Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 103119 October 21, 1992

SULPICIO INTOD, petitioner,

vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of
Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City,
finding him guilty of the crime of attempted murder.

From the records, we gathered the following facts.

In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino
Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental
and asked him to go with them to the house of Bernardina Palangpangan. Thereafter, Mandaya
and Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told
Mandaya that he wanted Palangpangan to be killed because of a land dispute between them
and that Mandaya should accompany the four (4) men, otherwise, he would also be killed.

At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio
and Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez
Jaena, Misamis Occidental. At the instance of his companions, Mandaya pointed the location of
Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said
room. It turned out, however, that Palangpangan was in another City and her home was then
occupied by her son-in-law and his family. No one was in the room when the accused fired the
shots. No one was hit by the gun fire.

Petitioner and his companions were positively identified by witnesses. One witness testified that
before the five men left the premises, they shouted: "We will kill you (the witness) and especially
Bernardina Palangpangan and we will come back if (sic) you were not injured". 2

After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as
affirmed by the Court of Appeals, holding that Petitioner was guilty of attempted murder.
Petitioner seeks from this Court a modification of the judgment by holding him liable only for an
impossible crime, citing Article 4(2) of the Revised Penal Code which provides:
 Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be
incurred:

xxx xxx xxx

2. By any person performing an act which would be an offense against persons

or property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual means.

Petitioner contends that, Palangpangan's absence from her room on the night he and his
companions riddled it with bullets made the crime inherently impossible.

On the other hand, Respondent People of the Philippines argues that the crime was not
impossible. Instead, the facts were sufficient to constitute an attempt and to convict Intod for
attempted murder. Respondent alleged that there was intent. Further, in its Comment to the
Petition, respondent pointed out that:

. . . The crime of murder was not consummated, not because of the inherent
impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a
cause or accident other than petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time.
Had it not been for this fact, the crime is possible, not impossible. 3

Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the
void in the Old Penal Code where:

. . . it was necessary that the execution of the act has been commenced, that the
person conceiving the idea should have set about doing the deed, employing
appropriate means in order that his intent might become a reality, and finally, that
the result or end contemplated shall have been physically possible. So long as
these conditions were not present, the law and the courts did not hold him
criminally liable. 5

This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired
by the Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act
which were it not aimed at something quite impossible or carried out with means which prove
inadequate, would constitute a felony against person or against property. 8 The rationale of
Article 4(2) is to punish such criminal tendencies. 9

Under this article, the act performed by the offender cannot produce an offense against person
or property because: (1) the commission of the offense is inherently impossible of
accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. 10

That the offense cannot be produced because the commission of the offense is inherently
impossible of accomplishment is the focus of this petition. To be impossible under this clause,
the act intended by the offender must be by its nature one impossible of
accomplishment. 11 There must be either impossibility of accomplishing the intended act 12 in
order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a
crime. 13 Thus:

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

The impossibility of killing a person already dead 15 falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the
actor or beyond his control prevent the consummation of the intended crime. 16 One example is
the man who puts his hand in the coat pocket of another with the intention to steal the latter's
wallet and finds the pocket empty. 17

The case at bar belongs to this category. Petitioner shoots the place where he thought his victim
would be, although in reality, the victim was not present in said place and thus, the petitioner
failed to accomplish his end.

One American case had facts almost exactly the same as this one. In People vs. Lee
Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he thought the police
officer would be. It turned out, however, that the latter was in a different place. The accused
failed to hit him and to achieve his intent. The Court convicted the accused of an attempt to kill.
It held that:

The fact that the officer was not at the spot where the attacking party imagined
where he was, and where the bullet pierced the roof, renders it no less an
attempt to kill. It is well settled principle of criminal law in this country that where
the criminal result of an attempt is not accomplished simply because of an
obstruction in the way of the thing to be operated upon, and these facts are
unknown to the aggressor at the time, the criminal attempt is committed.

In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the
victim because the latter did not pass by the place where he was lying-in wait, the court held
him liable for attempted murder. The court explained that:

It was no fault of Strokes that the crime was not committed. . . . It only became
impossible by reason of the extraneous circumstance that Lane did not go that
way; and further, that he was arrested and prevented from committing the
murder. This rule of the law has application only where it is inherently impossible
to commit the crime. It has no application to a case where it becomes impossible
for the crime to be committed, either by outside interference or because of
miscalculation as to a supposed opportunity to commit the crime which fails to
materialize; in short it has no application to the case when the impossibility grows
out of extraneous acts not within the control of the party.

In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if
there was nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:
 It being an accepted truth that defendant deserves punishment by reason of his
criminal intent, no one can seriously doubt that the protection of the public
requires the punishment to be administered, equally whether in the unseen
depths of the pocket, etc., what was supposed to exist was really present or not.
The community suffers from the mere alarm of crime. Again: Where the thing
intended (attempted) as a crime and what is done is a sort to create alarm, in
other words, excite apprehension that the evil; intention will be carried out, the
incipient act which the law of attempt takes cognizance of is in reason committed.

In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking
that the latter was inside. However, at that moment, the victim was in another part of the house.
The court convicted the accused of attempted murder.

The aforecited cases are the same cases which have been relied upon by Respondent to make
this Court sustain the judgment of attempted murder against Petitioner. However, we cannot
rely upon these decisions to resolve the issue at hand. There is a difference between the
Philippine and the American laws regarding the concept and appreciation of impossible crimes.

In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible
crimes and made the punishable. Whereas, in the United States, the Code of Crimes and
Criminal Procedure is silent regarding this matter. What it provided for were attempts of the
crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of
committing the offense is merely a defense to an attempt charge. In this regard, commentators
and the cases generally divide the impossibility defense into two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held that:

. . . factual impossibility of the commission of the crime is not a defense. If the

crime could have been committed had the circumstances been as the defendant
believed them to be, it is no defense that in reality the crime was impossible of
commission.

Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal
liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to
smuggle letters into and out of prison. The law governing the matter made the act criminal if
done without knowledge and consent of the warden. In this case, the offender intended to send
a letter without the latter's knowledge and consent and the act was performed. However,
unknown to him, the transmittal was achieved with the warden's knowledge and consent. The
lower court held the accused liable for attempt but the appellate court reversed. It held
unacceptable the contention of the state that "elimination of impossibility as a defense to a
charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal
legislation, is consistent with the overwhelming modern view". In disposing of this contention,
the Court held that the federal statutes did not contain such provision, and thus, following the
principle of legality, no person could be criminally liable for an act which was not made criminal
by law. Further, it said:

Congress has not yet enacted a law that provides that intent plus act plus
conduct constitutes the offense of attempt irrespective of legal impossibility until
such time as such legislative changes in the law take place, this court will not
fashion a new non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is factually
impossible or accomplishment, the offender cannot escape criminal liability. He can be
convicted of an attempt to commit the substantive crime where the elements of attempt are
satisfied. It appears, therefore, that the act is penalized, not as an impossible crime, but as an
attempt to commit a crime. On the other hand, where the offense is legally impossible of
accomplishment, the actor cannot be held liable for any crime neither for an attempt not for
an impossible crime. The only reason for this is that in American law, there is no such thing as
an impossible crime. Instead, it only recognizes impossibility as a defense to a crime charge
that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The
impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized
by itself. Furthermore, the phrase "inherent impossibility" that is found in Article 4(2) of the
Revised Penal Code makes no distinction between factual or physical impossibility and legal
impossibility. Ubi lex non distinguit nec nos distinguere debemos.

The factual situation in the case at bar present a physical impossibility which rendered the
intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised
Penal Code, such is sufficient to make the act an impossible crime.

To uphold the contention of respondent that the offense was Attempted Murder because the
absence of Palangpangan was a supervening cause independent of the actor's will, will render
useless the provision in Article 4, which makes a person criminally liable for an act "which would
be an offense against persons or property, were it not for the inherent impossibility of its
accomplishment . . ." In that case all circumstances which prevented the consummation of the
offense will be treated as an accident independent of the actor's will which is an element of
attempted and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of

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

SO ORDERED.
 Republic of the Philippines
Supreme Court
Manila

THIRD DIVISION

GEMMA T. JACINTO, G.R. No. 162540

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - 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:

xxxx

2. By any person performing an act which would be an

offense against persons or property, were it not for
the inherent impossibility of its accomplishment or
on account of the employment of inadequate to
ineffectual means. (emphasis supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime
because the means employed or the aims sought are impossible. - When
the person intending to commit an offense has already performed the acts
for the execution of the same but nevertheless the crime was not produced
by reason of the fact that the act intended was by its nature one of
impossible accomplishment or because the means employed by such
person are essentially inadequate to produce the result desired by him, the
 court, having in mind the social danger and the degree of criminality
shown by the offender, shall impose upon him the penalty of arresto
mayor or a fine ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would be
an offense against persons or property; (2) that the act was done with evil intent; and
(3) that its accomplishment was inherently impossible, or the means employed was
either inadequate or ineffectual. The aspect of the inherent impossibility of
accomplishing the intended crime under Article 4(2) of the Revised Penal Code was
further explained by the Court in Intod[10] in this wise:

Under this article, the act performed by the offender cannot produce an
offense against persons or property because: (1) the commission of the
offense is inherently impossible of accomplishment; or (2) the means
employed is either (a) inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the

offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment. There
must be either (1) legal impossibility, or (2) physical impossibility of
accomplishing the intended act in order to qualify the act as an impossible
crime.

Legal impossibility occurs where the intended acts, even if completed,

would not amount to a crime.
xxxx

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

On the other hand, factual impossibility occurs when extraneous

circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. x x x [11]
In Intod, the Court went on to give an example of an offense that involved factual
impossibility, i.e., a man puts his hand in the coat pocket of another with the
intention to steal the latter's wallet, but gets nothing since the pocket is empty.
Herein petitioner's case is closely akin to the above example of factual impossibility
given in Intod. In this case, petitioner performed all the acts to consummate the
crime 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
xx

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.
 FIRST DIVISION

[G.R. No. 142885. October 22, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. WILLIAM TIU y LIU AND

EDGARDO DE PAZ y DANAO, appellants.

DECISION
AZCUNA, J.:

Appellants William Tiu y Liu and Edgardo De Paz y Danao were charged
before the Regional Trial Court of Marikina City with violating Section 15,
[1]

Article III of Republic Act 6425, as amended by Republic Act 7659, otherwise
known as the Dangerous Drugs Act of 1972. Both were found guilty of the
offense charged and sentenced to suffer the penalty of reclusion perpetua and
solidarily to pay the mandatory conjunctive penalty of a fine
of P1,000,000. The convictions are now up for review before the Court.
[2]

The Prosecutions Version of the Facts

The testimonies of prosecution witnesses PO3 Benedicto R. Tupil, P/Insp.

[3]

Julieto Culili, P/Insp. Julius Mana and P/Insp. Isidro Cario, are as follows:
[4] [5] [6]

On June 26, 1998, at about 2:30 p.m., police officers Tupil, Culili and Mana
were on alert duty at the Philippine National Police Narcotics Group, Special
Operations Division (SOD) situated in Camp Crame, Quezon City when a
confidential informant (CI) walked in and reported that he had knowledge of two
persons, going by the names William and Edgar, who were engaged in the
selling and/or delivering of large volumes of shabu in Metro Manila. The CI
disclosed that Edgar promised him a commission if he can find a good buyer
for their available stocks of shabu.
After interrogating the CI and evaluating the information given, Mana
instructed the CI to contact Edgar and to arrange the purchase of 2 kilos
of shabu. At about 7:30 p.m., the CI returned, claiming that he closed a deal
with Edgar for the purchase of 2 kilos of shabu for P1,000,000. The exchange
would take place between 5:00 a.m. and 8:00 a.m., the next day, at the 7-11
convenience store parking area located in Bayan-Bayan
Ave., Concepcion, Marikina City.
A team was immediately formed comprising of Tupil, to act as the poseur-
buyer, Culili and a certain P/Insp. Carlito Dimalanta, to give backup support,
and six other police officers, to provide the perimeter security. The buy-bust
money was also prepared using six pieces of marked P1,000 bills that were
placed on top of ten bundles of boodle money and contained inside a paper
[7]

bag. Thereafter, the police officers proceeded to the target area. In route, they
dropped by the Eastern Police District Station to coordinate the buy-bust
operation to avoid a misencounter with the local police.
The police officers arrived in the target area at around 3:30 a.m. Tupil and
the CI parked their vehicle in the parking lot of 7-11, while Culili and Dimalanta
took positions in front of a Meralco building some 10 to 15 meters away. The
rest of the team stayed at a nearby gasoline station, about 20 meters away from
7-11.
At around 6:30 a.m., a metallic green Toyota Corolla XL, with license plate
UHE 156, arrived carrying on board the two appellants. De Paz first approached
Tupil and the CI. The CI immediately introduced Tupil to De Paz by saying Siya
iyong interasadong bumili ng shabu. De Paz, in turn, requested to see the
money, whereupon Tupil went to the car to retrieve the paper bag. Tupil then
took out a bundle of boodle money and flashed it in front of De Paz. Satisfied,
De Paz left to fetch Tiu who was, during all this time, waiting inside the Toyota
Corolla. When De Paz returned with Tiu, the latter was carrying a black shoulder
bag. Tiu handed the black bag over to Tupil saying Pare, ito iyong order nyo na
bato. Dalawang kilo yan. After receiving the black bag, Tupil handed over to De
Paz the paper bag containing the boodle money. As he was doing so, Tupil
executed the prearranged signal by removing the cap he was wearing.
Thereafter, Tupil identified himself as a police officer and grabbed Tiu. De Paz
managed to run away at first, but was immediately caught by Dimalanta and
Culili.

The Appellants Version of the Facts

Appellants claim that the buy-bust operation never took place. Instead, they
depicted an elaborate frame-up perpetrated by the police. Gathered from the
testimonies of appellants and
[8]
witnesses Lorna Perez, Nerio
[9]

Cercado, Eduardo
[10]
Balamiento, Tessie
[11]
Lesiguez, Carmelita
[12]

Villanueva, and Erna Boadilla, the whole incident transpired as follows:

[13] [14]
 On June 26, 1998, Lorna Perez, the common-law wife of Tiu, was in route
to Manila on board Tius Mitsubishi Lancer GRS, with license plate WLT 111,
driven by Nerio Cercado. She had just left Olongapo City, where she had a
medical check-up. Somewhere in Sta. Cruz, Pampanga, their vehicle was
stopped by armed men who introduced themselves as narcotics policemen
stationed in Olongapo City. The policemen accused them of riding in a hot car
and told them that they must be brought to Camp Crame. Because the men
were armed, Perez and Cercado had no choice but to go to Camp Crame.
Upon arrival in Camp Crame at about 8:00 p.m., Perez and Cercado were
interrogated by Dimalanta, Culili, Tupil and Mana regarding the whereabouts of
Tiu. Both replied that Tiu resides in Marikina and that he may already be home.
The police officers then proceeded to Tius house with Perez and Cercado. After
seeing that Tiu was not yet home, the police officers decided to wait for him.
Tiu arrived at around 5:30 a.m. the following day, accompanied by De Paz.
He just came from an all-night card game in the house of De Pazs brother. As
they entered the gate, the police officers immediately drew their weapons and
ordered them to lie on the ground. One police officer told Tiu that their superior,
Director Acop, is very mad at him because of false rumors Tiu was allegedly
spreading against Director Acop in Olongapo City. Tiu, De Paz, Perez and
Cercado were thereafter brought to Camp Crame.
Later, at around 10:00 a.m., the police brought Tiu and Perez back
to Marikina because the police wanted Tiu to get in touch with a certain Paul
Chua. When he was unable to contact Paul Chua, they were taken back
to Camp Crame. The following day, around 8:00 p.m., Director Acop arrived.
Upon seeing Tiu, Director Acop took off his shoes and used them to hit Tiu.
Director Acop also punched and kicked Tiu, telling him Putang ina mo William,
kung anu-ano ang pinagsasabi mo sa Olongapo. Siniraan mo ako at pinag
taguan mo pa kami.
Subsequently, the police officers offered to release Perez, Cercado and the
Mitsubishi Lancer for P270,000. Tiu managed to raise the money and it was
brought in by Perezs father early the next morning on June 28, 1998. Thus,
Perez and Cercado were set free and the vehicle released. However, Tiu and
De Paz were brought before the Marikina Prosecutors Office for inquest
proceedings.
Appellants filed separate briefs. In Tius brief, the following alleged errors
were assigned:
I
THE TRIAL COURT GROSSLY MISAPPRECIATED THE FACTS AND
CIRCUMSTANCES OF THE CASE.

II

THE TRIAL COURT ERRED IN GIVING UNDUE WEIGHT AND CREDENCE

TO THE EVIDENCE PRESENTED BY THE PROSECUTION DESPITE THE
FACT THAT THE SAME INDICATES IMPROBABILITIES.

THE TRIAL COURT ERRED WHEN IT ENGAGES IN GIVING UNDUE

WEIGHT TO THE EVIDENCE PRESENTED BY THE PROSECUTION DESPITE
THE EXISTENCE OF CLEAR, POSITIVE AND CREDIBLE EVIDENCE
EFFECTIVELY CONTROVERTING THE EVIDENCE PRESENTED BY THE
PROSECUTION.

III

THE TRIAL COURT ERRED IN NOT ACQUITTING THE ACCUSED-

APPELLANT ON THE GROUND OF REASONABLE DOUBT.

De Paz, in his brief, assigns the following errors for consideration:

I

THE COURT A QUO ERRED IN GIVING WEIGHT AND CREDENCE TO THE

TESTIMONIES OF THE POLICE OFFICERS WHO CONDUCTED THE
ALLEGED BUY-BUST OPERATION WHICH LED TO THE CAPTURE OF
WILLIAM TIU AND EDGARDO DE PAZ.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THAT WILLIAM TIU

AND EDGARDO DE PAZ WERE CAUGHT IN FLAGRANTE DELICTO IN AN
ALLEGED BUY-BUST OPERATION BY A TEAM HEADED BY P/CHIEF
INSPECTOR JULIUS CESAR V. MANA AT THE SEVEN-ELEVEN (7-11)
CONVENIENCE STORE LOCATED AT BAYAN-BAYANAN AVENUE,
CONCEPCION MARIKINA CITY AT AROUND 6:20 IN THE MORNING OF
JUNE 27, 1998 DESPITE THE OVERWHELMING EVIDENCE FOR THE
DEFENSE THAT THERE WAS NO BUY-BUST OPERATION IN THE
AFORESAID DATE AND PLACE AND THAT WILLIAM TIU AND EDGARDO
DE PAZ WERE ARRESTED IN TIUS RESIDENCE AT 72 ISRAEL STREET,
GREENHEIGHTS NAGKA, MARIKINA CITY.

III
THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF
THE ACCUSED-APPELLANT EDGARDO DE PAZ HAS BEEN PROVEN
BEYOND REASONABLE DOUBT.

Simply put, both appellants are asking the Court to rule that the prosecution
failed to prove their guilt beyond reasonable doubt.

The Ruling

The Court understands the importance of buy-bust operations as an

effective method, sanctioned by law, of apprehending drug peddlers. At the [15]

same time, it is aware that it is susceptible to mistake, harassment, extortion

and abuse. As the Court declared in People v. Ale:
[16] [17]

[W]e cannot close our eyes to the many reports of evidence being planted on unwary
persons either for extorting money or exacting personal vengeance. By the very nature
of anti-narcotics operations, the need for entrapment procedures, the use of shady
characters as informants, the ease with which sticks of marijuana or grams of heroin
can be planted in pockets or hands of unsuspecting provincial hicks, and the secrecy
that inevitably shrouds all drug deals, the possibility of abuse is great.

For this reason, the Court must be extra vigilant in trying drug cases. [18]

The elements necessary successfully to prosecute an accused for the illegal

sale of shabu are: 1) Identities of the buyer and seller, the object, and the
consideration; and 2) the delivery of the thing sold and the payment
therefor. To prove that these elements were present in the case at bar, the
[19]

prosecution relies on the testimony of the poseur-buyer, Tupil. The four other
witnesses who testified for the prosecution were incompetent to testify on these
facts. Culili, who witnessed the incident from some 15 meters away, was only
able to testify on the movements of appellants, Tupil and the CI, but could not
precisely testify as to the fact of the sale. Mana, on the other hand, testified on
the preparations conducted prior to the buy-bust operation, while Cario merely
reported that the drug samples given to him for testing were positive for shabu.
In short, the prosecutions case crucially depends on the strength of the
testimony of Tupil.
While the Court concedes that a single, trustworthy and credible witness
could be sufficient to convict an accused, it does not hold true in this
[20]

case. Tupils credibility has been seriously eroded by the fact that, in another
drug-related criminal case, he was found to have framed-up the accused therein
for illegal sale of shabu. The decision in that case, rendered by [21]

the Regional Trial Court of Pasay City and presented by appellants as part of
their evidence, speaks volumes of the character of Tupil and his co-narcotics
[22]

agents. The pertinent portion of the Pasay City trial courts decision is quoted
therein, as follows:

The prosecution avers that, when the accused arrived, at 4:00 oclock in the afternoon,
on March 15, 1998, in the parking lot of the Heritage Hotel, he and the informant had
a brief conversation and that, thereafter, the informant and the accused proceeded to
the car of Savellano, in the parking lot, boarded the car and, once inside the car, the
sale transaction was forged with the Accused turning over the shabu to Bungay and
the latter showing the buy-money to the Accused. However, the VHS videotape taken,
with the cameras at the entrance door of the hotel, inscrutably shows that, as the
Accused waited in the driveway of the hotel, he was forcibly taken by armed male
persons and forcibly boarded in a car which then sped off towards the direction
of Makati City. This is graphically shown in the VHS video shown to the Court, in the
presence of the Accused and the Prosecutor. There was no transaction forged by the
Accused and the informant and Bungay at all. The Accused was brazenly abducted
from the driveway of the hotel and brought to Camp Crame, Quezon City

Eventually, the accused therein, Philip Sy, was acquitted and criminal
charges were brought by the Criminal Investigation and Detection Group
against Tupil and the other policemen involved in the frame-up. When cross-
examined by the defense, Tupil readily admitted having taken part in the phony
buy-bust operation against Philip Sy and that he even testified therein as a
prosecution witness. It having been indubitably shown that Tupil has had a
history of framing-up suspects, not to mention his having given false testimony,
the Court cannot give credence to his testimony in this case.
The Court also notes from the decision of the Pasay City trial court that
prosecution witnesses Culili and Mana were also part of the plot to frame-up
Philip Sy. Their credibility are, consequently, similarly questionable.
While the defense of frame-up can be easily fabricated, this claim assumes
importance when it is shown that the apprehending officers, who were also the
prosecutions witnesses, have a penchant for framing innocent people or, in our
colorful vernacular, committing HULIDAP. Under the circumstances, a cloud
[23]

of doubt, arising from the lack of credibility of the prosecution witnesses, attends
the finding of guilt against appellants.
Moreover, to corroborate their claim that no buy-bust operation occurred,
appellants were able to present disinterested witnesses who had no personal
or business relationship with them:
 Tessie Lesiguiez is a balut and cigarette vendor who sells her wares just
beside the 7-11 convenient store, where the alleged buy-bust operation
occurred. She testified that she was at her post from the evening of June 26,
1998 until 7:30 a.m. of June 27, 1998 and that, during the entire time, she did
not witness any buy-bust operation.
Carmelita Villanueva is another vendor who has a stall beside 7-11. She
testified that she tended her stall selling viands between 6:30 a.m. and 8:00
a.m. of June 27, 1998 and that she does not recall any unusual incident that
happened at that time.
Erna Boadilla is a next-door neighbor of Tiu. She testified that she is
usually awake by 5:00 a.m. to prepare breakfast for her husband. She said that
in the morning of June 27, 1998, she heard their dogs barking, prompting her
to peep through their window. From her vantage point, she saw 5 or 6 armed
men accosting Tiu who was, thereafter, boarded inside a car.
In criminal cases, it is incumbent upon the prosecution to establish the guilt
of the accused beyond reasonable doubt. The Court finds that the guilt of
[24]

appellants herein has not been proven beyond reasonable doubt, as measured
by the required moral certainty for conviction. While there has been no strong
proof that appellants were indeed framed-up, in criminal cases the overriding
consideration is not whether the Court doubts the innocence of the accused but
whether it entertains a reasonable doubt as to his guilt. Considering the shady
[25]

credibility of the prosecution witnesses, and the evidence presented by

appellants, the constitutional presumption of innocence has not been
overcome.
WHEREFORE, decision of the Regional Trial Court of Marikina City,
Branch 272, in Criminal Case No. 98-593-D-MK, is
hereby REVERSED and SET ASIDE and appellants are ACQUITTED of the
crime charged. Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur.
Ynares-Santiago, J., on leave.
 SECOND DIVISION

G.R. No. 138033 February 22, 2006

RENATO BALEROS, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

GARCIA, J.:

In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal
of the January 13, 1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as
reiterated in its March 31, 1999 resolution2 denying petitioners motion for reconsideration.

The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila,
Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO)
guilty of attempted rape.3

The accusatory portion of the information4 dated December 17, 1991 charging petitioner with
attempted rape reads as follow:

That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within
the jurisdiction of this Honorable Court, the above-named accused, by forcefully covering the face of
Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects, did then
and there willfully, unlawfully and feloniously commenced the commission of rape by lying on top of
her with the intention to have carnal knowledge with her but was unable to perform all the acts of
execution by reason of some cause or accident other than his own spontaneous desistance, said
acts being committed against her will and consent to her damage and prejudice.

Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not

Guilty."5 Thereafter, trial on the merits ensued.

To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private
complainant Martina Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel
Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some detail in the
decision of the CA, established the following facts:

Like most of the tenants of the Celestial Marie Building (hereafter "Building", ) along A.H. Lacson
Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania
(Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991.

In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in
front of her bedroom door, her maid, Marvilou, slept on a folding bed.

Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of
cloth pressed on her face. She struggled but could not move. Somebody was pinning her down on
the bed, holding her tightly. She wanted to scream for help but the hands covering her mouth with
cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting
off her attacker by kicking him until at last her right hand got free. With this the opportunity
presented itself when she was able to grab hold of his sex organ which she then squeezed.

The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over
the intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid.,
p. 8). Who it was she did not, however, know. The only thing she had made out during their struggle
was the feel of her attackers clothes and weight. His upper garment was of cotton material while
that at the lower portion felt smooth and satin-like (Ibid, p. 17). He was wearing a t-shirt and
shorts Original Records, p. 355).

To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo
Acosta and Rommel Montes were staying, MALOU then proceeded to seek help. xxx.

It was then when MALOU saw her bed topsy-turvy. Her nightdress was stained with blue (TSN,
July 5, 1993, pp. 13-14). Aside from the window with grills which she had originally left opened,
another window inside her bedroom was now open. Her attacker had fled from her room going
through the left bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills
which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).

xxx xxx xxx

Further, MALOU testified that her relation with CHITO, who was her classmate , was friendly until
a week prior to the attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita"
(TSN, July 5, 1993, p. 22) and she rejected him. . (TSN, July 5, 1993, p. 22).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in
the early morning of December 13, 1991, wearing a white t-shirt with a marking on the front of
the T-shirt T M and a Greek letter (sic) and below the quoted letters the word 1946 UST
Medicine and Surgery (TSN, October 9, 1992, p. 9) and black shorts with the brand name Adidas
(TSN, October 16, 1992, p.7) and requested permission to go up to Room 306. This Unit was being
leased by Ansbert Co and at that time when CHITO was asking permission to enter, only Joseph
Bernard Africa was in the room.

