised or not by the parties, may be resolved by the appellate
court.6 The Court is duty-bound to look into the validity of the
factual and legal basis relied upon by the two (2) courts below in
convicting petitioner in this case.
It is worthy to note that petitioner was convicted by the trial court
of the complex crime charged in the Information for allegedly

having conspired with Rosemarie Gelogo, who used the fictitious

surname "Villaflor" for the purpose of giving her a semblance of
authority to sell the house purportedly owned by her paramour,
Ulysses Villaflor, who was legally married to private complainant,
Anita Villaflor.
First and foremost, therefore, it is incumbent upon the prosecution
to establish Rosemarie Gelogos criminal liability for the complex
crime of estafa through falsification of public document, and
thereafter, establish by proof beyond reasonable doubt that herein
petitioner conspired with Rosemarie in the commission of the same
complex crime. In other words, if Rosemarie cannot be held liable
for the complex crime of estafa through falsification of public
document under the Information filed in this case, with all the more
reason should it be for petitioner, as alleged co-conspirator.
For an accused to be convicted of the complex crime of estafa
through falsification of public document, all the elements of the two
crimes of estafa and falsification of public document must exist.
To secure conviction for estafa under Article 315, paragraph 2(a) of
the Revised Penal Code, the Court has time and again ruled that
the following requisites must concur:
(1) that the accused made false pretenses or fraudulent
representations as to his power, influence, qualifications,
property, credit, agency, business or imaginary transactions;
(2) that such false pretenses or fraudulent representations
were made prior to or simultaneous with the commission of
the fraud;
(3) that such false pretenses or fraudulent representations
constitute the very cause which induced the offended party
to part with his money or property; and
(4) that as a result thereof, the offended party suffered
damage7 (Emphasis supplied).
There is no question that the first, second and fourth elements are
present: there was false or fraudulent misrepresentation by
Rosemarie Gelogo when she used the fictitious surname "Villaflor";
the misrepresentation or false pretense was made prior to or
simultaneous with the commission of the fraud; and private

complainant Anita Manlangits right to the subject 2-storey house

was lost or at the very least prejudiced when Rosemarie sold it to
the Canlases.
It is petitioners thesis, however, that there is here an absence of
the third element, i.e., "that such false pretenses or fraudulent
representations constitute the very cause which induced the
offended party to part with his money or property," contending that
private complainant Anita Manlangit, who was the offended party in
this case, was never induced to part with any money or property by
means of fraud, committed simultaneously with the false pretense
or fraudulent representation by Rosemarie.
We find merit in petitioners submission.
As early as in the 1903 case of U.S. vs. Mendezona, 8 we held that
therein accused may be convicted for estafa only when the deceit
or false pretenses, committed simultaneously with the fraud, were
the efficient cause or primary consideration which induced the
offended party to part with his money or property.
Thirty (30) years thereafter, the rule remains the same. In the 1933
case of People vs. Lilius,9 the Court, through then Chief Justice
Ramon Avancea, acquitted the accused of estafa because the
deceit did not precede the defraudation, which means that the
deceit was not the cause which could have induced the damage or
prejudice to or loss of property suffered by the injured
party.1avvphil.net
In the cases of People vs. Quesada, 10 People vs. Fortuno,11 and
People vs. Sabio,12 which span more than another forty-five (45)
years after Lilius, the Court continued to apply the same principle in
determining criminal liability for estafa, i.e., that the deceit must
have been committed prior to or simultaneous with the fraudulent
act because this was the only way that said deceit could become
the efficient cause or primary consideration which could have
induced the offended party to part with his money or property.
The doctrine remains the same a hundred (100) years after the
1903 case of Mendezona. Thus, in the 2003 case of Alcantara vs.
Court of Appeals,13 this Court acquitted the therein accused of the
crime of estafa explaining, through Justice Romeo J. Callejo, Sr., that
the false pretense or fraudulent act must be committed prior to or
simultaneously with the commission of the fraud, thus:

xxx 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.
It is a generic term embracing all multifarious means which human
ingenuity can device, and which are resorted to by one individual to
secure an advantage over another by false suggestions or by
suppression of truth and includes all surprise, trick, cunning,
dissembling and. any unfair way by which another is cheated. And
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 which
deceives or is intended to deceive another so that he shall act upon
it to his legal injury. The false pretense or fraudulent act must be
committed prior to or simultaneously with the commission of the
fraud.
We find no cogent reason to depart from this settled principle that
the deceit, which must be prior to or simultaneously committed
with the act of defraudation, must be the efficient cause or primary
consideration which induced the offended party to part with his
money or property and rule differently in the present case.
While it may be said that there was fraud or deceit committed by
Rosemarie in this case, when she used the surname "Villaflor" to
give her semblance of authority to sell the subject 2-storey house,
such fraud or deceit was employed upon the Canlas spouses who
were the ones who parted with their money when they bought the
house. However, the Information charging Rosemarie of estafa in
the present case, alleged damage or injury not upon the Canlas
spouses, but upon private complainant, Anita Manlangit. Since the
deceit or fraud was not the efficient cause and did not induce Anita
Manlangit to part with her property in this case, Rosemarie cannot
be held liable for estafa. With all the more reason must this be for
herein petitioner.
The lack of criminal liability for estafa, however, will not necessarily
absolve petitioner from criminal liability arising from the charge of
falsification of public document under the same Information
charging the complex crime of estafa through falsification of public
document. It is settled doctrine that
When a complex crime has been charged in an information and the
evidence fails to support the charge on one of the component

offenses, can the defendant still be separately convicted of the

other offense? The question has long been answered in the
affirmative. In United States vs. Lahoylahoy and Madanlog (38 Phil.
330), the Court has ruled to be legally feasible the conviction of an
accused on one of the offenses included in a complex crime
charged, when properly established, despite the failure of evidence
to hold the accused of the other charge.14
Article 172 of the Revised Penal Code punishes any private
individual who shall commit any of the acts of falsification
enumerated in Article 171 in any public or official document or
letter of exchange or any other kind of commercial document. In
turn, Article 171 of the same Code provides:
Art. 171. Falsification by public officer, employee or notary or
ecclesiastic minister.- The penalty of prision mayor and a fine not to
exceed P5,000 pesos [sic] shall be imposed upon any public officer,
employee, or notary who, taking advantage of his official position,
shall falsify a document by committing any of the following
acts:1avvphil.net
1. Counterfeiting or imitating any handwriting, signature or
rubric;
2. Causing it to appear that persons have participated in any
act or proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in any act or
proceeding statements other than those in fact made by
them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine
document which changes its meaning;
7. Issuing in an authenticated form a document purporting
to be a copy of an original document when no such original
exists, or including in such a copy a statement contrary to,
or different from, that of the genuine original; or

8. Intercalating any instrument or note relative to the

issuance thereof in a protocol, registry, or official book.
The same penalty shall be imposed upon any ecclesiastical minister
who shall commit any of the offenses enumerated in the preceding
paragraphs of this article, with respect to any record or document
of such character that its falsification may affect the civil status of
persons. (Emphasis supplied)
As correctly found by the trial court, petitioner conspired with
Rosemarie to falsify, that is, by making untruthful statement in the
narration of facts in the deed of sale, by declaring Rosemarie to be
the owner of the house subject of such sale and signing as
"Rosemarie Villaflor" instead of her real name, Rosemarie Gelogo,
in order to sell the same to the Canlas spouses. It is established by
evidence beyond reasonable doubt that Rosemarie committed the
crime of falsification of public document. Likewise, proof beyond
reasonable doubt has been duly adduced to establish conspiracy
between Rosemarie and petitioner who is the brother-in-law of
Melba Canlas, one of the buyers of the house in this case.
WHEREFORE, the assailed decision and resolution of the Court of
Appeals are hereby MODIFIED. Petitioner is hereby ACQUITTED of
the complex crime of Estafa through Falsification of Public
Document, but found GUILTY of the crime of Falsification of Public
Document and is accordingly imposed an indeterminate sentence
of 4 months and 1 day of arresto mayor, as minimum, to 2 years, 4
months and 1 day of prision correccional, as maximum, and to pay
a fine of P5,000.00.
No costs.
SO ORDERED.

bought pandesal at 5 oclock am near her employers house in the

past two weeks. Alarmed, she refused to do his bidding, but
Sabadlab poked a gun at her throat. Two other men whom she did
not recognize joined Sabadlab at that point. They forced her into
the backseat of a parked car, and one of Sabadlabs cohorts
blindfolded her with a handkerchief. The car moved forward, and
stopped after twenty minutes of travel. Still blindfolded, she was
brought out of the car. Sabadlab said that he would remove her
clothes. Sabadlab then undressed her, leaving only the blindfold on
her. One of them tied her hands behind her back. Sabadlab began
kissing her body from the neck downwards. Although blindfolded,
she knew that it was Sabadlab because his cohorts were calling out
his name as he was kissing her body. Then they made her lie flat
on the ground with her hands still tied behind her back. Sabadlab
raped her in that position. The others took their turns in raping her
after Sabadlab. To prevent her from shouting for help, Sabadlab
stuffed her mouth with crumpled newspapers. The three ravished
her again and again, that she could not remember the number of
times they did so.
G.R. No. 175924, March 14, 2012
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
ERLAND SABADLAB Y BAYQUEL, ACCUSED-APPELLANT.
DECISION
BERSAMIN, J.:
On October 28, 2003, the Regional Trial Court (RTC), Branch 140, in
Makati City pronounced Erland Sabadlab y Bayquel guilty of forcible
abduction with rape committed against AAA, [1] a 16-year old
domestic helper, and penalized him withreclusion perpetua.[2] On
April 26, 2006, the Court of Appeals (CA) affirmed the conviction
and the penalty, but modified the civil damages.[3] Hence,
Sabadlab appeals.

At around 3:00 oclock pm, Sabadlab and his cohorts returned a

blindfolded AAA by car back to Dapitan Street, but let her go only
after sternly warning that they would surely kill her if she told
anyone about the rapes. Once they left, she proceeded to MA
Montessori to fetch her ward. She waited there until 5:30 pm.
Upon her arrival at the house, AAAs employer noticed the kiss
marks on her neck. AAA at first lied about the kiss marks, but she
ultimately disclosed the rapes because her irritated employer
slapped and boxed her on the stomach to force her to disclose.

Antecedents

On March 13, 2002, her employer brought AAA to the Makati Police
Station to report the rapes. AAA underwent medico-legal
examination later that day at the PNP Crime Laboratory in Camp
Crame Quezon City. The results of the medico-legal examination
were embodied in Medico-Legal Report No. M-797-02 issued by
medico-legal officer Dr. Mary Ann P. Gajardo, viz:

Both the RTC and the CA agreed on the factual antecedents.

PHYSICAL INJURIES:

AAA was then walking at around noon of March 12, 2002 on

Dapitan Street in Makati City, proceeding towards MA Montessori to
fetch her employers son who was studying there. Suddenly, a man
(later identified as Sabadlab) grabbed her by the shoulder and
ordered her to go with him. She recognized him to be the man who
had
persistently
greeted
her
every
time
she
had

1. Ecchymosis, right mandibular region, measuring 2.5 x 2.5 cm, 8

cms from the anterior midline.
2. Ecchymosis, neck, measuring 3 x 2.5 cms, 6 cms right of the
anterior midline.

3. Ecchymosis, neck, measuring 3 x 2.5 cms, 4.5 cms left of the

anterior midline.
4. Ecchymosis, nape, measuring 3.5 x 2.5 cms, 4 cms right of the
posterior midline.
5. Ecchymosis, nape, measuring 4.5 x 3 cms, 4 cms left of the
posterior midline.
6. Ecchymosis, right breast, measuring 4 x 3.5 cms. 10 cms from
the anterior midline.
7. Ecchymosis, sternal region, measuring 9 x 3 cms, bissecting the
anterior midline.
8. Ecchymosis, left breast, measuring 3.5 x 2.5 cms, 9 cms from the
anterior midline.
9. Ecchymosis, left breast, measuring 3.5 x 3 cms, 11 cms from the
anterior midline.
10. Abrasion, left scapular region, measuring 3.5 x 0.5 cms. 14
cms from the posterior midline
GENITAL:
PUBIC HAIR: Moderate
LABIA MAJORA: Full, convex and slightly gaping.
LABIA MINORA: Pinkish brown slightly hypertrophied labia minora
in between.
HYMEN: Presence of shallow fresh lacerations at 7 oclock position
and deep fresh lacerations at 6 and 9 oclock position. Congested.
POSTERIOIR FOURCHETTE: Abraded/Congested
EXTERNAL VAGINAL ORIFICE: Offers strong resistance upon
introduction of the examiners index finger.
VAGINAL CANAL: Narrow with prominent rugosities.
CERVIX: Soft and close
PERIURETHRAL AND VAGINAL SMEARS: Negative for spermatozoa
and negative for gram (-) diploxocci.
CONCLUSION: Findings are compatible with recent loss of virginity.
Barring unforeseen complications, it is estimated that the above
injuries will heal within 3-5 days. [4]
Afterwards, AAA and the policemen went to the vicinity where she
had usually boughtpandesal to look for the suspects. She spotted

Sabadlab in one of the nearby restaurants and pointed to him. The

policemen apprehended Sabadlab and brought him to the station,
where he gave his name as Erland Sabadlab y Bayquel. That was
her first time to know the name of Sabadlab.
These antecedents impelled the Office of the City Prosecutor of
Makati to immediately charge Sabadlab and two John Does with
forcible abduction with rape via the information dated March 13,
2002, alleging:
That on or about the 12 th day of March of 2002, in the City of
Makati, Philippines a place within the jurisdiction of this Honorable
Court, the above-named accused together with two (2) John Does
whose names and whereabouts are still unknown, with lewd
designs and by means of force, violence and intimidation, did then
and there willfully, unlawfully and feloniously take and carry away
AAA, 16 years of age, against her will from Dapitan St., Barangay
Guadalupe, Makati City and brought her to an undisclosed place,
where accused by means of force, violence and intimidation had
carnal
knowledge
of
complainant
against
her
will.
CONTRARY TO LAW.[5]
In his defense, Sabadlab denied the charge and asserted alibi,
claiming that on March 12, 2002, he was at Billiard M where he
worked as a spotter; that he stayed there until noon, leaving the
place only to have lunch; and that he returned to Billiard M at 12:30
pm and stayed there until he was arrested at 7:00 pm of March 12,
2002. Frederick Dionisio and Nathaniel Salvacion corroborated
Sabadlabs alibi.
As stated, the RTC convicted Sabadlab for forcible abduction with
rape as charged based on AAAs positive identification of him as
one of the rapists, observing that her physical injuries and fresh
hymenal lacerations were consistent with her account of the rapes,
decreeing:
WHEREFORE, finding accused ERLAND SABADLAB y BAYQUEL
GUILTY BEYOND REASONABLE DOUBT as principal of the crime of
forcible abduction with rape charged in this case, he is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA and to
pay the costs.
On the civil aspect, the accused is ordered to pay AAA the sum of
FIFTY THOUSAND PESOS (P50,000.00) as EXEMPLARY DAMAGES

and ONE HUNDRED THOUSAND PESOS (P100,000.00) as MORAL

DAMAGES.
SO ORDERED.[6]
On appeal in the CA, Sabadlab assigned the following errors, [7] to
wit:
I.
THE TRIAL COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND
CREDENCE TO THE HIGHLY INCREDIBLE AND INCONSISTENT
TESTIMONY OF THE PRIVATE COMPLAINANT.

