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Crim Law Rev Midterm (INCOMPLETE)

PEOPLE OF THE PHILIPPINES, appellee, vs. JOSE OBESO, appellant.2003 Oct


243rd DivisionG.R. No. 152285D E C I S I O N

PANGANIBAN, J.:

The prosecution bears the burden of proving beyond reasonable doubt the guilt of the
accused. Every conviction must rest on the strength of the people’s evidence, never
on the weakness of that for the defense.

The Case

Before us is an appeal from the June 19, 2001 Decision[1] of the Regional Trial Court
(RTC) of Cebu City (Branch 18) in Criminal Case No. CBU-49812, convicting Jose
Obeso of kidnapping and serious illegal detention. The decretal portion of the
Decision reads as follows:

“WHEREFORE, in view of the foregoing facts and circumstances, accused Jose Obeso
is found guilty beyond reasonable doubt of the crime of kidnapping and serious illegal
detention under Article 267 of the Revised Penal Code and he is hereby imposed the
penalty of RECLUSION PERPETUA, with the accessory penalties of the law; to
indemnify the victim with damages in the sum of P50,000.00 and to pay the
costs.”[2]

In an Information[3] dated February 23, 1999, appellant was charged as follows:

“That on or about the 9th day of December 1998 at around 3:00 o’clock in the
afternoon, more or less, at Sitio Ilang-Ilang, Barangay Lagtang, Municipality of Talisay,
Province of Cebu, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, a private individual, without lawful authority and for the
purpose of detaining the victim, or depriving her liberty, a minor, three (3) years old
at the time of the commission of the offense and female, without the consent of the
victim or her parent or guardian did then and there willfully, unlawfully and
feloniously kidnap, detain, or deprive the liberty of one Lilibeth Cabriana, the victim,
to the damage and prejudice of the latter.”[4]

During his arraignment on April 12, 1999, appellant, assisted by his counsel,[5]
pleaded not guilty after the Information had been read and translated to him in a
language that he fully understood.[6] After pretrial and trial, the lower court
promulgated its assailed Decision. The Public Attorney’s Office then filed a Notice of
Appeal on August 7, 2001.[7]

The Facts

Version of the Prosecution

In its Brief,[8] the Office of the Solicitor General (OSG) narrates the factual
antecedents of the case as follows:

“Around four (4) o’clock in the afternoon of December 9, 1998, Elizabeth Cabriana, an
unwed mother, together with her three (3) year old daughter Lilibeth Cabriana, went
to the Talisay Public Market located at Tabuno[k], Talisay, Cebu, to do some caroling
to augment their day to day expenses. As it would be too burdensome for Elizabeth
to bring Lilibeth along with her, she (Elizabeth) took her child to the store of Lucy
Nacasio. Thereupon, Elizabeth instructed Lucy’s daughter, Wowie, to look after her
child after which, Elizabeth left.

“After finishing her caroling around five (5) o’clock in the afternoon of the same day,
Elizabeth proceeded to Lucy’s place to fetch Lilibeth. To her surprise, Elizabeth was
informed by both Lucy and Wowie that a certain Jose Obeso took her child.

“Frantic, Elizabeth proceeded to the reservoir located at Ilang-Ilang, Lagtang, Talisay,


Cebu, to seek the assistance of Gemelito Abendan, a ‘barangay tanod,’ in retrieving
her child.

“Upon her arrival, Elizabeth requested Gemelito to look for Lilibeth. A short while
thereafter, one of Gemelito’s neighbors informed the latter that accused-appellant
was last seen headed towards the back portion of Gemelito’s house. Acting on the
information, Gemelito followed the route supposedly taken by appellant.

“A few moments thereafter, Gemelito chanced upon the appellant and Lilibeth. Per
Gemelito’s recollection, Lilibeth was [seated] on the lap of the appellant.
Immediately, Gemelito took possession of the child and inquired from the appellant
why the latter brought the child there. In response, appellant answered that Lilibeth
wanted to go ‘up there’ pointing to the hilly portion beyond the road. At this point,
Gemelito noticed that appellant was drunk. Having gained custody of the child,
Gemelito took the lat[t]er to her mother. Thereafter, Gemelito brought the appellant
to the police station at Tabunok, Talisay, Cebu.

“Lilibeth Cabriana, the victim in this case, testified that she knows the appellant as in
fact, she pointed to the appellant when instructed to do so. When asked why she
knew the appellant, Lilibeth pressed her left hand on her private part. Subsequently,
the court asked Lilibeth what had the appellant done to her. Again, in response to the
question propounded by the court, Lilibeth placed her left hand on her front. When
asked by the court what Lilibeth meant by placing her left hand near her private part,
Lilibeth uttered the word ‘Jose.’

“Lilibeth likewise admitted having been carried by the appellant towards the latter’s
house. At this juncture, the court asked Lilibeth what appellant did to her when she
was brought to appellant’s house, to which Lilibeth answered by pressing her hand
against her private part. Lilibeth likewise testified that she was crying when the
appellant brought her to his house.

“When called to the witness stand, appellant presented an entirely different version
of the incident. According to him, on December 9, 1998, he was in the vicinity of the
Tabunok Public Market when he saw the victim, Lilibeth Cabriana. Allegedly, the child
was looking for her mother. Appellant knew Lilibeth because he frequently saw that
latter with Elizabeth in the public market.

“Basically, appellant averred that he merely guided the child towards the side of the
road to avoid being hit by the oncoming vehicles. Not too long thereafter, a barangay
tanod apprehended him. Appellant was informed that Lilibeth’s mother was looking
for her.”[9]

Version of the Defense

On the other hand, appellant relates his version of the facts thus:

“JOSE OBESO averred that on December 9, 1998 at around 4:00 o’clock in the
afternoon, after buying rice and viand, and while he was walking towards his house
passing through the highway, he saw a child at the Tabunok Public Market whom he
knew by the name of Lilibeth Cabriana. He happened to know the child because she
used to go with her mother [to] the public market where her mother sold vegetables.
At the time he saw the child, the latter was crying and was looking for her mother.
Thinking of the safety of the child, he guided her and placed her beside him so that
she would not be hit by the passing vehicles. After guiding and placing her in a safe
place outside the Tabunok Public Market, he was apprehended by a barangay tanod
at around 5:00 o’clock in the afternoon. He was in the company of the child for about
ten (10) minutes. He did not take the child to any other place. He was with the child
as she was crying. He held the child by the hand when he guided her towards the
side of the road because there were many passing vehicles. He had no other purpose
other than that.

“After the barangay tanod apprehended him, he was detained and a complaint for
kidnapping was filed against him. Asked if he knows what is meant by kidnapping, he
replied that he knows that kidnapping is to bring a person somewhere in order to be
paid for her release.

“Upon further examination by the defense counsel, he declared that he accompanied


the child Lilibeth Cabriana [to] Ilang-Ilang, Lagtang, Talisay, while she was waiting for
her mother. It was about five (5) minutes that he was with the child when a barangay
tanod arrived and arrested him. The barangay tanod told him that the mother of the
child was looking for her. He turned over the child to her mother. Prior to his arrest,
he already intended to bring the child to the barangay hall.”[10]

Ruling of the Trial Court

The RTC ruled that the prosecution had established beyond reasonable doubt all the
elements of the crime of kidnapping and serious illegal detention. The lower court
construed deprivation of liberty as actual confinement or restriction of the person of
the offended party. The RTC perfunctorily rejected the defense of denial, holding that
“greater weight must be given to positive testimony than to the denial of the
defendant.”

Hence, this appeal. [11]

The Issues

In his Brief, appellant submits this lone error for our consideration:

“The court a quo gravely erred in finding accused-appellant guilty beyond reasonable
doubt of kidnapping and serious illegal detention.”[12]

The Court’s Ruling

The appeal is meritorious.

Sole Issue:

Guilt Beyond Reasonable Doubt

Appellant anchors his defense on the alleged failure of the prosecution to overcome
his right to be presumed innocent. In particular, he questions the finding of the court
a quo that he “illegally kidnapped, detained or in any manner deprived the alleged
victim of her liberty.”[13]

Kidnapping and serious illegal detention are defined and punished under Article 267
of the Revised Penal Code (RPC), which reads:

“Art. 267. Kidnapping and serious illegal detention. – Any private individual who shall
kidnap or detain another, or in any other manner deprive him of his liberty, shall
suffer the penalty of reclusion perpetua to death;

“1. If the kidnapping or detention shall have lasted more than three days.

“2. If it shall have been committed simulating public authority.

“3. If any serious physical injuries shall have been inflicted upon the person
kidnapped or detained; or if threats to kill him shall have been made.

“4. If the person kidnapped or detained shall be a minor, except when the accused is
any of the parents, female or a public officer.

“The penalty shall be death where the kidnapping or detention was committed for
the purpose of extorting ransom from the victim or any other person, even if none of
the circumstances above mentioned were present in the commission of the offense.

“When the victim is killed or dies as a consequence of the detention or is raped, or is


subjected to torture or dehumanizing acts, the maximum penalty shall be imposed.”

The elements of the crime are as follows:

1. The offender is a private individual.

2. That individual kidnaps or detains another or in any other manner deprives the
latter of liberty.

3. The act of detention or kidnapping is illegal.

4. In the commission of the offense, any of the following circumstances is present:

a. The kidnapping or detention lasts for more than three days.

b. It is committed by one who simulates public authority.

c. Any serious physical injury is inflicted upon the person kidnapped or detained, or
any threat to kill that person is made.

d. The person kidnapped or detained is a minor, a female or a public officer.[14]

The crux of the controversy in this case is the second element relating to detention or
deprivation of liberty. Appellant firmly asserts that nowhere in the testimonies of the
prosecution witnesses was it established that he had illegally deprived the child of
her liberty. In fact, he points to the prosecution’s failure to ask her directly whether
she was forcibly taken against her will.

In turn, appellee argues that the mere fact that the girl was found with appellant in
the mountainous area of Ilang-Ilang, Lagtang, Cebu, undeniably demonstrated his
intention to restrain and deprive her of her liberty. Appellee cites jurisprudence in
support of its position that in the crime of kidnapping and serious illegal detention,
the victim need not be kept within an enclosure to restrict freedom of movement.

We agree with appellant. It is true that for kidnapping to take place, it is not
necessary that the victim be placed in an enclosure;[15] neither is it necessary that
the detention be prolonged.[16] However, the essence of kidnapping is the actual
deprivation of the victim’s liberty coupled with indubitable proof of the intent of the
accused to effect such deprivation.[17]

A review of the narration of events by the prosecution itself shows that it was not
able to establish actual confinement, detention or restraint of the child. The
testimonies of its witnesses did not adequately prove that she had been forcefully
transported, locked up or restrained.

Likewise, the prosecution failed to establish that appellant had intended to deprive
the girl of her liberty. Neither the testimony of her mother nor that of the barangay
tanod showed what his intent was. Even less helpful was the testimony of the child
herself. Certainly, we take note of her tender age, but this consideration cannot be
used to supply her testimony with the details that would make appellant liable for the
serious crime he was charged with. Absent any indubitable proof of his purposeful or
knowing action to restrain her forcibly, there can be no taking coupled with intent to
complete the commission of the offense.[18]

Moreover, if the person detained is a child, there is a further question that needs to
be addressed: did the accused intend to deprive the parents of custody of their child?
[19] We find this matter insufficiently proven.

The girl’s mother testified as to the circumstances of this case in the following
manner:

“ATTY. DEBALUCOS:

Q Did I get you right that while caroling you left your child somewhere in Tabuno[k]?
A Yes, I left the child with Lucy.

Q You just left your child there at Lucy’s Place but you did not leave it to her case, is
it not?
A I just left the child at Lucy’s Place without her knowledge. In fact, she saw Jose
brought the child.

Q You did not bother to tell Lucy that you are leaving the child at her place because
Lucy at that time was very busy is that it?
A Yes, Lucy was busy at that time [but] she noticed that [J]ose bro[ugh]t the child.

[Q] In fact, considering that you did not tell Lucy that you were leaving your child at
that time Lucy does not even know where you were going at that time?

WITNESS:

A Lucy knew that I was going to Tabunoc Market.


ATTY. DEBALUCOS:

Q But you did not tell her that you are going to somewhere at Tabuno[k] Public
Market?
A Lucy told me that the child was brought by Jose.
ATTY. DEBALUCOS:

Q My question Miss Cabriana that you did not bother to tell Lucy that you are going
somewhere else particularly at Tabuno[k] Market?
A I told the daughter of Lucy to watch over my child.

Q How old is that child of Lucy, if you know?


A 13 years old.

Q Now, you left your child there at Lucy’s Place because you consider her as a burden
in conducting caroling at that time?
A Yes.

Q It did not even occur to your mind to bring the child with you considering that [s]he
was only 3 years old at that time?
A I was in the belief that nobody would take my child. I went on caroling in order to
earn something to feed my child.

Q Meaning to say it did not occur to your mind to just bring the child with you while
caroling?
A No, sir because I did not think somebody will get my child.

Q In fact, even if you left the child at Lucy’s Place even you know that nobody was
taking [care] of your child who was just 3 years old at that time you just proceeded in
caroling at Tabuno[k], Public Market?
A Yes, I was compelled to do so because I have no money to buy food [for] my child
and my child even cried.

COURT:

Proceed.

ATTY. DEBALUCOS:

Q About what time did you come back to Lucy’s Place where you [left] your child?
A 5:00 o’clock.

COURT:

Q 5:00 o’clock, morning or afternoon.


A Afternoon.

ATTY. DEBALUCOS:

Q And that daughter of Lucy was not around at that time when you went back?
A Lucy and her daughter [were] around when I [came back. T]hey told me that my
daughter was brought by Jose Obeso.

Q Did you not bother to ask that daughter of tha[t] certain Lucy why did she allow
that certain Jose Obeso to bring this child?
A The daughter of Lucy [already saw] Jose bringing the child to the buzzes [sic]. I
asked the daughter of Lucy why she allowed the child to be brought by Jose but she
said [J]ose insisted in bringing the child with him.
Q Now, considering that you were not around because you said you were caroling
when your child was allegedly taken by Jose Obeso that story of the taking of your
child was only related to you, is that it?
A Yes, it was told.

COURT:

Q And who in particular told you?


A It was Wowie the daughter of Lucy.

Q What is the real name of Wowie?


A They just called her Wowie.

ATTY. DEBALUCOS:

Q In short, Mrs. Cabriana you have no personal knowledge about the taking of your
child by Jose Obeso, is that it?
A I did not see.”[20]

On the other hand, the barangay tanod who was able to retrieve the child testified as
follows:

“FISCAL MANALAC:

Q What did you notice, if any, about the body of the child?
A I don’t know about it.

Q Now, when you took possession of the child from Jose Obeso, as barangay tanod,
did you inquire from him why he was in possession of the child?
A I asked him and he told me that the child wanted to be there up.

COURT:

Witness extending left hand with finger pointing to the upper portion of the
courtroom.

ATTY. DEBALUCOS:

As if, Your Honor, that witness is indicating that the place is uphill.

COURT:

Q What was there that was referred to as ‘up there’?


A It was Jose who said to me.

Q Have you noticed anything there up which was pointed by him?


A To a hilly portion beyond the road.

Q After you recovered the child, did you turn over Jose Obeso to the Police Station in
Talisay?
A Yes.

xxxxxxxxx

Q What was the child doing at the time the child was in the possession of Jose Obeso?
A I don’t know, sir.

xxxxxxxxx

COURT:

Q Was the child harmed as you saw [her]?


A I don’t know, Your Honor, because he was just holding the child.”[21]

xxxxxxxxx

ATTY. DEBALUCOS:
Q Mr. Abendan, you told the Court that while you were in your house on December
10, 1998, your assistance was sought by Elizabeth Gabriana to help her in looking for
her child. Did I get you right?
A Yes, sir.

Q And according to Gabriana, her child was allegedly brought by the accused in this
case?
A Yes.

Q In other words, you were not present during the actual, during the alleged actual
taking of the child by herein accused?
A No, sir. I was in our house.

Q In fact, you were also further told by this Elizabeth Gabriana that she was also not
present. When accused allegedly brought her child with him?
A I don’t know, sir, because she just appeared in our house?

Q And you just brought herein accused to the police station because somebody just
advised you to turn him over to the police?
A Yes.

Q Even if you did not know the circumstances surrounding why he allegedly brought
the child with him?

FISCAL MANALAC:
I object to the question, Your Honor. It is immaterial and misleading and irrelevant,
because it contradicts verified knowledge that the barangay tanod personally
received the report of the commission of crime from the mother. And after such
information, he went to recover the child. That is the doctrine in ....

COURT:
And what is the core of the question?

FISCAL MANALAC:
Objection was it is immaterial and misleading and irrelevant. I invoke the case of
Padilla versus Court of Appeals, which says that police, upon receipt of a report from
eye witess, complainant may subject the report and that is considered verified
knowledge, from which the police can act or conduct the arrest of a person.

COURT (to Atty. Debalucos):

What do you say Panero?


ATTY. DEBALUCOS:
I am not misleading. I’m riding on the testimony of witness.

COURT:
That was touched?

ATTY. DEBALUCOS:
Yes, Your Honor.

COURT:
Ruling--Witness may answer.

WITNESS:
A I have no knowledge, sir.

ATTY. DEBALUCOS:
Q Are you referring to the police station at Tabunok, Talisay, Cebu, where you brought
Jose Obeso?
A Tabunok, Talisay, sir.

Q Isn’t it a fact that at Tabunok, Talisay, you were told by the policeman there that
[the] child who was allegedly brought by the accused in this case, just kept roaming
in Tabunok and was a neglected child?
A Yes, I was told by the police.”[22]

Far from clearly establishing the elements of the crime, these testimonies give rise to
more questions: Why did appellant take the victim? Was she left by her mother? Most
important of all, did he indeed kidnap and restrain her or deprive her of her liberty in
any manner whatsoever?

Appellee argues that the alleged deprivation of liberty consisted of bringing the girl
near the reservoir of Ilang-Ilang. We cannot see how this act alone could establish
either deprivation of liberty or intent to commit that crime. While it does not take
much to scare the wits out of a small child, we cannot say with certainty that, under
the attendant circumstances in the present case, the girl was deprived of her liberty.
Without any further act or evidence reinforcing appellee’s inference, the Court[23] --
while taking cognizance of the child’s minority -- hesitates to find that appellant
indeed kidnapped her.

Time and time again we have said that a conviction must stand on the strength of the
prosecution evidence, not on the weakness of that for the defense.[24] Here, we find
the evidence presented by the prosecution to be too weak and too insufficient to
convict appellant of the serious crime with which he was charged.

It bears stressing that the Court is making its judgment on the basis of the evidence
presented by the prosecution. We are not concluding that the child was not a victim
in this case, or that no wrong was actually committed against her. But given the
insufficiency of evidence, it is clear that the prosecution has failed to overcome the
presumption of appellant’s innocence.

WHEREFORE, the appealed Decision is hereby REVERSED and SET ASIDE. Appellant
Jose Obeso is ACQUITTED on reasonable doubt and is ordered immediately RELEASED
from custody, unless he is being held for some other lawful cause.

The Director of the Bureau of Corrections is ORDERED to implement this Decision


forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the
date appellant was actually released from confinement. Costs de oficio.

SO ORDERED.

JOSE "PEPITO" TIMONER, petitioner, vs. THE PEOPLE OF THE PHILIPPINES


AND THE HONORABLE COURT OF APPEALS, IV DIVISION, respondents.1983
November 252nd DivisionG.R. No. L-62050D E C I S I O N

ESCOLIN, J.:

Petition for review of the affirmance in toto by the Court of Appeals, now the
Intermediate Appellate Court, of the judgment of conviction handed down by the then
Municipal Court of Daet, Camarines Norte, in Criminal Case No. 4281, entitled "People
of the Philippines vs. Jose Timoner," finding petitioner guilty of the crime of grave
coercion, as follows:

"WHEREFORE, this Court finds the accused JOSE 'PEPITO' TIMONER guilty beyond
reasonable doubt of the crime of Grave Coercion as penalized under Art. 286 of the
Revised Penal Code, and hereby sentences the said accused pursuant to the
provision of Rule 64, Par. 3, to suffer SIX MONTHS OF IMPRISONMENT OF ARRESTO
MAYOR IN ITS MAXIMUM PERIOD, to pay a fine of P300.00 and to pay the offended
party in the amount of P5,000.00 as damages, without subsidiary liability in case of
insolvency. The other accused SAMUEL MORENA and ERNESTO QUIBRAL are hereby
ordered ACQUITTED."