He asked CHITO to produce the required written authorization and when CHITO could not, S/G
Ferolin initially refused [but later, relented] . S/G Ferolin made the following entry in the security
guards logbook :

"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from
our tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant
this coming summer break as he said so I let him sign it here

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph
Bernard Africa (Joseph), .

xxx xxx xxx

Joseph was already inside Room 306 at 9 oclock in the evening of December 12, 1991. xxx by the
time CHITOs knocking on the door woke him up, . He was able to fix the time of CHITOs arrival
at 1:30 A.M. because he glanced at the alarm clock beside the bed when he was awakened by the
knock at the door .

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he
let the latter in. . It was at around 3 oclock in the morning of December 13, 1991 when he woke up
again later to the sound of knocking at the door, this time, by Bernard Baptista (Bernard), .

xxx. With Bernard, Joseph then went to MALOUs room and thereat was shown by Bernard the open
window through which the intruder supposedly passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to
CHITO . He mentioned to the latter that something had happened and that they were not being
allowed to get out of the building. Joseph also told CHITO to follow him to Room 310.

CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in
Room 310 so Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see if
the others were there. xxx.

People from the CIS came by before 8 oclock that same morning . They likewise invited CHITO
and Joseph to go with them to Camp Crame where the two (2) were questioned .

An occupant of Room 310 Christian Alcala (Christian) recalled in Court that in the afternoon of
December 13, 1991, after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo
Acosta (Gary) were called to the Building and were asked by the CIS people to look for anything not
belonging to them in their Unit. While they were outside Room 310 talking with the authorities,
Rommel Montes (Loyloy), another roommate of his, went inside to search the Unit. Loyloy found
(TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their
unit which they did not know was there and surrender the same to the investigators. When he saw
the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the
latter usually bringing it to school inside the classroom (Ibid, p. 45).

In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt
with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3)
white T-shirts, an underwear, and socks (Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the
handkerchief (Exhibit "D-3) to be CHITOs because CHITO had lent the very same one to him .
The t-shirt with CHITOs fraternity symbol, CHITO used to wear on weekends, and the handkerchief
he saw CHITO used at least once in December.

That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted
mainly of Renato R. Alagadans testimony.

xxx xxx xxx.

The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to
be full but was closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian,
Gary, Bernard, and Renato went back to Room 310 at around 3 to 4 oclock that afternoon along
with some CIS agents, they saw the bag at the same place inside the bedroom where Renato had
seen CHITO leave it. Not until later that night at past 9 oclock in Camp Crame, however, did Renato
know what the contents of the bag were.

xxx xxx xxx.

The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp
Crame, having acted in response to the written request of PNP Superintendent Lucas M.
Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory
examination on the specimen collated and submitted. Her Chemistry Report No. C-487-91 (Exhibit
"E"; Ibid., p. 112) reads in part, thus:

"SPECIMEN SUBMITTED:

xxx xxx xxx:

1) One (1) small white plastic bag marked UNIMART with the following:

xxx xxx xxx

Exh C One (1) night dress colored salmon pink.

2) One (1) small white pl astic bag marked JONAS with the following:

Exh. D One (1) printed handkerchief.

Exh. E One (1) white T-shirt marked TMZI.

Exh. F One (1) black short (sic) marked ADIDAS.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated
specimens.

FINDINGS:

Toxicological examination conducted on the above stated specimens gave the following results:

Exhs. C and D POSITIVE to the test for chloroform, a volatile poison.

Exhs. A, B, E and F are insufficient for further analysis.

CONCLUSION:

Exhs. C and D contain chloroform, a volatile poison."6 (Words in bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He denied committing
the crime imputed to him or making at any time amorous advances on Malou. Unfolding a different
version of the incident, the defense sought to establish the following, as culled from the same
decision of the appellate court:

In December of 1991, CHITO was a medical student of (UST). With Robert Chan and Alberto
Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity . MALOU, , was known to
him being also a medical student at the UST at the time.

From Room 306 of the Celestial Marie Building , CHITO, wearing the prescribed barong tagalog
over dark pants and leather shoes, arrived at their Fraternity house located at Dos Castillas,
Sampaloc, Manila at about 7 oclock in the evening of December 12, 1991. He was included in the
entourage of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of
their senior fraternity brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills, San Juan. xxx.

The party was conducted at the garden beside [the] swimming pool . Soon after, the four (4)
presidential nominees of the Fraternity, CHITO included, were being dunked one by one into the
pool. xxx.

xxx CHITO had anticipated his turn and was thus wearing his t-shirt and long pants when he was
dunked. Perla Duran, , offered each dry clothes to change into and CHITO put on the white t-
shirt with the Fraternitys symbol and a pair of black shorts with stripes. xxx .

Again riding on Albertos car and wearing "barong tagalog over a white t-shirt with the symbol TAU
Sigma Phi, black short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left
the party with Robert Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and
proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray
traveling bag containing "white t-shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at
room 306 in the afternoon of the previous day .

At the gate of the Building, CHITO knocked and , S/G Ferolin, looking at his watch, approached.
Because of this, CHITO also looked at his own watch and saw that the time was 1:30 (Ibid., p. 26).
S/G Ferolin initially refused CHITO entry . xxx.

S/G Ferolin called Unit 306 . xxx. When S/G Ferolin finally let him in, already about ten (10)
minutes had lapsed since CHITO first arrived (Ibid., p. 25).

CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window
and for five (5) minutes vainly tried to open the door until Rommel Montes, approached him and
even commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried
to open the door of Unit 306 but was likewise unsuccessful. CHITO then decided to just call out to
Joseph while knocking at the door.

It took another (5) minutes of calling out and knocking before Joseph, , at last answered the door.
Telling him, "Ikaw na ang bahala diyan" Joseph immediately turned his back on CHITO and went
inside the bedroom. CHITO , changed to a thinner shirt and went to bed. He still had on the same
short pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).

At 6 oclock in the morning of December 13, 1991, CHITO woke up . He was already in his school
uniform when, around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter
why this was so and, without elaborating on it, Joseph told him that something had happened and to
just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to
identify, went to the room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx.

Joseph told him that the security guard was not letting anybody out of the Building . When two (2)
CIS men came to the unit asking for Renato Baleros, CHITO presented himself. Congressman
Rodolfo B. Albano, father of MALOU, then asked him for the key to Room 306.

xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the
two (2) of them, CHITO and Joseph, were brought to Camp Crame.

When they arrived at Camp Crame , Col. Managuelod asked Joseph inside his room and talked to
him for 30 minutes. xxx. No one interviewed CHITO to ask his side.

xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo
physical examination at the Camp Crame Hospital .. At the hospital, CHITO and Joseph were
physically examined by a certain Dr. de Guzman who told them to strip .

xxx xxx xxx

CHITO had left his gray bag containing, among others, the black striped short pants lent to him by
Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 oclock
in the morning of December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when
he and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it
there and it was not opened up in his presence but the contents of the bag were already laid out on
the table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items thereat were
his.

The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag
which he had left at Room 306 in the early evening of December 12, 1991 before going to the
fraternity house. He likewise disavowed placing said black Adidas short pants in his gray bag when
he returned to the apartment at past 1:00 oclock in the early morning of December 13, 1991 (TSN,
June 16, 1994, p. 24), nor when he dressed up at about 6 oclock in the morning to go to school and
brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not
aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for the
first time that the black Adidas short pants was alluded to be among the items inside his gray bag
late in the afternoon, when he was in Camp Crame.

Also taking the witness stand for the defense were petitioners fraternity brothers, Alberto Leonardo
and Robert Chan, who both testified being with CHITO in the December 12, 1991 party held in Dr.
Durans place at Greenhills, riding on the same car going to and coming from the party and dropping
the petitioner off the Celestial Marie building after the party. Both were one in saying that CHITO was
wearing a barong tagalog, with t-shirt inside, with short pants and leather shoes at the time they
parted after the party.7 Rommel Montes, a tenant of Room 310 of the said building, also testified
seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the
door of Room 306 while clad in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes
after the dunking party held in her fathers house.8 Presented as defense expert witness was
Carmelita Vargas, a forensic chemistry instructor whose actual demonstration in open court showed
that chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth
on which it is applied.9

On December 14, 1994, the trial court rendered its decision10 convicting petitioner of attempted rape
and accordingly sentencing him, thus:

WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused
Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape
as principal and as charged in the information and hereby sentences him to suffer an imprisonment
ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as
Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all the accessory penalties
provided by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the sum
of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorneys fees of
P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.

SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR
No. 17271.

As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed
the trial courts judgment of conviction, to wit:

WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the
decision appealed from is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED.11

Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed
resolution of March 31, 1999.12

Petitioner is now with this Court, on the contention that the CA erred -

1. In not finding that it is improbable for petitioner to have committed the attempted rape
imputed to him, absent sufficient, competent and convincing evidence to prove the offense
charged.

2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence

since the prosecution failed to satisfy all the requisites for conviction based thereon.

3. In not finding that the circumstances it relied on to convict the petitioner are unreliable,
inconclusive and contradictory.

4. In not finding that proof of motive is miserably wanting in his case.

5. In awarding damages in favor of the complainant despite the fact that the award was
improper and unjustified absent any evidence to prove the same.
 6. In failing to appreciate in his favor the constitutional presumption of innocence and that
moral certainty has not been met, hence, he should be acquitted on the ground that the
offense charged against him has not been proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred
in affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of
attempted rape.

After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the
Court is disposed to rule for petitioners acquittal, but not necessarily because there is no direct
evidence pointing to him as the intruder holding a chemical-soaked cloth who pinned Malou down on
the bed in the early morning of December 13, 1991.

Positive identification pertains essentially to proof of identity and not per se to that of being an
eyewitness to the very act of commission of the crime. There are two types of positive identification.
A witness may identify a suspect or accused as the offender as an eyewitness to the very act of the
commission of the crime. This constitutes direct evidence. There may, however, be instances where,
although a witness may not have actually witnessed the very act of commission of a crime, he may
still be able to positively identify a suspect or accused as the perpetrator of a crime as when, for
instance, the latter is the person or one of the persons last seen with the victim immediately before
and right after the commission of the crime. This is the second type of positive identification, which
forms part of circumstantial evidence.13 In the absence of direct evidence, the prosecution may resort
to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret
and under condition where concealment is highly probable. If direct evidence is insisted under all
circumstances, the prosecution of vicious felons who committed heinous crimes in secret or
secluded places will be hard, if not well-nigh impossible, to prove.14

Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence
may be sufficient for conviction. The provision reads:

Sec. 4. Circumstantial evidence, when sufficient Circumstantial evidence is sufficient for conviction
if

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and

c) The combination of all the circumstances is such as to produce a conviction beyond

reasonable doubt.

In the present case, the positive identification of the petitioner forms part of circumstantial evidence,
which, when taken together with the other pieces of evidence constituting an unbroken chain, leads
to only fair and reasonable conclusion, which is that petitioner was the intruder in question.

We quote with approval the CAs finding of the circumstantial evidence that led to the identity of the
petitioner as such intruder:

Chito was in the Building when the attack on MALOU took place. He had access to the room of
MALOU as Room 307 where he slept the night over had a window which allowed ingress and egress
to Room 306 where MALOU stayed. Not only the Building security guard, S/G Ferolin, but Joseph
Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-
shirt when he arrived at the Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though
it was dark during their struggle, MALOU had made out the feel of her intruders apparel to be
something made of cotton material on top and shorts that felt satin-smooth on the bottom.

From CHITOs bag which was found inside Room 310 at the very spot where witness Renato
Alagadan saw CHITO leave it, were discovered the most incriminating evidence: the handkerchief
stained with blue and wet with some kind of chemicals; a black "Adidas" satin short pants; and a
white fraternity T-shirt, also stained with blue. A different witness, this time, Christian Alcala,
identified these garments as belonging to CHITO. As it turned out, laboratory examination on these
items and on the beddings and clothes worn by MALOU during the incident revealed that the
handkerchief and MALOUs night dress both contained chloroform, a volatile poison which causes
first degree burn exactly like what MALOU sustained on that part of her face where the chemical-
soaked cloth had been pressed.

This brings the Court to the issue on whether the evidence adduced by the prosecution has
established beyond reasonable doubt the guilt of the petitioner for the crime of attempted rape.

The Solicitor General maintained that petitioner, by pressing on Malous face the piece of cloth
soaked in chemical while holding her body tightly under the weight of his own, had commenced the
performance of an act indicative of an intent or attempt to rape the victim. It is argued that
petitioners actuation thus described is an overt act contemplated under the law, for there can not be
any other logical conclusion other than that the petitioner intended to ravish Malou after he
attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds that
if petitioners intention was otherwise, he would not have lain on top of the victim.15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal
knowledge or intercourse with a woman under any of the following circumstances: (1) By using force
or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When
the woman is under twelve years of age or is demented. Under Article 6, in relation to the
aforementioned article of the same code, rape is attempted when the offender commences the
commission of rape directly by overt acts and does not perform all the acts of execution which
should produce the crime of rape by reason of some cause or accident other than his own
spontaneous desistance.16

Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in
People vs. Lamahang,17 stated that "the attempt which the Penal Code punishes is that which has a
logical connection to a particular, concrete offense; that which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation."
Absent the unavoidable connection, like the logical and natural relation of the cause and its effect, as
where the purpose of the offender in performing an act is not certain, meaning the nature of the act
in relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate
offense, which is not a juridical fact from the standpoint of the Penal Code.18

There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the
present case. The next question that thus comes to the fore is whether or not the act of the
petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt
act of rape.
1avv phil.net

Overt or external act has been defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles nor
by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense.19

Harmonizing the above definition to the facts of this case, it would be too strained to construe
petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to
sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not
commence at all the performance of any act indicative of an intent or attempt to rape Malou. It
cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part
to undress Malou, let alone touch her private part. For what reason petitioner wanted the
complainant unconscious, if that was really his immediate intention, is anybodys guess. The CA
maintained that if the petitioner had no intention to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would
have taken if the victim had been rendered unconscious. Wrote the CA:

The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual
organ is not yet exposed because his intended victim is still struggling. Where the intended victim is
an educated woman already mature in age, it is very unlikely that a rapist would be in his naked
glory before even starting his attack on her. He has to make her lose her guard first, or as in this
case, her unconsciousness.20

At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule
on evidence in criminal cases. For, mere speculations and probabilities cannot substitute for proof
required to establish the guilt of an accused beyond reasonable doubt.21

In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape,
pointing out that:

xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for
there to be an attempted rape, the accused must have commenced the act of penetrating his sexual
organ to the vagina of the victim but for some cause or accident other than his own spontaneous
desistance, the penetration, however, slight, is not completed.

xxx xxx xxx

Petitioners act of lying on top of the complainant, embracing and kissing her, mashing her breasts,
inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and
detestable acts, do not constitute attempted rape absent any showing that petitioner actually
commenced to force his penis into the complainants sexual organ. xxx.

Likewise in People vs. Pancho,23 the Court held:

xxx, appellant was merely holding complainants feet when his Tito Onio arrived at the alleged locus
criminis. Thus, it would be stretching to the extreme our credulity if we were to conclude that mere
holding of the feet is attempted rape.

Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of
any wrongdoing whatsoever. The information filed against petitioner contained an allegation that he
forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the trial,
Malou testified about the pressing against her face of the chemical-soaked cloth and having
struggled after petitioner held her tightly and pinned her down. Verily, while the series of acts
committed by the petitioner do not determine attempted rape, as earlier discussed, they constitute
unjust vexation punishable as light coercion under the second paragraph of Article 287 of the
Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime
the right to be informed of the nature and cause of the accusation,24 it cannot be said that petitioner
was kept in the dark of the inculpatory acts for which he was proceeded against. To be sure, the
information against petitioner contains sufficient details to enable him to make his defense. As aptly
observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or
compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the
element of restraint or compulsion for the reason that this term is broad enough to include any
human conduct which, although not productive of some physical or material harm, would unjustly
annoy or irritate an innocent person.25 The paramount question is whether the offenders act causes
annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is
directed.26 That Malou, after the incident in question, cried while relating to her classmates what she
perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond
cavil that she was disturbed, if not distressed by the acts of petitioner.

The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal
Code is arresto menor or a fine ranging from 5.00 to 200.00 or both.

WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial
Court of Manila, is hereby REVERSED and SET ASIDE and a new one entered ACQUITTING
petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged
GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine
of 200.00, with the accessory penalties thereof and to pay the costs.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice
BERSAMIN, J.:
Frustrated homicide requires intent to kill on the part of the offender.
Without proof of such intent, the felony may only be serious physical
injuries. Intent to kill may be established through the overt and external
acts and conduct of the offender before, during and after the assault, or by
the nature, location and number of the wounds inflicted on the victim.

The Case

Under review at the instance of the petitioner is the decision promulgated

on September 27, 2006,[1] whereby the Court of Appeals (CA) affirmed his
conviction for frustrated homicide committed against Alexander Flojo
under the judgment rendered on September 10, 2003 by the Regional Trial
Court (RTC), Branch 213, in Mandaluyong City in Criminal Case No. 191-
MD.[2]

Antecedents

The CA summarized the versions of the parties as follows:

x x x [O]n December 24, 1997, at about ten o'clock in the evening,

Alexander Flojo (hereafter "Alexander") was fetching water below his
rented house at 443 Aglipay Street, Old Zaniga St., Mandaluyong City when
suddenly Alfredo De Guzman (hereafter "Alfredo"), the brother of his land
lady, Lucila Bautista (hereafter "Lucila"), hit him on the nape. Alexander
informed Lucila about what Alfredo did to him. Lucila apologized to
Alexander by saying, "Pasensya ka na Mang Alex" and told the latter to
just go up. Alexander obliged and went upstairs. He took a rest for about
two hours. Thereafter, at around 12:00 to 12:15 A.M., Alexander went down
and continued to fetch water. While pouring water into a container, Alfredo
suddenly appeared in front of Alexander and stabbed him on his left face
and chest.

Cirilino Bantaya, a son-in-law of Alexander, saw the latter bleeding on the

left portion of his body and begging for help. Alexander then told Cirilino
that Alfredo stabbed him. Cirilino immediately loaded Alexander into his
motorcycle (backride) and brought him to the Mandaluyong City Medical
Center. Upon arrival at the hospital, the doctors immediately rendered
medical assistance to Alexander. Alexander stayed in the emergency room
of said hospital for about 30 to 40 minutes. Then, he was brought to the
second floor of the said hospital where he was confined for two days.
Thereafter, Alexander was transferred to the Polymedic General Hospital
where he was subjected for (sic) further medical examination.

Alexander sustained two stabbed (sic) wounds. (sic) One of which was on
the zygoma, left side, and about one (1) cm. long. The other is on his upper
left chest which penetrated the fourth intercostal space at the proximal
clavicular line measuring about two (2) cm. The second stabbed (sic)
wound penetrated the thoracic wall and left lung of the victim which
resulted to blood air (sic) in the thoracic cavity thus necessitating the
insertion of a thoracostomy tube to remove the blood. According to Dr.
Francisco Obmerga, the physician who treated the victim at the
Mandaluyong City Medical Center, the second wound was fatal and could
have caused Alexander's death without timely medical intervention. (Tsn,
July 8, 1998, p.8).

On the other hand, Alfredo denied having stabbed Alexander. According to

him, on December 25, 1997 at around midnight, he passed by Alexander
who was, then, fixing a motorcycle. At that point, he accidentally hit
Alexander's back, causing the latter to throw invective words against him.
He felt insulted, thus, a fistfight ensued between them. They even rolled on
the ground. Alfredo hit Alexander on the cheek causing blood to ooze from
the latter's face.[3]
The RTC convicted the petitioner, decreeing thusly:

PRESCINDING (sic) FROM THE FOREGOING CONSIDERATIONS, the

court finds accused Alfredo De Guzman y Agkis a.k.a., "JUNIOR," guilty
beyond reasonable doubt for (sic) the crime of FRUSTRATED HOMICIDE
defined and penalized in Article 250 of the Revised Penal Code and in the
absence of any modifying circumstance, he is hereby sentenced to suffer the
indeterminate penalty of Six (6) Months and One (1) day of PRISION
CORR[R]ECCIONAL as MINIMUM to Six (6) Years and One (1) day of
PRISION MAYOR as MAXIMUM.

The accused is further ordered to pay the private complainant

compensatory damages in the amount of P14,170.35 representing the actual
pecuniary loss suffered by him as he has duly proven.

SO ORDERED.[4]
On appeal, the petitioner contended that his guilt had not been proved
beyond reasonable doubt; that intent to kill, the critical element of the
crime charged, was not established; that the injuries sustained by
Alexander were mere scuffmarks inflicted in the heat of anger during the
fistfight between them; that he did not inflict the stab wounds, insisting
that another person could have inflicted such wounds; and that he had
caused only slight physical injuries on Alexander, for which he should be
accordingly found guilty.

Nonetheless, the CA affirmed the petitioner's conviction, viz:

WHEREFORE, premises considered, the instant appeal is DISMISSED.

The September 10, 2003 Decision of the Regional Trial Court of
Mandaluyong City, Branch 213, is hereby AFFIRMED in toto.

SO ORDERED.[5]
The CA denied the petitioner's motion for reconsideration on May 2,
2007.[6]

Issue

Was the petitioner properly found guilty beyond reasonable doubt of

frustrated homicide?

Ruling

The appeal lacks merit.

The elements of frustrated homicide are: (1) the accused intended to kill his
victim, as manifested by his use of a deadly weapon in his assault; (2) the
victim sustained fatal or mortal wound but did not die because of timely
medical assistance; and (3) none of the qualifying circumstances for
murder under Article 248 of the Revised Penal Code, as amended, is
present.[7] Inasmuch as the trial and appellate courts found none of the
qualifying circumstances in murder under Article 248 to be present, we
immediately proceed to ascertain the presence of the two other elements.

The petitioner adamantly denies that intent to kill was present during the
fistfight between him and Alexander. He claims that the heightened
emotions during the fistfight naturally emboldened both of them, but he
maintains that he only inflicted minor abrasions on Alexander, not the stab
wounds that he appeared to have sustained. Hence, he should be held liable
only for serious physical injuries because the intent to kill, the necessary
element to characterize the crime as homicide, was not sufficiently
established. He avers that such intent to kill is the main element that
distinguishes the crime of physical injuries from the crime of homicide; and
that the crime is homicide only if the intent to kill is competently shown.

The essential element in frustrated or attempted homicide is the intent of

the offender to kill the victim immediately before or simultaneously with
the infliction of injuries. Intent to kill is a specific intent that the State must
allege in the information, and then prove by either direct or circumstantial
evidence, as differentiated from a general criminal intent, which is
presumed from the commission of a felony by dolo.[8] Intent to kill, being a
state of mind, is discerned by the courts only through external
manifestations, i.e., the acts and conduct of the accused at the time of the
assault and immediately thereafter. In Rivera v. People,[9] we considered
the following factors to determine the presence of intent to kill, namely: (1)
the means used by the malefactors; (2) the nature, location, and number of
wounds sustained by the victim; (3) the conduct of the malefactors before,
during, or immediately after the killing of the victim; and (4) the
circumstances under which the crime was committed and the motives of
the accused. We have also considered as determinative factors the motive of
the offender and the words he uttered at the time of inflicting the injuries
on the victim.[10]

Here, both the trial and the appellate court agreed that intent to kill was
present. We concur with them. Contrary to the petitioner's submission, the
wounds sustained by Alexander were not mere scuffmarks inflicted in the
heat of anger or as the result of a fistfight between them. The petitioner
wielded and used a knife in his assault on Alexander. The medical records
indicate, indeed, that Alexander sustained two stab wounds, specifically,
one on his upper left chest and the other on the left side of his face. The
petitioner's attack was unprovoked with the knife used therein causing such
wounds, thereby belying his submission, and firmly proving the presence of
intent to kill. There is also to be no doubt about the wound on Alexander's
chest being sufficient to result into his death were it not for the timely
medical intervention.

With the State having thereby shown that the petitioner already performed
all the acts of execution that should produce the felony of homicide as a
consequence, but did not produce it by reason of causes independent of his
will, i.e., the timely medical attention accorded to Alexander, he was
properly found guilty of frustrated homicide.

We have no cogent reason to deviate from or to disregard the findings of

the trial and appellate courts on the credibility of Alexander's testimony. It
is not disputed that the testimony of a single but credible and trustworthy
witness sufficed to support the conviction of the petitioner. This guideline
finds more compelling application when the lone witness is the victim
himself whose direct and positive identification of his assailant is almost
always regarded with indubitable credibility, owing to the natural tendency
of the victim to seek justice for himself, and thus strive to remember the
face of his assailant and to recall the manner in which the latter committed
the crime.[11] Moreover, it is significant that the petitioner's mere denial of
the deadly manner of his attack was contradicted by the credible physical
evidence corroborating Alexander's statements. Under the circumstances,
we can only affirm the petitioner's conviction for frustrated homicide.

The affirmance of the conviction notwithstanding, we find the

indeterminate penalty of "Six (6) Months and One (1) day of PRISION
CORR[R]ECCIONAL as MINIMUM to Six (6) Years and One (1) day of
PRISION MAYOR as MAXIMUM"[12] fixed by the RTC erroneous despite
the CA concurring with the trial court thereon. Under Section 1 of
the Indeterminate Sentence Law, an indeterminate sentence is imposed on
the offender consisting of a maximum term and a minimum term.[13] The
maximum term is the penalty properly imposed under the Revised Penal
Code after considering any attending modifying circumstances; while the
minimum term is within the range of the penalty next lower than that
prescribed by the Revised Penal Code for the offense committed.
Conformably with Article 50 of the Revised Penal Code,[14] frustrated
homicide is punished by prision mayor, which is next lower to reclusion
temporal, the penalty for homicide under Article 249 of the Revised Penal
Code. There being no aggravating or mitigating circumstances present,
however, prision mayor in its medium period from eight years and one day
to 10 years is proper. As can be seen, the maximum of six years and one day
of prision mayor as fixed by the RTC and affirmed by the CA was not
within the medium period of prision mayor. Accordingly, the correct
indeterminate sentence is four years of prision correccional, as the
minimum, to eight years and one day of prision mayor, as the maximum.

The RTC and the CA also agreed on limiting the civil liability to the sum of
P14,170.35 as compensatory damages "representing the actual pecuniary
loss suffered by [Alexander] as he has duly proven."[15] We need to revise
such civil liability in order to conform to the law, the Rules of Court and
relevant jurisprudence. In Bacolod v. People,[16] we emphatically declared
to be "imperative that the courts prescribe the proper penalties when
convicting the accused, and determine the civil liability to be imposed on
the accused, unless there has been a reservation of the action to recover
civil liability or a waiver of its recovery." We explained why in the following
manner:

It is not amiss to stress that both the RTC and the CA disregarded their
express mandate under Section 2, Rule 120 of the Rules of Court to have
the judgment, if it was of conviction, state: "(1) the legal qualification of the
offense constituted by the acts committed by the accused and the
aggravating or mitigating circumstances which attended its commission;
(2) the participation of the accused in the offense, whether as principal,
accomplice, or accessory after the fact; (3) the penalty imposed upon
the accused; and (4) the civil liability or damages caused by his
wrongful act or omission to be recovered from the accused by
the offended party, if there is any, unless the enforcement of the
civil liability by a separate civil action has been reserved or
waived." Their disregard compels us to act as we now do lest the Court be
unreasonably seen as tolerant of their omission. That the Spouses Cogtas
did not themselves seek the correction of the omission by an appeal is no
hindrance to this action because the Court, as the final reviewing tribunal,
has not only the authority but also the duty to correct at any time a matter
of law and justice.

