Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-19069

October 29, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AMADEO PERALTA, ET AL., defendants,
ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG, AMADEO PERALTA, FLORENCIO LUNA and
GERVASIO LARITA, defendants-review.
Assistant Solicitors General Vicente A. Torres and Antonio Ibarra for plaintiff-appellee.
J. R. Nuguid for defendants-review.
PER CURIAM:
In the decision in criminal case 7705 of the Court of First Instance of Rizal,subject of the present automatic
review, Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio Luna(six
among the twenty-two defendants1 charged therein with multiple murder) were pronounced guilty, and all sentenced
to death, to indemnify jointly and severally the heirs of each of the victims, namely, Jose Carriego, Eugenio
Barbosa and Santos Cruz, in the sum of P6,000, and each to pay his corresponding share of the costs.
The information recites:
That on or about the 16th day of February, 1958, in the municipality of Muntinglupa, province of Rizal,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, who are convicts
confined in the New Bilibid Prisons by virtue of final judgments, conspiring, confederating and mutually
helping and aiding one another, with evident premeditation and treachery, all armed with deadly weapons,
did, then and there, willfully, unlawfully and feloniously kill Jose Carriego, Eugenio Barbosa and Santos
Cruz, also convicts confined in the same institution, by hitting, stabbing and striking them with ice picks,
clubs and other improvised weapons, pointed and/or sharpened, thereby inflicting upon the victims multiple
serious injuries which directly caused their deaths.
That the aggravating circumstance of quasi-recidivism is present in the commission of the crime in that the
crime was committed after the accused have been convicted by final judgments and while they are serving
the said judgments in the New Bilibid Prisons.
Contrary to law with the following aggravating circumstances:
1. That the crime was committed with insult to public authorities;
2. That the crime was committed by a band;
3. That the crime was committed by armed men or persons who insure or afford impunity;
4. That use of superior strength or means was employed to weaken the defense;
5. That as a means to the commission of the crime doors and windows have been broken;
6. That means was employed which add ignominy to the natural effects of the act;
7. That the crime was committed where public authorities were engaged in the discharge of their duties.
Upon motion of the provincial fiscal before trial, the lower court dismissed the charge against one of the accused 2for
lack of evidence. After the prosecution had rested its case, the charges against six of the accused 3 were dismissed
for failure of the prosecution to establish a prima facie case against them. One of the defendants died 4during the
pendency of the case. After trial, the court a quo acquitted eight5 of the remaining defendants.
As early as in 1956, a great number of inmates confined in the national penitentiary at Muntinglupa arrayed
themselves into two warring gangs, the "Sigue-Sigue" and the "OXO", the former composed predominantly of
Tagalog inmates, the latter comprised mainly of prisoners from the Visayas and Mindanao. Since then the prison

compound has been rocked time and time again by bloody riots resulting in the death of many of their members and
suspected sympathizers. In an effort to avert violent clashes between the contending groups, prison officials
segrerated known members of the "Sigue-Sigue" from those of the "OXO". Building 1 housed "Sigue-Sigue"
members, while a majority of the prisoners confined in Bldg. 4 belonged to the "OXO". Even in Bldg. 4, which is
composed of four brigades, namely, 4-A and 4-B (upper floor) and 4-C and 4-D (first floor), inmates from Visayas
and Mindanao, from whom the "OXO" drew most of its members, were confined in 4-A.
It was at about 7:00 a.m. on February 16, 1958, while the inmates of the penitentiary were preparing to attend
Sunday mass, that a fight between two rival members of the "Sigue-Sigue" and "OXO" gangs occurred in the plaza
where the prisoners were assembled, causing a big commotion. The fight was, however, quelled, and those involved
were led away for investigation, while the rest of the prisoners were ordered to return to their respective quarters.
Hardly had conditions returned to normal when a riot broke out in Bldg. 1, a known lair of the "Sigue-Sigue". The
inmates thereof tried to invade Bldg. 4, where many members and sympathizers of the "OXO" gang were confined.
The timely arrival of the guards forced the invading inmates to retreat and return to Bldg. 1. Moments later, another
riot erupted in Bldg. 4, as the inmates of brigade 4-A destroyed the lock of their door and then rampaged from one
brigade to another. The invading prisoners from 4-A, mostly "OXO" members and sympathizers, clubbed and
stabbed to death Jose Carriego, an inmate of 4-B. Afterwards, they forcibly opened the door of 4-C and killed two
more inmates, namely, Eugenio Barbosa and Santos Cruz.
The three victims sustained injuries which swiftly resulted in their death before they could be brought to the
hospital.
Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in length and 3 cm.in depth; (b) contusion and hematoma
of the back of the neck, about 2 inches in diameter; and (c) five punctured wounds in the chest, penetrating the
lungs. Cause of death: internal hemorrhage from multiple fatal wounds in the chest.
Eugenio Barbosa: (a) lacerated wound in the occipital region, 3 inches in length and 1 cm. in depth; (b) two
penetrating wounds in the abdomen, puncturing the intestines; (c) lacerated wounds on the right oxilla, 3 cm. in
length and 2 cm. in depth; and (d) several bruises at the right and left lower extremities. Cause of death: shock,
secondary to internal hermorrhage in the abdomen.
Santos Cruz: (a) lacerated wound on the head, 2 inches in length; (b) fractured skull; (c) wound on the upper lip
cutting the lip in two; (d) seven punctured wounds in the chest, two of which were penetrating; (e) hematoma on the
right hand; and (f) three punctured wounds on the left hand. Cause of death: fractured skull.
Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-B, testified that while he was taking his breakfast
with Jose Carriego, who was at the time the representative of the prisoners confined in 4-B to the inmate carcel, he
"suddenly heard commotion" near the door of their brigade; that his fellow prisoners started shouting "pinapasok na
tayo," as the invading inmates from brigade 4-A stampeded into 4-B; that he and Carriego took hold of their clubs
and stood at the end of the passageway; that he saw Carriego surrender his club to Andres Factora, an "OXO"
member from 4-A; that as Carriego started to walk away, Factora clubbed Carriego on the nape causing the latter to
fall; that Factora turned up the face of his fallen victim and struck him again in the face; that while Carriego was in
this prostrate position, Amadeo Peralta and Leonardo Dosal, companions of Factora, repeatedly stabbed him.
The testimony of Pineda was corroborated in all its material points by Juanito Marayoc and Avelino Sauza, both
inmates of 4-B. These two prosecution witnesses identified Factora, Peralta and Dosal as the assailants of Carriego.
From 4-B, the invading inmates of 4-A went down and forcibly entered 4-C. According to Oscar Fontillas, an inmate
of 4-C, he saw the prisoners from 4-A rushing toward their brigade; that among the invading inmates who forced
open the door of 4-C, with help from the inside provided by Visayan prisoners confined in 4-C, were Factora, Dosal,
Angel Parumog, Gervacio Larita, Ernesto Fernandez and Jose Tariman; that he saw Factora, Larita and Fernandez
kill Barbosa, while the rest of their companies instructed the Visayans to leave their cell and ordered the "Manila
boys" (Tagalogs) to remain. Antonio Pabarlan, another inmate of 4-C, declared that he saw Peralta stab Barbosa, as
Dosal, Larita, Florencio Luna, Parumog and Factora clubbed the hapless victim. Another inmate of 4-C, Jose Halili,
not only corroborated the testimony of Fontillas and Pabarlan but as well added grim details. He declared that while
Barbosa was trying to hide under a cot, he was beaten and stabbed to death by Dosal, Parumog, Factora and
Fernandez, with Luna, Larita, Pedro Cogol and Eilel Tugaya standing guard, armed with clubs and sharp
instruments, in readiness to repel any intervention from the Tagalog inmates. Carlos Espino, also confined in 4-C,
declared that he saw Parumog, Peralta Factora and Larita assault and kill Barbosa.
The same witnesses for the prosecution testifies that after killing Barbosa, the invading "OXO" members and
sympathizers proceeded to hunt for Santos Cruz, another Tagalog like Carriego and Barbosa. Halili testified, that he
saw Peralta, Larita, Cogol and Tugaya take Santos Cruz to 4-A from 4-C; that Santos Cruz knelt down and pleaded
for his life, saying, "Maawa kayo sa akin. Marami akong anak;" that Luna and Peralta were unmoved as they
stabbed Santos Cruz to death. Pabarlan declared that after the death of Barbosa, Santos Cruz was brought to 4-A

by the invading inmates but Cruz was able to slip back to his cell only to be recaptured by Factora, Dosal and Luna
and brought to near the fire escape where he was clubbed and stabbed to death by Parumog, Dosal, Factora and
Peralta. Fontillas and Espino corroborated the declarations of Halili and Pabarlan with respect to the killing of
Santos Cruz, and both mentioned Larita as one of the assailants of Cruz.
The trial judge summarized the evidence for the prosecution, thus:
"... it clearly appears that the three killings in question were an offshoot of the rivalry between the two
organizations. All those who were killed, namely, Barbosa, Carriego and Santos Cruz, were Tagalogs and
well known as members if not sympathizers of the Sigue Sigue, while the accused so charged with their
killing were mostly members if not sympathizers of the Oxo organization. These three killings were sparked
by the commotion that happened in the plaza between 8:00 and 9:00 in the morning, while the prisoners
were preparing to go the mass ... It was evident that the clash that occurred in the plaza produced a chain
reaction among the members and followers of the two organizations. The inmates of Building No. 1, known
lair of the Sigue Sigues bolted the door of their cells and tried to invade Building No. 4 where a big number
of the Oxo members and their sympathizers were confined, but, however, were forced to retreat by the
timely arrival of the guards who sent them back to their building. When the members of the Oxo in Building
No. 4 learned about this, they went on a rampage looking for members of the Sigue Sigue or their
sympathizers who were confined with them in the same building. As the evidence of the prosecution shows,
the accused who were confined in Brigade 4-A of Building No. 4 led the attack. They destroyed the lock of
their dormitories and with the help of their companions succeeded in bolting the door of the different
brigades, and once they succeeded in bolting the doors of the different brigades, they went inside and tried
to segregate the Tagalogs from their group; that as soon as they discovered their enemies they clubbed and
stabbed them to death ...
Admitting that he was one among several who killed Jose Carriego, Peralta nevertheless claims self-defense. He
testified that on the morning of the riot he was attacked by Carriego and Juan Estrella near the door of 4-A while he
was returning to his brigade from the chapel with some companions; that Carriego clubbed him on the head; that he
was able to parry the second blow of Carriego and then succeeded in squeezing Carriego's head with his hands;
that forthwith he whipped out an improvised ice pick and stabbed Carriego several times; that when he (Peralta)
was already dizzy due to the head wound he sustained from the clubbing, Carriego managed to slip away; that he
then became unconscious, and when he regained consciousness he found himself on a tarima with his head
bandaged.
Peralta's declarations do not inspire belief. The impressive array of prosecution witnesses who saw him actively
participate in the killing of the three victims pointed to him as the aggressor, not the aggrieved. Pineda, Marayoc and
Sauza positively identified him as one of the assailants of Carriego. Contrary to the pretensions of Peralta, Carriego
an alleged "Sigue-Sigue" member, would not have attacked him, knowing fully well that Building No. 4 was an
"OXO" lair where the "Sigue-Sigue" members were outnumbered. Anent the killing of Barbosa and Santos Cruz,
Peralta failed to offer any explicit defense to rebut the inculpatory declarations of prosecution witnesses Pabarlan
and Espino who saw him participate in the killing of Barbosa and those of Halili, Fontillas and Espino who identified
him as one of the murderers of Santos Cruz.
For his part, Leonardo Dosal stated that he killed Santos Cruz, but also claims self-defense in exculpation. He
declared that Santos Cruz, Jose Carriego, Juanita Espino, Carlos Espino and Oscar Fontillas invaded 4-A where he
was confined; that a free-for-all forthwith ensued; that he then heard Santos Cruz call Carlos Espino, and advise the
latter to go away as "I will be the one to kill that person (Dosal);" that with a sharp instrument, Cruz hit him on the
head and then on the nose; that as Cruz was about to hit him again, he got hold of his ice pick and stabbed Cruz
repeatedly until the latter fell.
Dosal's avowal is clearly belied by the positive testimonies of Pabarlan, Halili and Espino who saw him participate in
the killing of Santos Cruz. If it is true that Dosal killed Santos Cruz in self-defense when the latter together with his
companions supposedly invaded Dosal's brigade (4-A), why is it that the body of Santos Cruz was found at the fire
escape near the pasillo between 4-C and 4-D of the first floor of Bldg. 1 instead of in 4-A which is located in the
upper floor? Moreover, Dosal failed to explain why he was seen in 4-C, which he does not deny, since he was an
inmate of 4-A where he was allegedly attacked. With respect to the murder of Carriego and Barbosa with which
Dosal was also charged, he did not offer any evidence in his behalf. Hence, the testimonies of Pineda, Marayoc and
Sauza identifying him as one of the killers of Carriego and those of Pabarlan, Halili and Espino implicating him in the
death of Santos Cruz, stand unrebutted.
Andres Factora declared that he clubbed Carriego and Santos Cruz under compulsion of his co-accused who
threatened to kill him if he disobeyed their order; that he did not hit Barbosa anymore because the latter was already
dead; that it was his co-accused who actually killed the three victims. Again, the declarations of the prosecution
witnesses, which were accorded full credence by the trial court, expose the guilt of Factora beyond reasonable
doubt. In fact, according to Pineda, whose testimony was corroborated by Marayoc, it was Factora who started the

mass assault by clubbing Carriego treacherously. Fontillas, Halili, Pabarlan and Espino pointed to Factora as one of
the killers of Barbosa, while at least three prosecution witnesses, namely, Pabarlan, Fontillas and Espino, saw
Factora participate in the slaying of Santos Cruz. The active participation of Factora in the killing, which is clear
index of voluntariness, thus negates his claim of compulsion and fear allegedly engendered by his co-accused.
Angel Parumog, Gervasio Larita and Florencio Luna take refuge in the exculpatory device of alibi. Parumog testified
that he did not participate in the killing of the three inmates because he stayed during that entire hapless day in the
office of the trustees for investigation after the fight in the plaza; that he was implicated in the killing by the
prosecution witnesses because of his refusal to accede to their request to testify against his co-accused; that he is
not a Visayan but a Tagalog from Nueva Ecija. Larita claims that he did not know about the killing until he was
informed that three inmates had died; that on the day in question he was brought to the police trustee brigade for
investigation after the incident in the plaza; that he was escorted back to his brigade only in the afternoon. Luna
likewise disclaims any knowledge of the killing and asserts that for the entire duration of the riot he remained in his
cell (brigade 4-A).
The alibis of Parumog, Larita and Luna merit no credence when set against the positive testimonies of prosecution
witness identifying them as participants in the killing of Barbosa and Santos Cruz. Pabarlan, Espino and Fontillas
declared that Larita was one of the killers of Barbosa; Espino and Fontillas declared that they saw Larita kill Santos
Cruz; Pabarlan, Halili and Espino testified that they saw Parumog participate in the murder of Barbosa; Espino,
Fontillas and Pabarlan stated that Parumog took part in the killing of Santos Cruz. Pabarlan and Halili declared that
Luna participated in the fatal assault on Barbosa and Santos Cruz.
The alibis of the accused are thus sufficiently overcome by strong evidence to the contrary. The defense of alibi is
generally weak since it is easy to concoct. For this reason, courts view it with no small amount of caution, and
accept it only when proved by positive, clear and satisfactory evidence. 6 In the case at bar, if Parumog and Larita
were really confined in the police trustee brigade for investigation on the day of the incident, there should have been
a record of the alleged investigation. But none was presented. The testimony of Luna that throughout the riot he
stayed in his cell is quite unnatural. He claims that he did not even help his cellmates barricade their brigade
with tarimas in order to delay if not prevent the entry of the invading inmates. According to him, he "just waited in
one corner."
The rule is settled that the defense of alibi is worthless in the face of positive identification by prosecution witnesses
pointing to the accused as particeps criminis.7 Moreover, the defense of alibi is an issue of fact the resolution of
which depends almost entirely on the credibility of witnesses who seek to establish it. In this respect the relative
weight which the trial judge accords to the testimony of the witnesses must, unless patently inconsistent without
evidence on record, be accepted.8 In the case at bar, the trial court, in dismissing the alibis of Parumog, Larita and
Luna, said that "their mere denial cannot prevail over the positive testimony of the witnesses who saw them
participate directly in the execution of the conspiracyto kill Barbosa, Carriego and Santos Cruz."
The killing of Carriego constitutes the offense of murder because of the presence of treachery as a qualifying
circumstance: Carriego was clubbed by Factora from behind, and as he lay prostrate and defenseless, Peralta and
Dosal stabbed him repeatedly on the chest. The blow on the nape and the penetrating chest wounds were all fatal,
according to Dr. Bartolome Miraflor. Abuse of superior strength qualified the killing of Barbosa and Santos Cruz to
the category of murder. The victims, who were attacked individually were completely overwhelmed by their
assailants' superiority in number and weapons and had absolutely no chance at all to repel or elude the attack. All
the attackers were armed with clubs or sharp instruments while the victims were unarmed, as so found by the trial
court. In fact, Halili testified that Barbosa was clubbed and stabbed to death while he was trying to hide under a cot,
and Santos Cruz was killed while he was on his knees pleading for his life.
The essential issue that next confronts us is whether conspiracy attended the commission of the murders. The
resolution of this issue is of marked importance because upon it depends the quantity and quality of the penalties
that must be imposed upon each of the appellants.
For this purpose, it is not amiss to briefly restate the doctrine on conspiracy, with particular emphasis on the facets
relating to its nature, the quantum of proof required, the scope and extent of the criminal liability of the conspirators,
and the penalties imposable by mandate of applicable law.
Doctrine. A conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. 9 Generally, conspiracy is not a crime except when the law specifically provides a
penalty therefor as in treason,10 rebellion11 and sedition.12 The crime of conspiracy known to the common law is not
an indictable offense in the Philippines. 13 An agreement to commit a crime is a reprehensible act from the view-point
of morality, but as long as the conspirators do not perform overt acts in furtherance of their malevolent design, the
sovereignty of the State is not outraged and the tranquility of the public remains undisturbed. However, when in
resolute execution of a common scheme, a felony is committed by two or more malefactors, the existence of a

conspiracy assumes pivotal importance in the determination of the liability of the perpetrators. In stressing the
significance of conspiracy in criminal law, this Court in U.S. vs. Infante and Barreto14 opined that
While it is true that the penalties cannot be imposed for the mere act of conspiring to commit a crime unless
the statute specifically prescribes a penalty therefor, nevertheless the existence of a conspiracy to commit a
crime is in many cases a fact of vital importance, when considered together with the other evidence of
record, in establishing the existence, of the consummated crime and its commission by the conspirators.
Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals regardless of the
extent and character of their respective active participation in the commission of the crime or crimes perpetrated in
furtherance of the conspiracy because in contemplation of law the act of one is the act of all.15 The foregoing rule is
anchored on the sound principle that "when two or more persons unite to accomplish a criminal object, whether
through the physical volition of one, or all, proceeding severally or collectively, each individual whose evil will
actively contributes to the wrong-doing is in law responsible for the whole, the same as though performed by himself
alone."16 Although it is axiomatic that no one is liable for acts other than his own, "when two or more persons agree
or conspire to commit a crime, each is responsible for all the acts of the others, done in furtherance of the
agreement or conspiracy."17 The imposition of collective liability upon the conspirators is clearly explained in one
case18 where this Court held that
... it is impossible to graduate the separate liability of each (conspirator) without taking into consideration the
close and inseparable relation of each of them with the criminal act, for the commission of which they all
acted by common agreement ... The crime must therefore in view of the solidarity of the act and intent which
existed between the ... accused, be regarded as the act of the band or party created by them, and they are
all equally responsible ...
Verily, the moment it is established that the malefactors conspired and confederated in the commission of the felony
proved, collective liability of the accused conspirators attaches by reason of the conspiracy, and the court shall not
speculate nor even investigate as to the actual degree of participation of each of the perpetrators present at the
scene of the crime. Of course, as to any conspirator who was remote from the situs of aggression, he could be
drawn within the enveloping ambit of the conspiracy if it be proved that through his moral ascendancy over the rest
of the conspirators the latter were moved or impelled to carry out the conspiracy.
In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime amply justifies
the imputation to all of them the act of any one of them. It is in this light that conspiracy is generally viewed not as a
separate indictable offense, but a rule for collectivizing criminal liability.
The ensnaring nature of conspiracy is projected in bold relief in the cases of malversation and rape committed in
furtherance of a common design.
The crime of malversation is generally committed by an accountable public officer who misappropriates public funds
or public property under his trust. 19 However, in the classic case of People vs. Ponte20 this Court unequivocally held
that a janitor and five municipal policemen, all of whom were not accountable public officers, who conspired and
aided a municipal treasurer in the malversation of public funds under the latter's custody, were principally liable with
the said municipal treasurer for the crime of malversation. By reason of conspiracy, the felonious act of the
accountable public officer was imputable to his co-conspirators, although the latter were not similarly situated with
the former in relation to the object of the crime committed. Furthermore, in the words of Groizard, "the private party
does not act independently from the public officer; rather, he knows that the funds of which he wishes to get
possession are in the latter's charge, and instead of trying to abstract them by circumventing the other's vigilance he
resorts to corruption, and in the officer's unfaithfulness seeks and finds the most reprehensible means of
accomplishing a deed which by having a public officer as its moral instrument assumes the character of a social
crime."21 In an earlier case22 a non-accountable officer of the Philippine Constabulary who conspired with his
superior, a military supply officer, in the malversation of public funds was adjudged guilty as co-principal in the crime
of malversation, although it was not alleged, and in fact it clearly appeared, that the funds misappropriated were not
in his custody but were under the trust of his superior, an accountable public officer.
In rape, a conspirator is guilty not only of the sexual assault he personally commits but also of the separate and
distinct crimes of rape perpetrated by his co-conspirators. He may have had carnal knowledge of the offended
woman only once but his liability includes that pertaining to all the rapes committed in furtherance of the conspiracy.
Thus, in People vs. Villa,23 this Court held that
... from the acts performed by the defendants front the time they arrived at Consolacion's house to the
consummation of the offense of rape on her person by each and everyone of them, it clearly appears that
they conspired together to rape their victim, and therefore each one is responsible not only for the rape
committed personally by him, but also that committed by the others, because each sexual intercourse had,
through force, by each one of the defendants with the offended was consummated separately and

independently from that had by the others, for which each and every one is also responsible because of the
conspiracy.
The rule enunciated in People vs. Villa was reiterated in People vs. Quitain24 where the appellant Teofilo Anchita was
convicted of forcible abduction with double rape for having conspired and cooperated in the sexual assault of the
aggrieved woman, although he himself did not actually rape the victim. This Court observed:
We have no doubt all in all that Teofilo Anchita took part in the sexual assault ... the accused inserted his
fingers in the woman's organ, and widened it. Whether he acted out of lewdness or to help his brother-in-law
consummate the act, is immaterial; it was both maybe. Yet, surely, by his conduct, this prisoner conspired
and cooperated, and is guilty.
With respect to robbery in band, the law presumes the attendance of conspiracy so much so that "any member of a
band who is present at the commission of a robbery by the band, shall be punished as principal of any of the
assaults committed by the band, unless it be shown that he attempted to prevent the same." 25 In this instance,
conspiracy need not be proved, as long as the existence of a band is clearly established. Nevertheless, the liability
of a member of the band for the assaults committed by his group is likewise anchored on the rule that the act of one
is the act of all.
Proof of conspiracy. While conspiracy to commit a crime must be established by positive evidence, 26 direct proof is
not essential to show conspiracy.27 Since by it nature, conspiracy is planned in utmost secrecy, it can seldom be
proved by direct evidence.28 Consequently, competent and convincing circumstantial evidence will suffice to
establish conspiracy. According to People vs. Cabrera,29 conspiracies are generally proved by a number of indefinite
acts, conditions, and circumstances which vary according to the purposes to be accomplished. If it be proved that
the defendants pursued by their acts the same object, one performing one part and another another part of the
same, so as to complete it, with a view to the attainment of the same object, one will be justified in the conclusion
that they were engaged in a conspiracy to effect the object." Or as elucidated in People vs. Carbonel30the presence
of the concurrence of minds which is involved in conspiracy may be inferred from "proofs of facts and circumstances
which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two
or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so
that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of
personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting
among to concert means is proved ..." In two recent cases, 31 this Court ruled that where the acts of the accused,
collectively and individually, clearly demonstrate the existence of a common design toward the accomplishment of
the same unlawful purpose, conspiracy is evident.
Conspiracy presupposes the existence of a preconceived plan or agreement; however, to establish conspiracy, "it is
not essential that there be proof as to previous agreement to commit a crime, it being sufficient that the malefactors
committed shall have acted in concert pursuant to the same objective." 32 Hence, conspiracy is proved if there is
convincing evidence to sustain a finding that the malefactors committed an offense in furtherance of a common
objective pursued in concert.
Liability of conspirators. A time-honored rule in the corpus of our jurisprudence is that once conspiracy is proved, all
of the conspirators who acted in furtherance of the common design are liable as co-principals. 33 This rule of
collective criminal liability emanates from the ensnaring nature of conspiracy. The concerted action of the
conspirators in consummating their common purpose is a patent display of their evil partnership, and for the
consequences of such criminal enterprise they must be held solidarity liable.
However, in order to hold an accused guilty as co-principal by reason of conspiracy, it must be established that he
performed an overt act in furtherance of the conspiracy, either by actively participating in the actual commission of
the crime, or by lending moral assistance to his co-conspirators by being present at the scene of the crime, or by
exerting moral ascendancy over the rest of the conspirators as to move them to executing the conspiracy. The
difference between an accused who is a principal under any of the three categories enumerated in Art. 17 of the
Revised Penal Code and a co-conspirator who is also a principal is that while the former's criminal liability is limited
to his own acts, as a general rule, the latter's responsibility includes the acts of his fellow conspirators.
In People vs. Izon, et al.,34 this Court acquitted appellant Francisco Robles, Jr., who was convicted by the trial court
of robbery with homicide as a conspirator, on the ground that although he may have been present when the
conspiracy to rob was proposed and made, "Robles uttered not a word either of approval or disapproval. There are
authorities to the effect that mere presence at the discussion of a conspiracy, even approval of it, without any active
participation in the same, is not enough for purposes of conviction." In a more recent case, 35this Court, in
exonerating one of the appellants, said:
There is ample and positive evidence on record that appellant Jose Guico was absent not only from the
second meeting but likewise from the robbery itself. To be sure, not even the decision under appeal

determined otherwise. Consequently, even if Guico's participation in the first meeting sufficiently involved
him with the conspiracy (as he was the one who explained the location of the house to be robbed in relation
to the surrounding streets and the points thereof through which entrance and exit should be effected), such
participation and involvement, however, would be inadequate to render him criminally liable as a conspirator.
Conspiracy alone, without the execution of its purpose, is not a crime punishable by law, except in special
instances (Article 8, Revised Penal Code) which, however, do not include robbery.
Imposition of multiple penalties where conspirators commit more than one offense. Since in conspiracy, the act of
one is the act of all, then, perforce, each of the conspirators is liable for all of the crimes committed in furtherance of
the conspiracy. Consequently, if the conspirators commit three separate and distinct crimes of murder in effecting
their common design and purpose, each of them is guilty of three murders and shall suffer the corresponding
penalty for each offense. Thus in People vs. Masin,36 this Court held:
... it being alleged in the information that three crimes were committed not simultaneously indeed but
successively, inasmuch as there was, at least, solution of continuity between each other, the accused
(seven in all) should be held responsible for said crimes. This court holds that the crimes are murder ... In
view of all these circumstances and of the frequently reiterated doctrine that once conspiracy is proven each
and every one of the conspirators must answer for the acts of the others, provided said acts are the result of
the common plan or purpose ... it would seem evident that the penalty that should be imposed upon each of
the appellants for each of their crimes should be the same, and this is the death penalty ... (emphasis
supplied).
In the aforesaid case, however, the projected imposition of three death penalties upon each of the conspirators for
the three murders committed was not carried out due to the lack of the then requisite unanimity in the imposition of
the capital penalty.
In another case,37 this Court, after finding that conspiracy attended the commission of eleven murders, said through
Mr. Justice Tuason:
Some members of this Court opine that the proper penalty is death, under the circumstances of the case,
but they fall short of the required number for the imposition of this punishment. The sentence consequently
is reclusion perpetua; but each appellant is guilty of as many crimes of murder as there were deaths
(eleven) and should be sentenced to life imprisonment for each crime, although this may be a useless
formality for in no case can imprisonment exceed forty years. (Emphasis supplied.)
In People vs. Masani,38 the decision of the trial court imposing only one life imprisonment for each of the accused
was modified by this Court on appeal on the ground that "inasmuch as their (the conspirators') combined attack
resulted in the killing of three persons, they should be sentenced to suffer said penalty ( reclusion perpetua) foreach
of the three victims (crimes)." (Emphasis supplied.)
It is significant to note that in the abovementioned cases, this Court consistently stressed that once conspiracy is
ascertained, the culpability of the conspirators is not only solidary (all co-principals) but also multiple in relation to
the number of felonies committed in furtherance of the conspiracy. It can also be said that had there been a
unanimous Court in the Masin and Macaso cases, multiple death penalties would have been imposed upon all the
conspirators.
Legality and practicality of imposing multiple death penalties upon conspirators. An accused who was charged with
three distinct crimes of murder in a single information was sentenced to two death penalties for two murders, 39 and
another accused to thirteen (13) separate death penalties for the 13 killings he perpetrated. 40Therefore there
appears to be no legal reason why conspirators may not be sentenced to multiple death penalties corresponding to
the nature and number of crimes they commit in furtherance of a conspiracy. 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.
The rule on the imposition of multiple penalties where the accused is found guilty of two or more separate and
distinct crimes charged in one information, the accused not having interposed any objection to the multiplicity of the
charges, was enunciated in the leading case of U.S. vs. Balaba,41 thus: Upon conviction of two or more offenses
charged in the complaint or information, the prescribed penalties for each and all of such offenses may be imposed,
to be executed in conformity with the provisions of article 87 of the Penal Code [now article 70 of the Revised Penal
Code]. In other words, all the penalties corresponding to the several violations of law should be imposed. Conviction
for multiple felonies demands the imposition of multiple penalties.
The two conceptual exceptions to the foregoing rule, are the complex crime under article 48 of the Revised Penal
Code and the special complex crime (like robbery with homicide). Anent an ordinary complex crime falling under

article 48, regardless of the multiplicity of offenses committed, there is only one imposable penalty the penalty for
the most serious offense applied in its maximum period. Similarly, in special complex crimes, there is but a single
penalty prescribed by law notwithstanding the number of separate felonies committed. For instance, in the special
complex crime of robbery with hommicide the imposible penalty is reclusion perpetua to death42irrespective of the
number of homicides perpetrated by reason or on occasion of the robbery.
In Balaba, the information charged the accused with triple murder. The accused went to trial without objection to the
said information which charged him with more than one offense. The trial court found the accused guilty of two
murders and one homicide but it imposed only one death penalty. In its review en consulta, this Court modified the
judgment by imposing separate penalties for each of the three offenses committed. The Court, thru Mr. Justice
Carson (with Mr. Justice Malcolm dissenting with respect to the imposition of two death penalties), held:
The trial judge was erroneously of the opinion that the prescribed penalties for the offenses of which the
accused was convicted should be imposed in accord with the provisions of article 89 of the Penal Code.
That article is only applicable to cases wherein a single act constitutes two or more crimes, or when one
offense is a necessary means for committing the other. (U.S. vs. Ferrer, 1 Phil. Rep., 56)
It becomes our duty, therefore, to determine what penalty or penalties should have been imposed upon the
accused upon conviction of the accused of three separate felonies charged in the information.
There can be no reasonable doubt as to the guilt of the convict of two separate crimes of asesinato(murder)
marked with the generic aggravating circumstances mentioned in the decision of the trial judge ... It follows
that the death penalty must and should be imposed for each of these offenses ...
Unless the accused should be acquitted hereafter on appeal of one or both the asesinatos with which he is
charged in the information, it would seem to be a useless formality to impose separate penalties for each of
the offenses of which he was convicted, in view of the nature of the principal penalty; but having in mind the
possibility that the Chief Executive may deem it proper to grant a pardon for one or more of the offenses
without taking action on the others; and having in mind also the express provisions of the above cited article
87 of the Penal Code, we deem it proper to modify the judgment entered in the court below by substituting
for the penalty imposed by the trial judge under the provisions of article 89 of the Code, the death penalty
prescribed by law for each of the two separate asesinatos of which he stands convicted, and the penalty of
14 years, 8 months and 1 day of reclusion temporal (for the separate crime of homicide) ... these separate
penalties to be executed in accord with the provisions of article 87 of the Penal Code. (Emphasis supplied.)
The doctrine in Balaba was reiterated in U.S. vs. Jamad43 where a unanimous Court, speaking again thru Mr. Justice
Carson (with Mr. Justice Malcolm concurring in the result in view of the Balaba ruling), opined:
For all the offenses of which the accused were convicted in the court below, the trial judge imposed the
death penalty, that is to say the penalty prescribed for the most serious crime committed, in its maximum
degree, and for this purpose made use of the provisions of article 89 of the Penal Code [now article 48 of the
Revised Penal Code]. But as indicated in the case of the United States vs. Balaba, recently decided wherein
the controlling facts were substantially similar to those in the case at bar, "all of the penalties corresponding
to the several violations of law" should have been imposed under the express provisions of article 87 [now
engrafted in article 70 of the Revised Penal Code] and under the ruling in that case, the trial court erred in
applying the provision of article 89 of the code.
We conclude that the judgment entered in the court below should be reversed, ... and that the following
separate penalties should be imposed upon him [the accused Jamad], to be executed in accordance with
article 87 of the Penal Code: (1) The penalty of death for the parricide of his wife Aring; (2) the penalty of life
imprisonment for the murder of Labonete; (3) the penalty of life imprisonment for the murder of Torres; (4)
the penalty of 12 years and one day of cadena temporal for the frustrated murder of Taclind ...
The doctrine in Balaba was reechoed in People vs. Guzman,44 which applied the pertinent provisions of the Revised
Penal Code, where this Court, after finding the accused liable as co-principals because they acted in conspiracy,
proceeded to stress that where an "information charges the defendants with the commission of several crimes of
murder and frustrated murder, as they failed to object to the multiplicity of the charges made in the information, they
can be found guilty thereof and sentenced accordingly for as many crimes the information charges them , provided
that they are duly established and proved by the evidence on record." (Emphasis supplied.)
The legal and statutory justification advanced by the majority in Balaba for imposing all the penalties (two deaths
and one life imprisonment) corresponding to the offense charged and proved was article 87 of the old Penal Code
which provided:

When a person is found guilty of two or more felonies or misdemeanors, all the penalties corresponding to
the several violations of law shall be imposed, the same to be simultaneously served, if possible, according
to the nature and effects of such penalties.
in relation to article 88 of the old Code which read:
When all or any of the penalties corresponding to the several violations of the law can not be simultaneously
executed, the following rules shall be observed with regard thereto:
1. In the imposition of the penalties, the order of their respective severity shall be followed so that they may
be executed successively or as nearly as may be possible, should a pardon have been granted as to the
penalty or penalties first imposed, or should they have been served out.
The essence and language, with some alterations in form and in the words used by reason of style, of the abovecited provisions have been preserved in article 70 of the Revised Penal Code which is the product of the merger of
articles 87 and 88 of the old Penal Code. Article 70 provides:
When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the
penalties will so permit; otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective severity shall be followed so that they may be
executed successively or as nearly as may be possible, should a pardon have been granted as to the
penalty or penalties first imposed, or should they have been served out.
Although article 70 does not specifically command, as the former article 87 clearly did, that "all the penalties
corresponding to the several violations of law shall be imposed," it is unmistakable, however, that article 70
presupposes that courts have the power to impose multiple penalties, which multiple penal sanctions should be
served either simultaneously or successively. This presumption of the existence of judicial power to impose all the
penalties corresponding to the number and nature of the offenses charged and proved is manifest in the opening
sentence of article 70: "When the culprit has to serve two or more penalties, he shall serve them simultaneously if
the nature of the penalties will so permit ..." (Emphasis supplied.) Obviously, the two or more penalties which the
culprit has to serve are those legally imposed by the proper court. Another reference to the said judicial prerogative
is found in the second paragraph of article 70 which provides that "in the imposition of the penalties, the order of
their respective severity shall be followed ..." Even without the authority provided by article 70, courts can still
impose as many penalties as there are separate and distinct offenses committed, since for every individual crime
committed, a corresponding penalty is prescribed by law. Each single crime is an outrage against the State for
which the latter, thru the courts ofjustice, has the power to impose the appropriate penal sanctions.
With respect to the imposition of multiple death penalties, there is no statutory prohibition or jurisprudential
injunction against it. On the contrary, article 70 of the Revised Penal Code presumes that courts have the power to
mete out multiple penalties without distinction as to the nature and severity of the penalties. Moreover, our
jurisprudence supports the imposition of multiple death penalties as initially advocated in Balaba and thunderously
reechoed in Salazar where the accused was sentenced on appeal to thirteen (13) death penalties. Significantly, the
Court in Balaba imposed upon the single accused mixed multiple penalties of two deaths and one life imprisonment.
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 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 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 modes 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 a 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.
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 of 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.
Reverting now to the case at bar, it is our considered view that the trial court correctly ruled that conspiracy attended
the commission of the murders. We quote with approval the following incisive observations of the court a quo in this
respect:
Although, there is no direct evidence of conspiracy, the Court can safely say that there are several
circumstances to show that the crime committed by the accused was planned. The following circumstances
show beyond any doubt the acts of conspiracy: First, all those who were killed, Barbosa, Santos Cruz and
Carriego, were Tagalogs. Although there were many Tagalogs like them confined in Building 4, these three
were singled out and killed thereby showing that their killing has been planned. Second, the accused were
all armed with improvised weapons showing that they really prepared for the occasion. Third, the accused
accomplished the killing with team work precision going from one brigade to another and attacking the same
men whom they have previously marked for liquidation and lastly, almost the same people took part in the
killing of Carriego, Barbosa and Santos Cruz.
It is also important to note that all the accused were inmates of brigade 4-A; that all were from either the Visayas or
Mindanao except Peralta who is from Masbate and Parumog who hails from Nueva Ecija; that all were either "OXO"
members or sympathizers; and that all the victims were members of the "Sigue-Sigue" gang.
The evidence on record proves beyond peradventure that the accused acted in concert from the moment they
bolted their common brigade, up until the time they killed their last victim, Santos Cruz. While it is true that Parumog,
Larita and Luna did not participate in the actual killing of Carriego, nonetheless, as co-conspirators they are equally
guilty and collectively liable for in conspiracy the act of one is the act of all. It is not indispensable that a coconspirator should take a direct part in every act and should know the part which the others have to perform.
Conspiracy is the common design to commit a felony; it is not participation in all the details of the execution of the
crime. All those who in one way or another help and cooperate in the consummation of a felony previously planned
are co-principals.45 Hence, all of the six accused are guilty of the slaughter of Carriego, Barbosa and Santos Cruz
each is guilty of three separate and distinct crimes of murder.
We cannot agree, however, with the trial court that evident premeditation was also present. The facts on record and
the established jurisprudence on the matter do not support the conclusion of the court a quo that evident
premeditation "is always present and inherent in every conspiracy." Evident premeditation is not inherent in
conspiracy as the absence of the former does not necessarily negate the existence of the latter. 46 Unlike in evident
premeditation where a sufficient period of time must elapse to afford full opportunity for meditation and reflection for
the perpetrator to deliberate on the consequences of his intended deed, conspiracy arises at the very instant the
plotters agree, expressly or impliedly, to commit the felony and forthwith decide to commit it. 47This view finds added
support in People vs. Custodia,48 wherein this Court stated:
Under normal conditions, where the act of conspiracy is directly established, with proof of the attendant
deliberation and selection of the method, time and means of executing the crime, the existence of evident
premeditation can be taken for granted. In the case before us, however, no such evidence exists; the
conspiracy is merely inferred from the acts of the accused in the perpetration of the crime. There is no proof
how and when the plan to kill Melanio Balancio was hatched, or what time elapsed before it was carried out;
we are, therefore, unable to determine if the appellants enjoyed "sufficient time between its inception and its
fulfillment dispassionately to consider and accept the consequences." (cf. People vs. Bangug, 52 Phil. 91.)
In other words, there is no showing of the opportunity of reflection and the persistence in the criminal intent

that characterize the aggravating circumstance of evident premeditation (People vs. Mendoza, 91 Phil. 58;
People vs. Iturriaga, 47 Off. Gaz., [Supp to No. 12] 166; People vs. Lesada 70 Phil., 525.)
Not a single extenuating circumstance could be appreciated in favor of any of the six accused, as they did neither
allege nor prove any.
In view of the attendance of the special aggravating circumstance of quasi-recidivism, as all of the six accused at
the time of the commission of the offenses were serving sentences 49 in the New Bilibid Prison at Muntinlupa by
virtue of convictions by final judgments the penalty for each offense must be imposed in its maximum period, which
is the mandate of the first paragraph of article 160 of the Revised Penal Code. Viada observes, in apposition, that
the severe penalty imposed on a quasi-recidivist is justified because of his perversity and incorrigibility.50
ACCORDINGLY, the judgment a quo is hereby modified as follows: Amadeo Peralta, Andres Factora, Leonardo
Dosal, Angel Parumog, Gervasio Larita and Florencio Luna are each pronounced guilty of three separate and
distinct crimes of murder, and are each sentenced to three death penalties; all of them shall, jointly and severally,
indemnify the heirs of each of the three deceased victims in the sum of P12,000; 51 each will pay one-sixth of the
costs.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 117267-117310 August 22, 1996
GENEROSO N. SUBAYCO, ALFREDO T. ALCALDE, and ELEUTERIO O. IBAEZ, petitioners,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

PUNO, J.:p
The year was 1985, the month, September. The Marcos government was fast sliding into its sunset days. Yet, it was
again set to celebrate with pomp, September 21, the day it proclaimed martial law some thirteen (13) years ago. The
people, however, were not in the mood to be joyous. They planned massive public protests in different parts of the
country. One of the biggest protest rallies was blueprinted as a Welga ng Bayan at Escalante, Negros Occidental. It
ended in tragedy which will not easily recede in the mist of our history. Twenty (20) demonstrators were shot dead
and twenty-four (24) others were wounded by the military and para-military forces of the Marcos government. Of
several persons charged with various counts of murder and frustrated murder, only three (3) were convicted
Generoso N. Subayco, Alfredo T. Alcalde and Eleuterio O. Ibaez were convicted by the
respondent Sandiganbayan. They now come to this Court insisting on their innocence and pleading to be set free.
We deny their petition and we warn our military and police authorities that they cannot shoot people who are
exercising their right to peacefully assemble and petition the government for redress of grievance. 1
As aforestated, twenty (20) demonstrators were killed and twenty-four (24) others were seriously wounded by
gunshots during the Welga ng Bayan held on September 20, 1985 at Escalante, Negros Occidental. Twenty (20)
counts of Murder and twenty-four (24) counts of Frustrated Murder 2 were filed with respondent Sandiganbayanagainst
those allegedly responsible for the death and injuries of the victims. Charged were several civilian government officials,
personnel from the Philippine Constabulary and the Integrated National Police, and from the para-military group Civilian
Home Defense Force (CHDF), namely:
1. Ex-Mayor Braulio P. Lumayno,
2. Ex-Governor Armando C. Gustilo, 3
3. Danilo "Nonoy" Jimenez,
4. Capt. Modesto E. Sanson, Jr.,
5. C1C Alfredo T. Alcalde,
6. C1C Eleuterio O. Ibaez,
7. C2C Rufino L. Lerado,
8. C2C Carlos L. Santiago,
9. T/Sgt. Generoso N. Subayco,
10. S/Sgt. Quirino L. Amar,
11. Sgt. Rolando A. Braa,
12. P/Capt. Rafael C. Jugan,
13. P/Pfc. Mariano C. Juarez, Jr.,
14. P/Pfc. Alfonso Birao,
15. P/Pfc. Wilfredo Carreon,
16. P/Pfc. Rogelio Pea,
17. P/Pfc. Iluminado D. Guillen,
18. Pat. Ludovico Cajurao,
19. Pat. Luisito T. Magalona,
20. Pat. Alex Francisco M. Liguaton,
21. Pat. Porfirio Q. Sypongco,
22. Pat. Prudencio M. Panagsagan,
23. Pat. Danilo P. Antones,
24. Pat. Elmer Sinadjan,
25. Pat. Grant L. Batomalaque,
26. Pat. Lino F. Mercado,
27. F/Cpl. Casimiro Pandongan,
28. Fmn. Gene Legaspina,
29. Fmn. Giomar D. Gale,
30. Fmn. Edwin T. Gustilo,
31. Fmn. Joel B. Rosal,
32. Chdf Teddy Magtubo,
33. Chdf Elias Torias,
34. Chdf Jose "Boy" Parcon,
35. Chdf Jeremias Villanueva,
36. Chdf Dante P. Diaz,
37. Chdf Amador O. Villa,
38. Chdf Antonio A. Caete,
39. Chdf Jimmy Mayordomo,
40. Chdf Jerry L. Espinosa,
41. Chdf Francisco A. Morante,
42. Chdf Bernie C. Muoz,
43. Chdf Ernesto V. Olaera,
44. Chdf Dione L. Sesbreno, and
45. Chdf Alfredo A. Quinatagcan alias Pidong Bagis.

All of the accused were part of the police-military group which undertook the dispersal operation during the
rally.
Only twenty-eight (28) of the above accused were arrested and tried as the others remained at large. The twentyeight (28) were all members of the Philippine Constabulary and the Integrated National Police, viz.:
1. Modesto Sanson,
2. Alfredo Alcalde,
3. Eleuterio Ibaez,
4. Rufino Lerado,
5. Carlos Santiago,
6. Generoso Subayco,
7. Quirino Amar,
8. Rolando Braa,
9. Rafael Jugan,
10. Mariano Juarez,
11. Alfonso Birao,
12. Wilfredo Carreon
13. Rogelio Pea,
14. Iluminado Guillen,
15. Ludovico Cajurao,
16. Luisito Magalona,
17. Alex Francisco Liguaton,
18. Porfirio Sypongco,
19. Prudencio Panagsagan,
20. Danilo Antones,
21. Elmer Sinadjan,
22. Grant Batomalaque,
23. Casimiro Pandongan,
24. Gene Legaspina,
25. Socrates Jarina,
26. Giomar Gale,
27. Edwin Gustilo, and
28. Joel Rosal.
Upon conclusion of the trial, respondent court acquitted all the accused except petitioners Alfredo Alcalde,
Eleuterio Ibaez and Generoso Subayco. The dispositive portion of the Decision held:
WHEREFORE, for all the foregoing, the Court finds the evidence against the following accused to be
insufficient to establish their liability in the instant charges and therefore ACQUITS them in all the
herein cases:
1. Modesto Sanson
2. Rufino Leado
3. Carlos Santiago
4. Quirino Amar
5. Rolando Braa
6. Rafael Jugan
7. Mariano Juarez
8. Alfonso Birao
9. Wilfredo Carreon
10. Rogelio Pea
11. Iluminado Guillen
12. Ludivico Cajurao
13. Luisito Magalona
14. Alex Franscisco Liguaton
15. Porfirio Sypongco
16. Prudencio Panagsagan
17. Danilo Antones
18. Elmer Sinadjan
19. Grant Batomalaque
20. Casimiro Pandongan
21. Gene Legaspina
22. Socrates Jarina
23. Giomar Gale

24. Edwin Gustilo

25. Joel Rosal, and
26. Francisco Morante.
The same evidence, however, has established the guilt beyond reasonable doubt of the following
accused who stood trial:
1. Alfredo Alcalde
2. Aleuterio Ibaez, and
3. Generoso Subayco
and the Court hereby renders judgment CONVICTING them and imposing upon them the
corresponding penalties, to wit:
A. FOR MURDER in the following Criminal Cases:
of Rodolfo Montealto in No. 12063
of Claro Monares in No. 12064
of Edgardo Salili in No. 12065
of William Alegre in No. 12066
of Rovena Franco in No. 12067
of Cesar Tejones in No. 12067
of Juvely Jaravelo in No. 12070
of Rodney Demigilio in No. 12071
of Manuel Tan in No. 12072
of Michael Dayanan in No. 12073
of Maria Luz Mondejar in No. 12074
of Aniano Ornopia in No. 12076
of Nenita Orot in No. 12077
of Johnny Suarez in No. 12078
of Ronilo Sta. Ana in No. 12080
of Angelina Lape in No. 12081
1) imprisonment for an indeterminate period ranging from a minimum
ofseventeen (17) years and one (1) day of reclusion temporal to a
maximum of reclusion perpetua for EACH of the above sixteen cases;
2) to jointly pay indemnity to the heirs for the death of the above
mentioned victims at P50,000.00 for each victim, or a total of
P800,000.00;
3) to jointly pay moral damages to the heirs of the above victims at
P20,000.00 for each victim of a total of P320,000.00;
B. FOR FRUSTRATED MURDER for the injuries sustained under the following Criminal Cases:
No. 12039 by Buenaventura Jaravelo
No. 12041 by Alejandro Bocabal
No. 12042 by Elias Hermogenes
No. 12046 by Luvimin Leones
No. 12047 by Gloven Gabrido
No. 12051 by Henry Sernal
No. 12053 by Virgirita Mabuyao
No. 12059 by Federico Dogomeo
No. 12060 by Wenefreda Loquinario
No. 12062 by Luzviminda Gemola
1) imprisonment for an indeterminate period ranging from a minimum
ofeight (8) years and one (1) day of prision mayor to a maximum
of fourteen (14) years, ten (10) months and twenty (20)
days of reclusion temporal for EACH of the above ten (10) cases;
2) to jointly pay actual damages incurred only by the following
victims, as follows:

Alejandro Bocabal (No. 12040) P 800.00

Luzminda Gemola (No. 12062) P 700.00
or a total of P1,500.00;
no other damage having been
actually proven at trial;
3) to jointly pay moral damages to the following victims:
Buenaventura Jaravelo (No. 12039)
P 10,000.00
Alejandro Bocabal (No. 12040)
P 10,000.00
Elias Hermogenes (No. 12042)
P 10,000.00
Luvimin Leones (No. 12046)
P 10,000.00
Gloven Gabrido (No. 12047)
P 10,000.00
Henry Sernal (No. 12051)
P 10,000.00
Virginita Mabuyao (No. 12053)
P 10,000.00
Federico Dogomeo (No. 12059)
P 15,000.00
Wenefrida Loquinario (No. 12060)
P 15,000.00
Luzminda Gemola (No. 12062)
P 10,000.00
or a total of P110,000.00.
C. FOR ATTEMPTED MURDER for the injuries sustained under the following Criminal Cases:
No. 12041 of Celso Saburdo
No. 12043 of Eduardo Latosa
No. 12044 of Nelly Artajo
No. 12045 of Renato Tapel
No. 12048 of Joel Quiamco
No. 12049 of Magdalena Hemola
No. 12050 of Lucia Ravanes
No. 12052 of Ernesto Caro
No. 12054 of Renato Saratobias
No. 12055 of Elisa Zarraga
No. 12056 of Julio Iwayan
No. 12057 of Nelson Cabahug
No. 12058 of Felix Almonia
No. 12061 of Abundia Caraat-Petrano
1) imprisonment for an indeterminate period ranging from a minimum
offour (4) years, one (1) month and one (1) day of prision
correccional to a maximum of eight (8) years of prision mayor for
EACH of the above fourteen (14) cases;
2) to jointly pay actual damages incurred by the victims, as follows:
Celso Saburdo (No. 12041) P 800.00
Renato Tapel (No. 12045) P 300.00
Joel Quiamco (No. 12048) P 15,000.00
Lucia Ravanes (No. 12050) P 2,000.00
Renato Saratobias (No. 12054) P 2,000.00
Elisa Zarraga (No. 12055 P 300.00
Nelson Cabahug (No. 12057) P 2,000.00
Abundia Petrano (No. 12061) P 200.00

or a total of P22,600.00
3) to jointly pay moral damages to the victims at P5,000.00 for each
of the victims in the fourteen cases or a total of P70,000.00.
These three accused, namely, Alfredo Alcalde, Eleuterio Ibaez and Genoroso Subayco are,
however, ACQUITTED in the four murder cases (No. 12069, No. 12075, No. 12079 and No. 12082
charging the deaths of Alex Lobatos, Rodolfo Mahinay, Rogelio Magallen, Jr. and Norberto
Locanilao, respectively) for failure of the prosecution to prove their guilt beyond reasonable doubt.
LET an alias warrant of arrest issue for the following accused who, up to this time, had eluded arrest:
1. Ex-Mayor Braulio Lumayno
2. Danilo "Nonoy" Jimenez
3. Pat. Lino F. Mercado
4. CHDF Teddy G. Magtubo
5. CHDF Elias Torias
6. CHDF Jose "Boy" Parcon
7. CHDF Jeremias Villanueva
8. CHDF Dante P. Diaz
9. CHDF Amador O. Villa
10. CHDF Antonio A. Caete
11. CHDF Jimmy Mayordomo
12. CHDF Jerry L. Espinosa
13. CHDF Bernie C. Muoz
14. CHDF Ernesto V. Olaera
15. CHDF Dione L. Sebreno, and
16. CHDF Alfredo M. Quinatagcan
alias Pidong Baguis.
In the meantime, the cases with respect to the above-named accused who remain at large shall be
archived pending their arrest or voluntary submission to the jurisdiction of this Court.
SO ORDERED. 4
Petitioners now come before us by way of certiorari raising the following issues:
1. Whether respondent Sandiganbayan committed serious error of law in convicting the petitioners
based merely on alleged implied conspiracy to perpetrate the crimes charged and not on clear,
positive and convincing proof of conspiracy; and
2. Whether respondent Sandiganbayan committed serious error of law in convicting the petitioners
despite that the quantum of evidence required for a finding of guilt that is proof beyond
reasonable doubt was not satisfied. 5
The petition must fail.
The undisputed facts are summarized by the respondent court in its exhaustive Decision, as follows:
xxx xxx xxx
There was a rally held at Escalante, Negros Occidental that started on September 18, 1985. It was
planned to go on until September 21, 1985, the anniversary of the proclamation of martial law by
then President Marcos. This rally was participated in by members of the Bagong Alyansang
Makabayan or BAYAN, the National Federation of Sugar Workers, the Kristianong Katilingban, the
CYO, the KMU, the League of Filipino, Students, and others. It was spearheaded by the BAYAN
whose leader at Escalante was Rolando Ponseca.
The rally was without permit from the local authorities, although the plan was not kept secret from
them. In fact, this planned demonstration was taken up at a conference called by the Provincial
Command and attended by the accused Capt. Sanson of the 334th PC Company stationed at
Sagay, among other unit commanders. At that meeting, the operational guidelines were laid down on
how to deal with the planned demonstration as well as with contingencies in connection therewith.
The local command headed by Capt. Sanson had met with the leaders of the projected Welga ng
Bayan in order to agree on ground rules for the conduct of the rally.

The Welga ng Bayan started as scheduled on September 18, 1985. It started with a torch parade
that evening. The demonstrators came to Escalante and stayed, occupying the national highway in
front of the Rural Banf of Escalante and the other converging point at the market site. By the 20th,
the crowd was at its thickest. Estimates of the attendance therein ranged from 3,000 to 10,000.
At around noontime on that day, there were speeches delivered by speakers from among the
demonstrators using the public address system on an improvised platform, addressing the crowd
assembled in front of the Rural Bank. The crowd also shouted anti-Marcos and anti-military slogans,
among others.
Capt. Sanson had been constantly apprised of the activities of the demonstrators by reports coming
from Capt. Rafael Jugan, the Station Commander of the INP at Escalante. He was informed by the
latter that the rallyists had failed to honor their commitment not to barricade the entire portion of the
national highway so as not to obstruct traffic. He was likewise informed that the demonstrators were
collecting money from passing motorists and that the demonstrators were becoming unruly.
Capt. Sanson in turn reported these pieces of information to the Provincial Command. As he was in
charge of the area, Capt. Sanson took it upon himself to personally talk to Ponseca, when he
believed that his Station Commander had failed to get in touch with Ponseca, to remind him of his
commitment. After Ponseca had failed to effect a dispersal of the crowd or to open at least half of the
road to allow passage to vehicles, he had prepared a dispersal operation and had called fire-fighting
personnel and equipment from the towns of Sagay and Escalante, as well as from the cities of San
Carlos and Cadiz. He had also summoned his men under Capt. Jugan of the Escalante INP, the
CHDF headed by Sgt. Subayco and another team headed by Lt. Supaco.
After a last-ditch effort to peacefully disperse the crowd by Ponseca through a letter to the
demonstrators in front of the Rural Bank had failed, the dispersal operation by Capt. Sanson began.
Four firetrucks were dispatched to the crowd of demonstrators, two of them the Cadiz and
Escalante firetrucks towards the demonstrators massed in front of the Rural Bank of Escalante.
These hosed the demonstrators with water but even after the water from them had been exhausted,
the demonstrators stayed put. Capt. Sanson then ordered the throwing of teargas to the
demonstrators by two of his men, Amar and Mercado. The tear gas caused the demonstrators to lie
face down on the ground; they persisted in their places rather than disperse. Then, a single shot
rang out followed by successive gunfire from different directions. As one witness had described it, it
was like New Year's Eve (TSN, February 7, 1994, testimony of accused CHDF Morante). This firing
lasted for a few minutes.
Capt. Sanson had been heard by some of the witnesses to have shouted "Stop firing" repeatedly
and, after some time, the firing had stopped, but not soon enough for men and women, from the
rallyists' group who died and others who were wounded as a result of the gunfire. 6
It was the thesis of the prosecution that the whole dispersal operation was an unlawful conspiracy, that the firing at
the crowd was part of the dispersal operation, and that all those who took part in the dispersal operation should be
held liable for each death and each injury that resulted therefrom. 7
The accused denied the existence of conspiracy. Subayco and Ibaez claimed that they merely fired into the air but
not toward the crowd. On his part, Alcalde admitted that he fired his weapon to prevent the rallyists from climbing
the Cadiz City firetruck. 8
In its Decision, the respondent court ruled there was no sufficient evidence to prove general conspiracy of the fortyfive (45) accused as alleged by the prosecution. 9 It then examined the individual acts of the accused during the
dispersal operation to determine their liability for the death and injuries of the victims. It found implied conspiracy only on
the part of all the accused who fired at the demonstrators.
Per finding of the respondent Sandiganbayan, the firing came from the Cadiz City firetruck and the jeep which
witnesses referred to as a "weapons carrier". After the rallyists were hosed with water, the Cadiz City firetruck
attempted to move back, but was trapped by the logs and rocks ostensibly put by the rallyists under its wheels. The
"weapons carrier" was then maneuvered behind the Cadiz City firetruck. Thereafter, teargas canisters were lobbed
at the rallyists. Jovy Jaravelo, a rallyist, picked up one of the canisters and threw it back where it came from. Hell
broke loose. CHDF Alfredo Quinatagcan (a.k.a. Pidong Bagis) shot Jaravelo. Successive gunfire followed. Several
witnesses saw the CHDF personnel and the PC men on board the Cadiz City firetruck and the "weapons carrier" fire
their guns. Some fired into the air while the others directed their gun shots at the rallyists. When the dust settled
down, twenty (20) of the demonstrators were dead, twenty-four (24) others were wounded and seventy-nine (79)
empty shells were recovered from the scene of the crime. They were later traced to four firearms belonging to CHDF
Caete, CHDF Parcon, C2C Lerado and C1C Ibaez. 10

The following were identified by witnesses to have fired their guns: CHDF Alfredo M. Quinatagcan alias Pidong
Bagis, CHDF Elias Torias, CHDF Jimmy Mayordomo, CHDF Teddy Magtubo, CHDF Jeremias Villanueva, CHDF
Jose "Boy" Parcon, Roming Javier, C1C Eleuterio O. Ibaez, T/Sgt. Generoso W. Subayco, C1C Alfredo Alcalde. 11
On the basis of the evidence adduced and following its theory of implied conspiracy, the respondent Court held
petitioners liable for the deaths and injuries of all the victims. 12 It is this finding of implied conspiracy that petitioners
assail in the petition at bar.
Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it. It may be deduced from the mode and manner in which the offense was committed. The
concerted acts of the petitioners to achieve the same objective signify conspiracy. 13 In the case of People
vs.Guevarra, 14 we enunciated the doctrine of implied conspiracy as follows:
xxx xxx xxx
Although there is no well-founded evidence that the appellant and Romero had conferred and
agreed to kill Joselito, their complicity can be justified by circumstantial evidence, that is, their
community of purpose and their unity of design in the contemporaneous or simultaneous
performance of the act of assaulting the deceased.
xxx xxx xxx
There can be no question that the appellant's act in holding the victim from behind immediately
before the latter was stabbed by Eduardo constitutes a positive and overt act towards the realization
of a common criminal intent, although the intent may be classified as instantaneous. The act was
impulsively done on the spur of the moment. It sprang from the turn of events, thereby uniting the
criminal design of the slayer immediately before the commission of the offense. That is termed
asimplied conspiracy. The appellant's voluntary and indispensable cooperation was a concurrence of
the criminal act to be executed. Consequently, he is a co-conspirator by indispensable cooperation,
although the common desire or purpose was never bottled up by previous undertaking. (emphasis
supplied)
We therefore uphold the respondent court in ruling that the following circumstances proved the existence of
animplied conspiracy among the petitioners in the cases at bar:
1. After the Escalante firetruck exhausted its supply of water, it withdrew from the
scene.
2. The Cadiz City firetruck took over hosing the crowd. It also ran out of water, tried
to back out but was prevented by the logs and rocks strewn behind it.
3. The "weapons carrier" then moved behind the Cadiz City firetruck.
4. Teargas canisters were thrown into the crowd. Jovy Jaravelo, a rallyist, picked up
one of the canisters and threw it back to where it came from. At this juncture, CHDF
Alfredo Quinatagcan a.k.a. Pidong Bagis shot Jaravelo. Successive gunfire followed.
5. The seventy-nine (79) empty shells recovered from the scene of the crime were
traced to four M-16 rifles issued to CHDF Caete, CHDF Parcon, C2C Lerado and
C1C Ibaez. Caete and Parcon were on board the "weapons carrier" while Lerado
and Ibaez were on board the Cadiz City firetruck.
6. The other personnel who were also on these two vehicles were also seen to have
fired at the crowd.
All these circumstances intersect to show a community of purpose among the petitioners and their companions, that
is, to fire at the demonstrators. This common purpose was pursued by the petitioners and their companions who
used firepower against the rallyists. As proved, the plan to disperse the demonstrators did not include the use of
guns, yet, petitioners and their cohorts did. At the first crack of gunfire coming from CHDF Alfredo Quinatagcan
(a.k.a. Pidong Bagis), petitioners and their companions commenced firing at the demonstrators, as if on signal. They
fired indiscriminately toward the demonstrators who were then already lying prone on the ground. There was no
imminent danger to their safety. Not just one or a few shots were fired but several. The firing lasted a few minutes
and cost the lives and limbs of the demonstrators. We agree with the respondent court that the collective acts of the
petitioners and their companions clearly show the existence of a common design toward the accomplishment of a
united purpose. 15 They were therefore properly convicted for all the crimes they were charged with.

The use of bullets to break up an assembly of people petitioning for redress of grievance cannot but be bewailed. It
is bound to happen again for as long as abuses in government abound. Precisely to help put a brake on official
abuses, people empowerment was codified in various provisions of the 1987 Constitution. It is high time to remind
our officials that under our Constitution power does not come from the barrel of a gun but from the ballots of the
people. It thus important to know the unexpurgated will of the people for in a republican government, it is the people
who should truly rule. Consequently, the right of the people to assemble peacefully and to petition for redress of
grievance should not be abridged by officials momentarily holding the powers of government. So we expressly held
in the early case of US v. Apurado. 16
It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
brought to a high pitch of excitement, and the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to assemble and to petition
for redress of grievances would become a delusion and a snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes which they sought to attain
did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur
on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising.
The Constitution did not engage in mystical teaching when it proclaimed in solemn tone that "sovereignty
resides in the people and all government authority emanates from them." 17 It should be clear even to those
with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should
listen, especially the government. For in a democracy, it is the people who count; those who are deaf to their
grievances are ciphers.
Our affirmance of the conviction of the petitioners does not give complete justice to the victims of the Escalante
massacre, subject of the cases at bar. Until today, sixteen (16) of the other accused have successfully eluded arrest
by the authorities. Not until they have been arrested and tried will justice emerge triumphant for justice cannot come
in fraction.
IN VIEW WHEREOF, the Decision of the Sandiganbayan promulgated October 3, 1994 is affirmed. Let copies of this
Decision be furnished the Secretary of Justice and the Secretary of Interior and Local Government that they may
undertake the necessary efforts to effectuate the early arrest of the other accused in the cases at bar. Costs against
petitioners.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-65017 November 13, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
STALIN GUEVARRA y PAPASIN accused-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Pedro A. Venida for accused-appellant.
SARMIENTO, J.:
Stalin Guevarra was convicted of murder by the Court of First Instance (now Regional Trial Court) of Oriental
Mindoro. 1 On appeal, the then Intermediate Appellate Court (now Court of Appeals) rendered judgment on August 17,
1983, increasing the indeterminate penalty from "TEN (10) YEARS and ONE (1) DAY, of prision mayor, as minimum, to
SEVENTEEN (17) YEARS and FOUR (4) MONTHS, of reclusion temporal, as maximum, to indemnify the heirs of the
deceased in the amount of P12,000.00, without subsidiary imprisonment in case of insolvency and to pay the costs,"
imposed by the trial court, to reclusion perpetua, and affirmed in all other respects the appealed decision. 2 However,
considering that this case involves a capital offense, the appellate court could not enter judgment. Conformably, therefore,
to Daniel, 3 Ramos, 4 Galang, 5 and similar cases the entire records were certified and elevated to us for review.
The facts are as follows:
On November 29, 1980, Joselito de los Reyes, twenty-three years of age, assistant chief security guard at "Baklad"
Naujan Oriental Mindoro, together with Teofilo Martinez, a thirty-two year-old fisherman of Bancurro Naujan
attended a dance sponsored by the San Agustin Barangay High School. Teofilo saw Eduardo Romero (still at large)
and Stalin Guevarra together at the dance hall. The affair was interrupted abruptly when someone stoned the
school. At about midnight, Joselito and Teofilo went home to Bancurro. Together with them were Rosabel , Magno
and Babylyn Martinez, both students, seventeen and seventeen and eighteen years of age, respectively. Along the
way, Teofilo held a flashlight to illuminate the rocky path whereon Joselito, Rosabel, and Babylyn walked. Suddenly,
they were waylaid by Stalin and Eduardo. Stalin, 27 years old, went immediately behind Joselito, and embraced him
with both hands. 6 Joselito struggled from the clutches of Stalin but in vain; the firm embrace locked the whole body and
both arms of Joselito. Facing the hapless Joselito, Eduardo got his knife from his pocket, opened it, 7 and thrust the shiny
and pointed end of the weapon at the right side of Joselito's body just below his navel. 8 "May tama ako," were the words
uttered by Joselito just before he fell to the ground. 9 Teofilo, Babylyn, and Rosabel froze where they stood. The
abruptness of the incident petrified them. But after the stabbing the assailants fled in the direction of San Agustin and
disappeared in the dark. The beam of light from the flashlight Teofilo carried, however, was sufficient to enable him and his
two female companions to witness clearly the stabbing of Joselito and to recognize the appellant and Eduardo Romero,
both known to them (Teofilo, Babylyn, and Rosabel), as the perpetrators of the crime.
Bathed in blood, the victim was pedalled in a tricycle to the Naujan Police Station. Unfortunately, Private First Class
(Pfc) Henry Aceremo, the officer-in-charge, was not able to get an ante mortem statement because the victim could
hardly talk. 10 He was hovering between life and death when he was rushed to the clinic of Dr. Nicolas B. Balbin.