In addition to the arguments and submissions made in his

appellants brief in the CA, Sabadlab indicates in his supplemental
brief[9] that AAAs version was ambiguous and implausible, and
conflicted with human experience as borne by the following,
namely: (a) the State did not present any torn apparel; (b) no bodily
injuries were shown to prove that AAA had resisted the sexual
intercourse; (c) AAA did not cry for help; and (d) AAA did not
escape despite several opportunities to do so. He contends,
moreover, that the States evidence established only simple
seduction.[10]
Ruling
We affirm the conviction.

II.
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY OF THE CRIME CHARGED DESPITE FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.
Nonetheless, the CA sustained his conviction and the penalty
of reclusion perpetua, holding that the supposed inconsistencies
referred to trivial matters or innocent lapses that did not affect the
credibility of AAA as a witness but were instead badges of veracity
or manifestations of truthfulness of the material points of her
testimony. The CA thus disposed:
WHEREFORE, premises considered, the appeal is hereby DENIED.
The Decision of the RTC dated October 28, 2003 is AFFIRMED with
MODIFICATION as follows:
1. The award of moral damages is REDUCED to P50,000.00;
2. The award of exemplary damages is DELETED;
3. Appellant is ordered to pay the amount of P50,000.00 as
civil indemnity.
Pursuant to Section 13 (C), Rule 124 of the Revised Rules of
Criminal Procedure, appellant may appeal this case to the Supreme
Court via a Notice of Appeal filed before this Court.
SO ORDERED.[8]
Upon the denial of his motion for reconsideration on August 2,
2006, Sabadlab is now before the Court to seek the final review.

First of all, Sabadlab continues to assail the credibility of AAAs

recollections. We understand why he does so, because the
credibility of the victims testimony is a primordial consideration in
rape.[11] Yet, because both the RTC and the CA unanimously
regarded AAA as a credible and spontaneous witness, he has now
to present clear and persuasive reasons to convince us to reverse
both lower courts determination of credibility and to resolve the
appeal his way.
Our review reveals, however, that Sabadlab has not tendered any
clear and persuasive reasons that may warrant the reversal or
modification of the findings of both lower courts on the credibility of
AAA and his criminal liability. The supposed inconsistencies dwelled
on minor details or collateral matters that the CA precisely held to
be badges of veracity and manifestations of truthfulness due to
their tendency of demonstrating that the testimony had not been
rehearsed or concocted. It is also basic that inconsistencies bearing
on minor details or collateral matters should not adversely affect
the substance of the witness declaration, veracity, or weight of
testimony.[12] The only inconsistencies that might have discredited
the victims credible testimony were those that affected or related
to the elements of the crime. Alas, that was not true herein.
The supposed inconsistencies were inconsequential to the issue of
guilt. For one, the matter of who of the three rapists had
blindfolded and undressed AAA was trifling, because her confusion
did not alter the fact that she had been really blindfolded and
rendered naked. Nor did the failure to produce any torn apparel of
AAA disprove the crime charged, it being without dispute that the
tearing of the victims apparel was not necessary in the
commission of the crime charged. In fact, she did not even state

that her clothes had been torn when Sabadlab had forcibly
undressed her. Verily, details and matters that did not detract from
the commission of the crime did not diminish her credibility.

under Republic Act No. 8353 (The Anti-Rape Act of 1997) is Section
266-D, which adverts to the degree of resistance that the victim
may put up against the rapist, viz:

We hardly need to remind that the task of assigning values to the

testimonies of witnesses and of weighing their credibility is best left
to the trial judge by virtue of the first-hand impressions he derives
while the witnesses testify before him. [13] The demeanor on the
witness chair of persons sworn to tell the truth in judicial
proceedings is a significant element of judicial adjudication because
it can draw the line between fact and fancy. Their forthright
answers or hesitant pauses, their quivering voices or angry tones,
their flustered looks or sincere gazes, their modest blushes or guilty
blanches - all these can reveal if the witnesses are telling the truth
or lying in their teeth.[14] As the final appellate reviewer in this case,
then, we bow to the age-old norm to accord the utmost respect to
the findings and conclusions on the credibility of witnesses reached
by the trial judge on account of his unmatched opportunity to
observe the witnesses and on account of his personal access to the
various indicia available but not reflected in the record. [15]

Article 266-D. Presumptions. - Any physical overt act manifesting

resistance against the act of rape in any degree from the
offended party, or where the offended party is so situated as to
render her/him incapable of giving valid consent, may be accepted
as evidence in the prosecution of the acts punished under Article
266-A.

Secondly, AAAs recollection of the principal occurrence and her

positive identification of the rapists, particularly Sabadlab, were
firm. It is reassuring, too, that her trustworthiness in identifying
Sabadlab as one of the rapists rested on her recognition of him
as the man who had frequently flirted with her at the store where
she had usually bought pandesal for her employers table. As such,
the identification of him as one of the rapists became impervious to
doubt.
Thirdly, AAAs failure to shout for help and her failure to escape
were not factors that should diminish credibility due to their being
plausibly explained, the first by the fact that her mouth had been
stuffed by Sabadlab with crumpled newspaper, preventing her from
making any outcry, and the second by the fact that the culprits had
blindfolded her and had also tied her hands behind her back.
And, lastly, Sabadlabs allegation that AAA did not sustain any
bodily injuries was actually contrary to the medical certification
showing her several physical injuries and the penetration of her
female organ.[16] This should debunk without difficulty his
submission that she did not offer any resistance to the sexual
assaults she suffered. Her resistance to Sabadlabs order for her to
go with him was immediately stifled by his poking of the gun at her
throat and by appearance of his two cohorts. At any rate, it is
notable that among the amendments of the law on rape introduced

We next deal with the characterization of the crime as forcible

abduction with rape. The principal objective of Sabadlab and his
two cohorts in abducting AAA from Dapitan Street and in bringing
her to another place was to rape and ravish her. This objective
became evident from the successive acts of Sabadlab immediately
after she had alighted from the car in completely undressing her as
to expose her whole body (except the eyes due to the blindfold), in
kissing her body from the neck down, and in having carnal
knowledge of her (in that order). Although forcible abduction
was seemingly committed,[17] we cannot hold him guilty of the
complex crime of forcible abduction with rape when the objective of
the abduction was to commit the rape. Under the circumstances,
the
rape
absorbed
the
forcible
abduction. [18]
The penalty of reclusion perpetua was correctly prescribed. Article
266-A and Article 266-B of the Revised Penal Code, as amended by
Republic Act No. 8353,[19]respectively define and punish simple rape
as follows:
Article 266-A. Rape; When and How Committed. Rape is
committed
1) By a man who shall have carnal knowledge of a woman under
any of the circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise
unconscious;
c) By means of fraudulent machinations or grave abuse of
authority;
and
d) When the offended party is under twelve (12) years of age or is
demented, even though none of the circumstances mentioned
above be present.

Article 266-B. Penalties. Rape under paragraph 1 of the next

preceding article shall be punished by reclusion perpetua.
xxx
Although the CA deleted the RTCs award of exemplary damages
because of the absence of aggravating circumstance (sic),[20] we
reinstate the award in view of the attendance of the aggravating
circumstance of use of a deadly weapon in the commission of the
crime. The Civil Code provides that exemplary damages may be
imposed in a criminal case as part of the civil liability when the
crime was committed with one or more aggravating
circumstances.[21] The Civil Code allows such damages to be
awarded by way of example or correction for the public good, in
addition to the moral, temperate, liquidated or compensatory
damages.[22] Present here was the need for exemplarity. Thus, the
CA should have recognized the entitlement to exemplary damages
of AAA on account of the attendance of use of a deadly weapon. It
was of no moment that the use of a deadly weapon was not
specifically alleged in the information. As fittingly explained
in People v. Catubig:[23]
The term aggravating circumstances used by the Civil Code, the
law not having specified otherwise, is to be understood in its broad
or generic sense. The commission of an offense has a two-pronged
effect, one on the public as it breaches the social order and the
other upon the private victim as it causes personal sufferings, each
of which is addressed by, respectively, the prescription of heavier
punishment for the accused and by an award of additional
damages to the victim. The increase of the penalty or a shift to a
graver felony underscores the exacerbation of the offense by the
attendance of aggravating circumstances, whether ordinary or
qualifying, in its commission.Unlike the criminal liability which
is basically a State concern, the award of damages,
however, is likewise, if not primarily, intended for the
offended party who suffers thereby. It would make little
sense for an award of exemplary damages to be due the
private offended party when the aggravating circumstance
is ordinary but to be withheld when it is qualifying. Withal,
the ordinary or qualifying nature of an aggravating
circumstance is a distinction that should only be of
consequence to the criminal, rather than to the civil,
liability of the offender. In fine, relative to the civil aspect
of the case, an aggravating circumstance, whether ordinary
or qualifying, should entitle the offended party to an award

of exemplary damages within the unbridled meaning of

Article 2230 of theCivil Code.
Accordingly, the Court grants the amount of P30,000.00 as
exemplary damages in addition to the civil indemnity of P50,000.00
and the moral damages of P50,000.00 the CA awarded to AAA.
Sabadlab is further liable for interest of 6% per annum on all the
civil damages.
WHEREFORE, we AFFIRM decision of the Court of Appeals
promulgated
on
April
26,
2006,
with
the MODIFICATION that ERLAND SABADLAB y BAYQUEL is:
(a)DECLARED
GUILTY
BEYOND
REASONABLE
DOUBT of SIMPLE RAPE as defined under Article 266-A and as
penalized with reclusion perpetua pursuant to Article 266-B of
the Revised Penal Code, as amended by Republic Act No. 8353; and
(b) ORDERED TO PAY to the victim P50,000.00 as civil indemnity,
P50,000.00 as moral damages, and P30,000.00 as exemplary
damages, plus interest of 6% per annum on each of the amounts
reckoned
from
the
finality
of
this
decision.
The accused shall pay the costs of suit.
SO ORDERED.

G.R. No. L-3215

October 6, 1949

ALONSO BAGTAS Y ALEJANDRO, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.
OZAETA, J.:
This is a petition for habeas corpus based upon the following
facts:
On various dates between February 18 and May 14, 1948,
the petitioner was convicted of estafa in seventeen criminal cases
and sentenced by final judgments of the Court of First Instance of
Manila to an aggregate penalty of 6 years, 4 months, and 26 days
of imprisonment, to indemnify the offended parties invarious sums
aggregating P43,436.45, with subsidiary imprisonment in case of

insolvency in each case, and to pay the costs. The most severe of
the seventeen sentences against the petitioner was 6 months and
1 day of prison correcional plus an indemnify of P8,000, with
subsidiary imprisonment in case of insolvency, and the costs. He
commenced to serve these sentences on February 18, 1948.

upon him. No other penalty to which he may be liable shall

be inflicted after the sum total of those imposed equals the
said maximum period.
Article 100 says that every person criminally liable for a
felony is also civilly liable.

The petitioner contends:

(a) That under section 70 of the Revised Penal Code the
maximum duration of his sentence cannot exceed threefold
the length of time corresponding to the most severe of the
penalties imposed upon him, that is to say, 18 months and 3
days; (b) That the application of the threefold rule does not
preclude his enjoyment of the deduction from his sentenced
of 5 days for each month of good behavior as provided in
paragraph 1 of article 97 of the Revised Penal Code;
(c) That which such deduction his aggregate penalty should
be only 15 months and 3 days, and that therefore he should
have been discharge from custody on June 3, 1949; and
(d) That the subsidiary imprisonment should be eliminated
because article 70 provides that "no other penalty to which
he may be liable shall be inflicted after the sum total of
those imposed equals the said maximum period." 1. We
sustain petitioners contention (a) and (b) above set forth
upon the threefold rule provided in article 70 of the Revised
Penal Code, as amended by section 2 of Commonwealth Act
No. 217, and the decisions of this court in numerous cases.
(People vs. Garalde, 50 Phil., 823; Torres vs. Superintendent
of San Ramon Prison and Penal Farm, 58 Phil., 847, and
cases therein cited.)
2. The important question to decide here is whether the
subsidiary imprisonment should be eliminated from the penalty
imposed upon the petitioner as reduced to thrice the duration of
the gravest penalty imposed on him in accordance with article 70.
The pertinent provisions of said article reads as follows:
Notwithstanding the provisions of the rule next
preceding, the maximum duration of the convict's sentence
shall not be more than threefold the length of time
corresponding to the most severe of the penalties imposed

Article 38 and 39 provide as follows:

ART. 38. Pecuniary LiabilitiesOrder of Payment. In
case the property of the offender should not be sufficient for
the payment of all his pecuniary liabilities, the same shall be
met in the following orders:
1. The reparation of the damage caused.
2. Indemnification of consequential damages.
3. The fine.
4. The costs of the proceedings.
ART. 39. Subsidiary Penalty. If the convict has no
property with which to meet the pecuniary liabilities
mentioned in paragraphs 1st, 2nd, and 3rd of the next
preceding article, he shall be subject to a subsidiary
personal liability at the rate of one day for each 2 pesos and
50 centavos, subject to the following rules:
1. If the principal penalty imposed be prison
correcional or arresto and fine, he shall remain under
confinement until his fine and pecuniary liabilities
referred in the preceding paragraph are satisfied, but
his subsidiary shall not exceed one-third of the term
of the sentence, and in no case shall it continue for
more than one year, and no fraction or part of a day
shall be counted against the prisoner.
2. When the principal penalty imposed be only a fine,
the subsidiary imprisonment shall not exceed six
months, if the culprit shall have been prosecuted for
a grave or less grave felony, and shall not exceed
fifteen days, if for a light felony.lawphi1.nt