The salient facts are not disputed. At about 10:00 in the evening of December 13,
1971, petitioner, then Mayor of Daet, Camarines Norte, accompanied by two
uniformed policemen, Samuel Morena and Ernesto Quibral, and six laborers, arrived
in front of the stalls along Maharlika highway, the main thoroughfare of the same
town. Upon orders of petitioner, these laborers proceeded to nail together rough
lumber slabs to fence off the stalls which protruded into the sidewalk of the Maharlika
highway. Among the structures thus barricaded were the barbershop of Pascual
Dayaon, the complaining witness,. and the store belonging to one Lourdes Pia-
Rebustillos. These establishments had been recommended for closure by the
Municipal Health Officer, Dra. Alegre, for non-compliance with certain health and
sanitation requirements.

Thereafter, petitioner filed a complaint in the, Court of First Instance of Camarines


Norte against Lourdes Pia-Rebustillos and others for judicial abatement of their stalls.
The complaint, docketed as Civil Case No. 2257, alleged that these stalls constituted
public nuisances as well as nuisances per se. Dayaon was never able to reopen his
barbershop business.

Subsequently, petitioner and the two policemen, Morena and Quibral, were charged
with the offense of grave coercion before the Municipal Court of Daet. As already
noted, the said court exonerated the two policemen, but convicted petitioner of the
crime charged as principal by inducement.

On appeal, the Court of Appeals affirmed in full the judgment of the trial court.
Hence, the present recourse.

Petitioner contends that the sealing off of complainant Dayaon's barbershop was
done in abatement of a public nuisance and, therefore, under lawful authority.
We find merit in this contention. Unquestionably, the barbershop in question did
constitute a public nuisance as defined under Article Nos. 694 and 695 of the Civil
Code, to wit:

"ART. 694. A nuisance is any act, omission, establishment, business, condition of


property, or anything else which:

(1) Injures or endangers the health or safety of others; or


(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public highway or street,
or any body of water; or
(5) Hinders or impairs the use of property.

"ART. 695. Nuisance is either public or private. A public nuisance affects a


community or neighborhood or any considerable number of persons, although the
extent of the annoyance, danger or damage upon individuals may be unequal. A
private nuisance is one that is not included in the foregoing definition."

The barbershop occupied a portion of the sidewalk of the poblacion's main


thoroughfare and had been recommended for closure by the Municipal Health Officer.
In fact, the Court of First Instance of Camarines Norte, in its decision in Civil Case No.
2257, declared said barbershop as a nuisance per se. Thus:

"Under the facts of the case, as well as the law in point, there is no semblance of any
legality or right that exists in favor of the defendants to build a stall and conduct their
business in a sidewalk, especially in a highway where it does not only constitute a
menace to the health of the general public passing through the street and also of the
unsanitary condition that is bred therein as well as the unsightly and ugly structures
in the said place. Moreover, even if it is claimed and pretended that there was a
license, permit or toleration of the defendants' makeshift store and having quarters
for a number of years does not lend legality to an act which is a nuisance per se.
Such nuisance affects the community or neighborhood or any considerable number of
persons and the general public which posed a danger to the people in general
passing and using that place, for in addition, this is an annoyance to the public by the
invasion of its rights — the fact that it is in a public place and annoying to all who
come within its sphere [Baltazar vs. Carolina Midland, Ry. Co., 54 S.C. 242, 32 S.B.
258, cited in 11 Tolentino's Civil Code of the Philippines, p. 375; Kapisanan Lingkod ng
Bayan, Inc. vs. Lacson, CA-G.R. No. 27260-R, March 25, 1964; 61 O.G. 2487].

Xxx xxx xxx

"IN VIEW OF THE FOREGOING, the Court hereby declares that the structures subject
of this complaint as well as those occupied by the impleaded defendants are
nuisances per se, and therefore orders the defendants to demolish the stall and
vacate the premises immediately . . ."

But even without this judicial pronouncement, petitioner could not have been faulted
for having fenced off said barbershop. Paragraph 3, Article 699 of the Civil Code
authorizes the abatement of a public nuisance without judicial proceedings.

"ART. 699. The remedies against a public nuisance are:

[1] A prosecution under the Penal Code or any local ordinance; or


[2] A civil action; or
[3] Abatement, without judicial proceedings."

In the case at bar, petitioner, as mayor of the town, merely implemented the
aforesaid recommendation of the Municipal Health Officer. Having then acted in good
faith in the performance of his duty, petitioner incurred no criminal liability.

Grave coercion is committed when "a person who, without authority of law, shall by
means of violence, prevent another from doing something not prohibited by law or
compel to do something against his will, either it be right or wrong." 1 The three
elements of grave coercion are: [1] that any person be prevented by another from
doing something not prohibited by law, or compelled to do something against his will,
be it right or wrong; [2] that the prevention or compulsion be effected by violence,
either by material force or such display of it as would produce intimidation and
control the will of the offended party, and [3] that the person who restrained the will
and liberty of another had no right to do so, or, in other words, that the restraint was
not made under authority of law or in the exercise of a lawful right. 2

The third element being absent in the case at bar, petitioner cannot be held guilty of
grave coercion.

WHEREFORE, the decision of the Court of Appeals in CA-G.R. No. 19534-CR, is hereby
set aside and petitioner is acquitted of the crime charged. Costs de oficio.

SO ORDERED.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIEGO OPERO Y


COSIPAG, et al., accused, DIEGO OPERO Y COSIPAG, defendant-
appellant.1981 June 11En BancG.R. No. L-48796

PER CURIAM:

Automatic review of the death sentence imposed on Diego Opero for robbery with
homicide with which he was charged in the Circuit Criminal Court of Manila, together
with Reynaldo Lacsinto and Milagros Villegas, who, however, did not appeal their
conviction with much lesser penalty, the last-named, as a mere accessory after the
fact. Another accused, Asteria Avila was acquitted.

In his brief, appellant raised only the question of the propriety of the imposition of the
death penalty on him with the following assignments of error:

"1. THE LOWER COURT ERRED IN NOT CONSIDERING ARTICLE 4, PARAGRAPH 1 OF


THE REVISED PENAL CODE IN DETERMINING THE CRIMINAL LIABILITY OF THE
ACCUSED.

"2. THE TRIAL COURT ERRED IN NOT CONSIDERING ARTICLE 49, PARAGRAPH 1 OF
THE REVISED PENAL CODE IN IMPOSING THE PENALTY ON THE ACCUSED."

For the facts of the case, the narration of which in both the People's brief and that of
appellant does not vary as to the essential ones, We could very well quote from the
Appellee's brief, being the more comprehensive and complete, the following:

"At about 4:00 o'clock in the morning of April 27, 1978, Salvador Oliver, a GSIS
security guard assigned to the House International Hotel at Ongpin Street, Binondo,
Manila, was informed by Demetrio Barcing, another security Guard, that the latter
picked up a little girl about three years old loitering at the second floor of the
building. Rafael Ordoña, a janitor of the House International Hotel, told Oliver that the
little girl is residing at Room 314 of the hotel. Oliver called up Room 314 by telephone
and when nobody answered, he and Barcing brought the little girl to said Room 314
(pp. 6, 7, & 8, t.s.n., June 15, 1978). Upon reaching Room 314, Oliver knocked at the
door, and when nobody answered, he pushed the door open but he smelled foul odor
emanating from the room. Oliver covered his nose with a handkerchief and together
with Barcing and the little girl, they entered the room where they saw prostrate on a
bed a dead person with the face down and both feet tied. Oliver called up the
homicide division of the Manila Police. Patrolman Fajardo who was assigned to
investigate the report of Oliver, together with some funeral parlor men arrived at the
scene, and they saw a small baby crying and trying to get out of a crib near the bed
of the dead person. (pp. 9, 10 & 11, t.s.n., Id.)

"The dead body at Room 314 of the House International Hotel was that of Liew Soon
Ping. Room 314 had been ransacked and personal belongings thrown all around. The
hands and feet of the dead person were tied and the body was bloated. A towel was
tied around the mouth of the victim. Photographs of the dead person and the
condition of the room were taken under Patrolman Fajardo's supervision (pp. 19, 20,
21, 22, 23, & 24, t.s.n., June 15, 1978).

"Patrolman Fajardo came to know that the occupants of Room 314 were Dr. Hong, his
wife Liew Soon Ping who is the victim in this case, their three children and two maids,
namely, Mila and Ester (pp. 26 & 27, t.s.n., Id.). After conducting a preliminary inquiry
around the vicinity of the incident, Patrolman Fajardo made an advance report (Exh.
"O"; pp. 32, 33, & 34, rec.) naming therein three suspects, namely, Diego Opero,
Milagros Villegas, Asteria Avila and a fourth unidentified suspect. The names of these
suspects were furnished by neighbors of the victim to Patrolman Fajardo (pp. 28 & 29,
t.s.n., Id).

"After establishing the identity of the suspects, a follow up team of Manila Policemen
composed of Patrolmen Luis Lim and Servande Malabute was formed to further
investigate the case. A separate police team composed of Sgt. Yanguiling and several
policemen were sent to Leyte and Samar to track down the suspects (pp. 30 & 31,
t.s.n., Id.).

"Dr. Hong, the victim's husband who was in Cebu when the incident in his residence
was committed, was contacted by the police and informed about the death of his
wife. Dr. Hong came back immediately from Cebu and reported to the police. He (Dr.
Hong) made an inventory of the personal effects found missing in his residence,
valued at P30,221.00 (pp. 31, 32 & 33, t.s.n., Id; Exhs. 'R' and 'R-1').

"While the case was under investigation, the homicide division of the Manila Police,
received a radio message (Exh. 'T-1', p. 40, rec.) relayed thru Col. Narciso Cabrera,
Chief of the Detective Bureau of the Manila Police, that Reynaldo Lacsinto one of the
suspects could be found in a school house in Moriones, Tondo, Manila. Another radio
message (Exh. 'T', p. 41, rec.) was received by the police that two other suspects in
the case, namely, Diego Opero and Asteria Avila were picked up by the Samar P.C.
and some of the missing articles, namely, one (1) camera, flashlight, bill fold, and
other personal belongings were recovered from them (pp. 35 & 36, t.s.n., Id.).

"Reynaldo Lacsinto was taken to police headquarters and after appraising him of his
rights under the constitution, his statement was taken in the presence of his father
(pp. 37, 38 & 39, t.s.n., Id; Exhs. 'U' & 'U-1', pp. 42, 43, 44, 45, 46, 47 & 48, rec.). In
his said statement to the police, Lacsinto admitted his participation and narrated in
detail the commission of the robbery in Room 314 of the House International Hotel.
"The Samar P.C. turned over three other suspects, namely Diego Opero, Milagros
Villegas and Asteria Avila to Sgt. Yanguiling who brought said suspects to Manila and
turned them over to the homicide division of the Manila Police, together with some of
the stolen articles (pp. 31 & 32, t.s.n., June 16, 1978). Statements of these three
suspects (Exhibits 'B', 'C' and 'D', respectively) taken by the Samar P.C. were also
turned over by Sgt. Yanguiling to the homicide division (pp. 34 & 35, t.s.n., Id.). Opero
was investigated further at the Manila Police Headquarters and he gave a
supplemental statement (Exh. 'FF', pp. 70-74, rec.; p. 36, t.s.n., Id.) admitting that he
had robbed the victim and identified some of the missing articles recovered from his
possession (pp. 41 & 42, t.s.n., Id.). He described in detail how he planned the
robbery and named the rest of his co-accused as willing participants. He also
narrated in his said supplemental statement that he and his co-accused Lacsinto
subdued the victim by assaulting her, tying up her hands and feet stabbing her and
stuffing her mouth with a piece of pandesal (pp. 70-74, rec.)

"In her statement to the Manila police (Exh. 'GG', pp. 74 & 75, rec.) Milagros Villegas
identified the stolen clothes which were given to her by Opero. (pp. 44, 45 & 46,
t.s.n., Id.)

"The third suspect, Asteria Avila told the Manila Police that she was not a party to the
crime and upon advice of her lawyer she did not give any further statement. (p. 47,
t.s.n., Id.)

"A reenactment of the crime at the crime scene was held under the direction of
Opero portraying - his role, with Lacsinto depicting his part, and pictures of the
reenactment were taken (pp. 51, 52, 53, 54, 55, 56, 57, 58, 59 & 60, t.s.n., Id., pp.
79-99, incl., rec.)

"The body of the victim Liew Soon Ping was autopsied by Dr. Angelo Singian, then
Chief of the Medico Legal Division of the Western Police District. The body was
identified by the victim's husband. Dr. Singian examined the body of the victim and
issued a death certificate (Exh. 'AA'), and the necropsy report (Exh. 'BB'), with the
following findings: 1) a pale yellowish band across the eyes of the victim caused by
the application of a towel, or broad piece of cloth across the eyes; 2) a pale yellowish
band across the mouth caused by a similar material as the one applied across the
victim's eyes, which was tied across the mouth; 3) contusion and hematoma on the
upper and lower lips caused by a blunt instrument; 4) abrasions on the right side of
the chin; 5) broad linear mark of clothing material on the neck; 6) cord or ligature
marks on the left and right arm, indicating that both arms were tied; 7) abdomen
distended with gas, due to decomposition; 8) epiglotis, hematoma and contusion on
the right side of the tongue; 9) contusions and hematoma on the right cheek; 10)
superficial stab wound measuring 0.8 cm. on the right side of the chin caused by a
sharp bladed instrument; 11) superficial stab wound on the mid-axilliary lie caused
by a sharp bladed instrument; 12) stab wound on the left forearm; 13) cord markings
on both feet.

"Internal findings reveal an impacted bolus of white bread measuring 3 x 2.5 cm. in
the oropharynx. The tongue has contusion on the right lateral side and an abrasion
across the middle portion. The larynx and trachea are markedly congested. The
cause of death was due to 'asphyxiation by suffocation' with an impacted bolus into
the oropharynx and compression of the neck with a broad clothing around the neck"
(pp. 6-18, incl., t.s.n., June 16, 1978; Exh. 'BB', 62 & 63, rec.)

In his first assignment of error, appellant advances the theory that he never intended
to kill the deceased, his intention being merely to rob her, for if indeed he had the
intention to kill her, he could have easily done so with the knife, and therefore, his
liability should be only for robbery.

Appellant's theory finds no basis in the law or in jurisprudence. It has been repeatedly
held that when direct and intimate connection exists between the robbery and the
killing, regardless of which of the two precedes the other, or whether they are
committed at the same time, the crime committed is the special complex crime of
robbery with homicide. 1 If the circumstances would indicate no intention to kill, as in
the instant case where evidently, the intention is to prevent the deceased from
making an outcry, and so a "pandesal" was stuffed into her mouth, the mitigating
circumstance of not having intended to commit so grave a wrong may be
appreciated. 2 The stuffing of the "pandesal" in the mouth would not have produced
asphyxiation had it not slid into the neckline, "caused by the victim's own
movements," according to Dr. Singian. The movements of the victim that caused the
"pandesal" to slide into the neckline were, however, attributable to what appellant
and his co-accused did to the victim, for if they did not hogtie her, she could have
easily removed the "pandesal" from her mouth and avoided death by asphyxiation.

It may not avail appellant to contend that the death was by mere accident for even if
it were so, which is not even beyond doubt for the sliding of the pandesal into the
neckline to produce asphyxiation could reasonably have been anticipated, it is a
settled doctrine that when death supervenes by reason or on the occasion of the
robbery, it is immaterial that the occurrence of death was by mere accident. 3 What
is important and decisive is that death results by reason or on the occasion of the
robbery. 4 These Spanish doctrines were cited by this Court in People vs.
Mangulabnan, et al., 99 Phil. 992.

Appellant would also have Article 49, paragraph 1 of the Revised Penal Code apply to
him, and faults the court a quo for having failed to do so. The provision cited reads:

"Art. 49. Penalty to be imposed upon the principals when the crime committed is
different from that intended. - In cases in which the felony committed is different
from that which the offender intended to commit, the following rules shall be
observed:

"1. If the penalty prescribed for the felony committed be higher than that
corresponding to the offense which the accused intended to commit, the penalty
corresponding to the latter shall be imposed in its maximum period.

xxx xxx xxx"

The foregoing provision has been applied only to cases when the crime committed
befalls a different person from the one intended to be the victim. This was the explicit
ruling in the case of People vs. Albuquerque, 59 Phil. 150-153, citing decisions of the
Supreme Court of Spain. 5

In the instant case, the intended victim, not any other person, was the one killed, as
a result of an intention to rob, as in fact appellant and his co-accused, did rob the
deceased. As stated earlier, what may be appreciated in appellant's favor is only the
mitigating circumstance of not having intended to commit so grave a wrong as that
committed, under paragraph 3 of Article 13 of the Revised Penal Code, an entirely
different situation from that contemplated under paragraph 1, Article 49 of the same
Code, where as already explained, the different felony from that intended, befalls
someone different from the intended victim, as when the person intended to be killed
is a stranger to the offender, but the person actually killed is the offender's father,
thereby making the intended felony which is homicide different from the crime
actually committed which is parricide.

Notwithstanding the presence of the mitigating circumstance of not having intended


to commit so grave a wrong as that committed, there still remains one aggravating
circumstance to consider, after either one of the two aggravating circumstances
present, that of superior strength and dwelling, is offset by the mitigating
circumstance aforesaid. The higher of the imposable penalty for the crime
committed, which is reclusion perpetua to death, should therefore be the proper
penalty to be imposed on appellant. This is the penalty of death as imposed by the
lower court.

WHEREFORE, the judgment appealed from being in accordance with law and the
evidence, except as to the non-appreciation of the mitigating circumstance of having
no intention to commit so grave a wrong as that committed, which nevertheless does
not call for the modification of the penalty of death as imposed by the lower court, is
hereby affirmed. Cost de oficio.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANOLITO TIDONG y


LASCANO, accused-appellant.1993 August 132nd DivisionG.R. No. 101583D
ECISION

REGALADO, J.:

The alleged refusal of an employer to accede to the demand of an employee for his
separation pay, which the latter believed he was rightfully entitled to, resulted in the
former's death and the latter's indictment and conviction for robbery with homicide
and double frustrated homicide.

Accused-appellant Manolito Tidong was charged before Branch 172 of the Regional
Trial Court of Valenzuela, Metro Manila, with homicide and double frustrated homicide
in its Criminal Case No. 177-V-91. The accusatory portion of the information alleges:

"That on or about the 27th day of March 1991 in Valenzuela, MM and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to gain
and by means of force and intimidation, did then and there wilfully, unlawfully and
feloniously take, rob and carry away the amount of P5,000.00 from VICENTE CO Y SY;
that on the occasion of said robbery and for the purpose of enabling him to take,
steal and carry away the aforementioned amount, said accused with intent to kill, did
then and there wilfully, unlawfully and feloniously stab said Vicente Co y Sy causing
the latter sustained (sic) physical injuries which caused his death; that as a further
consequence, said accused also stabbed MARIO CO Y SY and MARTIN CO Y SY,
causing both to sustain serious physical injuries which however, did not result to their
death, due to the timely, efficient intervention rendered to them by the FATIMA
MEDICAL CENTER, Valenzuela." 1

Duly assisted by counsel, accused entered a plea of not guilty when arraigned on
April 22, 1991. After trial on the merits, on August 7, 1991 the lower court
promulgated its judgment convicting appellant of the crime charged, under the
following disposition:

"WHEREFORE, in view of the foregoing, the Court finds the accused guilty beyond
reasonable doubt of the crime of Robbery with Homicide and Double Frustrated
Homicide, and hereby sentences him to suffer the penalty of Reclusion Perpetua; to
indemnify the heirs of Vicente Co in the sum of P50,000.00; to indemnify the
complaining witnesses in the unrecovered amount of P800.00 and to pay the costs.

"The accused shall be credited with the full term of his preventive imprisonment." 2

Appellant has now come to us on appeal, and in his brief, he imputes to the trial
court the following errors: (1) in giving credence to the testimonies of the prosecution
witnesses which are replete with bias and material inconsistencies; (2) in refusing to
acquit him although the evidence adduced by the prosecution failed to overcome the
constitutional presumption of innocence by clear and convincing evidence
establishing his guilt beyond reasonable doubt; and (3) assuming ex gratia argumenti
that he was responsible for the injuries sustained by Mario Co, Martin Co and the
deceased Vicente Co, in finding him guilty of robbery with homicide and double
frustrated homicide and without appreciating the mitigating circumstance of
voluntary surrender. 3

The pertinent confluence of facts which gave rise to this prosecution is commendably
summarized by the Solicitor General, as set forth hereunder, on the bases of the
evidence of record correspondingly cited in authentication thereof.

"Around 7:00 o'clock in the evening of March 27, 1992, appellant entered the Co
residence at Rincon Street, Malinta, Valenzuela, Metro Manila. The same address
housed the wiring and cable business of the Co family. Appellant was familiar with the
layout of the place, having worked there at least three years, from 1988 to 1991 (tsn,
May 10, 1991, pp. 2-3)

"Once inside, appellant grabbed Joan ** Co, the six-year old daughter of Martin Co.
The commotion attracted the attention of the Co brothers who rushed to the scene
and pleaded with appellant not to harm the child. Appellant, while poking a knife at
the neck of Joan, demanded money from the Cos. He threatened to kill the child if he
was not given the amount of P5,000.00 (id., p. 4).