As a result of the mortal wound inflicted by Eduardo Romero, Joselito died.

Dr. Nicolas B. Balbin who conducted a post mortem examination, certified that the cause of death was hemorrhage
within the adbominal cavity, and that the wound might have been caused by a sharp-bladed instrument, probably a
"balisong." 11
As a consequence, Pfcs Bautista and Aceremo accompanied by Rosabel and Babylyn, went to the house of the
appellant where he was found drunk. As to Eduardo, he vanished from the barrio without a trace.
Subsequently, an information was filed stating:
That on or about the 29th day of November, 1980 at around 12:00 o'clock in the evening, in
Barangay San Agustin II, Municipality of
Naujan, Province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court,
the above named accused, with deliberate intent to kill, by means of treachery and evident
premeditation, conspiring and confabulating with Eduardo Romero, who is still at large and therefore
no preliminary investigation has yet been conducted against him, did then and there wilfully,
unlawfully and feloniously attack, assault and stab with a sharp- pointed instrument one Joselito
delos Reyes, who was then unaware and helpless, inflicting upon the latter a fatal stab wound, as a
result of which caused his udden and unexpected death.
That in the commission of the offense, the qualifying circumstances of treachery and evident
premeditation, in addition to the aggravating circumstances of superior strength and nocturnity, were
present.
Contrary to Article 248 of the Revised Penal Code. 12
After trial, the trial court found Stalin Guevarra guilty and imposed the penalty adverted to at the outset.
The appellant vehemently denies killing Joselito de los Reyes. He argues that if indeed he had embraced the victim
from behind to facilitate the commission of the crime without posing any danger to his supposed co-conspirator or
,without fear of reprisal from the victim, then he could have fled the scene out of a sense of guilt, out of fear, or to
avoid arrest and ultimate imprisonment. He did not leave his barrio, however, instead, a few hours after the alleged
commission of the crime, he was found by the policemen boiling and eating bananas with the Hernandez girls. He
quotes: "It has been truly said, since long ago that the wicked teeth, even when no man pursueth whereas the
righteous are brave as the lion." 13
We can not accept the appellant's submission. As a review of the records shows, after the stabbing incident, both
the appellant and Eduardo Romero hastily fled into the night. This flight from the stabbing scene is a strong
indication of a guilty mind. 14 In small localities where people generally know one another and are inclined, nay, expected,
to show great concern for neighbors and even nodding acquaintances who fall victim to cruel and inhuman acts, it would
have been natural for the appellant, if indeed he was innocent of the crime charged, to have gone to the succor of the
fallen Joselito; he would have taken him to the nearest hospital. Or, at the very least, he could have reported the incident
to the local police authorities. But he did neither of these Good Samaritan acts. By his account, he went home, obviously
confident that he was not Identified as it was nighttime. While it may be true that Romero escaped and remains at large,
the appellant, appearing like a brave lion, stayed home, Yet it now appears that he did so not because he was innocent
but because he believed he could not be Identified. But he was wrong. He was clearly and positively Identified by the
prosecution eyewitnesses. Teofilo Martinez recognized Stalin as the person who embraced the victim to ensure the
killing15 of Joselito. Rosabel Magno, one of the student companions of Joselito, pointed an accusing finger at Stalin as one
of the culprits. 16 Babylyn Martinez, likewise, Identified the appellant as the one who immobilized the hands of the victim to
render him vulnerable to the assault of Eduardo. 17
In his attempt to absolve himself of guilt, the appellant contends that there is an absolute variance between the
allegations in the information and the proofs presented by the prosecution witnesses. But Rosabel Magno's
testimony on cross-examination showed her unwavering Identification of Stalin Guevarra as a co-perpetrator of the
killing of Joselito.
xxx xxx xxx
Q. Now, you stated that a stabbing incident transpired while you and your
companions were walking towards the direction of your respective houses. Please
tell the Court what happened?

A. We were walking side by side, sir. While we were walking side by side on our way
there was a sudden appearance of two persons one of whom was Stalin Guevarra,
one of those persons who appeared went immediately behind Joselito de los Reyes
and embraced the latter and immediately thereafter Eduardo Romero stabbed Jose
de los Reyes. 18
Q. Please tell the court?
A. I told the police investigators that Eduardo Romero stabbed Joselito while Stalin
Guevarra embraced Joselito. 19
xxx xxx xxx

The defense deposits that the prosecution witnesses uttered contradictory statements, in effect trying to raise
doubts as to their veracity.
First, the appellant points out that Teofilo Martinez contradicted his own testimony:
xxx xxx xxx
Q. When you arrived there at the dance at ten o'clock of November 29, 1980, in the
evening, did you see Eduardo Romero and Stalin Guevarra at the dance.
A. Yes, sir.
Yet, 12 pages later, he did not see them:
Q. Let us go now to the incident in the dance floor. You stated that you did not see
the accused Stalin Guevarra and Romero dancing. In what part of the dance floor or
in the dance hall were they before the incident in question?
A. It was already on our way home when we saw them.
Q. So, while you were witnessing the dance you did not see them in the dance hall
that evening?
A. That is right, sir. 20
xxx xxx xxx
The alleged contradictions are minor inconsistencies. Whether or not Teofilo saw Stalin at the dance is immaterial.
That has nothing to do with the stabbing of the victim. At any rate, Teofilo's narration of the incident was replete with
details, clear and straight-forward, which is a convincing indication that he had actually witnessed the killing of
Joselito. Hence, the trivial and unimportant details that the appellant emphasizes do not detract from the veracity of
the testimony of the prosecution witnesses.
Secondly, Stalin contends that he could not have embraced Joselito to give Eduardo Romero the chance to stab the
former as he was not at the scene of the crime in the evening of November 29, 1980 at about 12:00 o'clock
midnight.
This defense of alibi was not established at all.
Alibi is one of the weakest of all defenses. lt can be easily concocted. To sustain the defense of alibi, the accused
must not only prove satisfactorily that he was at some other place at the time the crime happened, but more so, that
it was physically impossible for him to have been at the place where the crime was committed. 21
The very evidence for the defense convinces us that it was physically possible for the appellant to be where the
prosecution witnesses testified he was, at the scene of the crime, and then rush away to his house after the fatal
incident. The place where the stabbing took place is only about seventy meters from the appellant's house.
xxx xxx xxx
He Stalin Guevarra) however, admitted that he and his companions were walking towards the
direction of his house on the same evening of November 29, 1980, where they were about seventy

(70) meters away from the place of the incident. The testimony of the accused was corroborated by
defense witnesses Myra Hernandez and Julio Guevarra when they took the witness stand. 22
xxx xxx xxx

We have stated, time and again, the almost inflexible rule that alibi cannot prevail over the positive testimony of
prosecution witnesses and their clear Identification of the accused as the perpetrator of the crime. 23 In the instant
case, prosecution witness Teofilo Martinez, who carried a flashlight, positively and clearly pinpointed the appellant as one
of the assailants. Likewise, Babylyn Martinez and Rosabel Magno, the female companions of the deceased, sufficiently
corroborated Teofilo Martinez's Identification of Stalin.
Thirdly, the appellant disputes the finding that he had conspired and confabulated with Eduardo to attack, assault,
and stab Joselito. Thus, he denies conspiracy. We do not agree.
Conspiracy, it is true, is "always predominantly 'mental in composition' because it consists primarily of a meeting of
minds and an intent." 24 Hence, direct proof is not essential to establish it. By its nature, conspiracy is planned in utmost
secrecy, it can rarely be proved by direct evidence. 25
Although here there is no well founded evidence that the appellant and Romero had conferred and agreed to kill
Joselito, their complicity can be justified by circumstantial evidence, that is, their community of purpose and their
unity of design in the contemporaneous or simultaneous performance of the act of assaulting the deceased. 26
The appellant cooperated with Romero in the commission of the offense by another act without which it would not
have been accomplished. Therefore, the appellant is guilty as a principal by indispensable cooperation under Article
17, paragraph 3 of the Revised Penal Code. The requisites for criminal liability under this provision are: 1)
participation in the criminal resolution, i.e., there is either anterior conspiracy or unity of criminal purpose and
intention immediately before or simultaneously with the commission of the crime charged; and 2) cooperation in the
commission of the offense by performing another act without which it would not have been accomplished. 27
At the locus criminis was the appellant. His presence did not merely give aid or support, but emboldened the
attacker as the victim was immobilized by the appellant.
There can be no question that the appellant's act in holding the victim from behind immediately before the latter was
stabbed by Eduardo constitutes a positive and an overt act towards the realization of a common criminal intent,
although the intent may be classified as instantaneous. 28 The act was impulsively done on the spur of the moment. It
sprang from the turn of events, thereby uniting with the criminal design of the slayer immediately before the commission of
the offense. That is termed as implied conspiracy. 29 The appellant's voluntary and indispensable cooperation was a
concurrence of the criminal act to be executed. Consequently, he is a co-conspirator by indispensable cooperation,
although the common desire or purpose was never bottled up by a previous undertaking.
It can be safely inferred that the appellant was animated to cooperate in the taking of the 'life of the deceased. Had it
not been of the appellant's embrace of the victim from behind, the latter could have fought back, parried the thrust,
or could have even run away.
If, indeed, the appellant intended to save the deceased from the attack, he could have wrestled for the "balisong"
from Eduardo's hands and prevented the assault. Or, he could have placed himself between the assailant and the
victim, instead of grabbing him from behind and holding both his arms. The appellant's actuations thus belie his
claimed innocence.
True, the appellant did not inflict any wound or injury materially contributing to the death of the victim. But, as
already stated, his act of immobilizing Joselito's arms establishes the indispensable cooperation required by law to
make him equally guilty with Romero who alone stabbed and wounded the former.
Curiously, appellant Stalin Guevarra filed in the Court a motion to withdraw his appeal, dated July 22, 1985. He
expressed that he was no longer interested in his appeal and manifested his willingness to serve his sentence and
subsequently apply for executive clemency or parole. Considering that the appellant in his motion was un-assisted
by counsel, the Court denied the motion.
The Court of Appeals ruled that the crime committed by the appellant is "murder as the killing is qualified by evident
premeditation." We do no agree. Not one of the three basic elements of evident premeditation was proven, to wit:
First, the time when the offender determined to commit the crime itself, second, an act manifestly indicating that the
culprit had tenaciously clung to his obsession to commit the crime; and third, a sufficient lapse of time between the
determination and the execution to allow him to reflect upon the consequence of his act. On the other hand, what
the evidence on record shows is that both the appellant and Romero, assaulted the victim spontaneously and
cooperated fully. This circumstance, we rule, precludes evident premidatation.

Be that as it may, the crime committed is still murder, the killing being qualified by treachery. The evidence shows
beyond reasonable doubt that the attack by Romero, with the indispensable cooperation of the appellant, was so
sudden and unexpected as to deprive the victim of any opportunity to defend himself or to inflict retaliation.
WHEREFORE, the appealed judgment is AFFIRMED WITH MODIFICATION as to the civil indemnity which is
hereby increased to P30,000.00.
Costs against the appelant.
SO ORDERED

EN BANC
[G.R. No. 117472. February 7, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY y PILO,

accused-appellant.
RESOLUTION
PER CURIAM:
On June 25, 1996, we rendered our decision in the instant case affirming the conviction of the
accused-appellant for the crime of raping his ten-year old daughter. The crime having been
committed sometime in April, 1994, during which time Republic Act (R.A.) No. 7659, commonly
known as the Death Penalty Law, was already in effect, accused-appellant was inevitably meted
out the supreme penalty of death.
On July 9, 1996, the accused-appellant timely filed a Motion for Reconsideration which
focused on the sinister motive of the victim's grandmother that precipitated the filing of the
alleged false accusation of rape against the accused. We find no substantial arguments on the
said motion that can disturb our verdict.
On August 6, 1996, accused-appellant discharged the defense counsel, Atty. Julian R. Vitug,
and retained the services of the Anti-Death Penalty Task Force of the Free Legal Assistance Group
of the Philippines (FLAG).
On August 23, 1996, we received the Supplemental Motion for Reconsideration prepared by
the FLAG on behalf of accused-appellant. The motion raises the following grounds for the
reversal of the death sentence:
"[1] Accused-appellant should not have been prosecuted since the pardon by the
offended party and her mother before the filing of the complaint acted as a bar to his
criminal prosecution.
[2]
The lack of a definite allegation of the date of the commission of the offense in the
Complaint and throughout trial prevented the accused-appellant from preparing an
adequate defense.
[3]

The guilt of the accused was not proved beyond a reasonable doubt.

[4]
The Honorable Court erred in finding that the accused-appellant was the father or
stepfather of the complainant and in affirming the sentence of death against him on this
basis.
[5]
The trial court denied the accused-appellant of due process and manifested bias in
the conduct of the trial.
[6]
The accused-appellant was denied his constitutional right to effective assistance of
counsel and to due process, due to the incompetence of counsel.
[7]

R.A. [No.] 7659, reimposing the death penalty is unconstitutional per se:
a.
For crimes where no death results from the offense, the death penalty is
a severe and excessive penalty in violation of Article III, Sec. 19 ( I ) of the 1987
Constitution.
b.
The death penalty is cruel and unusual punishment in violation of Article
III, Sec. 11 of the 1987 Constitution."

In sum, the Supplemental Motion for Reconsideration raises three (3) main issues: (1) mixed
factual and legal matters relating to the trial proceedings and findings; (2) alleged incompetence
of accused-appellant's former counsel; and (3) purely legal question of the constitutionality of
R.A. No. 7659.
I.
It is a rudimentary principle of law that matters neither alleged in the pleadings nor raised
during the proceedings below cannot be ventilated for the first time on appeal before the
Supreme Court. Moreover, as we have stated in our Resolution in Manila Bay Club Corporation v.
Court of Appeals:[1]
"If well-recognized jurisprudence precludes raising an issue only for the first time on
appeal proper, with more reason should such issue be disallowed or disregarded when
initially raised only in a motion for reconsideration of the decision of the appellate court."
It is to be remembered that during the proceedings of the rape case against the accusedappellant before the sala of then presiding Judge xxx, the defense attempted to prove that:
a)
the rape case was motivated by greed, hence, a mere concoction of the alleged
victim's maternal grandmother;
b)

the accused is not the real father of the complainant;

c)
the size of the penis of the accused cannot have possibly penetrated the alleged
victim's private part; and
d)

the accused was in xxx during the time of the alleged rape.

In his Brief before us when the rape case was elevated for automatic review, the accusedappellant reiterated as grounds for exculpation:
a)
the ill-motive of the victim's maternal grandmother in prompting her grandchild to
file the rape case;
b)
the defense of denial relative to the size of his penis which could not have caused
the healed hymenal lacerations of the victim; and
c)

the defense of alibi.

Thus, a second hard look at the issues raised by the new counsel of the accused-appellant
reveals that in their messianic appeal for a reversal of our judgment of conviction, we are asked
to consider for the first time, by way of a Supplemental Motion for Reconsideration, the following
matters:
a)
the affidavit of desistance written by the victim which acted as a bar to the criminal
prosecution for rape against the accused-appellant;
b)
the vagueness attributed to the date of the commission of the offense in the
Complaint which deprived the accused-appellant from adequately defending himself;
c)
the failure of this Court to clearly establish the qualifying circumstance that placed
the accused-appellant within the coverage of the Death Penalty Law;
d)
the denial of due process and the manifest bias exhibited by the trial court during
the trial of the rape case.

Apparently, after a careful scrutiny of the foregoing points for reconsideration, the only
legitimate issue that We can tackle relates to the Affidavit of Desistance which touches on the
lack of jurisdiction of the trial court to have proceeded with the prosecution of the accusedappellant considering that the issue of jurisdiction over the subject matter may be raised at any
time, even during appeal.[2]
It must be stressed that during the trial proceedings of the rape case against the accusedappellant, it appeared that despite the admission made by the victim herself in open court that
she had signed an Affidavit of Desistance, she, nevertheless, "strongly pointed out that she is not
withdrawing the charge against the accused because the latter might do the same sexual
assaults to other women."[3] Thus, this is one occasion where an affidavit of desistance must be
regarded with disfavor inasmuch as the victim, in her tender age, manifested in court that she
was pursuing the rape charges against the accused-appellant.
We have explained in the case of People v. Gerry Ballabare,[4] that:
"As pointed out in People v. Lim (24 190 SCRA 706 [1990], which is also cited by the
accused-appellant, an affidavit of desistance is merely an additional ground to buttress
the accused's defenses, not the sole consideration that can result in acquittal. There
must be other circumstances which, when coupled with the retraction or desistance,
create doubts as to the truth of the testimony given by the witnesses at the trial and
accepted by the judge."[5]
In the case at bar, all that the accused-appellant offered as defenses mainly consisted of
denial and alibi which cannot outweigh the positive identification and convincing testimonies
given by the prosecution. Hence, the affidavit of desistance, which the victim herself intended to
disregard as earlier discussed, must have no bearing on the criminal prosecution against the
accused-appellant, particularly on the trial court's jurisdiction over the case.
II
The settled rule is that the client is bound by the negligence or mistakes of his counsel. [6] One
of the recognized exceptions to this rule is gross incompetency in a way that the defendant is
highly prejudiced and prevented, in effect, from having his day in court to defend himself.[7]
In the instant case, we believe that the former counsel of the accused-appellant to whom the
FLAG lawyers now impute incompetency had amply exercised the required ordinary diligence or
that reasonable decree of care and skill expected of him relative to his client's defense. As the
rape case was being tried on the merits, Atty. Vitug, from the time he was assigned to handle the
case, dutifully attended the hearings thereof. Moreover, he had seasonably submitted the
Accused-Appellant's Brief and the Motion for Reconsideration of our June 25, 1996 Decision with
extensive discussion in support of his line of defense. There is no indication of gross
incompetency that could have resulted from a failure to present any argument or any witness to
defend his client. Neither has he acted haphazardly in the preparation of his case against the
prosecution evidence. The main reason for his failure to exculpate his client, the accusedappellant, is the overwhelming evidence of the prosecution. The alleged errors committed by
the previous counsel as enumerated by the new counsel could not have overturned the judgment
of conviction against the accused-appellant.
III
Although its origins seem lost in obscurity, the imposition of death as punishment for
violation of law or custom, religious or secular, is an ancient practice. We do know that our
forefathers killed to avenge themselves and their kin and that initially, the criminal law was used
to compensate for a wrong done to a private party or his family, not to punish in the name of the
state.
The dawning of civilization brought with it both the increasing sensitization throughout the
later generations against past barbarity and the institutionalization of state power under the rule
of law. Today every man or woman is both an individual person with inherent human rights
recognized and protected by the state and a citizen with the duty to serve the common weal and
defend and preserve society.
One of the indispensable powers of the state is the power to secure society against
threatened and actual evil. Pursuant to this, the legislative arm of government enacts criminal
laws that define and punish illegal acts that may be committed by its own subjects, the executive
agencies enforce these laws, and the judiciary tries and sentences the criminals in accordance
with these laws.
Although penologists, throughout history, have not stopped debating on the causes of
criminal behavior and the purposes of criminal punishment, our criminal laws have been
perceived as relatively stable and functional since the enforcement of the Revised Penal Code on

January 1, 1932, this notwithstanding occasional opposition to the death penalty provisions
therein. The Revised Penal Code, as it was originally promulgated, provided for the death
penalty in specified crimes under specific circumstances. As early as 1886, though, capital
punishment had entered our legal system through the old Penal Code, which was a modified
version of the Spanish Penal Code of 1870.
The opposition to the death penalty uniformly took the form of a constitutional question of
whether or not the death penalty is a cruel, unjust, excessive or unusual punishment in violation
of the constitutional proscription against cruel and unusual punishments. We unchangingly
answered this question in the negative in the cases of Harden v. Director of Prison, [8] People v.
Limaco,[9] People v. Camano,[10] People v. Puda[11] and People v. Marcos,[12] In Harden, we ruled:
"The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136 U.S.,
436, the United States Supreme Court said that 'punishments are cruel when they involve torture
or a lingering death, but the punishment of death is not cruel, within the meaning of that word as
used in the constitution. It implies there something inhuman and barbarous, something more
than the mere extinguishment of life.'"[13]
Consequently, we have time and again emphasized that our courts are not the fora for a
protracted debate on the morality or propriety of the death sentence where the law itself
provides therefor in specific and well-defined criminal acts. Thus we had ruled in the 1951 case
of Limacothat:
"x x x 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,"[14]
and this we have reiterated in the 1995 case of People v. Veneracion.[15]
Under the Revised Penal Code, death is the penalty for the crimes of treason, correspondence
with the enemy during times of war, qualified piracy, parricide, murder, infanticide, kidnapping,
rape with homicide or with the use of deadly weapon or by two or more persons resulting in
insanity, robbery with homicide, and arson resulting in death. The list of capital offenses
lengthened as the legislature responded to the emergencies of the times. In 1941,
Commonwealth Act (C.A.) No. 616 added espionage to the list. In the 1950s, at the height of the
Huk rebellion, the government enacted Republic Act (R.A.) No. 1700, otherwise known as the
Anti-Subversion Law, which carried the death penalty for leaders of the rebellion. From 1971 to
1972, more capital offenses were created by more laws, among them, the Anti-Hijacking Law, the
Dangerous Drugs Act, and the Anti-Carnapping Law. During martial law, Presidential Decree (P.D.)
No. 1866 was enacted penalizing with death, among others, crimes involving homicide
committed with an unlicensed firearm.
In the aftermath of the 1986 revolution that dismantled the Marcos regime and led to the
nullification of the 1973 Constitution, a Constitutional Commission was convened following
appointments thereto by Corazon Aquino who was catapulted to power by the people.
Tasked with formulating a charter that echoes the new found freedom of a rejuvenated people,
the Constitutional Commissioners grouped themselves into working committees among which is
the Bill of Rights Committee with Jose B. Laurel, Jr. As Chairman and Father Joaquin G. Bernas,
S.J., as Vice-Chairman.
On July 17, 1986, Father Bernas presented the committee draft of the proposed bill of rights to
the rest of the commission. What is now Article III, Section 19 (1) of the 1987 Constitution was
first denominated as Section 22 and was originally worded as follows:
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment, or the death
penalty inflicted. Death penalty already imposed shall be commuted to reclusion perpetua."
Father Bernas explained that the foregoing provision was the result of a consensus among the
members of the Bill of Rights Committee that the death penalty should be abolished. Having
agreed to abolish the death penalty, they proceeded to deliberate on how the abolition was to be
done -- whether the abolition should be done by the Constitution or by the legislature -- and the
majority voted for a constitutional abolition of the death penalty. Father Bernas explained:
"x x x [T]here was a division in the Committee not on whether the death penalty should
be abolished or not, but rather on whether the abolition should be done by the
Constitution -- in which case it cannot be restored by the legislature -- or left to the
legislature. The majority voted for the constitutional abolition of the death penalty. And
the reason is that capital punishment is inhuman for the convict and his family who are

traumatized by the waiting, even if it is never carried out. There is no evidence that the
death penalty deterred deadly criminals, hence, life should not be destroyed just in the
hope that other lives might be saved. Assuming mastery over the life of another man is
just too presumptuous for any man. The fact that the death penalty as an institution has
been there from time immemorial should not deter us from reviewing it. Human life is
more valuable than an institution intended precisely to serve human life. So, basically,
this is the summary of the reasons which were presented in support of the constitutional
abolition of the death penalty".[16]
The original wording of Article III, Section 19 (1), however, did not survive the debate that it
instigated. Commissioner Napoleon G. Rama first pointed out that "never in our history has
there been a higher incidence of crime" and that "criminality was at its zenith during the last
decade".[17] Ultimately, the dissent defined itself to an unwillingness to absolutely excise the
death penalty from our legal system and leave society helpless in the face of a future upsurge of
crimes or other similar emergencies. As Commissioner Rustico F. de los Reyes, Jr. suggested,
"although we abolish the death penalty in the Constitution, we should afford some amount of
flexibility to future legislation,"[18] and his concern was amplified by the interpellatory remarks of
Commissioner Lugum L. Commissioner and now Associate Justice Florenz Regalado,
Commissioner Crispino M. de Castro, Commissioner Ambrosio B. Padilla, Commissioner Christian
Monsod,
Commissioner
Francisco
A.
Rodrigo,
and
Commissioner
Ricardo
Romulo. Commissioner Padilla put it succinctly in the following exchange with Commissioner
Teodoro C. Bacani:
"BISHOP BACANI. x x x At present, they explicitly make it clear that the church has never
condemned the right of the state to inflict capital punishment.
MR. PADILLA. x x x So it is granted that the state is not deprived of the right even from a
moral standpoint of imposing or prescribing capital punishment.
BISHOP BACANI. Yes. What I am saying is that from the Catholic point of view, that right
of the state is not forbidden.
MR. PADILLA. In fact x x x we have to accept that the state has the delegated authority
from the Creator to impose the death penalty under certain circumstances.
BISHOP BACANI. The state has the delegation from God for it to do what is needed for the
sake of the common good, but the issue at stake is whether or not under the present
circumstances that will be for the common good.
MR. PADILLA. But the delegated power of the state cannot be denied.
BISHOP BACANI. Yes, the state can be delegated by God at a particular stage in history,
but it is not clear whether or not that delegation is forever under all circumstances
MR. PADILLA. So this matter should be left to the legislature to determine, under certain
specified conditions or circumstances, whether the retention of the death penalty or its
abolition would be for the common good. I do not believe this Commission can a priori,
and as was remarked within a few days or even a month, determine a positive provision
in the Constitution that would prohibit even the legislature to prescribe the death penalty
for the most heinous crimes, the most grievous offenses attended by many qualifying and
aggravating circumstances."[19]
What followed, thus, were proposed amendments to the beleaguered provision. The move to
add the phrase, "unless for compelling reasons involving heinous crimes, the national assembly
provides for the death penalty," came from Commissioners Monsod, Jose E. Suarez and de los
Reyes. Commissioner Rodrigo, however, expressed reservations even as regards the proposed
amendment. He said:
"x x x [T]he issue here is whether or not we should provide this matter in the Constitution
or leave it to the discretion of our legislature. Arguments pro and con have been given x
x x. But my stand is, we should leave this to the discretion of the legislature.
The proposed amendment is halfhearted. It is awkward because we will, in effect, repeal
by our Constitution a piece of legislation and after repealing this piece of legislation, tell
the legislature that we have repealed the law and that the legislature can go ahead and
enact it again. I think this is not worthy of a constitutional body like ours. If we will leave
the matter of the death penalty to the legislature, let us leave it completely to the
discretion of the legislature, but let us not have this half-baked provision. We have many
provisions in the Revised Penal Code imposing the death penalty. We will now revoke or
repeal these pieces of legislation by means of the Constitution, but at the same time say
that it is up to the legislature to impose this again.

x x x The temper and condition of the times change x x x and so we, I think we should
leave this matter to the legislature to enact statutes depending on the changing needs of
the times. Let us entrust this completely to the legislature composed of representatives
elected by the people.
I do not say that we are not competent. But we have to admit the fact that we are not
elected by the people and if we are going to entrust this to the legislature, let us not be
half-baked nor half-hearted about it. Let us entrust it to the legislature 100 percent." [20]
Nonetheless, the proposed amendment was approved with twenty-three (23) commissioners
voting in favor of the amendment and twelve (12) voting against it, followed by more revisions,
hence the present wording of Article III, Section 19 (1) of the 1987 Constitution in the following
tenor:
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment
inflicted. Neither shall death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides for it. Any death penalty
already imposed shall be reduced to reclusion perpetua."
The implications of the foregoing provision on the effectivity of the death penalty provisions
in the Revised Penal Code and certain special criminal laws and the state of the scale of penalties
thereunder, were tremendous.
The immediate problem pertained to the applicable penalty for what used to be capital
crimes. In People v. Gavarra,[21] we stated that "in view of the abolition of the death penalty
under Section 19, Article III of the 1987 Constitution, the penalty that may be imposed for
murder isreclusion temporal in its maximum period to reclusion perpetua"[22] thereby eliminating
death as the original maximum period. The constitutional abolition of the death penalty, it
seemed, limited the penalty for murder to only the remaining periods, to wit, the minimum and
the medium, which we then, in People v. Masangkay,[23] People v. Atencio[24] and People v.
Intino[25] divided into three new periods, to wit, the lower half of reclusion temporal maximum as
the minimum; the upper half of reclusion temporal maximum as the medium; and reclusion
perpetua as the maximum, in keeping with the three-grade scheme under the Revised Penal
Code. In People v. Munoz,[26] however, we reconsidered these aforecited cases and after
extended discussion, we concluded that the doctrine announced therein did not reflect the
intention of the framers. The crux of the issue was whether or not Article III, Section 19 (1)
absolutely abolished the death penalty, for if it did, then, the aforementioned new three-grade
penalty should replace the old one where the death penalty constituted the maximum
period. But if no total abolition can be read from said constitutional provision and the death
penalty is only suspended, it cannot as yet be negated by the institution of a new three-grade
penalty premised on the total inexistence of the death penalty in our statute books. We thus
ruled in Munoz:
"The advocates of the Masangkay ruling argue that the Constitution abolished the death
penalty and thereby limited the penalty for murder to the remaining periods, to wit, the
minimum and the medium. These should now be divided into three new periods in
keeping with the three-grade scheme intended by the legislature. Those who disagree
feel that Article III, Section 19 (1) merely prohibits the imposition of the death penalty and
has not, by reducing it toreclusion perpetua, also correspondingly reduced the remaining
penalties. These should be maintained intact.
A reading of Section 19 (1) of Article III will readily show that there is really nothing
therein which expressly declares the abolition of the death penalty. The provision merely
says that the death penalty shall not be imposed unless for compelling reasons involving
heinous crimes the Congress hereafter provides for it and, if already imposed, shall be
reduced to reclusion perpetua. The language, while rather awkward, is still plain
enough".[27]
Nothing is more defining of the true content of Article III, Section 19 (1) of the 1987
Constitution than the form in which the legislature took the initiative in re-imposing the death
penalty.
The Senate never doubted its power as vested in it by the constitution, to enact legislation
re-imposing the death penalty for compelling reasons involving heinous crimes. Pursuant to this
constitutional mandate, the Senate proceeded to a two-step process consisting of: first, the
decision, as a matter of policy, to re-impose the death penalty or not; and second, the vote to
pass on the third reading the bill re-imposing the death penalty for compelling reasons involving
heinous crimes.

