Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. L-66401-03

February 13, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FRANCISCO MARTINADA, BONIFACIO MESIAS, BONDOY
MORATO, and TWO JOHN DOES, defendants.
FRANCISCO MARTINADA and BONIFACIO
MESIAS, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Francis H. Jardeleza for defendants-appellants.
PARAS, J.:
This is a mandatory review of the decision of the Regional Trial
Court, Branch XV at Palo, Leyte in Criminal Cases Nos. BN-1886,
BN 1886-A and BN-1886-B.
In three separate informations, appellants Francisco Martinada
and Bonifacio Mesias, together with one Bondoy Maroto and two
John Does were all charged with (a) qualified theft of large cattle
or cattle rustling; (b) illegal possession of firearms and (c)
frustrated murder.
The trial court, after joint trial, found the appellants guilty as
charged and sentenced them accordingly, as follows:
WHEREFORE, judgment is hereby rendered, finding the two
accused, Francisco Martinada and Bonifacio Mesias, GUILTY
beyond doubt of Qualified Theft of Large Cattle as charged
in the information (Criminal Case No. BN-1886) with the
aggravating circumstances of Recidivism and by a band,
and as provided for in P.D. No. 533, otherwise known as the
ANTI-CATTLE RUSTLING LAW of 1974, hereby sentences
both accused to the Maximum Penalty of DEATH, to
indemnify the Spouses Alejandro Naboya and Segundina

Elias the sum of P 2,500.00 without subsidiary

imprisonment in case of insolvency and for each to pay
one-half (1/2) of the costs.
WHEREFORE, judgment is hereby rendered, finding the two
accused Francisco Martinada and Bonifacio Mesias, GUILTY
beyond reasonable doubt of Illegal Possession of Firearms
as charged in the Information (in Criminal Case No. BN1886-A) and hereby sentences both accused to an
indeterminate penalty of not less the FIVE (5) years
of Prision Correccional as Minimum to not more than TEN
(10) YEARS of Prision Mayor as Maximum, and for each to
pay one-half (1/2) of the costs.
WHEREFORE, judgment is hereby rendered, finding the two
accused, Francisco Martinada and Bonifacio Mesias, GUILTY
beyond reasonable doubt of the crime of Frustrated Murder
as charged in the Information (in Criminal Case No. BN1886-B) with the qualifying circumstance of treachery and
hereby sentences both accused to an indeterminate
penalty of not less than SIX (6) YEARS and ONE (1) DAY
of Prision Mayor as Maximum to not more than TWELVE
(12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS
of Reclusion Temporal as Maximum and each to pay onehalf (1/2) of the costs. (pp. 18-19, Rollo)
Accused Bondoy Maroto was not arrested and is still at large. Even
as the death penalty was meted out only in Criminal Case No.
1886 for cattle rustling, appellants still filed their brief with this
Court in all three criminal cases since the crimes were committed
on the same occasion, the factual allegations in the three cases
are intertwined and they were heard jointly.
It appears that at about midnight of February 13, 1982, Segundina
Naboya was awakened by the barking of their dog; that her
husband Alejandro, herein victim, descended from their house
after having been awakened by a gun report; that at about the
same time, Pascual Naboya, brother of Alejandro Naboya who was
residing about 50 meters away from the latter's house, also heard
the barking of the dog; that Pascual stepped down from his house
to verify why the dog was barking, whereupon, he heard a gun
burst which made him walk towards Alejandro's house armed with
a bolo; that he heard a second shot and then saw Alejandro

already lying on. the ground; that the victim was hit at the neck;
that Segundina recognized Mesias and Martinada as the
assailants; that Pascual Naboya also recognized Martinada, Mesias
and Maroto as the culprits; that after Alejandro was shot,
appellant Martinada untied the carabao and the latter and his
companions took the carabao away; and that the victim's wound
required seven to nine days to heal.
Appellants impute these errors to the trial court:
1. The trial court erred in ruling that the guilt of appellants
Martinada and Mesias was proven beyond reasonable
doubt.
2. The trial court erred in incorporating into the record and
making as part of its decision the unsolicited fact of the
alleged previous convictions for qualified theft of large
cattle and illegal possession of firearms of appellants
Martinada and Mesias, and thus violated their constitutional
right to be informed of the cause and nature of the
accusation against them and to a fair and just trial before a
neutral and objective judge.
3. The trial court erred in holding that the shooting of
Alejandro Naboya was attended by treachery and in not
ruling that the crime committed was at most attempted
homicide.
In their attempt to impeach prosecution witnesses Segundina
Naboya, Alejandro Naboya and Pascual Naboya, appellants have
actually assailed the credibility of these witnesses for the purpose
of destroying the latter's positive Identification of said appellants.
Appellants seem to forget the moth-eaten fundamental principle
that the findings of the lower court which had the best opportunity
to hear and observe the witnesses testify and to weigh their
testimonies are given the highest respect and recognition by the
appellate court.
This Court has thus held in the case of People v. Trigo, No. 76515,
June 14, 1989 (174 SCRA 93) that on the matter of witnesses'
credibility, appellate courts give weight and the highest degree of
respect to trial courts' findings in criminal prosecution, because

the latter are in a better position to decide the question, having

heard the witnesses themselves and observed their deportment
and manner of testifying during the trial.
Thus, too, in the case of Matabuena v. Court of Appeals, No.
76542, May 5, 1989 (173 SCRA 170), this Court ruled that absent
any substantial proof that the trial court's decision was grounded
entirely on speculations, surmises or conjectures, the same must
be accorded full consideration and respect. This should be so
because the trial court is, after all, in a much better position to
observe and correctly appreciate the respective parties' evidence
as they were presented.
On the alleged inconsistencies in the declarations of the
prosecution witnesses, this Court sustains the submission of the
Solicitor General that they are very minor and insignificant and do
not in any way alter the fact that Alejandro was shot by the
appellants and that the carabao was stolen.
Significantly, this Court has repeatedly declared that
inconsistencies of witnesses on minor details do not detract from
the positiveness of the identification of appellants (People vs.
Alvarez, No. 70446, Jan. 31, 1989); that minor inconsistencies do
not affect the witness' credibility; that they strengthen rather than
weaken the witness' credibility (Medios vs. Court of Appeals, No.
79570, Jan. 31, 1989); and, that contradiction in the testimonies of
witnesses instead of suggesting prevarication, indicates veracity,
thereby bolstering the probative value of the testimonies as a
whole (Ebajon vs. Court of Appeals, Nos. 77930-31, Feb. 9, 1989).
With respect to the alleged delay or failure of witnesses Segundina
Naboya and Pascual Naboya to immediately report the identity of
the assailants, this Court finds such delayed reporting to have
been sufficiently explained.
It should be noted that appellants never refuted, and even
conceded the veracity of the sworn statement of Segundina
executed on February 25, 1982 wherein she explained that it took
her twelve days to report the identity of the perpetrators of the
crime because she was so busy attending to her husband
Alejandro who was then confined in the hospital. Even on crossexamination, she confirmed her declarations in the aforesaid

sworn statement. This Court takes note of the fact that appellant
Mesias adopted the said sworn statement as part of his evidence.

motivated by a distinct and independent reason for the delayed

reporting.

Emphatically also, as per Dr. Bugho's testimony, Alejandro's

wound was fatal since it could have caused the latter's death had
it not been for the timely medical intervention or treatment
administered to the victim. Needless to say, for a wife whose
husband was in imminent danger of dying, the natural and
instinctive reaction was for the wife to be by her husband's side
and to give her utmost care and attention in the effort to save his
life. All other things like the reporting of the assailants' identity
can be set aside; what mattered most was her husband's survival.
Hence, the moment Alejandro was pronounced out of danger,
Segundina immediately went to the police to execute her sworn
statement.