We also pointedly remind all trial and appellate courts to avoid omitting
reliefs that the parties are properly entitled to by law or in equity under the
established facts. Their judgments will not be worthy of the name unless
they thereby fully determine the rights and obligations of the litigants. It
cannot be otherwise, for only by a full determination of such rights and
obligations would they be true to the judicial office of administering justice
and equity for all. Courts should then be alert and cautious in their
rendition of judgments of conviction in criminal cases. They should
prescribe the legal penalties, which is what the Constitution and the law
require and expect them to do. Their prescription of the wrong penalties
will be invalid and ineffectual for being done without jurisdiction or in
manifest grave abuse of discretion amounting to lack of jurisdiction. They
should also determine and set the civil liability ex delicto of the accused, in
order to do justice to the complaining victims who are always entitled to
them. The Rules of Court mandates them to do so unless the enforcement
of the civil liability by separate actions has been reserved or waived.[17]
Alexander as the victim in frustrated homicide suffered moral injuries
because the offender committed violence that nearly took away the victim's
life. "Moral damages include physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate
result of the defendant's wrongful act for omission."[18] Indeed, Article 2219,
(1), of the Civil Code expressly recognizes the right of the victim in crimes
resulting in physical injuries.[19] Towards that end, the Court, upon its
appreciation of the records, decrees that P30,000.00 is a reasonable award
of moral damages.[20] In addition, AAA was entitled to recover civil
indemnity of P30,000.00.[21] Both of these awards did not require
allegation and proof.

In addition, the amounts awarded as civil liability of the petitioner shall

earn interest of 6% per annum reckoned from the finality of this decision
until full payment by the accused.

WHEREFORE, the Court AFFIRMS the decision promulgated on September 27, 2006
finding petitioner Alfredo De Guzman, Jr. GUILTY beyond reasonable doubt
of FRUSTRATED HOMICIDE, and SENTENCES him to suffer the indeterminate penalty of
four years of prision correccional, as the minimum, to eight years and one day of prision
mayor, as the maximum; ORDERS the petitioner to pay to Alexander Flojo civil indemnity of
P30,000.00; moral damages of P30,000.00; and compensatory damages of P14,170.35, plus
interest of 6% per annum on all such awards from the finality of this decision until full payment;
and DIRECTS the petitioner to pay the costs of suit.

SO ORDERED.
 THIRD DIVISION

[G.R. No. 116736. July 24, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN

ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN
DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL
GARCIA y RIVERA, accused-appellants.

DECISION
PANGANIBAN, J.:

A person who commits a felony is liable for the direct, natural and logical
consequences of his wrongful act even where the resulting crime is more
serious than that intended. Hence, an accused who originally intended to
conceal and to bury what he thought was the lifeless body of the victim can be
held liable as a principal, not simply as an accessory, where it is proven that the
said victim was actually alive but subsequently died as a direct result of such
concealment and burial. Nonetheless, in the present case, Appellant Garcia
can not be held liable as a principal because the prosecution failed to allege
such death through drowning in the Information. Neither may said appellant be
held liable as an accessory due to his relationship with the principal killer,
Appellant Ortega, who is his brother-in-law.

Statement of the Case

This case springs from the joint appeal interposed by Appellants Benjamin
Ortega, Jr. and Manuel Garcia from the Decision, dated February 9, 1994
[1]

written by Judge Adriano R. Osorio, finding them guilty of murder.

[2]

Appellants were charged by State Prosecutor Bernardo S. Razon in an

Information dated October 19, 1992, as follows:
[3]

That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines

and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and mutually helping one another, without any justifiable
cause, with treachery and evident premeditation and with abuse of superior
strenght (sic) and with deliberate intent to kill, did then and there willfully,
 unlawfully and feloniously attack, assault and stab repeatedly with a pointed
weapon on the different parts of the body one ANDRE MAR MASANGKAY
y ABLOLA, thereby inflicting upon the latter serious physical injuries which
directly caused his death.
During arraignment, Appellants Ortega and Garcia, assisted by counsel de
oficio, pleaded not guilty to the charge. Accused John Doe was then at
[4] [5]

large. After trial in due course, the court a quopromulgated the questioned
[6]

Decision. The dispositive portion reads: [7]

WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel

Garcia y Rivera [g]uilty beyond reasonable doubt of the crime charged, the
Court hereby sentenced (sic) them to suffer the penalty of RECLUSION
PERPETUA and to pay the costs of suit.
Accused are hereby ordered to pay the offended party the sum of P35,000.00
for funeral expenses of deceased Andre Mar Masangkay and death indemnity
of P50,000.00.
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo
P. Velicaria who took over from the Public Attorneys Office as counsel for the
[8]

accused.

The Facts
Evidence for the Prosecution

The trial court summarized the testimonies of the prosecution witnesses as

follows: [9]

Diosdado Quitlong substantially testified that on October 15, 1992 at about

5:30 in the afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto,
Romeo Ortega, Roberto San Andres were having a drinking spree in the
compound near the house of Benjamin Ortega, Jr. at Daangbakal, Dalandanan,
Valenzuela, Metro Manila. That while they were drinking, accused Benjamin
Ortega, Jr. and Manuel Garcia who were [already] drunk arrived and joined
them. That victim Andre Mar Masangkay answered the call of nature and went
to the back portion of the house. That accused Benjamin Ortega, Jr. followed
him and later they [referring to the participants in the drinking session] heard
the victim Andre Mar shouted, Dont, help me! (Huwag, tulungan ninyo
ako!) That he and Ariel Caranto ran towards the back portion of the house and
[they] saw accused Benjamin Ortega, Jr., on top of Andre Mar Masangkay
who was lying down in a canal with his face up and stabbing the latter with a
long bladed weapon. That Ariel Caranto ran and fetched Benjamin Ortega, Sr.,
the father of accused Benjamin, Jr. That he [Quitlong] went to Romeo Ortega
in the place where they were having the drinking session [for the latter] to
pacify his brother Benjamin, Jr. That Romeo Ortega went to the place of the
stabbing and together with Benjamin Ortega, Jr. and Manuel Garcia lifted
Andre Mar Masangkay from the canal and brought Andre Mar to the well and
dropped the latter inside the well. That Romeo Ortega, Benjamin Ortega, Jr.
and Manuel Garcia then dropped stones measuring 11 to 12 inches high, 2 feet
in length and 11 to 12 inches in weight to the body of Andre Mar Masangkay
inside the well. That Romeo Ortega warned him [Quitlong] not to tell anybody
of what he saw. That he answered in the affirmative and he was allowed to go
home. That his house is about 200 meters from Romeo Ortegas house. That
upon reaching home, his conscience bothered him and he told his mother what
he witnessed.That he went to the residence of Col. Leonardo Orig and reported
the matter. That Col. Orig accompanied him to the Valenzuela Police Station
and some police officers went with them to the crime scene. That accused
Benjamin Ortega, Jr. and Manuel Garcia were apprehended and were brought
to the police station.
On cross-examination, he said that he did not talk to the lawyer before he was
presented as witness in this case. That he narrated the incident to his mother
on the night he witnessed the killing on October 15, 1992. That on October 15,
1992 at 5:30 in the afternoon when he arrived, victim Andre Mar Masangkay,
Romeo Ortega, Serafin and one Boyet were already having [a] drinking spree
and he joined them. That accused Benjamin Ortega, Jr. and Manuel Garcia
were not yet in the place. That the stabbing happened between 12:00 midnight
and 12:30 a.m. That they drank gin with finger foods such as pork and shell
fish. That he met the victim Andre Mar Masangkay only on that
occasion. That accused Benjamin Ortega, Jr. and Manuel Garcia joined them
at about 11:00 p.m. That there was no altercation between Benjamin Ortega,
Jr. and Manuel Garcia in one hand and Andre Mar Masangkay, during the
drinking session. That at about 12:30 a.m. Andre Mar Masangkay answered
the call of nature and went to the back portion of the house. That he cannot see
Andre Mar Masangkay from the place they were having the drinking
session. That he did not see what happened to Andre Mar Masangkay. That he
only heard Masangkay asking for help. That accused Manuel Garcia was still
in the drinking session when he heard Masangkay was asking for help. That
Benjamin Ortega, Jr. and Manuel Garcia are his friends and neighbors. That
when he heard Andre Mar Masangkay was asking for help, he and Ariel
Caranto ran to the back portion of the house and saw Benjamin Ortega, Jr. on
top of Andre Mar Masangkay and stabbing the latter. That Andre Mar
Masangkay was lying down with his back in the canal and Benjamin Ortega,
Jr. on top stabbing the former. That he did not see any injuries on Benjamin
Ortega, Jr. That he called Romeo Ortega to pacify his brother Benjamin,
Jr. That he did not do anything to separate Benjamin Ortega, Jr. and
Masangkay. That he knows that Andre Mar Masangkay was courting Raquel
Ortega. That Raquel Ortega asked permission from Andre Mar Masangkay
when she left between 8:00 and 9:00 p.m. That there was no trouble that
occurred during the drinking session.
PNP Superintendent Leonardo Orig substantially testified that Diosdado
Quitlong is his neighbor for about 9 years. That on October 16, 1992 at 5:00 in
the morning, he was summoned by Diosdado Quitlong and reported to him the
stabbing incident that occurred at Daangbakal near the subdivision he is
living. That he relayed the information to the Valenzuela Police Station and a
police team under police officer Param accompanied them to the place. That
he asked the police officers to verify if there is a body of person inside the
well. That the well was covered with stones and he asked the police officers to
seek the help of theneighbors (sic) to remove the stones inside the well. That
after the stones were removed, the body of the victim was found inside the
well. That the lifeless body was pulled out from the well. That the body has
several stab wounds. That he came to know the victim as Andre Mar
Masangkay. That two men were arrested by the police officers.
On cross-examination, he said that he saw the body when taken out of the well
with several stab wounds. That Diosdado Quitlong told him that he was
drinking with the victim and the assailants at the time of the incident. That
Benjamin Ortega, Jr. stabbed the victim while the latter was answering the call
of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he
conducted [an] autopsy on the cadaver of Andre Mar Masangkay on October
16, 1992 at the Valenzuela Memorial Homes located at Macarthur
Highway. That he prepared the autopsy report and the sketch of human head
and body indicating the location of the stab wounds. That the cause of death is
multiple stab wounds, contributory, [a]sphyxia by submersion in water. That
there were 13 stab wounds, 8 of which were on the frontal part of the body, 2
at the back and there were contused abrasions around the neck and on the left
arm. There was stab wound at the left side of the neck.That the contused
abrasion could be produced by cord or wire or rope. That there is (an) incised
wound on the left forearm. That the stab wounds which were backward
downward of the body involved the lungs. That the victim was in front of the
assailant. That the stab wound on the upper left shoulder was caused when the
assailant was in front of the victim. That the assailant was in front of the
victim when the stab wound near the upper left armpit was inflicted as well as
the stab wound on the left chest wall. That the stab wound on the back left side
 of the body and the stab wound on the back right portion of the body may be
produced when the assailant was at the back of the victim. That the assailant
was in front of the victim when the stab wound[s] on the left elbow and left
arm were inflicted. That the large airway is filled with muddy particles
indicating that the victim was alive when the victim inhaled the muddy
particles. The heart is filled with multiple hemorrhage, loss of blood or
decreased of blood. The lungs is filled with water or muddy particles. The
brain is pale due to loss of blood. The stomach is one half filled with muddy
particles which could [have been] taken in when submerged in water.
On cross-examination, he said that he found 13 stab wounds on the body of
the victim. That he cannot tell if the assailant or the victim were standing. That
it is possible that the stab wounds was (sic) inflicted when both [referring to
participants] were standing or the victim was lying down and the assailant was
on top. That he cannot tell the number of the assailants.

Evidence for the Appellants

Appellant Manuel Garcia testified that in the early morning of October 15,
1992, he and his wife, Maritess Garcia, brought their feverish daughter,
Marjorie, to the Polo Emergency Hospital. He left the hospital at seven o clock
in the morning, went home, changed his clothes and went to work. After office
[10]

hours, he and Benjamin Ortega, Jr. passed by the canteen at their place of
work. After drinking beer, they left at eight o clock in the evening and headed
home. En route, they chanced on Diosdado Quitlong alias Mac-mac and Andre
Mar Masangkay, who invited them to join their own drinking spree. Thereupon,
Appellant Garcias wife came and asked him to go home because their daughter
was still sick. To alleviate his daughters illness, he fetched his mother-in-law
who performed a ritual called tawas. After the ritual, he remained at home and
attended to his sick daughter. He then fell asleep but was awakened by police
officers at six o clock in the morning of the following day.
Maritess Garcia substantially corroborated the testimony of her
husband. She however added two other participants in the drinking session
aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay,
namely, a Mang Serafin and Boyet Santos. [11]

Benjamin Ortega, Jr. likewise substantially corroborated the testimony of

Appellant Manuel Garcia. According to him, between eleven and twelve o
[12]

clock in the evening, Masangkay left the drinking session.Thirty (30) minutes
after Masangkay left, he also left the drinking place to urinate. He went behind
[13]

the house where he saw Masangkay peeping through the room of his sister
Raquel. He ignored Masangkay and continued urinating. After he was through,
[14]

Masangkay approached him and asked where his sister was. He answered that
he did not know. Without warning, Masangkay allegedly boxed him in the
mouth, an attack that induced bleeding and caused him to fall on his
back. When he was about to stand up, Masangkay drew a knife and stabbed
him, hitting him on the left arm, thereby immobilizing him. Masangkay then
gripped his neck with his left arm and threatened to kill him. Unable to move,
Ortega shouted for help. Quitlong came and, to avoid being stabbed, grabbed
Masangkays right hand which was holding the knife.Quitlong was able to wrest
the knife from Masangkay and, with it, he stabbed Masangkay ten (10) times
successively, in the left chest and in the middle of the stomach. When the
stabbing started, Ortega moved to the left side of Masangkay to avoid being
hit. Quitlong chased Masangkay who ran towards the direction of the
[15]

well. Thereafter, Ortega went home and treated his injured left armpit and
lips. Then, he slept.
When he woke up at six o clock the following morning, he saw police officers
in front of his house. Taking him with them, the lawmen proceeded to the
well. From the railroad tracks where he was asked to sit, he saw the police
officers lift the body of a dead person from the well. He came to know the
identity of the dead person only after the body was taken to the police
headquarters. [16]

The Trial Courts Discussion

The trial court explained its basis for appellants conviction as follows: [17]

The Court is convinced that the concerted acts of accused Benjamin Ortega,
Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping
the victim Andre Mar Masangkay who was still alive and breathing inside the
deep well filled with water, head first and threw big stones/rocks inside the
well to cover the victim is a clear indication of the community of design to
finish/kill victim Andre Mar Masangkay. Wounded and unarmed victim Andre
Mar Masangkay was in no position to flee and/or defend himself against the
three malefactors. Conspiracy and the taking advantage of superior strength
were in attendance. The crime committed by the accused is Murder.
Concert of action at the moment of consummating the crime and the form and
manner in which assistance is rendered to the person inflicting the fatal wound
may determine complicity where it would not otherwise be evidence (People
vs. Yu, 80 SCRA 382 (1977)).
 Every person criminally liable for a felony is also civilly liable. Accused
(m)ust reimburse the heirs of victim Andre Mar Masangkay the amount
of P35,000.00 for the funeral expenses of the deceased.

The Issues

In their ten-page brief, appellants fault the trial court with the following: [18]

I. The trial court erred in holding that there is conspiracy on the basis of
the prosecutions evidence that at the time both accused and one
Romeo Ortega lifted the body of Andrew Masangkay from where he
succumbed due to stab wounds and brought and drop said body of
Andrew Masangkay to the well to commit murder;
II. The trial court erred in finding and holding that Andrew Masangkay
was still alive at the time his body was dropped in the well;
III. The trial court erred in convicting Manuel Garcia and in not acquitting
the latter of the crime charged; and
IV. The trial court erred in not finding that if at all Benjamin Ortega Jr. is
guilty only of homicide alone.

On the basis of the records and the arguments raised by the appellants and the
People, we believe that the question to be resolved could be simplified thus: What are
the criminal liabilities, if any, of Appellants Ortega and Garcia?

The Courts Ruling

We find the appeal partly meritorious. Appellant Ortega is guilty only of

homicide. Appellant Garcia deserves acquittal.

First Issue: Liability of Appellant Ortega

The witnesses for the prosecution and defense presented conflicting

narrations. The prosecution witnesses described the commission of the crime
and positively identified appellants as the perpetrators. The witnesses for the
defense, on the other hand, attempted to prove denial and alibi. As to which of
the two contending versions speaks the truth primarily rests on a critical
evaluation of the credibility of the witnesses and their stories. In this regard, the
trial court held:
[19]

The Court has listened intently to the narration of the accused and their
witnesses and the prosecution witnesses and has keenly observed their
behavior and demeanor on the witness stand and is convinced that the story of
the prosecution is the more believable version. Prosecution eyewitness
Diosdado Quitlong appeared and sounded credible and his credibility is
reinforced by the fact that he has no reason to testify falsely against the
accused. It was Diosdado Quitlong who reported the stabbing incident to the
police authorities. If Quitlong stabbed and killed the victim Masangkay, he
will keep away from the police authorities and will go in hiding. x x x
Because the trial court had the opportunity to observe the witnesses
demeanor and deportment on the stand as they rendered their testimonies, its
evaluation of the credibility of witnesses is entitled to the highest
respect. Therefore, unless the trial judge plainly overlooked certain facts of
substance and value which, if considered, might affect the result of the case,
his assessment of credibility must be respected. [20]

In the instant case, we have meticulously scoured the records and found no
reason to reverse the trial courts assessment of the credibility of the witnesses
and their testimonies insofar as Appellant Ortega is concerned. The narration
[21]

of Eyewitness Diosdado Quitlong appears to be spontaneous and consistent. It

is straightforward, detailed, vivid and logical. Thus, it clearly deserves full
credence.
On the other hand, in asserting alibi and denial, the defense bordered on
the unbelievable. Appellant Ortega claimed that after he was able to free
himself from Masangkays grip, he went home, treated his injuries and
slept. This is not the ordinary reaction of a person assaulted. If Ortegas
[22]

version of the assault was true, he should have immediately reported the matter
to the police authorities, if only out of gratitude to Quitlong who came to his
rescue. Likewise, it is difficult to believe that a man would just sleep after
someone was stabbed in his own backyard. Further, we deem it incredible that
Diosdado Quitlong would stab Masangkay ten (10) times successively,
completely ignoring Benjamin Ortega, Jr. who was grappling with
Masangkay. Also inconsistent with human experience is his narration that
Masangkay persisted in choking him instead of defending himself from the
alleged successive stabbing of Quitlong. The natural tendency of a person
[23]

under attack is to defend himself and not to persist in choking a defenseless

third person.
Murder or Homicide?

Although treachery, evident premeditation and abuse of superior strength

were alleged in the information, the trial court found the presence only of abuse
of superior strength.
We disagree with the trial courts finding. Abuse of superior strength requires
deliberate intent on the part of the accused to take advantage of such
superiority. It must be shown that the accused purposely used excessive force
that was manifestly out of proportion to the means available to the victims
defense. In this light, it is necessary to evaluate not only the physical condition
[24]

and weapon of the protagonists but also the various incidents of the event. [25]

In his testimony, Witness Dominador Quitlong mentioned nothing about

Appellant Ortegas availment of force excessively out of proportion to the means
of defense available to the victim to defend himself.Quitlong described the
assault made by Appellant Ortega as follows: [26]

ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have a drinking spree with
Andrew Masangkay and where you witnessed a stabbing incident?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in the
house of Mr. Benjamin Ortega, Sr., because the house of Benjamin Ortega Sr. and
the house of his son Benjamin Ortega, Jr. are near each other.

xxx xxx xxx

Q Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr., Manuel
Garcia, you (sic) in drinking in said place?
A The other companions in the drinking session were Ariel Caranto y Ducay, Roberto
San Andres and Romeo Ortega.
Q What about this victim, Andrew Masangkay, where was he at that time?
A Also the victim, Andrew Masangkay, he was also there.
Q You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived drunk
and joined the group?
A Yes, sir.
Q What happened next?
A While we were there together and we were drinking ... (interrupted by Atty. Altuna)
Q Who is that we?
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega,
Roberto San Andres, myself and Andrew Masangkay. Andrew Masangkay answer
to a call of nature and went to the back portion of the house, and Benjamin Ortega,
Jr. followed him where he was.
 Q What happened next?
A And afterwards we heard a shout and the shout said Huwag, tulungan nyo ako.
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature and
after you heard huwag, tulungan nyo ako coming from the mouth of the late Andrew
Masangkay, what happened next?
A Ariel Caranto and I ran towards the back portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was
stabbing Andrew Masangkay.
Q Will you please demonstrate to the Honorable Court how the stabbing was done telling
us the particular position of the late Andrew Masangkay and how Benjamin Ortega,
Jr proceeded with the stabbing against the late victim, Andrew Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega,
Jr. was nakakabayo and with his right hand with closed fist holding the weapon, he
was thrusting this weapon on the body of the victim, he was making downward and
upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?
A I cannot count the number of times.

It should be noted that Victim Masangkay was a six-footer, whereas

Appellant Ortega, Jr. was only five feet and five inches tall. There was no
[27]

testimony as to how the attack was initiated. The accused and the victim were
already grappling when Quitlong arrived. Nothing in the foregoing testimony
and circumstances can be interpreted as abuse of superior strength. Hence,
Ortega is liable only for homicide, not murder.

Second Issue: Liability of Appellant Manuel Garcia

Appellants argue that the finding of conspiracy by the trial court is based on
mere assumption and conjecture x x x. Allegedly, the medico-legal finding that
[28]

the large airway was filled with muddy particles indicating that the victim was
alive when the victim inhaled the muddy particles did not necessarily mean that
such muddy particles entered the body of the victim while he was still
alive. The Sinumpaang Salaysayof Quitlong stated, Nilubayan lang nang
saksak nang mapatay na si Andrew ni Benjamin Ortega, Jr. Thus, the
prosecution evidence shows Masangkay was already dead when he was lifted
and dumped into the well. Hence, Garcia could be held liable only as an
accessory. [29]

We do not agree with the above contention. Article 4, par. 1, of the Revised
Penal Code states that criminal liability shall be incurred by any person
committing a felony (delito) although the wrongful act done be different from
that which he intended. The essential requisites for the application of this
provision are that (a) the intended act is felonious; (b) the resulting act is
likewise a felony; and (c) the unintended albeit graver wrong was primarily
caused by the actors wrongful acts. In assisting Appellant Ortega, Jr. carry the
body of Masangkay to the well, Appellant Garcia was committing a felony. The
offense was that of concealing the body of the crime to prevent its
discovery, i.e. that of being an accessory in the crime of homicide. Although [30]

Appellant Garcia may have been unaware that the victim was still alive when
he assisted Ortega in throwing the body into the well, he is still liable for the
direct and natural consequence of his felonious act, even if the resulting offense
is worse than that intended.
True, Appellant Garcia merely assisted in concealing the body of the
victim. But the autopsy conducted by the NBI medico-legal officer showed that
the victim at that time was still alive, and that he died subsequently of
drowning. That drowning was the immediate cause of death was medically
[31]

demonstrated by the muddy particles found in the victims airway, lungs and
stomach. This is evident from the expert testimony given by the medico-legal
[32]

officer, quoted below: [33]

ATTY. ALTUNA:
Q Will you please explain this in simple language the last portion of Exhibit N, beginning
with tracheo-bronchial tree, that is sentence immediately after paragraph 10, 2.5
cms. Will you please explain this?
A The trancheo-bronchial tree is filled with muddy particles.
Q I ask you a question on this. Could the victim have possibly get this particular material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy particles could be inhaled.
Q So, in short, you are telling or saying to us that if there is no inhaling or the taking or
receiving of muddy particles at that time, the person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial hemorrhages at the anterior surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased amount of blood going to the
heart.
Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial hemorrhages.
Q What could have caused this injury of the lungs?
A This is due to asphyxia or the loss of blood.
Q Are you saying that the lungs have been filled with water or muddy particles?
A Yes, sir.
Q And, precisely, you are now testifying that due to stab wounds or asphyxia, the lungs
have been damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral organs, pale. What is this?
A The paleness of the brain and other visceral organs is due to loss of blood.
Q And, of course, loss of blood could be attributed to the stab wound which is number
13?
A Yes, sir.
Q And the last one, under the particular point hemothorax?
A It indicates at the right side. There are around 1,400 cc of blood that accumulate at the
thoraxic cavity and this was admixed with granular materials?
Q And what cause the admixing with granular materials on said particular portion of the
body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct?
A Its due to stab wounds those muddy particles which set-in thru the stab wounds.
Q So, because of the opening of the stab wounds, the muddy particles now came in, in
that particular portion of the body and caused admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly, the last two portions, will you please explain
the same?
A The hemoperitoneum there are 900 cc of blood that accumulated inside the abdomen.
 Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles. Please explain the same?
A The victim could have taken these when he was submerged in water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir. (Underscoring supplied)

A Filipino authority on forensic medicine opines that any of the following

medical findings may show that drowning is the cause of death: [34]

1. The presence of materials or foreign bodies in the hands of the

victim. The clenching of the hands is a manifestation
of cadaveric spasm in the effort of the victim to save himself from
drowning.
2. Increase in volume (emphysema aquosum) and edema of the lungs
(edema aquosum).
3. Presence of water and fluid in the stomach contents corresponding to
the medium where the body was recovered.
4. Presence of froth, foam or foreign bodies in the air passage found in the
medium where the victim was found.
5. Presence of water in the middle ear.
The third and fourth findings were present in the case of Victim Masangkay. It
was proven that his airpassage, or specifically his tracheo-bronchial tree, was
filled with muddy particles which were residues at the bottom of the well. Even
his stomach was half-filled with such muddy particles. The unrebutted
testimony of the medico-legal officer that all these muddy particles were
ingested when the victim was still alive proved that the victim died of drowning
inside the well.
The drowning was the direct, natural and logical consequence of the felony
that Appellant Garcia had intended to commit; it exemplifies praeter
intentionem covered by Article 4, par. 1, of the Revised Penal Code. Under this
paragraph, a person may be convicted of homicide although he had no original
intent to kill.
[35]

In spite of the evidence showing that Appellant Garcia could be held liable
as principal in the crime of homicide, there are, however, two legal obstacles
barring his conviction, even as an accessory as prayed for by appellants
counsel himself.
First. The Information accused Appellant Garcia (and Appellant Ortega) of
attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon on the
different parts of the body one ANDRE MAR MASANGKAY y ABLOLA The
prosecutions evidence itself shows that Garcia had nothing to do with the
stabbing which was solely perpetrated by Appellant Ortega. His responsibility
relates only to the attempted concealment of the crime and the resulting
drowning of Victim Masangkay. The hornbook doctrine in our jurisdiction is that
an accused cannot be convicted of an offense, unless it is clearly charged in
the complaint or information. Constitutionally, he has a right to be informed of
the nature and cause of the accusation against him. To convict him of an
offense other than that charged in the complaint or information would be a
violation of this constitutional right. Section 14, par. 2, of the 1987 Constitution
[36]

explicitly guarantees the following:

(2) In all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against him,
to have a speedy, impartial, and public trial, to meet the witnesses face to face,
and to have compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been
duly notified and his failure to appear is unjustifiable. (Underscoring supplied)
In People vs. Pailano, this Court ruled that there can be no conviction for
[37]

rape on a woman deprived of reason or otherwise unconscious where the

information charged the accused of sexual assault by using force or
intimidation, thus:
The criminal complaint in this case alleged the commission of the crime
through the first method although the prosecution sought to establish at the
trial that the complainant was a mental retardate. Its purpose in doing so is not
clear. But whatever it was, it has not succeeded.
If the prosecution was seeking to convict the accused-appellant on the ground
that he violated Anita while she was deprived of reason or unconscious, such
conviction could not have been possible under the criminal complaint as
worded. This described the offense as having been committed by Antonio
Pailano, being then provided with a scythe, by means of violence and
intimidation, (who) did, then and there, wilfully, unlawfully and feloniously
have carnal knowledge of the complainant, Anita Ibaez, 15 years of age,
against her will. No mention was made of the second circumstance.
 Conviction of the accused-appellant on the finding that he had raped Anita
while she was unconscious or otherwise deprived of reason -- and not through
force and intimidation, which was the method alleged -- would have violated
his right to be informed of the nature and cause of the accusation against
him.[Article IV, Sec. 19, Constitution of 1973; now Article III, Sec.
14(2)] This right is safeguarded by the Constitution to every accused so he can
prepare an adequate defense against the charge against him. Convicting him of
a ground not alleged while he is concentrating his defense against the ground
alleged would plainly be unfair and underhanded. This right was, of course,
available to the herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with
rape could not be found guilty of qualified seduction, which had not been
alleged in the criminal complaint against him. In the case of People vs.
Montes, [fn: 122 SCRA 409] the Court did not permit the conviction for
homicide of a person held responsible for the suicide of the woman he was
supposed to have raped, as the crime he was accused of -- and acquitted -- was
not homicide but rape. More to the point is Tubb v. People of the Philippines,
[fn: 101 Phil. 114] where the accused was charged with the misappropriation
of funds held by him in trust with the obligation to return the same under
Article 315, paragraph 1(b) of the Revised Penal Code, but was convicted of
swindling by means of false pretenses, under paragraph 2(b) of the said
Article, which was not alleged in the information. The Court said such
conviction would violate the Bill of Rights.
By parity of reasoning, Appellant Garcia cannot be convicted of homicide
through drowning in an information that charges murder by means of stabbing.
Second. Although the prosecution was able to prove that Appellant Garcia
assisted in concealing x x x the body of the crime, x x x in order to prevent its
discovery, he can neither be convicted as an accessory after the fact defined
under Article 19, par. 2, of the Revised Penal Code. The records show that
Appellant Garcia is a brother-in-law of Appellant Ortega, the latters sister,
[38]

Maritess, being his wife. Such relationship exempts Appellant Garcia from
[39]

criminal liability as provided by Article 20 of the Revised Penal Code:

ART. 20. Accessories who are exempt from criminal liability. -- The penalties
prescribed for accessories shall not be imposed upon those who are such with
respect to their spouses, ascendants, descendants, legitimate, natural, and
adopted brothers and sisters, or relatives by affinity within the same degrees
with the single exception of accessories falling within the provisions of
paragraph 1 of the next preceding article.
On the other hand, the next preceding article provides:
 ART. 19. Accessories. Accessories are those who, having knowledge of the
commission of the crime, and without having participated therein, either as
principals or accomplices, take part subsequent to its commission in any of the
following manners:
1. By profiting themselves or assisting the offender to profit by the
effects of the crime.
2. By concealing or destroying the body of the crime, or the effects
or instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the
principal of the crime, provided the accessory acts with abuse of
his public functions or whenever the author of the crime is
guilty of treason, parricide, murder, or an attempt to take the life
of the Chief Executive, or is known to be habitually guilty of
some other crime.
Appellant Garcia, being a covered relative by affinity of the principal
accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted exempting
provision of the Revised Penal Code. This Court is thus mandated by law to
acquit him.