On February 15, 1993, after a fierce and fiery exchange of arguments for and against capital
punishment, the Members of the Senate voted on the policy issue of death penalty. The vote
was explained, thus:
"SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there being no objection, the Body suspended the Rules
of the Senate.
Thereafter, upon motion of Senator Romulo, there being no objection, the Chair directed
that a nominal voting be conducted on the policy issue of death penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the Members of the Senate would vote on this policy
question, Senator Romulo stated that a vote of Yes would mean a vote in favor of death
as a penalty to be reincorporated in the scale of penalties as provided in the Revised
Penal Code, and a vote of No would be a vote against the reincorporation of death penalty
in the scale of penalties in the Revised Penal Code.
INQUIRY OF SENATOR ALVAREZ
xxx
The Chair explained that it was agreed upon that the Body would first decide the question
whether or not death penalty should be reimposed, and thereafter, a seven-man
committee would be formed to draft the compromise bill in accordance with the result of
the voting. If the Body decides in favor of the death penalty, the Chair said that the
committee would specify the crimes on which death penalty would be imposed. It
affirmed that a vote of Yes in the nominal voting would mean a vote in favor of death
penalty on at least one crime, and that certain refinements on how the penalty would be
imposed would be left to the discretion of the seven-man committee.
xxx
INQUIRY OF SENATOR TAADA
In reply to Senator Taada's query, the Chair affirmed that even if a senator would vote
'yes' on the basic policy issue, he could still vote 'no' on the imposition of the death
penalty on a particular crime.
REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body would be voting on the basic policy issue of
whether or not the death penalty would be included in the scale of penalties found in
Article 27 of the Revised Penal Code, so that if it is voted down, the Body would
discontinue discussing Senate Bill No. 891 pursuant to the Rules, but if approved, a
special committee, as agreed upon in the caucus, is going to be appointed and whatever
course it will take will depend upon the mandate given to it by the Body later on.
The Chair affirmed Senator Tolentino's observations.
REMARKS OF SENATOR ROCO
Senator Roco stated that the Body would vote whether or not death as a penalty will be
reincorporated in the scale of penalties provided by the Revised Penal Code. However, he
pointed out that if the Body decides in favor of death penalty, the Body would still have to
address two issues: 1) Is the crime for which the death penalty is supposed to be imposed
heinous pursuant to the constitutional mandate? 2) And, if so, is there a compelling reason to
impose the death penalty for it? The death penalty, he stressed, cannot be imposed simply
because the crime is heinous."[28]
With seventeen (17) affirmative votes and seven (7) negative votes and no abstention, the
Chair declared that the Senate has voted to re-incorporate death as a penalty in the scale of
penalties as provided in the Revised Penal Code. A nine-person committee was subsequently
created to draft the compromise bill pursuant to said vote. The mandate of the committee was
to retain the death penalty, while the main debate in the committee would be the determination
of the crimes to be considered heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman of the Special Committee on the
Death Penalty, delivered his Sponsorship Speech. He began with an explanation as to why the
Senate Bill No. 891 re-imposes the death penalty by amending the Revised Penal Code and other

special penal laws and includes provisions that do not define or punish crimes but serve
purposes allied to the reimposition of the death penalty. Senator Tolentino stated:
x x x [W]hen the Senate approved the policy of reimposing the death penalty on heinous
crimes and delegated to the Special Committee the work of drafting a bill, a compromise
bill that would be the subject for future deliberations of this Body, the Committee had to
consider that the death penalty was imposed originally in the Revised Penal Code.
So, when the Constitution was approved in order to do away with the death penalty,
unless Congress should, for compelling reasons reimpose that penalty on heinous crimes,
it was obvious that it was the Revised Penal Code that was affected by that provision of
the Constitution. The death penalty, as provided in the Revised Penal Code, would be
considered as having been repealed -- all provisions on the death penalty would be
considered as having been repealed by the Constitution, until Congress should, for
compelling reasons, reimpose such penalty on heinous crimes. Therefore, it was not only
one article but many articles of the Revised Penal Code that were actually affected by the
Constitution.
And it is in consideration of this consequence of the constitutional provision that our
Special Committee had to consider the Revised Penal Code itself in making this
compromise bill or text of the bill. That is why, in the proposed draft now under
consideration which we are sponsoring, the specific provisions of the Revised Penal Code
are actually either reenacted or amended or both. Because by the effect of the
Constitution, some provisions were totally repealed, and they had to be reenacted so that
the provisions could be retained. And some of them had to be amended because the
Committee thought that amendments were proper." [29]
In response to a query by Senator Gloria Macapagal-Arroyo as to whether or not it would have
been better if the Senate were to enact a special law which merely defined and imposed the
death penalty for heinous crimes, Senator Tolentino explicated, thus:
"x x x [T]hat may be a way presenting the bill. But we must bear in mind that the death
penalty is imposed in the Revised Penal Code. Therefore, when the Constitution abolished
the death penalty, it actually was amending the Revised Penal Code to such an extent
that the Constitution provides that where the death penalty has already been imposed
but not yet carried out, then the penalty shall be reclusion perpetua, that is the penalty in
the Revised Penal Code. So we thought that it would be best to just amend the provisions
of the Revised Penal Code, restoring the death penalty for some crimes that may be
considered as heinous. That is why the bill is in this form amending the provisions of the
Revised Penal Code.
Of course, if some people want to present a special bill . . . the whole trouble is, when a
special bill is presented and we want to punish in the special bill the case of murder, for
instance, we will have to reproduce the provisions of the Revised Penal Code on murder in
order to define the crime for which the death penalty shall be imposed. Or if we want to
impose the death penalty in the case of kidnapping which is punished in the Revised
Penal Code, we will do the same -- merely reproduce. Why will we do that? So we just
followed the simpler method of keeping the definition of the crime as the same and
merely adding some aggravating circumstances and reimposing the death penalty in
these offenses originally punished in the Revised Penal Code." [30]
From March 17, 1993, when the death penalty bill was presented for discussion until August
16, 1993, the Members of the Senate debated on its provisions.
The stiffest opposition thereto was bannered by Senator Lina who kept prodding the sponsors
of the bill to state the compelling reason for each and every crime for which the supreme penalty
of death was sought. Zeroing in on the statement in the preamble of the death penalty bill that
the same is warranted in the face of "the alarming upsurge of [heinous] crimes", Senator Lina
demanded for solid statistics showing that in the case of each and every crime in the death
penalty bill, there was a significantly higher incidence of each crime after the suspension of the
death penalty on February 2, 1987 when the 1987 Constitution was ratified by the majority of the
Filipino people, than before such ratification. [31]Inasmuch as the re-impositionists could not satisfy
the abolitionists with sufficient statistical data for the latter to accept the alarming upsurge of
heinous crimes as a compelling reason justifying the reimposition of the death penalty, Senator
Lina concluded that there were, in fact, no compelling reasons therefor. In the alternative,
Senator Lina argued that the compelling reason required by the constitution was that "the State
has done everything in its command so that it can be justified to use an inhuman punishment
called death penalty".[32] The problem, Senator Lina emphasized, was that even the reimpositionists admit that there were still numerous reforms in the criminal justice system that
may and must be put in place, and so clearly, the recourse to the enactment of a death penalty
bill was not in the nature of a last resort, hence, unconstitutional in the absence of compelling

reasons. As an initial reaction to Senator Lina's contentions, Senator Tolentino explained that the
statement in the preamble is a general one and refers to all the crimes covered by the bill and
not to specific crimes. He added that one crime may not have the same degree of increase in
incidence as the other crimes and that the public demand to impose the death penalty is enough
compelling reason.[33]
Equally fit to the task was Senator Wigberto Taada to whom the battle lines were clearly
drawn. He put to issue two things: first, the definition of "heinous crimes" as provided for in the
death penalty bill; and second, the statement of compelling reasons for each and every capital
crime. His interpellation of Senator Tolentino clearly showed his objections to the bill:
"Senator Taada. x x x But what would make crimes heinous, Mr. President? Are crimes heinous
by their nature or elements as they are described in the bill or are crimes heinous because they
are punished by death, as bribery and malversation are proposed to be punished in the bill?
Senator Tolentino. They are heinous by their nature, Mr. President, but that is not supposed to
be the exclusive criterion. The nature of the offense is the most important element in
considering it heinous but, at the same time, we should consider the relation of the offense to
society in order to have a complete idea of the heinous nature of these offenses.
In the case of malversation or bribery, for instance, these offenses by themselves connected with
the effect upon society and the government have made them fall under the classification of
heinous crimes. The compelling reason for imposing the death penalty is when the offenses of
malversation and bribery becomes so grave and so serious as indicated in the substitute bill
itself, then there is a compelling reason for the death penalty.
Senator Taada. With respect to the compelling reasons, Mr. President, does the Gentleman
believe that these compelling reasons, which would call for the reimposition of the death penalty,
should be separately, distinctly and clearly stated for each crime so that it will be very clear to
one and all that not only are these crimes heinous but also one can see the compelling reasons
for the reimposition of the death penalty therefor?
Senator Tolentino. Mr. President, that matter was actually considered by the Committee. But
the decision of the Committee was to avoid stating the compelling reason for each and every
offense that is included in the substitute measure. That is why in the preamble, general
statements were made to show these compelling reasons. And that, we believe, included in the
bill, when converted into law, would be sufficient notice as to what were considered compelling
reasons by the Congress, in providing the death penalty for these different offenses.
If a matter like this is questioned before the Supreme Court, I would suppose that with the
preamble already in general terms, the Supreme Court would feel that it was the sense of
Congress that this preamble would be applicable to each and every offense described or
punishable in the measure.
So we felt that it was not necessary to repeat these compelling reasons for each and every
offense.
Senator Taada. Mr. President, I am thinking about the constitutional limitations upon the power
of Congress to enact criminal legislation, especially the provisions on the Bill of Rights,
particularly the one which says that no person shall be held to answer for a criminal offense
without due process of law.
Can we not say that under this provision, it is required that the compelling reasons be so stated
in the bill so that the bill, when it becomes a law, will clearly define the acts and the omissions
punished as crimes?
Senator Tolentino. Mr. President, I believe that in itself, as substantive law, this is
sufficient. The question of whether there is due process will more or less be a matter of
procedure in the compliance with the requirements of the Constitution with respect to due
process itself which is a separate matter from the substantive law as to the definition and
penalty for crimes.
Senator Taada. Under the Constitution, Mr. President, it appears that the reimposition of the
death penalty is subject to three conditions and these are:
1.

Congress should so provide such reimposition of the death penalty;

2.

There are compelling reasons; and

3.

These involve heinous crimes.

Under these provision of the Constitution, paragraph 1, Section 13, does the
distinguished Gentleman not feel that Congress is bound to state clearly the compelling
reasons for the reimposition of the death penalty for each crime, as well as the elements
that make each of the crimes heinous included in the bill?
Senator Tolentino. Mr. President, that is a matter of opinion already. I believe that
whether we state the compelling reasons or not, whether we state why a certain offense
is heinous, is not very important. If the question is raised in the Supreme Court, it is not
what we say in the bill that will be controlling but what the Supreme Court will fell as a
sufficient compelling reason or as to the heinous nature whether the crime is heinous or
not. The accused can certainly raise the matter of constitutionality but it will not go into
the matter of due process. It will go into the very power of Congress to enact a bill
imposing the death penalty. So that would be entirely separate from the matter of due
process." [34]
Senator Francisco Tatad, on his part, pointed out that the death penalty bill violated our
international commitment in support of the worldwide abolition of capital punishment, the
Philippines being a signatory to the International Covenant on Civil and Political Rights and its
Second Optional Protocol. Senator Ernesto Herrera clarified, however, that in the
UnitedNations, subject matters are submitted to the different committees which vote on them for
consideration in the plenary session. He stressed that unless approved in the plenary session, a
declaration would have no binding effect on signatory countries. In this respect, the Philippines
cannot be deemed irrevocably bound by said covenant and protocol considering that these
agreements have reached only the committee level. [35]
After the protracted debate, the Members of the Senate voted on Senate Bill No. 891 on third
reading. With seventeen (17) affirmative votes, four (4) negative votes, and one abstention, the
death penalty bill was approved on third reading on August 16, 1993.
The Senate's vote to pass Senate Bill No. 891 on third reading on August 16, 1993 was a
vindication of, the House of Representatives. The House had, in the Eight Congress, earlier
approved on third reading House Bill No. 295 on the restoration of the death penalty for certain
heinous crimes. The House was in effect rebuffed by the Senate when the Senate killed House
Bill No. 295 along with other bills coming from the House. House Bill No. 295 was resurrected
during the Ninth Congress in the form of House Bill No. 62 which was introduced by twenty one
(21) Members of the House of Representatives on October 27, 1992. House Bill No. 62 was a
merger of House Bill Nos. 125, 187, 411, 764, 506, 781, 955, 1565, 1586, 2206, 3238, 3576 and
3632 authored by various Members of the Lower House.
In his Sponsorship Speech, Representative Manuel R. Sanchez of Rizal ably essayed the
constitutional vesting in Congress of the power to re-impose the death penalty for compelling
reasons invoking heinous crimes as well as the nature of this constitutional pre-requisite to the
exercise of such power.
"Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I quote:
'Neither shall death penalty be imposed, unless, for compelling reasons involving
heinous crimes, the Congress shall thereafter provide for it . . .'
The phrase 'unless, for compelling reasons involving heinous crimes, the Congress shall
thereafter provide for it was introduced as an amendment by then Comm. Christian Monsod.
The import of this amendment is unmistakable. By this amendment, the death penalty was
not completely abolished by the 1987 Constitution. Rather, it merely suspended the death
penalty and gave Congress the discretion to review it at the propitious time.
Arguing for the inclusion of said amendment in the fine provision, Comm. Ricardo Romulo
said, and I quote:
"'The people should have the final say on the subject, because, at some future time, the
people might want to restore death penalty through initiative and referendum.
Commissioner Monsod further argued, and I quote:
We cannot presume to have the wisdom of the ages. Therefore, it is entirely possible in
the future that circumstances may arise which we should not preclude today.
xxx
xxx

xxx

I believe that [there] are enough compelling reasons that merit the reimposition of the
capital punishment. The violent manner and the viciousness in which crimes are now committed

with alarming regularity, show very clearly a patent disregard of the law and a mockery of public
peace and order.
In the public gallery section today are the relatives of the victims of heinous crimes the
Hultmans, the Maguans, the Vizcondes, the Castanoses, and many more, and they are all crying
for justice. We ought to listen to them because their lives, their hopes, their dreams, their future
have fallen asunder by the cruel and vicious criminality of a few who put their selfish interest
above that of society.
Heinous crime is an act or series of acts which, by the flagrantly violent manner in which the
same was committed or by the reason of its inherent viciousness, shows a patent disregard and
mockery of the law, public peace and order, or public morals. It is an offense whose essential
and inherent viciousness and atrocity are repugnant and outrageous to a civilized society and
hence, shock the moral self of a people.
Of late, we are witness to such kind of barbaric crimes.
The Vizconde massacre that took the lives of a mother and her two lovely daughters, will
stand in the people's memory for many long years as the epitome of viciousness and atrocity
that are repugnant to civilized society.
The senseless murder of Eldon Maguan, and up-and-coming young business executive, was
and still is an outrage that shocks the moral self of our people.
The mind-boggling death of Maureen Hultmann, a comely 16 year-old high
school student who dreamt of becoming a commercial model someday, at the hands of a crazed
man was so repulsive, so brutal that it offends the sensibilities of Christians and non-Christians
alike
The cold-blooded double murder of Cochise Bernabe and Beebom Castanos, the lovely and
promising couple from the University of the Philippines, is eternally lodged in the recesses of our
minds and still makes our stomach turn in utter disgust.
xxx
xxx

xxx

The seriousness of the situation is such that if no radical action is taken by this body in
restoring death penalty as a positive response to the overwhelming clamor of the people, then,
as Professor Esteban Bautista of the Philippine Law Center said, and I quote:
'When people begin to believe that organized society is unwilling or unable to impose upon
criminal offenders the punishment they deserve, there are sown the seeds of anarchy of selfhelp, of vigilante justice and lynch law. The people will take the law upon their hands and exact
vengeance in the nature of personal vendetta.'
It is for this reason, Mr. Speaker, that I stand here and support House Bill No. 62.
As duly elected Representatives of our people, collectively, we ought to listen to our
constituents and heed their plea a plea for life, liberty and pursuit of their happiness under a
regime of justice and democracy, and without threat that their loves ones will be kidnapped,
raped or butchered.
But if such a misfortune befalls them, there is the law they could rely on for justice. A law
that will exact retribution for the victims. A law that will deter future animalistic behavior of the
criminal who take their selfish interest over and above that of society. A law that will deal a
deathblow upon all heinous crimes.
Mr. Speaker, my distinguished colleagues, for the preservation of all that we hold dear
and sacred, let us restore the death penalty." [36]
A studious comparison of the legislative proceedings in the Senate and in the House of
Representatives reveals that, while both Chambers were not wanting of oppositors to the death
penalty, the Lower House seemed less quarrelsome about the form of the death penalty bill as a
special law specifying certain heinous crimes without regard to the provisions of the Revised
Penal Code and more unified in the perception of what crimes are heinous and that the fact of
their very heinousness involves the compulsion and the imperative to suppress, if not completely
eradicate, their occurrence. Be it the foregoing general statement of Representative Sanchez or
the following details of the nature of the heinous crimes enumerated in House Bill No. 62 by
Representative Miguel L. Romero of Negros Oriental, there was clearly, among the hundred or so
re-impositionists in the Lower House, no doubt as to their cause:
"My friends, this bill provides for the imposition of the death penalty not only for the importation,
manufacture and sale of dangerous drugs, but also for other heinous crimes such as reason;
parricide; murder; kidnapping; robbery; rape as defined by the Revised Penal Code with or

without additionally defined circumstances; plunder, as defined in R.A. 7080; piracy, as defined
under Section 2 of PD 532; carnapping, as defined in Section 2 of RA 6539, when the owner,
driver or occupant is killed; hijacking, as defined in xxx RA 6235; and arson resulting in the death
of any occupants.
All these crimes have a common denominator which qualifies them to the level of heinous
crimes. A heinous crime is one which, by reason of its inherent or manifest wickedness,
viciousness, atrocity or perversity, is repugnant and outrageous to the common standards of
decency and morality in a just and civilized society.
For instance, the crime of treason is defined as a breach of allegiance to a government,
committed by a person who owes allegiance to it (U.S. v. Abad 1 Phil. 437). By the 'allegiance' is
meant the obligation of fidelity and obedience which individuals owe to the government under
which they live or to their sovereign in return for the protection which they receive (52 Am Jur
797).
In kidnapping, the though alone of one's loved one being held against his or her own will in some
unidentified xxx house by a group of scoundrels who are strangers is enough terrify and send
shivers of fear through the spine of any person, even scoundrels themselves.
In robbery accompanied by rape, intentional mutilation or arson, what is being punished by
death is the fact that the perpetrator, at the time of the commission of the crime, thinks nothing
of the other crime he commits and sees it merely as a form of self-amusement. When a
homicide is committed by reason of the robbery, the culprits are perceived as willing to take
human life in exchange for money or other personal property.
In the crime of rape, not only do we speak of the pain and agony of the parents over the personal
shock and suffering of their child but the stigma of the traumatic and degrading incident which
has shattered the victim's life and permanently destroyed her reputation, not to mention the
ordeal of having to undergo the shameful experience of police interrogation and court hearings.
Piracy, which is merely a higher form of robbery, is punished for the universal hostility of the
perpetrators against their victims who are passengers and complement of the vessel, and
because of the fact that, in the high seas, no one may be expected to be able to come to the
rescue of the helpless victims. For the same reason, Mr. Speaker, the crime of air piracy is
punished due to the evil motive of the hijackers in making unreasonable demands upon the
sovereignty of an entire nation or nations, coupled with the attendant circumstance of subjecting
the passengers to terrorism." [37]
The debate on House Bill No. 62 lasted from October 27, 1992 to February 11, 1993. On
February 11, 1993, the Members of the House of Representatives overwhelmingly approved the
death penalty bill on second reading.
On February 23, 1993, after explaining their votes, the Members of the House of
Representatives cast their vote on House Bill No. 62 when it was up for consideration on third
reading. [38] The results were 123 votes in favor, 26 votes against, and 2 abstentions
After the approval on third reading of House Bill No. 62 on February 23, 1993 and of Senate
Bill No. 891 on August 16, 1993, the Bicameral Conference Committee convened to incorporate
and consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An Act to Impose the Death
Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, as
Amended, Other Special Penal Laws, and for Other Purposes," took effect. [39]
Between December 31, 1993, when R.A. No. 7659 took effect, and the present time, criminal
offenders have been prosecuted under said law, and one of them, herein accused-appellant, has
been, pursuant to said law, meted out the supreme penalty of death for raping his ten-year old
daughter. Upon his conviction, his case was elevated to us on automatic review. On June 25,
1996, we affirmed his conviction and the death sentence.
Now, accused-appellant comes to us in the heels of this court's affirmation of his death
sentence and raises for the first time the issue of the constitutionality of R.A. 7659. His thesis is
two-fold: (1) that the death penalty law is unconstitutional per se for having been enacted in the
absence of compelling reasons therefor; and (2) that the death penalty for rape is a cruel,
excessive and inhuman punishment in violation of the constitutional proscription against
punishment of such nature.
We reject accused-appellant's proposition.

Three justices interposed their dissent hereto, agreeing with accused-appellant's view that
Congress enacted R.A. No. 7659 without complying with the twin requirements of compelling
reasons and heinous crimes.
At this juncture, the detailed events leading to the enactment of R.A. No. 7659 as unfurled in
the beginning of this disquisition, necessarily provide the context for the following analysis.
Article III, Section 19 (1) of the 1987 Constitution plainly vests in Congress the power to reimpose the death penalty "for compelling reasons involving heinous crimes". This power is not
subsumed in the plenary legislative power of Congress, for it is subject to a clear showing of
"compelling reasons involving heinous crimes."
The constitutional exercise of this limited power to re-impose the death penalty entails (1)
that Congress define or describe what is meant by heinous crimes; (2) that Congress specify and
penalize by death, only crimes that qualify as heinous in accordance with the definition or
description set in the death penalty bill and/or designate crimes punishable by reclusion
perpetua to death in which latter case, death can only be imposed upon the attendance of
circumstances duly proven in court that characterize the crime to be heinous in accordance with
the definition or description set in the death penalty bill; and (3) that Congress, in enacting this
death penalty bill be singularly motivated by "compelling reasons involving heinous crimes."
In the second whereas clause of the preamble of R.A. No. 7659, we find the definition or
description of heinous crimes. Said clause provides that
"x x x the crimes punishable by death under this Act are heinous for being grievous,
odious and hateful offenses and which, by reason of their inherent or manifest wickedness,
viciousness, atrocity and perversity are repugnant and outrageous to the common standards
and norms of decency and morality in a just, civilized and ordered society."
Justice Santiago Kapunan, in his dissenting opinion in People v. Alicando, [40] traced the
etymological root of the word "heinous" to the Early Spartans' word, "haineus", meaning, hateful
and abominable, which, in turn, was from the Greek prefix "haton", denoting acts so hatefully or
shockingly evil.
We find the foregoing definition or description to be a sufficient criterion of what is to be
considered a heinous crime. This criterion is deliberately undetailed as to the circumstances of
the victim, the accused, place, time, the manner of commission of crime, its proximate
consequences and effects on the victim as well as on society, to afford the sentencing authority
sufficient leeway to exercise his discretion in imposing the appropriate penalty in cases where
R.A. No. 7659 imposes not a mandatory penalty of death but the more flexible penalty
ofreclusion perpetua to death.
During the debates on the proposed death penalty bill, Senators Lina and Taada grilled the
sponsors of the bill as regards what they perceived as a mere enumeration of capital crimes
without a specification of the elements that make them heinous. They were oblivious to the fact
that there were two types of crimes in the death penalty bill: first, there were crimes penalized
by reclusion perpetua to death; and second, there were crimes penalized by mandatory capital
punishment upon the attendance of certain specified qualifying circumstances.
Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua to death:
(1)

Treason (Sec. 2);

(2)

Qualified piracy (Sec. 3);

(3)

Parricide (Sec. 5);

(4)

Murder (Sec. 6);

(5)

Infanticide (Sec. 7);

(6)
Kidnapping and serious illegal detention if attended by any of the following four
circumstances: (a) the victim was detained for more than three days; (b) it was committed
simulating public authority; (c) serious physical injuries were inflicted on the victim or threats to
kill him were made; and (d) if the victim is a minor, except when the accused is any of the
parents, female or a public officer (Sec. 8);
(7)

Robbery with homicide, rape or intentional mutilation (Sec. 9);

(8)
Destructive arson if what is burned is (a) one or more buildings or edifice; (b) a building
where people usually gather; (c) a train, ship or airplane for public use; (d) a building or factory
in the service of public utilities; (e) a building for the purpose of concealing or destroying
evidence Or a crime; (f) an arsenal, fireworks factory, or government museum; and (g) a

storehouse or factory of explosive materials located in an inhabited place; or regardless of what

is burned, if the arson is perpetrated by two or more persons (Sec. 10);
(9)
Rape attended by any of the following circumstances: (a) the rape is committed with a
deadly weapon; (b) the rape is committed by two or more persons; and (c) the rape is attempted
or frustrated and committed with homicide (Sec. 11);
(10) Plunder involving at least P50 million (Sec. 12);
(11) Importation of prohibited drugs (Sec. 13);
(12) Sale, administration, delivery, distribution, and transportation of prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain specified amounts (id.);
(16) Cultivation of plants which are sources of prohibited drugs (id.)
(17) Importation of regulated drugs (Sec. 14);
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery, transportation, and distribution of regulated
drugs (id.);
(20) Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15);
(21) Possession or use of regulated drugs in specified amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to account dangerous drugs confiscated by the
arresting officer (Sec. 17);
(23) Planting evidence of dangerous drugs in person or immediate vicinity of another to
implicate the latter (Sec. 19); and
(24) Carnapping where the owner, driver or occupant of the carnapped motor vehicle is killed or
raped (Sec. 20).
All the foregoing crimes are not capital crimes per se, the uniform penalty for all of them being
not mandatory death but the flexible penalty of reclusion perpetua to death. In other words, it is
premature to demand for a specification of the heinous elements in each of foregoing crimes
because they are not anyway mandatorily penalized with death. The elements that call for the
imposition of the supreme penalty of death in these crimes, would only be relevant when the trial
court, given the prerogative to impose reclusion perpetua, instead actually imposes the death
penalty because it has, in appreciating the evidence proffered before it, found the attendance of
certain circumstances in the manner by which the crime was committed, or in the person of the
accused on his own or in relation to the victim, or in any other matter of significance to the
commission of the crime or its effects on the victim or on society, which circumstances
characterize the criminal acts as grievous, odious, or hateful, or inherently or manifestly wicked,
vicious, atrocious or perverse as to be repugnant and outrageous to the common standards and
norms of decency and morality in a just, civilized and ordered society.
On the other hand, under R.A. No. 7659, the mandatory penalty of death is imposed in the
following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law enforcement and he refrains from arresting or
prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or
death in consideration of any offer, promise, gift or present, he shall suffer the penalty for the
offense which was not prosecuted.
If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of
death." (Sec. 4)
(2)
Kidnapping and serious illegal detention for ransom resulting in the death of the victim or
the victim is raped, tortured or subjected to dehumanizing acts

"The penalty shall be death where the kidnapping or detention was committed for the purpose of
ransom from the victim or any other person, even if none of the circumstances above-mentioned
were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subject to
torture or dehumanizing acts, the maximum penalty [of death] shall be imposed." (Sec. 8)
(3)

Destructive arson resulting in death

"If as a consequence of the commission of any of the acts penalized under this Article, death
results, the mandatory penalty of death shall be imposed." (Sec. 10)
(4)

Rape with the victim becoming insane, rape with homicide and qualified

"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall
be death.
xxx

xxx

xxx

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be
death.
The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent or the victim.
2.

when the victim is under the custody of the police or military authorities.

3. when the rape is committed in full view of the husband, parent, any of the children or other
relatives within the third degree of consanguinity.
4.

when the victim is a religious or a child below seven (7) years old

5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome
(AIDS) disease.
6. when committed by any member of the Armed Forces of the Philippines or the Philippine
National Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered permanent physical
mutilation." (Sec. 11 )
(5)
Sale, administration, delivery, distribution and transportation of prohibited drugs where the
victim is a minor or the victim dies
"Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the
offense is a minor, or should a prohibited drug involved in any offense under this Section be the
proximate cause of the death of victim thereof, the maximum penalty [of death] herein provided
shall be imposed." (Sec. 13)
(6) Maintenance of den, dive, or resort for users of prohibited drugs where the victim is a minor
or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum of the
penalty [of death] shall be imposed in every case where a prohibited drug is administered,
delivered or sold to a minor who is allowed to use the same in such place.
Should a prohibited drug be the proximate case of the death of a person using the same in such
den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 13)
(7)
Sale, administration, dispensation, delivery, distribution and transportation of regulated
drugs where the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the
offense is a minor, or should a regulated drug involved in any offense under this Section be the
proximate cause of the death of a victim thereof, the maximum penalty [of death] herein
provided shall be imposed." (Sec. 14)

(8)
Maintenance of den, dive, or resort for users of regulated drugs where the victim is a minor
or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum penalty
[of death] herein provided shall be imposed in every case where a regulated drug is
administered, delivered or sold to a minor who is allowed to use the same in such place.
Should a regulated drug be the proximate cause of death of a person using the same in such
den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 15)
(9)
Drug offenses if convicted are government officials, employees or officers including
members of police agencies and armed forces
"The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13
of Article II and Sections 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III [of the Dangerous Drugs
Act of 1972] shall be imposed, if those found guilty or any of the same offenses are government
officials, employees or officers including members of police agencies and the armed forces."
(Sec. 19)
(10) Planting of dangerous drugs as evidence in drug offenses with the mandatory death penalty
if convicted are government officials, employees or officers
"Any such above government official, employee or officer who is found guilty of 'planting' any
dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15,
and 16 of Article III (of the Dangerous Drugs Act of 1972) in the person or in the immediate
vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein
provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in their qualified form
"When in the commission of the crime, advantage was taken by the offender of his public
position, the penalty to be imposed shall be in its maximum [of death] regardless of mitigating
circumstances.
The maximum penalty [of death] shall be imposed if the offense was committed by any person
who belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons collaborating,
confederating or mutually helping one another for purposes of gain in the commission of any
crime." (Sec. 23)
It is specifically against the foregoing capital crimes that the test of heinousness must be
squarely applied.
The evil of a crime may take various forms. There are crimes that are, by their very nature,
despicable, either because life was callously taken or the victim is treated like an animal and
utterly dehumanized as to completely disrupt the normal course of his or her growth as a human
being. The right of a person is not only to live but to live a quality life, and this means that the
rest of society is obligated to respect his or her individual personality, the integrity and the
sanctity of his or her own physical body, and the value he or she puts in his or her own spiritual,
psychological, material and social preferences and needs. Seen in this light, the capital crimes of
kidnapping and serious illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death,
and drug offenses involving minors or resulting in the death of the victim in the case of other
crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention
where the victim is detained for more than three days or serious physical injuries were inflicted
on the victim or threats to kill him were made or the victim is a minor, robbery with homicide,
rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or
occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance and implications
of the subject criminal acts in the scheme of the larger socio-political and economic context in
which the state finds itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the
government and impoverished the population, the Philippine Government must muster the
political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality
that so deeply entrenched itself in the structures of society and psyche of the populace. Terribly
lacking the money to provide even the most basic services to its people, any form of

misappropriation or misapplication of government funds translates to an actual threat to the very

existence of government, and in turn, the very survival of the people it governs over. Viewed in
this context, no less heinous are the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving government officials, employees
or officers, that their perpetrators must not be allowed to cause further destruction and damage
to society.
We have no doubt, therefore, that insofar as the element of heinousness is concerned, R.A.
No. 7659 has correctly identified crimes warranting the mandatory penalty of death. As to the
other crimes in R.A. No. 7659 punished by reclusion perpetua to death, they are admittingly no
less abominable than those mandatorily penalized by death. The proper time to determine their
heinousness in contemplation of law, is when on automatic review, we are called to pass on a
death sentence involving crimes punishable by reclusion perpetua to death under R.A. No. 7659,
with the trial court meting out the death sentence in exercise of judicial discretion. This is not to
say, however, that the aggravating circumstances under the Revised Penal Code need be
additionally alleged as establishing the heinousness of the crime for the trial court to validly
impose the death penalty in the crimes under R.A. No. 7659 which are punished with the flexible
penalty of reclusion perpetua to death.
In the first place, the 1987 Constitution did not amend or repeal the provisions of the
Revised Penal Code relating to aggravating circumstances. Secondly, R.A. No. 7659, while it
specifies circumstances that generally qualify a crime provided therein to be punished by the
maximum penalty of death, neither amends nor repeals the aggravating circumstances under
the Revised Penal Code. Thus, construing R.A. No. 7659 in parimateria with the Revised Penal
Code, death may be imposed when (1) aggravating circumstances attend the commission of the
crime as to make operative the provision of the Revised Penal Code regarding the imposition of
the maximum penalty; and (2) other circumstances attend the commission of the crime which
indubitably characterize the same as heinous in contemplation of R.A. No. 7659 that justify the
imposition of the death, albeit the imposable penalty is reclusion perpetua to death. Without
difficulty, we understand the rationale for the guided discretion granted in the trial court to
cognize circumstances that characterize the commission of the crime as heinous. Certainly there
is an infinity of circumstances that may attend the commission of a crime to the same extent
that there is no telling the evil that man is capable of. The legislature cannot and need not
foresee and inscribe in law each and every loathsome act man is capable of. It is sufficient thus
that R.A. 7659 provides the test and yardstick for the determination of the legal situation
warranting the imposition of the supreme penalty of death. Needless to say, we are not unaware
of the ever existing danger of abuse of discretion on the part of the trial court in meting out the
death sentence. Precisely to reduce to nil the possibility of executing an innocent man or one
criminal but not heinously criminal, R.A. 7659 is replete with both procedural and substantive
safeguards that ensure only the correct application of the mandate of R.A. No. 7659.
In the course of the congressional debates on the constitutional requirement that the death
penalty be re-imposed for compelling reasons involving heinous crimes, we note that the main
objection to the death penalty bill revolved around the persistent demand of the abolitionists for
a statement of the reason in each and every heinous crime and statistical proof the such
compelling reason actually exists.
We believe, however, that the elements of heinousness and compulsion are inseparable and
are, in fact, interspersed with each other. Because the subject crimes are either so revolting and
debasing as to violate the most minimum of the human standards of decency or its effects,
repercussions, implications and consequences so destructive, destabilizing, debilitating, or
aggravating in the context of our socio-political and economic agenda as a developing nation,
these crimes must be frustrated, curtailed and altogether eradicated. There can be no ifs or buts
in the face of evil, and we cannot afford to wait until we rub elbows with it before grasping it by
the ears and thrashing it to its demission.
The abolitionists in congress insisted that all criminal reforms first be pursued and
implemented before the death penalty be re-imposed in case such reforms prove
unsuccessful. They claimed that the only compelling reason contemplated of by the constitution
is that nothing else but the death penalty is left for the government to resort to that could check
the chaos and the destruction that is being caused by unbridled criminality. Three of our
colleagues, are of the opinion that the compelling reason required by the constitution is that
there occurred a dramatic and significant change in the socio-cultural milieu after the suspension
of the death penalty on February 2, 1987 such as an unprecedented rise in the incidence of
criminality. Such are, however, interpretations only of the phrase "compelling reasons" but not of
the conjunctive phrase "compelling reasons involving heinous crimes". The imposition of the
requirement that there be a rise in the incidence of criminality because of the suspension of the
death penalty, moreover, is an unfair and misplaced demand, for what it amounts to, in fact, is a
requirement that the death penalty first proves itself to be a truly deterrent factor in criminal