Whether the barking of the dog or the gun report awakened

Segundina and Pascual is another matter where the alleged
inconsistencies or variations in the declarations of the witnesses
should be considered petty so as to affect substantially the weight
of their testimony. whether it was the barking of the dog or the
gunshot which jolted Segundina, Alejandro and Pascual from their
sleep would not really matter; what is important is that they were
all awakened by something unusual in the middle of the night and
the cause was the presence of armed men within the premises.
Note also that the declarations of Segundina and Pascual that the
barking of the dog woke them up are corroborative. Possibly,
Alejandro was sleeping so deeply that he did not hear the dog's
bark but when a gunshot rang, the loud impact awakened him.

Notably, this Court has reiterated the well-entrenched

pronouncement that delay of witnesses in informing others of
what they know about a criminal offense will not affect their
credibility, where delay is satisfactorily explained. (People vs.
Andres, No. 75355; 155 SCRA 290) Likewise, in the case of People
vs. Pacabes, 137 SCRA 158, the Court held that it is not
uncommon for a witness to a crime to show some reluctance
about getting involved in a criminal case. Indeed, the natural
reticence of most people to get involved in a criminal case is of
judicial notice.
Very much in point is the case of People vs. Molato, No. 66634,
Feb. 27, 1989; 170 SCRA 640, where this Court declared that there
is no reason to doubt the widow's testimony as she was able to
positively identify the assailant as the accused through the
flashlight that her husband beamed at appellant even as the latter
flashed his light at the victim. The place was illuminated by the
flashlights of the two so that it is not impossible for the widow to
recognize the appellant and his companion from a mere distance
of four meters nor the other witness to identify the two assailants.
The belated reporting of witness Pascual Naboya does not
contradict the aforestated explanation of Segundina because the
former acted independently of the latter's course of action and he
did not so for a different reason-because of fear. This simply shows
that both witnesses made their separate reports without prior
consultation or arrangement with each other. Clearly, each was

Another alleged trivial discrepancy is the place or location where

Alejandro was shot. While Segundina stated that Alejandro was
shot on the ground about eight meters from her, the latter
declared that he was hit inside his house at a distance of about
two meters from Segundina. Whether or not the victim was shot
while in the house or on the ground is again insignificant and such
minor inconsistency would not and did not alter the fact that
Alejandro was fired upon by the assailants from which he suffered
a fatal wound. This discrepancy all the more proves that Alejandro
and Segundina were not coached nor rehearsed in order to give a
consistent testimony. The fact that their statements varied proves
that they were telling the truth and the same were not a
concoction as would have been normally expected of husband and
wife.
Thus, in a long line of cases this Court has ruled that alleged
contradictions and inconsistencies pointed out by the accused in
the testimony of prosecution witnesses relating to minor details do
not destroy the credibility of witnesses. On the contrary, they
indicate that said witnesses were telling the truth and not
previously rehearsed.
Appellant's claim that Alejandro should have been in an equal
position and opportunity (as Segundina) to recognize appellant
Martinada is inaccurate considering that when the victim was
going down the house, a flashlight was beamed at his face which

had the effect of blinding him temporarily. However,, in a moonlit

night and within a distance of a few meters, both Segundina and
Pascual positively identified the appellants.
Notably, appellants' defense of alibi has not been substantiated
because their alibis were never supported by any witness nor
even by their own family members whom they were allegedly with
that evening when the offenses were committed. This Court has
consistently held that alibi cannot prevail over positive
identification of prosecution witnesses and that alibi to be given
full faith and credit must be clearly established and must not
leave any doubt as to its plausibility and verity. (People vs.
Serante, L-46724, 52 SCRA 525).
The contention of appellants that the trial court should not have
considered the aggravating circumstance of recidivism since said
circumstance was not alleged in the information nor copies of
previous sentences rendered against the accused were presented
at the trial is not altogether correct. While it is true that to prove
recividism, it is necessary to allege the same in the information
and to attach thereto certified copies of the sentences rendered
against the accused, such aggravating circumstance may still be
given credence by the trial court if the accused does not object to
the presentation of evidence on the fact of recidivism.
The records reveal that during the trial, the lower court made
sufficient reference to the previous cases when it declared that
appellant Martinada had been convicted and sentenced to fifty
eight years of imprisonment for four cases of qualified theft of
large cattle for illegal possession of firearm; and, that such
sentence has become final and executory.
Evidently, appellants never objected to the reference to the
previous cases, nor did they deny that they were the same
persons convicted in said cases. The referral made by the trial
court should be relied upon because, after all, the records of prior
cases are part of the court records which could be verified and
produced readily.
In the case of People vs. Monteverde (142 SCRA 668), this Court
declared that the trial court properly appreciated recidivism as an
aggravating circumstance although not alleged in the information
because the same was proved by evidence.

With regard to the shooting of Alejandro Naboya, this incident

should have been considered by the trial court as a qualifying
aggravating circumstance to the crime of cattle rustling. Since the
information did not allege the fact of Alejandro's injury, the same
can no longer be appreciated in the case of cattle rustling. The
appellants therefore can be held guilty under Criminal Case No.
1886 only of simple cattle rustling, with the aggravating
circumstance of recidivism.
It goes without saying that the trial court should not have
convicted accused Martinada and Mesias of the came of
Frustrated Murder since this crime should have been absorbed in
the crime of cattle rustling, thereby qualifying the latter.
Section 8 of P.D. No. 533, otherwise known as Anti-Cattle
Rustling Law of 1974, provides, to wit:
Sec. 8. Penal provisions. Any person convicted of cattle
rustling as herein defined shall, irrespective of the value of
the large cattle involved, be punished by prision mayor in
its maximum period to reclusion temporal in its medium
period of the offense is committed without violence against
or intimidation of persons or force upon things. If the
offense is committed with violence against or intimidation
of person or force upon things, the penalty of reclusion
temporal in its maximum period to reclusion perpetua shall
be imposed. If a person is seriously injured or killed as a
result or on the occasion of the commission of cattle
rustling, the penalty of reclusion perpetua to death shall be
imposed. . . . (pp. 12-13, decision)
The circumstances of "committed with violence against or
intimidation of persons or force upon things and a person was
seriously injured or killed as a result or on the occasion of the
commission of cattling rustling" are no
doubt qualifying aggravating circumstances as they "not only give
the clime committed its proper and exclusive name but also place
the author thereof in such a situation as to deserve no other
penalty than that especially prescribed for said crime. (People v.
Bayot, 64 Phil. 269,273 [1973]) (p. 13, decision) Thus, the trial
court could no longer convict separately accused Martinada and
Mesias of the crime of Frustrated Murder, otherwise there would
be double jeopardy.

This Court finds merit in the submission of the Solicitor General

that graduation of penalties as determined by the presence of
aggravating and mitigating circumstances still applies. The
Solicitor General thus justifies his contention:

Republic of the Philippines

Supreme Court
Manila

P.D. No 533, in the context of Article 10 of the Revised

Penal Code, which reads, to wit:
Art. 10. Offenses not subject to the provisions of this Code.
Offenses which are or in the future may be punishable
under special laws are not subject to the provisions of this
Code. This Code shall be supplementary to such laws,
unless the latter should specially provide the contrary.
which provision is the basis of the principle relied upon by
the appellants, as enunciated in the cited case ofPeople v.
Respecio, 107 Phil. 995, 996, [1960], is not a special law.
As will be noted, P.D. No. 553 merely modified the penalties
provided for qualified theft of large cattle under Article 310
of the Revised Penal Code, imposing stiffer penalties
thereon under special circumstances. In other words, P.D.
No. 553, served only the purpose of amending Articles 309
and 310 of the Revised Penal Code. This is explicit under
Section 10 of the said Decree, to wit:
Sec. 10. Repealing clause. The provisions of
Article 309 and 310 of Act No. 3815, otherwise
known as the Revised Penal Code, as amended, . . .
which are inconsistent with this Decree are thereby
repealed or modified accordingly. (p. 121, Rollo)
WHEREFORE, for the offense of simple cattle rustling with the
aggravating circumstance of recividism, and applying the
Indeterminate Sentence Law the appellants are hereby sentenced
to 4 years, 2 months and 1 day ofPrision Correccional as minimum
to 14 years, 8 months and 1 day of Reclusion Temporal as
maximum and for the crime of illegal possession of firearms, they
are hereby sentenced to Five (5) Years of Prision Correccional as
minimum to Ten (10) years of Prision Mayor as maximum.

