Republic of the Philippines accidents that might occur, as unfortunately did occur, as his automobile ran over the
d occur, as his automobile ran over the boy
SUPREME COURT
Manila
EN BANC
G.R. No. 17584 March 8, 1922
THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellee,
vs.
GREGORIO SANTIAGO, defendant-appellant.
L. Porter Hamilton for appellant.
Acting Attorney-General Tuason for appellee.
ROMUALDEZ, J.:
Having caused the death of Porfirio Parondo, a boy 7 years old, by striking him with
automobile that he was driving, the herein appellant was prosecuted for the crime of
homicide by reckless negligence and was sentenced to suffer one year and one day
of prision correccional, and to pay the costs of the trial.
Not agreeable with that sentence he now comes to this court alleging that the court below
committed four errors, to wit:
1. The trial court erred in not taking judicial notice of the fact that the appellant
was being prosecuted in conformity with Act No. 2886 of the Philippine Legislature
and that the Act is unconstitutional and gave no jurisdiction in this case.
2. The lower court erred in not dismissing the complaint after the presentation of
the evidence in the case, if not before, for the reason that said Act No. 2886 is
unconstitutional and the proceedings had in the case under the provisions of the
Act constitute a prosecution of appellant without due process of law.
3. The court a quo erred in not finding that it lacked jurisdiction over the person of
the accused and over the subject- matter of the complaint.
4. The trial court erred in finding the appellant guilty of the crime charged and in
sentencing him to one year and one day of prison correccional and to the
payment of costs.
With regard to the questions of fact, we have to say that we have examined the record
and find that the conclusions of the trial judge, as contained in his well-written decision, are
sufficiently sustained by the evidence submitted.
The accused was driving an automobile at the rate of 30 miles an hour on a highway 6
meter wide, notwithstanding the fact that he had to pass a narrow space between a
wagon standing on one side of the road and a heap of stones on the other side where the
were two young boys, the appellant did not take the precaution required by the
circumstances by slowing his machine, and did not proceed with the vigilant care that
under the circumstances an ordinary prudent man would take in order to avoid possible
1
Porfirio Parondo who was instantly killed as the result of the accident.
These facts are so well established in the records that there cannot be a shade of doubt
about them.
Coming now to the other assignments of error, it will be seen that they deal with the
fundamental questions as to whether or not Act No. 2886, under which the complaint in the
present case was filed, is valid and constitutional.
This Act is attacked on account of the amendments that it introduces in General Orders No.
58, the defense arguing that the Philippine Legislature was, and is, not authorized to amend
General Orders No. 58, as it did by amending section 2 thereof because its provisions have
the character of constitutional law. Said section 2 provides as follows:
All prosecutions for public offenses shall be in the name of the United States
against the persons charged with the offenses. (G. O. No. 58, sec. 2 ).
Act No. 2886, which amends it, by virtue of which the People of the Philippine Island is
made the plaintiff in this information, contains the following provisions in section 1:
SECTION 1. Section two of General Orders, Numbered Fifty-eight, series of nineteen
hundred, is hereby amended to read as follows:
"SEC. 2. All prosecutions for public offenses shall be in the name of the
People of the Philippine Islands against the persons charged with the
offense."
Let us examine the question.
For practical reasons, the procedure in criminal matters is not incorporated in the
Constitutions of the States, but is left in the hand of the legislatures, so that it falls within the
realm of public statutory law.
As has been said by Chief Justice Marshall:
A constitution, to contain an accurate detail of all the Subdivisions of which its
great powers will admit, and of all the means by which they may be carried into
execution, would partake of a prolixity of a legal code, and could scarcely be
embraced by the human mind. It would probably never be understood by the
public. (M'Culloch vs. Maryland [1819], 4 Wheat., 316, 407; 4 L. ed., 579.)
That is why, in pursuance of the Constitution of the United States, each States, each State
has the authority, under its police power, to define and punish crimes and to lay down the
rules of criminal procedure.
The states, as a part of their police power, have a large measure of discretion in
creating and defining criminal offenses. . . .
A Statute relating to criminal procedure is void as a denial of the equal protection
of the laws if it prescribes a different procedure in the case of persons in like
situation. Subject to this limitation, however, the legislature has large measure of
 discretion in prescribing the modes of criminal procedure. . . . (12 C.J., 1185, 1186.
See Collins vs. Johnston, 237 U.S., 502; 35 s. Ct. Rep. 649; 59 L. ed., 1071; Shevlin-
Carpenter Co. vs. Minnesota, 218 U.S., 57; 30 S. Ct. Rep., 663; 54 L. ed., 930; Lynn
vs. Flancders, 141 Ga., 500; 81 S.E., 205.)
This power of the States of the North American Union was also granted to its territories such
as the Philippines:
The plenary legislative power which Congress possesses over the territories and
possessions of the United States may be exercised by that body itself, or, as is
much more often the case, it may be delegated to a local agency, such as a
legislature, the organization of which proceeds upon much the same lines as in
the several States or in Congress, which is often taken as a model, and whose
powers are limited by the Organic Act; but within the scope of such act is has
complete authority to legislate, . . . and in general, to legislate upon all subjects
within the police power of the territory. (38 Cyc., 205-207.)
The powers of the territorial legislatures are derived from Congress. By act of
Congress their power extends "to all rightful subjects of legislation not inconsistent
with the Constitution and laws of the United States;" and this includes the power to
define and punish crimes. (16 C. J., 62.)
And in the exercise of such powers the military government of the army of occupation,
functioning as a territorial legislature, thought it convenient to establish new rules of
procedure in criminal matters, by the issuance of General Orders No. 58, the preamble of
which reads:
In the interests of justice, and to safeguard the civil liberties of the inhabitants of
these Islands, the criminal code of procedure now in force therein is hereby
amended in certain of its important provisions, as indicated in the following
enumerated sections. (Emphasis ours.)
Its main purpose is, therefore, limited to criminal procedure and its intention is to give to its
provisions the effect of law in criminal matters. For that reason it provides in section 1 that:
The following provisions shall have the force and effect of law in criminal matters in
the Philippine Islands from and after the 15th day of May, 1900, but existing laws
on the same subjects shall remain valid except in so far as hereinafter modified or
repealed expressly or by necessary implication.
From what has been said it clearly follows that the provisions of this General Order do not
the nature of constitutional law either by reason of its character or by reason of the
authority that enacted it into law.
It cannot be said that it has acquired this character because this order was made its own
by the Congress of the United States for, as a mater of fact, this body never adopted it as a
2
law of its own creation either before the promulgation of Act No. 2886, herein discussed, or,
to our knowledge, to this date.
Since the provisions of this General Order have the character of statutory law, the power of
the Legislature to amend it is self-evident, even if the question is considered only on
principle. Our present Legislature, which has enacted Act No. 2886, the subject of our
inquiry, is the legal successor to the Military Government as a legislative body.
Since the advent of the American sovereignty in the Philippines the legislative branch of our
government has undergone transformations and has developed itself until it attained its
present form. Firstly, it was the Military Government of the army of occupation which, in
accordance with international law and practice, was vested with legislative functions and
in fact did legislate; afterwards, complying with the instructions of President McKinley which
later were ratified by Congress (sec. 1 of the Act of July 1, 1902) the legislative powers of
the Military Government were transferred to the Philippine Commission; then, under the
provisions of section 7 of the Act of Congress of July 1, 1902, the Philippine Assembly was
created and it functioned as a colegislative body with the Philippine Commission. Finally,
by virtue of the provisions of sections 12 of the Act of Congress of August 29, 1916, known as
the Jones Law, the Philippine Commission gave way to the Philippine Senate, the Philippine
Assembly became the House of Representatives, and thus was formed the present
Legislature composed of two Houses which has enacted the aforesaid Act No. 2886.
As a matter of fact, Act No. 2886 is not the first law that amends General Orders No. 58. The
Philippine Commission, at various times, had amended it by the enactment of laws among
which we may cite Act No. 194, regarding preliminary investigation, Act No. 440 relating to
counsels de oficio and Act No. 590 about preliminary investigations by justices of the peace
of provincial capitals. Later on, and before the enactment of Act No. 2886, herein
controverted, the Legislature had also amended this General Orders No. 58 by the
enactment of Act No. 2677 regarding appeals to the Supreme Court of causes originating
in the justice of the peace courts and by Act No. 2709 which deals with the exclusion of
accused persons from the information in order to be utilized as state's witnesses.
These amendments repeatedly made by the Philippine Commission as well as by our
present Legislature are perfectly within the scope of the powers of the said legislative
bodies as the successors of the Military Government that promulgated General Orders No.
58.
No proof is required to demonstrate that the present Legislature had, and had, the power
to enact and amend laws. (U.S. vs. Bull. 15 Phil., 7.) That it has the power to legislate on
criminal matters is very evident from the wording of section 7 of the Jones Law which says:
That the legislative authority herein provided shall have power, when not
inconsistent with this Act, by due enactment to amend, alter, modify, or repeal
 any law, civil or criminal, continued in force by this Act as it may from time to time
see fit.
It is urged the right to prosecute and punish crimes is an attributed of sovereignty. This
assertion is right; but it is also true that by reason of the principle of territoriality as applied in
the supression, of crimes, such power is delegated to subordinate government subdivisions
such as territories. As we have seen in the beginning, the territorial legislatures have the
power to define and punish crimes, a power also possessed by the Philippine Legislature by
virtue of the provisions of sections 7, already quoted, of the Jones Law. These territorial
governments are local agencies of the Federal Government, wherein sovereignty resides;
and when the territorial government of the Philippines prosecutes and punishes public
crimes it does so by virtue of the authority delegated to it by the supreme power of the
Nation.
This delegation may be made either expressly as in the case of the several States of the
Union and incorporated territories like Porto Rico and Hawaii, or tacitly as is the case with
the Philippines, which is an organized territory though not incorporated with the Union.
(Malcolm, Philippine Constitutional Law, 181-205.)
This tacit delegation to our Government needs no demonstration. As a matter of fact, the
crimes committed within our territory, even before section 2 of General Orders No. 58 was
amended, were prosecuted and punished in this jurisdiction as is done at present; but then
as now the repression of crimes was done, and is still done, under the sovereign authority of
the United States, whose name appears as the heading in all pleadings in criminal causes
and in other judicial papers and notarial acts.
The use of such a heading is prescribed for civil cases in form 1 of section 784 of the Code
of Civil Procedure; in criminal causes the constant practice followed in this jurisdiction
established its use; and in notarial matters its use is provided by section 127 of Act No. 496.
This long continued practice in criminal matters and the legal provision relating to civil
cases and notarial acts have not been amended by any law, much less by Act No. 2886,
the subject of the present inquiry.
There is not a single constitutional provision applicable to the Philippines prescribing the
name to be used as party plaintiff in criminal cases.
The fact that the political status of this country is as yet undetermined and in a transitory
stage, is, in our opinion, responsible for the fact that there is no positive provision in our
constitutional law regarding the use of the name of the People of the Philippine Islands, as
party plaintiff, in criminal prosecutions, as is otherwise the case in the respective
constitutional charters of the States of the Union and incorporated territories — a situation
which must not be understood as depriving the Government of the Philippines of its power,
however delegated, to prosecute public crimes. The fact is undeniable that the present
3
government of the Philippines, created by the Congress of the United States, is
autonomous.
This autonomy of the Government of the Philippines reaches all judicial actions, the case at
bar being one of them; as an example of such autonomy, this Government, the same as
that of Hawaii and Porto Rico (People of Porto Rico vs. Rosaly y Castillo [1913], 227 U.S., 270;
57 L. ed., 507; 33 Sup. Ct. Rep., 352) cannot be sued without its consent. (Merritt vs.
Government of the Philippine Islands, 34 Phil., 311; L. S. Moon & Co. vs. Harrison, p. 27, ante.)
The doctrine, laid down in these cases, acknowledges the prerogative of personality in the
Government of the Philippines, which, if it is sufficient to shield it from any responsibility in
court in its own name unless it consents thereto, it should be also, as sufficiently authoritative
in law, to give that government the right to prosecute in court in its own name whomsoever
violates within its territory the penal laws in force therein.
However, limiting ourselves to the question relative to the form of the complaint in criminal
matters, it is within the power of the Legislature to prescribe the form of the criminal
complaint as long as the constitutional provision of the accused to be informed of the
nature of the accusation is not violated.
Under the Constitution of the United States and by like provisions in the
constitutions of the various states, the accused is entitled to be informed of the
nature and cause of the accusation against him . . .
It is within the power of the legislatures under such a constitutional provision to
prescribe the form of the indictment or information, and such form may omit
averments regarded as necessary at common law. (22 Cyc., 285.)
All these considerations a priori are strengthened a posteriori by the important reason
disclosed by the following fact — that the Congress has tacitly approved Act No. 2886.
Both the Act of Congress of July 1, 1902, section 86, and the Jones Law, last paragraph of
section 19, provide that all the laws enacted by the Government of the Philippines or its
Legislature shall be forwarded to the Congress of the United States, which body reserves
the right and power to annul them. And presuming, as legally we must, that the provisions
of these laws have been complied with, it is undisputed that the Congress of the United
States did not annul any of those acts already adverted to — Nos. 194, 440, 490 (of the
Philippine Commission), and 2677, 2709 and the one now in question No. 2886 (of the
present Legislature) — all of which were amendatory of General Orders No. 58. The Act
now under discussion (No. 2886) took effect on February 24, 1920, and the criminal
complaint in this case was filed on May 10, 1920. The silence of Congress regarding those
laws amendatory of the said General Order must be considered as an act of approval.
If Congress fails to notice or take action on any territorial legislation the
reasonable inference is that it approves such act. (26 R.C.L., 679; vide Clinton vs.
 Englebrcht, 13 Wall., 434; 20 [L. ed.] 659; Tiaco vs. Forbes, 228 U.S., 549; 33 S. Ct.
Rep., 585; 57 [L. ed.], 960; Nixon vs. Reid, 8 S.d., 507; 67 N.W., 57; 32 L.R.A., 315.)
Furthermore, supposing for the sake of argument, that the mention of the People of the
Philippine Islands as plaintiff in the title of the information constitutes a vice or defect, the
same is not fatal when, as in the present case, it was not objected to in the court below.
An indictment must, in many states under express statutory or constitutional
provision, show by its title or by proper recitals in the caption or elsewhere that the
prosecution is in the name and by the authority of the state, the commonwealth,
or the people of the state, according to the practice in the particular jurisdictions;
but omissions or defects in this respect may be supplied or cured by other parts of
the records, and the omissions of such a recital or defects therein, even when
required by the constitution or by statute, is a defect of form within a statute
requiring exceptions for defect of form to be made before trial. (23 Cyc., 237,
238.)
We hold that the provisions of sections 2 of General Orders No. 58, as amended by Act No.
2886, do not partake of the same character as the provisions of a constitution; that the said
Act No. 2886 is valid and is not violative of any constitutional provisions and that the court a
quo did not commit any of the errors assigned.
The sentence appealed from is hereby affirmed, the appellant being furthermore
sentenced to the accessory penalties prescribed in article 61 of the Penal Code, and to
indemnify the heirs of the deceased in the sum of P1,000 and to the payment of the costs
of both instances. So ordered.
Araullo, C.J., Street, Malcolm, Avanceña and Villamor, JJ., concur.
Ostrand and Johns, JJ., concur in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11676 October 17, 1916
THE UNITED STATES, plaintiff-appellee,
vs.
ANDRES PABLO, defendant-appellant.
Alfonso E. Mendoza for appellant.
Attorney-General Avanceña for appellee.
TORRES, J.:
4
At about noon of the 21st of October, 1915, Andres Pablo, a policeman of the municipality
of Balanga, went by order of his chief to the barrio of Tuyo to raid a jueteng game which,
according to the information lodged, was being conducted in that place; but before the
said officer arrived there the players, perhaps advised of his approach by a spy, left and
ran away; however, on his arrival at a vacant lot the defendant there found Francisco Dato
and, at a short distance away, a low table. After a search of the premises he also found
thereon a tambiolo (receptacle) and 37 bolas (balls). Notwithstanding that the officer had
seen the men Maximo Malicsi and Antonio Rodrigo leave the said lot, yet, as at first he had
seen no material proof that the game was being played, he refrained from arresting them,
and on leaving the place only arrested Francisco Daro, who had remained there.
In reporting to his chief what had occurred, the policeman presented a memorandum
containing the following statement: "In the barrio of Tuyo I raided a jueteng na bilat game,
seized a tambiolo and bolas, and saw the cabecillas Maximo MAlicsi and Antonio Rodrigo
and the gambler Francisco Dato. I saw the two cabecillas escape."
In consequence, chief of police Jose D. Reyes, on October 22, 1915, filed a complaint in
the court of justice of the peace charging the said Rodrigo, Malicsi, and Dato with having
gambled at jueteng, in violation of municipal ordinance No. 5. As a result of this complaint
the accused were arrested, but were afterwards admitted to bail.
At the hearing of the case Francisco Dato pleaded guilty. The other two accused, Maximo
Malicsi and Antonio Rodrigo, pleaded not guilty; therefore, during the trial the chief of
police presented the memorandum exhibited by the policeman Andres Pablo, who
testified under oath that on the date mentioned he and Tomas de Leon went to the said
barrio to raid a jueteng game, but that before they arrived there they saw from afar that
some persons started to run toward the hills; that when witness and his companion arrived
at a vacant lot they saw Francisco Dato and a low table there, and the table caused them
to suspect that a jueteng game was being carried on; that in fact they did find on one side
of the lot a tambiolo and 37 bolas, but that they did not see the accused Rodrigo and
Malicsi on the said lot, nor did they see them run; and that only afterwards did the witness
learn that these latter were the cabecillas or ringleaders in the jueteng game, from
information given him by an unknown person. In view of this testimony by the police officer
who made the arrest and of the other evidence adduced at the trial the court acquitted
the defendants Antonio Rodrigo and Maximo Malicsi and sentenced only Francisco Dato,
as a gambler.
Before the case came to trial in the justice of the peace court the policeman Andres Pablo
had an interview and conference with the accused Malicsi and ROdrigo in the house of
Valentin Sioson. On this occasion he was instructed not to testify against Malicsi and
Rodrigo, and in fact received through Gregorio Ganzon the sum of P5.
By reason of the foregoing and after making a preliminary investigation the provincial fiscal,
on December 1, 1915, filed an information in the Court of First Instance of Bataan charging
Andres Pablo with the crime of perjury, under the provisions of section 3 of Act No. 1697. The
following is an extract from the complaint:
That on or about November 6, 1915, in the municipality of Balanga, Bataan, P.I.,
and within the jurisdiction of this court, the said accused, Andres Pablo, during the
hearing in the justice of the peace court of Balanga of the criminal cause No. 787,
entitled the United States vs. Antonio Rodrigo and Maximo Malicsi, for violation of
Municipal Ordinance No. 5 of the municipality of Balanga, did, willfully, unlawfully
and feloniously affirm and swear in legal form before the justice of the peace
court as follow: `We did not there overtake the accused Antonio Rodrigo and
Maximo Malicsi, nor did we even see them run,' the said statement being utterly
false, as the accused well knew that it was, and material to the decision of the
said criminal cause No. 787, United States vs. Antonio Rodrigo and Maximo
Malicsi. An act committed with violation of law.
The case came to trial and on December 28, 1915, the court rendered judgment therein
sentencing the defendant to the penalty of two years' imprisonment, to pay a fine of P100
and, in case of insolvency, to the corresponding subsidiary imprisonment, and to pay the
costs. The defendant was also disqualified from thereafter holding any public office and
from testifying in the courts of the Philippine Islands until the said disqualification should be
removed. From this judgment he appealed.
Francisco Dato, on testifying as a witness, said that when the policemen Andres Pablo and
Tomas de Leon arrived at the place where the jueteng was being played, they found the
defendant gamblers, Malicsi and Rodrigo; that, prior to the hearing of the case in the
justice of the peace court, Malicsi and Rodrigo ordered him to call Andres Pablo, who,
together with witness, went to the house of Valentin Sioson, where they held a conference;
that witness pleaded guilty in the justice of the peace court, in fulfillment of his part of an
agreement made between himself and his two coaccused, Malicsi and Rodrigo, who
promised him that they would support his family during the time he might be a prisoner in
jail; that Andres Pablo did not know that they were gamblers, because he did not find them
in the place where the game was in progress, but that when witness was being taken to the
municipal building by the policemen he told them who the gamblers were who had run
away and whom Andres Pablo could have seen.
Maximo Malicsi corroborated the foregoing testimony and further stated that, on the arrival
of the policemen who made the arrest and while they were looking for the tambiolo, he
succeeded in escaping; that Andres Pablo had known him for a long time and could have
arrested him had he wished to do so; that prior to the hearing he and his codefendants,
ROdrigo and Dato, did in fact meet in the house of Valentin Sioson, on which occasion they
5
agreed that they would give the policemen Andres Pablo P20, provided witness and
Rodrigo were excluded from the charge; and that only P15 was delivered to the said Pablo,
through Gregorio Ganzon. This statement was corroborated by the latter, though he said
nothing about what amount of money he delivered to the policeman Pablo.
The defendant Andres Pablo testified under oath that, on his being asked by the justice of
the peace how he could have seen Maximo Malicsi and Antonio Rodrigo, he replied that
he did not see them at the place where the game was being conducted nor did he see
them run away from there, for he only found the table, the tambiolo, the bolas, and
Francisco Dato; that he did not surprise the game because the players ran away before he
arrived on the lot where, after fifteen minutes' search, he found only the tambiolo and
the bolas; that on arriving at the place where the game was played, they found only
Francisco Dato and some women in the Street, and as Dato had already gone away,
witness' companion, the policeman Tomas de Leon, got on his bicycle and went after him;
and that he found the tambiolo at a distance of about 6 meters from a low table standing
on the lot.
From the facts above related, it is concluded that the defendant Andres Pablo, who
pleaded not guilty, falsely testified under oath in the justice of the peace court of Balanga,
Bataan, in saying he had not seen the alleged gamblers Maximo Malicsi and Antonio
Rodrigo in the place where, according to the complaint filed, the game of jueteng was
being played and where the defendant and his companion, the policeman Tomas de
Leon, had found a table, tambiolo and bolas, used in the game of jueteng, while it was
proved at the trial that he did not them and did overtake them while they were still in the
place where the game was being played. But notwithstanding his having seen them there,
upon testifying in the cause prosecuted against these men and another for gambling, he
stated that he had not seen them there, knowing that he was not telling the truth and was
false to the oath he had taken, and he did so willfully and deliberately on account of his
agreement with the men, Malicsi and Rodrigo, and in consideration of a bribe of P15 which
he had received in payment for his false testimony he afterwards gave.
Francisco Dato and Gregorio Ganzon corroborated the assertion that the policeman
Andres Pablo undertook to exclude the gamblers, Malicsi and Rodrigo, from the charge
and from his testimony in consideration for P15 which he received through Gregorio
Ganzon.
Andres Pablo was charged with the crime of perjury and was afterwards convicted under
Act No. 1697, which (according to the principle laid down by this court in various decisions
that are already well-settled rules of law) repealed the provisions contained in articles 318
to 324 of the Penal Code relative to false testimony.
By the second paragraph of the final section of the last article of the Administrative Code,
or Act No. 2657, there was repealed, among the other statutes therein mentioned, the said
Act No. 1697 relating to perjury, and the repealing clause of the said Administrative Code
does not say under what other penal law in force the crime of false testimony, at least, if
not that of perjury, shall be punished.
Under these circumstances, may the crime of perjury or of false testimony go unpunished,
and is there no penal sanction whatever in this country for this crime? May the truth be
freely perverted in testimony given under oath and which, for the very reason that it may
save a guilty person from punishment, may also result in the conviction and punishment of
an innocent person? If all this is not possible and is not right before the law and good morals
in a society of even mediocre culture, it must be acknowledged that it is imperatively
necessary to punish the crime of perjury or of false testimony — a crime which can produce
incalculable and far-reaching harm to society and cause infinite disturbance of social
order.
The right of prosecution and punishment for a crime is one of the attributes that by a
natural law belongs to the sovereign power instinctively charged by the common will of the
members of society to look after, guard and defend the interests of the community, the
individual and social rights and the liberties of every citizen and the guaranty of the
exercise of his rights.
The power to punish evildoers has never been attacked or challenged, as the necessity for
its existence has been recognized even by the most backward peoples. At times the
criticism has been made that certain penalties are cruel, barbarous, and atrocious; at
other, that they are light and inadequate to the nature and gravity of the offense, but the
imposition of punishment is admitted to be just by the whole human race, and even
barbarians and savages themselves, who are ignorant of all civilization, are no
exception.lawphil.net
Notwithstanding that the said Act No. 1697 (which, as interpreted by this court in its
decisions, was deemed to have repealed the aforementioned article of the Penal Code
relating to false testimony, comprised within the term of perjury) did not expressly repeal the
said articles of the Penal Code; and as the said final article of the Administrative Code, in
totally repealing Act No. 1697, does not explicitly provide that the mentioned articles of the
Penal Code are also repealed, the will of the legislation not being expressly and clearly
stated with respect to the complete or partial repeal of the said articles of the Penal Code,
in the manner that it has totally repealed the said Act No. 1697 relating its perjury; and,
furthermore, as it is imperative that society punish those of its members who are guilty of
perjury or false testimony, and it cannot be conceived that these crimes should go
unpunished or be freely committed without punishment of any kind, it must be conceded
that there must be in this country some prior, preexistent law that punishes perjury or false
testimony.
6
There certainly are laws which deal with perjury or false testimony, like Law 7 et seq. of Title
2, third Partida.
However, since the Penal Code went into force, the crime of false testimony has been
punished under the said articles of the said Code, which as we have already said, have not
been specifically repealed by the said Act No. 1697, but since its enactment, have not
been applied, by the mere interpretation given to them by this court in its decisions; yet,
from the moment that Act was repealed by the Administrative Code, the needs of society
have made it necessary that the said articles 318 to 324 should be deemed to be in force,
inasmuch as the Administrative Code, in repealing the said Act relating to perjury, has not
explicitly provided that the said articles of the Penal Code have likewise been repealed.
This manner of understanding and construing the statutes applicable to the crime of false
testimony or perjury is in harmony with the provision of Law 11, Title 2, Book 3, of
the Novisima Recopilacion which says::
All the laws of the kingdom, not expressly repealed by other subsequent laws,
must be literally obeyed and the excuse that they are not in use cannot avail; for
the Catholic kings and their successors so ordered in numerous laws, and so also
have I ordered on different occasions, and even though they were repealed, it is
seen that they have been revived by the decree which I issued in conformity with
them although they were not expressly designated. The council will be informed
thereof and will take account of the importance of the matter.
It is, then, assumed that the said articles of the Penal Code are in force and are properly
applicable to crimes of false testimony. Therefore, in consideration of the fact that in the
case at bar the evidence shows it to have been duly proven that the defendant, Andres
Pablo, in testifying in the cause prosecuted for gambling at jueteng, perverted the truth, for
the purpose of favoring the alleged gamblers, Maximo Malicsi and Antonio Rodrigo, with
the aggravating circumstance of the crime being committed through bribery, for it was
also proved that the defendant Pablo received P15 in order that he should make no
mention of the said two gamblers in his sworn testimony, whereby he knowingly perverted
the truth, we hold that, in the commission of the crime of false testimony, there concurred
the aggravating circumstance of price or reward, No. 3 of article 10 of the Code, with no
mitigating circumstance to offset the effects of the said aggravating one; wherefore the
defendant has incurred the maximum period of the penalty of arresto mayor in its
maximum degree to prision correccional in its medium degree, and a fine.
For the foregoing reasons, we hereby reverse the judgment appealed from and sentence
Andres Pablo to the penalty of two years four months and one day of prision
correccional, to pay a fine of 1,000 pesetas, and, in case of insolvency, to suffer the
corresponding subsidiary imprisonment, which shall not exceed one-third of the principal
penalty. He shall also pay the costs of both instances. So ordered.
Johnson, Carson, Trent and Araullo, JJ., concur.
Moreland, J., concurs in the result .
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44 September 13, 1945
LILY RAQUIZA, ET AL., petitioners,
vs.
LT. COL. L.J. BRADFORD, ET AL., respondents.
Guillermo B. Guevarra for petitioners.
J.A. Wolfson for respondents.
HILADO, J.:
Alleging in their petition for a writ of habeas corpus, dated August 30, 1945, that they have
been and are being "confined, restrained and deprived" of their liberty in the Correctional
Institution for Women, petitioners, Lily Raquiza, Haydee Tee Han Kee and Emma Link Infante,
pray that the officers therein named, to wit, Lt. Col. L.J. Bradford and Capt. Inez L. Twindle
of the CIC, U.S. Army, "or whoever acts in her place or stead," be directed to appear before
this Court and produce the bodies of petitioners, and to show cause why petitioners should
not forthwith be set at liberty.
Respondent Lt. Col., Bradford, having been served with this Court's order to show cause
dated August 31, 1945, made return thereto dated September 5, 1945, to which are
attached as parts thereof certain commitment orders marked Schedules A, A-1 and A-2,
the first and last emanating from the Headquarters of the Sixth Army, 306th Counter
Intelligence Corps Detachment, and the second from that of the United States Army Forces
in the Far East, 493rd Counter Intelligence Corps Detachment.
Respondent Captain Caroline De Eason, WAC, having been served with this Court's order
to show cause dated September 7, 1945, made return thereto dated on the same day,
incorporating therein by reference Schedules A, A-1 and A-2 of her co-respondents' return
above mentioned.
It appears from these returns, as well as from the arguments of counsel, that by virtue of the
proclamation issued by General of the Army MacArthur on December 29, 1944, petitioner
Lily Raquiza was on March 13, 1945, arrested by the 306th Counter Intelligence Corps
Detachment of the U.S. Sixth Army, and detained under Security Commitment Order No.
385 (Schedule A), wherein she was charged as follows:
Commitment Order. — The person named and described above is deemed a risk
to the security of the U.S. Forces for the reasons set forth above. The commanding
officer of any military stockade, jail, or comparable installation in which this person
7
may be confined is authorized and directed to detain him in custody until
released by competent military authority.
In said Schedule A the specific complaint or charge against complaint or charge against
petitioner Lily Raquiza is "Espionage activity for Japanese."
As to petitioner Haydee Tee Han Kee, it appears that by virtue of the aforesaid
proclamation she, on February 25, 1945, was arrested by the same 306th Counter
Intelligence Corps Detachment, and detained under Security Commitment Order No. 286
(Schedule A-2) wherein the Commitment Order is in exactly the same terms as in Schedule
A. The specific complaint or charge against petitioner Tee Han Kee in Schedule A-2 is
"Active collaboration with the enemy."
With regard to petitioner Emma Link Infante, it appears that by virtue of the same
proclamation she, on April 10, 1945, was arrested by the 493rd Counter Intelligence Corps
Detachment of the United States Army Forces in the Far East, and detained under
Commitment of that date (Schedule A-1), wherein she was charged with "Active
collaboration with the Japanese." Her previous association with the enemy constitutes a
present security risk to the United States Armed Forces.
The said proclamation reads:
GENERAL HEADQUARTERS
SOUTHWEST PACIFIC AREA
PROCLAMATION
PROVIDING FOR MILITARY MEASURES TO BE TAKEN UPON THE APPREHENSION OF
CITIZENS OF THE PHILIPPINES WHO VOLUNTARILY HAVE GIVEN AID, COMFORT AND
SUSTENANCE TO THE ENEMY.
WHEREAS evidence is before me that certain citizens of the Philippines voluntarily
have given aid, comfort and sustenance to the enemy in violation of allegiance
due the Governments of the United States and the Commonwealth of the
Philippines; and
WHEREAS military necessity requires that such persons be enemy in violation of
allegiance due the Governments of the United States and the Commonwealth of
the Philippines; and
NOW, THEREFORE, I, Douglas MacArthur, General of the Army, United States Army,
as Commander-in-Chief Southwest Pacific Area, hereby do publish and declare it
to be my purpose to remove such persons, when apprehended, from any position
of political and economic influence in the Philippines and to hold them in restraint
for the duration of the war; whereafter I shall release them to the Philippine
Government for its judgment upon their respective cases.
Done at General Headquarters, Southwest Pacific Area, in the field, this twenty-
ninth day of December, 1944.
 If it be alleged that, notwithstanding the insurrection, there were no actual
DOUGLAS MACARTHUR
hostilities in Nueva Ecija at the times above mentioned, the answer is that the
General of the Army
condition of hostility remained impressed on the whole island until it was removed
United States Army
by the proclamation of the President. . . .
Commander-in-Chief
War, in the legal sense, continues until, and terminates at the time of, some formal
Of course, the power of the Commander in Chief of the United States Army to issue the
proclamation of peace by an authority competent to proclaim it. It is the
foregoing proclamation cannot be seriously questioned. It has not been questioned in this
province of the political department, and not of the judicial department, of
case. Where opinions are divided as to its interpretation and effects.
government to determine when war is at an end. . . . (67 C.J., 429, sec. 195.)
General of the Army MacArthur therein published and declared it to be his purpose,
And even if the war had terminated, we are of opinion that under the aforesaid
among other things, to hold in restraint the persons referred to, when apprehended, "for the
proclamation the petitioners, who are held in restraint thereunder, would continue legally
duration of the war; whereafter, I shall release them to the Philippine Government for its
under custody of the proper military authorities of General of the Army MacArthur's or his
judgment upon their respective cases." He premised his proclamation upon two grave
successors' command, for a reasonable time after termination of the war.
reasons, to wit, (1) that evidence was before him "that certain citizens of the Philippines
If General of the Army MacArthur had, in express terms, declared in his aforesaid
voluntarily have given aid, comfort and sustenance to the enemy in violation of allegiance
proclamation that after termination of the war he will release the persons therein named to
due the Government of the United States and the Commonwealth of the Philippines;" and
the Philippine Government within a reasonable time, we think that he could have done so
(2) that "military necessity requires that such persons be removed from any opportunity to
within his legitimate powers as Commander in Chief of the United States Army; and not only
threaten the security of our military forces or the success of our military operations."
this, but that for obvious reasons he should be the best and, therefore, the only judge of
In the very nature of things, the Commander in Chief of the Army of liberation at the time of
how long or how short that time should be under the circumstances. And in order to give his
issuing that proclamation had to act upon the evidence then before him. The exigencies of
proclamation a reasonable construction, we are of opinion that this should be implied from
the mighty military operations that he had then but recently begun for the destruction or
the context. Otherwise, we would be giving to this solemn document the irrational
defeat of the powerful enemy who was at that time occupying the Islands, did not permit
interpretation that said Commander in Chief thereby announced a purpose which would
of any other procedure. And to deny him the exclusive power and competency to
be physically impossible for him to carry out; namely, to make delivery to the Philippine
determine the strength and sufficiency of such evidence would have been destructive of
Government immediately upon termination of the war of persons under restraint whose
that military efficieny with which, in the interest of all the citizens of the Philippines
number he could not then foresee but which he could reasonably expect to be more or
themselves, not excluding the herein petitioners, the operations for their liberation had to
less considerable, with their respective charges and pertinent evidence, papers, and the
be conducted. And once having apprehended the persons to whom the proclamation
like. It was not a matter of delivering a certain quantity or amount of personal property but
referred, the same exigencies required that the said Commander in Chief be invested with
human beings who although under custody, had to be properly housed, maintained and
the exclusive power and authority to decide when he should deliver them to the
otherwise treated as becoming the "dignity of the human person," which is one of the
Commonwealth of the Philippines.
cardinal principles of democracy for which the United Nations have fought in this war.
Has the war terminated within the meaning of that part of his proclamation wherein the
The fact that, as this Court can take judicial notice of, delivery of certain persons under
Commander in Chief declared his purpose to hold such persons in restraint "for the duration
custody of the United States Army pursuant to the said proclamation has already begun
of the war"? We are of opinion that it has not.
does not mean that the war has, in the legal sense, already terminated, which it clearly has
In the case of United States vs. Tubig (3 Phil., 244, 254), this Court said:
not. Such delivery is undoubtedly within the power of the proper military authorities to make
From that day the fighting continued, and the insurrection did not end officially
even before the termination of the war. The existence of the military necessity to which
until the President proclaimed it an end, July 4, 1902. It is necessary to refer to a
General of the Army MacArthur refers in his proclamation, as well as its continuance, is a
public act of the Executive Department to fix the date of the closing of the war.
question exclusively for the military authorities to determine, as regards each and every
(Freeborn vs. The Protector, 79 U.S., 700.)
person under detention. For obvious reasons, the civil courts should not here interfere, and it
is to be presumed that in the judgment of said military authorities that necessity no longer

8
requires the detention by them of the persons whom they have already delivered to the
Philippine Government.
In the case of Coleman vs. Tennessee (97 U.S., 509), the Supreme Court of the United States,
among other things, said:
It is well settled that a foreign army, permitted to march through a friendly country
or to be stationed in it, by permission of its government or sovereign, is exempt
from the civil and the criminal jurisdiction of the place. The sovereign is
understood, said this court in the celebrated case of The Exchange, 7 Cranch,
139, to cede a portion of his territorial jurisdiction when he allows the troops of a
foreign prince to pass through his dominions: "In such case, without any express
declaration waiving jurisdiction over the army to which this right of passage has
been granted, it would certainly be considered as violating his faith. By exercising
it, the purpose for which the free passage was granted would be defeated, and a
portion of the military force of a foreign independent nation would be diverted
from those national objects and duties to which it was applicable, and would be
withdrawn from the control of the sovereign whose power and whose safety might
greatly depend on retaining the exclusive command and disposition of this force.
The grant of a free passage, therefore, implies a waiver of all jurisdiction over the
troops during their passage, and permits the foreign general to use that discipline
and to inflict those punishments which the government of this army may require."
(Emphasis ours.)
In the case of the United States Army of liberation, not only has the Commonwealth
Government asked, and the United States Government agreed, that it come and be
stationed in the Philippines, but it is here for the very realization of the overruling and
vehement desire and dream of the Filipino to be freed from the shackles of Japanese
tyranny, and to see this was brought to a victorious end. If a foreign army permitted to be
stationed in a friendly country, "by permission of its government or sovereign," is exempt
from the civil and criminal jurisdiction of the place, with much more reason should the Army
of the United States which is not only permitted by the Commonwealth Government to be
stationed here but has come to the islands and stayed in them for the express purpose of
liberating them, and further prosecuting the war to a successful conclusion, be exempt
from the civil and criminal jurisdiction of this place, at least for the time covered by said
agreement of the two Governments. By analogy, an attempt of our civil courts to exercise
jurisdiction over the United States Army before such period expires, would be considered as
a violation of this country's faith, which this Court should not be the last to keep and uphold.
By exercising it, paraphrasing the foregoing quotation, the purpose for which the stationing
of the army in the islands was requested or agreed upon may be hampered or prejudiced,
and a portion of said military force would be withdrawn from the control of the sovereign to
9
whom they belong. And, again, by analogy, the agreement, for the stationing of the United
States Army or a part of its forces in the Philippines implies as a waiver of all jurisdiction over
their troops during the time covered by such agreement, and permits the allied general or
commander in chief to retain that exclusive control and discipline which the government of
his army may require.
Chief Justice Marshall, in the case of the Schooner Exchange (7 Cranch, 139), gave the
reasons underlying the doctrine of mutual waiver of jurisdiction between nations in the
following paragraphs:
The world being composed of distinct sovereignties, possessing equal rights and
equal independence, whose mutual benefit is promoted by intercourse with each
other, and by an interchange of those good offices which humanity dictates and
its wants require, all sovereigns have consented to a relaxation in practice, in
cases under certain peculiar circumstances, of that absolute and complete
jurisdiction within their respective territories which sovereignty confers.
xxx xxx xxx
This perfect equality and absolute independence of sovereigns, and this common
interest impelling them to mutual intercourse, and interchange of good offices
with each other, have given rise to a class of cases in which every sovereign is
understood to waive the exercise of a part of that complete exclusive territorial
jurisdiction, which has been stated to be the attribute of every nation.
Furthermore, we are of the opinion that the present petitioners, while under the custody of
the United States military forces, may be considered as prisoners of war. In volume II, Hydee
International Law, page 345, section 676, we read:
. . . It should be borne in mind that an army in the field, in the course of any
operation in any locality . . . may also avail itself, of the right to make civilians
prisoners of war.
The author cites from the Rules of Land Warfare which contain an enumeration of civilians
who may be made prisoners of war. This enumeration includes:
(c) Persons whose services are of a particular use and benefit to the hostile army
or its government, such as the higher civil officials, diplomatic
agents, couriers, guides, etc. . . . (Emphasis ours.)
We think that the petitioners would prima facie come within this classification under the
charges of "Espionage activity for Japanese," "Active collaboration with the Japanese,"
and "Active collaboration with the enemy."
We are not unmindful of the fact that the detention of the petitioners may have subjected
them to hardships, but this situation is one of those born of all wars where hardships of all
description are visited upon even the most innocent people. At any rate, we do not think
that the petitioners are totally without remedy. We think they may have recourse to the
proper military authorities by making due representation to them.
These military authorities, we can safely presume, will not deny to the petitioners any
remedy which may be available under the military laws and under the prevailing
circumstances. The United States army forces which have come to the Philippines for the
express purpose of liberating the Filipinos and to restore them the blessings of liberty under a
democratic government, just as fast as the military situation would permit, would not be —
we can justly assume — the very ones to take from them any of those liberties without legal
reason or justification. But the present state of the world is such that military exigencies or
military necessity may, under certain circumstances, still require some limitation on the
restoration or enjoyment of those liberties. The present case is, in our opinion, one such
situation.
Whether the doctrine here laid down would be applicable to cases arising in time of
peace, we do not decide.
In conclusion, we hold that the petition should be dismissed. No special pronouncement as
to costs. So ordered.
Moran, C. J., Jaranilla, Feria, De Joya and Pablo, JJ., concur.
Separate Opinions
OZAETA, J., dissenting:
We dissent from the majority opinion which sanctions the long-continued deprivation of the
petitioners of their sacred liberty without due process of law.
The petitioners, Lily Raquiza, Haydee Tee Han Kee, and Emma Link Infante, were arrested by
an agent of the Counter Intelligence Corps (CIC) of the United States Army on March 13,
1945, February 25, 1945, and April 10, 1945, respectively, and have since then been
confined in the custody of the respondents. The returns filed by the respondents herein
simply say that the petitioners were arrested and being detained by virtue of the
proclamation issued by General MacArthur on December 29, 1944, which reads as follows:
WHEREAS evidence is before me that certain citizens of the Philippines voluntarily
have given aid, comfort and sustenance to the enemy in violation of allegiance
due the Governments of the United States and the Commonwealth of the
Philippines; and
WHEREAS military necessity requires that such persons be removed from any
opportunity to threaten the security of our military forces or the success of our
military operations;
NOW, THEREFORE, I, Douglas MacArthur, General of the Army United States Army,
as Commander-in-Chief Southwest Pacific Area, hereby do publish and declare it
10
to be my purpose to remove such persons, when apprehended, from any position
of political and economic influence in the Philippines and to hold them in restraint
for the duration of the war; whereafter I shall release them to the Philippine
Government for its judgment upon their respective cases.
Done at General Headquarters, Southwest Pacific Area, in the field, this twenty-
ninth day of December, 1944. (41 Off Gaz., 148, 149.)
Attached to the returns as Schedules A, A-1, and A-2 are copies of confidential security
commitment orders which shows: as to the petitioner Lily Raquiza, "Complaint: Espionage
activity for Japanese;" as to the petitioner Emma Link Infante, "Remarks: Active
collaboration with the Japanese;" and as to the petitioner Haydee Tee Han Kee,
"Complaint: Active collaboration with the enemy."
Up to this date the petitioners have not been informed of the nature of the accusation
against them, no complaint or information charging them with any specific offense has
been filed against them in any court or tribunal, and they have never been given a
summary hearing. They have not been turned over to the Philippine Government for its
judgment upon their respective cases, and no allegation or intimation is made in the returns
as to whether and when the respondents will release the petitioners to the Philippine
Government.
The petitioners now invoke from this Court the writ of habeas corpus to recover the precious
liberty of which they have long been and are still being deprived. The important question
before us is whether this Court has jurisdiction or legal power to afford relief to the
petitioners in the sad and sorry plight to which they have been and are being subjected. Six
members of the Court voted for the negative and three for the affirmative.
Our affirmative and dissenting vote is based on the following considerations:
The guaranty of due process of law found in the Fifth Amendment of the Constitution of the
United States, which declares "that no person shall be deprived of life, liberty, or property
without due process of law," is incorporated in section 1, Article III of the Constitution of the
Philippines, which we have solemnly sworn to support and defend.
"The essential elements of due process of law are notice and an opportunity to be heard
and to defend in an orderly proceeding adapted to the nature of the case before a
tribunal having jurisdiction of the cause. One of the most famous and perhaps the most
often quoted definition of due process of law is that of Daniel Webster in his argument in
the Dartmouth College Case, in which he declared that by due process of law is meant 'a
law which hears before it condemns; which proceeds upon inquiry, and renders judgment
only after trial.' Somewhat similar is the statement that it is a rule as old as the law that no
one shall be personally bound until he has been duly cited to appear and has been
afforded an opportunity to be heard. Judgment without such citation and opportunity
lacks all the attributes of a judicial determination; it is judicial usurpation and oppression
and can never be upheld where justice is fairly administered." (12 Am. Jur., Const. Law, sec.
573.)
The right to due process of law is more than a prerogative. It is an immanent and
inalienable right of every man, woman, and child living under a government of laws. It
cannot be dispensed with or brushed aside either in time of war or in time of space. In time
of war martial law may be declared. But even under martial law appropriate tribunals such
as courts-martial are set up to hear and decide the case before anybody can be
punished.
General MacArthur's proclamation of December 29, 1944, says that "evidence is before me
that certain citizens of the Philippines voluntarily have given aid, comfort and sustenance to
the enemy in violation of allegiance due the governments of the United States and the
Commonwealth of the Philippines;" that "military necessity requires that such persons be
removed from an opportunity to threaten the security of our military forces or the success of
our military operations;" and that it was his purpose "to remove such persons, when
apprehended, from any position of political and economic influence in the Philippines and
to hold them in restraint for the duration of the war; whereafter, I shall release them to the
Philippine Government for its judgment upon their respective cases."
If that proclamation was meant to be a sentence pronounced by General MacArthur
against certain specific persons who, when apprehended, were to be held in restraint for
the duration of the war, such sentence did not constitute, or was totally devoid of, due
process of law because those persons had not been heard before they were condemned;
the evidence before him, whatever it was, must have been taken at the back and without
the knowledge of said persons, everyone of whom, under the Bill of Rights, to the protection
of which every person living under the American flag is entitled, had "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 and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses in his behalf." Such sentence,
moreover, is void on its face because the persons condemned were not named therein, so
that anybody whom the agents of the Army might apprehend could be held thereunder
for the duration of the war; and even if the persons condemned had been named, the
proclamation could not be upheld because, in so far as it purports to pronounce judgment
of treason on "certain citizens" who have not been tried in the courts, it partakes of the
nature of a bill of attainder which is likewise prescribed by the Bill of Rights. If that
proclamation was promulgated and intended as a military law or order whereby those who
had committed treason might be apprehended and held in restraint for the duration of the
war, then the persons affected should have been accused and tried by a military tribunal
before they were consigned to imprisonment for the duration of the war. Otherwise, how
could it have been legally and justly determined that the accused fell within the purview of
11
the proclamation — that they had voluntarily given aid, comfort, and sustenance to the
enemy? In either case there was failure of the indispensable requisites of due process of
law.
We take for granted the military necessity that gave rise to General MacArthur's
proclamation — the Court is not competent to inquire into it. But we understand that
military necessity to an army of liberation like that of General MacArthur was not intended
to override law and justice as regards the lives and liberties of the citizens of the country
being liberated; and law and justice required that no accused be condemned without
hearing. Even the most notorious war criminals of Germany and Japan who are publicly
known to have committed horrible, inhuman atrocities during the war have to be accused
before and tried by duly consisted tribunals before punishment can be meted out to them.
To be held in restraint for the duration of the war was in itself a punishment. It may,
parenthetically, be observed here that the petitioners and thousands of other Filipino
citizens held in restraint for the duration of the war by virtue of the proclamation in question
have suffered that punishment with fortitude and abnegation. While the war was in
progress they refrained from questioning the legality of the drastic military measure taken
by General MacArthur in order not to place any obstacle to his titanic task of driving the
enemy out of their country. The Filipino people's gratitude to General MacArthur for their
liberation from the clutches of their Japanese oppressors was so great that they did not
mind the hardship suffered by them in connection with his prosecution of the war — even
the restraint of the liberties of thousands of them for the duration of the war.
But now that the enemy has surrendered and the war is over, no one can blame the
petitioners for knocking at the portals of justice and demanding their inalienable right not to
be further deprived of their liberty without due process of law. The majority opinion turns a
deaf ear to their pathetic supplication on the supposition that the war is not yet over, for
the final treaty of peace between the belligerents has not yet been signed and the
Congress of the United States has not yet proclaimed the termination of the war, and that
therefore the military necessity to hold the petitioners in restraint still subsists, for which
reason the Court has no jurisdiction to order the respondents to discharge them from
custody. We cannot yield to such supine attitude. It disregards "fundamental human rights"
and "the dignity and worth of the human person" for which this global war has been fought
and won. (See Charter of United Nations.)
We have shown that with or without war the petitioners are entitled to due process of law,
and that without due process of law their confinement by the respondents is illegal. Section
1 of Rule 102 of the Rules of Court provides that "the writ of habeas corpus shall extend to all
cases of illegal confinement or detention by which any person is deprived of his liberty. . . ."
Section 2 of the same Rule provides that "writ of habeas corpus may be granted by the
Supreme Court, or any member thereof, on any day and at any time, . . . in the instances
authorized by law, and if so granted it shall be enforceable anywhere in the Philippines. . . ."
It is true that section 529 of Act No. 190, as amended by Acts Nos. 272 and 421, provided,
among other things, that it shall be a conclusive answer to a writ of habeas corpus against
a military officer or soldier, and sufficient excuse for not producing the prisoner in all other
organized provinces than those therein named, if the commanding general or any general
officer in command of the department or district shall certify that the prisoner is held by him
as a prisoner of war. But when section 529 of the Code of Civil Procedure was reenacted as
section 4 of Rule 102 of the Rules of Court, that provision was omitted and therefore
impliedly abrogated.
The only exceptions, then, to the application of the writ of habeas corpus are those now
found in section 4 of Rule 102, namely: (1) if the person alleged to be restrained of his liberty
is in the custody of an officer under process issued by a court or judge, or by virtue of a
judgment or order of a court of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order; (2) the case of a person charged
with or convicted of an offense in the Philippines or in any part of the United States, and
who ought to be delivered up to the executive power of the United States, or of any State
or territory thereof; and (3) the case of a person suffering imprisonment under lawful
judgment. The case of the petitioners herein does not fall under any of these exceptions.
The majority are of the opinion that the Court has no jurisdiction over the respondents as
members of the United States Army. We do not share that opinion. General MacArthur
himself, on the occasion of the restoration of the Commonwealth Government on February
27, 1945, addressed to the President of the Philippines the following eloquent words:
. . . God has indeed blessed our arms! The girded and unleashed power of
America supported by our Allies turned the tide of battle in the Pacific and
resulted in an unbroken series of crushing defeats upon the enemy culminating in
the redemption of your soil and the liberation of your people. My country has kept
the faith!
These soldiers have come here as an army of free men, dedicated, with your
people, to the cause of human liberty and committed to the task of destroying
those evil forces that have sought to suppress it by brutality of the sword. An army
of free men that has brought your people once again under democracy's
banner, to rededicate their churches, long desecrated, to the glory of God and
public worship; to reopen their schools to liberal education; to till the soil and reap
its harvest without fear of confiscation; to reestablish their industries that they may
again enjoy the profit from the sweat of their own toil, and to restore the sanctity
and happiness of their homes unafraid of violent intrusion.
12
Thus to millions of your now liberated people comes the opportunity to pledge
themselves — their hearts, their minds, and their hands — to the task of building a
new and stronger nation — a nation consecrated in the blood nobly shed that this
day might be — a nation dedicated to making imperishable those sacred liberties
for which we have fought and many have died.
On behalf of my Government I now solemnly declare, Mr. President, the full
powers and responsibilities under the Constitution restored to the Commonwealth
whose seat is here reestablished as provided by law.
Your country thus is again at liberty to pursue its destiny to an honored position in
the family of free nations. Your capital city, cruelly punished though it be, has
regained its rightful place — Citadel of democracy in the East. (41 Off. Gaz., 86,
87.)
Thus General MacArthur himself, as Commander in Chief of the United States, Army in this
area and as the representative of the Government of the United states, declared the full
powers and responsibilities under the Constitution restored of the Commonwealth. This
Court functions under by virtue of the Constitution. As the highest court of the land it is the
bulwark of civil rights and individual liberties. It is its inescapable duty to apply the law no
matter on whom it falls. It would be an astonishing manifestation of judicial timidity for the
Court to hesitate to subject any person or class of persons to its mandate in a proper case
for fear of lack of physical power to enforce it.
It is the undying glory of our democratic form of government implanted here in America
herself, that no man living under it is above the law. General McArthur himself as the
peerless defender of democracy, would be the first to recognize this fundamental principle,
and his "army of free men, dedicated, with your people, to the cause of human liberty,"
cannot but graciously obey the law as interpreted by the courts. We know of no law which
places members of the army beyond the power and jurisdiction of the civil courts in matters
affecting civil rights. In the instant case, the fact that in due time the respondents filed their
returns to the order of this Court to show cause is a positive acknowledgment by them of
the Court's jurisdiction over their persons.
The majority are not satisfied with the spontaneous recognition by the respondents
themselves of the Court's jurisdiction over their persons. To justify their stand the majority
opinion cites and applies the rule of the international law mentioned in the case
of Coleman vs. Tennesse (97 U.S., 509; 24 Law ed., 1118), to the effect that a foreign army,
permitted to march through a friendly country or to be stationed in it, by permission of its
government or sovereign, is exempt from the civil and criminal jurisdiction of the place. The
case cited has no applicability whatsoever to the case at bar. It appears in that case that
Coleman, while a regular soldier in the military service of the United States, committed the
crime of murder on March 7 1865, in the State of Tennesse and was convicted by a general
court-martial regularly convened for his trial at Knoxville, Tennesse, and sentenced to death
by hanging. Pending the execution of that sentence Coleman was indicted in the Criminal
Court for the District of Knox Country, Tennesse, on the 2d of October, 1874, for the same
murder. Under that indictment he was tried and convicted and sentenced to death, and
on appeal to the Supreme Court of the State the judgment was affirmed. Pending the
appeal to the State Supreme Court, the defendant was brought before the Circuit Court of
the United States for the Eastern District of Tennesse on habeas corpus, upon a petition
stating that he was unlawfully restrained of his liberty and imprisoned by the sheriff of Knox
County, upon the charge of murder, for which he had been indicted, tried, and convicted
by the general court-martial. The question brought before the Supreme Court of the United
States was whether the Criminal Court of the State of Tennessee had jurisdiction to try the
case.
The Supreme Court of the United States declared that the judgment and conviction in the
Criminal Court should have been set aside and the indictment quashed for want of
jurisdiction. It held that the State of Tennessee, at the time the crime was committed
therein, was an enemy territory under the military occupation of the United States and that
the military tribunals had exclusive jurisdiction to try and punish offenses of every grade
committed by persons in the military in the military service. The court said that "officers and
soldiers of the armies of the Union were not subject during the war to the laws of the
enemy, or amenable to his tribunals for offenses committed by them. They were
answerable only to their own government, and only by its laws, as enforced by its armies,
could they be punished." The court then mentioned the rule of international law quoted in
the majority opinion and argued as follows: "If an army marching through a friendly country
would thus be exempt from its civil and criminal jurisdiction, a fortiori would an army
invading an enemy's country be exempt?" Thus it is clear that the rule of international law
above mentioned formed no part of the holding of the court in the said case.
Neither can such rule of international law of itself be applicable to the relation between the
Philippines and the United States, for the reason that the former is still under the sovereignty
of the latter. The United States Army is not foreign to the Philippines. It is here not by
permission or invitation of the Philippine Government but by right of sovereignty of the
United States over the Philippines. It has the same right to be here as it has to be in Hawaii
or California. The United States has the same obligation to defend and protect the
Philippines, as it has to defend and protect Hawaii or California, from foreign invasion. The
citizens of the Philippines owe the same allegiance to the United States of America as the
citizens of any territory or the State of the Union.
If instead of the Philippines California had been invaded by Japan, and General MacArthur
had issued the same proclamation in question against certain citizens of that State, we do
not doubt, from our knowledge of the American people and their tradition and
13
jurisprudence, that any of such citizens apprehended and confined by virtue of said
proclamation without due process of law would have been set at liberty by any competent
court there through the issuance of the writ of habeas corpus. If, as seems to us
indisputable, a citizen of the Philippines is entitled to the protection of the same Bill of Rights,
particularly as regards due process of law, as any citizen of the United States, one would be
at a loss to understand why under the same facts and circumstances the latter would be
entitled to his liberty and the former not.
Our Habeas corpus Law is of American origin. It is substantially the same law that reigns in
very State of the Union. If it can be successfully invoked from the courts there under a given
set of facts, there is no reason why it cannot be invoked from the courts here under the
same circumstances. The Philippine courts are vested with the same power and jurisdiction
to grant the writ as the American courts.
The case at bar is not like the Coleman case wherein a member of the United States army
of occupation was indicted by the enemy state for a crime committed against a citizen of
the latter after he had been tried and convicted by a proper court-martial. This is a case
wherein nationals of the United States living under the protection of the army of the United
States are being deprived of their liberty by members of that Army without due process of
law, and wherein no conflict of jurisdiction between the military court and the civil court is
involved. In fact, no military court is claiming jurisdiction over the persons of the petitioners.
And yet while sympathizing with the petitioner this court, by the majority opinion, declares
itself impotent to grant them any relief, and suggests that "they may have recourse to the
proper military authorities by making due representations to them" — the very same military
authorities who have long been and are depriving them of their liberty without due process
of law. That is tantamount to throwing a meritorious case out of court on the ground that
the plaintiff may seek his remedy from the defendant himself by making due
representations to him. One might wonder what the court is good for.
Another reason given to support the judgment is that while under the custody of the United
States military forces the petitioners may be considered as prisoners of war, citing Hydee on
International Law to the effect that an army in the field in the course of any operation in
any locality, may also avail itself of the right to make civilians prisoners of war, such for
example as of "persons whose services are of a particular use and benefit to the hostile
army or its government, such as higher civil officials, diplomatic agents, couriers, guides,
etc." We do not dispute that rule of international law; but again, we think it has no
application to the case before us. That rule evidently refers to civilians of the enemy country
of whom the hostile army operating in that country may make prisoners of war. The
Philippines is not an enemy of the United States, whose army came here to liberate this
country and not to conquer or invade it. Under the rule cited, as we understand it, the
United States Army could not make prisoners of war of Japanese civilians. It could not make
prisoners of war of Filipinos any more than it could make them of Americans. Of course, if
the petitioners were Japanese subjects who were held as prisoners of war by the United
States Army, no one in his right mind would contend that this court should entertain a
petition for habeas corpus from them. But that is clearly not the case, and with all due
respect we think the citation of the rule to support the majority opinion is out of place here.
In the case of Payomo vs. Floyd (42 Phil., 788), it appears that one Calixto Mendigorin, a
civilian resident of Subic, Zambales, was arrested by a naval officer and arraigned and
sentenced by the naval reservation police judge for violation of the laws and regulations
which prohibited the cutting of timber on the naval reservation without a permit from the
proper officer. Upon petition for habeas corpus originally filed in this court by Juliana
Payomo in behalf of Mendigorin, this court, speaking through Mr. Justice Street, held that
the Supreme Court and the Courts of First Instance of the Philippines Islands have jurisdiction
to entertain a petition for the writ of habeas corpus to set at liberty a civilian person who is
alleged to have been detained by the naval authorities of the United States; that in this
respect said courts have the same authority as the Federal courts in the United States; and
that the naval authorities of the United States have no authority to establish a tribunal in the
Olongapo Reservation with jurisdiction to try and sentence civilian persons for offenses
committed on said reservation in violation of the penal laws enacted by the Philippine
Legislature. The prisoner was ordered released.
The refusal of this court now to exercise similar jurisdiction over the respondents herein
because they are members of the United States Army constitutes, in our opinion, a reversal
of or a retrogression from the sound and the liberal doctrine laid down by this same court in
that case.
We think it is idle to discuss whether the war has terminated as a matter of law or has ended
as a matter of fact. In his proclamation of December 29,1944, General MacArthur
announced that after the war he would release the prisoners to the Philippine Government,
and the fact that the CIC has partially turned over said prisoners to the Philippine
Government shows that they themselves recognized that the war has ended within the
purview of said proclamation.
The war having ended as a matter of fact with the unconditional surrender of Japan
formalized on September 2, 1945, the petitioners, who have been deprived of their liberty
without due process of law since they were arrested five or six months ago, are
peremptorily entitled now to that due process. Due process will not commence for them
until and unless they are turned over by the CIC to the Commonwealth Government.
Respondents not having intimated in their returns whether and when they will release the
petitioners to the Philippine Government, the court has no alternative but to order their
immediate discharge.
Paras, J., concurs.
14
PERFECTO, J., dissenting:
The petitioners complain that they are being illegally detained and pray that they be set at
liberty without delay.
They allege that they had been taken from their respective residence in the City of Manila
by certain individuals posing themselves as agents of the Counter Intelligence Corps (CIC),
Lily Raquiza on March 13, 1945; Haydee Tee Han Kee on February 25, 1945; and Emma Link
Infante on April 10, 1945; and since then had been restrained and deprived of their liberty in
the Correctional Institution for Women in Mandaluyong.
They allege also that no formal complaint or accusation for any specific, offense had been
filed against them, nor any judicial writ or order for their commitment has at any time been
issued so far, and that they did not commit, either individually or collectively, any offense
for which they may be arrested or deprived of their liberty without any formal charge or
judicial warrant, and that, according to reliable information, they are being unlawfully
detained by a temporary warden named Captain Inez L. Twidle, by order and at the
behest of one Lieutenant Colonel L.J. Bradford of the Counter Intelligence Corps, and that,
there being no martial law in the Philippines and the civil government having been formally
delivered to the authorities of the Commonwealth and the Constitution of the
Commonwealth being in full operations, the confinement of the petitioners is illegal..
Respondent, Lieutenant Colonel L. J. Bradford, of the United States Army, alleges in his
return that he is attached on duty in the Counter Intelligence Corps (CIC) of the United
States Army; that petitioners were detained by virtue of the proclamation issued by General
MacArthur on December 29, 1944, and were immediately turned over to the Provost
Marshall at Bilibid Prison on the dates specified in Schedules A, A-1 and A-2, attached to
the writ, and since then respondent had nothing to do with petitioners, and has absolutely
no connection with the correctional institution for women.
Respondent alleges further that he is not acquainted and has no official connection with
Captain Inez L. Twidle; that Captain Twindle is in no manner connected with the Counter
Intelligence Corps and at the date of petition, August 30, 1945, with the correctional
Institution for Women.
In Schedule A it appears that petitioner Lily Raquiza was arrested on March 13, 1945, by
Lieutenant Colonel L. J. Bradford, accused of espionage activities for Japanese and under
commitment order worded as follows:
The person named and described above is deemed a risk to the security of the
United States Forces for the reasons set forth above. The Commanding Officer of
any military stockade, jail, or comparable installation in which this person may be
 confined is authorized and directed to detain him in custody until released by
competent military authority.
In the same schedule that said petitioner was delivered to Bilibid Prison on March 13, 1945.
In Schedule A-1 it appears that Emma Link Infante has been delivered to the Provost
Marshall in Bilibid Prison on April 10, •1945, pursuant to the authority of the proclamation
issued by the Commander in Chief, GHQ, Southwest Pacific Area, dated 29, December,
1944, accused of active collaboration with the Japanese and because her previous
association with the enemy constitutes security risk to the United States Armed Forces.
In Schedule A-2 it appears that petitioner Haydee Tee Han kee has been arrested on
February 25, 1945, for active collaboration with the enemy under a commitment order
identical to what appears in Schedule A and was delivered on the same day to the Provost
Marshall in Bilibid Prison.
There is absolutely no mention in the return of any formal complaint or charge filed against
any of the petitioners nor of any legal proceedings regarding the offenses imputed to them
as mentioned in Schedules A, A-1 and A-2, nor of any judicial order or writ issued by
competent authority for the detention or commitment of petitioners.
Attorney for petitioners filed a reply alleging that, no denial having been made of the
essential allegations of the petition, to the effect that petitioners had been deprived of their
liberty, following the doctrine set in the case Villavicencio vs. Lukban (39 Phil., 778), the
Supreme Court should the grant writ of the habeas corpus and order Lieutenant Colonel L.
J. Bradford and Captain Caroline De Eason or whoever actually is in command of the
Women's Detention Centre in Welfareville to appear before this Court and produce the
bodies of petitioners and explain then and there why they should not be set at liberty
immediately.
Lest we forget it is timely to remember that at the hearing of this case it was denounced by
counsel that one of the petitioners, since her custodian received that order of the Supreme
Court to show cause why petition should not be granted, has been subjected to harsh
maltreatment, confined into a solitary cell, and deprived of the opportunity of the verifying
the truth of the denunciation by hearing the testimony of the petitioners, because the writ
of habeas corpus was not issued as we have twice proposed.
The nature and gravity of the charge against, the petitioners, we hope, will not induce us to
consider with prejudice their case. Whatever our feelings are against the enemy and those
who helped him as spies or collaborators, and no matter how sincere and strong those
feelings might be, it is our inescapable duty not allow them to sway our judgment and
reasoning. Our position imposes upon us the responsibility of applying the law above all
considerations, and it is one of the great elemental principles of law that all accused are
presumed innocent until, after due legal process, they are finally found guilty beyond guilty
beyond reasonable doubt.
15
Perhaps it is worthy of note that the United States Army, instead of following the ordinary
military course with regard to spies and collaborators, and of subjecting them to summary
trial and immediate execution, had chosen merely to keep the petitioners restrained of
liberty, abstaining completely from trying them by court-martial, and proposing to deliver
them to the Commonwealth Government. That the might mean that evidence of guilt of
the petitioners is not strong enough to justify a drastic action, and that if they are guilty, they
belong to the harmless type, and, therefore, will not endanger the safety of military
personnels and installations nor jeopardize public order.
As a matter of fact, it was authoritatively stated at the hearing of this case that many other
persons placed in identical situation as the petitioners are being turned over to the
Government of the Commonwealth.
Respondent Captain Caroline De Eason, in her return, states that petitioners are detained in
the Women's Correctional Institution, of which she is in charge, by virtue of the
proclamation issued by General MacArthur on December 29, 1944, and the commitments
Schedules A, A-1 and A-2.
The proclamation of General MacArthur relied upon by the respondent, it seems, is in
conformity with the statement made by President Franklin D. Roosevelt, upon signing S.J.
Resolutions Nos. 93 and 94, on June 29 1944, the first of them laying down a policy for the
granting of independence and for the acquisition of base adequate to provide for the
mutual protection of the United States and the Philippines. President Roosevelt said:
. . . The measure makes it possible to proclaimed independence as soon as
practicable after constitutional process and normal functions of government have
been restored in the Philippines.
It is contemplated that as soon as conditions warrant, civil government will be set
up under constitutional officers. It will be their duty forthwith to take emergency
measures to alleviate the physical and economic hardship of the Philippine
people, and to prepare the Commonwealth to received and exercise the
independence which we have promised them. The latter includes two tasks of
great importance: Those who have collaborated with the enemy must be
removed from the authority and influence over the political and economic life of
the country, and the democratic from of government guaranteed in the
constitution of the Philippines must be restored for the benefit of the people of the
Islands. (41 Off., Gaz., No. 1, p. 85.)
The proclamation of General MacArthur, issued in the filed on the 29th of December, 1944,
is as follows:
Whereas evidence is before me that certain citizens of the Philippines voluntarily
have given; comfort and sustenance to the enemy in violation of allegiance due
 to Governments of the United States and the Commonwealth of the Philippines;
and
Whereas military necessity requires that such persons be removed from any
opportunity to threaten the security of our military forces or the success of our
military operations;
Now, therefore, I, Douglas MacArthur General of the Army, United States Army, as
Commander in Chief, Southwest Pacific Area, hereby do publish and declare it to
be my purpose to remove such persons, when apprehended, from any position of
political and economic influence in the Philippines and to hold them in restraint for
the duration of the war; whereafter I shall release them to the Philippine
Government for its judgment upon their respective cases, (41 Off. Gaz., No. 2, pp.
148, 149.)
It may appear at first blush that the persons whose liberty is restrained under the
Proclamation, which shall hereafter be referred to as the December proclamation, may be
considered as military prisoners.
But they are not. They are political prisoners. As a matter of fact, if we delve into the history
of the December proclamation, we will find out that the same has been issued to
accommodate the Commonwealth Government and to relieve it from a difficult position
under the circumstances, at the time it began to function in Leyte, immediately after the
landing of the Armed Forces of Liberation, when many political prisoners were intending to
seek habeas corpus relief and the Commonwealth Government handicapped by lack of
the facilities, was not in a position to cope with the extraordinary situation confronting it.
Of course, General MacArthur had the technical right to issue the December proclamation,
under the extraordinary powers wielded by a military commander in chief during war
operation, but let us analyze carefully the text of the document and we will see that the
persons included under it, although they may also be considered as military prisoners as
indicated in the second "Whereas" are in fact civil prisoners, accused of offense of political
character, not emenable to military justice but to the ordinary administration of the justice
in civil courts.
It is true that in the second "Whereas" military necessity is invoked for the removal of
affected persons from any opportunity to threaten the security of the military forces, but in
the dispositive part of the December proclamation, which is the controlling part, it is
catergorically stated that it is THE PURPOSE of General MacArthur "to removed such
persons, when apprehended, from any position of political and economic influence in the
Philippines," and just "to hold them in restraint," NOT TO PROSECUTE, NOR TO TRY, NOR TO
PUNISH, "for the duration of the war."
Finally, General MacArthur says: "Whereafter I shall release them to the Philippine
Government for its judgment upon their respectives cases." That is saying in other way that
16
their cases belong to the civil jurisdiction of the Commonwealth ordinary tribunals, and not
the court-martial or other military tribunal's jurisdiction.
Taking into consideration the December proclamation in conjunction with President
Roosevelt's declaration, the conclusion is inevitable that said document is, in fact, a
political proclamation, not military.
If the petitioners are political prisoners subject to the civil jurisdiction of ordinary courts of
justice if they are to be prosecuted at all, the army has no jurisdiction, nor power, nor
authority, from all legal standpoints, to continue holding them in restraint. They are entitled,
as a matter of fundamental right, to be immediately released, any allegation as to whether
the war was ended or not, notwithstanding, as the Supreme Court of the United States of
America, the highest tribunal under the American flag, has stated that the constitutional
guaranties of personal liberty are a shield for the protection "OF ALL CLASSES, AT ALL TIMES,
AND UNDER ALL CIRCUMSTANCES."
The constitutional guaranties of personal liberty are a shield, for the protection of
all classes, at all times, and under all circumstances; and the writ of habeas
corpus issues to inquire into the legality of the detention of an accused. (Ex
parte Milligan, 4 Wall., 2.)
It is alleged that petitioners are being held as a measure of military necessity and that the
army Commander in Chief, and not an outsider, including the members of this Supreme
Court, is the competent judge as to the existence of military necessity.
Certainly, the army Commander in Chief is supposed to be the most competent judge as
to whether military necessity requires or not the detention of petitioners, and ordinarily this
Court should accept his judgment as conclusive.
But in this case there is nothing to show that General MacAthur, as the Commander in Chief
of the American Armed Forces, is of the opinion that military necessity requires the
detention of petitioners. The only opinion that we have in the record is the one expressed
by respondent Bradford AT THE TIME OF THE APPREHENSION of petitioners. In his return dated
September 5, 1945, said respondent stated that petitioners "were temporarily detained" by
virtue of the December proclamation, and nothing is said whether military necessity still
requires their further detention. In fact said respondent washes his hands when he alleges
that immediately after the apprehension of petitioners, he ceased to have nothing to do
with said persons, while respondent Captain Caroline De Eason, in cotinuing to restrain the
liberty of petitioners, is invoking the authority of the commitment orders of Lt. Col. Bradford,
the other respondent. So it seems that the two respondents are mutually throwing
responsibility to each other's shoulders.
Under the circumstances, we are entitled to opine that no competent or authoritative
statement is on record to the effect that petitioners must remain under restraint as a matter
of military necessity. Many other persons placed in the same situation are being released to
the Commonwealth Government.
It is easy to understand the absence of such statement if we take into consideration that
the state of war has ceased to exist.
The contention that, notwithstanding the historical facts leading to the conclusion that war
has ended, we cannot declare that the war has terminated unless and until a treaty of
peace has been formally signed, like the Treaty of Paris which ended the Spanish-American
war, or a formal declaration of the United States Congress to the effect that peace has
been restored, as it was done two years after the termination of hostilities in the First World
War, is untenable.
Shall the members of this Supreme Court be blind enough to maintain the existence of a
state of war between the Allied Nations and Japan after Japanese Foreign Minister
Mamoru Sigemitsu has signed on V-J Day, September 2, 1945, the document of
unconditional surrender of Japan, by accepting completely the July 26, 1945, Potsdam
declaration?
The following indubitable historical facts are matters of judicial notice, and they are
officially recorded in the Official Gazette:
1. On August 10,1945, the Japanese Government declared its readiness to accept the
Potsdam allied joint declaration "with the understanding that the said declaration does not
compromise any demands which prejudices the prerogatives of his Majesty as a sovereign
ruler."
2. On August 11, 1945, the Allies answered that from the moment of surrender "the authority
of the Emperor and the Japanese Government shall be subject to the Supreme
Commander of the Allied Powers."
3. On august 14, 1945, the Japanese Government accepted the Allied counter-proposal.
The Japanese reply was considered by President Truman as "a full acceptance of the
Potsdam Declaration which specifies the unconditional surrender of Japan."
According, on September 2, 1945, the document of formal surrender was signed by the
Japanese representatives at Tokyo Bay, aboard the battleship Missouri, Admiral Halsey's
flagship, in the presence of General MacAthur, as Supreme Allied Commander, of
representative of individual allied nations.
One day after, General Yamashita, the biggest Japanese military figure in the last war, the
Conqueror of Singapore and called as the "Tiger of Malaya," signed the surrender of all his
forces in the Philippines.
We do not believe it right to maintain the existence of war when, as a matter of fact, war is
over. The immediate and main objective of a warring motion is victory. Once attained, war
ceases to exist. War cannot exist without two contending parties. It is a strungle between
two opposing nations or combination of states. No fight can exist if there is only one fighter.
17
In the last war, which ended on September 2, 1945, there were two opposing parties, the
Allied Nations on the hand, and on the other, Japan. And Japan laid down arms, refused
to continue to fight, surrendered completely. If it is maintained that there is still war, among
whom is it being fought? Certainly, it is not between the United Nations and Japan,
because Japan is not willing to put up any fight anymore. It is preposterous to think that the
Allied Nations shall engage in a shadow war.
Therefore, the formality of a treaty of peace or a resolution of the Congress of the United
States, declaring the war is over, is absolutely unnecessary. At most, it is a mere technicality
that cannot add anything to the stark reality which is facing us. With or without
congressional declaration, the Supreme Court cannot close its eyes to the reality of the
termination of war which is confronting us with the same tangibility of a fist blow.
Suppose the Congress of United States of America does not make any formal declaration
about the end of war within two or three years, as it seems improper for the Allied Powers to
sign any peace treaty with vanquished Japan subject to the authority of the Allied
Supreme Commander, shall the Supreme Court of the Philippines declare that war is going
on, that war continues to exist that far? To do that we must lose all sense of truth.
We hope nobody will suppose that we will have to endure the Japanese self-delusion of
not accepting the existence of a state of war between Japan and China in what they used
to call a mere incident, although for years since the Marco Polo bridge action took place in
1937, thousands of soldiers and millions of Chinese innocent, civilians had died during
protracted military hostilities in wide areas of China, ending only with the unconditional
surrender of Japan at the Tokyo Bay.
In considering the case of the petitioners, we believe that instead of the December
proclamation, we must take into consideration what we shall call hereafter the October
proclamation, issued by General Douglas MacArthur on October 23, 1944.
It is declared therein that the Government of the Commonwealth of the Philippines is the
"sole and only Government having legal and fundamental jurisdiction over the people in
areas of the Philippines free of enemy occupation and control," which is the case of the
place wherein the petitioners are being held in restraint; that the "laws now existing in the
statute books" and the regulations promulgated pursuant thereto "are in full force and
effect and legally binding," including the Constitution which guarantees that "no person
shall be deprived of liberty without due process of law" (sec. 1 Article III) and the laws
affording the relief of habeas corpus to all who are illegally detained.
It is further announced by General Douglas MacArthur in the October proclamation that it
is his purpose to restore and extend to the people of the Philippines "the sacred right of the
government by constitutional process."
It is not logical to entertain the idea that, with the issuance of the December proclamation,
General MacArthur had the least idea of jeopardizing the personal liberty of any citizen of
the Philippines, which is one of the fundamental human rights guaranteed by our
Constitution and laws.
On the morning of February 27, 1945, upon turning over to President Osmeña the full powers
and responsibilities of the Commonwealth Government at a ceremony held at
Malacañang Palace, General MacArthur declared in a stirring speech that his soldiers have
come here as an army of free men, dedicated, with our people, "to the cause of human
liberty," and that with our liberation, millions of our people will have the opportunity to
pledge themselves to the task of building a new and stronger nation "dedicated to making
imperishable those sacred liberties for which many have fought and died."
These words are in line with the United Nations' joint declaration made on January 1, 1942,
to the effect that complete victory over the enemies "is essential to defend life, liberty,
independence and religious freedom, and to preserved human rights and justice."
It is again General MacArthur who, in the speech delivered at a special session of our
Congress on July 9, 1945, said:
Since the beginning of the time men have crusaded for freedom and for equality.
It was this passion for liberty which inspired the architects of my own government
to proclaim so immutably and so beautifully that "all men are created equal" and
"that they are endowed by their Creator with certain inalienable rights — that
among these are Life, Liberty, and the pursuit of Happiness." On such rights rest our
basic concept of human freedom, in defense of which we have fought and still
continue to fight on the battle fields of the world. These rights are the very
antithesis to the totalitarian doctrine which seeks to regiment the people and
control the human will as the price for presumed efficiency in government.
And as a final declaration, binding to all United Nations, including the United States of
America and the Philippines, it is stated in the Charter adopted in the Conference on June
26, 1945, that it is one of the main purposes of the organization to promote and encourage
"respect for human rights and for fundamental freedoms for all without distinction as to
race, sex, language, or religion." (Sec. 3, Article I, Chapter I of the Charter of the United
Nations.)
It is interesting to note that counsel for respondent is invoking section 4 of Rule 102 and Act
No. 190, as amended by Acts Nos. 272 and 421, to maintain that this Supreme Court is
without jurisdiction to entertain the petition.
We cannot help declaring that they very legal provisions invoked precisely show that
petitioners are entitled to the relief sought in the petition.
The pertinent provision of Act No. 190, as amended, were enacted specifically that relief
by habeas corpus cannot be afforded to military prisoners.
We shown already that petitioner are not military prisoners.
18
The provisions of Act No. 190, as amended, were enacted specifically for special
extraordinary situations, and said provisions are no longer in effect, as procedural provisions
on habeas corpus are incorporated in the present judicial rules, wherein said provisions are
ommited. When the Supreme Court adopted the rules, by ommitting said provisions, it
intended clearly to repeal them, and with good reason, because they are incompatible
with democratic principles and with the provisions of our Constitution.
It has been argued with energy by those oppose our issuing the order for the release of the
petitioners, that if we decide to issue it, the United State Army might refuse to set them at
liberty, with the result that the order of release will become a mere scrap of paper and the
supreme court of the Philippines will be placed in the unenviable position of utter ridicule.
We have to answer in the most definite way that we cannot agree with such •a narrow
point of view.
As Greece was the cradle of democracy in the West, so the Philippines is the cradle of
democracy in the East. If the first occidental democracy was born in Greece centuries
before the Christian Era, at the end of the last century the Philippines gave birth to the first
democracy in the Orient, the abode of more than one-half of all humanity. That first oriental
democracy was born with the drafting of the Malolos Constitution in the most difficult and
trying circumstances, under conditions less appropriate for a healthy and vigorous growth,
when our country was enduring the hardships of an uphill bloody struggle for national
independence. But America, the greatest occidental democracy, came to offer us a
helping hand as a second mother. With solicitude she nursed the small child. She reared
and cared for her with the self-sacrificing earnestness of maternal love. The child has grown
into a brown girl, full of the joy of life. The girl learned from the American teacher the full
meaning of constitutional guaranties, of civil liberties, of fundamental human rights. She
studied at heart the accomplishments of Washington, Jefferson, and Lincoln. She followed
the teaching of Franklin, Hamilton, and Madison. She saw how law is really above all men,
and how a humble police officer in the discharge of his official duties, arrested President
Grant, and how the Chief Magistrate of that great nation, the United States of America,
submitted to the arrest. That girl has grown into full maturity, the personification of beauty,
bewitching, the sweetheart of one billion lovers, the greatest pride of America in the
continent of Asia, on the shores of the vast Pacific.
Now, who shall dare to lay hands on her? Who shall dare to destroy that most beautiful
masterpiece of the greatest American democratice virtues? Who shall have heart to
straggle the neck of Philippine democracy, the beloved daughter of American
democracy? Certainly, not the United States Army, nor the heroic and glorious Army of
Liberation not the gallant warriors who fought thousands of battles to return to rescue
Philippine democracy from the Japanese monsters, with the same romantic courage of a
knight of old in the rescue of the beloved princess in captivation. No, certainly not. the
American Army shall never allow itself to stand indicted before the bar of the whole world
as the cold-blooded murdered of the liberated little daughter of American democracy.
But suppose the most unexpected should happen, that there might be members of the
United States Armed Forces who will be blind to ignore the order of this Supreme court, to
make a mockery of the administration of justice, shall that unthinkable hypothesis deter us
from doing our duty? Our answer is simple. No. no one and nothing whole world, neither the
all-powerful army which humbled Germany and forced the surrender of the "invincible"
Japanese Army, nor weapons more dreadful than the atomic bomb, nor the menace of an
imminent catastrophe, shall be powerful enough to make us flinch from complying with our
plain duty as justices of the Supreme court. We must do our duty as justices of the supreme
Court. We must do our consequences. Law and justice might suffer setbacks, endure
eclipses, but at the end they shall reign with all the splendors of real majesty.
Justice Cooley, one of the most distinguished American judges and law-writers, said:
It would be strange indeed if, at this late day, after the eulogiums of six centuries
and a half have been expended upon the Magna Charta, and rivers of blood
shed for its establishment; after its many confirmations, until Coke could in his
speech on the petition of right that "Magna Charta was such a fellow that he will
have no sovereign," and after the extension of its benefits and securities by the
petition of right, bill of rights and habeas corpus acts, it should now be discovered
that evasion of that great clause for the protection of personal liberty, which is the
life and soul of the whole instrument, it so easy as is claimed here. (In the matter of
Jackson [1867], 15 Mich., 416.)
Referring to this opinion of Justice Cooley our Supreme Court said:
The opinion of Judge Cooley has since been accepted as authoritative by other
courts. (Rivers vs. Citchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117
Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.) (Villavicencio vs. Lukban 39
Phil., 791-793.)
We have the almost one-fourth-century-old legal doctrine laid down by this Supreme Court
to the effect that this tribunal and the courts of first instance of the Philippines have
jurisdiction to set free, through habeas corpusproceedings, a civilian who has been illegally
arrested or is unduly being detained by military or naval authorities of the United States.
(Payomo vs. Floyd [Feb. 17, 1922], 42 Phil., 788.)
We agree that, while war is going on, ordinary civil laws shall remain silent, in order not to
impede the effectiveness of war operations. It is legal maxim that laws are silent amidst
arms. Silent leges inter arma. But when the din of war is over, when the clang of arms has
ceased, civil laws are restored with full effectiveness, and it is the function of tribunals to
interpret and apply them. If they fail to apply them in a proper case submitted to them,
they will be recreant to their judicial duties, and are liable to be marked with a stigma they
19
cannot be proud of. Legem terrae amittentes perpetaum infamiae notam inde merito
incurrunt. Those who do not preserve the law of the land, thence justly incur the
ineffaceable brand of infamy.
It is evident that petitioners are being deprived of their personal liberty without due process
of law.
More than three years under the arbitrary rule of the Japanese kempei might have
habituated us to view with some leniency the illegal deprivation of individual freedom. The
gestapo procedures of apprehending indiscriminately our citizens at any time of the day,
mostly after midnight, employed by the ruthless Japanese military police, were a daily
occurrence, and it might have deadened our sense of personal freedom, and might make
us insensible to the injustice being done to petitioners, to their moral sufferings in their
involuntary imprisonment, and, therefore, might have closed our eyes to a situation that
requires immediate relief, and our ears to the anguishing clamors of the victims of the
injustice. But the fact that immediately after we assumed jurisdiction in this case, and
respondents have been required to show cause why relief should not be granted to
petitioners, one of them has been subjected to maltreatment, to an inquisitorial procedure
hardly justifiable to be used against a Japanese prisoner, must arouse us to the full
realization that here there is a case which needs prompt relief, if the final victory won by the
United Nations at Tokyo Bay on September 2, 1945, must have a substantial meaning.
With the facts confronting us in this case, we cannot remain indifferent. They present a
question that affects us in the deepest recesses of our being. It is a human freedom which is
at stake. It is one of the fundamental rights which have existed since mankind began to live
in this world, much before the Code of Hammurabi has been written, anterior and superior
to any constitutional guarantees, and recognized before the organization of society and of
any government, because they have their roots in human nature. We cannot remain
unmoved when we see how such natural right is disregarded, and violated by official
representatives of a democratic government.
If we allow freely such flagrant trampling of the personal freedom of three of our citizens,
we shall shake the faith of one hundred million fellow malayans in the effectiveness of
democratic processes, and one billion orientals shall cease to look here for the MacArthur's
Citadel of Democracy. If the facts presented to us shall happen to reach such public
forums as our Congress and the American Congress, they will not fail to arouse waves of
protest and indignation. This is the first case submitted to the new Supreme Court of the
Philippines, as reconstituted since our liberation, wherein our power is invoked for the
protection of personal liberty, flagrantly violated. Shall we shrink from doing our plain duty?
If we refuse to grant the redress sought by petitioners, we are afraid we are sanctioning and
perpetuating the same procedure which made Fort Santiago a veritable house of horrors,
which branded with eternal infamy the Axis concentration camps, Buchenwald, Dachau,
Maidanak predicated on the supremacy of the torture among the functions of
government, in which case the only peace possible is the peace of death. And then, what
was the use of requiring our boys to fight, to shed their blood, to die in the battle fields of
Bataan? What was the purpose of fighting in the whole world to crush Germany and
Japan, if we are to follow their procedures? What meaning will the gospel of fundamental
freedoms preached by Roosevelt have?
We will not conclude without challenging the applicability of the quotation in the majority
opinion of what has been said by the Supreme Court of the United States of America in the
case of Coleman vs. Tennessee (97 U.S., 509), recognizing the privilege of extraterritoriality in
a foreign army, permitted to march through a friendly country or to be stationed in it.
The American Army of Liberation is not a "foreign army." It represents the same sovereignty
of the United States of America under which the Philippines is placed. That army is waving
the same American flag that waves in the government offices of the Commonwealth. From
our point of view, we must consider it as a domestic army. Is it not the continuation of the
Fil-American Army which fought in Bataan and Corregidor? Did not the American boys and
our boys mix their blood in the same holocaust, in the same battles? Are not the dead
American soldiers resting in the same graves with the dead Filipino soldiers in an eternal
embrace of brotherhood, sanctified by the noblest ideals?
There is no analogy between that of a foreign army which is granted free passage in a
friendly country and that of the American Army in the Philippines, which has belonged here
since the American flag began to fly in this country, had to return to vindicate the honor of
the American sovereignty, wantonly insulted in the treacherous attack of Pearl Habor, and
shall remain, even after the formal proclamation of our national independence, to protect
that independence, as has been solemnly pledged by President Roosevelt, and to
maintain vigilance in the first line of defense of the United States of America.
With regards to the privilege of extraterritoriality granted to a foreign army, permitted to
march through a friendly country, it must be understood as limited to the internal matters of
said army. That is, it is exempt from the civil and criminal jurisdiction of the place as far as it
does not affect the substantial rights of the nationals of the friendly country where it is
stationed. Those substantial rights, specially if guaranteed in the Constitution, in proper
cases, shall always merit the protection of the courts of the territory. That official duty of the
courts shall be more imperative if we take into consideration the stress given in the Charter
of the United Nations upon the protection of human rights and fundamental freedoms.
We cannot accept the position of those who maintain that our civil courts should not
exercise jurisdiction over the United States Army, the very army of a country which
recognizes no one as being above the law, no matter how high his position is or how
powerful he is, a country wherein a humble police officer, in the performance of his official
duty, may legally arrest the Chief Magistrate of the nation. Such position is subersive of the
20
fundamental tenets of democracy. We cannot accept it in the same way that we cannot
accept military dictatorship or any other kind of dictatorship. Under the American
Constitution or the Philippine Constitution, the army is always placed under the authority of
civil government, functioning through its legislative, executive and judicial branches. The
supreme commander of the army is the President, a civil officer elected by the people. The
army has to obey the laws. The jurisdiction of the courts is granted by the Constitution and
by the laws. We cannot accept a theory that might revive or reproduce the military tyranny
of Himmler or of the Japanese Kempei. With all our admiration for the gallant American
Army, with all our deep gratitude for the freedom it has restored to us, we cannot recognize
in it any power that is above the law of our land. All tyranny is hateful, even if it be
exercised by our own parents, the very persons to whom we owe our lives and all
opportunities and happiness. We must do all we can to show our recognition, respect, and
gratitude to the American Army, but we should never renounce the supremacy of the law.
If we should falter in our national duty of upholding law, we will be unworthy of the efforts
and sacrifices undergone by the American Army to liberate our country. And we can
uphold the law by applying it in the proper case and, if its application requires the exercise
of jurisdiction over the American troops, nothing shall make us hesitate to exercise that
jurisdiction. It is the only way of keeping alive the public faith in the effectiveness of the
courts as the bulwark of the rights of the people.
We are, therefore, of the opinion that an order should be issued by this Court without delay
for the immediate release of petitioners.
FIRST DIVISION
G.R. No. 125865 January 28, 2000
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in
1994, for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he
was charged before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two
counts of grave oral defamation docketed as Criminal Cases Nos. 53170 and 53171.
Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing petitioner's
bail at P2,400.00 per criminal charge, the MeTC released him to the custody of the Security
Officer of ADB. The next day, the MeTC judge received an "office of protocol" from the
Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity from
legal process under Section 45 of the Agreement between the ADB and the Philippine
Government regarding the Headquarters of the ADB (hereinafter Agreement) in the
country. Based on the said protocol communication that petitioner is immune from suit, the
MeTC judge without notice to the prosecution dismissed the two criminal cases. The latter
filed a motion for reconsideration which was opposed by the DFA. When its motion was
denied, the prosecution filed a petition for certiorari and mandamus with the Regional Trial
Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to
enforce the warrant of arrest it earlier issued. After the motion for reconsideration was
denied, petitioner elevated the case to this Court viaa petition for review arguing that he is
covered by immunity under the Agreement and that no preliminary investigation was held
before the criminal cases were filed in court.1âwphi1.nêt
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the DFA
that petitioner is covered by any immunity. The DFA's determination that a certain person is
covered by immunity is only preliminary which has no binding effect in courts. In
receiving ex-parte the DFA's advice and in motu propio dismissing the two criminal cases
without notice to the prosecution, the latter's right to due process was violated. It should be
noted that due process is a right of the accused as much as it is of the prosecution. The
needed inquiry in what capacity petitioner was acting at the time of the alleged
utterances requires for its resolution evidentiary basis that has yet to be presented at the
proper time.1 At any rate, it has been ruled that the mere invocation of the immunity clause
does not ipso facto result in the dropping of the charges.2
Second, under Section 45 of the Agreement which provides:
Officers and staff of the Bank including for the purpose of this Article experts and
consultants performing missions for the Bank shall enjoy the following privileges
and immunities:
a.) immunity from legal process with respect to acts performed by them
in their official capacity except when the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the exception that the acts
was done in "official capacity." It is therefore necessary to determine if petitioner's case falls
within the ambit of Section 45(a). Thus, the prosecution should have been given the
chance to rebut the DFA protocol and it must be accorded the opportunity to present its
controverting evidence, should it so desire.
21
Third, slandering a person could not possibly be covered by the immunity agreement
because our laws do not allow the commission of a crime, such as defamation, in the
name of official duty.3 The imputation of theft is ultra vires and cannot be part of official
functions. It is well-settled principle of law that a public official may be liable in his personal
private capacity for whatever damage he may have caused by his act done with malice
or in bad faith or beyond the scope of his authority or jurisdiction.4 It appears that even the
government's chief legal counsel, the Solicitor General, does not support the stand taken
by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent,
assuming petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state
except in the case of an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving state outside his official functions.5 As
already mentioned above, the commission of a crime is not part of official duty.
Finally, on the contention that there was no preliminary investigation conducted, suffice it
to say that preliminary investigation is not a matter of right in cases cognizable by the MeTC
such as the one at bar.6 Being purely a statutory right, preliminary investigation may be
invoked only when specifically granted by law.7 The rule on the criminal procedure is clear
that no preliminary investigation is required in cases falling within the jurisdiction of the
MeTC.8 Besides the absence of preliminary investigation does not affect the court's
jurisdiction nor does it impair the validity of the information or otherwise render it defective.9
WHEREFORE, the petition is DENIED.
SO ORDERED.1âwphi1.nêt
Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.
Footnotes
1 See United States v. Guinto, 182 SCRA 644 [1990].
2 Chavez v. Sandiganbayan, 193 SCRA 282 [1991].
3 K.H. Wylie v. Rarang, 209 SCRA 357, 368 [1992].
4 Shauf v. CA, 191 SCRA 713 [1990]; Animos v. Phil. Veterans Affairs Office, 174
SCRA 214 [1989]; Dumlao v. CA, 114 SCRA 247 [1982].
5 Sec. 31, 1 (c); See also Minucher v. CA, 214 SCRA 242 [1992].
6 See Del Rosario, Jr. v. Bartolome, 270 SCRA 645 [1997].
7 People v. Abejuela, 38 SCRA 324 [1971].
8 Sec. 1, Rule 112, Rules of Criminal Procedure.
9 People v. Gomez, 117 SCRA 72 [1982]; People v. Casiano, 1 SCRA 478 [1961].
FIRST DIVISION
 [G.R. No. 125865. January 28, 2000]
JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in
1994, for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he
was charged before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two
counts of grave oral defamation docketed as Criminal Cases Nos. 53170 and 53171.
Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing petitioners bail
at P2,400.00 per criminal charge, the MeTC released him to the custody of the Security
Officer of ADB. The next day, the MeTC judge received an "office of protocol" from the
Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity from
legal process under Section 45 of the Agreement between the ADB and the Philippine
Government regarding the Headquarters of the ADB (hereinafter Agreement) in the
country. Based on the said protocol communication that petitioner is immune from suit, the
MeTC judge without notice to the prosecution dismissed the two criminal cases. The latter
filed a motion for reconsideration which was opposed by the DFA. When its motion was
denied, the prosecution filed a petition for certiorari and mandamus with the Regional Trial
Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to
enforce the warrant of arrest it earlier issued. After the motion for reconsideration was
denied, petitioner elevated the case to this Court via a petition for review arguing that he is
covered by immunity under the Agreement and that no preliminary investigation was held
before the criminal cases were filed in court.
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the DFA
that petitioner is covered by any immunity. The DFAs determination that a certain person is
covered by immunity is only preliminary which has no binding effect in courts. In
receiving ex-parte the DFAs advice and in motu proprio dismissing the two criminal cases
without notice to the prosecution, the latters right to due process was violated. It should be
noted that due process is a right of the accused as much as it is of the prosecution. The
needed inquiry in what capacity petitioner was acting at the time of the alleged
utterances requires for its resolution evidentiary basis that has yet to be presented at the
proper time.[1] At any rate, it has been ruled that the mere invocation of the immunity
clause does not ipso facto result in the dropping of the charges.[2]
Second, under Section 45 of the Agreement which provides:
"Officers and staff of the Bank including for the purpose of this Article
experts and consultants performing missions for the Bank shall enjoy the
following privileges and immunities:
22
a.).......immunity from legal process with respect to acts
performed by them in their official capacity except when the
Bank waives the immunity."
the immunity mentioned therein is not absolute, but subject to the exception that the act
was done in "official capacity." It is therefore necessary to determine if petitioners case falls
within the ambit of Section 45(a). Thus, the prosecution should have been given the
chance to rebut the DFA protocol and it must be accorded the opportunity to present its
controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement
because our laws do not allow the commission of a crime, such as defamation, in the
name of official duty.[3] The imputation of theft is ultra vires and cannot be part of official
functions. It is well-settled principle of law that a public official may be liable in his personal
private capacity for whatever damage he may have caused by his act done with malice
or in bad faith or beyond the scope of his authority or jurisdiction.[4] It appears that even the
governments chief legal counsel, the Solicitor General, does not support the stand taken by
petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent,
assuming petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state
except in the case of an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving state outside his official functions.[5] As
already mentioned above, the commission of a crime is not part of official duty.
Finally, on the contention that there was no preliminary investigation conducted, suffice it
to say that preliminary investigation is not a matter of right in cases cognizable by the MeTC
such as the one at bar.[6]Being purely a statutory right, preliminary investigation may be
invoked only when specifically granted by law.[7] The rule on criminal procedure is clear
that no preliminary investigation is required in cases falling within the jurisdiction of the
MeTC.[8] Besides, the absence of preliminary investigation does not affect the courts
jurisdiction nor does it impair the validity of the information or otherwise render it
defective.[9]
WHEREFORE, the petition is DENIED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.2/22/0
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44896 July 31, 1936
RODOLFO A. SCHNECKENBURGER, petitioner,
vs.
MANUEL V. MORAN, Judge of First Instance of Manila, respondent.
Cardenas and Casal for petitioner.
Office of the Solicitor-General Hilado for respondent.
ABAD SANTOS, J.:
The petitioner was duly accredited honorary consul of Uruguay at Manila, Philippine Islands
on June 11, 1934. He was subsequently charged in the Court of First Instance of Manila with
the crime of falsification of a private document. He objected to the jurisdiction of the court
on the ground that both under the Constitution of the United States and the Constitution of
the Philippines the court below had no jurisdiction to try him. His objection having been
overruled, he filed this petition for a writ of prohibition with a view to preventing the Court of
First Instance of Manila from taking cognizance of the criminal action filed against him.
In support of this petition counsel for the petitioner contend (1) That the Court of First
Instance of Manila is without jurisdiction to try the case filed against the petitioner for the
reason that under Article III, section 2, of the Constitution of the United States, the Supreme
Court of the United States has original jurisdiction in all cases affecting ambassadors, other
public ministers, and consuls, and such jurisdiction excludes the courts of the Philippines;
and (2) that even under the Constitution of the Philippines original jurisdiction over cases
affecting ambassadors, other public ministers, and consuls, is conferred exclusively upon
the Supreme Court of the Philippines.
This case involves no question of diplomatic immunity. It is well settled that a consul is not
entitled to the privileges and immunities of an ambassador or minister, but is subject to the
laws and regulations of the country to which he is accredited. (Ex parte Baiz, 135 U. S., 403;
34 Law. ed., 222.) A consul is not exempt from criminal prosecution for violations of the laws
of the country where he resides. (U. S. vs. Ravara, 2 Dall., 297; 1 Law. ed., 388; Wheaton's
International Law [2d ed.], 423.) The substantial question raised in this case is one of
jurisdiction.
1. We find no merit in the contention that Article III, section 2, of the Constitution of
the United States governs this case. We do not deem it necessary to discuss the
question whether the constitutional provision relied upon by the petitioner
extended ex propio vigore over the Philippines. Suffice it to say that the
inauguration of the Philippine Commonwealth on November 15, 1935, has
brought about a fundamental change in the political and legal status of the
Philippines. On the date mentioned the Constitution of the Philippines went into full
force and effect. This Constitution is the supreme law of the land. Not only the
members of this court but all other officers, legislative, executive and judicial, of
the Government of the Commonwealth, are bound by oath to support the
23
Constitution. (Article XIII, section 2.) This court owes its own existence to the great
instrument, and derives all its powers therefrom. In the exercise of its powers and
jurisdiction, this court is bound by the provisions of the Constitution. The
Constitution provides that the original jurisdiction of this court "shall include all
cases affecting ambassadors, other public ministers, and consuls." In deciding the
instant case this court cannot go beyond this constitutional provision.
2. It remains to consider whether the original jurisdiction thus conferred upon this
court by the Constitution over cases affecting ambassadors, other public ministers,
and consuls, is exclusive. The Constitution does not define the jurisdiction of this
court in specific terms, but merely provides that "the Supreme Court shall have
such original and appellate jurisdiction as may be possessed and exercised by the
Supreme Court of the Philippine Islands at the time of the adoption of this
Constitution." It then goes on to provide that the original jurisdiction of this court
"shall include all cases affecting ambassadors, other public ministers, and consuls."
In the light of the constitutional provisions above adverted to, the question arises whether
the original jurisdiction possessed and exercised by the Supreme Court of the Philippine
Islands at the time of the adoption of the Constitution was exclusive.
The original jurisdiction possessed and exercised by the Supreme Court of the Philippine
Islands at the time of the adoption of the Constitution was derived from section 17 of Act
No. 136, which reads as follows: The Supreme Court shall have original jurisdiction to issue
writs of mandamus, certiorari, prohibition, habeas corpus, and quo warrantoin the cases
and in the manner prescribed in the Code of Civil Procedure, and to hear and determine
the controversies thus brought before it, and in other cases provided by law." Jurisdiction to
issue writs of quo warranto, certiorari, mandamus, prohibition, and habeas corpus was also
conferred on the Courts of First Instance by the Code of Civil Procedure. (Act No. 190, secs.
197, 217, 222, 226, and 525.) It results that the original jurisdiction possessed and exercised
by the Supreme Court of the Philippine Islands at the time of the adoption of the
Constitution was not exclusive of, but concurrent with, that of the Courts of First Instance.
Inasmuch as this is the same original jurisdiction vested in this court by the Constitution and
made to include all cases affecting ambassadors, other public ministers, and consuls, it
follows that the jurisdiction of this court over such cases is not exclusive.
The conclusion we have reached upon this branch of the case finds support in the
pertinent decisions of the Supreme Court of the United States. The Constitution of the United
States provides that the Supreme Court shall have "original jurisdiction" in all cases affecting
ambassadors, other public ministers, and consuls. In construing this constitutional provision,
the Supreme Court of the United States held that the "original jurisdiction thus conferred
upon the Supreme Court by the Constitution was not exclusive jurisdiction, and that such
grant of original jurisdiction did not prevent Congress from conferring original jurisdiction in
cases affecting consuls on the subordinate courts of the Union. (U. S. vs. Ravara, supra;
Bors vs. Preston, 111 U. S., 252; 28 Law. ed., 419.)
3. The laws in force in the Philippines prior to the inauguration of the Commonwealth
conferred upon the Courts of the First Instance original jurisdiction in all criminal cases to
which a penalty of more than six months' imprisonment or a fine exceeding one hundred
dollars might be imposed. (Act No. 136, sec. 56.) Such jurisdiction included the trial of
criminal actions brought against consuls for, as we have already indicated, consuls, not
being entitled to the privileges and immunities of ambassadors or ministers, are subject to
the laws and regulations of the country where they reside. By Article XV, section 2, of the
Constitution, all laws of the Philippine Islands in force at the time of the adoption of the
Constitution were to continue in force until the inauguration of the Commonwealth;
thereafter, they were to remain operative, unless inconsistent with the Constitution until
amended, altered, modified, or repealed by the National Assembly. The original jurisdiction
granted to the Courts of First Instance to try criminal cases was not made exclusively by
any, law in force prior to the inauguration of the Commonwealth, and having reached the
conclusion that the jurisdiction conferred upon this court by the Constitution over cases
affecting ambassadors, other public ministers, and consuls, is not an exclusive jurisdiction,
the laws in force at the time of the adoption of the Constitution, granting the Courts of First
Instance jurisdiction in such cases, are not inconsistent with the Constitution, and must be
deemed to remain operative and in force, subject to the power of the National Assembly
to amend alter, modify, or repeal the same. (Asiatic P. Co. vs. Insular Collector of Customs,
U. S. Supreme Court [Law. ed.], Adv. Ops., vol. 80, No. 12, pp. 620, 623.)
We conclude, therefore, that the Court of First Instance of Manila has jurisdiction to try the
petitioner, an that the petition for a writ of prohibition must be denied. So ordered.
Avanceña, C. J., Villa-Real, Imperial, Diaz, and Recto, JJ., concur.
Separate Opinions
LAUREL, J., concurring:
In my humble opinion, there are three reasons why the jurisdiction of this court over the
petitioner in the instant case is concurrent and not exclusive. The strictly legal reason is set
forth in the preceding illuminating opinion. The other reasons are (a) historical and based
on what I consider is the (b) theory upon which the grant of legislative authority under our
Constitution is predicated.
(a) As the provision in our Constitution regarding jurisdiction in cases affecting ambassadors,
other public ministers, and consuls, has been taken from the Constitution of the United
States, considerable light would be gained by an examination of the history and
interpretation thereof in the United States.
24
The fifth resolution of the New Jersey plan (Paterson resolutions of June 15, 1787) gave the
Supreme Court of the United States, the only national court under the plan, authority to
hear and determine "by way of appeal, in the dernier resort . . . all cases touching the rights
of ambassadors . . . ." This clause, however, was not approved. On July 18, the Convention
of 1787 voted an extraordinarily broad jurisdiction to the Supreme Court extending "to
cases arising under laws passed by the general legislature, and to such other questions as
involve the national peace and harmony." This general proposition was considerably
narrowed by Randolph in his draft of May 29 which, however, did not mention anything
about ambassadors, other public ministers and consuls. But the Committee of Detail,
through Rutledge, reported on August 6 as follows: "Article XI, Section 3. The jurisdiction of
the Supreme Court shall extend . . . to all cases affecting ambassadors, other public
ministers and consuls; . . . In . . . cases affecting ambassadors, other public ministers and
consuls, . . . this jurisdiction shall be original . . . ."On September 12, the Committee on Style
reported the provision as follows: "Article III, Section 2. The judicial power shall extend . . . to
all cases affecting ambassadors, other public ministers and consuls . . . In (all) cases
affecting ambassadors, other public ministers and consuls . . . the Supreme Court shall have
original jurisdiction." This provision was approved in the convention with hardly any
amendment or debate and is now found in clause 2, section 2 of Article III of the
Constitution of the United States. (The Constitution and the Courts, Article on "Growth of the
Constitution", by William M. Meigs, New York, 1924, vol. 1, pp. 228, 229. See also Farrand,
Records of the Federal Convention of 1787, Yale University Press, 1934, 3 vols.; Warren, The
Making of the Constitution, Boston, 1928, pp. 534-537.)
The word "original", however, was early interpreted as not exclusive. Two years after the
adoption of the Federal Constitution, or in 1789, the First Judiciary Act (Act of September 24,
1789, 1 Stat., c. 20, 687) was approved by the first Congress creating the United States
District and Circuit Courts which were nisi prius courts, or courts of first instance which dealt
with different items of litigation. The district courts are now the only federal courts of first
instance, the circuit courts having been abolished by the Act of March 3, 1911, otherwise
known as the Judicial Code. The Judiciary Act of 1787 invested the district courts with
jurisdiction, exclusively of the courts of the several states, of all suits against consuls or vice-
consuls and the Supreme Court of the United States with original but not exclusive
jurisdiction of all suits in which a consul or vice-consul shall be a party. By the passage of the
Act of February 18, 1875 (18 Stat., 470, c. 137), the clause giving the federal courts exclusive
jurisdiction was repealed and, since then state courts have had concurrent jurisdiction with
the federal courts over civil or criminal proceedings against a consul or vice-consul. At the
present time, the federal courts exercise exclusive jurisdiction "of suits or proceedings
against ambassadors or other or other public ministers, or their domestics or domestic
servants, as a court of law can have consistently with the law of nations; and original, but
not exclusive, jurisdiction, of all suits brought by ambassadors or other public ministers, or in
which a consul or vice-consul is a party." (Act of March 8, 1911, 36 Stat., 1156, reenacting
sec. 687 of the Act of September 24, 1789; 28 U. S. C. A., sec. 341; Hopkins' Federal Judicial
Code, 4th ed., by Babbit, 1934, sec. 233.) The district courts now have original jurisdiction of
all suits against consuls and vice-consuls." (Act of March 3, 1911, 36 Stat., 1093; 28 U. S. C. A.,
sec. 41, subsec. 18; Hopkins' Federal Judicial Code, 4th ed., by Babbit, 1934, sec. 24, par.
18.)
The Judiciary Act of 1789 was one of the early and most satisfactory acts passed by the
Congress of the United States. It has remained essentially unchanged for more than 145
years. It was prepared chiefly by Oliver Ellsworth of Connecticut (1 Ann. Cong., 18, April 7,
1789) one of the ablest jurists in the Constitutional Convention, who was later Chief Justice
of the Supreme Court of the United States (1796-1800). It is interesting to note that 10 of the
18 senators and 8 of the members of the House of the first Congress had been among the
55 delegates who actually attended the Convention that adopted the federal Constitution
(Warren, Congress, the Constitution and the Supreme Court [Boston, 1935], p. 99). When,
therefore, the first Congress approved the Judiciary Act of 1789 vesting in the Supreme
Court original but not exclusive jurisdiction of all suits in which a consul or a vice-consul shall
be a party, express legislative interpretation as to the meaning of the word "original" as not
being exclusive was definitely made and this interpretation has never been repudiated. As
stated by the Supreme Court of the United States in Ames vs. Kansas ([1884], 111 U. S., 449; 4
S. Ct., 437; 28 Law. ed., 482):
In view of the practical construction put on this provision of the Constitution by
Congress, at the very moment of the organization of the government, and of the
significant fact that, from 1789 until now, no court of the United States has ever in
its actual adjudications determined to the contrary, we are unable to say that it is
not within the power of Congress to grant to the inferior courts of the United States
jurisdiction in cases where the Supreme Court has been vested by the Constitution
with original jurisdiction. It rests with the legislative department of the government
to say to what extent such grants shall be made, and it may safely be assumed
that nothing will ever be done to encroach upon the high privileges of those for
whose protection the constitutional provision was intended. At any rate, we are
unwilling to say that the power to make the grant does not exist.
Dicta in some earlier cases seem to hold that the word "original" means "exclusive" and as
observed by Justice Field in United States vs. Louisiana ([1887], 123 U. S., 36; 8 S. Ct., 17; 31
Law. ed., 69), the question has given rise to some differences of opinion among the earlier
members of the Supreme Court of the United States. (See, for instance, dissenting opinion of
Iredell, J., in U. S. vs. Ravara [1793], 2 Dall., 297; 1 Law. ed., 388.) Reliance was had on more
25
or less general expressions made by Chief Justice Marshall in the case of
Marbury vs. Madison ([1803], 1 Cranch, 137; 2 Law. ed., 60), where it was said:
"If congress remains at liberty to give this court appellate jurisdiction, where the constitution
has declared their jurisdiction shall be original; and original jurisdiction where the
constitution has declared it shall be appellate; the distribution of jurisdiction, made in the
constitution, is form without substance." But Chief Justice Marshall who penned the decision
in this case in 1803 had occasion later, in 1821, to explain the meaning and extent of the
pronouncements made in the Marbury case. He said:
In the case of Marbury vs. Madison ([1803], 1 Cranch [U. S.], 137, 172; 2 Law. ed.,
60), the single question before the court, so far as that case can be applied to
this, was, whether the legislature could give this court original jurisdiction in a case
in which the Constitution had clearly not given it, and in which no doubt
respecting the construction of the article could possibly be raised. The court
decided, and we think very properly, that the legislature could not give original
jurisdiction in such a case. But, in the reasoning of the court in support of this
decision, some expressions are used which go far beyond it. The counsel for
Marbury had insisted on the unlimited discretion of the legislature in the
apportionment of the judicial power; and it is against this argument that the
reasoning of the court is directed. They say that, if such had been the intention of
the article, "it would certainly have been useless to proceed farther than to define
the judicial power, and the tribunals in which it should be vested." The court says,
that such a construction would render the clause, dividing the jurisdiction of the
court into original and appellate, totally useless; that "affirmative words are often,
in their operation, negative of other objects than those which are affirmed; and, in
this case (in the case of Marbury vs. Madison), a negative or exclusive sense must
be given to them, or they have no operation at all." "It cannot be presumed,"
adds the court, "that any clause in the Constitution is intended to be without
effect; and, therefore, such a construction is inadmissible, unless the words require
it." The whole reasoning of the court proceeds upon the idea that the affirmative
words of the clause giving one sort of jurisdiction, must imply a negative of any
other sort of jurisdiction, because otherwise the words would be totally
inoperative, and this reasoning is advanced in a case to which it was strictly
applicable. If in that case original jurisdiction could have been exercised, the
clause under consideration would have been entirely useless. Having such cases
only in its view, the court lays down a principle which is generally correct, in terms
much broader than the decision, and not only much broader than the reasoning
with which that decision is supported, but in some instances contradictory to its
principle. The reasoning sustains the negative operation of the words in that case,
 because otherwise the clause would have no meaning whatever, and because
such operation was necessary to give effect to the intention of the article. The
effort now made is, to apply the conclusion to which the court was conducted by
that reasoning in the particular case, to one in which the words have their full
operation when understood affirmatively, and in which the negative, or exclusive
sense, is to be so used as to defeat some of the great objects of the article. To this
construction the court cannot give its assent. The general expressions in the case
of Marbury vs. Madison must be understood with the limitations which are given to
them in this opinion; limitations which in no degree affect the decision in that
case, or the tenor of its reasoning. (Cohens vs. Virginia [1821], 6 Wheat., 264, 400; 5
Law. ed., 257.)
What the Supreme Court in the case of Marbury vs. Madison held then was that Congress
could not extend its original jurisdiction beyond the cases expressly mentioned in the
Constitution, the rule of construction being that affirmative words of the Constitution
declaring in what cases the Supreme Court shall have original jurisdiction must be
construed negatively as to all other cases. (See Ex parte Vallandigham [1864], 1 Wall., 243,
252; 17 Law. ed., 589; Martin vs. Hunter's Lessee [1816], 1 Wheat., 305, 330; 4 Law. ed., 97; U.
S. vs. Haynes [D. C. Mass., 1887], 29 Fed., 691, 696.) That was all.
It should be observed that Chief Justice Marshall concurred in the opinion in the case of
Davis vs. Packard (11833], 7 Pet., 276; 8 Law. ed., 684). In this case the jurisdiction of the
state court of New York over a civil suit against a foreign consul was denied solely on the
ground that jurisdiction had been conferred in such a case upon the district courts of the
United States exclusively of the state courts. Such a ground, says Justice Harlan in
Bors vs. Preston ([1884], 111 U. S., 252; 4 S. Ct., 407; 28 Law. ed., 419), would probably not
have been given had it been believed that the grant of original jurisdiction to the Supreme
Court deprived Congress of the power to confer concurrent original jurisdiction in such
cases upon subordinate courts of the Union, concluding that the decision in the case "may
be regarded, as an affirmance of the constitutionality of the Act of 1789, giving original
jurisdiction in such cases, also, to District Courts of the United States." Of the seven justices
who concurred in the judgment in the case of Davis, five participated in the decision of
Osborn vs. Bank of the United States ([1824], 9 Wheat., 738; 6 Law. ed., 204), also penned by
Chief Justice Marshall and relied upon as authority together with
Marbury vs. Madison, supra.
The rule enunciated in Bors vs. Preston, supra, is the one followed in the United States. The
question involved in that case was whether the Circuit Court then existing had jurisdiction
under the Constitution and laws of the United States to hear and determine any suit
whatever against the consul of a foreign government. Justice Harlan said:
26
The Constitution declares that "The judicial power of the United States shall extend . . . to all
cases affecting ambassadors or other public ministers and consuls;" to controversies
between citizens of a state and foreign citizens or subjects; that "In all cases affecting
ambassadors, other public ministers and consuls, . . . the Supreme Court shall have original
jurisdiction;" and that in all other cases previously mentioned in the same clause "The
Supreme Court shall have appellate jurisdiction, both as to law and fact, with such
exceptions and under such regulations as the Congress shall make." The Judiciary Act of
1789 invested the District Courts of the United States with jurisdiction, exclusively of the
courts of the several States, of all suits against consuls or vice-consuls, except for offenses of
a certain character; this court, with "Original, but not exclusive, jurisdiction of all suits . . . in
which a consul or vice-consul shall be a party;" and the circuit courts with jurisdiction of civil
suits in which an alien is a party. (l Stat. at L., 76-80.) In this act we have an affirmance, by
the first Congress — many of whose members participated in the Convention which
adopted the Constitution and were, therefore, conversant with the purposes of its framers
— of the principle that the original jurisdiction of this court of cases in which a consul or
vice-consul is a party, is not necessarily exclusive, and that the subordinate courts of the
Union may be invested with jurisdiction of cases affecting such representatives of foreign
governments. On a question of constitutional construction, this fact is entitled to great
weight.
In this case of Bors, Justice Harlan adopted the view entertained by Chief Justice Taney in
the earlier case of Gittings vs. Crawford (C. C. Md., 1838; Taney's Dec., 1, 10). In that case of
Gittings, it was held that neither public policy nor convenience would justify the Supreme
Court in implying that Congress is prohibited from giving original jurisdiction in cases
affecting consuls to the inferior judicial tribunals of the United States. Chief Justice Taney
said:
If the arrangement and classification of the subjects of jurisdiction into appellate
and original, as respects the Supreme Court, do not exclude that tribunal from
appellate power in the cases where original jurisdiction is granted, can it be right,
from the same clause, to imply words of exclusion as respects other courts whose
jurisdiction is not there limited or prescribed, but left for the future regulation of
Congress? The true rule in this case is, I think, the rule which is constantly applied to
ordinary acts of legislation, in which the grant of jurisdiction over a certain subject-
matter to one court, does not, of itself, imply that that jurisdiction is to be exclusive.
In the clause in question, there is nothing but mere affirmative words of grant, and
none that import a design to exclude the subordinate jurisdiction of other courts of
the United States on the same subject-matter. (See also U.S. vs. Ravara [1793], 2
Dall., 297; 1 Law. ed., 388; United States vs. Louisiana [1887], 123 U. S., 36; 8 S. Ct.,
17; 31 Law. ed., 69; Ex parte Baiz [1890],135 U. S., 403; 10 S. Ct., 854; 34 Law. ed.,
 222, denying writ of prohibition Hollander vs. Baiz [D. C. N. Y., 1890]; 41 Fed., 732;
Iasigi vs. Van de Carr [1897], 166 U.S., 391; 17 S. Ct., 595; 41 Law. ed., 1045;
Graham vs. Strucken [C. C. N. Y., 1857]; 4 Blatchf., 58; Lorway vs. Lousada [D. C.
Mass., 1866]; Fed. Cas., No. 8517; St. Luke's Hospital vs. Barclay [C. C. N. Y., 1855]; 3
Blatchf., 259; State of Texas vs. Lewis [C. C. Tex., 1882], 14 Fed., 65; State of
Alabama vs. Wolffe (C. C. Ala., 1883], 18 Fed., 836, 837; Pooley vs. Luco [D. C. Cal.,
1896], 76 Fed., 146.)
It is interesting to note that in the case of St. Luke's Hospital vs. Barclay, supra, the jurisdiction
of circuit courts exclusive of state courts over aliens, no exception being made as to those
who were consuls, was maintained. (See1 U. S. Stat. at L., c. 20, sec. 11, pp. 78, 79.)
From the history of, and the judicial interpretation placed on, clause 2, section 2 of Article III
of the Constitution of the United States it seems clear that the word "original" in reference to
the jurisdiction of Supreme Court of the United States over cases affecting ambassadors,
other public ministers and consuls, was never intended to be exclusive as to prevent the
Congress from vesting concurrent jurisdiction over cases affecting consuls and vice-consuls
in other federal courts.
It should be observed that the Philadelphia Convention of 1787 placed cases affecting the
official representatives of foreign powers under the jurisdiction of Federal Supreme Court to
prevent the public peace from being jeopardized. Since improper treatment of foreign
ambassadors, other public ministers and consuls may be a casus belli, it was thought that
the federal government, which is responsible for their treatment under international law,
should itself be provided with the means to meet the demands imposed by international
duty. (Tucker, The Constitution of the United States [1899], vol. II, 760, 772; vide, The
Federalist, No. LXXXI, Ashley's Reprint [1917], 415.) Bearing in mind in the distinction which
international law establishes between ambassadors and other public ministers, on the one
hand, and consuls and other commercial representatives, on the other, Congress saw it fit
to provide in one case a rule different from the other, although as far as consuls and vice-
consuls are concerned, the jurisdiction of the Federal Supreme Court, as already observed,
though original is not exclusive. But in the United States, there are two judicial systems,
independent one from the other, while in the Philippines there is but one judicial system. So
that the reason in the United States for excluding certain courts — the state courts — from
taking cognizance of cases against foreign representatives stationed in the United States
does not obtain in the Philippines where the court of the lowest grade is as much a part of
an integrated system as the highest court.
Let us now turn our own laws as they affect the case of the petitioner. Undoubtedly
Philippine courts are not federal courts and they are not governed by the Judiciary Acts of
the United States. We have a judicial system of our own, standing outside the sphere of the
27
American federal system and possessing powers and exercising jurisdiction pursuant to the
provisions of our own Constitution and laws.
The jurisdiction of our courts over consuls is defined and determined by our Constitution and
laws which include applicable treaties and accepted rules of the laws of nations. There are
no treaties between the United States and Uruguay exempting consuls of either country
from the operation of local criminal laws. Under the generally accepted principles of
international law, declared by our Constitution as part of the law of the nation (Art. II sec. 3,
cl. 2), consuls and vice-consuls and other commercial representatives of foreign nations do
not possess the status and can not claim the privilege and immunities accorded to
ambassadors and ministers. (Wheaton, International Law, sec. 249; Kent, Commentaries, 44;
Story on the Constitution, sec. 1660; Mathews, The American Constitutional System [1932],
204, 205; Gittings vs. Crawford, C. C. Md., 1838; Taney's Dec., 1; Wilcox vs. Luco, 118 Cal.,
639; 45 Pac., 676; 2 C. J., 9 R. C. L., 161.) The only provisions touching the subject to which
we may refer are those found in the Constitution of the Philippines. Let us trace the history of
these provisions.
The report of the committee on the Judicial Power, submitted on September 29, 1934, did
not contain any provisions regarding cases affecting ambassadors, other public ministers
and consuls. The draft of the sub-committee of seven of the Sponsorship Committee,
submitted on October 20, 1934, however, contains the following provision:
Article X, Section 2. The Supreme Court shall have such original jurisdiction as may
be possessed and exercised by the present Supreme Court of the Philippine
Islands at the time of the adoption of this Constitution, which jurisdiction shall
include all cases affecting ambassadors, other foreign ministers and consuls . . . ."
The Special Committee on the Judiciary, composed principally of Delegates
Vicente J. Francisco and Norberto Romualdez, included in its report the provisions
which now appear in sections 2 and 3 of Article VIII of the Constitution. Section 2
provides:
The National Assembly shall have the power to define, prescribed, and apportion
the jurisdiction of the various courts, but may not deprive the Supreme Court of its
original jurisdiction over cases affecting ambassadors, other ministers and consuls .
. . . And the second sentence of section 3 provides:
The original jurisdiction of the Supreme Court shall include all cases affecting
ambassadors, other public ministers and consuls.
The provision in our Constitution in so far as it confers upon our Supreme Court "original
jurisdiction over cases affecting ambassadors, other public ministers and consuls" is literally
the same as that contained in clause 2, section 2 of Article III of the United States
Constitution.
In the course of the deliberation of the Constitutional Convention, some doubt was
expressed regarding the character of the grant of "original jurisdiction" to our Supreme
Court. An examination of the records of the proceedings of the Constitutional convention
show that the framers of our Constitution were familiar with the history of, and the judicial
construction placed on, the same provision of the United States Constitution. In order to
end what would have been a protracted discussion on the subject, a member of the
Special Committee on the Judiciary gave the following information to the members of the
Convention:
. . . Sr. Presidente, a fin de poder terminar con el Articulo 2, el Comite esta dispuesto a
hacer constar que la interpretacion que debe dard a la ultima parte de dicho articulo es
la misma interpretacion que siempre se ha dado a semejante disposicion en la
Constitucion de los Estados Unidos. (January 16,1935.) Without further discussion, the
provision was then and there approved.
It thus appears that the provision in question has been given a well-settled meaning in the
United States — the country of its origin. It has there received definite and hitherto
unaltered legislative and judicial interpretation. And the same meaning was ascribed to it
when incorporated in our own Constitution. To paraphrase Justice Gray of the Supreme
Court of the United States, we are justified in interpreting the provision of the Constitution in
the light of the principles and history with which its framers were familiar. (United
States vs. Wong Kin Ark [1897], 169 U. S., 649; 18 S. Ct., 456; 42 Law. ed., 890, cited with
approval in Kepner vs. United States, a case of Philippine origin [1904]; 195 U. S., 100; 49 Law.
ed., 114.)
(b) What has been said hereinabove is not unnecessary attachment to history or idolatrous
adherence to precedents. In referring to the history of this provision of our Constitution it is
realized that historical discussion while valuable is not necessarily decisive. Rationally,
however, the philosophical reason for the conclusion announced is not far to seek if certain
principles of constitutional government are borne in mind. The constitution is both a grant
of, and a limitation upon, governmental powers. In the absence of clear and unequivocal
restraint of legislative authority, the power is retained by the people and is exercisable by
their representatives in their legislature. The rule is that the legislature possess plenary power
for all purposes of civil government. A prohibition to exercise legislative power is the
exception. (Denio, C. J., in People vs. Draper, 15 N.Y., 532, 543.) These prohibitions or
restrictions are found either in the language used, or in the purpose held in view as well as
the circumstances which led to the adoption of the particular provision as part of the
fundamental law. (Ex parte Lewis, 45 Tex. Crim. Rep., 1; 73 S. W., 811; 108 Am. St. Rep., 929.)
Subject to certain limitations, the Filipino people, through their delegates, have committed
legislative power in a most general way to the National Assembly has plenary legislative
power in all matters of legislation except as limited by the constitution. When, therefore, the
28
constitution vests in the Supreme Court original jurisdiction in cases affecting ambassadors,
other public ministers and consuls, without specifying the exclusive character of the grant,
the National Assembly is not deprived of its authority to make that jurisdiction concurrent. It
has been said that popular government lives because of the inexhaustible reservoir of
power behind. It is unquestionable that the mass of powers of government is vested in the
representatives of the people, and that these representatives are no further restrained
under our system than by the express language of the instrument imposing the restraint, or
by particular provisions which, by clear intendment, have that effect. (Angara vs. Electoral
Commission, p.139, ante.) What the Constitution prohibits is merely the deprivation of the
Supreme Court of its original jurisdiction over cases affecting ambassadors, other public
ministers and consuls and while it must be admitted that original jurisdiction if made
concurrent no longer remains exclusive, it is also true that jurisdiction does not cease to be
original merely because it is concurrent.
It is also quite true that concurrent original jurisdiction in this class of cases would mean the
sharing of the Supreme Court with the most inferior courts of cases affecting ambassadors,
other public ministers and consuls such that the Supreme Court would have concurrent
jurisdiction with the lowest courts in our judicial hierarchy, the justice of the peace of the
courts, in a petty case for the instance, the violation of a municipal ordinance affecting the
parties just mentioned. However, no serious objection to these result can be seen other that
the misinterpreted unwillingness to share this jurisdiction with a court pertaining to the lowest
category in our judicial organization. Upon the other hand, the fundamental reasoning
would apply with equal force if the highest court of the land is made to take recognizance
exclusively of a case involving the violation of the municipal ordinance simply because of
the character of the parties affected. After alluding to the fact that the position of consul of
a foreign government is sometimes filled by a citizen of the United States (and this also true
in the Philippines) Chief Justice Taney, in Gittings vs. Crawford, supra, observed:
It could hardly have been the intention of the statesmen who framed our
constitution to require that one of our citizens who had a petty claim of even less
than five dollars against another citizen, who had been clothed by some foreign
government with the consular office, should be compelled to go into the Supreme
Court to have a jury summoned in order to enable him to recover it; nor could it
have been intended, that the time of that court, with all its high duties to perform,
should be taken up with the trial of every petty offense that might be committed
by a consul by any part of the United States; that consul, too, being often one of
our own citizens.
Probably, the most serious objection to the interpretation herein advocated is, that
considering the actual distribution of jurisdiction between the different courts in our
jurisdiction, there may be cases where the Supreme Court may not actually exercise either
original — whether exclusive or concurrent — or appellate jurisdiction, notwithstanding the
grant of original jurisdiction in this class of cases to the Supreme Court. If, for instance, a
criminal case is brought either in a justice of the peace court or in a Court of First Instance
against a foreign consul and no question of law is involved, it is evident that in case of
conviction, the proceedings will terminate in the Court Appeals and will not reach the
Supreme Court. In this case, the Supreme Court will be deprived of all jurisdiction in a case
affecting a consul notwithstanding the grant thereto in the Constitution of original
jurisdiction in all cases affecting consuls. This is a situation, however, created not by the
Constitution but by existing legislation, and the remedy is in the hands of the National
Assembly. The Constitution cannot deal with every casus omissus, and in the nature of
things, must only deal with fundamental principles, leaving the detail of administration and
execution to the other branches of the government. It rests with the National Assembly to
determine the inferior courts which shall exercise concurrent original jurisdiction with the
Supreme Court in cases affecting ambassadors, other public ministers and consuls,
considering the nature of the offense and irrespective of the amount of controversy. The
National Assembly may as in the United States (Cooley, Constitutional Law, 4th ed. [1931],
sec. 4, p. 156), provide for appeal to the Supreme Court in all cases affecting foreign
diplomatic and consular representatives.
Before the approval of the Constitution, jurisdiction over consuls was exercisable by our
courts. This is more so now that the Independence Law and Constitution framed and
adopted pursuant thereto are in force. The fact that the National Assembly has not
enacted any law determining what courts of the of the Philippines shall exercise concurrent
jurisdiction with the Supreme Court is of no moment. This can not mean and should not be
interpreted to mean that the original jurisdiction vested in the Supreme Court by the
Constitution is not concurrent with other national courts of inferior category.
The respondent judge of the Court of First Instance of the City of Manila having jurisdiction
to take cognizance of the criminal case brought against the petitioner, the writ of
prohibition should be denied.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5270 January 15, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
H. N. BULL, defendant-appellant.
Bruce & Lawrence, for appellant.
Office of the Solicitor-General Harvey, for appellee.
29
ELLIOTT, J.:
The appellant was convicted in the Court of First Instance of a violation of section 1 of Act
No. 55, as amended by section 1 of Act No. 275, and from the judgment entered thereon
appealed to this court, where under proper assignments of error he contends: (1) that the
complaint does not state facts sufficient to confer jurisdiction upon the court; (2) that under
the evidence the trial court was without jurisdiction to hear and determine the case; (3)
that Act No. 55 as amended is in violation of certain provisions of the Constitution of the
United States, and void as applied to the facts of this case; and (4) that the evidence is
insufficient to support the conviction.
The information alleges:
That on and for many months prior to the 2d day of December, 1908, the said H.
N. Bull was then and there master of a steam sailing vessel known as the
steamship Standard, which vessel was then and there engaged in carrying and
transporting cattle, carabaos, and other animals from a foreign port and city of
Manila, Philippine Islands; that the said accused H. N. Bull, while master of said
vessel, as aforesaid, on or about the 2d day of December, 1908, did then and
there willfully, unlawfully, and wrongly carry, transport, and bring into the port and
city of Manila, aboard said vessel, from the port of Ampieng, Formosa, six hundred
and seventy-seven (677) head of cattle and carabaos, without providing suitable
means for securing said animals while in transit, so as to avoid cruelty and
unnecessary suffering to the said animals, in this, to wit, that the said H. N. Bull,
master, as aforesaid, did then and there fail to provide stalls for said animals so in
transit and suitable means for trying and securing said animals in a proper
manner, and did then and there cause some of said animals to be tied by means
of rings passed through their noses, and allow and permit others to be transported
loose in the hold and on the deck of said vessel without being tied or secured in
stalls, and all without bedding; that by reason of the aforesaid neglect and failure
of the accused to provide suitable means for securing said animals while so in
transit, the noses of some of said animals were cruelly torn, and many of said
animals were tossed about upon the decks and hold of said vessel, and cruelly
wounded, bruised, and killed.
All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine
Commission.
Section 1 of Act No. 55, which went into effect January 1, 1901, provides that —
The owners or masters of steam, sailing, or other vessels, carrying or transporting
cattle, sheep, swine, or other animals, from one port in the Philippine Islands to
another, or from any foreign port to any port within the Philippine Islands, shall
carry with them, upon the vessels carrying such animals, sufficient forage and
 fresh water to provide for the suitable sustenance of such animals during the
ordinary period occupied by the vessel in passage from the port of shipment to
the port of debarkation, and shall cause such animals to be provided with
adequate forage and fresh water at least once in every twenty-four hours from
the time that the animals are embarked to the time of their final debarkation.
By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to section
1 thereof the following:
The owners or masters of steam, sailing, or other vessels, carrying or transporting
cattle, sheep, swine, or other animals from one port in the Philippine Islands to
another, or from any foreign port to any port within the Philippine Islands, shall
provide suitable means for securing such animals while in transit so as to avoid all
cruelty and unnecessary suffering to the animals, and suitable and proper facilities
for loading and unloading cattle or other animals upon or from vessels upon
which they are transported, without cruelty or unnecessary suffering. It is hereby
made unlawful to load or unload cattle upon or from vessels by swinging them
over the side by means of ropes or chains attached to the thorns.
Section 3 of Act No. 55 provides that —
Any owner or master of a vessel, or custodian of such animals, who knowingly and
willfully fails to comply with the provisions of section one, shall, for every such
failure, be liable to pay a penalty of not less that one hundred dollars nor more
that five hundred dollars, United States money, for each offense. Prosecution
under this Act may be instituted in any Court of First Instance or any provost court
organized in the province or port in which such animals are disembarked.
1. It is contended that the information is insufficient because it does not state that the court
was sitting at a port where the cattle were disembarked, or that the offense was
committed on board a vessel registered and licensed under the laws of the Philippine
Islands.
Act No. 55 confers jurisdiction over the offense created thereby on Courts of First Instance
or any provost court organized in the province or port in which such animals are
disembarked, and there is nothing inconsistent therewith in Act No. 136, which provides
generally for the organization of the courts of the Philippine Islands. Act No. 400 merely
extends the general jurisdiction of the courts over certain offenses committed on the high
seas, or beyond the jurisdiction of any country, or within any of the waters of the Philippine
Islands on board a ship or water craft of any kind registered or licensed in the Philippine
Islands, in accordance with the laws thereof. (U.S. vs. Fowler, 1 Phil. Rep., 614.) This
jurisdiction may be exercised by the Court of First Instance in any province into which such
ship or water upon which the offense or crime was committed shall come after the
commission thereof. Had this offense been committed upon a ship carrying a Philippine
30
registry, there could have been no doubt of the Jurisdiction of the court, because it is
expressly conferred, and the Act is in accordance with well recognized and established
public law. But the Standard was a Norwegian vessel, and it is conceded that it was not
registered or licensed in the Philippine Islands under the laws thereof. We have then the
question whether the court had jurisdiction over an offense of this character, committed on
board a foreign ship by the master thereof, when the neglect and omission which
constitutes the offense continued during the time the ship was within the territorial waters of
the United States. No court of the Philippine Islands had jurisdiction over an offenses or
crime committed on the high seas or within the territorial waters of any other country, but
when she came within 3 miles of a line drawn from the headlines which embrace the
entrance to Manila Bay, she was within territorial waters, and a new set of principles
became applicable. (Wheaton, Int. Law (Dana ed.), p. 255, note 105; Bonfils, Le Droit Int.,
sec 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the
jurisdiction of the territorial sovereign subject through the proper political agency. This
offense was committed within territorial waters. From the line which determines these waters
the Standard must have traveled at least 25 miles before she came to anchor. During that
part of her voyage the violation of the statue continued, and as far as the jurisdiction of the
court is concerned, it is immaterial that the same conditions may have existed while the
vessel was on the high seas. The offense, assuming that it originated at the port of
departure in Formosa, was a continuing one, and every element necessary to constitute it
existed during the voyage across the territorial waters. The completed forbidden act was
done within American waters, and the court therefore had jurisdiction over the subject-
matter of the offense and the person of the offender.
The offense then was thus committed within the territorial jurisdiction of the court, but the
objection to the jurisdiction raises the further question whether that jurisdiction is restricted
by the fact of the nationality of the ship. Every. Every state has complete control and
jurisdiction over its territorial waters. According to strict legal right, even public vessels may
not enter the ports of a friendly power without permission, but it is now conceded that in
the absence of a prohibition such ports are considered as open to the public ship of all
friendly powers. The exemption of such vessels from local jurisdiction while within such
waters was not established until within comparatively recent times. In 1794, Attorney-
General Bradford, and in 1796 Attorney-General Lee, rendered opinions to the effect that
"the laws of nations invest the commander of a foreign ship of war with no exemption from
the jurisdiction of the country into which he comes." (1, Op. U.S. Attys. Gen., 46, 87.) This
theory was also supported by Lord Stowell in an opinion given by him to the British
Government as late as 1820. In the leading case of the Schooner Exchange vs. McFadden
(7 Cranch (U.S.), 116, 144), Chief Justice Marshall said that the implied license under which
such vessels enter a friendly port may reasonably be construed as "containing exemption
from the jurisdiction of the sovereign within whose territory she claims the rights of
hospitality." The principle was accepted by the Geneva Arbitration Tribunal, which
announced that "the priviledge of exterritoriality accorded to vessels of war has been
admitted in the law of nations; not as an absolute right, but solely as a proceeding founded
on the principle of courtesy and mutual deference between nations."
(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec. 256;
Ortolan, Dip de la Mer, 2. C.X.)
Such vessels are therefore permitted during times of peace to come and go freely. Local
official exercise but little control over their actions, and offenses committed by their crew
are justiciable by their own officers acting under the laws to which they primarily owe
allegiance. This limitation upon the general principle of territorial sovereignty is based
entirely upon comity and convenience, and finds its justification in the fact that experience
shows that such vessels are generally careful to respect local laws and regulation which are
essential to the health, order, and well-being of the port. But comity and convenience does
not require the extension of the same degree of exemption to merchant vessels. There are
two well-defined theories as to extent of the immunities ordinarily granted to them,
According to the French theory and practice, matters happening on board a merchant
ship which do not concern the tranquillity of the port or persons foreign to the crew, are
justiciable only by the court of the country to which the vessel belongs. The French courts
therefore claim exclusive jurisdiction over crimes committed on board French merchant
vessels in foreign ports by one member of the crew against another. (See Bonfils, Le Droit Int.
(quat. ed.), secs. 624-628; Martens, Le Droit Int., tome 2, pp. 338, 339; Ortolan, Dip. de la
Mer, tit. 1, p. 292; Masse, Droit Int., tome 2, p. 63.) Such jurisdiction has never been admitted
or claim by Great Britain as a right, although she has frequently conceded it by treaties.
(Halleck, Int. Law (Baker's ed.), vol. 1, 231; British Territorial Waters Act, 1878.) Writers who
consider exterritoriality as a fact instead of a theory have sought to restrict local jurisdiction,
but Hall, who is doubtless the leading English authority, says that —
It is admitted by the most thoroughgoing asserters of the territoriality of merchant
vessels that so soon as the latter enter the ports of a foreign state they become
subject to the local jurisdiction on all points in which the interests of the country
are touched. (Hall, Int. Law, p. 263.)
The United States has adhered consistently to the view that when a merchant vessel enters
a foreign port it is subject to the jurisdiction of the local authorities, unless the local
sovereignty has by act of acquiescence or through treaty arrangements consented to
waive a portion of such jurisdiction. (15 Op. Attys. Gen., U. S., 178; 2 Moore, Int. Law Dig.,
sec. 204; article by Dean Gregory, Mich. Law Review, Vol. II, No. 5.) Chief Justice Marshall, in
the case of the Exchange, said that —
31
When merchant vessels enter for the purpose of trade, in would be obviously in
convinient and dangerous to society and would subject the laws to continual
infraction and the government to degradation if such individual merchants did
not owe temporary and local allegiance, and were not amendable to the
jurisdiction of the country.
The Supreme Court of the United States has recently said that the merchant vessels of one
country visiting the ports of another for the purpose of trade, subject themselves to the laws
which govern the ports they visit, so long as they remain; and this as well in war as in peace,
unless otherwise provided by treaty. (U. S. vs. Diekelman, 92 U. S., 520-525.)
Certain limitations upon the jurisdiction of the local courts are imposed by article 13 of the
treaty of commerce and navigation between Sweden and Norway and the United States,
of July 4, 1827, which concedes to the consul, vice-consuls, or consular agents of each
country "The right to sit as judges and arbitrators in such differences as may arise between
the captains and crews of the vessels belonging to the nation whose interests are
committed to their charge, without the interference of the local authorities, unless the
conduct of the crews or of the captains should disturb the order or tranquillity of the
country." (Comp. of Treaties in Force, 1904, p. 754.) This exception applies to controversies
between the members of the ship's company, and particularly to disputes regarding
wages. (2 Moore, Int. Law Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168 Mass., 188.) The order
and tranquillity of the country are affected by many events which do not amount to a riot
or general public disturbance. Thus an assault by one member of the crew upon another,
committed upon the ship, of which the public may have no knowledge whatever, is not by
this treaty withdrawn from the cognizance of the local authorities.
In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel" on
board the vessel in the port of Galveston, Texas. They were prosecuted before a justice of
the peace, but the United States district attorney was instructed by the Government to take
the necessary steps to have the proceedings dismissed, and the aid of the governor of
Texas was invoked with the view to "guard against a repetition of similar proceedings." (Mr.
Fish, Secretary of State, to Mr. Grip, Swedish and Norwegian charged, May 16, 1876; Moore,
Int. Law Dig.) It does not appear that this "quarrel" was of such a nature as to amount to a
breach of the criminal laws of Texas, but when in 1879 the mate for the Norwegian bark
Livingston was prosecuted in the courts of Philadelphia County for an assault and battery
committed on board the ship while lying in the port of Philadelphia, it was held that there
was nothing in the treaty which deprived the local courts of jurisdiction.
(Commonwealth vs. Luckness, 14 Phila. (Pa.), 363.) Representations were made through
diplomatic channels to the State Department, and on July 30, 1880, Mr. Evarts, Secretary of
State, wrote to Count Lewenhaupt, the Swedish and Norwegian minister, as follows:
 I have the honor to state that I have given the matter careful consideration in
connection with the views and suggestion of your note and the provisions of the
thirteenth article of the treaty of 1827 between the United States and Sweden and
Norway. The stipulations contained in the last clause of that article . . . are those
under which it is contended by you that jurisdiction is conferred on the consular
officers, not only in regard to such differences of a civil nature growing out of the
contract of engagement of the seamen, but also as to disposing of controversies
resulting from personal violence involving offense for which the party may be held
amenable under the local criminal law.
This Government does not view the article in question as susceptible of such broad
interpretation. The jurisdiction conferred upon the consuls is conceived to be
limited to their right to sit as judges or abitrators in such differences as may arise
between captains and crews of the vessels, where such differences do not involve
on the part of the captain or crew a disturbance of the order or tranquillity of the
country. When, however, a complaint is made to a local magistrate, either by the
captain or one or more of the crew of the vessel, involving the disturbance of the
order or tranquillity of the country, it is competent for such magistrate to take
cognizance of the matter in furtherance of the local laws, and under such
circumstances in the United States it becomes a public duty which the judge or
magistrate is not at liberty voluntarily to forego. In all such cases it must necessarily
be left to the local judicial authorities whether the procedure shall take place in
the United States or in Sweden to determine if in fact there had been such
disturbance of the local order and tranquillity, and if the complaint is supported
by such proof as results in the conviction of the party accused, to visit upon the
offenders such punishment as may be defined against the offense by the
municipal law of the place." (Moore, Int. Law Dig., vol. 2, p. 315.)
The treaty does not therefore deprive the local courts of jurisdiction over offenses
committed on board a merchant vessel by one member of the crew against another
which amount to a disturbance of the order or tranquillity of the country, and a fair and
reasonable construction of the language requires un to hold that any violation of criminal
laws disturbs the order or traquillity of the country. The offense with which the appellant is
charged had nothing to so with any difference between the captain and the crew. It was
a violation by the master of the criminal law of the country into whose port he came. We
thus find that neither by reason of the nationality of the vessel, the place of the commission
of the offense, or the prohibitions of any treaty or general principle of public law, are the
court of the Philippine Islands deprived of jurisdiction over the offense charged in the
information in this case.
32
It is further contended that the complaint is defective because it does not allege that the
animals were disembarked at the port of Manila, an allegation which it is claimed is
essential to the jurisdiction of the court sitting at that port. To hold with the appellant upon
this issue would be to construe the language of the complaint very strictly against the
Government. The disembarkation of the animals is not necessary in order to constitute the
completed offense, and a reasonable construction of the language of the statute confers
jurisdiction upon the court sitting at the port into which the animals are bought. They are
then within the territorial jurisdiction of the court, and the mere fact of their disembarkation
is immaterial so far as jurisdiction is concerned. This might be different if the disembarkation
of the animals constituted a constitutional element in the offense, but it does not.
It is also contended that the information is insufficient because it fails to allege that the
defendant knowingly and willfully failed to provide suitable means for securing said animals
while in transit, so as to avoid cruelty and unnecessary suffering. The allegation of the
complaint that the act was committed willfully includes the allegation that it was
committed knowingly. As said in Woodhouse vs. Rio Grande R.R. Company (67 Texas, 416),
"the word 'willfully' carries the idea, when used in connection with an act forbidden by law,
that the act must be done knowingly or intentionally; that, with knowledge, the will
consented to, designed, and directed the act." So in Wong vs. City of Astoria (13 Oregon,
538), it was said: "The first one is that the complaint did not show, in the words of the
ordinance, that the appellant 'knowingly' did the act complained of. This point, I think, was
fully answered by the respondent's counsel — that the words 'willfully' and 'knowingly'
conveyed the same meaning. To 'willfully' do an act implies that it was done by design —
done for a certain purpose; and I think that it would necessarily follow that it was 'knowingly'
done." To the same effect is Johnson vs. The People (94 Ill., 505), which seems to be on all
fours with the present case.
The evidence shows not only that the defendant's acts were knowingly done, but his
defense rests upon the assertion that "according to his experience, the system of carrying
cattle loose upon the decks and in the hold is preferable and more secure to the life and
comfort of the animals." It was conclusively proven that what was done was done
knowingly and intentionally.
In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is only
necessary to state the act or omission complained of as constituting a crime or public
offense in ordinary and concise language, without repitition. It need not necessarily be in
the words of the statute, but it must be in such form as to enable a person of common
understanding to know what is intended and the court to pronounce judgment according
to right. A complaint which complies with this requirement is good. (U.S. vs. Sarabia, 4 Phil.
Rep., 556.)
The Act, which is in the English language, impose upon the master of a vessel the duty to
"provide suitable means for securing such animals while in transit, so as to avoid all cruelty
and unnecessary suffering to the animals." The allegation of the complaint as it reads in
English is that the defendant willfully, unlawfully, and wrongfully carried the cattle "without
providing suitable means for securing said animals while in transit, so as to avoid cruelty and
unnecessary suffering to the said animals in this . . . that by reason of the aforesaid neglect
and failure of the accused to provide suitable means for securing said animals were cruelty
torn, and many of said animals were tossed about upon the decks and hold of said vessels,
and cruelty wounded, bruised, and killed."
The appellant contends that the language of the Spanish text of the information does not
charge him with failure to provide "sufficient" and "adequate" means. The words used are
"medios suficientes" and "medios adecuados." In view of the fact that the original
complaint was prepared in English, and that the word "suitable" is translatable by the words
"adecuado," "suficiente," and "conveniente," according to the context and circumstances,
we determine this point against the appellant, particularly in view of the fact that the
objection was not made in the court below, and that the evidence clearly shows a failure
to provide "suitable means for the protection of the animals."
2. The appellant's arguments against the constitutionality of Act No. 55 and the
amendment thereto seems to rest upon a fundamentally erroneous conception of the
constitutional law of these Islands. The statute penalizes acts and ommissions incidental to
the transportation of live stock between foreign ports and ports of the Philippine Islands,
and had a similar statute regulating commerce with its ports been enacted by the
legislature of one of the States of the Union, it would doubtless have been in violation of
Article I, section 3, of the Constitution of the United States. (Stubbs vs. People (Colo.), 11 L. R.
A., N. S., 1071.)
But the Philippine Islands is not a State, and its relation to the United States is controlled by
constitutional principles different from those which apply to States of the Union. The
importance of the question thus presented requires a statement of the principles which
govern those relations, and consideration of the nature and extent of the legislative power
of the Philippine Commission and the Legislature of the Philippines. After much discussion
and considerable diversity of opinion certain applicable constitutional doctrines are
established.
The Constitution confers upon the United States the express power to make war and
treaties, and it has the power possessed by all nations to acquire territory by conquest or
treaty. Territory thus acquired belongs to the United States, and to guard against the
possibility of the power of Congress to provide for its government being questioned, the
framers of the Constitution provided in express terms that Congress should have the power
"to dispose of and make all needful rules and regulations respecting territory and other
33
property belonging to the United States." (Art. IV, sec. 3, par. 3.) Upon the acquisition of the
territory by the United States, and until it is formally incorporated into the Union, the duty of
providing a government therefor devolves upon Congress. It may govern the territory by its
direct acts, or it may create a local government, and delegate thereto the ordinary powers
required for local government. (Binns vs. U. S., 194 U. S., 486.) This has been the usual
procedure. Congress has provided such governments for territories which were within the
Union, and for newly acquired territory not yet incorporated therein. It has been customary
to organize a government with the ordinary separation of powers into executive, legislative,
and judicial, and to prescribe in an organic act certain general conditions in accordance
with which the local government should act. The organic act thus became the constitution
of the government of the territory which had not been formally incorporated into the Union,
and the validity of legislation enacted by the local legislature was determined by its
conformity with the requirements of such organic act. (National Bank vs. Yankton, 11 Otto
(U. S.), 129.) To the legislative body of the local government Congress has delegated that
portion of legislative power which in its wisdom it deemed necessary for the government of
the territory, reserving, however, the right to annul the action of the local legislature and
itself legislate directly for the territory. This power has been exercised during the entire
period of the history of the United States. The right of Congress to delegate such legislative
power can no longer be seriously questioned. (Dorr vs. U. S., 195 U. S., 138; U. S. vs. Heinszen,
206 U. S., 370, 385.)
The Constitution of the United States does not by its own force operate within such territory,
although the liberality of Congress in legislating the Constitution into contiguous territory
tended to create an impression upon the minds of many people that it went there by its
own force. (Downes vs. Bidwell, 182 U. S., 289.) In legislating with reference to this territory,
the power of Congress is limited only by those prohibitions of the Constitution which go to
the very root of its power to act at all, irrespective of time or place. In all other respects it is
plenary. (De Lima vs. Bidwell, 182 U. S., 1; Downes vs. Bidwell, 182 U. S., 244;
Hawaii vs. Mankichi, 190 U. S., 197; Dorr vs. U. S., 195 U. S., 138; Rassmussen vs. U. S., 197 U. S.,
516.)
This power has been exercised by Congress throughout the whole history of the United
States, and legislation founded on the theory was enacted long prior to the acquisition of
the present Insular possessions. Section 1891 of the Revised Statutes of 1878 provides that
"The Constitution and all laws of the United States which are not locally inapplicable shall
have the same force and effect within all the organized territories, and in every Territory
hereafter organized, as elsewhere within the United States." When Congress organized a
civil government for the Philippines, it expressly provided that this section of the Revised
Statutes should not apply to the Philippine Islands. (Sec. 1, Act of 1902.)
In providing for the government of the territory which was acquired by the United States as
a result of the war with Spain, the executive and legislative authorities have consistently
proceeded in conformity with the principles above state. The city of Manila was
surrendered to the United States on August 13, 1898, and the military commander was
directed to hold the city, bay, and harbor, pending the conclusion of a peace which
should determine the control, disposition, and government of the Islands. The duty then
devolved upon the American authorities to preserve peace and protect person and
property within the occupied territory. Provision therefor was made by proper orders, and
on August 26 General Merritt assumed the duties of military governor. The treaty of peace
was signed December 10, 1898. On the 22d of December, 1898, the President announced
that the destruction of the Spanish fleet and the surrender of the city had practically
effected the conquest of the Philippine Islands and the suspension of the Spanish
sovereignty therein, and that by the treaty of peace the future control, disposition, and
government of the Islands had been ceded to the United States. During the periods of strict
military occupation, before the treaty of peace was ratified, and the interim thereafter,
until Congress acted (Santiago vs. Noueral, 214 U.S., 260), the territory was governed under
the military authority of the President as commander in chief. Long before Congress took
any action, the President organized a civil government which, however, had its legal
justification, like the purely military government which it gradually superseded, in the war
power. The military power of the President embraced legislative, executive personally, or
through such military or civil agents as he chose to select. As stated by Secretary Root in his
report for 1901 —
The military power in exercise in a territory under military occupation includes
executive, legislative, and judicial authority. It not infrequently happens that in a
single order of a military commander can be found the exercise of all three of
these different powers — the exercise of the legislative powers by provisions
prescribing a rule of action; of judicial power by determination of right; and the
executive power by the enforcement of the rules prescribed and the rights
determined.
President McKinley desired to transform military into civil government as rapidly as
conditions would permit. After full investigation, the organization of civil government was
initiated by the appointment of a commission to which civil authority was to be gradually
transferred. On September 1, 1900, the authority to exercise, subject to the approval of the
President. "that part of the military power of the President in the Philippine Islands which is
legislative in its character" was transferred from the military government to the Commission,
to be exercised under such rules and regulations as should be prescribed by the Secretary
of War, until such time as complete civil government should be established, or congress
otherwise provided. The legislative power thus conferred upon the Commission was
34
declared to include "the making of rules and orders having the effect of law for the raising
of revenue by taxes, customs duties, and imposts; the appropriation and expenditure of
public funds of the Islands; the establishment of an educational system to secure an
efficient civil service; the organization and establishment of courts; the organization and
establishment of municipal and departmental government, and all other matters of a civil
nature which the military governor is now competent to provide by rules or orders of a
legislative character." This grant of legislative power to the Commission was to be exercised
in conformity with certain declared general principles, and subject to certain specific
restrictions for the protection of individual rights. The Commission were to bear in mind that
the government to be instituted was "not for our satisfaction or for the expression of our
theoretical views, but for the happiness, peace, and prosperity of the people of the
Philippine Island, and the measures adopted should be made to conforms to their customs,
their habits, and even their prejudices, to the fullest extent consistent with the
accomplishment of the indispensable requisites of just and effective government." The
specific restrictions upon legislative power were found in the declarations that "no person
shall be deprived of life, liberty, or property without due process of law; that private
property shall not be taken for public use without just compensation; that in all criminal
prosecutions the accused shall enjoy the right to a speedy and public trial, to be informed
of the nature and cause of the accusation, to be confronted with the witnesses against
him, to have compulsory process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense; that excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishment inflicted; that no person shall be put twice
in jeopardy for the same offense or be compelled in any criminal case to be a witness
against himself; that the right to be secure against unreasonable searches and seizures shall
not be violated; that neither slavery nor involuntary servitude shall exist except as a
punishment for crime; that no bill of attainder or ex post facto law shall be passed; that no
law shall be passed abridging the freedom of speech or of the press or of the rights of the
people to peaceably assemble and petition the Government for a redress of grievances;
that no law shall be made respecting an establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of religious profession and
worship without discrimination or preference shall forever be allowed."
To prevent any question as to the legality of these proceedings being raised, the Spooner
amendment to the Army Appropriation Bill passed March 2, 1901, provided that "all military,
civil, and judicial powers necessary to govern the Philippine Islands . . . shall until otherwise
provided by Congress be vested in such person and persons, and shall be exercised in such
manner, as the President of the United States shall direct, for the establishment of civil
government, and for maintaining and protecting the inhabitants of said Islands in the free
enjoyment of their liberty, property, and religion." Thereafter, on July 4, 1901, the authority,
which had been exercised previously by the military governor, was transferred to that
official. The government thus created by virtue of the authority of the President as
Commander in Chief of the Army and Navy continued to administer the affairs of the
Islands under the direction of the President until by the Act of July 1, 1902, Congress
assumed control of the situation by the enactment of a law which, in connection with the
instructions of April 7, 1900, constitutes the organic law of the Philippine Islands.
The Act of July 1, 1902, made no substancial changes in the form of government which the
President had erected. Congress adopted the system which was in operation, and
approved the action of the President in organizing the government. Substantially all the
limitations which had been imposed on the legislative power by the President's instructions
were included in the law, Congress thus extending to the Islands by legislative act nor the
Constitution, but all its provisions for the protection of the rights and privileges of individuals
which were appropriate under the conditions. The action of the President in creating the
Commission with designated powers of government, in creating the office of the Governor-
General and Vice-Governor-General, and through the Commission establishing certain
executive departments, was expressly approved and ratified. Subsequently the action of
the President in imposing a tariff before and after the ratification of the treaty of peace was
also ratified and approved by Congress. (Act of March 8, 1902; Act of July 1, 1902;
U.S. vs. Heinszen, 206 U.S., 370; Lincoln vs. U.S., 197 U.S., 419.) Until otherwise provided by law
the Islands were to continue to be governed "as thereby and herein provided." In the future
the enacting clause of all statutes should read "By authority of the United States" instead of
"By the authority of the President." In the course of time the legislative authority of the
Commission in all parts of the Islands not inhabited by Moros or non-Christian tribes was to
be transferred to a legislature consisting of two houses — the Philippine Commission and the
Philippine Assembly. The government of the Islands was thus assumed by Congress under its
power to govern newly acquired territory not incorporated into the United States.
This Government of the Philippine Islands is not a State or a Territory, although its form and
organization somewhat resembles that of both. It stands outside of the constitutional
relation which unites the States and Territories into the Union. The authority for its creation
and maintenance is derived from the Constitution of the United States, which, however,
operates on the President and Congress, and not directly on the Philippine Government. It
is the creation of the United States, acting through the President and Congress, both
deriving power from the same source, but from different parts thereof. For its powers and
the limitations thereon the Government of the Philippines looked to the orders of the
President before Congress acted and the Acts of Congress after it assumed control. Its
organic laws are derived from the formally and legally expressed will of the President and
Congress, instead of the popular sovereign constituency which lies upon any subject
relating to the Philippines is primarily in Congress, and when it exercise such power its act is
35
from the viewpoint of the Philippines the legal equivalent of an amendment of a
constitution in the United States.
Within the limits of its authority the Government of the Philippines is a complete
governmental organism with executive, legislative, and judicial departments exercising the
functions commonly assigned to such departments. The separation of powers is as
complete as in most governments. In neither Federal nor State governments is this
separation such as is implied in the abstract statement of the doctrine. For instance, in the
Federal Government the Senate exercises executive powers, and the President to some
extent controls legislation through the veto power. In a State the veto power enables him to
exercise much control over legislation. The Governor-General, the head of the executive
department in the Philippine Government, is a member of the Philippine Commission, but as
executive he has no veto power. The President and Congress framed the government on
the model with which Americans are familiar, and which has proven best adapted for the
advancement of the public interests and the protection of individual rights and priviliges.
In instituting this form of government of intention must have been to adopt the general
constitutional doctrined which are inherent in the system. Hence, under it the Legislature
must enact laws subject to the limitations of the organic laws, as Congress must act under
the national Constitution, and the States under the national and state constitutions. The
executive must execute such laws as are constitutionally enacted. The judiciary, as in all
governments operating under written constitutions, must determine the validity of legislative
enactments, as well as the legality of all private and official acts. In performing these
functions it acts with the same independence as the Federal and State judiciaries in the
United States. Under no other constitutional theory could there be that government of laws
and not of men which is essential for the protection of rights under a free and orderly
government.
Such being the constitutional theory of the Government of the Philippine Islands, it is
apparent that the courts must consider the question of the validity of an act of the
Philippine Commission or the Philippine Legislature, as a State court considers an act of the
State legislature. The Federal Government exercises such powers only as are expressly or
impliedly granted to it by the Constitution of the United States, while the States exercise all
powers which have not been granted to the central government. The former operates
under grants, the latter subject to restrictions. The validity of an Act of Congress depends
upon whether the Constitution of the United States contains a grant of express or implied
authority to enact it. An act of a State legislature is valid unless the Federal or State
constitution expressly or impliedly prohibits its enaction. An Act of the legislative authority of
the Philippines Government which has not been expressly disapproved by Congress is valid
unless its subject-matter has been covered by congressional legislation, or its enactment
forbidden by some provision of the organic laws.
The legislative power of the Government of the Philippines is granted in general terms
subject to specific limitations. The general grant is not alone of power to legislate on certain
subjects, but to exercise the legislative power subject to the restrictions stated. It is true that
specific authority is conferred upon the Philippine Government relative to certain subjects
of legislation, and that Congress has itself legislated upon certain other subjects. These,
however, should be viewed simply as enactments on matters wherein Congress was fully
informed and ready to act, and not as implying any restriction upon the local legislative
authority in other matters. (See Opinion of Atty. Gen. of U. S., April 16, 1908.)
The fact that Congress reserved the power to annul specific acts of legislation by the
Government of the Philippine tends strongly to confirm the view that for purposes of
construction the Government of the Philippines should be regarded as one of general
instead of enumerated legislative powers. The situation was unusual. The new government
was to operate far from the source of its authority. To relieve Congress from the necessity of
legislating with reference to details, it was thought better to grant general legislative power
to the new government, subject to broad and easily understood prohibitions, and reserve
to Congress the power to annul its acts if they met with disapproval. It was therefore
provided "that all laws passed by the Government of the Philippine Islands shall be reported
to Congress, which hereby reserves the power and authority to annul the same." (Act of
Congress, July 1, 1902, sec. 86.) This provision does not suspend the acts of the Legislature of
the Philippines until approved by Congress, or when approved, expressly or by
acquiescence, make them the laws of Congress. They are valid acts of the Government of
the Philippine Islands until annulled. (Miners Bank vs. Iowa, 12 How. (U. S.), 1.)
In order to determine the validity of Act No. 55 we must then ascertain whether the
Legislature has been expressly or implication forbidden to enact it. Section 3, Article IV, of
the Constitution of the United States operated only upon the States of the Union. It has no
application to the Government of the Philippine Islands. The power to regulate foreign
commerce is vested in Congress, and by virtue of its power to govern the territory
belonging to the United States, it may regulate foreign commerce with such territory. It may
do this directly, or indirectly through a legislative body created by it, to which its power in
this respect if delegate. Congress has by direct legislation determined the duties which shall
be paid upon goods imported into the Philippines, and it has expressly authorized the
Government of the Philippines to provide for the needs of commerce by improving harbors
and navigable waters. A few other specific provisions relating to foreign commerce may be
found in the Acts of Congress, but its general regulation is left to the Government of the
Philippines, subject to the reserved power of Congress to annul such legislation as does not
meet with its approval. The express limitations upon the power of the Commission and
Legislature to legislate do not affect the authority with respect to the regulation of
commerce with foreign countries. Act No. 55 was enacted before Congress took over the
36
control of the Islands, and this act was amended by Act No. 275 after the Spooner
amendment of March 2, 1901, was passed. The military government, and the civil
government instituted by the President, had the power, whether it be called legislative or
administrative, to regulate commerce between foreign nations and the ports of the
territory. (Cross vs. Harrison, 16 How. (U.S.), 164, 190; Hamilton vs. Dillin, 21 Wall. (U.S.), 73, 87.)
This Act has remained in force since its enactment without annulment or other action by
Congress, and must be presumed to have met with its approval. We are therefore satisfied
that the Commission had, and the Legislature now has, full constitutional power to enact
laws for the regulation of commerce between foreign countries and the ports of the
Philippine Islands, and that Act No. 55, as amended by Act No. 275, is valid.
3. Whether a certain method of handling cattle is suitable within the meaning of the Act
can not be left to the judgment of the master of the ship. It is a question which must be
determined by the court from the evidence. On December 2, 1908, the defendant Bull
brought into and disembarked in the port and city of Manila certain cattle, which came
from the port of Ampieng, Formosa, without providing suitable means for securing said
animals while in transit, so as to avoid cruelty and unnecessary suffering to said animals,
contrary to the provisions of section 1 of Act No. 55, as amended by section 1 of Act No.
275. The trial court found the following facts, all of which are fully sustained by the
evidence:
That the defendant, H. N. Bull, as captain and master of the Norwegian steamer
known as the Standard, for a period of six months or thereabouts prior to the 2d
day of December, 1908, was engaged in the transportation of cattle and
carabaos from Chines and Japanese ports to and into the city of Manila,
Philippine Islands.
That on the 2d day of December, 1908, the defendant, as such master and
captain as aforesaid, brought into the city of Manila, aboard said ship, a large
number of cattle, which ship was anchored, under the directions of the said
defendant, behind the breakwaters in front of the city of Manila, in Manila Bay,
and within the jurisdiction of this court; and that fifteen of said cattle then and
there had broken legs and three others of said cattle were dead, having broken
legs; and also that said cattle were transported and carried upon said ship as
aforesaid by the defendant, upon the deck and in the hold of said ship, without
suitable precaution and care for the transportation of said animals, and to avoid
danger and risk to their lives and security; and further that said cattle were so
transported abroad said ship by the defendant and brought into the said bay,
and into the city of Manila, without any provisions being made whatever upon
said decks of said ship and in the hold thereof to maintain said cattle in a suitable
condition and position for such transportation.
 That a suitable and practicable manner in which to transport cattle abroad
steamship coming into Manila Bay and unloading in the city of Manila is by way of
individual stalls for such cattle, providing partitions between the cattle and
supports at the front sides, and rear thereof, and cross-cleats upon the floor on
which they stand and are transported, of that in case of storms, which are
common in this community at sea, such cattle may be able to stand without
slipping and pitching and falling, individually or collectively, and to avoid the
production of panics and hazard to the animals on account or cattle were
transported in this case. Captain Summerville of the steamship Taming, a very
intelligent and experienced seaman, has testified, as a witness in behalf of the
Government, and stated positively that since the introduction in the ships with
which he is acquainted of the stall system for the transportation of animals and
cattle he has suffered no loss whatever during the last year. The defendant has
testified, as a witness in his own behalf, that according to his experience the
system of carrying cattle loose upon the decks and in the hold is preferable and
more secure to the life and comfort of the animals, but this theory of the case is
not maintainable, either by the proofs or common reason. It can not be urged
with logic that, for instance, three hundred cattle supports for the feet and without
stalls or any other protection for them individually can safely and suitably carried
in times of storm upon the decks and in the holds of ships; such a theory is against
the law of nature. One animal falling or pitching, if he is untied or unprotected,
might produce a serious panic and the wounding of half the animals upon the
ship if transported in the manner found in this case.
The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty
pesos, with subsidiary imprisonment in case of insolvency, and to pay the costs. The
sentence and judgment is affirmed. So ordered.
Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5887 December 16, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.
Thos. D. Aitken for appellant.
Attorney-General Villamor for appellee.
37
ARELLANO, C. J.:
The first complaint filed against the defendant, in the Court of First Instance of Cebu, stated
that he "carried, kept, possessed and had in his possession and control, 96 kilogrammes of
opium," and that "he had been surprised in the act of selling 1,000 pesos worth prepared
opium."
The defense presented a demurrer based on two grounds, the second of which was the
more than one crime was charged in the complaint. The demurrer was sustained, as the
court found that the complaint contained two charges, one, for the unlawful possession of
opium, and the other, for the unlawful sale of opium, and, consequence of that ruling, it
ordered that the fiscal should separated one charge from the other and file a complaint for
each violation; this, the fiscal did, and this cause concerns only the unlawful possession of
opium. It is registered as No. 375, in the Court of First Instance of Cebu, and as No. 5887 on
the general docket of this court.
The facts of the case are contained in the following finding of the trial court:
The evidence, it says, shows that between 11 and 12 o'clock a. m. on the present
month (stated as August 19, 1909), several persons, among them Messrs. Jacks
and Milliron, chief of the department of the port of Cebu and internal-revenue
agent of Cebu, respectively, went abroad the steamship Erroll to inspect and
search its cargo, and found, first in a cabin near the saloon, one sack (Exhibit A)
and afterwards in the hold, another sack (Exhibit B). The sack referred to as Exhibit
A contained 49 cans of opium, and the other, Exhibit B, the larger sack, also
contained several cans of the same substance. The hold, in which the sack
mentioned in Exhibit B was found, was under the defendant's control, who
moreover, freely and of his own will and accord admitted that this sack, as well as
the other referred to in Exhibit B and found in the cabin, belonged to him. The said
defendant also stated, freely and voluntarily, that he had bought these sacks of
opium, in Hongkong with the intention of selling them as contraband in Mexico or
Vera Cruz, and that, as his hold had already been searched several times for
opium, he ordered two other Chinamen to keep the sack. Exhibit A.
It is to be taken into account that the two sacks of opium, designated as Exhibits A and B,
properly constitute the corpus delicti. Moreover, another lot of four cans of opium, marked,
as Exhibit C, was the subject matter of investigation at the trial, and with respect to which
the chief of the department of the port of Cebu testified that they were found in the part of
the ship where the firemen habitually sleep, and that they were delivered to the first officer
of the ship to be returned to the said firemen after the vessel should have left the
Philippines, because the firemen and crew of foreign vessels, pursuant to the instructions he
had from the Manila custom-house, were permitted to retain certain amounts of opium,
always provided it should not be taken shore.
And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and important
as evidence in this cause. With regard to this the internal-revenue agent testified as
follows:itc-alf
FISCAL. What is it?
WITNESS. It is a can opium which was bought from the defendant by a secret-
service agent and taken to the office of the governor to prove that the accused
had opium in his possession to sell.
On motion by the defense, the court ruled that this answer might be stricken out "because it
refers to a sale." But, with respect to this answer, the chief of the department of customs
had already given this testimony, to wit:
FISCAL. Who asked you to search the vessel?
WITNESS. The internal-revenue agent came to my office and said that a party
brought him a sample of opium and that the same party knew that there was
more opium on board the steamer, and the agent asked that the vessel be
searched.
The defense moved that this testimony be rejected, on the ground of its being hearsay
evidence, and the court only ordered that the part thereof "that there was more opium, on
board the vessel" be stricken out.
The defense, to abbreviate proceedings, admitted that the receptacles mentioned as
Exhibits A, B, and C, contained opium and were found on board the steamship Erroll, a
vessel of English nationality, and that it was true that the defendant stated that these sacks
of opium were his and that he had them in his possession.
According to the testimony of the internal-revenue agent, the defendant stated to him, in
the presence of the provincial fiscal, of a Chinese interpreter (who afterwards was not
needed, because the defendant spoke English), the warden of the jail, and four guards,
that the opium seized in the vessel had been bought by him in Hongkong, at three pesos
for each round can and five pesos for each one of the others, for the purpose of selling it,
as contraband, in Mexico and Puerto de Vera Cruz; that on the 15th the vessel arrived at
Cebu, and on the same day he sold opium; that he had tried to sell opium for P16 a can;
that he had a contract to sell an amount of the value of about P500; that the opium found
in the room of the other two Chinamen prosecuted in another cause, was his, and that he
had left it in their stateroom to avoid its being found in his room, which had already been
searched many times; and that, according to the defendant, the contents of the large
sack was 80 cans of opium, and of the small one, 49, and the total number, 129.
It was established that the steamship Erroll was of English nationality, that it came from
Hongkong, and that it was bound for Mexico, via the call ports of Manila and Cebu.
38
The defense moved for a dismissal of the case, on the grounds that the court had no
jurisdiction to try the same and the facts concerned therein did not constitute a crime. The
fiscal, at the conclusion of his argument, asked that the maximum penalty of the law be
imposed upon the defendant, in view of the considerable amount of opium seized. The
court ruled that it did not lack jurisdiction, inasmuch as the crime had been committed
within its district, on the wharf of Cebu.
The court sentenced the defendant to five years' imprisonment, to pay a fine of P10,000,
with additional subsidiary imprisonment in case of insolvency, though not to exceed one
third of the principal penalty, and to the payment of the costs. It further ordered the
confiscation, in favor of the Insular Government, of the exhibits presented in the case, and
that, in the event of an appeal being taken or a bond given, or when the sentenced
should have been served, the defendant be not released from custody, but turned over to
the customs authorities for the purpose of the fulfillment of the existing laws on immigration.
From this judgment, the defendant appealed to this court.lawphi1.net
The appeal having been heard, together with the allegations made therein by the parties,
it is found: That, although the mere possession of a thing of prohibited use in these Islands,
aboard a foreign vessel in transit, in any of their ports, does not, as a general rule, constitute
a crime triable by the courts of this country, on account of such vessel being considered as
an extension of its own nationality, the same rule does not apply when the article, whose
use is prohibited within the Philippine Islands, in the present case a can of opium, is landed
from the vessel upon Philippine soil, thus committing an open violation of the laws of the
land, with respect to which, as it is a violation of the penal law in force at the place of the
commission of the crime, only the court established in that said place itself had competent
jurisdiction, in the absence of an agreement under an international treaty.
It is also found: That, even admitting that the quantity of the drug seized, the subject matter
of the present case, was considerable, it does not appear that, on such account, the two
penalties fixed by the law on the subject, should be imposed in the maximum degree.
Therefore, reducing the imprisonment and the fine imposed to six months and P1,000,
respectively, we affirm in all other respects the judgment appealed from, with the costs of
this instance against the appellant. So ordered.
Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13005 October 10, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
AH SING, defendant-appellant.
Antonio Sanz for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Cebu finding the
defendant guilty of a violation of section 4 of Act No. 2381 (the Opium Law), and
sentencing him to two years imprisonment, to pay a fine of P300 or to suffer subsidiary
imprisonment in case of insolvency, and to pay the costs.
The following facts are fully proven: The defendant is a subject of China employed as a
fireman on the steamship Shun Chang. The Shun Chang is a foreign steamer which arrived
at the port of Cebu on April 25, 1917, after a voyage direct from the port of Saigon. The
defendant bought eight cans of opium in Saigon, brought them on board the
steamship Shun Chang, and had them in his possession during the trip from Saigon to Cebu.
When the steamer anchored in the port of Cebu on April 25, 1917, the authorities on
making a search found the eight cans of opium above mentioned hidden in the ashes
below the boiler of the steamer's engine. The defendant confessed that he was the owner
of this opium, and that he had purchased it in Saigon. He did not confess, however, as to
his purpose in buying the opium. He did not say that it was his intention to import the
prohibited drug into the Philippine Islands. No other evidence direct or indirect, to show that
the intention of the accused was to import illegally this opium into the Philippine Islands, was
introduced.
Has the crime of illegal importation of opium into the Philippine Islands been proven?
Two decisions of this Court are cited in the judgment of the trial court, but with the
intimation that there exists inconsistently between the doctrines laid down in the two cases.
However, neither decision is directly a precedent on the facts before us.
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion handed
down by the Chief Justice, it is found —
That, although the mere possession of a thing of prohibited use in these
Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a
general rule, constitute a crime triable by the courts of this country, on account of
such vessel being considered as an extension of its own nationality, the same rule
does no apply when the article, whose use is prohibited within the Philippine
Islands, in the present case a can of opium, is landed from the vessel upon
Philippine soil, thus committing an open violation of the laws of the land, with
39
respect to which, as it is a violation of the penal law in force at the place of the
commission of the crime, only the court established in the said place itself has
competent jurisdiction, in the absence of an agreement under an international
treaty.1awphil.net
A marked difference between the facts in the Look Chaw case and the facts in the present
instance is readily observable. In the Look Chaw case, the charge case the illegal
possession and sale of opium — in the present case the charge as illegal importation of
opium; in the Look Chaw case the foreign vessel was in transit — in the present case the
foreign vessel was not in transit; in the Look Chaw case the opium was landed from the
vessel upon Philippine soil — in the present case of United States vs. Jose ([1916], 34 Phil.,
840), the main point, and the one on which resolution turned, was that in a prosecution
based on the illegal importation of opium or other prohibited drug, the Government must
prove, or offer evidence sufficient to raise a presumption, that the vessel from which the
drug is discharged came into Philippine waters from a foreign country with the drug on
board. In the Jose case, the defendants were acquitted because it was not proved that
the opium was imported from a foreign country; in the present case there is no question but
what the opium came from Saigon to Cebu. However, in the opinion in the Jose case, we
find the following which may be obiter dicta, but which at least is interesting as showing the
view of the writer of the opinion:
The importation was complete, to say the least, when the ship carrying it
anchored in Subic Bay. It was not necessary that the opium discharged or that it
be taken from the ship. It was sufficient that the opium was brought into the
waters of the Philippine Islands on a boat destined for a Philippine port and which
subsequently anchored in a port of the Philippine Islands with intent to discharge
its cargo.
Resolving whatever doubt was exist as to the authority of the views just quoted, we return to
an examination of the applicable provisions of the law. It is to be noted that section 4 of
Act No. 2381 begins, "Any person who shall unlawfully import or bring any prohibited drug
into the Philippine Islands." "Import" and "bring" are synonymous terms. The Federal Courts of
the United States have held that the mere act of going into a port, without breaking bulk,
is prima facie evidence of importation. (The Mary [U. S.], 16 Fed. Cas., 932, 933.) And again,
the importation is not the making entry of goods at the custom house, but merely the
bringing them into port; and the importation is complete before entry of the Custom House.
(U. S. vs. Lyman [U. S.], 26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As
applied to the Opium Law, we expressly hold that any person unlawfully imports or brings
any prohibited drug into the Philippine Islands, when the prohibited drug is found under this
person's control on a vessel which has come direct from a foreign country and is within the
jurisdictional limits of the Philippine Islands. In such case, a person is guilty of illegal
importation of the drug unless contrary circumstances exist or the defense proves otherwise.
Applied to the facts herein, it would be absurb to think that the accused was merely
carrying opium back and forth between Saigon and Cebu for the mere pleasure of so
doing. It would likewise be impossible to conceive that the accused needed so large an
amount of opium for his personal use. No better explanation being possible, the logical
deduction is that the defendant intended this opium to be brought into the Philippine
Islands. We accordingly find that there was illegal importation of opium from a foreign
country into the Philippine Islands. To anticipate any possible misunderstanding, let it be
said that these statements do not relate to foreign vessels in transit, a situation not present.
The defendant and appellant, having been proved guilty beyond a reasonable doubt as
charged and the sentence of the trial court being within the limits provided by law, it results
that the judgment must be affirmed with the costs of this instance against the appellant. So
ordered.
Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 17958 February 27, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery
and Captain Kidd and Bartholomew Roberts gripped the imagination, when grostesque
brutes like Blackbeard flourished, seem far away in the pages of history and romance.
Nevertheless, the record before us tells a tale of twentieth century piracy in the south seas,
but stripped of all touches of chivalry or of generosity, so as to present a horrible case of
rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another
Dutch possession. In one of the boats was one individual, a Dutch subject, and in the other
boat eleven men, women, and children, likewise subjects of Holland. After a number of
days of navigation, at about 7 o'clock in the evening, the second boat arrived between
the Islands of Buang and Bukid in the Dutch East Indies. There the boat was surrounded by
six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once
on the Dutch boat, too for themselves all of the cargo, attacked some of the men, and
40
brutally violated two of the women by methods too horrible to the described. All of the
persons on the Dutch boat, with the exception of the two young women, were again
placed on it and holes were made in it, the idea that it would submerge, although as a
matter of fact, these people, after eleven days of hardship and privation, were succored
violating them, the Moros finally arrived at Maruro, a Dutch possession. Two of the Moro
marauder were Lol-lo, who also raped one of the women, and Saraw. At Maruro the two
women were able to escape.
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine
Islands. There they were arrested and were charged in the Court of First Instance of Sulu
with the crime of piracy. A demurrer was interposed by counsel de officio for the Moros,
based on the grounds that the offense charged was not within the jurisdiction of the Court
of First Instance, nor of any court of the Philippine Islands, and that the facts did not
constitute a public offense, under the laws in force in the Philippine Islands. After the
demurrer was overruled by the trial judge, trial was had, and a judgment was rendered
finding the two defendants guilty and sentencing each of them to life imprisonment
(cadena perpetua), to return together with Kinawalang and Maulanis, defendants in
another case, to the offended parties, the thirty-nine sacks of copras which had been
robbed, or to indemnify them in the amount of 924 rupees, and to pay a one-half part of
the costs.
A very learned and exhaustive brief has been filed in this court by the attorney de officio. By
a process of elimination, however, certain questions can be quickly disposed of.
The proven facts are not disputed. All of the elements of the crime of piracy are present.
Piracy is robbery or forcible depredation on the high seas, without lawful authority and
done animo furandi, and in the spirit and intention of universal hostility.
It cannot be contended with any degree of force as was done in the lover court and as is
again done in this court, that the Court of First Instance was without jurisdiction of the case.
Pirates are in law hostes humani generis. Piracy is a crime not against any particular state
but against all mankind. It may be punished in the competent tribunal of any country
where the offender may be found or into which he may be carried. The jurisdiction of
piracy unlike all other crimes has no territorial limits. As it is against all so may it be punished
by all. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit
of a foreign state, "for those limits, though neutral to war, are not neutral to crimes." (U.S. vs.
Furlong [1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for decision for the first
time is whether or not the provisions of the Penal Code dealing with the crime of piracy are
still in force. Article 153 to 156 of the Penal Code reads as follows:
 ART. 153. The crime of piracy committed against Spaniards, or the subjects of
another nation not at war with Spain, shall be punished with a penalty ranging
from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at
war with Spain, it shall be punished with the penalty of presidio mayor.
ART. 154. Those who commit the crimes referred to in the first paragraph of the
next preceding article shall suffer the penalty of cadena perpetua or death, and
those who commit the crimes referred to in the second paragraph of the same
article, from cadena temporal to cadena perpetua:
1. Whenever they have seized some vessel by boarding or firing upon the
same.
2. Whenever the crime is accompanied by murder, homicide, or by any
of the physical injuries specified in articles four hundred and fourteen
and four hundred and fifteen and in paragraphs one and two of article
four hundred and sixteen.
3. Whenever it is accompanied by any of the offenses against chastity
specified in Chapter II, Title IX, of this book.
4. Whenever the pirates have abandoned any persons without means of
saving themselves.
5. In every case, the captain or skipper of the pirates.
ART. 155. With respect to the provisions of this title, as well as all others of this code,
when Spain is mentioned it shall be understood as including any part of the
national territory.
ART. 156. For the purpose of applying the provisions of this code, every person,
who, according to the Constitution of the Monarchy, has the status of a Spaniard
shall be considered as such.
The general rules of public law recognized and acted on by the United States relating to
the effect of a transfer of territory from another State to the United States are well-known.
The political law of the former sovereignty is necessarily changed. The municipal law in so
far as it is consistent with the Constitution, the laws of the United States, or the
characteristics and institutions of the government, remains in force. As a corollary to the
main rules, laws subsisting at the time of transfer, designed to secure good order and
peace in the community, which are strictly of a municipal character, continue until by
direct action of the new government they are altered or repealed. (Chicago, Rock Islands,
etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)
These principles of the public law were given specific application to the Philippines by the
Instructions of President McKinley of May 19, 1898, to General Wesley Meritt, the
Commanding General of the Army of Occupation in the Philippines, when he said:
41
Though the powers of the military occupant are absolute and supreme, and
immediately operate upon the political condition of the inhabitants, the municipal
laws of the conquered territory, such as affect private rights of person and
property, and provide for the punishment of crime, are considered as continuing
in force, so far as they are compatible with the new order of things, until they are
suspended or superseded by the occupying belligerent; and practice they are
not usually abrogated, but are allowed to remain in force, and to be administered
by the ordinary tribunals, substantially as they were before the occupations. This
enlightened practice is so far as possible, to be adhered to on the present
occasion. (Official Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also
General Merritt Proclamation of August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy
were meant to include the Philippine Islands. Article 156 of the Penal Code in relation to
article 1 of the Constitution of the Spanish Monarchy, would also make the provisions of the
Code applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by
the civil law, and he has never been disputed. The specific provisions of the Penal Code are
similar in tenor to statutory provisions elsewhere and to the concepts of the public law. This
must necessarily be so, considering that the Penal Code finds its inspiration in this respect in
the Novelas, the Partidas, and the Novisima Recopilacion.
The Constitution of the United States declares that the Congress shall have the power to
define and punish piracies and felonies committed on the high seas, and offenses against
the law of nations. (U.S. Const. Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute
books the necessary ancillary legislation, provided that whoever, on the high seas, commits
the crime of piracy as defined by the law of nations, and is afterwards brought into or
found in the United States, shall be imprisoned for life. (U.S. Crim. Code, sec. 290; penalty
formerly death: U.S. Rev. Stat., sec. 5368.) The framers of the Constitution and the members
of Congress were content to let a definition of piracy rest on its universal conception under
the law of nations.
It is evident that the provisions of the Penal Code now in force in the Philippines relating to
piracy are not inconsistent with the corresponding provisions in force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical
construction of articles of the Penal Code, like the articles dealing with the crime of piracy,
would be that wherever "Spain" is mentioned, it should be substituted by the words "United
States" and wherever "Spaniards" are mentioned, the word should be substituted by the
expression "citizens of the United States and citizens of the Philippine Islands." somewhat
similar reasoning led this court in the case of United States vs. Smith ([1919], 39 Phil., 533) to
give to the word "authority" as found in the Penal Code a limited meaning, which would no
longer comprehend all religious, military, and civil officers, but only public officers in the
Government of the Philippine Islands.
Under the construction above indicated, article 153 of the Penal Code would read as
follows:
The crime of piracy committed against citizens of the United States and citizens of
the Philippine Islands, or the subjects of another nation not at war with the United
States, shall be punished with a penalty ranging from cadena temporal to
cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at
war with the United States, it shall be punished with the penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime of piracy, notably
articles 153 and 154, to be still in force in the Philippines.
The crime falls under the first paragraph of article 153 of the Penal Code in relation to
article 154. There are present at least two of the circumstances named in the last cited
article as authorizing either cadena perpetua or death. The crime of piracy was
accompanied by (1) an offense against chastity and (2) the abandonment of persons
without apparent means of saving themselves. It is, therefore, only necessary for us to
determine as to whether the penalty of cadena perpetua or death should be imposed. In
this connection, the trial court, finding present the one aggravating circumstance of
nocturnity, and compensating the same by the one mitigating circumstance of lack of
instruction provided by article 11, as amended, of the Penal Code, sentenced the accused
to life imprisonment. At least three aggravating circumstances, that the wrong done in the
commission of the crime was deliberately augmented by causing other wrongs not
necessary for its commission, that advantage was taken of superior strength, and that
means were employed which added ignominy to the natural effects of the act, must also
be taken into consideration in fixing the penalty. Considering, therefore, the number and
importance of the qualifying and aggravating circumstances here present, which cannot
be offset by the sole mitigating circumstance of lack of instruction, and the horrible nature
of the crime committed, it becomes our duty to impose capital punishment.
The vote upon the sentence is unanimous with regard to the propriety of the imposition of
the death penalty upon the defendant and appellant Lo-lo (the accused who raped on of
the women), but is not unanimous with regard to the court, Mr. Justice Romualdez, registers
his nonconformity. In accordance with provisions of Act No. 2726, it results, therefore, that
the judgment of the trial court as to the defendant and appellant Saraw is affirmed, and is
reversed as to the defendant and appellant Lol-lo, who is found guilty of the crime of
piracy and is sentenced therefor to be hung until dead, at such time and place as shall be
fixed by the judge of first instance of the Twenty-sixth Judicial District. The two appellants
together with Kinawalang and Maulanis, defendants in another case, shall indemnify jointly
42
and severally the offended parties in the equivalent of 924 rupees, and shall pay a one-half
part of the costs of both instances. So ordered.
Araullo, C.J., Johnson, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18924 October 19, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,
vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.
Attorney-General Villa-Real for appellant.
Eduardo Gutierrez Repide for appellee.
ROMUALDEZ, J.:
In this appeal the Attorney-General urges the revocation of the order of the Court of First
Instance of Manila, sustaining the demurrer presented by the defendant to the information
that initiated this case and in which the appellee is accused of having illegally smoked
opium, aboard the merchant vessel Changsa of English nationality while said vessel was
anchored in Manila Bay two and a half miles from the shores of the city.
The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and
dismissed the case.
The question that presents itself for our consideration is whether such ruling is erroneous or
not; and it will or will not be erroneous according as said court has or has no jurisdiction over
said offense.
The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the
one herein involved, committed aboard merchant vessels anchored in our jurisdiction
waters. 1awph!l.net
There are two fundamental rules on this particular matter in connection with International
Law; to wit, the French rule, according to which crimes committed aboard a foreign
merchant vessels should not be prosecuted in the courts of the country within whose
territorial jurisdiction they were committed, unless their commission affects the peace and
security of the territory; and the English rule, based on the territorial principle and followed in
the United States, according to which, crimes perpetrated under such circumstances are in
general triable in the courts of the country within territory they were committed. Of this two
rules, it is the last one that obtains in this jurisdiction, because at present the theories and
jurisprudence prevailing in the United States on this matter are authority in the Philippines
which is now a territory of the United States.
In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116),
Chief Justice Marshall said:
. . . When merchant vessels enter for the purposes of trade, it would be obviously
inconvenient and dangerous to society, and would subject the laws to continual
infraction, and the government to degradation, if such individuals or merchants
did not owe temporary and local allegiance, and were not amenable to the
jurisdiction of the country. . . .
In United States vs. Bull (15 Phil., 7), this court held:
. . . No court of the Philippine Islands had jurisdiction over an offense or crime
committed on the high seas or within the territorial waters of any other country,
but when she came within three miles of a line drawn from the headlands, which
embrace the entrance to Manila Bay, she was within territorial waters, and a new
set of principles became applicable. (Wheaton, International Law [Dana ed.], p.
255, note 105; Bonfils, Le Droit Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The
ship and her crew were then subject to the jurisdiction of the territorial sovereign
subject to such limitations as have been conceded by that sovereignty through
the proper political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs.
Keeper of the Common Jail (120 U.., 1), wherein it was said that:
. . . The principle which governs the whole matter is this: Disorder which disturb only
the peace of the ship or those on board are to be dealt with exclusively by the
sovereignty of the home of the ship, but those which disturb the public peace
may be suppressed, and, if need be, the offenders punished by the proper
authorities of the local jurisdiction. It may not be easy at all times to determine
which of the two jurisdictions a particular act of disorder belongs. Much will
undoubtedly depend on the attending circumstances of the particular case, but
all must concede that felonious homicide is a subject for the local jurisdiction, and
that if the proper authorities are proceeding with the case in the regular way the
consul has no right to interfere to prevent it.
Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:
Although the mere possession of an article of prohibited use in the Philippine
Islands, aboard a foreign vessel in transit in any local port, does not, as a general
rule, constitute a crime triable by the courts of the Islands, such vessels being
considered as an extension of its own nationality, the same rule does not apply
when the article, the use of which is prohibited in the Islands, is landed from the
vessels upon Philippine soil; in such a case an open violation of the laws of the
land is committed with respect to which, as it is a violation of the penal law in
force at the place of the commission of the crime, no court other than that
43
established in the said place has jurisdiction of the offense, in the absence of an
agreement under an international treaty.
As to whether the United States has ever consented by treaty or otherwise to renouncing
such jurisdiction or a part thereof, we find nothing to this effect so far as England is
concerned, to which nation the ship where the crime in question was committed belongs.
Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625, Malloy says the
following:
There shall be between the territories of the United States of America, and all the
territories of His Britanic Majesty in Europe, a reciprocal liberty of commerce. The
inhabitants of the two countries, respectively, shall have liberty freely and securely
to come with their ships and cargoes to all such places, ports and rivers, in the
territories aforesaid, to which other foreigners are permitted to come, to enter into
the same, and to remain and reside in any parts of the said territories, respectively;
also to hire and occupy houses and warehouses for the purposes of their
commerce; and, generally, the merchants and traders of each nation
respectively shall enjoy the most complete protection and security for their
commerce, but subject always to the laws and statutes of the two countries,
respectively. (Art. 1, Commerce and Navigation Convention.)
We have seen that the mere possession of opium aboard a foreign vessel in transit was held
by this court not triable by or courts, because it being the primary object of our Opium Law
to protect the inhabitants of the Philippines against the disastrous effects entailed by the
use of this drug, its mere possession in such a ship, without being used in our territory, does
not being about in the said territory those effects that our statute contemplates avoiding.
Hence such a mere possession is not considered a disturbance of the public order.
But to smoke opium within our territorial limits, even though aboard a foreign merchant ship,
is certainly a breach of the public order here established, because it causes such drug to
produce its pernicious effects within our territory. It seriously contravenes the purpose that
our Legislature has in mind in enacting the aforesaid repressive statute. Moreover, as the
Attorney-General aptly observes:
. . . The idea of a person smoking opium securely on board a foreign vessel at
anchor in the port of Manila in open defiance of the local authorities, who are
impotent to lay hands on him, is simply subversive of public order. It requires no
unusual stretch of the imagination to conceive that a foreign ship may come into
the port of Manila and allow or solicit Chinese residents to smoke opium on board.
The order appealed from is revoked and the cause ordered remanded to the court of
origin for further proceedings in accordance with law, without special findings as to costs.
So ordered.
Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1988 February 24, 1948
JESUS MIQUIABAS, petitioner,
vs.
COMMANDING GENERAL, PHILIPPINE-RYUKYUS COMMAND, UNITED STATES
ARMY, respondents.
Lorenzo Sumulong and Esteban P. Garcia for petitioner.
J. A. Wolfson for respondent.
MORAN, C.J.:
This is a petition for a writ of habeas corpus filed by Jesus Miquiabas against the
Commanding General Philippine-Ryukyus Command, United States Army, who is alleged to
have petitioner under custody and to have appointed a General Court-Martial to try
petitioner in connection with an offense over which the said court has no jurisdiction.
Petitioner is a Filipino citizen and a civilian employee of the United States Army in the
Philippines, who has been charged with disposing in the Port of Manila Area of things
belonging to the United States Army, in violation of the 94th Article of War of the United
States. He has been arrested for that reason and a General Court-Martial appointed by
respondent tried and found him guilty and sentenced him to 15 years imprisonment. This
sentence, however, is not yet final for it is still subject to review.
It may be stated as a rule that the Philippines, being a sovereign nation, has jurisdiction over
all offenses committed within its territory, but it may, by treaty or by agreement, consent
that the United States or any other foreign nation, shall exercise jurisdiction over certain
offenses committed within certain portions of said territory. On March 11, 1947, the Republic
of the Philippines and the Government of the United States of America, entered into an
agreement concerning military bases, and Article XIII thereof is as follows:
JURISDICTION
1. The Philippines consents that the United States shall have the right to exercise
jurisdiction over the following offenses:
(a) Any offense committed by any person within any base except where
the offender and offended parties are both Philippine citizens (not
members of the armed forces of the United States on active duty) or the
offense is against the security of the Philippines;
(b) Any offense committed outside the bases by any member of the
armed forces of the United States in which the offended party is also a
member of the armed forces of the United States; and
44
(c) Any offense committed outside the bases by any member of the
armed forces of the United States against the security of the United
States.
2. The Philippines shall have the right to exercise jurisdiction over all other offenses
committed outside the bases by any member of the armed forces of the United
States.
3. Whenever for special reasons the United States may desire not to exercise the
jurisdiction reserved to it in paragraphs 1 and 6 of this Article, the officer holding
the offender in custody shall so notify the fiscal (prosecuting attorney) of the city
or province in which the offense has been committed within ten days after his
arrest, and in such case the Philippines shall exercise jurisdiction.
4. Whenever for special reasons the Philippines may desire not to exercise the
jurisdiction reserved to it in paragraph 2 of this Article, the fiscal (prosecuting
attorney) of the city or province where the offense has been committed shall so
notify the officer holding the offender in custody within ten days after his arrest,
and in such a case the United States shall be free to exercise jurisdiction. If any
offense falling under paragraph 2 of this article is committed by any member of
the armed forces of the United States.
(a) While engaged in the actual performance of a specific military duty,
or
(b) during a period of national emergency declared by either
Government and the fiscal (prosecuting attorney) so finds from the
evidence, he shall immediately notify the officer holding the offender in
custody that the United States is free to exercise jurisdiction. In the event
the fiscal (prosecuting attorney) finds that the offense was not
committed in the actual performance of a specific military duty, the
offender's commanding officer shall have the right to appeal from such
finding to the Secretary of Justice within ten days from the receipt of the
decision of the fiscal and the decision of the Secretary of Justice shall be
final.
5. In all cases over which the Philippines exercises jurisdiction the custody of the
accused, pending trial and final judgment, shall be entrusted without delay to the
commanding officer of the nearest base, who shall acknowledge in writing that
such accused has been delivered to him for custody pending trial in a competent
court of the Philippines and that he will be held ready to appear and will be
produced before said court when required by it. The commanding officer shall be
furnished by the fiscal (prosecuting attorney) with a copy of the information
against the accused upon the filing of the original in the competent court.
 6. Notwithstanding the foregoing provisions, it is naturally agreed that in time of
war the United States shall have the right to exercise exclusive jurisdiction over any
offenses which may be committed by members of the armed forces of the United
States in the Philippines.
7. The United States agrees that it will not grant asylum in any of the bases to any
person fleeing from the lawful jurisdiction of the Philippines. Should such person be
found in any base, he will be surrendered on demand to the competent
authorities of the Philippines.
8. In every case in which jurisdiction over an offense is exercised by the United
States, the offended party may institute a separate civil action against the
offender in the proper court of the Philippines to enforce the civil liability which
under the laws of the Philippines may arise from the offense.
Under paragraph 1 (a), the General Court-Martial would have jurisdiction over the criminal
case against petitioner if the offense had been committed within a base. Under paragraph
1 (b), if the offense had been committed outside a base, still the General Court-Martial
would have jurisdiction if the offense had been committed by a "member of the armed
forces of the United States" there being no question that the offended party in this case is
the United States. It is not necessary therefore, to consider whether the offense is against
"the security of the United States" under paragraph 1 (c), or whether petitioner committed it
in "the actual performance of a specific military duty" or in time of a declared "national
emergency" under paragraph 4, or whether we are still in a state of war under paragraph
6, for in all these instances the military jurisdiction depends also upon whether the offender
is a member of the armed forces of the United States. We shall then determine in this case
(1) whether the offense has been committed within or without a base, and, in the second
instance, (2) whether the offender is or is not a member of the armed forces of the United
States.
As to the first question, Article XXVI of the Agreement provides that "bases are those area
named in Annex A and Annex B and such additional areas as may be acquired for military
purposes pursuant to the terms of this Agreement." Among the areas specified in Annexes A
and B, there is none that has reference to the Port Area of Manila where the offense has
allegedly been committed. On the contrary, it appears in Annex A that "army
communications system" is included, but with "the deletion of all stations in the Port of
Manila Area."
Paragraph 2 of Article XXI is invoked by respondent. The whole article is as follows:
TEMPORARY INSTALLATIONS
1. It is mutually agreed that the United States shall retain the right to occupy
temporary quarters and installations now existing outside the bases mentioned in
Annex A and Annex B, for such reasonable time, not exceeding two years, as may
45
be necessary to develop adequate facilities within the bases for the United States
armed forces. If circumstances require an extension of time, such a period will be
fixed by mutual agreement of the two Governments; but such extension shall not
apply to the existing temporary quarters and installations within the limits of the
City of Manila and shall in no case exceed a period of three years.
2. Notwithstanding the provisions of the preceding paragraph, the Port of Manila
reservation with boundaries as of 1941 will be available for use to the United States
armed forces until such time as other arrangements can be made for the supply
of the bases by mutual agreement of the two Governments.
3. The terms of this agreement pertaining to bases shall be applicable to
temporary quarters and installations referred to in paragraph 1 of this article while
they are so occupied by the armed forces of the United States; provided, that
offenses committed within the temporary quarters and installations located within
the present limits of the City of Manila shall not be considered as offenses within
the bases but shall be governed by the provisions of Article XIII, paragraphs 2 and
4, except that the election not to exercise the jurisdiction reserved to the
Philippines shall be made by the Secretary of Justice. It is agreed that the United
States shall have full use and full control of all these quarters and installations while
they are occupied by the armed forces of the United States, including the
exercise of such measures as may be necessary to police said quarters for the
security of the personnel and property therein.
The subject matter of this article, as indicated by its heading, is "Temporary Installations."
Paragraph 1 refers to temporary quarters and installations existing outside the bases
specified in Annex A and Annex B, which may be retained by the United States armed
forces for such reasonable time as may be necessary not exceeding two years in duration,
extendible fro not more than three years, the extension not being applicable to existing
temporary quarters and installations within the limits of the City of Manila.
Paragraph 2, of Article XXI, refers to the Port of Manila Reservation, which will be available
for use to the United States armed forces, also as a temporary quarters and installations, its
temporariness not being for a definite period of time, but "until such time as other
arrangements can be made for supply of the bases by mutual agreement of the two
Governments." There is in paragraph 2 absolutely nothing that may be construed as placing
the Port of Manila Reservation in the category of a permanent base.
Paragraph 3, of Article XXI, provides "that offenses committed within the temporary quarters
and installations located within the present limits of the City of Manila shall not be
considered as offenses within the bases but shall be governed by the provisions of Article
XIII, paragraphs 2 and 4." Therefore, the offense at bar cannot be considered as committed
within, but without, a base, since it has been committed in the Port of Manila Area, which is
not one of the bases mentioned in Annexes A and B to the Agreement, and is merely
temporary quarters located within the present limits of the City of Manila.
The next inquiry is whether or not the offender may be considered as a member of the
armed forces of the United States under Article XIII, paragraph 1 (b). As above stated,
petitioner is a Filipino citizen and a civilian employee of the United States Army in the
Philippines. Under the terms of the Agreement, a civilian employee cannot be considered
as a member of the armed forces of the United States. Articles XI, XVI and XVIII of the
Agreement make mention of civilian employees separately from members of the armed
forces of the United States, which is a conclusive indication that under said Agreement
armed forces do not include civilian employees.
Respondent invokes Articles II of the Articles of War of the United States, which enumerates,
among the persons subject to military law, persons accompanying or serving with the
armies of the United States. But this case should be decided not under the Articles of War,
but under the terms of the Base Agreement between the United States and the Philippines.
And not because a person is subject to military law under the Articles of War does he
become, for that reason alone, a member of the armed forces under the Base Agreement.
And even under the Articles of War, the mere fact that a civilian employee is in the service
of the United States Army does not make him a member of the armed forces of the United
States. Otherwise, it would have been necessary for said Article to enumerate civilian
employees separately from members of the armed forces of the United States.
Respondent maintains that petitioner has no cause of action because the Secretary of
Justice had not notified the officer holding the petitioner in custody whether or not the
Philippines desired to retain jurisdiction under Article XXI, paragraph 3, of the Military Base
Agreement. It is sufficient to state in this connection that in cases like the present where the
offender is a civilian employee and not a member of the Unites States armed forces, no
waiver can be made either by the prosecuting attorney of by the Secretary of Justice,
under paragraphs 2 and 4 of Article XIII in connection with paragraph 3 of Article XXI, of the
Agreement.
We are, therefore, of the opinion and so hold, that the General Court-Martial appointed by
respondent has no jurisdiction to try petitioner for the offense allegedly committed by him
and, consequently, the judgment rendered by said court sentencing the petitioner to 15
years' imprisonment is null and void for lack of jurisdiction.
It is ordered that petitioner be released immediately by respondent without prejudice to
any criminal action which may be instituted in the proper court of the Philippines.
Let a copy of this decision be sent immediately to the Honorable, Secretary of Justice.
Paras, Feria, Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason, JJ, concur.
46
Separate Opinions
PERFECTO, J., concurring:
One of the attributes of national sovereignty is the power to try and punish offenses,
criminal and otherwise. The exercise of that power is, by virtue of express provision of our
Constitution, vested in the Supreme Court and in inferior courts established by law. (Sec. 1,
Art. VIII) The fundamental law refers to inferior courts created by an enactment of a
national legislature, Assembly or Congress, not to foreign courts martial, created by foreign
countries.
All this is in accordance with elemental principles of political law.
If petitioner is liable for a criminal offense, according to our laws, the jurisdiction to try him
belongs to a justice of the peace or municipal court or to a court of first instance.
The jurisdiction can be transferred to other courts by virtue of a law that may be enacted to
said effect. The law, to be effective, must not violate the constitutional Bill of Rights, among
them the guarantee of fair trial in favor of an accused, the equal protection of the law, the
due process of law, the guarantees against illegal detentions and searches, and others.
Petitioner is a Filipino citizen and a civilian employee of the U. S. Army, rendering services in
the Philippines. He attacks the power of the Commanding General, Philippine Ryukus
Command, U.S. Army, to have him under military custody and tried by a general court-
martial of said army. Respondent invokes, in opposing the petition, the provisions of the
agreement on military Bases entered into by the Republic of the Philippines and the
government of the United States of America on March 14, 1947.
The agreement appears to be a concession to two weaknesses: the American distrust in
Philippine tribunals and Filipino yielding to much distrust; on one hand, undisguised
prejudice, — national, racial, or otherwise, — on the other, meek submission to the natural
consequences of an unreasonable prejudice; on one side, the haughtiness of a powerful
nation, proud in the consciousness of its power, on the other, the moral surrender of a new
nation, not yet so sure in the exercise to their fullness of sovereign prerogatives. Extra-
territoriality is wrong per se.
It is, therefore, assailable on two opposing fronts. On constitutional ground, it is hardly
defensible.
The Bill of Rights has been embodied in the Constitution for the protection of all human
beings within the territorial jurisdiction of the Philippines. All persons covered by the waivers
made in the agreement, whether Americans or Filipinos, whether citizens or aliens, are
denied the constitutional guarantee of the equal protection of the law. Their fundamental
rights are safeguarded by the Constitution, and the agreement places them outside the
Constitution.
Our conclusion is, therefore, that the agreement in question, so far as it stipulates waiver of
the jurisdiction of our courts of justice on the class of persons mentioned therein, is null and
void, being in open conflict with clear provisions of our fundamental law.
Upon this ground, petitioner is entitled to be released by respondent and by the court
martial which tried him.
Even in the erroneous hypothesis that the waiver clauses of the agreement are valid, we
concur in the reasoning of the Chief Justice in support of the position that petitioner is not
comprehended in said waiver clauses. With more reason, respondent has no power nor
jurisdiction to hold petitioner in confinement, nor to have him tried by a U.S. army court-
martial.
Notice must be served to the whole world that, in rendering the decision in this case, the
Supreme Court, in the fullness of judicial maturity, acted not as a mere agency of national
sovereignty, but in the consciousness that the administration of justice, more than national,
is a human function, untethered by the narrow provincialism of the points of view of a
country, but founded on the universal and permanent interests of mankind, as expressed in
principles with equal value regardless of the hemisphere of the latitude where a person
may be placed.
There is a suggestion that, because it has not found articulate expression in this case, it
should be ignored, when it is boiling in many minds, and it is that respondent, shielded by his
military power and the overwhelming national power of his country, may ignore our
decision, and we will be powerless to enforce it. The fact that respondent appeared before
us, through counsel, without any reservation, answers the suggestion, and gives full justice
to the sense of moral values of the respondent.
Besides, in the present state of international affairs, when America is engaged in the noble
task of making a reality the ideal of one world, it can not compromise its moral leadership
by any showing of reckless disregard to the decision of a court of justice. The cry that there
must be one world or none can receive but one satisfactory answer; the reality of world
justice. Only in justice hinges the salvation of humanity. Only justice can give real peace
and provide the basis for contentment and happiness.
We concur in the decision, ordering the immediate release of the petitioner.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-30026 January 30, 1971
MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO, EPIFANIO PADUA and
PATERNO PALMARES, petitioners,
47
vs.
THE DIRECTOR OF THE BUREAU OF PRISONS, respondent.
Jose W. Diokno for petitioners.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres
and Solicitor Eduardo C. Abaya for respondent.
FERNANDO, J.:
Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in number, for their
release from imprisonment. Meted out life terms for the complex crime of rebellion with
murder and other crimes, they would invoke the People v. Hernandez1 doctrine, negating
the existence of such an offense, a ruling that unfortunately for them was not handed
down until after their convictions had become final. Nor is this the first instance, a
proceeding of this character was instituted, as in Pomeroy v. Director of Prisons,2 likewise a
petition for habeas corpus, a similar question was presented. The answer given was in the
negative. Petitioners plead for a new look on the matter. They would premise their stand on
the denial of equal protection if their plea would not be granted. Moreover they did invoke
the codal provision that judicial decisions shall form part of the legal system of the
Philippines,3 necessarily resulting in the conclusion that the Hernandez decision once
promulgated calls for a retroactive effect under the explicit mandate of the Revised Penal
Code as to penal laws having such character even if at the time of their application a final
sentence has been rendered "and the convict is serving the same."4 These arguments carry
considerable persuasion. Accordingly we find for petitioners, without going so far as to
overrule Pomeroy.
Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to
suffer reclusion perpetua for the complex crime of rebellion with multiple murder, robbery,
arson and kidnapping. Petitioners Gaudencio Agapito, Paterno Palmares and Epifanio
Padua, likewise pleaded guilty to the complex crime of rebellion with multiple murder and
other offenses, and were similarly made to suffer the same penalty in decisions rendered, as
to the first two, on March 8, 1954 and, as to the third, on December 15, 1955. The last
petitioner, Blas Bagolbagol, stood trial also for the complex crime of rebellion with multiple
murder and other offenses and on January 12, 1954 penalized with reclusion perpetua.
Each of the petitioners has been since then imprisoned by virtue of the above convictions.
Each of them has served more than 13 years.5
Subsequently, in People v. Hernandez,6 as above noted, this Court ruled that the
information against the accused in that case for rebellion complexed with murder, arson
and robbery was not warranted under Article 134 of the Revised Penal Code, there being
no such complex offense.7 In the recently-decided case of People vs. Lava,8 we expressly
reaffirmed the ruling in the Hernandez case rejecting the plea of the Solicitor General for
the abandonment of such doctrine. It is the contention of each of the petitioners that he
has served, in the light of the above, more than the maximum penalty that could have
been imposed upon him. He is thus entitled to freedom, his continued detention being
illegal.9
The fear that the Pomeroy ruling stands as an obstacle to their release on a habeas corpus
proceeding prompted petitioners, as had been mentioned, to ask that it be appraised
anew and, if necessary, discarded. We can resolve the present petition without doing so.
The plea there made was unconvincing, there being a failure to invoke the contentions
now pressed vigorously by their counsel, Attorney Jose W. Diokno, as to the existence of a
denial of a constitutional right that would suffice to raise a serious jurisdictional question and
the retroactive effect to be given a judicial decision favorable to one already sentenced
to a final judgment under Art. 22 of the Revised Penal Code. To repeat, these two grounds
carry weight. We have to grant this petition.
1. The fundamental issue, to repeat, is the availability of the writ of habeas corpus under the
circumstances disclosed. Its latitudinarian scope to assure that illegality of restraint and
detention be avoided is one of the truisms of the law. It is not known as the writ of liberty for
nothing. The writ imposes on judges the grave responsibility of ascertaining whether there is
any legal justification for a deprivation of physical freedom. Unless there be such a showing,
the confinement must thereby cease. If there be a valid sentence it cannot, even for a
moment, be extended beyond the period provided for by law. Any deviation from the
legal norms call for the termination of the imprisonment.
Rightly then could Chafee refer to the writ as "the most important human rights provision" in
the fundamental law. 10Nor is such praise unique. Cooley spoke of it as "one of the principal
safeguards to personal liberty." 11 For Willoughby, it is "the greatest of the safeguards
erected by the civil law against arbitrary and illegal imprisonment by whomsoever
detention may be exercised or ordered." 12 Burdick echoed a similar sentiment, referring to
it as "one of the most important bulwarks of liberty." 13 Fraenkel made it unanimous, for to
him, "without it much else would be of no avail." 14 Thereby the rule of law is assured.
A full awareness of the potentialities of the writ of habeas corpus in the defense of liberty
coupled with its limitations may be detected in the opinions of former Chief Justices
Arellano, 15 Avanceña, 16 Abad Santos, 17 Paras, 18Bengzon, 19 and the present Chief
Justice. 20 It fell to Justice Malcolm's lot, however to emphasize quite a few times the
breadth of its amplitude and of its reach. In Villavicencio v. Lukban, 21 the remedy came in
handy to challenge the validity of the order of the then respondent Mayor of Manila who,
for the best of reasons but without legal justification, ordered the transportation of more
than 150 inmates of houses of ill-repute to Davao. After referring to the writ of habeas
corpus as having been devised and existing "as a speedy and effectual remedy to relieve
persons from unlawful restraint" the opinion of Justice Malcolm continued: "The essential
48
object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is
illegal. Any restraint which will preclude freedom of action is sufficient." 22
The liberality with which the judiciary is to construe habeas corpus petitions even if
presented in pleadings on their face devoid of merit was demonstrated in Ganaway v.
Quilen, 23 where this Court, again through Justice Malcolm, stated: "As standing alone the
petition for habeas corpus was fatally defective in its allegations, this court, on its motion,
ordered before it the record of the lower court in the case entitled Thomas Casey, et al. v.
George Ganaway." 24 It is to Justice Malcolm likewise in Conde v. Rivera, 25 to whom is
traceable the doctrine, one that broadens the field of the operation of the writ, that a
disregard of the constitutional right to speedy trial ousts the court of jurisdiction and entitles
the accused if "restrained of his liberty, by habeas corpus to obtain his
freedom." 26
So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put the matter thus:
"The writ of habeas corpus is a high prerogative writ, known to the common law, the great
object of which is the liberation of those who may be imprisoned without sufficient cause."
Then there is this affirmation from an 1869 decision 28 of the then Chief Justice Chase: "The
great writ of habeas corpus has been for centuries esteemed the best and only sufficient
defense of personal freedom." The passing of the years has only served to confirm its
primacy as a weapon on in the cause of liberty. Only the other year, Justice Fortas spoke
for the United States Supreme Court thus: "The writ of habeas corpus is the fundamental
instrument for safeguarding individual freedom against arbitrary and lawless state action. ...
The scope and flexibility of the writ — its capacity to reach all manner of illegal detention —
its ability to cut through barriers of form and procedural mazes — have always been
emphasized and jealously guarded by courts and lawmakers. The very nature of the writ
demands that it be administered with the initiative and flexibility essential to insure that
miscarriages of justice within its reach are surfaced and corrected." 29 Justice Fortas
explicitly made reference to Blackstone, who spoke of it as "the great and efficacious writ,
in all manner of illegal confinement." Implicit in his just estimate of its pre-eminent role is his
adoption of Holmes' famous dissent in Frank v. Mangum: 30 "But habeas corpus cuts through
all forms and goes to the very tissue of the structure."
2. Where, however, the detention complained of finds its origin in what has been judicially
ordained, the range of inquiry in a habeas corpus proceeding is considerably narrowed.
For if "the person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the process, render the judgment, or
make the order," the writ does not lie. 31 That principle dates back to 1902, 32 when this
Court announced that habeas corpus was unavailing where the person detained was in
the custody of an officer under process issued by a court or magistrate. This is
understandable, as during the time the Philippines was under American rule, there was
necessarily an adherence to authoritative doctrines of constitutional law there followed.
One such principle is the requirement that there be a finding of jurisdictional defect. As
summarized by Justice Bradley in Ex parte Siebold, an 1880 decision: "The only ground on
which this court, or any court, without some special statute authorizing it, will give relief on
habeas corpus to a prisoner under conviction and sentence of another court is the want of
jurisdiction in such court over the person or the cause, or some other matter rendering its
proceedings void." 33
There is the fundamental exception though, that must ever be kept in mind. Once a
deprivation of a constitutional right is shown to exist, the court that rendered the judgment
is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the
legality of the detention. 34
3. Petitioners precisely assert a deprivation of a constitutional right, namely, the denial of
equal protection. According to their petition: "In the case at bar, the petitioners were
convicted by Courts of First Instance for the very same rebellion for which Hernandez,
Geronimo, and others were convicted. The law under which they were convicted is the
very same law under which the latter were convicted. It had not and has not been
changed. For the same crime, committed under the same law, how can we, in
conscience, allow petitioners to suffer life imprisonment, while others can suffer only prision
mayor?" 35
They would thus stress that, contrary to the mandate of equal protection, people similarly
situated were not similarly dealt with. What is required under this required constitutional
guarantee is the uniform operation of legal norms so that all persons under similar
circumstances would be accorded the same treatment both in the privileges conferred
and the liabilities imposed. As was noted in a recent decision: "Favoritism and undue
preference cannot be allowed. For the principle is that equal protection and security shall
be given to every person under circumstances, which if not identical are analogous. If law
be looked upon in terms of burden or charges, those that fall within a class should be
treated in the same fashion, whatever restrictions cast on some in the group equally
binding on the rest." 36
The argument of petitioners thus possesses a persuasive ring. The continued incarceration
after the twelve-year period when such is the maximum length of imprisonment in
accordance with our controlling doctrine, when others similarly convicted have been
freed, is fraught with implications at war with equal protection. That is not to give it life. On
the contrary, it would render it nugatory. Otherwise, what would happen is that for an
identical offense, the only distinction lying in the finality of the conviction of one being
before the Hernandez ruling and the other after, a person duly sentenced for the same
49
crime would be made to suffer different penalties. Moreover, as noted in the petition
before us, after our ruling in People v. Lava, petitioners who were mere followers would be
made to languish in jail for perhaps the rest of their natural lives when the leaders had been
duly considered as having paid their penalty to society, and freed. Such a deplorable result
is to be avoided.
4. Petitioners likewise, as was made mention at the outset, would rely on Article 22 of the
Revised Penal Code which requires that penal judgment be given a retroactive effect. In
support of their contention, petitioners cite U.S. v. Macasaet, 37 U.S. vs.Parrone, 38 U.S. v.
Almencion, 39 People v. Moran, 40 and People v. Parel. 41 While reference in the above
provision is made not to judicial decisions but to legislative acts, petitioners entertain the
view that it would be merely an exaltation of the literal to deny its application to a case like
the present. Such a belief has a firmer foundation. As was previously noted, the Civil Code
provides that judicial decisions applying or interpreting the Constitution, as well as
legislation, form part of our legal system. Petitioners would even find support in the well-
known dictum of Bishop Hoadley:
"Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is
truly the law-giver to all intents and purposes, and not the person who first thought or spoke
them." It is to be admitted that constitutional law scholars, notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well as the jurist John
Chipman Gray, were much impressed with the truth and the soundness of the above
observations. We do not have to go that far though. Enough for present purposes that both
the Civil Code and the Revised Penal Code allow, if they do not call for, a retroactive
application.
It being undeniable that if the Hernandez ruling were to be given a retroactive effect
petitioners had served the full term for which they could have been legally committed, is
habeas corpus the appropriate remedy? The answer cannot be in doubt. As far back as
1910 the prevailing doctrine was announced in Cruz v. Director of Prisons. 45Thus: "The courts
uniformly hold that where a sentence imposes punishment in excess of the power of the
court to impose, such sentence is void as to the excess, and some of the courts hold that
the sentence is void in toto; but the weight of authority sustains the proposition that such a
sentence is void only as to the excess imposed in case the parts are separable, the rule
being that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he
has served out so much of the sentence as was valid." 46 There is a reiteration of such a
principle in Director v. Director of Prisons 47 where it was explicitly announced by this Court
"that the only means of giving retroactive effect to a penal provision favorable to the
accused ... is the writ of habeas corpus." 48 While the above decision speaks of a trial judge
losing jurisdiction over the case, insofar as the remedy of habeas corpus is concerned, the
emphatic affirmation that it is the only means of benefiting the accused by the retroactive
character of a favorable decision holds true. Petitioners clearly have thus successfully
sustained the burden of justifying their release.
WHEREFORE, the petition for habeas corpus is granted, and it is ordered that petitioners be
forthwith set at liberty.
Dizon and Zaldivar, JJ., concur.
Concepcion, C.J., concurs in the result.
Castro and Makasiar, JJ., took no part.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The petitioners at bar, three of whom pleaded guilty1 and two of whom stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of
rebellion with multiple murder and other crimes, and have served or are now entering into
their 17th year of imprisonment, save for petitioner Epifanio Padua who was sentenced on
December 15, 1955 and is completing his 15th year of imprisonment, (excluding the periods
they were under pre-conviction detention). The leaders of the rebellion who were meted
out death and life sentences for the same charge by the Court of First Instance of Manila
had their sentences reduced last near to ten years of prision mayor by the Court in People
v. Lava,3 wherein the Court expressly re-affirmed the doctrine first laid down in 1956
in People vs. Hernandez,4 that the crime of rebellion cannot be complexed with other
common crimes since such common crimes "assume the political complexion of the main
crime of which they are mere ingredients and consequently cannot be punished
separately from the principal offense, or complexed with the same, to justify the imposition
of a graver penalty." The Court rejected therein the State's plea for the reexamination and
setting aside of such doctrine, declaring that "(T)his Court has given this plea of the Solicitor
General a very serious consideration, but after a mature deliberation the members of this
Court have decided to maintain that ruling in the Hernandez case and to adhere to what
this Court said in that case." The said leaders have since been duly freed as having served
out their penalty, but their followers, herein petitioners, are still serving their life sentences.
I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that "(W)ith reference
to persons in custody pursuant to a final judgment, the rule is that the writ of habeas
corpus can issue only for want of jurisdiction of the sentencing court, and cannot function
as a writ of error." "I grant, too, that at the time of the Pomeroy decision in 1960, as noted
therein, "the existence of the 'complexed' rebellion (was) still upheld by a sizable number of
lawyers, prosecutors, judges and even justices of this Court." But with the doctrine first
enunciated in 1956 in Hernandez by a bare six-to-four majority vote having withstood the
test of time6 and having been just last year unreservedly reaffirmed without a single dissent
50
in Lava, it cannot now be gainsaid that it is now part of our legal system that the crime of
"complexed" rebellion does not exist in our Revised Penal Code. No prosecutor would now
file an information for "complexed" rebellion but simply for the offense of simple rebellion as
defined in Article 134 of the Revised Penal Code, and even if such an information for
"complexed" rebellion to be so filed, the trial courts would be bound to quash such
information as not charging an offense on the strength of Lava and Hernandez.
Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the
Revised Penal Code that:
ART. 22. Retroactive effect of penal laws.—Penal laws shall have a
retroactive effect insofar as they favor the person guilty of a felony, who
is not a habitual criminal, as this term is defined in rule 5 of article 62 of
this Code, although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving the same.
in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal system of the
Philippines."
The situation of petitioners is no different than it would be if, say, the penalty of reclusion
perpetua were imposed by statute for the crime of simple rebellion at the time of their
conviction and they were accordingly sentenced, and the statutory penalty were now
reduced to prision mayor or 12 years imprisonment; having served out the maximum
penalty of 12 years now imposed by the amended statute, they would be entitled to invoke
the retroactive effect of the statute favoring them.lâwphî1.ñèt The only difference between
the situation given and the present case is that here it is this Supreme Court, interpreting the
laws in discharge of its constitutional prerogative, that has laid down the doctrine
since Hernandez in 1956 that no offense of "complexed" rebellion exists and petitioners
should therefore be now equally entitled to the retroactive favorable effect of such
doctrine.
The actual case of petitioners is that at the time of their conviction, it was
believed — erroneously — that the crime committed by them was punishable by life
imprisonment, but the Court has subsequently judicially determined it not be so and that
the maximum imposable penalty is prision mayor or 12 years. Petitioners-convicts are
entitled to the benefit of this later judicial declaration, just as if a statutory amendment had
been enacted—not because the sentencing court had no jurisdiction or is now ousted of
jurisdiction. The writ prayed for should issue, since as held in Directo vs. Director of
Prisons,7 "the only means of giving retroactive effect to a penal provision favorable to the
accused where the trial judge has lost jurisdiction over the case, is the writ of habeas
corpus."
The question of jurisdiction of the sentencing court therefore is moot, for it is universally
recognized that relief by habeas corpus may be properly sought in cases of imposition of
excessive penalty, such that the part of the sentence beyond or in excess of the power of
the court to impose is held void, the applicant having already served out the entire part of
the sentence within the court's power. 8 As pointed out by the Court in Rodriguez vs.
Director of Prisons,9 furthermore, "Article 22 of the Revised Penal Code ... extends its benefits
even to convicts serving sentence, and the only legal remedy open to them to make use of
such benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon them
under the former penal law was decreased by the revised code, the excess has become
illegal."
Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences
had jurisdiction or not to impose such penalty, or were right or wrong in imposing such
penalty, the only relevant question now is whether petitioners have served the maximum —
and lesser — sentence of prision mayor that this Court has by firm judicial doctrine since
1956 determined to be the penalty that the Revised Penal Code fixes for the crime of
rebellion. Since they have actually served much more than the maximum imposable
penalty, the excess of the sentence imposed upon them over the imposable maximum of
twelve years of prision mayor cannot but be declared illegal and they should now be set
free.
In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030) for the
prescription of certain election offenses (fixing the same at one year after commission)
were more favorable to the accused than those of the pre-existing law and were therefore
retroactive as to the same offenses committed before the enactment of the new law. In
meeting the objection that the reduced prescription period was by its terms applicable
only to offenses resulting from the new law (which amended the pre-existing Election Law)
and could not be given retroactive effect, the Court found "that practically all of the
offenses defined in the former law are also defined in the same language in Act 3030 (the
new law), the only difference being that the penalties have been increased." Holding that
the retroactivity clause of Article 22 of the Penal Code must apply in all in which the new
law is more favorable to the accused, in the absence of any express statutory exception,
the Court drew this analogy: "Let us suppose that a statute is enacted defining the crime of
murder in the same language in which it is defined in the Penal Code, but providing that
the maximum penalty for the crime defined in the new statute shall be life imprisonment,
the statute containing no provision that it shall not be retroactive in its effect. Would
anyone then maintain that the death penalty might still be imposed for murder committed
before the new statute was enacted?"
The case at bar for petitioners is much stronger. Here, there is no question even as to the
enactment of a law statute describing the crime in the same language and imposing a
51
lesser penalty, but the settled doctrine of this Court that there does not exist in our legal
system the complex crime of rebellion of which the petitioners stand convicted, "since
rebellion cannot form a complex with common crimes, because the latter are either
absorbed by the rebellion itself or are punishable as independent offenses." 11 Petitioners
here have been convicted for the very same rebellion and under the very same law for
which their leaders, Jose Lava et al., have been convicted. Yet, while their leaders have
since been freed after serving their sentences of ten years of prision mayor, petitioners as
mere followers are serving out the life sentences imposed on them, notwithstanding their
already having served out much more than the maximum penalty of twelve years of prision
mayor imposable upon them. The fact that the legal doubts about the non-existence of the
crime of "complexed" rebellion were cleared up only in 1956 after they had already been
convicted and were serving their sentences does not make the excess in the penalty
imposed upon them beyond the maximum of twelve years any less illegal.
The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary
rule of the law of the case, have no application here. These salutary rules decree that rights
of parties having been decisively settled and determined by final judgment of the court of
competent jurisdiction with the party adversely affected having had the opportunity to
raise in the case all relevant questions, the decision becomes the law of the case, and
vested rights would be impaired, judicial chaos and disorder ensue and litigation would be
never-ending and would become more intolerable than the wrongs it is intended to
redress, should an adjudicated case be reopened simply because in another and
subsequent case, this Court adopted a new or different construction of the law under
which a different result of the adjudicated case might have been obtained. Here, the
whole question
turns — simply — on the nature of the crime of rebellion as defined in section 134 of the
Revised Penal Code and the maximum penalty imposable therefor under section 135 of the
same Code. As this Court had ruled since 1956--which is now settled doctrine—that only the
crime of simple rebellion exists in our legal system for which the maximum penalty of prision
mayor may be imposed, the excess of the life sentences imposed upon petitioners over the
imposable maximum of prision mayor cannot stand and must necessarily be declared void.
Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar
presents a clear case of an excess in penalty imposed beyond twelve years of prision
mayor which has become illegal by virtue of this Court's settled doctrine that the crime of
rebellion cannot be complexed with other common crimes. On this ground, as well as on
the further and more fundamental ground that to hold them liable to continue serving life
sentences for a crime that the law—at the time of their conviction as well as now—punishes
only with prision mayor which they have more than fully served, would be to deny them
their constitutional rights of due process and equal protection of the law.
Any further detention of petitioners, in my view as above discussed, is illegal and
unconstitutional and the petition for habeas corpus should be granted and petitioners
forthwith set at liberty.
Reyes, J.B.L., Makalintal and Villamor, JJ., concur.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The petitioners at bar, three of whom pleaded guilty1 and two of whom stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of
rebellion with multiple murder and other crimes, and have served or are now entering into
their 17th year of imprisonment, save for petitioner Epifanio Padua who was sentenced on
December 15, 1955 and is completing his 15th year of imprisonment, (excluding the periods
they were under pre-conviction detention). The leaders of the rebellion who were meted
out death and life sentences for the same charge by the Court of First Instance of Manila
had their sentences reduced last near to ten years of prision mayor by the Court in People
v. Lava,3 wherein the Court expressly re-affirmed the doctrine first laid down in 1956
in People vs. Hernandez,4 that the crime of rebellion cannot be complexed with other
common crimes since such common crimes "assume the political complexion of the main
crime of which they are mere ingredients and consequently cannot be punished
separately from the principal offense, or complexed with the same, to justify the imposition
of a graver penalty." The Court rejected therein the State's plea for the reexamination and
setting aside of such doctrine, declaring that "(T)his Court has given this plea of the Solicitor
General a very serious consideration, but after a mature deliberation the members of this
Court have decided to maintain that ruling in the Hernandez case and to adhere to what
this Court said in that case." The said leaders have since been duly freed as having served
out their penalty, but their followers, herein petitioners, are still serving their life sentences.
I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that "(W)ith reference
to persons in custody pursuant to a final judgment, the rule is that the writ of habeas
corpus can issue only for want of jurisdiction of the sentencing court, and cannot function
as a writ of error." "I grant, too, that at the time of the Pomeroy decision in 1960, as noted
therein, "the existence of the 'complexed' rebellion (was) still upheld by a sizable number of
lawyers, prosecutors, judges and even justices of this Court." But with the doctrine first
enunciated in 1956 in Hernandez by a bare six-to-four majority vote having withstood the
test of time6 and having been just last year unreservedly reaffirmed without a single dissent
in Lava, it cannot now be gainsaid that it is now part of our legal system that the crime of
"complexed" rebellion does not exist in our Revised Penal Code. No prosecutor would now
file an information for "complexed" rebellion but simply for the offense of simple rebellion as
defined in Article 134 of the Revised Penal Code, and even if such an information for
52
"complexed" rebellion to be so filed, the trial courts would be bound to quash such
information as not charging an offense on the strength of Lava and Hernandez.
Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the
Revised Penal Code that:
ART. 22. Retroactive effect of penal laws.—Penal laws shall have a
retroactive effect insofar as they favor the person guilty of a felony, who
is not a habitual criminal, as this term is defined in rule 5 of article 62 of
this Code, although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving the same.
in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal system of the
Philippines."
The situation of petitioners is no different than it would be if, say, the penalty of reclusion
perpetua were imposed by statute for the crime of simple rebellion at the time of their
conviction and they were accordingly sentenced, and the statutory penalty were now
reduced to prision mayor or 12 years imprisonment; having served out the maximum
penalty of 12 years now imposed by the amended statute, they would be entitled to invoke
the retroactive effect of the statute favoring them. The only difference between the
situation given and the present case is that here it is this Supreme Court, interpreting the
laws in discharge of its constitutional prerogative, that has laid down the doctrine
since Hernandez in 1956 that no offense of "complexed" rebellion exists and petitioners
should therefore be now equally entitled to the retroactive favorable effect of such
doctrine.
The actual case of petitioners is that at the time of their conviction, it was
believed — erroneously — that the crime committed by them was punishable by life
imprisonment, but the Court has subsequently judicially determined it not be so and that
the maximum imposable penalty is prision mayor or 12 years. Petitioners-convicts are
entitled to the benefit of this later judicial declaration, just as if a statutory amendment had
been enacted—not because the sentencing court had no jurisdiction or is now ousted of
jurisdiction. The writ prayed for should issue, since as held in Directo vs. Director of
Prisons,7 "the only means of giving retroactive effect to a penal provision favorable to the
accused where the trial judge has lost jurisdiction over the case, is the writ of habeas
corpus."
The question of jurisdiction of the sentencing court therefore is moot, for it is universally
recognized that relief by habeas corpus may be properly sought in cases of imposition of
excessive penalty, such that the part of the sentence beyond or in excess of the power of
the court to impose is held void, the applicant having already served out the entire part of
the sentence within the court's power. 8 As pointed out by the Court in Rodriguez vs.
Director of Prisons,9 furthermore, "Article 22 of the Revised Penal Code ... extends its benefits
even to convicts serving sentence, and the only legal remedy open to them to make use of
such benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon them
under the former penal law was decreased by the revised code, the excess has become
illegal."
Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences
had jurisdiction or not to impose such penalty, or were right or wrong in imposing such
penalty, the only relevant question now is whether petitioners have served the maximum —
and lesser — sentence of prision mayor that this Court has by firm judicial doctrine since
1956 determined to be the penalty that the Revised Penal Code fixes for the crime of
rebellion. Since they have actually served much more than the maximum imposable
penalty, the excess of the sentence imposed upon them over the imposable maximum of
twelve years of prision mayor cannot but be declared illegal and they should now be set
free.
In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030) for the
prescription of certain election offenses (fixing the same at one year after commission)
were more favorable to the accused than those of the pre-existing law and were therefore
retroactive as to the same offenses committed before the enactment of the new law. In
meeting the objection that the reduced prescription period was by its terms applicable
only to offenses resulting from the new law (which amended the pre-existing Election Law)
and could not be given retroactive effect, the Court found "that practically all of the
offenses defined in the former law are also defined in the same language in Act 3030 (the
new law), the only difference being that the penalties have been increased." Holding that
the retroactivity clause of Article 22 of the Penal Code must apply in all in which the new
law is more favorable to the accused, in the absence of any express statutory exception,
the Court drew this analogy: "Let us suppose that a statute is enacted defining the crime of
murder in the same language in which it is defined in the Penal Code, but providing that
the maximum penalty for the crime defined in the new statute shall be life imprisonment,
the statute containing no provision that it shall not be retroactive in its effect. Would
anyone then maintain that the death penalty might still be imposed for murder committed
before the new statute was enacted?"
The case at bar for petitioners is much stronger. Here, there is no question even as to the
enactment of a law statute describing the crime in the same language and imposing a
lesser penalty, but the settled doctrine of this Court that there does not exist in our legal
system the complex crime of rebellion of which the petitioners stand convicted, "since
rebellion cannot form a complex with common crimes, because the latter are either
absorbed by the rebellion itself or are punishable as independent offenses." 11 Petitioners
here have been convicted for the very same rebellion and under the very same law for
53
which their leaders, Jose Lava et al., have been convicted. Yet, while their leaders have
since been freed after serving their sentences of ten years of prision mayor, petitioners as
mere followers are serving out the life sentences imposed on them, notwithstanding their
already having served out much more than the maximum penalty of twelve years of prision
mayor imposable upon them. The fact that the legal doubts about the non-existence of the
crime of "complexed" rebellion were cleared up only in 1956 after they had already been
convicted and were serving their sentences does not make the excess in the penalty
imposed upon them beyond the maximum of twelve years any less illegal.
The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary
rule of the law of the case, have no application here. These salutary rules decree that rights
of parties having been decisively settled and determined by final judgment of the court of
competent jurisdiction with the party adversely affected having had the opportunity to
raise in the case all relevant questions, the decision becomes the law of the case, and
vested rights would be impaired, judicial chaos and disorder ensue and litigation would be
never-ending and would become more intolerable than the wrongs it is intended to
redress, should an adjudicated case be reopened simply because in another and
subsequent case, this Court adopted a new or different construction of the law under
which a different result of the adjudicated case might have been obtained. Here, the
whole question
turns — simply — on the nature of the crime of rebellion as defined in section 134 of the
Revised Penal Code and the maximum penalty imposable therefor under section 135 of the
same Code. As this Court had ruled since 1956--which is now settled doctrine—that only the
crime of simple rebellion exists in our legal system for which the maximum penalty of prision
mayor may be imposed, the excess of the life sentences imposed upon petitioners over the
imposable maximum of prision mayor cannot stand and must necessarily be declared void.
Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar
presents a clear case of an excess in penalty imposed beyond twelve years of prision
mayor which has become illegal by virtue of this Court's settled doctrine that the crime of
rebellion cannot be complexed with other common crimes. On this ground, as well as on
the further and more fundamental ground that to hold them liable to continue serving life
sentences for a crime that the law—at the time of their conviction as well as now—punishes
only with prision mayor which they have more than fully served, would be to deny them
their constitutional rights of due process and equal protection of the law.
Any further detention of petitioners, in my view as above discussed, is illegal and
unconstitutional and the petition for habeas corpus should be granted and petitioners
forthwith set at liberty.
Reyes, J.B.L., Makalintal and Villamor, JJ., concur.
 31 Section 4, Rule 102 provides: "If it appears that the person alleged to
be restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court
of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed, the person
shall not be discharged by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an
offense in the Philippines, or of a person suffering imprisonment under
lawful judgment." 3 Moran, Comments on the Rules of Court, p. 604, 1970
ed.
32 In re Prautch, 1 Phil. 132.
33 100 US 371, 375. According to Ex parte Lange: "On consideration of
the petition, the court was of opinion that the facts therein recited very
fairly raised the question whether the circuit court, in the sentence which
it had pronounced, and under which the prisoner was held, had not
exceed its powers. It therefore directed the writ to issue, accompanied
also by a writ of certiorari, to bring before this court the proceedings in
the circuit court under which the petitioner was restrained of his liberty.
The authority of this court in such case, under the Constitution of the
United States, and the 14th section of the judiciary act of 1789 (1 Stat. at
L. 73), to issue this writ, and to examine the proceedings in the inferior
court, so far as may be necessary to ascertain whether that court has
exceeded its authority, is no longer open to question." (85 US 163, 165-166
[1874]). Justice Miller, who penned the opinion, cited the following cases:
U. S. v. Hamilton, 3 Dall. 17 (1795); Ex parte Burford, 3 Cranch 448
(1806); Ex parte Bollman, 4 Cranch 75 (1807); Ex parte Watkins, 3 Pet. 193,
7 Pet. 508 (1830); Ex Parte Metzger, 5 How. 176 (1847); Ex parte Kaine, 14
How. 103 (1852); Ex parte Wells, 18 How. 307 (1856); Ex Parte Milligan, 4
Wall. 2 (1866); Ex parte Mccardle, 6 Wall. 318 (1868); Ex parte Yerger, 8
Wall. 85 (1869).
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32485 October 22, 1970
54
IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S RIGHTS AND
DUTIES UNDER SEC. 8 OF R.A. No. 6132.
KAY VILLEGAS KAMI, INC., petitioner.
MAKASIAR, J.:.
This petition for declaratory relief was filed by Kay Villegas Kami, Inc., claiming to be a duly
recognized and existing non-stock and non-profit corporation created under the laws of
the land, and praying for a determination of the validity of Sec. 8 of R.A. No. 6132 and a
declaration of petitioner's rights and duties thereunder. In paragraph 7 of its petition,
petitioner avers that it has printed materials designed to propagate its ideology and
program of government, which materials include Annex B; and that in paragraph 11 of said
petition, petitioner intends to pursue its purposes by supporting delegates to the
Constitutional Convention who will propagate its ideology.
Petitioner, in paragraph 7 of its petition, actually impugns because it quoted, only the first
paragraph of Sec. 8(a) on the ground that it violates the due process clause, right of
association, and freedom of expression and that it is an ex post facto law.
The first three grounds were overruled by this Court when it held that the questioned
provision is a valid limitation on the due process, freedom of expression, freedom of
association, freedom of assembly and equal protection clauses; for the same is designed to
prevent the clear and present danger of the twin substantive evils, namely, the prostitution
of electoral process and denial of the equal protection of the laws. Moreover, under the
balancing-of-interests test, the cleansing of the electoral process, the guarantee of equal
change for all candidates, and the independence of the delegates who must be
"beholden to no one but to God, country and conscience," are interests that should be
accorded primacy.1
The petitioner should therefore be accordingly guided by the pronouncements in the cases
of Imbong and Gonzales.2
The claim of petitioner that the challenged provision constitutes an ex post facto law is
likewise untenable.
An ex post facto law is one which:.
(1) makes criminal an act done before the passage of the law and
which was innocent when done, and punishes such an act;
(2) aggravates a crime, or makes it greater than it was, when
committed;
(3) changes the punishment and inflicts a greater punishment than the
law annexed to the crime when committed;
 (4) alters the legal rules of evidence, and authorizes conviction upon less
or different testimony than the law required at the time of the
commission of the offense;
(5) assuming to regulate civil rights and remedies only, in effect imposes
penalty or deprivation of a right for something which when done was
lawful; and
(6) deprives a person accused of a crime of some lawful protection to
which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty.3
From the aforesaid definition as well as classification of ex post facto laws, the constitutional
inhibition refers only to criminal laws which are given retroactive effect.4
While it is true that Sec. 18 penalizes a violation of any provision of R.A. No. 6132 including
Sec. 8(a) thereof, the penalty is imposed only for acts committed after the approval of the
law and not those perpetrated prior thereto. There is nothing in the law that remotely
insinuates that Secs. 8(a) and 18, or any other provision thereof, shall apply to acts carried
out prior to its approval. On the contrary, See. 23 directs that the entire law shall be
effective upon its approval. It was approved on August 24, 1970.
WHEREFORE, the prayer of the petition is hereby denied and paragraph 1 of Sec. 8(a) of
R.A. No. 6132 is not unconstitutional. Without costs.
Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.
Zaldivar, J., reserves his vote.
Concepcion, C.J., is on leave.
Separate Opinions
FERNANDO, J., concurring and dissenting:
Concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-
32432 and Gonzales v. Comelec, L-32443.
BARREDO, J., dissenting:
Reiterates his views in Gonzales and Imbong insofar as they are relevant to the issues in this
case, dissents, even as agrees that Republic Act 6132 is not ex post facto.
VILLAMOR, J., concurring:
Concurs in the sense that the law is declared not ex post facto law and dissents as to the
rest.
TEEHANKEE, J., dissenting:
The Court's decision reaffirms its split-vote ruling last September 11, 1970 in Imbong vs.
Ferrer and Gonzales vs. Comelec1 upholding the constitutionality of the first paragraph of
section 8(a) of Republic Act 6132. Inasmuch as I was unable to participate in the said
55
cases, 2 I have expressed my contrary view in my separate dissenting opinion in Badoy, Jr.
vs. Ferrer 3 that the challenged provision, together with the Act's other restrictions and
strictures enumerated therein, "oppressively and unreasonably straitjacket the candidates
as well as the electorate and gravely violate the constitutional guaranties of freedom of
expression, freedom of the press and freedom of association, and, deny due process and
the equal protection of the laws."
I therefore dissent from the Court's decision at bar for the same reason and considerations
stated in my separate dissenting opinion in the case of Badoy.
I only wish to add a few words on the statements in the main opinion in Imbong-
Gonzales that "(W)hile it may be true that a party's support of a candidate is not wrong per
se, it is equally true that Congress in the exercise of the broad law-making authority can
declare certain acts as mala prohibita when justified by the exigencies of the times. One
such act is the party or organization support prescribed in Sec. 8(a), which ban is a valid
limitation on the freedom of association as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that 'equality of chances may be better attained by
banning all organization support.' "
I trust that said statements were not intended, and should not be construed, as endorsing
the contention of Senator Tolentino, the Act's sponsor, that "(T)he protection of the
Constitution cannot be invoked for the right of association when the purpose is a malum
prohibitum because such purpose would be "contrary to law" " and "(O)nce the ban (on
party and organization support) is approved into law, the freedom of association cannot
be invoked against it" since the Constitution decrees only that "(T)he right to form
associations or societies for purposes not contrary to law shall not be abridged."4
Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of freedom of
association which has its root in the Malolos Constitution would render sterile and
meaningless the Constitutional safeguard, should Congress be conceded, in the exercise of
its broad law-making authority, the power to strike down at any time associations and
societies by the simple expedient of declaring their purposes or certain activities, not
wrong per se as "contrary to law" or mala prohibita. I believe that such a concept begs the
question. Obviously, the word "law" in the qualifying clause "for purposes not contrary to
law" does not mean that an enactment of the legislature forecloses the question with
finality and sounds the death-knell. Laws that would regulate the purposes for which
associations and societies may be formed or would declare their purposes mala prohibita
must pass the usual constitutional test of reasonableness and furthermore, must not abridge
freedom of speech and press.5
# Separate Opinions
FERNANDO, J., concurring and dissenting:
Concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-
32432 and Gonzales v. Comelec, L-32443.
BARREDO, J., dissenting:
Reiterates his views in Gonzales and Imbong insofar as they are relevant to the issues in this
case, dissents, even as agrees that Republic Act 6132 is not ex post facto.
VILLAMOR, J., concurring:
Concurs in the sense that the law is declared not ex post facto law and dissents as to the
rest.
TEEHANKEE, J., dissenting:.
The Court's decision reaffirms its split-vote ruling last September 11, 1970 in Imbong vs.
Ferrer and Gonzales vs. Comelec1 upholding the constitutionality of the first paragraph of
section 8(a) of Republic Act 6132. Inasmuch as I was unable to participate in the said
cases, 2 I have expressed my contrary view in my separate dissenting opinion in Badoy, Jr.
vs. Ferrer 3 that the challenged provision, together with the Act's other restrictions and
strictures enumerated therein, "oppressively and unreasonably straitjacket the candidates
as well as the electorate and gravely violate the constitutional guaranties of freedom of
expression, freedom of the press and freedom of association, and, deny due process and
the equal protection of the laws."
I therefore dissent from the Court's decision at bar for the same reason and considerations
stated in my separate dissenting opinion in the case of Badoy.
I only wish to add a few words on the statements in the main opinion in Imbong-
Gonzales that "(W)hile it may be true that a party's support of a candidate is not wrong per
se, it is equally true that Congress in the exercise of the broad law-making authority can
declare certain acts as mala prohibita when justified by the exigencies of the times. One
such act is the party or organization support prescribed in Sec. 8(a), which ban is a valid
limitation on the freedom of association as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that 'equality of chances may be better attained by
banning all organization support.' "
I trust that said statements were not intended, and should not be construed, as endorsing
the contention of Senator Tolentino, the Act's sponsor, that "(T)he protection of the
Constitution cannot be invoked for the right of association when the purpose is a malum
prohibitum because such purpose would be "contrary to law" " and "(O)nce the ban (on
party and organization support) is approved into law, the freedom of association cannot
be invoked against it" since the Constitution decrees only that "(T)he right to form
associations or societies for purposes not contrary to law shall not be abridged."4
Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of freedom of
association which has its root in the Malolos Constitution would render sterile and
56
meaningless the Constitutional safeguard, should Congress be conceded, in the exercise of
its broad law-making authority, the power to strike down at any time associations and
societies by the simple expedient of declaring their purposes or certain activities, not
wrong per se as "contrary to law" or mala prohibita. I believe that such a concept begs the
question. Obviously, the word "law" in the qualifying clause "for purposes not contrary to
law" does not mean that an enactment of the legislature forecloses the question with
finality and sounds the death-knell. Laws that would regulate the purposes for which
associations and societies may be formed or would declare their purposes mala prohibita
must pass the usual constitutional test of reasonableness and furthermore, must not abridge
freedom of speech and press.5
5 See 2 Tañada and Carreon, Political Law of the Philippines, 209.
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-33466-67 April 20, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch
I, in Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the
conviction of the accused in a decision rendered on September 8, 1970, with the following
pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the
aggravating circumstance of evident premeditation offset by the
mitigating circumstance of voluntary surrender. The proper penalty
imposable, therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised
Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt
of the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in
the sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral
 damages, P 2,000.00 as attorney's fees, the offended party having been
represented by a private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the
sum of P12,000.00 as compensatory damages, P10,000.00 as moral
damages, P2,000.00 as attorney's fees, the offended party having been
represent by a private prosecutor, and to pay the costs (p. 48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus
Verano and Cesar Ibanez together with the two deceased Davis
Fleischer and Flaviano Rubia, were fencing the land of George Fleischer,
father of deceased Davis Fleischer. The place was in the boundary of the
highway and the hacienda owned by George Fleischer. This is located in
the municipality of Maitum, South Cotabato. At the place of the fencing
is the house and rice drier of appellant Mamerto Narvaez (pp. 179-182,
t.s.n., Pieza II). At that time, appellant was taking his rest, but when he
heard that the walls of his house were being chiselled, he arose and
there he saw the fencing going on. If the fencing would go on, appellant
would be prevented from getting into his house and the bodega of his
ricemill. So he addressed the group, saying 'Pare, if possible you stop
destroying my house and if possible we will talk it over what is good,'
addressing the deceased Rubia, who is appellant's compadre. The
deceased Fleischer, however, answered: 'No, gademit, proceed, go
ahead.' Appellant apparently lost his equilibrium and he got his gun and
shot Fleischer, hitting him. As Fleischer fell down, Rubia ran towards the
jeep, and knowing there is a gun on the jeep, appellant fired at Rubia,
likewise hitting him (pp. 127-133, t.s.n., Defense transcript). Both Fleischer
and Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn out legal battle
between the Fleischer and Co., Inc. of which deceased Fleischer was the secretary-
treasurer and deceased Rubia the assistant manager, on the one hand, and the land
settlers of Cotabato, among whom was appellant.
From the available records of the related cases which had been brought to the Court of
Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-
26757 and L-45504), WE take judicial notice of the following antecedent facts:
Appellant was among those persons from northern and central Luzon who went to
Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba and now a separate
57
municipality of South Cotabato. He established his residence therein, built his house,
cultivated the area, and was among those who petitioned then President Manuel L.
Quezon to order the subdivision of the defunct Celebes Plantation and nearby Kalaong
Plantation totalling about 2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American
landowner in Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the
same area formerly leased and later abandoned by Celebes Plantation Company,
covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in
1941 but the survey report was not submitted until 1946 because of the outbreak of the
second world war. According to the survey, only 300 hectares Identified as Lots Nos. 22, 26
and 38, Ps. 176 Kiamba, were set aside for Sales Application No. 21983, while the rest were
subdivided into sublots of 5 to 6 hectares each to be distributed among the settlers (pp. 32-
33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and Company was
declared open for disposition, appraised and advertised for public auction. At the public
auction held in Manila on August 14, 1948, Fleischer and Company was the only bidder for
P6,000.00. But because of protests from the settlers the corresponding award in its favor was
held in abeyance, while an investigator was sent by the Director of Lands to Kiamba in the
person of Atty. Jose T. Gozon Atty. Gozon came back after ten days with an amicable
settlement signed by the representative of the settlers. This amicable settlement was later
repudiated by the settlers, but the Director of Lands, acting upon the report of Atty. Gozon,
approved the same and ordered the formal award of the land in question to Fleischer and
Company. The settlers appealed to the Secretary of Agriculture and Natural Resources,
who, however, affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of
Cotabato which then consisted only of one sala, for the purpose of annulling the order of
the Secretary of Agriculture and Natural Resources which affirmed the order of the Director
of Lands awarding the contested land to the company. The settlers as plaintiffs, lost that
case in view of the amicable settlement which they had repudiated as resulting from
threats and intimidation, deceit, misrepresentation and fraudulent machination on the part
of the company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R) which
likewise affirmed on August 16, 1965 the decision of the Court of First Instance in favor of the
company.
This resulted in the ouster of the settlers by an order of the Court of First Instance dated
September 24, 1966, from the land which they had been occupying for about 30 years.
Among those ejected was the appellant who, to avoid trouble, voluntarily dismantled his
house, built in 1947 at a cost of around P20,000.00, and transferred to his other house which
he built in 1962 or 1963 near the highway. The second house is not far from the site of the
dismantled house. Its ground floor has a store operated by Mrs. June Talens who was
renting a portion thereof. He also transferred his store from his former residence to the house
near the highway. Aside from the store, he also had a rice mill located about 15 meters
east of the house and a concrete pavement between the rice mill and the house, which is
used for drying grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf Jose V.
Gamboa and other leaders filed Civil Case No. 755 in the Court of First Instance of
Cotabato, Branch I. to obtain an injunction or annulment of the order of award with prayer
for preliminary injunction. During the pendency of this case, appellant on February 21, 1967
entered into a contract of lease with the company whereby he agreed to lease an area of
approximately 100 to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder
of Exhibits for Defense) for a consideration of P16.00 monthly. According to him, he signed
the contract although the ownership of the land was still uncertain, in order to avoid
trouble, until the question of ownership could be decided. He never paid the agreed
rental, although he alleges that the milling job they did for Rubia was considered payment.
On June 25, 1968, deceased Fleischer wrote him a letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc. for that
portion of land in which your house and ricemill are located as per
agreement executed on February 21, 1967. You have not paid as as
even after repeated attempts of collection made by Mr. Flaviano Rubia
and myself.
In view of the obvious fact that you do not comply with the agreement, I
have no alternative but to terminate our agreement on this date.
I am giving you six months to remove your house, ricemill, bodega, and
water pitcher pumps from the land of Fleischers & Co., Inc. This six- month
period shall expire on December 31, 1966.
In the event the above constructions have not been removed within the
six- month period, the company shall cause their immediate demolition
(Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot
38 by putting bamboo posts along the property line parallel to the highway. Some posts
were planted right on the concrete drier of appellant, thereby cutting diagonally across its
center (pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to appellant's house (p.
231, t.s.n., supra). The fence, when finished, would have the effect of shutting off the
accessibility to appellant's house and rice mill from the highway, since the door of the same
opens to the Fleischers' side. The fencing continued on that fateful day of August 22, 1968,
with the installation of four strands of barbed wire to the posts.
58
At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his
farm all morning, was awakened by some noise as if the wall of his house was being
chiselled. Getting up and looking out of the window, he found that one of the laborers of
Fleischer was indeed chiselling the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6),
while deceased Rubia was nailing the barbed wire and deceased Fleischer was
commanding his laborers. The jeep used by the deceased was parked on the highway. The
rest of the incident is narrated in the People's Brief as above-quoted. Appellant surrendered
to the police thereafter, bringing with him shotgun No. 1119576 and claiming he shot two
persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the following errors:
First Assignment of Error: That the lower court erred in convicting
defendant-appellant despite the fact that he acted in defense of his
person; and
Second Assignment of Error: That the court a quo also erred in convicting
defendant-appellant although he acted in defense of his rights (p. 20 of
Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant admitted
having shot them from the window of his house with the shotgun which he surrendered to
the police authorities. He claims, however, that he did so in defense of his person and of his
rights, and therefore he should be exempt from criminal liability.
Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1
of the Revised Penal Code, but in order for it to be appreciated, the following requisites
must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or
repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself (Art. 11, par. 1, Revised Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased Fleischer of the
following words: "Hindi, sigue, gademit, avante", in answer to his request addressed to
his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan
natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having
been awakened to see the wall of his house being chiselled. The verbal exchange took
place while the two deceased were on the ground doing the fencing and the appellant
was up in his house looking out of his window (pp. 225-227, supra). According to appellant,
Fleischer's remarks caused this reaction in him: "As if, I lost my senses and unknowingly I took
the gun on the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr.
Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:
 When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing
the shot, Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell
down, Mr. Rubia ran towards the jeep and knowing that there was a
firearm in the jeep and thinking that if he will take that firearm he will kill
me, I shot at him (p. 132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by the prosecution. They
claim, however, that the deceased were in lawful exercise of their rights of ownership over
the land in question, when they did the fencing that sealed off appellant's access to the
highway.
A review of the circumstances prior to the shooting as borne by the evidence reveals that
five persons, consisting of the deceased and their three laborers, were doing the fencing
and chiselling of the walls of appellant's house. The fence they were putting up was made
of bamboo posts to which were being nailed strands of barbed wire in several layers.
Obviously, they were using tools which could be lethal weapons, such as nail and hammer,
bolo or bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was not
disputed that the jeep which they used in going to the place was parked just a few steps
away, and in it there was a gun leaning near the steering wheel. When the appellant woke
up to the sound of the chiselling on his walls, his first reaction was to look out of the window.
Then he saw the damage being done to his house, compounded by the fact that his house
and rice mill will be shut off from the highway by the fence once it is finished. He therefore
appealed to his compadre, the deceased Rubia, to stop what they were doing and to talk
things over with him. But deceased Fleischer answered angrily with 'gademit' and directed
his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the fencing
would have resulted in the further chiselling of the walls of appellant's house as well as the
closure of the access to and from his house and rice mill-which were not only imminent but
were actually in progress. There is no question, therefore, that there was aggression on the
part of the victims: Fleischer was ordering, and Rubia was actually participating in the
fencing. This was indeed aggression, not on the person of appellant, but on his property
rights.
The question is, was the aggression unlawful or lawful? Did the victims have a right to fence
off the contested property, to destroy appellant's house and to shut off his ingress and
egress to his residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land
or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of
the order of award to Fleischer and Company was still pending in the Court of First Instance
of Cotabato. The parties could not have known that the case would be dismissed over a
59
year after the incident on August 22, 1968, as it was dismissed on January 23, 1970 on
ground of res judicata, in view of the dismissal in 1965 (by the Court of Appeals) of Civil
Case No. 240 filed in 1950 for the annulment of the award to the company, between the
same parties, which the company won by virtue of the compromise agreement in spite of
the subsequent repudiation by the settlers of said compromise agreement; and that such
1970 dismissal also carried the dismissal of the supplemental petition filed by the Republic of
the Philippines on November 28, 1968 to annul the sales patent and to cancel the
corresponding certificate of title issued to the company, on the ground that the Director of
Lands had no authority to conduct the sale due to his failure to comply with the mandatory
requirements for publication. The dismissal of the government's supplemental petition was
premised on the ground that after its filing on November 28, 1968, nothing more was done
by the petitioner Republic of the Philippines except to adopt all the evidence and
arguments of plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a favorable
judgment in Civil Case No. 755 filed on November 14, 1966 and his execution of the
contract of lease on February 21, 1967 was just to avoid trouble. This was explained by him
during cross-examination on January 21, 1970, thus:
It happened this way: we talked it over with my Mrs. that we better rent
the place because even though we do not know who really owns this
portion to avoid trouble. To avoid trouble we better pay while waiting for
the case because at that time, it was not known who is the right owner
of the place. So we decided until things will clear up and determine who
is really the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense
Exhibits) within which to vacate the land. He should have allowed appellant the peaceful
enjoyment of his properties up to that time, instead of chiselling the walls of his house and
closing appellant's entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or
intimidation as long as there is a possessor who objects thereto. He who
believes that he has an action or a right to deprive another of the
holding of a thing must invoke the aid of the competent court, if the
holder should refuse to deliver the thing.
Art. 539. Every possessor has a right to be respected in his possession; and
should he be disturbed therein he shall be protected in or restored to
said possession by the means established by the laws and the Rules of
Court (Articles 536 and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to destroy or cause
damage to appellant's house, nor to close his accessibility to the highway while he was
pleading with them to stop and talk things over with him. The assault on appellant's
property, therefore, amounts to unlawful aggression as contemplated by law.
Illegal aggression is equivalent to assault or at least threatened assault of
immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's property which he
had the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which
provides:
Art. 429. The owner or lawful possessor of a thing has the right to exclude
any person from the enjoyment and disposal thereof. For this purpose, he
may use such force as may be reasonably necessary to repel or prevent
an actual or threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying circumstance of
self-defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code.
When the appellant fired his shotgun from his window, killing his two victims, his resistance
was disproportionate to the attack.
WE find, however, that the third element of defense of property is present, i.e., lack of
sufficient provocation on the part of appellant who was defending his property. As a
matter of fact, there was no provocation at all on his part, since he was asleep at first and
was only awakened by the noise produced by the victims and their laborers. His plea for
the deceased and their men to stop and talk things over with him was no provocation at
all.
Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the
elements for justification are present. He should therefore be held responsible for the death
of his victims, but he could be credited with the special mitigating circumstance of
incomplete defense, pursuant to paragraph 6, Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance of treachery
cannot be appreciated in this case because of the presence of provocation on the part of
the deceased. As WE held earlier in People vs. Manlapaz (55 SCRA 598), the element of a
sudden unprovoked attack is therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the method of
assault adopted by the aggressor was deliberately chosen with a special view to the
accomplishment of the act without risk to the assailant from any defense that the party
assailed might have made. This cannot be said of a situation where the slayer acted
instantaneously ..." (People vs. Cañete, 44 Phil. 481).
60
WE likewise find the aggravating (qualifying) circumstance of evident premeditation not
sufficiently established. The only evidence presented to prove this circumstance was the
testimony of Crisanto Ibañez, 37 years old, married, resident of Maitum, South Cotabato,
and a laborer of Fleischer and Company, which may be summarized as follows:
On August 20, 1968 (two days before the incident) at about 7:00 A.M., he
was drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the
crossing, Maitum, South Cotabato, when the accused and his wife
talked to him. Mrs. Narvaez asked him to help them, as he was working in
the hacienda. She further told him that if they fenced their house, there is
a head that will be broken. Mamerto Narvaez added 'Noy, it is better
that you will tell Mr. Fleischer because there will be nobody who will
break his head but I will be the one.' He relayed this to Mr. Flaviano
Rubia, but the latter told him not to believe as they were only Idle threats
designed to get him out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the aggravating
circumstance of evident premeditation. As WE have consistently held, there must be "direct
evidence of the planning or preparation to kill the victim, .... it is not enough that
premeditation be suspected or surmised, but the criminal intent must be evidenced by
notorious outward acts evincing the determination to commit the crime" (People vs.
Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the accused premeditated
the killing; that the culprit clung to their (his) premeditated act; and that there was sufficient
interval between the premeditation and the execution of the crime to allow them (him) to
reflect upon the consequences of the act" (People vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis
Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or preparation to kill
the victims nor that the accused premeditated the killing, and clung to his premeditated
act, the trial court's conclusion as to the presence of such circumstance may not be
endorsed.
Evident premeditation is further negated by appellant pleading with the victims to stop the
fencing and destroying his house and to talk things over just before the shooting.
But the trial court has properly appreciated the presence of the mitigating circumstance of
voluntary surrender, it appearing that appellant surrendered to the authorities soon after
the shooting.
Likewise, We find that passion and obfuscation attended the commission of the crime. The
appellant awoke to find his house being damaged and its accessibility to the highway as
well as of his rice mill bodega being closed. Not only was his house being unlawfully
violated; his business was also in danger of closing down for lack of access to the highway.
These circumstances, coming so near to the time when his first house was dismantled, thus
forcing him to transfer to his only remaining house, must have so aggravated his
obfuscation that he lost momentarily all reason causing him to reach for his shotgun and fire
at the victims in defense of his rights. Considering the antecedent facts of this case, where
appellant had thirty years earlier migrated to this so-called "land of promise" with dreams
and hopes of relative prosperity and tranquility, only to find his castle crumbling at the
hands of the deceased, his dispassionate plea going unheeded-all these could be too
much for any man-he should be credited with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing not being
attended by any qualifying nor aggravating circumstance, but extenuated by the
privileged mitigating circumstance of incomplete defense-in view of the presence of
unlawful aggression on the part of the victims and lack of sufficient provocation on the part
of the appellant-and by two generic mitigating circumstance of voluntary surrender and
passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion
temporal. Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be
imposed if the deed is not wholly excusable by reason of the lack of some of the conditions
required to justify the same. Considering that the majority of the requirements for defense of
property are present, the penalty may be lowered by two degrees, i.e., to prision
correccional And under paragraph 5 of Article 64, the same may further be reduced by
one degree, i.e., arresto mayor, because of the presence of two mitigating circumstances
and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan
American World Airways (43 SCRA 397), the award for moral damages was reduced
because the plaintiff contributed to the gravity of defendant's reaction. In the case at bar,
the victims not only contributed but they actually provoked the attack by damaging
appellant's properties and business. Considering appellant's standing in the community,
being married to a municipal councilor, the victims' actuations were apparently designed
to humiliate him and destroy his reputation. The records disclose that his wife, councilor
Feliza Narvaez, was also charged in these two cases and detained without bail despite the
absence of evidence linking her to the killings. She was dropped as a defendant only upon
motion of the prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816),
but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of Fleischer and
Company, despite its extensive landholdings in a Central Visayan province, to extend its
accumulation of public lands to the resettlement areas of Cotabato. Since it had the
capability-financial and otherwise-to carry out its land accumulation scheme, the lowly
settlers, who uprooted their families from their native soil in Luzon to take advantage of the
61
government's resettlement program, but had no sufficient means to fight the big
landowners, were the ones prejudiced. Thus, the moral and material suffering of appellant
and his family deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision
correccional or arrests mayor and fine who has no property with which to meet his civil
liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50.
However, the amendment introduced by Republic Act No. 5465 on April 21, 1969 made the
provisions of Art. 39 applicable to fines only and not to reparation of the damage caused,
indemnification of consequential damages and costs of proceedings. Considering that
Republic Act 5465 is favorable to the accused who is not a habitual delinquent, it may be
given retroactive effect pursuant to Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2)
HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE
SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF
VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING
CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR
(4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS
FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS,
WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES
AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14)
YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE RELEASE
IS HEREBY ORDERED. NO COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera, Escolin
Vasquez and Relova, JJ., concur.
Aquino, J., is on leave.
Plana, J., in the result.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on
persons, not property Plana, J., in the result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am constrained to dissent in part. It is
true that Art. 429, Civil Code of the Philippines, provides that the owner or legal possessor of
a thing may use such force as may be reasonably necessary to repel or prevent an actual
or threatened unlawful physical invasion or usurpation of his property. It seems to me,
however, that an attack on the person defending his property is an indispensable element
where an accused pleads self-defense but what is basically defended is only property.
Defense of property is not of such importance as the right to life and defense of property
can only be invoked when it is coupled with some form of attack on the person of one
entrusted with said property. The defense of property, whether complete or incomplete, to
be available in prosecutions for murder or homicide must be coupled with an attack by the
one getting the property on the person defending it.
In the case now before Us, there is absolutely no evidence that an attack was attempted,
much less made upon the person of appellant. The mere utterance "No, gademit proceed,
go ahead" is not the unlawful aggression which entitles appellant to the pela of self-
defense. I agree with the majority opinion that the crime is homicide but without any
privileged mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides,
mitigated by the two generic mitigating circumstances of voluntary surrender and
obfuscation, without any aggravating circumstance, maximum the sentence the appellant
should have served was prision mayor plus the indemnification to each group of heirs of
Davis Fleischer and of Flamiano Rubia of the sum of Four Thousand (P4,000.00) Pesos,
without subsidiary imprisonment, but without any award for moral damages and attorney's
fees.
Considering that appellant has been under detention for almost fourteen (14) years now
since August 22, 1968, he has served the penalty and should be released.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on
persons, not property Plana, J., in the result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am constrained to dissent in part. It is
true that Art. 429, Civil Code of the Philippines, provides that the owner or legal possessor of
a thing may use such force as may be reasonably necessary to repel or prevent an actual
or threatened unlawful physical invasion or usurpation of his property. It seems to me,
however, that an attack on the person defending his property is an indispensable element
where an accused pleads self-defense but what is basically defended is only property.
62
Defense of property is not of such importance as the right to life and defense of property
can only be invoked when it is coupled with some form of attack on the person of one
entrusted with said property. The defense of property, whether complete or incomplete, to
be available in prosecutions for murder or homicide must be coupled with an attack by the
one getting the property on the person defending it.
In the case now before Us, there is absolutely no evidence that an attack was attempted,
much less made upon the person of appellant. The mere utterance "No, gademit proceed,
go ahead" is not the unlawful aggression which entitles appellant to the pela of self-
defense. I agree with the majority opinion that the crime is homicide but without any
privileged mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides,
mitigated by the two generic mitigating circumstances of voluntary surrender and
obfuscation, without any aggravating circumstance, maximum the sentence the appellant
should have served was prision mayor plus the indemnification to each group of heirs of
Davis Fleischer and of Flamiano Rubia of the sum of Four Thousand (P4,000.00) Pesos,
without subsidiary imprisonment, but without any award for moral damages and attorney's
fees.
Considering that appellant has been under detention for almost fourteen (14) years now
since August 22, 1968, he has served the penalty and should be released.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 123918 December 9, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AUGUSTO LORETO RINGOR, JR., accused-appellant.
PURISIMA, J.:
For automatic review is the Decision 1 dated November 13, 1995 of Branch 6 of the Regional
Trial Court in Baguio City, finding accused-appellant Augusto Loreto Ringor, Jr. guilty of the
crime of murder and sentencing him to suffer the supreme penalty death in Criminal Case
No. 13102-R, also guilty of illegal possession of firearms under P.D. No. 1866 in Criminal Case
No. 13100-R for and disposing thus:
WHEREFORE, Judgment is rendered as follows:
1. In Criminal Case No. 13102, the Court Finds (sic) the accused Augusto
Loreto Ringor Guilty beyond reasonable doubt of the crime of Murder
 defined and penalized under Article 248 of the Revised Penal Code as
amended by Section 6, RA 7659, qualified by Treachery and as further
qualified by the use of an unlicensed firearm and hereby sentences him
to suffer the supreme penalty of Death; to indemnify the heirs of
deceased Marcelino Florida, Jr., the sum of P50,000.00 for his death and
the sum of P100,000.00 as Moral damages for his death, both
indemnification being without subsidiary imprisonment in case of
insolvency and to pay the costs.
2. In Criminal Case No. 13100-R, the Court Finds (sic) accused Augusto
Loreto Ringor Guilty beyond reasonable doubt of the offense of Violation
of Section 1 PD 1866 (Illegal Possession of firearm and ammunitions) as
charged in the Information and hereby sentences him, applying the
Indeterminate Sentence Law, to an imprisonment ranging from 17 years
4 months and 1 day as Minimum to 20 years as Maximum and to pay the
costs.
The subject gun, caliber .38 (Paltik) bearing Serial Number 853169 (Exh. A)
being the subject of the offense is hereby declared confiscated and
forfeited in favor of the State.
The accused Augusto Loreto Ringor is entitled to be credited in the
service of his sentence four fifth (4/5) of his preventive imprisonment in
accordance with Article 29 of the Revised Penal Code.
SO ORDERED.2
Filed on June 28, 1994, the Informations against accused-appellant, alleges:
In Criminal Case No. 13102-R
That on or about the 23rd day of June, 1994, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, being then armed with a Caliber 38 handgun paltick
with Serial Number 853169 and with intent to kill, did then and there
willfully, unlawfully, and feloniously attack, assault and shoot MARCELINO
BUSLAY FLORIDA, JR. thereby inflicting upon the latter hypovolemic shock
secondary to massive hemorrhage; multiple gunshot wounds of the liver,
stomach, small intestine and mesentric blood vessels, which injuries
directly caused his death.
That the qualifying circumstance of TREACHERY attended the
commission of the crime when the accused suddenly attacked victim
and shot him several times at the back, with the use of a handgun, thus
employing means, methods of forms in the execution thereof which tend
63
directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make.
CONTRARY TO LAW.3
and in Criminal Case No. 13100-R
That on or about the 23rd day of June, 1994, in the City of Baguio,
Philippines, and within the jurisdiction of this honorable Court, the above-
named accused, did then and there willfully, unlawfully and feloniously
possess and carry outside of his residence, a firearm, Caliber .38 revolver
(Paltik) bearing Serial Number 853169, without any legal authority or
permit from any government official or authority concerned, in violation
of the above cited provision of law.
CONTRARY TO LAW. 4
With the accused-appellant, assisted by counsel, entering a plea of Not Guilty
upon arraignment, a joint trial of the two cases ensued.
The inculpatory facts and circumstances sued upon are succinctly summarized in the
Appellee's Brief as follows:
On June 23, 1994, at around 6:00 P.M. (sic), Fely Batanes, a waitress at
People's Restaurant located at Kalantiao St., Baguio City, saw appellant
Ringor and his two companions enter the restaurant. (Tsn, December 8,
1994, p. 4). After seating themselves, the group ordered a bottle of gin
(ibid., p. 6). Minutes later, appellant approached one of the tables
where Florida, the restaurant's cook was drinking beer. Without any
warning, appellant pulled Florida's hair and poked a knife on the latter's
throat. Florida stood up and pleaded with appellant not to harm him
(ibid., p. 7). Appellant relented and released his grip on Florida.
Thereafter, he left the restaurant together with his companions. However,
a few minutes latter he was back (ibid, p. 8).
Appellant brandished a gun and menacingly entered the restaurant.
Not encountering any resistance, he thus proceeded to the kitchen
where Florida worked (ibid). Stealthily approaching Florida from behind,
appellant fired six successive shots at Florida who fell down (ibid., p. 9).
His evil deed accomplished, appellant left the kitchen and fled (ibid).
Appellant was chased by a man who while running, shouted at
onlookers that the person he was running after was armed and had just
killed somebody. Alerted, SPO2 Fernandez, who was then in the vicinity,
went into action and nabbed appellant. He frisked appellant and
recovered from him a Paltik revolver, caliber. 38, with Serial Number
853169 (Exh. A). He checked the revolver's cylinder and found six empty
 cartridges (Exhs. T to T-6). He noted that it smelled of gunpowder. He and
PO1 Ortega turned over appellant and the confiscated firearm to the
Investigation Division of the Baguio Police and then executed a Joint
Affidavit of Arrest (Exhibit O). On the same night, Fely Batanes gave her
sworn statement (Exhibit E) to the Baguio Police wherein she positively
identified appellant as the assailant.
xxx xxx xxx
NBI Forensic Chemist Ms. Carina Javier found both hands of appellant
positive for nitrates as stated in her Chemist Report No. C-94-22. She
conducted a microscopic chemical examination on the subject firearm
and found that the gun was fired within one week prior to June 27, 1994.
Elmer Nelson Piedad, Ballistician of the Firearm Investigation Division, NBI,
Manila, tested and concluded that the slugs recovered from the victim
were fired from appellant's firearm. Upon verification from the Firearms
Explosive division, Camp Crame, Quezon City, it was found that
appellant is not a licensed firearm holder nor, was the subject firearm
duly registered with the said office (Exh. A). 5 3.01 On June 23, 1994, at a little after five o'clock in the afternoon,
The autopsy conducted by Dr. John Tinoyan on the cadaver of the deceased yielded a
Necropsy Report, which states:
POST MORTEM FINDINGS
Body of a male, 1.66 m. height, medium built, with complete rigor mortis,
lividity well developed on the dependent parts, cloudy cornea and
dilated pupils with very pale papebral conjunctive.
Gunshot wounds: GSW no. 1 measuring 10 x 10 mm. serrated edges,
positive powder burns located at the left mid clavicular line, posterior, 2
inches below the shoulder. It was directed downward towards the mid-
body, penetrating the skin. (sic) soft tissue, middle 3rd of the 3rd rib, the
upper and lower lobes of the left lung to the diaphragm, through and
through the stomach, lacerating the superior mesentric vessels,
perforating the small intestine then lodged at the superior surface of the
urinary bladder (slug was recovered marked no. 1)
GSW no. 2 measures 8 mm. diameter, positive powder burns, located on
the right shoulder near the s. joint posteriorly, penetrating the skin, soft
tissue, then lodged at the surface of the fractured surgical neck of the
humorous (sic) (slug recovered). Marked no. 2.
GSW no. 3 measures 8 mm. Diameter, positive powder burns, located on
the right shoulder posteriorly near the joint penetrating the skin, soft
64
tissues, and the head of the Humorous, (sic) then dislodged form the
same entry point.
GSW no. 4 measures 8 x 10 mm, oval shaped, with abrasion superiorly
located at the anterior left parasternal line at the level of the 6th ICS. It
was directed downward towards the posterior of the body, penetrating
the skin, soft tissue, the left lobe of the liver with partial avulsion, then
perforating the stomach through and though the duodenum lumbar
muscle then lodged underneath the skin, (1) paravertebral, level of L3
(slug recovered marked no. 4).
CAUSE OF DEATH:
HYPOVOLEMIC SHOCK SECONDARY TO MASSIVE HEMORRHAGE;
MULTIPLE GUNSHOT WOUND(S) OF THE LIVER, STOMACH, SMALL INTESTINE
AND MESENTRIC BLOOD VESSELS. Multiple Gunshot Wound(s) of the
body. 6
Accused-appellant admitted shooting the victim but theorized that he acted in self-
defense. As embodied in the Appellant's Brief, the defense version runs thus:
appellant, together with two (2) other companions, entered the People's
Restaurant in Baguio City to order drinks. They sat at a table next to
another then occupied by Marcelino B. Florida, Jr. (Florida) and a
woman companion (TSN, Testimony of Augusto Loreto G. Ringor, Jr., May
4, 1995, pp. 3-6).
3. 02 Soon after receiving their orders, appellant's companion, Ramon
Fernandez, stood up and approached Florida to inquire about his
(Fernandez') brother, Cesar. Florida angrily responded to the query and
said, "Putang ina ninyo! anong pakialam ko diyan!"
3.03 A quarrel thereafter ensued between Fernandez and Florida
prompting the appellant to intervene and pacify Fernandez. When
Fernandez drew out a gun from his waist, appellant immediately seized
the same directing his friend to leave the restaurant before he started
hurting other people with his gun. No sooner had Fernandez stepped
out, however, Florida, armed with a bolo, came charging in from the
kitchen and headed towards the appellant. (Ibid., pp. 6-7)
3.04 Surprised, appellant shot Florida with the gun he was holding just as
the latter was about to hit him with the bolo. Thereafter, appellant put
the gun on the table and walked out of the restaurant. Once already
outside the restaurant, appellant's other companion, Virgilio, followed
him and handed to him the gun he (appellant) left at the table. He then
 proceeded to surrender the gun and report the incident at the nearest
police station. (Ibid., pp. 8-9)
3.05 Before appellant could reach the police station, however, appellant
was already arrested by off-duty policeman who brought him back to
the People's Restaurant. Appellant was thereafter incarcerated at the
Baguio City Police Station. (Ibid., pp. 10-12) 7
On November 13, 1995, the trial court handed down decision under automatic review.
Accused-appellant contends that:
I the incident, the body of the victim was found lying in the kitchen and not outside; thus
THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT FOR SIMPLE
ILLEGAL POSSESSION OF FIREARMS AND SENTENCING HIM TO SUFFER AN
INDETERMINATE SENTENCE OF 17 YEARS AND 1 DAY AS MINIMUM TO 20
YEARS AS MAXIMUM.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF MURDER.
III
THE TRIAL COURT SERIOUSLY ERRED IN SENTENCING THE ACCUSED TO
DEATH ON THE GROUNDS THAT: (i) THE CHARGE OF MURDER WAS NOT
PROVED BY THE PROSECUTION; AND (ii) ASSUMING ARGUENDO THAT
MURDER WAS COMMITTED BY APPELLANT, THE APPROPRIATE PENALTY FOR
THE OFFENSE IS RECLUSION PERPETUA THERE BEING NO AGGRAVATING
CIRCUMSTANCE TO RAISE THE PENALTY TO DEATH. 8 (accused-appellant) was in a prone lying position.
Well-settled is the rule that in interposing self-defense, the offender admits authorship of the
killing. The onus probandi is thus shifted to him to prove the elements of self-defense and
that the killing was justified; otherwise, having admitted the killing, conviction is
9 used was at a distance of less than one meter. 18Evidently, accused-appellant stealthily
inescapable. Concomitantly, he must rely on the strength of his own evidence and not on
the weakness of the prosecution's evidence. 10
For self-defense to prosper, it must be established that: (1) there was unlawful aggression by
the victim; (2) that the means employed to prevent or repel such aggression was
reasonable; and (3) that there was lack of sufficient provocation on the part of person
defending himself. 11
In the case at bar, accused-appellant failed to prove the element of unlawful aggression.
The allegation that the victim allegedly went out of the kitchen armed with a bolo, and was
about to hack him (accused-appellant) who was then at an almost prone lying position on
the table he was occupying, 12 is a self-serving and unconvincing statement which did not
anyway constitute the requisite quantum of proof for unlawful aggression. Prosecution
witness Fely Batanes, a waitress in the restaurant where the shooting incident occurred, was
firm in her declaration that the victim was in the kitchen unarmed 13 when the accused-
65
appellant shot him. The victim had no weapon or bolo. He was neither threatening to
attack nor in any manner manifesting any aggressive act which could have imperiled
accused-appellant's safety and well-being.
No improper motive having been shown on the part of Fely Batanes to testify falsely against
accused-appellant or to implicate him in the commission of the crime, the logical
conclusion is that there was no such improper motive and her testimony is worthy of full
faith and credit. 14
What is more, the testimony of Fely Batanes is buttressed by the fact that immediately after
weakening further the theory of accused-appellant that he shot the victim while they were
at the dining area. 15
Then too, the nature, location and number of gunshot wounds inflicted on the deceased
belie accused-appellant's theory of self-defense. 16 The deceased sustained three gun shot
wounds on the back and one in front. Dr. John Tinoyan, who conducted the autopsy on
the cadaver of the victim, testified that the gunshot wound on the frontal portion of the
victim's body showed a downward trajectory of the bullet on his chest, penetrating the
liver, perforating the stomach down to the small intestine, and then lodged underneath the
skin. 17 Verily, such finding negates the claim of accused-appellant that he shot the victim
while he was at an almost prone lying position and the victim was standing in front of him
about to strike with a bolo. If this were true, the trajectory of the bullet should have been
upward or better still, it should have been at the level at which the gun was fired while he
Rather telling are the three gunshot wounds on the back of the victim, which wounds
showed traces of gunpowder which, according to Dr. Tinoyan, indicated that the weapon
approached the victim from behind and fired at him six successive shots, four of which hit
him, to ensure his death. 19 If he shot the victim merely to defend himself, there would have
been no cause for accused-appellant to pump several bullets into the body of the victim.
In light of the foregoing, the imputation of unlawful aggression on the part of the victim
cannot be believed. Absent the element of unlawful aggression by the deceased, there
can be no self-defense, complete or incomplete. If there was no unlawful aggression, there
was nothing to prevent or repel and the second and third requisites of self-defense would
have no basis. 20
The Court a quo properly appreciated the aggravating circumstance of treachery which
qualified the crime to murder. It was clearly established that the accused-appellant fired six
successive shots on the victim, suddenly, without warning, and from behind, giving the
victim no chance to flee or to prepare for his defense or to put up the least resistance to
such sudden assault. There is treachery when the means, manner or method of attack
employed by the offender offered no risk to himself from any defensive or retaliatory act
which the victim might have taken. 21
All things studiedly considered and viewed in proper perspective, the mind of the Court
can rest easy on a finding that accused-appellant Augusto Loreto Ringor, Jr. is guilty
beyond reasonable doubt of the crime of murder, and did not act in self-defense.
Art. 248 of the Revised Penal Code, as amended, prescribes the penalty of reclusion
perpetua to death for the crime of murder. When, as in this case, neither aggravating nor
mitigating circumstance is attendant, the lesser penalty of reclusion perpetua has to be
applied, 22 in accordance with Article 63(2) of the Revised Penal Code.
With respect to the conviction of accused-appellant for illegal possession of firearms under
P.D. No. 1866, it was held in the case of People vs.
Molina 23 and reiterated in the recent case of People vs. Ronaldo Valdez, 24 that in cases
where murder or homicide is committed with the use of an unlicensed firearm, there can
be no separate conviction for the crime of illegal possession of firearms under P.D. No. 1866
in view of the amendments introduced by Republic Act No. 8294. Thereunder, the use of
unlicensed firearm in murder or homicide is simply considered as an aggravating
circumstance in the murder or homicide and no longer as a separate offense. Furthermore,
the penalty for illegal possession of firearms shall be imposed provided that no other crime
is committed. 25 In other words, where murder or homicide was committed, the penalty for
illegal possession of firearms is no longer imposable since it becomes merely a special
aggravating circumstance. 26
It bears stressing, however, that the dismissal of the present case for illegal possession of
firearm should not be misinterpreted to mean that there can no longer be any prosecution
for the offense of illegal possession of firearms. In general, all pending cases involving illegal
possession of firearms should continue to be prosecuted and tried if no other crimes
expressly provided in R. A. No. 8294 are involved (murder or homicide, under Section 1, and
rebellion, insurrection, sedition or attempted coup d' etat, under Section 3). 27
Pursuant to Article 22 of the Revised Penal Code, where the new law is favorable to the
accused, it has to be applied retroactively. Thus, insofar as it spares accused-appellant a
separate conviction for illegal possession of firearms, Republic Act No. 8294 has to be given
retroactive application in Criminal Case No. 13100-R.
On the matter of the aggravating circumstance of "use of unlicensed firearm" in the
commission of murder or homicide, the trial court erred in appreciating the same to qualify
to death the penalty for the murder committed by accused-appellant. It should be noted
that at the time accused-appellant perpetrated the offense, the unlicensed character of a
firearm used in taking the life of another was not yet an aggravating circumstance in
homicide or murder; to wit:
66
Neither is the second paragraph of Section 1 meant to punish homicide
or murder with death if either crime is committed with the use of an
unlicensed firearm, i.e., to consider such use merely as a qualifying
circumstance and not as an offense. That could not have been the
intention of the lawmaker because the term "penalty" in the subject
provision is obviously meant to be the penalty for illegal possession of
firearm and not the penalty for for homicide or murder. We explicitly
stated in Tac-an:
There is no law which renders the use of an unlicensed
firearm as an aggravating circumstances in homicide
or murder. Under an information charging homicide or
muder,the fact that the death weapon was an
unlicensed firearm cannot be used to increase the
penalty of the second offense of homicide or murder
to death (or reclusion perpetua under 1987
Constitution). The essential point is that the unlicensed
character or condition of the instrument used in
destroying human life or committing some other
crime, is not included on the inventory of aggravating
circumstances set out in Article 14 of the Revised
Penal Code.
A law may, of course, be enacted making the use of an unlicensed
firearm as a qualifying circumstance. 28 (Emphasis supplied)
Thus, before R.A. No. 8294 (which took effect on July 6, 1997) made the use of unlicensed
firearm as an aggravating circumstance in murder or homicide, the penalty for the murder
committed by accused-appellant on June 23, 1994 was not death, as erroneously imposed
by the trial court. There was yet no such aggravating circumstance of use of unlicensed
firearm to raise the penalty for murder from reclusion perpetua to death, at the time of
commission of the crime.
The amendatory law making the "use of an unlicensed firearm" as an aggravating
circumstance in murder or homicide, cannot be applied here because the said provision of
R.A. No. 8294 is not favorable to accused-appellant, lest it becomes an ex post facto law. 29
WHEREFORE, the decision in Criminal Case No. 13102-R is AFFIRMED with the modification
that accused-appellant Augusto Loreto Ringor, Jr. is hereby sentenced to suffer the penalty
of reclusion perpetua. It is understood that the civil liabilities imposed below are UPHELD.
Criminal Case No. 13100-R instituted pursuant to Presidential Decree No. 1866 is DISMISSED.
No pronouncement as to costs.
SO ORDERED.
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-
Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Davide, Jr., C.J. and Panganiban, J., in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 100210 April 1, 1998
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and ANTONIO
A. TUJAN, respondents.
MARTINEZ, J.:
Is the Court of Appeals, in affirming the order of the Regional Trial Court, correct in ruling
that Subversion is the "main offense" in a charge of Illegal Possession of Firearm and
Ammunition in Furtherance of Subversion under P.D. No. 1866, as amended, and that,
therefore, the said charge should be quashed in view of a previous charge
of Subversion under R.A. No. 1700, as amended by P.D. No. 885, against the same accused
pending in another court?
Stated differently, is the accused charged with the same offense in both cases, which
would justify the dismissal of the second charge on the ground of double jeopardy?
This is the pith issue presented before us in this appeal by certiorari interposed by the People
under Rule 45 of the Revised Rules of Court, seeking a review of the decision1 of the Court
of Appeals (Sixteenth Division) dated May 27, 1991, in CA-G.R. SP No. 24273, entitled "THE
PEOPLE OF THE PHILIPPINES, Petitioner, versus HON. OSCAR B. PIMENTEL, as Judge, RTC of
Makati, Metro Manila, Branch 148 and ANTONIO A. TUJAN, Respondents."
The record discloses the following antecedent facts:
As early as 1983, private respondent Antonio Tujan was charged with Subversion under
Republic Act No. 1700 (the Anti-Subversion Law), as amended, before the Regional Trial
Court of Manila (Branch 45), National Capital Region, docketed as Criminal Case No.
64079.2 As a consequence thereof, a warrant for his arrest was issued on July 29, 1983,3
remained unserved as he could not be found.
Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan was arrested on the
basis of the warrant of arrest in the subversion case.4 When arrested, an unlicensed .38
caliber special revolver and six (6) rounds of live ammunition were found in his possession.5
Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal Possession of
Firearm and Ammunition in Furtherance of Subversion under Presidential Decree No. 1866,
as amended, before the Regional Trial Court of Makati (Branch 148), docketed as Criminal
Case No. 1789. The Information reads:
That on or about the 5th day of June, 1990, in the Municipality of Parañaque,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being a member of a communist party of the Philippines,
and its front organization, did then and there willfully, unlawfully and feloniously
have in his possession, control and custody, in furtherance of or incident to, or in
connection with the crime of subversion, a special edition ARMSCOR PHILS. caliber
.38 special revolver with Serial No. 1026387 and with six (6) live ammunitions,
without first securing the necessary license or permit thereof from competent
government authority.6
The above Information recommended no bail for Antonio Tujan, which recommendation
was approved by the trial court in an Order dated June 19, 1990.7 The same order also
directed the continued detention of Antonio Tujan at MIG 15 of the Intelligence Service of
the Armed Forces of the Philippines (ISAFP), Bago Bantay, Quezon City, while his case is
pending.
On June 26, 1990, Antonio Tujan, through counsel, filed a motion8 invoking his right to a
preliminary investigation pursuant to Section 7, Rule 112 of the Revised Rules of Court and
praying that his arraignment be held in abeyance until the preliminary investigation is
terminated.
However, on June 27, 1990, during the hearing of Antonio Tujan's motion for preliminary
investigation, his counsel withdrew the motion since he would file a motion to quash the
Information, for which reason counsel requested a period of twenty (20) days to do so. This
was granted by the trial court on that same day.9
On July 16, 1990, Antonio Tujan did file the motion to quash10 the Information in Criminal
Case No. 1789 on the ground that he "has been previously in jeopardy of being convicted
of the offense charged" in Criminal Case No. 64079 (for subversion) of the Regional Trial
Court of Manila (Branch 45). The said ground is based on Sections 3 (h) and 7, Rule 117 of
the 1985 Rules on Criminal Procedure. In support of the motion, Antonio Tujan contends that
but it "common crimes such as illegal possession of firearms and ammunition should actually be
deemed absorbed in subversion,"11 citing the cases of Misolas vs. Panga, et al. (G.R. No.
83341, January 30, 1990, 181 SCRA 648) and Enrile vs. Salazar, et al. (G.R. No. 92163, June 5,
1990, 186 SCRA 217). Antonio Tujan then avers that "the present case is the twin
67
prosecution" of "the earlier subversion case" and, therefore, he "is entitled to invoke the
constitutional protection against double jeopardy."12
The petitioner opposed13 the motion to quash, arguing that Antonio Tujan does not stand in
jeopardy of being convicted a second time because: (a) he has not even been arraigned
in the subversion case, and (b) the offense charged against him in Criminal Case No. 64079
is for Subversion, punishable under Republic Act No. 1700; while the present case is for
Illegal Possession of Firearm and Ammunition in Furtherance of Subversion, punishable under
a different law (Presidential Decree No. 1866). Moreover, petitioner contends that Antonio
Tujan's reliance on the Misolas and Enrile cases "is misplaced."14 Tujan merely relies on the
dissenting opinions in the Misolas case. Also, the Enrile case which involved a complex
crime of rebellion with murder is inapplicable to the instant case which is not a complex
offense. Thus, the "absorption rule" as held applicable in the Enrile ruling "has no room for
application in the present case because (illegal) possession of firearm and ammunition is
not a necessary means of committing the offense of subversion, nor is subversion a
necessary means of committing the crime of illegal possession of firearm and
ammunition."15
The trial court, in an order dated October 12, 1990, granted the motion to quash the
Information in Criminal Case No. 1789, the dispositive portion of the order reading:
WHEREFORE, the motion to quash the information is hereby GRANTED, but only in
so far as the accused may be placed in jeopardy or in danger of being convicted
or acquitted of the crime of Subversion and as a consequence the Information is
hereby quashed and the case dismissed without prejudice to the filing of Illegal
Possession of Firearm.
SO ORDERED.16
It is best to quote the disquisition of the respondent court in quashing the information and
dismissing the case:
xxx xxx xxx
In other words, the main offense the accused is being charged in this case is also
Subversion considering that the alleged Illegal Possession of the Firearm and
Ammunition is only in furtherance thereof.
Now, subversion being a continuing offense as has been previously held by the
Supreme Court, the fact that the accused has been previously charged of
Subversion before another court before the institution of this instant case is just a
continuing offense of his former charge or that his acts constituting subversion is a
continuation of the acts he committed before.
The court therefore cannot subscribe to the position taken by the prosecution that
this case is very different from the other case and that double jeopardy will attach
in this particular case.
68
This court agrees with the position taken by the defense that double jeopardy will
attach to the accusation of subversion, punishable now under Republic Act 1700,
as Rule 117 of the Rules of Court particularly Section 1 thereof, provides:
Time to move to quash — At anytime before entering his plea,
the accused may move to quash the complaint or
information.(la)
In other words, there is no necessity that the accused should be arraigned first
before he can move to quash the information. It is before he pleads which the
accused did in this case.
On the other submissions by the prosecution, that the possession of firearms and
ammunitions is not a necessary means of committing the offense of subversion or
vice versa, then if the court follows such argument, there could be no offense of
Illegal Possession of Firearm and Ammunition in furtherance of Subversion, for even
the prosecution admits also that in subversion which is an offense involving
propaganda, counter propaganda, a battle of the hearts and mind of the
people does not need the possession or use of firearms and ammunitions.
The prosecution even admits and to quote:
The defense of double jeopardy. while unquestionably
available to the accused, had not been clearly shown to be
invokable(sic) at this point in time.
But the rule says otherwise as previously stated as provided for under Section 1 of
Rule 117 of the Rules of Court.
Thus, if ever the accused is caught in possession of a firearm and ammunition
which is separate and distinct from the crime of subversion and is not a necessary
ingredient thereof and the court believed so, the prosecution will have to file
another information as they may wish. The court therefore has to grant the motion
to quash on the aforestated grounds, subject to Section 5 of Rule 117, considering
that the only offense to which the accused in this case may be placed in
jeopardy is Subversion and not Illegal Possession of Firearms and Ammunitions.
The prosecution may file any information as warranted within ten (10) days from
receipt of this order otherwise the court will order the release of the accused,
unless he is in custody for some other offense.17(Emphasis ours)
Petitioner's motion for reconsideration18 was also denied in an order dated December 28,
1990.19
The petitioner elevated the case to the Court of Appeals through a petition for certiorari,
docketed as CA-G.R. SP No. 24273. However, the appellate court found that the trial court
did not commit any grave abuse of discretion amounting to lack or excess of jurisdiction in
quashing the questioned Information. In dismissing the petition, the appellate court, in its
decision dated May 27, 1991, basically reiterated the aforequoted ruling of the trial court.
Petitioner now comes to this Court, claiming that: (1) the decision of the Court of Appeals is
not in accord with the law and applicable jurisprudence; and (2) it was deprived of due
process to prosecute and prove its case against private respondent Antonio Tujan in
Criminal Case No. 1789.
We agree with the petitioner.
The Court of Appeals considered as duplicitous the Information for violation of P.D. No. 1866
filed against private respondent Antonio Tujan. It ruled:
The foregoing information (for Illegal Possession of Firearm and Ammunition in
Furtherance of Subversion) filed before the Makati court shows that the main case
is subversion considering that there is an allegation that the alleged illegal
possession of firearms was made "in furtherance of or incident to, or in connection
with the crime of subversion." Also, the information alleged likewise that the
accused is a member of a communist party of the Philippines and its front
organization. Basically, the information refers to the crime of Subversion qualified
by Illegal Possession of Firearms. . . .20
The ruling of the Court of Appeals is erroneous.
Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is charged in Criminal
Case No. 1789 before the Regional Trial Court of Makati (Branch 148), provides as follows:
Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of
Firearms or Ammunition or Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or posses any firearms, part
of firearm, ammunition, or machinery, tool or instrument used or intended to be
used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearms, the
penalty of death shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in connection
with the crimes of rebellion, insurrection or subversion, the penalty of death shall
be imposed.
The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon the owner, president, manager, director or other
responsible officer of any public or private firm, company, corporation or entity,
who shall willfully or knowingly allow any of the firearms owned by such firm,
company, corporation or entity to be used by any person or persons found guilty
of violating the provisions of the preceding paragraphs.
69
The penalty of prision mayor shall be imposed upon any person who shall carry
any licensed firearm outside his residence without legal authority therefor.
(Emphasis ours)
The above-quoted provisions of P.D. No. 1866 are plain and simple. Under the first
paragraph of Section 1, the mere possession of an unlicensed firearm or ammunition is the
crime itself which carries the penalty of reclusion temporal in its maximum period
to reclusion perpetua. The third paragraph of the same Section makes the use of said
firearm and ammunition "in furtherance of, or incident to, or in connection with the crimes
of rebellion, insurrection or subversion" a circumstance to increase the penalty to death.
Thus, the allegation in the Information in Criminal Case No. 1789 that the unlicensed firearm
found in the possession of Antonio Tujan, "a member of the communist party of the
Philippines and its front organization," was used "in furtherance of or incident to, or in
connection with the crime of subversion" does not charge him with the separate and
distinct crime of Subversion in the same Information, but simply describes the mode or
manner by which the violation of Section 1 of P.D. No. 1866 was committed21 so as to
qualify the penalty to death.
There is, therefore, only one offense charged in the questioned information, that is, the
illegal possession of firearm and ammunition, qualified by its being used in furtherance of
subversion.22 There is nothing in P.D. No. 1866, specifically Section 1 thereof, which decrees
categorically or by implication that the crimes of rebellion, insurrection or subversion are the
very acts that are being penalized. This is clear from the title of the law itself which boldly
indicates the specific acts penalized under it:
CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION,
MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF
FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED
IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR
EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN
VIOLATIONS THEREOFAND FOR RELEVANT PURPOSES. (Emphasis
ours)
On the other hand, the previous subversion charge against Antonio Tujan in Criminal Case
No. 64079, before the Regional Trial Court of Manila (Branch 45), is based on a different law,
that is, Republic Act No. 1700, as amended. Section 3 thereof penalizes any person who
"knowingly, willfully and by overt act affiliates with, becomes or remains a member of a
subversive association or organization . . ." Section 4 of said law further penalizes "such
member [of the Communist Party of the Philippines and/or its successor or of any subversive
association] (who) takes up arms against the Government." Thus, in the present case,
private respondent Antonio Tujan could be charged either under P.D. No. 1866 or R.A. No.
1700,23 or both.
This leads us to the issue of whether or not private respondent Antonio Tujan was placed in
double jeopardy with the filing of the second Information for Illegal Possession of Firearm
and Ammunition in Furtherance of Subversion.
We rule in the negative.
Article III of the Constitution provides:
Sec. 21. No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for the same act.
(Emphasis ours)
Complementing the above constitutional provision, Rule 117 of the Revised Rules of Court
states:
Sec. 7. Former conviction or acquittal; double jeopardy. — When an accused has
been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction, upon
a valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any attempt
to commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former complaint
or information.
xxx xxx xxx
The right of an accused against double jeopardy is a matter which he may raise in a
motion to quash to defeat a subsequent prosecution for the same offense. The pertinent
provision of Rule 117 of the Revised Rules of Court provides:
Sec. 3. Grounds. — The accused may move to quash the complaint or information
on any of the following grounds:
xxx xxx xxx
(h) That the accused has been previously convicted or in jeopardy of being
convicted, or acquitted of the offense charged. (2a) (Emphasis ours)
In order that the protection against double jeopardy may inure to the benefit of an
accused, the following requisites must have obtained in the first criminal action: (a) a valid
complaint or information; (b) a competent court; (c) the defendant had pleaded to the
charge;24 and (d) the defendant was acquitted, or convicted, or the case against him was
dismissed or otherwise terminated without his express consent.25
Suffice it to say that in the present case, private respondent's motion to quash filed in the
trial court did not actually raise the issue of double jeopardy simply because it had not
arisen yet. It is noteworthy that the private respondent has not even been arraigned in the
70
first criminal action for subversion. Besides, as earlier discussed, the two criminal charges
against private respondent are not of the same offense as required by Section 21, Article III
of the Constitution.
It is clear from the foregoing, that the assailed decision of the Court of Appeals is not in
accordance with the law and jurisprudence and thus should be reversed.
While we hold that both the subversion charge under R.A. No. 1700, as amended, and the
one for illegal possession of firearm and ammunition in furtherance of subversion under P.D.
No. 1866, as amended, can co-exist, the subsequent enactment of Republic Act No. 7636
on September 22, 1992, totally repealing R.A. No. 1700, as amended, has substantially
changed the complexion of the present case, inasmuch as the said repealing law being
favorable to the accused-private respondent, who is not a habitual delinquent, should be
given retroactive effect.26
Although this legal effect of R.A. No. 7636 on private-respondent's case has never been
raised as an issue by the parties — obviously because the said law came out only several
months after the questioned decision of the Court of Appeals was promulgated and while
the present petition is pending with this Court — we should nonetheless fulfill our duty as a
court of justice by applying the law to whomsoever is benefited by it regardless of whether
or not the accused or any party has sought the application of the beneficent provisions of
the repealing law.27
That R.A. No. 7636 should apply retroactively to accused-private respondent is beyond
question. The repeal by said law of R.A. No. 1700, as amended, was categorical, definite
and absolute. There was no saving clause in the repeal. The legislative intent of totally
abrogating the old anti-subversion law is clear. Thus, it would be illogical for the trial courts
to try and sentence the accused-private respondent for an offense that no longer exists.28
As early as 1935, we ruled in People vs. Tamayo:29
There is no question that at common law and in America a much more favorable
attitude towards the accused exists relative to statutes that have been repealed
than has been adopted here. Our rule is more in conformity with the Spanish
doctrine, but even in Spain, where the offense ceases to be criminal, prosecution
cannot be had. (1 Pacheco Commentaries, 296) (Emphasis ours)
Where, as here, the repeal of a penal law is total and absolute and the act with was
penalized by a prior law ceases to be criminal under the new law, the previous offense is
obliterated.30 It is a recognized rule in this jurisdiction that a total repeal deprives the courts
of jurisdiction to try, convict and sentence persons charged with violation of the old law
prior to the repeal.31
With the enactment of R.A. No. 7636, the charge of subversion against the accused-private
respondent has no more legal basis and should be dismissed.
As regards the other charge of illegal possession of firearm and ammunition, qualified by
subversion, this charge should be amended to simple illegal possession of firearm and
ammunition since, as earlier discussed, subversion is no longer a crime.
Moreover, the offense of simple illegal possession of firearm and ammunition is now bailable
under Republic Act No. 8294 which was enacted on June 6, 1997. R.A. No. 8294 has
amended Presidential Decree No. 1866, as amended, by eliminating the provision in said
P.D. that if the unlicensed firearm is used in furtherance of subversion, the penalty of death
shall he imposed.32 Under the new law (R.A. No. 8294), the penalty prescribed for simple
illegal possession of firearm (.38 caliber) is now reduced to prision correccional in its
maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00).33 The
reduced penalty of imprisonment — which is four (4) years, two (2) months and one (1) day
to six (6) years — entitles the accused-private respondent to bail. Considering, however,
that the accused-private respondent has been detained since his arrest on June 5, 1990 up
to the present (as far as our record has shown), or more than seven (7) years now, his
immediate release is in order. This is so because even if he were convicted for illegal
possession of firearm and ammunition, the length of his detention while his case is pending
has already exceeded the penalty prescribed by the new law.
WHEREFORE, the assailed decision of the Court of Appeals dated May 27, 1991, in CA-G.R.
SP No. 24273, including the orders dated October 12, 1990 and December 28, 1990 of the
Regional Trial Court of Makati (Branch 148), National Capital Region, in Criminal Case No.
1789, are hereby REVERSED and SET ASIDE.
The subversion charge against accused-private respondent Antonio A. Tujan in Criminal
Case No. 64079 of the Regional Trial Court of Manila, Branch 45, is hereby DISMISSED.
The other Information for illegal possession of firearm and ammunition in furtherance of
subversion against the same accused in Criminal Case No. 1789 of the Regional Trial Court
of Makati, Branch 148, is DEEMED AMENDED to Simple Illegal Possession of Firearm and
Ammunition. The accused-appellant is hereby ordered RELEASED IMMEDIATELY from
detention for the reason stated above, unless he is being detained for any other offense.
This decision is IMMEDIATELY EXECUTORY.
No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing and Purisima, JJ., concur.
EN BANC
G.R. No. 149453 October 7, 2003
71
PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR GENERAL OF THE
PHILIPPINE NATIONAL POLICE, CHIEF STATE PROSECUTOR JOVENCITO ZUÑO, STATE
PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY PROSECUTOR
CONRADO M. JAMOLIN and CITY PROSECUTOR OF QUEZON CITY CLARO
ARELLANO, petitioners,
vs.
PANFILO M. LACSON, respondent.
RESOLUTION
CALLEJO, SR., J.:
Before the Court are the following motions of the respondent, to wit: (a) Omnibus
Motion;1 (b) Motion for Reconsideration;2 (c) Supplement to Motion for Reconsideration;3 (d)
Motion To Set for Oral Arguments.4
The Omnibus Motion
The respondent seeks the reconsideration of the April 29, 2003 Resolution of this Court which
granted the petitioners’ motion for reconsideration. The respondent thereafter prays to
allow Associate Justices Renato C. Corona, Ma. Alicia Austria-Martinez, Conchita C.
Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna to voluntary inhibit themselves or,
absent their consent, rule that such inhibition is in order and to recuse them from further
deliberating, discussing or, in any manner, participating in the resolution of the Motion for
Reconsideration and the Supplement to Motion for Reconsideration. The respondent points
out that the aforenamed members of the Court were appointed by President Gloria
Macapagal-Arroyo after the February 19, 2002 oral arguments and after the case at bar
was submitted for the decision of the Court. He asserts that although A.M. No. 99-8-09-
SC5 specifically provides that it applies only to the divisions of the Court, it should likewise
apply to this case, in light of the April 1, 2003 Resolution of this Court which set aside its
Resolution dated May 28, 2002, apart from the constitutional issues raised by the
respondent in his motion for reconsideration and its supplement. As such, according to the
respondent, the instant case should be unloaded by Justice Callejo, Sr. and re-raffled to
any other member of the Court.
The Court resolves to deny the respondent’s motion for lack of merit.
The records show that as early as May 24, 2002, the respondent filed an urgent motion for
the recusation of Justices Renato C. Corona and Ma. Alicia Austria-Martinez for the reason
that they were appointed to the Court after the February 19, 2002 oral arguments and did
not participate in the integral portions of the proceedings. Justices Corona and Austria-
Martinez refused to inhibit themselves and decided to participate in the deliberation on the
petition.6 On March 18, 2003, the respondent filed a motion with the Court for the recusation
of Justice Romeo J. Callejo, Sr. on account of his voluntary inhibition when the case was
pending before the Court of Appeals.
On March 25, 2003, this Court issued a resolution denying the respondent’s Motion dated
March 18, 2003. The respondent thereafter filed his motion for reconsideration of the April 1,
2003 Resolution of the Court in which he prayed, inter alia, for the inhibition of Justice
Callejo, Sr. under A.M. No. 99-8-09-SC and that the case be re-raffled to another member of
the Court who had actually participated in the deliberation and the rendition of its May 28,
2002 Resolution. The respondent likewise sought the inhibition of Justices Conchita C.
Morales and Adolfo S. Azcuna, again for the reason that they were appointed to the Court
after the oral arguments on February 19, 2002 and after the case had already been
submitted for decision.
On April 29, 2003, this Court issued a resolution denying the aforesaid motions of the
respondent.7 The Court ruled that A.M. No. 99-8-09-SC is applicable only to cases assigned
to the divisions of the Court:
The respondent’s reliance on Supreme Court Circular No. 99-8-09 is misplaced. As admitted
by the respondent, the said circular is applicable only to motions for reconsideration in
cases assigned to the Divisions of the Court. For cases assigned to the Court En Banc, the
policy of the Court had always been and still is, if the ponente is no longer with the Court,
his replacement will act upon the motion for reconsideration of a party and participate in
the deliberations thereof. This is the reason why Justice Callejo, Sr. who had replaced retired
Justice De Leon, prepared the draft of the April 1, 2003 Resolution of the Court.8
The Court also ruled that there was no need for its newest members to inhibit themselves
from participating in the deliberation of the respondent’s Motion for Reconsideration:
Although Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna
were not yet members of the Court during the February 18, 20029 oral arguments before the
Court, nonetheless they were not disqualified to participate in the deliberations on the
petitioner’s motion for reconsideration of the May 28, 2002 Resolution of the Court or of the
instant motion for reconsideration. Neither is Justice Callejo, Sr. disqualified to prepare the
resolution of the Court on the motion for reconsideration of the respondent. When the
Court deliberated on petitioners’ motion for reconsideration, Justices Conchita Carpio-
Morales, Romeo J. Callejo, Sr. and Adolfo S. Azcuna were already members of the Court.
It bears stressing that transcripts of stenographic notes taken during the February 18, 2002
hearing and oral arguments of the parties are parts of the records of this case. Said
transcripts are available to the parties or to any member of the Court. Likewise, Attys. Rene
A.V. Saguisag and Felix Carao, Jr. may not yet have been the counsel of the respondent
on February 18, 2002 but by reading the said transcripts and the records of this case they
are informed of what transpired during the hearing and oral arguments of the parties.10
It is thus clear that the grounds cited by the respondent in his omnibus motion had already
been passed upon and resolved by this Court. The respondent did not make any new
72
substantial arguments in his motion to warrant a reconsideration of the aforesaid
resolutions.
Besides, the respondent sought the inhibition of Justices Conchita C. Morales and Adolfo S.
Azcuna only after they had already concurred in the Court’s Resolution dated April 1, 2003.
Case law has it that a motion for disqualification must be denied when filed after a
member of the Court has already given an opinion on the merits of the case, the rationale
being that a litigant cannot be permitted to speculate upon the action of the Court, only
to raise an objection of this sort after a decision has been rendered.11
The Motion to Set the Case for Oral Arguments
The Court denies the motion of the respondent. The parties have already extensively
discussed the issues involved in the case. The respondent’s motion for reconsideration
consists of no less than a hundred pages, excluding the supplement to his motion for
reconsideration and his reply to the petitioners’ comment on his motion. There is no longer a
need to set the instant case for oral arguments.
The Issue as to the Application of the Time-bar under Section 8, Rule 117 of the Revised
Rules of Criminal Procedure – Whether Prospective or Retroactive
The respondent seeks the reconsideration of the April 1, 2003 Resolution of the Court and
thereafter reinstate its Resolution of May 28, 2002.
He asserts that pursuant to a long line of jurisprudence and a long-standing judicial practice
in applying penal law, Section 8, Rule 117 of the Revised Rules of Criminal Procedure (RRCP)
should be applied prospectively and retroactively without reservations, only and solely on
the basis of its being favorable to the accused. He asserts that case law on the retroactive
application of penal laws should likewise apply to criminal procedure, it being a branch of
criminal law. The respondent insists that Section 8 was purposely crafted and included as a
new provision to reinforce the constitutional right of the accused to a speedy disposition of
his case. It is primarily a check on the State to prosecute criminal cases diligently and
continuously, lest it loses its right to prosecute the accused anew. The respondent argues
that since Section 8 is indubitably a rule of procedure, there can be no other conclusion:
the rule should have retroactive application, absent any provision therein that it should be
applied prospectively. Accordingly, prospective application thereof would in effect give
the petitioners more than two years from March 29, 1999 within which to revive the criminal
cases, thus violating the respondent’s right to due process and equal protection of the law.
The respondent asserts that Section 8 was meant to reach back in time to provide relief to
the accused. In this case, the State had been given more than sufficient opportunity to
prosecute the respondent anew after the March 29, 1999 dismissal of the cases by then
Judge Wenceslao Agnir, Jr. and even before the RRCP took effect on December 1, 2000.
According to the respondent, the petitioners filed the Informations with the RTC in Criminal
Cases Nos. 01-101102 to 01-101112 beyond the two-year bar, in violation of his right to a
speedy trial, and that such filing was designed to derail his bid for the Senate.
In their comment on the respondent’s motions, the petitioners assert that the prospective
application of Section 8 is in keeping with Section 5(5), Article VIII of the 1987 Constitution,
which provides in part that the rules of procedure which the Court may promulgate shall
not diminish, increase or modify substantial rights. While Section 8 secures the rights of the
accused, it does not and should not preclude the equally important right of the State to
public justice. If such right to public justice is taken away, then Section 8 can no longer be
said to be a procedural rule. According to the petitioners, if a procedural rule impairs a
vested right, or would work injustice, the said rule may not be given a retroactive
application. They contend that the right of the accused to a speedy trial or disposition of
the criminal cases applies only to outstanding and pending cases and not to cases already
dismissed. The petitioners assert that the "refiling of the cases" under Section 8 should be
taken to mean as the filing of the criminal complaint with the appropriate office for the
purpose of conducting a preliminary investigation, and not the actual filing of the criminal
complaint or information in court for trial. Furthermore, according to the petitioners, the
offended parties must be given notices of the motion for provisional dismissal of the cases
under Section 8 since the provision so expressly states. Thus, if the requisite notices to the
heirs of the deceased would be taken into consideration, the two-year period had not yet
even commenced to run.
In his consolidated reply to the comment of the petitioners, the respondent asserts that the
State is proscribed from refiling a criminal case if it can be shown that the delay resulted in
a violation of the right of the accused to due process. In this case, there was an inordinate
delay in the revival of the cases, considering that the witnesses in the criminal cases for the
State in March 1999 are the same witnesses in 2001. The State had reasonable opportunity
to refile the cases before the two-year bar but failed to do so because of negligence; and
perhaps institutional indolence. Contrary to the petitioners’ contention, the respondent
posits that the revival of the cases contemplated in Section 8 refers to the filing of the
Informations or complaints in court for trial. The operational act then is the refiling of the
Informations with the RTC, which was done only on June 6, 2001, clearly beyond the two-
year bar.
The Court finds the respondent’s contentions to be without merit.
First. The Court approved the RRCP pursuant to its power under Article VIII, Section 5,
paragraph 5 of the Constitution which reads:
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform
73
for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court.
The Court is not mandated to apply Section 8 retroactively simply because it is favorable to
the accused. It must be noted that the new rule was approved by the Court not only to
reinforce the constitutional right of the accused to a speedy disposition of the case. The
time-bar under the new rule was fixed by the Court to excise the malaise that plagued the
administration of the criminal justice system for the benefit of the State and the accused;
not for the accused only. The Court emphasized in its assailed resolution that:
In the new rule in question, as now construed by the Court, it has fixed a time-bar of one
year or two years for the revival of criminal cases provisionally dismissed with the express
consent of the accused and with a priori notice to the offended party. The time-bar may
appear, on first impression, unreasonable compared to the periods under Article 90 of the
Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal
interests and those of the accused for the orderly and speedy disposition of criminal cases
with minimum prejudice to the State and the accused. It took into account the substantial
rights of both the State and of the accused to due process. The Court believed that the
time limit is a reasonable period for the State to revive provisionally dismissed cases with the
consent of the accused and notice to the offended parties. The time-bar fixed by the Court
must be respected unless it is shown that the period is manifestly short or insufficient that the
rule becomes a denial of justice.12
In criminal litigations concerning constitutional issue claims, the Court, in the interest of
justice, may make the rule prospective where the exigencies of the situation make the rule
prospective. The retroactivity or non-retroactivity of a rule is not automatically determined
by the provision of the Constitution on which the dictate is based. Each constitutional rule
of criminal procedure has its own distinct functions, its own background or precedent, and
its own impact on the administration of justice, and the way in which these factors combine
must inevitably vary with the dictate involved.13
Matters of procedure are not necessarily retrospective in operation as a statute.14 To
paraphrase the United States Supreme Court per Justice Benjamin Cardozo, the Court in
defining the limits of adherence may make a choice for itself between the principle of
forward operation and that of relating forward.15
The Court approved Section 8 pursuant to its power under Article VIII, Section 5, paragraph
5 of the Constitution. This constitutional grant to promulgate rules carries with it the power,
inter alia, to determine whether to give the said rules prospective or retroactive effect.
Moreover, under Rule 144 of the Rules of Court, the Court may not apply the rules to actions
pending before it if in its opinion their application would not be feasible or would work
injustice, in which event, the former procedure shall apply.16
The absence of a provision in Section 8 giving it prospective application only does not
proscribe the prospective application thereof; nor does it imply that the Court intended the
new rule to be given retroactive and prospective effect. If the statutory purpose is clear,
the provisions of the law should be construed as is conducive to fairness and justice, and in
harmony with the general spirit and policy of the rule. It should be construed so as not to
defeat but to carry out such end or purpose.17 A statute derives its vitality from the purpose
for which it is approved. To construe it in a manner that disregards or defeats such purpose
is to nullify or destroy the law.18 In Cometa v. Court of Appeals,19 this Court ruled that "the
spirit rather than the letter of the statute determines its construction; hence, a statute must
be read according to its spirit or intent."20 While we may not read into the law a purpose
that is not there, we nevertheless have the right to read out of it the reason for its
enactment. In doing so, we defer not to the "letter that killeth" but to the "spirit that vivifieth,
to give effect to the lawmaker’s will."21
In this case, when the Court approved Section 8, it intended the new rule to be applied
prospectively and not retroactively, for if the intention of the Court were otherwise, it would
defeat the very purpose for which it was intended, namely, to give the State a period of
two years from notice of the provisional dismissal of criminal cases with the express consent
of the accused. It would be a denial of the State’s right to due process and a travesty of
justice for the Court to apply the new rule retroactively in the present case as the
respondent insists, considering that the criminal cases were provisionally dismissed by Judge
Agnir, Jr. on March 29, 1999 before the new rule took effect on December 1, 2000. A
retroactive application of the time-bar will result in absurd, unjust and oppressive
consequences to the State and to the victims of crimes and their heirs.
Consider this scenario: the trial court (RTC) provisionally dismissed a criminal case with the
express consent of the accused in 1997. The prosecution had the right to revive the case
within the prescriptive period, under Article 90 of the Revised Penal Code, as amended. On
December 1, 2000, the time-bar rule under Section 8 took effect, the prosecution was
unable to revive the criminal case before then.
If the time-bar fixed in Section 8 were to be applied retroactively, this would mean that the
State would be barred from reviving the case for failure to comply with the said time-bar,
which was yet to be approved by the Court three years after the provisional dismissal of the
criminal case. In contrast, if the same case was dismissed provisionally in December 2000,
the State had the right to revive the same within the time-bar. In fine, to so hold would imply
that the State was presumed to foresee and anticipate that three years after 1997, the
Court would approve and amend the RRCP. The State would thus be sanctioned for its
failure to comply with a rule yet to be approved by the Court. It must be stressed that the
institution and prosecution of criminal cases are governed by existing rules and not by rules
yet to exist. It would be the apex of injustice to hold that Section 8 had a platonic or ideal
74
existence before it was approved by the Court. The past cannot be erased by a capricious
retroactive application of the new rule.
In holding that the petitioners had until December 1, 2002 within which to revive the
criminal cases provisionally dismissed by Judge Agnir, Jr. on March 29, 1999, this Court
explained, thus:
The Court agrees with the petitioners that to apply the time-bar retroactively so that the
two-year period commenced to run on March 31, 1999 when the public prosecutor
received his copy of the resolution of Judge Agnir, Jr. dismissing the criminal cases is
inconsistent with the intendment of the new rule. Instead of giving the State two years to
revive provisionally dismissed cases, the State had considerably less than two years to do
so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-81679 to Q-99-81689 on March
29, 1999. The new rule took effect on December 1, 2000. If the Court applied the new time-
bar retroactively, the State would have only one year and three months or until March 31,
2001 within which to revive these criminal cases. The period is short of the two-year period
fixed under the new rule. On the other hand, if the time limit is applied prospectively, the
State would have two years from December 1, 2000 or until December 1, 2002 within which
to revive the cases. This is in consonance with the intendment of the new rule in fixing the
time-bar and thus prevent injustice to the State and avoid absurd, unreasonable,
oppressive, injurious, and wrongful results in the administration of justice.
The period from April 1, 1999 to November 30, 199922 should be excluded in the
computation of the two-year period because the rule prescribing it was not yet in effect at
the time and the State could not be expected to comply with the time-bar. It cannot even
be argued that the State waived its right to revive the criminal cases against respondent or
that it was negligent for not reviving them within the two-year period under the new
rule.1a\^/phi1.net As the United States Supreme Court said, per Justice Felix Frankfurter, in
Griffin v. People, 351 US 12 (1956):
We should not indulge in the fiction that the law now announced has always been the law
and, therefore, that those who did not avail themselves of it waived their rights …
The two-year period fixed in the new rule is for the benefit of both the State and the
accused. It should not be emasculated and reduced by an inordinate retroactive
application of the time-bar therein provided merely to benefit the accused. For to do so
would cause an "injustice of hardship" to the State and adversely affect the administration
of justice in general and of criminal laws in particular.23
Further quoting Justice Felix Frankfurter’s opinion in Griffin v. People,24 he said, "it is much
more conducive to law’s self-respect to recognize candidly the considerations that give
prospective content to a new pronouncement of law. That this is consonant with the spirit
of our law and justified by those considerations of reason which should dominate the law
has been luminously expounded by Mr. Justice Cardozo shortly before he came here and
in an opinion which he wrote for the Court."
Parenthetically, the respondent himself admitted in his motion for reconsideration that
Judge Agnir, Jr. could not have been expected to comply with the notice requirement
under the new rule when it yet had to exist:
99. Respondent submits that the records are still in the same state of inadequacy and
incompletion. This however is not strange considering that Section 8, Rule 117 had not
existed on March 29, 1999, when the criminal cases were dismissed, and then Judge Agnir
did not have its text to guide his actions. How could the good judge have complied with
the mandate of Section 8, Rule 117 when it yet had to exist?25
Statutes regulating the procedure of the courts will be construed as applicable to actions
pending and undetermined at the time of their passage. In that sense and to that extent,
procedural laws are retroactive.26 Criminal Cases Nos. Q-99-81679 to Q-99-81689 had long
been dismissed by Judge Agnir, Jr. before the new rule took effect on December 1, 2000.
When the petitioners filed the Informations in Criminal Cases Nos. 01-101102 to 01-101112 on
June 6, 2001, Criminal Cases Nos. Q-99-81679 and Q-99-81689 had long since been
terminated. The two-year bar in the new rule should not be reckoned from the March 29,
1999 dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 but from December 1, 2000
when the new rule took effect. While it is true that the Court applied Section 8 of Rule
11027 of the RRCP retroactively, it did so only to cases still pending with this Court and not to
cases already terminated with finality.
The records show that after the requisite preliminary investigation conducted by the
petitioners in accordance with existing rules, eleven Informations in Criminal Cases Nos. 01-
101102 to 01-101112 were filed with the RTC on June 6, 2001, very well within the time-bar
therefor. The respondent cannot argue that his right to due process and to a speedy
disposition of the cases as enshrined in the Constitution had been violated.28
The respondent’s plaint that he was being singled out by the prospective application of the
new rule simply because before the Court issued its April 1, 2003 Resolution, he announced
his candidacy for the presidency of the Republic for the 2004 elections has no factual basis
whatsoever.29 The bare and irrefutable fact is that it was in this case where the issue of the
retroactive/prospective application of the new rule was first raised before the Court. The
ruling of the Court in its April 1, 2003 Resolution and its ruling today would be the same,
regardless of who the party or parties involved are, whether a senator of the Republic or an
ordinary citizen.
The respondent’s contention that the prospective application of the new rule would deny
him due process and would violate the equal protection of laws is barren of merit. It
proceeds from an erroneous assumption that the new rule was approved by the Court
solely for his benefit, in derogation of the right of the State to due process. The new rule was
75
approved by the Court to enhance the right of due process of both the State and the
accused. The State is entitled to due process in criminal cases as much as the accused.
Due process has never been and perhaps can never be precisely defined.1a\^/phi1.net It
is not a technical conception with a fixed content unrelated to time, place and
circumstances. The phrase expresses the requirement of fundamental fairness, a requisite
whose meaning can be as opaque as its importance is lofty.30 In determining what
fundamental fairness consists of in a particular situation, relevant precedents must be
considered and the interests that are at stake; private interests, as well as the interests of
the government must be assessed. In this case, in holding that the new rule has prospective
and not retroactive application, the Court took into consideration not only the interests of
the respondent but all other accused, whatever their station in life may be. The interest of
the State in the speedy, impartial and inexpensive disposition of criminal cases was likewise
considered.
The Respondent Failed to Comply with the Essential Prerequisites of Section 8, Rule 117 of
the Revised Rules of Criminal Procedure
The respondent argues that the issue involved in the Court of Appeals is entirely different
from the issue involved in the present recourse; hence, any admissions he made in the court
below are not judicial admissions in this case. He asserts that the issue involved in the CA
was whether or not he was placed in double jeopardy when he was charged with murder
in Criminal Cases Nos. 01-101102 to 01-101112 despite the dismissal of Criminal Cases Nos.
Q-99-81679 to Q-99-81689; whereas the issue in this Court is whether the prosecution of
Criminal Cases Nos. 01-101102 to 01-101112 was barred by Section 8, Rule 117 of the RRCP.
The respondent avers that the proceedings in the appellate court are different from those
in this Court.
The respondent posits that this Court erred in giving considerable weight to the admissions
he made in his pleadings and during the proceedings in the CA. He stresses that judicial
admissions may only be used against a party if such admissions are (a) made in the course
of the proceedings in the same case; and (b) made regarding a relevant fact, pursuant to
Section 4, Rule 129 and Section 26, Rule 130 of the Rules of Evidence. He contends that
contrary to the ruling of the Court, when he filed his motion for the judicial determination of
probable cause in Criminal Cases Nos. Q-99-81679 to Q-99-81689, he thereby prayed for the
dismissal of the said cases. His motion carried with it, at the very least, the prayer for the
dismissal of the criminal cases. Absent a finding of probable cause, Judge Agnir, Jr. had no
recourse but to dismiss the criminal cases. Moreover, the respondent avers that his motion
included the general prayer "for such other reliefs as may be equitable in the premises." The
respondent also points out that the public prosecutor agreed to the averments in his
motion as the latter did not even file any motion for the reconsideration of Judge Agnir, Jr.’s
order dismissing the cases.
The respondent further contends that the Court is not a trier of facts. It has no means to (e) the new criminal cases for Murder filed by respondents against petitioner and the other
ascertain or verify as true the contrasting claims of the parties on the factual issues, a accused on June 6, 2001 (docketed as Criminal Cases Nos. 01-101102 to 01-101112) and
function best left to the trial court as the trier of facts. He posits that there is a need for the pending before respondent Judge Yadao (Annex B) is dismissible on its face as they involve
case to be remanded to the RTC to enable him to present evidence on whether or not exactly the same accused, facts, and offenses which had previously been dismissed by the
Judge Agnir, Jr. complied with the notice requirements of Section 8. Echoing the May 28, QC RTC in Criminal Cases Nos. Q-99-81679 to 89 on March 29, 1999, hence, can no longer
2002 ruling of this Court, the respondent contends that it is not fair to expect the element of be revived two (2) years after such dismissal in accordance with the clear provisions of
notice under Section 8 to be litigated before Judge Agnir, Jr., for the said rule was not yet in Section 8, Rule 117.35
existence at the time he filed his motion for a determination of probable cause. Indeed, the CA granted the respondent’s petition based on Section 8, Rule 117 of the
The respondent avers that the requirement for notices to the offended parties under RRCP. In this case, the respondent invoked the same rule and the Constitution. Thus, during
Section 8 is a formal and not an essential requisite. In criminal cases, the offended party is the oral arguments in this Court, the respondent, through counsel, admitted that he was
the State and the role of the private complainant is limited to the determination of the civil indeed invoking Section 8 anew and the provisions of the Constitution on double jeopardy:
liability of the accused. According to the respondent, notice to the prosecution provides JUSTICE PANGANIBAN:
sufficient safeguard for the private complainant to recover on the civil liability of the You are saying that Sen. Lacson can no longer be prosecuted forever for that
accused based on the delicts; after all, the prosecution of the offense is under the control crime, for the killing of the 11 in 1995?
and direction of the public prosecutor. ATTY. FORTUN:
The contentions of the respondent have no merit. That is my submission, Your Honor.
First. The issue posed by the respondent in the CA and in this Court are the same. To recall, JUSTICE PANGANIBAN:
in Civil Case No. 01-100933,31 the respondent32 sought injunctive relief from the RTC of Manila Let us see your reason for it?
on his claim that in conducting a preliminary investigation in Criminal Cases Nos. 01-101102 ATTY. FORTUN:36
to 01-101112, the petitioners thereby placed him in double jeopardy under Section 7, Rule First, are you saying that double jeopardy applies or not?
117 of the RRCP.33 When the RTC denied his plea for injunctive relief, the respondent filed his JUSTICE PANGANIBAN:37
petition for certiorari in the CA, again invoking his right against double jeopardy, praying Allow me to qualify the effects of double jeopardy occur with permanent dismissal
that: that is my submission.
13. Inasmuch as the case subject of the "preliminary investigation" was dismissed for the ATTY. FORTUN:38
reasons mentioned, there currently exists no complaint upon which a valid investigation No, no, I am not talking of the effects, I am talking of the doctrine, you are not
can be had in light of the clear provisions of Rule 110 which requires the existence of a invoking the doctrine of double jeopardy?
"sworn written statement charging a person with an offense" as basis for the ATTY. FORTUN:
commencement of a preliminary investigation under Rule 112.1awphi1.nét Your Honor, double jeopardy does not apply Section 8, 117 they are (interrupted)
For petitioner, the investigation covers exactly the same offenses over which he had been JUSTICE PANGANIBAN:
duly arraigned and a plea validly entered before the Sandiganbayan (in Criminal Cases That is right.
Nos. 23047 to 57) before its remand to the QC RTC. Hence, to proceed therewith on similar ATTY. FORTUN:
charges will put him in jeopardy of being twice punished therefor (Article III, §21, They are two different claims.
Constitution).34 JUSTICE PANGANIBAN:
The respondent (petitioner therein) contended that the dismissal of Criminal Cases Nos. Q- That is what I am trying to rule out so that we do not have to discuss it.
99-81679 to Q-99-81689 by Judge Agnir, Jr. amounted to a judgment of acquittal; hence, ATTY. FORTUN:
he could no longer be charged and prosecuted anew for the same offense without Very well, Your Honor.
violating his right against double jeopardy. However, the respondent filed a second JUSTICE PANGANIBAN:
amended petition wherein he invoked for the first time Section 8 of Rule 117 of the RRCP: You are not invoking double jeopardy?