behavior. If there was a dramatically higher incidence of criminality during the time that the
death penalty was suspended, that would have proven that the death penalty was indeed a
deterrent during the years before its suspension. Suffice it to say that the constitution in the first
place did not require that the death penalty be first proven to be a deterrent; what it requires is
that there be compelling reasons involving heinous crimes.
Article III, Section 19 (1) of the 1987 Constitution simply states that congress, for compelling
reasons involving heinous crimes, may re-impose the death penalty. Nothing in the said
provision imposes a requirement that for a death penalty bill to be valid, a positive manifestation
in the form of a higher incidence of crime should first be perceived and statistically proven
following the suspension of the death penalty. Neither does the said provision require that the
death penalty be resorted to as a last recourse when all other criminal reforms have failed to
abate criminality in society. It is immaterial and irrelevant that R.A. No. 7659 cites that there has
been an "alarming upsurge of such crimes", for the same was never intended by said law to be
the yardstick to determine the existence of compelling reasons involving heinous
crimes. Fittingly, thus, what R.A. No. 7659 states is that "the Congress, in the interest of justice,
public order and rule of law, and the need to rationalize and harmonize the penal sanctions for
heinous crimes, finds compelling reasons to impose the death penalty for said crimes."
We now proceed to answer accused-appellant's other ground for attacking the
constitutionality of R.A. No. 7659, i.e., that the death penalty imposed in rape is violative of the
constitutional proscription against cruel, degrading or inhuman punishment.
Accused-appellant first claims that the death penalty is per se a cruel, degrading or inhuman
punishment as ruled by the United States (U.S.) Supreme Court in Furman v. Georgia. [41] To state,
however, that the U.S. Supreme Court, in Furman, categorically ruled that the death penalty is a
cruel, degrading or inhuman punishment, is misleading and inaccurate.
The issue in Furman was not so much death penalty itself but the arbitrariness pervading the
procedures by which the death penalty was imposed on the accused by the sentencing
jury. Thus, the defense theory in Furman centered not so much on the nature of the death
penalty as a criminal sanction but on the discrimination against the black accused who is meted
out the death penalty by a white jury that is given the unconditional discretion to determine
whether or not to impose the death penalty. In fact, the long road of the American abolitionist
movement leading to the landmark case of Furman was trekked by American civil rights
advocates zealously fighting against racial discrimination. Thus, the U.S. Supreme Court stated
in Furman:
"We cannot say from facts disclosed in these records that these defendants were sentenced to
death because they were black. Yet our task is not restricted to an effort to divine what motives
impelled these death penalties. Rather, we deal with a system of law and of justice that leaves
to the uncontrolled discretion of judges or juries the determination whether defendants
committing these crimes should die x x x.
xxx
In a Nation committed to equal protection of the laws there is no permissible 'caste' aspect of law
enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty
enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor
and despised x x x.
xxx
Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with
discrimination and discrimination is an ingredient not compatible with the idea of equal
protection of the laws that is implicit in the ban on 'cruel and unusual' punishments."
Furman, thus, did not outlaw the death penalty because it was cruel and unusual per
se. While the U.S. Supreme Court nullified all discretionary death penalty statutes in Furman, it
did so because the discretion which these statutes vested in the trial judges and sentencing
juries was uncontrolled and without any parameters, guidelines, or standards intended to lessen,
if not altogether eliminate, the intervention of personal biases, prejudices and discriminatory acts
on the part of the trial judges and sentencing juries.
Consequently, in the aftermath of Furman, when most of the states re-enacted their death
penalty statutes now bearing the procedural checks that were required by the U.S. Supreme
Court, said court affirmed the constitutionality of the new death penalty statutes in the cases of
Gregg v. Georgia,[42] Jurek v. Texas,[43] and Profitt v. Florida.[44]
Next, accused-appellant asseverates that the death penalty is a cruel, inhuman or degrading
punishment for the crime of rape mainly because the latter, unlike murder, does not involve the

taking of life. In support of his contention, accused-appellant largely relies on the ruling of the
U.S. Supreme Court in Coker v. Georgia. [45]
In Coker, the U.S. Supreme Court ruled as follows:
"x x x It is now settled that the death penalty is not invariably cruel and unusual punishment
within the meaning of the Eighth Amendment; it is not inherently barbaric or an unacceptable
mode of punishment for crime; neither is it always disproportionate to the crime for which it is
imposed. It is also established that imposing capital punishment, at least for murder, in
accordance with the procedures provided under the Georgia statutes saves the sentence from
the infirmities which led the Court to invalidate the prior Georgia capital punishment statute in
Furman v. Georgia x x x.
xxx
In Gregg [v. Georgia] x x x the Court's judgment was that the death penalty for deliberate murder
was neither the purposeless imposition of severe punishment nor a punishment grossly
disproportionate to the crime. But the Court reserved the question of the constitutionality of the
death penalty when imposed for other crimes. x x x
That question, with respect to rape of an adult woman, is now before us.
xxx
x x x [T]he public judgment with respect to rape, as reflected in the statutes providing the
punishment for that crime, has been dramatically different. In reviving death penalty laws to
satisfy Furman's mandate, none of the States that had not previously authorized death for rape
chose to include rape among capital felonies. Of the 16 States in which rape had been a capital
offense, only three provided the death penalty for rape of an adult woman in their revised
statutes -- Georgia, North Carolina. and Louisiana. In the latter two States, the death penalty
was mandatory for those found guilty, and those laws were invalidated by Woodson and
Roberts. When Louisiana and North Carolina, respondent to those decisions, again revised their
capital punishment laws, they reenacted the death penalty for murder but not for rape; none of
the seven other legislatures that to our knowledge have amended or replaced their death
penalty statutes since July 2, 1976, including four States (in addition to Louisiana and North
Carolina) that had authorized the death sentence for rape prior to 1972 and had reacted to
Furman with mandatory statutes, included rape among the crimes for which death was an
authorized punishment.
xxx
It should be noted that Florida, Mississippi, and Tennessee also authorized the death penalty in
some rape cases, but only where the victim was a child, and the rapist an adult, the Tennessee
statute has since been invalidated because the death sentence was mandatory. x x x The upshot
is that Georgia is the sole jurisdiction in the United States at the present time that authorizes a
sentence of death when the rape victim is an adult woman, and only two other jurisdictions
provide capital punishment when the victim is a child
The current judgment with respect to the death penalty for rape is not wholly unanimous among
state legislatures, but it obviously weighs very heavily on the side of rejecting capital punishment
as a suitable penalty for raping an adult woman.
x x x [T]he legislative rejection of capital punishment for rape strongly confirms our own
judgment, which is that death is indeed a disproportionate penalty for the crime of raping an
adult woman.
We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral
sense and in its almost total contempt for the personal integrity and autonomy of the female
victim and for the latter's privilege of choosing those with whom intimate relationships are to be
established. Short of homicide, it is the 'ultimate violation of self.' It is also a violent crime
because it normally involves force, or the threat of force or intimidation, to over come the will
and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the
female and can also inflict mental and psychological damage. Because it undermines the
community's sense of security, there is public injury as well.
Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of
the injury to the person and to the public, it does not compare with murder, which does involve
the unjustified taking of human life. Although it may be accompanied by another crime, rape by
definition does not include the death of or even the serious injury to another person. The
murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the

murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and
normally is not beyond repair. We have the abiding conviction that the death penalty, which 'is
unique in its severity and irrevocability' x x x is an excessive penalty for the rapist who, as such,
does not take human life."
The U.S. Supreme Court based its foregoing ruling on two grounds: first, that the public has
manifested its rejection of the death penalty as a proper punishment for the crime of rape
through the willful omission by the state legislatures to include rape in their new death penalty
statutes in the aftermath of Furman; and second, that rape, while concededly a dastardly
contemptuous violation of a woman's spiritual integrity, physical privacy, and psychological
balance, does not involve the taking of life.
Anent the first ground, we fail to see how this could have any bearing on the Philippine
experience and in the context of our own culture.
Anent the second ground, we disagree with the court's predicate that the gauge of whether
or not a crime warrants the death penalty or not, is the attendance of the circumstance of death
on the part of the victim. Such a premise is in fact an ennobling of the biblical notion of
retributive justice of "an eye for an eye, a tooth for a tooth". We have already demonstrated
earlier in our discussion of heinous crimes that the forfeiture of life simply because life was
taken, never was a defining essence of the death penalty in the context of our legal history and
cultural experience; rather, the death penalty is imposed in heinous crimes because the
perpetrators thereof have committed unforgivably execrable acts that have so deeply
dehumanized a person or criminal acts with severely destructive effects on the national efforts to
lift the masses from abject poverty through organized governmental strategies based on a
disciplined and honest citizenry, and because they have so caused irreparable and substantial
injury to both their victim and the society and a repetition of their acts would pose actual threat
to the safety of individuals and the survival of government, they must be permanently prevented
from doing so. At any rate, this court has no doubts as to the innate heinousness of the crime of
rape, as we have held in the case of People v. Cristobal: [46]
"Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice
and charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to
which every person has a right. It causes grave damage that can mark the victim for life. It is
always an intrinsically evil act xxx an outrage upon decency and dignity that hurts not only the
victim but the society itself."
We are not unaware that for all the legal posturings we have so essayed here, at the heart of
the issue of capital punishment is the wistful, sentimental life-and-death question to which all of
us, without thinking, would answer, "life, of course, over death". But dealing with the
fundamental question of death provides a context for struggling with even more basic questions,
for to grapple with the meaning of death is, in an indirect way, to ask the meaning of
life. Otherwise put, to ask what the rights are of the dying is to ask what the rights are of the
living.
"Capital punishment ought not to be abolished solely because it is substantially repulsive, if
infinitely less repulsive than the acts which invoke it. Yet the mounting zeal for its abolition
seems to arise from a sentimentalized hyperfastidiousness that seeks to expunge from the
society all that appears harsh and suppressive. If we are to preserve the humane society we will
have to retain sufficient strength of character and will to do the unpleasant in order that
tranquillity and civility may rule comprehensively. It seems very likely that capital punishment is
a x x x necessary, if limited factor in that maintenance of social tranquillity and ought to be
retained on this ground. To do otherwise is to indulge in the luxury of permitting a sense of false
delicacy to reign over the necessity of social survival." [47]
WHEREFORE, in view of all the foregoing, the Motion for Reconsideration and the
Supplemental Motion for Reconsideration are hereby DENIED [48] for LACK OF MERIT.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto the
judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of attempted
murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to
Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to the
house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting
with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be killed because of a land dispute
between them and that Mandaya should accompany the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all
armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the
instance of his companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter, Petitioner,
Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that Palangpangan was in another City
and her home was then occupied by her son-in-law and his family. No one was in the room when the accused fired
the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness testified that before the five men
left the premises, they shouted: "We will kill you (the witness) and especially Bernardina Palangpangan and we will
come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by the Court of
Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this Court a modification of
the judgment by holding him liable only for an impossible crime, citing Article 4(2) of the Revised Penal Code which
provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against persons or property, were it
not for the inherent impossibility of its accomplishment or on account of the employment of
inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the night he and his companions
riddled it with bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the
facts were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent alleged that
there was intent. Further, in its Comment to the Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the inherent impossibility of its
accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or accident other than
petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did not
sleep at her house at that time. Had it not been for this fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal
Code where:

. . . it was necessary that the execution of the act has been commenced, that the person conceiving
the idea should have set about doing the deed, employing appropriate means in order that his intent
might become a reality, and finally, that the result or end contemplated shall have been physically
possible. So long as these conditions were not present, the law and the courts did not hold him
criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist
School, recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at something
quite impossible or carried out with means which prove inadequate, would constitute a felony against person or
against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense against person or property because:
(1) the commission of the offense is inherently impossible of accomplishment: or (2) the means employed is either
(a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender
must be by its nature one impossible of accomplishment. 11 There must be either impossibility of accomplishing the
intended act 12 in order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.

13

Thus:

Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation
is to perform an act in violation of the law; (2) there is intention to perform the physical act; (3) there
is a performance of the intended physical act; and (4) the consequence resulting from the intended
act does not amount to a crime. 14
The impossibility of killing a person already dead

15

falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended crime. 16 One example is the man who puts his hand in the coat
pocket of another with the intention to steal the latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although
in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his end.
One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with
intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out, however, that the
latter was in a different place. The accused failed to hit him and to achieve his intent. The Court convicted the
accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party imagined where he was, and
where the bullet pierced the roof, renders it no less an attempt to kill. It is well settled principle of
criminal law in this country that where the criminal result of an attempt is not accomplished simply
because of an obstruction in the way of the thing to be operated upon, and these facts are unknown
to the aggressor at the time, the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the
latter did not pass by the place where he was lying-in wait, the court held him liable for attempted murder. The court
explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became impossible by reason
of the extraneous circumstance that Lane did not go that way; and further, that he was arrested and
prevented from committing the murder. This rule of the law has application only where it is inherently
impossible to commit the crime. It has no application to a case where it becomes impossible for the
crime to be committed, either by outside interference or because of miscalculation as to a supposed
opportunity to commit the crime which fails to materialize; in short it has no application to the case
when the impossibility grows out of extraneous acts not within the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to
rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no
one can seriously doubt that the protection of the public requires the punishment to be administered,
equally whether in the unseen depths of the pocket, etc., what was supposed to exist was really

present or not. The community suffers from the mere alarm of crime. Again: Where the thing
intended (attempted) as a crime and what is done is a sort to create alarm, in other words, excite
apprehension that the evil; intention will be carried out, the incipient act which the law of attempt
takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter was
inside. However, at that moment, the victim was in another part of the house. The court convicted the accused of
attempted murder.
The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain
the judgment of attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve the
issue at hand. There is a difference between the Philippine and the American laws regarding the concept and
appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the
punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this
matter. What it provided for were attempts of the crimes enumerated in the said Code. Furthermore, in said
jurisdiction, the impossibility of committing the offense is merely a defense to an attempt charge. In this regard,
commentators and the cases generally divide the impossibility defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If the crime could have
been committed had the circumstances been as the defendant believed them to be, it is no defense
that in reality the crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt.
In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison. The law
governing the matter made the act criminal if done without knowledge and consent of the warden. In this case, the
offender intended to send a letter without the latter's knowledge and consent and the act was performed. However,
unknown to him, the transmittal was achieved with the warden's knowledge and consent. The lower court held the
accused liable for attempt but the appellate court reversed. It held unacceptable the contention of the state that
"elimination of impossibility as a defense to a charge of criminal attempt, as suggested by the Model Penal Code
and the proposed federal legislation, is consistent with the overwhelming modern view". In disposing of this
contention, the Court held that the federal statutes did not contain such provision, and thus, following the principle of
legality, no person could be criminally liable for an act which was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the
offense of attempt irrespective of legal impossibility until such time as such legislative changes in the
law take place, this court will not fashion a new non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is factually impossible or
accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to commit the
substantive crime where the elements of attempt are satisfied. It appears, therefore, that the act is penalized, not as
an impossible crime, but as an attempt to commit a crime. On the other hand, where the offense is legally
impossible of accomplishment, the actor cannot be held liable for any crime neither for an attempt not for an
impossible crime. The only reason for this is that in American law, there is no such thing as an impossible crime.
Instead, it only recognizes impossibility as a defense to a crime charge that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of
accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase
"inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction between factual
or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos.
The factual situation in the case at bar present a physical impossibility which rendered the intended crime
impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to
make the act an impossible crime.
To uphold the contention of respondent that the offense was Attempted Murder because the absence of
Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in Article 4,
which makes a person criminally liable for an act "which would be an offense against persons or property, were it not
for the inherent impossibility of its accomplishment . . ." In that case all circumstances which prevented the
consummation of the offense will be treated as an accident independent of the actor's will which is an element of
attempted and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of
Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an
impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court sentences
him to suffer the penalty of six (6) months ofarresto mayor, together with the accessory penalties provided by the
law, and to pay the costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. 108172-73 January 9, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CONRADO LUCAS Y BRIONES, accused-appellant.
RESOLUTION
DAVIDE, JR., J.:
In the decision in this case, promulgated on 25 May 1994, the First Division touched on the nature of the penalty
of reclusion perpetua in the light of Section 21 of R.A. No. 7659 1 which amended Article 27 of the Revised Penal
Code by specifically fixing the duration of reclusion perpetua at twenty (20) years and one (1) day to forty (40) years.
It opined that since no corresponding amendment to Article 76 of the Revised Penal Code was made, the said laws
has not made explicit an intention to convert reclusion perpetua into a divisible penalty. Nevertheless, it applied
Article 65 of the Revised Penal Code 2 and stated:
Accordingly, the time included in the penalty of reclusion perpetua (twenty [20] years and one [1] day
to forty [40] years) can be divided into three equal portions with each composing a period. The
periods of reclusion perpetua would then be as follows:

minimum

20 years and 1 day to 26 years and 8 months

medium

26 years, 8 months and 1 day to 33 years and 4 months

maximum

34 years, 4 months and 1 day to 40 years

Taking into account the presence of the aggravating circumstance of relationship in Criminal Case No. Q-9118465, the accused may finally be sentenced to thirty-four (34) years, four (4) months and one (1) day of reclusion
perpetua.
It then modified the challenged decision of the trial court by changing the penalty in Criminal Case No. Q-91-18465
from reclusion perpetua, as imposed by the trial court, to "imprisonment of 34 years, 4 months and 1 day
of reclusion perpetua."
In a motion for clarification seasonably filed by the appellee on 28 June 1994 which was not opposed by the
accused-appellant in his comment, the appellee asks the Court to correct the duration of the maximum period
ofreclusion perpetua from thirty-four (34) years, four (4) months and one (1) day to forty (40) years, as stated in the
decision, to thirty-three (33) years, four (4) months and one (1) day to forty (40) years.
Since the issue of whether the amendment of Article 27 of the Revised Penal Code by Section 21 of R.A. No. 7659
has made reclusion perpetua a divisible penalty is one of first impression and of sufficient importance, the First
Division referred the motion for clarification to the Court en banc. The latter accepted the referral.

After deliberating on the motion and re-examining the legislative history of R.A. No. 7659, the Court concludes that
although Section 17 of R.A. No. 7659 has fixed the duration of reclusion perpetua from twenty (20) years and one
(1) day to forty (40) years, there was no clear legislative intent to alter its original classification as an indivisible
penalty. It shall then remain as an indivisible penalty.
R.A. No. 7659 is a consolidation of Senate Bill (SB) No. 891 3 and House Bill (HB) No. 62. 4 SB No. 891 seeks to
amend Article 27 of the Revised Penal Code by inserting therein what are to be considered heinous crimes and to
penalize these not with the death penalty, but which reclusion perpetua only, with the qualification that "any person
sentenced toreclusion perpetua for . . . [such heinous] crimes under this Code shall be required to serve thirty (30)
years, without entitlement to good conduct time allowance and shall be considered for executive clemency only after
service of said thirty (30) years." HB No. 62 defines and enumerates the heinous crimes and seeks to penalize them
with the death penalty.
An amendment by substitution to SB No. 891 was introduced by the Senate Special Committee on Death Penalty.
The amendment was entitled "An Act to Impose the Death Penalty on Certain Heinous Crime, Amending for that
Purpose some Articles of Act No. 3815, as Amended, and for other Purposes." The substitute amendment sought to
amend (a) Article 25 of the Revised Penal Code by providing in the scale of penalties the following:
CAPITAL PUNISHMENT: DEATH
Afflictive Penalties: LIFE IMPRISONMENT
Reclusion Perpetua
Reclusion Temporal
and (b) Article 27 of the same Code by inserting therein the penalty of life imprisonment and providing a specific
duration therefor as well as for reclusion perpetua. The proposed amended Article 27 pertinently reads as follows:
Art. 27. LIFE IMPRISONMENT. THE PENALTY OF LIFE IMPRISONMENT SHALL BE FROM
THIRTY YEARS AND ONE DAY TO FORTY YEARS.
RECLUSION PERPETUA THE PENALTY OF RECLUSION PERPETUA SHALL BE FROM
TWENTY YEARS AND ONE DAY TO THIRTY YEARS.
Thus, life imprisonment, therefore a penalty imposed by special penal statutes, was sought to be incorporated as
penalty in the revised Penal Code with a specific duration.
In his sponsorship of this substitute bill, Senator Arturo M. Tolentino explained the incorporation of life imprisonment
as follows:
But a very basic amendment was made, and that is, an amendment that will create a new penalty,
known in this bill as life imprisonment. The new penalty was created in order to enable the
committee to provide, in some crimes, a three-grade penalty that would be composed of reclusion
perpetua, as now provided by the Revised Penal Code, as the lowest grade; on top of that, would be
life imprisonment; and the third highest grade would be death penalty. With this new grade of
penalty, it became possible for this bill now under consideration to impose a penalty ranging
from reclusion perpetua to death, composed of actually three periods or grades.
However the Bicameral Conference Committee eliminated from the proposed amendment of Article 27 the penalty
of life imprisonment but extended the duration of reclusion perpetua from twenty (2) years and one (1) day to forty
(40) years. Thus, in his sponsorship of the Conference Committee report on both the substitute SB No. 891 and HB
No. 62, Senator Tolentino stated:
By this, Mr. President, we have this new consolidated session that is before the Members of this
Chamber. There is one part or one portion of the Senate version that we have agreed to be
eliminated and that is the creation of the new penalty known as "life imprisonment." Even in this
Chamber, there were some doubts as to the creation of this new penalty of life imprisonment
because reclusion perpetua, which is in the Revised Penal Code and retained in this bill, also means
the same thing. It is a perpetual imprisonment.
So in order to still accommodate the increase of imprisonment by means of life imprisonment
while we eliminated the new penalty of life imprisonment which would last from 30 years and one
day to forty years what we did was simply to extend the period of reclusion perpetua by adding 30
to 40 years imprisonment to the original 20 to 30 years, making the reclusion perpetua in this new
bill range from 20 years to one day to 40 years. This would be what we had called one day before a
"flexible or divisible penalty." 6
Although Senator Tolentino described reclusion perpetua as a "flexible or divisible" penalty, yet in the portion of his
sponsorship speech immediately succeeding the foregoing description, he explicitly stated that the said penalty
is one of the two indivisible penalties in the Revised Penal Code. Thus:

Instead of having three penalties in the divisible [sic] penalty, we would have only two indivisible
penalties reclusion perpetua to death; and the principles on aggravating and mitigating
circumstances in the Revised Penal Code will be applicable to this penalty of reclusion perpetua to
death. 7
At first glance, by stating that reclusion perpetua was "flexible and divisible" and then later referring to it as one of
two indivisible penalties, Senator Tolentino might have fallen into an inconsistency. If we recall, however, what he
stated in his sponsorship speech to substitute bill where, as above adverted to, he mentioned the proposed threegrade penalty ranging from reclusion perpetua to death, then indeed he could also be correct in the sense that such
three-grade concept would in fact be a complex penalty which would be divisible, with each grade composing a
period and which could then be governed by Article 77 8 of the Revised Penal Code. That Senator Tolentino had this
three-grade penalty in mind when he spoke of flexibility and divisibility and that he stood by his subsequent
statement that reclusion perpetua is one of two indivisible penalties is further borne out by his explanations in
relation to the rule in Article 63 of the Revised Penal Code on the application of mitigating circumstance. Thus:
Senator Tolentino.
In general, Mr. President, in all of these heinous crimes, the penalty reclusion perpetua to death.
Unless otherwise provided in the bill itself, this means that the provisions on aggravating and
mitigating circumstances will apply to them. Therefore that means, if there is no mitigating and no
aggravating circumstances, the penalty of death will not be applied because under the provisions of
the revised Penal Code, when there are two indivisible penalt[ies] such as reclusion perpetua to
death, if there is no aggravating circumstance, then the penalty will be of lesser degree, which
means: life imprisonment. But even if there is an aggravating circumstance, still death penalty will
not be applied because it will still be the lesser penalty. This is how it is going to operate.
But if there is an aggravating circumstance, without any mitigating circumstance, the Revised Penal
Code provisions for the application of the higher penalty or the death penalty. That is how it is going
to operate. . . .
Senator Taada.
Mr. President, permit me to clarify the matter further. The Gentleman is saying that the principle of
mitigating and aggravating circumstances is applicable in general to all these crimes listed in this
consolidated version. That means that, first, if there is no aggravating circumstance and there is no
there is no mitigating circumstance, then the crime, although listed here in the measure, will not be
punished by death but by the lesser penalty of reclusion perpetua.
Senator Tolentino.
Yes, Mr. President.
Senator Taada.
Second, if there is an aggravating circumstance, but there is also a mitigating circumstance, then
generally speaking, that aggravating circumstance is offset by the mitigating circumstance in which
case the lesser penalty which is reclusion perpetua will be the one imposed.
Senator Tolentino.
That is right, Mr. President. 9
Article 63 of the Revised Penal Code provides that in all cases in which the law prescribes a single indivisible
penalty, it shall be applied regardless of any mitigating or aggravating circumstance that may have attended the
commission of the deed, and if the law prescribes a penalty composed of two indivisible penalties, then the greater
penalty shall be applied if there is present only one aggravating circumstance, and the lesser penalty shall be
applied when the commission of the act was attended by some mitigating circumstance but without an aggravating
circumstance or when there was neither mitigating nor aggravating circumstance, and if both mitigating and
aggravating circumstances were present, the court shall reasonably allow them to offset one another taking into
account their number and importance and then to apply preceding rules according to the result of such
compensation.
Verily, if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal Code would
lose its reason and basis for existence. To illustrate, the first paragraph of Section 20 of the amended R.A. No. 6425
provides for the penalty of reclusion perpetua to death whenever the dangerous drugs involved are of any of the
quantities stated therein. If Article 63 of the Code were no longer applicable because reclusion perpetua is supposed
to be a divisible penalty, then there would be no statutory rules for determining when either reclusion perpetua or
death should be the imposable penalty. In fine, there would be no occasion for imposingreclusion perpetua as the
penalty in drug cases, regardless of the attendant modifying circumstances.

This problem revolving around the non-applicability of the rules in Article 63 assumes serious proportions since it
does not involve only drug cases, as aforesaid. Under the amendatory sections of R.A. No. 7659, the penalty
ofreclusion perpetua to death is also imposed on treason by a Filipino (section 2), qualified piracy (Section 3),
parricide (Section 5), murder (Section 6), kidnapping and serious illegal detention (Section 8), robbery with homicide
(Section 9), destructive arson (Section 10), rape committed under certain circumstances (Section 11), and plunder
(Section 12).
Now then, if Congress had intended to reclassify reclusion perpetua as a divisible penalty, then it should have
amended Article 63 and Article 76 of the Revised Penal Code. The latter if the law on what are considered divisible
penalties under the Code and what should be the duration of the period thereof. There are, as well, other provisions
of the Revised Penal Code involving reclusion perpetua , such as Article 41 on the accessory penalties thereof and
paragraphs 2 and 3 of Article 61, which have not been touched by a corresponding amendment.
What then may be the reason for the amendment fixing the duration of reclusion perpetua? The deliberations in the
Bicameral Conference Committee and in both Chambers of Congress do not enlighten us on this, except the cryptic
statement of Senior Tolentino adverted to above on the elimination of the "new penalty" of life imprisonment by the
Bicameral Conference Committee. It may, however, be pointed out that although the Revised Penal Code did not
specify the maximum of reclusion perpetua , it is apparent that the maximum period for the service of this penalty
shall not exceed forty (40) years. In People vs. Reyes, 10 this Court, speaking through Mr. Justice Florenz D.
Regalado, stated:
We hold that there is legal basis, both in law and logic, for Presidential Decree No. 818 to declare
that any penalty exceeding twenty (20) years, or the maximum duration of reclusion temporal, is
within the range of reclusion perpetua.
It will be observed that Article 27 of the Code provides for the minimum and maximum ranges of all
the penalties in the Code (except bond to keep the peace which shall be for such period of time as
the court may determine) from arresto menor to reclusion temporal, the latter being specifically from
twelve years and one day to twenty years. For reclusion perpetua, however, there is no specification
as to its minimum and maximum range, as the aforesaid article merely provides that "(a)ny person
sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty
years, unless such person by reason of his conduct or some other serious cause shall be considered
by the Chief Executive as unworthy of pardon."
The other applicable reference to reclusion perpetua is found in Article 70 of the Code which, in
laying down the rule on successive service of sentences where the culprit has to serve more than
three penalties, provides that "the maximum duration of the convict's sentence shall not be more
than three-fold the length of time corresponding to the most severe of the penalties imposed upon
him," and "(i)n applying the provisions of this rule the duration of perpetual penalties ( pena
perpetua) shall be computed at thirty years."
The imputed duration of thirty (30) years for reclusion perpetua, therefore, is only to serve as the
basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in
the service of multiple penalties. Since, however, in all the graduated scales of penalties in the Code,
as set out in Article 25, 70 and 71, reclusion perpetua is the penalty immediately next higher
toreclusion temporal, it follows by necessary implication that the minimum of reclusion perpetua is
twenty (20) years and one (1) day with duration thereafter to last for the rest of the convict's natural
life although, pursuant to Article 70, it appears that the maximum period for the service of penalties
shall not exceed forty (40) years. It would be legally absurd and violative of the scales of penalties in
the Code to reckon the minimum of reclusion perpetua at thirty (30) years since there would thereby
be a resultant lacuna whenever the penalty exceeds the maximum twenty (20) years of reclusion
temporal but is less than thirty (30) years. 11
At most then in fixing a specific duration for reclusion perpetua , Section 21 of R.A. No. 7659 merely restated the
existing jurisprudence.
WHEREFORE, the Court resolved to MODIFY the decision of 25 May 1994 in this case by DELETING therefrom the
disquisitions on whether reclusion perpetua is a divisible penalty and SETTING ASIDE its division into three periods
and, finally, AMENDING the dispositive portion thereof to read as follows:
WHEREFORE, the challenged decision of 28 October 1992 of Branch 104 of the Regional Trial
Court of Quezon City in Criminal Case No. Q-91-18465 and Criminal Case No. Q-91-18466 is
hereby AFFIRMED, subject ot the modifications above indicated. As modified:
(1) In Criminal Case No. Q-91-18465, in addition to the penalty of reclusion
perpetuaimposed by the trial court, accused JOSE CONRADO LUCAS Y BRIONES
is further ordered to indemnify the offended party, Chanda Lucas y Austria, in the
sum of Fifty Thousand Pesos (P5,000.00); and

(2) In Criminal Case No. Q-91-18466, accused JOSE CONRADO LUCAS Y

BRIONES is hereby found GUILTY beyond reasonable doubt of the lesser offense of
attempted rape and is hereby sentenced to suffer an indeterminate penalty ranging
from Four (4) Years, Two (2) Months and One (1) Day of prision correccional as
minimum to Ten (10) Years and One (1) Day of prision mayor maximum, and to
indemnify the offended party, Chanda Lucas y Austria, in the sum of Thirty Thousand
Pesos (P30,000.00).
Costs against the accused-appellant.
SO ORDERED.

Republic of the Philippines

Supreme Court
Manila
THIRD DIVISION
GEMMA T. JACINTO,
Petitioner,

G.R. No. 162540

- versus PEOPLE OF THE PHILIPPINES,

Respondent.

Promulgated:

July 13, 2009

x-----------------------------------------------------------------------------------------x
DECISION

PERALTA, J.:
Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking
the reversal of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 23761
dated December 16, 2003, affirming petitioner's conviction of the crime of Qualified Theft, and
its Resolution[2] dated March 5, 2004 denying petitioner's motion for reconsideration.
Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and
Jacqueline Capitle, was charged before the Regional Trial Court (RTC) of CaloocanCity, Branch
131, with the crime of Qualified Theft, allegedly committed as follows:
That on or about and sometime in the month of July 1997, in Kalookan City,
Metro Manila, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring together and mutually helping one another, being then all
employees of MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH
DYHENGCO Y CO, and as such had free access inside the aforesaid establishment,
with grave abuse of trust and confidence reposed upon them with intent to gain and
without the knowledge and consent of the owner thereof, did then and there
willfully, unlawfully and feloniously take, steal and deposited in their own account,
Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00,
representing payment made by customer Baby Aquino to the Mega Foam Int'l. Inc.
to the damage and prejudice of the latter in the aforesaid stated amount
of P10,000.00.