"Vicente Co left to get the money. When he returned, appellant told him to place the
money on the floor. When Vicente did as instructed, appellant picked up the money
and placed it in his pocket. Then appellant started retreating towards an alley. All this
time, the Co family pleaded with him to release Joan. After retreating about ten (10)
meters, appellant suddenly pushed Joan, who fell on the ground. Vicente was the first
to react. He rushed to help the fallen child. As he came nearer, appellant stabbed him
on the chest. In rapid succession, Martin Co instinctively rushed to assist Vicente and
Joan. He was stabbed at the back by appellant. Then, Mario Co also tried to help his
brothers but was stabbed, too. Mario sustained injuries on his left wrist and left ear.
He was, however, able to shout for help from the neighbors. Hearing this, appellant
ran away (tsn, April 29, 1991, pp. 4-6).

"Help arrived as angry neighbors of the Cos chased appellant. The Co brothers were
rushed to Fatima Hospital for immediate medical treatment. Vicente Co died at the
hospital (ibid.). He sustained two incised wounds on the face, one stab wound on the
left side of the chest, and minor contusions on both knees. Cause of death was
severe hemorrhage, secondary to the chest stab wound (tsn, June 3, 1991, pp. 4-5).

"Pfc. Henry Marteja of the Valenzuela Police was conducting a routine surveillance in
the area at the time of the incident. He was walking near a gasoline station at the
corner of Malinta when someone called his attention and informed him of a
commotion at Rincon Street. Marteja went to Rincon Street to verify the reported
incident. There he saw appellant being chased by the townspeople. He joined in the
pursuit. As he came nearer, he saw that appellant was holding a knife. He identified
himself as a police officer and ordered appellant to stop. Appellant did as ordered.
Marteja then got the knife from appellant and brought him to the police station.
When asked by Marteja why he was being chased by the townspeople, appellant
admitted that he hostaged (sic) a child. At the police station, Marteja also recovered
the amount of P4,200.00 from appellant (tsn, June 10, 1991, pp. 2-3)." 4

As expected, the defense came up with an entirely different story, for the details of
which we go back to appellant's brief earlier adverted to and quote from the same at
length, especially since the resolution of this case apparently turns on the factual
presentation by the parties of their respective versions and the credibility thereof.

"Accused Manolito Tidong y Lascano, in his defense, testified that Martin, Mario and
Vicente Co used to be his employers at the United Power and Industrial Corporation.
He started working there in 1988. On February 22, 1991 he was suspended for 2
weeks for reasons he does not know but according to the Cos he was being
suspended because he was always complaining about his work. After the 2 weeks'
suspension or on March 11, 1991, he returned to work but he was not accepted
anymore as according to Martin Co he already had a replacement. He demanded for
his separation pay but Martin told him that he has no authority from the company to
pay him. Upon hearing this, he told Martin that he would just come back on some
other day. On March 25, 1991 when he went back to get his separation pay, he was
advised by Martin to return on March 27, 1991 as there was yet no money. When he
returned on March 27, Martin and Mario again told him that there was no money. He
then told them that if they would not give him his separation pay he would just return
to work but he was told that the owner did not want him to work there anymore. So
he told them that he would not leave the premises unless he was given his
separation pay. Martin got angry and cursed him, saying: 'Putang-ina mo, wala ka
nang karapatan na magpunta rito dahil wala ka na sa trabaho', but he insisted that
he would leave only after he is paid his separation pay. At this juncture, Martin left
and went inside his house and returned with a gun. Upon seeing Martin with a gun,
he moved to run but as he was about to run he met Martin's helper with Jo Ann (sic).
Instinctively, he grabbed the child to protect himself and prevent Martin from
shooting him. He held the child by the neck and hair. Martin told him not to hurt the
child and they will pay him but he told him to let go of the gun first and throw it
towards his direction. At this point, Vicente Co, who was previously asked by Martin to
get the money, came out and approached him to give the money but he told him to
just place it on the floor, so that he could pick it after the gun was thrown in his
direction. After Martin ha(d) thrown the gun, he picked up both money and gun and
tucked the gun in his waist. He let go of the child and left for the exit. When he was
already going out he heard the shout of Martin 'Putang ina mo Lito walang bala ang
baril ko'. He looked back and saw the Cos running after him with wooden clubs. He
ran outside and push(ed) the gate so hard. Outside, he was met by two men. He was
stabbed once on the left arm and as he was retreating he saw Vicente and Martin
come out with wooden clubs. Martin struck the man but he missed and was stabbed
instead. He ran but his path was blocked and he was clubbed by the other companion
of the man who stabbed Martin. He lost consciousness and did not know what
happened to Vicente.

"Accused further declared that when he regained consciousness the policemen were
already there. After he explained to the policemen how the money and gun came into
his possession, he was brought by the policemen to Polo Hospital where his head
injuries were treated. He was transferred to the Jose Reyes Memorial Hospital where
he was X-rayed and then brought to the police station where he was detained. He
denied the charges against him.

"On cross-examination, Manolito Tidong testified that he went to the Co family at


6:45 PM because he was told to come back on March 27, 1991 after the employees
have received their pay. He denied having received the P6,987.00 in January 1991,
as part of his separation pay and other financial benefits, reflected in the cash
voucher dated January 19, 1991 (Exh. N). Although he admitted that the signature
therein is his, he explained that everytime they received their pay they were made to
sign and that he remembered he signed a voucher like Exhibit "N" but it did not have
the particulars stated therein. He also denied having signed any Affidavit of
Quitclaim.

"He also declared that he does not know Pfc. Henry Marteja and he denied that a
knife was ever recovered from him during the incident. He categorically declared that
he grabbed Jo Ann (sic) only to defend himself, and prevent Martin from shooting
him." 5

A careful perusal of the entire records of this case compels us to conclude that this
appeal is bereft of merit and that the prosecution has established beyond reasonable
doubt a case of robo con homicidio against appellant.

Martin and Mario Co both took the witness stand and identified appellant as the
perpetrator of the crimes charged. Both brothers testified without vacillation and in a
straightforward manner, directly inculpating appellant as alleged in the information.
Although their testimonies would appear to jibe in almost every point, giving rise to a
suspicion of rehearsed statements, still this fact does not necessarily discredit their
declarations as a whole since such portions thereof deemed worthy of belief may be
credited. 6

The trial court has observed, and we agree with its position, that the version of the
prosecution witnesses is more tenable than that of the defense. For one, we have
held that credibility is a matter for the trial court to determine and, generally, we
have been inclined to leave it to the sound discretion of the lower court. 7 Besides,
the defense has failed to present, nor did it attempt to proffer, any evidence of ill
motive on the part of the Co brothers to falsely testify against appellant. When there
is no evidence indicating that the principal witness for the prosecution was moved by
any improper motive, the presumption is that he was not so moved, and his
testimony is entitled to full faith and credit. 8

Furthermore, the testimonies of the Cos were corroborated by other additional


evidence presented by the prosecution, such as the sworn statement of Mario Co and
the testimony of the arresting officer, Pfc. Henry Marteja.

A few hours after the incident, Mario Co executed a salaysay or sworn statement. 9
The details in the statement tallied with his declarations in open court and whatever
slight discrepancies there are between the two are on minor matters. Both his
testimony in court and his sworn statement conduced to one consistent basic fact,
that is, that appellant obtained P5,000.00 from the offended parties through force
and intimidation and, as a consequence thereof, Vicente Co died while Mario and
Martin Co sustained injuries.

We agree with the trial court that the salaysay given by Mario Co just a few hours
after the startling occurrence is credible since at the time the statement was given,
the incident "was still fresh in his mind" and "he would have had no time yet to
concoct or fabricate a story" in so short a time. 10 Stated otherwise in evidential
terminology, such statements constituted part of the res gestae.

Appellant seeks to assail Mario Co's credibility by pointing out an alleged


inconsistency between his sworn statement and his testimony. Appellant claims that
Mario Co declared in his sworn statement "that he was inside the house when he
heard a commotion outside and when he went out he saw the accused poking a knife
at the child." Then, according to appellant, when Mario Co testified before the trial
court, he averred that "the accused was inside the(ir) house." 11 We find such
argument meritless and misleading.

In his testimony, Mario Co stated that he heard a commotion outside his room,
prompting him to investigate. 12 Nowhere in his testimony did he declare that
appellant was inside the house. It is highly probable that the commotion he heard
was coming from outside the house, not merely outside his room. Be that as it may
and even assuming that appellant's observation is true, still the most honest witness
may make mistakes sometimes, but such honest lapses do not necessarily impair his
credibility, 13 especially when minor details are involved.

On the witness stand, Pfc. Henry Marteja testified that at around 7:00 P.M. of March
27, 1991, while he was conducting routine surveillance, somebody approached him
and informed him that there was a commotion in Rincon, Malinta, Valenzuela. He
immediately proceeded to the scene and saw a man being chased by the
townspeople. He also gave chase and ordered the man to stop. The man, later
identified as appellant, stopped and surrendered to him. A knife and P4,200.00 were
recovered from the former. 14

It appears that although the Co brothers testified that they gave appellant the sum of
P5,000.00, what was actually recovered from the latter was only P4,200.00. The
discrepancy may be explained by the fact that when appellant came out of the
compound, he encountered the neighbors of the Cos who subsequently mauled him.
It is not far-fetched to conclude that the P800.00 deficit may either have been lost or
was taken from him during the melee.

The testimony of Pfc. Marteja is significant because it corroborates the earlier claims
of the Co brothers that indeed appellant threatened Joan with a knife and forcibly
took P5,000.00 from them. The statements of this police officer thus demolishes
appellant's account of what supposedly transpired on that occasion. In his testimony,
appellant asserted that Martin Co brought out a gun, prompting him to hold Joan by
the hair and neck and that he was able to gain possession of the gun which he tucked
in his waistline before he went out of the Cos' compound. 15 No mention was ever
made by appellant of having any knife with him prior to his arrest. If appellant's
version of the incident is to be believed, how then would he explain the fact that the
arresting officer recovered from him a knife and not a gun?

In the absence of any countervailing evidence, the testimony of police authorities are
given full faith and credence as they are presumed to be in the regular performance
of their official duties. 16 Furthermore, no iota of evidence was ever presented to
even suggest that Pfc. Marteja had dubious or evil motives to implicate appellant in
the dastardly attack against the Co brothers and little Joan.

The defense argues that appellant never had the original design to rob when he went
to the Co compound. That may be so. The compound of the Cos is fenced and the
only entrance is through the gate with a security guard. It was only 7:00 o'clock in
the evening and a number of people were still awake, hardly the proper occasion for
staging a successful robbery. Notable too is the fact that the amount recovered from
appellant was only in the amount of the separation pay which he demanded, leading
to the inference that perhaps appellant had no original intent to rob the Cos.

Nonetheless, even if there was no original design to commit robbery, appellant is still
liable for robbery if at the time of the taking of the personal property of another with
violence or intimidation there was intent to gain. Although the Court gives
considerable weight to the theory of the prosecution, we are not inclined to entirely
do away with the version of the defense, especially with regard to his claim that he
went to the Co compound to demand his separation pay. Although disputed by the
Cos, it is possible that appellant believed, rightly or wrongly, that he had the right to
a separation pay.

It is likewise probable that while appellant was inside the compound, a disagreement
between him and one of the Co brothers took place. Exasperated with his employers'
continuing intransigence against giving him his separation pay, he threatened the
Cos, which resulted in an altercation culminating in the tragedy. Yet, assuming that
appellant had all the legal right to demand his separation pay, he should not have
taken the law into his hands but should have gone through legal channels to demand
his rights. While we empathize with the plight of the overworked and underpaid
Filipino laborer, that does not warrant the grant of a license for lawlessness.

Even if we were to accept appellant's version as partially quoted below, still by his
very own admission the money he got from the Cos was not given voluntarily by
them. Consider his testimony on the succession of events coetaneous with and
subsequent to the killing:

"Q What happened after Mario Co came out of his residence with a gun?
A Upon seeing the gun I was about to run but I met their helper together with Jo-Ann
(sic) so I grabbed Jo-Ann (sic), sir.

Q Why did you have to grab the child Jo-Ann (sic)?


A Because I was afraid that I might be shot, sir.

Q Shot by whom?
A Martin, sir.

Q After you grabbed the child in order to protect yourself from (sic) fear that you will
be shot by Martin Co, what happened after that?
A I held the child by the neck and the hair, sir.

Q When Martin Co saw what you did with the child what did he do, if he did
anything?
A They told me not to hurt the child and they will pay me, sir.

xxx xxx xxx

Q Why did you have to ask him to throw the gun near you?
A To make sure that I would not be shot, sir.

Q Did he throw the gun near you?


A It took him some time, sir. He first tended (sic) the money.

Q Who tended (sic) the money?


A Vicente came out and he was the one who brought the money, sir." (Emphasis
ours.) 17

Thus, appellant himself revealed that the Cos were only compelled to give him the
P5,000.00. The Cos, apparently fearing for the safety of Joan, pleaded to him not to
hurt the child and informed him that they were willing to give him his separation pay.
Apparently, appellant received the money with the conscious knowledge that the Cos
parted with the money, to say the least, unwillingly. Appellant said Martin Co took
some time to give him the gun because Vicente had to get the money inside the
house. If his primary purpose was to use Joan only as a shield to protect himself, why
did he have to wait for Vicente Co to get the money? Fearing for his life, definitely his
immediate impulse at that very moment would have been to get away from the
compound as soon as possible, instead of tarrying there just for the money.

Appellant's main defense is denial of both criminal intent and the overt felonious act.
Denial, like alibi, is inherently weak and cannot prevail over the positive and credible
testimonies of the prosecution that the accused committed the crime. 18 In the case
at bar, the denial of appellant is unsubstantiated by any positive evidence necessary
and sufficient to overthrow the cogent and plausible testimonies of the prosecution
witnesses.

Appellant, as the only witness for the defense, denied the charges against him,
foisting the blame instead on the Cos. The allegations of appellant do not and cannot
inspire belief. He was arrested near the crime scene, with the knife and money
recovered from him. He disclaimed authorship of the death of Vicente Co and the
injuries sustained by Mario and Martin Co, his lame and easily fabricated excuse
being that it was done by two unknown men whom he providentially met on his way
out of the compound. According to appellant, these two men attacked him and the Co
brothers. 19 Said pretension, to say the least, is fantastic. These supposedly
anonymous persons were never presented in court nor at least identified. Besides,
why would two unknown persons, unprovoked and for no apparent reason, attack him
and the Co brothers at that very moment and conveniently disappear upon the
arrival of the policeman? This claim approximates a phantasmagoria conceived by an
overly fertile imagination.

Proceeding on the possibility of an acquittal, appellant theorizes that assuming


arguendo his responsibility for the injuries sustained by the Cos, still it was done
purely in self-defense. Suffice it to say that, under the evidence on record, appellant
miserably failed to substantiate this improbable claim. An accused who admits
inflicting a fatal injury on his victim and invokes self-defense must rely on the
strength of his own evidence and not on the weakness of that of the prosecution for,
even if weak, the prosecution evidence gains more credibility. 20

Appellant seeks to capitalize on the failure of the Cos to call for police assistance,
despite the opportunity to do so. That may be the most logical course of action they
could have taken but not necessarily the only one. The workings of the human mind
when placed under emotional stress are unpredictable and people react differently.
21 The actuations of appellant himself on that occasion cannot but be categorized as
either abnormal or sub-normal.

Regarding the stab wounds inflicted on the victims, appellant asserts that he could
not have inflicted the stab wounds on the left side of the chest of Vicente Co, the stab
wounds at the back of Martin nor the lacerated wounds sustained by Mario, because
"according to Mario Co, the accused was running towards the gate when he released
the child," hence he was in no position to inflict injuries on the Cos. 22 The records of
the case, however, show that the injuries sustained by the Co brothers could have
been easily and conceivably inflicted by appellant.

Dr. Prospero A. Cabanayan, who conducted the autopsy on Vicente Co, noted that the
deceased sustained three wounds, two on the face and one on the left side of the
chest. The doctor concluded that the victim could have been kneeling down when he
sustained the wound in his left chest, considering the presence of two contusions on
both knees of the deceased. 23 This finding is in harmony with the testimony of the
Co brothers that Vicente Co was attacked while he was trying to help Joan who was at
that time on the ground after appellant pushed her.

On the other hand, Dr. Elvis Verzo, who personally treated Martin and Mario Co,
testified that Martin sustained a lacerated wound at the back of his ear while Mario
suffered slight physical injuries. Appellant argues that the attending physician
testified that the lacerated wounds sustained by both brothers were caused by a
blunt instrument, hence appellant could not have possibly inflicted them since it was
a knife which was found in his possession. We reject this reasoning. A reading of the
doctor's testimony shows that although Dr. Verzo testified that sharp instruments
usually cause incised wounds, he also stated that the same instrument may also
cause lacerated wounds. 24

As to the designation of the offense of which appellant was convicted, a modification


is in order. The information charges appellant with the crime of robbery with homicide
and double frustrated homicide. The trial court erred when it likewise convicted the
accused of robbery with homicide and double frustrated homicide. It is true that there
was a direct relation and an intimate connection between the robbery and the killing
of Vicente Co. Said information, however, should have charged the accused only with
the special complex crime of robbery with homicide under paragraph 1, Article 294 of
the Revised Penal Code, and the court below should have convicted appellant only for
the same offense.

There is no special complex crime of robbery with homicide and double frustrated
homicide. The offense should have been designated as robbery with homicide alone,
regardless of the number of homicides or injuries committed. These other felonies
have, at the most and under appropriate circumstances, been considered merely as
generic aggravating circumstances which can be offset by mitigating circumstances.
25 The term "homicide" in paragraph 1 of Article 294 is used in its generic sense,
that is, any act that results in death. Any other act producing injuries short of death is
integrated in the "homicide" committed by reason or on the occasion of the robbery,
assuming, of course, that the homicide is consummated. If no death supervenes, the
accused should be held liable for separate crimes of robbery and frustrated or
attempted homicide or murder (provided that there was intent to kill) if the latter
offenses were not necessary for the commission of the robbery, or for a complex
crime of robbery and frustrated or attempted homicide or murder under Article 48 of
the Code if the latter offenses were the necessary means for the commission of the
robbery.

One last point. Anent the issue of whether or not the trial court erred in not
appreciating the mitigating circumstance of voluntary surrender, we agree with
appellant and the Solicitor General that the trial court acted erroneously on this
matter. The records show that appellant, who was running away from the crowd
mauling him, voluntarily surrendered to Pfc. Marteja when the latter subsequently
pursued him and shouted that he was a policeman.

However, notwithstanding the presence of the mitigating circumstance of voluntary


surrender, the criminal liability of appellant remains the same. The aforesaid
composite crime of robbery with homicide is punishable by reclusion perpetua to
death. Article 63 of the Code provides that where the law prescribes a penalty
composed of two indivisible penalties and the commission of the act is attended by
ordinary mitigating circumstances, with no aggravating circumstance, the lesser
penalty shall be applied. Hence, even with the presence of the mitigating
circumstance of voluntary surrender, the penalty imposable in this case is still
reclusion perpetua.

WHEREFORE, subject to the aforestated modification that the offense committed by


appellant and for which he should be convicted and punished is the special complex
crime of robbery with homicide, the impugned judgment of the court a quo is hereby
AFFIRMED.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ISABELO PUNO y


GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias "Enry,"
accused-appellants.1993 February 172nd DivisionG.R. No. 97471D E C I S I
ON

REGALADO, J p:

The primal issue for resolution in this case is whether accused-appellants committed
the felony of kidnapping for ransom under Article 267 of the Revised Penal Code, as
charged in the information; or a violation of Presidential Decree No. 532 (Anti-Piracy
and Anti-Highway Robbery Law of 1974), as contended by the Solicitor General and
found by the trial court; or the offense of simple robbery punished by Paragraph 5,
Article 294 of the Revised Penal Code, as claimed by the defense.

In an information dated and filed on May 31, 1989 in the Regional Trial Court of
Quezon City, Branch 103, as Criminal Case No. Q-57404 thereof, appellants were
charged with kidnapping for ransom allegedly committed in the following manner:

"That on or about the 13th day of January, 1988 in Quezon City, Philippines and
within the jurisdiction of this Honorable Court, the said accused, being then private
individuals, conspiring together, confederating with and mutually helping each other,
did, then and there, wilfully, unlawfully and feloniously kidnap and carry away one
MARIA DEL SOCORRO SARMIENTO y MUTUC ** for the purpose of extorting ransom,
to the damage and prejudice of the said offended party in such amount as may be
awarded to her under the provisions of the Civil Code." 1

On a plea of not guilty when arraigned, 2 appellants went to trial which ultimately
resulted in a judgment promulgated on September 26, 1990 finding them guilty of
robbery with extortion committed on a highway, punishable under Presidential
Decree No. 532, with this disposition in the fallo thereof:

"ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO and
ENRIQUE AMURAO GUILTY as principals of robbery with extortion committed on a
highway and, in accordance with P.D. 532, they are both sentenced to a jail term of
reclusion perpetua.

