Republic of the Philippines

Supreme Court

Manila

THIRD DIVISION

GEMMA T. JACINTO,

Petitioner,

G.R. No. 162540

Present:

- versus -

YNARES-SANTIAGO, J.,

Chairperson,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA, and

PERALTA, JJ.

PEOPLE OF THE PHILIPPINES,

Promulgated:

Respondent.

July 13, 2009

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

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the reversal of the
Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's
conviction of the crime of Qualified Theft, and its Resolution[2] dated March 5, 2004 denying petitioner's motion for
reconsideration.

Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline Capitle, was charged
before the Regional Trial Court (RTC) of Caloocan City, Branch 131, with the crime of Qualified Theft, allegedly
committed as follows:

That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and mutually helping one another, being then all
employees of MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y CO, and as such had free
access inside the aforesaid establishment, with grave abuse of trust and confidence reposed upon them with intent to
gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and
feloniously take, steal and deposited in their own account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the
sum of P10,000.00, representing payment made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the damage
and prejudice of the latter in the aforesaid stated amount of P10,000.00.

CONTRARY TO LAW.[3]

The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the events that
transpired to be as follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner Banco De Oro (BDO)
Check Number 0132649 postdated July 14, 1997 in the amount of P10,000.00. The check was payment for Baby Aquino's
purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega Foam. Somehow, the check was
deposited in the Land Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of
petitioner and the former pricing, merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime in the middle of July
from one of their customers, Jennifer Sanalila. The customer wanted to know if she could issue checks payable to the
account of Mega Foam, instead of issuing the checks payable to CASH. Said customer had apparently been instructed by
Jacqueline Capitle to make check payments to Mega Foam payable to CASH. Around that time, Ricablanca also received
a phone call from an employee of Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The reason for
the call was to inform Capitle that the subject BDO check deposited in his account had been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking the latter to inform
Jacqueline Capitle about the phone call from Land Bank regarding the bounced check. Ricablanca explained that she had
to call and relay the message through Valencia, because the Capitles did not have a phone; but they could be reached
through Valencia, a neighbor and former co-employee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to ask Baby Aquino to
replace the check with cash. Valencia also told Ricablanca of a plan to take the cash and divide it equally into four: for
herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's accountant,
reported the matter to the owner of Mega Foam, Joseph Dyhengco.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed handed petitioner a
BDO check for P10,000.00 sometime in June 1997 as payment for her purchases from Mega Foam.[4] Baby Aquino
further testified that, sometime in July 1997, petitioner also called her on the phone to tell her that the BDO check
bounced.[5] Verification from company records showed that petitioner never remitted the subject check to Mega Foam.
However, Baby Aquino said that she had already paid Mega Foam P10,000.00 cash in August 1997 as replacement for
the dishonored check.[6]

Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his bank account, but
explained that the check came into his possession when some unknown woman arrived at his house around the first
week of July 1997 to have the check rediscounted. He parted with his cash in exchange for the check without even
bothering to inquire into the identity of the woman or her address. When he was informed by the bank that the check
bounced, he merely disregarded it as he didnt know where to find the woman who rediscounted the check.

Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked out an entrapment
operation with its agents. Ten pieces of P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent
powder by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked to pretend that she was going along
with Valencia's plan.

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then holding the bounced
BDO check, handed over said check to Ricablanca. They originally intended to proceed to Baby Aquino's place to have
the check replaced with cash, but the plan did not push through. However, they agreed to meet again on August 21,
2007.

On the agreed date, Ricablanca again went to petitioners house, where she met petitioner and Jacqueline Capitle.
Petitioner, her husband, and Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided not to go with
the group because she decided to go shopping. It was only petitioner, her husband, Ricablanca and Valencia who then
boarded petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the
premises of Baby Aquino, pretending that she was getting cash from Baby Aquino. However, the cash she actually
brought out from the premises was the P10,000.00 marked money previously given to her by Dyhengco. Ricablanca
divided the money and upon returning to the jeep, gave P5,000.00 each to Valencia and petitioner. Thereafter,
petitioner and Valencia were arrested by NBI agents, who had been watching the whole time.

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent powder on the
palmar and dorsal aspects of both of their hands. This showed that petitioner and Valencia handled the marked money.
The NBI filed a criminal case for qualified theft against the two and one Jane Doe who was later identified as Jacqueline
Capitle, the wife of Generoso Capitle.

The defense, on the other hand, denied having taken the subject check and presented the following scenario.

Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but claimed that she
had stopped collecting payments from Baby Aquino for quite some time before her resignation from the company. She
further testified that, on the day of the arrest, Ricablanca came to her mothers house, where she was staying at that
time, and asked that she accompany her (Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal
check-up at the Chinese General Hospital, Ricablanca decided to hitch a ride with the former and her husband in their
jeep going to Baby Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca asked them to wait in their
jeep, which they parked outside the house of Baby Aquino, and was very surprised when Ricablanca placed the money
on her lap and the NBI agents arrested them.

Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30, 1997. It was never
part of her job to collect payments from customers. According to her, on the morning of August 21, 1997, Ricablanca
called her up on the phone, asking if she (Valencia) could accompany her (Ricablanca) to the house of Baby Aquino.
Valencia claims that she agreed to do so, despite her admission during cross-examination that she did not know where
Baby Aquino resided, as she had never been to said house. They then met at the house of petitioner's mother, rode the
jeep of petitioner and her husband, and proceeded to Baby Aquino's place. When they arrived at said place, Ricablanca
alighted, but requested them to wait for her in the jeep. After ten minutes, Ricablanca came out and, to her surprise,
Ricablanca gave her money and so she even asked, What is this? Then, the NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its Decision, the
dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y Latosa, Anita Busog De
Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable doubt of the crime of QUALIFIED THEFT and each of
them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as
minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum.

SO ORDERED.[7]

The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the dispositive portion of which
reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:

(a) the sentence against accused Gemma Jacinto stands;

(b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor medium.

(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner Gemma Tubale Jacinto,
but the same was denied per Resolution dated March 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision and Resolution of
the CA. The issues raised in the petition are as follows:

1. Whether or not petitioner can be convicted of a crime not charged in the information;

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

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

reasonable doubt.[8]

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the elements of the crime of qualified
theft defined under Article 308, in relation to Article 310, both of the Revised Penal Code: (1) the taking of personal
property - as shown by the fact that petitioner, as collector for Mega Foam, did not remit the customer's check payment
to her employer and, instead, appropriated it for herself; (2) said property belonged to another the check belonged to
Baby Aquino, as it was her payment for purchases she made; (3) the taking was done with intent to gain this is presumed
from the act of unlawful taking and further shown by the fact that the check was deposited to the bank account of
petitioner's brother-in-law; (4) it was done without the owners consent petitioner hid the fact that she had received the
check payment from her employer's customer by not remitting the check to the company; (5) it was accomplished
without the use of violence or intimidation against persons, nor of force upon things the check was voluntarily handed
to petitioner by the customer, as she was known to be a collector for the company; and (6) it was done with grave abuse
of confidence petitioner is admittedly entrusted with the collection of payments from customers.

However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal property subject
of the theft must have some value, as the intention of the accused is to gain from the thing stolen. This is further
bolstered by Article 309, where the law provides that the penalty to be imposed on the accused is dependent on the
value of the thing stolen.

In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently
without value, as it was subsequently dishonored. Thus, the question arises on whether the crime of qualified theft was
actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals[9] is highly instructive and applicable to the present case. In Intod, the accused, intending to
kill a person, peppered the latters bedroom with bullets, but since the intended victim was not home at the time, no
harm came to him. The trial court and the CA held Intod guilty of attempted murder. But upon review by this Court, he
was adjudged guilty only of an impossible crime as defined and penalized in paragraph 2, Article 4, in relation to Article
59, both of the Revised Penal Code, because of the factual impossibility of producing the crime. Pertinent portions of
said provisions read as follows:

Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:

xxx

2. By any person performing an act which would be an offense against persons or property, were it not for the
inherent impossibility of its accomplishment or on account of the employment of inadequate to ineffectual means.
(emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought
are impossible. - When the person intending to commit an offense has already performed the acts for the execution of
the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one
of impossible accomplishment or because the means employed by such person are essentially inadequate to produce
the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the
offender, shall impose upon him the penalty of arresto mayor or a fine ranging from 200 to 500 pesos.

Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or
property; (2) that the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the
means employed was either inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the
intended crime under Article 4(2) of the Revised Penal Code was further explained by the Court in Intod[10] in this wise:
Under this article, the act performed by the offender cannot produce an offense against persons or property because:
(1) the commission of the offense is inherently impossible of accomplishment; or (2) the means employed is either (a)
inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment
is the focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature
one impossible of accomplishment. There must be either (1) legal impossibility, or (2) physical impossibility of
accomplishing the intended act in order to qualify the act as an impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.

xxxx

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended crime. x x x [11]

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his hand
in the coat pocket of another with the intention to steal the latter's wallet, but gets nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this case, petitioner
performed all the acts to consummate the crime of qualified theft, which is a crime against property. Petitioner's evil
intent cannot be denied, as the mere act of unlawfully taking the check meant for Mega Foam showed her intent to gain
or be unjustly enriched. Were it not for the fact that the check bounced, she would have received the face value thereof,
which was not rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being unfunded, a
fact unknown to petitioner at the time, that prevented the crime from being produced. The thing unlawfully taken by
petitioner turned out to be absolutely worthless, because the check was eventually dishonored, and Mega Foam had
received the cash to replace the value of said dishonored check.

The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which she thought was the cash
replacement for the dishonored check, is of no moment. The Court held in Valenzuela v. People[12] that under the
definition of theft in Article 308 of the Revised Penal Code, there is only one operative act of execution by the actor
involved in theft the taking of personal property of another. Elucidating further, the Court held, thus:

x x x Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the
language of the law that theft is already produced upon the tak[ing of] personal property of another without the latters
consent.

xxxx

x x x when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced
when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that
perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of
execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone
has already ensued from such acts of execution. x x x
xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender
gains possession of the thing, even if he has no opportunity to dispose of the same. x x x

x x x Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in its
consummated stage. x x x [13]

From the above discussion, there can be no question that as of the time that petitioner took possession of the check
meant for Mega Foam, she had performed all the acts to consummate the crime of theft, had it not been impossible of
accomplishment in this case. The circumstance of petitioner receiving the P5,000.00 cash as supposed replacement for
the dishonored check was no longer necessary for the consummation of the crime of qualified theft. Obviously, the plan
to convince Baby Aquino to give cash as replacement for the check was hatched only after the check had been
dishonored by the drawee bank. Since the crime of theft is not a continuing offense, petitioner's act of receiving the cash
replacement should not be considered as a continuation of the theft. At most, the fact that petitioner was caught
receiving the marked money was merely corroborating evidence to strengthen proof of her intent to gain.

Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash by its issuer is a
different and separate fraudulent scheme. Unfortunately, since said scheme was not included or covered by the
allegations in the Information, the Court cannot pronounce judgment on the accused; otherwise, it would violate the
due process clause of the Constitution. If at all, that fraudulent scheme could have been another possible source of
criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals, dated December 16, 2003,
and its Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE
CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is
sentenced to suffer the penalty of six (6) months of arrresto mayor, and to pay the costs.

SO ORDERED.
 EN BANC

ARISTOTEL VALENZUELA y G. R. No. 160188

NATIVIDAD,
Petitioner, Present:

PUNO, C.J.,
QUISUMBING,
SANTIAGO,
- versus - GUTIERREZ,
CARPIO,
MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, and
PEOPLE OF THE PHILIPPINES NACHURA, JJ.
and HON. COURT OF APPEALS,
Respondents.

Promulgated:
June 21, 2007

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DECISION

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes having
performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged guilty of
frustrated theft only, not the felony in its consummated stage of which he was convicted. The proposition rests on a
common theory expounded in two well-known decisions[1] rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases were found guilty. However, the rationale behind
the rulings has never been affirmed by this Court.

As far as can be told,[2] the last time this Court extensively considered whether an accused was guilty of frustrated or
consummated theft was in 1918, in People v. Adiao.[3] A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition
now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission under the
Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an Information[6] charging petitioner Aristotel
Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m.,
petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex
along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open parking area of
the supermarket. Lago saw petitioner, who was wearing an identification card with the mark Receiving Dispatching Unit
(RDU), hauling a push cart with cases of detergent of the well-known Tide brand. Petitioner unloaded these cases in an
open parking space, where Calderon was waiting. Petitioner then returned inside the supermarket, and after five (5)
minutes, emerged with more cartons of Tide Ultramatic and again unloaded these boxes to the same area in the open
parking space.[7]

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking
space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the
vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area. When
Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired
a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were apprehended at the
scene, and the stolen merchandise recovered.[8] The filched items seized from the duo were four (4) cases of Tide
Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an aggregate
value of P12,090.00.[9]

Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to
the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police
investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended by the security
guards at the scene and delivered to police custody at the Baler PNP Station in connection with the incident. However,
after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged
with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident.[10]

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent
bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago
and his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that on the
afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by his
neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks
inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them to head
out of the building to check what was

transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their
detention.[12] Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela,[13] had been at
the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw
the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running, at which
point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the security
office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the station,
petitioner denied having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the
prosecutors office where he was charged with theft.[14] During petitioners cross-examination, he admitted that he had
been employed as a bundler of GMS Marketing, assigned at the supermarket though not at SM.[15]

In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted
both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term
of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum.[17] The RTC found
credible the testimonies of the prosecution witnesses and established the convictions on the positive identification of
the accused as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a brief[19] with the Court of Appeals,
causing the appellate court to deem Calderons appeal as abandoned and consequently dismissed. Before the Court of
Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was apprehended,
he was never placed in a position to freely dispose of the articles stolen.[20] However, in its Decision dated 19 June
2003,[21] the Court of Appeals rejected this contention and affirmed petitioners conviction.[22] Hence the present
Petition for Review,[23] which expressly seeks that petitioners conviction be modified to only of Frustrated Theft.[24]

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual
participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged.[25] As
such, there is no cause for the Court to consider a factual scenario other than that presented by the prosecution, as
affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given facts, the theft
should be deemed as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites[26] two decisions rendered many years
ago by the Court of Appeals: People v. Dio[27] and People v. Flores.[28] Both decisions elicit the interest of this Court, as
they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears
similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the appellate
court did not expressly consider the import of the rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have not yet
been expressly adopted as precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on
our part, Dio and Flores have attained a level of renown reached by very few other appellate court rulings. They are
comprehensively discussed in the most popular of our criminal law annotations,[29] and studied in criminal law classes
as textbook examples of frustrated crimes or even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams
more than they actually occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could
profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario that
involves the thief having to exit with the stolen property through a supervised egress, such as a supermarket checkout
counter or a parking area pay booth, may easily call for the application of Dio and Flores. The fact that lower courts have
not hesitated to lay down convictions for frustrated theft further validates that Dio and Flores and the theories offered
therein on frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for us to examine
whether those theories are correct and should continue to influence prosecutors and judges in the future.

III.

To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to frustrated theft, it is
necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code.[30]

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is
consummated when all the elements necessary for its execution and accomplishment are present. It is frustrated when
the offender performs all the acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. Finally, it is attempted
when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or accident other than his own spontaneous
desistance.

Each felony under the Revised Penal Code has a subjective phase, or that portion of the acts constituting the crime
included between the act which begins the commission of the crime and the last act performed by the offender which,
with prior acts, should result in the consummated crime.[31] After that point has been breached, the subjective phase
ends and the objective phase begins.[32] It has been held that if the offender never passes the subjective phase of the
offense, the crime is merely attempted.[33] On the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, [s]ubjectively the crime is complete.[34]

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on
the other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a
felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime
under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a crime is
attempted only would need to compare the acts actually performed by the accused as against the acts that constitute
the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that
all of the acts of execution have been performed by the offender. The critical distinction instead is whether the felony
itself was actually produced by the acts of execution. The determination of whether the felony was produced after all
the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the statutory
definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in turn
unravel the particular requisite acts of execution and accompanying criminal intent.

The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an important characteristic of a crime,
that ordinarily, evil intent must unite with an unlawful act for there to be a crime, and accordingly, there can be no
crime when the criminal mind is wanting.[35] Accepted in this jurisdiction as material in crimes mala in se,[36] mens rea
has been defined before as a guilty mind, a guilty or wrongful purpose or criminal intent,[37] and essential for criminal
liability.[38] It follows that the statutory definition of our mala in se crimes must be able to supply what the mens rea of
the crime is, and indeed the U.S. Supreme Court has comfortably held that a criminal law that contains no mens rea
requirement infringes on constitutionally protected rights.[39] The criminal statute must also provide for the overt acts
that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also
be an actus reus.[40]

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. As
a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the law
expressly provide when the felony is produced. Without such provision, disputes would inevitably ensue on the
elemental question whether or not a crime was committed, thereby presaging the undesirable and legally dubious set-
up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does
not suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded which
attests when the felony is produced by the acts of execution. For example, the statutory definition of murder or
homicide expressly uses the phrase shall kill another, thus making it clear that the felony is produced by the death of the
victim, and conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled
out as follows:
Art. 308. Who 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 latters
consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or
object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and
without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm
products.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft
may be committed.[41] In the present discussion, we need to concern ourselves only with the general definition since it
was under it that the prosecution of the accused was undertaken and sustained. On the face of the definition, there is
only one operative act of execution by the actor involved in theft the taking of personal property of another. It is also
clear from the provision that in order that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without force upon things or violence against or
intimidation of persons; and it was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal
Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking
be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or force upon things.[42]

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as
defined by Gaius, was so broad enough as to encompass any kind of physical handling of property belonging to another
against the will of the owner,[43] a definition similar to that by Paulus that a thief handles (touches, moves) the property
of another.[44] However, with the Institutes of Justinian, the idea had taken hold that more than mere physical
handling, there must further be an intent of acquiring gain from the object, thus: [f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.[45] This requirement of animo lucrandi,
or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has since been abandoned in
Great Britain.[46]

In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful taking, to characterize theft. Justice
Regalado notes that the concept of apoderamiento once had a controversial interpretation and application. Spanish law
had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding that it had to be
coupled with the intent to appropriate the object in order to constitute apoderamiento; and to appropriate means to
deprive the lawful owner of the thing.[47] However, a conflicting line of cases decided by the Court of Appeals ruled,
alternatively, that there must be permanency in the taking[48] or an intent to permanently deprive the owner of the
stolen property;[49] or that there was no need for permanency in the taking or in its intent, as the mere temporary
possession by the offender or disturbance of the proprietary rights of the owner already constituted apoderamiento.[50]
Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no need of an intent to
permanently deprive the owner of his property to constitute an unlawful taking.[51]
So long as the descriptive circumstances that qualify the taking are present, including animo lucrandi and
apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at
least, that the transgression went beyond the attempted stage. As applied to the present case, the moment petitioner
obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by
intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction
for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the
Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once
the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, do not produce [such theft]
by reason of causes independent of the will of the perpetrator. There are clearly two determinative factors to consider:
that the felony is not produced, and that such failure is due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on
a doctrinal definition attaching to the individual felonies in the Revised Penal Code[52] as to when a particular felony is
not produced, despite the commission of all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is
the felony of theft produced. Parsing through the statutory definition of theft under Article 308, there is one apparent
answer provided in the language of the law that theft is already produced upon the tak[ing of] personal property of
another without the latters consent.

U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was charged with theft after he
abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom House.
At no time was the accused able to get the merchandise out of the Custom House, and it appears that he was under
observation during the entire transaction.[54] Based apparently on those two circumstances, the trial court had found
him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding
instead that the accused was guilty of consummated theft, finding that all the elements of the completed crime of theft
are present.[55] In support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the
Supreme Court of Spain, the discussion of which we replicate below:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the
fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but
sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen
who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court
of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account
of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while
the defendant was still inside the church, the offended party got back the money from the defendant. The court said
that the defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the
Supreme Court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case
took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20
centimos, and then he placed the money over the cover of the case; just at this moment he was caught by two guards
who were stationed in another room near-by. The court considered this as consummated robbery, and said: "[x x x] The
accused [x x x] having materially taken possession of the money from the moment he took it from the place where it had
been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to
constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated, which,
however, does not go to make the elements of the consummated crime." (Decision of the Supreme Court of Spain, June
13, 1882.)[56]

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all
these cases had been able to obtain full possession of the personal property prior to their apprehension. The interval
between the commission of the acts of theft and the apprehension of the thieves did vary, from sometime later in the
1898 decision; to the very moment the thief had just extracted the money in a purse which had been stored as it was in
the 1882 decision; and before the thief had been able to spirit the item stolen from the building where the theft took
place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as
it was ruled that the thefts in each of those cases was consummated by the actual possession of the property belonging
to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than
consummated theft. The case is People v. Sobrevilla,[57] where the accused, while in the midst of a crowd in a public
market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the theft,
caught hold of the [accused]s shirt-front, at the same time shouting for a policeman; after a struggle, he recovered his
pocket-book and let go of the defendant, who was afterwards caught by a policeman.[58] In rejecting the contention
that only frustrated theft was established, the Court simply said, without further comment or elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that
determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the
[accuseds] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book.[59]

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact
that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary,
was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case.
Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on when
theft is consummated, as reflected in the Dio and Flores decisions.

