Crim All

MADELEINE MENDOZA-ONG, petitioner, vs. HON.
SANDIGANBAYAN and
PEOPLE OF THE PHILIPPINES, respondents.
RESOLUTION
QUISUMBING, J.:
This special civil action for certiorari assails Sandiganbayan Resolution dated May 8,
[1]
2000, denying petitioners Motion to Quash the Information in Criminal Case No. 23848,
[2]
for violation of Section 3(c) of R.A. No. 3019, as amended. Petitioner also impugns said
[3]
courts Resolution dated November 9, 2000, denying her Motion for Reconsideration.
[4]
The facts of the case, as culled from the records, are as follows:
Sometime in February 1993, the Sangguniang Bayan of Laoang, Northern Samar,

passed Resolution No. 93-132, authorizing the municipality to borrow heavy equipment
[5]
from the Philippine Armys 53rd Engineering Battalion, to be utilized in the improvement
of Laoangs Bus Terminal. Resolution No. 93-132 likewise mandated the municipal
government to shoulder the expenses for fuel, oil, and the subsistence allowances of the
heavy equipment operators for the duration of the project.
Allegedly, however, the borrowed Army equipment was diverted by the petitioner, who
was then the town mayor of Laoang, to develop some of her private properties
[6]
in Rawis, Laoang, Northern Samar. A concerned citizen and ex-member of

the Sangguniang Bayan of Laoang, Juanito G. Poso, Sr., filed a complaint against
petitioner and nine (9) other municipal officers with the Office of the Ombudsman (OMB),
[7]
Visayas, for violation of the Anti-Graft and Corrupt Practices Act.
Acting on the complaint, Graft Investigation Officer Alfonso S. Sarmiento of the OMB
ordered herein petitioner and her co-accused to submit their respective counter-affidavits
and other controverting evidence. Thereafter, in a Resolution dated August 16, 1995,
[8]
investigator Sarmiento recommended the filing of the appropriate criminal action against
petitioner for violation of Sections 3(c) and (e) of R.A. 3019, as amended. Despite [9]
strenuous opposition and objections by the defense, on August 1, 1997, two informations
were filed against her at the Sandiganbayan docketed as Criminal Cases Nos. 23847 and
23848, to wit:
(1) Criminal Case No. 23847
That on or about 15 February 1993, or sometime thereafter, in the Municipality of Laoang,

Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, accused
Madeleine Mendoza-Ong, a public officer, being then the Municipal Mayor of Laoang, committing
the crime herein charged in relation to, while in the performance and taking advantage of her
official functions, did then and there willfully, unlawfully and criminally, through manifest
partiality and evident bad faith, cause undue injury to the Government and give unwarranted
benefits, advantage or preference to herself and spouses Mr. and Mrs. Chupo Lao when she, in the
discharge of her official or administrative functions, caused the improvement or development of her
private land in Barangay Rawis through the use of the equipment and resources of the Philippine
Army, to the damage and prejudice of the Government.
CONTRARY TO LAW. [10]
This, however, was amended on October 27, 1998, so that Criminal Case No. 23847
would read as follows:

official functions, did then and there willfully, unlawfully and criminally, through manifest
partiality and evident bad faith, cause undue injury to the Government and give unwarranted
benefits, advantage or preference to her husband, Hector Ong, herself, and/or her family and
to spouses Mr. and Mrs. Chupo Lao when she, in the discharge of her official or administrative
functions, caused the improvement or development of a private land owned by her husband,
Hector Ong, herself and/or her family in Barangay Rawis through the use of the equipment and
resources of the Philippine Army, to the damage and prejudice of the Government.
(2) Criminal Case No. 23848

official functions, did then and there willfully, unlawfully and criminally, request or receive,
directly or indirectly, a gift, present or other pecuniary or material benefit in the form of five (5)
drums of diesel fuel, for herself or for another from the spouses Mr. and Mrs. Chupo Lao, persons
for whom accused Mendoza-Ong, in any manner or capacity, has secured or obtained, or will
secure or obtain, any Municipal Government permit or license anent the operation of the bus
company, JB Lines, owned by the aforenamed spouses, in consideration for the help given or to be
given by the accused.
On September 15, 1999, petitioner filed a Motion to Quash with

the Sandiganbayan alleging in the main that: (1) the informations especially in Criminal
Case No. 23848, failed to allege facts constituting an offense; (2) that the officer who filed
the information has no authority to do so; and (3) that the accused was deprived of her
right to due process and to the speedy disposition of cases against her.
On May 8, 2000, the Sandiganbayan denied petitioners Motion to Quash. Petitioner

duly moved for reconsideration but this was likewise denied by the Sandiganbayan in its
order dated November 9, 2000.
Hence, the instant petition with assigned errors faulting respondent court as follows:
I. RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO

LACK OF JURISDICTION WHEN IT FAILED TO DISMISS THE INFORMATIONS FILED
AGAINST PETITIONER WHICH CLEARLY DO NOT ALLEGE SUFFICIENT FACTS
CONSTITUTING THE OFFENSE HENCE FAILING TO ALLEGE A PRIMA FACIE CASE
AGAINST PETITIONER, ACCUSED THEREIN.
II. RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT

DENIED PETITIONERS MOTION TO QUASH THE INFORMATIONS FILED BY AN
OFFICER WHO HAS NO AUTHORITY TO DO SO AND DESPITE THE FACT THAT THE
HEAD OF THE PROSECUTION DIVISION OF RESPONDENT COURT HAD
RECOMMENDED THE DISMISSAL OF SAID CASES.
III. RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT

REFUSED TO DISMISS THE INFORMATIONS AGAINST ACCUSED WHO HAD BEEN
DEPRIVED OF DUE PROCESS AND SPEEDY DETERMINATION OF THE CASE IN CLEAR
DISREGARD OF THIS HONORABLE COURTS RULINGS THAT INORDINATE DELAY IN
THE CONDUCT OF PRELIMINARY INVESTIGATIONS WOULD WARRANT DISMISSAL
OF THE CASE. [13]
Simply put, we find that the sole issue for resolution now is whether
the Sandiganbayan gravely erred or gravely abused its discretion in denying the Motion to
Quash filed by petitioner, particularly on the ground that the information in Criminal Case
No. 23848 does not constitute an offense. The other assigned errors are, in our view,
without sufficient merit and deserve no further consideration.
Petitioner claims that in a criminal prosecution for violation of Section 3(c) of R.A. 3019
as amended, the law requires that the gift received should be manifestly excessive as
defined by Section 2(c) of the same Act. She adds that it is imperative to specify the exact
value of the five drums of diesel fuel allegedly received by Mayor Ong as public officer to
determine whether such is manifestly excessive under the circumstances. [14]
The fundamental test of the viability of a motion to quash on the ground that the facts
averred in the information do not amount to an offense is whether the facts alleged would
establish the essential elements of the crime as defined by law. In this examination,
matters aliunde are not considered. [15]
Petitioner is charged specifically with violation of Section 3(c) of Republic Act No.
3019, as amended. The pertinent portions of said law provide:
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:
(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material
benefit, for himself or for another, from any person for whom the public officer, in any manner or
capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without prejudice to Section thirteen of this Act.
Based on the foregoing, the elements of the offense charged in the assailed
information are as follows: (1) the offender is a public officer; (2) he has secured or
obtained, or would secure or obtain, for a person any government permit or license; (3) he
directly or indirectly requested or received from said person any gift, present or other
pecuniary or material benefit for himself or for another; and (4) he requested or received
the gift, present or other pecuniary or material benefit in consideration for help given or to
be given. [16]
In the instant case, we find that the information in Crim. Case No. 23848 alleged that:
(1) accused Madeleine Mendoza-Ong, a public officer, being then the Municipal Mayor
of Laoang, (2) committed the crime charged in relation to, while in the performance and
taking advantage of her official functions, (3) did request or receive directly or indirectly, a
gift, present or other pecuniary or material benefit in the form of five drums of diesel fuel,
for herself or for another, from spouses Mr. and Mrs. Chupo Lao, persons for whom
accused Mendoza-Ong, (4) has secured or obtained, or will secure or obtain, a Municipal
Government permit or license anent the operation of the bus company, JB Lines, owned
by said spouses, in consideration for help given or to be given by the accused. After
considering thoroughly this averment as formulated by the prosecution, we are not
prepared to say that the impugned information omitted an element needed to adequately
charge a violation of Section 3(c) of R.A. 3019.
Petitioner pleads that the pertinent statute must be read in its entirety. She argues that
a provision of R.A. 3019 such as Section 3(c) must be interpreted in light of all other
provisions, particularly the definition of receiving any gift, under Section 2(a) thereof,
which reads as follows:
SEC. 2. Definition of terms.- As used in this Act, the term
(c) Receiving any gift includes the act of accepting directly or indirectly a gift from a person other
than a member of the public officers immediate family, in behalf of himself or of any member of
his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the
occasion of a family celebration or national festivity like Christmas, if the value of the gift is under
the circumstances manifestly excessive.
Petitioner contends that pursuant to her reading of the above provision, the value of
the alleged gift must be specified in the information. But note that Section
2(c) abovecited mentions a situation where (1) the value of the gift is manifestly excessive;
(2) from a person who is not a member of the public officers immediate family; and (3)
even on the occasion of a family celebration or national festivity.
In contrast, Section 3 (c) earlier quoted in the present case applies regardless of
whether the gifts value is manifestly excessive or not, and regardless of the
occasion. What is important here, in our view, is whether the gift is received in
consideration for help given or to be given by the public officer. The value of the gift is not
mentioned at all as an essential element of the offense charged under Section 3 (c), and
there appears no need to require the prosecution to specify such value in order to comply
with the requirements of showing a prima facie case.
Evidently the legislature is aware that in implementing R.A. 3019, it will be precedents
that will guide the court on the issue of what is or what is not manifestly excessive. [17]
In sum, we are constrained to rule that respondent court did not commit grave abuse
of discretion amounting to lack or excess of jurisdiction, much less did it gravely err, in
denying petitioners motion to quash the information filed against her in Criminal Case No.
23848. This ruling, however, is without prejudice to the actual merits of this criminal case
as may be shown during trial before the court a quo.
WHEREFORE, the petition is hereby DISMISSED. The assailed resolutions of

the Sandiganbayan in Criminal Case No. 23848 are AFFIRMED. No pronouncement as to
costs.
SO ORDERED.
Bellosillo, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.
LINDA CADIAO-PALACIOS, G.R. No. 168544

Petitioner,
Present:
YNARES-SANTIAGO, J.,
- versus - Chairperson,
AUSTRIA-MARTINEZ,
TINGA,*
NACHURA, and
PERALTA, JJ.
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated:
March 31, 2009
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
For review is the Decision[1] of the Sandiganbayan dated January 28, 2005 in Criminal
Case No. 27434, finding Victor S. Venturanza (Venturanza) and petitioner Linda Cadiao-
Palacios guilty beyond reasonable doubt of violation of Section 3(b), Republic Act (R.A.) No.
3019.[2]
Petitioner was the mayor of the Municipality of Culasi, Province of Antique from July
1998 to June 2001.[3] During her administration, there were infrastructure projects that were
initiated during the incumbency of her predecessor, then Mayor Aida Alpas, which remained
partially unpaid. These included the Janlagasi Diversion Dam, San Luis Diversion Dam,
Caridad-Bagacay Road, and San Juan-Tumao Road which were contracted by L.S. Gamotin
Construction (L.S. Gamotin) with a total project cost of P2 million. For the said projects, the
municipality owed the contractor P791,047.00.[4]
Relative to the aforesaid projects, petitioner, together with Venturanza, then the
Municipal Security Officer, was indicted in an Information for violation of Section 3(b), R.A.
No. 3019, the accusatory portion of which reads:
That in or about the month of January, 1999, and for sometime prior and
subsequent thereto, at the Municipality of Culasi, Province of Antique, Philippines,
and within the jurisdiction of this Honorable Court, above-named accused, LINDA
CADIAO PALACIOS and VIC VENTURANZA, public officers, being the Municipal
Mayor and Security Officer to the Mayor, respectively, of the Municipality of Culasi,
Antique, and as such, accused Mayor is the approving authority of contracts involving
the Municipality, in such capacity and committing the offense in relation to office,
conniving and confederating together and mutually helping with each other, with
deliberate intent, with intent of (sic) gain, did then and there willfully, unlawfully and
feloniously demand money from Grace Superficial of L.S. Gamotin Construction,
which undertook the construction of the following government projects, for the
Municipality of Culasi, Province of Antique, to wit:
a) Rehabilitation of Tumao-San Juan Road;

b) Rehabilitation of Centro Norte-Buenavista Road; and
c) Rehabilitation of Bagacay-Buenavista Road
which projects amounted to TWO MILLION PESOS (P2,000,000.00), Philippine

Currency, which was sourced from the National Disaster Coordinating Council and
channeled to the Municipality of Culasi, under condition that the final payments for
said projects would not be released, if said amounts would not be given, and
consequently received the amounts of FIFTEEN THOUSAND PESOS (P15,000.00)
in cash and ONE HUNDRED SIXTY-TWO THOUSAND FOUR HUNDRED
PESOS (P162,400.00) in LBP Check No. 3395274, thus accused Mayor Linda
Cadiao Palacios, directly or indirectly through her co-accused Vic Venturanza,
demanded or received money from a person, in connection with contracts or
transactions between the government, wherein the public officer in her official
capacity has to intervene under the law.
CONTRARY TO LAW.[5]
On April 16, 2002, both accused voluntarily surrendered and, upon motion, posted a
reduced bail bond of P15,000.00 each.[6] They were subsequently arraigned wherein they both
pleaded Not Guilty.[7] Trial thereafter ensued.
During trial, the prosecution presented its sole witnessthe private complainant herself,
Grace M. Superficial (Superficial). Her testimony may be summarized as follows:
For and on behalf of L.S. Gamotin, she (Superficial) took charge of the collection of the
unpaid billings of the municipality.[8] Prior to the full payment of the municipalitys obligation,
petitioner demanded money from her, under threat that the final payment would not be released
unless she complied. Acceding to petitioners demand, she gave the formers
husband P15,000.00.[9] Sometime in January 1999, petitioner demanded from Superficial the
full payment of her total kickback which should be 10% of the project cost. Superficial thus
proposed that she would deliver a check in lieu of cash, to which petitioner agreed.[10]
On January 25, 1999, petitioner gave to Neil Superficial, then an incumbent councilor
and the husband of private complainant, three checks [11] representing the final payment for the
construction projects. The following day, Venturanza picked up the check promised by
Superficial as payment for the 10% kickback. In accordance with petitioners instruction, the
check was made payable to Venturanza in the amount of P162,400.00. The check was encashed
by Venturanza at the Land Bank of the Philippines (LBP), San Jose, Antique Branch, which is
about 90-100 kilometers away from Culasi; and the amount was received by Venturanza. [12] It
was Venturanza also who deposited the three checks, representing the full payment of the
project, to the account of Superficial.[13]
The prosecution likewise offered the following documentary evidence: 1) Minutes of the
Meeting of Pre-Qualification, [Bid] and Award Committee (PBAC) held at the Municipality of
Antique;[14] 2) Land Bank Check No. 3395274P dated January 26, 1999 in the amount
of P162,400.00;[15] 3) Complainants Consolidated Sur-Reply;[16] and 4) Deposit Slip of the three
LBP Checks representing full payment of the project.[17]
The defense, on the other hand, presented the following witnesses: 1) petitioner herself,
2) Venturanza, 3) Engr. Armand Cadigal, 4) petitioners husband Emmanuel Palacios, 5)
petitioners Executive Assistant Eugene de Los Reyes, and 6) Atty. Rex Suiza Castillon. Their
testimonies may be summarized as follows:
Petitioner denied Superficials allegations. She insisted that she only dealt with the owner
of L.S. Gamotin, Engr. Leobardo S. Gamotin (Engr. Gamotin), relative to the infrastructure
projects; thus, she could have made the demand directly from him and not from
Superficial. Contrary to Superficials contention, it was Engr. Gamotin himself who claimed
payment through a demand letter addressed to petitioner.[18] She added that she only met
Superficial when the latter received the checks representing the final payment.She further
testified that she never entrusted any highly sensitive matter to Venturanza since her trusted
employee was her chief of staff. She also averred that she was not the only person responsible
for the release of the checks since the vouchers also required the signatures of the municipal
treasurer, the municipal budget officer, and the municipal accountant. [19] As far as Venturanza
was concerned, she denied knowledge of such transaction as he did not ask permission from her
when he used the vehicle of the municipality to go to San Jose.[20] Lastly, she claimed that the
filing of the case against her was politically motivated.[21]
Emmanuel Palacios likewise denied having received P15,000.00 from Superficial. He

claimed that he was financially stable, being a Forester; the manager of a 200-hectare
agricultural land and of a medium piggery establishment; and the owner of a residential house
valued at no less than P6 million, a parcel of land and other properties.[22] He also claimed that
the institution of the criminal case was ill-motivated as Neil Superficial, in fact, initiated a
complaint against him for frustrated murder.[23]
Venturanza, for his part, admitted that he indeed received the check from Superficial but
denied that it was grease money. He claimed that the said amount (P162,400.00) was received
by him in the form of a loan. He explained that he borrowed from Superficial P150,000.00 to
finance his trip to Australia so that he could attend the wedding of his nephew; and asked for an
additional amount for his expenses in processing his visa.[24] Venturanza, however, failed to
leave for Australia. Of the total amount of his loan, he allegedly spent P15,000.00 in processing
his visa. Venturanza stated that he was able to repay the entire amount immediately because he
obtained a loan from the Rural Bank of Aklan, Pandan Branch, to pay the amount he used in
applying for his visa. He further testified that he was persuaded by the Superficials to campaign
against petitioner.[25]
On January 28, 2005, the Sandiganbayan rendered a decision convicting both accused of
the crime charged, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding accused LINDA

CADIAO-PALACIOS and VICTOR S. VENTURANZA GUILTY beyond reasonable
doubt of violation of Section 3 (b) of Republic Act No. 3019, otherwise known as The
Anti-Graft and Corrupt Practices Act. Accordingly, in view of the attendant mitigating
circumstance of voluntary surrender of both accused, each of them are hereby
sentenced to (i) suffer an indeterminate sentence of imprisonment for a period of six
(6) years and one (1) month, as minimum, to nine (9) years, as maximum; (ii) suffer
all accessory penalties consequent thereto; and (iii) pay the costs.
SO ORDERED.[26]
The Sandiganbayan concluded that the following circumstances established the guilt of
both petitioner and Venturanza: 1) that the municipality had outstanding obligations with L.S.
Gamotin for the construction of several public works that were completed in 1998; 2) that
petitioner was the person authorized to effect the payment of said obligations which, in fact, she
did; 3) that Venturanza was a trusted employee of petitioner as he was in charge of the security
of the municipal buildings and personnel as well as the adjoining offices; 4) that Venturanza
received the three LBP checks representing the full payment to L.S. Gamotin and the LBP
check bearing the amount of P162,400.00; 5) that Venturanza went to San Jose, Antique on
January 26, 1999 to deposit the three checks and encashed the P162,400.00 check; 6) that
Venturanza did not receive the above amount by virtue of a loan agreement with Superficial
because there was no evidence to prove it; 7) that Venturanza used the vehicle of the
municipality to encash the check in San Jose, Antique; and 8) that the amount of P15,000.00
initially given to Emmanuel Palacios and the P162,400.00 appearing on the check corresponded
to the 10% of the total project cost after deducting the 10% VAT and P10,000.00 Engineering
Supervision Fee.[27]
In arriving at this conclusion, the Sandiganbayan gave credence to the testimony of the
lone witness for the prosecution. It added that contrary to the claim of the defense, no ill motive
could be attributed to her in testifying against petitioner and Venturanza. This is especially true
in the case of the latter, as she was related to him. In finding both accused guilty, the
Sandiganbayan concluded that, together, they conspired in committing the offense charged.
Aggrieved, petitioner and Venturanza separately appealed their conviction. The latter
petition was docketed as G.R. No. 168548 which was denied by this Court in a Resolution
dated September 26, 2005. The former, on the other hand, is now before us, mainly challenging
the legal and factual bases of the Sandiganbayan decision.
The petition lacks merit.
Section 3 (b) of the Anti-Graft and Corrupt Practices Act provides:
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:
xxxx
(b) Directly or indirectly requesting or receiving any gift, present, share, percentage,
or benefit, for himself or for any other person, in connection with any contract or
transaction between the Government and any other party, wherein the public officer in
his official capacity has to intervene under the law.
To be convicted of violation of Section 3(b) of R.A. No. 3019, the prosecution has the
burden of proving the following elements: 1) the offender is a public officer; 2) who requested
or received a gift, a present, a share, a percentage, or benefit; 3) on behalf of the offender or any
other person; 4) in connection with a contract or transaction with the government; 5) in which
the public officer, in an official capacity under the law, has the right to intervene.[28]
At the time material to the case, petitioner was the mayor of the Municipality of Culasi,
Antique. As mayor, her signature, both in the vouchers and in the checks issued by the
municipality, was necessary to effect payment to contractors (for government projects). [29] Since
the case involved the collection by L.S. Gamotin of the municipalitys outstanding obligation to
the former, the right of petitioner to intervene in her official capacity is undisputed. Therefore,
elements 1, 4 and 5 of the offense are present.[30]
Petitioners refutation of her conviction focuses on the evidence appreciated by the

Sandiganbayan establishing that she demanded and received grease money in connection with
the transaction/contract.
Section 3(b) penalizes three distinct acts 1) demanding or requesting; 2) receiving; or 3)

demanding, requesting and receiving any gift, present, share, percentage, or benefit for oneself
or for any other person, in connection with any contract or transaction between the government
and any other party, wherein a public officer in an official capacity has to intervene under the
law. Each of these modes of committing the offense is distinct and different from one another.
Proof of existence of any of them suffices to warrant conviction.[31]
The Sandiganbayan viewed the case as one, the resolution of which hinged primarily on
the matter of credibility. It found Superficial and her testimony worthy of credence, that
petitioner demanded grease money as a condition for the release of the final payment to L.S.
Gamotin. Aside from the demand made by petitioner, the Sandiganbayan likewise concluded
that, indeed, she received the grease money through Venturanza. Therefore, petitioner was
convicted both for demanding and receiving grease money.
We find no cogent reason to disturb the aforesaid conclusions.
Well-settled is the rule that factual findings of the Sandiganbayan are conclusive upon
this Court[32] save in the following cases: 1) the conclusion is a finding grounded entirely on
speculation, surmise and conjecture; 2) the inference made is manifestly an error or founded on
a mistake; 3) there is grave abuse of discretion; 4) the judgment is based on misapprehension of
facts; 5) the findings of fact are premised on a want of evidence and are contradicted by
evidence on record;[33] and 6) said findings of fact are conclusions without citation of specific
evidence on which they are based.[34] The instant case does not fall under any of the foregoing
exceptions.
The assessment of the credibility of a witness is primarily the function of a trial court,
which had the benefit of observing firsthand the demeanor or deportment of the witness. [35] It is
within the discretion of the Sandiganbayan to weigh the evidence presented by the parties, as
well as to accord full faith to those it regards as credible and reject those it considers perjurious
or fabricated.[36] Between the Sandiganbayan and this Court, the former was concededly in a
better position to determine whether or not a witness was telling the truth.[37]
Petitioner contends that it was improbable for her to have demanded the grease money
from Superficial, when she could have talked directly to the contractor himself. She insists that
Superficial was never a party to the transaction and that Engr. Gamotin was the one who
personally facilitated the full payment of the municipalitys unpaid obligation.
This contention does not persuade. As held in Preclaro v. Sandiganbayan,[38] it is

irrelevant from whom petitioner demanded her percentage share of the project cost whether
from the contractor himself or from the latters representative. That petitioner made such a
demand is all that is required by Section 3(b) of R.A. No. 3019, and this element has been
sufficiently established by the testimony of Superficial.[39]
Notwithstanding her claim that the prosecution failed to present a special power of
attorney to show Superficials authority to represent L.S. Gamotin, petitioner admitted that it
was Superficial (or her husband) who received the three checks representing full payment of the
municipalitys obligation. Moreover, although the checks were issued to L.S. Gamotin, the
deposit slip showed that they were deposited by Venturanza to the account of Superficial. Thus,
contrary to petitioners contention, the evidence clearly shows that Superficial was not a stranger
to the transaction between the municipality and L.S. Gamotin, for she, in fact, played an
important role in the receipt of the final payment of the governments obligation. It was not,
therefore, impossible for petitioner to have demanded the grease money from Superficial, for
after all, it was the latter who received the proceeds of the final payment. This was bolstered by
the fact that the P162,400.00 check in the name of Venturanza was encashed by him on the
same day that he deposited the three checks. If indeed the amount given to Venturanza was in
the form of a loan to finance his trip to Australia, why was the grant of the loan dependent on
the receipt of the final payment to L.S. Gamotin? [40] We cannot fathom how Superficial could
lend money out of the proceeds of the checks which admittedly were received by her not in her
own capacity but for and on behalf of another person (L.S. Gamotin). The only plausible
explanation is that the amount given to Venturanza was grease money taken from the proceeds
of the checks issued by the municipality.
In holding that petitioner and Venturanza conspired in committing the offense, we agree with
the Sandiganbayan that the circumstances enumerated above point to the culpability of the
accused. Admittedly, there was no direct evidence showing that petitioner demanded and
received the money but the testimony of Superficial, corroborated by the documentary evidence
and the admissions of the witnesses for the defense, sufficiently establishes that Venturanza
received the money upon orders of petitioner.
The sad reality in cases of this nature is that no witness can be called to testify since no
third party is ordinarily involved to witness the same. Normally, the only persons present are the
ones who made the demand and on whom the demand was made. [41] In short, like bribery, the
giver or briber is usually the only one who can provide direct evidence of the commission of
this crime.[42] While it is true that entrapment has been a tried and tested method of trapping and
capturing felons in the act of committing clandestine crimes [43] like the instant case, we cannot
fault Superficial in not resorting to this method because of the position occupied by petitioner
during that time, as well as the power attached to her office. This is especially true in the instant
case as the person who made the demand assigned another person to receive the grease money;
and ordered that the check be issued in the name of another person.
One final note. Proof beyond reasonable doubt does not mean evidence that which
produces absolute certainty; only moral certainty is required or that degree of proof which
produces conviction in an unprejudiced mind. [44] We find that such requirement has been met in
the instant case.
WHEREFORE, premises considered, the petition is hereby DENIED for lack of merit.
The Decision of the Sandiganbayan dated January 28, 2005 in Criminal Case No. 27434
is AFFIRMED.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, G.R. No. 177752

Appellant,
Present:
PUNO, C.J., Chairperson,

CARPIO,
- v e r s u s - CORONA,
LEONARDO-DE CASTRO and
BRION, JJ.*
ROBERTO ABAY y TRINIDAD,

Appellee. Promulgated:
February 24, 2009
x--------------------------------------------------x
DECISION
CORONA, J.:
On March 8, 2000, appellant Roberto Abay y Trinidad was charged with rape in relation to
Section 5(b), Article III of RA 7610 in the Regional Trial Court (RTC) of Manila, Branch
4[1] under the following Information:
That sometime in December 1999, in the City of Manila, Philippines, [appellant] by
means of force and intimidation, did then and there willfully, unlawfully and
knowingly commit sexual abuse and lascivious conduct against [AAA], a minor, 13
years of age, by then and there kissing her breast and whole body, lying on top of her
and inserting his penis into her vagina, thus succeeded in having carnal knowledge of
her, against her will and consent thereafter threatening to kill her should she report the
incident, thereby gravely endangering her survival and normal growth and
development, to the damage and prejudice of [AAA].
CONTRARY TO LAW.
Appellant pleaded not guilty during arraignment.
During trial, the prosecution presented AAA, her mother BBB and expert witness Dr. Stella
Guerrero-Manalo of the Child Protection Unit of the Philippine General Hospital as its
witnesses.
AAA testified that appellant, her mothers live-in partner, had been sexually abusing her since
she was seven years old. Whenever her mother was working or was asleep in the evening,
appellant would threaten her with a bladed instrument[2] and force her to undress and engage in
sexual intercourse with him.
BBB corroborated AAAs testimony. She testified that she knew about appellants
dastardly acts. However, because he would beat her up and accuse AAA of lying whenever she
confronted him, she kept her silence. Thus, when she caught appellant in the act of molesting
her daughter on December 25, 1999, she immediately proceeded to the police station and
reported the incident.
According to Dr. Guerrero-Manalo, AAA confided to her that appellant had been sexually
abusing her for six years. This was confirmed by AAAs physical examination indicating prior
and recent penetration injuries.
The defense, on the other hand, asserted the incredibility of the charge against appellant.
Appellants sister, Nenita Abay, and appellants daughter, Rizza, testified that if appellant had
really been sexually abusing AAA, the family would have noticed. The rooms of their house
were divided only by -inch thick plywood walls that did not even reach the ceiling. Thus, they
should have heard AAAs cries. Moreover, Nenita and Rizza claimed that they often caught
AAA and her boyfriend in intimate situations.
According to the RTC, one wrongly accused of a crime will staunchly defend his
innocence. Here, appellant kept his silence which was contrary to human nature. On the other
hand, AAA straightforwardly narrated her horrifying experience at the hands of appellant. The
RTC concluded that appellant had indeed sexually abused AAA. A young girl would not have
exposed herself to humiliation and public scandal unless she was impelled by a strong desire to
seek justice.[3]
In a decision dated November 25, 2003, [4] the RTC found appellant guilty beyond
reasonable doubt of the crime of rape:
WHEREFORE, finding [appellant] Roberto Abay y Trinidad guilty beyond
reasonable doubt of committing the crime of rape under Article 335 of the Revised
Penal Code in relation to Section 5, Article III of RA 7610 against [AAA], the Court
imposes upon him the death penalty,[5] and to pay private complainant moral damages
in the amount of Fifty Thousand (P50,000) Pesos.
SO ORDERED.
The Court of Appeals (CA), on intermediate appellate review,[6] affirmed the findings of
the RTC but modified the penalty and award of damages.
In view of the enactment of RA 8353[7] and RA 9346,[8] the CA found appellant guilty
only of simple rape and reduced the penalty imposed to reclusion perpetua. Furthermore, in
addition to the civil indemnity ex delicto (which is mandatory once the fact of rape is proved)
[9]
granted by the RTC, it awarded P50,000 as moral damages and P25,000 as exemplary
damages. Moral damages are automatically granted in rape cases without need of proof other
than the commission of the crime[10] while exemplary damages are awarded by way of example
and in order to protect young girls from sexual abuse and exploitation.[11]
We affirm the decision of the CA with modifications.
Under Section 5(b), Article III of RA 7610[12] in relation to RA 8353,[13] if the victim of
sexual abuse[14] is below 12 years of age, the offender should not be prosecuted for sexual abuse
but for statutory rape under Article 266-A(1)(d) of the Revised Penal Code [15] and penalized
with reclusion perpetua.[16] On the other hand, if the victim is 12 years or older, the offender
should be charged with either sexual abuse[17] under Section 5(b) of RA 7610 or rape under
Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot
be accused of both crimes[18] for the same act because his right against double jeopardy will be
prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act.
[19]
Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under
Section 48 of the Revised Penal Code (on complex crimes), [20] a felony under the Revised Penal
Code (such as rape) cannot be complexed with an offense penalized by a special law.[21]
In this case, the victim was more than 12 years old when the crime was committed
against her. The Information against appellant stated that AAA was 13 years old at the time of
the incident. Therefore, appellant may be prosecuted either for violation of Section 5(b) of RA
7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. While the
Information may have alleged the elements of both crimes, the prosecutions evidence only
established that appellant sexually violated the person of AAA through force and
intimidation[22] by threatening her with a bladed instrument and forcing her to submit to his
bestial designs. Thus, rape was established.[23]
Indeed, the records are replete with evidence establishing that appellant forced AAA to
engage in sexual intercourse with him on December 25, 1999. Appellant is therefore found
guilty of rape under Article 266-A(1)(a) of the Revised Penal Code and sentenced to reclusion
perpetua. Furthermore, to conform with existing jurisprudence, he is ordered to pay
AAA P75,000 as civil indemnity ex-delicto[24] and P75,000 as moral damages.[25]
WHEREFORE, the January 18, 2007 decision of the Court of Appeals in CA-G.R. CR-H.C.
No. 01365 is hereby AFFIRMED WITH MODIFICATION. Appellant Roberto Abay y
Trinidad is hereby found GUIILTY of simple rape and is sentenced to suffer the penalty
of reclusion perpetua. He is further ordered to pay AAA P75,000 as civil indemnity ex-
delicto, P75,000 as moral damages and P25,000 as exemplary damages.
Costs against appellant.
SO ORDERED.
G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.