"The two accused are likewise ordered to pay jointly and severally the offended
private victim Ma. Socorro M. Sarmiento the sum of P7,000.00 as actual damages and
P3,000.00 as temperate damages." 3
Before us now in this appeal, appellants contend that the court a quo erred (1) in
convicting them under Presidential Decree No. 532 since they were not expressly
charged with a crime therein; (2) in applying Sections 4 and 5, Rule 120 of the Rules
of Court since the charge under said presidential decree is not the offense proved
and cannot rightly be used as the offense proved which is necessarily included in the
offense charged. 4

For the material antecedents of this case, we quote with approval the following
counter-statement of facts in the People's brief 5 which adopted the established
findings of the court a quo, documenting the same with page references to the
transcripts of the proceedings, and which we note are without any substantial
divergence in the version proffered by the defense.

"This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988
by the two accused (tsn, Jan. 8, 1990, p. 7).

"Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon


City called Nika Cakes and Pastries She has a driver of her own just as her husband
does (Ibid., pp. 4-6).

"At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who
is the personal driver of Mrs. Sarmiento's husband (who was then away in Davao
purportedly on account of local election there) arrived at the bakeshop. He told Mrs.
Socorro that her of driver Fred had to go to Pampanga on an emergency (something
bad befell a child), so Isabelo will temporary (sic) take his place (Id., pp. 8-9).

"Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the
Mercedes Benz of her husband with Isabelo on (sic) the wheel. After the car turned
right in (sic) a corner of Araneta Avenue, it stopped. A young man, accused Enrique
Amurao, boarded the car beside the driver (Id., pp. 9-10).

"Once inside, Enrique clambered on top of the back side of the front seat and went
onto where Ma. Socorro was seated at the rear. He poke (sic) a gun at her (Id., p. 10).

"Isabelo, who had earlier told her that Enrique is his nephew announced, 'ma'm, you
know, I want to get money from you.' She said she has money inside her bag and
they may get it just so they will let her go. The bag contained P7,000 00 and was
taken (Id., pp. 11-14).

"Further on, the two told her they wanted P100,000.00 more Ma. Socorro agreed to
give them that but would they drop her at her gas station in Kamagong St., Makati
where the money is? The car went about the Sta. Mesa area. Meanwhile, Ma. Socorro
clutched her Rosary and prayed Enrique's gun was menacingly storing (sic) at her
soft bread (sic) brown, perfumed neck. He said he is an NPA and threatened her (Id.,
p. 15).

"The car sped off north towards the North superhighway. There Isabelo, Beloy as he is
called, asked Ma. Socorro to issue a check for P100,000.00. Ma. Socorro complied.
She drafted 3 checks in denominations of two for P30 thousand and one for P40
thousand. Enrique ordered her to swallow a pill but she refused (Id., pp. 17-23).

"Beloy turned the car around towards Metro Manila. Later, he changed his mind and
turned the car again towards Pampanga. Ma. Socorro, according to her, jumped out of
the car then, crossed to the other side of the superhighway and, after some vehicles
ignored her, she was finally able to flag down a fish vendor's van. Her dress had
blood because, according to Ma. Socorro, she fell down on the ground and was
injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26).

"On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27).

"Both accused were, day after, arrested. Enrique was arrested trying to encash Ma.
Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13)" 6

As observed by the court below, the defense does not dispute said narrative of
complainant, except that, according to appellant Puno, he stopped the car at North
Diversion and freely allowed complainant to step out of the car. He even slowed the
car down as he drove away, until he saw that his employer had gotten a ride, and he
claimed that she fell down when she stubbed her toe while running across the
highway. 7

Appellants further testified that they brought the Mercedes Benz car to Dolores, San
Fernando, Pampanga and parked it near a barangay or police outpost. They
thereafter ate at a restaurant and divided their loot. 8 Much later, when he took the
stand at the trial of this case, appellant Puno tried to mitigate his liability by
explaining that he was in dire need of money for the medication of his ulcers. 9

On these relatively simple facts, and as noted at the start of this opinion, three
theories have been advanced as to what crime was committed by appellants. The
trial court cohered with the submission of the defense that the crime could not be
kidnapping for ransom as charged in the information. We likewise agree.

Prefatorily, it is worth recalling an accepted tenet in criminal law that in the


determination of the crime for which the accused should be held liable in those
instances where his acts partake of the nature of variant offenses, and the same
holds true with regard to the modifying or qualifying circumstances thereof, his
motive and specific intent in perpetrating the acts complained of are invaluable aids
in arriving at a correct appreciation and accurate conclusion thereon.

Thus, to illustrate, the motive of the accused has been held to be relevant or
essential to determine the specific nature of the crime as, for instance, whether a
murder was committed in the furtherance of rebellion in which case the latter
absorbs the former, or whether the accused had his own personal motives for
committing the murder independent of his membership in the rebellious movement
in which case rebellion and murder would constitute separate offenses. 10 Also,
where injuries were inflicted on a person in authority who was not then in the actual
performance of his official duties, the motive of the offender assumes importance
because if the attack was by reason of the previous performance of official duties by
the person in authority, the crime would be direct assault; otherwise, it would only be
physical injuries. 11

In the case at bar, there is no showing whatsoever that appellants had any motive,
nurtured prior to or at the time they committed the wrongful acts against
complainant, other than the extortion of money from her under the compulsion of
threats or intimidation. This much is admitted by both appellants, without any other
esoteric qualification or dubious justification. Appellant Puno, as already stated,
candidly laid the blame for his predicament on his need for funds for, in his own
testimony, "(w)hile we were along the way `Mam (sic) Corina was telling me 'Beloy, I
know your family very well and I know that your (sic) not (a) bad person, why are you
doing this?' I told her `Mam (sic), because I need money and I had an ulcer and that I
have been getting an (sic) advances from our office but they refused to give me any
bale (sic) . . . ." 12

With respect to the specific intent of appellants vis-a-vis the charge that they had
kidnapped the victim, we can rely on the proverbial rule of ancient respectability that
for this crime to exist, there must be indubitable proof that the actual intent of the
malefactors was to deprive the offended party of her liberty, 13 and not where such
restraint of her freedom of action was merely an incident in the commission of
another offense primarily intended by the offenders. Hence, as early as United States
vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been held that the
detention and/or forcible taking away of the victims by the accused, even for an
appreciable period of time but for the primary and ultimate purpose of killing them,
holds the offenders liable for taking their lives or such other offenses they committed
in relation thereto, but the incidental deprivation of the victims liberty does not
constitute kidnapping or serious illegal detention.

That appellants in this case had no intention whatsoever to kidnap or deprive the
complainant of her personal liberty is clearly demonstrated in the veritably
confessional testimony of appellant Puno:

"Q - At what point did Mrs. Sarmiento handed (sic) the bag containing the P7,000.00
to your nephew?

A - Santo Domingo Exit.

Q - And how about the checks, where were you already when the checks was (sic)
being handed to you?

A - Also at the Sto. Domingo exit when she signed the checks.

Q - If your intention was just to robbed (sic) her, why is it that you still did not allow
her to stay at Sto. Domingo, after all you already received the money and the
checks?

A - Because we had an agreement with her that when she signed the checks we will
take her to her house at Villa (sic) Verde.

Q - And why did you not bring her back to her house at Valle Verde when she is (sic)
already given you the checks?

A - Because while we were on the way back I (sic) came to my mind that if we reach
Balintawak or some other place along the way we might be apprehended by the
police. So when we reached Santa Rita exit I told her `Mam (sic) we will already stop
and allow you to get out of the car.'" 16

Neither can we consider the amounts given to appellants as equivalent to or in the


nature of ransom, considering the immediacy of their obtention thereof from the
complainant personally. Ransom, in municipal criminal law, is the money, price or
consideration paid or demanded for redemption of a captured person or persons, a
payment that releases from captivity. 17 It can hardly be assumed that when
complainant readily gave the cash and checks demanded from her at gunpoint, what
she gave under the circumstances of this case can be equated with or was in the
concept of ransom in the law of kidnappings. These were merely amounts
involuntarily surrendered by the victim upon the occasion of a robbery or of which
she was summarily divested by appellants. Accordingly, while we hold that the crime
committed is robbery as defined in Article 293 of the Code, we, however, reject the
theory of the trial court that the same constitutes the highway robbery contemplated
in and punished by Presidential Decree No. 532.

The lower court, in support of its theory, offers this ratiocination:

The court agrees that the crime is robbery. But it is also clear from the allegation in
the information that the victim was carried away and extorted for more money. The
accused admitted that the robbery was carried on from Araneta Avenue up to the
North Superhighway. They likewise admitted that along the way they intimidated Ma.
Socorro to produce more money that she had with her at the time for which reason
Ma. Socorro, not having more cash, drew out three checks. . . .

"In view of the foregoing the court is of the opinion that the crimes committed is that
punishable under P.D. 53Z (Anti-Piracy and Anti-Highway Robbery Law of 1974) under
which where robbery on the highway is accompanied by extortion the penalty is
reclusion perpetua." 18

The Solicitor General concurs, with the observation that pursuant to the repealing
clause in Section 5 of said decree, "P.D. No. 532 is a modification of the provisions of
the Revised Penal Code, particularly Article 267 which are inconsistent with it." 19
Such opinion and complementary submission consequently necessitate an evaluation
of the correct interplay between and the legal effects of Presidential Decree No. 532
on the pertinent provisions of the Revised Penal Code, on which matter we are not
aware that any definitive pronouncement has as yet been made.

Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not
a modification of Article 267 of the Revised Penal Code on kidnapping and serious
illegal detention, but of Articles 306 and 307 on brigandage. This is evident from the
fact that the relevant portion thereof which treats of "highway
robbery" invariably uses this term in the alternative and synonymously with
brigandage, that is, as "highway robbery/brigandage." This is but in line with our
previous ruling, and which still holds sway in criminal law, that highway robbers
(ladrones) and brigands are synonymous. 20

Harking back to the origin of our law on brigandage (bandolerismo) in order to put
our discussion thereon in the proper context and perspective, we find that a band of
brigands, also known as highwaymen or freebooters, is more than a gang of ordinary
robbers. Jurisprudence on the matter reveals that during the early part of the
American occupation of our country, roving bands were organized for robbery and
pillage and since the then existing law against robbery was inadequate to cope with
such moving bands of outlaws, the Brigandage Law was passed. 21

The following salient distinctions between brigandage and robbery are succinctly
explained in a treatise on the subject and are of continuing validity:

"The main object of the Brigandage Law is to prevent the formation of bands of
robbers. The heart of the offense consists in the formation of a band by more than
three armed persons for the purpose indicated in art 306. Such formation is sufficient
to constitute a violation of art. 306. It would not be necessary to show, in a
prosecution under it, that a member or members of the band actually committed
robbery or kidnapping or any other purpose attainable by violent means. The crime is
proven when the organization and purpose of the band are shown to be such as are
contemplated by art. 306. On the other hand, if robbery is committed by a band,
whose members were not primarily organized for the purpose of committing robbery
or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply
because robbery was committed by a band of more than three armed persons, it
would not follow that it was committed by a band of brigands. In the Spanish text of
art. 306, it is required that the band 'sala a los campos para dedicarse a robar.'" 22
(Italic ours.)

In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the
purpose is only a particular robbery, the crime is only robbery, or robbery in band if
there are at least four armed participants. 23 The martial law legislator, in creating
and promulgating Presidential Decree No. 532 for the objectives announced therein,
could not have been unaware of that distinction and is presumed to have adopted the
same, there being no indication to the contrary. This conclusion is buttressed by the
rule on contemporaneous construction, since it is one drawn from the time when and
the circumstances under which the decree to be construed originated.
Contemporaneous exposition or construction is the best and strongest in the law. 24

Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage
only acts of robbery perpetrated by outlaws indiscriminately against any person or
persons on Philippine highways as defined therein, and not acts of robbery
committed against only a predetermined or particular victim, is evident from the
preambular clauses thereof, to wit:

"WHEREAS, reports from law-enforcement agencies reveal that lawless elements are
still committing acts of depredation upon the persons and properties of innocent and
defenseless inhabitants who travel from one place to another, thereby disturbing the
peace, order and tranquility of the nation and stunting the economic and social
progress of the people;

"WHEREAS, such acts or depredations constitute . . . highway robbery/brigandage


which are among the highest forms of lawlessness condemned by the penal statutes
of all countries;

"WHEREAS, it is imperative that said lawless elements be discouraged from


perpetrating such acts of depredations by imposing heavy penalty on the offenders,
with the end in view of eliminating all obstacles to the economic, social, educational
and community progress of the people;" ( mphasis supplied.)

Indeed, it is hard to conceive of how a single act of robbery against a particular


person chosen by the accused as their specific victim could be considered as
committed on the "innocent and defenseless inhabitants who travel from one place
to another," and which single act of depredation would be capable of "stunting the
economic and social progress of the people" as to be considered "among the highest
forms of lawlessness condemned by the penal statutes of all countries," and would
accordingly constitute an obstacle "to the economic, social, educational and
community progress of the people," such that said isolated act would constitute the
highway robbery or brigandage contemplated and punished in said decree. This
would be an exaggeration bordering on the ridiculous.

True, Presidential Decree No 532 did introduce amendments to Articles 306 and 307
of the Revised Penal Code by increasing the penalties, albeit limiting its applicability
to the offenses stated therein when committed on the highways and without
prejudice to the liability for such acts if committed. Furthermore, the decree does not
require that there be at least four armed persons forming a band of robbers; and the
presumption in the Code that said accused are brigands if they use unlicensed
firearms no longer obtains under the decree. But, and this we broadly underline, the
essence of brigandage under the Code as a crime of depredation wherein the
unlawful acts are directed not only against specific, intended or preconceived victims,
but against any and all prospective victims anywhere on the highway and whosoever
they may potentially be, is the same as the concept of brigandage which is
maintained in Presidential Decree No. 532, in the same manner as it was under its
aforementioned precursor in the Code and, for that matter, under the old Brigandage
Law. 25

Erroneous advertence is nevertheless made by the court below to the fact that the
crime of robbery committed by appellants should be covered by the said amendatory
decree just because it was committed on a highway. Aside from what has already
been stressed regarding the absence of the requisite elements which thereby
necessarily puts the offense charged outside the purview and intendment of that
presidential issuance, it would be absurd to adopt a literal interpretation that any
unlawful taking of properly committed on our highways would be covered thereby. It
is an elementary rule of statutory construction that the spirit or intent of the law
should not be subordinated to the letter thereof. Trite as it may appear, we have
perforce to stress the elementary caveat that he who considers merely the letter of
an instrument goes but skin deep into its meaning, 26 and the fundamental rule that
criminal justice inclines in favor of the milder form of liability in case of doubt.

If the mere fact that the offense charged was committed on a highway would be the
determinant for the application of Presidential Decree No. 532, it would not be far-
fetched to expect mischievous, if not absurd, effects on the corpus of our substantive
criminal law. While we eschew resort to a reductio ad absurdum line of reasoning, we
apprehend that the aforestated theory adopted by the trial court falls far short of the
desideratum in the interpretation of laws, that is, to avoid absurdities and conflicts.
For, if a motor vehicle, either stationary or moving on a highway, is forcibly taken at
gunpoint by the accused who happened to take a fancy thereto, would the location of
the vehicle at` the time of the unlawful taking necessarily put the offense within the
ambit of Presidential Decree No. 532, thus rendering nugatory the categorical
provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario is one where
the subject matter of the unlawful asportation is large cattle which are incidentally
being herded along and traversing the same highway and are impulsively set upon
by the accused, should we apply Presidential Decree No. 532 and completely
disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974? 28

We do not entertain any doubt, therefore, that the coincidental fact that the robbery
in the present case was committed inside a car which, in the natural course of things,
was casually operating on a highway, is not within the situation envisaged by Section
2(e) of the decree in its definition of terms. Besides, that particular provision
precisely defines "highway robbery/brigandage" and, as we have amply
demonstrated, the single act of robbery conceived and committed by appellants in
this case does not constitute highway robbery or brigandage.

Accordingly, we hold that the offense committed by appellants is simple robbery


defined in Article 293 and punished under Paragraph 5 of Article 294 of the Revised
Penal Code with prision correccional in its maximum period to prision mayor in its
medium period. Appellants have indisputably acted in conspiracy as shown by their
concerted acts evidentiary of a unity of thought and community of purpose. In the
determination of their respective liabilities, the aggravating circumstances of craft
29 shall be appreciated against both appellants and that of abuse of confidence shall
be further applied against appellant Puno, with no mitigating circumstance in favor of
either of them. At any rate, the intimidation having been made with the use of a
firearm, the penalty shall be imposed in the maximum period as decreed by Article
295 of the Code.
We further hold that there is no procedural obstacle to the conviction of appellants of
the crime of simple robbery upon an information charging them with kidnapping for
ransom, since the former offense which has been proved is necessarily included in
the latter offense with which they are charged. 30 For the former offense, it is
sufficient that the elements of unlawful taking, with intent to gain, of personal
property through intimidation of the owner or possessor thereof shall be, as it has
been, proved in the case at bar. Intent to gain (animus lucrandi) is presumed to be
alleged in an information where it is charged that there was unlawful taking
(apoderamiento) and appropriation by the offender of the things subject of the
robbery. 31

These foregoing elements are necessarily included in the information filed against
appellants which, as formulated, allege that they wilfully, unlawfully and feloniously
kidnapped and extorted ransom from the complainant. Such allegations, if not
expressly but at the very least by necessary implication, clearly convey that the
taking of complainant's money and checks (inaccurately termed as ransom) was
unlawful, with intent to gain, and through intimidation. It cannot be logically argued
that such a charge of kidnapping for ransom does not include but could negate the
presence of any of the elements of robbery through intimidation of persons. 32

WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and
another one is rendered CONVICTING accused-appellants Isabelo Puno y Guevarra
and Enrique Amurao y Puno of robbery as punished in Paragraph 5 of Article 294, in
relation to Article 295, of the Revised Penal Code and IMPOSING on each of them an
indeterminate sentence of four (4) years and two (2) months of prision correccional,
as minimum, to ten (10) years of prision mayor, as maximum, and to jointly and
severally pay the offended party, Maria del Socorro M. Sarmiento, the amounts of
P7,000.00 as actual damages and P20,000.00 as moral damages, with costs.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONNIE AGOMO-O,


accused, EDDY PANEZA and OSCAR SERVANDO, accused-appellants.2000
June 232nd DivisionG.R. No. 131829

MENDOZA, J.:

This is an appeal from a decision 1 [Per Judge Tito G. Gustilo] of the Regional Trial
Court, Branch 23, Iloilo City, finding accused-appellants Eddy Paneza and Oscar
Servando, together with accused Ronnie Agomo-o, 2 [Also referred to as Ronie
Agomo-o in the records.] guilty of highway robbery under P.D. No. 532, and
sentencing them to suffer the penalty of reclusion perpetua and to indemnify the
heirs of the victim, Rodito Lasap, in the amount of P50,000.00.

The information 3 [Records, p. 1.] against accused-appellants and their co-accused


Ronnie Agomo-o charged -

That on or about the 22nd day of September, 1993, along the national highway, in
the Municipality of San Enrique, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring
confederating and mutually helping one another, armed with a pistolized homemade
shotgun and bladed weapons announced a hold-up when the passenger jeepney
driven by Rodito Lasap reached Barangay Mapili, San Enrique, Iloilo, and by means of
violence against or intimidation, did then and there willfully, unlawfully and
feloniously, with intent to gain, take steal and carry away cash money, in the amount
of FIFTY PESOS (P50.00), Philippine Currency and a wrist watch with a value of THREE
THOUSAND PESOS (P3,000.00) both belonging to JOSE AMADOR, another amount of
ONE HUNDRED THIRTY PESOS (P130.00) belonging to FREDDIE AGRABIO, and the
amount of TWO HUNDRED PESOS (P200.00) belonging to the driver, RODITO LASAP,
with a total value of THREE THOUSAND THREE HUNDRED EIGHTY PESOS (P3,380.00),
Philippine Currency, to the damage and prejudice of the aforesaid persons and on the
occasion of said robbery, the accused, with intent to kill shot the driver RODITO
LASAP, with the firearms they were provided at that time which resulted [in] the
death of Rodito Lasap and with deliberate intent to kill likewise stab one FREDDIE
AGRABIO with a bladed weapon they were provided thus hitting him on the left
elbow, thus commencing the commission of homicide directly by overt acts but did
not perform all the acts of execution which would produce the felony by reason of
some cause or accident other than their own spontaneous desistance.