76
ATTY. FORTUN: The Constitution which gave life to 8,117.
As I mentioned we are saying that the effects of a permanent dismissal vest the JUSTICE PANGANIBAN:
effects (interrupted) To speedy disposition?
JUSTICE PANGANIBAN: ATTY. FORTUN:
No, I am not talking of the effects, I am asking about the application, you are not Yes, Your Honor.
asking the Court to apply the doctrine of double jeopardy to prevent a JUSTICE PANGANIBAN:
prosecution of Mr. Lacson? Can a Court, let us see your theory then – your theory rest on two provisions: first,
ATTY. FORTUN: the Rules of Court 8,117 and Second, the Constitution on speedy disposition?
Because the element of double jeopardy cannot apply 8, 117. ATTY. FORTUN:
JUSTICE PANGANIBAN: Yes, Your Honor.39
So, the answer is yes? Second. The respondent’s answers to the questions of Madame Justice Josefina
ATTY. FORTUN: Salonga during the hearing in the CA where he admitted, through counsel, that
No, Your Honor, we were saying that precisely a permanent dismissal vests the he gave no express conformity to the dismissal of the cases by Judge Agnir, Jr.,
rights of double jeopardy upon the accused who invokes it. were in relation to Section 8 of Rule 117 and not to Section 7 of Rule 117 on double
JUSTICE PANGANIBAN: jeopardy, thus:
What you are saying is the effects, I am not asking about the effects, I will ask that JUSTICE SALONGA:
later. Do we get it from you that it is your stand that this is applicable to the case at bar?
ATTY. FORTUN: ATTY. FORTUN:
They are two different (interrupted) It is my submission, that it is, Your Honor. In addition, of course, to my proposition
JUSTICE PANGANIBAN: that Mr. Lacson is covered by the rule on double jeopardy as well, because he
Later, I am asking about doctrines. Since you are not invoking the doctrine of had already been arraigned before the Sandiganbayan prior to the case being
double jeopardy you are resting your case win or lose, sink or sail on the remanded to the RTC.
application of 8,117? JUSTICE SALONGA:
ATTY. FORTUN: You are referring to those cases which were dismissed by the RTC of Quezon City.
On the constitutional right of the accused under Section 16 of Article 3 which is ATTY. FORTUN:
speedy disposition of cases which implemented 8,817, that is our arguments in this Yes, Your Honor.
bar. JUSTICE SALONGA:
JUSTICE PANGANIBAN: And it is your stand that the dismissal made by the Court was provisional in nature?
Are you not resting on 8,117? ATTY. FORTUN:
ATTY. FORTUN: It was in that the accused did not ask for it. What they wanted at the onset was
That and the constitutional provision, Your Honor. simply a judicial determination of probable cause for warrants of arrest issued.
JUSTICE PANGANIBAN: Then Judge Agnir, [Jr.] upon the presentation by the parties of their witnesses,
So, you are resting on 8,117? particularly those who had withdrawn their affidavits, made one further conclusion
ATTY. FORTUN: that not only was this case lacking in probable cause for purposes of the issuance
Not exclusive, Your Honor. of an arrest warrant but also it did not justify proceeding to trial.
JUSTICE PANGANIBAN: JUSTICE SALONGA:
And the Constitution? And it is expressly provided under Section 8 that a case shall not be provisionally
ATTY. FORTUN: dismissed except [if] it is with the express conformity of the accused.

77
ATTY. FORTUN: Did you make any alternative prayer in your motion that if there is no probable
That is correct, Your Honor. cause what should the Court do?
JUSTICE SALONGA: ATTY. FORTUN:
And with notice to the offended party. That the arrest warrants only be withheld. That was the only prayer that we
ATTY. FORTUN: asked. In fact, I have a copy of that particular motion, and if I may read my
That is correct, Your Honor. prayer before the Court, it said: "Wherefore, it is respectfully prayed that (1) a
JUSTICE SALONGA: judicial determination of probable cause pursuant to Section 2, Article III of the
Was there an express conformity on the part of the accused? Constitution be conducted, and for this purpose, an order be issued directing the
ATTY. FORTUN: prosecution to present private complainants and their witnesses at the scheduled
There was none, Your Honor. We were not asked to sign any order, or any hearing for that purpose; and (2) the warrants for the arrest of the accused be
statement which would normally be required by the Court on pre-trial or on other withheld, or, if issued, recalled in the meantime until resolution of this incident."
matters, including other provisional dismissal. My very limited practice in criminal JUSTICE GUERRERO:
courts, Your Honor, had taught me that a judge must be very careful on this There is no general prayer for any further relief?
matter of provisional dismissal. In fact, they ask the accused to come forward, and ATTY. FORTUN:
the judge himself or herself explains the implications of a provisional dismissal.40 There is but it simply says other equitable reliefs are prayed for.
The respondent, through counsel, even admitted that despite his plea for JUSTICE GUERRERO:
equitable relief in his motion for a judicial determination of probable cause in the Don’t you surmise Judge Agnir, [Jr.] now a member of this Court, precisely
RTC, he did not agree to a provisional dismissal of the cases. The respondent addressed your prayer for just and equitable relief to dismiss the case because
insisted that the only relief he prayed for before Judge Agnir, Jr. was that warrants what would be the net effect of a situation where there is no warrant of arrest
for his arrest be withheld pending a finding of probable cause. He asserted that being issued without dismissing the case?
the judge did not even require him to agree to a provisional dismissal of the cases: ATTY. FORTUN:
JUSTICE ROSARIO: Yes, Your Honor. I will not second say (sic) yes the Good Justice, but what is plain
You were present during the proceedings? is we did not agree to the provisional dismissal, neither were we asked to sign any
ATTY. FORTUN: assent to the provisional dismissal.
Yes, Your Honor. JUSTICE GUERRERO:
JUSTICE ROSARIO: If you did not agree to the provisional dismissal, did you not file any motion for
You represented the petitioner in this case? reconsideration of the order of Judge Agnir, [Jr.] that the case should be
ATTY. FORTUN: dismissed?
That is correct, Your Honor. And there was nothing of that sort which the good ATTY. FORTUN:
Judge Agnir, [Jr.] who is most knowledgeable in criminal law, had done in respect I did not, Your Honor, because I knew fully well at that time that my client had
of provisional dismissal or the matter of Mr. Lacson agreeing to the provisional already been arraigned, and the arraignment was valid as far as I was
dismissal of the case. concerned. So, the dismissal, Your Honor, by Judge Agnir operated to benefit me,
JUSTICE GUERRERO: and therefore I did not take any further step in addition to rocking the boat or
Now, you filed a motion, the other accused then filed a motion for a judicial clarifying the matter further because it probably could prejudice the interest of my
determination of probable cause? client.
ATTY. FORTUN: JUSTICE GUERRERO:
Yes, Your Honor. Continue.41
JUSTICE GUERRERO:

78
In his memorandum, in lieu of the oral argument filed with the Court of Appeals, the
respondent declared in no uncertain terms that:
Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan
without jurisdiction over the cases. The records were remanded to the QC RTC. Upon raffle,
the case was assigned to Branch 91. Petitioner and the others promptly filed a motion for
judicial determination of probable cause (Annex B). He asked that warrants for his arrest not
be issued. He did not move for the dismissal of the Informations, contrary to respondent
OSG’s claim.42
Section 4, Rule 129 of the Revised Rules of Court reads:
Sec. 4. Judicial admissions. – An admission, verbal or written, made by a party in the course
of the proceedings in the same case, does not require proof. The admission may be
contradicted only by showing that it was made through palpable mistake or that no such
admission was made.
A judicial admission is a formal statement made either by a party or his or her attorney, in
the course of judicial proceeding which removes an admitted fact from the field of
controversy. It is a voluntary concession of fact by a party or a party’s attorney during such
judicial proceedings, including admissions in pleadings made by a party.43 It may occur at
any point during the litigation process. An admission in open court is a judicial admission.44 A
judicial admission binds the client even if made by his counsel.45 As declared by this Court:
... [I]n fact, "judicial admissions are frequently those of counsel or of attorney of record, who
is, for the purpose of the trial, the agent of his client. When such admissions are made ... for
the purpose of dispensing with proof of some fact, ... they bind the client, whether made
during, or even after the trial."46
When the respondent admitted that he did not move for the dismissal of Criminal Cases
Nos. Q-99-81679 to Q-99-81689 in his motion for a judicial determination of probable cause,
and that he did not give his express consent to the provisional dismissal of the said cases, he
in fact admitted that one of the essential requisites of Section 8, Rule 117 was absent.
The respondent’s contention that his admissions made in his pleadings and during the
hearing in the CA cannot be used in the present case as they were made in the course of
a different proceeding does not hold water. It should be borne in mind that the
proceedings before the Court was by way of an appeal under Rule 45 of the Rules of
Court, as amended, from the proceedings in the CA; as such, the present recourse is but a
mere continuation of the proceedings in the appellate court. This is not a new trial, but a
review of proceedings which commenced from the trial court, which later passed through
the CA. The respondent is bound by the judicial admissions he made in the CA, and such
admissions so hold him in the proceedings before this Court. As categorically stated in
Habecker v. Clark Equipment Company:47
79
... [J]udicial admissions on issues of fact, including those made by counsel on behalf of a
client during a trial, are binding "for the purpose of the case ... including appeals."
While it may be true that the trial court may provisionally dismiss a criminal case if it finds no
probable cause, absent the express consent of the accused to such provisional dismissal,
the latter cannot thereafter invoke Section 8 to bar a revival thereof. Neither may the
accused do so simply because the public prosecutor did not object to a motion of the
accused for a judicial determination of probable cause or file a motion for the
reconsideration of the order of dismissal of the case. Even a cursory reading of the
respondent’s motion for a judicial determination of probable cause will show that it
contained no allegation that there was no probable cause for the issuance of a warrant for
the respondent’s arrest as a prayer for the dismissal of the cases. The respondent was only
asking the court to determine whether or not there was probable cause for the issuance of
a warrant for his arrest and in the meantime, to hold in abeyance the issuance of the said
warrant. Case law has it that a prayer for equitable relief is of no avail, unless the petition
states facts which will authorize the court to grant such relief.48 A court cannot set itself in
motion, nor has it power to decide questions except as presented by the parties in their
pleadings. Anything that is resolved or decided beyond them is coram non judice and
void.49
Third. There is no need for the Court to remand the instant case to the trial court to enable
the respondent to adduce post facto evidence that the requisite notices under Section 8
had been complied with by Judge Agnir, Jr. The Court has thoroughly examined the
voluminous records from the Sandiganbayan and the RTC50 and found no proof that the
requisite notices were even served on all the heirs of the victims. The respondent himself
admitted that, as held by this Court, in its May 28, 2002 Resolution, "Judge Agnir, Jr. could
not have complied with the mandate under Section 8 because said rule had yet to exist."51
One final matter. The records show that Criminal Cases Nos. 01-101102 to 01-101112 were
assigned, through the customary raffle of cases, to Branch 81 of the RTC of Quezon City,
the same branch which dismissed Criminal Cases Nos. 99-81679 to 99-81689.52 In the April 1,
2003 Resolution of the Court, the Presiding Judge of Branch 81 of the RTC of Quezon City
was directed to try and decide Criminal Cases Nos. 01-101102 to 01-101112 with reasonable
dispatch. The Court notes, however, that in Administrative Order No. 104-96, it designated
six branches of the RTC of Quezon City53 as special courts, exclusively to try and decide
heinous crimes under Rep. Act No. 7659. Since the accused in the said cases are charged
with murder, which under Rep. Act No. 7659, is classified as a heinous crime, the above
cases should be consolidated and re-raffled by the Executive Judge of the RTC of Quezon
City to a branch thereof designated as a special court, exclusively to try and decide
heinous crimes.
IN LIGHT OF ALL THE FOREGOING, respondent Panfilo M. Lacson’s Omnibus Motion and
Motion to Set for Oral Arguments are DENIED. The respondent’s Motion for Reconsideration
and its Supplement are DENIED WITH FINALITY. The Executive Judge of the Regional Trial
Court of Quezon City is hereby DIRECTED to CONSOLIDATE Criminal Cases Nos. 01-101102 to
01-101112 and to RE-RAFFLE the same with dispatch to one of the branches of the Regional
Trial Court of Quezon City designated as a special court, exclusively to try and decide
heinous crimes.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Panganiban, Quisumbing, Austria-Martinez, Carpio-Morales, and
Azcuna, JJ., concur.
Puno, J., maintains his dissent.
Vitug, J., maintains his dissent and reiterate his opinion on the Court’s resolution of 28 May
2002.
Ynares-Santiago, J., see separate dissenting opinion.
Sandoval-Gutierrez, J., see dissenting opinion.
Carpio, J., no part.
Corona, J., on leave.
Tinga, J., no part.
27 SEC. 8. Designation of the offense. – The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made
to the section or subsection of the statute punishing it.
28 U.S. v. Panczko, 367 F. 2d. 737 (1966).
29 In its April 29, 2003 Resolution, the respondent’s allusion of loud whispers caused
by a suspicion that this Court or any member of this Court had been manipulated
by politics in this government was rejected by the Court, thus:
"The respondent’s allusion of loud whispers caused by a suspicion that
this Court or any member of the Court had been manipulated by politics
in this government when it resolved to set aside its 28 May 2002
Resolution is downright irresponsible. Not too long ago, a distinguished
member of the Court said:
Those who wear the black robes are enrolled in a noble mission; become
different persons; forfeit their past activities, friends and even relatives;
80
and devote full time, attention and effort to the rather reclusive and
exclusive world of decision-making….
Quoting Rufus Choate, in part, a judge or justice in administering justice
"shall know nothing about the parties, everything about the case. He
shall do everything for justice; nothing for himself; nothing for his friend;
nothing for his patron; nothing for his sovereign." All members of the
Court acted on and resolved petitioners’ motion for reconsideration as
well as respondent’s motion to recuse Justice Callejo, Sr. in light of their
respective study of the records and the relevant laws and rules after due
deliberation…. (Rollo, Vol. III, p. 1499).
30 Lassite v. Department of Social Services, 68 L.Ed.2d. 640 (1981).
31 Entitled and docketed as Lacson v. Department of Justice, Civil Case No. 01-
100933 for prohibition with a prayer for a temporary restraining order. (CA Rollo, p.
29).
32 There were 27 accused in Criminal Cases Nos. Q-99-81679 to Q-99-81689. Except
for Inspector Manuel Alvarez, the said accused were also charged in Criminal
Cases Nos. 01-101102 to 01-101112. Only the respondent filed his petition in said
case.
33 SEC. 7. Former conviction or acquittal; double jeopardy. – When an accused
has been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction, upon
a valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any attempt
to commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former complaint
or information.
However, the conviction of the accused shall not be a bar to another
prosecution for an offense which necessarily includes the offense
charged in the former complaint or information under any of the
following instances:
(a) the greater offense developed due to supervening facts
arising from the same act or omission constituting the former
charge;
(b) the facts constituting the graver charge became known or
were discovered only after a plea was entered in the former
complaint or information; or
 (c) the plea of guilty to the lesser offense was made without the
consent of the prosecutor and of the offended party except as
provided in Section 1(f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in
whole or in part the judgment, he shall be credited with
DISSENTING OPINION
YNARES-SANTIAGO, J.:
This is to reiterate my dissent to the unbelievable about-face by the Court in the April 1,
2003 Resolution confirmed and renewed in its latest Resolution.
The reasons for this continuing dissent are basically similar to those expressed in three
Dissenting Opinions to the April 1, 2003 Resolution.1 Nothing has changed in the history of
the charges against Senator Panfilo M. Lacson except the disturbing and unusual ruling of
this Court now.
If the charges against Senator Lacson are to be relentlessly pursued, the pursuit must be
done in a constitutional and fair manner. It is the use of legal short-cuts, pained reasoning
and the hasty procedure after several years of inaction which constrain this dissent. If
Senator Lacson is to be found guilty of participation in multiple murder, it should be only
after due process is followed.
The new majority Resolution is a volte-face, a complete turn-around from the previously
unanimous judgment dated May 28, 2002.
The 2002 Resolution of the Court remanded the Government’s petition to the Regional Trial
Court of Quezon City to ascertain important factual issues. The Resolution was concluded
beyond doubt or ambiguity without any dissenting vote.
The issues sought to be revived were all resolved two years ago. What the Court
unanimously retired should be allowed to rest. Instead, the Court now wants to allow the
use of the strong arm of the law to oppressively prosecute and persecute.1a\^/phi1.net
If the petitioners can show strong compelling reasons, newly discovered, or some deeply
held convictions based on a genuine sense of justice or irresistible considerations of equity, I
could concur to ignore established procedure.
Unfortunately, all I can discern here is allowing the use of the strong arm of the law to
oppressively prosecute a public officer whom the powers-that-be detest and whom they
seek to render completely ineffective.2
In the April 1, 2003 Resolution, I concurred with Mme. Justice Angelina Sandoval-Gutierrez
who, like me, started her long judicial career as a municipal trial judge and, later, judge of
a regional trial court. I agreed with the conclusion that the petitioner’s right to speedy trial
and speedy disposition of cases were violated and the filing of new informations constitute
persecution. I concurred that in the prosecution of an accused he must not be perceived
81
as an intractable enemy, and that the over-eagerness to prosecute respondent is a clear
example of persecution.
There is nothing in the pleadings after our dissent to the April 1, 2003 Resolution or in the
discussions of the respondent’s motion for reconsideration that shows our May 28, 2002
Resolution was wrong or that the Court was correcting an injustice when it suddenly
reversed itself.
Respondent stresses the need for compliance with the rule of law, the primacy of the
Constitution over acts of State, and the independence of the judiciary. When respondent
urges the Court to remember that it is not a trier of facts, he raises a fundamental threshold
question. It involves the application of what has been described as an immutable principle
of justice,3 the essence of ordered liberty,4 so rooted in the traditions and conscience of our
people as to be ranked as fundamental,5 a canon of civilized decency,6 a guarantee
against the oppressions and usurpations of royal prerogatives,7 and a responsiveness to the
supremacy of reason and obedience to the dictates of justice.8 He is asking for due
process.
Under the Constitution, this Court resolves "cases in which only an error or question of law is
involved."9 It is therefore not a trier of facts.
The Court itself in the April 1, 2003 Resolution summarized the facts to be resolved:
1. Whether the provisional dismissal of the cases had the express consent of the
accused;
2. Whether it was ordered by the court after notice to the offended party;
3. Whether the two-year period to revive it has already lapsed;
4. Whether there is any justification for the filing of the cases beyond the two year
period;
5. Whether notices to the offended parties were given before the cases were
dismissed by then Judge Agnir;
6. Whether there were affidavits of desistance executed by the relatives of the
three other victims; and
7. Whether the multiple murder cases against respondent are being revived within
or beyond the two-year bar.10
The facts to be resolved requires submission of evidence. They are material facts because
proof of their actuality is needed to enable the Court to render judgment on the basic
issues raised. Evidence to prove the facts in issue have to be introduced in accordance
with the principles of substantive law and the rules of pleading, practice and procedure.
The facts are in dispute because one party alleges their existence while the other denies
them, both with some show of reason.11 If the unanimous judgment in 2002 is to be reversed
by a new majority, a remand to ascertain these facts outlined is imperative.
Facts have to be established by evidence, not by inferences, not by suppositions, and
certainly not by the augury of divination. Yet, the majority precisely proceeded to do it that
way.
If the facts material to the Court’s judgment were found by the new majority from the
records, how could the unanimous Court have missed so many of these significant facts in
2002?
If doubts are to be resolved and suppositions and fallacies avoided, every method of
getting the truth through adversarial proceedings before a trial court must be explored. Let
the Regional Trial Court which is a trier of facts do the job.
If, for instance, the Court suddenly discovers that there has been no trial, not even a pre-
trial in the almost two decades a case has been pending; if the questions raised are
complicated, complex and tricky; if there is no evidence in the records, no transcripts of
stenographic notes and no exhibits; the Court would have to refer the factual issues to a
trial court. It should not arrive at a summary judgment based on the pleadings before it. This
is what the new majority has done.
A key factual issue is the applicability to the cases against respondent of the rule on
provisional dismissal found in the Revised Rules of Criminal Procedure. Section 8 of Rule 117
thereof provides:
Provisional Dismissal – A case shall not be provisionally dismissed except with the express
consent of the accused and with notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years
or a fine of any amount, or both, shall become permanent one (1) year after the issuance
of the order without the case having been reviewed. With respect to offenses punishable
by imprisonment of more than six (6) years, their provisional dismissal shall become
permanent two (2) years after issuance of the order without the case having been revised.
The determination of whether or not the above rule applies in this case entails factual
issues. Has the two-year period expired? Was the dismissal of the cases with the express
consent of the accused? Was there notice to the offended party? By their very nature,
these questions justify a remand to the trial court.
The new majority first tackles the application of the two-year time bar in Rule 117 to this
case. The criminal cases were dismissed by then Judge Wenceslao Agnir, Jr. on March 29,
1999. The Revised Rules of Criminal Procedure took effect the following year on December
1, 2000. If the new rule is not applied retroactively, would the old rule, where there was no
time bar, apply?
The new majority rules that the time bar should apply only prospectively. I find this decision
disturbing if it is indicative of a novel approach to individual liberties.1a\^/phi1.net The Bill
of Rights is a statement of the liberties of individuals protected against exertions of
82
government power. The ponencia seeks to protect the "rights" of the State against its
citizens and invokes the Bill of Rights in the process.
The Bill of Rights refers to fundamental individual rights and the guaranteed protection is
against Government or any of its officials. It cannot be invoked against actions of private
parties unless private action is backed by government power.
Government exercises powers not rights. When the Constitution provides that "no person
shall be deprived of life, liberty, or property without due process of law,"13 the "person"
referred to is not the State. When we mention in our decisions that the State also deserves
due process, it is merely a quaint way of saying that the law and the rules should be
followed if intended to protect State interests. But never should the rights of a citizen be
weighed against the non-existent rights of the State which should be recognized and
denominated as the powers of the State.
There is sometimes a balancing of individual rights against State power where public
interest is involved. The individual is always at a terrific disadvantage when a basic right is
weighed against the awesome powers of a State. There is no need for balancing in this
case.
If the issue involved is protection of a citizen against overzealous criminal prosecutions, the
reason for ruling against him should never be due process rights of the State. The Dissenting
Opinion of Mr. Justice Reynato S. Puno in the April 1, 2003, with which I also concurred,
discusses the origin of the amended rule, its nuances and reasons for being, and the
inflexibility of the permanent time bar once the two-year period is reached. The Rule is
intended to protect the rights of the accused, not to make it easier for the Government to
prosecute him. Here, the Court wants us to allow the use of a protection for the citizen
against that citizen. Its enactment becomes counter-productive. The extensive and learned
discussion of the Honorable Chairman of the Committee on the Revision of the Rules of
Court is glossed over. It should be re-read.
The amended rule is intended to prod the Government into a more faithful and
accountable performance of duty, to avoid the tyrannical Damocles’ sword hanging
indefinitely over a person whom the Government wants to coerce into indeterminate
submission, and to stop the malaise of public officers who are shiftless and lethargic and
who are prodded into action only after the passage of interminable time or when revenge
or a desire to vex and oppress suddenly surfaces.
If the rule is a just rule, if its objectives are salutary and if its enforcement will mean an
enlargement of individual rights, why should a recent accused enjoy it to the exclusion of
those with pending cases when it was enacted? Justice should be for everyone especially
those accused where prosecution and trial have dragged for years and years. A rule
should not protect the incompetence or lethargy of Government prosecutors.
I submit that the new rule should be made retroactive. This interpretation is in line with
simple justice. The statement of the majority that the due process protections of the State
and those of the individual should be equal is dangerous for a Supreme Court to utter.
With all due respect, the justifications in the ponencia display an insensitivity to individual
liberties. The spirited defense of the powers of the State in the context of individual
freedoms is bewildering to say the least. It is hoped that such a cavalier approach to the Bill
of Rights is a passing aberration and that the Court will again stand firmly as the
constitutional bulwark against State power and oppression. The Court should not remain
silent and, more important, should take a firm stand when a citizen is harassed and
persecuted by the formidable powers of Government.
The statement that the ruling of the Court in 2003 and any ruling today would be the same,
regardless of who the parties involved are, whether a Senator, presidentiable, or an
ordinary citizen is, in the light of our judgment in this case, is not believable.
The bedrock issue underlying all aspects of the about-face decision sought to be
reconsidered involves the correct approach to the Bill of Rights. If the interpretation of the
amended rule shows a back-sliding of the Court’s traditional approach to individual liberty,
that interpretation must be avoided. The history of the due process clause goes back to the
beginning of the era of enlightenment. It traces the step-by-step wresting of rights from
absolution and monarchy. There is no monarchy today but claims of authority against
liberty are vested in State power. The ponencia unwittingly dilutes a guarantee of liberty
against a misinterpretation of State power.
In the resolution of whether the rule should be applied retroactively, we must divorce the
issue from the various personalities involved, and focus simply on the principles of
interpretation that have governed this Court since its inception.
The ponencia declares that there is no express requirement for the revised rule to be given
retroactive application. It states that under Rule 144 of the Rules of Court, the Rules shall not
be applied "to actions pending before it if in its opinion their application would not be
feasible or would work injustice, in which event, the former procedure shall apply."12
144, for ready reference, provides:
These rules shall take effect on January 1, 1964. They shall govern all cases
brought after they take effect, and also all further proceedings in cases then pending,
except to the extent that in the opinion of the court their application would not be feasible
or would work injustice, in which event the former procedure would apply. (underscoring
supplied.)
In the same breath, the ponencia expresses that "[s]tatutes regulating the procedure of the
courts will be construed as applicable to actions pending and undetermined at the time of
their passage. In that sense and to that extent, procedural laws are retroactive."13 Criminal
Cases Nos. Q-99-81679 to Q-99-81689 are then characterized as having been long
dismissed before the new rule took effect on December 1, 2000. The ponencia goes on to
state that:
[w]hen the petitioners filed the Informations in Criminal Cases Nos. 01-101102 to 01-101112
on June 6, 2001, Criminal Cases Nos. Q-99-81679 to Q-99-81689 had long since been
terminated. The two-year bar in the new rule should not be reckoned from the March 29,
1999 dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 but from December 1, 2000
when the new rule took effect. While it is true that the Court applied Section 8 of Rule 110 of
the RRCP retroactively, it did so only to cases still pending with this Court and not to cases
already terminated with finality. (Citations omitted, underscoring supplied.)14
There is a fundamental inconsistency in the foregoing statements. If one were to apply Rule
144, as the ponencia has done, this would mean characterizing Criminal Cases Nos. Q-99-
81679 to Q-99-81689 as being pending proceedings as of the effective date of the Revised
Rules of Criminal Procedure, since this is what a plain reading of Rule 144 would require. This
would go completely against the statement of the same ponencia that characterizes
Criminal Cases Nos. Q-99-81679 to Q-99-81689 as having long since been terminated when
the petitioner filed the Informations in Criminal Cases Nos. 01-101102 to 01-101112. Were the
proceedings pending as of the effective date of the Revised Rules, or had they already
been terminated? It is not pure legal quibbling to demand a consistent characterization of
Criminal Cases Nos. Q-99-81679 to Q-99-81689. One cannot characterize these cases as
pending, invoke their pendency as basis for the non-retroactive application of Rule 117,
Section 8, and then characterize them as having been terminated in order to similarly deny
the retroactive application of the new procedural rules. The ponencia’s bases for the non-
retroactive application of the revised rule are completely impossible to reconcile.
Regardless of the characterization of Criminal Cases Nos. Q-99-81679 to Q-99-81689, I
submit that Rule 117, Section 8 should be given retroactive application, consistent with the
principles of statutory construction of procedural rules.
Procedural laws, by definition, prescribe rules and forms of procedure of enforcing rights or
Rule obtaining redress. They include rules of pleadings, practice and evidence. As applied to
criminal law, procedural law – as distinguished from substantive law – is that which provides
or regulates the steps by which one who commits a crime is to be punished.15
In interpreting procedural rules, this Court, in the 1927 case of Hosana v. Diomano and
Diomano,16 laid down the rule that procedural rules will be construed as applicable to
causes of action accrued, and actions pending and undetermined, at the time of their
passage, unless: (1) such actions are expressly excepted; or (2) vested rights would be
disturbed by giving them a retroactive application.17
The causes of action in Criminal Cases Nos. 01-101102 to 01-101112 – in which the
Informations allege essentially the same operative facts as those alleged in Criminal Cases
Nos. Q-99-81679 to Q-99-81689, with the primary difference that respondent is charged as a
83
principal and no longer as an accessory – had undoubtedly already accrued as of
December 1, 2000, the effective date of the Revised Rules of Criminal Procedure. Thus,
whether the criminal actions in question were "pending", or the causes of action had
merely "accrued", the retroactive application of the RRCP is called for.
Undoubtedly, there is no express exception to the retroactive application of Rule 117,
Section 8. Thus, unless vested rights are disturbed, its retroactive application is clearly
mandated.
On this point, it has been held that the retroactive application of procedural laws is not
violative of any right of a person who may feel that he is adversely affected.18 This is
because of the fundamental principle that, as a general rule, no vested right may attach
to nor arise from procedural laws. This is a principle that we have enunciated in a long line
of cases.19 A person has no vested right in any rule of law which entitles him to insist that it
shall remain unchanged for his benefit.20
The ponencia seems to hold that vested rights would indeed be disturbed if Rule 117,
Section 8 were given retroactive application. Specifically, this argument focuses on the
State’s right to due process, which purportedly would be violated by the retroactive
application of the questioned procedural rule. Thus, the ponencia asserts that:
when the Court approved Section 8, it intended the new rule to be applied prospectively
and not retroactively, for if the intention of the Court were otherwise, it would defeat the
very purpose for which it was intended, namely, to give the State a period of two years
from notice of the provisional dismissal of criminal cases with the express consent of the
accused. It would be a denial of the State’s right to due process and a travesty of justice
for the Court to apply the new rule retroactively in the present case as respondent insists,
considering that the criminal cases were provisionally dismissed by Judge Agnir, Jr. on
March 19, 1999 before the new rule took effect on December 1, 2000. A retroactive
application of the time-bar will result in absurd, unjust and oppressive consequences to the
State and to the victims of crimes and their heirs.
xxxxxxxxx
The State would thus be sanctioned for its failure to comply with a rule yet to be approved
by the Court. It must be stressed that the institution and prosecution of criminal cases are
governed by existing rules and not by rules yet to exist. It would be the apex of injustice to
hold that Section 8 had a platonic or ideal existence before it was approved by the Court.
The past cannot be erased by a capricious retroactive application of the new rule.21
In making these assertions, the ponencia has undoubtedly placed a premium on the
State’s right to procedural due process.
The State’s right to due process must be viewed from proper perspectives. It cannot be said
that such right would be violated by a retroactive application of Rule 117, Section 8. It
appears clear that the invocation of due process is an attempt to cloak a flawed
84
argument using a Constitutional precept. As earlier intimated, the ponencia is unable to
pinpoint with specificity exactly how the "due process right" of the State had already vested
as of the passage of the Revised Rules, and how this "vested right" could be violated by the
retroactive application of Rule 117, Section 8.
Stripped to its basics, procedural due process is a matter of nothing more or less than
procedural fairness. There would be nothing procedurally unfair about giving a retroactive
application to Rule 117, Section 8. Precisely, this Court is specifically empowered by the
Constitution to promulgate such rules of procedure, and, in the past, we have had no
qualms about applying such rules of procedure retroactively, ruling firmly that no vested
rights are impaired even if the effect of the retroactive application of such rules would be
to divest a court or tribunal of its jurisdiction. In such instances, we have advised the party-
litigants that their rights have not been impaired.22
There is no cogent reason to depart from this principle even if, in this case, the People is one
of the party-litigants. Departing from the fundamental principle in this case seems to be an
instance of selective statutory construction to achieve the desire to attain a particular
result.
If anything, the fact that the People is one of the party-litigants should call for a more
vigilant application of the Rules strictly against the People or the State and liberally in favor
of the private individuals who might be benefited by the retroactive application of the
procedural rule.
Although it is true that the prosecutors would have no inkling, as of the provisional dismissal
of the case on March 29, 1999, that the Revised Rules of Criminal Procedure would contain
Rule 117, Section 8, they undoubtedly had notice as of the effective date thereof on
December 1, 2000. From that date, they had almost four months in which to revive Criminal
Cases Nos. Q-99-81679 to Q-99-81689, had there been a need to do so. In cases involving
purely private litigants, we have not hesitated in dismissing cases when a party or parties
have not been vigilant in protecting their rights.23 At the risk of being repetitive, there is no
reason to depart from this principle simply because the State is a litigant.
Moreover, it is an established principle of statutory construction that penal laws are strictly
construed against the State and liberally in favor of the accused.24 Any reasonable doubt
must be resolved in favor of the accused.25
By way of example, we have not hesitated in the retroactive application of such laws as
Republic Act No. 7659, which lowered the penalties for certain crimes, insofar as the lower
penalty was favorable to the accused. In the cases of People v. Simon,26 People v.
Manalo,27Danao v. Court of Appeals,28 and People v. Piasidad,29 judgment had already
been rendered by the respective trial courts against the respective accused individuals in
question. Pending appeal of the cases, the legislature passed R.A. 7659, effective
December 31, 1993. In addition to re-imposing the death penalty, R.A. 7659 lowered the
penalty imposable on individuals who had violated the Dangerous Drugs Act. This Court
invariably applied the lower penalty retroactively, even if the crimes had been
consummated, prosecution had been initiated, and a decision had in fact already been
rendered by the trial courts while the higher penalties were still imposable.
As a more extreme example, in the 1996 case of Cruz v. Correctional Institution for Women
in Mandaluyong,30 the accused therein was already serving a final and executory penalty
of reclusion perpetua. During her service of this sentence, R.A. 7659 was passed, lowering
the penalty imposable for the crime for which she was convicted. Even if her sentence was
already being served, this Court retroactively applied R.A. 7659 and ordered her immediate
release since she had already served the maximum of her sentence.1a\^/phi1.net
From a particular perspective, granting the retroactive application of penal laws would
likewise impair the "vested" rights of the State in seeing to it that criminals are given just
retribution. In such instances, though, we have not hesitated in putting a primacy on the
rights of the private individuals. The retroactive application of Rule 117, Section 8 is thus
called for.
We move on to another factual issue to illustrate that, if we have to change our minds –
and I repeat that our Resolution dated May 28, 2002 correctly resolved the issue – the Court
should get the factual answers through a remand.
Did the accused give express consent to the provisional dismissal of his case?
The Court in its first Resolution stated that "(i)t was respondent Lacson himself who moved to
dismiss the subject cases for lack of probable cause before then, Judge Agnir, hence, it is
beyond argument that their dismissal bears his express consent."
Now, the majority finds the motion to dismiss as an inadequate mode of expressing
consent. Obviously, the Court wants a formal manifestation filed in court where an accused
has to declare, "I hereby consent to the provisional dismissal of my case."
The majority is asking too much. The amended Rule does not provide for a rigidly precise
wording of consent. There are no required magic words whose non-utterance would be
fatal. There are no fixed and supererogatory incantations, no pigeon-holes of ritual where
set formalities must be fitted. When an accused moves that his case be dismissed, that is a
stronger mode of consent than merely saying, "I hereby consent." When the respondent's
counsel answered "none" to the question, "was there an express conformity?", he was
referring to a formal manifestation of "yes, your Honor, the accused consents." There was no
such pleading or manifestation. However, the lawyer's so-called "admission," taken out of
context, cannot overrule the indubitable fact that the accused moved for a dismissal of his
case. An implied admission of counsel cannot be given greater weight than a consent
given through a formal motion to dismiss.
85
As Mr. Justice Cardozo said long ago: "The law has outgrown its primitive stage of formalism
when the precise word was the sovereign talisman, and every slip was fatal. It takes a
broader view today."31
The majority is abetting harassment and oppression when it rules that a motion to dismiss is
not a consent to dismissal. I have to dissent on this issue.
Was there notice to the offended party?
This is another factual issue that is best determined at the trial level. It calls for evidence.
The ponencia again relies on an ambiguous admission of counsel in the course of tricky
cross-examination that there was no formal notice.
It is probable that there was no formal notice in the form of a letter with a registry return
card accomplished by the recipient. The purpose of notice under the Rule is to let the
offended party know and to avoid complicity to prejudice the offended party. If the
offended party was informed and had knowledge of the forthcoming provisional dismissal,
there was notice to him.
The matter of notice should be elicited from the offended party during trial. If
the ponencia refuses to treat a notice to the lawyer as a notice to his client, it should, at
least, ask the client himself to affirm or deny that he was informed about the provisional
dismissal. The remand is called for in this regard. If a lawyer is given notice on a material
issue, he is assumed to have passed on the notice to his client. The rule that notice to a
lawyer is notice to the client should apply when the basic protection of the accused is
involved and the protection is part of the package of rights of an accused. There may be
instances in civil law or mercantile law where a formal notice, duly acknowledged by the
addressee, is required. In criminal law, any statute or rule intended to protect the rights of
an accused should be interpreted in his favor.
There is no question that the amended rule on provisional dismissal of criminal cases is
intended to protect the rights of an accused. The majority overlooks the fact that if the rule
was supposed to help or favor the State, there would have been no reason to introduce
the amendment. The rule should have been left the way it was. The rule was intended to
curb inaction and abuses by government prosecutors.
In deciding cases of constitutional significance, the Court should be more concerned with
substance rather than form32 or some other consideration, with general principles than
technical points, to support judgments.
In one eloquent dissent of Mr. Justice Hugo Black of the United States Supreme Court, he
stated that not the least of the virtues of a provision of the Bill of Rights is the protection
given to each member of the smallest and most unorthodox minority.33 Respondent in the
present case may not belong to the smallest minority but he is clearly unorthodox and a
member of the minority political party. We must avoid not only any political color in our
work but also the appearance of political color.
Appearances are unfortunately important in our functions and somehow, the public image
of the Court will suffer because of the way the Court has decided the motion for
reconsideration of the respondent who has become the target of powerful personalities in
the political arena. Equating the awesome powers of the State with individual freedoms
and formally extending the protections of the Bill of Rights to the State is not a healthy
development. The Court should not give the impression that Bill of Rights protections such as
due process should equally extend to and protect the State in the same way that they
protect individual persons. Again, this is not only error; it is also not healthy for the
development of the law of the Constitution.
At any rate it is well to listen to Mr. Justice Black when he says that laws aimed at one
political group and I may add, at one political personage, however rational these laws
may be in their beginning, generate hatred and prejudices which rapidly spread beyond
control. Too often it is fear which inspires such functions and nothing is more reckless or
contagious.
In the present case, the concern involves not a law enacted by Congress but a judgment
rendered by the Supreme Court. The importance of these kinds of decisions on national
institutions and the development of law cannot be ignored or denied.
WHEREFORE, I dissent from the majority resolution. I vote to grant the respondent’s Motion for
Reconsideration and to reinstate the Court’s Resolution dated May 28, 2002.
DISSENTING OPINION
SANDOVAL-GUTIERREZ, J.:
"A new law is always enacted in the persuasion that it is better than the former one. Its
efficacy, therefore, must be extended as far as possible, in order to communicate the
expected improvement in the widest sphere."1
On April 1, 2003, I stood apart from the rest of my brethren in granting petitioners’ Motion for
Reconsideration of this Court’s Resolution dated May 28, 2002.2 So engrossed was the Court
then in determining the applicability of Section 8, Rule 117 of the 2000 Revised Rules of
Criminal Procedure to respondent’s case that it seems to overlook the more fundamental
concept of speedy trial and speedy disposition of cases – the very foundation of
respondent’s right to be permanently discharged of the criminal cases filed against him.
My first dissent rests mainly on the premise that the circumstances surrounding respondent’s
case, i.e. the dismissal of Criminal Cases No. Q-99-81679 to 89 and their refiling two years
after, effectively elicit a speedy trial analysis or inquiry.3 The time interval between the
dismissal of the initial charges and the subsequent refiling thereof had crossed the threshold
dividing ordinary from "presumptively prejudicial" delay, thus, before anything else,
respondent’s predicament should be weighed on the basis of the Constitutional provisions
86
on speedy trial and speedy disposition of cases. Section 8, Rule 117 must come second
only.
At this juncture, it bears reiterating that statutes (and with more reason, rules) cannot be
effective to place any limitation on the constitutional right,4 and therefore they should not
be regarded as "definitions" of the constitutional provision, but merely as implementing
statutes passed pursuant to it.5 It is thus conceivable that the constitutional provision may
be violated although an implementing statute is not.6 With this Court’s fixation on Section 8,
Rule 117, it in effect missed the bigger picture. Respondent’s repeated invocation of his
constitutional right to speedy trial and speedy disposition of cases was drowned by
arguments on the applicability of the rule only implementing such right. Contrary to the
express provision of Section 10, Rule 119 of the same Rules that "no provision of law on
speedy trial and no rule implementing the same shall be interpreted as a bar to any charge
of denial of the right to speedy trial guaranteed by section 14 (2), Article III of the 1987
Constitution," Section 8, Rule 117 effectively operates as a bar to respondent’s bid for a
speedy trial analysis or inquiry. This is very unfortunate.
Having fully articulated in my first dissent the primordial reason why I cannot join the
majority, I am taking this second occasion to expound on the nagging issue of whether
Section 8, Rule 117 applies to respondent’s case.
In denying respondent’s present Motion for Reconsideration, the majority ruled that: (a)
Section 8, Rule 117 cannot be applied retroactively to respondent’s case for to do so would
result in "absurd, unjust and oppressive consequences to the State and the victims of crimes
and their heirs;" and (b) respondent failed to comply with the essential pre-requisites of
Section 8, Rule 117 particularly that of accused’s "express consent" to the provisional
dismissal.
I dissent.
I – Section 8, Rule 117 should be applied retroactively
Settled in our jurisprudence is the principle that when a new law will be advantageous to
the accused, the same shall be given retroactive effect.7 Favorabiliab sunt amplianda,
adiosa restrigenda. (Penal laws that are favorable to the accused are given retroactive
effect).8 For a long period, this has been the settled doctrine in countries whose criminal
laws are based on the Latin system. Article 22 of our Revised Penal Code reads:
"Art. 22. Retroactive effect of penal laws. – Penal laws shall have retroactive effect insofar
as they favor the person guilty of a felony, who is not a habitual criminal, as this term is
defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such
laws a final sentence has been pronounced and the convict is serving the same."
This article is of Spanish origin and is based on Latin principles, thus, in the interpretation
thereof, this Court must have recourse to Spanish or Latin jurisprudence.9 That the term
"penal laws" or "leyes penales" as employed in Article 22, relates not only to laws prescribing
penalties but also to limitations upon the bringing of penal actions, was pronounced in the
early case of People vs. Parel.10 Thus, to justify the retroactive application of Section 8, Rule
117 on the basis of Article 22 is in order. Considering its genesis and its underlying principles,
there is no doubt that whenever a new statute dealing with crimes establishes conditions
more lenient or favorable to the accused, the statute becomes retroactive and the
accused must receive the benefits of the new condition. As long as this provision so remains
in force, it is of general application to all penal statutes, past, present, future and furnishes
the rule for determining to what extent they are retroactive or merely prospective. And
unless a penal or criminal statute, expressly or by necessary implication, provides that it shall
not be regarded as retroactive, it becomes subject to the rule laid down by that
article.11 Evidently, by ruling against the retroactive application of Section 8, Rule 117, the
majority casts aside one of most basic principles in our legal system.
Now, in an attempt to justify its position, the majority resorted to the alleged statutory
purpose of Section 8, Rule 117. It argues that "when the Court approved Section 8, it
intended the new rule to be applied prospectively and not retroactively, for if the intention
of the Court were otherwise, it would defeat the very purpose for which it was intended,
namely, to give the State a period of two years from notice of the provisional dismissal of
criminal cases with the express consent of the accused." I believe the purpose cited is
inaccurate. Section 8, Rule 117 was introduced owing to the many instances where police
agencies have refused to issue clearances, for purposes of employment or travel abroad,
to persons having pending cases, on the ground that the dismissal of such cases by the
court was merely provisional, notwithstanding the fact that such provisional dismissal, more
often than not, had been done five or ten years ago.12 Obviously, Section 8, Rule 117 was
introduced not so much for the interest of the State but precisely for the protection of the
accused against protracted prosecution. This Court’s Committee on Revision of the Rules of
Court clearly saw the prejudice to the rights of the accused caused by a suspended
provisional dismissal of his case. Hence, if we are to follow the majority’s line of reasoning
that Section 8, Rule 117 "must be read according to its spirit or intent," then the logical
conclusion is the retroactive application of the rule. Certainly, it is the construction that will
advance the object and secure the benefits intended.
The Court, in setting a limit to the State’s right to re-prosecute, has recognized the injustice
and the evil accompanying suspended provisional dismissals. It has impliedly
acknowledged that the situation sought to be remedied is unjust and undesirable. Now, is it
not inconsistent for this Court to suspend the application of the new rule to respondent’s
case just because the rule was passed after the provisional dismissal of his cases? Note that
the situation sought to be remedied is present in respondent’s case. To my mind, if this Court
will refuse to extend the benefit of the new rule to respondent, it will be guilty of an
87
inconsistency in view of its implied admission that the situation sought to be remedied has
caused injustice to respondent.
In several cases, we applied the provisions of the 2000 Rules of Criminal Procedure
retroactively.13 The same should be done with Section 8, Rule 117 considering that it is
merely a reinforcement of the constitutional right to speedy trial and speedy disposition of
cases. With or without it, petitioners are duty bound under the Constitution to proceed with
speed in prosecuting respondent’s cases. Consequently, all the time prior to the
promulgation of Section 8, Rule 117, petitioners were not precluded from re-filing the cases
against respondent. It may be recalled that Criminal Cases Nos. Q-99-81679 to 89 were
dismissed on March 29, 1999.14 The Department of Justice (DOJ) re-investigated the cases
only upon its receipt on March 29, 2001 of General Leandro Mendoza’s letter indorsing the
affidavits of P/S Ins. Abelardo Ramos and P/ Ins. Ysmael Yu. On June 6, 2001, new
Informations were filed against respondent. Clearly, from March 29, 1999 to March 29, 2001,
petitioners had the opportunity to refile the new Informations against respondent. That they
failed to do so, even after acquiring knowledge of the rule on December 1, 2000 and
onwards, only speaks of official negligence and lethargy. It cannot therefore be argued
that the State’s right to prosecute within the two-year period has been reduced and would
cause injustice to it and the offended parties. If at all, what was reduced was the State’s
lackadaisical attitude borne by this nation’s years of tolerance and
indifference.1awphi1.nét
Surely, I cannot countenance "official indolence" by holding that if only the State had
known it would lose its right to prosecute after the lapse of the two-year period, it would
have immediately refiled the new Informations against respondent. To hold so is to
advance the view that the State’s duty to prosecute promptly depends on the threat of a
punitive rule and not on the mandate of the Constitution.
Corollarily, while there is truth to the statement that in determining the retroactivity of
legislation, elementary considerations of fairness dictate that individuals should have an
opportunity to know what the law is and to conform their conduct accordingly; settled
expectations should not be lightly disrupted. However, legislations readjusting rights and
burdens cannot be adjudged unlawful simply because it upsets settled expectations, even
if it imposes a new duty or liability based on past acts.15 That the State settled expectation,
i.e. its entitlement to the two-year period, was to be disrupted by a retroactive application
of Section 8, Rule 117 does not necessarily result to injustice. Section 8, Rule 117, by limiting
the state’s right to re-prosecute, partakes of the nature of a statute of limitations which is
really "an act of grace or amnesty " that must be liberally applied in favor of the accused.
Wharton, in his work on Criminal Pleading and Practice, 9th ed., says in section 316:
"We should at first observe that a mistake is sometimes made in applying to statutes of
limitation in criminal suits the construction that has been given to statutes of limitation in civil
suits. The two classes of statutes, however, are essentially different. In civil suits the statute is
interposed by the legislature as an impartial arbiter between two contending parties. In the
construction of the statute, therefore, there is no intendment to be made in favor of either
party. Neither grants the right to the other, there is therefore no grantor against whom the
ordinary presumptions of construction are to be made. But it is otherwise when a statute of
limitation is granted by the State. Here the State is the grantor, surrendering by act of grace
its rights to prosecute, and declaring the offense to be no longer the subject of prosecution.
The statute is not a statute of process, to be scantily or grudgingly applied, but an amnesty,
declaring that after a certain time oblivion shall be cast over the offense; that the offender
shall be at liberty to return to his country, and resume his immunities as a citizen; and that
from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his
guilt are blotted out. Hence, statutes of limitations are to be liberally construed in favor of
the defendant, not only because such liberality of construction belongs to all acts of
amnesty and grace, but because the very existence of the statute is a recognition and
notification by the legislature of the fact that time, while it gradually wears out proofs of
innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt.
Independently of these views, it must be remembered that delay in instituting prosecutions
is not only productive of expense to the State, but of peril to public justice in the
attenuation and distortion, even by mere natural lapse of memory, of testimony. It is the
policy of the law that prosecutions should be prompt, and that statutes enforcing such
promptitude should be vigorously maintained. They are not merely acts of grace, but
checks imposed by the State upon itself, to exact vigilant activity from its subalterns, and to
secure for criminal trials the best evidence that can be obtained."
The necessity, therefore, of applying the favorable new rule to respondent rests upon the
principle that the sovereign power cannot exercise its right to punish except only within
those limits of justice which that sovereign power has established as being just and
equitable at the time of exercising that right. Significantly, it has been held that the
constitutional provision barring the passage of retroactive laws protects only the rights of
citizens; hence, a state may constitutionally pass a retroactive law that impairs its own
rights.16 Only private, and not public, rights may become vested in a constitutional
sense.17 Otherwise stated, there is a distinction between the effect to be given a retroactive
statute when it relates to private rights, and when it relates to public rights, public rights
may always be modified or annulled by subsequent legislation without contravening the
Due Process Clause.18
II – The statement of respondent’s counsel during the proceedings in the Court of Appeals
that the dismissal of respondent’s case was without his express consent cannot be >taken
as a judicial admission.
88
The statement of respondent’s counsel during the proceedings in the Court of Appeals that
the dismissal of respondent’s case was without his express consent cannot be taken as a
judicial admission. For one, the statement was uttered merely to support a legal argument.
One thing clear from the pleadings of the contending parties is their vacillation on whether
or not respondent gave his express consent to the dismissal. When respondent’s counsel
was invoking double jeopardy, he submitted that respondent did not give his express
consent to the dismissal. It was the Solicitor General who was arguing otherwise. Clearly,
respondent’s counsel made the statement as a legal strategy to justify the application of
double jeopardy. That this was his intention is evident from his oral argument in the Court of
Appeals. Surely, this Court is duty-bound to determine the truth. The inconstancy in the
positions taken by both the prosecution and the defense only renders imperative a more
probing inquiry on the matter of express consent.
For another, the statement was not made for the purpose of avoiding the necessity of
proof. It has been held that an admission of fact by counsel for accused, to be admissible,
must be voluntarily and purposely made to avoid necessity of proof,19 or it must be distinct
and formal made for the express purpose of dispensing with proof of a fact on the trial.20 An
admission made by counsel in argument does not take the place of testimony,21 and is not
sufficient to justify the trial court in assuming that accused admitted such matter. Otherwise
stated, only those admissions made by the attorney during the trial of the case, which are
solemnly and formally made for the purpose of eliminating the proof of the fact admitted,
that will bind the client. This is without question the just and proper rule to be followed, for
human life and liberty are too important to depend on the slip of an attorney’s tongue
during the pressure and rapidity of the trial. Thus, the accused is not bound by the
admissions made by his attorney in the course of his argument.22 His rights cannot be
prejudiced by any statement made by his counsel or any admission he may attempt to
make23 and that an attorney cannot admit away the life or liberty of accused in the face
of a plea of not guilty.241awphi1.nét
Corollarily, the majority’s view that "a cursory reading of the respondent’s motion for judicial
determination of probable cause (filed with the trial court) will show x x x that respondent
was only asking the court to determine whether or not there was probable cause for the
issuance of a warrant for his arrest and in the meantime, to hold in abeyance the issuance
of said warrant" and not to dismiss the case is hardly convincing. It appears from the
Resolution25 dated March 29, 1999 of the trial court that respondent’s prayer was for that
court to "(1) make a judicial determination of the existence of probable cause for the
issuance of warrants of arrest; (2) hold in abeyance the issuance of warrants in the
meantime; and (3) dismiss the cases should the court find no probable cause." Clearly, this
third plea is a manifestation that the dismissal of the cases was with respondent’s consent.
While it is true that what he filed was a mere motion for the judicial determination of
probable cause and for examination of prosecution witnesses, the same was anchored on
the case of Allado vs. Diokno.26 There, we ruled that "[I]f upon the filing of the information in
court, the trial judge, after reviewing the information and the document attached thereto,
finds that no probable cause exists, he must either call for the complainant and the
witnesses themselves or simply dismiss the case. There is no reason to hold the accused for
trial and further expose him to an open and public accusation of the crime when no
probable cause exists." With this as respondent’s premise, I believe it is safe to conclude
that the dismissal was with his express consent. He would not have anchored his case
in Allado vs. Diokno if he did not desire its legal consequences.
Finally, I find the re-raffling of respondent’s cases to a special heinous court unnecessary.
Supreme Court Circular No. 7-7427 expressly provides that "when a case is dismissed for any
cause or reason whatsoever and the same is re-filed, it shall not be included in the raffle
anymore but shall be assigned to the branch to which the original case pertained. If, by
mistake or otherwise, such case is raffled and assigned to another branch, the latter must
transfer the case to the branch to which it originally belonged, in which event another case
shall be assigned by raffle as replacement." Considering that a provisional dismissal of a
criminal case does not terminate it,28 it is more consistent with the majority’s theory that
Criminal Cases Nos. Q-99-81679 to 89 be simply referred back to the branch to which they
originally belonged.
WHEREFORE, I vote to GRANT respondent’s motion for reconsideration.
3 While there are jurisprudence to the effect that once the charges are dismissed,
the speedy trial guarantee is no longer applicable, (State vs. Marion, 404 U.S. 307;
Dillingham vs. United States, 423 U.S. 64; Barker vs. Wingo, 407 U.S. 514), however, I
am convinced that the peculiar facts of the present case render said
jurisprudence inappropriate. On its face, the Constitutional provision seems to
apply to one who has been publicly accused, has obtained dismissal of those
charges, and has then been charged once again with the same crime by the
same sovereign. Nothing therein suggests that an accused must be continuously
charged in order to obtain the benefits of the speedy trial right. A natural reading
of the language is that the Speedy Trial Clause continues to protect one who has
been accused of a crime until the government has completed its attempts to try
him for that crime. In Klopfer vs. North Carolina, 386 U.S. 213, the prosecutor
entered a "nolle prosequi with leave" after the first trial ended in a mistrial. Under
that procedure, the defendant was discharged from custody and subjected to no
obligation to report to the court. It was held that the indefinite postponement of
the prosecution, over defendant’s objection, "clearly" denied the defendant the
89
right to a speedy trial. The Court reasoned that the defendant may be denied an
opportunity to exonerate himself in the discretion of the solicitor and held subject
to trial, over his objection, throughout the unlimited period in which the solicitor
may restore the case to the calendar. During that period, there is no means by
which he can obtain a dismissal or have the case restored to the calendar trial.
The prosecutor was required to take affirmative steps to reinstate the prosecution;
no charges were "actively" pending against Klopfer, nevertheless, the court held
that the speedy trial right applied.
4 21 Am Jur 2d § 1031, citing Ex parte State ex rel. Atty. Gen., 255 Ala. 443, 52 So.
2d 158 (1951); Hicks vs. People, 148 Colo. 26, 364 P. 2d 877 (1961); State vs. Strong,
8 Kan. App. 2d 589, 663 P. 2d 668 (1983); State vs. Stimson, 41 Was. App. 385, 704 P.
2d 1220 (Div. 3 1985).
5 State vs. Kuhnhausen, 201 Or. 478, 272 P. 2d 225 (1954).
6 Barela vs. People, 826 P. 2d 1249 (Colo.1992) State vs. Russel, 108 Idaho 58, 696 P.
2d 909 (1985); State vs. Strong, supra.
7 Article 22, Revised Penal Code.
8 Both consistency and sound legal principles demand that we seek our
precedents in Latin rather than in American jurisprudence. In United States vs.
Cuna (12 Phil. 241 [1908]), it was held that "neither English nor American common
law is in force in these islands, nor are the doctrines derived therefrom binding
upon our courts, save only insofar as they are founded on sound principles
applicable to local conditions, and are not in conflict with existing law."
9 People vs. Parel, 44 Phil. 437, 441 (1923).
10 Id.
11 Id.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-64279 April 30, 1984
ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners,
vs.
JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court, Caloocan City Branch 129, acting
for REGIONAL TRIAL COURT of Camarines Norte, now presided over by JUDGE NICANOR
ORIÑO, Daet Branch 40; DRA. BELLA S. MIRANDA, ARNULFO V. ZENAROSA, ET
AL., respondents.
Quiazon, De Guzman Makalintal and Barot for petitioners.
The Solicitor General for respondents.

AQUINO, J.:ñé+.£ªwph!1
At issue in this case is the enforceability, before publication in the Official Gazette of June
14, 1982, of Presidential Executive Order No. 626-A dated October 25, 1980, providing for
the confiscation and forfeiture by the government of carabaos transported from one
province to another.
Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers, transported in an Isuzu ten-
wheeler truck in the evening of April 2, 1982 twenty-six carabaos and a calf from Sipocot,
Camarines Sur with Padre Garcia, Batangas, as the destination.
They were provided with (1) a health certificate from the provincial veterinarian of
Camarines Sur, issued under the Revised Administrative Code and Presidential Decree No.
533, the Anti-Cattle Rustling Law of 1974; (2) a permit to transport large cattle issued under
the authority of the provincial commander; and (3) three certificates of inspection, one
from the Constabulary command attesting that the carabaos were not included in the list
of lost, stolen and questionable animals; one from the LIvestock inspector, Bureau of Animal
Industry of Libmanan, Camarines Sur and one from the mayor of Sipocot.
In spite of the permit to transport and the said four certificates, the carabaos, while passing
at Basud, Camarines Norte, were confiscated by Lieutenant Arnulfo V. Zenarosa, the town's
police station commander, and by Doctor Bella S. Miranda, provincial veterinarian. The
confiscation was basis on the aforementioned Executive Order No. 626-A which provides
"that henceforth, no carabao, regardless of age, sex, physical condition or purpose and no
carabeef shall be transported from one province to another. The carabaos or carabeef
transported in violation of this Executive Order as amended shall be subject to confiscation
and forfeiture by the government to be distributed ... to deserving farmers through dispersal
as the Director of Animal Industry may see fit, in the case of carabaos" (78 OG 3144).
Doctor Miranda distributed the carabaos among twenty-five farmers of Basud, and to a
farmer from the Vinzons municipal nursery (Annex 1).
The Pesigans filed against Zenarosa and Doctor Miranda an action for replevin for the
recovery of the carabaos allegedly valued at P70,000 and damages of P92,000. The
replevin order could not be executed by the sheriff. In his order of April 25, 1983 Judge
Domingo Medina Angeles, who heard the case at Daet and who was later transferred to
Caloocan City, dismissed the case for lack of cause of action.
The Pesigans appealed to this Court under Rule 45 of the Rules of Court and section 25 of
the Interim Rules and pursuant to Republic Act No. 5440, a 1968 law which superseded Rule
42 of the Rules of Court.
We hold that the said executive order should not be enforced against the Pesigans on April
2, 1982 because, as already noted, it is a penal regulation published more than two months
later in the Official Gazette dated June 14, 1982. It became effective only fifteen days
90
thereafter as provided in article 2 of the Civil Code and section 11 of the Revised
Administrative Code.
The word "laws" in article 2 (article 1 of the old Civil Code) includes circulars and regulations
which prescribe penalties. Publication is necessary to apprise the public of the contents of
the regulations and make the said penalties binding on the persons affected thereby.
(People vs. Que Po Lay, 94 Phil. 640; Lim Hoa Ting vs. Central Bank of the Phils., 104 Phil. 573;
Balbuna vs. Secretary of Education, 110 Phil. 150.)
The Spanish Supreme Court ruled that "bajo la denominacion generica de leyes, se
comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales
ordenes dictadas de conformidad con las mismas por el Gobierno en uso de su potestad
(1 Manresa, Codigo Civil, 7th Ed., p. 146.)
Thus, in the Que Po Lay case, a person, convicted by the trial court of having violated
Central Bank Circular No. 20 and sentenced to six months' imprisonment and to pay a fine
of P1,000, was acquitted by this Court because the circular was published in the Official
Gazette three months after his conviction. He was not bound by the circular.
That ruling applies to a violation of Executive Order No. 626-A because its confiscation and
forfeiture provision or sanction makes it a penal statute. Justice and fairness dictate that the
public must be informed of that provision by means of publication in the Gazette before
violators of the executive order can be bound thereby.
The cases of Police Commission vs. Bello, L-29960, January 30, 1971, 37 SCRA 230
and Philippine Blooming Mills vs. Social Security System, 124 Phil. 499, cited by the
respondents, do not involve the enforcement of any penal regulation.
Commonwealth Act No. 638 requires that all Presidential executive orders having general
applicability should be published in the Official Gazette. It provides that "every order or
document which shag prescribe a penalty shall be deemed to have general applicability
and legal effect."
Indeed, the practice has always been to publish executive orders in the Gazette. Section
551 of the Revised Administrative Code provides that even bureau "regulations and orders
shall become effective only when approved by the Department Head and published in the
Official Gazette or otherwise publicly promulgated". (See Commissioner of Civil Service vs.
Cruz, 122 Phil. 1015.)
In the instant case, the livestock inspector and the provincial veterinarian of Camarines
Norte and the head of the Public Affairs Office of the Ministry of Agriculture were unaware
of Executive Order No. 626-A. The Pesigans could not have been expected to be cognizant
of such an executive order.
It results that they have a cause of action for the recovery of the carabaos. The summary
confiscation was not in order. The recipients of the carabaos should return them to the
Pesigans. However, they cannot transport the carabaos to Batangas because they are
now bound by the said executive order. Neither can they recover damages. Doctor
Miranda and Zenarosa acted in good faith in ordering the forfeiture and dispersal of the
carabaos.
WHEREFORE, the trial court's order of dismissal and the confiscation and dispersal of the
carabaos are reversed and set aside. Respondents Miranda and Zenarosa are ordered to
restore the carabaos, with the requisite documents, to the petitioners, who as owners are
entitled to possess the same, with the right to dispose of them in Basud or Sipocot,
Camarines Sur. No costs.
SO ORDERED.1äwphï1.ñët
Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin, JJ., concur.
De Castro, J., took no part.
Separate Opinions
ABAD SANTOS, J., concurring:
The Pesigans are entitled to the return of their carabaos or the value of each carabao
which is not returned for any reason. The Pesigans are also entitled to a reasonable rental
for each carabao from the twenty six farmers who used them. The farmers should not enrich
themselves at the expense of the Pesigans.
Separate Opinions
ABAD SANTOS, J., concurring:
The Pesigans are entitled to the return of their carabaos or the value of each carabao
which is not returned for any reason. The Pesigans are also entitled to a reasonable rental
for each carabao from the twenty six farmers who used them. The farmers should not enrich
themselves at the expense of the Pesigans.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
91
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized
in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws
to be valid and enforceable must be published in the Official Gazette or otherwise
effectively promulgated, petitioners seek a writ of mandamus to compel respondent public
officials to publish, and/or cause the publication in the Official Gazette of various
presidential decrees, letters of instructions, general orders, proclamations, executive orders,
letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197,
200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361,
368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551,
566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836,
923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242,
1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826,
1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141,
150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-
213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-
273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327,
343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440,
444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602,
609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879,
881, 882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526,
1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-
1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723,
1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-
1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829,
1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858,
1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952,
1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161,
2163-2244.
 e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492,
494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553,
560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-
703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59,
76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-
439.
The respondents, through the Solicitor General, would have this case dismissed outright on
the ground that petitioners have no legal personality or standing to bring the instant
petition. The view is submitted that in the absence of any showing that petitioners are
personally and directly affected or prejudiced by the alleged non-publication of the
presidential issuances in question said petitioners are without the requisite legal personality
2 to the case at bar for the reason 'that it is always dangerous to apply a
to institute this mandamus proceeding, they are not being "aggrieved parties" within the
meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board
or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use a rd enjoyment of a right or
office to which such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court
alleging the facts with certainty and praying that judgment be rendered
commanding the defendant, immediately or at some other specified
time, to do the act required to be done to Protect the rights of the
petitioner, and to pay the damages sustained by the petitioner by
reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a
public right and its object is to compel the performance of a public duty, they need not
show any specific interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs.
Governor General, this Court held that while the general rule is that "a writ of mandamus
3 Respondents further contend that publication in the Official Gazette is not a sine qua non
would be granted to a private individual only in those cases where he has some private or
particular interest to be subserved, or some particular right to be protected, independent
of that which he holds with the public at large," and "it is for the public officers exclusively to
apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e.,
469]," nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are regarded as the
92
real party in interest and the relator at whose instigation the proceedings are instituted
need not show that he has any legal or special interest in the result, it being sufficient to
show that he is a citizen and as such interested in the execution of the laws [High,
Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a
proper party to the mandamus proceedings brought to compel the Governor General to
call a special election for the position of municipal president in the town of Silay, Negros
Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the
proposition that the relator is a proper party to proceedings of this
character when a public right is sought to be enforced. If the general
rule in America were otherwise, we think that it would not be applicable
general rule to a particular case without keeping in mind the reason for
the rule, because, if under the particular circumstances the reason for
the rule does not exist, the rule itself is not applicable and reliance upon
the rule may well lead to error'
No reason exists in the case at bar for applying the general rule insisted
upon by counsel for the respondent. The circumstances which surround
this case are different from those in the United States, inasmuch as if the
relator is not a proper party to these proceedings no other person could
be, as we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of this
character.
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be
enforced by petitioners herein is a public right recognized by no less than the fundamental
law of the land. If petitioners were not allowed to institute this proceeding, it would indeed
be difficult to conceive of any other person to initiate the same, considering that the
Solicitor General, the government officer generally empowered to represent the people,
has entered his appearance for respondents in this case.
requirement for the effectivity of laws where the laws themselves provide for their own
effectivity dates. It is thus submitted that since the presidential issuances in question contain
special provisions as to the date they are to take effect, publication in the Official Gazette
is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the
Civil Code:
 Art. 2. Laws shall take effect after fifteen days following the completion
of their publication in the Official Gazette, unless it is otherwise provided,
...
The interpretation given by respondent is in accord with this Court's construction of said
article. In a long line of decisions,4 this Court has ruled that publication in the Official
Gazette is necessary in those cases where the legislation itself does not provide for its
effectivity date-for then the date of publication is material for determining its date of
effectivity, which is the fifteenth day following its publication-but not when the law itself
provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the
effectivity of laws with the fact of publication. Considered in the light of other statutes
applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not
preclude the requirement of publication in the Official Gazette, even if the law itself
provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as
follows:
Section 1. There shall be published in the Official Gazette [1] all important
legisiative acts and resolutions of a public nature of the, Congress of the
Philippines; [2] all executive and administrative orders and
proclamations, except such as have no general applicability; [3]
decisions or abstracts of decisions of the Supreme Court and the Court
of Appeals as may be deemed by said courts of sufficient importance to
be so published; [4] such documents or classes of documents as may be
required so to be published by law; and [5] such documents or classes of
documents as the President of the Philippines shall determine from time
to time to have general applicability and legal effect, or which he may
authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate
notice of the various laws which are to regulate their actions and conduct as citizens.
Without such notice and publication, there would be no basis for the application of the
maxim "ignorantia legis non excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which he had no notice
whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of
laws taken so vital significance that at this time when the people have bestowed upon the
President a power heretofore enjoyed solely by the legislature. While the people are kept
abreast by the mass media of the debates and deliberations in the Batasan Pambansa—
and for the diligent ones, ready access to the legislative records—no such publicity
accompanies the law-making process of the President. Thus, without publication, the
93
people have no means of knowing what presidential decrees have actually been
promulgated, much less a definite way of informing themselves of the specific contents
and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion
generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el
Gobierno en uso de su potestad.5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published
in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials
an imperative duty. That duty must be enforced if the Constitutional right of the people to
be informed on matters of public concern is to be given substance and reality. The law itself
makes a list of what should be published in the Official Gazette. Such listing, to our mind,
leaves respondents with no discretion whatsoever as to what must be included or excluded
from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability"
is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or
penalties for their violation or otherwise impose a burden or. the people, such as tax and
revenue measures, fall within this category. Other presidential issuances which apply only to
particular persons or class of persons such as administrative and executive orders need not
be published on the assumption that they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of
general applicability" is a requirement of due process. It is a rule of law that before a person
may be bound by law, he must first be officially and specifically informed of its contents. As
Justice Claudio Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which
all form part of the law of the land, the requirement of due process and
the Rule of Law demand that the Official Gazette as the official
government repository promulgate and publish the texts of all such
decrees, orders and instructions so that the people may know where to
obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have
not been published, shall have no force and effect. Some members of the Court, quite
apprehensive about the possible unsettling effect this decision might have on acts done in
reliance of the validity of those presidential decrees which were published only during the
pendency of this petition, have put the question as to whether the Court's declaration of
invalidity apply to P.D.s which had been enforced or implemented prior to their publication.
The answer is all too familiar. In similar situations in the past this Court had taken the
pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter
Bank 8 to wit:
 The courts below have proceeded on the theory that the Act of
Congress, having been found to be unconstitutional, was not a law; that
it was inoperative, conferring no rights and imposing no duties, and
hence affording no basis for the challenged decree. Norton v. Shelby
County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S.
559, 566. It is quite clear, however, that such broad statements as to the
effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a
determination, is an operative fact and may have consequences which
cannot justly be ignored. The past cannot always be erased by a new
judicial declaration. The effect of the subsequent ruling as to invalidity
may have to be considered in various aspects-with respect to particular
conduct, private and official. Questions of rights claimed to have
become vested, of status, of prior determinations deemed to have
finality and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand
examination. These questions are among the most difficult of those
which have engaged the attention of courts, state and federal and it is
manifest from numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of
a party under the Moratorium Law, albeit said right had accrued in his favor before said
law was declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication
in the Official Gazette is "an operative fact which may have consequences which cannot
be justly ignored. The past cannot always be erased by a new judicial declaration ... that
an all-inclusive statement of a principle of absolute retroactive invalidity cannot be
justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the
presidential decrees sought by petitioners to be published in the Official Gazette, only
Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not
been so published. 10 Neither the subject matters nor the texts of these PDs can be
ascertained since no copies thereof are available. But whatever their subject matter may
be, it is undisputed that none of these unpublished PDs has ever been implemented or
enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon
Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal]
regulations and make the said penalties binding on the persons affected thereby. " The
cogency of this holding is apparently recognized by respondent officials considering the
94
manifestation in their comment that "the government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the same shall have been published in the
Official Gazette or in some other publication, even though some criminal laws provide that
they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so
published, they shall have no binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written
opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly
impose the requirement of publication in the Official Gazette for unpublished "presidential
issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would
arise if made to apply adversely to a party who is not even aware of the existence of any
legislative or executive act having the force and effect of law. My point is that such
publication required need not be confined to the Official Gazette. From the pragmatic
standpoint, there is an advantage to be gained. It conduces to certainty. That is too be
admitted. It does not follow, however, that failure to do so would in all cases and under all
circumstances result in a statute, presidential decree or any other executive act of the
same category being bereft of any binding force and effect. To so hold would, for me, raise
a constitutional question. Such a pronouncement would lend itself to the interpretation that
such a legislative or presidential act is bereft of the attribute of effectivity unless published in
the Official Gazette. There is no such requirement in the Constitution as Justice Plana so
aptly pointed out. It is true that what is decided now applies only to past "presidential
issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible
misconception as to what is required for any statute or presidential act to be impressed with
binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its
first paragraph sets forth what to me is the constitutional doctrine applicable to this case.
Thus: "The Philippine Constitution does not require the publication of laws as a prerequisite
for their effectivity, unlike some Constitutions elsewhere. It may be said though that the
guarantee of due process requires notice of laws to affected Parties before they can be
bound thereby; but such notice is not necessarily by publication in the Official Gazette. The
due process clause is not that precise. 1 I am likewise in agreement with its closing
paragraph: "In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without notice. This
is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall
be by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the
government "must be ascertainable in some form if it is to be enforced at all. 3 It would
indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is
unknown and unknowable. Publication, to repeat, is thus essential. What I am not
4 I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme.
prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure
once published therein there is the ascertainable mode of determining the exact date of its
effectivity. Still for me that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it could be that
parties aware of their existence could have conducted themselves in accordance with
their provisions. If no legal consequences could attach due to lack of publication in the
Official Gazette, then serious problems could arise. Previous transactions based on such
"Presidential Issuances" could be open to question. Matters deemed settled could still be
inquired into. I am not prepared to hold that such an effect is contemplated by our
decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases
though, retroactivity as such is not conclusive on the due process aspect. There must still be
a showing of arbitrariness. Moreover, where the challenged presidential decree or
executive act was issued under the police power, the non-impairment clause of the
Constitution may not always be successfully invoked. There must still be that process of
balancing to determine whether or not it could in such a case be tainted by infirmity. In 6 laws which are silent as to their effectivity [date] need be published in the Official Gazette
traditional terminology, there could arise then a question of unconstitutional application.
That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general
application. I am not in agreement with the view that such publication must be in the
Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to
laws taking effect after fifteen days following the completion of their publication in the
Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the
Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and
95
cannot have the juridical force of a constitutional command. A later legislative or
executive act which has the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official
Gazette would be devoid of any legal character. That would be, in my opinion, to go too
far. It may be fraught, as earlier noted, with undesirable consequences. I find myself
therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay
concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
Justice Herrera. The Rule of Law connotes a body of norms and laws published and
ascertainable and of equal application to all similarly circumstances and not subject to
arbitrary change but only under certain set procedures. The Court has consistently stressed
that "it is an elementary rule of fair play and justice that a reasonable opportunity to be
informed must be afforded to the people who are commanded to obey before they can
be punished for its violation,1 citing the settled principle based on due process enunciated
in earlier cases that "before the public is bound by its contents, especially its penal
provisions, a law, regulation or circular must first be published and the people officially and
specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code
and the Revised Administrative Code, there would be no basis nor justification for the
corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions
of the law are ascertainable from the public and official repository where they are duly
published) that "Ignorance of the law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only
for their effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is
that "laws shall take effect after fifteen days following the completion of their publication in
the Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is
provided by the law itself. This proviso perforce refers to a law that has been duly published
pursuant to the basic constitutional requirements of due process. The best example of this is
the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one
year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most
laws or decrees specify the date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity 3 would be to nullify and render
nugatory the Civil Code's indispensable and essential requirement of prior publication in the
Official Gazette by the simple expedient of providing for immediate effectivity or an earlier
effectivity date in the law itself before the completion of 15 days following its publication
which is the period generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of
effectivity, it has to be published. What I would like to state in connection with that
proposition is that when a date of effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the Official Gazette, it will
not mean that the decree can have retroactive effect to the date of effectivity mentioned
in the decree itself. There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee
of due process requires notice of laws to affected parties before they can be bound
thereby; but such notice is not necessarily by publication in the Official Gazette. The due
process clause is not that precise. Neither is the publication of laws in the Official
Gazette required by any statute as a prerequisite for their effectivity, if said laws already
provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette, unless it is otherwise provided "
Two things may be said of this provision: Firstly, it obviously does not apply to a law with a
built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law
may provide not only a different period for reckoning its effectivity date but also a different
mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the
Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to
Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably
therewith, it authorizes the publication of the Official Gazette, determines its frequency,
provides for its sale and distribution, and defines the authority of the Director of Printing in
relation thereto. It also enumerates what shall be published in the Official Gazette, among
them, "important legislative acts and resolutions of a public nature of the Congress of the
Philippines" and "all executive and administrative orders and proclamations, except such as
have no general applicability." It is noteworthy that not all legislative acts are required to be
96
published in the Official Gazette but only "important" ones "of a public nature." Moreover,
the said law does not provide that publication in the Official Gazette is essential for the
effectivity of laws. This is as it should be, for all statutes are equal and stand on the same
footing. A law, especially an earlier one of general application such as Commonwealth Act
No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision
of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws
become effective, for no person should be bound by a law without notice. This is
elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.
GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.
DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public
nature or general applicability ineffective, until due publication thereof.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written
opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly
impose the requirement of publication in the Official Gazette for unpublished "presidential
issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would
arise if made to apply adversely to a party who is not even aware of the existence of any
legislative or executive act having the force and effect of law. My point is that such
publication required need not be confined to the Official Gazette. From the pragmatic
standpoint, there is an advantage to be gained. It conduces to certainty. That is too be
admitted. It does not follow, however, that failure to do so would in all cases and under all
circumstances result in a statute, presidential decree or any other executive act of the
same category being bereft of any binding force and effect. To so hold would, for me, raise
a constitutional question. Such a pronouncement would lend itself to the interpretation that
such a legislative or presidential act is bereft of the attribute of effectivity unless published in
the Official Gazette. There is no such requirement in the Constitution as Justice Plana so
aptly pointed out. It is true that what is decided now applies only to past "presidential
issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible
misconception as to what is required for any statute or presidential act to be impressed with
binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its
first paragraph sets forth what to me is the constitutional doctrine applicable to this case.
Thus: "The Philippine Constitution does not require the publication of laws as a prerequisite
for their effectivity, unlike some Constitutions elsewhere. It may be said though that the
guarantee of due process requires notice of laws to affected Parties before they can be
bound thereby; but such notice is not necessarily by publication in the Official Gazette. The
due process clause is not that precise. 1 I am likewise in agreement with its closing
paragraph: "In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without notice. This
is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall
be by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the
government "must be ascertainable in some form if it is to be enforced at all. It would
3
indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is
unknown and unknowable. Publication, to repeat, is thus essential. What I am not
4 I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme.
prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure
once published therein there is the ascertainable mode of determining the exact date of its
effectivity. Still for me that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it could be that
parties aware of their existence could have conducted themselves in accordance with
their provisions. If no legal consequences could attach due to lack of publication in the
Official Gazette, then serious problems could arise. Previous transactions based on such
"Presidential Issuances" could be open to question. Matters deemed settled could still be
inquired into. I am not prepared to hold that such an effect is contemplated by our
decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases
though, retroactivity as such is not conclusive on the due process aspect. There must still be
a showing of arbitrariness. Moreover, where the challenged presidential decree or
executive act was issued under the police power, the non-impairment clause of the
Constitution may not always be successfully invoked. There must still be that process of
balancing to determine whether or not it could in such a case be tainted by infirmity. In 6 laws which are silent as to their effectivity [date] need be published in the Official Gazette
97
traditional terminology, there could arise then a question of unconstitutional application.
That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general
application. I am not in agreement with the view that such publication must be in the
Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to
laws taking effect after fifteen days following the completion of their publication in the
Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the
Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional command. A later legislative or
executive act which has the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official
Gazette would be devoid of any legal character. That would be, in my opinion, to go too
far. It may be fraught, as earlier noted, with undesirable consequences. I find myself
therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay
concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
Justice Herrera. The Rule of Law connotes a body of norms and laws published and
ascertainable and of equal application to all similarly circumstances and not subject to
arbitrary change but only under certain set procedures. The Court has consistently stressed
that "it is an elementary rule of fair play and justice that a reasonable opportunity to be
informed must be afforded to the people who are commanded to obey before they can
be punished for its violation,1 citing the settled principle based on due process enunciated
in earlier cases that "before the public is bound by its contents, especially its penal
provisions, a law, regulation or circular must first be published and the people officially and
specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code
and the Revised Administrative Code, there would be no basis nor justification for the
corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions
of the law are ascertainable from the public and official repository where they are duly
published) that "Ignorance of the law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only
for their effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is
that "laws shall take effect after fifteen days following the completion of their publication in
the Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is
provided by the law itself. This proviso perforce refers to a law that has been duly published
pursuant to the basic constitutional requirements of due process. The best example of this is
the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one
year [not 15 days] after such publication. To sustain respondents' misreading that "most
2 them, "important legislative acts and resolutions of a public nature of the Congress of the
laws or decrees specify the date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity 3 would be to nullify and render
nugatory the Civil Code's indispensable and essential requirement of prior publication in the
Official Gazette by the simple expedient of providing for immediate effectivity or an earlier
effectivity date in the law itself before the completion of 15 days following its publication
which is the period generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of
effectivity, it has to be published. What I would like to state in connection with that
proposition is that when a date of effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the Official Gazette, it will
not mean that the decree can have retroactive effect to the date of effectivity mentioned
in the decree itself. There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee
of due process requires notice of laws to affected parties before they can be bound
thereby; but such notice is not necessarily by publication in the Official Gazette. The due
process clause is not that precise. Neither is the publication of laws in the Official
Gazette required by any statute as a prerequisite for their effectivity, if said laws already
provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette, unless it is otherwise provided "
Two things may be said of this provision: Firstly, it obviously does not apply to a law with a
built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law
may provide not only a different period for reckoning its effectivity date but also a different
mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the
Official Gazette.
98
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to
Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably
therewith, it authorizes the publication of the Official Gazette, determines its frequency,
provides for its sale and distribution, and defines the authority of the Director of Printing in
relation thereto. It also enumerates what shall be published in the Official Gazette, among
Philippines" and "all executive and administrative orders and proclamations, except such as
have no general applicability." It is noteworthy that not all legislative acts are required to be
published in the Official Gazette but only "important" ones "of a public nature." Moreover,
the said law does not provide that publication in the Official Gazette is essential for the
effectivity of laws. This is as it should be, for all statutes are equal and stand on the same
footing. A law, especially an earlier one of general application such as Commonwealth Act
No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision
of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws
become effective, for no person should be bound by a law without notice. This is
elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.
GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.
DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public
nature or general applicability ineffective, until due publication thereof.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32485 October 22, 1970
IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S RIGHTS AND
DUTIES UNDER SEC. 8 OF R.A. No. 6132.
KAY VILLEGAS KAMI, INC., petitioner.
MAKASIAR, J.:.
This petition for declaratory relief was filed by Kay Villegas Kami, Inc., claiming to be a duly
recognized and existing non-stock and non-profit corporation created under the laws of
the land, and praying for a determination of the validity of Sec. 8 of R.A. No. 6132 and a
declaration of petitioner's rights and duties thereunder. In paragraph 7 of its petition,
petitioner avers that it has printed materials designed to propagate its ideology and
program of government, which materials include Annex B; and that in paragraph 11 of said
petition, petitioner intends to pursue its purposes by supporting delegates to the
Constitutional Convention who will propagate its ideology.
Petitioner, in paragraph 7 of its petition, actually impugns because it quoted, only the first
paragraph of Sec. 8(a) on the ground that it violates the due process clause, right of
association, and freedom of expression and that it is an ex post facto law.
The first three grounds were overruled by this Court when it held that the questioned
provision is a valid limitation on the due process, freedom of expression, freedom of
association, freedom of assembly and equal protection clauses; for the same is designed to
prevent the clear and present danger of the twin substantive evils, namely, the prostitution
of electoral process and denial of the equal protection of the laws. Moreover, under the
balancing-of-interests test, the cleansing of the electoral process, the guarantee of equal
change for all candidates, and the independence of the delegates who must be
"beholden to no one but to God, country and conscience," are interests that should be
accorded primacy.1
The petitioner should therefore be accordingly guided by the pronouncements in the cases
of Imbong and Gonzales.2
The claim of petitioner that the challenged provision constitutes an ex post facto law is
likewise untenable.
An ex post facto law is one which:.
(1) makes criminal an act done before the passage of the law and
which was innocent when done, and punishes such an act;
(2) aggravates a crime, or makes it greater than it was, when
committed;
(3) changes the punishment and inflicts a greater punishment than the
law annexed to the crime when committed;
(4) alters the legal rules of evidence, and authorizes conviction upon less
or different testimony than the law required at the time of the
commission of the offense;
(5) assuming to regulate civil rights and remedies only, in effect imposes
penalty or deprivation of a right for something which when done was
lawful; and
99
(6) deprives a person accused of a crime of some lawful protection to
which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty.3
From the aforesaid definition as well as classification of ex post facto laws, the constitutional
inhibition refers only to criminal laws which are given retroactive effect.4
While it is true that Sec. 18 penalizes a violation of any provision of R.A. No. 6132 including
Sec. 8(a) thereof, the penalty is imposed only for acts committed after the approval of the
law and not those perpetrated prior thereto. There is nothing in the law that remotely
insinuates that Secs. 8(a) and 18, or any other provision thereof, shall apply to acts carried
out prior to its approval. On the contrary, See. 23 directs that the entire law shall be
effective upon its approval. It was approved on August 24, 1970.
WHEREFORE, the prayer of the petition is hereby denied and paragraph 1 of Sec. 8(a) of
R.A. No. 6132 is not unconstitutional. Without costs.
Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.
Zaldivar, J., reserves his vote.
Concepcion, C.J., is on leave.
Separate Opinions
FERNANDO, J., concurring and dissenting:
Concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-
32432 and Gonzales v. Comelec, L-32443.
BARREDO, J., dissenting:
Reiterates his views in Gonzales and Imbong insofar as they are relevant to the issues in this
case, dissents, even as agrees that Republic Act 6132 is not ex post facto.
VILLAMOR, J., concurring:
Concurs in the sense that the law is declared not ex post facto law and dissents as to the
rest.
TEEHANKEE, J., dissenting:
The Court's decision reaffirms its split-vote ruling last September 11, 1970 in Imbong vs.
Ferrer and Gonzales vs. Comelec1 upholding the constitutionality of the first paragraph of
section 8(a) of Republic Act 6132. Inasmuch as I was unable to participate in the said
cases, 2 I have expressed my contrary view in my separate dissenting opinion in Badoy, Jr.
vs. Ferrer 3 that the challenged provision, together with the Act's other restrictions and
strictures enumerated therein, "oppressively and unreasonably straitjacket the candidates
as well as the electorate and gravely violate the constitutional guaranties of freedom of
expression, freedom of the press and freedom of association, and, deny due process and
the equal protection of the laws."
I therefore dissent from the Court's decision at bar for the same reason and considerations
stated in my separate dissenting opinion in the case of Badoy.
I only wish to add a few words on the statements in the main opinion in Imbong-
Gonzales that "(W)hile it may be true that a party's support of a candidate is not wrong per
se, it is equally true that Congress in the exercise of the broad law-making authority can
declare certain acts as mala prohibita when justified by the exigencies of the times. One
such act is the party or organization support prescribed in Sec. 8(a), which ban is a valid
limitation on the freedom of association as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that 'equality of chances may be better attained by
banning all organization support.' "
I trust that said statements were not intended, and should not be construed, as endorsing
the contention of Senator Tolentino, the Act's sponsor, that "(T)he protection of the
Constitution cannot be invoked for the right of association when the purpose is a malum
prohibitum because such purpose would be "contrary to law" " and "(O)nce the ban (on
party and organization support) is approved into law, the freedom of association cannot
be invoked against it" since the Constitution decrees only that "(T)he right to form
associations or societies for purposes not contrary to law shall not be abridged."4
Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of freedom of
association which has its root in the Malolos Constitution would render sterile and
meaningless the Constitutional safeguard, should Congress be conceded, in the exercise of
its broad law-making authority, the power to strike down at any time associations and
societies by the simple expedient of declaring their purposes or certain activities, not
wrong per se as "contrary to law" or mala prohibita. I believe that such a concept begs the
question. Obviously, the word "law" in the qualifying clause "for purposes not contrary to
law" does not mean that an enactment of the legislature forecloses the question with
finality and sounds the death-knell. Laws that would regulate the purposes for which
associations and societies may be formed or would declare their purposes mala prohibita
must pass the usual constitutional test of reasonableness and furthermore, must not abridge
freedom of speech and press.5
# Separate Opinions
FERNANDO, J., concurring and dissenting:
Concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-
32432 and Gonzales v. Comelec, L-32443.
BARREDO, J., dissenting:
100
Reiterates his views in Gonzales and Imbong insofar as they are relevant to the issues in this
case, dissents, even as agrees that Republic Act 6132 is not ex post facto.
VILLAMOR, J., concurring:
Concurs in the sense that the law is declared not ex post facto law and dissents as to the
rest.
TEEHANKEE, J., dissenting:.
The Court's decision reaffirms its split-vote ruling last September 11, 1970 in Imbong vs.
Ferrer and Gonzales vs. Comelec1 upholding the constitutionality of the first paragraph of
section 8(a) of Republic Act 6132. Inasmuch as I was unable to participate in the said
cases, 2 I have expressed my contrary view in my separate dissenting opinion in Badoy, Jr.
vs. Ferrer 3 that the challenged provision, together with the Act's other restrictions and
strictures enumerated therein, "oppressively and unreasonably straitjacket the candidates
as well as the electorate and gravely violate the constitutional guaranties of freedom of
expression, freedom of the press and freedom of association, and, deny due process and
the equal protection of the laws."
I therefore dissent from the Court's decision at bar for the same reason and considerations
stated in my separate dissenting opinion in the case of Badoy.
I only wish to add a few words on the statements in the main opinion in Imbong-
Gonzales that "(W)hile it may be true that a party's support of a candidate is not wrong per
se, it is equally true that Congress in the exercise of the broad law-making authority can
declare certain acts as mala prohibita when justified by the exigencies of the times. One
such act is the party or organization support prescribed in Sec. 8(a), which ban is a valid
limitation on the freedom of association as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that 'equality of chances may be better attained by
banning all organization support.' "
I trust that said statements were not intended, and should not be construed, as endorsing
the contention of Senator Tolentino, the Act's sponsor, that "(T)he protection of the
Constitution cannot be invoked for the right of association when the purpose is a malum
prohibitum because such purpose would be "contrary to law" " and "(O)nce the ban (on
party and organization support) is approved into law, the freedom of association cannot
be invoked against it" since the Constitution decrees only that "(T)he right to form
associations or societies for purposes not contrary to law shall not be abridged."4
Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of freedom of
association which has its root in the Malolos Constitution would render sterile and
meaningless the Constitutional safeguard, should Congress be conceded, in the exercise of
its broad law-making authority, the power to strike down at any time associations and
societies by the simple expedient of declaring their purposes or certain activities, not
wrong per se as "contrary to law" or mala prohibita. I believe that such a concept begs the
question. Obviously, the word "law" in the qualifying clause "for purposes not contrary to
law" does not mean that an enactment of the legislature forecloses the question with
finality and sounds the death-knell. Laws that would regulate the purposes for which
associations and societies may be formed or would declare their purposes mala prohibita
must pass the usual constitutional test of reasonableness and furthermore, must not abridge
freedom of speech and press.5
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-46228 January 17, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. ROLANDO R. VILLARAZA (as City Judge of Cagayan de Oro City), and CAESAR
PUERTO, respondents.
Francisco P. Rabanes, Edgardo Y. Raagas, Casiano A. Gamotin, Jr., Office of the City Fiscal
of Cagayan de Oro City for petitioner.
Eric Menchavez for respondent Caesar Puerto.
AQUINO, J.:
This case is about the jurisdiction of a city court in estafa cases.
On December 3, 1975 an assistant city fiscal charged Caesar Puerto with estafa in the city
court of Cagayan de Oro City for having issued on October 16, 1974 two bouncing checks
for the total sum of P4, 966. 63 (Criminal Case No. 32140).
City Judge Rolando R. Villaraza in his order March 31, 1976 noted that the accused had
waived the second stage of the preliminary investigation. He directed that the case be
elevated, for trial, to the court of First Instance or the Circuit Criminal Court.
Upon petition of the prosecution, the Court of first Instance of Misamis Oriental, Cagayan
de Oro Branch VIII, in its order of February 3, 1977 returned the case to the city court
because in its opinion the case falls within the concurrent jurisdiction of the two courts and,
the city court, as the first court which took cognizance of the case, should try it.
Disagreeing with the Court of First Instance, respondent city judge in his order of April 21,
1977 directed the re-elevation of the case. His view is that the case falls within the exclusive
original jurisdiction of the Court of First Instance because estafa committed by the accused
is punishable by prision mayor medium under Presidential Decree No. 818 which took effect
on October 22, 1975 and which amended article 315 of the Revised Penal Code.
That order of respondent judge is assailed in the petition for certiorari filed in this Court on
May 27, 1977 by the office of the city fiscal of Cagayan de Oro City.
101
We hold that the case was properly filed with the city court which has original jurisdiction
over it. The estafa imputed to Caesar Puerto is punishable under article 315 of the Revised
Penal Code by arresto mayor maximum to prision correccional minimum or four months
and one day to two years and four months.
The penalty of prision mayor medium, or eight years and one day to ten years, imposed by
Presidential Decree No. 818, applies only to swindling by means of issuing bouncing checks
which was committed or after October 22, 1975.
That increased penalty does not apply to the estafa committed by Puerto on October 16,
1974. To apply it to Puerto would make the decree an ex post facto law. Its retroactive
application is prohibited by articles 21 and 22 of the Revised Penal Code and section 12,
Article IV of the Constitution.
The city court has original jurisdiction over the case because the penultimate paragraph or
section 87 of the Judiciary Law, as amended by Republic Acts Nos. 2613 and 3828, provides
that "judges of city courts shall have like jurisdiction as the Court of First Instance to try
parties charged with an offense committed within their respective jurisdictions, in which the
penalty provided by law does not exceed prision correccional or imprisonment for not
more than six years or fine not exceeding six thousand pesos or both."
As section 87 itself shows, that jurisdiction is concurrent with the court of First Instance which
is empowered to try "all criminal cases in which the penalty provided by law is imprisonment
for more than six months, or a fine of more than two hundred pesos" (Sec. 44[f], Judiciary
Law. See People vs. Nazareno, L-40037, April 30, 1976, 70 SCRA 531).
It was not necessary for the city court to have conducted the preliminary investigation of
the case. The filing of the information by the fiscal presupposes that he had conducted the
requisite preliminary investigation pursuant to Rule 112 of the Rules of Court and Republic
Act No. 5180, as amended by Presidential Decree No. 77.
WHEREFORE, the order of the Court of First Instance, returning the case to the city court, is
affirmed and the two orders of the respondent city judge, elevating the case to the Court
of First Instance, are set aside. The city court is directed to try the case. No costs.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion Jr., JJ., concur.
Santos, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18208 February 14, 1922
THE UNITED STATES, plaintiff-appellee,
vs.
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendants-appellants.
Araneta & Zaragoza for appellants.
Attorney-General Villareal for appellee.
JOHNSON, J.:
It appears from the record that on the 6th day of May, 1921, a complaint was presented in
the Court of First Instance of the city of Manila, charging the defendants with a violation of
the Usury Law (Act No. 2655). Upon said complaint they were each arrested, arraigned,
and pleaded not guilty. The cause was finally brought on for trial on the 1st day of
September, 1921. At the close of the trial, and after a consideration of the evidence
adduced, the Honorable M. V. del Rosario, judge, found that the defendants were guilty of
the crime charged in the complaint and sentenced each of them to pay a fine of P120
and, in case of insolvency, to suffer subsidiary imprisonment in accordance with the
provisions of the law. From that sentence each of the defendants appealed to this court.
The appellants now contend: (a) That the contract upon which the alleged usurious interest
was collected was executed before Act No. 2655 was adopted; (b) that at the time said
contract was made (December 30, 1915), there was no usury law in force in the Philippine
Islands; (c) that said Act No. 2655 did not become effective until the 1st day of May, 1916,
or four months and a half after the contract in question was executed; (d) that said law
could have no retroactive effect or operation, and (e) that said law impairs the obligation
of a contract, and that for all of said reasons the judgment imposed by the lower court
should be revoked; that the complaint should be dismissed, and that they should each be
discharged from the custody of the law.
The essential facts constituting the basis of the criminal action are not in dispute, and may
be stated as follows: (1) That on the 30th day of December, 1915, the alleged offended
persons Bartolome Oliveros and Engracia Lianco executed and delivered to the
defendants a contract (Exhibit B) evidencing the fact that the former had borrowed from
the latter the sum of P300, and (2) that, by virtue of the terms of said contract, the said
Bartolome Oliveros and Engracia Lianco obligated themselves to pay to the defendants
interest at the rate of five per cent (5%) per month, payable within the first ten days of each
and every month, the first payment to be made on the 10th day of January, 1916. There
were other terms in the contract which, however, are not important for the decision in the
present case.
The lower court, in the course of its opinion, stated that at the time of the execution and
delivery of said contract (Exhibit B), there was no law in force in the Philippine Islands
punishing usury; but, inasmuch as the defendants had collected a usurious rate of interest
102
after the adoption of the Usury Law in the Philippine Islands (Act No. 2655), they were guilty
of a violation of that law and should be punished in accordance with its provisions.
The law, we think, is well established that when a contract contains an obligation to pay
interest upon the principal, the interest thereby becomes part of the principal and is
included within the promise to pay. In other words, the obligation to pay interest on money
due under a contract, be it express or implied, is a part of the obligation of the contract.
Laws adopted after the execution of a contract, changing or altering the rate of interest,
cannot be made to apply to such contract without violating the provisions of the
constitution which prohibit the adoption of a law "impairing the obligation of contract." (8
Cyc., 996; 12 Corpus Juris, 1058-1059.)
The obligation of the contract is the law which binds the parties to perform their agreement
if it is not contrary to the law of the land, morals or public order. That law must govern and
control the contract in every aspect in which it is intended to bear upon it, whether it affect
its validity, construction, or discharge. Any law which enlarges, abridges, or in any manner
changes the intention of the parties, necessarily impairs the contract itself. If a law impairs
the obligation of a contract, it is prohibited by the Jones Law, and is null and void. The laws
in force in the Philippine Islands prior to any legislation by the American sovereignty,
prohibited the Legislature from giving to any penal law a retroactive effect unless such law
was favorable to the person accused. (Articles 21 and 22, Penal Code.)
A law imposing a new penalty, or a new liability or disability, or giving a new right of action,
must not be construed as having a retroactive effect. It is an elementary rule of contract
that the laws in force at the time the contract was made must govern its interpretation and
application. Laws must be construed prospectively and not retrospectively. If a contract is
legal at its inception, it cannot be rendered illegal by any subsequent legislation. If that
were permitted then the obligations of a contract might be impaired, which is prohibited
by the organic law of the Philippine Islands. (U.S. vs. Constantino Tan Quingco Chua, 39
Phil., 552; Aguilar vs. Rubiato and Gonzales Vila, 40 Phil., 570.)
Ex post facto laws, unless they are favorable to the defendant, are prohibited in this
jurisdiction. Every law that makes an action, done before the passage of the law, and
which was innocent when done, criminal, and punishes such action, is an ex post facto law.
In the present case Act No. 2655 made an act which had been done before the law was
adopted, a criminal act, and to make said Act applicable to the act complained of would
be to give it an ex post facto operation. The Legislature is prohibited from adopting a law
which will make an act done before its adoption a crime. A law may be given a retroactive
effect in civil action, providing it is curative in character, but ex post facto laws are
absolutely prohibited unless its retroactive effect is favorable to the defendant.
For the reason, therefore, that the acts complained of in the present case were legal at the
time of their occurrence, they cannot be made criminal by any subsequent or ex post
facto legislation. What the courts may say, considering the provisions of article 1255 of the
Civil Code, when a civil action is brought upon said contract, cannot now be determined.
A contract may be annulled by the courts when it is shown that it is against morals or public
order.
For all of the foregoing reasons, we are of the opinion, and so decide, that the acts
complained of by the defendants did not constitute a crime at the time they were
committed, and therefore the sentence of the lower court should be, and is hereby,
revoked; and it is hereby ordered and decreed that the complaint be dismissed, and that
the defendants be discharged from the custody of the law, with costs de oficio. So
ordered.
Araullo, C.J., Street, Malcolm, Avanceña, Ostrand, Johns and Romualdez, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-32613-14 December 27, 1972
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac,
Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy
Reyes alias "Taba," respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.
CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the constitutionality of the Anti-Subversion
Act,1 which outlaws the Communist Party of the Philippines and other "subversive
associations," and punishes any person who "knowingly, willfully and by overt acts affiliates
himself with, becomes or remains a member" of the Party or of any other similar "subversive"
organization.
On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act
was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac. On
March 10 Judge Jose C. de Guzman conducted a preliminary investigation and, finding
a prima facie case against Co, directed the Government prosecutors to file the
corresponding information. The twice-amended information, docketed as Criminal Case
No. 27, recites:
103
That on or about May 1969 to December 5, 1969, in the Municipality of
Capas, Province of Tarlac, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, feloniously became an
officer and/or ranking leader of the Communist Party of the Philippines,
an outlawed and illegal organization aimed to overthrow the
Government of the Philippines by means of force, violence, deceit,
subversion, or any other illegal means for the purpose of establishing in
the Philippines a totalitarian regime and placing the government under
the control and domination of an alien power, by being an instructor in
the Mao Tse Tung University, the training school of recruits of the New
People's Army, the military arm of the said Communist Party of the
Philippines.
That in the commission of the above offense, the following aggravating
circumstances are present, to wit:
(a) That the crime has been committed in contempt of or with insult to
public authorities;
(b) That the crime was committed by a band; and afford impunity.
(c) With the aid of armed men or persons who insure or afford impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court,
sharing the respondent Nilo Tayag and five others with subversion. After preliminary
investigation was had, an information was filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors duly
designated by the Secretary of Justice to collaborate with the Provincial
Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled
case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR
GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO,
BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES,
whose identities are still unknown, for violation of REPUBLIC ACT No. 1700,
otherwise known as the Anti-Subversion Law, committed as follows:
That in or about March 1969 and for sometime prior thereto and
thereafter, in the Province of Tarlac, within the jurisdiction of this
Honorable Court, and elsewhere in the Philippines, the above-named
accused knowingly, willfully and by overt acts organized, joined and/or
remained as offices and/or ranking leaders, of the KABATAANG
MAKABAYAN, a subversive organization as defined in Republic Act No.
1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto,
knowingly, willfully and by over acts joined and/or remained as a
 member and became an officer and/or ranking leader not only of the
Communist Party of the Philippines but also of the New People's Army,
the military arm of the Communist Party of the Philippines; and that all
the above-named accused, as such officers and/or ranking leaders of
the aforestated subversive organizations, conspiring, confederating and
mutually helping one another, did then and there knowingly, willfully and
feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and
tumultuously and take up arms against the government, and/or engage
in rebellious conspiracies and riots to overthrow the government of the
Republic of the Philippines by force, violence, deceit, subversion and/or
other illegal means among which are the following:
1. On several occasions within the province of Tarlac, the accused
conducted meetings and/or seminars wherein the said accused
delivered speeches instigating and inciting the people to unite, rise in
arms and overthrow the Government of the Republic of the Philippines,
by force, violence, deceit, subversion and/or other illegal means; and
toward this end, the said accused organized, among others a chapter of
the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the
avowed purpose of undertaking or promoting an armed revolution,
subversive and/or seditious propaganda, conspiracies, and/or riots
and/or other illegal means to discredit and overthrow the Government
of the Republic of the Philippines and to established in the Philippines a
Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with
FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above
subversive and/or seditious activities in San Pablo City by recruiting
members for the New People's Army, and/or by instigating and inciting
the people to organize and unite for the purpose of overthrowing the
Government of the Republic of the Philippines through armed revolution,
deceit, subversion and/or other illegal means, and establishing in the
Philippines a Communist Government.
That the following aggravating circumstances attended the commission
of the offense: (a) aid of armed men or persons to insure or afford
impunity; and (b) craft, fraud, or disguise was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the
grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject
not expressed in the title thereof; and (4) it denied him the equal protection of the laws.
104
Resolving the constitutional issues raised, the trial court, in its resolution of September 15,
1970, declared the statute void on the grounds that it is a bill of attainder and that it is
vague and overboard, and dismissed the informations against the two accused. The
Government appealed. We resolved to treat its appeal as a special civil action
for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port
facto law shall be enacted."2 A bill of attainder is a legislative act which inflicts punishment
without trial.3 Its essence is the substitution of a legislative for a judicial determination of
guilt.4 The constitutional ban against bills of attainder serves to implement the principle of
separation of powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function.7 History
in perspective, bills of attainder were employed to suppress unpopular causes and political
minorities, 8 and it is against this evil that the constitutional prohibition is directed. The
singling out of a definite class, the imposition of a burden on it, and a legislative intent,
suffice to stigmatizea statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of
attainder because it "tars and feathers" the Communist Party of the Philippines as a
"continuing menace to the freedom and security of the country; its existence, a 'clear,
present and grave danger to the security of the Philippines.'" By means of the Act, the trial
court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy
by pronouncing the guilt of the CCP without any of the forms or safeguards of judicial trial."
Finally, according to the trial court, "if the only issue [to be determined] is whether or not the
accused is a knowing and voluntary member, the law is still a bill of attainder because it
has expressly created a presumption of organizational guilt which the accused can never
hope to overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it does not specify the
Communist Party of the Philippines or the members thereof for the purpose of punishment.
What it does is simply to declare the Party to be an organized conspiracy for the overthrow
of the Government for the purposes of the prohibition, stated in section 4, against
membership in the outlawed organization. The term "Communist Party of the Philippines"
issued solely for definitional purposes. In fact the Act applies not only to the Communist
Party of the Philippines but also to "any other organization having the same purpose and
their successors." Its focus is not on individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-
Management Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to
be a bill of attainder and therefore unconstitutional. Section 504 provided in its pertinent
parts as follows:
 (a) No person who is or has been a member of the Communist
Party ... shall serve —
(1) as an officer, director, trustee, member of any executive board or
similar governing body, business agent, manager, organizer, or other
employee (other than as an employee performing exclusively clerical or
custodial duties) of any labor organization.
during or for five years after the termination of his membership in the
Communist Party....
(b) Any person who willfully violates this section shall be fined not more
than $10,000 or imprisoned for not more than one year, or both.
This statute specified the Communist Party, and imposes disability and penalties on its
members. Membership in the Party, without more, ipso facto disqualifies a person from
becoming an officer or a member of the governing body of any labor organization. As the
Supreme Court of the United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor Management
Reporting and Disclosure Act plainly constitutes a bill of attainder.
Congress undoubtedly possesses power under the Commerce Clause to
enact legislation designed to keep from positions affecting interstate
commerce persons who may use of such positions to bring about
political strikes. In section 504, however, Congress has exceeded the
authority granted it by the Constitution. The statute does not set forth a
generally applicable rule decreeing that any person who commits
certain acts or possesses certain characteristics (acts and characteristics
which, in Congress' view, make them likely to initiate political strikes) shall
not hold union office, and leaves to courts and juries the job of deciding
what persons have committed the specified acts or possessed the
specified characteristics. Instead, it designates in no uncertain terms the
persons who possess the feared characteristics and therefore cannot
hold union office without incurring criminal liability — members of the
Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed
2d 625, 81 S CT 1357, lend a support to our conclusion. That case
involved an appeal from an order by the Control Board ordering the
Communist Party to register as a "Communist-action organization," under
the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec.
781 et seq. (1958 ed). The definition of "Communist-action organization"
which the Board is to apply is set forth in sec. 3 of the Act:
105
[A]ny organization in the United States ... which (i)is substantially directed,
dominated, or controlled by the foreign government or foreign
organization controlling the world Communist movement referred to in
section 2 of this title, and(ii) operates primarily to advance the objectives
of such world Communist movement... 64 Stat 989, 50 USC sec. 782 (1958
ed.)
A majority of the Court rejected the argument that the Act was a bill of
attainder, reasoning that sec. 3 does not specify the persons or groups
upon which the deprivations setforth in the Act are to be imposed, but
instead sets forth a general definition. Although the Board has
determined in 1953 that the Communist Party was a "Communist-action
organization," the Court found the statutory definition not to be so
narrow as to insure that the Party would always come within it:
In this proceeding the Board had found, and the Court of Appeals has
sustained its conclusion, that the Communist Party, by virtud of the
activities in which it now engages, comes within the terms of the Act. If
the Party should at anytime choose to abandon these activities, after it is
once registered pursuant to sec. 7, the Act provides adequate means of
relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to
charge Communists in court, as the law alone, without more, would suffice to secure their
punishment. But the undeniable fact is that their guilt still has to be judicially established. The
Government has yet to prove at the trial that the accused joined the Party knowingly,
willfully and by overt acts, and that they joined the Party, knowing its subversive character
and with specific intent to further its basic objective, i.e., to overthrow the existing
Government by force deceit, and other illegal means and place the country under the
control and domination of a foreign power.
As to the claim that under the statute organizationl guilt is nonetheless imputed despite the
requirement of proof of knowing membership in the Party, suffice it to say that is precisely
the nature of conspiracy, which has been referred to as a "dragneet device" whereby all
who participate in the criminal covenant are liable. The contention would be correct if the
statute were construed as punishing mere membership devoid of any specific intent to
further the unlawful goals of the Party. 13 But the statute specifically required that
membership must be knowing or active, with specific intent to further the illegal objectives
of the Party. That is what section 4 means when it requires that membership, to be unlawful,
must be shown to have been acquired "knowingly, willfully and by overt acts." 14 The
ingredient of specific intent to pursue the unlawful goals of the Party must be shown by
"overt acts." 15 This constitutes an element of "membership" distinct from the ingredient of
guilty knowledge. The former requires proof of direct participation in the organization's
unlawful activities, while the latter requires proof of mere adherence to the organization's
illegal objectives.
2. Even assuming, however, that the Act specifies individuals and not activities, this feature
is not enough to render it a bill of attainder. A statute prohibiting partners or employees of
securities underwriting firms from serving as officers or employees of national banks on the
basis of a legislative finding that the persons mentioned would be subject to the temptation
to commit acts deemed inimical to the national economy, has been declared not to be a
bill of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a
membership of at least twenty to register, and punishing any person who becomes a
member of such society which fails to register or remains a member thereof, was declared
valid even if in its operation it was shown to apply only to the members of the Ku Klux
Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor
unions to file with the Department of Labor affidavits of union officers "to the effect that
they are not members of the Communist Party and that they are not members of any
organization which teaches the overthrow of the Government by force or by any illegal or
unconstitutional method," was upheld by this Court. 19
Indeed, it is only when a statute applies either to named individuals or to easily
ascertainable members of a group in such a way as to inflict punishment on them without a
judicial trial does it become a bill of attainder. 20 It is upon this ground that statutes which
disqualified those who had taken part in the rebellion against the Government of the
United States during the Civil War from holding office, 21 or from exercising their
profession, 22 or which prohibited the payment of further compensation to individuals
named in the Act on the basis of a finding that they had engages in subversive
activities, 23 or which made it a crime for a member of the Communist Party to serve as an
officer or employee of a labor union, 24 have been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally acknowledged to be certain
as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing
is not needed fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring
every secret, oath-bound society with a membership of at least twenty to register, and
punishing any person who joined or remained a member of such a society failing to
register. While the statute did not specify the Ku Klux Klan, in its operation the law applied to
the KKK exclusively. In sustaining the statute against the claim that it discriminated against
the Ku Klux Klan while exempting other secret, oath-bound organizations like masonic
societies and the Knights of Columbus, the United States Supreme Court relied on common
knowledge of the nature and activities of the Ku Klux Klan. The Court said:
106
The courts below recognized the principle shown in the cases just cited
and reached the conclusion that the classification was justified by a
difference between the two classes of associations shown by
experience, and that the difference consisted (a) in a manifest
tendency on the part of one class to make the secrecy surrounding its
purpose and membership a cloak for acts and conduct inimical to
personal rights and public welfare, and (b) in the absence of such a
tendency on the part of the other class. In pointing out this difference
one of the courts said of the Ku Klux Klan, the principal association in the
included class: "It is a matter of common knowledge that this
organization functions largely at night, its members disguised by hoods
and gowns and doing things calculated to strike terror into the minds of
the people;" and later said of the other class: "These organizations and
their purposes are well known, many of them having been in existence
for many years. Many of them are oath-bound and secret. But we hear
no complaint against them regarding violation of the peace or
interfering with the rights of others." Another of the courts said: "It is a
matter of common knowledge that the association or organization of
which the relator is concededly a member exercises activities tending to
the prejudice and intimidation of sundry classes of our citizens. But the
legislation is not confined to this society;" and later said of the other class:
"Labor unions have a recognized lawful purpose. The benevolent orders
mentioned in the Benevolent Orders Law have already received
legislative scrutiny and have been granted special privileges so that the
legislature may well consider them beneficial rather than harmful
agencies." The third court, after recognizing "the potentialities of evil in
secret societies," and observing that "the danger of certain organizations
has been judicially demonstrated," — meaning in that state, — said:
"Benevolent orders, labor unions and college fraternities have existed for
many years, and, while not immune from hostile criticism, have on the
whole justified their existence."
We assume that the legislature had before it such information as was
readily available including the published report of a hearing, before a
committee of the House of Representatives of the 57th Congress relating
to the formation, purposes and activities of the Klu Klux Klan. If so it was
advised — putting aside controverted evidence — that the order was a
revival of the Ku Klux Klan of an earlier time with additional features
borrowed from the Know Nothing and the A. P. A. orders of other
 periods; that its memberships was limited to native-born, gentile,
protestant whites; that in part of its constitution and printed creed it
proclaimed the widest freedom for all and full adherence to the
Constitution of the United States; in another exacted of its member an
oath to shield and preserve "white supremacy;" and in still another
declared any person actively opposing its principles to be "a dangerous
ingredient in the body politic of our country and an enemy to the weal
of our national commonwealth;" that it was conducting a crusade
against Catholics, Jews, and Negroes, and stimulating hurtful religious
and race prejudices; that it was striving for political power and assuming
a sort of guardianship over the administration of local, state and national
affairs; and that at times it was taking into its own hands the punishment
of what some of its members conceived to be crimes. 27
In the Philippines the character of the Communist Party has been the object of continuing
scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an
illegal association. 28 In 1969 we again found that the objective of the Party was the
"overthrow of the Philippine Government by armed struggle and to establish in the
Philippines a communist form of government similar to that of Soviet Russia and Red
China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the Communist
Party of the Philippines and the organization of Communist fronts among youth
organizations such as the Kabataang Makabayan (KM) and the emergence of the New
People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore,
no doubts about the existence of a sizeable group of men who have publicly risen in arms
to overthrow the government and have thus been and still are engaged in rebellion
against the Government of the Philippines.
3. Nor is it enough that the statute specify persons or groups in order that it may fall within
the ambit of the prohibition against bills of attainder. It is also necessary that it must apply
retroactively and reach past conduct. This requirement follows from the nature of a bill of
attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a
bill of attainder was ... doubly objectionable because of its ex post facto features. This is the
historic explanation for uniting the two mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute]
is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the
reasons that establish that it is not are persuasive that it cannot be a bill of attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of
the Charter of the City of Los Angeles which provided:
... [N]o person shall hold or retain or be eligible for any public office or
employment in the service of the City of Los Angeles, in any office or
107
department thereof, either elective or appointive, who has within five (5)
years prior to the effective date of this section advised, advocated, or
taught, or who may, after this section becomes effective, become a
member of or affiliated with any group, society, association, organization
or party which advises, advocates or teaches or has within said period of
five (5) years advised, advocated, or taught the overthrow by force or
violence of the Government of the United States of America or of the
State of California.
In upholding the statute, the Court stressed the prospective application of the Act to the
petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter
provision insofar as it purported to apply restrospectively for a five-year
period to its effective date. We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it bars
from the city's public service persons who, subsequently to its adoption in
1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group doing so.
The provisions operating thus prospectively were a reasonable regulation
to protect the municipal service by establishing an employment
qualification of loyalty to the State and the United States.
... Unlike the provisions of the charter and ordinance under which
petitioners were removed, the statute in the Lovett case did not declare
general and prospectively operative standards of qualification and
eligibility for public employment. Rather, by its terms it prohibited any
further payment of compensationto named individuals or employees.
Under these circumstances, viewed against the legislative background,
the statutewas held to have imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial
magistracy, them it mustbe demonstrated that the statute claimed to be a bill of
attainderreaches past conduct and that the penalties it imposesare inescapable. As the
U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities
ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact
that the conduct which it regulates is describedwith such particularity
that, in probability, few organizationswill come within the statutory terms.
Legislatures may act tocurb behaviour which they regard as harmful to
the public welfare,whether that conduct is found to be engaged in by
manypersons or by one. So long as the incidence of legislation issuch
 that the persons who engage in the regulated conduct, bethey many or
few, can escape regulation merely by altering thecourse of their own
present activities, there can be no complaintof an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof
expressly statesthat the prohibition therein applies only to acts committed"After the
approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate
themselves with,become or remain members of the Communist Party of thePhilippines
and/or its successors or of any subversive association"after June 20, 1957, are punished.
Those whowere members of the Party or of any other subversive associationat the time of
the enactment of the law, weregiven the opportunity of purging themselves of liability
byrenouncing in writing and under oath their membershipin the Party. The law expressly
provides that such renunciationshall operate to exempt such persons from
penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the Act that the Communist
Party of the Philippinesis an organized conspiracy for the overthrow of theGovernment is
inteded not to provide the basis for a legislativefinding of guilt of the members of the Party
butrather to justify the proscription spelled out in section 4. Freedom of expression and
freedom of association are sofundamental that they are thought by some to occupy
a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation
on their exercise mustbe justified by the existence of a substantive evil. This isthe reason why
before enacting the statute in question Congressconducted careful investigations and then
stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a
political party, is in fact an organized conspiracyto overthrow the
Government of the Republic of the Philippinesnot only by force and
violence but also by deceit, subversionand other illegal means, for the
purpose of establishing in thePhilippines a totalitarian regime subject to
alien dominationand control;
... [T]he continued existence and activities of the CommunistParty of the
Philippines constitutes a clear, present andgrave danger to the security
of the Philippines;
... [I]n the face of the organized, systematice and persistentsubversion,
national in scope but international in direction,posed by the Communist
Party of the Philippines and its activities,there is urgent need for special
legislation to cope withthis continuing menace to the freedom and
security of the country.
108
In truth, the constitutionality of the Act would be opento question if, instead of making
these findings in enactingthe statute, Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial magistracy, the trial
courd failed to takeproper account of the distinction between legislative
fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2 per
cent of alcohol would raise a question of legislativefact, i.e., whether this
standard has a reasonable relationto public health, morals, and the
enforcement problem. Alaw forbidding the sale of intoxicating
beverages (assuming itis not so vague as to require supplementation by
rule-making)would raise a question of adjudicative fact, i.e., whether
thisor that beverage is intoxicating within the meaning of the statuteand
the limits on governmental action imposed by the Constitution. Of course
what we mean by fact in each case is itselfan ultimate conclusion
founded on underlying facts and oncriteria of judgment for weighing
them.
A conventional formulation is that legislative facts — those facts which
are relevant to the legislative judgment — will not be canvassed save to
determine whether there is a rationalbasis for believing that they exist,
while adjudicativefacts — those which tie the legislative enactment to
the litigant — are to be demonstrated and found according to the
ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs.
Garcia, 38 is that 'if laws are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a court functus officio." The
recital of legislative findings implements this test.
With respect to a similar statement of legislative findingsin the U.S. Federal Subversive
Activities Control Actof 1950 (that "Communist-action organizations" are controlledby the
foreign government controlling the worldCommunist movement and that they operate
primarily to"advance the objectives of such world Communist movement"),the U.S.
Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative findings
and reject them....They are the productof extensive investigation by
Committes of Congress over morethan a decade and a half. Cf. Nebbia
v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as
unfoundedirrational imaginings. ... And if we accept them, as we mustas
a not unentertainable appraisal by Congress of the threatwhich
 Communist organizations pose not only to existing governmentin the
United States, but to the United States as asovereign, independent
Nation. ...we must recognize that thepower of Congress to regulate
Communist organizations of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings articulated in the
Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion is a proposition too plain
to require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and
transcendes every other value, "forif a society cannot protect its very structure from
armedinternal attack, ...no subordinate value can be protected" 40 As Chief Justice Vinson
so aptly said in Dennis vs. United States: 41
Whatever theoretical merit there may be to the argumentthat there is a
'right' to rebellion against dictatorial governmentsis without force where
the existing structure of government provides for peaceful and orderly
change. We rejectany principle of governmental helplessness in the face
of preparationfor revolution, which principle, carried to its logical
conclusion,must lead to anarchy. No one could conceive that it isnot
within the power of Congress to prohibit acts intended tooverthrow the
government by force and violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4
thereof), Congressreaffirmed its respect for the rule that "even throughthe governmental
purpose be legitimate and substantial,that purpose cannot be pursued by means that
broadly stiflefundamental personal liberties when the end can be more narrowly
achieved." 42 The requirement of knowing membership,as distinguished
from nominal membership, hasbeen held as a sufficient basis for penalizing membershipin a
subversive organization. 43 For, as has been stated:
Membership in an organization renders aid and encouragement to the
organization; and when membership is acceptedor retained with
knowledge that the organization is engaged inan unlawful purpose, the
one accepting or retaining membershipwith such knowledge makes
himself a party to the unlawfulenterprise in which it is engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely
speaks of "overthrow"of the Government and overthrow may be achieved
by peaceful means, misconceives the function of the phrase"knowingly, willfully and by
overt acts" in section 4. Section 2 is merely a legislative declaration; the definitionsof and
the penalties prescribed for the different acts prescribedare stated in section 4 which
requires that membershipin the Communist Party of the Philippines, to be unlawful, must be
109
acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes
clear thatthe overthrow contemplated is "overthrow not only by forceand violence but also
be deceit, subversion and other illegalmeans." The absence of this qualificatio in section 2
appearsto be due more to an oversight rather than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal
means. Only in a metaphoricalsense may one speak of peaceful overthrow
ofgovernments, and certainly the law does not speak in metaphors.In the case of the Anti-
Subversion Act, the use ofthe word "overthrow" in a metaphorical sense is hardlyconsistent
with the clearly delineated objective of the "overthrow,"namely, "establishing in the
Philippines a totalitarianregime and place [sic] the Government under thecontrol and
domination of an alien power." What thisCourt once said in a prosecution for sedition
is appropos: "The language used by the appellant clearly imported anoverthrow of the
Government by violence, and it should beinterpreted in the plain and obvious sense in
which it wasevidently intended to be understood. The word 'overthrow'could not have
been intended as referring to an ordinarychange by the exercise of the elective franchise.
The useof the whip [which the accused exhorted his audience to useagainst the
Constabulary], an instrument designed toleave marks on the sides of adversaries, is
inconsistentwith the mild interpretation which the appellant wouldhave us impute to the
language." 45
IV. The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to overthrow the
Government by force, violence orother illegal means. Whatever interest in freedom of
speechand freedom of association is infringed by the prohibitionagainst knowing
membership in the Communist Party ofthe Philippines, is so indirect and so insubstantial as to
beclearly and heavily outweighed by the overriding considerationsof national security and
the preservartion of democraticinstitutions in his country.
The membership clause of the U.S. Federal Smith Actis similar in many respects to the
membership provision ofthe Anti-Subversion Act. The former provides:
Whoever organizes or helps or attempts to organize anysociety, group, or
assembly of persons who teach, advocate, orencourage the overthrow
or destruction of any such governmentby force or violence; or becomes
or is a member of, or affiliatedwith, any such society, group or assembly
of persons, knowingthe purpose thereof —
Shall be fined not more than $20,000 or imprisoned notmore than twenty
years, or both, and shall be ineligible for emplymentby the United States
or any department or agencythereof, for the five years next following his
conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47
 It was settled in Dennis that advocacy with which we arehere
concerned is not constitutionally protected speech, and itwas further
established that a combination to promote suchadvocacy, albeit under
the aegis of what purports to be a politicalparty, is not such association
as is protected by the firstAmendment. We can discern no reason why
membership, whenit constitutes a purposeful form of complicity in a
group engagingin this same forbidden advocacy, should receive
anygreater degree of protection from the guarantees of that
Amendment.
Moreover, as was held in another case, where the problemsof accommodating the
exigencies of self-preservationand the values of liberty are as complex and intricate as
inthe situation described in the legislative findings stated inthe U.S. Federal Subversive
Activities Control Act of 1950,the legislative judgment as to how that threat may best
bemet consistently with the safeguards of personal freedomsis not to be set aside merely
because the judgment of judgeswould, in the first instance, have chosen other
methods. 48 For in truth, legislation, "whether it restrains freedom tohire or freedom to speak,
is itself an effort at compromisebetween the claims of the social order and individual
freedom,and when the legislative compromise in either case isbrought to the judicial test
the court stands one step removedfrom the conflict and its resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no bill which may be
enacted into law shall embrace more than one subject which shall be expressed in the title
of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of
section 4 which reads:
And provided, finally, That one who conspires with anyother person to
overthrow the Government of the Republic ofthe Philippines, or the
government of any of its political subdivisionsby force, violence, deceit,
subversion or illegal means,for the purpose of placing such Government
or political subdivisionunder the control and domination of any lien
power, shallbe punished by prision correccional to prision mayor with
allthe accessory penalties provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly membership in the Communist
Party of the Philippinesor similar associations, but as well "any conspiracyby two persons to
overthrow the national or any local governmentby illegal means, even if their intent is not to
establisha totalitarian regime, burt a democratic regime, evenif their purpose is not to
place the nation under an aliencommunist power, but under an alien democratic power
110
likethe United States or England or Malaysia or even an anti-communistpower like Spain,
Japan, Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the
Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"),
has a short title. Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally
indicates that the subject matter is subversionin general which has for its fundamental
purpose the substitutionof a foreign totalitarian regime in place of theexisting Government
and not merely subversion by Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents, and need not recite
the details of the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature,
scope, and consequences of the proposed lawand its operation. 52 A narrow or technical
construction isto be avoided, and the statute will be read fairly and reasonablyin order not
to thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these
requirements.
VI. Conclusion and Guidelines
In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot
overemphasize the needfor prudence and circumspection in its enforcement, operatingas
it does in the sensitive area of freedom of expressionand belief. Accordingly, we set the
following basic guidelines to be observed in any prosecution under the Act.The
Government, in addition to proving such circumstancesas may affect liability, must
establish the following elementsof the crime of joining the Communist Party of the
Philippinesor any other subversive association:
(1) In the case of subversive organizations other thanthe Communist Party of the Philippines,
(a) that thepurpose of the organization is to overthrow the presentGovernment of the
Philippines and to establish in thiscountry a totalitarian regime under the domination of
aforeign power; (b) that the accused joined such organization;and (c) that he did so
knowingly, willfully and byovert acts; and
(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to
pursue the objectiveswhich led Congress in 1957 to declare it to be an
organizedconspiracy for the overthrow of the Government by illegalmeans for the purpose
of placing the country under thecontrol of a foreign power; (b) that the accused joined
theCPP; and (c) that he did so willfully, knowingly and byovert acts.
We refrain from making any pronouncement as to thecrime or remaining a member of the
Communist Party ofthe Philippines or of any other subversive association: weleave this
matter to future determination.
ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two
cases are herebyremanded to the court a quo for trial on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.
Concepcion, C.J., concurs in the result.
Makasiar and Antonio, JJ., took no part.
Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join therest of my brethren in the decision
reached upholding thevalidity of the Anti-Subversion Act.1 It is to be admittedthat the
learned and scholarly opinbion of Justice Castro hasthe impress of conscientious and
painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the
concluding portion thereof on basic guidelines thatwill assure in the trial of those
prosecuted under suchAct respect for their constitutional rights is to be
commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of
attainder clause2 coupled withthe fears, perhaps induced by a too-latitudinarian
constructionof the guarantees of freedom of belief and expression3 as well as freedom of
association as to impermissible inroadsto which they may be exposed, compels a
4 framers.They are Cummings v. Missouri 6 and Ex parte Garland. 7 They speak unequivocally.
differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing concern of state safety
and security shouldbe ignored. The political branches of the governmentwould lay
themselves oepn to a justifiable indictment fornegligence had they been remiss in their
obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the
overthrow of the government wasusually through the rising up in arms, with weapons farless
sophisticated than those now in existence, there wasno constitutional issue of the
magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that.
Advances in science as well as more subtlemethods of inducing disloyalty and weakening
the senseof allegiance have introduced complexities in coping withsuch problems. There
must be then, and I am the firstto recognize it, a greater understanding for the
governmentalresponde to situations of that character. It is inthat light that the validity of the
Anti-Subversion Act isto be appraised. From ny standpoint, and I am not
presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel
that there was an insufficientappreciation of the compulsion of the
constitutionalcommands against bills of attainder and abridgmentof free speech. I am
comforted by the thought that evenhad my view prevailed, all that it would mean is that
anew legislation, more in comformity to my way of thinkingto what is ordained by the
fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat
a setback would be occasioned to legitilate state effortsto stem the tide of subversive
activities, in whateverform manifested.
111
2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the
meaning attachedto it by the Constitutional Convention of 1934 and by the people who
adopted it. As was explained by the then Delegate, later Justice, Jose P. Laurel in his
address on November19, 1934 as Chairman of the Committee on the Bill of Rights quoted in
the opinion of the Court: "A billof attainder is a legislative act which inflicts punishment
without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill
of Attainder was an act of Parliament by which a man was tried, convictedand sentenced
to death without a jury, without ahearing in court, without hearing the witnesses againsthim
and without regard to the rules of evidence. His bloodwas attainted or corrupted,
rendering him devoid of allheritable quality — of acquiring and disposing property
bydescent. (Ex parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than
death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post
facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas
Jefferson was includedin a bill of attainder presented to Parliament becauseof his reform
activities."5 Two American SupremeCourt decision were thus in the minds of the
Legislative acts, no matter whattheir form, that apply either to named individuals or
easilyascertainable members of a group in such a way as to inflicton them punishment
amounting to a deprivation ofany right, civil or political, without judicial trial are billsof
attainder prohibited by the Constitution. 8
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the
loyalty oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision,
lawyers, doctors, ministers, and otherprofessionals must disavow that they had ever, "by act
orword," manifested a "desire" for the success of the nation'senemies or a sympathy" with
the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they
engaged in their professions without theoath, they were criminally liable. The United States
Supreme Court condemned the provision as a bill of attainder,identified as any legislative
act inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical,
previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable
was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which
inflicts punishment without a judicialtrial. If the punishment be less than death, the actis
termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder
include bills ofpains and penalties. In these cases the legislative body, inaddition to its
legitimate functions, exercises the powersand office of judge; it assumes, in the language
of thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any
of the forms or safeguardsof trial; it determines the sufficiency of the proofs
produced,whether conformable to the rules of evidence orotherwise; and it fixes the
degree of punishment in accordancewith its own notions of the enormity of the offense. ...
If the clauses of the 2d article of the Constitutionof Missouri, to which we have referred, had
in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having been in
armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled
or drafted into the military service of the UnitedStates, and, therefore, should be deprived
of the right topreach as a priest of the Catholic church, or to teach inany institution of
learning, there could be no question thatthe clauses would constitute a bill of attainder
within themeaning of the Federal Constitution. If these clauses, insteadof mentioning his
name, had declared that all priestsand clergymen within the state of Missouri were guiltyof
these acts, or should be held guilty of them, and hencebe subjected to the like deprivation,
the clause would beequally open to objection. And further, it these clauseshad declared
that all such priests and clergymen shouldbe so held guilty, and be thus deprived, provided
they didnot, by a day designated, do certain specified acts, theywould be no less within
the inhibition of the Federal Constitution.In all these cases there would be the
legislativeenactment creating the deprivation, without any of theordinary forms and guards
provided for the security ofthe citizen in the administration of justice by the
establishedtribunales." 10
On the very same day that the ruling in Cummings washanded down, Ex
parte Garland 11 was also decided. Thatwas a motion for leave to practrice as an attorney
beforethe American Supreme Court. Petitioner Garland wasadmitted to such bar at the
December term of 1860. Underthe previous rules of such Court, all that was necessarywas
that the applicant have three years practice in the statecourts to which he belonged. In
March 1865, the rule waschanged by the addition of a clause requiring that an oathbe
taken under the Congressional acts of 1862 and 1865to the effect that such candidate for
admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner
Garland could not in conscience subscribeto such an oath, but he was able to show a
presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that
he be allowed to continue inpractice contending that the test oath requirement
wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same
ruling was announced by theCourt again through Justice Field. Thus: "In the exclusionwhich
the statute adjudges, it imposes a punishmentfor some of the acts specified which were not
punishableat the time they were committedl; and for other of the actsit adds a new
punishment to that before prescribed, andit is thus brought within the further inhibition of
the Consitutionagainst the passage of an ex post facto law. Inthe case of Cummings v.
Missouri, just decided, ... wehave had occasion to consider at length the meaning of abill
of attainder and of an ex post facto law in the clauseof the Constitution forbidding their
passage by the states,and it is unnecessary to repeat here what we there said.A like
prohibition is contained in the Constitution againstenactments of this kind by Congress; and
112
the argumentpresented in that case against certain clauses of the Constitutionof Missouri is
equally applicable to the act ofCongress under consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in United States v.
Lovett, 13 decided in 1946.There it was shown that in 1943 the respondents, Lovett,Watson,
and Dodd, were and had been for several yearsworking for the government. The
government agencies,which had lawfully employed them, were fully satisfiedwith the
quality of their work and wished to keep thememployed on their jobs. Over their protest,
Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by
way of an amendment attached to theHouse Bill, that after November 15, 1943, no salary
orcompensation should be paid respondent out of any moneythen or thereafter
appropriated except for services as jurorsor members of the armed forces, unless they
wereprior to November 15, 1943, again appointed to jobs bythe President with the advide
and consent of the Senate.Notwithstanding such Congressional enactment, and thefailure
of the President to reappoint the respondents, theagencies, kept all the respondents at
work on their jobs forvarying periods after November 15, 1943, but their compensationwas
discontinued after that date. Respondentsbrought this action in the Court of Claims for the
salariesto which they felt entitled. The Ameican Supreme Courtstated that its inquiry was
thus confined to whether theaction in the light of proper construction of the Act
presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder
insofar as the respondents wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion
by Justice Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the
category of Congressional actionswhich the Constitution barred by providing that 'No Billof
Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this Court said,
'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the
punishment be lessthan death, the act is termed a bill of pains and penalties.Within the
meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ... On the
sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid
on the same grounds anAct of Congress which required attorneys practicing beforethis
Court to take a similar oath. Neither of thesecases has ever been overruled. They stand for
the propositionthat legislative acts, no matter what their form,that apply either to named
individuals or to easily ascertainablemembers of a group in such a way as to
inflictpunishment on them without a judicial trial are billsof attainder prohibited by the
Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere
to it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the
Labor-ManagementReporting and Disclosure Act of 1959, making it a crimefor a member
of the Communist Party to serve as anofficer ir, except in clerical or custodial positions,
anemployee of a labor union. Respondent Brown, a longshoremanon the San Francisco
docks, and an open andavowed Communist, for more than a quarter of a centurywas
elected to the Executive Board of Local 10 of theInternational Longshoremen's and
Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24,
1961, respondent was charged in a one-countindictment returned in a district court of
California withservicing as a member of an executive board of a labororganization while a
member of the Communist Party, inwillful violation of the above provision. The question ofits
validity under the bill of attainder clause was thusproperly raised for adjudication. While
convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was
sustained by the American SupremeCourt. As noted in the opinion by Chief Justice
Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of attainder
indicates that the properscope of the Bill of Attainder Clause, and its relevance
tocontemporary problems, must ultimately be sought by attemptingto discern the reasons
for its inclusion in theConstitution, and the evils it was desinged to eliminate.The best
available evidence, the writings of the architectsof our constitutional system, indicates that
the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore soon to be
outmoded) prohibition, but ratheras an implementation of the separation of powers,
ageneral safeguard against legislative exercise of the judicialfunction, or more simply —
trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice
Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management
Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly
possesses power under theCommerce Clause to enact legislation designed to keepfrom
positions affecting interstate commerce persons whomay use such positions to bring about
political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the
Constitution. The statute does not setforth a generally applicable rule decreeing that any
personwho commits certain acts or possesses certain characteristics (acts and
characteristics whhich, in Congress'view, make them likely to initiate political strikes) shallnot
hold union office, and leave to courts and juries thejob of deciding what persons have
committed the specifiedacts or possessed the specified characteristics. Instead,it
designates in no uncertain terms the personswho possess the fearec characteristics and
therefore cannothold union office without incurring criminal liability — members of the
Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the
Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States
to register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the Cummingsprinciple. Had the American
Communist Party been outlawed,the outcome certainly would have been different.Thus:
"The Act is not a bill of attainder. It attaches notto specified organizations but to described
113
activities inwhich an organization may or may not engage. The singlingout of an individual
for legislatively prescribed punishmentconstitutes an attainder whether the individualis
called by name or described in terms of conduct which,because it is past conduct,
operates only as a designationof particular persons. ... The Subversive Activities ControlAct
is not of that king. It requires the registrationonly of organizations which, after the date of
the Act,are found to be under the direction, domination, or controlof certain foreign
powers and to operate primarily toadvance certain objectives. This finding must be
madeafter full administrative hearing, subject to judicial reviewwhich opens the record for
the reviewing court'sdetermination whether the administrative findings as tofact are
supported by the preponderance of the evidence.Present activity constitutes an operative
element to whichthe statute attaches legal consequences, not merely a pointof reference
for the ascertainment of particularly personsineluctably designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive considering what appeared
to be in the mindsof the framers of the 1934 Constitutional Conventionyields for me the
conclusion that the Anti-SubversionAct falls within the ban of the bill of attainder clause.
Itshould be noted that three subsequent cases upholding theCummings and Garland
doctrine were likewise cited in theopinion of the Court. The interpretation accorded to
themby my brethren is, of course, different but I am unable togo along with them especially
in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the
qualification that for them could deprive such aholding of its explicit character as shown by
this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of
attainder it would be totally unnecessaryto charge communists in court, as the law
alone,without more, would suffice to secure their conviction andpunishment. But the fact is
that their guilt still has to bejudicially estblished. The Government has yet to proveat the trial
that the accused joined the Party knowingly,willfully and by overt acts, and that they joined
the Partyknowing its subversive character and with specific intentto further its objective, i.e.,
to overthrow the existing Governmentby force, deceit, and other illegal means and placeit
under the control and domination of a foreign power. 20While not implausible, I find
difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe
Catholic priest who refused to take the loyalty oath.Again in Brown, there was an
indictment of the laborleader who, judging by his membership in the CommunistParty, did
transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If
the constructionI would place on theoff-repeated pronouncementof the American
Supreme Court is correct, then the merefact that a criminal case would have to be
instituted wouldnot save the statute. It does seem clear to me that fromthe very title of the
Anti-Subversion Act, "to outlaw the Communist Party of the Philippines and similar
associations,"not to mention other specific provisions, the taintof invalidity is quite marked.
Hence, my inability to concurin the judgment reached as the statute not suffering fromany
fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder.
3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the
intellectual libertysafeguarded by the Constitution in terms of the free speechand free
assocition guarantees. 21 It is to be admitted thatat the time of the enactment of Republic
Act No. 1700,the threat that Communism, the Russian brand then, didpose was a painful
reality for Congressional leaders andthe then President. Its shadow fell squarely across
thelives of all. Subversion then could neither be denied notdisparaged. There was, in the
expert opinion of those conversantwith such mattes, a danger to out national existenceof
no mean character. Nonetheless, the remedies toward off such menace must not be
repugnant to our Constitution.We are legally precluded from acting in anyother way. The
apprehension justly felt is no warrant forthrowing to the discard fundamental guarantees.
Vigilantwe had to be, but not at the expense of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the right to dissent. One
can differ, evenobject; one can express dissatisfaction with things as theyare. There are
timew when one not only can but must.Such dissent can take the form of the most critical
andthe most disparaging remarks. They may give offense tothose in authority, to those who
wield powe and influence.Nevertheless, they are entitled to constitutional
protection.Insofar as the content of such dissent is concerned, thelimits are hardly
discernible. It cannot be confined totrivial matters or to such as are devoid of too much
significance.It can reach the heart of things. Such dissentmay, for those not so adventurous
in the realm of ideas,possess a subversive tinge. Even those who oppose a democraticform
of government cannot be silenced. This is trueespecially in centers of learning where
scholars competentin their line may, as a result of their studies, assert thata future is bleak
for the system of government now favoredby Western democracies. There may be doubts
entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen may do so without fear thatthereby he
incurs the risk of a penal sanction. That ismerely to affirm the truth of this ringing declaration
fromJefferson: "If there be any among us who would wish todissolve this union or to change
its republican form, letthem stand undisturbed as monuments of the safety withwhich error
of opinion may be tolerated where reason isleft free to combat it." 22 As was so well put by
the philosopher,Sidney Hook: "Without holding the right to theexpression of heresy at any
time and place to be absolute — for even the right to non-heretical speech cannot
beabsolute — it still seems wise to tolerate the expression evenof Communist, fascist and
other heresies, lest in outlawingthem we include other kings of heresies, and deprive
ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23
The line is to be drawn, however, where the wordsamount to an incitement to commit the
crime of seditionor rebellion. The state has been reached, to follow theformulation of
114
Cardozo, where thought merges into action.Thus is loyalty shown to the freedom of speech
or pressordained by the Constitution. It does not bar the expressionof views affecting the
very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does
not require as a matter of fact, that unorthodoxideas be freely ventilated and fully heard.
Dissent is notdisloyalty.
Such an approach is reinforced by the well-settled constitutionalprinciple "that even though
the governmental purposesbe legitimate and substantial, they cannot be pursuedby
means that broadly stifle fundamental personalliberties when the end can be more
narrowly achieved.For precision of regulation is the touchstone in an areaso closely related
to our most precious freedoms." 24 This is so for "a governmental purpose to control or
prevent activities constitutionally subject to state regulation may notbe achieved by means
which sweep unnecessarily broadlyand thereby invade the area of protected
freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute
be avoided. If such be the case, then theline dividing the valid from the constitutionally
infirm hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the
Anti-Subversion Act.
There is to my mind support for the stand I take inthe dissent of Justice Black in the
Communist Party casediscussed above. What is to be kept in view is that a
legislativemeasure certainly less drastic in its treatment ofthe admittedly serious Communist
problem was found inthe opinion of this noted jurist offensive to the FirstAmendment of the
American Constitution safeguardingfree speech. Thus: "If there is one thing certain
aboutthe First Amendment it is that this Amendment was designedto guarantee the freest
interchange of ideas aboutall public matters and that, of course, means the
interchangeof all ideas, however such ideas may be viewed inother countries and
whatever change in the existing structureof government it may be hoped that these ideas
willbring about. Now, when this country is trying to spreadthe high ideals of democracy all
over the world — ideals that are revolutionary in many countries — seems to be
aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same
arguments that areused to justify the outlawry of Communist ideas here couldbe used to
justify an outlawry of the ideas of democracyin other countries." 26 Further he stated: "I
believe with theFramers of the First Amendment that the internal securityof a nation like ours
does not and cannot be made todepend upon the use of force by Government to make
allthe beliefs and opinions of the people fit into a commonmold on any single subject. Such
enforced conformity ofthought would tend only to deprive our people of the boldspirit of
adventure and progress which has brought thisNation to its present greatness. The creation
of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a
necessary part of our democraticsociety. Such groups, like the Sons of Liberty and
theAmerican Corresponding Societies, played a large part increating sentiment in this
country that led the people ofthe Colonies to want a nation of their own. The Father ofthe
Constitution — James Madison — said, in speakingof the Sedition Act aimed at crushing the
Jefferson Party,that had that law been in effect during the period beforethe Revolution, the
United States might well have continuedto be 'miserable colonies, groaning under a foreign
yoke.'In my judgment, this country's internal security can betterbe served by depending
upon the affection of the peoplethan by attempting to instill them with fear and dreadof
the power of Government. The Communist Party hasnever been more than a small group in
this country. Andits numbers had been dwindling even before the Governmentbegan its
campaign to destroy the Party by force oflaw. This was because a vast majority of the
Americanpeople were against the Party's policies and overwhelminglyrejected its
candidates year after year. That is the trueAmerican way of securing this Nation against
dangerousideas. Of course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our Constitution which we would
bewise to follow. They gave the Government the fullest powerto prosecute overt actions in
violation of valid lawsbut withheld any power to punish people for nothing morethan
advocacy of their views." 27
With the sentiments thus expressed uppermost in mymind and congenial to my way of
thinking, I cannot sharethe conclusion reached by my breathren as to the Anti-Subversion
Act successfully meeting the test of validity onfree speech and freedom of association
grounds.
4. It could be that this approach to the constitutionalquestions involved arises from an
appraisal of the challengedstatute which for me is susceptible of an interpretationthat it
does represent a defeatist attitude on thepart of those of us, who are devotees at the
shrine of aliberal-democratic state. That certainly could not havebeen the thought of its
framers; nonetheless, such an assumptionis not devoid of plausibility for why resort tothis
extreme measure susceptible as it is to what apparentlyare not unfounded attacks on
constitutional grounds?Is this not to ignore what previously was accepted as anobvious
truth, namely that the light of liberalism sendsits shafts in many directions? It can illuminate,
and itcan win the hearts and minds of men. It if difficult forme to accept the view then that
a resort to outlawry isindispensable, that suppression is the only answer to whatis an
admitted evil. There could have been a greater exposureof the undesirability of the
communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its
inculcation of disloyalty, and its subservience tocentralized dictation that brooks no
opposition. It is thus,in a realistic sense, a manifestation of the fear of freethought and the
will to suppress it. For better, of course,is the propaganda of the deed. What the
communists promise,this government can fulfill. It is up to it then to takeremedial measures
to alleviate the condition of our countrymenwhose lives are in a condition of destitution
andmisery. It may not be able to change matters radically.At least, it should take earnest
115
steps in that direction.What is important for those at the bottom of the economicpyramid is
that they are not denied the opportunity for abetter life. If they, or at least their children,
cannot evenlook forward to that, then a constitutional regime is nothingbut a mockery and
a tragic illusion. Such a response,I am optimistic enough to believe, has the merit of
thinning,if not completely eliminating, the embattled ranksand outposts of ignorance,
fanaticism and error. That forme would be more in accordance with the basic propositionof
our polity. This is not therefore to preach a doctrine of object surrender to the forces
apparently bent on the adoption of a way of life so totally opposed to the deeply felt
traditions of our people. This is, for me at least, an affirmation of the vitality of the
democratic creed, with an expression of regret that it could not have been more
impressively set forth in language worthy of the subject.
It is in the light of the views above expressed that I find myself unable to yield concurrence
to the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-
Subversion Act.
Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join therest of my brethren in the decision
reached upholding thevalidity of the Anti-Subversion Act.1 It is to be admittedthat the
learned and scholarly opinbion of Justice Castro hasthe impress of conscientious and
painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the
concluding portion thereof on basic guidelines thatwill assure in the trial of those
prosecuted under suchAct respect for their constitutional rights is to be
commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of
attainder clause2 coupled withthe fears, perhaps induced by a too-latitudinarian
constructionof the guarantees of freedom of belief and expression3 as well as freedom of
association 4 as to impermissible inroadsto which they may be exposed, compels a
differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing concern of state safety
and security shouldbe ignored. The political branches of the governmentwould lay
themselves oepn to a justifiable indictment fornegligence had they been remiss in their
obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the
overthrow of the government wasusually through the rising up in arms, with weapons farless
sophisticated than those now in existence, there wasno constitutional issue of the
magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that.
Advances in science as well as more subtlemethods of inducing disloyalty and weakening
the senseof allegiance have introduced complexities in coping withsuch problems. There
must be then, and I am the firstto recognize it, a greater understanding for the
governmentalresponde to situations of that character. It is inthat light that the validity of the
Anti-Subversion Act isto be appraised. From ny standpoint, and I am not
presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel
that there was an insufficientappreciation of the compulsion of the
constitutionalcommands against bills of attainder and abridgmentof free speech. I am
comforted by the thought that evenhad my view prevailed, all that it would mean is that
anew legislation, more in comformity to my way of thinkingto what is ordained by the
fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat
a setback would be occasioned to legitilate state effortsto stem the tide of subversive
activities, in whateverform manifested.
2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the
meaning attachedto it by the Constitutional Convention of 1934 and by the people who
adopted it. As was explained by the then Delegate, later Justice, Jose P. Laurel in his
address on November19, 1934 as Chairman of the Committee on the Bill of Rights quoted in
the opinion of the Court: "A billof attainder is a legislative act which inflicts punishment
without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill
of Attainder was an act of Parliament by which a man was tried, convictedand sentenced
to death without a jury, without ahearing in court, without hearing the witnesses againsthim
and without regard to the rules of evidence. His bloodwas attainted or corrupted,
rendering him devoid of allheritable quality — of acquiring and disposing property
bydescent. (Ex parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than
death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post
facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas
Jefferson was includedin a bill of attainder presented to Parliament becauseof his reform
activities."5 Two American SupremeCourt decision were thus in the minds of the
framers.They are Cummings v. Missouri and Ex parte Garland. They speak unequivocally.
6 7
Legislative acts, no matter whattheir form, that apply either to named individuals or
easilyascertainable members of a group in such a way as to inflicton them punishment
amounting to a deprivation ofany right, civil or political, without judicial trial are billsof
attainder prohibited by the Constitution. 8 December term of 1860. Underthe previous rules of such Court, all that was necessarywas
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the
loyalty oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision,
lawyers, doctors, ministers, and otherprofessionals must disavow that they had ever, "by act
orword," manifested a "desire" for the success of the nation'senemies or a sympathy" with
the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they
engaged in their professions without theoath, they were criminally liable. The United States
Supreme Court condemned the provision as a bill of attainder,identified as any legislative
act inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical,
previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable
116
was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which
inflicts punishment without a judicialtrial. If the punishment be less than death, the actis
termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder
include bills ofpains and penalties. In these cases the legislative body, inaddition to its
legitimate functions, exercises the powersand office of judge; it assumes, in the language
of thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any
of the forms or safeguardsof trial; it determines the sufficiency of the proofs
produced,whether conformable to the rules of evidence orotherwise; and it fixes the
degree of punishment in accordancewith its own notions of the enormity of the offense. ...
If the clauses of the 2d article of the Constitutionof Missouri, to which we have referred, had
in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having been in
armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled
or drafted into the military service of the UnitedStates, and, therefore, should be deprived
of the right topreach as a priest of the Catholic church, or to teach inany institution of
learning, there could be no question thatthe clauses would constitute a bill of attainder
within themeaning of the Federal Constitution. If these clauses, insteadof mentioning his
name, had declared that all priestsand clergymen within the state of Missouri were guiltyof
these acts, or should be held guilty of them, and hencebe subjected to the like deprivation,
the clause would beequally open to objection. And further, it these clauseshad declared
that all such priests and clergymen shouldbe so held guilty, and be thus deprived, provided
they didnot, by a day designated, do certain specified acts, theywould be no less within
the inhibition of the Federal Constitution.In all these cases there would be the
legislativeenactment creating the deprivation, without any of theordinary forms and guards
provided for the security ofthe citizen in the administration of justice by the
establishedtribunales." 10
On the very same day that the ruling in Cummings washanded down, Ex
parte Garland 11 was also decided. Thatwas a motion for leave to practrice as an attorney
beforethe American Supreme Court. Petitioner Garland wasadmitted to such bar at the
that the applicant have three years practice in the statecourts to which he belonged. In
March 1865, the rule waschanged by the addition of a clause requiring that an oathbe
taken under the Congressional acts of 1862 and 1865to the effect that such candidate for
admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner
Garland could not in conscience subscribeto such an oath, but he was able to show a
presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that
he be allowed to continue inpractice contending that the test oath requirement
wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same
ruling was announced by theCourt again through Justice Field. Thus: "In the exclusionwhich
the statute adjudges, it imposes a punishmentfor some of the acts specified which were not
punishableat the time they were committedl; and for other of the actsit adds a new
punishment to that before prescribed, andit is thus brought within the further inhibition of
the Consitutionagainst the passage of an ex post facto law. Inthe case of Cummings v.
Missouri, just decided, ... wehave had occasion to consider at length the meaning of abill
of attainder and of an ex post facto law in the clauseof the Constitution forbidding their
passage by the states,and it is unnecessary to repeat here what we there said.A like
prohibition is contained in the Constitution againstenactments of this kind by Congress; and
the argumentpresented in that case against certain clauses of the Constitutionof Missouri is
equally applicable to the act ofCongress under consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in United States v.
Lovett, 13 decided in 1946.There it was shown that in 1943 the respondents, Lovett,Watson,
and Dodd, were and had been for several yearsworking for the government. The
government agencies,which had lawfully employed them, were fully satisfiedwith the
quality of their work and wished to keep thememployed on their jobs. Over their protest,
Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by
way of an amendment attached to theHouse Bill, that after November 15, 1943, no salary
orcompensation should be paid respondent out of any moneythen or thereafter
appropriated except for services as jurorsor members of the armed forces, unless they
wereprior to November 15, 1943, again appointed to jobs bythe President with the advide
and consent of the Senate.Notwithstanding such Congressional enactment, and thefailure
of the President to reappoint the respondents, theagencies, kept all the respondents at
work on their jobs forvarying periods after November 15, 1943, but their compensationwas
discontinued after that date. Respondentsbrought this action in the Court of Claims for the
salariesto which they felt entitled. The Ameican Supreme Courtstated that its inquiry was
thus confined to whether theaction in the light of proper construction of the Act
presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder
insofar as the respondents wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion
by Justice Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the
category of Congressional actionswhich the Constitution barred by providing that 'No Billof
Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this Court said,
'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the
punishment be lessthan death, the act is termed a bill of pains and penalties.Within the
meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ... On the
sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid
on the same grounds anAct of Congress which required attorneys practicing beforethis
Court to take a similar oath. Neither of thesecases has ever been overruled. They stand for
117
the propositionthat legislative acts, no matter what their form,that apply either to named
individuals or to easily ascertainablemembers of a group in such a way as to
inflictpunishment on them without a judicial trial are billsof attainder prohibited by the
Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere
to it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the
Labor-ManagementReporting and Disclosure Act of 1959, making it a crimefor a member
of the Communist Party to serve as anofficer ir, except in clerical or custodial positions,
anemployee of a labor union. Respondent Brown, a longshoremanon the San Francisco
docks, and an open andavowed Communist, for more than a quarter of a centurywas
elected to the Executive Board of Local 10 of theInternational Longshoremen's and
Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24,
1961, respondent was charged in a one-countindictment returned in a district court of
California withservicing as a member of an executive board of a labororganization while a
member of the Communist Party, inwillful violation of the above provision. The question ofits
validity under the bill of attainder clause was thusproperly raised for adjudication. While
convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was
sustained by the American SupremeCourt. As noted in the opinion by Chief Justice
Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of attainder
indicates that the properscope of the Bill of Attainder Clause, and its relevance
tocontemporary problems, must ultimately be sought by attemptingto discern the reasons
for its inclusion in theConstitution, and the evils it was desinged to eliminate.The best
available evidence, the writings of the architectsof our constitutional system, indicates that
the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore soon to be
outmoded) prohibition, but ratheras an implementation of the separation of powers,
ageneral safeguard against legislative exercise of the judicialfunction, or more simply —
trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice
Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management
Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly
possesses power under theCommerce Clause to enact legislation designed to keepfrom
positions affecting interstate commerce persons whomay use such positions to bring about
political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the
Constitution. The statute does not setforth a generally applicable rule decreeing that any
personwho commits certain acts or possesses certain characteristics (acts and
characteristics whhich, in Congress'view, make them likely to initiate political strikes) shallnot
hold union office, and leave to courts and juries thejob of deciding what persons have
committed the specifiedacts or possessed the specified characteristics. Instead,it
designates in no uncertain terms the personswho possess the fearec characteristics and
therefore cannothold union office without incurring criminal liability — members of the
Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the
Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States
to register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the Cummingsprinciple. Had the American
Communist Party been outlawed,the outcome certainly would have been different.Thus:
"The Act is not a bill of attainder. It attaches notto specified organizations but to described
activities inwhich an organization may or may not engage. The singlingout of an individual
for legislatively prescribed punishmentconstitutes an attainder whether the individualis
called by name or described in terms of conduct which,because it is past conduct,
operates only as a designationof particular persons. ... The Subversive Activities ControlAct
is not of that king. It requires the registrationonly of organizations which, after the date of
the Act,are found to be under the direction, domination, or controlof certain foreign
powers and to operate primarily toadvance certain objectives. This finding must be
madeafter full administrative hearing, subject to judicial reviewwhich opens the record for
the reviewing court'sdetermination whether the administrative findings as tofact are
supported by the preponderance of the evidence.Present activity constitutes an operative
element to whichthe statute attaches legal consequences, not merely a pointof reference
for the ascertainment of particularly personsineluctably designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive considering what appeared
to be in the mindsof the framers of the 1934 Constitutional Conventionyields for me the
conclusion that the Anti-SubversionAct falls within the ban of the bill of attainder clause.
Itshould be noted that three subsequent cases upholding theCummings and Garland
doctrine were likewise cited in theopinion of the Court. The interpretation accorded to
themby my brethren is, of course, different but I am unable togo along with them especially
in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the
qualification that for them could deprive such aholding of its explicit character as shown by
this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of
attainder it would be totally unnecessaryto charge communists in court, as the law
alone,without more, would suffice to secure their conviction andpunishment. But the fact is
that their guilt still has to bejudicially estblished. The Government has yet to proveat the trial
that the accused joined the Party knowingly,willfully and by overt acts, and that they joined
the Partyknowing its subversive character and with specific intentto further its objective, i.e.,
to overthrow the existing Governmentby force, deceit, and other illegal means and placeit
under the control and domination of a foreign power. 20While not implausible, I find
difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe
Catholic priest who refused to take the loyalty oath.Again in Brown, there was an
118
indictment of the laborleader who, judging by his membership in the CommunistParty, did
transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If
the constructionI would place on theoff-repeated pronouncementof the American
Supreme Court is correct, then the merefact that a criminal case would have to be
instituted wouldnot save the statute. It does seem clear to me that fromthe very title of the
Anti-Subversion Act, "to outlaw the Communist Party of the Philippines and similar
associations,"not to mention other specific provisions, the taintof invalidity is quite marked.
Hence, my inability to concurin the judgment reached as the statute not suffering fromany
fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder.
3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the
intellectual libertysafeguarded by the Constitution in terms of the free speechand free
assocition guarantees. 21 It is to be admitted thatat the time of the enactment of Republic
Act No. 1700,the threat that Communism, the Russian brand then, didpose was a painful
reality for Congressional leaders andthe then President. Its shadow fell squarely across
thelives of all. Subversion then could neither be denied notdisparaged. There was, in the
expert opinion of those conversantwith such mattes, a danger to out national existenceof
no mean character. Nonetheless, the remedies toward off such menace must not be
repugnant to our Constitution.We are legally precluded from acting in anyother way. The
apprehension justly felt is no warrant forthrowing to the discard fundamental guarantees.
Vigilantwe had to be, but not at the expense of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the right to dissent. One
can differ, evenobject; one can express dissatisfaction with things as theyare. There are
timew when one not only can but must.Such dissent can take the form of the most critical
andthe most disparaging remarks. They may give offense tothose in authority, to those who
wield powe and influence.Nevertheless, they are entitled to constitutional
protection.Insofar as the content of such dissent is concerned, thelimits are hardly
discernible. It cannot be confined totrivial matters or to such as are devoid of too much
significance.It can reach the heart of things. Such dissentmay, for those not so adventurous
in the realm of ideas,possess a subversive tinge. Even those who oppose a democraticform
of government cannot be silenced. This is trueespecially in centers of learning where
scholars competentin their line may, as a result of their studies, assert thata future is bleak
for the system of government now favoredby Western democracies. There may be doubts
entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen may do so without fear thatthereby he
incurs the risk of a penal sanction. That ismerely to affirm the truth of this ringing declaration
fromJefferson: "If there be any among us who would wish todissolve this union or to change
its republican form, letthem stand undisturbed as monuments of the safety withwhich error
of opinion may be tolerated where reason isleft free to combat it." 22 As was so well put by
the philosopher,Sidney Hook: "Without holding the right to theexpression of heresy at any
time and place to be absolute — for even the right to non-heretical speech cannot
beabsolute — it still seems wise to tolerate the expression evenof Communist, fascist and
other heresies, lest in outlawingthem we include other kings of heresies, and deprive
ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23
The line is to be drawn, however, where the wordsamount to an incitement to commit the
crime of seditionor rebellion. The state has been reached, to follow theformulation of
Cardozo, where thought merges into action.Thus is loyalty shown to the freedom of speech
or pressordained by the Constitution. It does not bar the expressionof views affecting the
very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does
not require as a matter of fact, that unorthodoxideas be freely ventilated and fully heard.
Dissent is notdisloyalty.
Such an approach is reinforced by the well-settled constitutionalprinciple "that even though
the governmental purposesbe legitimate and substantial, they cannot be pursuedby
means that broadly stifle fundamental personalliberties when the end can be more
narrowly achieved.For precision of regulation is the touchstone in an areaso closely related
to our most precious freedoms." 24 This is so for "a governmental purpose to control or
prevent activities constitutionally subject to state regulation may notbe achieved by means
which sweep unnecessarily broadlyand thereby invade the area of protected
freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute
be avoided. If such be the case, then theline dividing the valid from the constitutionally
infirm hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the
Anti-Subversion Act.
There is to my mind support for the stand I take inthe dissent of Justice Black in the
Communist Party casediscussed above. What is to be kept in view is that a
legislativemeasure certainly less drastic in its treatment ofthe admittedly serious Communist
problem was found inthe opinion of this noted jurist offensive to the FirstAmendment of the
American Constitution safeguardingfree speech. Thus: "If there is one thing certain
aboutthe First Amendment it is that this Amendment was designedto guarantee the freest
interchange of ideas aboutall public matters and that, of course, means the
interchangeof all ideas, however such ideas may be viewed inother countries and
whatever change in the existing structureof government it may be hoped that these ideas
willbring about. Now, when this country is trying to spreadthe high ideals of democracy all
over the world — ideals that are revolutionary in many countries — seems to be
aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same
arguments that areused to justify the outlawry of Communist ideas here couldbe used to
justify an outlawry of the ideas of democracyin other countries." 26 Further he stated: "I
believe with theFramers of the First Amendment that the internal securityof a nation like ours
119
does not and cannot be made todepend upon the use of force by Government to make
allthe beliefs and opinions of the people fit into a commonmold on any single subject. Such
enforced conformity ofthought would tend only to deprive our people of the boldspirit of
adventure and progress which has brought thisNation to its present greatness. The creation
of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a
necessary part of our democraticsociety. Such groups, like the Sons of Liberty and
theAmerican Corresponding Societies, played a large part increating sentiment in this
country that led the people ofthe Colonies to want a nation of their own. The Father ofthe
Constitution — James Madison — said, in speakingof the Sedition Act aimed at crushing the
Jefferson Party,that had that law been in effect during the period beforethe Revolution, the
United States might well have continuedto be 'miserable colonies, groaning under a foreign
yoke.'In my judgment, this country's internal security can betterbe served by depending
upon the affection of the peoplethan by attempting to instill them with fear and dreadof
the power of Government. The Communist Party hasnever been more than a small group in
this country. Andits numbers had been dwindling even before the Governmentbegan its
campaign to destroy the Party by force oflaw. This was because a vast majority of the
Americanpeople were against the Party's policies and overwhelminglyrejected its
candidates year after year. That is the trueAmerican way of securing this Nation against
dangerousideas. Of course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our Constitution which we would
bewise to follow. They gave the Government the fullest powerto prosecute overt actions in
violation of valid lawsbut withheld any power to punish people for nothing morethan
advocacy of their views." 27
With the sentiments thus expressed uppermost in mymind and congenial to my way of
thinking, I cannot sharethe conclusion reached by my breathren as to the Anti-Subversion
Act successfully meeting the test of validity onfree speech and freedom of association
grounds.
4. It could be that this approach to the constitutionalquestions involved arises from an
appraisal of the challengedstatute which for me is susceptible of an interpretationthat it
does represent a defeatist attitude on thepart of those of us, who are devotees at the
shrine of aliberal-democratic state. That certainly could not havebeen the thought of its
framers; nonetheless, such an assumptionis not devoid of plausibility for why resort tothis
extreme measure susceptible as it is to what apparentlyare not unfounded attacks on
constitutional grounds?Is this not to ignore what previously was accepted as anobvious
truth, namely that the light of liberalism sendsits shafts in many directions? It can illuminate,
and itcan win the hearts and minds of men. It if difficult forme to accept the view then that
a resort to outlawry isindispensable, that suppression is the only answer to whatis an
admitted evil. There could have been a greater exposureof the undesirability of the
communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its
inculcation of disloyalty, and its subservience tocentralized dictation that brooks no
opposition. It is thus,in a realistic sense, a manifestation of the fear of freethought and the
will to suppress it. For better, of course,is the propaganda of the deed. What the
communists promise,this government can fulfill. It is up to it then to takeremedial measures
to alleviate the condition of our countrymenwhose lives are in a condition of destitution
andmisery. It may not be able to change matters radically.At least, it should take earnest
steps in that direction.What is important for those at the bottom of the economicpyramid is
that they are not denied the opportunity for abetter life. If they, or at least their children,
cannot evenlook forward to that, then a constitutional regime is nothingbut a mockery and
a tragic illusion. Such a response,I am optimistic enough to believe, has the merit of
thinning,if not completely eliminating, the embattled ranksand outposts of ignorance,
fanaticism and error. That forme would be more in accordance with the basic propositionof
our polity. This is not therefore to preach a doctrine of object surrender to the forces
apparently bent on the adoption of a way of life so totally opposed to the deeply felt
traditions of our people. This is, for me at least, an affirmation of the vitality of the
democratic creed, with an expression of regret that it could not have been more
impressively set forth in language worthy of the subject.
It is in the light of the views above expressed that I find myself unable to yield concurrence
to the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-
Subversion Act.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 80762 March 19, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO GONZALES, SR., CUSTODIO GONZALES,
JR., NERIO GONZALES and ROGELIO LANIDA, accused, CUSTODIO GONZALES, SR., accused-
appellant.
SARMIENTO, J.:
In a decision 1 dated October 31, 1984, the Regional Trial Court of Iloilo, Branch XXXVIII (38),
in Criminal Case No. 13661, entitled "People of the Philippines vs. Fausta Gonzales, Augusto
Gonzales, Custodia Gonzales, Custodio Gonzales, Jr., Nerio Gonzales and Rogelio Lanida,"
found all the accused, except Rogelio Lanida who eluded arrest and up to now has remain
at large and not yet arrained, guilty beyond reasonable doubt of the crime of murder as
120
defined under Article 248 of the Revised Penal Code. They were sentenced "to suffer the
penalty of imprisonment of twelve (12) years and one (1) day to seventeen (17) years and
four (4) months of reclusion temporal, to indemnify the heirs of the deceased victim in the
amount of P40,000.00, plus moral damages in the sum of P14,000.00 and to pay the
costs." 2 The victim was Lloyd Peñacerrada, 44, landowner, and a resident of Barangay
Aspera, Sara, Iloilo.
Through their counsel, all the accused, except of course Rogelio Lanida, filed a notice of
appeal from the trial court's decision. During the pendency of their appeal and before
judgment thereon could be rendered by the Court of Appeals, however, all the accused-
appellants, except Custodio Gonzales, Sr., withdrew their appeal and chose instead to
pursue their respective applications for parole before the then Ministry, now Department, of
Justice, Parole Division. 3
On October 27, 1987, the Court of Appeals rendered a decision 4 on the appeal of
Custodio Gonzales, Sr. It modified the appealed decision in that the lone appellant was
sentenced to reclusion perpetua and to indemnify the heirs of Lloyd Peñacerrada in the
amount of P30,000.00. In all other respect, the decision of the trial court was affirmed.
Further, on the basis of our ruling in People vs. Ramos, 5 the appellate court certified this
case to us for review.6
The antecedent facts are as follows:
At around 9:00 o'clock in the evening of February 21, 1981, Bartolome Paja, the barangay
captain of Barangay Tipacla, Ajuy, Iloilo, was awakened from his sleep by the spouses
Augusto and Fausta Gonzales. Augusto informed Paja that his wife had just killed their
landlord, Lloyd Peñacerrada, and thus would like to surrender to the authorities. Seeing
Augusto still holding the knife allegedly used in the killing and Fausta with her dress smeared
with blood, Paja immediately ordered a nephew of his to take the spouses to the police
authorities at the Municipal Hall in Poblacion, Ajuy. As instructed, Paja's nephew brought
the Gonzales spouses, who "backrode" on his motorcycle, to the municipal building. 7 Upon
reaching the Ajuy Police sub-station, the couple informed the police on duty of the
incident. That same night, Patrolman Salvador Centeno of the Ajuy Police Force and the
Gonzales spouses went back to Barangay Tipacla. Reaching Barangay Tipacla the group
went to Paja's residence where Fausta was made to stay, while Paja, Patrolman Centeno,
and Augusto proceeded to the latter's residence at Sitio Nabitasan where the killing
incident allegedly occurred. 8 There they saw the lifeless body of Lloyd Peñacerrada, clad
only in an underwear, sprawled face down inside the bedroom. 9 The group stayed for
about an hour during which time Patrolman Centeno inspected the scene and started to
make a rough sketch thereof and the immediate surroundings. 10 The next day, February 22,
1981, at around 7:00 o'clock in the morning, Patrolman Centeno, accompanied by a
photographer, went back to the scene of the killing to conduct further investigations.
Fausta Gonzales, on the other hand, was brought back that same day by Barangay
Captain Paja to the police substation in Ajuy. When Patrolman Centeno and his
companion arrived at Sitio Nabitasan, two members of the 321st P.C. Company stationed
in Sara, Iloilo, who had likewise been informed of the incident, were already there
conducting their own investigation. Patrolman Centeno continued with his sketch;
photographs of the scene were likewise taken. The body of the victim was then brought to
the Municipal Hall of Ajuy for autopsy.
The autopsy of Lloyd Peñacerrada's cadaver was performed at about 11:20 a.m. on
February 22, 1981; after completed, a report was made with the following findings:
PHYSICAL FINDINGS
1. Deceased is about 5 ft. and 4 inches in height, body moderately built
and on cadaveric rigidity.
EXTERNAL FINDINGS
1. Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower
3rd anterior aspect of the arm, right, directed upward to the right axillary
pit.
2. Stab wound, thru and thru, located at the proximal 3rd, forearm right,
posterior aspect with an entrance of 5 cm. in width and 9 cm. in length
with an exit at the middle 3rd, posterior aspect of the forearm, right, with
1 cm. wound exit.
3. Stab wound, thru and thru, located at the middle 3rd, posterior aspect
of the forearm right, 1 cm. in width.
4. Incised wound, 4 cm. long, depth visualizing the right lateral border of
the sternum, 6th and 7th ribs, right located 1.5 inches below the right
nipple.
5. Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the
thoracic cavity right, located at the left midclavicular line at the level of
the 5th rib left.
6. Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right
thoracic cavity, located at the mid left scapular line at the level of the
8th intercostal space.
7. Puncture wound, 1 cm. in width, located at the base of the left armpit
directed toward the left thoracic cavity.
8. Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the
left deltoid muscle, located at the upper 3rd axilla left.
9. Puncture wound, 3 cm in width, 11.5 cm in length, located at the
anterior aspect, proximal 3rd arm left, directed downward.
121
10. Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length,
medial aspect, palm right.
11. Stabwound, 4 cm.in width, iliac area, right, directed inward with
portion of large intestine and mysentery coming out.
12. Stab wound, 4 cm. in width, located at the posterior portion of the
shoulder, right, directed downward to the aspex of the light thoracic
cavity.
13. Incised wound, 1 cm. in width, 10 cm. in length, located at the
medial portion of the medial border of the right scapula.
14. Incised wound, 1 cm. in width, 4.5 cm. in length, located at the
posterior aspect of the right elbow.
15. Incised wound, 1 cm. in width, 2 cm. in length, located at the
posterior portion, middle 3rd, forearm, right.
16. Lacerated wound at the anterior tantanelle with fissural fracture of
the skull.
INTERNAL FINDINGS:
1. Stab wound No. 5, injuring the left ventricle of the
heart.
2. Stab wound No. 6, severely injuring the right lower
lobe of the lungs.
3. Stab wound No. 7, injuring the right middle lobe of
the lungs.
4. Stab wound No. 11, injuring the descending colon
of the large intestine, thru and thru.
5. Stab wound No. 12, severely injuring the apex of the
right lungs (sic).
CAUSE OF DEATH:
MASSIVE HEMMORRHAGE DUE TO
MULTIPLE LACERATED, STABBED (sic),
INCISED AND PUNCTURED WOUNDS.
 R
O
J
A
S
,

M
.
D
.