Penalty and Damages

The award of actual damages should be reduced to P31,790.00

from P35,000.00. The former amount was proven both by documentary
evidence and by the testimony of Melba Lozano, a sister of the victim. Of the [40]

expenses alleged to have been incurred, the Court can give credence only to
those that are supported by receipts and appear to have been genuinely
incurred in connection with the death of the victim. However, in line with
[41]

current jurisprudence, Appellant Ortega shall also indemnify the heirs of the
[42]

deceased in the sum of P50,000.00. Indemnity requires no proof other than the
fact of death and appellants responsibility therefor. [43]

The penalty for homicide is reclusion temporal under Article 249 of the
Revised Penal Code, which is imposable in its medium period, absent any
aggravating or mitigating circumstance, as in the case of Appellant
Ortega. Because he is entitled to the benefits of the Indeterminate Sentence
Law, the minimum term shall be one degree lower, that is, prision mayor.
WHEREFORE, premises considered, the joint appeal
is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of
homicide and sentenced to ten (10) years of prision mayor medium, as
minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal medium, as maximum. Appellant Ortega, Jr. is also ORDERED to pay
the heirs of the victim P50,000.00 as indemnity and P31,790.00 as actual
damages. Appellant Manuel Garcia is ACQUITTED. His immediate release
from confinement is ORDERED unless he is detained for some other valid
cause.
SO ORDERED.
Narvasa C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 93028 July 29, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARTIN SIMON y SUNGA, respondent.

The Solicitor General for plaintiff-appellee.

Ricardo M.Sampang for accused-appellant.

REGALADO, J.:

Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a
violation of Section 4, Article II of Republic Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment
alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold
four tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of the
sum of P40.00, which tea bags, when subjected to laboratory examination, were found positive for
marijuana.1

Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his
escape from Camp Olivas, San Fernando, Pampanga where he was temporarily detained,2 he
pleaded not guilty. He voluntarily waived his right to a pre-trial conference,3 after which trial on the
merits ensued and was duly concluded.

The evidence on record shows that a confidential informant, later identified as a NARCOM operative,
informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a
certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding
Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of
Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and
Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante,
the team, together with their informant, proceeded to Sto. Cristo after they had coordinated with the
police authorities and barangay officers thereof. When they reached the place, the confidential
informer pointed out appellant to Lopez who consequently approached appellant and asked him if he
had marijuana. Appellant answered in the affirmative and Lopez offered to buy two tea bags.
Appellant then left and, upon returning shortly thereafter, handed to Lopez two marijuana tea bags
and Lopez gave him the marked money amounting to P40.00 as payment. Lopez then scratched his
head as a
pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and
the team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested
appellant. The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp
Olivas on board a jeep and he was placed under custodial investigation, with Sgt. Pejoro as the
investigator.4

Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between
Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and
took the marked money from appellant.5

Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was
stationed farthest from the rest of the other members, that is, around two hundred meters away from
his companions. He did not actually see the sale that transpired between Lopez and appellant but he
saw his teammates accosting appellant after the latter's arrest. He was likewise the one who
conducted the custodial investigation of appellant wherein the latter was apprised of his rights to
remain silent, to information and to counsel. Appellant, however, orally waived his right to counsel.6

Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which
appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his
possession. Pejoro likewise informed the court below that, originally, what he placed on the receipt
was that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez and
Villaruz corrected his entry by telling him to put "two", instead of "one" and "40", instead of "20". He
agreed to the correction since they were the ones who were personally and directly involved in the
purchase of the marijuana and the arrest of appellant.7

Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day
after the latter's apprehension, and the results were practically normal except for his relatively high
blood pressure. The doctor also did not find any trace of physical injury on the person of appellant.
The next day, he again examined appellant due to the latter's complaint of
gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a
history of peptic ulcer, which causes him to experience abdominal pain and consequently vomit
blood. In the afternoon, appellant came back with the same complaint but, except for the gastro-
intestinal pain, his physical condition remained normal.8

As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day
in question, at around 4:30 p.m., he was watching television with the members of his family in their
house when three persons, whom he had never met before suddenly arrived. Relying on the
assurance that they would just inquire about something from him at their detachment, appellant
boarded a jeep with them. He was told that they were going to Camp Olivas, but he later noticed that
they were taking a different route. While on board, he was told that he was a pusher so he attempted
to alight from the jeep but he was handcuffed instead. When they finally reached the camp, he was
ordered to sign some papers and, when he refused, he was boxed in the stomach eight or nine
times by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the documents
presented to him. He denied knowledge of the P20.00 or the dried marijuana leaves, and insisted
that the twenty-peso bill came from the pocket of Pejoro. Moreover, the reason why he vomited
blood was because of the blows he suffered at the hands of Pejoro. He admitted having escaped
from the NARCOM office but claimed that he did so since he could no longer endure the
maltreatment to which he was being subjected. After escaping, he proceeded to the house of his
uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m.
There, he consulted a quack doctor and, later, he was accompanied by his sister to the Romana
Pangan District Hospital at Floridablanca, Pampanga where he was confined for three days.9

Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at
Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise
confirmed that appellant had been suffering from peptic ulcer even before the latter's arrest.10 Also,
Dr. Evelyn Gomez-Aguas, a resident physician of Romana Pangan District Hospital, declared that
she treated appellant for three days due to abdominal pain, but her examination revealed that the
cause for this ailment was appellant's peptic ulcer. She did not see any sign of slight or serious
external injury, abrasion or contusion on his body.11

On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment
convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and
sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos and
to pay the costs. The four tea bags of marijuana dried leaves were likewise ordered confiscated in
favor of the Government.12

Appellant now prays the Court to reverse the aforementioned judgment of the lower court,
contending in his assignment of errors that the latter erred in (1) not upholding his defense of "frame-
up", (2) not declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in evidence,
and (3) convicting him of a violation of the Dangerous Drugs Act.13

At the outset, it should be noted that while the People's real theory and evidence is to the effect the
appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags
were merely confiscated subsequently from his possession,14 the latter not being in any way
connected with the sale, the information alleges that he sold and delivered four tea bags of
marijuana dried leaves.15 In view thereof, the issue presented for resolution in this appeal is merely
the act of selling the two tea bags allegedly committed by appellant, and does not include the
disparate and distinct issue of illegal possession of the other two tea bags which separate offense is
not charged herein.16

To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably
established.17 To sell means to give, whether for money or any other material consideration.18 It must,
therefore, be established beyond doubt that appellant actually sold and delivered two tea bags of
marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two twenty-
peso bills.

After an assiduous review and calibration of the evidence adduced by both parties, we are morally
certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs.
The prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988,
did sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as
to how the sale took place and his testimony was amply corroborated by his teammates. As between
the straightforward, positive and corroborated testimony of Lopez and the bare denials and negative
testimony of appellant, the former undeniably deserves greater weight and is more entitled to
credence.

We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers
is susceptible to mistake, harassment, extortion and abuse.19 Nonetheless, such causes for judicial
apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not
effected in a haphazard way, for a surveillance was conducted by the team before the
buy-bust operation was effected.20 No ill motive was or could be attributed to them, aside from the
fact that they are presumed to have regularly performed their official duty.21 Such lack of dubious
motive coupled with the presumption of regularity in the performance of official duty, as well as the
findings of the trial court on the credibility of witnesses, should prevail over the self-serving and
uncorroborated claim of appellant of having been framed,22 erected as it is upon the mere shifting
sands of an alibi. To top it all, appellant was caught
red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert
the charge, he does not appear to have plausibly done so.

When the drug seized was submitted to the Crime Laboratory Service of the then Philippine
Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn
Salangad, a forensic chemist therein,23confirmed in her Technical Report No. NB-448-88 that the
contents of the four tea bags confiscated from appellant were positive for and had a total weight of
3.8 grams of marijuana.24 Thus, the corpus delicti of the crime had been fully proved with certainty
and conclusiveness.25

Appellant would want to make capital of the alleged inconsistencies and improbabilities in the
testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really
confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had
nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of Property
Seized/Confiscated," he signed it as the one who seized the same.26

Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really
matter since such is not an element of the offense with which appellant is charged. What is
unmistakably clear is that the marijuana was confiscated from the possession of appellant. Even,
assuming arguendo that the prosecution committed an error on who actually seized the marijuana
from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither
impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses'
honesty.27 Besides, there was clearly a mere imprecision of language since Pejoro obviously meant
that he did not take part in the physical taking of the drug from the person of appellant, but he
participated in the legalseizure or confiscation thereof as the investigator of their unit.

Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were
not powdered for finger-printing purposes contrary to the normal procedure in buy-bust
operations.28 This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony,
as follows:

Q: Is it the standard operating procedure of your unit that in

conducting such operation you do not anymore provide a powder
(sic) on the object so as to determine the thumbmark or identity of the
persons taking hold of the object?

A: We were not able to put powder on these denominations because

we are lacking that kind of material in our office since that item can be
purchased only in Manila and only few are producing that, sir.

xxx xxx xxx

Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory,
CIS, as well as the office of NICA?

A: Our office is only adjacent to those offices but we cannot make a

request for that powder because they, themselves, are using that in
their own work, sir.29

The foregoing explanation aside, we agree that the failure to mark the money bills used for
entrapment purposes can under no mode of rationalization be fatal to the case of the prosecution
because the Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any of such transactions."30 The dusting of said bills with
phosphorescent powder is only an evidentiary technique for identification purposes, which
identification can be supplied by other species of evidence.

Again, appellant contends that there was neither a relative of his nor any barangay official or civilian
to witness the seizure. He decries the lack of pictures taken before, during and after his arrest.
Moreover, he was not reported to or booked in the custody of any barangay official or police
authorities.31 These are absurd disputations. No law or jurisprudence requires that an arrest or
seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be
accompanied by the taking of pictures. On the contrary, the police enforcers having caught appellant
in flagrante delicto, they were not only authorized but were also under the obligation to effect a
warrantless arrest and seizure.

Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in
connection with his apprehension. Said Booking Sheet and Arrest Report32 states, inter alia, that
"suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the
confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks
was affixed appellant's signature. In the same manner, the receipt for the seized property,
hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of the
marked bills from him.33

However, we find and hereby declare the aforementioned exhibits inadmissible in evidence.
Appellant's conformance to these documents are declarations against interest and tacit admissions
of the crime charged. They were obtained in violation of his right as a person under custodial
investigation for the commission of an offense, there being nothing in the records to show that he
was assisted by counsel.34 Although appellant manifested during the custodial investigation that he
waived his right to counsel, the waiver was not made in writing and in the presence of
counsel,35 hence whatever incriminatory admission or confession may be extracted from him, either
verbally or in writing, is not allowable in evidence.36 Besides, the arrest report is self-serving and
hearsay and can easily be concocted to implicate a suspect.

Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated
from his predicament since his criminal participation in the illegal sale of marijuana has been
sufficiently proven. The commission of the offense of illegal sale of prohibited drugs requires merely
the consummation of the selling transaction37 which happens the moment the buyer receives the
drug from the seller.38 In the present case, and in light of the preceding discussion, this sale has been
ascertained beyond any peradventure of doubt.

Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger.39 We
take this opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a
small scale as in this case, belongs to that class of crimes that may be committed at any time and in
any place.40 It is not contrary to human experience for a drug pusher to sell to a total stranger,41 for
what matters is not an existing familiarity between the buyer and seller but their agreement and the
acts constituting the sale and delivery of the marijuana leaves.42 While there may be instances where
such sale could be improbable, taking into consideration the diverse circumstances of person, time
and place, as well as the incredibility of how the accused supposedly acted on that occasion, we can
safely say that those exceptional particulars are not present in this case.

Finally, appellant contends that he was subjected to physical and mental torture by the arresting
officers which caused him to escape from Camp Olivas the night he was placed under
custody.43 This he asserts to support his explanation as to how his signatures on the documents
earlier discussed were supposedly obtained by force and coercion.

The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must
not only proceed from the mouth of a credible witness but must be credible in itself such as the
common experience and observation of mankind can approve as probable under the
circumstances.44 The evidence on record is bereft of any support for appellant's allegation of
maltreatment. Two doctors, one for the prosecution45 and the other for the defense,46 testified on the
absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the person of
appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which he
had been suffering even before his arrest.47 His own brother even corroborated that fact, saying that
appellant has had a history of bleeding peptic ulcer.48

Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever
for not divulging the same to his brother who went to see him at the camp after his arrest and during
his detention there.49Significantly, he also did not even report the matter to the authorities nor file
appropriate charges against the alleged malefactors despite the opportunity to do so50 and with the
legal services of counsel being available to him. Such omissions funnel down to the conclusion that
appellant's story is a pure fabrication.

These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless
and premeditated for the NARCOM agents were determined to arrest him at all costs.51 Premeditated
or not, appellant's arrest was only the culmination, the final act needed for his isolation from society
and it was providential that it came about after he was caught in the very act of illicit trade of
prohibited drugs. Accordingly, this opinion could have concluded on a note of affirmance of the
judgment of the trial court. However, Republic Act No. 6425, as amended, was further amended by
Republic Act No. 7659 effective December 31, 1993,52 which supervenience necessarily affects the
original disposition of this case and entails additional questions of law which we shall now resolve.

II

The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are
to this effect:

Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended,
known as the Dangerous Drugs Act of 1972, are hereby amended to read as follows:

xxx xxx xxx

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation

of Prohibited Drugs. The penalty of reclusion perpetua to death
and a fine ranging from five hundred thousand pesos to ten million
pesos shall be imposed upon any person who, unless authorized by
law, shall sell, administer, deliver, give away to another, distribute,
dispatch in transit or transport any prohibited drug, or shall act as a
broker in any of such transactions.

xxx xxx xxx

Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the
Dangerous Drugs Act of 1972, is hereby amended to read as follows:
 Sec. 20. Application of Penalties, Confiscation and Forfeiture of the
Proceeds or Instrument of the Crime. The penalties for offenses
under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15
and 16 of Article III of this Act shall be applied if the dangerous drugs
involved is in any of the following quantities:

xxx xxx xxx

5. 750 grams or more of indian hemp or marijuana

xxx xxx xxx

Otherwise, if the quantity involved is less than the foregoing

quantities, the penalty shall range from prision
correccional to reclusion perpetua depending upon the quantity.

1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana
with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of
those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic Act
No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder,
pursuant to Article 22 of the Revised Penal Code.

Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in
substitution of the previous Articles 190 to 194 of the Revised Penal Code,53 it has long been settled
that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and
shall be given retrospective effect to crimes punished by special laws.54 The execution in said article
would not apply to those convicted of drug offenses since habitual delinquency refers to convictions
for the third time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa
or falsification.55

Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been
involved nor invoked in the present case, a corollary question would be whether this court, at the
present stage, can
sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant.
That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:

. . . . The plain precept contained in article 22 of the Penal Code, declaring the
retroactivity of penal laws in so far as they are favorable to persons accused of a
felony, would be useless and nugatory if the courts of justice were not under
obligation to fulfill such duty, irrespective of whether or not the accused has applied
for it, just as would also all provisions relating to the prescription of the crime and the
penalty.

If the judgment which could be affected and modified by the reduced penalties provided in Republic
Act No. 7659 has already become final and executory or the accused is serving sentence
thereunder, then practice, procedure and pragmatic considerations would warrant and necessitate
the matter being brought to the judicial authorities for relief under a writ of habeas corpus.56

2. Probably through oversight, an error on the matter of imposable penalties appears to have been
committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial
reconciliation and craftsmanship.
As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended,
imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to
P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away, distribute,
dispatch in transit or transport any prohibited drug. That penalty, according to the amendment to
Section 20 of the law, shall be applied if what is involved is 750 grams or more of indian hemp or
marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision
correccional to reclusion perpetua depending upon the quantity.

In other words, there is here an overlapping error in the provisions on the penalty of reclusion
perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the
marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana
involved is 750 grams or more. The same error has been committed with respect to the other
prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting provisions
in order to give effect to the whole law,57 we hereby hold that the penalty to be imposed where the
quantity of the drugs involved is less than the quantities stated in the first paragraph shall range
from prision correccional to reclusion temporal, and not reclusion perpetua. This is also concordant
with the fundamental rule in criminal law that all doubts should be construed in a manner favorable
to the accused.

3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by
the imposable range of penalties under the second paragraph of Section 20, as now modified, the
law provides that the penalty shall be taken from said range "depending upon the quantity" of the
drug involved in the case. The penalty in said second paragraph constitutes a complex one
composed of three distinct penalties, that is, prision correccional,prision mayor, and reclusion
temporal. In such a situation, the Code provides that each one shall form a period, with the lightest
of them being the minimum, the next as the medium, and the most severe as the maximum period.58

Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances
determine which period of such complex penalty
shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is
its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the
drug subject of the criminal transaction.59 Accordingly, by way of exception to Article 77 of the Code
and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid
component penalties shall be considered as a principal imposable penalty depending on the quantity
of the drug involved. Thereby, the modifying circumstances will not altogether be disregarded. Since
each component penalty of the total complex penalty will have to be imposed separately as
determined by the quantity of the drug involved, then the modifying circumstances can be used to fix
the proper period of that component penalty, as shall hereafter be explained.

It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid
disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the
drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and
double or treble the same, to be respectively the bases for allocating the penalty proportionately
among the three aforesaid periods according to the severity thereof. Thus, if the marijuana involved
is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499
grams, prision mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the
penalty is reclusion perpetua to death.60

Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty
of prision correccional is consequently indicated but, again, another preliminary and cognate issue
has first to be resolved.
4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it
consists of three periods as provided in the text of and illustrated in the table provided by Article 76
of the Code. The question is whether or not in determining the penalty to be imposed, which is here
to be taken from the penalty of prision correccional, the presence or absence of mitigating,
aggravating or other circumstances modifying criminal liability should be taken into account.

We are not unaware of cases in the past wherein it was held that, in imposing the penalty for
offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised
Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases,
however, reveals that the reason therefor was because the special laws involved provided their own
specific penalties for the offenses punished thereunder, and which penalties were not taken from or
with reference to those in the Revised Penal Code. Since the penalties then provided by the special
laws concerned did not provide for the minimum, medium or maximum periods, it would
consequently be impossible to consider the aforestated modifying circumstances whose main
function is to determine the period of the penalty in accordance with the rules in Article 64 of the
Code.

This is also the rationale for the holding in previous cases that the provisions of the Code on the
graduation of penalties by degrees could not be given supplementary application to special laws,
since the penalties in the latter were not components of or contemplated in the scale of penalties
provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special
laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical
impossibility of, or a prohibition in the special law against, such supplementary application.

The situation, however, is different where although the offense is defined in and ostensibly punished
under a special law, the penalty therefor is actually taken from the Revised Penal Code in its
technical nomenclature and, necessarily, with its duration, correlation and legal effects under the
system of penalties native to said Code. When, as in this case, the law involved speaks of prision
correccional, in its technical sense under the Code, it would consequently be both illogical and
absurd to posit otherwise. More on this later.

For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425,
as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period
thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or
aggravating circumstance.

5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed
for offenses under special laws would be necessary.

Originally, those special laws, just as was the conventional practice in the United States but
differently from the penalties provided in our Revised Penal Code and its Spanish origins, provided
for one specific penalty or a range of penalties with definitive durations, such as imprisonment for
one year or for one to five years but without division into periods or any technical statutory
cognomen. This is the special law contemplated in and referred to at the time laws like the
Indeterminate Sentence Law61 were passed during the American regime.

Subsequently, a different pattern emerged whereby a special law would direct that an offense
thereunder shall be punished under the Revised Penal Code and in the same manner provided
therein. Inceptively, for instance, Commonwealth Act No. 30362 penalizing non-payment of salaries
and wages with the periodicity prescribed therein, provided:
 Sec. 4. Failure of the employer to pay his employee or laborer as required by section
one of this Act, shall prima facie be considered a fraud committed by such employer
against his employee or laborer by means of false pretenses similar to those
mentioned in article three hundred and fifteen, paragraph four, sub-paragraph two (a)
of the Revised Penal Code and shall be punished in the same manner as therein
provided.63

Thereafter, special laws were enacted where the offenses defined therein were specifically punished
by the penalties as technically named and understood in the Revised Penal Code. These are
exemplified by Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged from arresto
mayor to
death;64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto
mayor to prision mayor; and Presidential Decree
No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor
may involve prision mayor, reclusion temporal, reclusion perpetua or death.

Another variant worth mentioning is Republic Act No. 6539

(Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8
months and not more than 17 years and 4 months, when committed without violence or intimidation
of persons or force upon things; not less than 17 years and 4 months and not more than 30 years,
when committed with violence against or intimidation of any person, or force upon things; and life
imprisonment to death, when the owner, driver or occupant of the carnapped vehicle is killed.

With respect to the first example, where the penalties under the special law are different from and
are without reference or relation to those under the Revised Penal Code, there can be no suppletory
effect of the rules for the application of penalties under said Code or by other relevant statutory
provisions based on or applicable only to said rules for felonies under the Code. In this type of
special law, the legislative intendment is clear.

The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is
true that the penalty of 14 years and
8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period
of reclusion temporal,such technical term under the Revised Penal Code is not given to that penalty
for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances
stated in the law do not correspond to those in the Code. The rules on penalties in the Code,
therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same
formulation.

On the other hand, the rules for the application of penalties and the correlative effects thereof under
the Revised Penal Code, as well as other statutory enactments founded upon and applicable to such
provisions of the Code, have suppletory effect to the penalties under the former Republic Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are
special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised
Penal code lucidly reveals the statutory intent to give the related provisions on penalties for felonies
under the Code the corresponding application to said special laws, in the absence of any express or
implicit proscription in these special laws. To hold otherwise would be to sanction an indefensible
judicial truncation of an integrated system of penalties under the Code and its allied legislation,
which could never have been the intendment of Congress.

In People vs. Macatanda,65 a prosecution under a special law (Presidential Decree No. 533,
otherwise known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that
Article 64, paragraph 5, of the Revised Penal Code should not apply to said special law. We said
therein that

We do not agree with the Solicitor General that P.D. 533 is a special law entirely
distinct from and unrelated to the Revised Penal Code. From the nature of the
penalty imposed which is in terms of the classification and duration of penalties as
prescribed in the Revised Penal Code, which is not for penalties as are ordinarily
imposed in special laws, the intent seems clear that P.D. 533 shall be deemed as an
amendment of the Revised Penal Code, with respect to the offense of theft of large
cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such as
Article 104 of the Revised Penal Code . . . . Article 64 of the same Code should,
likewise, be applicable, . . . . (Emphasis supplied.)

More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal
Code to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more
recent pronouncement:

. . . Pointing out that as provided in Article 10 the provisions of the Revised Penal
Code shall be "supplementary" to special laws, this Court held that where the special
law expressly grants to the court discretion in applying the penalty prescribed for the
offense, there is no room for the application of the provisions of the Code . . . .

The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no
explicit grant of discretion to the Court in the application of the penalty prescribed by
the law. In such case, the court must be guided by the rules prescribed by the
Revised Penal Code concerning the application of penalties which distill the "deep
legal thought and centuries of experience in the administration of criminal laws."
(Emphasis ours.)66

Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by
Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties
defined in and constituting integral parts of the three scales of penalties in the Code, 67 with much
more reason should the provisions of said Code on the appreciation and effects of all attendant
modifying circumstances apply in fixing the penalty. Likewise, the different kinds or classifications of
penalties and the rules for graduating
such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if
they would result in absurdities as will now be explained.