C. Manalo for defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B before the
Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the said case reads as follows (p.
47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the offended party,
accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria St.,
Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, above
named accused with lewd designs and by the use of a Batangas knife he conveniently provided himself for
the purpose and with threats and intimidation, did, then and there wilfully, unlawfully and feloniously lay with
and succeeded in having sexual intercourse with Cristina S. Abayan against her will and without her
consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses for the
People testified and the exhibits were formally offered and admitted, the prosecution rested its case. Thereafter, the
defense opted not to present any exculpatory evidence and instead filed a Motion to Dismiss. On August 5, 1985,
the trial court rendered its decision, the dispositive portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the crime
of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating circumstances of
dwelling and nightime (sic) with no mitigating circumstance to offset the same, and considering the
provisions of the Indeterminate Sentence Law, imposes on accused an imprisonment of TEN (10) YEARS
and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to
indemnify CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary
imprisonment in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the Court of
Appeals rendered its decision, the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the crime of
rape, and consequently, sentenced to suffer imprisonment of reclusion perpetua and to indemnify the victim
in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and
forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in
conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at
Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just
brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left, she knocked
at the door of her boarding house (p. 5, ibid). All of a sudden, somebody held her and poked a knife to her
neck. She then recognized appellant who was a frequent visitor of another boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which led to
the first floor was locked from the inside, appellant forced complainant to use the back door leading to the
second floor (p. 77, ibid). With his left arm wrapped around her neck and his right hand poking a "balisong"
to her neck, appellant dragged complainant up the stairs (p. 14, ibid). When they reached the second floor,
he commanded her to look for a room. With the Batangas knife still poked to her neck, they entered
complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand holding
the knife, appellant undressed himself. He then ordered complainant to take off her clothes. Scared, she
took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in
her vagina. She followed his order as he continued to poke the knife to her. At said position, however,
appellant could not fully penetrate her. Only a portion of his penis entered her as she kept on moving (p.
23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this position, only a small part
again of his penis was inserted into her vagina. At this stage, appellant had both his hands flat on the floor.
Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition.
When she saw him inside the room, she ran to another room. Appellant again chased her. She fled to
another room and jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters in front of the boarding
house, and knocked on the door. When there was no answer, she ran around the building and knocked on
the back door. When the policemen who were inside the building opened the door, they found complainant
naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her, took off his jacket and
wrapped it around her. When they discovered what happened, Pat. Donceras and two other policemen
rushed to the boarding house. They heard a sound at the second floor and saw somebody running away.
Due to darkness, they failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was
physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate
(Exhibit "A") which states:
Physical Examination Patient is fairly built, came in with loose clothing with no under-clothes;
appears in state of shock, per unambulatory.
PE Findings Pertinent Findings only.

Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with prominent nipples; linear abrasions below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal area or over the

vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen intact; no
laceration fresh and old noted; examining finger can barely enter and with difficulty; vaginal canal
tight; no discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital
inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor, truth and
validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not
sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of fabrication,
the inconsistencies in their testimonies may in fact be justifiably considered as manifestations of truthfulness on
material points. These little deviations also confirm that the witnesses had not been rehearsed. The most candid
witnesses may make mistakes sometimes but such honest lapses do not necessarily impair their intrinsic credibility
(People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the
prosecution witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such
spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158
SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication of untruthfulness and lack
of spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged
inconsistencies deserves a little discussion which is, the testimony of the victim that the accused asked her to hold
and guide his penis in order to have carnal knowledge of her. According to the accused, this is strange because "this
is the only case where an aggressor's advances is being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim
ended there. The victim testified further that the accused was holding a Batangas knife during the aggression. This
is a material part of the victim's testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the
credibility of witnesses should be accorded the highest respect because it has the advantage of observing the
demeanor of witnesses and can discern if a witness is telling the truth (People v. Samson, G.R. No. 55520, August
25, 1989). We quote with favor the trial court's finding regarding the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be desired as to the
sincerity of the offended party in her testimony before the court. Her answer to every question profounded
(sic), under all circumstances, are plain and straightforward. To the Court she was a picture of supplication
hungry and thirsty for the immediate vindication of the affront to her honor. It is inculcated into the mind of
the Court that the accused had wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was
committed provided her testimony is clear and free from contradiction and her sincerity and candor, free from
suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-
88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400).
The victim in this case did not only state that she was raped but she testified convincingly on how the rape was
committed. The victim's testimony from the time she knocked on the door of the municipal building up to the time
she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the
medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that
the abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks,
circumscribed hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and tender vulva,
are conclusive proof of struggle against force and violence exerted on the victim (pp. 52-53, Rollo). The trial court
even inspected the boarding house and was fully satisfied that the narration of the scene of the incident and the
conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of both
accused and offended party without the slightest difficulty, even in the manner as narrated. The partitions of
every room were of strong materials, securedly nailed, and would not give way even by hastily scaling the
same.
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No. L-
48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the ground which was
correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to a frightened individual
being pursued. Common experience will tell us that in occasion of conflagration especially occuring (sic) in
high buildings, many have been saved by jumping from some considerable heights without being injured.
How much more for a frightened barrio girl, like the offended party to whom honor appears to be more
valuable than her life or limbs? Besides, the exposure of her private parts when she sought assistance from
authorities, as corroborated, is enough indication that something not ordinary happened to her unless she is
mentally deranged. Sadly, nothing was adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her having been rendered entirely naked by
appellant and that even in her nudity, she had to run away from the latter and managed to gain sanctuary in
a house owned by spouses hardly known to her. All these acts she would not have done nor would these
facts have occurred unless she was sexually assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to corroborate the allegations
in the complaint and the non-presentation of the medico-legal officer who actually examined the victim. Suffice it to
say that it is up to the prosecution to determine who should be presented as witnesses on the basis of its own
assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v.
Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-legal officer who actually
examined the victim, the trial court stated that it was by agreement of the parties that another physician testified
inasmuch as the medico-legal officer was no longer available. The accused did not bother to contradict this
statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face. Some
were not even substantiated and do not, therefore, merit consideration. We are convinced that the accused is guilty
of rape. However, We believe the subject matter that really calls for discussion, is whether or not the accused's
conviction for frustrated rape is proper. The trial court was of the belief that there is no conclusive evidence of
penetration of the genital organ of the victim and thus convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman
under any of the following circumstances:
1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in
the two next preceding paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law
Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same 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.
Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime
of rape. Our concern now is whether or not the frustrated stage applies to the crime of rape.
1wphi1
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would
produce the felony and (2) that the felony is not produced due to causes independent of the perpetrator's will. In the
leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted
and frustrated felonies which is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime
by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which
should produce the crime. In other words, to be an attempted crime the purpose of the offender must be
thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when
he has performed all of the acts which should produce the crime as a consequence, which acts it is his
intention to perform. If he has performed all of the acts which should result in the consummation of the crime
and voluntarily desists from proceeding further, it can not be an attempt. The essential element which
distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or
extraneous cause or agency between the beginning of the commission of the crime and the moment when
all of the acts have been performed which should result in the consummated crime; while in the former there
is such intervention and the offender does not arrive at the point of performing all of the acts which should
produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his
purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing
more is left to be done by the offender, because he has performed the last act necessary to produce the
crime. Thus, the felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v.
Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores,
G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape,
perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the
labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant
conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil.
559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution
was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into
account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is
hardly conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50 Phil. 998 [1927] where We
found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of
the offended party. However, it appears that this is a "stray" decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic
Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is
committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated
rape is a dead provision. The Eria case, supra, might have prompted the law-making body to include the crime of
frustrated rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court
relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a
concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party the answer as to
whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr.
Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was penetration or
not. It is true, and the Court is not oblivious, that conviction for rape could proceed from the uncorroborated
testimony of the offended party and that a medical certificate is not necessary (People v. Royeras People v.
Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the instant case.
The testimony of the offended party is at variance with the medical certificate. As such, a very disturbing
doubt has surfaced in the mind of the court. It should be stressed that in cases of rape where there is a
positive testimony and a medical certificate, both should in all respect, compliment each other, for otherwise
to rely on the testimony alone in utter disregard of the manifest variance in the medical certificate, would be
productive of mischievous results.
The alleged variance between the testimony of the victim and the medical certificate does not exist. On the contrary,
it is stated in the medical certificate that the vulva was erythematous (which means marked by abnormal redness of
the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamora did not rule
out penetration of the genital organ of the victim. He merely testified that there was uncertainty whether or not there
was penetration. Anent this testimony, the victim positively testified that there was penetration, even if only partially
(pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply, or what act do you referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's
testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R.
No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987,
154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and is not an indispensable element in
the prosecution of this case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused because after
a thorough review of the records, We find the evidence sufficient to prove his guilt beyond reasonable doubt of the
crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the
use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated the
aggravating circumstances of dwelling and nighttime. Thus, the proper imposable penalty is death. In view, however,
of Article 111, Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-
70, February 9, 1989, that the cited Constitutional provision did not declare the abolition of the death penalty but
merely prohibits the imposition of the death penalty, the Court has since February 2, 1987 not imposed the death
penalty whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single
indivisible penalty under Article 335, paragraph 3, is imposed regardless of any mitigating or aggravating
circumstances (in relation to Article 63, paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713,
March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People
v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby
found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion perpetua as well as to
indemnify the victim in the amount of P30,000.00.
SO ORDERED.
G.R. No. 211002 January 21, 2015
RICHARD RICALDE, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
LEONEN, J.:
Even men can become victims of rape.
Before us is a criminal case for rape through sexual assault committed against a 10-year-old boy. Accused Richard
Ricalde (Ricalde) was charged with rape as described under the second paragraph of Section 266-A of the Revised
Penal Code, committed "[b ]y any person who, under any of the circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of another person." 1
This is a Petition for Review assailing the Court of Appeals August 28, 2013 Decision affirming Ricaldes conviction
2 3
for rape through sexual assault and January 15, 2014 Resolution denying reconsideration.
4
The Provincial Prosecutor of Bian, Laguna filed an Information charging Ricalde of rape through sexual assault:
That on or about January 31, 2002, in the Municipality of Sta. Rosa, Province of Laguna, Philippines, and within the
jurisdiction of this Honorable Court, accused Richard Ricalde, prompted with lewd design, did then and there
willfully, unlawfully and feloniously inserting [sic] his penis into the anus of XXX who was then ten (10) years of age
against his will and consent, to his damage and prejudice.
CONTRARY TO LAW. 5
Ricalde pleaded not guilty during his arraignment on August 21, 2002. The prosecution presented the victim
6
(XXX), his mother, and the medico-legal as witnesses, while the defense presented Ricalde as its sole witness.
7 8
The facts as found by the lower courts follow.
On January 30, 2002, XXX requested his mother to pick up Ricalde at McDonalds Bel-Air, Sta. Rosa at past 8:00
p.m. Ricalde, then 31 years old, is a distant relative and textmate of XXX, then 10 years old.
9 10 11
After dinner, XXXs mother told Ricalde to spend the night at their house as it was late. He slept on the sofa while
12
XXX slept on the living room floor. 13
It was around 2:00 a.m. when XXX awoke as "he felt pain in his anus and stomach and something inserted in his
anus." He saw that Ricalde "fondled his penis." When Ricalde returned to the sofa, XXX ran toward his mothers
14 15
room to tell her what happened. He also told his mother that Ricalde played with his sexual organ.
16 17
XXXs mother armed herself with a knife for self-defense when she confronted Ricalde about the incident, but he
remained silent. She asked him to leave.
18 19
XXXs mother then accompanied XXX to the barangay hall where they were directed to report the incident to the
Sta. Rosa police station. The police referred them to the municipal health center for medical examination. Dr. Roy
20 21
Camarillo examined XXX and found no signs of recent trauma in his anal orifice that was also "NEGATIVE for
22 23
[s]permatozoa." 24
On February 4, 2002, XXX and his mother executed their sworn statements at the Sta. Rosa police station, leading
to the criminal complaint filed against Ricalde. 25
Ricalde denied the accusations. He testified that he met XXX during the 2001 town fiesta of Calaca, Batangas and
26
learned that XXXs mother is the cousin of his cousin Arlan Ricalde. He and XXX became textmates, and XXX
27
invited him to his house. On January 30, 2002, XXXs mother picked him up to sleep at their house. He slept at
28 29
10:00 p.m. on the living room sofa while XXX slept on the floor. He denied the alleged rape through sexual
30
assault. 31
The Regional Trial Court in its Decision dated June 20, 2011 found Ricalde guilty beyond reasonable doubt of rape
32
through sexual assault:
WHEREFORE, this Court finds accused Richard Ricalde guilty beyond reasonable doubt of the crime of rape by
sexual assault and, accordingly, sentences him to suffer the penalty of imprisonment ranging from four (4) years,
two (2) months and one (1) day of prision correccional as minimum, to eight (8) years of prision mayor as maximum.
Accused is ordered to pay [XXX] the sums of 50,000.00 as moral damages and 50,000.00 as civil indemnity.
SO ORDERED. 33
The Court of Appeals in its Decision dated August 28, 2013 affirmed the conviction with the modification of lowering
34
the amounts of damages awarded:
WHEREFORE, the Decision dated 20 June 2011 of Branch 34 of the Regional Trial Court of Calamba, Laguna, in
Crim. Case No. 11906-B, is AFFIRMED but with MODIFICATION as to the award of damages. Accused-appellant
RICHARD RICALDE is ordered to pay the victim civil indemnity in the amount of Thirty Thousand (30,000.00) Pesos
and moral damages likewise in the amount of Thirty Thousand (30,000.00) Pesos, both with interest at the legal rate
of six (6%) percent per annum from the date of finality of this judgment until fully paid. 35
Ricalde filed this Petition praying for his acquittal. 36
Petitioner argues the existence of reasonable doubt in his favor. First, the medico-legal testified that he found "no
physical signs or external signs of recent trauma [in XXXs] anus," or any trace of spermatozoa. He contends that
37 38
physical evidence "ranks high in [the courts] hierarchy of trustworthy evidence." 39

Second, XXX did not categorically say that a penis was inserted into his anal orifice, or that he saw a penis or any
object being inserted into his anal orifice. XXX was also able to immediately push him away. Thus, no push and
40 41
pull movement happened that would explain XXXs alleged stomach ache. Petitioner submits that the alleged
42
stomach ache was an attempt to aggravate the charge against him. 43
Petitioner argues that XXXs inconsistent testimony raises reasonable doubt on his guilt. XXX claimed that he
44
immediately pushed petitioner away, but in another instance, he testified as follows: "I felt that he was inserting his
penis inside my anus because I was even able to hold his penis. He was also playing with my penis." XXX also 45
stated in his salaysay that "the penis reached only the periphery of his anal orifice." 46
Third, XXX testified that after he had pushed petitioner away, he saw that petitioner was wearing pants with the
zipper open. Petitioner submits that performing anal coitus while wearing pants with an open zipper poses a
47
challenge the risk of injuring the sexual organ or having pubic hair entangled in the zipper. Petitioner argues 48
that the court must consider every circumstance favoring the innocence of an accused. 49
Assuming he committed an offense, petitioner contends that the court should have applied the "variance doctrine" in
People v. Sumingwa, and the court would have found him guilty for the lesser offense of acts of lasciviousness
50
under Article 336 of the Revised Penal Code. The petition then enumerated circumstances showing possible
51
homosexual affections between petitioner and XXX. These include the fact that they were textmates and that
52
petitioner played with XXXs penis. 53
Petitioner argues that this masturbation could have caused an irritation that XXX mistook as penetration. XXX 54
could also have mistaken the "overreaching fingers as a male organ trying to enter his [anus]." Assuming these 55
acts took place, these would only be considered as acts of lasciviousness. 56
The People of the Philippines counters that the prosecution proved beyond reasonable doubt all elements of the
crime charged.
The Comment discussed that it is neither improbable nor contrary to human experience that XXXs mother allowed
57
her son to be left alone with a stranger. Petitioner was not a complete stranger, and she could not have foreseen
58
such abuse since "rape by sexual assault or any form of sexual abuse of a boy by a grown man is fairly uncommon
in our culture." 59
Petitioners reliance on the medico-legals findings deserves scant consideration. The Comment quoted People v.
60
Penilla in that "[a] medical examination of the victim is not indispensable in a prosecution for rape inasmuch as the
61
victims testimony alone, if credible, is sufficient to convict the accused of the crime." In any case, the medico-legal
62
testified on the sphincters flexibility and how an insertion into the anal orifice would not necessarily cause injury. 63
Lastly, the prosecution established all elements of rape through sexual assault based on XXXs clear and
categorical testimony. Petitioners defense of mere denial cannot outweigh positive testimony. Consequently,
64 65
petitioners contention that the incident only amounts to acts of lasciviousness lacks merit. 66
The issue before us for resolution is whether the prosecution proved beyond reasonable doubt petitioner Richard
Ricaldes guilt for the crime of rape through sexual assault.
We affirm petitioners conviction with modification on the penalty imposed.
The Anti-Rape Law of 1997 classified rape as a crime against persons and amended the Revised Penal Code to
67 68
include Article 266-A on rape through sexual assault:
Article 266A. Rape; When and How Committed.Rape is Committed
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of
the circumstances mentioned above be present;
2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an
act of sexual assault by inserting his penis into another persons mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another person. (Emphasis supplied)
Rape under the second paragraph of Article 266-A is also known as "instrument or object rape," "gender-free
69
rape," or "homosexual rape." The gravamen of rape through sexual assault is "the insertion of the penis into
70 71
another persons mouth or anal orifice, or any instrument or object, into another persons genital or anal orifice." 72
Jurisprudence holds that "the findings of the trial court, its calibration of the testimonies of the witnesses, and its
assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded
respect if not conclusive effect." 73
The trial court found that XXXs "straightforward, unequivocal and convincing testimony" sufficiently proved that
74
petitioner committed an act of sexual assault by inserting his penis into XXXs anal orifice. There was no showing
75
of ill motive on the part of XXX to falsely accuse petitioner. The Court of Appeals accorded great weight to the trial
76
courts findings and affirmed petitioners conviction. 77
No cogent reason exists for this court to overturn the lower courts findings.
First, petitioners argument highlighting alleged inconsistencies in XXXs testimony fails to convince.
In a long line of cases, this court has given full weight and credit to the testimonies of child victims. Their "[y]outh
78
and immaturity are generally badges of truth and sincerity." XXX, then only 10 years old, had no reason to concoct
79
lies against petitioner. 80
This court has also held that "[l]eeway should be given to witnesses who are minors, especially when they are
relating past incidents of abuse." 81
Petitioner contends that XXX did not categorically say that a penis was inserted into his anal orifice, or that he saw a
penis or any object being inserted into his anal orifice.
This contradicts petitioners earlier statement in his appellants brief that "[a]lthough it is true that the Supreme
82
Court, in a long line of cases, did not rule out the possibility of rape in cases where the victim remained physically
intact at the time she or he was physically examined, still, it bears stressing that in the instant case, the private
complainant testified that the accused-appellants penis fully penetrated his anus." 83
The trial court also quoted portions of the transcript of XXXs testimony in that he "felt something was inserted in
[his] anus." 84
Q: That early morning of January 31, 2002, while you were sleeping at your house, do you recall any
unusual incident that happened to you?
A: Yes sir, I felt something was inserted in my anus.
....
Q: When you said that you felt something was inserted in your anus, what did you do?
A: I felt that he was inserting his penis inside my anus because I was even able to hold his penis. He was
also playing with my penis.
Q: So when you said he was inserting his penis to your anus and he was even playing with your private part,
who is this person you are referring to as "he"?
A: Richard, sir.85
In People v. Soria, this court discussed that a victim need not identify what was inserted into his or her genital or
86
anal orifice for the court to find that rape through sexual assault was committed:
We find it inconsequential that "AAA" could not specifically identify the particular instrument or object that was
inserted into her genital. What is important and relevant is that indeed something was inserted into her vagina. To
require "AAA" to identify the instrument or object that was inserted into her vagina would be contrary to the
fundamental tenets of due process. 87
Second, petitioners reliance on the medico-legals finding of no recent trauma in XXXs anal orifice, or any trace of
spermatozoa, lacks merit. The absence of spermatozoa in XXXs anal orifice does not negate the possibility of an
erection and penetration. This result does not contradict the positive testimony of XXX that the lower courts found
credible, natural, and consistent with human nature.
This court has explained the merely corroborative character of expert testimony and the possibility of convictions for
rape based on the victims credible lone testimony. 88
In any case, the medico-legal explained that his negative finding of trauma in the anal orifice does not remove the
possibility of an insertion considering the flexibility of the sphincter:
Q: Now, a while ago you testified that he was sodomized and your findings states [sic] that you did not find any
congestion or abrasion, can you explain to this court why you stated in your findings that you did not find any
congestion or abrasion?
A: Again, based on my examination[,] there were no external signs of recent trauma to the anus. It should be
realized that the sphincter, that is the particular portion of the anus controlling the bowel movement, it exhibits a
certain flexibility such that it can resist any objected [sic] inserted and that area is very vascular, meaning to say, it is
rich in blood supply, such that any injuries would be healed in 24 hours or less than 24 hours, sir? 89
Lastly, we address petitioners invocation of the "variance doctrine" citing People v. Sumingwa. Section 4 in relation
90
to Section 5 of Rule 120 of the Rules on Criminal Procedure provides for the "variance doctrine":
SEC. 4. Judgment in case of variance between allegation and proof.When there is variance between the offense
charged in the complaint or information and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense
charged, or of the offense charged which is included in the offense proved.
SEC. 5. When an offense includes or is included in another.An offense charged necessarily includes the offense
proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential
ingredients of the former continue or form part of those constituting the latter.
In Sumingwa, the accused in Criminal Case Nos. 1649 and 1654 was charged with qualified rape but was convicted
for the lesser offense of acts of lasciviousness committed against a child under Article III, Section 5(b) of Republic
Act No. 7610 since "there was no penetration, or even an attempt to insert [the accuseds] penis into [the victims]
91
vagina."92
In the instant case, no variance exists between what was charged and what was proven during trial. The
prosecution established beyond reasonable doubt all elements of the crime of rape through sexual assault.
XXX testified that he "felt something was inserted [into his] anus." The slightest penetration into ones sexual organ
93
distinguishes an act of lasciviousness from the crime of rape. People v. Bonaagua94 discussed this distinction:
It must be emphasized, however, that like in the crime of rape whereby the slightest penetration of the male organ or
even its slightest contact with the outer lip or the labia majora of the vagina already consummates the crime, in like
manner, if the tongue, in an act of cunnilingus, touches the outer lip of the vagina, the act should also be considered
as already consummating the crime of rape through sexual assault, not the crime of acts of lasciviousness.
Notwithstanding, in the present case, such logical interpretation could not be applied. It must be pointed out that the
victim testified that Ireno only touched her private part and licked it, but did not insert his finger in her vagina. This
testimony of the victim, however, is open to various interpretation, since it cannot be identified what specific part of
the vagina was defiled by Ireno. Thus, in conformity with the principle that the guilt of an accused must be proven
beyond reasonable doubt, the statement cannot be the basis for convicting Ireno with the crime of rape through
sexual assault. (Emphasis supplied)
95
People v. Bonaagua considers a womans private organ since most if not all existing jurisprudence on rape involves
a woman victim. Nevertheless, this interpretation can apply by analogy when the victim is a man in that the slightest
penetration to the victims anal orifice consummates the crime of rape through sexual assault.
The gravamen of the crime is the violation of the victims dignity. The degree of penetration is not important. Rape is
an "assault on human dignity." 96
People v. Quintos discussed how rape causes incalculable damage on a victims dignity, regardless of the manner
97
of its commission:
The classifications of rape in Article 266-A of the Revised Penal Code are relevant only insofar as these define the
manners of commission of rape. However, it does not mean that one manner is less heinous or wrong than the
other. Whether rape is committed by nonconsensual carnal knowledge of a woman or by insertion of the penis into
the mouth of another person, the damage to the victims dignity is incalculable. Child sexual abuse in general has
been associated with negative psychological impacts such as trauma, sustained fearfulness, anxiety, self-
destructive behavior, emotional pain, impaired sense of self, and interpersonal difficulties. Hence, one experience of
sexual abuse should not be trivialized just because it was committed in a relatively unusual manner.
"The prime purpose of [a] criminal action is to punish the offender in order to deter him and others from committing
the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social
order." Crimes are punished as retribution so that society would understand that the act punished was wrong.
Imposing different penalties for different manners of committing rape creates a message that one experience of rape
is relatively trivial or less serious than another. It attaches different levels of wrongfulness to equally degrading acts.
Rape, in whatever manner, is a desecration of a persons will and body. In terms of penalties, treating one manner of
committing rape as greater or less in heinousness than another may be of doubtful constitutionality.
However, the discriminatory treatment of these two acts with the same result was not raised in this case.
Acknowledging that every presumption must be accorded in favor of accused in criminal cases, we have no choice
but to impose a lesser penalty for rape committed by inserting the penis into the mouth of the victim. (Citations
98
omitted)
We affirm petitioners conviction but modify the penalty imposed by the lower court to the penalty under Article III,
Section 5(b) of Republic Act No. 7610 known as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act": 99
SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or
any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpertua shall be imposed upon the following:
....
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or
subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators
shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case maybe: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period;
(Emphasis supplied)
The Implementing Rules and Regulations of Republic Act No. 7610 defines "lascivious conduct": [T]he intentional
touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with
an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a person.100
In People v. Chingh, the accused was charged with rape "for inserting his fingers and afterwards his penis into the
101
private part of his minor victim[.]" The Court of Appeals found the accused guilty of two counts of rape: statutory
102
rape and rape through sexual assault. This court modified the penalty imposed for rape through sexual assault to
103
the penalty provided in Article III, Section 5(b) of Republic Act No. 7610, discussing as follows:
It is undisputed that at the time of the commission of the sexual abuse, VVV was ten (10) years old. This calls for the
application of R.A. No. 7610, or "The Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act," which defines sexual abuse of children and prescribes the penalty therefor in Section 5(b),
Article III, to wit:
....
In this case, the offended party was ten years old at the time of the commission of the offense. Pursuant to the
above-quoted provision of law, Armando was aptly prosecuted under paragraph 2, Article 266-A of the Revised
Penal Code, as amended by R.A. No. 8353, for Rape Through Sexual Assault. However, instead of applying the
penalty prescribed therein, which is prision mayor, considering that VVV was below 12 years of age, and
considering further that Armandos act of inserting his finger in VVVs private part undeniably amounted to lascivious
conduct, the appropriate imposable penalty should be that provided in Section 5 (b), Article III of R.A. No. 7610,
which is reclusion temporal in its medium period.
The Court is not unmindful to the fact that the accused who commits acts of lasciviousness under Article 366, in
relation to Section 5 (b), Article III of R.A. No. 7610, suffers the more severe penalty of reclusion temporal in its
medium period than the one who commits Rape Through Sexual Assault, which is merely punishable by prision
mayor. This is undeniably unfair to the child victim. To be sure, it was not the intention of the framers of R.A. No.
8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children. Despite the
passage of R.A. No. 8353, R.A. No. 7610 is still good law, which must be applied when the victims are children or
those "persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or
protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental
disability or condition." (Emphasis supplied, citations omitted)
104
Thus, "for Rape Through Sexual Assault under paragraph 2, Article 266-A, [the accused Chingh was] sentenced to
suffer the indeterminate penalty of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion
temporal, as minimum, to fifteen (15) years, six (6) months, and twenty (20) days of reclusion temporal, as
maximum." 105
The imposable penalty under Republic Act No. 7610, Section 5(b) "for lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion temporal in its medium period." This penalty is higher than the imposable
penalty of prision correccional for acts of lasciviousness under Article 336 of the Revised Penal Code.
In enacting Republic Act No. 7610, the legislature intended to impose a higher penalty when the victi m is a child.
The fact that XXX was only 10 years old when the incident happened was established by his birth certificate, and
this was admitted by the defense. His age of 10 years old was alleged in the Information. The higher penalty
106 107
under Republic Act No. 7610, as discussed in People v. Chingh, applies in this case.
Having sex with a 10-year-old is child abuse and is punished by a special law (Republic Act No. 7610). It is a
progression from the Revised Penal Code to provide greater protection for children. Justice Velasco suggests that
this is not so. He anchors his view on his interpretation that Republic Act No. 7610 requires a showing that apart
from the actual coerced sexual act on the 10-year-old, the child must also be exploited by prostitution or by other
sexual acts. This view is inaccurate on grounds of verba legis and ratione legis.
The first paragraph of Article III, Section 5 of Republic Act No. 7610 clearly provides that "children . . . who . . . due
to the coercion . . . of any adult . . . indulge in sexual intercourse . . . are deemed to be children exploited in
prostitution and other sexual abuse." The label "children exploited in . . . other sexual abuse" inheres in a child who
has been the subject of coercion and sexual intercourse.
Thus, paragraph (b) refers to a specification only as to who is liable and the penalty to be imposed. The person who
engages in sexual intercourse with a child already coerced is liable.
It does not make sense for the law not to consider rape of a child as child abuse. The proposal of Justice Velasco
implies that there has to be other acts of a sexual nature other than the rape itself that will characterize rape as child
abuse. One count of rape is not enough. Child abuse, in his view, is not yet present with one count of rape.
This is a dangerous calculus which borders on judicial insensitivity to the purpose of the law. If we adopt his view, it
would amount to our collective official sanction to the idea that a single act of rape is not debilitating to a child. That
a single act of rape is not a tormenting memory that will sear into a childs memory, frame his or her view of the
world, rob him or her of the trust that will enable him or her to have full and diverse meaningful interactions with
other human beings. In my view, a single act of sexual abuse to a child, by law, is already reprehensible. Our society
has expressed that this is conduct which should be punishable. The purpose and text of the law already punish that
single act as child abuse.
Rape is rape. Rape of a child is clearly, definitely, and universally child abuse.
Justice Velasco further observes that the right to due process of the accused will be violated should we impose the
penalty under Republic Act No. 7610. I disagree.
The Information was clear about the facts constitutive of the offense. The facts constitutive of the offense will
suggest the crime punishable by law. The principle is that ignorantia legis non excusat. With the facts clearly laid out
in the Information, the law which punishes the offense should already be clear and the accused put on notice of the
charges against him.
Additionally, there is no argument that the accused was not represented by counsel. Clear from the records is the
entry and active participation of his lawyer up to and including this appeal.
On the award of damages, we maintain the amount of 30,000.00 in favor of XXX as a victim of rape through sexual
assault, consistent with jurisprudence.108
This court has stated that "jurisprudence from 2001 up to the present yields the information that the prevailing
amount awarded as civil indemnity to victims of simple rape committed by means other than penile insertion
is P30,000." 109
This statement considered the prevailing situation in our jurisprudence where victims of rape are all
women. However, as in this case, men can also become victims of rape through sexual assault, and this can
1wphi1
involve penile insertion.
WHEREFORE, the Court of Appeals Decision in CA-G.R. C.R. No. 34387 dated August 28, 2013 is AFFIRMED with
MODIFICATION in that for rape through sexual assault under Article 266-A, paragraph 2, accused-appellant Richard
Ricalde is sentenced to suffer the indeterminate penalty of twelve (12) years, ten (10) months and twenty-one (21)
days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion
temporal, as maximum. He is ordered to pay the victim civil indemnity in the amount of P30,000.00 and moral
damages likewise in the amount of P30,000.00, both with interest at the legal rate of 6% per annum from the date of
finality of this judgment until fully paid.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, Promulgated:
Respondent. May 30, 2011
x --------------------------------------------------------------------------------------- x
DECISION
CARPIO, J.:
The Case
This resolves the petition for review of the ruling of the Regional Trial Court
1 2
of Dumaguete City (RTC) finding petitioner Santiago Paera guilty of three counts of Grave
3
Threats, in violation of Article 282 of the Revised Penal Code (RPC).