R
The autopsy report thus showed
u that Dr. Rojas "found sixteen (16) wounds, five (5) of which
are fatal because they penetrated
r the internal organs, heart, lungs and intestines of the
deceased." 12 a
On February 23, two days after
l the incident, Augusto Gonzales appeared before the police
sub-station in the poblacion of Ajuy and voluntarily surrendered to Police Corporal Ben
Sazon for detention and protective
H custody for "having been involved" in the killing of Lloyd
Peñacerrada. He requested that
e he be taken to the P.C. headquarters in Sara, Iloilo where
his wife, Fausta, was already detained
a having been indorsed thereat by the Ajuy police
force. 13 l
Based on the foregoing and on
t the investigations conducted by the Ajuy police force and
the 321st P.C. Company, an information
h for murder dated August 26, 1981, was filed by the
Provincial Fiscal of Iloilo against the spouses Augusto and Fausta Gonzales. The information
read as follows: P
The undersigned
h Provincial Fiscal accuses FAUSTA GONZALES and
AUGUSTO GONZALES
y of the crime of MURDER committed as follows:
That on or sabout the 21st day of February, 1981, in the Municipality of
Ajuy, Province
i of Iloilo, Philippines, and within the jurisdiction of this Court,
the above-named
c accused with four other companions whose identities
are still unknown
i and are still at large, armed with sharp-pointed and
deadly weapons,
a conspiring, confederating and helping each other,
with treachery
n and evident premeditation, with deliberate intent and
decided purpose to kill, and taking advantage of their superior strength
and number,
A did then and there wilfully, unlawfully and feloniously
attack, assault,
j stab, hack, hit and wound Lloyd D. Peñacerrada, with

122
 the weapons with which said accused were provided at the time,
thereby inflicting upon said Lloyd D. Peñacerrada multiple wounds on
different parts of his body as shown by autopsy report attached to the
record of this case which multifarious wounds caused the immediate
death of said Lloyd D. Peñacerrada.
CONTRARY TO LAW.
Iloilo City, August 26, 1981. 14
When arraigned on September 16, 1981, Augusto and Fausta both entered a plea of not
guilty. Before trial, however, Jose Huntoria 15 who claimed to have witnessed the killing of
Lloyd Peñacerrada, presented himself to Nanie Peñacerrada, the victim's widow, on
October 6, 1981, and volunteered to testify for the prosecution. A reinvestigation of the
case was therefore conducted by the Provincial Fiscal of Iloilo on the basis of which an
Amended Information, 16 dated March 3, 1982, naming as additional accused Custodio
Gonzales, Sr. (the herein appellant), Custodio Gonzales, Jr., Nerio Gonzales, and Rogelio
Lanida, was filed. Again, all the accused except as earlier explained, Lanida, pleaded not
guilty to the crime.
At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health physician of Ajuy
who conducted the autopsy on the body of the victim; Bartolome Paja, the barangay
captain of Barangay Tipacla; Patrolman Salvador Centeno and Corporal Ben Sazon of the
Ajuy Police Force; Sgt. (ret) Nicolas Belicanao and Sgt. Reynaldo Palomo of the 321st P.C.
Company based in Sara, Iloilo; Jose Huntoria; and Nanie Peñacerrada, the widow.
Dr. Jesus Rojas testified that he performed the autopsy on the body of the deceased Lloyd
Penacerrada at around 11:20 a.m. on February 22, 1981 after it was taken to the municipal
hall of Ajuy. 17 His findings revealed that the victim suffered from 16 wounds comprising of
four (4) punctured wounds, seven (7) stab wounds, four (4) incised wounds, and one (1)
lacerated wound. In his testimony, Dr. Rojas, while admitting the possibility that only one
weapon might have caused all the wounds (except the lacerated wound) inflicted on the
victim, nevertheless opined that due to the number and different characteristics of the
wounds, the probability that at least two instruments were used is high. 18 The police
authorities and the P.C. operatives for their part testified on the aspect of the investigation
they respectively conducted in relation to the incident. Nanie Peñacerrada testified mainly
on the expenses she incurred by reason of the death of her husband while Barangay
Captain Bartolome Paja related the events surrounding the surrender of the spouses
Augusto and Fausta Gonzales to him, the location of the houses of the accused, as well as
on other matters.
By and large, the prosecution's case rested on Huntoria's alleged eyewitness account of
the incident. According to Huntoria, who gave his age as 30 when he testified on July 27,
1982, 19 at 5:00 o'clock in the afternoon on February 21, 1981, he left his work at Barangay
123
Central, in Ajuy, Iloilo where he was employed as a tractor driver by one Mr. Piccio, and
walked home; 20 he took a short-cut route. 21 While passing at the vicinity of the Gonzales
spouses' house at around 8:00 o'clock in the evening, he heard cries for help. 22 Curiosity
prompted him to approach the place where the shouts were emanating. When he was
some 15 to 20 meters away, he hid himself behind a clump of banana
trees. 23 From where he stood, he allegedly saw all the accused ganging upon and takings
turns in stabbing and hacking the victim Lloyd Peñacerrada, near a "linasan" or threshing
platform. He said he clearly recognized all the accused as the place was then awash in
moonlight. 24 Huntoria further recounted that after the accused were through in stabbing
and hacking the victim, they then lifted his body and carried it into the house of the
Gonzales spouses which was situated some 20 to 25 meters away from the
"linasan". 25 Huntoria then proceeded on his way home. Upon reaching his house, he
related what he saw to his mother and to his wife 26 before he went to sleep. 27Huntoria
explained that he did not immediately report to the police authorities what he witnessed for
fear of his life. 28 In October 1981 however, eight months after the extraordinary incident he
allegedly witnessed, bothered by his conscience plus the fact that his father was formerly a
tenant of the victim which, to his mind, made him likewise a tenant of the latter, he thought
of helping the victim's widow, Nanie Peñacerrada. Hence, out of his volition, he travelled
from his place at Sitio Nabitasan, in Barangay Tipacla Municipality of Ajuy, to Sara, Iloilo
where Mrs. Peñacerrada lived, and related to her what he saw on February 21, 1981. 29
Except Fausta who admitted killing Lloyd Peñacerrada in defense of her honor as the
deceased attempted to rape her, all the accused denied participation in the crime. The
herein accused-appellant, Custodio Gonzales, Sr., claimed that he was asleep 30 in his
house which was located some one kilometer away from the scene of the crime 31 when
the incident happened. He asserted that he only came to know of it after his grandchildren
by Augusto and Fausta Gonzales went to his house that night of February 21, 1981 to inform
him. 32
The trial court disregarded the version of the defense; it believed the testimony of Huntoria.
On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone appellant, contended
that the trial court erred in convicting him on the basis of the testimony of Jose Huntoria, the
lone alleged eyewitness, and in not appreciating his defense of alibi.
The Court of Appeals found no merit in both assigned errors. In upholding Huntoria's
testimony, the appellate court held that:
. . . Huntoria positively identified all the accused, including the herein
accused-appellant, as the assailants of Peñacerrada. (TSN, p. 43, July 27,
1982) The claim that Huntoria would have difficulty recognizing the
assailant at a distance of 15 to 20 meters is without merit, considering
that Huntoria knew all the accused. (Id., pp. 37-39) If Huntoria could not
 say who was hacking and who was stabbing the deceased, it was only
because the assailant were moving around the victim.
As for the delay in reporting the incident to the authorities, we think that
Huntoria's explanation is satisfactory. He said he feared for his life. (Id.,
pp. 50-51, 65) As stated in People vs. Realon, 99 SCRA 442, 450 (1980):
"The natural reticence of most people to get involved in a criminal case
is of judicial notice. As held in People v. Delfin, '. . . the initial reluctance
of witnesses in this country to volunteer information about a criminal case
and their unwillingness to be involved in or dragged into criminal
investigations is common, and has been judicially declared not to affect
credibility.'"
It is noteworthy that the accused-appellant self admitted that he had
known Huntoria for about 10 years and that he and Huntoria were in
good terms and had no misunderstanding whatsoever. (TSN, p. 33, July
18, 1984) He said that he could not think of any reason why Huntoria
should implicate him. (Id., p. 34) Thus, Huntoria's credibility. is beyond
question. 33
The Court of Appeals likewise rejected the appellant's defense of alibi. 34 The appellate
court, however, found the sentence imposed by the trial court on the accused-appellant
erroneous. Said the appellate court:
Finally, we find that the trial court erroneously sentenced the accused-
appellant to 12 years and 1 day to 17 years and 4 months of reclusion
temporal. The penalty for murder under Article 248 is reclusion
temporal in its maximum period to death. As there was no mitigating or
aggravating circumstance, the imposible penalty should be reclusion
perpetua. Consequently, the appeal should have been brought to the
Supreme Court. With regard to the indemnity for death, the award of
P40,000.00 should be reduced to P30,000.00, in accordance with the
rulings of the Supreme Court. (E.g., People v. De la Fuente, 126 SCRA 518
(1983); People v. Atanacio, 128 SCRA 31 (1984); People v. Rado, 128
SCRA 43 (1984); People v. Bautista, G.R. No. 68731, Feb. 27, 1987).35
The case, as mentioned earlier, is now before us upon certification by the Court of Appeals,
the penalty imposed being reclusion perpetua.
After a careful review of the evidence adduced by the prosecution, we find the same
insufficient to convict the appellant of the crime charged.
To begin with, the investigation conducted by the police authorities leave much to be
desired. Patrolman Centeno of the Ajuy police force in his sworn statements 36 even gave
the date of the commission of the crime as "March 21, 1981." Moreover, the sketch 37
made of the scene is of little help. While indicated thereon are the alleged various blood
stains and their locations relative to the scene of the crime, there was however no
indication as to their quantity. This is rather unfortunate for the prosecution because,
considering that there are two versions proferred on where the killing was carried out, the
extent of blood stains found would have provided a more definite clue as to which version
is more credible. If, as the version of the defense puts it, the killing transpired inside the
bedroom of the Gonzales spouses, there would have been more blood stains inside the
couple's bedroom or even on the ground directly under it. And this circumstance would
provide an additional mooring to the claim of attempted rape asseverated by Fausta. On
the other hand, if the prosecution's version that the killing was committed in the field near
the linasan is the truth, then blood stains in that place would have been more than in any
other place.
The same sloppiness characterizes the investigation conducted by the other authorities.
Police Corporal Ben Sazon who claimed that accused Augusto Gonzales surrendered to
him on February 23, 1981 failed to state clearly the reason for the "surrender." It would even
appear that Augusto "surrendered" just so he could be safe from possible revenge by the
victim's kins. Corporal Sazon likewise admitted that Augusto never mentioned to him the
participation of other persons in the killing of the victim. Finally, without any evidence on
that point, P.C. investigators of the 321st P.C. Company who likewise conducted an
investigation of the killing mentioned in their criminal complaint 38 four other unnamed
persons, aside from the spouses Augusto and Fausta Gonzales, to have conspired in killing
Lloyd Peñacerrada.
Now on the medical evidence. Dr. Rojas opined that it is possible that the sixteen wounds
described in the autopsy report were caused by two or more bladed instruments.
Nonetheless, he admitted the possibility that one bladed instrument might have caused all.
Thus, insofar as Dr. Rojas' testimony and the autopsy report are concerned, Fausta
Gonzales' admission that she alone was responsible for the killing appears not at all too
impossible. And then there is the positive testimony of Dr. Rojas that there were only five
wounds that could be fatal out of the sixteen described in the autopsy report. We shall
discuss more the significance of these wounds later.
It is thus clear from the foregoing that if the conviction of the appellant by the lower courts
is to be sustained, it can only be on the basis of the testimony of Huntoria, the self-
proclaimed eyewitness. Hence, a meticulous scrutiny of Huntoria's testimony is compelling.
To recollect, Huntoria testified that he clearly saw all the accused, including the appellant,
take turns in hacking and stabbing Lloyd Peñacerrada, at about 8:00 o'clock in the
evening, on February 21, 1981, in the field near a "linasan" while he (Huntoria) stood
concealed behind a clump of banana trees some 15 to 20 meters away from where the
he crime was being committed. According to him, he recognized the six accused as the
124
malefactors because the scene was then illuminated by the moon. He further stated that
the stabbing and hacking took about an hour. But on cross-examination, Huntoria admitted
that he could not determine who among the six accused did the stabbing and/or hacking
and what particular weapon was used by each of them.
ATTY. GATON (defense counsel on cross-examination):
Q And you said that the moon was bright, is it correct?
A Yes, Sir.
Q And you would like us to understand that you saw
the hacking and the stabbing, at that distance by the
herein accused as identified by you?
A Yes, sir, because the moon was brightly shining.
Q If you saw the stabbing and the hacking, will you
please tell this Honorable Court who was hacking the
victim?
A Because they were surrounding Peñacerrada and
were in constant movement, I could not determine
who did the hacking.
ATTY. GATON:
The interpretation is not clear.
COURT:
They were doing it rapidly.
A The moving around or the hacking or the "labu" or
"bunu" is rapid. I only saw the rapid movement of their
arms, Your Honor, and I cannot determine who was
hacking and who was stabbing. But I saw the hacking
and the stabbing blow.
ATTY. GATON:
Q You cannot positively identify before this Court who
really hacked Lloyd Peñacerrada?
A Yes sir, I cannot positively tell who did the hacking.
Q And likewise you cannot positively tell this
Honorable Court who did the stabbing?
A Yes sir, and because of the rapid movements.
Q I noticed in your direct testimony that you could not
even identify the weapons used because according
to you it was just flashing?
A Yes, sir.39
(Emphasis supplied)
125
From his very testimony, Huntoria failed to impute a definite and specific act committed, or
contributed, by the appellant in the killing of Lloyd Peñacerrada.
It also bears stressing that there is nothing in the findings of the trial court and of the Court of
Appeals which would categorize the criminal liability of the appellant as a principal by
direct participation under Article 17, paragraph 1 of the Revised Penal Code. Likewise,
there is nothing in the evidence for the prosecution that inculpates him by inducement,
under paragraph 2 of the same Article 17, or by indispensable cooperation under
paragraph 3 thereof. What then was the direct part in the killing did the appellant perform
to support the ultimate punishment imposed by the Court of Appeals on him?
Article 4 of the Revised Penal Code provides how criminal liability is incurred.
Art. 4. Criminal liability — Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended.
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.
(Emphasis supplied.)
Thus, one of the means by which criminal liability is incurred is through the commission of a
felony. Article 3 of the Revised Penal Code, on the other hand, provides how felonies are
committed.
Art. 3. Definition — Acts and omissions punishable by law are felonies
(delitos).
Felonies are committed not only by means of deceit (dolo) but also by
means of fault (culpa).
There is deceit when the act is performed with deliberate intent; and
there is fault when the wrongful act results from imprudence, negligence,
lack of foresight, or lack of skill.
(Emphasis supplied.)
Thus, the elements of felonies in general are: (1) there must be an act or omission; (2) the
act or omission must be punishable under the Revised Penal Code; and (3) the act is
performed or the omission incurred by means of deceit or fault.
Here, while the prosecution accuses, and the two lower courts both found, that the
appellant has committed a felony in the killing of Lloyd Peñacerrada, forsooth there is
paucity of proof as to what act was performed by the appellant. It has been said that "act,"
as used in Article 3 of the Revised Penal Code, must be understood as "any bodily
movement tending to produce some effect in the external world." 40 In this instance, there
must therefore be shown an "act" committed by the appellant which would have inflicted
any harm to the body of the victim that produced his death.
Yet, even Huntoria, as earlier emphasized, admitted quite candidly that he did not see who
"stabbed" or who "hacked" the victim. Thus this principal witness did not say, because he
could not whether the appellant "hacked or "stabbed" victim. In fact, Huntoria does not
know what specific act was performed by the appellant. This lack of specificity then makes
the case fall short of the test laid down by Article 3 of the Revised Penal Code previously
discussed. Furthermore, the fact that the victim sustained only five fatal wounds out of the
total of sixteen inflicted, as adverted to above, while there are six accused charged as
principals, it follows to reason that one of the six accused could not have caused or dealt a
fatal wound. And this one could as well be the appellant, granted ex gratia argumenti that
he took part in the hacking and stabbing alleged by Huntoria. And why not him? Is he not
after all the oldest (already sexagenarian at that time) and practically the father of the five
accused? And pursuing this argument to the limits of its logic, it is possible, nay even
probable, that only four, or three, or two of the accused could have inflicted all the five
fatal wounds to the exclusion of two, three, or four of them. And stretching the logic further,
it is possible, nay probable, that all the fatal wounds, including even all the non-fatal
wounds, could have been dealt by Fausta in rage against the assault on her womanhood
and honor. But more importantly, there being not an iota of evidence that the appellant
caused any of the said five fatal wounds, coupled with the prosecution's failure to prove
the presence of conspiracy beyond reasonable doubt, the appellant's conviction can not
be sustained.
Additionally, Huntoria's credibility as a witness is likewise tarnished by the fact that he only
came out to testify in October 1981, or eight long months since he allegedly saw the killing
on February 21, 1981. While ordinarily the failure of a witness to report at once to the police
authorities the crime he
had witnessed should not be taken against him and should not affect his credibility,41 here,
the unreasonable delay in Huntoria's coming out engenders doubt on his veracity. 42 If the
silence of coming out an alleged eyewitness for several weeks renders his credibility
doubtful, 43 the more it should be for one who was mute for eight months. Further, Huntoria's
long delay in reveiling what he allegedly witnessed, has not been satisfactorily explained.
His lame excuse that he feared his life would be endangered is too pat to be believed.
There is no showing that he was threatened by the accused or by anybody. And if it were
true that he feared a possible retaliation from the accused, 44 why did he finally volunteer
to testify considering that except for the spouses Augusto and Fausta Gonzales who were
already under police custody, the rest of the accused were then still free and around; they
were not yet named in the original information, 45 thus the supposed danger on Huntoria's
life would still be clear and present when he testified.
126
Moreover, Huntoria is not exactly a disinterested witness as portrayed by the prosecution.
He admitted that he was a tenant of the deceased. In fact, he stated that one of the
principal reasons why he testified was because the victim was also his landlord.
xxx xxx xxx
Q Now, Mr. Huntoria, why did it take you so long from
the time you saw the stabbing and hacking of Lloyd
Peñacerrada when you told Mrs. Peñacerrada about
what happened to her husband?
A At first I was then afraid to tell anybody else but
because I was haunted by my conscience
and secondly the victim was also my landlord I
revealed what I saw to the wife of the victim.46
xxx xxx xxx
(Emphasis ours.)
At this juncture, it may be relevant to remind that under our socioeconomic set-up, a
tenant owes the very source of his livelihood, if not existence itself, from his landlord who
provides him with the land to till. In this milieu, tenants like Huntoria are naturally beholden
to their landlords and seek ways and means to ingratiate themselves with the latter. In this
instance, volunteering his services as a purported eyewitness and providing that material
testimony which would lead to the conviction of the entire family of Augusto Gonzales
whose wife, Fausta, has confessed to the killing of Lloyd Peñacerrada, would, in a
perverted sense, be a way by which Huntoria sought to ingratiate himself with the surviving
family of his deceased landlord. This is especially so because the need to get into the good
graces of his landlord's family assumed a greater urgency considering that he ceased to be
employed as early as May 1981. 47 Volunteering his services would alleviate the financial
distress he was in. And Huntoria proved quite sagacious in his choice of action for shortly
after he volunteered and presented himself to the victim's widow, he was taken under the
protective wings of the victim's uncle, one Dr. Biclar, who gave him employment and
provided lodging for his family. 48 Given all the foregoing circumstances, we can not help
but dismiss Huntoria as an unreliable witness, to say the least.
At any rate, there is another reason why we find the alleged participation of the appellant
in the killing of Lloyd Peñacerrada doubtful — it is contrary to our customs and traditions.
Under the Filipino family tradition and culture, aging parents are sheltered and insulated by
their adult children from any possible physical and emotional harm. It is therefore
improbable for the other accused who are much younger and at the prime of their
manhood, to summon the aid or allow the participation of their 65-year old 49 father, the
appellant, in the killing of their lone adversary, granting that the victim was indeed an
adversary. And considering that the appellant's residence was about one kilometer from
the scene of the crime, 50 we seriously doubt that the appellant went there just for the 18 Id., 24.
purpose of aiding his three robust male sons (Custodia Jr., Nerio, and Augusta), not to 19 Id., session of July 27, 1982, 37; see also T.S.N., of the Reinvestigation,
mention the brother and sister, Rogelio and Fausta, in the killing of Lloyd Peñacerrada, even session of January 8, 1982, at 2, Original Records, at 187, where Huntoria
if the latter were a perceived enemy. gave his age as 29 years old.
Finally, while indeed alibi is a weak defense, 51 under appropriate circumstances, like in the 20 Id., session of July 27, 1982, 41.
instant case in which the participation of the appellant is not beyond cavil it may be 21 Id., 55.
considered as exculpatory. Courts should not at once look with disfavor at the defense of 22 Id., 41.
alibi for if taken in the light of the other evidence on record, it may be sufficient to acquit 23 Id., 44, 56-57.
the accused. 52 24 Id., 45.
In fine, the guilt of the appellant has not been proven beyond reasonable doubt. 25 Id.
WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the 26 Id., 48, 63.
appellant is hereby ACQUITTED. Costs de oficio. 27 Id., 64.
SO ORDERED. 28 Id., 51.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur. 29 Id., 52, 66.
30 Id., session of July 18, 1984, 12.
Footnotes 31 Id., 6.
1 Rendered by Judge Constancio E. Jaugan. 32 Id., 14-15.
2 Decision of the Regional Trial Court, 9. 33 Rollo, id., 112.
3 Rollo, 54 and 67. 34 Id., 113.
4 Mendoza, Vicente V., J., ponente; Herrera, Manuel C. and Imperial, 35 Id., 113-114.
Jorge S., JJ., concurring. 36 Original Records, id., 7, 14-16.
5 No. L-49818, February 20, 1979, 88 SCRA 486; see also People vs. 37 Id., 4-5.
Galang, G.R. No. 70713, June 29, 1989; People vs. Centeno, L-48744, 38 Id., 1.
October 30, 1981, 108 SCRA 710; and People vs. Daniel, No. L-40330, 39 T.S.N., session on July 27, 1982, 57-59.
November 20, 1978, 86 SCRA 511. 40 REYES, THE REVISED PENAL CODE (1977), vol. 1, 68-69.
6 Rollo, id., 114. 41 People vs. Punzalan, No. 54562, August 6, 1987, 153 SCRA 1; People vs.
7 T.S.N., session of June 6, 1983. 5-9. Coronado, No. 68932, October 28, 1986, 145 SCRA 250.
8 Id., Session of May 10, 1983, 34-35. 42 People vs. Delavin, Nos. 73762-63 February 27,1987, 148 SCRA
9 Original Records, 149. 257, citing People vs. Madarang, No. L-22295, January 30, 1970, 31 SCRA
10 T.S.N., Id., session of July 27, 1982, 11. 148.
11 Autopsy Report, Original Records, id., 2-3. 43 People vs. Tulagan, No. 68620, July 22, 1986, 143 SCRA 107.
12 Decision of the Regional Trial Court, id., 3. 44 T.S.N., session of July 27, 1982, 50-51.
13 T.S.N., id., session of July 27, 1982, 17-19. 45 Original Records, id., 32-33.
14 Original Records, id., 32. 46 T.S.N., session of July 27, 1982, id., 51-52.
15 Interchangeably mentioned in the Records of the case as Jose 47 Id., 67.
Juntoria, Jose Hontoria, and Jose Huntoria. 48 Id., 67-68.
16 Original Records, Id., 81-82. 49 The appellant was already 68 years old on July 18, 1984; T.S.N., session
17 T.S.N., session of June 16, 1982, 3. of July 18, 1984, 3.

127
 50 T.S.N., id., 6.
51 People vs. Arnel Mitra, et al., No. 80405, November 24, 1989; People
vs. Berbal and Juanito, No. 71527, August 10, 1989; People vs. Nolasco,
No. 55483, July 28, 1988, 163 SCRA 623; People vs. Pecato, No. L-41008,
June 18, 1987, 151 SCRA 14.
52 People vs. Santos, No. 62072, November 11, 1985, 139 SCRA 583.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-35748 December 14, 1931
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.
Teofilo Mendoza for appellants.
Attorney-General Jaranilla for appellee.
VILLA-REAL, J.:
Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of
First Instance of Bulacan convicting them upon the information of the crime of arson as
follows: The former as principal by direct participation, sentenced to fourteen years, eight
months, and one day of cadena temporal, in accordance with paragraph 2 of article 550,
Penal Code; and the latter as accomplice, sentenced to six years and one day of presidio
mayor; and both are further sentenced to the accessories of the law, and to pay each of
the persons whose houses were destroyed by the fire, jointly and severally, the amount set
forth in the information, with costs.
Counsel appointed by the court to defend the accused- appellants de oficio, after
delivering his argument, prayed for the affirmance of the judgment with reference to the
appellant Martin Atienza, and makes the following assignments of error with reference to
Romana Silvestre, to wit:
1. The lower court erred in convincing Romana Silvestre as accomplice of the
crime charged in the information.
2. Finally, the court erred in not acquitting said defendant from the information
upon the ground of insufficient evidence, or at the least, of reasonable doubt.
The following facts were proved at the hearing beyond a reasonable doubt:
Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her
codefendant Martin Atienza from the month of March, 1930, in the barrio of Masocol,
128
municipality of Paombong, Province of Bulacan. On May 16, 1930, the complaining
husband, Domingo Joaquin, filed with the justice of the peace for that municipality, a
sworn complaint for adultery, supported by affidavits of Gerardo Cabigao and Castor de la
Cruz (Exhibit B). On the same date, May 16, 1930, the said accused were arrested on a
warrant issued by said justice of the peace. On the 20th of the month, they were released
on bail, each giving a personal bond of P6,000. Pending the preliminary investigation of the
case, the two defendants begged the municipal president of Paombong, Francisco Suerte
Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the complaint,
the two accused binding themselves to discontinue cohabitation, and promising not to live
again in the barrio of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The
municipal president transmitted the defendants' petition to the complaining husband,
lending it his support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion
for the dismissal of his complaint. In consideration of this petition, the justice of the peace of
Paombong dismissed the adultery case commenced against the accused, and cancelled
the bonds given by them, with the costs against the complainant.
The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the
same municipality of Paombong.
About November 20, 1930, the accused Romana Silvestre met her son by her former
marriage, Nicolas de la Cruz, in the barrio of Santo Niño, and under pretext of asking him for
some nipa leaves, followed him home to the village of Masocol, and remained there. The
accused, Martin Atienza, who had continued to cohabit with said Romana Silvestre,
followed her and lived in the home of Nicolas de la Cruz. On the night of November 25,
1930, while Nicolas de la Cruz and his wife, Antonia de la Cruz, were gathered together
with the appellants herein after supper, Martin Atienza told said couple to take their
furniture out of the house because he was going to set fire to it. Upon being asked by
Nicolas and Antonia why he wanted to set fire to the house, he answered that that was the
only way he could be revenged upon the people of Masocol who, he said, had instigated
the charge of adultery against him and his codefendant, Romana Silvestre. As Martin
Atienza was at that time armed with a pistol, no one dared say anything to him, not even
Romana Silvestre, who was about a meter away from her codefendant. Alarmed at what
Martin Atienza had said, the couple left the house at once to communicate with the barrio
lieutenant, Buenaventura Ania, as to what they had just heard Martin Atienza say; but they
had hardly gone a hundred arms' length when they heard cries of "Fire! Fire!" Turning back
they saw their home in flames, and ran back to it; but seeing that the fire had assumed
considerable proportions, Antonia took refuge in the schoolhouse with her 1 year old babe
in her arms, while Nicolas went to the home of his parents-in-law, took up the furniture he
had deposited there, and carried it to the schoolhouse. The fire destroyed about forty-eight
houses. Tomas Santiago coming from the barrio artesian well, and Tomas Gonzalez,
teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61 years of age,
coming from their homes, to the house on fire, saw Martin Atienza going away from the
house where the fire started, and Romana Silvestre leaving it.lawphil.net
As stated in the beginning, counsel appointed by this court to defend the accused-
appellant de oficio, prays for the affirmance of the judgment appealed from with
reference to defendant Martin Atienza. The facts related heretofore, proved beyond a
reasonable doubt at the hearing, justify this petition of the de oficio counsel, and establish
beyond a reasonable doubt said defendant's guilt of arson as charged, as principal by
direct participation.
With respect to the accused-appellant Romana Silvestre, the only evidence of record
against her are: That, being married, she lived adulterously with her codefendant Martin
Atienza, a married man; that both were denounced for adultery by Domingo Joaquin,
Romana Silvestre's second husband; that in view of the petition of the accused, who
promised to discontinue their life together, and to leave the barrio of Masocol, and through
the good offices of the municipal president of Paombong, the complaining husband asked
for the dismissal of the complaint; that in pursuance of their promise, both of the accused
went to lived in the barrio of Santo Niño, in the same municipality; that under pretext for
some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who had gone
to the barrio of Santo Niño, Romana Silvestre followed him to his house in the barrio of
Masocol on November 23, 1930, and remained there; that her codefendant, Martin Atienza
followed her, and stayed with his coaccused in the same house; that on the night of
November 25, 1930, at about 8 o'clock, while all were gathered together at home after
supper, Martin Atienza expressed his intention of burning the house as the only means of
taking his revenge on the Masocol resident, who had instigated Domingo Joaquin to file
the complaint for adultery against them, which compelled them to leave the barrio of
Masocol; that Romana Silvestre listened to her codefendant's threat without raising a
protest, and did not give the alarm when the latter set fire to the house. Upon the strength
of these facts, the court below found her guilty of arson as accomplice.
Article 14 of the Penal Code, considered in connection with article 13, defines an
accomplice to be one who does not take a direct part in the commission of the act, who
does not force or induce other to commit it, nor cooperates in the commission of the act by
another act without which it would not have been accomplished, yet cooperates in the
execution of the act by previous or simultaneous actions.
Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of
arson committed by her codefendant Martin Atienza? Is it her silence when he told the
spouses, Nicolas de la Cruz and Antonia de la Cruz, to take away their furniture because he
was going to set fire to their house as the only means of revenging himself on the barrio
residents, her passive presence when Martin Atienza set fire to the house, where there is no
129
evidence of conspiracy or cooperation, and her failure to give the alarm when the house
was already on fire?
The complicity which is penalized requires a certain degree of cooperation, whether moral,
through advice, encouragement, or agreement, or material, through external acts. In the
case of the accused-appellant Romana Silvestre, there is no evidence of moral or material
cooperation, and none of an agreement to commit the crime in question. Her mere
presence and silence while they are simultaneous acts, do not constitute cooperation, for it
does not appear that they encouraged or nerved Martin Atienza to commit the crime of
arson; and as for her failure to give the alarm, that being a subsequent act it does not
make her liable as an accomplice.
The trial court found the accused-appellant Martin Atienza guilty of arson, defined and
penalized in article 550, paragraph 2, of the Penal Code, which reads as follows:
ART. 550. The penalty of cadena temporal shall be imposed upon:
xxx xxx xxx
2. Any person who shall set fire to any inhabited house or any building in which
people are accustomed to meet together, without knowing whether or not such
building or house was occupied at the time, or any freight train in motion, if the
damage caused in such cases shall exceed six thousand two hundred and
fifty pesetas.
While the defendant indeed knew that besides himself and his codefendant, Romana
Silvestre, there was nobody in De la Cruz's house at the moment of setting fire to it, he
cannot be convicted merely arson less serious than what the trial court sentenced him for,
inasmuch as that house was the means of destroying the others, and he did not know
whether these were occupied at the time or not. If the greater seriousness of setting fire to
an inhabited house, when the incendiary does not know whether there are people in it at
the time, depends upon the danger to which the inmates are exposed, not less serious is
the arson committed by setting fire to inhabited houses by means of another inhabited
house which the firebrand knew to be empty at the moment of committing the act, if he
did not know whether there were people or not in the others, inasmuch as the same
danger exists.
With the evidence produced at the trial, the accused-appellant Martin Atienza might have
been convicted of the crime of arson in the most serious degree provided for in article 549
of the Penal Code, if the information had alleged that at the time of setting fire to the
house, the defendant knew that the other houses were occupied, taking into account that
barrio residents are accustomed to retire at the tolling of the bell for the souls in purgatory,
i.e., at 8 o'clock at night.
For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere
passive presence at the scene of another's crime, mere silence and failure to give the
alarm, without evidence of agreement or conspiracy, do not constitute the cooperation
required by article 14 of the Penal Code for complicity in the commission of the crime
witnessed passively, or with regard to which one has kept silent; and (2) he who desiring to
burn the houses in a barrio, without knowing whether there are people in them or not, sets
fire to one known to be vacant at the time, which results in destroying the rest, commits the
crime of arson, defined and penalized in article 550, paragraph 2, Penal Code.
By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with
reference to the accused-appellant Martin Atienza, and reversed with reference to the
accused-appellant Romana Silvestre, who is hereby acquitted with
one-half of the costs de oficio. So ordered.
Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and Imperial, JJ.,
concur.
FIRST DIVISION
[G.R. No. 5126. September 2, 1909. ]
THE UNITED STATES, Plaintiff-Appellee, v. CATALINO APOSTOL, Defendant-Appellant.
Francisco Ortigas for Appellant.
Solicitor-General Harvey for Appellee.
SYLLABUS
1. ARSON; EDIFICE USED AS DWELLING. — The words "Edifice used as a dwelling" in
paragraph 1 of article 553 of the Penal Code, signify and edifice intended for human
habitation, in an uninhabited place, at a time when it is unoccupied.
DECISION
ARELLANO, C.J. :
130
The judgment entered in this case by the Court of First Instance of Nueva Ecija finds that on
the 16th of December, 1907, five individuals, among them being the accused herein, went
to the house where Pedro Tabilisima, Celestino Vergara, and Tranquilino Manipul were
living, and there inquired after some carabaos that had disappeared, and because these
above-mentioned inmates answered that they knew nothing about the matter, ordered
them to leave the house, but as the three men named above refused to do so, the
accused, Catalino Apostol, set fire to the hut and the same was burnt down.
In the opinion of the trial court the responsibility of the accused has been fully established
by the testimony of the injured parties. And inasmuch as,, according to the same, the act
comes within the provisions of article 549 of the Penal Code, Catalino Apostol was
sentenced to sixteen years and one day of cadena temporal, to the accessories of the
law, to indemnity the value of the burnt hut in the sum of P1, and to pay the costs.
An appeal having been taken to this court, the defense claimed, on behalf of the offender:
(1) The absence of proof of criminal intent; (2) that in view of the fact that the burnt hut was
situated in an uninhabited place, it is not proper to apply article 549, but article 554 of the
Penal Code.
Criminal intent as well as the will to commit a crime are always presumed to exist on the
part of the person who executes an act which the law punishes, unless the contrary shall
appear. (Art. 1, Penal Code.)
As to the circumstances connected with the burning of the hut, Pedro Tabilisima testified
that he and his friends were in the same; that the accused and his companions arrived at 8
p.m. and questioned them about carabaos that they said had been stolen from them; that
after they replied that they knew nothing, the former set fire to the house and they jumped
out of it; that the witness and two companions lived in the house; that it was situated in an
uninhabited place, surrounded by fields; that the nearest houses were far away, and cries
could not be heard from one house to another; and that the burnt house was not worth
more than P1, because it was a small one, the witness himself having constructed it.
Celestino Vergara says that several individuals arrived at 8 o’clock at night, asked them for
carabaos that they claimed to have lost, wounded Tranquilino Manipul, who was asleep,
and Pedro Tabilisima, forced them to leave the house, and as they did not want to do so
for fear of being assaulted the accused set fire to the same; they tried to put out the fire as
long as they could, but when no longer able jumped out of the house. The house was in an
uninhabited locality, in the fields, the nearest house being a small store to which the cry of
a person might carry, and the neighboring houses could be seen.
Tranquilino Manipul testified in almost the same terms as this last witness. The argument
which the defense advances, based on article 554, which in connection with 553 punishes
the setting fire to a building intended for habitation, in an uninhabited place, does not
apply, because the article in question refers to an edifice intended for human habitation in
an uninhabited place at a time when the same is unoccupied. It is article 549, which
punishes with the very severe penalties of cadena temporal to cadena perpetua "those
who shall set fire to any edifice, farmhouse, hut, shed, or vessel in port, with knowledge that
one or more persons were within the same," that must be applied.
The law must be applied as laid down in the abovequoted excerpt.
But the court, in view of the nature of the crime and considering the circumstances
attending the same, recognizes the extreme severity of the penalty; therefore we apply the
remedy afforded it by article 2, paragraph 2, of the Penal Code, when a strict application
of the provisions of the code would result in an excessive penalty, taking into consideration
the degree of malice and the injury caused by the crime.
For the reasons above set forth the judgment appealed from is hereby affirmed with costs
against the Appellant. Ten days from date let a confirming judgment be entered, and ten
days thereafter let the case be remanded to the lower court for action.
Without prejudice to the immediate execution of the judgment, let the clerk of this court, as
provided in the said article 2 of the Penal Code, respectfully address a communication to
the Honorable, the Governor-General of these Islands, giving the result of this decision and
the sentence, requesting him, should he so desire, to make use of the prerogative with
which he is invested in order to reduce or mitigate the penalty imposed. So ordered.
Torres, Johnson, Carson and Moreland, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6486 March 2, 1911
131
THE UNITED STATES, plaintiff-appellee,
vs.
RAFAEL B. CATOLICO, defendant-appellant.
B. Pobre for appellant.
Acting Attorney-General Harvey for appellee.
MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of the Province of Cagayan,
Hon. Charles A. Low presiding, convicting the defendant of the crime of malversation of
public funds and sentencing him to two months' imprisonment, to perpetual disqualification
to hold public office or public employment of any kind, and to the payment of the costs.
It appears from the proofs of the prosecution that the accused as justice of the peace of
Baggao, Province of Cagayan, on the 2d day of October, 1909, had before him sixteen
separate civil cases commenced by Juan Canillas against sixteen distinct individuals, each
one for damages resulting from a breach of contract; that said cases were all decided by
the appellant in favor of the plaintiff; that each one of the defendant in said cases
appealed from the decision of the justice of the peace and deposited P16 as required by
law, at the same time giving a bond of P50, each one of which was approved by the court;
that on the 12th day of said month the plaintiff in said cases presented a writing to the
appellant as said justice of the peace, alleging that the sureties on the said bonds were
insolvent and later demonstrated this to the satisfaction of the appellant; that thereupon
the latter ordered the cancellation of the said bonds and, in the same order, required each
of the appellants to file another bond within fifteen days, that, inasmuch as none of the
appellants in said causes presented new bonds within the time fixed, the plaintiff in said
causes applied to the appellant, as said court, for an order declaring final the judgment
entered in each of the said sixteen cases and commanding the execution of the same, at
the same time asking that the sums deposited by the defendants in said actions be
attached (so called in the record) and delivered to him in satisfaction of said judgments;
that the accused acceded to the petition of the plaintiff, ordered said sums attached and
delivered same to the plaintiff, at the same time requiring of the plaintiff a bond of P50 for
each attachment, conditioned that he would respond for the damages which should result
from such attachment.
After this attachment (so called) the attorney for the defendants in the said sixteen cases
presented a complaint against the appellant to the Court of First Instance, by virtue of
which said court ordered that the plaintiff, Juan Canillas, deliver to the clerk of the Court of
First Instance the sums deposited by the defendants in said actions. Canillas obeyed the
order of the court and made the delivery as required.
Upon these facts the Acting Attorney-General recommends the acquittal of the accused.
We are in entire accord with that recommendation. The case made against the appellant
lacks many of the essential elements required by law to be present in the crime of
malversation of public funds. The accused did not convert the money to his own use or to
the use of any other person; neither did he feloniously permit anybody else to convert it.
Everything he did was done in good faith under the belief that he was acting judicially and
correctly. The fact that he ordered the sums, deposited in his hands by the defendants —
appellants in the sixteen actions referred to, attached for the benefit of the plaintiff in those
actions, after the appeals had been dismissed and the judgments in his court had become
final, and that he delivered the said sums to the plaintiff in satisfaction of the judgment
which he held in those cases, can not be considered an appropriation or a taking of said
sums within the meaning of Act No. 1740. He believed that, as presiding officer of the court
of justice of the peace, he had a perfect right under the law to cancel the bonds when it
was clearly shown to him that the sureties thereon were insolvent, to require the filing of
new undertakings, giving the parties ample time within which to do so, to dismiss the
appeals in case said undertakings were not filed, and to declare the judgment final. He
believed that after said appeals had been dismissed and said judgment had become final,
the sums deposited were subject to be applied in payment of the judgments in the actions
in which said sums had been deposited and that he was acting judicially and legally in
making such applications.
To constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference to duty or to
consequences, as, in law, is equivalent to criminal intent. The maxim is, actus non facit
reum, nisi mens rea — a crime is not committed if the mind of the person performing the act
complained of be innocent.
In the case at bar the appellant was engaged in exercising the functions of a court of
justice of the peace. He had jurisdictions of the actions before him. He had a right and it
was his duty to require the payment by each appellant of P16, as well as the giving of a
proper undertaking with solvent sureties. While, in dismissing the appeals and delivering the
P256 to the plaintiff in the said cases, he may have exceeded his authority as such court
and passed beyond the limits of his jurisdiction and power, a question we do not now
discuss or decide, it was, so far as appears from the record, at most a pure mistake of
judgment, an error of the mind operating upon a state of facts. Giving the act complained
of the signification most detrimental to the appellant, it, nevertheless, was simply the result
of the erroneous exercise of the judicial function, and not an intention to deprive any
person of his property feloniously. His act had back of it the purpose to do justice to litigants
and not to embezzle property. He acted that honest debts might be paid to those to whom
they were legally and justly due, and not to enrich himself or another
by criminalmisappropriation. It was an error committed by a court, not an act done by a
criminal-minded man. It was a mistake, not a crime.
132
It is true that a presumption of criminal intention may arise from proof of the commission of
a criminal act; and the general rule is that, if it is proved that the accused committed the
criminal act charged, it will be presumed that the act was done with criminal intention, and
that it is for the accused to rebut this presumption. But it must be borne in mind that the act
from which such presumption springs must be a criminal act. In the case before us the act
was not criminal. It may have been an error; it may have been wrong and illegal in the
sense that it would have been declared erroneous and set aside on appeal or other
proceeding in the superior court. It may well be that his conduct was arbitrary to a high
degree, to such a degree in fact as properly to subject him to reprimand or even
suspension or removal from office. But, from the facts of record, it was not criminal. As a
necessary result no presumption of criminal intention arises from the act.
Neither can the presumption of a criminal intention arise from the act complained of, even
though it be admitted that the crime, if any, is that of malversation of public funds as
defined and penalized in Act No. 1740. It is true that that Act provides that "In all
prosecutions for violations of the preceding section, the absence of any of the public funds
or property of which any person described in said section has charge, and any failure or
inability of such person to produce all the funds and property properly in his charge on the
demand of any officer authorized to examine or inspect such person, office, treasury, or
depositary shall be deemed to be prima facie evidence that such missing funds or property
have been put to personal uses or used for personal ends by such person within the
meaning of the preceding section." Nevertheless, that presumption is a rebuttable one and
constitutes only a prima facie case against the person accused. If he present evidence
showing that, in fact, he has not put said funds or property to personal uses, then that
presumption is at an end and the prima facie case destroyed. In the case at bar it was
necessary for the accused to offer any such evidence, for the reason that the people's own
pleading alleged, and its own proofs presented, along with the criminal charge, facts
which showed, of themselves, that said money had not been put to personal uses or used
for personal ends. In other words, the prosecution demonstrated, both by the allegations in
its information filed against the accused and by its proofs on the trial, that the absence of
the funds in question was not due to the personal use thereof by the accused, thus
affirmatively and completely negativing the presumption which, under the act quoted,
arises from the absence of the funds. The presumption was never born. It never existed. The
facts which were presented for the purpose of creating such presumption were
accompanied by other facts which absolutely prevented its creation.
On the other hand, if it be admitted that the crime, if any, is that of estafa, as defined in
paragraph 5 of article 535 of the Penal Code, then the presumption just referred to does
not arise. Mere absence of the funds is not sufficient proof of conversion. Neither is the mere
failure of the accused to turn over the funds at any given time sufficient to make even
a prima facie case. (U. S. vs. Morales, 15 Phil. Rep., 236; U. S. vs. Dominguez, 2 Phil. Rep.,
580.) Conversion must be affirmatively proved, either by direct evidence or by the
production of facts from which conversion necessarily follows. (U. S. vs. Morales, supra.)
The judgment of conviction is reversed and the defendant ordered discharged from
custody forthwith.
Arellano, C. J., Mapa and Trent, JJ., concur.
Separate Opinions
CARSON, J., concurring:
I am strongly inclined to doubt the bona fides of the defendant in the transactions herein
set out, but in the absence of proof beyond a reasonable doubt upon this point I concur in
the judgment of acquittal of the crime charged in the information.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 97471 February 17, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias
"Enry," accused-appellants.
The Solicitor General for plaintiff-appellee.
Edward C. Castañeda for accused-appellants.
REGALADO, J.:
The primal issue for resolution in this case is whether accused-appellants committed the
felony of kidnapping for ransom under Article 267 of the Revised Penal Code, as charged in
the information; or a violation of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway
Robbery Law of 1974), as contended by the Solicitor General and found by the trial court;
or the offense of simple robbery punished by Paragraph 5, Article 294 of the Revised Penal
Code, as claimed by the defense.
In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon
City, Branch 103, as Criminal Case No. Q-57404 thereof, appellants were charged with
kidnapping for ransom allegedly committed in the following manner:
That on or about the 13th day of January, 1988 in Quezon City,
Philippines and within the jurisdiction of this Honorable Court, the said
133
accused, being then private individuals, conspiring together,
confederating with and mutually helping each other, did, then and
there, wilfully, unlawfully and feloniously kidnap and carry away one
MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting
ransom, to the damage and prejudice of the said offended party in such
amount as may be awarded to her under the provisions of the Civil
Code.1
On a plea of not guilty when arraigned,2 appellants went to trial which ultimately resulted in
a judgment promulgated on September 26, 1990 finding them guilty of robbery with
extortion committed on a highway, punishable under Presidential Decree No. 532, with this
disposition in the fallo thereof:
ACCORDINGLY, judgment is hereby rendered finding the accused
ISABELO PUNO and ENRIQUE AMURAO GUILTY as principals of robbery
with extortion committed on a highway and, in accordance with P.D.
532, they are both sentenced to a jail term of reclusion perpetua.
The two accused are likewise ordered to pay jointly and severally the
offended private victim Ma. Socorro M. Sarmiento the sum of P7,000.00
as actual damages and P3,000.00 as temperate damages.3
Before us now in this appeal, appellants contend that the court a quo erred (1) in
convicting them under Presidential Decree No. 532 since they were not expressly charged
with a crime therein; (2) in applying Sections 4 and 5, Rule 120 of the Rules of Court since
the charge under said presidential decree is not the offense proved and cannot rightly be
used as the offense proved which is necessarily included in the offense charged.4
For the material antecedents of this case, we quote with approval the following counter-
statement of facts in the People's brief5 which adopted the established findings of the
court a quo, documenting the same with page references to the transcripts of the
proceedings, and which we note are without any substantial divergence in the version
proffered by the defense.
This is a prosecution for kidnapping for ransom allegedly done on
January 13, 1988 by the two accused (tsn, Jan. 8, 1990, p. 7).
Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta
Avenue, Quezon City called Nika Cakes and Pastries. She has a driver of
her own just as her husband does (Ibid., pp. 4-6).
At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo
Puno, who is the personal driver of Mrs. Sarmiento's husband (who was
then away in Davao purportedly on account of local election there)
arrived at the bakeshop. He told Mrs. Socorro that her own driver Fred
had to go to Pampanga on an emergency (something bad befell a
child), so Isabelo will temporary (sic) take his place (Id., pp. 8-9).
Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she
got into the Mercedes Benz of her husband with Isabelo on (sic) the
wheel. After the car turned right in (sic) a corner of Araneta Avenue, it
stopped. A young man, accused Enrique Amurao, boarded the car
beside the driver (Id., pp. 9-10).
Once inside, Enrique clambered on top of the back side of the front seat
and went onto where Ma. Socorro was seated at the rear. He poke (sic)
a gun at her (Id., p. 10).
Isabelo, who earlier told her that Enrique is his nephew announced,
"ma'm, you know, I want to get money from you." She said she has
money inside her bag and they may get it just so they will let her go. The
bag contained P7,000.00 and was taken (Id., pp. 11-14).
Further on, the two told her they wanted P100,000.00 more. Ma. Socorro
agreed to give them that but would they drop her at her gas station in
Kamagong St., Makati where the money is? The car went about the Sta.
Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed.
Enrique's gun was menacingly storing (sic) at her soft bread (sic) brown,
perfumed neck. He said he is an NPA and threatened her (Id., p.15).
The car sped off north towards the North superhighway. There Isabelo,
Beloy as he is called, asked Ma. Socorro to issue a check for P100,000.00.
Ma. Socorro complied. She drafted 3 checks in denominations of two for
P30 thousand and one for P40 thousand. Enrique ordered her to swallow
a pill but she refused (Id., pp. 17-23).
Beloy turned the car around towards Metro Manila. Later, he changed
his mind and turned the car again towards Pampanga. Ma. Socorro,
according to her, jumped out of the car then, crossed to the other side
of the superhighway and, after some vehicles ignored her, she was finally
able to flag down a fish vendors van. Her dress had blood because,
according to Ma. Socorro, she fell down on the ground and was injured
when she jumped out of the car. Her dress was torn too (Id., pp. 23-26).
On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM
(Id., p. 27).
Both accused were, day after, arrested. Enrique was arrested trying to
encash Ma. Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18,
1989, pp. 10-13)6
134
As observed by the court below, the defense does not dispute said narrative of
complainant, except that, according to appellant Puno, he stopped the car at North
Diversion and freely allowed complainant to step out of the car. He even slowed the car
down as he drove away, until he saw that his employer had gotten a ride, and he claimed
that she fell down when she stubbed her toe while running across the highway.7
Appellants further testified that they brought the Mercedez Benz car to Dolores, San
Fernando, Pampanga and parked it near a barangay or police outpost. They thereafter
ate at a restaurant and divided their loot.8 Much later, when he took the stand at the trial
of this case, appellant Puno tried to mitigate his liability by explaining that he was in dire
need of money for the medication of his ulcers.9
On these relatively simple facts, and as noted at the start of this opinion, three theories
have been advanced as to what crime was committed by appellants. The trial court
cohered with the submission of the defense that the crime could not be kidnapping for
ransom as charged in the information. We likewise agree.
Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination
of the crime for which the accused should be held liable in those instances where his acts
partake of the nature of variant offenses, and the same holds true with regard to the
modifying or qualifying circumstances thereof, his motive and specific intent in perpetrating
the acts complained of are invaluable aids in arriving at a correct appreciation and
accurate conclusion thereon.
Thus, to illustrate, the motive of the accused has been held to be relevant or essential to
determine the specific nature of the crime as, for instance, whether a murder was
committed in the furtherance of rebellion in which case the latter absorbs the former, or
whether the accused had his own personal motives for committing the murder
independent of his membership in the rebellious movement in which case rebellion and
murder would constitute separate offenses. 10 Also, where injuries were inflicted on a person
in authority who was not then in the actual performance of his official duties, the motive of
the offender assumes importance because if the attack was by reason of the previous
performance of official duties by the person in authority, the crime would be direct assault;
otherwise, it would only be physical injuries. 11
In the case at bar, there is no showing whatsoever that appellants had any motive,
nurtured prior to or at the time they committed the wrongful acts against complainant,
other than the extortion of money from her under the compulsion of threats or intimidation.
This much is admitted by both appellants, without any other esoteric qualification or
dubious justification. Appellant Puno, as already stated, candidly laid the blame for his
predicament on his need for funds for, in his own testimony, "(w)hile we were along the way
Mam (sic) Corina was telling me "Beloy, I know your family very well and I know that your
(sic) not (a) bad person, why are you doing this?" I told her "Mam, (sic), because I need
money and I had an ulcer and that I have been getting an (sic) advances from our office
but they refused to give me any bale (sic). . . ." 12
With respect to the specific intent of appellants vis-a-vis the charge that they had
kidnapped the victim, we can rely on the proverbial rule of ancient respectability that for
this crime to exist, there must be indubitable proof that
the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and
not where such restraint of her freedom of action was merely an incident in the commission
of another offense primarily intended by the offenders. Hence, as early as United States
vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been held that the detention
and/or forcible taking away of the victims by the accused, even for an appreciable period
of time but for the primary and ultimate purpose of killing them, holds the offenders liable
for taking their lives or such other offenses they committed in relation thereto, but the
incidental deprivation of the victims' liberty does not constitute kidnapping or serious illegal
detention.
That appellants in this case had no intention whatsoever to kidnap or deprive the
complainant of her personal liberty is clearly demonstrated in the veritably confessional
testimony of appellant Puno:
Q At what point did Mrs. Sarmiento handed (sic) the
bag containing the P7,000.00 to your nephew?
A Santo Domingo Exit.
Q And how about the checks, where were you
already when the checks was (sic) being handed to
you?
A Also at the Sto. Domingo exit when she signed the
checks.
Q If your intention was just to robbed (sic) her, why is it
that you still did not allow her to stay at Sto. Domingo,
after all you already received the money and the
checks?
A Because we had an agreement with her that when
she signed the checks we will take her to her house at
Villa (sic) Verde.
Q And why did you not bring her back to her house at
Valle Verde when she is (sic) already given you the
checks?
A Because while we were on the way back I (sic)
came to my mind that if we reach Balintawak or some
other place along the way we might be
135
apprehended by the police. So when we reached
Santa Rita exit I told her "Mam (sic) we will already
stop and allow you to get out of the car." 16
Neither can we consider the amounts given to appellants as equivalent to or in the nature
of ransom, considering the immediacy of their obtention thereof from the complainant
personally. Ransom, in municipal criminal law, is the money, price or consideration paid or
demanded for redemption of a captured person or persons, a payment that releases from
captivity. 17 It can hardly be assumed that when complainant readily gave the cash and
checks demanded from her at gun point, what she gave under the circumstances of this
case can be equated with or was in the concept of ransom in the law of kidnapping. These
were merely amounts involuntarily surrendered by the victim upon the occasion of a
robbery or of which she was summarily divested by appellants. Accordingly, while we hold
that the crime committed is robbery as defined in Article 293 of the Code, we, however,
reject the theory of the trial court that the same constitutes the highway robbery
contemplated in and punished by Presidential Decree No. 532.
The lower court, in support of its theory, offers this ratiocination:
The court agrees that the crime is robbery. But it is also clear from the
allegation in the information that the victim was carried away and
extorted for more money. The accused admitted that the robbery was
carried on from Araneta Avenue up to the North Superhighway. They
likewise admitted that along the way they intimidated Ma. Socorro to
produce more money that she had with her at the time for which reason
Ma. Socorro, not having more cash, drew out three checks. . . .
In view of the foregoing the court is of the opinion that the crimes
committed is that punishable under P.D. 532 (Anti-Piracy and Anti-
Highway Robbery Law of 1974) under which where robbery on the
highway is accompanied by extortion the penalty is reclusion
perpetua.18
The Solicitor General concurs, with the observation that pursuant to the repealing clause in
Section 5 of said decree, "P.D. No- 532 is a modification of the provisions of the Revised
Penal Code, particularly Article 267 which
are inconsistent with it." 19 Such opinion and complementary submission consequently
necessitate an evaluation of the correct interplay between and the legal effects of
Presidential Decree No. 532 on the pertinent Provisions of the Revised Penal Code, on
which matter we are not aware that any definitive pronouncement has as yet been made.
Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a
modification of Article 267 of the Revised Penal Code on kidnapping and serious illegal
detention, but of Articles 306 and 307 on brigandage. This is evident from the fact that the
relevant portion thereof which treats of "highway robbery" invariably uses this term in the
alternative and synonymously with brigandage, that is, as "highway robbery/brigandage."
This is but in line with our previous ruling, and which still holds sway in criminal law, that
highway robbers (ladrones) and brigands are synonymous. 20
Harking back to the origin of our law on brigandage (bandolerismo) in order to put our
discussion thereon in the proper context and perspective, we find that a band of brigands,
also known as highwaymen or freebooters, is more than a gang of ordinary robbers.
Jurisprudence on the matter reveals that during the early part of the American occupation
of our country, roving bands were organized for robbery and pillage and since the then
existing law against robbery was inadequate to cope with such moving bands of outlaws,
the Brigandage Law was passed. 21
The following salient distinctions between brigandage and robbery are succinctly
explained in a treatise on the subject and are of continuing validity:
The main object of the Brigandage Law is to prevent the formation of
bands of robbers. The heart of the offense consists in the formation of a
band by more than three armed persons for the purpose indicated in art.
306. Such formation is sufficient to constitute a violation of art. 306. It
would not be necessary to show, in a prosecution under it, that a
member or members of the band actually committed robbery or
kidnapping or any other purpose attainable by violent means. The crime
is proven when the organization and purpose of the band are shown to
be such as are contemplated by art 306. On the other hand, if robbery is
committed by a band, whose members were not primarily organized for
the purpose of committing robbery or kidnapping, etc., the crime would
not be brigandage, but only robbery. Simply because robbery was
committed by a band of more than three armed persons, it would not
follow that it was committed by a band of brigands. In the Spanish text
of art. 306, it is required that the band "sala a los campos para dedicarse
a robar." 22 (Emphasis supplied).
In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the
purpose is only a particular robbery, the crime is only robbery, or robbery in band if there
are at least four armed participants. 23 The martial law legislator, in creating and
promulgating Presidential Decree No. 532 for the objectives announced therein, could not
have been unaware of that distinction and is presumed to have adopted the same, there
being no indication to the contrary. This conclusion is buttressed by the rule on
contemporaneous construction, since it is one drawn from the time when and the
circumstances under which the decree to be construed originated. Contemporaneous
exposition or construction is the best and strongest in the law. 24
136
Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only
acts of robbery perpetrated by outlaws indiscriminately against any person or persons on
Philippine highways as defined therein, and not acts of robbery committed against only a
predetermined or particular victim, is evident from the preambular clauses thereof, to wit:
WHEREAS, reports from law-enforcement agencies reveal that lawless
elements are still committing acts of depredation upon the persons and
properties of innocent and defenseless inhabitants who travel from one
place to another, thereby disturbing the peace, order and tranquility of
the nation and stunting the economic and social progress of the people:
WHEREAS, such acts of depredations constitute . . . highway
robbery/brigandage which are among the highest forms of lawlessness
condemned by the penal statutes of all countries;
WHEREAS, it is imperative that said lawless elements be discouraged from
perpetrating such acts of depredaions by imposing heavy penalty on
the offenders, with the end in view of eliminating all obstacles to the
economic, social, educational and community progress of the people.
(Emphasis supplied).
Indeed, it is hard to conceive of how a single act of robbery against a particular person
chosen by the accused as their specific victim could be considered as committed on the
"innocent and defenseless inhabitants who travel from one place to another," and which
single act of depredation would be capable of "stunting the economic and social progress
of the people" as to be considered "among the highest forms of lawlessness condemned by
the penal statutes of all countries," and would accordingly constitute an obstacle "to the
economic, social, educational and community progress of the people, " such that said
isolated act would constitute the highway robbery or brigandage contemplated and
punished in said decree. This would be an exaggeration bordering on the ridiculous.
True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the
Revised Penal Code by increasing the penalties, albeit limiting its applicability to the
offenses stated therein when committed on the highways and without prejudice to the
liability for such acts if committed. Furthermore, the decree does not require that there be
at least four armed persons forming a band of robbers; and the presumption in the Code
that said accused are brigands if they use unlicensed firearms no longer obtains under the
decree. But, and this we broadly underline, the essence of brigandage under the Code as
a crime of depredation wherein the unlawful acts are directed not only against specific,
intended or preconceived victims, but against any and all prospective victims anywhere
on the highway and whosoever they may potentially be, is the same as the concept of
brigandage which is maintained in Presidential Decree No. 532, in the same manner as it
was under its aforementioned precursor in the Code and, for that matter, under the old
Brigandage Law. 25
Erroneous advertence is nevertheless made by the court below to the fact that the crime of
robbery committed by appellants should be covered by the said amendatory decree just
because it was committed on a highway. Aside from what has already been stressed
regarding the absence of the requisite elements which thereby necessarily puts the offense
charged outside the purview and intendment of that presidential issuance, it would be
absurd to adopt a literal interpretation that any unlawful taking of property committed on
our highways would be covered thereby. It is an elementary rule of statutory construction
that the spirit or intent of the law should not be subordinated to the letter thereof. Trite as it
may appear, we have perforce to stress the elementary caveat that he who considers
merely the letter of an instrument goes but skin deep into its meaning, 26 and the
fundamental rule that criminal justice inclines in favor of the milder form of liability in case of
doubt.
If the mere fact that the offense charged was committed on a highway would be the
determinant for the application of Presidential Decree No. 532, it would not be farfetched
to expect mischievous, if not absurd, effects on the corpus of our substantive criminal law.
While we eschew resort to a reductio ad absurdum line of reasoning, we apprehend that
the aforestated theory adopted by the trial court falls far short of the desideratum in the
interpretation of laws, that is, to avoid absurdities and conflicts. For, if a motor vehicle, either
stationary or moving on a highway, is forcibly taken at gun point by the accused who
happened to take a fancy thereto, would the location of the vehicle at the time of the
unlawful taking necessarily put the offense within the ambit of Presidential Decree No. 532,
thus rendering nugatory the categorical provisions of the Anti-Carnapping Act of
1972? 27 And, if the scenario is one where the subject matter of the unlawful asportation is
large cattle which are incidentally being herded along and traversing the same highway
and are impulsively set upon by the accused, should we apply Presidential Decree No. 532
and completely disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974?
We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the
present case was committed inside a car which, in the natural course of things, was
casually operating on a highway, is not within the situation envisaged by Section 2(e) of the
decree in its definition of terms. Besides, that particular provision precisely defines "highway
robbery/brigandage" and, as we have amply demonstrated, the single act of robbery
conceived and committed by appellants in this case does not constitute highway robbery
or brigandage.
Accordingly, we hold that the offense committed by appellants is simple robbery defined in
Article 293 and punished under Paragraph 5 of Article 294 of the Revised Penal Code
with prision correccional in its maximum period to prision mayor in its medium period.
Appellants have indisputably acted in conspiracy as shown by their concerted acts
evidentiary of a unity of thought and community of purpose. In the determination of their
respective liabilities, the aggravating circumstances of craft 29 shall be appreciated against
both appellants and that of abuse of confidence shall be further applied against appellant
Puno, with no mitigating circumstance in favor of either of them. At any rate, the
intimidation having been made with the use of a firearm, the penalty shall be imposed in
the maximum period as decreed by Article 295 of the Code.
We further hold that there is no procedural obstacle to the conviction of appellants of the
crime of simple robbery upon an information charging them with kidnapping for ransom,
since the former offense which has been proved is necessarily included in the latter offense
with which they are charged. 30 For the former offense, it is sufficient that the elements of
unlawful taking, with intent to gain, of personal property through intimidation of the owner
or possessor thereof shall be, as it has been, proved in the case at bar. Intent to gain
(animus lucrandi) is presumed to be alleged in an information where it is charged that there
was unlawful taking (apoderamiento) and appropriation by the offender of the things
subject of the robbery. 31
These foregoing elements are necessarily included in the information filed against
appellants which, as formulated, allege that they wilfully, unlawfully and feloniously
kidnapped and extorted ransom from the complainant. Such allegations, if not expressly
but at the very least by necessary implication, clearly convey that the taking of
complainant's money and checks (inaccurately termed as ransom) was unlawful, with
intent to gain, and through intimidation. It cannot be logically argued that such a charge
of kidnapping for ransom does not include but could negate the presence of any of the
elements of robbery through intimidation of persons. 32
WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is
rendered CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao
y Puno of robbery as Punished in Paragraph 5 of Article 294, in relation to Article 295, of the
28 Revised Penal Code and IMPOSING on each of them an indeterminate sentence of four (4)
years and two (2) months of prision correccional, as minimum, to ten (10) years of prision
mayor, as maximum, and jointly and severally pay the offended party, Maria del Socorro M.
Sarmiento, the amounts of P7,000.00 as actual damages and P20,000.00 as moral
damages, with costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
137
 FIRST DIVISION
G.R. No. L-66884 May 28, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VICENTE TEMBLOR alias "RONALD," defendant-appellant.
The Solicitor General for plaintiff-appellee.
Wilfred D. Asis for defendant-appellant.
GRIÑO-AQUINO, J.:
The accused-appellant Vicente Temblor alias "Ronald" was charged with the crime of
murder in Criminal Case No. 1809 of the Court of First Instance (now Regional Trial Court) of
Agusan del Norte and Butuan City for shooting to death Julius Cagampang. The
information alleged:
That on or about the evening of December 30, 1980 at Talo-ao,
Buenavista, Agusan del Norte, Philippines and within the jurisdiction of
this Honorable Court, the said accused conspiring, and confederating
with one another with Anecito Ellevera who is at large, did then and
there wilfully, unlawfully and feloniously, with treachery and with intent to
kill, attack, assault and shoot with firearms one Julius Cagampang, hitting
the latter on the vital parts of the body thereby inflicting mortal wounds,
causing the direct and instantaneous death of the said Julius
Cagampang.
CONTRARY TO LAW: Article 248 of the Revised Penal Code.
Upon arraignment on June 8, 1982, he entered a plea of not guilty. After trial, he was
convicted and sentenced to suffer the penalty of reclusion perpetua, with the accessory
penalties thereof under Articles 41 and 42 of the Revised Penal Code, and to indemnify the
heirs of the victim in the amount of P12,000 without subsidiary imprisonment in case of
insolvency. He appealed.
The evidence of the prosecution showed that at about 7:30 in the evening of December
30, 1980, while Cagampang, his wife and their two children, were conversing in the store
adjacent to their house in Barangay Talo-ao, Buenavista, Province of Agusan del Norte, the
accused Vicente Temblor alias Ronald, arrived and asked to buy a half-pack of Hope
cigarettes. While Cagampang was opening a pack of cigarettes, there was a sudden burst
of gunfire and Cagampang instantly fell on the floor, wounded and bleeding on the head.
His wife Victorina, upon seeing that her husband had been shot, shouted her husband's
name "Jul" Two persons, one of whom she later Identified as the accused, barged into the
interior of the store through the main door and demanded that she brings out her
husband's firearm. "Igawas mo ang iyang armas!" ("You let out his firearm!") they shouted.
138
The accused fired two more shots at the fallen victim. Terrified, Victorina hurried to get the
"maleta" (suitcase) where her husband's firearm was hidden. She gave the suitcase to the
accused who, after inspecting its contents, took her husband's .38 caliber revolver, and
fled.
In 1981, some months after the incident, Victorina was summoned to the Buenavista police
station by the Station Commander Milan, where she saw and Identified the accused as the
man who killed her husband.
The accused's defense was an alibi. He alleged that from 4:00 o'clock in the afternoon of
December 30, 1980, he and his father had been in the house of Silverio Perol in Barangay
Camagong, Nasipit, Agusan del Norte, where they spent the night drinking over a
slaughtered dog as "pulutan," until 8:00 o'clock in the morning of the following day,
December 31, 1980.
The accused and his companion, admittedly members of the dreaded NPA (New People's
Army) were not apprehended earlier because they hid in the mountains of Malapong with
other members- followers of the New People's Army. Temblor surrendered to Mayor Dick
Carmona of Nasipit during the mass surrender of dissidents in August, 1981. He was arrested
by the Buenavista Police at the Buenavista public market on November 26, 1981 and
detained at the Buenavista municipal jail.
The accused capitalized the fact that the victim's widow, Victorina, did not know him by
name. That circumstance allegedly renders the Identification of the accused, as the
perpetrator of her husband's killing, insufficient. However, during the trial, the accused was
positively identified by the widow who recognized him because she was less than a meter
away from him inside the store which was well lighted inside by a 40-watt flourescent lamp
and by an incandescent lamp outside. Her testimony was corroborated by another
prosecution witness — a tricycle driver, Claudio Sabanal — who was a long-time
acquaintance of the accused and who knew him as "Ronald." He saw the accused in the
store of Cagampang at about 7:30 o'clock in the evening of December 30, 1980. He heard
the gunshots coming from inside the store, and saw the people scampering away.
Dr. Alfredo Salonga who issued the post-mortem examination report certified that the
victim sustained three (3) gunshot wounds.
Rebutting the accused's alibi, the prosecution presented a Certification of the Nasipit
Lumber Company's Personnel Officer, Jose F. Tinga (Exh. D), and the NALCO Daily Time
Record of Silverio Perol (Exh. D), showing that Perol was not at home drinking with the
accused and his father, but was at work on December 30, 1980 from 10:50 o'clock in the
evening up to 7:00 o'clock in the morning of December 31, 1980. The accused did not
bother to overcome this piece of rebuttal evidence.
In this appeal, the appellant alleges that the court a quo erred:
 1. in finding that he was positively identified by the prosecution witness as
the killer of the deceased Julius Cagampang; and
2. in rejecting his defense of allbi.
The appeal deserves no merit. Was the accused positively Identified as the killer of
Cagampang? The settled rule is that the trial court's assessment of the credibility of
witnesses while testifying is generally binding on the appellate court because of its superior
advantage in observing their conduct and demeanor and its findings, when supported by
convincingly credible evidence as in the case at bar, shall not be disturbed on appeal
(People vs. Dava, 149 SCRA, 582).<äre||anº•1àw>
The minor inconsistencies in the testimony of the eyewitness Victorina Vda. de Cagampang
did not diminish her credibility, especially because she had positively Identified the
accused as her husband's assailant, and her testimony is corroborated by the other
witnesses. Her testimony is credible, probable and entirely in accord with human
experience.
Appellant's self-serving and uncorroborated alibi cannot prevail over the positive
Identification made by the prosecution witnesses who had no base motives to falsely
accuse him of the crime. Furthermore, the rule is that in order for an alibi to be acceptable
as a defense, it is not enough that the appellant was somewhere else when the crime was
committed; it must be demonstrated beyond doubt that it was physically impossible for him
to be at the scene of the crime. Here it was admitted that Perol's house in barrio
Camagong, Nasipit is accessible to barrio Talo-ao in Buenavista by jeep or tricycle via a
well-paved road in a matter of 15 to 20 minutes. The testimony of the witnesses who had
positively Identified him could not be overcome by the defendant's alibi. (People vs.
Mercado, 97 SCRA 232; People vs. Venancio Ramilo, 146 SCRA 258.)
Appellant's alleged lack of motive for killing Cagampang was rejected by the trial court
which opined that the defendant's knowledge that Cagampang possessed a firearm was
motive enough to kill him as killings perpetrated by members of the New People's Army for
the sole purpose of acquiring more arms and ammunition for their group are prevalent not
only in Agusan del Norte but elsewhere in the country. It is known as the NPA's "agaw
armas" campaign. Moreover, proof of motive is not essential when the culprit has been
positively Identified (People vs. Tan, Jr., 145 SCRA 615).
The records further show that the accused and his companion fled after killing Cagampang
and taking his firearm. They hid in the mountains of Agusan del Norte. Their flight was an
implied admission of guilt (People vs. Dante Astor, 149 SCRA 325; People vs. Realon, 99
SCRA 422).
WHEREFORE, the judgment appealed from is affirmed in all respects, except as to the civil
indemnity payable to the heirs of the Julius Cagampang which is increased to P30,000.00.
SO ORDERED.
139
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-68969 January 22, 1988
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
USMAN HASSAN y AYUN, respondent.
SARMIENTO, J.:
This is a pauper's appeal of the decision 1 of the Regional Trial Court of Zamboanga City,
Ninth Judicial Region Branch XIII, dated January 25, 1984, which "finds the accused USMAN
HASSAN y AYUN guilty beyond reasonable doubt as principal of the Crime of MURDER, and
there being neither aggravating nor mitigating circumstance attending the commission of
the crime, and pursuant to Paragraph No. 1 of Article 64 of the Revised Penal Code, hereby
imposes upon the said accused the penalty of RECLUSION PERPETUA and all its accessory
penalties; to indemnify the heirs of the deceased victim Ramon Pichel, Jr. y Uro the amount
of P12,000.00 and to pay the costs." 2
Usman Hassan was accused of murder for stabbing to death Ramon Pichel, Jr. y Uro, 24,
single, and a resident of Zamboanga City. 3 At the time of his death on July 23,1981, the
deceased was employed as manager of the sand and gravel business of his father. On the
other hand, Hassan was an illiterate, 15-year-old pushcart cargador. 4
The quality of justice and the majesty of the law shine ever brightest when they are applied
with more jealousy to the poor, the marginalized, and the disadvantaged. Usman Hassan,
the herein accused-appellant, belongs to this class. At the time of the alleged commission
of the crime, he was poor, marginalized, and disadvantaged. He was a flotsam in a sea of
violence, following the odyssey of his widowed mother from one poverty-stricken area to
another in order to escape the ravages of internicine war and rebellion in Zamboanga del
Sur. In the 15 years of Hassan's existence, he and his family had to evacuate to other places
for fear of their lives, six times. His existence in this world has not even been officially
recorded; his birth has not been registered in the Registry of Births because the Samal tribe,
to which he belongs, does not see the importance of registering births and deaths.
Usman was convicted on the bases of the testimony of a lone eyewitness for the
prosecution and the sloppiness of the investigation conducted by the police investigator,
Police Corporal Rogelio Carpio of the Homicide and Arson Section of the Zamboanga City
Police Station, who also testified for the prosecution.
We rule that Usman Hassan's guilt was not proved beyond reasonable doubt and that A Yes, Sir.
Usman Hassan must, therefore, be set free. Q And the body of Ramon Pichel, Jr., was brought to the Funeraria La
The lone eyewitness for the prosecution is Jose Samson, 24 years old when he testified, Merced?
married, and a resident of Zamboanga City. On the day of the killing, he was employed at A Yes, sir,
the sand and gravel business of the father of the deceased but was jobless at the time of Q Can you recall what time was that?
his examination-in-chief on February 3, 1982. A I do not know what time was that.
He testified that he was with Ramon Pichel, Jr. at about 7:00 o'clock in the evening of July Q And it was all La Merced Funeraria that the police brought to you the
23, 1981; that he was a backrider in the motorcycle of Ramon when they went to buy accused?
mangoes at Fruit Paradise near the Barter Trade Zone in Zamboanga City that while he was A...
selecting mangoes, he saw a person stab Ramon who was seated at his red Honda Q For Identification?
motorcycle which was parked about two or three meters from the fruit stand where he A Yes, sir.
Samson) was selecting mangoes; that he saw the assailant stab Ramon "only once" and Q And he was alone when you Identified him?
that after the stabbing, the assailant ran towards the PNB Building. When asked at the cross- A Yes he was alone.
examination if he knew the assailant, Samson said, "I know him by face but I do not know Q Aside from working with the Pichel family in their sand and gravel
his name." 5 business, do you have any blood relationship with them?
This sole eyewitness recounted the stabbing thus: "While Ramoncito Pichel, Jr. was holding A Yes. sir. 6
the motorcycle with both of his hands, the assailant come from behind, held his left hand (Emphasis supplied)
and stabbed him from behind on his chest while the victim was sitting on the motorcycle." xxx xxx xxx
He claimed that he was able to see the assailant because it was very bright there that What comes as a surprise is that Samson's statement 7 which was taken only on July 25,
Ramon was facing the light of a petromax lamp, and that all these happened in front of 1981, two days after the stabbing, and sworn to only on July 27, 1981, also two days after it
the fruit stand a — distance of about 6 to 7 meters from the side of the road. was taken, or four days after the killing, was never presented or mentioned by the
Samson described the assailant as wearing a white, short-sleeved t-shirt and maong pants, prosecution at all. The information was practically forced out of Police Corporal Rogelio P.
but "he did not see if the aggressor was wearing shoes," that the assailant stabbed Ramon Carpio, a witness for the People, during his cross-examination. 8 The sworn statement
with a knife but "he did not exactly see what kind of knife it was, and he did not see how contained the following questions and answers:
long the knife was He said he brought the wounded Ramon to the Zamboanga City xxx xxx xxx
General Hospital in a tricycle. Q-14. What and please narrate it to me briefly in your
On cross-examination, Samson testified: own words, the incident you are referring?
xxx xxx xxx A-14. While I was busy selecting some mangoes, I saw
Q When you rushed Ramon Pichel, Jr. to the hospital unidentified person whom I can recognize by face if
you came to know that he was already dead, is that seen again embraced my companion Ramon Pitcher
correct? Jr. while the latter was aboard his motorcycle parked
A Yes, sir, I learned that he was already dead. within the area. That this person without much ado,
Q In the hospital, were you investigated by the police? and armed with a knife suddenly stabbed him
A They just asked the description of that person as to (Ramon). That by coincidence to this incident, our eye
his attire and his appearance. met each other and immediately thereafter, he fled
Q And it was while in the hospital that you told them the area toward the Philippine National Bank (PNB).
the description of the one who stabbed Ramon That this unidentified person was sporting a semi-long
Pichel, Jr.? hair, dressed in White Polo-Shirt (Short sleeve), maong

140
pants height to more or less 5'5, Dark Complexion.
That as this unidentified person fled the area I
immediately came to aid my companion, Ramon
Pitcher, Jr., and rushed him to Zamboanga General
Hospital, on board a Tricycle. That may companion
(Ramon) did not whispered (sic) any words to me for
he was in serious condition and few minutes later, he
expired.
Q-15. Was tills unidentified person was with
companion when he attack (sic) Ramon Pitcher Jr.?
A-15. He was alone Sir.
Q-16. Can you really Identified (sic) this person who
attacked and stabbed your companion, Ramon
Pitcher, Jr., that evening in question?
A-16. Yes, Sir,
Q-17. Do you still remember that confrontation we
made at the Office of La Merced Funeral Homes,
wherein you were confronted with one Usman Hassan,
whom this Officer brought along?
A-17. Yes, Sir.
Q-18. Was he the very person, who attacked and
stabbed your companion, Ramon Pitcher, Jr.?
A-18. Yes, Sir, he was the very person who attacked
and stabbed my companion, Ramon Pitcher, Jr., that
evening in question.
Q-19. Why?
A-19. Because his face and other physical
appearance were fully noted by me and this I cannot
forget for the rest of my life.
Q-20. Before this incident, was there any altercation
that had ensued while in the process of buying some
mangoes in that area?
A-20. None Sir.
Q-21. Were you able to note what kind of knife used
by said Usman Hassan in stabbing your companion,
Ramon Pitcher Jr.?
A-21: None Sir,
141
Q-22. Well, I have nothing more to ask of you, do you
have anything more to say, add or alter in this
statement?
A-22. No more Sir.
Q-23. Are you willing to give a supplemental
statement if needed in the future?
A-23. Yes, Sir. 9
(Emphasis supplied)
xxx xxx xxx
The version of the sole eyewitness appearing in his statement 10 is substantially the same as
that embodied in the "Case Report," Exhibit it "C", by Police Corporal Carpio, also admitted
a s Exhibit "2." This exhibit for the prosecution confirms the sworn statement of witness
Samson that an unidentified person, whom he recognized only by face, appeared and
without any provocation, the latter embraced the victim and stabbed the same allegedly
with a knife." The rest of the Case Report: is also significant in that it confirms the
confrontation between the accused and Jose Samson in the funeral parlor arranged by
the police Investigator and prosecution witness, Corporal Carpio.
xxx xxx xxx
From this end, a follow-up was made within the premises of the Old
Barter Trade, wherein the person of USMAN HASSAN Y AYUN, of Paso
Bolong, this City, was arrested in connection with the above stated
incident. That this Officer and companions arrested this person Usman
due to his physical appearance, which was fully described by victim's
companion. Jose Samson. During his arrest, a knife, measuring to more or
less seven (7) inches in blade was confiscated in his possession. The
person of Usman Hassan was brought along at the La Merced Funeral
Homes for a confrontation with victims companion, Jose Samson and in
this confrontation, Jose Samson positively Identified said Usman Hassan
as the very person who stabbed the victim.
Usman Hassan, on the other hand, denied the charges levelled against
hub and admitted ownership of said knife; claiming among other things
that he used said knife for slicing mangoes. 11
xxx xxx xxx
We hold that the evidence for the prosecution in its entirety does not satisfy the quantum of
proof — beyond reasonable doubt — required by the Constitution, the law, and applicable
jurisprudence to convict an accused person. The said evidence denies us the moral
certainty which would allow us to pronounce, without uneasiness of conscience. Usman
Hassan y Ayun guilty of the killing of the deceased Ramon Pichel, Jr. y Uro, and condemn
him to life imprisonment and in effect turning him into a flotsam again in a sea of convicted
felons in which he would be a very young stranger.
In evaluating the worth of the testimony of the lone eyewitness for the prosecution against
the denial and alibi of the accused, value judgment must not be separated from the
constitutionally guaranteed presumption of innocence.
When the evidence for the prosecution and the evidence for the
accused are weighed, the scales must be tipped in favor of the latter.
This is because of the constitutional presumtion of innocence the
accused enjoys as a counter-foil to the awesome authority of the State
that is prosecuting him.
The element of doubt, if reasonable in this case, must operate against
the inference of guilt the prosecution would draw from its evidence. That
evidence, as it happens, consists only of the uncorroborated statement
of the two policemen which, as previously observed, is flawed and
therefore suspect. 12
The testimony of Jose Samson, the lone eyewitness, is weak and unconvincing. And so with
the evidence sought to be introduced by Police Corporal Carpio. We discover, for
example, that the expert testimony of the medico-legal officer of the National Bureau of
Investigation, Dr. Valentin Bernalez, presented by the prosecution, contradicted, on
material points, the testimony of the one eyewitness, Jose Samson. While Samson averred
on the witness stand that he saw the assailant stab the deceased "from behind on his
chest" 13 only once, the NBI medico-legal officer Identified two stab wounds, one at the
front portion of the chest at the level and third rib, (sic) and another stab wound located at
the left arm posterior aspect." 14 The same medical expert also concluded from the nature
and location of the chest wound, which was the cause of death, that the same was
inflicted on the victim while the alleged accused was in front of him." 15
The investigation of this case by the Homicide/Arson Section of the Zamboanga Southern
Police Sector, 16 at Zamboanga City, particularly by Police Corporal Rogelio P. Carpio,
leaves much to be desired. For one, we are not satisfied with the procedure adopted by
the police investigators in the Identification of the accused as the assailant. We have no
doubt that Usman Hassan was "presented" alone 17 to Jose Samson by the police
investigator and prosecution witness, Police Corporal Carpio, and his police companions,
at the office of the La Merced Funeral Homes in Zamboanga City. As correctly termed by
the very evidence 18 of the prosecution, the procedure adopted by the police investigators
was a confrontation" between Jose Samson, Jr. and Usman. Earlier, on direct examination,
Corporal Carpio testified that Usman was alone when he was brought to Samson for
confrontation in the funeral parlor. However, on cross-examination, Carpio made a
turnabout by saying that the accused was Identified by Samson in a "police line-up;" this
142
tergiversation we dare say, was an afterthought, more the result of an over or careless
cross-examination, augmented by the leading questions 19 of the trial judge rather than a
fastidiousness if not sincerity, on the part of the police investigator, to honestly correct
erroneous statements in his examination-in-chief. The fact remains that both Samson and
the accused testified clearly and unequivocably that Usman was alone when presented to
Samson by Carpio. There was no such police line-up as the police investigator, to honestly
correct erreoneous statements in his examination-in-chief. The fact remains that both
Samson and the accused testified clearly and unequivocably that Usman was alone when
presented to Samson by Carpio. There was no such police investigator claimed on second
thought.
The manner by which Jose Samson, Jr. was made to confront and Identify the accused
alone at the funeral parlor, without being placed in the police line-up, was "pointedly
suggsestive, generated confidence where there was none, activated visual imagination,
and, all told, subserted his reliability as eyewitness. This unusual, coarse, and highly singular
method of Identification, which revolts against the accepted principles of scientific crime
detection, alienates the esteem of every just man, and commands neither our respect nor
acceptance." 20
Moreover, the confrontation arranged by the police investigator between the self-
proclaimed eyewitness and the accused did violence to the right of the latter to counsel in
all stages of the investigation into the commission of a crime especially at its most crucial
stage — the Identification of the accused.
As it turned out, the method of Identification became just a confrontation. At that critical
and decisive moment, the scales of justice tipped unevenly against the young, poor, and
disadvantaged accused. The police procedure adopted in this case in which only the
accused was presented to witness Samson, in the funeral parlor, and in the presence of the
grieving relatives of the victim, is as tainted as an uncounselled confession and thus falls
within the same ambit of the constitutionally entrenched protection. For this infringement
alone, the accused-appellant should be acquitted.
Moreover, aside from this slipshod Identification procedure, the rest of the investigation of
the crime and the preparation of the evidence for prosecution were done haphazardly,
perfunctorily, and superficially. Samson was not investigated thoroughly and immediately
after the incident. As previously mentioned, his statement was taken by the investigator
only two days after the murder of Ramon Pichel, Jr. and sworn only two days after it had
been taken. Similarly, there is nothing in the record to show that the fruit vendor—from
whom Samson and the deceased were buying mangoes that fateful evening and who
certainly must have witnessed the fatal stabbing—was investigated, or why he was not
investigated. Nor is any explanation given as to why the companion 21 of the accused at
the time Corporal Carpio arrested him (accused) 'sitting on a pushcart " 22 at about 8:00
P.M. (around 7:00 P.M., according to Usman) of that same evening near the scene of the
crime, was not also investigated when he could have been a material witness of the killing
or of the innocence of the accused. In addition, the knife and its scabbard, 23Confiscated
by Carpio from Usman (tucked on the right side of his waist") at the time of his arrest, were
not even subjected to any testing at all to determine the presence of human blood which
could be typed and compared with the blood type of the deceased. A crime laboratory
test — had Carpio or the prosecuting fiscal, or even the trial judge, insisted on it — would
have revealed whether or not the knife in question (confiscated from the accused by
Carpio one hour after the alleged commission of the crime) had indeed been the weapon
used to kill Ramon. The police investigator instead nonchalantly dismissed this sin of omission
by saying that the knife could have been cleaned or the bloodstain could have been
taken away. 24 This presumption of the deadly weapon's having been "cleaned" of
bloodstains is tantamount to pronouncing the accused of being guilty.
Our doubt about the guilt of the accused is further deepened by a resolution, 25 in a
separate case, 26 of Assistant City Fiscal of Zamboanga City and deputized Tanod bayan
Prosecutor Pablo Murillo, which clearly reveals that on July 24, 1981, a day after the killing of
Ramon Pichel, Jr., a similar stabbing took place at Plaza Pershing near the place of the
earlier incident, with the suspect in that frustrated homicide case being a certain Benhar
Isa, 'a notorious and a deadly police character" in Zamboanga City, with a long record of
arrests. In that resolution, Fiscal Murillo said the same Benhar Isa was tagged as 'also a
suspect in the stabbing of Ramon Pichel, Jr. to death and the stabbing of Pastor Henry
Villagracia at the Fruit Paradise, this City." The said resolution further states that "with regards
to this incident or witnesses ever testified for fear of possible reprisals." 27
The trial of Usman Hassan began on October 27, 1981. Benhar Isa himself was killed by a
policeman on August 28, 1981, while he (Isa) "was apparently under the influence of liquor
armed with a knife (was) molesting and extorting money from innocent civilians' and
"making trouble." 28 The records of the case at bar do not show any attempt on the part of
Corporal Carpio, or any other police officer, to investigate or question Benhar Isa in
connection with the killing of Pichel, Jr. Was it fear of the notorious police character that
made the police officers disregard the possible connection between the slaying of Ramon
and that of the person (Harun Acan y Arang of the Ministry of National Defense) 29 who was
allegedly stabbed by Benhar Isa a day after the killing of Ramon Jr.? And yet questioning
Isa might have provided that vital link to the resolution of Usman's guilt or innocence. But
why should the police officers investigate Isa when Usman Hassan was already in custody
and could be an available fall guy? Usman Hassan, instead, became a victim of a grave
injustice. Indeed, Usman Hassan is too poor to wage a legal fight to prove his innocence.
And he is so marginalized as to claim and deserve an honest-to-goodness, thorough, and
fair police investigation with all angles and leads pursued to their logical, if not scientific,
143
conclusions. Sadly circumstanced as he is, the authority of the State was too awesome for
him to counteract.
The appealed decision made much ado of the admission by Usman "that he was arrested
at the former barter trade, which is a place just across the place of the stabbing at the Fruit
Paradise." 30 The trial judge found it "therefore strange that on the very evening of the
stabbing incident he was still at the barter trade area by 8:00 o'clock in the evening when
he usually comes to the city proper at about 6:00 o'clock in the morning and goes home at
past 5:00 o'clock and sometimes 6:00 o'clock in the afternoon." 31 Usman's explanation —
that, at around 7:00 o'clock P.M., he was waiting for transportation to take him home —
was found by the trial court as 'flimsy and weak since he did not explain why he had to go
home late that evening." 32 But the whole trouble is nobody asked him. The trial judge did
not propound any single question to the accused, and only three to his mother on
innocuous matters, by way of clarification, if only to put on record what the mother and son
could articulate with clarity. Taking into account their poverty and illiteracy, the mother and
son needed as much, if not more, help, than the trial judge extended to the prosecution
witnesses during their examination by asking them clarificatory and mostly leading
questions. In that sense and to that extent, the accused was disadvantaged.
A fact that looms large, though mutely to testify on the innocence of the accused but the
importance of which was brushed away by the trial judge was the presence of the
accused near the scene (about 100 to 150 meters away) soon after the stabbing (he
testified at around 7:00 P.M. although Police Corporal Carpio stated it was 8:00 P.M.) where
he was found sitting on his pushcart with a companion. If he were the assailant, he would
have fled. But the trial court instead indulged in conjecture, foisting the probability that the
accused 'was lulled by a false sense of security in returning to the place (of the stabbing),
when no police officers immediately responded and appeared at the scene of the crime,"
adding 'there are numerous cases in the past where criminals return to the scene of their
crimes, for reasons only psychologist can explain." 33 It must have escaped the trial court's
attention that Usman has no criminal record, and, therefore, he could not be generally
classed with criminals. In the second place, the trial court's rationalization ignores the
biblical truism recognized by human nature and endorsed with approval by this Court that
"(T)he wicked flee when no man pursueth but the righteous are as bold as a lion." 34
And now as a penultimate observation, we could not help but note the total absence of
motive ascribed to Usman for stabbing Ramon, a complete stranger to him. While, as a
general rule, motive is not essential in order to arrive at a conviction, because, after all,
motive is a state of mind, 35 procedurally, however, for purposes of complying with the
requirement that a judgment of guilty must stem from proof beyond reasonable doubt, the
lack of motive on the part of the accused plays a pivotal role towards his acquittal. This is
especially true where there is doubt as to the Identity of the culprit 36 as when 'the
Identification is extremely tenuous," 37 as in this case.
We can not end this travail without adverting to the cavalier manner in which the trial court
disregarded the claimed young age of Usman Hassan.
The defense claims that the accused Usman Hassan is a minor, basing
such claim on the testimony of Lahunay Hassan, the mother of said
accused, who declared that her son Usman Hassan, who is one of her
four (4) children, was born in the year 1967. She testified that she was just
told by a person coming from their place about the year of the birth of
her son Usman. However on cross-examination, Lahunay Hassan cannot
even remember the date or year of birth of her other children. The failure
of Lahunay Hassan to remember the date or year of birth of her children
is of course understandable, considering that she is unschooled and she
belongs to a tribe that does not register births, deaths or marriages,
however, it is strange that she only took pains to find out the year of birth
of her son Usman. For this reason, the Court granted a motion of the
defense on September 13, 1982, to have the herein accused examined
by a competent dentist to determine his age. However, the findings of
the dentist of Zamboanga General Hospital which is marked as Exhibit "5"
shows the following: "age cannot be determined accurately under
present mouth conditions. Approximately, he can be from 14 to 21 years
of age." This simply means that the herein accused could either be 14
years of age or 21 years of age, or any age in between those
aforestated years. From the observation of this court, the accused
Usman Hassan was about 18 years of age at the time he committed this
crime and this observation is based on his personal appearance, his size
and facial features and other personal characteristics, hence he can not
be classified as a youthful offender under Article. 189 of Presendential
Decree No. 603, as ammended by Presedential Decree No. 1179. In the
case of U.S. vs. Mallari, 29 Phil. 13 and People vs. Reyes and Panganiban,
CA 48 O.G. 1022, cited in the Edition, Page 680, it was ruled by the
Supreme Court that "In cases where the age of the culprit is at issue as a
basis for claiming an exempting mitigating circumstance, it is incumbent
upon the accused to establish that circumstance ad any other elements
of defense. 38
Considering that the age of the accused could exempt him from punishment or cause the
suspension of his sentence under Articles 12 and 80, respectively of the Revised Penal
Code, if found guilty, more meticulousness and care should have been demanded of
144
medical or scientific sources, and less reliance on the observation of the judge as had
happened in this case. The preliminary findings of the dentist that the accused could be
anywhere between fourteen to twenty one years, despite the difficulty of arriving at an
accurate determination due to Hassan's mouth condition, would have placed the trial
judge on notice that there is the probability that the accused might be exempted from
criminal liability due to his young age. All the foregoing indicates that the accused had not
been granted the concern and compassion with which the poor, marginalized, and
disadvantaged so critically deserve. It is when judicial and police processes and
procedures are thoughtlessly and haphazardly observed that cries of the law and justice
being denied the poor are heard. In any event, all this would not be of any moment now,
considering the acquittal of the accused herein ordered.
WHEREFORE, the decision is hereby REVERSED, and the accused Usman Hassan y Ayun is
ACQUITTED of the crime charged. His release from confinement is hereby Ordered, unless
he is held for another legal cause. With costs de oficio.
SO ORDERED.
Yap (Chairman), Paras and Padilla, JJ., concur.
Separate Opinions
MELENCIO-HERRERA, J., concurring:
That the testimony of the lone eyewitness is weak and unconvincing.
Separate Opinions
MELENCIO-HERRERA, J., concurring:
That the testimony of the lone eyewitness is weak and unconvincing.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5272 March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is limited to the
testimony of the accused himself, because from the very nature of these facts and from the
circumstances surrounding the incident upon which these proceedings rest, no other
evidence as to these facts was available either to the prosecution or to the defense. We
think, however, that, giving the accused the benefit of the doubt as to the weight of the
evidence touching those details of the incident as to which there can be said to be any
doubt, the following statement of the material facts disclose by the record may be taken to
be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc
Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed
as a house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some
40 meters from the nearest building, and in August, 19087, was occupied solely as an
officers' mess or club. No one slept in the house except the two servants, who jointly
occupied a small room toward the rear of the building, the door of which opened upon a
narrow porch running along the side of the building, by which communication was had
with the other part of the house. This porch was covered by a heavy growth of vines for its
entire length and height. The door of the room was not furnished with a permanent bolt or
lock, and occupants, as a measure of security, had attached a small hook or catch on the
inside of the door, and were in the habit of reinforcing this somewhat insecure means of
fastening the door by placing against it a chair. In the room there was but one small
window, which, like the door, opened on the porch. Aside from the door and window,
there were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for
the night, was suddenly awakened by some trying to force open the door of the room. He
sat up in bed and called out twice, "Who is there?" He heard no answer and was
convinced by the noise at the door that it was being pushed open by someone bent upon
forcing his way into the room. Due to the heavy growth of vines along the front of the
porch, the room was very dark, and the defendant, fearing that the intruder was a robber
or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that
moment he was struck just above the knee by the edge of the chair which had been
placed against the door. In the darkness and confusion the defendant thought that the
blow had been inflicted by the person who had forced the door open, whom he supposed
to be a burglar, though in the light of after events, it is probable that the chair was merely
thrown back into the room by the sudden opening of the door against which it rested.
Seizing a common kitchen knife which he kept under his pillow, the defendant struck out
wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran
out upon the porch and fell down on the steps in a desperately wounded condition,
followed by the defendant, who immediately recognized him in the moonlight. Seeing that
145
Pascual was wounded, he called to his employers who slept in the next house, No. 28, and
ran back to his room to secure bandages to bind up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the date of the incident
just described, one of which took place in a house in which the defendant was employed
as cook; and as defendant alleges, it was because of these repeated robberies he kept a
knife under his pillow for his personal protection.
The deceased and the accused, who roomed together and who appear to have on
friendly and amicable terms prior to the fatal incident, had an understanding that when
either returned at night, he should knock at the door and acquiant his companion with his
identity. Pascual had left the house early in the evening and gone for a walk with his friends,
Celestino Quiambao and Mariano Ibañez, servants employed at officers' quarters No. 28,
the nearest house to the mess hall. The three returned from their walk at about 10 o'clock,
and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room
at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for
assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally
wounded in the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed his roommate, but said that
he did it under the impression that Pascual was "a ladron" because he forced open the
door of their sleeping room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of Pascuals suggests
itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese
roommate, and sought to frightened him by forcing his way into the room, refusing to give
his name or say who he was, in order to make Ah Chong believe that he was being
attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed to the military
hospital, where he died from the effects of the wound on the following day.
The defendant was charged with the crime of assassination, tried, and found guilty by the
trial court of simple homicide, with extenuating circumstances, and sentenced to six years
and one day presidio mayor, the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his roommate, Pascual
Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act,
in the exercise of his lawful right of self-defense.
Article 8 of the Penal Code provides that —
The following are not delinquent and are therefore exempt from criminal liability:
xxx xxx xxx
4 He who acts in defense of his person or rights, provided there are the following
attendant circumstances:
 (1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending himself.
Under these provisions we think that there can be no doubt that defendant would be
entitle to complete exception from criminal liability for the death of the victim of his fatal
blow, if the intruder who forced open the door of his room had been in fact a dangerous
thief or "ladron," as the defendant believed him to be. No one, under such circumstances,
would doubt the right of the defendant to resist and repel such an intrusion, and the thief
having forced open the door notwithstanding defendant's thrice-repeated warning to
desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be
questioned that in the darkness of the night, in a small room, with no means of escape, with
the thief advancing upon him despite his warnings defendant would have been wholly
justified in using any available weapon to defend himself from such an assault, and in
striking promptly, without waiting for the thief to discover his whereabouts and deliver the
first blow.
But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither
the defendant nor his property nor any of the property under his charge was in real danger
at the time when he struck the fatal blow. That there was no such "unlawful aggression" on
the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that
there was no real "necessity" for the use of the knife to defend his person or his property or
the property under his charge.
The question then squarely presents it self, whether in this jurisdiction one can be held
criminally responsible who, by reason of a mistake as to the facts, does an act for which he
would be exempt from criminal liability if the facts were as he supposed them to be, but
which would constitute the crime of homicide or assassination if the actor had known the
true state of the facts at the time when he committed the act. To this question we think
there can be but one answer, and we hold that under such circumstances there is no
criminal liability, provided always that the alleged ignorance or mistake or fact was not due
to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is
sufficient to negative a particular intent which under the law is a necessary ingredient of
the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes intent)
"cancels the presumption of intent," and works an acquittal; except in those cases where
the circumstances demand a conviction under the penal provisions touching criminal
negligence; and in cases where, under the provisions of article 1 of the Penal Code one
voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act
committed by him, even though it be different from that which he intended to commit.
(Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases
146
cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People,
32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only question
worthy of consideration is whether malice or criminal intent is an essential element or
ingredient of the crimes of homicide and assassination as defined and penalized in the
Penal Code. It has been said that since the definitions there given of these as well as most
other crimes and offense therein defined, do not specifically and expressly declare that the
acts constituting the crime or offense must be committed with malice or with criminal intent
in order that the actor may be held criminally liable, the commission of the acts set out in
the various definitions subjects the actor to the penalties described therein, unless it
appears that he is exempted from liability under one or other of the express provisions of
article 8 of the code, which treats of exemption. But while it is true that contrary to the
general rule of legislative enactment in the United States, the definitions of crimes and
offenses as set out in the Penal Code rarely contain provisions expressly declaring that
malice or criminal intent is an essential ingredient of the crime, nevertheless, the general
provisions of article 1 of the code clearly indicate that malice, or criminal intent in some
form, is an essential requisite of all crimes and offense therein defined, in the absence of
express provisions modifying the general rule, such as are those touching liability resulting
from acts negligently or imprudently committed, and acts done by one voluntarily
committing a crime or misdemeanor, where the act committed is different from that which
he intended to commit. And it is to be observed that even these exceptions are more
apparent than real, for "There is little distinction, except in degree, between a will to do a
wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal,
and within limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal
Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a
great harm and a disposition to do harm that one of them may very well be looked upon
as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition
to do harm, which the criminal shows by committing it, and since this disposition is greater
or less in proportion to the harm which is done by the crime, the consequence is that the
guilt of the crime follows the same proportion; it is greater or less according as the crime in
its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed
the same whether the corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by law.
Acts and omissions punished by law are always presumed to be voluntarily unless
the contrary shall appear.
 An person voluntarily committing a crime or misdemeanor shall incur criminal
liability, even though the wrongful act committed be different from that which he
had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as
used in this article, say that a voluntary act is a free, intelligent, and intentional act, and
roundly asserts that without intention (intention to do wrong or criminal intention) there can
be no crime; and that the word "voluntary" implies and includes the words "con malicia,"
which were expressly set out in the definition of the word "crime" in the code of 1822, but
omitted from the code of 1870, because, as Pacheco insists, their use in the former code
was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo
Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can only be said to
exempt from criminal responsibility when the act which was actually intended to be done
was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless
admits and recognizes in his discussion of the provisions of this article of the code that in
general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have
shown above, the exceptions insisted upon by Viada are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that where there
is no intention there is no crime . . . in order to affirm, without fear of mistake, that
under our code there can be no crime if there is no act, an act which must fall
within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio
169.)
And to the same effect are various decisions of the supreme court of Spain, as, for example
in its sentence of May 31, 1882, in which it made use of the following language:
It is necessary that this act, in order to constitute a crime, involve all the malice
which is supposed from the operation of the will and an intent to cause the injury
which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that "considering that,
whatever may be the civil effects of the inscription of his three sons, made by the appellant
in the civil registry and in the parochial church, there can be no crime because of the lack
of the necessary element or criminal intention, which characterizes every action or
ommission punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of the following
language:
. . . Considering that the moral element of the crime, that is, intent or malice or
their absence in the commission of an act defined and punished by law as
147
criminal, is not a necessary question of fact submitted to the exclusive judgment
and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an essential
element of the various crimes and misdemeanors therein defined becomes clear also from
an examination of the provisions of article 568, which are as follows:
He who shall execute through reckless negligence an act that, if done with
malice, would constitute a grave crime, shall be punished with the penalty
of arresto mayor in its maximum degree, to prision correccional in its minimum
degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime through simple
imprudence or negligence shall incur the penalty of arresto mayor in its medium
and maximum degrees.
In the application of these penalties the courts shall proceed according to their
discretion, without being subject to the rules prescribed in article 81.
The provisions of this article shall not be applicable if the penalty prescribed for
the crime is equal to or less than those contained in the first paragraph thereof, in
which case the courts shall apply the next one thereto in the degree which they
may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the words "criminal
intent," and the direct inference from its provisions is that the commission of the acts
contemplated therein, in the absence of malice (criminal intent), negligence, and
imprudence, does not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in
meaning the word "willful" as used in English and American statute to designate a form of
criminal intent. It has been said that while the word "willful" sometimes means little more
than intentionally or designedly, yet it is more frequently understood to extent a little further
and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent
without justifiable excuse. In one case it was said to mean, as employed in a statute in
contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to
believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not
merely `voluntarily' but with a bad purpose; in other words, corruptly." In English and the
American statutes defining crimes "malice," "malicious," "maliciously," and "malice
aforethought" are words indicating intent, more purely technical than "willful" or willfully,"
but "the difference between them is not great;" the word "malice" not often being
understood to require general malevolence toward a particular individual, and signifying
rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and
429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition in the
definition of a crime that it be committed "voluntarily," willfully," "maliciously" "with malice
aforethought," or in one of the various modes generally construed to imply a criminal intent,
we think that reasoning from general principles it will always be found that with the rare
exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an
act. Mr. Bishop, who supports his position with numerous citations from the decided cases,
thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in the rule as
to the intent. In controversies between private parties the quo animo with which a
thing was done is sometimes important, not always; but crime proceeds only from
a criminal mind. So that —
There can be no crime, large or small, without an evil mind. In other words,
punishment is the sentence of wickedness, without which it can not be. And
neither in philosophical speculation nor in religious or mortal sentiment would any
people in any age allow that a man should be deemed guilty unless his mind was
so. It is therefore a principle of our legal system, as probably it is of every other,
that the essence of an offense is the wrongful intent, without which it can not
exists. We find this doctrine confirmed by —
Legal maxims. — The ancient wisdom of the law, equally with the modern, is
distinct on this subject. It consequently has supplied to us such maxims as Actus
non facit reum nisi mens sit rea, "the act itself does not make man guilty unless his
intention were so;" Actus me incito factus non est meus actus, "an act done by me
against my will is not my act;" and others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also —
Moral science and moral sentiment teach the same thing. "By reference to the
intention, we inculpate or exculpate others or ourselves without any respect to the
happiness or misery actually produced. Let the result of an action be what it may,
we hold a man guilty simply on the ground of intention; or, on the dame ground,
we hold him innocent." The calm judgment of mankind keeps this doctrine among
its jewels. In times of excitement, when vengeance takes the place of justice,
every guard around the innocent is cast down. But with the return of reason
comes the public voice that where the mind is pure, he who differs in act from his
neighbors does not offend. And —
In the spontaneous judgment which springs from the nature given by God to man,
no one deems another to deserve punishment for what he did from an upright
mind, destitute of every form of evil. And whenever a person is made to suffer a
punishment which the community deems not his due, so far from its placing an evil
mark upon him, it elevates him to the seat of the martyr. Even infancy itself
148
spontaneously pleads the want of bad intent in justification of what has the
appearance of wrong, with the utmost confidence that the plea, if its truth is
credited, will be accepted as good. Now these facts are only the voice of nature
uttering one of her immutable truths. It is, then, the doctrine of the law, superior to
all other doctrines, because first in nature from which the law itself proceeds, that
no man is to be punished as a criminal unless his intent is wrong. (Bishop's New
Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent departure from this
doctrine of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris
non excusat ("Ignorance of the law excuses no man"), without which justice could not be
administered in our tribunals; and compelled also by the same doctrine of necessity, the
courts have recognized the power of the legislature to forbid, in a limited class of cases, the
doing of certain acts, and to make their commission criminal without regard to the intent of
the doer. Without discussing these exceptional cases at length, it is sufficient here to say
that the courts have always held that unless the intention of the lawmaker to make the
commission of certain acts criminal without regard to the intent of the doer is clear and
beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158,
notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not
to be a real departure from the law's fundamental principle that crime exists only where the
mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it is
simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300,
and cases cited.)
But, however this may be, there is no technical rule, and no pressing necessity therefore,
requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of
abstract justice. On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or
mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's
Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any such mistake of
fact as shows the act committed to have proceeded from no sort of evil in the mind
necessarily relieves the actor from criminal liability provided always there is no fault or
negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must
depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387;
P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509;
Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209;
Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good
faith, and without fault or negligence fell into the mistake is to be determined by the
circumstances as they appeared to him at the time when the mistake was made, and the
effect which the surrounding circumstances might reasonably be expected to have on his
mind, in forming the intent, criminal or other wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause to
believe the existence of facts which will justify a killing — or, in terms more nicely in
accord with the principles on which the rule is founded, if without fault or
carelessness he does believe them — he is legally guiltless of the homicide; though
he mistook the facts, and so the life of an innocent person is unfortunately
extinguished. In other words, and with reference to the right of self-defense and
the not quite harmonious authorities, it is the doctrine of reason and sufficiently
sustained in adjudication, that notwithstanding some decisions apparently
adverse, whenever a man undertakes self-defense, he is justified in acting on the
facts as they appear to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according to what he thus
supposes the facts to be the law will not punish him though they are in truth
otherwise, and he was really no occassion for the extreme measures. (Bishop's
New Criminal Law, sec. 305, and large array of cases there cited.)
The common illustration in the American and English textbooks of the application of this rule
is the case where a man, masked and disguised as a footpad, at night and on a lonely
road, "holds up" his friends in a spirit of mischief, and with leveled pistol demands his money
or his life, but is killed by his friend under the mistaken belief that the attack is a real one,
that the pistol leveled at his head is loaded, and that his life and property are in imminent
danger at the hands of the aggressor. No one will doubt that if the facts were such as the
slayer believed them to be he would be innocent of the commission of any crime and
wholly exempt from criminal liability, although if he knew the real state of the facts when he
took the life of his friend he would undoubtedly be guilty of the crime of homicide or
assassination. Under such circumstances, proof of his innocent mistake of the facts
overcomes the presumption of malice or criminal intent, and (since malice or criminal intent
is a necessary ingredient of the "act punished by law" in cases of homicide or assassination)
overcomes at the same time the presumption established in article 1 of the code, that the
"act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person slain had a
felonious design against him, and under that supposition killed him, although it
should afterwards appear that there was no such design, it will not be murder, but
it will be either manslaughter or excusable homicide, according to the degree of
caution used and the probable grounds of such belief. (Charge to the grand jury
in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:
149
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an
outstretched arms and a pistol in his hand, and using violent menaces against his
life as he advances. Having approached near enough in the same attitude, A,
who has a club in his hand, strikes B over the head before or at the instant the
pistol is discharged; and of the wound B dies. It turns out the pistol was loaded
with powder only, and that the real design of B was only to terrify A. Will any
reasonable man say that A is more criminal that he would have been if there had
been a bullet in the pistol? Those who hold such doctrine must require that a man
so attacked must, before he strikes the assailant, stop and ascertain how the pistol
is loaded — a doctrine which would entirely take away the essential right of self-
defense. And when it is considered that the jury who try the cause, and not the
party killing, are to judge of the reasonable grounds of his apprehension, no
danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited by Viada, a
few of which are here set out in full because the facts are somewhat analogous to those in
the case at bar.
QUESTION III. When it is shown that the accused was sitting at his hearth, at night,
in company only of his wife, without other light than reflected from the fire, and
that the man with his back to the door was attending to the fire, there suddenly
entered a person whom he did not see or know, who struck him one or two blows,
producing a contusion on the shoulder, because of which he turned, seized the
person and took from his the stick with which he had undoubtedly been struck,
and gave the unknown person a blow, knocking him to the floor, and afterwards
striking him another blow on the head, leaving the unknown lying on the floor, and
left the house. It turned out the unknown person was his father-in-law, to whom he
rendered assistance as soon as he learned his identity, and who died in about six
days in consequence of cerebral congestion resulting from the blow. The
accused, who confessed the facts, had always sustained pleasant relations with
his father-in-law, whom he visited during his sickness, demonstrating great grief
over the occurrence. Shall he be considered free from criminal responsibility, as
having acted in self-defense, with all the circumstances related in paragraph 4,
article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid
found that he was an illegal aggressor, without sufficient provocation, and that
there did not exists rational necessity for the employment of the force used, and in
accordance with articles 419 and 87 of the Penal Code condemned him to
twenty months of imprisonment, with accessory penalty and costs. Upon appeal
by the accused, he was acquitted by the supreme court, under the following
sentence: "Considering, from the facts found by the sentence to have been
proven, that the accused was surprised from behind, at night, in his house beside
his wife who was nursing her child, was attacked, struck, and beaten, without
being able to distinguish with which they might have executed their criminal
intent, because of the there was no other than fire light in the room, and
considering that in such a situation and when the acts executed demonstrated
that they might endanger his existence, and possibly that of his wife and child,
more especially because his assailant was unknown, he should have defended
himself, and in doing so with the same stick with which he was attacked, he did
not exceed the limits of self-defense, nor did he use means which were not
rationally necessary, particularly because the instrument with which he killed was
the one which he took from his assailant, and was capable of producing death,
and in the darkness of the house and the consteration which naturally resulted
from such strong aggression, it was not given him to known or distinguish whether
there was one or more assailants, nor the arms which they might bear, not that
which they might accomplish, and considering that the lower court did not find
from the accepted facts that there existed rational necessity for the means
employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it
erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I,
p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was situated in a
retired part of the city, upon arriving at a point where there was no light, heard
the voice of a man, at a distance of some 8 paces, saying: "Face down, hand
over you money!" because of which, and almost at the same money, he fired two
shots from his pistol, distinguishing immediately the voice of one of his friends (who
had before simulated a different voice) saying, "Oh! they have killed me," and
hastening to his assistance, finding the body lying upon the ground, he cried,
"Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been
the victim of a joke, and not receiving a reply, and observing that his friend was a
corpse, he retired from the place. Shall he be declared exempt in toto from
responsibility as the author of this homicide, as having acted in just self-defense
under the circumstances defined in paragraph 4, article 8, Penal Code? The
criminal branch of the Audiencia of Malaga did not so find, but only found in
favor of the accused two of the requisites of said article, but not that of the
reasonableness of the means employed to repel the attack, and, therefore,
condemned the accused to eight years and one day of prison mayor, etc. The
supreme court acquitted the accused on his appeal from this sentence, holding
that the accused was acting under a justifiable and excusable mistake of fact as
to the identity of the person calling to him, and that under the circumstances, the
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darkness and remoteness, etc., the means employed were rational and the
shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p.
136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night,
by a large stone thrown against his window — at this, he puts his head out of the
window and inquires what is wanted, and is answered "the delivery of all of his
money, otherwise his house would be burned" — because of which, and
observing in an alley adjacent to the mill four individuals, one of whom addressed
him with blasphemy, he fired his pistol at one the men, who, on the next morning
was found dead on the same spot. Shall this man be declared exempt from
criminal responsibility as having acted in just self-defense with all of the requisites
of law? The criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a
majority of the requisites to exempt him from criminal responsibility, but not that of
reasonable necessity for the means, employed, and condemned the accused to
twelve months of prision correctional for the homicide committed. Upon appeal,
the supreme court acquitted the condemned, finding that the accused, in firing
at the malefactors, who attack his mill at night in a remote spot by threatening
robbery and incendiarism, was acting in just self-defense of his person, property,
and family. (Sentence of May 23, 1877). (I Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces us that the
defendant Chinaman struck the fatal blow alleged in the information in the firm belief that
the intruder who forced open the door of his sleeping room was a thief, from whose assault
he was in imminent peril, both of his life and of his property and of the property committed
to his charge; that in view of all the circumstances, as they must have presented
themselves to the defendant at the time, he acted in good faith, without malice, or
criminal intent, in the belief that he was doing no more than exercising his legitimate right of
self-defense; that had the facts been as he believed them to be he would have been
wholly exempt from criminal liability on account of his act; and that he can not be said to
have been guilty of negligence or recklessness or even carelessness in falling into his
mistake as to the facts, or in the means adopted by him to defend himself from the
imminent danger which he believe threatened his person and his property and the
property under his charge.
The judgment of conviction and the sentence imposed by the trial court should be
reversed, and the defendant acquitted of the crime with which he is charged and his bail
bond exonerated, with the costs of both instance de oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.

Separate Opinions
TORRES, J., dissenting:
The writer, with due respect to the opinion of the majority of the court, believes that,
according to the merits of the case, the crime of homicide by reckless negligence, defined
and punishes in article 568 of the Penal Code, was committed, inasmuch as the victim was
wilfully (voluntariomente) killed, and while the act was done without malice or criminal
intent it was, however, executed with real negligence, for the acts committed by the
deceased could not warrant the aggression by the defendant under the erroneous belief
on the part of the accused that the person who assaulted him was a malefactor; the
defendant therefore incurred responsibility in attacking with a knife the person who was
accustomed to enter said room, without any justifiable motive.
By reason of the nature of the crime committed, in the opinion of the undersigned the
accused should be sentenced to the penalty of one year and one month of prision
correctional, to suffer the accessory penalties provided in article 61, and to pay an
indemnify of P1,000 to the heirs of the deceased, with the costs of both instances, thereby
reversing the judgment appealed from.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-47722 July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis
and Alberto Galanta, chief of police of Cabanatuan and corporal of the Philippine
Constabulary, respectively, were, after due trial, found guilty by the lower court of homicide
through reckless imprudence and were sentenced each to an indeterminate penalty of
from one year and six months to two years and two months of prison correccional and to
indemnify jointly and severally the heirs of the deceased in the amount of P1,000.
Defendants appealed separately from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary
Provincial Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of
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the following tenor: "Information received escaped convict Anselmo Balagtas
with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod
accordingly called for his first sergeant and asked that he be given four men. Defendant
corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D.
Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector
where they were shown a copy of the above-quoted telegram and a newspaper clipping
containing a picture of Balagtas. They were instructed to arrest Balagtas and, if
overpowered, to follow the instruction contained in the telegram. The same instruction was
given to the chief of police Oanis who was likewise called by the Provincial Inspector. When
the chief of police was asked whether he knew one Irene, a bailarina, he answered that he
knew one of loose morals of the same name. Upon request of the Provincial Inspector, the
chief of police tried to locate some of his men to guide the constabulary soldiers in
ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered to
go with the party. The Provincial Inspector divided the party into two groups with
defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street
leading to the house where Irene was supposedly living. When this group arrived at Irene's
house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and
asked her where Irene's room was. Brigida indicated the place and upon further inquiry also
said that Irene was sleeping with her paramour. Brigida trembling, immediately returned to
her own room which was very near that occupied by Irene and her paramour. Defendants
Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping with his
back towards the door where they were, simultaneously or successively fired at him with
their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour
already wounded, and looking at the door where the shots came, she saw the defendants
still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the
person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and
innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector,
informed of the killing, repaired to the scene and when he asked as to who killed the
deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse
was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de
Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found
on Tecson's body which caused his death.
These are the facts as found by the trial court and fully supported by the evidence,
particularly by the testimony of Irene Requinea. Appellants gave, however, a different
version of the tragedy. According to Appellant Galanta, when he and chief of police Oanis
arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the
place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that
he too was sleeping in the same room. Oanis went to the room thus indicated and upon
opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the
supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis
fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted:
"That is Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the curtain covering the door
and after having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the
supposed Balagtas, while the latter was still lying on bed, and continued firing until he had
exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon
seeing the supposed Balagtas, who was then apparently watching and picking up
something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are certainly incredible
not only because they are vitiated by a natural urge to exculpate themselves of the crime,
but also because they are materially contradictory. Oasis averred that be fired at Tecson
when the latter was apparently watching somebody in an attitudes of picking up
something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while
the latter was about to sit up in bed immediately after he was awakened by a noise.
Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was
rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on
bed. It is apparent from these contradictions that when each of the appellants tries to
exculpate himself of the crime charged, he is at once belied by the other; but their mutual
incriminating averments dovetail with and corroborate substantially, the testimony of Irene
Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in
bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by
both appellants themselves in their mutual recriminations. According, to Galanta, Oanis
shot Tecson when the latter was still in bed about to sit up just after he was awakened by a
noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed.
Thus corroborated, and considering that the trial court had the opportunity to observe her
demeanor on the stand, we believe and so hold that no error was committed in accepting
her testimony and in rejecting the exculpatory pretensions of the two appellants.
Furthermore, a careful examination of Irene's testimony will show not only that her version of
the tragedy is not concocted but that it contains all indicia of veracity. In her cross-
examination, even misleading questions had been put which were unsuccessful, the
witness having stuck to the truth in every detail of the occurrence. Under these
circumstances, we do not feel ourselves justified in disturbing the findings of fact made by
the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his
back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or
successively, believing him to be Anselmo Balagtas but without having made previously
152
any reasonable inquiry as to his identity. And the question is whether or not they may, upon
such fact, be held responsible for the death thus caused to Tecson. It is contended that, as
appellants acted in innocent mistake of fact in the honest performance of their official
duties, both of them believing that Tecson was Balagtas, they incur no criminal liability.
Sustaining this theory in part, the lower court held and so declared them guilty of the crime
of homicide through reckless imprudence. We are of the opinion, however, that, under the
circumstances of the case, the crime committed by appellants is murder through specially
mitigated by circumstances to be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely
on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this
applies only when the mistake is committed without fault or carelessness. In the Ah Chong
case, defendant therein after having gone to bed was awakened by someone trying to
open the door. He called out twice, "who is there," but received no answer. Fearing that the
intruder was a robber, he leaped from his bed and called out again., "If you enter the room
I will kill you." But at that precise moment, he was struck by a chair which had been placed
against the door and believing that he was then being attacked, he seized a kitchen knife
and struck and fatally wounded the intruder who turned out to be his room-mate. A
common illustration of innocent mistake of fact is the case of a man who was marked as a
footpad at night and in a lonely road held up a friend in a spirit of mischief, and with
leveled, pistol demanded his money or life. He was killed by his friend under the mistaken
belief that the attack was real, that the pistol leveled at his head was loaded and that his
life and property were in imminent danger at the hands of the aggressor. In these instances,
there is an innocent mistake of fact committed without any fault or carelessness because
the accused, having no time or opportunity to make a further inquiry, and being pressed by
circumstances to act immediately, had no alternative but to take the facts as they then
appeared to him, and such facts justified his act of killing. In the instant case, appellants,
unlike the accused in the instances cited, found no circumstances whatsoever which
would press them to immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his identity without hazard to
themselves, and could even effect a bloodless arrest if any reasonable effort to that end
had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is
the only legitimate course of action for appellants to follow even if the victim was really
Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get
him dead or alive only if resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such force as is reasonably
necessary to secure and detain the offender, overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46
Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton
violence, or in resorting to dangerous means when the arrest could be effected otherwise
(6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No
unnecessary or unreasonable force shall be used in making an arrest, and the person
arrested shall not be subject to any greater restraint than is necessary for his detention."
(Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability
if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753;
U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious
criminal, a life-termer, a fugitive from justice and a menace to the peace of the
community, but these facts alone constitute no justification for killing him when in effecting
his arrest, he offers no resistance or in fact no resistance can be offered, as when he is
asleep. This, in effect, is the principle laid down, although upon different facts, in
U.S. vs. Donoso (3 Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken by storm" without regard
to his right to life which he has by such notoriety already forfeited. We may approve of this
standard of official conduct where the criminal offers resistance or does something which
places his captors in danger of imminent attack. Otherwise we cannot see how, as in the
present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the
hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official
alertness and vigilance; it never can justify precipitate action at the cost of human life.
Where, as here, the precipitate action of the appellants has cost an innocent life and there
exist no circumstances whatsoever to warrant action of such character in the mind of a
reasonably prudent man, condemnation — not condonation — should be the rule;
otherwise we should offer a premium to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence, the killing being
intentional and not accidental. In criminal negligence, the injury caused to another should
be unintentional, it being simply the incident of another act performed without malice.
(People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de
imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de dañar;
existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas
que no haya sido la intencion del agente el causar un mal de tanta gravedad como el
que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once
held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with
the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil.,
16), and where such unlawful act is wilfully done, a mistake in the identity of the intended
victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to
support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is murder with the qualifying
circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting
153
in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal
Code. According to such legal provision, a person incurs no criminal liability when he acts in
the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites
in order that the circumstance may be taken as a justifying one: (a) that the offender
acted in the performance of a duty or in the lawful exercise of a right; and (b) that the
injury or offense committed be the necessary consequence of the due performance of
such duty or the lawful exercise of such right or office. In the instance case, only the first
requisite is present — appellants have acted in the performance of a duty. The second
requisite is wanting for the crime by them committed is not the necessary consequence of
a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or
alive if resistance is offered by him and they are overpowered. But through impatience or
over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of
such duty by killing the person whom they believed to be Balagtas without any resistance
from him and without making any previous inquiry as to his identity. According to article 69
of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed
by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are hereby declared guilty of
murder with the mitigating circumstance above mentioned, and accordingly sentenced to
an indeterminate penalty of from five (5) years of prision correctional to fifteen (15) years
of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased
Serapio Tecson jointly and severally an indemnity of P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.
Separate Opinions
PARAS, J., dissenting:
Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form
Manila to the provinces. Receiving information to the effect that he was staying with one
Irene in Cabanatuan, Nueva Ecija, the office of the Constabulary in Manila ordered the
Provincial Inspector in Cabanatuan by telegram dispatched on December 25, 1938, to get
Balagtas "dead or alive". Among those assigned to the task of carrying out the said order,
were Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a
Constabulary corporal, to whom the telegram received by the Provincial Inspector and a
newspaper picture of Balagtas were shown. Oanis, Galanta and a Constabulary private,
after being told by the Provincial Inspector to gather information about Balagtas, "to arrest
him and, if overpowered, to follow the instructions contained in the telegram," proceeded
to the place where the house of Irene was located. Upon arriving thereat, Oanis
approached Brigida Mallari, who was then gathering banana stalks in the yard, and
inquired for the room of Irene. After Mallari had pointed out the room, she was asked by
Oanis to tell where Irene's paramour, Balagtas, was, whereupon Mallari answered that he
was sleeping with Irene. Upon reaching the room indicated, Oanis and Galanta, after the
former had shouted "Stand up, if you are Balagtas," started shooting the man who was
found by them lying down beside a woman. The man was thereby killed, but Balagtas was
still alive, for it turned out that the person shot by Oanis and Galanta was one Serapio
Tecson.
Consequently, Oanis and Galanta were charged with having committed murder. The Court
of First Instance of Nueva Ecija, however, convicted them only of homicide through reckless
imprudence and sentenced them each to suffer the indeterminate penalty of from 1 year
and 6 months to 2 years and 2 months of prision correctional, to jointly and severally
indemnify the heirs of Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis
and Galanta have appealed.
In accomplishing the acts with which the appellants were charged, they undoubtedly
followed the order issued by the Constabulary authorities in Manila requiring the Provincial
Inspector in Cabanatuan to get Balagtas dead or alive, in the honest belief that Serapio
Tecson was Anselmo Balagtas. As the latter became a fugitive criminal, with revolvers in his
possession and a record that made him extremely dangerous and a public terror, the
Constabulary authorities were justified in ordering his arrest, whether dead or alive. In view
of said order and the danger faced by the appellants in carrying it out, they cannot be
said to have acted feloniously in shooting the person honestly believed by them to be the
wanted man. Conscious of the fact that Balagtas would rather kill than be captured, the
appellants did not want to take chances and should not be penalized for such prudence.
On the contrary, they should be commended for their bravery and courage bordering on
recklessness because, without knowing or ascertaining whether the wanted man was in
fact asleep in his room, they proceeded thereto without hesitation and thereby exposed
their lives to danger.
The Solicitor-General, however, contends that the appellants were authorized to use their
revolvers only after being overpowered by Balagtas. In the first place, the alleged
instruction by the Provincial Inspector to that effect, was in violation of the express order
given by the Constabulary authorities in Manila and which was shown to the appellants. In
the second place, it would indeed be suicidal for the appellants or, for that matter, any
agent of the authority to have waited until they have been overpowered before trying to
put our such a character as Balagtas. In the third place, it is immaterial whether or not the
instruction given by the Provincial Inspector was legitimate and proper, because the facts
exist that the appellants acted in conformity with the express order of superior Constabulary
authorities, the legality or propriety of which is not herein questioned.
The theory of the prosecution has acquired some plausibility, though quite psychological or
sentimental, in view only of the fact that it was not Balagtas who was actually killed, but an
"innocent man . . . while he was deeply asleep." Anybody's heart will be profoundly grieved
154
by the trade, but in time will be consoled by the realization that the life of Serapio Tecson
was not vainly sacrificed, for the incident will always serve as a loud warning to any one
desiring to follow in the footsteps of Anselmo Balagtas that in due time the duly constituted
authorities will, upon proper order, enforce the summary forfeiture of his life.
In my opinion, therefore, the appellants are not criminally liable if the person killed by them
was in fact Anselmo Balagtas for the reason that they did so in the fulfillment of their duty
and in obedience to an order issued by a superior for some lawful purpose (Revised Penal
Code, art. 11, pars. 5 and 6). They also cannot be held criminally liable even if the person
killed by them was not Anselmo Balagtas, but Serapio Tecson, because they did so under
an honest mistake of fact not due to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil.,
488).
It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any
person committing a felony although the wrongful act done be different from that which
he intended; but said article is clearly inapplicable since the killing of the person who was
believed to be Balagtas was, as already stated, not wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point,
inasmuch as the defendant therein, who intended to injure Hilario Lauigan with whom he
had a quarrel, but killed another by mistake, would not be exempted from criminal liability if
he actually injured or killed Hilario Lauigan, there being a malicious design on his part. The
other case involved by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in
point, as it appears that the defendants therein killed one Pedro Almasan after he had
already surrendered and allowed himself to be bound and that the said defendants did
not have lawful instructions from superior authorities to capture Almasan dead or alive.
The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis
and Alberto Galanta, acquitted, with costs de oficio.
HONTIVEROS, J., dissenting:
According to the opinion of the majority, it is proper to follow the rule that a notorious
criminal "must be taken by storm without regard to his life which he has, by his conduct,
already forfeited," whenever said criminal offers resistance or does something which places
his captors in danger of imminent attack. Precisely, the situation which confronted the
accused-appellants Antonio Z. Oanis and Alberto Galanta in the afternoon of December
24, 1938, was very similar to this. It must be remembered that both officers received
instructions to get Balagtas "dead or alive" and according to the attitude of not only the
said appellants but also of Capt. Monsod, constabulary provincial inspector of Nueva Ecija,
it may be assumed that said instructions gave more emphasis to the first part; namely, to
take him dead. It appears in the record that after the shooting, and having been informed
of the case, Capt. Monsod stated that Oanis and Galanta might be decorated for what
they had done. That was when all parties concerned honestly believed that the dead
person was Balagtas himself, a dangerous criminal who had escaped from his guards and
was supposedly armed with a .45 caliber pistol Brigida Mallari, the person whom the
appellants met upon arriving at the house of Irene Requinea, supposed mistress of
Balagtas, informed them that said Balagtas was upstairs. Appellants found there asleep a
man closely resembling the wanted criminal. Oanis said: If you are Balagtas stand up," But
the supposed criminal showed his intention to attack the appellants, a conduct easily
explained by the fact that he should have felt offended by the intrusion of persons in the
room where he was peacefully lying down with his mistress. In such predicament, it was
nothing but human on the part of the appellants to employ force and to make use of their
weapons in order to repel the imminent attack by a person who, according to their belief,
was Balagtas It was unfortunate, however that an innocent man was actually killed. But
taking into consideration the facts of the case, it is, according to my humble opinion,
proper to apply herein the doctrine laid down in the case of U.S. vs. Ah Chong (15 Phil.,
488). In the instant case we have, as in the case supra, an innocent mistake of fact
committed without any fault or carelessness on the part of the accused, who having no
time to make a further inquiry, had no alternative but to take the facts as they appeared to
them and act immediately.
The decision of the majority, in recognition of the special circumstances of this case which
favored the accused-appellants, arrives at the conclusion that an incomplete justifying
circumstance may be invoked, and therefore, according to Article 69 of the Revised Penal
Code, the imposable penalty should be one which is lower by one or two degrees than
that prescribed by law. This incomplete justifying circumstance is that defined in Article 11,
No. 5 of the Revised Penal Code, in favor of "a person who acts in the fulfillment of a duty or
in the lawful exercise of a right or office." I believe that the application of this circumstance
is not proper. Article 69 of the Revised Penal Code provides as follows:
Art. 69. Penalty to be imposed when the crime committed is not wholly excusable.
— A penalty lower by one or two degrees than that prescribed by law shall be
imposed if the deed is not wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt from criminal liability in the
several cases mentioned in articles 11 and 12, provided that the majority of such
conditions be present. The courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the conditions of
exemption present or lacking.
This provision has been copied almost verbatim from Article 84 of the old Penal Code of the
Philippines, and which was also taken from Article 87 of the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee created by
Administrative Order No. 94 of the Department of Justice for the drafting of the Revised
Penal Code, in commenting on Article 69, said that the justifying circumstances and
155
circumstances exempting from liability which are the subject matter of this article are the
following: self-defense, defense of relatives, defense of strangers, state of necessity and
injury caused by mere accident. Accordingly, justifying circumstance No. 5 of Article 11
dealing with the fulfillment of a duty or the lawful exercise of a right, calling or office,
cannot be placed within its scope.
The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the
Spanish Penal Code of 1870 which is the source of Article 69 of our Code says:
Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que
obra violentado por una fuerza inrresistible o impulsado por miedo insuperable de
un mal igual o mayor, o en cumplimiento de un deber, o en el ejercito legitimo de
un derecho, oficio o cargo, o en virtud de obediencia debida, ni del que incurre
en alguna omision hallandose impedido por causa legitima o insuperable, puede
tener aplicacion al articulo que comentamos. Y la razon es obvia. En ninguna de
estas execiones hay pluralidad de requisitos. La irrespondabilidad depende de
una sola condicion. Hay o no perturbacion de la razon; el autor del hecho es o no
menor de nueve años; existe o no violencia material o moral irresistible, etc., etc.;
tal es lo que respectivamente hay que examinar y resolver para declarar la
culpabilidad o inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el
texto que va al frente de estas lineas rquiere, para que se imponga al autor del
hecho la penalidad excepcional que establece; esto es, que
falten algunos requisitos de los que la ley exige para eximir de responsabilidad, y
que concurran el mayor numero de ellos, toda vez que, en los casos referidos, la
ley no exige multiples condiciones.
It must be taken into account the fact according to Article 69 a penalty lower by one or
two degrees than that prescribed by law shall be imposed if the deed is not wholly
excusable by reason of the lack of some of the conditions required by the law to justify the
same or exempt from criminal liability. The word "conditions" should not be confused with
the word "requisites". In dealing with justifying circumstance No. 5 Judge Guevara states:
"There are two requisites in order that this circumstance may be taken into account: (a)
That the offender acted in the performance of his duty or in the lawful exercise of a right;
and (b) That the injury or offense committed be the necessary consequence of the
performance of a duty or the lawful exercise of a right or office." It is evident that these two
requisites concur in the present case if we consider the intimate connection between the
order given to the appellant by Capt. Monsod, the showing to them of the telegram from
Manila to get Balagtas who was with a bailarina named Irene, the conduct of said
appellants in questioning Brigida Mallari and giving a warning to the supposed criminal
when both found him with Irene, and the statement made by Capt. Monsod after the
shooting.
If appellant Oanis is entitled to a reversal of the decision of the court below, there are more
reasons in favor of the acquittal of appellant Galanta. According to the evidence no bullet
from the gun fired by this accused ever hit Serapio Tecson. Galanta was armed in the
afternoon of December 24, 1938, with a .45 caliber revolver (Exhibit L). He so testified and
was corroborated by the unchallenged testimony of his superior officer Sgt. Valeriano
Serafica. According to this witness, since Galanta was made a corporal of the
Constabulary he was given, as part of his equipment, revolver Exhibit L with a serial No.
37121. This gun had been constantly used by Galanta, and, according to Sgt. Pedro
Marasigan, who accompanied said accused when he took it from his trunk in the barracks
on the night of December 24, 1938, upon order of Captain Monsod, it was the same
revolver which was given to the witness with five .45 caliber bullets and one empty shell.
Fourteen unused bullets were also taken from Galanta by Sergeant Serafica, thus
completing his regular equipment of twenty bullets which he had on the morning of
December 24, 1938, when Sergeant Serafica made the usual inspection of the firearms in
the possession of the non-commissioned officers and privates of the constabulary post at
Cabanatuan. Galanta stated that he had fired only one shot and missed. This testimony is
corroborated by that of a ballistic expert who testified that bullets exhibits F and O, — the
first being extracted from the head of the deceased, causing wound No. 3 of autopsy
report Exhibit C and the second found at the place of the shooting, — had not been fired
from revolver Exhibit L nor from any other revolver of the constabulary station in
Cabanatuan. It was impossible for the accused Galanta to have substituted his revolver
because when Exhibit L was taken from him nobody in the barracks doubted that the
deceased was none other than Balagtas. Moreover, Exhibit L was not out of order and
therefore there was no reason why Galanta should carry along another gun, according to
the natural course of things. On the other hand, aside from wound No. 3 as above stated,
no other wound may be said to have been caused by a .45 caliber revolver bullet. Doctor
Castro's record gives the conclusion that wound No. 2 must have been caused by a .45
caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must
have been caused by a .45 caliber bullet, but inasmuch as the diameter of the wound's
entrance was only 8 mm., the caliber should be .32 and not .45, because according to the
medico-legal expert who testified in this case, a bullet of a .45 caliber will produce a wound
entrance with either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon
who performed the autopsy appeared to have been caused by bullets of a lesser caliber.
In consequence, it can be stated that no bullet fired by Galanta did ever hit or kill Serapio
Tecson and therefore there is no reason why he should be declared criminally responsible
for said death.
156
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-74324 November 17, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellants.
MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN
SAMSON y MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-
175-82 of the Court of First Instance (now Regional Trial Court) of Cavite, under an
information which reads as follows:
That on or about May 19, 1982 at the town plaza of the Municipality of
Rosario, Province of Cavite, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating
and mutually helping and assisting one another, with treachery and
evident premeditation, taking advantage of their superior strength, and
with the decided purpose to kill, poured gasoline, a combustible liquid to
the body of Bayani Miranda and with the use of fire did then and there,
wilfully, unlawfully and feloniously, burn the whole body of said Bayani
Miranda which caused his subsequent death, to the damage and
prejudice of the heirs of the aforenamed Bayani Miranda.
That the crime was committed with the qualifying circumstance of
treachery and the aggravating circumstances of evident premeditation
and superior strength, and the means employed was to weaken the
defense; that the wrong done in the commission of the crime was
deliberately augmented by causing another wrong, that is the burning of
the body of Bayani Miranda.
CONTRARY TO LAW (p. 1, Records).
Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial,
the trial court rendered a decision finding both accused guilty on the crime of murder but
crediting in favor of the accused Pugay the mitigating circumstance of lack of intention to
commit so grave a wrong, the dispositive portion of which reads as follows:
 WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin
Samson y Magdalena are pronounced guilty beyond reasonable doubt
as principals by direct participation of the crime of murder for the death
of Bayani Miranda, and appreciating the aforestated mitigating
circumstance in favor of Pugay, he is sentenced to a prison term ranging
from twelve (12) years of prision mayor, as minimum, to twenty (20) years
of reclusion temporal, as maximum, and Samson to suffer the penalty
of reclusion perpetua together with the accessories of the law for both of
them. The accused are solidarily held liable to indemnify the heirs of the
victim in the amount of P13,940.00 plus moral damages of P10,000.00
and exemplary damages of P5,000.00.
Let the preventive imprisonment of Pugay be deducted from the
principal penalty.
Cost against both accused.
SO ORDERED (p. 248, Records).
Not satisfied with the decision, both accused interposed the present appeal and assigned
the following errors committed by the court a quo:
1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-
APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT
THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING
THE CUSTODIAL INVESTIGATION.
2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY
THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE.
3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE
TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY
SUSPECTS ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48,
Rollo).
The antecedent facts are as follows:
The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends.
Miranda used to run errands for Pugay and at times they slept together. On the evening of
May 19, 1982, a town fiesta fair was held in the public plaza of Rosario, Cavite. There were
different kinds of ride and one was a ferris wheel.
Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel
and reading a comic book with his friend Henry. Later, the accused Pugay and Samson
with several companions arrived. These persons appeared to be drunk as they were all
happy and noisy. As the group saw the deceased walking nearby, they started making fun
of him. They made the deceased dance by tickling him with a piece of wood.
157
Not content with what they were doing with the deceased, the accused Pugay suddenly
took a can of gasoline from under the engine of the ferns wheel and poured its contents on
the body of the former. Gabion told Pugay not to do so while the latter was already in the
process of pouring the gasoline. Then, the accused Samson set Miranda on fire making a
human torch out of him.
The ferris wheel operator later arrived and doused with water the burning body of the
deceased. Some people around also poured sand on the burning body and others
wrapped the same with rags to extinguish the flame.
The body of the deceased was still aflame when police officer Rolando Silangcruz and
other police officers of the Rosario Police Force arrived at the scene of the incident. Upon
inquiring as to who were responsible for the dastardly act, the persons around
spontaneously pointed to Pugay and Samson as the authors thereof.
The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the
police officers brought Gabion, the two accused and five other persons to the Rosario
municipal building for interrogation. Police officer Reynaldo Canlas took the written
statements of Gabion and the two accused, after which Gabion was released. The two
accused remained in custody.
After a careful review of the records, We find the grounds relied upon by the accused-
appellants for the reversal of the decision of the court a quo to be without merit.
It bears emphasis that barely a few hours after the incident, accused-appellants gave their
written statements to the police. The accused Pugay admitted in his statement, Exhibit F,
that he poured a can of gasoline on the deceased believing that the contents thereof was
water and then the accused Samson set the deceased on fire. The accused Samson, on
the other hand, alleged in his statement that he saw Pugay pour gasoline on Miranda but
did not see the person who set him on fire. Worthy of note is the fact that both statements
did not impute any participation of eyewitness Gabion in the commission of the offense.
While testifying on their defense, the accused-appellants repudiated their written
statements alleging that they were extracted by force. They claimed that the police
maltreated them into admitting authorship of the crime. They also engaged in a concerted
effort to lay the blame on Gabion for the commission of the offense.
Thus, while it is true that the written statements of the accused-appellants were mentioned
and discussed in the decision of the court a quo, the contents thereof were not utilized as
the sole basis for the findings of facts in the decision rendered. The said court categorically
stated that "even without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive
and convincing testimony which remains unaffected by the uncorroborated, self-serving
and unrealiable testimonies of Pugay and Samson" (p. 247, Records).
Accused-appellants next assert that the prosecution suppressed the testimonies of other
eyewitnesses to the incident. They claim that despite the fact that there were other persons
investigated by the police, only Gabion was presented as an eyewitness during the trial of A. I put down the comics which I am reading and I
the case. They argue that the deliberate non- presentation of these persons raises the saw what they were doing.
presumption that their testimonies would be adverse to the prosecution. Q. According to you also before Bayani was poured
There is no dispute that there were other persons who witnessed the commission of the with gasoline and lighted and burned later you had a
crime. In fact there appears on record (pp. 16-17, Records) the written statements of one talk with Pugay, is that correct?
Abelardo Reyes and one Monico Alimorong alleging the same facts and imputing the A. When he was pouring gasoline on Bayani Miranda I
respective acts of pouring of gasoline and setting the deceased on fire to the accused- was trying to prevent him from doing so.
appellants as testified to by Gabion in open court. They were listed as prosecution witnesses Q. We want to clarify. According to you a while ago
in the information filed. Considering that their testimonies would be merely corroborative, you had a talk with Pugay and as a matter of fact,
their non-presentation does not give rise to the presumption that evidence wilfully you told him not to pour gasoline. That is what I want
suppressed would be adverse if produced. This presumption does not apply to the to know from you, if that is true?
suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil. A. Yes, sir.
797).<äre||anº•1àw> Besides, the matter as to whom to utilize as witness is for the Q. Aside from Bayani being tickled with a stick on his
prosecution to decide. ass, do you mean to say you come to know that
Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not Pugay will pour gasoline unto him?
only was the latter requested by the mother of the deceased to testify for the prosecution A. I do not know that would be that incident.
in exchange for his absolution from liability but also because his testimony that he was Q. Why did you as(k) Pugay in the first place not to
reading a comic book during an unusual event is contrary to human behavior and pour gasoline before he did that actually?
experience. A. Because I pity Bayani, sir.
Gabion testified that it was his uncle and not the mother of the deceased who asked him Q. When you saw Pugay tickling Bayani with a stick on
to testify and state the truth about the incident. The mother of the deceased likewise his ass you tried according to you to ask him not to
testified that she never talked to Gabion and that she saw the latter for the first time when and then later you said you asked not to pour
the instant case was tried. Besides, the accused Pugay admitted that Gabion was his friend gasoline. Did Pugay tell you he was going to pour
and both Pugay and the other accused Samson testified that they had no previous gasoline on Bayani?
misunderstanding with Gabion. Clearly, Gabion had no reason to testify falsely against A. I was not told, sir.
them. Q. Did you come to know..... how did you come to
In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour know he was going to pour gasoline that is why you
gasoline on the deceased and then Samson set him on fire is incredible, the accused- prevent him?
appellants quote Gabion's testimony on cross-examination that, after telling Pugay not to A. Because he was holding on a container of
pour gasoline on the deceased, he (Gabion) resumed reading comics; and that it was only gasoline. I thought it was water but it was gasoline.
when the victim's body was on fire that he noticed a commotion. Q. It is clear that while Pugay was tickling Bayani with
However, explaining this testimony on re-direct examination, Gabion stated: a stick on his ass, he later got hold of a can of
Q. Mr. Gabion, you told the Court on cross- gasoline, is that correct?
examination that you were reading comics when you A. Yes, sir.
saw Pugay poured gasoline unto Bayani Miranda and Q. And when he pick up the can of gasoline, was that
lighted by Samson. How could you possibly see that the time you told him not to pour gasoline when he
incident while you were reading comics? merely pick up the can of gasoline.
A. I saw him pouring the gasoline on the body of Joe.

158
 Q. So, it is clear when you told Pugay not to pour
gasoline he was already in the process of pouring
gasoline on the body of Bayani?
A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).
It is thus clear that prior to the incident in question, Gabion was reading a comic book; that
Gabion stopped reading when the group of Pugay started to make fun of the deceased;
that Gabion saw Pugay get the can of gasoline from under the engine of the ferris wheel;
that it was while Pugay was in the process of pouring the gasoline on the body of the
deceased when Gabion warned him not to do so; and that Gabion later saw Samson set
the deceased on fire.
However, there is nothing in the records showing that there was previous conspiracy or unity
of criminal purpose and intention between the two accused-appellants immediately
before the commission of the crime. There was no animosity between the deceased and
the accused Pugay or Samson. Their meeting at the scene of the incident was accidental.
It is also clear that the accused Pugay and his group merely wanted to make fun of the
deceased. Hence, the respective criminal responsibility of Pugay and Samson arising from
different acts directed against the deceased is individual and not collective, and each of
them is liable only for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S.
vs. Abiog, et. al. 37 Phil. 1371).
The next question to be determined is the criminal responsibility of the accused Pugay.
Having taken the can from under the engine of the ferris wheel and holding it before
pouring its contents on the body of the deceased, this accused knew that the can
contained gasoline. The stinging smell of this flammable liquid could not have escaped his
notice even before pouring the same. Clearly, he failed to exercise all the diligence
necessary to avoid every undesirable consequence arising from any act that may be
committed by his companions who at the time were making fun of the deceased. We
agree with the Solicitor General that the accused is only guilty of homicide through reckless
imprudence defined in Article 365 of the Revised Penal Code, as amended. In U.S. vs.
Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows:
A man must use common sense and exercise due reflection in all his
acts; it is his duty to be cautious, careful, and prudent, if not from instinct,
then through fear of incurring punishment. He is responsible for such
results as anyone might foresee and for acts which no one would have
performed except through culpable abandon. Otherwise his own
person, rights and property, all those of his fellow-beings, would ever be
exposed to all manner of danger and injury.
The proper penalty that the accused Pugay must suffer is an indeterminate one ranging
from four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months
159
of prision correccional, as maximum. With respect to the accused Samson, the Solicitor
General in his brief contends that "his conviction of murder, is proper considering that his
act in setting the deceased on fire knowing that gasoline had just been poured on him is
characterized by treachery as the victim was left completely helpless to defend and
protect himself against such an outrage" (p. 57, Rollo). We do not agree.
There is entire absence of proof in the record that the accused Samson had some reason
to kill the deceased before the incident. On the contrary, there is adequate evidence
showing that his act was merely a part of their fun-making that evening. For the
circumstance of treachery to exist, the attack must be deliberate and the culprit employed
means, methods, or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from any defense which the offended
party might make.
There can be no doubt that the accused Samson knew very well that the liquid poured on
the body of the deceased was gasoline and a flammable substance for he would not
have committed the act of setting the latter on fire if it were otherwise. Giving him the
benefit of doubt, it call be conceded that as part of their fun-making he merely intended
to set the deceased's clothes on fire. His act, however, does not relieve him of criminal
responsibility. Burning the clothes of the victim would cause at the very least some kind of
physical injuries on his person, a felony defined in the Revised Penal Code. If his act resulted
into a graver offense, as what took place in the instant case, he must be held responsible
therefor. Article 4 of the aforesaid code provides, inter alia, 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.
As no sufficient evidence appears in the record establishing any qualifying circumstances,
the accused Samson is only guilty of the crime of homicide defined and penalized in Article
249 of the Revised Penal Code, as amended. We are disposed to credit in his favor the
ordinary mitigating circumstance of no intention to commit so grave a wrong as that
committed as there is evidence of a fact from which such conclusion can be drawn. The
eyewitness Gabion testified that the accused Pugay and Samson were stunned when they
noticed the deceased burning (Tsn, June 1, 1983, pp. 16-17).<äre||anº•1àw>
The proper penalty that the accused Samson must suffer is an indeterminate one ranging
from eight (8) years of prision mayor, as minimum, to fourteen (14) years of reclusion
temporal, as maximum.
The lower court held the accused solidarily liable for P13,940.00, the amount spent by
Miranda's parents for his hospitalization, wake and interment. The indemnity for death is
P30,000.00. Hence, the indemnity to the heirs of the deceased Miranda is increased to
P43,940.00.
Both accused shall be jointly and severally liable for the aforesaid amount plus the
P10,000.00 as moral damages and P5,000.00 as exemplary damages as found by the
court a quo.
Accordingly, the judgment is affirmed with the modifications above-indicated. Costs
against the accused-appellants.
SO ORDERED.
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-47722 July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis
and Alberto Galanta, chief of police of Cabanatuan and corporal of the Philippine
Constabulary, respectively, were, after due trial, found guilty by the lower court of homicide
through reckless imprudence and were sentenced each to an indeterminate penalty of
from one year and six months to two years and two months of prison correccional and to
indemnify jointly and severally the heirs of the deceased in the amount of P1,000.
Defendants appealed separately from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary
Provincial Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of
the following tenor: "Information received escaped convict Anselmo Balagtas
with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod
accordingly called for his first sergeant and asked that he be given four men. Defendant
corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D.
Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector
where they were shown a copy of the above-quoted telegram and a newspaper clipping
containing a picture of Balagtas. They were instructed to arrest Balagtas and, if
overpowered, to follow the instruction contained in the telegram. The same instruction was
given to the chief of police Oanis who was likewise called by the Provincial Inspector. When
the chief of police was asked whether he knew one Irene, a bailarina, he answered that he
160
knew one of loose morals of the same name. Upon request of the Provincial Inspector, the
chief of police tried to locate some of his men to guide the constabulary soldiers in
ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered to
go with the party. The Provincial Inspector divided the party into two groups with
defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street
leading to the house where Irene was supposedly living. When this group arrived at Irene's
house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and
asked her where Irene's room was. Brigida indicated the place and upon further inquiry also
said that Irene was sleeping with her paramour. Brigida trembling, immediately returned to
her own room which was very near that occupied by Irene and her paramour. Defendants
Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping with his
back towards the door where they were, simultaneously or successively fired at him with
their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour
already wounded, and looking at the door where the shots came, she saw the defendants
still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the
person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and
innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector,
informed of the killing, repaired to the scene and when he asked as to who killed the
deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse
was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de
Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found
on Tecson's body which caused his death.
These are the facts as found by the trial court and fully supported by the evidence,
particularly by the testimony of Irene Requinea. Appellants gave, however, a different
version of the tragedy. According to Appellant Galanta, when he and chief of police Oanis
arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the
place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that
he too was sleeping in the same room. Oanis went to the room thus indicated and upon
opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the
supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis
fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted:
"That is Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the curtain covering the door
and after having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the
supposed Balagtas, while the latter was still lying on bed, and continued firing until he had
exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon
seeing the supposed Balagtas, who was then apparently watching and picking up
something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are certainly incredible
not only because they are vitiated by a natural urge to exculpate themselves of the crime,
but also because they are materially contradictory. Oasis averred that be fired at Tecson
when the latter was apparently watching somebody in an attitudes of picking up
something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while
the latter was about to sit up in bed immediately after he was awakened by a noise.
Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was
rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on
bed. It is apparent from these contradictions that when each of the appellants tries to
exculpate himself of the crime charged, he is at once belied by the other; but their mutual
incriminating averments dovetail with and corroborate substantially, the testimony of Irene
Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in
bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by
both appellants themselves in their mutual recriminations. According, to Galanta, Oanis
shot Tecson when the latter was still in bed about to sit up just after he was awakened by a
noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed.
Thus corroborated, and considering that the trial court had the opportunity to observe her
demeanor on the stand, we believe and so hold that no error was committed in accepting
her testimony and in rejecting the exculpatory pretensions of the two appellants.
Furthermore, a careful examination of Irene's testimony will show not only that her version of
the tragedy is not concocted but that it contains all indicia of veracity. In her cross-
examination, even misleading questions had been put which were unsuccessful, the
witness having stuck to the truth in every detail of the occurrence. Under these
circumstances, we do not feel ourselves justified in disturbing the findings of fact made by
the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his
back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or
successively, believing him to be Anselmo Balagtas but without having made previously
any reasonable inquiry as to his identity. And the question is whether or not they may, upon
such fact, be held responsible for the death thus caused to Tecson. It is contended that, as
appellants acted in innocent mistake of fact in the honest performance of their official
duties, both of them believing that Tecson was Balagtas, they incur no criminal liability.
Sustaining this theory in part, the lower court held and so declared them guilty of the crime
of homicide through reckless imprudence. We are of the opinion, however, that, under the
circumstances of the case, the crime committed by appellants is murder through specially
mitigated by circumstances to be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely
on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this
161
applies only when the mistake is committed without fault or carelessness. In the Ah Chong
case, defendant therein after having gone to bed was awakened by someone trying to
open the door. He called out twice, "who is there," but received no answer. Fearing that the
intruder was a robber, he leaped from his bed and called out again., "If you enter the room
I will kill you." But at that precise moment, he was struck by a chair which had been placed
against the door and believing that he was then being attacked, he seized a kitchen knife
and struck and fatally wounded the intruder who turned out to be his room-mate. A
common illustration of innocent mistake of fact is the case of a man who was marked as a
footpad at night and in a lonely road held up a friend in a spirit of mischief, and with
leveled, pistol demanded his money or life. He was killed by his friend under the mistaken
belief that the attack was real, that the pistol leveled at his head was loaded and that his
life and property were in imminent danger at the hands of the aggressor. In these instances,
there is an innocent mistake of fact committed without any fault or carelessness because
the accused, having no time or opportunity to make a further inquiry, and being pressed by
circumstances to act immediately, had no alternative but to take the facts as they then
appeared to him, and such facts justified his act of killing. In the instant case, appellants,
unlike the accused in the instances cited, found no circumstances whatsoever which
would press them to immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his identity without hazard to
themselves, and could even effect a bloodless arrest if any reasonable effort to that end
had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is
the only legitimate course of action for appellants to follow even if the victim was really
Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get
him dead or alive only if resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such force as is reasonably
necessary to secure and detain the offender, overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46
Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton
violence, or in resorting to dangerous means when the arrest could be effected otherwise
(6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No
unnecessary or unreasonable force shall be used in making an arrest, and the person
arrested shall not be subject to any greater restraint than is necessary for his detention."
(Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability
if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753;
U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious
criminal, a life-termer, a fugitive from justice and a menace to the peace of the
community, but these facts alone constitute no justification for killing him when in effecting
his arrest, he offers no resistance or in fact no resistance can be offered, as when he is
asleep. This, in effect, is the principle laid down, although upon different facts, in
U.S. vs. Donoso (3 Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken by storm" without regard
to his right to life which he has by such notoriety already forfeited. We may approve of this
standard of official conduct where the criminal offers resistance or does something which
places his captors in danger of imminent attack. Otherwise we cannot see how, as in the
present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the
hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official
alertness and vigilance; it never can justify precipitate action at the cost of human life.
Where, as here, the precipitate action of the appellants has cost an innocent life and there
exist no circumstances whatsoever to warrant action of such character in the mind of a
reasonably prudent man, condemnation — not condonation — should be the rule;
otherwise we should offer a premium to crime in the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence, the killing being
intentional and not accidental. In criminal negligence, the injury caused to another should
be unintentional, it being simply the incident of another act performed without malice.
(People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de
imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de dañar;
existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas
que no haya sido la intencion del agente el causar un mal de tanta gravedad como el
que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once
held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with
the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil.,
16), and where such unlawful act is wilfully done, a mistake in the identity of the intended
victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to
support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is murder with the qualifying
circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting
in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal
Code. According to such legal provision, a person incurs no criminal liability when he acts in
the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites
in order that the circumstance may be taken as a justifying one: (a) that the offender
acted in the performance of a duty or in the lawful exercise of a right; and (b) that the
injury or offense committed be the necessary consequence of the due performance of
such duty or the lawful exercise of such right or office. In the instance case, only the first
requisite is present — appellants have acted in the performance of a duty. The second
requisite is wanting for the crime by them committed is not the necessary consequence of
a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or
162
alive if resistance is offered by him and they are overpowered. But through impatience or
over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of
such duty by killing the person whom they believed to be Balagtas without any resistance
from him and without making any previous inquiry as to his identity. According to article 69
of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed
by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are hereby declared guilty of
murder with the mitigating circumstance above mentioned, and accordingly sentenced to
an indeterminate penalty of from five (5) years of prision correctional to fifteen (15) years
of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased
Serapio Tecson jointly and severally an indemnity of P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.
Separate Opinions
PARAS, J., dissenting:
Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form
Manila to the provinces. Receiving information to the effect that he was staying with one
Irene in Cabanatuan, Nueva Ecija, the office of the Constabulary in Manila ordered the
Provincial Inspector in Cabanatuan by telegram dispatched on December 25, 1938, to get
Balagtas "dead or alive". Among those assigned to the task of carrying out the said order,
were Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a
Constabulary corporal, to whom the telegram received by the Provincial Inspector and a
newspaper picture of Balagtas were shown. Oanis, Galanta and a Constabulary private,
after being told by the Provincial Inspector to gather information about Balagtas, "to arrest
him and, if overpowered, to follow the instructions contained in the telegram," proceeded
to the place where the house of Irene was located. Upon arriving thereat, Oanis
approached Brigida Mallari, who was then gathering banana stalks in the yard, and
inquired for the room of Irene. After Mallari had pointed out the room, she was asked by
Oanis to tell where Irene's paramour, Balagtas, was, whereupon Mallari answered that he
was sleeping with Irene. Upon reaching the room indicated, Oanis and Galanta, after the
former had shouted "Stand up, if you are Balagtas," started shooting the man who was
found by them lying down beside a woman. The man was thereby killed, but Balagtas was
still alive, for it turned out that the person shot by Oanis and Galanta was one Serapio
Tecson.
Consequently, Oanis and Galanta were charged with having committed murder. The Court
of First Instance of Nueva Ecija, however, convicted them only of homicide through reckless
imprudence and sentenced them each to suffer the indeterminate penalty of from 1 year
and 6 months to 2 years and 2 months of prision correctional, to jointly and severally
indemnify the heirs of Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis
and Galanta have appealed.
In accomplishing the acts with which the appellants were charged, they undoubtedly
followed the order issued by the Constabulary authorities in Manila requiring the Provincial
Inspector in Cabanatuan to get Balagtas dead or alive, in the honest belief that Serapio
Tecson was Anselmo Balagtas. As the latter became a fugitive criminal, with revolvers in his
possession and a record that made him extremely dangerous and a public terror, the
Constabulary authorities were justified in ordering his arrest, whether dead or alive. In view
of said order and the danger faced by the appellants in carrying it out, they cannot be
said to have acted feloniously in shooting the person honestly believed by them to be the
wanted man. Conscious of the fact that Balagtas would rather kill than be captured, the
appellants did not want to take chances and should not be penalized for such prudence.
On the contrary, they should be commended for their bravery and courage bordering on
recklessness because, without knowing or ascertaining whether the wanted man was in
fact asleep in his room, they proceeded thereto without hesitation and thereby exposed
their lives to danger.
The Solicitor-General, however, contends that the appellants were authorized to use their
revolvers only after being overpowered by Balagtas. In the first place, the alleged
instruction by the Provincial Inspector to that effect, was in violation of the express order
given by the Constabulary authorities in Manila and which was shown to the appellants. In
the second place, it would indeed be suicidal for the appellants or, for that matter, any
agent of the authority to have waited until they have been overpowered before trying to
put our such a character as Balagtas. In the third place, it is immaterial whether or not the
instruction given by the Provincial Inspector was legitimate and proper, because the facts
exist that the appellants acted in conformity with the express order of superior Constabulary
authorities, the legality or propriety of which is not herein questioned.
The theory of the prosecution has acquired some plausibility, though quite psychological or
sentimental, in view only of the fact that it was not Balagtas who was actually killed, but an
"innocent man . . . while he was deeply asleep." Anybody's heart will be profoundly grieved
by the trade, but in time will be consoled by the realization that the life of Serapio Tecson
was not vainly sacrificed, for the incident will always serve as a loud warning to any one
desiring to follow in the footsteps of Anselmo Balagtas that in due time the duly constituted
authorities will, upon proper order, enforce the summary forfeiture of his life.
In my opinion, therefore, the appellants are not criminally liable if the person killed by them
was in fact Anselmo Balagtas for the reason that they did so in the fulfillment of their duty
and in obedience to an order issued by a superior for some lawful purpose (Revised Penal
Code, art. 11, pars. 5 and 6). They also cannot be held criminally liable even if the person
killed by them was not Anselmo Balagtas, but Serapio Tecson, because they did so under
163
an honest mistake of fact not due to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil.,
488).
It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any
person committing a felony although the wrongful act done be different from that which
he intended; but said article is clearly inapplicable since the killing of the person who was
believed to be Balagtas was, as already stated, not wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point,
inasmuch as the defendant therein, who intended to injure Hilario Lauigan with whom he
had a quarrel, but killed another by mistake, would not be exempted from criminal liability if
he actually injured or killed Hilario Lauigan, there being a malicious design on his part. The
other case involved by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in
point, as it appears that the defendants therein killed one Pedro Almasan after he had
already surrendered and allowed himself to be bound and that the said defendants did
not have lawful instructions from superior authorities to capture Almasan dead or alive.
The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis
and Alberto Galanta, acquitted, with costs de oficio.
HONTIVEROS, J., dissenting:
According to the opinion of the majority, it is proper to follow the rule that a notorious
criminal "must be taken by storm without regard to his life which he has, by his conduct,
already forfeited," whenever said criminal offers resistance or does something which places
his captors in danger of imminent attack. Precisely, the situation which confronted the
accused-appellants Antonio Z. Oanis and Alberto Galanta in the afternoon of December
24, 1938, was very similar to this. It must be remembered that both officers received
instructions to get Balagtas "dead or alive" and according to the attitude of not only the
said appellants but also of Capt. Monsod, constabulary provincial inspector of Nueva Ecija,
it may be assumed that said instructions gave more emphasis to the first part; namely, to
take him dead. It appears in the record that after the shooting, and having been informed
of the case, Capt. Monsod stated that Oanis and Galanta might be decorated for what
they had done. That was when all parties concerned honestly believed that the dead
person was Balagtas himself, a dangerous criminal who had escaped from his guards and
was supposedly armed with a .45 caliber pistol Brigida Mallari, the person whom the
appellants met upon arriving at the house of Irene Requinea, supposed mistress of
Balagtas, informed them that said Balagtas was upstairs. Appellants found there asleep a
man closely resembling the wanted criminal. Oanis said: If you are Balagtas stand up," But
the supposed criminal showed his intention to attack the appellants, a conduct easily
explained by the fact that he should have felt offended by the intrusion of persons in the
room where he was peacefully lying down with his mistress. In such predicament, it was
nothing but human on the part of the appellants to employ force and to make use of their
weapons in order to repel the imminent attack by a person who, according to their belief,
was Balagtas It was unfortunate, however that an innocent man was actually killed. But
taking into consideration the facts of the case, it is, according to my humble opinion,
proper to apply herein the doctrine laid down in the case of U.S. vs. Ah Chong (15 Phil.,
488). In the instant case we have, as in the case supra, an innocent mistake of fact
committed without any fault or carelessness on the part of the accused, who having no
time to make a further inquiry, had no alternative but to take the facts as they appeared to
them and act immediately.
The decision of the majority, in recognition of the special circumstances of this case which
favored the accused-appellants, arrives at the conclusion that an incomplete justifying
circumstance may be invoked, and therefore, according to Article 69 of the Revised Penal
Code, the imposable penalty should be one which is lower by one or two degrees than
that prescribed by law. This incomplete justifying circumstance is that defined in Article 11,
No. 5 of the Revised Penal Code, in favor of "a person who acts in the fulfillment of a duty or
in the lawful exercise of a right or office." I believe that the application of this circumstance
is not proper. Article 69 of the Revised Penal Code provides as follows:
Art. 69. Penalty to be imposed when the crime committed is not wholly excusable.
— A penalty lower by one or two degrees than that prescribed by law shall be
imposed if the deed is not wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt from criminal liability in the
several cases mentioned in articles 11 and 12, provided that the majority of such
conditions be present. The courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the conditions of
exemption present or lacking.
This provision has been copied almost verbatim from Article 84 of the old Penal Code of the
Philippines, and which was also taken from Article 87 of the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee created by
Administrative Order No. 94 of the Department of Justice for the drafting of the Revised
Penal Code, in commenting on Article 69, said that the justifying circumstances and
circumstances exempting from liability which are the subject matter of this article are the
following: self-defense, defense of relatives, defense of strangers, state of necessity and
injury caused by mere accident. Accordingly, justifying circumstance No. 5 of Article 11
dealing with the fulfillment of a duty or the lawful exercise of a right, calling or office,
cannot be placed within its scope.
The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the
Spanish Penal Code of 1870 which is the source of Article 69 of our Code says:
Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que
obra violentado por una fuerza inrresistible o impulsado por miedo insuperable de
164
un mal igual o mayor, o en cumplimiento de un deber, o en el ejercito legitimo de
un derecho, oficio o cargo, o en virtud de obediencia debida, ni del que incurre
en alguna omision hallandose impedido por causa legitima o insuperable, puede
tener aplicacion al articulo que comentamos. Y la razon es obvia. En ninguna de
estas execiones hay pluralidad de requisitos. La irrespondabilidad depende de
una sola condicion. Hay o no perturbacion de la razon; el autor del hecho es o no
menor de nueve años; existe o no violencia material o moral irresistible, etc., etc.;
tal es lo que respectivamente hay que examinar y resolver para declarar la
culpabilidad o inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el
texto que va al frente de estas lineas rquiere, para que se imponga al autor del
hecho la penalidad excepcional que establece; esto es, que
falten algunos requisitos de los que la ley exige para eximir de responsabilidad, y
que concurran el mayor numero de ellos, toda vez que, en los casos referidos, la
ley no exige multiples condiciones.
It must be taken into account the fact according to Article 69 a penalty lower by one or
two degrees than that prescribed by law shall be imposed if the deed is not wholly
excusable by reason of the lack of some of the conditions required by the law to justify the
same or exempt from criminal liability. The word "conditions" should not be confused with
the word "requisites". In dealing with justifying circumstance No. 5 Judge Guevara states:
"There are two requisites in order that this circumstance may be taken into account: (a)
That the offender acted in the performance of his duty or in the lawful exercise of a right;
and (b) That the injury or offense committed be the necessary consequence of the
performance of a duty or the lawful exercise of a right or office." It is evident that these two
requisites concur in the present case if we consider the intimate connection between the
order given to the appellant by Capt. Monsod, the showing to them of the telegram from
Manila to get Balagtas who was with a bailarina named Irene, the conduct of said
appellants in questioning Brigida Mallari and giving a warning to the supposed criminal
when both found him with Irene, and the statement made by Capt. Monsod after the
shooting.
If appellant Oanis is entitled to a reversal of the decision of the court below, there are more
reasons in favor of the acquittal of appellant Galanta. According to the evidence no bullet
from the gun fired by this accused ever hit Serapio Tecson. Galanta was armed in the
afternoon of December 24, 1938, with a .45 caliber revolver (Exhibit L). He so testified and
was corroborated by the unchallenged testimony of his superior officer Sgt. Valeriano
Serafica. According to this witness, since Galanta was made a corporal of the
Constabulary he was given, as part of his equipment, revolver Exhibit L with a serial No.
37121. This gun had been constantly used by Galanta, and, according to Sgt. Pedro
Marasigan, who accompanied said accused when he took it from his trunk in the barracks
on the night of December 24, 1938, upon order of Captain Monsod, it was the same LUZVIMINDA F. LOBATON petitioner,
revolver which was given to the witness with five .45 caliber bullets and one empty shell. vs.
Fourteen unused bullets were also taken from Galanta by Sergeant Serafica, thus HONORABLE GLICERIO L. CRUZ, in his capacity as Presiding Executive Judge, Branch V,
completing his regular equipment of twenty bullets which he had on the morning of Region IV, Regional Trial Court, sitting at Lemery, Batangas, THE PROVINCIAL FISCAL OF
December 24, 1938, when Sergeant Serafica made the usual inspection of the firearms in BATANGAS, and MARIA LUISA TORDECILLA, respondents.
the possession of the non-commissioned officers and privates of the constabulary post at G.R No. 71654 December 18, 1986
Cabanatuan. Galanta stated that he had fired only one shot and missed. This testimony is ANTONIO DATUIN and SUSAN DATUIN, petitioners,
corroborated by that of a ballistic expert who testified that bullets exhibits F and O, — the vs.
first being extracted from the head of the deceased, causing wound No. 3 of autopsy HONORABLE JUDGE ERNANI C. PANO, Regional Trial Court, Quezon City, Branch LXXXVIII,
report Exhibit C and the second found at the place of the shooting, — had not been fired HONORABLE ClTY FISCAL OF QUEZON CITY, respondents.
from revolver Exhibit L nor from any other revolver of the constabulary station in G.R. No. 74524-25 December 18, 1986
Cabanatuan. It was impossible for the accused Galanta to have substituted his revolver OSCAR VIOLAGO, petitioner,
because when Exhibit L was taken from him nobody in the barracks doubted that the vs.
deceased was none other than Balagtas. Moreover, Exhibit L was not out of order and HONORABLE JUDGE ERNANI C. PAÑ;O Regional Trial Court, Quezon City, Branch LXXXVIII,
therefore there was no reason why Galanta should carry along another gun, according to HONORABLE CITY FISCAL OF QUEZON CITY, respondents.
the natural course of things. On the other hand, aside from wound No. 3 as above stated, G.R. No. 75122-49 December 18, 1986
no other wound may be said to have been caused by a .45 caliber revolver bullet. Doctor ELINOR ABAD, petitioner,
Castro's record gives the conclusion that wound No. 2 must have been caused by a .45 vs.
caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must THE HONORABLE NICOLAS A. GEROCHI, JR., in his capacity as Presiding Judge, Regional
have been caused by a .45 caliber bullet, but inasmuch as the diameter of the wound's Trial Court, National Capital Judicial Region, Branch 139, Makati and FEDERICO L.
entrance was only 8 mm., the caliber should be .32 and not .45, because according to the MELOCOTTON JR., in his capacity as Trial Fiscal Regional Trial Court, Branch 139,
medico-legal expert who testified in this case, a bullet of a .45 caliber will produce a wound Makati, respondents.
entrance with either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon G.R No. 75812-13 December 18, 1986
who performed the autopsy appeared to have been caused by bullets of a lesser caliber. AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ, spouses, petitioners,
In consequence, it can be stated that no bullet fired by Galanta did ever hit or kill Serapio vs.
Tecson and therefore there is no reason why he should be declared criminally responsible HONORABLE PRESIDING JUDGE OF BRANCH 154, now vacant but temporarily presided by
for said death. HONORABLE ASAALI S. ISNANI Branch 153, Court of First Instance of Pasig, Metro
Republic of the Philippines Manila, respondent.
SUPREME COURT G.R No. 75765-67 December 18, 1986
Manila LUIS M. HOJAS, petitioner,
EN BANC vs.
G.R. No. L-63419 December 18, 1986 HON. JUDGE SENEN PENARANDA, Presiding Judge, Regional Trial Court of Cagayan de Oro
FLORENTINA A. LOZANO, petitioner, City, Branch XX, HONORABLE JUDGE ALFREDO LAGAMON, Presiding Judge, Regional Trial
vs. Court of Cagayan de Oro City, Branch XXII, HONORABLE CITY FISCAL NOLI T. CATHI, City
THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as Presiding Judge, Regional Trial Fiscal of Cagayan de Oro City, respondents.
Court, National Capital Judicial Region, Branch XX, Manila, and the HONORABLE JOSE B. G.R. No. 75789 December 18, 1986
FLAMINIANO, in his capacity as City Fiscal of Manila, respondents. THE PEOPLE OF THE PHILIPPINES, petitioner,
G.R. No. L-66839-42 December 18, 1986 vs.