THIRD DIVISION
SHARICA MARI L. GO-TAN
Petitioner,

G.R. No. 168852

Present:

YNARES-SANTIAGO, J
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

- versus -

SPOUSES PERFECTO C. TAN

and JUANITA L. TAN,
Promulgated:
*
Respondents.
September 30, 2008
x---------------------------------------------------------x
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45
of the Rules of Court assailing the Resolution[1] dated March 7,
2005 of the Regional Trial Court (RTC), Branch 94, QuezonCity in Civil
Case No. Q-05-54536 and the RTC Resolution[2] dated July 11,
2005 which denied petitioner's Verified Motion for Reconsideration.
The factual background of the case:

On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and Steven L.

No.

9262

under

the

well-known

Tan (Steven) were married.[3] Out of this union, two female children

law expressio unius est exclusio alterius.[13]

rule

of

were born, Kyra Danielle[4] and Kristen Denise.[5] OnJanuary 12, 2005,
barely six years into the marriage, petitioner filed a Petition with

On March 16, 2005, petitioner filed her Verified Motion for

Prayer for the Issuance of a Temporary Protective Order (TPO)

Reconsideration[14] contending

[6]

implication should be applied in the broader interests of substantial

against Steven and her parents-in-law, Spouses Perfecto C. Tan and

Juanita L. Tan (respondents) before the RTC. She alleged that Steven,

that

the

doctrine

of

necessary

justice and due process.

in conspiracy with respondents, were causing verbal, psychological

and economic abuses upon her in violation of Section 5, paragraphs

On April 8, 2005, respondents filed their Comment on the Verified

(e)(2)(3)(4), (h)(5), and (i)[7] of Republic Act (R.A.) No. 9262,

Motion

[8]

construction unduly broadened the provisions of R.A. No. 9262 since

otherwise known as the Anti-Violence Against Women and Their

Children Act of 2004.

for

Reconsideration[15] arguing

that

petitioner's

liberal

the relationship between the offender and the alleged victim was an
essential condition for the application of R.A. No. 9262.

On January 25, 2005, the RTC issued an Order/Notice[9] granting

On July 11, 2005, the RTC issued a Resolution[16] denying petitioner'

petitioner's prayer for a TPO.

s
On February 7, 2005, respondents filed a Motion to Dismiss with

Verified Motion for Reconsideration. The RTC reasoned that to include

Opposition

respondents under the coverage of R.A. No. 9262 would be a strained

to

the

Issuance

of

Permanent

Order Ad Cautelam and Comment on the Petition,

[10]

Protection

contending that

interpretation of the provisions of the law.

the RTC lacked jurisdiction over their persons since, as parents-in-law

of the petitioner, they were not covered by R.A. No. 9262.
On February 28, 2005, petitioner filed a Comment on Opposition[11] to
respondents' Motion to Dismiss arguing that respondents were
covered by R.A. No. 9262 under a liberal interpretation thereof aimed
at promoting the protection and safety of victims of violence.
On March 7, 2005, the RTC issued a Resolution[12] dismissing the case
as to respondents on the ground that, being the parents-in-law of the
petitioner, they were not included/covered as respondents under R.A.

Hence, the present petition on a pure question of law, to wit:

WHETHER
OR
NOT
RESPONDENTS-SPOUSES
PERFECTO & JUANITA, PARENTS-IN-LAW OF SHARICA,
MAY BE INCLUDED IN THE PETITION FOR THE
ISSUANCE OF A PROTECTIVE ORDER, IN ACCORDANCE
WITH REPUBLIC ACT NO. 9262, OTHERWISE KNOWN
AS THE ANTI-VIOLENCE AGAINST WOMEN AND THEIR
CHILDREN ACT OF 2004.[17]
Petitioner contends that R.A. No. 9262 must be understood in the
light of the provisions of Section 47 of R.A. No. 9262 which explicitly

provides for the suppletory application of the Revised Penal Code

(RPC) and, accordingly, the provision on conspiracy under Article 8 of

While the said provision provides that the offender be related or

the RPC can be suppletorily applied to R.A. No. 9262; that Steven and

connected to the victim by marriage, former marriage, or a sexual or

respondents had community of design and purpose in tormenting her

dating relationship, it does not preclude the application of the

by giving her insufficient financial support; harassing and pressuring

principle of conspiracy under the RPC.

her to be ejected from the family home; and in repeatedly abusing

her verbally, emotionally, mentally and physically; that respondents

Indeed, Section 47 of R.A. No. 9262 expressly provides for

should be included as indispensable or necessary parties for

the suppletory application of the RPC, thus:

complete resolution of the case.

On the other hand, respondents submit that they are not covered by
R.A. No. 9262 since Section 3 thereof explicitly provides that the
offender should be related to the victim only by marriage, a former
marriage, or a dating or sexual relationship; that allegations on the

SEC. 47. Suppletory Application. - For purposes

of this Act, the Revised Penal Code and other
applicable laws, shall
have suppletory application. (Emphasis supplied)
Parenthetically, Article 10 of the RPC provides:

conspiracy of respondents require a factual determination which

cannot be done by this Court in a petition for review; that
respondents cannot be characterized as indispensable or necessary
parties, since their presence in the case is not only unnecessary but
altogether illegal, considering the non-inclusion of in-laws as
offenders under Section 3 of R.A. No. 9262.

ART. 10. Offenses not subject to the provisions

of this Code. Offenses which are or in the future may
be punishable under special laws are not subject to the
provisions of this Code. This Code shall be
supplementary to such laws, unless the latter
should specially provide the contrary. (Emphasis
supplied)

The Court rules in favor of the petitioner.

Hence, legal principles developed from the Penal Code may be

Section 3 of R.A. No. 9262 defines ''[v]iolence against women and

applied in a supplementary capacity to crimes punished under

their children'' as any act or a series of acts committed by any person

special laws, such as R.A. No. 9262, in which the special law is silent

against a woman who is his wife, former wife, or against a woman

on a particular matter.

with whom the person has or had a sexual or dating relationship, or

with whom he has a common child, or against her child whether

Thus, in People v. Moreno,[18] the Court applied suppletorily the

legitimate or illegitimate, within or without the family abode, which

provision on subsidiary penalty under Article 39 of the RPC to cases

result in or is likely to result in physical, sexual, psychological harm or

of violations of Act No. 3992, otherwise known as the Revised Motor

suffering, or economic abuse including threats of such acts, battery,

Vehicle Law, noting that the special law did not contain any provision

assault, coercion, harassment or arbitrary deprivation of liberty.

that the defendant could be sentenced with subsidiary imprisonment

which by their nature, are necessarily applicable, may be

in case of insolvency.

applied suppletorily.

In People v. Li Wai Cheung,

[19]

the Court applied suppletorily the

rules on the service of sentences provided in Article 70 of the RPC in

Thus, the principle of conspiracy may be applied to R.A. No. 9262. For

favor of the accused who was found guilty of multiple violations of

once conspiracy or action in concert to achieve a criminal design is

R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972,

shown, the act of one is the act of all the conspirators, and the

considering the lack of similar rules under the special law.

precise extent or modality of participation of each of them becomes

secondary, since all the conspirators are principals.[23]

In People v. Chowdury,[20] the Court applied suppletorily Articles 17,

18 and 19 of the RPC to define the words principal, accomplices and

It must be further noted that Section 5 of R.A. No. 9262 expressly

accessories under R.A. No. 8042, otherwise known as the Migrant

recognizes that the acts of violence against women and their children

Workers and Overseas Filipinos Act of 1995, because said words were

may be committed by an offender through another, thus:

not defined therein, although the special law referred to the same
terms in enumerating the persons liable for the crime of illegal
recruitment.
In Yu v. People,[21] the Court applied suppletorily the provisions on
subsidiary

imprisonment

under

to Batas Pambansa (B.P.) Blg.