The Facts
As punong barangay of Mampas, Bacong, Negros Oriental, petitioner

Santiago Paera (petitioner) allocated his constituents use of communal water coming from a
communal tank by limiting distribution to the residents of Mampas, Bacong. The tank sits on a land
located in the neighboring barangay of Mampas, Valencia and owned by complainant
Vicente Darong (Vicente), father of complainant Indalecio Darong (Indalecio). Despite petitioners
scheme, Indalecio continued drawing water from the tank. On 7 April 1999, petitioner
reminded Indalecio of the water distribution scheme and cut Indalecios access.
The following day, petitioner inspected the tank after constituents complained of water
supply interruption. Petitioner discovered a tap from the main line which he promptly disconnected.
To stem the flow of water from the ensuing leak, petitioner, using a borrowed bolo, fashioned a
wooden plug. It was at this point when Indalecio arrived. What happened next is contested by the
parties.
According to the prosecution, petitioner, without any warning, picked-up his bolo and
charged towards Indalecio, shouting Patyon tikaw! (I will kill you!). Indalecio ran for safety,
passing along the way his wife, Diosetea Darong (Diosetea) who had followed him to the water
tank. Upon seeing petitioner, Diosetea inquired what was the matter. Instead of replying, petitioner
shouted Wala koy gipili, bisag babaye ka, patyon tikaw! (I dont spare anyone, even if you are a
woman, I will kill you!). Diosetea similarly scampered and sought refuge in the nearby house of a
relative. Unable to pursue Diosetea, petitioner turned his attention back to Indalecio. As petitioner
chased Indalecio, he passed Vicente, and, recognizing the latter, repeatedly thrust his bolo towards
him, shouting Bisag gulang ka, buk-on nako imo ulo! (Even if you are old, I will crack open your
skull!).
According to petitioner, however, it was Indalecio who threatened him with a bolo, angrily
inquiring why petitioner had severed his water connection. This left petitioner with no choice but to
take a defensive stance using the borrowed bolo, prompting Indalecio to scamper.
Except for Vicente, who was seriously ill, the Darongs testified during trial. Petitioner was the
defenses lone witness.
The Ruling of the Municipal Circuit Trial Court
The 7th Municipal Circuit Trial Court of Valencia-Bacong, Negros Oriental (MCTC) found
petitioner guilty as charged, ordering petitioner to serve time and pay fine for each of the three
counts. The MCTC found the prosecution evidence sufficient to prove the elements of Grave
4
Threats under Article 282, noting that the Darongs persistent water tapping contrary to petitioners
directive must have angered petitioner, triggering his criminal behavior. The MCTC rejected
5
petitioners defense of denial as self-serving and uncorroborated. 6
Petitioner appealed to the RTC, reiterating his defense of denial.
Ruling of the Regional Trial Court
The RTC affirmed the MCTC, sustaining the latters finding on petitioners motive. The RTC
similarly found unconvincing petitioners denial in light of the clear, direct, and consistent
testimonies of the Darongs and other prosecution witnesses. 7
Hence, this appeal.

Abandoning his theory below, petitioner now concedes his liability but only for a single
count of the continued complex crime of Grave Threats. Further, petitioner prays for the dismissal
of the case filed by Vicente as the latters failure to testify allegedly deprived him of his
constitutional right to confront witnesses. Alternatively, petitioner claims he is innocent of the
charges for having acted in defense of the property of strangers and in lawful performance of duty,
justifying circumstances under paragraphs 3 and 5, Article 11 of the RPC. 8
In its Comment, the Office of the Solicitor General (OSG) finds merit in petitioners concession of
liability for the single count of the continued complex crime of Grave Threats. The OSG, however,
rejects petitioners prayer for the dismissal of Vicentes complaint, arguing that petitioners guilt was
amply proven by the prosecution evidence, not to mention that petitioner failed to raise this issue
during trial. Further, the OSG finds the claim of defense of stranger unavailing for lack of unlawful
aggression on the part of the Darongs. Lastly, the OSG notes the absence of regularity in petitioners
performance of duty to justify his conduct.9
The Issue
The question is whether petitioner is guilty of three counts of Grave Threats.
The Ruling of the Court
We rule in the affirmative, deny the petition and affirm the RTC.
Due Process Mischief in Raising
New Issues on Appeal

Although uncommented, petitioners adoption of new theories for the first time before this Court has
not escaped our attention. Elementary principles of due process forbid this pernicious procedural
strategy - it not only catches off-guard the opposing party, it also denies judges the analytical
benefit uniform theorizing affords. Thus, courts generally refuse to pass upon freshly raised
theories. We would have applied this rule here were it not for the fact that petitioners liberty is at
10
stake and the OSG partially views his cause with favor.
Petitioner Liable for Three Counts of Grave Threats
To limit his liability to one count of Grave Threats, petitioner tries to fit the facts of the case to the
concept of continued crime (delito continuado) which envisages a single crime committed through
a series of acts arising from one criminal intent or resolution. To fix the penalty for his supposed
11
single continued crime, petitioner invokes the rule for complex crime under Article 48 of the RPC
imposing the penalty for the most serious crime, applied in its maximum period.
The nature of the crime of Grave Threats and the proper application of the concepts of
continued and complex crimes preclude the adoption of petitioners theory.
Article 282 of the RPC holds liable for Grave Threats any person who shall threaten another with
the infliction upon the person x x x of the latter or his family of any wrong amounting to a crime[.]
This felony is consummated as soon as the threats come to the knowledge of the person threatened. 12
Applying these parameters, it is clear that petitioners threat to kill Indalecio and Diosetea and crack
open Vicentes skull are wrongs on the person amounting to (at the very least) homicide and serious
physical injuries as penalized under the RPC. These threats were consummated as soon
as Indalecio, Diosetea, and Vicente heard petitioner utter his threatening remarks. Having spoken
the threats at different points in time to these three individuals, albeit in rapid succession, petitioner
incurred three separate criminal liabilities.
Petitioners theory fusing his liability to one count of Grave Threats because he only had a single
mental resolution, a single impulse, and single intent to threaten the Darongs assumes a vital fact:
13
that he had foreknowledge of Indalecio, Diosetea, and Vicentes presence near the water tank in the
morning of 8 April 1999. The records, however, belie this assumption. Thus, in the case
of Indalecio, petitioner was as much surprised to see Indalecio as the latter was in seeing petitioner
when they chanced upon each other near the water tank. Similarly, petitioner came
across Diosetea as he was chasing Indalecio who had scampered for safety. Lastly, petitioner
crossed paths with Vicente while running after Indalecio. Indeed, petitioner went to the water tank
not to execute his single intent to threaten Indalecio, Diosetea, and Vicente but to investigate a
suspected water tap. Not having known in advance of the Darongspresence near the water tank at
the time in question, petitioner could not have formed any intent to threaten any of them until
shortly before he inadvertently came across each of them.
The importance of foreknowledge of a vital fact to sustain a claim of continued crime

undergirded our ruling in Gamboa v. Court of Appeals. There, the accused, as here, conceded
14
liability to a lesser crime one count of estafa, and not 124 as charged theorizing that his conduct
was animated by a single fraudulent intent to divert deposits over a period of several months. We
rejected the claim
[f]or the simple reason that [the accused] was not possessed of any fore-knowledge of
any deposit by any customer on any day or occasion and which would pass on to his
possession and control. At most, his intent to misappropriate may arise only when he
comes in possession of the deposits on each business day but not in futuro, since
petitioner company operates only on a day-to-day transaction. As a result, there could
be as many acts of misappropriation as there are times the private respondent
abstracted and/or diverted the deposits to his own personal use and
benefit. x x x x (Emphasis supplied)
15
Similarly, petitioners intent to threaten Indalecio, Diosetea, and Vicente with bodily harm arose
only when he chanced upon each of his victims.
Indeed, petitioners theory holds water only if the facts are altered that is, he
threatened Indalecio, Diosetea, and Vicente at the same place and at the same time. Had this been
true, then petitioners liability for one count of Grave Threats would have rested on the same basis
grounding our rulings that the taking of six roosters or 13 cows found at the same place and taken
16 17
at the same time results in the commission of only one count of theft because
[t]here is no series of acts committed for the accomplishment of different purposes,
but only of one which was consummated, and which determines the existence of only
one crime. The act of taking the roosters [and heads of cattle] in the same place and on
the same occasion cannot give rise to two crimes having an independent existence of
their own, because there are not two distinct appropriations nor two intentions that
characterize two separate crimes. (Emphasis in the original)
18
Having disposed of petitioners theory on the nature of his offense, we see no reason to extensively
pass upon his use of the notion of complex crime to avail of its liberal penalty scheme. It suffices to
state that under Article 48 of the RPC, complex crimes encompass either (1) an act which
constitutes two or more grave or less grave offenses; or (2) an offense which is a necessary means
for committing another and petitioner neither performed a single act resulting in less or less grave
19
crimes nor committed an offense as a means of consummating another.
The Prosecution Proved the Commission
of Grave Threats Against Vicente
We find no reversible error in the RTCs affirmance of the MCTCs ruling, holding petitioner liable
for Grave Threats against Vicente. The prosecutions evidence, consisting of the testimonies
of Indalecio, Diosetea and two other corroborating witnesses, indisputably show petitioner
20
threatening Vicente with death. Vicentes inability to take the stand, for documented medical
21
reason, does not detract from the veracity and strength of the prosecution evidence. Petitioners
22
claim of denial of his constitutional right to confront witnesses is untenable as he had every
opportunity to cross-examine the four prosecution witnesses. No law requires the presentation of
the private complainant as condition for finding guilt for Grave Threats, especially if, as here, there
were other victims and witnesses who attested to its commission against the non-testifying
complainant. Significantly, petitioner did not raise Vicentes non-appearance as an issue during the
trial, indicating that he saw nothing significant in the latters absence.
No Justifying Circumstances Attended Petitioners
Commission of Grave Threats

There is likewise no merit in petitioners claim of having acted to defend[] and protect[] the water
rights of his constituents in the lawful exercise of his office as punong barangay. The defense of
23
stranger rule under paragraph 3, Article 11 of the RPC, which negates criminal liability of
[a]nyone who acts in the defense of the person or rights of a stranger, provided that
the first and second requisites mentioned in the first circumstance of this article are
present and that the person defending be not induced by revenge, resentment or other
evil motive.
requires proof of (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the
means employed to prevent or repel it; and (3) absence of evil motives such as revenge and
resentment. None of these requisites obtain here. Not one of the Darongs committed acts of
24
aggression against third parties rights when petitioner successively threatened them with bodily
harm. Indeed, all of them were performing ordinary, peaceful acts Indalecio was standing near the
water tank, Diosetea was walking towards Indalecio and Vicente was standing in the vegetable
garden a few meters away. With the element of unlawful aggression absent, inquiry on the
reasonableness of the means petitioner used to prevent or repel it is rendered irrelevant. As for the
third requisite, the records more than support the conclusion that petitioner acted with resentment,
borne out of the Darongs repeated refusal to follow his water distribution scheme, causing him to
lose perspective and angrily threaten the Darongs with bodily harm.
Lastly, the justifying circumstance of fulfillment of duty or exercise of office under the
5th paragraph of Article 11 of the RPC lies upon proof that the offense committed was the necessary
consequence of the due performance of duty or the lawful exercise of office. Arguably, petitioner
25
acted in the performance of his duty to ensure delivery of basic services when he barred
26
the Darongs access to the communal water tank. Nevertheless, petitioner exceeded the bounds of
his office when he successively chased the Darongs with a bladed weapon, threatening harm on
their persons, for violating his order. A number of options constituting lawful and due discharge of
his office lay before petitioner and his resort to any of them would have spared him from criminal
27
liability. His failure to do so places his actions outside of the ambit of criminally immune official
conduct. Petitioner ought to know that no amount of concern for the delivery of services justifies
use by local elective officials of violence or threats of violence.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 28 November
2007 of the Regional Trial Court of Dumaguete City, Branch 39.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNULFO

ASTORGA, accused-appellant.
DECISION
PANGANIBAN, J.:
Actual detention or locking up is the primary element of kidnapping. If the evidence

does not adequately prove this element, the accused cannot be held liable for
kidnapping. In the present case, the prosecution merely proved that appellant forcibly
dragged the victim toward a place only he knew. There being no actual detention or
confinement, the appellant may be convicted only of grave coercion.
The Case
The foregoing principle is used by this Court in resolving the appeal of Arnulfo Astorga
challenging the March 31, 1993 Decision of the Regional Trial Court of Tagum, Davao
[1]
convicting him of kidnapping.
In an Information dated March 24, 1992 and docketed as Criminal Case No. 8243,
[2]
Appellant Arnulfo Astorga was charged with violation of Article 267, paragraph 4 of the
Revised Penal Code, allegedly committed as follows:
That on or about December 29, 1991 in the Municipality of Tagum, Province of Davao, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate
intent and by means of force, did then and there wilfully, unlawfully and feloniously kidnap Yvonne
Traya, a minor, 8 years of age, thereby depriving her of her liberty against her will, to the damage
and prejudice of said offended party.
Arraigned on February 24, 1993, Appellant Astorga, duly assisted by his counsel,
pleaded not guilty to the charge. Trial on the merits ensued. The dispositive portion of
[3]
the assailed Decision reads as follows:

[4] [5]
WHEREFORE, premises considered, the guilt of accused ARNULFO ASTORGA having been
proven beyond reasonable doubt, pursuant to Article 267 paragraph 4 of the Revised Penal Code,
[he] is hereby sentenced to Reclusion Perpetua to be served at the National Penitentiary,
[Muntinlupa].
This appeal was filed directly with this Court in view of the penalty imposed. [6]
The Facts
Evidence for the Prosecution
The evidence for the prosecution was narrated in the Decision of the trial court, as
follows:[7]
Prosecution witnesses extant from their testimonies categorically assert that around 6:30 P.M.
children of neighbors were near the store of the grandparents of Yvonne Traya.
Incidentally, there was a brown out that evening hence candle was used. The daughter and nephew
of her aunt Bebeth were quarelling [sic] about the possession of a flashlight until the glass got
lost. Accused or Boy Astorga, went near and asked her daughter Jane what happened. Glenda or
Bebeth grabbed her baby and went home.
Accused told Yvonne to go with him to buy candy. She did not answer and accused immediately
grabbed and hold [sic] her hand. Accused placed his hand on her shoulder and covered his [sic]
mouth.
Yvonne was only eight (8) years old on 29 December 1991 when she was brought by the accused
allegedly to buy candy. Some stores were closed; others were opened. Accused never went inside
the store to buy candy. Instead she [sic] held and dragged Yvonne until they went inside the
compound of Maco Elementary School. They were walking inside the perimeter fence, [while the
accused was] holding closely the child. Later, there being no person around the gate, accused
brought her out to the highway and walked towards the direction of Tagum.
Yvonne stays with her grandparents and so with her parents at Sitio Binuangan, Maco. She asked
him where they were going and accused answered that they were going home. She told him that
they were already on the opposite direction because her grandparents house is at Binuangan, while
their route was going towards Tagum. Indeed, it was an opposite direction. Notwithstanding the
assertion of Yvonne that they were on the wrong direction, accused placed his hands on her
shoulder and dragged her. She cried and protested that she must go home. Accused did not heed her
plea and while she was forced to walk she continued crying.
While accused and Yvonne were walking in the situation as described, somewhere near the
Luponlupon bridge they met some group of men. Having met on their opposite direction, the two,
were noticed by the group of youngsters. The group were bound to Maco Catholic Church to see a
drama. Having met the two and as noticed by the group accused keep [sic] on looking back at
them. The group were suspicious about the man who was bringing a child. The group decided to
follow them. Accused hurriedly walked fast with Yvonne, and to prevent from being overtaken, he
carried the victim and ran. They were chased. After a distance of half a kilometer they were
overtaken.
Edwin Fabila declared that Jonathan, one of his companions with others in chasing, asked the
accused where they were bound. He answered towards Binuangan. The group noticed something
suspicious because their destination was already towards Tagum which is an opposite direction to
Binuangan.
When asked who is the child, accused answered Traya. Jonathan one of those who chased knew the
family. He got from the accused Yvonne who showed some resistance. Nevertheless, the group
brought her home at Binuangan. Likewise, accused was also brought by them to Yvonnes
home. The house of accused and Yvonne were five (5) meters away. Accused wanted to talk to the
parents of the victim, but he was driven by her aunt and adviced [sic] to leave otherwise he will be
stabbed by Yvonnes father. He left and never talked with the family.
Evidence for the Defense
The facts as viewed by the defense are presented in the Appellants Brief, dated [8]
December 10, 1993:
The defense consisted of the testimonies of Arbeth Nalcot and the accused-appellant himself.
Arbeth Nalcot, a resident of Tagum, Davao, testified tht [sic] in the afternoon of December 29,
1991, she was at the Municipal Hall of Maco, Davao. She saw Astorga with two (2)
companions. They were drinking Red Horse and were already drunk. When they finished drinking,
she went with Astorga to the latters house. (TSN, pp. 7-8 and 18, March 23, 1993). The house of
Astorga is about 5 meters away from the house of the complainant[.] Yvonne came and asked
money from the accused to buy candy. The two went together and she was left behind. She told
them to hurry up. When they failed to return, she looked for them, but because it was already dark,
she did not find them. She went back to the house of the accused. (Ibid., pp. 10-11).
Arnulfo Astorga, a resident of Maco, Davao and a gold panner testified that at around 1:00 P.M. of
December 29, 1991, he arrived at Maco from Tagum. Upon arrival his two friends, Vicvic and
Anding were already at his home. They decided to drink, hence they proceeded to Adecor Cottage
and drank two gallons of Tuba. At around 2:00 P.M., they were at the market place and drink beer
grande. At 5:00 P.M. on the same day, the three proceeded near the municipal hall and with some
persons, they again continued their drinking spree taking up Red Horse wine. (Decision, p. 3).
At about 6:00 P.M., he was already drunk and he went home. Yvonne approached him and asked
him money to buy candy. He told her that they will buy. They were not able to buy because the two
stores where they went were already closed. (TSN, pp. 12 and 13, March 24, 1993). He took her for
a stroll for his drunkeness [sic] to subside. They walked inside the school premises which was
about 20 meters away from the second store. They went out of the school compound going towards
Lupon-lupon because due to his drunkneness [sic], he thought it was the way towards their
house. (Ibid, pp. 14-15) They reached Lupon-lupon bridge, crossed it twice thinking that it was the
bridge near the municipal hall. After reaching Purok, they met several persons, he was asked were
(sic) they were heading, and he answered to Tagumpay, but he was told that they [sic] way was
already going to Tagum. He requested those persons to guide them to Tagumpay. They asked him
who was the child he was carrying. He answered that it was Trayas child. (Ibid, pp. 16-17). He was
carrying the child because he was already crying as she already wanted to go home. The group of
persons, men and women, guided them. Yvonne was being held by the women. They arrived at
Yvonnes house. He talked to the auntie of the child and told her that he would converse with her
but he was advised to go away because the father of Yvonne might hack him. So he went home.
(Ibid, pp. 18-19)
The Trial Courts Ruling
The trial court justified its finding of guilt with the following discussion: [9]
Accused insisted [that] he was already drunk hence when he took Yvonne to buy candy, he strolled
with her so that his drunkenness be subsided.
All these defense version was rebutted by Yvonne when she categorically declared that she did not
smell liquor on the accused.
His defense of intoxication has no leg to stand [on].
Consider these facts.
Never did he present Vicvic and Anding to corroborate that he was intoxicated that afternoon and at
dusk because of their drinking spree from 1:00 P.M. until 5:00 P.M.
He did not rebut the testimonies of Fabila that when they noticed his actions suspicious bringing
with him a child, he walked fast dragging Yvonne. When he noticed that the group of youngsters
were chasing him, he carried Yvonne and ran until they covered a distance of half a kilometer in
chasing them, until they had overtaken him.
If he was that intoxicated, being under stupor and weakened by liquor, he could not ran that fast
carrying Yvonne for half a kilometer.
Moreover, Yvonne categorically in straight forward testimony asserted that she did not smell liquor
on the accused.
Accused, naivety [sic], that because of his intoxication, he got lost and was not able to proceed with
Yvonne to Binuangan was a shallow afterthought.
It must be recalled that Yvonne told him they were already going at opposite direction from
home. Instead they were heeding towards Tagum. Accused did not change course.
xxx xxx xxx
Again, not only force was employed in having Yvonne as captive by dragging, slapping her mouth
and was holding her tight, but accused also used psychological means of scaring her about a red
eyed ghost.
Through this means and efforts, Yvonne was deprived of her liberty and was by force prevented to
go home to her parents.
On rebuttal, Yvonne denied that she asked money from accused to buy candy. She also denied as
testified by defense witness Arbeth Nalcot that she went to the house of the accused on 29
December 1991 or on any other dates to ask money from Astorga for candy.
Defense evidence are [sic] punctured with unbelievability in his off tangent and incredible theory of
drunkardness. His alleged being lost in the direction of Binuangan in spite of Yvonnes insistence
and that of the person they met that he was on the wrong way considering that there are no criss
crossing roads except the highway, is preposterous.
The Issues
Appellant imputes the following errors to the trial court: [10]
The trial court erred in giving credence to the testimonies of the prosecutions witnesses which were
replete with inconsistencies and contradictions.
II
The trial court erred in convicting the appellant despite the fact that Yvonne Traya was not detained,
locked-up or deprived of her liberty.
III
The trial court erred in convicting the appellant despite the fact that appellant had no motive to
kidnap Yvonne Traya.
In the main, appellant challenges the credibility of the prosecution witnesses and the
legal characterization of the acts imputed to him.
The Courts Ruling