165
HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court, National Capital Judicial
Region, Branch 52, Manila and THELMA SARMIENTO, respondents.
R.R. Nogales Law Office for petitioner in G.R. No. 63419, G.R. Nos. 74524-25, G.R. Nos. 75812-
13, G.R. Nos. 75765-67 and counsel for respondent in G.R. No. 75789.
Pio S. Canta for petitioner in G.R. Nos. 66839-42.
Hermogenes Datuin, Jr. for petitioner in G.R. No. 71654.
Abinoja, Tabalingcos, Villalon & Associates for petitioner in G.R. Nos. 75122-49.
The Solicitor General for respondent in G.R. No. 63419, G.R. Nos. 66839-42, G.R. No. 71654,
G.R. Nos. 74524-25, G.R. Nos. 75122-49, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel
for petitioner in G.R. No. 75789.
YAP, J.:
The constitutionality of Batas Pambansa Bilang 22 (BP 22 for short), popularly known as the
Bouncing Check Law, which was approved on April 3, 1979, is the sole issue presented by
these petitions for decision. The question is definitely one of first impression in our jurisdiction.
These petitions arose from cases involving prosecution of offenses under the statute. The
defendants in those cases moved seasonably to quash the informations on the ground that
the acts charged did not constitute an offense, the statute being unconstitutional. The
motions were denied by the respondent trial courts, except in one case, which is the
subject of G. R. No. 75789, wherein the trial court declared the law unconstitutional and
dismissed the case. The parties adversely affected have come to us for relief.
As a threshold issue the former Solicitor General in his comment on the petitions, maintained
the posture that it was premature for the accused to elevate to this Court the orders
denying their motions to quash, these orders being interlocutory. While this is correct as a
general rule, we have in justifiable cases intervened to review the lower court's denial of a
motion to quash. In view of the importance of the issue involved here, there is no doubt in
1 introduction in evidence of the unpaid and dishonored check with the drawee bank's
our mind that the instant petitions should be entertained and the constitutional challenge
to BP 22 resolved promptly, one way or the other, in order to put to rest the doubts and
uncertainty that exist in legal and judicial circles and the general public which have
unnecessarily caused a delay in the disposition of cases involving the enforcement of the
statute.
For the purpose of resolving the constitutional issue presented here, we do not find it
necessary to delve into the specifics of the informations involved in the cases which are the
subject of the petitions before us. 2 The language of BP 22 is broad enough to cover all kinds
of checks, whether present dated or postdated, or whether issued in payment of pre-
existing obligations or given in mutual or simultaneous exchange for something of value.
I interests.
166
BP 22 punishes a person "who makes or draws and issues any check on account or for
value, knowing at the time of issue that he does not have sufficient funds in or credit with
the drawee bank for the payment of said check in full upon presentment, which check is
subsequently dishonored by the drawee bank for insufficiency of funds or credit or would
have been dishonored for the same reason had not the drawer, without any valid reason,
ordered the bank to stop payment." The penalty prescribed for the offense is imprisonment
of not less than 30 days nor more than one year or a fine or not less than the amount of the
check nor more than double said amount, but in no case to exceed P200,000.00, or both
such fine and imprisonment at the discretion of the court. 3
The statute likewise imposes the same penalty on "any person who, having sufficient funds
in or credit with the drawee bank when he makes or draws and issues a check, shall fail to
keep sufficient funds or to maintain a credit to cover the full amount of the check if
presented within a period of ninety (90) days from the date appearing thereon, for which
reason it is dishonored by the drawee bank. 4
An essential element of the offense is "knowledge" on the part of the maker or drawer of
the check of the insufficiency of his funds in or credit with the bank to cover the check
upon its presentment. Since this involves a state of mind difficult to establish, the statute
itself creates a prima facie presumption of such knowledge where payment of the check "is
refused by the drawee because of insufficient funds in or credit with such bank when
presented within ninety (90) days from the date of the check. 5 To mitigate the harshness of
the law in its application, the statute provides that such presumption shall not arise if within
five (5) banking days from receipt of the notice of dishonor, the maker or drawer makes
arrangements for payment of the check by the bank or pays the holder the amount of the
check.
Another provision of the statute, also in the nature of a rule of evidence, provides that the
refusal to pay "stamped or written thereon or attached thereto, giving the reason therefor,
"shall constitute prima facie proof of "the making or issuance of said check, and the due
presentment to the drawee for payment and the dishonor thereof ... for the reason written,
stamped or attached by the drawee on such dishonored check." 6
The presumptions being merely prima facie, it is open to the accused of course to present
proof to the contrary to overcome the said presumptions.
II
BP 22 is aimed at putting a stop to or curbing the practice of issuing checks that are
worthless, i.e. checks that end up being rejected or dishonored for payment. The practice,
as discussed later, is proscribed by the state because of the injury it causes to t public
Before the enactment of BP 22, provisions already existed in our statute books which
penalize the issuance of bouncing or rubber checks. Criminal law has dealth with the
problem within the context of crimes against property punished as "estafa" or crimes
involving fraud and deceit. The focus of these penal provisions is on the damage caused to
the property rights of the victim.
The Penal Code of Spain, which was in force in the Philippines from 1887 until it was
replaced by the Revised Penal Code in 1932, contained provisions penalizing, among
others, the act of defrauding another through false pretenses. Art. 335 punished a person
who defrauded another "by falsely pretending to possess any power, influence,
qualification, property, credit, agency or business, or by means of similar deceit." Although
no explicit mention was made therein regarding checks, this provision was deemed to
cover within its ambit the issuance of worthless or bogus checks in exchange for money. 7 Republic Act No. 4885, revising the aforesaid proviso to read as follows:
In 1926, an amendment was introduced by the Philippine Legislature, which added a new
clause (paragraph 10) to Article 335 of the old Penal Code, this time referring in explicit
terms to the issuance of worthless checks. The amendment penalized any person who 1)
issues a check in payment of a debt or for other valuable consideration, knowing at the
time of its issuance that he does not have sufficient funds in the bank to cover its amount,
or 2) maliciously signs the check differently from his authentic signature as registered at the
bank in order that the latter would refuse to honor it; or 3) issues a postdated check and, at
the date set for its payment, does not have sufficient deposit to cover the same.8
In 1932, as already adverted to, the old Penal Code was superseded by the Revised Penal
Code. The above provisions, in amended form, were incorporated in Article 315 of the
9 does not cover checks issued in payment of pre-existing obligations, again relying on the
Revised Penal Code defining the crime of estafa. The revised text of the provision read as
follows:
Art. 315. Swindling (estafa).—Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:
xxx xxx xxx
2. By means of any of the following false pretenses or fraudulent acts executed
prior to or simultaneously with the commis sion of the fraud:
(a) By using fictitious name, or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits;
xxx xxx xxx
(d) By postdating a check, or issuing a check in payment of an
obligation the offender knowing that at the time he had no funds in the
bank, or the funds deposited by him were not sufficient to cover the
amount of the cheek without informing the payee of such
circumstances.
167
The scope of paragraph 2 (d), however, was deemed to exclude checks issued in payment
of pre-existing obligations. 10 The rationale of this interpretation is that in estafa, the deceit
causing the defraudation must be prior to or simultaneous with the commission of the fraud.
In issuing a check as payment for a pre-existing debt, the drawer does not derive any
material benefit in return or as consideration for its issuance. On the part of the payee, he
had already parted with his money or property before the check is issued to him hence, he
is not defrauded by means of any "prior" or "simultaneous" deceit perpetrated on him by
the drawer of the check.
With the intention of remedying the situation and solving the problem of how to bring
checks issued in payment of pre-existing debts within the ambit of Art. 315, an amendment
was introduced by the Congress of the Philippines in 1967, 11 which was enacted into law as
(d) By postdating a check, or issuing a check in payment of an obligation when
the offender had no funds in the bank, or his funds deposited therein were not
sufficient to cover the amount of the check. The failure of the drawer of the check
to deposit the amount necessary to cover his check within three (3) days from
receipt of notice from the bank and/or the payee or holder that said check has
been dishonored for lack or insufficiency of funds shall be puma facie evidence of
deceit constituting false pretense or fraudulent act.
However, the adoption of the amendment did not alter the situation materially. A divided
Court held in People vs. Sabio, Jr. 12 that Article 315, as amended by Republic Act 4885,
concept underlying the crime of estafa through false pretenses or deceit—which is, that the
deceit or false pretense must be prior to or simultaneous with the commission of the fraud.
Since statistically it had been shown that the greater bulk of dishonored checks consisted of
those issued in payment of pre-existing debts, 13 the amended provision evidently failed to
cope with the real problem and to deal effectively with the evil that it was intended to
eliminate or minimize.
With the foregoing factual and legal antecedents as a backdrop, the then Interim Batasan
confronted the problem squarely. It opted to take a bold step and decided to enact a law
dealing with the problem of bouncing or worthless checks, without attaching the law's
umbilical cord to the existing penal provisions on estafa. BP 22 addresses the problem
directly and frontally and makes the act of issuing a worthless check malum prohibitum. 14
The question now arises: Is B P 22 a valid law?
Previous efforts to deal with the problem of bouncing checks within the ambit of the law on
estafa did not evoke any constitutional challenge. In contrast, BP 22 was challenged
promptly.
Those who question the constitutionality of BP 22 insist that: (1) it offends the constitutional
provision forbidding imprisonment for debt; (2) it impairs freedom of contract; (3) it
contravenes the equal protection clause; (4) it unduly delegates legislative and executive
powers; and (5) its enactment is flawed in that during its passage the Interim Batasan
violated the constitutional provision prohibiting amendments to a bill on Third Reading.
The constitutional challenge to BP 22 posed by petitioners deserves a searching and
thorough scrutiny and the most deliberate consideration by the Court, involving as it does
the exercise of what has been described as "the highest and most delicate function which
belongs to the judicial department of the government." 15
As we enter upon the task of passing on the validity of an act of a co-equal and
coordinate branch of the government, we need not be reminded of the time-honored
principle, deeply ingrained in our jurisprudence, that a statute is presumed to be valid.
Every presumption must be indulged in favor of its constitutionality. This is not to say that we
approach our task with diffidence or timidity. Where it is clear that the legislature has
overstepped the limits of its authority under the constitution we should not hesitate to wield
the axe and let it fall heavily, as fall it must, on the offending statute.
III
Among the constitutional objections raised against BP 22, the most serious is the alleged
conflict between the statute and the constitutional provision forbidding imprisonment for
debt. It is contended that the statute runs counter to the inhibition in the Bill of Rights which
states, "No person shall be imprisoned for debt or non-payment of a poll tax." 16 Petitioners
insist that, since the offense under BP 22 is consummated only upon the dishonor or non-
payment of the check when it is presented to the drawee bank, the statute is really a "bad
debt law" rather than a "bad check law." What it punishes is the non-payment of the check,
not the act of issuing it. The statute, it is claimed, is nothing more than a veiled device to
coerce payment of a debt under the threat of penal sanction.
First of all it is essential to grasp the essence and scope of the constitutional inhibition
invoked by petitioners. Viewed in its historical context, the constitutional prohibition against
imprisonment for debt is a safeguard that evolved gradually during the early part of the
nineteenth century in the various states of the American Union as a result of the people's
revulsion at the cruel and inhumane practice, sanctioned by common law, which
permitted creditors to cause the incarceration of debtors who could not pay their debts. At
common law, money judgments arising from actions for the recovery of a debt or for
damages from breach of a contract could be enforced against the person or body of the
debtor by writ of capias ad satisfaciendum. By means of this writ, a debtor could be seized
and imprisoned at the instance of the creditor until he makes the satisfaction awarded. As
a consequence of the popular ground swell against such a barbarous practice, provisions
168
forbidding imprisonment for debt came to be generally enshrined in the constitutions of
various states of the Union. 17
This humanitarian provision was transported to our shores by the Americans at the turn of
t0he century and embodied in our organic laws. 18 Later, our fundamental law outlawed
not only imprisonment for debt, but also the infamous practice, native to our shore, of
throwing people in jail for non-payment of the cedula or poll tax. 19
The reach and scope of this constitutional safeguard have been the subject of judicial
definition, both by our Supreme Court 20 and by American State courts.21 Mr. Justice
Malcolm speaking for the Supreme Court in Ganaway vs. Queen, 22 stated: "The 'debt'
intended to be covered by the constitutional guaranty has a well-defined meaning.
Organic provisions relieving from imprisonment for debt, were intended to prevent
commitment of debtors to prison for liabilities arising from actions ex contractu The inhibition
was never meant to include damages arising in actions ex delicto, for the reason that
damages recoverable therein do not arise from any contract entered into between the
parties but are imposed upon the defendant for the wrong he has done and are
considered as punishment, nor to fines and penalties imposed by the courts in criminal
proceedings as punishments for crime."
The law involved in Ganaway was not a criminal statute but the Code of Procedure in Civil
Actions (1909) which authorized the arrest of the defendant in a civil case on grounds akin
to those which justify the issuance of a writ of attachment under our present Rules of Court,
such as imminent departure of the defendant from the Philippines with intent to defraud his
creditors, or concealment, removal or disposition of properties in fraud of creditors, etc. The
Court, in that case, declared the detention of the defendant unlawful, being violative of
the constitutional inhibition against imprisonment for debt, and ordered his release. The
Court, however, refrained from declaring the statutory provision in question
unconstitutional.
Closer to the case at bar is People v. Vera Reyes,23 wherein a statutory provision which
made illegal and punishable the refusal of an employer to pay, when he can do so, the
salaries of his employees or laborers on the fifteenth or last day of every month or on
Saturday every week, was challenged for being violative of the constitutional prohibition
against imprisonment for debt. The constitutionality of the law in question was upheld by
the Court, it being within the authority of the legislature to enact such a law in the exercise
of the police power. It was held that "one of the purposes of the law is to suppress possible
abuses on the part of the employers who hire laborers or employees without paying them
the salaries agreed upon for their services, thus causing them financial difficulties. "The law
was viewed not as a measure to coerce payment of an obligation, although obviously
such could be its effect, but to banish a practice considered harmful to public welfare.
IV
Has BP 22 transgressed the constitutional inhibition against imprisonment for debt? To
answer the question, it is necessary to examine what the statute prohibits and punishes as
an offense. Is it the failure of the maker of the check to pay a debt? Or is it the making and
issuance of a worthless check in payment of a debt? What is the gravamen of the offense?
This question lies at the heart of the issue before us.
The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless
check or a check that is dishonored upon its presentation for payment. It is not the non-
payment of an obligation which the law punishes. The law is not intended or designed to
coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal
sanctions, the making of worthless checks and putting them in circulation. Because of its
deleterious effects on the public interest, the practice is proscribed by the law. The law
punishes the act not as an offense against property, but an offense against public order.
Admittedly, the distinction may seem at first blush to appear elusive and difficult to
conceptualize. But precisely in the failure to perceive the vital distinction lies the error of
those who challenge the validity of BP 22.
It may be constitutionally impermissible for the legislature to penalize a person for non-
payment of a debt ex contractu But certainly it is within the prerogative of the lawmaking
body to proscribe certain acts deemed pernicious and inimical to public welfare.
Acts mala in se are not the only acts which the law can punish. An act may not be
considered by society as inherently wrong, hence, not malum in se but because of the
harm that it inflicts on the community, it can be outlawed and criminally punished
as malum prohibitum. The state can do this in the exercise of its police power.
The police power of the state has been described as "the most essential, insistent and
illimitable of powers" which enables it to prohibit all things hurtful to the comfort, safety and
welfare of society. 24 It is a power not emanating from or conferred by the constitution, but
inherent in the state, plenary, "suitably vague and far from precisely defined, rooted in the
conception that man in organizing the state and imposing upon the government limitations
to safeguard constitutional rights did not intend thereby to enable individual citizens or
group of citizens to obstruct unreasonably the enactment of such salutary measures to
ensure communal peace, safety, good order and welfare." 25
The enactment of BP 22 is a declaration by the legislature that, as a matter of public policy,
the making and issuance of a worthless check is deemed public nuisance to be abated by
the imposition of penal sanctions.
It is not for us to question the wisdom or impolicy of the statute. It is sufficient that a
reasonable nexus exists between means and end. Considering the factual and legal
antecedents that led to the adoption of the statute, it is not difficult to understand the
public concern which prompted its enactment. It had been reported that the approximate
value of bouncing checks per day was close to 200 million pesos, and thereafter when
169
overdrafts were banned by the Central Bank, it averaged between 50 minion to 80 million
pesos a day. 26
By definition, a check is a bill of exchange drawn on a bank and payable on demand. 27 It
is a written order on a bank, purporting to be drawn against a deposit of funds for the
payment of all events, of a sum of money to a certain person therein named or to his order
or to cash and payable on demand. 28 Unlike a promissory note, a check is not a mere
undertaking to pay an amount of money. It is an order addressed to a bank and partakes
of a representation that the drawer has funds on deposit against which the check is drawn,
sufficient to ensure payment upon its presentation to the bank. There is therefore an
element of certainty or assurance that the instrument wig be paid upon presentation. For
this reason, checks have become widely accepted as a medium of payment in trade and
commerce. Although not legal tender, checks have come to be perceived as convenient
substitutes for currency in commercial and financial transactions. The basis or foundation of
such perception is confidence. If such confidence is shakes the usefulness of checks as
currency substitutes would be greatly diminished or may become nit Any practice therefore
tending to destroy that confidence should be deterred for the proliferation of worthless
checks can only create havoc in trade circles and the banking community.
Recent statistics of the Central Bank show that one-third of the entire money supply of the
country, roughly totalling P32.3 billion, consists of peso demand deposits; the remaining
two. 29 These de deposit thirds consists of currency in circulation. ma deposits in the banks
constitute the funds against which among others, commercial papers like checks, are
drawn. The magnitude of the amount involved amply justifies the legitimate concern of the
state in preserving the integrity of the banking system. Flooding the system with worthless
checks is like pouring garbage into the bloodstream of the nation's economy.
The effects of the issuance of a worthless check transcends the private interests of the
parties directly involved in the transaction and touches the interests of the community at
large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to
the public. The harmful practice of putting valueless commercial papers in circulation,
multiplied a thousand fold, can very wen pollute the channels of trade and commerce,
injure the banking system and eventually hurt the welfare of society and the public interest.
As aptly stated — 30
The 'check flasher' does a great deal more than contract a debt; he shakes the
pillars of business; and to my mind, it is a mistaken charity of judgment to place
him in the same category with the honest man who is unable to pay his debts,
and for whom the constitutional inhibition against' imprisonment for debt, except
in cases of fraud was intended as a shield and not a sword.
In sum, we find the enactment of BP 22 a valid exercise of the police power and is not
repugnant to the constitutional inhibition against imprisonment for debt.
This Court is not unaware of the conflicting jurisprudence obtaining in the various states of
the United States on the constitutionality of the "worthless check" acts. 31 It is needless to
warn that foreign jurisprudence must be taken with abundant caution. A caveat to be
observed is that substantial differences exist between our statute and the worthless check
acts of those states where the jurisprudence have evolved. One thing to remember is that
BP 22 was not lifted bodily from any existing statute. Furthermore, we have to consider that
judicial decisions must be read in the context of the facts and the law involved and, in a
broader sense, of the social economic and political environment—in short, the milieu—
under which they were made. We recognize the wisdom of the old saying that what is
sauce for the goose may not be sauce for the gander.
As stated elsewhere, police power is a dynamic force that enables the state to meet the
exigencies of changing times. There are occasions when the police power of the state may
even override a constitutional guaranty. For example, there have been cases wherein we
held that the constitutional provision on non-impairment of contracts must yield to the
police power of the state. 32 Whether the police power may override the constitutional
inhibition against imprisonment for debt is an issue we do not have to address. This bridge
has not been reached, so there is no occasion to cross it.
We hold that BP 22 does not conflict with the constitutional inhibition against imprisonment
for debt.
V Second Reading was altered or changed in the printed text of the bill submitted for
We need not detain ourselves lengthily in the examination of the other constitutional
objections raised by petitioners, some of which are rather flimsy.
We find no valid ground to sustain the contention that BP 22 impairs freedom of contract.
The freedom of contract which is constitutionally protected is freedom to enter into "lawful"
contracts. Contracts which contravene public policy are not lawful. 33 Besides, we must
bear in mind that checks can not be categorized as mere contracts. It is a commercial
instrument which, in this modem day and age, has become a convenient substitute for
money; it forms part of the banking system and therefore not entirely free from the
regulatory power of the state.
Neither do we find substance in the claim that the statute in question denies equal
protection of the laws or is discriminatory, since it penalizes the drawer of the check, but not
the payee. It is contended that the payee is just as responsible for the crime as the drawer
of the check, since without the indispensable participation of the payee by his
acceptance of the check there would be no crime. This argument is tantamount to saying
that, to give equal protection, the law should punish both the swindler and the swindled.
The petitioners' posture ignores the well-accepted meaning of the clause "equal protection
of the laws." The clause does not preclude classification of individuals, who may be
170
accorded different treatment under the law as long as the classification is no unreasonable
or arbitrary. 34
It is also suggested that BP 22 constitutes undue or improper delegation of legislative
powers, on the theory that the offense is not completed by the sole act of the maker or
drawer but is made to depend on the will of the payee. If the payee does not present the
check to the bank for payment but instead keeps it, there would be no crime. The logic of
the argument stretches to absurdity the meaning of "delegation of legislative power." What
cannot be delegated is the power to legislate, or the power to make laws. 35 which means,
as applied to the present case, the power to define the offense sought to be punished and
to prescribe the penalty. By no stretch of logic or imagination can it be said that the power
to define the crime and prescribe the penalty therefor has been in any manner delegated
to the payee. Neither is there any provision in the statute that can be construed, no matter
how remotely, as undue delegation of executive power. The suggestion that the statute
unlawfully delegates its enforcement to the offended party is farfetched.
Lastly, the objection has been raised that Section 9 (2) of Article VII of the 1973 Constitution
was violated by the legislative body when it enacted BP 22 into law. This constitutional
provision prohibits the introduction of amendments to a bill during the Third Reading. It is
claimed that during its Third Reading, the bill which eventually became BP 22 was
amended in that the text of the second paragraph of Section 1 of the bill as adopted on
approval on Third Reading.
A careful review of the record of the proceedings of the Interim Batasan on this matter
shows that, indeed, there was some confusion among Batasan Members on what was the
exact text of the paragraph in question which the body approved on Second
Reading. 36 Part of the confusion was due apparently to the fact that during the
deliberations on Second Reading (the amendment period), amendments were proposed
orally and approved by the body or accepted by the sponsor, hence, some members
might not have gotten the complete text of the provisions of the bill as amended and
approved on Second Reading. However, it is clear from the records that the text of the
second paragraph of Section 1 of BP 22 is the text which was actually approved by the
body on Second Reading on February 7, 1979, as reflected in the approved Minutes for
that day. In any event, before the bin was submitted for final approval on Third Reading,
the Interim Batasan created a Special Committee to investigate the matter, and the
Committee in its report, which was approved by the entire body on March 22, 1979, stated
that "the clause in question was ... an authorized amendment of the bill and the printed
copy thereof reflects accurately the provision in question as approved on Second
Reading. 37 We therefore, find no merit in the petitioners' claim that in the enactment of BP
22 the provisions of Section 9 (2) of Article VIII of the 1973 Constitution were violated.
WHEREFORE, judgment is rendered granting the petition in G.R. No. 75789 and setting aside
the order of the respondent Judge dated August 19, 1986. The petitions in G.R. Nos. 63419,
66839-42, 71654, 74524-25, 75122-49, 75812-13 and 75765-67 are hereby dismissed and the
temporary restraining order issued in G.R. Nos. 74524-25 is lifted. With costs against private
petitioners.
SO ORDERED.
Teehankee, C.J., Feria, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz,
Paras and Feliciano, JJ., concur.
SECOND DIVISION
[G.R. No. 137268. March 26, 2001]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EUTIQUIA CARMEN @ Mother
Perpetuala, CELEDONIA FABIE @ Isabel Fabie, DELIA SIBONGA @ Deding Sibonga,
ALEXANDER SIBONGA @ Nonoy Sibonga, and REYNARIO NUEZ @ Rey
Nuez, accused-appellants.
DECISION
MENDOZA, J.:
This is an appeal from the decision[1] of the Regional Trial Court, Branch 14, Cebu City,
finding accused-appellants Eutiquia Carmen @ Mother Perpetuala, Celedonia Fabie @
Isabel Fabie, Delia Sibonga @ Deding Sibonga, Alexander Sibonga @ Nonoy Sibonga, and
Reynario Nuez @ Rey Nuez guilty of murder and sentencing them to suffer the penalty
of reclusion perpetua and to pay the heirs of the victim the amount of P50,000.00 as
indemnity as well as the costs.
The information[2] against accused-appellants alleged:
That on or about the 27th day of January, 1997 at about 2:00 oclock p.m., in the City of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused,
conniving and confederating together and mutually helping one another, with deliberate
intent, with intent to kill, with treachery and evident premeditation, did then and there inflict
fatal physical injuries on one Randy Luntayao which injuries caused the death of the said
Randy Luntayao.
Accused-appellants pleaded not guilty to the charge, whereupon they were tried.
The prosecution presented evidence showing the following: At around 2 oclock in the
afternoon of January 27, 1997, Honey Fe Abella, 10, and her friend Frances Claire Rivera, 7,
were playing takyan in front of the house of one Bebing Lastimoso in Quiot, Pardo, Cebu
City, when suddenly they heard a child shout, Tabang ma! (Help mother!). The cry came
from the direction of the house of accused-appellant Carmen, who is also known in their
neighborhood as Mother Perpetuala. The two children ran towards Mother Perpetualas
house.[3] What Honey Fe saw on which she testified in court, is summarized in the decision of
the trial court, to wit:
While there[,] she saw a boy, whose name . . . she [later] came to know as one Randy
Luntayao, . . . being immersed head first in a drum of water. Accused Alexander Sibonga
was holding the waist of the body while accused Reynario Nuez held the hands of the boy
at the back. Accused Eutiquia Carmen, Delia Sibonga, and Celedonia Fabie were pushing
down the boys head into the water. She heard the boy shouting Ma, help for two
times. Later, she saw accused Reynario or Rey Nuez tie the boy on the bench with a green
rope as big as her little finger. . . . After that Eutiquia Carmen poured [water from] a plastic
container (galon) . . . into the mouth of the boy. Each time the boy struggled to raise his
head, accused Alexander Sibonga banged the boys head against the bench [to] which
the boy was tied down.She even heard the banging sound everytime the boys head hit the
bench. For about five times she heard it. According to this witness after forcing the boy to
drink water, Eutiquia Carmen and accused Celedonia Fabie alias Isabel Fabie took turns in
pounding the boys chest with their clenched fists. All the time Rey Nuez held down the boys
feet to the bench. She also witnessed . . . Celedonia Fabie dropped her weight, buttocks
first, on the body of the boy. Later on, Eutiquia Carmen ordered Delia or Deding Sibonga to
get a knife from the kitchen. Eutiquia Carmen then slowly plunged the stainless knife on the
left side of the boys body and with the use of a plastic gallon container, the top portion of
which was cut out, Eutiquia Carmen [caught] the blood dripping from the left side of the
boys body. Honey Fe heard the moaning coming from the tortured boy. Much later she
saw Nonoy or Alexander Sibonga, Reynario Nuez, Delia Sibonga, Celedonia Fabie, and
Eutiquia Carmen carry the boy into the house.[4]
Eddie Luntayao, father of the victim, testified that he has five children, the eldest of
whom, Randy, was 13 years old at the time of the incident. On November 20, 1996, Randy
had a nervous breakdown which Eddie thought was due to Randy having to skip meals
whenever he took the boy with him to the farm. According to Eddie, his son started talking
to himself and laughing. On January 26, 1997, upon the suggestion of accused-appellant
Reynario Nuez, Eddie and his wife Perlita and their three children (Randy, Jesrel, 7, and
Lesyl, 1) went with accused-appellant Nuez to Cebu. They arrived in Cebu at around 1
oclock in the afternoon of the same day and spent the night in Nuezs house in Tangke,
Talisay.
The following day, they went to the house of accused-appellant Carmen in Quiot,
Pardo,[5] where all of the accused-appellants were present. Eddie talked to accused-
appellant Carmen regarding his sons condition. He was told that the boy was possessed by
a bad spirit, which accused-appellant Carmen said she could exorcise. She warned,
however, that as the spirit might transfer to Eddie, it was best to conduct the healing prayer
without him. Accused-appellants then led Randy out of the house, while Eddie and his wife
and two daughters were locked inside a room in the house.[6]

171
 After a while, Eddie heard his son twice shout Ma, tabang! (Mother, help!). Eddie tried
to go out of the room to find out what was happening to his son, but the door was
locked. After about an hour, the Luntayaos were transferred to the prayer room which was
located near the main door of the house.[7]
A few hours later, at around 5 oclock in the afternoon, accused-appellants carried
Randy into the prayer room and placed him on the altar. Eddie was shocked by what he
saw. Randys face was bluish and contused, while his tongue was sticking out of his mouth. It
was clear to Eddie that his son was already dead. He wanted to see his sons body, but he
was stopped from doing so by accused-appellant Eutiquia Carmen who told him not to go
near his son because the latter would be resurrected at 7 oclock that evening.[8]
After 7 oclock that evening, accused-appellant Carmen asked a member of her
group to call the funeral parlor and bring a coffin as the child was already dead. It was
arranged that the body would be transferred to the house of accused-appellant
Nuez. Thus, that night, the Luntayao family, accompanied by accused-appellant Nuez,
took Randys body to Nunezs house in Tangke, Talisay. The following day, January 28, 1997,
accused-appellant Nuez told Eddie to go with him to the Talisay Municipal Health Office to
report Randys death and told him to keep quiet or they might not be able to get the
necessary papers for his sons burial. Nuez took care of securing the death certificate which
Eddie signed.[9]
At around 3 oclock in the afternoon of January 28, 1997, accused-appellant Carmen
went to Tangke, Talisay to ensure that the body was buried. Eddie and his wife told her that
they preferred to bring their sons body with them to Sikatuna, Isabela, Negros Occidental
but they were told by accused-appellant Carmen that this was not possible as she and the
other accused-appellants might be arrested. That same afternoon, Randy Luntayao was
buried in Tangke, Talisay.[10]
After Eddie and his family had returned home to Negros Occidental, Eddie sought
assistance from the Bombo Radyo station in Bacolod City which referred him to the regional
office of the National Bureau of Investigation (NBI) in the city. On February 3, 1997, Eddie
filed a complaint for murder against accused-appellant Nuez and the other members of his
group.[11] He also asked for the exhumation and autopsy of the remains of his son.[12] As the
incident took place in Cebu, his complaint was referred to the NBI office in Cebu City.
Modesto Cajita, head of NBI, Region VII (Cebu), took over the investigation of the
case. He testified that he met with Eddie Luntayao and supervised the exhumation and
autopsy of the body of Randy Luntayao.[13] Cajita testified that he also met with accused-
appellant Carmen and after admitting that she and the other accused-appellants
conducted a pray-over healing session on the victim on January 27, 1997, accused-
appellant Carmen refused to give any further statement. Cajita noticed a wooden bench
in the kitchen of Carmens house, which, with Carmens permission, he took with him to the
172
NBI office for examination. Cajita admitted he did not know the results of the
examination.[14]
Dr. Ronaldo B. Mendez, the NBI medico-legal officer who conducted the autopsy on
Randy Luntayao, testified that he, the victims father, and some NBI agents, exhumed the
victims body on February 20, 1997 at Tangke Catholic Cemetery in the Tangke, Talisay,
Cebu. He conducted the autopsy on the same day and later submitted the following
report (Exhs. E and F):[15]
FINDINGS
Body in advanced stage of decomposition wearing a white shirt and shorts wrapped in
printed blanket (white and orange) placed in white wooden coffin and buried
underground about 4 feet deep.
Contusion, 3.0 x 4.0 cms. chest, anterior, left side.
Fracture, 3rd rib, left, mid-clavicular line.
Fracture, linear, occipital bone right side extending to the bases of middle cranial fossae
right to left down to the occipital bone, left side.
Fracture, diastatic, lamboidal suture, bilateral.
Internal organs in advanced stage of decomposition.
Cranial vault almost empty.
CAUSE OF DEATH: [The victim] could have died due to the internal effects of a
traumatic head injury and/or traumatic chest injury.
Dr. Mendez testified that the contusion on the victims chest was caused by contact
with a hard blunt instrument. He added that the fracture on the rib was complete while that
found on the base of the skull followed a serrated or uneven pattern. He said that the latter
injury could have been caused by the forcible contact of that part of the body with a blunt
object such as a wooden bench.[16]
On cross-examination, Dr. Mendez admitted that he did not find any stab wound on
the victims body but explained that this could be due to the fact that at the time the body
was exhumed and examined, it was already in an advanced state of decomposition
rendering such wound, if present, unrecognizable.[17]
Accused-appellants did not testify. Instead, the defense presented: (a) Ritsel Blase, an
alleged eyewitness to the incident; (b) Maria Lilina Jimenez, Visitacion Seniega, and
Josefina Abing, alleged former patients of accused-appellant Carmen; (c) Dr. Milagros
Carloto, the municipal health officer of Talisay, Cebu and; (d) Atty. Salvador Solima of the
Cebu City Prosecutors Office.
Ritsel Blase, 21, testified that since 1987 she had been with the group of accused-
appellant Carmen, whom she calls Mother Perpetuala. She recounted that at around 2
oclock in the afternoon of January 27, 1997, while she was in the house of accused-
appellant Carmen, she saw Eddie Luntayao talking with the latter regarding the treatment
of his son. The boy was later led to the kitchen and given a bath prior to treatment. After
water was poured on the boy, he became unruly prompting accused-appellant Carmen
to decide not to continue with the treatment, but the boys parents allegedly prevailed
upon her to continue. As the boy continued to resist, accused-appellant Carmen told
accused-appellants Delia Sibonga and Celedonia Fabie to help her (Carmen) lay the boy
on a bench. As the child resisted all the more, Eddie Luntayao allegedly told the group to
tie the boy to the bench. Accused-appellant Delia Sibonga got hold of a nylon rope which
was used to tie the child to the bench. Then Carmen, Delia Sibonga, and Fabie prayed
over the child, but as the latter started hitting his head against the bench, Carmen asked
Nuez to place his hands under the boys head to cushion the impact of the blow everytime
the child brought down his head. To stop the boy from struggling, accused-appellant Fabie
held the boys legs, while accused-appellant Nuez held his shoulders. After praying over the
boy, the latter was released and carried inside the house. Accused-appellant Alexander
Sibonga, who had arrived, helped carry the boy inside. After this, Blase said she no longer
knew what happened inside the house as she stayed outside to finish the laundry.[18]
Blase testified that the parents of Randy Luntayao witnessed the pray-over of their son
from beginning to end. She denied that accused-appellants Fabie and Delia Sibonga
struck the victim on his chest with their fists. According to her, neither did accused-
appellant Carmen stab the boy. She claimed that Randy was still alive when he was taken
inside the house.[19]
The defense presented Maria Lilia Jimenez, 20, Visitacion Seniega, 39, and Josefina
Abing, 39, who testified that accused-appellant Carmen had cured them of their illnesses
by merely praying over them and without applying any form of physical violence on
them.[20]
Milagros Carloto, Municipal Health Officer of Talisay, Cebu, was also presented by the
defense to testify on the death certificate she issued in which she indicated that Randy
Luntayao died of pneumonia. According to her, Eddie Luntayao came to her office on
January 28, 1997 to ask for the issuance of a death certificate for his son Randy Luntayao
who had allegedly suffered from cough and fever.[21]
On cross-examination, Dr. Carloto admitted that she never saw the body of the victim
as she merely relied on what she had been told by Eddie Luntayao. She said that it was a
midwife, Mrs. Revina Laviosa, who examined the victims body.[22]
The last witness for the defense, Assistant City Prosecutor Salvador Solima, was
presented to identify the resolution he had prepared (Exh. 8)[23] on the re-investigation of
the case in which he recommended the dismissal of the charge against accused-
appellants. His testimony was dispensed with, however, as the prosecution stipulated on the
matters Solima was going to testify with the qualification that Solimas recommendation was
disapproved by City Prosecutor Primo Miro.[24]
173
The prosecution recalled Eddie Luntayao to the stand to rebut the testimonies of Ritsel
Blase and Dr. Milagros Carloto. Eddie denied having witnessed what accused-appellants
did to his son. He reiterated his earlier claim that after accused-appellants had taken
Randy, he and his wife and two daughters were locked inside a room. He disputed Blases
statement that his son was still alive when he was brought into the prayer room. He said he
saw that his sons head slumped while being carried by accused-appellants.[25]
As for the testimony of Dr. Carloto, Eddie admitted having talked with her when he
and accused-appellant Nuez went to her office on January 28, 1997. However, he denied
having told her that his son was suffering from fever and cough as he told her that Randy
had a nervous breakdown. He took exception to Dr. Carlotos statement that he was alone
when he went to her office because it was Nuez who insisted that he (Eddie) accompany
him in order to secure the death certificate.[26]
On November 18, 1998, the trial court rendered a decision, the dispositive portion of
which states:
WHEREFORE, in view of the foregoing facts and circumstances, [the] accused are all found
guilty beyond reasonable doubt of the crime of Murder and are hereby [sentenced] to
suffer the penalty of RECLUSION PERPETUA, with the accessory penalties of the law; to
indemnify jointly and severally the heirs of the deceased Randy Luntayao in the sum
of P50,000.00; and to pay the costs. The accused, are, however, credited in full during the
whole period of their detention provided they will signify in writing that they will abide by all
the rules and regulations of the penitentiary.[27]
In finding accused-appellants guilty of murder, the trial court stated:
Killing a person with treachery is murder even if there is no intent to kill. When death occurs,
it is presumed to be the natural consequence of physical injuries inflicted. Since the
defendant did commit the crime with treachery, he is guilty of murder, because of the
voluntary presence of the qualifying circumstance of treachery (P v. Cagoco, 58 Phil.
530). All the accused in the case at bar had contributed different acts in mercilessly
inflicting injuries to the victim. For having immersed the head of the victim into the barrel of
water, all the herein accused should be held responsible for all the consequences even if
the result be different from that which was intended (Art. 4, par. 1, RPC). It is pointed out
that in P. v. Cagoco, 58 Phil. 524, even if there was no intent to kill[,] in inflicting physical
injuries with treachery, the accused in that case was convicted of murder. In murder
qualified by treachery, it is required only that there is treachery in the attack, and this is true
even if the offender has no intent to kill the person assaulted. Under the guise of a ritual or
treatment, the accused should not have intentionally immersed upside down the head of
Randy Luntayao into a barrel of water; banged his head against the bench; pounded his
chest with fists, or plunged a kitchen knife to his side so that blood would come out for
these acts would surely cause death to the victim. . . .
One who commits an intentional felony is responsible for all the consequences which may
naturally and logically result therefrom, whether foreseen or intended or not. Ordinarily,
when a person commits a felony with malice, he intends the consequences of his felonious
act. In view of paragraph 1 of Art. 4, a person committing a felony is criminally liable
although the consequences of his felonious acts are not intended by him. . . .
....
Intent is presumed from the commission of an unlawful act. The presumption of criminal
intent may arise from the proof of the criminal act and it is for the accused to rebut this
presumption. In the case at bar, there is enough evidence that the accused confederated
with one another in inflicting physical harm to the victim (an illegal act). These acts were
intentional, and the wrong done resulted in the death of their victim. Hence, they are liable
for all the direct and natural consequences of their unlawful act, even if the ultimate result
had not been intended.[28]
Hence, this appeal. Accused-appellants allege that the trial court erred in convicting
them of murder.[29]
First. It would appear that accused-appellants are members of a cult and that the
bizarre ritual performed over the victim was consented to by the victims parents. With the
permission of the victims parents, accused-appellant Carmen, together with the other
accused-appellants, proceeded to subject the boy to a treatment calculated to drive the
bad spirit from the boys body. Unfortunately, the strange procedure resulted in the death of
the boy. Thus, accused-appellants had no criminal intent to kill the boy. Their liability arises
from their reckless imprudence because they ought that to know their actions would not
bring about the cure. They are, therefore, guilty of reckless imprudence resulting in
homicide and not of murder.
Art. 365 of the Revised Penal Code, as amended, states that reckless imprudence
consists in voluntarily, but without malice, doing or failing to do an act from which material
damage results by reason of inexcusable lack of precaution on the part of the person
performing such act. Compared to intentional felonies, such as homicide or murder, what
takes the place of the element of malice or intention to commit a wrong or evil is the failure
of the offender to take precautions due to lack of skill taking into account his employment,
or occupation, degree of intelligence, physical condition, and other circumstances
regarding persons, time, and place.
The elements of reckless imprudence are apparent in the acts done by accused-
appellants which, because of their lack of medical skill in treating the victim of his alleged
ailment, resulted in the latters death. As already stated, accused-appellants, none of whom
is a medical practitioner, belong to a religious group, known as the Missionaries of Our Lady
of Fatima, which is engaged in faith healing.
174
In United States v. Divino,[30] the accused, who was not a licensed physician, in an
attempt to cure the victim of ulcers in her feet, wrapped a piece of clothing which had
been soaked in petroleum around the victims feet and then lighted the clothing, thereby
causing injuries to the victim. The Court held the accused liable for reckless imprudence
resulting in physical injuries. It was noted that the accused had no intention to cause an evil
but rather to remedy the victims ailment.
In another case, People v. Vda. de Golez,[31] the Court ruled that the proper charge
to file against a non-medical practitioner, who had treated the victim despite the fact that
she did not possess the necessary technical knowledge or skill to do so and caused the
latters death, was homicide through reckless imprudence.
The trial courts reliance on the rule that criminal intent is presumed from the
commission of an unlawful act is untenable because such presumption only holds in the
absence of proof to the contrary.[32]The facts of the case indubitably show the absence of
intent to kill on the part of the accused-appellants. Indeed, the trial courts findings can be
sustained only if the circumstances of the case are ignored and the Court limits itself to the
time when accused-appellants undertook their unauthorized treatment of the
victim. Obviously, such an evaluation of the case cannot be allowed.
Consequently, treachery cannot be appreciated for in the absence of intent to kill,
there is no treachery or the deliberate employment of means, methods, and manner of
execution to ensure the safety of the accused from the defensive or retaliatory attacks
coming from the victim.[33] Viewed in this light, the acts which the trial court saw as
manifestations of treachery in fact relate to efforts by accused-appellants to restrain Randy
Luntayao so that they can effect the cure on him.
On the other hand, there is no merit in accused-appellants contention that the
testimony of prosecution eyewitness Honey Fe Abella is not credible. The Court is more than
convinced of Honey Fes credibility. Her testimony is clear, straightforward, and is far from
having been coached or contrived. She was only a few meters away from the kitchen
where accused-appellants conducted their pray-over healing session not to mention that
she had a good vantage point as the kitchen had no roof nor walls but only a pantry. Her
testimony was corroborated by the autopsy findings of Dr. Mendez who, consistent with
Honey Fes testimony, noted fractures on the third left rib and on the base of the victims
skull. With regard to Dr. Mendezs failure to find any stab wound in the victims body, he
himself had explained that such could be due to the fact that at the time the autopsy was
conducted, the cadaver was already in an advanced state of decomposition. Randy
Luntayaos cadaver was exhumed 24 days after it had been buried. Considering the length
of time which had elapsed and the fact that the cadaver had not been embalmed, it was
very likely that the soft tissues had so decomposed that, as Dr. Mendez said, it was no
longer possible to determine whether there was a stab wound. As for the other points raised
by accused-appellants to detract the credibility of Honey Fes testimony, the same appear
to be only minor and trivial at best.
Accused-appellants contend that the failure of the prosecution to present the
testimony of Frances Claire Rivera as well as the knife used in stabbing Randy Luntayao puts
in doubt the prosecutions evidence. We do not think so. The presentation of the knife in
evidence is not indispensable.[34]
Finally, accused-appellants make much of the fact that although the case was tried
under Judge Renato C. Dacudao, the decision was rendered by Judge Galicano
Arriesgado who took over the case after the prosecution and the defense had rested their
cases.[35] However, the fact that the judge who wrote the decision did not hear the
testimonies of the witnesses does not make him less competent to render a decision, since
his ruling is based on the records of the case and the transcript of stenographic notes of the
testimonies of the witnesses.[36]
Second. The question now is whether accused-appellants can be held liable for
reckless imprudence resulting in homicide, considering that the information charges them
with murder. We hold that they can.
Rule 120 of the Revised Rules of Criminal Procedure provides in pertinent parts:
SEC. 4. Judgment in case of variance between allegation and proof. When there is
variance between the offense charged in the complaint or information and that proved,
and the offense as charged is included in or necessarily includes the offense proved, the
accused shall be convicted of the offense proved which is included in the offense
charged, or of the offense charged which is included in the offense proved.
SEC. 5. When an offense includes or is included in another. An offense charged necessarily
includes the offense proved when some of the essential elements or ingredients of the
former, as alleged in the complaint or information, constitute the latter. And an offense
charged is necessarily included in the offense proved, when the essential ingredients of the
former constitute or form part of those constituting the latter.
In Samson v. Court of Appeals,[37] the accused were charged with, and convicted of,
estafa through falsification of public document. The Court of Appeals modified the
judgment and held one of the accused liable for estafa through falsification by
negligence. On appeal, it was contended that the appeals court erred in holding the
accused liable for estafa through negligence because the information charged him with
having wilfully committed estafa. In overruling this contention, the Court held:
While a criminal negligent act is not a simple modality of a willful crime, as we held in
Quizon v. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1955, but a distinct crime
in itself, designated as a quasi offense in our Penal Code, it may however be said that a
conviction for the former can be had under an information exclusively charging the
commission of a willful offense, upon the theory that the greater includes the lesser
175
offense. This is the situation that obtains in the present case. Appellant was charged with
willful falsification but from the evidence submitted by the parties, the Court of Appeals
found that in effecting the falsification which made possible the cashing of the checks in
question, appellant did not act with criminal intent but merely failed to take proper and
adequate means to assure himself of the identity of the real claimants as an ordinary
prudent man would do. In other words, the information alleges acts which charge willful
falsification but which turned out to be not willful but negligent. This is a case covered by
the rule when there is a variance between the allegation and proof. . . .
The fact that the information does not allege that the falsification was committed with
imprudence is of no moment for here this deficiency appears supplied by the evidence
submitted by appellant himself and the result has proven beneficial to him. Certainly,
having alleged that the falsification has been willful, it would be incongruous to allege at
the same time that it was committed with imprudence for a charge of criminal intent is
incompatible with the concept of negligence.
In People v. Fernando,[38] the accused was charged with, and convicted of, murder
by the trial court. On appeal, this Court modified the judgment and held the accused liable
for reckless imprudence resulting in homicide after finding that he did not act with criminal
intent.
Third. Coming now to the imposable penalty, under Art. 365, reckless imprudence
resulting in homicide is punishable by arresto mayor in its maximum period to prision
correccional in its medium period. In this case, taking into account the pertinent provisions
of Indeterminate Sentence Law, the accused-appellants should suffer the penalty of four
(4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision
correccional, as maximum.
As to their civil liability, accused-appellants should pay the heirs of Randy Luntayao an
indemnity in the amount of P50,000.00 and moral damages also in the amount
of P50,000.00.[39] In addition, they should pay exemplary damages in the amount
of P30,000.00 in view of accused-appellants gross negligence in attempting to cure the
victim without a license to practice medicine and to give an example or correction for the
public good.[40]
WHEREFORE, the decision of the Regional Trial Court, Branch 14, Cebu City, is
AFFIRMED with the MODIFICATION that accused-appellants are hereby declared guilty of
reckless imprudence resulting in homicide and are each sentenced to suffer an
indeterminate prison term of four (4) months of arresto mayor, as minimum, to four (4) years
and two (2) months of prision correccional, as maximum. In addition, accused-appellants
are ORDERED jointly and severally to pay the heirs of Randy Luntayao indemnity in the
amount of P50,000.00, moral damages in the amount of P50,000.00, and exemplary
damages in the amount of P30,000.00.
 SO ORDERED.
Bellosillo, (Chairman), Buena, and De Leon, Jr., JJ., concur
Quisumbing, J., on leave.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 96132 June 26, 1992
ORIEL MAGNO, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
PARAS, J.:
This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, from the decision*
of the respondent Court of Appeals which affirmed in toto the decision of the Regional Trial
Court of Quezon City, Branch 104 finding the accused petitioner, guilty of violations of Batas
Pambansa Blg. 22, in Criminal Cases Q-35693 to 35696 before they were elevated on
appeal to the respondent appellate Court under CA-G.R. CR No. 04889.
The antecedent facts and circumstances of the four (4) counts of the offense charged,
have been clearly illustrated, in the Comment of the Office of the Solicitor General as
official counsel for the public respondent, thus:
Petitioner was in the process of putting up a car repair shop sometime in April 1983, but a
did not have complete equipment that could make his venture workable. He also had
another problem, and that while he was going into this entrepreneurship, he lacked funds
with which to purchase the necessary equipment to make such business operational. Thus,
petitioner, representing Ultra Sources International Corporation, approached Corazon
Teng, (private complainant) Vice President of Mancor Industries (hereinafter referred to as
Mancor) for his needed car repair service equipment of which Mancor was a distributor,
(Rollo, pp. 40-41)
Having been approached by petitioner on his predicament, who fully bared that he had
no sufficient funds to buy the equipment needed, the former (Corazon Teng) referred
Magno to LS Finance and Management Corporation (LB Finance for brevity) advising its
Vice-President, Joey Gomez, that Mancor was willing and able to supply the pieces of
equipment needed if LS Finance could accommodate petitioner and provide him credit
facilities. (Ibid., P. 41)
The arrangement went through on condition that petitioner has to put up a warranty
deposit equivalent to thirty per centum (30%) of the total value of the pieces of equipment
176
to be purchased, amounting to P29,790.00. Since petitioner could not come up with such
amount, he requested Joey Gomez on a personal level to look for a third party who could
lend him the equivalent amount of the warranty deposit, however, unknown to petitioner, it
was Corazon Teng who advanced the deposit in question, on condition that the same
would be paid as a short term loan at 3% interest (Ibid., P. 41)
The specific provision in the Leasing Agreement, reads:
1.1. WARRANTY DEPOSIT — Before or upon delivery of each item of
Equipment, the Lessee shall deposit with the Lessor such sum or sums
specified in Schedule A to serve as security for the faithful performance
of its obligations.
This deposit shall be refunded to the Lessee upon the satisfactory
completion of the entire period of Lease, subject to the conditions of
clause 1.12 of this Article. (Ibid., p. 17)
As part of the arrangement, petitioner and LS Finance entered into a leasing agreement
whereby LS Finance would lease the garage equipments and petitioner would pay the
corresponding rent with the option to buy the same. After the documentation was
completed, the equipment were delivered to petitioner who in turn issued a postdated
check and gave it to Joey Gomez who, unknown to the petitioner, delivered the same to
Corazon Teng. When the check matured, Petitioner requested through Joey Gomez not to
deposit the check as he (Magno) was no longer banking with Pacific Bank.
To replace the first check issued, petitioner issued another set of six (6) postdated checks.
Two (2) checks dated July 29, 1983 were deposited and cleared while the four (4) others,
which were the subject of the four counts of the aforestated charges subject of the
petition, were held momentarily by Corazon Teng, on the request of Magno as they were
not covered with sufficient funds. These checks were a) Piso Bank Check Nos. 006858,
dated August 15, 1983, 006859 dated August 28, 1983 and 006860 dated September 15,
1983, all in the amount of P5,038.43 and No. 006861 dated September 28, 1983, in the
amount of P10,076.87. (Ibid., pp. 42 & 43).
Subsequently, petitioner could not pay LS Finance the monthly rentals, thus it pulled out the
garage equipments. It was then on this occasion that petitioner became aware that
Corazon Teng was the one who advanced the warranty deposit. Petitioner with his wife
went to see Corazon Teng and promised to pay the latter but the payment never came
and when the four (4) checks were deposited they were returned for the reason "account
closed." (Ibid., p. 43)
After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-
petitioner was convicted for violations of BP Blg. 22 on the four (4) cases, as follows:
. . . finding the accused-appellant guilty beyond reasonable doubt of
the offense of violations of B.P. Blg. 22 and sentencing the accused to
 imprisonment for one year in each Criminal Case Nos. Q-35693, Q-35695
and Q-35696 and to pay to complainant the respective amounts
reflected in subject checks. (Ibid., pp. 25, 27)
Reviewing the above and the affirmation of the above-stated decision of the court a quo,
this Court is intrigued about the outcome of the checks subject of the cases which were
intended by the parties, the petitioner on the one hand and the private complainant on
the other, to cover the "warranty deposit" equivalent to the 30% requirement of the
financing company. Corazon Teng is one of the officers of Mancor, the supplier of the
equipment subject of the Leasing Agreement subject of the high financing scheme
undertaken by the petitioner as lessee of the repair service equipment, which was
arranged at the instance of Mrs. Teng from the very beginning of the transaction.
By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30% of
the "purchase/lease" value of the equipments subject of the transaction, it is obvious that
the "cash out" made by Mrs. Teng was not used by petitioner who was just paying rentals for
the equipment. It would have been different if petitioner opted to purchase the pieces of
equipment on or about the termination of the lease-purchase agreement in which case he
had to pay the additional amount of the warranty deposit which should have formed part
of the purchase price. As the transaction did not ripen into a purchase, but remained a
lease with rentals being paid for the loaned equipment, which were pulled out by the
Lessor (Mancor) when the petitioner failed to continue paying possibly due to economic
constraints or business failure, then it is lawful and just that the warranty deposit should not
be charged against the petitioner.
To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as
it was not his own account, it having remained with LS Finance, is to even make him pay an
unjust "debt", to say the least, since petitioner did not receive the amount in question. All
the while, said amount was in the safekeeping of the financing company, which is
managed, supervised and operated by the corporation officials and employees of LS
Finance. Petitioner did not even know that the checks he issued were turned over by Joey
Gomez to Mrs. Teng, whose operation was kept from his knowledge on her instruction. This
fact alone evoke suspicion that the transaction is irregular and immoral per se, hence, she
specifically requested Gomez not to divulge the source of the "warranty deposit".
It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she
who "accommodated" petitioner's request for Joey Gomez, to source out the needed
funds for the "warranty deposit". Thus it unfolds the kind of transaction that is shrouded with
mystery, gimmickry and doubtful legality. It is in simple language, a scheme whereby Mrs.
Teng as the supplier of the equipment in the name of her corporation, Mancor, would be
able to "sell or lease" its goods as in this case, and at the same time, privately financing
those who desperately need petty accommodations as this one. This modus operandi has
177
in so many instances victimized unsuspecting businessmen, who likewise need protection
from the law, by availing of the deceptively called "warranty deposit" not realizing that they
also fall prey to leasing equipment under the guise of a lease-purchase agreement when it
is a scheme designed to skim off business clients.
This maneuvering has serious implications especially with respect to the threat of the penal
sanction of the law in issue, as in this case. And, with a willing court system to apply the full
harshness of the special law in question, using the "mala prohibitia" doctrine, the noble
objective of the law is tainted with materialism and opportunism in the highest, degree.
This angle is bolstered by the fact that since the petitioner or lessee referred to above in the
lease agreement knew that the amount of P29,790.00 subject of the cases, were mere
accommodation-arrangements with somebody thru Joey Gomez, petitioner did not even
attempt to secure the refund of said amount from LS Finance, notwithstanding the
agreement provision to the contrary. To argue that after the termination of the lease
agreement, the warranty deposit should be refundable in full to Mrs. Teng by petitioner
when he did not cash out the "warranty deposit" for his official or personal use, is to stretch
the nicety of the alleged law (B.P. No, 22) violated.
For all intents and purposes, the law was devised to safeguard the interest of the banking
system and the legitimate public checking account user. It did not intend to shelter or favor
nor encourage users of the system to enrich themselves through manipulations and
circumvention of the noble purpose and objective of the law. Least should it be used also
as a means of jeopardizing honest-to-goodness transactions with some color of "get-rich"
scheme to the prejudice of well-meaning businessmen who are the pillars of society.
Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary
function of punishment is the protective (sic) of society against actual and potential
wrongdoers." It is not clear whether petitioner could be considered as having actually
committed the wrong sought to be punished in the offense charged, but on the other
hand, it can be safely said that the actuations of Mrs. Carolina Teng amount to that of
potential wrongdoers whose operations should also be clipped at some point in time in
order that the unwary public will not be failing prey to such a vicious transaction (Aquino,
The Revised Penal Code, 1987 Edition, Vol. I, P. 11)
Corollary to the above view, is the application of the theory that "criminal law is founded
upon that moral disapprobation . . . of actions which are immoral, i.e., which are
detrimental (or dangerous) to those conditions upon which depend the existence and
progress of human society. This disappropriation is inevitable to the extent that morality is
generally founded and built upon a certain concurrence in the moral opinions of all. . . .
That which we call punishment is only an external means of emphasizing moral
disapprobation the method of punishment is in reality the amount of punishment," (Ibid., P.
11, citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note also Justice Pablo's view in
People v. Piosca and Peremne, 86 Phil. 31).
Thus, it behooves upon a court of law that in applying the punishment imposed upon the
accused, the objective of retribution of a wronged society, should be directed against the
"actual and potential wrongdoers." In the instant case, there is no doubt that petitioner's
four (4) checks were used to collateralize an accommodation, and not to cover the
receipt of an actual "account or credit for value" as this was absent, and therefore
petitioner should not be punished for mere issuance of the checks in question. Following the
aforecited theory, in petitioner's stead the "potential wrongdoer", whose operation could
be a menace to society, should not be glorified by convicting the petitioner.
While in case of doubt, the case should have been resolved in favor of the accused,
however, by the open admission of the appellate court below, oven when the ultimate
beneficiary of the "warranty deposit" is of doubtful certainty, the accused was convicted,
as shown below:
Nor do We see any merit in appellant's claim that the obligation of the
accused to complainant had been extinguished by the termination of
the leasing agreement — by the terms of which the warranty deposit
advanced by complainant was refundable to the accused as lessee —
and that as the lessor L.S. Finance neither made any liquidation of said
amount nor returned the same to the accused, it may he assumed that
the amount was already returned to the complainant. For these
allegations, even if true, do not change the fact, admitted by appellant
and established by the evidence, that the four checks were originally
issued on account or for value. And as We have already observed, in
order that there may be a conviction under the from paragraph of
Section 2 of B.P. Blg 22 — with respect to the element of said offense that
the check should have been made and issued on account or for value
— it is sufficient, all the other elements of the offense being present, that
the check must have been drawn and issued in payment of an
obligation.
Moreover, even granting, arguendo, that the extinguishment, after the
issuance of the checks, of the obligation in consideration of which the
checks were issued, would have resulted in placing the case at bar
beyond the purview of the prohibition in Section 1 of BP Blg. 22, there is
no satisfactory proof that there was such an extinguishment in the
present case. Appellee aptly points out that appellant had not adduced
any direct evidence to prove that the amount advanced by the
178
complainant to cover the warranty deposit must already have been
returned to her. (Rollo, p. 30)
It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule
that the accused is presumed innocent until proven guilty beyond reasonable doubt. On
the contrary, the same court even expected the petitioner-appellant to adduce evidence
to show that he was not guilty of the crime charged. But how can be produce documents
showing that the warranty deposit has already been taken back by Mrs. Teng when she is
an officer of Mancor which has interest in the transaction, besides being personally
interested in the profit of her side-line. Thus, even if she may have gotten back the value of
the accommodation, she would still pursue collecting from the petitioner since she had in
her possession the checks that "bounced".
That the court a quo merely relied on the law, without looking into the real nature of the
warranty deposit is evident from the following pronouncement:
And the trail court concluded that there is no question that the accused
violated BP Blg. 22, which is a special statutory law, violations of which
are mala prohibita. The court relied on the rule that in cases ofmala
prohibita, the only inquiry is whether or not the law had been violated,
proof of criminal intent not being necessary for the conviction of the
accused, the acts being prohibited for reasons of public policy and the
defenses of good faith and absence of criminal intent being unavailing
in prosecutions for said offenses." (Ibid., p. 26)
The crux of the matter rests upon the reason for the drawing of the postdated checks by
the petitioner, i.e., whether they were drawn or issued "to apply on account or for value", as
required under Section 1 of B.P. Blg, 22. When viewed against the following definitions of the
catch-terms "warranty" and "deposit", for which the postdated checks were issued or
drawn, all the more, the alleged crime could not have been committed by petitioner:
a) Warranty — A promise that a proposition of fact is true. A promise that
certain facts are truly as they are represented to be and that they will
remain so: . . . (Black's Law Dictionary, Fifth Edition, (1979) p. 1423)
A cross-reference to the following term shows:
Fitness for Particular Purpose: —
Where the seller at the time of contracting has reason to know any
particular purpose for which the goods are required and that the buyer is
relying on the seller's skill or judgment to select or furnish suitable goods,
there is, unless excluded or modified, an implied warranty that the goods
shall be fit for such purpose, (Ibid., p. 573)
b) Deposit: — Money lodged with a person as an earnest or security for
the performance of some contract, to be forfeited if the depositor fails in
 his undertaking. It may be deemed to be part payment and to that
extent may constitute the purchaser the actual owner of the estate.
To commit to custody, or to lay down; to place; to put. To lodge for safe-
keeping or as a pledge to intrust to the care of another.
The act of placing money in the custody of a bank or banker, for safety
or convenience, to be withdrawn at the will of the depositor or under
rules and regulations agreed on. Also, the money so deposited, or the
credit which the depositor receives for it. Deposit, according to its
commonly accepted and generally understood among bankers and by
the public, includes not only deposits payable on demand and for which
certificates, whether interest-bearing or not, may be issued, payable on
demand, or on certain notice or at a fixed future time. (Ibid., pp. 394-
395)
Furthermore, the element of "knowing at the time of issue that he does not have sufficient
funds in or credit with the drawee bank for the payment of such check in full upon its
presentment, which check is subsequently dishonored by the drawee bank for insufficiency
of funds or credit or would have been dishonored for the same reason . . . is inversely
applied in this case. From the very beginning, petitioner never hid the fact that he did not
have the funds with which to put up the warranty deposit and as a matter of fact, he
openly intimated this to the vital conduit of the transaction, Joey Gomez, to whom
petitioner was introduced by Mrs. Teng. It would have been different if this predicament
was not communicated to all the parties he dealt with regarding the lease agreement the
financing of which was covered by L.S. Finance Management.
WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is hereby
ACQUITTED of the crime charged.
SO ORDERED.
Padilla and Regalado, JJ., concur.
Narvasa, C.J.,, concurs in the result.
Nocon, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 4963 September 15, 1909
THE UNITED STATES, plaintiff-appellee,
vs.
GO CHICO, defendant-appellant.
179
Gibbs and Gale for appellant.
Office of the Solicitor-General Harvey for appellee.
MORELAND, J.:
The defendant is charged with the violation of section 1 of Act No. 1696 of the Philippine
Commission, which reads as follows:
Any person who shall expose, or cause or permit to be exposed, to public view on
his own premises, or who shall expose, or cause to be exposed, to public view,
either on his own premises or elsewhere, any flag, banner, emblem, or device
used during the late insurrection in the Philippine Islands to designate or identify
those in armed rebellion against the United States, or any flag, banner, emblem,
or device used or adopted at any time by the public enemies of the United States
in the Philippine Island for the purpose of public disorder or of rebellion or
insurrection against the authority of the United States in the Philippine Islands, or
any flag, banner, emblem, or device of the Katipunan Society, or which is
commonly known as such, shall be punished by a fine of not less that five hundred
pesos for more than five thousand pesos, or by imprisonment for not less than
three months nor more than five years, or by both such fine and imprisonment, in
the discretion of the court.
The defendant was tried in the Court of First Instance of the city of Manila on the 8th day of
September, 1908. After hearing the evidence adduced the court adjudged the defendant
guilty of the crime charged and sentenced him under that judgment to pay a fine of P500,
Philippine currency, and to pay the costs of the action, and to suffer subsidiary
imprisonment during the time and in the form and in the place prescribed by law until said
fine should be paid. From that judgment and sentence the defendant appealed to this
court.
A careful examination of the record brought to this court discloses the following facts:
That on or about the 4th day of August, 1908, in the city of Manila, the appellant Go Chico
displayed in one of the windows and one of the show cases of his store, No. 89 Calle
Rosario, a number of medallions, in the form of a small button, upon the faces of which
were imprinted in miniature the picture of Emilio Aguinaldo, and the flag or banner or
device used during the late insurrection in the Philippine Islands to designate and identify
those in armed insurrection against the United States. On the day previous to the one
above set forth the appellant had purchased the stock of goods in said store, of which the
medallions formed a part, at a public sale made under authority of the sheriff of the city of
Manila. On the day in question, the 4th of August aforesaid, the appellant was arranging his
stock of goods for the purpose of displaying them to the public and in so doing placed in
his showcase and in one of the windows of his store the medallions described. The
appellant was ignorant of the existence of a law against the display of the medallions in
question and had consequently no corrupt intention. The facts above stated are admitted.
The appellant rests his right to acquittal upon two propositions:
First. That before a conviction under the law cited can be had, a criminal intent upon the
part of the accused must be proved beyond a reasonable doubt.
Second. That the prohibition of the law is directed against the use of the identical banners,
devices, or emblems actually used during the Philippine insurrection by those in armed
rebellion against the United States.
In the opinion of this court it is not necessary that the appellant should have acted with the
criminal intent. In many crimes, made such by statutory enactment, the intention of the
person who commits the crime is entirely immaterial. This is necessarily so. If it were not, the
statute as a deterrent influence would be substantially worthless. It would be impossible of
execution. In many cases the act complained of is itself that which produces the pernicious
effect which the statute seeks to avoid. In those cases the pernicious effect is produced
with precisely the same force and result whether the intention of the person performing the
act is good or bad. The case at bar is a perfect illustration of this. The display of a flag or
emblem used particularly within a recent period, by the enemies of the Government tends
to incite resistance to governmental functions and insurrection against governmental
authority just as effectively if made in the best of good faith as if made with the most
corrupt intent. The display itself, without the intervention of any other factor, is the evil. It is
quite different from that large class of crimes, made such by the common law or by statute,
in which the injurious effect upon the public depends upon the corrupt intention of the
person perpetrating the act. If A discharges a loaded gun and kills B, the interest which
society has in the act depends, not upon B's death, upon the intention with which A
consummated the act. If the gun were discharged intentionally, with the purpose of
accomplishing the death of B, then society has been injured and its security violated; but if
the gun was discharged accidentally on the part of A, then society, strictly speaking, has
no concern in the matter, even though the death of B results. The reason for this is that A
does not become a danger to society and institutions until he becomes a person with a
corrupt mind. The mere discharge of the gun and the death of B do not of themselves
make him so. With those two facts must go the corrupt intent to kill. In the case at bar,
however, the evil to society and the Governmental does not depend upon the state of
mind of the one who displays the banner, but upon the effect which that display has upon
the public mind. In the one case the public is affected by the intention of the actor; in the
other by the act itself.
It is stated in volume 12 of Cyc., page 148, that —
The legislature, however, may forbid the doing of an act and make its commission
a crime without regard to the intent of the doer, and if such an intention appears
180
the courts must give it effect although the intention may have been innocent.
Whether or not in a given case the statute is to be so construed is to be
determined by the court by considering the subject-matter of the prohibition as
well as the language of the statute, and thus ascertaining the intention of the
legislature.
In the case of The People vs. Kibler (106 N. Y., 321) the defendant was charged with the
sale of adulterated milk under a statute reading as follows:
No person or persons shall sell or exchange or expose for sale or exchange any
impure, unhealthy, adulterated, of unwholesome milk.
It was proved in that case that one Vandeburg purchased at the defendant's store 1 pint
of milk which was shown to contain a very small percentage of water more than that
permitted by the statute. There was no dispute about the facts, but the objection made by
the defendant was that he was not allowed, upon the trial, to show an absence of criminal
intent, or to go the jury upon the question whether it existed, but was condemned under a
charge from the court which made his intent totally immaterial and his guilt consist in
having sold the adulterated article whether he knew it or not and however carefully he
may have sought to keep on hand and sell the genuine article.
The opinion of the court in that case says:
As the law stands, knowledge or intention forms no elements of the offense. The
act alone, irrespective of its motive, constitutes the crime.
xxx xxx xxx
It is notorious that the adulteration of food products has grown to proportions so
enormous as to menace the health and safety of the people. Ingenuity keeps
pace with greed, and the careless and heedless consumers are exposed to
increasing perils. To redress such evils is a plain duty but a difficult task. Experience
has taught the lesson that repressive measures which depend for their efficiency
upon proof of the dealer's knowledge or of his intent to deceive and defraud are
of title use and rarely accomplish their purpose. Such an emergency may justify
legislation which throws upon the seller the entire responsibility of the purity and
soundness of what he sells and compels him to know and certain.
In the case of Gardner vs. The People (62 N. Y., 299) the question arose under a statute
which provided that an inspector of elections of the city of New York should not be
removed from office except "after notice in writing to the officer sought to be removed,
which notice shall set forth clearly and distinctly the reasons for his removal," and further
provided that any person who removed such an officer without such notice should be
guilty of a misdemeanor. An officer named Sheridan was removed by Gardener, the
defendant, without notice. Gardener was arrested and convicted of a misdemeanor under
the statute. He appealed from the judgment of conviction and the opinion from which the
following quotation is made was written upon the decision of that appeal. Chief Justice
Church, writing the opinion of the court, says in relation to criminal intent:
In short, the defense was an honest misconstruction of the law under legal device.
The court ruled out the evidence offered, and held that intentionally doing the
act prohibited constituted the offense. It is quite clear that the facts offered to be
shown, if true, would relieve the defendant from the imputation of a corrupt
intent, and, indeed, from any intent to violate the statute. The defendants made a
mistake of law. Such mistakes do not excuse the commission of prohibited acts.
"The rule on the subject appears to be, that in acts mala in se, intent governs but
in those mala prohibit a, the only inquiry is, has the law been violated?
xxx xxx xxx
The authorities seem to establish that sustain and indictment for doing a prohibited
act, it is sufficient to prove that the act was knowingly and intentionally done.
xxx xxx xxx
In this case, if the defendants could have shown that they believed that in fact
notice had been given to the inspector, although it had not, they would not have
been guilty of the offense, because the intention to do the act would have been
wanting. Their plea is: True, we intended to remove the inspector without notice,
but we thought the law permitted it. This was a mistake of law, and is not strictly a
defense.
xxx xxx xxx
If the offense is merely technical, the punishment can be made correspondingly
nominal; while a rule requiring proof of a criminal intent to violate the statute,
independent of an intent to do the act which the statute declares shall constitute
the offense, would, in many cases, prevent the restraining influence which the
statute was designed to secure.
In the case of Fiedler vs. Darrin (50 N.Y., 437) the court says:
But when an act is illegal, the intent of the offender is immaterial.
In the case of The Commonwealth vs. Murphy (165 Mass., 66) the court says:
In general, it may be said that there must be malus animus, or a criminal intent. But
there is a large class of cases in which, on grounds of public policy, certain acts
are made punishable without proof that the defendant understands the facts that
give character to his act.
In such cases it is deemed best to require everybody at his peril to ascertain
whether his act comes within the legislative prohibition.
xxx xxx xxx
Considering the nature of the offense, the purpose to be accomplished, the
practical methods available for the enforcement of the law, and such other
181
matters as throw light upon the meaning of the language, the question in
interpreting a criminal statute is whether the intention of the legislature was to
make knowledge of the facts an essential element of the offense, or to put upon
everyone the burden of finding out whether his contemplated act is prohibited,
and of refraining from it if it is.
In the case of Halsted vs. The State (41 N. J. L., 552; 32 Am. Rep., 247), the question of a
criminal intent arose under a statute, under which the defendant was convicted of a crime,
providing that if any township committee or other body shall disburse or vote for the
disbursement of public moneys in excess of appropriations made for the purpose, the
persons constituting such board shall be guilty of a crime. The defendant was one who
violated this law by voting to incur obligations in excess of the appropriation. He was
convicted and appealed and the opinion from which the quotation is taken was written
upon a decision of that appeal. That court says:
When the State had closed, the defense offered to show that the defendant, in
aiding in the passage and effectuation of the resolution which I have pronounced
to be illegal, did so under the advice of counsel and in good faith, and from pure
and honest motives, and that he therein exercise due care and caution.
xxx xxx xxx
As there is an undoubted competency in the lawmaker to declare an act
criminal, irrespective of the knowledge or motive of the doer of such act, there
can be of necessity, no judicial authority having the power to require, in the
enforcement of the law, such knowledge or motive to be shown. In such instances
the entire function of the court is to find out the intention of the legislature, and to
enforce the law in absolute conformity to such intention. And in looking over the
decided cases on the subject it will be found that in the considered adjudications
this inquiry has been the judicial guide.
In the case of Rex vs. Ogden (6 C. & P., 631; 25 E. C. L., 611), the prisoner was indicted for
unlawfully transposing from one piece of wrought plate to another the lion-poisson contrary
to the statutes. It was conceded that the act was done without any fraudulent intention.
The court said:
There are no words in the act of Parliament referring to any fraudulent intention.
The words of it are, 'Shall transpose or remove, or cause of procure to be
transposed or removed, from one piece of wrought plate to another.
In the case of The State vs. McBrayer (98 N. C., 623) the court stated:
It is a mistaken notion that positive, willful intent to violate the criminal law is an
essential ingredient in every criminal offense, and that where is an absence of
such intent there is no offense; this is especially true as to statutory offenses. When
the statute plainly forbids an act to be done, and it is done by some person, the
 law implies conclusively the guilty intent, although the offender was honestly
mistaken as to the meaning of the law he violates. When the language is plain
and positive, and the offense is not made to depend upon the positive, willful
intent and purpose, nothing is left to interpretation.
In the case of the Commonwealth vs. Weiss (139 Pa. St., 247), the question arose on an
appeal by the defendant from a judgment requiring him to pay a penalty for a violation of
the statute of the State which provided that any person would be liable to pay a penalty
"who shall manufacture, sell, or offer or expose for sale, or have in his possession with intent
to sell," oleomargarine, etc. At the trial the defendant requested the court to instruct the
injury that if they believed, from the evidence, that the defendant did not knowingly furnish
or authorize to be furnished, or knew of there furnished, to any of his customers any
oleomargarine, but, as far as he knew, furnished genuine butter, then the verdict must be
for the defendant. The court refused to make the charge as requested and that is the only
point upon which the defendant appealed.
The court says:
The prohibition is absolute and general; it could not be expressed in terms more
explicit and comprehensive. The statutory definition of the offense embraces no
word implying that the forbidden act shall be done knowingly or willfully, and if it
did, the designed purpose of the act would be practically defeated. The intention
of the legislature is plain, that persons engaged in the traffic so engage in it at
their peril and that they can not set up their ignorance of the nature and qualities
of the commodities they sell, as a defense.
The following authorities are to the same effect: State vs. Gould (40 Ia., 374);
Commonwealth vs. Farren (9 Allen, 489); Commonwealth vs. Nichols (10 Allen, 199);
Commonwealth vs. Boyton (2 Allen, 160); Wharton's Criminal Law, section 2442;
Commonwealth vs. Sellers (130 Pa., 32); 3 Greenleaf on Evidence, section 21; Farrell vs. The
State (32 Ohio State, 456); Beekman vs. Anthony (56 Miss., 446); The People vs. Roby (52
Mich., 577).
It is clear from the authorities cited that in the act under consideration the legislature did
not intend that a criminal intent should be a necessary element of the crime. The statutory
definition of the offense embraces no word implying that the prohibited act shall be done
knowingly or willfully. The wording is plain. The Act means what it says. Nothing is left to the
interpretation.
Care must be exercised in distiguishing the differences between the intent to commit the
crime and the intent to perpetrate the act. The accused did not consciously intend to
commit a crime; but he did intend to commit an act, and the act is, by the very nature of
things, the crime itself — intent and all. The wording of the law is such that the intent and
182
the act are inseparable. The act is the crime. The accused intended to put the device in his
window. Nothing more is required to commit the crime.
We do not believe that the second proposition of the accused, namely, that the law is
applicable only to the identical banners, etc., actually used in the late insurrection, and not
to duplicates of those banners, can be sustained.
It is impossible that the Commission should have intended to prohibit the display of the flag
or flags actually used in the insurrection, and, at the same time, permit exact duplicates
thereof (saving, perhaps, size) to be displayed without hindrance. In the case before us, to
say that the display of a certain banner is a crime and that the display of its exact
duplicate is not is to say nonsense. The rules governing the interpretation of statutes are
rules of construction not destruction. To give the interpretation contended for by the
appellant would, as to this particular provision, nullify the statute altogether.
The words "used during the late insurrection in the Philippine Islands to designate or identity
those in armed rebellion against the United States" mean not only the identical flags
actually used in the insurrection, but any flag which is of that type. This description refers not
to a particular flag, but to a type of flag. That phrase was used because there was and is
no other way of describing that type of flag. While different words might be employed,
according to the taste of the draftsman, the method of description would have to be the
same. There is no concrete word known by which that flag could be aptly or properly
described. There was no opportunity, within the scope of a legislative enactment, to
describe the physical details. It had no characteristics whatever, apart from its use in the
insurrection, by which it could, in such enactment, be identified. The great and the only
characteristic which it had upon the which the Commission could seize as a means of
description and identification was the fact that it was used in the insurrection. There was,
therefore, absolutely no way in which the Commission could, in the Act, describe the flag
except by reciting where and how it was used. It must not be forgotten that the
Commission, by the words and phrases used, was not attempting to describe a particular
flag, but a type of flag. They were not describing a flag used upon a particular field or in a
certain battle, but a type of flag used by an army — a flag under which many persons
rallied and which stirred their sentiments and feelings wherever seen or in whatever form it
appeared. It is a mere incident of description that the flag was used upon a particular field
or in a particular battle. They were describing the flag not a flag. It has a quality and
significance and an entity apart from any place where or form in which it was used.
Language is rarely so free from ambiguity as to be incapable of being used in
more than one sense, and the literal interpretation of a statute may lead to an
absurdity or evidently fail to give the real intent of the legislature. When this is the
case, resort is had to the principle that the spirit of a law controls the letter, so that
a thing which is within the intention of a statute is as much within the statute as if it
 were within the letter, and a thing which is within the letter of the statute is not
within the statute unless it be within the intention of the makers, and the statute
should be construed as to advance the remedy and suppress the mischief
contemplated by the framers. (U. S. vs. Kirby, 7 Wall., 487; State Bolden, 107 La.,
116, 118; U.S. vs.Buchanan, 9 Fed. Rep., 689; Green vs. Kemp, 13 Mass., 515; Lake
Shore R. R. Co. vs. Roach, 80 N. Y., 339; Delafield vs. Brady, 108 N. Y., 524
Doyle vs. Doyle, 50 Ohio State, 330.)
The intention of the legislature and the object aimed at, being the fundamental
inquiry in judicial construction, are to control the literal interpretation of particular
language in a statute, and language capable of more than one meaning is to be
taken in that sense which will harmonize with such intention and object, and
effect the purpose of the enactment. (26 Am. & Eng. Ency. of Law., 602.)
Literally hundreds of cases might be cited to sustain this proposition.
The preamble is no part of the statute, but as setting out the object and intention
of the legislature, it is considered in the construction of an act. Therefore,
whenever there is ambiguity, or wherever the words of the act have more than
one meaning, and there is no doubt as to the subject-matter to which they are to
be applied, the preamble may be used." (U. S. vs. Union Pacific R. R. Co., 91 U. S.,
72; Platt vs. Union Pacific R. R. Co., 99 U. S., 48; Myer vs. Western Car Co., 102 U. S.,
1; Holy Trinity Church vs. U. S., 143 U. S., 457; Coosaw Mining Co. vs. South Carolina,
144 U. S., 550; Cohn vs. Barrett, 5 Cal., 195; Barnes vs. Jones, 51 Cal., 303;
Field vs. Gooding, 106 Mass., 310; People vs. Molineaux, 40 N. Y., 113; Smith vs. The
People, 47 N. Y., 330; The People vs. Davenport, 91 N.Y., 547; The
People vs. O'Brien, 111 N.Y., 1)
The statute, then, being penal, must be construed with such strictness as to
carefully safeguard the rights of the defendant and at the same time preserve the
obvious intention of the legislature. If the language be plain, it will be construed as
it reads, and the words of the statute given their full meaning; if ambiguous, the
court will lean more strongly in favor of the defendant than it would if the statute
were remedial. In both cases it will endeavor to effect substantial justice."
(Bolles vs. Outing Co., 175 U. S., 262, 265; U. S. vs. Wiltberger, 5 Wheat., 76, 95; U.
S. vs. Reese, 92 U. S., 214)
It is said that notwithstanding this rule (the penal statutes must be construde
strictly) the intention of the lawmakers must govern in the construction of penal as
well as other statutes. This is true, but this is not a new, independent rule which
subverts the old. It is a modification of the known maxim and amounts to this --
that though penal statutes are to be construed strictly, they are not be construed
183
so strictly as to defeat the obvious purpose of the legislature. (U. S. vs. Wiltberger, 5
Wheat., 76; Taylor vs. Goodwin, L. R. 4, Q. B. Civ., 228.)
In the latter case it was held that under a statute which imposed a penalty for "furiously
driving any sort of carriage" a person could be convicted for immoderately driving a
bicycle.
It is presumed that the legislature intends to impart to its enactments such a
meaning as will render then operative and effective, and to prevent persons from
eluding or defeating them. Accordingly, in case of any doubt or obscurity, the
construction will be such as to carry out these objects. (Black, Interpretation of
Laws, p. 106.)
In The People vs. Supervisors (43 N. Y., 130) the court said:
The occasion of the enactment of a law always be referred to in interpreting and
giving effect to it. The court should place itself in the situation of the legislature
and ascertain the necessity and probable object of the statute, and then give
such construction to the language used as to carry the intention of the legislature
into effect so far as it can be ascertained from the terms of the statute itself. (U.
S. vs. Union Pacific R. R. Co., 91 U. S., 72, 79.)
We do not believe that in construing the statute in question there is necessity requiring that
clauses should be taken from the position given them and placed in other portions of the
statute in order to give the whole Act a reasonable meaning. Leaving all of the clauses
located as they now are in the statute, a reasonable interpretation, based upon the plain
and ordinary meaning of the words used, requires that the Act should be held applicable
to the case at bar.
The judgment of the court below and the sentence imposed thereunder are hereby
affirmed. So ordered.
Arellano, C. J., Torres, and Carson, JJ., concur.
SECOND DIVISION
G.R. No. 141066 February 17, 2005
EVANGELINE LADONGA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Petitioner Evangeline Ladonga seeks a review of the Decision,1 dated May 17, 1999, of the
Court of Appeals in CA-G.R. CR No. 20443, affirming the Decision dated August 24, 1996, of
the Regional Trial Court (RTC), Branch 3 of Bohol, in Criminal Case Nos. 7068, 7069 and 7070
convicting her of violation of B.P. Blg. 22, otherwise known as The Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were filed with the RTC,
docketed as Criminal Case Nos. 7068 - 7070. The Information in Criminal Case No. 7068
alleges as follows:
That, sometime in May or June 1990, in the City of Tagbilaran, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating,
and mutually helping with one another, knowing fully well that they did not have sufficient
funds deposited with the United Coconut Planters Bank (UCPB), Tagbilaran Branch, did then
and there willfully, unlawfully, and feloniously, draw and issue UCPB Check No. 284743
postdated July 7, 1990 in the amount of NINE THOUSAND SEVENTY-FIVE PESOS AND FIFTY-FIVE
CENTAVOS (₱9,075.55), payable to Alfredo Oculam, and thereafter, without informing the
latter that they did not have sufficient funds deposited with the bank to cover up the
amount of the check, did then and there willfully, unlawfully and feloniously pass on,
indorse, give and deliver the said check to Alfredo Oculam by way of rediscounting of the
aforementioned checks; however, upon presentation of the check to the drawee bank for
encashment, the same was dishonored for the reason that the account of the accused
with the United Coconut Planters Bank, Tagbilaran Branch, had already been closed, to the
damage and prejudice of the said Alfredo Oculam in the aforestated amount.
Acts committed contrary to the provisions of Batas Pambansa Bilang 22.2
The accusatory portions of the Informations in Criminal Case Nos. 7069 and 7070 are similarly
worded, except for the allegations concerning the number, date and amount of each
check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22, 1990 in the amount of
₱12,730.00;3
(b) Criminal Case No. 7070 – UCPB Check No. 106136 dated July 22, 1990 in the amount of
₱8,496.55.4
The cases were consolidated and jointly tried. When arraigned on June 26, 1991, the two
accused pleaded not guilty to the crimes charged.5
The prosecution presented as its lone witness complainant Alfredo Oculam. He testified
that: in 1989, spouses Adronico6 and Evangeline Ladonga became his regular customers in
his pawnshop business in Tagbilaran City, Bohol;7 sometime in May 1990, the Ladonga
spouses obtained a ₱9,075.55 loan from him, guaranteed by United Coconut Planters Bank
(UCPB) Check No. 284743, post dated to dated July 7, 1990 issued by Adronico;8 sometime
in the last week of April 1990 and during the first week of May 1990, the Ladonga spouses
obtained an additional loan of ₱12,730.00, guaranteed by UCPB Check No. 284744, post
dated to dated July 26, 1990 issued by Adronico;9 between May and June 1990, the
184
Ladonga spouses obtained a third loan in the amount of ₱8,496.55, guaranteed by UCPB
Check No. 106136, post dated to July 22, 1990 issued by Adronico;10 the three checks
bounced upon presentment for the reason "CLOSED ACCOUNT";11 when the Ladonga
spouses failed to redeem the check, despite repeated demands, he filed a criminal
complaint against them.12
While admitting that the checks issued by Adronico bounced because there was no
sufficient deposit or the account was closed, the Ladonga spouses claimed that the
checks were issued only to guarantee the obligation, with an agreement that Oculam
should not encash the checks when they mature;13 and, that petitioner is not a signatory of
the checks and had no participation in the issuance thereof.14
On August 24, 1996, the RTC rendered a joint decision finding the Ladonga spouses guilty
beyond reasonable doubt of violating B.P. Blg. 22, the dispositive portion of which reads:
Premises considered, this Court hereby renders judgment finding accused Adronico
Ladonga, alias Ronie, and Evangeline Ladonga guilty beyond reasonable doubt in the
aforesaid three (3) criminal cases, for which they stand charged before this Court, and
accordingly, sentences them to imprisonment and fine, as follows:
1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year for each of
them, and a fine in the amount of ₱9,075.55, equivalent to the amount of UCPB
Check No. 284743;
2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them to one (1)
year and a fine of ₱12, 730.00, equivalent to the amount of UCPB Check No.
284744; and,
3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for each of
them and a fine of ₱8,496.55 equivalent to the amount of UCPB Check No.
106136;
4. That both accused are further ordered to jointly and solidarily pay and
reimburse the complainant, Mr. Alfredo Oculam, the sum of ₱15,000.00
representing actual expenses incurred in prosecuting the instant cases; ₱10,000.00
as attorney’s fee; and the amount of ₱30,302.10 which is the total value of the
three (3) subject checks which bounced; but without subsidiary imprisonment in
case of insolvency.
With Costs against the accused.
SO ORDERED.15
Adronico applied for probation which was granted.16 On the other hand, petitioner brought
the case to the Court of Appeals, arguing that the RTC erred in finding her criminally liable
for conspiring with her husband as the principle of conspiracy is inapplicable to B.P. Blg.
22 which is a special law; moreover, she is not a signatory of the checks and had no
participation in the issuance thereof.17
On May 17, 1999, the Court of Appeals affirmed the conviction of petitioner.18 It held that
the provisions of the penal code were made applicable to special penal laws in the
decisions of this Court in People vs. Parel, 19 U.S. vs. Ponte, 20 and U.S. vs. Bruhez.21 It
that Article 10 of the Revised Penal Code itself provides that its provisions shall be
supplementary to special laws unless the latter provide the contrary. The Court of Appeals
stressed that since B.P. Blg. 22 does not prohibit the applicability in a suppletory character
of the provisions of the Revised Penal Code (RPC), the principle of conspiracy may be
applied to cases involving violations of B.P. Blg. 22. Lastly, it ruled that the fact that
petitioner did not make and issue or sign the checks did not exculpate her from criminal
liability as it is not indispensable that a co-conspirator takes a direct part in every act and
knows the part which everyone performed. The Court of Appeals underscored that in
conspiracy the act of one conspirator could be held to be the act of the other.
Petitioner sought reconsideration of the decision but the Court of Appeals denied the same
in a Resolution dated November 16, 1999.22
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:
1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE DRAWER OR ISSUER OF THE
THREE CHECKS THAT BOUNCED BUT HER CO-ACCUSED HUSBAND UNDER THE
LATTER’S ACCOUNT COULD BE HELD LIABLE FOR VIOLATIONS OF BATAS PAMBANSA
BILANG 22 AS CONSPIRATOR.
2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN VIOLATIONS OF BATAS PAMBANSA
BILANG 22 BY INVOKING THE LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE
WHICH STATES:
Art. 10. Offenses not subject of the provisions of this Code. – Offenses which are or in the
future may be punished under special laws are not subject to the provisions of this Code.
This Code shall be supplementary to such laws, unless the latter should specially provide the
contrary.
B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE COURT OF APPEALS IN AFFIRMING
IN TOTO THE CONVICTION OF PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY
CHARACTER OF THE REVISED PENAL CODE TO SPECIAL LAWS LIKE B.P. BLG. 22 IS
APPLICABLE.23
Petitioner staunchly insists that she cannot be held criminally liable for violation of B.P. Blg.
22 because she had no participation in the drawing and issuance of the three checks
subject of the three criminal cases, a fact proven by the checks themselves. She contends
that the Court of Appeals gravely erred in applying the principle of conspiracy, as defined
under the RPC, to violations of B.P. Blg. 22. She posits that the application of the principle of
conspiracy would enlarge the scope of the statute and include situations not provided for
or intended by the lawmakers, such as penalizing a person, like petitioner, who had no
participation in the drawing or issuance of checks.
noted The Office of the Solicitor General disagrees with petitioner and echoes the declaration of
the Court of Appeals that some provisions of the Revised Penal Code, especially with the
addition of the second sentence in Article 10, are applicable to special laws. It submits
that B.P. Blg. 22 does not provide any prohibition regarding the applicability in a suppletory
character of the provisions of the Revised Penal Code to it.
Article 10 of the RPC reads as follows:
ART. 10. Offenses not subject to the provisions of this Code. – Offenses which are or in the
future may be punishable under special laws are not subject to the provisions of this Code.
This Code shall be supplementary to such laws, unless the latter should specially provide the
contrary.
The article is composed of two clauses. The first provides that offenses which in the future
are made punishable under special laws are not subject to the provisions of the RPC, while
the second makes the RPC supplementary to such laws. While it seems that the two clauses
are contradictory, a sensible interpretation will show that they can perfectly be reconciled.
The first clause should be understood to mean only that the special penal laws are
controlling with regard to offenses therein specifically punished. Said clause only restates
the elemental rule of statutory construction that special legal provisions prevail over general
ones.24 Lex specialis derogant generali. In fact, the clause can be considered as a
superfluity, and could have been eliminated altogether. The second clause contains the
soul of the article. The main idea and purpose of the article is embodied in the provision
that the "code shall be supplementary" to special laws, unless the latter should specifically
provide the contrary.
The appellate court’s reliance on the cases of People vs. Parel,25 U.S. vs. Ponte,26 and U.S. vs.
Bruhez27 rests on a firm basis. These cases involved the suppletory application of principles
under the then Penal Code to special laws. People vs. Parel is concerned with the
application of Article 2228 of the Code to violations of Act No. 3030, the Election Law, with
reference to the retroactive effect of penal laws if they favor the accused. U.S. vs.
Ponte involved the application of Article 1729 of the same Penal Code, with reference to
the participation of principals in the commission of the crime of misappropriation of public
funds as defined and penalized by Act No. 1740. U.S. vs. Bruhez covered Article 4530 of the
same Code, with reference to the confiscation of the instruments used in violation of Act
No. 1461, the Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of the provisions of the
RPC. Thus, in the absence of contrary provision in B.P. Blg. 22, the general provisions of the
RPC which, by their nature, are necessarily applicable, may be applied suppletorily.
185
Indeed, in the recent case of Yu vs. People,31 the Court applied suppletorily the provisions
on subsidiary imprisonment under Article 3932 of the RPC to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is analogous to the
application of the provision on principals under Article 17 in U.S. vs. Ponte. For once
conspiracy or action in concert to achieve a criminal design is shown, the act of one is the
act of all the conspirators, and the precise extent or modality of participation of each of
them becomes secondary, since all the conspirators are principals.33
All these notwithstanding, the conviction of the petitioner must be set aside.
Article 8 of the RPC provides that "a conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony and decide to commit it." To be held
guilty as a co-principal by reason of conspiracy, the accused must be shown to have
performed an overt act in pursuance or furtherance of the complicity.34 The overt act or
acts of the accused may consist of active participation in the actual commission of the
crime itself or may consist of moral assistance to his co-conspirators by moving them to
execute or implement the criminal plan.35
In the present case, the prosecution failed to prove that petitioner performed any overt act
in furtherance of the alleged conspiracy. As testified to by the lone prosecution witness,
complainant Alfredo Oculam, petitioner was merely present when her husband, Adronico,
signed the check subject of Criminal Case No. 7068.36 With respect to Criminal Case Nos.
7069-7070, Oculam also did not describe the details of petitioner’s participation. He did not
specify the nature of petitioner’s involvement in the commission of the crime, either by a
direct act of participation, a direct inducement of her co-conspirator, or cooperating in the
commission of the offense by another act without which it would not have been
accomplished. Apparently, the only semblance of overt act that may be attributed to
petitioner is that she was present when the first check was issued. However, this inference
cannot be stretched to mean concurrence with the criminal design.
Conspiracy must be established, not by conjectures, but by positive and conclusive
evidence.37 Conspiracy transcends mere companionship and mere presence at the scene
of the crime does not in itself amount to conspiracy.38 Even knowledge, acquiescence in or
agreement to cooperate, is not enough to constitute one as a party to a conspiracy,
absent any active participation in the commission of the crime with a view to the
furtherance of the common design and purpose.39
As the Court eloquently pronounced in a case of recent vintage, People vs. Mandao:40
To be sure, conspiracy is not a harmless innuendo to be taken lightly or accepted at every
turn. It is a legal concept that imputes culpability under specific circumstances; as such, it
must be established as clearly as any element of the crime. Evidence to prove it must be
positive and convincing, considering that it is a convenient and simplistic device by which
the accused may be ensnared and kept within the penal fold.
186
Criminal liability cannot be based on a general allegation of conspiracy, and a judgment
of conviction must always be founded on the strength of the prosecution’s evidence. The
Court ruled thus in People v. Legaspi, from which we quote:
At most, the prosecution, realizing the weakness of its evidence against accused-appellant
Franco, merely relied and pegged the latter’s criminal liability on its sweeping theory of
conspiracy, which to us, was not attendant in the commission of the crime.
The rule is firmly entrenched that a judgment of conviction must be predicated on the
strength of the evidence for the prosecution and not on the weakness of the evidence for
the defense. The proof against him must survive the test of reason; the strongest suspicion
must not be permitted to sway judgment. The conscience must be satisfied that on the
defense could be laid the responsibility for the offense charged; that not only did he
perpetrate the act but that it amounted to a crime. What is required then is moral certainty.
Verily, it is the role of the prosecution to prove the guilt of the appellant beyond reasonable
doubt in order to overcome the constitutional presumption of innocence.
In sum, conviction must rest on hard evidence showing that the accused is guilty beyond
reasonable doubt of the crime charged. In criminal cases, moral certainty -- not mere
possibility -- determines the guilt or the innocence of the accused. Even when the evidence
for the defense is weak, the accused must be acquitted when the prosecution has not
proven guilt with the requisite quantum of proof required in all criminal cases. (Citations
omitted)41
All told, the prosecution failed to establish the guilt of the petitioner with moral certainty. Its
evidence falls short of the quantum of proof required for conviction. Accordingly, the
constitutional presumption of the petitioner’s innocence must be upheld and she must be
acquitted.1a\^/phi1.net
WHEREFORE, the instant petition is GRANTED. The assailed Decision, dated May 17, 1999, of
the Court of Appeals in CA-G.R. CR No. 20443 affirming the Decision, dated August 24,
1996, of the Regional Trial Court (Branch 3), Bohol, in Criminal Case Nos. 7068, 7069 and
7070 convicting the petitioner of violation of B.P. Blg. 22 is hereby REVERSED and SET ASIDE.
Petitioner Evangeline Ladonga is ACQUITTED of the charges against her under B.P. Blg.
22 for failure of the prosecution to prove her guilt beyond reasonable doubt. No
pronouncement as to costs.
SO ORDERED.
Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.
Footnotes
 7. ID.; ID.; ID.; ID. — But in such cases, the lack of intention, while it does not exempt from
criminal liability, taken into consideration as an extenuating circumstance.

FIRST DIVISION DECISION

[G.R. No. 4935. October 25, 1909. ] CARSON, J. :

THE UNITED STATES, Plaintiff-Appellee, v. JAMES L. BROBST, Defendant-Appellant.

Kincaid & Hurd for Appellant. The defendant, James L. Brobst, and another American named Mann, were engaged in

Attorney-General Villamor for Appellee. work on a mine located in the municipality of Masbate, where they gave employment to a
number of native laborers. Mann discharged one of these laborers named Simeon Saldivar,
SYLLABUS
1. HOMICIDE; RIGHT TO EJECT TRESPASSERS; CRIMINAL RESPONSIBILITY. — The right to use warned him not to come back on the premises, and told the defendant not to employ him

force or violence in the expulsion of an intruder upon one’s premises, when it exists, is strictly again, because he was a thief and a disturbing element with the other laborers. A few days

limited to the use of such a degree of force as may be necessary under all the afterwards, some time after 6 o’clock on the morning of the 10th of July, 1907, Saldivar, in

circumstances, to obtain the end in view; and the use of excessive force if unlawful. company with three or four others, went to the mine to look for work. The defendant, who
at the time was dressing himself inside his tent, which was erected on the mining property,

2. ID.; DEATH RESULTING FROM A BLOW; REASONABLE DOUBT. — Held, That proof that a when he caught sight of Saldivar, ordered him off the place, ex-claiming in bad Spanish,

heavy blow with the closed fist, over the lower left ribs, inflicted upon a person in apparent "Sigue, Vamus!" (Begone). Saldivar made no move to leave, and although the order was

good health, was followed by the death of that person in less than two hours, sustains a repeated, merely smiled or grinned at the defendant, where-upon the latter became

finding that death resulted from the infliction of the blow, in the absence of proof of any enraged, took three steps toward Saldivar, and struck him a powerful blow with his closed

intervening cause, and the circumstances being such as to afford no ground for fist on the left side, just over the lower ribs, at the point where the handle of Saldivar’s bolo

reasonable doubt that no extraneous cause did in fact intervene. lay against the belt from which it was suspended. On being struck, Saldivar threw up his
hands, staggered (dio vueltas — spun around helplessly) and without saying a word, went

3. ID.; ID.; ID.; EVIDENCE. — The doubt to the benefit of which accused persons are entitled away in the direction of his sister’s house, which stood about 200 yards (100 brazas) away,

on a criminal trial is a reasonable doubt, and not a mere whimsical or fanciful doubt, based and about 100 feet up the side of a hill. He died as he reached the door of the house and

on imagined but wholly improbable possibilities, and unsupported by evidence. was buried some two or three days later.

4. ID.; ID. — Held, That death may result from a blow over or near the heart or in the The trial court found the defendant guilty of the crime of homicide (homicidio), marked

abdominal region, notwithstanding the fact that the blow leaves no outward mark of with the extenuating circumstances, denied in subsections 3 and 7 of article 9 of the Penal

violence. Code, in that the defendant "had no intention of committing so grave an injury as that
which he inflicted," and that he struck the blow "under such powerful excitement as would

5. ID.; ID. — Where death results as the direct consequence of the use of illegal violence, naturally produce entire loss of reason and self-control." Sentence of sic years and one day

the mere fact that the diseased or weakened condition of the injured person contributed of prision mayor was imposed, and from this sentence defendant appealed to this court.

to his death, does not relieve the illegal aggressor of criminal responsibility .
Counsel for the appellant, relying mainly on appellant’s claim that he did not strike Saldivar,

6. ID.; ID.; INTENTION; CRIMINAL RESPONSIBILITY. — One is not relieved, under the law in and that he merely pushed him lightly with the back of his open hand, and relying also on

these Islands, from criminal liability for the natural consequences for one’s illegal acts, the lack of satisfactory proof of the existence of lesions or external marks of violence on the

merely because one does not intend to produce such consequences. body of the deceased, contend: first, that the evidence fails to sustain a finding that the
deceased came to his death as a result of injuries inflicted by the defendant; and, second,

187
that even if it be a fact that the defendant, in laying his hand upon the deceased,
contributed to his death, nevertheless, since the defendant had a perfect right to eject the
deceased from the mining property, he can not be held criminally liable for unintentional
injuries inflicted in the lawful exercise of this right.
Two witnesses, Dagapdap and Yotiga, who were standing close by at the time, swore
positively that the blow was delivered with the closed fist, from the shoulder (de dentro
para fuera), and that it was a hard blow; Dagapdap testifying that, "Al pegar el puñetazo,
Simeon dio vueltas, y despues se marcho" (when the blow was struck, Simeon staggered
and afterwards went away); and Yotiga that "despues de dar el golpe se retrocedio’y
levanto los brazos" (after the blow was struck, he backed away and threw up his arms). The
testimony of these witnesses is clear, positive, and definite and is wholly uncontradicted,
except for the improbable story told by the accused in his own behalf, when he testified
that he testified that seeing Saldivar standing outside his tent, he told him twice to go away
and then stepped up to him and pushed him lightly with the back of his hand, which came
in contact with the handle of Saldivar’s bolo, but not with sufficient force to push him back
or do him any injury. If it had been necessary to use force to compel Saldivar to leave the
place, it is at least highly improbable that the accused approaching him from the front
would have lightly placed the back of his open right hand on Saldivar’s left side, without
attempting to seize him, or to compel him to give ground.
Pedro Leocampo, the only other witness called at the trial who appears to have been
present when the incident occurred, corroborated the testimony of the witnesses
Dagapdap and Yotiga as to all that occurred prior to the actual infliction of the blow,
which he did not see. He testified that at the time when the accused, standing in his tent,
ordered the deceased to leave, standing in his tent, ordered the deceased to leave, he,
the witness, was eating his breakfast, with his back to the accused and the deceased; that
hearing the order, he turned his head and saw the accused start toward the deceased
with his arm outstretched, but that at that moment he turned away and did not see the
accused actually come up to, strike or touch the deceased; that when he saw the
accused approaching the deceased, the accused did not have his fist clenched, but that
he could not say whether the blow was struck with the open hand or the closed fist,
because at the moment when it is said the accused came up to and touched or struck the
deceased, the witness’s head was so turned that he could not and did not see what took
place.
No evidence was introduced at the trial which in any wise tends to put in doubt the truth of
the testimony of these witnesses as to the fact that they were present at the time when and
188
the place where the incident occurred; and of this fact we are satisfied that there can be
no reasonable doubt, although, as frequently happens when ignorant witnesses are
testifying in the courts in these Islands, their evidence is conflicting as to the precise hour by
the clock when it took place.
Some attempt is made to discredit the testimony of Yotiga, because it appears from the
record that in answer to certain questions on his examination-in-chief, he stated that when
the blow was struck he was some hundred brazas (200 yards) away. It developed,
however, on examination by the trial judge, that this answer was given under the impression
that the question asked was the distance from the mine to the house of the sister of the
deceased, as to which considerable testimony was taken; and it is very clear from all the
testimony that both these witnesses were standing within a few yards of the defendant
when he struck the blow.
The testimony of Dagapdap is also criticized because, in answer to the opening questions
on the examination-in-chief, he spoke of the blow inflicted as a bofetada (a slap with the
open hand on the cheek), which, later on in his testimony, he changed to the word
puñetazo (a blow with the first), as a result, it is intimated, of suggestive questions by
counsel for the prosecution. We do not think this criticism well founded, or that the
language of the witness on which it rests sustains the inference sought to be drawn
therefrom. In the first place, it must not be forgotten that the witness was manifestly an
ignorant man, unskilled in the use of words, and testifying in a remote province in a native
dialect; and that his testimony was interpreted into the Spanish of the record by an
interpreter who might well have been mistaken in selecting the precise Spanish equivalent
of the word or words actually used by the witness, and whose use of Spanish throughout the
record does not demonstrate such precision and nicety in the use of words as to justify the
laying of too much stress on the phrasing adopted by him in the haste of interpretation in
the course of a trial in open court: so that, in our opinion, the detailed description of the
manner in which the blow was inflicted, as given by the witness without suggestion or
assistance of any kind, is much more decisive as to its nature than the word by which
reference to it was made. And in the second place, as appears from the Diccionario
Enciclopedico de la Lengua Castellana and the Diccionario de la Lengua por la
Academia Española, the word "bofetada," when used strictly, connotes not merely a blow
with the open hand, but such a blow struck on the cheek or side of the face, a meaning
which the whole testimony or the witness clearly discloses it was not his intention to give to
whatever word he did actually make use of in referring to the act. The definition of the
word "bofetada," as given in the former dictionary, is "a blow which is given on the cheek
(mejilla) with the open hand," and in the latter is "a blow given the open hand, on the side
of the face (carrillo) or cheek (mejilla) of another."cralaw virtua1aw library
It has also been suggested that the testimony of the witnesses for the prosecution is
inherently improbable, because, as it is said, if the blow had been struck as describe by
them, the injured person would necessarily have "doubled up or over," and not, as appears
from their testimony, thrown up his hands and staggered away. No expert testimony was
introduced at the trial upon this point, and while it may, perhaps, be admitted that if the
blow took effect in the abdominal region, common experience would justify us in expecting
as a result of the blow, that the injured person would "double up or over," it must not be
forgotten that the blow having been delivered over the ribs on the left side, it may as well
have taken effect in the region of the heart; in the absence of expert testimony, we do not
think in that event, evidence that the injured person threw up his hands and staggered
away is necessarily in conflict the evidence of the witnesses for the prosecution as to the
weight of the blow and the place where it was inflicted.
We are satisfied that the evidence of record leaves no room for reasonable doubt with his
closed first; and that whatever authority the defendant may have had to eject the
deceased from the mining property and to use physical force to that end in case of need,
the blow thus struck was far in excess of such authority, and was, therefore, unlawful, and
can not be excused or justified as an exercise of necessary force in the exercise of a right.
The defendant’s own testimony does not indicate that there was any danger to be
apprehended from Saldivar, and there is nothing in the record which would indicate that
he would offer a violent or even a substantial to an attempt to expel him from the mining
property.
We are satisfied also that the deceased came to his death as result of the blow inflicted by
the defendant. Two or three days prior to his death he was employed as a laborer in
defendant’s mine; his sister testified that on the morning of the day he died, he left her
house in apparent good health and went to the mines to look for work; a short time
afterwards he received a violent blow on his lower left side, a region of the body where
many of the vital organs are located; and immediately thereafter, he started up the short
trail leading to his sister’s house, and died as he reached the door. In the absence of
evidence of any intervening cause, we think there can be no reasonable doubt that his
death resulted from the blow.
Counsel for appellant suggest that death may have been the result of some cause
unknown, such as a fall, an assault by robbers, or perchance a suicidal frenzy, intervening
between the time when the accused was last seen starting up the 200-yard trail to his
189
sister’s house, and the time when, as she testified, he died just as he reached her door, on
his way back from the mine; and that the accused in entitled to the benefit of the doubt.
But the doubt which must be decided in favor of an accused person in a criminal trial is a
reasonable doubt, and not a mere whimsical and fanciful doubt, based upon imagined
but wholly improbable possibilities, unsupported by evidence; and while we do not hold
that it is absolutely and morally impossible that some other cause could have intervened to
bring about the death of Saldivar, we do hold that there can be no reasonable doubt in
the mind of a reasonable man that death was in fact brought about by the blow inflicted
by the accused, and was not the result of some independent cause intervening during the
very short period of time prior to his death, during which he was not under observation by
witnesses called at the trial.
Counsel for the appellant enlarge on the fact that accepting defendant’s statement that
he sent the deceased away from the mines about a quarter past six, it would appear from
the testimony of the sister of the deceased that about two hours may have elapsed
between that time and the time when he arrived at her house. The sister fixed the time of
the arrival of her brother at from 7 to 8 o’clock or possibly a little later; but she appears to
have been an ignorant woman who did not know how to read the face of a clock, and it is
quite clear that hers was no more than a rough estimate, based on the height of the sun,
and the most that can fairly be inferred from the testimony is that the deceased was struck
early on the morning in question, and that not long afterwards on the same morning, he
died at the door of his sister’s house 200 yards away. But even if it be granted that two
hours actually did elapse from the time the deceased left that mines, until he reached his
sister’s house, this interval is not long enough to materially weaken the inference that the
death resulted from the blow.
It is true that no autopsy was had on the body of the deceased, and that a medical officer
called in by the accused who saw the body, but who does not appear to have examined
it very closely , certified that he found no outward lesions or mark or violence; but this
evidence is not sufficient to negative the existence of internal lesions, for he medical
authorities inform us that death may and often does result from a blow over or near the
heart of in the abdominal region, notwithstanding the fact that the blow leaves no outward
mark of violence; and there is evidence in the record of the discovery on the cadaver of
two suspicious black spots, one about the place where the blow was struck, and another at
or near the umbilicus, though the evidence fails to disclose the precise nature of these
discolorations. (Medical Jurisprudence, Taylor, 12th Am. Ed., pp. 310 and 388; Moulin’s
Treatise on Surgery, Hamilton, part 2, chap. 1, p. 151; Tratado de Medicina Legal por Legran
de Sulle, Vol. II, pp. 206,207.)
It has been suggested that the deceased may have had a weak heart or some other
diseased organ, and that but for such physical defect death might not have ensued from
the mere force of the blow inflicted by the defendant. There is no evidence to this effect,
and on the contrary there is testimony in the record that on the morning before he died he
was in apparent good health; and the fact that a few days before, he was able to work in
the mines, and that he came to the mines that day in search of work, renders it highly
improbable that he was suffering at that time from any grave organic weakness. But
however this may have been, it has been frequently and justly decided that where death
result as a direct consequence of the use of illegal violence, the mere fact that the
diseased or weakened condition of the injured person contributed to his death, does not
relieve the illegal aggressor of criminal responsibility. (U. S. v. Luciano, 2 Phil. Rep., 96; U. S. v.
Montes, 6 Phil. Rep., 443; see also decisions of supreme court of Spain, March 10, 1871, and
June 26, 1880.)
Counsel for appellant also contend that even if it be granted that in unlawfully exercising
force upon the person of the deceased, the appellant caused or contributed to his death,
nevertheless he should at most be convicted of homicidio por imprudencia temeraria
(homicide as a result of reckless negligence), because, manifestly, the unlawful act was not
committed with intent to kill, and because, as counsel contend, the striking of the blow by
the appellant was not an act adapted, or likely (idoneo) to inflict a death wound under
ordinary circumstances, or reasonably calculated so to do. In support of this contention
counsel cite decisions of the supreme court of Spain of November 9, 1885, February 10,
1876, July 5, 1888, and July 12, 1890, and appears to rely especially on the former decision
wherein sentence of homicidio por imprudencia temeraria was imposed, the court holding
"que es condicion esencial del delito de homicidio, que el hecho material de que resulte
sea umpulsado por voluntad libre encaminada por acto idoneo a causar la muerte o
algun mal fisico que pro consecuencia natural la produzca."cralaw virtua1aw library
In that case, however, it was proven, and the court found that not only did the defendant
no intend to kill the deceased but also that he did not intend to do him any physical injury
whatever; but in the case at bar the evidence conclusively establishes the voluntary,
intentional, and unlawful infliction by the accused of a severe blow on the person of the
deceased; and while it is true that the accused does not appear to have intended to take
the life of his victim, there can be no doubt that in thus striking the deceased, he intended
to do him some injury, at least to the extent of inflicting some degree of physical pain upon
him, and he is, therefore, criminally responsible for the natural, even if unexpected results of
his act, under the provisions of article 1 of the Penal Code, which prescribes that —
190
"Any person voluntarily committing a crime or misdemeanor shall incur criminal liability,
even though the wrongful act committed be different from that which he had intended to
commit."cralaw virtua1aw library
In such cases the law in these Islands does not excuse one from liability for the natural
consequences of his illegal acts merely because he did not intend to produce such
consequence, but it does take that fact into consideration as an extenuating
circumstance, as did the trial judge in this case.
What has been said sufficiently disposes of all errors assigned by counsel for appellant,
except certain alleged errors of procedure in the court below which we do not think it
necessary to discuss, because even if it be admitted that such errors were committed, they
do not appear to have in any wise prejudiced the substantial rights of the defendant.
The judgment of conviction and the sentence imposed by the trial court should be and are
hereby affirmed, with the costs of this instance against the Appellant. So ordered.
Arellano, C.J., Torres and Mapa, JJ., concur.
Separate Opinions
MORELAND, J., with whom concurs Johnson, J., dissenting:chanrob1es virtual 1aw library
The facts in this case, as claimed by the Government, are as follows:chanrob1es virtual 1aw
library
The defendant, James L. Brobst, and another American, named Mann, were engaged in
working a mine belonging to them, located in the municipality of Masbate, where they
gave employment to a number of native laborers. Mann discharged one of these laborers,
named Simeon Saldivar, ejected him forcibly from the premises and warned him no to
come back, and told the defendant no to employ him again or permit him to be upon the
premises because he was a thief and a disturbing element with the other laborers. A few
days afterwards, at about 6 o’clock in the morning or a bout the 10th of July, 1907, Saldivar,
in company with three or four others, went to the mine ostensibly to look for work. The
defendant, who at that time was dressing himself inside his tent, which was erected on the
mining property, catching sought of Saldivar, ordered him off the place. Saldivar made no
move to leave, and, although the orders was repeated, still did not leave, although he said
and did nothing whatever; whereupon, as claimed by the Government, the defendant
became enraged, took three steps towards Saldivar and struck him a powerful blow with
his fist on the left side, just over the lower ribs. Saldivar turned around, without saying a
word, and went in the direction of his sister’s house, which stood about 200 yards away and
about 100 feet up the side of a hill. He was not seen by anybody after starting toward the
house. About two hours later, slightly more of less, he came to the front door of the house in
a dying condition. He died just after being carried into the house and was buried two or
three days later.
The trial court found the defendant guilty of the crime of homicide, marked with the
extenuating circumstances defined in subsections 3 and 7 of article 9 of the Penal Code in
that the defendant had no intention of committing so grave an injury as that which he
inflicted and that he struck the blow under such powerful excitement as would naturally
produce entire loss of reason and self-control. Sentence of six years and one day of prision
mayor was imposed, and from this sentence the defendant appealed to this court.
The claim of the defendant is that he was not enraged, that he did not strike Saldivar, the
decedent, a blow with his fist or a blow in any other manner, but that he simply stepped up
to the decedent, put his open hand against him and pushed him gently backwards.
To secure a conviction it was necessary for the Government to prove, first, that the
defendant unlawfully injured the decedent, and, second, that the decedent died because
of that injury.
In this case the death is admitted. The cause of death is in dispute. The Government seeks
to prove the cause of death by circumstantial evidence. The prosecution asserts that it has
proved by direct evidence a blow or push delivered by the defendant to the person of the
decedent, and, the subsequent death being admitted, asks the court to make the
deduction that the one resulted from the other. No autopsy was had. No examination of
the body, either before or after death, which merits the slightest consideration, was made
by the prosecution. No expert testimony worthy of the name was produce by the
Government as to the cause of death. Such as was given is not only wholly valueless, but
positively ridiculous.
The prosecution claims to have proved by reliable evidence, and rests its case wholly upon
that proposition, that the defendant administered a powerful blow with the closed fist in the
lower left side; that the death of decedent occurred very soon thereafter, and that
therefore, the irresistible inference is that he injury caused the death. The claim of a proper
191
conviction rests upon the proposition laid down generally by the authorities that where
there has been inflicted an injury sufficient to produce death, followed by the demise of the
injured person, the presumption arises that the injury was the cause of death, and, if no
other cause is suggested by the evidence, the conclusion becomes practically irresistible
and need not be corroborated by expert testimony. It should be noted here, however, in
order to avoid confusion, that if there is no injury sufficient to produce death, then that
presumption does not arise and no conclusion as to the cause of death can be indulged
without additional proof.
The first question to be decided in this case is, Was the blow one which, in the ordinary
acceptation of the term, was sufficient to produce death? If it was, and that fact is
established by the evidence beyond a reasonable doubt, then the conviction of the
defendant might possibly be sustained — a proposition not necessary to decide under my
view of the case. If it was not, then, there being an absolute failure of proof as to the cause
of death, the judgment of conviction must be reversed.
The resolution of this question depends, in this particular case, wholly upon the nature and
character of the blow delivered.
After a very careful and thorough examination of the proof adduced at the trial, I can not
bring myself to believe that the prosecution has established satisfactorily that the blow
complained of was sufficient to produce death.
I am not convinced that the claim of the Government that the alleged blow was delivered
with the clenched hand, or fist, has been sustained. Three witnesses were sworn on behalf
of the Government to the question of the blow alleged to have been delivered by the
defendant to the decedent. One of them, Pedro Leocampo, testified flatly and directly
that the push or blow (he does not designate by express words which it was) was
administered with the open hand. At page 19 and following pages of the evidence he
declares that, at the beginning of the incident in question between the defendant and the
decedent, he had his back toward the participants, eating his breakfast; that he heard the
defendant say to the decedent, "Fuera, go ahead, vamus," and immediately turning his
head he saw the defendant with his open hand extending toward and touching the body
of the decedent; that he saw decedent then turn and walk away. Later, in replying to
questions put by the trial judge, he said he was not quite sure whether the open hand of
defendant actually touched decedent’s body or not. It is unquestionable, however, that
the movement of the defendant’s hand which he saw was the blow or push which it is
claimed caused the fatal injury; because it is admitted by all, and the evidence also on
that point is undisputed, that what the witness saw was at least the critical part of the
incident — the delivery of the alleged blow. Moreover, it is conceded that the alleged
blow was not delivered until after the defendant had uttered the words referred to and
had stepped forward at least one peace; and it is nowhere asserted or claimed by
anybody that the defendant extended his hand toward the decedent more than once or
that more than one blow was given. It is evident, therefore, that what the witness saw was
the delivery of the very blow or push which the prosecution claims was the cause of death.
If can not well be imagined, in view of the testimony given by this witness, how the
Government could fairly claim otherwise. These conclusion as it is found in the record. In
answer to a question put by the fiscal on direct examination he said:jgc:chanrobles.com.ph
"T. Que estuve de espalda con ellos y el americano no ha dicho nada y momentos
despues dejo: ’fuera,’ ’go ahead,’ le vi que tenia la mano abierta y esta mano toco el
cuerpo de Simeon, pero no he visto como estabe."cralaw virtua1aw library
After cross-examination the court questioned the witness as follows:jgc:chanrobles.com.ph
"J. Oyo Vd. ruido de algun golpe cuando el acusado Brobst dijo ’fuera de aqui?’ — T. No
he oido el golpe.
"J. En el momento de decir ’fuera de aqui,’ a que distancia estabe Simeon del acusado? T.
A distancia de mas de una vara.
"J. Y vio Vd. al acusado empujar al occiso Simeon? — T. No puedo decir si el acusado
empujo a Simeon.
"J. Vio Vd. a Simeon Saldivar retroceder en el momento de decir el acusado ’fuera de
aqui? — T. He visto retroceder y dar las espaldas.
"J. Cuando hizo el ademan de empujarle, como tenia el puno — cerrado o abierto? — T.
Tenia la mano abierta.
"J. En que forma? — T. Tenia abierta la mano."cralaw virtua1aw library
The testimony of this witness clearly discloses the fact that he saw the critical part of the
event, that is, the part wherein the hand of the defendant touched the body of the
decedent in the alleged blow. At that moment the hand of the defendant was open.
192
The witness Miguel Yotiga, another witness called by the Government, testified on pages
2,3, and 4 of the record that during the month of July, 1907, he was at the place questions
and answer, among others:jgc:chanrobles.com.ph
"F. Sabe Vd. se durante el mes de Julio de 1907 que estuvo Vd. trabajando alli ha occurrido
alguna cosa extraoridinaria? — T. Se, senor.
"F. Que es? — T. El haber abofeteado el americano a untao.
"F. Estaba Vd. presente? — T. Se, señor.
"F. Relate Ve. fielmente en este juzgado todo lo que Vd. ha presenciado desde el principio
hasta el fin. — T. Yo he sido asalariado por el para acarrear arroz. Cuando llegue en las
minmas era ya de noche, y al requerir nuestro salario nos dijo Cristobal que nos
dormiriamos alli porque el americano estabe ya durmiendo y que Vds. pueden salir muy
temprano por la manana. Se nos dio el salario per el acarreo del arroz, y despues de
darnos el salario se nos dijo que quedaramos para desayunar. Despues de desayunar
llegaron tambien 4 hombres; el cocinero me dijo: ’Miguel, presente Vd. a estos 4 hombres
por si el Sr. Brobst los quiere empliar en el trabajo.’ Brobst so aim pueden trabajar esos 4
hombres. El Sr. Brobst se levanto para ver a aquellos 4 hombres, al ultimo de los cuales le
pego una bofetada, y yo habia visto la bofetada que le dio en la cintura en el bolo
colocado en la cintura, e inmediatamente el hombre se dirigio a la casa de su hermana.
"F. A que distancia estaba Vd. de Mr. Brobst cuando dio el puñetazo a aquel individuo? —
T. Uns distancia de 10 metros.
"F. Sabe Vd. por que el acusado habia dado puñetazo a aquel? — T. Que yo le he visto
pegar con el bofeton, pero que no se el motivo.
"F. Cruzaron entre ellos alguna disputa o rina antes que el acusado haya dado el golpe? —
T. No se nada, unicamente he visto que cuando llegaba Mr. Brobst dio el puñetazo."cralaw
virtua1aw library
Later on the witness says, in reply to leading questions, that the blow was struck with the
closes hand and was a heavy one.
It will be observed from this testimony that the witness, in making his statement in narrative
form and without the influence which particular words in questions frequently exerts on
simple-minded witnesses, used the words abofeteado and bofetada in speaking of the
kind of blow which the defendant administered to the decedent. The word bofetada, as
well as abofeteado, means a blow with the open hand. It does not mean a severe blow,
and particularly not a blow with the fist or closed hand. It is much nearer in character to a
push than it is to a puñetazo, which is always a blow with the fist. It is a light slap rather than
a blow. It is the diminutive of the word bofeton; that is to say, if it can be called a blow at
all, it is a gentler blow than would be signified if the word bofeton were use. All of the
dictionaries say that puñetazo is a blow with the clenched hand, or fist, and that bofetada
is a blow with the open hand. The dictionaries also say, in giving the definition of bofeton,
that it is the aumentativo de bofetada. In his testimony on pages 2, 3, and 4, the witness
continually and persistently used the word bofetada in describing the blow given by the
defendant to the decedent until the word puñetazo was suggested to him or put into his
mouth, as it were, by the questions of the fiscal. Then the witness himself picked up the word
and thereafter used it. No amount or species of word torture can make the word "slap"
mean a blow with the fist. No more can bofetada be made to mean puñetazo. A witness
who, in describing the same blow, first uses the word bofetada and then, after suggestion,
changes it to puñetazo, provokes a contradiction in his testimony, which, if not explained,
militates strongly against his credibility. This is especially so when the change in the word
goes to the very essence of the cause of action, as it does in this case. This whole case
depends upon whether the word puñetazo or the word bofetada correctly describes the
event out of which this action grows:chanrob1es virtual 1aw library
It is but repeating the general experience of those familiar with the trial of causes to say
that suggestions to a witness by the form and specific wording of a question are of very
frequent occurrence. The suggestion produces the same result whether wilfully made and
received or innocently indulged, as was undoubtedly the case here on the part of the
fiscal. In the case of an ignorant or simpleminded witness, his vocabulary being limited, he
catches very readily, as a rule, the words used by the interrogator and, in his answers, uses
the exact words in which the question is propounded, without, perhaps, being in the least
conscious that the words he assumes do not exactly, sometimes not all closely, represent
what he really wants to express. These suggestions display one of the vices found by the
courts in what are termed "leading questions," and furnish a reason for the rule uniformly
enforced in trial courts that they will not be permitted.
The questions and answers already quoted illustrate this vice forcibly as to the use by the
witness Yotiga of the words bofetada and puñetazo. On page 5 of the evidence occurs
another illustration. There the fact sought to be elicited was whether the blow was gentle or
severe. "F. Hizo despacio o fuerte? — T. Fuerte." On page 12, 19, and 24 the following
193
occurs:jgc:chanrobles.com.ph
"F. Donde toco — directamente en el cuerpo o en el bolo? — T. Dio en el bolo.
"F. En que parte del bolo — en la vaina o en el puno? — T. En el puno del bolo.
"F. Era fuerte el puñetazo of flojo? — T. Fuerte.
"F. Cuando el acusado pego a Simeon Saldivar, estaba riendose o estaba furioso? — T.
Furioso.
"F. Tenia cerrado el puno o abierto la mano? — T. Cerrado la mano."cralaw virtua1aw
library
In these illustrations, it will be observed, the witness is presented by the questions with only
two words to make use of in answering — one word the very extreme in one direction and
the other word the very extreme in the other. The ignorant or simple-minded witness whose
vocabulary is extremely limited, who is unused to court proceedings, is strongly tempted,
and in many instances is virtually forced, to accept one word or the other and thereby
assume one extreme or the other in making his answers, although the word made use of
may not within many degrees express his real meaning. All of these questions were leading
and suggestive, and, judging from the testimony given anterior to those questions,
especially by the witness Yotiga, led to very marked contradictions of, or, at least, changes
in, the evidence as previously presented.
The third and last witness for the Government who testified as to the blow was Fermin
Dagapdap. In describing the blow this witness from the first used the word puñetazo. This
witness, however, stated that he was at the time of the occurrence about 100 brazas (600
feet) from the participants. Later in his testimony he attempts to claim that he gaves 100
brazas as the distance which the decedents was from his brother’s house at the time of the
occurrence. This, however, is very difficult to believe in view of the evidence which he
gave, as shown on page 25, which follows:jgc:chanrobles.com.ph
"F. A que distancia estaba Vd. de los dos cuando dio el puñetazo? — T. Unas 100 brazas.
"F. Vd. estaba a 100 brazas de distancia? — T. Se, senor.
"F. Indique Vd. aqui la distancia aproxemadamente de las 100 brazas que Vd. dice. — T.
Aquella casa de techo de hierro.
"F. Esa es la distancia donde Vd. estaba cuando dio el punetazo a Simeon Saldivar? — T. Si,
señor."cralaw virtua1aw library
If, after all that questioning as to the distance he was away from the scene of the
occurrence, and if, after all the effort which the fiscal evidently made to induce in him a
proper comprehension of the nature of the question, the witness did not then understand,
he displayed qualities, or the lack of them, which justly lead to the conclusion that his
testimony ought not to be given any weight whatever, especially where it is in conflict with
the testimony of any witness more reliable. Moreover, his manifest evasions on cross-
examination materially weaken any claim which may be made in favor of his credibility.
These witnesses for the Government are in conflict in other particulars. Yotiga declared that
the incident occurred at eight o’clock in the morning. Dagapdap swore that it occurred at
four o’clock in the morning. Yotiga declared that if happened while the workmen were
eating breakfast; Dagapdap averred that it took place after breakfast and while the men
were working.
It seems to me, therefore, that the direct testimony adduced by the Government to prove
that the defendant delivered against the body of decedent a blow with his fist, is
conspicuously weak, particularly when we take into consideration that one of the
Government witnesses flatly contradicts the other two in every important point; and that
testimony, taken in connection with all the circumstances surrounding and accompanying
the incident, seems rather to support the testimony and claim of the defendant that he did
not strike the decedent with his fist but gave him a push with his open hand.
The following are the said circumstances, present at the very time the act complained of
was committed, which go to prove that the blow, alleged to have been delivered against
the body of the decedent was not blow at all in the real sense of the word and was wholly
insufficient ordinarily speaking, to cause any injury whatever:chanrob1es virtual 1aw library
The decedent at the time showed absolutely no signs of having been injured in the slightest
degree.
(a) The three witnesses for the prosecution above referred to, Yotiga, Dagapdap and
Leocampo, if their testimony is to be believed, unite in declaring that they were looking the
decedent full in the face when the alleged blow was struck and that they saw thereon
194
nothing but a perfectly natural expression. There is not the slightest evidence to show that
the countenance of the decedent betrayed even the faintest appearance of Spain,
distress or discomfort at the time the blow was delivered or at any time thereafter so long as
he was observed.
(b) Nobody heard any blow struck. It is concealed by every witness for the Government
that there was no sound of a blow. There were at the place where the incident occurred
about twenty men, all of them as close to the participants as were the three witnesses for
the Government and yet, so far as can be gathered, not a person heard the sound of a
blow. In fact, only three of the twenty (the witnesses for the Government) knew that
anything unusual had happened at all.
(c) The decedent gave no cry of pain, made no exclamation, uttered no sound. This is the
uncontradicted proof.
(d) The decedent did not reel or stagger backward, forward or sideways, nor did he lose his
equilibrium in any way.
This is established by uncontradicted proof. Every witness for the Government declares that
after the delivery of the alleged blow the decedent remained in a perfectly upright
attitude and in a natural position; and that immediately after receiving the blow he turned
and walked away.
One of the witnesses, after being sharply questioned by the fiscal, stated that on the
delivery of the blow the decedent stepped back, threw up his arms and walked away. The
following is his testimony:jgc:chanrobles.com.ph
"El Sr. Brobst . . . le pego una bofetada y yo habia visto la bofetada que le dio en la cintura
en el bolo colocado en la cintura e immediatamente el hombre se dirigio a la casa de su
hermana.
"F. En que posicion se quedo aquel individuo en el mismo momento de recibir el golpe? —
T. Que inmediatamente de haber recibido el puñetazo se marcho.
"F. Yo le pregunto a Vd. en el mismo momento de haber dado el puñetazo. — T. Que
despues de dar el golpe se retrocedioy levanto los brazos yen seguida se marcho."cralaw
virtua1aw library
It will be observed, from the evidence quoted, that the witness testified at first the
decedent did nothing on receiving the blow except to turn and walk away. This testimony
the witness repeats in response to a second question of the fiscal. The third question as to
the same point was evidently very sharply put by the fiscal, and that effort drew from the
witness the additional statement, quite inconsistent with his two previous ones, that the
decedent stepped back and threw up his arms. Neither of the other two witnesses for the
Government saw this latter manifestation on the part of the decedent. One of them,
Leocampo, testifies directly that no such thing happened, and the other, Dagapdap,
although one of those who claimed to have been a eyewitness of the whole affair and
who assumed to describe the whole incident in detail, fails to mention the very important
fact, if it is a fact, that the decedent threw up his arms. He testified that the decedent
simply whirled around and walked away.
The claim of the prosecution that the decedent staggered at the time of the alleged blow
is based upon the translation of "dio vueltas." One of the Government’s witnesses says that
on the delivery of the blow the decedent "dio vueltas y se marcho." So far as my researches
go, no such interpretation can be given those words. They do not mean that he
"staggered." They mean simply that he turned or whirled around. This might follow a blow or
a push. No other witness uses these same words; but the other two witnesses for the
Government, in describing the same act of the decedent, used words which, it may fairly
be assumed, in order to maintain as much harmony as possible in the testimony of the
Government’s witnesses, were intended to mean the same thing. Such words are "se dirigio
a la casa," and "volvi la cara y se marcho el difunto." These words were used by the other
two Government witnesses in describing the very same act to which the other Government
witness applied the description "dio vueltas." Those words can not possibly be construed to
mean that the decedent staggered.
(e) The decedent, according to the testimony of the prosecution, did not attempt to ward
off, dodge or escape the blow in any way.
He had abundant opportunity to do so. It is nowhere denied, but always admitted, that the
defendant twice ordered the decedent to leave the place and after delivering the order
the second time advanced toward him a peace or two. The decedent was fully warned.
Yet the witnesses of the prosecution claim that, up to the time the blow touched him, he
made no move whatever. It is unbelievable that the decedent would permit the
defendant to walk up to him, after due warning, and plant a powerful blow in his abdomen
without any effort to dodge or escape and without the slightest effort to ward off the blow
by movement of body, hand, or arm. The throwing of the arms down to protect the
195
abdomen in such a case is involuntary and almost inevitable; and the fact that he did not
do so points strongly to the conclusion that he was not struck as claimed.
(f) The body of decedent exhibited no external sign of injury after death.
Two witnesses were sworn by the prosecution as to signs of injury upon the body of the
decedent. One, the father of decedent, laborer, testified that at 4 o’clock of the afternoon
of the day after the alleged injury (the alleged injury occurred at about 6 a. m.) he
examined the body of decedent and found a black spot about the size of a peso on the
left side. The other witness, Alejandro Santiago, 70 years, farmer and herbalist, declared
that he examined the body, he does not remember when, and found a black spot on the
ribs (he does not remember on which side of the body) and another one on the navel. The
cause of these spots, if they really existed, is pure speculation. Certainly one blow could not
make both. They may have been caused by the decedent falling or by handling the at the
time of or subsequent to death, or by ecchymosis. No one knows. Certain it is that an
examination of the body by a licensed physician, Hans Hoch, made the day of the alleged
injury, some hours thereafter, disclosed, so the physician testified, absolutely no external sign
or evidence of injury. While the absence of external signs of injury is not conclusive that
there was no injury, still such signs are usual in cases of this character and their absence is
significant and important.
The weight of the testimony produced seems, therefore, to be that there were no external
signs of injury upon the body of decedent — certainly none that were fairly traceable to
the blow, even if delivered in the manner and with the force claimed by the Government.
It seems to me, therefore, that there is an essential and fatal conflict in the evidence of the
prosecution. The prosecution claims (and portions of the direct testimony of some of its
witnesses tend to prove) that the defendant gave the decedent a powerful blow with his
fist, full in the left side; on the other hand, other positions of that testimony are utterly and
destructively contradictory to that claim. It is contrary to the universal experience of life to
assert that a man, receiving in his lower left side a powerful blow with the fist, a blow which,
it is claimed, was sufficiently forcible to cause death within a short time, can maintain an
erect and natural posture and exhibit absolutely no signs of pain. Experience also
demonstrates that it is little short of the impossible that one receiving such a blow would
throw his arms up. I do not believe a case can be cited where that has occurred. It is the
experience of mankind that under such circumstances the person always throws his arms
down. Such a blow in or about the abdomen or in the lower ribs produces such a shock to
the nervous system, causes such a contraction of all the muscles thereabouts, induces such
a difficulty of respiration, and such great pain, that the person so struck is not only wholly
unable to throw his arms up but he is absolutely incapable of maintaining the body in an
erect position. He involuntarily and inevitably throws the arms down the abdomen and
bends the body forward at the hips. In other words, using which almost universal
experience has taught accurately describes the position necessarily assumed by the one
receiving such a blow, he would "double up like a jackknife." The claim that the blow was a
powerful one delivered with the fist is so utterly inconsistent with the appearance and
conduct of the decedent at the time of the assault subsequent thereto as to lead almost
necessarily to the conclusion that no such blow was struck. Granting such a blow, it would
be little short of the impossible, it certainly would be most extraordinary, for the decedent to
exhibit no signs of pain, maintain an erect and natural position, preserve perfectly his
equilibrium with the exception of stepping backward a little, turn in the ordinary way and
walk off the premises at his usual and natural gait and with his usual and natural carriage.
The entire absence of symptoms or evidence of injury at the time of the act complained of
is, in my judgment, of the very gravest importance. It speaks louder and stronger and
clearer than all the other evidence in the case as to whether or not the decedent was
actually injured at that time.
On the other hand, the theory and claim of the defendant, that he simply stepped forward
and pushed the decedent backward lightly with the open hand, after ordering him to
leave, explains fully and satisfactorily every fact and every circumstance above mentioned
as being so utterly inconsistent with the claim of the prosecution.
(1) It explains why the decedent did not try to dodge or escape or protect himself by
movement of the body, or by using the hands and arms to defend himself from the assault
of this enraged and furious men. There was no violence from which he needed to protect
himself.
(2) It explains why there was no cry of pain, no appearance of distress, no reeling,
staggering, falling, doubling up or other exhibition or sign of injury. It explains why he did not
at once drop to the ground, as he naturally and almost inevitably would on receiving a
blow such as is sought to be established by the prosecution. There was no violence or force
to cause any of these things.
(3) It explains why decedent was able to walk away promptly at his usual gait and with his
customary carriage.
(4) It explains why there was no satisfactory proof of marks of violence or external signs of
196
injury on the body of the decedent.
(5) It explains why nobody of all who were present heard the sound of a blow, not even the
witnesses for the prosecution.
(6) It explains why, among the twenty persons there present, only a very small per cent
knew that anything unusual had taken place.
(7) It explains why the witness Yotiga first used the word "bofetada" instead of" puñetazo" or
"golpe."
(8) It explains why the witness Leocampo testified that the defendant’s hand was open at
the very time of its contact with decedent’s person.
(9) It explains the entire lack of reason or motive on the part of defendant inducing him to
inflict on the decedent punishment as severe as would follow such a blow.
It seems, therefore, to be demonstrated from the evidence that the prosecution has not
only not sufficiently substantiated its claim that the blow was delivered with the fist, but has
failed as well to show that any blow, in the real sense of that term, was struck. Rather the
strong tendency of the proof, taken as a whole, together with all the circumstances, is to
support the contention of the defendant that he simply pushed the decedent back with
the open hand. That being so, it is perfectly apparent that such an act was utterly
insufficient to produce death.
As stated at the outset, the Government rests its case wholly upon the proposition laid
down by the authorities that where there has been inflicted an injury sufficient to produce
death, followed by the demise of the injured person, the presumption arise that the injury
was the cause of death, and, if no other cause is suggested by the evidence, the
conclusion becomes practically irresistible and need not be corroborated by expert
testimony. But it must always be remembered that the basis of and the reason for that
presumption is the injury sufficient to produce death. If the injury is not one capable of
producing death, ordinarily speaking, then no such presumption can possibly arise. The law
invariably requires that there be established by clearest proof the connection between the
injury and the death, making the one result of the other. Where the injury is one capable of
producing death that connection of cause and effect is established between the injury
and death by the inherent nature of the act — its sufficiency to produce death. But where
the act is one not sufficient to produce death, then the relation of cause and effect is not
established for the reason that the act fails of the very quality from which the presumption
of cause and effect springs, namely, its capability of producing death. In such a case,
when the Government has proved simply the injury and death, it has done nothing. The
connection between the two is wholly lacking. It is indispensable to a conviction in such
case that the Government prove the cause of death; and that cause must be proved in
addition to the fact of injury. This the Government has wholly failed to do. No effort was
made to do so. The Government rested its case entirely upon the presumption, which it
assumed arose by reason of the injury and death, to establish the relation of cause and
effect between them. No autopsy was held. No one knows the cause of death. The
incident occurred at about 6 o’clock a.m. The decedent died at about 8 o’clock the same
morning. He left the scene of the event instantly. He was not seen again by anybody, so far
as the evidence shows, until the very moment of his death. Where he was, what he did,
and what happened to him during the two hours intervening the evidence does not
disclose.
It being fairly established by the evidence that the defendant simply pushed the decedent,
the remaining question is simple. The land and premises where the event transpired
belonged to the defendant. The decedent, according to the evidence, was known to the
defendant as a thief and as maker of mischief among the workers in the mines. Only two
days before the event from which this suit arose defendant had seen the decedent forcibly
ejected from these same premises by one Mann, a partner of defendant; and the
defendant was at that time advised by Mann that the decedent was a mischief-maker and
a thief and should not be allowed about the mines. The defendant had a right to protect
his property from invasion particularly by such as he believed decedent to be; and if, being
upon the premises, decedent refused to leave when given fair warning, the defendant had
a right to eject him therefrom using no more force than was necessary to that end.
(Cooley, Torts, 1st Ed., 167; McCarty v. Fremont, 23 Cal., 196; Woodman v. Howell, 45 Ill., 367;
Bucher v. Parmelee, 9 Vt., 352; People v. Payne, 8 Cal., 341; People v. Batchelder, 27 Cal.,
69.)
That he did not use more force than was necessary is established by the evidence as shown
by the preceding discussion.
Wills, on Circumstantial Evidence, says on page 291:jgc:chanrobles.com.ph
"(3) In the proof of criminal homicide the true cause of death must be clearly established;
and the possibility of accounting for the event by self-inflicted violence, accident or natural
cause, excluded; and only when it has been proven that no other hypothesis will explain all
197
the conditions of the case can it be safely and justly concluded that it has been caused by
intentional injury. But, in accordance with the principles which govern the proof of every
other element of the corpus delicti, it is not necessary that the cause of death should be
verified by direct and positive evidence; it is sufficient if it be proven by circumstantial
evidence, which produces a moral conviction in the minds of the jury, equivalent to that
which is the result of positive and direct evidence."cralaw virtua1aw library
In the People v. Bennet (49 N. Y., 144) the court said:jgc:chanrobles.com.ph
"In determining a question of fact from circumstantial evidence, there are two general rules
to be observed: (1) The hypothesis of delinquency or guilt should flow naturally from the
facts proved, and be consistent with them all. (2) The evidence must be such as to exclude,
to a moral certainty, every hypothesis but that of his guilt of the offense imputed to him; or,
in other words, the facts proved must all be consistent with and point to his guilt not only,
but they must be inconsistent with his innocence."cralaw virtua1aw library
"On an indictment for murder, the prosecutor must prove that the blows caused the death;
but, if he proves that the blows were given by dangerous weapon — were followed by
insensibility or other alarming symptoms, and soon afterward by death; this is sufficient to
impose it on the accused, to show that the death was occasioned by some other cause."
(U.S. v. Wiltberger, Fed, Cas. No. 16738)
"On trial for murder, the State’s failure to prove by what means the deceased came to his
death is fatal to its case." (Cole v. The State, 56 Ark., 50.)
"In order that a defendant may be properly convicted by circumstantial evidence, all the
circumstances proved must be consistent with each other, consistent with the hypothesis
that the accused is guilty, and, at the same time, inconsistent with the hypothesis that he is
innocent, and with every other rational hypothesis except that of guilt."cralaw virtua1aw
library
(12 Cyc., 488; U.S. v. Reyes, 3 Phil. Rep., 3; People v. Ward, 105 Cal., 335; Carlton v. The
People, 150 Ill., 181; State v. Vinson, 37 La. Ann., 792; Commonwealth v. Costley, 118 Mass.,
1; People v. Aikin, 66 Mich., 460; U.S. v. Reder, 69 Fed. Rep., 965.)
The judgment of conviction should be reversed, the defendant declared not guilty and his
discharge from custody ordered.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-35574 September 28, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VALENTINA MANANQUIL Y LAREDO, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herminio Sugay for defendant-appellant.
CUEVAS, J.:
In an amended Information 1 filed before the then Court of First Instance of Rizal,
VALENTINA MANANQUIL y LAREDO was accused of PARRICIDE allegedly committed as
follows:
That on or about the 6th day of March, 1965, in Pasay City, Philippines,
and within the jurisdiction of this Hon. Court, the abovenamed accused,
did then and there wilfully, unlawfully and feloniously, with evident
premeditation, that is, having conceived and deliberated to kill her
husband, Elias Day y Pablo, with whom she was united in lawful wedlock,
enter (sic) the NAWASA building situated at Pasay City, where said Elias
Day y Pablo was working as a security guard; and the said accused,
having in her possession a bottle containing gasoline suddenly and
without warning, poured the contents on the person of her husband,
Elias Day y Pablo, ignited the gasoline, as a result of which, said Elias Day
y Pablo suffered burns and injuries which subsequently caused his death.
Contrary to law 2 with which to clean them. Taking with her an empty bottle of Hemo, she
Tried after pleading "NOT GUILTY" upon arraignment, accused was convicted and
thereafter sentenced to reclusion perpetua to indemnify the heirs of the deceased in the
amount of P12,000.00; and to pay costs.
From the aforesaid judgment, she ventilated an appeal to the then Court of Appeals
(which referred the appeal to us considering that the penalty imposed was reclusion
perpetua, assailing her aforesaid conviction and contending that the trial court erred: 1) in
convicting her solely on the basis of the alleged extrajudicial confession; 2) in finding that
Pneumonia was a complication of the burns sustained by the victim; 3) in not finding her
not to have cause the death of the deceased; and 4) in not acquitting her at least on
ground of reasonable doubt.
The prosecution's version of the incident as summarized in the People's Brief is as follows:
198
On March 6, 1965, at about 11:00 o'clock in the evening, appellant went
to the NAWASA Building at Pasay City where her husband was then
working as a security guard. She had just purchased ten (10) centavo
worth of gasoline from the Esso Gasoline Station at Taft Avenue which
she placed in a coffee bottle (t.s.n., p. 13, January 13, 1969). She was
angry of her husband, Elias Day y Pablo, because the latter had burned
her clothing, was maintaining a mistress and had been taking all the
food from their house. Upon reaching the NAWASA Building, she
knocked at the door. Immediately, after the door was opened, Elias Day
shouted at the appellant and castigated her saying, "PUTA BUGUIAN
LAKAW GALIGAON" (t.s.n., p. 14, Id). The appellant tired of hearing the
victim, then got the bottle of gasoline and poured the contents thereof
on the face of the victim (t.s.n., p. 14, Id). Then, she got a matchbox and
set the polo shirt of the victim a flame. (Exhs. "A" and "A-1", p. 197, Rec.)
The appellant was investigated by elements of the Pasay City Police to
whom she gave a written statement (Exh. "A", p. 197, Rec.) where she
admitted having burned the victim.
Upon the other hand, the victim was taken first to the Philippine General
Hospital and then to the Trinity General Hospital at Sta. Ana, Manila,
when he died on March 10, 1965. (Exh. "C", p. 208, rec.) due to
pneumonia, lobar bilateral Burns 2 secondary. 3
Appellant's story on the other hand runs, thus:
It was before 10:00 o'clock p.m. when appellant returned from
Olongapo City. She fed her grandson and put him to bed. After filing the
tank with water, she remembered that the next day was a Sunday and
she had to go to church. Her shoes were dirty but there was no gasoline
left for a nearby gasoline station and bought ten centavos worth of
gasoline. Then she remembered that her husband needed gasoline for
his lighter so she dropped by his place of work. (p. 13, Ibid.)
Appellant saw her husband inside a bonding of the NAWASA standing
by the window. As the iron grille was open, she entered and knocked at
the wooden door. Elias opened the door, but when he saw his wife he
shouted at her. Appellant said that she had brought the gasoline which
he needed for his lighter, but Elias, who was under the influence of liquor,
cursed her thus: "PUTA BUGUIAN LAKAW GALIGAON". Elias continued
shouting and cursing even as appellant told him that she had come just
to bring the gasoline that he wanted. Appellant trembled and became
 dizzy. She was beside herself and did not know that she was sprinkling the
gasoline on her husband's face. She was tired and dizzy and had to sit
down for a while. Then she remembered her grandson who was alone in
the house so she went home leaving her husband who was walking to
and fro and not paying attention to her. (pp. 13-14, Ibid., p. 2, March 20,
1969)
She went to bed but could not sleep. She went back to the NAWASA
compound to apologize to her husband. Upon reaching the NAWASA,
however, she found that police officers were present. Her husband was
walking all around still fuming mad, and when he saw her he chased her.
A policeman pulled appellant aside and asked if she was the wife of
Elias. When she replied in the affirmative, the police officer accused her
of burning her husband. She denied the accusation. But the police took
her to the headquarters, and prepared a written statement, Exhibits A, A-
1. Appellant was made to sign said statement upon a promise that she
would be released if she signed it. Although she did not know the
contents, she signed it because of the promise. (pp. 14-16. Id.; p. 5,
March 20,1969) 4
Appellant's assigned errors boil down to two (2) main issues: (1) whether or not appellant's
extrajudicial confession was voluntarily given; and (2) whether or not the burns sustained by
the victim contributed to cause pneumonia which was the cause of the victim's death.
Right after the burning incident, appellant was picked up by the police operatives of Pasay
City. She was thereafter investigated by Sgt. Leopoldo Garcia of the Pasay City Police who
took her statement in Tagalog and in Question and Answer form which was reduced into
writing. After Sgt. Garcia was through taking her statement, she was brought to Fiscal
5 Emphasis supplied)
Paredes who asked her questions regarding the said statement and its execution and
before whom said statement was subscribed and sworn to by her. In that investigation,
appellant categorically admitted having thrown gasoline at her husband and thereafter
set him aflame as evidenced by this pertinent portion of her statement-
T Ano ang nangyari at iyong binuksan ng gasolina
ang iyong asawa na si Elias Day?
S Dahil may sala siya, at sinunog niya ang aking mga
damit, at may babae pa, at saka lahat ng aming
pagkain sa bahay ay hinahakot.
T Ng dahil dito sa mga binanggit mong ito ay ano ang
ginawa mo sa iyong asawa?
S Ako po ay nagdilim ang aking isipan at ang ginawa
ko ay naisip kong buhusan ng gasolina, kaya ang
199
aking ginawa ay bumili ako ng halagang 10 sentimos
sa Esso Gasoline Station sa Tall Avenue at inilagay ko
sa isang boti.
T Pagkatapos na ikaw ay makabili ng gasolina sa
station ng Esso sa Taft Avenue dito sa Pasay City, ay
ano ang ginawa mo?
S Ako po ay nagpunta sa kanya na
pinaggoguardiahan sa Nawasa at pagdating ko
nuon ay kumatok ako sa pintuan ng Nawasa, at nang
marinig niya ang aking katok sa pinto ay binuksan
niya ang pintuan, at pagkabukas ng pintuan ay
nakita niya ako, at nagalit siya at ako ay minura ng
puta putan Ina mo, lalakad ka ng gabi, at namumuta
raw ako, at pagkatapos na ako ay mamura ay
hinahabol pa ako ng suntok, kayat ang ginawa ko po
kinuha ko ang aking dalang bote na may gasolina at
aking ibinuhos sa kanyang katawan at aking kinuha
ang posporo at aking sinindihang at hangang
magliyab ang suot niyang polo shirt, na may guhit na
itim at puti.
T Alam mo ba na kung ano ang iyong ginawa sa
iyong asawa kanginang humigit kumulang na mag-
iika alas 11:00 ng gabi Marzo 6, 1965?
S Opo, aking sinunog ang aking asawa. (Exhs. A & A-1
She would now like her aforesaid extrajudicial confession discredited by asserting that she
did not understand its contents because she is not a Tagala aside from having reached
only the primary grades; and furthermore, that said statement was signed by her merely
upon the promise of the policemen that she will later be released.
We find appellant's aforesaid assertions a mere pretense too flimsy to be accepted as true.
For the truth is that appellant knew and understood Tagalog despite her not being a
Tagala, having stayed in Manila since 1951, continuously up to the time of the burning
incident in question for which she was investigated. During this period of almost fourteen
years, she was in daily association with Tagalogs communicating with them in Pilipino. This is
clear from her admission on cross-examination which runs thus-
Q But you can understand Tagalog because of the
length of time that you litem been living here in
Manila?
 A Yes.
Q And as a matter of fact, when you buy something
from the store, you speak Tagalog?
A Yes.
Q And when you ride in a jeep or bus, you speak
Tagalog?
A Yes.
Q And you were well understood by these Tagalog
people?
A Yes.
Q And as a matter of fact, you can understand
Tagalog?
A Yes,
Q And you can also read Tagalog?
A Yes.
Q You can read?
A Yes, but I do not litem interest to read. TSN, March
29, 1969, pp. 11-12).
All through shout the entire investigation and even at the time appellant A as before Fiscal
Paredes, before whom she subscribed and swore to the truth of an what appeared in her
statement, 6 no denunciation of any sort was made nor levelled by her against the police
investigators. Neither was there any complaint aired by her to the effect that she merely
affixed her signatures thereto because of the promise by the police that she will be
released later. We therefore find her aforesaid claim highly incredible and a mere
concoction. For why will the police still resort to such trickery when the very sworn statement
given by her proved by its contents that appellant was indeed very cooperative. In fact,
almost all the recitals and narrations appearing in the said statement were practically
repeated by her on the witness stand thus authenticating the truth and veracity of her
declarations contained therein. Moreover, We find said statement replete with details
which could not litem been possibly supplied by the police investigators who litem no
previous knowledge of, nor acquaintance with her and the victim, especially with respect
to the circumstances and incidents which preceded the fatal incident that brought about
the death of the latter. We therefore find no error in the trial court's pronouncement that
appellant's sworn statement was voluntarily given by her; that she fully understood its
contents; and that she willingly affixed her signatures thereto.
Well settled is the rule that extrajudicial confession may be regarded as conclusive proof of
guilt when taken without maltreatment or intimidation 7 and may serve as a basis of the
declarant's conviction. It is presumed to be voluntary until the contrary is proven. The
8 We are not persuaded by appellant's aforesaid ratiocination
200
burden of proof is upon the person who gave the confession. 9 That presumption has not
been overcome in the instant case.
Indeed the trial court could not be faulted for relying heavily on accused-appellant's sworn
statement in assessing her guhit since it was given shortly after the incident took place. By
then, she had yet no time to concoct any fabrication favorable to her. Shock by the
aftermath consequences of her criminal design she must litem been motivated by no other
purpose except to admit the undeniable. On the other hand, when she took the witness
stand, disclaiming any responsibility for the burning of her husband, it was already January
13, 1969 . . . more than five years after the incident and decidedly after she had the benefit
of too many consultations.
That appellant has murder in her heart and meant to do harm to her husband when she
went to the latter's place of work on that fatal night and intended an the consequences of
her nefarious act finds clearer manifestation and added support in her total indifference
and seemingly unperturbed concern over the fate that had befallen the victim . . . her
husband . . . especially at times when he needed her most. Being the wife, she must be the
closest to him and the hardest hit by the mishap if she has not authored the same nor
voluntarily participated therein. She was then reasonably expected to come to his succor
and alleviate him from his sufferings. And yet, the records do not show her having seen her
husband even once while the latter lay seriously ill at the hospital hovering between life and
death. Neither did she attend his funeral nor was she ever present during the wake while
the victim's remains lay in state. That she was under detention does not excuse nor justify
those glaring and significant omissions. For she could litem asked the court's permission for
any of the enumerated undertakings which we believe would not litem been denied. But
she did not even attempt.
Indeed, the more we scrutinize appellant's alibi and explanation, we become more
convinced of the falsity and incredibility of her assertions. For instance, her claim that her
purpose in buying gasoline at so an unholy hour of the night, past ten o clock in the
evening, solely for the purpose of cleaning her shoes which she would wear in going to
church the following Sunday, hardly recommend acceptance. That she dropped at her
husband's place of work also at the middle of the night for no other purpose except to
deliver to him gasoline for his cigarette lighter, is likewise too taxing upon one's credulity . . .
more so if we litem to consider the previous spat she had with the deceased in the morning
of that fatal day.
In her vain attempt to exculpate herself, appellant would like Us to believe that her
husband died of pneumonia because the latter drank liquor as shown by the toxicology
report indicating presence of alcohol in the victim's body. Hence, assuming she set her
husband on fire, she is not criminally liable for her husband's death.
The claim that the victim drank liquor while confined in the hospital would not suffice to
exculpate the appellant. For as testified by Dr. Reyes, pneumonia could not be caused by
taking alcohol. In fact, alcohol, according to him, unless taken in excessive dosage so as to
produce an almost comatose condition would not cause suffocation nor effect a
diminution of the oxygen content of the body. 10 In fine, as correctly pointed out by the
Hon. Solicitor General, the victim's taking of liquor was not an efficient supervening cause
of his death which took place on March 10, 1965, just four days after the burning.
The cause of death as shown by the necropsy report is pneumonia, lobar bilateral. Burns 2'
secondary. There is no question that the burns sustained by the victim as shown by The post-
mortem findings immunity about 62% of the victim's entire body. The evidence shows that
pneumonia was a mere complication of the burns sustained. While accepting pneumonia
as the immediate cause of death, the court a quo held on to state that this could not litem
resulted had not the victim suffered from second degree burns. It concluded, and rightly so,
that with pneumonia having developed, the burns became as to the cause of death,
merely contributory. We agree.
Appellant's case falls squarely under Art, 4, Par. 1 of the Revised Penal Code which
provides:
Art. 4. Criminal Liability. — Criminal liability shall be incurred.
1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended.
the essential requisites of which are: (a) that an intentional felony has been committed;
and (b) that the wrong done to the aggrieved party be the direct, natural and logical
consequence of the felony committed by the offender. 11
The reason for the rule as spelled out in the earlier cases of PP vs. Moldes, 61 Phil. 1, 3 & 4;
and PP vs. Quianzon, 62 Phil. 162, citing 13 RCL 748, 751 is as follows —
One who inflicts injury on another is deemed guilty of homicide if the
injury contributes immediately or immediately to the death of such other.
The fact that other causes contribute to the death does not relieve the
actor of responsibility. He would still be liable "even if the deceased
might litem recovered if he had taken proper care of himself, or
submitted to surgical operation, or that unskilled or improper treatment
aggravated the wound and contributed to the death, or that death was
men." caused by a surgical operation rendered necessary by the
condition of the wound. The principle on which this rule is founded is one
of universal application. It lies at the foundation of criminal jurisprudence.
It is that every person is held to contemplate and be responsible for the
natural consequences of his own acts. If a person inflicts a wound with a
deadly weapon in a manner as to put life in jeopardy, and death follows
201
as a consequence of this felonious and wicked act, it does not alter its
nature or diminish its criminality to prove that other causes cooperated in
producing the fatal result. Neglect of the wound or its unskilled and
improper treatment which are themselves consequences of the criminal
act, must in law be deemed to litem been among those which are in
contemplation of the guilty party and for which he must be responsible
The rule has its foundation on a wise and practical policy. A different
doctrine would tend to give immunity to crime and to take away from
human life a salutary and essential safeguard. Amidst the conflicting
theories of medical men and the uncertainties attendant upon the
treatment of bodily ailments and injuries it would be easy in many cases
of homicide to raise a doubt as to the immediate cause of death, and
thereby open a wide door by which persons guilty of the highest crime
might escape conviction and punishment.
In convicting the accused, the trial court imposed upon her the obligation to indemnify the
heirs of the deceased only in the amount of P12,000.00. That should now be increased to
P30,000.00.
WHEREFORE, except as thus modified, the judgment appealed from is hereby AFFIRMED
with costs against appellant.
It appearing however that appellant Valentina Mananquil is now 71 years of age, this Court
recommends her for executive clemency. For the purpose, let His Excellency, President
Ferdinand E. Marcos, be furnished with a copy of this decision thru the Hon. Minister of
Justice.
SO ORDERED.
Makasiar (Chairman), Aquino, Abad Santos and Escolin, JJ., concur.
Concepcion, Jr. and Guerrero, JJ., are on leave.
THIRD DIVISION
[G.R. No. 75369. November 26, 1990.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FERNANDO ILIGAN y JAMITO, EDMUNDO
ASIS y ILIGAN and JUAN MACANDOG (at large), Defendants, FERNANDO ILIGAN y JAMITO
and EDMUNDO ASIS y ILIGAN, Defendants-Appellants.
The Solicitor General for Plaintiff-Appellee.
Cesar R. Canonizado, for Defendants-Appellants.
SYLLABUS
1. REMEDIAL LAW; APPEAL; THROWS THE CASE OPEN FOR A COMPLETE REVIEW OF ALL
ERRORS AS MAY BE IMPUTABLE TO THE TRIAL COURT. — While the factual findings of the trial
court are generally given due respect by the appellate court, an appeal of a criminal case
throws it open for a complete review of all errors, by commission or omission, as may be
imputable to the trial court. (People v. Valerio, Jr., L-4116, February 25, 1982, 112 SCRA 208,
231) In this instance, the lower court erred in finding that the maceration of one half of the
head of the victim was also caused by Iligan for the evidence on record point to a different
conclusion. We are convinced beyond peradventure that indeed, after Quiñones, Jr. had
fallen from the bolo-hacking perpetrated by Iligan, he was run over by a vehicle. This
finding, however, does not in any way exonerate Iligan from liability for the death of
Quiñones, Jr.
2. CRIMINAL LAW; LIABILITY; REQUISITES THEREOF, PRESENT IN THE CASE AT BAR. — Under
Article 4 of the Revised Penal Code, criminal liability shall be incurred "by any person
committing a felony (delito) although the wrongful act done be different from that which
he intended." Based on the doctrine that "el que es causa de la causa es causa del mal
causado" (he who is the cause of the cause is the cause of the evil caused), (People v.
Ural, G.R. No. L-30801, March 27, 1974, 56 SCRA 138, 144) the essential requisites of Article 4
are: (a) that an intentional felony has been committed, and (b) that the wrong done to the
aggrieved party be the direct, natural and logical consequence of the felony committed
by the offender. (People v. Mananquil, L-35574, September 28, 1984, 132 SCRA 196, 207).
We hold that these requisites are present in this case.
3. ID.; ID.; PROXIMATE LEGAL CAUSE, DEFINED. — The intentional felony committed was the
hacking of the head of Quiñones, Jr. by Iligan. That it was considered as superficial by the
physician who autopsied Quiñones is beside the point. What is material is that by the
instrument used in hacking Quiñones, Jr. and the location of the wound, the assault was
meant not only to immobilize the victim but to do away with him as it was directed at a
vital and delicate part of the body: the head. (See: People v. Diana, 32 Phil. 344 [1915]).
The hacking incident happened on the national highway where vehicles are expected to
pass any moment. One such vehicle passed seconds later when Lukban and Zaldy Asis,
running scared and having barely negotiated the distance of around 200 meters, heard
shouts of people. Quiñones, Jr., weakened by the hacking blow which sent him to the
cemented highway, was run over by a vehicle. Under these circumstances, we hold that
while Iligan’s hacking of Quiñones, Jr.’s head might not have been the direct cause, it was
the proximate cause of the latter’s death. Proximate legal cause is defined as "that acting
first and producing the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close causal
202
connection with its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which first acted, under
such circumstances that the person responsible for the first event should, as an ordinarily
prudent and intelligent person, have reasonable ground to expect at the moment of his
act or default that an injury to some person might probably result therefrom. (Urbano v.
Intermediate Appellate Court, G.R. No. 72964, January 7, 1988, 157 SCRA 1 quoting Vda. De
Bataclan v. Medina, 102 Phil. 181). In other words, the sequence of events from Iligan’s
assault on him to the time Quiñones, Jr. was run over by a vehicle is, considering the very
short span of time between them, one unbroken chain of events. Having triggered such
events, Iligan cannot escape liability.
4. ID.; ALIBI; NOT CONSIDERED WHEN ACCUSED IS POSITIVELY IDENTIFIED BY WITNESSES. — We
agree with the lower court that the defense of alibi cannot turn the tide in favor of Iligan
because he was positively seen at the scene of the crime and identified by the prosecution
witnesses. (People v. Pineda, G.R. No. 72400, January 15, 1988, 157 SCRA 71).
5. ID.; AGGRAVATING CIRCUMSTANCES; TREACHERY AND EVIDENT PREMEDITATION,
WRONGLY APPRECIATED IN THE CASE AT BAR. — But we disagree with the lower court with
regards to its findings on the aggravating circumstances of treachery and evident
premeditation. Treachery has been appreciated by the lower court in view of the
suddenness of the attack on the group of Quiñones, Jr. Suddenness of such attack,
however, does not by itself show treachery. (People v. Gadiano, L-31818, July 30, 1982, 115
SCRA 559) There must be evidence that the mode of attack was consciously adopted by
the appellant to make it impossible or hard for the person attacked to defend himself.
(People v. Crisostomo, L-32243, April 15, 1988, 160 SCRA 47). In this case, the hacking of
Edmundo Asis by Iligan followed by the chasing of the trio by the group of Iligan was a
warning to the deceased and his companions of the hostile attitude of the appellants. The
group of Quiñones, Jr. was therefore placed on guard for any subsequent attacks against
them. (People v. Mercado, L-33492, March 30, 1988, 159 SCRA 455). The requisites necessary
to appreciate evident premeditation have likewise not been met in this case. Thus, the
prosecution failed to prove all of the following: (a) the time when the accused determined
to commit the crime; (b) an act manifestly indicating that the 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 him to reflect upon the consequences of his act.
(People v. Batas, G.R. Nos. 84277-78, August 2, 1989, 176 SCRA 46).
6. ID.; CONSPIRACY; NOT SUFFICIENTLY CONSTITUTED BY MERE KNOWLEDGE, ACQUIESCENCE
OR APPROVAL OF THE ACT WITHOUT COOPERATION OR AGREEMENT TO COOPERATE NOR
BY MERE PRESENCE AT THE SCENE OF THE CRIME. — Absent any qualifying circumstances,
Iligan must be held liable only for homicide. Again, contrary to the lower court’s finding,
proof beyond reasonable doubt has not been established to hold Edmundo Asis liable as
Iligan’s co-conspirator. Edmundo Asis did not take any active part in the infliction of the
wound on the head of Quiñones, Jr., which led to his running over by a vehicle and
consequent death. As earlier pointed out, the testimony that he was carrying a stone at the
scene of the crime hardly merits credibility being uncorroborated and coming from an
undeniably biased witness. Having been the companion of Iligan, Edmundo Asis must have
known of the former’s criminal intent but mere knowledge, acquiescense or approval of
the act without cooperation or agreement to cooperate, is not enough to constitute one a
party to a conspiracy. There must be intentional participation in the act with a view to the
furtherance of the common design and purpose. (People v. Izon, 104 Phil. 690 [1958]) Such
being the case, his mere presence at the scene of the crime did not make him a co-
conspirator, a co-principal or an accomplice to the assault perpetrated by Iligan. (Orobio
v. Court of Appeals, G.R. No. 57519, September 13, 1988, 165 SCRA 316) Edmundo Asis
therefore deserves exoneration.
7. ID.; HOMICIDE; PENALTY; ABSENT ANY MITIGATING CIRCUMSTANCE AND APPLYING THE
INDETERMINATE SENTENCE LAW. — There being no mitigating circumstance, the penalty
imposable on Iligan is reclusion temporal medium (Arts. 249 and 64, Revised Penal Code).
Applying the Indeterminate Sentence Law, the proper penalty is that within the range of
prision mayor as minimum and reclusion temporal medium as maximum. We find insufficient
proof to warrant the award of P256,960 for the victim’s unrealized income and therefore,
the same is disallowed.
DECISION
FERNAN, J.:
In this appeal, uncle and nephew, Fernando Iligan and Edmundo Asis, seek a reversal of
the decision of the then Court of First Instance of Camarines Norte, Branch II 1 convicting
them of the crime of murder and sentencing them to suffer the penalty of reclusion
perpetua and to indemnify the heirs of Esmeraldo Quiñones, Jr. in the amounts of P30,000
for the latter’s death and P256,960 representing the victim’s unrealized income.
On October 21, 1980, the following information for murder was filed against Fernando Iligan,
Edmundo Asis and Juan Macandog:chanrobles.com.ph : virtual law library
"That on or about 3:00 a.m., August 4, 1980, at sitio Lico II, barangay Sto. Domingo,
203
municipality of Vinzons, province of Camarines Norte, Philippines, and within the jurisdiction
of the Honorable Court, the above named accused, conspiring and mutually helping one
another, with treachery and evident premeditation, one of the accused Fernando Iligan
armed with a bolo (sinampalok) and with deliberate intent to kill, did then and there wilfully,
unlawfully and feloniously, gang up and in a sudden unexpected manner, hacked
Esmeraldo Quiñones, Jr., on his face, thus causing fatal injuries on the latter’s face which
resulted to (sic) the death of said Esmeraldo Quiñones.
"CONTRARY TO LAW."cralaw virtua1aw library
Juan Macandog was never apprehended and he remains at large. At their arraignment on
January 12, 1981 Fernando Iligan and Edmundo Asis pleaded not guilty to the crime
charged. Thereafter, the prosecution presented the following version of the commission of
the crime.chanrobles.com.ph : virtual law library
At around 2:00 o’clock in the morning of August 4, 1980, Esmeraldo Quiñones, Jr. and his
companions, Zaldy Asis and Felix Lukban, were walking home from barangay Sto. Domingo,
Vinzons, Camarines Norte after attending a barrio fiesta dance. In front of the ricemill of a
certain Almadrones, they met the accused Fernando Iligan, his nephew, Edmundo Asis,
and Juan Macandog. Edmundo Asis pushed ("winahi") them aside thereby prompting Zaldy
Asis to box him. 2 Felix Lukban quickly told the group of the accused that they had no
desire to fight. 3 Fernando Iligan, upon seeing his nephew fall, drew from his back a bolo
and hacked Zaldy Asis but missed. Terrified, the trio ran pursued by the three accused. They
ran for about half an hour, passing by the house of Quiñones, Jr. They stopped running only
upon seeing that they were no longer being chased. After resting for a short while,
Quiñones, Jr. invited the two to accompany him to his house so that he could change to his
working clothes and report for work as a bus conductor. 4
While the trio were walking towards the house of Quiñones, Jr., the three accused suddenly
emerged on the roadside and without a word, Fernando Iligan hacked Quiñones, Jr. with
his bolo hitting him on the forehead and causing him to fall down. 5 Horrified, Felix Lukban
and Zaldy Asis fled to a distance of 200 meters, but returned walking after they heard
shouts of people. Zaldy Asis specifically heard someone shout "May nadale na." 6
On the spot where Quiñones, Jr. was hacked, Zaldy Asis and Felix Lukban saw him already
dead with his head busted. 7 They helped the brother of Quiñones, Jr. in carrying him to
their house. 8
That same day, August 4, 1980, the body of Quiñones, Jr. was autopsied at the Funeraria
Belmonte in Labo, Camarines Norte by the municipal health officer, Dr. Marcelito E. Abas.
The postmortem examination report which is found at the back of the death certificate
reveals that Esmeraldo Quiñones, Jr., who was 21 years old when he died, sustained the
following injuries:jgc:chanrobles.com.ph
"1. Shock and massive cerebral hemorrhages due to multiple fracture of the entire half of
the frontal left, temporal, parietal and occipital bone of the head, with massive maceration
of the brain tissue.
"2. Other findings — Incised wound at the right eyebrow, medial aspect measuring about 4
cms. in length, 0.5 cm. in width and 0.5 cm. in depth, abrasion on the left shoulder and right
side of the neck." 9
The death certificate also indicates that Quiñones, Jr. died of "shock and massive cerebral
hemorrhages due to a vehicular accident."cralaw virtua1aw library
The defendants denied having perpetrated the crime. They alleged that they were in their
respective houses at the time the crime was committed.chanrobles law library
Accused Fernando Iligan testified that at around midnight of August 4, 1980, he left his
house to fetch his visitors at the dance hall. 10 Along the way, he met his nephew,
Edmundo Asis, whom he presumed was drunk. He invited his nephew to accompany him to
the dance hall. However, they were not able to reach their destination because Edmundo
was boxed by somebody whom he (Edmundo) sideswiped. 11 Instead, Fernando Iligan
brought his nephew home. 12 On their way, they were overtaken by Juliano Mendoza
whom Fernando Iligan invited to his house to help him cook. 13 After bringing his nephew
home, Fernando Iligan and Juliano Mendoza proceeded to Iligan’s house and arrived
there between 1:30 and 2:00 o’clock in the morning of the same day. 14
Edmundo Asis corroborated Iligan’s testimony. He testified that while they were walking in
front of the Almadrones ricemill, he sideswiped someone whom he did not recognize
because there were several persons around. He said, "Sorry, pare" but the person to whom
he addressed his apology boxed him on his left face. He fell down and Iligan helped him.
Later, Iligan accompanied him to his home in Lico II. 15 After Iligan and Juliano Mendoza
had left his house, he slept and woke up at 7:00 o’clock the following morning. 16
The defense made capital of the testimony of prosecution witness Dr. Abas to the effect
that Quiñones, Jr. died because of a vehicular accident. In ruling out said theory, however,
the lower court, in its decision of May 7, 1986, said:jgc:chanrobles.com.ph
204
"The accused, to augment their alibi, have pointed to this Court that the Certificate of
Death have shown that the victim’s death was caused by a vehicular accident. To this,
notwithstanding, the Court cannot give credit for some reasons. First, the fact of the
alleged vehicular accident has not been fully established. Second, Esmeraldo Quiñones,
Sr., (the) father of the victim, testified that Dr. Abas told him that if his son was hacked by a
bolo on the face and then run over the entire head by a vehicle’s tire, then that hacking
on the face could not be visibly seen on the head (t.s.n., pp. 16-17, October 13, 1981) Third,
Exhibit ‘2’ (the photograph of the victim taken immediately after his body had been
brought home) is a hard evidence. It will attestly (sic) show that the entire head was not
crushed by any vehicle. On the contrary, it shows that only half of the face and head, was
damaged with the wound starting on a sharp edge horizontally. There are contusions and
abrasions on the upper left shoulder and on the neck while the body downwards has none
of it, while on the right forehead there is another wound caused by a sharp instrument.
Therefore, it is simple, that if the victim was run over by a vehicle, the other half portion of his
head and downward part of his body must have been likewise seriously damaged, which
there are none." 17
The lower court also found that Iligan’s group conspired to kill anyone or all members of the
group of the victim to vindicate the boxing on the face of Edmundo Asis. It appreciated
the aggravating circumstances of evident premeditation and treachery and accordingly
convicted Iligan and Edmundo Asis of the crime of murder and imposed on them the
aforementioned penalty.
Iligan and Edmundo Asis interposed this appeal professing innocence of the crime for
which they were convicted. For the second time, they attributed Quiñones, Jr.’s death to a
vehicular accident.
No eyewitnesses were presented to prove that Quiñones, Jr. was run over by a vehicle. The
defense relies on the testimony of Dr. Abas, a prosecution witness, who swore that the
multiple fracture on the head of Quiñones, Jr. was caused by a vehicular accident 18
which opinion was earlier put in writing by the same witness in the postmortem examination.
Dr. Abas justified his conclusion by what he considered as tire marks on the victim’s left
shoulder and the right side of his neck. 19 He also testified that the incised wound located
at the victim’s right eyebrow could have been caused by a sharp bolo but it was so
superficial that it could not have caused the victim’s death. 20
Circumstantial evidence on record indeed point to the veracity of the actual occurrence
of the vehicular mishap. One such evidence is the testimony of prosecution witness Zaldy
Asis that when he helped bring home the body of Quiñones, Jr., he told the victim’s father,
Esmeraldo Quiñones, Sr. that "before Esmeraldo Quiñones (Jr.) was run over by a vehicle, he
was hacked by Fernando Iligan." 21 When asked why he mentioned an automobile, Zaldy
Asis said that he did not notice any vehicle around but he mentioned it "because his
(Quiñones, Jr.) head was busted." 22 It is therefore not farfetched to conclude that Zaldy
Asis had actual knowledge of said accident but for understandable reasons he declined to
declare it in court. Defense witness Marciano Mago, the barangay captain of Sto.
Domingo, also testified that when he went to the scene of the crime, he saw bits of the
brain of the victim scattered across the road where he also saw tire marks. 23
For its part, the prosecution, through the victim’s father, presented evidence to the effect
that Iligan authored the maceration of half of the victim’s head. Quiñones, Sr. testified that
from their house, which was about five meters away from the road, he saw Fernando Iligan
holding a "sinampalok" as he, together with Edmundo Asis and Juan Macandog, chased
someone. During the second time that he saw the three accused, he heard Iligan say,
"Dali, ayos na yan." 24 Hence, the lower court concluded that the victim’s head was
"chopped" resulting in the splattering of his brain all over the place. 25 It should be
emphasized, however, that the testimony came from a biased witness and it was
uncorroborated.
While the factual findings of the trial court are generally given due respect by the appellate
court, an appeal of a criminal case throws it open for a complete review of all errors, by
commission or omission, as may be imputable to the trial court. 26 In this instance, the lower
court erred in finding that the maceration of one half of the head of the victim was also
caused by Iligan for the evidence on record point to a different conclusion. We are
convinced beyond peradventure that indeed, after Quiñones, Jr. had fallen from the bolo-
hacking perpetrated by Iligan, he was run over by a vehicle. This finding, however, does not
in any way exonerate Iligan from liability for the death of Quiñones, Jr.chanrobles.com :
virtual law library
Under Article 4 of the Revised Penal Code, criminal liability shall be incurred "by any person
committing a felony (delito) although the wrongful act done be different from that which
he intended." Based on the doctrine that "el que es causa de la causa es causa del mal
causado" (he who is the cause of the cause is the cause of the evil caused), 27 the
essential requisites of Article 4 are: (a) that an intentional felony has been committed, and
(b) that the wrong done to the aggrieved party be the direct, natural and logical
consequence of the felony committed by the offender. 28 We hold that these requisites are
205
present in this case.
The intentional felony committed was the hacking of the head of Quiñones, Jr. by Iligan.
That it was considered as superficial by the physician who autopsied Quiñones is beside the
point. What is material is that by the instrument used in hacking Quiñones, Jr. and the
location of the wound, the assault was meant not only to immobilize the victim but to do
away with him as it was directed at a vital and delicate part of the body: the head. 29
The hacking incident happened on the national highway 30 where vehicles are expected
to pass any moment. One such vehicle passed seconds later when Lukban and Zaldy Asis,
running scared and having barely negotiated the distance of around 200 meters, heard
shouts of people. Quiñones, Jr., weakened by the hacking blow which sent him to the
cemented highway, was run over by a vehicle.
Under these circumstances, we hold that while Iligan’s hacking of Quiñones, Jr.’s head
might not have been the direct cause, it was the proximate cause of the latter’s death.
Proximate legal cause is defined as "that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous
chain of events, each having a close causal connection with its immediate predecessor,
the final event in the chain immediately effecting the injury as a natural and probable result
of the cause which first acted, under such circumstances that the person responsible for
the first event should, as an ordinarily prudent and intelligent person, have reasonable
ground to expect at the moment of his act or default that an injury to some person might
probably result therefrom." 31 In other words, the sequence of events from Iligan’s assault
on him to the time Quiñones, Jr. was run over by a vehicle is, considering the very short
span of time between them, one unbroken chain of events. Having triggered such events,
Iligan cannot escape liability.chanrobles law library
We agree with the lower court that the defense of alibi cannot turn the tide in favor of
Iligan because he was positively seen at the scene of the crime and identified by the
prosecution witnesses. 32
But we disagree with the lower court with regards to its findings on the aggravating
circumstances of treachery and evident premeditation. Treachery has been appreciated
by the lower court in view of the suddenness of the attack on the group of Quiñones, Jr.
Suddenness of such attack, however, does not by itself show treachery. 33 There must be
evidence that the mode of attack was consciously adopted by the appellant to make it
impossible or hard for the person attacked to defend himself. 34 In this case, the hacking of
Edmundo Asis by Iligan followed by the chasing of the trio by the group of Iligan was a
warning to the deceased and his companions of the hostile attitude of the appellants. The
group of Quiñones, Jr. was therefore placed on guard for any subsequent attacks against
them. 35
The requisites necessary to appreciate evident premeditation have likewise not been met
in this case. Thus, the prosecution failed to prove all of the following: (a) the time when the
accused determined to commit the crime; (b) an act manifestly indicating that the
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 him to reflect
upon the consequences of his act. 36
Absent any qualifying circumstances, Iligan must be held liable only for homicide. Again,
contrary to the lower court’s finding, proof beyond reasonable doubt has not been
established to hold Edmundo Asis liable as Iligan’s co-conspirator. Edmundo Asis did not
take any active part in the infliction of the wound on the head of Quiñones, Jr., which led
to his running over by a vehicle and consequent death. As earlier pointed out, the
testimony that he was carrying a stone at the scene of the crime hardly merits credibility
being uncorroborated and coming from an undeniably biased witness. Having been the
companion of Iligan, Edmundo Asis must have known of the former’s criminal intent but
mere knowledge, acquiescense or approval of the act without cooperation or agreement
to cooperate, is not enough to constitute one a party to a conspiracy. There must be
intentional participation in the act with a view to the furtherance of the common design
and purpose. 37 Such being the case, his mere presence at the scene of the crime did not
make him a co-conspirator, a co-principal or an accomplice to the assault perpetrated by
Iligan. 38 Edmundo Asis therefore deserves exoneration.
There being no mitigating circumstance, the penalty imposable on Iligan is reclusion
temporal medium (Arts. 249 and 64, Revised Penal Code). Applying the Indeterminate
Sentence Law, the proper penalty is that within the range of prision mayor as minimum and
reclusion temporal medium as maximum. We find insufficient proof to warrant the award of
P256,960 for the victim’s unrealized income and therefore, the same is
disallowed.cralawnad
WHEREFORE, appellant Fernando Iligan y Jamito is hereby convicted of the crime of
homicide for which he is imposed the indeterminate penalty of six (6) years and one (1) day
of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of
reclusion temporal medium as maximum and he shall indemnify the heirs of Esmeraldo
206
Quiñones, Jr. in the amount of fifty thousand pesos (P50,000). Appellant Edmundo Asis is
hereby acquitted of the crime charged against him. Costs against appellant Iligan.
SO ORDERED.
Gutierrez, Jr and Bidin, JJ., concur.
Feliciano, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 123485 August 31, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLUSAPE SABALONES alias "Roling," ARTEMIO TIMOTEO BERONGA, TEODULO ALEGARBES
and EUFEMIO CABANERO, accused, ROLUSAPE SABALONES alias "Roling" and ARTEMIO
TIMOTEO BERONGA, accused-appellants.
PANGANIBAN, J.:
Factual findings of trial courts which are affirmed by the Court of Appeals are, as a general
rule, binding and conclusive upon the Supreme Court. Alibi, on the other hand, cannot
prevail over positive identification by credible witnesses. Furthermore, alleged violations of
constitutional rights during custodial investigation are relevant only when the conviction of
the accused by the trial court is based on the evidence obtained during such investigation.
The Case
These are the principles relied upon by the Court in resolving this appeal from the Court of
Appeals (CA)1 Decision 2dated September 28, 1995, convicting Rolusape Sabalones and
Timoteo Beronga of murder and frustrated murder. The convictions arose from a shooting
incident on June 1, 1985 in Talisay, Cebu, which resulted in the killing of two persons and the
wounding of three others, who were all riding in two vehicles which were allegedly
ambushed by appellants.
After conducting a preliminary investigation, Second Assistant Provincial Prosecutor Juanito
M. Gabiana Sr. filed before the Regional Trial Court (RTC) of Cebu City, Branch 7, 3 five
amended Informations charging four "John Does," who were later identified as Rolusape
Sabalones, Artemio Timoteo Beronga, Teodulo Alegarbes and Eufemio Cabanero, with two
counts of murder and three counts of frustrated murder. The Informations are quoted
hereunder.
1) Crim Case No. CBU-9257 for murder:
That on the 1st day of June, 1985, at 11:45 o'clock in the evening, more
or less, at Mansueto Village, Bulacao, Municipality of Talisay, Province of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping
one another, armed with high-powered firearms, with intent to kill and
treachery, did then and there wilfully, unlawfully and feloniously attack,
assault and shoot GLENN TIEMPO, who was riding [i]n a jeep and who
gave no provocation, thereby inflicting upon the latter several gunshot
wounds, thereby causing his instantaneous death.
CONTRARY TO Article 248 of the Revised Penal Code.
2) Criminal Case No. 9258 for murder:
That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or
less at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and
mutually helping one another, armed with high-powered firearms, with
intent to kill and treachery, did [then] and there wilfully, unlawfully and
feloniously attack, assault and shoot ALFREDO NARDO, who was riding
on a jeep and who gave no provocation, thereby inflicting upon the
latter several gunshot wounds, thereby causing his instantaneous death.
CONTRARY TO Article 248 of the Revised Penal Code.
3) Crim Case No. CBU-9259 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or
less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and
mutually helping one another, armed with high-powered firearms, with
intent to kill and treachery, did and there wilfully, unlawfully and
feloniously attack, assault and shoot REY BOLO who was riding in a car
and who gave no provocation, thereby inflicting upon the latter the
following injuries to wit:
laceration, mouth due to gunshot wound, gunshot wound (L) shoulder
penetrating (L) chest; gunshot wound (R) hand (palm); open fracture (L)
clavicle (L) scapula; contusion (L) lung;
207
thereby performing all the acts of execution which would produce the
crime of [m]urder as a consequence but which, nevertheless, did not
produce it by reason of causes independent of the will of the
perpetrator, i.e. the timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
4) Criminal Case No. 9260 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or
less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and
mutually helping one another, armed with high-powered firearms, with
intent to kill and treachery, did then and there wilfully, unlawfully and
feloniously attack, assault and shoot ROGELIO PRESORES, who was riding
in a car and who gave no provocation, thereby inflicting upon the latter
the following injuries, to wit:
gunshot wound, thru and thru right chest
thereby performing all the acts of execution which would produce the
crime of [m]urder as a consequence but which, nevertheless, did not
produce it by reason of causes independent of the will of the
perpetrator, i.e. the timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
5) Criminal Case No. 9261 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or
less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and
mutually helping one another, armed with high-powered firearms, with
intent to kill and treachery, did then and there wilfully, unlawfully and
feloniously attack, assault and shoot NELSON TIEMPO, who was riding in a
car and who gave no provocation, thereby inflicting upon the latter the
following injuries, to wit:
Gunshot wound neck penetrating wound perforating trachea (cricoid)
thereby performing all the acts of execution which would produce the
crime of [m]urder as a consequence but which nevertheless, did not
produce it by reason of causes independent of the will of the
perpetrator, i.e. the timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
Of the four indictees in the five Informations, Teodulo Alegarbes and Artemio Timoteo
Beronga were the first to be arraigned. Upon the arrest of the two, the Informations were
amended by the public prosecutor, with the conformity of the defense counsel, by
substituting the names of the two accused for the "John Does" appearing in the original
Informations. When arraigned, said accused, assisted by their respective lawyers, pleaded
not guilty to the five Informations.
Alegarbes died in the course of trial; thus, the cases against him were dismissed. Accused
Cabanero remained at large. Sabalones, on the other hand, was eventually arrested.
Subsequently, he jumped bail but was recaptured in 1988 and thereafter pleaded not
guilty during his arraignment.
The cases against Sabalones and Beronga were jointly tried. Thereafter, the lower court
found them guilty beyond reasonable doubt of the crimes charged. The RTC disposed as
follows:
WHEREFORE, premises above-set forth, the Court finds accused
ROLUSAPE SABALONES and (ARTEMIO) TIMOTEO BERONGA, [g]uilty
beyond reasonable doubt, as principals:
In Crim. Case No. CBU-9257, for MURDER, defined and penalized in Art.
248 of the Revised Penal Code, hereby sentences each said accused to
suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne
(1) day, as minimum, to [s]eventeen (17) years, [f]our (4) months and
[o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to indemnify the
heirs of deceased, Glenn Tiempo, the sum of P50,000.00;
In Crim. Case No. CBU-9258, for MURDER, defined and penalized in Art.
248 of the Revised Penal Code, hereby sentences each said accused to
suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne
(1) day, as minimum, to [s]eventeen (17) years, [f]our (4) months and
[o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to indemnify the
heirs of deceased, Alfredo Nardo, the sum of P50,000.00;
In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, defined and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code,
hereby sentences each said accused to suffer the penalty of [e]ight (8)
years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight
(8) months of [re]clusion [t]emporal, as maximum, to indemnify the
victim, Rey Bolo, the sum of P20,000.00;
In Crim. Case No. CBU-9260, for FRUSTRATED MURDER, defined and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code,
hereby sentences each said accused to suffer the penalty of [e]ight (8)
years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight
208
months of [r]eclusion [t]emporal, as maximum, to indemnify the victim,
Rogelio Presores, the sum of P20,000.00;
In Crim. Case No. CBU-9261, for FRUSTRATED MURDER, defined and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code,
hereby sentences each said accused to suffer the penalty of [e]ight (8)
years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight
(8) months of [r]eclusion [t]emporal, as maximum, to indemnify the
victim, Nelson Tiempo, the sum of P20,000.00; and
To pay the costs in all instances. The period of their preventive
imprisonment shall be credited to each accused in full.
SO ORDERED. 4
Appellants filed a notice of appeal to the Court of Appeals. Thereafter, the CA affirmed
their conviction but sentenced them to reclusion perpetua for the murders they were found
guilty of. Accordingly, the appellate court, without entering judgment, certified the case to
the Supreme Court in accordance with Section 13, Rule 124 of the Rules of Court. The
dispositive portion of the CA Decision reads:
WHEREFORE, the Decision of the trial court convicting accused-
appellants Rolusa[p]e Sabalones and Artemio Timoteo Beronga for
murder in Crim. Cases Nos. CBU-9257 and CBU-9258, and [f]rustrated
[m]urder in Crim. Cases Nos. CBU-9259, CBU-9260, and CBU-9261 is
hereby AFFIRMED; however, the penalties in the [f]rustrated [m]urder and
[m]urder cases are hereby MODIFIED, such that both accused-
appellants are each sentenced to imprisonment of TEN (10) YEARS
of [p]rision [m]ayormedium as minimum to SEVENTEEN (17) YEARS and
FOUR (4) MONTHS of [r]eclusion [t]emporalmedium as maximum in each
of the three [f]rustrated [m]urder cases (Crim. Cases Nos. CBU-9259, CBU-
9260 and CBU-9261); and are each sentenced to [r]eclusion
[p]erpetua in each of the two [m]urder cases (Crim. Cases Nos. CBU-
9257 and CBU-9258). The indemnity to the victim in each [f]rustrated
[m]urder case shall remain. In conformity with Rule 124, Section 13 of the
Rules of Court, however, this Court refrains from entering judgment, and
hereby certifies the case and orders that the entire record hereof be
elevated to the Supreme Court for review. 5
After the Court of Appeals certified the case to this Court, we required appellants to file
supplemental briefs. Appellants failed to comply within the prescribed period and were
deemed to have waived their right to do so. 6Thus, in resolving this case, this Court will
address primarily the arguments raised by the appellants in their Brief before the Court of
Appeals, which assailed the RTC Decision.
 The Facts
Version of the Prosecution
The solicitor general quoted the following factual findings of the trial court:
7 to the residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14, 1987)
Edwin Santos, a resident of Mambaling, Cebu City stated that on June 1,
1985 at 6:00 o'clock in the evening, he was at the residence of Inday
Presores, sister of Rogelio Presores, located at Rizal Ave., Cebu City to
attend a wedding. He stayed until 9:00 o'clock in the evening and
proceeded to the house of Maj. Tiempo at Basak, Mambaling, Cebu City
where a small gathering was also taking place. (pp. 3-6, tsn, April 7, 1987)
Arriving thereat, he saw Nelson and Glenn Tiempo as well as Rogelio
Presores, Rogelio Oliveros, Junior Villoria, Rey Bolo and Alfredo Nardo. (p.
7, ibid.)
At about 11:00 o'clock in the evening, Stephen Lim, who was also at the
party, called their group and requested them to push his car. When the
engine started, the former asked them to drive his car home. (pp. 7-
11, ibid.)
Together with Nelson Tiempo, who was at the wheel, Rogelio Presores,
Rogelio Oliveros and Junior Villoria, they drove to the residence of
Stephen Lim at Mansueto Compound, Bulacao, Talisay, Cebu. (p.
12, ibid.)
Glenn Tiempo, Rey Bolo and Alfredo Nardo also went with them riding in
an owner-type jeep, driven by the latter, in order to bring back the
group [as] soon as the car of Mr. Lim was parked in his home. (p.
21, ibid.)
The two vehicles traveled in convoy with the jeep 3 to 4 meters ahead of
the car. When they arrived at the gate of the house of Stephen Lim, they
were met with a sudden burst of gunfire. He looked at the direction
where the gunfire came, and saw [the] persons [who] fired at the jeep.
He identified accused, Teodulo Alegarbes, Rolusape Sabalones and
Timoteo Beronga as the persons who fired at the vehicle. Except for
Teodulo Alegarbes, who was naked from [the] waist up, the gunmen
wore clothes. (pp. 21-23; 13-16; 33, ibid.)
After firing at the jeep, the assailants shot the ear they were riding[,]
hitting Nelson Tiempo on the throat and Rogelio Presores on the breast.
Despite the injury he sustained, Nelson Tiempo was able to maneuver the
car back to their residence. (pp. 17-19, ibid.)
He immediately informed Maj. Tiempo about the incident and the lat[t]er
brought the victims to the Cebu Doctor's Hospital. (p. 20, ibid.)
209
Rogelio Presores corroborated in substance the testimony of Edwin
Santos, being one of those who were in the car driven by Nelson Tiempo
He further testified that when the jeep driven by Alfredo Nardo with Rey
Bolo and Glenn Tiempo as passengers arrived at the front gate of Lim's
residence and while their car was 3 meters from the rear end of the jeep,
there was a volley of gunfire. He glanced at the direction of the gunfire
and saw the jeep being fired at by four persons, who were standing
behind a concrete wall, 42 inches in height, and armed with long
firearms. Thenceforth, he saw Alfredo Nardo, Glenn Tiempo and Rey Bolo
f[a]ll to the ground. (pp. 6-7, ibid.)
He recognized accused, Rolusape Sabalones, as one of those who fired
at the jeep. He also identified in Court accused, Teodulo Alegarbes,
Timoteo Beronga and another person, whom he recognized only
through his facial appearance. (pp. 7-8, ibid.)
When the shots were directed [at] their car[,] they were able to bend
their heads low. When the firing stopped, he directed Nelson Tiempo to
back out from the place. As the latter was maneuvering the car, the
shooting continued and he was hit in the breast while Nelson Tiempo, in
the neck, and the windshield of the vehicle was shattered. (p. 10, ibid.)
Arriving at the house of Maj. Tiempo, they were brought to Cebu
Doctor's Hospital. He and Nelson Tiempo were operated on. He had
incurred hospital expenses in the sum of P5,412.69, (Exh. "I", "K"). (pp. 11-
12, ibid.)
Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC Crime Laboratory,
Regional Unit 7 stationed at Camp Sotero Cabahug, Cebu City
remembered having performed a post-mortem examination on the
dead body of Glenn Tiempo on June 2, 1985 at the Cosmopolitan
Funeral Homes, Cebu City. (p. 7, tsn, Nov. 11, 1987)
He issued the necessary Death Certificate, (Exh. "D") and Necropsy
Report, (Exh. "F") and indicated therein that the victim's cause of death
was "[c]ardio respiratory arrest due to [s]hock and [h]emorrhage
[s]econdary to [g]unshot wounds to the trunk." (p. 8, ibid.)
The victim sustained gunshot wounds in the right chest and left lumbar
area. (pp. 10-11, ibid.)
He explained that in gunshot wound no. 1, the wound entrance[,] which
[was] characterized by invaginated edges and contusion collar[,] was
located in the right chest and the bullet went up to the left clavicle
hitting a bone which incompletely fractured it causing the navigation of
the bullet to the left and to the anterior side of the body. He recovered a
slug, (Exh. "G") below the muscles of the left clavicle. (p. 21, ibid.)
Based on the trajectory of the bullet, the assailant could have been [o]n
the right side of the victim or in front of the victim but [o]n a lower level
than the latter.
In both gunshot wounds, he did not find any powder burns which would
indicate that the muzzle of the gun was beyond a distance of 12 inches
from the target. (p. 15, ibid.)
At the time he conducted the autopsy, he noted that rigor mortis in its
early stage had already set in which denote[s] that death had occurred
5 to 6 hours earlier. (pp. 34-5, ibid.)
Maj. Juan Tiempo, father of the victims, Glenn and Nelson Tiempo,
testified that when he learned about the incident in question, he
immediately summoned military soldiers and together they proceeded
to the scene. (pp. 4-6, tsn, Nov. 12, 1988)
Arriving thereat, he saw the lifeless body of his son, Glenn. He
immediately carried him in his arms and rushed him to the hospital but
the victim was pronounced Dead on Arrival. (pp. 6-7, ibid.)
They buried his son, who was then barely 14 years old, at Cebu Memorial
Park and had incurred funeral expenses (Exhs. "K", "L", "O"). (pp. 7-8, ibid.)
His other son, Nelson, then 21 years old and a graduate of [m]edical
[t]echology, was admitted at the Cebu Doctor's Hospital for gunshot
wound in the neck. The latter survived but could hardly talk as a result of
the injuries he sustained. He had incurred medical and hospitalization
expenses in the sum of P21,594.22, (Exh. "H"), (pp. 8-10, ibid.)
He had also incurred expenses in connection with the hospitalization of
the injured victims, Rogelio Presores and Rey Bolo in the amount[s] of
P5,412.69, (exh. "I") and P9,431.10, (Exh. "J"), respectively. (p. 11, ibid.)
He further stated that he [was] familiar the accused, Roling Sabalones,
because the latter had a criminal record in their office in connection
with the kidnapping of a certain Zabate and Macaraya. (p. 16, ibid.)
xxx xxx xxx
Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the PC/INP, Cebu
Metrodiscom, had conducted an autopsy on the dead body of Alfredo
Nardo, who sustained two (2) gunshot wounds in the lower lip and left
intraclavicular region, upon the request of the [c]hief of the Homicide
Section of Cebu Metrodiscom. He issued the victim's Necropsy Report,
210
(Exh. "F:") and Death Certificate, (Exh. "G"). (pp. 5-8, tsn, Dec. 4, 1987; pp.
4-6, tsn, Nov. 29, 1988)
He stated that the wound of entrance in gunshot wound no. 1 was
located in the lower lip, more or less[,] on the left side making an exit in
the left mandibular region. (pp. 9-11, tsn, Dec. 4, 1987; pp. 6-8, tsn, Nov.
29, 1988)
In gunshot wound no. 2, the wound of entrance was in the left
intraclavicular region exiting at the back as reflected in the sketch, (Exh.
"F-2"). This wound was fatal and [could] almost cause an instantaneous
death considering that the bullet penetrated the thoracic cavity,
lacerating the lungs and perforating the heart before making an exit.
(pp. 11-13, tsn, Dec. 4, 1987; pp. 13-15, tsn, Nov. 29, 1988)
He found no tattooing around the wound of entrance in both gunshot
wounds. (pp. 8-9, tsn, Nov. 29, 1988)
He prepared and issued th[e] Necropsy Report, (Exh. "F") and Death
Certificate, (Exh. "G") of Alfredo Nardo who was identified to him by the
latter's daughter, Anita Nardo. (pp. 26-27, ibid.)
Rey Bolo, one of the victims, testified that when the jeep he was riding
[in] together with Glenn Tiempo and Alfredo Nardo, reached the gate of
the residence of Stephen Lim, they were suddenly fired upon. (pp. 5-8,
tsn, March 6, 1989)
He was hit in the right palm and left cheek. He jumped out of the vehicle
and ran towards the car which was behind them but he was again shot
at [,] [and hit] in the left scapular region. He was still able to reach the
road despite the injuries he sustained and tried to ask help from the
people who were in the vicinity but nobody dared to help him, [they]
simply disappeared from the scene, instead: (pp. 8-9, ibid.)
He took a passenger jeepney to the city and had himself treated at the
Cebu Doctor's Hospital, and incurred medical expenses in the sum of
P9,000.00. (p. 9, ibid.)
He was issued a Medical Certificate, (Exh. "N") by his attending physician.
Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled having attended
[to] the victims, Nelson Tiempo, Rey Bolo and Rogelio Presores at the
Cebu Doctor's Hospital on June 2, 1985. (pp. 7-8, 11, 14, tsn, May 30,
1989)
Nelson Tiempo sustained gunshot wound[s] in the neck and in the right
chest but the bullet did not penetrate the chest cavity but only the left
axilla. He was not able to recover any slugs because the same
 disintegrated while the other was thru and thru. The wound could have
proved fatal but the victim miraculously survived. As a consequence of
the injury he sustained, Nelson Tiempo permanently lost his voice
because his trachea was shattered. His only chance of recovery is by
coaching and speech therapy. He issued his Medical Certificate. (Exh.
"O"). (pp. 8-11, ibid.)
With regard to the patient, Rey Bolo, the latter suffered multiple gunshot
wounds in the left shoulder penetrating the chest and fracturing the 2nd,
3rd, and 4th ribs in the process, in the right hand fracturing the proximal
right thumb and in the mouth lacerating its soft tissues, per Medical
Certificate, (Exh. "N") which he issued. (pp. 11-16, ibid.)
Based on the trajectory of the bullet, the gunman could have been in
front of the victim, when gunshot would no. 1 was inflicted. (p. 30, ibid.)
With respect to the patient, Rogelio Presores, the latter suffered [a]
gunshot wound in the chest with the wound of entrance in the right
anterior chest exiting at the back which was slightly lower than the
wound of entrance. He issued the victim's Medical Certificate, (Exh. "M").
(pp. 34-35, ibid.)
Based on the location of the wound, the gunman could have been in
front of the victim but [o]n a slightly higher elevation than the latter. (pp.
35-36, ibid.) 8
Version of the Defense
Appellants interposed denial and alibi. Their version of the facts is summarized by the trial
court9 thus:
. . . Timoteo Beronga, a cristo or bet caller in the cockpit, testified that in
the afternoon of June 1, 1985, he was in the Talisay Sports Complex
located at Tabunok, Talisay, Cebu to attend a cock-derby.
At about 7:00 o'clock in the evening, he was fetched by his wife and
they left taking a taxicab going to their residence in Lapulapu City. After
passing by the market place, they took a tricycle and arrived home at
8:00 o'clock in the evening.
After taking his supper with his family, he went home to sleep at 10:30 in
the evening. The following morning, after preparing breakfast, he went
back to sleep until 11:00 in the morning.
On February 24, 1987, while he was playing mahjong at the corner of R.R.
Landon and D. Jakosalem Sts., Cebu City, complainant, Maj. Juan
Tiempo with some companions, arrived and after knowing that he [was]
211
"Timmy," [which was] his nickname, the former immediately held him by
the neck.
He ran away but the latter chased him and kicked the door of the house
where he hid. He was able to escape through the back door and took
refuge in Mandaue at the residence of Nito Seno, a driver of Gen. Emilio
Narcissi. (Tsn-Abangan, pp. 4-17, October 19, 1989)
On February 27, 1987, upon the advi[c]e of his friend, they approached
Gen. Narcissi and informed him of the incident. The latter brought him to
the Provincial Command Headquarters in Lahug, Cebu City to confront
Maj. Juan Tiempo.
After several days, he was brought by Maj. Tiempo to the PC
Headquarter[s] in Jones Ave., Cebu City where he was provided with a
lawyer to defend him but he was instructed that he should assent to
whatever his lawyer would ask of him.
He was introduced to Atty. Marcelo Guinto, his lawyer, who made him
sign an Affidavit, (Exh. "U") the contents of which, co[u]ched in the
dialect, were read to him.
He also testified that before he was detained at the CPDRC,
complainant brought him inside the shop of a certain Den Ong, where
he was again mauled after he denied having any knowledge of the
whereabouts of Roling Sabalones and the carbine.
At the instance of Col. Medija, he was physically examined at the
Southern Islands Hospital, Cebu City and was issued a [M]edical
Certificate. (Tsn-Formentera, pp. 3-36, Jan. 18, 1990).
Justiniano Cuizon, [a]ccount [o]fficer of the Visayan Electric Company
(VECO) South Extension Office, who is in charge of the billing,
disconnection and reconnection of electric current, testified that based
on the entries in their logbook, (Exh. "3") made by their checker, Remigio
Villaver, the electrical supply at the Mansueto Compound, Bulacao,
Talisay, Cebu, particularly the Mansueto Homeowners covered by
Account No. 465-293000-0, (Exh. "4-B") was disconnected on January 10,
1985, (Exh. "3-A") for non-payment of electric bills from March 1984 to
January 1985 and was reconnected only on June 17, 1985 (Exh. "4", "4-
A"). (Tsn-Abangan, pp. 22-27, Jan. 31, 1990).
Remigio Villaver, a checker of VECO, whose area of responsibility
cover[ed] the towns of Talisay and San Fernando, Cebu had kept the
record of disconnection of electrical supply of Mansueto Subdivision in
Bulacao, Talisay, Cebu and the same showed that on January 10, 1985,
(Exh. "3-A"), a service order was issued by their office to the Mansueto
Homeowners for the permanent disconnection of their electric lights due
to non-payment of their electric bills from March 1984 until January 1985.
The actual disconnection took place on December 29, 1984.
Witness Fredo Canete made efforts to corroborate their testimony. (Tsn-
Formentera, pp. 3-5, Apr. 20, 1990).
Vicente Cabanero, a resident of Mansueto Compound in Talisay, Cebu
since 1957 until the present, remembered that on June 1, 1985, between
10:00 o'clock and 11:00 o'clock in the evening, he heard a burst of
gunfire about 15 to 20 armslength [sic] from his residence.
He did not bother to verify because he was scared since the whole
place was in total darkness. (Tsn-Abangan, pp. 18-23, Feb. 22, 1990).
Marilyn Boc, another witness for the accused, stated that on the date
and time of the incident in question, while she was at the wake of Junior
Sabalones, younger brother of Roling Sabalones, who died on May 26,
1985, a sudden burst of gunfire occurred more or less 60 meters away.
Frightened, she went inside a room to hide and saw accused, Roling
Sabalones, sound asleep.
She came to know accused, Timoteo Beronga, only during one of the
hearings of this case and during the entire period that the body of the
late Junior Sabalones [lay] in state at his residence, she never saw said
accused.
She was requested to testify in this case by Thelma Beronga, wife of
Timoteo Beronga. (Tsn-Abangan, pp. 9-13, February 28, 1990).
Dr. Daniel Medina, while then the [r]esident [p]hysician of Southern
Islands Hospital, Cebu City had treated the patient, Timoteo Beronga on
March 18, 1987.
Upon examination, he found out that the patient sustained linear
abrasion, linear laceration and hematoma in the different parts of the
body. Except for the linear laceration which he believed to have been
inflicted two or three days prior to [the] date of examination, all the other
injuries were already healed indicating that the same were inflicted 10 to
12 days earlier.
He issued the corresponding Medical Certificate (Exh. "2") to the patient.
(Tsn-Abangan, pp. 9-13, May 21, 1990).
Atty. Jesus Pono, counsel for accused Beronga, mounted the witness
stand and averred that he [was] a resident of Mansueto Compound,
Bulacao, Talisay, Cebu. As shown in the pictures, (Exhs. "3", "4" & "5" with
212
submarkings) his house is enclosed by a concrete fence about 5 feet 6
inches tall. It is situated 6 meters from the residence of accused, Roling
Sabalones, which was then being rented by Stephen Lim. Outside the
fence [are] shrubs and at the left side is a lamp post provided with 200
watts fluorescent bulb.
On June 1, 1985 at about 7:00 o'clock in the evening, he saw Roling
Sabalones, whom he personally [knew] because they used to be
neighbors in Talisay, Cebu, at the wake of his brother, Federico
Sabalones, Jr. or Junior Sabalones, as mentioned repeatedly hereabout.
They even had a talk and he noticed accused to be physically
indisposed being gravely affected by the loss of his only brother, who
met a violent death in the hands of an unknown hitman on May 26,1985.
He went home after he saw accused [lie] down on a bamboo bench to
rest.
At about 12:00 o'clock midnight, he was awakened by a rapid burst of
gunfire which emanated near his house. He did not attempt to go down
or look outside. He [was] in no position to tell whether or not the street
light was lighted.
When he verified the following morning, he noticed bloodstains on the
ground as well as inside the jeep which was parked 2 to 3 meters from his
fence and 50 to 70 meters from the house where Junior Sabalones [lay]
in state. He observed that the jeep was riddled with bullets and its
windshield shattered. (Tsn-Abangan, pp. 3-16, June 6, 1990).
He admitted that he used to be a counsel of accused, Roling Sabalones,
in several cases, among which involved the death of a certain Garces
and Macaraya, which cases were however, dismissed by the Office of
the Provincial Fiscal of Cebu. (Tsn-Tumarao, pp. 2-3, June 13, 1990).
Doroteo Ejares, a relative of accused, testified that when he attended
the wake of Junior Sabalones on June 1, 1985 at 8:00 o'clock in the
evening, he saw accused lying on a bamboo bench in the yard of the
house of the deceased.
At past 10:00 o'clock in the evening, accused excused himself as he was
not feeling well and entered a room to rest while he remained by the
door and slept.
At almost 12:00 o'clock midnight, he was awakened by a burst of gunfire
which took place more or less 20 meters away and saw the people
scamper[ing] for safety. He hid inside the room where accused was
sleeping and peeped thru the door. Not long after, Marilyn Boc entered
and in a low voice talked about the incident.
They decided to wake up the accused to inform him of what was
happening, but the latter merely opened his eyes and realizing that
accused was too weak, they allowed him to go back to sleep.
When he went home at past 5:00 o'clock in the morning of June 2, 1985,
he saw a jeep outside of the compound. He did not bother to
investigate or inquire about the incident as he was in a hurry to go home
and prepare for the burial of Junior Sabalones.
He was requested to testify in this case by his aunt and mother of
accused Rolusape Sabalones. (Tsn-Tumarao, pp. 10-15, June 13, 1990).
Russo Sabalones, uncle of accused, Sabalones, averred that the latter
was once, one of his undercover agents while he was then the [c]hief of
the Intelligence Service of the PC from 1966 until 1968.
As part of their intelligence tradition, an undercover agent is not allowed
to carry his real name. In the case of his nephew and accused, Rolusape
Sabalones, the latter chose the name "Paciano Laput" which name was
recorded in their code of names.
When he retired in 1968, the accused ceased to be an agent and . . .
likewise ceased to have the authority to use the name Paciano Laput.
(Tsn-Abangan, p. 12, July 23, 1990).
Alfonso Allere, a distant relative of the accused, remembered having
received a call from Roling Sabalones, one morning after the burial of
the latter's brother, asking for his advise because of the threats [to] his life
which he received thru telephone from the group of Nabing Velez and
the group of the military.
After he had advised accused to lie low, he had not heard of him, since
then.
Godofredo Mainegro of the Public Assistance and Complaint Action
Office of the Regional Unified Command 7, received a complaint from
one Inocencia Sabalones on March 13, 1986.
He recorded the complaint in their Complaint Sheet, (Exh. "6") and let
complainant affix her signature.
After the document was subscribed and sworn to before him, (Exh. "6-
C"), he indorsed it to their [c]ommanding [o]fficer, Apolinario Castano.
(Tsn-Formentera, pp. 3-10, July 24, 1990).
Ret. Col. Apolinario Castano, recalled that while he was then with the
Regional Unified Command 7, his niece, Racquel Sabalones together
213
with her husband Roling Sabalones, came to him for advi[c]e because
the latter was afraid of his life brought about by the rampant killings of
which his brother and the son of Maj. Tiempo were victims.
Considering that accused's problem matter, they approached Gen.
Ecarma, the then [c]ommander of the PC/INP, Recom 7, and the latter
referred them to his [c]hief of [s]taff, Col. Roger Denia, who informed
them that there was no case filed against the accused. Nevertheless,
the latter was advised to be careful and consult a lawyer.
Inocencia Sabalones, mother of accused, Roling Sabalones, narrated
that on March 12, 1986 at past 10:00 o'clock in the evening, she was
roused from sleep by a shout of a man demanding for Roling Sabalones.
Upon hearing the name of her son, she immediately stood up and
peeped through the door of her store and saw men in fatigue uniforms
carrying long firearms. Thenceforth, these men boarded a vehicle and
left.
On the following morning, she was again awakened by the persistent
shouts and pushing of the gate. When she verified, the man who
introduced himself to her as Maj. Tiempo, ordered her to open the gate.
Once opened, the men of Maj. Tiempo entered the house and
proceeded to search for Roling Sabalones, whom Maj. Tiempo
suspected to have killed his son and shot another to near death. When
she demanded for a search warrant, she was only shown a piece of
paper but was not given the chance to read its contents.
Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained
that on June 1, 1985 at 1.00 o'clock in the afternoon, she was at the
wake of her brother-in-law, Junior Sabalones, at his residence in Bulacao,
Talisay, Cebu.
At 11:00 o'clock in the evening of the same day, together with her 3
daughters as well as Marlyn Sabarita, Rose Lapasaran and Gloria
Mondejar, left the place in order to sleep in an unoccupied apartment
situated 30 meters away from the house where her deceased, brother-
in-law, Junior, was lying in state, as shown in the Sketch, (Exh. "7" and
submarkings) prepared by her. They brought with them a flashlight
because the whole place was in total darkness.
As they were about to enter the gate leading to her apartment she
noticed a sedan car coming towards them. She waited for the car to
come nearer as she thought that the same belong[ed] to her friend, but
the vehicle instead stopped at the corner of the road, (Exh. "7-F") and
then proceeded to the end portion of Mansueto Compound, (Exh. "7-
G"). As it moved slowly towards the highway, she rushed inside the
apartment.
Few minutes later, she heard a burst of gunfire outside their gate. She
immediately gathered her children and instructed Marlyn Sabarita to use
the phone situated at the third door apartment and call the police.
After the lull of gunfire, she went to the terrace and saw people in civilian
and in fatigue uniforms with firearms, gathered around the place. One of
these men even asked her about the whereabouts of her husband,
whom she left sleeping in the house of the deceased.
At 8:30 in the morning of June 2, 1985, during the burial of Junior
Sabalones, they were informed by Pedro Cabanero that Roling
Sabalones was a suspect for the death of Nabing Velez and the son of
Maj. Tiempo.
She believed that the reason why her husband was implicated in the
killing of Nabing Velez was because of the slapping incident involving
her father-in-law, Federico Sabalones, Sr. and Nabing Velez which took
place prior to the death of Junior Sabalones.
After the funeral, she began to receive mysterious calls at their residence
in Sikatuna St., Cebu City where they began staying since 1978. She also
noticed cars with tinted windows strangely parked in front of their
residence.
Frightened and cowed, they decided to seek the advice of Col.
Apolinario Castano, who after relating to him their fears, advised her
husband to lie low and to consult a lawyer.
To allay their apprehension, accused, Roling Sabalones, left Cebu City
for Iligan, Manila and other cities to avoid those who were after him.
When she learned about the threat made by Maj. Tiempo on her
husband, she forewarned the latter not to return to Cebu.
Marlyn Sabarita, an illegitimate daughter of Rolusape Sabalones, stated
that in the night in question, she was at the wake of Junior Sabalones
and saw her Papa Roling, the herein accused, lying on the lawn of the
house of the deceased.
She was already in the apartment with her Mama Racquel when she
heard a burst of gunfire. Upon instructions of the latter, she went out to
call the police thru the phone located [in] the third apartment occupied
by a certain Jet. (Tsn-Tumarao, pp. 3-15, Oct. 15, 1990).
214
Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst. [s]ports [e]ditor of Sun-
Star Daily, while then a military and police reporter had covered the
shooting incident which took place on June 1, 1985 at the Mansueto
Compound, Bulacao, Talisay, Cebu.
At past 1:00 o'clock dawn, together with their newspaper photographer,
Almario Bitang, they went to the crime scene boarding the vehicle of the
Cosmopolitan Funeral Homes. Arriving thereat, they decided not to
proceed inside the compound because of fear. The place was then
incomplete darkness.
Upon being informed that the victims were brought to Cebu City
Medical Center, they rushed to the place and met Maj. Tiempo hugging
the dead body of his 14-year old son. His photographer took a picture of
that pathetic scene. (Exh. "8-B").
Samson Sabalones, a retired [a]mbassador and uncle of Rolusape
Sabalones, posted a bail bond for his nephew with Eastern Insurance
Company, when a warrant for his arrest was issued by the Municipal
Court, on March 12, 1986 because he was bothered by the fact that the
latter was being unreasonably hunted by several groups. He even
advised the accused to appear in [c]ourt to clarify the nature of the
case filed against him.
Virgincita Pajigal, a resident of Butuan City, met accused, Rolusape
Sabalones, who introduced himself to her as "Paciano Laput"
nicknamed, Ondo, in a massage clinic where she was working.
For less than a year, they lived together as husband and wife without the
benefit of marriage because according to her the accused was married
but separated from his wife, whose name was never mentioned to her.
For such a short span of time being together, her love for the accused
developed to the extent that whatever happen[ed] to him, she [would]
always be there to defend him.
With the help of Maj. delos Santos, who advised her to always stay close
[to] the accused, she was able to board the same vessel. She saw the
latter clad in green T-shirt, (Exh. "14") and pants, handcuffed and
guarded.
Reaching Cebu City, they took a taxicab and as the vehicle went
around the city, she was instructed by Maj. Tiempo to place the towel,
(Exh. "15") which she found inside her bag, on the head of the accused.
They stopped at the Reclamation Area and Maj. Tiempo pulled them out
of the vehicle but she held on tightly to Ondo, ripping his shirt. This pulling
incident happened for several times but complainant failed to let them
out of the vehicle.
The accused was finally brought to the Provincial Jail while she stayed in
the residence of the accused. She returned to Butuan after a week. (Tsn-
Formentera, pp. 5-33, Jan. 22, 1991).
Accused, Rolusape Sabalones, alias "Roling", in his defense, with ancillary
incidental narrations, testified, that on June 1, 1985 at 6:00 o'clock in the
evening, he was at the wake of his only brother, Junior Sabalones, who
was killed on May 26, 1985.
He had no idea as to who was responsible for the killing of his brother
inasmuch as the latter had plenty of enemies. He also did not exert effort
to look into the case and to place it under police authority since he had
lost faith in the capabilities of the police. The matter was however
reported by his uncle, Ambassador Sabalones, to the authorities.
He stayed at the wake until 10:00 o'clock in the evening because he was
not feeling well. He retired in a small room adjacent to the sala of the
house of the deceased. Not long after, he felt somebody waking him up
but he merely opened his eyes and went back to sleep as he was really
exhausted.
At 6:30 the following morning, he was roused by his wife so he could
prepare for the burial. He came to know about the burst of gunfire which
took place the previous night upon the information of his wife. He did not
take the news seriously as he was busy preparing for the burial of his
deceased brother, Jun.
The funeral started at past 8:00 o'clock in the morning and he noticed
the presence of Maj. Eddie Ricardo and his men, who were sent by Col.
Castano purposely to provide the burial with military security, upon the
request of his wife.
He had a conversation with Maj. Ricardo who inquired about the
shooting incident which resulted in the death of the son of Maj. Tiempo
and others in his company. Also in the course of their conversation, he
came to know that Nabing Velez was killed earlier on that same night in
Labangon, Cebu [C]ity.
On the same occasion, Pedro Cabanero also notified him that he was a
suspect in the killing of Nabing Velez, a radio commentator of ferocious
character, who was engaged in a protection racket with several under
his control.
215
He remembered that a month prior to the death of Nabing Velez, his
father, Federico Sabalones, Sr. and the deceased while matching their
fighting cocks at the Talisay Sports Complex, had an altercation and the
latter slapped his paralytic father and challenged him to ask one of his
sons to avenge what he had done to him. He came to know about the
incident only after a week.
He did not deny the fact that he was hurt by the actuation of the
deceased for humiliating his father but it did not occur to him to file a
case or take any action against the deceased because he was too busy
with his business and with his work as a bet caller in the cockpit.
He advised his father to stay in Bohol to avoid further trouble because he
knew that the latter would frequent the cockpit[,] being a cockfight
aficionado.
Likewise, during the burial, he was informed by a PC soldier, Roger
Capuyan, that he was also a suspect in the killing of the son of Maj.
Tiempo and even advised him to leave the place.
On the following days after the burial, his wife started to notice cars
suspiciously parked in front of their house and [she] also received
mysterious calls.
Together with his wife, they decided to see Col. Apolinario Castaño to
seek his advise. The latter verified from the Cebu Metrodiscom and
learned that there was no case filed against him.
In the evening of June 6, 1985, he left for Iligan and after a month, he
transferred to Ozamis and ten to Pagadian. He likewise went to Manila
especially when he learned that his uncle, Samson Sabalones, had
arrived from abroad. The latter posted a bond for his temporary liberty
immediately after being informed that a case was filed against him,
before the Municipal Court of Talisay.
Despite . . . the bond put up his uncle, he did not return to Cebu City
because it came to his knowledge that Maj. Tiempo inquired from the
bonding company as to his address.
He also stayed in Marikina in the house of his friend and during his stay in
the said place, he registered as a voter and was issue a Voter's Affidavit,
(Exh. "19"; Exh. "R" for the prosecution) which bore the name "Paciano
Mendoza Laput" which [was] his baptismal name. He explained that the
name[s] Mendoza and Laput [were] the middle name and surname,
respectively of his mother. The name "Rolusape" was given to him by his
father and the same [was] not his registered name because during the
old days, priests would not allow parents to name their children with
names not found in the Almanac; thus, Paciano [was] his chosen name
and the same appeared in his Baptismal Certificate, (Exh. "20") issued by
the Parish of the Blessed Trinity of Talibon, Bohol. In his Birth Certificate, it
[was] the name "Rolusape" which appeared based upon the data
supplied by his father.
He had used the name Paciano during the time when he [was] still a
secret agent under his uncle, Gen. Russo Sabalones, when the latter was
still the [c]hief of the C-2 in 1966 until 1967 and as such, he was issued a
firearm. He likewise used said name at the time he was employed at the
Governor's Office in Agusan and when he registered in the Civil Service
Commission to conceal his identity to protect himself from those who
were after him.
From Marikina he proceeded to Davao and then to Butuan City where
he was made to campaign for the candidacy of Gov. Eddie Rama.
When the latter won in the election, he was given a job at the Provincial
Capitol and later became an agent of the PC in Butuan using the name,
"Paciano Laput."
During his stay in Butuan, he met Virgie Pajigal, a manicurist who
became his live-in partner.
On October 23, 1988 while he was at the Octagon Cockpit in Butuan
with Sgt. Tambok, he was arrested by Capt. Ochate and was brought to
the PC Headquarter[s] in Libertad, Butuan City and was detained.
Among the papers confiscated from him was his Identification Card No.
028-88, (Exh. "21") issued by the PC Command bearing the name
Paciano Laput.
On October 26, 1988 he was taken from the City Jail by Capt. Ochate
and some soldiers, one of whom was Maj. Tiempo whom he met for the
first time.
On their way to Nasipit to board a vessel bound for Cebu City, Maj.
Tiempo made him lie flat on his belly and stepped on his back and
handcuffed him. He cried in pain because of his sprained shoulder. A
certain soldier also took his watch and ring.
Arriving in Cebu at 7:00 o'clock in the morning, he and Virgie Pajigal,
who followed him in the boat, were made to board a taxicab. Maj.
Tiempo alighted in certain place and talked to a certain guy. Thereafter,
they were brought to the Reclamation Area and were forced to go
216
down from the vehicle but Virgie Pajigal held him tightly. They were
again pulled out of the taxi but they resisted.
From the Capitol Building, they proceeded to CPDRC and on their way
thereto, Maj. Tiempo sat beside him inside the taxi and boxed him on the
right cheek below the ear and pulled his cuffed hands apart.
At the Provincial Jail, he was physically examined by its resident
physician, Dr. Dionisio Sadaya, and was also fingerprinted and
photographed, (Exh. "21"). He was issued a Medical Certificate, (Exh.
"22").
He further stated that he [was] acquainted with his co-accused Timoteo
Beronga, known to him as "Timmy" being also a bet caller in the cockpit.
(Tsn-Formentera, pp. 5-23, Feb. 26, 1991; Tsn-Abangan, pp. 3-33, Feb. 27,
1991; Tsn-Abangan, pp. 4-18, Apr. 10, 1991).
As surrebuttal witness, accused Rolusape Sabalones denied that he
bribed a certain soldier because at the time he was arrested, his wallet
as well as his wristwatch and ring worth P2,000.00 each were confiscated
and his hands tied behind his back.
He also denied the allegation of Maj. Tiempo that he offered the latter
the amount of P1,000,000.00 to drop the case against him, the truth
being that while they were on board a vessel bound for Cebu City, Maj.
Tiempo compelled him to tell [who] the real killers of his son [were]
because he knew that he (Rolusape Sabalones) was not responsible. The
former also inquired from him as to the whereabouts of the carbine.
He also rebutted complainant's testimony that upon their arrival here in
Cebu City and while on board a taxicab, he directed the former [to] first
go around the city to locate a certain Romeo Cabañero, whom he did
not know personally. 10
Ruling of the Court of Appeals
Giving full credence to the evidence of the prosecution, the Court of Appeals affirmed the
trial court's Decision convicting appellants of two counts of murder and three counts of
frustrated murder. Like the trial court, it appreciated the qualifying circumstance of
treachery and rejected appellants' defense of alibi.
The Court of Appeals, however, ruled that the penalties imposed by the trial court were
erroneous. Hence, for each count of murder, it sentenced appellants to reclusion perpetua.
For each count of frustrated murder, it imposed the following penalty: ten years (10)
of prision mayor (medium), as minimum, to seventeen years (17) years and four (4) months
of reclusion temporal (medium), as maximum. Sustaining the trial court, the Court of
Appeals awarded indemnity of P20,000 to each of the victims of frustrated murder.
However, it was silent on the indemnity of P50,000 awarded by the trial court to the heirs of
each of the two deceased.
Having imposed reclusion perpetua on the appellants, the Court of Appeals, as earlier
noted, refrained from entering judgment and certified the case to the Supreme Court for
review, in conformity with Section 13, Rule 124 of the Rules of Court.
Hence, this appeal before this Court. 11
The Issues
In his Brief, 12 Appellant Sabalones raised the following errors allegedly committed by the
trial court:
I Well-entrenched is the tenet that this Court will not interfere with the trial court's assessment
The court a quo erred in finding that accused Sabalones and his friends
left the house where his brother Sabalones Junior was lying in state and
"went to their grisly destination amidst the dark and positioned
themselves in defense of his turf against the invasion of a revengeful
gang of the supporters of Nabing Velez.
II
The court a quo erred in finding that accused Sabalones and his two co-
accused were identified as among the four gunmen who fired at the
victims.
III
The court a quo erred in overlooking or disregarding physical evidence
that would have contradicted the testimony of prosecution witnesses
Edwin Santos and Rogelio Presores that the gunmen were shooting at
them from a standing position.
IV
The court a quo erred in holding that the instant case is "one of aberratio
ictus", which is not a defense, and that the "defense of alibi" interposed
by the accused may not be considered.
V in the instant case to justify a reversal or modification of the findings of the trial court and
The court a quo erred in not finding that the evidence of the prosecution
has not overcome the constitutional presumption of innocence in favor
of the accused.
VI
The court a quo erred in not acquitting the accused on ground of
reasonable doubt.
In a Manifestation dated December 20, 1995, Appellant Beronga, through counsel,
adopted as his own the Brief of Sabalones. 13
217
The foregoing assignment of errors shall be reformulated by the Court into these three issues
or topics: (1) credibility of the witnesses and sufficiency of the prosecution evidence, (2)
defense of denial and alibi, and (3) characterization of the crimes committed and the
penalty therefor.
The Court's Ruling
The appeal is devoid of merit.
First Issue:
Credibility of Witnesses and
Sufficiency of Evidence
of the credibility of the witnesses, absent any indication or showing that the trial court has
overlooked some material facts or gravely abused its discretion, 14 especially where, as in
this case, such assessment is affirmed by the Court of Appeals. "As this Court has reiterated
often enough, the matter of assigning values to declarations at the witness stand is best
and most competently performed or carried out by a trial judge who, unlike appellate
magistrates, can weigh such testimony in light of the accused's behavior, demeanor,
conduct and attitude at the trial." 15 Giving credence to the testimonies of the prosecution
witnesses, the trial court concluded:
Stripped of unnecessary verbiage, this Court, given the evidence, finds
that there is more realism in the conclusion based on a keener and
realistic appraisal of events, circumstances and evidentiary facts on
record, that the gun slaying and violent deaths of Glenn Tiempo and
Alfredo Nardo, and the near fatal injuries of Nelson Tiempo, Rey Bolo and
Rogelio Presores, resulted from the felonious and wanton acts of the
herein accused for mistaking said victims for the persons [who were]
objects of their wrath. 16
We stress that "factual findings of the lower courts, the trial court and the Court of Appeals
are, as a general rule, binding and conclusive upon the Supreme Court." 17 We find nothing
the Court of Appeals that appellants committed two counts of murder and three counts of
frustrated murder.
Edwin Santos, a survivor of the assault, positively pointed to and identified the appellants as
the authors of the crime. His categorical and straightforward testimony is quoted
hereunder: 18
COURT:
Q You stated there was a gun fired. What happened
next?
WITNESS:
A There was a rapid fire in succession.
Q When you heard this rapid firing, what did you do?
A I tried to look from where the firing came from.
Q After that, what did you find?
A I saw persons firing towards us.
Q Where were these persons situated when they were
firing towards you?
A Near the foot of the electric post and close to the
cemented wall.
Q This electric post, was that lighted at that moment?
A Yes, sir, it was lighted.
Q How far were these persons firing, to the place
where you were?
A From here to there (The witness indicating the
distance by pointing to a place inside the courtroom,
indicating a distance of about 6 to 7 meters, making
the witness stand as the point of reference).
Q Were you able to know how many persons fired
towards you?
A I only saw 3 to 4 persons.
Q How long did these persons fire the guns at you?
A Until we went home. The persons were still firing, until
we went home.
Q You stated that you saw these persons who were
firing at you. Do you know these persons?
A I can identify [them] when I [see] them.
Q Try to look around this courtroom, if these persons
you saw who were firing at you are present in the
courtroom[.]
A Yes, sir.
Q Can you point to these persons?
A Yes, sir.
Q Point at them.
COURT INTERPRETER:
The Court directed the witness to go down from the
witness stand and [point] at them, Beronga and
Alegarbes.
218
FISCAL GABIANA:
I would like to make it of record that on the bench of
prisoner, only the two accused were seated.
COURT:
Make it of record that only two prisoners were present.
Q Now, Mr. Santos, aside from these two accused you
identified as among those who fired [at] you on that
evening, were there other persons that you saw on
that particular occasion who fired at you?
A Yes, sir, there were[;] if I can see them, I can identify
them.
Corroborating the foregoing, Rogelio Presores, another survivor, also pointed to Timoteo
Beronga, Teodulo Alegarbes and Roling Sabalones as the perpetrators of the crime. His
testimony proceeded in this manner: 19
Q When you arrived at the residence of Stephen Lim,
can you remember of any unusual incident that took
place?
A Yes, sir.
Q What was that?
A When the jeep arrived, the car was following.
Q What happened next?
A When the jeep was near the gate, the car was
following.
Q The car was following the jeep, at what distance?
A 3 to 4 meters.
Q While the car was following the jeep at that
distance of 3 to 4 meters, what happened?
A All of a sudden, we heard the burst of gunfire.
Q From what direction was the gunfire?
A Through the direction of the jeep.
Q After hearing the gunfire, what happened?
A We looked at the jeep.
Q What did you see?
A We saw Alfredo Nardo and Glenn Tiempo and Rey
Bolo f[a]ll to the ground. There were only 3.
Q Who was driving the jeep at that time?
A Alfredo Nardo.
Q What happened after that?
 A So, I looked, whence the burst of gunfire came
from.
Q What did you see from that gunfire?
A I saw 4 persons standing at the back of the fence.
Q What were those 4 persons doing when they were
standing at the back of the fence?
A They were bringing long firearms.
Q Did you recognize these persons?
A I can clearly recognize one and the 3 persons[.] I
can identify them, if I can see them again.
Q If you are shown these persons, can you recognize
them? Can you name these persons?
A No, sir. Only their facial appearance.
Q What about the 3 persons?
A That's why the 3 persons, I do not know them. I can
recognize only their facial appearance.
Q What about one person?
A Yes, sir.
Q What is the name of the person?
A Roling Sabalones.
Q If Roling Sabalones is inside the courtroom, can you
recognize Roling Sabalones?
A Yes, sir, he is around.
Q Can you point to Roling Sabalones?
A Yes, he is there (The witness pointing to the person
who answered the name of Roling Sabalones).
Q I would like [you] again to please look around and
see, if those persons whom you know through their
faces, if they are here around?
A The two of them (The witness pointing to the 2
persons, who, when asked, answered that his name
[was] Teofilo Beronga and the other [was] Alegarbes).
Indeed, we have carefully waded through the voluminous records of this case and the
testimonies of all the fifty-nine witnesses, and we find that the prosecution has presented
the required quantum of proof to establish that appellants are indeed guilty as charged.
Appellants' arguments, as we shall now discuss, fail to rebut this conclusion.
Positive Identification
219
Appellants allege that the two witnesses could not have properly identified the appellants
because, after the first burst of shooting, they both crouched down, such that they could
not have seen the faces of their assailants. This contention does not persuade. Both
eyewitnesses testified that the firing was not continuous; thus, during a lull in the firing, they
raised their heads and managed a peek at the perpetrators. Edwin Santos testified as
follows:
Atty. Albino, counsel for accused Beronga:
Q You mean to say that when you bent you heard the
successive shots, [and] you again raised your head. Is
that correct?
A There, were times that the shots were not in
succession and continuous and that was the time I
raised my head again. 20
Like Santos, Rogelio Presores also stooped down when the firing started, but he raised his
head during a break in the gunfire:
Atty. Albino:
Q So, what did you do when you first heard that one
shot?
A So, after the first shot, we looked towards the
direction we were facing and when we heard the
second shot, that was the time we stooped down. 21
He further testified:
Atty. Acido: [Counsel for Appellant Sabalones]
Q And you said you stooped down inside the car
when you heard the first firing to the jeep. Is that what
you want the Court to understand[?]
Presores:
A Yes, sir.
Q So, you never saw who fired the successive shots to
the car as you said you stooped down inside the car?
A The bursts of gunfire stopped for a while and that
was the time I reared of [sic] my head.
Q And that was the first time you saw them?
A Yes, sir. 22
The records clearly show that two vehicles proceeded to the house of Stephen Lim on that
fateful day. The first was the jeep where Alfredo Nardo, Glenn Tiempo and Rey Bolo were
riding. About three to four meters behind was the second car carrying Nelson Tiempo,
Guillermo Viloria, Rogelio Oliveros and the two prosecution witnesses — Edwin Santos and
Rogelio Presores. 23 As stated earlier, said witnesses attested to the fact that after the first
volley of shots directed at the jeep, they both looked at the direction where the shots were
coming from, and they saw their friends in the jeep falling to the ground, as well as the
faces of the perpetrators. 24 It was only then that a rapid succession of gunshots were
directed at them, upon which they started crouching to avoid being hit.
Hence, they were able to see and identify the appellants, having had a good look at them
after the initial burst of shots. We stress that the normal reaction of a person is to direct his
sights towards the source of a startling shout or occurrence. As held in People v.
Dolar, 25 "the most natural reaction for victims of criminal violence is to strive to see the looks
and faces of their assailants and to observe the manner in which the crime is committed.
In bolstering their claim that it was impossible for the witnesses to have identified them,
appellants further aver that the crime scene was dark, there being no light in the lampposts
at the time. To prove that the service wire to the street lamps at the Mansueto Compound
was disconnected as early as December 1984 and reconnected only on June 27, 1985,
they presented the testimonies of Vicente Cabanero, 26 Remigio Villaver, 27 Fredo
Canete 28 and Edward Gutang. 29 The trial court, however, did not lend weight to said
testimonies, preferring to believe the statement of other prosecution witnesses that the
place was lighted during that time.
The Court of Appeals sustained said findings by citing the testimonies of defense witnesses.
Fredo Canete of the Visayan Electric Company (VECO), for instance, admitted that it was
so easy to connect and disconnect the lights. He testified thus:
Atty. Kintanar:
Q Now, as a cutter, what instruments do you usually
use in cutting the electrical connection of a certain
place?
Canete:
A Pliers and screw driver.
Q Does it need . . . very sophisticated instruments to
disconnect the lights?
A No, these are the only instruments we use.
Q Ordinary pliers and ordinary screw driver?
A Yes, sir.
Q And does [one] need to be an expert in electronic
[sic] in order to conduct the disconnection?
A No, sir.
Q In other words, Mr. Canete, any ordinary electrician
can cut it?
220
A That is if they are connected with the Visayan
Electric Company.
Q What I mean is that, can the cutting be done by
any ordinary electrician?
A Yes, sir. 30
Said witness even admitted that he could not recall if he did in fact cut the electrical
connection of the Mansueto Compound. 31 The Court of Appeals further noted that "none
of the above witnesses were at the crime scene at or about the exact time that the
ambush occurred. Thus, none was in a position to state with absolute certainty that there
was allegedly no light to illuminate the gunmen when they rained bullets on the victims. 32
Even assuming arguendo that the lampposts were not functioning at the time, the
headlights of the jeep and the car were more than sufficient to illuminate the crime
scene. 33 The Court has previously held that the light from the stars or the moon, an oven, or
a wick lamp or gasera can give ample illumination to enable a person to identify or
recognize another. 34 In the same vein, the headlights of a car or a jeep are sufficient to
enable eyewitnesses to identify appellants at the distance of 4 to 10 meters.
Extrajudicial Statement
of Beronga
Appellants insist that Beronga's extrajudicial statement was obtained through violence and
intimidation. Citing theres inter alios acta rule, they also argue that the said statement is
inadmissible against Sabalones. Specifically, they challenge the trial court's reliance on the
following portions of Beronga's statement:
Q After Roling knew that Na[b]ing Velez was killed,
have you observed [if] Roling and his companions
prepared themselves for any eventuality?
A It did not take long after we knew that Na[b]ing was
killed, somebody called up by telephone looking for
Roling, and this was answered by Roling but we did
not know what they were conversing about and then
Roling went back to the house of Junior after
answering the phone. And after more than two hours,
we heard the sound of engines of vehicles arriving,
and then Meo, the man who was told by Roling to
guard, shouted saying: "They are already here[;]" after
that, Roling came out carrying a carbine
accompanied by Tsupe, and not long after we heard
gunshots and because of that we ran towards the
house where the wake was. But before the gun-shots, I
 heard Pedring Sabalones father of Roling saying: "You argue that Beronga's statement was made afterthe termination of the conspiracy; thus, it
clarify, [t]hat you watch out for mistake[n] in identity," should not be admitted and used against Sabalones.
and after that shout, gunshots followed. [sic] Then The well-settled rule is that the extrajudicial confession of an accused is binding only upon
after the gun-shots Roling went back inside still himself and is nor admissible as evidence against his co-accused, it being mere hearsay
carrying the carbine and shouted: "GATHER THE EMPTY evidence as far as the other accused are concerned. 41 But this rule admits of exception. It
SHELLS AND MEO[,] YOU BRING A FLASHLIGHT," and does not apply when the confession, as in this case, is used as circumstantial evidence to
then I was called by Meo to help him gather the show the probability of participation of the co-accused in the killing of the victims 42 or
empty shells of the carbine and also our third when the confession of the co-accused is corroborated by other evidence. 43
companion to gather the empty shells. Beronga's extrajudicial statement is, in fact, corroborated by the testimony of Prosecution
These arguments have no merit. In the first place, it is well to stress that appellants were Witness Jennifer Binghoy. Pertinent portions of said testimony are reproduced hereunder:
convicted based primarily on the positive identification of the two survivors, Edwin Santos Q While you were at the wake of Jun Sabalones and
and Rogelio Presores, and not only on the extrajudicial statement, which merely the group were sitting with Roling Sabalones, what
corroborates the eyewitness testimonies. Thus, said arguments have no relevance to this were they doing?
case. As the Court held in People vs. Tidula: 35 "Any allegation of violation of rights during A They were gathered in one table and they were
custodial investigation is relevant and material only to cases in which an extrajudicial conversing with each other.
admission or confession extracted from the accused becomes the basis of their conviction." xxx xxx xxx
In any case, we sustain the trial court's holding, as affirmed by the Court of Appeals, that Q On that same date, time and place, at about 10:00
the extrajudicial statement of Beronga was executed in compliance with the constitutional [i]n the evening, can you remember if there was
requirements. 36 "Extrajudicial confessions, especially those which are adverse to the unusual incident that took place?
declarant's interests are presumed voluntary, and in the absence of conclusive evidence A I heard over the radio at the Sabalones Family that
showing that the declarant's consent in executing the same has been vitiated, such a certain Nabing Velez was shot.
confession shall be upheld." 37 Q That [a] certain Nabing Velez was shot? What else .
The exhaustive testimony of Sgt. Miasco, who undertook the investigation, shows that the . . transpired?
appellant was apprised of his constitutional rights to remain silent and to have competent A I observed that their reactions were so queer, — as if
and independent counsel of his own choice. 38 Said witness also stated that Beronga was they were running.
assisted by Atty. Marcelo Guinto during the custodial investigation. 39 In fact, Atty. Guinto xxx xxx xxx
also took the witness stand and confirmed that Appellant Beronga was informed of his Q In that evening of June 1, 1985, when you went
rights, and that the investigation was proper, legal and not objectionable. Indeed, other there at the house of Jun Sabalones, have you seen
than appellants' bare allegations, there was no showing that Beronga's statement was an armalite?
obtained by force or duress. 40 A Yes, sir.
Equally unavailing is appellants' reliance on the res inter alios acta rule under Section 30, Q Where aid you see this armalite?
Rule 130 of the Rules of Court, which provides: A At the table where they were conversing.
The act or declaration of a conspirator relating to the conspiracy and Q How many armalites or guns [did you see] that
during its existence, may be given in evidence against the co- evening in that place?
conspirator after the conspiracy is shown by evidence other than such A Two (2).
act or declaration. xxx xxx xxx
Appellants assert that the admission referred to in the above provision is considered to be Q This armalite that you saw, — how far was this in
against a co-conspirator only when it is given during the existence of the conspiracy. They relation to the groups of Sabalones?

221
 A There (The witness indicating a distance of about 4
to 5 meters).
ATTY. KINTANAR:
Q When you looked . . . through the window and saw
there were two vehicles and there were bursts of
gunfire, what happened after that?
A I did not proceed to look . . . through the window
because I stooped down.
Q When you stooped down, what happened?
A After the burst of gunfire, I again opened the
window.
Q And when again you opened the window, what
happened?
A I saw two persons going towards the jeep.
Q What transpired next after [you saw] those 2
persons?
A When they arrived there, they nodded their head[s].
Q After that, what happened?
A So, they went back to the direction where they
came from, going to the house of Sabalones.
Q While they were going to the direction of the house
of Sabalones, what transpired?
A I saw 5 to 6 persons coming from the highway and
looking to the jeep, and before they reached the
jeep, somebody shouted that "it's ours".
Q Who shouted?
A The voice was very familiar to me.
Q Whose voice?
A The voice of Roling Sabalones.
Q What else have you noticed during the commotion
[when] wives were advising their husbands to go
home?
A They were really in chaos. 44
A careful reading of her testimony buttresses the finding of the trial court that Rolusape
Sabalones and his friends were gathered at one table, conversing in whispers with each
other, that there were two rifles on top of the table, and that they became panicky after
hearing of the death of Nabing Velez on the radio. Hence, the observation of the trial court
that "they went to their grisly destination amidst the dark and positioned themselves in
222
defense of his turf against the invasion of a revengeful gang of supporters of the recently
slain Nabing Velez." 45
Alleged Inconsistencies
Appellants also allege that the prosecution account had inconsistencies relating to the
number of shots heard, the interval between gunshots and the victims' positions when they
were killed. These, however, are minor and inconsequential flaws which strengthen, rather
than impair, the credibility of said eyewitnesses. Such harmless errors are indicative of truth,
not falsehood, and do not cast serious doubt on the veracity and reliability of
complainant's testimony. 46
Appellants further claim that the relative positions of the gunmen, as testified to by the
eyewitnesses, were incompatible with the wounds sustained by the victims. They cite the
testimony of Dr. Ladislao Diola, who conducted the autopsy on Glenn Tiempo. He declared
that the victim must necessarily be on a higher level than the assailant, in the light of the
path of the bullet from the entrance wound to where the slug was extracted. This finding,
according to appellant, negates the prosecution's account that the appellants were
standing side by side behind a wall when they fired at the victims. If standing, appellants
must have been on a level higher than that of the occupants of the vehicles; if beside
each other, they could not have inflicted wounds which were supposed to have come
from opposite angles.
We are not persuaded. The defense presumes that the victims were sitting still when they
were fired upon, and that they froze in the same position during and after the shooting. This
has no testimonial foundation. On the contrary, it was shown that the victims ducked and
hid themselves, albeit in vain, when the firing began. After the first volley, they crouched
and tried to take cover from the hail of bullets. It would have been unnatural for them to
remain upright and still in their seat. Hence, it is not difficult to imagine that the trajectories
of the bullet wounds varied as the victims shifted their positions. We agree with the following
explanation of the Court of Appeals:
The locations of the entry wounds can readily be explained, . . . Glenn
Tiempo, after looking in the direction of the explosion, turned his body
around; and since the ambushers were between the jeep and the car,
he received a bullet in his right chest (wound no. 1) which traveled to the
left. As to wound No. 2, it can be explained by the spot where Major
Tiempo found his fallen son.
Atty. Kintanar:
Q: Upon being informed by these occupants who
were ambushed and [you] were able to return the
car, what did you do?
Major Tiempo:
 A: I immediately got soldiers and we immediately
proceeded to the area or to the place where my
fallen son was located and when we reached . . . the
place, I saw my fallen son [in] a kneeling position
where both knees [were] touching the ground and
the toes also and the forehead was touching towards
the ground. (TSN, Feb. 12, 1988, p. 6)
In such position the second bullet necessarily traveled upwards in
relation to the body, and thus the entry wound should be lower than the
exit wound. There is no showing that both wounds were inflicted at the
same time. 47
In any event, the witnesses saw that the appellants were the gunmen who were standing
side by side firing at them. They could have been in a different position and in another
hiding place when they first fired, but this is not important. They were present at the crime
scene, and they were shooting their rifles at the victims.
Aberratio Ictus
Appellants likewise accuse the trial court of engaging in "conjecture" in ruling that there
was aberratio ictus in this case. This allegation does not advance the cause of the
appellants. It must be stressed that the trial court relied on the concept of aberratio
ictus to explain why the appellants staged the ambush, not to prove that appellants did in
fact commit the crimes. Even assuming that the trial court did err in explaining the motive of
the appellants, this does not detract from its findings, as affirmed by the Court of Appeals
and sustained by this Court in the discussion above, that the guilt of the appellants was
proven beyond reasonable doubt.
In any event, the trial court was not engaging in conjecture in so ruling. The conclusion of
the trial court and the Court of Appeals that the appellants killed the wrong persons was
based on the extrajudicial statement of Appellant Beronga and the testimony of Jennifer
Binghoy. These pieces of evidence sufficiently show that appellants believed that they were
suspected of having killed the recently slain Nabing Velez, and that they expected his
group to retaliate against them. Hence, upon the arrival of the victims' vehicles which they
mistook to be carrying the avenging men of Nabing Velez, appellants opened fire.
Nonetheless, the fact that they were mistaken does not diminish their culpability. The Court
has held that "mistake in the identity of the victim carries the same gravity as when the
accused zeroes in on his intended
victim." 48
Be that as it may, the observation of the solicitor general on this point is well-taken. The case
is better characterized as error personae or mistake in the identity of the victims, rather
223
than aberratio ictus which means mistake in the blow, characterized by aiming at one but
hitting the other due to imprecision in the blow.
Second Issue:
Denial and Alibi
Appellants decry the lower courts' disregard of their defense of alibi. We disagree. As
constantly enunciated by this Court, the established doctrine requires the accused to
prove not only that he was at some other place at the time of the commission of the crime,
but that it was physically impossible for him at the time to have been present at the locus
criminis or its immediate vicinity. 49 This the appellants miserably failed to do.
Appellant Beronga testified that, at the time of the incident, he was in his residence in
Lapulapu City, which was not shown to be so remote and inaccessible that it precluded his
presence in Mansueto Subdivision. The alibi of Sabalones is even more unworthy of belief;
he sought to establish that he was a mere 20-25 meters away from the scene of the crime.
He was allegedly in the house of his brother who was lying in state, which was so near the
ambush site that some of the defense witnesses even testified that they were terrified by
the gunfire. Clearly, appellants failed to establish the requisites of alibi.
Furthermore, the defense of alibi cannot overcome the positive identification of the
appellants. 50 As aptly held by this Court in People v. Nescio: 51
Alibi is not credible when the accused-appellant is only a short distance
from the scene of the crime. The defense of alibi is further offset by the
positive identification made by the prosecution witnesses. Alibi, to
reiterate a well-settled doctrine, is accepted only upon the clearest
proof that the accused-appellant was not or could not have been at
the crime scene when it was committed.
Flight
Appellants further object to the finding that Sabalones, after the incident, "made himself
scarce from the place of commission. He left for Manila, thence Mindanao on the
supposition that he want[ed] to escape from the wrath of Maj. Tiempo and his men for the
death of Glenn Tiempo and the near fatal shooting of the other son or from the supporters
of Nabing Velez. . . . On his supposedly borrowed freedom, he jumped bail and hid himself
deeper into Mindanao, under a cloak of an assumed name. Why, did his conscience
bother him for comfort?" 52
Appellants rationalized that Sabalones was forced to jump bail in order to escape two
groups, who were allegedly out to get him, one of Nabing Velez and the other of Major
Tiempo. Their ratiocination is futile. It is well-established that "the flight of an accused is
competent evidence to indicate his guilt, and flight, when unexplained, is a circumstance
from which an inference of guilt may be drawn." 53 It must be stressed, nonetheless, that
appellants were not convicted based on legal inference alone but on the overwhelming
evidence presented against them.
Third Issue:
Crime and Punishment
We agree with the appellate court that accused-appellants are guilty of murder for the
deaths of Glenn Tiempo end Alfredo Nardo. The allegation of treachery as charged in the
Information was duly proven by the prosecution. "Treachery is committed when two
conditions concur, namely, that the means, methods, and forms of execution employed
gave the person attacked no opportunity to defend himself or to retaliate; and that such
means, methods and forms of execution were deliberately and consciously adopted by
the accused without danger to his person." 54These requisites were evidently present when
the accused, swiftly and unexpectedly, fired at the victims who were inside their vehicles
and were in no position and without any means to defend themselves.
The appellate court also correctly convicted them of frustrated murder for the injuries
sustained by Nelson Tiempo, Rey Bolo and Rogelio Presores. As evidenced by the medical
certificates and the testimony of Dr. Miguel Mancao who attended to the victims, Nelson
Tiempo sustained a neck wound which completely shattered his trachea and rendered him
voiceless, as well as a wound on the right chest which penetrated his axilla but not his chest
cavity. 55Rey Bolo sustained three injuries which affected his clavicle, ribs and
lungs. 56 Rogelio Presores, on the other hand, sustained an injury to his lungs from a bullet
wound which entered his right chest and exited through his back. 57
The wounds sustained by these survivors would have caused their death had it not been for
the timely medical intervention. Hence, we sustain the ruling of the Court of Appeals that
appellants are guilty of three counts of frustrated murder.
We also uphold the Court of Appeals' modification of the penalty for murder, but not its
computation of the sentence for frustrated murder.
For each of the two counts of murder, the trial court imposed the penalty of fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal (medium), as minimum, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal (maximum), as
maximum. This is incorrect. Under Article 248 of the Ravised Penal Code, the imposable
penalty is reclusion temporal, in its maximum period, to death. There being no aggravating
or mitigating circumstance, aside from the qualifying circumstance of treachery, the
appellate court correctly imposed reclusion perpetua for murder.
The Court of Appeals, however, erred in computing the penalty for each of the three
counts of frustrated murder. It sentenced appellants to imprisonment of ten years of prision
mayor (medium) as minimum to seventeen years and four months of reclusion
temporal (medium) as maximum. It modified the trial court's computation of eight (8) years
224
of prision mayor (minimum), as minimum, to fourteen (14) years and eight (8) months
of reclusion temporal(minimum) as maximum.
Under Article 50 of the Revised Penal Code, the penalty for a frustrated felony is the "next
lower in degree than that prescribed by law for the consummated felony . . . ." The
imposable penalty for frustrated murder, therefore, is prision mayor in its maximum period
to reclusion temporal in its medium period. 58 Because there are no aggravating or
mitigating circumstance as the Court of Appeals itself held, 59 the penalty prescribed by law
should be imposed in its medium period. With the application of the Indeterminate
Sentence Law, the penalty for frustrated murder should be 8 years of prision
mayor (minimum), as minimum, to 14 years and 8 months of reclusion temporal (minimum)
as maximum.
Although the Court of Appeals was silent on this point, the trial court correctly ordered the
payment of P50,000 as indemnity to the heirs of each of the two murdered victims. In light
of current jurisprudence, this amount is awarded without need of proof other than the fact
of the victim's death. 60 The trial court and the CA, however, erred in awarding indemnity of
P20,000 each to Nelson Tiempo, Rogelio Presores and Rey Bolo. There is no basis, statutory or
jurisprudential, for the award of a fixed amount to victims of frustrated murder. Hence, they
are entitled only to the amounts of actual expenses duly proven during the trial.
Thus, Nelson Tiempo, who was treated for a gunshot wound on the neck which shattered
his trachea, should be awarded indemnity of P21,594.22 for his medical expenses. This is
evidenced by a statement of account from Cebu Doctor's Hospital. 61
Rogelio Presores, who was likewise treated for gunshot wound in the same hospital,
presented a statement of account amounting to P5,412.69 for his hospitalization. 62 Hence,
he is likewise entitled to indemnity in the said amount.
Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the treatment of his
gunshot wounds, as evidenced by a statement of account from the same hospital. 63 This
amount should be awarded to him as indemnity.
WHEREFORE, the appeal is DENIED and the assailed Decision is AFFIRMED. However, the
penalties are hereby MODIFIED as follows:
1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants are each hereby
sentenced to reclusion perpetua and to indemnify, jointly and severally, the heirs of the
deceased, Glenn Tiempo, in the sum of P50,000;
2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants are each hereby
sentenced to reclusion perpetua and to indemnify, jointly and severally, the heirs of the
deceased, Alfredo Nardo, in the sum of P50,000;
3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the accused-appellants are each
hereby sentenced to suffer the penalty of 8 years of prision mayor (minimum), as minimum,
to 14 years and 8 months of reclusion temporal (minimum) as maximum; and to jointly and
severally pay the victim, Rey Bolo, in the sum of P9,431.10 as actual damages;
4) In Crim Case No. CBU-9260, for FRUSTRATED MURDER, the accused-appellants are hereby
sentenced to suffer the penalty of 8 years of prision mayor (minimum), as minimum, to 14
years and 8 months of reclusion temporal (minimum) as maximum; and to jointly and
severally indemnify the victim, Rogelio Presores, in the sum of P5,412.69 for actual damages;
5) In Crim. Case No. CBU-9261 for FRUSTRATED MURDER, the accused-appellants are hereby
sentenced to suffer the penalty of 8 years of prision mayor (minimum), as minimum, to 14
years and 8 months of reclusion temporal (minimum) as maximum; and to jointly and
severally indemnify the victim, Nelson Tiempo, in the sum of P21,594.22 as actual damages.
Let copies of this Decision be furnished the Secretary of Interior and Local Government and
the Secretary of Justice so that Accused Eufemio Cabanero may be brought to justice.
Costs against appellants.
SO ORDERED.
Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1477 January 18, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JULIO GUILLEN, defendant-appellant.
Mariano A. Albert for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco A. Carreon for
appellee.
PER CURIAM, J.:
This case is before us for review of, and by virtue of appeal from, the judgment rendered by
the Court of First Instance of Manila in case No. 2746, whereby Julio Guillen y Corpus, or
Julio C. Guillen, is found guilty beyond reasonable doubt of the crime of murder and
multiple frustrated murder, as charged in the information, and is sentenced to the penalty
of death, to indemnify the of the deceased Simeon Valera (or Barrela) in the sum of P2,000
and to pay the costs.
Upon arraignment the accused entered a plea of not guilty to the charges contained in
the information.
Then the case was tried in one of the branches of the Court of First Instance of Manila
presided over by the honorable Buenaventura Ocampo who, after the submission of the
evidence of the prosecution and the defense, rendered judgment as above stated.
225
In this connection it should be stated that, at the beginning of the trial and before
arraignment, counsel de oficio for the accused moved that the mental condition of Guillen
be examined. The court, notwithstanding that it had found out from the answers of the
accused to questions propounded to him in order to test the soundness of his mind, that he
was not suffering from any mental derangement, ordered that Julio Guillen be confined for
Hospital, there to be examined by medical experts who should report their findings
accordingly. This was done, and, according to the report of the board of medical experts,
presided over by Dr. Fernandez of the National Psychopathic Hospital, Julio Guillen was not
insane. Said report (Exhibit L), under the heading "Formulation and Diagnosis," at pages 13
and 14, reads:
FORMULATION AND DIAGNOSIS
Julio C. Guillen was placed under constant observation since admission. There
was not a single moment during his whole 24 hours daily, that he was not under
observation.
The motive behind the commission of the crime is stated above. The veracity of
this motivation was determined in the Narcosynthesis. That the narco-synthesis was
successful was checked up the day after the test. The narco-synthesis proved not
only reveal any conflict or complex that may explain a delusional or hallucinatory
motive behind the act.
Our observation and examination failed to elicit any sign or symptom of insanity in
Mr. Julio C. Guillen. He was found to be intelligent, always able to differentiate
right from wrong, fully aware of the nature of the crime he committed and is
equally decided to suffer for it in any manner or form.
His version of the circumstances of the crime, his conduct and conversation
relative thereto, the motives, temptations and provocations that preceded the
act, were all those of an individual with a sound mind.
On the other hand he is an man of strong will and conviction and once arriving at
a decision he executes, irrespective of consequences and as in this case, the
commission of the act at Plaza Miranda.
What is of some interest in the personality of Julio C. Guillen is his commission of
some overt acts. This is seen not only in the present instance, but sometime when
an employee in la Clementina Cigar Factory he engaged in a boxing bout Mr.
Manzano, a Span-wanted to abuse the women cigar makers, and felt it his duty
to defend them. One time he ran after a policeman with a knife in hand after
being provoked to a fight several times. He even challenged Congressman
Nueno to a fight sometime before when Mr. Nueno was running for a seat in the
Municipal Board of the City of Manila, after hearing him deliver one of his
apparently outspoken speeches.
 All these mean a defect in his personality characterized by a weakness of
censorship especially in relation to rationalization about the consequences of his
acts.
In view of the above findings it is our considered opinion that Julio C. Guillen is not
insane but is an individual with a personality defect which in Psychiatry is termed,
Constitutional Psychopathic Inferiority.
Final Diagnosis
Not insane: Constitutional Psychopathic Inferiority, without psychosis.
In view of the above-quoted findings of the medical board, and notwithstanding the
contrary opinion of one Dr. Alvarez, who was asked by the defense to give his opinion on
the matter, the court ruled that Guillen, not being insane, could be tired, as he was tired, for
the offenses he committed on the date in question.
THE FACTS
Upon careful perusal of the evidence and the briefs submitted by counsel for the accused,
the Solicitor General and their respective memoranda, we find that there is no
disagreement between the prosecution and the defense, as to the essential facts which
caused the filing of the present criminal case against this accused. Those facts may be
stated as follows:
On the dates mentioned in this decision, Julio Guillen y Corpus, although not affirmed with
any particular political group, has voted for the defeated candidate in the presidential
elections held in 1946. Manuel A. Roxas, the successful candidate, assumed the office of
President of the Commonwealth and subsequently President of the President of the
Philippine Republic. According to Guillen, he became disappointed in President Roxas for
his alleged failure to redeem the pledges and fulfill the promises made by him during the
presidential election campaign; and his disappointment was aggravated when, according
to him, President Roxas, instead of looking after the interest of his country, sponsored and
campaigned for the approval of the so-called "parity" measure. Hence he determined to
assassinate the President.
After he had pondered for some time over the ways and means of assassinating President
Roxas, the opportunity presented itself on the night of March 10, 1947, when at a popular
meeting held by the Liberal Party at Plaza de Miranda, Quiapo, Manila attended by a big
crowd, President Roxas, accompanied by his wife and daughter and surrounded by a
number of ladies and gentlemen prominent in government and politics, stood on a
platform erected for that purpose and delivered his speech expounding and trying to
convince his thousand of listeners of the advantages to be gained by the Philippines,
should the constitutional amendment granting American citizens the same rights granted to
Filipino nationals be adopted.
226
Guillen had first intended to use a revolver for the accomplishment of his purpose, but
having lost said firearm, which was duly licensed, he thought of two hand grenades which
were given him by an American soldier in the early days of the liberation of Manila in
exchange for two bottles of whisky. He had likewise been weighing the chances of killing
President Roxas, either by going to Malacañan, or following his intended victim in the
latter's trips to provinces, for instance, to Tayabas (now Quezon) where the President was
scheduled to speak, but having encountered many difficulties, he decided to carry out his
plan at the pro-parity meeting held at Plaza de Miranda on the night of March 10, 1947.
On the morning of that he went to the house of Amando Hernandez whom he requested
to prepare for him a document (Exhibit B), in accordance with their pervious understanding
in the preceding afternoon, when they met at the premises of the Manila Jockey Club on
the occasion of an "anti-parity" meeting held there. On account of its materially in this case,
we deem it proper to quote hereunder the contents of said document. An English
translation (Exhibit B-2) from its original Tagalog reads:
FOR THE SAKE OF A FREE PHILIPPINES
I am the only one responsible for what happened. I conceived it, I planned it, and
I carried it out all by myself alone. It took me many days and nights pondering
over this act, talking to my own conscience, to my God, until I reached my
conclusion. It was my duty.
I did not expected to live long; I only had on life to spare. And had I expected to
lives to spare, I would not have hesitated either ton sacrifice it for the sake of a
principle which was the welfare of the people.
Thousands have died in Bataan; many more have mourned the loss of their
husbands, of their sons, and there are millions now suffering. Their deeds bore no
fruits; their hopes were frustrated.
I was told by my conscience and by my God that there was a man to be blamed
for all this: he had deceived the people, he had astounded them with no other
purpose than to entice them; he even went to the extent of risking the heritage of
our future generations. For these reasons he should not continue any longer. His
life would mean nothing as compared with the welfare of eighteen million souls.
And why should I not give up my life too if only the good of those eighteen million
souls.
These are the reasons which impelled me to do what I did and I am willing to bear
up the consequences of my act. I t matters not if others will curse me. Time and
history will show, I am sure, that I have only displayed a high degree of patriotism
in my performance of my said act.
Hurrah for a free Philippines.
Cheers for the happiness of every Filipino home.
 May God pity on me.
Amen.
JULIO C. GUILLEN
A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of Guillen by
his nephew, was handed to him only at about 6 o'clock in the afternoon of March 10, 1947,
for which reason said Exhibit B-1 appears unsigned, because he was in a hurry for that
meeting at Plaza de Miranda.
When he reached Plaza de Miranda, Guillen was carrying two hand grenades concealed
in a paper bag which also contained peanuts. He buried one of the hand grenades (Exhibit
D), in a plant pot located close to the platform, and when he decided to carry out his evil
purpose he stood on the chair on which he had been sitting and, from a distance of about
seven meters, he hurled the grenade at the President when the latter had just closed his
speech, was being congratulated by Ambassador Romulo and was about to leave the
platform.
General Castañeda, who was on the platform, saw the smoking, hissing, grenade and
without losing his presence of mind, kicked it away from the platform, along the stairway,
and towards an open space where the general thought the grenade was likely to do the
least harm; and, covering the President with his body, shouted to the crowd that everybody
should lie down. The grenade fell to the ground and exploded in the middle of a group of
persons who were standing close to the platform. Confusion ensued, and the crowd
dispersed in a panic. It was found that the fragments of the grenade had seriously injured
Simeon Varela (or Barrela ) — who died on the following day as the result of mortal wounds
caused by the fragments of the grenade (Exhibits F and F-1) — Alfredo Eva, Jose Fabio,
Pedro Carrillo and Emilio Maglalang.
Guillen was arrested by members of the Police Department about two hours after the
occurrence. It appears that one Angel Garcia, who was one spectators at that meeting,
saw how a person who was standing next to him hurled an object at the platform and,
after the explosion, ran away towards a barber shop located near the platform at Plaza de
Miranda. Suspecting that person was the thrower of the object that exploded, Garcia went
after him and had almost succeeded in holding him, but Guillen offered stiff resistance, got
loose from Garcia and managed to escape. Garcia pursued him, but some detectives,
mistaking the former for the real criminal and the author of the explosion, placed him under
arrest. In the meantime, while the City Mayor and some agents of the Manila Police
Department were investigating the affair, one Manuel Robles volunteered the information
that the person with whom Angel Garcia was wrestling was Julio Guillen; that he (Manuel
Robles) was acquainted with Julio Guillen for the previous ten years and had seen each
other in the plaza a few moments previous to the explosion.
227
The police operatives interrogated Garcia and Robles, and Julio Guillen was, within two
hours after the occurrence, found in his home at 1724 Juan Luna Street, Manila, brought to
the police headquarters and identified by Angel Garcia, as the same person who hurled
towards the platform the object which exploded and whom Garcia tried to hold when he
was running away.
During the investigation conducted by the police he readily admitted his responsibility,
although at the same time he tried to justify his action in throwing the bomb at President
Roxas. He also indicated to his captors the place where he had hidden his so called last will
quoted above and marked Exhibit B, which was then unsigned by him and subsequently
signed at the police headquarters.
Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried
(Exhibit C-1) the other hand grenade (Exhibit D), and, in the presence of witnesses he
signed a statement which contained his answers to question propounded to him by Major
A. Quintos of the Manila Police, who investigated him soon after his arrest (Exhibit E). From a
perusal of his voluntary statement, we are satisfied that it tallies exactly with the
declarations and made by him on the witness stand during the trial of this case.
THE ISSUES
In the brief submitted by counsel de oficio for this appellant, several errors are assigned
allegedly committed by the trial court, namely: first, "in finding the appellant guilty of
murder for the death of Simeon Varela"; second, "in declaring the appellant guilty of the
complex crime of murder and multiple frustrated murder"; third, "in applying sub-section 1 of
article 49 of the Revised Penal Code in determining the penalty to be imposed upon the
accused"; andfourth, "in considering the concurrence of the aggravating circumstances of
nocturnity and of contempt of public authorities in the commission of crime."
The evidence for the prosecution, supported by the brazen statements made by the
accused, shows beyond any shadow of doubt that, when Guillen attended that meeting,
carrying with him two hand grenades, to put into execution his preconceived plan to
assassinate President Roxas, he knew fully well that, by throwing one of those two hand
grenades in his possession at President Roxas, and causing it to explode, he could not
prevent the persons who were around his main and intended victim from being killed or at
least injured, due to the highly explosive nature of the bomb employed by him to carry out
his evil purpose.
Guillen, testifying in his own behalf, in answer to questions propounded by the trial judge
(page 96 of transcript) supports our conclusion. He stated that he performed the act
voluntarily; that his purpose was to kill the President, but that it did not make any difference
to him if there were some people around the President when he hurled that bomb,
because the killing of those who surrounded the President was tantamount to killing the
President, in view of the fact that those persons, being loyal to the President being loyal to
the President, were identified with the latter. In other word, although it was not his main
intention to kill the persons surrounding the President, he felt no conjunction in killing them
also in order to attain his main purpose of killing the President.
The facts do not support the contention of counsel for appellant that the latter is guilty only
of homicide through reckless imprudence in regard to the death of Simeon Varela and of
less serious physical injuries in regard to Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio
Maglalang, and that he should be sentenced to the corresponding penalties for the
different felonies committed, the sum total of which shall not exceed three times the
penalty to be imposed for the most serious crime in accordance with article 70 in relation to
article 74 of the Revised Penal Code.
In throwing hand grenade at the President with the intention of killing him, the appellant
acted with malice. He is therefore liable for all the consequences of his wrongful act; for in
accordance with article 4 of the Revised Penal Code, criminal liability is incurred by any
person committing felony (delito) although the wrongful act done be different from that
which he intended. In criminal negligence, the injury caused to another should be
unintentional, it being simply the incident of another act performed without malice. (People
vs. Sara, 55 Phil., 939.) In the words of Viada, "in order that an act may be qualified as
imprudence it is necessary that either malice nor intention to cause injury should intervene;
where such intention exists, the act should qualified by the felony it has produced even
though it may not have been the intention of the actor to cause an evil of such gravity as
that produced.' (Viada's Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held
by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the
idea of reckless imprudence. (People vs. Nanquil, 43 Phil., 232.) Where such unlawful act is
wilfully done, a mistake in the identity of the intended victim cannot be considered as
reckless imprudence. (People vs. Gona, 54 Phil., 605)
Squarely on the point by counsel is the following decision of the Supreme Court of Spain:
Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar
tabaco, y habiendose negado este a darselo al fiado, se retira a quel sin mediar
entre ambos disputa alguna; pero; trnscurrido un cuarto de hora, hallandose el
estanquero despachando a C, se oye la detonacion de un arma de fuego
disparada por A desde la calle, quedando muertos en el acto C y el estanquero;
supuesta la no intencion en A de matar a C y si solo al estanquero, cabe calificar
la muerte de este de homicidio y la de c de imprudencia temeraria? — La Sala
de lo Criminal de la Auudiencia de Granada lo estimo asi, y condeno al
procesado a catorse anos de reclusion por el homivcidio y a un año de prision
correctional por la imprudencia. Aparte de que la muerte del estanquero debio
calificarse de assesinato y no de homicidio, por haberse ejecutado con aleviosa.
es evidente que la muerte de C, suponiendo que no se propusiera ejecutaria el
228
procesado, no pudo calificarse de imprudencia teme raria, sino que tambien
debio declararsele responsable de la misma, a tenor de lo puesto en este
apartado ultimo del articulo; y que siendo ambas muertes producidas por un solo
hecho, o sea por un solo disparo, debio imponerse al reo la pena del delito de
asesinato en el grado maximo, a tenor de lo dispuesto en el art. 90 del Codigo, o
sea la pena de muerte. Se ve, pues, claramente que en el antedicha sentencia,
aparte de otros articulos del Codigo, se infringio por la Sala la disposicion de este
apartado ultimo del articulo muy principalmente, y asi lo declaro el Tribunal
Supremo en S. de 18 junio de 1872. (Gaceta de 1,0 de agosto.) (I Viada, 5th Ed.,
p. 42.)
Article 48 of the Revised Penal Code provides as follows:
Art. 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.
We think it is the above-quoted article and not paragraph 1 of article 49 that is applicable.
The case before us is clearly governed by the first clause of article 48 because by a single
act, that a throwing highly explosive hand grenade at President Roxas, the accused
committed two grave felonies, namely: (1) murder, of which Simeon Varela was the victim;
and (2) multiple attempted murder, of which President Roxas, Alfredo Eva, Jose Fabio,
Pedro Carrillo and Emilio Maglalang were the injured parties.
The killing of Simeon Varela was attended by the qualifying circumstance of treachery. In
the case of People vs. Mabug-at, supra, this court held that the qualifying circumstance of
treachery may be properly considered, even when the victim of the attack was not the
one whom the defendant intended to kill, if it appears from the evidence that neither of
the two persons could in any manner put up defense against the attack, or become aware
of it. In the same case it was held that the qualifying circumstance of premeditation may
not be properly taken into the account when the person whom the defendant proposed to
kill was different from the one who became his victim.
There can be no question that the accused attempted to kill President Roxas by throwing a
hand grenade at him with the intention to kill him, thereby commencing the commission of
a felony by over acts, but he did not succeed in assassinating him "by reason of some
cause or accident other than his own spontaneous desistance." For the same reason we
qualify the injuries caused on the four other persons already named as merely attempted
and not frustrated murder.
In this connection, it should be stated that , although there is abundant proof that , in
violation of the provisions of article 148 of the Revised Penal Code, the accused Guillen has
committed among others the offense of assault upon a person in authority, for in fact his
efforts were directed towards the execution of his main purpose of eliminating President
Roxas for his failure to redeem his electoral campaign promises, by throwing at him in his
official capacity as the Chief Executive of the nation the hand grenade in question, yet, in
view of the appropriate allegation charging Guillen with the commission of said offense, we
shall refrain making a finding to that effect.
The complex crimes of murder and multiple attempted murder committed by the accused
with the single act of throwing a hand grenade at the President, was attended by the
various aggravating circumstances alleged in the information, without any mitigating
circumstance. But we do not deem it necessary to consider said aggravating
circumstances because in any event article 48 of the Revised Penal Code above-quoted
requires that the penalty for the most serious of said crimes be applied in its maximum
period. The penalty for murder is reclusion temporal in its maximum period to death. (Art.
248.)
It is our painful duty to apply the law and mete out to the accused the extreme penalty
provided by it upon the facts and circumstances hereinabove narrated.
The sentence of the trial court being correct, we have no alternative but to affirm it, and
we hereby do so by a unanimous vote. The death sentence shall be executed in
accordance with article 81 of the Revised Penal Code, under authority of the Director of
Prisons, on such working day as the trial court may fix within 30 days from the date the
record shall have been remanded. It is so ordered.
Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and
Torres, JJ., concur.