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused
therein, a driver employed by the United States Army, had driven his truck into the port area of the South Harbor, to
unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away his
truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who
inspected the truck and found therein three boxes of army rifles. The accused later contended that he had been stopped
by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he
had passed the checkpoint. The trial court convicted accused of consummated theft, but the Court of Appeals modified
the conviction, holding instead that only frustrated theft had been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles pass
through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would
be allowed to pass through the check point without further investigation or checking.[60] This point was deemed
material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that the fact
determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or
less momentary.[61] Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24
January 1888 (1888 decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de
hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera
sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede decirse en
realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena.[62]

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the
culprits, the articles stolen must first be passed through the M.P. check point, but since the offense was opportunely
discovered and the articles seized after all the acts of execution had been performed, but before the loot came under
the final control and disposal of the looters, the offense can not be said to have been fully consummated, as it was
frustrated by the timely intervention of the guard. The offense committed, therefore, is that of frustrated theft.[63]

Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of
apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by
the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it,
bore no substantial variance between the circumstances [herein] and in [Dio].[64] Such conclusion is borne out by the
facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt
for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal
of the stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of
the terminal. However, the guards insisted on inspecting the van, and discovered that the empty sea van had actually
contained other merchandise as well.[65] The accused was prosecuted for theft qualified by abuse of confidence, and
found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative that
he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of
spontaneous desistance on the part of the accused that literally frustrated the theft. However, the Court of Appeals,
explicitly relying on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found no substantial variance between Dio and Flores then before it.
The prosecution in Flores had sought to distinguish that case from Dio, citing a traditional ruling which unfortunately
was not identified in the decision itself. However, the Court of Appeals pointed out that the said traditional ruling was
qualified by the words is placed in a situation where [the actor] could dispose of its contents at once.[66] Pouncing on
this qualification, the appellate court noted that [o]bviously, while the truck and the van were still within the compound,
the petitioner could not have disposed of the goods at once. At the same time, the Court of Appeals conceded that [t]his
is entirely different from the case where a much less bulk and more common thing as money was the object of the
crime, where freedom to dispose of or make use of it is palpably less restricted,[67] though no further qualification was
offered what the effect would have been had that alternative circumstance been present instead.

Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was
produced is the ability of the actor to freely dispose of the articles stolen, even if it were only momentary. Such
conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in determining
whether theft had been consummated, es preciso que so haga en circunstancias tales que permitan al sustractor de
aquella, siquiera sea mas o menos momentaneamente. The qualifier siquiera sea mas o menos momentaneamente
proves another important consideration, as it implies that if the actor was in a capacity to freely dispose of the stolen
items before apprehension, then the theft could be deemed consummated. Such circumstance was not present in either
Dio or Flores, as the stolen items in both cases were retrieved from the actor before they could be physically extracted
from the guarded compounds from which the items were filched. However, as implied in Flores, the character of the
item stolen could lead to a different conclusion as to whether there could have been free disposition, as in the case
where the chattel involved was of much less bulk and more common x x x, [such] as money x x x.[68]

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dio ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the stolen
articles even if it were more or less momentary. Or as stated in another case[[69]], theft is consummated upon the
voluntary and malicious taking of property belonging to another which is realized by the material occupation of the thing
whereby the thief places it under his control and in such a situation that he could dispose of it at once. This ruling seems
to have been based on Viadas opinion that in order the theft may be consummated, es preciso que se haga en
circumstancias x x x [[70]][71]

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that [i]n theft or
robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the
same, although his act of making use of the thing was frustrated.[72]

There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores rulings.
People v. Batoon[73] involved an accused who filled a container with gasoline from a petrol pump within view of a
police detective, who followed the accused onto a passenger truck where the arrest was made. While the trial court
found the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was guilty of
consummated qualified theft, finding that [t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to consummate the crime of theft.[74]

In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a supply depot and loaded them
onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military
Police running the checkpoint. Even though those facts clearly admit to similarity with those in Dio, the Court of Appeals
held that the accused were guilty of consummated theft, as the accused were able to take or get hold of the hospital
linen and that the only thing that was frustrated, which does not constitute any element of theft, is the use or benefit
that the thieves expected from the commission of the offense.[76]

In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that [w]hen the meaning of an element
of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that felony.[77]
Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the question
can even be asked whether there is really such a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we
undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.[78]

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation,
in the act of gathering and tying some coconuts. The accused were surprised by the owner within the plantation as they
were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the coconuts they had
seized, and were subsequently arrested after the owner reported the incident to the police. After trial, the accused were
convicted of qualified theft, and the issue they raised on appeal was that they were guilty only of simple theft. The Court
affirmed that the theft was qualified, following Article 310 of the Revised Penal Code,[79] but further held that the
accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was
raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only two
sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the
acts of execution which should have produced the felony as a consequence. They were not able to carry the coconuts
away from the plantation due to the timely arrival of the owner.[80]

No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may
have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors were not able to perform all the acts of execution
which should have produced the felon as a consequence.[81] However, per Article 6 of the Revised Penal Code, the
crime is frustrated when the offender performs all the acts of execution, though not producing the felony as a result. If
the offender was not able to perform all the acts of execution, the crime is attempted, provided that the non-
performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that the
crime was frustrated because not all of the acts of execution were performed due to the timely arrival of the owner.
However, following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only
attempted, especially given that the acts were not performed because of the timely arrival of the owner, and not
because of spontaneous desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences
we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such passage bears no
reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential thought. Instead, the
passage is offered as if it were sourced from an indubitable legal premise so settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see
how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had once
deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for frustrated
theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also by the fact
that it has not been entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction.
Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious argument to
persuade us in this case. Insofar as Empelis may imply that convictions for frustrated theft are beyond cavil in this
jurisdiction, that decision is subject to reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place. The
definition of the crime of theft, as provided then, read as follows:

Son reos de hurto:

1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman las cosas
muebles ajenas sin la voluntad de su dueo.

2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos previstos en los
artculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed
down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under the Codigo
Penal Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de lucro, tomare las cosas muebles
ajenas sin la voluntad de su dueo ser castigado[82]

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la libre disposicion of the property is not
an element or a statutory characteristic of the crime. It does appear that the principle originated and perhaps was
fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de
Espaa. Therein, he raised at least three questions for the reader whether the crime of frustrated or consummated theft
had occurred. The passage cited in Dio was actually utilized by Viada to answer the question whether frustrated or
consummated theft was committed [e]l que en el momento mismo de apoderarse de la cosa ajena, vindose
sorprendido, la arroja al suelo.[83] Even as the answer was as stated in Dio, and was indeed derived from the 1888
decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was apparently very
different from Dio, for it appears that the 1888 decision involved an accused who was surprised by the employees of a
haberdashery as he was abstracting a layer of clothing off a mannequin, and who then proceeded to throw away the
garment as he fled.[84]

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme Court
of Spain that have held to that effect.[85] A few decades later, the esteemed Eugenio Cuello Caln pointed out the
inconsistent application by the Spanish Supreme Court with respect to frustrated theft.

Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro que
los conducia a otro que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervencin de la
policia situada en el local donde se realiz la sustraccin que impidi pudieran los reos disponer de lo sustrado, 30 de
octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12
abril 1930; hay frustracin "muy prxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la
sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia de frustracin cuando, perseguido el culpable o
sorprendido en el momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo
1921; esta doctrina no es admissible, stos, conforme a lo antes expuesto, son hurtos consumados.[86]

Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la
disposicin del agente. Con este criterio coincide la doctrina sentada ltimamente porla jurisprudencia espaola que
generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y sta quede por tiempo ms o
menos duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es indiferente. El delito no
pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe
la frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume
efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos
delitos consumados.[87] (Emphasis supplied)

Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish Supreme
Court decisions on the matter, Cuello Caln actually set forth his own thought that questioned whether theft could truly
be frustrated, since pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume
efectivamente. Otherwise put, it would be difficult to foresee how the execution of all the acts necessary for the
completion of the crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to
accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is no crime of frustrated
theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of Cuello Calns
position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective, as
we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to accept that theft is
capable of commission in its frustrated stage. Further, if we ask the question whether there is a mandate of statute or
precedent that must compel us to adopt the Dio and Flores doctrines, the answer has to be in the negative. If we did so,
it would arise not out of obeisance to an inexorably higher command, but from the exercise of the function of statutory
interpretation that comes as part and parcel of judicial review, and a function that allows breathing room for a variety of
theorems in competition until one is ultimately adopted by this Court.

V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through
statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of the
sovereign people, which determines which acts or combination of acts are criminal in nature. Judicial interpretation of
penal laws should be aligned with what was the evident legislative intent, as expressed primarily in the language of the
law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment.[88] The
courts cannot arrogate the power to introduce a new element of a crime which was unintended by the legislature, or
redefine a crime in a manner that does not hew to the statutory language. Due respect for the prerogative of Congress
in defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws where a narrow
interpretation is appropriate. The Court must take heed of language, legislative history and purpose, in order to strictly
determine the wrath and breath of the conduct the law forbids.[89]

With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely dispose of
the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308,
whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To restate what
this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal
Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be
done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or force upon things.[90]

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal
property of another without the latters consent. While the Dio/Flores dictum is considerate to the mindset of the
offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender,
compounded by the deprivation of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again,
when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced
when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that
perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of
execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone
has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquinos commentaries, as
earlier cited, that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing
with intent to appropriate the same, although his act of making use of the thing was frustrated.[91]

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of
taking itself, in that there could be no true taking until the actor obtains such degree of control over the stolen item. But
even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it
would mean that not all the acts of execution have not been completed, the taking not having been accomplished.
Perhaps this point could serve as fertile ground for future discussion, but our concern now is whether there is indeed a
crime of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue
will not apply to the facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the
petitioner was completed in this case. With intent to gain, he acquired physical possession of the stolen cases of
detergent for a considerable period of time that he was able to drop these off at a spot in the parking lot, and long
enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no opportunity to dispose of the same.[92] And long ago, we
asserted in People v. Avila:[93]

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical
power of the thief, which idea is qualified by other conditions, such as that the taking must be effected animo lucrandi
and without the consent of the owner; and it will be here noted that the definition does not require that the taking
should be effected against the will of the owner but merely that it should be without his consent, a distinction of no
slight importance.[94]

Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking, which is
the deprivation of ones personal property, is the element which produces the felony in its consummated stage. At the
same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a
frustrated stage. Theft can only be attempted or consummated.

Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained
possession over the stolen items, the effect of the felony has been produced as there has been deprivation of property.
The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the
owners have already been deprived of their right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of the
stolen property frustrates the theft would introduce a convenient defense for the accused which does not reflect any
legislated intent,[95] since the Court would have carved a viable means for offenders to seek a mitigated penalty under
applied circumstances that do not admit of easy classification. It is difficult to formulate definite standards as to when a
stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at
the time of the commission of the crime, as implied in Dio?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property,
the location of the property, the number and identity of people present at the scene of the crime, the number and
identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the manner in
which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of
the stolen item would come into account, relevant as that would be on whether such property is capable of free disposal
at any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed
deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the
presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have
been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the effect
could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been performed. But
once all these acts have been executed, the taking has been completed, causing the unlawful deprivation of property,
and ultimately the consummation of the theft.

Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated
framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such fashion as
to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the free
disposition of the items stolen is in any way determinative of whether the crime of theft has been produced. Dio itself
did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in
relying on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their
erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds true of Empilis, a
regrettably stray decision which has not since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the
success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be denied, for we decline to
adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be no frustrated
theft under the Revised Penal Code does not detract from the correctness of this conclusion. It will take considerable
amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada yields
to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.
 Republic of the Philippines

SUPREME COURT

Manila

FIRST DIVISION

G.R. Nos. 86883-85 January 29, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

NORBERTO MANERO, JR., EDILBERTO MANERO, ELPIDIO MANERO, SEVERINO LINES, RUDY LINES, EFREN PLEAGO,
ROGER BEDAO, RODRIGO ESPIA, ARSENIO VILLAMOR, JR., JOHN DOE and PETER DOE, accused.

SEVERINO LINES, RUDY LINES, EFREN PLEAGO and ROGER BENDAO, accused-appellants.

The Solicitor General for plaintiff-appellee.

Romeo P. Jorge for accused-appellants.

BELLOSILLO, J.:

This was gruesome murder in a main thoroughfare an hour before sundown. A hapless foreign religious minister was
riddled with bullets, his head shattered into bits and pieces amidst the revelling of his executioners as they danced and
laughed around their quarry, chanting the tune "Mutya Ka Baleleng", a popular regional folk song, kicking and scoffing at
his prostrate, miserable, spiritless figure that was gasping its last. Seemingly unsatiated with the ignominy of their
manslaughter, their leader picked up pieces of the splattered brain and mockingly displayed them before horrified
spectators. Some accounts swear that acts of cannibalism ensued, although they were not sufficiently demonstrated.
However, for their outrageous feat, the gangleader already earned the monicker "cannibal priest-killer" But, what is
indubitable is that Fr. Tulio Favali1 was senselessly killed for no apparent reason than that he was one of the Italian
Catholic missionaries laboring in heir vineyard in the hinterlands of Mindanao.2

In the aftermath of the murder, police authorities launched a massive manhunt which resulted in the capture of the
perpetrators except Arsenio Villamor, Jr., and two unidentified persons who eluded arrest and still remain at large.

Informations for Murder,3 Attempted Murder4 and Arson5 were accordingly filed against those responsible for the
frenzied orgy of violence that fateful day of 11 April 1985. As these cases arose from the same occasion, they were all
consolidated in Branch 17 of the Regional Trial Court of Kidapawan, Cotabato.6

After trial, the court a quo held

WHEREFORE . . . the Court finds the accused Norberto Manero, Jr. alias Commander Bucay, Edilberto Manero alias Edil,
Elpidio Manero, Severino Lines, Rudy Lines, Rodrigo Espia alias Rudy, Efren Pleago and Roger Bedao GUILTY beyond
reasonable doubt of the offense of Murder, and with the aggravating circumstances of superior strength and treachery,
hereby sentences each of them to a penalty of imprisonment of reclusion perpetua; to pay the Pontifical Institute of
Foreign Mission (PIME) Brothers, the congregation to which Father Tulio Favali belonged, a civil indemnity of
P12,000.00; attorney's fees in the sum of P50,000.00 for each of the eight (8) accused or a total sum of P400,000.00;
court appearance fee of P10,000.00 for every day the case was set for trial; moral damages in the sum of P100,000.00;
and to pay proportionately the costs.

Further, the Court finds the accused Norberto Manero, Jr. alias Commander Bucay GUILTY beyond reasonable doubt of
the offense of Arson and with the application of the Indeterminate Sentence Law, hereby sentences him to an
indeterminate penalty of imprisonment of not less than four (4) years, nine (9) months, one (1) day of prision
correccional, as minimum, to six (6) years of prision correccional, as maximum, and to indemnify the Pontifical Institute
of Foreign Mission (PIME) Brothers, the congregation to which Father Tulio Favali belonged, the sum of P19,000.00
representing the value of the motorcycle and to pay the costs.

Finally, the Court finds the accused Norberto Manero, Jr., alias Commander Bucay, Edilberto Manero alias Edil, Elpidio
Manero, Severino Lines, Rudy Lines, Rodrigo Espia alias Rudy, Efren Pleago and Roger Bedao GUILTY beyond
reasonable doubt of the offense of Attempted Murder and with the application of the Indeterminate Sentence Law,
hereby sentences each of them to an indeterminate penalty of imprisonment of not less than two (2) years, four (4)
months and one (1) day of prision correccional, and minimum, to eight (8) years and twenty (20) days of prision mayor,
as maximum, and to pay the complainant Rufino Robles the sum of P20,000.00 as attorney's fees and P2,000.00 as court
appearance fee for every day of trial and to pay proportionately the costs.

The foregoing penalties shall be served by the said accused successively in the order of their respective severity in
accordance with the provisions of Article 70 of the Revised Penal Code, as amended.7

From this judgment of conviction only accused Severino Lines, Rudy Lines, Efren Pleago and Roger Bedao appealed
with respect to the cases for Murder and Attempted Murder. The Manero brothers as well as Rodrigo Espia did not
appeal; neither did Norberto Manero, Jr., in the Arson case. Consequently, the decision as against them already became
final.

Culled from the records, the facts are: On 11 April 1985, around 10:00 o'clock in the morning, the Manero brothers
Norberto Jr., Edilberto and Elpidio, along with Rodrigo Espia, Severino Lines, Rudy Lines, Efren Pleago and Roger
Bedao, were inside the eatery of one Reynaldo Diocades at Km. 125, La Esperanza, Tulunan, Cotabato. They were
conferring with Arsenio Villamor, Jr., private secretary to the Municipal Mayor of Tulunan, Cotabato, and his two (2)
unidentified bodyguards. Plans to liquidate a number of suspected communist sympathizers were discussed. Arsenio
Villamor, Jr. scribbled on a cigarette wrapper the following "NPA v. NPA, starring Fr. Peter, Domingo Gomez, Bantil, Fred
Gapate, Rene alias Tabagac and Villaning." "Fr. Peter" is Fr. Peter Geremias, an Italian priest suspected of having links
with the communist movement; "Bantil" is Rufino Robles, a Catholic lay leader who is the complaining witness in the
Attempted Murder; Domingo Gomez is another lay leader, while the others are simply "messengers". On the same
occasion, the conspirators agreed to Edilberto Manero's proposal that should they fail to kill Fr. Peter Geremias, another
Italian priest would be killed in his stead.8

At about 1:00 o'clock that afternoon, Elpidio Manero with two (2) unidentified companions nailed a placard on a street-
post beside the eatery of Deocades. The placard bore the same inscriptions as those found on the cigarette wrapper
except for the additional phrase "versus Bucay, Edil and Palo." Some two (2) hours later, Elpidio also posted a wooden
placard bearing the same message on a street cross-sign close to the eatery.9

Later, at 4:00 o'clock, the Manero brothers, together with Espia and the four (4) appellants, all with assorted firearms,
proceeded to the house of "Bantil", their first intended victim, which was also in the vicinity of Deocades' carinderia.
They were met by "Bantil" who confronted them why his name was included in the placards. Edilberto brushed aside the
query; instead, he asked "Bantil" if he had any qualms about it, and without any provocation, Edilberto drew his revolver
and fired at the forehead of "Bantil". "Bantil" was able to parry the gun, albeit his right finger and the lower portion of
his right ear were hit. Then they grappled for its possession until "Bantil" was extricated by his wife from the fray. But, as
he was running away, he was again fired upon by Edilberto. Only his trousers were hit. "Bantil" however managed to
seek refuge in the house of a certain Domingo Gomez. 10 Norberto, Jr., ordered his men to surround the house and not
to allow any one to get out so that "Bantil" would die of hemorrhage. Then Edilberto went back to the restaurant of
Deocades and pistol-whipped him on the face and accused him of being a communist coddler, while appellants and their
cohorts relished the unfolding drama. 11

Moments later, while Deocades was feeding his swine, Edilberto strewed him with a burst of gunfire from his M-14
Armalite. Deocades cowered in fear as he knelt with both hands clenched at the back of his head. This again drew
boisterous laughter and ridicule from the dreaded desperados.

At 5:00 o'clock, Fr. Tulio Favali arrived at Km. 125 on board his motorcycle. He entered the house of Gomez. While
inside, Norberto, Jr., and his co-accused Pleago towed the motorcycle outside to the center of the highway. Norberto,
Jr., opened the gasoline tank, spilled some fuel, lit a fire and burned the motorcycle. As the vehicle was ablaze, the
felons raved and rejoiced. 12

Upon seeing his motorcycle on fire, Fr. Favali accosted Norberto, Jr. But the latter simply stepped backwards and
executed a thumbs-down signal. At this point, Edilberto asked the priest: "Ano ang gusto mo, padre (What is it you want,
Father)? Gusto mo, Father, bukon ko ang ulo mo (Do you want me, Father, to break your head)?" Thereafter, in a flash,
Edilberto fired at the head of the priest. As Fr. Favali dropped to the ground, his hands clasped against his chest,
Norberto, Jr., taunted Edilberto if that was the only way he knew to kill a priest. Slighted over the remark, Edilberto
jumped over the prostrate body three (3) times, kicked it twice, and fired anew. The burst of gunfire virtually shattered
the head of Fr. Favali, causing his brain to scatter on the road. As Norberto, Jr., flaunted the brain to the terrified
onlookers, his brothers danced and sang "Mutya Ka Baleleng" to the delight of their comrades-in-arms who now took
guarded positions to isolate the victim from possible assistance. 13

In seeking exculpation from criminal liability, appellants Severino Lines, Rudy Lines, Efren Pleago and Roger Bedao
contend that the trial court erred in disregarding their respective defenses of alibi which, if properly appreciated, would
tend to establish that there was no prior agreement to kill; that the intended victim was Fr. Peter Geremias, not Fr. Tulio
Favali; that there was only one (1) gunman, Edilberto; and, that there was absolutely no showing that appellants
cooperated in the shooting of the victim despite their proximity at the time to Edilberto.