While not squarely in issue in this case, but because this aspect is involved in the discussion on the
role of modifying circumstances, we have perforce to lay down the caveat that mitigating
circumstances should be considered and applied only if they affect the periods and the degrees of
the penalties within rational limits.

Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of
the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties
in Article 71, are the stage of execution of the crime and the nature of the participation of the
accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating
circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also,
the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce
the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68
should not apply in toto in the determination of the proper penalty under the aforestated second
paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could not have
been contemplated by the legislature.

Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not
specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy
therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be
imposed in their full extent, the penalty next lower in degree shall likewise consist of as many
penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since
the complex penalty in this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto
menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two
degrees, which must each likewise consist of three penalties, since only the penalties of fine and
public censure remain in the scale.

The Court rules, therefore, that while modifying circumstances may be appreciated to determine
the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case
should such graduation of penalties reduce the imposable penalty beyond or lower than prision
correccional. It is for this reason that the three component penalties in the second paragraph of
Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty
should in any event be prision correccional in order not to depreciate the seriousness of drug
offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be
adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution
cannot be forged from an imperfect law, which impasse should now be the concern of and is
accordingly addressed to Congress.

6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now
before us. Apparently it does, since drug offenses are not included in nor has appellant committed
any act which would put him within the exceptions to said law and the penalty to be imposed does
not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved
will exceed one year of imprisonment.68 The more important aspect, however, is how the
indeterminate sentence shall be ascertained.

It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under
the Revised Penal Code, states that "if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed
the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed
by the same." We hold that this quoted portion of the section indubitably refers to an offense under a
special law wherein the penalty imposed was not taken from and is without reference to the Revised
Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is
punished" under that law.

There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses
under special laws was necessary because of the nature of the former type of penalties under said
laws which were not included or contemplated in the scale of penalties in Article 71 of the Code,
hence there could be no minimum "within the range of the penalty next lower to that prescribed by
the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties
in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last
examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but
an application and is justified under the rule of contemporanea expositio.69
We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly
adopted the penalties under the Revised Penal Code in their technical terms, hence with their
technical signification and effects. In fact, for purposes of determining the maximum of said
sentence, we
have applied the provisions of the amended Section 20 of said law to arrive at prision
correccional and Article 64 of the Code to impose the same in the medium period. Such offense,
although provided for in a special law, is now in effect punished by and under the Revised Penal
Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section
1 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposedunder the rules of said Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.)

A divergent pedantic application would not only be out of context but also an admission of the
hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone
only skin-deep in its construction of Act. No. 4103 by a mere literal appreciation of its provisions.
Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted
of offenses punished with death penalty or life imprisonment," we have held that what is considered
is the penalty actually imposed and not the penalty imposable under the law,70and that reclusion
perpetua is likewise embraced therein although what the law states is "life imprisonment".

What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of
the principles of literal interpretation, which have been rationalized by comparative decisions of this
Court; of historical interpretation, as explicated by the antecedents of the law and related
contemporaneous legislation; and of structural interpretation, considering the interrelation of the
penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it
follows that the minimum of the indeterminate sentence in this case shall be the penalty next
lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in
Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of
interpretation.71

The indeterminate Sentence Law is a legal and social measure of compassion, and should be
liberally interpreted in favor of the accused.72 The "minimum" sentence is merely a period at which,
and not before, as a matter of grace and not of right, the prisoner may merely be allowed to serve
the balance of his sentence outside of his confinement.73 It does not constitute the totality of the
penalty since thereafter he still has to continue serving the rest of his sentence under set conditions.
That minimum is only the period when the convict's eligibility for parole may be considered. In fact,
his release on parole may readily be denied if he is found unworthy thereof, or his reincarceration
may be ordered on legal grounds, even if he has served the minimum sentence.

It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the
benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision
correccional which is the maximum range we have fixed through the application of Articles 61 and 71
of the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6
months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference,
which could thereby even involve only one day, is hardly worth the creation of an overrated tempest
in the judicial teapot.

ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court
a quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION
that he should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months
of arresto mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza, JJ.,
concur.

Bellosillo, J., is on leave.

 THIRD DIVISION

[G.R. No. 140347. August 9, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO OLITA y

GALO, accused-appellant.

DECISION
MELO, J.:

In an Information dated June 17, 1997, Rolando G. Olita was charged with the crime of
Robbery with Homicide, thusly:

That on or about the 7th day of June, 1997, in Quezon City, Philippines, the said
accused, conspiring, confederating with three (3) other persons whose true names,
identities and whereabouts have not as yet been ascertained and mutually helping one
another, armed with firearms with intent to gain and by means of force, violence and
intimidation against persons, to wit: while said complainant Isagani Tongco and his
security escort, Romeo A. Pacle, were waiting for a ride infront of Placido Del Mundo
Elementary School located at Quirino Highway, Bgy. Talipapa, Quezon City, accused
suddenly appeared and did then and there wilfully, unlawfully and feloniously take,
steal and carry away cash money in the amount of P53,927.88, Philippine Currency,
representing Meralco collections of Isagani Tongco against his will, and one .38 cal.
Revolver with Serial Number 29945 worth P9,000.00, Philippine Currency, owned by
the security agency where Romeo R. Pacle was employed, to the damage and
prejudice of the said offended party in the amount aforementioned.

That on the occasion of the said offense of robbery for the purpose of enabling the
said accused to take, steal and carry away the aforesaid cash money and firearm and in
pursuant to their conspiracy, the said accused with intent to kill and taking advantage
of their superior strength, did then and there treacherously attack, assault and employ
personal violence upon security escort, Romeo R. Pacle, by then and there shooting
the latter several times with a gun thereby inflicting upon said Romeo R. Pacle mortal
wounds which were the direct and immediate cause of his untimely death, to the
damage and prejudice of the heirs of said victim.

CONTRARY TO LAW.

(p. 4, Rollo.)
 Upon arraignment, accused-appellant entered a plea of not guilty. Trial, thereafter, ensued.
The evidence for the prosecution was summarized by the trial court as follows:

Isagani Tongco, 27 years sold, Meralco collector, and residing at 39 Libis, Pasong
Tamo, Makati City, testified that he has been a collector of Meralco since November,
1995. On June 7, 1997, he was assigned at Talipapa, Quirino Highway, Quezon
City. On that date, at about 11:30 in the morning, he was with civilian escort Romeo
Pacle waiting for a ride after coming from Villa Sabina Subdivision where he
collected about P57,000.00. While waiting for a ride at the Quirino Highway, after
crossing the highway from the subdivision, a bus passed in front of the gate of the
subdivision. After the bus left the area, two motorcycles with two passengers each
came out from the subdivision. The motorcycles proceeded to their direction from
across the street. They were then in front of the Placido del Mundo Elementary
school. His escort warned him of the approaching motorcycles, but he could not
run. He hid behind a plant box face down. The motorcycle riders fired shots at his
escort. His escort fired back. He heard many gun shots. One of the motorcycle riders
went down and took his belt bag containing his collection. When he looked at his
escort after his bag was taken, he saw him lying on the ground. The robber who took
his belt bag approached him while he was crouching behind a plant box and
demanded that he surrender his belt bag. Fearing for his life, the robber being armed,
he gave his belt bag containing his collection. He pointed to accused Olita during the
trial as the person who took his belt bag. While the robbers were moving towards
Mindanao Avenue, they passed by his escort. His escort fired at them. One of the
robbers fell from the motorcycle. The driver went back towards his direction, but he
was able to run away. He went to Solville Subdivision where he made a phone call to
his office and reported the incident. He removed his uniform and returned to the place
of the incident. He saw people boarding his escort to a tricycle. He was told that Olita
was taken by his companions. His escort Romeo Pacle was taken to a hospital where
he was declared dead on arrival. Accused Olita was taken to the East Avenue Medical
Center where he identified said accused as one of the robbers.

(pp. 1-2, Decision; pp. 39-40, Rollo.)

Accused-appellant denied responsibility and offered his own recollection of the

incident. Accused-appellant admitted having been at the scene of the crime but not as one of the
robbers. He remembered coming from Villa Sabina Subdivision trying to look for work. While
waiting for a ride home he heard a commotion and gunshots although he was not aware what was
going on at that time. He just realized that he was hit by a stray bullet at the left side of his
hip. Thereafter, he was brought to the hospital, then to the police station, but he knew nothing of
any reason why he was brought there. Later, he was informed that a case for robbery with homicide
was filed against him.
 On September 17, 1999, the trial court promulgated its judgment of conviction and
accordingly disposed:

WHEREFORE, premises considered judgment is hereby rendered finding the accused

Rolando Olita y Calo guilty beyond reasonable doubt of the crime of robbery with
homicide and hereby sentences him to suffer the penalty of reclusion perpetua and to
indemnify the complainant Isagani Tongco the amount of P53,927.88 as actual
damages, plus legal interest from June 7, 1997 and moral damages in the amount of
P20,000.00, plus costs.

Accused Rolando Olita is likewise ordered to indemnify the heirs of Romeo Pacle the
amount of P50,000.00 as civil indemnity and P30,000.00 as moral damages, plus
costs.

SO ORDERED.

(pp. 18-19, Rollo.)

Aggrieved, accused-appellant comes to this Court and pleads for acquittal. He posits that the
trial court convicted him solely on the basis of the identification made by prosecution witness
Isagani Tongco. On the contrary, accused-appellant asserts, there is no positive identification of
him in view of the fact that Tongco testified he was able to look at the robber for only a second or
two. Further, Tongco admitted that he had difficulty looking at accused-appellant because he was
approached from behind when the belt bag containing his collections was taken from him.
The core issue raised by accused-appellant in his appeal is surely factual and involves nothing
more than the credibility of prosecution witness Isagani Tongco. It is settled doctrine, however,
that with respect to the issue of credibility of a witness, the Court has always accorded the highest
degree of respect to the findings of the trial court (People vs. Unarce, 270 SCRA 756 [1997]), and
absent strong reasons to the contrary, are not disturbed on appeal.Accused-appellant failed to show
sufficient justification to warrant a reversal.
The main argument of accused-appellant hinges on his alleged doubtful identification by
Tongco as one of the felons. Accused-appellant claims that he has not been positively identified
considering that the testimony of Tongco contains so many inconsistencies rendering the
identification uncertain and open to doubt. He claims that Tongco during the police investigation
made reference to the shirt the assailant was wearing. But no such description was ever presented
when Tongco gave his testimony in court. Accused-appellant, thus, believes that his conviction
beyond reasonable doubt is unjustified, taking into account the unreliability of the evidence
proffered by the prosecution.
Accused-appellants bid for exoneration is for naught.
The credibility of a witness is not impaired where there is consistency in relating the principal
occurrence and positive identification of accused-appellant (People vs. Monfero, 308 SCRA 396
[1999]). Inconsistency on minor details is insignificant. The probative value of testimonial
evidence, particularly that which relates to the identity of the culprit, will not be diminished as
long as the mass of testimony jibes on material points (People s. Bihison, 308 SCRA 510 [1997]).
In his direct testimony, principal prosecution witness Tongco categorically identified accused-
appellant as one of the assailants, thusly:
xxx
Q Are you trying to say that the riders on the other motorcycle and the riders of that motorcycle who
took your bag were both armed with the gun?
A Yes, Sir.
Q And both of them were firing at your escort?
A Yes, Sir.
Q Do you remember the faces of these persons who robbed you and shoot at your companion Bacle?
A Yes, Sir.
Q If they are inside the Courtroom will you be able to identify them?
A Yes, Sir.
Q Kindly look around and identify them?
INTERPRETER
Witness pointing to the one who identified himself as Rolando Olita.
(January 14, 1998, p. 8, tsn)
xxx
Q Was your escort able to shoot them?
A My escort was able to shoot them, even when he was already lying on the ground when the
motorcycle passed by my escort, my escort was able to shoot them.
Q And after your escort was able to shoot them what happened next?
A One of them fell because he was hit when my escort shoot them and the driver of the motorcycle
went back but I was already able to run away.
Q Where did you proceed?
A Solville.
COURT
Do you know who was hit by your escort?
A Rolando Olita, who is present in Court.
(January 14, 1998, pp. 9-10, tsn))
On re-cross examination, Tongco showed nothing but consistency in his testimony. In a
fortright manner, he told the Court:
Q Mr. Witness, you are telling us that on a split seconds you can immediately recognize this face of
Olita?
 A Yes, Sir.
Q Did you see him shot Bacle?
A Yes, Sir.
Q Now you are telling us that when you croached back you saw Bacle shooting?
A Because while my face was down, I was facing Bacle.
Q And you are also telling us that when you croached back you saw Bacle shooting also, am I correct?
A Yes, Sir.
Q And you are also telling us that when you saw Bacle shooting, you also looked at the portion who
was shot?
Q Because I actually saw him when he went near me and he was the same person who fell from the
motorcycle.
Q But you did not personally see by your two eyes that the shot fired by Bacle was the one who hit
Olita, am I correct?
A Yes, Sir.
Q You only assumed because according to you he fell down, am I correct?
A Yes, Sir.
Q Now you are telling us that at that split seconds that you saw Olita even at the hospital you can
recognize him?
A Yes, Sir.
Q You have a good memory?
A Yes, Sir.
Q Can you tell us what day was June 7, 1997?
A Saturday.
(tsn, January 14, 1998, pp. 22-23.)
Variations in the declaration of witnesses in respect of collateral or incidental matters do not
impair the weight of his testimony, taken in its entirety, to the prominent facts, nor per se preclude
the establishment of the crime and the positive identification of the malefactor (People vs.
Mahinay, 304 SCRA 767 [1999]). Discrepancies should touch on significant facts which are
crucial to the guilt or innocence of an accused (People vs. Maglente, 306 SCRA 546 [1999]). The
alleged inconsistencies of Tongco raised by accused-appellant do not at all alter what had actually
been established by his testimony during the trial, that is, accused-appellant with his companions
shot to death victim Pacle, and accused-appellant, gun in hand, went near Tongco, and took the
money.
No error or ill-motive has been shown which may somehow cast doubt on the veracity of the
testimony of Isagani Tongco. His positive identification of accused-appellant as one of the
perpetrators of the crime is categorical, consistent, and straightforward. Tongco pointed to
accused-appellant as one of the robbers who shot the victim, as the one who pointed the gun at
him and took the money from him, and as the one who was shot by the victim, causing him to fall
from the motorcycle. This must prevail over accused-appellants bare denial.
In robbery with homicide, the prosecution needs to prove only the following elements: (a) the
taking of personal property with violence or intimidation against persons; (b) that the property
taken belongs to another; (c) the taking was done with animus lucrandi; and (d) on the occasion
of the robbery or by reason thereof homicide was committed (People vs. Sumallo, 307 SCRA 521
[1999]; People vs. Paraiso, 319 SCRA 422 [1999]).
In our view, the direct relation and intimate connection between robbery and the killing,
whether the latter be prior or subsequent to the former or whether both crimes be committed at the
same time (People vs. Nevales, 266 SCRA 69, 594 [1997]), has been successfully proved by the
prosecution. The evidence adduced in this case leads to the indubitable conclusion that accused-
appellant should be held answerable for the crime of robbery with homicide under Article 294,
No. 1, of the Revised Penal Code.
The Court, however, finds no basis from the record to justify the awards of moral damages in
favor of the heirs of Romeo Pacle, and prosecution witness Isagani Tongco. Moral damages cannot
be awarded in the absence of any factual basis (Brent Hospital, Inc. vs. NLRC, 292 SCRA 304
[1998]). There must be pleading and proof of moral suffering, mental anguish, fright, wounded
feelings and similar injury (People vs. Aguilar, 349 SCRA 292 [1998]). Thus, the amounts of
P20,00.00 and P30,000.00 as moral damages should be deleted. The award of actual damages of
P27,000.00 as reimbursement for the expenses incurred for the wake, burial, and funeral expenses
as supported by receipts, and the affirmance of the award of P53,927.88 representing the
MERALCO collection in favor of Tongco are in order.
WHEREFORE, the decision appealed from convicting accused-appellant Rolando Olita for
the crime of Robbery with Homicide and sentencing him to reclusion perpetua, and ordering him
to pay the heirs of Romeo A. Pacle as civil indemnity the amount of P50,000.00 is hereby
AFFIRMED. Accused-appellant is further ordered to pay the heirs of the victim P27,000.00, and
the amount of P53,927.88 in favor of Isagani Tongco with legal interest from the finality of this
decision, as actual damages. The awards of moral damages are deleted for lack of factual basis.
SO ORDERED.
Vitug, Panganiban, and Gonzaga-Reyes, JJ., concur.
Sandoval-Gutierrez, J., on leave.
 SECOND DIVISION

G.R. No. 138033 February 22, 2006

RENATO BALEROS, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

GARCIA, J.:

In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal
of the January 13, 1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as
reiterated in its March 31, 1999 resolution2 denying petitioners motion for reconsideration.

The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila,
Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO)
guilty of attempted rape.3

The accusatory portion of the information4 dated December 17, 1991 charging petitioner with
attempted rape reads as follow:

That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within
the jurisdiction of this Honorable Court, the above-named accused, by forcefully covering the face of
Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects, did then
and there willfully, unlawfully and feloniously commenced the commission of rape by lying on top of
her with the intention to have carnal knowledge with her but was unable to perform all the acts of
execution by reason of some cause or accident other than his own spontaneous desistance, said
acts being committed against her will and consent to her damage and prejudice.

Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not

Guilty."5 Thereafter, trial on the merits ensued.

To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private
complainant Martina Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel
Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some detail in the
decision of the CA, established the following facts:

Like most of the tenants of the Celestial Marie Building (hereafter "Building", ) along A.H. Lacson
Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania
(Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in
front of her bedroom door, her maid, Marvilou, slept on a folding bed.

Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of
cloth pressed on her face. She struggled but could not move. Somebody was pinning her down on
the bed, holding her tightly. She wanted to scream for help but the hands covering her mouth with
cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting
off her attacker by kicking him until at last her right hand got free. With this the opportunity
presented itself when she was able to grab hold of his sex organ which she then squeezed.

The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over
the intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid.,
p. 8). Who it was she did not, however, know. The only thing she had made out during their struggle
was the feel of her attackers clothes and weight. His upper garment was of cotton material while
that at the lower portion felt smooth and satin-like (Ibid, p. 17). He was wearing a t-shirt and
shorts Original Records, p. 355).

To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo
Acosta and Rommel Montes were staying, MALOU then proceeded to seek help. xxx.

It was then when MALOU saw her bed topsy-turvy. Her nightdress was stained with blue (TSN,
July 5, 1993, pp. 13-14). Aside from the window with grills which she had originally left opened,
another window inside her bedroom was now open. Her attacker had fled from her room going
through the left bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills
which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).

xxx xxx xxx

Further, MALOU testified that her relation with CHITO, who was her classmate , was friendly until
a week prior to the attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita"
(TSN, July 5, 1993, p. 22) and she rejected him. . (TSN, July 5, 1993, p. 22).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in
the early morning of December 13, 1991, wearing a white t-shirt with a marking on the front of
the T-shirt T M and a Greek letter (sic) and below the quoted letters the word 1946 UST
Medicine and Surgery (TSN, October 9, 1992, p. 9) and black shorts with the brand name Adidas
(TSN, October 16, 1992, p.7) and requested permission to go up to Room 306. This Unit was being
leased by Ansbert Co and at that time when CHITO was asking permission to enter, only Joseph
Bernard Africa was in the room.

He asked CHITO to produce the required written authorization and when CHITO could not, S/G
Ferolin initially refused [but later, relented] . S/G Ferolin made the following entry in the security
guards logbook :

"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from
our tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant
this coming summer break as he said so I let him sign it here

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph
Bernard Africa (Joseph), .

xxx xxx xxx

Joseph was already inside Room 306 at 9 oclock in the evening of December 12, 1991. xxx by the
time CHITOs knocking on the door woke him up, . He was able to fix the time of CHITOs arrival
at 1:30 A.M. because he glanced at the alarm clock beside the bed when he was awakened by the
knock at the door .

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he
let the latter in. . It was at around 3 oclock in the morning of December 13, 1991 when he woke up
again later to the sound of knocking at the door, this time, by Bernard Baptista (Bernard), .

xxx. With Bernard, Joseph then went to MALOUs room and thereat was shown by Bernard the open
window through which the intruder supposedly passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to
CHITO . He mentioned to the latter that something had happened and that they were not being
allowed to get out of the building. Joseph also told CHITO to follow him to Room 310.

CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in
Room 310 so Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see if
the others were there. xxx.

People from the CIS came by before 8 oclock that same morning . They likewise invited CHITO
and Joseph to go with them to Camp Crame where the two (2) were questioned .

An occupant of Room 310 Christian Alcala (Christian) recalled in Court that in the afternoon of
December 13, 1991, after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo
Acosta (Gary) were called to the Building and were asked by the CIS people to look for anything not
belonging to them in their Unit. While they were outside Room 310 talking with the authorities,
Rommel Montes (Loyloy), another roommate of his, went inside to search the Unit. Loyloy found
(TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their
unit which they did not know was there and surrender the same to the investigators. When he saw
the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the
latter usually bringing it to school inside the classroom (Ibid, p. 45).

In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt
with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3)
white T-shirts, an underwear, and socks (Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the
handkerchief (Exhibit "D-3) to be CHITOs because CHITO had lent the very same one to him .
The t-shirt with CHITOs fraternity symbol, CHITO used to wear on weekends, and the handkerchief
he saw CHITO used at least once in December.

That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted
mainly of Renato R. Alagadans testimony.
 xxx xxx xxx.

The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to
be full but was closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian,
Gary, Bernard, and Renato went back to Room 310 at around 3 to 4 oclock that afternoon along
with some CIS agents, they saw the bag at the same place inside the bedroom where Renato had
seen CHITO leave it. Not until later that night at past 9 oclock in Camp Crame, however, did Renato
know what the contents of the bag were.

xxx xxx xxx.

The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp
Crame, having acted in response to the written request of PNP Superintendent Lucas M.
Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory
examination on the specimen collated and submitted. Her Chemistry Report No. C-487-91 (Exhibit
"E"; Ibid., p. 112) reads in part, thus:

"SPECIMEN SUBMITTED:

xxx xxx xxx:

1) One (1) small white plastic bag marked UNIMART with the following:

xxx xxx xxx

Exh C One (1) night dress colored salmon pink.

2) One (1) small white pl astic bag marked JONAS with the following:

Exh. D One (1) printed handkerchief.

Exh. E One (1) white T-shirt marked TMZI.

Exh. F One (1) black short (sic) marked ADIDAS.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated
specimens.

FINDINGS:

Toxicological examination conducted on the above stated specimens gave the following results:

Exhs. C and D POSITIVE to the test for chloroform, a volatile poison.

Exhs. A, B, E and F are insufficient for further analysis.

CONCLUSION:
Exhs. C and D contain chloroform, a volatile poison."6 (Words in bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He denied committing
the crime imputed to him or making at any time amorous advances on Malou. Unfolding a different
version of the incident, the defense sought to establish the following, as culled from the same
decision of the appellate court:

In December of 1991, CHITO was a medical student of (UST). With Robert Chan and Alberto
Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity . MALOU, , was known to
him being also a medical student at the UST at the time.

From Room 306 of the Celestial Marie Building , CHITO, wearing the prescribed barong tagalog
over dark pants and leather shoes, arrived at their Fraternity house located at Dos Castillas,
Sampaloc, Manila at about 7 oclock in the evening of December 12, 1991. He was included in the
entourage of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of
their senior fraternity brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills, San Juan. xxx.

The party was conducted at the garden beside [the] swimming pool . Soon after, the four (4)
presidential nominees of the Fraternity, CHITO included, were being dunked one by one into the
pool. xxx.

xxx CHITO had anticipated his turn and was thus wearing his t-shirt and long pants when he was
dunked. Perla Duran, , offered each dry clothes to change into and CHITO put on the white t-
shirt with the Fraternitys symbol and a pair of black shorts with stripes. xxx .

Again riding on Albertos car and wearing "barong tagalog over a white t-shirt with the symbol TAU
Sigma Phi, black short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left
the party with Robert Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and
proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray
traveling bag containing "white t-shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at
room 306 in the afternoon of the previous day .

At the gate of the Building, CHITO knocked and , S/G Ferolin, looking at his watch, approached.
Because of this, CHITO also looked at his own watch and saw that the time was 1:30 (Ibid., p. 26).
S/G Ferolin initially refused CHITO entry . xxx.

S/G Ferolin called Unit 306 . xxx. When S/G Ferolin finally let him in, already about ten (10)
minutes had lapsed since CHITO first arrived (Ibid., p. 25).

CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window
and for five (5) minutes vainly tried to open the door until Rommel Montes, approached him and
even commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried
to open the door of Unit 306 but was likewise unsuccessful. CHITO then decided to just call out to
Joseph while knocking at the door.

It took another (5) minutes of calling out and knocking before Joseph, , at last answered the door.
Telling him, "Ikaw na ang bahala diyan" Joseph immediately turned his back on CHITO and went
inside the bedroom. CHITO , changed to a thinner shirt and went to bed. He still had on the same
short pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).
At 6 oclock in the morning of December 13, 1991, CHITO woke up . He was already in his school
uniform when, around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter
why this was so and, without elaborating on it, Joseph told him that something had happened and to
just go to Room 310 which CHITO did.

At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to
identify, went to the room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx.

Joseph told him that the security guard was not letting anybody out of the Building . When two (2)
CIS men came to the unit asking for Renato Baleros, CHITO presented himself. Congressman
Rodolfo B. Albano, father of MALOU, then asked him for the key to Room 306.

xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the
two (2) of them, CHITO and Joseph, were brought to Camp Crame.

When they arrived at Camp Crame , Col. Managuelod asked Joseph inside his room and talked to
him for 30 minutes. xxx. No one interviewed CHITO to ask his side.

xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo
physical examination at the Camp Crame Hospital .. At the hospital, CHITO and Joseph were
physically examined by a certain Dr. de Guzman who told them to strip .

xxx xxx xxx

CHITO had left his gray bag containing, among others, the black striped short pants lent to him by
Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 oclock
in the morning of December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when
he and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it
there and it was not opened up in his presence but the contents of the bag were already laid out on
the table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items thereat were
his.

The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag
which he had left at Room 306 in the early evening of December 12, 1991 before going to the
fraternity house. He likewise disavowed placing said black Adidas short pants in his gray bag when
he returned to the apartment at past 1:00 oclock in the early morning of December 13, 1991 (TSN,
June 16, 1994, p. 24), nor when he dressed up at about 6 oclock in the morning to go to school and
brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not
aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for the
first time that the black Adidas short pants was alluded to be among the items inside his gray bag
late in the afternoon, when he was in Camp Crame.

Also taking the witness stand for the defense were petitioners fraternity brothers, Alberto Leonardo
and Robert Chan, who both testified being with CHITO in the December 12, 1991 party held in Dr.
Durans place at Greenhills, riding on the same car going to and coming from the party and dropping
the petitioner off the Celestial Marie building after the party. Both were one in saying that CHITO was
wearing a barong tagalog, with t-shirt inside, with short pants and leather shoes at the time they
parted after the party.7 Rommel Montes, a tenant of Room 310 of the said building, also testified
seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the
door of Room 306 while clad in dark short pants and white barong tagalog.