The prosecution evidence showed that, on September 22, 1993, at around 7:30 in the
evening, a passenger jeepney driven by Rodito Lasap en route to Passi, after coming
from Sitio Gomez, Barangay Abaca, San Enrique, Iloilo, was stopped by three men,
among them was the accused in this case, Ronnie Agomo-o, who, armed with a gun,
announced a hold-up and ordered the driver to turn off the engine. After Lasap
obeyed, Ronnie Agomo-o shot him just the same.4 [TSN, pp. 4-7, May 3, 1994.] That
same night, Rodito Lasap died as a result of multiple gunshot wounds.5 [Exh. J.] A
passenger, Freddie Agrabio, who was seated beside the driver, transferred, out of
fright, to the rear portion of the jeep. He was then told to lie face down on the floor
of the vehicle. Afterwards, he was asked to hand in his wallet containing P130.00 to
one of the robbers. The accused then ordered the passengers to alight from the
jeepney and keep their hands up. As they were doing so, accused-appellant Paneza
stabbed Agrabio, hitting him on the left elbow. Agrabio ran from the scene.6 [TSN,
pp. 7-10, May 3, 1994.]

Another passenger of the jeepney was Jose Amador. He saw the three accused
coming from the sugarcane field at Barangay Mapili. The three stopped the
passenger jeepney. Eddy Paneza took Amador’s wallet containing P50.00 as well as
his wrist watch, all the while pointing a "pinote" at him. He thought it was Oscar
Servando who stabbed Freddie Agrabio. When Agrabio ran, Amador also ran.7 [TSN,
pp. 4-8, Oct. 5, 1994.] Amador said that he was seated behind the driver and was
thus able to see the accused as the moon was bright and there was light coming from
the jeepney.8 [Id., pp. 12-14.]

SPO1 Joely Lasap and his companions received a report of the hold-up. Some of
them went to Barangay Mapili to respond to the report of the incident. At around four
o’clock in the morning of the following day, SPO1 Lasap and his companions found
three empty shells of a 12-gauge shotgun.9 [TSN, pp. 12-13, July 18, 1994.] SPO1
Lasap is a first cousin of the victim Rodito Lasap.10 [TSN, p. 5, Aug. 10, 1994.]

Dr. Jason Palomado of the Passi District Hospital treated Freddie Agrabio for a wound
on his left elbow. The wound was two centimeters in length and two centimeters in
depth. Agrabio was discharged from the hospital the following morning.11 [TSN, pp.
4-5, June 20, 1994.] Dr. Palomado issued a medical certificate12 [Exh. A.] stating that
Agrabio needed treatment for a period of 9 to 30 days.

On September 28, 1993, Jocelyn Agomo-o went to the San Enrique Police Station and
turned over a wrist watch allegedly taken during the hold-up. The watch was
eventually returned to its owner, Jose Amador.13 [TSN, p. 7, Sept. 7, 1994; TSN, p.
20, Oct. 5, 1994.] The defense of the accused was alibi. Ronnie Agomo-o claimed
that he was at the Provincial Hospital with his mother from September 21 to
September 23, 1993 to watch over his sick brother.14 [TSN, pp. 6-8, Dec. 16, 1994.]
Accused-appellant Eddy Paneza said he was in his aunt’s house in Rizal, Palapala,
Iloilo in the morning of September 22, 1993 and that, at around 10 o’clock, he
accompanied his aunt, Teresa Escultero, to Brgy. Madarag, San Enrique, arriving there
at three o’clock in the afternoon. They went there to talk with the family of the
prospective husband of his aunt’s daughter. Eddy Paneza slept in the groom’s house
and proceeded to Barangay Bawatan the following morning.15 [TSN, pp. 3-6, May 15,
1995.] Teresa Escultero corroborated Eddy Paneza’s testimony.16 [See TSN, pp. 2-6,
March 14, 1995.] Lastly, Ma. Elena Servando, sister-in-law of Oscar Servando,
testified that on September 22, 1993, accused-appellant Oscar Servando
accompanied her to Sitio Baclayan, San Enrique to gather corn. They went back
home at around six o’clock in the evening. They removed the corn ears from the cob
and finished doing so at 11 o’clock that evening. The following morning, they dried
the corn until the afternoon.17 [TSN, pp. 3-6, Sept. 6, 1995.]

The lower court then rendered a decision on February 5, 1997 finding the accused
guilty. The dispositive portion of its decision states:

WHEREFORE, premises considered, judgment is hereby rendered finding accused


Ronnie Agomo-o, Eddy Paneza and Oscar Servando GUILTY beyond reasonable doubt
of violating the provisions of Section 3, Paragraph (b) of Presidential Decree No. 532,
otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974,
particularly the last portion thereof, and sentences them to suffer a penalty of
imprisonment of Reclusion Perpetua, and to pay the heirs of Rodito Lasap civil
indemnity in the amount of P50,000.00.

The accused Ronnie Agomo-o, Eddy Paneza and Oscar Servando who are presently
detained are entitled to be credited in full with the entire period of their preventive
detention.

SO ORDERED.18 [RTC Decision, pp. 7-8; Records, pp. 303-304.]

It is from this judgment that Paneza and Servando appealed. Ronnie Agomo-o did not
appeal. Accused-appellants contend:

I. THE TRIAL COURT ERRED IN FINDING ALL THE ACCUSED RONNIE AGOMO-O, EDDY
PANEZA and OSCAR SERVANDO GUILTY BEYOND REASONABLE DOUBT OF VIOLATING
THE PROVISIONS OF SECTION 3, PARAGRAPH (b) OF PRESIDENTIAL DECREE NO. 532,
OTHERWISE KNOWN AS THE ANTI-PIRACY AND ANTI-ROBBERY LAW OF 1974, IN SPITE
OF THE FACT THAT THERE WAS NO PROOF OF CONSPIRACY.

II. THE TRIAL COURT FURTHER ERRED IN IMPOSING A PENALTY OF IMPRISONMENT OF


RECLUSION PERPETUA TO ALL THE ACCUSED AND TO PAY THE HEIRS OF RODITO
LASAP CIVIL INDEMNITY IN THE AMOUNT OF P50,000.00.

III.THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT OSCAR


SERVANDO IN SPITE OF THE ABSENCE OF PROOF AS TO HIS PARTICIPATION.

We find the appeal to be without merit.

First. Accused-appellants claim that the testimony of Freddie Agrabio was incredible
and highly improbable. They contend that Agrabio could not have been beside the
driver when the latter was shot; otherwise, he, too, would have been injured
considering his proximity to the driver.19 [Brief for the Accused-Appellants, p. 10;
Rollo, p. 62.] That Freddie Agrabio could also have been hit is sheer speculation and
conjecture and, therefore, not a valid argument against the veracity of his testimony.
Freddie Agrabio could not have been hit because Rodito Lasap was shot at close
range.20 [TSN, p. 17, May 3, 1994.] The latter was shot on the chest,21 [Id., p. 18.]
hence, the scattered pellets only hit that area. Moreover, Freddie Agrabio was the
only one seated in front of the jeepney beside the driver.22 [Id., p. 20.] Under such
circumstances, the passenger could have moved away from the driver. He may have
been seated next to the driver but not close enough to be within the range of the
shotgun.

The trial court correctly relied on the positive identification of the accused made by
Freddie Agrabio and Jose Amador. No reason has been advanced why the testimonies
of these witnesses should not be believed. Hence, the trial court’s evaluation of the
witnesses’ testimonies must be accorded great respect since it had the opportunity
to observe and examine the witnesses’ conduct and demeanor on the witness
stand.23 [People v. Sala, G.R. No. 76340-41, July 28, 1999.]

On direct examination, Freddie Agrabio testified as follows:

Q. Mr. Freddie Agrabio, on September 22, 1993, around 7:30 in the evening, more or
less, could you remember where were you?
A. Yes, sir.

Q. Where were you?


A. I was sitting in the front seat of the jeepney.

Q. Why were you there?


A. I was going to town.

Q. Of what town?
A. Passi.

Q. Where did you come from?


A. From Sitio Gomez.

Q. What municipality?
A. Sitio Gomez, Brgy. Abaca, San Enrique, Iloilo.

Q. While riding on the said jeepney, could you remember if any incident that
happened?
A. When we arrived at the crossing Ronie Agomo-o appeared bringing with him a
firearm.

Q. Could you remember what crossing was that?


A. Crossing [Barangay] Mapili.

Q. Of what municipality is Brgy. Mapili?


A. San Enrique.

Q. Was Ronie Agomo-o alone?


A. There were three of them.

Q. Could you remember who were his other companions?


A. Eddy Paneza and Servando.
Q. By the way, do you know the full [name] of this certain Servando?
A. I just knew him as Servando.

Q. Why do you know this Ronie Agomo-o?


A. Because he often drive a jeep and we often pass that place.

Q. If Ronie Agomo-o is inside the courtroom, could you point out where is he?
A. Yes, sir.

Q. Point to him?
A. He is there. (witness pointing to man seated on the accused bench who when
asked [identified himself] as Ronie Agomo-o.)

Q. How about this Eddy Paneza, could you point out where is he in this Court?
A. Yes, sir, he is also there. (witness pointing to another seated on the accused
bench who when asked identified himself as Eddy Paneza)

Q. How about a certain Servando you mentioned?


A. He is there. (witness again pointing to another man situated on the accused
bench and when asked his name identified himself as Oscar Servando)

Q. After you saw this Ronie Agomo-o appeared with a shotgun and declared hold-up,
what happened further?
A. He instructed the driver Rodito Lasap to turn off the engine of the jeep and upon
instructing Rodito he shot Rodito Lasap.

Q. Was Rodito Lasap hit by Ronie Agomo-o?


A. Yes, sir.

Q. And what happened further?


A. Then I transferred to the back portion of the jeep at the passengers area.

Q. After you transferred at the back portion of the passenger jeep, what did the three
(3) outlaws do, if any?
A. They told us to give our money to them and not to do anything bad.

COURT

Q. Who ordered the passengers to turn over their money?


A. The three (3) of them, Your Honor.

....

Q. After the three (3) accused in this case ordered you and your companions to give
your money, did you follow their order?
A. Yes, sir, I gave to them my wallet.

Q. Was your wallet empty at the time you gave them to the holdupper?
A. There was. The money inside was P130.00.

COURT

Q. To whom did you give your wallet?


A. I really don’t know to whom I gave because I was facing down when I gave my
wallet.
Q. Why did you lie down?
A. They told me.

Q. What did they tell you?


A. They told me not to do anything bad.

COURT

Proceed.

PROSECUTOR

Q. After you gave your wallet to the holdupper, what happened further, if any?
A. They instructed us to alight from the jeep and kept our hands up.

Q. And what happened further?


A. And then Eddy Paneza stabbed me.

Q. Were you hit?


A. Yes, sir.

COURT

Q. Where?
A. Here, Your Honor. (witness pointing his left elbow)

Q. How many times did Eddy Paneza stab you?


A. Once. After he stabbed me I ran away.

Q. Were you injured?


A. Yes, Your Honor. (witness showing to the Bench his left elbow with a scar)

....

COURT

Proceed.

PROSECUTOR

Q. You said that Eddy Paneza, one of the accused in this case stabbed you. Were you
able to have your wound treated?
A. Yes, sir.

....

COURT

Q. In what hospital were you treated?


A. At Passi.

....

PROSECUTOR
Q. After Eddy Paneza stabbed you, what happened?
A. We scampered away and when I turned my back I saw Jose Amador following me.

Q. Was Jose Amador one of the passengers in the said jeepney?


A. Yes, sir.24 [TSN, pp. 4-12, May 3, 1994.]

Freddie Agrabio was steadfast in his testimony despite rigorous cross-examination by


defense counsel. He further testified:

CROSS EXAMINATION

BY ATTY. ACEBUQUE

Q. You said you were sitting on the front seat when this Ronie Agomo-o appeared
from the sugarcane plantation, is that correct?
A. Yes, sir.

Q. And immediately after Ronie Agomo-o appeared from the sugarcane plantation, he
shouted hold-up, is that correct?
A. Yes, sir.

Q. And you were still on the front seat of the passenger jeep at the time when he
announced there was hold-up, is that correct?
A. I was beside the driver, at the right.

Q. You mean to tell this Honorable Court that immediately he shouted hold-up, he
shot the driver, is that correct?
A. Yes, sir.

Q. And at the time you were near the driver?


A. Yes, sir.

Q. You said that Ronie [Agomo-o] used a pistolized homemade shotgun, is that
correct?
A. I cannot identify what kind of firearm because it was dark.

Q. Are you sure of that, Mr. Witness?


A. Yes, sir.

....

WITNESS

A. I am sure that the firearm is a pistolized homemade shotgun.

ATTY. ACEBUQUE

Q. When Ronie Agomo-o shot the driver Rodito Lasap, how far were you then sitting
on the front seat with the Rodito Lasap?
A. We were side by side.

Q. And you saw at the time Ronie Agomo-o shot Rodito Lasap, is that correct?
A. Yes, sir.
Q. Where was Ronie Agomo-o at the time when he shot Rodito Lasap?
A. He was at the left side of the driver.

COURT

Q. How far was Ronie Agomo-o from Rodito Lasap when he shot the latter?
A. About one arm’s length.

Q. You saw the accused pointed that shotgun to Rodito Lasap?


A. Yes, Your Honor.

Q. When you saw Ronie Agomo-o pointed that firearm to the driver, Rodito Lasap,
could you tell this Court what was the distance of the tip of the barrel of the shotgun
to the body of Rodito Lasap?
A. The tip of the barrel is about six (6) to seven (7) inches.

COURT

From the body of Rodito Lasap. Proceed.

ATTY. ACEBUQUE

Q. In what particular part of the body of Rodito Lasap did Ronie Agomo-o pointed the
shotgun?
A. Middle of his breast.

Q. And you were situated beside Rodito Lasap, is that correct?

Q. You did not hide when Ronie Agomo-o pointed the shotgun to Rodito Lasap?
A. I was not able to move.

Q. You mean to tell this Honorable Court when the firearm was fired, you were still
beside Rodito Lasap, is that correct?
A. When the firearm was fire[d] I was still beside Rodito Lasap.

Q. And despite the burst of the shotgun you were not injured by that particular burst?
A. I was not hit.

Q. The only injury which you suffered at the time was the stab wound which Eddy
Paneza inflicted upon your person, is that correct?
A. Yes, sir.

COURT

Q. What happened to Rodito Lasap when he was shot by Ronie Agomo-o?


A. He laid down in the front seat.

COURT

Proceed.

ATTY. ACEBUQUE

Q. How about you after the shot, what did you do?
A. I transferred to the back portion of the jeep.
Q. You mean to tell this Honorable Court you went down from the front seat then you
transferred to the back portion of the jeep?
A. No, sir, I just climbed at the back.

Q. At the time of the incident, how many persons were sitting at the front seat
excluding the driver?
A. There were three (3) of us.

Q. Who were your companions, could you remember?


A. Joey and Junior.

Q. And this Joey and Junior were still sitting at the front seat when Ronie Agomo-o
shot Rodito Lasap together with you?
A. No sir, they were not there anymore. They alighted one by one.

....

Q. When you transferred at the back portion passing through the front seat back,
were Joey and Junior whom you mentioned a while ago still in the front seat?
A. They were not there anymore. Only Rodito Lasap was there.

Q. You testified that your were divested the amount of P130.00. Who divested you of
that amount?
A. I cannot tell which one of them because I was facing down.

Q. So you were not sure who divested you of the amount of P130.00?
A. I am not sure. I could not determine who took the money.

Q. When for the first time were you able to identify the accused, the three (3)
accused here?
A. I identified Ronie Agomo-o because I saw him come out from the sugarcane
plantation.

Q. When for the first time you come to know the name of Ronie Agomo-o?
A. For long time already.

COURT

Q. How long before the incident on September 22, 1993 did you come to personally
know Ronie Agomo-o?
A. About five (5) years.

....

ATTY. ACEBUQUE

Q. You said you were confined at the Passi District Hospital for two (2) days, is that
correct?
A. Yes, [s]ir.

Q. Immediately upon confinement at the Passi District Hospital, were there policemen
who came to the hospital and investigated about the incident?
A. Joely Lasap came to me.
Q. What is his relation to Rodito Lasap?
A. They are first cousins. Joely Lasap is a policeman of San Enrique.

Q. And this Pat. Lasap investigated you at the said hospital, is that correct?
A. Yes, sir.

Q. When he investigated you, were you able to identify the three accused
immediately?
A. Yes, sir.

....

COURT

Q. You said awhile ago you came to know Ronie Agomo-o for the last five (5) years.
How about Eddy Paneza, when for first time have you come to know him personally?
A. I already know them, Your Honor.

....

Q. How about Oscar Servando, for how long have you known him?
A. The same year.

Q. You know Oscar Servando for the last five (5) years yet you were not able to know
what was his first name?
A. Because I forgot since my house is far away.

....

ATTY. ACEBUQUE

Q. When you first knew the three (3) accused for the last five (5) years, have you
ever met them before the incident of September 22, 1993?
A. Yes, sir.

Q. How many times have you met the three (3) accused before the incident?
A. Many times.25 [Id., pp. 12-25.]

Jose Amador corroborated Agrabio’s testimony as to what transpired in the evening


of September 22, 1993. He testified:

Q. On September 22, 1993 in the evening, where were you?


A. I was inside the jeep.

Q. Why were you there?


A. I am intending to go to Passi.

Q. Could you remember the name of the driver of that particular jeep where you were
riding on that particular time?
A. Yes, sir. The name is Rodito Lasap.

Q. Could you likewise remember some of your co-passengers on that particular time?
A .There others I could remember but the others I could not.

Q. And at what particular time was that?


A . 7:30 o’clock.

Q. While the jeep where you were riding was on its way to Passi, could you remember
if there was an unusual incident that happened?
A. When we were about to cross at the crossing of Brgy. Mapili within the municipality
of San Enrique going to Banate, three persons came out from the camp.

COURT:

Q. What kind of camp was that?


A. The [t]hree persons came out from the sugarcane field.

Q. And what did they do?


A. And they pointed a gun saying “This is hold-up.”

PROSECUTOR:

Q. How many were holding a gun?


A. One.

Q. Could you remember the person who was holding the gun on that particular time?
A. Yes, sir I could recall.

Q. Who was he?


A. Ronie Agomo-o.

Q. If Ronie Agomo-o is inside the Court, could you point out where is he?
A. Yes, sir.

INTERPRETER:

(Witness pointing to a person and when asked of his name answered Ronie Agomo-o).

PROSECUTOR:

Q. How about his companions, could you remember them?


A. I could identify them when the police pointed them to me but during the incident I
don’t know them.

Q. Could you name the names of the two other companions?


A. Servando and Paneza.

Q. If these other two companions of Ronie Agomo-o are inside the Court, could you
point out where are they now?
A. Yes, sir.

Q. Point to them.

INTERPRETER:

(The witness pointed to a man sitting on the right side of the bench, who, when asked
of his name answered Paneza and at the left side answered Servando.)

PROSECUTOR:
Q. Now after Ronie Agomo-o and his companions came out of the sugarcane field and
pointed out his gun, what happened further, if any?
A. Paneza took away P50.00 and he also got my wrist watch.

Q. When Paneza took your wrist watch, was it with your consent or not?
A. Why should I not consent because he was holding a pinote.

Q. If that wrist watch be shown to you, could you still remember that wrist watch?
A. Yes, sir. It is my watch.

Q. Showing to you this wrist watch, how is this related to the one you are referring to?
A. This is the one. There is a name de luxe.

....

Q. Before Paneza took your money and your watch, what did Ronie Agomo-o and his
other companions were doing at that time?
A. They told me to get down the jeep.

Q. How about the driver, what was he doing at that time?


A. He lay down on the chair of the jeep.

Q. Do you know why he lay down the jeep?


A. Because he lost consciousness for he was shot at the chest.

COURT:

Q. Shot by whom?
A. Ronie Agomo-o shot the driver.

PROSECUTOR:

Q. Which happened first, the shooting of Rodito Lasap by Ronie Agomo-o or the
taking of your watch by Paneza?
A. The shooting of the driver was ahead of the taking of my watch.