But the evidence on record does not agree with the arguments of accused-appellants.

On their defense of alibi, accused brothers Severino and Rudy Lines claim that they were harvesting palay the whole day
of 11 April 1985 some one kilometer away from the crime scene. Accused Roger Bedao alleges that he was on an
errand for the church to buy lumber and nipa in M'lang, Cotabato, that morning of 11 April 1985, taking along his wife
and sick child for medical treatment and arrived in La Esperanza, Tulunan, past noontime.

Interestingly, all appellants similarly contend that it was only after they heard gunshots that they rushed to the house of
Norberto Manero, Sr., Barangay Captain of La Esperanza, where they were joined by their fellow CHDF members and co-
accused, and that it was only then that they proceeded together to where the crime took place at Km. 125.

It is axiomatic that the accused interposing the defense of alibi must not only be at some other place but that it must
also be physically impossible for him to be at the scene of the crime at the time of its commission. 14

Considering the failure of appellants to prove the required physical impossibility of being present at the crime scene, as
can be readily deduced from the proximity between the places where accused-appellants were allegedly situated at the
time of the commission of the offenses and the locus criminis, 15 the defense of alibi is definitely feeble. 16 After all, it
has been the consistent ruling of this Court that no physical impossibility exists in instances where it would take the
accused only fifteen to twenty minutes by jeep or tricycle, or some one-and-a-half hours by foot, to traverse the
distance between the place where he allegedly was at the time of commission of the offense and the scene of the crime.
17 Recently, we ruled that there can be no physical impossibility even if the distance between two places is merely two
(2) hours by bus. 18 More important, it is well-settled that the defense of alibi cannot prevail over the positive
identification of the authors of the crime by the prosecution witnesses. 19

In the case before Us, two (2) eyewitnesses, Reynaldo Deocades and Manuel Bantolo, testified that they were both
inside the eatery at about 10:00 o'clock in the morning of 11 April 1985 when the Manero brothers, together with
appellants, first discussed their plan to kill some communist sympathizers. The witnesses also testified that they still saw
the appellants in the company of the Manero brothers at 4:00 o'clock in the afternoon when Rufino Robles was shot.
Further, at 5:00 o'clock that same afternoon, appellants were very much at the scene of the crime, along with the
Manero brothers, when Fr. Favali was brutally murdered. 20 Indeed, in the face of such positive declarations that
appellants were at the locus criminis from 10:00 o'clock in the morning up to about 5:00 o'clock in the afternoon, the
alibi of appellants that they were somewhere else, which is negative in nature, cannot prevail. 21 The presence of
appellants in the eatery at Km. 125 having been positively established, all doubts that they were not privy to the plot to
liquidate alleged communist sympathizers are therefore removed. There was direct proof to link them to the conspiracy.

There is conspiracy when two or more persons come to an agreement to commit a crime and decide to commit it. 22 It
is not essential that all the accused commit together each and every act constitutive of the offense. 23 It is enough that
an accused participates in an act or deed where there is singularity of purpose, and unity in its execution is present. 24

The findings of the court a quo unmistakably show that there was indeed a community of design as evidenced by the
concerted acts of all the accused. Thus

The other six accused, 25 all armed with high powered firearms, were positively identified with Norberto Manero, Jr.
and Edilberto Manero in the carinderia of Reynaldo Deocades in La Esperanza, Tulunan, Cotabato at 10:00 o'clock in the
morning of 11 April 1985 morning . . . they were outside of the carinderia by the window near the table where Edilberto
Manero, Norberto Manero, Jr., Jun Villamor, Elpidio Manero and unidentified members of the airborne from Cotabato
were grouped together. Later that morning, they all went to the cockhouse nearby to finish their plan and drink tuba.
They were seen again with Edilberto Manero and Norberto Manero, Jr., at 4:00 o'clock in the afternoon of that day near
the house of Rufino Robles (Bantil) when Edilberto Manero shot Robles. They surrounded the house of Domingo Gomez
where Robles fled and hid, but later left when Edilberto Manero told them to leave as Robles would die of hemorrhage.
They followed Fr. Favali to Domingo Gomez' house, witnessed and enjoyed the burning of the motorcycle of Fr. Favali
and later stood guard with their firearms ready on the road when Edilberto Manero shot to death Fr. Favali. Finally, they
joined Norberto Manero, Jr. and Edilberto Manero in their enjoyment and merriment on the death of the priest. 26

From the foregoing narration of the trial court, it is clear that appellants were not merely innocent bystanders but were
in fact vital cogs in perpetrating the savage murder of Fr. Favali and the attempted murder of Rufino Robles by the
Manero brothers and their militiamen. For sure, appellants all assumed a fighting stance to discourage if not prevent any
attempt to provide assistance to the fallen priest. They surrounded the house of Domingo Gomez to stop Robles and the
other occupants from leaving so that the wounded Robles may die of hemorrhage. 27 Undoubtedly, these were overt
acts to ensure success of the commission of the crimes and in furtherance of the aims of the conspiracy. The appellants
acted in concert in the murder of Fr. Favali and in the attempted murder of Rufino Robles. While accused-appellants
may not have delivered the fatal shots themselves, their collective action showed a common intent to commit the
criminal acts.

While it may be true that Fr. Favali was not originally the intended victim, as it was Fr. Peter Geremias whom the group
targetted for the kill, nevertheless, Fr. Favali was deemed a good substitute in the murder as he was an Italian priest. On
this, the conspirators expressly agreed. As witness Manuel Bantolo explained 28

Q Aside from those persons listed in that paper to be killed, were there other persons who were to be liquidated?

A There were some others.

Q Who were they?

A They said that if they could not kill those persons listed in that paper then they will (sic) kill anyone so long as he
is (sic) an Italian and if they could not kill the persons they like to kill they will (sic) make Reynaldo Deocades as their
sample.

That appellants and their co-accused reached a common understanding to kill another Italian priest in the event that Fr.
Peter Geremias could not be spotted was elucidated by Bantolo thus 29

Q Who suggested that Fr. Peter be the first to be killed?

A All of them in the group.

Q What was the reaction of Norberto Manero with respect to the plan to kill Fr. Peter?

A He laughed and even said, "amo ina" meaning "yes, we will kill him ahead."

xxx xxx xxx

Q What about Severino Lines? What was his reaction?

A He also laughed and so conformed and agreed to it.

Q Rudy Lines.

A He also said "yes".

Q What do you mean "yes"?

A He also agreed and he was happy and said "yes" we will kill him.

xxx xxx xxx

Q What about Efren Pleago?

A He also agreed and even commented laughing "go ahead".

Q Roger Bedao, what was his reaction to that suggestion that should they fail to kill Fr. Peter, they will (sic) kill
anybody provided he is an Italian and if not, they will (sic) make Reynaldo Deocades an example?

A He also agreed laughing.

Conspiracy or action in concert to achieve a criminal design being sufficiently shown, the act of one is the act of all the
other conspirators, and

the precise extent or modality of participation of each of them becomes secondary. 30

The award of moral damages in the amount of P100,000.00 to the congregation, the Pontifical Institute of Foreign
Mission (PIME) Brothers, is not proper. There is nothing on record which indicates that the deceased effectively severed
his civil relations with his family, or that he disinherited any member thereof, when he joined his religious congregation.
As a matter of fact, Fr. Peter Geremias of the same congregation, who was then a parish priest of Kidapawan, testified
that "the religious family belongs to the natural family of origin." 31 Besides, as We already held, 32 a juridical person is
not entitled to moral damages because, not being a natural person, it cannot experience physical suffering or such
sentiments as wounded feelings, serious anxiety, mental anguish or moral shock. It is only when a juridical person has a
good reputation that is debased, resulting in social humiliation, that moral damages may be awarded.

Neither can We award moral damages to the heirs of the deceased who may otherwise be lawfully entitled thereto
pursuant to par. (3), Art. 2206, of the Civil Code, 33 for the reason that the heirs never presented any evidence showing
that they suffered mental anguish; much less did they take the witness stand. It has been held 34 that moral damages
and their causal relation to the defendant's acts should be satisfactorily proved by the claimant. It is elementary that in
order that moral damages may be awarded there must be proof of moral suffering. 35 However, considering that the
brutal slaying of Fr. Tulio Favali was attended with abuse of superior strength, cruelty and ignominy by deliberately and
inhumanly augmenting the pain and anguish of the victim, outraging or scoffing at his person or corpse, exemplary
damages may be awarded to the lawful heirs, 36 even though not proved nor expressly pleaded in the complaint, 37 and
the amount of P100,000.00 is considered reasonable.

With respect to the civil indemnity of P12,000.00 for the death of Fr. Tulio Favali, the amount is increased to P50,000.00
in accordance with existing jurisprudence, which should be paid to the lawful heirs, not the PIME as the trial court ruled.

WHEREFORE, the judgment appealed from being in accord with law and the evidence is AFFIRMED with the modification
that the civil indemnity which is increased from P12,000.00 to P50,000.00 is awarded to the lawful heirs of the deceased
plus exemplary damages of P100,000.00; however, the award of moral damages is deleted.

Costs against accused-appellants.

SO ORDERED.
 SECOND DIVISION

[G.R. No. 132330. November 28, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1 JOSE BANGCADO[1] and PO3 CESAR BANISA, accused-
appellants.

DECISION

BELLOSILLO, J.:

SPO1 JOSE BANGCADO and PO3 CESAR BANISA appeal from the decision of the Regional Trial Court of Baguio City
convicting them of two (2) counts of murder and two (2) counts of frustrated murder, imposing upon them the
corresponding prison terms, and to pay damages plus costs.[2]

The facts: On 27 June 1993, at around 8:30 in the evening, Pacson Cogasi, Julio Clemente, Leandro Adawan and Richard
Lino were at the Skyview Restaurant, Magsaysay Avenue, Baguio City, drinking and listening to folksongs. Moments
later, a group of five (5) arrived and sat one table away from Pacson Cogasi and his friends. Among the newcomers was a
thin person wearing a blue long-sleeved jacket, later identified as SPO1 Jose Bangcado, and a heavier one wearing a t-
shirt and maong pants, later identified as PO3 Cesar Banisa. The rest of their group were not identified.

At that time, members of the police force of Baguio City were conducting Operation Kapkap at the Skyview Restaurant.
They however exempted the table of PO3 Cesar Banisa as they knew him to be a fellow policeman.