On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes
after the dunking party held in her fathers house.8 Presented as defense expert witness was
Carmelita Vargas, a forensic chemistry instructor whose actual demonstration in open court showed
that chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth
on which it is applied.9

On December 14, 1994, the trial court rendered its decision10 convicting petitioner of attempted rape
and accordingly sentencing him, thus:

WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused
Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape
as principal and as charged in the information and hereby sentences him to suffer an imprisonment
ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as
Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all the accessory penalties
provided by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the sum
of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorneys fees of
P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.

SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR
No. 17271.

As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed
the trial courts judgment of conviction, to wit:

WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the
decision appealed from is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED.11

Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed
resolution of March 31, 1999.12

Petitioner is now with this Court, on the contention that the CA erred -

1. In not finding that it is improbable for petitioner to have committed the attempted rape
imputed to him, absent sufficient, competent and convincing evidence to prove the offense
charged.

2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence

since the prosecution failed to satisfy all the requisites for conviction based thereon.

3. In not finding that the circumstances it relied on to convict the petitioner are unreliable,
inconclusive and contradictory.

4. In not finding that proof of motive is miserably wanting in his case.

 5. In awarding damages in favor of the complainant despite the fact that the award was
improper and unjustified absent any evidence to prove the same.

6. In failing to appreciate in his favor the constitutional presumption of innocence and that
moral certainty has not been met, hence, he should be acquitted on the ground that the
offense charged against him has not been proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred
in affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of
attempted rape.

After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the
Court is disposed to rule for petitioners acquittal, but not necessarily because there is no direct
evidence pointing to him as the intruder holding a chemical-soaked cloth who pinned Malou down on
the bed in the early morning of December 13, 1991.

Positive identification pertains essentially to proof of identity and not per se to that of being an
eyewitness to the very act of commission of the crime. There are two types of positive identification.
A witness may identify a suspect or accused as the offender as an eyewitness to the very act of the
commission of the crime. This constitutes direct evidence. There may, however, be instances where,
although a witness may not have actually witnessed the very act of commission of a crime, he may
still be able to positively identify a suspect or accused as the perpetrator of a crime as when, for
instance, the latter is the person or one of the persons last seen with the victim immediately before
and right after the commission of the crime. This is the second type of positive identification, which
forms part of circumstantial evidence.13 In the absence of direct evidence, the prosecution may resort
to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret
and under condition where concealment is highly probable. If direct evidence is insisted under all
circumstances, the prosecution of vicious felons who committed heinous crimes in secret or
secluded places will be hard, if not well-nigh impossible, to prove.14

Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence
may be sufficient for conviction. The provision reads:

Sec. 4. Circumstantial evidence, when sufficient Circumstantial evidence is sufficient for conviction
if

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and

c) The combination of all the circumstances is such as to produce a conviction beyond

reasonable doubt.

In the present case, the positive identification of the petitioner forms part of circumstantial evidence,
which, when taken together with the other pieces of evidence constituting an unbroken chain, leads
to only fair and reasonable conclusion, which is that petitioner was the intruder in question.

We quote with approval the CAs finding of the circumstantial evidence that led to the identity of the
petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had access to the room of
MALOU as Room 307 where he slept the night over had a window which allowed ingress and egress
to Room 306 where MALOU stayed. Not only the Building security guard, S/G Ferolin, but Joseph
Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-
shirt when he arrived at the Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though
it was dark during their struggle, MALOU had made out the feel of her intruders apparel to be
something made of cotton material on top and shorts that felt satin-smooth on the bottom.

From CHITOs bag which was found inside Room 310 at the very spot where witness Renato
Alagadan saw CHITO leave it, were discovered the most incriminating evidence: the handkerchief
stained with blue and wet with some kind of chemicals; a black "Adidas" satin short pants; and a
white fraternity T-shirt, also stained with blue. A different witness, this time, Christian Alcala,
identified these garments as belonging to CHITO. As it turned out, laboratory examination on these
items and on the beddings and clothes worn by MALOU during the incident revealed that the
handkerchief and MALOUs night dress both contained chloroform, a volatile poison which causes
first degree burn exactly like what MALOU sustained on that part of her face where the chemical-
soaked cloth had been pressed.

This brings the Court to the issue on whether the evidence adduced by the prosecution has
established beyond reasonable doubt the guilt of the petitioner for the crime of attempted rape.

The Solicitor General maintained that petitioner, by pressing on Malous face the piece of cloth
soaked in chemical while holding her body tightly under the weight of his own, had commenced the
performance of an act indicative of an intent or attempt to rape the victim. It is argued that
petitioners actuation thus described is an overt act contemplated under the law, for there can not be
any other logical conclusion other than that the petitioner intended to ravish Malou after he
attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds that
if petitioners intention was otherwise, he would not have lain on top of the victim.15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal
knowledge or intercourse with a woman under any of the following circumstances: (1) By using force
or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When
the woman is under twelve years of age or is demented. Under Article 6, in relation to the
aforementioned article of the same code, rape is attempted when the offender commences the
commission of rape directly by overt acts and does not perform all the acts of execution which
should produce the crime of rape by reason of some cause or accident other than his own
spontaneous desistance.16

Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in
People vs. Lamahang,17 stated that "the attempt which the Penal Code punishes is that which has a
logical connection to a particular, concrete offense; that which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation."
Absent the unavoidable connection, like the logical and natural relation of the cause and its effect, as
where the purpose of the offender in performing an act is not certain, meaning the nature of the act
in relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate
offense, which is not a juridical fact from the standpoint of the Penal Code.18

There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the
present case. The next question that thus comes to the fore is whether or not the act of the
petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt
act of rape.
1avv phil.net
Overt or external act has been defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles nor
by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense.19

Harmonizing the above definition to the facts of this case, it would be too strained to construe
petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to
sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not
commence at all the performance of any act indicative of an intent or attempt to rape Malou. It
cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part
to undress Malou, let alone touch her private part. For what reason petitioner wanted the
complainant unconscious, if that was really his immediate intention, is anybodys guess. The CA
maintained that if the petitioner had no intention to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would
have taken if the victim had been rendered unconscious. Wrote the CA:

The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual
organ is not yet exposed because his intended victim is still struggling. Where the intended victim is
an educated woman already mature in age, it is very unlikely that a rapist would be in his naked
glory before even starting his attack on her. He has to make her lose her guard first, or as in this
case, her unconsciousness.20

At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule
on evidence in criminal cases. For, mere speculations and probabilities cannot substitute for proof
required to establish the guilt of an accused beyond reasonable doubt.21

In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape,
pointing out that:

xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for
there to be an attempted rape, the accused must have commenced the act of penetrating his sexual
organ to the vagina of the victim but for some cause or accident other than his own spontaneous
desistance, the penetration, however, slight, is not completed.

xxx xxx xxx

Petitioners act of lying on top of the complainant, embracing and kissing her, mashing her breasts,
inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and
detestable acts, do not constitute attempted rape absent any showing that petitioner actually
commenced to force his penis into the complainants sexual organ. xxx.

Likewise in People vs. Pancho,23 the Court held:

xxx, appellant was merely holding complainants feet when his Tito Onio arrived at the alleged locus
criminis. Thus, it would be stretching to the extreme our credulity if we were to conclude that mere
holding of the feet is attempted rape.

Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of
any wrongdoing whatsoever. The information filed against petitioner contained an allegation that he
forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the trial,
Malou testified about the pressing against her face of the chemical-soaked cloth and having
struggled after petitioner held her tightly and pinned her down. Verily, while the series of acts
committed by the petitioner do not determine attempted rape, as earlier discussed, they constitute
unjust vexation punishable as light coercion under the second paragraph of Article 287 of the
Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime
the right to be informed of the nature and cause of the accusation,24 it cannot be said that petitioner
was kept in the dark of the inculpatory acts for which he was proceeded against. To be sure, the
information against petitioner contains sufficient details to enable him to make his defense. As aptly
observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or
compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the
element of restraint or compulsion for the reason that this term is broad enough to include any
human conduct which, although not productive of some physical or material harm, would unjustly
annoy or irritate an innocent person.25 The paramount question is whether the offenders act causes
annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is
directed.26 That Malou, after the incident in question, cried while relating to her classmates what she
perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond
cavil that she was disturbed, if not distressed by the acts of petitioner.

The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal
Code is arresto menor or a fine ranging from 5.00 to 200.00 or both.

WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial
Court of Manila, is hereby REVERSED and SET ASIDE and a new one entered ACQUITTING
petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged
GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine
of 200.00, with the accessory penalties thereof and to pay the costs.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice
273 Phil. 769

MEDIALDEA, J.:
The accused, Fernando Collado, Crisanto Lara, Felix Collado (alias Elex
Collado) and Romeo Gloriani, were charged with the crime of robbery with
homicide in Criminal Case No. SC-3180 before the Regional Trial Court,
4th Judicial Region, Branch 26, Santa Cruz, Laguna. The information filed
in said case reads (p. 23, Rollo):

"'That on or about January 20, 1985 at Barangay Mojon, Municipality of

Pila, Province of Laguna, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and mutually
helping one another, with intent to gain, (with) violence against or
intimidation of person, in an uninhabited place and while conveniently
armed with a piece of wood and knife did, then and there, wilfully,
unlawfully and feloniously take, steal and carry away FIVE THOUSAND
FIVE HUNDRED SEVENTY PESOS (P5,570.00) in cash and one Seiko
Wrist watch worth P500.00 with the total value of P6,070.00 against the
will and consent of the owner thereof, Mrs. Maria Regay, and by reason and
on occasion of such robbery, said accused with treachery, abuse of superior
strength and in disregard of the respect due the offended party on account
of her age and sex being an old woman, with intent to kill and without
justifiable cause did then and there wilfully, unlawfully and feloniously
attack, assault, hit and stab with said piece of wood and knife Maria Regay
who as a result thereof sustained multiple injuries in the different vital
parts of her body which directly caused her death to the damage and
prejudice of the heirs of said Maria Regay.

"'CONTRARY TO LAW.'"
Upon being arraigned on April 15, 1986, Fernando Collado and Crisanto
Lara pleaded not guilty to the crime charged and the case against them was
set for trial while Felix Collado and Romeo Gloriani remained at large. On
September 8, 1986, Fernando Collado withdrew his former plea of not
guilty and pleaded guilty as an accomplice. The judgment with respect to
him was promulgated on September 9, 1986. Thereafter, trial on the merits
proceeded against Crisanto Lara. On May 4, 1989, the trial court rendered
its decision, the dispositive portion of which, reads (p. 43, Rollo):
"WHEREFORE, finding the accused, CRISANTO LARA, guilty beyond
reasonable doubt as principal in the crime of Robbery with Homicide, he is
hereby sentenced to suffer the penalty of reclusion perpetua and the
accessory penalties imposed by law, to indemnify the heirs of the victim in
the amount of P30,000.00, without subsidiary imprisonment in case of
insolvency, and to pay the costs.

"SO ORDERED."
Hence, the present appeal by Crisanto Lara.

The antecedent facts, as stated in the plaintiff-appellee's brief are, as

follows (pp. 4-18, Appellee's Brief; p. 97, Rollo):

"On January 18, 1985, appellant Crisanto Lara went to the house of
Honorio delos Santos in Pila, Laguna and proposed to the latter that they
hold-up Maria Regay. The following day, January 19th, at around 6:00
o'clock P.M., appellant returned to his (delos Santos) house to follow up the
proposal. On both occasions, however, delos Santos told appellant that he
did not want to go as he did not like that kind of work (pp. 10-11, 16, TSN,
April 21, 1987).

"On January 20, 1985 at around 7:00 o'clock A.M., Josefina Buenaflor, a
resident of Mojon, Pila, Laguna, and a daughter of the victim Maria Regay
saw Crisanto Lara on the road walking to and fro between his house and her
house while conversing with the neighbors. Afterwards, Nanding Collado
came out from his house and went over to Crisanto (p. 6, TSN, October 14,
1986).

"At about 9:30 to 10:00 A.M. of the same day, January 21, (sic) 1985, Mario
Marasigan, son-in-law of the victim, was at the coconut plantation he was
tending which was about 100 meters from the barrio road. He was cutting
trees which he would use as posts for his house. He climbed up a tall madre
de cacao tree and after he had cut a branch, he saw Felix Collado and
Fernando Collado standing on either end of the pathway leading to
Barangay Pansol and Concepcion as if waiting for somebody. He also saw
Crisanto Lara and Romeo Gloriani at the middle of this pathway about 40
meters away from him. Crisanto Lara was holding a piece of wood and
Romeo Gloriani was hiding behind a coconut tree (TSN, September 15,
1986, pp. 5-6, 8; TSN, September 30, 1988, p. 11).
"After a few minues (sic), he saw the victim Maria Regal (sic) walking along
the pathway at a distance of more or less 40 meters from him on the way
back to Mojon from the direction of Barangay Concepcion. Felix Collado
who was on that end of the pathway hid himself and she continued walking
to where Crisanto Lara was now positioned hiding behind a coconut tree
(TSN, Sept. 30, 1986, p. 15). Then Crisanto Lara struck her on the face with
a piece of wood, a guava branch with a diameter of around 2 1/2 inches,
with such strong force that the old woman fell on the ground. Crisanto Lara
then hid himself and Romeo Gloriani dragged the stricken victim for about
5 (sic) meters to a coconut tree where Gloriani pulled out his knife and after
stabbing her once she appeared to regain consciousness and began
struggling on her back and rolling on the ground as Gloriani continued
stabbing her. The weapon used by Gloriani for stabbing was a double
bladed dagger around 6 to 7 inches long excluding the handle (TSN, Sept.
15, 1985, pp. 7-9; TSN, Sept. 30, 1985, p. 16).

"Marasigan was taken by surprise seeing his uncle hit his mother-in-law
that he was not able to shout (p. 15, ibid).

"When the old woman stopped struggling, Romeo Gloriani pulled up her
skirt and cut a cord tied around her waist where she kept her money (p.
17, ibid) and at that time Crisanto Lara reappeared and came near and both
Crisanto Lara and Romeo Gloriani left followed by Fernando Collado and
Elex Collado who took the same route through the fence and towards the
house of Fernando Collado (pp. 8-9, ibid).

"Marasigan then went down the tree but did not go near the
victim. Neither did he tell his relatives about the incident in consideration
of appellant Crisanto Lara who is his uncle. He left the place at around
10:30 A.M. and returned to his house and did his normal work there (pp.
19-20, 26, ibid).

"In the same morning at around 10:00 A.M. Josefina Buenaflor was told by
her sister that their mother who attended a wedding feast at Mojon had not
yet returned home. So they started to look for her at the coconut plantation
as this was the route she usually took in going to Mojon. They failed to find
her. They inquired from their neighbors who also did not know the
whereabouts of their mother (pp. 9-10, TSN, October 14, 1986).

"At around 3:00 o'clock P.M., a certain Ugid Balatibat told Josefina
Buenaflor that he saw the latter's mother sprawled on a coconut
plantation. She and her sister ran to the place, crying. But before they
reached the place, about three coconut plantations away from the place
where they eventually (sic) found their mother, Crisanto Lara stopped them
telling them, not to touch the body of their mother as there were no
policemen yet at that time (pp. 9, 10, 14, ibid).

"Finally, on January 21, 1985, Josefina Buenaflor was able to see the body
of her mother at the plantation. She was then with policemen and with her
barrio mates (p. 10, ibid).

"Her mother had a 'kacha' tied on her waistline where she kept the money
she earned from the sale of the pigs and chickens that she raised. When her
mother was found dead, there was no more 'katsa' wrapped around the
latter's waist (pp. 12-13, ibid).

"Maria Regay also had a Seiko watch valued at P500.00 which she placed in
her pocket. The watch, however, was not anymore in her pocket when she
was found dead (pp. 13-14, ibid).

"The wake of Maria Regay lasted for 5 days. Crisanto Lara attended the
wake and even often looked at the cadaver of Maria Regay. He even
solicited contributions from tricycle drivers (pp. 10-11, 15, ibid).

"Dr. Rosauro Framil, a Municipal Health Officer of Pila, Laguna and a

resident of Pila, Laguna conducted an autopsy on a certain Maria Regay on
January 21, 1985, at the Laguna Provincial Hospital Morgue, Sta. Cruz from
9:00 P.M. to 12:00 midnight of January 21, 1985 (pp. 4-5, TSN, September
9, 1986).

"The victim had already shown sign of putrefactive changes as shown by the
appearance of small worms on the eyes, nose and ear openings. The body
was already emitting unfavorable odor which suggest (sic) death for more
than 24 hours. In his opinion the incident took place at more or less 10:00
A.M. of January 20, 1985 (pp. 5-6, 19, ibid).

"There was a depressed fracture on the head region and on the left
temporal with contusions. There was also a periorbital contusion on the
side of the head (p. 6, ibid).
"He further testified that on the chest and back, there were multiple stab
wounds, about 9:2 stab wounds on the left and right area below the clavicle,
one on the right breast, a stab wound on the left breast, a stab wound on the
right side of the chest just above and medial to right arch, a stab wound on
the mid portion, on the left side of the chest just above the left subcostal
arch, and another stab wound on the left side of the chest along mid
auxilary line about the level of the 7th intercostal space. Length of the stab
wound on both sides of the scapular area on the back and abdominal
region, there was no external injury seen on the area. On the extremities,
the right forearm had a fracture closed and complete at its 3rd radio/ulna
bones. The left upper arm was almost macerated which could be the result
of some animal bites probably a stray dog. These were the external findings
(p. 6, ibid).

"As to internal findings, there was extradural hemorrhage on the left

temporal area; on the chest intrapleural hemorrhage bilateral due to the
wound inflicted on both lungs, right middle lobe has been hit. Left lung
middle and lower lobe have both stab wounds which produced more
hemorrhage than that of the left. The heart was not hit (p. 7, ibid).

"The affected internal organs of the body of the victim were: fracture on the
head region, so there was involvement of the brain, the extradenal
hemorrhage of the left temporal area is the result of the depressed fracture
on the head. On the body, the internal organs severed were the lungs, right
and left and in the abdominal region, there were none and also the bones
which were evidenced by the fracture on the right forearm and the right
upper arm (p. 8, ibid).

"On opening the skull, there was extradenal hemorrhage on the left
temporal area. It is located on the side. Extradenal means that the brain is
covered by denal matter and outside of that is the place where the
hemorrhage sets in (p. 11, ibid).

"By the nature of the total injuries, the instruments used by the assailant
could be that considering the fracture on the head, it could be due to some
hard object like a piece of wood or metal which most probably could give
rise to the depressed fracture. With respect to the stab wounds, probably a
double bladed knife could have been used because (sic) of the nature of the
stab wounds itself (p. 8, ibid).
"The cause of death was pulmonary failure secondary to lung
damage. Severe hemorrhage intrapleural secondary to lung damage
brought about by the penetrating stab wounds on the chest, most probably,
the weapon used was a knife. Since the hemorrhage on the brain is not as
much as that to the hemorrhage on the lungs, he presumed that the cause
of death was more due to the damage on the lungs. Assuming, however,
that there were no other wounds and that the only wound was on the skull
which caused hemorrhage, the hemorrhage on the skull would be sufficient
to cause death (p. 11, ibid).

"He could not tell the relative position of the victim and the assailant but as
to the wound on the head, however, his honest guess was that when the
victim was hit, the latter was not facing the assailant (p. 13, ibid).

"On February 5, 1985, Mario Marasigan finally reported to Pfc. Villanueva

that he witnessed the killing and robbery committed against Maria
Regay. He said that he reported the matter which he kept to himself for 15
days because he was bothered by his conscience behind the death of his
mother-in-law (pp. 22-23, 24-25, TSN, September 30, 1986).

"In April of 1985, Fernando Collado was apprehended at the Pacita

Complex, San Pedro, Laguna. Raymundo T. Matiola, a policeman and a
resident of Pila, Laguna took the sworn statement (Exhibit C) of Fernando
Collado on April 8, 1985 that there were four who were responsible for the
slaying and robbing of Maria Regay, namely: one alias Elee, Fernando
Collado Crisanto Lara and Loriana, whose first name he did not remember
(pp. 3-4, TSN, December 12, 1986).

"The defense of appellant Crisanto Lara is one of alibi. He testified that he

was a resident of Balat-atis, San Antonio, Quezon. On January 20, 1985 at
around 9:00 A.M. to 11:00 A.M., he was at the Laguna Provincial Hospital
in Sta. Cruz. He visited his nephew, Romeo Marasigan as the latter's body
become (sic) swollen. He stayed in the hospital up to more or less 2:00
o'clock P.M. (pp. 3-4, 9, TSN, March 11, 1987).

"When he left the hospital, he went to Barangay Pansol, Pila, Laguna and
arrived there at 3:00 P.M. He went to the house of the father of his
nephew. After that he rested and then he cooked food. After cooking, he
again rested for more or less one (1) hour and then he ate (pp. 5-6, ibid).
"He spent the night of January 20, 1985 in the house of the father of his
nephew. He went to sleep at more or less 6 (sic) or 6:30 P.M. He woke up
at 5:00 A.M. of January 21 (p. 6, ibid).

"After that, he went to the house of his niece at Barangay Mojon, Pila,
Laguna and arrived there at more or less 10:00 A.M. While there, he heard
that a certain Maria was missing (p. 7, ibid).

"He admitted seeing Josefina Buenaflor on January 21, 1981 (sic) while she
was on her way to see her mother and told her that it would be better to call
first the police (p. 7, ibid) but denied the testimony of Mario Marasigan that
he was one of those who participated in the slaying and robbing of Maria
Regay and the one who allegedly struck Maria with a branch of guava tree
because he cannot hold a branch as it is heavy and his left hand is
amputated and his other hand is 'pasmado.' For the record, appellant's
right hand was shown the forefinger is severed and there is a scar at the
back of his palm, and the middle finger is also damaged as well as the ring
finger. The other fingers are deformed (p. 8, ibid).

"His left hand was amputated and right hand damaged on March 13, 1981
when he caused palay to be milled that day and he was waylaid while going
to the ricemill. Since then and prior to February 20, 1984 (sic) that was the
condition of his left and right arm (p. 2, TSN, March 17, 1987) but he
continued to have a job of 'buying banana fruits' (p. 7, ibid).

"But while he claimed that his right hand could not hold a knife, when
asked to handle a stamp pad in open court, he was able to grasp the same
(pp. 7-8, ibid).

"During the wake, he solicited from the tricycle drivers because he was told
to do so by Honorio, a member of the barangay council and an 'alalay' of
the barangay captain. The one who gave his collection to the family of
Maria Regay was Honorio (pp. 4-5, TSN, April 2, 1987).

"Fernando Collado who pleaded guilty as an accomplice in this case claimed

that he knows appellant Crisanto Lara only by face; that it was only at the
provincial jail that they came to know each other (pp. 2-3, TSN, January 14,
1987).

"On January 20, 1985 at around 9:00 A.M. to 10:30 A.M., he remembered
being in the land of a certain Jun at Mojon, Pila, Laguna whose full name
he did not know and while there, his uncle, Romeo Gloriani, called him and
told him that he was waiting for the old woman, Maria. At that time, aside
from he (sic) and his uncle, there were no other persons around (pp. 3-
4, ibid).

"When Matandang Maria showed up, his uncle pointed a balisong knife at
her. After that his uncle got her money and gave the money to him. After
he received the money, he ran away. He did not anymore see what his
uncle did to Matandang Maria (p. 5,ibid).

"He proceeded to the irrigation site of Mojon, Pila, Laguna where his uncle
followed him and he gave him the money who in turn gave him P200.00
(pp. 5-6, ibid).

"After that, his uncle left. Before the latter left, however, he told him that if
the event would be discovered, witness should tell that it was Crisanto Lara
and Felix Collado who did it (pp. 6-7, ibid).

"After that, he stayed in the town proper of Pila for 2 weeks and he
proceeded to San Pedro at the Pacita Complex where he worked at a
construction company. After 2 months of working there, however, he was
apprehended by the Pila Police in connection with the slaying and robbing
of Maria Regay. He was brought to the municipal building of Pila (pp. 7-
8, ibid).

"He alleged that during his investigation, he was given blows, kicks, and
bullets placed in between his fingers and electric treatment by the police
authorities of Pila, because he told them that it was his uncle who was the
culprit. After that he was asked to sign a confession (Exhibit C) prepared
by police authorities (pp. 8-10, ibid).

"While detained at the Provincial Jail, he wrote a letter (Exhibit 1)

addressed to Fiscal Regaza, a portion of which, marked as Exhibit 1-a,
states as follows:

'x x x xxx xxx

'x x x aaminin ko na po ang aking pagkakasala sa harap ng hukuman,

subalit kung bibigyan po ninyo ako ng mababang sintensiya, labis na po
akong naawa sa isang tao na napasangkot o isinangkot ng aking
complainant dahil sa katotohanang siya po ay wala sa lugar na
pinangyarihan ng krimen.

'Ang tao pong ito ay si Ginoong Crisanto Lara, tatlumpu at apat na taong
gulang ng Barangay Balat-atis, San Antonio, Quezon.'
"While he initially denied being (sic) written Exhibit 1 claiming that it was
written by Jojo Acosta from San Pedro (p. 19, TSN, January 23, 1987), on
subsequent questioning by the defense counsel, however, he stated that the
whole of Exhibit 1-a are his (p. 14,ibid)."
In this appeal, the accused-appellant raises the following assignment of
errors (pp. 51-52, Rollo):

"I

"The trial court erred in giving credence to the testimony of Mario

Marasigan.

"II

"The trial court erred in finding that accused Crisanto Lara struck the
victim with a piece of wood and that the prosecutor was able to
demonstrate that the accused can still hold and grip a stamp pad.

"III

"The trial court erred in giving credence to the testimony of rebuttal witness
Honorio Delos Santos.

"IV

"The trial court erred in not giving credence to the entire testimony of
accused Fernando Collado."
I

The accused-appellant tries to destroy the credibility of Mario Marasigan by

asseverating that: 1) if he really searched the coconut plantation in looking
for a suitable post, he would have seen the four accused during that time
considering that the tree where he got the post is about 50 meters away
from the scene of the incident, unless the four accused and the victim fell
down from the sky; 2) the sound produced by cutting the branches of a tree
would not have escaped the sense of hearing of the four accused; 3) he
testified that the first time he saw the accused-appellant again since
January 20, 1985 was when the accused-appellant was apprehended by the
police but according to the daughter of the victim, the accused-appellant
attended the wake and even solicited contributions; 4) his failure to help
the victim and report the incident immediately but instead proceeded to do
his normal work is inconsistent with human nature; and 5) his cross-
examination is full of material inconsistencies as to the length of time he
stayed atop the tree and the place where the accused-appellant was
positioned.

Mario Marasigan's failure to see the four accused at the time he was looking
for posts could be due to the fact that the coconut plantation was vast (p. 4,
tsn, September 30, 1986). There were ten (10) coconut trees, seven (7)
lanzones trees, two (2) sampaloc trees and bamboo grass between the place
where he and the four accused were situated (p. 9, ibid). It was only when
he was already on the top of a tree (p. 7, ibid), about four (4) meters from
the ground (p. 8, ibid), facing the direction where the four accused were
positioned (p. 10, ibid), that he saw them. His view while on the top of a
tree was not in any way obstructed by these trees because they were tall and
far from one another (pp. 9-10, ibid).

Mario Marasigan has cut just one branch of the tree when he saw the four
accused (p. 11, tsn, September 30, 1986). He used a bolo in cutting this
branch (p. 7, ibid). The distance between him and the four accused was
about fifty (50) meters (p. 8, ibid). Taking into account these
circumstances, the four accused could not have heard the sound produced
when Mario Marasigan cut a branch of the tree. Besides, their attention
was focused on the arrival of the victim (p. 5, tsn, September 15,
1986). Thus, the four accused could not have noticed the presence of Mario
Marasigan.