3. When the principal penalty imposed is higher

than prison coreccional no subsidiary imprisonment
shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be
executed by confinement in a penal institution, but
such penalty is of fixed duration, the convict, during
the period of time established in the preceding rules,
shall continue to suffer the same deprivations as
those of which the principal penalty consists.
5. The subsidiary personal liability which the convict
may have suffered by reason of his insolvency shall
not relieve him from reparation of the damage
caused,
nor
from
indemnification
for
the
consequential damages in case his financial
circumstances should improve; but be shall be
relieved from pecuniary liability as to the fine.
In the case of People vs. Garalde, supra, the accused was
sentenced in several cases for the crime of estafa thru falsification
of commercial documents, and his aggregate penalty was reduced
to threefold the most severe of the penalties, which was 8 years
and 1 day of prision mayor. The judgment in that case contained
the following proviso: "Provided, however, that in case of
insolvency, by analogy, he is not to suffer subsidiary imprisonment,
since his imprisonment would be in excess of thrice the duration of
the gravest penalty imposed on him."
That judgment is invoked by the petitioner herein in support
of his contention that he should not be made to suffer subsidiary
imprisonment.
It will be noted, however, that in that case the principal
penalty imposed was higher than prision correcional, and therefore
the accused was exempt from subsidiary imprisonment in
accordance with paragraph 3 of article 39 hereinabove quoted.
That, in our opinion, should have been the reason stated by the
court in that case for exempting the accused from subsidiary
imprisonment.
Subsidiary imprisonment forms part of the penalty and its
imposition is required by article 39 in case of insolvency of the
accused to meet the pecuniary liabilities mentioned in the first
three paragraphs of article 38; it cannot be eliminated under article

70 so long as the principal penalty is not higher than 6 years of

imprisonment. The provision of article 70 that no other penalty to
which he may be liable shall be inflicted after the sum total of those
imposed equals the said maximum period, simply means that the
convict shall not severe the excess over the maximum of threefold
the most severe penalty. For instance, if the aggregate of the
principal penalties is six years and that is reduced to two years
under the threefold rule of article 70, he shall not be required to
serve the remaining four years.
In the case of Jose Arlinda vs. Director of Prisons, G. R. No.
47326, this court, by a resolution dated March 18, 1940, held that
the contention of the petitioner that in applying the threefold rule
the court should not have taken into account the indemnity of P498
or its corresponding subsidiary imprisonment was without merit,
"for an indemnity, to all intents and purposes, is considered a
penalty, although pecuniary in character, in Title Three of the
Revised Penal Code, so much so that it is reducible in terms of
imprisonment at the rate of one day for each 2 pesos and 50
centavos should the offender turn out to be insolvent (article 39,
Revised Penal Code); that, moreover, the indemnity which a person
is sentenced to pay forms an integral part of the penalty, it being
expressly provided by article 100 of the Revised Penal Code that
every person criminally liable for a felony is also civilly liable"; that,
finally, article 70 of the Revised Penal Code, as amended by
Commonwealth Act No. 217, in limiting the prisoner's penalty to not
more than threefold the length of the most severe penalty imposed
upon him, makes no distinction between the principal penalty and
subsidiary imprisonment."
We note, however, that in the case just above cited the
highest penalty which formed the basis of the computation under
the threefold rule was 4 years, 2 months, and 1 day of
imprisonment plus an indemnity in terms or subsidiary
imprisonment, namely, 6 months and 19 days, to the principal
penalty of 4 years, 2 months, and 1 day and multiplied the sum by
3, with the result that petitioner's aggregate penalty was fixed at
14 years and 2 months of imprisonment, instead of multiplying the
principal penalty (without the subsidiary imprisonment) by 3, and
requiring the convict to pay the indemnify, for which he should not
have been made to suffer subsidiary imprisonment in case of
insolvency in view of the fact that the aggregate of the principal
penalties as reduced under article 70 exceeded 6 years of
imprisonment to the principal penalty at the outset for the purpose
of applying the threefold rule, because the imposition of subsidiary

imprisonment is conditioned on the insolvency of the convict and

the latter is required to serve it only when he fails or is unable to
pay the indemnity.
We hold that the correct rule is to multiply the highest
principal penalty by 3 and the result will be the aggregate principal
penalty which the prisoner has to serve, plus the payment of all the
indemnities which he has been sentenced to pay, with or without
subsidiary imprisonment depending upon whether or not the
principal penalty exceeds 6 years.
Applying that rule to the instant case, we find that the
maximum duration of the principal penalty which the herein
petitioner has to serve under his conviction in the 17 cases in
question is threefold of 6 months and 1 day, or 18 months and 3
days, it being understood that he shall be required to pay to the
offended parties the indemnities aggregating P43,436.45, with
subsidiary imprisonment in case of insolvency which shall not
exceed one third of the principal penalty. Assuming that the
petitioner will not be able to pay the indemnify, the maximum
duration of his imprisonment shall be 18 months and 1 day of
subsidiary imprisonment, or a total of 2 years and 4 days.
It appearing that the petitioner has not yet served his
sentence as above reduced, even with good conduct time
allowance, the petition is denied, without any finding as to costs.

Thus for humiliating his employees he was accused of multiple

grave oral defamation in five (5) separate Informations instituted
by five (5) of his employees, each Information charging him with
gravely maligning them on four different days, i.e., from 9 to 12
April 1980.
G.R. No. 108747 April 6, 1995
PABLO C. FRANCISCO, petitioner,
vs.
COURT OF APPEALS AND THE HONORABLE MAXIMO C.
CONTRERAS, respondents.
BELLOSILLO, J.:
Probation is a special privilege granted by the state to a penitent
qualified offender. It essentially rejects appeals and encourages an
otherwise eligible convict to immediately admit his liability and
save the state of time, effort and expenses to jettison an appeal.
The law expressly requires that an accused must not have
appealed his conviction before he can avail of probation. This
outlaws the element of speculation on the part of the accused to
wager on the result of his appeal that when his conviction is
finally affirmed on appeal, the moment of truth well-nigh at hand,
and the service of his sentence inevitable, he now applies for
probation as an "escape hatch" thus rendering nugatory the
appellate court's affirmance of his conviction. Consequently,
probation should be availed of at the first opportunity by convicts
who are willing to be reformed and rehabilitated, who manifest
spontaneity, contrition and remorse.
As conceptualized, is petitioner entitled to probation within the
purview of P.D. 968, as amended by P.D. 1257 and P.D. 1990?
Petitioner's woes started when as President and General Manager
of ASPAC Trans. Company he failed to control his outburst and
blurted
You employees in this office are all tanga, son of a
bitches
(sic),
bullshit. Puro
kayo
walang
utak . . . .Mga anak ng puta . . . . Magkano ba kayo . .
. God damn you all.

On 2 January 1990, after nearly ten (10) years, the Metropolitan

Trial Court of Makati, Br. 61, found petitioner guilty of grave oral
defamation in four (4) of the five (5) cases filed against him, i.e.,
Crim. Cases Nos. 105206, 105207, 105209 and 105210, sentenced
him to a prison term of one (1) year and one (l) day to one (1) year
and eight (8) months of prision correccional "in each crime
committed on each date of each case, as alleqed in the
information(s)," ordered him to indemnify each of the offended
parties, Victoria Gatchalian, Rowena Ruiz, Linda Marie Ayala Pigar
and Marie Solis, P10,000.00 as exemplary damages, and P5,000.00
for attorney's fees, plus costs of suit. 1 He was however acquitted in
Crim. Case No. 105208 for persistent failure of the offended party,
Edgar Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on his
innocence, petitioner elevated his case to the Regional Trial Court.
On 5 August 1991 the Regional Trial Court of Makati, Br. 59,
affirmed his conviction but appreciated in his favor a mitigating
circumstance analogous to passion or obfuscation. Thus
. . . (he) was angry and shouting when he uttered the
defamatory words complained of . . . . he must have
been angry and worried "about some missing
documents . . . as well as the letter of the
Department of Tourism advising ASPAC about its
delinquent tax of P1.2 million . . . . " the said
defamatory words must have been uttered in the
heat of anger which is a mitigating circumstance
analogous to passion or obfuscation. 2
Accordingly, petitioner was sentenced "in each case to a STRAIGHT
penalty of EIGHT (8) MONTHS imprisonment . . . . " 3 After he failed
to interpose an appeal therefrom the decision.of the RTC became
final. The case was then set for execution of judgment by the MeTC
which, as a consequence, issued a warrant of arrest. Butbefore he
could be arrested petitioner filed an application for probation which
the MeTC denied "in the light of the ruling of the Supreme Court

in Llamado v. Court of Appeals, G.R. No, 84850, 29 June 1989, 174

SCRA 566 . . . ." 4
Forthwith he went to the Court of Appeals on certiorari which on 2
July 1992 dismissed his petition on the following grounds
Initially, the Court notes that the petitioner has failed
to comply with the provisions of Supreme Court
Circular No. 28-91 of September 4, 1991. Violation of
the circular is sufficient cause for dismissal of the
petition.
Secondly, the petitioner does not allege anywhere in
the petition that he had asked the respondent court
to reconsider its above order; in fact, he had failed to
give the court an.opportunity to correct itself if it
had, in fact, committed any error on the matter. He
is, however, required to move for reconsideration of
the
questioned
order before filing
a
petition
for certiorari (Sy It v. Tiangco, 4 SCRA 436). This
failure is fatal to his cause. It is a ground for
dismissal of his petition (Santos v. Vda. de Cerdenola,
5 SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del
Pilar Transit, Inc. v. Public Service Commission, 31SCRA 372).
Thirdly, it is obvious that respondent
commit any capricious, arbitrary,
whimsical exercise of power in
petitioner's application for probation . .

court did not

despotic or
denying the
..

Fourthly, the petition for probation was filed by the

petitioner out of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the trial
court to grant probation after conviction, upon an application by
the defendant within the period of appeal, upon terms and
conditions and period appropriate to each case, but expressly rules
out probation where an appeal has been taken . . . . 5
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground and
seeks this Court's compassion in dispensing with the minor

technicalities which may militate against his petition as he now

argues before us that he has not yet lost his right to avail of
probation notwithstanding his appeal from the MeTC to the RTC
since "[t]he reason for his appeal was precisely to enable him to
avail himself of the benefits of the Probation Law because the
original Decision of the (Metropolitan) Trial Court was such that he
would not then be entitled to probation." 6 He contends that "he
appealed from the judgment of the trial court precisely for the
purpose of reducing the penalties imposed upon him by the said
court to enable him to qualify for probation." 7
The central issue therefore is whether petitioneris still qualified to
avail of probation even after appealing his conviction to the RTC
which affirmed the MeTC except with regard to the duration of the
penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 8 Its benefits cannot
extend to those not expressly included. Probation is not a right of
an accused, but rather an act of grace and clemency or immunity
conferred by the state which may be granted by the court to a
seemingly deserving defendant who thereby escapes the extreme
rigors of the penalty imposed by law for the offense of which he
stands convicted. 9 It is a special prerogative granted by law to a
person or group of persons not enjoyed by others or by all.
Accordingly, the grant of probation rests solely upon the discretion
of the court which is to be exercised primarily for the benefit of
organized society, and only incidentally for the benefit of the
accused. 10 The Probation Law should not therefore be permitted to
divest the state or its government of any of the latter's
prerogatives, rights or remedies, unless the intention of the
legislature to this end is clearly expressed, and no person should
benefit from the terms of the law who is not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly
mandates that "no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the
judgment of conviction," nor Llamado v. Court of Appeals 11 which
interprets the quoted provision, offers any ambiguity or
qualification. As such, the application of the law should not be
subjected to any to suit the case of petitioner. While the proposition
that an appeal should not bar the accused from applying for
probation if the appealis solely to reduce the penalty to within the
probationable limit may be equitable, we are not yet prepared to

accept this interpretation under existing law and jurisprudence.

Accordingly, we quote Mr. Justice Feliciano speaking for the
Court en banc in Llamado v. Court of Appeals
. . . we note at the outset that Probation Law is not a
penal statute. We, however, understand petitioner's
argument to be really that any statutory language
that appears to favor the accused in acriminal case
should be given.a "liberal interpretation." Courts . . .
have no authority to invoke "liberal interpretation" or
"the spirit of the law" where the words of the statute
themselves, andas illuminated by the history of that
statute, leave no room for doubt or interpretation.
We do not believe that "the spirit ofthe law" may
legitimately be invoked to set at naught words which
have a clear and definite meaning imparted to them
by our procedural law. The "true legislative intent"
must obviously be given effect by judges and all
others who are charged with the application and
implementation of a statute. It is absolutely essential
to bear in mind, however, that the spirit of the law
and the intent that is to be given effect are derived
from the words actually used by the law-maker, and
not from some external, mystical or metajuridical
source independent of and transcending the words of
the legislature.
The Court is not here to be understood as giving a
"strict interpretation" rather than a "liberal" one to
Section 4 of the Probation Law of 1976 as amended
by P.D. No. 1990. "Strict" and "liberal" are adjectives
which too frequently impede a disciplined and
principled search for the meaning which the lawmaking authority projected when it promulgated the
language which we must apply. That meaning is
clearly visible in the text of Section 4, as plain and
unmistakable as the nose on a man's face. The
Courtis simplyreading Section 4 as it is in fact
written. There is no need for the involved process of
construction that petitioner invites us to engage in, a
process made necessary only because petitioner
rejects the conclusion or meaning which shines
through the words of the statute. The first duty of the
judge is to take and apply a statute as he finds it, not
as he would likeit to be. Otherwise, as this Court

in Yangco v. Court of First Instance warned, confusion

and uncertainty will surely follow, making, we might
add, stability and continuity in the law much more
difficult to achieve:
. . . [w]here language is plain, subtle
refinements which tinge words as to
give them the color of a particular
judicial
theory
are
not
only
unnecessary but decidedly harmful.
That which has caused so much
confusion in the law, which has made
it so difficult for the public to
understand and know what the law is
with respect to a given matter, is in
considerable measure the unwarranted
interference by judicial tribunals with
the English language as found in
statutes and contracts, cutting the
words here and inserting them there,
making them fit personal ideas of what
the legislature ought to have done or
what parties should have agreed upon,
giving them meanings which they do
not ordinarily have cutting, trimming,
fitting, changing and coloring until
lawyers themselves are unable to
advise their clients as to the meaning
of a given statute or contract until it
has been submitted to some court for
its interpretation and construction.
The point in this warning may be expected to
become sharper as our people's grasp of English is
steadily attenuated. 12
Therefore, that an appeal should notbar the accused from applying
for probation if the appeal is taken solely to reduce the penalty is
simply contrary to the clear and express mandate of Sec, 4 of the
Probation Law, as amended, which opens with a negativeclause,
"no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of
conviction." In Bersabal v. Salvador, 13 we said

By its very language, the Rule is mandatory. Under

the rule of statutory construction. negative words
and phrases are to be regarded as mandatory while
those in the affirmative are merely directory. . . . the
use of the term "shall" further emphasizes its
mandatory character and means that it is imperative,
operating to impose a duty which may be enforced.
And where the law does not distinguish the courts should not
distinguish; where the law does not make exception the court
should not except.

doing but because of the gravity and serious consequences of the

offense they might further commit. 14 The Probation Law, as
amended, disqualifies only those who have been convicted of grave
felonies as defined in Art. 9 in relation to Art. 25 of The Revised
Penal Code, 15 and not necessarily those who have been convicted
of multiple offenses in a single proceeding who are deemed to be
less perverse. Hence, the basis of the disqualification is principally
the gravity of the offense committed and the concomitant degree
of penalty imposed. Those sentenced to a maximum term not
exceeding six (6) years are not generally considered callous, hard
core criminals, and thus may avail of probation.