At around 9:00 o'clock that evening, Cogasi and his friends left the restaurant to go home. They were residents of La
Trinidad, Benguet. As they went behind the restaurant where their Ford Fierra was parked, they noticed SPO1 Jose
Bangcado and PO3 Cesar Banisa following them. Cogasi and his group recognized Bangcado and Banisa to be customers
at Skyview Restaurant. Bangcado and Banisa approached them. First, Banisa asked Richard Lino for a light. Then
Bangcado and Banisa asked the group if they were willing to be frisked. Since the two (2) police officers were armed with
handguns and smelled of liquor, the group agreed to be frisked. As Leandro Adawan stepped aside to urinate, Bangcado
slapped him and then asked the group where they came from. Their answer was, from Besao, Mt. Province, except
Clemente who said that he came from Balili, La Trinidad. Bangcado, with Banisa standing guard behind him with a drawn
gun, ordered Cogasi, Clemente, Adawan and Lino to form a line against the Ford Fierra facing him in that order. Adawan
was only one meter away from Bangcado. Lino and Cogasi were about 1-1/2 meters away, while Clemente, four (4)
meters away. Without any warning, Bangcado suddenly fired his gun in quick succession at the four (4) persons lined up
against the Ford Fierra. Cogasi saw Adawan and Lino fall down. Cogasi then felt he was hit on the left side of his neck
and he also fell down. He managed however to crawl away and run to the Hilltop where he was able to ask for help
before falling unconscious.

Cogasi woke up to find himself confined at the Baguio General Hospital together with Clemente. There Cogasi learned
that Lino and Adawan died from gunshot wounds in their heads. Cogasi himself suffered a gunshot wound at the neck,
at the junction of his left jaw near the ear, while Clemente received two (2) gunshot wounds on his right shoulder with
one (1) of the bullets being lodged just below his right eye.

After their release from the hospital, Cogasi and Clemente filed a complaint with the NBI in Baguio City. On 8 July 1993,
four (4) civilian males were presented to Cogasi for identification by the NBI, but he told them that the suspects were
not among those present. Clemente did not participate in the identification process because of his eye injury.

In the morning of 10 July 1993 Bangcado and Banisa reported for their regular rank inspection at the La Trinidad Police
Station. The policemen were told to remain in formation after the inspection. Cogasi went around the formation four (4)
or five (5) times before pointing to Bangcado and then to Banisa. Clemente also went around the formation but despite
going around longer than Cogasi, Clemente was unable to identify anybody. Clemente started to point to James Tagle
but withdrew his identification of him when some people then present laughed and shouted "Hoy!" and "Sabali!"
meaning "Wrong!" or "Different!" Accused-appellants insist that Clemente could not have made a reliable identification
of them at the NBI and La Trinidad line ups, nor even in open court, because his eye injury blurred his vision.

The rule is that positive identification of witnesses prevails over the simple denial of the accused. It cannot be doubted
that Clemente and Cogasi had a good view of the faces of the accused. From the testimonies of various witnesses,
including PO3 Jimmy Baybay, one of the policemen who conducted Operation Kapkap, the Skyview Restaurant was well-
lighted. Banisa himself testified that although the lighting may be "somewhat dim," he could still recognize a person
from a distance of four (4) meters.[3] This is relevant considering that the two (2) groups were seated only one (1) table
apart. Thus, Cogasi and his friends were able to recognize their assailants as the persons who came out from the Skyview
Restaurant.

The crime scene was illuminated by two (2) streetlights and the lights coming from the nearby Garden Inn and various
sari-sari stores. The fact that the policemen who responded to the report of the incident had to use a flashlight in their
investigation did not prove that the area was so dark as to preclude the identification of the persons involved. For one
thing, the policemen had to be careful not to overlook any piece of evidence, such as a spent bullet. For another, SPO4
Antonio Naungayan of PNP Baguio City, who was part of the investigating team, testified on cross-examination that even
if the area was not brightly lighted, one could still recognize people.[4] According to Clemente, he was only four (4)
meters away from his attackers when they fired upon him and his friends. Cogasi was only 1-1/2 meters away while
Adawan and Lino, who died on the spot, were each only about a meter away.

It cannot be doubted that Cogasi and Clemente had enough time to take a good look at their assailants faces who
conversed with their victims, ordered them to fall in line, frisked them one by one, and asked them questions before
shooting them. When Bangcado and Banisa leaned over to frisk Cogasi and his friends, their faces must have only been
inches away from their victims; and when they ordered their victims to line up against the vehicle, they stood only a few
meters away.

Although Clemente admitted to be suffering from blurred vision, Cogasis positive identification of appellants could be
sufficient to establish their identities. Indeed, there is no law that requires that the testimony of a single witness must be
corroborated except, of course, when expressly mandated. Witnesses are to be weighed, not numbered, in determining
the credibility of witnesses and the value of each piece of evidence. In fact, the testimony of a single witness, if credible
and positive, is sufficient to convict,[5] and must be given full faith and credence when no reason to falsely testify is
shown.[6]

Assuming arguendo that Clemente was unable to identify accused-appellants during the line-up in La Trinidad as his
right eye was still bandaged from his injuries, he was able to make a positive identification in open court. Neither is it
material now that Clemente made some attempts to point to policeman James Tagle for it seems clear that he withdrew
his identification. Besides, Clemente admitted candidly that he could not identify anyone in the line-up since his right
eye was still covered with a bandage and was still suffering from blurred vision.

Further, the defense failed to shake Cogasis certainty, either when he declared that he recognized accused-appellants as
being those who were earlier in the Skyview Restaurant, or when he pointed to them in the line-up at La Trinidad. The
fact that he took some five (5) minutes and had to go around the line-up four (4) or five (5) times did not detract from
his credibility. Rather, it is to his credit that he took time to look closely into the faces of more than twenty-four (24) or
so similarly garbed men to make sure that he did not make a mistake in identifying his assailants.
Neither should the defense attempt to mislead the Court by pointing out that Cogasi was not able to identify Bangcado
during the NBI line-up since it is clear that that line-up did not include accused-appellants. Instead, it was composed of
four (4) civilians, none of whom he had ever seen before. Since these four (4) had no connection with the crime, there
was no reason for Cogasi to implicate any of them in the murder.

The defense also points out that the policemen who conducted Operation Kapkap indicated in their joint affidavit that
they only saw Banisa present inside the Skyview Restaurant, along with three (3) unidentified companions. According to
the defense, this only proves that Bangcado was not there since the policemen personally knew Bangcado and thus
should have included him in their joint affidavit.

However, the theory of the trial court that the reason why they did not see Bangcado with Banisa was because he went
to the washroom or elsewhere deserves credence. Considering that the Skyview Restaurant had some thirty (30) to fifty
(50) customers that night; that the four (4) policemen were busy going around the tables conducting Operation KapKap;
that they did not approach the table of Banisa to frisk him and his companions because they recognized him as a
policeman, then it is evident that their attention was elsewhere, and that they did not bother to inquire whether Banisa
had other fellow officers with him. Further, the policemen testified that they were in the restaurant for only a few
minutes.

Further, PO Delfin Balan-eg, one of the policemen who conducted Operation Kapkap, testified that he saw Bangcado and
Banisa drinking beer inside the restaurant. The defense tried to destroy his credibility by establishing that he and the
two (2) victims as well as the two (2) complaining witnesses were related. However, it must be stressed, that
relationship, much less bias, cannot be established by the fact that two (2) persons live in different barangays that form
part of the same town.

The defense insist that neither could Cogasis testimony be given any weight since his testimony in open court
contradicted his sworn affidavit executed immediately after the incident before the investigating officer. While he
testified that he saw the accused emerge from the Skyview Restaurant, in his affidavit, he swore that their attackers
actually alighted from a red -colored car. The theory of the defense is that if the gunmen alighted from a red or maroon
colored car immediately before the shooting, then they could not have come from the Skyview Restaurant, and vice
versa.

An affidavit taken ex parte is judicially considered to be almost incomplete and often inaccurate, sometimes from partial
suggestions and sometimes from want of suggestions and inquiries, without the aid of which the witness may be unable
to recall the connected circumstances necessary for his accurate recollection of the incident.[7] Further, an examination
of Cogasis sworn statement shows, however, that there was actually no contradiction. His testimony was as follows: "x x
x I noticed a maroon car x x x I noticed also two persons who were immediately following us went (sic) near the parked
maroon car and one of them opened the door at the drivers side but immediately closed it."[8] Quite obviously, the two
(2) persons who emerged from the Skyview Restaurant intended to board the parked car but changed their minds and,
instead, followed Cogasi and his friends to the Ford Fierra that was parked.

The accused-appellants raise the defense of alibi which is inherently weak. To prosper, alibi must be so convincing as to
preclude any doubt that the accused could not have been physically present at the crime scene at the time of the
incident.[9] The alibis of the accused clearly show upon examination that this could not have been so.

Bangcado testified that he stayed at home because he served his tour of duty from 12:00 midnight to 8:00 a.m. the
previous day. Thus, on the day of the incident, he was at home where he slept, read the newspapers, watched television
and played with his one-year-and-seven-month old daughter. After dinner, he took a nap until his mother-in-law woke
him up before 11:00 p.m. so he could report to the police station before 12:00 midnight. As police officer assigned to
patrol his area of responsibility, his job was to ride in the police vehicle going around La Trinidad.[10] This was confirmed
by Bangcado's mother-in-law Angela Gondales when she testified for the accused.

Yet, Bangcado himself told the court that Central Pico, La Trinidad, Benguet, where his mother-in-laws house stood, was
only five (5) kilometers away from Skyview Restaurant and could be negotiated in thirty (30) minutes using a motor
vehicle.[11] The fact that La Trinidad was only thirty (30) minutes away from Baguio City was corroborated by Banisa
himself.[12] And Bangcados house is near a national highway where jeepneys pass by on their way to Baguio City, which
means, it was not impossible for Bangcado to have left the house earlier than 11:00 p.m. and be in Baguio City at the
time of the incident.

The defense failed to establish with credible evidence that SPO1 Jose Bangcado was on duty from 11:00 o'clock in the
evening to 8:30 the following morning. SPO4 Lilia Pascual, Records Custodian of the PNP at La Trinidad, Benguet,
testified that there was no record of the attendance of PNP officers from June to December 1993. SPO4 Carlos Layagan,
Bangcados Patrol Section Supervisor, testified that on that day, Bangcado was present for his regular tour of duty from
12:00 o'clock midnight to 8:00 o'clock the following morning and conducted routine patrol by mobile,[13] but the
incident occurred at around 9:00 o'clock in the evening according to the police who responded when the crime was
reported to them. Thus, Bangcado had plenty of time to do what he did and still go on his tour of duty. More damaging
was the admission of Layagan in his cross-examination that before 12:00 o'clock midnight of 27 June 1993 he was not in
the company of SPO1 Jose Bangcado.[14]

The alibi of PO3 Cesar Banisa was even more incredible. He admitted being at the Skyview Restaurant when Cogasi and
his friends were there, but claimed that he left with his brother to eat mami and siopao at the Baguio First Hotel, which
is only about a hundred (100) to a hundred and fifty (150) meters away from Skyview Restaurant and could be reached
in five (5) minutes of walking.[15] He explained however that "this bold admission x x x placing him within the vicinity of
the crime scene shows his clear conscience. For, if he was involved in the crime, he would naturally put himself in other
places."[16] His testimony was corroborated by Abelardo Lucas who testified that he, along with Arsenio Palileng and
Raymund Banisa, accused-appellants brother, was with Banisa that night.