Q. Then upon taking your watch, what did you do?


A. They told me to go down from the jeep.

Q. Did you go down from the jeep?


A. Yes, sir.

Q. Then after that?


A. Servando frisked my waist and then he stabbed Freddie.

Q. That Freddie, you refer to the person of Freddie Agrabio?


A. Yes, sir because he was following me.

Q. Then what happened further, if any?


A. No more because Freddie ran away and I also followed Freddie.26 [TSN, pp. 4-9,
Oct. 5, 1994.]

As will be noted, the testimonies of Agrabio and Amador did not fit each other in
every detail. For example, while Agrabio identified Eddy Paneza as the person who
stabbed him,27 [TSN, p. 9, May 3, 1993.] Jose Amador said it was Oscar Servando.28
[TSN, p. 8, Oct. 5, 1994.] Freddie Agrabio was also confused about the type of firearm
Ronnie Agomo-o used, whether it was a pistolized homemade shotgun or something
else.29 [TSN, pp. 13-15, May 3, 1994.] Such discrepancies, however, in the
testimonies of the witnesses do not detract from their truthfulness. These apparent
inconsistencies may be attributed more from an honest mistake due to fleeting
memory than from a deliberate intent to prevaricate. Instead of detracting from the
truthfulness of the testimonies, the inconsistencies reinforce the witnesses’
credibility.30 [People v. Bautista, G.R. No. 117685, June 21, 1999.] What is important
is that the testimonies of these witnesses corroborated each other in material points,
to wit: (a) that the passenger jeepney they were riding on was stopped on the
crossing to Barangay Mapili, San Enrique by an armed man in the person of Ronnie
Agomo-o, accompanied by accused-appellants Eddy Paneza and Oscar Servando; (b)
that after announcing a hold-up, Ronnie Agomo-o shot Rodito Lasap, the driver of the
passenger jeepney; and, (c) that the accused then divested the passengers of their
money and other valuables.

It is settled that so long as the witnesses’ testimonies agree on substantial matters,


the inconsequential inconsistencies and contradictions dilute neither the witnesses’
credibility nor the verity of their testimonies. As this Court has held:

In sum, the inconsistencies referred to by the defense are inconsequential. The


points that mattered most in the eyewitnesses’ testimonies were their presence at
the locus criminis, their identification of the accused-appellant as the perpetrator of
the crime and their credible and corroborated narration of accused-appellant’s
manner of shooting Crisanto Suarez. To reiterate, inconsistencies in the testimonies
of witnesses that refer to insignificant details do not destroy their credibility. Such
minor inconsistencies even manifest truthfulness and candor erasing any suspicion of
a rehearsed testimony.31 [People v. Biñas, G.R. No. 121630, Dec. 8, 1999.]

In contrast to the clear and positive identification of Freddie Agrabio and Jose
Amador, accused-appellants gave nothing but alibi and denial. They gave only self-
serving testimonies, corroborated only by the testimonies of their relatives. As we
have held, "[a]libi becomes less plausible when it is corroborated by relatives and
friends who may then not be impartial witnesses."32 [People v. Araneta, 300 SCRA
80, 95 (1998).] Alibi is an inherently weak defense and must be rejected when the
accused’s identity is satisfactorily and categorically established by the eyewitnesses
to the offense,33 [People v. Grefaldia, 298 SCRA 337 (1998).] especially when such
eyewitnesses have no ill motive to testify falsely.34 [People v. Araneta, supra.] In the
case at bar, the defense failed to show that Freddie Agrabio and Jose Amador were
motivated by ill will.

Furthermore, accused-appellants’ defense of alibi and denial cannot be believed as


they themselves admitted their proximity to the scene of the crime when the offense
occurred. Eddy Paneza testified that, at the time of the incident, he was in Barangay
Madarag, a town within the municipality of San Enrique35 [TSN, p. 5, May 15, 1995.]
where the robbery took place. On the other hand, Ma. Elena Servando testified that
Oscar Servando went with her to gather corn in Sitio Baclayan which is also in the
municipality of San Enrique.36 [TSN, p. 4, Sept. 6, 1995.]

For the defense of alibi to prosper, the following must be established: (a) the
presence of the accused-appellant in another place at the time of the commission of
the offense; and, (b) physical impossibility for him to be at the scene of the crime.37
[People v. Sumalde, et al., G.R. No. 121780, March 17, 2000.] These requisites were
not fulfilled in this case. Considering that accused-appellants themselves admitted
that they were in the same municipality as the place where the offense occurred, it
cannot be said that it was physically impossible for them to have committed the
crime. On the contrary, they were in the immediate vicinity of the area where the
robbery took place. Thus, their defense of alibi cannot prosper.

Second. Accused-appellants contend that there can be no finding of conspiracy


against them because the prosecution failed to establish their participation in the
killing of Rodito Lasap.38 [Brief for the Accused-Appellants, p. 13; Rollo, p. 65.]

This argument is without merit. Conspiracy exists when two or more persons come
to an agreement concerning the commission of a felony and decide to commit it. It
may be inferred from the acts of the accused indicating a common purpose, a
concert of action, or community of interest.39 [People v. Macahia, 307 SCRA 404
(1999).] That there was conspiracy in the case at bar is supported by the evidence on
record. Freddie Agrabio testified that after shooting the driver, the accused ordered
the passengers to give their money and valuables.40 [TSN, p. 7, May 3, 1994.]
Although Freddie Agrabio could not specify who among the three divested him of his
wallet because he was lying face down on the floor of the jeepney,41 [Id., p. 8.] it is
clear that accused-appellants took part in the robbery. Accused-appellant Paneza did
not only take valuables from the passengers but also stabbed Freddie Agrabio, hitting
the latter on the left elbow.42 [Id., p. 9.] Jose Amador identified both accused-
appellants Eddy Paneza as the one who took his wrist watch and wallet while
simultaneously pointing a "pinote" at him,43 [TSN, p. 7, Oct. 5, 1994.] and Servando
as the one who frisked his waist as he was alighting from the jeepney.44 [Id., p. 8.]
Clearly, therefore, accused-appellants cooperated with one another in order to
achieve their purpose of robbing the driver and his passengers. "[F]or collective
responsibility to be established, it is not necessary that conspiracy be proved by
direct evidence of a prior agreement to commit a crime. It is sufficient that at the
time of the commission of the offense, all the accused acted in concert showing that
they had the same purpose or common design or that they were united in its
execution.:"45 [People v. Durado, G.R. No. 121669, Dec. 23, 1999.]

While only Ronnie Agomo-o shot and killed Rodito Lasap, accused-appellants cannot
be exonerated. When conspiracy is established, all who carried out the plan and who
personally took part in its execution are equally liable.46 [People v. Andales, G.R. No.
130637, Aug. 19, 1999.] Accused-appellants must both also be held responsible for
the death of Rodito Lasap.

Third. Accused-appellants further assert that they cannot be convicted of highway


robbery as the crime was not committed by at least four persons, as required in
Article 306 of the Revised Penal Code. However, highway robbery is now governed
by P.D. No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of
1974. This law provides:

Sec. 2. (e). Highway Robbery/Brigandage.¾ The seizure of any person for ransom,
extortion or other unlawful purposes, or the taking away of the property of another
by means of violence against or intimidation of person or force upon things or other
unlawful means, committed by any person on any Philippine Highway.

In the case of People v. Puno,47 [219 SCRA 85 (1993).] it was held that P.D. No. 532
amended Art. 306 of the Revised Penal Code and that it is no longer required that
there be at least four armed persons forming a band of robbers.48 [Ibid.] The number
of offenders is no longer an essential element of the crime of highway robbery.49
[People v. Mendoza, 254 SCRA 61 (1996).] Hence, the fact that there were only three
identified perpetrators is of no moment. P.D. No. 532 only requires proof that persons
were organized for the purpose of committing highway robbery indiscriminately.50
[People v. Versoza, 294 SCRA 466 (1998).]" The robbery must be directed not only
against specific, intended or preconceived victims, but against any and all
prospective victims." 51 [People v. Cerbito, G.R. No. 126397, Feb. 1, 2000.] In this
case, the accused, intending to commit robbery, waited at the Barangay Mapili
crossing for any vehicle that would happen to travel along that road. The driver
Rodito Lasap and his passengers were not predetermined targets. Rather, they
became the accused’s victims because they happened to be traveling at the time
when the accused were there. There was, thus, randomness in the selection of the
victims, or the act of committing robbery indiscriminately, which differentiates this
case from that of a simple robbery with homicide.

Sec. 3(b) of the law provides:

The penalty of reclusión temporal in its minimum period shall be imposed. If physical
injuries or other crimes are committed during or on the occasion of the commission of
robbery or brigandage, the penalty of reclusión temporal in its medium and
maximum periods shall be imposed. If kidnapping for ransom or extortion or murder
or homicide, or rape is committed as a result or on the occasion thereof, the penalty
of death shall be imposed.52 [Emphasis added.]

Since a homicide occurred during the commission of the highway robbery, the
appropriate penalty to be imposed on accused-appellants would have been death.
However, the crime was committed on September 22, 1993 when the imposition of
the death penalty was suspended by the 1987 Constitution. Hence, the penalty next
lower in degree, or reclusion perpetua, was correctly imposed by the trial court on
accused-appellants Paneza and Servando.

In accordance with our recent rulings,53 [People v. Sumalde, supra. See also People v.
Cerbito, supra.] the trial court correctly awarded P50,000.00 as civil indemnity in
favor of the heirs of Rodito Lasap.

WHEREFORE, the decision of the Regional Trial Court, Branch 23, Iloilo City is
AFFIRMED.

SO ORDERED.

JEWEL VILLACORTA, assisted by her husband, GUERRERO VILLACORTA,


petitioner, vs. THE INSURANCE COMMISSION and EMPIRE INSURANCE
COMPANY, respondents.1980 October 281st DivisionG.R. No. L-54171D E C I
SION

TEEHANKEE, Acting C.J.:

The Court sets aside respondent Insurance Commission's dismissal of petitioner's


complaint and holds that where the insured's car is wrongfully taken without the
insured's consent from the car service and repair shop to whom it had been entrusted
for check-up and repairs (assuming that such taking was for a joy ride, in the course
of which it was totally smashed in an accident), respondent insurer is liable and must
pay insured for the total loss of the insured vehicle under the theft clause of the
policy.

The undisputed facts of the case as found in the appealed decision of April 14, 1980
of respondent insurance commission are as follows:

"Complainant (petitioner) was the owner of a Colt Lancer, Model 1976, insured with
respondent company under Private Car Policy No. MBI/PC-0704 for P35,000.00 - Own
Damage; P30,000.00 - Theft; and P30,000.00 - Third Party Liability, effective May 16,
1977 to May 16, 1978. On May 9, 1978, the vehicle was brought to the Sunday
Machine Works, Inc., for general check-up and repairs. On May 11, 1978, while it was
in the custody of the Sunday Machine Works, the car was allegedly taken by six (6)
persons and driven out to Montalban, Rizal. While travelling along Mabini St., Sitio
Palyasan, Barrio Burgos, going North at Montalban, Rizal, the car figured in an
accident, hitting and bumping a gravel and sand truck parked at the right side of the
road going south. As a consequence, the gravel and sand truck veered to the right
side of the pavement going south and the car veered to the right side of the
pavement going north. The driver, Benito Mabasa, and one of the passengers died
and the other four sustained physical injuries. The car, as well, suffered extensive
damage. Complainant, thereafter, filed a claim for total loss with the respondent
company hut claim was denied. Hence, complainant was compelled to institute the
present action."

The comprehensive motor car insurance policy for P35,000.00 issued by respondent
Empire Insurance Company admittedly undertook to indemnify the petitioner-insured
against loss or damage to the car (a) by accidental collision or overturning, or
collision or overturning consequent upon mechanical breakdown or consequent upon
wear and tear; (b) by fire, external explosion, self-ignition or lightning or burglary,
housebreaking or theft; and (c) by malicious act.

Respondent insurance commission, however, dismissed petitioner's complaint for


recovery of the total loss of the vehicle against private respondent, sustaining
respondent insurer's contention that the accident did not fall within the provisions of
the policy either for the Own Damage or Theft coverage, invoking the policy provision
on "Authorized Driver" clause.

1
Respondent commission upheld private respondent's contention on the "Authorized
Driver" clause in this wise: "It must be observed that under the above-quoted
provisions, the policy limits the use of the insured vehicle to two (2) persons only,
namely: the insured himself or any person on his (insured's) permission. Under the
second category, it is to be noted that the words "any person' is qualified by the
phrase ". . . on the insured's order or with his permission.' It is therefore clear that if
the person driving is other than the insured, he must have been duly authorized by
the insured, to drive the vehicle to make the Insurance company liable for the
driver's negligence. Complainant admitted that she did not know the person who
drove her vehicle at the time of the accident, much less consented to the use of the
same (par. 5 of the complaint). Her husband likewise admitted that he neither knew
this driver Benito Mabasa (Exhibit '4'). With these declarations of complainant and
her husband, we hold that the person who drove the vehicle, in the person of Benito
Mabasa, is not an authorized driver of the complainant. Apparently, this is a violation
of the 'Authorized Driver' clause of the policy."

Respondent commission likewise upheld private respondent's assertion that the car
was not stolen and therefore not covered by the Theft clause, ruling that "(T)he
element of 'taking' in Article 308 of the Revised Penal Code means that the act of
depriving another of the possession and dominion of a movable thing is coupled . . .
with the intention, at the time of the 'taking', of withholding it with the character of
permanency (People vs. Galang, 7 Appt. Ct. Rep. 13). In other words, there must have
been shown a felonious intent upon the part of the taker of the car, and the intent
must be an intent permanently to deprive the insured of his car," and that "(S)uch
was not the case in this instance. The fact that the car was taken by one of the
residents of the Sunday Machine Works, and the withholding of the same, for a joy
ride should not be construed to mean 'taking' under Art. 308 of the Revised Penal
Code. If at all there was a 'taking', the same was merely temporary in nature. A
temporary taking is held not a taking insured against (48 ALR 2d., page 15)."

The Court finds respondent commission's dismissal of the complaint to be contrary to


the evidence and the law.

First, respondent commission's ruling that the person who drove the vehicle in the
person of Benito Mabasa, who, according to its own finding, was one of the residents
of the Sunday Machine Works, Inc. to whom the car had been entrusted for general
check-up and repairs was not an "authorized driver" of petitioner-complainant is too
restrictive and contrary to the established principle that insurance contracts, being
contracts of adhesion where the only participation of the other party is the signing of
his signature or his "adhesion" thereto, "obviously call for greater strictness and
vigilance on the part of courts of justice with a view of protecting the weaker party
from abuse and imposition, and prevent their becoming traps for the unwary." 2

The main purpose of the "authorized driver" clause, as may be seen from its text,
supra, is that a person other than the insured owner, who drives the car on the
insured's order, such as his regular driver, or with his permission, such as a friend or
member of the family or the employees of a car service or repair shop must be duly
licensed drivers and have no disqualification to drive a motor vehicle.

A car owner who entrusts his car to an established car service and repair shop
necessarily entrusts his car key to the shop owner and employees who are presumed
to have the insured's permission to drive the car for legitimate purposes of checking
or road-testing the car. The mere happenstance that the employee(s) of the shop
owner diverts the use of the car to his own illicit or unauthorized purpose in violation
of the trust reposed in the shop by the insured car owner does not mean that the
"authorized driver" clause has been violated such as to bar recovery, provided that
such employee is duly qualified to drive under a valid driver's license.

The situation is no different from the regular or family driver, who instead of carrying
out the owner's order to fetch the children from school takes out his girl friend
instead for a joy ride and instead wrecks the car. There is no question of his being an
"authorized driver" which allows recovery of the loss although his trip was for a
personal or illicit purpose without the owner's authorization.

Secondly, and independently of the foregoing (since when a car is unlawfully taken, it
is the theft clause, not the "authorized driver" clause, that applies), where a car is
admittedly as in this case unlawfully and wrongfully taken by some people, be they
employees of the car shop or not to whom it had been entrusted, and taken on a long
trip to Montalban without the owner's consent or knowledge, such taking constitutes
or partakes of the nature of theft as defined in Article 308 of the Revised Penal Code,
viz. "(W)ho are liable for theft. - Theft is committed by any person who, with intent to
gain but without violence against or intimidation of persons nor force upon things,
shall take personal property of another without the latter's consent," for purposes of
recovering the loss under the policy in question.

The Court rejects respondent commission's premise that there must be an intent on
the part of the taker of the car "permanently to deprive the insured of his car" and
that since the taking here was for a "joy ride" and "merely temporary in nature," a
"temporary taking is held not a taking insured against."
The evidence does not warrant respondent commission's findings that it was a mere
"joy ride". From the very investigator's report cited in its comment, 3 the police found
from the waist of the car driver Benito Mabasa y Bartolome who smashed the car and
was found dead right after the incident "one Cal. 45 Colt. and one apple type
grenade," hardly the materials one would bring along on a "joy ride". Then, again, it
is equally evident that the taking proved to be quite permanent rather than
temporary, for the car was totally smashed in the fatal accident and was never
returned in serviceable and useful condition to petitioner-owner.

Assuming, despite the totally inadequate evidence, that the taking was "temporary"
and for a "joy ride", the Court sustains as the better view that which holds that when
a person, either with the object of going to a certain place, or learning how to drive,
or enjoying a free ride, takes possession of a vehicle belonging to another, without
the consent of its owner, he is guilty of theft because by taking possession of the
personal property belonging to another and using it, his intent to gam is evident
since he derives therefrom utility, satisfaction, enjoyment and pleasure. Justice
Ramon C. Aquino cites in his work Groizard who holds that the use of a thing
constitutes gain and Cuello Calon who calls it "hurt de uso."

The insurer must therefore indemnify the petitioner owner for the total loss of the
insured car in the sum of P35,000.00 under the theft clause of the policy, subject to
the filing of such claim for reimbursement or payment as it may have as subrogee
against the Sunday Machine Works, Inc.

ACCORDINGLY, the appealed decision is set aside and judgment is hereby rendered
sentencing private respondent to pay petitioner the sum of P35,000.00 with legal
interest from the filing of the complaint until full payment is made and to pay the
costs of suit.

SO ORDERED.

TEOFISTO GUINGONA, JR., ANTONIO I. MARTIN, and TERESITA SANTOS,


petitioners, vs. THE CITY FISCAL OF MANILA, HON. JOSE B. FLAMINIANO,
ASST. CITY FISCAL FELIZARDO N. LOTA and CLEMENT DAVID,
respondents.1984 April 042nd DivisionG.R. No. L-60033D

MAKASIAR, Actg. C.J.:

This is a petition for prohibition and injunction with a prayer for the immediate
issuance of restraining order and/or writ of preliminary injunction filed by petitioners
on March 26, 1982.

On March 31, 1982, by virtue of a court resolution issued by this Court on the same
date, a temporary restraining order was duly issued ordering the respondents, their
officers, agents, representatives and/or person or persons acting upon their
(respondents') orders or in their place or stead to refrain from proceeding with the
preliminary investigation in Case No. 81-31938 of the Office of the City Fiscal of
Manila (pp. 47-48, rec.). On January 24, 1983, private respondent Clement David filed
a motion to lift restraining order which was denied in the resolution of this Court
dated May 18, 1983.

As can be gleaned from the above, the instant petition seeks to prohibit public
respondents from proceeding with the preliminary investigation of I.S. No. 81-31938,
in which petitioners were charged by private respondent Clement David, with estafa
and violation of Central Bank Circular No. 364 and related regulations regarding
foreign exchange transactions principally, on the ground of lack of jurisdiction in that
the allegations of the charged, as well as the testimony of private respondent's
principal witness and the evidence through said witness, showed that petitioners'
obligation is civil in nature.

For purposes of brevity, We hereby adopt the antecedent facts narrated by the
Solicitor General in its Comment dated June 28, 1982, as follows:

"On December 23, 1981, private respondent David filed I.S. No. 81-31938 in the
Office of the City Fiscal of Manila, which case was assigned to respondent Lota for
preliminary investigation (Petition, p. 8).

"In I.S. No. 81-31938, David charged petitioners (together with one Robert Marshall
and the following directors of the Nation Savings and Loan Association, Inc., namely
Homero Gonzales, Juan Merino, Flavio Macasaet, Victor Gomez, Jr., Perfecto Mañalac,
Jaime V. Paz, Paulino B. Dionisio, and one John Doe) with estafa and violation of
Central Bank Circular No. 364 and related Central Bank regulations on foreign
exchange transactions, allegedly committed as follows (Petition, Annex 'A'):

"'From March 20, 1979 to March, 1981, David invested with the Nation Savings and
Loan Association, (hereinafter called NSLA) the sum of P1,145,546.20 on time
deposits, P13,531.94 on savings account deposits (jointly with his sister, Denise
Kuhne), US$10,000.00 on time deposit, US$15,000.00 under a receipt and guarantee
of payment and US$50,000.00 under a receipt dated June 8, 1980 (all jointly with
Denise Kuhne), that David was induced into making the aforestated investments by
Robert Marshall, an Australian national who was allegedly a close associate of
petitioner Guingona Jr., then NSLA President, petitioner Martin, then NSLA Executive
Vice-President and petitioner Santos, then NSLA General Manager; that on March 21,
1981 NSLA was placed under receivership by the Central Bank, so that David filed
claims therewith for his investments and those of his sister; that on July 22, 1981
David received a report from the Central Bank that only P305,821.92 of those
investments were entered in the records of NSLA; that, therefore, the respondents in
I.S. No. 81-31938 misappropriated the balance of the investments, at the same time
violating Central Bank Circular No. 364 and related Central Bank regulations on
foreign exchange transactions; that after demands, petitioner Guingona Jr. paid only
P200,000.00, thereby reducing the amounts misappropriated to P959,078.14 and
US$75,000.00.