The appeal is partly meritorious. Appellant should be convicted only of grave coercion,
not kidnapping.
First Issue: Credibility of Prosecution Witnesses
Appellant contends that the testimonies of the prosecution witnesses are not worthy of
credence because they were inconsistent and improbable. He cites the following:
Glenda Chavez testified that she was present when the accused told Yvonne that they will buy
candy. She sensed that the accused was drunk. (TSN, pp. 10-11, March 10, 1993). These
testimonies were contradicted by Yvonne Traya when she declared that Glenda Chavez had already
went [sic] inside their house when [the] accused told her that they will buy candy (TSN, pp. 10,
March 16, 1993). She testified that she did not smell liquor on the accused. (Decision, pp. 3-4)
Edwin Fabila testified that their group was able to overtake the accused at a distance of 2 fathoms
and they [sic] him about 15 to 20 meters (TSN, p. 35, March 10, 1993). Arnel Fabila, on the other
hand, testified that they overtook the accused after chasing him at a distance of half kilometer
(TSN, p. 10, March 11, 1993).
Yvonne Traya testified that the accused could not ran fast carrying her because she was
heavy. (TSN, p. 19, March 16, 1993). However, Arnel Fabila declared that they were able to
overtake the accused only after chasing him at a distance of half kilometer (TSN, p. 10, March 11,
1993) meaning accused was running fast. [11]
We hold, however, that inconsistencies in the testimonies of witnesses concerning

minor details and collateral matters, like the examples cited by appellant, do not affect the
substance, veracity or weight of their declarations. These inconsistencies reinforce, rather
than weaken, their credibility, for different witnesses of startling events usually perceive
things differently. Indeed, the testimonies of the prosecution witnesses cannot be
[12]
expected to be uniform to the last detail.
The testimony of Glenda Chavez that the accused was drunk at that time allegedly
contradicted Yvonnes statement that the accused did not smell of liquor. This does not
detract from the credibility of either witness. Yvonne, then an eight-year-old child, and her
[13]
Aunt Glenda, then twenty-seven years old, do not have the same experiences or level of
[14]
maturity; hence, their perceptions of events differ. More important, whether the accused
was drunk or not is an insignificant detail that does not substantially affect the testimonies
of these witnesses.
Further, the discrepancy in the witnesses estimate of the distance covered by the men
who chased appellant does not render their testimonies incredible. Quite the contrary,
[15]
such discrepancy shows their candor and sincerity, demonstrating that their testimonies
were unrehearsed. Yvonne testified that when appellant noticed the group of men
[16]
following them, he carried her and ran. Yvonnes testimony is in accord with that of Arnel
Fabila -- a member of the group who chased appellant -- that they were able to overtake
appellant after chasing him half a kilometer. [17]
Appellants challenge to the credibility of the prosecution account is also premised on

the alleged failure of the trial court to consider the following points: [18]
a) that the alleged victim admitted that she and the accused casually moved around the school
premises, as if they were strolling; That when they were already in the highway, they were also
walking openly and casually until they were met by a group of youngster[s].
Edwin Fabila, one of the prosecutions witnesses, corroborated the fact that the two were walking
casually along the highway when he first saw them;
b) That it is highly incredible that accused and the alleged victim will not be seen or noticed by the
people travelling or those persons residing along the highway if it was true that the accused was
dragging her and she was continuously crying from her residence up to a distance of more than one
kilometer;
c) That the accused and the alleged victim were travelling at a very slow pace; a distance of barely
a kilometer for a period of more than two hours;
d) That the accused was very drunk, having been drinking different kinds of intoxicating liquors
from 1:00 p.m. to 5:00 p.m., causing him to be confused on which way they should take in going
home.
e) That the accused was not hurt by the group of youngsters who allegedly rescued the child, nor
was immediately brought to the municipal hall which was just near the house of the victim for the
filing of the necessary charge; this [sic] actuations only confirm the fact that the accused merely
sought their help in guiding them home, and
f) That it took more than one week for the complainant and her parents to file the case at the Fiscals
Office.
We cannot sustain these contentions. The charge is not belied by the one-week delay
in the filing of the complaint. It has been held that delay or vacillation in making a criminal
accusation does not necessarily weaken the credibility of a witness where such delay is
satisfactorily explained. In the present case, one week was reasonable, considering that
[19]
the victim was a resident of Binuangan and that the case was filed in Tagum, Davao.
Furthermore, the group whom appellant met did not hurt or bring him to the municipal
hall, because they deemed it more urgent at the time to rescue Yvonne and to bring her
home, which they actually did. There is no settled rule on how a group of young men
[20]
should react upon seeing a young girl snatched by an older man. Verily, violence is not the
only normal reaction of young men who see a girl being forcibly taken.
Appellants claim that he and Yvonne were merely strolling and walking casually does
not negate the fact that Yvonne was deprived of her will. As noted by the trial court,
appellant used physical force and psychological means in restraining her. Despite her[21]
young age, Yvonne was able to clearly recount the events that transpired on that fateful
night.
Moreover, there is no merit in the argument that the people travelling or living along
the highway should have noticed appellant and Yvonne. The fact is that a group of men
actually noticed and ultimately chased them.
All in all, appellant utterly fails to justify a departure from the long settled rule that the
trial courts assessment of the credibility of witnesses should be accorded great respect on
appeal. [22]
Second Issue: No Motive to Kidnap
Petitioner contends that [t]here was no evidence presented to prove why the accused
should kidnap Yvonne Traya. He submits that the prosecution had failed to prove [any]
motive to support the alleged kidnapping incident, thus, making the theory of the defense
more credible and believable. [23]
The contention is insignificant. Motive is not an element of the crime. Furthermore,

motive becomes material only when the evidence is circumstantial or inconclusive, and
there is some doubt on whether a crime has been committed or whether the accused has
committed it. Indeed, motive is totally irrelevant when ample direct evidence sustains the
culpability of the accused beyond reasonable doubt. In this case, the identity of appellant
[24]
is not in question. He himself admitted having taken Yvonne to Maco Central Elementary
School.
Third Issue: Kidnapping or Coercion?
Appellant contends that the prosecution failed to prove one essential element of
kidnapping -- the fact of detention or the deprivation of liberty. The solicitor general
counters that deprivation of liberty is not limited to imprisoning or placing the victim in an
enclosure. Citing People vs. Crisostomo, he argues:
[25]
(T)he act proven in the record constitutes (kidnapping). It is no argument against this conclusion
that the accused deprived the offended party of her liberty without placing her in an inclosure;
because illegal detention, as defined and punished in our Code, may consist not only in imprisoning
a person but also in detaining her or depriving her in any manner of her liberty.
[26]
We agree with appellants contention this time.
Under Article 267 of the Revised Penal Code, the elements of kidnapping are as
[27]
follows:
1. That the offender is a private individual.
2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty.
3. That the act of detention or kidnapping must be illegal.
4. That in the commission of the offense, any of the following circumstances is present:
(a) That the kidnapping or detention lasts for more than five (5) days; or
(b) That it is committed simulating public authority; or
(c) That any serious physical injuries are inflicted upon the person kidnapped or detained or threats
to kill him are made; or
(d) That the person kidnapped or detained is a minor, female, or a public officer.
The Spanish version of Article 267 of the Revised Penal Code uses the terms lockup
(encerrar) rather than kidnap (secuestrar or raptar). Lockup is included in the broader term
of detention, which refers not only to the placing of a person in an enclosure which he
cannot leave, but also to any other deprivation of liberty which does not necessarily
involve locking up. Likewise, the Revised Penal Code was originally approved and
[28]
enacted in Spanish. Consequently, the Spanish text is controlling in cases of conflict with
the English version, as provided in Section 15 of the Revised Administrative Code. [29]
A review of the events as narrated by the prosecution witnesses ineluctably shows the
absence of locking up. Victim Yvonne Traya testified: [30]
Q. And after that what happened next?
A. When Auntie Bebeth went inside her house she was already bringing her child and bringing with
her candle. And Arnulfo Astorga told me that we will buy candy, sir.
Q. And after that?
A. And while I was not answering the question he immediately grabbed me.
xxx xxx xxx
Q. And after that, after he held your hand, what did he do next?
A. He placed his hands on my shoulder and also covering [sic] my mouth.
xxx xxx xxx
Q. And after that what did he do next?
A. He brought me to the school.

Q. What school did Boy Astorga bring you? What is the name of the school?
A. Maco Central Elementary School.
Q. How far is Maco Central Elementary School from your house?
A. A little bit near.
Q. When Boy Astorga brought you to school, was it dark?
A. Yes, sir.
Q. Exactly where in Maco Elementary School did Boy Astorga bring you?
A. Inside the gate, sir.
Q. And once inside the gate what did he do to you?
A. We were going around the school?
xxx xxx xxx
Q. Do you know why you were going around the school?
A. Yes, sir.
Q. Why, what did he do?
A. We were going around and when he saw that there is no person in the gate we passed at that gate.
Q. And where did he go after passing that gate?
A. Towards Lupon-lupon, sir.
xxx xxx xxx
Q. What about you, did you talk to him?
A. I asked him where we were going and he told me that we are going home and I told him that this is
not the way to our house, and we did not pass this way. (Witness gesturing a certain direction).
Q. And so when you said that that is not the way, when you said that is not the way because our
house is towards Binuangan...
By the way, you said you were going to Lupon-lupon, do you know to what direction is going to
Lupon-lupon, to what place is Lupon-lupon going to?
A. Yes, sir.
Q. Where?
A. Going to my place.
Q. Do you know the place where it was going? What is that place?
A. On the road going to Tagum.
Q. Now, what about your house, where is it going?
A. To Binuangan.
Q. And so when you ... what did he do next when you said that is not the place going to your house?
A. We continued walking and he also placed his hands on my shoulder and dragged me, sir.
Q. What about you, what did you do when he was dragging you?
A. I was crying, sir.
Q. Did you say any word to him when you were crying?
A. Yes, I told him that we are going home.
Q. And what did Boy Astorga say?
A. He told me that we will be going home, and told me not to make any noise because if I will make
any noise we will be lost on our way.
Q. And so, what did you do?
A. I continued crying, sir.
Q. And after that, what happened?
A. We continued walking and we met a person and he asked Boy Astorga where we are going, sir.
Q. What did that man ask Boy Astorga?
A. The man asked Boy Astorga where are you going, and Boy Astorga answered, to Binuangan, but
the man continued to say that this way is going to Tagum and not to Binuangan any more.
Q. What else did the man ask, if any?
A. I further said that we will already leave, and we will be the ones to go to Binuangan, and after that,
Boy Astorga put me down because he urinated. So, at that instance, I ran, but, after he urinated,
he already took hold of me not to run any more because there is a ghost.
Q. When you said you ran away after Boy Astorga left you when he urinated, where did you run?
A. Towards Binuangan, sir.
Q. Towards the direction of your house?
A. Yes, sir.
Q. And you were overtaken again by Boy Astorga?
A. Yes, sir.
Q. What did he do to you when you were overtaken by Boy Astorga?
A. He took hold of me again and he told me, he threatened me that there is [sic] a red eyes but I
answered him that is [sic] not a red eyes of the ghost but that is a light coming from the vehicle.
Q. Now, what happened next?
A. He placed a necklace on me, sir.
xxx xxx xxx
A. He was dragging me and I was crying when he was dragging me.
Q. While you were being dragged did you make any plea to him?
A. Yes, I told him that I will go home.
Q. And what did he say?
A. He said that we will go home but I know [sic] that that place we are [sic] heading to is [sic] not a
way to our home but it is [sic] the opposite.
Q. So, what happened next?
A. He continued dragging me and after that we met plenty of persons and I shouted for help and at
that instance, he slapped my mouth and after a few steps he already carried me.
xxx xxx xxx
A. He continued walking and I also continued crying and I told him that I want to go home and he told
me that we are heading towards home, but I told him that the way we are going to is not the way
to our house.
Q. By the way, when you shouted [for] help, was it loud?
A. Yes, sir.
Q. So, what happened next?
A. He continued running and he stopped several vehicles but they did not stop, so, we just continued
walking.
Q. After that, what happened next?
A. He moved closer to the banana plants. He looked back and he saw that persons were already
chasing him and after that he carried me and ran.
From the foregoing, it is clear that the appellant and the victim were constantly on the
move. They went to Maco Elementary School and strolled on the school grounds. When
nobody was at the Luponlupon bridge, appellant took the victim to the highway leading to
Tagum, Davao. At that time, Yvonne pleaded with appellant that she really wanted to go
home to Binuangan, but appellant ignored her pleas and continued walking her toward the
wrong direction. Later on, the group of Witness Arnel Fabila spotted them. Appellant
Astorga carried the victim and ran, but Fabilas group chased and caught up with them.
This narration does not adequately establish actual confinement or restraint of the
victim, which is the primary element of kidnapping. Appellants apparent intention was to
[31]
take Yvonne against her will towards the direction of Tagum. Appellants plan did not
materialize, however, because Fabilas group chanced upon them. The evidence does not
show that appellant wanted to detain Yvonne; much less, that he actually detained
her. Appellants forcible dragging of Yvonne to a place only he knew cannot be said to be
an actual confinement or restriction on the person of Yvonne. There was no
lockup. Accordingly, appellant cannot be convicted of kidnapping under Article 267 of the
Revised Penal Code.
Rather, the felony committed in this case is grave coercion under Article 286 of the
same code. Grave coercion or coaccion grave has three elements: (a) that any person is
prevented by another from doing something not prohibited by law, or compelled to do
something against his or her will, be it right or wrong; (b) that the prevention or compulsion
is effected by violence, either by material force or such a display of it as would produce
intimidation and, consequently, control over the will of the offended party; and (c) that the
person who restrains the will and liberty of another has no right to do so or, in other words,
that the restraint is not made under authority of a law or in the exercise of any lawful right.
When appellant forcibly dragged and slapped Yvonne, he took away her right to go
[32]
home to Binuangan. Appellant presented no justification for preventing Yvonne from going
home, and we cannot find any.
The present case should be distinguished from People vs. Rosemarie de la

Cruz. Here, Appellant Astorga tricked Yvonne to go with him by telling her that they were
[33]
going to buy candy. When Yvonne recognized the deception, she demanded that she be
brought home, but appellant refused and instead dragged her toward the opposite
direction against her will.While it is unclear whether Appellant Astorga intended to detain
or lock up Yvonne, there is no question that he forced her to go with him against her will.
In Rosemarie de la Cruz, Victim Whiazel voluntarily went with accused. Furthermore, the
accused in that case failed to consummate the crime of kidnapping because of the timely
intervention of the victims neighbor. Thus, the Court held in that case: [34]
In a prosecution for kidnapping, the intent of the accused to deprive the victim of the latters liberty,
in any manner, needs to be established by indubitable proof (People vs. Puno, 219 SCRA 85
[1993]). The acts held by the trial court, and maintained by the People, as consummating the crime
of kidnapping in this case are those when accused-appellant held the victims hand and refused to let
go when the victim asked to go over to her neighbor, who by then already saw what was
happening. This happened for only a very brief span of time and the evidentiary record shows that
there were a good number of people present at that time, that a guard was stationed at the gate, and
that there was at least a teacher nearby. The child could have just as easily shouted for help. While
it does not take much to scare the wits out of a small child like Whiazel, under the attendant
circumstances, we cannot say with certainty that she was indeed deprived of her liberty. It must
further be noted that up to that brief moment when Cecilia saw them, and the child asked to be let
go, the victim had gone with accused-appellant voluntarily. Without any further act reinforcing the
inference that the victim may have been denied her liberty, even taking cognizance of her minority,
the Court hesitates to find that kidnapping in the case at bar was consummated. While it is a well-
entrenched rule that factual findings of trial courts, especially when they concern the appreciation
of testimony of witnesses, are accorded great respect, by exception, when the judgment is based on
a misapprehension of facts, as we perceive in the case at bar, the Court may choose to substitute its
own findings (People vs. Padua, 215 SCRA 266 [1992]).
The Information, dated March 24, 1992, filed against Astorga contains sufficient
allegations constituting grave coercion, the elements of which were sufficiently proved by
the prosecution. Hence, a conviction for said crime is appropriate under Section 4, Rule
120 of the 1988 Rules on Criminal Procedure:
Section 4. Judgment in case of variance between allegation and proof. -- When there is variance
between the offense charged in the complaint or information, and that proved or established by the
evidence, and the offenses as charged is included in or necessarily includes the offense proved, the
accused shall be convicted of the offense proved included in that which is charged, or of the offense
charged included in that which is proved.
At the time the felony was committed on December 29, 1991, the penalty imposed by
law for grave coercion was arresto mayor and a fine not exceeding five hundred pesos.
The Indeterminate Sentence Law does not apply here because the maximum penalty
[35]
does not exceed one year. However, appellant has been imprisoned for more than six (6)
[36]
months. He has more than served the penalty imposable for such an offense. [37]
WHEREFORE, the appeal is hereby PARTIALLY GRANTED. Appellant is

CONVICTED only of grave coercion and is sentenced to six (6) months of arresto
mayor. Unless he is being detained for any other valid cause, his IMMEDIATE RELEASE
is herewith ordered, considering that he has more than served the maximum penalty
imposable upon him. The director of prisons is DIRECTED to inform this Court, within five
days from receipt of this Decision, of the actual date the appellant is released. No costs.
SO ORDERED.
PEDRO C. CONSULTA, G.R. No. 179462

Appellant,
Present:
-versus-
QUISUMBING, J., Chairperson,
CARPIO MORALES,
TINGA,
VELASCO, JR. and
BRION, JJ.
PEOPLE OF THE PHILIPPINES,
Appellee,
Promulgated: February 12, 2009

x--------------------------------------------------x
DECISION
CARPIO MORALES, J.:
The Court of Appeals having, by Decision of April 23, 2007, [1] affirmed the December 9, 2004
Decision of the Regional Trial Court of Makati City, Branch 139 convicting Pedro C. Consulta
(appellant) of Robbery with Intimidation of Persons, appellant filed the present petition.
The accusatory portion of the Information against appellant reads:
That on or about the 7th day of June, 1999, in the City of Makati, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with intent
of gain, and by means of force, violence and intimidation, did then and there willfully,
unlawfully and feloniously take, steal and carry away complainants NELIA R.
SILVESTRE gold necklace worth P3,500.00, belonging to said complainant, to the
damage and prejudice of the owner thereof in the aforementioned amount of
P3,500.00.
CONTRARY TO LAW.[2] (Emphasis in the original, underscoring supplied)
From the evidence for the prosecution, the following version is gathered:
At about 2:00 oclock in the afternoon of June 7, 1999, private complainant Nelia R. Silvestre
(Nelia), together with Maria Viovicente (Maria) and Veronica Amar (Veronica), boarded a
tricycle on their way to Pembo, Makati City. Upon reaching Ambel Street, appellant and his
brother Edwin Consulta (Edwin) blocked the tricycle and under their threats, the driver alighted
and left. Appellant and Edwin at once shouted invectives at Nelia, saying Putang ina mong
matanda ka, walanghiya ka, kapal ng mukha mo, papatayin ka namin. Appellant added Putang
ina kang matanda ka, wala kang kadala dala, sinabihan na kita na kahit saan kita
matiempuhan, papatayin kita.
Appellant thereafter grabbed Nelias 18K gold necklace with a crucifix pendant which,
according to an alajera in the province, was of 18k gold, and which was worth P3,500, kicked
the tricycle and left saying Putang ina kang matanda ka! Kayo mga nurses lang, anong
ipinagmamalaki niyo, mga nurses lang kayo. Kami, marami kaming mga abogado. Hindi niyo
kami maipapakulong kahit kailan!
Nelia and her companions immediately went to the Pembo barangay hall where they were
advised to undergo medical examination. They, however, repaired to the Police Station, Precinct
8 in Comembo, Makati City and reported the incident. They then proceeded to Camp Crame
where they were advised to return in a few days when any injuries they suffered were expected
to manifest.
Nine days after the incident or on June 16, 1999, Nelia submitted a medico-legal report
and gave her statement before a police investigator.
Denying the charge, appellant branded it as fabricated to spite him and his family in light
of the following antecedent facts:
He and his family used to rent the ground floor of Nelias house in Pateros. Nelia is his
godmother. The adjacent house was occupied by Nelias parents with whom she often quarreled
as to whom the rental payments should be remitted. Because of the perception of the parents of
Nelia that his family was partial towards her, her parents disliked his family. Nelias father even
filed a case for maltreatment against him which was dismissed and, on learning of the
maltreatment charge, Nelia ordered him and his family to move out of their house and filed a
case against him for grave threats and another for light threats which were dismissed or in
which he was acquitted.
Appellant went on to claim that despite frequent transfers of residence to avoid Nelia, she
would track his whereabouts and cause scandal.
Appellants witness Darius Pacaa testified that on the date of the alleged robbery, Nelia, together
with her two companions, approached him while he was at Ambel Street in the company of
Michael Fontanilla and Jimmy Sembrano, and asked him (Pacaa) if he knew a bald man who is
big/stout with a big tummy and with a sister named Maria. As he replied in the affirmative,
Nelia at once asked him to accompany them to appellants house, to which he acceded. As soon
as the group reached appellants house, appellant, on his (Pacaas) call, emerged and on seeing
the group, told them to go away so as not to cause trouble. Retorting, Nelia uttered Mga hayop
kayo, hindi ko kayo titigilan.
Another defense witness, Thelma Vuesa, corroborated Pacaas account.
The trial court, holding that intent to gain on appellants part is presumed from the
unlawful taking of the necklace, and brushing aside appellants denial and claim of harassment,
convicted appellant of Robbery, disposing as follows:
WHEREFORE, premises considered, this Court finds accused PEDRO C.

CONSULTA guilty beyond reasonable doubt, as principal of the felony of Robbery
with Intimidation of Persons defined and penalized under Article 294, paragraph No.
5, in relation to Article 293 of the Revised Penal Code and hereby sentences him to
suffer the penalty of imprisonment from one (1) year, seven (7) months and eleven
(11) days of arresto mayor, as minimum, to eight (8) years, eight (8) months and one
(1) day of prision mayor, as maximum, applying the Indeterminate Sentence Law,
there being no mitigating or aggravating circumstances which attended the
commission of the said crime.
The said accused is further ordered to pay unto the complainant Nelia Silvestre
the amount of P3,500.00 representing the value of her necklace taken by him and to
pay the costs of this suit.
SO ORDERED. (Italics in the original, underscoring supplied)
The appellate court affirmed appellants conviction with modification on the penalty.
In his present appeal, appellant raises the following issues:
(1) Whether or not appellant was validly arraigned;
(2) Whether or not appellant was denied due process having been represented by a
fake lawyer during arraignment, pre-trial and presentation of principal witnesses
for the prosecution;
(3) Whether or not appellant has committed the crime of which he was charged; and
(4) Whether or not the prosecution was able to prove the guilt of the appellant beyond
reasonable doubt. (Underscoring supplied)
The first two issues, which appellant raised before the appellate court only when he filed his
Motion for Reconsideration of said courts decision, were resolved in the negative in this wise:
On the matter of accused-appellants claim of having been denied due process, an
examination of the records shows that while accused-appellant was represented by
Atty. Jocelyn P. Reyes, who seems not a lawyer, during the early stages of trial, the
latter withdrew her appearance with the conformity of the former as early as July 28,
2000 and subsequently, approved by the RTC in its Order dated August 4, 2000.
Thereafter, accused-appellant was represented by Atty. Rainald C. Paggao from the
Public Defenders (Attorneys) Office of Makati City. Since the accused-appellant was
already represented by a member of the Philippine Bar who principally handled his
defense, albeit unsuccessfully, then he cannot now be heard to complain about having
been denied of due process.[3] (Underscoring supplied)
That appellants first counsel may not have been a member of the bar does not dent the proven
fact that appellant prevented Nelia and company from proceeding to their destination. Further,
appellant was afforded competent representation by the Public Attorneys Office during the
presentation by the prosecution of the medico-legal officer and during the presentation of his
evidence. People v. Elesterio[4] enlightens:
As for the circumstance that the defense counsel turned out later to be a non-lawyer, it
is observed that he was chosen by the accused himself and that his representation does
not change the fact that Elesterio was undeniably carrying an unlicensed firearm when
he was arrested. At any rate, he has since been represented by a member of the
Philippine bar, who prepared the petition for habeas corpus and the appellants
brief. (Underscoring supplied)
On the third and fourth issues. Article 293 of the Revised Penal Code under which appellant
was charged provides:
Art. 293. Who are guilty of robbery. Any person who, with intent to gain, shall
take any personal property belonging to another, by means of violence against or
intimidation of any person, or using force upon anything, shall be guilt of robbery.
(Italics in the original, underscoring supplied)
Article 294, paragraph 5, under which appellant was penalized provides:
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:
xxxx
5. The penalty of prision correccional in its maximum period to prision
mayor in its medium period in other cases. x x x (Citations omitted; italics in the
original; underscoring supplied)
The elements of robbery are thus: 1) there is a taking of personal property; 2) the personal
property belongs to another; 3) the taking is with animus lucrandi; and 4) the taking is with
violence against or intimidation of persons or with force upon things.
Animus lucrandi or intent to gain is an internal act which can be established through the
overt acts of the offender. It may be presumed from the furtive taking of useful property
pertaining to another, unless special circumstances reveal a different intent on the part of the
perpetrator.[5]
The Court finds that under the above-mentioned circumstances surrounding the incidental
encounter of the parties, the taking of Nelias necklace does not indicate presence of intent to
gain on appellants part. That intent to gain on appellants part is difficult to appreciate gains light
given his undenied claim that his relationship with Nelia is rife with ill-feelings, manifested by,
among other things, the filing of complaints [6] against him by Nelia and her family which were
subsequently dismissed or ended in his acquittal.[7]
Absent intent to gain on the part of appellant, robbery does not lie against him. He is not
necessarily scot-free, however.
From the pre-existing sour relations between Nelia and her family on one hand, and
appellant and family on the other, and under the circumstances related above attendant to the
incidental encounter of the parties, appellants taking of Nelias necklace could not have been
animated with animus lucrandi. Appellant is, however, just the same, criminally liable.
For [w]hen there is variance between the offense charged in the complaint or information and
that proved, and the offense as charged is included in or necessarily includes the offense proved,
the accused shall be convicted of the offense proved which is included in the offense charged,
or of the offense charged which is included in the offense proved.[8]
SEC. 5. When an offense includes or is included in another. An offense charged

necessarily includes the offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or information, constitute the
latter. And an offense charged is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form part of those constituting the
latter.[9] (Italics in the original, underscoring supplied)
Grave coercion, like robbery, has violence for one of its elements. Thus Article 286 of the
Revised Penal Code provides:
Art. 286. Grave coercions. The penalty of prision correccional and a fine not
exceeding six thousand pesos shall be imposed upon any person who, without
authority of law,
shall, by means ofviolence, threats or intimidation, prevent another from doing somet
hing not prohibited by law or compel him to do something against his will, whether it
be right or wrong.
If the coercion be committed in violation of the exercise of the right of suffrage or for
the purpose of compelling another to perform any religious act or to prevent him from
exercising such right or from doing such act, the penalty next higher in degree shall be
imposed. (Italics in the original; underscoring supplied)
The difference in robbery and grave coercion lies in the intent in the commission of the act. The
motives of the accused are the prime criterion:
The distinction between the two lines of decisions, the one holding to robbery and the
other to coercion, is deemed to be the intention of the accused. Was the purpose with
intent to gain to take the property of another by use of force or intimidation? Then,
conviction for robbery. Was the purpose, without authority of law but still believing
himself the owner or the creditor, to compel another to do something against his will
and to seize property? Then, conviction for coercion under Article 497 of the Penal
Code. The motives of the accused are the prime criterion. And there was no common
robber in the present case, but a man who had fought bitterly for title to his ancestral
estate, taking the law into his own hands and attempting to collect what he thought
was due him. Animus furandi was lacking.[10] (Italics in the original; citations omitted;
underscoring supplied)
The Court finds that by appellants employment of threats, intimidation and violence
consisting of, inter alia, uttering of invectives, driving away of the tricycle driver, and kicking
of the tricycle, Nelia was prevented from proceeding to her destination.
Appellant is thus guilty of grave coercion which carries the penalty of prision correccional and
a fine not exceeding P6,000. There being no aggravating or mitigating circumstance, the penalty
shall be imposed in its medium term. Applying the Indeterminate Sentence Law, the minimum
that may be imposed is anywhere from one (1) month and one (1) day to six (6) months
of arresto mayor, as minimum, and from two (2) years, four (4) months and one (1) day to four
(4) years and two (2) months of prision correccional, as maximum.
WHEREFORE, the Court SETS ASIDE the challenged Court of Appeals Decision and
another is rendered finding appellant, Pedro C. Consulta, GUILTY beyond reasonable doubt
of Grave Coercion and sentences him to suffer the indeterminate penalty of from six (6) months
of arresto mayor as minimum, to three (3) years and six (6) months of prision
correccional medium as maximum.
Appellant is further ordered to return the necklace, failing which he is ordered to pay its value,
Three Thousand Five Hundred (P3,500) Pesos.
Costs de oficio.
SO ORDERED.
G.R. No. 93833 September 28, 1995
SOCORRO D. RAMIREZ, petitioner,

vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.
KAPUNAN, J.:
A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging
that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and
humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality,"
contrary to morals, good customs and public policy." 1
In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's
fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs
awardable at the trial court's discretion. The transcript on which the civil case was based was culled from a tape
recording of the confrontation made by petitioner. 2 The transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) Good Afternoon M'am.
Defendant Ester S. Garcia (ESG) Ano ba ang nangyari sa 'yo, nakalimot ka na

kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang
gagawin ko sa 'yo.
CHUCHI Kasi, naka duty ako noon.
ESG Tapos iniwan no. (Sic)
CHUCHI Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon
ESG Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi
hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa
'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang
certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi.
CHUCHI Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00
p.m.
ESG Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel.

Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka
nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako.
Panunumbyoyan na kita (Sinusumbatan na kita).
CHUCHI Itutuloy ko na M'am sana ang duty ko.
ESG Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
ESG Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own

merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam
kong hindi ka papasa.
CHUCHI Kumuha kami ng exam noon.
ESG Oo, pero hindi ka papasa.
CHUCHI Eh, bakit ako ang nakuha ni Dr. Tamayo
ESG Kukunin ka kasi ako.
CHUCHI Eh, di sana
ESG Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba
makukuha ka dito kung hindi ako.
CHUCHI Mag-eexplain ako.
ESG Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka
puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang
mga magulang ko.
ESG Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka
ng hindi pumasok, okey yan nasaloob ka umalis ka doon.
CHUCHI Kasi M'am, binbalikan ako ng mga taga Union.
ESG Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok
kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.
CHUCHI Ina-ano ko m'am na utang na loob.
ESG Huwag na lang, hindi mo utang na loob, kasi kung baga sa no,
nilapastangan mo ako.
CHUCHI Paano kita nilapastanganan?
ESG Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka

na. Magsumbong ka. 3
As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation
was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of
Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private
communication, and other purposes." An information charging petitioner of violation of the said Act, dated October 6,
1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No.
4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro Manila,
Philippines, and within the jurisdiction of this honorable court, the above-named
accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the
latter's conversation with said accused, did then and there willfully, unlawfully and
feloniously, with the use of a tape recorder secretly record the said conversation and
thereafter communicate in writing the contents of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts
charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court
granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under
R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a communication by a
person other than a participant to the communication. 4
From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which
forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order
of May 3, 1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus
quashing the information based on the ground that the facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of discretion correctible by certiorari. 5
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of
Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does
not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision
merely refers to the unauthorized taping of a private conversation by a party other than those involved in the
communication. 8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged in
the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that
R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of
secretly taping her conversation with private respondent was not illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where the language of a statute is
clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to
only where a literal interpretation would be either impossible 11 or absurb or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of
Private Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by using
a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape
recorder, or however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties
to any private communication to secretly record such communication by means of a tape recorder. The law makes
no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different
from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make
such recording is underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals
correctly concluded, "even a (person) privy to a communication who records his private conversation with another
without the knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in
enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private
conversations or communications taken either by the parties themselves or by third persons. Thus:
xxx xxx xxx
Senator Taada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear
to be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some
parties and involved not criminal cases that would be mentioned under section 3 but would cover, for
example civil cases or special proceedings whereby a recording is made not necessarily by all the
parties but perhaps by some in an effort to show the intent of the parties because the actuation of
the parties prior, simultaneous even subsequent to the contract or the act may be indicative of their
intention. Suppose there is such a recording, would you say, Your Honor, that the intention is to
cover it within the purview of this bill or outside?
Senator Taada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence
to be used in Civil Cases or special proceedings?
Senator Taada: That is right. This is a complete ban on tape recorded conversations taken without
the authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Taada: I believe it is reasonable because it is not sporting to record the observation of one
without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the
purpose; Your honor, is to record the intention of the parties. I believe that all the parties should know
that the observations are being recorded.
Senator Padilla: This might reduce the utility of recorders.

Senator Taada: Well no. For example, I was to say that in meetings of the board of directors where
a tape recording is taken, there is no objection to this if all the parties know. It is but fair that the
people whose remarks and observations are being made should know that the observations are
being recorded.
Senator Padilla: Now, I can understand.
Senator Taada: That is why when we take statements of persons, we say: "Please be informed that
whatever you say here may be used against you." That is fairness and that is what we demand.
Now, in spite of that warning, he makes damaging statements against his own interest, well, he
cannot complain any more. But if you are going to take a recording of the observations and remarks
of a person without him knowing that it is being taped or recorded, without him knowing that what is
being recorded may be used against him, I think it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a
party secretly records a public speech, he would be penalized under Section 1? Because the speech
is public, but the recording is done secretly.
Senator Taada: Well, that particular aspect is not contemplated by the bill. It is the communication
between one person and another person not between a speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the
Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to
penalize even those privy to the private communications. Where the law makes no distinctions, one does not
distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need
not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing,
intercepting or recording private communications by means of the devices enumerated therein. The mere allegation
that an individual made a secret recording of a private communication by means of a tape recorder would suffice to
constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the
respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature
of the conversation, as well as its communication to a third person should be professed." 14
Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include
"private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word
communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification,
communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or
imparting, as in a conversation, 15 or signifies the "process by which meanings or thoughts are shared between
individuals through a common system of symbols (as language signs or gestures)" 16 These definitions are broad enough
to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include
the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the
latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put
to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Taada in his
Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their conversations being overheard.
But this statement ignores the usual nature of conversations as well the undeniable fact that most, if
not all, civilized people have some aspects of their lives they do not wish to expose.
Free conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and
the expression of anti-social desires of views not intended to be taken seriously. The right to
the privacy of communication, among others, has expressly been assured by our Constitution.
Needless to state here, the framers of our Constitution must have recognized the nature
of conversations between individuals and the significance of man's spiritual nature, of his feelings
and of his intellect. They must have known that part of the pleasures and satisfactions of life are to
be found in the unaudited, and free exchange of communication between individuals free from
every unjustifiable intrusion by whatever means. 17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that
the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not
violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)"
enumerated therein, 19 following the principle that "penal statutes must be construed strictly in favor of the accused." 20 The
instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200
suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications
with the use of tape-recorders as among the acts punishable.
WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no
discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against
petitioner.
SO ORDERED.
FELIPE NAVARRO, petitioner, vs. THE COURT OF APPEALS and the PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated December 14,
1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992,
finding petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and sentencing him to ten (10)
years of prision mayor, as minimum, and fourteen (14) years, eight (8) months, and one (1) day of reclusion
temporal, as maximum, but increased the death indemnity awarded to the heirs of the victim, Enrique Ike
Lingan, from P30,000.00 to P50,000.00.
The information against petitioner alleged
That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena, Province of
Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being
then a member of the Lucena Integrated National Police, with intent to kill, did then and there
willfully, unlawfully and feloniously assault one Ike Lingan inside the Lucena police headquarters,
where authorities are supposed to be engaged in the discharge of their duties, by boxing the said Ike
Lingan in the head with the butt of a gun and thereafter when the said victim fell, by banging his
head against the concrete pavement, as a consequence of which said Ike Lingan suffered cerebral
concussion and shock which directly caused his death.
The evidence shows that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and Enrique
Ike Lingan, who were reporters of the radio station DWTI in Lucena City, together with one Mario Ilagan, went
to the Entertainment City following reports that it was showing nude dancers. After the three had seated
themselves at a table and ordered beer, a scantily clad dancer appeared on stage and began to perform a strip
act. As she removed her brassieres, Jalbuena brought out his camera and took a picture.[2]
At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached Jalbuena and
demanded to know why he took a picture. [3] Jalbuena replied: Wala kang pakialam, because this is my job.
[4]
Sioco pushed Jalbuena towards the table as he warned the latter that he would kill him. [5] When Jalbuena saw
that Sioco was about to pull out his gun, he ran out of the joint followed by his companions.[6]
Jalbuena and his companions went to the police station to report the matter. Three of the policemen on duty,
including petitioner Navarro, were having drinks in front of the police station, and they asked Jalbuena and his
companions to join them. Jalbuena declined and went to the desk officer, Sgt. Aonuevo, to report the
incident. In a while, Liquin and Sioco arrived on a motorcycle.[7]
Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen
minutes.[8] Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall, said to him: Putang
ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba kilala?[9] Petitioner Navarro then
pulled out his firearm and cocked it, and, pressing it on the face of Jalbuena, said, Ano, uutasin na kita?[10]
At this point, Lingan intervened and said to petitioner Navarro: Huwag namang ganyan, pumarito kami
para magpa-blotter, I am here to mediate.[11] Petitioner Navarro replied: Walang press, press, mag-sampu pa
kayo.[12] He then turned to Sgt. Aonuevo and told him to make of record the behavior of Jalbuena and Lingan.[13]
This angered Lingan, who said: O, di ilagay mo diyan.[14] Petitioner Navarro retorted: Talagang ilalagay ko.
The two then had a heated exchange.[16] Finally, Lingan said: Masyado kang abusado, alisin mo yang baril
[15]
mo at magsuntukan na lang tayo.[17] Petitioner Navarro replied: Ah, ganoon?[18]
As Lingan was about to turn away, petitioner Navarro hit him with the handle of his pistol above the left
eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, but petitioner Navarro gave
him a fist blow on the forehead which floored him.[19]
Petitioner Navarro turned to Jalbuena and said: Kita mo yan ha, buhay kang testigo, si Ike Lingan ang
naghamon.[20] He said to Sgt. Aonuevo: Ilagay mo diyan sa blotter, sa harap ni Alex Sioco at Dante Liquin, na si
Ike Lingan ang naghamon.[21] He then poked his gun at the right temple of Jalbuena and made him sign his name
on the blotter.[22] Jalbuena could not affix his signature. His right hand was trembling and he simply wrote his
name in print.[23]
Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman took
Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy Casaada, arrived and, learning
that Lingan had been taken to the hospital, proceeded there. But Lingan died from his injuries.[24]
Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between petitioner and
the deceased.[25] The following is an excerpt from the tape recording:
Lingan: Pare, you are abusing yourself.
Navarro: Who is that abusing?

Lingan: Im here to mediate. Do not include me in the problem. Im out of the problem.
....
Navarro: Wala sa akin yan. Ang kaso lang . . . .
Lingan: Kalaban mo ang media, pare. Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I just came here to
ayusin things. Do not say bad things against me. Im the number one loko sa media. Im the best media man. . . .
Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong sabihing loko ka!
Lingan: Im brave also.
Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nag-tatrabaho lang ako ng
ayon sa serbisyo ko.
Lingan: You are challenging me and him. . . .
Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong
maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh.
Lingan: Pati ako kalaban ninyo.
Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw!
Lingan: You are wrong. Bakit kalaban nyo ang press?
Navarro: Pulis ito! Aba!
Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.
Navarro: Mayabang ka ah!
(Sounds of a scuffle)
Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko daw ang baril
ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni Stanley. Testigo kayo, hinamon ako. Pulis
tayo eh. Puta, buti nga, suntok lang ang inabot nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare,
hinamon ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan.
Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he (petitioner) was
able to duck both times, and that Lingan was so drunk he fell on the floor twice, each time hitting his head on
the concrete.[26]
In giving credence to the evidence for the prosecution, the trial court stated:
After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the
defense, this court finds that the evidence for the prosecution is the more credible, concrete and
sufficient to create that moral certainty in the mind of the court that accused herein is criminally
responsible.
The defenses evidence which consists of outright denial could not under the circumstance overturn
the strength of the prosecutions evidence.
This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked any
motive to make false accusation, distort the truth, testify falsehood or cause accusation of one who
had neither brought him harm or injury.
Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto confirms
the detailed account given by Stanley Jalbuena on how Lingan sustained head injuries.
Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim of the
defense that the head injuries of deceased Lingan were caused by the latters falling down on the
concrete pavement head first.
The Court of Appeals affirmed:
We are far from being convinced by appellants aforesaid disquisition. We have carefully evaluated
the conflicting versions of the incident as presented by both parties, and we find the trial courts
factual conclusions to have better and stronger evidentiary support.
In the first place, the mere fact that Jalbuena was himself a victim of appellants aggression does not
impair the probative worth of his positive and logical account of the incident in question. In fact,
far from proving his innocence, appellants unwarranted assault upon Jalbuena, which the defense
has virtually admitted, clearly betrays his violent character or disposition and his capacity to harm
others. Apparently, the same motivation that led him into assailing Jalbuena must have provoked
him into also attacking Lingan who had interceded for Jalbuena and humiliated him and further
challenged him to a fist fight.
....
On the other hand, appellants explanation as to how Lingan was injured is too tenuous and illogical
to be accepted. It is in fact contradicted by the number, nature and location of Lingans injuries as
shown in the post-mortem report (Exh. D). According to the defense, Lingan fell two times when
he was outbalanced in the course of boxing the appellant. And yet, Lingan suffered lacerated
wounds in his left forehead, left eyebrow, between his left and right eyebrows, and contusion in the
right temporal region of the head (Exh. E). Certainly, these injuries could not have resulted from
Lingans accidental fall.
Hence, this appeal. Petitioner Navarro contends:
THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD
WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT. ITS
CONCLUSION IS A FINDING BASED ON SPECULATION, SURMISE OR CONJECTURE;
THE INFERENCE IT MADE IS MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT
COMMITTED GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A
MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY EVIDENCE ON
RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN THE RECORD.
The appeal is without merit.
First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he was a
biased witness, having a grudge against him. The testimony of a witness who has an interest in the conviction of
the accused is not, for this reason alone, unreliable. [27] Trial courts, which have the opportunity to observe the
facial expressions, gestures, and tones of voice of a witness while testifying, are competent to determine
whether his or her testimony should be given credence. [28] In the instant case, petitioner Navarro has not shown
that the trial court erred in according weight to the testimony of Jalbuena.
Indeed, Jalbuenas testimony is confirmed by the voice recording he had made. It may be asked whether the
tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. The
law provides:
SECTION 1. It shall be unlawful for any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or
tape-recorder, or however otherwise described:
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the
next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any
other such record, or copies thereof, of any communication or spoken word secured either before or
after the effective date of this Act in the manner prohibited by this law; or to replay the same for
any other person or persons; or to communicate the contents thereof, either verbally or in writing,
or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That
the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial
of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.
....
SEC. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect,
or meaning of the same or any part thereof, or any information therein contained obtained or
secured by any person in violation of the preceding sections of this Act shall not be admissible in
evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
Thus, the law prohibits the overhearing, intercepting, or recording of private communications. [29] Since the
exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited.
Nor is there any question that it was duly authenticated. A voice recording is authenticated by the testimony
of a witness (1) that he personally recorded the conversation; (2) that the tape played in court was the one he
recorded; and (3) that the voices on the tape are those of the persons such are claimed to belong. [30] In the instant
case, Jalbuena testified that he personally made the voice recording;[31] that the tape played in court was the one
he recorded;[32] and that the speakers on the tape were petitioner Navarro and Lingan. [33] A sufficient foundation
was thus laid for the authentication of the tape presented by the prosecution.
Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange between
petitioner Navarro and Lingan on the placing in the police blotter of an entry against him and Jalbuena; and (2)
that some form of violence occurred involving petitioner Navarro and Lingan, with the latter getting the worst
of it.
Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued a medical
certificate,[34] dated February 5, 1990, containing the following findings:
Post Mortem Findings:
= Dried blood, forehead & face
= No blood oozed from the ears, nose & mouth
= Swelling, 3 cm x 2 cm, temporal region, head, right
= Lacerated wound, 2 cm in length, 1-2 in depth, lateral, eyebrow, Left
= Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow
= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left
= Cyanosis of the tips of fingers & toes
CAUSE OF DEATH:
= CEREBRAL CONCUSSION & SHOCK
= BLOW ON THE HEAD
Dr. Yamamoto testified:
Q Give your opinion as to what was the possible cause of this findings number one, which is oozing of blood from the
forehead?
A It may be due to a blow on the forehead or it bumped to a hard object, sir.
Q Could a metal like a butt of a gun have caused this wound No. 1?
A It is possible, sir.
Q And in the alternative, could have it been caused by bumping on a concrete floor?
A Possible, sir.
FISCAL:
What could have been the cause of the contusion and swelling under your findings No. 2 doctor?
WITNESS:
It may be caused by bumping to a hard object, sir.
Q Could a butt of a gun have caused it doctor?
A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun is small, sir.
Q How about this findings No. 4?
A By a bump or contact of the body to a hard object, sir.
Q And findings No. 5 what could have caused it?
A Same cause, sir.
Q This findings No. 6 what could have caused this wound?
A Same thing, sir.
Q How about this last finding, cyanosis of tips of fingers and toes, what could have caused it doctor?
WITNESS:
It indicates there was cardiac failure, sir.
FISCAL:
In this same post mortem report and under the heading cause of death it states: Cause of Death: Cerebral concussion
and Shock, will you explain it?
A Cerebral concussion means in Tagalog naalog ang utak or jarring of the brain, sir.
Q What could have been the cause of jarring of the brain?
A It could have been caused by a blow of a hard object, sir.
Q What about the shock, what could have caused it?
A It was due to peripheral circulatory failure, sir.
Q Could any one of both caused the death of the victim?
A Yes, sir.
Q Could cerebral concussion alone have caused the death of the deceased?
A May be, sir.
Q How about shock?

A Yes, sir.
FISCAL:
Which of these two more likely to cause death?
WITNESS:
Shock, sir.
Q Please explain further the meaning of the medical term shock?
A It is caused by peripheral circulatory failure as I have said earlier, sir.
....
FISCAL:
Could a bumping or pushing of ones head against a concrete floor have caused shock?
WITNESS:
Possible, sir.
How about striking with a butt of a gun, could it cause shock?
A Possible, sir.[35]
The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with the
handle of his pistol above the left eyebrow and struck him on the forehead with his fist.
Third. It is argued that the mitigating circumstance of sufficient provocation or threat on the part of the
offended party immediately preceding the act should have been appreciated in favor of petitioner
Navarro. Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of
exciting, inciting, or irritating anyone.[36] The provocation must be sufficient and should immediately precede the
act.[37] People v. Paga, 79 SCRA 570 (1977).37 To be sufficient, it must be adequate to excite a person to commit
the wrong, which must accordingly be proportionate in gravity.[38]And it must immediately precede the act so
much so that there is no interval between the provocation by the offended party and the commission of the
crime by the accused.[39]
In the present case, the remarks of Lingan, which immediately preceded the act of petitioner, constituted
sufficient provocation. In People v. Macaso,[40] we appreciated this mitigating circumstance in favor of the
accused, a policeman, who shot a motorist after the latter had repeatedly taunted him with defiant words. Hence,
this mitigating circumstance should be considered in favor of petitioner Navarro.
Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as
that committed should also be appreciated in favor of petitioner. The frantic exclamations of petitioner Navarro
after the scuffle that it was Lingan who provoked him shows that he had no intent to kill the latter. Thus, this
mitigating circumstance should be taken into account in determining the penalty that should be imposed on
petitioner Navarro. The allowance of this mitigating circumstance is consistent with the rule that criminal
liability shall be incurred by any person committing a felony although the wrongful act done be different from
that which he intended.[41] In People v. Castro,[42] the mitigating circumstance of lack of intent to commit so
grave a wrong as that committed was appreciated in favor of the accused while finding him guilty of homicide.
However, the aggravating circumstance of commission of a crime in a place where the public authorities
are engaged in the discharge of their duties should be appreciated against petitioner Navarro. The offense in this
case was committed right in the police station where policemen were discharging their public functions.[43]
The crime committed as found by the trial court and the Court of Appeals was homicide, for which the
penalty under Art. 249 of the Revised Penal Code is reclusion temporal. As there were two mitigating
circumstances and one aggravating circumstance, the penalty should be fixed in its minimum period.
[44]
Applying the Indeterminate Sentence Law, petitioner Navarro should be sentenced to an indeterminate
penalty, the minimum of which is within the range of the penalty next lower in degree, i.e., prision mayor, and
the maximum of which is reclusion temporal in its minimum period.[45]
The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in accordance with
current jurisprudence.[46]
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that petitioner
Felipe Navarro is hereby SENTENCED to suffer a prison term of 8 years of prision mayor, as minimum, to 14
years and 8 months of reclusion temporal, as maximum.
SO ORDERED.
G.R. No. L-69809 October 16, 1986
EDGARDO A. GAANAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the Anti-
Wiretapping Act, on the issue of whether or not an extension telephone is among the prohibited devices in Section 1
of the Act, such that its use to overhear a private conversation would constitute unlawful interception of
communications between the two parties using a telephone line.
The facts presented by the People and narrated in the respondent court's decision are not disputed by the petitioner.
In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon
were in the living room of complainant's residence discussing the terms for the withdrawal of the
complaint for direct assault which they filed with the Office of the City Fiscal of Cebu against
Leonardo Laconico. After they had decided on the proposed conditions, complainant made a
telephone call to Laconico (tsn, August 26, 1981, pp. 3-5).
That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and
advise him on the settlement of the direct assault case because his regular lawyer, Atty. Leon
Gonzaga, went on a business trip. According to the request, appellant went to the office of Laconico
where he was briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).
When complainant called up, Laconico requested appellant to secretly listen to the telephone
conversation through a telephone extension so as to hear personally the proposed conditions for the
settlement. Appellant heard complainant enumerate the following conditions for withdrawal of the
complaint for direct assault.
(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A
breakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no
longer for the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to
withdraw the case for Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office;
(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High
School;
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical
High School;
(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel
Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct
Assault Case against Atty. Laconico to be filed later;
(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;
(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).
Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the
conditions. Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on
where to deliver the money. (tsn, March 10, 1983, pp. 2-12).
Complainant called up again and instructed Laconico to give the money to his wife at the office of
the then Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of
the Criminal Investigation Service of the Philippine Constabulary, insisted that complainant himself
should receive the money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the
Igloo Restaurant, complainant was arrested by agents of the Philippine Constabulary.
Appellant executed on the following day an affidavit stating that he heard complainant demand
P8,000.00 for the withdrawal of the case for direct assault. Laconico attached the affidavit of
appellant to the complainant for robbery/extortion which he filed against complainant. Since
appellant listened to the telephone conversation without complainant's consent, complainant
charged appellant and Laconico with violation of the Anti-Wiretapping Act.
After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico
guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment
with costs. Not satisfied with the decision, the petitioner appealed to the appellate court.
On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the
communication between the complainant and accused Laconico was private in nature and, therefore, covered by
Rep. Act No. 4200; that the petitioner overheard such communication without the knowledge and consent of the
complainant; and that the extension telephone which was used by the petitioner to overhear the telephone
conversation between complainant and Laconico is covered in the term "device' as provided in Rep. Act No. 4200.
In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues;
(a) whether or not the telephone conversation between the complainant and accused Laconico was private in
nature; (b) whether or not an extension telephone is covered by the term "device or arrangement" under Rep. Act
No. 4200; (c) whether or not the petitioner had authority to listen or overhear said telephone conversation and (d)
whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by using
a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-
recorder, or however otherwise described:
It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next
preceeding sentence, to knowingly possess any tape record, wire record, disc record, or any other
such record, or copies thereof, of any communication or spoken word secured either before or after
the effective date of this Act in the manner prohibited by this law; or to replay the same for any other
person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of
such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses
mentioned in Section 3 hereof, shall not be covered by this prohibition.
We rule for the petitioner.
We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not
the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or
not the person called over the telephone and his lawyer listening to the conversation on an extension line should
both face prison sentences simply because the extension was used to enable them to both listen to an alleged
attempt at extortion.
There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico
was "private" in the sense that the words uttered were made between one person and another as distinguished from
words between a speaker and a public. It is also undisputed that only one of the parties gave the petitioner the
authority to listen to and overhear the caller's message with the use of an extension telephone line. Obviously,
complainant Pintor, a member of the Philippine bar, would not have discussed the alleged demand for an P8,000.00
consideration in order to have his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu
City Fiscal's Office if he knew that another lawyer was also listening. We have to consider, however, that affirmance
of the criminal conviction would, in effect, mean that a caller by merely using a telephone line can force the listener
to secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word of the caller against
the listener's.
Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads
which telephone cables are made to carry in certain areas, telephone users often encounter what are called
"crossed lines". An unwary citizzen who happens to pick up his telephone and who overhears the details of a crime
might hesitate to inform police authorities if he knows that he could be accused under Rep. Act 4200 of using his
own telephone to secretly overhear the private communications of the would be criminals. Surely the law was never
intended for such mischievous results.
The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other
device or arrangement." Is an extension of a telephone unit such a device or arrangement as would subject the user
to imprisonment ranging from six months to six years with the accessory penalty of perpetual absolute
disqualification for a public officer or deportation for an alien? Private secretaries with extension lines to their
bosses' telephones are sometimes asked to use answering or recording devices to record business conversations
between a boss and another businessman. Would transcribing a recorded message for the use of the boss be a
proscribed offense? or for that matter, would a "party line" be a device or arrangement under the law?
The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly
known" listening or recording devices, nor do they belong to the same class of enumerated electronic devices
contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being
considered in the Senate, telephones and extension telephones were already widely used instruments, probably the
most popularly known communication device.
Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate.
Yet, when the bill was finalized into a statute, no mention was made of telephones in the enumeration of devices
"commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however
otherwise described." The omission was not a mere oversight. Telephone party lines were intentionally deleted from
the provisions of the Act.
The respondent People argue that an extension telephone is embraced and covered by the term "device" within the
context of the aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is
a separate device and distinct set of a movable apparatus consisting of a wire and a set of telephone receiver not
forming part of a main telephone set which can be detached or removed and can be transferred away from one
place to another and to be plugged or attached to a main telephone line to get the desired communication corning
from the other party or end.
The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly
overhearing, intercepting, or recording the communication. There must be either a physical interruption through a
wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken
words.
An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices
enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a
telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there
for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature,
the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the
whole and every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of
Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120).
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:
Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may
be, they shall not be understood to comprehend things that are distinct and cases that are different
from those upon which the parties intended to agree.' Similarly, Article 1374 of the same Code
provides that 'the various stipulations of a contract shall be interpreted together, attributing to the
doubtful ones that sense which may result from all of them taken jointly.
xxx xxx xxx
Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and
7(d) should be then restricted only to those listed in the Inventory and should not be construed as to
comprehend all other obligations of the decedent. The rule that 'particularization followed by a
general expression will ordinarily be restricted to the former' is based on the fact in human
experience that usually the minds of parties are addressed specially to the particularization, and that
the generalities, though broad enough to comprehend other fields if they stood alone, are used in
contemplation of that upon which the minds of the parties are centered. (Hoffman v. Eastern
Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco, Revised Rules of Court
(Evidence), 1973 ed, pp. 180-181).
Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated
therein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use
of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or
presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of
common usage and their purpose is precisely for tapping, intercepting or recording a telephone conversation.
An extension telephone is an instrument which is very common especially now when the extended unit does not
have to be connected by wire to the main telephone but can be moved from place ' to place within a radius of a
kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably
has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone
unit which shares its line with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed
2d 137-138):
Common experience tells us that a call to a particular telephone number may cause the bell to ring
in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk
that the other party may have an extension telephone and may allow another to overhear the
conversation. When such takes place there has been no violation of any privacy of which the parties
may complain. Consequently, one element of 605, interception, has not occurred.
In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating
the message he held out his hand-set so that another could hear out of it and that there is no distinction between
that sort of action and permitting an outsider to use an extension telephone for the same purpose.
Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case
of doubt as in the case at bar, on whether or not an extension telephone is included in the phrase "device or
arrangement", the penal statute must be construed as not including an extension telephone. In the case of People v.
Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule:
American jurisprudence sets down the reason for this rule to be the tenderness of the law of the
rights of individuals; the object is to establish a certain rule by conformity to which mankind would be
safe, and the discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S
Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings
v. Commonwealth, 109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to
enable a guilty person to escape punishment through a technicality but to provide a precise definition
of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory
Construction, Rev. Ed. pp. 183-184).
In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the
primary rule is to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional
Records will show that not only did our lawmakers not contemplate the inclusion of an extension telephone as a
prohibited device or arrangement" but of greater importance, they were more concerned with penalizing the act of
recording than the act of merely listening to a telephone conversation.
xxx xxx xxx
Senator Taada. Another possible objection to that is entrapment which is certainly

objectionable. It is made possible by special amendment which Your Honor may
introduce.
Senator Diokno.Your Honor, I would feel that entrapment would be less possible with
the amendment than without it, because with the amendment the evidence of
entrapment would only consist of government testimony as against the testimony of
the defendant. With this amendment, they would have the right, and the government
officials and the person in fact would have the right to tape record their conversation.
Senator Taada. In case of entrapment, it would be the government.
Senator Diokno. In the same way, under this provision, neither party could record
and, therefore, the court would be limited to saying: "Okay, who is more credible, the
police officers or the defendant?" In these cases, as experienced lawyers, we know
that the Court go with the peace offices.
(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).
xxx xxx xxx
Senator Diokno. The point I have in mind is that under these conditions, with an
agent outside listening in, he could falsify the testimony and there is no way of
checking it. But if you allow him to record or make a recording in any form of what is
happening, then the chances of falsifying the evidence is not very much.
Senator Taada. Your Honor, this bill is not intended to prevent the presentation of
false testimony. If we could devise a way by which we could prevent the presentation
of false testimony, it would be wonderful. But what this bill intends to prohibit is the
use of tape record and other electronic devices to intercept private conversations
which later on will be used in court.
(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).
It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as
government authorities or representatives of organized groups from installing devices in order to gather evidence for
use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone users.
Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the enumerated
devices in RA No. 4200 or others of similar nature. We are of the view that an extension telephone is not among
such devices or arrangements.
WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16,
1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No.
4200, otherwise known as the Anti-Wiretapping Act.
SO ORDERED.
G.R. No. 179080 November 26, 2014
EDIGARDO GEROCHE, ROBERTO GARDE and GENEROSO MARFIL alias "TAPOL", Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is an appeal from the Decision dated November 18, 2005 and Resolution dated June 19, 2007 of the Court of
1 2
Appeals (CA) in G.R. CR No. 26418, which set aside the November 15, 2001 Decision of the Regional Trial Court
3
(RTC), Branch 17, Kidapawan City, Cotabato.