Second. At the outset, the penalties imposed by the MeTC were

already probationable. Hence, there was no need to appeal if only
to reduce the penalties to within the probationable period. Multiple
prison terms imposed against an accused found guilty of several
offenses in one decision are not, and should not be, added up. And,
the sum of the multiple prison terms imposed against an applicant
should not be determinative of his eligibility for, nay his
disqualification from, probation. The multiple prison terms are
distinct from each other, and if none of the terms exceeds the limit
set out in the Probation Law,i.e., not more than six (6) years, then
he is entitled to probation, unless he is otherwise specifically
disqualified. The number of offenses is immaterial as long as all the
penalties imposed, taken separately, are within the probationable
period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the
word maximum not total when it says that "[t]he benefits of this
Decree shall not be extended to those . . . . sentenced to serve
a maximum term of imprisonment of more than six years."
Evidently, the law does not intend to sum up the penalties imposed
but to take each penalty separately and distinctly with the others.
Consequently, even if petitioner was supposed to have served his
prison term of one (1) year and one (1) day to one (1) year and
eight (8) months of prision correccional sixteen (16) times as he
was sentenced to serve the prison term for "each crime committed
on each date of each case, as alleged in the information(s)," and in
each of the four (4) informations, he was charged with.having
defamed the four (4) private complainants on four (4) different,
separate days, he was stilleligible for probation, as each prison
term imposed on petitioner was probationable.

To demonstrate the point, let ustake for instance one who is

convicted in a single decision of, say, thirteen (13) counts of grave
oral defamation (for having defamed thirteen [13] individuals in
one outburst) and sentenced to atotal prison term of thirteen (13)
years, and another who has been found guilty of mutilation and
sentenced to six (6) years and one (l) day of prision
mayor minimum as minimum to twelve (l2) years and one (1) day
of reclusion temporal minimum as maximuin. Obviously, the latter
offender is more perverse and is disqualified from availing of
probation.

Fixing the cut-off point at a maximum term of six (6) years

imprisonment for probation is based on the assumption that those
sentenced to higher penalties pose too great a risk to society, not
just because of their demonstrated capability for serious wrong

The assertion that the Decision of the RTC should be multiplied only
four (4) times since there are only four (4) Informations thereby
allowing petitioner to qualify for probation, instead of sixteen (16)
times, is quite difficult to understand. The penalties imposed by the

Petitioner thus proceeds on an erroneous assumption that under

the MeTC Decision he could not have availed of the benefits of
probation. Since he could have, although he did not, his appeal now
precludes him from applying for probation.
And, even if we go along with the premise of petitioner, however
erroneous it may be, that the penalties imposed against him should
be summed up, still he would not have qualified under the Decision
rendered by the RTC since if the "STRAIGHT penalty of EIGHT (8)
MONTHS imprisonment" imposed by the RTC is multiplied sixteen
(16) times, the total imposable penalty would be ten (10) years and
eight (8) months, which is still way beyond the limit of not more
than six (6) years provided for in the Probation Law, as amended.
To illustrate: 8 months multiplied by 16 cases = 128 months; 128
months divided by 12 months (in a year) = 10 years and 8 months,
hence, following his argument, petitioner cannot still be eligible for
probation as the total of his penalties exceeds six (6) years.

MeTC cannot be any clearer "one (1) year and one (1) day to one
(1) year and eight (8) months of prision correccional, in each crime
committed on each date of each case, as alleged in the
information(s). "Hence, petitioner should suffer the imposed
penalties sixteen (16) times. On the other hand, the RTC affirmed,
the judgment of conviction and merely reduced the duration of
each penalty imposed by the MeTC "in each case to a STRAIGHT
penalty of EIGHT (8) MONTHS imprisonment" on account of a
mitigating circumstance for each case, count or incident of grave
oral defamationThere is no valid reason therefore why the
penalties imposed by the RTC should be multiplied only four (4)
times, and not sixteen (16) times, considering that the RTC
merely affirmed the MeTC as regards the culpability of petitioner in
each of the sixteen (16) cases and reducing only the duration of
the penalties imposed therein. Thus
Premises considered, the judgment of conviction
rendered by the trial court is AFFIRMED with
modification, as follows:
WHEREFORE, the Court hereby finds the accused
Pablo C. Francisco GUILTY beyond reasonable doubt
in each of the above entitled cases and appreciating
in his favor the mitigating circumstance which is
analogous to passion or obfuscation, the Court
hereby sentences the said accused in each case to a
straight penalty of EIGHT (8) MONTHS imprisonment,
with the accessory penalties prescribed by law; and
to pay the costs. 16
Nowhere in the RTC Decision is it stated or even hinted at that the
accused was acquitted or absolved in any of the four (4) counts
under each of the four (4) Informatfons, or that any part of
thejudgment of conviction was reversed, or that any of the cases,
counts or incidents was dismissed. Otherwise, we will have to
account for the twelve (12) other penalties imposed by the MeTC.
Can we? What is clear is that the judgment of conviction rendered
by the was affirmed with the sole modification on the duration of
the penalties.
In fine, considering that the multiple prison terms should not be
summed up but taken separately as the totality of all the penalties
is not the test, petitioner should have immediately filed an
application for probation as he was already qualified after being
convicted by the MeTC, if indeed thereafter he felt humbled, was

ready to unconditionally accept the verdict of the court and admit

his liability. Consequently, in appealing the Decision of the MeTC to
the RTC, petitioner lost his right to probation. For, plainly, the law
considers appeal and probation mutually exclusive remedies. 17
Third. Petitioner appealed to the RTC not to reduce or even correct
the penalties imposed by the MeTC, but to assert his innocence.
Nothing more. The cold fact is that petitioner appealed his
conviction to the RTC not for the sole purpose of reducing his
penalties to make him eligible for probation since he was already
qualified under the MeTC Decision but rather to insist on his
innocence. The appeal record is wanting of any other purpose.
Thus, in his Memorandum before the RTC, he raised only three (3)
statements of error purportedly committed by the MeTC all aimed
at his acquittal: (a) in finding that the guilt of the accused has been
established because of his positive identification by the witness for
the prosecution; (b) in giving full faith and credence to the bare
statements of the private complainants despite the absence of
corroborating testimonies; and, (c)in not acquitting him in all the
cases," 18 Consequently, petitioner insisted that the trial court
committed an error in relying on his positive identification
considering that private complainants could not have missed
identifying him who was their President and General Manager with
whom they worked for a good number of years. Petitioner further
argued that although the alleged defamatory words were uttered in
the presence of other persons, mostly private complainants, coemployees and clients, not one of them was presented as a
witness. Hence, according to petitioner, the trial court could not
have convicted him on the basis of the uncorroborative testimony
of private complainants. 19
Certainly, the protestations of petitioner connote profession of
guiltlessness, if not complete innocence, and do not simply put in
issue the propriety of the penalties imposed. For sure, the accused
never manifested that he was appealing only for the purpose of
correcting a wrong penalty to reduce it to within the
probationable range. Hence, upon interposing an appeal, more so
after asserting his innocence therein, petitioner should be
precluded from seeking probation. By perfecting his appeal,
petitioner ipso facto relinquished his alternative remedy of availing
of the Probation Law the purpose of which is simply to prevent
speculation or opportunism on the part of an accused who although
already eligible does not at once apply for probation, but doing so
only after failing in his appeal.

The fact that petitioner did not elevate the affirmance of his
conviction by the RTC to the Court of Appeals does not necessarily
mean that his appeal to the RTC was solely to reduce his penalties.
Conversely, he was afraid that the Court of Appeals would increase
his penalties, which could be worse for him. Besides, the RTC
Decision had already become final and executory because of the
negligence, according to him, of his former counsel who failed to
seek possible remedies within the period allowed by law.

petitioner's plea for probation was filed out of time.

In the petition is a clear statement that the petitioner
was up for execution of judgment before he filed his
application for probation. P.D. No. 968 says that the
application for probation must be filed "within the
period for perfecting an appeal;" but in this case,
such period for appeal had passed, meaning to say
that the Regional Trial Court's decision had attained
finality, and no appeal therefrom was possible under
the law. Even granting that an appeal from
the appellate court's judgment is contemplated by
P.D. 968, in addition to the judgment rendered by the
trial court, that appellate judgment had become final
and was, in fact, up for actual execution before the
application for probation was attempted by the
petitioner. The petitioner did not file his application
for probation before the finality of the said judgment;
therefore, the petitioner's attempt at probation was
filed too late.

Perhaps it should be mentioned that at the outset petitioner, in

accordance with Sec 3, par. (e), Rule 117 of the Rules of
Court, 20 should have moved to quash as each of the four (4)
Informations filed against him charged four (4) separate crimes of
grave oral defamation, committed on four (4) separate days. His
failure to do so however may now be deemed a waiver under Sec. 8
of the same Rule 21 and he can be validly convicted, as in the
instant case, of as many crimes charged in the Information.
Fourth. The application for probation was filed way beyond the
period allowed by law. This is vital way beyond the period allowed
by law and crucial. From the records it is clear that the application
for probation was filed "only after a warrant for the arrest of
petitioner had been issued . . . (and) almost two months after (his)
receipt of the Decision" 22 of the RTC. This is a significant fact which
militates against the instant petition. We quote with affirmance the
well-written, albeit assailed, ponencia of now Presiding Justice of
the Court of Appeals Nathanael P. De Pano, Jr., on the specific issue

. . . the petition for probation was filed by the

petitioner out of time. The law in point, Section 4 of
P.D. 968, as amended, provides thus:
Sec. 4. Grant of Probation. Subject
to the provisions of this Decree, the
trial court may, after it shall have
convicted and sentenced a defendant,
and
upon
application
by
said
defendant within the period for
perfecting an appeal. . . . place the
defendant on probation . . . .
Going to the extreme, and assuming that an
application for probation from one who had appealed
the trial court's judgment is allowed by law, the

Our minds cannot simply rest easy on. the proposition that an
application for probation may yet be granted even if it was filed
only after judgment has become final, the conviction already set for
execution and a warrant of arrest issued for service of sentence.
The argument that petitioner had to await the remand of the case
to the MeTC, which necessarily must be after the decision of the
RTC had become final, for him to file the application for probation
with the trial court, is to stretch the law beyond comprehension.
The law, simply, does not allow probation after an appeal has been
perfected.
Accordingly, considering that prevailing jurisprudence treats appeal
and probation as mutually exclusive remedies, and petitioner
appealed from his conviction by the MeTC although the imposed
penalties were already probationable, and in his appeal, he
asserted only his innocence and did not even raise the issue of the
propriety of the penalties imposed on him, and finally, he filed an
application for probation outside the period for perfecting an appeal
granting he was otherwise eligible for probation, the instant
petition for review should be as it is hereby DENIED.
SO ORDERED.

G.R. No. 168641

April 27, 2007

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
CLEMENTE BAUTISTA, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Review on Certiorari filed by the People of
the Philippines assailing the Decision1 of the Court of Appeals (CA)
dated June 22, 2005 in CA-G.R. SP No. 72784, reversing the Order
of the Regional Trial Court (RTC), Branch 19, Manila and dismissing

the criminal case for slight physical injuries against respondent on

the ground that the offense charged had already prescribed.
The undisputed facts are as follows.
On June 12, 1999, a dispute arose between respondent and his coaccused Leonida Bautista, on one hand, and private complainant
Felipe Goyena, Jr., on the other.
Private complainant filed a Complaint with the Office of
the Barangay of Malate, Manila, but no settlement was reached.
The barangay chairman then issued a Certification to file action
dated August 11, 1999.2
On August 16, 1999, private complainant filed with the Office of the
City Prosecutor (OCP) a Complaint for slight physical injuries
against herein respondent and his co-accused. After conducting the
preliminary investigation, Prosecutor Jessica Junsay-Ong issued a
Joint Resolution dated November 8, 1999 recommending the filing
of an Information against herein respondent. Such recommendation
was approved by the City Prosecutor, represented by First Assistant
City Prosecutor Eufrocino A. Sulla, but the date of such approval
cannot be found in the records. The Information was, however, filed
with the Metropolitan Trial Court (MeTC) of Manila, Branch 28 only
on June 20, 2000.
Respondent sought the dismissal of the case against him on the
ground that by the time the Information was filed, the 60-day
period of prescription from the date of the commission of the crime,
that is, on June 12, 1999 had already elapsed. The MeTC ruled that
the offense had not yet prescribed.
Respondent elevated the issue to the RTC via a Petition
for Certiorari, but the RTC denied said petition and concurred with
the opinion of the MeTC.
Respondent then filed a Petition for Certiorari with the CA. On June
22, 2005, the CA rendered its Decision wherein it held that, indeed,
the 60-day prescriptive period was interrupted when the offended
party filed a Complaint with the OCP of Manila on August 16, 1999.
Nevertheless, the CA concluded that the offense had prescribed by
the time the Information was filed with the MeTC, reasoning as
follows:

In the case on hand, although the approval of the Joint Resolution of

ACP Junsay-Ong bears no date, it effectively terminated the
proceedings at the OCP. Hence, even if the 10-day period for the CP
or ACP Sulla, his designated alter ego, to act on the resolution is
extended up to the utmost limit, it ought not have been taken as
late as the last day of the year 1999. Yet, the information was filed
with the MeTC only on June 20, 2000, or already nearly six (6)
months into the next year. To use once again the language of
Article 91 of the RPC, the proceedings at the CPO was
"unjustifiably stopped for any reason not imputable to him
(the accused)" for a time very much more than the
prescriptive period of only two (2) months. The offense
charged had, therefore, already prescribed when filed with the
court on June 20, 2000. x x x3 (Emphasis supplied)
The dispositive portion of the assailed CA Decision reads as follows:
WHEREFORE, we hereby REVERSE and SET ASIDE the appealed
Orders of both courts below and Criminal Case No. 344030-CR,
entitled: "People of the Philippines, Plaintiff, -versus- Clemente
Bautista and Leonida Bautista, Accused," is ordered DISMISSED.
Costs de oficio.
SO ORDERED.4
Petitioner now comes before this Court seeking the reversal of the
foregoing CA Decision. The Court gives due course to the petition
notwithstanding the fact that petitioner did not file a Motion for
Reconsideration of the decision of the CA before the filing of herein
petition. It is not a condition sine qua non for the filing of a petition
for review under Rule 45 of the Rules of Court. 5
The Court finds merit in the petition.
It is not disputed that the filing of the Complaint with the OCP
effectively interrupted the running of the 60-day prescriptive period
for instituting the criminal action for slight physical injuries.
However, the sole issue for resolution in this case is whether the
prescriptive period began to run anew after the investigating
prosecutors recommendation to file the proper criminal
information against respondent was approved by the City
Prosecutor.
The answer is in the negative.