22,

Article

39

otherwise

of

the

RPC

known

as

the BouncingChecks Law, noting the absence of an express provision

on subsidiary imprisonment in said special law.
Most

recently,

in Ladonga v. People,

[22]

the

Court

applied suppletorily the principle of conspiracy under Article 8 of the

SEC. 5. Acts of Violence Against Women and Their

Children. - The crime of violence against women and
their children is committed through any of the following
acts:
xxx
(h) Engaging in purposeful, knowing, or reckless
conduct, personally or through another, that alarms
or causes substantial emotional or psychological
distress to the woman or her child. This shall include,
but not be limited to, the following acts:
(1) Stalking or following the woman or her child in
public or private places;

RPC to B.P. Blg. 22 in the absence of a contrary provision therein.

(2) Peering in the window or lingering outside the

residence of the woman or her child;

With more reason, therefore, the principle of conspiracy under Article

(3) Entering or remaining in the dwelling or on the

property of the woman or her child against her/his will;

8 of the RPC may be applied suppletorily to R.A. No. 9262 because of

the express provision of Section 47 that the RPC shall be
supplementary to said law. Thus, general provisions of the RPC,

(4) Destroying the property and personal belongings or

inflicting harm to animals or pets of the woman or her
child; and

(5) Engaging in any form of harassment or violence;

x x x. (Emphasis supplied)

Thus,

contrary

to

the RTC's pronouncement,

maxim "expressio unios est exclusio alterius finds

no

the

application

In addition, the protection order that may be issued for the purpose

here. It must be remembered that this maxim is only an ancillary rule

of

of statutory construction. It is not of universal application. Neither is it

preventing further acts of violence

against the

woman or her

child may include

conclusive. It should be applied only as a means of discovering

individuals other than the offending husband, thus:

SEC. 8. Protection Orders. x x x The protection orders
that may be issued under this Act shall include any,
some or all of the following reliefs:

legislative intent which is not otherwise manifest and should not be

(a) Prohibition of the respondent from threatening to

commit or committing, personally or through
another, any of the acts mentioned in Section 5 of this
Act;
(b) Prohibition of the respondent from harassing,
annoying, telephoning, contacting or otherwise
communicating
with
the
petitioner,
directly
or indirectly; x x x (Emphasis supplied)
Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the
law, thus:

The Court notes that petitioner unnecessarily argues at great length

on the attendance of circumstances evidencing the conspiracy or
connivance of Steven and respondents to cause verbal, psychological
and

economic

abuses

upon

her. However,

conspiracy

is

an evidentiary matter which should be threshed out in a full-blown

trial on the merits and cannot be determined in the present petition
since this Court is not a trier of facts.[26] It is thus premature for
petitioner to argue evidentiary matters since this controversy is
centered only on the determination of whether respondents may be
included in a petition under R.A. No. 9262. The presence or absence
of conspiracy can be best passed upon after a trial on the merits.

SEC. 4. Construction. - This Act shall be liberally

construed to promote the protection and safety of
victims of violence against women and their children.
(Emphasis supplied)
It bears mention that the intent of the statute is the law

permitted to defeat the plainly indicated purpose of the legislature.[25]

[24]

and that

this intent must be effectuated by the courts. In the present case, the

Considering the Court's ruling that the principle of conspiracy

may be applied suppletorily to R.A. No. 9262, the Court will no longer
delve on whether respondents may be considered indispensable or
necessary parties. To do so would be an exercise in superfluity.

express language of R.A. No. 9262 reflects the intent of the

legislature for liberal construction as will best ensure the attainment

WHEREFORE, the instant petition is GRANTED. The assailed

of the object of the law according to its true intent, meaning and spirit

Resolutions dated March 7, 2005 and July 11, 2005 of the Regional

- the protection and safety of victims of violence against women and

Trial Court, Branch 94,

children.

FIRST DIVISION
G.R. No. 99838. October 23, 1997]
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs. ERNESTO ENRIQUEZ y ROSALES and WILFREDO
ROSALES y YUCOT, accused-appellants.
DECISION
VITUG, J.:
Ernesto Enriquez y Rosales and Wilfredo Rosales y Yucot
were charged with having violated Section 4, Article II, of
Republic Act ("R.A.") No. 6425 (Dangerous Drugs Act of 1972),
as amended, in an information that read:
That on or about June 5, 1990, in the City of Manila, Philippines,
the said accused, conspiring and confederating together and
mutually helping each other, not being authorized by law to
sell, deliver, give away to another or distribute any prohibited
drug, did then and there wilfully and unlawfully sell or offer for
sale six (6) kgrms of dried flowering tops of marijuana stuffed
in a plastic sack, which is a prohibited drug.
"Contrary to law.[1]
The antecedent facts leading to the filing of the
information, according to the prosecution, are hereunder
narrated.
At around eleven oclock in the morning of 05 June 1990,
Sgt. Pedro I. Cerrillo, Jr., the Officer-in-Charge of the Intelligence
and Drug Law Enforcement Unit of Police Station No. 2 (located
in Tondo, Manila) of the Western Police District, was in the
vicinity of North Harbor routinely scouting for information from
his civilian informants. Near the gate fronting Pier 10, Danny, a
porter and member of the Anti-Drug Abuse Movement
("ADAM"), approached and informed Sgt. Cerrillo that a freelance porter at the North Harbor, a.k.a. Bulag, was looking for
prospective buyers of marijuana. Sgt. Cerrillo instructed Danny
to say that he had come across a couple who would be

interested in buying the prohibited drug. Sgt. Cerrillo had then

in mind a possible buy-bust operation.
The buy-bust plan was broached to Patrolwoman Shirley
Maramot who was manning Police Station No. 2. Fellow police
officers were at the time on duty at the U.S. Embassy where a
"rally" by certain activists was in progress. Using his own
owner-type jeep, Sgt. Cerrillo repaired to his house at 727
Moriones St., Tondo, Manila, to procure ten (10) pieces of one
hundred peso bills[2] to be used in the projected buy-bust
operation.[3] He thereupon had, at a store near the police
station, xerox copies made of the bills that can readily show
the serial numbers which he had also noted down in his
personal notebook.[4]
Back at the police station, Sgt. Cerrillo handed the buy-bust
money to Pat. Maramot. Since there were no other "operatives"
at the station available for the operation, Sgt. Cerrillo sought
the assistance of ADAM members Joseph Mendoza, Amado
Betita and Alex Trinidad. The team, including "Danny," were
briefed by Sgt. Cerrillo. The plan called for Pat. Maramot and
Mendoza to pose as the couple interested in buying marijuana
and for Trinidad, Betita and Sgt. Cerrillo to act as the "back-up"
men. Pat. Maramot was to nod her head as soon as the sale
was consummated.[5]
At about 11:35 a.m., the group, using two vehicles,
proceeded to the vicinity of Pier 10 at the North Harbor. At the
corner of Moriones Street and Radial Road 10, Pat. Maramot
and Mendoza sat on a bench by a store to wait for the return of
Danny, who had meanwhile left to fetch Bulag, while Sgt.
Cerrillo, Trinidad and Betita strategically positioned themselves
at a billiard hall, mingling with spectators and pretending to be
bystanders. The billiard hall was only about ten meters away
from Pat. Maramots group, and it afforded a good view of the
place.[6]
Moments later, Danny arrived with accused Wilfredo
Rosales, a.k.a. Bulag. Rosales talked with the poseurbuyers. After about five minutes, the poseur-buyers, Rosales
and the informant entered an alley, walking along shanties,
until they reached a house numbered 1349.