CONTRARY TO LAW.[3]
The prosecution's evidence, which both the RTC and the CA found to be more credible,
reveals the events that transpired to be as follows.
In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed
petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the amount
of P10,000.00. The check was payment for Baby Aquino's purchases from Mega Foam Int'l., Inc.,
and petitioner was then the collector of Mega Foam. Somehow, the check was deposited in the
Land Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister
of petitioner and the former pricing, merchandising and inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call
sometime in the middle of July from one of their customers, Jennifer Sanalila. The customer
wanted to know if she could issue checks payable to the account of Mega Foam, instead of
issuing the checks payable to CASH. Said customer had apparently been instructed by Jacqueline
Capitle to make check payments to Mega Foam payable to CASH. Around that time, Ricablanca
also received a phone call from an employee of Land Bank, Valenzuela Branch, who was looking
for Generoso Capitle. The reason for the call was to inform Capitle that the subject BDO check
deposited in his account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega
Foam, asking the latter to inform Jacqueline Capitle about the phone call from Land Bank
regarding the bounced check. Ricablanca explained that she had to call and relay the message
through Valencia, because the Capitles did not have a phone; but they could be reached
through Valencia, a neighbor and former co-employee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca
to ask Baby Aquino to replace the check with cash. Valencia also told Ricablanca of a plan to take
the cash and divide it equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline
Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported the matter to the
owner of Mega Foam, Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter
indeed handed petitioner a BDO check for P10,000.00 sometime in June 1997 as payment for her
purchases from Mega Foam.[4] Baby Aquino further testified that, sometime in July 1997,
petitioner also called her on the phone to tell her that the BDO check bounced. [5] Verification
from company records showed that petitioner never remitted the subject check to Mega
Foam. However, Baby Aquino said that she had already paid Mega Foam P10,000.00 cash in
August 1997 as replacement for the dishonored check. [6]
Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO
check in his bank account, but explained that the check came into his possession when some
unknown woman arrived at his house around the first week of July 1997 to have the check
rediscounted. He parted with his cash in exchange for the check without even bothering to
inquire into the identity of the woman or her address. When he was informed by the bank that
the check bounced, he merely disregarded it as he didnt know where to find the woman who
rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and
worked out an entrapment operation with its agents. Ten pieces of P1,000.00 bills provided by
Dyhengco were marked and dusted with fluorescent powder by the NBI. Thereafter, the bills were
given to Ricablanca, who was tasked to pretend that she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who
was then holding the bounced BDO check, handed over said check to Ricablanca. They originally

intended to proceed to Baby Aquino's place to have the check replaced with cash, but the plan
did not push through. However, they agreed to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioners house, where she met petitioner
and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita
Valencia; Jacqueline Capitle decided not to go with the group because she decided to go
shopping. It was only petitioner, her husband, Ricablanca and Valencia who then boarded
petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca alighted from the jeep
and entered the premises of Baby Aquino, pretending that she was getting cash from Baby
Aquino. However, the cash she actually brought out from the premises was the P10,000.00
marked money previously given to her by Dyhengco. Ricablanca divided the money and upon
returning to the jeep, gave P5,000.00 each to Valencia and petitioner. Thereafter, petitioner
and Valencia were arrested by NBI agents, who had been watching the whole time.
Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found
fluorescent powder on the palmar and dorsal aspects of both of their hands. This showed that
petitioner and Valencia handled the marked money. The NBI filed a criminal case for qualified
theft against the two and one Jane Doe who was later identified as Jacqueline Capitle, the wife of
Generoso Capitle.
The defense, on the other hand, denied having taken the subject check and presented the
following scenario.
Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30,
1997, but claimed that she had stopped collecting payments from Baby Aquino for quite some
time before her resignation from the company. She further testified that, on the day of the arrest,
Ricablanca came to her mothers house, where she was staying at that time, and asked that she
accompany her (Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal
check-up at the Chinese General Hospital, Ricablanca decided to hitch a ride with the former and
her husband in their jeep going to Baby Aquino's place in Caloocan City. She allegedly had no
idea why Ricablanca asked them to wait in their jeep, which they parked outside the house of
Baby Aquino, and was very surprised when Ricablanca placed the money on her lap and the NBI
agents arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned
on June 30, 1997. It was never part of her job to collect payments from customers.According to
her, on the morning of August 21, 1997, Ricablanca called her up on the phone, asking if she
(Valencia) could accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims that
she agreed to do so, despite her admission during cross-examination that she did not know
where Baby Aquino resided, as she had never been to said house. They then met at the house of
petitioner's mother, rode the jeep of petitioner and her husband, and proceeded to Baby Aquino's
place. When they arrived at said place, Ricablanca alighted, but requested them to wait for her in
the jeep. After ten minutes, Ricablanca came out and, to her surprise, Ricablanca gave her
money and so she even asked, What is this? Then, the NBI agents arrested them.
The trial of the three accused went its usual course and, on October 4, 1999, the RTC
rendered its Decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale
De Jacinto y Latosa, Anita Busog De Valencia y Rivera and Jacqueline
Capitle GUILTY beyond reasonable doubt of the crime of QUALIFIED THEFT and
each of them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE
(5) MONTHS AND ELEVEN (11) DAYS,as minimum, to SIX (6) YEARS, EIGHT
(8) MONTHS AND TWENTY (20) DAYS, as maximum. SO ORDERED.[7]

The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the
dispositive portion of which reads, thus:
IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;
(b) the sentence against accused Anita Valencia is reduced to 4
months arresto mayor medium.
(c) The accused Jacqueline Capitle is acquitted. SO ORDERED.
A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for
petitioner Gemma Tubale Jacinto, but the same was denied per Resolution datedMarch 5, 2004.
Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the
Decision and Resolution of the CA. The issues raised in the petition are as follows:
1.
2.

Whether or not petitioner can be convicted of a crime not charged in the

information;
Whether or not a worthless check can be the object of theft; and

3. Whether or not the prosecution has proved petitioner's guilt beyond

reasonable doubt.[8]
The petition deserves considerable thought.
The prosecution tried to establish the following pieces of evidence to constitute the
elements of the crime of qualified theft defined under Article 308, in relation to Article 310, both
of the Revised Penal Code: (1) the taking of personal property - as shown by the fact that
petitioner, as collector for Mega Foam, did not remit the customer's check payment to her
employer and, instead, appropriated it for herself; (2) said property belonged to another the
check belonged to Baby Aquino, as it was her payment for purchases she made; (3) the taking
was done with intent to gain this is presumed from the act of unlawful taking and further shown
by the fact that the check was deposited to the bank account of petitioner's brother-in-law; (4) it
was done without the owners consent petitioner hid the fact that she had received the check
payment from her employer's customer by not remitting the check to the company; (5) it was
accomplished without the use of violence or intimidation against persons, nor of force upon
things the check was voluntarily handed to petitioner by the customer, as she was known to be a
collector for the company; and (6) it was done with grave abuse of confidence petitioner is
admittedly entrusted with the collection of payments from customers.
However, as may be gleaned from the aforementioned Articles of the Revised Penal
Code, the personal property subject of the theft must have some value, as the
intention of the accused is to gain from the thing stolen. This is further bolstered by
Article 309, where the law provides that the penalty to be imposed on the accused is dependent
on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but
the same was apparently without value, as it was subsequently dishonored. Thus, the question
arises on whether the crime of qualified theft was actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals [9] is highly instructive and applicable to the present case. In Intod,
the accused, intending to kill a person, peppered the latters bedroom with bullets, but since the
intended victim was not home at the time, no harm came to him. The trial court and the CA held
Intod guilty of attempted murder. But upon review by this Court, he was adjudged guilty only of

an impossible crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59,
both of the Revised Penal Code, because of the factual impossibility of producing the
crime. Pertinent portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:
xxxx
2.

By any person performing an act which would be an

offense against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the
employment of inadequate to ineffectual means. (emphasis
supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime because the
means employed or the aims sought are impossible. - When the person intending to
commit an offense has already performed the acts for the execution of the same but
nevertheless the crime was not produced by reason of the fact that the act intended
was by its nature one of impossible accomplishment or because the means
employed by such person are essentially inadequate to produce the result desired
by him, the court, having in mind the social danger and the degree of criminality
shown by the offender, shall impose upon him the penalty of arresto mayor or a fine
ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be an
offense against persons or property; (2) that the act was done with evil intent; and (3) that its
accomplishment was inherently impossible, or the means employed was either inadequate or
ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime under
Article 4(2) of the Revised Penal Code was further explained by the Court in Intod[10] in this wise:
Under this article, the act performed by the offender cannot produce an offense
against persons or property because: (1) the commission of the offense is inherently
impossible of accomplishment; or (2) the means employed is either (a) inadequate
or (b) ineffectual.
That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its nature
one impossible of accomplishment. There must be either (1) legal impossibility, or
(2) physical impossibility of accomplishing the intended act in order to qualify the
act as an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime.
xxxx
The impossibility of killing a person already dead falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the consummation of the
intended crime. x x x [11]
In Intod, the Court went on to give an example of an offense that involved factual
impossibility, i.e., a man puts his hand in the coat pocket of another with the intention to steal
the latter's wallet, but gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual impossibility given
in Intod. In this case, petitioner performed all the acts to consummate the crime ofqualified theft,
which is a crime against property. Petitioner's evil intent cannot be denied, as the mere act of
unlawfully taking the check meant for Mega Foam showed her intent to gain or be unjustly
enriched. Were it not for the fact that the check bounced, she would have received the face value
thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circumstance
of the check being unfunded, a fact unknown to petitioner at the time, that prevented the crime
from being produced. The thing unlawfully taken by petitioner turned out to be absolutely

worthless, because the check was eventually dishonored, and Mega Foam had received the cash
to replace the value of said dishonored check.
The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which
she thought was the cash replacement for the dishonored check, is of no moment. The Court held
in Valenzuela v. People[12] that under the definition of theft in Article 308 of the Revised Penal
Code, there is only one operative act of execution by the actor involved in theft the taking of
personal property of another. Elucidating further, the Court held, thus:
x x x Parsing through the statutory definition of theft under Article 308, there is one
apparent answer provided in the language of the law that theft is already produced
upon the tak[ing of] personal property of another without the latters consent.
xxxx
x x x when is the crime of theft produced? There would be all but certain unanimity
in the position that theft is produced when there is deprivation of personal property
due to its taking by one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender, once having committed all
the acts of execution for theft, is able or unable to freely dispose of the property
stolen since the deprivation from the owner alone has already ensued from such
acts of execution. x x x
xxxx
x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed
complete from the moment the offender gains possession of the thing, even if he
has no opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of ones personal property, is the
element which produces the felony in its consummated stage. x x x [13]
From the above discussion, there can be no question that as of the time that petitioner
took possession of the check meant for Mega Foam, she had performed all the acts to
consummate the crime of theft, had it not been impossible of accomplishment in this
case. The circumstance of petitioner receiving the P5,000.00 cash as supposed replacement for
the dishonored check was no longer necessary for the consummation of the crime of qualified
theft. Obviously, the plan to convince Baby Aquino to give cash as replacement for the check was
hatched only after the check had been dishonored by the drawee bank. Since the crime of theft is
not a continuing offense, petitioner's act of receiving the cash replacement should not be
considered as a continuation of the theft. At most, the fact that petitioner was caught receiving
the marked money was merely corroborating evidence to strengthen proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the dishonored check replaced
with cash by its issuer is a different and separate fraudulent scheme. Unfortunately, since said
scheme was not included or covered by the allegations in the Information, the Court cannot
pronounce judgment on the accused; otherwise, it would violate the due process clause of the
Constitution. If at all, that fraudulent scheme could have been another possible source of criminal
liability.
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of
Appeals,

dated December

16,

2003,

and

its

Resolution

dated March

5,

2004,

areMODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE CRIME as

defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code,
respectively. Petitioner is sentenced to suffer the penalty of six (6) months of arrresto mayor, and
to pay the costs.
SO ORDERED.

EN BANC
PEOPLE OF THE PHILIPPINES G.R. No. 166401
Appellee, [Formerly G.R. Nos. 158660-67]
Present:
PANGANIBAN, C.J.,
PUNO,
- versus - QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
ALFREDO BON, CORONA,
Appellant. CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA, and
VELASCO, JR., JJ.
Promulgated:
October 30, 2006
x--------------------------------------------------------------------------- x
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 AAA [3] 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 clearing [9] 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 appellants 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 grandmothers
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 appellants 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 thelabia 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)
oclock andeight (8) oclock 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]
AAAs medical certificate stated that at the time of examination, there were no external physical injuries apparent
on her body. AAAs 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 sister-in-law and the
mother of his nieces, harbored ill-feelings towards his deceased father, who would call CCC lazy within earshot of other
family members.[25]
The RTC convicted appellant on all eight (8) counts of rape. [26] The RTC pronounced appellants 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 formers 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. Mateo[27] the
present case was transferred to the Court of Appeals for appropriate action and disposition.
On 29 December 2004, the Court of Appeals agreed with the rulings of the RTC in regard to six (6) of the eight (8)
death sentences imposed on appellant.[28] The appellate court ratiocinated, thus:
We have painstakingly gone over the record of these cases and find no cogent reason to deviate from the
findings of the trial court except in at least two (2) cases. The prosecutions 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 AAAs vagina to make him liable for consummated rape. It stressed that there
was not even moral certainty that appellants penis ever touched the labia of the pudendum, quoting portions of the
transcript of the stenographic notes where AAA was asked if appellant was then successful in inserting his penis into her
vagina and she answered in the negative. [30] Accordingly, the Court of Appeals reduced the penalties attached to the two
(2) counts of rape from death for consummated qualified rape to an indeterminate penalty of ten (10) years of prision
mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, for attempted rape.
Appellant, in his Supplemental Brief [31] before this Court, assails the findings of the Court of Appeals. He cites
inconsistencies in the testimony of BBB as to what really transpired on 15 January 2000. Particularly, appellant observes
that BBB testified on 6 June 2001 as to her rape on 15 January 2000. BBB, her sister and appellant had been sleeping
side by side. However, when BBB again testified on 3 July 2002, this time she stated that on that night, as she and her
sister AAA were sleeping in their room at their parents house (and not at her grandmothers), the accused passed through
a window, entered their room and raped her again. [32] Appellant also latches on the inconsistencies in BBBs testimony as
to the length of the duration of her rape on that day. In BBBs testimony on 6 June 2001, she said that appellant was atop
her for three (3) minutes while in the3 July 2002 hearing, BBB stated that the rape lasted for only half a minute.
It must be observed though that BBB was at a tender age when she was raped in 2001. Moreover, these
inconsistencies, which the RTC and the Court of Appeals did not consider material, were elicited while BBB was testifying
in open court. Our observations in People v. Perez[33] on the appreciation of alleged inconsistencies in the testimony of
rape victims who happen to be minors are instructive, thus:
We note that these alleged inconsistencies refer, at best, only to trivial, minor, and insignificant
details. They bear no materiality to the commission of the crime of rape of which accused-appellant
was convicted.[[34]] As pointed out by the Solicitor General in the Appellee's Brief, the seeming
inconsistencies were brought about by confusion and merely represent minor lapses during the rape
victim's direct examination and cannot possibly affect her credibility. Minor lapses are to be expected when
a person is recounting details of a traumatic experience too painful to recall. The rape victim was testifying
in open court, in the presence of strangers, on an 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 half-minute. But she
remained consistent in her declaration that on January 15, 2000, her uncle inserted his penis into her

vagina, and he was moving while on her top then she felt something came out from him. He was able to
rape her because he threatened her with a knife or bladed weapon. Further, the first she took the witness
stand on June 6, 2001, she was made to recall the last rape, the first rape and many acts of sexual
abuses [sic] against her. She was even confused about her age when she was first raped by her uncle.
After she testified on November 14, 2001, for the separate charges of rapes in 1997, 1998 and 1999, she
was able to recall more clearly the last rape on January 15, 2000, which happened in her own house.
These noted discrepancies as to the exact place of commission accuseds house or victims 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 courts disbelief of appellants 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, appellants alibi that he was at his sisters 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 sisters house in the middle of the night, raped BBB, and then returned to his sisters 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 illmotive on the part of the eyewitness testifying on the matter, prevails over alibi and denial. [41] The defenses of denial and
alibi deserve scant consideration when the prosecution has strong, clear and convincing evidence identifying appellant as
the perpetrator.[42] In this case, both BBB and AAA, minors and relatives of appellant, positively identified him as their
rapist in open court. The lower courts found no issue detracting from the credibility of such identification.
It is worthy to note that the alibi presented by appellant is limited to the 15 January 2000 rape of BBB. He offers
nothing to counteract the accusations against him involving the seven (7) other specific acts of rape other than the
averment that he did not know anything about the allegations propounded on him, an infinitesimal defense considering the
evidence against him.
Appellant does claim that the present case was merely instituted because of the grudge of CCC towards his
deceased father. It is outrageous to even suggest that a mother will subject her daughters to the humiliating experience of
coming before the court and narrating their harrowing experience just because she was tagged by her father-in-law as
lazy. In addition, CCCs 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 victims family would dare encourage the victim to publicly expose the
dishonor of the family, more specifically if such accusation is against a member of the family, unless the crime was in fact
committed.[43]
Besides, no sane woman, least of all a child, would concoct a story of defloration, allow an examination of her private
parts and subject herself to public trial or ridicule if she has not in truth, been a victim of rape and impelled to seek justice
for the wrong done to her. Testimonies of child-victims are normally given full weight and credit, since when a woman,
more so if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape has
been committed. Youth and immaturity are generally badges of truth and sincerity. [44] The weight of such testimonies may
be countered by physical evidence to the contrary, or indubitable proof that the accused could not have committed the
rape, but in the absence of such countervailing proof, these testimonies shall be accorded utmost value.
The twin aggravating circumstances of minority and relationship were properly appreciated in this case. The
minority of the victims and their relationship with appellant were aptly established in the lower court proceedings. Not only
did the prosecution allege in the Informations the ages of the victims when they were raped but the prosecution also
presented the birth certificates of BBB and AAA in court as documentary evidence to prove that they were both minors
when appellant raped them. Appellant, in open court, also admitted that that he was the uncle of both victims being the
brother of the victims father, and thus, a relative of the victims within the third degree of consanguinity.
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 victims perception and judgment at the time of the commission of the

crime and not by any hard and fast rule. It is enough that the intimidation produces a fear that if the victim does not yield
to the perverse impulses of the accused, something would happen to her at the moment, or even thereafter, as when she
is threatened with death if she would report the incident. [46]
At the same time, we agree with the Court of Appeals that the two counts of rape in Criminal Case Nos. 6906-G
and 6908-G were not proven beyond reasonable doubt, but only the two separate incidents of attempted rape.
It is to be noted that there is an attempt to commit rape when the offender commences its commission directly by
overt acts but does not perform all acts of execution which should produce the felony by reason of some cause or
accident other than his own spontaneous desistance. [47] In Criminal Case No. 6906-G, the records show that there was no
penetration or any indication that the penis of appellant touched the labia of the pudendum of AAA. This was evident in
AAAs testimony at the hearing on 17 October 2001, to wit:
Q Do you remember of any unusual incident that happened to you when you were eleven years old?
A Yes, Mam. [sic]
Q What was that?
A He also touched my vagina and my other private parts and he inserted also his penis (into) my vagina.
[sic]
Q Was he able to insert his penis into your vagina?
A No, Mam. [sic]
Q Why?
A It was painful, Mam. [sic]
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 and consequently decreasing the penalty, the CA declared:

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 victims 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 childs vagina, the act proved painful to [AAA,] which made the accused stop from further
executing the act. From the testimony of private complainant, [AAA] in the afore-numbered cases, the
prosecution failed to demonstrate beyond any shadow of doubt that accused-appellants penis reached the
labia of the pudendum of AAAs 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]
The Court thus affirms the conclusions of the Court of Appeals that it has been established beyond reasonable
doubt that appellant is guilty of six (6) counts of rape and two (2) counts of attempted rape. However, in light of Rep. Act
No. 9346, the appropriate penalties for both crimes should be amended.
II.
We shall not dwell at length on the proper penalty imposable on appellant for the six (6) counts of rape. The
sentence of death imposed by the RTC and affirmed by the Court of Appeals can no longer be affirmed in view of Rep. Act
No. 9346, titled An Act Prohibiting the Imposition of Death Penalty in the Philippines. Section 2 of the law mandates that in
lieu of the death penalty, the penalty of reclusion perpetua shall be imposed. Correspondingly, the Court can no longer
uphold the death sentences imposed by lower courts, but must, if the guilt of the accused is affirmed, impose instead the
penalty of reclusion perpetua, or life imprisonment when appropriate. Since the passage of Rep. Act No. 9346, the Court
has had occasion to effectuate such reduction in recent cases such as People v. Tubongbanua[52] and People v.
Cabalquinto.[53]
III.
The question of what should be the appropriate penalty for the two (2) counts of attempted rape proves to be the
more challenging but interesting question facing the Court.
The Court of Appeals had sentenced appellant, for the attempted rape of AAA, to an indeterminate penalty of ten
(10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal as maximum,
for each count of attempted rape. There is no doubt as to the validity of this sentence at the time it was meted prior to the
enactment of Rep. Act No. 9346. Article 51 of the Revised Penal Code establishes the penalty to be imposed upon the
principals of an attempted felony:
ART. 51. xxx A penalty lower by two degrees than that prescribed by law for the consummated felony
shall be imposed upon the principals in an attempt to commit a felony.[54]
What is the penalty lower by two degrees than that prescribed by law for attempted rape? Article 266-B of the Revised
Penal Code, which incorporates the amendments introduced by Rep. Act No. 8353, prescribes:
The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law
spouse of the parent of the victim. x x x[55]

The prescribed penalty for the consummated rape of a victim duly proven to have been under eighteen years of age and
to have been raped by her uncle, is death under Article 266-B of the Revised Penal Code. The determination of the
penalty two degrees lower than the death penalty entails the application of Articles 61 and 71 of the Revised Penal Code:
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 and indivisible, the penalty next lower in degree
shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in
Article 71 of this Code.[56]
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.
2.
3.
4.
5.
6.
7.
8.
9.
10.

Death
Reclusion perpetua
Reclusion temporal
Prision mayor
Prision correctional
Arresto mayor
Destierro
Arresto menor
Public censure
Fine[57]
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 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]
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 mayorin lieu of reclusion temporal.
IV.

Obviously, our ruling on the appropriate penalty on appellant for attempted rape will affect not only appellant, but
several classes of convicts as well. Before we proceed with the discussion, the Court finds it necessary to make the
following qualification.
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 thevictim or any other
person;[61] destructive arson wherein death results;[62] and rape qualified by any of the several circumstances enumerated
under the law.
On the other hand, the penalty of reclusion perpetua to death was imposable on several crimes, including murder,
[63]

qualified piracy,[64] and treason.[65] The imposition of the death penalty for crimes punishable by reclusion perpetua to

death depended on the appreciation of the aggravating and mitigating circumstances generally outlined in Articles 13 and
14 of the Revised Penal Code. Reference to those two provisions was unnecessary if the penalty imposed was death, as
opposed to reclusion perpetua to death.
There is no need for now to discuss the effects of Rep. Act No. 9346 on the penalties for frustrated and attempted
felonies which were punishable by reclusion perpetua to death if consummated, or on accomplices and accessories to
such felonies. Such situations do not relate to the case of appellant, who was convicted of two (2) counts of attempted
rape, which, if consummated, of course would have carried prior to the enactment of Rep. Act 9346 the penalty of death,
and not reclusion perpetua to death.
The Court also recognizes that the graduation of penalties reckoned from reclusion perpetua to death differs from
that based on the exclusive penalty of death. For example, it has been held that the penalty two degrees lower
than reclusion perpetua to death is prision mayor.[66] In contrast, the Court has likewise held that for qualified rape in the
attempted stage, the penalty 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 [RT [69]] was eight years old and TOLENTINO was the
common-law spouse of [RTs] mother. The last paragraph thereof provides:
The death penalty shall also be imposed if the crime of rape is committed with
any of the following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law spouse of the parent of the victim.
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 ofreclusion 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 ofreclusion 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 quasilegislative acts.[76] There can be no harmony between Rep. Act No. 9346 and the Revised Penal Code unless the later
statute is construed as having downgraded those penalties attached to death by reason of the graduated scale under
Article 71. Only in that manner will a clear and consistent rule emerge as to the application of penalties for frustrated and
attempted felonies, and for accessories and accomplices.
It is also a well-known rule of legal hermeneutics that penal or criminal laws are strictly construed against the state
and liberally in favor of the accused. [77] If the language of the law were ambiguous, the court will lean more strongly in
favor of the defendant than it would if the statute were remedial, as a means of effecting substantial justice. [78]The law is
tender in favor of the rights of an individual. [79] It is this philosophy of caution before the State may deprive a person of life
or liberty that animates one of the most fundamental principles in our Bill of Rights, that every person is presumed
innocent until proven guilty.
Resort to the aforementioned principles in statutory construction would not have been necessary had Rep. Act
No. 9346 ineluctably stated that the repeal of all laws imposing the death penalty did not engender the corresponding
modification of penalties other than death, dependent as these are on death as a measure under the graduated scale of
penalties under Article 71. Admittedly, if this were indeed the intent of Congress, and such intent were unequivocally
expressed in Rep. Act No. 9346, the resulting inequities and inconsistencies we had earlier pointed out would have
remained. If that were to be the case, we would have acknowledged, perhaps tacitly, that such inequities and
inconsistencies fell part of the legislative intent. It does not speak well of a Congress to be deliberately inconsistent with,
or ignorant of its own prior enactments. Yet ultimately, Section 1 of Rep. Act No. 9346 is not expressive of such rash or
injudicious notions, as it is susceptible to a reading that would harmonize its effects with the precepts and practices that
pervade our general penal laws, and in a manner that does not defy the clear will of Congress.
VIII.
One who would like to advocate that Rep. Act No. 9346 did not correspondingly amend any of the penalties other
than death in our penal laws would most certainly invoke our ruling in People v. Muoz,[80] decided in 1989. Therein, a
divided Court ruled in that the constitutional bar on the imposition of the death penalty did not enact a corresponding
modification in the other periods [in penalties], there being no expression of such a requirement in Article III, Section
19(1) of the Constitution or indicat[ion]therein by at least clear and unmistakable implication. [81] In so concluding, the Court
made the oft-cited pronouncement that there was nothing in the 1987 Constitution which expressly declares the abolition
of the death penalty.[82]
It is time to re-examine Muoz and its continued viability in light of Rep. Act No. 9346. More precisely,
would Muoz 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 penaltys medium term. Jurisprudence previous to Muozheld
that the proper penalty in such instances should be the higher half of reclusion temporal maximum, with reclusion
temporal maximum, divided into two halves for that purpose. Muoz rejected this formulation, holding instead that the
penalty should be reclusion perpetua. Towards this conclusion, the Court made the above-cited conclusions relating to the
constitutional abolition of the death penalty, and the charters 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 framers 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 persons 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.
Despite our present pronouncement on the ban against of the death penalty, we do not acknowledge
that Muoz lacked legal justification when it was decided; that its application as precedent prior to Rep. Act No. 9346 was
erroneous; or that previous sentences imposed on convicts on the basis of Muoz were wrong. Muoz properly stood as the
governing precedent in the matter of sentences that passed finality prior to Rep. Act No. 9346; and the consistent reliance
by the courts on its doctrines entrenched its footing in criminal law jurisprudence.
IX.
Rep. Act No. 7659, in the course of reintroducing the death penalty in the Philippines, also effectively classified
the crimes listed therein as heinous, within constitutional contemplation. Such reclassification under Rep. Act No. 7659
was accompanied by certain legal effects other than the imposition of the death penalty, such as the increase in
imposable fines attached to certain heinous crimes.[86] The categorization of certain crimes as heinous, constituting as it
does official recognition that some crimes are more odious than others, has also influenced this Court in adjudging the
proper pecuniary indemnities awarded to the victims of these crimes. Hence, a general inclination persists in levying a
greater amount of damages on accused found guilty of heinous crimes.
It should be understood that the debarring of the death penalty through Rep. Act No. 9346 did not correspondingly
declassify those crimes previously catalogued as heinous. The amendatory effects of Rep. Act No. 9346 extend only to
the application of the death penalty but not to the definition or classification of crimes. True, the penalties for heinous
crimes have been downgraded under the aegis of the new law. Still, what remains extant is the recognition by law that
such crimes, by their abhorrent nature, constitute a special category by themselves. Accordingly, Rep. Act No. 9346 does
not serve as basis for the reduction of civil indemnity and other damages that adhere to heinous crimes.
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.
As to sentences not yet handed down, or affirmed with finality, the application is immediate. Henceforth, death, as
utilized in Article 71 of the Revised Penal Code, shall no longer form part of the equation in the graduation of penalties.
For example, in the case of appellant, the determination of his penalty for attempted rape shall be reckoned not from two
degrees lower than death, but two degrees lower than reclusion perpetua. Hence, the maximum term of his penalty shall
no longer be reclusion temporal, as ruled by the Court of Appeals, but instead, prision mayor.
There should be little complication if the crime committed was punishable by the free-standing penalty of death,
as utilized in Rep. Act No. 7659, as opposed to the ranged penalty of reclusion perpetua to death, as often used in the
Revised Penal Code and other penal laws. The facts of the present case do not concern the latter penalty, hence our
reluctance to avail of an extended discussion thereof. However, we did earlier observe that both reclusion perpetua and
death are indivisible penalties. Under Article 61 (2) of the Revised Penal Code, [w]hen the penalty prescribed for the crime
is composed of two indivisible penalties 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 thanreclusion perpetua to death is prision mayor.
Then there is the matter of whether retroactive effect should be extended to this new ruling, favorable as it is to
persons previously convicted of crimes which, if consummated or participated in as a principal, would have warranted the
solitary penalty of death. We see no choice but to extend the retroactive benefit. Article 22 of the Revised Penal Code
states that [p]enal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a
habitual criminal[[87]] x x x x although at the time of the publication of such laws a final sentence has been pronounced and
the convict is serving the same. Given that we have ruled that Rep. Act No. 9346 downgraded the penalties for such

crimes, the benefit of Article 22 has to apply, except as to those persons defined as habitual criminal[s]. Indeed, Rep. Act
No. 9346 expressly recognized that its enactment would have retroactive beneficial effects, referring as it did to
persons 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 Attorneys Office and nongovernmental 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 mayorshould 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
and P10,000.00 as exemplary damages for each count of attempted rape, it being the prevailing rate of indemnity as
pronounced in the recent case of People v. Miranda.[89]
Separately, the Court applies prevailing jurisprudence [90] in awarding to BBB and AAA P75,000.00 as civil
indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages, for each count of consummated rape.
WHEREFORE, in light of the foregoing, the Decision of the Court of Appeals is hereby AFFIRMED WITH
MODIFICATION. The Court sentences appellant Alfredo J. Bon to the penalty of reclusion perpetua with no possibility of
parole for each of the six (6) counts of consummated rape committed against AAA in Criminal Case Nos. 6699, 6902, and
against BBB in Criminal Case Nos. 6689, 6903, 6905, and 6907. Appellant is further ORDERED to indemnify AAA and
BBB for the crime of consummated rape, in the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages
and P25,000.00 as exemplary damages for each of them.
For the two (2) counts of attempted rape of AAA in Criminal Cases No. 6906 and 6908, appellant is hereby
SENTENCED to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional as
minimum, to eight (8) years and one (1) of prision mayor as maximum for each count of attempted rape. In addition,
appellant is ORDERED to indemnify AAA for each of the two (2) counts of attempted rape in the amounts of P30,000.00
as civil indemnity, P25,000.00 as moral damages andP10,000.00 as exemplary damages.
SO ORDERED.

SECOND DIVISION
[G.R. No. 123186. July 9, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERIC MENDOZA and ANGELITO
BALAGTAS, accused, ERIC MENDOZA, accused-appellant.
DECISION
PUNO, J.:

On May 18, 1995, the Regional Trial Court of Bulacan, 3rd Judicial Region, Branch 14, Malolos, found [1] the two
accused Eric Mendoza and Angelito Balagtas guilty beyond reasonable doubt of the special complex crime of
robbery with rape in Criminal Case No. 1941-M-91. They were meted out a prison term of Reclusion Perpetua and
ordered to indemnify the victim, Andrelita Sto. Domingo, the amount of P12,000 as actual damages
and P100,000.00 as moral damages, plus costs. From this decision,[2] only Eric Mendoza appealed.[3] Mendoza was
indicted under the following Information:[4]
"The undersigned Assistant Provincial Prosecutor accuses Eric Mendoza and Angelito Balagtas of the
crime of robbery with rape, penalized under the provisions of Art. 294, paragraph 2 of the Revised Penal
Code, committed as follows:
"That on or about the 23rd day of August, 1991, in the municipality of Sta. Maria, province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with a knife,
conspiring, confederating together and mutually helping each other, did then and there wilfully, unlawfully
and feloniously, with intent of [sic] gain and by means of violence, threats and intimidation enter the house
of one Andrelita Sto. Domingo and once inside, take, rob and carry away with them the following, to wit:
"1. cash amounting to - - - - - - P 2,000.00
2. one (1) necklace - - - - - - 2,000.00
3. one (1) set of earring - - - 2,000.00
4. one (1) ring - - - - - - - - - 1,500.00
5. one (1) wrist watch - - - - - 5,000.00
with the total value of P12,500.00, belonging to the said Andrelita Sto. Domingo, to the damage and
prejudice of the latter in the total amount of P12,500.00 and that simultaneously or during the commission
of robbery, the above named accused Angelito Balagtas by means of violence, threats and intimidation
have carnal knowledge of the said Andrelita Sto. Domingo against her will and by means of force.
"That in the commission of this crime the aggravating circumstances were present, to wit: (1) nocturnity,
(2) superior strength and (3) with a [sic] use of a knife.
"Contrary to law."