Article 91 of the Revised Penal Code provides thus:

Art. 91. Computation of prescription of offenses. - The period of
prescription shall commence to run from the day on which the
crime is discovered by the offended party, the authorities, or their
agents, and shall be interrupted by the filing of the complaint or
information, and shall commence to run again when such
proceedings terminate without the accused being convicted
or acquitted, or are unjustifiably stopped for any reason not
imputable to him.
The term of prescription shall not run when the offender is absent
from the Philipppine Archipelago. (Emphasis supplied)
The CA and respondent are of the view that upon approval of the
investigating prosecutor's recommendation for the filing of an
information against respondent, the period of prescription began to
run again. The Court does not agree. It is a well-settled rule that
the filing of the complaint with the fiscals office suspends the
running of the prescriptive period.6
The proceedings against respondent was not terminated upon the
City Prosecutor's approval of the investigating prosecutor's
recommendation that an information be filed with the court. The
prescriptive period remains tolled from the time the complaint was
filed with the Office of the Prosecutor until such time that
respondent is either convicted or acquitted by the proper court.
The Office of the Prosecutor miserably incurred some delay in filing
the information but such mistake or negligence should not unduly
prejudice the interests of the State and the offended party. As held
in People v. Olarte,7 it is unjust to deprive the injured party of the
right to obtain vindication on account of delays that are not under
his control. All that the victim of the offense may do on his part to
initiate the prosecution is to file the requisite complaint. 8
The constitutional right of the accused to a speedy trial cannot be
invoked by the petitioner in the present petition considering that
the delay occurred not in the conduct of preliminary investigation
or trial in court but in the filing of the Information after the City
Prosecutor had approved the recommendation of the investigating
prosecutor to file the information.

The Office of the Solicitor General does not offer any explanation as
to the delay in the filing of the information. The Court will not be
made as an unwitting tool in the deprivation of the right of the
offended party to vindicate a wrong purportedly inflicted on him by
the mere expediency of a prosecutor not filing the proper
information in due time.
The Court will not tolerate the prosecutors apparent lack of a sense
of urgency in fulfilling their mandate. Under the circumstances, the
more appropriate course of action should be the filing of an
administrative disciplinary action against the erring public officials.
WHEREFORE, the Petition is hereby GRANTED. The Decision of
the Court of Appeals in CA-G.R. SP No. 72784 is
hereby REVERSED and SET ASIDE and the Decision of the
Regional Trial Court of Manila in Civil Case No. 02-103990 is
hereby REINSTATED.
Let the Secretary of the Department of Justice be furnished a copy
of herein Decision for appropriate action against the erring officials.
SO ORDERED.

directing the recording of the decision in the criminal docket of the

court and an order of arrest against the petitioner.2

G.R. No. 141718

January 21, 2005

BENJAMIN PANGAN y RIVERA, petitioner,

vs.
HON. LOURDES F. GATBALITE, as the Presiding Judge,
Regional Trial Court of Angeles City, Branch 56, and COL.
JAMES D. LABORDO, as the City Jail Warden of Angeles
City, respondents.
DECISION
AZCUNA, J.:
Before the Court is a petition for review on certiorari under Rule 45
of the 1997 Rules of Civil Procedure, assailing the decision of the
Regional Trial Court of Angeles City, Branch 56, rendered on January
31, 2000.1
The facts of this case are undisputed. The petitioner was indicted
for simple seduction in Criminal Case No. 85-816, at the Municipal
Trial Court of Angeles City, Branch 3.
During the trial of the case, Atty. Eduardo Pineda, counsel for
petitioner, submitted the case for decision without offering any
evidence, due to the petitioners constant absence at hearings.
On September 16, 1987, the petitioner was convicted of the offense
charged and was sentenced to serve a penalty of two months and
one day of arresto mayor.

Pursuant to the order of arrest, on January 20, 2000, the petitioner

was apprehended and detained at the Mabalacat Detention Cell. On
January 24, 2000, petitioner filed a Petition for a Writ of Habeas
Corpus at the Regional Trial Court of Angeles City. He impleaded as
respondent
the
Acting
Chief
of
Police
of
Mabalacat,
Pampanga.3 Petitioner contended that his arrest was illegal and
unjustified on the grounds that:
(a) the straight penalty of two months and one day of
arresto mayor prescribes in five years under No. 3, Article 93
[of the] Revised Penal Code, and
(b) having been able to continuously evade service of
sentence for almost nine years, his criminal liability has long
been totally extinguished under No. 6, Article 89 [of the]
Revised Penal Code.4
After his transfer to the City Jail of Angeles City on January 25,
2000, petitioner filed an Amended Petition with the Regional Trial
Court, impleading herein respondent Col. James D. Labordo, the Jail
Warden of Angeles City, as respondent.5
In response, the Jail Warden alleged that petitioners detention was
pursuant to the order of commitment (mittimus), issued by Marlon
P. Roque, Clerk of Court III of the Municipal Trial Court of Angeles
City, Branch 3, dated January 25, 2000.6
On January 31, 2000, respondent Judge rendered the decision,
which is the subject of this present appeal, which pronounced:

On appeal, the Regional Trial Court, on October 24, 1988,

affirmed in toto the decision of the Municipal Trial Court.

The Court cannot subscribe to the contention of the petitioner that

the penalty imposed on him in the decision adverted to above had
already prescribed, hence, his detention is illegal for under Article
93 of the Revised Penal Code:

On August 9, 1991, the case was called for promulgation of the

decision in the court of origin. Despite due notice, counsel for the
petitioner did not appear. Notice to petitioner was returned
unserved with the notation that he no longer resided at the given
address. As a consequence, he also failed to appear at the
scheduled promulgation. The court of origin issued an order

"The period of prescription of penalties shall commence to run from

the date when the culprit should evade the service of sentence,
and it shall be interrupted if the defendant should give himself up,
be captured, should go to some foreign country with which this
Government has no extradition treaty, or should commit another
crime before the expiration of the period of prescription.

The elements of prescription are:

SO ORDERED.

1. That the penalty is imposed by final judgment;

Angeles City, January 31, 2000.7

2. That convict evaded the service of the sentence by

escaping during the term of his sentence;

From the above quoted decision, petitioner filed the instant petition
for review on a question purely of law and raised the following
issue:

3. That the convict who had escaped from prison has not
given himself up, or been captured, or gone to a foreign
country with which we have no extradition treaty, or
committed another crime;
4. The penalty has prescribed, because of the lapse of time
from the date of the evasion of the service of the sentence
by the convict.

HOW SHOULD THE PHRASE "SHALL COMMENCE TO RUN FROM THE

DATE WHEN THE CULPRIT SHOULD EVADE THE SERVICE OF
SENTENCE" IN ARTICLE 93 OF THE REVISED PENAL CODE ON THE
COMPUTATION OF THE PRESCRIPTION OF PENALTIES BE
CONSTRUED? PUT A LITTLE DIFFERENTLY, WHEN DOES THE
PRESCRIPTIVE PERIOD OF PENALTIES BEGIN TO RUN?8
Petitioner claims that:

In this case, the essential element of prescription which is the

evasion of the service of sentence is absent. Admittedly, the
petitioner herein has not served the penalty imposed on him in
prison and that during the service of the sentence, he escaped
therefrom. Notably, at the trial of Crim. Case No. 85-816 in the
Municipal Trial Court, Branch III, Angeles City and on the date set
for the promulgation of the affirmed decision, the petitioner failed
to appear and remained at large.1a\^/phi1.net
"There was no evasion of the service of the sentence in this case,
because such evasion presupposes escaping during the service of
the sentence consisting in deprivation of liberty." (Infante vs.
Warden, 48 O.G. No. 122) (92 Phil. 310).
Corollarily, the detention of the petitioner in Angeles City Jail in
compliance with the Order of Commitment (Exhibit E) is not illegal
for
"A commitment in due form, based on a final judgment, convicting
and sentencing the defendant in a criminal case, is conclusive
evidence of the legality of his detention, unless it appears that the
court which pronounced the judgment was without jurisdiction or
exceeded it." (U.S. vs. Jayne, 24 Phil 90, 24 J.F. 94, Phil. Digest, Vol.
2, 1398).
WHEREFORE, for not being meritorious and well-founded, the
petition for a writ of habeas corpus is hereby denied.

xxx the period for the computation of penalties under Article 93 of

the Revised Penal Code begins to run from the moment the
judgment of conviction becomes final and the convict successfully
evades, eludes, and dodges arrest for him to serve sentence. 9
Petitioner supports his claim in the following manner:
The Decision subject of this appeal, which was based on the 1952
ruling rendered in Infante vs. Warden, 48 O.G. No. 122, 92 Phil. 310,
is, petitioner most respectfully submits, not good case law. It
imposes upon the convict a condition not stated in the law. It is
contrary to the spirit, nature or essence of prescription of penalties,
creates an ambiguity in the law and opens the law to abuse by
government.
THE INFANTE
RULING IMPOSES
CONDITION NOT STATED IN THE LAW.

It appears that the Infante ruling imposes that, as an essential

element, the convict must serve at least a few seconds, minutes,
days, weeks or years of his jail sentence and then escapes before
the computation of prescription of penalties begins to run. This,
petitioner respectfully submits is not a condition stated in Article
93, which states that, the prescription of penalties "shall
commence to run from the date when the culprit should evade the
service of sentence."

There is no dispute that the duty of government to compel the

service of sentence sets in when the judgment of conviction
becomes final.
The dispute, however, is in the construction of the phrase "should
evade the service of sentence." When does the period of
prescription of penalties begin to run? The Infante ruling construes
this to mean that the convict must escape from jail "because such
evasion presupposes escaping during the service of the sentence
consisting in deprivation of liberty."
Petitioner, with due respect, disagrees because if that were the
intention of the law, then the phrase "should evade the service of
sentence" in Article 93 would have read: "should escape during the
service of the sentence consisting in deprivation of liberty." The
legislature could have very easily written Article 93 to read this way

"The period of prescription of penalties shall commence to run from

the date when the culprit should escape during the service of
the sentence consisting in deprivation of liberty, and it shall
be interrupted if the defendant should give himself up, be captured,
should go to some foreign country with which this Government has
no extradition treaty, or should commit another crime before the
expiration of the period of prescription."
But they did not.
The legislature wrote "should evade the service of sentence" to
cover or include convicts like him who, although convicted by final
judgment, were never arrested or apprehended by government for
the service of their sentence. With all the powers of government at
its disposal, petitioner was able to successfully evade service of his
2 months and 1 day jail sentence for at least nine (9) years, from
August 9, 1991 to January 20, 2000. This is approximately 3 years
and 5 months longer than the 5-year prescriptive period of the
penalty imposed on him.
That, as the respondent RTC Judge noted, petitioner did not attend
the trial at the Municipal Trial Court and the promulgation of his
judgment of conviction in August 9, 1991 is of no moment. His
bond for provisional release was surely cancelled and an order of
arrest was surely issued against petitioner. The undisputed fact is
that on August 9, 1991 the judgment of conviction was

promulgated in absentia and an order for petitioners arrest was

issued by the Municipal Trial Court of Angeles City, Branch III.
The duty of government, therefore, to arrest petitioner and compel
him to serve his sentence began on August 9, 1991. The 5-year
prescriptive period of his arresto mayor penalty also began to run
on that day considering that no relief was taken therefrom. Since
petitioner never gave himself up [n]or was [he], until January 20,
2000, ever captured, for the service of his sentence nor did he flee
to some foreign country with which [our] government has no
extradition treaty, that 5-year prescriptive period of his penalty ran
continuously from August 9, 1991 when his judgment of conviction
was promulgated in absentia and was never interrupted.
For reasons known only to it, however, government failed or
neglected, for almost nine (9) years, to arrest petitioner for the
service of his arresto mayor sentence [which] should not be taken
against petitioner. He was able to successfully evade service of his
sentence for a period longer than the 5-year prescriptive period of
his penalty and, as such, is entitled to total extinction of his
criminal liability.
To say, as was said in Infante, that the prescriptive period of the
penalty never began to run in favor of petitioner because he never
escaped from jail during the service of his sentence imposes a
condition not written in the law. It also violates the basic principle
that the criminal statutes are construed liberally in favor of the
accused and/or convict and is contrary to the spirit behind or
essence of statutes of limitations [and] prescription, in criminal
cases.10
The Regional Trial Court based its decision on the case of Infante v.
Warden11 . In said case, Infante, the petitioner, was convicted of
murder and was sentenced to seventeen years, four months and
one day of reclusion temporal. After serving fifteen years, seven
months and eleven days, he was granted a conditional pardon. The
condition was that "he shall not again violate any of the penal laws
of the Philippines." Ten years after his release on conditional
pardon, Infante was found guilty by a Municipal Court for driving
without a license. Infante was immediately ordered rearrested for
breach of the condition of his pardon. One of the issues raised by
Infante in his petition,
xxx was that the remitted penalty for which the petitioner had been
recommitted to jail one year and 11 days had prescribed. xxx 12