229

EN BANC
G.R. No. L-38773 December 19, 1933
THE PEOPLE OF THE PHILIPPINE
ISLANDS, Plaintiff-Appellee, vs. GINES
ALBURQUERQUE Y SANCHEZ, Defendant-
Appellant.
Gibbs and McDonough and Roman Ozaeta, for
appellant.
Office of the Solicitor-General Hilado for appellee.
AVANCEÑA, C.J.:
The judgment appealed from finds the appellants
Gines Alburquerque guilty of the crime of homicide
committed on the person of Manuel Osma and
sentences him to eight years and one day of prision
mayor, and to indemnify the heirs of the deceased
in the sum of P1,000, with costs. chanroble svi rtualaw lib rary
The appellant herein, who is a widower of fifty-five
years of age and father of nine living children, has
been suffering from partial paralysis for some time,
walks dragging one leg and has lost control of the
movement of his right arm. He has been unable to
work since he suffered the stroke of paralysis. One
of his daughters was named Maria and another, are
married, while still another one is a nun. With the
exemption of the other married daughter and the
nun, of all of them, including the appellant, live
with Maria upon whom they depend for support.
virtua l law lib rary
chanroblesvi rtua lawlib rary cha nrob les
Among the daughters living with Maria, one named
Pilar became acquainted and had intimate relations
later with the deceased Manuel Osma about the end
of the year 1928. It was then that the appellant
became acquainted with the deceased who
frequently visited Pilar in his house. The relations
between Pilar and the deceased culminated in
Pilar's giving birth to a child. The appellant did not
know that his daughter's relations with the
deceased had gone to such extremes, that he had
to be deceived with the information that she had
gone to her godfather's house in Singalong, when
in fact she had been taken to the Chinese Hospital
chanro bles vi rtua l law lib ra ry
for delivery. The appellant learned the truth only
when Pilar returned home with her child. c han roblesv irt ualawli bra ry chan roble s virtual law l ibra ry
Naturally the appellant was deeply affected by this
incident, since which time he has appeared sad and
worried not only because of the dishonor it brought
upon his family but also because the child meant an
chanrob les vi rtual law lib rary
added burden to Maria upon whom they all
depended for support. For some time the appellant
wrote letters, that at times were hostile and
threatening and at other times entreating the
deceased to legitimize his union with Pilar by
marrying her, or at least, to support her and his
child. Although the deceased agreed to give the
child a monthly allowance by way of support, he
never complied with his promise. chanroble svi rtualaw lib rary chanrob les vi rtual law lib rary
230
The appellant was in such a mood when he
presented himself one day at the office where the
deceased worked and asked leave of the manager
thereof to speak to Osma. They both went
downstairs. What happened later, nobody
witnessed. But the undisputed fact is that on that
occasion the appellant inflicted a wound at the base
of the neck of the deceased, causing his death.
After excluding the improbable portions thereof, the
court infers from the testimony of the appellant
that he proposed to said deceased to marry his
daughter and that, upon hearing that the latter
refused to do so, he whipped out his penknife.
Upon seeing the appellant's attitude, the deceased
tried to seize him by the neck whereupon the said
appellant stabbed him on the face with the said
penknife. Due to his lack of control of the
movement of his arm, the weapon landed on the
base of the neck of the deceased.chanroble svi rtualaw l ibra ry
The trial court found that the appellant did not
intend to cause so grave an injury as the death of
the deceased. We find that his conclusion is
supported by the evidence. In his testimony the
appellant emphatically affirmed that he only wanted
to inflict a wound that would leave a permanent
scar on the face of the deceased, or one that would
compel him to remain in the hospital for a week or
two but never intended to kill him, because then it
would frustrate his plan of compelling him to marry
or, at least, support his daughter. The appellant
had stated this intention in some of his letters to
the deceased by way of a threat to induce him to
accept his proposal for the benefit of his daughter.
That the act of the appellant in stabbing the
deceased resulted in the fatal wound at the base of
his neck, was due solely to the fact hereinbefore
mentioned that appellant did not have control of his
right arm on account of paralysis and the blow,
although intended for the face, landed at the base
chanroblesv irt ualawli bra ry chan robles v irt ual law l ibra ry of the neck.chanroblesvi rtua lawlib rary c hanro bles vi rt ual law li bra ry
Therefore, the mitigating circumstance of lack of
intention to cause so grave an injury as the death
of the deceased as well as those of his having
voluntarily surrendered himself to the authorities,
and acted under the influence of passion and
obfuscation, should be taken into consideration in
favor of the appellant. chanroblesvi rt ualawlib ra ry chanrobles vi rt ual law li bra ry
Under the facts above stated, we cannot entertain
the appellant's contention that he acted in
chan robles v irt ual law li bra ry
legitimate self-defense inasmuch as he provoked
and commenced the aggression by whipping out
and brandishing his penknife. chanrob lesvi rtualaw lib rary cha nrob les vi rtual law lib rary
The defense likewise claims that, at all events,
article 49 of the Revised Penal Code, which refers
to cases where the crime committed is different
from that intended by the accused, should be
applied herein. This article is a reproduction of
article 64 of the old Code and has been interpreted
as applicable only in cases where the crime befalls
a different person (decisions of the Supreme Court
of Spain of October 20, 1897, and June 28,1899),
which is not the case herein. chanroblesv irt ualawli bra ry chan robles v irt ual law l ibra ry
231
The facts as herein proven constitute the crime of
homicide defined and penalized in article 249 of the
Revised Penal Code with reclusion temporal. In
view of the concurrence therein of three mitigating
circumstances without any aggravating
circumstance, the penalty next lower in degree,
that is prision mayor, should be imposed.
Wherefore, pursuant to the provisions of Act No.
4103, the appellant is hereby sentenced to suffer
the indeterminate penalty of from one (1) year
ofprision correccional to eight (8) years and (1) day
of prision mayor, affirming the judgment appealed
from in all other respects, with the costs. So
ordered. chanroble svi rtualaw lib rary chan rob les vi rtual law lib rary
Street, Abad Santos, Vickers, and Butte, JJ.,
concur.
G.R. No. L-10126
SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA,
LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN, represented
by their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN,
plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-
appellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina
Transportation, operated by its owner defendant Mariano Medina under a
certificate of public convenience, left the town of Amadeo, Cavite, on its way
to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were
about eighteen passengers, including the driver and conductor. Among the
passengers were Juan Bataclan, seated beside and to the right of the driver,
Felipe Lara, sated to the right of Bataclan, another passenger apparently
from the Visayan Islands whom the witnesses just called Visaya, apparently
chanroblesv irt ualawli bra ry chan robles v irt ual law l ibra ry
not knowing his name, seated in the left side of the driver, and a woman
named Natalia Villanueva, seated just behind the four last mentioned. At
about 2:00 o'clock that same morning, while the bus was running within the
jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began
to zig-zag until it fell into a canal or ditch on the right side of the road and
turned turtle. Some of the passengers managed to leave the bus the best
way they could, others had to be helped or pulled out, while the three
passengers seated beside the driver, named Bataclan, Lara and the
Visayan and the woman behind them named Natalia Villanueva, could not
get out of the overturned bus. Some of the passengers, after they had
clambered up to the road, heard groans and moans from inside the bus,
particularly, shouts for help from Bataclan and Lara, who said they could not
get out of the bus. There is nothing in the evidence to show whether or not
the passengers already free from the wreck, including the driver and the
conductor, made any attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or shouts for help were
made to the houses in the neighborhood. After half an hour, came about ten
Republic of the Philippines men, one of them carrying a lighted torch made of bamboo with a wick on
SUPREME COURT one end, evidently fueled with petroleum. These men presumably approach
Manila the overturned bus, and almost immediately, a fierce fire started, burning
and all but consuming the bus, including the four passengers trapped inside
EN BANC it. It would appear that as the bus overturned, gasoline began to leak and
escape from the gasoline tank on the side of the chassis, spreading over
and permeating the body of the bus and the ground under and around it,
October 22, 1957
and that the lighted torch brought by one of the men who answered the call
for help set it on fire.
That same day, the charred bodies of the four deemed passengers inside
the bus were removed and duly identified that of Juan Bataclan. By reason
of his death, his widow, Salud Villanueva, in her name and in behalf of her
five minor children, brought the present suit to recover from Mariano Medina
compensatory, moral, and exemplary damages and attorney's fees in the
total amount of P87,150. After trial, the Court of First Instance of Cavite
awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the
value of the merchandise being carried by Bataclan to Pasay City for sale
and which was lost in the fire. The plaintiffs and the defendants appealed
the decision to the Court of Appeals, but the latter endorsed the appeal to us
because of the value involved in the claim in the complaint.
232
Our new Civil Code amply provides for the responsibility of common carrier
to its passengers and their goods. For purposes of reference, we are
reproducing the pertinent codal provisions:
ART. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extraordinary
diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances
of each case.
Such extraordinary diligence in the vigilance over the goods is
further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7,
while the extra ordinary diligence for the safety of the passengers is
further set forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers
safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with a due regard for all
the circumstances.
ART. 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed in articles 1733 and 1755
ART. 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the former's
employees, although such employees may have acted beyond the
scope of their authority or in violation of the order of the common
carriers.
This liability of the common carriers does not cease upon proof that
they exercised all the diligence of a good father of a family in the
selection and supervision of their employees.
ART. 1763. A common carrier responsible for injuries suffered by a
passenger on account of the willful acts or negligence of other
passengers or of strangers, if the common carrier's employees
through the exercise of the diligence of a good father of a family
could have prevented or stopped the act or omission.
We agree with the trial court that the case involves a breach of contract of
transportation for hire, the Medina Transportation having undertaken to
carry Bataclan safely to his destination, Pasay City. We also agree with the
trial court that there was negligence on the part of the defendant, through
233
his agent, the driver Saylon. There is evidence to show that at the time of
the blow out, the bus was speeding, as testified to by one of the
passengers, and as shown by the fact that according to the testimony of the
witnesses, including that of the defense, from the point where one of the
front tires burst up to the canal where the bus overturned after zig-zaging,
there was a distance of about 150 meters. The chauffeur, after the blow-out,
must have applied the brakes in order to stop the bus, but because of the
velocity at which the bus must have been running, its momentum carried it
over a distance of 150 meters before it fell into the canal and turned turtle.
There is no question that under the circumstances, the defendant carrier is
liable. The only question is to what degree. The trial court was of the opinion
that the proximate cause of the death of Bataclan was not the overturning of
the bus, but rather, the fire that burned the bus, including himself and his co-
passengers who were unable to leave it; that at the time the fire started,
Bataclan, though he must have suffered physical injuries, perhaps serious,
was still alive, and so damages were awarded, not for his death, but for the
physical injuries suffered by him. We disagree. A satisfactory definition of
proximate cause is found in Volume 38, pages 695-696 of American
jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:
. . . 'that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred.' And more
comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in
motion, all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the
injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first
event should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that
an injury to some person might probably result therefrom.
It may be that ordinarily, when a passenger bus overturns, and pins down a
passenger, merely causing him physical injuries, if through some event,
unexpected and extraordinary, the overturned bus is set on fire, say, by
lightning, or if some highwaymen after looting the vehicle sets it on fire, and
the passenger is burned to death, one might still contend that the proximate
cause of his death was the fire and not the overturning of the vehicle. But in
the present case under the circumstances obtaining in the same, we do not
hesitate to hold that the proximate cause was the overturning of the bus, this
for the reason that when the vehicle turned not only on its side but
completely on its back, the leaking of the gasoline from the tank was not
unnatural or unexpected; that the coming of the men with a lighted torch
was in response to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor themselves, and that
because it was dark (about 2:30 in the morning), the rescuers had to carry a
light with them, and coming as they did from a rural area where lanterns and
flashlights were not available; and what was more natural than that said
rescuers should innocently approach the vehicle to extend the aid and effect
the rescue requested from them. In other words, the coming of the men with
a torch was to be expected and was a natural sequence of the overturning
of the bus, the trapping of some of its passengers and the call for outside
help. What is more, the burning of the bus can also in part be attributed to
the negligence of the carrier, through is driver and its conductor. According
to the witness, the driver and the conductor were on the road walking back
and forth. They, or at least, the driver should and must have known that in
the position in which the overturned bus was, gasoline could and must have
leaked from the gasoline tank and soaked the area in and around the bus,
this aside from the fact that gasoline when spilled, specially over a large
area, can be smelt and directed even from a distance, and yet neither the
driver nor the conductor would appear to have cautioned or taken steps to
warn the rescuers not to bring the lighted torch too near the bus. Said
negligence on the part of the agents of the carrier come under the codal
provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.
As regard the damages to which plaintiffs are entitled, considering the
earning capacity of the deceased, as well as the other elements entering
into a damage award, we are satisfied that the amount of SIX THOUSAND
(P6,000) PESOS would constitute satisfactory compensation, this to include
compensatory, moral, and other damages. We also believe that plaintiffs are
entitled to attorney's fees, and assessing the legal services rendered by
plaintiffs' attorneys not only in the trial court, but also in the course of the
appeal, and not losing sight of the able briefs prepared by them, the
attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for
the loss of merchandise carried by the deceased in the bus, is adequate and
will not be disturbed.
There is one phase of this case which disturbs if it does not shock us.
According to the evidence, one of the passengers who, because of the
injuries suffered by her, was hospitalized, and while in the hospital, she was
visited by the defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling said inspector
to have the tires of the bus changed immediately because they were already
old, and that as a matter of fact, he had been telling the driver to change the
said tires, but that the driver did not follow his instructions. If this be true, it
goes to prove that the driver had not been diligent and had not taken the
necessary precautions to insure the safety of his passengers. Had he
changed the tires, specially those in front, with new ones, as he had been
instructed to do, probably, despite his speeding, as we have already stated,
234
the blow out would not have occurred. All in all, there is reason to believe
that the driver operated and drove his vehicle negligently, resulting in the
death of four of his passengers, physical injuries to others, and the complete
loss and destruction of their goods, and yet the criminal case against him,
on motion of the fiscal and with his consent, was provisionally dismissed,
because according to the fiscal, the witnesses on whose testimony he was
banking to support the complaint, either failed or appear or were reluctant to
testify. But the record of the case before us shows the several witnesses,
passengers, in that bus, willingly and unhesitatingly testified in court to the
effect of the said driver was negligent. In the public interest the prosecution
of said erring driver should be pursued, this, not only as a matter of justice,
but for the promotion of the safety of passengers on public utility buses. Let
a copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages awarded by
the trial court are increased from ONE THOUSAND (P1,000) PESOS TO
SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO
EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the
attorney's fees, respectively, the decision appealed is from hereby affirmed,
with costs.
Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador,
Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12155 February 2, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avanceña for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly
weapon was used. The blow was directed toward a vital part of the body.
The aggressor stated his purpose to kill, thought he had killed, and threw
the body into the bushes. When he gave himself up he declared that he had
killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted. The
accused rushed upon the girl suddenly and struck her from behind, in part at
least, with a sharp bolo, producing a frightful gash in the lumbar region and
slightly to the side eight and one-half inches long and two inches deep,
severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl for
the reason that she had theretofore charged him criminally before the local
officials with having raped her and with being the cause of her pregnancy.
He was her mother's querido and was living with her as such at the time the
crime here charged was committed.
That the accused is guilty of some crime is not denied. The only question is
the precise crime of which he should be convicted. It is contended, in the
first place, that, if death has resulted, the crime would not have been murder
but homicide, and in the second place, that it is attempted and not frustrated
homicide.
As to the first contention, we are of the opinion that the crime committed
would have been murder if the girl had been killed. It is qualified by the
circumstance of alevosia, the accused making a sudden attack upon his
victim from the rear, or partly from the rear, and dealing her a terrible blow in
the back and side with his bolo. Such an attack necessitates the finding that
it was made treacherously; and that being so the crime would have been
qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was
frustrated and not attempted murder. Article 3 of the Penal Code defines a
frustrated felony as follows:
A felony is frustrated when the offender performs all the acts of
execution which should produce the felony as a consequence, but
which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the commission
of the felony directly by overt acts, and does not perform all the acts
235
of execution which constitute the felony by reason of some cause or
accident other than his own voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact that the
defendant performed all of the acts which should have resulted in the
consummated crime and voluntarily desisted from further acts. A crime
cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by
some outside cause from performing all of the acts which should produce
the crime. In other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which intervenes
and compels him to stop prior to the moment when he has performed all of
the acts which should produce the crime as a consequence, which acts it is
his intention to perform. If he has performed all of the acts which should
result in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential element which
distinguishes attempted from frustrated felony is that, in the latter, there is
no intervention of a foreign or extraneous cause or agency between the
beginning of the commission of the crime and the moment when all of the
acts have been performed which should result in the consummated crime;
while in the former there is such intervention and the offender does not
arrive at the point of performing all of the acts which should produce the
crime. He is stopped short of that point by some cause apart from his
voluntary desistance.
To put it in another way, in case of an attempt the offender never passes the
subjective phase of the offense. He is interrupted and compelled to desist by
the intervention of outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes the subjective phase is
completely passed. Subjectively the crime is complete. Nothing interrupted
the offender while he was passing through the subjective phase. The crime,
however, is not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was necessary to
commit the crime. If the crime did not result as a consequence it was due to
something beyond his control.
The subjective phase is that portion of the acts constituting the crime
included between the act which begins the commission of the crime and
the last act performed by the offender which, with the prior acts, should
result in the consummated crime. From that time forward the phase is
objective. It may also be said to be that period occupied by the acts of the
offender over which he has control — that period between the point where
he begins and the points where he voluntarily desists. If between these two
points the offender is stopped by reason of any cause outside of his own
voluntary desistance, the subjective phase has not been passed and it is an
attempt. If he is not so stopped but continues until he performs the last act, it "Contrary to law. [1]

is frustrated.
The antecedent facts leading to the filing of the information,
That the case before us is frustrated is clear.
according to the prosecution, are hereunder narrated.
The penalty should have been thirteen years of cadena temporal there At around eleven oclock in the morning of 05 June 1990, Sgt.
being neither aggravating nor mitigating circumstance. As so modified, the Pedro I. Cerrillo, Jr., the Officer-in-Charge of the Intelligence and
judgment is affirmed with costs. So ordered. Drug Law Enforcement Unit of Police Station No. 2 (located in
Tondo, Manila) of the Western Police District, was in the vicinity of
Torres and Araullo, JJ., concur.
Carson and Trent, JJ., concur in the result.
North Harbor routinely scouting for information from his civilian
informants. Near the gate fronting Pier 10, Danny, a porter and
member of the Anti-Drug Abuse Movement ("ADAM"), approached
FIRST DIVISION and informed Sgt. Cerrillo that a free-lance porter at the North
Harbor, a.k.a. Bulag, was looking for prospective buyers of
marijuana. Sgt. Cerrillo instructed Danny to say that he had come
[G.R. No. 99838. October 23, 1997] across a couple who would be interested in buying the prohibited
drug. Sgt. Cerrillo had then in mind a possible buy-bust operation.
The buy-bust plan was broached to Patrolwoman Shirley
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Maramot who was manning Police Station No. 2. Fellow police
officers were at the time on duty at the U.S. Embassy where a
vs. ERNESTO ENRIQUEZ y ROSALES and "rally" by certain activists was in progress. Using his own owner-
WILFREDO ROSALES y YUCOT, accused- type jeep, Sgt. Cerrillo repaired to his house at 727 Moriones St.,
appellants. Tondo, Manila, to procure ten (10) pieces of one hundred peso
bills[2] to be used in the projected buy-bust operation.[3] He
DECISION thereupon had, at a store near the police station, xerox copies
made of the bills that can readily show the serial numbers which
VITUG, J.:
he had also noted down in his personal notebook.[4]
Ernesto Enriquez y Rosales and Wilfredo Rosales y Yucot Back at the police station, Sgt. Cerrillo handed the buy-bust
were charged with having violated Section 4, Article II, of Republic money to Pat. Maramot. Since there were no other "operatives" at
Act ("R.A.") No. 6425 (Dangerous Drugs Act of 1972), as the station available for the operation, Sgt. Cerrillo sought the
amended, in an information that read: assistance of ADAM members Joseph Mendoza, Amado Betita
and Alex Trinidad. The team, including "Danny," were briefed by
That on or about June 5, 1990, in the City of Manila, Philippines, Sgt. Cerrillo. The plan called for Pat. Maramot and Mendoza to
the said accused, conspiring and confederating together and pose as the couple interested in buying marijuana and for Trinidad,
mutually helping each other, not being authorized by law to sell, Betita and Sgt. Cerrillo to act as the "back-up" men. Pat. Maramot
was to nod her head as soon as the sale was consummated.[5]
deliver, give away to another or distribute any prohibited drug,
did then and there wilfully and unlawfully sell or offer for sale At about 11:35 a.m., the group, using two vehicles, proceeded
six (6) kgrms of dried flowering tops of marijuana stuffed in a to the vicinity of Pier 10 at the North Harbor. At the corner of
plastic sack, which is a prohibited drug. Moriones Street and Radial Road 10, Pat. Maramot and Mendoza
236
sat on a bench by a store to wait for the return of Danny, who had
meanwhile left to fetch Bulag, while Sgt. Cerrillo, Trinidad and
Betita strategically positioned themselves at a billiard hall, mingling
with spectators and pretending to be bystanders. The billiard hall
was only about ten meters away from Pat. Maramots group, and it
afforded a good view of the place.[6]
Moments later, Danny arrived with accused Wilfredo Rosales,
a.k.a. Bulag. Rosales talked with the poseur-buyers. After about
five minutes, the poseur-buyers, Rosales and the informant
entered an alley, walking along shanties, until they reached a
house numbered 1349.
A half-naked man in green shorts emerged from one of the
doors of the house. The man, later identified to be accused
Ernesto Enriquez, a.k.a. Nene, asked Pat. Maramot in Visayan
accent, Dala mo ba ang pera? Pat. Maramot took out from her
pocket the bundle of the marked money and showed it to
Enriquez. The latter allowed Maramots group to enter the
house.[7] Minutes later, as so pre-arranged, Sgt. Cerrillo followed
and proceeded to house No. 1349. Finding the door closed, he
went around the house. Sgt. Cerrillo saw Pat. Maramot, Mendoza
and the informant exit through the back door. Rosales, carrying a
plastic bag, was with them. Again, Sgt. Cerrillos group followed
Pat. Maramot and Rosales until the latter reached a nearby waiting
shed for jeepney passengers. At this point, Pat. Maramot
announced that she was a policewoman. Sgt. Cerrillo held
Rosales and took his bag. Sgt. Cerrillo opened the sack, and
inside it was another sack containing marijuana wrapped in plastic.
The group hurriedly returned to house No. 1349 only to find
that Enriquez had by then left the premises. The team boarded the
police service jeep and moved on to Kagitingan Street at the
Lakandula detachment. Sgt. Cerrillo interviewed Rosales. Upon
being informed that Enriquez would usually visit the Pier 10 area,
Sgt. Cerrillo proceeded to the place. After scouring the area, a
security guard supervisor at the pier, who accompanied the group,
spotted Enriquez walking near the pier. Sgt. Cerrillo picked up
Enriquez and brought him to the Lakandula detachment for
investigation. Later, Minda, the wife of Enriquez, arrived.
Someone, at the request of Enriquez, had fetched her to "bring the
money." Enriquez told her to return the amount to Sgt. Cerrillo.
237
She took out from her wallet its contents three of which were the
100-peso marked bills.[8] Minda became hysterical. She embraced
Sgt. Cerrillo and begged him to forgive her husband. Sgt. Cerrillo
told her to instead see the station commander.[9]
Sgt. Cerrillo apprised Enriquez and Rosales of their
constitutional rights. Sgt. Cerrillo advised Enriquez, in front of the
latters wife, that he should look for a lawyer so that his statement
could be taken. Sgt. Cerrillo prepared the request for the
examination of the evidence taken from the accused and the
affidavit[10] of the latter's arrest.[11]
On the evening of 05 June 1990, Minda and other relatives of
Enriquez approached Sgt. Cerrillo for the possibility of "settling"
the case. During the trial, another relative, a senior supervising
agent of the Napolcom, also approached and requested Sgt.
Cerrillo to help out.[12]
Patrolwoman Shirley Maramot, 37 years old, assigned at
Police Station No. 2, corroborated Sgt. Cerrillo. She testified that
she was requested by Sgt. Cerrillo to be the poseur-buyer in the
buy-bust operation conducted in the morning of 05 June 1990
along Alinian Street, Tondo, Manila. After Sgt. Cerrillo had
conducted a briefing and provided her with the buy-bust money,
Pat. Maramot went with Mendoza, who portrayed the role of her
husband, and the informer to Radial 10 at Pier 14. When Wilfredo
Rosales turned up, he asked if she had cash with her. After being
shown the money, Rosales led her to a house numbered 1349.
The poseur-buyers were made to wait momentarily while Rosales
talked to Ernesto Enriquez. Rosales later signaled Pat. Maramot,
who was around four (4) meters away, to again show her
money. Forthwith, Pat. Maramot was led to the house of
Enriquez. Once inside a small room, Enriquez locked the
door. Enriquez asked Pat. Maramot how much money she
had. She replied that she only had P1,000.00 since she was not
sure that she could get as much as the one-half sack of the
contraband shown to her. Pat. Maramot was told she could get the
lot for P4,500.00. She said she was willing to get the lot if she
could be trusted with the balance of the price. Enriquez
agreed. Pat. Maramot handed over the P1,000.00 to Enriquez.
The latter was about to hand over the marijuana when he decided
to, instead, have Rosales personally deliver the marijuana.
 Pat. Maramot followed Rosales until Maramot finally
introduced herself as a policewoman. Rosales posthaste
attempted to board a passing passenger jeep but Pat. Maramot
and Sgt. Cerrillo, who had rushed in, were able to timely get hold
of Rosales.[13]
NBI Forensic Chemist George J. de Lara issued, on 06 June
1990, a certification to the effect that the specimen submitted to
him was positive for marijuana.[14] Sgt. Cerrillo prepared a case
report[15] and the respective booking sheet and arrest report.[16] The
official report of the NBI forensic chemist, dated 07 June 1990,
disclosed the following findings:
Weight of specimen = 6.00 kilograms (before examination)
5.999 kilograms (after examination)
Microscopic, chemical and chromatographic examinations made
on the above-mentioned specimen gave POSITIVE RESULTS
for MARIHUANA. [17]
On the same day, Station Commander Benjamin de Jesus
endorsed the case against Enriquez and Rosales to the City
Prosecutor for further proceedings. The inquest fiscal
recommended[18] that the two accused be charged with violation of
Section 4, Article II, Republic Act No. 6425, as amended.
The defense gave a different version of the incident.
Accused Rosales testified that he had come from Bohol to
Manila in April of 1990 and stayed with accused Enriquez, his
cousin, while working as an extra porter of William Lines. At
around 11:30 in the morning of 05 June 1990, he was on his way
home from work when a male person whom he recognized only by
face sought his assistance in carrying a sack to a place where
jeepney commuters would take their ride. The sack was colored
white and emitted the smell of dried fish. He was promised P20 in
exchange for his help. At a junction, a security guard whom he
later identified to be Homer Ciesta, blocked and pushed him inside
a vehicle where he was promptly handcuffed. During the
commotion, the owner of the sack disappeared.[19] Rosales was
238
brought to a house near the slum area in Parola where P20,000
was quoted for his release by Sgt. Cerrillo.[20] When Rosales did not
heed the demand, he was brought first to the Lakandula
detachment and then to Station No. 2 of the Western Police
District.
On his part, Enriquez, a resident of 1349-C Alinian Street,
Tondo, Manila, claimed that he was in the business of purchase
and sale of oil at the North Harbor, under the business name of
Nie-Men R. Enriquez Enterprises,[21] being the grantee of a permit
to operate an oil sludge collection service.[22] He was under contract
by the Lorenzo Shipping Corporation from January 1983 to April
1984.He was also the Vice-President of the Kapisanan ng
Maralitang Naninirahan ng Tondo, Inc. a civic organization and a
recipient of a certification of merit from the National Steel
Corporation.[23]
Recounting his whereabouts in the morning of 05 June 1990,
Enriquez said he left his house at around 11:45 a.m. for Pier 10 of
the North Harbor, barely a thirty-minute walk away from his
residence, to meet his brother, Victor Enriquez, at the pier. He had
with him P2,000 in P100 denominations stacked in his wallet.
Robinson Lumbis, a neighbor who was road testing his cab along
North Harbor, saw and greeted Enriquez.[24] Betty Quimbo, another
neighbor, later saw Enriquez with his brother.[25] Appellant took his
lunch at home and thereafter hurriedly returned to the pier. He was
not able to spend the night in his house. The following day, 06
June 1990, at around two oclock in the afternoon, Enriquez went
to the maintenance section of the Lorenzo Shipping Lines to pay
for the oil he had obtained from its vessels. Homer Ciesta, the
officer-in-charge of the security guards of the shipping line, invited
Enriquez, and the latter agreed, to join him (Ciesta) earn some
"extra money." The two left for the squatters area in Parola and,
once there, Ciesta told Enriquez to approach a certain person,
later identified to be Sgt. Cerrillo, who instantly handcuffed
him. Sgt. Cerrillo demanded P20,000 in exchange for his
freedom. When he refused to give in to the demand, Enriquez was
brought to the Lakandula detachment where the P2,000 he had in
his wallet was taken and presented in evidence as the amount
used in the buy-bust operation. He was brought to Station No. 2 of
the WPD for investigation.[26] Homer Ciesta went to tell Arminda,
the wife of Enriquez, to bring some money to the Lakandula police
detachment. Arriving at the detachment, someone approached
Arminda and asked her whether she had the money. She replied
in the affirmative. The person then grabbed her wallet, took its
contents and later returned the empty wallet.[27]
On 24 January 1991, the trial court, giving credence to the
evidence submitted by the prosecution, found both accused guilty
beyond reasonable doubt of the crime charged and sentenced
each of them to life imprisonment and to pay a fine of P30,000.
In their appeal to this Court, Rosales and Enriquez have filed
separate briefs.
Appellant Enriquez insists on his innocence and faults the trial
court for giving too much credence to the testimony of Sgt. Cerrillo
and Pat. Maramot who, Enriquez asserts, have merely framed
them up for selfish motives. He theorizes that it would seem
incredible for either Pat. Maramot or Sgt. Cerrillo to have left and
abandoned Station No. 2 considering that the Station Commander
and his men have all been posted in the then on-going rally at the
U.S. Embassy. He downgrades the prosecutions asseveration that
Pat. Maramot, being unarmed, could not effect his immediate
arrest, and that Sgt. Cerrillo has so used his personal funds as
marked money. Enriquez also questions the six-day delay in the
filing of the information.
The Court is scarcely impressed.
Simply said, appellant Enriquez would assail the credibility of
the two prosecution witnesses. Almost always, the evaluation
made by the trial court on the credibility of witnesses is viewed
with respect. The trial judge, who has the distinct advantage of
being able to observe closely the demeanor and deportment of
witnesses on the stand as well as the manner in which they testify,
undoubtedly can better determine than anyone else if such
witnesses are telling or are not telling the truth. He is in an ideal
position to weigh conflicting testimonies and unless, as so
repeatedly said, he has obviously discarded or missed certain
facts of substance and significance that, otherwise, would have
altered his judgment, an assessment on credibility made by him
should indeed deserve approbation by an appellate court. [28]
239
The Court, in the case at bench, has scrutinized the records,
and it finds no justification for holding differently from the findings
made by the trial court.
In drug related cases, particularly in a buy-bust operation, the
contention that the accused has merely been framed up by law
enforcement personnel for selfish motives is quite often raised by
the defense. For this claim to prosper, the evidence adduced must
be clear and convincing[29] in order to overcome the presumption
that government officials have performed their duties in a regular
and proper manner.[30] Appellant, regrettably, has miserably failed
to substantiate his allegations in this respect.
Enriquez questions the six-day delay in the filing of the
information against him which he attributes to an extortion attempt
made on him. Like an alleged frame-up, a supposed extortion by
police officers has, too, been a standard defense in drug cases.
Appellants failure to offer evidence, independently of his bare
claim of extortion, suggests that this defense could either be a
fabrication or an afterthought. If, truly, the arresting police officers
have tried to extort money from him, it should have behooved
Enriquez to come forward with the proper charges against the
erring police officers.[31]No criminal or administrative charges
appear to have been filed by him. It is equally strange that the
supposed extortions neither appeared in appellant's counter-
affidavit[32] nor in his affidavit[33] both prepared by his counsel of
choice. In any event, the Court does not see any real undue delay
on the part of the police. The station commander filed the case
with the prosecutor on 07 June 1990, the same day that the NBI
forensic chemists official report was released. The transmittal
letter,[34] of the station commander, bears the recommendation,
likewise dated 07 June 1990, of the inquest fiscal finding a
violation of Section 4, Article II, of R.A. No. 6425.
Appellant Enriquez surmised that it was strange for Sgt.
Cerrillo and Pat. Maramot to have left the police station unmanned
just to conduct a buy-bust operation. Sgt. Cerrillo explained that,
being the Intelligence Officer in Station No. 2, he would spend
most of his duty hours in the field.[35] He chose Pat. Maramot to be
the poseur-buyer because she was not well known in the place of
operation. While she had a desk job she could also be assigned
elsewhere when the situation would demand. Furthermore, the
buy-bust operation was conducted in an area not far from the "WITNESS:
police station (testified to be at an approximate distance of "It could not be heard because in that alley there were
between the Manila City Hall and the Luneta Park[36]). adjacent rooms, sir, `kuwarto-kuwarto.'
On cross-examination, Pat. Maramot explained why she could "ATTY. ESMERO:
not arrest Enriquez when he received the money. She testified:
"Now, you said that you went out through the back
ATTY. ESMERO: door. Who was together with you when you went out at the
back door?
"During the time that you were in that room together
with Enriquez and you said that Enriquez took up a half "WITNESS:
sack of marijuana under the table, did it not occur to your
mind to arrest him immediately during that time and "Joseph, the one who pretended to be my husband,
introduced yourself as a policewoman together with your sir.
husband? "ATTY. ESMERO:
"WITNESS: "How about Rosales?
"If you will place yourself in my situation, I am so "WITNESS:
small to arrest a person and I am not so big so I have to
wait for my companions, sir. "He passed through the front door together with the
informant, sir.
"INTERPRETER:
"ATTY. ESMERO:
"Witness pointed to the Accused.
"And the front door was where Pat. Cerrillo was
"ATTY. ESMERO: positioned?
"How about your supposed husband? "WITNESS:
"WITNESS: "No, sir. Cerillo was positioned at the side. He could not
"Besides we did not bring anything even a gun meet them immediately because when you go out at that
because they are outside, sir. door, it is already a street.[37]

"ATTY. ESMERO: The use of Sgt. Cerrillos own money in the buy-bust operation
could be expected. Police Station No. 2 was not logistically
"You could have immediately went (sic) out of the funded.[38] In the buy-bust operation, only three 100-peso bills of the
door and after that contacted Cerrillo. You could have told
marked money were recovered which, unfortunately, were lost to
him immediately because he was about seven (7) meters
from that room?
thieves when Sgt. Cerrillo had momentarily parked his jeep within
the vicinity of the police station on 11 July 1990.[39] He reported this
"WITNESS: loss along with the loss of an ammunition belt pack with six (6) live
"The door was locked, sir. cal. .38 bullets and his Parker ballpen.[40] At any rate, the non-
presentation of the buy-bust money could not adversely affect the
"ATTY. ESMERO: case against appellants.[41]
"You could have knocked at the door if you want to Alibi is definitely a weak defense although it may occasionally
call him?
prove to be a good plea. In order to be effective, however, this

240
defense requires proof that it would be physically impossible for
the accused to be at the locus criminis at the time of the
commission of the crime. Where there is even the least chance for
the accused to be present at the crime scene, the alibi seldom will
hold water.[42] Most significantly, the defense of alibi crumbles in the
face of a positive identification of the malefactor.[43]
In his case, appellant Rosales argues that to sustain a
conviction for the crime of selling marijuana, the sale must be
clearly established which, he asserts, the prosecution has failed to
do.
The Court cannot sustain the argument.
Under Section 4, Article II, of R.A. No. 6425,[44] as amended,
the law penalizes not only the sale but also the delivery of
prohibited drugs.
Section 4. Sale, Administration, Delivery, Distribution and
Transportation of Prohibited Drugs. The penalty of life
imprisonment to death and a fine ranging from twenty thousand
to thirty thousand pesos shall be imposed upon any person who,
unless authorized by law, shall sell, administer, deliver, give
away to another, distribute, dispatch in transit or transport any
prohibited drug, or shall act as a broker in any of such
transactions. If the victim of the offense is a minor, or should a
prohibited drug involved in any offense under this Section be the
proximate cause of the death of a victim thereof, the maximum
penalty herein provided shall be imposed. (Italics supplied.)
Selling is only one of the acts covered by the statutory
provision. The law defines the word deliver as a persons act of
knowingly passing a dangerous drug to another personally or
otherwise, and by any manner with or without consideration.
Delivery, although not incidental to a sale, is a punishable act by
itself; while sale may involve money or any other material
consideration,[45] delivery may be with or without consideration.
Appellant Rosales contends that while criminal intent need not
generally be proved in crimes that are mala prohibita, knowledge
that the sack in his possession contained a prohibited drug must
241
nevertheless be established. Indeed, Section 2(f) of the
Dangerous Drugs Law requires that a person who delivers a
prohibited drug must knowingly pass such contraband to another
person. Thus, in one case, the Court has said:
x x x. While it is true that the non-revelation of the identity of an
informer is a standard practice in drug cases, such is inapplicable
in the case at bar as the circumstances are different. The would-
be buyers testimony was absolutely necessary because it could
have helped the trial court in determining whether or not the
accused-appellant had knowledge that the bag contained
marijuana, such knowledge being an essential ingredient of the
offense for which he was convicted. The testimony of the poseur-
buyer (not as an informer but as a `buyer) as to the alleged
agreement to sell therefore became indispensable to arrive at a
just and proper disposition of this case.[46]
In this case, the trouble appears to be that appellant Rosales
incorrectly assumes to be, or gives an impression of being,
unaware of the prohibited drug involved in the questioned
transaction with appellant Enriquez; in point of fact, however, it is
sufficiently shown that Rosales has known all along that the deal
between Enriquez and the poseur-buyers had only to do with
marijuana.
Appellant Rosales believes that his act of carrying the sack of
marijuana is a mere attempt to deliver the prohibited drug. In other
words, the sack being still within his control, he could, he states,
have easily refused to deliver the item to the poseur-buyer. Here,
he seeks to capitalize on his being supposedly still in
the subjective phase of the crime. Appellant Rosales thus submits
that, if found guilty, he should only be held accountable
for attempted delivery of a prohibited drug.
Article 6 of the Revised Penal Code provides:
"ART. 6. Consummated, frustrated, and attempted felonies. -
Consummated felonies, as well as those which are frustrated and
attempted, are punishable.
"A felony is consummated when all the elements necessary for
its execution and accomplishment are present; and it is frustrated
when the offender performs all the acts of execution which
would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent
of the will of the perpetrator.
"There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own
spontaneous desistance."
The subjective phase in the commission of a felony is that portion
of its execution starting from the point where the offender begins
by overt acts to pursue the crime until he is prevented, against his
will, by some outside cause from performing all of the acts which
would produce the offense. If the subjective phase has not yet
passed, then the crime is only attempted. If that phase has been
done but the felony is not produced, the crime is frustrated. [47] The
crime is consummated if, following the subjective phase, the last of
the elements of the felony meets to concur. These rules are
inapplicable to offenses governed by special laws.[48]
Unfortunately for appellant, the crime with which he is being
charged is penalized by a special law. The incomplete delivery
claimed by appellant Rosales, granting that it is true, is thus
inconsequential. The act of conveying prohibited drugs to an
unknown destination has been held to be punishable,[49] and it is
immaterial whether or not the place of destination of the prohibited
drug is reached.[50]
In sum, the facts proven beyond reasonable doubt in this case
were that: (a) Two police officers, one of them a woman,
conceived of and executed a buy-bust operation; (b) the operation
led to the red-handed apprehension of appellant Rosales just as
he delivered the illegal drug; and (c) appellant Enriquez who had
peddled the same to the poseur-buyer was himself later arrested
shortly thereafter. The sale and delivery of marijuana constituted
punishable acts under Section 4, Article II, of R.A. No. 6425, as
242
amended. Appellants Enriquez and Rosales should bear the
consequences of their trifling with the law. The two evidently
confederated towards the common purpose of selling and
delivering marijuana. Conspiracy could be inferred from the acts of
the accused, whose conduct before, during and after the
commission of the crime would show its existence.[51] It was
appellant Rosales who brought the poseur-buyer to appellant
Enriquez for the purchase of marijuana.It was upon the instruction
of appellant Enriquez, apparently to retain control of the unpaid
portion of the six-kilogram contraband, that appellant Rosales was
to carry the sack to the supposed residence of the poseur-
buyers. In conspiracy, the act of one conspirator could be held to
be the act of the other.[52]
R.A. No. 7659, amending the Dangerous Drugs Law, now
provides that if the quantity of drugs involved in any of the
punishable acts is more than any of the amounts specified in the
law, the penalty of reclusion perpetua to death[53] must be imposed.
Considering that the marijuana involved here weighed more than
750 grams, the maximum specified amount for marijuana,
appellants, ordinarily, are to be meted that penalty. An amendatory
law, however, may only be applied retroactively if it proves to be
beneficial to the appellants. In this case, it would not be that
favorable to them; hence, like in People vs. Ballagan,[54] the Court
could only impose the penalty of life imprisonment upon
appellants. The penalty of reclusion perpetua would mean that the
accused would also have to suffer the accessories carried by that
penalty, as well as the higher fine, provided for by R.A. No.
7659.[55] Appellants must, accordingly, still bear the penalty
imposed on them by the trial court.
WHEREFORE, the questioned Decision of 21 January 1991 of
the Regional Trial Court of Manila, finding appellants Ernesto
Enriquez and Wilfredo Rosales guilty beyond reasonable doubt of
the crime punished by Section 4, Article II, of R.A. No. 6425, as
amended, and imposing on them the penalty of life imprisonment
and the payment of the fine of P30,000 is AFFIRMED. Costs
against appellants.
SO ORDERED.
 Davide, Jr., Acting Chief Justice, (Chairman),
Bellosillo, and Kapunan, JJ., concur.
FIRST DIVISION
[G.R. No. 122099. July 5, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
AGAPITO LISTERIO y PRADO and SAMSON
DELA TORRE y ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
For the deadly assault on the brothers Jeonito Araque and
Marlon Araque, Agapito Listerio y Prado, Samson dela Torre y
Esquela, Marlon dela Torre, George dela Torre, Bonifacio
Bancaya and several others who are still at large were charged in
two (2) separate Amended Informations with Murder and
Frustrated Murder.
In Criminal Case No. 91-5842 the Amended Information for [1]
Murder alleges
That on or about the 11th day of August 1991 in the
Municipality of Muntinlupa, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together
and mutually helping and aiding one another, all armed
with bladed weapons and GI lead pipes, with intent to kill,
treachery and evident premeditation with abuse of superior
strength did then and there willfully, unlawfully and
243
feloniously attack, assault and stab one Jeonito Araque y
Daniel at the back of his body, thereby inflicting upon the
latter mortal wounds which directly caused his death.
CONTRARY TO LAW.
In Criminal Case No. 91-5843, the Amended Information[2] for
Frustrated Homicide charges:
That on or about the 14th day of May 1991 in the
Municipality of Muntinlupa, Metro Manila, Philippines and
within the jurisdiction this Honorable Court, the above-
named accused, conspiring, confederating together,
mutually helping and aiding one another, with intent to kill
did then and there willfully, unlawfully and feloniously stab
and hit with a lead pipe and bladed weapon one Marlon
Araque y Daniel on the vital portions of his body, thereby
inflicting serious and mortal wounds which would have
cause[d] the death of the said victim thus performing all the
acts of execution which should have produce[d] the crime
of Homicide as a consequence but nevertheless did not
produce it by reason of causes independent of their will,
that is by timely and able medical attendance rendered to
said Marlon Araque y Daniel which prevented his death.
CONTRARY TO LAW.
Upon arraignment, accused Agapito Listerio y Prado and
Samson dela Torre y Esquela pleaded not guilty to the crimes
charged. Their other co-accused have remained at large.
Trial thereafter ensued after which the court a quo rendered
judgment only against accused Agapito Listerio because his co-
accused Samson dela Torre escaped during the presentation of
the prosecutions evidence and he was not tried in absentia. The
dispositive portion of the decision[3] reads:
WHEREFORE, finding Accused AGAPITO LISTERIO guilty THE COURT CONVICTED THE ACCUSED OF THE
beyond reasonable doubt, he is sentenced: CRIME OF MURDER AND ATTEMPTED HOMICIDE
DESPITE ABSENCE OF PROOF OF CONSPIRACY
1. For the death of Jeonito Araque y Daniel in Criminal Case AND AGGRAVATING CIRCUMSTANCE OF
NO. 91-5842, RECLUSION PERPETUA;
TREACHERY.
2. For the attempt to kill Marlon Araque y Daniel, in Criminal
Case No. 91-5843, he is sentenced to six (6) months and The version of the prosecution of what transpired on that
one (1) day as minimum, to four (4) years as maximum; fateful day of August 14, 1991 culled from the eyewitness account
3. As civil indemnity, he is ordered to indemnify the heirs of of Marlon Araque discloses that at around 5:00 p.m. of August 14,
Jeonito Araque y Daniel the sum[s] of : 1991, he and his brother Jeonito were in Purok 4, Alabang,
Muntinlupa to collect a sum of money from a certain Tino.[5] Having
P54,200.66 as actual damages; failed to collect anything from Tino, Marlon and Jeonito then turned
back.[6] On their way back while they were passing Tramo near
P50,000.00 as moral damages; Tinos place,[7] a group composed of Agapito Listerio, Samson dela
Torre, George dela Torre, Marlon dela Torre and Bonifacio
Bancaya[8] blocked their path[9] and attacked them with lead pipes
P5,000.00 as exemplary damages.
and bladed weapons.[10]
4. And for the damages sustained by Marlon Araque y Daniel, Agapito Listerio, Marlon dela Torre and George dela Torre,
he is required to pay Marlon Araque y Daniel, the sum[s] of : who were armed with bladed weapons, stabbed Jeonito Araque
from behind.[11] Jeonito sustained three (3) stab wounds on the
P5,000.00 as actual damages; upper right portion of his back, another on the lower right portion
and the third on the middle portion of the left side of his
P5,000.00 as moral damages; and back[12] causing him to fall down.[13] Marlon Araque was hit on the
head by Samson dela Torre and Bonifacio Bancaya with lead
P5,000.00 as exemplary damages pipes and momentarily lost consciousness.[14] When he regained
his senses three (3) minutes later, he saw that Jeonito was already
SO ORDERED.[4] dead.[15] Their assailants then fled after the incident.[16] Marlon
Araque who sustained injuries in the arm and back,[17] was
Dissatisfied, accused Agapito Listerio interposed this appeal thereafter brought to a hospital for treatment.[18]
alleging that Marlon Araque was examined by Dr. Salvador Manimtim, head
I of the Medico Legal Division of the UP-PGH, [19] who thereafter
issued a Medical Certificate[20] indicating that Marlon Araque
THE PROSECUTION EVIDENCE FAILED TO sustained two (2) lacerated wounds, one measuring 5 centimeters
in length located in the center (mid-parietal area) of the ear.[21] The
ESTABLISH THE GUILT OF THE ACCUSED BEYOND
second lacerated wound measuring 2 centimeters in length is
REASONABLE DOUBT. located at the mid-frontal area commonly known as the
forehead.[22] A third lacerated wound measuring 1.5 centimeters
II
long is located at the forearm[23] and a fourth which is a stab wound
measuring 3 centimeters is located at the right shoulder at the
244
collar.[24] Elaborating on the nature of Marlon Araques injuries, Dr.
Manimtim explained in detail during cross-examination that the two
(2) wounds on the forearm and the shoulder were caused by a
sharp object like a knife while the rest were caused by a blunt
instrument such as a lead pipe.[25]
Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an
autopsy on the cadaver of Jeonito Araque[26] and prepared an
Autopsy Report[27] of his findings. The report which contains a
detailed description of the injuries inflicted on the victim shows that
the deceased sustained three (3) stab wounds all of them inflicted
from behind by a sharp, pointed and single-bladed instrument like
a kitchen knife, balisong or any similar instrument.[28] The first stab
wound, measuring 1.7 centimeters with an approximate depth of
11.0 centimeters, perforated the lower lobe of the left lung and the
thoracic aorta.[29] Considering the involvement of a vital organ and
a major blood vessel, the wound was considered fatal.[30] The
second wound, measuring 2.4 centimeters, affected the skin and
underlying soft tissues and did not penetrate the body
cavity.[31] The third wound measuring 2.7 centimeters was like the
second and involved only the soft tissues.[32] Unlike the first, the
second and third wounds were non-fatal.[33] Dr. Munoz averred that
of the three, the first and second wounds were inflicted by knife
thrusts delivered starting below going upward by assailants who
were standing behind the victim.[34]
On the other hand, accused-appellants version of the incident
is summed thus in his brief:
1. Accused-appellant is 39 years old, married, side walk
vendor and a resident of Purok 4, Bayanan, Muntinlupa,
Metro Manila. He earns a living by selling vegetables.[35]
2. At around 1:00 oclock in the afternoon of August 14,
1991, Accused-Appellant was in the store of Nimfa Agustin
having a little fun with Edgar Demolador and Andres
Gininao drinking beer. At around 2:00 oclock Accused-
appellant went to his house and slept.[36]
245
3. While asleep, at about 5 oclock, Edgar Remolador and
Andres Gininao woke him up and told him there was a
quarrel near the railroad track.[37]
4. At around 6:00 oclock two (2) policemen passed by
going to the house of Samson de la Torre while Accused-
appellant was chatting with Edgar Remolador and Andres
Gininao. These two (2) policemen together with co-
accused Samson de la Torre came back and invited
Accused-appellant for questioning at the Muntinlupa Police
Headquarters together with Edgar Demolador and Andres
Gininao. Subsequently, Edgar Demolador and Andres
Gininao were sent home.[38]
5. At the Police Station, Accused-Appellant was handed a
Sinumpaang Salaysay executed by Marlon Araque,
implicating him for the death of Jeonito Araque and the
frustrated murder of Marlon Araque. Accused-Appellant
confronted Marlon Araque as to why he was being included
in the case. Marlon Araque answered because you
eject[ed] us from your house.[39]
Professing his innocence, accused-appellant claims that
Marlon Araques uncorroborated testimony failed to clearly and
positively identify him as the malefactor responsible for his
brothers death.In fine, he insists that Marlons testimony is
insufficient to convict him of the crimes charged.
We disagree.
It is well settled that witnesses are to be weighed, not
numbered, such that the testimony of a single, trustworthy and
credible witness could be sufficient to convict an accused. [40] More
explicitly, the well entrenched rule is that the testimony of a lone
eyewitness, if found positive and credible by the trial court is
sufficient to support a conviction especially when the testimony
bears the earmarks of truth and sincerity and had been delivered
spontaneously, naturally and in a straightforward manner. It has
been held that witnesses are to be weighed not numbered; hence,
it is not at all uncommon to reach a conclusion of guilt on the basis A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre,
of the testimony of a single witness.[41] Marlon dela Torre and Bonifacio.

The trial court found Marlon Araques version of what
transpired candid and straightforward. We defer to the lower courts
findings on this point consistent with the oft-repeated
pronouncement that: the trial judge is the best and the most
competent person who can weigh and evaluate the testimony of
witnesses. His firsthand look at the declarants demeanor, conduct
and attitude at the trial places him in a peculiar position to
discriminate between the true and the false. Consequently
appellate courts will not disturb the trial courts findings save only in
cases where arbitrariness has set in and disregard for the facts
important to the case have been overlooked.[42]
The account of Marlon Araque as to how they were assaulted
by the group of accused-appellant was given in a categorical,
convincing and straightforward manner:
Q Mr. Witness, do you know a certain Jeonito Araque y Daniel?
Q Now if these persons [are] inside the courtroom, could you identify
them?
A They (sic) are only two persons but the three persons is (sic) not
around.
Q Could you please point to this Honorable Court who are these two
persons in side the courtroom?
A Yes, sir (Witness pointing to a persons [sic] and when asked
[identified themselves as] Agapito Listerio and Samson dela
Torre.)
Q Now, at around 5:00 oclock in the afternoon of August 14, 1991, do
you recall where were you?
A Yes, sir.
Q Will you please inform the Honorable Court where were you at that
time?

A Yes, sir. A Im in Alabang at Purok 4 and Im collecting.

Q And why do you know him? Q Do you have any companion at that time?

A He is my brother. A Yes, sir.

Q Where is Jeonito Araque now? Q What are you doing at that time in [that] particular date?

A He is already dead. A Im collecting from a certain Tino.

Q When did he die? Q Were you able to collect?

A Last August 14. A No, sir.

Q Do you know of your own knowledge how he died? Q If you said that there were no collections, what did you do?

A Yes, sir. A We went back.

Q Will you please inform the Honorable Court what is your own Q When you went back, did you have any companion?
knowledge? A Yes, sir.
A He was stabbed, sir. Q Who was your companion?
Q Do you know the person or persons who stabbed him? A My brother.
A Yes, sir. Q While you were going back, was there any untoward incidents that
Q Will you please inform the Honorable Court who are these person happened?
or persons, if you know? A Yes sir Hinarang po kami.
246
Q Now, what particular place [where] you were waylaid, if you recall? A Agapito, Marlon and George.
A In Tramo, near Tinos place. COURT
Q And who were the persons that were waylaid (sic)? How many stabbed [him], if you know?
A Agapito Listerio, Samson dela Torre, George dela Torre and A Three (3), sir.
Bonifacio.
COURT
Q Will you please inform the Honorable Court how will (sic) you
waylaid by these persons? In what particular part of his body was stabbed wound (sic)?

A We were walking then suddenly they stabbed us with knife (sic) and
ran afterwards.
Q Who were the persons that waylaid you?
A Agapito Listerio, George and Marlon.
Q How about your brother, what happened to him?
A He fall (sic) down.
Q And after he fall (sic) down, do you know what happened?
A I was hit by a lead pipe thats why I painted (sic).
Q Do you know the reason why your brother fall (sic) down?
A I cannot recall, sir. Because I already painted (sic).
Q Do you know the reason why your brother fall (sic) before you
painted (sic)?
A Yes, sir.
Q Will you please inform the Honorable Court why your brother fall
(sic) down?
xxx xxx xxx
A Yes, sir, because he was stabbed.
Q What particular place of his body was [he] stabbed if you know?
A At the back of his body.
Q Do you know the person or persons who was (sic) stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who was that persons
was stabbed him?
A Witness pointing to his back upper right portion of the back, another
on the lower right portion and another on the middle portion of the
left side at the back.
COURT
Proceed.
Q Will you please inform the Honorable Court why you are (sic) lost
consciousness?
A I was hit by [a] lead pipe by Samson and Bonifacio.
Q And when did you regain consciousness?
A After three minutes.
Q And when you gain[ed] consciousness, what happened to your
brother?
A He was already dead.
Q How about you, what did you do?
A I go (sic) to the Hospital.
Q How about the accused, the persons who way laid, what happened
to them?
A From what I know, they ran away.[43]
Persistent efforts by defense counsel to establish that the
attack was provoked, by eliciting from Marlon Araque an
admission that he and the deceased had a drinking spree with
their attackers prior to the incident, proved futile as Marlon
steadfastly maintained on cross examination that he and his
brother never drank liquor on that fateful day:
Q After your work, was there an occasion when you drink something
with your borther (sic)?

247
A No, sir. That will be all for the witness, your Honor.[44]
Q And you stand to your testimony that you never drink (sic) on That Marlon was able to recognize the assailants can hardly
August 14, 1991? be doubted because relatives of the victim have a natural knack
A Yes, sir. for remembering the faces of the attackers and they, more than
anybody else, would be concerned with obtaining justice for the
Q Were (sic) there no occasion on August 14, 1991 when you visited victim by the felons being brought to the face of the law.[45] Indeed,
Sonny Sari-Sari Store at 4:00 p.m. on August 14, 1991? family members who have witnessed the killing of a loved one
A No, sir. usually strive to remember the faces of the assailants. [46] Marlons
credibility cannot be doubted in this case because as a victim
Q And did you not have a drinking spree with George dela Torre?
himself and an eyewitness to the incident, it can be clearly gleaned
A No, sir. from the foregoing excerpts of his testimony that he remembered
Q Marlon dela Torre? with a high degree of reliability the identity of the malefactors.[47]

A No, sir. Likewise, there is no showing that he was motivated by any ill-
feeling or bad blood to falsely testify against accused-
Q Bonifacio? appellant. Being a victim himself, he is expected to seek justice. It
A With your borther (sic)? is settled that if the accused had nothing to do with the crime, it
would be against the natural order of events to falsely impute
Q So you want to tell this Honorable Court that there was no point in charges of wrongdoing upon him.[48] Accused-appellant likewise
time on August 14, 1991 at 4:00 p.m. that you did not take a sip
insists on the absence of conspiracy and treachery in the attack on
of wine?
the victims.
A No, sir.
We remain unconvinced.
Q Neither your brother?
It must be remembered that direct proof of conspiracy is rarely
Atty. Agoot found for criminals do not write down their lawless plans and
Objection, Your Honor, the question is vague. plots.[49] Conspiracy may be inferred from the acts of the accused
before, during and after the commission of the crime which
COURT indubitably point to and are indicative of a joint purpose, concert of
Ask another question. action and community of interest.[50] Indeed
Q Mr. Witness, will you please tell the Honorable Court where this
George dela Torre, Marlon dela Torre and a certain Bonifacio A conspiracy exists when two or more persons come to
were? an agreement concerning the commission of a felony
Atty. Agoot and decide to commit it. To establish the existence of a
conspiracy, direct proof is not essential since it may be
Witness is incompetent.
shown by facts and circumstances from which may be
Q Mr. Witness, you testified that it was your brother the deceased logically inferred the existence of a common design
who invited you to Purok 4? among the accused to commit the offense charged, or
A Yes, sir. it may be deduced from the mode and manner in which
Atty. Lumakang the offense was perpetrated.[51]
248
More explicitly
conspiracy need not be established by direct evidence of
acts charged, but may and generally must be proved by a
number of indefinite acts, conditions and circumstances,
which vary according to the purpose
accomplished. Previous agreement to commit a crime is
not essential to establish a conspiracy, it being sufficient
that the condition attending to its commission and the acts
executed may be indicative of a common design to
accomplish a criminal purpose and objective. If there is a
chain of circumstances to that effect, conspiracy can be
established.[52]
Thus, the rule is that conspiracy must be shown to exist by
direct or circumstantial evidence, as clearly and
convincingly as the crime itself.[53] In the absence of direct
proof thereof, as in the present case, it may be deduced
from the mode, method, and manner by which the offense
was perpetrated, or inferred from the acts of the accused
themselves when such acts point to a joint purpose and
design, concerted action and community of
interest.[54] Hence, it is necessary that a conspirator should
have performed some overt acts as a direct or
indirect contribution in the execution of the crime planned
to be committed. The overt act may consist of active
participation in the actual commission of the crime itself, or
it may consist of moral assistance to his con-conspirators
by being present at the commission of the crime or by
exerting moral ascendancy over the other co-
conspirators.[55]
Conspiracy transcends mere companionship, it denotes an
intentional participation in the transaction with a view to the
furtherance of the common design and purpose.[56] Conspiracy to
exist does not require an agreement for an appreciable period
prior to the occurrence.[57] From the legal standpoint, conspiracy
249
exists if, at the time of the commission of the offense, the accused
had the same purpose and were united in its execution.[58] In this
case, the presence of accused-appellant and his colleagues, all of
them armed with deadly weapons at the locus criminis, indubitably
shows their criminal design to kill the victims.
Nowhere is it more evident than in this case where accused-
appellant and his cohorts blocked the path of the victims and as a
group attacked them with lead pipes and bladed
weapons.Accused-appellant and his companions acted in concert
during the assault on the victims. Each member of the group
performed specific and coordinated acts as to indicate beyond
doubt a common criminal design or purpose.[59] Thus, even
assuming arguendo that the prosecution eyewitness may have
been unclear as to who delivered the fatal blow on the victim,
accused-appellant as a conspirator is equally liable for the crime
as it is unnecessary to determine who inflicted the fatal wound
because in conspiracy, the act of one is the act of all.[60]
As to the qualifying circumstances here present, the
treacherous manner in which accused-appellant and his group
perpetrated the crime is shown not only by the sudden and
unexpected attack upon the unsuspecting and apparently unarmed
victims but also by the deliberate manner in which the assault was
perpetrated. In this case, the accused-appellant and his
companions, all of them armed with bladed weapons and lead
pipes, blocked (hinarang) the path of the victims effectively cutting
off their escape.[61] In the ensuing attack, the deceased was
stabbed three (3) times from behind by a sharp, pointed and
single-bladed instrument like a kitchen knife, balisong or similar
instrument[62] while Marlon Araque sustained lacerated wounds in
the head caused by blows inflicted by lead pipes as well as stab
wounds on the shoulder and forearm which were caused by a
sharp object like a knife.[63]
It must be noted in this regard that the manner in which the
stab wounds were inflicted on the deceased were clearly meant to
kill without posing any danger to the malefactors considering their
locations and the fact that they were caused by knife thrusts
starting below going upward by assailants who were standing
behind the victim.[64] Treachery is present when the offender
commits any of the crimes against persons employing means,
methods or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from
the defense which the offended party might make. [65] That
circumstance qualifies the crime into murder.
The commission of the crime was also attended by abuse of
superior strength on account of the fact that accused-appellant
and his companions were not only numerically superior to the
victims but also because all of them, armed with bladed weapons
and lead pipes, purposely used force out of proportion to the
means of defense available to the persons attacked. However, this
aggravating circumstance is already absorbed in
treachery.[66] Furthermore, although alleged in the information,
evident premeditation was not proved by the prosecution. In the
light of the finding of conspiracy, evident premeditation need not
be further appreciated, absent concrete proof as to how and when
the plan to kill was hatched or what time had elapsed before it was
carried out.[67]
In stark contrast to the evidence pointing to him as one of the
assailants of the victims, accused-appellant proffers the defense of
alibi. At the risk of sounding trite, it must be remembered that alibi
is generally considered with suspicion and always received with
caution because it can be easily fabricated.[68] For alibi to serve as
a basis for acquittal, the accused must establish that: a.] he was
present at another place at the time of the perpetration of the
offense; and b.] it would thus be physically impossible for him to
have been at the scene of the crime.[69]
Suffice it to state that accused-appellant failed to discharge
this burden. The positive identification of the accused as one of the
perpetrators of the crime by the prosecution eyewitness, absent
any showing of ill-motive, must prevail over the weak and
obviously fabricated alibi of accused-appellant.[70] Furthermore, as
aptly pointed out by the trial court [t]he place where the accused
was at the time of the killing is only 100 meters away. The distance
of his house to the place of the incident makes him physically
possible to be a participant in the killing [of Jeonito] and [the]
wounding of Marlon.[71]
250
All told, an overall scrutiny of the records of this case leads us
to no other conclusion than that accused-appellant is guilty as
charged for Murder in Criminal Case No. 91-5842.
In Criminal Case No. 91-5843, wherein accused-appellant was
indicted for Frustrated Homicide, the trial court convicted accused-
appellant of Attempted Homicide only on the basis of Dr.
Manimtims testimony that none of the wounds sustained by Marlon
Araque were fatal.
The reasoning of the lower court on this point is flawed
because it is not the gravity of the wounds inflicted which
determines whether a felony is attempted or frustrated but whether
or not the subjective phase in the commission of an offense has
been passed. By subjective phase is meant [t]hat portion of the
acts constituting the crime included between the act which begins
the commission of the crime and the last act performed by the
offender which, with the prior acts, should result in the
consummated crime. From that time forward, the phase is
objective. It may also be said to be that period occupied by the
acts of the offender over which he has control that period between
the point where he begins and the point where he voluntarily
desists. If between these two points the offender is stopped by
reason of any cause outside of his own voluntary desistance, the
subjective phase has not been passed and it is an attempt. If he is
not so stopped but continues until he performs the last act, it is
frustrated.[72]
It must be remembered that a felony is frustrated when: 1.] the
offender has performed all the acts of execution which would
produce the felony; 2.] the felony is not produced due to causes
independent of the perpetrators will.[73] On the other hand, in an
attempted felony: 1.] the offender commits overt acts to commence
the perpetration of the crime; 2.] he is not able to perform all the
acts of execution which should produce the felony; and 3.] his
failure to perform all the acts of execution was due to some cause
or accident other than his spontaneous desistance.[74] The
distinction between an attempted and frustrated felony was lucidly
differentiated thus in the leading case of U.S. v. Eduave:[75]
A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by
overt acts, is prevented, against his will, by some outside
cause from performing all of the acts which should produce
the crime. In other words, to be an attempted crime the
purpose of the offender must be thwarted by a foreign force
or agency which intervenes and compels him to stop prior
to the moment when he has performed all of the acts which
should produce the crime as a consequence, which acts it
is his intention to perform. If he has performed all the acts
which should result in the consummation of the crime
and voluntarily desists from proceeding further, it cannot be
an attempt. The essential element which distinguishes
attempted from frustrated felony is that, in the latter, there
is no intervention of a foreign or extraneous cause or
agency between the beginning of the commission of
crime and the moment when all the acts have been
performed which should result in the consummated crime;
while in the former there is such intervention and the
offender does not arrive at the point of performing all of the
acts which should produce the crime. He is stopped short
of that point by some cause apart from his voluntary
desistance.
To put it another way, in case of an attempt the offender
never passes the subjective phase of the offense. He is
interrupted and compelled to desist by the intervention of
outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes, the
subjective phase is completely passed. Subjectively the
crime is complete. Nothing interrupted the offender while
he was passing through the subjective phase. The crime,
however, is not consummated by reason of the intervention
of causes independent of the will of the offender. He did all
that was necessary to commit the crime. If the crime did
not result as a consequence it was due to something
beyond his control.
251
In relation to the foregoing, it bears stressing that intent to kill
determines whether the infliction of injuries should be punished as
attempted or frustrated murder, homicide, parricide or
consummated physical injuries.[76] Homicidal intent must be
evidenced by acts which at the time of their execution are
unmistakably calculated to produce the death of the victim by
adequate means.[77] Suffice it to state that the intent to kill of the
malefactors herein who were armed with bladed weapons and
lead pipes can hardly be doubted given the prevailing facts of the
case. It also can not be denied that the crime is a frustrated felony
not an attempted offense considering that after being stabbed and
clubbed twice in the head as a result of which he lost
consciousness and fell, Marlons attackers apparently thought he
was already dead and fled.
An appeal in a criminal case throws the whole case wide open
for review[78] and the reviewing tribunal can correct errors, though
unassigned in the appealed judgement[79] or even reverse the trial
courts decision on the basis of grounds other than those that the
parties raised as errors.[80] With the foregoing in mind, we now
address the question of the proper penalties to be imposed.
With regard to the frustrated felony, Article 250 of the Revised
Penal Code provides that
ART. 250. Penalty for frustrated parricide, murder, or
homicide. The courts, in view of the facts of the case, may
impose upon the person guilty of the frustrated crime of
parricide, murder or homicide, defined and penalized in the
preceding articles, a penalty lower by one degree than that
which should be imposed under the provisions of article
50.[81]
The courts, considering the facts of the case, may likewise
reduce by one degree the penalty which under article 51
should be imposed for an attempt to commit any of such
crimes.
The penalty for Homicide is reclusion temporal[82] thus, the
penalty one degree lower would be prision mayor.[83] With the
presence of the aggravating circumstance of abuse of superior
strength and no mitigating circumstances, the penalty is to be
imposed in its maximum period.[84] Prision mayor in its maximum
period ranges from ten (10) years and one (1) day to twelve (12)
years.Applying further the Indeterminate Sentence Law,[85] the
minimum of the imposable penalty shall be within the range of the
penalty next lower in degree, i.e. prision correccional in its
maximum period which has a range of six (6) months and one (1)
day to six (6) years.
What now remains to be determined is the propriety of the
awards made by the trial court with regard to the civil aspect of the
case for the death of Jeonito Araque and the injuries sustained by
Marlon Araque.
Anent actual or compensatory damages, it bears stressing that
only substantiated and proven expenses or those which appear to
have been genuinely incurred in connection with the death, wake
or burial of the victim will be recognized by the courts.[86] In this
case, the expenses incurred for the wake, funeral and burial of the
deceased are substantiated by receipts.[87] The trial courts award
for actual damages for the death of Jeonito Araque should
therefore be affirmed.
In line with current jurisprudence,[88] the award of P50,000.00
as civil indemnity ex delicto must also be sustained as it requires
no proof other than the fact of death of the victim and the
assailants responsibility therefor.[89] The award for moral damages
for the pain and sorrow suffered by the victims family in connection
with his untimely death must likewise be affirmed. The award is
adequate, reasonable and with sufficient basis taking into
consideration the anguish and suffering of the deceaseds family
particularly his mother who relied solely upon him for
support.[90] The award of exemplary damages should likewise be
affirmed considering that an aggravating circumstance attended
the commission of the crime.[91]
The trial court, however, correctly ignored the claim for loss of
income or earning capacity of the deceased for lack of factual
basis. The estimate given by the deceaseds sister on his alleged
income as a pre-cast businessman is not supported by competent
evidence like income tax returns or receipts. It bears emphasizing
252
in this regard that compensation for lost income is in the nature of
damages[92] and as such requires due proof thereof.[93] In short,
there must be unbiased proof of the deceaseds average
income.[94] In this case, the victims sister merely gave an oral, self-
serving and hence unreliable statement of her deceased brothers
income.
As for the awards given to Marlon Araque, the award for actual
damages must be affirmed as the same is supported by
documentary evidence.[95] With regard to moral and exemplary
damages, the same being distinct from each other require
separate determination.[96] The award for moral damages must be
struck down as the victim himself did not testify as to the moral
suffering he sustained as a result of the assault on his person. For
lack of competent proof such an award is improper.[97] The award
for exemplary damages must, however, be retained considering
that under Article 2230 of the Civil Code, such damages may be
imposed when the crime is committed with one or more
aggravating circumstances.[98]
Finally, this Court has observed that the trial court did not
render judgment against accused Samson dela Torre,
notwithstanding that he was arraigned and pleaded not guilty to
both charges.Under the circumstances, he should be deemed to
have been tried in absentia and, considering the evidence
presented by the prosecution against him, convicted of the crime
charged together with appellant Agapito Listerio.
WHEREFORE, the appealed decision is AFFIRMED with the
following MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way of moral
damages in Criminal Case No. 91-5843 is DELETED;
2.] Accused-Appellant is found GUILTY beyond reasonable
doubt in Criminal Case No. 91-5843 of Frustrated Homicide
and is sentenced to suffer an indeterminate penalty of Six (6)
Years of Prision Correccional, as minimum to Ten (10) Years
and One (1) Day of Prision Mayor, as maximum.
After finality of this Decision, the records shall be remanded to
the Regional Trial Court of Makati City, which is directed to render
judgment based on the evidence against Samson dela Torre y
Esquela.
 SO ORDERED. only as abusos deshonestos. We do not think so. It is probably true that a
complete penetration was impossible, but such penetration is not essential
Davide, Jr., (Chairman), Puno, Kapunan, and Pardo, to the commission of the crime; it is sufficient if there is a penetration of the
JJ., concur. labia. In the case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L.
R. A., 316) where the offended party was a child of the age of 3 years and 8
months the testimony of several physicians was to the effect that her labia of
Republic of the Philippines the privates of a child of that age can be entered by a man's male organ to
SUPREME COURT the hymen and the defendant was found guilty of the consummated crime
Manila rape.

EN BANC There being no conclusive evidence of penetration of the genital organ of

the offended party, the defendant is entitled to the benefit of the doubt and
can only be found guilty of frustrated rape, but in view of the fact that he was
G.R. No. L-26298 January 20, 1927
living in the house of the parents of the child as their guest, the aggravating
circumstance of abuse of confidence existed and the penalty must therefore
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, be imposed in its maximum degree.
vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.
The judgment appealed from is modified and the defendant-appellant is
hereby found guilty of the crime of frustrated rape and is sentenced to suffer
Hermogenes Caluag for appellant. twelve years of prision mayor, with the accessory penalties prescribed by
Attorney-General Jaranilla for appellee. law, and with the costs in both instances. So ordered.

OSTRAND, J.: Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.

This is an appeal from a judgment of the Court of First Instance of Manila

finding the defendant guilty of the crime of consummated rape and
sentencing him to suffer seventeen years, four months and one day
of reclusion temporal, with the accessory penalties provided by law and to
pay the costs. Separate Opinions

The victim of the crime was a child of 3 years and 11 months old and the
evidence is conclusive that the defendant endeavored to have carnal
intercourse with her, but there may be some doubt whether he succeeded in
penetrating the vagina before being disturbed by the timely intervention of
the mother and the sister of the child. The physician who examined the
genital organ of the child a few hours after the commission of the crime
found a slight inflammation of the exterior parts of the organ, indicating that
an effort had been made to enter the vagina, but in testifying before the
court he expressed doubts as to whether the entry had been effected. The
mother of the child testified that she found its genital organ covered with a
sticky substance, but that cannot be considered conclusive evidence of
penetration.
It has been suggested that the child was of such tender age that penetration
was impossible; that the crime of rape consequently was impossible of
consummation; and that, therefore, the offense committed should be treated
253
MALCOLM, J., dissenting:
In my opinion, the accused is guilty of raping a child 3 years and 11 months
of age. It is consummated rape according to the evidence of record, the
findings of the trial judge, and our decisions. (People vs. Hernandez [1925],
49 Phil., 980; People vs. Oscar [1925], 48 Phil., 527.) The instant case is on
all fours with the case of Kenney vs. State (65 L. R. A., 316), cited in the
majority decision. In the Kenny case, the penalty was death, and here for
this horrible crime, should be placed in the maximum degree or seventeen
years, four months, and one day imprisonment, as imposed by the trial
court. Accordingly, my vote is for affirmance of the judgment.
Republic of the Philippines
SUPREME COURT
Manila
 EN BANC
G.R. No. L-23916 October 14, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
DOMINGO HERNANDEZ, defendant-appellant.
Cirilo B. Santos for appellant.
Acting Attorney-General Reyes for appllees
OSTRAND, J.:
The defendant is accused of the crime of rape, the information alleging "that
on or about the 26th day of February, 1925, in the City of Manila, Philippine
Islands, the said accused wilfully, unlawfully, and feloniously, by means of
force and by intimidating one Conrada Jocson with killing her with a knife
which said accused held in his hand should she not accede to his wish, did
then and there lie with and have carnal knowledge of said Conrada Jocson,
a girl under 12 years of age. That in the commission of the crime the
following aggravating circumstances existed to wit: (1) The accused is the
husband of the grandmother of said Conrada Jocson and (2) the crime was
committed with grave abuse of confidence, inasmuch as the offended and
the accused living in the same house."
The defendant is a man 70 years of age and the offended party is a child of
9 years, the granddaughter of the defendant's wife. There can be no
question as to the defendant's guilt. The evidence shows that he and the
offended party were living in the same house and that taking advantage of
the absence of the other inhabitants of the house, he had intercourse with
the child by force and violence. He admits that he did so, but maintains that
he was intoxicated at the time and did not know what he was doing. The
testimony of the witnesses for the prosecution is, however, to the effect that
he did not show any signs of intoxication at the time of the commission of
the crime or immediately afterwards.
The court below found the defendant guilty of frustrated rape and sentenced
him to suffer ten years and one day of prision mayor. In holding that the
crime was frustrated, the court seems to have been of the opinion that there
can be no consummated rape without a complete penetration of the hymen.
This view is not accordance with the weight of authority; in fact, it is contrary
to practically all modern authorities. In State vs. Johnson (91 Mo., 439), the
254
court held that "finding the hymen intact is not always proof that no rape has
been committed, nor virginity; for the case are not rare where the hymen
had to be removed after impregnation and in order to permit delivery."
In the same case, the court further said:
Any penetration whether reaching to the hymen or not is sufficient to
constitute the crime; for as Lord Meadowbank said in case in
Scotland. "Scientific and anatomical distinctions as to where the
vagina commences are worthless in a case of rape; it is enough if
the woman's body is entered; and it is not necessary to show to
what extent penetration of the parts has taken place; whether it has
gone past the hymen, into what is anatomically called the hymen, or
even so far as to touch the hymen." (Stewart on Legal Medicine, p.
137.)1awph!l.net
In People vs. Rivers (147 Mich., 643), the court says:
The law may now indeed be considered as settled that while the
rupturing of the hymen is not indispensable to a conviction, there
must be proof of some degree of entrance of the male organ "within
the labia of Pudendum."
In the following cases it has been held that entry of the labia or lips of the
female organ, merely, without rupture of the hymen or laceration of the
vagina, is sufficient to warrant conviction of the consummated crime of rape.
(Kenny vs. State [Tex. Crim. App.]; 65 L. R. A., 316; 79 S. W., 817 [1903].
See [Eng.] Reg. vs. Lines, 1 Car. & K., 393 [1844]; 44 N. W., 571 [1890];
[Tex.] Rodgers vs. State, 30 Tex. App., 510; 17 S. W., 1077 [1891]; [Wis.]
Brauer vs.State, 25 Wis., 413 [1870].)
In the present case the physician who examined the offended party
immediately after the commission of the crime found the labia and the
opening of the vagina inflamed together with an abundance of semen,
though the hymen was intact. It also appears from the evidence that the
defendant lay on top of the child for over fifteen minutes and continued his
efforts of penetration during that period; the child testifies that the defendant
succeeded in a partial penetration and that she felt intense pain. In these
circumstances, the crime must be regarded as consummated.
The judgment appealed from is therefore modified by finding the defendant
guilty of the consummated crime of rape and, in view of the aggravating
circumstances mentioned in the information, the penalty imposed upon the
defendant is hereby increased to seventeen years, four months and one day
of reclusion temporal, with the accessory penalties prescribed by law. In all
other respects the judgment is affirmed with the costs against the appellant.
So ordered.
Avanceña, C. J., Street, Malcolm, Villamor, Johns, Romualdez and Villa-
Real, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in
Criminal Case No. 83-031-B before the Regional Trial Court, Branch II,
Borongan, Eastern Samar. The information filed in the said case reads as
follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior
complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside
a boarding house at Victoria St., Poblacion, Borongan, Eastern
Samar, Philippines, and within the jurisdiction of this Honorable
Court, above named accused with lewd designs and by the use of a
Batangas knife he conveniently provided himself for the purpose and
with threats and intimidation, did, then and there wilfully, unlawfully
and feloniously lay with and succeeded in having sexual intercourse
with Cristina S. Abayan against her will and without her consent.
255
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the
offense charged. After the witnesses for the People testified and the exhibits
were formally offered and admitted, the prosecution rested its case.
Thereafter, the defense opted not to present any exculpatory evidence and
instead filed a Motion to Dismiss. On August 5, 1985, the trial court
rendered its decision, the dispositive portion of which reads (pp. 59-
60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of
accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape
(Art. 335, RPC), beyond reasonable doubt, with the aggravating
circumstances of dwelling and nightime (sic) with no mitigating
circumstance to offset the same, and considering the provisions of
the Indeterminate Sentence Law, imposes on accused an
imprisonment of TEN (10) YEARS and ONE (1) DAY,PRISION
MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR,
maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four
Thousand (P4,000.00) Pesos, without subsidiary imprisonment in
case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of
Appeals. On December 29, 1988, the Court of Appeals rendered its
decision, the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and
the appellant found guilty of the crime of rape, and consequently,
sentenced to suffer imprisonment of reclusion perpetua and to
indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside
its December 29, 1988 decision and forwarded the case to this Court,
considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg.
129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp.
71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student
at the St. Joseph's College at Borongan, Eastern Samar. Appellant
was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her
boarding house. Her classmates had just brought her home from a
party (p. 44, tsn, May 23, 1984). Shortly after her classmates had
left, she knocked at the door of her boarding house (p. 5, ibid). All of
a sudden, somebody held her and poked a knife to her neck. She
then recognized appellant who was a frequent visitor of another
boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go
upstairs with him. Since the door which led to the first floor was
locked from the inside, appellant forced complainant to use the back
door leading to the second floor (p. 77, ibid). With his left arm
wrapped around her neck and his right hand poking a "balisong" to
her neck, appellant dragged complainant up the stairs (p. 14, ibid).
When they reached the second floor, he commanded her to look for
a room. With the Batangas knife still poked to her neck, they entered
complainant's room.
Upon entering the room, appellant pushed complainant who hit her
head on the wall. With one hand holding the knife, appellant
undressed himself. He then ordered complainant to take off her
clothes. Scared, she took off her T-shirt. Then he pulled off her bra,
pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He
made her hold his penis and insert it in her vagina. She followed his
order as he continued to poke the knife to her. At said position,
however, appellant could not fully penetrate her. Only a portion of
his penis entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount
him. In this position, only a small part again of his penis was inserted
into her vagina. At this stage, appellant had both his hands flat on
the floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant
pursued her and climbed the partition. When she saw him inside the
room, she ran to another room. Appellant again chased her. She fled
to another room and jumped out through a window (p. 27, ibid).
256
Still naked, she darted to the municipal building, which was about
eighteen meters in front of the boarding house, and knocked on the
door. When there was no answer, she ran around the building and
knocked on the back door. When the policemen who were inside the
building opened the door, they found complainant naked sitting on
the stairs crying. Pat. Donceras, the first policeman to see her, took
off his jacket and wrapped it around her. When they discovered what
happened, Pat. Donceras and two other policemen rushed to the
boarding house. They heard a sound at the second floor and saw
somebody running away. Due to darkness, they failed to apprehend
appellant.
Meanwhile, the policemen brought complainant to the Eastern
Samar Provincial Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A") which states:
Physical Examination — Patient is fairly built, came in with
loose clothing with no under-clothes; appears in state of
shock, per unambulatory.
PE Findings — Pertinent Findings only.
Neck- — Circumscribed hematoma at Ant. neck.
Breast — Well developed, conical in shape with prominent
nipples; linear abrasions below (L) breast.
Back — Multiple pinpoint marks.
Extremities — Abrasions at (R) and (L) knees.
Vulva — No visible abrasions or marks at the perineal area
or over the vulva, errythematous (sic) areas noted
surrounding vaginal orifice, tender, hymen intact; no
laceration fresh and old noted; examining finger can barely
enter and with difficulty; vaginal canal tight; no discharges
noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the
testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was
committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras
because they "show remarkable and vital inconsistencies and its incredibility
amounting to fabrication and therefore casted doubt to its candor, truth and
validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to
trivial inconsistencies which are not sufficient to blur or cast doubt on the
witnesses' straightforward attestations. Far from being badges of fabrication,
the inconsistencies in their testimonies may in fact be justifiably considered
as manifestations of truthfulness on material points. These little deviations
also confirm that the witnesses had not been rehearsed. The most candid
witnesses may make mistakes sometimes but such honest lapses do not
necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-
37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies
of the prosecution witnesses, discrepancies on minor details must be
viewed as adding credence and veracity to such spontaneous testimonies
(Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). As a matter of fact, complete uniformity in details
would be a strong indication of untruthfulness and lack of spontaneity
(People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609).
However, one of the alleged inconsistencies deserves a little discussion
which is, the testimony of the victim that the accused asked her to hold and
guide his penis in order to have carnal knowledge of her. According to the
accused, this is strange because "this is the only case where an aggressor's
advances is being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would have been
meritorious had the testimony of the victim ended there. The victim testified
further that the accused was holding a Batangas knife during the
aggression. This is a material part of the victim's testimony which the
accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the
findings of fact of the trial court on the credibility of witnesses should be
accorded the highest respect because it has the advantage of observing the
demeanor of witnesses and can discern if a witness is telling the truth
(People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor
the trial court's finding regarding the testimony of the victim (p 56, Rollo):
257
As correctly pointed out in the memorandum for the People, there is
not much to be desired as to the sincerity of the offended party in
her testimony before the court. Her answer to every question
profounded (sic), under all circumstances, are plain and
straightforward. To the Court she was a picture of supplication
hungry and thirsty for the immediate vindication of the affront to her
honor. It is inculcated into the mind of the Court that the accused
had wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that
is necessary to show that rape was committed provided her testimony is
clear and free from contradiction and her sincerity and candor, free from
suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA
487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA
280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA
400). The victim in this case did not only state that she was raped but she
testified convincingly on how the rape was committed. The victim's
testimony from the time she knocked on the door of the municipal building
up to the time she was brought to the hospital was corroborated by Pat.
Donceras. Interpreting the findings as indicated in the medical certificate, Dr.
Reinerio Zamora (who was presented in view of the unavailability of Dr.
Abude) declared that the abrasions in the left and right knees, linear
abrasions below the left breast, multiple pinpoint marks, circumscribed
hematoma at the anterior neck, erythematous area surrounding the vaginal
orifice and tender vulva, are conclusive proof of struggle against force and
violence exerted on the victim (pp. 52-53, Rollo). The trial court even
inspected the boarding house and was fully satisfied that the narration of the
scene of the incident and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe
enough to carry the weight of both accused and offended party
without the slightest difficulty, even in the manner as narrated. The
partitions of every room were of strong materials, securedly nailed,
and would not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape
complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983,
126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony
(opening) to the ground which was correctly estimated to be less
than eight (8) meters, will perhaps occasion no injury to a frightened
individual being pursued. Common experience will tell us that in
occasion of conflagration especially occuring (sic) in high buildings,
many have been saved by jumping from some considerable heights
without being injured. How much more for a frightened barrio girl,
 like the offended party to whom honor appears to be more valuable
than her life or limbs? Besides, the exposure of her private parts
when she sought assistance from authorities, as corroborated, is
enough indication that something not ordinary happened to her
unless she is mentally deranged. Sadly, nothing was adduced to
show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982,
117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her
having been rendered entirely naked by appellant and that even in
her nudity, she had to run away from the latter and managed to gain
sanctuary in a house owned by spouses hardly known to her. All
these acts she would not have done nor would these facts have
occurred unless she was sexually assaulted in the manner she
narrated.
The accused questions also the failure of the prosecution to present other
witnesses to corroborate the allegations in the complaint and the non-
presentation of the medico-legal officer who actually examined the victim.
Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their
necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29,
1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-
presentation of the medico-legal officer who actually examined the victim,
the trial court stated that it was by agreement of the parties that another
physician testified inasmuch as the medico-legal officer was no longer
available. The accused did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first
assignment of error fall flat on its face. Some were not even substantiated
and do not, therefore, merit consideration. We are convinced that the
accused is guilty of rape. However, We believe the subject matter that really
calls for discussion, is whether or not the accused's conviction
for frustrated rape is proper. The trial court was of the belief that there is no
conclusive evidence of penetration of the genital organ of the victim and
thus convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor
General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the
elements of the crime of rape:
258
Art. 335. When and how rape is committed. — Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious
and
3. When the woman is under twelve years of age, even though
neither of the circumstances mentioned in the two next preceding
paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having sexual bodily
connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. —
Consummated felonies as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated when
the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the
perpetrator.
There is an attempt when the offender commences the commission
of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and
consummated stages apply to the crime of rape. Our concern now is
1âwphi1
whether or not the frustrated stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed
all the acts of execution which would produce the felony and (2) that the
felony is not produced due to causes independent of the perpetrator's will. In
the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated felonies which
is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender,
after beginning the commission of the crime by overt acts, is
prevented, against his will, by some outside cause from performing
all of the acts which should produce the crime. In other words, to be
an attempted crime the purpose of the offender must be thwarted by
a foreign force or agency which intervenes and compels him to stop
prior to the moment when he has performed all of the acts which
should produce the crime as a consequence, which acts it is his
intention to perform. If he has performed all of the acts which should
result in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential element
which distinguishes attempted from frustrated felony is that, in the
latter, there is no intervention of a foreign or extraneous cause or
agency between the beginning of the commission of the crime and
the moment when all of the acts have been performed which should
result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his voluntary
desistance.
Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender, because he
has performed the last act necessary to produce the crime.Thus, the felony
is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527;
People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886,
April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August
21, 1974, 58 SCRA 505), We have set the uniform rule that for the
consummation of rape, perfect penetration is not essential. Any penetration
of the female organ by the male organ is sufficient. Entry of the labia or lips
of the female organ, without rupture of the hymen or laceration of the vagina
is sufficient to warrant conviction. Necessarily, rape is attempted if there is
no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People
v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9 Phil.
434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into
account the nature, elements and manner of execution of the crime of rape
and jurisprudence on the matter, it is hardly conceivable how the frustrated
stage in rape can ever be committed.
259
Of course, We are aware of our earlier pronouncement in the case of
People v. Eriña 50 Phil. 998 [1927] where We found the offender guilty of
frustrated rape there being no conclusive evidence of penetration of the
genital organ of the offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our subsequent
decisions. Likewise, We are aware of Article 335 of the Revised Penal
Code, as amended by Republic Act No. 2632 (dated September 12, 1960)
and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted
or frustrated and a homicide is committed by reason or on the occasion
thereof. We are of the opinion that this particular provision on frustrated rape
is a dead provision. The Eriña case, supra, might have prompted the law-
making body to include the crime of frustrated rape in the amendments
introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the
genital organ of the victim, the trial court relied on the testimony of Dr.
Zamora when he "categorically declared that the findings in the vulva does
not give a concrete disclosure of penetration. As a matter of fact, he tossed
back to the offended party the answer as to whether or not there actually
was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p.
57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate
(Exhibit "A") as interpreted by Dr. Reinerio Zamora and the
equivocal declaration of the latter of uncertainty whether there was
penetration or not. It is true, and the Court is not oblivious, that
conviction for rape could proceed from the uncorroborated testimony
of the offended party and that a medical certificate is not necessary
(People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the
citations the people relied upon cannot be applicable to the instant
case. The testimony of the offended party is at variance with the
medical certificate. As such, a very disturbing doubt has surfaced in
the mind of the court. It should be stressed that in cases of rape
where there is a positive testimony and a medical certificate, both
should in all respect, compliment each other, for otherwise to rely on
the testimony alone in utter disregard of the manifest variance in the
medical certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical
certificate does not exist. On the contrary, it is stated in the medical
certificate that the vulva was erythematous (which means marked by
abnormal redness of the skin due to capillary congestion, as in
inflammation) and tender. It bears emphasis that Dr. Zamora did not rule
out penetration of the genital organ of the victim. He merely testified that
there was uncertainty whether or not there was penetration. Anent this
testimony, the victim positively testified that there was penetration, even if
only partially (pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply, or what act do you
referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted
even on the sole basis of the victim's testimony if credible (People v.
Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v.
Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v.
Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349).
Moreover, Dr. Zamora's testimony is merely corroborative and is not an
indispensable element in the prosecution of this case (People v.
Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the
scale in favor of the accused because after a thorough review of the
records, We find the evidence sufficient to prove his guilt beyond reasonable
doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever
the crime of rape is committed with the use of a deadly weapon, the penalty
shall be reclusion perpetua to death. The trial court appreciated the
aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1)
of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos.
L-38968-70, February 9, 1989, that the cited Constitutional provision did not
declare the abolition of the death penalty but merely prohibits the imposition
of the death penalty, the Court has since February 2, 1987 not imposed the
death penalty whenever it was called for under the Revised Penal Code but
instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R.
Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single
indivisible penalty under Article 335, paragraph 3, is imposed regardless of
260
any mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713,
March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449,
November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744,
May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby
MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
reasonable doubt of the crime of rape and sentenced to reclusion
perpetua as well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.
EN BANC
[G.R. No. 129433. March 30, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO
CAMPUHAN Y BELLO, accused.
DECISION
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita finally did
[1]
away with frustrated rape and allowed only attempted rape
[2]
and consummated rape to remain in our statute books. The
instant case lurks at the threshold of another emasculation
of the stages of execution of rape by considering almost
every attempt at sexual violation of a woman as
consummated rape, that is, if the contrary view were to be
adopted. The danger there is that that concept may send
the wrong signal to every roaming lothario, whenever the
opportunity bares itself, to better intrude with
climactic gusto, sans any restraint, since after all any
attempted fornication would be considered consummated
rape and punished as such. A mere strafing of the citadel
of passion would then be considered a deadly fait
accompli, which is absurd.
In Orita we held that rape was consummated from the
moment the offender had carnal knowledge of the victim
since by it he attained his objective. All the elements of the
offense were already present and nothing more was left for
the offender to do, having performed all the acts necessary
to produce the crime and accomplish it. We ruled then that
perfect penetration was not essential; any penetration of
the female organ by the male organ, however slight, was
sufficient. The Court further held that entry of the labia or
lips of the female organ, even without rupture of the hymen
or laceration of the vagina, was sufficient to warrant
conviction for consummated rape. We distinguished
consummated rape from attempted rape where there
was no penetration of the female organ because not all
acts of execution were performed as the offender merely
commenced the commission of a felony directly by overt
acts. The inference that may be derived therefrom is that
[3]
complete or full penetration of the vagina is not required for
rape to be consummated. Any penetration, in whatever
degree, is enough to raise the crime to its consummated
stage.
But the Court in Orita clarified the concept of penetration in
rape by requiring entry into the labia or lips of the female
organ, even if there be no rupture of the hymen or
laceration of the vagina, to warrant a conviction for
consummated rape. While the entry of the penis into the
lips of the female organ was considered synonymous
with mere touching of the external genitalia, e.g., labia
majora, labia minora, etc., the crucial doctrinal bottom line
[4]
is that touching must be inextricably viewed in light of, in
relation to, or as an essential part of, the process of penile
penetration, and not just mere touching in the ordinary
261
sense. In other words, the touching must be tacked to the
penetration itself. The importance of the requirement of
penetration, however slight, cannot be gainsaid because
where entry into the labia or the lips of the female genitalia
has not been established, the crime committed amounts
merely to attempted rape.
Verily, this should be the indicium of the Court in
determining whether rape has been committed either in its
attempted or in its consummated stage; otherwise, no
substantial distinction would exist between the two, despite
the fact that penalty-wise, this distinction, threadbare as it
may seem, irrevocably spells the difference between life
and death for the accused - a reclusive life that is not
even perpetua but only temporal on one hand, and the
ultimate extermination of life on the other. And, arguing on
another level, if the case at bar cannot be deemed
attempted but consummated rape, what then would
constitute attempted rape? Must our field of choice be thus
limited only to consummated rape and acts of
lasciviousness since attempted rape would no longer be
possible in light of the view of those who disagree with
this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty
of statutory rape and sentenced by the court a quo to the
extreme penalty of death, hence this case before us on
[5]
automatic review under Art. 335 of the Revised Penal Code
as amended by RA 7659. [6]
As may be culled from the evidence on record, on 25 April
1996, at around 4 oclock in the afternoon, Ma. Corazon P.
Pamintuan, mother of four (4)-year old Crysthel Pamintuan,
went down from the second floor of their house to prepare
Milo chocolate drinks for her two (2) children. At the ground
floor she met Primo Campuhan who was then busy filling
small plastic bags with water to be frozen into ice in the
freezer located at the second floor. Primo was a helper of
Conrado Plata Jr., brother of Corazon. As Corazon was
busy preparing the drinks, she heard one of her daughters
cry, "Ayo'ko, ayo'ko!" prompting Corazon to rush upstairs.
[7]
Thereupon, she saw Primo Campuhan inside her childrens
room kneeling before Crysthel whose pajamas or "jogging
pants" and panty were already removed, while his short
pants were down to his knees.
According to Corazon, Primo was forcing his penis into
Crysthels vagina. Horrified, she cursed the accused, "P - t -
ng ina mo, anak ko iyan!" and boxed him several times. He
evaded her blows and pulled up his pants. He pushed
Corazon aside when she tried to block his path. Corazon
then ran out and shouted for help thus prompting her
brother, a cousin and an uncle who were living within their
compound, to chase the accused. Seconds later, Primo
[8]
was apprehended by those who answered Corazon's call
for help. They held the accused at the back of their
compound until they were advised by their neighbors to call
the barangay officials instead of detaining him for his
misdeed. Physical examination of the victim yielded
negative results. No evident sign of extra-genital physical
injury was noted by the medico-legal officer on Crysthels
body as her hymen was intact and its orifice was only 0.5
cm. in diameter.
Primo Campuhan had only himself for a witness in his
defense. He maintained his innocence and assailed the
charge as a mere scheme of Crysthel's mother who
allegedly harbored ill will against him for his refusal to run
an errand for her. He asserted that in truth Crysthel was in
[9]
a playing mood and wanted to ride on his back when she
suddenly pulled him down causing both of them to fall
down on the floor. It was in this fallen position that Corazon
262
chanced upon them and became hysterical. Corazon
slapped him and accused him of raping her child. He got
mad but restrained himself from hitting back when he
realized she was a woman. Corazon called for help from
her brothers to stop him as he ran down from the second
floor.
Vicente, Corazon's brother, timely responded to her call for
help and accosted Primo. Vicente punched him and
threatened to kill him. Upon hearing the threat, Primo
immediately ran towards the house of Conrado Plata but
Vicente followed him there. Primo pleaded for a chance to
explain as he reasoned out that the accusation was not
true. But Vicente kicked him instead. When Primo saw
Vicente holding a piece of lead pipe, Primo raised his
hands and turned his back to avoid the blow. At this
moment, the relatives and neighbors of Vicente prevailed
upon him to take Primo to the barangay hall instead, and
not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the
trial court on 27 May 1997 found him guilty of statutory
rape, sentenced him to the extreme penalty of death, and
ordered him to pay his victim P50,000.00 for moral
damages, P25,000.00 for exemplary damages, and the
costs.
The accused Primo Campuhan seriously assails the
credibility of Ma. Corazon Pamintuan. He argues that her
narration should not be given any weight or credence since
it was punctured with implausible statements and
improbabilities so inconsistent with human nature and
experience. He claims that it was truly inconceivable for
him to commit the rape considering that Crysthels younger
sister was also in the room playing while Corazon was just
downstairs preparing Milo drinks for her daughters. Their
presence alone as possible eyewitnesses and the fact that
the episode happened within the family compound where a
call for assistance could easily be heard and responded to,
would have been enough to deter him from committing the
crime. Besides, the door of the room was wide open for
anybody to see what could be taking place inside. Primo
insists that it was almost inconceivable that Corazon could
give such a vivid description of the alleged sexual contact
when from where she stood she could not have possibly
seen the alleged touching of the sexual organs of the
accused and his victim. He asserts that the absence of any
external signs of physical injuries or of penetration of
Crysthels private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily
on the testimony of Corazon that she saw Primo with his
short pants down to his knees kneeling before Crysthel
whose pajamas and panty were supposedly "already
removed" and that Primo was "forcing his penis into
Crysthels vagina." The gravamen of the offense of statutory
rape is carnal knowledge of a woman below twelve (12), as
provided in Art. 335, par. (3), of the Revised Penal Code.
Crysthel was only four (4) years old when sexually
molested, thus raising the penalty, from reclusion
perpetua to death, to the single indivisible penalty of death
under RA 7659, Sec. 11, the offended party being below
seven (7) years old. We have said often enough that in
concluding that carnal knowledge took place, full
penetration of the vaginal orifice is not an essential
ingredient, nor is the rupture of the hymen necessary;
the mere touching of the external genitalia by the penis
capable of consummating the sexual act is sufficient to
constitute carnal knowledge. But the act
[10]
of touching should be understood here as inherently part of
the entry of the penis into the labias of the female organ
263
and not mere touching alone of the mons pubis or
the pudendum.
In People v. De la Pea we clarified that the decisions
[11]
finding a case for rape even if the attackers penis merely
touched the external portions of the female genitalia were
made in the context of the presence or existence of an
erect penis capable of full penetration. Where the accused
failed to achieve an erection, had a limp or flaccid penis, or
an oversized penis which could not fit into the victim's
vagina, the Court nonetheless held that rape was
consummated on the basis of the victim's testimony that
the accused repeatedly tried, but in vain, to insert his penis
into her vagina and in all likelihood reached the labia of
her pudendum as the victim felt his organ on the lips of her
vulva, or that the penis of the accused touched the middle
[12]
part of her vagina. Thus, touching when applied to rape
[13]
cases does not simply mean mere epidermal contact,
stroking or grazing of organs, a slight brush or a scrape of
the penis on the external layer of the victims vagina, or
the mons pubis, as in this case. There must be sufficient
and convincing proof that the penis
indeed touched the labias or slid into the female organ,
and not merely stroked the external surface thereof, for an
accused to be convicted of consummated rape. As [14]
the labias, which are required to be "touched" by the penis,
are by their natural situs or location beneath the mons
pubis or the vaginal surface, to touch them with the penis is
to attain some degree of penetration beneath the surface,
hence, the conclusion that touching the labia majora or
the labia minora of the pudendum constitutes
consummated rape.
The pudendum or vulva is the collective term for the female
genital organs that are visible in the perineal area,
e.g., mons pubis, labia majora, labia minora, the hymen,
the clitoris, the vaginal orifice, etc. The mons pubis is the
rounded eminence that becomes hairy after puberty, and is
instantly visible within the surface. The next layer is
the labia majora or the outer lips of the female organ
composed of the outer convex surface and the inner
surface. The skin of the outer convex surface is covered
with hair follicles and is pigmented, while the inner surface
is a thin skin which does not have any hair but has many
sebaceous glands. Directly beneath the labia majora is
the labia minora. Jurisprudence dictates that the labia
[15]
majora must be entered for rape to be consummated, and [16]
not merely for the penis to stroke the surface of the female
organ. Thus, a grazing of the surface of the female organ
or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any
showing of the slightest penetration of the female organ,
i.e., touching of either labia of the pudendum by the penis,
there can be no consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been
confined to the oft-quoted "touching of the female
organ," but has also progressed into being described as
[17]
"the introduction of the male organ into the labia of
the pudendum," or "the bombardment of the
[18]
drawbridge." But, to our mind, the case at bar merely
[19]
constitutes a "shelling of the castle of orgasmic potency,"
or as earlier stated, a "strafing of the citadel of passion."
A review of the records clearly discloses that the
prosecution utterly failed to discharge its onus of proving
that Primos penis was able to penetrate Crysthels vagina
however slight. Even if we grant arguendo that Corazon
witnessed Primo in the act of sexually molesting her
daughter, we seriously doubt the veracity of her claim that
she saw the inter-genital contact between Primo and
264
Crysthel. When asked what she saw upon entering her
childrens room Corazon plunged into saying that she saw
Primo poking his penis on the vagina of Crysthel without
explaining her relative position to them as to enable her to
see clearly and sufficiently, in automotive lingo, the contact
point. It should be recalled that when Corazon chanced
upon Primo and Crysthel, the former was allegedly in a
kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way
that the chest of the accused is pinning down
the victim, while his right hand is holding his
penis and his left hand is spreading the legs of
the victim).
It can reasonably be drawn from the foregoing narration
that Primos kneeling position rendered an unbridled
observation impossible. Not even a vantage point from the
side of the accused and the victim would have provided
Corazon an unobstructed view of Primos penis supposedly
reaching Crysthels external genitalia, i.e., labia
majora, labia minora, hymen, clitoris, etc., since the legs
and arms of Primo would have hidden his movements from
Corazons sight, not to discount the fact that Primos right
hand was allegedly holding his penis thereby blocking it
from Corazons view. It is the burden of the prosecution to
establish how Corazon could have seen the sexual
contact and to shove her account into the permissive
sphere of credibility. It is not enough that she claims that
she saw what was done to her daughter. It is required that
her claim be properly demonstrated to inspire belief. The
prosecution failed in this respect, thus we cannot conclude
without any taint of serious doubt that inter-genital
contact was at all achieved. To hold otherwise would be to
resolve the doubt in favor of the prosecution but to run
roughshod over the constitutional right of the accused to be
presumed innocent.
Corazon insists that Primo did not restrain himself from
pursuing his wicked intention despite her timely
appearance, thus giving her the opportunity to fully witness
his beastly act.
We are not persuaded. It is inconsistent with mans instinct
of self-preservation to remain where he is and persist in
satisfying his lust even when he knows fully well that his
dastardly acts have already been discovered or witnessed
by no less than the mother of his victim. For, the normal
behavior or reaction of Primo upon learning of Corazons
presence would have been to pull his pants up to avoid
being caught literally with his pants down. The interval,
although relatively short, provided more than enough
opportunity for Primo not only to desist from but even to
conceal his evil design.
What appears to be the basis of the conviction of the
accused was Crysthel's answer to the question of the court
- penetrate his victim.
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her
organ, she readily said, "No." Thus -
Q: But did his penis penetrate your organ?
A: No, sir.
[20]
265
This testimony alone should dissipate the mist of confusion
that enshrouds the question of whether rape in this case
was consummated. It has foreclosed the possibility of
Primos penis penetrating her vagina, however slight.
Crysthel made a categorical statement denying
penetration, obviously induced by a question propounded
[21]
to her who could not have been aware of the finer
distinctions between touching and penetration.
Consequently, it is improper and unfair to attach to this
reply of a four (4)-year old child, whose vocabulary is yet
as underdeveloped as her sex and whose language is
bereft of worldly sophistication, an adult interpretation that
because the penis of the accused touched her organ there
was sexual entry. Nor can it be deduced that in trying to
penetrate the victim's organ the penis of the
accused touched the middle portion of her vagina and
entered the labia of her pudendum as the prosecution
failed to establish sufficiently that Primo made efforts to
penetrate Crysthel. Corazon did not say, nay, not even
[22]
hint that Primo's penis was erect or that he responded with
an erection. On the contrary, Corazon even narrated that
[23]
Primo had to hold his penis with his right hand, thus
showing that he had yet to attain an erection to be able to
Antithetically, the possibility of Primos penis having
breached Crysthels vagina is belied by the child's own
assertion that she resisted Primos advances by putting her
legs close together; consequently, she did not feel any
[24]
intense pain but just felt "not happy" about what Primo did
to her. Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray
[25]
ko, aray ko!" In cases where penetration was not fully
established, the Court had anchored its conclusion that
rape nevertheless was consummated on the victim's
testimony that she felt pain, or the medico-legal finding
of discoloration in the inner lips of the vagina, or the labia
minora was already gaping with redness, or the hymenal
tags were no longer visible. None was shown in this case.
[26]
Although a child's testimony must be received with due
consideration on account of her tender age, the Court
endeavors at the same time to harness only what in her
story appears to be true, acutely aware of the equally
guaranteed rights of the accused. Thus, we have to
conclude that even on the basis of the testimony of
Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's
finding in this case that there were no external signs of
physical injuries on complaining witness body to conclude
from a medical perspective that penetration had taken
place. As Dr. Aurea P. Villena explained, although the
absence of complete penetration of the hymen does not
negate the possibility of contact, she clarified that there
was no medical basis to hold that there was sexual contact
between the accused and the victim. [27]
In cases of rape where there is a positive testimony and a
medical certificate, both should in all respects complement
each other; otherwise, to rely on the testimonial evidence
alone, in utter disregard of the manifest variance in the
medical certificate, would be productive of unwarranted or
even mischievous results. It is necessary to carefully
ascertain whether the penis of the accused in reality
entered the labial threshold of the female organ to
accurately conclude that rape was consummated. Failing in
this, the thin line that separates attempted rape from
consummated rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal
Code, rape is attempted when the offender commences the
commission of rape directly by overt acts, and does not
266
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. All the elements of
attempted rape - and only of attempted rape - are present
in the instant case, hence, the accused should be punished
only for it.
The penalty for attempted rape is two (2) degrees lower
than the imposable penalty of death for the offense
charged, which is statutory rape of a minor below seven (7)
years. Two (2) degrees lower is reclusion temporal, the
range of which is twelve (12) years and one (1) day to
twenty (20) years. Applying the Indeterminate Sentence
Law, and in the absence of any mitigating or aggravating
circumstance, the maximum of the penalty to be imposed
upon the accused shall be taken from the medium period
of reclusion temporal, the range of which is fourteen (14)
years, eight (8) months and (1) day to seventeen (17)
years and four (4) months, while the minimum shall be
taken from the penalty next lower in degree, which
is prision mayor, the range of which is from six (6) years
and one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding
accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of
statutory rape and sentencing him to death and to pay
damages is MODIFIED. He is instead found guilty of
ATTEMPTED RAPE and sentenced to an indeterminate
prison term of eight (8) years four (4) months and ten (10)
days of prision mayor medium as minimum, to fourteen
(14) years ten (10) months and twenty (20) days
of reclusion temporal medium as maximum. Costs de
oficio.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes,
Ynares-Santiago, and De Leon, Jr., JJ., concur.
Panganiban, J., in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13785 October 8, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
TOMAS ADIAO, defendant-appellant.
Victoriano Yamzon for appellant.
Attorney-General Paredes for appellee.
MALCOLM, J.:
The defendant was charged in the Municipal Court of the city of Manila with
the crime of theft. He was found guilty of the lesser crime of frustrated theft.
He appealed to the Court of First Instance of the city of Manila and again he
was found guilty of the crime of frustrated theft, and was sentenced to pay a
fine of P100, with subsidiary imprisonment in case of insolvency, and to pay
the costs.
The sole error assigned on appeal is that the lower court erred in holding
that the defendant was guilty of the crime of theft as dis closed by the facts
appearing of record. We have examined the evidence carefully and from our
study are unable to say that the proof is contrary to the findings of the lower
court. Stated in one sentence, the defendant, Tomas Adiao, a customs
inspector, abstracted a leather belt valued at P0.80, from the baggage of a
Japanese named T. Murakami, and secreted the belt in his desk in the
Custom House, where it was found by other customs employees.
267
Based on these facts, the Court is of the opinion that the crime can not
properly be classified as frustrated, as this word is defined in article 3 of the
Penal Code, but that since the offender performed all of the acts of
execution necessary for the accomplishment crime of theft. The fact that the
defendant was under observation during the entire transaction and that he
was unable to get the merchandise out of the Custom House, is not
decisive; all the elements of the completed crime of theft are present. The
following decisions of the supreme court of Spain are in point:
The defendant was charged with the theft of some fruit from the land
of another. As he was in the act of taking the fruit he was seen by a
policeman, yet it did not appear that he was at that moment caught
by the policeman but sometime later. The court said: ". . . The trial
court did not err . . . in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the
accused take the fruit from the adjoining land arrested him in the act
and thus prevented him from taking full possession of the thing
stolen and even its utilization by him for an interval of time. (Decision
of the supreme court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was
hearing mass in a church. The latter on account of the solemnity of the act,
although noticing the theft, did not do anything to prevent it. Subsequently,
however, while the defendant was still inside the church, the offended party
got back the money from the defendant. The court said that the defendant
had performed all the acts of execution and considered the theft as
consummated. (Decision of the supreme court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a
key opened up a case, and from the case took a small box, which was also
opened with a key, from which in turn he took a purse containing 461 reales
and 20 centimos, and then placed the money over the cover of the case;
just at this moment he was caught by two guards who were stationed in
another room near-by. The court considered this as consummated robbery,
and said: " . . . The accused . . . having materially taken possession of the
money from the moment he took it from the place where it had been, and
having taken it with his hands with intent to appropriate the same, he
executed all the acts necessary to constitute the crime which was thereby
produced; only the act of making use of the thing having been frustrated,
which, however, does not go to make the elements of the consummated
crime. (Decision of the supreme court of Spain, June 13, 1882.)
There exists the aggravating circumstance that advantage was taken by the
offender of his public position. Wherefore, in view of the provisions of
articles 517 and 518, No. 5, of the Penal Code, and there being present one
aggravating circumstance compensated by no mitigating circumstances, the The defendants are charged with the crime of arson
penalty must be imposed in the maximum degree.
committed, according to the complaint, as follows:
1awph!l.net

Judgment is reversed and the defendant and appellant is sentenced to three

months and one day of arresto mayor, with the costs of all instances against That on or about midnight of the 4th of May, 1923,
him. The merchandise in question, attached to the record as Exhibit A, shall in the sitio of Capipian, barrio of Lope de Vega,
be returned to the lawful owner, T. Murakami. So ordered.
municipality of Catarman, Province of Samar,
Torres, Johnson, Street, Avanceña and Fisher, JJ., concur. Philippine Islands, and within the jurisdiction of this
court, the above named defendants with
premeditation and confederating together, provided
themselves with dynamite and criminally place it
and cause the same to explode on the door of the
house inhabited by Casimiro Abria and his family,
which dynamite or explosive substance exploded
EN BANC
and burnt the ceiling of said house; as a result of
G.R. No. L-22345 October 10, 1924 which a part of said house was destroyed; the
damage caused not exceeding 6,250 pesetas. chanroble svirtualawl ibra ry chan roble s virtual law lib rary

THE PEOPLE OF THE PHILIPPINE

ISLANDS, Plaintiff-Appellee, vs. FELIPE DIÑO, ET Contrary to law.
AL., defendants.
The appellants pray for the reversal of the
FELIPE DIÑO and FORTUNATO
judgment appealed from, while the Attorney-
LAURISTO, appellants.
General prays for the modification thereof in the
Jose Avelino and Vicente de Vera for appellants. sense that the penalty of from four months and
Attorney-General Villa-Real for appellee. twenty-one days to six months of arresto mayor be
imposed upon the defendants, under the provision
VILLAMOR, J.: of article 557, paragraph 1, of the Penal Code. chanroblesv irt ualawli bra ry chan roble s virtual law l ibra ry

The Court of First Instance of Samar sentenced the After a careful study of the record, we are of the
appellants to be imprisoned for ten years and one opinion, and so hold, that the guilt of the
day of presidio mayor, with the accessories defendants does not appear duly proven beyond a
prescribed by law, to indemnify Casimiro Abria reasonable doubt, as is required for the imposition
jointly and severally in the sum of P10, and to pay of the penalty fixed by the law. chanroble svi rtualawl ib rary chan rob les vi rt ual law lib rary

the costs.
There is in the record no direct evidence of the
chanroblesvi rtualaw lib rary cha nrob les vi rtual law lib rary

commission of the crime by the defendants. None

268
of the witnesses has seen the dynamite which, it is
said, they caused to explode in the house of the
offended Casimiro Abria. Indeed the Attorney-
General says in his brief: "It is true that none of the
witnesses for the prosecution has seen the
defendants Felipe Diño and Fortunato Lauristo on
the night of May 4, 1923, at the act of firing the
dynamite that set fire to the ceiling of the house of
Casimiro Abria and unnailed several boards from its
wall, but the circumstances of record in this case
are so clear and conclusive that no other conclusion
is possible than that the herein appellants Felipe
Diño and Fortunato Lauristo were the authors of the
explosion that caused a part of the ceiling of the
house of Casimiro Abria to burn."
What are these circumstances? They are made to
consists in the facts testified to by Andres Borca
and Enrique Horogon. chanroblesvi rtualaw lib rary
The witness Andres Borca says that about the
month of February, 1923, the accused Felipe Diño
proposed to him to cause a dynamite to explode in
the house of Casimiro Abria, telling him, "Andres
there is a dynamite here; fire it in the house of
Casimiro Abria," which the witness refused to do,
because he did not known how to fire a dynamite.
This seems to indicate the guilt of the accused
Felipe Diño; but if it is considered that the
testimony of the witness Borca is not corroborated
in any manner and is denied by the accused Felipe
Diño, and that Borca has not seen any dynamite or
other explosive substance in Felipe's possession, it
cannot be said in reason that his testimony
constitutes a strong and conclusive evidence of
guilt of the accused Felipe Diño. chanrob lesvi rtua lawlib rary cha nro bles virtual law lib rary
The witness Enrique Horogon says that he was
invited by Gabriel Diño on the night of the 4th of
May, 1923, to go out fishing on a boat. This witness
says, further, that upon their arrival at the place
known as Iraya of the barrio of Lope de Vega his
companions left them on the boat; that then he
heard an explosion and a little later the accused
came back in a hurry to the boat and in their return
Felipe Diño warned him not to reveal to anybody
that he (Felipe Diño) had ordered the accused
Lauristo to fire a dynamite in the house of Casimiro
chanrobles vi rtua l law lib ra ry
Abria.
chan roble svirtualawl ibra ry chan rob les vi rtual law lib rary
But is it true that Horogon was invited by Gabriel
Diño on the night in question to go out on a boat
cha nrob les vi rtual law lib rary
with the defendants up to the place known as
Iraya? The record does not disclose any
confirmation of the testimony of Horogon; on the
contrary it is denied by the Diño defendants and
the circumstances of the voyage on the boat and of
the warning that Horogon puts in the mouth of
Felipe make it completely incredible. If after all,
Horogon had no part to perform in connection with
the supposed igniting of the dynamite, what
necessity did the accused have to take him on the
boat? If Horogon, at any rate, did not know where
the defendants went after they had left him on the
boat, nor did he see Lauristo fire the dynamite in
the house of Abria, what necessity did Felipe have
to caution him not to tell anything about what they
(the defendants) had done? By instinct the criminal
269
avoids the presence of witnesses who may
denounce the commission of the crime; and the
case now related by the witness Horogon is so rare
that without a strong corroboration, as is the case
here, we cannot believe it. And upon this ground,
the case must be dismissed as to the defendant
Gabriel Diño.chanroble svirtualawl ibra ry chan roble s virtual law l ibra ry
The fact itself of the explosion of the dynamite
related by the offended Abria is not free from
doubt. According to this witness, at about midnight
of May 4, 1923, while he was sleeping in company
with eight persons in his house situated in the sitio
of Capipian, barrio of Lope de Vega, municipality of
Catarman, Province of Samar, he was awakened by
a strong explosion, which he supposed had burst
out in his house; he immediately stood up, and
went to the place where he believed the explosion
had taken place, and found a part of the wall that
was contiguous to the door destroyed, and the
ceiling of the house burning; he called his servant
and both of them succeeded in putting out the fire.
As a result of said explosion, the hemp fiber baled
and deposited behind the main door of the house
was scattered and a part of the ceiling, which was
of anahaw, burnt, thus presenting a hole which was
one foot in diameter, four boards having been
unnailed and a hole made on the wooden floor. On
the next day he reported the matter to the
municipal president of Catarman who repaired to
the place of the event and saw that the damage
caused by the explosion would amount to P10.
chanroblesvi rtualaw lib rary
According to the testimony of the witness Abria the
explosion seems to have taken place on the
exterior part of his house near the main door,
destroying the wall contiguous to the door through
which it entered, scattering the hemp fiber which
was baled and deposited behind said door, and
unnailing four boards of the wall; but such a
hypothesis cannot be reconciled with the fact of an
opening one foot in diameter having been made on
the wooden floor of the house, and another of equal
size on the ceiling of anahaw, unless it is granted
that the explosion was so strong that a part of the
explosive was thrown against the unnailed boards,
another part against the floor, making an opening
thereon, and still another against the ceiling. But
then it cannot be explained how the eight persons
who were sleeping in the same room, which
contained an area of only about 12
square brazas and formed one single compartment,
did not suffer the slightest injury. chanroblesv irt ualawli bra ry chanrob les vi rtual law lib rary
Without the necessity of expounding other
hypotheses which may be drawn from the
testimony of Abria, and taking into account that the
same witnesses, Borca and Horogon, have not seen
any dynamite in possession of the defendants, or in
those of Felipe, Diño, or in the boat on the night in
question, we conclude that if the circumstances
stated by said witnesses indicate anything, they are
not so convincing or conclusive as to establish the
guilt of the defendants beyond a reasonable
cha nrob les vi rtua l law lib rary doubt.chanroblesvi rt ualawlib ra ry chan robles v irt ual law li bra ry
270
According to Rule 52 of the Provincial Law for the - versus - GUTIERREZ,
Application of the Provisions of the Penal Code, in CARPIO,
order that a conviction may be sustained upon MARTINEZ,
circumstantial evidence alone, it is necessary , first, CORONA,
that the circumstances be more than one; second, CARPIO MORALES,
that the facts upon which they are based be AZCUNA,
proven; and third, that, taken together, they TINGA,
convince the mind in such a manner as not to leave CHICO-NAZARIO,
any room for reasonable doubt as to the guilt of the GARCIA,
accused in the natural and ordinary course of VELASCO, and
things. And this is substantially the same rule PEOPLE OF THE PHILIPPINES NACHURA, JJ.
established by the jurisprudence of this court. (U. and HON. COURT OF APPEALS,
S. vs. Perez, 2 Phil., 171; U. S. vs. Douglass, 2 Respondents.
Phil., 461; U. S. vs. Reyes, 3 Phil., 3; U. Promulgated:
S. vs.Villos, 6 Phil., 510.)
chanrobles vi rt ual law li bra ry

For all of the foregoing, the judgment appealed June 21, 2007
from must be reversed, and the appellants Felipe
Diño and Fortunato Lauristo be, as they are hereby, x---------------------------------------------------------------------
acquitted with the costs de oficio. So ordered. chanroble svirtualawl ibra ry chan roble s virtual law l ibra ry -------x

Johnson, Malcolm, Avanceña, Ostrand and

Romualdez, JJ., concur. DECISION
EN BANC TINGA, J.:

ARISTOTEL VALENZUELA y G. R. No. 160188 This case aims for prime space in the firmament of our
NATIVIDAD, criminal law jurisprudence. Petitioner effectively concedes
Petitioner, Present: having performed the felonious acts imputed against him, but
instead insists that as a result, he should be adjudged guilty of
PUNO, C.J., frustrated theft only, not the felony in its consummated stage
QUISUMBING, of which he was convicted. The proposition rests on a common
SANTIAGO, theory expounded in two well-known decisions[1] rendered
271
decades ago by the Court of Appeals, upholding the existence
of frustrated theft of which the accused in both cases were
found guilty. However, the rationale behind the rulings has
never been affirmed by this Court.
As far as can be told,[2] the last time this Court
extensively considered whether an accused was guilty of
frustrated or consummated theft was in 1918, in People v.
Adiao.[3] A more cursory
treatment of the question was followed in 1929, in People v.
Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition
now gives occasion for us to finally and fully measure if or
how frustrated theft is susceptible to commission under the
Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case
stems from an Information[6] charging petitioner Aristotel
Valenzuela (petitioner) and Jovy Calderon (Calderon) with the
crime of theft. On 19 May 1994, at around 4:30 p.m.,
petitioner and Calderon were sighted outside the Super Sale
Club, a supermarket within the ShoeMart (SM) complex
along North EDSA, by Lorenzo Lago (Lago), a security guard
who was then manning his post at the open parking area of the
supermarket. Lago saw petitioner, who was wearing an
identification card with the mark Receiving Dispatching Unit
(RDU), hauling a push cart with cases of detergent of the well-
272
known Tide brand. Petitioner unloaded these cases in an open
parking space, where Calderon was waiting. Petitioner then
returned inside the supermarket, and after five (5) minutes,
emerged with more cartons of Tide Ultramatic and again
unloaded these boxes to the same area in the open parking
space.[7]
Thereafter, petitioner left the parking area and haled a
taxi. He boarded the cab and directed it towards the parking
space where Calderon was waiting. Calderon loaded the
cartons of Tide Ultramatic inside the taxi, then boarded the
vehicle. All these acts were eyed by Lago, who proceeded to
stop the taxi as it was leaving the open parking area. When
Lago asked petitioner for a receipt of the merchandise,
petitioner and Calderon reacted by fleeing on foot, but Lago
fired a warning shot to alert his fellow security guards of the
incident. Petitioner and Calderon were apprehended at the
scene, and the stolen merchandise recovered.[8] The filched
items seized from the duo were four (4) cases of Tide
Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate
value of P12,090.00.[9]
Petitioner and Calderon were first brought to the SM security
office before they were transferred on the same day to the
Baler Station II of the Philippine National Police, Quezon City,
for investigation. It appears from the police investigation
records that apart from petitioner and Calderon, four (4) other
persons were apprehended by the security guards at the scene
and delivered to police custody at the Baler PNP Station in
connection with the incident. However, after the matter was
referred to the Office of the Quezon City Prosecutor, only
petitioner and Calderon were charged with theft by the
Assistant City Prosecutor, in Informations prepared on 20 May
1994, the day after the incident.[10]
After pleading not guilty on arraignment, at the trial, petitioner
and Calderon both claimed having been innocent bystanders
within the vicinity of the Super Sale Club on the afternoon
of 19 May 1994 when they were haled by Lago and his fellow
security guards after a commotion and brought to the Baler
PNP Station. Calderon alleged that on the afternoon of the
incident, he was at the Super Sale Club to withdraw from his
ATM account, accompanied by his neighbor, Leoncio
Rosulada.[11] As the queue for the ATM was long, Calderon
and Rosulada decided to buy snacks inside the supermarket. It
was while they were eating that they heard the gunshot fired by
Lago, leading them to head out of the building to check what
was
transpiring. As they were outside, they were suddenly grabbed
by a security guard, thus commencing their
[12]
detention. Meanwhile, petitioner testified during trial that he
and his cousin, a Gregorio Valenzuela,[13] had been at the
parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the
security guard Lago fire a shot. The gunshot caused him and
273
the other people at the scene to start running, at which point he
was apprehended by Lago and brought to the security office.
Petitioner claimed he was detained at the security office until
around 9:00 p.m., at which time he and the others were
brought to the Baler Police Station. At the station, petitioner
denied having stolen the cartons of detergent, but he was
detained overnight, and eventually brought to the prosecutors
office where he was charged with theft.[14] During petitioners
cross-examination, he admitted that he had been employed as a
bundler of GMS Marketing, assigned at the supermarket
though not at SM.[15]
In a Decision[16] promulgated on 1 February 2000, the
Regional Trial Court (RTC) of Quezon City, Branch 90,
convicted both petitioner and Calderon of the crime of
consummated theft. They were sentenced to an indeterminate
prison term of two (2) years of prision correccional as
minimum to seven (7) years of prision mayor as
maximum.[17] The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the
positive identification of the accused as perpetrators of the
crime.
Both accused filed their respective Notices of
Appeal,[18] but only petitioner filed a brief[19] with the Court of
Appeals, causing the appellate court to deem Calderons appeal
as abandoned and consequently dismissed. Before the Court of
Appeals, petitioner argued that he should only be convicted of
frustrated theft since at the time he was apprehended, he was
never placed in a position to freely dispose of the articles
stolen.[20] However, in its Decision dated 19 June 2003,[21] the
Court of Appeals rejected this contention and affirmed
petitioners conviction.[22] Hence the present Petition for
Review,[23] which expressly seeks that petitioners conviction
be modified to only of Frustrated Theft.[24]
Even in his appeal before the Court of Appeals, petitioner
effectively conceded both his felonious intent and his actual
participation in the theft of several cases of detergent with a
total value of P12,090.00 of which he was charged.[25] As such,
there is no cause for the Court to consider a factual scenario
other than that presented by the prosecution, as affirmed by the
RTC and the Court of Appeals. The only question to consider
is whether under the given facts, the theft should be deemed as
consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft,
petitioner cites[26] two decisions rendered many years ago by
the Court of Appeals: People v. Dio[27] and People
v. Flores.[28] Both decisions elicit the interest of this Court, as
they modified trial court convictions from consummated to
frustrated theft and involve a factual milieu that bears
similarity to the present case. Petitioner invoked the same
rulings in his appeal to the Court of Appeals, yet the appellate
court did not expressly consider the import of the rulings when
it affirmed the conviction.
It is not necessary to fault the Court of Appeals for
giving short shrift to the Dio and Flores rulings since they
274
have not yet been expressly adopted as precedents by this
Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft
has not come to pass before us. Yet despite the silence on our
part, Dio and Flores have attained a level of renown reached
by very few other appellate court rulings. They are
comprehensively discussed in the most popular of our criminal
law annotations,[29] and studied in criminal law classes as
textbook examples of frustrated crimes or even as definitive of
frustrated theft.
More critically, the factual milieu in those cases is
hardly akin to the fanciful scenarios that populate criminal law
exams more than they actually occur in real life. Indeed, if we
finally say that Dio and Flores are doctrinal, such conclusion
could profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting. Any
scenario that involves the thief having to exit with the stolen
property through a supervised egress, such as a supermarket
checkout counter or a parking area pay booth, may easily call
for the application of Dio and Flores. The fact that lower
courts have not hesitated to lay down convictions for frustrated
theft further validates that Dio and Flores and the theories
offered therein on frustrated theft have borne some weight in
our jurisprudential system. The time is thus ripe for us to
examine whether those theories are correct and should
continue to influence prosecutors and judges in the future.

III.
To delve into any extended analysis of Dio and Flores,
as well as the specific issues relative to frustrated theft, it is
necessary to first refer to the basic rules on the three stages of
crimes under our Revised Penal Code.[30]
Article 6 defines those three stages, namely the consummated,
frustrated and attempted felonies. A felony is consummated
when all the elements necessary for its execution and
accomplishment are present. It is frustrated when the offender
performs all the acts of execution which would produce the
felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the
perpetrator. Finally, it is attempted when the offender
commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other
than his own spontaneous desistance.
Each felony under the Revised Penal Code has a subjective
phase, or that portion of the acts constituting the crime
included between the act which begins the commission of the
crime and the last act performed by the offender which, with
prior acts, should result in the consummated crime.[31] After
that point has been breached, the subjective phase ends and the
objective phase begins.[32] It has been held that if the offender
never passes the subjective phase of the offense, the crime is
275
merely attempted.[33] On the other hand, the subjective phase is
completely passed in case of frustrated crimes, for in such
instances, [s]ubjectively the crime is complete.[34]
Truly, an easy distinction lies between consummated
and frustrated felonies on one hand, and attempted felonies on
the other. So long as the offender fails to complete all the acts
of execution despite commencing the commission of a felony,
the crime is undoubtedly in the attempted stage. Since the
specific acts of execution that define each crime under the
Revised Penal Code are generally enumerated in the code
itself, the task of ascertaining whether a crime is attempted
only would need to compare the acts actually performed by the
accused as against the acts that constitute the felony under the
Revised Penal Code.
In contrast, the determination of whether a crime is frustrated
or consummated necessitates an initial concession that all of
the acts of execution have been performed by the offender. The
critical distinction instead is whether the felony itself was
actually produced by the acts of execution. The determination
of whether the felony was produced after all the acts of
execution had been performed hinges on the particular
statutory definition of the felony. It is the statutory definition
that generally furnishes the elements of each crime under the
Revised Penal Code, while the elements in turn unravel the
particular requisite acts of execution and accompanying
criminal intent.
The long-standing Latin maxim actus non facit reum, nisi
mens sit rea supplies an important characteristic of a crime,
that ordinarily, evil intent must unite with an unlawful act for
there to be a crime, and accordingly, there can be no crime
when the criminal mind is wanting.[35] Accepted in this
jurisdiction as material in crimes mala in se,[36] mens rea has
been defined before as a guilty mind, a guilty or wrongful
purpose or criminal intent,[37] and essential for criminal
liability.[38] It follows that the statutory definition of our mala
in se crimes must be able to supply what the mens rea of the
crime is, and indeed the U.S. Supreme Court has comfortably
held that a criminal law that contains no mens rea requirement
infringes on constitutionally protected rights.[39] The criminal
statute must also provide for the overt acts that constitute the
crime. For a crime to exist in our legal law, it is not enough
that mens rea be shown; there must also be an actus reus.[40]
It is from the actus reus and the mens rea, as they find
expression in the criminal statute, that the felony is
produced. As a postulate in the craftsmanship of
constitutionally sound laws, it is extremely preferable that the
language of the law expressly provide when the felony is
produced. Without such provision, disputes would inevitably
ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally
dubious set-up under which the judiciary is assigned the
legislative role of defining crimes. Fortunately, our Revised
Penal Code does not suffer from such infirmity. From the
statutory definition of any felony, a decisive passage or term is
embedded which attests when the felony is produced by the
acts of execution. For example, the statutory definition of
276
murder or homicide expressly uses the phrase shall kill
another, thus making it clear that the felony is produced by the
death of the victim, and conversely, it is not produced if the
victim survives.
We next turn to the statutory definition of theft. Under Article
308 of the Revised Penal Code, its elements are spelled out as
follows:
Art. 308. Who are liable for theft. Theft is
committed by any person who, with intent to gain but
without violence against or intimidation of persons nor
force upon things, shall take personal property of another
without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property,
shall fail to deliver the same to the local
authorities or to its owner;
2. Any person who, after having maliciously
damaged the property of another, shall
remove or make use of the fruits or object
of the damage caused by him; and
3. Any person who shall enter an inclosed
estate or a field where trespass is forbidden
or which belongs to another and without
the consent of its owner, shall hunt or fish
upon the same or shall gather cereals, or
other forest or farm products.
Article 308 provides for a general definition of theft, and three
alternative and highly idiosyncratic means by which theft may
be committed.[41] In the present discussion, we need to concern
ourselves only with the general definition since it was under it
that the prosecution of the accused was undertaken and
sustained. On the face of the definition, there is only one
operative act of execution by the actor involved in theft ─ the
taking of personal property of another. It is also clear from the
provision that in order that such taking may be qualified as
theft, there must further be present the descriptive
circumstances that the taking was with intent to gain; without
force upon things or violence against or intimidation of
persons; and it was without the consent of the owner of the
property.
Indeed, we have long recognized the following elements
of theft as provided for in Article 308 of the Revised Penal
Code, namely: (1) that there be taking of personal property; (2)
that said property belongs to another; (3) that the taking be
done with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of persons
or force upon things.[42]
In his commentaries, Judge Guevarra traces the history
of the definition of theft, which under early Roman law as
defined by Gaius, was so broad enough as to encompass any
kind of physical handling of property belonging to another
against the will of the owner,[43] a definition similar to that by
Paulus that a thief handles (touches, moves) the property of
another.[44] However, with the Institutes of Justinian, the idea
had taken hold that more than mere physical handling, there
must further be an intent of acquiring gain from the object,
thus: [f]urtum est contrectatio rei fraudulosa, lucri faciendi
causa vel ipsius rei, vel etiam usus ejus possessinisve.[45] This
requirement of animo lucrandi, or intent to gain, was
277
maintained in both the Spanish and Filipino penal laws, even
as it has since been abandoned in Great Britain.[46]
In Spanish law, animo lucrandi was compounded
with apoderamiento, or unlawful taking, to characterize theft.
Justice Regalado notes that the concept of apoderamiento once
had a controversial interpretation and application. Spanish law
had already discounted the belief that mere physical taking was
constitutive of apoderamiento, finding that it had to be coupled
with the intent to appropriate the object in order to
constitute apoderamiento; and to appropriate means to deprive
the lawful owner of the thing.[47] However, a conflicting line of
cases decided by the Court of Appeals ruled, alternatively, that
there must be permanency in the taking[48] or an intent to
permanently deprive the owner of the stolen property;[49] or
that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or
disturbance of the proprietary rights of the owner already
constituted apoderamiento.[50] Ultimately, as Justice Regalado
notes, the Court adopted the latter thought that there was no
need of an intent to permanently deprive the owner of his
property to constitute an unlawful taking.[51]
So long as the descriptive circumstances that qualify the taking
are present, including animo lucrandi and apoderamiento, the
completion of the operative act that is the taking of personal
property of another establishes, at least, that the transgression
went beyond the attempted stage. As applied to the present
case, the moment petitioner obtained physical possession of
the cases of detergent and loaded them in the pushcart, such
seizure motivated by intent to gain, completed without need to
inflict violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM Super
Sales Club, petitioner forfeited the extenuating benefit a
conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or
frustrated theft, we are obliged to apply Article 6 of the
Revised Penal Code to ascertain the answer. Following that
provision, the theft would have been frustrated only, once the
acts committed by petitioner, if ordinarily sufficient to produce
theft as a consequence, do not produce [such theft] by reason
of causes independent of the will of the perpetrator. There are
clearly two determinative factors to consider: that the felony is
not produced, and that such failure is due to causes
independent of the will of the perpetrator. The second factor
ultimately depends on the evidence at hand in each particular
case. The first, however, relies primarily on a doctrinal
definition attaching to the individual felonies in the Revised
Penal Code[52] as to when a particular felony is not produced,
despite the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or
frustrated, it is necessary to inquire as to how exactly is the
felony of theft produced. Parsing through the statutory
definition of theft under Article 308, there is one apparent
answer provided in the language of the law that theft is already
278
produced upon the tak[ing of] personal property of another
without the latters consent.
U.S. v. Adiao[53] apparently supports that notion. Therein, a
customs inspector was charged with theft after he abstracted a
leather belt from the baggage of a foreign national and secreted
the item in his desk at the Custom House. At no time was the
accused able to get the merchandise out of the Custom House,
and it appears that he was under observation during the entire
transaction.[54] Based apparently on those two circumstances,
the trial court had found him guilty, instead, of frustrated theft.
The Court reversed, saying that neither circumstance was
decisive, and holding instead that the accused was guilty of
consummated theft, finding that all the elements of the
completed crime of theft are present.[55] In support of its
conclusion that the theft was consummated, the Court cited
three (3) decisions of the Supreme Court of Spain, the
discussion of which we replicate below:
The defendant was charged with the theft of some fruit
from the land of another. As he was in the act of taking the
fruit[,] he was seen by a policeman, yet it did not appear
that he was at that moment caught by the policeman but
sometime later. The court said: "[x x x] The trial court did
not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as
nothing appears in the record showing that the policemen
who saw the accused take the fruit from the adjoining land
arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization
by him for an interval of time." (Decision of the Supreme
Court of Spain, October 14, 1898.)
 Defendant picked the pocket of the offended party
while the latter was hearing mass in a church. The latter on
account of the solemnity of the act, although noticing the
theft, did not do anything to prevent it. Subsequently,
however, while the defendant was still inside the church,
the offended party got back the money from the defendant.
The court said that the defendant had performed all the
acts of execution and considered the theft as
consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)
The defendant penetrated into a room of a certain
house and by means of a key opened up a case, and from
the case took a small box, which was also opened with a
key, from which in turn he took a purse containing 461
reales and 20 centimos, and then he placed the money over
the cover of the case; just at this moment he was caught by
two guards who were stationed in another room near-by.
The court considered this as consummated robbery, and
said: "[x x x] The accused [x x x] having materially taken
possession of the money from the moment he took it from
the place where it had been, and having taken it with his
hands with intent to appropriate the same, he executed all
the acts necessary to constitute the crime which was
thereby produced; only the act of making use of the thing
having been frustrated, which, however, does not go to
make the elements of the consummated crime." (Decision
of the Supreme Court of Spain, June 13, 1882.)[56]
It is clear from the facts of Adiao itself, and the three (3)
Spanish decisions cited therein, that the criminal actors in all
these cases had been able to obtain full possession of the
personal property prior to their apprehension. The interval
between the commission of the acts of theft and the
apprehension of the thieves did vary, from sometime later in
the 1898 decision; to the very moment the thief had just
extracted the money in a purse which had been stored as it was
279
in the 1882 decision; and before the thief had been able to
spirit the item stolen from the building where the theft took
place, as had happened in Adiao and the 1897 decision. Still,
such intervals proved of no consequence in those cases, as it
was ruled that the thefts in each of those cases was
consummated by the actual possession of the property
belonging to another.
In 1929, the Court was again confronted by a claim that an
accused was guilty only of frustrated rather than consummated
theft. The case is People v. Sobrevilla,[57] where the accused,
while in the midst of a crowd in a public market, was already
able to abstract a pocketbook from the trousers of the victim
when the latter, perceiving the theft, caught hold of the
[accused]s shirt-front, at the same time shouting for a
policeman; after a struggle, he recovered his pocket-book and
let go of the defendant, who was afterwards caught by a
policeman.[58]In rejecting the contention that only frustrated
theft was established, the Court simply said, without further
comment or elaboration:
We believe that such a contention is groundless. The
[accused] succeeded in taking the pocket-book, and
that determines the crime of theft. If the pocket-book
was afterwards recovered, such recovery does not
affect the [accuseds] criminal liability, which arose
from the [accused] having succeeded in taking the
pocket-book.[59]
If anything, Sobrevilla is consistent with Adiao and the
Spanish Supreme Court cases cited in the latter, in that the fact
that the offender was able to succeed in obtaining physical
possession of the stolen item, no matter how momentary, was
able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court
decisions cited therein contradict the position of petitioner in
this case. Yet to simply affirm without further comment would
be disingenuous, as there is another school of thought on when
theft is consummated, as reflected in
the Dio and Flores decisions.
Dio was decided by the Court of Appeals in 1949, some
31 years after Adiao and 15 years before Flores. The accused
therein, a driver employed by the United States Army, had
driven his truck into the port area of the South Harbor, to
unload a truckload of materials to waiting U.S. Army
personnel. After he had finished unloading, accused drove
away his truck from the Port, but as he was approaching a
checkpoint of the Military Police, he was stopped by an M.P.
who inspected the truck and found therein three boxes of army
rifles. The accused later contended that he had been stopped by
four men who had loaded the boxes with the agreement that
they were to meet him and retrieve the rifles after he had
passed the checkpoint. The trial court convicted accused of
consummated theft, but the Court of Appeals modified the
conviction, holding instead that only frustrated theft had been
committed.
In doing so, the appellate court pointed out that the
evident intent of the accused was to let the boxes of rifles pass
through the checkpoint, perhaps in the belief that as the truck
had already unloaded its cargo inside the depot, it would be
280
allowed to pass through the check point without further
investigation or checking.[60] This point was deemed material
and indicative that the theft had not been fully produced, for
the Court of Appeals pronounced that the fact determinative of
consummation is the ability of the thief to dispose freely of the
articles stolen, even if it were more or less
momentary.[61] Support for this proposition was drawn from a
decision of the Supreme Court of Spain dated 24 January
1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la
cosa sustraida sea determinate de la consumacion del delito
de hurto es preciso que so haga en circunstancias tales que
permitan al sustractor la libre disposicion de aquella,
siquiera sea mas o menos momentaneamente, pues de otra
suerte, dado el concepto del delito de hurto, no puede decirse
en realidad que se haya producido en toda su extension, sin
materializar demasiado el acto de tomar la cosa ajena.[62]
Integrating these considerations, the Court of Appeals
then concluded:
This court is of the opinion that in the case at bar,
in order to make the booty subject to the control and
disposal of the culprits, the articles stolen must first be
passed through the M.P. check point, but since the offense
was opportunely discovered and the articles seized after all
the acts of execution had been performed, but before the
loot came under the final control and disposal of the
looters, the offense can not be said to have been fully
consummated, as it was frustrated by the timely
 intervention of the guard. The offense committed,
therefore, is that of frustrated theft.[63]
Dio thus laid down the theory that the ability of the actor
to freely dispose of the items stolen at the time of apprehension
is determinative as to whether the theft is consummated or
frustrated. This theory was applied again by the Court of
Appeals some 15 years later, in Flores, a case which according
to the division of the court that decided it, bore no substantial
variance between the circumstances [herein] and in
[Dio].[64] Such conclusion is borne out by the facts in Flores.
The accused therein, a checker employed by the Luzon
Stevedoring Company, issued a delivery receipt for one empty
sea van to the truck driver who had loaded the purportedly
empty sea van onto his truck at the terminal of the stevedoring
company. The truck driver proceeded to show the delivery
receipt to the guard on duty at the gate of the terminal.
However, the guards insisted on inspecting the van, and
discovered that the empty sea van had actually contained other
merchandise as well.[65] The accused was prosecuted for theft
qualified by abuse of confidence, and found himself convicted
of the consummated crime. Before the Court of Appeals,
accused argued in the alternative that he was guilty only of
attempted theft, but the appellate court pointed out that there
was no intervening act of spontaneous desistance on the part of
the accused that literally frustrated the theft. However, the
Court of Appeals, explicitly relying on Dio, did find that the
accused was guilty only of frustrated, and not consummated,
theft.
281
As noted earlier, the appellate court admitted it found no
substantial variance between Dio and Flores then before it.
The prosecution in Flores had sought to distinguish that case
from Dio, citing a traditional ruling which unfortunately was
not identified in the decision itself. However, the Court of
Appeals pointed out that the said traditional ruling was
qualified by the words is placed in a situation where [the actor]
could dispose of its contents at once.[66] Pouncing on this
qualification, the appellate court noted that [o]bviously, while
the truck and the van were still within the compound, the
petitioner could not have disposed of the goods at once. At the
same time, the Court of Appeals conceded that [t]his is entirely
different from the case where a much less bulk and more
common thing as money was the object of the crime, where
freedom to dispose of or make use of it is palpably less
restricted,[67] though no further qualification was offered what
the effect would have been had that alternative circumstance
been present instead.
Synthesis of the Dio and Flores rulings is in order. The
determinative characteristic as to whether the crime of theft
was produced is the ability of the actor to freely dispose of the
articles stolen, even if it were only momentary. Such
conclusion was drawn from an 1888 decision of the Supreme
Court of Spain which had pronounced that in determining
whether theft had been consummated, es preciso que so haga
en circunstancias tales que permitan al sustractor de aquella,
siquiera sea mas o menos momentaneamente. The qualifier
siquiera sea mas o menos momentaneamente proves another
important consideration, as it implies that if the actor was in a
capacity to freely dispose of the stolen items before
apprehension, then the theft could be deemed consummated.
Such circumstance was not present in either Dio or Flores, as
the stolen items in both cases were retrieved from the actor
before they could be physically extracted from the guarded
compounds from which the items were filched. However, as
implied in Flores, the character of the item stolen could lead to
a different conclusion as to whether there could have been free
disposition, as in the case where the chattel involved was
of much less bulk and more common x x x, [such] as money x
x x.[68]
In his commentaries, Chief Justice Aquino makes the
following pointed observation on the import of the Dio ruling:
There is a ruling of the Court of Appeals that theft
is consummated when the thief is able to freely dispose of
the stolen articles even if it were more or less momentary.
Or as stated in another case[[69]], theft is consummated
upon the voluntary and malicious taking of property
belonging to another which is realized by the material
occupation of the thing whereby the thief places it under
his control and in such a situation that he could dispose of
it at once. This ruling seems to have been based on Viadas
opinion that in order the theft may be consummated, es
preciso que se haga en circumstancias x x x [[70]][71]
282
In the same commentaries, Chief Justice Aquino,
concluding from Adiao and other cases, also states that [i]n
theft or robbery the crime is consummated after the accused
had material possession of the thing with intent to appropriate
the same, although his act of making use of the thing was
frustrated.[72]
There are at least two other Court of Appeals rulings
that are at seeming variance with
the Dio and Flores rulings. People v. Batoon[73] involved an
accused who filled a container with gasoline from a petrol
pump within view of a police detective, who followed the
accused onto a passenger truck where the arrest was made.
While the trial court found the accused guilty of frustrated
qualified theft, the Court of Appeals held that the accused was
guilty of consummated qualified theft, finding that [t]he facts
of the cases of U.S. [v.] Adiao x x x andU.S. v. Sobrevilla x x x
indicate that actual taking with intent to gain is enough to
consummate the crime of theft.[74]
In People v. Espiritu,[75] the accused had removed nine
pieces of hospital linen from a supply depot and loaded them
onto a truck. However, as the truck passed through the
checkpoint, the stolen items were discovered by the Military
Police running the checkpoint. Even though those facts clearly
admit to similarity with those in Dio, the Court of Appeals
held that the accused were guilty of consummated theft, as the
accused were able to take or get hold of the hospital linen and
that the only thing that was frustrated, which does not
constitute any element of theft, is the use or benefit that the
thieves expected from the commission of the offense.[76]

In pointing out the distinction between Dio and Espiritu,
Reyes wryly observes that [w]hen the meaning of an element
of a felony is controversial, there is bound to arise different
rulings as to the stage of execution of that felony.[77] Indeed,
we can discern from this survey of jurisprudence that the state
of the law insofar as frustrated theft is concerned is muddled. It
fact, given the disputed foundational basis of the concept of
frustrated theft itself, the question can even be asked whether
there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an
accused was guilty of frustrated, and not consummated, theft.
As we undertake this inquiry, we have to reckon with the
import of this Courts 1984 decision in Empelis v. IAC.[78]
As narrated in Empelis, the owner of a coconut
plantation had espied four (4) persons in the premises of his
plantation, in the act of gathering and tying some coconuts.
The accused were surprised by the owner within the plantation
as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts
they had seized, and were subsequently arrested after the
owner reported the incident to the police. After trial, the
accused were convicted of qualified theft, and the issue they
raised on appeal was that they were guilty only of simple theft.
The Court affirmed that the theft was qualified, following
283
Article 310 of the Revised Penal Code,[79] but further held that
the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the
issue of whether the theft was consummated or frustrated was
raised by any of the parties. What does appear, though, is that
the disposition of that issue was contained in only two
sentences, which we reproduce in full:
However, the crime committed is only frustrated
qualified theft because petitioners were not able to
perform all the acts of execution which should have
produced the felony as a consequence. They were not able
to carry the coconuts away from the plantation due to the
timely arrival of the owner.[80]
No legal reference or citation was offered for this averment,
whether Dio, Flores or the Spanish authorities who may have
bolstered the conclusion. There are indeed evident problems
with this formulation in Empelis.
Empelis held that the crime was only frustrated because the
actors were not able to perform all the acts of
execution which should have produced the felon as a
consequence.[81]However, per Article 6 of the Revised Penal
Code, the crime is frustrated when the offender performs all
the acts of execution, though not producing the felony as a
result. If the offender was not able to perform all the acts of
execution, the crime is attempted, provided that the non-
performance was by reason of some cause or accident other tha
n spontaneous
desistance. Empelis concludes that the crime was

frustrated because not all of the acts of execution were
performed due to the timely arrival of the owner. However,
following Article 6 of the Revised Penal Code, these facts
should elicit the conclusion that the crime was only attempted,
especially given that the acts were not performed because of
the timely arrival of the owner, and not because of spontaneous
desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we
consider the present petition. Even if the two sentences we had
cited actually aligned with the definitions provided in Article 6
of the Revised Penal Code, such passage bears no reflection
that it is the product of the considered evaluation of the
relevant legal or jurisprudential thought. Instead, the passage is
offered as if it were sourced from an indubitable legal premise
so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court,
or even cited as authority on theft. Indeed, we cannot see
how Empelis can contribute to our present debate, except for
the bare fact that it proves that the Court had once deliberately
found an accused guilty of frustrated theft. Even
if Empelis were considered as a precedent for frustrated theft,
its doctrinal value is extremely compromised by the erroneous
legal premises that inform it, and also by the fact that it has not
been entrenched by subsequent reliance.
284
Thus, Empelis does not compel us that it is an insurmountable
given that frustrated theft is viable in this jurisdiction.
Considering the flawed reasoning behind its conclusion of
frustrated theft, it cannot present any efficacious argument to
persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this
jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the
1870 Codigo Penal de Espaa was then in place. The definition
of the crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o
intimidacin en las personas ni fuerza en las cosas,
toman las cosas muebles ajenas sin la voluntad de su
dueo.
2. Los que encontrndose una cosa perdida y sabiendo
quin es su dueo se la apropriaren co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u
objeto del dao causado, salvo los casos previstos en
los artίculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0;
608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the
aforecited Spanish Supreme Court decisions were handed
down. However, the said code would be revised again in 1932,
and several times thereafter. In fact, under the Codigo Penal
Espaol de 1995, the crime of theft is now simply defined
as [e]l que, con nimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser
castigado[82]
Notice that in the 1870 and 1995 definition of theft in
the penal code of Spain, la libre disposicion of the property is
not an element or a statutory characteristic of the crime. It does
appear that the principle originated and perhaps was fostered in
the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer
form in his 1926 commentaries on the 1870 Codigo Penal de
Espaa. Therein, he raised at least three questions for the reader
whether the crime of frustrated or consummated theft had
occurred. The passage cited in Dio was actually utilized by
Viada to answer the question whether frustrated or
consummated theft was committed [e]l que en el momento
mismo de apoderarse de la cosa ajena, vindose sorprendido, la
arroja al suelo.[83] Even as the answer was as stated in Dio,
and was indeed derived from the 1888 decision of the Supreme
Court of Spain, that decisions factual predicate occasioning the
statement was apparently very different from Dio, for it
appears that the 1888 decision involved an accused who was
surprised by the employees of a haberdashery as he was
abstracting a layer of clothing off a mannequin, and who then
proceeded to throw away the garment as he fled.[84]
285
Nonetheless, Viada does not contest the notion of
frustrated theft, and willingly recites decisions of the Supreme
Court of Spain that have held to that effect.[85] A few decades
later, the esteemed Eugenio Cuello Caln pointed out the
inconsistent application by the Spanish Supreme Court with
respect to frustrated theft.
Hay frustracin cuando los reos fueron
sorprendidos por las guardias cuando llevaban los sacos
de harino del carro que los conducia a otro que tenan
preparado, 22 febrero 1913; cuando el resultado no tuvo
efecto por la intervencin de la policia situada en el local
donde se realiz la sustraccin que impidi pudieran los reos
disponer de lo sustrado, 30 de octubre 1950. Hay "por lo
menos" frustracin, si existe apoderamiento, pero el
culpale no llega a disponer de la cosa, 12 abril 1930; hay
frustracin "muy prxima" cuando el culpable es detenido
por el perjudicado acto seguido de cometer la sustraccin,
28 febrero 1931. Algunos fallos han considerado la
existencia de frustracin cuando, perseguido el culpable o
sorprendido en el momento de llevar los efectos hurtados,
los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo
1921; esta doctrina no es admissible, stos, conforme a lo
antes expuesto, son hurtos consumados.[86]
Ultimately, Cuello Caln attacked the very idea that
frustrated theft is actually possible:
La doctrina hoy generalmente sustentada
considera que el hurto se consuma cuando la cosa queda
de hecho a la disposicin del agente. Con este criterio
coincide la doctrina sentada ltimamente porla
jurisprudencia espaola que generalmente considera
consumado el hurto cuando el culpable coge o aprehende
la cosa y sta quede por tiempo ms o menos duradero bajo
su poder. El hecho de que ste pueda aprovecharse o no de
lo hurtado es indiferente. El delito no pierde su carcter de
consumado aunque la cosa hurtada sea devuelta por el
 culpable o fuere recuperada. No se concibe la frustracin,
pues es muy dificil que el que hace cuanto es necesario
para la consumacin del hurto no lo consume
efectivamente, los raros casos que nuestra
jurisprudencia, muy vacilante, declara hurtos frustrados
son verdaderos delitos consumados.[87] (Emphasis
supplied)
Cuello Calns submissions cannot be lightly ignored.
Unlike Viada, who was content with replicating the Spanish
Supreme Court decisions on the matter, Cuello Caln actually
set forth his own thought that questioned whether theft could
truly be frustrated, since pues es muy dificil que el que hace
cuanto es necesario para la consumacin del hurto no lo
consume efectivamente. Otherwise put, it would be difficult to
foresee how the execution of all the acts necessary for the
completion of the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that
there is no weighted force in scholarly thought that obliges us
to accept frustrated theft, as proposed in Dio and Flores. A
final ruling by the Court that there is no crime of frustrated
theft in this jurisdiction will not lead to scholastic pariah, for
such a submission is hardly heretical in light of Cuello Calns
position.
Accordingly, it would not be intellectually disingenuous
for the Court to look at the question from a fresh perspective,
as we are not bound by the opinions of the respected Spanish
commentators, conflicting as they are, to accept that theft is
capable of commission in its frustrated stage. Further, if we
ask the question whether there is a mandate of statute or
286
precedent that must compel us to adopt
the Dio and Flores doctrines, the answer has to be in the
negative. If we did so, it would arise not out of obeisance to an
inexorably higher command, but from the exercise of the
function of statutory interpretation that comes as part and
parcel of judicial review, and a function that allows breathing
room for a variety of theorems in competition until one is
ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the
matter is that it lies in the province of the legislature, through
statute, to define what constitutes a particular crime in this
jurisdiction. It is the legislature, as representatives of the
sovereign people, which determines which acts or combination
of acts are criminal in nature. Judicial interpretation of penal
laws should be aligned with what was the evident legislative
intent, as expressed primarily in the language of the law as it
defines the crime. It is Congress, not the courts, which is to
define a crime, and ordain its punishment.[88] The courts cannot
arrogate the power to introduce a new element of a crime
which was unintended by the legislature, or redefine a crime in
a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining
crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a narrow interpretation is
appropriate. The Court must take heed of language, legislative
history and purpose, in order to strictly determine the wrath
and breath of the conduct the law forbids.[89]
 With that in mind, a problem clearly emerges with
the Dio/Flores dictum. The ability of the offender to freely
dispose of the property stolen is not a constitutive element of
the crime of theft. It finds no support or extension in Article
308, whether as a descriptive or operative element of theft or
as the mens rea or actus reus of the felony. To restate what this
Court has repeatedly held: the elements of the crime of theft as
provided for in Article 308 of the Revised Penal Code are: (1)
that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to
gain; (4) that the taking be done without the consent of the
owner; and (5) that the taking be accomplished without the use
of violence against or intimidation of persons or force upon
things.[90]
Such factor runs immaterial to the statutory definition of
theft, which is the taking, with intent to gain, of personal
property of another without the latters consent. While
the Dio/Flores dictum is considerate to the mindset of the
offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender,
compounded by the deprivation of property on the part of the
victim.
For the purpose of ascertaining whether theft is
susceptible of commission in the frustrated stage, the question
is again, when is the crime of theft produced? There would be
all but certain unanimity in the position that theft is produced
when there is deprivation of personal property due to its taking
by one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender, once
287
having committed all the acts of execution for theft, is able or
unable to freely dispose of the property stolen since the
deprivation from the owner alone has already ensued from
such acts of execution. This conclusion is reflected in Chief
Justice Aquinos commentaries, as earlier cited, that [i]n theft
or robbery the crime is consummated after the accused had
material possession of the thing with intent to appropriate the
same, although his act of making use of the thing was
frustrated.[91]
It might be argued, that the ability of the offender to
freely dispose of the property stolen delves into the concept of
taking itself, in that there could be no true taking until the actor
obtains such degree of control over the stolen item. But even if
this were correct, the effect would be to downgrade the crime
to its attempted, and not frustrated stage, for it would mean
that not all the acts of execution have not been completed, the
taking not having been accomplished. Perhaps this point could
serve as fertile ground for future discussion, but our concern
now is whether there is indeed a crime of frustrated theft, and
such consideration proves ultimately immaterial to that
question. Moreover, such issue will not apply to the facts of
this particular case. We are satisfied beyond reasonable doubt
that the taking by the petitioner was completed in this case.
With intent to gain, he acquired physical possession of the
stolen cases of detergent for a considerable period of time that
he was able to drop these off at a spot in the parking lot, and
long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking,
or apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no
opportunity to dispose of the same.[92] And long ago, we
asserted in People v. Avila:[93]
x x x [T]he most fundamental notion in the crime of theft
is the taking of the thing to be appropriated into the
physical power of the thief, which idea is qualified by
other conditions, such as that the taking must be
effected animo lucrandi and without the consent of the
owner; and it will be here noted that the definition does
not require that the taking should be effected against the
will of the owner but merely that it should be without his
consent, a distinction of no slight importance.[94]
Insofar as we consider the present question, unlawful
taking is most material in this respect. Unlawful taking, which
is the deprivation of ones personal property, is the element
which produces the felony in its consummated stage. At the
same time, without unlawful taking as an act of execution, the
offense could only be attempted theft, if at all.
With these considerations, we can only conclude that
under Article 308 of the Revised Penal Code, theft cannot have
a frustrated stage. Theft can only be attempted or
consummated.
Neither Dio nor Flores can convince us otherwise. Both
fail to consider that once the offenders therein obtained
possession over the stolen items, the effect of the felony has
been produced as there has been deprivation of property. The
presumed inability of the offenders to freely dispose of the
stolen property does not negate the fact that the owners have
288
already been deprived of their right to possession upon the
completion of the taking.
Moreover, as is evident in this case, the adoption of the
rule that the inability of the offender to freely dispose of the
stolen property frustrates the theft would introduce a
convenient defense for the accused which does not reflect any
legislated intent,[95] since the Court would have carved a viable
means for offenders to seek a mitigated penalty under applied
circumstances that do not admit of easy classification. It is
difficult to formulate definite standards as to when a stolen
item is susceptible to free disposal by the thief. Would this
depend on the psychological belief of the offender at the time
of the commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several classes of
factual circumstances such as the size and weight of the
property, the location of the property, the number and identity
of people present at the scene of the crime, the number and
identity of people whom the offender is expected to encounter
upon fleeing with the stolen property, the manner in which the
stolen item had been housed or stored; and quite frankly, a
whole lot more. Even the fungibility or edibility of the stolen
item would come into account, relevant as that would be on
whether such property is capable of free disposal at any stage,
even after the taking has been consummated.
 All these complications will make us lose sight of the
fact that beneath all the colorful detail, the owner was indeed
deprived of property by one who intended to produce such
deprivation for reasons of gain. For such will remain the
presumed fact if frustrated theft were recognized, for therein,
all of the acts of execution, including the taking, have been
completed. If the facts establish the non-completion of the
taking due to these peculiar circumstances, the effect could be
to downgrade the crime to the attempted stage, as not all of the
acts of execution have been performed. But once all these acts
have been executed, the taking has been completed, causing
the unlawful deprivation of property, and ultimately the
consummation of the theft.
Maybe the Dio/Flores rulings are, in some degree,
grounded in common sense. Yet they do not align with the
legislated framework of the crime of theft. The Revised Penal
Code provisions on theft have not been designed in such
fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that
the free disposition of the items stolen is in any way
determinative of whether the crime of theft has been
produced. Dio itself did not rely on Philippine laws or
jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Dio alone for legal
support. These cases do not enjoy the weight of stare decisis,
and even if they did, their erroneous appreciation of our law on
theft leave them susceptible to reversal. The same holds true
of Empilis, a regrettably stray decision which has not since
found favor from this Court.
289
We thus conclude that under the Revised Penal Code,
there is no crime of frustrated theft. As petitioner has latched
the success of his appeal on our acceptance of
the Dio and Flores rulings, his petition must be denied, for we
decline to adopt said rulings in our jurisdiction. That it has
taken all these years for us to recognize that there can be no
frustrated theft under the Revised Penal Code does not detract
from the correctness of this conclusion. It will take
considerable amendments to our Revised Penal Code in order
that frustrated theft may be recognized. Our deference to Viada
yields to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against
petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it
is hereby certified that the conclusions in the above
Decision had been reached in consultation before the case
At early dawn on March 2, 1935, policeman Jose Tomambing, who was
patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo,
caught the accused in the act of making an opening with an iron bar on the
wall of a store of cheap goods located on the last named street. At that time
the owner of the store, Tan Yu, was sleeping inside with another Chinaman.
The accused had only succeeded in breaking one board and in unfastening
another from the wall, when the policeman showed up, who instantly
arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the
provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as
constituting attempted robbery, which we think is erroneous.

was assigned to the writer of the opinion of the Court. It is our opinion that the attempt to commit an offense which the Penal Code
punishes is that which has a logical relation 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. The
REYNATO S. PUNO attempt to commit an indeterminate offense, inasmuch as its nature in
relation to its objective is ambiguous, is not a juridical fact from the
Chief Justice standpoint of the Penal Code. There is no doubt that in the case at bar it
was the intention of the accused to enter Tan Yu's store by means of
Republic of the Philippines violence, passing through the opening which he had started to make on the
SUPREME COURT wall, in order to commit an offense which, due to the timely arrival of
Manila policeman Tomambing, did not develop beyond the first steps of its
execution. But it is not sufficient, for the purpose of imposing penal sanction,
EN BANC that an act objectively performed constitute a mere beginning of execution; it
is necessary to establish its unavoidable connection, like the logical and
G.R. No. L-43530 August 3, 1935 natural relation of the cause and its effect, with the deed which, upon its
consummation, will develop into one of the offenses defined and punished
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, by the Code; it is necessary to prove that said beginning of execution, if
vs. carried to its complete termination following its natural course, without being
AURELIO LAMAHANG, defendant-appellant. frustrated by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense.
Honesto K. Bausa for appellant. Thus, in case of robbery, in order that the simple act of entering by means of
Office of the Solicitor-General Hilado for appellee. force or violence another person's dwelling may be considered an attempt to
commit this offense, it must be shown that the offender clearly intended to
take possession, for the purpose of gain, of some personal property
RECTO, J.: belonging to another. In the instant case, there is nothing in the record from
which such purpose of the accused may reasonably be inferred. From the
The defendant Aurelio Lamahang is before this court on appeal from a fact established and stated in the decision, that the accused on the day in
decision of the Court of First Instance of Iloilo, finding him guilty of question was making an opening by means of an iron bar on the wall of Tan
attempted robbery and sentencing him to suffer two years and four months Yu's store, it may only be inferred as a logical conclusion that his evident
of prision correccional and to an additional penalty of ten years and one day intention was to enter by means of force said store against the will of its
of prision mayor for being an habitual delinquent, with the accessory owner. That his final objective, once he succeeded in entering the store,
penalties of the law, and to pay the costs of the proceeding. was to rob, to cause physical injury to the inmates, or to commit any other
offense, there is nothing in the record to justify a concrete finding.
1avv phil.ñet

290
 It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage is wanting, the nature of the
action intended (accion fin) cannot exactly be ascertained, but the
same must be inferred from the nature of the acts executed (accion
medio). Hence, the necessity that these acts be such that by their
very nature, by the facts to which they are related, by the
circumstances of the persons performing the same, and by the
things connected therewith, they must show without any doubt, that
they are aimed at the consummation of a crime. Acts susceptible of
double interpretation , that is, in favor as well as against the culprit,
and which show an innocent as well as a punishable act, must not
and can not furnish grounds by themselves for attempted nor
frustrated crimes. The relation existing between the facts submitted
for appreciation and the offense which said facts are supposed to
produce must be direct; the intention must be ascertained from the
facts and therefore it is necessary, in order to avoid regrettable
instances of injustice, that the mind be able to directly infer from
them the intention of the perpetrator to cause a particular injury. This
must have been the intention of the legislator in requiring that in
order for an attempt to exist, the offender must commence the
commission of the felony directly by overt acts, that is to say, that
the acts performed must be such that, without the intent to commit
an offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt
acts leading to the commission of the offense, are not punished except
when they are aimed directly to its execution, and therefore they must have
an immediate and necessary relation to the offense."
Considering — says the Supreme Court of Spain in its decision of
March 21, 1892 — that in order to declare that such and such overt
acts constitute an attempted offense it is necessary that their
objective be known and established, or that said acts be of such
nature that they themselves should obviously disclose the criminal
objective necessarily intended, said objective and finality to serve as
ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact
under consideration does not constitute attempted robbery but attempted
trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and
decisions of the Supreme Court of Spain therein cited). Under article 280 of
the Revised Penal Code, this offense is committed when a private person
shall enter the dwelling of another against the latter's will. The accused may
be convicted and sentenced for an attempt to commit this offense in
accordance with the evidence and the following allegation contained in the
information: "... the accused armed with an iron bar forced the wall of said
291
store by breaking a board and unfastening another for the purpose of
entering said store ... and that the accused did not succeed in entering the
store due to the presence of the policeman on beat Jose Tomambing, who
upon hearing the noise produced by the breaking of the wall, promptly
approached the accused ... ." Under the circumstances of this case the
prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93;
U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina,
21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil.,
292.) Against the accused must be taken into consideration the aggravating
circumstances of nighttime and former convictions, — inasmuch as the
record shows that several final judgments for robbery and theft have been
rendered against him — and in his favor, the mitigating circumstance of lack
of instruction. The breaking of the wall should not be taken into
consideration as an aggravating circumstance inasmuch as this is the very
fact which in this case constitutes the offense of attempted trespass to
dwelling.
The penalty provided by the Revised Penal Code for the consummated
offense of trespass to dwelling, if committed with force, is prision
correccional in its medium and maximum periods and a fine not exceeding
P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted
trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its
minimum and medium periods. Because of the presence of two aggravating
circumstances and one mitigating circumstance the penalty must be
imposed in its maximum period. Pursuant to article 29 of the same Code,
the accused is not entitled to credit for one-half of his preventive
imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is
hereby held guilty of attempted trespass to dwelling, committed by means of
force, with the aforesaid aggravating and mitigating circumstances and
sentenced to three months and one day of arresto mayor, with the
accessory penalties thereof and to pay the costs.
Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 86163 April 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO
CANASARES, and SIMPLICIO CANASARES, BIENVENIDO
SALVILLA, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Resurreccion S. Salvilla for defendant-appellant.
MELENCIO-HERRERA, J.:
Accused Bienvenido Salvilla alone appeals from the Decision of the
Regional Trial Court, Branch 28, Iloilo City, *dated 29 August 1988, in
Criminal Case No. 20092, finding him and his co-accused Reynaldo,
Ronaldo and Simplicio, all surnamed Canasares, guilty beyond reasonable
doubt of the crime of "Robbery with Serious Physical Injuries and Serious
Illegal Detention" and sentencing them to suffer the penalty of reclusion
perpetua.
The Information filed against them reads:
The undersigned City Fiscal accuses BIENVENIDO SALVILLA,
REYNALDO CANASARES, RONALDO CANASARES, and
SIMPLICIO CANASARES, whose maternal surnames, dated and
places of birth cannot be ascertained of the crime of ROBBERY
WITH SERIOUS PHYSICAL INJURIES AND SERIOUS ILLEGAL
DETENTION (Art, 294, paragraph 3, in conjunction with Article 267
of the Revised Penal Code), committed as follows:
That on or about the 12th day of April, 1986, in the City of Iloilo,
Philippines and within the jurisdiction of this Court, said accused,
conspiring and confederating among themselves, working together
and helping one another, armed with guns and handgrenade and
with the use of violence or intimidation employed on the person of
Severino Choco, Mary Choco, Mimie Choco and Rodita Hablero did
then and there wilfully, unlawfully and criminally take and carry
away, with intent of gain, cash in the amount of P20,000.00, two (2)
Men's wrist watches, one (1) Lady's Seiko quartz wrist watch and
one (1) Lady's Citizen wrist watch and assorted jewelries, all valued
at P50,000.00; that on the occasion and by reason of said robbery,
Mary Choco suffered serious physical injuries under paragraph 2 of
Article 263, Bienvenido Salvilla likewise suffered serious physical
292
injuries and Reynaldo Canasares also suffered physical injuries; that
the said accused also illegally detained, at the compound of the New
Iloilo Lumber Company, Iznart Street, Iloilo City, Severino Choco,
owner/proprietor of said Lumber Company, Mary Choco, Mimie
Choco, who is a minor, being 15 years of age, and Rodita Hablero,
who is a salesgirl at said Company; that likewise on the occasion of
the robbery, the accused also asked and were given a ransom
money of P50,000.00; that the said crime was attended by
aggravating circumstances of band, and illegal possession of
firearms and explosives; that the amount of P20,000.00, the ransom
money of P50,000.00, two (2) Men's wrist watches, two (2) lady's
wrist watches, one (1) .38 caliber revolver and one (1) live grenade
were recovered from the accused; to the damage and prejudice of
the New Iloilo Lumber Company in the amount of P120,000.00.
The evidence for the prosecution may be re-stated as follows:
On 12 April 1986, a robbery was staged by the four accused at the New
Iloilo Lumber Yard at about noon time. The plan was hatched about two
days before. The accused were armed with homemade guns and a hand
grenade. When they entered the establishment, they met Rodita Hablero an
employee thereat who was on her way out for her meal break and
announced to her that it was a hold-up. She was made to go back to the
office and there Appellant Salvilla pointed his gun at the owner, Severino
Choco, and his two daughters, Mary and Mimie the latter being a minor 15
years of age, and told the former that all they needed was money. Hearing
this, Severino told his daughter, Mary, to get a paper bag wherein he placed
P20,000.00 cash (P5,000.00, according to the defense) and handed it to
Appellant. Thereafter, Severino pleaded with the four accused to leave the
premises as they already had the money but they paid no heed. Instead,
accused Simplicio Canasares took the wallet and wristwatch of Severino
after which the latter, his two daughters, and Rodita, were herded to the
office and kept there as hostages.
At about 2:00 o'clock of the same day, the hostages were allowed to eat.
The four accused also took turns eating while the others stood guard. Then,
Appellant told Severino to produce P100,000.00 so he and the other
hostages could be released. Severino answered that he could not do so
because it was a Saturday and the banks were closed.
In the meantime, police and military authorities had surrounded the
premises of the lumber yard. Major Melquiades B. Sequio Station
Commander of the INP of Iloilo City, negotiated with the accused using a
loud speaker and appealed to them to surrender with the assurance that no
harm would befall them as he would accompany them personally to the
police station. The accused refused to surrender or to release the hostages.
Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the
negotiations. In her dialogue with the accused, which lasted for about four
hours, Appellant demanded P100,000.00, a coaster, and some raincoats.
She offered them P50,000.00 instead, explaining the difficulty of raising
more as it was a Saturday. Later, the accused agreed to receive the same
and to release Rodita to be accompanied by Mary Choco in going out of the
office. When they were out of the door, one of the accused whose face was
covered by a handkerchief, gave a key to Mayor Caram. With this, Mayor
Caram unlocked the padlocked door and handed to Rodita the P50,000.00,
which the latter, in turn, gave to one of the accused. Rodita was later set
free but Mary was herded back to the office.
Mayor Caram, Major Sequio and even volunteer radio newscasters
continued to appeal to the accused to surrender peacefully but they
refused. UItimatums were given but the accused did not budge. Finally, the
1âwphi1
1. The lower court erred in holding that the crime charged was
consummated and in not holding that the same was merely
attempted.
2. The lower court erred in not appreciating the mitigating
circumstance of voluntary surrender."
Upon the facts and the evidence, we affirm.
The defense contends that "The complete crime of larceny (theft/robbery) as
distinguished from an attempt requires asportation or carrying away, in
addition to the taking, In other words, the crime of robbery/theft has three
consecutive stages: 1) the giving 2) the taking and 3) the carrying away or
asportation And without asportation the crime committed is only attempted"

(Memorandum for Appellant Salvilla, Records, p. 317).

police and military authorities decided to launch an offensive and assault the
place. This resulted in injuries to the girls, Mimie and Mary Choco as well as
There is no question that in robbery, it is required that there be a taking of
to the accused Ronaldo and Reynaldo Canasares. Mary suffered a
personal property belonging to another. This is known as the element of
"macerated right lower extremity just below the knee" so that her right leg
asportation the essence of which is the taking of a thing out of the
had to be amputated. The medical certificate described her condition as "in
possession of the owner without his privity and consent and without
a state of hemorrhagic shock when she was brought in to the hospital and
the animus revertendi (Aquino, Revised Penal Code, p. 97, citing5 C.J.
had to undergo several major operations during the course of her
607). In fact, if there is no actual taking, there can be no robbery. Unlawful
confinement from April 13, 1986 to May 30, 1986."
taking of personal property of another is an essential part of the crime of
robbery.
For his part, Appellant Salvilla confirmed that at about noon time of 12 April
1986 he and his co-accused entered the lumber yard and demanded money
Appellant insists that while the "giving" has been proven, the "taking" has
from the owner Severino Choco He demanded P100,000.00 but was given
not. And this is because neither he nor his three co-accused touched the
only P5,000.00, which he placed on the counter of the office of the lumber
P5,000.00 given by Severino nor the latter's wallet or watch during the entire
yard. He admitted that he and his co-accused kept Severino, his daughters,
incident; proof of which is that none of those items were recovered from
and Rodita inside the office. He maintained, however, that he stopped his
their persons.
co-accused from getting the wallet and wristwatch of Severino and, like the
P5,000.00 were all left on the counter, and were never touched by them. He
claimed further that they had never fired on the military because they Those factual allegations are contradicted by the evidence. Rodita, the
intended to surrender. Appellant's version also was that during the gunfire, lumberyard employee, testified that upon demand by Appellant, Severino
Severino's daughter stood up and went outside; he wanted to stop her but put P20,000.00 inside a paper bag and subsequently handed it to Appellant.
he himself was hit by a bullet and could not prevent her. Appellant also In turn, accused Simplicio Canasares took the wallet and wristwatch of
admitted the appeals directed to them to surrender but that they gave Severino. In respect of the P50,000.00 from Mayor Caram, Rodita declared
themselves up only much later. that the Mayor handed the amount to her after she (the Mayor) had opened
the padlocked door and that she thereafter gave the amount to one of the
holduppers. The "taking" was, therefore, sufficiently proved (TSN, July 1,
After trial, the Court a quo meted out a judgment of conviction and
1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet and
sentenced each of the accused "to suffer the penalty of reclusion perpetua,
wristwatch were within the dominion and control of the Appellant and his co-
with the accessory penalties provided by law and to pay the costs."
accused and completed the taking.
Appellant Salvilla's present appeal is predicated on the following
The State established a "taking" sufficient to support a conviction of
Assignments of Error:
robbery even though the perpetrators were interrupted by police and

293
 so did not pick up the money offered by the victim, where the
defendant and an accomplice, armed with a knife and a club
respectively, had demanded the money from the female clerk of a
convenience store, and the clerk had complied with their instructions
and placed money from the register in a paper bag and then placed
the bag on the counter in front of the two men; these actions brought
the money within the dominion and control of defendant and
completed the taking. (Johnson vs. State, 432 So 2d 758).
"Severance of the goods from the possession of the owner and
absolute control of the property by the taker,even for an
instant, constitutes asportation (Adams vs. Commonwealth, 154 SW
381; State vs. Murray, 280 SW 2d 809; Mason vs. Commonwealth,
105 SE 2d 149) [Emphasis supplied].
It is no defense either that Appellant and his co-accused had no opportunity
to dispose of the personalities taken. That fact does not affect the nature of
the crime, From the moment the offender gained possession of the thing,
even if the culprit had no opportunity to dispose of the same, the unlawful
taking is complete (Reyes, Revised Penal Code Annotated, Book II, 1981
ed., p. 594).
The crime is consummated when the robber acquires possession of
the property, even if for a short time, and it is not necessary that the
property be taken into the hands of the robber, or that he should
have actually carried the property away, out of the physical presence
of the lawful possessor, or that he should have made his escape
with it" (People vs. Quinn, 176 P 2d 404; Woods vs. State, 220 SW
2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d
553).
Contrary to Appellant's submission, therefore, a conviction for consummated
and not merely attempted Robbery is in order.
It is the contention of Appellant that Rodita could not have seen the taking
because the place was dark since the doors were closed and there were no
windows. It will be recalled, however, that Rodita was one of the hostages
herself and could observe the unfolding of events. Her failure to mention the
taking in her sworn statement would not militate against her credibility, it
being settled that an affidavit is almost always incomplete and inaccurate
and does not disclose the complete facts for want of inquiries or suggestions
(People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152 SCRA 570;
People vs. Tan, et al., 89 Phil. 337 [1951]).
294
The fact, too, that Rodita was an employee of Severino would not lessen her
credibility. The defense has not proven that she was actuated by any
improper motive in testifying against the accused.
In the last analysis, the basic consideration centers around the credibility of
witnesses in respect of which the findings of the Trial Court are entitled to
great weight as it was in a superior position to assess the same in the
course of the trial (see People vs. Ornoza G.R. No. L-56283, 30 June 1987,
151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987, 151
SCRA 326).
Anent the second assignment of error, the "surrender" of the Appellant and
his co-accused cannot be considered in their favor to mitigate their liability.
To be mitigating, a surrender must have the following requisites: (a) that the
offender had not been actually arrested; (b) that the offender surrendered
himself to a person in authority or to his agent; and (c) that the surrender
was voluntary (People vs. Canamo, G.R. No. L-62043, 13 August 1985, 138
SCRA 141).
The "surrender" by the Appellant and his co-accused hardly meets these
requirements. They were, indeed, asked to surrender by the police and
military authorities but they refused until only much later when they could no
longer do otherwise by force of circumstances when they knew they were
completely surrounded and there was no chance of escape. The surrender
of the accused was held not to be mitigating as when he gave up only after
he was surrounded by the constabulary and police forces (People vs.
Sigayan et al., G.R. Nos. L-18523-26, 30 April 1966, 16 SCRA 839; People
vs. Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167). Their
surrender was not spontaneous as it was motivated more by an intent to
insure their safety. And while it is claimed that they intended to surrender,
the fact is that they did not despite several opportunities to do so. There is
no voluntary surrender to speak of (People vs. Dimdiman 106 Phil. 391
[1959]).
All told, the assigned errors remain unsubstantiated and we find the guilt of
the accused-appellant, Bienvenido Salvilla, established beyond reasonable
doubt.
Although unassigned as an error, we deem it necessary to turn now to the
nature of the linked offenses involved and the penalty imposed by the Trial
Court.
Appellant and his co-accused were charged in the Information with
"Robbery with Serious Physical Injuries and Serious Illegal Detention ("Art.
295, par. 3, in conjunction with Art. 267, RPC )and sentenced to reclusion
perpetua. We agree with the Trial Court that a complex crime under Article
48 of the Revised Penal Code has been committed such that the penalty for
the more serious offense of Serious Illegal Detention (Art. 267, Revised
Penal Code), or "reclusion perpetua to death," is to be imposed instead of
the penalty prescribed for Robbery with Serious Physical Injuries (Art. 294
(3), which is reclusion temporal.
Under Article 48, a complex crime arises "when an offense is a necessary
means for committing the other." The term "necessary means" does not
connote indispensable means for if it did then the offense as a "necessary
means" to commit another would be an indispensable element of the latter
and would be an ingredient thereof. The phrase "necessary means" merely
signifies that one crime is committed to facilitate and insure the commission
of the other (Aquino, Revised Penal Code, Vol. I, 1987 ed., p.
624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In
this case, the crime of Serious Illegal Detention was such a "necessary
means" as it was selected by Appellant and his co-accused to facilitate and
carry out more effectively their evil design to stage a robbery.
The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos.
L-71765-66, 29 April 1987, 149 SCRA 325) where the accused were
convicted of Robbery but acquitted in the case for Serious Illegal Detention
and where it was held that "the detention is absorbed in the crime of
robbery." For one, in Astor, there were two (2) separate Informations filed,
one for Robbery and another for Serious Illegal Detention. In the present
case, only one Information was filed charging the complex offense. For
another, in Astor, the robbery had already been consummated and the
detention was merely to forestall the capture of the robbers by the police.
Not so in this case, where the detention was availed of as a means of
insuring the consummation of the robbery. Further, in Astor, the detention
was only incidental to the main crime of robbery so that it was held therein:
. . . were appellants themselves not trapped by the early arrival of
the police at the scene of the crime, they would have not anymore
detained the people inside since they have already completed their
job. Obviously, appellants were left with no choice but to resort to
detention of these people as security, until arrangements for their
safe passage were made. This is not the crime of illegal detention
punishable under the penal laws but an act of restraint in order to
delay the pursuit of the criminals by peace officers (People v. Sol, 9
Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised Penal
Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the victims in a
robbery case were detained in the course of robbery, the detention
is absorbed by the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.).
In the case at bar, the detention was only incidental to the main
crime of robbery, and although in the course thereof women and
295
children were also held, that threats to kill were made, the act should
not be considered as a separate offense. Appellants should only be
held guilty of robbery.
In contract, the detention in the case at bar was not only incidental to the
robbery but was a necessary means to commit the same. After the amount
1âwphi1
of P20,000.00 was handed to Appellant, the latter and his co-accused still
refused to leave. The victims were then taken as hostages and the demand
to produce an additional P100,000.00 was made as a prerequisite for their
release. The detention was not because the accused were trapped by the
police nor were the victims held as security against the latter. The detention
was not merely a matter of restraint to enable the malefactors to escape, but
deliberate as a means of extortion for an additional amount. The police and
other authorities arrived only much later after several hours of detention had
already passed. And, despite appeals to appellant and his co-accused to
surrender, they adamantly refused until the amount of P100,000.00 they
demanded could be turned over to them. They even considered P50,000.00,
the amount being handed to them, as inadequate.
The foregoing features also distinguish this case from those of U.S. v. Sol, 9
Phil. 265 [1907] where the restraint was for no other purpose than to prevent
the victims from reporting the crime to the authorities; from People v.
Gamboa, 92 Phil. 1085 [1953] where the victims were taken to a place one
kilometer away and shot in order to liquidate the witnesses to the robbery;
from People v. Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43 Phil.
167 [1922], all of which cases were cited in Astor and where the victims
were only incidentally detained so that the detention was deemed absorbed
in robbery.
In other words, unlike in the above cases, the elements of the offense of
Serious Illegal Detention are present in this case. The victims were illegally
deprived of their liberty. Two females (Mary and Minnie) and a minor
(Minnie), a specified circumstance in Article 267 (3), were among those
detained. The continuing detention was also for the purpose of extorting
ransom, another listed circumstance in Article 267 (last parag.) not only from
the detained persons themselves but even from the authorities who arrived
to rescue them.
It follows then that as the detention in this case was not merely incidental to
the robbery but a necessary means employed to facilitate it, the penalty
imposed by the Trial Court is proper.
WHEREFORE, the judgment appealed from is hereby AFFIRMED.
Proportionate costs.
SO ORDERED.
Paras, Padilla Sarmiento and Regalado JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 33463 December 18, 1930
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
BASILIO BORINAGA, defendant-appellant.
Paulo Jaro for appellant.
Attorney-General Jaranilla for appellee.
MALCOM, J.:
Sometime prior to March 4, 1929, an American by the name of Harry H.
Mooney, a resident of the municipality of Calubian, Leyte, contracted with
one Juan Lawaan for the construction of a fish corral. Basilio Borinaga was
associated with Lawaan in the construction of the corral. On the morning of
March 4, 1929, Lawaan, with some of his men, went to Mooney's shop and
tried to collect from him the whole amount fixed by the contract,
notwithstanding that only about two-thirds of the fish corral had been
finished. As was to be expected, Mooney refused to pay the price agreed
upon at that time. On hearing this reply of Mooney, Lawaan warned him that
if he did not pay, something would happen to him, to which Mooney
answered that if they wanted to do something to him they should wait until
after breakfast, Lawaan then left with his men, and Mooney, after partaking
of his morning meal, returned to his shop.
On the evening of the same day, Mooney was in the store of a neighbor by
the name of Perpetua Najarro. He had taken a seat on a chair in front of the
Perpetua, his back being to the window. Mooney had not been there long
when Perpetua saw Basilio Borinaga from the window strike with a knife at
Mooney, but fortunately for the latter, the knife lodged in the back of the
chair on which Mooney was seated. Mooney fell from the chair as a result of
the force of the blow, but was not injured. Borinaga ran away towards the
296
market place. Before this occurred, it should be stated that Borinaga had
been heard to tell a companion: "I will stab this Mooney, who is an American
brute." After the attack, Borinaga was also heard to say that he did not hit
the back of Mooney but only the back of the chair. But Borinaga was
persistent in his endeavor, and hardly ten minutes after the first attack, he
returned, knife in hand, to renew it, but was unable to do so because
Mooney and Perpetua were then on their guard and turned a flashlight on
Borinaga, frightening him away. Again the same night, Borinaga was
overheard stating that he had missed his mark and was unable to give
another blow because of the flashlight. The point of the knife was
subsequently, on examination of the chair, found embedded in it.
The foregoing occurrences gave rise to the prosecution of Basilio Borinaga
in the Court of First Instance of Leyte for the crime of frustrated murder. The
defense was alibi, which was not given credence. The accused was
convicted as charged, by Judge Ortiz, who sentenced him to fourteen years,
eight months, and one day of imprisonment, reclusion temporal, with the
accessory penalties and the costs.
The homicidal intent of the accused was plainly evidenced. The attendant
circumstances conclusively establish that murder was in the heart and mind
of the accused. More than mere menaces took place. The aggressor stated
his purpose, which was to kill, and apologized to his friends for not
accomplishing that purpose. A deadly weapon was used. The blow was
directed treacherously toward vital organs of the victim. The means used
were entirely suitable for accomplishment. The crime should, therefore, be
qualified as murder because of the presence of the circumstance of
treachery.
The only debatable question, not referred to in the briefs, but which must be
decided in order to dispose of the appeal, is: Do the facts constitute
frustrated murder or attempted murder within the meaning of article 3 of the
Penal Code? Although no exact counterpart to the facts at bar has been
found either in Spanish or Philippine jurisprudence, a majority of the court
answer the question propounded by stating that the crime committed was
that of frustrated murder. This is true notwithstanding the admitted fact that
Mooney was not injured in the least.
The essential condition of a frustrated crime, that the author perform all the
acts of execution, attended the attack. Nothing remained to be done to
accomplish the work of the assailant completely. The cause resulting in the
failure of the attack arose by reason of forces independent of the will of the
perpetrator. The assailant voluntarily desisted from further acts. What is
known as the subjective phase of the criminal act was passed. (U. S. vs.
Eduave [1917], 36 Phil., 209; People vs. Mabugat [1926], 51 Phil., 967.)
No superfine distinctions need be drawn in favor of that accused to establish
a lesser crime than that of frustrated murder, for the facts disclose a wanton
disregard of the sanctity of human life fully meriting the penalty imposed in
the trial court.
Based on foregoing considerations, the judgment appealed from will be
affirmed, with the costs of this instance against the appellant.
Avanceña, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur. lawphi1> net
Separate Opinions
VILLA-REAL, J., dissenting:
We dissent from the opinion of the majority in so far as it finds the
defendant-appellant guilty of the crime of frustrated murder instead of that of
an attempt to commit murder.
Article 3 of the Penal Code provides as follows:
ART. 3. Frustrated felonies and attempts to commit felonies are
punishable, as well as those which are consummated.
A felony is frustrated when the offender performs all the acts of
execution which should produce the felony as a consequence, but
which, nevertheless, do no produce it by reason of causes
independent of the will of the perpetrator.
There is an attempt when the offender commences the commission
of the felony directly by overt acts, and does not perform all the acts
of execution which constitute the felony by reason of some cause or
accident other than his own voluntary desistance.
The pertinent facts as found by the court below and by this court are the
following:
297
On the evening of the same day, Mooney was in the store of a neighbor by
the name of Perpetua Najarro. He had taken a seat on a chair in front of
Perpetua, his back being to the window. Mooney had not been there long
when Perpetua saw Basilio Borinaga from the window strike with a knife at
Mooney, but fortunately for the latter, the knife lodged in the back of the
chair on which Mooney was seated. Mooney fell from the chair as a result of
the force of the blow, but was not injured. Borinaga ran away towards the
market place. Before this occurred, it should be stated that Borinaga had
been heard to tell a companion: "I will stab this Mooney, who is an American
brute." After the attack, Borinaga was also heard to say that he did not hit
the back of Mooney but only the back of the chair. But Borinaga was
persistent in his endeavor, and hardly ten minutes after the first attack, he
returned, knife in hand, to renew it, but was unable to do so because
Mooney and Perpetua were then on their guard and turned a flashlight on
Borinaga, frightening him away. Again that same night, Borinaga was
overheard stating that he had missed his mark and was unable to give
another blow because of the flashlight. The point of the knife was
subsequently, on examination of the chair, found embedded in it.
Since the facts constituting frustrated felony and those constituting an
attempt to commit felony are integral parts of those constituting
consummated felony, it becomes important to know what facts would have
been necessary in order that the case at bar might have been a
consummated murder, so that we may determine whether the facts proved
during the trial constitute frustrated murder or simply an attempt to commit
murder.
In order that the crime committed by the defendant-appellant might have
been a consummated murder it would have been necessary for him to have
inflicted a deadly wound upon a vital spot of the body of Mooney, with
treachery, as a result of which he should have died.
Since according to the definition given by the Code a frustrated felony is
committed "when the offender performs all the acts of execution which
should produce the felony as a consequence, but which, nevertheless, do
not produce it by reason of causes independent of the will of the perpetrator"
let us examine the facts of record to find out whether the said defendant-
appellant has performed all the acts of execution which should produce the
murder of Mooney as a consequence. The prisoner at bar, intending to kill
Mooney, approached him stealthily from behind and made movement with
his right hand to strike him in the back with a deadly knife, but the blow,
instead of reaching the spot intended, landed on the frame of the back of the
chair on which Mooney was sitting at the time and did not cause the
slightest physical injury on the latter. The acts of execution performed by the
defendant-appellant did not produce the death of Mooney as a consequence
nor could they have produced it because the blow did not reach his body;
therefore the culprit did not perform all the acts of execution which should
produce the felony. There was lacking the infliction of the deadly wound
upon a vital spot of the body of Mooney.
It is true that the frame of the back of the chair stood between the deadly
knife and the back of Mooney; but what it prevented was the wounding of
said Mooney in the back and not his death, had he been wounded. It is the
preventing of death by causes independent of the will of the perpetrator,
after all the acts of execution which should produce the felony as a
consequence had been performed, that constitutes frustrated felony,
according to the law, and not the preventing of the performance of all the
acts of execution which constitute the felony, as in the present case. The
interference of the frame of the back of the chair which prevented the
defendant-appellant from wounding Mooney in the back with a deadly knife,
made his acts constitute an attempt to commit murder; for he had
commenced the commission of the felony directly by overt acts, and did not
perform all the acts of execution which constitute the felony by reason of a
cause or accident other than his own voluntary desistance.
The foregoing considerations force us to the conclusion that the facts
alleged in the information and proved during the trial are not sufficient to
constitute the crime of frustrated murder, but simply the crime of an attempt
to commit murder.
Johnson and Street, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5848 April 30, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.
Exequiel Zaballero, Jr. for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio
Villamor for appellee.
LABRADOR, J.:
298
This is an appeal from a judgment of the Court of First Instance of Manila
finding the defendant-appellant herein Sy Pio, alias Policarpio de la Cruz,
guilty of frustrated murder against the person of Tan Siong Kiap, and
sentencing him to suffer an indeterminate sentence of 6 years, 1 month, and
11 days of prision mayor, to 14 years, 8 months, and 1 day of reclusion
temporal, to indemnify the offended party Tan Siong Kiap in the sum of
P350, without subsidiary imprisonment in case of insolvency, and to pay the
costs. The case was appealed to the Court of Appeals, but that court
certified it to this Court under the provisions of section 17 (4) of Republic Act
No. 296, on the ground that the crime charged was committed on the same
occasion that the defendant-appellant had committed crime of murder, with
which the defendant-appellant was also charged.
The evidence for the prosecution shows that early in the morning of
September 3, 1949, the defendant-appellant entered the store at 511
Misericordia, Sta Cruz, Manila. Once inside he started firing a .45 caliber
pistol that he had in his hand. The first one shot was Jose Sy. Tan Siong
Kiap, who was in the store and saw the accused enter and afterwards fire a
shot at Jose Sy, asked the defendant-appellant, "What is the idea?"
Thereupon defendant-appellant turned around and fired at him also. The
bullet fired from defendant-appellant's pistol entered the right shoulder of
Tan Siong Kiap immediately ran to a room behind the store to hide. From
there he still heard gunshot fired from defendant-appellant's pistol, but
afterwards defendant-appellant ran away.
Tan Siong Kiap was brought to the Chinese General Hospital, where his
wound was treated. He stayed there from September 3 to September 12,
1949, when he was released upon his request and against the physician's
advice. He was asked to return to the hospital for further treatment, and he
did so five times for a period of more than ten days. Thereafter his wound
was completely healed. He spent the sum of P300 for hospital and doctor's
fees.
The defendant-appellant shot two other persons in the morning of
September 3, 1949, before shooting and wounding Tan Siong Kiap; one
was Ong Pian and the other Jose Sy. On September 5 information was
received by the Manila Police Department that defendant-appellant was in
custody of the Constabulary in Tarlac, so a captain of the Manila police by
the name of Daniel V. Lomotan proceeded to Tarlac. There he saw the
defendant-appellant and had a conversation with him. On this occasion
defendant-appellant and had a conversation with him. On this occasion
defendant-appellant admitted to Lomotan that his victims were Tan Siong
Kiap, Ong Pian, and Jose Sy. The Constabulary in Tarlac also delivered to
Lomotan the pistol used by the defendant-appellant, marked Exhibit C, and
its magazine, Exhibit C-1, both of which the Constabulary had confiscated
from the defendant-appellant. The defendant-appellant was thereupon
delivered to the custody of Lomotan, and the latter brought him to Manila,
where his statement was taken down in writing. This declaration was
submitted at the time of the trial as Exhibit D, and it contains all the details of
the assaults that defendant-appellant 3 against the persons of Tan Siong
Kiap, Ong Pian, and Jose Sy. This written statement was taken down on a
typewriter and afterwards signed by the defendant-appellant in both his
Chinese and Filipino names, the latter being Policarpio de la Cruz.
According to the declaration of the defendant-appellant, some months prior
to September 3, 1949, he was employed as an attendant in a restaurant
belonging to Ong Pian. Defendant-appellant's wife by the name of Vicenta
was also employed by Ong Pian's partner, Eng Cheng Suy. Prior to
September 3 the relatives of his wife had been asking the latter for help,
because her father was sick. Defendant-appellant asked money from Ong
Pian, but the latter could only give him P1. His wife was able to borrow P20
from her employer, and this was sent to his wife's parents in Cebu.
Afterwards defendant-appellant was dismissed from his work at the
restaurant of Ong Pian, and he became a peddler. Ong Pian presented a list
of the sums that defendant-appellant had borrowed from him, and these
sums were deducted from the salary of his wife. Defendant-appellant did not
recognize these sums as his indebtedness, and so he resented Ong Pian's
conduct.
As to Tan Siong Kiap, the confession states that a few days before
September 3, 1949, defendant-appellant had been able to realize the sum of
P70 from the sales of medicine that he peddled. He laid his money in a
place in his room, but the following morning he found that it had
disappeared from the place in which he had placed it. Tan Siong Kiap and
Jose Sy, upon the discovery of the loss of money, told defendant-appellant
that he must have given the money to his wife, and that nobody had stolen
it. After this incident of the loss, the defendant-appellant used to hear Tan
Siong Kiap and Jose Sy and other Chinamen say that the money had not
been actually stolen, but that he lost it in gambling. Because of these
accusations against him, he nurtured resentment against both Tan Siong
Kiap and Jose Sy.
So early in the morning of September 3, while a Chinaman by the name of
Ngo Cho, who the possessor of a caliber .45 pistol, was away from his
room, defendant-appellant got his pistol and tucked it in his belt. With this
pistol he went to the restaurant at 822 Ongpin, and there shot Ong Pian.
After shooting him, he proceeded to 511 Misericordia, in store where Jose
Sy and Tan Siong Kiap were, and there he fired at them. Then he escaped
to Legarda Street, in Sampaloc, where he borrowed P1 from his relatives.
From there he went to Malabon, to the house of his mother, to whom he told
he had killed two persons and from he asked money.
299
The foregoing is the substance of the written declaration made by the
defendant-appellant in Exhibit D on September 6, 1949. At the time of the
trial, however, he disowned the confession and explained that he signed it
without having read its contents. He declared that it was not he who shot the
three victims, but it was one by the name of Chua Tone, with whom he had
previously connived to kill the three other victims. He introduced no
witnesses, however, to support his denial. Neither did he deny that he
admitted before Captain Lomotan having killed the three persons, or having
been found in Tarlac in possession of the caliber .45 pistol, Exhibit C, and its
magazine, Exhibit C-1. In his cross-examination he admitted many of the
incidents mentioned in the confession, especially the cause of his
resentment against his victims Ong Pian, Jose Sy, and Tan Siong Kiap.
The trial court refused to believed his testimony, and therefore, found him
guilty of the crime charged.
On this appeal counsel for the defendant-appellant claims that the trial court
erred in not finding that Tan Siong Kiap received the shot accidentally from
the same bullet that had been fired at Jose Sy, and in finding that
defendant-appellant has committed a crime distinct and separate from that
of murder for the slaying of Jose Sy. We find no merit in this contention.
According to the uncontradicted testimony of the offended party Tan Siong
Kiap, when the latters saw defendant-appellant firing shots he asked him
why he was doing so, and the defendant-appellant, instead of answering
him, turned around and fired at him also. It is not true, therefore, that the
shot which hit him was fired at Sy.
It is also contended that the evidence is not sufficient to sustain the
judgment of conviction. We also find no merit in this contention. The
evidence submitted to prove the charge consists of: the uncontradicted
testimony of the victim himself; the admissions made verbally by the
defendant-appellant before Captain Lomotan in Tarlac; the fact that the
defendant-appellant had escaped and was found in Tarlac; his possession
of the .45 caliber pistol coupled with the fact, attested to by the testimony of
the physician who examined and treated the wounds of Tan Siong Kiap, that
the wounds found in his person must have been caused by the caliber .45
bullet; and, lastly, the confession of the defendant-appellant himself, Exhibit
D, which he was not able to impugn. As against this mass of evidence,
defendant-appellant has only made a very unbelievable story that it was not
he but another that had committed the crime charged. His admissions at the
time of the trial regarding the incidents, as well as the cause of his having
assaulted his victims, coincide exactly with the reasons given in his written
confession. This shows that he had made the confession himself, for
nobody but himself could have known the facts therein stated. The claim
that the offense has not been proved beyond reasonable doubt must be
dismissed.
The defendant-appellant lastly claims that the lower court also erred in
sentencing him to pay an indemnity of P350. The offended party testified
that he actually spent P300 for hospital and doctor's fees, and that he was
confined in the hospital for nine days. The above facts stand uncontradicted.
This assignment of error must also be dismissed.
It is lastly contended that the defendant-appellant should be found guilty
only of less serious physical injuries instead of the crime of frustrated
murder as defendant-appellant admitted in his confession in the open court
that he had a grudge against the offended party, and that he connived with
another to kill the latter. The intent to kill is also evident from his conduct in
firing the shot directly at the body of the offended party.
But while intent to kill is conclusively proved the wound inflicted was not
necessarily fatal, because it did not touch any of the vital organs of the
body. As a matter of fact, the medical certification issued by the physician
who examined the wound of the offended party at the time he went to the
hospital, states that the wound was to heal within a period of fourteen days,
while the offended party actually stayed in the hospital for nine days and
continued receiving treatment thereafter five time for the period of more than
ten days, or a total of not more than thirty days. The question that needs to
be determined, therefore, is: Did the defendant-appellant perform all the
acts of execution necessary to produce the death of his victim?
In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47 Phil.,
768 and People vs. Borinaga, 55 Phil., 433, this Court has held that it is not
necessary that the accused actually commit all the acts of execution
necessary to produce the death of his victim, but that it is sufficient that he
believes that he has committed all said acts. In the case of People vs.
Dagman, supra, the victim was first knocked down by a stone thrown at him,
then attacked with a lance, and then wounded by bolos and clubs wielded
by the accused, but the victim upon falling down feigned death, and the
accused desisted from further continuing in the assault in the belief that their
victim was dead. And in the case of People vs. Borinaga, supra, the
accused stabbed his intended victim, but the knife with which he committed
the aggression instead of hitting the body of the victim, lodged in the back of
the chair in which he was seated, although the accused believed that he had
already harmed him. In both these cases this Court held that of the crime
committed was that of frustrated murder, because the subjective phase of
the acts necessary to commit the offense had already passed; there was full
and complete belief on the part of the assailant that he had committed all
the acts of execution necessary to produce the death of the intended victim.
In the case at bar, however, the defendant-appellant fired at his victim, and
the latter was hit, but he was able to escape and hide in another room. The
fact that he was able to escape, which appellant must have seen, must have
300
produced in the mind of the defendant-appellant that he was not able to his
his victim at a vital part of the body. In other words, the defendant-appellant
knew that he had not actually all the acts of execution necessary to kill his
victim. Under these circumstances, it can not be said that the subjective
phase of the acts of execution had been completed. And as it does not
appear that the defendant-appellant continued in the pursuit, and as a
matter of fact, he ran away afterwards a reasonable doubt exist in our mind
that the defendant-appellant had actually believed that he has committed all
the acts of execution or passed the subjective phase of the said acts. This
doubt must be resolved in favor of the defendant-appellant.
We are, therefore, not prepared to find the defendant-appellant guilty of
frustrated murder, as charged in the information. We only find him guilty of
attempted murder, because he did not perform all the acts of execution,
actual and subjective, in order that the purpose and intention that he had to
kill his victim might be carried out.
Therefore, the judgment appealed from should be, as it is hereby, modified
and the defendant-appellant is found guilty of the crime of attempted
murder, and the sentence imposed upon him reduced to an indeterminate
penalty of from 4 years, 2 months, and 1 day of prision correccional to 10
years of prision mayor. In all other respects the judgment is affirmed. With
costs against the defendant-appellant.
Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and
Concepcion, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79123-25 January 9, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EMELIANO TRINIDAD, accused-appellant.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellant.
MELENCIO-HERRERA, J.:
On the sole issue that the adduced evidence is insufficient to prove his guilt
beyond reasonable doubt of two crimes of Murder and one of Frustrated
Murder with which he has been charged, accused Emeliano Trinidad
appeals from the judgment of the Regional Trial Court, Branch 7, Bayugan,
Agusan del Sur.
From the testimony of the principal witness, Ricardo TAN, the prosecution
presents the following factual version:
The deceased victim, Lolito Soriano, was a fish dealer based in Davao City.
His helpers were TAN, a driver, and the other deceased victim Marcial
LAROA. On 19 January 1983, using a Ford Fiera, they arrived at Butuan
City to sell fish. In the morning of 20 January 1983 SORIANO drove the
Fiera to Buenavista, Agusan del Norte, together with LAROA and a helper of
one Samuel Comendador. TAN was left behind in Butuan City to dispose of
the fish left at the Langihan market. He followed SORIANO and LAROA,
however, to Buenavista later in the morning.
While at Buenavista, accused Emeliano TRINIDAD, a member of the
Integrated National Police, assigned at Nasipit Police Station, and residing
at Baan, Butuan City, asked for a ride to Bayugan, Agusan del Sur, which is
on the way to Davao City. TRINIDAD was in uniform and had two firearms,
a carbine, and the other, a side-arm .38 caliber revolver. SORIANO,
LAROA, TAN, and TRINIDAD then left Butuan on 20 January 1983 at about
5:20 P.M. bound for Davao City. TAN was driving the Fiera. Seated to his
right was SORIANO, LAROA and the accused TRINIDAD, in that order.
When they reached the stretch between El Rio and Afga, TRINIDAD
advised them to drive slowly because, according to him, the place was
dangerous. All of a sudden, TAN heard two gunshots. SORIANO and
LAROA slumped dead. TAN did not actually see the shooting of LAROA but
he witnessed the shooting of SORIANO having been alerted by the sound of
the first gunfire. Both were hit on the head. TRINIDAD had used his carbine
in killing the two victims.
TAN then hurriedly got off the Fiera, ran towards the direction of Butuan City
and hid himself in the bushes. The Fiera was still running slowly then but
after about seven (7) to ten (10) meters it came to a halt after hitting the
muddy side of the road. TAN heard a shot emanating from the Fiera while
he was hiding in the bushes.
After about twenty (20) to thirty (30) minutes, when a passenger jeep
passed by, TAN hailed it and rode on the front seat. After a short interval of
time, he noticed that TRINIDAD was seated at the back. Apparently noticing
301
TAN as well, TRINIDAD ordered him to get out and to approach him
(TRINIDAD) but, instead, TAN moved backward and ran around the jeep
followed by TRINIDAD. When the jeep started to drive away, TAN clung to
its side. TRINIDAD fired two shots, one of which hit TAN on his right thigh.
As another passenger jeep passed by, TAN jumped from the first jeep and
ran to the second. However, the passengers in the latter jeep told him to get
out not wanting to get involved in the affray. Pushed out, TAN crawled until
a member of the P.C. chanced upon him and helped him board a bus for
Butuan City.
TRINIDAD's defense revolved around denial and alibi. He contended that he
was in Cagayan de Oro City on the date of the incident, 20 January 1983. At
that time, he was assigned as a policeman at Nasipit Police Station, Agusan
del Norte. He reported to his post on 19 January 1983 but asked permission
from his Station Commander to be relieved from work the next day, 20
January, as it was his birthday. He left Baan, his Butuan City residence, at
about 3:00 P.M. on 20 January 1983 and took a bus bound for Cagayan de
Oro City. He arrived at Cagayan de Oro at around 8:00 P.M. and proceeded
to his sister's house at Camp Alagar to get his subsistence allowance, as his
sister was working thereat in the Finance Section.
At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in
addition to his sister. Sgt. Caalim corroborated having seen TRINIDAD then.
Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan at
lunch time on 21 January 1983 arriving at the latter place around 6:00 P.M.,
and went to his house directly to get his service carbine. He was on his way
to Nasipit to report for duty on 21 January 1983 when he was arrested at
around 6:00 P.M. at Buenavista, Agusan del Norte.
After joint trial on the merits and unimpressed by the defense by the Trial
Court** sentenced the accused in an "Omnibus Decision", thus:
WHEREFORE PREMISES CONSIDERED, this Court finds
Emeliano Trinidad GUILTY beyond reasonable doubt of the
crimes of Murder and Frustrated Murder.
In the Frustrated Murder, there being no mitigating
circumstance, and taking into account the provisions of the
Indeterminate Sentence Law, accused Trinidad is meted out
a penalty of:
1) 8 years and 1 day to 12 years of prision mayor medium;
 2) to indemnify the complainant the amount of P 5,000.00; A It was more or less at 6:00
and to 7:00 o'clock.

3) to pay the costs. Q You were riding the fish car

which you said?
Likewise, in the two murder cases, Trinidad is accordingly
sentenced: A I was not able to take the
fish car in going to
1) to a penalty of Reclusion Perpetua in each case; Buenavista because they left
me fishes to be dispatched
2) to indemnify the heirs of Marcial Laroa and Lolito Soriano yet.
the amount of P30,000.00 each; and
Q In other words, you did not
3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo). go to Buenavista on January
20, 1983?
Before us now, TRINIDAD claims that the Trial Court erred in giving full faith
and credit to TAN's testimony who, TRINIDAD alleges, was an unreliable A I was able to go to
witness. That is not so. Buenavista after the fishes
were consumed.
We find no variance in the statement made by TAN before the NAPOLCOM
Hearing Officer that when TRINIDAD boarded the Fiera in Buenavista, he Q What time did you go to
(TAN) was not in the vehicle, and that made in open Court when he said Buenavista?
that he was with TRINIDAD going to Butuan City on board the Fiera. For the
facts disclose that when TRINIDAD boarded the Fiera in Buenavista, TAN A It was more or less from
was still in Langihan distributing fish. The Fiera left for Buenavista, driven by 11:00 o'clock noon.
SORIANO between 6:00 to 7:00 A.M., while TAN followed only at 11:00,
A.M. in another vehicle. So that when TRINIDAD boarded the Fiera in Q What transportation did
Buenavista, TAN was not yet in that vehicle although on the return trip from you take?
Butuan City to Davao City, TAN was already on board. In fact, TAN was the
one driving. TAN's testimony clarifying this point reads: A I just took a ride with
another fish car because they
Q Did you not say in your were also going to dispatch
direct examination that you fishes in Buenavista.
went to Buenavista, Agusan
del Norte? Q Now, who then went to
Buenavista with the fish car
A We were in Langihan and at about 7:00 o'clock in the
since our fishes were not morning of January 20,
consumed there, we went to 1983?
Buenavista.
A Lolito Soriano and Marcia
Q Now, what time did you Laroa with his helper.
leave for Buenavista from
Langihan? xxxxxx

302
 Q Now, when this fish car A No, sir.
returned to Butuan City who
drove it? Q Could you tell the Court
why you failed to reach
A Lolito Soriano. Davao?

Q Were you with the fish car A Because we were held-up.

in going back to Langihan?
Q Who held-up you?
A Yes, sir. (T.S.N., December
6, 1985, pp. 53-54). A Emeliano Trinidad, sir.

Felimon Comendador, also a fish vendor, and a resident of Butuan City, Q Are you referring to
testified that he saw TRINIDAD riding in the Fiera on the front seat in the accused Emeliano Trinidad
company of TAN, SORIANO and LAROA, when the Fiera stopped by his whom you pointed to the
house at Butuan City (TSN, November 5, 1985, pp. 32-33). court awhile ago?

The other inconsistencies TRINIDAD makes much of, such as, that TAN A Yes, sir.
was unsure before the NAPOLCOM Hearing Officer whether TRINIDAD was
wearing khaki or fatigue uniform but, in open Court, he testified positively Q Will you tell the Court how
that TRINIDAD was in khaki uniform; and that while TAN declared that did Emeliano Trinidad holdup
TRINIDAD was wearing a cap, prosecution witness Felimon Comendador you?
said that he was not but was in complete fatigue uniform, are actually trivial
details that do not affect the positive identification of TRINIDAD that TAN
A When we reach between El
has made nor detract from the latter's overall credibility.
Rio and Afga, Trinidad
advised us to run slowly
Nor is there basis for TRINIDAD to contend that the absence of gunpowder because this place is
burns on the deceased victims negates TAN's claim that they were shot dangerous. Then suddenly
"point-blank." Actually, this term refers merely to the "aim directed straight there were two gun bursts.
toward a target" (Webster's Third New International Dictionary) and has no
reference to the distance between the gun and the target. And in point of
Q Now, you heard two gun
fact, it matters not how far the assailant was at the time he shot the victims,
bursts. What happened?
the crucial factor being whether he did shoot the victim or not.
What did you see if there was
any?
TRINIDAD's defense of alibi is inherently weak and cannot prevail over the
straightforward and detailed descriptive narration of TAN, thus:
A I have found out that Lolito
Soriano and Marcial Laroa
Q Now, from Butuan City, already fall.
where did you proceed?
Q Fall dead?
A We proceeded to Davao.
A They were dead because
Q Did you in fact reach they were hit at the head.
Davao on that date?