Petitioners Edigardo Geroche, Roberto Garde and Generoso Marfil alias "Tapol" were charged with the crime of
Violation of Domicile under Article 128 of the Revised Penal Code (RPC). The Information dated May 3, 1990
4
reads:
The undersigned accuses EDIGARDO GEROCHE, ROBERTO GARDE AND GENEROSO MARFIL Alias "TAPOL"
of the crime of Violation of Domicile, committed as follows:
That at about 10:00 oclock in the evening of May 14, 1989, at Sitio New Lantawan, Barangay Greenhills,
Municipality of President Roxas, Province of Cotabato, Philippines, the above-named accused EDIGARDO
GEROCHE, being a Barangay Captain and the rest being CAFGUs, hence, persons inauthority, conspiring,
confederating and mutually helping one another, armed with garand rifles, did then and there, wilfully, unlawfully and
feloniously, without proper judicial order, entered the house of ROBERTO MALLO by forcibly breaking the door of
said house against the will of the occupants thereof, search the effects of the house without the previous consent of
the owner and then mauled one of the occupant BARILIANO LIMBAG inflicting injuries to the latter.
CONTRARY TO LAW. 5
During the arraignment on November5, 1990, all the petitioners pleaded not guilty. Thereafter, trial ensued.
6
Baleriano Limbag (Baleriano) testified that the crime happened around 10:00 oclock in the evening of May 14, 1989
inside the house which he already bought from Roberto Mallo. He roused from sleep when petitioners, who were not
armed with search warrant, suddenly entered the house by destroying the main door. The petitioners mauled him,
striking with a garand rifle, which caused his injuries. They looked for firearms but instead found and took away his
airgun. Roberto Limbag, Balerianos nephew who was living with him, witnessed the whole incident and
corroborated his testimony.
Aside from presenting SPO4 Felomino Calfoforo, the Subpoena and Warrant Officer of President Roxas Police
Station who testified on the police blotter, Dr. Antonio Cabrera also took the witness stand for the prosecution.
Essentially, he affirmed the medical certificate that he issued. His findings indicated that Baleriano suffered
hematoma on the left side of the nose, back portion of the body at the level of the hip region, and back portion at the
right side of the scapular region as well as abrasion on the right side of the breast and left side of the body at the
axilliary region. Dr. Cabrera opined that the injuries inflicted would heal from seven to ten days. For the defense,
7 8
petitioners denied the crime charged, declaring in unison that they were in their respective houses the entire
evening of May 14, 1989. They alleged, however, that the night before, on May 13, 1989, they conducted a roving
footpatrol, together with other barangay officials, due to the rampant cattle rustling in the area. At the time, they
recovered a stolen carabao owned by a certain Francisco Pongasi from three unidentified persons who managed to
9
escape.
On November 15, 2001, the trial court found petitioners guilty beyond reasonable doubt of the crime of Less Serious
Physical Injuries under the Article 265 of the RPC. They were sentenced to suffer the penalty of imprisonment of
arresto mayor maximum, that is, four (4) months and one (1) day to six (6) months. According to the RTC, the
prosecution failed to prove that petitioners are public officers, which is an essential element of Article 128 of the
RPC. It held:
The prosecution who has that onus probandifailed to prove one of the essential elements of the crime; on the issue
of whether or not all the accused were public officers; while it is true that accused were named CVOs and the other
as a barangay captain and that even if the same were admitted by them during their testimony in open court, such
an admission is not enough to prove that they were public officers; it is for the prosecution to prove by clear and
convincing evidence other than that of the testimony of witnesses that they werein fact public officers; there exist a
doubt of whether or not all the accused were in fact and in truth public officers; doubts should be ruled in favorof the
accused; that on this lone and essential element the crime charged as violation of domicile is ruled out; that degree
of moral certainty of the crime charged was not established and proved by convincing evidence of guilt beyond
reasonable doubt; x x x. Petitioners elevated the case to the CA, which, on November 18, 2005, set aside the trial
10
courts judgment. While it agreed with both parties that petitioners should not be convictedfor Less Serious Physical
Injuries, the CA still ruled that they are guilty of Violation of Domicile considering their judicial admissions that they
were barangay captain (in the case of Geroche) and part of the Citizen Armed Forces Geographical Unit (in the
case of Garde and Marfil). The dispositive portion of the assailed Decision states:
WHEREFORE, pursuant to applicable law and jurisprudence on the matter and the evidence on hand, the appealed
decision is hereby SET ASIDE and a new one entered finding the accused-petitioners GUILTY beyond reasonable
doubt of the crime of Violation of Domicile under Article 128 of the Revised Penal Code and sentencing them to an
indeterminate penalty of Four (4) Months, One (1) Day of arresto mayor maximum to Six (6) Months and One (1)
Day of prision [correccional] minimum with the accessory penalty of suspension from public office and from the right
to follow a professionor calling pursuant to Article 43 of the Revised Penal Code.
SO ORDERED. 11
Petitioners motion for reconsideration was denied; hence, this petition. They argue that there is double jeopardy
since the trial court already acquitted them of Violation of Domicile and such judgment, being now final and
executory, is res judicata. Petitioners insist that their appeal before the CA is limited to their conviction for the crime
of Less Serious Physical Injuries, focusing their arguments and defense for acquittal from said crime, and that the
CA violated their constitutional right to due process when it convicted them for Violation of Domicile.
We deny.
An appeal in a criminal case opensthe entire case for review on any question including one not raised by the
parties. When an accused appeals from the sentence of the trial court,he or she waives the constitutional
12
safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is
then called upon to render such judgment as law and justice dictate. An appeal confers upon the appellate court
13
jurisdiction to examine the records, revise the judgment appealed from, increase (or reduce) the penalty, and cite
the proper provision of the penal law. The appellate court may, and generally does,look into the entire records to
14
ensure that no fact of weight or substance has been overlooked, misapprehended, or misapplied by the trial court. 15
Thus, when petitioners appealed the trial courts judgment of conviction for Less Serious Physical Injuries, they are
deemed to have abandoned their right to invoke the prohibition on doublejeopardy since it becomes the duty of the
appellate court to correct errors as may be found in the assailed judgment. Petitioners could not have been placed
twice in jeopardy when the CA set aside the ruling of the RTC by finding them guilty of Violation of Domicile as
charged in the Information instead of Less Serious Physical Injuries.
The Court adopts the findings of factand conclusions of law of the CA. In their testimony before the open court as
well as in the pleadings they filed, neither Geroche denied that hewas a barangay captain nor Garde and Marfil
refuted that they were CAFGU members. In holding such positions, they are considered as public
officers/employees. 16
As to the penalty imposed by the CA, however, We modify the same. Under Article 128 of the RPC, the penalty shall
be prision correccionalin its medium and maximum periods (two [2] years, four [4] months and one [1] day to six [6]
years) if Violation of Domicile be committed at nighttime or if any papers or effects not constituting evidence of a
crime be not returned immediately after the search made by the offender. In this case, petitioners barged in the
house of Baleriano while they were sleeping at night and, in addition, they took away with them his airgun.
In imposing a prison sentence for an offense punished by the RPC, the Indeterminate Sentence Law requires 17
courts to impose upon the accused an indeterminate sentence. The maximum term of the prison sentence shall be
that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code. Yet 1wphi1
the penalty prescribed by Article 128 of the RPC is composed of only two, not three, periods. In which case, Article
65 of the same Code requires the division into three equal portions the time included in the penalty, forming one
period of each of the three portions. Applying the provision, the minimum, medium and maximum periods of the
penalty prescribed by Article 128 are:
Minimum 2 years, 4 months and 1 day to 3 years, 6 months and 20 days

Medium 3 years, 6 months and 21 days to 4 years, 9 months and 10 days
Maximum 4 years, 9 months and 11 days to 6 years
Thus, applying in this case, the maximum term should be within the medium period or from 3 years, 6 months and
21 days to 4 years, 9 months and 10 days, in light of the provisions of Article 64 of the Revised Penal Code that if
there are no other mitigating or aggravating circumstances attending the commission of the crime, the penalty shall
be imposed in its medium period.
On the other hand, the minimum term shall be within the range of the penalty next lower to that prescribed by the
RPC for the crime. The penalty next lower to that prescribed by Article 128 is arresto mayor in its maximum period to
prision correccional in its minimum period (or 4 months and 1 day to 2 years and 4 months).
The foregoing considered, in view of the attending circumstances in this case, the Court hereby sentences the
petitioners to suffer the indeterminate penalty from two (2) years and four (4) months of prision correccional, as
minimum, to four ( 4) years, nine (9) months and ten (10) days of prision correccional, as maximum.
WHEREFORE, the Court AFFIRMS the Decision dated November 18, 2005 and Resolution dated June 19, 2007 of
the Court of Appeals in CAG.R. CR No. 26418 finding petitioners Edigardo Geroche, Roberto Garde and Generoso
Marfil alias "Tapol" guilty beyond reasonable doubt of Violation of Domicile, penalized under Article 128 of the
Revised Penal Code, with the MODIFICATION that the penalty that should be imposed is an indeterminate sentence
from two (2) years and four (4) months of prision correccional, as minimum, to four (4) years, nine (9) months and
ten (10) days of prision correccional, as maximum.
SO ORDERED.
G.R. No. L-6025 May 30, 1964

vs.
AMADO V. HERNANDEZ, ET AL., accused,
AMADO V. HERNANDEZ, ET AL., defendants-appellants.
-----------------------------
G.R. No. L-6026 May 30, 1964

vs.
BAYANI ESPIRITU, ET AL., accused,
BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.
LABRADOR, J.:
This is the appeal prosecuted by the defendants from the judgment rendered by the Court of First Instance of
Manila, Hon. Agustin P. Montesa, presiding, in its Criminal Case No. 15841, People vs. Amado V. Hernandez, et al.,
and Criminal Case No. 15479, People vs. Bayani Espiritu, et al. In Criminal Case No. 15841 (G.R. No. L-6026) the
charge is for Rebellion with Multiple Murder, Arsons and Robberies; the appellants are Amado V. Hernandez, Juan
J. Cruz, Genaro de la Cruz, Amado Racanday, Fermin Rodillas and Julian Lumanog; Aquilino Bunsol, Adriano
Samson and Andres Baisa, Jr. were among those sentenced in the judgment appealed from, but they have
withdrawn their appeal. In Criminal Case No. 15479 (G.R. No. L-6026) the charge is for rebellion with murders,
arsons and kidnappings; the accused are Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.; they all appealed
but Andres Balsa, Jr. withdrew his appeal.
The information filed against defendants Hernandez and others in Criminal Case No. 15481 alleged:
I. That on or about March 15, 1945, and for some time before the said date and continuously thereafter, until
the present time, in the City of Manila, Philippines, and the place which they had chosen as the nerve center
of all their rebellious activities in the different parts of the Philippines, the said accused, conspiring,
confederating and cooperating with each other, as well as with the thirty-one (31) defendants charged in
Criminal Cases Nos. 19071, 14082, 14270, 14315 and 14344 of the Court of First Instance of Manila
(decided May 11, 1951) and also with others whose whereabouts and identities are still unknown, the said
accused and their other co-conspirators, being then high ranking officers and/or members of, or otherwise
affiliated with the Communist Party of the Philippines (P.K.P.), which is now actively engaged in an armed
rebellion against the Government of the Philippines thru act theretofore committed and planned to be further
committed in Manila and other places in the Philippines, and of which party the "Hukbong Mapagpalaya Ng
Bayan"(H.M.B.) otherwise or formerly known as the "Hukbalahaps" (Huks), unlawfully and did then and there
willfully, unlawfully and feloniously help, support, promote, maintain, cause, direct and/or command the
"Hukbong Mapagpalaya Ng Bayan" (H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and take arms
against the Republic of the Philippines, or otherwise participate in such armed public uprising, for the
purpose of removing the territory of the Philippines from the allegiance to the government and laws thereof
as in fact the said "Hukbong Mapagpalaya Ng Bayan" or "Hukbalahaps" have risen publicly and taken arms
to attain the said purpose by then and there making armed raids, sorties and ambushes, attacks against
police, constabulary and army detachments as well as innocent civilians, and as a necessary means to
commit the crime of rebellion, in connection therewith and in furtherance thereof, have then and there
committed acts of murder, pillage, looting, plunder, arson, and planned destruction of private and public
property to create and spread chaos, disorder, terror, and fear so as to facilitate the accomplishment of the
aforesaid purpose, as. follows, to wit: (Enumeration of thirteen attacks on government forces or civilians by
Huks on May 6, 1946, August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June, 1946, April 28,
1949, August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March
29, 1950.)
II. That during the period of time and under the same circumstances herein-above indicated the said
accused in the above-entitled case, conspiring among themselves and with several others as aforesaid,
willfully, unlawfully and feloniously organized, established, led and/or maintained the Congress of Labor
Organizations (CLO), formerly known as the Committee on Labor Organizations (CLO), with central offices
in Manila and chapters and affiliated or associated labor unions and other "mass organizations" in different
places in the Philippines, as an active agency, organ, and instrumentality of the Communist Party of the
Philippines (P.K.P.) and as such agency, organ, and instrumentality, to fully cooperate in, and synchronize its
activities as the CLO thus organized, established, led and/or maintained by the herein accused and their
co-conspirators, has in fact fully cooperated in and synchronized its activities with the activities of the
"Hukbong Mapagpalaya Ng Bayan" (H.M.B.) and other organs, agencies, and instrumentalities of the
Communist Party of the Philippines (P.K.P.), to thereby assure, facilitate, and effect the complete and
permanent success of the above-mentioned armed rebellion against the Government of the Philippines.
The information filed against the defendants in Criminal Case No. 15479, Bayani Espiritu Andres Baisa, Jr. and
Teopista Valerio, alleges:
That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto and continuously
up to the present time, in the City of Manila, the seat of the government of the Republic of the Philippines,
which the herein accused have intended to overthrow, and the place chosen for that purpose as the nerve
center of all their rebellious atrocities in the different parts of the country, the said accused being then high
ranking officials and/or members of the Communist Party of the Philippines (P.K.P.) and/or of the "Hukbong
Mapagpalaya Ng Bayan" (H.M.B.) otherwise or formerly known as the "Hukbalahaps" (HUKS), the latter
being the armed forces of said Communist Party of the Philippines; having come to an agreement with the
29 of the 31 accused in Criminal Cases Nos. 14071, 14082, 14270, 14315, 14344 of the Court of First
Instance of Manila and decided to commit the crime of rebellion, and therefore, conspiring and confederating
with all of the 29 accused in said criminal cases, acting in accordance with their conspiracy and in
furtherance thereof, together with many others whose whereabouts and identities are still unknown up to the
filing of this information, and helping one another, did then and there willfully, unlawfully and feloniously
promote maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng Bayan", (HMB) or the
Hukbalahaps (HUKS) to rise publicly and take Arms against the Government or otherwise participate therein
for the purpose of overthrowing the same, as in fact, the said "Hukbong Mapagpalaya Ng Bayan" or
Hukbalahap (HUKS) have risen publicly and taken arms against the Government, by then and there making
armed raids, sorties and ambushes, attacks against police, constabulary and army detachment, and as a
necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof, by
then and there committing wanton acts of murder, spoilage, looting, arson, kidnappings, planned destruction
of private and public buildings, to create and spread terrorism in order to facilitate the accomplishment of the
aforesaid purpose, as follows to wit: (Enumeration of thirteen attacks on Government forces or civilians by
Huks on May 6, 1946. August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June 1946, April 28,
1949, August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March
29, 1950).
A joint trial of both cases was held, after which the court rendered the decision subject of the present appeals.
APPEAL OF AMADO V. HERNANDEZ
After trial the Court of First Instance found, as against appellant Amado V. Hernandez, the following: (1) that he is a
member of the Communist Party of the Philippines and as such had aliases, namely, Victor or Soliman; (2) that he
was furnished copies of "Titis", a Communist publication, as well as other publications of the Party; (3) that he held
the position of President of the Congress of Labor Organizations; (4) that he had close connections with the
Secretariat of the Communist Party and held continuous communications with its leaders and its members; (5) that
he furnished a mimeographing machine used by the Communist Party, as well as clothes and supplies for the
military operations of the Huks; (6) that he had contacted well-known Communists coming to the Philippines and
had gone abroad to the WFTU conference Brussels, Belgium as a delegate of the CLO, etc. Evidence was also
received by the court that Hernandez made various speeches encouraging the people to join in the Huk movement
in the provinces.
The court also found that there was a close tie-up between the Communist Party and the Congress of Labor
Organizations, of which Hernandez was the President, and that this Congress was organized by Hernandez in
conjunction with other Huks, namely: Alfredo Saulo, Mariano Balgos, Guillermo Capadocia, etc.
We will now consider the nature and character of both the testimonial as well as the documentary evidence,
independently of each other, to find out if the said evidence supports the findings of the court.
Testimonial Evidence
Amado V. Hernandez took the oath as member of the Communist Party in the month of October, 1947, at the offices
of the Congress of Labor Organizations at 2070 Azcarraga in the presence of Guillermo Capadocia, Ramon Espiritu,
Pedro Castro, Andres Balsa, etc. As a Communist he was given the pseudonyms of Victor and Soliman, and
received copies of the Communist paper "Titis". He made various speeches on the following dates and occasions:
(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza Miranda, in which he
announced that the people will soon meet their dear comrade in the person of Comrade Luis Taruc.
(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at which occasion Balgos
told Goufar that the PKM, CLO and the Huks are in one effort that the PKM are the peasants in the field and
the Huks are the armed forces of the Communist Party; and the CLO falls under the TUD of the Communist
Party.1wph1.t
(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of the World Federation of
Trade Unions and after arrival from abroad a dinner was given to him by the people of Gagalangin, at which
Hernandez delivered a speech and he said that he preferred to go with the Huks because he felt safer with
them than with the authorities of the Government.
(4) In April, 1949, he made a speech before a group of tenants in Malabon attacking the frauds in the 1947
elections, graft and corruption in the elections and that if improvement cannot be made by the ballots, they
could be made by bullets; and enjoined the people to go to the hills and join Luis Taruc the head of the
dissidents in the Philippines.
(5) On October 2, 1949 he delivered a speech on the occasion of the commemoration of the World Peace at
the CLO headquarters at 330 P. Campa. He attacked the city mayor and incited the people to go to
Balintawak and see Bonifacio there and thereafter join four comrades under the leadership of Luis Taruc.
(6) On October 16, 1949 he delivered a speech before a convention of the unemployed at 330 P. Campa. He
asked the unemployed to approve a resolution urging the Government to give them jobs. In conclusion he
said that if the Government fails to give them jobs the only way out was to join the revolutionary forces
fighting in the hills. He further said that Mao Tse Tung, leader of the People's Army in China, drove Chiang
Kai Shek from his country, and that Luis Taruc was also being chased by Government forces run by puppets
like Quirino, etc.
(7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk Hernandez expressed
regret that two foremost leaders of the CLO, Balgos and Capadocia, had gone to the field to join the
liberation army of the HMB, justifying their going out and becoming heroes by fighting in the fields against
Government forces until the ultimate goal is achieved.
The above evidence was testified to by Florentino Diolata who was the official photographer of the CLO since
August, 1948.
On the tie-up between the Communist Party and the CLO Guillermo Calayag, a Communist and a Huk from 1942 to
1950, explained:
(1) The ultimate goal of the Communist Party is to overthrow the president government by force of aims and
violence; thru armed revolution and replace it with the so-called dictatorship of the proletariat the Communist
Party carries its program of armed overthrow of the present government by organizing the HMB and other
forms of organization's such as the CLO, PKM, union organizations, and the professional and intellectual
group; the CLO was organized by the Trade Union Division TUD of the Communist Party.
(2) A good majority of the members of the Executive Committee and the Central Committee of the CLO were
also top ranking officials of the Communist Party; activities undertaken by the TUD - the vital undertaking of
the TUD is to see that the directives coming from the organizational bureau of the Communist Party can be
discussed within the CLO especially the Executive Committee. And it is a fact that since a good majority of
the members of the Executive Committee are party members, there is no time, there is no single time that
those directives and decisions of the organizational department, thru the TUD are being objected to by the
Executive Committee of the CLO. These directives refer to how the CLO will conduct its functions. The
executive committee is under the chairmanship of accused Amado V. Hernandez.
(3) The CLO played its role in the overall Communist program of armed overthrow of the present
government and its replacement by the dictatorship of the proletariat by means of propaganda - by
propagating the principles of Communism, by giving monetary aid, clothing, medicine and other forms of
material help to the HMB. This role is manifested in the very constitution of the CLO itself which expounded
the theory of classless society and the eradication of social classes (par. 5, Sec. 1, Art. 2, page 18 of the
CLO Constitution contained in the Fourth Annual Convention Souvenir Program of the CLO Exh. "V-1579").
Thru propaganda, the CLO promoted the aims of Communist Party and disseminated Communist ideas by:
(a) The conspicuous display of the portrait or, pictures of Crisanto Evangelista (Exh. V-1662),
founder of Communism in the Philippines, in the session hall of the CLO headquarters at 2070
Azcarraga and then at 330 P. Campa;
(b) The distribution of foreign communist reading materials such as the World Federation of Trade
Union Magazine, International Union of Students magazine, Voice magazine of the marine cooks of
the CLO, World Committee of the Defenders of the Peace magazine, Free Bulgaria magazine,
Soviet Russia Today magazine and World Federation of Democratic Youth magazine (Exhs. V-911,
V-907, V-910, V-899, V-912, V-853, W-996 and V-967);
(c) The publication and distribution of some local subversive publications such as the "Titis", "Bisig",
Kidlat", which are Communist Party organs; "The Philippine Labor Demands Justice" and "Hands Off
Korea" authored by accused Amado V. Hernandez;
(d) Principles of Communism were also propagated thru lectures, meetings, and by means of
organization of committees in the educational department as well as researches in the Worker's
Institute of the CLO.
(4) The CLO also helped carry out the program of the Communist Party thru infiltration of party members
and selected leaders of the HMB within the trade unions under the control of the CLO. The Communist Party
thru the CLO assigned Communist Party leaders and organizers to different factories in order to organize
unions. After the organization of the union, it will affiliate itself with the CLO thru the Communist leaders and
the CLO in turn, will register said union with the Department of Labor; and the orientation and indoctrination
of the workers is continued in the line of class struggle. After this orientation and infiltration of the Communist
Party members and selected leaders of the HMB with the trade unions under the control of the CLO is
already achieved and the group made strong enough to carry out its aims, they will begin the sporadic
strikes and the liquidation of anti-labor elements and anti-Communist elements and will create a so-called
revolutionary crisis. That revolutionary crisis will be done for the party to give directives to the HMB who are
fighting in the countrysides and made them come to the city gates. The entry of the HMB is being paved by
the simultaneous and sporadic strikes, by ultimate general strikes thru the management of the CLO.
Important Documents Submitted at Trial
1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or was referred to as
"Victor" or "Soliman".
(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling the latter of his
sympathies for other communists, describing his experiences with Communists abroad, telling Julie
to dispose of materials that may be sent by Victor. (Exh. D-2001-2004)
(b) "Paano Maisasagawa, etc." mentions different groups of labor unions of which Victor heads
one group, consisting of the MRRCO, PTLD, PGWU, EMWU and IRWU (Exh. C-2001-2008) Cadres
assigned to different industries. (Exh. V-40-41)
(c) Handwritten certificate of Honofre Mangila states that he knew Amado Hernandez as Victor from
co-party members Hugo and Ely. (Exh. LL)
(d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to Victor. (Exh. 1103)
(e) Saulo's letter about his escape, asks Victor why his press statement was not published in the
newspapers. (Exh. C-362) Letter was however published by Hernandez in the Daily Mirror.
(f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to Victor. (Exh. D-463-64)
(g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at Pampanga St. to bring to
the latter communications from the Communist Party. (Exh. D-1203) That Soliman was given copies
of "Titis". (Exh. D-1209)
(h) SEC directions to Politburo members, Soliman not to be involved with Nacionalista Rebels. (Exh.
F-92-93. SEC)
(i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman has "tendencies of
careerism and tendency to want to deal with leaders of the party"; that he should be asked to choose
to go underground or fight legally. (Exh. F-562)
(j) Explanation given by Hernandez why he did not join Saulo in going underground. (Exh. V-87) (1)
His election as councilor until December, 1951. (Exhs. V-42, W-9) (2) His election as President of
CLO until August of following year. (Exhs. V-42, W-9)
2. Letters and Messages of Hernandez.
(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)
(b) To SOBSI Jakarta that Filipinos are joining other communist countries of the East. (Exh. V-82)
(c) Press release on Saulo's disappearance published by Amado Hernandez. (Exh. W-116-120)
(d) To Hugh and Eddie, July 8, 1949 Extends greetings to National Union of Marine Cooks and
Stewards, states that labor has one common struggle "the liberation of all the peoples from the
chains of tyranny, fascism and imperialism". (Exh. V-259)
(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-89)
(f) Appeal to the Women and Asia. (Exh. V-5-10)
(g) Letter to Julie (Exh. V-2001-2004)
(h) Letter to Chan Lieu - states that leaders during the war are being persecuted, like Taruc. Tells of
reward of P100,000.00 on Taruc's head. (Exh. X-85-88)
(i) Letter to John Gates of the Daily Worker condemns Wall Street maneuvers; corruption and
graft in Quirino administration, etc. (Exh. V-83)
(j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist. (Exh. V-79)
(k) Communication of Hernandez to CLO at MRRCO Praises Balgos and Capadocia for joining
the Huks. (Exhs. V-12-22, V-289)
(l) "Philippine labor Demands Justice" Attacks czars of Wall Street and U.S. Army and
Government. (Exh. V-94) .
(m) Letter to Taruc June 28, 1948.-States solidarity among the CLO Huks and PKM. Attacks North
Atlantic Pact. Praises Mao Tse Tung (contained in Exh. V-94)
(n) "Philippines Is Not A Paradise" States of a delegation to Roxas attacking unemployment. (Exh.
V-90-93)
(o) Article "Progressive Philippines" (Exh. V-287)
(p) Article "Hands Off Korea" (Exhs. V-488-494, 495-501, 509-515, W-25-26)
(q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-38)