The Court disagreed and reasoned out thus:

The contention is not well taken. According to article 93 of the
Revised Penal Code the period of prescription of penalties
commences to run from the date when the culprit should evade the
service of his sentence. It is evident from this provision that
evasion of the sentence is an essential element of prescription.
There has been no such evasion in this case. Even if there had been
one and prescription were to be applied, its basis would have to be
the evasion of the unserved sentence, and computation could not
have started earlier than the date of the order for the prisoner's
rearrest.13
A perusal of the facts in Infante v. Warden reveals that it is not on
all fours with the present case. In Infante, the convict was on
conditional pardon when he was re-arrested. Hence, he had started
serving sentence but the State released him. In the present case,
the convict evaded service of sentence from the start, and was
arrested eight years later.

escaping during the term of his imprisonment by reason of final

judgment. xxx"
Elements of evasion of service of sentence are: (1) the offender is a
convict by final judgment; (2) he "is serving his sentence which
consists in deprivation of liberty"; and (3) he evades service of
sentence by escaping during the term of his sentence. This must be
so. For, by the express terms of the statute, a convict evades
"service of his sentence" by "escaping during the term of his
imprisonment by reason of final judgment." That escape should
take place while serving sentence, is emphasized by the provisions
of the second sentence of Article 157 which provides for a higher
penalty if such "evasion or escape shall have taken place by means
of unlawful entry, by breaking doors, windows, gates, walls, roofs,
or floors, or by using picklocks, false keys, disguise, deceit, violence
or intimidation, or through connivance with other convicts or
employees of the penal institution, . . ." Indeed, evasion of
sentence is but another expression of the term "jail breaking."
xxx

The RTC decision, however, must stand, since it is in accord with

applicable decisions of this Court. The issue raised by petitioner is
not novel. Article 93 of the Revised Penal Code 14 has been
interpreted several times by the Court.
The case of Tanega v. Masakayan15 falls squarely within the issues
of the present case. In that case, petitioner Adelaida Tanega failed
to
appear
on
the
day
of
the
execution
of
her
sentence.1awphi1.nt On the same day, respondent judge issued a
warrant for her arrest. She was never arrested. More than a year
later, petitioner through counsel moved to quash the warrant of
arrest, on the ground that the penalty had prescribed. Petitioner
claimed that she was convicted for a light offense and since light
offenses prescribe in one year, her penalty had already prescribed.
The Court disagreed, thus:
xxx The period of prescription of penalties the succeeding Article
93 provides "shall commence to run from the date when the
culprit should evade the service of his sentence". What then is the
concept of evasion of service of sentence? Article 157 of the
Revised Penal Code furnishes the ready answer. Says Article 157:
"ART. 157. Evasion of service of sentence. The penalty of prision
correccional in its medium and maximum periods shall be imposed
upon any convict who shall evade service of his sentence by

We, therefore, rule that for prescription of penalty of imprisonment

imposed by final sentence to commence to run, the culprit should
escape during the term of such imprisonment.
Adverting to the facts, we have here the case of a convict who
sentenced to imprisonment by final judgment was thereafter
never placed in confinement. Prescription of penalty, then, does not
run in her favor.16
In Del Castillo v. Torrecampo 17 , the Court cited and reiterated
Tanega. Petitioner, Del Castillo, was charged for violation of Section
178 (nn) of the 1978 Election Code. The trial court found Del
Castillo guilty beyond reasonable doubt and sentenced him to
suffer an indeterminate sentence of imprisonment of 1 year as
minimum to 3 years as maximum. On appeal the Court of Appeals
affirmed the decision of the trial court in toto. During the execution
of judgment on October 14, 1987, petitioner was not present. The
presiding Judge issued an order of arrest and the confiscation of his
bond. Petitioner was never apprehended. Ten years later, petitioner
filed a motion to quash the warrant of arrest on the ground that the
penalty imposed upon him had already prescribed. The motion was
denied by the trial court. Del Castillo, on a petition for certiorari to
the Court of Appeals, questioned the denial by the trial court. The
Court of Appeals dismissed the petition for lack of merit. Upon

denial of his Motion for Reconsideration, Del Castillo raised the

matter to this Court. The Court decided against Del Castillo and
after quoting the ratio decidendi of the Court of Appeals in full, it
ratiocinated, thus:
The foregoing conclusion of the Court of Appeals is consistent with
the ruling of this Court in Tanega vs. Masakayan, et al., where we
declared that, for prescription of penalty imposed by final sentence
to commence to run, the culprit should escape during the term of
such imprisonment.1a\^/phi1.net

Consistent with the two cases cited above, this Court pronounces
that the prescription of penalties found in Article 93 of the Revised
Penal Code, applies only to those who are convicted by final
judgment and are serving sentence which consists in deprivation of
liberty. The period for prescription of penalties begins only when
the convict evades service of sentence by escaping during the term
of his sentence. Since petitioner never suffered deprivation of
liberty before his arrest on January 20, 2000 and as a consequence
never evaded sentence by escaping during the term of his service,
the period for prescription never began.

The Court is unable to find and, in fact, does not perceive any
compelling reason to deviate from our earlier pronouncement
clearly exemplified in the Tanega case.

Petitioner, however, has by this time fully served his sentence of

two months and one day of arresto mayor and should forthwith be
released unless he is being detained for another offense or charge.

Article 93 of the Revised Penal Code provides when the prescription

of penalties shall commence to run. Under said provision, it shall
commence to run from the date the felon evades the service of his
sentence. Pursuant to Article 157 of the same Code, evasion of
service of sentence can be committed only by those who have
been convicted by final judgment by escaping during the term of
his sentence.

WHEREFORE, the decision of the Regional Trial Court of Angeles

City, Branch 56 is AFFIRMED, but petitioner is ordered released
effective immediately for having fully served his sentence unless he
is detained for another offense or charge.
No costs.
SO ORDERED.

As correctly pointed out by the Solicitor General, "escape" in legal

parlance and for purposes of Articles 93 and 157 of the RPC means
unlawful departure of prisoner from the limits of his custody.
Clearly, one who has not been committed to prison cannot be said
to have escaped therefrom.
In the instant case, petitioner was never brought to prison. In fact,
even before the execution of the judgment for his conviction, he
was already in hiding. Now petitioner begs for the compassion of
the Court because he has ceased to live a life of peace and
tranquility after he failed to appear in court for the execution of his
sentence. But it was petitioner who chose to become a fugitive. The
Court accords compassion only to those who are deserving.
Petitioner's guilt was proven beyond reasonable doubt but he
refused to answer for the wrong he committed. He is therefore not
to be rewarded therefor.
The assailed decision of the Court of Appeals is based on settled
jurisprudence and applicable laws. It did not engage in judicial
legislation but correctly interpreted the pertinent laws. Because
petitioner was never placed in confinement, prescription never
started to run in his favor.18l^vvphi1.net

G.R. No. 155791. March 16, 2005

MELBA QUINTO, Petitioners,
vs.
DANTE ANDRES and RANDYVER PACHECO, Respondents.
DECISION
CALLEJO, SR., J.:
At around 7:30 a.m. on November 13, 1995, eleven-year-old Edison
Garcia, a Grade 4 elementary school pupil, and his playmate,
Wilson Quinto, who was also about eleven years old, were at
Barangay San Rafael, Tarlac, Tarlac. They saw respondents Dante
Andres and Randyver Pacheco by the mouth of a drainage culvert.
Andres and Pacheco invited Wilson to go fishing with them inside
the drainage culvert.1 Wilson assented. When Garcia saw that it
was dark inside, he opted to remain seated in a grassy area about
two meters from the entrance of the drainage system.2
Respondent Pacheco had a flashlight. He, along with respondent
Andres and Wilson, entered the drainage system which was
covered by concrete culvert about a meter high and a meter wide,
with water about a foot deep.3 After a while, respondent Pacheco,
who was holding a fish, came out of the drainage system and
left4 without saying a word. Respondent Andres also came out, went
back inside, and emerged again, this time, carrying Wilson who was
already dead. Respondent Andres laid the boys lifeless body down
in the grassy area.5 Shocked at the sudden turn of events, Garcia
fled from the scene.6 For his part, respondent Andres went to the
house of petitioner Melba Quinto, Wilsons mother, and informed
her that her son had died. Melba Quinto rushed to the drainage
culvert while respondent Andres followed her. 7
The cadaver of Wilson was buried without any autopsy thereon
having been conducted. The police authorities of Tarlac, Tarlac, did
not file any criminal complaint against the respondents for Wilsons
death.

Two weeks thereafter, or on November 28, 1995, National Bureau of

Investigation (NBI) investigators took the sworn statements of
respondent Pacheco, Garcia and petitioner Quinto. 8 Respondent
Pacheco alleged that he had never been to the drainage system
catching fish with respondent Andres and Wilson. He also declared
that he saw Wilson already dead when he passed by the drainage
system while riding on his carabao.
On February 29, 1996, the cadaver of Wilson was exhumed. Dr.
Dominic Aguda of the NBI performed an autopsy thereon at the
cemetery and submitted his autopsy report containing the
following postmortem findings:
POSTMORTEM FINDINGS
Body in previously embalmed, early stage of decomposition, attired
with white long sleeves and dark pants and placed inside a wooden
coffin in a niche-apartment style.
Hematoma, 14.0 x 7.0 cms., scalp, occipital region.
Abrasion, 4.0 x 3.0 cms., right face, 5.0 x 3.0 cms., left forearm.
Laryngo tracheal lumina congested and edematous containing
muddy particles with bloody path.
Lungs hyperinflated, heavy and readily pits on pressure; section
contains bloody froth.

That at around 8 oclock in the morning of November 13, 1995, in

the Municipality of Tarlac, Province of Tarlac, Philippines, and within
the jurisdiction of this Honorable Court, the said accused Dante
Andres and Randyver Pacheco y Suliven @ Randy, conspiring,
confederating, and helping one another, did then and there
willfully, unlawfully, and feloniously attack, assault, and maul
Wilson Quinto inside a culvert where the three were fishing, causing
Wilson Quinto to drown and die.
CONTRARY TO LAW.10
After presenting Garcia, the prosecution presented Dr. Dominic
Aguda, who testified on direct examination that the hematoma at
the back of the victims head and the abrasion on the latters left
forearm could have been caused by a strong force coming from a
blunt instrument or object. The injuries in the larynx and trachea
also indicated that the victim died of drowning, as some muddy
particles were also found on the lumina of the larynx and trachea
("Nakahigop ng putik"). Dr. Aguda stated that such injury could be
caused when a person is put under water by pressure or by
force.11 On cross-examination, Dr. Aguda declared that the
hematoma on the scalp was caused by a strong pressure or a
strong force applied to the scalp coming from a blunt instrument.
He also stated that the victim could have fallen, and that the
occipital portion of his head could have hit a blunt object.
Dr. Aguda also declared that the 14x7-centimeter hematoma at the
back of Wilsons head could have rendered the latter unconscious,
and, if he was thrown in a body of water, the boy could have died
by drowning.

Brain autolyzed and liquefied.

Stomach partly autolyzed.
CAUSE OF DEATH: Asphyxia by drowning; traumatic head injuries,
contributory.9
The NBI filed a criminal complaint for homicide against respondents
Andres and Pacheco in the Office of the Provincial Prosecutor, which
found probable cause for homicide by dolo against the two.
An Information was later filed with the Regional Trial Court (RTC) of
Tarlac, Tarlac, charging the respondents with homicide. The
accusatory portion reads:

In answer to clarificatory questions made by the court, the doctor

declared that the 4x3-centimeter abrasion on the right side of
Wilsons face could have also been caused by rubbing against a
concrete wall or pavement, or by contact with a rough surface. He
also stated that the trachea region was full of mud, but that there
was no sign of strangulation.12
After the prosecution had presented its witnesses and the
respondents had admitted the pictures showing the drainage
system including the inside portions thereof, 13 the prosecution
rested its case.
The respondents filed a demurer to evidence which the trial court
granted on the ground of insufficiency of evidence, per its Order

dated January 28, 1998. It also held that it could not hold the
respondents liable for damages because of the absence of
preponderant evidence to prove their liability for Wilsons death.
The petitioner appealed the order to the Court of Appeals (CA)
insofar as the civil aspect of the case was concerned. In her brief,
she averred that
THE TRIAL COURT ERRED IN DISMISSING THE CASE AND IN RULING
THAT NO PREPONDERANT EVIDENCE EXISTS TO HOLD ACCUSEDAPPELLEES CIVILLY LIABLE FOR THE DEATH OF THE VICTIM WILSON
QUINTO.14
The CA rendered judgment affirming the assailed order of the RTC
on December 21, 2001. It ruled as follows:
The acquittal in this case is not merely based on reasonable doubt
but rather on a finding that the accused-appellees did not commit
the criminal acts complained of. Thus, pursuant to the above rule
and settled jurisprudence, any civil action ex delicto cannot
prosper. Acquittal in a criminal action bars the civil action arising
therefrom where the judgment of acquittal holds that the accused
did not commit the criminal acts imputed to them. (Tan v. Standard
Vacuum Oil Co., 91 Phil. 672)15
The petitioner filed the instant petition for review and raised the
following issues:
I
WHETHER OR NOT THE EXTINCTION OF RESPONDENTS CRIMINAL
LIABILITY, LIKEWISE, CARRIES WITH IT THE EXTINCTION OF THEIR
CIVIL LIABILITY.
II
WHETHER OR NOT PREPONDERANT EVIDENCE EXISTS TO HOLD
RESPONDENTS CIVILLY LIABLE FOR THE DEATH OF WILSON
QUINTO.16
The petitioner avers that the trial court indulged in mere
possibilities, surmises and speculations when it held that Wilson
died because (a) he could have fallen, his head hitting the stones in
the drainage system since the culvert was slippery; or (b) he might

have been bitten by a snake which he thought was the prick of a

fish fin, causing his head to hit hard on the top of the culvert; or (c)
he could have lost consciousness due to some ailment, such as
epilepsy. The petitioner also alleges that the trial court erred in
ruling that the prosecution failed to prove any ill motive on the part
of the respondents to kill the victim, and in considering that
respondent Andres even informed her of Wilsons death.
The petitioner posits that the trial court ignored the testimony of
the Medico-Legal Expert, Dr. Aguda; the nature, location and
number of the injuries sustained by the victim which caused his
death; as well as the locus criminis. The petitioner insists that the
behavior of the respondents after the commission of the crime
betrayed their guilt, considering that respondent Pacheco left the
scene, leaving respondent Andres to bring out Wilsons cadaver,
while respondent Andres returned inside the drainage system only
when he saw Garcia seated in the grassy area waiting for his friend
Wilson to come out.
The petitioner contends that there is preponderant evidence on
record to show that either or both the respondents caused the
death of her son and, as such, are jointly and severally liable
therefor.
In their comment on the petition, the respondents aver that since
the prosecution failed to adduce any evidence to prove that they
committed the crime of homicide and caused the death of Wilson,
they are not criminally and civilly liable for the latters death.
The petition has no merit.
Every person criminally liable for a felony is also civilly liable. 17 The
civil liability of such person established in Articles 100, 102 and 103
of the Revised Penal Code includes restitution, reparation of the
damage
caused,
and
indemnification
for
consequential
damages.18 When a criminal action is instituted, the civil action for
the recovery of civil liability arising from the offense charged shall
be deemed instituted with the criminal action unless the offended
party waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal
action.19 With the implied institution of the civil action in the
criminal action, the two actions are merged into one composite
proceeding, with the criminal action predominating the civil. 20