At the trial, the prosecution presented private complainant Andrelita Sto. Domingo as its principal witness. She
testified as follows:
In the evening of August 22, 1991, private complainant's husband went to San Jose del Monte, Bulacan to haul
chicken. She retired to their bedroom. She was joined by her three (3) children, while their maid went down to the
basement to sleep.[5] The bedroom is on the elevated portion of their bungalow-type house in Tumana, Sta. Maria,
Bulacan, while another room is located in the basement. [6] The toilet and bath in the bedroom had a grill-less window
with glass jalousies that open to the roof of the terrace. [7] The lights in the bedroom and the bathroom were on [8] at
the time that she and her children fell asleep that evening.
Private complainant woke up when she felt her thighs being rubbed. Thereupon, she saw two (2) men in black
jackets with their faces covered with handkerchiefs.[9] She described one of them as medium built and the other as a
small man. The medium-built man poked a 6-inch knife at her neck and ordered her to open the vault inside the
room.[10] The two men took the cash in the vault amounting to P2,000.00 and jewelry worth P12,000.00.[11]
Upon orders of the medium-built man, the small man untied the curtain band and handed the same to
him. While undoing the curtain, the handkerchief loosened, revealing the small man's face to be that of Eric
Mendoza.[12] Private complainant recognized him because he used to work in her uncle's steel factory in Tumana,
Sta. Maria, Bulacan.[13] After the medium-built man had tied her hands with the curtain band and gagged her with a
torn t-shirt, the small man helped him carry private complainant to the bathroom. It was then that she noticed the
missing jalousie blades on the window.[14]
The medium-built man sent the small man out of the bathroom, through the window, to stand guard on the
terrace roof.[15] Alone with private complainant inside the bathroom, the medium-built man removed the handkerchief
covering his face, raised her t-shirt and began sucking her breast. While keeping the knife pointed at her neck, he
forcibly removed her jogging pants and underwear, laid her on the bathroom floor, and sexually abused her for about
two minutes.[16] In the meantime, private complainant could see the small man peeping through the window and
watching her being raped.[17]
After satisfying his lust, the medium-built man threatened to kill her and her family if she would tell anyone
about what had happened. He went out through the bathroom window and joined the small man on the terrace roof.
[18]

In the early morning of August 23, 1991, private complainant's husband arrived and learned of the incident from
her. At about 10:00 o'clock that morning, they reported the crime to Mr. Rico Jude Sto. Domingo, the Barangay
Chairman of Tumana, Sta. Maria, Bulacan. [19] On August 25, 1991, they also informed the Sta. Maria Police of the
incident, but they deliberately left out the details regarding the rape to avoid public embarrassment. [20]
They reconsidered later their decision to keep the rape a secret. On August 27, 1991, they went to the office of
the National Bureau of Investigation (NBI) where private complainant was examined by Dr. Floresto Arizala, Jr., a
medico-legal officer.[21] On August 31, 1991, they returned to the Sta. Maria Police Station and reported the rape. [22]
Other prosecution witnesses included Dr. Arisala, Jr., the NBI medico-legal officer; Mr. Rico Jude Sto. Domingo,
the Barangay Chairman; and Mr. Rolando de Jesus, an uncle and neighbor of private complainant.
On the witness stand, Dr. Arisala, Jr. confirmed his signature on Living Case Report No. MG-91-863. He stated
that there was no injury on private complainant's genital area. He made no conclusion, however, as to whether or
not she was raped, since in cases like hers where the hymen has been thinned by several completed pregnancies,
sexual intercourse no longer causes any injury or laceration to the hymen. [23]
Mr. Rico Jude Sto. Domingo has known Mendoza for six (6) years. He testified that on August 23, 1991, private
complainant and her husband went to his house to report the robbery and rape incident. He made the
corresponding entry in the Barangay Blotter.[24] On August 25, 1991, Mendoza's father presented his son to Mr. Sto.
Domingo, who, thereupon, brought them to private complainant's house. There, a confrontation ensued. Mendoza
eventually admitted to having pointed the private complainant's house to Balagtas as a possible object of robbery.
[25]
He said that Balagtas was his uncle and identified him as the rapist. [26] After the confession, Mr. Sto. Domingo
turned Mendoza over to the Sta. Maria police before whom he revealed that Balagtas was from San Miguel,
Bulacan. The Sta. Maria police coordinated with the San Miguel police to arrest Balagtas.
Mr. Rolando de Jesus testified that the house of private complainant, who happens to be his niece, is only one
hundred (100) meters away from their house. Their houses are on the side of a private road. While negotiating this
road on his car in the evening of August 20, 1991, at about 8:00 o'clock, Mr. de Jesus noticed two persons lingering
at the back of private complainant's house. He recognized one of them to be Mendoza who was seemingly showing
to his companion the location of the windows on the second floor of the house. Mendoza was specifically pointing at
the window without iron grills above the terrace roof.[27]

There were no other witnesses for the defense except the accused themselves both of whom put up similar
claims of alibi.
Mendoza testified that he was in their house in Tumana, Sta. Maria, Bulacan with his grandparents and
cousins, Totoy, Rodel, Buboy and Ana in the early morning of August 23, 1991.He denied any confrontation with
private complainant at her house where he allegedly confessed his complicity in the robbery incident. He claimed to
have been brought by Mr. Sto. Domingo, the Barangay Chairman, to the municipal building in August, 1991 where
he was detained in a cell, investigated and forced to admit his guilt after having been mauled for about fifteen (15)
minutes.
Balagtas testified that in the early morning of August 23, 1991, he was in their house in Pinambaran, San
Miguel, Bulacan.[28] Less than a year after, he was brought to the municipal building of Sta. Maria where he was, like
Mendoza, mauled and forced to make a confession.[29] He also denied that Mendoza was his nephew.[30]
The trial court paid no heed to the defenses of Mendoza and Balagtas. It gave full credence to the evidence of
the prosecution which it found to have established their guilt beyond reasonable doubt. The trial court ruled, viz:
"In view of the foregoing evidence, the Court is morally convinced that the prosecution has established
beyond reasonable doubt the guilt of the accused. Although Eric Mendoza did not participate in sexually
abusing the victim, he and Angelito conspired and helped one another commit the crime of Robbery with
Rape.
The crime having been committed before the enactment of R.A. 7659 restoring death penalty, the court
can only impose the penalty of Reclusion Perpetua.
WHEREFORE, the Court finds the accused Eric Mendoza and Angelito Balagtas guilty beyond reasonable
doubt of the crime of Robbery with Rape. The Court imposes upon the accused the penalty of Reclusion
Perpetua.
To pay the offended party P12,000.00 actual damage and P100,000.00 moral damage with costs.
SO ORDERED."
The records show that only Mendoza filed a notice of appeal. As to Balagtas, therefore, the trial court judgment
has become final and executory.
Mendoza assigns the following errors:
"I
"THE COURT A QUO ERRED IN FINDING THAT CONSPIRACY EXISTED IN THE COMMISSION OF
THE CRIME OF ROBBERY WITH RAPE.
"II
"THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT ERIC
MENDOZA HAS BEEN PROVEN BEYOND REASONABLE DOUBT.
III
"THE COURT A QUO GRAVELY ERRED IN NOT APPRECIATING THE PRIVILEGED MITIGATING
CIRCUMSTANCE OF MINORITY IN FAVOR OF THE ACCUSED-APPELLANT ERIC MENDOZA."[31]
This Court affirms the conviction of Mendoza for the crime of robbery with rape.
First. We are in accord with the trial court's evidentiary findings, largely based on private complainant's
testimony, that Mendoza participated as a principal in robbing her of the cash and jewelries in their house vault. She
was a veracious witness whose testimony was forthright, consistent and credible. In a long line of cases, we have
held that if the testimony of the rape victim is accurate and credible, a conviction for rape may issue upon the sole
basis of the victim's testimony because no decent and sensible woman will publicly admit being a rape victim and
thus run the risk of public contempt unless she is, in fact, a rape victim. [32] In the instant case, private complainant's
credibility can not be doubted, not only because her testimony is corroborated by other prosecution witnesses, but
also because she had absolutely no motive to falsely implicate the accused. [33] A married woman with a husband
and three daughters would not publicly admit that she had been criminally abused unless that was the truth.

Significantly, too, the private complainant made her statements to the Barangay Chairman and the Sta. Maria
Police immediately after the commission of the crime when she hardly had time or opportunity to fabricate a
falsehood.
Nonetheless, Mendoza assails the testimonies of Rico Jude Sto. Domingo and Rolando de Jesus as biased
because they are relatives of private complainant. But mere relationship to the victim is not a ground to exclude a
witness or reject his testimony, absent a showing of evil motive on his part to testify falsely against the accused.
[34]
The defense, in this case, made no such showing, hence, the testimonies of Sto. Domingo and de Jesus are
worthy of full faith and credit.[35] In fact, as relatives of the victim, they are naturally interested in implicating only the
real culprits, for otherwise, the latter would thereby gain immunity. [36] While revenge is a normal reaction in a person
who has lost loved ones because of a crime, it does not follow that the revenge would be directed aimlessly so as to
include innocent persons.[37]
Second. We do not believe Mendoza's alibi. He insists that he was at home in the early morning of August 23,
1991 with his grandparents and four (4) cousins. The defense, however, failed to put them on the witness
stand. Neither did they execute any statement under oath to substantiate Mendoza's alibi. At any rate, we have
consistently ruled that where an accused's alibi can only be confirmed by his relatives, his denial of culpability
deserves scant consideration, especially in the face of affirmative testimonies of credible prosecution witnesses as
to his presence in the crime scene. [38] For his alibi to be considered favorably, Mendoza must prove not only that he
was somewhere else when the crime took place but also that it was physically impossible for him to have been at
the scene of the crime when it was committed. [39] By his own admission, Mendoza lives in Tumana, Sta. Maria,
Bulacan, or in the same area as the victim's residence. It was easy for Mendoza to negotiate the distance between
his house and the victim's house. Mendoza's alibi cannot exculpate him.
Third. Mendoza claims that he was mauled into confessing culpability for the robbery. In the first place, there is
no proof at all of the mauling incident to support his charge. More importantly, independent of that confession, there
is evidence beyond reasonable doubt of his participation as co-conspirator in committing the robbery. To repeat, the
victim positively and unequivocally identified him and her testimony has been corroborated by the other prosecution
witnesses.
Fourth. Mendoza underscores that the stolen items were not recovered from him by the police. It has never
been the rule in this jurisdiction, however, that such a fact can diminish the guilt of a robber whose complicity in the
crime has been established by proof beyond reasonable doubt. The presumption that a person in whose custody
are found stolen items, is prima facie the robber or the thief,[40] does not translate into a converse presumption that a
person indicted for robbery or theft should be acquitted when the authorities do not recover the stolen items from
him. The production in court of the stolen property is not an indispensable requisite to sustain conviction as long as
there is clear proof of the commission of the crime charged. [41]
Fifth. Mendoza claims that he has been charged and convicted of a crime he did not commit, considering that
he did not rape Andrelita Sto. Domingo. If at all he were guilty of a crime, it was only of robbery, not robbery with
rape.
We disagree.
Robbery with rape is a special complex crime punished under the second paragraph of Article 294 of the
Revised Penal Code which reads:
"Art. 294. Robbery with violence against or intimidation of persons--Penalties.--Any person guilty of
robbery with the use of violence against or intimidation of any person shall suffer:
"x x x x x x x x x
"2. The penalty of reclusion temporal in its medium period to reclusion perpetua, when the robbery shall
have been accompanied by rape or intentional mutilation, or if by reason or on occasion of such robbery,
any of the physical injuries penalized in subdivision 1 or article 263 shall have been inflicted: Provided,
however, That when the robbery accompanied with rape is committed with the use of a deadly weapon or
by two or more persons, the penalty shall be reclusion perpetua to death.
"x x x x x x x x x" (underscoring ours)
When two or more persons are charged as co-conspirators in the crime of robbery with rape, the conspiracy to rob
is all that is needed to be proven to punish them all as principals in the crime of robbery with rape. The rape may
have been perpetrated by only one of them, but they will all be convicted of robbery with rape, because the rule in
this jurisdiction is that whenever a rape is committed as a consequence, or on the occasion of a robbery, all those
who took part therein are liable as principals of the crime of robbery with rape, although not all of them actually took

part in the rape.[42] It is enough that robbery shall have been accompanied by rape to be punishable under the The
Revised Penal Code which does not differentiate whether the rape was committed before, during or after the
robbery.[43] Thus, we have held in one case that where one of the accused acted as guard while rape was being
committed on the occasion of the robbery, he is guilty as co-principal of the crime of robbery with rape. [44] As we
explained in the 1918 case of United States v. Tiongco:
" x x x [T]he robbers seizing the money and the other effects they found in said house, two of them sullied
the honor of the two women living therein, and the companions of the two men who committed the rape
made no opposition nor prevented these latter from consummating this other crime, apparently
unconnected with and unrelated to that of robbery, but which, as well as sanguinary crimes, is often
committed on such occasions, and it is for this reason that the penal law, in odium of such offenses
against property and chastity, has considered them complex and punished them by one single penalty.
"x x x The defendants Rufu Tiongco and Pedro Huerva, who took no part in the rape of the women
Juaneza and Eusula, cannot be excepted from this penalty for the reason that the penal law does not
require the condition that the rape be committed prior to, or simultaneously with the robbery, it being
sufficient that this crime be perpetrated on the occasion of the robbery. So the law says, in the definition of
the crime, that when the robbery is accompanied by rape or mutilation caused purposely, all the robbers
who took part in the perpetration of the complex crime are liable for all the offenses falling within the
limitation of certain circumstances specified by the law, committed by the members of the band.
"x x x x x x x x x
"Therefore, the defendants Tiongco and Huerva, for the very reason that they are liable for the said crime
of robbery in a band, are likewise liable for all the other acts performed on the occasion of the robbery,
although they may not actually and materially have taken any part in the rape committed upon those two
women by the other two defendants, their companions Ledesma and Castano.
"If any of the defendants had wounded or killed an inmate of the house that they robbed, all the
defendants would, under the law, have been punished for the complex crime of robbery with the infliction
of wounds of the commission of homicide; and, in the present case, because two of the robbers raped two
women, all the malefactors are liable for the complex crime in question." [45]
In other words, for Mendoza to be convicted only of the crime of robbery, he must prove not only that he himself did
not abuse the victim but that he tried to prevent the rape. We have previously ruled that once conspiracy is
established between the two accused in the commission of the crime of robbery, they would be both equally
culpable for the rape committed by one of them on the occasion of the robbery, unless any of them proves that he
endeavored to prevent the other from committing rape.[46]
Mendoza cannot seek sanctuary in our jurisprudence that where there is no evidence that the accused was
aware of his co-accused's lustful intent and his consummation thereof so that he could have attempted to prevent
the same, the former should be held only for the robbery and not for the rape. [47] In the case at bar, the evidence
shows that during the commission of the rape, Mendoza climbed up and out of the bathroom through the window
and stayed at the roof of the terrace. The window, located above the roof of the terrace, was about 3-1/2 meters
away from where the victim and Balagtas were. Mendoza knew of the rape because the private complainant saw
him peep through the window and watch what was being done to her by Balagtas. Nonetheless, Mendoza did
nothing to prevent the rape.
Lastly, Mendoza submits that the trial court erred in not appreciating the privileged mitigating circumstance of
minority in his favor, considering that he was allegedly born on June 30, 1975 and was thus only 16 years, 1 month,
and 23 days old on August 23, 1991, the day the crime was committed.
The burden of proof that Mendoza was a minor at the time of the commission of the offense is on him. [48] He
presented, however, conflicting evidence of his date of birth. On the one hand, when Mendoza filed in the trial court
a Motion for Release of the Accused Under Recognizance [49] on August 21, 1992, he attached a photocopy [50] of his
birth certificate indicating his birthday to be June 30, 1981. On the other hand, when he testified in open court on
September 8, 1992, he declared that he was born on June 30, 1975. [51] And then just two days after that declaration,
he filed in the trial court a Manifestation [52] with an original copy of his birth certificate, complete with documentary
stamps and the seal of the Local Civil Registrar of Sta. Maria, Bulacan, indicating his date of birth to be June 30,
1974.[53]
After going through the said evidence, we find that Mendoza was born on June 30, 1974 and was thus 17 years
old at the time of the commission of the crime. The special mitigating circumstance of minority under Paragraph 2,
Article 68 of the Revised Penal Code should, therefore, be appreciated in Mendoza's favor. Said provision reads:

"ART. 68. Penalty to be imposed upon a person under eighteen years of age. x x x
"1. x x x x x x x x x
2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed
by law shall be imposed but always in the proper period."
The penalty prescribed by law for the crime of robbery with rape is reclusion perpetua to death. Applying Article
61 (2) of the Revised Penal Code, the penalty next lower in degree is reclusion temporal. We agree with the trial
court that the aggravating circumstances of nocturnity and abuse of superior strength attended the commission of
the crime. Even the defense did not make any issue of this. When one or more aggravating circumstances are
present in the commission of the crime, with no ordinary mitigating circumstances to offset them, the penalty shall
be imposed in its maximum period. [54] The imposable penalty prescribed by law, therefore, is reclusion temporal in its
maximum period. We further apply the Indeterminate Sentence Law authorizing the minimum term of the
indeterminate sentence to be within the range of the penalty next lower to that prescribed for the offense. [55] In view
of all these, this Court imposes upon Mendoza the indeterminate sentence of 10 years and 1 day of prision mayor in
its maximum period to 18 years, 2 months and 21 days of reclusion temporal in its maximum period.
WHEREFORE, premises considered, the decision of the Regional Trial Court of Bulacan, Third Judicial Region,
Branch 14, Malolos, dated May 18, 1995, finding ERIC MENDOZAguilty beyond reasonable doubt of the crime of
Robbery with Rape and liable for P12,000.00 as actual damages and P100,000.00 as moral damages, with costs, is
HEREBY AFFIRMED with the modification that this Court imposes upon ERIC MENDOZA an indeterminate
sentence of 10 years and 1 day of prision mayor in its maximum period to 18 years, 2 months and 21 days
of reclusion temporal in its maximum period. No pronouncement as to costs.
SO ORDERED.

THIRD DIVISION
[G.R. No. 128966. August 18, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN DE VERA y GARCIA,
RODERICK GARCIA y GALAMGAM, KENNETH FLORENDO and ELMER
CASTRO, accused, EDWIN DE VERA y GARCIA, appellant.
DECISION
PANGANIBAN, J.:
When is a lookout deemed an accomplice and when a conspirator? What is the distinction between the two?
These are the main questions passed upon by the Court in resolving the present appeal, which assails the
March 12, 1997 Decision[1] of the Regional Trial Court of Quezon City (Branch 57) in Criminal Case No. Q-92-31323,
finding Appellant Edwin De Vera and Accused Roderick Garcia guilty beyond reasonable doubt of murder and
sentencing them to reclusion perpetua.
In an Information dated June 11, 1992, Assistant City Prosecutor Tirso M. Gavero charged with murder
Appellant Edwin De Vera, together with Roderick Garcia and two other persons who were subsequently identified
during the trial as Kenneth Florendo and Elmer Castro. The crime was allegedly committed as follows:
That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring [and]
confederating [with] and helping xxx two (2) other persons, did then and there wilfully, unlawfully and feloniously with
intent to kill, with evident premeditation, treachery and use of superior strength, attack, assault and employ personal
violence upon the person of one FREDERICK CAPULONG y DIZON, by then and there shooting him with the use of
a .22 cal. with trade mark Paspar Armas bearing SN-29069 with five (5) pieces of caliber 22 ammo inside, hitting
him between his eyes and striking him with the use of a baseball bat in the mouth, thereby inflicting upon him
serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and
prejudice of the heirs of the said Frederick Capulong y Dizon.[2]

On July 9, 1992, Assistant City Prosecutor Enrico P. Bringas filed a Motion to Amend the Information to include
the use of a .32 caliber firearm in the killing of Frederick Capulong. The trial court granted the Motion, and the
Amended Information now reads as follows:
That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring [and]
confederating [with] and helping xxx two (2) other persons, did then and there wilfully, unlawfully and feloniously with
intent to kill, with evident premeditation, treachery and use of superior strength, attack, assault and employ personal
violence upon the person of one FREDERICK CAPULONG y DIZON, by then and there shooting him with the use of
a .22 cal. with trade mark Paspar Armas bearing SN-29069 with five (5) pieces of caliber 22 ammo inside and a .32
cal. firearm of still undetermined make, hitting him between his eyes and striking him with the use of a baseball bat
in the mouth, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of
his untimely death, to the damage and prejudice of the heirs of the said Frederick Capulong y Dizon. [3]
On their arraignment, Appellant Edwin De Vera [4] and Roderick Garcia[5] pleaded not guilty. The other two
accused were at large. Trial in due course proceeded only against De Vera and Garcia. Thereafter, the trial court
rendered the assailed Decision, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding the accused EDWIN DE VERA y GARCIA and RODERICK
GARCIA y GALAMGAM guilty beyond reasonable doubt of the crime of MURDER and they are hereby accordingly
sentenced to suffer reclusion perpetua, including all its accessory penalties; to indemnify the heirs of Frederick
Capulong y Dizon, as follows:
a) P50,000.00, as death indemnity;
b) P211,670.00, as compensatory damages;
c) P600,000.00, as indemnification for loss of earning capacity;
d) P500,000.00, as moral damages;
e) Interest at the legal rate on a) and b), hereof from the filing of the information until full payment; and,
f) Costs of suit.[6]
Only Edwin De Vera filed a Notice of Appeal.[7]
THE FACTS

VERSION OF THE PROSECUTION

In its Brief,[8] the Office of the Solicitor General presented the following narration of facts: [9]
As earlier stated, the prosecution presented an eyewitness in the person of Bernardino Cacao, a resident of Denver
Loop Street, Filinvest II, Quezon City before he moved to No. 58 Elisa Street, Caloocan City. He was residing at
Filinvest II, together with his wife and children, at the time of the incident on June 28, 1992 in the house owned by
David Lim. He was then employed at a Kodak branch in Caloocan City, while his wife served as secretary of the
homeowners association.
About 1:30 in the afternoon of June 8, 1992, while bringing out the garbage, the witness saw a car passing by,
driven by victim Frederick Capulong together with four (4) other passengers. He knew the victim by name who was
a resident of the subdivision. He recognized and identified two of the passengers as Kenneth Florendo and
Roderick Garcia, both familiar in the subdivision.
Cacao did not at first notice anything unusual inside the car while it passed by him, but then he heard unintelligible
voices coming from the car as it was cruising around Denver Loop Street, a circular road whose entrance and exit
were through the same point (ibid, p. 12). His curiosity taking [the] better part of him, Cacao walked to the opposite
side of the road from where he saw the car already parked. Moments later, he saw the victim dragged out of the car
by Florendo and brought to a grassy place. Florendo was holding a gun (ibid, p. 13). Upon reaching the grassy spot,
Florendo aimed and fired the gun at the victim, hitting him between the eyes. After the shooting, Florendo and his
companions fled in different directions.
When he submitted a sworn statement to the investigating prosecutor, Cacao attached a sketch of the crime scene
prepared by police officers, indicating therein his relative position at the time of the incident. While testifying in court,
Cacao identified Garcia and pointed to appellant as among the companions of Florendo.

Ten minutes later, or about 2:40 in the afternoon, the desk officer of the Investigation Division, Station 5, Central
Police District, Quezon City received a report about the shooting incident from a security guard of the subdivision.
The officer immediately dispatched a team to Filinvest II, composed of PO2 Armando Garcia, PO3 Armando Junio,
and PO3 Jovencio Villacorte, to investigate and gather evidence (TSN, p. 5, September 13, 1993). A security guard
guided the team to the corner of Denver and Doa Justina Streets, site of the shooting, where they discovered blood
stains and damaged grass (ibid, p. 6). The guard informed them that the victim was rushed to the East Avenue
Medical Center by other security guards. The policemen then found a color red sports car with plate no. NBZ 869,
with engine still running and its doors opened. They recovered inside the car several class cards and a license
belonging to one Ric Capulong, who was later identified as Frederick Capulong.
The policemen went around the subdivision to look for possible suspects. They came upon a person wearing
muddied maong pants and white t-shirt standing and walking around near the clubhouse of the subdivision. When
asked his name, the person identified himself as Edwin de Vera, herein appellant. Explaining the mud stains on his
pants, appellant declared that he was a victim of a hold-up. Suspicious [of] his conduct, the policemen brought
appellant to Station 5 and turned him over to the desk officer for investigation.
Another prosecution witness, SPO3 Mario Guspid, a police investigator since 1989, was assigned to investigate the
shooting of Frederick Capulong. He was assisted by SPO4 Pablito Selvido, SPO2 Armando Rivera, SPO3 Jovencio
Villacorte, SPO3 Rolando Gacute, SPO3 Danilo Castro and other police officers.
Upon receiving his assignment, SPO3 Guspid immediately went to the East Avenue Medical Center where he saw
the victim lying inside the intensive care unit receiving medical treatment. The victim was unconscious. After
conferring with the victims parents and relatives, SPO3 Guspid returned to Station 5. On his arrival, the desk officer
referred appellant to him for questioning. He was told that appellant was picked up near the crime scene acting
suspiciously. When appellant was asked about his participation in the shooting, he was reluctant at first to talk, but
later relented after SPO3 Guspid told him that his conscience would bother him less if he would tell the truth.
Without any hesitation, appellant admitted being [with the] group which perpetrated the crime, and implicated
Roderick Garcia. He was then persuaded to accompany a group of policemen to the residence of Garcia, which
turned out to be at Doa Justina Street, Filinvest II Subdivision. Finding Garcia at home, SPO3 Guspid informed him
that he was implicated by appellant [in] the crime. He was then invited to the station to shed light [on] the incident.
Garcia consented.
At Station 5, SPO3 Guspid interviewed appellant and Garcia. In the course of the interview, Garcia revealed the
place where he hid a .22 caliber gun, black t-shirt and black cap. According to Garcia, Florendo asked them to wear
black t-shirts. With the revelation, SPO3 Guspid, SPO2 Rivera, SPO3 Gacute and SPO3 Castro, together with the
suspects, went back to the subdivision and proceeded to a grassy portion near the boundary of Filinvest II and San
Mateo, Rizal. The place was near a creek and about 50 meters away from the residence of Garcia (TSN, pp. 9-14,
September 30, 1993). Truly, the policemen recovered a .22 caliber revolver, black t-shirt and black cap (TSN, pp.
12-13, August 24, 1993). While there, SPO3 Guspid and SPO2 Rivera prepared a sketch of the crime scene to
reflect the explanations and answers given by appellant and Garcia in response to their questions. As identifying
marks, SPO3 Gacute placed his initials OG (acronym for his first name and family name) between the handle and
cylinder of the gun, and on the neck of the t-shirt, as well as in the inner lining of the black cap.
From the crime site, the policemen and the suspects returned to Station 5 where SPO3 Guspid asked them if they
were willing to give their written statements, to which they assented. Consequently, they were brought to the
Integrated Bar of the Philippines, Quezon City Chapter, at Malakas Street, Diliman, Quezon City. They were then
introduced to Atty. Confesor Sansano, the [c]hairman of the Free Legal Aid of the IBP. Also, present at that time
were appellants relatives, including his mother and sisters, and other lawyers of the IBP.
SPO3 Guspid inquired from them if they would agree to be assisted by Atty. Sansano, a competent lawyer. They
replied in the affirmative. Thereafter, the two conferred with Atty. Sansano.
Atty. Sansano, a rebuttal witness of the prosecution, testified that upon arrival of the suspects [i]n his office, he
requested the policemen, as a matter of policy, to step outside the building in order to assure that no pressure would
be exerted on the suspects even by their mere presence (TSN, p. 6, November 6, 1996). After they left, Atty.
Sansano interviewed the suspects for about twenty minutes, informing them of their rights under the constitution and
inquiring from them if they indeed wanted to give voluntary statements. To the query, the suspects answered
positively. They also affirmed their earlier declaration that they were willing to be assisted by the IBP (ibid, pp. 8-9).
He further advised them of their right during the investigation to answer or not to answer the questions which they
thought would incriminate them, but they retorted that they fully understood their right.
Satisfied that they were not coerced or threatened to give their statements, Atty. Sansano requested the suspects to
show their upper bodies to enable him to determine any telltale signs of torture or bodily harm. Finding no such
signs, he then summoned the policemen to re-enter the building. The investigators readied two typewriters and each

suspect was assigned to an investigator. He served as the lawyer of the suspects, cautioning them against
answering questions that they did not understand, and to seek xxx a clarification, if needed.
According to Atty. Sansano, the interrogation took place in his office, a single separate room from where his five staff
members were visible. He sat between the two tables used by the investigators for typing the questions and
answers, involving himself from beginning to end of the investigation until the signing of the statements. He never
left the office to attend to anything else, consistent with [the] standing policy of the IBP to properly safeguard the
rights of suspects during investigation.
He recalled that the investigators first typed the headings of the statements, then informed the suspects before
starting the investigation about their rights under the constitution, specifically, the right of the suspects to have a
lawyer of their own choice; if not, the police would provide them with one who would assist them; that they could
answer or refuse to answer the questions. The investigators also asked him if he was willing to serve as counsel of
the suspects. They also asked the suspects if they were willing to accept him as their counsel. They agreed
expressly by saying: Oho.
SPO3 Guspid investigated Garcia while SPO4 Selvido investigated appellant. They conducted the question and
answer investigation in Pilipino. The statement of appellant was marked as Exhibit O and that of Garcia was marked
as Exhibit N. The statements were signed by the suspects and Atty. Sansano.
For his part, SPO4 Selvido declared that SPO3 Guspid requested his help in taking the statements of the suspects
(TSN, p. 4, June 29, 1993). He took the statement of appellant in the presence of Atty. Sansano. Before proceeding,
he reminded appellant of the constitutional warnings, consisting of four (4) questions under the
heading Paunawa, to which the latter gave positive answers. The statement was signed by appellant and Atty.
Sansano. After taking down the statement, he turned over appellant to SPO3 Guspid.
Following the investigation, the policemen brought the suspects to the Philippine National Police Crime Laboratory
for paraffin testing. The result: both hands of Edwin de Vera y Garcia @ Boy/Bong gave positive results [in] the test
for gunpowder nitrates while both hands of Roderick Garcia y Galamgam @ Deo gave negative result [in] the test
for gunpowder nitrates.
After coming from the crime laboratory, SPO3 Guspid contacted the mother of the victim to get her own statement.
Next, he obtained a death certificate and prepared a referral to the Quezon City Prosecution Office which was
signed by Senior Inspector Ernesto Collado, Chief of the Station Investigation Division. During the inquest, the
prosecutor asked the suspects some clarificatory questions.
Surveillance and follow-up operations were conducted against Florendo and his other companion, Elmer Castro.
However, the two were never arrested and brought to trial.
VERSION OF THE DEFENSE