It is probable that Mario Marasigan and the accused-appellant attended the

wake on different dates and time that is why the former saw the latter for
the second time since the incident only when he was apprehended by the
police.

Mario Marasigan's failure to help the victim, his mother-in-law, and report
the incident immediately but instead proceeded to do his normal work, per
se, is inconsistent with human nature. However, such failure was
satisfactorily explained by him. He failed to help the victim while the latter
was being attacked because he was taken by surprise when he saw his
uncle, the accused-appellant, hit her (p. 15, p. 18, tsn, September 30,
1986). He also failed to report the incident at once to the authorities
because one of the perpetrators of the crime is his uncle and he pities him
(p. 12, tsn, September 15, 1986; p. 26, tsn, September 30, 1986). He
reported the incident on February 5, 1985 or after 15 days, when he was
disturbed by his conscience (p. 22, tsn, September 30, 1986).

The inconsistencies referred to are de minimus which are not sufficient to

blur or cast doubt on Mario Marasigan's straightforward attestations
(see People v. Orita, G.R. No. 88724, April 3, 1990, 184 SCRA 105,
citing People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA
98). Rather than discredit his testimony, discrepancies on minor details
must be viewed as adding credence and veracity to such spontaneous
testimonies (Aportadera, et al. v. Court of Appeals, et al., G. R. No. L-
41358, March 16, 1988, 158 SCRA 695). Whether Mario Marasigan stayed
on top of the tree for ten (10) minutes or for twenty (20) to twenty five (25)
minutes and whether the accused-appellant was at the middle of the road
or behind a coconut tree is beside the point.

II

Still in relation to the questioned credibility of Mario Marasigan, the

accused-appellant alleges that he (Mario Marasigan) could not have
positively identified the piece of wood (guava branch, about 2.5 inches in
diameter) allegedly used in hitting the victim because he was fifty (50)
meters away, unless he possesses the eye of an eagle. The accused-
appellant is unable to hold a piece of wood with a diameter of about 2.5
inches much more swing and strike it with such force as to cause a person
to fall down because his left hand is amputated, his right hand is
"pasmado," with the forefinger severed, the middle and ring fingers
damaged and the other two fingers deformed. Contrary to the finding of
the trial court, nothing in the record shows that the accused-appellant was
able to hold and grip a stamp pad. Had the proceedings taken place before
the judge who penned the decision, he could have taken judicial notice that
at that point in time when the fiscal put into the right hand of the accused-
appellant a stamp pad, his right hand was then resting on the arm rest of
the chair with his palm open.

Mario Marasigan was able to specify the kind of wood used by the accused-
appellant in hitting the victim perhaps because of the fact that he is a
carpenter (p. 2, tsn, September 15, 1986), resident in a rural area and tends
a plantation (p. 4, ibid). It is, therefore, to be expected that he is familiar
with different types of wood. At any rate, the specific kind of wood used by
the accused-appellant is again of no moment. What is material is the
testimony of Mario Marasigan that the accused-appellant struck the victim
on the face with a piece of wood (p. 7, ibid). This was corroborated by the
testimony of the physician that the fracture on the head of the victim was
most probably caused by some hard object like a piece of wood or metal (p.
8, tsn, September 9, 1986).

The alleged incapacity of the accused-appellant cannot overthrow the

positive testimony of Mario Marasigan that he saw him (the accused-
appellant) strike the victim with a piece of wood which caused her to fall to
the ground (p. 15, tsn, September 30, 1986). The accused-appellant should
have proven in court his alleged incapacity. He merely testified that he is in
a position to submit to a physical examination with regard to the capability
of his right hand should the trial court desire (p. 8, tsn, March 11, 1987). It
was his duty to substantiate his contention and not rely on the desire of the
trial court. Anyway, in his cross-examination, the prosecution succeeded in
eliciting from him the vital fact that he is not left-handed and even after his
hands were damaged, he was still able to work, that is, buying banana fruits
(p. 7, tsn, March 17, 1987). Moreover, when a stamp pad was thrown to
him, he held it with his right hand (p. 8, ibid). The counsel of the accused-
appellant objected to the manner the fiscal conducted the cross-
examination because it was tantamount to making the accused-appellant
the prosecution's witness (ibid) and not because the right hand of the
accused-appellant was then resting on the arm rest of the chair with the
palm open, as he now claims. The defense of incapacity which was weak
from the very start, collapsed during the cross-examination.

III
The accused-appellant likewise puts in issue the credibility of Honorio
delos Santos because according to him, he came to know of the plan to rob
the victim on January 18 and 19, 1985 when the accused-appellant made
such proposal to him. However, it took him two years, three months and
three days before he revealed such proposal.

The delay by Honorio delos Santos to reveal the proposal made by the
accused-appellant to him was satisfactorily explained in his testimony that
it was long after the incident happened that the children of the victim
needed him (p. 26, tsn, April 21, 1987). At any rate, the accused-appellant's
conviction may be sustained even without Honorio delos Santos'
testimony. The testimony of Mario Marasigan, being positive and credible,
is sufficient to support a conviction (see People v. Mision, G.R. No. 63480,
February 26, 1991).

IV

Finally, the accused-appellant maintains that since the judge who wrote the
decision had no opportunity of observing the demeanor of Fernando
Collado when he testified in court, the most logical thing for him to do was
to consider his entire testimony or disregard it entirely.

It is not unusual for a judge who did not try a case to decide it on the basis
of the record for the trial judge might have died, resigned, retired,
transferred, etc. (People v. Escalante, et al., G.R. No. L-37147, August 22,
1984, 131 SCRA 237). The fact that the judge who heard the evidence is not
the one who rendered the judgment and that for that reason the latter did
not have the opportunity to observe the demeanor of the witnesses during
the trial but merely relied on the records of the case does not render the
judgment erroneous (Co Tao v. Court of Appeals, 101 Phil. 188 and U.S. v.
Abreu, 30 Phil 402). Actually, it was not necessary for the trial judge, who
wrote the decision, to have observed the demeanor of Fernando
Collado. He merely considered his admission in court that money was
taken from the victim, P200.00 of which was given to him (p. 35, Rollo),
and disregarded his inconsistent testimony as to the participation of the
accused-appellant in the crime charged (pp. 40-41, Rollo):
"It is on record that Fernando Collado declared at the courtroom that
Crisanto Lara was not with them at the time of the robbery, (TSN, January
14, 1987, p. 5) but this appears to be a mere afterthought because at the
police station, he implicated the accused (Ibid, p. 7). Though this was later
explained by him as being the instruction of their uncle, Romeo Gloriani,
his excuse imply lacks reliability and acceptance. Why impute the crime, of
all people, on a nephew, Feli(x) Collado, and a friend, Crisanto Lara? Why
will his uncle involve the two? Feli(x) Collado is is (sic) his brother. Why
did he blindly follow his uncle? (W)as it not more convenient to point to
other persons not dear to them? This evidently goes against the realities of
life, unless of course, they were really in conspiracy with one another."
We note that the judge who rendered judgment in this case took on a
painstaking task of scrutinizing in great detail the records and wrote a
comprehensive decision (pp. 34-41, Rollo):

"After an evaluation of the evidentiary records, the Court finds, beyond

reasonable doubt, that the accused, Crisanto Lara, has committed the crime
of Robbery with Homecide (sic). The prosecution has sufficiently
established by strong and persuasive evidence that the accused was one of
four persons who conspired to commit robbery against the victim during
the perpetration of which the latter was killed. The evidence shows that the
accused is a principal by direct participation. No less than his nephew,
Mario Marasigan, testified that he saw him struck the victim on the face
with a piece of wood which appeared to him to be a branch of a guava tree
(TSN, September 15, 1986, p. 7). This was corroborated by the findings of
the medico-legal officer who testified that the victim also suffered a fracture
on the head due to some hard object, like a piece of wood (TSN, September
9, 1989, pp. 8 and 11).

"The overt act was the initial step of the conspirators in executing the crime
charged. After the victim was struck by the accused, she was later on
dragged and stabbed several times by Romeo Gloriani (Ibid, p. 9) who
thereafter raised her skirt and cut the cord of muslim cloth (katsa) around
her waist (TSN, September 30, 1986, p. 17; TSN, October 14, 1986, p. 12)
where she usually kept her money (TSN, September 15, 1986, p.
11). Accused Fernando Collado confirmed that money was taken from the
victim, P200.00 of which was given to him (TSN, January 14, 1987, p. 5).

"x x x xxx x x x.
"The bare fact is that Mario Marasigan was very positive that it was the
accused who struck the victim. There could not have been a case of
mistaken identity; the accused was his uncle, a brother of his father,
Dionisio Marasigan, on his maternal side (TSN, September 15, 1986, p. 3;
TSN, March 17, 1987, p. 6). And it has not been shown that Mario
Marasigan had an ill motive against his uncle.

"x x x xxx x x x.

"As the accused was positively identified, his defense that he was in a
hospital at Sta. Cruz, Laguna, at the time of the incident cannot
prosper. Alibi is unavailing as a defense against the positive identification
of the accused by a witness (See Aportadera v. Court of Appeals, G.R.
31358, March 16, 1988). It is an inherently weak defense for it is easy to
fabricate (Ibid). For alibi as a defense to succeed, it must be shown that not
only was an accused at some other place at the same time but it was
physically impossible for him to have been at scene of the crime at the time
of its commission (People vs. Almario, G.R. 69374, March 16, 1989; People
vs. Reunir, G.R. 73605, January 29, 1988).

"In this case, assuming his assertion that he was at the Laguna Provincial
Hospital at Santa Cruz is true, such fact cannot eliminate him as a possible
perpetrator. Judicial notice can be taken of the fact that Sta. Cruz is just 9
kilometers away from Pila and can be reached within 8 to 12 minutes. Brgy.
Mojon is even nearer. In one case, it was held that the fact that the victim's
house is accessible by jeep or tricycle via a well-paved road in a matter of 15
to 20 minutes from the place where the accused claimed to be at the time
the crime was committed, sufficiently demonstrates that it was not
physically impossible for the accused to be at the scene of the crime
(See People v. Temblor, G.R. 66884, May 28, 1988). In the case of People
vs. Almario, supra, the Supreme Court rejected the alibi of the accused who
claimed that he was at Tondo, Manila, which is one and half hour drive
from the scene of the crime, Lumban, Laguna.

"Anyway, his self-serving defense of alibi was lacking in corroboration. His

nephew, Romeo Marasigan, whom he claimed to have visited at the hospital
was never presented to confirm his version. Hospital records could have
been subpoenaed and presented to show that he was really confined in the
said hospital. In other words, his claim is lacking in convincing details to
inspire belief.
"x x x xxx x x x.

"Moreover, his claim that he was at San Antonio, Quezon, before January
20, 1985 and arrived at Pila only in the morning of said date is belied by the
testimony of Honorio delos Santos whom he pointed to as the person to
whom he turned over his collections from the tricycle drivers (TSN, April 2,
1987, p. 5). Honorio delos Santos bluntly stated that the accused was the
mastermind because on two occasions before the incident, on the 18th and
the 19th of January, 1985, the latter approached him at their house at
Mojon, Pila, Laguna and proposed to him that they rob the victim (TSN,
April 21, 1987, p. 3 to 10)."
We find that the quantum of proof necessary to overcome the presumption
of innocence and establish the guilt of the accused-appellant beyond
reasonable doubt for the crime charged is adequate.

The trial court appreciated the aggravating circumstances of disregard of

age and sex, uninhabited place, taking advantage of superior strength and
evident premeditation. Disregard of the respect due the offended party by
reason of his rank, age or sex may be taken into account only in crimes
against persons or honor, when in the commission of the crime there is
some insult or disrespect shown to rank, age or sex. It is not proper to
consider this aggravating circumstance in crimes against
property. Robbery with homicide is primarily a crime against property and
not against persons. Homicide is a mere incident of the robbery, the latter
being the main purpose and object of the criminal (People v. Pagal, et al.,
G.R. No. L-32040, October 25, 1977, 79 SCRA 570; People v. Capillas, et
al., G.R. No. L-27177, October 23, 1981, 108 SCRA 173; People v. Pecato, et
al., G.R. No. L-41008, June 18, 1987, 151 SCRA 14). Neither should evident
premeditation be considered against the accused-appellant. The requisites
necessary to appreciate evident premeditation have not been met in this
case. Thus, the prosecution failed to prove all of the following: (a) the time
when the four accused determined to commit the crime; (b) an act
manifestly indicating that the four accused had clung to their determination
to commit the crime; and (c) the lapse of sufficient length of time between
the determination and execution to allow them to reflect upon the
consequences of their act (People v. Batas, G.R. Nos. 84277-78, August 2,
1989, 176 SCRA 46; People v. Iligan, et al., G.R. No. 75369, November 26,
1990).
The aggravating circumstances of uninhabited place and taking advantage
of superior strength attended the commission of the crime. Article 294 of
the Revised Penal Code provides, inter alia, that any person guilty of
robbery with the use of violence against or intimidation of any person shall
suffer the penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been
committed. Correlating this provision with Article 63 of the Revised Penal
Code, paragraph 2, subparagraph 1 which provides that when in the
commission of the deed there is present only one aggravating circumstance,
the greater penalty shall be applied, the proper imposable penalty is
death. In view, however, of Article III, Section 19(1) of the 1987
Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-
70, February 9, 1989, that the cited Constitutional provision did not declare
the abolition of the death penalty but merely prohibits the imposition of the
death penalty, the Court has since February 2, 1987 not imposed the death
penalty whenever it was called for under the Revised Penal Code but
instead reduced the same to reclusion perpetua (People v. Orita, supra;
People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990, 182 SCRA
182). Reclusion perpetua, being a single indivisible penalty under Article
294, paragraph 1 of the Revised Penal Code, is imposed regardless of any
mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713,
March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L-38449,
November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744,
May 31, 1985, 136 SCRA 702).

ACCORDINGLY, the decision appealed from is hereby AFFIRMED,

subject to the modification that the civil indemnity is increased to
P50,000.00.

SO ORDERED.
 EN BANC

PEOPLE OF THE PHILIPPINES, G.R. No. 168050

Plaintiff-Appellee,
Present:
PUNO, C.J.
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.
BERNARDINO GAFFUD, JR., Promulgated:
Accused-Appellant. September 19, 2008

x------------------------------------------------x

DECISION

PUNO, C.J.:

For review before this Court is the Decision[1] of the Court of Appeals (CA)
dated March 31, 2005 in CA-G.R. CR-HC No. 00060 finding the
accused-appellant Bernardino Gaffud, Jr. guilty of the complex crime of double
murder and sentencing him to death, affirming with modification the Decision [2] of
the Regional Trial Court (RTC) dated August 28, 2002 in Criminal Case No. 1125.
The facts of this case were aptly summarized by the CA as follows:

Records show that accused-appellant Bernardino Gaffud, Jr., along with

two John Does were indicted for Double Murder for the killing of Manuel
Salvador and Analyn Salvador, under the following Information:

The undersigned 2nd Assistant Provincial Prosecutor accuses Bernardino

Gaffud, Jr. and two (2) JOHN DOES of the crime of DOUBLE MURDER
defined and penalized under Article 248 of the Revised Penal Code,
committed as follows:

That on or about 8:00 oclock in the evening of May 10, 1994 at Sitio Biton,
Barangay Wasid, Municipality of Nagtipunan, Province of Quirino,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused with intent to kill and motivated by long standing grudge,
after conspiring, confederating and mutually helping one another, by means
of fire, did then and there, willfully, unlawfully, and feloniously, shot and
burn Manuel Salvador and Analyn Salvador which caused their
instantaneous death.

CONTRARY TO LAW. (p. 15, Records)

It appears that Manuel Salvador and his daughter Analyn Salvador were
killed when the house they were staying in located at Sitio Biton,
Barangay Wasid, Nagtipunan, Quirino was burned down while they were
inside.An eyewitness pointed to accused-appellant Bernardino Gaffud, Jr.
as one of the arsonists.

Upon preliminary investigation, where appellant Gaffud, Jr. failed to

appear despite being subpoenaed to submit his counter-affidavit, Assistant
Provincial Prosecutor Ferdinand Orias resolved that charges for double
murder by means of fire be filed against herein appellant and two John
Does, (p.14, Records).

When arraigned on June 6, 1995, accused-appellant Gaffud, Jr. entered a

plea of Not Guilty, (p. 48, Records), paving the way for his trial.
The prosecution presented six (6) witnesses against appellant Gaffud, Jr.,
namely Dominga Salvador, common-law wife of Manuel Salvador and
mother of Analyn Salvador, Orly Salvador, nephew of Manuel Salvador,
Potado Ballang, Barangay Captain of Wasid, Nagtipunan, Quirino, Dan
Dangpal, a neighbor of the deceased, SPO2 Dominador Tabal, the
investigating police, and Dr. Teodomiro Hufana who conducted the
autopsy on the deceased Manuel Salvador.
Evidence for the prosecution tended to prove that on the night of May 10,
1994, Orly Salvador was on his way to the house of his uncle Manuel
Salvador to fetch the latter as they were going to attend a wedding at the
nearby barangay hall. He suddenly heard two gunshots. Thereafter, he
saw the house of his uncle burning. Because of the glow emanating
therefrom, he saw three persons within the vicinity of the burning
house. He saw them hurriedly leaving the place towards the direction of
the Cagayan river. One of the three was holding a flashlight, whom he
identified as appellant Gaffud, Jr. He could not identify the two other
persons. After the house was burned, Orly went towards the barangay hall
to see if his uncle Manuel Salvador was there, but he met Brangay Captain
Potado Ballang who informed him that his uncle was not at the barangay
hall. They then proceeded to the burned house, and found the charred
remains of Manuel Salvador and Analyn Salvador. (TSN, October 10,
1995, pp. 3-8)

Barangay Captain Potado Ballang testified that he saw appellant Gaffud,

Jr. on the fateful day at around 6:30 PM, along the riverbank, a few meters
away from the house of Manuel Salvador. When Potado asked what he
was doing there, Gaffud, Jr. said he was looking for his boat. However,
Potado knew that the appellant did not own a boat. After a few minutes,
Potado left to attend the wedding party being held at the barangay
hall.(TSN, November 4, 1996, pp. 2-5)

Dan Dangpals testimony was dispensed with, but the defense agreed to
the nature of the testimony he would have given, which tended to show
that sometime at about 8:00 PM on the fateful evening, while inside his
house, he heard successive gunshots, and when he went out of his house,
he saw the deceaseds house burning about 200 meters away. He heard
persons laughing and saw the light of a flashlight and persons moving
away from the burning house. He could not recognize any of them. (TSN,
February 24, 1997; Exhibit D, p. 8, Records)

Dominga Salvadors testimony tended to show that the appellant Gaffud,

Jr. was their neighbor. In the morning of May 10, 1994, she went to the
house of the appellant to see him about her husbands share in the
construction of the barangay hall, which was contracted to the
appellant. Gaffud, Jr. told her that he would go to her house that afternoon
to introduce his in-law Balbino Bravo to her husband. Thereafter, she
went home, and left again at around 11:00 AM, leaving behind her
husband Manuel Salvador and their daughter Analyn. Later that night, she
was at Natipunan, Quirino attending a seminar for hilot, (TSN, July 4,
1995, pp. 3-15). In her sinumpaang salaysay, offered in evidence as
Exhibit A, Dominga also related that she had earlier filed a complaint in
the barangay against the appellant and his brother for slaughtering her pig.

SPO2 Dominador Tabal was a police investigator who investigated the

killing of Manuel and Analyn Salvador. Thereat, he saw two dead bodies
hanging from a Melina tree. They were put there so that they would not
be reached by the dogs. He saw that one of the victims had a fractured
head, while the other had a wound on the side. Pictures of the victims
including the scene of the incident were taken by them. Among those
interviewed the appellant Gaffud, Jr. and his brother, (TSN, June 5, 1997,
pp. 2-7).

Dr. Teodomiro Hufanas testimony was also dispensed with, (p. 127,
Records) in view of the defense counsels admission of the contents of his
Autopsy Report on Manuel Salvador, (Exhibit C), which reads in pertinent
part:
FINDINGS

-Cremated charcoaled, about 3 ft. long, stomach and intestine (Large)

protruding from the abdomen.

-Presence of semi-burned rattan about 1 inch long about 1 cm. in diameter

on the burned hand.

-Presence of a peculiar hole from the thoracic cavity directed downward to

the body, probably gunshot wound.

CAUSE OF DEATH:

-CREMATION (Burned)

REMARKS: Cannot be identified if male or female

For the appellants defense, the defense presented the appellant

himself. His defense of alibi was corroborated by his wife Juanita Gaffud
and in-law Balbino Bravo.

Appellant denied the accusation leveled against him, and testified

that the approximate time of the burning of the victims house, he was at
home, entertaining his in-laws, Balbino Bravo and Rufina Bravo, who was
there for a visit. After eating dinner, he and Balbino Bravo talked. At
around 7:00 to 8:00 PM, he and Balbino Bravo saw a blaze coming from
 the other side of the Cagayan River, about 50 to 80 meters away from the
house of the Bravos. They did not mind the blaze, and instead went to
sleep. The next morning, they heard news about somebody being burned,
and because of this, he and Balbino Bravo hiked to the place of the
incident. Thats where he found that his pare Manuel Salvador and his
daughter were burned in their house. After seeing the dead bodies,
appellant went home. He went back later, and was even designated by the
Barangay Captain to guard the bodies of the deceased. Thereafter, he was
forced to evacuate his family from Nagtipunan, because the Ilongot tribe
was forcing him to testify against someone but he didnt want to. He was
told that something might happen to his family if he didnt leave,
(TSN, June 3, 2002).

The appellants defense was corroborated on its material points by

the testimony of his wife, Juanita Gaffud, and his in-law, Balbino Bravo,
both of whom testified that on May 10, 1994, the accused was at his
residence entertaining visiting Bravo spouses and stayed there the whole
night, (TSN January 31, 2002 and March 18, 2002).

Juanita Gaffud also testified that during the pendency of the trial,
she talked to Dominga Salvador about the settlement of the case and even
offered a certain amount for the said purpose, (TSN, March 10, 2002, p.
12).[3]

After trial, the RTC rendered its Decision finding accused-appellant guilty of two
(2) counts of murder, the dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, the Court finds
Bernardino Gaffud, Jr. GUILTY for two (2) counts of murder and hereby
sentences him as follows, to wit:

a) Death penalty - for the death of Manuel Salvador;

b) Another death penalty - for the death of Analyn Salvador;

c) To pay the legal heirs of the victims:

c-1) SEVENTY FIVE THOUSAND PESOS (P75,000.00) for

each count or a total of ONE HUNDRED FIFTY
THOUSAND PESOS (P150,000.00) as death indemnities;
 c-2) FIFTY THOUSAND PESOS (P50,000.00) for each count
or a total of ONE HUNDRED THOUSAND PESOS
(P100,000.00) as moral damages;

c-3) TWENTY FIVE THOUSAND PESOS (P25,000) for each

count or a total of FIFTY THOUSAND PESOS
(P50,000.00) as exemplary damages;

c-4) TEN THOUSAND PESOS (P10,000.00) as nominal

damages;

and

c-5) Costs.

xxxx

SO ORDERED.[4]

As the death penalty was imposed, the case was elevated to this Court for automatic
review. In his Appellants Brief,[5] accused-appellant argued that the RTC erred in: (i)
failing to rule and resolve whether or not conspiracy existed, as the information
charged him with conspiracy with two others in the commission of the crime; and
(ii) convicting him despite the fact that conspiracy was not proven, and also despite
the fact that there was no proof whatsoever as to what overt act he committed which
would constitute the crime of murder.

The case was transferred to the CA for appropriate action and disposition per
Resolution[6] of this Court dated August 24, 2004, in accordance with the ruling
in People v. Mateo.[7] In disposing of the assigned errors, the CA held that the lack
of discussion of conspiracy among accused-appellant and his anonymous co-accused
in the decision of the RTC was not antithetic to his conviction for the crime of
murder, since the charge that he was a principal performer in the killing of the
victims was spelled out in the Information[8] filed against him.[9] Moreover, in the
absence of conspiracy, each of the malefactors is liable only for the act committed
by him.[10] As to the sufficiency of the evidence presented by the prosecution, the
CA held that the circumstantial evidence in this case established accused-appellants
guilt beyond reasonable doubt.[11] Accordingly, the CA affirmed the Decision of the
RTC, finding accused-appellant guilty of the complex crime of double murder, with
the following modifications:
WHEREFORE, premises considered, the appeal is hereby DISMISSED,
although the decision of the lower court is hereby MODIFIED, in that:
The accused Bernardino Gaffud, Jr. is hereby found GUILTY of the
complex crime of double murder, and is hereby sentenced to the supreme
penalty of Death. He is also ordered to pay the legal heirs of the
victims: (1) P100,000.00 or P50,000.00 for each victim, as civil indemnity
for the death of the victims; (2) P100,000.00 or P50,000.00 for each
victim, as moral damages; and (3) P10,000.00 as nominal damages plus
costs.
SO ORDERED.[12]

Pursuant to Section 13, Rule 124 of the Rules of Court, as amended by A.M. No.
00-5-03-SC dated September 28, 2004, the case was elevated to this Court for
review.
On the first assigned error, we concur with the CA that the failure to prove
conspiracy in this case is not fatal.
The rule is that in the absence of evidence showing the direct participation of the
accused in the commission of the crime, conspiracy must be established by clear and
convincing evidence in order to convict the accused.[13] In the case at bar, however,
we hold that the direct participation of accused-appellant in the killing of the victims,
Manuel Salvador and Analyn Salvador, was established beyond doubt by the
evidence of the prosecution. Hence, a finding of conspiracy in this instance is not
essential for the conviction of accused-appellant.

On the second assigned error, we uphold the finding of both courts a quo that
the evidence proffered by the prosecution, although circumstantial in nature, leads
to the conclusion that accused-appellant is the perpetrator of the act resulting in the
death of the victims.

It is well-settled that circumstantial evidence is sufficient to sustain a conviction if

(i) there is more than one circumstance; (ii) the facts from which the inference is
derived are proven; and (iii) the combination of all circumstances is such as to
produce conviction beyond reasonable doubt.[14]
In this case, the following facts or circumstances were proven:

(i) Accused-appellant was near the place of the incident just a few
minutes before the crime was committed. Captain Potado Bollang
testified that he saw the accused-appellant at the riverbank, about 100
meters from the house of the victims, coming to and fro, allegedly looking
for his boat, when in fact, Captain Bollang knew that accused-appellant
did not own one.[15]

(ii) Accused-appellant, together with two unidentified persons, was near

the house of the victims at the time it was on fire. Accused-appellant
was identified by Orly Salvador as one of the three men he saw about 5
meters from the house of his uncle, Manuel Salvador, while it was
burning. Previously, he heard two gunshots as he was on his way towards
the said house. He also saw appellant fleeing with the other malefactors,
while holding a flashlight.[16] His testimony was corroborated by the
admitted testimony of Dan Dangpal who said that he heard two gunshots
while he was at his home, which was near that of the victims. When he
went out, he also heard men laughing, and saw them fleeing from the
burning house, illumined by a flashlight.[17]

(iii) Accused-appellant was in a hurry to leave the place of the incident

without giving any help to his kumpare Manuel Salvador and the
latters daughter, Analyn. Orly Salvador testified that he saw accused-
appellant holding a flashlight, in a hurry to leave the burning house of the
victim, going towards the direction of the river.[18]

(iv) Accused-appellant had a motive to kill the victims because of the

complaint filed by Manuel Salvadors wife, Dominga Salvador, and the
fact that he owed Manuel Salvador some money. Dominga Salvador
testified that she had filed a complaint against accused-appellant and his
brother in their barangay for their act of slaughtering her pig. Aside from
this, in the morning of the same fateful day, she went to the house of
accused-appellant aiming to collect her husbands share in the profits for
the construction of the barangay hall they had built, but the accused-
 appellant only told her that he and his in-law would see her husband later
that day.[19]

These circumstances, when taken together, are enough to produce the

conclusion that accused-appellant was responsible for the killing of the victims by
means of burning them inside their house.