"Petitioners, Martin and Santos, filed a joint counter-affidavit (Petition, Annex 'B') in
which they stated the following:

"'That Martin became President of NSLA in March 1978 (after the resignation of
Guingona, Jr.) and served as such until October 30, 1980, while Santos was General
Manager up to November 1980; that because NSLA was urgently in need of funds
and at David's insistence, his investments were treated as special accounts with
interests above the legal rate, and recorded in separate confidential documents only
a portion of which were to be reported because he did not want the Australian
government to tax his total earnings (nor) to know his total investments; that all
transactions with David were recorded except the sum of US$15,000.00 which was a
personal loan of Santos; that David's check for US$50,000.00 was cleared through
Guingona, Jr.'s dollar account because NSLA did not have one, that a draft of
US$30,000.00 was placed in the name of one Paz Roces because of a pending
transaction with her; that the Philippine Deposit Insurance Corporation had already
reimbursed David within the legal limits; that majority of the stockholders of NSLA
had filed Special Proceedings No. 82-1695 in the Court of First Instance to contest its
(NSLA's) closure; that after NSLA was placed under receivership, Martin executed a
promissory note in David's favor and caused the transfer to him of a nine and one
half (9 1/2) carat diamond ring with a net value of P510,000.00; and, that the
liabilities of NSLA to David were civil in nature.'

"Petitioner, Guingona, Jr., in his counter-affidavit (Petition, Annex 'C') stated the
following:

"'That he had no hand whatsoever in the transactions between David and NSLA since
he (Guingona Jr.) had resigned as NSLA president in March 1978, or prior to those
transactions; that he assumed a portion of the liabilities of NSLA to David because of
the latter's insistence that he placed his investments with NSLA because of his faith
in Guingona, Jr.; that in a Promissory Note dated June 17, 1981 (Petition, Annex "D")
he (Guingona, Jr.) bound himself to pay David the sums of P668.307.01 and
US$37,500.00 in stated installments; that he (Guingona, Jr.) secured payment of
those amounts with second mortgages over two (2) parcels of land under a deed of
Second Real Estate Mortgage (Petition, Annex" E") in which it was provided that the
mortgage over one (1) parcel shall be cancelled upon payment of one half of the
obligation to David; that he (Guingona, Jr.) paid P200,000.00 and tendered another
P300,000.00 which David refused to accept, hence, he (Guingona, Jr.) filed Civil Case
No. Q-33865 in the Court of First Instance of Rizal at Quezon City, to effect the
release of the mortgage over one (1) of the two parcels of land conveyed to David
under second mortgages.'

"At the inception of the preliminary investigation before respondent Lota, petitioners
moved to dismiss the charges against them for lack of jurisdiction because David's
claims allegedly comprised a purely civil obligation which was itself novated. Fiscal
Lota denied the motion to dismiss (Petition, p. 8)

"But, after the presentation of David's principal witness, petitioners filed the instant
petition because: (a) the production of the Promissory Notes, Banker's Acceptance,
Certificates of Time Deposits and Savings Account allegedly showed that the
transactions between David and NSLA were simple loans, i.e., civil obligations on the
part of NSLA which were novated when Guingona, Jr. and Martin assumed them; and
(b) David's principal witness allegedly testified that the duplicate originals of the
aforesaid instruments of indebtedness were all on file with NSLA, contrary to David's
claim that some of his investments were not recorded (Petition, pp. 8-9).

"Petitioners alleged that they did not exhaust available administrative remedies
because to do so would be futile (Petition, p. 9)" [pp. 153-157, rec.]

As correctly pointed out by the Solicitor General, the sole issue for resolution is
whether public respondents acted without jurisdiction when they investigated the
charges (estafa and violation of CB Circular No. 364 and related regulations regarding
foreign exchange transactions) subject matter of I.S. No. 81-31938.

There is merit in the contention of the petitioners that their liability is civil in nature
and therefore, public respondents have no jurisdiction over the charge of estafa.

A casual perusal of the December 23, 1981 affidavit-complaint filed in the Office of
the City Fiscal of Manila by private respondent David against petitioners Teofisto
Guingona, Jr., Antonio I. Martin and Teresita G. Santos, together with one Robert
Marshall and the other directors of the Nation Savings and Loan Association, will
show that from March 20, 1979 to March, 1981, private respondent David, together
with his sister, Denise Kuhne, invested with the Nation Savings and Loan Association
the sum of P1,145,546.20 on time deposits covered by Bankers Acceptances and
Certificates of Time Deposits and the sum of P13,531.94 on savings account deposits
covered by passbook nos. 6-632 and 29-742, or a total of P1,159,078.14 (pp. 15-16,
rec.). It appears further that private respondent David, together with his sister, made
investments in the aforesaid bank in the amount of US$75,000.00 (p. 17, rec.).

Moreover, the records reveal that when the aforesaid bank was placed under
receivership on March 21, 1981, petitioners Guingona and Martin, upon the request of
private respondent David, assumed the obligation of the bank to private respondent
David by executing on June 17, 1981 a joint promissory note in favor of private
respondent acknowledging an indebtedness of P1,336,614.02 and US$75,000.00 (p.
80, rec.). This promissory note was based on the statement of account as of June 30,
1981 prepared by the private respondent (p. 81, rec.). The amount of indebtedness
assumed appears to be bigger than the original claim because of the added interest
and the inclusion of other deposits of private respondent's sister in the amount of
P116,613.20.

Thereafter, or on July 17, 1981, petitioners Guingona and Martin agreed to divide the
said indebtedness, and petitioner Guingona executed another promissory note
antedated to June 17, 1981 whereby he personally acknowledged an indebtedness of
P668,307.01 (1/2 of P1,336,614.02) and US$37,500.00 (1/2 of US$75,000.00) in favor
of private respondent (p. 25, rec.). The aforesaid promissory notes were executed as
a result of deposits made by Clement David and Denise Kuhne with the Nation
Savings and Loan Association.

Furthermore, the various pleadings and documents filed by private respondent David
before this Court indisputably show that he has indeed invested his money on time
and savings deposits with the Nation Savings and Loan Association.

It must be pointed out that when private respondent David invested his money on
time and savings deposits with the aforesaid bank, the contract that was perfected
was a contract of simple loan or mutuum and not a contract of deposit. Thus, Article
1980 of the New Civil Code provides that:

"Article 1980. Fixed, savings, and current deposits of money in banks and similar
institutions shall be governed by the provisions concerning simple loan."

In the case of Central Bank of the Philippines vs. Morfe (63 SCRA 114, 119 [1975], We
said:

"It should be noted that fixed, savings, and current deposits of money in banks and
similar institutions are not true deposits. They are considered simple loans and, as
such, are not preferred credits (Art. 1980 Civil Code: In re Liquidation of Mercantile
Bank of China: Tan Tiong Tick vs. American Apothecaries Co., 65 Phil. 414; Pacific
Coast Biscuit Co. vs. Chinese Grocers Association, 65 Phil. 375; Fletcher American
National Bank vs. Ang Cheng Lian, 65 Phil. 385; Pacific Commercial Co. vs. American
Apothecaries Co., 65 Phil. 429; Gopoco Grocery vs. Pacific Coast Biscuit Co., 65 Phil.
443)."

This Court also declared in the recent case of Serrano vs. Central Bank of the
Philippines (96 SCRA 96, 102 [1980]) that:

"Bank deposits are in the nature of irregular deposits. They are really loans because
they earn interest. All kinds of bank deposits, whether fixed, savings, or current are to
be treated as loans and are to be covered by the law on loans (Art. 1980, Civil Code;
Gullas vs. Phil. National Bank, 62 Phil. 519). Current and savings deposits are loans to
a bank because it can use the same. The petitioner here in making time deposits that
earn interests with respondent Overseas Bank of Manila was in reality a creditor of
the respondent Bank and not a depositor. The respondent Bank was in turn a debtor
of petitioner. Failure of the respondent Bank to honor the time deposit is failure to pay
its obligation as a debtor and not a breach of trust arising from a depository's failure
to return the subject matter of the deposit".

Hence, the relationship between the private respondent and the Nation Savings and
Loan Association is that of creditor and debtor; consequently, the ownership of the
amount deposited was transmitted to the Bank upon the perfection of the contract
and it can make use of the amount deposited for its banking operations, such as to
pay interests on deposits and to pay withdrawals. While the Bank has the obligation
to return the amount deposited, it has, however, no obligation to return or deliver the
same money that was deposited. And, the failure of the Bank to return the amount
deposited will not constitute estafa through misappropriation punishable under
Article 315, par. 1(b) of the Revised Penal Code, but it will only give rise to civil
liability over which the public respondents have no jurisdiction.

WE have already laid down the rule that:

"In order that a person can be convicted under the above-quoted provision, it must
be proven that he has the obligation to deliver or return the same money, goods or
personal property that he received. Petitioners had no such obligation to return the
same money, i.e., the bills or coins, which they received from private respondents.
This is so because as clearly stated in criminal complaints, the related civil
complaints and the supporting sworn statements, the sums of money that petitioners
received were loans.

"The nature of simple loan is defined in Articles 1933 and 1953 of the Civil Code.

"'Art. 1933. - By the contract of loan, one of the parties delivers to another, either
something not consumable so that the latter may use the same for a certain time
and return it, in which case the contract is called a commodatum; or money or other
consumable thing, upon the condition that the same amount of the same kind and
quality shall be paid in which case the contract is simply called a loan or mutuum.

"'Commodatum is essentially gratuitous.

"'Simple loan may be gratuitous or with a stipulation to pay interest.

"'In commodatum the bailor retains the ownership of the thing loaned, while in simple
loan, ownership passes to the borrower.

"'Art. 1953. - A person who receives a loan of money or any other fungible thing
acquires the ownership thereof, and is bound to pay to the creditor an equal amount
of the same kind and quality.'

"It can be readily noted from the above quoted provisions that in simple loan
(mutuum), as contrasted to commodatum, the borrower acquires ownership of the
money, goods or personal property borrowed. Being the owner, the borrower can
dispose of the thing borrowed (Article 248, Civil Code) and his act will not be
considered misappropriation thereof" (Yam vs. Malik, 94 SCRA 30, 34 [1979]).

But even granting that the failure of the bank to pay the time and savings deposits of
private respondent David would constitute a violation of paragraph 1(b) of Article 315
of the Revised Penal Code, nevertheless any incipient criminal liability was deemed
avoided, because when the aforesaid bank was placed under receivership by the
Central Bank, petitioners Guingona and Martin assumed the obligation of the bank to
private respondent David, thereby resulting in the novation of the original contractual
obligation arising from deposit into a contract of loan and converting the original
trust relation between the bank and private respondent David into an ordinary
debtor-creditor relation between the petitioners and private respondent.
Consequently, the failure of the bank or petitioners Guingona and Martin to pay the
deposits of private respondent would not constitute a breach of trust but would
merely be a failure to pay the obligation as a debtor.

Moreover, while it is true that novation does not extinguish criminal liability, it may
however, prevent the rise of criminal liability as long as it occurs prior to the filing of
the criminal information in court. Thus, in Gonzales vs. Serrano ( 25 SCRA 64, 69
[1968]) We held that:

"As pointed out in People vs. Nery, novation prior to the filing of the criminal
information - as in the case at bar - may convert the relation between the parties into
an ordinary creditor-debtor relation, and place the complainant in estoppel to insist
on the original transaction or 'cast doubt on the true nature' thereof."

Again, in the latest case of Ong vs. Court of Appeals (L-58476, 124 SCRA 578, 580-
581 [1983]), this Court reiterated the ruling in People vs. Nery ( 10 SCRA 244 [1964]),
declaring that:

"The novation theory may perhaps apply prior to the filing of the criminal information
in court by the state prosecutors because up to that time the original trust relation
may be converted by the parties into an ordinary creditor-debtor situation, thereby
placing the complainant in estoppel to insist on the original trust. But after the justice
authorities have taken cognizance of the crime and instituted action in court, the
offended party may no longer divest the prosecution of its power to exact the
criminal liability, as distinguished from the civil. The crime being an offense against
the state, only the latter can renounce it (People vs. Gervacio, 54 Off. Gaz. 2898;
People vs. Velasco, 42 Phil. 76; U.S. vs. Montañes, 8 Phil. 620).

"It may be observed in this regard that novation is not one of the means recognized
by the Penal Code whereby criminal liability can be extinguished; hence, the role of
novation may only be to either prevent the rise of criminal liability or to cast doubt on
the true nature of the original basic transaction, whether or not it was such that its
breach would not give rise to penal responsibility, as when money loaned is made to
appear as a deposit, or other similar disguise is resorted to (cf. Abeto vs. People, 90
Phil. 581; U.S. vs. Villareal, 27 Phil. 481)."

In the case at bar, there is no dispute that petitioners Guingona and Martin executed
a promissory note on June 17, 1981 assuming the obligation of the bank to private
respondent David; while the criminal complaint for estafa was filed on December 23,
1981 with the Office of the City Fiscal. Hence, it is clear that novation occurred long
before the filing of the criminal complaint with the Office of the City Fiscal.

Consequently, as aforestated, any incipient criminal liability would be avoided but


there will still be a civil liability on the part of petitioners Guingona and Martin to pay
the assumed obligation.

Petitioners herein were likewise charged with violation of Section 3 of Central Bank
Circular No. 364 and other related regulations regarding foreign exchange
transactions by accepting foreign currency deposit in the amount of US$75,000.00
without authority from the Central Bank. They contend however, that the US dollars
intended by respondent David for deposit were all converted into Philippine currency
before acceptance and deposit into Nation Savings and Loan Association.

Petitioners' contention is worthy of belief for the following reasons:

1. It appears from the records that when respondent David was about to make a
deposit of bank draft issued in his name in the amount of US$50,000.00 with the
Nation Savings and Loan Association, the same had to be cleared first and converted
into Philippine currency. Accordingly, the bank draft was endorsed by respondent
David to petitioner Guingona, who in turn deposited it to his dollar account with the
Security Bank and Trust Company. Petitioner Guingona merely accommodated the
request of the Nation Savings and Loan Association in order to clear the bank draft
through his dollar account because the bank did not have a dollar account.
Immediately after the bank draft was cleared, petitioner Guingona authorized Nation
Savings and Loan Association to withdraw the same in order to be utilized by the
bank for its operations.

2. It is safe to assume that the U.S. dollars were converted first into Philippine pesos
before they were accepted and deposited in Nation Savings and Loan Association,
because the bank is presumed to have followed the ordinary course of the business
which is to accept deposits in Philippine currency only, and that the transaction was
regular and fair, in the absence of a clear and convincing evidence to the contrary
(see paragraphs p and q, Sec. 5, Rule 131, Rules of Court).

3. Respondent David has not denied the aforesaid contention of herein petitioners
despite the fact that it was raised in petitioners' reply filed on May 7, 1982 to private
respondent's comment and in the July 27, 1982 reply to public respondents' comment
and reiterated in petitioners' memorandum filed on October 30, 1982, thereby adding
more support to the conclusion that the US$75,000.00 were really converted into
Philippine currency before they were accepted and deposited into Nation Savings and
Loan Association. Considering that this might adversely affect his case, respondent
David should have promptly denied petitioners' allegation.

In conclusion, considering that the liability of the petitioners is purely civil in nature
and that there is no clear showing that they engaged in foreign exchange
transactions, We hold that the public respondents acted without jurisdiction when
they investigated the charges against the petitioners. Consequently, public
respondents should be restrained from further proceeding with the criminal case for
to allow the case to continue, even if the petitioners could have appealed to the
Ministry of Justice, would work great injustice to petitioners and would render
meaningless the proper administration of justice.

While as a rule, the prosecution in a criminal offense cannot be the subject of


prohibition and injunction, this court has recognized the resort to the extraordinary
writs of prohibition and injunction in extreme cases, thus:

"On the issue of whether a writ of injunction can restrain the proceedings in Criminal
Case No. 3140, the general rule is that 'ordinarily, criminal prosecution may not be
blocked by court prohibition or injunction.' Exceptions, however, are allowed in the
following instances:

"'1. for the orderly administration of justice;


"'2. to prevent the use of the strong arm of the law in an oppressive and vindictive
manner;
"'3. to avoid multiplicity of actions;
"'4. to afford adequate protection to constitutional rights;
"'5. in proper cases, because the statute relied upon is unconstitutional or was
held invalid'" (Primicias vs. Municipality of Urdaneta, Pangasinan, 93 SCRA 462, 469-
470 [1979]; citing Ramos vs. Torres, 25 SCRA 557 [1968]; and Hernandez vs. Albano,
19 SCRA 95, 96 [1967]).

Likewise, in Lopez vs. The City Judge, et al. (18 SCRA 616, 621-622 [1966]), We held
that:

"The writs of certiorari and prohibition, as extraordinary legal remedies, are in the
ultimate analysis, intended to annul void proceedings; to prevent the unlawful and
oppressive exercise of legal authority and to provide for a fair and orderly
administration of justice. Thus, in Yu Kong Eng vs. Trinidad, 47 Phil. 385, We took
cognizance of a petition for certiorari and prohibition although the accused in the
case could have appealed in due time from the order complained of, our action in the
premises being based on the public welfare and the advancement of public policy, In
Dimayuga vs. Fajardo, 43 Phil. 304, We also admitted a petition to restrain the
prosecution of certain chiropractors although, if convicted, they could have appealed.
We gave due course to their petition for the orderly administration of justice and to
avoid possible oppression by the strong arm of the law. And in Arevalo vs.
Nepomuceno, 63 Phil. 627, the petition for certiorari challenging the trial court's
action admitting an amended information was sustained despite the availability of
appeal at the proper time."

WHEREFORE, THE PETITION IS HEREBY GRANTED; THE TEMPORARY RESTRAINING


ORDER PREVIOUSLY ISSUED IS MADE PERMANENT. COSTS AGAINST THE PRIVATE
RESPONDENT.

SO ORDERED.

ROBERT CRISANTO D. LEE, Petitioner, versus PEOPLE OF THE PHILIPPINES


and ATOZ TRADING CORPORATION, Respondents.2005 Apr 112nd
DivisionG.R. No. 157781D E C I S I O N

CALLEJO, SR., J.:

This is a petition for review under Rule 45 of the Revised Rules of Court of the
Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 19947 dismissing the
appeal of petitioner Robert Crisanto D. Lee and the Resolution[2] denying his motion
for reconsideration.

At the instance of Atoz Trading Corporation (ATC), 10 separate Informations were


filed, on September 27, 1994, in the Regional Trial Court of Pasig City, Branch 159,
against petitioner in his capacity as marketing manager of ATC. The cases were
docketed as Criminal Case Nos. 107020 to 107029. Except for the dates and the
amounts involved, the Informations contained common allegations for the crimes
allegedly committed, as follows:

1. CRIM. CASE No. 107020:

That on or about the 10th day of January, 1992, in the Municipality of San Juan, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, being then the Marketing Manager of Atoz Trading Corporation
represented by Johnny M. Jaotegan was authorized to [receive] payments for the
company; Thus received from Ocean Feed Mills Company's Client, the amount of
P47,940.00 through telegraphic transfer, with the corresponding obligation to
remit/account the same to Atoz Trading Corporation; but accused, far from complying
with his obligation to remit the same despite notices and demands made upon him,
with intent [to] gain, unfaithfulness and grave abuse of confidence and to defraud
Atoz Trading Corporation represented by Johnny M. Jaotegan once in possession of
the money received from Ocean Feed Mills, did then and there willfully, unlawfully,
and feloniously misapplied, misappropriated and converted to his own personal use
and benefit the amount of P47,940.00 to the damage and prejudice of the
complainant in the aforementioned amount of P47,940.00.

CONTRARY TO LAW.[3]

Other than Criminal Case No. 107023 which was ordered dismissed on motion of the
prosecution, joint trial on the merits of the remaining nine cases eventuated,
following the arraignment of petitioner on February 20, 1995 during which he pleaded
“Not Guilty.”