The prime purpose of the criminal action is to punish the offender

in order to deter him and others from committing the same or
similar offense, to isolate him from society, to reform and
rehabilitate him or, in general, to maintain social order. 21 The sole
purpose of the civil action is the restitution, reparation or
indemnification of the private offended party for the damage or
injury he sustained by reason of the delictual or felonious act of the
accused.22While the prosecution must prove the guilt of the
accused beyond reasonable doubt for the crime charged, it is
required to prove the cause of action of the private complainant
against the accused for damages and/or restitution.
The extinction of the penal action does not carry with it the
extinction of the civil action. However, the civil action based on
delict shall be deemed extinguished if there is a finding in a final
judgment in the civil action that the act or omission from where the
civil liability may arise does not exist.23
Moreover, a person committing a felony is criminally liable for all
the natural and logical consequences resulting therefrom although
the wrongful act done be different from that which he
intended.24 "Natural" refers to an occurrence in the ordinary course
of human life or events, while "logical" means that there is a
rational connection between the act of the accused and the
resulting injury or damage. The felony committed must be the
proximate cause of the resulting injury. Proximate cause is that
cause which in natural and continuous sequence, unbroken by an
efficient intervening cause, produces the injury, and without which
the result would not have occurred. The proximate legal cause is
that acting first and producing the injury, either immediately, or by
setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection
with its immediate predecessor.25
There must be a relation of "cause and effect," the cause being the
felonious act of the offender, the effect being the resultant injuries
and/or death of the victim. The "cause and effect" relationship is
not altered or changed because of the pre-existing conditions, such
as the pathological condition of the victim (las condiciones
patologica del lesionado); the predisposition of the offended party
(la predisposicion del ofendido); the physical condition of the
offended party (la constitucion fisica del herido); or the
concomitant or concurrent conditions, such as the negligence or
fault of the doctors (la falta de medicos para sister al herido); or the

conditions supervening the felonious

pulmonary infection or gangrene.26

act

such

as

tetanus,

The felony committed is not the proximate cause of the resulting

injury when:
(a) there is an active force that intervened between the felony
committed and the resulting injury, and the active force is a distinct
act or fact absolutely foreign from the felonious act of the accused;
or
(b) the resulting injury is due to the intentional act of the victim. 27
If a person inflicts a wound with a deadly weapon in such a manner
as to put life in jeopardy and death follows as a consequence of
their felonious act, it does not alter its nature or diminish its
criminality to prove that other causes cooperated in producing the
factual result. The offender is criminally liable for the death of the
victim if his delictual act caused, accelerated or contributed to the
death of the victim.28 A different doctrine would tend to give
immunity to crime and to take away from human life a salutary and
essential safeguard.29 This Court has emphasized that:
Amid the conflicting theories of medical men, and the
uncertainties attendant upon the treatment of bodily ailments and
injuries, it would be easy in many cases of homicide to raise a
doubt as to the immediate cause of death, and thereby to open a
wide door by which persons guilty of the highest crime might
escape conviction and punishment. 30
In People v. Quianzon,31 the Supreme Court held:
The Supreme Court of Spain, in a Decision of April 3, 1879, said
in a case similar to the present, the following: Inasmuch as a man is
responsible for the consequences of his act and in this case, the
physical condition and temperament of the offended party nowise
lessen the evil, the seriousness whereof is to be judged, not by the
violence of the means employed, but by the result actually
produced; and as the wound which the appellant inflicted upon the
deceased was the cause which determined his death, without his
being able to counteract its effects, it is evident that the act in
question should be qualified as homicide, etc.32

In the present case, the respondents were charged with homicide

by dolo. In People v. Delim,33 the Court delineated the burden of the
prosecution to prove the guilt of the accused for homicide or
murder:
In the case at bar, the prosecution was burdened to prove
the corpus delicti which consists of two things: first, the criminal act
and second, defendants agency in the commission of the act.
Wharton says that corpus delictiincludes two things: first, the
objective; second, the subjective element of crimes. In homicide
(by dolo) and in murder cases, the prosecution is burdened to
prove: (a) the death of the party alleged to be dead; (b) that the
death was produced by the criminal act of some other than the
deceased and was not the result of accident, natural cause or
suicide; and (c) that defendant committed the criminal act or was
in some way criminally responsible for the act which produced the
death. To prove the felony of homicide or murder, there must be
incontrovertible evidence, direct or circumstantial, that the victim
was deliberately killed (with malice); in other words, that there was
intent to kill. Such evidence may consist inter alia in the use of
weapons by the malefactors, the nature, location and number of
wounds sustained by the victim and the words uttered by the
malefactors before, at the time or immediately after the killing of
the victim. If the victim dies because of a deliberate act of the
malefactor, intent to kill is conclusively presumed. 34
Insofar as the civil aspect of the case is concerned, the prosecution
or the private complainant is burdened to adduce preponderance of
evidence or superior weight of evidence. Although the evidence
adduced by the plaintiff is stronger than that presented by the
defendant, he is not entitled to a judgment if his evidence is not
sufficient to sustain his cause of action. The plaintiff must rely on
the strength of his own evidence and not upon the weakness of
that of the defendants.35
Section 1, Rule 133 of the Revised Rules of Evidence provides how
preponderance of evidence is determined:
Section 1. Preponderance of evidence, how determined. In civil
cases, the party having the burden of proof must establish his case
by a preponderance of evidence. In determining where the
preponderance or superior weight of evidence on the issues
involved lies, the court may consider all the facts and circumstance
of the case, the witnesses manner of testifying, their intelligence,
their means and opportunity of knowing the facts to which they are

testifying, the nature of the facts to which they testify, the

probability of their testimony, their interest or want of interest, and
also their personal credibility so far as the same may legitimately
appear upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with the
greater number.36
In the present case, we rule that, as held by the trial court and the
CA, the prosecution failed to adduce preponderant evidence to
prove the facts on which the civil liability of the respondents
rest, i.e., that the petitioner has a cause of action against the
respondents for damages.
It bears stressing that the prosecution relied solely on the collective
testimonies of Garcia, who was not an eyewitness, and Dr. Aguda.
We agree with the petitioner that, as evidenced by the Necropsy
Report of Dr. Dominic Aguda, the deceased sustained a 14x7centimeter hematoma on the scalp. But as to how the deceased
sustained the injury, Dr. Aguda was equivocal. He presented two
possibilities: (a) that the deceased could have been hit by a blunt
object or instrument applied with full force; or (b) the deceased
could have slipped, fell hard and his head hit a hard object:
COURT:
The Court would ask questions.
Q So it is possible that the injury, that is the hematoma, caused
on the back of the head might be due to the victims falling on his
back and his head hitting a pavement?
A Well, the 14x7-centimeter hematoma is quite extensive, so if the
fall is strong enough and would fall from a high place and hit a
concrete pavement, then it is possible.
Q Is it possible that if the victim slipped on a concrete pavement
and the head hit the pavement, the injury might be caused by that
slipping?
A It is also possible.

Q So when the victim was submerged under water while

unconscious, it is possible that he might have taken in some mud
or what?

A - If the fall if the victim fell and he hit a hard object, well, it is
also possible.39
The trial court took into account the following facts:

A Yes, Sir.
Q So it is your finding that the victim was submerged while still
breathing?
A Yes, Your Honor, considering that the finding on the lung also
would indicate that the victim was still alive when he was placed
under water.37
The doctor also admitted that the abrasion on the right side of the
victims face could have been caused by rubbing against a concrete
wall or pavement:
Q The abrasion 4x3 centimeters on the right [side of the] face,
would it be caused by the face rubbing against a concrete wall or
pavement?
A Yes, Sir. Abrasion is usually caused by a contact of a skin to a
rough surface.
Q Rough surface?
A Yes, Your Honor.
Q When you say that the trachea region was full of mud, were there
no signs that the victim was strangled?

Again, it could be seen from the pictures presented by the

prosecution that there were stones inside the culvert. (See Exhibit
"D" to "D-3"). The stones could have caused the victim to slip and
hit his head on the pavement. Since there was water on the culvert,
the portion soaked with water must be very slippery, aside from the
fact that the culvert is round. If the victim hit his head and lost
consciousness, he will naturally take in some amount of water and
drown.40
The CA affirmed on appeal the findings of the trial court, as well as
its conclusion based on the said findings.
We agree with the trial and appellate courts. The general rule is
that the findings of facts of the trial court, its assessment of
probative weight of the evidence of the parties, and its conclusion
anchored on such findings, affirmed no less by the CA, are given
conclusive effect by this Court, unless the trial court ignored,
misapplied or misconstrued cogent facts and circumstances which,
if considered, would change the outcome of the case. The
petitioner failed to show any justification to warrant a reversal of
the findings or conclusions of the trial and appellate courts.
That the deceased fell or slipped cannot be totally foreclosed
because even Garcia testified that the drainage culvert was dark,
and that he himself was so afraid that he refused to join
respondents Andres and Pacheco inside.41 Respondent Andres had
no flashlight; only respondent Pacheco had one.

A There was no sign of strangulation, Your Honor.38

The trial court gave credence to the testimony of Dr. Aguda that the
deceased might have slipped, causing the latter to fall hard and hit
his head on the pavement, thus:
Q -Could it be possible, Doctor, that this injury might have been
caused when the victim fell down and that portion of the body or
occipital portion hit a blunt object and might have been inflicted as
a result of falling down?

Moreover, Dr. Aguda failed to testify and explain what might have
caused the abrasion on the left forearm of the deceased. He,
likewise, failed to testify whether the abrasions on the face and left
forearm of the victim were madeante mortem or post mortem.
The petitioner even failed to adduce preponderance of evidence
that either or both the respondents hit the deceased with a blunt
object or instrument, and, consequently, any blunt object or
instrument that might have been used by any or both of the
respondents in hitting the deceased.

It is of judicial notice that nowadays persons have killed or

committed serious crimes for no reason at all. 42However, the
absence of any ill-motive to kill the deceased is relevant and
admissible in evidence to prove that no violence was perpetrated
on the person of the deceased. In this case, the petitioner failed to
adduce proof of any ill-motive on the part of either respondent to
kill the deceased before or after the latter was invited to join them
in fishing. Indeed, the petitioner testified that respondent Andres
used to go to their house and play with her son before the latters
death:
Q Do you know this Dante Andres personally?
A Not much but he used to go to our house and play with my son
after going from her mother who is gambling, Sir.
Q But you are acquainted with him, you know his face?
A Yes, Sir.
Q Will you please look around this courtroom and see if he is
around?
A (Witness is pointing to Dante Andres, who is inside the
courtroom.)43
When the petitioners son died inside the drainage culvert, it was
respondent Andres who brought out the deceased. He then
informed the petitioner of her sons death. Even after informing the
petitioner of the death of her son, respondent Andres followed the
petitioner on her way to the grassy area where the deceased was:
Q Did not Dante Andres follow you?
A He went with me, Sir.
Q So when you went to the place where your son was lying, Dante
Andres was with you?
A No, Sir. When I was informed by Dante Andres that my son was
there at the culvert, I ran immediately. He [was] just left behind and
he just followed, Sir.

Q So when you reached the place where your son was lying down,
Dante Andres also came or arrived?
A It was only when we boarded the jeep that he arrived, Sir. 44
In sum, the petitioner failed to adduce preponderance of evidence
to prove a cause of action for damages based on the deliberate
acts alleged in the Information.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for
lack of merit. No costs.
SO ORDERED.

The Antecedents
Ernesto Ancheta was employed by the Philippine Rabbit Bus Lines,
Inc. (PRBLI) as driver of one of its passenger buses. On July 23,
1993, an Information was filed with the RTC of Capas, Tarlac,
Branch 66, charging Ancheta with reckless imprudence resulting in
homicide. The inculpatory portion of the Information reads:

G.R. No. 160355

May 16, 2005

PHILIPPINE RABBIT BUS LINES, INC., petitioner,

vs.
HEIRS OF EDUARDO MANGAWANG and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION

That on November 23, 1992 at around 11:50 oclock (sic) in

the morning, at Brgy. Dolores, Municipality of Capas,
Province of Tarlac, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, being then the
driver and person-in-charge of a Philippine Rabbit Bus
bearing Plate No. CVE-707 with MVRR No. 63044987,
registered in the name of the Philippine Rabbit Bus Lines,
Inc. of Tarlac, Tarlac, did then and there, willfully, unlawfully
and feloniously and with reckless imprudence and managed
the said Philippine Rabbit Bus at Brgy. Dolores, Capas,
Tarlac, in a careless, negligent and imprudent manner,
without due regard to laws, regulations, ordinances and
traffic code and without taking the necessary precaution to
prevent accident to persons and damage to property and in
violation of the Land Transportation Laws, said bus driven by
the accused while cruising the MacArthur Highway towards
the south direction, bumped the left rear side of a Toyota
jeep with Plate No. TAB 929 with MVRR No. 64284647 owned
by Zenaida B. Dizon of 193 M. Santos St., Pasay City, Metro
Manila, and driven by Eduardo Mangawang towards the
north direction, and as a result thereof said Eduardo
Mangawang ultimately died and the jeep he was then
driving sustained damages of an undetermined amount, to
the damage and prejudice of the deceased and the owner
thereof.
Contrary to law.3

CALLEJO, SR., J.:

The accused was assisted by Atty. Crispiniano Lamorena, Jr., whom

the PRBLI assigned as counsel de parte. Atty. Andres Pangilinan
entered his appearance as private prosecutor.