(r) Press statement of Hernandez opposes acceptance of decorations from Greece by Romulo.
(Exh. V-72)
3. Other Activities of Hernandez.
(a) Hernandez received clothes from Pres. Lines thru P. Campa, which clothes he sent to the field.
Letters show of sending of supplies to Huks. (Exh. S-383)
(b) Hernandez was asked to furnish portable typewriter, which he did furnish to Huks. (Exh. C-364)
(c) Hernandez brought Taruc's letter about facts and incidents about Huks to Bulosan for inclusion in
Bulosan's book. (Exh. FF-1)
(d) Had conference with Kumar Goshal a Hindu, about the Huks and their armed forces.
(Photographs, Exhs. X-6 RR-54-55A)
(e) Supervised taking of pictures of sons of Capadocia and Joven. (Photographs, Exhs. T-1, RR-136-
138A)
(f) Had knowledge of the going underground of Capadocia and Balgos and issued press release
about their going underground. (Exh. F-91)
(g) Victor mentioned to continue as contact for Chino. (Exh. C-362)
(h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc. (Exh. D-451-451-A)
(i) Associated with fellow ranking Communist leaders.
The Court upon consideration of the evidence submitted, found (1) that the Communist Party was fully organized as
a party and in order to carry out its aims and policies a established a National Congress, a Central Committee (CC),
Politburo PB, Secretariat (SEC), Organization Bureau (OB), and National Courier or Communication Division (NCD),
each body performing functions indicated in their respective names; (2) that in a meeting held on August 11, 1950
the SEC discussed the creation of a Military Committee of the Party and a new GHQ, under which on September
29, 1950 the SEC organized a special warfare division, with a technological division; (3) that on May 5, 1950 a body
known as the National Intelligence Division was created, to gather essential military intelligence and, in general, all
information useful for the conduct of the armed struggle (4) that a National Finance Committee was also organized
as a part of the Politburo and answerable to it; (5) that the country was divided into 10 Recos, the 10th Reco
comprising the Manila and suburbs command; (6) that since November, 1949 the CPP had declared the existence
of a revolutionary situation and since then the Party had gone underground and the CPP is leading the armed
struggle for national liberation, and called on the people to organize guerrillas and coordinate with the HMB on the
decisive struggle and final overthrow of the imperialist government; (7) that in accordance with such plan the CPP
prepared plans for expansion and development not only of the Party but also of the HMB; the expansion of the
cadres from 3,600 in July 1950 to 56,000 in September 1951, the HMB from 10,800 in July 1950 to 172,000 in
September 1951, et seq.
Around the month of January, 1950 it was decided by the CPP to intensify HMB military operations for political
purposes. The Politburo sanctioned the attacks made by the Huks on the anniversary of the HMB on March 25,
1950. The HMB attacks that were reported to the PB were those made in May, 1946; June, 1946; April 10, 1947;
May 9, 1947; August 19, 1947; August 25, 1950; August 26, 1950; October 15 and 17, 1950; May 6, 1946; August 6,
1946; April 10, 1947; May 9, 1947; August 19, 1947; April 29, 1949; August 25, 1950; August 26, 1950; September
12, 1950; March 26, 1950; March 29, 1950.
The theory of the prosecution, as stated in the lower court's decision, is as follows:
The evidence does not show that the defendants in these cases now before this Court had taken a direct
part in those raids and in the commission of the crimes that had been committed. It is not, however, the
theory of the prosecution that they in fact had direct participation in the commission of the same but rather
that the defendants in these cases have cooperated, conspired and confederated with the Communist Party
in the prosecution and successful accomplishment of the aims and purposes of the said Party thru the
organization called the CLO (Congress of Labor Organizations).
The Court found that the CLO is independent and separate from the CPP, organized under the same pattern as the
CPP, having its own National Congress, a Central Committee (which acts in the absence of and in representation of
the National Congress), an Executive Committee (which acts when the National Congress and the Executive
Committee are not in session), and seven permanent Committees, namely, of Organization, Unemployment and
Public Relations, Different Strikes and Pickets, Finance, Auditing, Legislation and Political Action. Members of the
Communist Party dominate the committees of the CLO. The supposed tie-up between CPP and the CLO of which
Hernandez was the President, is described by the court below in finding, thus:
Just how the CLO coordinates its functions with the Communist Party organ under which it operates was explained
by witness Guillermo S. Calayag, one-time ranking member of the Communist Party and the CLO who typewrites
the "Patnubay sa Education" from a handwritten draft of Capadocia, which is one of the texts used in the Worker's
institute of the CLO. According to him, the CLO plays its role by means of propaganda, giving monetary aid,
clothing, medicine and other material forms of help to the HMB, which constitutes the armed forces of the
Communist Party. Propaganda is done by lectures, meetings, and the organization of committees of the educational
department as well as researches at the CLO Worker's Institute.
Another way of helping the Communist Party of the Philippines is by allowing the Communist Party leaders
to act as organizers in the different factories in forming a union. These Party Members help workers in the
factories to agitate for the eradication of social classes and ultimately effect the total emancipation of the
working classes thru the establishment of the so-called dictatorship of the proletariat. It is the duty of these
Communist Party members to indoctrinate uninitiated workers in the union to become proselytes of the
Communist Party ideology. After the right number is secured and a union is formed under a communist
leader, this union is affiliated with the CLO and this in turn registers the same with the Department of Labor.
The orientation and indoctrination of the masses is continued with the help of the CLO. The primary
objective of the CLO is to create what is called a revolutionary crisis. It seeks to attain this objective by first
making demands from the employers for concessions which become more and more unreasonable until the
employers would find it difficult to grant the same. Then a strike is declared. But the strikes are only
preparation for the ultimate attainment of the Communist goal of armed overthrow of the government. After
the workers in the factories have already struck in general at the behest of the Communist Party thru the
CLO a critical point is reached when a signal is given for the armed forces of the Communist Party, the
HMB, to intervene and carry the revolution now being conducted outside to within the city.
On the basis of the above findings, the court below found Hernandez guilty as principal of the crime charged against
him and sentenced him to suffer the penalty of reclusion perpetua with the accessories provided by law, and to pay
the proportionate amount of the costs.
Our study of the testimonial and documentary evidence, especially those cited by the Court in its decision and by
the Solicitor General in his brief, discloses that defendant-appellant Amado V. Hernandez, as a Communist, was an
active advocate of the principles of Communism, frequently exhorting his hearers to follow the footsteps of Taruc
and join the uprising of the laboring classes against capitalism and more specifically against America and the
Quirino administration, which he dubbed as a regime of puppets of American imperialism. But beyond the open
advocacy of Communistic Theory there appears no evidence that he actually participated in the actual conspiracy to
overthrow by force the constituted authority.
Hernandez is the founder and head of the CLO. As such, what was his relation to the rebellion? If, as testified to by
Guillermo S. Calayag, the CLO plays merely the role of propagation by lectures, meetings and organization of
committees of education by Communists; if, as stated, the CLO merely allowed Communist Party leaders to act as
organizers in the different factories, to indoctrinate the CLO members into the Communist Party and proselytize
them to the Communist ideology; if, as also indicated by Calayag, the CLO purports to attain the ultimate overthrow
of the Government first by making demands from employers for concessions until the employers find it difficult to
grant the same, at which time a strike is declared; if it is only after the various strikes have been carried out and a
crisis is thereby developed among the laboring class, that the Communist forces would intervene and carry the
revolution it is apparent that the CLO was merely a stepping stone in the preparation of the laborers for the
Communist' ultimate revolution. In other words, the CLO had no function but that of indoctrination and preparation of
the members for the uprising that would come. It was only a preparatory organization prior to revolution, not the
revolution itself. The leader of the CLO therefore, namely Hernandez, cannot be considered as a leader in actual
rebellion or of the actual uprising subject of the accusation. Hernandez, as President of the CLO therefore, by his
presidency and leadership of the CLO cannot be considered as having actually risen up in arms in rebellion against
the Government of the Philippines, or taken part in the conspiracy to commit the rebellion as charged against him in
the present case; he was merely a propagandist and indoctrinator of Communism, he was not a Communist
conspiring to commit the actual rebellion by the mere fact of his presidency of the CLO.
The court below declares that since November 1949 the Communist Party of the Philippines had declared the
existence of the revolutionary situation and since then the Party had gone underground, with the CPP leading the
struggle for national integration and that in the month of January 1950, it was decided by the said Party to intensify
the HMB military operations for political purposes. The court implicates the appellant Hernandez as a co-conspirator
in this resolution or acts of the Communist Party by his mere membership thereto. We find this conclusion
unwarranted. The seditious speeches of Hernandez took place before November, 1949 when the CPP went
underground. The court below has not been able to point out, nor have We been able to find among all acts
attributed to Hernandez, any single fact or act of his from which it may be inferred that he took part in the
deliberations declaring the existence of a revolutionary situation, or that he had gone underground. As a matter of
fact the prosecution's evidence is to the effect that Hernandez refused to go underground preferring to engage in
what they consider the legal battle for the cause.
We have also looked into the different documents which have been presented at the time of the trial and which were
confiscated from the office of the Politburo of the Communist Party. The speeches of Hernandez were delivered
before the declaration by the Communist Party of a state of revolutionary situation in 1949. Neither was it shown
that Hernandez was a member of the Executive Committee, or of the SEC, or of the Politburo of the Communist
Party; so NO presumption can arise that he had taken part in the accord or conspiracy declaring a revolution. In
short, there has been no evidence, direct or indirect, to relate or connect the appellant Hernandez with the uprising
or the resolution to continue or maintain said uprising, his participation in the deliberations leading to the uprising
being inferred only from the fact that he was a communist.
The practice among the top Communists, as declared by the trial court appears to have been for important
members, if they intend actually to join the rebellion, to go underground, which meant leaving the city, disappearing
from sight and/or secretly joining the forces in the field.
The document, Exhibit F-562, which is quoted in the decision, contains the directive of the SEC of September 1,
1950, to Saulo and Hernandez, which reads:
11. In view of the new developments in the city, send out Elias who prefers to work outside. Present problem
of fighting legally to Com. Soliman. If Soliman is prepared for martyrdom, retain him to fight legally. If not,
send him out with Elias. Same goes with Com. Mino and other relatively exposed mass leaders.
And the lower court itself found that whereas Saulo went underground and joined the underground forces outside
the City, Hernandez remained in the City, engaged in the work of propaganda, making speeches and causing the
publication of such matters as the Communist Party leaders directed him to publish.
That Hernandez refused to go underground is a fact which is further corroborated by the following reasons
(excuses) given by him for not going underground, namely (1) that his term of councilor of the City of Manila was to
extend to December, 1951; and (2) that he was elected President of the CLO for a term which was to end the year
1951.
As a matter of fact the SEC gave instructions to Hernandez not to be involved with Nacionalista Rebels, and
reported to the Politburo that Hernandez "has tendencies of careerism, and tending to want to deal with leaders of
the Nacionalista Party instead of following CPP organizational procedures."
The court below further found that Hernandez had been furnishing supplies for the Huks in the field. But the very
document dated December 3, 1949, Exhibit D-420422, cited in the decision (printed, p. 49), is to the effect that
clothes and shoes that Hernandez was supposed to have sent have not been received. It is true that some clothes
had been sent thru him to the field, but these clothes had come from a crew member of a ship of the American
President Lines. He also, upon request, sent a portable typewriter to the SEC or Politburo. Furthermore, a certain
Niagara Duplicating machine received by Hernandez from one Rolland Scott Bullard a crew member of the SS
President Cleveland, appease later to have been forwarded by him to the officers of the SEC or the Politburo.
Lastly, it further appears that Taruc and other CPP leaders used to send notes to appellant Hernandez, who in turn
issued press releases for which he found space in the local papers. His acts in this respect belong to the category of
propaganda, to which he appears to have limited his actions as a Communist.
The acts of the appellant as thus explained and analyzed fall under the category of acts of propaganda, but do not
prove that he actually and in fact conspired with the leaders of the Communist Party in the uprising or in the actual
rebellion, for which acts he is charged in the information. And his refusal to go underground because of his political
commitments occasioned by his term of election as president of the CLO and the impressions caused by his acts on
the Communist leaders, to the effect that he was in direct communication or understanding with the Nacionalista
Party to which he was affiliated, creates in Us the reasonable doubt that it was not his Communistic leanings but his
political ambitions, that motivated his speeches sympathizing with the Huks. For which reason We hold that the
evidence submitted fails to prove beyond reasonable doubt that he has conspired in the instigation of the rebellion
for which he is held to account in this criminal case.
The question that next comes up for resolution is: Does his or anyone's membership in the Communist Party per
se render Hernandez or any Communist guilty of conspiracy to commit rebellion under the provisions of Article 136
of the Revised Penal Code? The pertinent provision reads:
ART. 136. Conspiracy and proposal to commit rebellion or insurrection. The conspiracy and proposal to
commit rebellion or insurrection shall be punished, respectively, by prision correccional in its maximum
period and a fine which shall not exceed 5,000 pesos, and by prision correccional in its medium period and a
fine not exceeding 2,000 pesos.
The advocacy of Communism or Communistic theory and principle is not to be considered as a criminal act of
conspiracy unless transformed or converted into an advocacy of action. In the very nature of things, mere advocacy
of a theory or principle is insufficient unless the communist advocates action, immediate and positive, the actual
agreement to start an uprising or rebellion or an agreement forged to use force and violence in an uprising of the
working class to overthrow constituted authority and seize the reins of Government itself. Unless action is actually
advocated or intended or contemplated, the Communist is a mere theorist, merely holding belief in the supremacy of
the proletariat a Communist does not yet advocate the seizing of the reins of Government by it. As a theorist the
Communist is not yet actually considered as engaging in the criminal field subject to punishment. Only when the
Communist advocates action and actual uprising, war or otherwise, does he become guilty of conspiracy to commit
rebellion. Borrowing the language of the Supreme Court of the United States:
In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can
only be justified by reference to the relationship of that status or conduct to other concededly criminal activity
(here advocacy of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept
of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment.
Membership, without more, in an organization engaged in illegal advocacy, it is now said, has not heretofore
been recognized by this Court to be such a relationship. ... .
What must be met, then, is the argument that membership, even when accompanied by the elements of
knowledge and specific intent, affords an insufficient quantum of participation in the organization's alleged
criminal activity, that is, an insufficiently significant form of aid and encouragement to permit the imposition of
criminal sanctions on that basis. It must indeed be recognized that a person who merely becomes a member
of an illegal organization, by that "act" alone need be doing nothing more than signifying his assent to its
purposes and activities on one hand, and providing, on the other, only the sort of moral encouragement
which comes from the knowledge that others believe in what the organization is doing. It may indeed be
argued that such assent and encouragement do fall short of the concrete, practical impetus given to a
criminal enterprise which is lent for instance by a commitment on the part of the conspirator to act in
furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his approval of a
criminal enterprise by the very fact of his membership without thereby necessarily committing himself to
further it by any act or course of conduct whatever. (Scales v. United States, 367 U.S. 203, 6 L. ed. 782)
The most important activity of appellant Hernandez appears to be the propagation of improvement of conditions of
labor through his organization, the CLO. While the CLO of which he is the founder and active president, has
communistic tendencies, its activity refers to the strengthening of the unity and cooperation between labor elements
and preparing them for struggle; they are not yet indoctrinated in the need of an actual war with or against
Capitalism. The appellant was a politician and a labor leader and it is not unreasonable to suspect that his labor
activities especially in connection with the CLO and other trade unions, were impelled and fostered by the desire to
secure the labor vote to support his political ambitions. It is doubtful whether his desire to foster the labor union of
which he was the head was impelled by an actual desire to advance the cause of Communism, not merely to
advance his political aspirations.
Insofar as the appellant's alleged activities as a Communist are concerned, We have not found, nor has any
particular act on his part been pointed to Us, which would indicate that he had advocated action or the use of force
in securing the ends of Communism. True it is, he had friends among the leaders of the Communist Party, and
especially the heads of the rebellion, but this notwithstanding, evidence is wanting to show that he ever attended
their meetings, or collaborated and conspired with said leaders in planning and encouraging the acts of rebellion, or
advancing the cause thereof. Insofar as the furnishing of the mimeograph machine and clothes is concerned, it
appears that he acted merely as an intermediary, who passed said machine and clothes on to others. It does not
appear that he himself furnished funds or material help of his own to the members of the rebellion or to the forces of
the rebellion in the field.
But the very act or conduct of his in refusing to go underground, in spite of the apparent desire of the chief of the
rebellion, is clear proof of his non-participation in the conspiracy to engage in or to foster the rebellion or the
uprising.
We next consider the question as to whether the fact that Hernandez delivered speeches of propaganda in favor of
Communism and in favor of rebellion can be considered as a criminal act of conspiracy to commit rebellion as
defined in the law. In this respect, the mere fact of his giving and rendering speeches favoring Communism would
not make him guilty of conspiracy, because there was no evidence that the hearers of his speeches of propaganda
then and there agreed to rise up in arms for the purpose of obtaining the overthrow of the democratic government
as envisaged by the principles of Communism. To this effect is the following comment of Viada:
CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que el dia que se anunciara
la subasta de consumes se echaran a la calle para conseguir aunque fuera preciso acudir a la fuerza el
reparto entre los vecinos ricos solamente, sera responsable de un delito de conspiracion para la sedicion?
El Tribunal Supreme ha resuelto la negative al casar cierta sentencia de la Audiencia de Valencia, que
entendio lo contrario: "Considerando que, con areglo a lo que dispone el art. 4. del Codigo Penal, hay
conspiracion cuando dos o mas personas se conciertan para la execution de un delito y resuelven cmeterlo;
y no constando que existiera ese concierto en cuanto a los hechos que se refieren en la tercera pregunta
del veredicto, pues en ella solo se habla de los actos de induccion que el procesado realizo, sin expresar el
efecto que la mismo produjo en el animo de las personas a quienes se dirigian, ni si estas aceptaron o no lo
que se las propuso, resulta evidence que faltan los clementos integrantes de la conspiracion, etc." (Se. de 5
de Julio de 1907, Gaceta de 7 de Enero de 1909.) (Viada, Tomo I, Codigo Penal, p. 152)
In view of all the above circumstances We find that there is no concrete evidence proving beyond reasonable doubt
that the appellant (Hernandez) actually participated in the rebellion or in any act of conspiracy to commit or foster
the cause of the rebellion. We are constrained, in view of these circumstances, to absolve, as We hereby absolve,
the appellant Amado V. Hernandez from the crime charged, with a proportionate share of the costs de oficio.
APPEAL OF OTHER DEFENDANTS-APPELLANTS
All the other defendants were found guilty as accomplices in the crime of rebellion as charged in the information and
were each sentenced to suffer the penalty of 10 years and 1 day of prision mayor, with the accessories provided by
law, and to pay their proportionate share of the costs.
Legal Considerations. Before proceeding to consider the appeals of the other defendants, it is believed useful if
not necessary to lay dawn the circumstances or facts that may be determinative of their criminal responsibility or the
existence or nature thereof. To begin with, as We have exhaustively discussed in relation to the appeal of
Hernandez, we do not believe that mere membership in the Communist Party or in the CLO renders the member
liable, either of rebellion or of conspiracy to commit rebellion, because mere membership and nothing more merely
implies advocacy of abstract theory or principle without any action being induced thereby; and that such advocacy
becomes criminal only if it is coupled with action or advocacy of action, namely, actual rebellion or conspiracy to
commit rebellion, or acts conducive thereto or evincing the same.
On the other hand, membership in the HMB (Hukbalahap) implies participation in an actual uprising or rebellion to
secure, as the Huks pretend, the liberation of the peasants and laboring class from thraldom. By membership in the
HMB, one already advocates uprising and the use of force, and by such membership he agrees or conspires that
force be used to secure the ends of the party. Such membership, therefore, even if there is nothing more, renders
the member guilty of conspiracy to commit rebellion punishable by law.
And when a Huk member, not content with his membership, does anything to promote the ends of the rebellion like
soliciting contributions, or acting as courier, he thereby becomes guilty of conspiracy, unless he takes to the field
and joins in the rebellion or uprising, in which latter case he commits rebellion.
In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as the "Katipunan", the
purpose of which was to overthrow the government by force. Each of the defendants on various times solicited
funds from the people of Mexico, Pampanga. The Court held that the defendants were guilty of conspiracy and
proposal to commit rebellion or insurrection and not of rebellion or insurrection itself. Thus, the Court ruled that:
From the evidence adduced in this case we are of the opinion that the said defendants are guilty, not of
inciting, setting or foot, or assisting or engaging in rebellion, but rather of the crime of conspiring to
overthrow, put down, and destroy by force the Government of the United States in the Philippine Islands,
and therefore we find that said defendants, and each of them, did, together with others, in the months of
February and March, 1903, in the Province of Pampanga, Philippine Islands, conspire to overthrow, put
down, and to destroy by force the Government of the United States in the Philippine Islands. (U.S. v.
Vergara, et al., 3 Phil. 432, 434.)
JUAN J. CRUZ
The court found him to be a Communist with various aliases, a member of the Central Committee of the CLO
member of the Central Committee of the CPP and as such committed to the establishment of the dictatorship of the
proletariat To the same effect is the testimony of Guillermo Calayag.
There is no evidence to connect him with the rebellion or to the conspiracy to commit rebellion. He should therefore
be absolved of the charges contained in the information.
AMADO RACANDAY
The trial court found him guilty as a Communist, a Secretary and Executive Committee member of the CLO a
communications center of the Communist Party, having been found in possession of letters from Federico Maclang
to Salome Cruz, and solicitor of contributions for the Huks.
Racanday admits being a member of the Executive Committee of the CLO Editor of the Kidlat of the Government
Workers Union, receiving copies of the Titis. Calayag testified that he was a member of the Central Committee of
the Communist Party entrusted with the duty of receiving directives of the Regional Committee of the Communist
Party.
The letters found in his possession are dated February 14, 1950, before the Communist Party went underground.
We have been unable to find the evidence upon which the court bases its conclusion that he received contributions
for the Huks. With these circumstances in mind, We are not convinced beyond reasonable doubt that as a
Communist he took part in the conspiracy among the officials of the Communist Party to take part and support the
rebellion of the Huks.
We are, therefore, constrained to absolve him of the charges filed against him.
GENARO DE LA CRUZ
The court found him to be a Communist since 1945, an officer of an organized Communist branch in Pasay City, a
member of the Central Committee and Treasurer of the CLO. He admitted his membership and his position as
member of the executive committee and treasurer of the CLO these facts being corroborated by the witness
Guillermo Calayag.
His membership in the Communist Party dates as far back as the year 1945. As a communist, Genaro de la Cruz
received quotas and monetary contributions coming from the areas under his jurisdiction, and one time he made a
receipt from a member from Caloocan at the CLO headquarters at Azcarraga signing the receipt as "Gonzalo" which
is one of his aliases. He also distributed copies of the "Titis" magazine. `
While his membership in the Communist Party plus his having received contributions for the party indicate that he is
an active member, it was not shown that the contributions that he received from Communist Party members were
received around the year 1950 when the Central Committee of the Communist Party had already agreed to conspire
and go underground and support the Huk rebellion. Under these circumstances We cannot find him guilty of
conspiracy to commit rebellion because of the lack of evidence to prove his guilt beyond reasonable doubt.
JULIAN LUMANOG
The court found him to be an organizer of HMB among the mill workers, solicited contributions for the HMB and
Central Committee member of the CLO as per Testimony of Guillermo Calayag.
He admitted that he joined the Communist Party because he was made to believe that the Party is for the welfare of
the laborers. He also admitted being a member of the Central Committee of the CLO Calayag testified that
Lumanog organized the HMB units of the Communist Party in the Lumber Unions and attended a Communist
meeting held by Maclang.
Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by him to one Nicasio
Pamintuan, one of the members of the HMB Special Unit Trigger Squad) in Manila for the use of the said unit.
Considering that the HMB was engaged in a rebellion to overthrow the government, it is evident that by giving his
contributions he actually participated in the conspiracy to overthrow the government and should, therefore, be held
liable for such conspiracy, and should be sentenced accordingly.
FERMIN RODILLAS
The trial court found that Fermin Rodillas was a member of the CPP and the CLO that his activities consisted in
soliciting contributions, in cash and in kind, from city residents for the use of the HMB, turning over said collections
to the Party; that he has given asylum to a wanted Hukbalahap at his house at Juan Luna St., Gagalangin, which
house was used as Military post. The above findings of the court are fully supported by the testimony of Domingo
Clarin.
Considering that while he has not actually taken part in the rebellion, he has shown sympathy with the cause by
soliciting contributions for it and had given shelter to the Huks. We feel that the court was fully justified in finding him
guilty, but We hold that he should be declared liable merely as a co-conspirator in the crime of conspiracy to commit
rebellion, and should be sentenced accordingly.
BAYANI ESPIRITU
This appellant was found by the court to be a Communist, he having admitted membership in the Communist Party
since 1945; that his duties as a Communist was to help in the office of the National Finance Committee, assorting
papers and written documents; that sometimes he accompanied the purchaser of medicines, shoes, papers,
foodstuffs and clothing to be given to the Huks; that he is a member of the Communication Division of the CPP in
Manila, in charge of distribution of letters or communications; that he admits having written to Salome Cruz, courier
of the Communist Party, when he asked for his necessities, such as money and shoes, etc.
The facts found by the court are sufficiently supported by the communications and evidence submitted by the
prosecution. The exhibits show that he was in constant communication with the communists; serving them as
courier. His oath as a member of the Communist Party was submitted in court and in it he admits obedience to all
orders of the Party and to propagate the stability of the PKP.
Considering that the PKP was engaged in an actual uprising against the constituted Government and that Bayani
Espiritu was in constant communication with the Communist Party and served it as courier, We believe that the court
was fully justified in finding him guilty. However, We believe that not having actually taken up arms in the uprising he
may only be declared guilty of conspiracy to commit rebellion.
TEOPISTA VALERIO
The court below found that this appellant joined the Communists in 1938 in San Luis, Pampanga, under Casto
Alejandrino, who later became her common-law husband; that her aliases are "Estrella" and "Star"; that she was
found in possession of various documents written to top Communists like Alejandrino, Lava and Romy, as well as a
letter from Taruc congratulating her for the delivers, of a son.
Jose Taguiang testified that she was a member of the Provincial Committee of the CPP in Nueva Ecija, later
Chairman of the Finance Department, and then promoted to Finance Officer of the Central Luzon Committee. Alicia
Vergara, a Huk courier, testified that she delivered letter from the mountains to Teopista Valerie, who was in turn
also a courier.
Without considering the close relationship that she had with top Communist Casto Alejandrino, We are satisfied that
she herself was, aside from being a Huk courier, also a Huk, a member of the HMB from 1942 to 1951. As she was
a Communist and at the same time a member of the HMB, and considering that the HMB was engaged in an
uprising to uproot the legitimate government, there cannot be any question that she was in conspiracy with the other
members of her Party against the constituted government. We hold, therefore, that the evidence proves beyond
reasonable doubt that she is guilty of conspiracy to commit rebellion.
DEFENDANTS NOT INCLUDED IN DECISION
In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia, Mariano P. Balgos, Alfredo B.
Saulo and Jacobo Espino was dismissed because they have not been apprehended at the time of the trial.
PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND
REPUBLIC ACT NO. 1700, DISTINGUISHED
In the case at bar the prosecution is for actual rebellion which consists in rising publicly and taking aims against the
Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the
Philippines, or any part thereof, etc., a crime defined in Article 134 of the Revised Penal Code; whereas Evangelista
was charged and convicted for inciting to rebellion under Art. 138, Revised Penal Code (formerly Sec. 2, Act No.
292). As the specific charge against appellants is that of rising up in arms in actual rebellion against the
Government, they cannot be held guilty of inciting the people to arms under Article 138, which is a different offense.
On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes membership in any
organization or association committed to subvert the Government, cannot be applied to the appellants because said
Act was approved on June 20, 1957 and was not in force at the time of the commission of the acts charged against
appellants (committed 1945-1950) ; the Anti-Subversion Act punishes participation or membership in an
organization committed to overthrow the duly constituted Government, a crime district from that of actual rebellion
with which appellants are charged.
CONCLUSION
WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants Amado V. Hernandez, Juan J.
Cruz, Amado Racanday and Genaro de la Cruz are absolved from the charges contained in the information, with
their proportionate share of the costs de oficio. The defendants-appellants Julian Lumanog and Fermin Rodillas in
Criminal Case No. 15841 (G.R. No. L-6025) and the defendants-appellants Bayani Espiritu and Teopista Valerio in
Criminal Case No. 15479 (G.R. No. L-6026) are hereby found guilty of the crime of conspiracy to commit rebellion,
as defined and punished in Article 136 of the Revised Penal Code, and each and everyone of them is hereby
sentenced to suffer imprisonment for five years, four months and twenty-one days of prision correccional, and to pay
a fine of P5,000.00, with subsidiary imprisonment in case of insolvency and to pay their proportional share of the
costs. So ordered.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Dizon and Makalintal, JJ., concur.
Padilla, Barrera and Regala, JJ., took no part.
G.R. No. L-31839 June 30, 1980
EDMUNDO S. ALBERTO, Provincial Fiscal and BONIFACIO C. INTIA 1st Asst. Provincial Fiscal, both of
Camarines Sur, petitioners,
vs.
HON. RAFAEL DE LA CRUZ, in his capacity as Judge of the CFI of Camarines Sur and ELIGIO
ORBITA, respondents.
CONCEPCION, J.:
Petition for certiorari, with a prayer for the issuance of a writ of preliminay injunction, to annul and set aside the order
of the respondent Judge, dated January 26, 1970, directing the petitioners, Provincial Fiscal and Assitant Provincial
Fiscal of Camarines Sur, to amend the information filed in Criminal Case No. 9414 of the Court of First Instance of
CamarinesSur, entitled: "The People of the Philippines, plaintiff, versus Eligio Orbita, accused," so as to include, as
defendants, Governor Armando Cledera and Jose Esmeralda, assistant provincial warden of Camarines Sur; as well
as the order dated February 18, 1970, denying the motion for the reconsideration of the said order.
In Criminal Case No. 9414 of the Court of First Instance of Camarines Sur, Eligio Orbita, a Provincial guard, is
prosecuted for the crime of Infedelity in the Custody of Prisoner, defined and punished under Article 224 of the
Revised Penal Code, committed, as follows:
That on or about the 12th day of September. 1968, in the barrio of Taculod, municipality of Canaman, province of
Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a
member of the Provincial Guard of Camarines Sur and specially charged with the duty of keeping under custody
and vigilance detention prisoner Pablo Denaque, did then and there with great carelessness and unjustifiable
negligence leave the latter unguarded while in said barrio, thereby giving him the opportunity to run away and
escape, as in fact said detention prisoner Pablo Denaque did run away and escape from the custody of the said
accused. 1
In the course of the trial thereof, or more particularly during the cross-examination of prosecution witness Jose
Esmeralda, assistant provincial warden of Camarines Sur, the defense brought forht and confronted the witness with
a note, marked as exhibit, purportedly written by Gov. Armando Cledera, asking Jose Esmeralda to send five men to
work in the construction of a fence at his house at Taculod, Canaman, Camarines Sur, then leased by the province
and used as an official guest house. Jose Esmeralda, declared, however, that he could not remember who ahnded
the note for him; that he was not sure as to genuineness of the signature appearing therein and that he was not
preszent when the note was made and signed by Gov. Cledera. 2 Beleiving that the escape of Pablo Denaque was
made possible by the note of Gov. Cledera to Jose Esmeralda and that Cledera and Esmeralda are equally guilty of the
offense for which tha accused Eligio Orbita had been charged, the defense cousel filed a motion in court seeking the
amendment of the information so as to include Gov. cledera and Jose Esmeralda as defendants therein. 3
Acting upon said motion, as well as the opposition of the prosecution officers 4 and finding that "the court cannot grant
the motion or order the inclusion of Gov. Cledera and Lt. Esmeralda at this stage unless an investigation is made," the
respondent Judge directed the Fiscals office, within 15 days from date, to cause the further investigation of the case,
taking into consideration the provisions of Article 156 in relation to Articles 223 and 224 of the Revised Penal Code in
order to determine once and for all whether the Governor as jailer of the Province and his assistant have any criminatory
participation in the circumstances of Pablo Denaque's escape from judicial custody. 5
In compliance with said order, the Fiscal set the reinvestigation of the case for December 19, 1969. Summonses
were issued to Gov. Cledera Jose Esmeralda, Lorenzo Padua, the provincial warden, and the accused Eligio Orbita
to be present thereat. 6 Dr. went thereat But, on the date set for the reinvestigation of the case, only Gov. Cledera Jose
Esmeralda and Lorenzo Padua appeared. The accused Eligio Orbita did not appear. Neither was the note (Exhibit 2)
produced. Since no additional evidence was presented, the Fiscal manifested in Court on January 2, 1970 that "after
conducting a reinvestigation of the case and after a thorough and intelligent analysis of the facts and law involved, no
prima facie case against Governor Cledera and Jose Esmeralda exist, hence, they cannot be charged. 7
On January 19, 1970, the accused Eligio Orbita filed a "Motion for Reconsideration" praying "that the Order of this
Honorable Court dated December 11, 1969 be, in that instead of ordering the Fiscal to reinvestigate this case, on
the basis of the evidence already adduce during the trial of this case, he be ordered to amend the information on to
include Cledera and Esmeralda it appearing the on record that their inclusion is warranted. 8
On January 26, 1970, the respondent Court issued the order complained of, the dispositive portion of which reads,
as follows:
WHEREFORE, premises considered, in the light of the facts brought about by the prosecuting fiscal let the charges
be so amended by including in the information the author or writer of Exhibit 2 and the person or persons who
carried out the said orders considering the provisions of Article 156 in relation to Articles 223 and 224 of the Penal
Code. 9
The Fiscal filed a motion for the reconsideration of said order, 10 but the motion was denied on February 18,
1970. 11Hence, the instant recourse.
From the facts of the case, We are convinced that the respondent Judge committed an error in ordering the fiscal to
amend the information so as to include Armando Cledera and Jose Esmeralda as defendants in Criminal Case No.
9414 of the Court of First Instance of Camarines Sur. It is the rule that a fiscal by the nature of his office, is under no
compulsion to file a particular criminal information where he is not convinced that he has evidence to support the
allegations thereof. 12 Although this power and prerogative of the Fiscal, to determine whether or not the evidence at
hand is sufficient to form a reasonable belief that a person committed an offense, is not absolute and subject to judicial
review, 13 it would be embarrassing for the prosecuting attorney to be compelled to prosecute a case when he is in no
position to do so because in his opinion, he does not have the necessary evidence to secure a conviction, or he is not
convinced of the merits of the case. The better procedure would be to appeal the Fiscal's decision to the Ministry of
Justice and/or ask for a special prosecutor.
Besides, it cannot be said that the Fiscal had capriciously and whimsically refused to prosecute Cledera and
Esmeralda.
In his order directing the Fiscal's office to conduct a further reinvestigation of the case, the respondent Judge
candidly ad. muted that without a reinvestigation of the case, he cannot determine once and for all whether or not to
include Gov. Cledera and Jose Esmeralda in the information. Pursuant thereto, a reinvestigation was conducted by
the fiscals office. Summonses were issued. But, no additional fact was elicited since Eligio Orbita did not appear
thereat. Neither was the note (Exh. 2) presented and produced. Gov. Cledera could not admit nor deny the
genuineness of the signature appearing in the note since it was not on hand. Such being the case, the prosecuting
officers had reason to refuse to amend the information filed by them after a previous pre examination and
investigation.
Moreover, there is no sufficient evidence in the record to show a prima facie case against Gov. Cledera and Jose
Esmeralda. The order to amend the information is based upon the following facts:
1. Pablo Denaque, a detention prisoner for homicide, while working at the Guest House of Governor
Cledera on September 12, 1968;
2. The Governor's evidence at that time is being rented by the province and its maintenance and
upkeep is shouldered by the province of Camarines Sur,
3. That neither Governor Cledera nor Lt. Jose Esmeralda was charged or entrusted with the duty of
conveying and the detainee from the jail to the residence of the governor.
4. That the de worked at the Governor Is by virtue of an order of the Governor (Exhibit 2) which was
tsn by Lt. Esmeralda; and
5. That it was the accused Orbita who himself who handpicked the group of Prisoners to work at the
Governor's on 12, 1968. 14
Article 156 of the Revised Penal Code provides:
Art. 156. Delivering prisoners from jails. The city Of arrests mayor in its maximum period to prison
correccional in its minimum Period shall be imposed upon any person who shall remove from any jail
or penal establishment t any person confined therein or shall help the escape of such person, by
means of violence, intimidation, or bribery.
If other means are used the penalty of arresto mayor shall be imposed. If the escape of the prisoner
shall take place outside of said establishments by taking the guards by surprise, the same penalties
shall be imposed in their minimum period.
The offenders may be committed in two ways: (1) by removing a person confined in any jail or penal establishment;
and (2) by helping such a person to escape. To remove means to take away a person from the place of his
confinement, with or without the active compensation of the person released To help in the escape of a Person
confined in any jail or penal institution means to furnished that person with the material means such as a file, ladder,
rope, etc. which greatly facilitate his escape. 15 The offenders under this article is usually committed by an outsider who
removes from jail any person therein confined or helps him escape. If the offender is a public officer who has custody or
charge of the prisoner, he is liable for infidelity in the custody of prisoner defined and penalty under Article 223 of the
Revised Penal Code. Since Gov. Cledera as governor, is the jailer of the province, 16 and Jose Esmeralda is the assistant
provincial warden, they cannot be prosecuted for the escape Of Pablo Denaque under Article 156 of the Revised Penal
Code. There is likewise no sufficient evidence to warrant their prosecution under Article 223 of the Revised Penal Code,
which reads, as follows:
ART. 223. Conniving with or consenting to evasion. Any Public officer who shall consent to the
escape of a prisoner in his custody or charge, shall be punished
1. By prision correccional in its medium and maximum periods and temporary disqualification in its
minimum period to perpetual special disqualification, if the fugitive shall have been sentenced by
final judgment to any penalty.
2. By prision correccional in its minimum period and temporary special disqualification, in case the
fugitive shall not have been finally convicted but only held as a detention prisoner for any crime or
violation of law or municipal ordinance.
In order to be guilty under the aforequoted provisions of the Penal Code, it is necessary that the public officer had
consented to, or connived in, the escape of the prisoner under his custody or charge. Connivance in the escape of a
prisoner on the part of the person in charge is an essential condition in the commission of the crime of faithlessness
in the custody of the prisoner. If the public officer charged with the duty of guarding him does not connive with the
fugitive, then he has not violated the law and is not guilty of the crime. 17 For sure no connivance in the escape of
Pablo Denaque from the custody of the accused Eligio Orbita can be deduced from the note of Gov. Cledera to Jose
Esmeralda asking for five men to work in the guest house, it appearing that the notes does not mention the names of the
prisoners to be brought to the guest house; and that it was the accused Eligio Orbita who picked the men to compose the
work party.
Neither is there evidence to warrant the prosecution of Cledera and Esmeralda under Article 224 of the Revised
Penal Code. This article punishes the public officer in whose custody or charge a prisoner has escaped by reason of
his negligence resulting in evasion is definite amounting to deliberate non- performance of duty. 18 In the constant
case, the respondent Judge said:
We cannot, for the present be reconciled with the Idea that the escape. of Denaque was facilitated
by the Governor's or . his assistants negligence. According to law, if there is any negligence
committed it must be the officer who is charged with the custody and guarding of the ... 19
We find no reason to set aside such findings.
WHEREFORE, the orders issued on January 26, and February 18, 1970 in Criminal Case No. 9414 of the Court of
First Instance of Camarines Sur, entitled: "The People of the Philippines, plaintiff, versus Eligio Orbita, accused are
hereby annulled and set aside. The respondent Judge or any other judge acting in his stead is directed to proceed
with the trial of the case. Without costs.
SO ORDERED.
BENJAMIN PANGAN y RIVERA, petitioner, vs. HON. LOURDES F. GATBALITE, as