While flight of an accused is competent evidence to establish prima facie his guilt, there is no law or principle that non-
flight per se is proof, let alone conclusive proof, of innocence. Much like the defense of alibi, non-flight cannot prevail
against the weight of positive identification of the accused.[17] It is more credible to believe that Banisa had no choice
but to tell the truth regarding his presence at the Skyview Restaurant because four (4) policemen who knew him well
saw him there while they were conducting Operation Kapkap.

PO3 Banisa further claims that his group stayed at the Baguio First Hotel Restaurant for only ten (10) minutes and then
went down the road to the jeepney station where they boarded a jeepney at 9:00 o'clock in the evening bound for La
Trinidad and got home after twenty-five (25) to thirty-five (35) minutes. Yet he also testified that the boarding station
for jeepneys bound for La Trinidad was only across the road from Skyview Restaurant.

SPO1 Jose Bangcado and PO3 Cesar Banisa could have accosted their victims, gone back to Skyview Restaurant and
joined their companions who may have thought that they (Bangcado and Banisa) just went to the comfort room or
stepped out for some fresh air. Abelardo Lucas himself testified that while they were at the Skyview Restaurant his
companions would frequently stand up and leave, purportedly to go to the restroom.

The defense bewails the fact that nothing seemed to have been done to the deformed slug found near the body of the
deceased Richard Lino, nor to the other slug extracted from Clemente, and that no ballistics examination was conducted
to determine from what caliber they were fired and if the gun used was the same. Investigators did not even cause the
surrender of accused-appellants firearms for examination and comparison. Neither were accused-appellants required to
undergo a paraffin test.
Nonetheless, a ballistics examination is not indispensable, and even if another weapon was in fact actually used in killing
the victim, still the accused cannot excape criminal liability therefor as he was already positively identified.[18] Because
credible witnesses had already demonstrated accused-appellants' culpability, there was no need to present further
evidence linking them to the crime. There is no requirement of a certain quantum of evidence before one may be justly
convicted of an offense except when specifically required by law. The only requisite then is that the guilt of the accused
is proved beyond reasonable doubt.[19]

Accused-appellants insist that they had no motive to shoot the victims and/or the complaining witnesses. However,
even the absence of a known motive, the time-honored rule is that motive is not essential to convict when there is no
doubt as to the identity of the culprit.[20] Lack of motive does not preclude conviction when the crime and the
participation of the accused therein are definitely shown,[21] particularly when we consider how nowadays, it is a
matter of judicial knowledge that persons have killed or committed serious offense for no reason at all.[22]

The defense also tried, but failed, to establish that Cogasi and Clemente knew beforehand that Bangcado and Banisa
were policemen as they all lived and worked together in the same neighborhood. This allegation is not sufficient to
prove that the witnesses for the prosecution had any ill motive to testify against accused-appellants. When there is no
evidence to show any improper motive on the part of the prosecution witnesses to testify falsely against an accused or
to falsely implicate him in the commission of a crime, the logical conclusion is that no such improper motive exists and
that the testimony is worthy of full faith and credit.[23]

The defense also assails the conclusion reached by the trial court that the accused were guilty because they remained
silent when they were pinpointed by Cogasi during the police line-up. The trial court asked, "Is it not that 'Qui tacen
concentire videtur,' meaning, 'Silence means consent'?"[24]

Although the Rules of Court provides that an act or declaration made in the presence and within the hearing or
observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or
comment if not true, and when proper and possible for him to do so, may be given in evidence against him,[25] courts
should be cautious in interpreting silence against the accused. Further, the facts do not support the conclusion that the
accused remained silent. Both Bangcado and Banisa gave their individual reactions during the line-up but police
discipline kept them from breaking rank.[26] As police officers, they are bound by the strict discipline of their profession,
as well as an awareness of their rights to remain silent and to avail of the services of counsel. These rights are not
diminished by the fact that they are policemen.

However, the trial court ruled, and correctly so, that at the time of the police line-up, accused-appellants were not yet
under the custody of the police agencies. Their rights had not yet been restricted or curtailed. The right to counsel
attaches from the moment the investigation starts, i.e., when the investigating officer begins to ask questions to elicit
information and confessions or admissions from the accused.

From the testimony of the victims as well as from the physical evidence, it seems that SPO1 Bangcado was the lone
gunman, while PO3 Banisa merely stood behind him with his gun drawn. In his testimony, Cogasi narrated how the
shooting occured -

Q: You testified that the thin one who called himself Jose Bangcado pointed a gun at Leandro Adawan, what type of gun
is (sic) that x x x x

A: It was black and short.

Q: What about the fat man at that time, was identified as Cesar Banisa, what was he doing at that time?

A: He was also standing beside him and was holding his gun.
Q: Would you illustrate to this Court how Jose Bangcado pointed a gun at Leandro Adawan?

A: Witness stretch[ed] both his arms and clasped his hands together with the forefinger extended in front of him.

Q: After you saw Jose Bangcado point a gun at Leandro Adawan, what else transpired, Mr. Witness?

A: He suddenly fired his gun.

Q: To whom Mr. Witness did he fire his gun?

A: He fired his gun to the four of us.

Q: After firing his gun what else transpired, Mr. Witness?

A: I just felt that I fell down.

Q: Why did you fall down?

A: Because I was shot.[27]

On cross-examination, Cogasi affirmed his sworn statement taken by the investigating officer immediately after the
incident wherein he referred to only one (1) gunman who did the shooting. He further testified that he heard four (4)
successive shots when the gunman started shooting, then heard more shots only after he had succeeded in running
away.

On his part, Clemente attested in his sworn statement that "the man in jacket then ordered us to line up. After we have
formed a line, he started shooting at us starting from the left. He shot first Leandro, then Richard and followed by
Pacson. After hearing the shots and seeing my companions fall, I turned my back and held my nape with my two (2)
hands and started to run but I got hit and fell. I got up and tried to run but I fell down again."[28]

On the other hand, during his direct examination Clemente testified -

Q: Now, Mr. Witness, when these two (2) persons followed you and your companions, what did you observe from them
that time?

A: They have (sic) guns, sir.

Q: What kind of guns do (sic) they have?

A: Short and black, sir.

Q: And were they holding their guns?

A: They were holding their guns, sir x x x x

Q: After you were made to fall in line, what happened next?

A: He pointed a gun, sir.

Q: Who pointed the gun to whom?

A: The thin man pointed his gun at Leandro Adawan, sir.

Q: What else transpired after that?

A: They fired their guns at us, sir.

Q: Who shot at who (sic)?

A: The two (2) of them, sir, because there were two of them.[29]

On cross examination, Clemente testified -

Q: So, you said on that date you were frisked and then later on lined-up and when you heard successive shots, you fell
down?

A: When I heard the three (3) successive shots, I saw one pointing the gun again at me, so, I turned around and prepared
to run, but I was hit, sir. When I turned my back and started to run, I was hit, sir.

Q: So, because you turned your back, you did not really see who actually shot you?

A: I saw the thin one point the gun at me and both were armed with guns, sir x x x x

Q: So, you want to tell the court that it was the thin one who shot you because he was holding the gun that way, is that
correct?

A: I do not know because both of them have (sic) guns, sir. But I saw the thin one pointing a gun at me, sir.[30]

Thus, as to the identity of the gunman, it is apparent that both witnesses were positive only as far as Bangcado was
concerned. However, it seems that they only concluded that Banisa participated in the shooting because he was also
holding a gun. The failure of the surviving victims to assert with confidence that Banisa also fired his gun raises
reasonable doubt as to whether he participated in the shooting.

Accused-appellants deny the existence of treachery, nighttime and abuse of public position to aggravate the commission
of the crimes. It is settled that qualifying circumstances cannot be presumed but must be established by clear and
convincing evidence, as conclusively as the killing itself.[31] The defense alleges that there is no evidence that accused-
appellants made some preparation to kill the victim in such a manner as to insure the execution of the crime or to make
it impossible or hard for the person attacked to defend himself. For treachery to be considered, two (2) elements must
concur: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or
retaliate; and, (b) the means of execution were deliberately or consciously adopted.[32] In this case, treachery was not
present. In a long line of cases, the Court held that "the essence of treachery is the swift and unexpected attack on an
unarmed victim without the slightest provocation on his part."[33]

To ensure that he was not in any risk, accused-appellant Bangcado frisked and searched Cogasi, Clemente, Adawan and
Lino to see if they were concealing any weapons. After making sure that the victims were unarmed, Bangcado directed
the victims to form a line against the Ford Fierra to separate the victims from each other and so that the latter could not
rush to their friends defense. Because Bangcado and Banisa were holding handguns, Cogasi and his friends did as they
were told and were caught unaware when they were shot. In fact, Adawan and Lino died of gunshot wounds in the
head, while Cogasi and Clemente only sustained head wounds that did not prove fatal.

In the absence of any previous plan or agreement to commit a crime, the criminal responsibility arising from different
acts directed against one and the same person is individual and not collective, and that each of the participants is liable
only for his own acts.[34] Consequently, Banisa must be absolved from criminal responsibility for the assault on the
victims. It is clear that neither the victims nor Banisa could have anticipated Bangcados act of shooting the victims since
the attack was sudden and without any reason or purpose. Thus, the criminal design of Bangcado had not yet been
revealed prior to the killings.
For public position to be appreciated as an aggravating circumstance, the public official must use his influence, prestige
and ascendancy which his office gives him in realizing his purpose. If the accused could have perpetrated the crime
without occupying his position, then there is no abuse of public position.[35] Hence, that aggravating circumstance
cannot be appreciated here. While it may seem that accused-appellants intended to assert their authority as policemen
and encourage in the victims minds the belief that they were part of Operation KapKap when they frisked the victims,
both Cogasi and Clemente testified that they never told the investigating officers that their assailants might be
policemen. In fact, because the assailants were not in uniform, they believed the latter to be civilians.

The defense claims that the injuries of the surviving victims were not serious enough to classify the attack under the
frustrated stage, therefore, they committed only attempted homicide. However, the doctors who attended to the
surviving victims testified that had they not treated Cogasi and Clemente's injuries the latter would have suffered from
infection which could result in their death. It is clear that only timely medical attention saved both victims from
imminent death.