Moreover, we sustain the following observation of the CA that against the

convincing evidence of the prosecution, accused-appellants defense of denial and
alibi must fail:
The Court finds incredible appellants story that after seeing the
blaze across his house, he merely slept with his in-laws without
investigating. The Court finds it against human nature for one to sleep
soundly during a fire occurring just 50-80 metes from ones house, even
though the blaze is occurring across a river. Also, appellant muse know,
after seeing the location of the blaze, that the house of his pare, or close
friend, was in danger, and his natural reaction at least was to verify the
object of the conflagration. Appellants story that he only slept soundly
after seeing the blaze is therefore unbelievable, and taints the credibility
of his alibi.

Another telling factor on the appellants defense is his flight. Appellant

admitted that in his testimony that he fled Wasid, Nagtipunan, Quirino
after he was investigated at the Municipal Hall, (TSN, June 3, 2002, p.
19).Appellant said he fled because of threats from the Ilongots. However,
appellant said it never entered his mind to report the threats on
him. Appellants explanation fails to convince. It bears stressing that
appellant fled right after being investigated and questioned by police
authorities, and during the time that the preliminary investigation of the
case was ongoing. This is highly suspicious, as such time is the best time
for him to defend his innocence, if he is indeed innocent. As it is, appellant
was arrested in San Vicente, Jones, Isabela, a remote barangay by the
elements of the NBI, (Id., at 23; reverse of p. 19, Records). Flight is
consistently held as and indication of guilt, (People v. Magaro, 291 SCRA
601 [1998]). There is no showing why such conclusion should not be
made in this case.[20]

We now go to whether or not accused-appellant should be held liable for two

(2) separate counts of murder or for the complex crime of double murder.
 Article 48 of the Revised Penal Code (RPC), as amended, reads:

ARTICLE 48. Penalty for complex crimes. When a single act constitutes
two or more grave or less grave felonies, or when an offense is a necessary
means for committing the other, the penalty for the most serious crime
shall be imposed, the same to be applied in its maximum period.

In a complex crime, although two or more crimes are actually committed, they
constitute only one crime in the eyes of the law as well as in the conscience of the
offender. Hence, there is only one penalty imposed for the commission of a complex
crime.[21]

There are two kinds of complex crime. The first is known as compound crime,
or when a single act constitutes two or more grave or less grave felonies. The second
is known as complex crime proper, or when an offense is a necessary means for
committing the other.[22]

The classic example of the first of kind is when a single bullet results in the
death of two or more persons. A different rule governs where separate and distinct
acts result in a number killed.Deeply rooted is the doctrine that when various victims
expire from separate shots, such acts constitute separate and distinct crimes.[23]

In the landmark case People v. Guillen,[24] the Court held that the single act
of throwing a grenade at President Roxas resulting in the death of another person
and injuring four others produced the complex crime of murder and multiple
attempted murders. Under Article 248 of the RPC, murder is committed when a
person is killed by means of explosion. Applying Article 48 of the RPC, the penalty
for the crime committed is death, the maximum penalty for murder, which is the
graver offense.

More recently, in People v. Carpo et al.,[25] we held that the single act of
hurling a grenade into the bedroom of the victims causing the death of three persons
and injuries to one person constituted the complex crime of multiple murder and
attempted murder. Also, in People v. Comadre,[26] we held:
 The underlying philosophy of complex crimes in the Revised Penal
Code, which follows the pro reo principle, is intended to favor the accused
by imposing a single penalty irrespective of the crimes committed. The
rationale being, that the accused who commits two crimes with single
criminal impulse demonstrates lesser perversity than when the crimes are
committed by different acts and several criminal resolutions.

The single act by appellant of detonating a hand grenade may

quantitatively constitute a cluster of several separate and distinct offenses,
yet these component criminal offenses should be considered only as a
single crime in law on which a single penalty is imposed because the
offender was impelled by a single criminal impulse which shows his lesser
degree of perversity.

In light of these precedents, we hold that the single act of accused-

appellant burning the house of Manuel Salvador, with the main objective of
killing the latter and his daughter, Analyn Salvador, resulting in their deaths
resulted in the complex crime of double murder. Under Article 248 of the RPC,
murder is committed by means of fire. Since the maximum penalty imposed for
murder was death, when the case was pending in the CA, the CA correctly imposed
the penalty of death for the complex crime of double murder instead of the two death
penalties imposed by the RTC for two counts of murder. In view, however, of the
passage of Republic Act No. 9346 (otherwise known as An Act Prohibiting the
Imposition of Death Penalty in the Philippines), we reduce the penalty of death
to reclusion perpetua with no eligibility for parole.[27]

Anent the award of damages, we increase the award of civil indemnity by the
CA for the death of the victims from P100,000 or P50,000 for each victim,
to P150,000 or P75,000 for each victim in accordance with prevailing
jurisprudence.[28]

As to the deletion of exemplary damages by the CA, we reinstate the award

by the RTC of exemplary damages in the amount of P50,000, or P25,000 for each
victim.

By and of itself, nighttime is not an aggravating circumstance. It becomes

aggravating only when: (1) it is especially sought by the offender; or (2) it is taken
advantage of by him; or (3) it facilitates the commission of the crime by ensuring
the offender's immunity from capture.[29] In this case, the RTC correctly appreciated
nighttime as aggravating considering that nighttime was especially sought by
accused-appellant to carry out his evil plan. Evidence shows that accused-appellant
waited for nighttime to consummate his plan. It should be noted that accused-
appellant was seen lurking near the house of the victims earlier in the evening. The
fact that he brought with him a flashlight clearly shows that he intended to commit
the crime in darkness.

We sustain the award by the CA of moral damages in the amount of P100,000,

or P50,000 for each victim, in view of the grief and sorrow suffered by the heirs of
the victims. We likewise affirm the award of nominal damages in the amount
of P10,000 for the value of the burned house as sufficiently explained by the RTC
and affirmed by the CA.

IN VIEW WHEREOF, we hereby AFFIRM the March 31, 2005 decision of

the CA in CA-G.R. CR-HC No. 00060 with the following MODIFICATIONS:

(1) the penalty of death imposed on accused-appellant is REDUCED

to reclusion perpetua without eligibility for parole;

(2) the civil indemnity for the death of the victims is increased to P150,000,
or P75,000 for each victim; and
(3) accused-appellant is ordered to pay exemplary damages in the amount
of P50,000, or P25,000 for each victim.

SO ORDERED.
 EN BANC

PEOPLE OF THE PHILIPPINES, G.R. No. 168050

Plaintiff-Appellee,
Present:
PUNO, C.J.
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.
BERNARDINO GAFFUD, JR., Promulgated:
Accused-Appellant. September 19, 2008

x------------------------------------------------x

DECISION

PUNO, C.J.:

For review before this Court is the Decision[1] of the Court of Appeals (CA)
dated March 31, 2005 in CA-G.R. CR-HC No. 00060 finding the
accused-appellant Bernardino Gaffud, Jr. guilty of the complex crime of double
murder and sentencing him to death, affirming with modification the Decision [2] of
the Regional Trial Court (RTC) dated August 28, 2002 in Criminal Case No. 1125.
The facts of this case were aptly summarized by the CA as follows:

Records show that accused-appellant Bernardino Gaffud, Jr., along with

two John Does were indicted for Double Murder for the killing of Manuel
Salvador and Analyn Salvador, under the following Information:

The undersigned 2nd Assistant Provincial Prosecutor accuses Bernardino

Gaffud, Jr. and two (2) JOHN DOES of the crime of DOUBLE MURDER
defined and penalized under Article 248 of the Revised Penal Code,
committed as follows:

That on or about 8:00 oclock in the evening of May 10, 1994 at Sitio Biton,
Barangay Wasid, Municipality of Nagtipunan, Province of Quirino,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused with intent to kill and motivated by long standing grudge,
after conspiring, confederating and mutually helping one another, by means
of fire, did then and there, willfully, unlawfully, and feloniously, shot and
burn Manuel Salvador and Analyn Salvador which caused their
instantaneous death.

CONTRARY TO LAW. (p. 15, Records)

It appears that Manuel Salvador and his daughter Analyn Salvador were
killed when the house they were staying in located at Sitio Biton,
Barangay Wasid, Nagtipunan, Quirino was burned down while they were
inside.An eyewitness pointed to accused-appellant Bernardino Gaffud, Jr.
as one of the arsonists.

Upon preliminary investigation, where appellant Gaffud, Jr. failed to

appear despite being subpoenaed to submit his counter-affidavit, Assistant
Provincial Prosecutor Ferdinand Orias resolved that charges for double
murder by means of fire be filed against herein appellant and two John
Does, (p.14, Records).

When arraigned on June 6, 1995, accused-appellant Gaffud, Jr. entered a

plea of Not Guilty, (p. 48, Records), paving the way for his trial.
The prosecution presented six (6) witnesses against appellant Gaffud, Jr.,
namely Dominga Salvador, common-law wife of Manuel Salvador and
mother of Analyn Salvador, Orly Salvador, nephew of Manuel Salvador,
Potado Ballang, Barangay Captain of Wasid, Nagtipunan, Quirino, Dan
Dangpal, a neighbor of the deceased, SPO2 Dominador Tabal, the
investigating police, and Dr. Teodomiro Hufana who conducted the
autopsy on the deceased Manuel Salvador.
Evidence for the prosecution tended to prove that on the night of May 10,
1994, Orly Salvador was on his way to the house of his uncle Manuel
Salvador to fetch the latter as they were going to attend a wedding at the
nearby barangay hall. He suddenly heard two gunshots. Thereafter, he
saw the house of his uncle burning. Because of the glow emanating
therefrom, he saw three persons within the vicinity of the burning
house. He saw them hurriedly leaving the place towards the direction of
the Cagayan river. One of the three was holding a flashlight, whom he
identified as appellant Gaffud, Jr. He could not identify the two other
persons. After the house was burned, Orly went towards the barangay hall
to see if his uncle Manuel Salvador was there, but he met Brangay Captain
Potado Ballang who informed him that his uncle was not at the barangay
hall. They then proceeded to the burned house, and found the charred
remains of Manuel Salvador and Analyn Salvador. (TSN, October 10,
1995, pp. 3-8)

Barangay Captain Potado Ballang testified that he saw appellant Gaffud,

Jr. on the fateful day at around 6:30 PM, along the riverbank, a few meters
away from the house of Manuel Salvador. When Potado asked what he
was doing there, Gaffud, Jr. said he was looking for his boat. However,
Potado knew that the appellant did not own a boat. After a few minutes,
Potado left to attend the wedding party being held at the barangay
hall.(TSN, November 4, 1996, pp. 2-5)

Dan Dangpals testimony was dispensed with, but the defense agreed to
the nature of the testimony he would have given, which tended to show
that sometime at about 8:00 PM on the fateful evening, while inside his
house, he heard successive gunshots, and when he went out of his house,
he saw the deceaseds house burning about 200 meters away. He heard
persons laughing and saw the light of a flashlight and persons moving
away from the burning house. He could not recognize any of them. (TSN,
February 24, 1997; Exhibit D, p. 8, Records)

Dominga Salvadors testimony tended to show that the appellant Gaffud,

Jr. was their neighbor. In the morning of May 10, 1994, she went to the
house of the appellant to see him about her husbands share in the
construction of the barangay hall, which was contracted to the
appellant. Gaffud, Jr. told her that he would go to her house that afternoon
to introduce his in-law Balbino Bravo to her husband. Thereafter, she
went home, and left again at around 11:00 AM, leaving behind her
husband Manuel Salvador and their daughter Analyn. Later that night, she
was at Natipunan, Quirino attending a seminar for hilot, (TSN, July 4,
1995, pp. 3-15). In her sinumpaang salaysay, offered in evidence as
Exhibit A, Dominga also related that she had earlier filed a complaint in
the barangay against the appellant and his brother for slaughtering her pig.

SPO2 Dominador Tabal was a police investigator who investigated the

killing of Manuel and Analyn Salvador. Thereat, he saw two dead bodies
hanging from a Melina tree. They were put there so that they would not
be reached by the dogs. He saw that one of the victims had a fractured
head, while the other had a wound on the side. Pictures of the victims
including the scene of the incident were taken by them. Among those
interviewed the appellant Gaffud, Jr. and his brother, (TSN, June 5, 1997,
pp. 2-7).

Dr. Teodomiro Hufanas testimony was also dispensed with, (p. 127,
Records) in view of the defense counsels admission of the contents of his
Autopsy Report on Manuel Salvador, (Exhibit C), which reads in pertinent
part:
FINDINGS

-Cremated charcoaled, about 3 ft. long, stomach and intestine (Large)

protruding from the abdomen.

-Presence of semi-burned rattan about 1 inch long about 1 cm. in diameter

on the burned hand.

-Presence of a peculiar hole from the thoracic cavity directed downward to

the body, probably gunshot wound.

CAUSE OF DEATH:

-CREMATION (Burned)

REMARKS: Cannot be identified if male or female

For the appellants defense, the defense presented the appellant

himself. His defense of alibi was corroborated by his wife Juanita Gaffud
and in-law Balbino Bravo.

Appellant denied the accusation leveled against him, and testified

that the approximate time of the burning of the victims house, he was at
home, entertaining his in-laws, Balbino Bravo and Rufina Bravo, who was
there for a visit. After eating dinner, he and Balbino Bravo talked. At
around 7:00 to 8:00 PM, he and Balbino Bravo saw a blaze coming from
 the other side of the Cagayan River, about 50 to 80 meters away from the
house of the Bravos. They did not mind the blaze, and instead went to
sleep. The next morning, they heard news about somebody being burned,
and because of this, he and Balbino Bravo hiked to the place of the
incident. Thats where he found that his pare Manuel Salvador and his
daughter were burned in their house. After seeing the dead bodies,
appellant went home. He went back later, and was even designated by the
Barangay Captain to guard the bodies of the deceased. Thereafter, he was
forced to evacuate his family from Nagtipunan, because the Ilongot tribe
was forcing him to testify against someone but he didnt want to. He was
told that something might happen to his family if he didnt leave,
(TSN, June 3, 2002).

The appellants defense was corroborated on its material points by

the testimony of his wife, Juanita Gaffud, and his in-law, Balbino Bravo,
both of whom testified that on May 10, 1994, the accused was at his
residence entertaining visiting Bravo spouses and stayed there the whole
night, (TSN January 31, 2002 and March 18, 2002).

Juanita Gaffud also testified that during the pendency of the trial,
she talked to Dominga Salvador about the settlement of the case and even
offered a certain amount for the said purpose, (TSN, March 10, 2002, p.
12).[3]

After trial, the RTC rendered its Decision finding accused-appellant guilty of two
(2) counts of murder, the dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, the Court finds
Bernardino Gaffud, Jr. GUILTY for two (2) counts of murder and hereby
sentences him as follows, to wit:

a) Death penalty - for the death of Manuel Salvador;

b) Another death penalty - for the death of Analyn Salvador;

c) To pay the legal heirs of the victims:

c-1) SEVENTY FIVE THOUSAND PESOS (P75,000.00) for

each count or a total of ONE HUNDRED FIFTY
THOUSAND PESOS (P150,000.00) as death indemnities;
 c-2) FIFTY THOUSAND PESOS (P50,000.00) for each count
or a total of ONE HUNDRED THOUSAND PESOS
(P100,000.00) as moral damages;

c-3) TWENTY FIVE THOUSAND PESOS (P25,000) for each

count or a total of FIFTY THOUSAND PESOS
(P50,000.00) as exemplary damages;

c-4) TEN THOUSAND PESOS (P10,000.00) as nominal

damages;

and

c-5) Costs.

xxxx

SO ORDERED.[4]

As the death penalty was imposed, the case was elevated to this Court for automatic
review. In his Appellants Brief,[5] accused-appellant argued that the RTC erred in: (i)
failing to rule and resolve whether or not conspiracy existed, as the information
charged him with conspiracy with two others in the commission of the crime; and
(ii) convicting him despite the fact that conspiracy was not proven, and also despite
the fact that there was no proof whatsoever as to what overt act he committed which
would constitute the crime of murder.

The case was transferred to the CA for appropriate action and disposition per
Resolution[6] of this Court dated August 24, 2004, in accordance with the ruling
in People v. Mateo.[7] In disposing of the assigned errors, the CA held that the lack
of discussion of conspiracy among accused-appellant and his anonymous co-accused
in the decision of the RTC was not antithetic to his conviction for the crime of
murder, since the charge that he was a principal performer in the killing of the
victims was spelled out in the Information[8] filed against him.[9] Moreover, in the
absence of conspiracy, each of the malefactors is liable only for the act committed
by him.[10] As to the sufficiency of the evidence presented by the prosecution, the
CA held that the circumstantial evidence in this case established accused-appellants
guilt beyond reasonable doubt.[11] Accordingly, the CA affirmed the Decision of the
RTC, finding accused-appellant guilty of the complex crime of double murder, with
the following modifications:
WHEREFORE, premises considered, the appeal is hereby DISMISSED,
although the decision of the lower court is hereby MODIFIED, in that:
The accused Bernardino Gaffud, Jr. is hereby found GUILTY of the
complex crime of double murder, and is hereby sentenced to the supreme
penalty of Death. He is also ordered to pay the legal heirs of the
victims: (1) P100,000.00 or P50,000.00 for each victim, as civil indemnity
for the death of the victims; (2) P100,000.00 or P50,000.00 for each
victim, as moral damages; and (3) P10,000.00 as nominal damages plus
costs.
SO ORDERED.[12]

Pursuant to Section 13, Rule 124 of the Rules of Court, as amended by A.M. No.
00-5-03-SC dated September 28, 2004, the case was elevated to this Court for
review.
On the first assigned error, we concur with the CA that the failure to prove
conspiracy in this case is not fatal.
The rule is that in the absence of evidence showing the direct participation of the
accused in the commission of the crime, conspiracy must be established by clear and
convincing evidence in order to convict the accused.[13] In the case at bar, however,
we hold that the direct participation of accused-appellant in the killing of the victims,
Manuel Salvador and Analyn Salvador, was established beyond doubt by the
evidence of the prosecution. Hence, a finding of conspiracy in this instance is not
essential for the conviction of accused-appellant.

On the second assigned error, we uphold the finding of both courts a quo that
the evidence proffered by the prosecution, although circumstantial in nature, leads
to the conclusion that accused-appellant is the perpetrator of the act resulting in the
death of the victims.

It is well-settled that circumstantial evidence is sufficient to sustain a conviction if

(i) there is more than one circumstance; (ii) the facts from which the inference is
derived are proven; and (iii) the combination of all circumstances is such as to
produce conviction beyond reasonable doubt.[14]
In this case, the following facts or circumstances were proven:

(i) Accused-appellant was near the place of the incident just a few
minutes before the crime was committed. Captain Potado Bollang
testified that he saw the accused-appellant at the riverbank, about 100
meters from the house of the victims, coming to and fro, allegedly looking
for his boat, when in fact, Captain Bollang knew that accused-appellant
did not own one.[15]

(ii) Accused-appellant, together with two unidentified persons, was near

the house of the victims at the time it was on fire. Accused-appellant
was identified by Orly Salvador as one of the three men he saw about 5
meters from the house of his uncle, Manuel Salvador, while it was
burning. Previously, he heard two gunshots as he was on his way towards
the said house. He also saw appellant fleeing with the other malefactors,
while holding a flashlight.[16] His testimony was corroborated by the
admitted testimony of Dan Dangpal who said that he heard two gunshots
while he was at his home, which was near that of the victims. When he
went out, he also heard men laughing, and saw them fleeing from the
burning house, illumined by a flashlight.[17]

(iii) Accused-appellant was in a hurry to leave the place of the incident

without giving any help to his kumpare Manuel Salvador and the
latters daughter, Analyn. Orly Salvador testified that he saw accused-
appellant holding a flashlight, in a hurry to leave the burning house of the
victim, going towards the direction of the river.[18]

(iv) Accused-appellant had a motive to kill the victims because of the

complaint filed by Manuel Salvadors wife, Dominga Salvador, and the
fact that he owed Manuel Salvador some money. Dominga Salvador
testified that she had filed a complaint against accused-appellant and his
brother in their barangay for their act of slaughtering her pig. Aside from
this, in the morning of the same fateful day, she went to the house of
accused-appellant aiming to collect her husbands share in the profits for
the construction of the barangay hall they had built, but the accused-
 appellant only told her that he and his in-law would see her husband later
that day.[19]

These circumstances, when taken together, are enough to produce the

conclusion that accused-appellant was responsible for the killing of the victims by
means of burning them inside their house.

Moreover, we sustain the following observation of the CA that against the

convincing evidence of the prosecution, accused-appellants defense of denial and
alibi must fail:
The Court finds incredible appellants story that after seeing the
blaze across his house, he merely slept with his in-laws without
investigating. The Court finds it against human nature for one to sleep
soundly during a fire occurring just 50-80 metes from ones house, even
though the blaze is occurring across a river. Also, appellant muse know,
after seeing the location of the blaze, that the house of his pare, or close
friend, was in danger, and his natural reaction at least was to verify the
object of the conflagration. Appellants story that he only slept soundly
after seeing the blaze is therefore unbelievable, and taints the credibility
of his alibi.

Another telling factor on the appellants defense is his flight. Appellant

admitted that in his testimony that he fled Wasid, Nagtipunan, Quirino
after he was investigated at the Municipal Hall, (TSN, June 3, 2002, p.
19).Appellant said he fled because of threats from the Ilongots. However,
appellant said it never entered his mind to report the threats on
him. Appellants explanation fails to convince. It bears stressing that
appellant fled right after being investigated and questioned by police
authorities, and during the time that the preliminary investigation of the
case was ongoing. This is highly suspicious, as such time is the best time
for him to defend his innocence, if he is indeed innocent. As it is, appellant
was arrested in San Vicente, Jones, Isabela, a remote barangay by the
elements of the NBI, (Id., at 23; reverse of p. 19, Records). Flight is
consistently held as and indication of guilt, (People v. Magaro, 291 SCRA
601 [1998]). There is no showing why such conclusion should not be
made in this case.[20]

We now go to whether or not accused-appellant should be held liable for two

(2) separate counts of murder or for the complex crime of double murder.
 Article 48 of the Revised Penal Code (RPC), as amended, reads:

ARTICLE 48. Penalty for complex crimes. When a single act constitutes
two or more grave or less grave felonies, or when an offense is a necessary
means for committing the other, the penalty for the most serious crime
shall be imposed, the same to be applied in its maximum period.

In a complex crime, although two or more crimes are actually committed, they
constitute only one crime in the eyes of the law as well as in the conscience of the
offender. Hence, there is only one penalty imposed for the commission of a complex
crime.[21]

There are two kinds of complex crime. The first is known as compound crime,
or when a single act constitutes two or more grave or less grave felonies. The second
is known as complex crime proper, or when an offense is a necessary means for
committing the other.[22]

The classic example of the first of kind is when a single bullet results in the
death of two or more persons. A different rule governs where separate and distinct
acts result in a number killed.Deeply rooted is the doctrine that when various victims
expire from separate shots, such acts constitute separate and distinct crimes.[23]

In the landmark case People v. Guillen,[24] the Court held that the single act
of throwing a grenade at President Roxas resulting in the death of another person
and injuring four others produced the complex crime of murder and multiple
attempted murders. Under Article 248 of the RPC, murder is committed when a
person is killed by means of explosion. Applying Article 48 of the RPC, the penalty
for the crime committed is death, the maximum penalty for murder, which is the
graver offense.

More recently, in People v. Carpo et al.,[25] we held that the single act of
hurling a grenade into the bedroom of the victims causing the death of three persons
and injuries to one person constituted the complex crime of multiple murder and
attempted murder. Also, in People v. Comadre,[26] we held:
 The underlying philosophy of complex crimes in the Revised Penal
Code, which follows the pro reo principle, is intended to favor the accused
by imposing a single penalty irrespective of the crimes committed. The
rationale being, that the accused who commits two crimes with single
criminal impulse demonstrates lesser perversity than when the crimes are
committed by different acts and several criminal resolutions.

The single act by appellant of detonating a hand grenade may

quantitatively constitute a cluster of several separate and distinct offenses,
yet these component criminal offenses should be considered only as a
single crime in law on which a single penalty is imposed because the
offender was impelled by a single criminal impulse which shows his lesser
degree of perversity.

In light of these precedents, we hold that the single act of accused-

appellant burning the house of Manuel Salvador, with the main objective of
killing the latter and his daughter, Analyn Salvador, resulting in their deaths
resulted in the complex crime of double murder. Under Article 248 of the RPC,
murder is committed by means of fire. Since the maximum penalty imposed for
murder was death, when the case was pending in the CA, the CA correctly imposed
the penalty of death for the complex crime of double murder instead of the two death
penalties imposed by the RTC for two counts of murder. In view, however, of the
passage of Republic Act No. 9346 (otherwise known as An Act Prohibiting the
Imposition of Death Penalty in the Philippines), we reduce the penalty of death
to reclusion perpetua with no eligibility for parole.[27]

Anent the award of damages, we increase the award of civil indemnity by the
CA for the death of the victims from P100,000 or P50,000 for each victim,
to P150,000 or P75,000 for each victim in accordance with prevailing
jurisprudence.[28]

As to the deletion of exemplary damages by the CA, we reinstate the award

by the RTC of exemplary damages in the amount of P50,000, or P25,000 for each
victim.

By and of itself, nighttime is not an aggravating circumstance. It becomes

aggravating only when: (1) it is especially sought by the offender; or (2) it is taken
advantage of by him; or (3) it facilitates the commission of the crime by ensuring
the offender's immunity from capture.[29] In this case, the RTC correctly appreciated
nighttime as aggravating considering that nighttime was especially sought by
accused-appellant to carry out his evil plan. Evidence shows that accused-appellant
waited for nighttime to consummate his plan. It should be noted that accused-
appellant was seen lurking near the house of the victims earlier in the evening. The
fact that he brought with him a flashlight clearly shows that he intended to commit
the crime in darkness.

We sustain the award by the CA of moral damages in the amount of P100,000,

or P50,000 for each victim, in view of the grief and sorrow suffered by the heirs of
the victims. We likewise affirm the award of nominal damages in the amount
of P10,000 for the value of the burned house as sufficiently explained by the RTC
and affirmed by the CA.

IN VIEW WHEREOF, we hereby AFFIRM the March 31, 2005 decision of

the CA in CA-G.R. CR-HC No. 00060 with the following MODIFICATIONS:

(1) the penalty of death imposed on accused-appellant is REDUCED

to reclusion perpetua without eligibility for parole;

(2) the civil indemnity for the death of the victims is increased to P150,000,
or P75,000 for each victim; and
(3) accused-appellant is ordered to pay exemplary damages in the amount
of P50,000, or P25,000 for each victim.

SO ORDERED.