This is a petition for review of the Decision 1 of the Court of Appeals

(CA) in CA-G.R. CV No. 78149 affirming the Decision 2 of the
Regional Trial Court (RTC) in Criminal Case No. 743-C(93)
convicting the accused Ernesto Ancheta of reckless imprudence
resulting in homicide.

The trial court rendered judgment on November 12, 1999,

convicting the accused of the crime charged. The falloof the
decision reads:

WHEREFORE, premises considered, judgment is hereby

rendered finding the accused, ERNESTO ANCHETA, guilty
beyond reasonable doubt of the crime of Reckless
Imprudence Resulting to Homicide.
Accordingly, the said accused is hereby sentenced to suffer
the indeterminate penalty of imprisonment of two (2) years
and four (4) months of prision correccional in its minimum
period as minimum to six (6) years of prision correccional in
its maximum period as maximum.
For the civil liability of the accused, Ernesto Ancheta is
hereby ordered to indemnify the heirs of Eduardo
Mangawang the amounts of P28,600.00 as actual or
compensatory damages and P1,436,466.30 representing
loss of earning capacity. The accused is similarly ordered to
pay the amounts of P50,000.00 by way of indemnification
for
the
death
of
Eduardo
Mangawang
and
another P50,000.00 as moral damages.
SO ORDERED.4
The accused appealed the decision to the CA. On November 10,
2000, the appellate court issued a Resolution dismissing the appeal
due to Anchetas failure to file his brief as accused-appellant. 5 The
resolution of the CA dismissing the appeal became final and
executory, thus, entry of judgment was made of record on
December 7, 2000. After the transmission of the records to the RTC,
it issued an Order on June 5, 2001 for the arrest of the accused. 6
On June 29, 2001, the PRBLI, as Anchetas employer, filed a Notice
of Appeal of the decision of the RTC. On July 18, 2001, the RTC
issued an Order denying due course to the notice of appeal, on its
finding that the notice was filed long after the judgment of the RTC
had become final and executory.7 The PRBLI filed a motion for the
reconsideration of the order, claiming that it was not served with a
copy of the decision of the RTC convicting the accused of the crime
charged; hence, could not have appealed the same. On August 1,
2001, the trial court issued an Order denying the said motion. The
PRBLI filed an urgent motion, this time for clarification of the said
order, which the trial court denied in an Order dated August 31,
2001. Undaunted, the PRBLI filed a manifestation with motion,
citing the ruling of this Court in Ozoa v. Vda. de Madula.8 On
October 17, 2001, the trial court issued an Order, this time,
granting the motion and giving due course to the appeal of the

PRBLI. The trial court, likewise, ordered the records to be

transmitted to the CA for the consideration of the appeal, where the
latter made the following assignment of errors:
I
THE TRIAL COURT SERIOUSLY ERRED IN THE APPRECIATION
OF THE FACTS AND THE EVIDENCE.
II
THE TRIAL COURT SERIOUSLY ERRED IN ATTRIBUTING
SUPPOSED NEGLIGENCE AND LACK OF FORESIGHT ON THE
PART OF THE ACCUSED ANCHETA.
III
THE TRIAL COURT SERIOUSLY ERRED IN SO GENEROUSLY
AWARDING UNCONSCIONABLE AMOUNTS IN SUPPOSED
DAMAGES TO THE HEIRS OF EDUARDO MANGAWANG. 9
On October 10, 2003, the CA rendered judgment affirming with
modification the decision of the RTC. The fallo of the decision reads:
WHEREFORE, premises considered, the Decision dated
November 12, 1999 of the Regional Trial Court of Capas,
Tarlac, Branch 66, in Criminal Case No. 743-C(93) is hereby
AFFIRMED with the correction that the actual damages to be
awarded should only be P5,000.00. All other respects
remain. Costs against appellant.
SO ORDERED.10
The appellate court dismissed the appeal on the ground that the
decision of the RTC had long become final and executory when the
PRBLI appealed the decision. It ruled that the PRBLI was bound by
the said decision against the accused therein. 11 Nevertheless, the
appellate court resolved the appeal on its merits and affirmed the
decision of the RTC, but with modification. 12
The PRBLI forthwith filed the present petition for review
on certiorari, assailing the decision of the CA on the following
grounds:

A.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE
CONVICTION OF THE ACCUSED HAS ATTAINED FINALITY AS
AGAINST PETITIONER.
B.
PETITIONER MUST BE AFFORDED THE STANDING AND THE
OPPORTUNITY TO QUESTION THE ACCUSEDS CONVICTION.13
The petitioner submits the ruling of this Court in Pajarito v.
Seneris14 and Miranda v. Malate Garage & Taxicab, Inc.,15 that "the
decision of the trial court convicting the employee is binding and
conclusive upon the employer not only with regard to the civil
liability but also, with regard to its amount," should not apply to it.
It avers that unlike in Pajarito and Miranda, the counsel of the
accused therein was given ample opportunity to defend the
accused during the trial and on appeal in the CA. The petitioner
laments that in this case, the counsel it provided to defend the
accused was remiss in the performance of his duties and failed to
notify it of the RTC decision, the November 10, 2000 Resolution of
the CA, as well as the June 5, 2001 Order of the RTC; consequently,
it was not apprised of its civil liability to the heirs of the deceased,
thus depriving the petitioner of its right to due process. It avers
that it was only on account of its own diligence that it discovered
the decision of the RTC, the November 10, 2000 Resolution of the
CA and the June 5, 2001 Order of the RTC.
The petitioner further avers that it was not furnished with a copy of
the said CA Resolution, and of the Arrest Order of the RTC dated
June 5, 2001. The petitioner posits that until it is furnished with
such copies, the period within which to assail the decision of the
RTC on its civil liability to the heirs of the deceased had not
commenced to run.
The petitioner submits that it is unjust and unreasonable for the CA
to deprive it of its right to question its civil liability to the heirs of
the deceased, considering the gross negligence of the counsel that
it had provided the accused.
By way of comment on the petition, the Office of the Solicitor
General (OSG) contends that the decision of the RTC convicting
Ancheta of the crime charged had become final and executory,

following the dismissal of his appeal before the CA. The decision of
the RTC was conclusive on the petitioner, not only with regard to its
civil liability but also as to the amount thereof, absent any collusion
between the accused-employee and the private complainant. The
petitioner was not a direct party in the criminal case; hence, was
not entitled to a copy of the decision of the RTC or to appeal
therefrom; it was, likewise, not entitled to be furnished a copy of
the CA Resolution dated November 10, 2000 and the Order of the
RTC dated June 5, 2001. Hence, according to the OSG, it cannot
complain of denial of its right to due process. The OSG further
asserts that the petition at bar is premature, considering that no
writ of execution has yet been issued by the RTC, and cites the
ruling of this Court in Philippine Rabbit Bus Lines, Inc. v. People 16 to
buttress its stance.
The petition is denied for lack of merit.
The ruling of the CA dismissing the petitioners appeal of the RTC
decision convicting Ancheta of reckless imprudence resulting in
homicide is correct. However, the Court of Appeals erred in
modifying the decision of the RTC.
The petitioner, as the employer of the said accused, had no right to
appeal from the said decision because, in the first place, it was not
a party in the said case. While the subsidiary liability provided for
by Articles 102 and 103 of the Revised Penal Code may render the
petitioner a party in substance and, in effect, it is not, for this
reason, entitled to be furnished a copy of the decision of the RTC,
as well as the resolution and decision of the CA.
Indeed, the petitioner was entitled to protect its interest by taking
actual participation in the defense of its employee, Ancheta, by
providing him with counsel. It cannot leave its employee to his own
fate because his failure is its failure. 17 The petitioner, as the
employer of the accused, would thereby be apprised of the
progress of the case and the outcome thereof from time to time
through the said counsel. The failure of such counsel to apprise the
petitioner of the progress of the case is thus not equivalent to lack
of due process. The pronouncement of the Court in Miranda v.
Malate Garage & Taxicab, Inc. 18 is instructive on this score:
It is true that an employer, strictly speaking, is not a party
to the criminal case instituted against his employee but in
substance and, in effect, he is considering the subsidiary
liability imposed upon him by law. It is his concern, as well

as of his employee, to see to it that his interest be protected

in the criminal case by taking virtual participation in the
defense of his employee. He cannot leave him to his own
fate because his failure is also his. And if because of his
indifference or inaction the employee is convicted and
damages are awarded against him, he cannot later be heard
to complain, if brought to court for the enforcement of his
subsidiary liability, that he was not given his day in court. It
was not without purpose that this Court sounded the
following stern warning:
"It is high time that the employer exercised the
greatest care in selecting his employees, taking real
and deep interest in their welfare; intervening in any
criminal action brought against them by reason of or
as a result of the performance of their duties, if only
in the way of giving them the benefit of counsel; and,
consequently, doing away with the practices of
leaving them to their fates. If these be done, the
American rule requiring notice on the part of the
employer shall have been satisfied." (Martinez v.
Barredo, supra.)19
In Ozoa v. Vda. de Madula,20 the Court explained the effect of a
judgment of conviction against the employee on the subsidiary
liability of the employer, as follows:
To be sure, the correctness of the legal principles cited by
the Court a quo cannot be gainsaid. A person criminally
liable is also civilly liable; and upon the institution of the
criminal action, the civil action for the recovery of the civil
liability arising from the crime is also impliedly instituted
unless waived, or the filing of a separate action therefor is
reserved. The employer is subsidiarily answerable for the
adjudicated civil liabilityex delicto of his employee in the
event of the latters insolvency; and the judgment in the
criminal action pronouncing the employee to be also civilly
liable is conclusive on the employer not only as to the
actuality of that liability but also as to its amount. 21
Since the petitioner was not a party in the RTC and in the CA on the
appeal of its employee (Ancheta), the petitioner cannot justifiably
claim that it was deprived of its right to due process. As explained
by this Court inMartinez v. Barredo:22

The employer cannot be said to have been deprived of his

day in court, because the situation before us is not one
wherein the employer is sued for a primary liability under
Article 1903 of the Civil Code, but one in which enforcement
is sought of a subsidiary civil liability incident to and
dependent upon his drivers criminal negligence which is a
proper issue to be tried and decided only in a criminal
action. In other words, the employer becomes ipso
facto subsidiarily liable upon his drivers conviction and
upon proof of the latters insolvency, in the same way that
acquittal wipes out not only the employees primary civil
liability but also his employers subsidiary liability for such
criminal negligence. (Almeida, et al. v. Abaroa, 8 Phil. 178,
affirmed in 218 U.S. 476; 54 Law ed., 1116; Wise & Co. v.
Larion, 45 Phil. 314, 320; Francisco v. Onrubia, 46 Phil.
327;Province of Ilocos Sur v. Tolentino, G.R. No. 34186, 56
Phil. 829; Moran, Comments on the Rules of Court, Vol. II, p.
403.)23
Besides, as gleaned from the brief of the petitioner, as appellant in
the CA, in CA-G.R. CV No. 78149, it sought the reversal of the
decision of the RTC and the acquittal of its employee. In Philippine
Rabbit Bus Lines, Inc. v. People,24 this Court held that such an
appeal would be impermissible for the following reasons:
An appeal from the sentence of the trial court implies a
waiver of the constitutional safeguard against double
jeopardy and throws the whole case open to a review by the
appellate court. The latter is then called upon to render
judgment as law and justice dictate, whether favorable or
unfavorable to the appellant. This is the risk involved when
the accused decides to appeal a sentence of conviction.
Indeed, appellate courts have the power to reverse, affirm
or modify the judgment of the lower court and to increase or
reduce the penalty it imposed.
If the present appeal is given [due] course, the whole case
against the accused-employee becomes open to review. It
thus follows that a penalty higher than that which has
already been imposed by the trial court may be meted out
to him. Petitioners appeal would thus violate his right
against double jeopardy, since the judgment against him
could become subject to modification without his consent. 25

Indeed, to allow an employer to dispute its civil liability in the

criminal case via an appeal from the decision of the RTC would be
to annul, nullify or defeat a final judgment rendered by a
competent court.26
The Court cannot second guess whether Anchetas failure to file his
brief as appellant in the CA was through the negligence of his
counsel or because of the belief that, indeed, he was guilty of the
crime charged and it was purposeless and futile for him to still file
such brief.
We agree with the contention of the OSG that the right of the
petitioner as the employer of the accused to due process occurs
during the hearing of the motion for the issuance of an alias writ of
execution, on the basis of the sheriffs return that the writ of
execution issued by the court for the enforcement of its decision on
the civil liability of the accused was not satisfied because of the
latters insolvency, the sheriff being unable to locate any property
in the name of the accused. Such return is prima facie evidence of
the insolvency of the accused.27
During the hearing of the motion for the issuance of an alias writ of
execution, the prosecution must prove that (a) the petitioner PRBLI
was the employer of the accused; (b) it was engaged in some kind
of industry; (c) the crime was committed by the employee in the
discharge of his duties; and (d) execution against the employee is
unsatisfied.28 The prosecution may offer in evidence the sheriffs
return as prima facie evidence of the insolvency of the accused.
The petitioner, as the employer of the accused, may adduce
evidence on questions which may be involved in the execution
since the trial court which rendered the decision has a general
supervisory control over the process of execution. 29
From a ruling adverse to the employer, it may appeal by writ of
error on questions of facts, or mixed questions of facts and of law,
or by certiorari on questions of jurisdiction or grave abuse of
discretion of the trial court, thus:
It goes without saying that the determination thus made as
regards the employers subsidiary civil liability is not
conclusive in the sense of being non-reviewable by higher
judicial authority. It may be appealed to a higher court at the
instance of the aggrieved party either the offended party
or the employer by writ of error seeking review of

questions of fact or mixed questions of fact and law, or

through a petition for review on certiorari, limited to a
consideration only of questions of law. Or review may be
sought by the institution of a special civil action of certiorari,
upon the theory that the determination was made by the
trial court without or in excess of its jurisdiction, or with
grave abuse of discretion.30
Hence, the Court of Appeals erred in modifying the decision of the
RTC which had long become final and executory. A final and
executory decision, even if erroneous, can no longer be modified.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for
lack of merit. The Resolution of the Court of Appeals dismissing the
appeal of the petitioner is AFFIRMED. However, that portion of the
Decision of the Court of Appeals modifying the decision of the
Regional Trial Court, dated November 12, 1999, is SET ASIDE.
SO ORDERED.