The proceedings before the trial court and the evidence adduced by the parties were
summarized by the CA as follows:

During the joint trial of the remaining cases, the prosecution presented the following
witnesses: (1) Johnny Jaotegan, the President and Chief Operating Officer of Atoz
Trading Corporation; (2) Jeffrey Corneby, the general teller of UCPB, Greenhills, San
Juan; (3) Maria Concepcion dela Cruz, the corporate secretary of Ocean Feed Mills;
and (4) Ellen Gusar, the accounting clerk-computer encoder of Atoz Trading
Corporation. Their testimonies tend to establish the following factual backdrop:

Atoz Trading Corporation, hereinafter referred to as Atoz, is a stock corporation


engaged in the trading of animal feeds, feeds supplements, raw materials and
ingredients for feed mills, with herein [petitioner] Robert Crisanto Lee as the
corporation’s sales manager from early 90’s to 1994. In the course of Lee’s
employment therewith, he was able to bring in Ocean Feed Mills, a Bacolod-based
company engaged in the manufacture of pelletized feeds for prawn and fish, as one
of Atoz’s clients. Having “personally found” Ocean Feed Mills, [petitioner] handled
said account.

Transactions between the two companies were then coursed through [petitioner], so
that it was upon the latter’s instructions that Ocean Feed Mills addressed its
payments through telegraphic transfers to either “Atoz Trading and/or Robert Lee” or
“Robert Lee” since [petitioner] explained that it was difficult for him to claim the
check at UCPB Greenhills.

When [petitioner] ceased reporting for work in 1994, Atoz audited some of the
accounts handled by him. It was then that Atoz discovered Ocean Feed Mills’ unpaid
account in the amount of P318,672.00. Atoz thus notified Ocean Feed Mills that
[petitioner] was no longer connected with the corporation, and advised it to verify its
accounts. Promptly preparing a certification and summary of payments, Ocean Feed
Mills informed Atoz that they have already fully settled their accounts and even made
overpayments.

Bank documents prepared and submitted by UCPB Greenhills, San Juan, later showed
that [petitioner] maintained therewith Savings Account No. 117-105532-0, to which
account the payments made by Ocean Feed Mills to Atoz through telegraphic
transfers, have either been credited or deposited. Jeffrey Corneby, UCPB Greenhills’
general teller, testified that upon receipt of telegraphic transfers coursed through
UCPB, it is customary for said bank to either credit the amount to payee’s account if
payee has an account with the bank, or just issue a manager’s check for the amount
transmitted if the payee has no account.

Meanwhile, Ellen Gusar, whose duty was to prepare statement of accounts to be sent
to Atoz’s clients, attested that [petitioner] took the duly-prepared statement of
accounts of Ocean Feed Mills and never returned the same, on the pretext that he
had already sent them to the Ocean Feed Mills. She also confirmed that, as of
September 30, 1992, the subsidiary ledger of Atoz showed that Ocean Feed Mills had
an outstanding balance of P318,672.00.

After the prosecution rested its case, the [petitioner] filed a Demurrer to Evidence,
therein alleging that the evidence thus far presented by the prosecution in each of
the cases were insufficient inasmuch as “[I]t is bereft of any evidence of formal
demand upon the accused to remit the amounts allegedly misappropriated, before
the filing of the subject cases.” In an Order dated January 23, 1996, the trial court
denied the demurrer for lack of factual and legal basis (Records, p. 200).

In his defense, [petitioner] maintained that he had informed Lu Hsui Nan, the man
whom he alleged to be the “real” president of Atoz, of the manner in which Ocean
Feed Mills transmitted its payments and that Nan said “it is okay although unusual,
as long as I [petitioner] maintain the customer and the relationships and as long as
they pay us” (TSN, March 26, 1996, p. 14). He also asserted that as soon as the bank
credited the remittances to his account, he would withdraw the same either in cash
or in the form of manager’s checks and remitted the same to Beth Ligo, Atoz’s
cashier. He insisted, however, that Beth Ligo, instead of issuing acknowledgment
receipts of the aforesaid remittances, merely recorded the same and furnished copies
thereof to the credit and collections and the accounting departments of Atoz.

On rebuttal, the prosecution recalled Johnny Jaotegan to the witness stand, and
presented additional witnesses, namely: (1) Lu Hsui Nan, whom the prosecution
presented as Atoz’s vice president and director; and (2) Elizabeth Ligo, Atoz’s cashier
from 1985 to 1994.

Nan denied having knowledge that Ocean Feed Mills made payments through
telegraphic transfers addressed to “Atoz Trading Corporation and/or Robert Lee” as
payee, saying that he only learned of the same when [petitioner] ceased working for
the corporation.

Ligo, on the other hand, testified that she did not receive any payment from Ocean
Feed Mills, hence she did not issue provisional receipts for the same. She added that
it was only on April 7, 1992 when she issued Provisional Receipt No. 502 for Ocean
Feed Mills’ payment of P25,500.00 collected by [petitioner].

Jaotegan claimed that on August 12, 1994, between 10 p.m. to 1 a.m., he went to
Parañaque, accompanied by his counsel and some policemen, and tried to locate
[petitioner], and that upon finding him, “we asked him [petitioner] to remit the
payments made by Ocean Feed Mills to Atoz Trading Corporation.” (TSN, 14 May
1996, p. 19).

On sur-rebuttal, [petitioner] declared that Jaotegan did not demand the payments
made by Ocean Feed Mills [Company] but only demanded from him the return of the
service car and the cellular phone assigned to him.[4]

On July 23, 1996, the trial court rendered judgment convicting the petitioner of the
crimes charged. The dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing, the Court finds accused ROBERT CRISANTO
LEE guilty beyond reasonable doubt of nine (9) counts of the crime of Estafa, defined
and penalized under Art. 315, par. 1(b) of the Revised Penal Code and there being no
mitigating nor aggravating circumstances present in the commission of the crime
hereby sentences said accused to suffer the following:

1) In Crim. Case No. 107020 – An indeterminate penalty of two (2) years, eleven
(11) months and eleven (11) days of prision correccional in its medium period as
minimum to eight (8) years and one (1) day of prision mayor in its medium period as
maximum and to pay Atoz Trading Corporation the amount of P47,940.00 as actual
damages plus costs.

2) In Crim. Case No. 107021 – An indeterminate penalty of two (2) years, eleven
(11) months and eleven (11) days of prision correccional in its medium period as
minimum to eight (8) years and one (1) day of prision mayor in its medium period as
maximum and to pay Atoz Trading Corporation the amount of P47,940.00 as actual
damages plus costs.

3) In Crim. Case No. 107022 – An indeterminate penalty of two (2) years, eleven
(11) months and eleven (11) days of prision correccional in its medium period as
minimum to five (5) years and six (6) months of prision correccional in its maximum
period as maximum and to pay Atoz Trading Corporation the amount of P17,000.00
as actual damages plus costs.

4) In Crim. Case No. 107024 – An indeterminate penalty of two (2) years, eleven
(11) months and eleven (11) days of prision correccional in its medium period as
minimum to eight (8) years and one (1) day of prision mayor in its medium period as
maximum and to pay Atoz Trading Corporation the amount of P47,000.00 as actual
damages plus costs.

5) In Crim. Case No. 107025 – An indeterminate penalty of three (3) years, six
(6) months and twenty (20) days of prision correccional in its medium period as
minimum to nine (9) years and one (1) day of prision mayor in its medium period as
maximum and to pay Atoz Trading Corporation the amount of P54,000.00 as actual
damages plus costs.

6) In Crim. Case No. 107026 – An indeterminate penalty of one (1) year and nine
(9) months of prision correccional in its minimum period as minimum to six (6) years
and one (1) day of prision mayor in its minimum period as maximum and to pay Atoz
Trading Corporation the amount of P15,000.00 as actual damages plus costs.

7) In Crim. Case No. 107027 – An indeterminate penalty of two (2) years, eleven
(11) months and eleven (11) days of prision correccional in its medium period as
minimum to eight (8) years and one (1) day of prision mayor in its medium period as
maximum and to pay complainant the amount of P23,256.00 as actual damages plus
costs.

8) In Crim. Case No. 107028 – An indeterminate penalty of three (3) years, six
(6) months and twenty (20) days of prision correccional in its medium period as
minimum to fifteen (15) years, eight (8) months and one (1) day of reclusion
temporal in its medium period as maximum and to pay private complainant the
amount of P93,000.00 as actual damages plus costs.

9) In Crim. Case No. 107029 – An indeterminate penalty of two (2) years, eleven
(11) months and eleven (11) days of prision correccional in its medium period as
minimum to eight (8) years and one (1) day of prision mayor in its medium period as
maximum and to pay private complainant Atoz Trading Corporation the amount of
P44,696.00 as actual damages plus costs.

SO ORDERED.[5]

The petitioner appealed the decision to the CA contending that:

A) THE LOWER COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF


ESTAFA THRU CONVERSION OR MISAPPROPRIATION EVEN WITHOUT ANY EVIDENCE
OF PRIOR DEMAND; AND

B) THE LOWER COURT GRAVELY ERRED IN FINDING THAT THERE IS EVIDENCE OF


CONVERSION OR MISAPPROPRIATION SINCE THERE IS LACK OF IT. (Appellant’s Brief,
p. 4; Rollo, pp. 32-40, 35).[6]

In a Decision on September 13, 2002, the CA dismissed the appeal and affirmed the
assailed decision. The appellate court, likewise, dismissed the petitioner’s motion for
the reconsideration of its decision.

Aggrieved by the aforementioned rulings, the petitioner filed the instant petition for
review and raised the following:

A.) WHETHER OR NOT PETITIONER CAN BE CONVICTED FOR THE CRIME OF ESTAFA
THRU CONVERSION (ART. 315, PAR. 1-[b] OF THE REVISED PENAL CODE), LACKING
THE ELEMENT OF FORMAL DEMAND BEFORE THE FILING OF THE CASES AGAINST HIM;
AND

B.) WHETHER THE QUESTIONED DECISION AND RESOLUTION WERE ISSUED WITH
GRAVE ABUSE OF DISCRETION OR NOT.[7]

The petitioner contends that demand is a condition sine qua non to the filing of a
criminal complaint for estafa. He posits that demand must be made formally. The
petitioner cites the commentary of Justice Ramon C. Aquino, based on the rulings of
the CA in People v. Pendon[8] and People v. Bastiana.[9] The petitioner, likewise,
echoes the commentary of Justice Aquino that even in Tubb v. People,[10] the Court
ruled that there must be demand for funds or property held in trust. The petitioner
asserts that the respondents failed to prove the element of demand on its evidence-
in-chief and attempted to prove the same only on its rebuttal evidence. In any event,
the petitioner asserts that the evidence adduced by the respondents to prove the
petitioner’s misappropriation is doubtful.

The respondents refute the contention of the petitioner, thus:

The fourth element of estafa under Article 315, par. 1(b) of the Revised Penal Code,
i.e., that demand was made by the offended party, was adequately and clearly
proven by the prosecution. It must be stressed that prior to the filing of the subject
criminal cases against petitioner, private complainant’s president, Johnny Jaotegan,
had demanded from petitioner to turn over to him the subject sums of money. Thus,
in the evening of August 12, 1994, Johnny Jaotegan, along with his counsel Atty.
Fernando Flor and some Parañaque policemen, went to petitioner’s house in
Parañaque and there he asked petitioner to remit said sums of money and to return
the company car and a cellular phone (TSN, May 14, 1996, pp. 16-19). It also
appears that earlier, private complainant’s officers had encountered difficulty in
locating petitioner after his continued failure to report for work in August 1994,
prompting said officers to seek the assistance of the Parañaque police for that
purpose (Ibid., p. 17). Evidently, as petitioner admitted, there was a demand made
on him to account for the money he had collected from private complainant’s
customer.

Contrary to petitioner’s proposition, prior demand need not be made formally (See
People vs. Valeriano, CA, 61 O.G. 282, 284 [1965], citing Tubb vs. People, 101 Phil.
114 [1957]). This Honorable Court has suggested in the Tubb case that previous
demand may be made in
whatever form. There, the complainant, after having failed to locate the
whereabouts of the accused to whom he had entrusted P6,000.00 for the purchase of
rattan and who neither delivered the rattan nor returned the money, met the accused
by chance at the Manila Hotel one year later and asked him about the money.
Charged with estafa, the accused claimed that no demand had been made upon him.
The Honorable Court declared:

“It is urged that there can be no estafa without a previous demand, which allegedly
has not been made upon herein petitioner, but the aforementioned query made to
him by Quasha, in the Manila Hotel, was tantamount to a demand. Besides, the law
does not require a demand as a condition precedent to the existence of the crime of
embezzlement. It so happens only that failure to account, upon demand for funds or
property held in trust, is circumstantial evidence of misappropriation. The same
[may], however, be established in the case at bar.”

(Tubb vs. People, supra, at 119)

Indeed, in Barrameda vs. Court of Appeals, 313 SCRA 477, 485 [1999], this Honorable
Court, citing Tubb vs. People, supra, held that the specific word “demand” need not
be used to show that demand had, indeed, been made upon the person charged with
the offense. A query as to the whereabouts of the money is tantamount to a
demand.

Notably, in his cited book, former Chief Justice Aquino does not, in anyway, purport to
subscribe to the view that a demand must be made formally. What he merely says is
that while this Honorable Court ruled in Tubb that, under the law, a demand is not a
condition precedent to the existence of the crime of embezzlement and that the
failure to account, upon demand, for funds or property held in trust is circumstantial
evidence of misappropriation, the same ruling states that there must still be some
demand, regardless of its form. In the same manner, while he cited in his book the
Court of Appeals’ ruling in People vs. Pendon (supra) and People vs. Bastiana (supra)
that such demand must be made formally and before the action is filed and that in
the absence of demand, an accused cannot be convicted of estafa, it is apparent
therefrom that Justice Aquino made use of the citation only to set forth the diverging
opinions of the Court of Appeals on the matter, namely, (1) one view holding that the
demand must be made formally (People vs. Pendon, supra); (2) another one holding
that such demand is not required if there is a specified time for delivery (People vs.
Librea, CA, 48 O.G. 5304); and (3) still another one holding that a report to the police
was considered a demand (People vs. Baquir, CA-G.R. No. 5349-R, January 26, 1951).
[11]
We agree with the respondents.

Article 315, paragraph 1(b) of the Revised Penal Code reads:

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the
means mentioned herein below shall be punished by:

1. With unfaithfulness or abuse of confidence, namely:

(b) By misappropriating or converting, to the prejudice of another, money, goods, or


any other personal property received by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty to make delivery of
or to return the same, even though such obligation be totally or partially guaranteed
by a bond; or by denying having received such money, goods, or other property.

The elements of estafa with abuse of confidence are as follows: a) that money, goods
or other personal property is received by the offender in trust, or on commission, or
for administration, or under any other obligation involving the duty to make delivery
of, or to return the same; b) that there be misappropriation or conversion of such
money or property by the offender; or denial on his part of such receipt; c) that such
misappropriation or conversion or denial is to the prejudice of another.[12]

The words “convert” and “misappropriate” as used in the aforequoted law connote
an act of using or disposing of another’s property as if it were one’s own or of
devoting it to a purpose or use different from that agreed upon. To “misappropriate”
a thing of value for one’s own use or benefit, not only the conversion to one’s
personal advantage but also every attempt to dispose of the property of another
without a right.[13] Misappropriation or conversion may be proved by the
prosecution by direct evidence or by circumstantial evidence.

Demand is not an element of the felony or a condition precedent to the filing of a


criminal complaint for estafa. Indeed, the accused may be convicted of the felony
under Article 315, paragraph 1(b) of the Revised Penal Code if the prosecution proved
misappropriation or conversion by the accused of the money or property subject of
the Information.[14] In a prosecution for estafa, demand is not necessary where
there is evidence of misappropriation or conversion.[15] However, failure to account
upon demand, for funds or property held in trust, is circumstantial evidence of
misappropriation.[16]

Demand need not be formal. It may be verbal. In Barrameda v. Court of Appeals,[17]


the Court ruled that even a query as to the whereabouts of the money is tantamount
to a demand:

It must be noted that the specific word “demand” need not be used to show that
demand had, indeed, been made upon the person charged of the offense. A query as
to the whereabouts of the money, such as the one proven in the case at bench, is
tantamount to a demand.[18]

In the present case, the prosecution adduced proof upon cross-examination of the
petitioner that he failed to return the funds held in trust before the complaint for
estafa was filed against him:
Anent the second element of Estafa under Article 315, par. 1(b), there was a strong
and positive evidence that in all the criminal cases filed before this Court, the
accused had, indeed, converted the proceeds of the telegraphic transfers (remitted
by Ocean Feed Mills [Company] in favor of Atoz Trading Corporation) to his own
benefit. A perusal of the Transcript of Stenographic Notes dated March 26, 1996,
page 30, reads:

Cross-Examination of Robert
Lee conducted by
Atty. Flor:

Q - According to you, Mr. Witness, the Ocean Feed Mills whenever they remit their
payment, they do it through telegraphic transfer?

A - Yes, Sir.

Q - And according to you, the telegraphic transfer is paid to or the payee is Atoz
Trading and/or Robert Crisanto Lee?

A - Just Robert Lee only.

Q - That Robert Lee refers to you?

A - Yes, Sir.

In the foregoing cross-examination, accused admitted that he received the


telegraphic transfers sent by Ocean Feed Mills. In the same Transcript of
Stenographic Notes, pp. 34-36, accused tried to defend himself by alleging that the
proceeds of the remitted amount were given to Ms. Beth Ligo, cashier of Atoz Trading
Corporation.

Cross-Examination
conducted by
Atty. Flor:

Q - This Beth Ligo, Mr. Witness, according to you, she is the cashier of what
company?

A - Both of Atoz and Chiu-Nichi Agro Resources.

Q - According to you a while ago, whenever the Ocean Feed Mills remit their
payment, it goes to your account at UCPB and then you withdraw that money from
UCPB, Greenhills, sometimes in cash and sometimes in the form of manager’s check
payable to Atoz Trading. A while ago, Mr. Witness, you testified that you withdraw the
cash from your bank account, is it not?

A - Since it was credited in my account, I have to withdraw it from my account.

Q - You withdraw the payments remitted from Bacolod to Greenhills UCPB, from your
bank account?

A - Because it was credited.

Q - My question is, did you withdraw the remittances from your bank account?
A - Yes, Sir.

Q - After you withdraw that money from your bank account, you immediately go and
see Miss Beth Ligo and surrender that cash to her, is that what you want to tell us?

A - What do you mean by immediate.

Q - According to you, a while ago, Mr. Witness, UCPB Greenhills is just in front of your
office at Greenhills, is it not?

A - Correct, Sir.

Q - When you learned that there is a remittance from Bacolod from their payment of
Atoz product, you go to your bank and withdraw that remittance in cash and
immediately with this cash, you just cross the street and surrender it to the cashier
Ms. Beth Ligo, is it not correct?

A - If what you mean upon crediting of payment from Ocean Feed Mills to my
account and I withdraw it immediately, sometimes it was credited and before I know
about it a day or two after. That is the situation.

Q - Yes, my question is when you learned that telegraphic transfer was made by
Ocean Feed Mills to Atoz Trading and/or Robert Lee and incidentally it ended up in
your account, what you normally do is you go and withdraw that amount in cash and
considering that your office is just across the street, with the cash you go and see the
cashier Miss Beth Ligo and right there and then give her the cash?

A - Yes, because all remittances are handed to the cashier.

From the foregoing testimony of the accused, it is clear that Mr. Robert Crisanto Lee
had, indeed, misappropriated or converted to his personal use the payments of
Ocean Feed Mills which were remitted thru telegraphic transfers in nine (9) instances
since the account of Ocean with Atoz remains outstanding up to the present (Exh. “I,”
“I-1” and “J”) as corroborated by Ms. Beth Ligo (cashier of Atoz) where she stated on
rebuttal that the accused did not remit these payments of Ocean. It is evident that
the accused assumed the right to dispose of the remittances as if it were his own,
thus, committing conversion with unfaithfulness and a clear breach of trust.

It is quite obvious that the misappropriation or conversion committed by the accused


resulted to the prejudice of both Atoz Trading Corporation and Ocean Feed Mills
particularly the latter, which had a belief all along that its payments were credited to
its outstanding balance. Since records reveal that up to this even date, Ocean has an
outstanding balance of P318,672.00, sufficient to constitute injury within the
meaning of Article 315 a(b) of the Revised Penal Code. Thus, the third element of
this kind of Estafa is satisfied.[19]

The respondents, likewise, adduced evidence on rebuttal testimony of Johnny M.


Jaotegan, the president of ATC, that he, in the company of policemen, demanded the
production of the funds from the petitioner but that the latter failed to account for
and return the same.[20]

The bare fact that the respondents adduced proof of demand only when they
presented Johnny M. Jaotegan as rebuttal witness and not as a witness on their
evidence-in-chief does not enfeeble the case of the respondents. It bears stressing
that in resolving a case, the trial court must consider all the evidence adduced by the
parties on their evidence-in-chief, rebuttal evidence and sur-rebuttal evidence.
Moreover, the petitioner testified on sur-rebuttal evidence and denied the testimony
of Jaotegan on rebuttal, hence, cannot feign prejudice.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs
against the petitioner.

SO ORDERED.

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