A half-naked man in green shorts emerged from one of the

doors of the house. The man, later identified to be accused
Ernesto Enriquez, a.k.a. Nene, asked Pat. Maramot in Visayan
accent, Dala mo ba ang pera? Pat. Maramot took out from her
pocket the bundle of the marked money and showed it to
Enriquez. The latter allowed Maramots group to enter the
house.[7]Minutes later, as so pre-arranged, Sgt. Cerrillo followed
and proceeded to house No. 1349. Finding the door closed, he
went around the house. Sgt. Cerrillo saw Pat. Maramot,
Mendoza and the informant exit through the back
door. Rosales, carrying a plastic bag, was with them. Again,
Sgt. Cerrillos group followed Pat. Maramot and Rosales until the
latter reached a nearby waiting shed for jeepney
passengers. At this point, Pat. Maramot announced that she
was a policewoman. Sgt. Cerrillo held Rosales and took his
bag. Sgt. Cerrillo opened the sack, and inside it was another
sack containing marijuana wrapped in plastic.
The group hurriedly returned to house No. 1349 only to find
that Enriquez had by then left the premises. The team boarded
the police service jeep and moved on to Kagitingan Street at
the Lakandula detachment. Sgt. Cerrillo interviewed
Rosales. Upon being informed that Enriquez would usually visit
the Pier 10 area, Sgt. Cerrillo proceeded to the place. After
scouring the area, a security guard supervisor at the pier, who
accompanied the group, spotted Enriquez walking near the
pier. Sgt. Cerrillo picked up Enriquez and brought him to the
Lakandula detachment for investigation. Later, Minda, the wife
of Enriquez, arrived. Someone, at the request of Enriquez, had
fetched her to "bring the money." Enriquez told her to return
the amount to Sgt. Cerrillo. She took out from her wallet its
contents three of which were the 100-peso marked bills.
[8]
Minda became hysterical. She embraced Sgt. Cerrillo and
begged him to forgive her husband. Sgt. Cerrillo told her to
instead see the station commander. [9]
Sgt. Cerrillo apprised Enriquez and Rosales of their
constitutional rights. Sgt. Cerrillo advised Enriquez, in front of
the latters wife, that he should look for a lawyer so that his
statement could be taken. Sgt. Cerrillo prepared the request for
the examination of the evidence taken from the accused and
the affidavit[10] of the latter's arrest.[11]

On the evening of 05 June 1990, Minda and other relatives

of Enriquez approached Sgt. Cerrillo for the possibility of
"settling" the case. During the trial, another relative, a senior
supervising agent of the Napolcom, also approached and
requested Sgt. Cerrillo to help out.[12]
Patrolwoman Shirley Maramot, 37 years old, assigned at
Police Station No. 2, corroborated Sgt. Cerrillo. She testified
that she was requested by Sgt. Cerrillo to be the poseur-buyer
in the buy-bust operation conducted in the morning of 05 June
1990 along Alinian Street, Tondo, Manila. After Sgt. Cerrillo had
conducted a briefing and provided her with the buy-bust
money, Pat. Maramot went with Mendoza, who portrayed the
role of her husband, and the informer to Radial 10 at Pier
14. When Wilfredo Rosales turned up, he asked if she had cash
with her.After being shown the money, Rosales led her to a
house numbered 1349. The poseur-buyers were made to wait
momentarily while Rosales talked to Ernesto Enriquez. Rosales
later signaled Pat. Maramot, who was around four (4) meters
away, to again show her money. Forthwith, Pat. Maramot was
led to the house of Enriquez. Once inside a small room,
Enriquez locked the door. Enriquez asked Pat. Maramot how
much money she had. She replied that she only had P1,000.00
since she was not sure that she could get as much as the onehalf sack of the contraband shown to her. Pat. Maramot was
told she could get the lot for P4,500.00. She said she was
willing to get the lot if she could be trusted with the balance of
the price.Enriquez agreed. Pat. Maramot handed over
the P1,000.00 to Enriquez. The latter was about to hand over
the marijuana when he decided to, instead, have Rosales
personally deliver the marijuana.
Pat. Maramot followed Rosales until Maramot finally
introduced herself as a policewoman. Rosales posthaste
attempted to board a passing passenger jeep but Pat. Maramot
and Sgt. Cerrillo, who had rushed in, were able to timely get
hold of Rosales.[13]
NBI Forensic Chemist George J. de Lara issued, on 06 June
1990, a certification to the effect that the specimen submitted
to him was positive for marijuana. [14] Sgt. Cerrillo prepared a
case report[15] and the respective booking sheet and arrest

report.[16] The official report of the NBI forensic chemist, dated

07 June 1990, disclosed the following findings:
Weight of specimen = 6.00 kilograms (before examination)
5.999 kilograms (after examination)

under contract by the Lorenzo Shipping Corporation from

January 1983 to April 1984. He was also the Vice-President of
the Kapisanan ng Maralitang Naninirahan ng Tondo, Inc. a civic
organization and a recipient of a certification of merit from the
National Steel Corporation.[23]

Accused Rosales testified that he had come from Bohol to

Manila in April of 1990 and stayed with accused Enriquez, his
cousin, while working as an extra porter of William Lines. At
around 11:30 in the morning of 05 June 1990, he was on his
way home from work when a male person whom he recognized
only by face sought his assistance in carrying a sack to a place
where jeepney commuters would take their ride. The sack was
colored white and emitted the smell of dried fish. He was
promised P20 in exchange for his help. At a junction, a security
guard whom he later identified to be Homer Ciesta, blocked
and pushed him inside a vehicle where he was promptly
handcuffed. During the commotion, the owner of the sack
disappeared.[19] Rosales was brought to a house near the slum
area in Parola where P20,000 was quoted for his release by Sgt.
Cerrillo.[20] When Rosales did not heed the demand, he was
brought first to the Lakandula detachment and then to Station
No. 2 of the Western Police District.

Recounting his whereabouts in the morning of 05 June

1990, Enriquez said he left his house at around 11:45 a.m. for
Pier 10 of the North Harbor, barely a thirty-minute walk away
from his residence, to meet his brother, Victor Enriquez, at the
pier. He had with him P2,000 in P100 denominations stacked in
his wallet. Robinson Lumbis, a neighbor who was road testing
his cab along North Harbor, saw and greeted Enriquez. [24] Betty
Quimbo, another neighbor, later saw Enriquez with his brother.
[25]
Appellant took his lunch at home and thereafter hurriedly
returned to the pier. He was not able to spend the night in his
house. The following day, 06 June 1990, at around two oclock
in the afternoon, Enriquez went to the maintenance section of
the Lorenzo Shipping Lines to pay for the oil he had obtained
from its vessels. Homer Ciesta, the officer-in-charge of the
security guards of the shipping line, invited Enriquez, and the
latter agreed, to join him (Ciesta) earn some "extra
money." The two left for the squatters area in Parola and, once
there, Ciesta told Enriquez to approach a certain person, later
identified to be Sgt. Cerrillo, who instantly handcuffed him. Sgt.
Cerrillo demanded P20,000 in exchange for his freedom. When
he refused to give in to the demand, Enriquez was brought to
the Lakandula detachment where the P2,000 he had in his
wallet was taken and presented in evidence as the amount
used in the buy-bust operation. He was brought to Station No.
2 of the WPD for investigation.[26] Homer Ciesta went to tell
Arminda, the wife of Enriquez, to bring some money to the
Lakandula police detachment. Arriving at the detachment,
someone approached Arminda and asked her whether she had
the money. She replied in the affirmative. The person then
grabbed her wallet, took its contents and later returned the
empty wallet.[27]

On his part, Enriquez, a resident of 1349-C Alinian Street,

Tondo, Manila, claimed that he was in the business of purchase
and sale of oil at the North Harbor, under the business name of
Nie-Men R. Enriquez Enterprises, [21] being the grantee of a
permit to operate an oil sludge collection service. [22] He was

On 24 January 1991, the trial court, giving credence to the

evidence submitted by the prosecution, found both accused
guilty beyond reasonable doubt of the crime charged and
sentenced each of them to life imprisonment and to pay a fine
of P30,000.

Microscopic, chemical and chromatographic examinations

made on the above-mentioned specimen gave POSITIVE
RESULTS for MARIHUANA.[17]
On the same day, Station Commander Benjamin de Jesus
endorsed the case against Enriquez and Rosales to the City
Prosecutor for further proceedings. The inquest fiscal
recommended[18] that the two accused be charged with
violation of Section 4, Article II, Republic Act No. 6425, as
amended.
The defense gave a different version of the incident.