Appellant claims that he had no part in the killing, and that it was Kenneth Florendo who had shot the victim. He
avers that he merely accompanied to Filinvest the other accused and Florendo, who was his friend, upon the latters
request. A few hours after the shooting incident, appellant was picked up by the police, who subsequently tortured
and coerced him into signing his Statement regarding the incident. The trial court summarized appellants evidence
in this wise:[10]
Edwin de Vera admitted that, as of June 8, 1992, he and Kenneth Florendo were already close friends for about a
year, sometimes sleeping in the latters house at No 106 Kamias Road, Quezon City. His own residence at the time
was at No. 7 Bignay Street, Project 2, Quezon City. That was also the address of Elmer Castro, his and Kenneths
friend.
Edwin had slept in Kenneths house on Kamias Road from June 6 to June 8, 1992 and went home at 7:00 am of
June 8th. Later at around 10:30 am, Kenneth passed by Edwins house to invite him back to [the formers] house that
morning and to bring Elmer along. Kenneth mentioned that he, his girlfriend, and Deo, who were then with him,
would be going somewhere first. Deo, or Roderick Garcia, was another friend of Kenneths.
Edwin and Elmer later went to and arrived at Kenneths house at 11:00 am. Kenneth, his girlfriend, and Deo were
already taking lunch, and invited the two to lunch. After lunch, Kenneth asked Edwin to go with him to Filinvest
without telling why. It was Deo who mentioned to Edwin that Kenneth was going to see a friend. Edwin was not
aware if Kenneth had also asked the others to go with him to Filinvest, but the four of them Kenneth, Edwin, Elmer,
and Deo later proceeded to Filinvest [i]n Kenneths car. Edwin sat at the back seat. The time was past 12:00 noon.
Kenneth drove his car. Upon reaching Filinvest, Kenneth stopped at a house and the four of them alighted in front of
the house. Edwin did not know whose house it was. Kenneth and Elmer told Edwin and Deo to wait near the car

because they were going to see a friend. At that point in time, Edwin knew the person[,] whom Kenneth and Elmer
went to see[,] by name, never having met him personally before then. From his conversation with Deo, Edwin found
out that the house was where Deo stayed.
Then, Edwin heard the voices of Kenneth and his friend and they appeared to be arguing ( x x x x parang nagtatalo
sila). The voices came from some twenty-two (22) meters away. Not before long, Edwin also heard a gunshot which
came from where Kenneth and Elmer had gone to. He was shocked because he was not used to hearing gunfire.
Frightened, he panicked and ran away from the place. His singular thought while running was to get out of Filinvest.
Deo also ran away.
Edwin denied that either he or Deo carried any firearm on that occasion.
Edwin was arrested by the police at past 2:00 pm when he was already outside of Filinvest subdivision in front of
Batasan. He was brought to Station 5 where four (4) persons in civilian attire tortured him by forcing him to lie down
on a bench, tying his feet together and binding his hands from his back with handcuffs, and then covering his face
with a piece of dirty cloth into which water was poured little by little into his face and mouth, while one of them sat on
his thighs. This maltreatment lasted for about 20 or 25 minutes, because they wanted him to admit something and to
name my companions but he refused to admit or to name anyone. They next took him outside to a mango tree
where they repeated his ordeal for 30 minutes. At one point during the torture, a policeman untied his feet and
hands and poked a gun to his temple, telling him to run as it was his chance to escape, but he did not escape
because he could see that they were merely frightening him.
None of the policemen told him that he could xxx get a lawyer[;] instead, one of them, whose name he [did] not
know, told him that I should listen only to them and not to anyone else. He claimed that he saw one [of] his
tormentors in court, and he identified him as police officer Rivera. Guspid did not participate in his torture, because
he merely took down his statement. His tormentors were not drunk or under the influence of drugs, but Guspid
seemed to be under the influence of drugs when he took his statement because of his troubled appearance.
Edwin was not advised to inform or call any of his relatives. Before his torture, his request to contact his relatives or
lawyer was turned down. His intimidation continued (x x x x puro pananakot and ginawa nila sa akin). After his
torture at the mango tree, he was returned inside and thrown into a cell, where he remained until the following day
(June 9th). During the night, an inmate named Cesar boxed him once in the upper body upon instruction of a
policeman. He was not given any dinner.
At around noontime of the next day (June 9 th), Edwin was taken out of the cell and brought to the IBP office by
police officers Guspid and Selvido. Also with them were Deo Garcia and two other police officers. At the IBP office,
the officers talked with one of the lawyers there, whom Edwin came to know to be Atty. Sansano only after the
lawyer was introduced (present) to him and Deo. That was the first he met and saw Atty. Sansano.
Atty. Sansano informed both Edwin and Deo that they had the choice whether to talk or not. Edwin could not make
any comment because wala po ako sa sarili ko. Then, Atty. Sansano warned Edwin substantially that: Alam nyo ba
na ang salaysay na ito ay maaring hindi ninyo sumpaan, referring to the statement taken from Edwin by officers
Guspid at around past 8 pm until 9 pm on the day before (June 8, 1992) at the police station. He was not assisted
by counsel, and had no relatives present. Guspid appeared to be like drunk or tipsy, when he took down Edwins
statement that night.
At the IBP office, Edwins and Deos statement were taken separately by Guspid and Selvido, respectively. At the
time, Edwin and Deo were about six (6) meters from each other, but he could hear what was being asked of Deo.
Guspid asked the questions and typed both the questions and his answers, which were given in Tagalog. All the
while, Atty. Sansano was inside his office, which was about seven (7) meters away from where he and Guspid were
situated. The office of Atty. Sansano was separated by a divider, so that he could not see what Atty. Sansano was
doing at the time. After the questioning, he signed a paper which he was not able to read. He did not see Atty.
Sansano sign the paper.
xxxxxxxxx
On July 14, 1992, Edwin executed a so-called salaysay ng pagbabawi ng sinumpaang salaysay, which he swore to
before Prosecutor Tobia of Quezon City, for the purpose of recanting his statements given at the precinct in the
evening of June 8, 1992 and at the IBP office on June 9, 1992 on the ground that they were given under coercion,
intimidation, and in violation of his constitutional rights.
Ruling of the Trial Court

Based on the testimony of Eyewitness Bernardino Cacao, the trial court ruled that it was indeed Kenneth
Florendo who had actually shot the victim, Roderick Capulong. It convicted appellant as a principal, however,

because the scientific and forensic findings on the criminal incident directly and substantially confirmed the
existence of conspiracy among the four [accused], namely, Kenneth Florendo, Elmer Castro, Edwin de Vera, and
Roderick Garcia.[11]
The Issues

Appellant submits for the consideration of this Court the following alleged errors:
I
THE TRIAL JUDGE ERRED IN NOT FINDING THAT PROSECUTION EYE-WITNESS BERNARDO CACAO HAD
TESTIFIED TO NO CRIMINAL ACT OF APPELLANT;
II
THE TRIAL JUDGE ERRED IN FINDING AND CONCLUDING THAT THERE WAS A CONSPIRACY TO KILL THE
VICTIM AND THAT APPELLANT WAS A CO- CONSPIRATOR;
III
THE TRIAL JUDGE ERRED IN ADMITTING EXHIBIT O, ALLEGED STATEMENT OF APPELLANT; AND IN NOT
DECLARING THE SAME AS AN INADMISSIBLE EVIDENCE CONSIDERING THE BARBARIC MANNER UNDER
WHICH IT WAS EXTRACTED/OBTAINED FROM THE APPELLANT WHICH VIOLATED THE LATTERS
CONSTITUTIONAL RIGHTS;
IV
THE TRIAL COURT ERRED IN NOT FINDING AND DECLARING THAT THE PROSECUTION HAS NOT PROVED
THE APPELLANTS GUILT BEYOND REASONABLE DOUBT AND IN NOT ACQUITTING THE APPELLANT.[12]
In the main, the Court will resolve three questions: (1) the sufficiency of the prosecution evidence, (2) the
admissibility of appellants extrajudicial statement, and (3) the nature of his liability.
The Courts Ruling

The appeal is partly meritorious. Appellant should be convicted only as an accomplice, not as a principal.
First and Third Issues:

Sufficiency of Prosecution Evidence and Appellants Liability

Because the first and the third questions mentioned above are interrelated, they shall be discussed jointly.
Eyewitness Account

In ruling that there was conspiracy between Florendo, Castro, Garcia and Appellant De Vera, the trial court
relied mainly on the testimony of Eyewitness Cacao. Specifically, it based its conclusions on the following facts:
appellant was seen with the other accused inside the victims car; the victim was clearly struck with a blunt object
while inside the car, and it was unlikely for Florendo to have done it all by himself; moreover, it was impossible for
De Vera and Garcia to have been unaware of Florendos dark design on Roderick.
We disagree. It is axiomatic that the prosecution must establish conspiracy beyond reasonable doubt. [13] In the
present case, the bare testimony of Cacao fails to do so.
Cacao testified that he saw Appellant De Vera in the car, where an altercation later occurred. Thereafter, he
saw Florendo drag out of the vehicle an apparently disabled Capulong and shoot the victim in the head moments
later.
Cacaos testimony contains nothing that could inculpate appellant. Aside from the fact that he was inside the
car, no other act was imputed to him. Mere presence does not amount to conspiracy. [14] Indeed, the trial court based
its finding of conspiracy on mere presumptions, and not on solid facts indubitably indicating a common design to
commit murder. Such suppositions do not constitute proof beyond reasonable doubt. As the Court has repeatedly
stated, criminal conspiracy must be founded on facts, not on mere surmises or conjectures. Clearly, Cacaos
testimony does not establish appellants culpability.

Appellants Extrajudicial Statement

Aside from the testimony of Cacao, the prosecution also presented Appellant De Veras extrajudicial statement,
which established three points.
First, appellant knew of Kenneth Florendos malevolent intention.
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging
kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at
napilitan akong sumama.[15]
Second, appellants companions were armed that day, a fact which revealed the unmistakable plan of the group.
T: Ikaw ba ay mayroong dalang armas noong hapon na iyo[n]?
S: Wala po akong dalang armas. Pero itong si Kenneth ay mayroong dalang dalawang baril[,] sina Deo at Elmer
ay wala. Pero noong naroroon na kami sa lugar ay ibinigay ni Kenneth ang isang baril niya kay Deo at itong
si Elmer ay mayroong nang dalang baseball bat.
Third, he cooperated with the other accused in the commission of the crime by placing himself at a certain
distance from Kenneth and the victim in order to act as a lookout. This is clear from the following portion of his
statement:
S: Kabarkada ko po si Kenneth at dalawang araw po akong nakitulog sa kanila at noong araw ng June 08, 1992
ay sinabihan ako ni Kenneth Gumabao na huwag raw akong uuwi, dahil [mayroon] daw po kaming lakad.
Pagkaraan ng ilang oras ay dumating naman itong si Roderick Garcia @ Deo at may sinabi sa kanya itong
si Kenneth at sinabi naman ito sa akin ni Deo na kaysa raw maunahan siya ni Frederick Sumulong [sic] ay
uunahan na raw po niya ito. Umalis po itong si Kenneth na kasama ang kanyang nobya at itong si Deo, para
ihatid ang kanyang [sic] sa hospital at bago sila umalis ay sinabihan ako ni Kenneth na sunduin ko raw itong
si Elmer Castro at magbhihai [magbihis] na rin daw ako at pagdating nila ay xxx lalakad na raw po kami.
Mga ilang oras pa ay sinundo ko na itong si Elmer Castro at pagdating namin sa bahay nila Kenneth ay
naroroon na itong si Kenneth at Deo. Matapos magpalit ng damit itong si Kenneth ay sumakay na kami sa
kanilang kotse at nagtuloy sa kanilang katabing bahay at doon ay kumain kami. Pagkatapos noon ay umalis
na kami at nagtuloy sa F[i]l-Invest. P[a]gdating namin sa isang lugar doon sa medyo malayo-layo sa bahay
nila Deo ay bumaba na itong si Deo at Elmer at sila ay nagpunta doon sa lugar ng pinagbarilan para kunin
ang bayad sa utang ni Fred[er]ick Capulong sa tiyuhin ni Deo. P[a]gkaraan ng ilang minuto ay sumunod po
kami ni Kenn[e]th sa lugar at ako ay naiwan nang medyo malayo-layo sa lugar upang tignan kung mayroong
darating na tao. Samantalang si Kenneth ay lumapit kina Deo at Frederick at kasunod noon ay nagkaroon
ng sagutan itong si Kenneth at Frederick at nakita kong inaawat ni Deo itong si Kenneth. Hindi nakapagpigil
itong si Kenneth at nasipa niya s[i] Frederick at kasunod noon ay binunot niya ang kanyang baril na kalibre .
38 at pinaputukan niya ng isang beses itong si Frederick na noong tamaan ay natumba sa lupa. Lumapit si
Elmer kina Kenneth habang binabatak ni Kenneth itong si Frederick at kasunod po noon ay lumapit sa akin
si Deo at sinabihan ako na tumakbo na kami. Tumakbo na po kami, pero ako po ay nahuli ng mga security
guard ng Subdivision at itong si Deo ay nahuli naman sa kanilang bahay. Itong sina Kenneth at Elmer ay
hindi pa nahuhuli.[16]
Appellant an Accomplice, Not a Conspirator

In other words, appellants presence was not innocuous. Knowing that Florendo intended to kill the victim and
that the three co-accused were carrying weapons, he had acted as a lookout to watch for passersby. He was not an
innocent spectator; he was at the locus criminis in order to aid and abet the commission of the crime. These facts,
however, did not make him a conspirator; at most, he was only an accomplice.
The Revised Penal Code provides that a conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. [17] To prove conspiracy, the prosecution must
establish the following three requisites: (1) that two or more persons came to an agreement, (2) that the agreement
concerned the commission of a crime, and (3) that the execution of the felony [was] decided upon. [18] Except in the
case of the mastermind of a crime, it must also be shown that the accused performed an overt act in furtherance of
the conspiracy.[19] The Court has held that in most instances, direct proof of a previous agreement need not be
established, for conspiracy may be deduced from the acts of the accused pointing to a joint purpose, concerted
action and community of interest.[20]

On the other hand, the Revised Penal Code defines accomplices as those persons who, not being included in
Article 17,[21] cooperate in the execution of the offense by previous or simultaneous acts. [22]The Court has held that
an accomplice is one who knows the criminal design of the principal and cooperates knowingly or intentionally
therewith by an act which, even if not rendered, the crime would be committed just the same. [23] To hold a person
liable as an accomplice, two elements must be present: (1) the community of criminal design; that is, knowing the
criminal design of the principal by direct participation, he concurs with the latter in his purpose; and (2) the
performance of previous or simultaneous acts that are not indispensable to the commission of the crime. [24]
The distinction between the two concepts needs to be underscored, in view of its effect on appellants penalty.
Once conspiracy is proven, the liability is collective and not individual. The act of one of them is deemed the act of
all.[25] In the case of an accomplice, the liability is one degree lower than that of a principal.
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.
Thus, in People v. Castro,[26] the Court convicted Rufino Cinco, together with two others, as a principal, although
he had acted merely as a lookout. The Court held that their concerted action in going armed and together to their
victims house, and there, while one stayed as a lookout, the other two entered and shot the mayor and his wife,
leaving again together afterwards, admits no other rational explanation but conspiracy. It may be noted further that
Cinco executed a Sworn Statement that the three of them, together with some others, had planned to kill the victim
on the promise of a P5,000 reward.
In People v. Tawat et al.,[27] the lookout, Nestor Rojo, was convicted as a principal for conspiring with two others.
The Court ruled that the conspiracy was shown by their conduct before, during and after the commission of the
crime. The Court also noted that, upon their arrest, they disclosed that they had intended to rob the victims store
and that they did so in accordance with their plan. In that case, it was clear that all three of them, including the
lookout, were the authors of the crime.
In People v. Loreno,[28] the Supreme Court convicted all the accused as principals because they had acted in
band. In acting as a lookout, Jimmy Marantal was armed at the time like the other conspirators, and he gave his
companions effective means and encouragement to commit the crime of robbery and rape.
Upon the other hand, in People v. Corbes,[29] the Court noted that Manuel Vergel knew of the criminal design to
commit a robbery, and that he cooperated with the robbers by driving the vehicle to and from the crime scene. In
convicting him as an accomplice and not as a conspirator, the Court observed that he was merely approached by
one of the robbers who was tasked to look for a getaway vehicle. He was not with the robbers when they resolved to
commit a robbery. When his services were requested, the decision to commit the crime had already been made.
In People v. Tatlonghari,[30] the Court was asked to resolve the responsibility of some appellants who knowingly
aid[ed] the actual killers by casting stones at the victim, and distracting his attention. The Court ruled that they were
accomplices and not co-conspirators, [i]n the absence of clear proof that the killing was in fact envisaged by them.
In People v. Suarez et al.,[31] Wilfredo Lara merely introduced the gang of Reyes to Suarez who intended to
perpetrate the crime with the help of the said group. In ruling that he was merely an accomplice, the Court noted
that there was no evidence showing that he took part in the planning or execution of the crime, or any proof
indicating that he profited from the fruits of the crime, or of acts indicative of confederacy on his part.
In People v. Balili,[32] the Court convicted appellant as an accomplice, holding that in going with them, knowing
their criminal intention, and in staying outside of the house with them while the others went inside the store to rob
and kill, [he] effectively supplied the criminals with material and moral aid, making him guilty as an accompliance.
The Court noted that there was no evidence that he had conspired with the malefactors, nor that he actually
participated in the commission of the crime.
In People v. Doble,[33] the Court held that Cresencio Doble did not become a conspirator when he looked for a
banca that was eventually used by the robbers. Ruled the Court: Neither would it appear that Joe Intsik wanted to
draft Crescencio into his band of malefactors that would commit the robbery more than just asking his help to look
for a banca. Joe Intsik had enough men, all with arms and weapons to perpetrate the crime, the commission of
which needed planning and men to execute the plan with full mutual confidence of each other, which [was] not
shown with respect to appellants by the way they were asked to look and provide for a banca just a few hours
before the actual robbery.

In the present case, Appellant De Vera knew that Kenneth Florendo had intended to kill Capulong at the time,
and he cooperated with the latter. But he himself did not participate in the decision to kill Capulong; that decision
was made by Florendo and the others. He joined them that afternoon after the decision to kill had already been
agreed upon; he was there because nagkahiyaan na. This is clear from his statement, which we quote again for the
sake of clarity:
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging
kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at
napilitan akong sumama.[34]
Significantly, the plan to kill could have been accomplished without him. It should be noted further that he alone
was unarmed that afternoon. Florendo and Garcia had guns, and Castro had a baseball bat.
In any event, the prosecution evidence has not established that appellant was part of the conspiracy to kill the
victim. His participation, as culled from his own Statement, was made, after the decision to kill was already a fait
accompli. Thus, in several cases, the Court has held:
[L]ack of complete evidence of conspiracy, that creates the doubt whether they had acted as principals or
accomplices in the perpetration of the offense, impels this Court to resolve in their favor the question, by holding x x
x that they were guilty of the milder form of responsibility, i.e., guilty as mere accomplices. [35]
Second Issue:

Admissibility of Extrajudicial Statement

Extrajudicial confessions must conform to constitutional requirements. Section 12, Article III of the Constitution,
provides:
(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in
the presence of counsel.
xxxxxxxxx
(3) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence
against him.
If the confession meets these requirements, it is subsequently tested for voluntariness, i.e., if it was given freely
-- without coercion, intimidation, inducement, or false promises; and credibility, i.e., if it was consistent with the
normal experience of mankind. [36]
Appellant claims that his extrajudicial statement was inadmissible, because it was not made in the presence of
counsel. Although Atty. Confesor Sansano of the Quezon City IBP Legal Aid Committee purportedly assisted him
and his co-accused in the execution of their extrajudicial Statements, appellant asserts that the lawyer was in his
office, not with them, at the time. Appellant adds that he was tortured.
Appellants claims must be rejected. Atty. Sansano testified that he did not leave them at any time.
Q: You were involved in the interrogation from the very start?
A: Yes, from the beginning to the end of the interview until the boys signed their statements.
Q: Did you recall having at any time left your office to attend to some official matters?
A: I never left the office to attend to anything.
Q: Is that the usual manner by which you assist persons referred to you by the police insofar as custodial
investigation is concerned?
A: It is our policy that when we assist [in] that capacity, we [want] to see to it that the rights of the accused or
suspects are properly [protected] during the course of the entire interrogation. [37]

In fact, Atty. Sansano even checked to see if there were torture marks on Appellant De Vera, and Garcia and
interviewed the two to make sure that they understood what they were doing.
Q: What was your purpose in asking the police officers to leave the room?
A: My purpose in asking the police officers to step out of the building was to assure myself that no pressure could
be exerted on the two boys by the presence of the police officers during my personal interview. Before we
allow any police officers to take the statements of people brought before us[,] we see to it [that] we interview
the persons personally out of hearing and sight of any police officer.
Q: After the police officers left the room, completely left the room[,] you were able to interview the two accused
namely Mr. de Vera and Mr. Garcia?
A: Yes, I spent about 15 to 20 minutes interviewing the boys.
Q: What was the nature of your initial interview with these two accused?
A: I asked the boys Roderick and Edwin if it [was] true that they [were] going to give their own statements to the
police?
Q: And what did they say?
A: They said yes, sir.
Q: What was your reaction to that?
A: Routinely[,] I informed them about their rights under the constitution.
xxxxxxxxx
Q: Having obtained their answers, what next transpired?
A: After telling them the statements they may give to the police could be used against them for a [sic] in any court
of the Phil., I was satisfied that nobody coerced them, that they were never threatened by anybody much
less by the police officers to give these statements. Casually I asked the two boys to raise their upper
clothes.
xxxxxxxxx
Q: What was your purpose in requiring these persons to show you or remove their upper clothing?
A: I wanted to assure myself that there were no telltale signs of torture or bodily harm committed on the[m] prior
to their [being brought] to the office. In spite of their [personal] assurances xxx, verbal assurance that they
were never hurt.[38]
The right to counsel is enshrined in the Constitution in order to address, among others, the use of duress and
undue influence in the execution of extrajudicial confessions. [39] In the present case, the Court is satisfied that Atty.
Sansano sufficiently fulfilled the objective of this constitutional mandate. Moreover, appellants allegations of torture
must be disregarded for being unsubstantiated. To hold otherwise is to facilitate the retraction of solemnly made
statements at the mere allegation of torture, without any proof whatsoever.
When an extrajudicial statement satisfies the requirements of the Constitution, it constitutes evidence of a high
order, because of the strong presumption that no person of normal mind would deliberately and knowingly confess
to a crime unless prompted by truth and conscience. [40] The defense has the burden of proving that it was extracted
by means of force, duress or promise of reward. [41] Appellant failed to overcome the overwhelming prosecution
evidence to the contrary.
Section 3, Rule 133 of the Rules of Court, provides that [a]n extrajudicial confession made by an accused shall
not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. In the present case, the
prosecution presented other evidence to prove the two elements of corpus delicti: (a) a certain result has been
proven for example, a man has died; and (b) some person is criminally responsible. [42] It is indubitable that a crime
has been committed, and that the other pieces of prosecution evidence clearly show that appellant had conspired
with the other accused to commit the crime. He himself does not deny that he was at the crime scene. In fact, he
was seen by the prosecution eyewitness in the company of the gunman. Furthermore, Atty. Sansano and the police

officers testified to the voluntariness of his confession. It must be stressed that the aforementioned rule merely
requires that there should be some other evidence tending to show the commission of the crime apart from the
confession. [43]
Criminal and Civil Liability

In ruling that the crime committed was murder, the trial court found that the killing was attended by treachery,
evident premeditation and abuse of superior strength. One of these was enough to qualify the crime as murder; the
two others constituted generic aggravating circumstances. The lower court explained that the evidence established
evident premeditation, for Florendos group acted with deliberate forethought and tenacious persistence in the
accomplishment of the criminal design. Treachery was also proven, because the attack was planned and performed
in such a way as to guarantee the execution of the criminal design without risk to the group. There was also abuse
of superior strength, because the attackers took advantage of their superiority in numbers and weapons.
We disagree with the court a quo in appreciating two generic aggravating circumstances, because treachery
absorbs abuse of superior strength. [44] Hence, there is only one generic aggravating circumstance, not two.
Notwithstanding the presence of a generic aggravating circumstance, we cannot impose the death penalty, because
the crime was committed before the effectivity of the Death Penalty Law.
In the present case, the penalty of appellant as an accomplice is one degree lower than that of a principal,
which in murder cases is reclusion temporal in its maximum period to death. He is also entitled to the benefits of the
Indeterminate Sentence Law.
We sustain the trial courts grant of P50,000 as indemnity ex delicto, which may be awarded without need of
proof other than the commission of the crime. The award of P211,670 as compensatory damages was duly
supported by evidence. Based on the evidence presented, moral damages is also warranted, but only in the amount
of P50,000, not P500,000 as fixed by the trial court. Furthermore, we affirm the payment of interest. [45] However, the
grant of P600,000 for loss of earning capacity lacks factual basis. Such indemnification partakes of the nature of
actual damages, which must be duly proven.[46] In this case, the trial court merely presumed the amount of
Capulongs earnings. Since the prosecution did not present evidence of the current income of the deceased, the
indemnity for lost earnings must be rejected.
WHEREFORE, the appeal is hereby partially GRANTED. Appellant De Vera is CONVICTED as an accomplice,
not as a principal, in the crime of murder. He is sentenced to an indeterminate prison term of 8 years and 1 day
of prision mayor as minimum, to 14 years 8 months and 1 day of reclusion temporal as maximum. We AFFIRM the
awards of: (a) P50,000 indemnity ex delicto, (b) P211,670 as compensatory damages and (c) interest of six percent
per annum on these two amounts. The award of moral damages is however REDUCED to P50,000 and the award
for the loss of earning capacity isDELETED. No pronouncement as to costs.
SO ORDERED.

FIRST DIVISION
[G.R. Nos. 108135-36. August 14, 2000]

POTENCIANA M. EVANGELISTA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and THE
HONORABLE SANDIGANBAYAN, (FIRST DIVISION),respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
On September 30, 1999, we rendered a Decision in this case acquitting petitioner of the charge of violation
of then Section 268 (4) of the National Internal Revenue Code [1] but affirming her conviction for violation of
Republic Act No. 3019, Section 3 (e), [2] thus imposing on her an indeterminate sentence of imprisonment for
six (6) years and one month as minimum to twelve (12) years as maximum, and the penalty of perpetual
disqualification from public office.
The basic facts are briefly restated as follows:
On September 17, 1987, Tanduay Distillery, Inc. filed with the Bureau of Internal Revenue an application for
tax credit in the amount of P180,701,682.00, for allegedly erroneous payments of ad valorem taxes from
January 1, 1986 to August 31, 1987. Tanduay claimed that it is a rectifier of alcohol and other spirits, which
per previous ruling of the BIR is only liable to pay specific taxes and not ad valorem taxes. Upon receipt of
the application, Aquilino Larin of the Specific Tax Office sent a memorandum to the Revenue Accounting
Division (RAD), headed by petitioner, requesting the said office to check and verify whether the amounts
claimed by Tanduay were actually paid to the BIR as ad valorem taxes. Larins memorandum was received
by the Revenue Administrative Section (RAS), a subordinate office of the RAD. After making the necessary
verification, the RAS prepared a certification in the form of a 1st Indorsement to the Specific Tax Office,
dated September 25, 1987, which was signed by petitioner as RAD chief.
The 1st Indorsement states that Tanduay made tax payments classified under Tax Numeric Code (TNC)
3011-0001 totalling P102,519,100.00 and payments classified under TNC 0000-0000 totalling
P78,182,582.00. Meanwhile, Teodoro Pareo, head of the Tax and Alcohol Division, certified to Justino
Galban, Jr., Head of the Compounders, Rectifiers and Repackers Section, that Tanduay was a rectifier not
liable for ad valorem tax. Pareo recommended to Larin that the application for tax credit be given due
course. Hence, Larin recommended that Tanduays claim be approved, on the basis of which Deputy
Commissioner Eufracio D. Santos signed Tax Credit Memo No. 5177 in the amount of P180,701,682.00.
Sometime thereafter, a certain Ruperto Lim wrote a letter-complaint to then BIR Commissioner Bienvenido
Tan, Jr. alleging that the grant of Tax Credit Memo No. 5177 was irregular and anomalous. Based on this,
Larin, Pareo, Galban and petitioner Evangelista were charged before the Sandiganbayan with violation of
Section 268 (4) of the National Internal Revenue Code and of Section 3 (e) of R.A. 3019, the Anti-Graft and
Corrupt Practices Act. Larin, Pareo and petitioner were later convicted of both crimes, while Galban was
acquitted inasmuch as his only participation in the processing of Tanduays application was the preparation
of the memorandum confirming that Tanduay was a rectifier.
The three accused filed separate petitions for review. Pareos and Larins petitions were consolidated and, in
a decision dated April 17, 1996, both were acquitted by this Court in Criminal Cases Nos. 14208 and 14209.
[3]
In this petition, on the other hand, we acquitted petitioner in Criminal Case No. 14208, for violation of
Section 268 (4) of the NIRC. However, we found petitioner guilty of gross negligence in issuing a certification
containing TNCs which she did not know the meaning of and which, in turn, became the basis of the
Bureaus grant of Tanduays application for tax credit. Thus, we affirmed petitioners conviction in Criminal
Case No. 14209, i.e., for violation of Section 3 (e) of the Anti-Graft and Corrupt Practices Act.
Petitioner seasonably filed a Motion for Reconsideration, [4] wherein she asserts that there was nothing false
in her certification inasmuch as she did not endorse therein approval of the application for tax credit. Rather,
her certification showed the contrary, namely, that Tanduay was not entitled to the tax credit since there was
no proof that it paid ad valorem taxes. Petitioner also claims that she was neither afforded due process nor
informed of the nature and cause of the accusation against her. She was found guilty of an offense different
from that alleged in the information; consequently, she was unable to properly defend herself from the crime
for which she was convicted.
The Information against petitioner and her co-accused in Criminal Case No. 14209 alleges in fine that they
caused undue injury to the Government and gave unwarranted benefits to Tanduay when they endorsed
approval of the claim for tax credit by preparing, signing and submitting false memoranda, certification
and/or official communications stating that Tanduay paid ad valorem taxes when it was not liable for such
because its products are distilled spirits on which specific taxes are paid, by reason of which false
memoranda, certification and/or official communications the BIR approved the application for tax credit, thus
defrauding the Government of the sum of P107,087,394.80, representing the difference between the amount

claimed as tax credit and the amount of ad valorem taxes paid by Tanduay to the BIR. [5] According to
petitioner, instead of convicting her of the acts described in the Information, she was convicted of issuing the
certification without identifying the kinds of tax for which the TNCs stand and without indicating whether
Tanduay was really entitled to tax credit or not.
The Solicitor General filed his Comment[6] wherein he joined petitioners cause and prayed that the motion for
reconsideration be granted. In hindsight, even the Solicitor Generals comment on the petition consisted of a
"Manifestation and Motion in lieu of Comment,"[7] where he recommended that petitioner be acquitted of the
two charges against her.
We find that the Motion for Reconsideration is well-taken.
After a careful re-examination of the records of this case, it would appear that the certification made by
petitioner in her 1st Indorsement was not favorable to Tanduays application for tax credit. Far from it,
petitioners certification meant that there were no payments of ad valorem taxes by Tanduay in the records
and hence, it was not entitled to tax credit. In other words, the certification was against the grant of
Tanduays application for tax credit.
It has been established that the BIR adopted tax numeric codes (TNCs) to classify taxes according to their
kinds and rates, in order to facilitate the preparation of statistical and other management reports, the
improvement of revenue accounting and the production of tax data essential to management planning and
decision-making. These codes include TNC No. 3011-0001 for specific tax on domestic distilled spirits, TNC
No. 3023-2001 for ad valorem tax on compounded liquors, and TNC No. 0000-0000 for unclassified taxes.
Petitioners 1st Indorsement dated September 25, 1987 lists down the confirmation receipts covering tax
payments by Tanduay for the period January 1, 1986 to August 31, 1987, during which Tanduay alleges that
it made erroneous ad valorem tax payments, classified according to TNC numbers. The tax payments
therein are described only as falling under TNC No. 3011-0001, i.e., specific tax, and TNC No. 00000000, i.e., unclassified taxes. There are no tax payments classified as falling under TNC No. 3023-2001, the
code for ad valorem taxes. The import of this, simply, is that Tanduay did not make any ad valorem tax
payments during the said period and is, therefore, not entitled to any tax credit.
Further, petitioner contends that she was convicted of a supposed crime not punishable by law. [8] She was
charged with violation of Section 3 (e) of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act,
which states:
SEC. 3. Corrupt practices of public officers. --- In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:
xxx..................................xxx..................................xxx.
(e)....Causing any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official, judicial or
administrative functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other concessions.
xxx..................................xxx..................................xxx.
The elements of the offense are: (1) that the accused are public officers or private persons charged in
conspiracy with them; (2) that said public officers commit the prohibited acts during the performance of their
official duties or in relation to their public positions; (3) that they cause undue injury to any party, whether the
Government or a private party; (4) that such injury is caused by giving unwarranted benefits, advantage or
preference to such parties; and (5) that the public officers have acted with manifest partiality, evident bad
faith or gross inexcusable negligence.[9]
R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its elements that the public officer
should have acted by causing any undue injury to any party, including the Government, or by giving any
private party unwarranted benefits, advantage or preference in the discharge of his functions. The use of the
disjunctive term "or" connotes that either act qualifies as a violation of Section 3, paragraph (e), or as aptly
held in Santiago,[10] as two (2) different modes of committing the offense. This does not however indicate that
each mode constitutes a distinct offense, but rather, that an accused may be charged under either mode or
under both.[11]

In the instant case, we find that petitioner, in issuing the certification, did not cause any undue injury to the
Government. She also did not give unwarranted benefits, advantage or preference to Tanduay. Neither did
petitioner display manifest partiality to Tanduay nor act with evident bad faith or gross inexcusable
negligence. Quite the contrary, petitioners certification was against the interest of Tanduay. It did not
advocate the grant of its application for tax credit. The certification can even be read as a recommendation
of denial of the application.
Petitioner further argues that her conviction was merely based on her alleged failure to identify with certainty
in her certification the kinds of taxes paid by Tanduay and to indicate what the TNCs stand for, which acts
were different from those described in the Information under which she was charged. This, she claims,
violated her constitutional right to due process and to be informed of the nature and cause of the accusation
against her.
It is well-settled that an accused cannot be convicted of an offense unless it is clearly charged in the
complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the
accusation against him. To convict him of an offense other than that charged in the complaint or information
would be a violation of this constitutional right.[12]In the case at bar, we find merit in petitioners contention
that the acts for which she was convicted are different from those alleged in the Information. More
importantly, as we have discussed above, petitioners act of issuing the certification did not constitute corrupt
practices as defined in Section 3 (e) of R.A. 3019.
Employees of the BIR were expected to know what the TNCs stand for. If they do not, there is a "Handbook
of Tax Numeric Code of Revenue Sources" which they can consult. With this, petitioner should not be
required to describe in words the kinds of tax for which each TNC used stands for. Precisely, the purpose of
introducing the use of tax numeric codes in the Bureau was to do away with these descriptive words, in
order to expedite and facilitate communications among the different divisions therein. We find that petitioners
omission to indicate what kind of taxes TNC Nos. 3011-0001 and 0000-0000 stand for was not a criminal
act. Applicable here is the familiar maxim in criminal law: Nullum crimen nulla poena sine lege. There is no
crime where there is no law punishing it.
On the whole, therefore, we find that petitioner was not guilty of any criminal offense. The prosecutions
evidence failed to establish that petitioner committed the acts described in the Information which constitute
corrupt practices. Her conviction must, therefore, be set aside. For conviction must rest no less than on hard
evidence showing that the accused, with moral certainty, is guilty of the crime charged. Short of these
constitutional mandate and statutory safeguard --- that a person is presumed innocent until the contrary is
proved --- the Court is then left without discretion and is duty bound to render a judgment of acquittal. [13]
WHEREFORE, the Motion for Reconsideration is GRANTED. This Courts Decision dated September 30,
1999 is RECONSIDERED and SET ASIDE. Petitioner is ACQUITTED of the charge against her.
SO ORDERED.