303
Q You mean to inform the
Court that these two died
because of that gun shot
bursts?
A Yes, sir.
Q Did you actually see
Trinidad shooting the two?
A I did not see that it was
really Trinidad who shot
Laroa but since I was already
alerted by the first burst, I
have seen that it was
Trinidad who shot Soriano.
Q What was the firearm
used?
A Carbine, sir.
xxxxxx
Q Now, after you saw that the
two fell dead, what did you
do?
A I got out from the Ford
Fiera while it was running.
xxxxxx
Q From the place where you
were because you said you
ran, what transpired next?
A I hid myself at the side of
the jeep, at the bushes.
Q While hiding yourself at the
bushes, what transpired?
A I heard one gun burst.
304
Q From what direction was
that gun bursts you heard?
A From the Ford Fiera, sir.
Q After that, what happened?
A At around 20 to 30 minutes,
I moved out from the place
where I hid myself because I
wanted to go back to Butuan,
Then, I boarded the jeep and
sat at the front seat but I
found out that Emeliano
Trinidad was at the back
seat.
Q When you found out that
Trinidad was at the back,
what happened?
A He ordered me to get out.
Q Now, when you got down,
what happened?
A When I got out from the
jeep, Trinidad also got out.
Q Tell the Court, what
happened after you and
Trinidad got out from the
jeep?
A He called me because he
wanted me to get near him.
Q What did you do?
A I moved backward.
'Q Now, what did Trinidad
do?
A He followed me.
Q While Trinidad followed
you, what happened?
A I ran away around the jeep.
Q Now, while you were
running around the jeep, what
happened?
A The driver drove the jeep.
Q Now, after that, what did
you do?
A I ran after the jeep and then
I was able to take the jeep at
the side of it.
Q How about Trinidad, where
was he at that time?
A He also ran, sir.
Q Now, when Trinidad ran
after you what happened?
A Trinidad was able to
catchup with the jeep and
fired his gun.
Q Were you hit?
A At that time I did not know
that I was hit because it was
sudden.
Q When for the first time did
you notice that you were hit?
A At the second jeep.
305
Q You mean to inform the
Court that the jeep you first
rode is not the very same
jeep that you took for the
second time?
A No, sir.
Q Now, when you have
notice that you were hit, what
did you do?
A At the first jeep that I took I
was hit, so I got out from it
and stood-up at the middle of
the road so that I can catch
up the other jeep.' (TSN,
December 6, 1985, pp. 44-
49)
TAN's testimony remained unshaken even during cross- examination. No ill
motive has been attributed to him to prevaricate the truth. He was in the
vehicle where the killing transpired was a witness to the actual happening,
and was a victim himself who managed narrowly to escape death despite
the weaponry with which TRINIDAD was equipped.
The defense is correct, however, in contending that in the Frustrated Murder
case, TRINIDAD can only be convicted of Attempted Murder. TRINIDAD
had commenced the commission of the felony directly by overt acts but was
unable to perform all the acts of execution which would have produced it by
reason of causes other than his spontaneous desistance, such as, that the
jeep to which TAN was clinging was in motion, and there was a spare tire
which shielded the other parts of his body. Moreover, the wound on his thigh
was not fatal and the doctrinal rule is that where the wound inflicted on the
victim is not sufficient to cause his death, the crime is only Attempted
Murder, the accused not having performed all the acts of execution that
would have brought about death (People vs. Phones, L-32754-5, July 21,
1978, 84 SCRA 167; People vs. Garcia, L-40106, March 13, 1980, 96 SCRA
497).
But while the circumstances do spell out the two crimes of Murder, the
penalty will have to be modified. For, with the abolition of capital punishment
in the 1987 Constitution, the penalty for Murder is now reclusion temporal in
its maximum period to reclusion perpetua (People vs. Lopez, et al. G.R. No.
71876-76, January 25, 1988 citing People vs. Gavarra, No. L-37673,
October 30, 1987; People vs. Masangkay, G.R. No. 73461, October 27, ROMEO ASPIRIN, NICOLAS GUADALUPE AND HERMIE
1987). With no attending mitigating or aggravating circumstance, said PAHIT, accused-appellants.
penalty is imposable in its medium period or from eighteen (18) years, eight
(8) months and one (1) day to twenty (20) years. The penalty next lower in The Solicitor General for plaintiff-appellee.
degree for purposes of the Indeterminate Sentence Law is prision mayor, Robert J. Landas for acussed-appellants.
maximum, to reclusion temporal, medium, or from ten (10) years and one
(1) day to seventeen (17) years and four (4) months (Article 61, parag. 3,
Revised Penal Code).
GUTIERREZ, JR., J.:
WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of
Murder (on two counts) and Attempted Murder, having been proven beyond
The accused Pedro Ravelo, Bonifacio "Patyong" Padilla, Romeo
reasonable doubt, his conviction is hereby AFFIRMED and he is hereby
Aspirin, Nicolas Guadalupe and Hermie Pahit appeal the two (2)
sentenced as follows:
judgments of the Regional Trial Court of Tandag, Surigao del Sur,
Branch 27, which convicted them of murder of one Reynaldo Cabrera
1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99 Gaurano and of frustrated murder of Joey Lugatiman.
below) for Murder, he shall suffer the indeterminate penalty
of ten (10) years and one (1) day of prision mayor, as
In the murder case (Criminal Case No. 1187), each of the accused was
minimum, to eighteen (18) years, eight (8) months and one
sentenced to serve the penalty of reclusion perpetua and to severally
(1) day of reclusion temporal, as maximum; to indemnify the
pay an indemnity of P25,000.00 to the mother of the victim. In the
heirs of Marcial Laroa and Lolito Soriano, respectively, in the
frustrated murder case (Criminal Case No. 1194), each of them was
amount of P30,000.00 each; and to pay the costs.
sentenced to serve the penalty of imprisonment ranging from eight (8)
years and one (1) day of prision mayor as minimum to ten (10) years
2) In Criminal Case No. 79125 (No. 100 below) for of prision mayor as maximum.
Frustrated Murder, he is hereby found guilty only of
Attempted Murder and sentenced to an indeterminate
The accused were all charged with kidnapping with murder and
penalty of six (6) months and one (1) day of prision
kidnapping with frustrated murder. However, the trial court found
correccional, as minimum, to six (6) years and one (1) day of
accused-appellants guilty only of murder and frustrated murder as
prision mayor, as maximum; to indemnify Ricardo Tan in the
convicted. The accused Josen Ravelo and Jerry Ravelo are still at
sum of P5,000,00; and to pay the costs.
large.
SO ORDERED.
The present petition was originally one that sought the issuance of a
writ of habeas corpus. The Court instead resolved to treat it as an
Paras, Padilla, Sarmiento and Regalado, JJ., concur. appeal in view of the near capital nature of the crimes for which the
appellants were convicted.
Republic of the Philippines
SUPREME COURT The accused-appellants are all membersof the Civilian Home Defense
Manila Force (CHDF) stationed at a checkpoint near the airport at Awasian in
Mabua, Tandag,Surigao del Sur. The prosecution alleged that they
THIRD DIVISION stopped the two (2) victims for questioning on the suspicion that the
latter were insurgents or members of the New People's Army. (NPA).
G.R. No. 78781-82 October 15, 1991
In Criminal Case No. 1187, the accused-appellants were charged with
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, having committed kidnapping with murder in the following manner:
vs.
PEDRO RAVELO, JERRY RAVELO, BONIFACIO "PATYONG" PADILLA,
306
That at approximately 6:30 o'clock in the evening, May 21, 1984,
in Barangay Dawis, San Agustin Sur, municipality of Tandag,
province of Surigao del Sur, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
PEDRO RAVELO, JERRY RAVELO, BONIFACIO `Patyong'
PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, HERMIE
PAHIT and JOSEN RAVELO, conspiring, confederating, and
mutually helping each other did, then and there, wilfully,
unlawfully and feloniously take, pick-up, kidnap by meansof
force, one REYNALDO CABRERA GAURANO, a minor, while the
latter was walking along Tandag Bridge at barangay Dawis, San
Agustin Sur, then the above-named accused carried away the
said, Reynaldo Cabrera Gaurano to barangay Awasian and
detained, kept and locked him in a room at the house of Pedro
Ravelo, one of the accused herein, from 7:00 o'clock in the
evening, May 21, 1984 to 4:00 o'clock dawn, May 22, 1984, or a
period of 10 hours under restraint and against the will of said
minor, Reynaldo Cabrera Gaurano and that the above named
accused during the said period of kidnapping, maltreated and
refused to release said Reynaldo Cabrera Gaurano, and while
on the same period of time at about 4:00 o'clock dawn, May 22,
1984, at barangay Awasian, Tandag, Surigao del Sur and within
the jurisdiction of this Honorable Court, the above-named
accused, Pedro Ravelo, Jerry Ravelo, Bonifacio `Patyong'
Padilla, Romeo Aspirin, Nicolas Guadalupe, Hermie Pahit, and
Josen Ravelo, conspiring, confederating, and mutually helping
each other, armed with a pistol, armalites, and carbines, with
intent to kill, with treachery and evident premeditation did, then
and there wilfully, unlawfully and feloniously, assault, attack,
cut, slash, and burn, the said Reynaldo Cabrera Guarano,
hitting and inflicting upon the latter, the following wounds or
injuries:
1. Blisters formation noted all over the body reddish in color,
which easily peel off on pressure; containing clear fluids; with
hemorrhagic reaction beneath blisters;
2. Swollen face with contusion and hematoma formation;
loosening of hair notes; right ear missing with circular incised
wound around;
3. Incised wound 24 cm. length around the neck cutting the
esophagus, pharynx, arteries and veins; up to the 2nd cervical
bone in depth;
307
4. Contusions and hematomas noted anterior chest wall,
abdomen and at the back; upper and lower extremeties of
different sizes and forms. (Rollo, pp. 8-9)
In Criminal Case No. 1194, they werecharged with kidnapping with
frustrated murder committed as follows:
That on or about 1:00 o'clock in the morning on May 22, 1984 in
barangay Awasian, municipality of Tandag, province of Surigao
del Sur, Philippines and within the jurisdiction of this
Honorable Court, the above named accused PEDRO RAVELO,
HERMIE PAHIT, BONIFACIO PADILLA, ROMEO ASPIRIN,
NICOLAS GUADALUPE, JERRY RAVELO AND JOSEN RAVELO,
conspiring, confederating and mutually aiding one another
armed with the deadly weapons such as pistols, armalite and
carbine, did then and there wilfully, unlawfully and feloniously
by means of force and at gun point stop the hauler truck of the
South Sea Merchant Company which was on the way to
Tandag, Surigao del Sur from sitio Lumbayagan, Barangay
Maticdom, municipality of Tandag, Surigao del Sur and kidnap
one JOEY LUGATIMAN, who is on board the said hauler truck
by forcibly taking said Joey Lugatiman and carry him to the
house of accused Pedro Ravelo then to the Airborne
Headquarters at Mabua, Tandag, Surigao del Sur, and while
thereat and in pursuance of their conspiracy, with intent to kill,
with evident premeditation and treachery and by taking
advantage of their superior strength being armed with deadly
weapon did then and there wilfully, unlawfully and feloniously
assault, by hitting and inflicting upon the latter the following
wounds or injuries:
1. Small abrasion and hematoma, both wrist and left ankle;
2. Multiple small abrasions, chest and right neck and right
ankle;
3. Multiple small abrasions and small hematoma, back;
4. Abrasion, upper left lips. (Rollo, pp.18-19)
The trial court based its findings on evidence presented by the
prosecution at the trial proper which commenced several months after
the informations were filed. The prosecution evidence in Criminal Case
No. 1187 are quoted from the judgment, thus:
Witness Edilberto Salazar, 17 years old, student and resident of
Tandag, testified that he knew all the accused Pedro Ravelo,
Bonifacio Padilla, Romeo Aspirin, Nicolas Guadalupe and
Hermie Pahit. On May 21, 1984 at 5:30 in the afternoon, he was
with a certain Diego Gallardo and Reynaldo Cabrera Gaurano
walking from Dawis to Dagocdoc to attend a dance. The dance
not having began being too early yet, they decided to go back
to Dawis. On their way back while crossing the Tandag bridge
across the Tandag river, the accused Pedro Ravelo, Jerry
Ravelo, Josen Ravelo, Bonifacio Padilla, Romeo Aspirin,
Hermie Pahit and Nicolas Guadalupe stopped them by pointing
their guns. He and Diego Gallardo ran away towards a group of
old junk tractors and hid there. He saw Reynaldo Gaurano
chased by all the accused. He saw Reynaldo Gaurano ran up to
the house of a certain Fernando Cortes which was just opposite
the tractors they were hiding, and which was just across the
road in front of the house of Fernando Cortes. Reynaldo
Gaurano was caught up in the house by Jerry Ravelo, Bonifacio
Padilla and Nicolas Guadalupe. He saw Reynaldo Gaurano
forced and dragged down to a waiting pick-up on the road by
Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe.
Reynaldo Gaurano was loaded on the pick-up owned and
driven by the accused Pedro Ravelo. All the accused, together
with Reynaldo Gaurano rode on the pick-up towards the
Tandag airport at Awasian. After Reynaldo Gaurano
disappeared, he and Diego Gallardo went to the police and
reported the matter that Reynaldo Gaurano was brought by the
accused to the airport.
On May 23, 1984, he was with the group who exhumed the body
of Reynaldo Gaurano under a mango tree near the Tandag
airport and pointed to the investigator that that was the body of
Reynaldo Gaurano with blisters, without ear and a big wound
on the neck. Placed on the mat the cadaver was brought to the
Mata Funeral Parlor at Tandag, Surigao del Sur in that morning
of May 23, 1984.
Witness Francisco Villasis, 48 years old, farmer and resident of
Awasian, testified that he knew very well all the accused and
that he personally saw them in the early dawn of May 22, 1984.
He declared that he was at the Awasian creek near a mango
tree catching crabs with the use of a "panggal", a bamboo
knitted trap. From a distance of around twenty meters away, he
saw a man hanging from the mango tree over a fire. He saw the
accused Jerry Ravelo placed fire on the hanging person and
the accused Romeo Aspirin placed a burning torch made of
308
dried coconut leaves at the back of the hanging person. The
man hanging was not known to him. The man hanged was also
surrounded by Pedro Ravelo, Josen Ravelo, Nicolas
Guadalupe, Hermie Pahit and Bonifacio Padilla. For five
minutes watching, he saw the clothing and body burned, he
heard the moanings of the person and heard the laughters of
the accused. After witnessing that horrible incident he went
home hurriedly. On cross examination he further stated that he
saw for the first time the man already hanging under a fire (sic).
Witness Joey Lugatiman, 22 years old and resident of Dawis,
Tandag, testifies that all the accused are known to him for a
long time. On May 21, 1984, with ten companions they went to a
place in the interior called Maticdum, Tandag, Surigao del Sur.
After five hours stay, he, together with his companions left
Maticdum past midnight for Tandag on a loggingtruck. As soon
as they passed by the airport, they were stopped by the
accused and were told to go down from the truck for
questioning. He was brought to the house of the accused Pedro
Ravelo near the checkpoint. He was asked if he was Joey
Lugatiman and if he knew Reynaldo Gaurano. There at the
headquarters, he was asked if he was an NPA. For almost an
hour stay at the headquarters he was boxed, kicked and
manhandled by Pedro Ravelo and by the other accused with the
use of their guns until he became almost unconscious. Then,
from the headquarters at Mabua on that early dawn he was
brought again back in the same pick-up to Awasian airport, to
the house of Pedro Ravelo and then to the house of Bonifacio
Padilla. Before proceeding to the house of Bonifacio Padilla, he
saw his friend Reynaldo Gaurano, one meter away, already
weak with bruises on his face, hands tied at the back and with a
gag around the mouth, moving as if in the act of trying to free
himself, with a bleeding mouth. When he reached the house of
Bonifacio Padilla, he was chained and tied to the wall near the
window of the house. Alone, he peeped through the window
and saw Reynaldo Gaurano hanging up the mango tree with fire
below him. He heard the moanings of Reynaldo Gaurano while
hanging from the mango tree thirty meters away from the
window of the house of Bonifacio Padilla. He saw Pedro Ravelo
and Josen Ravelo set fire on the body of Reynaldo Gaurano. At
5:00 o'clock a.m. May 22, 1984, when alone, after being told that
he would be killed at 9:00 o'clock in the evening at the Awasian
bridge, he escaped by being able to untie himself at 10:00
o'clock in the morning of May 22, 1984. He reported what
happened to him and to Reynaldo Gaurano, to his parents and
then to the police authorities and later submitted for physical
examination on that day, May 22, 1984 and finally was
investigated on May 23, 1984 in connection with this case. On
cross examination he said that he knew all the accused. He
knew that all the accused are members of the CHDF.
Witness Zosima Gaurano, 46 years old, market vendor, a native
of Tandag, testified that she is the mother of Reynaldo
Gaurano. Her son Reynaldo Gaurano left Cebu City on April 12,
1984 for Tandag. On May 22, 1984 she received a telegram from
her sister Remedios Fernandez that her son Reynaldo is dead.
She left for Tandag upon receipt of the telegram and arrived at
Tandag on May 24, 1984. Upon her arrival she went to the Mata
Funeral Parlor and then she found the dead body of her son
Reynaldo Gaurano inside the coffin and she saw many parts of
the body of her son with burns. She suffered moral damages
and other expenses to the tune of P64,350.00.
Witness Remedios Cabrera Fernandez, widow, meat vendor and
resident of Tandag testified that Reynaldo Gaurano is her
nephew because his mother Zosima is her younger sister. Her
nephew Reynaldo Gaurano was here in Tandag on vacation. On
May 20, 1984, with two companions, Diego Gallardo and
Edilberto Salazar, he failed to go home to the house of her
sister. After the second day, May 22, 1984 at around 5:00
o'clock in the afternoon Edilberto Salazar and Diego Gallardo
informed her that Reynaldo Gaurano was kidnapped by Pedro
Ravelo and his men. The message was relayed to her to Atty.
Buenaflor and to Col. Jesus Hermosa. On the following day,
May 23, 1984, Col. Hermosa, with other officers inspected the
house of Pedro Ravelo and the nearby surroundings at
Awasian. She was made to Identify an exhumed body at the
back of the house of Pedro Ravelo near the Mango tree. She
saw the dead body of her nephew Reynaldo Gaurano without
an ear, the neck was almost cut, entire body with blisters, and
naked. His body was pictured and later on brought to the Mata
Funeral Parlor at Tandag. She requested Dr. Romeo delos
Reyes of the Tandag Provincial Hospital to conduct an autopsy
and after which the dead body of Reynaldo Gaurano was
embalmed to await the arrival of the mother from Cebu City.
Witness Dr. Romeo delos Reyes, a senior Resident physician of
the Tandag Provincial Hospital testified that he conducted an
autopsy on the dead body of a certain Reynaldo Gaurano,
Exhibit "A", at the Mata Funeral Parlor. He found blisters
formation caused by fire burns throughout; the body was
reddish and skin peels off easily; swollen face, hematoma,
309
contusion, losing of hair, wound around the neck; and these
injuries could have been inflicted 36 to 48 hours before the
autopsy. Death certificate, Exhibit "B" was issued. The burns
and the injuries above stated were suffered before Reynaldo
Gaurano died.
Witness Roberto Awa, a photographer of the Similar Studio
who, for fifteen years, is a photographer at Tandag, testified
that he took the pictures of a dead man inside a hole upon
orders of Col. Hermosa at Awasian near the airport. He took
pictures as shown in Exhibit "C", "C-1"; he took 8 positions of
the dead body. While yet inside the holeexhibit "D" and as
shown in Exhibit "E" and "F", that was the dead body of
Reynaldo Gaurano near the mango tree; Exhibit "G", while the
cadaver was inside the hole and Exhibit "H" is the picture while
the body was lying on the mat.
Witness Cresenciano Rulona, Police Investigator of the Tandag
Police Force, testified that at around 8:00 o'clock in the
morning of May 23, 1984, he was the assistant team leader of
the group that proceeded to Tambacan, Awasian, Tandag to
look for and inspect the place where a certain Reynaldo
Gaurano was kidnapped. Under a mango tree and about 25
meters near the house of Bonifacio Padilla the group recovered
a P.25 coin, a small comb, two zippers and burned pieces
ofcloth and burned coconut leaves, together with new
excavated soil. Further search under the mango tree led to the
very place where the body of Reynaldo Gaurano was buried. At
around 10:00 o'clock a.m., May 23, 1984, they exhumed the
dead body which was buried under a depth of around one
meter under the mango tree which was around 25 meters from
the house of Bonifacio Padilla and around 150 meters from the
house of Pedro Ravelo. The cadaver was first Identified to be
that of Reynaldo Gaurano by Edilberto Salazar. A photographer
was called and pictures were taken of the dead body of
Reynaldo Gaurano from the hole and then the body was
brought to the surface and placed on the mat. Not one of the
accused was present during the period while the group was
searching and exhuming the body of Reynaldo Gaurano. The
body of Reynaldo Gaurano shows signs of burns and several
injuries, and was finally brought to the funeral parlor at Tandag.
As shown by the evidence, Reynaldo Cabrera Gaurano died on
May 22, 1984 at Awasian, Tandag, Surigao del Sur. His death
was the result of the shock secondary to the wound around the
neck, Exhibit "A", and occurred while he was hanged by the
 accused with hands tied to a branch of a mango tree.
Sufferings of pains, through his moanings, were augmented
and aggravated by the tortures inflicted as vividly seen through
the removal of the right ear, the wound around the neck and
placing of fires on his body, and the fire below his feet. Not only
were these acts brutal and cruel but also heartless and savage
acts of the accused, devoid of an iota of sympathy, who,
instead, were happy and delighted to see the miseries suffered
by their victim. Further, it was shown that they helped one
another or conspired with one another in torturing with the use
of their firearms, and in killing Reynaldo Gaurano. (Rollo, pp.
10-16)
Meanwhile, the prosecution evidence in Criminal Case No. 1194 are as
follows:
The evidence of the prosecution consisted of the testimonies of
the witnesses and the Medical Certificate. Witness Joey
Lugatiman, 22 years old, resident of Dawis, Tandag, Surigao del
Sur testified that he personally knew all the accused for quite a
long time. On May 21, 1984 with ten companions he went to a
place called Maticdom, Tandag, Surigao del Sur. After staying
at Maticdum for five hours he went home on board on a cargo
truck. On the way near the Tandag Airport they were stopped
by all the accused. They, including himself, were ordered by the
accused Pedro Ravelo to come down from the truck. Then he
was brought to the nearby house of Pedro Ravelo and there he
was asked if he was Joey Lugatiman and if he knows Reynaldo
Gaurano.
His companions were ordered to proceed to Tandag while he
was loaded on a service pick up driven by the accused Pedro
Ravelo. He was brought by all the accused to the Headquarters
of the Airborne Company at Mabua, Tandag, Surigao del Sur. In
the Headquarters of the Airborne, he was interrogated if he was
an NPA. After hearing his denial of being an NPA he was boxed,
kicked and pistol whipped by the accused Pedro Ravelo and his
co-accused. He was manhandled by the accused with the use
of the firearms for almost an hour. Later he was brought back
again to Awasian Airport to the house of Pedro Ravell (should
be Ravelo) then to the house of Bonifacio Padilla. But before
proceeding to the house of Bonifacio Padilla, he saw his friend
Reynaldo Gaurano one meter away, already weak with bruises
on the face, hands, tied at the back and gagged around the
mouth. Reynaldo Gaurano could not talk and he was moving in
the act to free himself and with a bleeding mouth. Upon arriving
310
in the house of Bonifacio Padilla he was chained and hogtied
near the open window by the companions of Pedro Ravelo. Not
long after, through the window, he saw Reynaldo Gaurano
hanging up the mango tree and a big fire was set on the
ground. He heard the groaning and moaning of Reynaldo
Gaurano. He saw Pedro Ravelo and Jerry Ravelo setting fire on
the right and left side of Reynaldo Gaurano with the use of
dried coconut leaves. He saw all the accused surrounding and
watching the hanging and burning of Reynaldo Gaurano. It was
Pedro Ravelo who cut the right ear and who also slashed the
neck of Reynaldo Gaurano. He could not shout because he was
afraid. While lying down after he saw the horrible incident he
fell asleep. At around 5:00 o'clock in the morning of May 22,
1984 he awoke and saw Bonifacio Padilla bringing nylon line
with which he was tied to a piece of wood; while Nicolas
Gaudalupe gagged him, and he was blind folded by Hermie
Pahit. While the three were about to leave him behind, he heard
them saying that they will kill him at the Awasian bridge at 9:00
o'clock in the evening of May 22, 1984. When he was left alone
in that house he successfully freed himself. He jumped out of
the window and escaped via the nipa palm grove. As
consequences of the manhandling of the accused, he suffered
several bruises on the breast, at the back and his mouth. He
was physically examined by a doctor in the Provincial Hospital
on that day, Exhibit "A", "A-1" and "A-2" which is Exhibit "1"
and "2", "1-A", and "1-B" for the defense. On cross
examination, he testified that he escaped at around 10:00
o'clock in the morning from the house of Bonifacio Padilla, and
that he knew all the accused to be members of the Civilian
Home Defense Force (CHDF). He testified that the house of
Pedro Ravelo and the house of Bonifacio Padilla is around one
hundred (100) meters away from each other.
Witness Dr. Petronila Montero testified that she is a resident
physician of the Provincial Hospital, and on May 22, 1984 she
examined Joey Lugatiman and she issued a medical certificate,
Exhibit "A". All her findings were placed down in Exhibit "A".
Upon being cross-examined, she testified that the hematomas,
small abrasions will not cause death. When she examined Joey
Lugatiman, she found that he was weak and haggard caused by
the injuries mentioned in Exhibit "A".
Witness Emilio Espinoza, 68 years old, farmer, resident of
Awasian, Tandag testified that while he was tendering his
carabao near the house of Bonifacio Padilla he was surprised
to see Joey Lugatiman, wearing blue t-shirt and a jogging pants
 jumped out of the window of the house of Bonifacio Padilla,
twelve meters away from him. He saw Joey Lugatiman ran
towards the nipa palm then ran towards the airport. He knew
Joey Lugatiman because during the barrio fiesta Joey used to
stay in his house at Awasian.
Witness Bernardo Frias, 21 years old, farmer and resident of
Awasian, testified that on May 22, 1984 he was in Maticdom
together with Joey Lugatiman, Miguel, Gregorio Urbiztondo,
Leonildo Naragas, Jesus Espinoza, Mauricio Estoya, the driver
and a helper from 5:00 o'clock in the afternoon and started to
go home at around 11:00 o'clock p.m. for Tandag. On the way,
near the airport, he, together with his companions on a logging
truck was stopped by the accused Pedro Ravelo, Jerry Ravelo,
Josen Ravelo, Hermie Pahit, Bonifacio Padilla, Romeo Aspirin
and Nicolas Guadalupe. They were ordered to come down and
were made to identify each other. He saw Bonifacio Padilla
dragged Joey Lugatiman to the house of Pedro Ravelo. It was
Pedro Ravelo who later brought Joey Lugatiman to the pick-up.
They were ordered to board on the truck except Joey
Lugatiman who loaded in the pick-up driven by Pedro Ravelo.
Then, the accused Bonifacio Padilla ordered the group to
proceed to Tandag while Joey Lugatiman was left behind. He
reported to the police authorities that his companion Joey
Lugatiman was being held under arrest at Awasian and that he
knows all the accused before this incident. (Rollo, pp. 21-24)
The accused-appellants were not able to or did not present evidence
on their behalf, nor were they themselves able to confront the
prosecution witnesses who testified against them except through a
counsel de oficio appointed by the trial judge to represent them
namely, Atty. Pretextato Montenegro and Atty. Florito Cuartero, in
place of their defense counsel, Atty. Eliseo Cruz.
The continued absence of Atty. Cruz, a Quezon City-based lawyer who
perennially made requests for postponements by telegrams stating his
inability to appear for health reasons, led to the refusal by the
accused-appellants to be present at the trial. The accused-appellants
alleged that Atty. Cruz left an instruction that they will not submit
themselves to trial without him.
The accused-appellants now maintain that they did not "waive" their
right to be present during the trial because their refusal was not done
by their own free will but only in accordance with their lawyer's
instructions.
311
The Court notes that Atty. Cruz resorted to several other delaying
tactics aside from sending telegraphic notes requesting for
postponements. He filed a petition for change of place of detention and
venue for trial before this Court, which denied it; a first petition for
habeas corpus on the ground that they should be tried by a military
tribunal, which petition was denied; and a motion for new trial on the
ground of lack of due process due to improper waiver of presence at
the trial. This motion for new trial was granted to give the accused-
appellants a last chance to be heard and be present. Still, the defense
counsel failed to appear and so did the appellants.
In their second petition for habeas corpus which we now treat as an
appeal, Atty. Cruz failed to file the required brief. The Court then
appointed a new counsel de oficio for the accused-appellants.
Accused-appellants raised the following alleged errors of the trial
court:
I
THE LOWER COURT'S FINDING THAT ACCUSED-APPELLANTS
ARE GUILTY OF FRUSTRATED MURDER HAS NO BASIS IN
FACT AND IN LAW.
II
THE LOWER COURT ERRED IN CONCLUDING THAT
ACCUSED-APPELLANTS WAIVED THEIR RIGHTS TO BE
PRESENT DURING THE TRIALS AND TO PRESENT EVIDENCE
TO PROVE THEIR INNOCENCE (Brief for Appellants, pp. 10-11;
Rollo, p. 144)
It is contended that there can be no frustrated murder committed in
Criminal Case No. 1194 absent any proof of intent to kill, which is an
essential element of the offense of frustrated murder.
Appellants aver that the trial court erroneously based its conclusion
on the fact that when Lugatiman was tied and gagged, the latter heard
one of the accused-appellants utter that they would kill him at
Awasianbridge.
The trial court made the following inference which we find to be
erroneous:
 To this Court the real intention to kill Joey Lugatiman was made
manifest at 5:00 in the morning of May 22, 1984 when the
accused Bonifacio Padilla together with Hermie Pahit and
Nicolas Guadalupe tied his hands to the wall with a nylon line
and gagged him; and when the accused said they will kill him
(Joey Lugatiman) at 9:00 o'clock p.m. at Awasian bridge. These
final and parting words uttered to Joey Lugatiman eloquently
expressed intent to kill. Killing, however, was not consummated
because Joey Lugatiman was able to escape at around 10:00
o'clock in the morning of May 22, 1984. (Rollo, p. 25)
The facts and evidence on record do not show anything from which
intent to kill could be deduced to warrant a conviction for frustrated
murder. A mere statement by the accused stating that Lugatiman
would be killed is not sufficient proof of intent to kill to convict a
person of frustrated murder.
In a crime of murder or an attempt or frustration thereof, the offender
must have the intent or the actual design to kill (US v. Burns, 41 Phil.
418 [1921]) which must be manifested by external acts. For there to be
frustrated murder, the offender must perform all the acts of execution
that would produce the felony as a consequence, but the felony is not
thereby produced by reason of causes independent of the will of the
perpetrator. A verbal expression that Lugatiman would be killed
sixteen (16) hours after such statement was made is not sufficient to
show an actual design to perpetrate the act. Intent must be shown not
only by a statement by the aggressor of the purpose to kill, but also by
the execution of all acts and the use of means necessary to deliver a
fatal blow while the victim is not placed in a position to defend himself.
However, after the performance of the last act necessary, or after the
subjective phase of the criminal act was passed, the crime is not
produced by reason of forces outside of the will of the aggressor.
(People v. Borinaga, 55 Phil., 433 [1930]).
Tying the victim's left leg with a chain on a 2" by 3" piece of wood and
leaving him inside the house of accused-appellant, Bonifacio Padilla
are not acts that would result in death. These were done only to
restrain his liberty of movement for the period of time the accused-
appellants were busy hanging and burning the body of Reynaldo
Gaurano some thirty (30) meters away from where Lugatiman was left.
Also, tying Lugatiman's hands behind his back and his whole body to
the wall, and blindfolding him were for the purpose of restraining his
liberty until the evening of May 22, 1984 came.
Accused-appellants also maintain that the injuries sustained by
Lugatiman from the manhandling at the Headquarters of the Airborne
312
Company were not fatal as stated by the prosecution's expert witness,
Dr. Petronila Montero; hence, there can be no frustrated murder. This
is supported by the records (Exhibit "A-2", Records of Criminal Case
No. 1194, p. 21; TSN, June 4, 1985, pp. 24-26) Lugatiman did not lose
consciousness as a result of the blows he sustained (TSN, May 31,
1985, p. 49, Record, p. 115)
It is worthy to note that the trial court, in concluding the existence of
frustrated murder, did not even use as its basis, the manhandling of
Lugatiman. The trial court in fact concedes that the real purpose of the
manhandling or torture was to have Lugatiman admit and confess his
being a member of the New People's Army (NPA) and the activities of
the NPA's. It was the statement made by the accused-appellant
NicolasGuadalupe that Lugatiman would later be killed, that was the
basis of the court for inferring the commission of frustrated murder.
According to the trial court, murder was not committed because of the
timely escape. Escape from the aggressors cannot establish frustrated
murder without first showing that the aggressors intended to kill and
that they really attacked the victim.
Under the circumstances, accused-appellants could not even be
convicted of an attempt to commit murder. There was no
commencement of the criminal act by over acts which have a direct
connection with the crime of murder intended to be committed. As
stated earlier the manhandling, express statement of purpose, and the
restraint of liberty were not such as to put the victim in danger of an
imminent death. The small abrasions and hematomas of the victim
resulting from the torture by the accused were not mortal. After the
victim was restrained of his liberty immediately before Gaurano was
killed, he was able to watch how Gaurano was burned hanging upside
down from a mango tree near the Awasian bridge. Due to his fatigue
and extreme weakness, he was even able to lie down and sleep after
looking at the horrible incident. (TSN, May 31, 1985, pp. 22-23)
During the long period of time Lugatiman was informed that "he would
be killed" and was left behind (5:00 in the morning) until he was able to
escape at 10:00 in the morning, it was not certain whether or not
appellants would really kill him as they did to Gaurano. Anything could
have happened in between. There was no distinct evidence to prove
that the accused appellants were really decided on killing him at the
time specified.
The records show that Lugatiman himself was not sure that the
accused-appellants would pursue it.
The uncertainty can be seen from Lugatiman's testimony on cross-
examination, thus:
xxx xxx xxx
Q. Why did you say a while ago that "I will be the next
one to be hung and to be killed by Ravelo and his
group"?
A. I was just afraid that I will be the next.
Q. Now, when you saw these persons burning the body
of Reynaldo, did you hear also what the people around
Reynaldo were talking of?
A. What I heard was their laughing and the moaning.
Q. And you heard their laughing?
A. Yes.
Q. Why did you know that they were laughing?
A. Because I heard it.
Q. Their appearance you can see?
A. Their appearance is clear because there is a big light.
Q. And your name was never mentioned that you will be
the next to be hung?
A. I did not hear them saying.
Q. There were also no other people like you who were
apprehended or being detained by Pedro Ravelo and his
group?
A. I did not see.
Q. You only saw Reynaldo Gaurano, including yourself
detained by Ravelo and his group on May 21, in the early
morning rather, on May 22, 1984 dawn?
313
A. Yes. (TSN, May 31, 1985, pp. 54-55)
After a review of the allegations of the information in Criminal
Case No. 1194 and the evidence received and admitted by the
court a quo, the Court is of the view that accused-appellants
are not guilty of frustrated murder but only the crime of slight
physical injuries. There is evidence to show that the several
small abrasions on the chest, right neck and right ankle of
Lugatiman as well as the hematoma at his back was due to the
hitting by a rough, hard object like a butt of a gun. The
prosecution witness, Dr. Montero testified that the injuries were
inflicted by some other persons aside from the victim, and
needed medical treatment of four (4) to five (5) days to avoid
infection. (TSN, June 4, 1985, pp. 21-26)
Accused-appellants aver that there was no deliberate waiver on
their part of their right to be present at the scheduled hearing
dates because they "did not appear to know the import of their
decision not to appear in the trials." According to them, the
judge should have explained to them the meaning and the
consequences of their decision not to appear.
The issue of due process had been fully considered by this
Court when we acted on the habeas corpus petition. In our May
8, 1988 resolution, we outlined in detail the reasons for our
finding of dilatory tactics on the part of the petitioners and their
counsel and why the lower court correctly proceeded with trial.
After stating the various incidents characterizing the initial
proceedings and the trial of the case, we stated:
xxx xxx xxx
The petitioners are members of the Civilian Home
Defense Force (CHDF) who have been convicted of
murder and frustrated murder committed under
particularly brutal circumstances. A notice of appeal
was filed thirty-nine (39) days from the promulgation of
judgment and was clearly out of time. A motion for new
trial was also characterized by plainly dilatory tactics in
its handling.
Were it not for the effectivity of the present Constitution,
there is a likelihood that the petitioners would have been
sentenced to capital punishment. The near-capital
 nature of the crimes for which the petitioners were
convicted and the rather unusual circumstances
surrounding the trial of the two cases and the failure to
appeal, however, call for a closer look at the judgments
of conviction. This can best be done by calling for all the
records of the case including the transcripts of
stenographic notes. If, after the consideration of the
cases as appealed cases, there appears to have been a
miscarriage of justice or a need for further evidence, the
case can always be remanded for further proceedings
as instructed. Otherwise, the judgment will have to be
affirmed or reversed on the basis of all the present
records. (Rollo, p. 73)
For purposes of this decision, we emphasize that in the
morning of May 30, 1985, the date of the first day of the trial
proper, or after five (5) postponements, the accused-appellants
came to court without their counsel of record, Atty. Eliseo Cruz.
Atty. Cruz allegedly sent a telegram through one Mrs. Delfina
Cruz indicating that he met a vehicular accident and requesting
a resetting of the hearing date. The several instances in which
the Court received similar telegrams including one where he
claimed a "very sick heart ailment" led the trial court to doubt
and disregard the last request of the defense. The court had
earlier categorically stated that it wouldentertain no further
requests for postponement.
The court, in deciding to push through with the trial at 2:00 in
the afternoon of May 30, 1988 and in appointing two (2)
counsels de oficio for the accused-appellants did not only
consider the right of the accused to speedy trial which should
not be abused by the defense by willful delays, but more so, the
rights of public justice. (Mercado v. Santos, 66 Phil. 215 [1938]).
Despite their new counsels who appeared to be doing their
best, the accused-appellants insisted on absenting themselves
stating that they cannot and would not appear without Atty.
Cruz and allegedly for fear that they would be harassed by
members of the New People's Army. At this point, the Court
informed them of (1) the importance of the appointment of
competent counsels de oficio considering the gravity of the
offense and the difficulty of the questions that may arise during
the trial; and (2) the fact that there is no legal obstacle to
proceeding with the reception of prosecution evidence in their
absence.
314
Absence at the trial did not deprive the accused-appellants of
cross-examination except the right to personally confront the
prosecution witnesses face to face. Notwithstanding their
absence, they were represented by the counsels de oficio who
took turns in cross-examining each of the prosecution
witnesses.
Accused-appellants also maintain that they did not actually
refuse to present evidence on their behalf. They argued that the
counsels de oficio misapprehended a telegram of Atty. Cruz
which stated that he (Atty. Cruz) cannot attend the June 20 and
21, 1985 trial because he had a prior engagement in another
court in Ilocos Sur on those dates. They also contend that their
failure to appear and present evidence was "simply because of
their misplaced trust and obedience to the instructions of their
counsel, Atty. Eliseo Cruz, whose negligence and lack of
vigilance in the handling of the cases, despite the seriousness
of the crimes charged, had caused injustice to the accused-
appellants." They ask this Court to take their case as an
exception to the rule that a client shall suffer the consequences
of negligence or incompetence of his counsel.
The actual desire of the accused-appellants to testify and
present other evidence is not manifest from a thorough review
of the records of the case. If it were true that they wanted to
present evidence, they should have taken advantage of the
opportunity to be present, to be heard and to testify in open
court with the assistance of their appointed lawyers. As a
matter of fact, they were able to convince the lower court to
grant them a chance to have a new trial. However, they still
failed to make use of their last opportunity. They cannot now
claim that they were denied their right to be present and to
present evidence. This Court upholds the lower court's position
that the accused-appellants were given more than generous
time and opportunity to exercise their constitutional rights
which should not be overemphasized at the expense of public
policy.
The circumstances of the case do not preclude the application
of the rule that a client is bound by the acts of his counsel who
represents him. Nevertheless, at the time when the lower court
appointed the de oficio counsels, the court already had ample
notice of the futility of waiting for Atty. Cruz to come and
appear for the defense. From the time the accused-appellants
were represented by Atty. Montenegro and Atty. Cuartero, their
 decision not to attend the trial nor to present evidence is clearly
a product of their own free will.
WHEREFORE, the appealed judgments in Criminal Cases Nos.
1187 and 1194 are hereby, respectively, affirmed and modified
as to the crime proven. The accused-appellants PEDRO
RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN,
NICOLAS GUADALUPE and HERMIE PAHIT are hereby
sentenced:
(1) To serve the penalty of reclusion perpetua and to pay the
increased indemnity of FIFTY THOUSAND PESOS (P50,000.00)
in Criminal Case No. 1187 solidarily; and
(2) To serve the penalty of arresto menor in Criminal Case No.
1194.
SO ORDERED.
Fernan, C.J., (Chairman), Feliciano, Bidin and Davide, Jr., JJ.,
concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-39303-39305 March 17, 1934
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffs-appellee,
vs.
FELIPE KALALO, ET AL., defendants.
FELIPE KALALO, MARCELO KALALO, JUAN KALALO, and GREGORIO
RAMOS, appellants.
Meynardo M. Farol and Feliciano Gomez for appellants.
Acting Solicitor-General Peña for appellee.
DIAZ, J.:
On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo,
Juan Kalalo, and Gregorio Ramos, were tried in the Court of First Instance
of Batangas jointly with Alejandro Garcia, Fausta Abrenica and Alipia
315
Abrenica in criminal cases Nos. 6858, 6859 and 6860, the first two for
murder, and the last for frustrated murder. Upon agreement of the parties
said three cases were tried together and after the presentation of their
respective evidence, the said court acquitted Alejandro Garcia, Fausta
Abrenica and Alipia Abrenica, and sentenced the appellants as follows:
In case No. 6858, for the alleged murder of Marcelino Panaligan, to
seventeen years, four months and one day of reclusion temporal, with the
corresponding accessory penalties, and to indemnify the heirs of the said
deceased Marcelino Panaligan in the sum of P1,000, with the costs.
In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen
years, four months and one day of reclusion temporal, with the
corresponding accessory penalties, and to indemnify the heirs of the
aforesaid victim, the deceased Arcadio Holgado, in the sum of P1,000, with
the costs.
In the third case, that is, No. 6860, wherein the court a quo held that the
crime committed was simply that of discharge of firearm, not frustrated
murder, the appellant Marcelo Kalalo was sentenced to one year, eight
months and twenty-one days of prision correccional and to pay the
proportionate part of the costs of the proceedings. Felipe Kalalo and Juan
Kalalo, as well as their co-accused Fausta and Alipia Abrenica, Gregorio
Ramos and Alejandro Garcia, were acquitted of the charges therein.
The accused in the aforesaid three cases appealed from their respective
sentences assigning six alleged errors as committed by the trial court, all of
which may be discussed jointly in view of the fact that they raise only one
question, to wit: whether or not said sentences are in accordance with law.
A careful study and examination of the evidence presented disclose the
following facts: Prior to October 1, 1932, the date of the commission of the
three crimes alleged in the three informations which gave rise to the
aforesaid three cases Nos. 6858, 6859 and 6860, the appellant Marcelo
Kalalo or Calalo and Isabela Holgado or Olgado, the latter being the sister of
the deceased Arcadio Holgado and a cousin of the other deceased
Marcelino Panaligan, had a litigation over a parcel of land situated in the
barrio of Calumpang of the municipality of San Luis, Province of Batangas.
On September 28, 1931, and again on December 8th of the same year,
Marcelo Kalalo filed a complaint against the said woman in the Court of First
Instance of Batangas. By virtue of a motion filed by his opponent Isabela
Holgado, his first complaint was dismissed on December 7, 1931, and his
second complaint was likewise dismissed on February 5, 1932. Marcelo
Kalalo cultivated the land in question during the agricultural years 1931 and
1932, but when harvest time came Isabela Holgado reaped all that had
been planted thereon.
On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one
of the deceased, decided to order the aforesaid land plowed, and employed
several laborers for that purpose. These men, together with Arcadio
Holgado, went to the said land early that day, but Marcelo Kalalo, who had
been informed thereof, proceeded to the place accompanied by his brothers
Felipe and Juan Kalalo, his brother-in-law Gregorio Ramos and by Alejandro
Garcia, who were later followed by Fausta Abrenica and Alipia Abrenica,
mother and aunt, respectively, of the first three.
The first five were all armed with bolos. Upon their arrival at the said land,
they ordered those who were plowing it by request of Isabela and Arcadio
Holgado, to stop, which they did in view of the threatening attitude of those
who gave them said order. 1ªvv phi1.ne+
Shortly after nine o'clock on the morning of the same day, Isabela Holgado,
Maria Gutierrez and Hilarion Holgado arrived at the place with food for the
laborers. Before the men resumed their work, they were given their food and
not long after they had finished eating, Marcelino Panaligan, cousin of said
Isabela and Arcadio, likewise arrived. Having been informed of the cause of
the suspension of the work, Marcelino Panaligan ordered said Arcadio and
the other laborers to again hitch their respective carabaos to continue the
work already began. At this juncture, the appellant Marcelo Kalalo
approached Arcadio, while the appellants Felipe Kalalo, Juan Kalalo and
Gregorio Ramos, in turn, approached Marcelino Panaligan. At a remark
from Fausta Abrenica, mother of the Kalalos, about as follows, "what is
detaining you?" they all simultaneously struck with their bolos, the appellant
Marcelo Kalalo slashing Arcadio Holgado, while the appellants Felipe
Kalalo, Juan Kalalo and Gregorio Ramos slashed Marcelino Panaligan,
inflicting upon them the wounds enumerated and described in the medical
certificates Exhibits I and H. Arcadio Holgado and Marcelino Panaligan died
instantly from the wounds received by them in the presence of Isabela
Holgado and Maria Gutierrez, not to mention the accused. The plowmen
hired by Arcadio and Isabela all ran away.
Arcadio Holgado's body bore the following six wounds, to wit:
1. A cut wound on the ulnar side of right arm near the wrist, cutting
the ulnar bone completely and, the radius partially.
2. A cut wound on the anterior upper portion of the left arm
measuring about 7 cm. long and 5 cm. wide extending to the bone
and cutting the deltoid muscle across.
316
3. A penetrating wound on the left chest just below the clavicle going
thru the first intercostal space measuring about 8 cm. long and 2 cm
wide.
4. A wound on the left side of the back about 20 cm. long following
the 10th intercostal space and injuring the lung, diaphragm, stomach
and large intestine.
5. A small superficial cut wound about 2 cm. long and ½ cm. wide
situated on the inner side of the right scapula.
6. A superficial wound barely cutting the skin, about 4 cm. long in the
lumbar region just to the right of the spinal column. (Exhibit I.)
Marcelino Panaligan's body, in turn, bore the following fourteen wounds, to
wit:
1. A penetrating cut wound in the epigastric region of the abdomen
measuring about 7 cm. long and 3 cm. wide cutting the omentum
and injuring the lower portion of the stomach and a portion of the
transverse colon, but no actual perforation of either one of the two
organs.
2. A cut wound on the head just above the forehead about 6 cm.
long and 4 cm. wide lifting a portion of scalp as a flap.
3. A cut wound on the left side of the head measuring about 7 cm.
long and 2 cm. wide.
4. A cut wound about 12 cm. long across the face just below the
eyes extending from one cheek bone to the other, perforating the left
antrum and cutting the nasal bone.
5. A cut wound on the anterior portion of the left forearm extending
to the bone with a flap of skin and muscle which measures about 12
cm long and 6 cm. wide.
6. A cut wound across the dorsal side of the right hand about 5 cm.
long and 2 cm. wide cutting the bones of the hand.
7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm.
deep situated in the left axilla.
 8. A cut wound about 6 cm. long and 2 cm. wide situated over the
left scapula.
9. A cut wound on the right shoulder about 6 cm. long passing near
the inner angle of the scapula cutting the muscles of the shoulder.
10. A cut wound about 7 cm. long and 3 cm. wide situated near and
almost parallel to the inner border of the right scapula.
11. A wound on the back of the head, oval in shape, about 10 cm.
long and 5 cm. wide from which a flap of scalp was removed.
12. A wound across the back and left side of the neck about 12 cm.
long and 7 cm. deep cutting the vertebral column together with the
great arteries and veins on the left side of the neck.
13. A wound about 15 cm. long and 4 cm. wide on the left side of the
back.
14. A small wound on the left thumb from which a portion of the
bone and other tissues were removed. (Exhibit H.)
The above detailed description of the wounds just enumerated discloses —
and there is nothing of record to contradict it all of them were caused by a
sharp instrument or instruments.
After Arcadio Holgado and Marcelino Panaligan had fallen to the ground
dead, the appellant Marcelo Kalalo took from its holster on the belt of
Panaligans' body, the revolver which the deceased carried, and fired four
shots at Hilarion Holgado who was then fleeing from the scene inorder to
save his own life.
The appellants attempted to prove that the fight, which resulted in the death
of the two deceased, was provoked by Marcelino Panaligan who fired a shot
at Marcelo Kalalo upon seeing the latter's determination to prevent Arcadio
Holgado and his men from plowing the land in question. No such firing,
however, can be taken into consideration, in the first place, because of the
existence of competent evidence such as the testimony of Maria Gutierrez,
who is a disinterested witness, which corroborates that of Isabela Holgado
in all its details, showing that the said deceased was already lying prostrate
and lifeless on the ground when the appellant Marcelo Kalalo approached
him to take his revolver for the purpose of using it, as he in fact did, against
Hilarion Holgado; in the second place, because the assault and aggression
of the said appellant were not directed against said Marcelino Panaligan but
exclusively against Arcadio Holgado, the evidence of record on this point
317
being overwhelming, and if his claim were true, he naturally should have
directed his attack at the person who openly made an attempt against his
life; in the third place, because the evidence shows without question that
Panaligan was an expert shot with a revolver, and among the eight wounds
that the appellant Marcelo Kalalo received (Exhibit 3), not one appears to
have been caused by bullet, and similarly, none of the other appellants
received any wound that might, in any way, suggest the possibility of having
been caused by bullet; and finally, because the fact that he and his co-
appellants, together with those who had been charged jointly with them, had
gone to the place of the crime armed with bolos, determined at any cost to
prevent the Holgados from plowing the land in dispute, cannot but disclose
not only their determination to resort to violence or something worse, but
that they did not need any provocation in order to carry out their intent.
They likewise attempted to prove that the appellant Marcelo Kalalo alone
fought against the deceased Marcelino Panaligan and Arcadio Holgado and
inflicted upon them the wounds which resulted in their death, said appellant
testifying that he was compelled to do so in defense of his own life because
both of the deceased attacked him first, the former with a revolver, firing
three shots at him, and the latter with a bolo. For the same reasons
hereinbefore stated, such defense of the appellants cannot be given credit.
One man alone could not have inflicted on the two deceased their multiple
wounds, particularly when it is borne in mind that one of them was better
armed, because he carried a revolver, and that he was furthermore an
expert shot and scarcely two arm-lengths from Kalalo, according to the
latter's own testimony. The two witnesses for the defense, who witnessed
the crime very closely, refuted such allegation saying that Marcelo Kalalo
alone fought the deceased Arcadio Holgado and that the other three
appellants went after the other deceased. It is true that Arcadio Holgado
also used his bolo to defend himself from Marcelo Kalalo's aggression but it
is no less true that five of the principal wounds of the other deceased
Marcelino Panaligan were inflicted on him from behind, inasmuch as
according to Exhibit H they were all found at the back of the head, on the
neck and on his back. Neither is it less true that all the wounds of the
appellant Marcelo Kalalo were inflicted on him from the front, which fact
shows that it was not he alone who inflicted the wounds on the two
deceased because had he been alone Panaligan would not have exposed
his back to be thus attacked from behind, inasmuch as he was armed with a
revolver, which circumstance undoubtedly allowed him to keep at a distance
from Kalalo; and in connection with the testimony of Isabela Holgado and
Maria Gutierrez, said circumstance shows furthermore that the three
appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos attacked said
Panaligan with their respective bolos at the same time that Marcelo Kalalo
attacked Arcadio Holgado, in order that all might act simultaneously in
conformity with the common intent of the four and of their coaccused to
eliminate through violence and at any cost, without much risk to them, all
those who wanted to plow the land which was the cause of the dispute
between the two parties. And it is not strange that the three appellants, who
inflicted the wounds upon Marcelino Panaligan, should act as they did,
because they knew that the latter carried a revolver in a holster on his belt.
Although it may seem a repetition or redundancy, it should be stated that
Marcelo Kalalo's allegation that he acted in self-defense is absolutely
unfounded on the ground that, were it true that the deceased Marcelino
Panaligan succeeded in using his revolver, he would have wounded if not
the said appellant, at least the other appellants.
The trial court has acted correctly in not giving credit to the testimony of the
appellants Juan and Felipe Kalalo and Gregorio Ramos that they proceeded
to the scene of the crime completely unarmed, with the exception that one of
them had a brush in his hand and the other a plane, after Marcelino
Panaligan and Arcadio Holgado had already expired, which is incredible and
improbable under the circumstances, knowing, as in fact they then knew,
that their brother Marcelo Kalalo had been attacked by armed men. This
court cannot help but agree with the decision of the lower court where it
states:
It is improbable that after having been informed that their brother
was engaged in a fight, they went to the scene of the crime, one
merely armed with a plane and the other with a brush. It is
improbable that Felipe Kalalo also went to that place simply to follow
Juan Kalalo and Gregorio Ramos upon seeing them run unarmed in
that direction. These improbabilities of the defenses of the accused,
in the face of the positive and clear testimony of the eyewitnesses
pointing to the said accused as the aggressors of the deceased
Marcelino Panaligan and Arcadio Holgado, cannot, of course, prevail
against nor detract from the weight of the evidence of the
prosecution, particularly taking into consideration the numerous
wounds of each of the deceased and the positions thereof, which
show that the said deceased were attacked by several persons and
that those several persons were the defendants. Furthermore, the
established fact that after the commission of the crime the said
defendants had been in hiding in order to avoid arrest, is
corroborative evidence of their guilt.
It certainly is a fact of record that the said three appellants Felipe Kalalo,
Juan Kalalo and Gregorio Ramos were not arrested until after several days,
because they had been hiding or, at least, absenting themselves from their
homes.
318
That the four appellants should all be held liable for the death of the two
deceased leaves no room for doubt. All of them, in going to the land where
the killing took place, were actuated by the same motive which was to get
rid of all those who might insist on plowing the land which they believed
belonged to one of them, that is, to Marcelo Kalalo, a fact naturally inferable
from the circumstance that all of them went there fully armed and that they
simultaneously acted after they had been instigated by their mother with the
words hereinbefore stated, to wit: "What is detaining you?"
The question now to be decided is whether the appellants are guilty of
murder or of simple homicide in each of cases G.R. No. L-39303 and G.R.
No. L-39304. The Attorney-General maintains that they are guilty of murder
in view of the presence of the qualifying circumstance of abuse of superior
strength in the commission of the acts to which the said two cases
particularly refer. The trial court was of the opinion that they are guilty of
simple homicide but with the aggravating circumstance of abuse of superior
strength.
It is true that under article 248 of the Revised Penal Code, which defines
murder, the circumstance of "abuse of superior strength", if proven to have
been presented, raises homicide to the category of murder; but this court is
of the opinion that said circumstance may not properly be taken into
consideration in the two cases at bar, either as a qualifying or as a generic
circumstance, if it is borne in mind that the deceased were also armed, one
of them with a bolo, and the other with a revolver. The risk was even for the
contending parties and their strength was almost balanced because there is
no doubt but that, under circumstances similar to those of the present case,
a revolver is as effective as, if not more than three bolos. For this reason,
this court is of the opinion that the acts established in cases Nos. 6858 and
6859 (G.R. Nos. L-39303 and 39304, respectively), merely constitute two
homicides, with no modifying circumstance to be taken into consideration
because none has been proved.
As to case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo
Kalalo fired four successive shots at Hilarion Holgado while the latter was
fleeing from the scene of the crime in order to be out of reach of the
appellants and their companions and save his own life. The fact that the
said appellant, not having contended himself with firing only once, fired said
successive shots at Hilarion Holgado, added to the circumstance that
immediately before doing so he and his co-appellants had already killed
Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-law,
respectively, of the former, shows that he was then bent on killing said
Hilarion Holgado. He performed everything necessary on his pat to commit
the crime that he determined to commit but he failed by reason of causes
independent of his will, either because of his poor aim or because his
intended victim succeeded in dodging the shots, none of which found its
mark. The acts thus committed by the said appellant Marcelo Kalalo
constitute attempted homicide with no modifying circumstance to be taken
into consideration, because none has been established.
Wherefore, the three appealed sentences are hereby modified as follows:
In case No. 6858, or G.R. No. 39303, the court finds that the crime
committed by the appellants is homicide and they hereby sentenced to
fourteen years, eight months and one day of reclusion temporal each, to
jointly and severally indemnify the heirs of Marcelino Panaligan in the sum
of P1,000 and to pay the proportionate part of the costs of the proceedings
of both instances; and by virtue of the provisions of Act No. 4103, the
minimum of the said penalty of reclusion temporal is hereby fixed at nine
years;
In case No. 6859, or G.R. No. 39304, the court likewise finds that the crime
committed by the appellants is homicide, and they are hereby sentenced to
fourteen years, eight months and one day of reclusion temporal each, to
jointly and severally indemnify the heirs of Arcadio Holgado in the sum of
P1,000 and to pay the proportionate part of the costs of both instances; and
in conformity with the provisions of Act No. 4103, the minimum of the
penalty of reclusion temporal herein imposed upon them is hereby fixed at
nine years;
In case No. 6860, or G.R. No. 39305, the court finds that the crime
committed by the appellant Marcelo Kalalo is attempted homicide, and he is
hereby sentenced to two years, four months and one day of prision
correccional, it being understood that by virtue of the provisions of said Act
No. 4103, the minimum of this penalty is six months, and he is furthermore
sentenced to pay the costs of the appeal in this case.
In all other respects, the appealed sentences in the said three cases are
hereby affirmed without prejudice to crediting the appellants therein with
one-half of the time during which they have undergone preventive
imprisonment, in accordance with article 29 of the Revised Penal Code. So
ordered.
Street, Abad Santos, Hull, and Butte, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
319
G.R. No. L-19069 October 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMADEO PERALTA, ET AL., defendants,
ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG,
AMADEO PERALTA, FLORENCIO LUNA and GERVASIO
LARITA, defendants-review.
Assistant Solicitors General Vicente A. Torres and Antonio Ibarra for
plaintiff-appellee.
J. R. Nuguid for defendants-review.
PER CURIAM:
In the decision in criminal case 7705 of the Court of First Instance of
Rizal,subject of the present automatic review, Amadeo Peralta, Andres
Factora, Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio
Luna (six among the twenty-two defendants1 charged therein with multiple
murder) were pronounced guilty, and all sentenced to death, to indemnify
jointly and severally the heirs of each of the victims, namely, Jose Carriego,
Eugenio Barbosaand Santos Cruz, in the sum of P6,000, and each to pay
his corresponding share of the costs.
The information recites:
That on or about the 16th day of February, 1958, in the municipality
of Muntinglupa, province of Rizal, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, who
are convicts confined in the New Bilibid Prisons by virtue of final
judgments, conspiring, confederating and mutually helping and
aiding one another, with evident premeditation and treachery, all
armed with deadly weapons, did, then and there, willfully, unlawfully
and feloniously kill Jose Carriego, Eugenio Barbosa and Santos
Cruz, also convicts confined in the same institution, by hitting,
stabbing and striking them with ice picks, clubs and other improvised
weapons, pointed and/or sharpened, thereby inflicting upon the
victims multiple serious injuries which directly caused their deaths.
That the aggravating circumstance of quasi-recidivism is present in
the commission of the crime in that the crime was committed after
the accused have been convicted by final judgments and while they
are serving the said judgments in the New Bilibid Prisons.
Contrary to law with the following aggravating circumstances:
 1. That the crime was committed with insult to public authorities;
2. That the crime was committed by a band;
3. That the crime was committed by armed men or persons who
insure or afford impunity;
4. That use of superior strength or means was employed to weaken
the defense;
5. That as a means to the commission of the crime doors and
windows have been broken;
6. That means was employed which add ignominy to the natural
effects of the act;
7. That the crime was committed where public authorities were
engaged in the discharge of their duties.
Upon motion of the provincial fiscal before trial, the lower court dismissed
the charge against one of the accused2for laRepublic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-23249 November 25, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CUNIGUNDA BOHOLST-CABALLERO, accused-appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General
Florencio Villamor and Attorney Concepcion F. Torrijos for plaintiff-appellee.
Accused-appellant in her own behalf.
MUÑOZ PALMA, J.:p
320
Convicted for having killed her husband, Cunigunda Boholst-Caballero seeks a reversal of the judgment of
the Court of First Instance of Ormoc City finding her guilty of PARRICIDE and sentencing her "to suffer an
indeterminate imprisonment of from EIGHT (8) YEARS and ONE (1) DAY of prision mayor in its medium
period, as the minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion
temporal in its medium period as the maximum; to indemnify the heirs of Francisco Caballero in the sum of
SIX THOUSAND PESOS (P6,000.00) without subsidiary imprisonment in case of insolvency, and to pay
the costs", and prays for an acquittal based on her plea of self-defense.1
The Solicitor General however asks for the affirmance of the appealed
decision predicated on the following testimonial and documentary evidence
presented by the prosecution before the trial court:
Cunigunda Boholst and Francisco Caballero, both at the age of twenty, were
married on June 7, 1956, at a ceremony solemnized by the parish priest of
the Roman Catholic Church in Ormoc City.2 The marriage was not a happy
one and before the end of the year 1957 the couple separated. Late in the
evening of January 2, 1958, Francisco Caballero and two companions,
namely, Ignacio Barabad and Kakong Sacay, drank "tuba" in a certain
house in barrio Ipil, Ormoc City. At about midnight, Francisco Caballero and
his companions proceeded home. On the way, they saw Francisco's wife,
Cunigunda, standing at the corner of the yard of Igmedio Barabad
Cunigunda called Francisco and when the latter approached her, Cunigunda
suddenly stabbed Francisco with a knife marked by the prosecution as its
Exhibit C. Francisco called for help to his two companions who upon seeing
that Francisco was wounded, brought him to the St. Jude Hospital.3 Dr.
Cesar Samson, owner of the hospital, personally attended to the victim and
found a "punctured wound on the left lumbar region measuring 1 inch
externally" (Exhibit B). First aid was given, but because there was a need for
blood transfusion and the facilities of the hospital were inadequate to
provide the necessary treatment, Dr. Samson suggested that the patient be
transported to Cebu City.4 In the meantime, Cunigunda Caballero had gone
to the Police Department of Ormoc City, surrendered to desk sergeant
Restituto Mariveles and informed the latter that she stabbed her
husband.5 While Francisco Caballero was confined at the hospital, he was
interrogated by Patrolman Francisco Covero concerning the identity of his
assailant and he pointed to his wife Cunigunda. The questions propounded
by Pat. Covero and the answers given by the victim were written down in a
piece of paper on which the victim affixed his thumbmark (Exhibit D) in the
presence of his brother, Cresencio Caballero, and another policeman,
Francisco Tomada.6 On January 4, 1958, Francisco Caballero was brought
to Cebu City on board the "MV Ormoc" but the trip proved futile because the
victim died at noontime of the same day from the stab wound sustained by
him.7
Appellant, on the other hand, pleads that We discard the proof adduced by
the prosecution and believe instead what she declared before the trial judge
briefly summarized as follows:
After her marriage to Francisco Caballero on June 7, 1956, appellant lived
with her husband in the house of her parents in barrio Ipil, Ormoc City, and
their marriage, although not a harmonious one, was blessed with a
daughter; her married life was marked by frequent quarrels caused by her
husband's "gambling, drinking, and serenading", and there were times when
he maltreated and beat her; after more than a year she and her husband
transferred to a house of their own, but a month had hardly passed when
Francisco left her and her child, and she had to go back to live with her
parents who bore the burden of supporting her and her child; in the month of
November, 1957, her daughter became sick and she went to her husband
and asked for some help for her sick child but he drove her away and said "I
don't care if you all would die"; in the evening of January 2, 1958, she went
out carolling with her friend, Crispina Barabad, and several men who played
the musical instruments; at about 12:00 o'clock midnight they divided the
proceeds of the carolling in the house of Crispina Barabad after which she
went home, but before she could leave the vicinity of the house of Crispina,
she met her husband Francisco, who upon seeing her, held her by the collar
of her dress and asked her: "Where have you been prostituting? You are a
son of a bitch."; she replied: "What is your business. Anyway you have
already left us. You have nothing to do with us"; upon hearing these words
Francisco retorted: "What do you mean by saying I have nothing to do with
you. I will kill you all, I will kill you all"; Francisco then held her by the hair,
slapped her face until her nose bled, and pushed her towards the ground, to
keep herself from falling she held on to his waist and as she did so her right
hand grasped the knife tucked inside the belt line on the left side of his
body; because her husband continued to push her down she fell on her
back to the ground; her husband then knelt over her, held her neck, and
choked her saying. "Now is the time I can do whatever I want. I will kill you";
because she had "no other recourse" as she was being choked she pulled
out the knife of her husband and thrust it at him hitting the left side of his
body near the "belt line" just above his left thigh; when she finally released
herself from the hold of her husband she ran home and on the way she
threw the knife; in the morning of January 3, she went to town, surrendered
to the police, and presented the torn and blood-stained dress worn by her
on the night of the incident (see Exhibit I); Pat. Cabral then accompanied
her to look for the weapon but because they could not find it the policeman
advised her to get any knife, and she did, and she gave a knife to the desk
sergeant which is the knife now marked as Exhibit C for the prosecution.8
The sole question thus presented in this appeal is: did appellant stab her
husband in the legitimate defense of her person?
The law on self-defense embodied in any penal system in the civilized world
finds justification in man's natural instinct to protect, repel, and save his
person or rights from impending danger or peril; it is based on that impulse
of self-preservation born to man and part of his nature as a human being.
321
Thus, in the words of the Romans of ancient history: Quod quisque ob
tutelam sui fecerit, jure suo ficisse existimetur.9 To the Classicists in penal
law, lawful defense is grounded on the impossibility on the part of the State
to avoid a present unjust aggression and protect a person unlawfully
attacked, and therefore it is inconceivable for the State to require that the
innocent succumb to an unlawful aggression without resistance; while to the
Positivists, lawful defense is an exercise of a right, an act of social justice
done to repel the attack of an aggressor.10
Our law on self-defense is found in Art. 11 of the Revised Penal Code which
provides:
ART. 11. Justifying circumstances. — The following do not
incur any criminal liability:
1. Anyone who acts in defense of his person or rights,
provided that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
xxx xxx xxx
As part of this law is the settled jurisprudence that he who seeks justification
for his act must prove by clear and convincing evidence the presence of the
aforecited circumstances, the rationale being that having admitted the
wounding or killing of his adversary which is a felony, he is to be held
criminally liable for the crime unless he establishes to the satisfaction of the
court the fact of legitimate self-defense. 11
In this case of Cunigunda Caballero, the trial court did not find her evidence
clear and convincing, and gave these reasons for its conclusion: a)
appellant's testimony is inherently improbable as brought out by her
demonstration of the incident in question during the trial of the case; b) there
was no wound or injury on appellant's body treated by any physician: c)
appellant's insistence that the weapon used by her was Moro hunting knife
and not Exh. C is incredible; d) she gave contradictory statements
concerning the report made by her to the police authorities that she was
choked by her husband; and e) her husband's abandonment of her and her
child afforded the motive behind appellant's
attack. 12
We are constrained, however, to disagree with the court a quo and depart
from the rule that appellate court will generally not disturb the findings of the
trial court on facts testified to by the witnesses.
An examination of the record discloses that the trial judge overlooked and
did not give due importance to one piece of evidence which more than the
testimony of any witness eloquently confirms the narration of appellant on
how she happened to stab her husband on that unfortunate night. We refer
to the location of the wound inflicted on the victim.
Appellant's account of that fatal occurrence as given in her direct testimony
follows:
Q At that precise time when you were going
home to the place of your parents, did any
unusual incident occur?
A Yes, sir.
Q What was it?
A At the time when I went down from the
house of Crispina Barabad, when I reached
near the banana hill, my husband held me.
Q What happened when your husband,
Francisco Caballero, held you?
A He asked me from where did I prostitute
myself.
Q What did you answer?
A I answered that I did not go (on)
prostituting. I told him that I was only forced
to accompany with the carolling in order to
earn money for our child.
Q What part of your body did your husband,
Francisco Caballero, hold you?
322
A He held me at the collar of my dress.
(Witness holding the right portion of the collar
of her dress.)
Q After you answered Francisco, what did he
do?
A He said "Where have you been
prostituting? You are a son of a bitch." Then I
told him "What is your business. Anyway you
have already left us. You have nothing to do
with us."
Q When Francisco heard these words, what
did he do?
A Francisco said "What do you mean by
saying l have nothing to do with you. I will kill
you all. I will kill you all."
Q And then, what happened?
A He held my hair and slapped my face
twice. Then I staggered and my nose was
bleeding.
Q Do you mean to say that blood flowed out
of your nose?
A Yes, sir.
Q After you were slapped twice and your
nose begun to bleed, what happened next?
A He held the front part of my dress just
below the collar and pushed me towards the
ground. .
Q While your husband was holding your
dress below the neck and tried to push you
down, what did you do?
A I held a part of his body in order that I
would not fall to the ground.
Q And then what happened?
A Because I struggled hard in order that I
would not fall to the ground I held his belt
and that was the time I got hold of a weapon
along his belt line.
Q After that what happened?
A He shoved my hands upward and pushed
me to the ground and that was the time my
hands were released. He was choking me.
Q When you said your hands were released,
was that before or after you were choked by
Francisco Caballero?
A At that time when I was about to fall to the
ground that was the time I released my
hands.
Q When you were almost fallen to the
ground, where were the hands of Francisco
Caballero?
A On my hair.
Q You mean to say the two hands of
Francisco Caballero?
A One of his hands was holding my hair. The
other hand pushed me.
COURT:
Q What hand was holding your hair?
A His right hand was holding my hair while
his left hand pushed me.
ATTORNEY GARCIA:
Q When you were fallen to the ground what
happened?
323
A While I lay prostrate on the ground and
believing that I have no other recourse, while
his left hand was holding my neck, I was able
to take hold of the weapon from his belt line
and I thrust it to him.
Q What was this weapon which you were
able to get from his belt line?
A It was a hunting knife." (tsn. pp. 53-55,
witness Cunigunda Caballero)
On cross-examination, appellant was asked by the private prosecutor to
show her position when she stabbed her husband and she did, and although
the stenographic notes on that demonstration are very sketchy which We
quote:
Q Please demonstrate to this Court when
you made the thrust to your husband?
A When I took hold of the hunting knife I
made the thrust in this manner. (Witness held
the ruler with her right hand kneeled on the
floor)" (tsn. p. 67, ibid)
still We can get a clear picture of what appellant must have done, from the
questions and answers immediately following the above-quoted portion of
the transcript, viz:
Q You want to make us understand that
when you thrust the weapon to the body of
your husband you were lying down flat to the
ground?
A I was lying flat on the ground face upward.
I was a little bit inclined because tried to
struggle trying to get away from the hold of
my husband.
Q You want to make us understand that your
back was touching the ground when you
made the thrust to your husband?
A Yes, sir.
 COURT:
Q Where were you kneeled by your,
husband?
A On my right thigh. (ibid; emphasis
supplied)
Thus, with her husband kneeling over her as she lay on her back on the
ground and his hand choking her neck, appellant, as she said, had no other
recourse but to pull out the knife inserted at the left side of her husband's
belt and plunge it at his body hitting the left back portion just below the
waist, described by the attending physician, Dr. Cesar Samson, as the left
lumbar region. The fact that the blow landed in the vicinity from where the
knife was drawn is a strong indication of the truth of appellant's testimony,
for as she lay on the ground with her husband bent over her it was quite
natural for her right hand to get hold of the knife tucked in the left side of the
man's belt and thrust it at that section of the body nearest to her hand at the
moment.
We do not agree with the trial judge's observation that as demonstrated by
the accused it was physically impossible for her to get hold of the weapon
because the two knees of her husband were on her right thigh "which would
have forced her to put her right elbow towards the ground"(see p. 9 of
Decision), for even if it were true that the two knees of Francisco were on
his wife's right thigh, however, there is nothing in the record to show that the
right arm of the accused was held, pinned down or rendered immobile, or
that she pressed her elbow to the ground, as conjectured by the trial judge,
in such a manner that she could not reach for the knife. On the contrary, as
indicated earlier, accused testified and so demonstrated that she was lying
flat on her back, her husband kneeling over her and her right arm free to pull
out the knife and strike with it.
The trial judge also referred the a demonstration made by appellant of that
portion of her testimony when she was held by the hair and pushed down to
the ground, and His Honor commented that "(S)he could not be falling to the
ground, as shown to the Court by her, considering the fact that the pushing
was to and fro as shown in her demonstration." (p. 8, Decision) The trial
judge, however, failed to consider that it is humanly impossible to have an
exact and accurate reproduction or reenactment of an occurrence especially
if it involves the participation of persons other than the very protagonists of
the incident being re-enacted. In this particular instance appellant was
asked by the private prosecutor to show how she was pushed down by her
husband, and her demonstration is described in the stenographic transcript
as follows:
324
Q Please demonstrate to this Court the
position of your husband and you while your
husband held your hair.
A He did this way. (Witness held the hair of
the Court Interpreter with his left hand and
his right hand held the right shoulder of the
Interpreter and pulled the Interpreter to and
fro. The Interpreter represented as the
accused and the accused as the deceased.)
Q Where were your two hands?
A My two hands held his waist line. (tsn. 66,
witness Cunigunda Caballero; emphasis
supplied)
In that demonstration, accused represented the victim while she in turn was
impersonated by the court interpreter, and so it was difficult if not impossible
for the two to give an accurate reenactment considering that the accused
assumed a role not hers during the actual incident and the court interpreter
played a part which was not truly his. At any rate, the accused showed how
one hand of her husband held her hair while the other pushed her down by
the shoulder, and to portray how she in turn struggled and tried to push back
her husband to keep herself from falling, she "pulled the interpreter
(representing the accused) to and fro." The fact is that Francisco succeeded
in forcing appellant down to the ground as portrayed by the latter when,
following the foregoing demonstration, she was asked by the private
prosecutor to show how she stabbed her husband — a matter which is
discussed in pages 8 and 9 of this Decision.
It is this particular location of the wound sustained by the victim which
strongly militates against the credibility of the lone prosecution witness,
Ignacio Barabad. This witness declared that on that night when husband
and wife met on the road, Cunigunda called Francisco and when the latter
was near, she immediately stabbed him. If that were true, that is, husband
and wife were standing face to face at a distance of one-half meter when the
stabbing occurred (tsn. p. 11, witness Ignacio Barabad), it would have been
more natural and probable for the weapon to have been directed towards
the front part of the body of the victim such as his abdomen or chest, rather
than at his back, left side, just above the left thigh.
In cases such as the one now before Us where there are directly conflicting
versions of the incident object of the accusation, the Court in its search for
the truth perforce has to look for some facts or circumstances which can be
used as valuable aids in evaluating the probability or improbability of a
testimony, for after all the element of probability is always involved in
weighing testimonial evidence13, so much so that when a court as a judicial
fact-finder pronounces judgment that a set of facts constitute the true
happening it does so not of its own personal knowledge but as the result of
an evaluating process of the probability or improbability of a fact sought to
be proved.
Thus, in People vs. Aquino, L-32390, December 28, 1973, a decision of the
First Division of this Court penned by Chief Justice Querube C. Makalintal,
the plea of self-defense of the accused-appellant was sustained on the
basis of certain "physical and objective circumstances" which proved to be
of "decisive importance" in ascertaining the veracity of the plea of self-
defense, to wit: the location of the wound on the right side of the throat and
right arm of the deceased, the direction of the trajectories of the bullets fired
by the accused, the discovery of bloodstains at the driver's seat, the finding
of the dagger and scabbard of the deceased, and so on. 14
In the case of appellant Cunigunda Caballero, We find the location of the
fatal wound as a valuable circumstance which confirms the plea of self-
defense.
Another, is the lack of motive of appellant in attacking and killing her
husband on that particular night of January 2. Although it is the general rule
that the presence of motive in the killing of a person is not indispensable to
a conviction especially where the identity of the assailant is duly established
by other competent evidence or is not disputed, as in this case,
nonetheless, the absence of such motive is important in ascertaining the
truth as between two antagonistic theories or versions of the killings. 15
We disagree with the statement of the court a quo that appellant's motive for
killing her husband was his abandonment of her and his failure to support
her and her child. While appellant admitted in the course of her testimony
that her marriage was not a happy one, that she and her husband separated
in the month of October, 1957, and since then she and her child lived with
her parents who supported them, nevertheless she declared that
notwithstanding their separation she still loved her husband (tsn. p. 59,
cross-examination of appellant). As a matter of fact, appellant had been
living with her parents for several months prior to the incident in question
and appeared resigned to her fate. Furthermore, there is no record of any
event which occurred immediately prior to January 2 which could have
aroused her feelings to such a degree as to drive her to plan and carry out
the killing of her husband.
325
On the other hand, it was Francisco Caballero who had a reason for
attacking his wife, Cunigunda. Meeting his wife unexpectedly at past
midnight on the road, Francisco reacted angrily, and suspecting that she
was out for some bad purpose he held her by the collar of her dress and
said: "Where have you been prostituting? You are a son of a bitch." This
was followed by a slapping on the face until Cunigunda's nose bled, pulling
of her hair, pushing her down to the ground, and strangling her — all of
which constituted the unlawful aggression against which appellant had to
defend herself.
Next to appellant's lack of motive for killing her husband, is her conduct
shortly after the occurrence. As soon as the sun was up that morning of
January 3 (the stabbing occurred past midnight of January 2), Cunigunda
went to the city and presented herself at the police headquarters where she
reported that she stabbed her husband and surrendered the blood-stained
dress she wore that night. On this point, the trial judge stated that appellant
made contradictory statements in her testimony concerning the report made
by her to the police authorities, for while at the start she declared that she
did not report the "choking by her husband", she later changed her
testimony and stated that she did relate that fact. (p. 10, Decision)
We have gone over the stenographic transcript of the testimony of appellant
on direct examination and nowhere is there a positive and direct statement
of hers that she did not report that she was choked by her husband. What
the trial judge asked of appellant was whether or not she told the police
about the fist mark on her face and her answer was "No, sir, I forgot." (tsn.
p. 55, supra) And on appellant's cross-examination, there was no question
propounded and therefore there was no answer given on the subject-matter
of appellant's report to the police concerning the incident except for the
following:
COURT:
Q Did you show that dress to the police
authorities the following day?
A I was not able to wear that, Your Honor,
because it was torn out.
Q You did not bring that to the police
authorities?
A I showed it to the police authorities, and
they told me to keep it, not to touch it. (Tsn.
p. 65, ibid)
We do not see, therefore, the alleged contradiction in appellant's testimony
which was singled out by His Honor as one of his reasons for discrediting
her plea of self-defense.
That appellant made it clear to the police that she stabbed her husband
because he attacked her is confirmed by no less than the prosecution
witness, Patrolman Restituto Mariveles, who was on duty at the desk when
appellant arrived at the police headquarters. This witness on cross-
examination declared:
Q And she also told you that on that night
previous to the incident her husband
Francisco Caballero beat her up, is that
right?
A She told me that she was met on the way
by her husband immediately after carolling
and she was manhandled by her husband
and when she was struggling to get loose
from her husband she happened to take hold
of a knife that was placed under the belt of
her husband and because she was already
half conscious she did not know that she was
able to thrust said knife to the stomach of her
husband. (tsn. p. 23, witness R. Mariveles)
It is indeed regrettable that the statements made by appellant to the police
upon her surrender were not taken down in writing to serve as a faithful and
reliable account of her report, nevertheless, We are satisfied by the fact,
which is not disputed, that of her own accord appellant went to the police
authorities early in the morning of January 3, informed Policeman Mariveles
that she stabbed her husband because he manhandled her which rendered
her "half-conscious", and brought and showed the dress she wore during
the incident which was torn by the collar and with blood stains due to the
bleeding of her nose. Another policeman, Joventino de Leon, who at the
time was property custodian of the Ormoc City police, corroborated
appellant's testimony concerning the dress marked Exhibit 1 for the defense.
(tsn. p. 70 witness J. de Leon) If there was no clear and positive statement
in appellant's testimony either on direct or cross examination that she
informed the police that she was choked by her husband, it was because, as
We noted, no question was propounded to her on that point.
While We are on this subject of appellant's surrender, mention is to be made
of the knife marked as Exhibit C for the prosecution. In her testimony,
appellant stated that Exhibit C was not the knife actually used by her in
326
stabbing her husband because the true weapon was her husband's Moro
hunting knife with a blade of around six inches which she threw away
immediately after the incident; that when she was asked by Pat. Mariveles
to look for the weapon and she could not find it, she was advised by
policeman Cabral who helped her in the search to get any knife and
surrender it to the desk officer and so she took the knife Exhibit C and
presented it to Pat. Mariveles. (tsn. appellant pp. 56-57, 60) This testimony
of appellant was taken against her by the court a quo which held that her
declaration could not have been true. We find however no strong reason for
disbelieving the accused on this point. Appellant does not deny that she
turned over Exhibit C to Pat. Mariveles as the knife with which she stabbed
her husband but she claims that she did so upon advise of another
policeman, Pat. Cabral, and it is quite significant that the latter was not
called upon by the prosecution to refute such declaration. There is sincerity
in appellant's attempt to rectify a misstatement made by her to Pat.
Mariveles and We are inclined to believe and in fact We do believe that the
fatal weapon must have had indeed a blade of around six inches as stated
by appellant for it to penetrate through the left lumbar region to the victim's
large intestine and cause the discharge of fecal matter (tsn. Dr. C. Samson,
p. 6)
All the elements of self-defense are indeed present in the instant case.
The element of unlawful aggression has been clearly established as pointed
out above.
The second element, that is, reasonable necessity for the means employed
is likewise present. Here we have a woman who being strangled and
choked by a furious aggressor and rendered almost unconscious by the
strong pressure on her throat had no other recourse but to get hold of any
weapon within her reach to save herself from impending death. Early
jurisprudence of this Court has followed the principle that the reasonable
necessity of the means employed in self-defense does not depend upon the
harm done but rests upon the imminent danger of such injury. (U.S. vs.
Paras, 1907, 9 Phil. 367, citing Decision of Dec. 22, 1887) And so the fact
that there was no visible injury caused on the body of the appellant which
necessitated medical attention, a circumstance noted by the trial court, is no
ground for discrediting self-defense; what is vital is that there was imminent
peril to appellant's life caused by the unlawful aggression of her husband.
The knife tucked in her husband's belt afforded appellant the only
reasonable means with which she could free and save herself from being
strangled and choked to death. What this Court expressed in the case of
People vs. Lara, 1925, 48 Phil. 153, 160, is very true and applicable to the
situation now before Us, and We quote:
 It should be borne in mind that in emergencies of this kind
human nature does not act upon processes of formal reason
but in obedience to the instinct of self-preservation; and
when it is apparent, as in this case, that a person has
reasonably acted upon this instinct, it is the duty of the
courts to sanction the act and to hold the actor irresponsible
in law for the consequences. 16
Equally relevant is the time-honored principle: Necessitas Non habet legem.
Necessity knows no law.
The third element of self-defense is lack of sufficient provocation on the part
of the person defending himself.Provocation is sufficient when it is
proportionate to the aggression, that is, adequate enough to impel one to
attack the person claiming self-
defense. 17 Undoubtedly appellant herein did not give sufficient provocation
to warrant the aggression or attack on her person by her husband,
Francisco. While it was understandable for Francisco to be angry at his wife
for finding her on the road in the middle of the night, however, he was not
justified in inflicting bodily punishment with an intent to kill by choking his
wife's throat. All that appellant did was to provoke an imaginary commission
of a wrong in the mind of her husband, which is not a sufficient provocation
under the law of self-defense. Upon being confronted by her husband for
being out late at night, accused gave a valid excuse that she went carolling
with some friends to earn some money for their child. January 2 was indeed
within the Christmas season during which by tradition people carol from
house to house and receive monetary gifts in a Christian spirit of goodwill.
The deceased therefore should have given some consideration to his wife's
excuse before jumping to conclusions and taking the extreme measure of
attempting to kill his wife.
IN VIEW OF THE ABOVE CONSIDERATIONS, We find that accused-
appellant acted in the legitimate defense of her person, and We accordingly
set aside the judgment of conviction and ACQUIT her with costs de oficio.
So Ordered.
Makalintal, C.J, Teehankee, Makasiar and Esguerra, JJ., concur.
Castro, J, is on leave.
ck of evidence. After the prosecution had rested its case, the charges
against six of the accused3 were dismissed for failure of the prosecution to
327
establish a prima facie case against them. One of the defendants
died4during the pendency of the case. After trial, the court a quo acquitted
eight5 of the remaining defendants.
As early as in 1956, a great number of inmates confined in the national
penitentiary at Muntinglupa arrayed themselves into two warring gangs, the
"Sigue-Sigue" and the "OXO", the former composed predominantly of
Tagalog inmates, the latter comprised mainly of prisoners from the Visayas
and Mindanao. Since then the prison compound has been rocked time and
time again by bloody riots resulting in the death of many of their members
and suspected sympathizers. In an effort to avert violent clashes between
the contending groups, prison officials segrerated known members of the
"Sigue-Sigue" from those of the "OXO". Building 1 housed "Sigue-Sigue"
members, while a majority of the prisoners confined in Bldg. 4 belonged to
the "OXO". Even in Bldg. 4, which is composed of four brigades, namely, 4-
A and 4-B (upper floor) and 4-C and 4-D (first floor), inmates from Visayas
and Mindanao, from whom the "OXO" drew most of its members, were
confined in 4-A.
It was at about 7:00 a.m. on February 16, 1958, while the inmates of the
penitentiary were preparing to attend Sunday mass, that a fight between two
rival members of the "Sigue-Sigue" and "OXO" gangs occurred in the plaza
where the prisoners were assembled, causing a big commotion. The fight
was, however, quelled, and those involved were led away for investigation,
while the rest of the prisoners were ordered to return to their respective
quarters. Hardly had conditions returned to normal when a riot broke out in
Bldg. 1, a known lair of the "Sigue-Sigue". The inmates thereof tried to
invade Bldg. 4, where many members and sympathizers of the "OXO" gang
were confined. The timely arrival of the guards forced the invading inmates
to retreat and return to Bldg. 1. Moments later, another riot erupted in Bldg.
4, as the inmates of brigade 4-A destroyed the lock of their door and then
rampaged from one brigade to another. The invading prisoners from 4-A,
mostly "OXO" members and sympathizers, clubbed and stabbed to death
Jose Carriego, an inmate of 4-B. Afterwards, they forcibly opened the door
of 4-C and killed two more inmates, namely, Eugenio Barbosa and Santos
Cruz.
The three victims sustained injuries which swiftly resulted in their death —
before they could be brought to the hospital.
Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in length and 3
cm.in depth; (b) contusion and hematoma of the back of the neck, about 2
inches in diameter; and (c) five punctured wounds in the chest, penetrating
the lungs. Cause of death: internal hemorrhage from multiple fatal wounds
in the chest.
Eugenio Barbosa: (a) lacerated wound in the occipital region, 3 inches in
length and 1 cm. in depth; (b) two penetrating wounds in the abdomen,
puncturing the intestines; (c) lacerated wounds on the right oxilla, 3 cm. in
length and 2 cm. in depth; and (d) several bruises at the right and left lower
extremities. Cause of death: shock, secondary to internal hermorrhage in
the abdomen.
Santos Cruz: (a) lacerated wound on the head, 2 inches in length; (b)
fractured skull; (c) wound on the upper lip cutting the lip in two; (d) seven
punctured wounds in the chest, two of which were penetrating; (e)
hematoma on the right hand; and (f) three punctured wounds on the left
hand. Cause of death: fractured skull.
Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-B,
testified that while he was taking his breakfast with Jose Carriego, who was
at the time the representative of the prisoners confined in 4-B to the inmate
carcel, he "suddenly heard commotion" near the door of their brigade; that
his fellow prisoners started shouting "pinapasok na tayo," as the invading
inmates from brigade 4-A stampeded into 4-B; that he and Carriego took
hold of their clubs and stood at the end of the passageway; that he saw
Carriego surrender his club to Andres Factora, an "OXO" member from 4-A;
that as Carriego started to walk away, Factora clubbed Carriego on the
nape causing the latter to fall; that Factora turned up the face of his fallen
victim and struck him again in the face; that while Carriego was in this
prostrate position, Amadeo Peralta and Leonardo Dosal, companions of
Factora, repeatedly stabbed him.
The testimony of Pineda was corroborated in all its material points by
Juanito Marayoc and Avelino Sauza, both inmates of 4-B. These two
prosecution witnesses identified Factora, Peralta and Dosal as the
assailants of Carriego.
From 4-B, the invading inmates of 4-A went down and forcibly entered 4-C.
According to Oscar Fontillas, an inmate of 4-C, he saw the prisoners from 4-
A rushing toward their brigade; that among the invading inmates who forced
open the door of 4-C, with help from the inside provided by Visayan
prisoners confined in 4-C, were Factora, Dosal, Angel Parumog, Gervacio
Larita, Ernesto Fernandez and Jose Tariman; that he saw Factora, Larita
and Fernandez kill Barbosa, while the rest of their companies instructed the
Visayans to leave their cell and ordered the "Manila boys" (Tagalogs) to
remain. Antonio Pabarlan, another inmate of 4-C, declared that he saw
Peralta stab Barbosa, as Dosal, Larita, Florencio Luna, Parumog and
Factora clubbed the hapless victim. Another inmate of 4-C, Jose Halili, not
only corroborated the testimony of Fontillas and Pabarlan but as well added
grim details. He declared that while Barbosa was trying to hide under a cot,
he was beaten and stabbed to death by Dosal, Parumog, Factora and
328
Fernandez, with Luna, Larita, Pedro Cogol and Eilel Tugaya standing guard,
armed with clubs and sharp instruments, in readiness to repel any
intervention from the Tagalog inmates. Carlos Espino, also confined in 4-C,
declared that he saw Parumog, Peralta Factora and Larita assault and kill
Barbosa.
The same witnesses for the prosecution testifies that after killing Barbosa,
the invading "OXO" members and sympathizers proceeded to hunt for
Santos Cruz, another Tagalog like Carriego and Barbosa. Halili testified,
that he saw Peralta, Larita, Cogol and Tugaya take Santos Cruz to 4-A from
4-C; that Santos Cruz knelt down and pleaded for his life, saying, "Maawa
kayo sa akin. Marami akong anak;" that Luna and Peralta were unmoved as
they stabbed Santos Cruz to death. Pabarlan declared that after the death
of Barbosa, Santos Cruz was brought to 4-A by the invading inmates but
Cruz was able to slip back to his cell only to be recaptured by Factora,
Dosal and Luna and brought to near the fire escape where he was clubbed
and stabbed to death by Parumog, Dosal, Factora and Peralta. Fontillas and
Espino corroborated the declarations of Halili and Pabarlan with respect to
the killing of Santos Cruz, and both mentioned Larita as one of the
assailants of Cruz.
The trial judge summarized the evidence for the prosecution, thus:
"... it clearly appears that the three killings in question were an
offshoot of the rivalry between the two organizations. All those who
were killed, namely, Barbosa, Carriego and Santos Cruz, were
Tagalogs and well known as members if not sympathizers of the
Sigue Sigue, while the accused so charged with their killing were
mostly members if not sympathizers of the Oxo organization. These
three killings were sparked by the commotion that happened in the
plaza between 8:00 and 9:00 in the morning, while the prisoners
were preparing to go the mass ... It was evident that the clash that
occurred in the plaza produced a chain reaction among the
members and followers of the two organizations. The inmates of
Building No. 1, known lair of the Sigue Sigues bolted the door of
their cells and tried to invade Building No. 4 where a big number of
the Oxo members and their sympathizers were confined, but,
however, were forced to retreat by the timely arrival of the guards
who sent them back to their building. When the members of the Oxo
in Building No. 4 learned about this, they went on a rampage looking
for members of the Sigue Sigue or their sympathizers who were
confined with them in the same building. As the evidence of the
prosecution shows, the accused who were confined in Brigade 4-A
of Building No. 4 led the attack. They destroyed the lock of their
dormitories and with the help of their companions succeeded in
bolting the door of the different brigades, and once they succeeded
 in bolting the doors of the different brigades, they went inside and
tried to segregate the Tagalogs from their group; that as soon as
they discovered their enemies they clubbed and stabbed them to
death ...
Admitting that he was one among several who killed Jose Carriego, Peralta
nevertheless claims self-defense. He testified that on the morning of the riot
he was attacked by Carriego and Juan Estrella near the door of 4-A while he
was returning to his brigade from the chapel with some companions; that
Carriego clubbed him on the head; that he was able to parry the second
blow of Carriego and then succeeded in squeezing Carriego's head with his
hands; that forthwith he whipped out an improvised ice pick and stabbed
Carriego several times; that when he (Peralta) was already dizzy due to the
head wound he sustained from the clubbing, Carriego managed to slip
away; that he then became unconscious, and when he regained
consciousness he found himself on a tarima with his head bandaged.
Peralta's declarations do not inspire belief. The impressive array of
prosecution witnesses who saw him actively participate in the killing of the
three victims pointed to him as the aggressor, not the aggrieved. Pineda,
Marayoc and Sauza positively identified him as one of the assailants of
Carriego. Contrary to the pretensions of Peralta, Carriego an alleged "Sigue-
Sigue" member, would not have attacked him, knowing fully well that
Building No. 4 was an "OXO" lair where the "Sigue-Sigue" members were
outnumbered. Anent the killing of Barbosa and Santos Cruz, Peralta failed
to offer any explicit defense to rebut the inculpatory declarations of
prosecution witnesses Pabarlan and Espino who saw him participate in the
killing of Barbosa and those of Halili, Fontillas and Espino who identified him
as one of the murderers of Santos Cruz.
For his part, Leonardo Dosal stated that he killed Santos Cruz, but also
claims self-defense in exculpation. He declared that Santos Cruz, Jose
Carriego, Juanita Espino, Carlos Espino and Oscar Fontillas invaded 4-A
where he was confined; that a free-for-all forthwith ensued; that he then
heard Santos Cruz call Carlos Espino, and advise the latter to go away as "I
will be the one to kill that person (Dosal);" that with a sharp instrument, Cruz
hit him on the head and then on the nose; that as Cruz was about to hit him
again, he got hold of his ice pick and stabbed Cruz repeatedly until the latter
fell.
Dosal's avowal is clearly belied by the positive testimonies of Pabarlan,
Halili and Espino who saw him participate in the killing of Santos Cruz. If it is
true that Dosal killed Santos Cruz in self-defense when the latter together
with his companions supposedly invaded Dosal's brigade (4-A), why is it that
the body of Santos Cruz was found at the fire escape near
the pasillo between 4-C and 4-D of the first floor of Bldg. 1 instead of in 4-A
329
which is located in the upper floor? Moreover, Dosal failed to explain why he
was seen in 4-C, which he does not deny, since he was an inmate of 4-A
where he was allegedly attacked. With respect to the murder of Carriego
and Barbosa with which Dosal was also charged, he did not offer any
evidence in his behalf. Hence, the testimonies of Pineda, Marayoc and
Sauza identifying him as one of the killers of Carriego and those of
Pabarlan, Halili and Espino implicating him in the death of Santos Cruz,
stand unrebutted.
Andres Factora declared that he clubbed Carriego and Santos Cruz under
compulsion of his co-accused who threatened to kill him if he disobeyed
their order; that he did not hit Barbosa anymore because the latter was
already dead; that it was his co-accused who actually killed the three
victims. Again, the declarations of the prosecution witnesses, which were
accorded full credence by the trial court, expose the guilt of Factora beyond
reasonable doubt. In fact, according to Pineda, whose testimony was
corroborated by Marayoc, it was Factora who started the mass assault by
clubbing Carriego treacherously. Fontillas, Halili, Pabarlan and Espino
pointed to Factora as one of the killers of Barbosa, while at least three
prosecution witnesses, namely, Pabarlan, Fontillas and Espino, saw Factora
participate in the slaying of Santos Cruz. The active participation of Factora
in the killing, which is clear index of voluntariness, thus negates his claim of
compulsion and fear allegedly engendered by his co-accused.
Angel Parumog, Gervasio Larita and Florencio Luna take refuge in the
exculpatory device of alibi. Parumog testified that he did not participate in
the killing of the three inmates because he stayed during that entire hapless
day in the office of the trustees for investigation after the fight in the plaza;
that he was implicated in the killing by the prosecution witnesses because of
his refusal to accede to their request to testify against his co-accused; that
he is not a Visayan but a Tagalog from Nueva Ecija. Larita claims that he
did not know about the killing until he was informed that three inmates had
died; that on the day in question he was brought to the police trustee
brigade for investigation after the incident in the plaza; that he was escorted
back to his brigade only in the afternoon. Luna likewise disclaims any
knowledge of the killing and asserts that for the entire duration of the riot he
remained in his cell (brigade 4-A).
The alibis of Parumog, Larita and Luna merit no credence when set against
the positive testimonies of prosecution witness identifying them as
participants in the killing of Barbosa and Santos Cruz. Pabarlan, Espino and
Fontillas declared that Larita was one of the killers of Barbosa; Espino and
Fontillas declared that they saw Larita kill Santos Cruz; Pabarlan, Halili and
Espino testified that they saw Parumog participate in the murder of Barbosa;
Espino, Fontillas and Pabarlan stated that Parumog took part in the killing of
Santos Cruz. Pabarlan and Halili declared that Luna participated in the fatal
assault on Barbosa and Santos Cruz.
The alibis of the accused are thus sufficiently overcome by strong evidence
to the contrary. The defense of alibi is generally weak since it is easy to
concoct. For this reason, courts view it with no small amount of caution, and
accept it only when proved by positive, clear and satisfactory evidence.6 In
the case at bar, if Parumog and Larita were really confined in the police
trustee brigade for investigation on the day of the incident, there should
have been a record of the alleged investigation. But none was presented.
The testimony of Luna that throughout the riot he stayed in his cell is quite
unnatural. He claims that he did not even help his cellmates barricade their
brigade with tarimas in order to delay if not prevent the entry of the invading
inmates. According to him, he "just waited in one corner."
The rule is settled that the defense of alibi is worthless in the face of positive
identification by prosecution witnesses pointing to the accused as particeps
criminis.7 Moreover, the defense of alibi is an issue of fact the resolution of
which depends almost entirely on the credibility of witnesses who seek to
establish it. In this respect the relative weight which the trial judge accords
to the testimony of the witnesses must, unless patently inconsistent without
evidence on record, be accepted.8 In the case at bar, the trial court, in
dismissing the alibis of Parumog, Larita and Luna, said that "their mere
denial cannot prevail over the positive testimony of the witnesses who saw
them participate directly in the execution of the conspiracyto kill Barbosa,
Carriego and Santos Cruz."
The killing of Carriego constitutes the offense of murder because of the
presence of treachery as a qualifying circumstance: Carriego was clubbed
by Factora from behind, and as he lay prostrate and defenseless, Peralta
and Dosal stabbed him repeatedly on the chest. The blow on the nape and
the penetrating chest wounds were all fatal, according to Dr. Bartolome
Miraflor. Abuse of superior strength qualified the killing of Barbosa and
Santos Cruz to the category of murder. The victims, who were attacked
individually were completely overwhelmed by their assailants' superiority in
number and weapons and had absolutely no chance at all to repel or elude
the attack. All the attackers were armed with clubs or sharp instruments
while the victims were unarmed, as so found by the trial court. In fact, Halili
testified that Barbosa was clubbed and stabbed to death while he was trying
to hide under a cot, and Santos Cruz was killed while he was on his knees
pleading for his life.
The essential issue that next confronts us is whether conspiracy attended
the commission of the murders. The resolution of this issue is of marked
importance because upon it depends the quantity and quality of the
penalties that must be imposed upon each of the appellants.
330
For this purpose, it is not amiss to briefly restate the doctrine on conspiracy,
with particular emphasis on the facets relating to its nature, the quantum of
proof required, the scope and extent of the criminal liability of the
conspirators, and the penalties imposable by mandate of applicable law.
Doctrine. A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit
it.9 Generally, conspiracy is not a crime except when the law specifically
provides a penalty therefor as in treason,10 rebellion11 and sedition.12 The
crime of conspiracy known to the common law is not an indictable offense in
the Philippines.13 An agreement to commit a crime is a reprehensible act
from the view-point of morality, but as long as the conspirators do not
perform overt acts in furtherance of their malevolent design, the sovereignty
of the State is not outraged and the tranquility of the public remains
undisturbed. However, when in resolute execution of a common scheme, a
felony is committed by two or more malefactors, the existence of a
conspiracy assumes pivotal importance in the determination of the liability of
the perpetrators. In stressing the significance of conspiracy in criminal law,
this Court in U.S. vs. Infante and Barreto14 opined that
While it is true that the penalties cannot be imposed for the mere act
of conspiring to commit a crime unless the statute specifically
prescribes a penalty therefor, nevertheless the existence of a
conspiracy to commit a crime is in many cases a fact of vital
importance, when considered together with the other evidence of
record, in establishing the existence, of the consummated crime and
its commission by the conspirators.
Once an express or implied conspiracy is proved, all of the conspirators are
liable as co-principals regardless of the extent and character of their
respective active participation in the commission of the crime or crimes
perpetrated in furtherance of the conspiracy because in contemplation of
law the act of one is the act of all.15 The foregoing rule is anchored on the
sound principle that "when two or more persons unite to accomplish a
criminal object, whether through the physical volition of one, or all,
proceeding severally or collectively, each individual whose evil will actively
contributes to the wrong-doing is in law responsible for the whole, the same
as though performed by himself alone."16 Although it is axiomatic that no one
is liable for acts other than his own, "when two or more persons agree or
conspire to commit a crime, each is responsible for all the acts of the others,
done in furtherance of the agreement or conspiracy."17 The imposition of
collective liability upon the conspirators is clearly explained in one
case18 where this Court held that
... it is impossible to graduate the separate liability of each
(conspirator) without taking into consideration the close and
 inseparable relation of each of them with the criminal act, for the
commission of which they all acted by common agreement ... The
crime must therefore in view of the solidarity of the act and intent
which existed between the ... accused, be regarded as the act of the
band or party created by them, and they are all equally responsible
...
Verily, the moment it is established that the malefactors conspired and
confederated in the commission of the felony proved, collective liability of
the accused conspirators attaches by reason of the conspiracy, and the
court shall not speculate nor even investigate as to the actual degree of
participation of each of the perpetrators present at the scene of the crime.
Of course, as to any conspirator who was remote from the situs of
aggression, he could be drawn within the enveloping ambit of the conspiracy
if it be proved that through his moral ascendancy over the rest of the
conspirators the latter were moved or impelled to carry out the conspiracy.
In fine, the convergence of the wills of the conspirators in the scheming and
execution of the crime amply justifies the imputation to all of them the act of
any one of them. It is in this light that conspiracy is generally viewed not as
a separate indictable offense, but a rule for collectivizing criminal liability.
The ensnaring nature of conspiracy is projected in bold relief in the cases of
malversation and rape committed in furtherance of a common design.
The crime of malversation is generally committed by an accountable public
officer who misappropriates public funds or public property under his
trust.19 However, in the classic case of People vs. Ponte20 this Court
unequivocally held that a janitor and five municipal policemen, all of whom
were not accountable public officers, who conspired and aided a municipal
treasurer in the malversation of public funds under the latter's custody, were
principally liable with the said municipal treasurer for the crime of
malversation. By reason of conspiracy, the felonious act of the accountable
public officer was imputable to his co-conspirators, although the latter were
not similarly situated with the former in relation to the object of the crime
committed. Furthermore, in the words of Groizard, "the private party does
not act independently from the public officer; rather, he knows that the funds
of which he wishes to get possession are in the latter's charge, and instead
of trying to abstract them by circumventing the other's vigilance he resorts to
corruption, and in the officer's unfaithfulness seeks and finds the most
reprehensible means of accomplishing a deed which by having a public
officer as its moral instrument assumes the character of a social crime."21 In
an earlier case22 a non-accountable officer of the Philippine Constabulary
who conspired with his superior, a military supply officer, in the malversation
of public funds was adjudged guilty as co-principal in the crime of
malversation, although it was not alleged, and in fact it clearly appeared,
331
that the funds misappropriated were not in his custody but were under the
trust of his superior, an accountable public officer.
In rape, a conspirator is guilty not only of the sexual assault he personally
commits but also of the separate and distinct crimes of rape perpetrated by
his co-conspirators. He may have had carnal knowledge of the offended
woman only once but his liability includes that pertaining to all the rapes
committed in furtherance of the conspiracy. Thus, in People vs. Villa,23 this
Court held that
... from the acts performed by the defendants front the time they
arrived at Consolacion's house to the consummation of the offense
of rape on her person by each and everyone of them, it clearly
appears that they conspired together to rape their victim, and
therefore each one is responsible not only for the rape committed
personally by him, but also that committed by the others, because
each sexual intercourse had, through force, by each one of the
defendants with the offended was consummated separately and
independently from that had by the others, for which each and every
one is also responsible because of the conspiracy.
The rule enunciated in People vs. Villa was reiterated in People vs.
Quitain24 where the appellant Teofilo Anchita was convicted of forcible
abduction with double rape for having conspired and cooperated in the
sexual assault of the aggrieved woman, although he himself did not actually
rape the victim. This Court observed:
We have no doubt all in all that Teofilo Anchita took part in the
sexual assault ... the accused inserted his fingers in the woman's
organ, and widened it. Whether he acted out of lewdness or to help
his brother-in-law consummate the act, is immaterial; it was both
maybe. Yet, surely, by his conduct, this prisoner conspired and
cooperated, and is guilty.
With respect to robbery in band, the law presumes the attendance of
conspiracy so much so that "any member of a band who is present at the
commission of a robbery by the band, shall be punished as principal of any
of the assaults committed by the band, unless it be shown that he attempted
to prevent the same."25 In this instance, conspiracy need not be proved, as
long as the existence of a band is clearly established. Nevertheless, the
liability of a member of the band for the assaults committed by his group is
likewise anchored on the rule that the act of one is the act of all.
Proof of conspiracy. While conspiracy to commit a crime must be
established by positive evidence,26 direct proof is not essential to show
conspiracy.27 Since by it nature, conspiracy is planned in utmost secrecy, it
can seldom be proved by direct evidence.28 Consequently, competent and
convincing circumstantial evidence will suffice to establish conspiracy.
According to People vs. Cabrera,29 conspiracies are generally proved by a
number of indefinite acts, conditions, and circumstances which vary
according to the purposes to be accomplished. If it be proved that the
defendants pursued by their acts the same object, one performing one part
and another another part of the same, so as to complete it, with a view to
the attainment of the same object, one will be justified in the conclusion that
they were engaged in a conspiracy to effect the object." Or as elucidated
in People vs. Carbonel30the presence of the concurrence of minds which is
involved in conspiracy may be inferred from "proofs of facts and
circumstances which, taken together, apparently indicate that they are
merely parts of some complete whole. If it is proved that two or more
persons aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their acts, though apparently
independent, were in fact connected and cooperative, indicating a closeness
of personal association and a concurrence of sentiment, a conspiracy may
be inferred though no actual meeting among to concert means is proved ..."
In two recent cases,31 this Court ruled that where the acts of the accused,
collectively and individually, clearly demonstrate the existence of a common
design toward the accomplishment of the same unlawful purpose,
conspiracy is evident.
Conspiracy presupposes the existence of a preconceived plan or
agreement; however, to establish conspiracy, "it is not essential that there
be proof as to previous agreement to commit a crime, it being sufficient that
the malefactors committed shall have acted in concert pursuant to the same
objective."32 Hence, conspiracy is proved if there is convincing evidence to
sustain a finding that the malefactors committed an offense in furtherance of
a common objective pursued in concert.
Liability of conspirators. A time-honored rule in the corpus of our
jurisprudence is that once conspiracy is proved, all of the conspirators who
acted in furtherance of the common design are liable as co-principals.33 This
rule of collective criminal liability emanates from the ensnaring nature of
conspiracy. The concerted action of the conspirators in consummating their
common purpose is a patent display of their evil partnership, and for the
consequences of such criminal enterprise they must be held solidarity liable.
However, in order to hold an accused guilty as co-principal by reason of
conspiracy, it must be established that he performed an overt act in
furtherance of the conspiracy, either by actively participating in the actual
commission of the crime, or by lending moral assistance to his co-
conspirators by being present at the scene of the crime, or by exerting moral
ascendancy over the rest of the conspirators as to move them to executing
332
the conspiracy. The difference between an accused who is a principal under
any of the three categories enumerated in Art. 17 of the Revised Penal
Code and a co-conspirator who is also a principal is that while the former's
criminal liability is limited to his own acts, as a general rule, the latter's
responsibility includes the acts of his fellow conspirators.
In People vs. Izon, et al.,34 this Court acquitted appellant Francisco Robles,
Jr., who was convicted by the trial court of robbery with homicide as a
conspirator, on the ground that although he may have been present when
the conspiracy to rob was proposed and made, "Robles uttered not a word
either of approval or disapproval. There are authorities to the effect that
mere presence at the discussion of a conspiracy, even approval of it,
without any active participation in the same, is not enough for purposes of
conviction." In a more recent case,35this Court, in exonerating one of the
appellants, said:
There is ample and positive evidence on record that appellant Jose
Guico was absent not only from the second meeting but likewise
from the robbery itself. To be sure, not even the decision under
appeal determined otherwise. Consequently, even if Guico's
participation in the first meeting sufficiently involved him with the
conspiracy (as he was the one who explained the location of the
house to be robbed in relation to the surrounding streets and the
points thereof through which entrance and exit should be effected),
such participation and involvement, however, would be inadequate
to render him criminally liable as a conspirator. Conspiracy alone,
without the execution of its purpose, is not a crime punishable by
law, except in special instances (Article 8, Revised Penal Code)
which, however, do not include robbery.
Imposition of multiple penalties where conspirators commit more than one
offense. Since in conspiracy, the act of one is the act of all, then, perforce,
each of the conspirators is liable for all of the crimes committed in
furtherance of the conspiracy. Consequently, if the conspirators commit
three separate and distinct crimes of murder in effecting their common
design and purpose, each of them is guilty of three murders and shall suffer
the corresponding penalty for each offense. Thus in People vs. Masin,36 this
Court held:
... it being alleged in the information that three crimes were
committed not simultaneously indeed but successively, inasmuch as
there was, at least, solution of continuity between each other, the
accused (seven in all) should be held responsible for said crimes.
This court holds that the crimes are murder ... In view of all these
circumstances and of the frequently reiterated doctrine that once
conspiracy is proven each and every one of the conspirators must
 answer for the acts of the others, provided said acts are the result of
the common plan or purpose ... it would seem evident that the
penalty that should be imposed upon each of the appellants for each
of their crimes should be the same, and this is the death penalty ...
(emphasis supplied).
In the aforesaid case, however, the projected imposition of three death
penalties upon each of the conspirators for the three murders committed
was not carried out due to the lack of the then requisite unanimity in the
imposition of the capital penalty.
In another case,37 this Court, after finding that conspiracy attended the
commission of eleven murders, said through Mr. Justice Tuason:
Some members of this Court opine that the proper penalty is death,
under the circumstances of the case, but they fall short of the
required number for the imposition of this punishment. The sentence
consequently is reclusion perpetua; but each appellant is guilty of as
many crimes of murder as there were deaths (eleven) and should be
sentenced to life imprisonment for each crime, although this may be
a useless formality for in no case can imprisonment exceed forty
years. (Emphasis supplied.)
In People vs. Masani,38 the decision of the trial court imposing only one life
imprisonment for each of the accused was modified by this Court on appeal
on the ground that "inasmuch as their (the conspirators') combined attack
resulted in the killing of three persons, they should be sentenced to suffer
said penalty (reclusion perpetua) for each of the three victims (crimes)."
(Emphasis supplied.)
It is significant to note that in the abovementioned cases, this Court
consistently stressed that once conspiracy is ascertained, the culpability of
the conspirators is not only solidary (all co-principals) but also multiple in
relation to the number of felonies committed in furtherance of the
conspiracy. It can also be said that had there been a unanimous Court in
the Masin and Macaso cases, multiple death penalties would have been
imposed upon all the conspirators.
Legality and practicality of imposing multiple death penalties upon
conspirators. An accused who was charged with three distinct crimes of
murder in a single information was sentenced to two death penalties for two
murders,39 and another accused to thirteen (13) separate death penalties for
the 13 killings he perpetrated.40 Therefore there appears to be no legal
reason why conspirators may not be sentenced to multiple death penalties
corresponding to the nature and number of crimes they commit in
333
furtherance of a conspiracy. Since it is the settled rule that once conspiracy
is established, the act of one conspirator is attributable to all, then each
conspirator must be held liable for each of the felonious acts committed as a
result of the conspiracy, regardless of the nature and severity of the
appropriate penalties prescribed by law.
The rule on the imposition of multiple penalties where the accused is found
guilty of two or more separate and distinct crimes charged in one
information, the accused not having interposed any objection to the
multiplicity of the charges, was enunciated in the leading case of U.S. vs.
Balaba,41 thus: Upon conviction of two or more offenses charged in the
complaint or information, the prescribed penalties for each and all of such
offenses may be imposed, to be executed in conformity with the provisions
of article 87 of the Penal Code [now article 70 of the Revised Penal Code].
In other words, all the penalties corresponding to the several violations of
law should be imposed. Conviction for multiple felonies demands the
imposition of multiple penalties.
The two conceptual exceptions to the foregoing rule, are the complex crime
under article 48 of the Revised Penal Code and the special complex crime
(like robbery with homicide). Anent an ordinary complex crime falling under
article 48, regardless of the multiplicity of offenses committed, there is only
one imposable penalty — the penalty for the most serious offense applied in
its maximum period. Similarly, in special complex crimes, there is but a
single penalty prescribed by law notwithstanding the number of separate
felonies committed. For instance, in the special complex crime of robbery
with hommicide the imposible penalty is reclusion perpetua to
death42 irrespective of the number of homicides perpetrated by reason or on
occasion of the robbery.
In Balaba, the information charged the accused with triple murder. The
accused went to trial without objection to the said information which charged
him with more than one offense. The trial court found the accused guilty of
two murders and one homicide but it imposed only one death penalty. In its
review en consulta, this Court modified the judgment by imposing separate
penalties for each of the three offenses committed. The Court, thru Mr.
Justice Carson (with Mr. Justice Malcolm dissenting with respect to the
imposition of two death penalties), held:
The trial judge was erroneously of the opinion that the prescribed
penalties for the offenses of which the accused was convicted
should be imposed in accord with the provisions of article 89 of the
Penal Code. That article is only applicable to cases wherein a single
act constitutes two or more crimes, or when one offense is a
necessary means for committing the other. (U.S. vs. Ferrer, 1 Phil.
Rep., 56)
 It becomes our duty, therefore, to determine what penalty or
penalties should have been imposed upon the accused upon
conviction of the accused of three separate felonies charged in the
information.
There can be no reasonable doubt as to the guilt of the convict of
two separate crimes of asesinato (murder) marked with the generic
aggravating circumstances mentioned in the decision of the trial
judge ... It follows that the death penalty must and should be
imposed for each of these offenses ...
Unless the accused should be acquitted hereafter on appeal of one
or both the asesinatos with which he is charged in the information, it
would seem to be a useless formality to impose separate penalties
for each of the offenses of which he was convicted, in view of the
nature of the principal penalty; but having in mind the possibility that
the Chief Executive may deem it proper to grant a pardon for one or
more of the offenses without taking action on the others; and having
in mind also the express provisions of the above cited article 87 of
the Penal Code, we deem it proper to modify the judgment entered
in the court below by substituting for the penalty imposed by the trial
judge under the provisions of article 89 of the Code, the death
penalty prescribed by law for each of the two separate asesinatos of
which he stands convicted, and the penalty of 14 years, 8 months
and 1 day of reclusion temporal (for the separate crime of homicide)
... these separate penalties to be executed in accord with the
provisions of article 87 of the Penal Code. (Emphasis supplied.)
The doctrine in Balaba was reiterated in U.S. vs. Jamad43 where a
unanimous Court, speaking again thru Mr. Justice Carson (with Mr. Justice
Malcolm concurring in the result in view of the Balaba ruling), opined:
For all the offenses of which the accused were convicted in the court
below, the trial judge imposed the death penalty, that is to say the
penalty prescribed for the most serious crime committed, in its
maximum degree, and for this purpose made use of the provisions
of article 89 of the Penal Code [now article 48 of the Revised Penal
Code]. But as indicated in the case of the United States vs. Balaba,
recently decided wherein the controlling facts were substantially
similar to those in the case at bar, "all of the penalties corresponding
to the several violations of law" should have been imposed under
the express provisions of article 87 [now engrafted in article 70 of
the Revised Penal Code] and under the ruling in that case, the trial
court erred in applying the provision of article 89 of the code.
334
We conclude that the judgment entered in the court below should be
reversed, ... and that the following separate penalties should be
imposed upon him [the accused Jamad], to be executed in
accordance with article 87 of the Penal Code: (1) The penalty of
death for the parricide of his wife Aring; (2) the penalty of life
imprisonment for the murder of Labonete; (3) the penalty of life
imprisonment for the murder of Torres; (4) the penalty of 12 years
and one day of cadena temporal for the frustrated murder of Taclind
...
The doctrine in Balaba was reechoed in People vs. Guzman,44 which applied
the pertinent provisions of the Revised Penal Code, where this Court, after
finding the accused liable as co-principals because they acted in conspiracy,
proceeded to stress that where an "information charges the defendants with
the commission of several crimes of murder and frustrated murder, as they
failed to object to the multiplicity of the charges made in the
information, they can be found guilty thereof and sentenced accordingly for
as many crimes the information charges them, provided that they are duly
established and proved by the evidence on record." (Emphasis supplied.)
The legal and statutory justification advanced by the majority in Balaba for
imposing all the penalties (two deaths and one life imprisonment)
corresponding to the offense charged and proved was article 87 of the old
Penal Code which provided:
When a person is found guilty of two or more felonies or
misdemeanors, all the penalties corresponding to the several
violations of law shall be imposed, the same to be simultaneously
served, if possible, according to the nature and effects of such
penalties.
in relation to article 88 of the old Code which read:
When all or any of the penalties corresponding to the several
violations of the law can not be simultaneously executed, the
following rules shall be observed with regard thereto:
1. In the imposition of the penalties, the order of their respective
severity shall be followed so that they may be executed successively
or as nearly as may be possible, should a pardon have been granted
as to the penalty or penalties first imposed, or should they have
been served out.
The essence and language, with some alterations in form and in the words
used by reason of style, of the above-cited provisions have been preserved
in article 70 of the Revised Penal Code which is the product of the merger of
articles 87 and 88 of the old Penal Code. Article 70 provides:
When the culprit has to serve two or more penalties, he shall serve
them simultaneously if the nature of the penalties will so permit;
otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective
severity shall be followed so that they may be executed successively
or as nearly as may be possible, should a pardon have been granted
as to the penalty or penalties first imposed, or should they have
been served out.
Although article 70 does not specifically command, as the former article 87
clearly did, that "all the penalties corresponding to the several violations of
law shall be imposed," it is unmistakable, however, that article 70
presupposes that courts have the power to impose multiple penalties, which
multiple penal sanctions should be served either simultaneously or
successively. This presumption of the existence of judicial power to impose
all the penalties corresponding to the number and nature of the offenses
charged and proved is manifest in the opening sentence of article 70: "When
the culprit has to serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so permit ..." (Emphasis
supplied.) Obviously, the two or more penalties which the culprit has to
serve are those legally imposed by the proper court. Another reference to
the said judicial prerogative is found in the second paragraph of article 70
which provides that "in the imposition of the penalties, the order of their
respective severity shall be followed ..." Even without the authority provided
by article 70, courts can still impose as many penalties as there are
separate and distinct offenses committed, since for every individual crime
committed, a corresponding penalty is prescribed by law. Each single crime
is an outrage against the State for which the latter, thru the courts ofjustice,
has the power to impose the appropriate penal sanctions.
With respect to the imposition of multiple death penalties, there is no
statutory prohibition or jurisprudential injunction against it. On the contrary,
article 70 of the Revised Penal Code presumes that courts have the power
to mete out multiple penalties without distinction as to the nature and
severity of the penalties. Moreover, our jurisprudence supports the
imposition of multiple death penalties as initially advocated in Balaba and
thunderously reechoed in Salazar where the accused was sentenced on
appeal to thirteen (13) death penalties. Significantly, the Court
in Balaba imposed upon the single accused mixed multiple penalties of two
deaths and one life imprisonment.
335
The imposition of multiple death penalties is decried by some as a useless
formality, an exercise in futility. It is contended, undeniably enough, that a
death convict like all mortals, has only one life to forfeit. And because of this
physiological and biological attribute of man, it is reasoned that the
imposition of multiple death penalties is impractical and futile because after
the service of one capital penalty, the execution of the rest of the death
penalties will naturally be rendered impossible. The foregoing opposition to
the multiple imposition of death penalties suffers from four basic flaws: (1) it
fails to consider the legality of imposing multiple capital penalties; (2) it fails
to distinguish between imposition of penalty and service of sentence; (3) it
ignores the fact that multiple death sentences could be served
simultaneously; and (4) it overlooks the practical merits of imposing multiple
death penalties.
The imposition of a penalty and the service of sentence are two distinct,
though related, concepts. The imposition of the proper penalty or penalties
is determined by the nature, gravity and number of offenses charged and,
proved, whereas service of sentence is determined by the severity and
character of the penalty or penalties imposed. In the imposition of the proper
penalty or penalties, the court does not concern itself with the possibility or
practicality of the service of the sentence, since actual service is a
contingency subject to varied factors like successful escape of the convict,
grant of executive clemency or natural death of the prisoner. All that go into
the imposition of the proper penalty or penalties, to reiterate, are the nature,
gravity and number of the offenses charged and proved and the
corresponding penalties prescribed by law.
Multiple death penalties are not impossible to serve because they will have
to be executed simultaneously. A cursory reading of article 70 will show that
there are only two modes of serving two or more (multiple)
penalties: simultaneously or successively. The first rule is that two or more
penalties shall be served simultaneously if the nature of the penalties will so
permit. In the case of multiple capital penalties, the nature of said penal
sanctions does not only permit but actually necessitates simultaneous
service.
The imposition of multiple death penalties, far from being a useless
formality, has practical importance. The sentencing of an accused to several
capital penalties is an indelible badge of his extreme criminal perversity,
which may not be accurately projected by the imposition of only one death
sentence irrespective of the number of capital felonies for which he is liable.
Showing thus the reprehensible character of the convict in its real
dimensions, the possibility of a grant of executive clemency is justifiably
reduced in no small measure. Hence, the imposition of multiple death
penalties could effectively serve as a deterrent to an improvident grant of
pardon or commutation. Faced with the utter delinquency of such a convict,
the proper penitentiary authorities would exercise judicious restraint in
recommending clemency or leniency in his behalf.
Granting, however, that the Chief Executive, in the exercise of his
constitutional power to pardon (one of the presidential prerogatives which is
almost absolute) deems it proper to commute the multiple death penalties to
multiple life imprisonments, then the practical effect is that the convict has to
serve the maximum of forty (40) years of multiple life sentences. If only one
death penalty is imposed, and then is commuted to life imprisonment, the
convict will have to serve a maximum of only thirty years corresponding to a
single life sentence.
Reverting now to the case at bar, it is our considered view that the trial court
correctly ruled that conspiracy attended the commission of the murders. We
quote with approval the following incisive observations of the court a quo in
this respect:
Although, there is no direct evidence of conspiracy, the Court can
safely say that there are several circumstances to show that the
crime committed by the accused was planned. The following
circumstances show beyond any doubt the acts of conspiracy: First,
all those who were killed, Barbosa, Santos Cruz and Carriego, were
Tagalogs. Although there were many Tagalogs like them confined in
Building 4, these three were singled out and killed thereby showing
that their killing has been planned. Second, the accused were all
armed with improvised weapons showing that they really prepared
for the occasion. Third, the accused accomplished the killing with
team work precision going from one brigade to another and
attacking the same men whom they have previously marked for
liquidation and lastly, almost the same people took part in the killing
of Carriego, Barbosa and Santos Cruz.
It is also important to note that all the accused were inmates of brigade 4-A;
that all were from either the Visayas or Mindanao except Peralta who is from
Masbate and Parumog who hails from Nueva Ecija; that all were either
"OXO" members or sympathizers; and that all the victims were members of
the "Sigue-Sigue" gang.
The evidence on record proves beyond peradventure that the accused
acted in concert from the moment they bolted their common brigade, up until
the time they killed their last victim, Santos Cruz. While it is true that
Parumog, Larita and Luna did not participate in the actual killing of Carriego,
nonetheless, as co-conspirators they are equally guilty and collectively liable
for in conspiracy the act of one is the act of all. It is not indispensable that a
co-conspirator should take a direct part in every act and should know the
336
part which the others have to perform. Conspiracy is the common design to
commit a felony; it is not participation in all the details of the execution of the
crime. All those who in one way or another help and cooperate in the
consummation of a felony previously planned are co-principals.45 Hence, all
of the six accused are guilty of the slaughter of Carriego, Barbosa and
Santos Cruz — each is guilty of three separate and distinct crimes of
murder.
We cannot agree, however, with the trial court that evident premeditation
was also present. The facts on record and the established jurisprudence on
the matter do not support the conclusion of the court a quo that evident
premeditation "is always present and inherent in every conspiracy." Evident
premeditation is not inherent in conspiracy as the absence of the former
does not necessarily negate the existence of the latter.46 Unlike in evident
premeditation where a sufficient period of time must elapse to afford full
opportunity for meditation and reflection for the perpetrator to deliberate on
the consequences of his intended deed, conspiracy arises at the very
instant the plotters agree, expressly or impliedly, to commit the felony and
forthwith decide to commit it.47 This view finds added support in People vs.
Custodia,48 wherein this Court stated:
Under normal conditions, where the act of conspiracy is directly
established, with proof of the attendant deliberation and selection of
the method, time and means of executing the crime, the existence of
evident premeditation can be taken for granted. In the case before
us, however, no such evidence exists; the conspiracy is merely
inferred from the acts of the accused in the perpetration of the crime.
There is no proof how and when the plan to kill Melanio Balancio
was hatched, or what time elapsed before it was carried out; we are,
therefore, unable to determine if the appellants enjoyed "sufficient
time between its inception and its fulfillment dispassionately to
consider and accept the consequences." (cf. People vs. Bangug, 52
Phil. 91.) In other words, there is no showing of the opportunity of
reflection and the persistence in the criminal intent that characterize
the aggravating circumstance of evident premeditation (People vs.
Mendoza, 91 Phil. 58; People vs. Iturriaga, 47 Off. Gaz., [Supp to
No. 12] 166; People vs. Lesada 70 Phil., 525.)
Not a single extenuating circumstance could be appreciated in favor of any
of the six accused, as they did neither allege nor prove any.
In view of the attendance of the special aggravating circumstance of quasi-
recidivism, as all of the six accused at the time of the commission of the
offenses were serving sentences49 in the New Bilibid Prison at Muntinlupa
by virtue of convictions by final judgments the penalty for each offense must
be imposed in its maximum period, which is the mandate of the first
paragraph of article 160 of the Revised Penal Code. Viada observes, in
apposition, that the severe penalty imposed on a quasi-recidivist is justified
because of his perversity and incorrigibility.50
ACCORDINGLY, the judgment a quo is hereby modified as follows: Amadeo
Peralta, Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio Larita
and Florencio Luna are each pronounced guilty of three separate and
distinct crimes of murder, and are each sentenced to three death penalties;
all of them shall, jointly and severally, indemnify the heirs of each of the
three deceased victims in the sum of P12,000;51 each will pay one-sixth of
the costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Sanchez, Castro,
Angeles, Fernando and Capistrano, JJ.,concur.
Zaldivar, J., is on leave.
EN BANC
G.R. No. L-2189 November 3, 1906
THE UNITED STATES,Plaintiff-Appellee,
vs. FRANCISCO BAUTISTA, ET AL.,Defendants-
Appellants.
Aguedo Velarde and Pineda and Escueta, for
appellants.
Office of the Solicitor-General Araneta, for appellee.
CARSON, J.:
The appellants in this case was convicted in the
Court of First Instance of Manila of the crime of
conspiracy to overthrow, put down, and destroy by
force the Government of the United States in the
337
Philippine Islands and the Government of the
Philippine Islands, as defined and penalized in
section 4 of Act No. 292 of the Philippine
Commission. chanroblesv irt ualawli bra ry chan roble s virtual law l ibra ry
The appellant Francisco Bautista was sentenced to
four years' imprisonment, with hard labor, and
$3,000 fine, and Aniceto de Guzman and Tomas
Puzon, and each of them, to three years'
imprisonment, with hard labor, and a fine of
$2,000, and all and each of the said appellants to
pay their proportionate share of the costs of the
trial and to undergo subsidiary imprisonment in the
event of insolvency and failure to pay their
respective fines. chanroblesvi rt ualawlib rary chanrobles vi rt ual law li bra ry
The evidence of record conclusively establishes that
during the latter part of the year 1903 a junta was
organized and a conspiracy entered into by a
number of Filipinos, resident in the city of
Hongkong, for the purpose of overthrowing the
Government of the United States in the Philippine
Islands by force of arms and establishing in its
stead a government to be known as theRepublica
Universal Democratica Filipina; that one Prim Ruiz
was recognized as the titular head of this
conspiracy and one Artemio Ricarte as chief of the
military forces to the organized in the Philippines in
the furtherance of the plans of the conspirators;
that toward the end of December, 1903 the said
Ricarte came to Manila from Hongkong in hidding
on board the steamshipYuensang; that after his
arrival in the Philippines he held a number of
meetings in the city of Manila and the adjoining
provinces whereat was perfected the above- It further appears that the appellant, Tomas Puzon,
mentioned conspiracy hatched in Hongkong that at united with the conspirators through the agency of
these meetings new members were taken into the one Jose R. Muñoz, who was proven to have been a
conspiracy and plans made for the enlistment of an prime leader of the movement, in the intimate
army of revolution and the raising of money by confidence of Ricarte, and by him authorized to
national and private loans to carry on the distribute bonds and nominate and appoint certain
campaign; that to this end bonds were issued and officials, including a brigadier-general of the signal
commissions as officers in the revolutionary army corps of the proposed revolutionary forces; that at
were granted to a number of conspirators, the time when the conspiracy was being brought to
empowering the officers thus appointed to raise a head in the city of Manila, Puzon held several
troops and take command thereof; and that the conferences with the said Muñoz whereat plans
conspirators did in fact take the field and offered were made for the coming insurrection; that at one
armed resistance to the constituted authorities in of these conferences Muñoz offered Puzon a
the Philippines, only failing in their design of commission as brigadier-general of the signal corps
overthrowing the Government because of their and undertook to do his part in organizing the
failure to combat successfully with the officers of troops; and that at a later conference he assured
the law who were sent against them and of the the said Muñoz that he had things in readiness,
failure of the people to rise en masse in response to meaning thereby that he had duly organized in
their propaganda. chanroble svirtualawl ibra ry chan roble s vi rtual law lib rary accordance with the terms of his commission. chanroble svirtualawl ibra ry chan roble s virtual law l ib rary

It further appears from the evidence that the Puzon at the trial declared that he had never united
appellant Francisco Bautista, a resident of the city himself with the conspirators; that he had accepted
of Manila, was an intimate friend of the said the appointment as brigadier-general of the signal
Ricarte; that Ricarte wrote and notified Bautista of corps of the revolutionary forces with no intention
his coming to Manila and that, to aid him in his of ever taking any further action in the matter, and
journey, Bautista forwarded to him secretly 200 merely because he did not wish to vex his friend
pesos; that after the arrival of Ricarte, Bautista was Muñoz by refusing to do so, and that when Muñoz
present, taking part in several of the above- offered him the appointment as brigadier-general
mentioned meetings whereat the plans of the he did so in "a joking tone," and that he, Puzon, did
conspirators were discussed and perfected, and not know that Ricarte was in Manila organizing the
that at one of these meetings Bautista, in answer to conspiracy at that time.chanroblesv irt ualawli bra ry chan roble s virtual law l ibra ry

a question of Ricarte, assured him that the

necessary preparations had been made and that he These statements, however (except in so far as
"held the people in readiness." chanrobles vi rtua l law lib ra ry
they corroborate the testimony of Muñoz as to the
338
fact that he had several interviews with Puzon at Q. What is the employment ( empleo) which you
which plans were entered into for the advancement have in this organization, and who is it who invited
of the cause of the conspirators), can not be you to join it? - A. J. R. Muñoz, who is general of
accepted as true in the light of a written statement division of this new organization, spoke to me with
signed by Puzon himself at the time when he was much instance, asking me to accept employment as
first arrested, part of which is as follows: brigadier-general, chief of signal corps, to which I,
on account of his request and in view of the fact
Q. What is your name and what is your age, that the said Muñoz is a friend of mine from my
residence, and occupation? - A. My name is Tomas youth, acceded; nevertheless I have organized
Puzon; born in Binondo in the Province of Manila; absolutely nothing in respect to this matter. chanroblesvi rtua lawlib rary c hanro bles vi rtua l law li bra ry

37 years of age; married; by profession a teacher

of primary and secondary schools, and residing in Q. Did you accept the employment and did they
Calle Concepcion, No. 195, district of Quiapo. chanroblesvi rt ualawlib ra ry chanrobles vi rt ual law li bra ry give you any commission for it? - A. Yes, sir; I
accepted said employment and although they gave
Q. Do you know Artemio Ricarte? - A. Personally I me an order to organize in my brigade I did not do
do not know him, but by name, yes. chanrob lesvi rtualaw lib rary cha nrob les vi rtua l law lib rary

it, because I had neither the confidence nor the

will.
Q. Did you have any information that Ricarte was in
cha nrob lesvi rtua lawlib rary cha nrob les vi rtua l law lib rary

these Islands and with what object he came here? Q. If you didn't have faith in the said authorization
And if you know it to be true, through whom did nor the will to carry out what was intrusted to you,
you get such information? - A. In the first place I why did you accept employment as general of the
had notice of his coming to the Islands as well as brigade? - A. I accepted it on account of friendship
his object by reading the newspapers of Manila, and and not to vex a friend, but I never have the
secondly because J. R. Muñoz told me the same on intention of fulfilling the obligations.
one occasion when I was in his house to visit
him.chanroble svi rtualawl ib rary chan rob les vi rtual law lib rary Puzon, when on the stand in his own behalf, did not
deny that he made this statement, but he
Q. Did you acquire this information through any attempted to explain it away by saying that when
other person? - A. No, sir; I have no more he made it he was so exited that he did not know
information than that which I have mentioned. chanroblesvi rt ualawlib ra ry chan robles v irt ual law li bra ry

just what he was saying. He does not allege that

improper means were taken to procure the
Q. Are you a part of his new revolution presided confession, and it was proven at the trial that it was
over by Ricarte? - A. Yes, sir. chanrob lesvi rtua lawlib rary cha nro bles vi rtua l law lib ra ry

freely and voluntarily made and not the result of

violence, intimidation, threat, menace, or promise

339
of reward or leniency. The accused appears to be
an intelligent man and was for eighteen years a
school-teacher and later a telegraph operator under
the Spanish Government, and during the
insurrection he held a commission as an officer in
the signal corps of the revolutionary army. His
confession is clear and intelligible and in no way
supports his pretense that he was so excited as not
to know what he was saying when he made it, and
its truth and accuracy in so far it inculpates him is
sustained by other evidence of record in this
case.chanroblesvi rtua lawlib rary cha nro bles vi rtua l law lib ra ry
It is contended that the acceptance or possession of
an appointment as an officer of the military forces
of the conspiracy should not be considered as
evidence against him in the light of the decisions of
this court in the cases of the United
States vs. Antonio de los Reyes 1 (2 Off. Gaz.,
364), United Statesvs. Silverio Nuñez et al. 2 (3 Off.
Gaz., 408), the United States vs. Eusebio de la
Serna et al. 3 (3 Off. Gaz., 528), and United
States vs. Bernardo Manalo et al. 4 (4 Off. Gaz.,
570). But the case at bar is to be distinguished
from these and like cases by the fact that the
record clearly disclose that the accused actually and
voluntarily accepted the apppointment in question
and in doing so assumed all the obligations implied
by such acceptance, and that the charge in this
case is that of conspiracy, and the fact that the
accused accepted the appointment is taken into
consideration merely as evidence of his criminal
relations with the conspirators. In the first of these
cases - the United States vs. De los Reyes - the
340
accused was charged with treason, and the court
found that the mere acceptance of a commission by
the defendant, nothing else being done either by
himself or by his companions, was not an "overt
act" of treason within the meaning of the law, but
the court further expressly held that -
That state of affairs disclosed body of evidence, . . .
the playing of the game of government like
children, the secretaries, colonels, and captains,
the pictures of flags and seals and commission, all
on proper, for the purpose of duping and
misleading the ignorant and the visionary . . .
should not be dignified by the name of treason.
In the second case - the United States vs. Nuñez et
al. -- wherein the accused were charged with
brigandage, the court held that, aside from the
possession of commissions in an insurgent band,
there was no evidence to show that it they had
committed the crime and, "moreover, that it
appeared that they had never united with any party
of brigands and never had been in any way
connected with such parties unless the physical
possession of these appointments proved such
relation," and that it appeared that each one of the
defendants "were separately approached at
different times by armed men while working in the
field and were virtually compelled to accept the
commissions." chanrobles vi rt ual law li bra ry
In the case of the United States vs. de la Serna et
al. it was contended that de la Serna had confessed
that "he was one of the members of the pulajanes,
with a commission as colonel," but the court was of
opinion that the evidence did not sustain a finding
that such confession had in fact been made, hence
the doctrine laid down in that decision, "that the
mere possession of such an appointment, when it is
not shown that the possessor executed some
external act by the virtue of the same, does not
constitute sufficient proof of the guilt of the
defendant," applies only the case of Enrique
Camonas, against whom the only evidence of
record was "the fact that a so-called appointment of
sergeant was found at his house." chanroble s virtual law li bra ry
In the case of the United States vs. Bernardo
Manalo et al. there was testimony that four
appointments of officials in a revolutionary army
were found in a trunk in the house of one Valentin
Colorado, and the court in said case reaffirmed the
doctrine that "the mere possession of the
documents of this kind is not sufficient to convict,"
and held, furthermore, that there was "evidence in
the case that at the time these papers were
received by the appellant, Valentin Colorado, he
went to one of the assistant councilmen of the
barrio in which lived, a witness for the Government,
showed him the envelope, and stated to him he had
received these papers; that he didn't know what
they were and requested this councilman to open
them. The coucilman did not wish to do that but
took the envelope and sent it to the councilman
Jose Millora. We are satisfied that this envelope
contained the appointments in question and that
the appellant did not act under the appointment but
341
immediately reported the receipt of them to the
authorities."chanroble s virtual law lib rary
It is quite conceivable that a group of conspirators
might appoint a person in no wise connected with
them to some high office in the conspiracy, in the
hope that such person would afterwards accept the
commission and thus unite himself with them, and
it is even possible that such an appointment might
be forwarded in the mail or otherwise, and thus
come into the possession of the person thus
nominated, and that such appointment might be
found in his possession, and, notwithstanding all
this, the person in whose possession the
appointment was found might be entirely innocent
of all intention to join the conspiracy, never having
authorized the conspirators to use his name in this
manner nor to send such a commission to him.
Indeed, cases are not unknown in the annals of
criminal prosecutions wherein it has been proven
that such appointments have been concealed in the
baggage or among the papers of the accused
persons, so that when later discovered by the
officers of the law they might be used as evidence
against the accused. But where a genuine
conspiracy is shown to have existed as in this case,
and it is proven that the accused voluntarily
accepted an appointment as an officer in that
conspiracy, we think that this fact may properly be
taken into consideration as evidence of his relations
with the conspirators. chanroblesvi rtua lawlib rary c hanro bles vi rt ual law li bra ry
Counsel for appellants contend that the
constitutional provision requiring the testimony of
at least two witnesses to the same overt act, or proportionate share of the costs of both
confession in open court, to support a conviction for instances de oficio, and that the said Anecito de
the crime of treason should be applied in this case, Guzman should be acquitted of the crime with
but this court has always held, in conformance with which he is charged and set a liberty forthwith, and
the decisions of the Federal courts of the United that the judgment and sentence of the trial court,
States, that the crime of conspiring to commit in so far as it applies to Francisco Bautista and
treason is a separate and distinct offense from the Tomas Puzon, should be, and is hereby, affirmed,
crime of treason, and that this constitutional except so far as it imposes subsidiary imprisonment
provision is not applicable in such cases. ( In in the event of insolvency and failure to pay their
re Bollman, 4 Cranch, 74; U. S. vs. Mitchell, 2 Dall., respective fines, and, there being no authority in
348.)chanrobles vi rtual law lib rary law of such provision, so much of the sentence as
undertakes to impose subsidiary imprisonment is
The evidence of record does not sustain the hereby reversed. chanroblesvi rt ualawlib rary cha nrob les vi rtua l law lib rary

conviction of Aniceto de Guzman. The finding of his

guilt rest substantially upon his acceptance of a After ten days let judgment be entered in
number of bonds from one of the conspirators, such accordance herewith, when the record will be
bonds having been prepared by the conspirators for returned to the trial court for execution. So
the purpose of raising funds for carrying out the ordered. chanroble svi rtualaw lib rary chan rob les vi rtual law lib rary

plans of the conspiracy, but it does not

affirmatively appear that he knew anything of the Arellano, C.J., Torres, Johnson and Tracey, JJ.,
existence of the conspiracy or that, when he concur.
received the bonds wrapped in a bundle, he knew Mapa, and Willard, JJ., concur as to the penalty
what the contents of the bundle was, nor that ever, imposed upon Bautista and dissent as to that
on any occasion, assumed any obligation with imposed upon Puzon.
respect to these bonds. He, himself, states that
Republic of the Philippines
when he opened the bundle and discovered the SUPREME COURT
nature of the contents he destroyed them with fire, Manila
and that he never had any dealings with the
FIRST DIVISION
conspirators in relation to the conspiracy or the
object for which it was organized. chanrob lesvi rtualaw lib rary chanrob les vi rtual law lib rary

We are of opinion, therefore, that the judgment and G.R. No. L-23249 November 25, 1974
sentence before us, in so far as it affects the said
Aniceto de Guzman, should be reversed, with his
342
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CUNIGUNDA BOHOLST-CABALLERO, accused-appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General
Florencio Villamor and Attorney Concepcion F. Torrijos for plaintiff-appellee.
Accused-appellant in her own behalf.
MUÑOZ PALMA, J.:p
Convicted for having killed her husband, Cunigunda Boholst-Caballero seeks a reversal of the judgment of
the Court of First Instance of Ormoc City finding her guilty of PARRICIDE and sentencing her "to suffer an
indeterminate imprisonment of from EIGHT (8) YEARS and ONE (1) DAY of prision mayor in its medium
period, as the minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion
temporal in its medium period as the maximum; to indemnify the heirs of Francisco Caballero in the sum of
SIX THOUSAND PESOS (P6,000.00) without subsidiary imprisonment in case of insolvency, and to pay
the costs", and prays for an acquittal based on her plea of self-defense.1
The Solicitor General however asks for the affirmance of the appealed
decision predicated on the following testimonial and documentary evidence
presented by the prosecution before the trial court:
Cunigunda Boholst and Francisco Caballero, both at the age of twenty, were
married on June 7, 1956, at a ceremony solemnized by the parish priest of
the Roman Catholic Church in Ormoc City.2 The marriage was not a happy
one and before the end of the year 1957 the couple separated. Late in the
evening of January 2, 1958, Francisco Caballero and two companions,
namely, Ignacio Barabad and Kakong Sacay, drank "tuba" in a certain
house in barrio Ipil, Ormoc City. At about midnight, Francisco Caballero and
his companions proceeded home. On the way, they saw Francisco's wife,
Cunigunda, standing at the corner of the yard of Igmedio Barabad
Cunigunda called Francisco and when the latter approached her, Cunigunda
suddenly stabbed Francisco with a knife marked by the prosecution as its
Exhibit C. Francisco called for help to his two companions who upon seeing
that Francisco was wounded, brought him to the St. Jude Hospital.3 Dr.
Cesar Samson, owner of the hospital, personally attended to the victim and
found a "punctured wound on the left lumbar region measuring 1 inch
externally" (Exhibit B). First aid was given, but because there was a need for
blood transfusion and the facilities of the hospital were inadequate to
provide the necessary treatment, Dr. Samson suggested that the patient be
transported to Cebu City.4 In the meantime, Cunigunda Caballero had gone
to the Police Department of Ormoc City, surrendered to desk sergeant
Restituto Mariveles and informed the latter that she stabbed her
husband.5 While Francisco Caballero was confined at the hospital, he was
343
interrogated by Patrolman Francisco Covero concerning the identity of his
assailant and he pointed to his wife Cunigunda. The questions propounded
by Pat. Covero and the answers given by the victim were written down in a
piece of paper on which the victim affixed his thumbmark (Exhibit D) in the
presence of his brother, Cresencio Caballero, and another policeman,
Francisco Tomada.6 On January 4, 1958, Francisco Caballero was brought
to Cebu City on board the "MV Ormoc" but the trip proved futile because the
victim died at noontime of the same day from the stab wound sustained by
him.7
Appellant, on the other hand, pleads that We discard the proof adduced by
the prosecution and believe instead what she declared before the trial judge
briefly summarized as follows:
After her marriage to Francisco Caballero on June 7, 1956, appellant lived
with her husband in the house of her parents in barrio Ipil, Ormoc City, and
their marriage, although not a harmonious one, was blessed with a
daughter; her married life was marked by frequent quarrels caused by her
husband's "gambling, drinking, and serenading", and there were times when
he maltreated and beat her; after more than a year she and her husband
transferred to a house of their own, but a month had hardly passed when
Francisco left her and her child, and she had to go back to live with her
parents who bore the burden of supporting her and her child; in the month of
November, 1957, her daughter became sick and she went to her husband
and asked for some help for her sick child but he drove her away and said "I
don't care if you all would die"; in the evening of January 2, 1958, she went
out carolling with her friend, Crispina Barabad, and several men who played
the musical instruments; at about 12:00 o'clock midnight they divided the
proceeds of the carolling in the house of Crispina Barabad after which she
went home, but before she could leave the vicinity of the house of Crispina,
she met her husband Francisco, who upon seeing her, held her by the collar
of her dress and asked her: "Where have you been prostituting? You are a
son of a bitch."; she replied: "What is your business. Anyway you have
already left us. You have nothing to do with us"; upon hearing these words
Francisco retorted: "What do you mean by saying I have nothing to do with
you. I will kill you all, I will kill you all"; Francisco then held her by the hair,
slapped her face until her nose bled, and pushed her towards the ground, to
keep herself from falling she held on to his waist and as she did so her right
hand grasped the knife tucked inside the belt line on the left side of his
body; because her husband continued to push her down she fell on her
back to the ground; her husband then knelt over her, held her neck, and
choked her saying. "Now is the time I can do whatever I want. I will kill you";
because she had "no other recourse" as she was being choked she pulled
out the knife of her husband and thrust it at him hitting the left side of his
body near the "belt line" just above his left thigh; when she finally released
herself from the hold of her husband she ran home and on the way she
threw the knife; in the morning of January 3, she went to town, surrendered
to the police, and presented the torn and blood-stained dress worn by her
on the night of the incident (see Exhibit I); Pat. Cabral then accompanied
her to look for the weapon but because they could not find it the policeman
advised her to get any knife, and she did, and she gave a knife to the desk
sergeant which is the knife now marked as Exhibit C for the prosecution.8
The sole question thus presented in this appeal is: did appellant stab her
husband in the legitimate defense of her person?
The law on self-defense embodied in any penal system in the civilized world
finds justification in man's natural instinct to protect, repel, and save his
person or rights from impending danger or peril; it is based on that impulse
of self-preservation born to man and part of his nature as a human being.
Thus, in the words of the Romans of ancient history: Quod quisque ob
tutelam sui fecerit, jure suo ficisse existimetur.9 To the Classicists in penal
law, lawful defense is grounded on the impossibility on the part of the State
to avoid a present unjust aggression and protect a person unlawfully
attacked, and therefore it is inconceivable for the State to require that the
innocent succumb to an unlawful aggression without resistance; while to the
Positivists, lawful defense is an exercise of a right, an act of social justice
done to repel the attack of an aggressor.10
Our law on self-defense is found in Art. 11 of the Revised Penal Code which
provides:
ART. 11. Justifying circumstances. — The following do not
incur any criminal liability:
1. Anyone who acts in defense of his person or rights,
provided that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
xxx xxx xxx
As part of this law is the settled jurisprudence that he who seeks justification
for his act must prove by clear and convincing evidence the presence of the
aforecited circumstances, the rationale being that having admitted the
344
wounding or killing of his adversary which is a felony, he is to be held
criminally liable for the crime unless he establishes to the satisfaction of the
court the fact of legitimate self-defense. 11
In this case of Cunigunda Caballero, the trial court did not find her evidence
clear and convincing, and gave these reasons for its conclusion: a)
appellant's testimony is inherently improbable as brought out by her
demonstration of the incident in question during the trial of the case; b) there
was no wound or injury on appellant's body treated by any physician: c)
appellant's insistence that the weapon used by her was Moro hunting knife
and not Exh. C is incredible; d) she gave contradictory statements
concerning the report made by her to the police authorities that she was
choked by her husband; and e) her husband's abandonment of her and her
child afforded the motive behind appellant's
attack. 12
We are constrained, however, to disagree with the court a quo and depart
from the rule that appellate court will generally not disturb the findings of the
trial court on facts testified to by the witnesses.
An examination of the record discloses that the trial judge overlooked and
did not give due importance to one piece of evidence which more than the
testimony of any witness eloquently confirms the narration of appellant on
how she happened to stab her husband on that unfortunate night. We refer
to the location of the wound inflicted on the victim.
Appellant's account of that fatal occurrence as given in her direct testimony
follows:
Q At that precise time when you were going
home to the place of your parents, did any
unusual incident occur?
A Yes, sir.
Q What was it?
A At the time when I went down from the
house of Crispina Barabad, when I reached
near the banana hill, my husband held me.
Q What happened when your husband,
Francisco Caballero, held you?
A He asked me from where did I prostitute
myself.
Q What did you answer?
A I answered that I did not go (on)
prostituting. I told him that I was only forced
to accompany with the carolling in order to
earn money for our child.
Q What part of your body did your husband,
Francisco Caballero, hold you?
A He held me at the collar of my dress.
(Witness holding the right portion of the collar
of her dress.)
Q After you answered Francisco, what did he
do?
A He said "Where have you been
prostituting? You are a son of a bitch." Then I
told him "What is your business. Anyway you
have already left us. You have nothing to do
with us."
Q When Francisco heard these words, what
did he do?
A Francisco said "What do you mean by
saying l have nothing to do with you. I will kill
you all. I will kill you all."
Q And then, what happened?
A He held my hair and slapped my face
twice. Then I staggered and my nose was
bleeding.
Q Do you mean to say that blood flowed out
of your nose?
A Yes, sir.
345
Q After you were slapped twice and your
nose begun to bleed, what happened next?
A He held the front part of my dress just
below the collar and pushed me towards the
ground. .
Q While your husband was holding your
dress below the neck and tried to push you
down, what did you do?
A I held a part of his body in order that I
would not fall to the ground.
Q And then what happened?
A Because I struggled hard in order that I
would not fall to the ground I held his belt
and that was the time I got hold of a weapon
along his belt line.
Q After that what happened?
A He shoved my hands upward and pushed
me to the ground and that was the time my
hands were released. He was choking me.
Q When you said your hands were released,
was that before or after you were choked by
Francisco Caballero?
A At that time when I was about to fall to the
ground that was the time I released my
hands.
Q When you were almost fallen to the
ground, where were the hands of Francisco
Caballero?
A On my hair.
Q You mean to say the two hands of
Francisco Caballero?
 A One of his hands was holding my hair. The
other hand pushed me.
COURT:
Q What hand was holding your hair?
A His right hand was holding my hair while
his left hand pushed me.
ATTORNEY GARCIA:
Q When you were fallen to the ground what
happened?
A While I lay prostrate on the ground and
believing that I have no other recourse, while
his left hand was holding my neck, I was able
to take hold of the weapon from his belt line
and I thrust it to him.
Q What was this weapon which you were
able to get from his belt line?
A It was a hunting knife." (tsn. pp. 53-55,
witness Cunigunda Caballero)
On cross-examination, appellant was asked by the private prosecutor to
show her position when she stabbed her husband and she did, and although
the stenographic notes on that demonstration are very sketchy which We
quote:
Q Please demonstrate to this Court when
you made the thrust to your husband?
A When I took hold of the hunting knife I
made the thrust in this manner. (Witness held
the ruler with her right hand kneeled on the
floor)" (tsn. p. 67, ibid)
still We can get a clear picture of what appellant must have done, from the
questions and answers immediately following the above-quoted portion of
the transcript, viz:
346
Q You want to make us understand that
when you thrust the weapon to the body of
your husband you were lying down flat to the
ground?
A I was lying flat on the ground face upward.
I was a little bit inclined because tried to
struggle trying to get away from the hold of
my husband.
Q You want to make us understand that your
back was touching the ground when you
made the thrust to your husband?
A Yes, sir.
COURT:
Q Where were you kneeled by your,
husband?
A On my right thigh. (ibid; emphasis
supplied)
Thus, with her husband kneeling over her as she lay on her back on the
ground and his hand choking her neck, appellant, as she said, had no other
recourse but to pull out the knife inserted at the left side of her husband's
belt and plunge it at his body hitting the left back portion just below the
waist, described by the attending physician, Dr. Cesar Samson, as the left
lumbar region. The fact that the blow landed in the vicinity from where the
knife was drawn is a strong indication of the truth of appellant's testimony,
for as she lay on the ground with her husband bent over her it was quite
natural for her right hand to get hold of the knife tucked in the left side of the
man's belt and thrust it at that section of the body nearest to her hand at the
moment.
We do not agree with the trial judge's observation that as demonstrated by
the accused it was physically impossible for her to get hold of the weapon
because the two knees of her husband were on her right thigh "which would
have forced her to put her right elbow towards the ground"(see p. 9 of
Decision), for even if it were true that the two knees of Francisco were on
his wife's right thigh, however, there is nothing in the record to show that the
right arm of the accused was held, pinned down or rendered immobile, or
that she pressed her elbow to the ground, as conjectured by the trial judge,
in such a manner that she could not reach for the knife. On the contrary, as
indicated earlier, accused testified and so demonstrated that she was lying
flat on her back, her husband kneeling over her and her right arm free to pull
out the knife and strike with it.
The trial judge also referred the a demonstration made by appellant of that
portion of her testimony when she was held by the hair and pushed down to
the ground, and His Honor commented that "(S)he could not be falling to the
ground, as shown to the Court by her, considering the fact that the pushing
was to and fro as shown in her demonstration." (p. 8, Decision) The trial
judge, however, failed to consider that it is humanly impossible to have an
exact and accurate reproduction or reenactment of an occurrence especially
if it involves the participation of persons other than the very protagonists of
the incident being re-enacted. In this particular instance appellant was
asked by the private prosecutor to show how she was pushed down by her
husband, and her demonstration is described in the stenographic transcript
as follows:
Q Please demonstrate to this Court the
position of your husband and you while your
husband held your hair.
A He did this way. (Witness held the hair of
the Court Interpreter with his left hand and
his right hand held the right shoulder of the
Interpreter and pulled the Interpreter to and
fro. The Interpreter represented as the
accused and the accused as the deceased.)
Q Where were your two hands?
A My two hands held his waist line. (tsn. 66,
witness Cunigunda Caballero; emphasis
supplied)
In that demonstration, accused represented the victim while she in turn was
impersonated by the court interpreter, and so it was difficult if not impossible
for the two to give an accurate reenactment considering that the accused
assumed a role not hers during the actual incident and the court interpreter
played a part which was not truly his. At any rate, the accused showed how
one hand of her husband held her hair while the other pushed her down by
the shoulder, and to portray how she in turn struggled and tried to push back
her husband to keep herself from falling, she "pulled the interpreter
(representing the accused) to and fro." The fact is that Francisco succeeded
in forcing appellant down to the ground as portrayed by the latter when,
following the foregoing demonstration, she was asked by the private
347
prosecutor to show how she stabbed her husband — a matter which is
discussed in pages 8 and 9 of this Decision.
It is this particular location of the wound sustained by the victim which
strongly militates against the credibility of the lone prosecution witness,
Ignacio Barabad. This witness declared that on that night when husband
and wife met on the road, Cunigunda called Francisco and when the latter
was near, she immediately stabbed him. If that were true, that is, husband
and wife were standing face to face at a distance of one-half meter when the
stabbing occurred (tsn. p. 11, witness Ignacio Barabad), it would have been
more natural and probable for the weapon to have been directed towards
the front part of the body of the victim such as his abdomen or chest, rather
than at his back, left side, just above the left thigh.
In cases such as the one now before Us where there are directly conflicting
versions of the incident object of the accusation, the Court in its search for
the truth perforce has to look for some facts or circumstances which can be
used as valuable aids in evaluating the probability or improbability of a
testimony, for after all the element of probability is always involved in
weighing testimonial evidence13, so much so that when a court as a judicial
fact-finder pronounces judgment that a set of facts constitute the true
happening it does so not of its own personal knowledge but as the result of
an evaluating process of the probability or improbability of a fact sought to
be proved.
Thus, in People vs. Aquino, L-32390, December 28, 1973, a decision of the
First Division of this Court penned by Chief Justice Querube C. Makalintal,
the plea of self-defense of the accused-appellant was sustained on the
basis of certain "physical and objective circumstances" which proved to be
of "decisive importance" in ascertaining the veracity of the plea of self-
defense, to wit: the location of the wound on the right side of the throat and
right arm of the deceased, the direction of the trajectories of the bullets fired
by the accused, the discovery of bloodstains at the driver's seat, the finding
of the dagger and scabbard of the deceased, and so on. 14
In the case of appellant Cunigunda Caballero, We find the location of the
fatal wound as a valuable circumstance which confirms the plea of self-
defense.
Another, is the lack of motive of appellant in attacking and killing her
husband on that particular night of January 2. Although it is the general rule
that the presence of motive in the killing of a person is not indispensable to
a conviction especially where the identity of the assailant is duly established
by other competent evidence or is not disputed, as in this case,
nonetheless, the absence of such motive is important in ascertaining the of appellant's report to the police concerning the incident except for the
truth as between two antagonistic theories or versions of the killings. 15 following:

We disagree with the statement of the court a quo that appellant's motive for COURT:
killing her husband was his abandonment of her and his failure to support
her and her child. While appellant admitted in the course of her testimony Q Did you show that dress to the police
that her marriage was not a happy one, that she and her husband separated authorities the following day?
in the month of October, 1957, and since then she and her child lived with
her parents who supported them, nevertheless she declared that A I was not able to wear that, Your Honor,
notwithstanding their separation she still loved her husband (tsn. p. 59, because it was torn out.
cross-examination of appellant). As a matter of fact, appellant had been
living with her parents for several months prior to the incident in question
Q You did not bring that to the police
and appeared resigned to her fate. Furthermore, there is no record of any
authorities?
event which occurred immediately prior to January 2 which could have
aroused her feelings to such a degree as to drive her to plan and carry out
the killing of her husband. A I showed it to the police authorities, and
they told me to keep it, not to touch it. (Tsn.
p. 65, ibid)
On the other hand, it was Francisco Caballero who had a reason for
attacking his wife, Cunigunda. Meeting his wife unexpectedly at past
midnight on the road, Francisco reacted angrily, and suspecting that she We do not see, therefore, the alleged contradiction in appellant's testimony
was out for some bad purpose he held her by the collar of her dress and which was singled out by His Honor as one of his reasons for discrediting
said: "Where have you been prostituting? You are a son of a bitch." This her plea of self-defense.
was followed by a slapping on the face until Cunigunda's nose bled, pulling
of her hair, pushing her down to the ground, and strangling her — all of That appellant made it clear to the police that she stabbed her husband
which constituted the unlawful aggression against which appellant had to because he attacked her is confirmed by no less than the prosecution
defend herself. witness, Patrolman Restituto Mariveles, who was on duty at the desk when
appellant arrived at the police headquarters. This witness on cross-
Next to appellant's lack of motive for killing her husband, is her conduct examination declared:
shortly after the occurrence. As soon as the sun was up that morning of
January 3 (the stabbing occurred past midnight of January 2), Cunigunda Q And she also told you that on that night
went to the city and presented herself at the police headquarters where she previous to the incident her husband
reported that she stabbed her husband and surrendered the blood-stained Francisco Caballero beat her up, is that
dress she wore that night. On this point, the trial judge stated that appellant right?
made contradictory statements in her testimony concerning the report made
by her to the police authorities, for while at the start she declared that she A She told me that she was met on the way
did not report the "choking by her husband", she later changed her by her husband immediately after carolling
testimony and stated that she did relate that fact. (p. 10, Decision) and she was manhandled by her husband
and when she was struggling to get loose
We have gone over the stenographic transcript of the testimony of appellant from her husband she happened to take hold
on direct examination and nowhere is there a positive and direct statement of a knife that was placed under the belt of
of hers that she did not report that she was choked by her husband. What her husband and because she was already
the trial judge asked of appellant was whether or not she told the police half conscious she did not know that she was
about the fist mark on her face and her answer was "No, sir, I forgot." (tsn. able to thrust said knife to the stomach of her
p. 55, supra) And on appellant's cross-examination, there was no question husband. (tsn. p. 23, witness R. Mariveles)
propounded and therefore there was no answer given on the subject-matter

348
It is indeed regrettable that the statements made by appellant to the police
upon her surrender were not taken down in writing to serve as a faithful and
reliable account of her report, nevertheless, We are satisfied by the fact,
which is not disputed, that of her own accord appellant went to the police
authorities early in the morning of January 3, informed Policeman Mariveles
that she stabbed her husband because he manhandled her which rendered
her "half-conscious", and brought and showed the dress she wore during
the incident which was torn by the collar and with blood stains due to the
bleeding of her nose. Another policeman, Joventino de Leon, who at the
time was property custodian of the Ormoc City police, corroborated
appellant's testimony concerning the dress marked Exhibit 1 for the defense.
(tsn. p. 70 witness J. de Leon) If there was no clear and positive statement
in appellant's testimony either on direct or cross examination that she
informed the police that she was choked by her husband, it was because, as
We noted, no question was propounded to her on that point.
While We are on this subject of appellant's surrender, mention is to be made
of the knife marked as Exhibit C for the prosecution. In her testimony,
appellant stated that Exhibit C was not the knife actually used by her in
stabbing her husband because the true weapon was her husband's Moro
hunting knife with a blade of around six inches which she threw away
immediately after the incident; that when she was asked by Pat. Mariveles
to look for the weapon and she could not find it, she was advised by
policeman Cabral who helped her in the search to get any knife and
surrender it to the desk officer and so she took the knife Exhibit C and
presented it to Pat. Mariveles. (tsn. appellant pp. 56-57, 60) This testimony
of appellant was taken against her by the court a quo which held that her
declaration could not have been true. We find however no strong reason for
disbelieving the accused on this point. Appellant does not deny that she
turned over Exhibit C to Pat. Mariveles as the knife with which she stabbed
her husband but she claims that she did so upon advise of another
policeman, Pat. Cabral, and it is quite significant that the latter was not
called upon by the prosecution to refute such declaration. There is sincerity
in appellant's attempt to rectify a misstatement made by her to Pat.
Mariveles and We are inclined to believe and in fact We do believe that the
fatal weapon must have had indeed a blade of around six inches as stated
by appellant for it to penetrate through the left lumbar region to the victim's
large intestine and cause the discharge of fecal matter (tsn. Dr. C. Samson,
p. 6)
All the elements of self-defense are indeed present in the instant case.
The element of unlawful aggression has been clearly established as pointed
out above.
349
The second element, that is, reasonable necessity for the means employed
is likewise present. Here we have a woman who being strangled and
choked by a furious aggressor and rendered almost unconscious by the
strong pressure on her throat had no other recourse but to get hold of any
weapon within her reach to save herself from impending death. Early
jurisprudence of this Court has followed the principle that the reasonable
necessity of the means employed in self-defense does not depend upon the
harm done but rests upon the imminent danger of such injury. (U.S. vs.
Paras, 1907, 9 Phil. 367, citing Decision of Dec. 22, 1887) And so the fact
that there was no visible injury caused on the body of the appellant which
necessitated medical attention, a circumstance noted by the trial court, is no
ground for discrediting self-defense; what is vital is that there was imminent
peril to appellant's life caused by the unlawful aggression of her husband.
The knife tucked in her husband's belt afforded appellant the only
reasonable means with which she could free and save herself from being
strangled and choked to death. What this Court expressed in the case of
People vs. Lara, 1925, 48 Phil. 153, 160, is very true and applicable to the
situation now before Us, and We quote:
It should be borne in mind that in emergencies of this kind
human nature does not act upon processes of formal reason
but in obedience to the instinct of self-preservation; and
when it is apparent, as in this case, that a person has
reasonably acted upon this instinct, it is the duty of the
courts to sanction the act and to hold the actor irresponsible
in law for the consequences. 16
Equally relevant is the time-honored principle: Necessitas Non habet legem.
Necessity knows no law.
The third element of self-defense is lack of sufficient provocation on the part
of the person defending himself.Provocation is sufficient when it is
proportionate to the aggression, that is, adequate enough to impel one to
attack the person claiming self-
defense. 17 Undoubtedly appellant herein did not give sufficient provocation
to warrant the aggression or attack on her person by her husband,
Francisco. While it was understandable for Francisco to be angry at his wife
for finding her on the road in the middle of the night, however, he was not
justified in inflicting bodily punishment with an intent to kill by choking his
wife's throat. All that appellant did was to provoke an imaginary commission
of a wrong in the mind of her husband, which is not a sufficient provocation
under the law of self-defense. Upon being confronted by her husband for
being out late at night, accused gave a valid excuse that she went carolling
with some friends to earn some money for their child. January 2 was indeed
within the Christmas season during which by tradition people carol from
house to house and receive monetary gifts in a Christian spirit of goodwill.
The deceased therefore should have given some consideration to his wife's
excuse before jumping to conclusions and taking the extreme measure of
attempting to kill his wife.
IN VIEW OF THE ABOVE CONSIDERATIONS, We find that accused-
appellant acted in the legitimate defense of her person, and We accordingly
set aside the judgment of conviction and ACQUIT her with costs de oficio.
So Ordered.
Makalintal, C.J, Teehankee, Makasiar and Esguerra, JJ., concur.
Castro, J, is on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-162 April 30, 1947
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DIOSCORO ALCONGA and ADOLFO BRACAMONTE, defendants.
DIOSCORO ALCONGA, appellant.
Jose Avanceña for appellant.
Assistant Solicitor General Kapunan, Jr. and Solicitor Barcelona for
appellee.
HILADO, J.:
On the night of May 27, 1943, in the house of one Mauricio Jepes in the
Municipality of San Dionisio, Province of Iloilo several persons were playing
prohibited games (t.s.n., pp. 95, 125). The deceased Silverio Barion was the
banker in the game of black jack, and Maria de Raposo, a witness for the
prosecution, was one of those playing the game (t.s.n., p. 95). Upon
invitation of the said Maria de Raposo, the accused Dioscoro Alconga joined
her as a partner, each of them contributing the sum of P5 to a common fund
(t.s.n., pp. 95, 125). Maria de Raposo played the game while the said
accused posted himself behind the deceased, acting as a spotter of the
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cards of the latter and communicating by signs to his partner (t.s.n., pp. 95-
96, 126). The deceased appears to have suffered losses in the game
because of the team work between Maria de Raposo and the accused
Alconga (t.s.n., pp. 96, 126). Upon discovering what the said accused had
been doing, the deceased became indignant and expressed his anger at the
former (t.s.n., pp. 96, 126). An exchange of words followed, and the two
would have come to blows but for the intervention of the maintainer of the
games (t.s.n., p. 96). In a fit of anger, the deceased left the house but not
before telling the accused Alconga, "tomorrow morning I will give you a
breakfast" (t.s.n., p. 96), which expression would seem to signify an intent to
inflict bodily harm when uttered under such circumstances.
The deceased and the accused Alconga did not meet thereafter until the
morning of May 29, 1943, when the latter was in the guardhouse located in
the barrio of Santol, performing his duties as "home guard" (t.s.n., pp. 98-
100). While the said accused was seated on a bench in the guardhouse, the
deceased came along and, addressing the former, said, "Coroy, this is your
breakfast," followed forthwith by a swing of his "pingahan" (t.s.n., p. 100).
The accused avoided the blow by falling to the ground under the bench with
the intention to crawl out of the guardhouse (t.s.n., pp. 100-101). A second
blow was given but failed to hit the accused, hitting the bench instead (t.s.n.,
p. 101). The accused manage to go out of the guardhouse by crawling on
his abdomen (t.s.n., p. 101). While the deceased was in the act of delivering
the third blow, the accused, while still in a crawling position (t.s.n., p. 119),
fired at him with his revolver, causing him to stagger and to fall to the ground
(t.s.n., p. 101). Rising to his feet, the deceased drew forth his dagger and
directed a blow at the accused who, however, was able to parry the same
with his bolo (t.s.n., pp. 101-102). A hand-to-hand fight ensued (t.s.n., p.
102). Having sustained several wounds, the deceased ran away but was
followed by the accused (t.s.n., p. 6). After running a distance of about 200
meters (t.s.n., pp. 21, 108), the deceased was overtaken, and another fight
took place, during which the mortal bolo blow — the one which slashed the
cranium — was delivered, causing the deceased to fall to the ground, face
downward, besides many other blows deliver right and left (t.s.n., pp. 6, 28).
At this instant, the other accused, Adolfo Bracamonte, arrived and, being the
leader of the "home guards" of San Dionisio, placed under his custody the
accused Alconga with a view to turning him over to the proper authorities
(t.s.n., pp. 102-105).
On their way to San Dionisio, the two accused were stopped by Juan
Collado, a guerrilla soldier (t.s.n., pp. 80, 104). Adolfo Bracamonte turned
over Alconga to Collado who in turn took him to the headquarters (t.s.n., pp.
81, 104). In the afternoon of the same day, Collado delivered Alconga to
Gregorio Barredo, a municipal policeman of San Dionisio, together with the
weapons used in the fight: a revolver, a bolo, and a dagger (t.s.n., pp. 81,
104).
The injuries sustained by the deceased were described by police sergeant
Gil G. Estaniel as follows:
P. ¿Y que hicieron ustedes cuando ustedes vieron a Silverio
Barion? — R. Examine sus heridas.
P. ¿Donde ha encontrado usted las heridas, en que parte del
cuerpo? — R. En la cabeza, en sus brazos, en sus manos, en la
mandibula inferior, en la parte frente de su cuello, en su pecho
derecho, y tambien en el pecho izquierdo, y su dedo meñique habia
volado, se habia cortado, y otras perqueñas heridas mas.
P. ¿En la cabeza, vio usted heridas? — R. Si, señor.
P. ¿Cuantas heridas? — R. Una herida en la region parietal derecha
y una contusion en la corona de la cabeza.
P. ¿Vio usted el craneo? — R. En la craneo llevaba una herida, en
quel el craneo se ha roto.
P. ¿En el pecho, herida ha encontrado usted? — R. Debajo de la
tetilla derecha, una herida causada por una bala.
P. ¿Y otras heridas en el pecho, puede usted decir que clase de
heridas? — R. Heridas causadas por bolo.
P. ¿Como de grande acquellas heridas en el pecho? — R. No
recuerdo la dimension de las heridas en el pecho.
P. ¿Pero en la cabeza? — R. La cabeza se rajo por aquella herida
causada por el bolo. (T.s.n., p. 25.)
It will be observed that there were two stages in the fight between appellant
and the deceased. The initial stage commenced when the deceased
assaulted appellant without sufficient provocation on the part of the latter.
Resisting the aggression, appellant managed to have the upper hand in the
fight, inflicting several wounds upon the deceased, on account of which the
latter fled in retreat. From that moment there was no longer any danger to
the life of appellant who, being virtually unscathed, could have chosen to
remain where he was. Resolving all doubts in his flavor, and considering
that in the first stage the deceased was the unlawful aggressor and
defendant had not given sufficient provocation, and considering further that
when the deceased was about to deliver the third blow, appellant was still in
a crawling position and, on that account, could not have effectively wielded
351
his bolo and therefore had to use his "paltik" revolver — his only remaining
weapon — ; we hold that said appellant was then acting in self-defense.
But when he pursued the deceased, he was no longer acting in self-
defense, there being then no more aggression to defend against, the same
having ceased from the moment the deceased took to his heels. During
the second stage of the fight appellant inflicted many additional wounds
upon the deceased. That the deceased was not fatally wounded in the first
encounter is amply shown by the fact that he was still able to run a distance
of some 200 meters before being overtaken by appellant. Under such
circumstances, appellant's plea of self-defense in the second stage of the
fight cannot be sustained. There can be no defense where there is no
aggression.
Although the defendant was not the aggressor, he is not exempt
from criminal liability for the reason that it is shown that he struck
several blows, among them the fatal one, after the necessity for
defending himself had ceased, his assailant being then in retreat.
Therefore one of the essential ingredients of self-defense specified
in No. 4, article 8 of the Penal Code is wanting (now article 11, case
No. 1, Revised Penal Code). (United States vs. Dimitillo, 7 Phil.,
475, 476; words in parenthesis supplied.)
. . . Even if it be conceded for the moment that the defendants were
assaulted by the four (offended parties), the right to kill in self-
defense ceased when the aggression ceased; and when Toledo and
his brothers turned and ran, without having inflicted so much as a
scratch upon a single one of the defendants, the right of the
defendants to inflict injury upon them ceased absolutely. They had
no right to pursue, no right to kill or injure. A fleeing man is not
dangerous to the one from whom he flees. When danger ceases, the
right to injure ceases. When the aggressor turns and flees, the one
assaulted must stay his hand. (United States vs. Vitug, 17 Phil., 1,
19; emphasis supplied.)
Upon the foregoing facts, we hold that appellant's guilt of the crime of
homicide has been established beyond reasonable doubt. The learned trial
court appreciated in his favor of two mitigating circumstances: voluntary
surrender and provocation on the part of the deceased. The first was
properly appreciated; the second was not, since it is very clear that from the
moment he fled after the first stage of the fight to the moment he died, the
deceased did not give any provocation for appellant to pursue much less
further to attack him.
The only provocation given by him was imbibed in, and inseparable from,
the aggression with which he started the first stage of the fight. The
evidence, as weighed and appreciated by the learned trial judge, who had
heard, seen and observed the witnesses testify, clearly shows that said
stage ended with the flight of the deceased after receiving a bullet wound in
his right breast, which caused him to stagger and fall to the ground, and
several bolo wounds inflicted by appellant during their hand-to-hand fight
after both had gotten up. The learned trial judge said:
The evidence adduced by the prosecution and the defense in
support of their respective theories of the case vary materially on
certain points. Some of these facts have to be admitted and some
have to be rejected with the end in view of arriving at the truth. To
the mind of the Court, what really happened in the case at bar, as
can de disclosed by the records, which lead to the killing of the
deceased on that fatal morning of May 29, 1945 (should be 1943), is
as follows:
xxx xxx xxx
In the morning of May 29, 1943, while Dioscoro Alconga was alone
in the guardhouse performing his duties as guard or "ronda" in
Barrio Santol, the deceased Silverio Barion passed by with a
"pingahan". That was the first time the deceased and the accused
Alconga had met since that eventful night of May 27th in the
gambling house of Gepes. Upon seeing the accused Alconga, who
was then seated in the guardhouse, the deceased cried: "Coroy, this
is now the breakfast!" These words of warning were immediately
followed by two formidable swings of the "pingahan" directed at the
accused Alconga which failed to hit him. Alconga was able to avoid
the blows by falling to the ground and crawling on his abdomen until
he was outside the guardhouse. The deceased followed him and
while in the act of delivering the third blow, Dioscoro Alconga fired at
him with his revolver thereby stopping the blow in mid-air. The
deceased fell to the ground momentarily and upon rising to his feet,
he drew forth a dagger. The accused Alconga resorted to his bolo
and both persons being armed, a hand-to-hand fight followed. The
deceased having sustained several wounds from the hands of
Alconga, ran away with the latter close to his heels.
The foregoing statement of the pertinent facts by the learned trial judge is in
substantial agreement with those found by us and narrated in the first
paragraphs of this decision. Upon those facts the question arises whether
when the deceased started to run and flee, or thereafter until he died, there
was any provocation given by him from appellant to pursue and further to
attack him. It will be recalled, to be given with, that the first stage of the fight
352
was provoked when the deceased said to appellant "Cory, this is now the
breakfast," or "This is your breakfast," followed forthwith by a swing or two of
his "pingahan." These words without the immediately following attack with
the "pingahan" would not have been uttered, we can safely assume, since
such an utterance alone would have been entirely meaningless. It was
the attack, therefore, that effectively constituted the provocation, the
utterance being, at best, merely a preclude to the attack. At any rate, the
quoted words by themselves, without the deceased's act immediately
following them, would certainly not have been considered a sufficient
provocation to mitigate appellant's liability in killing or injuring the deceased.
For provocation in order to be a mitigating circumstance must
be sufficient and immediately preceding the act. (Revised Penal Code,
article 13, No. 4.)
Under the doctrine in United States vs. Vitug, supra, when the deceased ran
and fled without having inflicted so much as a scratch upon appellant, but
after, upon the other hand, having been wounded with one revolver shot and
several bolo slashes, as aforesaid, the right of appellant to inflict injury upon
him, ceased absolutely — appellant "had no right to pursue, no right to kill or
injure" said deceased — for the reason that "a fleeing man is not dangerous
to the one from whom he flees." If the law, as interpreted and applied by this
Court in the Vitug case, enjoins the victorious contender from pursuing his
opponent on the score of self-defense, it is because this Court considered
that the requisites of self-defense had ceased to exist, principal and
indispensable among these being the unlawful aggression of the opponent
(Rev. Penal Code, article 11, No. 1; 1 Viada, 5th ed., 173).
Can we find under the evidence of record that after the cessation of said
aggression the provocation thus involved therein still persisted, and to a
degree sufficient to extenuate appellant's criminal responsibility for his acts
during the second stage of the fight? Appellant did not testify nor offer other
evidence to show that when he pursued the deceased he was still acting
under the impulse of the effects of what provocation, be it anger,
obfuscation or the like. The Revised Penal Code provides:
ART. 13. Mitigating circumstances:
xxx xxx xxx
4. That sufficient provocation or threat on the part of the offended
party immediately preceded the act.
It is therefore apparent that the Code requires for provocation to be such a
mitigating circumstance that it not only immediately precede the act but that
it also be sufficient. In the Spanish Penal Code, the adjective modifying said
noun is "adecuada" and the Supreme Court of Spain in its judgment of June
27, 2883, interpreted the equivalent provision of the Penal Code of that
country, which was the source of our own existing Revised Penal Code, that
"adecuada" means proportionate to the damage caused by the act. Viada
(Vol. 11, 5th ed., p. 51) gives the ruling of that Supreme Court as follows:
El Tribunal Supremo ha declarado que
la provocacion o amenaza que de parte del ofendido ha de preceder
para la disminucion de la responsabilidad criminal debe
ser proporcionada al daño que se cause, lo cual no concurre a favor
del reo si resulta que la unica cuestion que hubo fue si en un
monton de yeso habia mas omenos cantidad, y como perdiera la
apuesta y bromeando dijera el que la gano que beberia vino de
balde, esa pequeña cuestion de amor propio no justificaba en modo
alguno la ira que le impelio a herir y matar a su contrario. (S. de 27
de junio de 1883, Gaceta de 27 de septiembre.)
Justice Albert, in his commentaries on the Revised Penal Code, 1946
edition, page 94, says: "The provocation or threat must be sufficient, which
means that it should be proportionate to the act committed and adequate
to stir one to its commission" (emphasis supplied).
Sufficient provocation, being a matter of defense, should, like any other, be
affirmatively proven by the accused. This the instant appellant has utterly
failed to do. Any way, it would seem self-evident that appellant could never
have succeeded in showing that whatever remained of the effects of the
deceased's aggression, by way of provocation after the latter was already in
fight, was proportionate to his killing his already defeated adversary.
That provocation gave rise to a fight between the two men, and may be
said, not without reason, to have spent itself after appellant had shot the
deceased in his right breast and caused the latter to fall to the ground; or —
making a concession in appellant's favor — after the latter had inflicted
several bolo wounds upon the deceased, without the deceased so much as
having scratched his body, in their hand-to-hand fight when both were on
their feet again. But if we are to grant appellant a further concession, under
the view most favorable to him, that aggression must be deemed to have
ceased upon the flight of the deceased — upon the end of the first stage of
the fight. In so affirming, we had to strain the concept in no small degree.
But to further strain it so as to find that said aggression or provocation
persisted even when the deceased was already in flight, clearly accepting
defeat and no less clearly running for his life rather than evincing an
intention of returning to the fight, is more than we can sanction. It should
always be remembered that "illegal aggression is equivalent to assault or at
least threatened assault of an immediate and imminent kind.
353
Agresion ilegitima. — Agresion vale tanto como acometimiento.
Para que exista el derecho de defensa es preciso que se nos
acometa, que se nos ataque, o cuando menos, que se nos
amenace de atacarnos de un modo inmediato e inminente; v.
gr., desenvainando el puñal para herirnos con el o apuntando la
pistola para dispararla contra nosotros. (Viada, 5. a edicion, 173.)
After the flight of the deceased there was clearly neither an assault nor a
threatened assault of the remotest kind. It has been suggested that when
pursuing his fleeing opponent, appellant might have thought or believed that
said opponent was going to his house to fetch some other weapon. But
whether we consider this as a part or continuation of the self-defense
alleged by appellant, or as a separate circumstance, the burden of proof to
establish such a defense was, of course, upon appellant, and he has not so
much as attempted to introduce evidence for this purpose. If he really
thought so, or believed so, he should have positively proven it, as any other
defense. We can not now gratuitously assume it in his behalf.
It is true that in the case of United States vs. Rivera (41 Phil., 472, 474), this
Court held that one defending himself or his property from a felony violently
or by surprise threatened by another is not obliged to retreat but may pursue
his adversary until he has secured himself from danger. But that is not this
case. Here from the very start appellant was the holder of the stronger and
more deadly weapons — a revolver and a bolo, as against a piece of
bamboo called "pingahan" and a dagger in the possession of the deceased.
In actual performance appellant, from the very beginning, demonstrated his
superior fighting ability; and he confirmed it when after the deceased was
first felled down by the revolver shot in right breast, and after both
combatants had gotten up and engaged in a hand-to-hand fight, the
deceased using his dagger and appellant his bolo, the former received
several bolo wounds while the latter got through completely unscathed. And
when the deceased thereupon turned and fled, the circumstances were
such that it would be unduly stretching the imagination to consider that
appellant was still in danger from his defeated and fleeing opponent.
Appellant preserved his revolver and his bolo, and if he could theretofore so
easily overpower the deceased, when the latter had not yet received any
injury, it would need, indeed, an unusually strong positive showing — which
is completely absent from the record — to persuade us that he had not yet
"secured himself from danger" after shooting his weakly armed adversary in
the right breast and giving him several bolo slashes in different other parts
of his body. To so hold would, we believe, be unjustifiably extending the
doctrine of the Rivera case to an extreme not therein contemplated.
Under article 249, in relation with article 64, No. 2, of the Revised Penal
Code, the crime committed by appellant is punishable by reclusion
temporal in its minimum period, which would be from 12 years and 1 day to
14 years and 8 months. However, in imposing the penalty, we take into
consideration the provisions of section 1 of the Indeterminate Sentence Law
(Act No. 4103), as amended by Act No. 4225. Accordingly, we find appellant
guilty of the aforesaid crime of homicide and sentence him to an
indeterminate penalty of from 6 years and 1 day of prision mayor to 14 years
and 8 months of reclusion temporal, to indemnify the heirs of the deceased
in the sum of P2,000, and to pay the costs.
As thus modified, the judgment appealed from is hereby affirmed. So
ordered.
Pablo, Bengzon, Briones, Hontiveros, Padilla, and Tuason, JJ., concur.
MORAN, C.J.:
I certify that Mr. Justice Feria concurs in this decision.
Separate Opinions
PARAS, J., dissenting :
I agree to the statement of facts in so far as it concern what is called by the
majority the first stage of the fight. The following narration dealing with the
second stage is not however, in accordance with the record: "Having
sustained several wounds, the deceased ran away but was followed by the
accused (t.s.n. p. 6). After running a distance of about 200 meters (t.s.n. pp.
21, 108), the deceased was overtaken, and another fight took place, during
which the mortal bolo blow — the one which slashed the cranium — was
delivered, causing the deceased to fall to the ground, face downward
besides many other blows delivered right and left (t.s.n. pp. 6, 28)."
It should be noted that the testimony of witness Luis Ballaran for the
prosecution has been completely discarded by the lower court and we can
do no better in this appeal. Had said testimony been given credit, the
accused-appellant would appear to have been the aggressor from the
beginning, and the facts constitute of the first stage of the fight, as testified
to by said accused, should not have been accepted by the lower court. Now,
continuing his testimony, the accused stated: "Cuando yo paraba las
puñaladas el se avalanzaba hacia mi y yo daba pasos atras hasta llegar al
terreno palayero (t.s.n., p. 102). Y mientras el seguia avalanzandome
dandome puñaladas y yo seguia dando pasos atras, y al final, cuando el ya
354
quiso darme una puñalada certera con fuerza el se cayo al suelo por su
inercia (t.s.n., p. 102). Si, señor, yo daba pasos atras y tratando de parar la
puñalada (t.s.n., p. 108)."
It thus shown that the accused never pursued the deceased. On the
contrary, the deceased tried to continue his assault started during the first
stage of the fight, and the accused had been avoiding the blows by stepping
backward.
There may be error as to the exact distance between the guardhouse and
the place where the deceased fell. What is very clear is that it was during
the first stage of the fight that the deceased received a wound just below the
right chest, caused by a bullet that penetrated and remained in said part of
the body. According to the witness for the prosecution, that wound was also
fatal.
Since the lower court by its decision has considered the testimony of the
witnesses for the prosecution to be unworthy of credit, and, as we also
believe that said witnesses were really not present at the place and time of
the occurrence, this Court is bound by the testimony of the witnesses for the
defense as to what in fact happened, under and by which the appellant is
shown to have acted in self-defense.
Wherefore, he should be acquitted.
PERFECTO, J., dissenting:
Four witnesses testified for the prosecution. In synthesis their testimonies
are as follows: Luis Ballaran. — On May 29, 1943, at about 9 o'clock a.m.,
while the two accused Dioscoro Alconga and Rodolfo Bracamonte were in
search for home guards, Silverio Barion passed by. Alconga invited him for
breakfast. But Barion ran and Alconga followed him. When Barion looked
back, Bracamonte hit him with a stick at the left temple. The stick was
of bahi. Barion fell down. Alconga stabbed him with his bolo. Then he fired
with his paltik. After having been fired at with the paltik, Barion rose up and
ran towards his house. The two accused pursued him. Alconga stabbed him
right and left and Bracamonte hit him with his bahi. When Barion breathed
no more, the two accused went to the municipal building of San Dionisio.
The witness went home without approaching Barion. During the whole fight,
the witness remained standing in the home guard shed. At the time there
were no other people in the place. The witness is an uncle of the deceased
Barion. The shed was about half a kilometer from the farm in which the
witness was working. The place where Barion fell was about the middle
between the two places. The witness did not intervene in the incident nor
shouted for help. He did not tell anybody of the incident, neither the chief of
police, the fiscal, nor the justice of the peace.
Gil G. Estaniel, Police Sergeant of San Dionisio. — He went in the company
of the justice of the peace to the place of the incident. He saw the body of
the deceased Barion and examined his wounds. The deceased had wounds
in the head, arms, hands, lower jaw, neck, chest. The small finger of his
right hand was severed. There were other wounds. The cranium was
broken. At the right side of the chest there was a gunshot wound. After the
inspection, the body of the deceased was delivered to the widow. The
accused were arrested, but refused to testify.
Ruperto L. Libres, acting clerk of court since May 16, 1943. — He received
one paltik with blank cartridge, one bolo, one cane of bahi and one dagger,
which weapons he could not produce save the paltik. The other effects were
missing due to transfers caused by frequent enemy penetration in Dingle.
The bolo was a rusty working bolo. The dagger was 6 inches long, made of
iron. The bolo was 1 1/2 feet long. The bahi was a cane of average length,
about 2 inches wide and 3/4 of an inch thick.
Maria de Raposo. — On May 29, 1943, the witness was walking following
Silverio Barion. When the latter passed in front of the home guard shed,
Bracamonte pursued him and hit him with the bahi. Barion fell down;
Alconga approached him and stabbed him with his bolo, after which he shot
him with his paltik. When Barion saw that the accused were looking at Luis
Ballaran he rose up and ran towards a ricefield where he fell down. The
accused pursued him and stabbed him right and left. When Barion died, the
accused went away. Bracamonte shouted that he was ready to face the
relatives of the deceased who might feel aggrieved. The witness was about
twenty meters from the place of the incident. The deceased was her cousin.
The witness also passed in front of the shed, but does not know whether
Luis Ballaran who was in the shed was able to see her. She passed at about
three meters from Luis Ballaran. Before Bracamonte delivered the first blow
to Barion, the witness did not hear any exchange of words. When Barion
fell, the witness remained standing at the canal of the road about twenty
meters from Ballaran. On Thursday night, May 27, there was gambling
going on in the house of Mauricio Gepes. The witness played black jack with
Dioscoro Alconga against Silverio Barion.
The two accused and three witnesses testified for the defense, and their
testimonies are synthesized as follows:
Juan Collado. — The witness is a soldier who took part in the arrest of
Dioscoro Alconga, whom he delivered to Barredo with a revolver, a bolo and
a dagger.
355
Felix Dichosa. — In the morning of May 29, 1943, the witness was in the
home guard shed. When Bioy (Silverio Barion) was about to arrive at the
place, the witness asked him if he had fish. He answered no and then went
on his way. The witness went to the road and he heard Bioy saying: "So you
are here, lightning! Your hour has come." The witness saw Bioy striking
Dioscoro Alconga with the lever he used for carrying fish. Alconga was not
hit. Bioy tried to strike him again, but Alconga sought cover under the bench
of the shed. The bench was hit. When Bioy pursued him and gave him a
blow with a bolo, the witness heard a gunshot and he saw Bioy falling down.
Upon falling in a sitting position, Bioy took a dagger with the purpose of
stabbing Alconga. Upon seeing this, Alconga stabbed Barion right and left,
while Barion was coming against Alconga. When Barion fell into the canal,
the witness shouted for help. Rodolfo Bracamonte and Dalmacio Mendoza
came. When the witness came out from the shed and was at a distance of
ten brazas, he saw Ballaran, and requested him to intervene in the fight,
because the witness felt that Bioy was about to kill Alconga. Ballaran went
to their shed and the witness went to his house. At noon, Ballaran went to
the house of the witness to ask him to testify and gave him instructions to
testify differently from what actually had happened. The witness told him
that it would be better if Ballaran himself should testify and Ballaran
answered: "I cannot because I was not present. You can testify better
because you were present. I will go down to look for another witness."
Dalmacio Mendoza. — On the morning of May 29, 1943, he went to the
house of Rodolfo Bracamonte to borrow a small saw and one auger. While
the witness was conversing with Bracamonte, a gunshot was fired.
Bracamonte announced that he was going to the home guard shed and
stated: "That Coroy is a fool, because he fired a revolver which has but one
bullet." The witness followed. Upon reaching the shed they saw Felix
Dichosa, who said that Bracamonte and the witness should hurry because
Coroy was to be killed by Bioy. The witness saw Bioy falling. In front of him
was Alconga who took a dagger from the ground. The dagger was in
Barion's hand before he fell. Bracamonte asked Alconga: "Coroy, what did
you do to Silverio?" Alconga answered: "I killed Bioy, because if I did not he
would have killed me. My shirt was pierced by the dagger, and if I did not
evade I would have been hit." Bracamonte said: "Go to town, to the
authority, I will accompany you." After leaving the place, Alconga,
Bracamonte and the witness met Luis Ballaran who asked: "Rodolfo, what
happened to the boys?" Rodolfo answered: "Go and help Bioy because I am
going to bring Coroy to the town officer." Ballaran went to the place where
Barion was lying, while Alconga and Bracamonte went to town.
Adolfo Bracamonte. — His true name is Adolfo and not Rodolfo as stated in
the information, which was amended accordingly. He belies the testimonies
of Luis Ballaran and Maria de Raposo. At about 7 o'clock a.m. on May 29,
1943, he went to the home guard shed, he being the leader. When he found
it without guards, he called Alconga to mount guard and delivered to him
the paltik Exhibit A. The witness returned home to take breakfast. Dalmacio
Mendoza came to borrow a small saw and auger, because the witness is
also a carpenter. He heard a gunshot, and he went to the shed, followed by
Dalmacio. When they were approaching the shed, Felix Dichosa shouted:
"Come in a hurry, because Bioy is going to kill Dioscoro Alconga." The
witness asked: "Where are they?" Dichosa showed the place. The witness
went towards the place and he saw two persons fighting. One fell down.
Upon seeing Barion falling, the witness shouted to Alconga: "What
happened to you?" Alconga answered: "Manoy, I stabbed Bioy, because if I
did not he was to kill me," showing his shirt. When Barion fell down the
witness saw him with a dagger. Upon meeting him coming from the opposite
direction, Ballaran addressed Bracamonte: "Rodolfo, what happened?"
"Bioy is in the rice land. Help him because I am going to bring Dioscoro to
the town and I will return immediately." Ballaran went to the place where
Barion fell. On the way, Alconga was taken by soldier Juan Collado who
later brought him to the town of San Dionisio. The witness did not carry at
the time of the incident any cane of bahi nor did he carry one on other
occasions. The occupation of the deceased was selling fish and he used to
take much tuba. He was of aggressive character and sturdier than Alconga.
Once, Barion gave a fist blow to the witness and on another occasion
stabbed him with a bolo, wounding him in the head. For such stabbing,
Barion was held in prison for one month.
Dioscoro Alconga. — On May 27, Thursday, at night, he went to gamble in
the house of Mauricio Gepes. Mahjong, poker, monte and black jack were
being played in the house. Maria de Raposo invited Alconga to be her
partner in black jack against Barion who was then the banker. Each put a
share of P5. When Alconga placed himself behind Barion, the latter saw
Maria winking to Alconga. Barion looked back at Alconga saying: "Coroy it
seems that you are cheating. Son of a whore." Alconga answered: "Bioy you
are also son of a whore." Barion stood up to give a fist blow to Alconga who
pinned him to his sit and attempted to give him a fist blow. The owner of the
house separated them. Barion struck Maria de Raposo, because he was
losing in the game, threw away the cards, took the money from the table,
and rose to leave the place. While he was walking he addressed Alconga:
"Coroy you are son of a whore. Tomorrow I will give you a breakfast. You
failed to take lesson by the fact that I boloed the head of your brother,"
referring to Bracamonte. When Alconga saw Maria leaving the place, he
pursued her asking for his share of the winnings. Maria answered: "What
winnings are you asking for?" Alconga said: "You are like your cousin. Both
of you are cheaters." Maria went away insulting the accused. On The
morning of the 29th, Alconga went to one of his houses carrying an old
working bolo to do some repairing. He left his long combat bolo in one of his
house. On the way he met Bracamonte who instructed him to mount guard
in the home guard shed, because no one was there. Bracamonte gave him
356
a paltik. After staying about two hours in the shed, Bioy came and upon
seeing him, threw away his baskets and with his carrying lever gave a blow
to Alconga, saying "This is your breakfast." Alconga was not hit because he
dodged the blow, by allowing himself to fall down. He sought cover under a
bench with the purpose of going away. Barion gave him another blow, but
his lever hit the bench instead. When Alconga was able to come out from
the bench, Barion went to the other side of the shed with the intention of
striking him. Alconga took the paltik and fired. Barion fell down losing hold of
the lever. Both stood up at the same time; Barion took his dagger and
stabbed Alconga with it saying: "You are son of whore. Coroy, I will kill you."
Alconga took his bolo to stop the dagger thrust. Barion continued attacking
Alconga with dagger thrusts, while Alconga kept stepping back in the
direction of the rice lands. In one of his dagger thrusts, Barion fell down by
his own weight. Alconga took the dagger from his hand, and at the same
time Alconga heard his brother Bracamonte asking: "Coroy, Coroy, what is
that?" Alconga answered: "Manoy, I killed Bioy, because if I did not he
would have killed me." Bracamonte took the paltik, the bolo and the dagger
and pushing Alconga said: "Go to town." Alconga added: "Look, Bioy gave
me dagger thrusts, if I did not escape he would have killed me," showing his
torn shirt. Bracamonte said: "Go to town, I will bring you to the town officer."
On the way, they met Luis Ballaran who asked: "Rodolfo, what happened to
the boys?" Bracamonte answered: "Uncle Luis, go to help Silverio at the rice
land because I am going to bring my brother to town and I will return soon."
For all the foregoing we are convinced:
1. That the testimonies of Luis Ballaran and Maria de Raposo are unworthy
of credit. Both have been contradicted by the witnesses for the defense, and
the fact that the lower court acquitted Adolfo Bracamonte, shows that it
believed the theory of the defense to the effect that it is not true, as testified
to by Luis Ballaran and Maria de Raposo, that Bracamonte took active part
in the fight and it was he who gave the first blow to the deceased with
his bahi cane, causing him to fall. Ballaran's declaration to the effect that
aside from the two accused, the deceased and himself, no other people
were in the place, is directly contradicted by Maria de Raposo who said that
she even passed in front of Ballaran, within a few meters from him. There
being no way of reconciling the contradicting testimonies of Ballaran and
Maria and of determining who, among the two, declared the truth, we cannot
but reject both testimonies as unreliable. Felix Dichosa testified that Ballaran
went to his house to request him to testify with instructions to give facts
different from those which actually happened. Upon Dichosa's suggestion
that Ballaran himself testify, Ballaran had to confess that he did not see
what happened and he was going to look for another witness. The
prosecution did not dare to recall Ballaran to belie Dichosa.
2. That Adolfo Bracamonte did not take part in the fight which resulted in
Barion's death. When Bracamonte arrived at the place of the struggle, he
found Barion already a cadaver.
3. After rejecting the incredible version of Luis Ballaran and Maria de
Raposo, the only version available of what happened is the one given in the
testimony of Alconga, well-supported and corroborated by all the other
witnesses for the defense.
4. That according to the testimony of Alconga, there should not be any
question on the following:
(a) That Barion had a grudge against Alconga in view of the gambling
incident on the night of May 27, in which he promised to give Alconga a
breakfast, which upon what subsequently happened, was in fact a menace
to kill him.
(b) That while Alconga was alone in the home guard shed, Barion, upon
seeing him, suddenly attacked him with blows with his carrying lever.
(c) That Alconga, to defend himself, at first fired the only bullet available in
the paltik given to him by Bracamonte.
(d) That although Barion had fallen and lost hold of his carrying lever, he
was able to stand up immediately and with a dagger continued attacking
Alconga.
(e) That Alconga took his old rusty bolo to defend himself, against the
dagger thrusts of Barion, while at the same time stepping backwards until
both reached the rice land, where Barion fell dead.
(f) That the wounds received by Barion, who was sturdier and of aggressive
character, were inflicted on him by Alconga while defending himself against
the illegal aggression of Barion.
(g) That in view of the number of wounds received by Barion, it is most
probable that Alconga continued giving blows with his bolo even after Barion
was already unable to fight back.
(h) The theory of dividing the fight which took place in two stages, in the first
one, Barion being the aggressor, and in the second one, as the victim, finds
no support in the evidence. It seems clear to us that the fight, from the
beginning to end, was a continuous and uninterrupted occurrence. There is
no evidence upon which to base the proposition that there were two stages
357
or periods in the incident, in such a way that we might be allowed to
conclude that in fact there were two fights.
The fact that Barion died with many wounds might be taken against
appellant and may weaken the theory that he acted only in legitimate self-
defense. To judge, however, the conduct of appellant during the whole
incident, it is necessary to consider the psychology of a person engaged in a
life or death struggle, acting under the irresistible impulses of self-
preservation and blinded by anger and indignation for the illegal aggression
of which he was the victim. A person placed in such a crucial situation must
have to summon all his physiological resources and physical forces to rally
to the one and indivisible aim of survival and, to that end, placed his
energies on the level of highest pitch. In that moment of physical and
spiritual hypertension, to ask that a man should measure his acts as an
architect would make measurements to achieve proportion and symmetry in
a proposed building or a scientist would make a calibration, so that his acts
of self-defense should stop precisely at the undeterminable border line when
the aggressor ceases to be dangerous, is to ask the impossible. Appellant's
conduct must be judged not by the standards which may be exacted from
the supermen of the future, if progressive evolution may happen to develop
them. Appellant's conduct can only be tested by the average standards of
human nature as we found it, which has many limitations and defects. If in
trying to eliminate an actual danger menacing his own existence, appellant
was not able to moderate his efforts to destroy that menace, to the extent of
actually killing his aggressor, he is certainly not accountable. He is not an
angel. We must judge him as man, with its average baggage of faults and
imperfections. After all, the aggressor ought to know that he acted at his
risk, and that by trying to kill a human being he defied fate, he gambled his
own life. Fate is always stronger than all its challengers. He who gambles
with life, like all gamblers, in the end becomes the loser.
Peace cannot remain undisturbed and justice cannot remain unchallenged
unless all aggression is stopped, individual or collective. A great number of
human miseries are the natural fruits of aggression. One of the means of
curbing it is to give a conclusive notice to all aggressors, that not only are
they to pay very dearly for their acts, but that the victims of their aggression
are entitled, in self-defense, to avail themselves of even the most
devastating weapons. Those who allow themselves to run amuck in an
aggression spree cannot complain because the means of defense of the
victims happen to be destructive. There may be some narrow-minded
persons who would hold illegal the use by the Americans of the atomic
bomb to compel Japan to surrender. They must be followers of the
philosophy of the sheep. We prefer to follow the principle of dynamic self-
defense for the innocent. Those who are bent on destroying human beings,
must, before they are able to achieve their diabolical objective, be first
destroyed. Those who were killed at Hiroshima and Nagasaki may appeal to
our pity, but the millions whose lives were spared by the prompt and
spectacular ending of the war with the help of the atomic energy, are entitled
to justice, a justice which would have been denied them if the Americans,
swayed by unreasonable feminine compunctions, should have abstained
from using the weapon upon which were pinned the hopes and salvation of
those millions of innocent human beings. While those who cannot offend
and the defenseless may merit all our sympathy and kindness, those who
constitutes an actual menace to human life are liable to be relentlessly
crushed, until the last residuum of menace has been wiped out.
We vote to acquit appellant.
FIRST DIVISION
[G.R. No. L-3515. October 3, 1907. ]
THE UNITED STATES, Plaintiff-Appellee, v. ANDERSON MACK, Defendant-
Appellant.
Amzi B. Kelly, for Appellant.
Attorney-General Araneta, for Appellee.
SYLLABUS
1. EXCEPTION FROM CRIMINAL RESPONSIBILITY ON PLEA OF SELF-DEFENSE. —
An accused person is not entitled to complete exemption from criminal
responsibility on the plea of self-defense unless each and all of the following facts
are established to the satisfaction of the court: First, that there was an unlawful
aggression; second, that there was reasonable necessity for the employment of
the means taken to prevent or resist such unlawful aggression; third, that there
was no sufficient provocation on the part of the accused.
2. EFFORTS TO EVADE ASSAULT. — One who is unlawfully assailed need not
attempt to retreat where there is no reasonable ground to believe that by so doing
he can safely avoid the threatened attack; nor is he required to continue his
retreat when there is no reasonable ground to believe that he can do so with
safety.
DECISION
CARSON, J. :
358
The defendant was charged with the crime of asesinato (assassination) and
convicted of the crime of homicidio (homicide). From this judgment of conviction
he appealed to this court.
It is admitted that upon the night of May 4, 1906, the accused, a negro soldier,
shot and killed a municipal policeman named Estanislao Indic. The evidence of
record is contradictor and conflicting in the extreme, but we think that, giving the
accused the benefit of the doubt as to the veracity and credibility of the witnesses,
the following relation of the incidents, as the occurred must be held to be in
accordance with the weight of the evidence.
Just before the shooting, the accused was sitting on a bench a few feet back from
the street, in the town of Tacloban, in the Province of Leyte, in an open space
some 3 or 4 feet, width, between the tienda or content of a woman named
Olimpia and another building. The deceased, with another policemen, approached
the place directed Olimpia to close her tienda, and, later, ordered the accused and
another soldier who was standing near by to go to their quarters. The accused did
not obey this order, and it is probable that some words passed between the
soldiers, the policemen, and the woman which angered the deceased, though the
weight of the evidence clearly maintain the contention of the accused that he did
and said nothing to provoke or offend the deceased, except in so far as his failure
to obey the order to go to his quarters may have had that effect. The deceased,
who was standing some 10 or 12 feet from the accused, cursing and abusing him
for his failure to obey the order, wrought himself into a passion dragged himself
free from his companion, who was endeavoring to restrain him and take him
away, and started toward the accused, at the same time drawing his bolo and
brandishing it in a threatening manner. Thereupon the accused got up, drew his
revolver, and the deceased having then approached within a distance of from 3 to
6 feet, the accused fired three shots, one of which took effect in the left breast of
the deceased, just above the nipple, and another in the back of his head.
There was some testimony tending to show that when the shooting took place the
deceased was under the influence of liquor, and that he bore resentment against
the accused arising out of a quarrel about a woman, but these contentions are not
satisfactorily sustained by the evidence, nor it is necessary to take them into
consideration in deciding the case.
Upon the foregoing statement of facts the defendant’s contention that he shot the
deceased in self-defense and is therefore exempt from punishment, must be
sustained
The trial court was of opinion that the evidence offered by the accused established
"an in complete defense," which entitles the defendant to a reduction of the
penalty, but not to complete exception from punishment; in support of his opinion
the trial judge reasons as follows:
jgc:cha nrob les.co m.ph
"The accused claims exemption from criminal liability on the ground that the act
was committed in self defense. At the outset of the discussion of this point it may
be well to quote the following from an opinion cited by his counsel: jgc:cha nrob les.co m.ph
"‘The defendant, having admitted the killing, has assumed the task of establishing
his defense, not that the burden of proof shifted in the case, but it was necessary
for him to, establish his defense to the satisfaction of the court.’ (United State v.
Capisonda 1 Phil. Rep., 575.)
"It is true that the presumption of innocence is always in favor of the accused, but
when, as here, the Government has actually proven the crime of homicidio, it
need not go, farther and negative a particular and exculpatory plea on the part of
the accused such as self-defense. That must be established by the accused
himself ’to the satisfaction of the court.’
"Article 8, subdivision 4, of the Penal Code prescribes the elements which must
exist in order that self-defense may be established. Counsel for the accused
maintains that it is sufficient if he establishes two of these elements, namely,
illegal aggression and lack of sufficient provocation. But in each of the authorities
which he cites on this propositions, although the court does not emphasize it,
there was also present the third element "reasonable necessity of the means
employed to prevent or repel it" (aggression). Thus in United States v.
Salandanan (1 Phil. Rep., 478) the court lays stress (p. 479) on the fact that "it
can not be asserted that the danger to the defendant had ceased" because
disarmament by the deceased "was the contingency which the accused might well
have reasonable feared." In other words, there was or seemed to be a
"reasonable necessity" or defendant’s part of continuing the struggle. So in United
States v. Patala (2 Phil. Rep., 752) the court says (p. 756): "Considering the
nature of the aggression the defendant could have reasonably believed that his
life was in danger and that it was a case of life or death with him." This again
could mean nothing less than that the means employed seemed reasonably
necessary. In United States v. Regis (2 Phil. Rep., 113) the deceased was the
aggressor and the accused, although he had succeeded in wresting the bolo from
the deceased Languido inflicted the wounds because (p. 116) "fearing that
Languido might again possess himself of the weapon In none of these cases does
not court say that this reason able necessity of the means employed" is not
essential the establishment of self-defense and that is failure to especially
mention this element is not to be construed prescribing the rule for which counsel
contends is parent from United States v. De Castro (2 Phil. Rep., 67), in which the
opinion was written by the name judge (Mapa) who wrote the opinions in United
States Salandanan and United States v. Patala (supra) and where after reviewing
the facts it is observed (p. 70):
jgc:chan rob les.com. ph
"‘. . . such means were not reasonably required or necessary to repel the attack .
. . It follows that there is absent in this case one of the three requisites section 4
of article 8 of the code — that is, the reasonable necessity of the means employed
to repel the attack — in order that the necessity for self-defense may be a
complete exemption from criminal liability.’
"Indeed such a constructions as counsel urges would effect a virtual repeal of
article 8, subdivision 4, which recognizes the validity of self-defense only provide
’there are the following attendant circumstances; not, as in article 403, ’if the
deed is attended by any of the following circumstances.’ It is clear therefore that
in order to show himself entitled to complete acquittal in this case the accused
must ’establish to the satisfaction of the court’ a ’reasonable necessity of the
means employed to prevent or repel’ the attack. On this point let us hear the
accused.
"He testifies (Def., pp. 47, 49) that saw the deceased approaching when he was
’quite a distance away, . . . might have been or 10 feet.’ This was apparent (p.
359
51) before he had turned his dead around and seems that the rear entrance was
obstructed by a barrel and other articles mentioned. He had been sitting (Def., pp.
21, 42) on a each between the tienda and the next house on the right. But he
could not have been seated much in the rear of the front of either house for
Adams, who was leaning against the corner of the tienda, was not more than 2
feet way (Def., pp. 9, 22), near enough indeed for the accused to reach over and
touch him (Def., pp. 21, 47) and it seems also (p. 39) that the tendera who had
been seated on the steps behind the accused was only about a foot and a half
from Adams. Moreover one step seems to have bought the accused to the edge of
the street (Def., pp. 19, 459. He testifies (Def., p. 49) that there were no fixtures
built into the street and he mentions no obstruction of the right except the house
and its inmate, Townsend, who was standing on the corner (Def., pp. 48, 49).
According to his own testimony the accused, after recognizing his danger, had
time enough to rise from his seat, look backward for a way of escape, push Adams
aside, extricate his revolver from the left side of his oath (Def., p. 43) with his
right hand (Def., p. 2), change the weapon from the right hand to the left (Def.,
p. 43), and fire the shot that killed the deceased. Since one step brought him to
the edge of the street and he ’had to wheel to the right’ anyway (Def., p. 19), it
would seem that during this interval he might have found time to move farther to
the right, passing around Townsend if necessary, in order to dodge the deceased.
While the latter was coming 9 or 10 feet, it should not have been impossible, and
hardly difficult, for the accused to have covered the distance necessary to place
him out of the deceased’s path. If this case were being tried in any of the Federal
courts it would be necessary for the accused to show, in order to establish his plea
of self-defense, that he had retreated as far as he safely could, even though he
was without fault and was in no danger of a murderous attack. [125 Am. & Eng.
Encyc. of Law (2d ed.) , p. 271-272. ] This is not the rule in all or perhaps a
majority of the State courts, but in view of the recent decision in United States v.
Grafton 1 (4 Off. Gaz., 364) it seems more than likely that the above rule would
be followed in this jurisdiction. Besides, can it be said that there was ’a reasonable
necessity’ of shooting the deceased so long as the accused could escape?
"Again if escape were impracticable, was it ’reasonably necessary’ for the accused
to employ a firearm to repel or prevent the threatened attack? The Supreme Court
has held, in considering this section, that it is not necessary to use revolver in
order to repel an attack with a calicut (United States v. Mendoza, 2 Phil. Rep.,
109), nor to inflict a mortal wound with a dagger when assailed with a bamboo
club. (United States v. Castro, 2 Phil. Rep., 67.)
"The bolo carried by the deceased is a formidable-looking weapon with a blade
fourteen and a half inches in length, but it is not a sharp-pointed instrument and
the blade is almost blunt through rust and dullness. Indeed it is more than
doubtful whether, if applied with ordinary force against any portion of the
accused’s body covered by clothing, it would penetrate the latter. According to the
testimony of the accused and his witnesses the deceased was hardly in condition
to use the weapon with more than ordinary force. Following is the accused’s
description of the appearance of the deceased at the time (Def., p. 53): jgc:chanro bles.c om.ph
"‘He did not walk exactly straight, but he was not exactly staggering about; he
was doing the same as any other than man under the influence of liquor.’
"This is corroborated by Adams (Def., p. 4) and the tendera (p. 14), A man under
the influence of liquor and unable to walk straight cold hardly wield a weapon with
full force or in such a manner that it could not be dodged.

"Moreover the accused admits (Def., pp. 51, 79) — and it is a material
circumstance [25 Am. & Eng. Encyc. of Law. (2 ed.) , 282] — that he was taller
than the deceased and he is unable to say (Def., p. 52) that the latter was taller
the Lieutenant Soledad, who was then present in court. If not, the deceased must
have been four or five inches shorter than the accused and he would have had to
reach accordingly in order to strike the accused in the face or head, which would
be the most vulnerable because least protected portion. Again the accused is a
man of powerful physique, well proportioned and strong of limb. Could he not
have parried the blow or wrested the weapon from the man who he says was
drunk and unable to walk straight?
"Finally, if the use of a firearm seemed necessary, could it not least have been
employed in such a way that fatal results might have been avoided? a shot
directed at the menacing arm with the same unerring accuracy as that actually
fired would have stayed the threatened blow. A bullet in the leg or foot not less
surely than that which pierced the assailant’s heart would have halted him and
still spared his life. But the accused directed his first ball at a vital spot and
although he saw that this ’took effect’ and that the deceased ’became helpless
within a second’ (Def., p. 43) he fired two additional shots (Def., pp. 11, 18, 28-
44). This certainly did not indicate that the accused was doing no more than was
’reasonably necessary to prevent or repel’ the attack. It demonstrates a
considerable degree of recklessness and, in spite of the witnesses who speak of
his apparent ’coolness,’ that the accused was in fact greatly excited. Human life is
too sacred and the tendency to disregard it too common to justify a court in
finding that the destruction of it under such circumstances is wholly blameless.
"But although the accused has not established ’to the satisfaction of the court . . .
reasonable necessity’ for killing the deceased in order to save himself, he has
made what the courts call an ’incomplete defense’ under article 86 of the Penal
Code (United States v. Mendoza, 2 Phil., Rep., 109; United States v. De Castro, 2
Phil. Rep., 67), which entitles him to a reduction of the penalty by two degrees."
libra ry
cralaw vi rtua1aw
We agree with the trial court that on a plea of self-defense under the provisions of
case 4 of article 8 of the Penal Code, an accused person is not entitled to
exemption from criminal responsibility unless each and all the following facts are
established to the satisfaction of the court:
chanrob1e s virtual 1aw lib rary
First. That there was an unlawful aggression;
Second. That there was reasonable necessity for the employment of the means
taken to prevent or resist such unlawful aggression;
Third. That there was no sufficient provocation on the part of the accused.
We think it affirmatively appears from the evidence of record that there was an
unprovoked, illegal aggression on the part of the deceased, as held by the trial
court, after a careful analysis of the testimony; and further that there was
reasonable necessity for the use of the means employed by the accused to defend
himself from this unlawful aggression.
The trial court held that in shooting and killing the deceased, the defendant
adopted a mode of defense which was not "reasonable necessary," because it was
of opinion, first, that it was possible by taking to flight he might have escaped
360
injury, second, that he might have parried the blow aimed at him or wrested the
bolo from his assailant without the necessity for the use of his revolver; and third,
against his assailant, the accused might have successfully defended himself
against the attack by directing his aim at the arm or hand with which the bolo was
held, or at the legs or feet of his assailant.
We do not think that under all the circumstances in this case it was the duty of
the defendant to take refuge in flight. Without attempting to lay down a rule
covering all the cases wherein it is the duty of one who is unlawfully assailed to
’give ground" instead of resisting the attack, it is sufficient to hold, that under
such circumstances that assailed person need not attempt to retreat where there
is no reasonable ground to believe that by so doing he can safely avoid the
threatened attack; not is he required to continue his retreat when there is no
reason able ground to believe that he can do so with safety. These prepositions
fall within the rule of the Federal courts relied upon in the opinion of the trial court
and applied by him to the facts in this case. (Wheaton’s Criminal Law, 10th ed., p.
486, and many cases there cited; Bishop’s Criminal Law, 8th ed., secs. 864 and
869, and cases cited; Clark’s Criminal Law, p. 154, and cases cited.)
The defendant was sitting on a beach in a narrow alleyway when the deceased
started to advance upon him from a distance of from 9 to 12 feet, brandishing a
formidable looking bolo." We do not think that under the circumstances the
defendant had reasonable grounds to believe that he could safely make his escape
by flight. In order to do so it was necessary that the defendant, in the second or
two required by his assailant to advance the couple of space which would bring
him within striking distance, should recognize his danger, resolve upon flight
rather than resistance, rise from his seat, look backward only to discover that
there were obstacles with made it impracticable to escape to the rear, step
forward a few feet toward his approaching assailant, turn to the right or to the
left. on reaching the street, thus exposing his unprotected body to this assailant’s
attack, and finally distance his pursuer in flight. If the deceased was in fact
endeavoring to reach the defendant and to strike him with his bolo, it is very
doubtful whether there was time to avoid the blow by instant flight; certainly the
accused had reasonable grounds to believe that he could not hope to make his
escape with safety; and even though it were true that "he might have found time"
to dodge the deceased" and make his escape by flight, yet it is too much to ask of
one who is in imminent peril of felonious and murderous attack that without
reasonable grounds to believe can safely do so, he should "give ground" rather
than use any other more certain means to defend himself which he may have at
hand.
Nor can we agree with the opinion of the trial court that there was no reasonable
necessity for the use of the revolver because the deceased was a smaller man
than the accused and perhaps under the influence of liquor, or because on
examination. after the occurrence, it is discovered that the bolo in the hands of
the deceased was "almost blunt through rust and dullness." cralaw virtua 1aw lib rary
Mere physical superiority in no protection to an unarmed man, as against an
assailant armed with a large bolo, and if it be true that the deceased was under
the influence of liquor when he made that attack, his intoxication probably
rendered him the more dangerous unless he was so drunk as to be physically
helpless, which is not suggested in the evidence.
Nor does the fact that after the occurrence the blade of the bolo was found to be
"almost blunt through rust and dullness," and that it is "more than doubtful
whether if applied with ordinary force against any portion of the accused’s body
covered by clothing it would penetrate the latter," justify the conclusion that there
who no reasonable necessity for the defendant’s use of the only weapon at land to
resist the onslaught of his adversary. Lying on the desk in the trial court, in the
broad light of day, that bolo was, in the language of the trial court a "formidable
looking weapon, with a blade fourteen and a half inches in length;" the accused,
in apparent imminent danger of his life, court not reasonably be excepted to take
the chance that mere ordinary force would be used in striking, or that the blow
would be given upon some protected part of his body, or that the cutting edge of
the blade was not keen enough to give him his death blow.
man with a drawn bolo in his hand might prove to be no mean antagonist at close
quarters.
The judgment of the trial court is reversed and the appellant acquitted of the
crime with which he was charged, with the costs of both instances de oficio; and if
in custody, he will be discharged forthwith, or if a liberty under his bond will be
cancelled and his sureties exonerated. ordered.
Torres, Johnson, Willard, and Tracey, JJ., concur.
Arellano, C.J., dissents.

The findings of facts occurring in the cases cited in the opinion of the trial judge
are not applicable in this case. On a plea of self-defense the question as to the
"reasonable necessity" for the use of the means employed is one of fact to be Republic of the Philippines
determined in accordance with the particular facts proven in each case. SUPREME COURT
Manila
In the case of the United States v. Mendoza (2 Phil. Rep., 109), the court held
that the character of the weapon in the hands of the aggressor, a calicut, was
such that in our opinion the defendant could not have reasonably believed that it EN BANC
was necessary to kill his assailant in order to repel the attack. A calicut is a
comparatively harmless weapon. It is an instrument shaped like a small chisel G.R. No. L-35524 March 18, 1932
(escoplo) with no point or cutting edge on either side, and is used for the purpose
of taking out the contents of betel nuts or the like.
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
In the case of the United States v. De Castro (2 Phil. Rep., 67) the accused vs.
inflicted a mortal wound with a dagger and the court held that such means were JULIAN SUMICAD, defendant-appellant.
not reasonably required or necessary to repel the attack, in view of the fact it was
made with nothing more than a piece of bamboo (una simple caña partida), a
weapon insufficient to put the life of the person attacked in imminent peril, more Felipe K. Medina for appellant.
especial in consideration of the significance of the attack itself, for, according to Attorney-General Jaranilla for appellee.
the witnesses, the blow struck by the deceased did not even bruise the accused.
STREET, J.:
A murderous attack with a formidable-looking boo is a very different from an
assault with a small chisel or a piece of bamboo, and the fact that this court has
held that the taking of life was not reasonably necessary in defending oneself This appeal has been brought to reverse a judgment of the Court of First
against assault in the latter cases does not sustain a ruling that taking the life of Instance of the Province of Occidental Misamis, finding the appellant, Julian
one’s assailant in the former case may not become reasonably necessary in the Sumicad, guilty of the offense of homicide and sentencing him to undergo
defense of one’s person, as we think it was in the case at bar. imprisonment for twelve years and one day, reclusion temporal, and
Finally, if it be admitted that it was reasonably necessary to make use of the
requiring him to indemnify the family of the deceased in the amount of
revolver, it would be unreasonable to hold that in the shades of night the P1,000, as well as to pay the costs of prosecution.
defendant, with his adversary advancing upon him and within a few feet of
striking distance, should be held responsible for a failure to take deliberate and On February 23, 1931, the accused, a resident of Buenavoluntad, in the
careful aim at the arm or hand that held the bolo or at the legs or the effect of his municipality of Plaridel, Occidental Misamis, was engaged with others in the
assailant. The reasonable and natural thing for him to do under the circumstances
was to fire at the body of his opponent, and thus make sure of his own life.
gratuitous labor of hauling logs for the construction of a chapel in the barrio
above-mentioned. At about 5.30 o'clock in the afternoon on the day
It is suggested that since the first shot inflicted a fatal wound there was no mentioned, when the laborers were resting from the work of the day, one
necessity for the firing of the two succeeding shows in order to prevent or repel Segundo Cubol happened to pass the place where the accused was sitting.
the attack. The record discloses that there shots were fired in rapid succession. Prior to this date the accused had rendered five and one-half days service to
Not every wound which proves fatal is sufficient to stop an enemy’s attack, and
Cubol, and as the latter passed, the accused said to him, "Segundo, pay me
the accused and his assailant were so close at hand that until the assailant fell to
the ground it can be said that the accused was out of danger. Even a wounded
for the five and one-half days work for which you owe me." Cubol replied,

361
"What debt!," an exclamation which was followed by an insulting expression.
At the same time he struck the accused with his fist. The accused arose
from the log upon which he was sitting and moved backward, trying to
escape, but Cubol pursued him and continued striking him with his fists. As
the accused receded he found himself cornered by a pile of logs, the wings
of which extended out on either side, effectually preventing any further
retreat. As Cubol pressed upon him, the accused drew his bolo and
delivered a blow on Cubol's right shoulder. Upon this Cubol lunged at the
accused with the evident intention of wresting the bolo from the accused. To
prevent this the accused struck two other blows with the bolo, inflicting two
deep cuts on Cubol's forehead above the left eye. One of these blows broke
through the cranium. The other made a cut extending from the left eyebrow
to the nose and upper lip. Upon finding a seat on a log nearby. A witness,
named Francisco Villegas, who came up in a moment, after learning
something about the matter, asked Cubol whether he had struck the
accused blows with his fist. Cubols replied that he had. The witness Villegas
then turned to the accused, who was standing a short distance away, and
told him to put up his bolo and go to the poblacion. Acting upon this
suggestion the accused immediately repaired to the office of the justice of
the peace and surrendered himself to the authorities. Cubol lived only an
hour or so, and died from the effect of the wounds received. In one of the
pockets of the deceased a knife was found, and the accused testified that,
when he struck the deceased with his bolo, the latter was attempting to draw
a knife from his pocket.
The accused was 25 years of age when this case was tried, has a height of
5 feet and 1-½ inches, and weight of 105 pounds. The deceased appears to
have been taller, larger and stronger man. The evidence shows that the
deceased was quarrelsome and in the habit of making frequent trouble by
fighting in the places where he happened to be present with others. In the
local courts he had been convicted and sentenced to jail for assault and
battery in two different cases. In another case he was convicted of the
offense of inflicting minor physical injuries, being sentenced to imprisonment
for one month and one day. In still another case he had been convicted of
theft and sentenced to imprisonment for the same period of one month and
one day. The proof leaves no reason to doubt that the deceased was hot-
tempered and that he had the reputation of being a trouble maker. It is a
safe inference from this proof — and there is nothing to the contrary, — that
the deceased was with good reason considered by his neighbors to be a
dangerous man.
From the facts above stated it is evident that the quarrel which resulted in
the death of Segundo Cubol was of his own making, and that the accused
was not materially to blame in bringing about the trouble. Two of the
elements of self-defense were therefore clearly present, namely, that the
deceased was the aggressor and that there was lack of sufficient
362
provocation on the part of the accused. The only further question that can
therefore arise in discussion the criminal liability of the accused is whether
there was reasonable necessity for the means employed by him to prevent
or repel the aggression to which he was subjected. Upon this point it will be
noted that, when the aggression was begun by the deceased, the accused
retreated until he was cornered in the angle of a pile of logs. His further
retreat was this effectually cut off both in the rear and at the sides. In
response to the blows which the deceased delivered with his fists, the
accused first delivered a cut on the left shoulder of the deceased; but, if we
rightly interpret the transcript of the record on this point , the sanitary officer
who exclaimed the body of the deceased meant to say that this wound
alone could not have resulted in death. This we consider to be the decisive
turning point in the case. Upon receiving that cut the deceased should have
been admonished that further aggression on his part would be met by
determined resistance and that any further advance would be at grave peril
to himself. Instead of acting upon this warning, the deceased pressed
forward in the attempt to possess himself of the bolo, the only means of
defense then at the command of the accused.
Under these circumstances what might the accused have been reasonably
expected to do. Was he to surrender the weapon to his assailant, a larger
and stronger man than himself, who was now infuriated by the blood that
had been drawn from his shoulder? Or was he justified in keeping the
weapon in his hands and, as an ultimate resort, in using it as a means for
his own defense? Our reply is that he was justified in pursuing the latter
alternative; for it would probably have been an act of suicide to permit that
weapon to pass into the hands of his assailant. In judging a question of this
kind the reputation of the deceased for violence is pertinent, for it tends to
show that when the fatal blows were struck the accused had reasonable
grounds for believing that he was in grave peril to life or limb.
It is undoubtedly well established in jurisprudence that a man is not, as a
rule, justified in taking the life of one who assaults him with his fist only,
without the use of a dangerous weapon. The person assaulted must, in such
case, either resist with the arms that nature gave him or with other means of
defense at his disposal, short of taking life. But that rule contemplates the
situation where the contestants are in the open and the person assaulted
can exercise the option of running away. It can have no binding force in the
case where the person assaulted has retreated to the wall, as the saying is,
and uses in a defensive way the only weapon at his disposal. One is not
required, when hard pressed, to draw fine distinctions as to the extent of the
injury which a reckless and infuriated assailant might probably inflict upon
him (Browell vs. People, 38 Mich., 732). And it was not incumbent on the
accused in this case, when assailed by a bully of known violent disposition,
who was larger and stronger than himself. On the contrary, under the
circumstances stated, he had the right to resist the aggression with the bolo,
and if he unfortunately inflicted a fatal blow, it must be considered to have reasonable belief that the defendant would continue the attack with that
been given in justifiable self-defense. Upon this point it may be recalled that weapon.
the deceased, when asked about the circumstances of the homicide,
admitted that he himself was the aggressor; and it is noteworthy that he Villamor, J., concurs.
used no word placing blame upon the accused.
OSTRAND, J., dissenting:
We are of the opinion that all the elements necessary to constitute justifiable
self-defense were present in this case and the accused should have been I cannot fully agree with the majority in this case and therefore dissent.
acquitted.

The judgment appealed from will therefore be reversed and the appellant EN BANC
absolved from the information, with costs of both instances de oficio. So
ordered.

Malcolm, Romualdez, Villa-Real and Imperial, JJ., concur. [G.R. No. 135981. January 15, 2004]
Johnson, J., reserves his vote.

PEOPLE OF THE PHILIPPINES, appellee,

Separate Opinions
AVANCEÑA, C.J., dissenting:
I dissent. In my opinion, there is but an incomplete self-defense here. The
defendant's act in wounding the deceased with a bolo so as to bring about
the latter's death, was not a reasonably necessary means of defending
himself against the other's attack, which was but a matter of fisticuffs. The
Supreme Court of Spain has held this doctrine in many cases; e. g., where
the deceased attacked the defendant with his fists (November 29, 1883;
May 3, 1888; and May 9, 1911); where the deceased, for no particular
reason, threw himself upon the defendant, caught him by the throat, and
tried to choke him (November 4, 1910); where the deceased boxed the
accused, knocking him down, and keeping him underneath (November 28,
1910); and where the deceased attacked the accused with an umbrella
(April 22, 1896). In all these cases it was not held that the defendant acted
with full justification in self-defense. Our own reports contain ruling of the
like tenor; in the earliest case, the deceased attacked the accused with a
piece of bamboo (U.S. vs. De Castro, 2 Phil., 67), and in the latest, he
attacked the defendant with his fists (G.R. No. 34750).1 In neither was it held
that a complete case of self-defense had been made out. Nor is the
defendant's case improved by the consideration that he aimed the first blow
at the deceased's arm, and delivered the last two blows, which caused
death, after had attempted to wrench away the bolo; for, having received the
first blow on the arm, the deceased was justified in acting as he did, in the
363
vs. MARIVIC GENOSA, appellant.
DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer
for acquittal on a novel theory -- the battered woman syndrome
(BWS), which allegedly constitutes self-defense. Under the proven
facts, however, she is not entitled to complete exoneration
because there was no unlawful aggression -- no immediate and
unexpected attack on her by her batterer-husband at the time she
shot him.
Absent unlawful aggression, there can be no self-defense,
complete or incomplete.
But all is not lost. The severe beatings repeatedly inflicted on
appellant constituted a form of cumulative provocation that broke
down her psychological resistance and self-control. This
psychological paralysis she suffered diminished her will power,
thereby entitling her to the mitigating factor under paragraphs 9
and 10 of Article 13 of the Revised Penal Code.
 In addition, appellant should also be credited with the
extenuating circumstance of having acted upon an impulse so
powerful as to have naturally produced passion and obfuscation.
The acute battering she suffered that fatal night in the hands of her
batterer-spouse, in spite of the fact that she was eight months
pregnant with their child, overwhelmed her and put her in the
aforesaid emotional and mental state, which overcame her reason
and impelled her to vindicate her life and her unborn childs.
Considering the presence of these two mitigating
circumstances arising from BWS, as well as the benefits of the
Indeterminate Sentence Law, she may now apply for and be
released from custody on parole, because she has already served
the minimum period of her penalty while under detention during
the pendency of this case.
The Case
For automatic review before this Court is the September 25,
1998 Decision[1] of the Regional Trial Court (RTC) of Ormoc City
(Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa
guilty beyond reasonable doubt of parricide. The decretal portion
of the Decision reads:
WHEREFORE, after all the foregoing being duly considered, the Court
finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable
doubt of the crime of Parricide as provided under Article 246 of the
Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding
treachery as a generic aggravating circumstance and none of mitigating
circumstance, hereby sentences the accused with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the deceased
the sum of fifty thousand pesos (P50,000.00), Philippine currency as
indemnity and another sum of fifty thousand pesos (P50,000.00),
Philippine currency as moral damages.[2]
The Information[3] charged appellant with parricide as follows:
364
That on or about the 15th day of November 1995, at Barangay Bilwang,
Municipality of Isabel, Province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with
intent to kill, with treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault, hit and wound one
BEN GENOSA, her legitimate husband, with the use of a hard deadly
weapon, which the accused had provided herself for the purpose,
[causing] the following wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.
Face, black, blownup & swollen w/ evident post-mortem
lividity. Eyes protruding from its sockets and tongue slightly
protrudes out of the mouth.
Fracture, open, depressed, circular located at the occipital bone
of the head, resulting [in] laceration of the brain, spontaneous
rupture of the blood vessels on the posterior surface of the
brain, laceration of the dura and meningeal vessels producing
severe intracranial hemorrhage.
Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/
shedding of the epidermis.
Abdomen distended w/ gas. Trunk bloated.
which caused his death.[4]
With the assistance of her counsel,[5] appellant pleaded not
guilty during her arraignment on March 3, 1997. [6] In due course,
she was tried for and convicted of parricide.
The Facts
Version of the Prosecution
 The Office of the Solicitor General (OSG) summarizes the
prosecutions version of the facts in this wise:
Appellant and Ben Genosa were united in marriage on November 19,
1983 in Ormoc City. Thereafter, they lived with the parents of Ben in
their house at Isabel, Leyte. For a time, Bens younger brother, Alex, and
his wife lived with them too. Sometime in 1995, however, appellant and
Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel,
Leyte where they lived with their two children, namely: John Marben and
Earl Pierre.
On November 15, 1995, Ben and Arturo Basobas went to a cockfight
after receiving their salary. They each had two (2) bottles of beer before
heading home. Arturo would pass Bens house before reaching his. When
they arrived at the house of Ben, he found out that appellant had gone to
Isabel, Leyte to look for him. Ben went inside his house, while Arturo
went to a store across it, waiting until 9:00 in the evening for
the masiaorunner to place a bet. Arturo did not see appellant arrive but on
his way home passing the side of the Genosas rented house, he heard her
say I wont hesitate to kill you to which Ben replied Why kill me when I
am innocent? That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas rented house appeared uninhabited
and was always closed.
On November 16, 1995, appellant asked Erlinda Paderog, her close friend
and neighbor living about fifty (50) meters from her house, to look after
her pig because she was going to Cebu for a pregnancy check-up.
Appellant likewise asked Erlinda to sell her motorcycle to their neighbor
Ronnie Dayandayan who unfortunately had no money to buy it.
That same day, about 12:15 in the afternoon, Joseph Valida was waiting
for a bus going to Ormoc when he saw appellant going out of their house
with her two kids in tow, each one carrying a bag, locking the gate and
taking her children to the waiting area where he was. Joseph lived about
fifty (50) meters behind the Genosas rented house. Joseph, appellant and
her children rode the same bus to Ormoc. They had no conversation as
Joseph noticed that appellant did not want to talk to him.
On November 18, 1995, the neighbors of Steban Matiga told him about
the foul odor emanating from his house being rented by Ben and
365
appellant. Steban went there to find out the cause of the stench but the
house was locked from the inside. Since he did not have a duplicate key
with him, Steban destroyed the gate padlock with a borrowed steel saw.
He was able to get inside through the kitchen door but only after
destroying a window to reach a hook that locked it. Alone, Steban went
inside the unlocked bedroom where the offensive smell was coming
from. There, he saw the lifeless body of Ben lying on his side on the bed
covered with a blanket. He was only in his briefs with injuries at the back
of his head. Seeing this, Steban went out of the house and sent word to
the mother of Ben about his sons misfortune. Later that day, Iluminada
Genosa, the mother of Ben, identified the dead body as that of [her] son.
Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then
assigned at the police station at Isabel, Leyte, received a report regarding
the foul smell at the Genosas rented house. Together with SPO1 Millares,
SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the
house and went inside the bedroom where they found the dead body of
Ben lying on his side wrapped with a bedsheet. There was blood at the
nape of Ben who only had his briefs on. SPO3 Acodesin found in one
corner at the side of an aparador a metal pipe about two (2) meters from
where Ben was, leaning against a wall. The metal pipe measured three (3)
feet and six (6) inches long with a diameter of one and half (1 1/2) inches.
It had an open end without a stop valve with a red stain at one end. The
bedroom was not in disarray.
About 10:00 that same morning, the cadaver of Ben, because of its
stench, had to be taken outside at the back of the house before the
postmortem examination was conducted by Dr. Cerillo in the presence of
the police. A municipal health officer at Isabel, Leyte responsible for
medico-legal cases, Dr. Cerillo found that Ben had been dead for two to
three days and his body was already decomposing. The postmortem
examination of Dr. Cerillo yielded the findings quoted in the Information
for parricide later filed against appellant. She concluded that the cause of
Bens death was cardiopulmonary arrest secondary to severe intracranial
hemorrhage due to a depressed fracture of the occipital [bone].
Appellant admitted killing Ben. She testified that going home after
work on November 15, 1995, she got worried that her husband who was
not home yet might have gone gambling since it was a payday. With her
cousin Ecel Arao, appellant went to look for Ben at the marketplace and
taverns at Isabel, Leyte but did not find him there. They found Ben drunk
upon their return at the Genosas house. Ecel went home despite
appellants request for her to sleep in their house.
Then, Ben purportedly nagged appellant for following him, even
challenging her to a fight. She allegedly ignored him and instead attended
to their children who were doing their homework. Apparently
disappointed with her reaction, Ben switched off the light and, with the
use of a chopping knife, cut the television antenna or wire to keep her
from watching television. According to appellant, Ben was about to
attack her so she ran to the bedroom, but he got hold of her hands and
whirled her around. She fell on the side of the bed and screamed for help.
Ben left. At this point, appellant packed his clothes because she wanted
him to leave. Seeing his packed clothes upon his return home, Ben
allegedly flew into a rage, dragged appellant outside of the bedroom
towards a drawer holding her by the neck, and told her You might as well
be killed so nobody would nag me. Appellant testified that she was aware
that there was a gun inside the drawer but since Ben did not have the key
to it, he got a three-inch long blade cutter from his wallet. She however,
smashed the arm of Ben with a pipe, causing him to drop the blade and
his wallet. Appellant then smashed Ben at his nape with the pipe as he
was about to pick up the blade and his wallet. She thereafter ran inside
the bedroom.
Appellant, however, insisted that she ended the life of her husband by
shooting him. She supposedly distorted the drawer where the gun was
and shot Ben. He did not die on the spot, though, but in the
bedroom.[7](Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
1. Marivic and Ben Genosa were allegedly married on November 19,
1983. Prior to her marriage, Marivic had graduated from San Carlos,
Cebu City, obtaining a degree of Bachelor of Science in Business
Administration, and was working, at the time of her husbands death, as a
Secretary to the Port Managers in Ormoc City. The couple had three (3)
children: John Marben, Earl Pierre and Marie Bianca.
366
2. Marivic and Ben had known each other since elementary school; they
were neighbors in Bilwang; they were classmates; and they were third
degree cousins. Both sets of parents were against their relationship, but
Ben was persistent and tried to stop other suitors from courting her. Their
closeness developed as he was her constant partner at fiestas.
3. After their marriage, they lived first in the home of Bens parents,
together with Bens brother, Alex, in Isabel, Leyte. In the first year of
marriage, Marivic and Ben lived happily. But apparently, soon thereafter,
the couple would quarrel often and their fights would become violent.
4. Bens brother, Alex, testified for the prosecution that he could not
remember when Ben and Marivic married. He said that when Ben and
Marivic quarreled, generally when Ben would come home drunk, Marivic
would inflict injuries on him. He said that in one incident in 1993 he saw
Marivic holding a kitchen knife after Ben had shouted for help as his left
hand was covered with blood. Marivic left the house but after a week, she
returned apparently having asked for Bens forgiveness. In another
incident in May 22, 1994, early morning, Alex and his father apparently
rushed to Bens aid again and saw blood from Bens forehead and Marivic
holding an empty bottle. Ben and Marivic reconciled after Marivic had
apparently again asked for Bens forgiveness.
Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that
Ben and Marivic married in 1986 or 1985 more or less here in Fatima,
Ormoc City. She said as the marriage went along, Marivic became
already very demanding. Mrs. Iluminada Genosa said that after the birth
of Marivics two sons, there were three (3) misunderstandings. The first
was when Marivic stabbed Ben with a table knife through his left arm;
the second incident was on November 15, 1994, when Marivic struck
Ben on the forehead using a sharp instrument until the eye was also
affected. It was wounded and also the ear and her husband went to Ben to
help; and the third incident was in 1995 when the couple had already
transferred to the house in Bilwang and she saw that Bens hand was
plastered as the bone cracked.
Both mother and son claimed they brought Ben to a Pasar clinic for
medical intervention.
 5. Arturo Basobas, a co-worker of Ben, testified that on November 15,
1995 After we collected our salary, we went to the cock-fighting place of
ISCO. They stayed there for three (3) hours, after which they went to
Uniloks and drank beer allegedly only two (2) bottles each. After
drinking they bought barbeque and went to the Genosa
residence. Marivic was not there. He stayed a while talking with Ben,
after which he went across the road to wait for the runner and the usher of
the masiao game because during that time, the hearing on masiao
numbers was rampant. I was waiting for the ushers and runners so that I
can place my bet. On his way home at about 9:00 in the evening, he heard
the Genosas arguing. They were quarreling loudly. Outside their house
was one Fredo who is used by Ben to feed his fighting cocks. Basobas
testimony on the root of the quarrel, conveniently overheard by him was
Marivic saying I will never hesitate to kill you, whilst Ben replied Why
kill me when I am innocent. Basobas thought they were joking.
He did not hear them quarreling while he was across the road from the
Genosa residence. Basobas admitted that he and Ben were always at the
cockpits every Saturday and Sunday. He claims that he once told Ben
before when he was stricken with a bottle by Marivic Genosa that he
should leave her and that Ben would always take her back after she
would leave him so many times.
Basobas could not remember when Marivic had hit Ben, but it was a long
time that they had been quarreling. He said Ben even had a wound on the
right forehead. He had known the couple for only one (1) year.
6. Marivic testified that after the first year of marriage, Ben became cruel
to her and was a habitual drinker. She said he provoked her, he would
slap her, sometimes he would pin her down on the bed, and sometimes
beat her.
These incidents happened several times and she would often run home to
her parents, but Ben would follow her and seek her out, promising to
change and would ask for her forgiveness. She said after she would be
beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero
and Dra. Cerillo. These doctors would enter the injuries inflicted upon
her by Ben into their reports. Marivic said Ben would beat her or quarrel
with her every time he was drunk, at least three times a week.
367
7. In her defense, witnesses who were not so closely related to Marivic,
testified as to the abuse and violence she received at the hands of Ben.
7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the
Genosas, testified that on November 15, 1995, he overheard a quarrel
between Ben and Marivic. Marivic was shouting for help and through the
open jalousies, he saw the spouses grappling with each other. Ben had
Marivic in a choke hold. He did not do anything, but had come
voluntarily to testify. (Please note this was the same night as that testified
to by Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe
Barrientos, testified that he heard his neighbor Marivic shouting on the
night of November 15, 1995. He peeped through the window of his hut
which is located beside the Genosa house and saw the spouses grappling
with each other then Ben Genosa was holding with his both hands the
neck of the accused, Marivic Genosa. He said after a while, Marivic was
able to extricate he[r]self and enter the room of the children. After that,
he went back to work as he was to go fishing that evening. He returned at
8:00 the next morning. (Again, please note that this was the same night
as that testified to by Arturo Basobas).
7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while
they were living in Isabel, Leyte. His house was located about fifty (50)
meters from theirs. Marivic is his niece and he knew them to be living
together for 13 or 14 years. He said the couple was always quarreling.
Marivic confided in him that Ben would pawn items and then would use
the money to gamble. One time, he went to their house and they were
quarreling. Ben was so angry, but would be pacified if somebody would
come. He testified that while Ben was alive he used to gamble and when
he became drunk, he would go to our house and he will say, Teody
because that was what he used to call me, mokimas ta, which means lets
go and look for a whore. Mr. Sarabia further testified that Ben would box
his wife and I would see bruises and one time she ran to me, I noticed a
wound (the witness pointed to his right breast) as according to her a knife
was stricken to her. Mr. Sarabia also said that once he saw Ben had been
injured too. He said he voluntarily testified only that morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic,
testified that in the afternoon of November 15, 1995, Marivic went to her
house and asked her help to look for Ben. They searched in the market
place, several taverns and some other places, but could not find him. She
accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house because she might be battered by her husband. When they
got to the Genosa house at about 7:00 in the evening, Miss Arano said
that her husband was already there and was drunk. Miss Arano knew he
was drunk because of his staggering walking and I can also detect his
face. Marivic entered the house and she heard them quarrel noisily.
(Again, please note that this is the same night as that testified to by
Arturo Basobas) Miss Arano testified that this was not the first time
Marivic had asked her to sleep in the house as Marivic would be afraid
every time her husband would come home drunk. At one time when she
did sleep over, she was awakened at 10:00 in the evening when Ben
arrived because the couple were very noisy in the sala and I had heard
something was broken like a vase. She said Marivic ran into her room
and they locked the door. When Ben couldnt get in he got a chair and a
knife and showed us the knife through the window grill and he scared us.
She said that Marivic shouted for help, but no one came. On cross-
examination, she said that when she left Marivics house on November 15,
1995, the couple were still quarreling.
7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-
employees at PHILPHOS, Isabel, Leyte. Marivic was his patient many
times and had also received treatment from other doctors. Dr. Caing
testified that from July 6, 1989 until November 9, 1995, there were six
(6) episodes of physical injuries inflicted upon Marivic. These injuries
were reported in his Out-Patient Chart at the PHILPHOS Hospital. The
prosecution admitted the qualifications of Dr. Caing and considered him
an expert witness.
xxxxxxxxx
Dr. Caings clinical history of the tension headache and hypertention of
Marivic on twenty-three (23) separate occasions was marked at Exhibits
2 and 2-B. The OPD Chart of Marivic at the Philphos Clinic which
reflected all the consultations made by Marivic and the six (6) incidents
of physical injuries reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is not a psychiatrist, he
could not say whether the injuries were directly related to the crime
368
committed. He said it is only a psychiatrist who is qualified to examine
the psychological make-up of the patient, whether she is capable of
committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place where the
Genosas resided, testified that about two (2) months before Ben died,
Marivic went to his office past 8:00 in the evening. She sought his help to
settle or confront the Genosa couple who were experiencing family
troubles. He told Marivic to return in the morning, but he did not hear
from her again and assumed that they might have settled with each other
or they might have forgiven with each other.
xxxxxxxxx
Marivic said she did not provoke her husband when she got home that
night it was her husband who began the provocation. Marivic said she
was frightened that her husband would hurt her and she wanted to make
sure she would deliver her baby safely. In fact, Marivic had to be
admitted later at the Rizal Medical Centre as she was suffering from
eclampsia and hypertension, and the baby was born prematurely on
December 1, 1995.
Marivic testified that during her marriage she had tried to leave her
husband at least five (5) times, but that Ben would always follow her and
they would reconcile. Marivic said that the reason why Ben was violent
and abusive towards her that night was because he was crazy about his
recent girlfriend, Lulu x x x Rubillos.
On cross-examination, Marivic insisted she shot Ben with a gun; she said
that he died in the bedroom; that their quarrels could be heard by anyone
passing their house; that Basobas lied in his testimony; that she left for
Manila the next day, November 16, 1995; that she did not bother anyone
in Manila, rented herself a room, and got herself a job as a field
researcher under the alias Marvelous Isidro; she did not tell anyone that
she was leaving Leyte, she just wanted to have a safe delivery of her
baby; and that she was arrested in San Pablo, Laguna.
Answering questions from the Court, Marivic said that she threw the gun
away; that she did not know what happened to the pipe she used to smash
him once; that she was wounded by Ben on her wrist with the bolo; and
that two (2) hours after she was whirled by Ben, he kicked her ass and
dragged her towards the drawer when he saw that she had packed his
things.
9. The body of Ben Genosa was found on November 18, 1995 after an
investigation was made of the foul odor emitting from the Genosa
residence. This fact was testified to by all the prosecution witnesses and
some defense witnesses during the trial.
10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health
Officer of Isabel, Leyte at the time of the incident, and among her
responsibilities as such was to take charge of all medico-legal cases, such
as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo
is not a forensic pathologist. She merely took the medical board exams
and passed in 1986. She was called by the police to go to the Genosa
residence and when she got there, she saw some police officer and
neighbor around. She saw Ben Genosa, covered by a blanket, lying in a
semi-prone position with his back to the door. He was wearing only a
brief.
xxxxxxxxx
Dra. Cerillo said that there is only one injury and that is the injury
involving the skeletal area of the head which she described as a fracture.
And that based on her examination, Ben had been dead 2 or 3 days. Dra.
Cerillo did not testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.
11. The Information, dated November 14, 1996, filed against Marivic
Genosa charged her with the crime of PARRICIDE committed with
intent to kill, with treachery and evidence premeditation, x x x wilfully,
unlawfully and feloniously attack, assault, hit and wound x x x her
legitimate husband, with the use of a hard deadly weapon x x x which
caused his death.
12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997,
17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December
1997, 22 May 1998, and 5 and 6 August 1998.
369
13. On 23 September 1998, or only fifty (50) days from the day of the
last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-
Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty
beyond reasonable doubt of the crime of parricide, and further found
treachery as an aggravating circumstance, thus sentencing her to the
ultimate penalty of DEATH.
14. The case was elevated to this Honorable Court upon automatic
review and, under date of 24 January 2000, Marivics trial lawyer, Atty.
Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel,
attaching thereto, as a precautionary measure, two (2) drafts of
Appellants Briefs he had prepared for Marivic which, for reasons of her
own, were not conformed to by her.
The Honorable Court allowed the withdrawal of Atty. Tabucanon and
permitted the entry of appearance of undersigned counsel.
15. Without the knowledge of counsel, Marivic Genosa wrote a letter
dated 20 January 2000, to the Chief Justice, coursing the same through
Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial
Records Office, wherein she submitted her Brief without counsels to the
Court.
This letter was stamp-received by the Honorable Court on 4 February
2000.
16. In the meantime, under date of 17 February 2000, and stamp-
received by the Honorable Court on 19 February 2000, undersigned
counsel filed an URGENT OMNIBUS MOTION praying that the
Honorable Court allow the exhumation of Ben Genosa and the re-
examination of the cause of his death; allow the examination of Marivic
Genosa by qualified psychologists and psychiatrists to determine her state
of mind at the time she killed her husband; and finally, to allow a partial
re-opening of the case a quo to take the testimony of said psychologists
and psychiatrists.
Attached to the URGENT OMNIBUS MOTION was a letter of Dr.
Raquel Fortun, then the only qualified forensic pathologist in the country,
who opined that the description of the death wound (as culled from the
post-mortem findings, Exhibit A) is more akin to a gunshot wound than a
beating with a lead pipe.
17. In a RESOLUTION dated 29 September 2000, the Honorable Court
partly granted Marivics URGENT OMNIBUS MOTION and remanded
the case to the trial court for the reception of expert psychological and/or
psychiatric opinion on the battered woman syndrome plea, within ninety
(90) days from notice, and, thereafter to forthwith report to this Court the
proceedings taken, together with the copies of the TSN and relevant
documentary evidence, if any, submitted.
18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified
before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
Immediately before Dra. Dayan was sworn, the Court a quo asked if she
had interviewed Marivic Genosa. Dra. Dayan informed the Court that
interviews were done at the Penal Institution in 1999, but that the clinical
interviews and psychological assessment were done at her clinic.
Dra. Dayan testified that she has been a clinical psychologist for twenty
(20) years with her own private clinic and connected presently to the De
La Salle University as a professor. Before this, she was the Head of the
Psychology Department of the Assumption College; a member of the
faculty of Psychology at the Ateneo de Manila University and St. Josephs
College; and was the counseling psychologist of the National Defense
College. She has an AB in Psychology from the University of the
Philippines, a Master of Arts in Clinical [Counseling], Psychology from
the Ateneo, and a PhD from the U.P. She was the past president of the
Psychological Association of the Philippines and is a member of the
American Psychological Association. She is the secretary of the
International Council of Psychologists from about 68 countries; a
member of the Forensic Psychology Association; and a member of the
ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-
demographic and psychological profile of families involved in domestic
violence and nullity cases. She was with the Davide Commission doing
research about Military Psychology. She has written a book entitled
Energy Global Psychology (together with Drs. Allan Tan and Allan
Bernardo). The Genosa case is the first time she has testified as an expert
on battered women as this is the first case of that nature.
370
Dra. Dayan testified that for the research she conducted, on the socio-
demographic and psychological profile of families involved in domestic
violence, and nullity cases, she looked at about 500 cases over a period of
ten (10) years and discovered that there are lots of variables that cause all
of this marital conflicts, from domestic violence to infidelity, to
psychiatric disorder.
Dra. Dayan described domestic violence to comprise of a lot of incidents
of psychological abuse, verbal abuse, and emotional abuse to physical
abuse and also sexual abuse.
xxxxxxxxx
Dra. Dayan testified that in her studies, the battered woman usually has a
very low opinion of herself. She has a self-defeating and self-sacrificing
characteristics. x x x they usually think very lowly of themselves and so
when the violence would happen, they usually think that they provoke it,
that they were the one who precipitated the violence, they provoke their
spouse to be physically, verbally and even sexually abusive to them. Dra.
Dayan said that usually a battered x x x comes from a dysfunctional
family or from broken homes.
Dra. Dayan said that the batterer, just like the battered woman, also has a
very low opinion of himself. But then emerges to have superiority
complex and it comes out as being very arrogant, very hostile, very
aggressive and very angry. They also had (sic) a very low tolerance for
frustrations. A lot of times they are involved in vices like gambling,
drinking and drugs. And they become violent. The batterer also usually
comes from a dysfunctional family which over-pampers them and makes
them feel entitled to do anything. Also, they see often how their parents
abused each other so there is a lot of modeling of aggression in the
family.
Dra. Dayan testified that there are a lot of reasons why a battered woman
does not leave her husband: poverty, self-blame and guilt that she
provoked the violence, the cycle itself which makes her hope her husband
will change, the belief in her obligations to keep the family intact at all
costs for the sake of the children.
xxxxxxxxx
Dra. Dayan said that abused wives react differently to the violence: some
leave the house, or lock themselves in another room, or sometimes try to
fight back triggering physical violence on both of them. She said that in a
normal marital relationship, abuses also happen, but these are not
consistent, not chronic, are not happening day in [and] day out. In an
abnormal marital relationship, the abuse occurs day in and day out, is
long lasting and even would cause hospitalization on the victim and even
death on the victim.
xxxxxxxxx
Dra. Dayan said that as a result of the battery of psychological tests she
administered, it was her opinion that Marivic fits the profile of a battered
woman because inspite of her feeling of self-confidence which we can
see at times there are really feeling (sic) of loss, such feelings of
humiliation which she sees herself as damaged and as a broken person.
And at the same time she still has the imprint of all the abuses that she
had experienced in the past.
xxxxxxxxx
Dra. Dayan said Marivic thought of herself as a loving wife and did not
even consider filing for nullity or legal separation inspite of the abuses. It
was at the time of the tragedy that Marivic then thought of herself as a
victim.
xxxxxxxxx
19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has
since passed away, appeared and testified before RTC-Branch 35, Ormoc
City.
Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a
Fellow of the Philippine Board of Psychiatry and a Fellow of the
Philippine Psychiatry Association. He was in the practice of psychiatry
for thirty-eight (38) years. Prior to being in private practice, he was
connected with the Veterans Memorial Medical Centre where he gained
his training on psychiatry and neurology. After that, he was called to
active duty in the Armed Forces of the Philippines, assigned to the V.
Luna Medical Center for twenty six (26) years. Prior to his retirement
371
from government service, he obtained the rank of Brigadier General. He
obtained his medical degree from the University of Santo Tomas. He was
also a member of the World Association of Military Surgeons; the
Quezon City Medical Society; the Cagayan Medical Society; and the
Philippine Association of Military Surgeons.
He authored The Comparative Analysis of Nervous Breakdown in the
Philippine Military Academy from the Period 1954 1978 which was
presented twice in international congresses. He also authored The Mental
Health of the Armed Forces of the Philippines 2000, which was likewise
published internationally and locally. He had a medical textbook
published on the use of Prasepam on a Parke-Davis grant; was the first to
use Enanthate (siquiline), on an E.R. Squibb grant; and he published the
use of the drug Zopiclom in 1985-86.
Dr. Pajarillo explained that psychiatry deals with the functional disorder
of the mind and neurology deals with the ailment of the brain and spinal
cord enlarged. Psychology, on the other hand, is a bachelor degree and a
doctorate degree; while one has to finish medicine to become a specialist
in psychiatry.
Even only in his 7th year as a resident in V. Luna Medical Centre, Dr.
Pajarillo had already encountered a suit involving violent family
relations, and testified in a case in 1964. In the Armed Forces of the
Philippines, violent family disputes abound, and he has seen probably ten
to twenty thousand cases. In those days, the primordial intention of
therapy was reconciliation. As a result of his experience with domestic
violence cases, he became a consultant of the Battered Woman Office in
Quezon City under Atty. Nenita Deproza.
As such consultant, he had seen around forty (40) cases of severe
domestic violence, where there is physical abuse: such as slapping,
pushing, verbal abuse, battering and boxing a woman even to an
unconscious state such that the woman is sometimes confined. The
affliction of Post-Traumatic Stress Disorder depends on the vulnerability
of the victim. Dr. Pajarillo said that if the victim is not very healthy,
perhaps one episode of violence may induce the disorder; if the
psychological stamina and physiologic constitutional stamina of the
victim is stronger, it will take more repetitive trauma to precipitate the
post-traumatic stress disorder and this x x x is very dangerous.
In psychiatry, the post-traumatic stress disorder is incorporated under the
anxiety neurosis or neurologic anxcietism. It is produced by
overwhelming brutality, trauma.
xxxxxxxxx
Dr. Pajarillo explained that with neurotic anxiety, the victim relives the
beating or trauma as if it were real, although she is not actually being
beaten at that time. She thinks of nothing but the suffering.
xxxxxxxxx
A woman who suffers battery has a tendency to become neurotic, her
emotional tone is unstable, and she is irritable and restless. She tends to
become hard-headed and persistent. She has higher sensitivity and her
self-world is damaged.
Dr. Pajarillo said that an abnormal family background relates to an
individuals illness, such as the deprivation of the continuous care and
love of the parents. As to the batterer, he normally internalizes what is
around him within the environment. And it becomes his own personality.
He is very competitive; he is aiming high all the time; he is so macho; he
shows his strong faade but in it there are doubts in himself and prone to
act without thinking.
xxxxxxxxx
Dr. Pajarillo emphasized that even though without the presence of the
precipator (sic) or the one who administered the battering, that re-
experiencing of the trauma occurred (sic) because the individual cannot
control it. It will just come up in her mind or in his mind.
xxxxxxxxx
Dr. Pajarillo said that a woman suffering post traumatic stress disorder try
to defend themselves, and primarily with knives. Usually pointed
weapons or any weapon that is available in the immediate surrounding or
in a hospital x x x because that abound in the household. He said a victim
resorts to weapons when she has reached the lowest rock bottom of her
life and there is no other recourse left on her but to act decisively.
372
xxxxxxxxx
Dr. Pajarillo testified that he met Marivic Genosa in his office in an
interview he conducted for two (2) hours and seventeen (17) minutes. He
used the psychological evaluation and social case studies as a help in
forming his diagnosis. He came out with a Psychiatric Report, dated 22
January 2001.
xxxxxxxxx
On cross-examination by the private prosecutor, Dr. Pajarillo said that at
the time she killed her husband Marivicc mental condition was that she
was re-experiencing the trauma. He said that we are trying to explain
scientifically that the re-experiencing of the trauma is not controlled by
Marivic. It will just come in flashes and probably at that point in time that
things happened when the re-experiencing of the trauma flashed in her
mind. At the time he interviewed Marivic she was more subdued, she was
not super alert anymore x x x she is mentally stress (sic) because of the
predicament she is involved.
xxxxxxxxx
20. No rebuttal evidence or testimony was presented by either the private
or the public prosecutor. Thus, in accord with the Resolution of this
Honorable Court, the records of the partially re-opened trial a quo were
elevated.[9]
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the
RTC gave credence to the prosecution evidence that appellant
had killed the deceased while he was in bed sleeping. Further, the
trial court appreciated the generic aggravating circumstance of
treachery, because Ben Genosa was supposedly defenseless
when he was killed -- lying in bed asleep when Marivic smashed
him with a pipe at the back of his head.
The capital penalty having been imposed, the case was
elevated to this Court for automatic review.
 Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus
Motion praying that this Court allow (1) the exhumation of Ben
Genosa and the reexamination of the cause of his death; (2) the
examination of appellant by qualified psychologists and
psychiatrists to determine her state of mind at the time she had
killed her spouse; and (3) the inclusion of the said experts reports
in the records of the case for purposes of the automatic review or,
in the alternative, a partial reopening of the case for the lower
court to admit the experts testimonies.
On September 29, 2000, this Court issued a Resolution
granting in part appellants Motion, remanding the case to the trial
court for the reception of expert psychological and/or psychiatric
opinion on the battered woman syndrome plea; and requiring the
lower court to report thereafter to this Court the proceedings taken
as well as to submit copies of the TSN and additional evidence, if
any.
Acting on the Courts Resolution, the trial judge authorized the
examination of Marivic by two clinical psychologists, Drs. Natividad
Dayan[10] and Alfredo Pajarillo,[11] supposedly experts on domestic
violence. Their testimonies, along with their documentary
evidence, were then presented to and admitted by the lower court
before finally being submitted to this Court to form part of the
records of the case.[12]
3. The trial court gravely erred finding the cause of death to be by
beating with a pipe.
4. The trial court gravely erred in ignoring and disregarding evidence
adduced from impartial and unbiased witnesses that Ben Genosa was a
drunk, a gambler, a womanizer and wife-beater; and further gravely erred
in concluding that Ben Genosa was a battered husband.
5. The trial court gravely erred in not requiring testimony from the
children of Marivic Genosa.
6. The trial court gravely erred in concluding that Marivics flight to
Manila and her subsequent apologies were indicia of guilt, instead of a
clear attempt to save the life of her unborn child.
7. The trial court gravely erred in concluding that there was an
aggravating circumstance of treachery.
8. The trial court gravely erred in refusing to re-evaluate the traditional
elements in determining the existence of self-defense and defense of
foetus in this case, thereby erroneously convicting Marivic Genosa of the
crime of parricide and condemning her to the ultimate penalty of death.[13]
In the main, the following are the essential legal issues: (1)
whether appellant acted in self-defense and in defense of her
fetus; and (2) whether treachery attended the killing of Ben
Genosa.