In their appeal to this Court, Rosales and Enriquez have

filed separate briefs.

regrettably, has miserably failed to substantiate his allegations

in this respect.

Appellant Enriquez insists on his innocence and faults the

trial court for giving too much credence to the testimony of
Sgt. Cerrillo and Pat. Maramot who, Enriquez asserts, have
merely framed them up for selfish motives. He theorizes that it
would seem incredible for either Pat. Maramot or Sgt. Cerrillo to
have left and abandoned Station No. 2 considering that the
Station Commander and his men have all been posted in the
then on-going rally at the U.S. Embassy. He downgrades the
prosecutions asseveration that Pat. Maramot, being unarmed,
could not effect his immediate arrest, and that Sgt. Cerrillo has
so used his personal funds as marked money. Enriquez also
questions the six-day delay in the filing of the information.

Enriquez questions the six-day delay in the filing of the

information against him which he attributes to an extortion
attempt made on him. Like an alleged frame-up, a supposed
extortion by police officers has, too, been a standard defense in
drug cases. Appellants failure to offer evidence, independently
of his bare claim of extortion, suggests that this defense could
either be a fabrication or an afterthought. If, truly, the arresting
police officers have tried to extort money from him, it should
have behooved Enriquez to come forward with the proper
charges against the erring police officers. [31] No criminal or
administrative charges appear to have been filed by him. It is
equally strange that the supposed extortions neither appeared
in appellant's counter-affidavit[32] nor in his affidavit[33] both
prepared by his counsel of choice. In any event, the Court does
not see any real undue delay on the part of the police. The
station commander filed the case with the prosecutor on 07
June 1990, the same day that the NBI forensic chemists official
report was released. The transmittal letter, [34] of the station
commander, bears the recommendation, likewise dated 07
June 1990, of the inquest fiscal finding a violation of Section 4,
Article II, of R.A. No. 6425.

The Court is scarcely impressed.

Simply said, appellant Enriquez would assail the credibility
of the two prosecution witnesses. Almost always, the
evaluation made by the trial court on the credibility of
witnesses is viewed with respect. The trial judge, who has the
distinct advantage of being able to observe closely the
demeanor and deportment of witnesses on the stand as well as
the manner in which they testify, undoubtedly can better
determine than anyone else if such witnesses are telling or are
not telling the truth. He is in an ideal position to weigh
conflicting testimonies and unless, as so repeatedly said, he
has obviously discarded or missed certain facts of substance
and significance that, otherwise, would have altered his
judgment, an assessment on credibility made by him should
indeed deserve approbation by an appellate court. [28]
The Court, in the case at bench, has scrutinized the
records, and it finds no justification for holding differently from
the findings made by the trial court.
In drug related cases, particularly in a buy-bust operation,
the contention that the accused has merely been framed up by
law enforcement personnel for selfish motives is quite often
raised by the defense. For this claim to prosper, the evidence
adduced must be clear and convincing [29] in order to overcome
the presumption that government officials have performed
their duties in a regular and proper manner. [30] Appellant,

Appellant Enriquez surmised that it was strange for Sgt.

Cerrillo and Pat. Maramot to have left the police station
unmanned just to conduct a buy-bust operation. Sgt. Cerrillo
explained that, being the Intelligence Officer in Station No. 2,
he would spend most of his duty hours in the field. [35] He chose
Pat. Maramot to be the poseur-buyer because she was not well
known in the place of operation. While she had a desk job she
could also be assigned elsewhere when the situation would
demand. Furthermore, the buy-bust operation was conducted
in an area not far from the police station (testified to be at an
approximate distance of between the Manila City Hall and the
Luneta Park[36]).
On cross-examination, Pat. Maramot explained why she
could not arrest Enriquez when he received the money. She
testified:
ATTY. ESMERO:

"During the time that you were in that room

together with Enriquez and you said that Enriquez
took up a half sack of marijuana under the table,
did it not occur to your mind to arrest him
immediately during that time and introduced
yourself as a policewoman together with your
husband?
"WITNESS:
"If you will place yourself in my situation, I am
so small to arrest a person and I am not so big so I
have to wait for my companions, sir.
"INTERPRETER:
"Witness pointed to the Accused.
"ATTY. ESMERO:
"How about your supposed husband?
"WITNESS:
"Besides we did not bring anything even a gun
because they are outside, sir.
"ATTY. ESMERO:
"You could have immediately went (sic) out of
the door and after that contacted Cerrillo. You could
have told him immediately because he was about
seven (7) meters from that room?
"WITNESS:
"The door was locked, sir.
"ATTY. ESMERO:
"You could have knocked at the door if you
want to call him?
"WITNESS:
"It could not be heard because in that alley
there were adjacent rooms, sir, `kuwarto-kuwarto.'
"ATTY. ESMERO:
"Now, you said that you went out through the
back door. Who was together with you when you
went out at the back door?
"WITNESS:
"Joseph, the one who pretended to be my
husband, sir.
"ATTY. ESMERO:
"How about Rosales?
"WITNESS:

"He passed through the front door together

with the informant, sir.
"ATTY. ESMERO:
"And the front door was where Pat. Cerrillo was
positioned?
"WITNESS:
"No, sir. Cerillo was positioned at the side. He could
not meet them immediately because when you go
out at that door, it is already a street.[37]
The use of Sgt. Cerrillos own money in the buy-bust
operation could be expected. Police Station No. 2 was not
logistically funded.[38] In the buy-bust operation, only three 100peso bills of the marked money were recovered which,
unfortunately, were lost to thieves when Sgt. Cerrillo had
momentarily parked his jeep within the vicinity of the police
station on 11 July 1990.[39]He reported this loss along with the
loss of an ammunition belt pack with six (6) live cal. .38 bullets
and his Parker ballpen.[40] At any rate, the non-presentation of
the buy-bust money could not adversely affect the case against
appellants.[41]
Alibi is definitely a weak defense although it may
occasionally prove to be a good plea. In order to be effective,
however, this defense requires proof that it would be physically
impossible for the accused to be at the locus criminis at the
time of the commission of the crime. Where there is even the
least chance for the accused to be present at the crime scene,
thealibi seldom will hold water.[42] Most significantly, the
defense of alibi crumbles in the face of a positive identification
of the malefactor.[43]
In his case, appellant Rosales argues that to sustain a
conviction for the crime of selling marijuana, the sale must be
clearly established which, he asserts, the prosecution has failed
to do.
The Court cannot sustain the argument.
Under Section 4, Article II, of R.A. No. 6425, [44] as amended,
the law penalizes not only the sale but also the delivery of
prohibited drugs.

Section 4. Sale, Administration, Delivery, Distribution and

Transportation of Prohibited Drugs. The penalty of life
imprisonment to death and a fine ranging from twenty
thousand to thirty thousand pesos shall be imposed upon any
person who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of
such transactions. 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 a victim
thereof, the maximum penalty herein provided shall be
imposed. (Italics supplied.)
Selling is only one of the acts covered by the statutory
provision. The law defines the word deliver as a persons act of
knowingly passing a dangerous drug to another personally or
otherwise, and by any manner with or without consideration.
Delivery, although not incidental to a sale, is a punishable act
by itself; while sale may involve money or any other material
consideration,[45] delivery may be with or without consideration.
Appellant Rosales contends that while criminal intent need
not generally be proved in crimes that are mala prohibita,
knowledge that the sack in his possession contained a
prohibited drug must nevertheless be established. Indeed,
Section 2(f) of the Dangerous Drugs Law requires that a person
who delivers a prohibited drug must knowingly pass such
contraband to another person. Thus, in one case, the Court has
said:
x x x. While it is true that the non-revelation of the identity of
an informer is a standard practice in drug cases, such is
inapplicable in the case at bar as the circumstances are
different. The would-be buyers testimony was absolutely
necessary because it could have helped the trial court in
determining whether or not the accused-appellant
had knowledge that the bag contained marijuana, such
knowledge being an essential ingredient of the offense for
which he was convicted. The testimony of the poseur-buyer
(not as an informer but as a `buyer) as to the alleged
agreement to sell therefore became indispensable to arrive at
a just and proper disposition of this case. [46]