the Presiding Judge, Regional Trial Court of Angeles City, Branch 56, and
COL. JAMES D. LABORDO, as the City Jail Warden of Angeles
City, respondents.
DECISION
AZCUNA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the 1997 Rules
of Civil Procedure, assailing the decision of the Regional Trial Court of Angeles City,
Branch 56, rendered on January 31, 2000. [1]
The facts of this case are undisputed. The petitioner was indicted for simple seduction
in Criminal Case No. 85-816, at the Municipal Trial Court of Angeles City, Branch 3.
During the trial of the case, Atty. Eduardo Pineda, counsel for petitioner, submitted the
case for decision without offering any evidence, due to the petitioners constant absence at
hearings.
On September 16, 1987, the petitioner was convicted of the offense charged and was
sentenced to serve a penalty of two months and one day of arresto mayor.
On appeal, the Regional Trial Court, on October 24, 1988, affirmed in toto the decision
of the Municipal Trial Court.
On August 9, 1991, the case was called for promulgation of the decision in the court of
origin. Despite due notice, counsel for the petitioner did not appear. Notice to petitioner
was returned unserved with the notation that he no longer resided at the given address.
As a consequence, he also failed to appear at the scheduled promulgation. The court of
origin issued an order directing the recording of the decision in the criminal docket of the
court and an order of arrest against the petitioner. [2]
Pursuant to the order of arrest, on January 20, 2000, the petitioner was apprehended
and detained at the Mabalacat Detention Cell. On January 24, 2000, petitioner filed a
Petition for a Writ of Habeas Corpus at the Regional Trial Court of Angeles City. He
impleaded as respondent the Acting Chief of Police of Mabalacat, Pampanga. Petitioner [3]
contended that his arrest was illegal and unjustified on the grounds that:
(a) the straight penalty of two months and one day of arresto mayor prescribes in five years
under No. 3, Article 93 [of the] Revised Penal Code, and
(b) having been able to continuously evade service of sentence for almost nine years, his
criminal liability has long been totally extinguished under No. 6, Article 89 [of the] Revised
Penal Code. [4]
After his transfer to the City Jail of Angeles City on January 25, 2000, petitioner filed
an Amended Petition with the Regional Trial Court, impleading herein respondent Col.
James D. Labordo, the Jail Warden of Angeles City, as respondent. [5]
In response, the Jail Warden alleged that petitioners detention was pursuant to the
order of commitment (mittimus), issued by Marlon P. Roque, Clerk of Court III of the
Municipal Trial Court of Angeles City, Branch 3, dated January 25, 2000. [6]
On January 31, 2000, respondent Judge rendered the decision, which is the subject of
this present appeal, which pronounced:
The Court cannot subscribe to the contention of the petitioner that the penalty imposed on him in
the decision adverted to above had already prescribed, hence, his detention is illegal for under
Article 93 of the Revised Penal Code:
The period of prescription of penalties shall commence to run from the date when the culprit should
evade the service of sentence, and it shall be interrupted if the defendant should give himself up, be
captured, should go to some foreign country with which this Government has no extradition treaty,
or should commit another crime before the expiration of the period of prescription.
The elements of prescription are:
1. That the penalty is imposed by final judgment;
2. That convict evaded the service of the sentence by escaping during the term of his
sentence;
3. That the convict who had escaped from prison has not given himself up, or been
captured, or gone to a foreign country with which we have no extradition treaty, or
committed another crime;
4. The penalty has prescribed, because of the lapse of time from the date of the evasion
of the service of the sentence by the convict.
In this case, the essential element of prescription which is the evasion of the service of sentence is
absent. Admittedly, the petitioner herein has not served the penalty imposed on him in prison and
that during the service of the sentence, he escaped therefrom. Notably, at the trial of Crim. Case No.
85-816 in the Municipal Trial Court, Branch III, Angeles City and on the date set for the
promulgation of the affirmed decision, the petitioner failed to appear and remained at large.
There was no evasion of the service of the sentence in this case, because such evasion presupposes
escaping during the service of the sentence consisting in deprivation of liberty. (Infante vs. Warden,
48 O.G. No. 122) (92 Phil. 310).
Corollarily, the detention of the petitioner in Angeles City Jail in compliance with the Order of
Commitment (Exhibit E) is not illegal for
A commitment in due form, based on a final judgment, convicting and sentencing the defendant in
a criminal case, is conclusive evidence of the legality of his detention, unless it appears that the
court which pronounced the judgment was without jurisdiction or exceeded it. (U.S. vs. Jayne, 24
Phil 90, 24 J.F. 94, Phil. Digest, Vol. 2, 1398).
WHEREFORE, for not being meritorious and well-founded, the petition for a writ of habeas corpus
is hereby denied.
SO ORDERED.
Angeles City, January 31, 2000. [7]
From the above quoted decision, petitioner filed the instant petition for review on a
question purely of law and raised the following issue:
HOW SHOULD THE PHRASE SHALL COMMENCE TO RUN FROM THE DATE WHEN THE
CULPRIT SHOULD EVADE THE SERVICE OF SENTENCE IN ARTICLE 93 OF THE
REVISED PENAL CODE ON THE COMPUTATION OF THE PRESCRIPTION OF PENALTIES
BE CONSTRUED? PUT A LITTLE DIFFERENTLY, WHEN DOES THE PRESCRIPTIVE
PERIOD OF PENALTIES BEGIN TO RUN? [8]
Petitioner claims that:
xxx the period for the computation of penalties under Article 93 of the Revised Penal Code begins
to run from the moment the judgment of conviction becomes final and the convict successfully
evades, eludes, and dodges arrest for him to serve sentence. [9]
Petitioner supports his claim in the following manner:
The Decision subject of this appeal, which was based on the 1952 ruling rendered in Infante vs.
Warden, 48 O.G. No. 122, 92 Phil. 310, is, petitioner most respectfully submits, not good case law.
It imposes upon the convict a condition not stated in the law. It is contrary to the spirit, nature or
essence of prescription of penalties, creates an ambiguity in the law and opens the law to abuse by
government.
THE INFANTE RULING IMPOSES A
CONDITION NOT STATED IN THE LAW.
It appears that the Infante ruling imposes that, as an essential element, the convict must serve at
least a few seconds, minutes, days, weeks or years of his jail sentence and then escapes before the
computation of prescription of penalties begins to run. This, petitioner respectfully submits is not a
condition stated in Article 93, which states that, the prescription of penalties shall commence to run
from the date when the culprit should evade the service of sentence.
There is no dispute that the duty of government to compel the service of sentence sets in when the
judgment of conviction becomes final.
The dispute, however, is in the construction of the phrase should evade the service of
sentence. When does the period of prescription of penalties begin to run? The Infante ruling
construes this to mean that the convict must escape from jail because such evasion presupposes
escaping during the service of the sentence consisting in deprivation of liberty.
Petitioner, with due respect, disagrees because if that were the intention of the law, then the phrase
should evade the service of sentence in Article 93 would have read: should escape during the
service of the sentence consisting in deprivation of liberty. The legislature could have very easily
written Article 93 to read this way
The period of prescription of penalties shall commence to run from the date when the
culprit should escape during the service of the sentence consisting in deprivation of liberty, and
it shall be interrupted if the defendant should give himself up, be captured, should go to some
foreign country with which this Government has no extradition treaty, or should commit another
crime before the expiration of the period of prescription.
But they did not.
The legislature wrote should evade the service of sentence to cover or include convicts like him
who, although convicted by final judgment, were never arrested or apprehended by government for
the service of their sentence. With all the powers of government at its disposal, petitioner was able
to successfully evade service of his 2 months and 1 day jail sentence for at least nine (9) years,
from August 9, 1991 to January 20, 2000. This is approximately 3 years and 5 months longer than
the 5-year prescriptive period of the penalty imposed on him.
That, as the respondent RTC Judge noted, petitioner did not attend the trial at the Municipal Trial
Court and the promulgation of his judgment of conviction in August 9, 1991 is of no moment. His
bond for provisional release was surely cancelled and an order of arrest was surely issued against
petitioner. The undisputed fact is that on August 9, 1991 the judgment of conviction was
promulgated in absentia and an order for petitioners arrest was issued by the Municipal Trial Court
of Angeles City, Branch III.
The duty of government, therefore, to arrest petitioner and compel him to serve his sentence began
on August 9, 1991. The 5-year prescriptive period of his arresto mayor penalty also began to run on
that day considering that no relief was taken therefrom. Since petitioner never gave himself up
[n]or was [he], until January 20, 2000, ever captured, for the service of his sentence nor did he flee
to some foreign country with which [our] government has no extradition treaty, that 5-year
prescriptive period of his penalty ran continuously from August 9, 1991 when his judgment of
conviction was promulgated in absentia and was never interrupted.
For reasons known only to it, however, government failed or neglected, for almost nine (9) years, to
arrest petitioner for the service of his arresto mayor sentence [which] should not be taken against
petitioner. He was able to successfully evade service of his sentence for a period longer than the 5-
year prescriptive period of his penalty and, as such, is entitled to total extinction of his criminal
liability.
To say, as was said in Infante, that the prescriptive period of the penalty never began to run in favor
of petitioner because he never escaped from jail during the service of his sentence imposes a
condition not written in the law. It also violates the basic principle that the criminal statutes are
construed liberally in favor of the accused and/or convict and is contrary to the spirit behind or
essence of statutes of limitations [and] prescription, in criminal cases.
[10]
The Regional Trial Court based its decision on the case of Infante v. Warden . In said [11]
case, Infante, the petitioner, was convicted of murder and was sentenced to seventeen
years, four months and one day of reclusion temporal. After serving fifteen years, seven
months and eleven days, he was granted a conditional pardon. The condition was that he
shall not again violate any of the penal laws of the Philippines. Ten years after his release
on conditional pardon, Infante was found guilty by a Municipal Court for driving without a
license. Infante was immediately ordered rearrested for breach of the condition of his
pardon. One of the issues raised by Infante in his petition,
xxx was that the remitted penalty for which the petitioner had been recommitted to jail one year
and 11 days had prescribed. xxx [12]
The Court disagreed and reasoned out thus:
The contention is not well taken. According to article 93 of the Revised Penal Code the period of
prescription of penalties commences to run from the date when the culprit should evade the service
of his sentence. It is evident from this provision that evasion of the sentence is an essential element
of prescription. There has been no such evasion in this case. Even if there had been one and
prescription were to be applied, its basis would have to be the evasion of the unserved sentence,
and computation could not have started earlier than the date of the order for the prisoner's rearrest.[13]
A perusal of the facts in Infante v. Warden reveals that it is not on all fours with the
present case. In Infante, the convict was on conditional pardon when he was re-arrested.
Hence, he had started serving sentence but the State released him. In the present case,
the convict evaded service of sentence from the start, and was arrested eight years later.
The RTC decision, however, must stand, since it is in accord with applicable decisions
of this Court. The issue raised by petitioner is not novel. Article 93 of the Revised Penal
Code has been interpreted several times by the Court.
[14]
The case of Tanega v. Masakayan falls squarely within the issues of the present
[15]
case. In that case, petitioner Adelaida Tanega failed to appear on the day of the execution
of her sentence. On the same day, respondent judge issued a warrant for her arrest. She
was never arrested. More than a year later, petitioner through counsel moved to quash the
warrant of arrest, on the ground that the penalty had prescribed. Petitioner claimed that
she was convicted for a light offense and since light offenses prescribe in one year, her
penalty had already prescribed. The Court disagreed, thus:
xxx The period of prescription of penalties the succeeding Article 93 provides "shall commence to
run from the date when the culprit should evade the service of his sentence". What then is the
concept of evasion of service of sentence? Article 157 of the Revised Penal Code furnishes the
ready answer. Says Article 157:
"ART. 157. Evasion of service of sentence. The penalty of prision correccional in its medium and
maximum periods shall be imposed upon any convict who shall evade service of his sentence by
escaping during the term of his imprisonment by reason of final judgment. xxx"
Elements of evasion of service of sentence are: (1) the offender is a convict by final judgment; (2)
he "is serving his sentence which consists in deprivation of liberty"; and (3) he evades service of
sentence by escaping during the term of his sentence. This must be so. For, by the express terms of
the statute, a convict evades "service of his sentence" by "escaping during the term of his
imprisonment by reason of final judgment." That escape should take place while serving sentence,
is emphasized by the provisions of the second sentence of Article 157 which provides for a higher
penalty if such "evasion or escape shall have taken place by means of unlawful entry, by breaking
doors, windows, gates, walls, roofs, or floors, or by using picklocks, false keys, disguise, deceit,
violence or intimidation, or through connivance with other convicts or employees of the penal
institution, . . ." Indeed, evasion of sentence is but another expression of the term "jail breaking."
xxx
We, therefore, rule that for prescription of penalty of imprisonment imposed by final sentence to
commence to run, the culprit should escape during the term of such imprisonment.
Adverting to the facts, we have here the case of a convict who sentenced to imprisonment by final
judgment was thereafter never placed in confinement. Prescription of penalty, then, does not run in
her favor.
[16]
In Del Castillo v. Torrecampo , the Court cited and reiterated Tanega. Petitioner, Del
[17]
Castillo, was charged for violation of Section 178 (nn) of the 1978 Election Code. The trial
court found Del Castillo guilty beyond reasonable doubt and sentenced him to suffer an
indeterminate sentence of imprisonment of 1 year as minimum to 3 years as maximum.
On appeal the Court of Appeals affirmed the decision of the trial court in toto. During the
execution of judgment on October 14, 1987, petitioner was not present. The presiding
Judge issued an order of arrest and the confiscation of his bond. Petitioner was never
apprehended. Ten years later, petitioner filed a motion to quash the warrant of arrest on
the ground that the penalty imposed upon him had already prescribed. The motion was
denied by the trial court. Del Castillo, on a petition for certiorari to the Court of Appeals,
questioned the denial by the trial court. The Court of Appeals dismissed the petition for
lack of merit. Upon denial of his Motion for Reconsideration, Del Castillo raised the matter
to this Court. The Court decided against Del Castillo and after quoting the ratio
decidendi of the Court of Appeals in full, it ratiocinated, thus:
The foregoing conclusion of the Court of Appeals is consistent with the ruling of this Court
in Tanega vs. Masakayan, et al., where we declared that, for prescription of penalty imposed by
final sentence to commence to run, the culprit should escape during the term of such imprisonment.
The Court is unable to find and, in fact, does not perceive any compelling reason to deviate from
our earlier pronouncement clearly exemplified in the Tanega case.
Article 93 of the Revised Penal Code provides when the prescription of penalties shall commence
to run. Under said provision, it shall commence to run from the date the felon evades the service of
his sentence. Pursuant to Article 157 of the same Code, evasion of service of sentence can be
committed only by those who have been convicted by final judgment by escaping during the term
of his sentence.
As correctly pointed out by the Solicitor General, "escape" in legal parlance and for purposes of
Articles 93 and 157 of the RPC means unlawful departure of prisoner from the limits of his
custody. Clearly, one who has not been committed to prison cannot be said to have escaped
therefrom.
In the instant case, petitioner was never brought to prison. In fact, even before the execution of the
judgment for his conviction, he was already in hiding. Now petitioner begs for the compassion of
the Court because he has ceased to live a life of peace and tranquility after he failed to appear in
court for the execution of his sentence. But it was petitioner who chose to become a fugitive. The
Court accords compassion only to those who are deserving. Petitioner's guilt was proven beyond
reasonable doubt but he refused to answer for the wrong he committed. He is therefore not to be
rewarded therefor.
The assailed decision of the Court of Appeals is based on settled jurisprudence and applicable laws.
It did not engage in judicial legislation but correctly interpreted the pertinent laws. Because
petitioner was never placed in confinement, prescription never started to run in his favor. [18]
Consistent with the two cases cited above, this Court pronounces that the prescription
of penalties found in Article 93 of the Revised Penal Code, applies only to those who are
convicted by final judgment and are serving sentence which consists in deprivation of
liberty. The period for prescription of penalties begins only when the convict evades
service of sentence by escaping during the term of his sentence. Since petitioner never
suffered deprivation of liberty before his arrest on January 20, 2000 and as a
consequence never evaded sentence by escaping during the term of his service, the
period for prescription never began.
Petitioner, however, has by this time fully served his sentence of two months and one
day of arresto mayor and should forthwith be released unless he is being detained for
another offense or charge.
WHEREFORE, the decision of the Regional Trial Court of Angeles City, Branch 56 is
AFFIRMED, but petitioner is ordered released effective immediately for having fully served
his sentence unless he is detained for another offense or charge.
No costs.
SO ORDERED.

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MADELEINE MENDOZA-ONG, petitioner, vs. HON.

Sometime in February 1993, the Sangguniang Bayan of Laoang, Northern Samar,

in Rawis, Laoang, Northern Samar. A concerned citizen and ex-member of

Visayas, for violation of the Anti-Graft and Corrupt Practices Act.

(1) Criminal Case No. 23847

That on or about 15 February 1993, or sometime thereafter, in the Municipality of Laoang,

CONTRARY TO LAW. [10]

That on or about 15 February 1993, or sometime thereafter, in the Municipality of Laoang,

CONTRARY TO LAW. [11]

(2) Criminal Case No. 23848

That on or about 15 February 1993, or sometime thereafter, in the Municipality of Laoang,

CONTRARY TO LAW. [12]

On September 15, 1999, petitioner filed a Motion to Quash with

On May 8, 2000, the Sandiganbayan denied petitioners Motion to Quash. Petitioner

I. RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO

II. RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT

III. RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT

SEC. 2. Definition of terms.- As used in this Act, the term

WHEREFORE, the petition is hereby DISMISSED. The assailed resolutions of

Bellosillo, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

LINDA CADIAO-PALACIOS, G.R. No. 168544

March 31, 2009

a) Rehabilitation of Tumao-San Juan Road;

which projects amounted to TWO MILLION PESOS (P2,000,000.00), Philippine

Emmanuel Palacios likewise denied having received P15,000.00 from Superficial. He

WHEREFORE, judgment is hereby rendered finding accused LINDA

The petition lacks merit.

Section 3 (b) of the Anti-Graft and Corrupt Practices Act provides:

SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public

Petitioners refutation of her conviction focuses on the evidence appreciated by the

Section 3(b) penalizes three distinct acts 1) demanding or requesting; 2) receiving; or 3)

We find no cogent reason to disturb the aforesaid conclusions.

This contention does not persuade. As held in Preclaro v. Sandiganbayan,[38] it is

PEOPLE OF THE PHILIPPINES, G.R. No. 177752

PUNO, C.J., Chairperson,

ROBERTO ABAY y TRINIDAD,

Appellant pleaded not guilty during arraignment.

We affirm the decision of the CA with modifications.

Costs against appellant.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

The Office of the Solicitor General for plaintiff-appellee.

PE Findings Pertinent Findings only.

Back Multiple pinpoint marks.

Extremities Abrasions at (R) and (L) knees.

Vulva No visible abrasions or marks at the perineal area or over the

As aforementioned, the trial court convicted the accused of frustrated rape.

In this appeal, the accused assigns the following errors:

1. By using force or intimidation;

xxx xxx xxx

On the other hand, Article 6 of the same Code provides:

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

xxx xxx xxx

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

G.R. No. 211002 January 21, 2015

RICHARD RICALDE, Petitioner,

Even men can become victims of rape.

XXX slept on the living room floor. 13

through sexual assault:

the amounts of damages awarded:

Ricalde filed this Petition praying for his acquittal. 36