Accused-appellants deny that there was an offer to compromise when their relatives visited Miguel Adawan, the 81-year
old father of Leandro Adawan. The old Adawan in tears testified that he came to know of the accused Bangcado and
Banisa through their relatives when the latter came to his house in Besao, Mt. Province. Although the incident occurred
on 27 June 1993, the first visit was sometime in April 1995 when Magdalena Mabiasan, the mother of Jose Banisa came
"for a possible settlement of the case."[36] Again, sometime in August or September 1996, Bangcados wife and parents,
along with Banisas mother Magdalena, visited him at Pico, La Trinidad.[37]

The defense claims that the only reason the relatives of accused-appellant went to visit and talk to Miguel Adawan was
to prevent him from avenging his sons death on the families of accused-appellant, in keeping with the tradition of the
Igorot indigenous people. Therefore, this cannot be interpreted as an implied admission of guilt. Moreover, Sec. 27 of
Rule 130[38] contemplates an offer of compromise from the accused himself. There is no showing that the visits were
made with the knowledge or upon the instructions of accused-appellants. Thus, even if the purpose of the visit was to
negotiate a settlement, accused-appellants had nothing to do with it, since they were neither participants nor
initiators.[39]

The trial court believed in the testimony of Adawan, compared to that of the relatives of accused-appellants who could
be biased, partial and, of course, hoping to save the two (2) accused from the serious predicament they were in.[40] It
posited this question:

But why is it that during the first time that they approached the 77-year old man Adawan in Besao, Mountain Province,
they were already assured that the family of the deceased Adawan would not take revenge and for the last three years,
nothing happened to the families of the accused, still they again went to the residence of Miguel Adawan at Pico, La
Trinidad, Benguet. This would only show that they tried to amicably settle the cases, but they were rebuffed.[41]

But an offer of compromise from an unauthorized person cannot amount to an admission of the party himself.[42]
Although the Court has held in some cases that an attempt of the parents of the accused to settle the case is an implied
admission of guilt,[43] we believe that the better rule is that for a compromise to amount to an implied admission of
guilt, the accused should be present or at least had authorized the compromise.

In People v. Macatana[44] it was held: "No implied admission can be drawn from the efforts to arrive at a settlement
outside the courts, primarily because appellant did not take part in any of the negotiations. The efforts to settle the case
x x x in accordance with the established Muslim practices, customs and traditions were initiated by acknowledged
leaders x x x in an effort to prevent further deterioration of the relations between the tribes."[45]
The general rule is that claims for actual damages should be supported by actual receipts. However, it is undisputed that
the victims are members of the indigenous community and were buried according to their customs and traditions. The
relatives of the victims attested that they incurred expenses for the caao, the traditional gathering of Igorots. The Court
is not unaware that the informal market system still governs the economic transactions of indigenous communities.
Thus, receipts and other documents do not play a large role in their daily commercial transactions. In this case, wherein
it is clearly established that the claimants were indeed members of indigenous communities, then the court should allow
reasonable claims for expenses incurred in relation to traditional burial practices.

The heirs are also entitled to damages for the loss of earning capacity of the deceased Leandro Adawan. The fact that
the prosecution did not present documentary evidence to support its claim for damages for loss of earning capacity of
the deceased does not preclude recovery of the damages.[46] Testimonial evidence is sufficient to establish a basis for
which the court can make a fair and reasonable estimate of the damages for the loss of earning capacity.[47] Moreover,
in fixing the damages for loss of earning capacity of a deceased victim, the Court can consider the nature of its
occupation, his educational attainment and the state of his health at the time of his death.[48] The testimony of
Adawans father sufficiently established the basis for making such an award. It was shown that Adawan was thirty-seven
(37) years old at the time of his death in 1993 and earned P4,000.00 a month as a mechanic.

Hence, in accordance with the American Expectancy Table of Mortality adopted by this Court in several cases,[49] the
loss of his earning capacity is to be calculated as follows:

Net Earning Capacity (x) = Life Expectancy x Gross annual income living expenses (50% of gross annual income)

where life expectancy = 2/3 x (80 - age of deceased [37 years])

x = 2/3 x (80 - 37) x [(P4000.00 x 12) - (P4000.00 x 12)50%]

x = 2/3 x 43 x [P48,000.00 - P24,000.00]

x = [2/3 x 43] x P24,000.00

x = 28.67 x P24,000.00

x = P688,080.00

Since Leandro Adawan was thirty-seven (37) years old at the time of his death, his life expectancy was 28.67 years.
Considering that his average monthly income was P4,000.00, his gross annual income would be P48,000.00. Using the
above formula, the victims unearned income would thus be P688,080.00.

On the other hand, the Court has no basis to award damages for Richard Lino loss of earning capacity because the
prosecution failed to introduce any evidence on this matter.

Civil indemnity in the amount of P50,000.00 (consistent with prevailing jurisprudence) is automatically granted to the
offended party, or his/her heirs in case of the formers death, without need of further evidence other than the fact of the
commission of any of the aforementioned crimes (murder, homicide, parricide and rape). Moral and exemplary damages
may be separately granted in addition to indemnity. Moral damages can be awarded only upon sufficient proof that the
complainant is entitled thereto in accordance with Art. 2217 of the Civil Code, while exemplary damages can be awarded
if the crime is committed with one or more aggravating circumstances duly proved. The amounts thereof shall be at the
discretion of the courts.[50]

Under present case law, the award of P50,000.00 for civil indemnity is mandatory upon the finding of the fact of murder.
Moral damages, vis-a-vis compensatory damages or civil indemnity, are different from each other and should thus be
awarded separately.[51] Thus, as explained in People v. Victor,[52] the indemnity authorized by our criminal law as civil
liability ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from other
established actual damages, is itself equivalent to actual or compensatory damages in civil law. It is not to be considered
as moral damages thereunder, the latter being based on different jural foundations and assessed by the court in the
exercise of sound discretion.[53]

In People v. Victor the Court increased the civil indemnity for rape committed or effectively qualified by any of the
circumstances under which the death penalty is authorized by the present amended law, from P50,000.00 to
P75,000.00. The Court held that "This is not only a reaction to the apathetic societal perception of the penal law and the
financial fluctations over time, but also an expression of the displeasure of the Court over the incidence of heinous
crimes against chastity."[54] It is submitted that the heirs of victims of murder, which is also a heinous crime, should not
receive less than what victims of rape receive as civil indemnity. If the civil indemnity is automatically imposed upon the
accused without need of proof other than the fact of the commission of the offense, all the more reason should the
same minimum amount be imposed on those convicted of murder, as more often than not the victims who are killed
leave behind grieving families who are depended upon them for support. Thus, indemnity of P75,000.00 should
therefore be reckoned for each count of murder committed by accused-appellant SPO1 Jose Bangcado.

Since the crime was committed on 27 June 1993, the penalty for murder prescribed by Art. 248 of the Revised Penal
Code, prior to its amendment by RA 7659, which took effect only on 31 December 1993, should be applied in imposing
the penalty for frustrated murder, i.e., reclusion temporal maximum to death.

The penalty for frustrated murder is one (1) degree lower than that prescribed by the Penal Code for the consummated
offense, hence, the imposable penalty for frustrated murder should be prision mayor maximum to reclusion temporal
medium. Applying the Indeterminate Sentence Law, and there being no mitigating nor aggravating circumstance present
in the commission of the offense, the penalty to be imposed for the frustrated murder shall be taken from the range of
prision correccional maximum to prision mayor medium or four (4) years two (2) months and one (1) day to ten (10)
years as minimum, to the medium period of prision mayor maximum to reclusion temporal or twelve (12) years five (5)
months and eleven (11) days to fourteen (14) years ten (10) months and twenty (20) days as maximum. Hence, an
indeterminate prison term of eight (8) years two (2) months and ten (10) days of prision mayor medium as minimum to
fourteen (14) years four (4) months and ten (10) days of reclusion temporal medium as maximum may be considered
reasonable for the frustrated murder under the facts of this case.

WHEREFORE, the Decision of the court a quo in Crim. Cases Nos. 11619-R to 11622-R imposing reclusion perpetua for
the two (2) counts of murder and the indeterminate prison term of prision mayor in its medium period to reclusion
temporal in its medium period for two (2) counts of frustrated murder on both accused-appellants SPO1 Jose Bangcado
and PO3 Cesar Banisa is MODIFIED as follows:

1. In Crim. Case No. 11619-R, accused-appellant SPO1 Jose Bangcado is found GUILTY of murder under Art. 248 of the
Revised Penal Code qualified by treachery, and is sentenced to reclusion perpetua and to pay the heirs of the victim
Richard Lino P75,000.00 as indemnity for his death, P59,300.00 as actual damages, P200,000.00 as moral damages, and
to pay the costs;

2. In Crim. Case No. 11620-R, accused-appellant SPO1 Jose Bangcado is found GUILTY of murder under Art. 248 of the
Revised Penal Code, qualified by treachery, and is sentenced to reclusion perpetua and to pay the heirs of the victim
Leandro Adawan P75,000.00 as indemnity for his death, P93,100.00 as actual damages, P200,000.00 as moral damages,
and to pay the costs;
3. In Crim. Case No. 11621-R, accused-appellant SPO1 Jose Bangcado is found GUILTY of frustrated murder under Art.
248 in relation to Art. 6 of the Revised Penal Code. Applying the Indeterminate Sentence Law, and in the absence of
modifying circumstances, he is sentenced to an indeterminate prison term of eight (8) years two (2) months and ten (10)
days of prision mayor medium, as minimum, to fourteen (14) years four (4) months and ten (10) days reclusion temporal
medium, as maximum, for the frustrated murder of the victim Julio Clemente, and pay him P100,000.00 as moral
damages, and to pay the costs; and,

4. In Crim. Case No. 11622-R, accused-appellant SPO1 Jose Bangcado is found GUILTY of frustrated murder under Art.
248 in relation to Art. 6 of the Revised Penal Code. Applying the Indeterminate Sentence Law, and in the absence of
modifying circumstances, he is sentenced to an indeterminate prison term of of eight (8) years two (2) months and ten
(10) days of prision mayor medium, as minimum, to fourteen (14) years four (4) months and ten (10) days of reclusion
temporal medium, as maximum, for the frustrated murder of Pacson Cogasi, and pay him P100,000.00 as moral
damages, and to pay the costs.

There being no finding of conspiracy with accused-appellant SPO1 Jose Bangcado, PO3 Cesar Banisa is ACQUITTED of all
the charges against him and, consequently, is ordered released from custody in connection with herein cases, unless he
is held for other lawful causes.

SO ORDERED.