In this case, the trouble appears to be that appellant Rosales

incorrectly assumes to be, or gives an impression of being,
unaware of the prohibited drug involved in the questioned
transaction with appellant Enriquez; in point of fact, however, it
is sufficiently shown that Rosales has known all along that the
deal between Enriquez and the poseur-buyers had only to do
with marijuana.
Appellant Rosales believes that his act of carrying the sack
of marijuana is a mere attempt to deliver the prohibited drug.
In other words, the sack being still within his control, he could,
he states, have easily refused to deliver the item to the poseurbuyer. Here, he seeks to capitalize on his being supposedly still
in the subjective phase of the crime. Appellant Rosales thus
submits that, if found guilty, he should only be held
accountable for attempted delivery of a prohibited drug.
Article 6 of the Revised Penal Code provides:
"ART. 6. Consummated, frustrated, and attempted felonies. Consummated felonies, as well as those which are frustrated
and attempted, are punishable.
"A felony is consummated when all the elements necessary for
its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of execution
which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
"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."
The subjective phase in the commission of a felony is that
portion of its execution starting from the point where the
offender begins by overt acts to pursue the crime until he is
prevented, against his will, by some outside cause from
performing all of the acts which would produce the offense. If
the subjective phase has not yet passed, then the crime is only

attempted. If that phase has been done but the felony is not
produced, the crime is frustrated. [47] The crime is consummated
if, following the subjective phase, the last of the elements of
the felony meets to concur. These rules are inapplicable to
offenses governed by special laws. [48]
Unfortunately for appellant, the crime with which he is
being charged is penalized by a special law. The incomplete
delivery claimed by appellant Rosales, granting that it is true,
is thus inconsequential. The act of conveying prohibited drugs
to an unknown destination has been held to be punishable,
[49]
and it is immaterial whether or not the place of destination
of the prohibited drug is reached.[50]
In sum, the facts proven beyond reasonable doubt in this
case were that: (a) Two police officers, one of them a woman,
conceived of and executed a buy-bust operation; (b) the
operation led to the red-handed apprehension of appellant
Rosales just as he delivered the illegal drug; and (c) appellant
Enriquez who had peddled the same to the poseur-buyer was
himself later arrested shortly thereafter. The sale and delivery
of marijuana constituted punishable acts under Section 4,
Article II, of R.A. No. 6425, as amended. Appellants Enriquez
and Rosales should bear the consequences of their trifling with
the law. The two evidently confederated towards the common
purpose of selling and delivering marijuana. Conspiracy could
be inferred from the acts of the accused, whose conduct
before, during and after the commission of the crime would
show its existence.[51] It was appellant Rosales who brought the
poseur-buyer to appellant Enriquez for the purchase of
marijuana. It was upon the instruction of appellant Enriquez,
apparently to retain control of the unpaid portion of the sixkilogram contraband, that appellant Rosales was to carry the
sack to the supposed residence of the poseur-buyers. In
conspiracy, the act of one conspirator could be held to be the
act of the other.[52]
R.A. No. 7659, amending the Dangerous Drugs Law, now
provides that if the quantity of drugs involved in any of the
punishable acts is more than any of the amounts specified in
the law, the penalty of reclusion perpetua to death[53] must be
imposed. Considering that the marijuana involved here
weighed more than 750 grams, the maximum specified amount

for marijuana, appellants, ordinarily, are to be meted that

penalty. An amendatory law, however, may only be applied
retroactively if it proves to be beneficial to the appellants. In
this case, it would not be that favorable to them; hence, like
in People vs. Ballagan,[54] the Court could only impose the
penalty of life imprisonment upon appellants. The penalty
of reclusion perpetuawould mean that the accused would also
have to suffer the accessories carried by that penalty, as well
as the higher fine, provided for by R.A. No. 7659.[55] Appellants
must, accordingly, still bear the penalty imposed on them by
the trial court.
WHEREFORE, the questioned Decision of 21 January 1991
of the Regional Trial Court of Manila, finding appellants Ernesto
Enriquez and Wilfredo Rosales guilty beyond reasonable doubt
of the crime punished by Section 4, Article II, of R.A. No. 6425,
as amended, and imposing on them the penalty of life
imprisonment and the payment of the fine of P30,000 is
AFFIRMED. Costs against appellants.
SO ORDERED.
Davide,
Jr.,
Acting
Chief
Bellosillo, and Kapunan, JJ., concur.

Justice,

(Chairman),

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 90035 September 13, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.

AMADEO HANGDAAN and ROMEL BALLOGAN, defendants.

AMADEO HANGDAAN, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorneys Office for defendant-appellant.

PADILLA, J.:p
In Criminal Case No. 653 of the Regional Trial Court of Lagawe,
Ifugao, Branch 14, * the accused-appellant Amadeo Hangdaan
was convicted for the rape of Jocelyn Binoy, a 15 year old girl. His
co-accused Romel Ballogan was not arraigned and tried as he
remains at large. Hangdaan was sentenced to reclusion
perpetua and to indemnify the victim in the amount of
P30,000.00. 1 He has appealed the decision, contending that the trial
court erred in finding and concluding that he is guilty beyond
reasonable doubt of the crime charged.
During the trial of the case, the prosecution established the
following facts: 2
That in the evening of November 12, 1986, one
Jocelyn Binoy, a 15 years old student of the ISCAF,
Nayon, Ifugao, went to attend a program at the
Convention Hall Building of said Institution. After the
program, said Jocelyn Binoy went to the girls'
dormitory where she boards. However, before
entering the dorm, she went to the toilet for
necessity. As she sat to delicate, (sic) two boys, who
were later Identified as Romel Ballogan and Amadeo
Hangdaan, entered the comfort room and both
Romel Ballogan and Amadeo Hangdaan grabbed
Jocelyn and pushed her to the wall with Romel
poking a knife at her side. That Jocelyn shouted but
her mouth was covered and was threatened with
bodily harm if she does not keep quiet. That as
Jocelyn was pushed with her back to the wall of the

toilet, her panty was roughly removed and Romel

Ballogan, whose zipper was already opened tried to
insert his penis inside the organ of Jocelyn who was
crying with pain. That Romel's penis was not able to
penetrate Jocelyn's vagina as they were in standing
position.
Evidence for the prosecution further show that when
Romel could not penetrate despite several attempts,
the light went off inside the toilet. So the two boys
dragged Jocelyn to a hut across the river some 150
meters away from the toilet and there she was
undressed and pushed down on the floor. That
Romel went on top of Jocelyn and succeeded in
raping her. That Jocelyn tried to resist but was weak
and the knife was constantly poked at her side. That
after Romel Ballogan, the accused who is at large in
this case, finished having sexual intercourse with
Jocelyn, Amadeo Hangdaan also went on top of
Jocelyn and tried to insert his penis but could not
penetrate her as his penis was too big. So Amadeo
mashed the nipples and breast of Jocelyn. After that,
Amadeo stood up and again Romel went on top of
Jocelyn for the second time and again succeeded in
having sexual intercourse with Jocelyn. After Romel
was through with his second intercourse with
Jocelyn, Amadeo again went on top of Jocelyn and
tried to penetrate her but could not put his penis
inside so he contended himself by mashing the
breast of Jocelyn. After Amadeo stood up, Romel
again went on top Jocelyn and for the third time had
intercourse with her. Then again after Romel,
Amadeo tried but simply could not put in his penis
and just mashed the breast of Jocelyn.
Finally, it is the evidence of the prosecution that
after Romel Ballogan succeeded in raping Jocelyn
three times and also three unsuccessful penetrations
on the part of Amadeo Hangdaan, the two men
allowed their victim to go home with the warning