The Issues
The Courts Ruling

Appellant assigns the following alleged errors of the trial court

The appeal is partly meritorious.
for this Courts consideration:

1. The trial court gravely erred in promulgating an obviously hasty

decision without reflecting on the evidence adduced as to self-defense. Collateral Factual Issues

2. The trial court gravely erred in finding as a fact that Ben and Marivic The first six assigned errors raised by appellant are factual in
Genosa were legally married and that she was therefore liable for nature, if not collateral to the resolution of the principal issues. As
parricide. consistently held by this Court, the findings of the trial court on the
373
credibility of witnesses and their testimonies are entitled to a high
degree of respect and will not be disturbed on appeal in the
absence of any showing that the trial judge gravely abused his
discretion or overlooked, misunderstood or misapplied material
facts or circumstances of weight and substance that could affect
the outcome of the case.[14]
In appellants first six assigned items, we find no grave abuse
of discretion, reversible error or misappreciation of material facts
that would reverse or modify the trial courts disposition of the case.
In any event, we will now briefly dispose of these alleged errors of
the trial court.
First, we do not agree that the lower court promulgated an
obviously hasty decision without reflecting on the evidence
adduced as to self-defense. We note that in his 17-page Decision,
Judge Fortunito L. Madrona summarized the testimonies of both
the prosecution and the defense witnesses and -- on the basis of
those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse
assessing the testimony and the self-defense theory of the
accused. While she, or even this Court, may not agree with the
trial judges conclusions, we cannot peremptorily conclude, absent
substantial evidence, that he failed to reflect on the evidence
presented.
Neither do we find the appealed Decision to have been made
in an obviously hasty manner. The Information had been filed with
the lower court on November 14, 1996. Thereafter, trial began and
at least 13 hearings were held for over a year. It took the trial
judge about two months from the conclusion of trial to promulgate
his judgment. That he conducted the trial and resolved the case
with dispatch should not be taken against him, much less used to
condemn him for being unduly hasty. If at all, the dispatch with
which he handled the case should be lauded. In any case, we find
his actions in substantial compliance with his constitutional
obligation.[15]
Second, the lower court did not err in finding as a fact that Ben
Genosa and appellant had been legally married, despite the non-
presentation of their marriage contract. In People v.
Malabago,[16]this Court held:
374
The key element in parricide is the relationship of the offender with the
victim. In the case of parricide of a spouse, the best proof of the
relationship between the accused and the deceased is the marriage
certificate. In the absence of a marriage certificate, however, oral
evidence of the fact of marriage may be considered by the trial court if
such proof is not objected to.
Two of the prosecution witnesses -- namely, the mother and
the brother of appellants deceased spouse -- attested in court that
Ben had been married to Marivic.[17] The defense raised no
objection to these testimonies. Moreover, during her direct
examination, appellant herself made a judicial admission of her
marriage to Ben.[18] Axiomatic is the rule that a judicial admission
is conclusive upon the party making it, except only when there is a
showing that (1) the admission was made through a palpable
mistake, or (2) no admission was in fact made.[19] Other than
merely attacking the non-presentation of the marriage contract, the
defense offered no proof that the admission made by appellant in
court as to the fact of her marriage to the deceased was made
through a palpable mistake.
Third, under the circumstances of this case, the specific or
direct cause of Bens death -- whether by a gunshot or by beating
with a pipe -- has no legal consequence. As the Court elucidated
in its September 29, 2000 Resolution, [c]onsidering that the
appellant has admitted the fact of killing her husband and the acts
of hitting his nape with a metal pipe and of shooting him at the
back of his head, the Court believes that exhumation is
unnecessary, if not immaterial, to determine which of said acts
actually caused the victims death. Determining which of these
admitted acts caused the death is not dispositive of the guilt or
defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating
evidence that Ben was a drunk, gambler, womanizer and wife-beater.
Until this case came to us for automatic review, appellant had not
raised the novel defense of battered woman syndrome, for which
such evidence may have been relevant. Her theory of self-defense
was then the crucial issue before the trial court. As will be discussed
shortly, the legal requisites of self-defense under prevailing
jurisprudence ostensibly appear inconsistent with the surrounding
facts that led to the death of the victim. Hence, his personal
character, especially his past behavior, did not constitute vital
evidence at the time.
Fifth, the trial court surely committed no error in not requiring
testimony from appellants children. As correctly elucidated by the
solicitor general, all criminal actions are prosecuted under the
direction and control of the public prosecutor, in whom lies the
discretion to determine which witnesses and evidence are
necessary to present.[20] As the former further points out, neither
the trial court nor the prosecution prevented appellant from
presenting her children as witnesses. Thus, she cannot now fault
the lower court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of
whether the flight of Marivic to Manila and her subsequent
apologies to her brother-in-law are indicia of her guilt or are
attempts to save the life of her unborn child. Any reversible error
as to the trial courts appreciation of these circumstances has little
bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal
liability, invokes self-defense and/or defense of her unborn child.
When the accused admits killing the victim, it is incumbent upon
her to prove any claimed justifying circumstance by clear and
convincing evidence.[21] Well-settled is the rule that in criminal
cases, self-defense (and similarly, defense of a stranger or third
person) shifts the burden of proof from the prosecution to the
defense.[22]
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of
the battered woman syndrome. While new in Philippine
jurisprudence, the concept has been recognized in foreign
jurisdictions as a form of self-defense or, at the least, incomplete
self-defense.[23] By appreciating evidence that a victim or
375
defendant is afflicted with the syndrome, foreign courts convey
their understanding of the justifiably fearful state of mind of a
person who has been cyclically abused and controlled over a
period of time.[24]
A battered woman has been defined as a woman who is
repeatedly subjected to any forceful physical or psychological
behavior by a man in order to coerce her to do something he
wants her to do without concern for her rights. Battered women
include wives or women in any form of intimate relationship with
men. Furthermore, in order to be classified as a battered woman,
the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man
once. If it occurs a second time, and she remains in the situation,
she is defined as a battered woman.[25]
Battered women exhibit common personality traits, such as
low self-esteem, traditional beliefs about the home, the family and
the female sex role; emotional dependence upon the dominant
male; the tendency to accept responsibility for the batterers
actions; and false hopes that the relationship will improve.[26]
More graphically, the battered woman syndrome is
characterized by the so-called cycle of violence,[27] which has three
phases: (1) the tension-building phase; (2) the acute battering
incident; and (3) the tranquil, loving (or, at least, nonviolent)
phase.[28]
During the tension-building phase, minor battering occurs --
it could be verbal or slight physical abuse or another form of
hostile behavior. The woman usually tries to pacify the batterer
through a show of kind, nurturing behavior; or by simply staying
out of his way. What actually happens is that she allows herself to
be abused in ways that, to her, are comparatively minor. All she
wants is to prevent the escalation of the violence exhibited by the
batterer. This wish, however, proves to be double-edged, because
her placatory and passive behavior legitimizes his belief that he
has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort
to placate him are not usually successful, and the verbal and/or
physical abuse worsens. Each partner senses the imminent loss of
control and the growing tension and despair. Exhausted from the
persistent stress, the battered woman soon withdraws emotionally.
But the more she becomes emotionally unavailable, the more the
batterer becomes angry, oppressive and abusive. Often, at some
unpredictable point, the violence spirals out of control and leads to
an acute battering incident.[29]
The acute battering incident is said to be characterized by
brutality, destructiveness and, sometimes, death. The battered
woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put an
end to the violence. Its nature can be as unpredictable as the time
of its explosion, and so are his reasons for ending it. The battered
woman usually realizes that she cannot reason with him, and that
resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack
and the terrible pain, although she may later clearly remember
every detail. Her apparent passivity in the face of acute violence
may be rationalized thus: the batterer is almost always much
stronger physically, and she knows from her past painful
experience that it is futile to fight back. Acute battering incidents
are often very savage and out of control, such that innocent
bystanders or intervenors are likely to get hurt.[30]
The final phase of the cycle of violence begins when the acute
battering incident ends. During this tranquil period, the couple
experience profound relief. On the one hand, the batterer may
show a tender and nurturing behavior towards his partner. He
knows that he has been viciously cruel and tries to make up for it,
begging for her forgiveness and promising never to beat her again.
On the other hand, the battered woman also tries to convince
herself that the battery will never happen again; that her partner
will change for the better; and that this good, gentle and caring
man is the real person whom she loves.
A battered woman usually believes that she is the sole anchor
of the emotional stability of the batterer. Sensing his isolation and
despair, she feels responsible for his well-being. The truth, though,
is that the chances of his reforming, or seeking or receiving
professional help, are very slim, especially if she remains with him.
Generally, only after she leaves him does he seek professional
help as a way of getting her back. Yet, it is in this phase of
376
remorseful reconciliation that she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency is well-entrenched in
a battered womans psyche. In this phase, she and her batterer are
indeed emotionally dependent on each other -- she for his
nurturant behavior, he for her forgiveness. Underneath this
miserable cycle of tension, violence and forgiveness, each partner
may believe that it is better to die than to be separated. Neither
one may really feel independent, capable of functioning without the
other.[31]
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the
defense presented several witnesses. She herself described her
heart-rending experience as follows:
ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A In the first year, I lived with him happily but in the subsequent
year he was cruel to me and a behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your
husband was abusive to you and cruel. In what way was
this abusive and cruelty manifested to you?
A He always provoke me in everything, he always slap me and
sometimes he pinned me down on the bed and sometimes
beat me.
Q How many times did this happen?
A Several times already.
Q What did you do when these things happen to you?
A I went away to my mother and I ran to my father and we
separate each other.
Q What was the action of Ben Genosa towards you leaving
home?
A He is following me, after that he sought after me.
Q What will happen when he follow you?
A He said he changed, he asked for forgiveness and I was
convinced and after that I go to him and he said sorry.
Q During those times that you were the recipient of such cruelty
and abusive behavior by your husband, were you able to
see a doctor?
A Yes, sir.
A Not necessarily that he would beat me but sometimes he will
just quarrel me. [32]
Referring to his Out-Patient Chart[33] on Marivic Genosa at the
Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing
testimony on chronic battery in this manner:
Q So, do you have a summary of those six (6) incidents which
are found in the chart of your clinic?

Q Who are these doctors? A Yes, sir.

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Q Who prepared the list of six (6) incidents, Doctor?
Cerillo. A I did.

xxxxxxxxx Q Will you please read the physical findings together with the
dates for the record.
Q You said that you saw a doctor in relation to your injuries? A 1. May 12, 1990 - physical findings are as follows: Hematoma
(R) lower eyelid and redness of eye. Attending physician:
A Yes, sir.
Dr. Lucero;
Q Who inflicted these injuries?
2. March 10, 1992 - Contusion-Hematoma (L) lower arbital
A Of course my husband. area, pain and contusion (R) breast. Attending physician:
Dr. Canora;
Q You mean Ben Genosa?
3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;
A Yes, sir.
4. August 1, 1994 - Pain, mastitis (L) breast, 2 to trauma.
xxxxxxxxx Attending physician: Dr. Caing;
5. April 17, 1995 - Trauma, tenderness (R) Shoulder.
[Court] /to the witness Attending physician: Dr. Canora; and
Q How frequent was the alleged cruelty that you said? 6. June 5, 1995 - Swelling Abrasion (L) leg, multiple
A Everytime he got drunk. contusion Pregnancy. Attending physician: Dr. Canora.

Q No, from the time that you said the cruelty or the infliction of
injury inflicted on your occurred, after your marriage, from
that time on, how frequent was the occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how many times in a month or
in a week?
A Three times a week.
Q Do you mean three times a week he would beat you?
Q Among the findings, there were two (2) incidents wherein you
were the attending physician, is that correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.
Q Now, going to your finding no. 3 where you were the one who
attended the patient. What do you mean by abrasion
furuncle left axilla?

377
A Abrasion is a skin wound usually when it comes in contact Q On November 6, 1995, will you please tell this Honorable
with something rough substance if force is applied. Court, was the patient pregnant?
Q What is meant by furuncle axilla? A Yes, sir.
A It is secondary of the light infection over the abrasion. Q Being a doctor, can you more engage at what stage of
pregnancy was she?
Q What is meant by pain mastitis secondary to trauma?
A Eight (8) months pregnant.
A So, in this 4th episode of physical injuries there is an
inflammation of left breast. So, [pain] meaning there is Q So in other words, it was an advance stage of pregnancy?
tenderness. When your breast is traumatized, there is
tenderness pain. A Yes, sir.

Q So, these are objective physical injuries. Doctor? Q What was your November 6, 1995 examination, was it an
examination about her pregnancy or for some other
findings?
xxxxxxxxx
A No, she was admitted for hypertension headache which
Q Were you able to talk with the patient? complicates her pregnancy.
A Yes, sir. Q When you said admitted, meaning she was confined?
Q What did she tell you? A Yes, sir.
A As a doctor-patient relationship, we need to know the cause Q For how many days?
of these injuries. And she told me that it was done to her by A One day.
her husband.
Q Where?
Q You mean, Ben Genosa?
A At PHILPHOS Hospital.
A Yes, sir.
xxxxxxxxx
xxxxxxxxx
Q Lets go back to the clinical history of Marivic Genosa. You
ATTY. TABUCANON: said that you were able to examine her personally on
Q By the way Doctor, were you able to physical examine the November 6, 1995 and she was 8 months pregnant.
accused sometime in the month of November, 1995 when What is this all about?
this incident happened?
A Because she has this problem of tension headache
A As per record, yes. secondary to hypertension and I think I have a record here,
Q What was the date? also the same period from 1989 to 1995, she had a
consultation for twenty-three (23) times.
A It was on November 6, 1995.
Q For what?
Q So, did you actually see the accused physically?
A Tension headache.
A Yes, sir.
Q Can we say that specially during the latter consultation, that
the patient had hypertension?
378
 A The patient definitely had hypertension. It was refractory to
our treatment. She does not response when the medication
was given to her, because tension headache is more or
less stress related and emotional in nature.
Q What did you deduce of tension headache when you said is
emotional in nature?
A From what I deduced as part of our physical examination of
the patient is the family history in line of giving the root
cause of what is causing this disease. So, from the moment
you ask to the patient all comes from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure,
Doctor?
A Yes, if it is emotionally related and stressful it can cause
increases in hypertension which is unfortunately does not
response to the medication.
Q In November 6, 1995, the date of the incident, did you take
the blood pressure of the accused?
A On November 6, 1995 consultation, the blood pressure was
180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months pregnant, you mean this
is dangerous level of blood pressure?
A It was dangerous to the child or to the fetus. [34]
Another defense witness, Teodoro Sarabia, a former neighbor
of the Genosas in Isabel, Leyte, testified that he had seen the
couple quarreling several times; and that on some occasions
Marivic would run to him with bruises, confiding that the injuries
were inflicted upon her by Ben.[35]
Ecel Arano also testified[36] that for a number of times she had
been asked by Marivic to sleep at the Genosa house, because the
latter feared that Ben would come home drunk and hurt her. On
one occasion that Ecel did sleep over, she was awakened about
379
ten oclock at night, because the couple were very noisy and I
heard something was broken like a vase. Then Marivic came
running into Ecels room and locked the door. Ben showed up by
the window grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked
her help -- this time to find Ben -- but they were unable to. They
returned to the Genosa home, where they found him already
drunk. Again afraid that he might hurt her, Marivic asked her to
sleep at their house. Seeing his state of drunkenness, Ecel
hesitated; and when she heard the couple start arguing, she
decided to leave.
On that same night that culminated in the death of Ben
Genosa, at least three other witnesses saw or heard the couple
quarreling.[37] Marivic relates in detail the following backdrop of the
fateful night when life was snuffed out of him, showing in the
process a vivid picture of his cruelty towards her:
ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November
15, 1995 in the evening?
A Whole morning and in the afternoon, I was in the office
working then after office hours, I boarded the service bus
and went to Bilwang. When I reached Bilwang, I
immediately asked my son, where was his father, then my
second child said, he was not home yet. I was worried
because that was payday, I was anticipating that he was
gambling. So while waiting for him, my eldest son arrived
from school, I prepared dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for
him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this
time?
A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back in your residence at
Bilwang?
A I went back around almost 8:00 oclock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested
to sleep with me at that time because I had fears that he
was again drunk and I was worried that he would again
beat me so I requested my cousin to sleep with me, but she
resisted because she had fears that the same thing will
happen again last year.
Q Who was this cousin of yours who you requested to sleep
with you?
A Ecel Arao, the one who testified.
Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father would
not allow her because of Ben.
Q During this period November 15, 1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q Whats the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?
A Yes, sir.
380
Q What time?
A When I arrived home, he was there already in his usual
behavior.
Q Will you tell this Court what was his disposition?
A He was drunk again, he was yelling in his usual unruly
behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was drunk and yelling at
you? What else did he do if any?
A He is nagging at me for following him and he dared me to
quarrel him.
Q What was the cause of his nagging or quarreling at you if you
know?
A He was angry at me because I was following x x x him,
looking for him. I was just worried he might be overly drunk
and he would beat me again.
Q You said that he was yelling at you, what else, did he do to
you if any?
A He was nagging at me at that time and I just ignore him
because I want to avoid trouble for fear that he will beat me
again. Perhaps he was disappointed because I just ignore
him of his provocation and he switch off the light and I said
to him, why did you switch off the light when the children
were there. At that time I was also attending to my children
who were doing their assignments. He was angry with me
for not answering his challenge, so he went to the kitchen
and [got] a bolo and cut the antenna wire to stop me from
watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from watching T.V.
Q What else happened after he cut the wire?
A He switch off the light and the children were shouting
because they were scared and he was already holding the
bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else happened as
Ben was carrying that bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack you?
A When I attempt to run he held my hands and he whirled me
and I fell to the bedside.
Q So when he whirled you, what happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on the
bedside?
A Yes, sir.
Q You screamed for help and he left, do you know where he
was going?
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and
then he kept on shouting at me that you might as well be
killed so there will be nobody to nag me.
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?

A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
Q During this time, where were your children, what were their
reactions?
A After a couple of hours, he went back again and he got angry
with me for packing his clothes, then he dragged me again
of the bedroom holding my neck.
A He dragged me towards the drawer and he was about to
open the drawer but he could not open it because he did
not have the key then he pulled his wallet which contained
a blade about 3 inches long and I was aware that he was
going to kill me and I smashed his arm and then the wallet
and the blade fell. The one he used to open the drawer I
saw, it was a pipe about that long, and when he was about
to pick-up the wallet and the blade, I smashed him then I
ran to the other room, and on that very moment everything
on my mind was to pity on myself, then the feeling I had on
that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER:

Q You said that when Ben came back to your house, he (The witness at this juncture is crying intensely).
dragged you? How did he drag you?
xxxxxxxxx
COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand ATTY. TABUCANON:
flexed forcibly in her front neck)
381
 Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade, for the record will you
please describe this blade about 3 inches long, how does it
look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me. [38]
In addition, Dra. Natividad Dayan was called by the RTC to
testify as an expert witness to assist it in understanding the psyche
of a battered person. She had met with Marivic Genosa for five
sessions totaling about seventeen hours. Based on their talks, the
former briefly related the latters ordeal to the court a quo as
follows:
Q: What can you say, that you found Marivic as a battered wife?
Could you in laymans term describe to this Court what her
life was like as said to you?
A: What I remember happened then was it was more than ten
years, that she was suffering emotional anguish. There
were a lot of instances of abuses, to emotional abuse, to
382
verbal abuse and to physical abuse. The husband had a
very meager income, she was the one who was practically
the bread earner of the family. The husband was involved
in a lot of vices, going out with barkadas, drinking, even
womanizing being involved in cockfight and going home
very angry and which will trigger a lot of physical abuse.
She also had the experience a lot of taunting from the
husband for the reason that the husband even accused her
of infidelity, the husband was saying that the child she was
carrying was not his own. So she was very angry, she was
at the same time very depressed because she was also
aware, almost like living in purgatory or even hell when it
was happening day in and day out. [39]
In cross-examining Dra. Dayan, the public prosecutor not
merely elicited, but wittingly or unwittingly put forward, additional
supporting evidence as shown below:
Q In your first encounter with the appellant in this case in 1999,
where you talked to her about three hours, what was the
most relevant information did you gather?
A The most relevant information was the tragedy that
happened. The most important information were escalating
abuses that she had experienced during her marital life.
Q Before you met her in 1999 for three hours, we presume that
you already knew of the facts of the case or at least you
have substantial knowledge of the facts of the case?
A I believe I had an idea of the case, but I do not know whether
I can consider them as substantial.
xxxxxxxxx
Q Did you gather an information from Marivic that on the side of
her husband they were fond of battering their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who are the relatives of
her husband that were fond of battering their wives?
 A What I remember that there were brothers of her husband
who are also battering their wives.
Q Did she not inform you that there was an instance that she
stayed in a hotel in Ormoc where her husband followed her
and battered [her] several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered
in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about
being battered, it really happened.
Q Being an expert witness, our jurisprudence is not complete on
saying this matter. I think that is the first time that we have
this in the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind
happened, it was really a self-defense. I also believe that
there had been provocation and I also believe that she
became a disordered person. She had to suffer anxiety
reaction because of all the battering that happened and so
she became an abnormal person who had lost shes not
during the time and that is why it happened because of all
the physical battering, emotional battering, all the
psychological abuses that she had experienced from her
husband.
Q I do believe that she is a battered wife. Was she extremely
battered?
A Sir, it is an extreme form of battering. Yes.[40]
Parenthetically, the credibility of appellant was demonstrated
as follows:
Q And you also said that you administered [the] objective
personality test, what x x x [is this] all about?
A The objective personality test is the Millon Clinical Multiaxial
Inventory. The purpose of that test is to find out about the
lying prone[ne]ss of the person.
Q What do you mean by that?
383
A Meaning, am I dealing with a client who is telling me the truth,
or is she someone who can exaggerate or x x x [will] tell a
lie[?]
Q And what did you discover on the basis of this objective
personality test?
A She was a person who passed the honesty test. Meaning she
is a person that I can trust. That the data that Im gathering
from her are the truth.[41]
The other expert witness presented by the defense, Dr.
Alfredo Pajarillo, testified on his Psychiatric Report,[42] which was
based on his interview and examination of Marivic Genosa. The
Report said that during the first three years of her marriage to Ben,
everything looked good -- the atmosphere was fine, normal and
happy -- until Ben started to be attracted to other girls and was
also enticed in[to] gambling[,] especially cockfighting. x x x. At the
same time Ben was often joining his barkada in drinking sprees.
The drinking sprees of Ben greatly changed the attitude he
showed toward his family, particularly to his wife. The Report
continued: At first, it was verbal and emotional abuses but as time
passed, he became physically abusive. Marivic claimed that the
viciousness of her husband was progressive every time he got
drunk. It was a painful ordeal Marivic had to anticipate whenever
she suspected that her husband went for a drinking [spree]. They
had been married for twelve years[;] and practically more than
eight years, she was battered and maltreated relentlessly and
mercilessly by her husband whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts
were in vain. Further quoting from the Report, [s]he also sought
the advice and help of close relatives and well-meaning friends in
spite of her feeling ashamed of what was happening to her. But
incessant battering became more and more frequent and more
severe. x x x.[43]
From the totality of evidence presented, there is indeed no
doubt in the Courts mind that Appellant Marivic Genosa was a
severely abused person.
Effect of Battery on Appellant
 Because of the recurring cycles of violence experienced by the
abused woman, her state of mind metamorphoses. In determining
her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events
immediately surrounding the incident. A Canadian court has aptly
pointed out that expert evidence on the psychological effect of
battering on wives and common law partners are both relevant and
necessary. How can the mental state of the appellant be
appreciated without it? The average member of the public may
ask: Why would a woman put up with this kind of treatment? Why
should she continue to live with such a man? How could she love
a partner who beat her to the point of requiring hospitalization? We
would expect the woman to pack her bags and go. Where is her
self-respect? Why does she not cut loose and make a new life for
herself? Such is the reaction of the average person confronted
with the so-called battered wife syndrome.[44]
To understand the syndrome properly, however, ones
viewpoint should not be drawn from that of an ordinary, reasonable
person. What goes on in the mind of a person who has been
subjected to repeated, severe beatings may not be consistent with
-- nay, comprehensible to -- those who have not been through a
similar experience. Expert opinion is essential to clarify and refute
common myths and misconceptions about battered women.[45]
The theory of BWS formulated by Lenore Walker, as well as
her research on domestic violence, has had a significant impact in
the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with
the killing of her violent partner. The psychologist explains that the
cyclical nature of the violence inflicted upon the battered woman
immobilizes the latters ability to act decisively in her own interests,
making her feel trapped in the relationship with no means of
escape.[46] In her years of research, Dr. Walker found that the
abuse often escalates at the point of separation and battered
women are in greater danger of dying then.[47]
Corroborating these research findings, Dra. Dayan said that
the battered woman usually has a very low opinion of herself. She
has x x x self-defeating and self-sacrificing characteristics. x x x
[W]hen the violence would happen, they usually think that they
provoke[d] it, that they were the one[s] who precipitated the
384
violence[; that] they provoke[d] their spouse to be physically,
verbally and even sexually abusive to them.[48]
According to Dra. Dayan, there are a lot of reasons why a
battered woman does not readily leave an abusive partner --
poverty, self-blame and guilt arising from the latters belief that she
provoked the violence, that she has an obligation to keep the
family intact at all cost for the sake of their children, and that she is
the only hope for her spouse to change.[49]
The testimony of another expert witness, Dr. Pajarillo, is also
helpful. He had previously testified in suits involving violent family
relations, having evaluated probably ten to twenty thousand violent
family disputes within the Armed Forces of the Philippines,
wherein such cases abounded. As a result of his experience with
domestic violence cases, he became a consultant of the Battered
Woman Office in Quezon City. As such, he got involved in about
forty (40) cases of severe domestic violence, in which the physical
abuse on the woman would sometimes even lead to her loss of
consciousness.[50]
Dr. Pajarillo explained that overwhelming brutality, trauma
could result in posttraumatic stress disorder, a form of anxiety
neurosis or neurologic anxietism.[51] After being repeatedly and
severely abused, battered persons may believe that they are
essentially helpless, lacking power to change their situation. x x x
[A]cute battering incidents can have the effect of stimulating the
development of coping responses to the trauma at the expense of
the victims ability to muster an active response to try to escape
further trauma. Furthermore, x x x the victim ceases to believe that
anything she can do will have a predictable positive effect.[52]
A study[53] conducted by Martin Seligman, a psychologist at
the University of Pennsylvania, found that even if a person has
control over a situation, but believes that she does not, she will be
more likely to respond to that situation with coping responses
rather than trying to escape. He said that it was the cognitive
aspect -- the individuals thoughts -- that proved all-important. He
referred to this phenomenon as learned helplessness. [T]he truth
or facts of a situation turn out to be less important than the
individuals set of beliefs or perceptions concerning the situation.
Battered women dont attempt to leave the battering situation, even
when it may seem to outsiders that escape is possible, because
they cannot predict their own safety; they believe that nothing they
or anyone else does will alter their terrible circumstances.[54]
Thus, just as the battered woman believes that she is
somehow responsible for the violent behavior of her partner, she
also believes that he is capable of killing her, and that there is no
escape.[55] Battered women feel unsafe, suffer from pervasive
anxiety, and usually fail to leave the relationship. [56] Unless a
shelter is available, she stays with her husband, not only because
she typically lacks a means of self-support, but also because she
fears that if she leaves she would be found and hurt even more. [57]
In the instant case, we meticulously scoured the records for
specific evidence establishing that appellant, due to the repeated
abuse she had suffered from her spouse over a long period of
time, became afflicted with the battered woman syndrome. We,
however, failed to find sufficient evidence that would support such
a conclusion. More specifically, we failed to find ample evidence
that would confirm the presence of the essential characteristics of
BWS.
The defense fell short of proving all three phases of the cycle
of violence supposedly characterizing the relationship of Ben and
Marivic Genosa. No doubt there were acute battering incidents. In
relating to the court a quo how the fatal incident that led to the
death of Ben started, Marivic perfectly described the tension-
building phase of the cycle. She was able to explain in adequate
detail the typical characteristics of this stage. However, that single
incident does not prove the existence of the syndrome. In other
words, she failed to prove that in at least another battering episode
in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or
build up prior to acute battering? How did Marivic normally
respond to Bens relatively minor abuses? What means did she
employ to try to prevent the situation from developing into the next
(more violent) stage?
Neither did appellant proffer sufficient evidence in regard to
the third phase of the cycle. She simply mentioned that she would
usually run away to her mothers or fathers house; [58] that Ben
would seek her out, ask for her forgiveness and promise to
385
change; and that believing his words, she would return to their
common abode.
Did she ever feel that she provoked the violent incidents
between her and her spouse? Did she believe that she was the
only hope for Ben to reform? And that she was the sole support of
his emotional stability and well-being? Conversely, how dependent
was she on him? Did she feel helpless and trapped in their
relationship? Did both of them regard death as preferable to
separation?
In sum, the defense failed to elicit from appellant herself her
factual experiences and thoughts that would clearly and fully
demonstrate the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert
witnesses for the defense. Indeed, they were able to explain fully,
albeit merely theoretically and scientifically, how the personality of
the battered woman usually evolved or deteriorated as a result of
repeated and severe beatings inflicted upon her by her partner or
spouse. They corroborated each others testimonies, which were
culled from their numerous studies of hundreds of actual
cases. However, they failed to present in court the factual
experiences and thoughts that appellant had related to them -- if at
all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a
modifying circumstance must be proven in order to be appreciated.
To repeat, the records lack supporting evidence that would
establish all the essentials of the battered woman syndrome as
manifested specifically in the case of the Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship
does not in itself establish the legal right of the woman to kill her
abusive partner. Evidence must still be considered in the context
of self-defense.[59]
From the expert opinions discussed earlier, the Court reckons
further that crucial to the BWS defense is the state of mind of the
battered woman at the time of the offense[60] -- she must have
actually feared imminent harm from her batterer and honestly
believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one
who resorts to self-defense must face a real threat on ones life;
and the peril sought to be avoided must be imminent and actual,
not merely imaginary.[61] Thus, the Revised Penal Code provides
the following requisites and effect of self-defense:[62]
Art. 11. Justifying circumstances. -- The following do not incur any
criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent
or repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
Unlawful aggression is the most essential element of self-
defense.[63] It presupposes actual, sudden and unexpected attack -
- or an imminent danger thereof -- on the life or safety of a
person.[64] In the present case, however, according to the
testimony of Marivic herself, there was a sufficient time interval
between the unlawful aggression of Ben and her fatal attack upon
him. She had already been able to withdraw from his violent
behavior and escape to their childrens bedroom. During that time,
he apparently ceased his attack and went to bed. The reality or
even the imminence of the danger he posed had ended altogether.
He was no longer in a position that presented an actual threat on
her life or safety.
Had Ben still been awaiting Marivic when she came out of their
childrens bedroom -- and based on past violent incidents, there
was a great probability that he would still have pursued her and
inflicted graver harm -- then, the imminence of the real threat upon
her life would not have ceased yet. Where the brutalized person is
already suffering from BWS, further evidence of actual physical
386
assault at the time of the killing is not required. Incidents of
domestic battery usually have a predictable pattern. To require the
battered person to await an obvious, deadly attack before she can
defend her life would amount to sentencing her to murder by
installment.[65] Still, impending danger (based on the conduct of the
victim in previous battering episodes) prior to the defendants use
of deadly force must be shown. Threatening behavior or
communication can satisfy the required imminence of
danger.[66] Considering such circumstances and the existence of
BWS, self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous,
does not warrant self-defense.[67] In the absence of such
aggression, there can be no self-defense -- complete or
incomplete -- on the part of the victim.[68] Thus, Marivics killing of
Ben was not completely justified under the circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she did not
raise any other modifying circumstances that would alter her
penalty, we deem it proper to evaluate and appreciate in her favor
circumstances that mitigate her criminal liability. It is a hornbook
doctrine that an appeal in a criminal case opens it wholly for
review on any issue, including that which has not been raised by
the parties.[69]
From several psychological tests she had administered to
Marivic, Dra. Dayan, in her Psychological Evaluation Report dated
November 29, 2000, opined as follows:
This is a classic case of a Battered Woman Syndrome. The repeated
battering Marivic experienced with her husband constitutes a form of
[cumulative] provocation which broke down her psychological resistance
and natural self-control. It is very clear that she developed heightened
sensitivity to sight of impending danger her husband posed continuously.
Marivic truly experienced at the hands of her abuser husband a state of
psychological paralysis which can only be ended by an act of violence on
her part. [70]
 Dr. Pajarillo corroborates the findings of Dra. Dayan. He
explained that the effect of repetitious pain taking, repetitious
battering, [and] repetitious maltreatment as well as the severity
and the prolonged administration of the battering is posttraumatic
stress disorder.[71] Expounding thereon, he said:
Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious battering.
Second, the severity of the battering. Third, the prolonged
administration of battering or the prolonged commission of
the battering and the psychological and constitutional
stamina of the victim and another one is the public and
social support available to the victim. If nobody is
interceding, the more she will go to that disorder....
xxxxxxxxx
Q You referred a while ago to severity. What are the
qualifications in terms of severity of the postraumatic stress
disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er this
post[t]raumatic stress disorder is injury to the head,
banging of the head like that. It is usually the very very
severe stimulus that precipitate this post[t]raumatic stress
disorder. Others are suffocating the victim like holding a
pillow on the face, strangulating the individual, suffocating
the individual, and boxing the individual. In this situation
therefore, the victim is heightened to painful stimulus, like
for example she is pregnant, she is very susceptible
because the woman will not only protect herself, she is also
to protect the fetus. So the anxiety is heightened to the end
[sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness, how
do you classify?
A We classify the disorder as [acute], or chronic or delayed or
[a]typical.
Q Can you please describe this pre[-]classification you called
delayed or [atypical]?
A The acute is the one that usually require only one battering
and the individual will manifest now a severe emotional
387
instability, higher irritability remorse, restlessness, and fear
and probably in most [acute] cases the first thing will be
happened to the individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious
maltreatment, any prolonged, it is longer than six (6)
months. The [acute] is only the first day to six (6) months.
After this six (6) months you become chronic. It is stated in
the book specifically that after six (6) months is chronic.
The [a]typical one is the repetitious battering but the
individual who is abnormal and then become normal. This
is how you get neurosis from neurotic personality of these
cases of post[t]raumatic stress disorder. [72]
Answering the questions propounded by the trial judge, the
expert witness clarified further:
Q But just the same[,] neurosis especially on battered woman
syndrome x x x affects x x x his or her mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated.[73]
In sum, the cyclical nature and the severity of the violence
inflicted upon appellant resulted in cumulative provocation which
broke down her psychological resistance and natural self-control,
psychological paralysis, and difficulty in concentrating or
impairment of memory.
Based on the explanations of the expert witnesses, such
manifestations were analogous to an illness that diminished the
exercise by appellant of her will power without, however, depriving
her of consciousness of her acts. There was, thus, a resulting
diminution of her freedom of action, intelligence or intent. Pursuant
to paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal
Code, this circumstance should be taken in her favor and
considered as a mitigating factor. [76]
In addition, we also find in favor of appellant the extenuating
circumstance of having acted upon an impulse so powerful as to
have naturally produced passion and obfuscation. It has been held
that this state of mind is present when a crime is committed as a
result of an uncontrollable burst of passion provoked by prior
unjust or improper acts or by a legitimate stimulus so powerful as
to overcome reason.[77] To appreciate this circumstance, the
following requisites should concur: (1) there is an act, both
unlawful and sufficient to produce such a condition of mind; and
(2) this act is not far removed from the commission of the crime by
a considerable length of time, during which the accused might
recover her normal equanimity.[78]
Here, an acute battering incident, wherein Ben Genosa was
the unlawful aggressor, preceded his being killed by Marivic. He
had further threatened to kill her while dragging her by the neck
towards a cabinet in which he had kept a gun. It should also be
recalled that she was eight months pregnant at the time. The
attempt on her life was likewise on that of her fetus.[79] His abusive
and violent acts, an aggression which was directed at the lives of
both Marivic and her unborn child, naturally produced passion and
obfuscation overcoming her reason. Even though she was able to
retreat to a separate room, her emotional and mental state
continued. According to her, she felt her blood pressure rise; she
was filled with feelings of self-pity and of fear that she and her
baby were about to die. In a fit of indignation, she pried open the
cabinet drawer where Ben kept a gun, then she took the weapon
and used it to shoot him.
The confluence of these events brings us to the conclusion
that there was no considerable period of time within which Marivic
could have recovered her normal equanimity. Helpful is Dr.
Pajarillos testimony[80] that with neurotic anxiety -- a psychological
effect on a victim of overwhelming brutality [or] trauma -- the victim
relives the beating or trauma as if it were real, although she is not
actually being beaten at the time. She cannot control re-
experiencing the whole thing, the most vicious and the trauma that
she suffered. She thinks of nothing but the suffering. Such reliving
which is beyond the control of a person under similar
circumstances, must have been what Marivic experienced during
the brief time interval and prevented her from recovering her
normal equanimity. Accordingly, she should further be credited
with the mitigating circumstance of passion and obfuscation.
388
It should be clarified that these two circumstances --
psychological paralysis as well as passion and obfuscation -- did
not arise from the same set of facts.
On the one hand, the first circumstance arose from the cyclical
nature and the severity of the battery inflicted by the batterer-
spouse upon appellant. That is, the repeated beatings over a
period of time resulted in her psychological paralysis, which was
analogous to an illness diminishing the exercise of her will power
without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from
the violent aggression he had inflicted on her prior to the killing.
That the incident occurred when she was eight months pregnant
with their child was deemed by her as an attempt not only on her
life, but likewise on that of their unborn child. Such perception
naturally produced passion and obfuscation on her part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes
against persons by employing means, methods or forms in the
execution thereof without risk to oneself arising from the defense
that the offended party might make.[81] In order to qualify an act as
treacherous, the circumstances invoked must be proven as
indubitably as the killing itself; they cannot be deduced from mere
inferences, or conjectures, which have no place in the appreciation
of evidence.[82] Because of the gravity of the resulting offense,
treachery must be proved as conclusively as the killing itself.[83]
Ruling that treachery was present in the instant case, the trial
court imposed the penalty of death upon appellant. It inferred this
qualifying circumstances merely from the fact that the lifeless body
of Ben had been found lying in bed with an open, depressed,
circular fracture located at the back of his head. As to exactly how
and when he had been fatally attacked, however, the prosecution
failed to establish indubitably. Only the following testimony of
appellant leads us to the events surrounding his death:
Q You said that when Ben came back to your house, he
dragged you? How did he drag you?
COURT: xxxxxxxxx
The witness demonstrated to the Court by using her right hand
flexed forcibly in her front neck) Q You said that he dropped the blade, for the record will you
please describe this blade about 3 inches long, how does it
A And he dragged me towards the door backward. look like?
ATTY. TABUCANON: A Three (3) inches long and inch wide.
Q Where did he bring you? Q It is a flexible blade?
A Outside the bedroom and he wanted to get something and A Its a cutter.
then he kept on shouting at me that you might as well be
killed so there will be nobody to nag me Q How do you describe the blade, is it sharp both edges?

Q So you said that he dragged you towards the drawer? A Yes, because he once used it to me.

A Yes, sir. Q How did he do it?

Q What is there in the drawer? A He wanted to cut my throat.

A I was aware that it was a gun. Q With the same blade?

COURT INTERPRETER A Yes, sir, that was the object used when he intimidate me.

(At this juncture the witness started crying) xxxxxxxxx

ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to
open the drawer but he could not open it because he did
not have the key then he pulled his wallet which contained
a blade about 3 inches long and I was aware that he was
going to kill me and I smashed his arm and then the wallet
and the blade fell. The one he used to open the drawer I
saw, it was a pipe about that long, and when he was about
to pick-up the wallet and the blade, I smashed him then I
ran to the other room, and on that very moment everything
on my mind was to pity on myself, then the feeling I had on
that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying intensely).
ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the blade, I pick-up the
pipe and I smashed him and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt the same thing like what
happened before when I was admitted in PHILPHOS Clinic,
I was about to vomit. I know my blood pressure was raised.
I was frightened I was about to die because of my blood
pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed
him, the witness at the same time pointed at the back of her
neck or the nape).

389
 ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that Ive been through
with him, I took pity on myself and I felt I was about to die
also because of my blood pressure and the baby, so I got
that gun and I shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer.[84]
The above testimony is insufficient to establish the presence of
treachery. There is no showing of the victims position relative to
appellants at the time of the shooting. Besides, equally axiomatic
is the rule that when a killing is preceded by an argument or a
quarrel, treachery cannot be appreciated as a qualifying
circumstance, because the deceased may be said to have been
forewarned and to have anticipated aggression from the
assailant.[85]
Moreover, in order to appreciate alevosia, the method of
assault adopted by the aggressor must have been consciously and
deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by
the party attacked.[86] There is no showing, though, that the
present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself from
any retaliatory act that he might make. To the contrary, it appears
that the thought of using the gun occurred to her only at about the
same moment when she decided to kill her batterer-spouse. In the
absence of any convincing proof that she consciously and
deliberately employed the method by which she committed the
crime in order to ensure its execution, this Court resolves the
doubt in her favor.[87]
Proper Penalty
390
The penalty for parricide imposed by Article 246 of the
Revised Penal Code is reclusion perpetua to death. Since two
mitigating circumstances and no aggravating circumstance have
been found to have attended the commission of the offense, the
penalty shall be lowered by one (1) degree, pursuant to Article 64
of paragraph 5[88] of the same Code.[89] The penalty of reclusion
temporal in its medium period is imposable, considering that two
mitigating circumstances are to be taken into account in reducing
the penalty by one degree, and no other modifying circumstances
were shown to have attended the commission of the
offense.[90] Under the Indeterminate Sentence Law, the minimum of
the penalty shall be within the range of that which is next lower in
degree -- prision mayor -- and the maximum shall be within the
range of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we
deem it just and proper to impose the penalty of prision mayor in
its minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years 8
months and 1 day as maximum. Noting that appellant has already
served the minimum period, she may now apply for and be
released from detention on parole.[91]
Epilogue
Being a novel concept in our jurisprudence, the battered
woman syndrome was neither easy nor simple to analyze and
recognize vis--vis the given set of facts in the present case. The
Court agonized on how to apply the theory as a modern-day
reality. It took great effort beyond the normal manner in which
decisions are made -- on the basis of existing law and
jurisprudence applicable to the proven facts. To give a just and
proper resolution of the case, it endeavored to take a good look at
studies conducted here and abroad in order to understand the
intricacies of the syndrome and the distinct personality of the
chronically abused person. Certainly, the Court has learned much.
And definitely, the solicitor general and appellants counsel, Atty.
Katrina Legarda, have helped it in such learning process.
 While our hearts empathize with recurrently battered persons,
we can only work within the limits of law, jurisprudence and given
facts. We cannot make or invent them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of self-
defense arising from the battered woman syndrome. We now sum
up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two
battering episodes between the appellant and her intimate
partner. Second, the final acute battering episode preceding the
killing of the batterer must have produced in the battered persons
mind an actual fear of an imminent harm from her batterer and an
honest belief that she needed to use force in order to save her
life. Third, at the time of the killing, the batterer must have posed
probable -- not necessarily immediate and actual -- grave harm to
the accused, based on the history of violence perpetrated by the
former against the latter. Taken altogether, these circumstances
could satisfy the requisites of self-defense. Under the existing facts
of the present case, however, not all of these elements were duly
established.
WHEREFORE, the conviction of Appellant Marivic Genosa for
parricide is hereby AFFIRMED. However, there being two (2)
mitigating circumstances and no aggravating circumstance
attending her commission of the offense, her penalty
is REDUCED to six (6) years and one (1) day of prision mayor as
minimum; to 14 years, 8 months and 1 day of reclusion
temporal as maximum.
Inasmuch as appellant has been detained for more than the
minimum penalty hereby imposed upon her, the director of the Bureau
of Corrections may immediately RELEASE her from custody upon
due determination that she is eligible for parole, unless she is
being held for some other lawful cause. Costs de oficio.
SO ORDERED.
Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr.,
Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez,
JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
391
Ynares-Santiago J., see dissenting opinion.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-43588 November 7, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
NATIVIDAD LUAGUE and WENCESLAO ALCANSARE, defendants-
appellants.
Vicente E. Calanog for appellants.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
The spouses Wenceslao Alcansare and Natividad Luague having been
charged with homicide in the Court of First Instance of Occidental Negros
and sentenced, the former to the penalty of from eight years and one day
of prision mayor, as the minimum, to fourteen years, eight months and one
day of reclusion temporal, as the maximum, with the accessories of the law,
and the latter to that of from six years and one day of prision mayor, as the
minimum, to twelve years and one day of reclusion temporal, as the
maximum, with the accessory penalties of the law, both to indemnify jointly
and severally the heirs of Paulino Disuasido in the sum of one thousand
pesos, with costs, appealed to this court for a review of the judgment
rendered against them, praying that the same reversed and that they be
acquitted.
Upon examination of the appeal, it appears: that in the morning of February
18, 1935, while the accused Natividad Luague was in her house situated in
Lupuhan, barrio of Agpañgi, municipality of Calatrava, Occidental Negros,
with only her three children of tender age for company, her husband and co-
accused Wenceslao Alcansare having gone to grind corn in Juan Garing's
house several kilometers away, Paulino Disuasido came and began to make
love to her; that as Natividad could not dissuade him from his purpose, she
started for the kitchen where Paulino followed her, notwithstanding her
instance that she could by no means accede to his wishes, for Paulino, bent
on satisfying them at all costs, drew and opened a knife and, threatening her
with death, began to embrace her and to touch her breasts; that in preparing
to lie with her, Paulino had to leave the knife on the floor and the accused,
taking advantage of the situation, picked up the weapon and stabbed him in
the abdomen; and that Paulino, feeling himself wounded, ran away jumping
through the window and falling on some stones, while the accused set forth
immediately for the poblacion to surrender herself to the authorities and
report the incident.
Natividad Luague's act in mortally wounding Paulino Disuasido, unaided her
husband and co-accused Wenceslao Alcansare, and in the circumstances
above set out, constitutes the exempting circumstance defined in article 11,
subsection 1, of the Revised Penal Code, because, as stated by a
commentator of note, "aside from the right to life on which rest the legitimate
defense of our person, we have the right to party acquired by us, and the
right to honor which is not the least prized of man's patrimony." (1 Viada,
172, 173, 5th edition.) "Will the attempt to rape a woman constitute an
aggression sufficient to put her in a state of legitimate defense?" asks the
same commentator. "We think so," he answer, "inasmuch as a woman's
honor cannot but be esteemed as a right as precious, if not more, cannot
her very existence; this offense, unlike ordinary slander by word or deed
susceptible of judicial redress, in an outrage which impresses an indelible
blot on the victim, for, as the Roman Law says: quum virginitas, vel castitas,
corupta restitui non protest (because virginity or chastity, once defiled,
cannot be restored). It is evident that a woman who, imperiled, wounds, nay
kills the offender, should be afforded exemption from criminal liability
provided by this article and subsection since such killing cannot be
considered a crime from the moment it became the only means left for her
to protect her honor from so great an outrage." (1 Viada, 301, 5th edition.)
Similar to the present question was the one determined the Supreme Court
of Spain in a decision of February 21, 1911: "This court in due homage to
the principles of morality and in strict observance of the provision of law
justly interpreted, has always held that one of the rights referred to in article
8, subsection 4, of the Penal Code, is that which assists a woman in
defense of her honor when an attempt is made to repel the aggression or to
avoid in time the imminent danger of its consummation; and in view of this, it
must be conceded upon the findings of the trial court, that the accused
Maria Sanchez Cañistro acted in legitimate self-defense, because the
conduct of Diego Cardenas, who made love to her, in blowing in at midnight,
knocking at the door and demanding admittance and against Maria's refusal,
insisting in his purpose and threatening to break open the door, in the light
of prior events and the circumstances of the case, implies the imminence of
an affront against honor, involving an actual and certain danger to the
person so threatened, while at the same time the fact that she was alone
that no help was forthcoming; her founded fear that the door might give way
392
and the dreaded evil wrought, her consequent helplessness on the advent
of that crisis, and her natural desire to attest openly her conjugal fidelity by
foiling all suspicious aspersions, show the reasonableness of the defensive
measures availed of by her and warrant her complete exemption from
liability, inasmuch as, aside from all these, it does not appear from the
decision that said accused had previously committed any act deserving of
censure or marring the just motive which obviously induced her to repel, as
she did, a violence unprovoked by her. Thus viewed, all the requisites of the
exempting circumstance above mentioned are present and should be taken
into consideration, etc." (1 Viada, 304, 5th edition.)
The theory the prosecution, which we consider a trifle unsubstantial is as
follows: The accused Wenceslao Alcansare, thinking that Paulino
importuned his wife with unchaste advances, out of jealousy, decided to get
rid of him. His chance to bring about his plan can when, in the morning of
the crime, Paulino happened to pass in front of the house of the spouses
with his friend Olimpio Libosada. The accused wife invited Paulino to drop
in, which the letter and his friend did. The spouses met them at the
threshold. The accused wife asked Paulino whether he had a knife and as
the latter answered in the affirmative, she asked him to lend it to lend it to
her because she wanted to cut her nails, to which Paulino willingly acceded,
while the accused wife was cutting her nails, she asked Paulino where he
came from and the latter answered, turning his head around, that he came
from the house of one Inting, whereupon the accused wife slashed him in
the abdomen. Paulino tried to return the blow but the accused husband
picked up a stone and struck him in the forehead. Wounded in the abdomen
and in the forehead, Paulino fled therefrom.
The government presented three witnesses to establish this theory. Pablo
Alvarez, barrio lieutenant of Cabuñgahan, testified that on his way to
"communal" the day before the crime, he met the accused wife who told him
that she had wanted to see him and ask his help because her husband, who
was jealous of Paulino, was maltreating her and he was furthermore
resolved to assault Paulino at sight. On the following day, Alvarez, in his
way to Bacacay, dropped in the house of the accused spouses to inquire
whether they had tobacco seeds and, as they answered him in the negative,
he went his way. He had hardly left the place when Paulino and Olimpio
arrived, the accused wife inviting the former to drop in. Paulino and Olimpio
went to the threshold of the house and the accused spouses, in turn, went
down, and the four engaged in a conversation which, to Alvarez, seemed a
friendly one. The witness left and when he returned to the place sometime
later, he was informed that Paulino had been stabbed.
The accused were from the barrio of Agpañgi and not from Cabuñgahan
where the witness was the barrio lieutenant. Had the accused wife gone to
complain against the alleged conduct of her husband, she would have
sought the lieutenant of Agpañgi, her barrio. The accused wife, by reporting
the incident directly to the municipal authorities without seeking the
intervention of any barrio lieutenant, showed that she knew where to go in a
difficulty.
Were it true that the accused husband, prompted by jealousy, designed to
do away with Paulino, it would have been because he observed that his wife
somehow returned Paulino's attentions, for otherwise he would not have
indulge in tragic cogitations. From any point of view, however, it is quite
incomprehensible why the wife would take upon herself and the husband
would charge her with, the execution of the plan. The observation is no less
true if the spouses plotted in common for it would have been patently
disgraceful and cowardly of the husband to thrust its execution upon the
wife at the hazard of her life, and liberty to shield his own, in the event of
prosecution; and there is the husband was thus minded. Under the theory of
the prosecution, whether the accused husband doubted his wife's fidelity or
was sure of it, in connection with Paulino's attentions, the natural thing in
either case would be for him, unaided by his wife, to avenge the affront or
punish the offender. In the case at bar, we must assume that, if the motive
attributed to him by the prosecution were true, the accused would have
acted, as would the great majority of men in identical circumstances.
The witness Alvarez, himself testified that he was informed the day before
by the wife of the accused husband that the latter would get even with
Paulino at the first opportunity. The witness saw them together in the
morning of the crime and he should have surmised that the announced
tragedy might take place. Rather than foil it, as an agent of the law, if for no
other reason, he went his way unconcerned, as if nothing serious was
impending.
We find his conduct, or that which he claims to have followed, so extremely
strange to be considered true. When the truth is beyond our reach, as is
often the case, we have to be contented with the probable. This is the basis
of the so-called presumptions of fact. The acts which this witness claims to
have done are so out of ordinary conduct of men as to be devoid of
probability. Occasionally, indeed, there are those who behave strangely, but
this is the exception and not the rule.
In addition to this, the theory of the prosecution that the accused husband
and his wife had conspired to kill Paulino is overcome by the very facts
which the prosecution itself has attempted to prove. If such conspiracy had
really existed, the accused spouses would have been fully prepared to carry
it into execution, because rational beings differ from those who are not in
that when they embark on anything, they make the s equal to its realization.
However, these amused, on the on, had neither a rusty bolo nor an outworn
club to cope with Paulino. The weapon with which Paulino was first
393
wounded was his own knife which, according to the prosecution, the
accused wife had to borrow from him on the pretext that she wanted to cut
her nails, and later a stone which the accused husband casually picked up
from the ground. Yarns of this kind make good material for fables.
Angel Emia, the other government witness who testified at the trial that he
saw the crime attributed to the two accused by the prosecution, made a
previous statement wherein he disclaimed knowledge of who had stabbed
Paulino. Required to explain the contradiction, he bungled in his attempt.
The trial judge erred in giving him credit. Olimpio Libosada, another
government witness, likewise affirmed that he had seen all that bad
transpired, claiming that he then accompanied Paulino, It seem strange,
however, that in the two statements made by Paulino before his death he
did not state that he was accompanied by Libosada or by any other person
in the morning of the crime. It likewise happens that the conduct of this
witness, according to his own testimony, appears to be inconsistent
because he did nothing to defend and help Paulino, his friend and
companion, in that most critical moment, and did not report the crime to the
authorities, disappearing from the scene all of a sudden with a very frivolous
excuse that "he was afraid to be implicated". Furthermore, after discarding
the testimony of Angel Emia, there is nothing to corroborate that of Olimpio
Libosada which, by its inherent weakness, cannot be alone and
unsubstantiated by other reliable incriminatory circumstances, support a
judgment of conviction. lawphil.net
As to the two statements, Exhibit C and D, styled, ante mortem by the
Solicitor-General, the trial court properly disregarded because them there is
no evidence of record that Paulino had made them under a sense of
impending death and with no hope of recovery.
The trial judge gave unusual importance to the testimony of the two
policemen who testified that they made an ocular inspection of the scene of
the crime and found no bloodstain in the kitchen of the house of the accused
spouses. This, according to the trial judge, destroys the theory of the
defense that Paulino was stabbed in said kitchen by the accused wife when
he tried to lie with her through intimidation and violence. We are of the
opinion that the trial judge erred on this point as he did on others. It appears
that the said policemen did not also find any bloodstain on the threshold of
the house of the accused spouses where, according to the prosecution, the
aggression took place. Therefore, said testimony contradicts the defense no
less than it does the prosecution.
In resume, we are of the opinion that we should, as we do hereby hold that
the accused Natividad Luague in wounding Paulino Disuasido to death,
acted in legitimate self-defense, and that the other accused Wenceslao
Alcansare had no participation in said act; wherefore, reversing the
appealed judgment, we hereby acquit both accused, and order their
immediate release, if in confinement, with costs de oficio.
Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-41674 March 30, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
REMEDIOS DE LA CRUZ, defendant-appellant.
Silvino Lopez de Jesus for appellant.
Office of the Solicitor-General Hilado for appellee.
VICKERS, J.:
This is an appeal from a decision of the Court of First Instance of Nueva
Ecija, finding the defendant guilty of homicide and sentencing her to suffer
not more than fourteen years, eight months and one day of reclusion
temporaland not less than eight years and one day of prision mayor, to
indemnify the heirs of the deceased Francisco Rivera in the sum of P1,000,
and to pay the costs.
Appellant's attorney makes the following assignments of error:
I. El Juzgado a quo, erro al dar absoluto credito a las pruebas de la
acusacion, las que son insuficientes para apoyar una declaracion de
conviccion.
II. El Juzgado a quo erro al declarar que los celos fueron el motivo
que impulso a la acusada al agredir al occiso Francisco Rivera.
III. El Juzgado a quo al declarar increible el testimonio de la
acusada en esta causa.
IV. Y el Juzgado a quo erro al no absolver a la acusada.
394
It appears from the evidence that on the evening of February 18, 1934,
Francisco Ramos and his wife, Brigida Vistada; his sister, Baltazara Ramos;
and a woman named Consuelo or Natividad Santoyo called at the house of
the defendant and asked her to go with them to a wake in honor of one
Sion, who had died in the house of Maria Inguit. About nine o'clock the
defendant and her friends started home. They were followed about five
minutes later, according to Enrique Bautista, by the deceased Francisco
Rivera, who had been playing cards in the house where the wake was held.
He was accompanied by Enrique Bautista. Rivera and Bautista overtook
defendant's party. When they reached a narrow part of the path, Rivera
went ahead of Bautista. At that time the members of the defendant's party
were walking in single file. Baltazara Ramos was in the lead and the
defendant was the hindmost. She was about two brazas from the person
immediately ahead of her. Francisco Ramos, the only one of defendant's
companions that was called to testify, heard someone cry out "Aruy, Dios
mio". He went back and found that Francisco Rivera had been stabbed
under the right breast. The wounded man was taken to the hospital, where
he died the next afternoon.
Francisco Ramos testified that it took him about two minutes to go back to
the place where Francisco Rivera was. He found and that Enrique Bautista
was with the wounded man, and the defendant had started back towards the
house of mourning. He overtook her. She had a knife in her hand. When
they reached the house of Maria Inguit, Remedios de la Cruz stuck the knife
into a table and said that she stabbed Francisco Rivera because he
embraced her.
The case for the prosecution rests upon the testimony of Enrique Bautista.
According to him the defendant waited on the right side of the path near
some guava trees and stabbed Francisco Rivera with a knife in her right
hand when he arrived in front of her; that the injured man cried "Aruy, Dios
mio", while the defendant turned around and returned to the house of Maria
Inguit, saying "Icao ay malaon na" (hacia tiempo ya). He further testified that
the defendant stabbed the deceased before either of them had said
anything; that the distance between him and the deceased was about one
foot; that he did not see any of the companions of the defendant after they
reached the path and had to walk one behind the other.
The defendant on the other hand testified that after they had passed a fork
in the trail and reached a narrow part a man suddenly threw his arms
around her from behind, caught hold of her breasts and kissed her, and
seized her in her private parts; that she tried to free herself, but he held her
and tried to throw her down; that when she felt weak and could do nothing
more against the strength of the man, she got a knife from her pocket,
opened it, and stabbed him in defense of her honor. She further testified that
the man who attacked her did not say anything; that she asked him who he
was but he did not answer; that when she was assaulted she cried for help,
saying "Madre mia; Dios mio"; that when she was seized, she was about
two brazas behind her nearest companion; that when she was face to face
with her assailant during the struggle she could scarcely recognize his face
in the darkness and could not be sure that it was Francisco Rivera.
Her testimony as to what occurred is as follows:
P. ¿Y que paso siendo usted la ultima de entre sus compañeros? —
R. Despues de pasar nosotros en una bifurcacion de los caminos
cuando llegabamos en una parte estrecha el occiso subitamente me
abrazo por detras cogiendome los pechos y basandome.
P. ¿Y entonces que hizo usted cuando usted sintio ese abrazo y
beso? — R. todavia me agarro en mi parte genital y en eso yo
trataba de desasirme de el; el me siguio abrazando cogiendome de
los pechos y basandome, y yo a mi vez seguia tratando de
desasirme de el insistentemente.
P. ¿Y que sucedio? — R. Cuando yo trataba de desasirma de el, el
me siguio abrazando y yo a mi vez seguia tratandome de
desassirme de el y el llego a agarrarme en la parte genital y trato de
lanzarme.
P. ¿Y que hizo usted cuando le trataba de lanzarle a usted el
occiso? — R. Yo procuraba desasirme de el y cuando me quede
debilitada y ya no podia hacer nada contra la fuerza de el yo saque
de mo bolsillo un cortaplumas.
P. ¿Y que hizo usted del cortaplumas? — R. Lo abri porque cuando
ya no podia hacer nada y estaba y a debil yo hice lo que debia
hacer en defensa de mi pudor, le apuñale.
She further testified that she was engaged in selling fruit, and that the
fanknife in question was in a pocket of the overcoat she was wearing that
day; that she went off with her friends without having an opportunity of
changing her clothes.
We cannot believe the testimony of Enrique Bautista, because Francisco
Ramos, one of the witnesses for the prosecution, testified that it was a dark
night, and Bautista himself said that he could scarcely see anyone in the
darkness ("Apenas se podia ver a alguien en esa obscuridad."); that he did
not see any of the companions of the defendant.
395
It appears from the evidence that the deceased had been making love to the
defendant, and also to another girl named Felicisima Sincaban; but the
finding of the trial judge that Francisco Rivera and the defendant were
engaged, that she was madly in love with him and was extremely jealous of
Felicisima Sincaban is not sustained by the evidence of record.
The appellant stabbed the deceased only once, although she retained
possession of the knife, and undoubtedly could have inflicted other wounds
on him if she had desired. In other words she desisted as soon as he
released her.
The evidence shows that an officer of the Constabulary went to see the
injured man about eleven o'clock that night in the hospital, but it does not
appear that Rivera told him anything about the circumstances under which
he had been stabbed.
The appellant is an illiterate barrio girl, unable to write her name, and
scarcely eighteen years old. We do not believe her story is a fabrication. In
this connection it is to be noted that almost immediately after the incident in
question took place, the appellant said she stabbed Francisco Rivera
because he embraced her. It is not improbable that she was reluctant to
relate in the presence of all the people in the house of Maria Inguit the
details of what had occurred.
We are convinced from a study of the record that the deceased did in fact
grab hold of the defendant on the night in question, and whether he
intended to rape her or not, taking into consideration that it was a dark night
and that the deceased grabbed her from behind without warning and without
making himself known and refused to say who he was, and in the struggle
that followed touched her private parts, and the fact that she was unable to
free herself by means of her strength alone, we are of the opinion that she
was justified in making use of the pocket-knife in repelling what she believed
to be an attack upon her honor, since she had no other means of defending
herself.
In the case of the United States vs. Ah Chong (15 Phil., 488), this court held
that a person is not criminally responsible when, by reason of a mistake of
facts, he does an act for which he would be exempt if the facts were as he
supposed them to be, but would constitute murder if he had known the true
state of facts at the time, provided that the ignorance or mistake of fact was
not due to negligence or bad faith.
The appellant claims to have cried for help, but so far as the record shows
her cries were not heard by any of her companions. Whether she did in fact
cry for help, as claimed by her, or failed to do so because of the suddenness
with which the deceased grabbed her and the fright which it naturally
caused, taking into consideration the circumstances of the case, we still
think she is exempt from criminal liability. In the case of the United
States vs. Santa Ana and Ramos (22 Phil., 249), this court held that a
woman in defense of her honor is justified in inflicting wounds or her
assailant with a bolo which she happens to be carrying, even though her cry
for assistance might have been heard by people near by.
For the foregoing reasons, the decision appealed from is reversed, and the
appellant is acquitted, with the costs de oficio.
Avanceña, C.J., Malcolm, Abad Santos, Imperial, Butte, and Diaz, JJ.,
concur.
Separate Opinions
HULL, J., dissenting:
My colleagues possibly through chivalry and compassion have given much
greater credence to the tale of the defendant than it justifies. I am convinced
that the trial judge, who heard her testify, more correctly appreciated the
facts of this case.
Goddard, J., concurs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
C.A. No. 384 February 21, 1946
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee..
396
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First
Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue was
acquitted, but defendant Avelina Jaurigue was found guilty of homicide and
sentenced to an indeterminate penalty ranging from seven years, four
months and one day of prision mayor to thirteen years, nine months and
eleven days of reclusion temporal, with the accessory penalties provided by
law, to indemnify the heirs of the deceased, Amando Capina, in the sum of
P2,000, and to pay one-half of the costs. She was also credited with one-
half of the period of preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to
the Court of Appeals for Southern Luzon, and in her brief filed therein on
June 10, 1944, claimed —
(1) That the lower court erred in not holding that said appellant had
acted in the legitimate defense of her honor and that she should be
completely absolved of all criminal responsibility;
(2) That the lower court erred in not finding in her favor the additional
mitigating circumstances that (a) she did not have the intention to
commit so grave a wrong as that actually committed, and that (b)
she voluntarily surrendered to the agents of the authorities; and
(3) That the trial court erred in holding that the commission of the
alleged offense was attended by the aggravating circumstance of
having been committed in a sacred place.
The evidence adduced by the parties, at the trial in the court below, has
sufficiently established the following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased
Amado Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province
of Laguna; that for sometime prior to the stabbing of the deceased by
defendant and appellant, in the evening of September 20, 1942, the former
had been courting the latter in vain, and that on one occasion, about one
month before that fatal night, Amado Capina snatched a handkerchief
belonging to her, bearing her nickname "Aveling," while it was being washed
by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house,
Amado approached her and spoke to her of his love, which she flatly
refused, and he thereupon suddenly embraced and kissed her and touched
her breasts, on account of which Avelina, resolute and quick-tempered girl,
slapped Amado, gave him fist blows and kicked him. She kept the matter to
herself, until the following morning when she informed her mother about it.
Since then, she armed herself with a long fan knife, whenever she went out,
evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the house of
defendant and appellant, and surreptitiously entered the room where she
was sleeping. He felt her forehead, evidently with the intention of abusing
her. She immediately screamed for help, which awakened her parents and
brought them to her side. Amado came out from where he had hidden under
a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father,
asking for forgiveness; and when Avelina's mother made an attempt to beat
Amado, her husband prevented her from doing so, stating that Amado
probably did not realize what he was doing. Nicolas Jaurigue sent for the
barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following
morning. Amado's parents came to the house of Nicolas Jaurigue and
apologized for the misconduct of their son; and as Nicolas Jaurigue was
then angry, he told them to end the conversation, as he might not be able to
control himself.
In the morning of September 20, 1942, Avelina received information that
Amado had been falsely boasting in the neighborhood of having taken
liberties with her person and that she had even asked him to elope with her
and that if he should not marry her, she would take poison; and that Avelina
again received information of Amado's bragging at about 5 o'clock in the
afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942,
Nicolas Jaurigue went to the chapel of the Seventh Day Adventists of which
he was the treasurer, in their barrio, just across the provincial road from his
house, to attend religious services, and sat on the front bench facing the
altar with the other officials of the organization and the barrio lieutenant,
Casimiro Lozada. Inside the chapel it was quite bright as there were electric
lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after
the arrival of her father, also for the purpose of attending religious services,
and sat on the bench next to the last one nearest the door. Amado Capina
was seated on the other side of the chapel. Upon observing the presence of
Avelina Jaurigue, Amado Capina went to the bench on which Avelina was
sitting and sat by her right side, and, without saying a word, Amado, with the
greatest of impudence, placed his hand on the upper part of her right thigh.
On observing this highly improper and offensive conduct of Amado Capina,
Avelina Jaurigue, conscious of her personal dignity and honor, pulled out
with her right hand the fan knife marked Exhibit B, which she had in a
pocket of her dress, with the intention of punishing Amado's offending hand.
397
Amado seized Avelina's right hand, but she quickly grabbed the knife with
her left hand and stabbed Amado once at the base of the left side of the
neck, inflicting upon him a wound about 4 1/2 inches deep, which was
necessarily mortal. Nicolas Jaurigue, who was seated on one of the front
benches, saw Amado bleeding and staggering towards the altar, and upon
seeing his daughter still holding the bloody knife, he approached her and
asked: "Why did you do that," and answering him Avelina said: "Father, I
could not endure anymore." Amado Capina died from the wound a few
minutes later. Barrio lieutenant Casimiro Lozada, who was also in the same
chapel, approached Avelina and asked her why she did that, and Avelina
surrendered herself, saying: "Kayo na po ang bahala sa aquin," meaning: "I
hope you will take care of me," or more correctly, "I place myself at your
disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant
Lozada advised Nicolas Jaurigue and herein defendant and appellant to go
home immediately, to close their doors and windows and not to admit
anybody into the house, unless accompanied by him. That father and
daughter went home and locked themselves up, following instructions of the
barrio lieutenant, and waited for the arrival of the municipal authorities; and
when three policemen arrived in their house, at about 10 o'clock that night,
and questioned them about the incident, defendant and appellant
immediately surrendered the knife marked as Exhibit B, and informed said
policemen briefly of what had actually happened in the chapel and of the
previous acts and conduct of the deceased, as already stated above, and
went with said policemen to the police headquarters, where her written
statements were taken, and which were presented as a part of the evidence
for the prosecution.
The high conception of womanhood that our people possess, however
humble they may be, is universal. It has been entertained and has existed in
all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that
a virtuous woman represents the only true nobility. And they are the future
wives and mothers of the land. Such are the reasons why, in the defense of
their honor, when brutally attacked, women are permitted to make use of all
reasonable means available within their reach, under the circumstances.
Criminologists and courts of justice have entertained and upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to
womanhood, as in the days of chivalry. There is a country where women
freely go out unescorted and, like the beautiful roses in their public gardens,
they always receive the protection of all. That country is Switzerland.
In the language of Viada, aside from the right to life on which rests the
legitimate defense of our own person, we have the right to property acquired
by us, and the right to honor which is not the least prized of our patrimony (1
Viada, Codigo Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression sufficient
to put her in a state of legitimate defense, inasmuch as a woman's honor
cannot but be esteemed as a right as precious, if not more, than her very
existence; and it is evident that a woman who, thus imperiled, wounds, nay
kills the offender, should be afforded exemption from criminal liability, since
such killing cannot be considered a crime from the moment it became the
only means left for her to protect her honor from so great an outrage (1
Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62
Phil., 504). .
As long as there is actual danger of being raped, a woman is justified in
killing her aggressor, in the defense of her honor. Thus, where the deceased
grabbed the defendant in a dark night at about 9 o'clock, in an isolated
barrio trail, holding her firmly from behind, without warning and without
revealing his identity, and, in the struggle that followed, touched her private
parts, and that she was unable to free herself by means of her strength
alone, she was considered justified in making use of a pocket knife in
repelling what she believed to be an attack upon her honor, and which
ended in his death, since she had no other means of defending herself, and
consequently exempt from all criminal liability (People vs. De la Cruz, 16
Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting
wounds on her assailant with a bolo which she happened to be carrying at
the time, even though her cry for assistance might have been heard by
people nearby, when the deceased tried to assault her in a dark and
isolated place, while she was going from her house to a certain tienda, for
the purpose of making purchases (United States vs. Santa Ana and Ramos,
22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by
someone touching her arm, and, believing that some person was attempting
to abuse her, she asked who the intruder was and receiving no reply,
attacked and killed the said person with a pocket knife, it was held that,
notwithstanding the woman's belief in the supposed attempt, it was not
sufficient provocation or aggression to justify her completely in using deadly
weapon. Although she actually believed it to be the beginning of an attempt
against her, she was not completely warranted in making such a deadly
assault, as the injured person, who turned out to be her own brother-in-law
returning home with his wife, did not do any other act which could be
considered as an attempt against her honor (United States vs. Apego, 23
Phil., 391)..
398
In the instant case, if defendant and appellant had killed Amado Capina,
when the latter climbed up her house late at night on September 15, 1942,
and surreptitiously entered her bedroom, undoubtedly for the purpose of
raping her, as indicated by his previous acts and conduct, instead of merely
shouting for help, she could have been perfectly justified in killing him, as
shown by the authorities cited above..
According to the facts established by the evidence and found by the learned
trial court in this case, when the deceased sat by the side of defendant and
appellant on the same bench, near the door of the barrio chapel and placed
his hand on the upper portion of her right thigh, without her consent, the said
chapel was lighted with electric lights, and there were already several
people, about ten of them, inside the chapel, including her own father and
the barrio lieutenant and other dignitaries of the organization; and under the
circumstances, there was and there could be no possibility of her being
raped. And when she gave Amado Capina a thrust at the base of the left
side of his neck, inflicting upon him a mortal wound 4 1/2 inches deep,
causing his death a few moments later, the means employed by her in the
defense of her honor was evidently excessive; and under the facts and
circumstances of the case, she cannot be legally declared completely
exempt from criminal liability..
But the fact that defendant and appellant immediately and voluntarily and
unconditionally surrendered to the barrio lieutenant in said chapel, admitting
having stabbed the deceased, immediately after the incident, and agreed to
go to her house shortly thereafter and to remain there subject to the order of
the said barrio lieutenant, an agent of the authorities (United States vs.
Fortaleza, 12 Phil., 472); and the further fact that she had acted in the
immediate vindication of a grave offense committed against her a few
moments before, and upon such provocation as to produce passion and
obfuscation, or temporary loss of reason and self-control, should be
considered as mitigating circumstances in her favor (People vs. Parana, 64
Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil.,
86).
Defendant and appellant further claims that she had not intended to kill the
deceased but merely wanted to punish his offending hand with her knife, as
shown by the fact that she inflicted upon him only one single wound. And
this is another mitigating circumstance which should be considered in her
favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15
Phil., 123).
The claim of the prosecution, sustained by the learned trial court, that the
offense was committed by the defendant and appellant, with the aggravating
circumstance that the killing was done in a place dedicated to religious
worship, cannot be legally sustained; as there is no evidence to show that
the defendant and appellant had murder in her heart when she entered the
chapel that fatal night. Avelina is not a criminal by nature. She happened to
kill under the greatest provocation. She is a God-fearing young woman,
typical of our country girls, who still possess the consolation of religious Separate Opinions
hope in a world where so many others have hopelessly lost the faith of their
elders and now drifting away they know not where.
HILADO, J., concurring:
The questions raised in the second and third assignments of error appear,
In past dissenting and concurring opinions my view regarding the validity or
therefore, to be well taken; and so is the first assignment of error to a certain
nullity of judicial proceedings in the Japanese-sponsored courts which
degree.
functioned in the Philippines during the Japanese occupation has been
consistent. I am not abandoning it. But in deference to the majority who
In the mind of the court, there is not the least doubt that, in stabbing to death sustain the opposite view, and because no party litigant herein has raised
the deceased Amado Capina, in the manner and form and under the the question, I have taken part in the consideration of this case on the
circumstances above indicated, the defendant and appellant committed the merits. And, voting on the merits, I concur in the foregoing decision penned
crime of homicide, with no aggravating circumstance whatsoever, but with at by Justice De Joya.
least three mitigating circumstances of a qualified character to be
considered in her favor; and, in accordance with the provisions of article 69
of the Revised Penal Code, she is entitled to a reduction by one or two
degrees in the penalty to be imposed upon her. And considering the
circumstances of the instant case, the defendant and appellant should be
accorded the most liberal consideration possible under the law (United
States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472;
People vs. Mercado, 43 Phil., 950)..
FIRST DIVISION

The law prescribes the penalty of reclusion temporal for the crime of
G. R. No. 120646 - February 14, 2000
homicide; and if it should be reduced by two degrees, the penalty to be
imposed in the instant case is that of prision correccional; and pursuant to
the provisions of section 1 of Act No. 4103 of the Philippine Legislature, PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. APOLINAR
DANDO, Accused-Appellant.
known as the Indeterminate Sentence Law, herein defendant and appellant
should be sentenced to an indeterminate penalty ranging from arresto
KAPUNAN, J.:
mayor in its medium degree, to prision correccional in its medium degree.
Consequently, with the modification of judgment appealed from, defendant
and appellant Avelina Jaurigue is hereby sentenced to an indeterminate This is an appeal from a decision of the Regional Trial Court, Branch 33,
Siniloan, Laguna finding PO3 Apolinar E. Dando ("accused-appellant") guilty
penalty ranging from two months and one day of arresto mayor, as
beyond reasonable doubt of murder.
minimum, to two years, four months, and one day of prision correccional, as
maximum, with the accessory penalties prescribed by law, to indemnify the
The Information filed against accused-appellant reads:
heirs of the deceased Amado Capina, in the sum of P2,000, and to suffer
the corresponding subsidiary imprisonment, not to exceed 1/3 of the
That on or about 6:19 o'clock in the evening of November 20, 1991 at
principal penalty, in case of insolvency, and to pay the costs. Defendant and
Barangay M. Pandeño, Municipality of Siniloan, Province of Laguna and within
appellant should also be given the benefit of 1/2 of her preventive the jurisdiction of this Honorable Court, the above-named accused while
imprisonment, and the knife marked Exhibit B ordered confiscated. So conveniently armed with a deadly weapon (cal. 45) with intent to kill, with
ordered.. treachery and evident premeditation, did then and there willfully, unlawfully
and feloniously attack, assault and shoot several times one CESAR CASTRO y
Ozaeta, Perfecto, and Bengzon, JJ., concur. VALMONTE with the said weapon, thereby inflicting upon him gunshot wounds
on the vital parts of his body which directly caused his death, to the damage
and prejudice of the surviving heirs of the victim.

399
That the qualifying and aggravating circumstances of treachery, evident
premeditation and abuse of superior strength attended the commission of the
crime.
CONTRARY TO LAW.1
On the same date, accused-appellant filed a motion for inhibition and for a
change of venue of the case because several staff members of Branch 33,
RTC of Laguna were related to the victim. On February 12, 1992, Judge
Venancio M. Tarriela, the Presiding Judge of said branch, granted the
motion.2 On May 14, 1992, this Court approved the change of venue and
designated Judge Jose C. Mendoza of Branch 26, RTC of Sta. Cruz, Laguna, to
try and decide the case.3
Accused-appellant filed a petition for bail4 which was denied after hearing on
the ground that the evidence against accused-appellant is strong.5 Accused-
appellant then went to the Court of Appeals via petition
for certiorari questioning the denial of his petition for bail.
Subsequently, on account of another motion for inhibition,6 filed by accused-
appellant alleging that a prosecution witness in the hearing for the petition for
bail was related to a staff member of Branch 26, the case was re-raffled and
transferred to Branch 28, RTC of Sta. Cruz, Laguna, presided by Judge
Fernando Paclibon, Jr.
On June 18, 1993, the Court of Appeals rendered its decision dismissing
accused-appellant's petition questioning the denial of his motion for bail, for
lack of merit.7
During trial and after the prosecution witness had already rested its case, the
Presiding Judge of Branch 28, RTC of Sta. Cruz, Laguna, likewise, inhibited
himself from further hearing the case when accused-appellant questioned his
impartiality because of his refusal to grant accused-appellant's motion to
recall prosecution witness Susana Masacupan to the witness stand as a
hostile witness.8 The case was transferred back to Branch 26, RTC of Laguna,
then presided by Judge Pablo Francisco.
On May 2, 1995, the trial court rendered its decision the dispositive portion of
which reads:
WHEREFORE, this Court finds the accused Apolinar Dando guilty beyond
reasonable doubt of the crime of murder as charged in the information,
qualified by treachery and committed with the aggravating circumstances of
use of craft or disguise and evident premeditation and hereby sentences him
to suffer the penalty of reclusion perpetua and to pay the heirs of Cesar
Castro as follows:
a.) the sum of P50,000.00 as death indemnity;
400
b.) the sum of P1,628,000.00 for loss of earning capacity; and
c.) the sum of P35,974.00 as reimbursement for expenses incurred in the
wake and burial of the victim; and to pay the costs.
SO ORDERED.9
The prosecution's account of the case as narrated in the brief of the Solicitor
General is as follows:
Prosecution witness Aldwin Gemanel testified that on November 20, 1991, he
went to the house located at Pandiño Street, Siniloan, Laguna of his uncle,
Angelito Millares, Jr. (Junior Millares) to look for his (Gemanel's) father.
Junior Millares' house was about 100 to 150 meters away from that of the
victim, Cesar Castro. Upon arrival at his uncle's place, a party was on-going
as it was the birthday of the former (p. 3, tsn, June 17, 1992). At the said
party, gunshots were fired by appellant and Junior Millares to celebrate the
occasion (p. 4, tsn, October 20, 1992 and pp. 14-15, tsn, August 26, 1993).
After a few hours at the birthday party, Gemanel decided to go to his
grandmother's house, a mere three (3) houses away from his uncle's house
(p. 5, tsn, June 17, 1992). On the way to his grandmother's house, he saw
appellant Apolinar Dando, sat on the side-car of a tricycle parked along
Pandiño Street in front of Junior Millares' house and placed a white
handkerchief over his face (p. 5-6, tsn, Ibid). Though puzzled by the action of
appellant, Gemanel proceeded to his grandmother's house and stayed there
for almost an hour (pp. 20-21, tsn, September 22, 1993). When Gemanel
went out of the house, he saw appellant get off the tricycle with the
handkerchief covering his face and walk towards the direction of the town
plaza (pp. 30-31, tsn, Ibid.). At that time, Gemanel followed appellant and
then he (Gemanel) entered a bakery to buy bread (pp. 28-29, tsn, Ibid).
While inside the bakery, Gemanel heard a shot, so he ran outside to look
where the shot came from (p. 36, tsn, Ibid). Thereupon, he saw appellant
with the same white handkerchief covering his face, firing three (3) more
shots at Cesar Castro, who was standing on the street in front of his
(Castro's) house. After the fourth shot appellant ran towards the "paraanan"
or alley, to the direction of the town plaza (pp. 37-43, tsn, Ibid).
Gemanel rushed home and told his mother what he had just witnessed (p.
53, tsn, September 22, 1993). His mother then went to the crime scene while
he was left to tend their store (p. 54, tsn, Ibid.) When his mother came back
after about ten (10) minutes, he confided to her that he saw appellant shoot
Cesar Castro (p. 54, tsn, Ibid). His mother then advised him not to tell
anyone. Then he went to the crime scene for a closer look of the victim (p.
55, tsn, Ibid).
The following day on November 21, 1991, Gemanel was fetched by police
officers from his school and was brought to the municipal building for
questioning. The day after, on November 22, 1991, he executed a statement
(Exhibit "A"; pp. 8-9, tsn, July 14, 1992).
Gemanel further testified that he was present when a slug was recovered
from the front yard of his uncle's (Millares') house (p. 11, tsn, July 14, 1992).
He personally saw the slug which was subsequently handed to Celso Castro,
son of Cesar Castro. He learned that the slug found was one of those fired
from the service pistol of appellant when the latter fired his gun during the
birthday party of his uncle (pp. 11-12, tsn, Ibid).
Susan Masakupan, 29 years of age, married and a resident of Pandiño Street,
Siniloan, Laguna, corroborated the testimony of Gemanel. She testified that
on or about 6:00 o'clock in the evening of November 20, 1991, while she was
getting dry clothes hanging at their clothesline located at their front yard, a
man wearing a white polo shirt with designs and a pair of khaki pants and
had a handkerchief covering his face passed by. Surprised with the man's
covered face, her gaze followed the man until the latter stopped by victim
Cesar Castro. Thereupon the man shot Cezar Castro and when the latter fell
down, the man continued on shooting at Cesar Castro two (2) or more shots.
After the additional shots, the man ran towards an alley (pp. 2-5, tsn, July
21, 1992).
SPO4 Efren Palma, Deputy Station Commander of the PNP, Siniloan, Laguna,
testified that three (3) slugs and three (3) empty shells were recovered from
the crime scene on the night of November 20, 1991 (p. 6, tsn, October 5,
1992).
Josue Flores, property custodian of the PNP, Siniloan, Laguna, testified that
he issued to appellant, who is a member of PNP, Siniloan, Laguna, (one 1)
service firearm, which was a caliber .45 pistol, Remington, with serial number
1945012 (pp. 3, 5 and 7, tsn, August 11, 1992).
Florentino Rañada, a member of the Central Intelligence Service of Siniloan,
Laguna, testified that he received from the Siniloan, Laguna police station the
following specimens:
- one (1) slug .45 caliber ammunition;
- three (3) pieces slug for .45 caliber ammunition;
- three (3) pieces empty shells for a .45 caliber ammunition;
- one (1) piece caliber Remington pistol with serial number 1945012.
and issued a receipt for them (Exhibits "E" and "E-1"; pp. 17-20, tsn, August
11, 1992).
Rañada further testified that one (1) slug of a .45 caliber pistol recovered
from the body of the victim, which was turned over to him by Arvee Castro,
brother of the victim (pp. 27-28, tsn, Ibid) has [sic] sent together with the
401
above specimens to the PNP crime laboratory for ballistic examination (p. 30,
tsn, Ibid).
Susan R. Jalla, PNP officer and criminologist, testified that she conducted a
ballistic examination on the specimens submitted (Exhibits "H", "I", "J" and
"K"; pp. 11-13, tsn Ibid).
She issued a certification (Exhibit "N") stating: ". . . microscopic examination,
MS-1, MRS-1, MRS-15 revealed the same individual characteristics as the test
bullets and test cartridges, respectively fired from the above-mentioned
firearm" (p. 17, tsn, Ibid).
Dr. Priscilla Realeza, Rural Health Physician of Pakil, Laguna, testified that she
conducted a postmortemexamination on the cadaver of Cesar Castro. She
issued an Autopsy Report (Exhibits "R" and "R-1") finding that the victim
sustained eleven (11) gunshot wounds (pp. 6-7, tsn Ibid) and that one (1)
bullet slug was extracted from his body (p. 12, tsn, Ibid).10
Accused-appellant, on the other hand, gave the following version of the
incident: On November 20, 1991, he was a member of the Philippine National
Police (PNP) with the rank of PO3 and detailed as security to the mayor of
Siniloan, Laguna. At around one o'clock in the afternoon of that day, he
arrived at the house of Junior Millares who was then celebrating his birthday.
He participated in a drinking spree up to three o'clock in the afternoon. On
that occasion, there was no firing of a gun. He did not bring his gun to the
birthday party because he was not in a habit of bringing his gun when he
attended such occasions.11 When he left the party, he went straight home
and slept. He woke up at around midnight because of an upset stomach and
vomitted. He went back to sleep and woke up the second time in the morning
of November 21, 1991, changed his clothes, ate his breakfast and went to
work at around eight o'clock in the morning.12 It was only on November 22,
1991 that he learned from his wife that the Chief of Police and the Mayor
were looking for him and that he was a suspect in the killing of Castro. After
eating his supper, he went to the municipal building where the Chief of Police
informed him that he was a suspect in the killing of Castro and was placed
under technical arrest. He surrendered his firearm for ballistic examination to
show that he had nothing to do with the killing. Thereafter, he did not know
what happened to firearm.13
The testimony of accused-appellant as to his whereabouts during the time the
crime was committed was supported by his wife Herninia Dando who testified
before the trial court that on November 20, 1991 she went home at 4 o'clock
in the afternoon to cook their supper. Less than an hour later, her husband
arrived, went to the sala and slept until the next morning. They had breakfast
together and after that, they went to their respective places of work.14
Accused-appellant assign the following errors committed by the trial court, to
wit:
 I to another guest, Agustin Salinas, who likewise fired said gun twice and then
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE
TESTIMONY OF PROSECUTION WITNESS ALDWIN OF GEMANEL THAT
ACCUSED APPELLANT APOLINAR DANDO WAS THE ASSAILANT WHO SHOT
THE VICTIM CESAR CASTRO.
II
THE TRIAL COURT ERRED IN FINDING THAT THE EMPTY SHELLS AND SLUGS
SUBMITTED FOR BALLISTIC EXAMINATION WERE THOSE RECOVERED FROM
THE SCENE OF THE CRIME AND ONE SLUG FROM THE BODY OF THE VICTIM
AND CAME FROM THE SERVICE FIREARM OF THE ACCUSED APPELLANT.
III
THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE PHYSICAL
EVIDENCE CONSISTING OF EMPTY SHELLS AND SLUGS PRESENTED BY THE
PROSECUTION AS TAINTED OR POLLUTED, AND HIGHLY UNRELIABLE.
IV
THE TRIAL COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF
ALDWIN GEMANEL AND THE BALLISTIC EXAMINATION OF THE SERVICE
FIREARM OF ACCUSED APPELLANT CONSTITUTED PROOF BEYOND
REASONABLE DOUBT OF THE GUILT OF THE ACCUSED FOR THE CRIME OF
MURDER.
V crime. The testimony of Gemanel on the events that transpired on November
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AND IN
SENTENCING HIM TO SUFFER THE PENALTY OF RECLUSION PERPETUA AND
TO PAY THE HEIRS THE SUM OF P1,620,000.00 FOR LOSS OF EARNING
CAPACITY OF THE VICTIM, AND OTHER DAMAGES.15
The first and third issues shall be dealt with together as they are interrelated.
Accused-appellant assails the testimony of Aldwin Gemanel alleging that it
was marred by inconsistencies and was incredible, therefore, unworthy of
belief. Among these inconsistencies, according to accused-appellant, are:
1. Gemanel testified that there was a birthday party attended by accused-
appellant in the house of his (Gemanel's) uncle, Junior Millares, and there he
saw accused-appellant pull out his gun and fire a shot downward on the floor.
However, Millares himself testified that accused-appellant merely gave to him
the gun and it was he (Millares) who fired two shots. Then he handed the gun
402
it was returned to accused-appellant.16
2. Gemanel testified that moments before the shooting of Castro, he saw
accused-appellant in front of the house of Millares putting a handkerchief to
cover his face and then going inside the tricycle to rest. However, during the
summary examination by the Municipal Judge who conducted the preliminary
investigation, he testified that he saw accused-appellant on board the tricycle
sleeping.17
3. Gemanel testified that he was barely one house away from the place of the
shooting when he heard a shot. When he looked at the place where the shot
came from, he saw a man already sprawled on the ground and the man,
whose face was covered by a handkerchief, fired two (2) more shots at the
victim and left passing through a pathway. In other words, there were three
(3) shots fired. Later, he changed his testimony stating that there were four
(4) shots fired.18
4. Gemanel testified that after the shooting, he approached the victim then
he went to his mother telling her that Castro was shot without naming the
assailant. He later testified that after the shooting, he went home to his
mother and revealed to her the identity of the assailant as Apolinar Dando.
Then he went back to the scene of the crime and saw that policemen were
already investigating the incident. When asked by the police investigator, he
told him right then and there that it was accused-appellant who shot the
victim.19
The foregoing inconsistencies are but minor details and they do not discredit
the positive identification of accused-appellant as the perpetrator of the
20, 1991 was clear, straightforward and consistent. Thus:
DIRECT-EXAMINATION BY FISCAL:
Q: - On November 20, 1991, where were you?
WITNESS
A: - I was on Pandeño Street Siniloan, Laguna, sir.
Q: - In what particular place in Brgy. Pandeño?
A: - About the middle of that area, sir.
Q: - You were at the middle part of that area. Will you kindly tell to this
Honorable Court your point of reference as to the place where you were at
the time?
A: - What I am saying is that I am at the middle of Pandeño Street, sir. Q: - What is the full name of your uncle Junior?

FISCAL A: - Junior Millares, sir.

Q: - And when you said you were at the middle portion of Pandeño Street, Q: - While you were there at the birthday celebration of your uncle Junior,
will you tell this Honorable Court the nearest house where you were at the what did you notice thereat?
time?
WITNESS
WITNESS
A: - There was a firing of gun, sir.
A: - Cesar Castro's house, sir.
Q: - Do you know the person who fired his gun at the time?
Q: - And what are you doing then?
A: - Yes, sir, Polly Dando.
A: - None, sir, I was then going to my grandmother's house.
Q: - Do you know Polly Dando personally?
Q: - And were you able to proceed to the house of your grandmother?
A: - Yes, sir.
A: - Yes, sir.
Q: - Do you know the real name of Polly Dando?
Q: - But prior to proceeding to the house of your "lola" did you go to any
other place? A: - Yes, sir, Apolinario Dando.

A: - Yes, sir. Q: - Where did you see Apolinario Dando fired his gun?

Q: - Where? A: - Under the table pointing downwards, sir.

A: - To my uncle Junior's house, sir, where there was a drinking spree. Q: - Do you know the caliber used by Dando?

Q: - Do you know why them was a drinking spree at the time? ATTY. RAGAZA

A: - Yes, sir, it was my uncle Junior's birthday. Incompetent, your Honor.

Q: - What was your purpose in going to the place of your uncle's birthday? COURT

A: - I was going to look for my father, sir. Objection noted, if he knows.

Q: - Did you. . .while you were there, by the way, where is the house of your WITNESS
uncle located?
A: - Yes, sir.
A: - On Pandeño Street, sir.
FISCAL
Q: - How far from your house, how many houses apart?
Q: - Will you tell this Honorable Court the caliber?
A: - About 15 houses, sir.

403
A: - A .45 caliber, "yung lapad", sir. A: - I saw Polly boarded a tricycle, sir.

Q: - Have you already seen a gun of that caliber? Q: - When you said Polly Dando boarded a tricycle, you mean to say Dando
went somewhere else?
A: - Yes, sir.
WITNESS
Q: - Where?
A: - No, he merely sat on board a tricycle which was parked there, sir.
A: - On TV and on posters, sir.
Q: - This tricycle has a driver?
xxx-xxx-xxx
A: - None, sir.
Q: - After that, where did you go?
Q: - What else did you notice?
A: - I went to my grandmother, sir.
A: - I saw Polly Dando placed a handkerchief over his face, sir.
Q: - Where is the house of your grandmother located?
xxx-xxx-xxx
A: - Also an Pandeño Street, sir.
FISCAL
Q: - How far from the house of your uncle Junior?
Q: - Do you know the color of the handkerchief?
A: - Three houses away, sir.
A: - Yes, sir, white with small drawings.
Q: - What did you do in the house of your lola?
Q: - Will you tell this Honorable Court the attire used by the accused
A: - I entered the house, sir. Apolinario Dando?

Q: - After that, what else happened? A: - He was wearing a white polo shirt, sir, and a khaki pants.

A: - I went out, sir. Q: - After you saw Apolinar Dando sat on a tricycle and put a handkerchief on
his face, what else happened?
Q: - Where did you go?
WITNESS
A: - On the street, sir.
A: - He merely rested for a short while, sir.
Q: - Were you alone at the time?
Q: - After that, what happened?
A: - Yes, sir.
A: - I left, sir.
Q: - While you were on the street, did you notice of any unusual incident?
Q: - You mean to say after you saw Apolinar sat on a tricycle and put a
handkerchief on his face and rested for a while, you went to your lola's
A: - Yes, sir.
house?

Q: - What was that incident?

A: - Yes, sir.
404
Q: - After that, where did you proceed? ATTY. RAGAZA

A: - I merely stayed on the street, sir. I moved to strike out the answer for not being responsive.

Q: - And again, while there on the street, did you again notice any unusual COURT
incident?
Sustained
A: - Yes, sir.
FISCAL
Q: - What was that incident?
Q: - While you were at the bakery, what else happened?
A: - Polly Dando got off the tricycle, sir.
WITNESS
Q: - Where did he go?
A: - I heard a shot, sir.
A: - Towards the plaza, sir.
Q: - What shot did you hear?
Q: - And what did you do?
A: - A gunshot, sir.
A: - I followed Polly, sir.
Q: - When you heard that gunshot, what did you do?
Q: - Up to what point did you follow him?
A: - I went beside the street, sir.
A: - About 2 houses, sir.
Q: - What did you find out?
Q: - While following Dando, what happened next?
A: - I saw Cesar Castro already sprawled on the ground, sir.
A - I entered a bakery, sir.
Q: - Was Cesar Castro alone at the time?
Q: - What was your purpose in going to that bakery?
A: - Yes, sir.
A: - I was going to buy bread, sir.
Q: - And do you know what was the cause of Cesar's falling to the ground?
Q: - Were you able to buy bread?
ATTY. RAGAZA
A: - No, sir.
Incompetent, your Honor, he already saw Cesar already sprawled on the
FISCAL ground.

Q: - Where did you proceed after that? COURT

A: - I heard a shot, sir. May answer. We will see the answer.

Q: - What did you do. . . . WITNESS

405
A: - No, sir. A: - Yes, sir.

FISCAL ATTY. RAGAZA

Q: - At that precise moment when you heard the gunshot and you go (sic) to Q: - And then you heard a shot?
the street to find our where the shot came from, where was Apolinar Dando
at the time? WITNESS

ATTY. RAGAZA A: - Yes, sir.

There is no testimony that Apolinar Dando was present at the time. Q: - Exactly, where were you when you heard the first shot?

COURT A: - In the bakery about to buy bread, sir.

There was no testimony that Apolinar Dando was them. The fiscal was asking Q: - Where were you facing?
where was Apolinar at the time. He was not asking why he was there. He did
not assume.
A: - Towards the bakery, sir.

WITNESS
Q: - Was there anybody attending to you in the bakery?

A: - I saw him walked a few steps and then fired his gun at Cesar, on his
A: - Yes, sir.
side, sir.

Q: - Now, you were merely waiting for bread that you would buy in that
xxx-xxx-xxx
bakery?

Q: - After you saw Apolinar for the second time at the sprawled body of
A: - Yes, sir, when suddenly I heard a shot.
Cesar, what else happened?

Q: - How many shots did you hear while you were in the bakery?
A: - He ran and went towards an alley, "paraanan", sir.20

A: - First, I heard one shot so I went out of the bakery and I saw Ka Cesar
On cross-examination, Gemanel gave substantially the same testimony:
being shot, sir.

Q: - In answer to the question of the Court in the last hearing, you said you
Q: - How many shots in all did you hear?
saw Dando going to the plaza and you followed him far a distance of about 2
houses, during the time you were following, did you meet any person?
A: - Three, sir.
A: - None, sir.
Q: - What was the interval between the first and the second shot?
Q: - And during all the time that you were following Dando, was he wearing a
handkerchief over his face? A: - First, I was inside the bakery when I heard a shot so I immediately went
out and saw Dando firing two shots on Ka Cesar who was already lying on the
ground, sir.21
A: - Yes, sir.

xxx-xxx-xxx
Q: - But you did not have much interest, that is why you stop following him
and stopped at a bakery?
ATTY. BALCE:

406
Q: - You heard a shot and you went out and stopped at this point marked by A: - Yes, Your Honor.
an "x"?
Q: - Where?
A: - Yes, sir.
A: - From the house of Ka Cesar.
Q: - And it was only a gunshot that you heard?
COURT:
A: - On that moment, one.
Q: - After hearing those shots, what did you observe, if any?
Q: - Just after the shot, did you not hear any person crying out in panic.
A: - The person with his handkerchief covering his face, was running and
A: - Nobody, sir. entered an alley, "paraanan".22

COURT: Well-settled is the rule that "inconsistencies on minor and trivial matters only
serve to strengthen rather than weaken the credibility of witnesses for they
Q: - After that first shot, did you hear any other shot? erase the suspicion of rehearsed testimony."23Moreover, the alleged
inconsistencies refer only to inconsequential details and not to the crux of the
case that Gemanel saw accused-appellant gun down Castro. Gemanel never
A: - I heard, Your Honor.
wavered on this point even for a single moment. The consistency on the part
of Gemanel in identifying accused-appellant as the perpetrator of the crime
COURT: makes him a credible witness. His testimony cannot be discredited by a mere
alibi and denial on the part of accused-appellant.
Q: - How many shots did you hear after hearing the first shot?
Alibi is one of the weakest defenses in criminal cases and it should be
A: - Three to four shots, Your Honor. rejected when the identity of the accused is sufficient and positively
established by the prosecution.24 Moreover, in order to overcome the
ATTY. BALCE: evidence of the prosecution, the accused must establish not only that he was
somewhere else when the crime was committed but also that it was
physically impossible for him to have been at the scene of the crime at the
I move that the last answer be placed in tagalog. time it was committed.25 In the present case, accused-appellant failed to
show that it was physically impossible for him to be at the scene of the crime
A: - "Mga tatlo o apat" when it was committed. He even admitted that his house was only about one-
and-a-half kilometers away from the house of Millares,26 which was very near
Q: - What did you say? the place where Castro was shot to death. Undoubtedly, the distance did not
render it impossible for accused-appellant to be at the scene of the crime at
the time it was committed. Accused-appellant's defense of alibi must
A: - "Tatlo po o apat".
necessarily fail.

ATTY. BALCE:
As to the alleged inconsistency between the testimonies of Gemanel and that
of Millares, we find the testimony of Gemanel to be more credible since the
But your first answer that I heard was "tatlo bale apat." inconsistency lies in the affidavit and testimony of Millares himself. In his
affidavit, Millares averted that he fired the gun first and then accused-
A: - Yes sir. appellant fired the gun twice.27 In his testimony in court, however, he
(Millares) claimed that after firing the gun, he gave the gun to Agustin
COURT: Salinas.28 Confronted with the inconsistent statements of Millares and the
straightforward and categorical testimony of Gemanel, which was
corroborated by that of Susana Masacupan, this Court believes and gives
Q: - Did you know where the shots came from? credence to the latter.

407
When he testified in court, Gemanel was then only thirteen (13) years old
and a second year high school student at Siniloan Public Highhool. Indeed
"the testimony of a child of sound mind is likely to be more correct and
truthful than that of older persons, so that once established that he has fully
understood the character and nature of an oath, his testimony should be
given full credence.29
In the second and third issues raised in his brief, accused-appellant opines
that there is no proof showing that the empty shells and slugs recovered at
the scene of the crime were the same empty shells and slugs submitted for
ballistic examination. According to accused-appellant, the relatives of the
victim tampered with these pieces of evidence making the same tainted or
polluted, therefore, unreliable.
Other than these bare allegations, however, accused-appellant failed to prove
by convincing evidence any irregularity in the handling by the police officers
of these particular pieces of evidence. The ballistic examination report is thus
clothed with the presumption of regularity. At any rate, the presentation of
weapons (or the slugs and bullets, as in this case) used and ballistic
examination are not prerequisites for conviction.30 The corpus delicti and the
positive identification of accused-appellant as the perpetrator of the crime are
more than enough to sustain his conviction.
Anent the fifth issue, accused-appellant contends that the trial court erred in
convicting him for murder and awarding in favor of the victim's heirs the sum
of P1,620,000.00 for his loss of earning capacity and other damages.
Art. 248 of the Revised Penal Code reads:
Art. 248. Murder. Any person who, not falling within the provisions of Article
246 shall kill another, shall be guilty of murder and shall be punished
by reclusion temporal in its maximum period to death31 if committed with any
of the following circumstances:
1. With treachery, taking advantage of superior strength, with the aid of
armed men, or employing means to weaken the defense or of means or
persons to insure or afford impunity.
xxx-xxx-xxx
5. With evident premeditation.
xxx-xxx-xxx
The essence of treachery is that the attack comes without a warning and in a
swift, deliberate and unexpected manner, affording the hapless, unarmed and
unsuspecting victim no chance to resist or escape.32 In this case, accused-
appellant, whose face was covered by a handkerchief; approached the victim,
408
who was merely standing by the gate in front of his house, and shot him. The
victim was undoubtedly caught unaware and had no chance of putting up any
defense. Clearly, treachery attended the commission of the crime since the
attack, although frontally, was no less sudden and unexpected, giving the
victim no opportunity to repel it or offer any defense of his person.33
The trial court further established that there was evident premeditation and
that accused-appellant used "craft, fraud or disguise" in committing his
dastardly act:
. . . When DANDO (accused-appellant) boarded the tricycle parked in front of
the residence of Angelito Millares, Jr., he did so not to rest or sleep there. He
was there, with a handkerchief over his face, lying in wait for Cesar Castro to
come out and stand by the gate of his house as he customarily did while
taking a rest. And DANDO stayed inside the tricycle for a couple of hours, like
an eagle waiting for its prey. From the parked tricycle, DANDO could clearly
see the gate of Cesar Castro's house, 100 to 150 meters away. DANDO'S stay
inside the tricycle lasted for about two (2) hours, a sufficient time for him to
reflect on the consequences of his plan to kill Cesar Castro. And when Cesar
Castro did finally come out, and stood there unarmed by the gate of his
house, DANDO swiftly swooped down on his prey and triggered the burst
from his service firearm which snuffed the life of his victim.34
Given the foregoing attendant aggravating circumstances, the trial court
properly sentenced accused-appellant to suffer the penalty of reclusion
perpetua. However, the amount it awarded in favor of the heirs of the victim
should be modified in accordance with prevailing jurisprudence.
The trial court correctly awarded the amount of P50,000 as indemnity for the
death for Cesar Castro. Said amount is awarded without need of further proof
other than the death of the victim.35 In addition, the heirs are also entitled to
receive a compensation for the loss of earning capacity of the victim. The
formula for computing the same as established in decided cases36 is as
follows:
Net Earning Capacity = Life Expectancy x Gross Annual Income - Necessary
Living Expenses
The life expectancy is equivalent to two thirds (2/3) multiplied by the
difference of 80 and the age of the deceased.37 Since Castro was 47 years old
at the time of his death, his life expectancy was 22 more years.38 Celso
Castro testified that his father earned P3,000.00 monthly or P36,000.00
annually from the sash factory. In addition, the victim's annual income from
farming, as found by the trial court, was P53,000.00. The gross annual
income of the deceased was P89,000.00. Allowing for necessary living
expenses of fifty percent (50%) of his gross earnings, his total net earning
capacity amounts to P979,000.00.39
As to the expenses actually incurred by the family of the victim for the wake them on the following morning, he found them in an inclosed filed which was
and burial, Celso Castro was able to prove during trial that they incurred the planted with sugar cane, at a distance of about 100 meters from his granary;
sum of P39,974.00. The amount of P35,974.00 awarded by the trial court as thereupon, for the purpose of ascertaining who had done it, he left
reimbursement of funeral expenses is, accordingly, increased to P39,974.00. the palay there, and that night, accompanied by Gregorio Bundoc, Antonio
Ribao, and Saturnino Tumamao, he waited near the said field for the person
WHEREFORE, premises considered, the decision of the trial court is hereby who might return to get the palay. A man, who turned out to be Guillermo
AFFIRMED with MODIFICATION that accused-appellant shall pay the heirs of Ribis, made his appearance and approaching the palay, attempted to carry
the victim the following amounts:
it away with him, but at that instant Bumanglag, Bundoc, and Ribao
assaulted the presumed thief with sticks and cutting and stabbing weapons;
1. death indemnity in the amount of P50,000.00;
as a result of the struggle which ensued the person attacked fell down and
died instantly, Bumanglag and his companions believing that Guillermo
2. compensation for loss of earning capacity in the amount of P979,000.00; Ribis was the author of several robberies and thefts that had occurred in the
and
place.
3. reimbursement of funeral expenses in the amount of P39,974.00.
In view of the foregoing, the provincial fiscal filed a complaint on January 15,
1909, charging Rafael Bumanglag, Gregorio Bundoc, and Antonio Ribao
SO ORDERED.
with the crime of homicide, and the trial judge, on February 5 of the present
year, rendered judgment in the case, sentencing the three accused persons
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
to the penalty of fourteen years eight months and one day of reclusión
temporal, with the accessories, and to the payment of an indemnity of
Republic of the Philippines P1,000 to the heirs of the deceased, and the costs in equal parts, from
SUPREME COURT which decision only Gregorio Bundoc appealed.
Manila
From the facts above mentioned, fully proven in this case, the commission
EN BANC of the crime of homicide, defined and punished by article 404 of the Penal
Code, is inferred, inasmuch as Guillermo Ribis was violently deprived of his
G.R. No. L-5318 December 23, 1909 life in consequence of serious wounds and bruises, some of them of a
mortal nature, as appears from a certificate issued by a physician who
THE UNITED STATES, plaintiff-appellee, examined the body of the deceased, and who ratified said certificate at the
vs. trial under oath.
RAFAEL BUMANGLAG, ET AL., defendants. - GREGORIO
BUNDOC, appellant. The accused Bundoc, the only appellant, pleaded not guilty, but, in the
absence of justification, and his exculpatory allegation being unreasonable,
Iñigo Bitanga for appellant. it is not proper to hold that he assaulted and killed the deceased, with the
Attorney-General Villamor for appellee. help of his codefendants, in order to defend himself from an attack made by
the former with a bolo.

Both Gregorio Bundoc and his codefendants Bumanglag and Ribao

TORRES, J.:
On the night of January 2, 1909, Rafael Bumanglag, an inhabitant of the
pueblo of San Nicolas, Province of Ilocos Norte, missed 4 baares or 40
bundles of palay which were kept in his granary, situated in the place called
"Payas," barrio No. 16 of the said pueblo, and on proceeding to search for
409
declared that, during the fight with the deceased Ribis, they only beat the
latter with sticks, because he unsheathed the bolo he carried; but from the
examination made of the body it appeared that several serious wounds had
been inflicted with cutting and stabbing weapons, besides some bruises,
and according to the declaration of the health officer Felipe Barba, which
declaration was confirmed by the municipal president of Laoag, the bolo
worn by the deceased was in its sheath and hanging from his waist;
therefore it can not be concluded that the deceased even intended to
assault his murderers with his bolo either before he was attacked by them or
during the fight, because, had Ribis made use of the bolo he carried
sheathed, the bolo would have been found unsheathed at the place where
the fight occurred, and it is not reasonable to believe that, before falling to
the ground in a dying condition he succeeded in sheathing his bolo, in which
condition it was found on his body.
It is therefore indisputable that, without any prior illegal aggression and the
other requisites which would fully or partially exempt the accused from
criminal responsibility, the appellant and his two companions assaulted
Guillermo Ribis with sticks and cutting and stabbing arms, inflicting upon
him serious and mortal wounds, and therefore, the said accused is guilty of
the crime of homicide as co-principal by direct participation, fully convicted,
together with his codefendants who are already serving their sentence.
In the commission of the crime we should take into account the mitigating
circumstance No. 7 of article 9 of the Penal Code, because the defendant
acted with loss of reason and self-control on seeing that Guillermo Ribis was
taking material possession of the palay seized and hidden by him on the
previous night, thus committing one of the numerous unlawful acts
perpetrated at the place, to the damage and prejudice of those who, by their
labor endeavor to provide themselves with the necessary elements for their
subsistence and that of their families. The special circumstance established
by article 11 of the same code should be also considered in favor of the
accused, in view of the erroneous and quite general belief that it is legal to
punish, even to excess the thief who, in defiance of law and justice, while
refusing to work, devotes himself to depriving his neighbors of the fruits of
their arduous labors; these two circumstances are considered in the present
case as especially admissible, without any aggravating circumstance, and
they determine, according to article 81, rule 5, of the Penal Code, the
imposition of the penalty immediately inferior to that prescribed by the law,
and in its minimum degree, and therefore —
By virtue of the foregoing considerations, we are of the opinion that, the
judgment appealed from being reversed with respect to Gregorio Bundoc
only, the latter should be, and is hereby, sentenced to the penalty of six
years and one day of prisión mayor, to the accessories of article 61 of the
code, to indemnify the heirs of the deceased jointly or severally with his
codefendants, in the sum of P1,000, and to pay one-third the costs of both
instances. So ordered.
Arellano, C. J., Mapa, and Johnson, JJ., concur.
410
Separate Opinions
MORELAND, J., dissenting:
The defendants in this case were convicted of the crime of homicide in
causing the death of Guillermo Ribis, and sentenced to fourteen years eight
months and one day of reclusión temporal, accessories, indemnification,
and costs.
Gregorio Bundoc is the only one who appealed.
On the night of the 21st of February, 1909, Rafael Bumanglag, a resident of
the pueblo of San Nicolas, Province of Ilocos Norte, found missing from his
granary, situated at a place called Payas, barrio No. 16 of said pueblo,
4 baaresand 40 manojos of palay, and the inclosure within which
the palay was situated torn down and partly destroyed. The following
morning he discovered a portion of the missing palay in a field of sugar cane
about 100 meters from the granary from which it was taken. For the purpose
of discovering who was the author of the crime and of bringing him to
justice, he secured the assistance of Gregorio Bundoc, Antonio Ribao, and
Saturnino Tumamao, the first being his cousin and the others in his
neighbors and friends, to watch with him the succeeding night in the vicinity
of thepalay, acting upon the expectation that the robber would return to
secure it. Some time after dark of the night succeeding the robbery,
Bumanglag, and the other persons mentioned, gathered together in said
field of sugar cane, near to the palay in question, placing themselves so as
to surround it in a measure, and awaited the appearance of the malefactor.
At about 10 o'clock there came into the field the deceased, Guillermo Ribis,
who approached the palay, picked it up, and started to carry it away. At this
moment Bumanglag presented himself in front of Ribis, stopping his further
progress, whereupon Ribis attacked him viciously with a bolo and they
engaged in a hand-to-hand struggle. Bumanglag, upon finding that he was
likely to be killed by the robber because of his great strength and the fact
that he was armed with a bolo, called for assistance, whereupon his three
companions rushed forward and seeing the extremity in which Bumanglag
was, joined in the struggle for the purpose of his protection. Within a few
minutes Ribis fell to the earth mortally injured and soon expired.
The only proofs in the trial relating to the death are the statements and
testimony of the defendants themselves. Immediately after the death of
Ribis, they, acting voluntarily, went to the nearest justice of the peace and
stated what had occurred. Each one signed a statement of the facts
constituting the occurrence as he understood them. Later each one of
defendants testified on the trial.
Bundoc, in the written statement made by him before the justice of the
peace, said that at about 10 o'clock of the night in question he saw Ribis
enter the field, going toward the place where the palay was located, and a
little while afterwards Bumanglag called him and his companions to come to
his assistance because a man was attacking him and that thereupon he,
Bundoc and his companions, "went to the assistance of Bumanglag, who
was fighting with Ribis, and, in view of the fact that it appeared that
Bumanglag was not able to resist his adversary because he had a bolo and
Bumanglag had only a bamboo stick," he and his companions took part in
the fight solely to protect his cousin and that, during the struggle that
followed, the decedent was killed. He said further that he recognized the
deceased, Ribis, as a resident of San Nicolas, and that he was a person of
bad character and was known as the author of various robberies and
burglaries which had occurred in that vicinity.
The statements of the other defendants are substantially the same as that of
Bundoc. itc-alf
Upon the trial Bumanglag testified, relative to the acts of defendants from
which the death of Ribis resulted, that Ribis came into the field, arranged
the palay in handy form picked it up, and started to go away with it; that
thereupon Bumanglag told him to halt; that Ribis instantly dropped his
bundle to the ground and immediately attacked Bumanglag with a bolo,
striking at him several times but failing to hit him on account of stalks of
sugar cane which Bumanglag interposed between himself and his assailant;
that, while Ribis was trying to kill him with his bolo, he called to his
companions for help, at the same trying to defend himself with blows of his
bamboo stick; that his companions soon arrival, and, between the three,
they struck him several blows, from which he died immediately; that they
carried no weapons except bamboo sticks, while the deceased was armed
with a large bolo.
The statement of Bumanglag made upon the trial is somewhat different from
his statement made before the justice of the peace but is more in accord
with the statements of the other defendants in the case, both before the
justice of the peace upon the trial of the case. Bundoc testified that
Bumanglag called for help because he was being attacked by the robber,
who was armed with a bolo, and that he was likely to be killed at any instant,
and that he and his companions, desiring to defend Bumanglag from his
411
imminent peril, ran forward to his assistance, and that during the fight which
occurred, the deceased was killed.
These are the only proofs before us relative to the manner in which Ribis
met his death. The court below, however, refused to believe the story of
defendants because of certain alleged contradictory circumstances which
appear in the proofs. These circumstances, as presented by the court below
and here argued by the fiscal, are that (1) while the defendants claim in their
statements and testimony that the deceased attacked Bumanglag with his
bolo, nevertheless, when the body of the decedent was the nest day taken
possession of by the justice of the peace, the bolo was still in its sheath; and
(2) that while the defendants stated and testified that they were not armed
with any kind of weapons except bamboo sticks or clubs, still the testimony
of Barba, the sanitary inspector of that district, shows that some of the
wounds upon the deceased were made with sharp instruments. Upon these
two circumstances, impugning, as it is alleged they do, the evidence of the
defendants in their own behalf, the court below found the defendants guilty
of homicide.
The only evidence in relation to these two circumstances is that of the
justice of the peace and the sanitary inspector, who assert that when they
went to examine the body and take charge of it, the next day after the death,
they found the bolo in its sheath. It appears, however, that no one watched
the body during the interval running between the time when the death
occurred and when the body was first examined, and therefore no one
knows how it was handled or what was done with or to it. As to the other
point, namely, that the wounds were made with sharp instruments, it may be
said that the witness Barba, the sanitary inspector, who is the only one who
testified in relation to that matter, stated that the only two wounds that were
mortal were located, one in the right side of the head, caused by a sharp
instrument, the other a contusion at the base of the neck upon the left side,
not made with a sharp instrument. He does not say which one of the
wounds caused the death of the decedent, neither does he state the fact
upon which he bases his claim that the wounds were made with sharp
instruments. He is simply states his conclusions, without presenting the
facts from which such conclusions naturally spring. It is well known,
however, that a wound, smooth edged and clean cut, and simulating with
remarkable closeness a wound made with a sharp cutting instrument, may
be and frequently is produced by a wooden instrument or club, particularly
where, as in this case, said instrument or club is extremely hard and has a
sharp edge. The witness Barba was not a physician or surgeon and had had
little experience with wounds. His judgment was scarcely better than that of
the average man. In no sense was he qualified as an expert. Besides, and
this is very important, the only wounds found upon the person of
deceased were about the head, neck, and face. No wound was found on
any other part of the person. Does this look like the use of knives or bolos
by the defendants? If they had been using such weapons it is almost certain
that the fatal wound would have been found in the body and not the head;
or, if in the head, the wound made would have been far more extensive and
ghastly than any of those found.
It appears from the undisputed testimony (if we except the two
circumstances above referred to ) that the decedent was a man of bad
reputation; that he was a thief, a robber, and a convicted criminal, having
served at least one term in prison for robbery; that he was known in all that
country as a leader of criminal bands and as an all-around desperado; that
he was a man of exceptionally large stature and of unusual strength; that at
the time of his attack upon Rafael Bumanglag he was armed with a bolo;
that on the evening before his death he had robbed the granary of
Bumanglag, taking a part of the property which he had stolen away with him
at the time and leaving the other portion, which he was unable to carry, in a
place where it would be easily accessible when he desired later to remove
it; that on the night of the event he had returned to carry away the balance
of the property which he had stolen the night before; that while in the act of
taking it he was surprised and confronted by the owner thereof; that he
immediately assailed said owner viciously with his bolo, and to pressed him
that, for the protection of his life, he called upon his friends for assistance;
that his companions, on arriving, saw that he was likely to be killed at any
instant and they, endeavoring to save his life, attacked the decedent.
It is not known who among the defendants killed the decedent or what blow
caused his death. All that is known is that in the struggle which occurred,
resulting from the efforts of three of the defendants to save the life of the
fourth, the decedent met his death.
It nowhere appears, except from the fact of death itself, that the defendants
sought or intended to kill the decedent. Their sole purpose appears from the
evidence to have been accomplished as well by disabling as by killing him;
and it must not be forgotten in this connection that the effect produced by
the use of their bamboo sticks was not that which is ordinarily produced.
This consideration was regarded by this court as having much importance in
the case of the United States vs. Sosa (4 Phil Rep., 104). This court has,
moreover, held that a piece of bamboo (una simple caña partida), exactly
what was used by defendants in the case at bar, was a weapon insufficient
ordinarily to put the life of a person attacked in imminent peril. (U. S. vs. De
Castro, 2 Phil. Rep., 67; U. S. vs. Mack, 8 Phil. Rep., 701).
I am convinced that there is a strong doubt of the criminal responsibility of
the defendants, particularly of the appellant. Article 8 of the Penal Code
reads in part as follows:
412
The following are not delinquent and are, therefore, exempt from
criminal liability:
5. He who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural, or adopted brothers
or sisters, or of his relatives by affinity in the same degrees and
those by consanguinity within the fourth civil degree, provided the
first and second circumstances mentioned in the foregoing number
are attendant, and provided that in case the party attacked first gave
provocation, the defendant took no part therein.
6. He who acts in defense of the person or rights of a stranger,
provided the first and second circumstances mentioned in No. 4 are
attended and that the defender is not actuated by revenge,
resentment, or other illegal motive.
Subdivision 4 is as follows:
4. He who acts in defense of his person or rights, provided there are
the following attendant circumstances:
(1) Illegal aggression. lawphi 1.net
(2) Reasonable necessity of the means employed to prevent or repel
it.
(3) Lack of sufficient provocation on the part of the person defending
himself.
That there was an unlawful aggression seems to me to be undisputed under
the evidence. The great preponderance of the testimony, in fact the
undisputed evidence, is to that effect. Every witness who touched the
subject testified positively that the assault upon Bumanglag was made with
a bolo . It is admitted that the decedent had one at the time of the assault.
Nevertheless the fiscal contends that the assault was not made with a bolo
and bases that contention upon the single fact, before adverted to, that,
many hours after the assault, the bolo was found in its sheath on the dead
man's body. The probative effect of that fact is founded purely in an
inference which necessarily presupposes that the bolo had not been
replaced in its sheath by anyone after the death of Ribis, his body having
been left unwatched, as before stated, for a considerable period of time. It
seems to me, however, that that inference is met and sufficiently overcome
by the manifest and perfect unreasonableness of the assumption, which
must necessarily arise from that inference, that a man f the character f the
decedent, having been caught red-handed in the commission of a robbery
by the owner of the property against which the felony had been and was
being committed, and that owner armed with a club, would attack such
owner with his naked hands when he carried at his side a formidable
weapon with which to defend himself in precisely such an emergency. It is
wholly unreasonable, if not positively unbelievable, that the decedent, under
all the circumstances of this case, did not draw his bolo. That he did
unsheath it and did attack Bumanglag therewith is the sworn statement of
every witness who testified on that subject. This proof, taken in connection
with the unreasonableness of the claim that the decedent, caught red-
handed in felony, attacked with his bare hands a man armed with a club, the
man against whose property he was in the very act of perpetrating a felony,
and permitted himself to be beaten to death, when he carried at his side a
formidable and effective weapon of aggression as well as defense, can not
be overcome by a mere inference deduced from the circumstance that the
bolo, many hours after the event, was found in its sheath. The entire
evidence, fairly considered, reasonably establishes it seems to me, not only
an unlawful but a dangerous aggression. (Supreme court of Spain, 17
November, 1897; 6 July, 1898; 16 March, 1892; 11 December, 1896; 26
January, 1897; 11 December, 1896; 6 April, 1904; 27 June, 1894; 30
January, 1904; 16 February, 1905; 10 July, 1902; 27 June, 1903; 28
February, 1906; 17 March, 1888; 29 May, 1888; 13 February, 1890; 20
January, 1894; 24 October, 1895; 27 January, 1896; 11 December, 1896;
26 January, 1897; 30 September, 1897; 10 February, 1898; 6 July, 1898; 21
December, 1898; 24 January, 1899; 29 September, 1900; 12 January,
1901; 21 April, 1902; 20 December, 1902; 4 February, 1903; 11 July, 1903;
11 July, 1904; 22 March, 1905; 8 July, 1905.)
In the case of Stoneham vs. Commonwealth (86 Va., 523, 525, 526), where
the defendant was being followed up by deceased who was wholly unarmed
and without any demonstration of violence except raising his fist, and the
defendant shot and killed him, the court said:
The accused was closely pressed by an attacking man, who was his
superior in strength, and his situation was one which justified his fear
of grievous bodily harm; and, if the jury had found the facts as
certified by the court, they should have found the homicide to be
excusable self-defense under all the circumstances of this case.
(Parishe's case, 81 Va., 1.)
Moreover it is admitted that the defendant, Bumanglag, was upon his own
land and was, therefore, defending his habitation against a violent and
wrongful invasion when the assault upon him was made in the manner
proved.
413
A person may repel force by force in defense of his habitation or
property, as well as in defense of his person, against one who
manifestly intends and endeavors by violence or surprise to commit
a known felony upon either, and, if need be, may kill his adversary.
(25 Am. & Eng. Ency. of L., 275.)
In the case of United States vs. Brello (9 Phil. Rep., 424), the court said (p.
425):
The evidence of the defendant and his witnesses was to the effect
that at 10 o'clock at night Candelario came to the house of the
defendant, knocked at the door, and instead upon the defendant
coming out saying that if he did not he would burn the house. The
defendant refused to go out and thereupon Candelario broke the
door down, came in and attacked the defendant with a cane,
throwing him to the ground two or three times. He defended himself
as well as he could and finally seized a bolo and struck Candelario
in the stomach. Immediately after the affair the defendant presented
himself to the authorities of the town, stating that had happened. It
does not appear that Candelario had any other weapon than a cane.
These facts to our mind constitute a complete defense. Candelario
lawphi 1.net
committed a crime in entering the house as he did, the defendant
was justified in protecting himself with such weapons as were at his
hand, and if from that defense the death of the aggressor resulted,
that result must be attributed to his own wrongful act and can not be
charged to the defendant.
(The italics do not appear in the original.)
If the defendant in the above case was in danger of death or of great bodily
harm, and that danger was imminent, and if the means employed by him to
repel the assault were reasonably necessary to attain that result, then, how
much more perfectly were these conditions present in the case at bar! If the
defendant in the case cited was entitled legally to be relieved from all
criminal liability, upon what subtle distinction, and, above all, upon what
principles of justice, shall we found a judgment declaring guilty the appellant
at bar?
While the premises upon which the assault occurred were not, strictly
speaking, the habitation of the defendant, Bumanglag, still as matter of law
no substantial distinction is made between habitation and premises. The
Supreme Court of the United States has held directly (Beard vs. United
States, 158 U. S., 550) that for the purpose of self-defense there is no
difference between one's habitation and his premises. In that case the court
said, in part, Mr. Justice Harlan writing (p. 559):
But the court below committed an error of a more serious character
when it told the jury, as in effect it did by different forms of
expression, that if the accused could have saved his own life and
avoided taking the life of Will Jones by retreating from and getting
out of the way of the latter as he advanced upon him, the law made
it his duty to do so; and if he did not, when it was in his power to do
so without putting his own life or body in imminent peril, he was
guilty of manslaughter. The court seemed to think if the deceased
had advanced upon the accused while the latter was in his dwelling
house and under such circumstances as indicated the intention of
the former to take life or inflict great bodily injury, and if, without
retreating, the accused had taken the life of his assailant, having at
the time reasonable grounds to believe, and in good faith believing,
that his own life would be taken or great bodily harm done him
unless he killed the accused, the case would have been one of
justifiable homicide. To that proposition we give our entire assent.
But we can not agree that the accused was under any greater
obligation, when on his own premises, near his dwelling house, to
retreat or run away from his assailant, than he would have been if
attacked within his dwelling house. The accused being where he had
a right to be, on his own premises, constituting a part of his
residence and home, at the time the deceased approached him in a
threatening manner, and not having by language or by conduct
provoked the deceased to assault him, the question for jury was
whether, without fleeing from his adversary, he had, at the moment
he struck the deceased, reasonable grounds to believe, and in good
faith believed, that he could not save his life or protect himself from
great bodily harm except by doing what he did, namely, strike the
deceased with his gun, and thus prevent his further advance upon
him. Even if the jury had been prepared to answer this question in
the affirmative — and if it had been so answered the defendant
should have been acquitted — they were instructed that the accused
could not properly acquitted on the ground of self-defense if they
believed that, by retreating from his adversary, by "getting out of the
way," he could have avoided taking life. We can not give our assent
to this doctrine. (Erwin vs. State, 29 Ohio St., 186, 193, 199
Runyan vs. State, 57 Ind., 80, 84; Bishop's New Criminal Law, vol. 1
par. 850; 2 Wharton's Criminal Law, par. 1019, 7th ed.;
Gallargher vs. State, 3 Minn., 270; Pond vs. People, 8 Mich., 150,
177; State vs. Dixon, 75 N.C., 275, 295; State vs. Sherman, 16 R. I.,
631; Fields vs. State, 32 N. E. Rep., 780;
Eversole vs.Commonwealth, 26 S. W. Rep. 816; Haynes vs. State,
17 Ga., 465, 483; Long vs. State, 52 Miss., 23, 35;
414
Tweedy vs. State, 5 Ia., 433; Baker vs. Commonwealth, 19 S. W.
Rep., 975; Tingle vs. Commonwealth, 11 S. W., 812; 3 Rice's Ev.,
par. 360.)
In the case of State vs. Cushing (14 Wash., 530), the court lays down the
proposition that a defendant while on his own premises outside of his
dwelling house, was there he had a right to be, and if the deceased
advanced upon him in a threatening manner and the defendant at the time
had reasonable grounds to believe, and in good faith did believe, that the
deceased intended to take his life or do him great bodily harm, the
defendant was not obliged to retreat nor to consider whether he could safely
retreat, but was entitled to stand his ground and meet any attack made upon
him in such way and with such force as, under all the circumstances, he at
the moment honestly believed and had reasonable to believe was
necessary to save his own life or protect himself from great bodily harm.
It is also admitted that the defendant, Bumanglag, was defending his
property from one who by surprise and violence was endeavoring to commit
a felony against it. Under such circumstances, if necessary to prevent the
felony, he could lawfully kill the person attempting it. (See 25 Am. & Ency. of
Law, 275, above quoted; U. S. vs.Wiltberger, 28 Fed. Cas., 727, 729;
Commonwealth vs. Pipes, 158 Pa. St., 25, 30;
Stoneham vs. Commonwealth, 86 Va., 523, 525; Ayers vs. State, 60 Miss.,
709, 714; Crawford vs. State, 35 Am. St. Rep., 242; People vs. Stone, 82
Cal., 36, 37, 38.)
It must not be forgotten that the undisputed evidence in the case at bar
shows that Bumanglag, when attacked by deceased, although on his own
premises and defending his own property, did all he could to avoid an
encounter, retreating as far as safety permitted, and interposing between
himself and his assailant stalks of sugar cane to impede the blows aimed at
him, at the same time warding off the bolo thrusts with his bamboo stick.
It appears, therefore, that there was not only an unlawful against the
defendant, Bumanglag, personally, but also that there was a wrongful
invasion of his habitation and an attempt to commit a felony against his
property.
It fairly appearing that there was an unlawful aggression, it is evident that
the danger to Bumanglag was imminent and certain. It is difficult to conceive
how, with a weapon in the hands of decedent no more deadly than a bolo,
the defendant could have been in danger more imminent and certain. A
notorious desperado (Hood vs. State, 27 So. Rep., 643) had been caught
red-handed in a felony. He was large, powerful
(Stoneham vs. Commonwealth, 86 Va., 523, 525), and vicious. It was dark.
So far as he knew, he was alone with his discoverer. He carried a fighting
bolo. His discoverer had only a bamboo stick. A long term in State prison
stared him in the face. There was one way to avoid it and only one — to kill
his discoverer. If Bumanglag escaped, his arrest and conviction would
surely follow. Can any one doubt, under these circumstances, what such a
man do? Bumanglag, as he confronted and recognized the man with whom
he had to deal, realized instantly the imminence and certainty of his danger;
and, assault, Bumanglag knew that, without assistance from appreciated
and realized by his companions when they heard his cries for help. They
knew Ribis, his criminal record, his desperate character, his unusual
strength. (People vs. Webster, 139 N. Y. 73; State vs. Martin, 9 Ohio Dec.,
778; State vs. Broussard, 39 La. Ann., 671; State vs.Bowles, 146 Mo., 6;
State vs. Knapp, 45 N. H., 148.) They knew he was armed and their
companion was not. They knew it lay with them whether Bumanglag was
killed or not. From their viewpoint was not their participation in the struggle
fully justified?
It has been suggested that the means used by the defendants were not
reasonably necessary for the protection of their companion, and that, being
so many against one, they should not have struck the decedent with their
clubs, but rather, should have seized him with their hands, disarmed him
and made him prisoner. Among all the reasons assigned by the prosecution
to sustain the conviction in this case this, to my mind, is the only one that in
anywise appeals to reason or judgment. In fact it is the only ground
presented by the Government upon which such conviction can be sustained,
if it can be sustained at all. Still, giving that contention all of the weight which
it justly carries, I yet am entirely lacking in confidence that it is sound under
the circumstances of this case and established law applicable thereto, and
is, I believe, fully and fairly met by the substance of the following
observations:
I remember, on occasion, seeing, in the public square in my native town, a
large and powerful American attacked by a diminutive Italian armed with a
stiletto. I remember seeing the American running backward, leaping and
dodging frantically to avoid the vicious thrusts aimed by the pursuing Italian
at a vital part. I remember also that at least a half dozen other Americans
were at the rear of the Italian, closely following him and yelling to him at the
top of their voices to desist, but not one daring to grapple with him to save
the person attacked; and it was only when another American, having rushed
into the yard of the hotel and secured a stick of wood, returned to the scene
and gave the Italian from behind a heavy blow over the head with the club,
stretching him senseless, that the assault was terminated.
The question naturally arises, Why did not some one seize the Italian? The
answer is, for the simple reason that a furious and vicious man armed with a
dagger and skilled in its use is an individual dangerous to the very extreme,
415
and the man who seizes him with his naked hands runs the chances of his
life. This is known to all. But, comes the reply. Why not all seize him at once
and thus avoid the danger to one? The suggestion is simple but the
execution is most difficult — in most cases little short of impossible. On such
an occasion the time within which action must be secured is of the very
shortest. Everything is excitement and confusion. Everybody yells and
dreads, but no body thinks. If there happens to be one who does think, he
has no companions in the process. There is, and in the vast majority of
cases there can be, no concert of action. The aid rendered in such cases is
almost invariably individual.
In the case at bar, as in the illustration, there was a fierce struggle between
two men. The one was defending his own property on his own premises and
performing a service to society by doing his part to render amenable to the
law a desperate and reckless criminal. The other was an invader, a
despoiler, wholly unrestrained by conscience or deterred by law — an
inveterate enemy of society and his kind. He was armed with a dangerous
weapon. He was desperate, vicious, criminal, and powerful, surprised in an
act of felony. It was dark. He was attempting to take the life of his opponent.
It was unknown, and unknowable, when, in that struggle, the fatal blow
would be delivered. It might come at any instant. Ought it fairly to be
required as a matter of law that the defendants, rushing forward to assist
their companion, should, under these circumstances, attempt the seizure of
this powerful and desperate man with their naked hands, in the dark, without
the ability, be reason of the conditions, to see the weapon and the manner
in which it was being used? Would not such a requirement put them in great
danger of being themselves seriously wounded, even if it did not add to the
danger of their companion? It is the unquestioned law, and it be rigorously
enforced, that life can not be taken except in necessity, but it is as
unquestioned that he who in danger of his life from an assault, as well as
the one who comes to his assistance, is not required to do anything which
will increase his danger or enhance the opportunity of the aggressor to
accomplish his end. (U. S. vs. Mack, 8 Phil. Rep., 701; U. S. vs. Paras, 9
Phil. Rep., 367; supreme court of Spain, 25 September, 1875; U.
S. vs. Herbert, 26 Fed. Cas., No. 15354a; State vs. Robertson, 50 La. Ann.,
92; 25 Am. & Eng. Ency. of L., 273.) Moreover if the life of Bumanglag was
to be saved at all, the aggressor must be dealt with quickly and summarily.
Events were unrolling rapidly. There was a life in danger, every instant
becoming more imminent. There was no time to think; no time for deliberate,
careful judgment and nice precision; no opportunity to devise means or lay
plans. Under such circumstances the law does not hold men to the
standards of careful thought and calm judgment. (Allen vs. U. S., 150 U. S.,
551; State vs. West, 45 La. Ann., 14, 23; Brownell vs. People, 38 Mich.,
732; supreme court of Spain, 7 December, 1886; Viada, Penal Code, vol. 1,
157-160.)
In order to make perfectly available the defense that they were rightfully
defending Bumanglag, and that the means they employed were reasonably
necessary, it is not essential that there should be absolute and positive
danger to the person whose protection is attempted. If there is a
wellgrounded and reasonable belief that the person is in imminent danger of
death or great bodily harm, an attempt to defend him by means which
appear reasonably necessary is justifiable. The reasonable appearance is
the important thing. (Shorter vs. People, 2 N. Y., 193, 197; Brown vs. Com.,
86 Va., 466; Logue vs. Com., 38 Pa. St., 265; Murray vs. Com., 79 Pa. St.,
311, 317; Pond vs.People, 8 Mich., 149, 150; Hurd vs. People, 25 Mich.,
404, 405; People vs. Miles, 55 Cal., 207; People vs. Herbert, 61 Cal., 544;
Campbell vs. People, 16 III., 17; Enlow vs. State, 154 Ind., 664;
Hubbard vs. State, 37 Fla., 156; Alvarez vs. State, 37 Fla., 156;
Oliver vs. State, 17 Ala., 587; Stewart vs. State, 1 Ohio St., 66, 71; 25 Am. &
Eng. Ency. of Law, 262, 263; U. S. vs. Paras, 9 Phil. Rep., 367.)
In deciding this case we must, therefore, under the law, put ourselves in the
position of the defendants at the time of the event. It is from their point of
view that they are to be judged.
If they honestly believed, and had apparently reasonable grounds for that
belief, that the life of their companion was in imminent danger or that he was
likely to suffer great bodily harm, and that the means which they used to
protect him were reasonably necessary to that end, they can not be
convicted. (Viada, Penal Code, vol. 1, 98; People vs.Bruggy, 93 Cal., 476;
Harris vs. State, 96 Ala., 24; U. S. vs. Outerbridge, 5 Sawy, (U. S. Circ.),
620.) I am convinced that the facts and circumstances of this case were
sufficient to induce and support the belief in the minds of the defendants that
their companion's life was in imminent danger and that the means which
they employed were reasonably necessary to secure his protection.
(Supreme court of Spain, 2 January, 1873; 5 April, 1873; 30 April, 1874; 31
May, 1879; 17 March, 1885; 26 November, 1886; 26 November, 1886; 2
March, 1888; 4 April, 1889; 5 July, 1890; 6 December, 1890; 30 December,
1890; 11 February, 1896; 9 December, 1896; 24 May, 1898; 28 May, 1889;
10 December, 1898; 15 November, 1899; 9 January, 1900; 1 June, 1901;
16 April, 1902; 3 January, 1903; 14 January, 1903; 20 March, 1903; July,
1909; 26 October, 1904; 17 November, 1904; 20 October, 1904; 29
October, 1904; 8 March, 1905.) In other words, it would seem under all the
circumstances, that it can not fairly be charged that the defendants,
particularly the appellant, acted otherwise than as reasonable men would
have acted in the same situation; and after all this is the real test.
(Allen vs. U. S., 150 U. S., 551; Hickory vs. U. S., 151 U. S., 303;
Christian vs. State, 96 Ala., 89; People vs. Hurley, 8 Cal., 390;
Gainey vs. People, 97 III., 270; State vs. West, 45 La. Ann., 14.)
416
While most of the authorities above cited refer to self-defense only, the
principles they enunciate are fully applicable to the case at bar, because,
generally speaking, what one may do in his own defense another may do for
him. (25 Am. & Ency. of Law, 274, and cases there cited.)
Under the circumstances of this case I can not feel that the fair and impartial
administration of justice requires that we should refine doctrines, draw
uncertain distinctions, invoke doubtful presumptions, employ fine analyses,
or seize upon equivocal circumstances for the purpose of the convicting the
appellant of homicide, of for the purpose of establishing a doctrine which
may have as a result that a criminal, invading his neighbor's premises
feloniously and in the nighttime for the purpose of robbery, and surprised
and taken in his wanton act, may feel that he is in any way or to degree
privileged under the law when, in attempting to make his outrage against
man and society secure from detention and punishment, he seeks by every
means in his power to destroy the life of his discover. Every man ought to
lend his hand in assisting society to apprehend and punish offenders
against its institutions and laws, and while the wanton or illegal destruction
of human life, under the guise of such assistance, ought to be promptly,
vigorously, and unrelentingly punished, still, where such person, acting in
the honest belief that he is saving the life of one who is viciously attacked by
a criminal whose recognition or apprehension is attempted, in the defense of
such person, causes the death of the criminal, the court ought not to be
drawn from its usual, even and steady course in order to provide a
punishment. (Supreme court of Spain, 5 February, 1887; Viada, Penal
Code, vol. 1, 160, 161.)
This court has gone very far in the direction of liberality in lying down the
principles governing the defense of self-defense and the means that may be
legally employed to make that defense effective — very much further,
indeed, than it is necessary to go absolved the appellant in the case at bar.
In the case of United States vs. Patala (2 Phil. Rep., 752), the court says,
page 756:
It appears from the testimony of the defendant that at the time of the
occurrence he was cleaning fish on board the steamship Compañía
de Filipinas; that without any provocation on his part the deceased,
who was the cock of the boat, believing that some of the fish was
missing, slapped him and kicked him; that no being satisfied with
this, when the defendant started to run away from him, the deceased
pursued him and attacked him with a knife; that the defendant,
taking advantage of some favorable chance during the struggle,
succeeded in wresting the knife from the deceased and inflicted
upon him a wound in the left side, from the result of which he died a
few hours later.
 . . . The aggression on the part of the deceased was in every respect
unjustified, and the defendant had a perfect right to repel the attack
in the most adequate from within his power under the critical
circumstances of a sudden assault.
. . . He had reason to believe that he was placed in the alternative of
killing or being killed when he was being attacked and pursued with
a deadly weapon. This was the only weapon used during the
struggle and it necessary had to be either in his possession or in the
hands of the deceased. If through a fortunate accident he came into
possession of the knife, he could have lost control of it through a
similar accident and then found himself at the mercy of his assailant.
Therefore the act of the defendant rendering his assailant powerless
as well as he could under the critical circumstances of the moment,
and repelling his aggression, constitute, in our opinion, a true case
of self-defense, which exempts the defendant from any criminal
liability under paragraph 4 of articles 8 of the Penal Code.
The same doctrine is laid down in the similar case of the United States vs.
Salandanan (1 Phil. Rep., 478). (See also U. S., vs. Brello, 9 Phil. Rep.,
424; U. S. vs. Reyes, 1 Phil. Rep., 517; U. S. vs. Bailon, 9 Phil. Rep., 161.)
There is neither claim nor evidence that any of the defendants were
actuated in their defense of Bumanglag by revenge, resentment, or other
illegal motive, and from this point of view the case requires no discussion.
As to the question of reasonable doubt.
In discussing the questions of burden of proof and reasonable doubt
in cases involving self-defense, the courts have stated various
confusing and apparently contradictory propositions, but the general
rule deducible from the authorities seems to be that when the
prosecution has made a prima facie case against the accused, it is
for him to introduce evidence showing self-defense, if he sets up the
plea; but that if upon the whole testimony, both on the part of the
State and the accused, the jury has a reasonable doubt whether he
acted in self-defense or not, he is entitled to the benefit of the doubt
and to an acquittal. (25 Am. & Eng. Ency. of Law, 283.)
The doctrine above stated is fully supported by the authorities.
In the case of Lillinienthal vs. United States (97 U. S., 237, 266), the court
said:
417
In criminal cases the true rule is that the burden of proof never shifts;
that, in all cases, before a conviction can be had, the jury must be
satisfied from the evidence, beyond a reasonable doubt, of the
affirmative of the issue presented in the accusation, that the
defendant is guilty in the manner and form as charged in the
indictment. . . . Where the matter of excuse or justification of the
offense charged grows out of the original transaction, the defense is
not driven to the necessity of establishing the matter in excuse or
justification by a preponderance of the evidence, and much less
beyond a reasonable doubt. If, upon a consideration of all the
evidence, there be a reasonable doubt of guilt of the party, the jury
are to give him the benefit of such doubt.
To the same effect are Tweedy vs. State (5 Iowa, 433); Wharton's Criminal
Evidence, p. 236; Tiffany vs.Commonwealth (121 Pa. St., 165);
People vs. Coughin (65 Mich., 704).
The section casts upon the defendant that burden of proving
circumstances of mitigation, or that justify or excuse the commission
of the homicide. This does not mean that he must prove such
circumstances by a preponderance of the evidence, but that the
presumption that the killing was felonious arises from the mere proof
by the prosecution of the homicide, and the burden of proving
circumstances of mitigation, etc., is thereby cast upon him. He is
only bound under this rule to produce such evidence as will create in
the minds of the jury a reasonable doubt of his guilt of the offense
charged." (People vs. Flanagan, 60 Cal., 3; 44 Am. Rep., 52;
People vs. Smith, 59 Cal., 607.) "It can make no difference whether
this reasonable doubt is the result of evidence on the part of the
defendant tending show circumstances of mitigation, or that justify or
excuse the killing, or from other evidence coming from him or the
prosecution. The well-settled rule that a defendant shall not be
convicted unless the evidence proves his guilt beyond a reasonable
doubt applies to the whole and every material part of the case, no
matter whether it is as to the act of killing, or the reason for a
manner of its commission. (People vs. Bushton, 80 Cal., 160, 164;
Alexander vs. People, 96 III., 96; People vs. Riodan, 117 N. Y., 71.)
Reading the evidence in this case in the light of reason and of the principles
enunciated by the courts, I can not but feel that, under all the circumstances,
there is a strong doubt of appellant's legal responsibility for the crime
charged. In my opinion, therefore, the judgment of the court below should be
reversed and the appellant acquitted.
Carson, J., concurs.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-33466-67 April 20, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South
Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for murder
which, after a joint trial, resulted in the conviction of the accused in a
decision rendered on September 8, 1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by treachery
with the aggravating circumstance of evident premeditation
offset by the mitigating circumstance of voluntary surrender.
The proper penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond
reasonable doubt of the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the
deceased Davis Q. Fleischer in the sum of P 12,000.00 as
compensatory damages, P 10,000.00 as moral damages, P
2,000.00 as attorney's fees, the offended party having been
represented by a private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the
deceased Flaviano Rubia in the sum of P12,000.00 as
418
compensatory damages, P10,000.00 as moral damages,
P2,000.00 as attorney's fees, the offended party having
been represent by a private prosecutor, and to pay the costs
(p. 48, rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano
Juan, Jesus Verano and Cesar Ibanez together with the two
deceased Davis Fleischer and Flaviano Rubia, were fencing
the land of George Fleischer, father of deceased Davis
Fleischer. The place was in the boundary of the highway and
the hacienda owned by George Fleischer. This is located in
the municipality of Maitum, South Cotabato. At the place of
the fencing is the house and rice drier of appellant Mamerto
Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant
was taking his rest, but when he heard that the walls of his
house were being chiselled, he arose and there he saw the
fencing going on. If the fencing would go on, appellant would
be prevented from getting into his house and the bodega of
his ricemill. So he addressed the group, saying 'Pare, if
possible you stop destroying my house and if possible we
will talk it over what is good,' addressing the deceased
Rubia, who is appellant's compadre. The deceased
Fleischer, however, answered: 'No, gademit, proceed, go
ahead.' Appellant apparently lost his equilibrium and he got
his gun and shot Fleischer, hitting him. As Fleischer fell
down, Rubia ran towards the jeep, and knowing there is a
gun on the jeep, appellant fired at Rubia, likewise hitting him
(pp. 127-133, t.s.n., Defense transcript). Both Fleischer and
Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza
I, pp. 8-9, Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn out
legal battle between the Fleischer and Co., Inc. of which deceased Fleischer
was the secretary-treasurer and deceased Rubia the assistant manager, on
the one hand, and the land settlers of Cotabato, among whom was
appellant.
From the available records of the related cases which had been brought to
the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this
Court on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice
of the following antecedent facts:
Appellant was among those persons from northern and central Luzon who
went to Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba
and now a separate municipality of South Cotabato. He established his
residence therein, built his house, cultivated the area, and was among those
who petitioned then President Manuel L. Quezon to order the subdivision of
the defunct Celebes Plantation and nearby Kalaong Plantation totalling
about 2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer,
an American landowner in Negros Oriental, filed sales application No. 21983
on June 3, 1937 over the same area formerly leased and later abandoned
by Celebes Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the
actual survey in 1941 but the survey report was not submitted until 1946
because of the outbreak of the second world war. According to the survey,
only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba,
were set aside for Sales Application No. 21983, while the rest were
subdivided into sublots of 5 to 6 hectares each to be distributed among the
settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and
Company was declared open for disposition, appraised and advertised for
public auction. At the public auction held in Manila on August 14, 1948,
Fleischer and Company was the only bidder for P6,000.00. But because of
protests from the settlers the corresponding award in its favor was held in
abeyance, while an investigator was sent by the Director of Lands to
Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came back after
ten days with an amicable settlement signed by the representative of the
settlers. This amicable settlement was later repudiated by the settlers, but
the Director of Lands, acting upon the report of Atty. Gozon, approved the
same and ordered the formal award of the land in question to Fleischer and
Company. The settlers appealed to the Secretary of Agriculture and Natural
Resources, who, however, affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First
Instance of Cotabato which then consisted only of one sala, for the purpose
of annulling the order of the Secretary of Agriculture and Natural Resources
which affirmed the order of the Director of Lands awarding the contested
land to the company. The settlers as plaintiffs, lost that case in view of the
amicable settlement which they had repudiated as resulting from threats and
intimidation, deceit, misrepresentation and fraudulent machination on the
part of the company. They appealed to the Court of Appeals (CA-G.R. No.
28858-R) which likewise affirmed on August 16, 1965 the decision of the
Court of First Instance in favor of the company.
419
This resulted in the ouster of the settlers by an order of the Court of First
Instance dated September 24, 1966, from the land which they had been
occupying for about 30 years. Among those ejected was the appellant who,
to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of
around P20,000.00, and transferred to his other house which he built in
1962 or 1963 near the highway. The second house is not far from the site of
the dismantled house. Its ground floor has a store operated by Mrs. June
Talens who was renting a portion thereof. He also transferred his store from
his former residence to the house near the highway. Aside from the store,
he also had a rice mill located about 15 meters east of the house and a
concrete pavement between the rice mill and the house, which is used for
drying grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf
Jose V. Gamboa and other leaders filed Civil Case No. 755 in the Court of
First Instance of Cotabato, Branch I. to obtain an injunction or annulment of
the order of award with prayer for preliminary injunction. During the
pendency of this case, appellant on February 21, 1967 entered into a
contract of lease with the company whereby he agreed to lease an area of
approximately 100 to 140 square meters of Lot No. 38 from the company
(Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00
monthly. According to him, he signed the contract although the ownership of
the land was still uncertain, in order to avoid trouble, until the question of
ownership could be decided. He never paid the agreed rental, although he
alleges that the milling job they did for Rubia was considered payment. On
June 25, 1968, deceased Fleischer wrote him a letter with the following
tenor:
You have not paid six months rental to Fleischers & Co., Inc.
for that portion of land in which your house and ricemill are
located as per agreement executed on February 21, 1967.
You have not paid as as even after repeated attempts of
collection made by Mr. Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the
agreement, I have no alternative but to terminate our
agreement on this date.
I am giving you six months to remove your house, ricemill,
bodega, and water pitcher pumps from the land of Fleischers
& Co., Inc. This six- month period shall expire on December
31, 1966.
 In the event the above constructions have not been removed
within the six- month period, the company shall cause their
immediate demolition (Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers,
commenced fencing Lot 38 by putting bamboo posts along the property line
parallel to the highway. Some posts were planted right on the concrete drier
of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n.,
Vol. 2), with the last post just adjacent to appellant's house (p. 231,
t.s.n., supra). The fence, when finished, would have the effect of shutting off
the accessibility to appellant's house and rice mill from the highway, since
the door of the same opens to the Fleischers' side. The fencing continued
on that fateful day of August 22, 1968, with the installation of four strands of
barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after
working on his farm all morning, was awakened by some noise as if the wall
of his house was being chiselled. Getting up and looking out of the window,
he found that one of the laborers of Fleischer was indeed chiselling the wall
of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia
was nailing the barbed wire and deceased Fleischer was commanding his
laborers. The jeep used by the deceased was parked on the highway. The
rest of the incident is narrated in the People's Brief as above-quoted.
Appellant surrendered to the police thereafter, bringing with him shotgun No.
1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the
following errors:
First Assignment of Error: That the lower court erred in
convicting defendant-appellant despite the fact that he acted
in defense of his person; and
Second Assignment of Error: That the court a quo also erred
in convicting defendant-appellant although he acted in
defense of his rights (p. 20 of Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant
admitted having shot them from the window of his house with the shotgun
which he surrendered to the police authorities. He claims, however, that he
did so in defense of his person and of his rights, and therefore he should be
exempt from criminal liability.
420
Defense of one's person or rights is treated as a justifying circumstance
under Art. 11, par. 1 of the Revised Penal Code, but in order for it to be
appreciated, the following requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself (Art. 11, par. 1, Revised Penal Code, as
amended).
The aggression referred to by appellant is the angry utterance by deceased
Fleischer of the following words: "Hindi, sigue, gademit, avante", in answer
to his request addressed to his compadre, the deceased Rubia, when he
said, "Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti"
(pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been
awakened to see the wall of his house being chiselled. The verbal exchange
took place while the two deceased were on the ground doing the fencing
and the appellant was up in his house looking out of his window (pp. 225-
227, supra). According to appellant, Fleischer's remarks caused this
reaction in him: "As if, I lost my senses and unknowingly I took the gun on
the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot
Mr. Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant
testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and
upon hearing the shot, Mr. Rubia looked at Mr. Fleischer and
when Mr. Fleischer fell down, Mr. Rubia ran towards the jeep
and knowing that there was a firearm in the jeep and thinking
that if he will take that firearm he will kill me, I shot at him (p.
132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by the
prosecution. They claim, however, that the deceased were in lawful exercise
of their rights of ownership over the land in question, when they did the
fencing that sealed off appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the
evidence reveals that five persons, consisting of the deceased and their
three laborers, were doing the fencing and chiselling of the walls of
appellant's house. The fence they were putting up was made of bamboo
posts to which were being nailed strands of barbed wire in several layers.
Obviously, they were using tools which could be lethal weapons, such as
nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other
necessary gadgets. Besides, it was not disputed that the jeep which they
used in going to the place was parked just a few steps away, and in it there
was a gun leaning near the steering wheel. When the appellant woke up to
the sound of the chiselling on his walls, his first reaction was to look out of
the window. Then he saw the damage being done to his house,
compounded by the fact that his house and rice mill will be shut off from the
highway by the fence once it is finished. He therefore appealed to
his compadre, the deceased Rubia, to stop what they were doing and to talk
things over with him. But deceased Fleischer answered angrily with
'gademit' and directed his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of
the fencing would have resulted in the further chiselling of the walls of
appellant's house as well as the closure of the access to and from his house
and rice mill-which were not only imminent but were actually in progress.
There is no question, therefore, that there was aggression on the part of the
victims: Fleischer was ordering, and Rubia was actually participating in the
fencing. This was indeed aggression, not on the person of appellant, but on
his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have
a right to fence off the contested property, to destroy appellant's house and
to shut off his ingress and egress to his residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or
fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755
for annulment of the order of award to Fleischer and Company was still
pending in the Court of First Instance of Cotabato. The parties could not
have known that the case would be dismissed over a year after the incident
on August 22, 1968, as it was dismissed on January 23, 1970 on ground
of res judicata, in view of the dismissal in 1965 (by the Court of Appeals) of
Civil Case No. 240 filed in 1950 for the annulment of the award to the
company, between the same parties, which the company won by virtue of
the compromise agreement in spite of the subsequent repudiation by the
settlers of said compromise agreement; and that such 1970 dismissal also
carried the dismissal of the supplemental petition filed by the Republic of the
Philippines on November 28, 1968 to annul the sales patent and to cancel
the corresponding certificate of title issued to the company, on the ground
that the Director of Lands had no authority to conduct the sale due to his
failure to comply with the mandatory requirements for publication. The
dismissal of the government's supplemental petition was premised on the
ground that after its filing on November 28, 1968, nothing more was done by
421
the petitioner Republic of the Philippines except to adopt all the evidence
and arguments of plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a
favorable judgment in Civil Case No. 755 filed on November 14, 1966 and
his execution of the contract of lease on February 21, 1967 was just to avoid
trouble. This was explained by him during cross-examination on January 21,
1970, thus:
It happened this way: we talked it over with my Mrs. that we
better rent the place because even though we do not know
who really owns this portion to avoid trouble. To avoid
trouble we better pay while waiting for the case because at
that time, it was not known who is the right owner of the
place. So we decided until things will clear up and determine
who is really the owner, we decided to pay rentals (p. 169,
t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p.
2, Defense Exhibits) within which to vacate the land. He should have
allowed appellant the peaceful enjoyment of his properties up to that time,
instead of chiselling the walls of his house and closing appellant's entrance
and exit to the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through
force or intimidation as long as there is a possessor who
objects thereto. He who believes that he has an action or a
right to deprive another of the holding of a thing must invoke
the aid of the competent court, if the holder should refuse to
deliver the thing.
Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be
protected in or restored to said possession by the means
established by the laws and the Rules of Court (Articles 536
and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to
destroy or cause damage to appellant's house, nor to close his accessibility
to the highway while he was pleading with them to stop and talk things over
with him. The assault on appellant's property, therefore, amounts to unlawful
aggression as contemplated by law.
 Illegal aggression is equivalent to assault or at least
threatened assault of immediate and imminent kind (People
vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's
property which he had the right to resist, pursuant to Art. 429 of the Civil
Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the
right to exclude any person from the enjoyment and disposal
thereof. For this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying
circumstance of self-defense or defense of one's rights under paragraph 1 of
Article 11, Revised Penal Code. When the appellant fired his shotgun from
his window, killing his two victims, his resistance was disproportionate to the
attack.
WE find, however, that the third element of defense of property is present,
i.e., lack of sufficient provocation on the part of appellant who was defending
his property. As a matter of fact, there was no provocation at all on his part,
since he was asleep at first and was only awakened by the noise produced
by the victims and their laborers. His plea for the deceased and their men to
stop and talk things over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable,
since not all the elements for justification are present. He should therefore
be held responsible for the death of his victims, but he could be credited
with the special mitigating circumstance of incomplete defense, pursuant to
paragraph 6, Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying
circumstance of treachery cannot be appreciated in this case because of the
presence of provocation on the part of the deceased. As WE held earlier in
People vs. Manlapaz (55 SCRA 598), the element of a sudden unprovoked
attack is therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the
method of assault adopted by the aggressor was deliberately chosen with a
special view to the accomplishment of the act without risk to the assailant
from any defense that the party assailed might have made. This cannot be
422
said of a situation where the slayer acted instantaneously ..." (People vs.
Cañete, 44 Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of evident
premeditation not sufficiently established. The only evidence presented to
prove this circumstance was the testimony of Crisanto Ibañez, 37 years old,
married, resident of Maitum, South Cotabato, and a laborer of Fleischer and
Company, which may be summarized as follows:
On August 20, 1968 (two days before the incident) at about
7:00 A.M., he was drying corn near the house of Mr. and
Mrs. Mamerto Narvaez at the crossing, Maitum, South
Cotabato, when the accused and his wife talked to him. Mrs.
Narvaez asked him to help them, as he was working in the
hacienda. She further told him that if they fenced their
house, there is a head that will be broken. Mamerto Narvaez
added 'Noy, it is better that you will tell Mr. Fleischer
because there will be nobody who will break his head but I
will be the one.' He relayed this to Mr. Flaviano Rubia, but
the latter told him not to believe as they were only Idle
threats designed to get him out of the hacienda (pp. 297-
303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the
aggravating circumstance of evident premeditation. As WE have
consistently held, there must be "direct evidence of the planning or
preparation to kill the victim, .... it is not enough that premeditation be
suspected or surmised, but the criminal intent must be evidenced by
notorious outward acts evincing the determination to commit the crime"
(People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing"
that the accused premeditated the killing; that the culprit clung to their (his)
premeditated act; and that there was sufficient interval between the
premeditation and the execution of the crime to allow them (him) to reflect
upon the consequences of the act" (People vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the
deceased Davis Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or
preparation to kill the victims nor that the accused premeditated the killing,
and clung to his premeditated act, the trial court's conclusion as to the
presence of such circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the
victims to stop the fencing and destroying his house and to talk things over
just before the shooting.
But the trial court has properly appreciated the presence of the mitigating
circumstance of voluntary surrender, it appearing that appellant surrendered
to the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the commission of
the crime. The appellant awoke to find his house being damaged and its
accessibility to the highway as well as of his rice mill bodega being closed.
Not only was his house being unlawfully violated; his business was also in
danger of closing down for lack of access to the highway. These
circumstances, coming so near to the time when his first house was
dismantled, thus forcing him to transfer to his only remaining house, must
have so aggravated his obfuscation that he lost momentarily all reason
causing him to reach for his shotgun and fire at the victims in defense of his
rights. Considering the antecedent facts of this case, where appellant had
thirty years earlier migrated to this so-called "land of promise" with dreams
and hopes of relative prosperity and tranquility, only to find his castle
crumbling at the hands of the deceased, his dispassionate plea going
unheeded-all these could be too much for any man-he should be credited
with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing
not being attended by any qualifying nor aggravating circumstance, but
extenuated by the privileged mitigating circumstance of incomplete defense-
in view of the presence of unlawful aggression on the part of the victims and
lack of sufficient provocation on the part of the appellant-and by two generic
mitigating circumstance of voluntary surrender and passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide
as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by
one or two degrees shall be imposed if the deed is not wholly excusable by
reason of the lack of some of the conditions required to justify the same.
Considering that the majority of the requirements for defense of property are
present, the penalty may be lowered by two degrees, i.e., to prision
correccional And under paragraph 5 of Article 64, the same may further be
reduced by one degree, i.e., arresto mayor, because of the presence of two
mitigating circumstances and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta
vs. Pan American World Airways (43 SCRA 397), the award for moral
damages was reduced because the plaintiff contributed to the gravity of
defendant's reaction. In the case at bar, the victims not only contributed but
423
they actually provoked the attack by damaging appellant's properties and
business. Considering appellant's standing in the community, being married
to a municipal councilor, the victims' actuations were apparently designed to
humiliate him and destroy his reputation. The records disclose that his wife,
councilor Feliza Narvaez, was also charged in these two cases and
detained without bail despite the absence of evidence linking her to the
killings. She was dropped as a defendant only upon motion of the
prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No.
1816), but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal
Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of
Fleischer and Company, despite its extensive landholdings in a Central
Visayan province, to extend its accumulation of public lands to the
resettlement areas of Cotabato. Since it had the capability-financial and
otherwise-to carry out its land accumulation scheme, the lowly settlers, who
uprooted their families from their native soil in Luzon to take advantage of
the government's resettlement program, but had no sufficient means to fight
the big landowners, were the ones prejudiced. Thus, the moral and material
suffering of appellant and his family deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person
convicted of prision correccional or arrests mayor and fine who has no
property with which to meet his civil liabilities to serve a subsidiary
imprisonment at the rate of one (1) day for each P 2.50. However, the
amendment introduced by Republic Act No. 5465 on April 21, 1969 made
the provisions of Art. 39 applicable to fines only and not to reparation of the
damage caused, indemnification of consequential damages and costs of
proceedings. Considering that Republic Act 5465 is favorable to the
accused who is not a habitual delinquent, it may be given retroactive effect
pursuant to Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE
PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-
DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING
CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION,
WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS
HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4)
MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF
HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM
OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY
IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES
AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR
ALMOST FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY
SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS
HEREBY ORDERED. NO COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro,
Melencio-Herrera, Escolin Vasquez and Relova, JJ., concur.
Aquino, J., is on leave.
Plana, J., in the result.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to unlawful
aggression on persons, not property Plana, J., in the result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am constrained to
dissent in part. It is true that Art. 429, Civil Code of the Philippines, provides
that the owner or legal possessor of a thing may use such force as may be
reasonably necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property. It seems to me, however,
that an attack on the person defending his property is an indispensable
element where an accused pleads self-defense but what is basically
defended is only property.
Defense of property is not of such importance as the right to life and
defense of property can only be invoked when it is coupled with some form
of attack on the person of one entrusted with said property. The defense of
property, whether complete or incomplete, to be available in prosecutions
424
for murder or homicide must be coupled with an attack by the one getting
the property on the person defending it.
In the case now before Us, there is absolutely no evidence that an attack
was attempted, much less made upon the person of appellant. The mere
utterance "No, gademit proceed, go ahead" is not the unlawful aggression
which entitles appellant to the pela of self-defense. I agree with the majority
opinion that the crime is homicide but without any privileged mitigating
circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of
voluntary surrender and obfuscation, without any aggravating circumstance,
maximum the sentence the appellant should have served was prision mayor
plus the indemnification to each group of heirs of Davis Fleischer and of
Flamiano Rubia of the sum of Four Thousand (P4,000.00) Pesos, without
subsidiary imprisonment, but without any award for moral damages and
attorney's fees.
Considering that appellant has been under detention for almost fourteen
(14) years now since August 22, 1968, he has served the penalty and
should be released.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to unlawful
aggression on persons, not property Plana, J., in the result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am constrained to
dissent in part. It is true that Art. 429, Civil Code of the Philippines, provides
that the owner or legal possessor of a thing may use such force as may be
reasonably necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property. It seems to me, however,
that an attack on the person defending his property is an indispensable
element where an accused pleads self-defense but what is basically
defended is only property.
Defense of property is not of such importance as the right to life and
defense of property can only be invoked when it is coupled with some form
of attack on the person of one entrusted with said property. The defense of
property, whether complete or incomplete, to be available in prosecutions
for murder or homicide must be coupled with an attack by the one getting
the property on the person defending it.
In the case now before Us, there is absolutely no evidence that an attack
was attempted, much less made upon the person of appellant. The mere
utterance "No, gademit proceed, go ahead" is not the unlawful aggression
which entitles appellant to the pela of self-defense. I agree with the majority
opinion that the crime is homicide but without any privileged mitigating
circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of
voluntary surrender and obfuscation, without any aggravating circumstance,
maximum the sentence the appellant should have served was prision mayor
plus the indemnification to each group of heirs of Davis Fleischer and of
Flamiano Rubia of the sum of Four Thousand (P4,000.00) Pesos, without
subsidiary imprisonment, but without any award for moral damages and
attorney's fees.
Considering that appellant has been under detention for almost fourteen
(14) years now since August 22, 1968, he has served the penalty and
should be released.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5749 October 21, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
PONCIANO ESMEDIA and MENA ESMEDIA, defendants-appellants.
W. L. Wright, for appellants.
Attorney-General Villamor, for appellee.
425
TRENT, J.:
This is an appeal from a sentence rendered by the Court of First Instance of
the Province of Antique, condemning Ponciano Esmedia and Mena
Esmedia to twelve years and one day of reclusion temporal, to jointly and
severally pay to the heirs of Ciriaco Abando the sum of P1,000, to the heirs
of Santiago Abando the sum of P1,000, and to pay the costs of the cause,
for the crime of double homicide.
Ciriaco Abando, his wife, and their son, Santiago, lived in the jurisdiction of
the municipality of Sibalom, in the barrio of Bongboñgan, Province of
Antique. Gregorio Esmedia, father of these two accused, son-in-law of
Ciriaco Abando and brother-in-law of Santiago Abando, lived in the same
barrio. These tow families lived very near to each other and owned adjoining
rice lands. Before this trouble occurred there had been a dispute between
these two families relative to the ownership of the rice land then occupied by
Ciriaco Abando. About 2 o'clock on the afternoon of the 24th of June, 1909,
Ciriaco Abando instructed his son, Santiago, to go to a certain place in his
rice field to let out the water in order that they could plant rice the said field.
In compliance with these instructions of his father, Santiago proceeded to
the place designated, and while at work doing what he had been ordered by
his father to do, Gregorio Esmedia appeared on the scene and started a
quarrel with Santiago. Soon thereafter Gregorio drew a dagger and stabbed
Santiago in the back. Santiago fell to the ground, but arose immediately and
attacked Gregorio with his bolo, inflicting several wounds on the said
Gregorio in consequence of which he fell to the ground. Before this trouble
finally terminated the two accused and Ciriaco Abando appeared in that
immediate vicinity.
These two accused contend that they were working in their rice field near
by, and on seeing Ciriaco Abando and Santiago Abando attacking their
father, Gregorio, they started to the place to render their father assistance,
Ponciano starting first; that when Ponciano got near the place of the trouble
he was met by Ciriaco and Santiago who attacked him with bolos and clubs
and that he, Ponciano, in self-defense, knocked them both down, and after
they had fallen the other accused, Mena Esmedia, arrived. Ponciano further
contends that he did not use a bolo in this fight, but used a club only.
The prosecution in the court below contended that when these two accused
saw the fight between their father and Santiago they rushed to the place and
proceeded to kill, as they thought, Santiago, and on seeing Ciriaco
approaching they met him and killed him outright.
As a result of this fight Ciriaco was left dead on the scene, Gregorio
received fatal wounds from which he died within about four hours, and
Santiago also received fatal wounds from which he died five days later.
Ciriaco Abando received two wounds on the top of his head, one 8
centimeters and the other 3 centimeters in length, caused by some cutting
instrument, and also sustained a fracture of the skull, apparently caused be
means of a blow. He also had a wound on the head 3 centimeters in depth;
another on the neck below the left ear 3 ½ centimeters in depth and 3
centimeters in lenght; the left eye was bruised and he also had a wound on
the palm of the right hand 3 centimeters in length and 2 millimeters in depth.
Santiago Abando received in all seven wounds, one crosswise of the head,
back of the left ear, 8 centimeters in lenght and 1 centimeter in depth,
another on top of the head, just above the first wound, 5 centimeters in
length and a half centimeter in depth, a third wound on the left part of the
neck 4 centimeters in length, all of these three wounds having been caused
by a cutting instrument; a fourth wound, also caused by some sharp
instrument, 1 centimeter in depth and 8 centimeters in length, on the top of
the head; a fifth wound, 2 ½ centimeters in length and 5 millimeters in depth,
which was in the nature of a contusion, appeared on the frontal region of the
head; a sixth wound, 2 centimeters in length and 3 ½ centimeters deep, in
the back; and a seventh wound on the left hand, 4 centimeters in length, 2
½ centimeters wide, and 2 millimeters in depth, which had apparently been
caused by some cutting instrument.
The body of Gregorio Esmedia showed four wounds; a wound or bruise on
the front of the head, 5 by 6 centimeters in dimension; another wound,
caused by a cutting instrument, running across the head, 6 centimeters in
lenght; another wound, apparently caused by a blow with some blunt
instrument, on the breast; and another wound 1 centimeter in depth,
apparently caused by a cutting instrument, and also a bruise on the left arm.
The accused Ponciano Esmedia, received one wound on the head, but it
was not of serious nature; the other accused, Mena Esmedia, escaped
uninjured.1aw phil.net
The prosecution presented Andrea Lactoson, 60 years of age, wife of the
deceased Ciriaco, and Julian Alagos, a young boy about 16 years of age, a
grandson of Ciriaco. These two witnesses saw the fight and gave a detailed
account of the same. While it is true that these two witnesses contradicted
themselves to some extent on cross-examination, they having testified on
direct examination that Ciriaco never did reach the scene of the fight but
was killed by the two accused while on his way there, whereas on cross-
examination they testified that Ciriaco was therewhen the accused arrived,
426
yet it is clear that they intended to say that when the two accused arrived
Ciriaco was in that vicinity but they did not mean to say that he was at the
very side of his son.
The theory of the defense that Ponciano was attacked by Ciriaco and
Santiago is untenable, as the nature and character of the wounds on the
bodies of these two persons show clearly that at least some of them were
inflicted by bolos, and Ponciano must have used a bolo in the fight, though
he contends that he only made use of a club. The bolo wounds on the
heads of Gregorio and Santiago were of such a serious nature that it would
have been impossible for them to have gone any distance after having been
wounded. So they could not have rushed toward Ponciano and attacked him
after having received these wounds. Santiago was stabbed in the back by
Gregorio, but this wound of itself was not necessarily fatal.
After a careful consideration of this entire record we are thoroughly satisfied
that the following facts, aside from those we have already related, have
been established: 1awphil.net
The two accused arrived on the scene about the time the fight between
Santiago and Gregorio was terminating, and on seeing their father,
Gregorio, lying in the mud and water, fatally wounded and dying, and
honestly believing that Santiago, who was standing at the time, would inflict
other wounds upon their father, they, in his defense, immediately killed
Santiago. Ciriaco was near the scene at this time and on seeing him to the
two accused, under this great excitement, proceeded to attack him, and as a
direct result of the blows inflicted by them he fell to the ground, dying
immediately. Ciriaco was an old man, about 80 years of age, and used a
cane to assist him in walking about.
Under the provisions of No. 5, article 8 of the Penal Code, the two accused
are exempt from criminal responsibility for having caused the death of
Santiago Abando, inasmuch as it has been shown that they inflicted these
wounds upon him in defense of their father who was fatally wounded at the
time. They honestly believed, and had good grounds upon which to found
their belief, that Santiago would continue his attack upon their father. They
are, however, guilty of having caused the death of the old man, Ciriaco
Abando. When they attacked and killed him the other trouble had terminated
and they were not in danger of bodily harm from him.
In the commission of this crime of homicide, we must take into consideration
No. 20 of article 10 of the Penal Code which provides, as an aggravating
circumstance, that "when the act is committed with insult or in disregard for
the respect which may be due the aggrieved party on account of his rank,
age, . . ." inasmuch as the deceased, Ciriaco, was a man 80 years of age
and did not arrive on the scene until after the trouble between the two PEOPLE OF THE PHILIPPINES, G.R. No. 175603
accused and Santiago had terminated.

As we have said, these two accused killed this old man, Ciriaco, while Appellee,
laboring under great excitement and in the heat of passion, and it might be
insisted that under these circumstances they should be given the benefit of
No. 7 of article 9 of the Penal Code, as an extenuating circumstance. This
provision should be applied to reduce the penalty in cases where the
provocation which caused the heated passion was made by the injured Present:
party. In the case at bar the provocation was made by Santiago and not
Ciriaco, as Ciriaco arrived after the fight had terminated and there was then PUNO, C.J.,
no provocation running from the old man, Ciriaco, to these accused. He was
entirely unarmed and made no demonstration and said no word prior to the
assault upon him by the two accused. So the state of mind into which these QUISUMBING,
two accused were thrown by the provocation induced by Santiago can not
modify the extent of their punishment for killing the old man. In other words, YNARES-
before this provision can be applied as an extenuating circumstance it is
necessary, as we have said, that the person injured should have executed SANTIAGO,
the act producing arrebato y obcecacion. It can not be applied when an
assault is made upon a person who had taken no part in the quarrel and had CARPIO,
not in any manner provoked the accused. (Decision of the supreme court of
Spain dated October 17, 1904, published in the Official Gazette on
December 23 following; decision of the supreme court of Spain dated AUSTRIA-MARTINEZ,
January 12, 1894; White vs. State, 44 Tex. Cr. Rep., 346; State vs. Jackson,
45 La. Ann., 1031; State vs. Vinso, 171 Mo., 576.) CORONA,
In view of the fact that these two accused are ignorant the aggravating
circumstance is compensated by the provisions of article 11 of the Penal
CARPIO
Code which we applied in this case. MORALES,
The sentence appealed from is, therefore, affirmed; provided, however, that
these two accused, Ponciano Esmedia and Mena Esmedia, be condemned
- v e r s u s - AZCUNA,
to fourteen years eight months an one day of reclusion temporal, and to the
accessory penalties; and, provided further, that they be declared exempt TINGA,
from criminal responsibility for causing the death of Santiago Abando, which
exemption relieves them from paying any indemnity to the heirs of the said CHICO-NAZARIO,
Santiago Abando.

Arellano, C.J., Torres, Johnson and Moreland, JJ., concur. VELASCO, JR.,

EN BANC NACHURA,

LEONARDO-DE CASTRO,

427
 BRION and convicting appellant of the crime of parricide and sentencing
PERALTA, JJ. him to reclusion perpetua.

Appellant Renato Espaol was charged with killing his

RENATO ESPAOL, wife, Gloria Pascua Espaol, in an Information that read:

Appellant. Promulgated:

February 13, 2009 That on or about the 2nd day of February,

x----------------------------------------------
----x
D E CI S I O N
CORONA, J.:
This is an appeal of the November 30, 2005 decision[1] and
June 29, 2006 resolution[2] of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 1375 which affirmed the decision of the
Regional Trial Court (RTC) of Dagupan City, Branch 42
2000, in the City of Dagupan, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, RENATO ESPAOL @ Atong,
being then legally married to one GLORIA ESPAOL,
with intent to kill the latter, did then and there,
[willfully], unlawfully and criminally, attack, assault
and use personal violence upon the latter by
shooting her, hitting her on vital part of her body,
thereby causing her death shortly thereafter due
to Hypovolemic shock, hemorrhage, massive, due
to multiple gunshot wound as per Autopsy Report
issued by Dr. Benjamin Marcial Bautista, Rural
Health Physician, to the damage and prejudice of
the legal heirs of said deceased, GLORIA ESPAOL,
in the amount of not less than FIFTY THOUSAND
PESOS (P50,000.00), Philippine Currency, and
other consequential damages.
Contrary to Article 246 of the Revised Penal Code.[3]

428

When arraigned, appellant pleaded not guilty to the
charge. During the pre-trial, the prosecution and defense
agreed on the following stipulations and admissions:
1. That the appellant under detention and
named in the information was the accused who
had been arraigned;
2. That the victim, Gloria Pascua Espaol, was
the legal wife of appellant;
3. That Gloria and appellant were living
together as husband and wife prior to February 2,
2000 and that she was shot to death at the early
dawn of February 2, 2000 at Pantal, Dagupan City;
4. That before the victim was shot,
appellant borrowed the tricycle of Federico Ferrer
and drove said tricycle with his wife inside the cab
thereof from their house towards the house of
Felicidad Ferrer, sister of the victim;
429
5. That appellant and the victim lived in
their own house with their four children.[4]
Thereafter, trial ensued.
The factual antecedents follow.
At about 2:00 a.m. of February 2, 2000, Domingo Petilla
was waiting for his companions at Pantal Road, Dagupan
City. They were on their way to Manila. All of a sudden, he
heard two successive gunshots. A few moments later, a
yellow tricycle sped past him along Pantal Road headed
towards Sitio Guibang, Dagupan City. The tricycle was driven
by a man wearing a dark-colored long-sleeved shirt.[5]
Petillas companions arrived shortly thereafter on board a
van. As they started loading their things, they saw, through
the lights of their vehicle, a person lying on the pavement
along Pantal Road. Upon closer scrutiny, they discovered the
lifeless body of Gloria Espaol. They immediately reported the
matter to the police.[6]

The gunshots were also heard by Harold Villanueva,[7] a
boatman working at the Pantal River, while he was waiting for
passengers at the dock about 100 meters away from the
crime scene. The shots were followed by the sound of a
motorcycles revving engine. He then saw a speeding yellow
tricycle. The tricycle bore the name Rina in front of its cab. Its
driver was wearing a dark jacket and blue pants. The boatman
was later told by a tricycle driver that there was a dead body
nearby. Out of curiosity, he (the boatman) went there and
recognized the victim as one of his regular passengers.[8]
Felicidad Pascua Ferrer, sister of the victim, was told by
the police and neighbors that her sister was dead. She
immediately proceeded to the place. Upon confirming that it
was indeed her sister, she asked bystanders to inform
appellant about the death of his wife.[9]
A few minutes later, appellant arrived. Even before he saw his
dead wife, he shouted She is my wife, she is my wife. Who
killed her? Vulva of your mother! She was held up. Appellant
430
stepped across the body and saluted the police
investigator. He told the police that he brought the victim to
the place where she was found and that she could have been
robbed of the P2,000 he had earlier given her.[10]
Meanwhile, Villanueva noticed that the appellant seemed to
be wearing the same clothes as those worn by the driver of
the speeding tricycle he saw along Pantal Road right after he
heard the gunshots.[11]
At around 3:00 a.m., appellant went to the house of
Mateo Pascua, brother of Gloria, to inform him that Gloria
was held up and killed. They then proceeded to the scene of
the crime using the yellow tricycle of their brother-in-law,
Federico Ferrer. The tricycle had the name Rina emblazoned
in front. On the way, Mateo noticed that the seats and floor
of the tricycle were wet. When asked about it, appellant did
not answer.[12]
Thereafter, at the morgue, appellant refused to look at
the body and preferred to stay outside.[13] The autopsy
yielded the following results:
EXTERNAL FINDINGS
CADAVER WAS IN RIGOR MORTIS AND REGULAR INTRACRANIAL HEMORRHAGE, MODERATE
BUILT.
PENETRATING PERFORATING BRAIN TISSUE

INTRATHORACIC RIGHT, HEMORRHAGE MASSIVE

GUNSHOT WOUND, POE, 0.7 CM, MID FRONTAL
PENETRATING AND PERFORATING THRU AND THRU
AREA, LEVEL 5 CM ABOVE THE EYEBROW, COLLAR
RIGHT [LUNG] AND HEART.
ABRASION, NO GUNPOWDER BURN,
PENETRATING, SKULL FRACTURE, BRAIN TISSUE. 6TH [RIB] FRACTURE, 2.5 CM, LEFT MID CLAVICULAR
LINE, MEDIAL

SLUG FOUND ABOVE THE 6TH [RIB], WITHIN THE

POEx: NONE
MUSCLES, LEFT THORACIC AREA.[14]

GUNSHOT WOUND, POE, 1.5 CM, RIGHT MID

AXILLIARY LINE, LEVEL 2 CM BELOW THE RIGHT Disturbed by appellants actuations, Felicidad asked the police
NIPPLE, LESS DENSE, GUNPOWDER BURN
to interrogate her brother-in-law. At the police station, while
PERIPHERY, COLLAR ABRASION, SKIN ABRASION
POSTERIOR, PENETRATING. appellant was being investigated, he requested Senior Police
Officer (SPO)1 Isagani Ico if he could talk privately with
Felicidad. During their talk, appellant begged Felicidads
POEx: NONE
forgiveness and asked that he be spared from
imprisonment.[15]
CONTUSION HEMATOMA AT THE RIGHT EYE AREA.

During the victims wake in their house, appellant hardly

INTERNAL FINDINGS looked at his wifes remains. He chose to remain secluded at

431
the second floor. He repeatedly asked for Felicidads
forgiveness during the first night of the wake. At one point,
Delfin Hernandez, a nephew of the victim, approached
appellant and asked why the latter killed his aunt. Appellant
just kept silent.[16]
It was also disclosed by Norma Pascua Hernandez, Glorias
other sister, that Gloria confided to her appellants illicit
relationship with a woman named Eva Seragas. Gloria went to
Evas house and confronted her about the adulterous
relationship but appellant came to Evas defense and forcibly
dragged Gloria away. Later, Gloria had another heated
argument with Eva.Norma pacified her sister and brought her
home.[17]
After the presentation of the prosecutions evidence in-chief,
the defense filed a demurrer to evidence. The RTC denied the
demurrer in an order dated August 21, 2000.[18]
For his defense, appellant testified that he had been an
employee of the Dagupan City Water District since 1990. In
the early morning of February 2, 2000, he and his wife were
432
on their way to downtown Dagupan City on board a tricycle
driven by him to buy binuburan (fermented cooked rice), a
local medication for his ulcer. However, upon reaching
Quimosing Alley along Pantal Road, Gloria decided to alight
and wake up her sister Felicidad who lived nearby. Gloria and
Felicidad were engaged in the trading of fish in Dagupan
City.[19]
After saying their goodbyes, appellant proceeded to the city
proper alone. He bought binuburan and other ulcer
medications and went home. Around 2:30 a.m., a passing
tricycle driver informed him that the water engine of the
Dagupan Water District was creating too much noise. He
decided to verify the information.[20]
On his way there, appellant noticed a commotion along Pantal
Road. An unidentified man later told him, Espaol, come
here. Your wife is dead. He immediately proceeded to the
scene of the crime. As he was about to embrace the dead
body of his wife, someone tapped him on the shoulder and
said No, dont touch her, she is still to be investigated. At the
morgue, he noticed that his wife had a bruise above her right

elbow and that her zipper was partially opened. After a few
minutes, he asked to be excused for he could not bear the
pain and sorrow.[21]
He denied that he asked forgiveness from his sister-in-law
Felicidad for killing his wife; that he was barely around during
his wifes wake and that he did not respond to his nephews
accusation. He likewise denied having an adulterous
relationship with Eva Seragas.[22]
Rachel and Richwell Espaol, appellants children,
corroborated their fathers story and maintained that he was
at their house resting at the time of the commission of the
crime. They insisted that he was always beside the coffin of
their mother during the wake and that he had no other
woman. Rachel testified that she and her mother were
close. If it were true that her father had illicit relations with
another woman, her mother would have confided in her.
On February 19, 2001, the RTC convicted appellant:
433
WHEREFORE, premises considered, the accused
RENATO ESPAOL alias Atong is hereby found guilty
beyond reasonable doubt of the crime of
PARRICIDE as defined by Article 246 of the Revised
Penal Code and penalized by R.A. 7659 otherwise
known as the Heinous Crime Law. Under the latter
law, the offense is punishable by reclusion
perpetua to death and there being no aggravating
circumstance alleged in the information, accused
is hereby sentenced to suffer the lesser penalty
of reclusion perpetua. In addition, the death his
wife has to be indemnified by him in the amount
of P50,000.00 and is further ordered to pay to
Felicidad Ferrer the amount of P20,000.00 as
actual and compensatory damages. No moral
damages is awarded for the reason stated above.
SO ORDERED.
Aggrieved, appellant filed an appeal in this Court which
we referred to the CA in accordance with People v.
Mateo.[23] The CA affirmed the RTC in a decision promulgated
on November 30, 2005. It denied reconsideration in a
resolution dated June 29, 2006.
Hence this appeal.
 1.
The issue for our resolution is whether appellant is
guilty of the crime of parricide.
Under Article 246 of the Revised Penal Code, parricide
is the killing of ones legitimate or illegitimate father, mother,
child, any ascendant, descendant or spouse and is punishable
2.
by the single indivisible penalty of reclusion perpetua to
death:
Article 246. Parricide. Any person who shall
kill his father, mother or child, whether legitimate
or illegitimate, or any of his ascendants, or
3.
descendants, or his spouse, shall be guilty of
parricide and shall be punished by the penalty
of reclusion perpetua to death.
4.
In convicting the appellant, the RTC and CA found that
the following circumstances proved beyond reasonable doubt
that he was guilty of parricide:
5.
434
appellant admitted that he was the one
who brought his wife to the scene of the
crime minutes before the latters body was
discovered. In other words, appellant was
with the victim around the time she was
shot and killed.
the tricycle which he used in transporting
his wife was seen by Harold Villanueva and
Domingo Petilla traveling at a high speed
coming from the direction where the
gunshots were heard.
appellant, immediately after the incident,
was wearing the same dark jacket and blue
jeans worn by the driver of the speeding
tricycle.
appellant asserted that his wife was
robbed, even before the investigation had
started. However, the victims purse and
other belongings were all found intact.
appellant did not respond to his brother-in-
laws query as to why the tricycles sidecar
 which appellant had used in transporting his
wife was wet.
6. appellant isolated himself during the nine-
day wake of his wife.
7. appellant repeatedly asked to be forgiven
by Felicidad and spared from imprisonment
during the investigation of the case, which
was corroborated by SPO1 Ico, and during
the first night of the wake.
8. appellant had a paramour, a certain Eva
Seragas. A month prior to the killing, the
victim confided to her sister, Norma
Fernandez, that she had a confrontation
with her husbands paramour at the latters
home, but appellant dragged and pulled her
away. A few days after, the two crossed
paths again and quarreled.[24]
We agree with the CA.
435
These circumstances are proven facts. We are
convinced that at around 2:00 a.m. of February 2, 2000,
appellant shot his wife twice on the head and breast, causing
her death. Though there is no direct evidence, we have
previously ruled that direct evidence of the actual killing is not
indispensable for convicting an accused when circumstantial
evidence can adequately establish his or her guilt.[25]
Circumstantial evidence is sufficient for conviction if (a)
there is more than one circumstance; (b) the facts from which
the inferences are derived have been proven and (c) the
combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.[26]
Circumstantial as it is, conviction based
thereon can be upheld, provided the circumstances
proven constitute an unbroken chain which leads
to one fair and reasonable conclusion that points
to accused-appellant, to the exclusion of all others,
as the guilty person. Direct evidence of the
commission of the crime is not the only matrix
from which the trial court may draw its conclusions
and findings of guilt. Circumstantial evidence is of a
nature identical to direct evidence. It is equally
 direct evidence of minor facts of such a nature that
the mind is led, intuitively or by a conscious
process of reasoning, to a conclusion from which
some other fact may be inferred. No greater
degree of certainty is required when the evidence
is circumstantial than when it is direct. In either
case, what is required is that there be proof
beyond reasonable doubt that a crime was
committed and that accused-appellant committed
it.[27]
None of the prosecution witnesses saw the actual killing
of the victim by appellant. However, their separate and
detailed accounts of the surrounding circumstances reveal
only one conclusion: that it was appellant who killed his
wife.[28]
Appellant argues that the lower courts should not have
given weight to the testimonies of the prosecution witnesses
because they were incredible and illogical.[29] We disagree.
Well-entrenched is the rule that the trial courts
evaluation of the testimonies of witnesses is accorded great
436
respect in the absence of proof that it was arrived at
arbitrarily or that the trial court overlooked material
facts. The rationale behind this rule is that the credibility of a
witness can best be determined by the trial court since it has
the direct opportunity to observe the candor and demeanor
of the witnesses at the witness stand and detect if they are
telling the truth or not.[30] We will not interfere with the trial
court's assessment of the credibility of witnesses.
Appellants bare denial that he did not kill his wife is a
negative and self-serving assertion which merits no weight in
law and cannot be given greater evidentiary value than the
testimony of credible witnesses who testified on affirmative
matters.[31] The prosecution witnesses were not shown to
have any ill-motive to fabricate the charge of parricide against
appellant nor to falsely testify against him.
Appellants defense of alibi is likewise weak. He alleged
that he went home after he went downtown to buy his
medications. His children attested that he was with them in
their house at the time of the commission of the
crime. However,
 Section 32. Admission by silence. An act or
declaration made in the presence and within the
[alibi] is easy to fabricate but difficult to
hearing observation of a party who does or says
prove. xxx We have held that for the defense of
nothing when the act or declaration is such as
alibi to prosper, the requirements of time and
naturally to call for action or comment if not true,
place (or distance) must be strictly met. It is not
and when proper and possible for him to do so,
enough to prove that the accused was somewhere
may be given in evidence against him.
else when the crime was committed. He must also
demonstrate by clear and convincing evidence that
it was physically impossible for him to have been at
the scene of the crime during its commission.[32] In addition, appellants act of pleading for his sister-in-laws
forgiveness may be considered as analogous to an attempt to
compromise, which in turn can be received as an implied
Appellants house was merely minutes away from the place admission of guilt under Section 27, Rule 130:[33]
where the crime took place. Assuming that the children
Section 27. Offer of compromise not
actually knew that appellant was home when their mother admissible.
was killed, this did not prove that he was not guilty. It was
easy for him to hurry home right after the crime. In fact, this is
xxx xxx xxx
a reasonable conclusion from the circumstantial evidence
gathered.
In criminal cases, except those involving quasi-
Another piece of evidence against appellant was his silence
offenses (criminal negligence) or those allowed by
when his wifes nephew asked him why he killed his wife. His law to be compromised, an offer of compromise by
silence on this accusation is deemed an admission under the accused may be received in evidence as an
implied admission of guilt.
Section 32, Rule 130 of the Rules of Court:

437
 xxx xxx xxx
WHEREFORE, the decision and resolution of the Court
of Appeals in CA-G.R. CR-H.C. No. 1375 finding the appellant,
Renato Espaol, guilty beyond reasonable doubt of the crime
In sum, the guilt of appellant was sufficiently
of parricide is hereby AFFIRMED WITH
established by circumstantial evidence. Reclusion
MODIFICATION. Appellant is sentenced to suffer the penalty
perpetua was correctly imposed considering that there was
of reclusion perpetua and to pay the heirs of the victim, Gloria
neither any mitigating nor aggravating circumstance
Espaol, in the amounts of P50,000 as civil indemnity, P20,000
[34]
present. The heirs of the victim are entitled to a civil
as actual damages, P50,000 as moral damages and P25,000 as
indemnity ex delicto of P50,000, which is mandatory upon
exemplary damages.
proof of the fact of death of the victim and the culpability of
the accused for the death.[35]
Costs against appellant.

Likewise, moral damages in the amount of P50,000

should be awarded even in the absence of allegation and SO ORDERED.
proof of the emotional suffering by the victims heirs. Although
appellants two children sided with him in his defense, this did
not negate the fact that the family suffered emotional pain
RENATO C. CORONA
brought about by the death of their mother.[36] We also award
them exemplary damages in the sum of P25,000 considering Associate Justice
that the qualifying circumstance of relationship is present, this
being a case of parricide.[37]

438
 CONCHITA CARPIO MORALES ADOLFO S. AZ

WE CONCUR: Associate Justice Associate Jus

REYNATO S. PUNO DANTE O. TINGA MINITA V. CHICO-

Chief Justice
Associate Justice Associate Jus

LEONARDO A. QUISUMBING
Associate Justice CONSUELO YNARES-SANTIAGO ANTONIO EDUARDO B.
PRESBITERO J. VELASCO, JR. Associate Jus
Associate Justice
Associate Justice

ANTONIO T. CARPIO MA. ALICIA M. AUSTRIA-MARTINEZ

Associate Justice AssociateTERESITA

Justice J. LEONARDO-DE CASTRO ARTURO D. B

Associate Justice Associate Jus

DIOSDADO M. PERALTA

439
 Associate Justice TINGA, J.:

Petitioner Vicky C. Ty (Ty) filed the instant Petition for

Review under Rule 45, seeking to set aside
CERTIFICATION the Decision of the Court of Appeals Eighth Division in
[1]

CA-G.R. CR No. 20995, promulgated on 31 July

2001. The Decision affirmed with modification the judgment
of the Regional Trial Court (RTC) of Manila, Branch 19,
Pursuant to Section 13, Article VIII of the Constitution, I dated 21 April 1997, finding her guilty of seven (7) counts
certify that the conclusions in the above decision had been of violation ofBatas Pambansa Blg. 22 (B.P. 22), [2]

otherwise known as the Bouncing Checks Law.

reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division. This case stemmed from the filing of seven
(7) Informations for violation of B.P. 22 against Ty before
the RTC of Manila. The Informations were docketed as
Criminal Cases No. 93-130459 to No. 93-130465. The
accusatory portion of the Information in Criminal Case No.
93-130465 reads as follows:

That on or about May 30, 1993, in the City of Manila,

REYNATO S. PUNO Philippines, the said accused did then and there willfully,
unlawfully and feloniously make or draw and issue to Manila
Chief Justice Doctors Hospital to apply on account or for value to Editha L.
Vecino Check No. Metrobank 487712 dated May 30, 1993
payable to Manila Doctors Hospital in the amount of P30,000.00,
said accused well knowing that at the time of issue she did not
SECOND DIVISION have sufficient funds in or credit with the drawee bank for
payment of such check in full upon its presentment, which check
when presented for payment within ninety (90) days from the
[G.R. No. 149275. September 27, 2004] date hereof, was subsequently dishonored by the drawee bank for
Account Closed and despite receipt of notice of such dishonor,
said accused failed to pay said Manila Doctors Hospital the
amount of the check or to make arrangement for full payment of
VICKY C. TY, petitioner, vs. PEOPLE OF THE
the same within five (5) banking days after receiving said notice.
PHILIPPINES, respondent.
Contrary to law. [3]

DECISION
440
 The other Informations are similarly worded except for
the number of the checks and dates of issue. The data are
hereunder itemized as follows:
Criminal Case No. Check No. Postdated Amount
93-130459 487710 30 March 1993 30,000.00
93-130460 487711 30 April 1993 P30,000.00
93-130461 487709 01 March 1993 P30,000.00
93-130462 487707 30 December 1992 P30,000.00
93-130463 487706 30 November 1992 P30,000.00
93-130464 487708 30 January 1993 P30,000.00
93-130465 487712 30 May 1993 P30,000.00 [4]
The cases were consolidated and jointly tried. At her
arraignment, Ty pleaded not guilty. [5]
The evidence for the prosecution shows that Tys
mother Chua Lao So Un was confined at the Manila
Doctors Hospital (hospital) from 30 October 1990 until 4
June 1992. Being the patients daughter, Ty signed the
Acknowledgment of Responsibility for Payment in the
Contract of Admission dated 30 October 1990. As of 4 [6]
June 1992, the Statement of Account shows the total
[7]
liability of the mother in the amount of P657,182.40. Tys
sister, Judy Chua, was also confined at the hospital
from 13 May 1991 until 2 May 1992, incurring hospital bills
in the amount of P418,410.55. The total hospital bills of
[8]
the two patients amounted to P1,075,592.95. On 5 June
1992, Ty executed a promissory note wherein she
assumed payment of the obligation in installments. To
assure payment of the obligation, she drew several
postdated checks against Metrobank payable to the
hospital. The seven (7) checks, each covering the amount
of P30,000.00, were all deposited on their due dates.But
they were all dishonored by the drawee bank and returned
unpaid to the hospital due to insufficiency of funds, with the
Account Closed advice. Soon thereafter, the complainant
hospital sent demand letters to Ty by registered mail. As
the demand letters were not heeded, complainant filed the
seven (7) Informations subject of the instant case. [10]
For her defense, Ty claimed that she issued the checks
because of an uncontrollable fear of a greater injury. She
averred that she was forced to issue the checks to obtain
release for her mother whom the hospital inhumanely and
harshly treated and would not discharge unless the hospital
bills are paid. She alleged that her mother was deprived of
room facilities, such as the air-condition unit, refrigerator
and television set, and subject to inconveniences such as
the cutting off of the telephone line, late delivery of her
mothers food and refusal to change the latters gown and
bedsheets.She also bewailed the hospitals suspending
medical treatment of her mother. The debasing treatment,
she pointed out, so affected her mothers mental,
psychological and physical health that the latter
contemplated suicide if she would not be discharged from
the hospital. Fearing the worst for her mother, and to
comply with the demands of the hospital, Ty was
compelled to sign a promissory note, open an account with
Metrobank and issue the checks to effect her mothers
immediate discharge. [11]
Giving full faith and credence to the evidence offered by
the prosecution, the trial court found that Ty issued the
checks subject of the case in payment of the hospital bills
of her mother and rejected the theory of the
[9]
defense. Thus, on 21 April 1997, the trial court rendered
[12]
a Decision finding Ty guilty of seven (7) counts of violation
of B.P. 22 and sentencing her to a prison term. The
dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky C. Ty, for her acts of
issuing seven (7) checks in payment of a valid obligation, which
turned unfounded on their respective dates of maturity, is found
441
guilty of seven (7) counts of violations of Batas Pambansa Blg.
22, and is hereby sentenced to suffer the penalty of imprisonment
of SIX MONTHS per count or a total of forty-two (42) months.
SO ORDERED. [13]
Ty interposed an appeal from the Decision of the trial
court. Before the Court of Appeals, Ty reiterated her
defense that she issued the checks under the impulse of
an uncontrollable fear of a greater injury or in avoidance of
a greater evil or injury. She also argued that the trial court
erred in finding her guilty when evidence showed there was
absence of valuable consideration for the issuance of the
checks and the payee had knowledge of the insufficiency
of funds in the account. She protested that the trial court
should not have applied the law mechanically, without due
regard to the principles of justice and equity. [14]
In its Decision dated 31 July 2001, the appellate court
affirmed the judgment of the trial court with modification. It
set aside the penalty of imprisonment and instead
sentenced Ty to pay a fine of sixty thousand pesos
(P60,000.00) equivalent to double the amount of the check,
in each case. [15]
In its assailed Decision, the Court of Appeals rejected
Tys defenses of involuntariness in the issuance of the
checks and the hospitals knowledge of her checking
accounts lack of funds. It held that B.P. 22 makes the mere
act of issuing a worthless check punishable as a special
offense, it being a malum prohibitum. What the law
punishes is the issuance of a bouncing check and not the
purpose for which it was issued nor the terms and
conditions relating to its issuance. [16]
Neither was the Court of Appeals convinced that there
was no valuable consideration for the issuance of the
442
checks as they were issued in payment of the hospital bills
of Tys mother. [17]
In sentencing Ty to pay a fine instead of a prison term,
the appellate court applied the case of Vaca v. Court of
Appeals wherein this Court declared that in determining
[18]
the penalty imposed for violation of B.P. 22, the philosophy
underlying the Indeterminate Sentence Law should be
observed, i.e., redeeming valuable human material and
preventing unnecessary deprivation of personal liberty and
economic usefulness, with due regard to the protection of
the social order. [19]
Petitioner now comes to this Court basically alleging
the same issues raised before the Court of Appeals. More
specifically, she ascribed errors to the appellate court
based on the following grounds:
A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT
PETITIONER WAS FORCED TO OR COMPELLED IN THE
OPENING OF THE ACCOUNT AND THE ISSUANCE OF
THE SUBJECT CHECKS.
B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF
AN UNCONTROLLABLE FEAR OF A GREATER INJURY
OR IN AVOIDANCE OF A GREATER EVIL OR INJURY.
C. THE EVIDENCE ON RECORD PATENTLY
SHOW[S] ABSENCE OF VALUABLE CONSIDERATION IN
THE ISSUANCE OFTHE SUBJECT CHECKS.
D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE
CHECKS WAS FULLY AWARE OF THE LACK OF
FUNDS IN THE ACCOUNT.
E. THE HONORABLE COURT OF APPEALS, AS WELL AS
THE HONORABLE TRIAL COURT [,] SHOULD NOT HAVE
APPLIED CRIMINAL LAW MECHANICALLY, WITHOUT
DUE REGARD TO THE PRINCIPLES OF JUSTICE AND
EQUITY.
In its Memorandum, the Office of the Solicitor General
[20]
(OSG), citing jurisprudence, contends that a check issued
as an evidence of debt, though not intended to be
presented for payment, has the same effect as an ordinary
check; hence, it falls within the ambit of B.P. 22. And when
a check is presented for payment, the drawee bank will
generally accept the same, regardless of whether it was
issued in payment of an obligation or merely to guarantee
said obligation. What the law punishes is the issuance of a
bouncing check, not the purpose for which it was issued
nor the terms and conditions relating to its issuance. The
mere act of issuing a worthless check is malum
prohibitum. [21]
We find the petition to be without merit and accordingly
sustain Tys conviction.
Well-settled is the rule that the factual findings and
conclusions of the trial court and the Court of Appeals are
entitled to great weight and respect, and will not be
disturbed on appeal in the absence of any clear showing
that the trial court overlooked certain facts or
circumstances which would substantially affect the
disposition of the case. Jurisdiction of this Court over
[22]
cases elevated from the Court of Appeals is limited to
reviewing or revising errors of law ascribed to the Court of
Appeals whose factual findings are conclusive, and carry
even more weight when said court affirms the findings of
the trial court, absent any showing that the findings are
totally devoid of support in the record or that they are so
glaringly erroneous as to constitute serious abuse of
discretion.
[23]
In the instant case, the Court discerns no compelling
reason to reverse the factual findings arrived at by the trial
court and affirmed by the Court of Appeals.
Ty does not deny having issued the seven (7) checks
subject of this case. She, however, claims that the
issuance of the checks was under the impulse of an
443
uncontrollable fear of a greater injury or in avoidance of a
greater evil or injury. She would also have the Court
believe that there was no valuable consideration in the
issuance of the checks.
However, except for the defenses claim of
uncontrollable fear of a greater injury or avoidance of a
greater evil or injury, all the grounds raised involve factual
issues which are best determined by the trial court. And, as
previously intimated, the trial court had in fact discarded
the theory of the defense and rendered judgment
accordingly.
Moreover, these arguments are a mere rehash of
arguments unsuccessfully raised before the trial court and
the Court of Appeals. They likewise put to issue factual
questions already passed upon twice below, rather than
questions of law appropriate for review under a Rule 45
petition.
The only question of law raisedwhether the defense of
uncontrollable fear is tenable to warrant her exemption
from criminal liabilityhas to be resolved in the negative. For
this exempting circumstance to be invoked successfully,
the following requisites must concur: (1) existence of an
uncontrollable fear; (2) the fear must be real and imminent;
and (3) the fear of an injury is greater than or at least equal
to that committed. [24]
It must appear that the threat that caused the
uncontrollable fear is of such gravity and imminence that
the ordinary man would have succumbed to it. It should
[25]
be based on a real, imminent or reasonable fear for ones
life or limb. A mere threat of a future injury is not
[26]
enough. It should not be speculative, fanciful, or
remote. A person invoking uncontrollable fear must show
[27]
therefore that the compulsion was such that it reduced him
to a mere instrument acting not only without will but against
his will as well. It must be of such character as to leave no
[28]
opportunity to the accused for escape. [29]
In this case, far from it, the fear, if any, harbored by Ty
was not real and imminent. Ty claims that she was
compelled to issue the checksa condition the hospital
allegedly demanded of her before her mother could be
dischargedfor fear that her mothers health might
deteriorate further due to the inhumane treatment of the
hospital or worse, her mother might commit suicide. This is
speculative fear; it is not the uncontrollable fear
contemplated by law.
To begin with, there was no showing that the mothers
illness was so life-threatening such that her continued stay
in the hospital suffering all its alleged unethical treatment
would induce a well-grounded apprehension of her
death. Secondly, it is not the laws intent to say that any
fear exempts one from criminal liability much less
petitioners flimsy fear that her mother might commit
suicide. In other words, the fear she invokes was not
impending or insuperable as to deprive her of all volition
and to make her a mere instrument without will, moved
exclusively by the hospitals threats or demands.
Ty has also failed to convince the Court that she was
left with no choice but to commit a crime. She did not take
advantage of the many opportunities available to her to
avoid committing one. By her very own words, she
admitted that the collateral or security the hospital required
prior to the discharge of her mother may be in the form of
postdated checks or jewelry. And if indeed she was
[30]
coerced to open an account with the bank and issue the
checks, she had all the opportunity to leave the scene to
avoid involvement.
Moreover, petitioner had sufficient knowledge that the
issuance of checks without funds may result in a violation
444
of B.P. 22. She even testified that her counsel advised her
not to open a current account nor issue postdated checks
because the moment I will not have funds it will be a big
problem. Besides, apart from petitioners bare assertion,
[31]
the record is bereft of any evidence to corroborate and
bolster her claim that she was compelled or coerced to
cooperate with and give in to the hospitals demands.
Ty likewise suggests in the prefatory statement of
her Petition and Memorandum that the justifying
circumstance of state of necessity under par. 4, Art. 11 of
the Revised Penal Code may find application in this case.
We do not agree. The law prescribes the presence of
three requisites to exempt the actor from liability under this
paragraph: (1) that the evil sought to be avoided actually
exists; (2) that the injury feared be greater than the one
done to avoid it; (3) that there be no other practical and
less harmful means of preventing it. [32]
In the instant case, the evil sought to be avoided is
merely expected or anticipated. If the evil sought to be
avoided is merely expected or anticipated or may happen
in the future, this defense is not applicable. Ty could have
[33]
taken advantage of an available option to avoid committing
a crime. By her own admission, she had the choice to give
jewelry or other forms of security instead of postdated
checks to secure her obligation.
Moreover, for the defense of state of necessity to be
availing, the greater injury feared should not have been
brought about by the negligence or imprudence, more so,
the willful inaction of the actor. In this case, the issuance
[34]
of the bounced checks was brought about by Tys own
failure to pay her mothers hospital bills.
The Court also thinks it rather odd that Ty has chosen
the exempting circumstance of uncontrollable fear and the
justifying circumstance of state of necessity to absolve her
of liability. It would not have been half as bizarre had Ty
been able to prove that the issuance of the bounced
checks was done without her full volition. Under the
circumstances, however, it is quite clear that neither
uncontrollable fear nor avoidance of a greater evil or injury
prompted the issuance of the bounced checks.
Parenthetically, the findings of fact in the Decision of
the trial court in the Civil Case for damages filed by Tys
[35]
mother against the hospital is wholly irrelevant for purposes
of disposing the case at bench. While the findings therein
may establish a claim for damages which, we may add,
In this case, Tys mother and sister availed of the
services and the facilities of the hospital. For the care given
to her kin, Ty had a legitimate obligation to pay the hospital
by virtue of her relationship with them and by force of her
signature on her mothers Contract of Admission
acknowledging responsibility for payment, and on the
promissory note she executed in favor of the hospital.
Anent Tys claim that the obligation to pay the hospital
bills was not her personal obligation because she was not
the patient, and therefore there was no consideration for
the checks, the case of Bridges v. Vann, et al. tells us that
[41]

need only be supported by a preponderance of evidence, it it is no defense to an action on a promissory note for the
does not necessarily engender reasonable doubt as to free maker to say that there was no consideration which was
Ty from liability. beneficial to him personally; it is sufficient if the
consideration was a benefit conferred upon a third person,
As to the issue of consideration, it is presumed, upon
or a detriment suffered by the promisee, at the instance of
issuance of the checks, in the absence of evidence to the
the promissor. It is enough if the obligee foregoes some
contrary, that the same was issued for valuable
right or privilege or suffers some detriment and the release
consideration. Section 24 of the Negotiable Instruments
[36] [37]

and extinguishment of the original obligation of George

Law creates a presumption that every party to an
Vann, Sr., for that of appellants meets the
instrument acquired the same for a consideration or for
[38]

requirement. Appellee accepted one debtor in place of

value. In alleging otherwise, Ty has the onus to prove that
[39]

another and gave up a valid, subsisting obligation for the

the checks were issued without consideration. She must
note executed by the appellants. This, of itself, is sufficient
present convincing evidence to overthrow the presumption.
consideration for the new notes.
A scrutiny of the records reveals that petitioner failed to
At any rate, the law punishes the mere act of issuing a
discharge her burden of proof. Valuable consideration may
bouncing check, not the purpose for which it was issued
in general terms, be said to consist either in some right,
nor the terms and conditions relating to its issuance. B.P. [42]

interest, profit, or benefit accruing to the party who makes

22 does not make any distinction as to whether the checks
the contract, or some forbearance, detriment, loss or some
within its contemplation are issued in payment of an
responsibility, to act, or labor, or service given, suffered or
obligation or to merely guarantee the obligation. The [43]

undertaken by the other aide. Simply defined, valuable

thrust of the law is to prohibit the making of worthless
consideration means an obligation to give, to do, or not to
checks and putting them into circulation. As this Court
[44]

do in favor of the party who makes the contract, such as

held in Lim v. People of the Philippines, what is primordial
[45]

the maker or indorser. [40]

is that such issued checks were worthless and the fact of

445
its worthlessness is known to the appellant at the time of
their issuance, a required element under B.P. Blg. 22.
The law itself creates a prima facie presumption of
knowledge of insufficiency of funds. Section 2 of B.P. 22
provides:
Section 2. Evidence of knowledge of insufficient funds.  The
making, drawing and issuance of a check payment of which is
refused by the drawee bank because of insufficient funds in or
credit with such bank, when presented within ninety (90) days
from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such
maker or drawer pays the holder thereof the amount due thereon,
or makes arrangements for payment in full by the drawee of such
check within five (5) banking days after receiving notice that
such check has not been paid by the drawee.
Such knowledge is legally presumed from the dishonor
of the checks for insufficiency of funds. If not rebutted, it
[46]
suffices to sustain a conviction.[47]
Petitioner likewise opines that the payee was aware of
the fact that she did not have sufficient funds with the
drawee bank and such knowledge necessarily exonerates
her liability.
The knowledge of the payee of the insufficiency or lack
of funds of the drawer with the drawee bank is immaterial
as deceit is not an essential element of an offense
penalized by B.P. 22. The gravamen of the offense is the
issuance of a bad check, hence, malice and intent in the
issuance thereof is inconsequential. [48]
In addition, Ty invokes our ruling in Magno v. Court of
Appeals wherein this Court inquired into the true nature of
[49]
transaction between the drawer and the payee and finally
acquitted the accused, to persuade the Court that the
446
circumstances surrounding her case deserve special
attention and do not warrant a strict and mechanical
application of the law.
Petitioners reliance on the case is misplaced. The
material operative facts therein obtaining are different from
those established in the instant petition. In the 1992 case,
the bounced checks were issued to cover a warranty
deposit in a lease contract, where the lessor-supplier was
also the financier of the deposit. It was a modus
operandi whereby the supplier was able to sell or lease the
goods while privately financing those in desperate need so
they may be accommodated. The maker of the check thus
became an unwilling victim of a lease agreement under the
guise of a lease-purchase agreement. The maker did not
benefit at all from the deposit, since the checks were used
as collateral for an accommodation and not to cover the
receipt of an actual account or credit for value.
In the case at bar, the checks were issued to cover the
receipt of an actual account or for value. Substantial
evidence, as found by the trial court and Court of Appeals,
has established that the checks were issued in payment of
the hospital bills of Tys mother.
Finally, we agree with the Court of Appeals in deleting
the penalty of imprisonment, absent any proof that
petitioner was not a first-time offender nor that she acted in
bad faith. Administrative Circular 12-2000, adopting the
[50]
rulings in Vaca v. Court of Appeals and Lim v. [51]
People, authorizes the non-imposition of the penalty of
[52]
imprisonment in B.P. 22 cases subject to certain
conditions. However, the Court resolves to modify the
penalty in view of Administrative Circular 13-2001 which[53]
clarified Administrative 12-2000. It is stated therein:
The clear tenor and intention of Administrative Circular No. 12-
2000 is not to remove imprisonment as an alternative penalty, but
to lay down a rule of preference in the application of the
penalties provided for in B.P. Blg. 22.
Thus, Administrative Circular 12-2000 establishes a rule of
preference in the application of the penal provisions of B.P. Blg.
22 such that where the circumstances of both the offense and the
offender clearly indicate good faith or a clear mistake of fact
without taint of negligence, the imposition of a fine alone should
be considered as the more appropriate penalty. Needless to say,
the determination of whether circumstances warrant the
imposition of a fine alone rests solely upon the Judge. Should the
judge decide that imprisonment is the more appropriate penalty,
Administrative Circular No. 12-2000 ought not be deemed a
hindrance.
It is therefore understood that: (1) Administrative
Circular 12-2000 does not remove imprisonment as an
alternative penalty for violations of B.P. 22; (2) the judges
concerned may, in the exercise of sound discretion, and
taking into consideration the peculiar circumstances of
each case, determine whether the imposition of a fine
alone would best serve the interests of justice, or whether
forbearing to impose imprisonment would depreciate the
seriousness of the offense, work violence on the social
order, or otherwise be contrary to the imperatives of justice;
(3) should only a fine be imposed and the accused unable
to pay the fine, there is no legal obstacle to the application
of the Revised Penal Code provisions on subsidiary
imprisonment. [54]
WHEREFORE, the instant Petition is DENIED and the
assailed Decision of the Court of Appeals, dated 31 July
2001, finding petitioner Vicky C. Ty GUILTY of violating
Batas Pambansa Bilang 22 is AFFIRMED with
MODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to
pay a FINE equivalent to double the amount of each
dishonored check subject of the seven cases at bar with
447
subsidiary imprisonment in case of insolvency in
accordance with Article 39 of the Revised Penal Code. She
is also ordered to pay private complainant, Manila Doctors
Hospital, the amount of Two Hundred Ten Thousand
Pesos (P210,000.00) representing the total amount of the
dishonored checks. Costs against the petitioner.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, and Callejo, Sr.,
JJ., concur.
Chico-Nazario, J., on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18660 December 22, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FELIPE DELIMA, defendant-appellant.
Tancinco & Rosales for appellant.
Attorney-General Villa-Real for appellee.
ROMUALDEZ, J.:
Lorenzo Napilon had escaped from the jail where he was serving sentence.
Some days afterwards the policeman Felipe Delima, who was looking for
him, found him in the house of Jorge Alegria, armed with a pointed piece of
bamboo in the shape of a lance, and demanded his surrender. The fugitive
answered with a stroke of his lance. The policeman dodged, it, and to
impose his authority fired his revolver, but the bullet did not hit him. The
criminal ran away, without parting with his weapon. These peace officer
went after him and fired again his revolver, this time hitting and killing him.
The policeman was tried and convicted for homicide and sentenced advantage of nighttime, employing means to
to reclusion temporal and the accessory penalties. He appeals from that
judgment which must be reversed.
insure or afford impunity, with the use of high
powered firearm, and with intent to kill, did then
That killing was done in the performance of a duty. The deceased was and there willfully, unlawfully, feloniously,
under the obligation to surrender, and had no right, after evading service of suddenly, unexpectedly and without any
his sentence, to commit assault and disobedience with a weapon in the
hand, which compelled the policeman to resort to such an extreme means,
warning, attack, fire and shoot successively
which, although it proved to be fatal, was justified by the circumstances.
lawphil.net
with an armalite rifle (M-16) FERNANDO B.
BATALLER while the latter was intoxicated,
Article 8, No. 11, of the Penal Code being considered, Felipe Delima thereby hitting and inflicting upon him multiple
committed no crime, and he is hereby acquitted with the costs de oficio. So
ordered.
serious and mortal wounds on his head, at the
right lower face, the chest (front) at the left
Araullo C.J., Street. Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ., antero lateral approximately 5 cm. below but
concur. lateral to the left nipple, at the left lateral
waistline, thereby lacerating the liver, hitting
SECOND DIVISION the stomach portions of the large and small
intestines and lower vertebrae, and the chest
[G.R. No. 124670. June 21, 2000] (back) at the middle back and another at the
left back, lateral level of the lower rib, which
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
caused Fernando B. Batallers direct and
vs. PATROLMAN DOMINGO BELBES, accused-
instantaneous death, to the damage and
appellant.
prejudice of his legal heirs.
DECISION
ACTS CONTRARY TO LAW." [1]

QUISUMBING, J.:
When arraigned, he pleaded not guilty.
Before the Regional Trial Court of Tabaco, Albay, Branch
The facts established during trial by the prosecution is
18, Patrolman Domingo Belbes stood charged of Murder.
summarized by the appellee in its brief, thus:
The information against him reads:
"In the evening of February 16, 1990, appellant
"That on or about the 16th of February, 1990 at
Pat. Domingo Belbes and Pat. Jose Pabon
9:00 oclock in the evening, more or less, inside
were assigned by the Bacacay Station
the campus of Pili National High School, at
Commander to maintain peace and order at
Barangay Pili, Municipality of Bacacay,
the Junior and Senior Prom of Pili Barangay
Province of Albay, Philippines and within the
High School, Pili, Bacacay, Albay.
jurisdiction of this Honorable Court, the above-
named accused, with treachery, taking
448
Around 9:00 p.m. while Teacher-In-Charge
Mila Ulanca, appellant, Pat. Pabon and Elmo
Bes were watching the dance, two students,
Riselle Banares and Juliana Basaysay,
approached Mrs. Ulanca and said "Mam, it
seems that there is somebody making trouble."
Appellant and Pat. Pabon, armed with an
armalite rifle and a .38 caliber revolver,
respectively, responded forthwith. Moments
after the two police officers left, bursts of
gunfire-- "Rat-tat-tat-tat-tat" filled the air.
Fernando Bataller, a graduating student of Pili
Barangay High School, was hit on different
parts of his body and died.
Moments before the gruesome incident,
Fernando Bataller, then drunk, was in the
company of Carlito Bataller and Rosalio
Belista. While Fernando was vomiting and
holding on to the bamboo wall of the schools
temporary building, the bamboo splits broke. At
this instance, appellant and Pat. Pabon
appeared. Without warning, appellant fired his
gun. Fernando slumped on the ground, bathed
with his own blood. Appellant and Pat. Pabon
fled from the crime scene.
Fernando was pronounced dead on arrival at
the hospital. As shown in the autopsy report,
Fernando suffered the following gunshot
wounds: (1) head, located at the right lower
face, skin, muscles, blood vessels, nerves,
bone torn away; (2) chest (front, located at left,
antero lateral approximately 5 cm. below but
lateral to the left nipple, another gunshot
wound on the same location with tattooing
449
located at left lateral waistline; (3) chest (back)
located at the middle back at the level of the
lowest rib, skin and superficial muscles torn
away, another gunshot wound located at the
left back, lateral level of the lowest rib, with
tattooing. (Citations omitted)"[2]
In his defense, the accused-appellant presented his
version of the fatal incident, summed up by the trial court
as follows:
"The accused, Domingo Belbes in his defense
testified that he was at Pili Barangay High
School with P/Cpl. Jose Pabon because they
were detailed by their Station Commander. x x
x At 9:00 p.m. two female students reported to
them and Mrs. Ulanca that somebody was
making trouble at the back of the temporary
building. They were requested by Mrs. Ulanca
to see what happened and they went to the
place. There they came upon somebody who
was making trouble and destroying the wall of
the temporary building. He came to know that it
was Fernando Bataller. Fernando Bataller had
some companions, Carlito Bataller and certain
Belista. Fernando Bataller was more than 20
years old at that time and Carlito was about
Fernandos age. He saw Fernando destroying
the wall of the temporary building which was
made of bamboo splits. Pabon was in front of
him. The two companions were prevailing upon
Fernando. Fernando was drunk or a little bit
tipsy. He was not vomiting but he smelled of
wine. They approached Fernando and
identified themselves as policemen. Fernando
did not mind them. Fernando stabbed Pabon
 with a knife. Belbes knew because he saw the
glint of the blade when the thrust was made on
Pabon. Pabon and Bataller were about one (1)
meter away from each other. Pabon was not
hit, for he was able to move backward.
Fernando made two thrusts on Pabon. After
Pabon retreated because of the knife thrusts,
he (Belbes) was also stabbed by Fernando. He
was hit on his lower left shoulder. He was able
to hold Fernandos hand because he wanted to
get the knife from him. His firearm was slung
on his shoulder. Fernando was able to free
himself. Fernando made another thrust and
Belbes moved to his left. Then he made a
warning shot. After the warning shot, Fernando
suddenly grabbed his firearm. Belista was quite
aggressive at that moment, while Carlito
wanted to kick him. Fernando was able to hold
the barrel of the armalite. They struggled with
each other and the gun went off considering
that his armalite was semi-automatic, with one
squeeze of the trigger one shot came out.
During the process of grappling for the armalite
he could not recall how many shots came out.
When his service armalite went off he saw
Fernando fall to the ground. When Fernando
fell, he took the knife from his hand. The
people gathered around them. They asked that
Fernando be brought to the hospital. After one
hour, the police mobile car arrived. They
proceeded to the Police Station. There they
turned over the knife to the Desk Officer. The
knife is now with the Provincial Command." [3]
Defense witness Jose Pabon, also a policeman, who was
present when the incident happened, corroborated the
450
testimony of the appellant. However, on cross-examination,
Pabon belied the fact that the appellant fired a warning
shot. Pabon likewise failed to mention anything about
aggression on the part of the companions of the deceased,
namely Carlito Bataller and Rosalio Belista. He only
recalled that said companions ganged up on Belbes after
he shot the deceased.
Finding the defense weak, while the evidence for the
prosecution sufficiently strong, the trial court convicted the
appellant of murder and sentenced him to reclusion
perpetua.
In this appeal, counsel de oficio raised one issue:
WAS THE TRIAL [Court] CORRECT IN
HOLDING ACCUSED-APPELLANT GUILTY
OF MURDER? [4]
We shall now consider this matter as well as the more
basic issues of self-defense claimed by appellant and the
credibility of the witness for the prosecution. Appellant
policeman admits firing the fatal gunshots that hit the
deceased student. But he claims that he did so in self-
defense. He contends that he was only performing his
official functions when he responded in the course of police
duties to the information that somebody was making
trouble and disturbing the peace. Being in charge of
maintaining peace and order within the vicinity, he
ascertained the veracity of the information given by the
students concerned. He asserts that in the absence of
intent and voluntariness, he cannot be faulted for the death
of the deceased.
At the outset, we note that appellant questions the
credibility of the sole eye-witness for the prosecution,
Carlito Bataller. He states that Carlito is the cousin and
friend of the deceased. In his view, Carlito had strong
motive to falsely testify against him. Moreover, appellant
says that Carlito kindled some moral guilt because he
contributed to the sudden death of his cousin. Appellant
alleges that if only Carlito had prevailed over Fernando
(instead of tolerating the hostility of the deceased), he
could have prevented the shooting incident.
Regrettably, appellant offers no material evidence to
sufficiently support his claim of self-defense on the face of
mortal danger while on police duty. The cross-examination
of Carlito Bataller did not bear out his averments of
fraternal bias and psychological guilt or moral taint in
Carlitos testimony. The testimony of the single witness, if
positive and clear, is sufficient to sustain a judgment of
conviction, even in a charge for murder. Moreover, when
[5]
the issue boils down to the credibility of witnesses, the
findings of the trial court deserve great respect since it is in
a better position to observe the demeanor of the witnesses
while testifying in court, and to discern its dimensions, both
verbal and non-verbal. The relationship of a witness to the
[6]
victim does not necessarily diminish the formers
credibility.[7]
It is a settled rule that the findings and conclusions of the
trial court on the credibility of a witness deserve respect
because it is in a better position to determine whether the
witness was telling the truth or not, having observed the
demeanor of the witness while testifying on the witness
stand. In the case at bar, there appears to be no cogent
[8]
reason why we should not adhere to this rule.
Where the accused owns up to killing the victim in self-
defense, the burden of evidence shifts to him. He must
show by clear and convincing evidence that he indeed
451
acted in self-defense, or in defense of a relative or a
stranger. To prove self-defense, the accused must show
[9]
with clear and convincing evidence, that: (1) he is not the
unlawful aggressor; (2) there was lack of sufficient
provocation on his part; and (3) he employed reasonable
means to prevent or repel the aggression. Self-defense,
like alibi, is a defense which can easily be concocted. It is
well settled in this jurisdiction that once an accused had
admitted that he inflicted the fatal injuries on the deceased,
it was incumbent upon him, in order to avoid criminal
liability, to prove the justifying circumstance claimed by him
with clear, satisfactory and convincing evidence. He cannot
rely on the weakness of the prosecution but on the strength
of his own evidence, "for even if the evidence of the
prosecution were weak it could not be disbelieved after the
accused himself had admitted the killing." [10]
Appellant testified that upon responding to the report of two
students, he and Patrolman Pabon, saw Fernando Bataller
destroying the bamboo wall of the schools temporary
building. Fernando appeared to be drunk and a little bit
tipsy. They approached Fernando and identified
themselves as policemen but the former ignored them.
Instead, Fernando lunged with a knife at Patrolman Pabon
but the latter avoided the thrust. Afterwards, Fernando also
stabbed the appellant and hit his left shoulder. As another
thrust was coming, appellant claims he fired a warning
shot. Fernando grabbed the armalite and they struggled
until the gun went off hitting Fernando, according to
appellant.
We have serious questions on accused-appellants claim of
self-defense, on his part, against the alleged
aggressiveness of the deceased student. First, why was
the knife allegedly used by the deceased mis-handled? It
was not even subjected to fingerprinting. Second, why was
the wound on appellants shoulder medically examined only
after the lapse of more than twenty-one hours? Was it
possibly self-inflicted? According to the doctor who
examined him, Dr. Evelyn Amador, it was a
possibility. Lastly, as observed by the trial court, if it was
[11]
true that they grappled face to face with each other, why
was the victim hit sideways, as testified to by Amador?
The time factor here appears significant. Mrs. Mila Ulanca
testified that it only took about six seconds from the time
Patrolman Belbes left his seat until she heard the burst of
gunshots. This testimony is not contradicted or rebutted.
[12]
Thus, appellants claim of self-defense could not prosper.
The evidence on record, however, reveals an incomplete
justifying circumstance defined in Article 11, paragraph
number 5 of the Revised Penal Code. A person incurs no
[13]
criminal liability when he acts in the fulfillment of a duty or
in the lawful exercise of a right or office. But we must stress
there are two requisites for this justifying circumstance: (a)
that the offender acted in the performance of a duty or in
the lawful exercise of a duty or in the lawful exercise of a
right: and (b) that the injury or offense committed be the
necessary consequence of the due performance of such
right or office. In the instant case, only the first requisite is
[14]
present; admittedly appellant acted in the performance of
his duty. However, the second requisite is lacking, for the
killing need not be a necessary consequence of the
performance of his duty. His duty is to maintain peace and
order during the Junior and Senior Prom. But he exceeded
such duty, in our view, when he fired his armalite without
warning. No doubt, the concept of mitigating circumstances
is founded on leniency in favor of an accused who has
shown less perversity in the commission of an
offense. Though his protestation of innocence is
[15]
452
unavailing, his offense could only be characterized as
homicide, not murder, as hereafter shown.
On one hand, treachery did not attend the commission of
the crime as to rule out murder. Treachery cannot be
presumed but must be proved by clear and convincing
evidence as conclusively as the killing itself. For the same
to be considered as a qualifying circumstance, two
conditions must concur: (a) the employment of means,
method or manner of execution which would ensure the
safety of the malefactor from defensive or retaliatory acts
on the part of the victim, no opportunity being given the
latter to defend himself or to retaliate; and (b) the means,
method or manner of execution were deliberately or
consciously adopted by the offender. There is no showing
[16]
that the shooting was premeditated or that appellant, in
shooting the victim, employed means, methods or forms to
ensure its execution, without risk to himself arising from the
defense which the offended victim might make. Likewise,
mere suddenness of the attack does not necessarily imply
treachery. [17]
On the other hand, the offense is definitely not reckless
imprudence resulting in homicide because the shooting
was intentional. Illustrations of reckless imprudence
[18]
resulting in homicide are: (1) exhibiting a loaded revolver to
a friend, who was killed by the accidental discharge
brought about by negligent handling; or (2) discharging a
[19]
firearm from the window of ones house and killing a
neighbor who just at the moment leaned over the balcony
front; or (3) where the defendant, to stop a fist fight, fired
[20]
his .45 caliber pistol twice in the air, and, as the bout
continued, he fired another shot at the ground, but the
bullet ricocheted and hit a bystander who died soon
thereafter. In this case, appellant intended to fire AT the
[21]
victim, and in fact hit ONLY the victim.
We conclude that appellant is guilty only of homicide,
mitigated by the incomplete justifying circumstance of
fulfillment of duty. The penalty for homicide is reclusion
temporal. There being one mitigating circumstance, the
maximum of the penalty should be reclusion temporal in its
minimum period, which is 12 years and 1 day to 14 years
and 8 months. Applying the indeterminate sentence law,
the minimum of said penalty should be taken from prision
mayor.
WHEREFORE, the decision of the trial court convicting
appellant Domingo Belbes of the crime of murder is hereby
MODIFIED. Appellant is found guilty of the crime of
homicide and sentenced to an indeterminate penalty of
eight (8) years of prision mayor minimum, as minimum, to
fourteen (14) years of reclusion temporal minimum, as
maximum. He is also ordered to pay the heirs of the victim
the amount of P50,000.00 as civil indemnity and
P20,000.00 as moral damages, and to pay the costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr.,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4445 February 28, 1955
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO,
and JACINTO ADRIATICO, defendants-appellants.
453
Agripino A. Brillantes, Valera, Eufemio and Bernardez for appellants.
Prospero C. Sanidad and Claro M. Recto for defendant.
Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R. de los
Angeles and Martiniano P. Vivo for appellee.
REYES, J.B.L., J.:
This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, Filipino
Velasco, and Jacinto Adriatico from the judgment of the Court of First
Instance of Abra (Criminal Case No. 70) convicting them of murder for the
execution of Arsenio Borjal in the evening of April 18, 1945, in the town of
La Paz , Province of Abra.
Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of
war, and continued to serve as Mayor during the Japanese occupation, until
March 10, 1943, when he moved to Bangued because of an attempt upon
his life by unknown persons. On December 18, 1944, appellant Manuel
Beronilla was appointed Military Mayor of La Paz by Lt. Col. R. H. Arnold,
regimental commander of the 15th Infantry, Philippine Army, operating as a
guerrilla unit in the province of Abra. Simultaneously with his appointment as
Military Mayor, Beronilla received copy of a memorandum issued by Lt. Col.
Arnold to all Military Mayors in Northern Luzon, authorizing them "to appoint
a jury of 12 bolomen to try persons accused of treason, espionage, or the
aiding and abetting (of ) the enemy" (Exhibit 9). He also received from the
Headquarters of the 15th Infantry a list of all puppet government officials of
the province of Abra (which included Arsenio Borjal, puppet mayor of La
Paz), with a memorandum instructing all Military Mayors to investigate said
persons and gather against them complaints from people of the municipality
for collaboration with the enemy (Exhibit 12-a).
Sometime in March, 1945, while the operations for the liberation of the
province of Abra were in progress, Arsenio Borjal returned to La Paz with
his family in order to escape the bombing of Bangued. Beronilla, pursuant to
his instructions, placed Borjal under custody and asked the residents of La
Paz to file complaints against him. In no time, charges of espionage, aiding
the enemy, and abuse of authority were filed against Borjal; a 12-man jury
was appointed by Beronilla, composed of Jesus Labuguen as chairman, and
Benjamin Adriatico, Andres Afos, Juanito Casal, Santiago Casal, Benjamin
Abella, Servillano Afos, Mariano Ajel, Felimon Labuguen, Felix Murphy,
Pedro Turqueza, and Delfin Labuguen as members; while Felix Alverne and
Juan Balmaceda were named prosecutors, Policarpio Paculdo as clerk of
the jury, and Lino Inovermo as counsel for the accused. Later, Atty. Jovito
Barreras voluntarily appeared and served as counsel for Borjal. Sgt.
Esteban Cabanos observed the proceedings for several days upon
instructions of Headquarters, 15th Infantry. The trial lasted 19 days up to
April 10, 1945; the jury found Borjal guilty on all accounts and imposed upon
him instruction from his superiors. Mayor Beronilla forwarded the records of 22 April 1945
the case to the Headquarters of the 15th Infantry for review. Said records
were returned by Lt. Col. Arnold to Beronilla on April 18, 1945 with the
following instructions: Msg. No. 398
Subject: Report and information Re Borjal case
HEADQUARTERS 3RD MILITARY DISTRICT To: Military Mayor Beronilla
15TH INFANTRY, USAFIP
In the Field 1. Received your letter dated 18 April 1945, subject, above.
2. My request that you withhold action in this case was only dictated
16 April 1945 because of a query from Higher Headquarters regarding same.
Actually, I believe there was no doubt as to the treasonable acts of
the accused Arsenio Borjal and I know that your trial was absolutely
Msg. No. 337 impartial and fair. Consequently, I Can only compliment you for your
Subject: Arsenio Borjal, Charges Against impartial independent way of handling the whole case.
To: Military Mayor of La Paz, Abra.
(Sgd.) R. H. ARNOLD
1. Returned herewith are the papers on the case of Arsenio Borjal. Lieut.-Colonel, 15th Inf., PA
2. This is a matter best handled by your government and whatever Commanding
disposition you make of the case is hereby approved.

Received April 26, 1947 7:00 a.m.