that if she tells anyone they will do her harm. That

Jocelyn Binoy went dizzily and with pains all over her
body to the dormitory and knocked and the door was
opened by Rosa Albino and Jocelyn while crying told
her what happened to her and she was asked to go
to sleep until the following morning. The following
morning, Rosa and the principal confronted Jocelyn
who related what happened to her and thereafter
the matter was reported to the police authorities of
Lamut, Ifugao. The police went after the accused but
only Amadeo Hangdaan was arrested and Identified
by the victim while Romel Ballogan, remained at
large.
The defense, on the other hand, denied participation by the
accused Hangdaan in the crime charged and gave Hangdaan's
own exculpatory version of the incident, as follows: 3
That on November 12, 1986, accused was at their
house at Bolog, Kiangan Ifugao. That after 4:00
o'clock in the afternoon Amadeo Hangdaan, coaccused in this case, proceeded to Nayon and
dropped at the Robles store where he met Romel
Ballogan, the other accused in this case and one
Eugenio Mangag who were drinking gin at the
Calimlim's store. That the two offered Amadeo a
drink and he took a shot. Then after an hour, the
three transferred to another store where they took
some more drinks. While drinking, Romel and
Eugenio had a scuffle with the security guard and
thereafter, the three run (sic) away. Later, Amadeo
proceeded to the program at Nayon, Lamut where
again he met Romel Ballogan. After an hour, Amadeo
thought of going home. Moments later, Amadeo met
Ricardo Namingit and borrowed his flashlight. Then
Amadeo after borrowing the flashlight from Ricardo
went back to the program and there he met again
Romel who insisted on borrowing the flashlight from
Amadeo to look for a Batangas knife that he dropped
and so Amadeo gave the flashlight. Moments later,

Amadeo Hangdaan met Ricardo and he asked for his

flashlight but Amadeo told Ricardo that he will look
for Romel Ballogan and get back the flashlight.
Amadeo then went to the school where the program
was held but Romel was not there; then we went to
the dorm but failed to find Romel there. So Amadeo
went to the small hut beyond the river and there he
saw Romel lying on top of a girl who was crying
softly. The girl asked Amadeo (sic) help but Amadeo
did nothing. Then Amadeo got the flashlight as (sic)
he borrowed and told Romel that he is returning it to
Ricardo. Thereafter, Amadeo left for home. The
following morning, he was apprehended by Lt.
Brawner, the Station Commander of the INP of
Lamut, Ifugao.
The trial court however, gave credence to the prosecution's
evidence and convicted the accused Amadeo Hangdaan for the
crime of rape. 4 Whereupon, the accused interposed the present
appeal, with denial as his only defense.
After a careful review of the records and the evidence, we find no
cogent reason to disturb the judgment of the trial court which
found the appellant's denial devoid of truth and the appellant
guilty beyond reasonable doubt.
As aptly observed by the People, the accused-appellant's defense
leaves much to be desired. He admits that he was at the scene of
the crime and there saw his co-accused, Romel Ballogan, lying on
top of a girl who was crying softly. He also admits that the girl
asked his help but he did nothing except to get back a flashlight
from Romel and then left for home after telling Romel that he was
returning the flashlight to Ricardo. Although appellant admitted
his presence at the scene of the incident with a hint that it was his
co-accused Romel Ballogan who raped the victim, he, however,
vehemently denies having participated in the commission thereof.

He attempts to bolster such denial by pointing out that unlike his

co-accused Romel Ballogan, who fled and remains at large, he did
not hide, thereby showing that he is innocent of the crime
charged. 5

xxx xxx xxx

Q And after the accused had forcible
intercourse with you, what happened
next?

Appellant's pretended innocence is clearly non-sequitur to his

decision not to flee. Apart from the fact that there is no case law
holding that non-flight is conclusive proof of innocence, the
argument does not hold weight in the light of the positive
identification of the appellant by the victim as one of two (2) men
who abused her. 6 The material factor here is that there is positive
Identification of the accused as the author or, more accurately, coauthor of the crime. 7

A The other one took over.

Q Whom are you referring to?
A That man in blue. (Witness pointing
to Amadeo Hangdaan)
Q And what did this Amadeo Hangdaan
do to you?

The accused-appellant further advances the argument that since

it is probable that the sperm found in the victim's vagina came
from one or more persons, it is also probable that only one person
raped the victim and that the offender or culprit was only Romel
Ballogan. The appellant appears to be stretching his argument too
far. We agree with the People when it says that the fact that the
sperm found in the vagina of the victim may have come from one
person is not conclusive that it was only Romel Ballogan who
raped the victim. Neither does such medical finding rule out the
participation of the appellant in the commission of the crime. 8
It must be pointed out that in the crime of rape, the important
consideration is penetration and not emission. The absence of
spermatozoa in the victim's vagina or thereabouts does not
necessarily negate the commission of rape. 9 In fact, with or
without the medical findings, a conviction would still be proper in the
case at bar given the positive identification of the accused-appellant
by the victim, while medical examination is not an indispensable
element in rape cases. 10
One other aspect of this case has to be dealt with. It appears from
the evidence that accused- appellant was unable to introduce his
private part into the victim's vagina. Was there consummated
rape? There was. The unrebutted evidence for the prosecution
positively implicates accused Hangdaan as having made several
effortsto penetrate the victim's vagina. The victim testified: 11

A He also came over me and tried to

insert his penis to my vagina but each
time he tried to do that, it could not go
inside so he started mashing my
breasts.
COURT: (to the witness)
Q Madam witness, do not cry. I will ask
you this question. Although his penis
was not able to penetrate your vagina,
you are sure that his penis touched
your vagina?
A Yes, but it did not penetrate.
xxx xxx xxx
Q After this first accused has carnal
knowledge of you for the second time,
what else transpired?

A After that the other one took over

again and went on top of me and at
the same time mashed my breasts.
Q Did he have sexual intercourse with
you for the second time?
A He tried but again his penis could not
go inside it was too big.
Q And after this accused Amadeo
Hangdaan played with your breasts,
what else transpired?
A After that they permitted me to go
home.
Q When this Amadeo Hangdaan was
mashing your breasts for the first time,
did you feel his penis inside your
vagina?
A It was on my vagina it could not go
inside because it was too big and so he
could not do it but mashed my breasts.
COURT:
Q But did it touch your vagina?
A Yes, sir.
xxx xxx xxx
Such testimony of the victim, which was given credence by the
trial court, suffices to support the conclusion that the accused
Hangdaan committed the crime of rape. The fact that the
accused repeatedly tried, but in vain, to introduce his big penis
into the victim's vagina leaves no doubt whatever as to the
consummation of the crime. For it is settled rule that for rape to

be consummated, it is not essential that there be perfect,

complete and full penetration of the vagina. Mere entry of the
labia or lips of the female organ without rupture of the hymen or
laceration of the vagina, is sufficient to warrant conviction for
consummated rape. 12
It is enough that there be proof of entrance of the
male organ lips the labia of the pudendum, or lips of
the female organ. The sligtest penetration is
sufficient to consummate the rape. 13
Finally, as this Court has repeatedly ruled, when the victim says
that she has been raped, she says in effect all that is necessary to
show that rape has been committed, and if her testimony meets
the test of credibility, the accused may be convicted on the basis
thereof. 14
In sum, what the appellant's defense really boils down to is that
he has greater credibility than the victim. In this regard, this Court
has ruled:
... on the question of the credence to which of the
conflicting versions of the prosecution and defense
are entitled, the answer given by the trial court is
generally viewed as correct and entitled to the
highest respect. 15
It is the policy of this Court to defer to the factual
findings of the trial judge, who has the advantage of
directly observing the witnesses in the stand and to
determine by their demeanor whether they are telling
or distoring the truth ... In rape cases especially, much
credence is accorded the testimony of the complaining
witness, on the theory that she will not choose to
accuse her attacker at all and subject herself to the
stigma and indignities her accusation will entail unless
she is telling the truth. 16

WHEREFORE, the judgment appealed from is AFFIRMED in all

respects. Costs against the accused-appellant.

SO ORDERED.