(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
(Sgd.) MANUEL BERONILLA
Commanding Military Mayor, La Paz, Abra

Received April 18, 1945, 10:35 a.m. (Exhibit 21, 21-a)

(Sgd.) MANUEL BERONILLA Two years thereafter, Manuel Beronilla as military mayor, Policarpio
Military Mayor, La Paz, Abra Paculdo as Clerk of the jury, Felix Alverne and Juan Balmaceda as
prosecutors, Jesus Labuguen, Delfin Labuguen, Filemon Labuguen,
(Exhibit 8, 8-a) Servillano Afos, Andres Afos, Benjamin Adriatico, Juanito Casel, Santiago
Casel, Mariano Ajel, Felix Murphy, Benjamin Abella, and Pedro Turqueza as
and on the night of the same day, April 18, 1945, Beronilla ordered the members of the jury, Jacinto Adriatico as executioner, Severo Afos as grave
execution of Borjal. Jacinto Adriatico acted as executioner and Antonio digger, and Father Filipino Velasco as an alleged conspirator, were indicted
Palope as grave digger. Father Luding of the Roman Catholic Church was in the Court of First Instance of Abra for murder, for allegedly conspiring and
asked to administer the last confession to the prisoner, while Father Filipino confederating in the execution of Arsenio Borjal. Soon thereafter, the late
Velasco of the Aglipayan Church performed the last rites over Borjal's President Manuel A. Roxas issued Executive Proclamation No. 8, granting
remains. Immediately after the execution, Beronilla reported the matter to amnesty to all persons who committed acts penalized under the Revised
Col. Arnold who in reply to Beronilla's report, sent him the following Penal Code in furtherance of the resistance to the enemy against persons
message: aiding in the war efforts of the enemy. Defendant Jesus Labuguen, then a
master sergeant in the Philippine Army, applied for and was granted
amnesty by the Amnesty Commission, Armed Forces of the Philippines
HEADQUARTERS 3RD MILITARY DISTRICT
(Records, pp. 618-20). The rest of the defendant filed their application for
15TH INFANTRY, USAFIP
amnesty with the Second Guerrilla Amnesty Commission, who denied their
In the Field
application on the ground that the crime had been inspired by purely
454
personal motives, and remanded the case to the Court of First Instance of
Abra for trial on the merits.
Upon motion of defense counsel, the case against defendant Jesus
Labuguen, who had been granted amnesty by the Amnesty Commission of
the Armed Forces of the Philippines, was ordered provisionally dismissed:
defendant Juan Balmaceda was discharged from the information so that he
might be utilized as state witness, although actually he was not called to
testify; while the case against defendants Antonio Palope (the grave digger)
and Demetrio Afos( a boloman) was dismissed for lack of sufficient
evidence.
Trial proceeded against the rest of the defendants; and on July 10, 1950,
the Court below rendered judgment, acquitting the members of the jury and
the grave digger Antonio Palope on the ground that they did not participated
in the killing of Arsenio Borjal; acquitting defendants Jesus Labuguen, Felix
Alverne, Severo Afos, and Lauro Parado upon insufficiency of evidence to
establish their participation in the crime; but convicting defendants Manuel
Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico as
conspirator and co-principals of the crime of murder, and sentencing them to
suffer imprisonment of from 17 years, 4 months and 1 day of reclusion
temporal to reclusion perpetua, to indemnify the heirs of Arsenio Borjal
jointly and severally in the amount of P4,000 with subsidiary imprisonment in
case of insolvency, and each to pay one fourth of the costs. In convicting
said defendants the Court a quo found that while the crime committed by
them fell within the provisions of the Amnesty Proclamation, they were not
entitled to the benefits thereof because the crime was committed after the
expiration of the time limit fixed by the amnesty proclamation;: i.e., that the
deceased Arsenio Borjal was executed after the liberation of La Paz, Abra.
In view of the sentence meted by the Court below, the accused Beronilla,
Paculdo, Velasco and Adriatico appealed to this Court.
The records are ample to sustain the claim of the defense that the arrest,
prosecution and trial of the late Arsenio Borjal were done pursuant to
express orders of the 15th Infantry Headquarters. (Exhibit 9 and 12-a),
instructing all military mayors under its jurisdiction to gather evidence
against puppet officials and to appoint juries of at least 12 bolomen to try the
accused and find them guilty by two thirds vote. It is to be noted that Arsenio
Borjal was specifically named in the list of civilian officials to be prosecuted
(Exhibit 12-b).
In truth, the prosecution does not seriously dispute that the trial and
sentencing of Borjal was done in accordance with instructions of superior
military authorities, altho it point to irregularities that were due more to
455
ignorance of legal processes than personal animosity against Borjal. The
state, however, predicates its case principally on the existence of the
radiogram Exhibit H from Col. Volckmann, overall area commander, to Lt.
Col. Arnold, specifically calling attention to the illegality of Borjal's conviction
and sentence, and which the prosecution claims was known to the accused
Beronilla. Said message is as follows:
"Message:
VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT
MUNICIPALITIES OF ABRA HAVE ORGANIZED JURY SYSTEM
PD BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY
PUNISHMENTS THEREOF PD SPECIFIC INSTANCE IS
BROUGHT TO YOUR ATTENTION FRO PROPER AND
IMMEDIATE ACTION ON ONE ARSENIO BORJAL OF LA PAZ
WHO HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO
BE HANGED PD REPORT ACTION TAKEN BY YOU ON THIS
MATTER PD MSG BEGINS CLN"
(EXH. H)
The crucial question thus becomes whether or not this message, originally
sent to Arnold's quarters in San Esteban, Ilocos Sur, was relayed by the
latter to appellant Beronilla in La Paz, Abra, on the morning of April 18,
1945, together with the package of records of Borjal's trial that was
admittedly returned to and received by Beronilla on that date, after review
thereof by Arnold (Exhibit 8-8-a). Obviously, if the Volckmann message was
known to Beronilla, his ordering the execution of Borjal on the night of April
18, 1945 can not be justified.
We have carefully examined the evidence on this important issue, and find
no satisfactory proof that Beronilla did actually receive the radiogram Exhibit
H or any copy thereof. The accused roundly denied it. The messenger, or
"runner", Pedro Molina could not state what papers were enclosed in the
package he delivered to Beronilla on that morning in question, nor could
Francisco Bayquen (or Bayken), who claimed to have been present at the
delivery of the message, state the contents thereof.
The only witness who asserted that Beronilla received and read the
Volckmann message, Exhibit H, was Rafael Balmaceda, a relative of Borjal,
who claimed to have been, as Beronilla's bodyguard, present at the receipt
of the message and to have read it over Beronilla's shoulder. This
testimony, however, can not be accorded credence, for the reason that in
the affidavit executed by this witness before Fiscal Antonio of Abra (Exhibit
4), Balmaceda failed to make any mention of the reading, or even the
receipt, of the message. In the affidavit, he stated:
Q. In your capacity as policeman, do you know of any usual
occurrence that transpired in La Paz, Abra? — A. Yes, sir.
Q. Will you state what is the event? — A. On April 17, 1945, I was
assigned as guard at the Presidencia where Mayor Arsenio Borjal is
confined. On the 18th of April, 1945, six bolomen came to me while I
was on duty as guard, that Mayor Borjal should be tied, on orders of
Mayor Beronilla, Mayor Borjal wanted to know the reason why he
would be tied, as he had not yet learned of the decision of the jury
against him. Mayor Borjal wrote a note to Mayor Beronilla, asking
the reason for his being ordered to be tied. I personally delivered the
note of Borjal to Mayor Beronilla. Mayor Beronilla did not answer the
note, but instead told me that I should tie Mayor Borjal, as tomorrow
he would die, as he cannot escape. I returned to the Presidencia,
and Mayor Borjal was tied, as that was the ordered of Mayor
Beronilla.
The plain import of the affidavit is that the witness Rafael Balmaceda was
not with Beronilla when the message arrived, otherwise Beronilla would
have given him his orders direct, as he (Balmaceda) testified later at the
trial. Moreover, it is difficult to believe that having learned of the contents of
the Volckmann message, Balmaceda should not have relayed it to Borjal ,
or to some member of the latter's family, considering that they were
relatives. In addition to Balmaceda was contradicted by Bayken, another
prosecution witness, as to the hatching of the alleged conspiracy to kill
Borjal. Balmaceda claimed that the accused-appellants decided to kill Borjal
in the early evening of April 18, while Bayken testified that the agreement
was made about ten o'clock in the morning, shortly after the accused had
denied Borjal's petition to be allowed to hear mass.
Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann
message. Had he executed Borjal in violation of superior orders, he would
not have dared to report it to Arnold's headquarters on the very same day,
April 18th, 1945, as he did (Exhibit 20), half an hour after the execution. And
what is even more important, if Borjal was executed contrary to instructions,
how could Lt. Colonel Arnold on April 21, 1945, write in reply (Exhibit 21, 21-
a) "I can only compliment you for your impartial but independent way of
handling the whole case" instead of berating Beronilla and ordering his court
martial for disobedience?
Our conclusion is that Lt. Col. Arnold, for some reason that can not now be
ascertained, failed to transmit the Volckmann message to Beronilla. And this
456
being so, the charge of criminal conspiracy to do away with Borjal must be
rejected, because the accused had no need to conspire against a man who
was, to their knowledge, duly sentenced to death.
The state claims that the appellants held grudges against the late Borjal.
Even so, it has been already decided that the concurrence of personal
hatred and collaboration with the enemy as motives for a liquidation does
not operate to exclude the case from the benefits of the Amnesty claimed by
appellants, since then "it may not be held that the manslaughter stemmed
from purely personal motives" (People vs. Barrioquinto,* G. R. Nos. L-
2011 and 2267, June 30, 1951). Actually, the conduct of
the appellants does not dispose that these appellants were
impelled by malice (dolo). The arrest and trial of Borjal
were made upon express orders of the higher command;
the appellants allowed Borjal to be defended by counsel,
one of them (attorney Jovito Barreras) chosen by Borjal's
sister; the trial lasted nineteen (19) days; it was suspended
when doubts arose about its legality, and it was not
resumed until headquarters (then in Langangilang, Abra)
authorized its resumption and sent an observer (Esteban
Cabanos, of the S-5) to the proceedings, and whose
suggestions on procedure were followed; and when the
verdict of guilty was rendered and death sentence
imposed, the records were sent to Arnold's headquarters
for review, and Borjal was not punished until the records
were returned eight days later with the statement of Arnold
that "whatever disposition you make of the case is hereby
approved" (Exhibit 8), which on its face was an assent to
the verdict and the sentence. The lower Court, after finding
that the late Arsenio Borjal had really committed
treasonable acts, (causing soldiers and civilians to be
tortured, and hidden American officers to be captured by
the Japanese) expressly declared that "the Court is
convinced that it was not for political or personal reason
that the accused decided to kill Arsenio Borjal" (Decision,
p. 9; Record, p. 727).
It appearing that the charge is the heinous crime of murder, and that the
accused-appellants acted upon orders, of a superior officers that they, as
military subordinates, could not question, and obeyed in good faith, without
being aware of their illegality, without any fault or negligence on their part,
we can not say that criminal intent has been established (U. S. vs. Catolico,
18 Phil., 507; Peo. vs. Pacana, 47 Phil., 48; Sent. of the Tribunal Supremo
of Spain, 3 July 1886; 7 January 1901; 24 March 1900; 21 Feb. 1921; 25
March 1929). Actus non facit reum nisi mens si rea.
To constitute a crime, the act must, except in certain crimes made
such by statute, be accompanied by a criminal intent, or by such
negligence or indifference to duty or to consequence, as, in law, is
equivalent to criminal intent. The maxim is, actus non facit reum, nisi
mens rea-a crime is not committed if the minds of the person
performing the act complained of be innocent. (U. S. vs. Catolico, 18
Phil., 507).
But even assuming that the accused-appellant did commit crime with they
are charged, the Court below should not have denied their claim to the
benefits of the Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz., 2072)on
the ground that the slaying of Arsenio Borjal took place after actual liberation
of the area from enemy control and occupation. The evidence on record
regarding the date of liberation of La Paz, Abra, is contradictory. The Military
Amnesty Commission that decided the case of one of the original accused
Jesus Labuguen, held that La Paz, Abra, was liberated on July 1, 1945,
according to its records; and this finding was accepted by Judge Letargo
when he dismissed the case against said accused on March 15, 1949. On
the other hand, Judge Bocar and Hilario, who subsequently took cognizance
of the case, relied on Department Order No. 25, of the Department of the
Interior, dated August 12, 1948, setting the liberation of the Province of Abra
on April 4, 1945, fifteen days before Borjal was slain. The two dates are not
strictly contradictory; but given the benefit of the Presidential directive to the
Amnesty Commissions (Adm. Order No. 11, of October 2, 1946) that "any
reasonable doubt as to whether a given case falls within the (amnesty)
proclamation shall be resolved in favor of the accused" (42 Off. Gaz., 2360),
as was done in People vs. Gajo, Phil., 107 46 Off. Gaz., (No. 12) p. 6093.
For the reasons stated, the judgment appealed from is reversed and the
appellants are acquitted, with costs de oficio.
Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo,
Bautista Angelo and Concepcion, JJ., concur.
457
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45130 February 17, 1937
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CELESTINO BONOAN Y CRUZ, defendant-appellant.
Paulino Sevilla, Fernando Arce and Gaudencio Garcia for appellant.
Undersecretary of Justice for appellee.
LAUREL, J.:
On January 5, 1935, the prosecuting attorney of the City of Manila filed an
information charging Celestino Bonoan, the defendant-appellant herein, with
the crime of murder, committed as follows:
That on or about the 12th day of December, 1934, in the City of
Manila, Philippine Islands, the said accused, with evident
premeditation and treachery, did then and there willfully, unlawfully
and feloniously, without any justifiable motive and with the decided
purpose to kill one Carlos Guison, attack, assault and stab the said
Carlos Guison on the different parts of his body with a knife, thereby
inflicting upon him the following injuries, to wit:
"One stab wound at the right epigastric region penetrating one cm.
into the superior surace of the right lobe of the liver; and three non-
penetrating stab wounds located respectively at the posterior and
lateral lumbar region, and left elbow", which directly caused the
death of the said Carlos Guison three days afterwards.
On January 16, 1935, the case was called for the arraignment of the
accused. The defense counsel forthwith objected to the arraignment on the
ground that the defendant was mentally deranged and was at the time
confined in the Psychopatic Hospital. The court thereupon issued an order
requiring the Director of the Hospital to render a report on the mental
condition of the accused. Accordingly, Dr. Toribio Joson, assistant alientist,
rendered his report,Exhibit 4, hereinbelow incorporated. On March 23, 1935,
the case was again called for the arraignment of the accused, but in view of
the objection of the fiscal, the court issued another order requiring the doctor
of the Psyhopatic Hospital who examined the defendant to appear and
produce the complete record pertaining to the mental condition of the said
defendant. Pursuant to this order, Dr. Toribio Joson appeared before the
court on March 26, 1935 for the necessary inquiry. Thereafter, the
prosecution and the defense asked the court to summon the other doctors
of the hospital for questioning as to the mental condition of the accused, or
to place the latter under a competent doctor for a closer observation. The
trial court then issued an order directing that the accused be placed under
the chief alienist or an assistant alienist of the Psychopatic Hospital for his
personal observation and the subsequent submission of a report as to the
true mental condition of the patient. Dr. Jose A. Fernandez, assistant alienist
of the Psychopathic Hospital, rendered his report, Exhibit 5, on June 11,
1935. On June 28, 1935, the case was called again. Dr. Fernandez
appeared before the court and ratified his report, Exhibit 5, stating that the
accused was not in a condition to defend himself. In view thereof, the case
was suspended indefinitely.
On January 21, 1936, Dr. Dr. Fernandez reported to the court that the
defendant could be discharged from the hospital and appear for trial, as he
was "considered a recovered case." Summoned by the court, Dr.
Fernandez, appeared and testified that the accused "had recovered from the
disease." On February 27, 1936, the accused was arraigned, pleaded "not
guilty" and trial was had.
After trial, the lower court found the defendant guilty of the offense charged
in the information above-quoted and sentenced him to life imprisonment, to
indemnify the heirs of the deceased in the sum of P1,000, and to pay the
costs.
The defendant now appeals to this court and his counsel makes the
following assignment of errors:
A. The court a quo erred in finding that the evidence establishes that
the accused has had dementia only occasionally and intermittently
and has not had it immediately prior to the commission of the
defense.
B. The court a quo erred in finding that the evidence in this case
further shows that during and immediately after the commission of
the offense, the accused did not show any kind of abnormality either
in behavior, language and appearance, or any kind of action
showing that he was mentally deranged.
C. The court a quo erred in declaring that under the circumstances
that burden was on the defense to show hat the accused was
458
mentally deranged at the time of the commission of the offense, and
that the defense did not establish any evidence to this effect.
D. The court a quo in finding the accused guilty of the offense
charged and in not acquitting him thereof.
It appears that in the morning of December 12, 1934, the defendant
Celestino Bonoan met the now deceased Carlos Guison on Avenida Rizal
near a barbershop close to Tom's Dixie Kitchen. Francisco Beech, who was
at the time in the barbershop, heard the defendant say in Tagalog, "I will kill
you." Beech turned around and saw the accused withdrawing his right hand,
which held a knife, from the side of Guison who said, also in Tagalog, "I will
pay you", but Bonoan replied saying that he would kill him and then stabbed
Guison thrice on the left side. The assaultt was witnessed by policeman
Damaso Arnoco who rushed to the scene and arrested Bonoan and took
possession of the knife, Exhibit A. Guison was taken to the Philippine
General Hospital where he died two days later. Exhibit C is the report of the
autopsy performed on December 15, 1934, by Dr. Sixto de los Angeles.
As the killing of the deceased by the defendant-appellant is admitted, it does
not seem necessary to indulge in any extended analysis of the testimony of
the witnesses for the prosecution. The defense set up being that of insanity,
the only question to be determined in this appeal is whether or not the
defendant-appellant was insane at the time of the commission of the crime
charged.
On the question of insanity as a defense in criminal cases, and the
incidental corollaries as to the legal presumption and the kind
and quantum of evidence required, theories abound and authorities are in
sharp conflict. Stated generally, courts in the United States proceed upon
three different theories. (See Herzog, Alfred W., Medical Jurisprudence
[1931], sec. 655 et seq., p. 479 et seq.; also Lawson, Insanity in Criminal
Cases, p. 11 et seq.) Thefirst view is that insanity as a defense in a
confession and avoidance and as must be proved beyond reasonable doubt
when the commission of a crime is established, and the defense of insanity
is not made out beyond a reasonable doubt, conviction follows. In other
words, proof of insanity at the time of committing the criminal act should be
clear and satisfactory in order to acquit the accused on the ground of
insanity (Hornblower, C. J., in State vs. Spencer, 21 N. J. L., 196).
The second view is that an affirmative verdict of insanity is to be governed
by a preponderance of evidence, and in this view, insanity is not to be
established beyond a reasonable doubt. According to Wharton in his
"Criminal Evidence" (10th ed.,vol. I, sec. 338), this is the rule in England
(Reg. vs. Layton, 4 Cox, C. C., 149; Reg. vs. Higginson, 1 Car. & K., 130),
and in Alabama, Arkansas, California, Georgia, Idaho, Iowa, Kentucky,
Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nevada,
New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina,
Texas, Virginia and West Virginia. The third view is that the prosecution
must prove sanity beyond a reasonable doubt (Dais vs. United States, 160
U. S. 496; 40 Law. ed., 499; 16 Sup. Ct. Rep., 353; Hotema vs. United
States, 186 U. S., 413; 46 Law. ed., 1225; 22 Sup. Ct. Rep., 895; United
States vs. Lancaster, 7 Biss., 440; Fed. Cas. No. 15,555; United States vs.
Faulkner, 35 Fed., 730). This liberal view is premised on the proposition that
while it is true that the presumption of sanity exists at the outset, the
prosecution affirms every essential ingredients of the crime charged, and
hence affirms sanity as one essential ingredients, and that a fortiori where
the accused introduces evidence to prove insanity it becomes the duty of
the State to prove the sanity of the accused beyond a reasonable doubt.
In the Philippines, we have approximated the first and stricter view (People
vs. Bacos [1922], 44 Phil., 204). The burden, to be sure, is on the
prosecution to prove beyond a reasonable doubt that the defendant
committed the crime, but insanity is presumed, and ". . . when a defendant
in a criminal case interposes the defense of mental incapacity, the burden of
establishing that fact rests upon him. . . ." (U. S. vs. Martinez [1916], 34
Phil., 305, 308, 309; U. S. vs. Bascos, supra.) We affirm and reiterate this
doctrine.
In the case at bar, the defense interposed being that the defendant was
insane at the time he killed the deceased, the obligation of proving that
affirmative allegation rests on the defense. Without indulging in fine
distinctions as to the character and degree of evidence that must be
presented sufficiently convincing evidence, direct or circumstantial, to a
degree that satisfies the judicial mind that the accused was insane at the
time of the perpetration of the offense? In order to ascertain a person's
mental condition at the time of the act, it is permissible to receive evidence
of the condition of his mind a reasonable period both before and after that
time. Direct testimony is not required (Wharton, Criminal Evidence, p. 684;
State vs. Wright, 134 Mo., 404; 35 S. W., 1145; State vs. Simms, 68 Mo.,
305; Rinkard vs. State, 157 Ind., 534; 62 N. E., 14; People vs. Tripler, I
Wheeler, Crim. Cas., 48), nor are specific acts of derangement essential
(People vs. Tripler, supra) to established insanity as a defense. Mind can
only be known by outward acts. Thereby, we read the thoughts, the motives
and emotions of a person and come to determine whether his acts conform
to the practice of people of sound mind. To prove insanity, therefore,
cicumstantial evidence, if clear and convincing, suffice (People vs. Bascos
[1922], 44 Phil., 204).
The trial judge arrived at the conclusion that the defendantwas not insane at
the time of the commission of the act for which he was prosecuted on the
theory that the insanity was only occassional or intermittent and not
permanentor continuous (32 C. J., sec. 561, p. 757). We are appraised of
459
the danger of indulging in the preseumption ofcontinuity in cases of
temporary or spasmodic insanity.We appreciate the reason forthe contrary
rule. To be sure, courts should be careful to distinguish insanity in law from
passion or eccentricity, mental weakness or mere depression resulting from
physical ailment. The State should guard against sane murderers escaping
punishment through a general plea of insanity. In the case at bar, however,
we are not cconcerned with connecting two or more attacks of insanity to
show the continuance thereof during the intervening period or periods but
with the continuity of a particular and isolated attack prior to the commission
of the crime charged, and ending with a positive diagnosis of insanity
immediately following the commission of the act complained of. Upon the
other hand, there are facts and circumstances of record which can not be
overlooked.The following considerations have weighed heavily upon the
minds of the majority of this court in arriving at a conclusion different from
that reached by the court below:.
(a) From the evidence presented by the defense, uncontradicted by
the prosecution, it appears that the herein defendant-appellant,
during the periods from April 11 to April 26, 1922, and from January
6 to January 10, 1926, was confined in the insane department of the
San Lazaro Hospital suffering from a disease diagnosed
as dementia præcox. His confinement during these periods, it is
true, was long before the commission of the offense on December
12, 1934, but this is a circumstance which tends to show that the
recurrence of the ailment at the time of the occurence of the crime is
not entirely lacking of any rational or scientific foundation.
(b) All persons suffering from dementia præcox are clearly to be
regarded as having mental disease to a degree that disqualifies
them for legal responsibility for their actions (Mental Disorder in
Medico-Legal Relations by Dr. Albert M. Barrett in Peterson, Haines
and Webster, Legal Medicine and Toxology, vol. I, p. 613).
According to Dr. Elias Domingo, chief alienist of the Insular
Psychopathic Hospital, the symptoms of dementia præcox, in certain
peeriods of excitement, are similar to those of manic depresive
psychosis (p. 19, t. s. n.) and, in either case, the mind appears
"deteriorated" because, "when a person becomes affected by this
kind of disease, either dementia præcox or manic depresive
psychosis, during the period of excitement, he has no control
whatever of his acts." (P. 21, t. s. n.) Even if viewed under the
general medico-legal classification of manic-depressive insanity, "it
is largely in relation with the question of irrestible impulse that
forensic relations of manic actions will have to be considered. There
is in this disorder a pathologic lessening or normal inhibitions and
the case with which impulses may lead to actions impairs
deliberations and the use of normal checks to motor impulses"
(Peterson, Haines and Webster, Legal Medicine and Toxology [2d
ed., 1926], vol, I, p. 617).
(c) According to the uncontradicted testimony of Dr. Celedonio S.
Francisco, at one time an interne at San LazaroHospital, for four (4)
days immediately preceding December 12, 1934 — the date when
the crime was committed — the defendant and appellant had "an
attack of insomnia", which is one of the symptoms of, and may lead
to, dementia præcox (Exhibit 3, defense testimony of Dr. Celedonio
S. Francisco, pp. 13, 14, t. s. n.).
(d) The defendant-appellant appears to have been arrested and
taken to the police station on the very same day of the perpetration
of the crime, and although attempted were made by detectives to
secure a statement from him (see Exhibit B and D and testimony of
Charles Strabel, t. s. n. pp. 9, 10) he was sent by the police
department to the Psychopathic Hospital the day following the
commission of the crime. This is an indication that the police
authorities themselves doubted the mental normalcy of the acused,
which doubt found confirmation in the official reports submitted by
the specialists of the San Lazaro Hospital.
(e) According to the report (Exhibit 4) of the alienist in charge, Dr.
Toribio Joson, which report was made within the first month of
treatment, the defendant was suffering from a form of psychosis,
called manic depressive psychosis.We quote the report in full:
INSULAR PSYCHOPATIC HOSPITAL
MANDALUYONG, RIZAL
January 15, 1935.
MEMORANDUM FOR: The chief Alienist, Insular Psychopatic
Hospital, Mandaluyong, Rizal.
SUBJECT: Patient Celestino Bonoan, male,
Filipino, 30 years old, sent by the
Secret Service of the City of Manila
for mental examinition.
1. MENTAL STATUS:
(a) General behavior. — The patient is undetective, staying
most of the time in his bed with his eyes closed and
460
practically totally motionless. At other times, however, but on
very rare occassions and at short intervals he apparently
wakes up and then he walks around, and makes signs and
ritualistic movements with the extremities and other parts of
the body. Ordinarily he takes his meal but at times he
refuses to take even the food offered by his mother or sister,
so that there have been days in the hospital when he did not
take any nourishment. On several occassions he refused to
have the bath, or to have his hair cut and beard shaved, and
thus appear untidy. He would also sometimes refuse his
medicine, and during some of the intervals he displayed
impulsive acts, such as stricking his chest or other parts of
the body with his fists and at one time after a short interview,
he struck strongly with his fist the door of the nurse's office
without apparent motivation. He also sometimes laughs, or
smiles, or claps his hands strongly without provocation.
(b) Stream of talk. — Usually the patient is speechless, can't
be persuaded to speak, and would not answer in any form
the questions propounded to him. Very often he is seen with
his eyes closed apparently praying as he was mumbling
words but would not answer at all when talked to. At one
time he was seen in this condition with a cross made of
small pieces of strick in his hand. He at times during the
interviews recited passages in the literature as for example
the following.
"La virtud y las buenas costumbres son la verdadera
nobleza del hombre. (Truthfulness, honesty and
loyalty are among the attributes of a dependable
character.)"
At one time he tried to recite the mass in a very loud voice in
the hospital.
(c) Mood. — Patient is usually apathetic and indifferent but
at times he looks anxious and rather irritable. He himself
states that the often feels said in the hospital.
(d) Orientation. — During the periods that he was
acccessible he was found oriented as to place and person
but he did not know the day or the date.
(e) Illusion and hallucination. — The patient states that
during the nights that he could not sleep he could hear
 voices telling him many things. Voices, for example, told that
he should escape. That he was going to be killed because
he was benevolet. That he could sometimes see the shadow
of his former sweetheart in the hospital. There are times
however when he could not hear or see at all anything.
(f ) Delusion and misinterpretation. — On one occassion he
told the examiner that he could not talk in his first day in the
hospital because of a mass he felt he had in his throat. He
sometimes thinks that he is already dead and already buried
in the La Loma Cemetery.
(g) Compulsive phenomena. — None.
(h) Memory. — The patient has a fairly good memory for
remote events, but his memory for recent events or for
example, for events that took place during his stay in the
hospital he has no recollection at all.
(i) Grasp of general informartion. — He has a fairly good
grasp of general information. He could not, however, do
simple numerial tests as the 100-7 test.
( j) Insight and judgment. — At his fairly clear periods he
stated that he might have been insane during his first days in
the hospital, but just during the interview on January 14,
1935, he felt fairly well. Insight and judgment were, of
course, nil during his stuporous condition. During the last two
days he has shown marked improvement in his behavior as
to be cooperative, and coherent in his speech.
2. OPINION AND DIAGNOSIS:
The patient during his confinement in the hospital has been
found suffering from a form of physchosis, called Manic
depressive psychosis.
(Sgd.) TORIBIO JOSON, M. D.
Assistant Alienist
In the subsequent report, dated June 11, 1935 (Exhibit 5), filed by Dr. Jose
A. Fernandez, another assistant alienist in the Insular Pshychopatic
Hospital, the following conclusion was reached:
461
I am of the opinion that actually this patient is sick. He is
suffering from the Manic Depressive form of psychosis. It
might be premature to state before the court has decided
this case, but I believe it a duty to state, that this person is
not safe to be at large. He has a peculiar personality make-
up, a personality lacking in control, overtly serious in his
dealings with the every day events of this earthly world,
taking justice with his own hands and many times executing
it in an impulsive manner as to make his action over
proportionate — beyond normal acceptance. He is sensitive,
overtly religious, too idealistic has taste and desires as to
make him queer before the average conception of an earthly
man.
He will always have troubles and difficulaties with this world
of realities.
(Sgd.) J. A. Fernandez, M. D.
Assistant Alienist
To prove motive and premeditation and, indirectly, mental normlacy of the
accused at the time of the commission of the crime, the prosecution called
on policeman Damaso Arnoco. Arnoco testified that upon arresting the
defendant-appellant he inquired from the latter for the reason for the assault
and the defendant-appellant replied that the deceased Guison owed him
P55 and would pay; that appellant bought the knife, Exhibit A, for 55
centavos in Tabora Street and that for two days he had been watching for
Guison in order to kill him (pp. 5, 6, t. s. n.). Benjamin Cruz, a detective, was
also called and corroborated the testimony of policeman Arnoco. That such
kind of evidence is not necessarily proof of the sanity of the accused during
the commission of the offense, is clear from what Dr. Sydney Smith, Regius
Professor of Forensic Medicine, University of Edinburg, said in his work on
Forensic Medicine (3d ed. [London], p. 382), that in the type of dementia
præcox, "the crime is ussually preceded by much complaining andplanning.
In these people, homicidal attcks are common, because of delusions that
they are being interfered with sexually or that their property is being taken."
In view of the foregoing, we are of the opinion that the defendant-appellant
was demented at the time he perpetrated the serious offense charged in the
information and that conseuently he is exempt from criminal liability.
Accordingly, the judgment of the lower court is hereby reversed, and the
defendant-appellant acquitted, with costs de oficio in both instances. In
conforminty with paragraph 1 of article 12 of the Revised Penal Code, the
defendant shall kept in confinement in the San Lazaro Hospital or such
other hospital for the insane as may be desiganted by the Director of the
Philippine Health Service, there to remain confined until the Court of First of the judge who tried the case in the first instance and does not reject them
Instance of Manila shall otherwise order or decree. So ordered. useless they are clearly in conflict with the evidence.

Avanceña, C.J., Villa-Real and Abad Santos, JJ., concur. DIAZ, J., dissenting:

I do not agree to the majority opinion. The appellant committed the crime
while he was sane, or at least, during a lucid interval. He did not kill his
victim without rhyme or reason and only for the sake of killing him. He did so
Separate Opinions to avenge himself or to punish his victim for having refused, according to
him, to pay a debt of P55 after having made him many promises. He so
stated clearly to the policeman who arrested him immediately after the
IMPERIAL, J., dissenting:
incident; and he made it so understood to the witness Mariano Yamson, a
friend of both the appellant and his victim, before the commission of the
I agree with the dissenting opinions of Hustices Diaz and Concepcion. crime.

There is not question as to the facts constituting the crime imputed to the The law presumes that everybody is in his sound mind because ordinarily
accused. The disagreement arises from the conclusions which both opinions such is his normal condition. Insanity is an exception which may be said to
attempt to infer therefrom. The majority opinon establishes the conclusion exist only when thereis satisfactorily evidence establishing it and it certainly
that the accused was not in his sound mind when he committed the crime is not always permanent because there are cases in which it comes and
because he was then suffering from dementia præcox. The dissenting takes place only occasionaly and lasts more or less time according to the
opinions, in establishing the conclusion that the accused was then in the circumstances of the individual, that is, the condition of his health, his
possession of his mental facilities, or, at leats, at a lucid interval, are based environment, and the other contributory causes thereof. The law itself
on the fact admitted by the parties and supported by expert testimony, that recognizes this, so much so that in establishing the rule that insane persons
the accused, before the commission of the crime, had been cured are excempt from criminal liability, because they commit no crime, it also
of dementia præcox and later of manic depressive psychosis. The majority makes the exception that this is true only when they have not acted during a
opinion admits that there is no positive evidence regarding the mantal state lucid intervals (art. 12, subsec. 1, of the Revised Penal Code).
of the accused when he comitted the crime, but it infers from the facts that
he must have then been deprived of his reason. This inference is not
The appellant was afflicted with insanity only for a few days during the
sufficiently supported by the circumtantial evidence. I it is admitted that the
months stated in the majority opinion; April 1922 and January 1926, but he
legal presumption is that a person who commits a crime is in his right mind
was later pronounced cured in the hospital where he had been confined
(U. S. vs. Hontiveros Carmona, 18 Phil., 62; U. S. vs. Guevara, 27 Phil.,
because he had already returned to normalcy by recovering his reason. For
547; U. S. vs. Zamora, 32 Phil., 218; U. S. vs. Martinez, 34 Phil., 305;
this one fact alone, instead of stating that he acted during a lucid interval on
People vs. Bascos, 44 Phil., 204), because the law presumes all acts and
said occasion, it should be said on the contrary, taking into consideration the
ommissions punishable by law to be voluntary (art. 1, Penal Code; article 4,
explanations given by him to the policemen who arrested him and to other
subsection 1, Revised Penal Code), and if, as it appears, there is sufficient
witnesses for the prosecution with whom he had been talking before and
or satisfactory evidence that the accused was mentally incapacitated when
after the incident, that he acted while in the full possession of his mental
he committed the crime, the conclusion of fact must be the same
faculties.
presumption established by law, that is, that he was in his right mind, and
the conclusion of law must be that he is criminal liable.
The fact that the appellant was aflicted with manic depressive psychosis
after the crime, as certified by Drs. Toribio Joson, J. A. Fernandez and Elias
There is another detail worth mentioning which is that no credit was given to
Domingo who examined him, does not prove that he was so afflicted on the
the conclusions of fact arrived at by the judge who tried the case. He
date and at the time of the commission of the crime nor that said ailment,
observed and heard the witnesses who testified and he had the advantage
taking for granted that he was suffering therefrom, had deprived him of his
of testing their credibility nearby. After weighing all the evidence he arrived
reason to such an extent that he could not account for his acts.
at the conclusion that the accused committed the crime while he was in his
right mind. This court generally gives much weight to the conclusions of fact
462
There is no evidence of record to show that the appellant was actually
insane when he committed the crime or that he continued to be afflicted with
said ailment for which he had to be confined in the insane asylum for some
days during the months above-stated, in 1922 and 1926. The most
reasonable rule which should be adopted in these cases is the one followed
by various courts of the United States stated in 32 C. J., 757, section 561,
and 16 C. J., 538, 539, section 1012 as follows:
If the insanity, admitted, or proved, is only occassional or intermittent
in its nature, the presumption of its continuance does not arise, and
he who relies on such insanity proved at another time must prove its
existence also at the time alleged. (32 C. J., 757, sec. 561.)
Where it is shown that defendant had lucid intervals, it will be
presumed that the offense was committed in one of them. A person
who has been adjudged insane, or who has been committed to a
hospital or to an asylum for the insane, is presumed to continue
insane; but as in the case of prior insanity generally, a prior
adjudication of insanity does not raise a presumption of continued
insanity, where the insanity is not of a permanent or continuing
character, or where, for a considerable period of time, the person
has been on parole from the hospital or asylum to which he was
committed, or where he escaped from the asylum at a time when he
was about to be discharged. (16 C. J., 538, 539, sec. 1012.)
On the other hand, in Clevenger's Medical Jirusprudence of Insanity (vol. 1,
pp. 482 and 484, the following appears:
Fitful and exceptional attacks of insanity are not presumed to be
continuous. And the existence of prior or subsequent lunacy, except
where it is habitual, does not suffice to change the burden of proof.
And where an insane person has lucid intervals offenses committed
by him will be presumed to have been committed in a lucid intervals
unless the contrary appears. The maxim "Once insane presumed
always to be insane" does not apply where the malady or delusion
under which the alleged insane person labored was in its nature
accidental or temporary, or the effect of some sickness or disease.
And in order to raise a presumption of continuance it must be of
permanent type or a continuing nature or possessed of the
characteristics of an habitual and confirmed disorder of the mind.
And it must appear to have been of such duration and character as
to indicate the probability of its continuance, and not simply the
possibility or probability of its recurrence. And there should be some
evidence tending to show settled insanity as contradistinguished
463
from temporary aberration or hallucination, to justify an instruction
which does nor recognize such a distinction.
It is alleged that the appellant was suffering from insomia before he
committed the crime in question. Such condition does not necessarily prove
that on the day in question he was actually insane. Insomia, according to Dr.
Elias Domingo, is not an exlcusive symptom of insanity; other diseases and
ailments also have it (t. s. n., p.19).
In view of the foregoing considerations and of those stated in the dissenting
opinion of Justice Concepcion, I vote for the affirmance of the appealed
sentence, because in my opinion it is supported by the evidence and in
accordance with law.
CONCEPCION, J., dissenting:
I dissent: Above all, I wish to state: (1) that the crime committed by the
accused is an admitted fact; and (2) that I adhere to the statement of the
majority that it is settled in this jurisdiction that a defense based upon the
insanity of the accused should be established by means of clear, indubitable
and satisfactory evidence.
On December 12, 1934, the accused stabbed the deceased Carlos Guison
who, as a result the wounds received by him, died in the hospital two days
after the aggression.
It is alleged that the accused was insane at the time he committed this
crime. What evidence is there of record in support of this defense? Mention
has been made of the fact that the accused had been confined in the san
Lazaro Hospital and later in the Psychopathic Hospital. He was confined in
the San Lazaro Hospital from April 11 to April 26, 1922. He returned to the
hospital on January 6, 1926, and left on the 10th of said month and years.
Dr Elias Domingo, chief alienist of the Psychopathic Hospital was
questioned as follows:
Q. When he left the hospital, can you state whether he was already
completely cured of his insanity? — A. He wassocially adjustable.
Q. What do you mean by socially adjustable? — A. That he could
adapt himself to environment.
There is no evidence that from the month of January, 1926, when he was
declared cured at the Psychopathic Hospital, to December 12, 1934, the
date of the crime, he had shown signs of having had a relapse. Therefore it
is a proven fact during the long period of nine years the accused had been
sane.
It is alleged, however, that four days before the crime the accused was
under treatment by Dr. Celedonio S. Francisco because he was suffering
from insomia. Dr. Francisco admitted that he was not a specialist in mental
diseases. He is, therefore, disqualified from testifying satisfactorily on the
mental condition of the accused four days before the crime; and in fact
neither has Dr. Francisco given any convincing testimony to prove that when
the accused was under treatment by him he was suffering from dementia
præcox, as the only thing he said was that the accused-appellant had an
attack of insomia which is one of the symptoms of and may lead to dementia
præcox(Exhibit 3; t. s. n., pp. 13, 14). This is not an affirmation of a fact but
of a mere possibility. The innoncence of the accused cannot be based on
mere theories or possibilities. To prove insanity as a defense, material,
incontrovertible facts, although circumstantial, are necessary.
On the contrary the evidence shows that on the day the accused committed
the crime he talked and behaved as an entirely normal man. Policemen
Damaso T. Arnoco and Benjamin Cruz testified that the accused, after
having been asked why he had attacked Carlos Guison, replied that it was
because Guison owed him P55 for a long time and did not pay him. The
accused stated that he bought the knife with which he had stabbed Guison
on Tabora Street for fifty centavos and he had been waiting for two days to
kill Guison. The accused took his dinner at noon on December 12th. The
statement of the accused which was taken in writing by detectives Charles
Strubel and Manalo on December12th was left unfinished because Cruz of
the Bureau of Labor arrived and told the accused not to be a fool and not to
make any statement. Thereafter the accused refused to continue his
statement. All of these show that on that day the accused behaved as a
sane man and he even appeared to be prudent, knowing how to take
advantage of advice favorable to him, as that given him by Cruz of the
Bureau of Labor. Furthermore it cannot be said hat the accused had
stabbed Guison through hallucination because it is an established fact that
his victim really owed him money as confirmed by the fact that when Guison
was stabbed he cried to the accused "I am going to pay you", according to
the testimony of an eyewitness. Therefore the motive of the aggression was
a real and positive fact: vengeance.
Some days after the commission of the crime, the accused was placed
under observation in the Psychopathic Hospital because he showed
symptoms of a form of psychosis called depressive psychosis from which he
had already been cured when the case was tried. This pyschosis is of
course evidence that the accused was afflicted with this ailment after the
commission of the crime. It would not be casual to affirm that the
commission of the crime had affected his reason. Nervous shock is one of
464
the causes of insanity (Angeles, Legal Medicine, p. 728); but it cannot be
logically inferred therefrom that the accused was also mentally deranged on
the day of the crime, aside from the ciscumstance that the evidence shows
just the contrary. I am, therefore, of the opinion that the appealed sentence
should be affirmed.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-52688 October 17, 1980
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HONORATO AMBAL, accused-appellant.
AQUINO, J.:
Honorato Ambal appealed from the decision of the Court of First Instance of
Camiguin convicting him of parricide, sentencing him to reclusion
perpetua and ordering him to pay an indemnity of twelve thousand pesos to
the heirs of his deceased wife, Felicula Vicente-Ambal (Criminal Case No.
155-C).
In the morning of January 20, 1977, the barangay captain found under some
flowering plants near the house of Honorato Ambal located in Barrio
Balbagon, Mambajao, Camiguin, Felicula Vicente-Ambal, 48, mortally
wounded. She asked for drinking water and medical assistance.
She sustained seven incised wounds in different parts of her body. She was
placed in an improvised hammock and brought to the hospital where she
died forty minutes after arrival thereat (Exh. B and G).
On that same morning, Honorato Ambal, husband of Felicula, after
entrusting his child to a neighbor, went to the house of the barangay captain
and informed the latter's spouse that he (Honorato) had killed his wife
Feling. After making that oral confession, Ambal took a pedicab, went to the
municipal hall and surrendered to a policeman, also confessing to the latter
that he had liquidated his wife.
The policeman confiscated Ambal's long bolo, the tip of which was broken
(Exh. F). Ambal was bespattered with blood. His shirt was torn. He
appeared to be weak.
The killing was the climax of a fifteen-year-old marriage featured by quarrels
and bickerings which were exacerbated by the fact that the wife sometimes
did not stay in the conjugal abode and chose to spend the night in the
poblacion of Mambajao. The couple had eight children.
The immediate provocation for the assault was a quarrel induced by
Felicula's failure to buy medicine for Ambal who was afflicted with influenza.
The two engaged in a heated alteration. Felicula told her husband that it
would be better if he were dead ("Mas maayo ka pang mamatay"). That
remark infuriated Ambal and impelled him to attack his wife (Exh. 1).
On January 27, 1977, a police lieutenant charged Ambal with parricide in
the municipal court. After a preliminary examination, the case was elevated
to the Court of First Instance where on March 4, 1977 the fiscal filed against
Ambal an information for parricide. At the arraignment, Ambal, assisted by
counsel de oficio, pleaded not guilty.
After the prosecution had presented its evidence, accused's counsel de
oficio manifested that the defense of Ambal was insanity.
The trial court in its order of September 15, 1977 directed the municipal
health officer, Doctor Maximino R. Balbas, Jr., a 1960 medical graduate who
had undergone a six-month training in psychiatry in the National Mental
Hospital, to examine Ambal and to submit within one month a report on the
latter's mental condition (p. 65, Record).
Doctor Balbas in his report dated November 3, 1977 found that Ambal was a
"passive-aggressive, emotionally unstable, explosive or inadequate
personality" (Exh. 1).
Doctor Balbas testified that during the period form February 1 (twelve days
after the killing) to November 3, 1977, when he placed Ambal under
observation, the latter did not show any mental defect and was normal (44-
46 tsn November 3,1977).
Asked directly whether Ambal suffered from a mental disease or defect,
Doctor Balbas replied: "Before the commission of the crime, he was normal.
After the commission of the crime, normal, but during the commission of the
crime, that is what we call "Psychosis" due to short frustration tolerance" (45
tsn).
465
Doctor Cresogono Llacuna,a 1937 medical graduate who undertook a two-
month observation of mental cases and who in the course of his long
practice had treated around one hundred cases of mental disorders,
attended to Ambal in 1975. He found that Ambal suffered from a
psychoneurosis, a disturbance of the functional nervous system which is not
insanity (65 November 15, 1977). The doctor concluded that Ambal was not
insane. Ambal was normal but nervous (68 He had no mental disorder.
Ambal, 49, who reached Grade four, testified on November 16, 1977 or
about ten months after the incident. He said that at the time of the killing he
did not know what he was doing because he was allegedly not in full
possession of his normal mental faculties. He pretended not to know that he
was charged with the capital offense of having killed his wife.
But he admitted that he knew that his wife was dead because he was
informed of her death. During his confinement in jail he mopped the floor
and cooked food for his fellow prisoners. Sometimes, he worked in the town
plaza or was sent unescorted to buy food in the market.
He said that his wife quarrelled with him. She was irritable. he admitted that
he rode on a tricycle when he surrendered on the day of the killing. He
remembered that a week before the incident he got wet while plowing. He
feel asleep without changing his clothes. At midnight, when he woke up, he
had chills. That was the commencement, his last illness.
The trial court concluded from Ambal's behavior immediately after the
incident that he was not insane and that he acted like a normal human
being. We agree with the court's conclusion.
Courts should be careful to distinguish insanity in law from
passion or eccentricity, mental weakness or mere
depression resulting from physical ailment. The State should
guard against sane murderers escaping punishment through
a general plea of insanity. (People vs. Bonoan, 64 Phil. 87,
94.)
Article 12 of the Revised Penal Code exempts from criminal liability an
imbecile or an insane person unless the latter has acted during a lucid
interval. *
According to the dictionary imbecile is a person marked by mental deficiency while an insane person is one
who has an unsound mind or suffers from a mental disorder. "imbecil vale tanto como escaso de razon y
es loco el que ha perdido el juico." An insane person may have lucid intervals but "el embecil no puede
tener, no tiene estos intervalos de Corazon, pues en el no hay una alteracion, sino una carencia del juico
mismo" (1 Viada, Codigo Penal, 4th Ed., p. 92.)
Insanity has been defined as "a manifestation in language or conduct of
disease or defect of the brain, or a more or less permanently diseased or
disordered condition of the mentality, functional or organic, and
characterized by perversion, inhibition, or disordered function of the sensory
or of the intellective faculties, or by impaired or disordered volition" (Sec.
1039, Revised Administrative Code).
The law presumes that every person is of sound mind, in the
absence of proof to the contrary (Art. 800, Civil Code re
Testamentary Succession; U.S. vs. Martinez, 34 Phil. 305,
308). The law always presumes all acts to be voluntary. It is
improper to presume that acts were executed unconsciously
(People vs. Cruz, 109 Phil. 288, 292; People vs. Tagasa, 68
Phil. 147, 153; U.S. vs. Guevara, 27 Phil. 547; People vs.
Fausto, 113 Phil. 841).
When there is no proof that the defendant was not of sound
mind at the time he performed the criminal act charged to
him, or that he performed it at the time of madness or of
mental derangement, or that he was generally considered to
be insane — his habitual condition being, on the contrary,
healthy — the legal presumption is that he acted in his
ordinary state of mind and the burden is upon the defendant
to overcome this presumption (U.S. vs. Zamora, 32 Phil.
218.)
Without positive proof that the defendant had lost his reason
or was demented, a few moments prior to or during the
perpetration of the crime, it will be presumed that he was in a
normal condition (U.S. vs. Hontiveros Carmona, 18 Phil. 62).
A defendant in a criminal case, who interposes the defense of mental
incapacity, has the burden of establishing that fact, meaning that he was
insane at the very moment when the crime was committed (People vs.
Bascos, 44 Phil. 204.)
What should be the criterion for insanity or imbecility? We have adopted the
rule, based on Spanish jurisprudence, that in order that a person could be
regarded as an imbecile within the meaning of article 12 of the Revised
Penal Code, he must be deprived completely of reason or discernment and
freedom of the will at the time of committing the crime (People vs.
Formigonez, 87 Phil. 658, 660)
In order that insanity may be taken as an exempting circumstance, there
must be complete deprivation of intelligence in the commission of the act or
466
that the accused acted without the least discernment. Mere abnormality of
his mental faculties does not exclude imputability. (People vs. Cruz, 109
Phil. 288,292; People vs. Renegado, L-27031, May 31,1974,57 SCRA 275,
286.)
A man who could feel the pangs of jealousy and who tried to vindicate his
honor by taking violent measures to the extent of killing his wife (whom he
suspected of infidelity) can hardly be regarded as an imbecile (Formigones
case).
Where the accused had a passionate nature, with a tendency to having
violent fits when angry, his acts of breaking glasses and smashing dishes
are indications of an explosive temper and not insanity, especially
considering that he did not turn violent when a policeman intercepted him
after he had killed his wife. (Cruz case.)
There is a vast difference between an insane person and
one who has worked himself up into such a frenzy of anger
that he fails to use reason or good judgment in what he
does. Persons who get into a quarrel or fight seldom, if ever,
act naturally during the fight. An extremely angry man, often,
if not always, acts like a madman. The fact that a person
acts crazy is not conclusive that he is insane. The popular
meaning of the word I "crazy" is not synonymous with the
legal terms "insane", "non compos mentis," "unsound
mind","idiot", or "lunatic" (U.S. vs. Vaquilar, 27 Phil. 88, 91.)
The heat of passion and feeling produced by motives of
anger, hatred, or revenge is not insanity. (People vs. Foy,
138 N.Y. 664, cited in Vaquilar case, on p. 92.)
One who, in possession of a sound and, commits a criminal
act under the impulse of passion or revenge, which may
temporarily dethrone reason and for the moment control the
will, cannot nevertheless be shielded from the consequences
of the act by the plea of insanity. Insanity will only excuse the
commission of a criminal act, when it is made affirmatively to
appear that the person committing it was insane, and that
the offense was the direct consequence of his insanity (State
vs. Strickly, 41 Iowa 232, cited in Vaquilar case, on p. 94.)
The defense of insanity was rejected in a case where the accused killed by
strangulation a sixteen-year-old girl, who got leaves from his banana plants,
and sliced the flesh of her legs, thighs and shoulders, cooked the flesh and
ate it like a cannibal. (People vs. Balondo, L-27401, October 31, 1969, 30
SCRA 155).
Being weak-minded does not necessarily mean that the accused is insane
(People vs. Martin, 120 Phil. 14, 20-21).
Justice Cardozo in his article, "What Medicine Can Do For The Law", traces
briefly the origin of the rule regarding insanity as a defense. He says:
In the early stages of our law, way back in medieval times,
insanity was never a defense for crime. The insane killer, like
the man who killed in self-defense, might seek a pardon from
the king, and would often get one. He had no defense at law.
Gradually insanity was allowed, but only within narrow limits
This was what was become known as the wild-beast stage
of the defense. Then the limits of the defense were
expanded, but still slowly and narrowly. The killer was
excused if the disease of the mind was such that he was
incapable of appreciating the difference between right and
wrong. At first this meant, not the right and wrong of
particular case, but right and wrong generally or in the
abstract, the difference, as it was sometimes said, between
good and evil. Later, the rule was modified in favor of the
prisoner so that capacity to distinguish between right and
wrong generally would not charge with responsibility if there
was no capacity to understand the difference in relation to
the particular act, the subject of the crime.
The rule governing the subject was crystallized in England in
1843 by the answer made by the House of Lords to
questions submitted by judges in the famous case of
McNaghten, who was tried for the murder of one Drummond,
the secretary of Sir Robert Peel.
In the M'Naghten case, 8 Eng. Rep. 718, Clark and Finelly 200, the following
rule was laid down: "To establish a defense on the ground of insanity, it
must be clearly proved that, at the time of committing the act, the party
accused was laboring under such a defect of reason from disease of the
mind, as not, to know the nature and quality of the act he was doing, or, if he
did know it, that he did not know he was doing what was wrong."
In the M'Naghten case, it appears that Daniel M'Naghten shot Edward
Drummond on January 20, 1843. Drummond died as a consequence of the
gunshot wound on April 25, 1843. Drummond was the private secretary of
Sir Robert Peel, prime minister M'Naghten shot Drummond, thinking he was
467
Sir Robert. M'Naghten labored under the the insane delusion that he was
being hounded by his enemies and that the prime minister was one of them.
Medical evidence tended to prove that M'Naghten was affected by morbid
delusions which carried him beyond the power of his own control, leaving
him unable to distinguish right and wrong, and that he was incapable of
controlling his conduct in connection with the delusion. The jury found him
not guilty by reason of insanity.
As stated in another case, the "test of the responsibility for criminal acts,
when insanity is asserted, is the capacity of the accused to distinguish
between right and wrong at the time and with respect to the act which is the
subject of the inquiry. (Coleman's case,1 N.Y. Cr. Rep. 1.)
Another test is the so-called "irresistible impulse" test which means that
"assuming defendant's knowledge of the nature and quality of his act and
his knowledge that the act is wrong, if, by reason of disease of the mind,
defendant has been deprived of or lost the power of his will which would
enable him to prevent himself from doing the act, then he cannot be found
guilty." The commission of the crime is excused even if the accused knew
what he was doing was wrong provided that as a result of mental disease he
lacked the power to resist the impulse to commit the act. (State v. White,
270 Pac. 2d. 727, 730; Leslie Kast, 31 North Dakota Law Review, pp. 170,
173.)
The latest rule on the point is that "the so-called right wrong test,
supplemented by the irresistible impulse test, does not alone supply
adequate criteria for determining criminal responsibility of a person alleged
mental incapacity." "An accused is not criminally responsible if his unlawful
act is the product of a mental disease or a mental defect. A mental disease
relieving an accused of criminal responsibility for his unlawful act is a
condition considered capable of improvement or deterioration; a mental
defect having such effect on criminal responsibility is a condition not
considered capable of improvement or deterioration, and either congenital,
or the result of injury or of a physical or mental disease." (Syllabi, Durham v.
U.S., 214 F. 2nd. 862, 874, 45 A.L.R. 2d. 1430 [1954].)
As stated in 22 C.J.S. 203, "the general test of criminal responsibility may be
stated to be the capacity to understand the nature and consequences of the
act charged and the ability to distinguish between right and wrong as to
such act, and in a majority of jurisdictions this is the exclusive test."
And, as noted in 21 Am Jur 2d. 118, the rule in the M'Naghten case exists
along with the "irresistible impulse" test or some other formula permitting a
defendant to be exculpated on the ground that, although he knew the act
was wrong, he was unable to refrain from committing it.
 Since the broadest test suggested, which is the Durham or
"Product" rule, also permits inability to distinguish between
right and wrong to be considered, even though it refuses to
limit the inquiry to that topic, it would appear that insanity
which meets this test is a defense in all Anglo-American
jurisdictions and that the only controversy is over whether
there are some cases in which the right-and-wrong test is
not met, but in which a defense on grounds of insanity
should nevertheless be recognized. (21 Am Jur 2d 118.)
In the instant case, the alleged insanity of Ambal was not substantiated by
any sufficient evidence. The presumption of sanity was not overthrown. He
was not completely bereft of reason or discernment and freedom of will
when he mortally wounded his wife. He was not suffering from any mental
disease or defect.
The fact that immediately after the incident he thought of surrendering to the
law-enforcing authorities is incontestable proof that he knew that what he
had done was wrong and that he was going to be punished for it.
Ambal is guilty of parricide with the mitigating circumstance of voluntary
surrender to the authorities. Article 246 of the Revised Penal Code punishes
parricide with reclusion perpetua to death. The lesser penalty should be
imposed because of the presence of one mitigating circumstance and the
absence of aggravating circumstances (Art. 63[3], Revised Penal Code).
WHEREFORE, the trial court's decision is affirmed. Costs against the
appellant.
SO ORDERED.
Barredo, Fernandez and De Castro, JJ., concur.
Justice Concepcion, Jr., is on leave.
Justice Fernandez was designated to sit in the Second Division.
Separate Opinions
468
BARREDO, J., (Chairman), concurring:
I concur in the judgment in this case on the bases of existing local
jurisprudence cited in the main opinion. The brilliant and scholarly
dissertation by Justice Aquino in his main opinion deserve full study and
consideration, but I prefer to lavish myself to the rulings on insanity in our
jurisprudence which I feel adequately provide enough basis for clear
judgment.
ABAD SANTOS, J., concurring:
I concur in finding Honorato Ambal guilty of parricide and reclusion
perpetua is the correct penalty. However, I wish to add these observations:
The wife of the appellant appears to have been a shrew. The worst thing
that can happen to a person is to have an unbearable spouse. The
deceased was a neglectful wife. She stayed away from the conjugal home
at time and prior to her death she failed to buy medicine for her husband
who had influenza and even had the gall to tell him, "mas maayo ka
pangpatay." This, together with the mental condition of Ambal described in
the main opinion, should entitle him to two additional mitigating
circumstances, namely: obfuscation (Art. 13, par. 6, R.P.C.) and illness
(Idem., par. 9.) To be sure, the presence of these additional mitigating
circumstances will not cause the reduction of the penalty because Art. 63,
par. 3 of the Revised Penal Code prevails over Art. 64, par. 5 of the same
Code. (People vs. Relador, 60 Phil. 593 [1934].) But under the
circumstances the appellant is deserving of executive clemency and I so
recommend.
Separate Opinions
BARREDO, J., (Chairman), concurring:
I concur in the judgment in this case on the bases of existing local
jurisprudence cited in the main opinion. The brilliant and scholarly
dissertation by Justice Aquino in his main opinion deserve full study and
consideration, but I prefer to lavish myself to the rulings on insanity in our
jurisprudence which I feel adequately provide enough basis for clear
judgment.
ABAD SANTOS, J., concurring:
I concur in finding Honorato Ambal guilty of parricide and reclusion
perpetua is the correct penalty. However, I wish to add these observations:
The wife of the appellant appears to have been a shrew. The worst thing
that can happen to a person is to have an unbearable spouse. The
deceased was a neglectful wife. She stayed away from the conjugal home
at time and prior to her death she failed to buy medicine for her husband
who had influenza and even had the gall to tell him, "mas maayo ka
pangpatay." This, together with the mental condition of Ambal described in
the main opinion, should entitle him to two additional mitigating
circumstances, namely: obfuscation (Art. 13, par. 6, R.P.C.) and illness
(Idem., par. 9.) To be sure, the presence of these additional mitigating
circumstances will not cause the reduction of the penalty because Art. 63,
par. 3 of the Revised Penal Code prevails over Art. 64, par. 5 of the same
Code. (People vs. Relador, 60 Phil. 593 [1934].) But under the
circumstances the appellant is deserving of executive clemency and I so
recommend.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-33211 June 29, 1981
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ERNESTO PUNO y FILOMENO, Accused whose death sentence is under
review.
AQUINO, J.:
This is a murder case where the accused interposed as a defense the
exempting circumstance of insanity.
There is no doubt that at about two o'clock in the afternoon of September 8,
1970, Ernesto Puno, 28, a jeepney driver, entered a bedroom in the house
of Francisca Col (Aling Kikay), 72, a widow. The house was located in the
area known as Little Baguio, Barrio Tinajeros Malabon, Rizal
On seeing Aling Kikay sitting in bed, Puno insulted her by saying:
"Mangkukulam ka mambabarang mayroon kang bubuyog". Then, he
repeatedly slapped her and struck her several times on the head with a
hammer until she was dead.
469
The assault was witnessed by Hilaria de la Cruz, 23, who was in the
bedroom with the old woman, and by Lina Pajes, 27, a tenant of the
adjoining room. They testified that Puno's eyes were reddish. His look was
baleful and menacing. Puno was a neighbor of Aling Kikay.
After the killing, Puno went to the room of Lina, where Hilaria had taken
refuge, and, according to Hilaria, he made the following confession and
threat: "Huwag kayong magkakamaling tumawag ng pulis at sabihin ninyo
na umalis kayo ng bahay at hindi ninyo alam kung sino ang pumatay sa
matanda." Or, according to Lina, Puno said: "Pinatay ko na iyong matanda.
Huwag kayong tumawag ng pulis. Pag tumawag kayo ng pulis, kayo ang
paghihigantihan ko. "
After the killing, Puno fled to his parents' house at Barrio Tugatog, Malabon
and then went to the house of his second cousin, Teotimo Puno, located at
Barrio San Jose, Calumpit, Bulacan, reaching that place in the evening.
How he was able to go to that place, which was then flooded, is not shown
in the record.
Disregarding Puno's threat, Lina, after noting that he had left, notified the
Malabon police of the killing. Corporal Daniel B. Cruz answered the call. He
found Aling Kikay sprawled on her bed already dead, Her head was bloody.
Her blanket and pillows were bloodstained. He took down the statements of
Lina and Hilaria at the police station. They pointed to Puno as the killer (pp.
15- 17, Record).
A medico-legal officer of the National Bureau of Investigation conducted an
autopsy. He certified that the victim had lacerated wounds on her right
eyebrow and contusions on the head caused by a hard instrument, On
opening the skull, the doctor found extensive and generalized hemorrhage.
The cause of death was intracranial, traumatic hemorrhage (Exh. A).
Puno's father surrendered him to the police. Two Malabon policemen
brought him to the National Mental Hospital in Mandaluyong, Rizal on
September 10, 1970 (p. 14, Record). He was charged with murder in the
municipal court. He waived the second stage of the preliminary
investigation.
On October 21, 1970, he was indicted for murder in the Circuit Criminal
Court at Pasig, Rizal. Alleged in the information as aggravating
circumstances were evident premeditation, abuse of superiority and
disregard of sex.
Puno, a native of Macabebe, Pampanga, who testified about five months
after the killing, pretended that he did not remember having killed Aling
Kikay- He believes that there are persons who are "mangkukulam,"
"mambabarang" and "mambubuyog and that when one is victimized by
those persons, his feet might shrink or his hands might swan. Puno believes
that a person harmed by a "mambabarang" might have a headache or a
swelling nose and ears and can be cured only by a quack doctor
(herbolaryo). Consequently, it is necessary to kill the "mangkukulam" and
"mambabarang".
Puno is the third child in a family of twelve children. He is married with two
children. He finished third year high school. His father is a welder. Among
his friends are drivers. (Exh- B).
Zenaida Gabriel, 30, Puno's wife, testified that on the night before the
murder, Puno's eyes were reddish. He complained of a headache. The
following day while he was feeding the pigs, he told Zenaida that a bumble
bee was coming towards him and he warded it off with his hands. Zenaida
did not see any bee.
Puno then went upstairs and took the cord of the religious habit of his
mother. He wanted to use that cord in tying his dog. He asked for another
rope when Zenaida admonished him not to use that cord. Puno tied the dog
to a tree by looping the rope through its mouth and over its head. He
repeatedly boxed the dog.
Aida Gabriel, Zenaida's elder sister, saw Puno while he was boxing that
dog. Aida observed that Puno's eyes were bloodshot and his countenance
had a ferocious expression.
Teotimo Puno testified that on the night of September 8, 1970, Ernesto
Puno came to their house in Barrio San Jose, Calumpit. Ernesto was
soaking wet as there was a flood in that place. He was cuddling a puppy
that he called "Diablo". He called for Teotimo's mother who invited him to
eat. Ernesto did not eat. Instead, he fed the puppy.
Ernesto introduced Teotimo to his puppy. Then, he sang an English song.
When Teotimo asked him to change his wet clothes, Ernesto refused. Later,
he tried on the clothes of Teotimo's father. When told that Teotimo's father
had been dead for a couple of years already, Ernesto just looked at
Teotimo.
While he was lying down, Ernesto began singing again. Then he emitted a
moaning sound until he fell asleep. Ernesto was awakened the next morning
by the noise caused by persons wading in the flood. Ernesto thought they
were his fellow cursillistas.
470
The defense presented three psychiatrists. However, instead of proving that
puno was insane when he killed Aling Kikay, the medical experts testified
that Puno acted with discernment.
Thus, Doctor Araceli Maravilla of the Psychiatry Section of the Dr. Jose R.
Reyes Memorial Hospital, to whom Puno was referred for treatment ten
times between September 8, 1966 and July 24, 1970, testified that Puno
was an out-patient who could very well live with society, although he was
afflicted with "schizophrenic reaction"; that Puno knew what he was doing
and that he had psychosis, a slight destruction of the ego. Puno admitted to
Doctor Maravilia that one cause of his restlessness, sleeplessness and
irritability was his financial problem (7 tsn November 4, 1970). Doctor
Maravilla observed that Puno on July 4, 1970 was already cured.
Doctor Reynaldo Robles of the National Mental Hospital testified that Puno
was first brought to that hospital on July 28, 1962 because his parents
complained that he laughed alone and exhibited certain eccentricities such
as kneeling, praying and making his body rigid. Doctor Robles observed that
while Puno was suffering from "schizophrenic reaction", his symptoms were
"not socially incapacitating" and that he could adjust himself to his
environment (4 tsn January 20, 1971). He agreed with Doctor Maravilla's
testimony.
Doctor Carlos Vicente, a medical specialist of the National Mental Hospital,
testified that from his examination of Puno, he gathered that Puno acted
with discernment when he committed the killing and that Puno could
distinguish between right and wrong (5 tsn January 1 1, 197 1). Doctor
Vicente also concluded that Puno was not suffering from any delusion and
that he was not mentally deficient; otherwise, he would not have reached
third year high school (8-19 tsn January 1 1, 197 1).
On December 14, 1970 or three months after the commission of the offense,
Doctors Vicente, Robles and Victorina V. Manikan of the National Mental
Hospital submitted the following report on Puno (Exh. B or 2):
Records show that he had undergone psychiatric treatment
at the Out-Patient Service of the National Mental Hospital for
schizophrenia in 1962 from which he recovered; in 1964 a
relapse of the same mental illness when he improved and in
1966 when his illness remained unimproved.
His treatment was continued at the JRR Memorial Hospital
at the San Lazaro Compound up to July, 1970. He was
relieved of symptoms and did not come back anymore for
medication. On September 8, 1970, according to
 information, he was able to kill an old woman. Particulars of
the offense are not given.
MENTAL CONDITION
... Presently, he is quiet and as usual manageable. He is
fairly clean in person and without undue display of emotion.
He talks to co-patients but becomes evasive when talking
with the doctor and other personnel of the ward. He knows
he is accused of murder but refuses to elaborate on it.
xxx xxx xxx
REMARKS
In view of the foregoing findings, Ernesto Puno, who
previously was suffering from a mental illness called
schizophrenia, is presently free from any social
incapacitating psychotic symptoms.
The seeming ignorance of very simple known facts and
amnesia of several isolated accounts in his life do not fit the
active pattern of a schizophrenic process. It may be found in
an acutely disturbed and confused patient or a markedly,
retarded individual of which he is not.
However, persons who recover from an acute episode of
mental illness like schizophrenia may retain some residual
symptoms impairing their judgment but not necessarily their
discernment of right from wrong of the offense committed.
The foregoing report was submitted pusuant to Rule 28 of the Rules of
Court and the order of the trial court dated November 16, 1970 for the
mental examination of Puno in the National Mental Hospital to determine
whether he could stand trial and whether he was sane when he committed
the killing.
The trial court concluded that Puno was sane or knew that the killing of
Francisca Col was wrong and that he would be punished for it, as shown by
the threats which he made to Hilaria de la Cruz and Lina Pajes, the old
woman's companions who witnessed his dastardly deed.
The trial court also concluded that if Puno was a homicidal maniac who had
gone berserk, he would have killed also Hilaria and Lina. The fact that he
471
singled out Aling Kikay signified that he really disposed of her because he
thought that she was a witch.
Judge Onofre A. Villaluz said that during the trial he "meticulously observed
the conduct and behavior of the accused inside the court, most especially
when he was presented on the witness stand" and he was convinced "that
the accused is sane and has full grasp of what was happening" in his
environment.
The trial court convicted Puno of murder, sentenced him to death and
ordered him to pay the heirs of the victim an indemnity of twenty-two
thousand pesos (Criminal Case No. 509).
His counsel de oficio in this review of the death sentence, contends that the
trial court erred in not sustaining the defense of insanity and in appreciating
evident premeditation, abuse of superiority and disregard of sex as
aggravating circumstances.
When insanity is alleged as a ground for exemption from responsibility, the
evidence on this point must refer to the time preceding the act under
prosecution or to the very moment of its execution (U.S. vs. Guevara, 27
Phil. 547). Insanity should be proven by clear and positive evidence (People
vs. Bascos, 44 Phil. 204).
The defense contends that Puno was insane when he killed Francisca Col
because he had chronic schizophrenia since 1962; he was suffering from
schizophrenia on September 8, 1970, when he liquidated the victim, and
schizophrenia is a form of psychosis which deprives a person of
discernment and freedom of will.
Insanity under article 12 of the Revised Penal Code means that the accused
must be deprived completely of reason or discernment and freedom of the
will at the time of committing the crime (People vs- Formigones, 87 Phil.
658, 660).
Insanity exists when there is complete deprivation of intelligence in
committing the act, that is, the accused is deprived of reason, he acts
without the least discernment because there is complete absence of the
power to discern, or that there is total deprivation of freedom of the
will. Mere abnormality of the mental faculties will not exclude imputability."
(People vs. Ambal, G.R. No. 52688, October 17, 1980; People vs.
Renegade, L-27031, May 31, 1974, 57 SCRA 275, 286; People vs. Cruz,
109 Phil. 288, 292. As to "el trastorno mental transitorio as an exempting
circumstance, see I Cuello Calon, Codigo Penal, 15th Ed., 1974. pp. 498-
504 and art. 8 of the Spanish Penal Code.)
After evaluating counsel de oficio's contentions in the light of the strict rule
just stated and the circumstances surrounding the killing, we are led to the
conclusion that Puno was not legally insane when he killed the hapless and
helpless victim. The facts and the findings of the psychiatrists reveal that on
that tragic occasion he was not completely deprived of reason and freedom
of will.
In People vs. Fausto y Tomas, 113 Phil. 841, the accused was confined in
the National Mental Hospital for thirteen days because he was suffering
from schizophrenia of the paranoid type. His confinement was
recommended by Doctor Antonio Casal of the San Miguel Brewery where
the accused used to work as a laborer. About one year and two months
later, he killed Doctor Casal because the latter refused to certify him for re-
employment. His plea of insanity was rejected. He was convicted of murder.
In the instant case, the trial court correctly characterized the killing as
murder. The qualifying circumstance is abuse of superiority. In liquidating
Francisco Col, Puno, who was armed with a hammer, took advantage of his
superior natural strength over that of the unarmed septuagenarian female
victim who was unable to offer any resistance and who could do nothing but
exclaim " Diyos ko ".
Thus, it was held that "an attack made by a man with a deadly weapon upon
an unarmed and defenseless woman constitutes the circumstance of abuse
of that superiority which qqqs sex and the weapon used in the act afforded
him, and from which the woman was unable to defend herself" (People vs.
Guzman, 107 Phil. 1122, 1127 citing U.S. vs. Consuelo, 13 Phil. 612; U.S.
vs. Camiloy 36 Phil. 757 and People vs. Quesada, 62 Phil. 446).
Evident premeditation (premeditacion conocida) cannot be appreciated
because the evidence does not show (a) the time when the offender
determined to commit the crime, (b) an act manifestly indicating that the
culprit had clung to his determination and (c) a sufficient interval of time
between the determination and the execution of the crime to allow him to
reflect upon the consequences of his act (People vs. Ablates, L-33304, July
31, 1974, 58 SCRA 241, 247).
The essence of premeditation "es la mayor perversidad del culpable
juntamente con su serenidad o frialdad de animo." It is characterized (1)
"por la concepcion del delito y la resolucion de ejecutarlo firme, fria,
reflexival meditada y detenida" and (2) "por la persistencia en la resolucion
de delinquir demostrada por el espacio de tiempo transcurrido entre dicha
resolucion y la ejecucion del hecho Premeditation should be evident,
meaning that it should be shown by "signos reiterados v externos, no de
472
meras sospechas" (1 Cuello Calon, Codigo Penal, 1974 or 15th Ed., pp-
582-3).
Dwelling and disregard of the respect due to the victim on account of her old
age should be appreciated as generic aggravating circumstances. Disregard
of sex is not aggravating because there is no evidence that the accused
deliberately intended to offend or insult the sex of the victim or showed
manifest disrespect to her womanhood (People vs. Mangsant, 65 Phil. 548;
People vs. Mori, L-23511-2, January 31, 1974, 55 SCRA 382, 404, People
vs, Jaula, 90 Phil. 379; U.S. vs. De Jesus, 14 Phil. 190).
However, those two aggravating circumstances are off-set by the mitigating
circumstances of voluntary surrender to the authorities and, as contended
by counsel de oficio, the offender's mental illness (mild psychosis or
schizophrenic reaction) which diminished his will-power without however
depriving him of consciousness of his acts. (See People vs. Francisco, 78
Phil. 694, People vs. Amit, 82 Phil. 820 and People vs. Formigones, 87 Phil.
658.)
Thus, it was held that la equivocada creencia de los acusados de que el
matar a un brujo es un bien al publico puede considerarse como una
circunstancia atenuante pues los que tienen la obsession de que los brujos
deben ser eliminados estan en la misma condicion que aquel que, atacado
de enfermedad morbosa pero consciente aun de lo que hace, no tiene
verdadero imperio de su voluntad" (People vs. Balneg 79 Phil. 805, 810).
It results that the medium period of the penalty for murder should be
imposed (Arts. 64[41 and 248, Revised Penal Code).
WHEREFORE, the death penalty is set aside. The accused is sentenced
to reclusion perpetua The indemnity imposed by the trial court is affirmed.
Costs de oficio.
SO ORDERED.
Barredo, Concepcion Jr., Fernandez, Guerrero, Abad Santos, De Castro
and Melencio-Herrera, JJ., concur.
Separate Opinions
FERNANDO, CJ., concurring:
I am unable to arrive at that stage of moral certainty as to the guilt of the
accused and hence concur in the dissent of Justice Makasiar, with the
observation that the reference in the exhaustive opinion of Justice Aquino to
Ambat, where he was also the ponente, with its learned and scholarly
discourse on the law on insanity, gives me the opportunity to express my
preference for a liberal reading of Durham v. US, 1 therein cited. For some
eminent commentators, the M' Naghten doctrine no longer speaks with
authority. In the light of the advances in medical science there is, for me, a
need for the reexamination of what until now are authoritative
pronouncements on this subject.
MAKASIAR, J., dissenting:
I dissent. The appellant should not be held liable for the crime of murder. He
was mentally ill when he committed the alleged killing of Francisca Col
(Aling Kikay), a 72-year old widow. His medical records, as properly
evaluated and confirmed by the expert testimony of the three
physicians/psychiatrists who examined and treated him, undeniably
establish the fact that appellant had been ailing with a psychotic disorder
medically known as chronic schizophrenia of the paranoid type.
Inevitably, WE must look into the nature of appellant's mental disease. Thus,
Noye's Modern Clinical Psychiatry, Seventh Edition, explains:
Symptomatically, the schizophrenic reactions are
recognizable through odd and bizarre behavior apparent in
aloofness, suspiciousness, or periods of impulsive
destructiveness and immature and exaggerated
emotionality, often ambivalently directed and considered
inappropriate by the observer. The interpersonal perceptions
are distorted in the more serious states by delusional and
hallucinatory material. (p. 355, supra).
Schizophrenia is a chronic mental disorder characterized by inability to
distinguish between fantasy and reality, and often accompanied by
hallucinations and delusions. Formerly called dementia praecox, it is the
most common form of psychosis and usually develops between the ages of
15 and 30 (Encyclopedia and Dictionary of Medicine and Nursing,
MillerKeane p. 860).
473
For a clear appreciation of appellant's mental condition, quoted hereunder
are pertinent portions of the discussion on the paranoid type of
schizophrenia:
Paranoid Types. The features that tend to be most evident in
this type or phase are delusions, which are often numerous,
illogical, and disregardful of reality, hallucinations, and the
usual schizophrenic disturbance of associations and of
affect, together with negativism.
Frequently the prepsychotic personality of the paranoid
schizophrenic is characterized by poor interpersonal rapport.
Often he is cold, withdrawn, distrustful, and resentful of other
persons. Many are truculent, have a chip-on-the-shoulder
attitude, and are argumentative, scornful, sarcastic, defiant,
resentful of suggestions or of authority, and given to caustic
remarks. Sometimes flippnant, facetious responses cover an
underlying hostility.
... The patient's previous negative attitudes become more
marked, and misinterpretations are common. Ideas of
reference are among the first symptoms. Disorders of
association appear. Many patients show an unpleasant
emotional aggressiveness, Through displacement, the
patient may begin to act out his hostile impulses. His grip on
reality begins to loosen. At first his delusions are limited, but
later they become numerous and changeable ... Delusions of
persecution are the most prominent occurrences in paranoid
schizophrenia, but expansive and obviously wish- fulfilling
Ideas and hypochondriacal and depressive delusions are not
uncommon. With increasing personality disorganization,
delusional beliefs become less logical. Verbal expressions
may be inappropriate and neologistic. The patient is
subjected to vague magical forces, and his explanations
become extremely vague and irrational. Imaginative fantasy
may become extreme but take on the value of
reality. Repressed aggressive tendencies may be released
in a major outburst some inarticulate paranoids may
manifest an unpredictable assaultiveness. Many paranoid
schizophrenics are irritable, discontented, resentful, and
angrily suspicious and show a surely aversion to being
interviewed. Some manifest an unapproachable,
aggressively hostile attitude and may have in a bitter
aloofness" Noye's Modern Clinical Psychiatry, Seventh
Edition, pp. 380 and 381, emphasis supplied).
On the prognosis of schizophrenia, the aforenamed source thus further
states:
Occasionally one observes a schizophrenic episode of a
mild, fleeting nature with no subsequent recurrence In many
instances, however, the favorable outcome should be
characterized as 'social recovery rather than as 'cured' or as
full recovery. By this it is meant that the patient is able to
return to his previous social environment and to previous or
equivalent occupation, but with minor symptoms and signs,
such as irritability, shyness, or shallowness of affective
responses.
From what has been said, it is evident that in any given case
the effect upon the personality and future adjustment of the
appearance of a schizophrenic reaction may be quite
uncertain. In some cases the course is continuously
progressive; in others it is intermittent. More frequently it is a
question of remissions and relapses in which, although from
the first interests and habits tend to be undermined
insidiously, there occur periods of adjustment at a lower level
for a considerable period of time. It is estimated that 40 per
cent of' the schizophrenic patients who enter public mental
hospitals or clinics recover or improve; the other 60 per cent
fail to improve or ultimately suffer that permanent malignant
disorganization of personality somewhat inaccurately
designated as deterioration Of committed patients who
improve sufficiently to be released, about 80 per cent leave
the mental hospital within the first year of residence. The
expectancy of recovery falls with each year of continued
illness. Roughly, about one-third of those patients who are
hospitalized during the first year of their illness make a fairly
complete recovery; one-third get a bit better and
become able to return to outside life but remain damaged
personalities and may have to return to the hospital
from time to time. ... (pp. 387-388, supraemphasis supplied).
When appellant was examined and treated for the first time on July 28,
1962, his father revealed the patient's initial symptoms of laughing alone
and making gestures, poor sleep and appetite, praying and kneeling always
and making his body rigid (per consultation chart, p. 154, CCC rec.). Upon
interview on aforesaid date, appellant stated that "he could see God" and
"That a neighbor is bewitching her" ("pinapakulam ako") Why? "hindi ko
alam kung bakit" (p. 156, CCC rec.).
474
Appellant underwent eighteen (18) treatments and checkups from July 28,
1962 to July 24, 1970 which covered eight (8) years before the alleged
crime was committed on September 8, 1970 (Medical Certificates, pp. 25
and 26, CCC rec.). In the medical certificate dated September 15, 1970, the
following was reflected:
Diagnosis — Schizophrenic Reaction — Recovered (1962)
Improved (1964) Unimproved (1966).
Per the same record dated November 22, 1966, appellant's diagnosis was
described as "Schizo- Reaction Relapse"and his condition of termination
was indicated as "Unimproved".
In appellant's "Out-Patient Psychiatric Service Record" dated January 31,
1968 (p. 126, CCC rec.), his condition of termination was described as
merely "improved" neither "recovered" nor "unimproved".
In another "Out-Patient Psychiatric Service Record" dated August 31, 1968,
patient's condition of termination was also described as "improved" only and
"treatment not completed" was noted therein (p. 137, CCC rec.).
Appellant was treated eighteen (18) times in the National Mental Hospital
and Jose Reyes Memorial Hospital from July 28, 1962 to July 24, 1970 or
for a span of 8 years, characteristic of the chronic nature of his mental
disease (pp- 4-5, TSN, November 12, 1970). Thus, on direct examination,
Dr. Carlos Vicente confirmed:
Q — From your study, when he was an out
patient at the National Mental Hospital and its
extension at the Jose Reyes Memorial
Hospital, would you say that he was and has
been suffering from chronic schizophrenia?
A — Yes, chronic, because it started in 1962
and became in remission in 1970, July. (p.
10, TSN, January 11, 1971, emphasis
supplied).
For chronic schizophrenia, the patient does not recover fully in two months'
time. His condition may simply be "in remission", which term means "social
recovery", not cured or fully recovered. Dr. Vicente thus stated:
Q — How long, if there is any usual period,
does a schizophrenic attack last at any given
time?
 A — That is waivable (sic). There are those
who cannot recover after ten days or three
months (p. 14, TSN, January 11, 19 7 1,
emphasis supplied).
xxx xxx xxx
On a schizophrenic's behavior pattern:
Q — Is it possible that a person suffering
from chronic schizophrenia can have a
violent reaction?
A — Yes, it is Possible, if he was at that time.
If he is schizophrenic at the time" (Testimony
of Dr. Carlos Vicente, p. 10, TSN, January
20, 197 1, emphasis supplied).
Q — By suffering from schizophrenia, would
you say that his suffering has affected his
power of control over his will?
A — During the time that he was suffering,
he could not stick to the right. He made
mistakes at the time that he was mentally
sick.
Q — His power of control over his will to
commit a crime is affected?
A — Yes, sir.
Q — Are you sure of that?
A — Yes, somehow it is controlled by some
Ideas, example, one who has that (im)pulse
to kill will kill" (Testimony of Dr. Carlos
Vicente, p. 17, TSN, January 11, 1971,
emphasis supplied).
On the mental condition of appellant when the alleged crime was committed
which is and should be considered determinative of his liability:
475
Q — Would you be able to state Doctor
whether the accused when he committed the
act was suffering from an onset of
schizophrenic reaction from which he has
been known to be suffering since 1962"
A — It is possible, sir, that he was already
suffering from an onset of the schizophrenic
reaction at that time" (Testimony of Dr.
Reynaldo Robles, p. 6, TSN, January
20,1971, emphasis supplied).
It should be stressed that between July 24, 1970 when appellant suffered
from his last attack or relapse and September 8, 1970 when he committed
the alleged crime, barely 1 month and 15 days had elapsed. Medically
speaking, the interval was not sufficient time for appellant's full recovery nor
did such time give any guaranty for his mental disease to be "cured."
Appellant was stin mentally sick at the time he attacked the victim. He
previously suffered from a "displacement of aggressive and hostile
behavior" when he got angry with his wife and when he tied and boxed their
dog. He had the mental delusion that a "mangkukulam" was inflicting harm
on him. This delusion found its mark on the victim whom he believed was
the "mangkukulam" and fearing that she would harm him, appellant had to
kill her in self-defense. Simply stated, the victim was a mere consequence of
his mental delusion. He killed the "mangkukulam" as personified by the
victim; he did not kin Aling Kikay herself. And the said fatal act was made by
appellant in defending himself from the "mangkukulam".
While it has been established that appellant was "manageable" and was
"presently free from any social incapacitating psychotic symptoms" during
the trial, the fact remains that at the very moment of the commission of the
alleged crime, he was still a mentally sick person. No evidence was
produced to prove otherwise against the bulk of appellant's medical history
for 8 years clearly indicative of his mental psychosis.
As earlier stated, "social recovery" of a schizophrenic does not mean that he
is "cured" (totally recovered) from the disease.
In view of the foregoing, appellant should be acquitted of the charge of
murder.
Teehankee, J., concur.
Separate Opinions
FERNANDO, CJ., concurring:
I am unable to arrive at that stage of moral certainty as to the guilt of the
accused and hence concur in the dissent of Justice Makasiar, with the
observation that the reference in the exhaustive opinion of Justice Aquino to
Ambat, where he was also the ponente, with its learned and scholarly
discourse on the law on insanity, gives me the opportunity to express my
preference for a liberal reading of Durham v. US, 1 therein cited. For some
eminent commentators, the M' Naghten doctrine no longer speaks with
authority. In the light of the advances in medical science there is, for me, a
need for the reexamination of what until now are authoritative
pronouncements on this subject.
MAKASIAR, J., dissenting:
I dissent. The appellant should not be held liable for the crime of murder. He
was mentally ill when he committed the alleged killing of Francisca Col
(Aling Kikay), a 72-year old widow. His medical records, as properly
evaluated and confirmed by the expert testimony of the three
physicians/psychiatrists who examined and treated him, undeniably
establish the fact that appellant had been ailing with a psychotic disorder
medically known as chronic schizophrenia of the paranoid type.
Inevitably, WE must look into the nature of appellant's mental disease. Thus,
Noye's Modern Clinical Psychiatry, Seventh Edition, explains:
Symptomatically, the schizophrenic reactions are
recognizable through odd and bizarre behavior apparent in
aloofness, suspiciousness, or periods of impulsive
destructiveness and immature and exaggerated
emotionality, often ambivalently directed and considered
inappropriate by the observer. The interpersonal perceptions
are distorted in the more serious states by delusional and
hallucinatory material. (p. 355, supra).
Schizophrenia is a chronic mental disorder characterized by inability to
distinguish between fantasy and reality, and often accompanied by
hallucinations and delusions. Formerly called dementia praecox, it is the
most common form of psychosis and usually develops between the ages of
15 and 30 (Encyclopedia and Dictionary of Medicine and Nursing,
MillerKeane p. 860).
476
For a clear appreciation of appellant's mental condition, quoted hereunder
are pertinent portions of the discussion on the paranoid type of
schizophrenia:
Paranoid Types. The features that tend to be most evident in
this type or phase are delusions, which are often numerous,
illogical, and disregardful of reality, hallucinations, and the
usual schizophrenic disturbance of associations and of
affect, together with negativism.
Frequently the prepsychotic personality of the paranoid
schizophrenic is characterized by poor interpersonal rapport.
Often he is cold, withdrawn, distrustful, and resentful of other
persons. Many are truculent, have a chip-on-the-shoulder
attitude, and are argumentative, scornful, sarcastic, defiant,
resentful of suggestions or of authority, and given to caustic
remarks. Sometimes flippnant, facetious responses cover an
underlying hostility.
... The patient's previous negative attitudes become more
marked, and misinterpretations are common. Ideas of
reference are among the first symptoms. Disorders of
association appear. Many patients show an unpleasant
emotional aggressiveness, Through displacement, the
patient may begin to act out his hostile impulses. His grip on
reality begins to loosen. At first his delusions are limited, but
later they become numerous and changeable ... Delusions of
persecution are the most prominent occurrences in paranoid
schizophrenia, but expansive and obviously wish- fulfilling
Ideas and hypochondriacal and depressive delusions are not
uncommon. With increasing personality disorganization,
delusional beliefs become less logical. Verbal expressions
may be inappropriate and neologistic. The patient is
subjected to vague magical forces, and his explanations
become extremely vague and irrational. Imaginative fantasy
may become extreme but take on the value of
reality. Repressed aggressive tendencies may be released
in a major outburst some inarticulate paranoids may
manifest an unpredictable assaultiveness. Many paranoid
schizophrenics are irritable, discontented, resentful, and
angrily suspicious and show a surely aversion to being
interviewed. Some manifest an unapproachable,
aggressively hostile attitude and may have in a bitter
aloofness" Noye's Modern Clinical Psychiatry, Seventh
Edition, pp. 380 and 381, emphasis supplied).
On the prognosis of schizophrenia, the aforenamed source thus further
states:
Occasionally one observes a schizophrenic episode of a
mild, fleeting nature with no subsequent recurrence In many
instances, however, the favorable outcome should be
characterized as 'social recovery rather than as 'cured' or as
full recovery. By this it is meant that the patient is able to
return to his previous social environment and to previous or
equivalent occupation, but with minor symptoms and signs,
such as irritability, shyness, or shallowness of affective
responses.
From what has been said, it is evident that in any given case
the effect upon the personality and future adjustment of the
appearance of a schizophrenic reaction may be quite
uncertain. In some cases the course is continuously
progressive; in others it is intermittent. More frequently it is a
question of remissions and relapses in which, although from
the first interests and habits tend to be undermined
insidiously, there occur periods of adjustment at a lower level
for a considerable period of time. It is estimated that 40 per
cent of' the schizophrenic patients who enter public mental
hospitals or clinics recover or improve; the other 60 per cent
fail to improve or ultimately suffer that permanent malignant
disorganization of personality somewhat inaccurately
designated as deterioration Of committed patients who
improve sufficiently to be released, about 80 per cent leave
the mental hospital within the first year of residence. The
expectancy of recovery falls with each year of continued
illness. Roughly, about one-third of those patients who are
hospitalized during the first year of their illness make a fairly
complete recovery; one-third get a bit better and
become able to return to outside life but remain damaged
personalities and may have to return to the hospital
from time to time. ... (pp. 387-388, supraemphasis supplied).
When appellant was examined and treated for the first time on July 28,
1962, his father revealed the patient's initial symptoms of laughing alone
and making gestures, poor sleep and appetite, praying and kneeling always
and making his body rigid (per consultation chart, p. 154, CCC rec.). Upon
interview on aforesaid date, appellant stated that "he could see God" and
"That a neighbor is bewitching her" ("pinapakulam ako") Why? "hindi ko
alam kung bakit" (p. 156, CCC rec.).
477
Appellant underwent eighteen (18) treatments and checkups from July 28,
1962 to July 24, 1970 which covered eight (8) years before the alleged
crime was committed on September 8, 1970 (Medical Certificates, pp. 25
and 26, CCC rec.). In the medical certificate dated September 15, 1970, the
following was reflected:
Diagnosis — Schizophrenic Reaction — Recovered (1962)
Improved (1964) Unimproved (1966).
Per the same record dated November 22, 1966, appellant's diagnosis was
described as "Schizo- Reaction Relapse"and his condition of termination
was indicated as "Unimproved".
In appellant's "Out-Patient Psychiatric Service Record" dated January 31,
1968 (p. 126, CCC rec.), his condition of termination was described as
merely "improved" neither "recovered" nor "unimproved".
In another "Out-Patient Psychiatric Service Record" dated August 31, 1968,
patient's condition of termination was also described as "improved" only and
"treatment not completed" was noted therein (p. 137, CCC rec.).
Appellant was treated eighteen (18) times in the National Mental Hospital
and Jose Reyes Memorial Hospital from July 28, 1962 to July 24, 1970 or
for a span of 8 years, characteristic of the chronic nature of his mental
disease (pp- 4-5, TSN, November 12, 1970). Thus, on direct examination,
Dr. Carlos Vicente confirmed:
Q — From your study, when he was an out
patient at the National Mental Hospital and its
extension at the Jose Reyes Memorial
Hospital, would you say that he was and has
been suffering from chronic schizophrenia?
A — Yes, chronic, because it started in 1962
and became in remission in 1970, July. (p.
10, TSN, January 11, 1971, emphasis
supplied).
For chronic schizophrenia, the patient does not recover fully in two months'
time. His condition may simply be "in remission", which term means "social
recovery", not cured or fully recovered. Dr. Vicente thus stated:
Q — How long, if there is any usual period,
does a schizophrenic attack last at any given
time?
 A — That is waivable (sic). There are those
who cannot recover after ten days or three
months (p. 14, TSN, January 11, 19 7 1,
emphasis supplied).
xxx xxx xxx
On a schizophrenic's behavior pattern:
Q — Is it possible that a person suffering
from chronic schizophrenia can have a
violent reaction?
A — Yes, it is Possible, if he was at that time.
If he is schizophrenic at the time" (Testimony
of Dr. Carlos Vicente, p. 10, TSN, January
20, 197 1, emphasis supplied).
Q — By suffering from schizophrenia, would
you say that his suffering has affected his
power of control over his will?
A — During the time that he was suffering,
he could not stick to the right. He made
mistakes at the time that he was mentally
sick.
Q — His power of control over his will to
commit a crime is affected?
A — Yes, sir.
Q — Are you sure of that?
A — Yes, somehow it is controlled by some
Ideas, example, one who has that (im)pulse
to kill will kill" (Testimony of Dr. Carlos
Vicente, p. 17, TSN, January 11, 1971,
emphasis supplied).
On the mental condition of appellant when the alleged crime was committed
which is and should be considered determinative of his liability:
478
Q — Would you be able to state Doctor
whether the accused when he committed the
act was suffering from an onset of
schizophrenic reaction from which he has
been known to be suffering since 1962"
A — It is possible, sir, that he was already
suffering from an onset of the schizophrenic
reaction at that time" (Testimony of Dr.
Reynaldo Robles, p. 6, TSN, January
20,1971, emphasis supplied).
It should be stressed that between July 24, 1970 when appellant suffered
from his last attack or relapse and September 8, 1970 when he committed
the alleged crime, barely 1 month and 15 days had elapsed. Medically
speaking, the interval was not sufficient time for appellant's full recovery nor
did such time give any guaranty for his mental disease to be "cured."
Appellant was stin mentally sick at the time he attacked the victim. He
previously suffered from a "displacement of aggressive and hostile
behavior" when he got angry with his wife and when he tied and boxed their
dog. He had the mental delusion that a "mangkukulam" was inflicting harm
on him. This delusion found its mark on the victim whom he believed was
the "mangkukulam" and fearing that she would harm him, appellant had to
kill her in self-defense. Simply stated, the victim was a mere consequence of
his mental delusion. He killed the "mangkukulam" as personified by the
victim; he did not kin Aling Kikay herself. And the said fatal act was made by
appellant in defending himself from the "mangkukulam".
While it has been established that appellant was "manageable" and was
"presently free from any social incapacitating psychotic symptoms" during
the trial, the fact remains that at the very moment of the commission of the
alleged crime, he was still a mentally sick person. No evidence was
produced to prove otherwise against the bulk of appellant's medical history
for 8 years clearly indicative of his mental psychosis.
As earlier stated, "social recovery" of a schizophrenic does not mean that he
is "cured" (totally recovered) from the disease.
In view of the foregoing, appellant should be acquitted of the charge of
murder.
Teehankee, J., concur.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 89420 July 31, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSALINO DUNGO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
PARAS, J.:
This is an automatic review of the Decision* of the Regional Trial Court of
the Third Judicial Region, Branch 54, Macabebe, Pampanga, convicting the
accused of the crime of murder.
The pertinent facts of the case are:
On March 24, 1987, the prosecuting attorney of the Province of Pampanga
filed an information charging Rosalino Dungo, the defendant-appellant
herein, with the felony of murder, committed as follows:
That on or about the 16th day of March, 1987 in the Municipality of
Apalit, Province of Pampanga, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused ROSALINO
DUNGO, armed with a knife, with deliberate intent to kill, by means
of treachery and with evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and stab Mrs.
Belen Macalino Sigua with a knife hitting her in the chest, stomach,
throat and other parts of the body thereby inflicting upon her fatal
wounds which directly caused the death of said Belen Macalino
Sigua.
All contrary to law, and with the qualifying circumstance of alevosia,
evident premeditation and the generic aggravating circumstance of
disrespect towards her sex, the crime was committed inside the field
479
office of the Department of Agrarian Reform where public authorities
are engaged in the discharge of their duties, taking advantage of
superior strength and cruelty. (Record, p. 2)
On arraignment, accused-appellant Rosalino Dungo pleaded not guilty to
the crime charged. Trial on the merits thereafter ensued.
The prosecution, through several witnesses, has established that on March
16, 1987 between the hours of 2:00 and 3:00 o'clock in the afternoon, a
male person, identified as the accused, went to the place where Mrs. Sigua
was holding office at the Department of Agrarian Reform, Apalit, Pampanga.
After a brief talk, the accused drew a knife from the envelope he was
carrying and stabbed Mrs. Sigua several times. Accomplishing the morbid
act, he went down the staircase and out of the DAR's office with blood
stained clothes, carrying along a bloodied bladed weapon. (TSN, pp. 4-19,
33-46, April 13, 1987; TSN, pp. 5-21, 28-38, April 20, 1987).
The autopsy report (Exh. "A") submitted by Dra. Melinda dela Cruz
Cabugawan reveals that the victim sustained fourteen (14) wounds, five (5)
of which were fatal.
Rodolfo Sigua, the husband of the deceased, testified that, sometime in the
latter part of February, 1987, the accused Rosalino Dungo inquired from him
concerning the actuations of his wife (the victim) in requiring so many
documents from the accused. Rodolfo Sigua explained to the accused the
procedure in the Department of Agrarian Reform but the latter just said
"never mind, I could do it my own way." Rodolfo Sigua further testified that
his wife's annual salary is P17,000.00, and he spent the amount of
P75,000.00 for the funeral and related expenses due to the untimely death
of his wife. (TSN, pp. 4-21, April 22, 1987).
The accused, in defense of himself, tried to show that he was insane at the
time of the commission of the offense.
The defense first presented the testimony of Andrea Dungo, the wife of the
accused. According to her, her husband had been engaged in farming up to
1982 when he went to Lebanon for six (6) months. Later, in December 1983,
her husband again left for Saudi Arabia and worked as welder. Her husband
did not finish his two-year contract because he got sick. Upon his arrival, he
underwent medical treatment. He was confined for one week at the
Macabali Clinic. Thereafter he had his monthly check-up. Because of his
sickness, he was not able to resume his farming. The couple, instead,
operated a small store which her husband used to tend. Two weeks prior to
March 16, 1987, she noticed her husband to be in deep thought always;
maltreating their children when he was not used to it before; demanding
another payment from his customers even if the latter had paid; chasing any
child when their children quarrelled with other children. There were also
times when her husband would inform her that his feet and head were on
fire when in truth they were not. On the fateful day of March 16, 1987, at
around noon time, her husband complained to her of stomach ache;
however, they did not bother to buy medicine as he was immediately
relieved of the pain therein. Thereafter, he went back to the store. When
Andrea followed him to the store, he was no longer there. She got worried
as he was not in his proper mind. She looked for him. She returned home
only when she was informed that her husband had arrived. While on her
way home, she heard from people the words "mesaksak" and "menaksak"
(translated as "stabbing" and "has stabbed"). She saw her husband in her
parents-in-law's house with people milling around, including the barangay
officials. She instinctively asked her husband why he did such act, but he
replied, "that is the only cure for my ailment. I have a cancer in my heart."
Her husband further said that if he would not be able to kill the victim in a
number of days, he would die, and that he chose to live longer even in jail.
The testimony on the statements of her husband was corroborated by their
neighbor Thelma Santos who heard their conversation. (See TSN, pp. 12-
16, July 10, 1987). Turning to the barangay official, her husband exclaimed,
"here is my wallet, you surrender me." However, the barangay official did not
bother to get the wallet from him. That same day the accused went to
Manila. (TSN, pp. 6-39, June 10, 1981)
Dra. Sylvia Santiago and Dr. Nicanor Echavez of the National Center for
Mental Health testified that the accused was confined in the mental hospital,
as per order of the trial court dated August 17, 1987, on August 25, 1987.
Based on the reports of their staff, they concluded that Rosalino Dungo was
psychotic or insane long before, during and after the commission of the
alleged crime and that his insanity was classified under organic mental
disorder secondary to cerebro-vascular accident or stroke. (TSN, pp. 4-33,
June 17, 1988; TSN, pp. 5-27, August 2, 1988).
Rosalino Dungo testified that he once worked in Saudi Arabia as welder.
However, he was not able to finish his two-year contract when he got sick.
He had undergone medical treatment at Macabali Clinic. However, he
claimed that he was not aware of the stabbing incident nor of the death of
Mrs. Belen Sigua. He only came to know that he was accused of the death
of Mrs. Sigua when he was already in jail. (TSN, pp. 5-14, July 15, 1988)
Rebuttal witnesses were presented by the prosecution. Dr. Vicente Balatbat
testified that the accused was his patient. He treated the accused for
ailments secondary to a stroke. While Dr. Ricardo Lim testified that the
accused suffered from oclusive disease of the brain resulting in the left side
weakness. Both attending physicians concluded that Rosalino Dungo was
somehow rehabilitated after a series of medical treatment in their clinic. Dr.
480
Leonardo Bascara further testified that the accused is functioning at a low
level of intelligence. (TSN, pp. 620, September 1, 1988; TSN, pp. 4-29,
November 7, 1988).
On January 20, 1989, the trial court rendered judgment the dispositive
portion of which reads:
WHEREFORE, finding the accused guilty beyond reasonable doubt
as principal for the crime of murder, the Court hereby renders
judgment sentencing the accused as follows:
1. To suffer the penalty of reclusion perpetua and the accessories of
the law;
2. To indemnify the family of the victim in the amount of P75,000.00
as actual damage, P20,000.00 as exemplary damages and
P30,000.00 as moral damages.
SO ORDERED. (p. 30, Rollo)
The trial court was convinced that the accused was sane during the
perpetration of the criminal act. The act of concealing a fatal weapon
indicates a conscious adoption of a pattern to kill the victim. He was
apprehended and arrested in Metro Manila which indicates that he
embarked on a flight in order to evade arrest. This to the mind of the trial
court is another indication that the accused was sane when he committed
the crime.
It is an exercise in futility to inquire into the killing itself as this is already
admitted by the defendant-appellant. The only pivotal issue before us is
whether or not the accused was insane during the commission of the crime
changed.
One who suffers from insanity at the time of the commission of the offense
charged cannot in a legal sense entertain a criminal intent and cannot be
held criminally responsible for his acts. His unlawful act is the product of a
mental disease or a mental defect. In order that insanity may relieve a
person from criminal responsibility, it is necessary that there be a complete
deprivation of intelligence in committing the act, that is, that the accused be
deprived of cognition; that he acts without the least discernment; that there
be complete absence or deprivation of the freedom of the will. (People v.
Puno, 105 SCRA 151)
It is difficult to distinguish sanity from insanity. There is no definite defined
border between sanity and insanity. Under foreign jurisdiction, there are
three major criteria in determining the existence of insanity, namely:
delusion test, irresistible impulse test, and the right and wrong test. Insane
delusion is manifested by a false belief for which there is no reasonable
basis and which would be incredible under the given circumstances to the
same person if he is of compos mentis. Under the delusion test, an insane
person believes in a state of things, the existence of which no rational
person would believe. A person acts under an irresistible impulse when, by
reason of duress or mental disease, he has lost the power to choose
between right and wrong, to avoid the act in question, his free agency being
at the time destroyed. Under the right and wrong test, a person is insane
when he suffers from such perverted condition of the mental and moral
faculties as to render him incapable of distinguishing between right and
wrong. (See 44 C.J.S. 2)
So far, under our jurisdiction, there has been no case that lays down a
definite test or criterion for insanity. However, We can apply as test or
criterion the definition of insanity under Section 1039 of the Revised
Administrative Code, which states that insanity is "a manifestation in
language or conduct, of disease or defect of the brain, or a more or less
permanently diseased or disordered condition of the mentality, functional or
organic, and characterized by perversion, inhibition, or by disordered
function of the sensory or of the intellective faculties, or by impaired or
disordered volition." Insanity as defined above is evinced by a deranged and
perverted condition of the mental faculties which is manifested in language
or conduct. An insane person has no full and clear understanding of the
nature and consequence of his act.
Thus, insanity may be shown by surrounding circumstances fairly throwing
light on the subject, such as evidence of the alleged deranged person's
general conduct and appearance, his acts and conduct inconsistent with his
previous character and habits, his irrational acts and beliefs, and his
improvident bargains.
Evidence of insanity must have reference to the mental condition of the
person whose sanity is in issue, at the very time of doing the act which is the
subject of inquiry. However, it is permissible to receive evidence of his
mental condition for a reasonable period both before and after the time of
the act in question. Direct testimony is not required nor the specific acts of
derangement essential to establish insanity as a defense. The vagaries of
the mind can only be known by outward acts: thereby we read the thoughts,
motives and emotions of a person; and through which we determine
whether his acts conform to the practice of people of sound mind. (People v.
Bonoan, 64 Phil. 87)
In the case at bar, defense's expert witnesses, who are doctors of the
National Center for Mental Health, concluded that the accused was suffering
481
from psychosis or insanity classified under organic mental disorder
secondary to cerebro-vascular accident or stroke before, during and after
the commission of the crime charged. (Exhibit L, p. 4). Accordingly, the
mental illness of the accused was characterized by perceptual disturbances
manifested through impairment of judgment and impulse control, impairment
of memory and disorientation, and hearing of strange voices. The accused
allegedly suffered from psychosis which was organic. The defect of the
brain, therefore, is permanent.
Dr. Echavez, defense's expert witness, admitted that the insanity of the
accused was permanent and did not have a period for normal thinking. To
quote
Q Is there such a lucid intervals?
A In this case, considering the nature of the organic mental disorder,
the lucid intervals unfortunately are not present, sir.
(TSN, p. 36, August 2, 1988)
However, Dr. Echavez disclosed that the manifestation or the symptoms of
psychosis may be treated with medication. (TSN, p. 26, August 2, 1988).
Thus, although the defect of the brain is permanent, the manifestation of
insanity is curable.
Dr. Echavez further testified that the accused was suffering from psychosis
since January of 1987, thus:
Q In your assessment of the patient, did you determine the length of
time the patient has been mentally ill?
A From his history, the patient started (sic) or had a stroke abroad. If
I may be allowed to scan my record, the record reveals that the
patient had a stroke in Riyadh about seven (7) months before his
contract expired and he was brought home. Sometime in January of
1987, the first manifestation is noted on the behavioral changes. He
was noted to be in deep thought, pre-occupied self, complaining of
severe headache, deferment of sleep and loss of appetite; and that
was about January of 1987, Sir. (TSN, pp. 21-22, August 2, 1988)
The defense reposed their arguments on the findings of the doctors of the
National Center for Mental Health, specifically on Dr. Echavez's assessment
that the accused has been insane since January of 1987 or three (3) months
before the commission of the crime charged. The doctors arrived at this
conclusion based on the testimonies of the accused's wife and relatives, and
after a series of medical and psychological examinations on the accused
when he was confined therein. However, We are still in quandary as to
whether the accused was really insane or not during the commission of the
offense.
The prosecution aptly rebutted the defense proposition, that the accused,
though he may be insane, has no lucid intervals. It is an undisputed fact that
a month or few weeks prior to the commission of the crime charged the
accused confronted the husband of the victim concerning the actuations of
the latter. He complained against the various requirements being asked by
the DAR office, particularly against the victim. We quote hereunder the
testimony of Atty. Rodolfo C. Sigua:
Q In the latter part of February 1987 do you remember having met
the accused Rosalino Dungo?
A Yes, sir.
Q Where?
A At our residence, sir, at San Vicente, Apalit, Pampanga.
Q Could you tell us what transpired in the latter part of February
1987, when you met the accused at your residence?
A Accused went to our residence. When I asked him what he
wanted, accused told me that he wanted to know from my wife why
she was asking so many documents: why she was requiring him to
be interviewed and file the necessary documents at the Office of the
DAR. Furthermore, he wanted to know why my wife did not want to
transfer the Certificate of Land Transfer of the landholding of his
deceased father in his name.
xxx xxx xxx
Q When the accused informed you in the latter part of February
1987 that your wife the late Belen Macalino Sigua was making hard
for him the transfer of the right of his father, what did you tell him?
A I asked the accused, "Have you talked or met my wife? Why are
you asking this question of me?"
Q What was his answer?
482
A Accused told me that he never talked nor met my wife but sent
somebody to her office to make a request for the transfer of the
landholding in the name of his deceased father in his name.
Q When you informed him about the procedure of the DAR, what
was the comment of the accused?
A The accused then said, "I now ascertained that she is making
things difficult for the transfer of the landholding in the name of my
father and my name."
(TSN, pp. 5-7, April 22, 1987)
If We are to believe the contention of the defense, the accused was
supposed to be mentally ill during this confrontation. However, it is not usual
for an insane person to confront a specified person who may have wronged
him. Be it noted that the accused was supposed to be suffering from
impairment of the memory, We infer from this confrontation that the accused
was aware of his acts. This event proves that the accused was not insane or
if insane, his insanity admitted of lucid intervals.
The testimony of defense witness Dr. Nicanor Echavez is to the effect that
the appellant could have been aware of the nature of his act at the time he
committed it. To quote:
Q Could you consider a person who is undergoing trial, not
necessarily the accused, when asked by the Court the whereabouts
of his lawyer he answered that his lawyer is not yet in Court and that
he is waiting for his counsel to appear and because his counsel did
not appear, he asked for the postponement of the hearing of the
case and to reset the same to another date. With those facts, do you
consider him insane?
A I cannot always say that he is sane or insane, sir.
Q In other words, he may be sane and he may be insane?
A Yes, sir.
COURT
Q How about if you applied this to the accused, what will be your
conclusion?
 A Having examined a particular patient, in this particular case, I
made a laboratory examination, in short all the assessment
necessary to test the behavior of the patient, like for example
praying for postponement and fleeing from the scene of the crime is
one situation to consider if the patient is really insane or not. If I may
elaborate to explain the situation of the accused, the nature of the
illness, the violent behavior, then he appears normal he can reason
out and at the next moment he burst out into violence regardless
motivated or unmotivated. This is one of the difficulties we have
encountered in this case. When we deliberated because when we
prepared this case we have really deliberation with all the members
of the medical staff so those are the things we considered. Like for
example he shouted out "Napatay ko si Mrs. Sigua!" at that
particular moment he was aware of what he did, he knows the
criminal case.
COURT
Q With that statement of yours that he was aware when he shouted
that he killed the victim in this case, Mrs. Sigua, do we get it that he
shouted those words because he was aware when he did the act?
A The fact that he shouted, Your Honor, awareness is there. (TSN,
pp. 37-41, August 2, 1983; emphasis supplied)
Insanity in law exists when there is a complete deprivation of intelligence.
The statement of one of the expert witnesses presented by the defense, Dr.
Echavez, that the accused knew the nature of what he had done makes it
highly doubtful that accused was insane when he committed the act
charged. As stated by the trial court:
The Court is convinced that the accused at the time that he
perpetrated the act was sane. The evidence shows that the
accused, at the time he perpetrated the act was carrying an
envelope where the fatal weapon was hidden. This is an evidence
that the accused consciously adopted a pattern to kill the victim. The
suddenness of the attack classified the killing as treacherous and
therefore murder. After the accused ran away from the scene of the
incident after he stabbed the victim several times, he was
apprehended and arrested in Metro Manila, an indication that he
took flight in order to evade arrest. This to the mind of the Court is
another indicia that he was conscious and knew the consequences
of his acts in stabbing the victim (Rollo, p. 63)
483
There is no ground to alter the trial court's findings and appreciation of the
evidence presented. (People v. Claudio, 160 SCRA 646). The trial court had
the privilege of examining the deportment and demeanor of the witnesses
and therefore, it can discern if such witnesses were telling the truth or not.
Generally, in criminal cases, every doubt is resolved in favor of the
accused. However, in the defense of insanity, doubt as to the fact of
1âwphi1
insanity should be resolved in fervor of sanity. The burden of proving the
affirmative allegation of insanity rests on the defense. Thus:
In considering the plea of insanity as a defense in a prosecution for
crime, the starting premise is that the law presumes all persons to
be of sound mind. (Art. 800, Civil Code: U.S. v. Martinez, 34 Phil.
305) Otherwise stated, the law presumes all acts to be voluntary,
and that it is improper to presume that acts were done
unconsciously (People v. Cruz, 109 Phil. 288). . . . Whoever,
therefore, invokes insanity as a defense has the burden of proving
its existence. (U.S. v. Zamora, 52 Phil. 218) (People v. Aldemita,
145 SCRA 451)
The quantum of evidence required to overthrow the presumption of sanity is
proof beyond reasonable doubt. Insanity is a defense in a confession and
avoidance and as such must be proved beyond reasonable doubt. Insanity
must be clearly and satisfactorily proved in order to acquit an accused on
the ground of insanity. Appellant has not successfully discharged the burden
of overcoming the presumption that he committed the crime as charged
freely, knowingly, and intelligently.
Lastly, the State should guard against sane murderer escaping punishment
through a general plea of insanity. (People v. Bonoan, supra) PREMISES
CONSIDERED, the questioned decision is hereby
AFFIRMED without costs.
SO ORDERED.
Melencio-Herrera, Padilla and Regalado, JJ., concur.
Sarmiento, J., concurs in the result.
EN BANC
[G.R. No. 126116. June 21, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. ERLINDO YAM-ID alias ELY, accused-
appellant.
DECISION
MELO, J.:
Before us on automatic review is the decision dated June 17, 1997 of
Branch 29 of the Regional Trial Court of the 7th Judicial Region
stationed in Toledo City in its Criminal Cases No. TCS-2381 and 2382
finding accused-appellant ERLINDO YAM-ID guilty of murder and
frustrated homicide, respectively, and sentencing him to suffer the
supreme penalty of death in the first case. The dispositive portion of the
decision reads:
WHEREFORE, in view of the foregoing considerations, in Crim.
Case No. TCS-2381 this Court finds the accused GUILTY of the
crime of Murder and pursuant to Rep. Act 7659 hereby imposes
the Mandatory penalty of DEATH and to indemnify the parents
of the victim the sum of P50,000.00 and to pay actual damages in
the amount of P40,000.00.
In Crim. Case No. TCS-2382, this Court finds the accused
GUILTY of the crime of Frustrated Homicide under Art. 249
RPC in relation to Art. 50 and after applying the indeterminate
sentence law, it is hereby the sentence of this Court that said
accused will suffer the penalty of SIX (6) Years and ONE (1)
DAY of Prision Mayor in its minimum period to TEN (10)
YEARS of Prision mayor in its maximum period. The OIC,
Branch Clerk of Court is hereby directed to remand the records
of these cases to the Supreme Court for automatic review.
SO ORDERED.
(p. 45, Rollo.)
484
The case for the prosecution is summarized by the Office of the
Solicitor General as follows:
Julius Cantutay was a resident of Saksak, Pinamungajan,
Cebu. Appellant Erlindo was his neighbor. So, too, was Danilo
Tejamo, his uncle, and six (6) year old Jerry Tejamo his cousin
(p. 2, tsn, July 31, 1995).
On April 1, 1994, at around 2:00 oclock in the afternoon, Julius
was sent by his grandmother, Amanda Ceniza, to Brgy. Tutay,
Pinamungajan, Cebu, to deliver benignit, a local delicacy, to his
aunt Bebing Dequiado.Jerry Tejamo was with Julius. On their
way to Dequiados house, they passed by the house of appellant
who greeted them, Good Evening. After said salutation, appellant
suddenly unsheathed a long bolo. On instinct, Julius pushed
Jerry, who was then walking in front of him, and told the latter to
run. Appellant ran after the two. Jerry was overtaken by
Julius. Julius momentarily stopped to wait for Jerry, but appellant
caught up with Jerry. Appellant stabbed Jerry with the bolo on
the left portion of his back. Not content, appellant held Jerry by
the hair and hacked him on the nape. Jerry fell to the ground. As
a coup de grace, appellant stabbed Jerry on the right side of his
back. Jerry died on the spot. Appellant then knelt over the
prostrate body of Jerry and sucked the blood from his neck (pp.
3-9, tsn, July 31, 1995).
Scared out of his wits, Julius ran towards the house of Jerry to
the latters father, Danilo Tejamo. Danilo was then sleeping,
Julius narrated the harrowing incident to Aniceta Tejamo, wife of
Danilo. Aniceta Tejamo is the sister of Juliuss father, hence, an
aunt (p. 5, tsn, Oct. 26, 1995).
Aniceta roused Danilo from his sleep and both of them ran to the
site of the incident. Before they could reach the place, however,
they were met by appellant, who had a bolo in hand. Danilo
asked appellant the whereabouts of his son. Appellant instead
answered, I will kill all of you, and immediately hacked
Danilo. Danilo was able to dodge the attack, but he slipped and
fell to the ground. Appellant struck at the fallen Danilo, who tried
to parry the attack, but Danilo nevertheless got hit on the bridge
of his nose. Danilo tried to stand, but appellant hacked him
anew. This time, Danilo was hit on the head, and he fell to the
ground, bloodied (pp. 7-11, tsn, Oct. 26, 1995).
Since Danilo was not moving anymore, Aniceta shouted that
Danilo was already dead. Appellant took hold of Danilos collar
to finish him off. Inexplicably, the tip of the bolo hit appellants
stomach and blood oozed from the wound. Perturbed, appellant
ran towards his house and threw the bolo to the ground. Danilo
regained consciousness and sought treatment (pp. 12-15, tsn, Oct.
26, 1995).
Expenses for the wake and burial of Jerry amounted to
P40,000.00 (p. 14, tsn, ibid.)
(pp. 109-112, Rollo.)
During the trial, accused-appellant denied killing the 6-year old Jerry
Tejamo and pleaded self-defense for his assault on Danilo Tejamo, Jerrys
father. He contended that due to a land dispute between his family and
the in-laws of Danilo Tejamo, the latter tried to kill him by firing at his
house. In retaliation, he hacked Danilo Tejamo at the forehead but Danilo
shot him, hitting him below the navel, in the process, causing a prolapse
(the exposure of his intestines). Then, he lost consciousness.
The trial court did not give credence to accused-appellants tale and
after trial on the merits, it found him guilty as charged.
In this automatic review, accused-appellant now makes a complete
turn-around and admits killing Jerry Tejamo. He, however, would plead
insanity, and, as to his conviction for frustrated homicide regarding his
attack on Danilo Tejamo, accused-appellant seeks reversal on the ground
that the prosecution failed to prove his intent to kill.
The People contends that accused-appellant should not be allowed to
change his theory on appeal. We do not agree. An appeal in a criminal
485
case opens the whole action for review on any question including those
not raised by the parties (People vs. Villaruel, 261 SCRA 386
(1996); People vs. Godines, 196 SCRA 765 [1991]; People vs.
Villagracia, 226 SCRA 374 [1993]; see also Tabuena vs. Sandiganbayan,
268 SCRA 332 [1997]). The reason for this rule is that every
circumstance in favor of the accused should be considered (Sacay vs.
Sandiganbayan, 142 SCRA 593 [1986]). This legal maxim acquires
greater significance in this case where accused-appellant faces the
supreme penalty of death. It is our policy that in a death penalty case, the
Court cannot rush to judgment even when a despicable homicidal felon is
involved for an erroneous conviction will have a lasting stain in our
escutcheon of justice (People vs. Alicundo, 251 SCRA 293 [1995]).
At this instance, the defense, now as represented by the Public
Attorneys Office (PAO), contends that at the time of the incident,
accused-appellant was suffering from a chronic mental disorder,
otherwise known as schizophrenia, which is characterized by a persons
inability to distinguish between fantasy and reality and is often
accompanied by hallucinations and delusions (Encyclopedia and
Dictionary of Medicine and Nursing, Miller-Keane, p. 860 cited in the
Brief for the Accused-Appellant, p. 63, Rollo).
Accused-appellants defense of insanity is anchored on the testimony
of Dr. Antonio Yapha who treated his wound. Said doctor testified that
contrary to accused-appellants claim that Danilo shot him, he did not find
any entrance for the alleged gunshot wound. The doctor said that a
wound caused by a .38 caliber slug will not result in a prolapse, that is,
the intestines slipping out of the usual place. In the words of the defense,
this belied the testimony of accused-appellant that his stomach had a
prolapse and instead bolstered the testimony of the prosecution witness
that accused-appellant tried to kill himself with a long bolo (Brief for the
Accused-Appellant. p. 63, Rollo). As further proof of insanity, the
defense cites accused-appellants gruesome act of sucking Jerry Tejamos
blood after he had mercilessly stabbed the boy to death.
Insanity is a defense in the nature of confession and avoidance, and
as such must be proved beyond reasonable doubt (People vs. Ambal, 100
SCRA 35[1980]). In considering the plea of insanity as a defense in a
criminal prosecution, the starting premise is that the law presumes all
persons to be of sound mind, or otherwise stated, the law takes for
granted that acts are done consciously. Insanity being the exception rather
than the rule in the human condition, the moral and legal presumption is
that freedom and intelligence constitute the normal condition of a person
and that a felonious or criminal act (delicto deloso) has been done with
deliberate intent, that is, with freedom, intelligence and malice and that
whoever, therefore, invokes insanity as a defense has the burden of
proving its existence (People vs. Aldemita, 145 SCRA 451 [1987] citing
Article 800, Civil Code; US vs. Martinez, 34 Phil. 305, 308
[1916]; People vs. Cruz, 109 Phil. 288, 292 [1960]; People vs. Tagasa,
68 Phil. 147, 153 [1939]; US vs. Guevarra, 27 Phil. 547 [1914]; People
vs. Renegado, 57 SCRA 275, 286 [1974]; US vs. Zamora, 32 Phil. 218
[1915]; People vs. Bascos, 44 Phil. 204 [1923]).
In the case at bar, the defense regrettably failed to discharge its
burden of proving that accused-appellant was insane at the time of the
commission of the crime. The only intimation of insanity that accused-
appellant could point at is the non-medical opinion of the PAO that
accused-appellant was suffering from schizophrenia because he sipped
his victims blood and tried to kill himself afterwards. No medical
certificate was presented to substantiate the claim of insanity. No
testimony was proffered to support the allegation. We are not aware that
the PAO now has the expertise, more so the authority, to diagnose its
clients of their mental condition. While we agree that sucking Jerrys
blood and stabbing ones self in the stomach are not acts expected of a
normal person, we, however, have to be careful in distinguishing between
insanity and passion or eccentricity, mental weakness or mere depression
resulting from some physical ailment. The State should guard against
sane murderers escaping punishment through a general plea of insanity
(People vs. So, 247 SCRA 708 [1995]; People vs. Dungo, 199 SCRA 860
[1991] citing People vs. Bonoan, 64 Phil. 87; see also People vs.
Ambal, supra).
We do not discount the possibility that accused-appellant may have
lost his mind after killing the 6-year old Jerry as manifested by his
slurping of the boys blood and his attempt to commit suicide. However,
for insanity to be appreciated as an exempting circumstance, it must be
present immediately before or at the very moment the crime is
committed, and not thereafter. We do not believe that accused-appellant
was insane when he killed Jerry and hacked Danilo before attempting to
take his own life. To reiterate, no iota of evidence was presented to prove
the same. Verily, the defense of insanity was not even raised during the
trial of the case. It is invoked only now on appeal, giving us the
impression that it is but an afterthought.
486
And now to the propriety of the penalty imposed.
The trial court cited the following as the attendant circumstances that
qualified the killing of Jerry Tejamo to murder, or aggravated the same,
to wit:
1. Bad blood existed between the family of the accused and the
complainants father-in-law due to a land dispute prior to the
incident therefore premeditation exist;
2. Treachery - the sudden and unexpected attack by the accused
against unarmed minor who is 6 years old without any means to
defend himself and the suddenness and unexpectedness of the
attack (Pp. vs. Molato, G.R. No. 66634, 29 February 1989; Pp. vs.
Canzano, 95 SCRA);
3. The killing of the victim Jerry Tejamo, a minor 6 year old child
constitutes an aggravating circumstance. There is treachery when
an adult illegally attacks a child of tender years and causes his
death (U.S. vs. Butag, 38 Phil. 746).
(p. 43, Rollo.)
and having earlier explained that
. . . The brutal and senseless killing of Jerry Tejamo, a 6 year old
child manifest accuseds perversity and callousness as a cold
blooded murderer and brings him to fore as a heinous criminal
under Rep. Act 7659 which defines heinous as a grievous, odious
and hateful offense by reason of their inherent or manifest
wickedness, viciousness, atrocity and perversity and repugnant
and outrageous to the common standard and norms of decency
and morality in a just civilized and orderly society. This is the
kind of man the accused is.
(p. 42, Rollo.)
meted out on accused-appellant the supreme penalty of death in Criminal
Case No. TCS-2381.
We affirm the finding of the trial court that treachery attended the
killing of the 6-year old Jerry Tejamo for when an adult person illegally
attacks a child of tender years and causes his death, treachery exists
(People vs. Sancholes, 271 SCRA 527 [1997]; see also People vs.
Caritativo, 256 SCRA 1 [1996]).
The trial court, however, erred in finding that evident premeditation
attended the commission of the crime. The following requisites must
concur before evident premeditation may be appreciated: (a) the time
when the accused determined to commit the crime; (b) an act manifestly
indicating that the accused had clung to his determination; and (c)
sufficient lapse of time between such determination and execution to
allow him to reflect upon the consequences of his act (People vs. Magno,
260 SCRA 300 [1996]). Here, the prosecution omitted or failed to present
any evidence to show any, much less, all of the above elements. The bad
blood that allegedly exists between accused-appellants family and the in-
laws of Danilo Tejamo, Jerrys father, does not, in any way, prove evident
premeditation.
It was thus treachery that qualified the killing of Jerry Tejamo to
murder. However, there being neither an aggravating nor a mitigating
circumstance, the maximum penalty of death imposed by the trial court
must be reduced to the indivisible penalty of reclusion perpetua in line
with our decisions in People vs. Magno, supra, and People vs. Lucas,
(240 SCRA 66 [1995]) where we explained that if there are neither
aggravating nor mitigating circumstances, then the crime, although
falling under Republic Act No. 7659, will not be punished by death but
by the lesser penalty of reclusion perpetua.
Anent the penalty imposed in Criminal Case No. TCS-2382, the
Office of the Solicitor General correctly observes that the crime
committed by accused-appellant in stabbing Danilo Tejamo constituted
only attempted homicide since the wounds suffered by Danilo were not
life threatening. Article 253 of the Revised Penal Code provides the
penalty of reclusion temporal for the crime of homicide. Under Article 51
of the Revised Penal Code, the penalty for an attempted crime is two
degrees lower than that prescribed by law. Attempted homicide is thus
punishable by prision correccional. Applying the Indeterminate Sentence
Law, the minimum penalty to be meted out on accused-appellant should
be anywhere within the range of one (1) month and one (1) day to six (6)
months of arresto mayor, and the maximum should be taken from the
medium period of prision correccional (Art. 64, par. 1) the range of
which is two (2) years, four (4) months and one (1) day, to four (4) years
and two (2) months. Considering that no aggravating or mitigating
487
circumstance attended the commission of the Attempted Homicide, the
accused-appellant shall be sentenced to an indeterminate prison term of
two (2) months and one (1) day of arresto mayor as minimum, to two (2)
years, four (4) months and one (1) day of prision correccional medium as
maximum.
WHEREFORE, the appealed decision is hereby MODIFIED,
finding accused-appellant GUILTY of MURDER in Criminal Case No.
TCS-2381 and sentencing him to suffer the reduced penalty
of RECLUSION PERPETUA. He is likewise ordered to indemnify the
parents of the victim the sum of Fifty Thousand (P50,000.00) Pesos and
to pay actual damages in the amount of Forty Thousand (P40,000.00)
Pesos. In Criminal Case No. TCS-2382, accused-appellant is found guilty
of ATTEMPTED HOMICIDE instead and sentenced to two (2) months
and one (1) day of arresto mayor, as minimum, to two (2) years, four (4)
months, and one (1) day of prision correcional, as maximum.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Puno, Vitug, Kapunan,
Mendoza, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, and Ynares-
Santiago, JJ., concur.
Panganiban, and Buena, JJ., on leave.
FIRST DIVISION
[G.R. No. 129291. July 3, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. ENRICO A. VALLEDOR, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
This is an appeal from the decision[1] of the Regional Trial
Court of Palawan and Puerto Princesa City, Branch 47, in Criminal
Case Nos. 9359, 9401, and 9489, convicting accused-appellant of
the crimes of murder, attempted murder and frustrated murder,
respectively.
 The informations filed against accused-appellant read:
In Criminal Case No. 9359, for murder:
That on or about the 6th day of March, 1991, in the
afternoon, at Barangay Tagumpay, Puerto Princesa City,
Philippines, and within the jurisdiction of this Honorable
Court, the said accused, with treachery and evident
premeditation, with intent to kill and while armed with a
knife, did then and there willfully, unlawfully and feloniously
assault, attack and stab therewith one Elsa Villon
Rodriguez thereby inflicting upon the latter
stabbed (sic) wound on the chest, which was the
immediate cause of her death.
CONTRARY TO LAW. [2]
In Criminal Case No.9401, for attempted murder:
That on or about the 6th day of March, 1991, in the
afternoon, at Bgy. Tagumpay, Puerto Princesa City,
Philippines and within the jurisdiction of this Honorable
Court, the said accused, with intent to kill, with treachery
and evident premiditation (sic) and while armed with a
knife, did then and there willfully, unlawfully and feloniously
assault, attack and stab therewith one Ricardo Maglalang
thereby inflicting upon the latter physical injuries on the
different parts of his body, thus commencing the
commission of the crime of murder directly by overt acts
and does not perform all the acts of execution which would
produce the felony by reason of some causes or accident
other than his own spontaneous desistance that is, by the
timely and able medical assistance rendered to said
Ricardo Maglalang which prevented his death.
CONTRARY TO LAW. [3]
488
In Criminal Case No.9489, for frustrated murder:
That on or about the 6th day of March, 1991 at Bgy.
Tagumpay, Puerto Princesa City, Philippines and within the
jurisdiction of this Honorable Court the above-named
accused, with intent to kill with treachery and
evidence (sic) premeditation and while armed with a
butcher knife, did then and there willfully, unlawfully and
feloniously assault, attack and stab therewith
on (sic) Roger Cabiguen, hitting him on his right forearm,
thus performing all the acts of execution which produce the
crime of murder as a consequence but which nevertheless
did not produce it by reason of causes independent of his
will, that is, by the timely and able medical attendance
rendered to him which saved his life.
CONTRARY TO LAW. [4]
After his arrest, accused-appellant was intermittently confined
at the National Center for Mental Health. Thus, he was arraigned
only on February 19, 1993 wherein he pleaded not
guilty.[5]Thereafter, the cases were archived until November 15,
1994, when accused-appellant was declared mentally fit to
withstand trial.[6] This time, accused-appellant admitted commission
of the crimes charged but invoked the exempting circumstance of
insanity. The lower court thus conducted reverse and joint trial, at
which the following facts were established:
On March 6, 1991, at around 1:45 in the afternoon, Roger
Cabiguen was in his house at Burgos Street, Barangay Tagumpay,
Puerto Princesa City. He was working on a lettering job inside his
bedroom together with his first cousin, then 25-year old Elsa
Rodriguez, and his friends, Simplicio Yayen and Antonio
Magbanua. Roger was working at his table and seated on his bed
while Elsa was across the table. Antonio was on the left side,
while Simplicio was seated near the door, on the right side of
Roger.[7]
All of a sudden, accused-appellant entered the room; uttered
Rogers nickname (Jer) and immediately attacked him with a knife,
but Roger was able to parry the thrust and was stabbed instead on
the right forearm. Accused-appellant then stabbed Elsa Rodriguez
on the chest and said, Ako akabales den, Elsa. (I had my revenge,
Elsa). Thereafter, accused-appellant fled, leaving the stunned
Simplicio and Antonio unharmed.[8]
Roger and Elsa were immediately brought to the hospital. On
their way out, Antonio noticed a commotion and saw that Ricardo
Maglalang, a neighbor of the victim, was wounded. Antonio
learned from the by-standers that Ricardo was likewise stabbed by
accused-appellant.[9]
Upon reaching the hospital, Elsa was declared dead on
arrival. Roger on the other hand was treated for the 5-centimeter
wound sustained by him on his right forearm.[10]
Prosecution witness Roger Cabiguen testified that sometime in
1980, accused-appellant suspected him of killing his pet dog. In
1989, accused-appellant courted Elsa but she jilted him. On one
occasion, Elsa spat on and slapped accused-appellant.[11]
Accused-appellants defense of insanity was anchored on the
following facts:
Accused-appellant, then 30 years of age, was a resident of
Barangay Tagumpay, Puerto Princesa City, and employed as
provincial jail guard at the Palawan Provincial Jail. Sometime in
January 1990, Pacita Valledor, his mother noticed that accused-
appellant was behaving abnormally. For days he was restless and
unable to sleep. He likewise complained that their neighbors were
spreading rumors that he was a rapist and a thief. This prompted
Pacita to bring his son to Dr. Deriomedes de Guzman, a medical
practitioner. Pacita disclosed to Dr. de Guzman that insanity runs
in their family. After examining accused-appellant, Dr. de Guzman
diagnosed him as suffering from psychosis with
schizophrenia. He prescribed a depressant known as Thoracin,
[12]
which kept accused-appellant sane for a period two months.[13]
On March 4, 1991, Pacita noticed that accused-appellant was
again acting strangely. She left to buy Thoracin but when she
returned he was nowhere to be found.[14]
On March 6, 1991, at around 6:00 in the morning, accused-
appellant was seen swimming across the river of Barangay
489
Caruray, San Vicente, Palawan. Barangay Captain Rufino Nuez
and Barangay Councilman Antonio Sibunga took accused-
appellant out of the water and took him on board a pump
boat. Inside the boat, accused-appellant kept on crying and
uttering words to the effect that his family will be killed. Suspecting
that accused-appellant was mentally ill, Barangay Captain Nuez,
asked Councilman Sibunga to accompany accused-appellant to
Puerto Princesa City.Sibunga acceded and thereafter took a
jeepney with accused-appellant at Barangay Bahile. At about 1:00
in the afternoon, they reached Junction I at the intersection of the
National Highway and Rizal Avenue, Puerto Princesa
City. Suddenly, accused-appellant jumped off the
jeepney. Sibunga tried but failed to chase accused-appellant, who
immediately boarded a tricycle. Later that day, he learned that
accused-appellant killed and harmed somebody.[15]
Meanwhile, at around 2:00 in the afternoon of March 6, 1991,
Pacita Valledor was awakened by her daughter who told her that
accused-appellant has returned. She rushed out of the house and
saw him standing in the middle of the road, dusty and dirty. She
asked him where he came from but his answer was Pinatay niya
kayong lahat. Pacita dragged him inside the house and later
learned that he killed and wounded their neighbors. Thirty minutes
later, accused-appellant was arrested and detained at the city
jail.[16]
On March 11, 1991, Dr. Manuel Bilog, City Health Officer I of
Puerto Princesa City interviewed accused-appellant and thereafter
made the following conclusions and recommendation, to wit:
PHYSICAL EXAMINATION:
Cooperative; talkative but incoherent
Disoriented as to time, place and person
DISPOSITION AND RECOMMENDATION:
Respectfully recommending that subject patient be
committed to the National Mental Hospital, Metro Manila for
proper medical care and evaluation soonest. [17]
 The defense offered in evidence the April 27, 1992 medical
findings on accused-appellant by Dr. Guia Melendres of the
National Center for Mental Health, pertinent portion of which
reads:
REMARKS AND RECCOMENDATION:
In view of the foregoing history, observations, physical
mental and psychological examinations the patient Enrico
Valledor y Andusay is found suffering from Psychosis or
Insanity classified under Schizophrenia. This is a thought
disorder characterized by deterioration from previous level
of functioning, auditory hallucination, ideas of reference,
delusion of control, suspiciousness, poor judgment and
absence of insight.
Likewise, he is found to be suffering from Psychoactive
Substance Use Disorder, Alcohol, abuse. This is
characterized by a maladaptive pattern of psychoactive
substance use indicated by continued use despite
knowledge of having a persistent or recurrent social,
occupational, psychological or physical problems. [18]
Dr. Oscar Magtang, a psychiatrist assigned at the Medical
Service of the PNP, Puerto Princesa City was likewise presented
by the defense to interpret the aforecited findings of Dr.
Melendres.[19]
On February 28, 1997, the trial court rendered the assailed
judgment of conviction. The dispositive portion thereof reads:
WHEREFORE, premises considered, the accused
ENRICO A. VALLEDOR is hereby found guilty beyond
reasonable doubt of the crimes of MURDER in Criminal
Case No. 9359; of FRUSTRATED MURDER in Criminal
Case No. 9489; and of ATTEMPTED MURDER in Criminal
Case No. 9401 as charged herein. Accordingly he is
hereby sentenced to suffer the penalty of reclusion
490
perpetua in Criminal Case No. 9359; reclusion perpetua in
Criminal Case No. 9489; and imprisonment of from EIGHT
(8) YEARS and ONE (1) DAY to TEN (10) YEARS in
Criminal Case No. 9401. It is understood that the accused
shall serve these penalties successively or one after the
other.
The accused is also ordered to indemnify the heirs of the
deceased victim Elsa Villon Rodriguez the sum of
P50,000.00 and to indemnify the victim Roger Cabiguen,
the sum of P14,000.00 as actual damages, and the sum
P15,000.00 for loss of income.
Considering that the accused is found to be suffering from
a serious mental disorder at present as certified to by the
National Center for Mental Health, Mandaluyong City,
Metro Manila, the service of his sentence is hereby ordered
SUSPENDED pursuant to Article 12 and 79 of the Revised
Penal Code. He (Enrico Valledor) is ordered shipped to
and confined at the National Center for Mental Health,
Mandaluyong City, Metro Manila, for his treatment, until
such time that he becomes fit for the service of his
sentence at the national penitentiary, Muntinlupa, Metro
Manila. As to his civil liability, the same is subject to
execution after this judgment shall have become final
executory.
IT IS ORDERED. [20]
Accused-appellant interposed this appeal and raised the lone
assignment of error that:
THE LOWER COURT ERRED IN CONVICTING THE
ACCUSED DESPITE THE FACT THAT WHEN HE
ALLEGEDLY COMMITTED THE OFFENSE CHARGED
HE WAS MENTALLY ILL, OUT OF HIS MIND OR INSANE
AT THE (sic) TIME. [21]
 The appeal has no merit.
In considering a plea of insanity as a defense, the starting
premise is that the law presumes all persons to be of sound
mind. Otherwise stated, the law presumes all acts to be voluntary,
and it is improper to presume that acts were done unconsciously. [22]
In People v. Estrada,[23] it was held that:
In the eyes of the law, insanity exists when there is a
complete deprivation of intelligence in committing the act.
Mere abnormality of the mental faculties will not exclude
imputability. The accused must be "so insane as to be
incapable of entertaining a criminal intent." He must be
deprived of reason and act without the least discernment
because there is a complete absence of the power to
discern or a total deprivation of freedom of the will.
Since the presumption is always in favor of sanity, he who
invokes insanity as an exempting circumstance must prove
it by clear and positive evidence. And the evidence on this
point must refer to the time preceding the act under
prosecution or to the very moment of its execution.
Insanity is evinced by a deranged and perverted condition of
the mental faculties which is manifested in language and conduct.
An insane person has no full and clear understanding of the nature
and consequences of his acts. Hence, insanity may be shown by
the surrounding circumstances fairly throwing light on the subject,
such as evidence of the alleged deranged person's general
conduct and appearance, his acts and conduct consistent with his
previous character and habits, his irrational acts and beliefs, as
well as his improvident bargains. The vagaries of the mind can
only be known by outward acts, by means of which we read
thoughts, motives and emotions of a person, and through which
we determine whether the acts conform to the practice of people of
sound mind.[24]
In the case at bar, accused-appellant failed to discharge the
burden of overcoming the presumption of sanity at the time of the
491
commission of the crime. The following circumstances clearly and
unmistakably show that accused-
appellant was not legally insane when he perpetrated the acts for
which he was charged: 1) Simplicio Yayen was positioned nearest
to accused-appellant but thelatter chose to stab Roger and Elsa;
2) Accused-appellant called out the nickname of Roger before
stabbing him; 3) Simplicio Yayen and Antonio Magbanua who
were likewise inside the room were left unharmed; 4) Accused-
appellant, a spurned suitor of Elsa, uttered the words, Ako
akabales den, Elsa. (I had my revenge, Elsa) after stabbing her;
and 5) Accused-appellant hurriedly left the room after stabbing the
victims.
Evidently, the foregoing acts could hardly be said to be
performed by one who was in a state of a complete absence of the
power to discern. Judging from his acts, accused-appellant was
clearly aware and in control of what he was doing as he in fact
purposely chose to stab only the two victims. Two other people
were also inside the room, one of them was nearest to the door
where accused-appellant emerged, but the latter went for the
victims. His obvious motive of revenge against the victims was
accentuated by calling out their names and uttering the words, I
had my revenge after stabbing them. Finally, his act of
immediately fleeing from the scene after the incident indicates that
he was aware of the wrong he has done and the consequence
thereof.
Accused-appellants acts prior to the stabbing incident to
wit: crying; swimming in the river with his clothes on; and jumping
off the jeepney; were not sufficient to prove that he was indeed
insane at the time of the commission of the crime. As consistently
held by this Court, A man may act crazy but it does not necessarily
and conclusively prove that he is legally so.[25] Then, too, the
medical findings showing that accused-appellant was suffering
from a mental disorder after the commission of the crime, has no
bearing on his liability. What is decisive is his mental condition at
the time of the perpetration of the offense. Failing to discharge the
burden of proving that he was legally insane when he stabbed the
victims, he should be held liable for his felonious acts.
In Criminal Case No. 9489, accused-appellant should be held
liable only for attempted murder and not frustrated murder. The
wound sustained by Roger Cabiguen on his right forearm was not
fatal. The settled rule is that where the wound inflicted on the
victim is not sufficient to cause his death, the crime is only
attempted murder, since the accused did not perform all the acts
of execution that would have brought about death.[26]
Pursuant to Article 51 of the Revised Penal Code, the penalty
to be imposed upon the principal of an attempted crime shall be
lower by two degrees than that prescribed for the consummated
felony. Before its amendment by R.A. No. 7659, Article 248
provided that the penalty for murder was reclusion temporal in its
maximum period to death. Under Article 61(3), the penalty two
degrees lower would be prision correccional maximum to prision
mayor medium. As there is no modifying circumstance, the
medium period of the penalty, which is prision mayor minimum,
should be imposed. Under the Indeterminate Sentence Law,
accused-appellant is entitled to a minimum penalty of arresto
mayor in its maximum period to prision correcional in its medium
period, the penalty next lower than the penalty for attempted
murder.[27]
For the murder of Elsa Rodriguez, in Criminal Case No. 9359,
the trial court correctly imposed upon accused-appellant the
penalty of reclusion perpetua, considering that no aggravating or
mitigating circumstance was proven by the prosecution.
Accused-appellants civil liability must be modified. Not being
substantiated by evidence, the award of P14,000.00 as actual
damages, and P15,000.00 for loss of income, to Roger Cabiguen
in Criminal Case No. 9489, should be deleted. However, in lieu
thereof, temperate damages under Article 2224 of the Civil Code
may be recovered, as it has been shown that Roger Cabiguen
suffered some pecuniary loss but the amount thereof cannot be
proved with certainty. For this reason, an award of P10,000.00 by
way of temperate damages should suffice.[28]
In addition to the amount of P50,000.00 as civil indemnity
which was properly awarded by the trial court in Criminal Case No.
9359, the heirs of Elsa Rodriguez are entitled to another
P50,000.00 as moral damages which needs no proof since the
conviction of accused-appellant for the crime of murder is sufficient
justification for said award.[29] The heirs of the deceased are
492
likewise entitled to the amount of P29,250.00 representing actual
damages[30] based on the agreement of the parties.[31]
WHEREFORE, in view of all the foregoing, the decision of the
Regional Trial Court of Palawan and Puerto Princesa City, Branch
47, is MODIFIED as follows:
1. In Criminal Case No. 9359, accused-appellant Enrico A.
Valledor is hereby found guilty beyond reasonable doubt of
the crime of murder and is sentenced to suffer the penalty
of reclusion perpetua; and to indemnify the heirs of the
deceased Elsa Rodriguez the following amounts:
P50,000.00 as civil indemnity, P50,000.00 as moral
damages and P29,250.00 as actual damages;
2. In Criminal Case No. 9489, accused-appellant is found
guilty beyond reasonable doubt only of the crime of
attempted murder and is sentenced to an indeterminate
penalty of four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years of prision
mayor, as maximum; and to indemnify Roger Cabiguen in
the amount of P10,000.00 by way of temperate damages;
3. In Criminal Case No. 9401, accused-appellant is found
guilty beyond reasonable doubt of the crime of attempted
murder and is sentenced to an indeterminate penalty of
four (4) years and two (2) months of prision correccional,
as minimum, to eight (8) years of prision mayor, as
maximum.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Kapunan, and Austria-
Martinez, JJ., concur.
EN BANC
 [G.R. No. 148695. May 27, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs. RANDY
BELONIO y LANDAS, appellant.
DECISION
PER CURIAM:
For automatic review before this Court is the
Decision of the Regional Trial Court (RTC) of Negros
[1]
Occidental (Branch 50 stationed in Bacolod City) in
Criminal Case No. 00-20595, dated February 26, 2001,
finding Randy Belonio y Landas guilty beyond reasonable
doubt of the crime of Murder and sentencing him to death.
The Amended Information dated April 27, 2000,
charged appellant with Murder as follows:
That on or about the 6th day of January, 2000, in the City of
Talisay, Province of Negros Occidental, Philippines, and within
the jurisdiction of this Honorable Court, the above-named
accused, armed with an improvised knife, with intent to kill, and
with treachery and evident premeditation, did then and there
wilfully, unlawfully and feloniously attack, assault and stab one
RAMY TAMAYO, thus causing injuries in the vital parts of the
body of the latter which caused his instantaneous death.
That accused RANDY BELONIO y LANDAS is a recidivist for
having been convicted by final judgment of 4 years, two (2)
months, one day to six years in Crim. Case 94-16609 entitled:
People of the Philippines vs. Randy Belonio y Landas for
Homicide. [2]
Upon his arraignment on May 24, 2000, appellant, [3]
assisted by his counsel de oficio, pleaded not guilty.
493
In his Brief, the Solicitor General narrates the factual
[4]
antecedents of the case, as summarized by the trial court,
as follows:
Jennifer Carampatana testified that on January 6, 2000, her
grandmother was buried and there was a wake in their house at
Brgy. Zone 14 in the evening. Her first cousin, the late Ramy
Tamayo, also called Ramon Tamayo, arrived in their house at
about 10:00 P.M. together with his wife.
Jennifer invited Ramy to talk outside of their house. Before they
could sit on a nearby bench, Ramy decided to buy cigarettes from
a store only a few meters away. The store was furnished with a
small opening for the store-keeper to attend to the customers and
Ramy was occupying that space in front of the opening to pay
when the accused Randy Belonio arrived. Randy tried to force
his way in front of the opening and as a consequence, he bumped
on Ramy. Jennifer saw that Randy gave Ramy a long and hard
look.
Jennifer said that he and Ramy sat and talked on the bench. The
accused came over and sat on the other end of the bench. Then
the accused asked Ramy for the latters cigarette lighter. The
accused asked Ramy from what place did he come from and why
was he there. Ramy answered the accused in a normal manner.
The accused left but after a few minutes he returned, Jennifer,
who was facing the direction of the approaching accused, saw
him and noticed that he was wearing long sleeves. Ramy Tamayo
could not see the accused as he was facing sideways to
Jennifer. Without saying a word and without warning, the
accused delivered a stabbing blow with a dagger which was
concealed in his hand. Ramy was hit on the right chest, Jennifer
stood up and ran towards her house shouting for help. There at
the gate of the fence of her house, she heard another thudding
sound of a stabbing blow. When Jennifer entered her house, she
announced that Ramy was stabbed.
Jennifer and her relatives rushed out of the house. Jennifer saw
the accused running away towards the back of the barangay
hall. The Tanods who came over failed to find the accused. Then
when the Barangay Captain and the policemen arrived, Jennifer
informed them of the direction towards which the accused
fled. The accused was arrested from one (1) of the houses near
the barangay hall where he took refuge.
Dr. Raul V. Pama, Jr. was the acting City Health Officer of
Talisay City on January 6, 2000. He conducted an autopsy on the
remains of Ramy Tamayo and listed his findings in a necropsy
report which he prepared.These findings are as follows:
1. Stabbed wound, 1.7 cm. in length, sutured sharp on one (1)
and (inferior portion) and blunt on the other end (superior
portion) located at the 4th intercostal space;
Dr. Pama explained that the wound is just above the left nipple
and it penetrated downward hitting the left side on the heart;
2. Stabbed wound at the sternal. The wound is situated just above
the site of the first wound.
The first wound was fatal as it damaged the heart. [5]
In his Brief, Randy Belonio adopted the above findings
[6]
of the trial court and the prosecution. However, he raises
the defense of insanity, an exempting circumstance, and
for such purpose, depends on the expert assessment of his
witness, Dr. Antonio Gauzon, who certified thus:
This is an individual who is suffering from (Schizophrenia),
Chronic Undifferentiated and probably triggered by (s)ubstance
abuse of Shabu and Marijuana.
494
Recommending treatment and rehabilitation in a mental
institution like the National Center for Mental (H)ealth in
Mandaluyong City or treatment in the psychiatric unit of the
Corazon Locsin Montelibano Regional Hospital in Bacolod City
and later rehabilitation in the Negros (O)ccidental Mental Health
Center at Paglaum Village, Bacolod City. [7]
The RTC was convinced beyond reasonable doubt that
appellant was guilty of Murder and that he had full control
of his mental faculties. It held that the testimony of Dr.
Ester Regina Servando was more weighty and credible
than that of Dr. Gauzon. [8]
The trial court convicted appellant, thus:
FOR ALL THE FOREGOING, the Court finds the accused
Randy Belonio y Landas GUILTY beyond reasonable doubt of
the crime of Murder defined and penalized under Article 248 of
the Revised Penal Code as charged in the Information, as
Principal by Direct (Participation) with the qualifying
aggravating circumstance of treachery and the special
aggravating circumstance of recidivism. There are no other
aggravating circumstances nor is there any mitigating
circumstance. Accordingly, the accused is sentenced to suffer the
supreme penalty of DEATH.
The accused is held civilly liable to pay the heirs of Randy
Tamayo the following amounts:
1. The sum of P50,000.00 as death indemnity;
2. The sum of P3,629.70 as reimbursement for hospital
expenses;
3. The sum of P940,716.00 as compensatory damages;
and
4. The sum of P100,000.00 in favor of Mrs. Jinky Tamayo
as moral damages.[9]
 Hence this automatic review.
In his brief, appellant assigns this lone alleged error of
the court a quo for our consideration:
The trial court seriously erred in not appreciating the exempting
circumstance of insanity pursuant to Article 12 of the Revised
Penal Code, as amended favoring the accused-appellant. [10]
In support of his appeal, appellant argues that he was
not in his right and normal frame of mind when the killing
took place. He avers that no normal person would ever
bump another person, give the latter a hard look and
eventually stab him to death. He adds that he and the
victim did not know each other at that time. [11]
Appellant also asseverates that Dr. Gauzon is a reliable
expert witness and is more knowledgeable and
experienced than Dr. Servando. He explains that Dr.
[12]
Servando was once under the tutelage of Dr. Gauzon and
that at the time of their respective testimonies, the former
was only 37 years old, while the latter was 57 years
old. Appellant also cites portions of the trial courts
[13]
Decision where Dr. Gauzon referred him to the Bacolod
City Health Office for psychiatric examination. The trial
court also branded the accused as a homicidal maniac,
which appellant says, is judicial notice of his mental
sickness. In sum, he concludes that all of these
[14]
circumstances show that he was insane at the time of the
killing.
We find these arguments without merit.
The moral and legal presumption is that one acts with
free will and intelligence, and that a felonious or criminal
act has been done with deliberate intent, that is, with
freedom and intelligence. Whoever, therefore, invokes
[15]
495
insanity as a defense has the burden of proving its
existence.
Insanity is a defense in the nature of confession and
avoidance, and as such must be adequately proved. The [16]
law presumes that all persons are of sound mind, and that
acts are done consciously. [17]
In the case at bar, the defense utterly failed to
discharge its burden of proving that appellant was
insane. The testimony or proof of appellants insanity must
relate to the time preceding or the very moment of the
commission of the offense charged. We find the evidence
[18]
adduced by the defense sorely insufficient to establish his
claim that he was insane at the time he killed Tamayo.
The main circumstances presented by the defense that
remotely evinces that appellant was insane at that time
was his act of bumping the victim, without any apparent
reason, giving him a long hard look, and then eventually
stabbing him. However, this sequence of events cannot
overcome the legal presumption of sanity, let alone prove
appellants insanity.
In the eyes of the law, insanity exists when there is a
complete deprivation of intelligence in committing the
act. Proof of the existence of some abnormality of the
mental faculties will not exclude imputability, if it can be
shown that the offender was not completely deprived of
freedom and intelligence. As culled from the trial courts
[19]
findings, Belonio, after giving the victim a hard and
resentful look, sat near the latter, lighted his cigarette and
conversed with him. Afterwards, he left and came back
[20]
armed with a dagger with which he stabbed
Tamayo. Immediately thereafter, he escaped and went into
hiding. Contrary to a finding of the existence of insanity,
these acts tend to establish that Belonio was well aware of
what he had just committed, and was capable of
distinguishing right from wrong. Otherwise, he would not
have attempted to escape and go into hiding.
Aside from the bumping incident earlier discussed, the
only other evidence of insanity that appellant could
relevantly point to is the medical certificate prepared by Dr.
Antonio Gauzon stating that Belonio was suffering from
schizophrenia. This witness was presented to refute the
findings of the prosecutions expert witness Dr. Ester
Regina Servando which negated the existence of this
mental condition.
A run-through of Dr. Gauzons testimony strengthens
this Courts resolve to affirm the lower courts findings. Part
of his testimony is reproduced as follows:
ATTY. JACILDO:
Q. Now, from this Medical Certificate, Doctor, there is specifically
mentioned here that the subject here was found to be
incoherent and irrelevant and disoriented as to time, person and
place, and that there was plight of ideas and adjustment, as well
as insights. Will you kindly explain this to this Honorable Court?
A. What meant there is that, when you talk to the individual,
sometimes you get answers right, sometimes it is wrong. That is
when you say that he is incoherent. When you say irrelevant,
that pertain to the question. Now, as far as dates, he could not
remember the date. As far (as) the place, he could not recall the
place when he was in my office. And some of the persons that
were with him, he could not identify them. Now, when I say that
there was plight of ideas, that (was) when he was talking. As a
matter of fact, I gave an example, when I asked a question
when I asked him about the first killing incident and his answer
was, face to face kami, simbahan namon kag inagaw namon
ang baril because of warship. That is only one, because there
were others that you could not understand what he was talking
about whether you have to rely only on other things. And
sometimes, he would talk on things which are not there. That
means he was hallucinating. Now, judgment is usually
poor. Because, when I asked him of what he will do regarding
the case, he would just say that, Ti, amo na ya. And he said,
Ano kamo da ya? kay ang warship. So, I was asking him about
496
the values of what he was doing and he could not give me that
answer. And he does not know what he was doing. That means
that there was no reality testing. He does not know what is the
real fantasy.
xxxxxxxxx
Q. Now in your opinion as an expert in terms of Psychiatry, about
how long has the subject, Randy Belonio, been suffering from
his mental disorder that you mentioned in your Medical
Certificate?
A. Since childhood. If you would notice, I put there in the history that
his father was medically disabled when he was ten (10) years
old, and the mother was only a fish vendor and there were, I
think, eight (8) to ten (10) in the family and with a meager
income and have to (fend) for themselves. And in a very young
age of ten (10), the parents had the attitude of Bahala na ang
kabata-an. That means, they have to take care of
themselves. At age 13, he was brought by the relative to
Manila, and although he was incoherent, you can get from his
answer by mentioning so many places, (like) Manila, Pasay,
Caloocan, Novaliches, MRT, Cubao. That means, at age 13, he
was already around these areas (f)ending for himself. And the
(s)treet (u)rchins, you know for a fact, that they are influenced
by drugs. So, by that time, with that dysfunctional family, and
without any family to take care of himself, he was not doing
what the society expects him to do. So that they have
dysfunctional family and with dysfunctional relatives. So, the
value system was really poor. So that the thinking process of
this individual was not developed to what the society expects
him to be. So, it started at that time. So, when he was taking
shabu, it triggered every tissue that the symptoms came
out. Thats why, he became suspicious, (he) became irritable
and anybody who would try to not befriend him and tried to be
angry with him, he would immediately suspect that something
would happen to him in which he would react by defending
himself, and probably by killing. This individual had, actually,
committed, say, killing. I would not say murder because thats
your term, but he had killed already three (3) persons in
different years. So, he does not already know what he was
doing because he was psychotic, which in your parlance is
insane.
 Q. Now, Doctor, on January 6, 2000, and even prior to this date,
what you are trying to say is that, this subject, Randy Belonio,
was already suffering from schizophrenia?
A. Yes.[21]
Dr. Gauzon testified that based on his interview with
Belonio on October 25, 2000 (around nine months after the
stabbing incident) the latter was suffering from
schizophrenia. However, the evidence of insanity after the
fact of commission of the offense may be accorded weight
only if there is also proof of alleged abnormal behavior
immediately before or simultaneous to the commission of
the crime. [22]
The first set of facts narrated by the doctor relates to
Belonios condition during the interview, months after the
incident. His report was silent as regards the incidents
occurring prior to or during the circumstance for which
Belonio stands trial. The second part of his testimony dwelt
on Belonios life history, which was offered to prove that he
had been suffering from his alleged condition since
childhood.
However, perusing the story as narrated by the doctor,
the same was a mere statement of Belonios life and family
history, explaining what brought about his supposed mental
condition. There was no showing that he was actually
suffering from schizophrenia during his juvenile years. To
demonstrate that he had been suffering from this condition,
the doctor pointed to the fact that he has already killed
three (3) persons, including the present incident. However,
such conclusion is non sequitur and, at best, a circuitous
argument. Further, the veracity of these findings is belied
by the fact that the accused did not raise this defense
during his prosecutions for the other killings. No other
circumstances evincing its existence were presented
during trial.
497
Furthermore, Dr. Gauzons examination cannot
surmount Dr. Servandos punctilious and overwhelming
analysis, which took two days to narrate. She explained the
history of the accused, including his family and medical
background, conducted a mental status examination, which
was based on her direct interviews with him, and gave a
series of other written psychological examinations. [23]
The portion of Dr. Servandos testimony pertinent to her
findings regarding Belonios mental condition is quoted as
follows:
FISCAL AGRAVIADOR:
Q. Can you please read for the record this (r)esult which consist
only of one (1) sentence?
A. Psychiatric Evaluation Result. Base(d) on history, mental status
examination, and psychological examination, patient was noted
to be evasive, suspicious, and manipulative but no psychotic
features were observed upon evaluation. x x x.
Q. So, let us first, may I ask, what do you me(a)n by patient was
noted to be evasive, suspicious, and manipulative?
A. Actually, during the psychological examination, we have to give
series of questions. And then the patient (does) not answer
directly to our question. He would go around the bush. And
then, after that, we also found out during the result of the
psychological examination that the same pattern was noted.
Q. Does this mean that he was totally capable of being manipulative
or evasive?
A. Yes.
Q. He did it intentionally?
A. Yes.
Q. With the knowledge that he knew the answer but does not want
to give the answer?
A. Yes.
Q. Meaning to say, that he has full control of his mental faculties that
time?
 A. Yes.
Q. Because there was an intention to be manipulative and there was
an intention to be evasive because he was suspicious?
A. Yes.
Q. When you said that there was no psychotic features(,) x x x
(w)hat does this mean?
A. When you say psychosis, those are compose[d] of symptoms
such as delusion and hallucination that are being extracted from
the patient or being displayed by the patient. However, during
the examination, the symptom or the patients answers are not
enough to put him to a criteria of psychosis because the
delusion and the hallucination as well as the thought process,
the thought contents must be concretized enough in order for us
to determine to diagnose that this patient is actually suffering
from psychosis.
Q. So, subjected to your examination, this patient did not come up to
the level where he could be diagnosed as having delusion and
hallucinations?
A. Leading to psychotic features.
Q. So, that is the meaning of not having psychotic features?
A. Yes.[24]
The insanity issue raised by appellant boils down to the
credibility of these two expert witnesses and their
respective testimonies. The time-honored doctrine is that
the question of which witness to believe is one best
addressed by the trial court. The findings of fact of the
judges who heard the evidence are accorded great respect
and are seldom disturbed on appeal for they had the
opportunity to directly observe the witnesses, and to
determine by their demeanor on the stand the probative
value of their testimonies. The Court finds no cogent
[25]
reason to disturb the ruling of the trial court which found Dr.
Servandos testimony more credible for the following
reasons:
498
1. It could not be gainsaid that Dr. Servando is a disinterested
and unbiased witness. She does not know the accused and she is
not known to the accused. She will not be benefited if the Court
upholds her findings and she had no reason to testify falsely. On
the other hand, Dr. Gauzon was admittedly paid for his services,
hence, it could not be truly said that he is an impartial and
disinterested witness. If his findings (are) upheld, the benefit to
the practice of his profession is enormous;
2. As a government official, Dr. Servando has the presumption of
regularity in the performance of her duty. No such presumption
arises in favor of Dr. Gauzon;
3. The findings of Dr. Servando that the accused is evasive and
manipulative is supported by the Courts own observation. x x x.
xxxxxxxxx
4. The conclusion of Dr. Gauzon is principally based on his
interview with the accused and the members of the accuseds
family. It was the members of the accuseds family, the sister of
the accused who informed Dr. Gauzon that at the age of 13, the
accused began to use drugs. The information that the family of
the accused was impoverished; that the accused spent his
adolescence in Metro-Manila; that the accused was a neglected
child were all supplied by the kins of the accused who were not
presented as witnesses. There was no showing that Dr. Gauzon
took precautionary steps to validate the information. On the other
hand, Dr. Servando also conducted interview of the accused and
his accompanying relatives including the BJMP guard who
escorted him. In addition, Dr. Servando conducted a series of
written tests which are tailored to determine the mental capacity
of a person. The result of the written tests confirms the
observation of Dr. Servando in the interview that the accused is
evasive and manipulative. [26]
 Unlike in other jurisdictions, Philippine courts have
established a more stringent criterion for the acceptance of
insanity as an exempting circumstance. In our jurisdiction,
mere abnormality of the mental faculties is not enough;
there must be a complete deprivation of intelligence in
committing the act.
Every individual is presumed to have acted with
complete grasp of ones mental faculties. Appellants past
does not discredit the facts that (1) he did not act with
complete absence of the power to discern; (2) he was not
deprived of reason; and (3) he was not totally deprived of
his will.
As held in People vs. Madarang, [27]
An accused invoking the insanity defense pleads not guilty by
reason thereof. He admits committing the crime but claims that
he is not guilty because he was insane at the time of its
commission. Hence, the accused is tried on the issue of sanity
alone and if found to be sane, a judgment of conviction is
rendered without any trial on the issue of guilt as he had already
admitted committing the crime. x x x. [28]
Inasmuch as Belonio failed to present convincing
evidence to establish his alleged insanity at the time he
stabbed Tamayo, we are constrained to affirm his
conviction.
We must add that we have meticulously reviewed the
records of this case, especially the evidence of the
prosecution. We find no reason to modify, much less
reverse, the findings of the trial court that, indeed,
appellants guilt for murder has been proven beyond
reasonable doubt.
We now look into the propriety of the penalty imposed
by the trial court.
499
Under Art. 248 of the Revised Penal Code, as
amended by RA 7659, any person found guilty of murder
shall be punished by reclusion perpetua to death. The
same Code further instructs that when in the commission of
the crime there is present an aggravating circumstance
which is not offset by any mitigating circumstance, the
greater penalty shall be applied. [29]
A review of the records supports the conclusion of the
trial court on the presence of treachery, which qualified the
crime to murder. For treachery to be appreciated, two
elements must concur: (1) the means of execution
employed gave the person attacked no opportunity to
defend himself or retaliate; and (2) the means of execution
was deliberately or consciously adopted. [30]
In the present case, Jennifer Carampatana testified on
how the killing was executed, as follows:
Q. What did you do there?
A. While we were conversing at that bench, after a short while, or
five (5) minutes, Randy Belonio came and he asked to light his
cigarette because Ramy was smoking at that time. He was
allowed by Ramy to light his cigarette.
Q. Was there any conversation between Ramy Tamayo and
Randy Belonio aside from asking lighting of cigarette?
A. While asking to light the cigarette, Randy inquired from Ramy
why he was there, Ramy told him that he is attending the
wake of his grandmother. Further, Randy asked him where
he came from? And Ramy answered that he is from Hda.
Bubog.
Q. After that what did Randy Belonio do if he did anything?
A. He (sat) for a while, and a little while after that, he took a look
at Ramy. After some minutes, he went out.
Q. And after few minutes was there any incident happened?
A. After three (3) minutes Randy went back. He just walk
normally, and when he was near Ramy he stabbed Ramy
 hitting on the chest and while the weapon was still on the A. Yes, sir.
breast of Ramy I stood up and ran away.
COURT:
Q. From what direction did Randy came when he approach
you? Proceed.

A. He came from their house because their house is near our APP AGRAVIADOR:
house. Q. When Randy Belonio suddenly thrust the knife on the chest
Q. In relation to you, where is this house located? of Ramy Tamayo, did you see the reaction of Ramy
Tamayo?
A. Witness indicating that he came from her side, where the
house is situated. A. He was not able to move. After that, I want to ran to the
house.
Q. And which side did you sit, the side near the direction of the
house of Randy Belonio or far from the house of Belonio? APP AGRAVIADOR:

A. The other side. Q. When for the first time did you see the weapon used by
Randy Belonio in taking the life of Ramy Tamayo?
COURT:
A. When he thrusted that knife.
It was Ramy who was sitting near the house of Ramy?
COURT:
WITNESS:
Before or after he delivered the stabbing blow?
Yes, sir.
A. At the moment he delivered the stabbing blow, that was the
APP AGRAVIADOR: first time I saw that knife.
Q. And what was the position of Ramy Tamayo when he was APP AGRAVIADOR:
suddenly stab.
Q. When you saw Randy Belonio approaching Ramy Tamayo x
A. He was sitting in this manner. x x, you did not see the knife?
COURT INTERPRETER: A. Because he was wearing long sleeve to cover his hand.[31]
Witness illustrating by crossing her legs over the other legs and Appellants acts of leaving, then returning after a few
move slightly her body was in side way. minutes armed with a knife -- which he concealed while
APP AGRAVIADOR: approaching the victim and which he used in stabbing him -
Q. That means that Ramy Tamayo did not see Randy Belonio who - while the latter was sitting, unaware and not forewarned
was coming from the house? of any danger, manifest a deliberate employment of means
A. Yes, Maam. to ensure the killing without risk to himself arising from the
defense which the victim might make.
COURT:
Let me interrupt. He was facing you? Ramy was facing you
The aggravating circumstance of recidivism, which was
while you were facing the direction where the house of Randy alleged in the Information was also duly proven. A recidivist
Belonio, so that Ramy was facing on the other side? is one who at the time of his trial for one crime, shall have
WITNESS: been previously convicted by final judgment of another

500
crime embraced in the same title of this Code. The
records show that appellant was previously convicted by
[33]
final judgment of Homicide, which like Murder, falls under
the title of Crimes against Persons.
The award by the court a quo of P50,000 as civil
indemnity is in accordance with jurisprudence. The
amount of P25,000 as exemplary damages should also be
given because of the presence of the aggravating
circumstance of recidivism. However, the court erred in
awarding the amount of P940,716 as loss of earning
capacity. In accordance with the formula adopted by the
Court in Villa Rey Transit, Inc. vs. CA (31 SCRA 511
[1970]), and using the American Expectancy Table of
Mortality, the loss of Tamayos earning capacity is to be
[35]
computed as follows:
Net earning capacity = Life expectancy x (Gross Annual Income
Living
Expenses
) Three Justices of the Court maintain their position that
where: Life expectancy = 2/3 (80 the age of the deceased)
= 2/3 (80-24) x [(P200x365)-
P36,500]
=P1,362,545
The award for loss of earning capacity should therefore
be P1,362,545.
There being testimonial evidence in support of moral
damages, an award for it is proper. However, it should be
reduced to the more reasonable amount of P50,000
considering that it is not meant to enrich an injured party.
[32]
Actual damages for the hospital expenses in the
amount of P3,627.70 were duly supported by
receipts. However instead of awarding actual damages, we
grant temperate damages in accordance with People vs.
Andres, where the Court said:
[36]
[34]
[W]e declared in the case of People vs. Villanueva that:
when actual damages proven by receipts during the
trial amount to less than P25,000, as in this case, the
award of temperate damages for P25,000 is justified
in lieu of actual damages of a lesser
amount.Conversely, if the amount of actual damages
proven exceeds P25,000, then temperate damages
may no longer be awarded; actual damages based on
the receipts presented during trial should instead be
granted.
The victims heirs should, thus, be awarded temperate
damages in the amount of P25,000. [37]
R.A. No. 7659 is unconstitutional insofar as it prescribes
the death penalty. Nevertheless they submit to the ruling of
the majority that the law is constitutional and the death
penalty can be lawfully imposed in the case at bar.
WHEREFORE, the assailed Decision in Criminal Case
No. 00-20595 convicting the appellant of the crime of
murder and sentencing him to DEATH is AFFIRMED. The
award for loss of earning capacity
is INCREASED to P1,362,545; moral damages
is REDUCED to P50,000; actual damages is DELETED but
temperate damages of P25,000 and exemplary damages
of P25,000 are awarded.
501
 In accordance with Section 25 of R.A. 7659 amending died five days later as a result of her wound, and also the foetus which was
asphyxiated in the mother's womb.
Section 23 of the Revised Penal Code, let the records of
this case be forthwith forwarded, upon finality of this An information for parricide was filed against Potenciano Taneo, and upon
decision, to the Office of the President for possible exercise conviction he was sentenced by the trial court to reclusion perpetua with the
of the pardoning power. accessory penalties, to indemnity the heirs of the deceased in the sum of
P500 and to pay the costs. From this sentence, the defendant appealed.
Costs against appellant.
It appears from the evidence that the day before the commission of the
SO ORDERED. crime the defendant had a quarrel over a glass of "tuba" with Enrique
Collantes and Valentin Abadilla, who invited him to come down to fight, and
Vitug, Panganiban, Quisumbing, Ynares-Santiago, when he was about to go down, he was stopped by his wife and his mother.
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, On the day of the commission of the crime, it was noted that the defendant
Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, was sad and weak, and early in the afternoon he had a severe stomachache
which made it necessary for him to go to bed. It was then when he fell
JJ., concur. asleep. The defendant states that when he fell asleep, he dreamed that
Davide, Jr., C.J., and Puno, J., on official leave. Collantes was trying to stab him with a bolo while Abadilla held his feet, by
reason of which he got up; and as it seemed to him that his enemies were
inviting him to come down, he armed himself with a bolo and left the room.
Republic of the Philippines At the door, he met his wife who seemed to say to him that she was
SUPREME COURT wounded. Then he fancied seeing his wife really wounded and in
Manila desperation wounded himself. As his enemies seemed to multiply around
him, he attacked everybody that came his way.
EN BANC
The evidence shows that the defendant not only did not have any trouble
with his wife, but that he loved her dearly. Neither did he have any dispute
G.R. No. L-37673 March 31, 1933
with Tanner and Malinao, or have any motive for assaulting them.
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
Our conclusion is that the defendant acted while in a dream and his acts,
vs.
with which he is charged, were not voluntary in the sense of entailing
POTENCIANO TANEO, defendant-appellant.
criminal liability.
Carlos S. Tan for appellant.
In arriving at this conclusion, we are taking into consideration the fact that
Attorney-General Jaranilla for appellee.
the apparent lack of a motive for committing a criminal act does not
necessarily mean that there are none, but that simply they are not known to
AVANCEÑA, C.J.: us, for we cannot probe into depths of one's conscience where they may be
found, hidden away and inaccessible to our observation. We are also
Potenciano Tadeo live with his wife in his parent's house of the barrio of conscious of the fact that an extreme moral perversion may lead a man
Dolores, municipality of Ormoc, Leyte. On January 16, 1932, a fiesta was commit a crime without a real motive but just for the sake of committing it.
being celebrated in the said barrio and visitors were entertained in the But under the special circumstances of the case, in which the victim was the
house. Among them were Fred Tanner and Luis Malinao. Early that defendant's own wife whom he dearly loved, and taking into consideration
afternoon, Potenciano Taneo, went to sleep and while sleeping, he suddenly the fact that the defendant tried to attack also his father, in whose house
got up, left the room bolo in hand and, upon meeting his wife who tried to and under whose protection he lived, besides attacking Tanner and Malinao,
stop him, he wounded her in the abdomen. Potenciano Taneo attacked Fred his guests, whom he himself invited as may be inferred from the evidence
Tanner and Luis Malinao and tried to attack his father after which he presented, we find not only a lack of motives for the defendant to voluntarily
wounded himself. Potenciano's wife who was then seven months pregnant,
502
commit the acts complained of, but also motives for not committing said
acts.
Doctor Serafica, an expert witness in this case, is also of the same opinion.
The doctor stated that considering the circumstances of the case, the
defendant acted while in a dream, under the influence of an hallucination
and not in his right mind.
We have thus far regarded the case upon the supposition that the wound of
the deceased was direct result of the defendant's act performed in order to
inflict it. Nevertheless we may say further that the evidence does not clearly
show this to have been the case, but that it may have been caused
accidentally. Nobody saw how the wound was inflicted. The defendant did
not testify that he wounded his wife. He only seemed to have heard her say
that she was wounded. What the evidence shows is that the deceased, who
was in the sala, intercepted the defendant at the door of the room as he was
coming out. The defendant did not dream that he was assaulting his wife but
he was defending himself from his enemies. And so, believing that his wife
was really wounded, in desperation, he stabbed himself.
In view of all these considerations, and reserving the judgment appealed
from, the courts finds that the defendant is not criminally liable for the
offense with which he is charged, and it is ordered that he be confined in the
Government insane asylum, whence he shall not be released until the
director thereof finds that his liberty would no longer constitute a menace,
with costs de oficio. So ordered.
Street, Ostrand, Abad Santos, and Butte, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 46539 September 27, 1939
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VALENTIN DOQUEÑA, defendant-appellant.
Primicias, Abad, Mencias and Castillo for appellant.
Assistant Solicitor-General Concepcion and Assistant Attorney Paredes, Jr.,
for appellee.
503
DIAZ, J.:
The accused-appellant, who is a minor, was prosecuted for homicide in the
Court of First Instance of Pangasinan, for having killed Juan Ragojos by
stabbing him in the breast with a knife on November 19, 1938, in the
municipality of Sual, Pangasinan. The court, after trying the case, held that
the accused acted with discernment in committing the act imputed to him
and, proceeding in accordance with the provisions of article 80 of the
Revised Penal Code, as amended by Commonwealth Act No. 99, ordered
him to be sent to the Training School for Boys to remain therein until he
reaches the age of majority. From this order the accused interposed an
appeal alleging that the court erred in holding that he had acted with
discernment and in not having dismissal the case.
On the date of the crime, the appellant was exactly thirteen years, nine
months and five days old. The incident that gave rise to the aggression
committed by him on the deceased is narrated in the appealed order as
follows:
Between 1 and 2 o'clock in the afternoon of November 19, 1938, the
now deceased Juan Ragojos and one Epifanio Rarang were playing
volleyball in the yard of the intermediate school of the municipality of
Sual, Province of Pangasinan. The herein accused, who was also in
said yard, intervened and, catching the ball, tossed it at Juan
Ragojos, hitting him on the stomach. For this act of the accused,
Juan Ragojos chased him around the yard and, upon overtaking
him, slapped him on the nape. Said accused then turned against the
deceased assuming a threatening attitude, for which the reason said
deceased struck him on the mouth with his fist, returning
immediately to the place where Epifanio Rarang was in order to
continue playing with him. The accused, offended by what he
considered an abuse on the part of Juan Ragojos, who was taller
and more robust than he, looked around the yard for a stone with
which to attack the now deceased Juan Ragojos, but finding none,
he approached a cousin of his named Romualdo Cocal, to ask the
latter to lend him his knife. Epifanio Rarang, who had heard what the
accused had been asking his cousin, told the latter not to give the
accused his knife because he might attack Juan Ragojos with it. The
accused, however, succeeded in taking possession of the knife
which was in a pocket of his cousin's pants. Once in possession of
the knife, Valentin Doqueña approached Juan Ragojos and
challenged the latter to give him another blow with his fist, to which
the deceased answered that he did not want to do so because he
(Juan Ragojos) was bigger that the accused. Juan Ragojos, ignorant
of the intentions of the accused, continued playing and, while he was
thus unprepared and in the act of stopping the ball with his two
 hands, the accused stabbed him in the chest with the knife which he Wherefore, the appealed order is affirmed, with the costs to the appellant.
carried. So ordered.

The order also contains the following conclusions and findings of fact which Avanceña, C.J., Villa-Real, Imperial, Laurel, and Concepcion, JJ., concur.
we are not at liberty to alter, not being called upon or authorized to do so, in
view of the nature of the appeal before us, by section 138 of the
Administrative Code, as amended by Commonwealth Act No. 3:
FIRST DIVISION

Taking into account the fact that when the accused Valentin
Doqueña committed the crime in question, he was a 7th grade pupil [G.R. No. 129566. October 7, 1998]
in the intermediate school of the municipality of Sual, Pangasinan,
and as such pupil, he was one of the brightest in said school and
was a captain of a company of the cadet corps thereof, and during
the time he was studying therein he always obtained excellent
marks, this court is convinced that the accused, in committing the PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
crime, acted with discernment and was conscious of the nature and vs. NOEL NAVARRO, accused-appellant.
consequences of his act, and so also has this court observed at the
time said accused was testifying in his behalf during the trial of this
case. DECISION
PANGANIBAN, J.:
The proven facts, as stated by the lower court in the appealed order,
convinces us that the appeal taken from said order is absolutely unfounded, In rejecting this appeal, the Court reiterates the following doctri
because it is error to determine discernment by the means resorted to by
nes: (1) a retraction does not necessarily negate an earlier
the attorney for the defense, as discussed by him in his brief. He claims that
to determine whether or not a minor acted with discernment, we must take credible testimony; (2) the testimony of a single witness, if positive
into consideration not only the facts and circumstances which gave rise to and clear, is sufficient to sustain a judgment of conviction, even in
the act committed by the minor, but also his state of mind at the time the a charge for murder; (3) the rule on res gestae relates to the
crime was committed, the time he might have had at his disposal for the admissibility of evidence, not to its weight and sufficiency; (4)
purpose of meditating on the consequences of his act, and the degree of alleged violations of the rights against illegal arrest and seizure are
reasoning he could have had at that moment. It is clear that the attorney for deemed waived by the appellant's failure to assert them prior to
the defense mistakes the discernment referred to in article 12, subsection 3,
arraignment; (5) where the killing is qualified by treachery, which is
of the Revised Penal Code, for premeditation, or at least for lack of intention
which, as a mitigating circumstance, is included among other mitigating alleged in the information, the crime committed is murder; and (6)
circumstances in article 13 of said Code. The discernment that constitutes where the existence of the unlicensed firearm allegedly used in the
an exception to the exemption from criminal liability of a minor under fifteen killing has not been clearly established, the charge of illegal
years of age but over nine, who commits an act prohibited by law, is his possession of firearm cannot be considered an aggravating
mental capacity to understand the difference between right and wrong, and circumstance in murder.
such capacity may be known and should be determined by taking into
consideration all the facts and circumstances afforded by the records in
each case, the very appearance, the very attitude, the very comportment
and behaviour of said minor, not only before and during the commission of The Case
the act, but also after and even during the trial (U.S. vs. Maralit, 36 Phil.,
155). This was done by the trial court, and the conclusion arrived at by it is
correct. On January 6, 1994, two Informations, one for murder[1] and
the other for violation of Presidential Decree 1866,[2] were filed at
the Regional Trial Court of Alaminos, Pangasinan against Noel
504
Navarro. On January 19, 1994, Navarro, through Counsel Romeo
L. Gutierrez, filed two motions, one to remand the case to the
provincial prosecutor for preliminary investigation and the other to
suspend the proceedings before the court.[3] Judge Segundo B.
Paz granted the motions.[4] Thereafter, on March 3, 1994, filed
against the appellant was this amended Information for murder:[5]
"That on or about January 5, 1991, in the evening, near
Enok Theater at Poblacion, [M]unicipality of Alaminos,
[P]rovince of Pangasinan, New [sic] Republic of the
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, with
treachery and evident premeditation, did then and there,
wilfully, unlawfully and feloniously shoot FERDINAND
RABADON @ "BOYET" several times which caused his
instantaneous death as a consequence, to the damage and
prejudice of his heirs.
Contrary to Art. 248 of the Revised Penal Code." [6]
Affirmed, on the other hand, was this Information for violation
of PD 1866:
"That on or about January 5, 1991, in the [M]unicipality of
Alaminos, [P]rovince of Pangasinan and within the
jurisdiction of this Honorable Court, the above-named
accused did then and there wilfully, unlawfully and
feloniously have in his possession, control and custody one
short firearm without first securing the necessary license
and permit to possess the same and said firearm was used
in the killing of Ferdinand Rabadon.
Contrary to P.D. 1866." [7]
On April 5, 1994, appellant, assisted by his aforementioned
counsel, pleaded not guilty to the charges against him. [8] He then
filed a petition for bail. A protracted full-blown hearing on the
matter then ensued, during which the prosecution and the defense
505
presented their respective witnesses and documentary evidence.
The petition was denied. The trial court adopted the proceedings
during said hearing and thereafter, rendered the assailed 22-page
Decision,[9] the dispositive portion of which reads:
"WHEREFORE, in consideration of the foregoing premises,
judgment is hereby rendered declaring the accused
GUILTY beyond reasonable doubt of the crime of [m]urder
as described in the Information in Criminal Case No. 2762-
A and, therefore, he is ordered to suffer the single and
indivisible penalty of reclusion perpetua. The said accused
should indemnify the heirs of the deceased in the sum
of P50,000.00 as provided for by law plus another sum
of P50,000.00 for actual damages that the mother of the
victim has spent for the funeral services and wake.
"That the illegal possession of firearm subject of the
Information in Criminal Case No. 2763-A is considered
merely as an aggravating circumstance in the commission
of the crime of murder, considering that the alleged firearm
used was not recovered by the authorities and never
presented in court.
xxxxxxxxx
"SO ORDERED." [10]
Hence, this appeal.[11]
The Facts According to the Prosecution
The solicitor general narrated the People's version of the facts
as follows:
"On January 5, 1991, around 9:00 in the evening, Jose
Rabago went to Enoc Theater located at Poblacion,
Alaminos, Pangasinan to view some stationary pictures
exhibited outside the theater (p. 11, TSN, May 20, 1994).
When he was about to go home on board his motorcycle,
he was invited by Ferdinand Rabadon, who was drinking
beer inside Adela's Restaurant, to join him. Rabago obliged
(p.12, id.).
"Later, Rabadon borrowed Rabago's motorcycle which he
used in going to the bus terminal to check if his wife had
already arrived from Zamboanga (p. 13, id.) Upon his
return, Rabadon invited Rabago to Five Doors Disco but
the latter opted to go home (p. 14, id.). Rabadon, who was
still on the motorcycle holding its handle bars, offered to
drive Rabago home. (id.).
"When Rabago was about to mount the motorcycle, he was
pushed by one Ming Basila, causing him to fall on his
buttocks, after which Basila shot Rabadon twice at the
back. While Rabadon was already lying down with his leg
pinned by the motorcycle, appellant shot him three (3)
times (pp. 14-15, id.).
"Rabago ran away, but after noticing that appellant and
Basila [had] left the scene, he returned and saw Rabadon
dying and gasping for breath (pp. 17-18, id.).
"Rabago saw Virgilio "Itlog" Rabadon, a policeman, to
whom he reported Rabadon's killing (pp. 19-20, id.). On
January 6, 1991, Rabago was investigated by policeman
Rolando Rabadon but he said that he did not see anything
(p. 3, TSN, June 13, 1994).
"During the hearing of the case, Rabago explained that he
did not divulge the identities of the assailants for fear of his
life (p. 37, TSN, May 20, 1994). He claimed that some
policemen in Alaminos, Pangasinan [were] members of the
506
Aguila Gang which kill[ed] people (pp. 41-42, TSN, June
13, 1994). The gang [was] allegedly led by one Ramon
Navarro, appellant's brother.
"The National Bureau of Investigation (NBI) interrogated
Rabago on January 3, 1994, at which time, Rabago named
appellant and Ming Basila as the authors of Rabadon's
killing (p. 20, TSN, June 13, 1994).
"Dr. Francisco Viray, who autopsied Rabadon's cadaver,
found five (5) gunshot wounds and concluded that the
immediate cause of death [was] "cardio-respiratory arrest;
antecedent cause: brain injury and underlying cause:
gunshot wounds" (p. 11, TSN, August 8, 1994)." [12]
According to the Defense
Appellant Noel Navarro denied any participation in the killing of
Rabadon in his 16-page Brief,[13] which we quote:
"On January 5, 1991, in the evening, one Ferdinand
Rabadon was shot to death near the Enoc Theater at
Poblacion, Alaminos, Pangasinan. Almost immediately
after the shooting incident, Jose Rabago reported the
incident to one policeman, Virgilio "Itlog" Rabadon, was
inside a restaurant near the Victory Liner Terminal that his
(Jose Rabago) companion was shot without him telling the
policeman Virgilio "Itlog" Rabadon who shot his
companion. Policeman Rabadon responded by going to the
place pointed to by Jose Rabago, but the victim was no
longer at the place of the incident as he was brought to the
hospital. Later, Jose Rabago was investigated by
policeman Rolando "Lando" Rabadon regarding the
shooting incident, but Jose Rabago, when asked, told
policeman Rolando Lando Rabadon that he did not see
[14]
anything. Considering the negative result of the police
investigation, no case was filed by the police against
anybody for the shooting to death of Ferdinand Rabadon.
"Three (3) years later, on January 5, 1994, at about 8:00 o'
clock in the evening, a composite team of the National
Bureau of Investigation led by Atty. Teofilo Gallang served
a search warrant and warrant of arrest to one Ramon
Navarro, brother of accused-appellant in his residence and
failing to find Ramon Navarro, the composite team of the
NBI went to the house where accused-appellant was
staying where they saw him (Noel Navarro). Accused-
appellant was searched, but [nothing was found] in his
body. Accused-appellant was arrested right then and there
without any warrant of arrest shown to him by the NBI. In
fact, it was admitted that the NBI composite team at the
time [had] no warrant of arrest against accused-appellant.
"The NBI composite team boarded accused-appellant in a
white van and was brought to the house of now
Congressman Hernani Braganza in Alaminos, Pangasinan.
Later, the NBI composite team went to Lucap, Alaminos,
Pangasinan to fetch Fiscal Rabina and from there, they all
proceeded to the police station of Alaminos, Pangasinan.
Accused-appellant inquired from Fiscal Rabina if there
[was] a warrant for his arrest and Fiscal Rabina simply
said, sorry, my son, I cannot do anything, okay?
"The following day, January 6, 1994, Prosecutor Rabina
filed the [I]nformation charging accused-appellant of
[m]urder, x x x for allegedly killing Ferdinand Rabadon on
January 5, 1991, three (3) years earlier, without conducting
a preliminary investigation. Also filed [was] an [I]nformation
for [violation] of P.D. 1866 x x x."
[15]
507
The defense presented three witnesses: Jose Rabago, who
recanted his previous testimony; NBI Director Teodoro Galang,
who testified as to the circumstances surrounding the arrest of the
appellant without warrant; and Noel Navarro, the appellant himself.
The Ruling of the Trial Court
The trial court found the appellant guilty of murder, based on
Jose Rabago's testimony as a prosecution witness, which it found
to be positive, credible and sufficient to support a judgment of
conviction. It ratiocinated as follows:
"Jose Rabago was positive about the identity of the killers
of the victim. He was just one (1) meter away from Ming
Basila and he was facing Ming Basila when he fell down.
He saw the gun firing when it was Noel Navarro's turn to
[shoot] the victim, and he [had] already taken three steps to
[run] away towards the Philippine Rabbit Bus Station, but
he claim[ed] that he looked back.
"There is no doubt from his testimony that Jose Rabago
recognized Noel Navarro. He knew Noel Navarro when
they were both students of the Royal Carpenter
Academy. [In spite] of the hour of the night, he recognized
Noel Navarro because there were three lights x x x [h]is
distance [was] just three steps away from Noel Navarro.
Even assuming that he [had] his back turned toward the
accused, because he scampered away, Jose Rabago
testified that upon reaching the bus station, he looked at
the two who lingered at the scene of the shooting. He also
saw them [leave] and disappear at the corner." [16]
Rabago's recantation of his testimony as a prosecution
witness was disregarded by the court a quo in this wise:
"x x x the Court cannot find any evidence or any indications
that Jose Rabago [had] a sinister scheme to prevaricate
and therefore this Court must respect as trustworthy, and
with full faith and credence, his testimony as eyewitness for
the prosecution." [17]
Citing jurisprudence, the lower court further declared that
"mere retraction by [the] prosecution witness does not necessarily
deshape the original testimony, if credible," and that " [courts] look
with disfavor upon retractions of testimonies previously given in
court. The rationale for the rule is obvious; the retraction can easily
be secured from witnesses usually through intimidation or
monetary consideration."[18]
In all, the trial court convicted the appellant of murder, after
finding that the killing was qualified by treachery and merely
aggravated by illegal possession of firearms.[19]
The Assigned Errors
The appellant contends that the lower court committed the
following errors:
"1. In not considering the report of Prosecution Witness
Jose Rabago to policeman Virgilio "Itlog" Rabadon that his
companion was killed, but did not tell policeman Virgilio
"Itlog" Rabadon that accused-appellant and one Ming
Basila killed the deceased, as part of the res gestae;
"2. In not considering the result of the investigation
conducted by Policeman Rolando Lando Rabadon when
Witness Jose Rabago was asked if he saw the assailant
and did not mention the name of the accused-appellant
and one Ming Basila, but instead, answered he did not see
anything, as part of the res gestae;
508
"3. In giving credence to the testimony of witness Jose
Rabago despite the fact that he narrated three (3) versions
of the incident, in his report to the police authorities and the
investigation conducted by the police authorities later
immediately after the incident, and in his testimony as a
prosecution witness and as a defense witness;
"4. In finding accused-appellant guilty beyond reasonable
doubt of the crime of murder despite serious and material
inconsistencies in the testimony of Jose Rabago, the lone
witness of the prosecution who [claimed] to have
[witnessed] the killing of Ferdinand Rabadon." [20]
In sum, the defense disputes the trial court's ruling identifying
appellant as one of the authors of the crime. To resolve the appeal
fully, the following issues will be discussed: (1) credibility and
sufficiency of the prosecution evidence, (2) res gestae, (3) the
defenses of denial and illegality of arrest and (4) the
characterization of the killing. In addition, the Court will discuss the
validity of the lower court's ruling that illegal possession of firearms
should be appreciated as an aggravating circumstance in the
killing.
The Court's Ruling
The appeal is devoid of merit.
First Issue: Credibility and Sufficiency of Prosecution
Evidence
In the present controversy, the judge who penned the assailed
Decision did not hear all the evidence presented by the parties. In
fact, three judges handled the case: Judge Segundo B. Paz, in
whose court the Informations were filed and the evidence of
the parties was heard until August 17, 1994; Judge Leo M.
Rapatalo, who took over on December 7, 1994 and resolved the
petition for bail; and Judge Jules A. Mejia, who presided over the xxxxxxxxx
case from February 26, 1997 onwards. Hence, the rule granting
A Aguila gang, sir.
finality to the factual findings of trial courts is inapplicable to this
case. Accordingly, the Court meticulously pored over the records, xxxxxxxxx
especially the transcript of stenographic notes, but after a careful Q What is the Aguila gang?
study and deliberation, the Court finds no reason to disturb the
factual findings of Judge Mejia. A It is killing people, sir.

Appellant contends that the testimony of Prosecution Witness x x x x x x x x x"[23]

Jose Rabago was filled with serious and material inconsistencies,
allegedly because he gave three versions of the incident. First, he
did not mention appellant's name when he reported the incident to
SPO2 Virgilio Rabadon; and when asked by Patrolman Rolando
Rabadon, he said that he did not see anything. Second, he
identified the appellant as one of Rabadon's killers only when he
was questioned by agents of the National Bureau of Investigation
three years after the incident. As a prosecution witness, he
maintained this assertion. Third, when presented as a defense
witness, he changed his testimony and swore that it was not the
appellant who had shot Rabadon, but a "short and stout man."[21]
The argument does not persuade. True, Rabago did not
mention the name of the appellant when he reported the killing to
both SPO2 Virgilio Rabadon and Patrolman Rolando
Rabadon;[22]however, he explained that he was apprehensive about
talking to the police, as he suspected that some of them were
members of the dreaded Aguila Gang, viz.:
"x x x x x x x x x
Q Mr. Witness, when you were asked by policeman Lando Rabadon
about what you learned of the shooting to death of Boyet
Rabadon, you told him you did not see anything, why did you tell
policeman Lando Rabadon that you did not see anything?
A I was afraid, sir.
Q And why were you afraid?
A I did not have confidence [in] the police.
Q Didn't you have confidence [in] the police?
A Because some policemen are members of Aguila.
He further testified to the pervasive climate of fear engulfing
his town:
"x x x x x x x x x
Q In your affidavit, Mr. Witness, you mentioned that there were other
witnesses [to] the killing. [A]ccording to you, on January 5, 1994,
there were other witnesses x x x, and your answer was "yes", but
nobody there talked anymore due to fear for their lives.
A Yes, sir.
xxxxxxxxx
Q And what about your statement that these other witnesses fear for
their lives, was that not your statement in your sworn statement?
A Yes, sir, they are afraid.
Q And what about you, are you not afraid of the Navarros?
A I am afraid, sir.
Q Are you saying, Mr. Witness, that a lot of people here in Alaminos
are afraid of the Navarros?
A Yes, sir.
x x x x x x x x x"[24]
With regard to Rabago's recantation of his previous testimony
as a prosecution witness, narrating the killing of Rabadon and
identifying the appellant as one of the malefactors, suffice it to say
that this earlier testimony was clear, candid and consistent, as
shown hereunder:
"x x x x x x x x x

Q And what is Aguila? Q After Ming Basila shot Boyet Rabadon, what happened next?

509
 A Noel Navarro followed. In contrast, Rabago's testimony as a defense witness was
Q What did Noel Navarro do after Ming Basila shot Rabadon from bereft of particulars that should have indicated, at the very least,
behind? that his testimony as a prosecution witness was false. His
testimony as a defense witness, albeit brief, did point out that it
A Boyet Rabadon was already lying down and he [shot] him. was not the appellant but a "stout and short" man, along with Ming
xxxxxxxxx Basila, who shot the victim. He claimed that he was testifying
anew because he was bothered by his conscience; however, he
Q You said that Noel Navarro shot Ferdinand Rabadon, how many did not state any reason why he had previously identified the
times did Noel Navarro shoot Boyet Rabadon? appellant as one of Rabadon's killers. Also suspect was the way
A Thrice, sir. he parried questions regarding his appearance as a defense
witness. Worth repeating is the trial court's elucidation on the
xxxxxxxxx
matter:
Q Mr. Witness, considering that it was about nine o' clock in the
evening when Ming Basila and Noel Navarro shot Boyet "The Court wonders why of all things, Rabago will apply for
Rabadon, how were you able to see Basila and Noel Navarro
witness protection program of the government, if it [was]
shoot Boyet Rabadon?
not true that he had witnessed the occurrence of the events
xxxxxxxxx as he related them when he was presented as [a]
A There was a light, sir. prosecution witness.
xxxxxxxxx
"And later on, after giving his version of the incident that
Q How many lights were there? happened as a witness for the prosecution, why of all
A About three. things, will he come to know the date of the trial or hearing
xxxxxxxxx
for [the] defense when according to him, not even the
accused, not even the lawyer of the accused, not even the
Q How far were you from Boyet Rabadon when Ming Basila and Noel subpoena had reached him, and yet, surprisingly, he was
Navarro shot him?
present on June 16, 1995 to given again his testimony in
A About three steps, sir. favor of the accused.
x x x x x x x x x"[25]
xxx xxx xxx
It must be stressed also that Rabago's testimony was
compatible with the findings of Dr. Francisco E. Viray,[26] the "His only reason why he [had] to testify for the defense
medicolegal officer who autopsied the victim's body. Rabago said
[was] that his conscience bothered him, but this Court
that Rabadon had been shot five times, once in the nape and four
times in other parts of his body.[27] Such details of his testimony as cannot buy that kind of explanation and believe it." [28]

a prosecution witness, aside from the fact that no ill motive or bias
was ascribed to him by the appellant, lends earmarks of truth to
said testimony.
Because the prosecution was able to substantiate its charge of
murder against the appellant through the detailed, clear and
consistent testimony of Rabago as a prosecution witness (pointing
to the appellant as one of the malefactors), the defense should

510
have emphatically and clearly established that such testimony was
false and ill-motivated. Appellant failed to do this.
The Court has held in a number of cases that a recantation of
a testimony is exceedingly unreliable, for there is always the
probability that such recantation may later on be itself
repudiated.[29]Courts look with disfavor upon retractions, because
they can easily be obtained from witnesses through intimidation or
for monetary consideration.[30] A retraction does not necessarily
negate an earlier declaration.[31] Where a witness who testified for
the prosecution subsequently testifies for the defense by retracting
his previous testimony, as in the present case, the test to decide
which testimony to believe is a comparison coupled with the
application of the general rules of evidence.[32]
In all, we agree with the court a quo in upholding the detailed,
clear and straightforward testimony of Jose Rabago as a
prosecution witness and in debunking his brief and indecisive
recantation of such testimony.
It is a legal truism that in criminal cases, the guilt of the
accused must be proven beyond reasonable doubt. To sustain
conviction, the prosecution must stand or fall on its own evidence;
it cannot draw strength from the weakness of that of the defense.
In the case at bar, the prosecution was able to prove the guilt
of Appellant Noel Navarro with moral certainty. Indeed, the Court
has held that the testimony of a single witness, if positive and
credible, is sufficient to sustain a judgment of conviction, even in a
charge for murder.[33]
Second Issue: Res Gestae
The appellant contends that, in considering the statements
which Rabago gave to both SPO2 Virgilio Rabadon and Patrolman
Rolando Rabadon, the trial court erred in concluding that such
statements were not part of res gestae.[34]
At the outset, it must be stated that res gestae pertains to the
admissibility of evidence, and not to its weight and sufficiency,[35] as
the Office of the Solicitor General correctly pointed out. The
511
admissibility of evidence depends on its relevance and
competence, while the weight of evidence pertains to evidence
already admitted and its tendency to convince and persuade.[36]
Res gestae is defined as follows:
"Statements made by a person while a startling
occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of the res
gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res
gestae." [37]
Rabago's statement to SPO2 Rabadon that someone had
killed his companion can be considered part of the res gestae, and
is thus admissible in evidence as an exception to the hearsay rule.
It was a spontaneous statement that was made right after a
startling occurrence and that refers to such occurrence. However,
the same cannot be said of his statement to Patrolman Rabadon,
as it lacked the requisite spontaneity, having been given in answer
to questions propounded in an investigation, a day after the
incident in question.
The appellant seems to imply that when Rabago reported the
incident to SPO2 Rabadon, Rabago's silence regarding the identity
of the killers created doubt as to the appellant's culpability for such
killing and, thus, should have been likewise considered by the
lower court in appellant's favor as part of the res gestae.[38] This
proposition deserves scant consideration. Such omission cannot
be taken to mean that appellant was not the culprit. The witness
was simply silent as to the identity of the assailant. Such omission,
as has been discussed, can be attributed to Rabago's fear of the
Navarros.
Witnesses' delayed reporting of what they know about a crime
does not render their testimonies false or incredible, for the delay
may be explained by the natural reticence of most people and their
abhorrence to get involved in a criminal case. But more than this,
there is always the inherent fear of reprisal, which is quite
understandable, especially if the accused is a man of power and
influence in the community.[39] In People v. Vias,[40] it was held that
"[t]he natural reluctance of a witness to get involved in a criminal
case, as well as to give information to the authorities is a matter of
judicial notice."
Third Issue: Denial and Illegal Arrest
While the appellant denied that he killed Ferdinand
Rabadon,[41] he did not offer any evidence to prove his
assertion; instead, his testimony focused on the
circumstances surrounding his alleged illegal arrest and
subsequent detention.
Contrary to the appellant's assertion that he was denied due
process by virtue of his alleged illegal arrest, such claim is negated
by his voluntary submission to the jurisdiction of the trial court, as
manifested by the voluntary and counsel-assisted plea he entered
during arraignment and by his active participation in the trial
thereafter.[42]
Faced with the detailed, clear and consistent testimony of Jose
Rabago, against whom no ill motive was imputed, Appellant
Navarro, whom the former pointed to as one of the killers of
Ferdinand Rabadon, cannot escape conviction merely by issuing
an unsubstantiated denial and resorting to constitutional
guarantees which he has already voluntarily waived.
Fourth Issue: The Crime
The crime committed was murder. As alleged in the
Information, the trial court correctly concluded that the killing of
Ferdinand Rabadon was qualified by treachery.
The essence of treachery is the sudden and unexpected
attack, without the slightest provocation on the part of the person
attacked.[43] Treachery exists when any of the crimes against
persons is committed with the employment of means,
methods or forms that tend directly and especially to insure
512
its execution, such that the offender faces no risk that may
arise from the defense which the offended party might
make.[44] In the present case, not only was the victim caught off
guard by the unexpected attack of the appellant and Ming Basila,
but the testimony of Jose Rabago likewise indubitably established
that the appellant shot the victim when the victim was already lying
prostrate and defenseless.[45]
Illegal Possession of Firearms
While we affirm the trial court's conviction of the appellant for
murder, we do not agree with its disquisition finding the charge of
illegal possession of firearms to have aggravated the killing.
To prove illegal possession of firearms, the prosecution must
establish two things: first, the existence of the subject firearm;
second, the fact that the accused, who owned or possessed the
firearm, did not have the corresponding license or permit to carry
the same outside his residence.[46]
In the case at bar, the Information alleged that on January 5,
1991, the appellant had in his possession an unlicensed firearm
which he used in killing Ferdinand Rabadon. This firearm was
allegedly recovered on January 5, 1994, when appellant was
arrested. However, said firearm was not presented in court or
offered as evidence against the appellant. Although Rabago
testified that he saw the appellant with a "short" firearm when the
latter shot Rabadon on January 5, 1991, no other proof was
presented to show that such gun, allegedly used on January 5,
1991, was the same one recovered on January 5, 1994. The
prosecution was not able to establish sufficiently the existence of
the subject firearm, and this fact was not offset by SPO1 Edmund
Garcia of the PNP Firearms and Explosives Unit, who testified that
appellant was not a licensed firearm holder in Pangasinan. Since
the charge of illegal possession of firearms was not proven, the
same could not be considered to have aggravated the killing of
Ferdinand Rabadon.
The court a quo would have been correct in considering illegal
possession of a firearm an aggravating circumstance, if such
possession had been established beyond reasonable doubt. This
is in line with RA 8294 (amending PD 1866), which regards the
use of an unlicensed firearm simply as an aggravating
circumstance in murder or homicide.[47]
In any case, since the killing was qualified by treachery, the
crime committed was murder. Whether with or without this alleged
generic aggravating circumstance, the penalty, reclusion perpetua,
would still be the same, because the killing was committed in
January 1991, when the imposition of the capital penalty was still
proscribed by the Constitution, and RA 7659 had not yet been
enacted.
Damages
While we affirm the award of P50,000 as indemnity for the
death of Ferdinand Rabadon, we have found no evidence in the
records that can support the lower court's additional award
of P50,000 as actual damages. To justify a grant of actual
damages, it is necessary to show the amount of actual loss with
the best evidence obtainable.[48] In the present case, while Ofelia
Rabadon testified that P25,000 was spent for the wake and burial
of her son, she did not present receipts or any other documents to
substantiate such claim.
WHEREFORE, the appeal is hereby DENIED. The assailed
Decision is AFFIRMED, but the award of actual damages
is DELETED. Costs against the appellant.
SO ORDERED.
Davide, Jr., (Chairman), Bellosillo, Vitug, and Quisumbing,
JJ., concur
SECOND DIVISION
[G.R. No. 162052. January 13, 2005]
513
ALVIN JOSE, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision[1] of
the Court of Appeals (CA) in CA-G.R. CR No. 22289 affirming with
modification the Decision[2] of the Regional Trial Court of Calamba,
Laguna, Branch 36, convicting the accused therein of violation of
Section 21(b), Article IV in relation to Section 29, Article IV of
Republic Act No. 6425, as amended.
The records show that Alvin Jose and Sonny Zarraga were
charged with the said crime in an Information, the accusatory
portion of which reads:
That on or about November 14, 1995, in the municipality of
Calamba, Province of Laguna, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, not being
licensed or authorized by law, did then and there willfully,
unlawfully and feloniously sell and deliver to other person
METHAMPHETAMINE HYDROCHLORIDE (or shabu)
weighing 98.40 grams, a regulated drug, and in violation of the
aforestated law.
CONTRARY TO LAW.[3]
The accused, assisted by counsel, pleaded not guilty to the
charge.
As culled by the trial court, the evidence of the prosecution
established the following:
[O]n November 14, 1995, P/Supt. Joseph R. Castro of the Fourth
Regional Narcotics Unit received an information from an
unnamed informant. Said unnamed informant was introduced to
him by former Narcom P/Senior Inspector Recomono. The
information was that a big time group of drug pushers from
Greenhills will deliver 100 grams of shabu at Chowking
Restaurant located at Brgy. Real, Calamba, Laguna.
Acting on such report, SPO1 Bonifacio Guevarra was assigned to
act as the poseur-buyer. SPO2 William Manglo and SPO2
Wilfredo Luna were the other members of the team. SPO1
Guevarra was provided with marked money consisting of
a P1,000.00 bill on top of a bundle of make-believe money bills
supposedly amounting to P100,000.00. P/Supt. Joseph R. Castro,
SPO2 William Manglo and Wilfredo Luna went to the place on a
Mitsubishi Lancer while SPO1 Guevarra and the informant
boarded an L-300 van. They arrived at the Chowking Restaurant
at about 11:00 in the morning. They positioned their cars at the
parking area where they had a commanding view of people going
in and out (TSN, October 3, 1996, pp. 2-8 and TSN, July 11,
1996, pp. 4-7).
It was about 4 oclock in the afternoon when a Toyota Corolla
with Plate No. UBV-389 arrived. Sonny Zarraga was the driver
with Alvin Jose. The unnamed informant approached and talked
to Sonny Zarraga. Then, the informant called SPO1 Bonifacio
Guevarra and informed the latter that Sonny Zarraga had with
him 100 grams of shabu. SPO1 Bonifacio Guevarra offered to
buy the shabu. Sonny Zarraga asked SPO1 Bonifacio Guevarra if
he had the money to buy 100 grams of shabu. Guevarra
responded in the affirmative. He showed the aforecited bundle of
money bills. Sonny Zarraga then asked Alvin Jose to bring out
the shabu and handover (sic) to Bonifacio Guevarra. SPO1
Bonifacio Guevarra, in turn, handed the bundle of money bills.
Guevarra scratched his head, the pre-arranged signal to signify
that the transaction was consummated (TSN, July 30, 1996, pp.
3-8). Immediately thereafter, William Manglo and Wilfredo Luna
approached and introduced themselves as Narcom Operatives.
They arrested Sonny Zarraga and Alvin Jose. The buy-bust
514
bundle of money bills and the shabu were recovered. The two
were brought to Camp Vicente Lim for investigation. Edgar
Groyon conducted the investigation. The shabu was brought to
the PNP Crime Laboratory for examination (TSN, July 30, 1996,
pp. 9-10 and TSN, October 3, 1996, pp. 9-13). P/Senior Inspector
Mary Jean Geronimo examined the shabu. She reported and
testified that the specimen, indeed, was a second or low grade
methamphetamine hydrochloride (TSN, July 30, 1996, pp. 31-
36).[4]
On the other hand, the accused therein were able to establish
the following facts:
Sonny Zarraga and Alvin Jose claimed that, on November 13,
1995, they were at SM Mega Mall (sic), Mandaluyong, Metro
Manila, to change money. Suddenly, a person with a hand bag
appeared and ordered them to handcuff themselves. They were
later able to identify three of these people as Police Supt. Joseph
Roxas Castro, SPO3 Noel Seno and a certain Corpuz. They were
all in civilian clothes.
They proceeded to where Sonny Zarragas car was parked. Sonny
Zarraga was forced to board another car while another person
drove Sonny Zarragas car with Alvin Jose as passenger. They
drove towards Greenhills. They were eventually blindfolded. On
the way to Greenhills, one of the men opened the gloves
compartment of Sonny Zarragas car. One of the men saw a
substance inside the said compartment. He tasted it. Said person
asked Sonny Zarraga if he could come up with P1.5 Million
peso (sic). Col. Castro even showed the picture of Sonny
Zarragas mother-in-law who was supposed to be a rich drug
pusher.
They ended up inside a room with a lavatory. While inside the
said room, Sonny Zarragas cellular phone rung. It was a call from
Sonny Zarragas wife. Col. Castro talked to Pinky Zarraga and
asked her if she could pay P1.5 Million as ransom for the release Atty. Christopher R. Serrano, Branch Clerk of Court, is hereby
of Sonny Zarraga. Sonny Zarraga instead offered to withdraw ordered to deliver and surrender the confiscated
money from the bank in the amount of P75,000.00. The Methamphetamine Hydrochloride to the Dangerous Drugs Board.
agreement was that in the bank, Pinky Zarraga would withdraw
the money and deliver it to Col. Castro in exchange for Sonny SO ORDERED.[6]
Zarragas release. The agreement did not materialize. Col. Castro
and Pinky Zarraga met inside the bank but Pinky Zarraga refused On appeal to the CA, the accused-appellants averred that the
to withdraw the money as Sonny Zarraga was nowhere to be trial court erred as follows:
seen. There was a commotion inside the bank which prompted I
the bank manager to call the police.
THE TRIAL COURT GRAVELY ERRED IN GIVING
Col. Castro left the bank in a hurry, passed by for Alvin Jose who FULL CREDENCE TO THE EVIDENCE PRESENTED
was left at the room and brought them to Camp Vicente Lim. BY THE PROSECUTION.
There, they were investigated.
II
The defense claimed that SPO3 Noel Seno got Sonny Zarragas
jewelry, P85,000.00 in cash and Sonny Zarragas car spare tire, THE TRIAL COURT GRAVELY ERRED IN NOT
jack and accessories. Noel Seno was even able to withdraw CONSIDERING THAT THE MERE PRESENTATION
the P2,000.00 using Sonny Zarragas ATM card.[5] OF THE SHABU IN COURT IS NOT SUFFICIENT TO
FIND, WITH ABSOLUTE CERTAINTY, THAT THE
On June 10, 1998, the trial court rendered judgment convicting APPELLANTS COMMITTED THE CRIME OF
both accused of the crime charged and sentencing each of them to SELLING PROHIBITED DRUGS, ESPECIALLY
an indeterminate penalty. The fallo of the decision reads: WHEN THE IDENTITY OF THE DRUG WAS NOT
PARTICULARLY SET OUT IN THE TESTIMONY
WHEREFORE, this Court finds both the accused Sonny Zarraga OF THE PROSECUTION WITNESSES.
and Alvin Jose guilty beyond reasonable doubt, for violation of
R.A. 6425, as amended, and is hereby sentenced to suffer the III
penalty of imprisonment of, after applying the Indeterminate
Sentence Law, six (6) years and one (1) day to ten (10) years. EVEN GRANTING THAT THE TRIAL COURT
CORRECTLY FOUND THE APPELLANTS GUILTY
Both accused are hereby ordered to pay the fine of P2 million OF THE CRIME CHARGED AGAINST THEM:
each and to pay the cost of suit.
(a) THE TRIAL COURT DID NOT IMPOSE THE
In the service of sentence, the preventive imprisonment PROPER PENALTY AGAINST THEM.
undergone both by the accused shall be credited in their favor.
(b) EACH OF THE APPELLANTS CANNOT BE
MADE TO PAY A FINE IN THE AMOUNT
515
 OF P2 MILLION PESOS (SIC) AND THE
COST OF THE SUIT.[7]
The CA rendered judgment affirming the decision appealed
from with modification. The appellate court reduced the penalty
imposed on appellant Alvin Jose, on its finding that he was only
thirteen (13) years old when he committed the crime; hence, he
was entitled to the privileged mitigating circumstance of minority
and to a reduction of the penalty by two degrees. The appellant
filed a motion for reconsideration, alleging that since the
Information failed to allege that he acted with discernment when
the crime was committed and that the prosecution failed to prove
the same, he should be acquitted. The appellate court denied the
motion.
Appellant Jose, now the petitioner, filed his petition for review
on certiorari, alleging that
THE COURT OF APPEALS GRAVELY ERRED IN NOT
ACQUITTING PETITIONER DESPITE (1) THE FAILURE OF
THE PROSECUTION TO PROVE BEYOND REASONABLE
DOUBT THAT PETITIONER, WHO WAS ONLY 13 YEARS
OLD WHEN THE CRIME WAS ALLEGEDLY COMMITTED
BY HIM IN CONSPIRACY WITH CO-ACCUSED SONNY
ZARRAGA, ACTED WITH DISCERNMENT, AND (2) THE
ABSENCE OF A DECLARATION BY THE TRIAL COURT
THAT PETITIONER SO ACTED WITH DISCERNMENT,
PURSUANT TO THE APPLICABLE PROVISIONS OF THE
REVISED PENAL CODE AND THE ESTABLISHED
JURISPRUDENCE.[8]
The petitioner asserts that, under paragraph 3, Article 12 of
the Revised Penal Code, a minor over nine (9) and under fifteen
(15) years of age at the time of the commission of the crime is
exempt from criminal liability unless he acted with discernment, in
which case he shall be proceeded against in accordance with
Article 192 of Presidential Decree (P.D.) No. 603, as amended by
P.D. No. 1179, as provided for in Article 68 of the Revised Penal
Code. He avers that the prosecution was burdened to allege in the
516
Information and prove beyond reasonable doubt that he acted with
discernment, but that the prosecution failed to do so. The
petitioner insists that the court is mandated to make a finding that
he acted with discernment under paragraph 1, Article 68 of the
Revised Penal Code and since the CA made no such finding, he is
entitled to an acquittal.
For its part, the Office of the Solicitor General (OSG) asserts
that the allegation in the Information that the petitioner and his co-
accused conspired and confederated to sell the shabu subject of
the Information sufficiently avers that the petitioner acted with
discernment; hence, there was no need for the public prosecutor
to allege specifically in the Information that the petitioner so acted.
It contends that it is not necessary for the trial and appellate courts
to make an express finding that the petitioner acted with
discernment. It is enough that the very acts of the petitioner show
that he acted knowingly and was sufficiently possessed with
judgment to know that the acts he committed were wrong.
The petition is meritorious.
Under Article 12(3) of the Revised Penal Code, a minor over
nine years of age and under fifteen is exempt from criminal liability
if charged with a felony. The law applies even if such minor is
charged with a crime defined and penalized by a special penal
law. In such case, it is the burden of the minor to prove his age in
order for him to be exempt from criminal liability. The reason for
the exemption is that a minor of such age is presumed lacking the
mental element of a crime the capacity to know what is wrong as
distinguished from what is right or to determine the morality of
human acts; wrong in the sense in which the term is used in moral
wrong.[9] However, such presumption is rebuttable.[10] For a minor
at such an age to be criminally liable, the prosecution is
burdened[11]to prove beyond reasonable doubt, by direct or
circumstantial evidence, that he acted with discernment, meaning
that he knew what he was doing and that it was wrong. [12] Such
circumstantial evidence may include the utterances of the minor;
his overt acts before, during and after the commission of the crime
relative thereto; the nature of the weapon used in the commission
of the crime; his attempt to silence a witness; his disposal of
evidence or his hiding the corpus delicti.
 In the present case, the prosecution failed to prove beyond
reasonable doubt that the petitioner, who was thirteen (13) years
of age when the crime charged was committed, acted with
discernment relative to the sale of shabu to the poseur-buyer. The
only evidence of the prosecution against the petitioner is that he
was in a car with his cousin, co-accused Sonny Zarraga, when the
latter inquired from the poseur-buyer, SPO1 Bonifacio Guevarra, if
he could afford to buy shabu. SPO1 Guevarra replied in the
affirmative, after which the accused Zarraga called the petitioner to
bring out and hand over the shabu wrapped in plastic and white
soft paper. The petitioner handed over the plastic containing
the shabu to accused Zarraga, who handed the same to the
poseur-buyer:
Q Whom did you approach to buy the shabu?
A The two of them, Sir.
Q While the two of them was (sic) sitting inside the car, what did
you tell them?
A They asked me if I can afford to buy the 100 grams, Sir.
Q And what was your response?
A I answer in (sic) affirmative, Sir.
Q And what happened next?
A After that I showed my money, Sir.
Q Now, tell us when you said they reply (sic) in the affirmative
specifically. I withdraw that.
Q When you said they asked you whether you can afford to buy
100 grams tell us who asked you that question?
A Sonny Zarraga, Sir.
Q And after you answer (sic) in the affirmative, what was his
response?
A He let his companion to (sic) bring out the shabu, Sir.
Q Did his companion bring out the shabu?
A Yes, Sir.
Q What happened to the shabu?
517
A Alvin Jose handed the shabu to his companion Sonny
Zarraga.
Q After that, what did Sonny Zarraga do with the shabu?
A He handed it to me, Sir.
Q After this shabu was handed to you, what happened next?
A After examining the shabu, I put it in my pocket and then I
handed to him the money, Sir.
Q When you say money, which money are you referring to?
A The P1,000.00 bill with the bundle of boodle money, Sir.
Q Now, after you handed the money to the accused, what
happened next?
A I made signs to my companions, Sir.
Q What signs did you give?
A I acted upon our agreement by scratching my head, Sir.
Q And how did your companions respond to your signal?
A After scratching my head, my companions approached us
and arrested them.
Q Now, tell us, do you know, in particular, who arrested Sonny
Zarraga?
A Yes, Sir.
Q Tell us.
A SPO1 William Manglo and PO3 Wilfredo Luna, Sir.
Q Can you describe to us the manner by which Sonny Zarraga
was arrested by these police officers?
A Yes, Sir.
Q Please tell us.
A They introduced themselves as NARCOM operatives, Sir.
Q And after that, what happened?
A They recovered the money from Sonny Zarraga, Sir.[13]
Q What happened to the shabu which was handed to you by
the accused?
 A It was brought by our office to the crime laboratory, Sir. Q Mr. Guevarra, may I remind you that, in your affidavit, you
stated the age of the boy?
Q Who made the request for its examination?
A I cannot recall anymore, Sir.
A SPO3 Edgar Groyon, Sir.
Q Were you not surprised from just looking at the boy at his
Q Earlier, you said that the shabu was handed to you. What did age, were you not surprised that a young boy like that
you do with the shabu? would be in a group selling drugs?
A While we were at the area, I handed it to SPO1 William FISCAL:
Manglo, Sir.
It calls for an opinion, Your Honor.
Q Tell us, when this shabu was handed to you by the accused,
in what container was it contained? ATTY. VERANO:
A When it was handed to me by Sonny Zarraga it was wrapped May I ask, Your Honor, if he did not further interrogate why or
in a plastic and white soft paper, Sir.[14] how this very young boy (sic) selling 100 grams of shabu.
It was accused Zarraga who drove the car and transacted with COURT:
the poseur-buyer relative to the sale of shabu. It was also accused The witness may answer.
Zarraga who received the buy-money from the poseur-buyer.
Aside from bringing out and handing over the plastic bag to WITNESS:
accused Zarraga, the petitioner merely sat inside the car and had A No more, Sir, because I know that young boys are being used
no other participation whatsoever in the transaction between the by pushers.[15]
accused Zarraga and the poseur-buyer. There is no evidence that
the petitioner knew what was inside the plastic and soft white Even on cross-examination, the public prosecutor failed to
paper before and at the time he handed over the same to his elicit from the petitioner facts and circumstances showing his
cousin. Indeed, the poseur-buyer did not bother to ask the capacity to discern right from wrong. We quote the questions of
petitioner his age because he knew that pushers used young boys the public prosecutor on cross-examination and the petitioners
in their transactions for illegal drugs. We quote the testimony of the answers thereto:
poseur-buyer: FISCAL:
Cross, Your Honor. May I proceed.
ATTY. VERANO:
COURT:
Q Did you try to find out if they were friends of your informant? Please proceed.
A No, Sir. FISCAL:
Q Did you find out also the age of this Mr. Alvin Yamson? Q Mr. Witness, you started your narration that it started on
A I dont know the exact age, what I know is that he is a minor, November 13, 1995 and did I hear it right that you went to
Sir. Manuela at 5 oclock in the afternoon?

Q Eventually, you find (sic) out how old he is (sic)? WITNESS:

A I dont know, Sir. A Yes, Sir.

518
Q Now, when you went to Manuela, you came from Filinvest, Q Until the time that you reached the third level parking of
Quezon City? You left Filinvest, Quezon City, at 12 oclock? Megamall, he had not made any call?
A No, Sir. A No, Sir.
Q What time did you leave? Q And yet when you reach (sic) the third level parking of the
Megamall, you claimed that there was already this group
A After lunch, Sir. which met you?
Q Now, on the second day which you claimed that you were in A Yes, Sir.
the custody of the police, you said that at one occasion on
that day, you have (sic) a chance to be with your cousin in Q And this group were the policemen who are the companions
a [L]ancer car and it was inside that [L]ancer car when your of the male person who arrested you?
cousin saw his own cellular phone on one of the seats of
the car, is that correct? A Yes, Sir.

A Yes, Sir. Q Do you know the reason why they were there at that time?
A No, Sir.
Q Did your cousin tell you that that was his first opportunity to
make a call to anybody since the day that you were Q These people do not know your car?
arrested?
A No, Sir.
A He did not say anything, he just get (sic) the cellular phone.
FISCAL:
Q Did you come to know the reason how that cellular phone
appeared inside that [L]ancer car? No further question, Your Honor.

A No, Sir. ATTY. VERANO:

Q Now, going back to the first day of your arrest. You said that
you were accosted by a male person at the workshop and
then you went out of Megamall and when you went outside,
this man saw the key of the car dangling at the waist. At
whose waist?
A From my cousin.
Q And at that time, that person did not have any knowledge
where your car was?
A No, Sir.
Q And your cousin told him that your car was parked at the third
level parking area of SM Megamall, is that correct?
A Yes, Sir.
Q And at that time, that man did not make any radio call to
anybody?
A No, Sir.
No re-direct, Your Honor.
COURT:
Q Mr. Witness, earlier you stated that you are not a drug user
nor have you seen any shabu. In support of your claim, are
you willing to submit yourself to an examination?
WITNESS:
A Yes, Your Honor.
Q Are you willing to submit a sample of your urine to this Court?
A Yes, Sir.
COURT:
The witness is discharged.[16]
The claim of the OSG that the prosecution was able to prove
that the petitioner conspired with his co-accused to sell shabu to
the poseur-buyer, and thereby proved the capacity of the petitioner

519
to discern right from wrong, is untenable. Conspiracy is defined as
an agreement between two or more persons to commit a crime
and decide to commit it. Conspiracy presupposes capacity of the
parties to such conspiracy to discern what is right from what is
wrong. Since the prosecution failed to prove that the petitioner
acted with discernment, it cannot thereby be concluded that he
conspired with his co-accused. Indeed, in People v.
Estepano,[17] we held that:
Clearly, the prosecution did not endeavor to establish Renes
mental capacity to fully appreciate the consequences of his
unlawful act. Moreover, its cross-examination of Rene did not, in
any way, attempt to show his discernment. He was merely asked
about what he knew of the incident that transpired on 16 April
1991 and whether he participated therein. Accordingly, even if he
was, indeed, a co-conspirator, he would still be exempt from
criminal liability as the prosecution failed to rebut the
presumption of non-discernment on his part by virtue of his age.
The cross-examination of Rene could have provided the
prosecution a good occasion to extract from him positive
indicators of his capacity to discern. But, in this regard, the
government miserably squandered the opportunity to incriminate
him.[18]
IN LIGHT OF ALL THE FOREGOING, the petition is
GRANTED. The Decision of the Court of Appeals in CA-G.R. CR
No. 22289 which affirmed the Decision of the Regional Trial Court
of Calamba, Laguna, Branch 36, is SET ASIDE. The petitioner is
ACQUITTED of the crime charged for insufficiency of evidence.[19]
No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-
Nazario, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
520
FIRST DIVISION
G.R. No. 182239 March 16, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
HERMIE M. JACINTO, Accused-Appellant.
DECISION
PEREZ, J.:
Once again, we recite the time-honored principle that the defense of
alibi cannot prevail over the victim’s positive identification of the accused as
the perpetrator of the crime.1 For it to prosper, the court must be convinced
that there was physical impossibility on the part of the accused to have been
at the locus criminis at the time of the commission of the crime.2
Nevertheless, a child in conflict with the law, whose judgment of conviction
has become final and executory only after his disqualification from availing
of the benefits of suspended sentence on the ground that he/she has
exceeded the age limit of twenty-one (21) years, shall still be entitled to the
right to restoration, rehabilitation, and reintegration in accordance with
Republic Act No. 9344, otherwise known as "An Act Establishing a
Comprehensive Juvenile Justice and Welfare System, Creating the Juvenile
Justice and Welfare Council under the Department of Justice, Appropriating
Funds Therefor and for Other Purposes."
Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto
seeks before this Court the reversal of the judgment of his conviction.4
The Facts
In an Information dated 20 March 20035 filed with the Regional Trial Court
and docketed as Criminal Case No. 1679-13-141[1],6 appellant was accused
of the crime of RAPE allegedly committed as follows:
That on or about the 28th day of January, 2003 at about 7:00 o’clock in the
evening more or less, at barangay xxx, municipality of xxx, province of xxx
and within the jurisdiction of this Honorable Court, [Hermie M. Jacinto], with
lewd design did then and there willfully, unlawfully and feloniously had
carnal knowledge with one AAA, a five-year old minor child.
CONTRARY TO LAW, with the qualifying/aggravating circumstance of
minority, the victim being only five years old.7
On 15 July 2003, appellant entered a plea of not guilty.8 During pre-trial,9 the
defense admitted the existence of the following documents: (1) birth
certificate of AAA, showing that she was born on 3 December 1997; (2)
police blotter entry on the rape incident; and (3) medical certificate, upon
presentation of the original or upon identification thereof by the physician.
Trial ensued with the prosecution and the defense presenting witnesses to
prove their respective versions of the story.
Evidence for the Prosecution
The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki
[Julito]12 may be summarized in the following manner:
FFF and appellant have been neighbors since they were born. FFF’s house
is along the road. That of appellant lies at the back approximately 80 meters
from FFF. To access the road, appellant has to pass by FFF’s house, the
frequency of which the latter describes to be "every minute [and] every
hour." Also, appellant often visits FFF because they were close friends. He
bore no grudge against appellant prior to the incident.13
AAA likewise knows appellant well. She usually calls him kuya. She sees
him all the time – playing at the basketball court near her house, fetching
water, and passing by her house on his way to the road. She and appellant
used to be friends until the incident.14
At about past 6 o’clock in the evening of 28 January 2003, FFF sent his
eight-year-old daughter CCC to the store of Rudy Hatague to buy cigarettes.
AAA followed CCC. When CCC returned without AAA, FFF was not
alarmed. He thought she was watching television at the house of her aunt
Rita Lingcay [Rita].15
Julito went to the same store at around 6:20 in the evening to buy a bottle of
Tanduay Rum.16 At the store, he saw appellant place AAA on his lap.17 He
was wearing sleeveless shirt and a pair of short pants.18 All of them left the
store at the same time.19 Julito proceeded to the house of Rita to watch
television, while appellant, who held the hand of AAA, went towards the
direction of the "lower area or place."20
AAA recalled that appellant was wearing a chaleko (sando) and a pair of
short pants21 when he held her hand while on the road near the store.22 They
walked towards the rice field near the house of spouses Alejandro and
Gloria Perocho [the Perochos].23 There he made her lie down on harrowed
ground, removed her panty and boxed her on the chest.24 Already half-
naked from waist down,25 he mounted her, and, while her legs were pushed
521
apart, pushed his penis into her vagina and made a push and pull
movement.26 She felt pain and cried.27 Afterwards, appellant left and
proceeded to the Perochos.28 She, in turn, went straight home crying.29
FFF heard AAA crying and calling his name from downstairs.30 She was
without slippers.31 He found her face greasy.32 There was mud on her head
and blood was oozing from the back of her head.33 He checked for any injury
and found on her neck a contusion that was already turning black.34 She had
no underwear on and he saw white substance and mud on her
vagina.35 AAA told him that appellant brought her from the store36 to the
grassy area at the back of the house of the Perochos;37 that he threw away
her pair of slippers, removed her panty, choked her and boxed her
breast;38 and that he proceeded thereafter to the Perochos.39
True enough, FFF found appellant at the house of the Perochos.40 He asked
the appellant what he did to AAA.41Appellant replied that he was asked to
buy rum at the store and that AAA followed him.42 FFF went home to check
on his daughter,43 afterwhich, he went back to appellant, asked again,44 and
boxed him.45
Meanwhile, at around 7:45 in the evening of even date, Julito was still
watching television at the house of Rita.46AAA and her mother MMM
arrived.47 AAA was crying.48 Julito pitied her, embraced her, and asked what
happened to her, to which she replied that appellant raped her.49 Julito left
and found appellant at the Perochos.50 Julito asked appellant, "Bads, did
you really rape the child, the daughter of [MMM]?" but the latter ignored his
question.51Appellant’s aunt, Gloria, told appellant that the policemen were
coming to which the appellant responded, "Wait a minute because I will
wash the dirt of my elbow (sic) and my knees."52 Julito did found the elbows
and knees of appellant with dirt.53
On that same evening, FFF and AAA proceeded to the police station to
have the incident blottered.54 FFF also had AAA undergo a physical check
up at the municipal health center.55 Dr. Bernardita M. Gaspar, M.D., Rural
Health Physician, issued a medical certificate56 dated 29 January 2003. It
reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.
3. Hematoma over the left upper arm, lateral area
 4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and whitish mucoid-
like material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 o’clock and 9 o’clock position
Impression
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to
another examination at the provincial hospital on the following day. Dr.
Christine Ruth B. Micabalo, Medical Officer III of the provincial hospital,
attended to her and issued a medico-legal certificate dated 29 January
2003,58 the pertinent portion of which reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except
No. 6 and 7 there is no bleeding in this time of examination. (sic)59
Evidence for the Defense
Interposing the defense of alibi, appellant gave a different version of the
story. To corroborate his testimony, Luzvilla Balucan [Luzvilla] and his aunt
Gloria took the witness stand to affirm that he was at the Perochos at the
time of the commission of the crime.60 Luzvilla even went further to state that
she actually saw Julito, not appellant, pick up AAA on the road.61 In addition,
Antonia Perocho [Antonia], sister-in-law of appellant’s aunt, Gloria,62 testified
on the behavior of Julito after the rape incident was revealed.63
Appellant claimed that he lives with his aunt, not with his parents whose
house stands at the back of FFF’s house.64He denied that there was a need
to pass by the house of FFF in order to access the road or to fetch
water.65 He, however, admitted that he occasionally worked for FFF,66 and
whenever he was asked to buy something from the store, AAA always
approached him.67
522
At about 8 o’clock in the morning of 28 January 2003, appellant went to the
Perochos to attend a birthday party. At 6:08 in the evening, while the
visitors, including appellant and his uncle Alejandro Perocho [Alejandro],
were gathered together in a drinking session, appellant’s uncle sent him to
the store to buy Tanduay Rum. Since the store is only about 20 meters from
the house, he was able to return after three (3) minutes. He was certain of
the time because he had a watch .68
Appellant’s aunt, Gloria, the lady of the house, confirmed that he was in her
house attending the birthday party; and that appellant went out between 6
and 7 in the evening to buy a bottle of Tanduay from the store. She recalled
that appellant was back around five (5) minutes later. She also observed
that appellant’s white shorts and white sleeveless shirt were clean.69
At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at
the kitchen having a drink with his uncle Alejandro and the rest of the
visitors.71 She went out to relieve herself at the side of the tree beside the
road next to the house of the Perochos.72 From where she was, she saw
Julito, who was wearing black short pants and black T-shirt, carry
AAA.73 AAA’s face was covered and she was wiggling.74 This did not alarm
her because she thought it was just a game.75 Meanwhile, appellant was still
in the kitchen when she returned.76 Around three (3) minutes later, Luzvilla
saw Julito, now in a white T-shirt,77 running towards the house of Rita.78 AAA
was slowly following behind.79 Luzvilla followed them.80 Just outside the
house, Julito embraced AAA and asked what the appellant did to her.81 The
child did not answer.82
Luzvilla also followed FFF to the Perochos. She witnessed the punching
incident and testified that appellant was twice boxed by FFF. According to
her, FFF tapped the left shoulder of the appellant, boxed him, and left. FFF
came in the second time and again boxed appellant. This time, he had a
bolo pointed at appellant. Appellant’s uncle Alejandro, a barangay councilor,
and another Civilian Voluntary Organization (CVO) member admonished
FFF.83
On sur-rebuttal, Antonia testified that, at 7 o’clock in the evening, she was
watching the television along with other people at the house of Rita. Around
7:10, Julito, who was wearing only a pair of black short pants without a shirt
on, entered the house drunk. He paced back and forth. After 10 minutes,
AAA came in crying. Julito tightly embraced AAA and asked her what
happened. AAA did not answer. Upon Antonia’s advice, Julito released her
and went out of the house.84
Appellant further testified that at past 7 o’clock in the evening, FFF arrived,
pointed a finger at him, brandished a bolo, and accused him of molesting
AAA. FFF left but returned at around 8 o’clock in the evening. This time, he
boxed appellant and asked again why he molested his daughter.85
On 26 March 2004, the Regional Trial Court rendered its decision,86 the
dispositive portion of which reads:
WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable
doubt of rape committed upon a 5-year old girl, the court sentences him to
death and orders him to pay [AAA] P75,000.000 as rape indemnity and
P50,000.00 as moral damages. With costs87
The defense moved to reopen trial for reception of newly discovered
evidence stating that appellant was apparently born on 1 March 1985 and
that he was only seventeen (17) years old when the crime was committed
on 28 January 2003.88 The trial court appreciated the evidence and reduced
the penalty from death to reclusion perpetua.89 Thus:
WHEREFORE, the judgment of the court imposing the death penalty upon
the accused is amended in order to consider the privileged mitigating
circumstance of minority. The penalty impos[a]ble upon the accused,
therefore[,] is reduced to reclusion perpetua. xxx
Appealed to this Court, the case was transferred to the Court of Appeals for
its disposition in view of the ruling in People v. Mateo and the Internal Rules
of the Supreme Court allowing an intermediate review by the Court of
Appeals of cases where the penalty imposed is death, reclusion
perpetua, or life imprisonment.90
On 29 August 2007, the Court of Appeals AFFIRMED the decision of the
trial court with the following MODIFICATIONS:
xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from
six (6) years and one (1) day to twelve (12) years of prision mayor, as
minimum, to seventeen (17) and four (4) months of reclusion temporal, as
maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim in
the sum of P75,000.00 as civil indemnity, P75,000.00 as moral damages,
and P25,000.00 as exemplary damages and to pay the costs.91
On 19 November 2007, the Court of Appeals gave due course to the
appellant’s Notice of Appeal.92 This Court required the parties to
simultaneously file their respective supplemental briefs.93 Both parties
manifested that they have exhaustively discussed their positions in their
respective briefs and would no longer file any supplement.94
523
Before the Court of Appeals, appellant argued that "THE COURT A QUO
GRAVELY ERRED IN CONVICTING HEREIN ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF RAPE"95 by invoking the
principle that "if the inculpatory facts and circumstances are capable of two
or more reasonable explanations, one of which is consistent with the
innocence of the accused and the other with his guilt, then the evidence
does not pass the test of moral certainty and will not suffice to support a
conviction."96
Our Ruling
We sustain the judgment of conviction.
In the determination of the innocence or guilt of a person accused of rape,
we consider the three well-entrenched principles:
(1) an accusation for rape can be made with facility; it is difficult to prove but
more difficult for the accused, though innocent, to disprove; (2) in view of the
intrinsic nature of the crime of rape in which only two persons are usually
involved, the testimony of the complainant must be scrutinized with extreme
caution; and (3) the evidence for the prosecution must stand or fall on its
own merits, and cannot be allowed to draw strength from the weakness of
the evidence for the defense.97
Necessarily, the credible, natural, and convincing testimony of the victim
may be sufficient to convict the accused.98More so, when the testimony is
supported by the medico-legal findings of the examining physician.99
Further, the defense of alibi cannot prevail over the victim’s positive
identification of the perpetrator of the crime,100except when it is established
that it was physically impossible for the accused to have been at the locus
criminis at the time of the commission of the crime.101
I
A man commits rape by having carnal knowledge of a child under twelve
(12) years of age even in the absence of any of the following circumstances:
(a) through force, threat or intimidation; (b) when the offended party is
deprived of reason or otherwise unconscious; or (c) by means of fraudulent
machination or grave abuse of authority.102
That the crime of rape has been committed is certain. The vivid narration of
the acts culminating in the insertion of appellant’s organ into the vagina of
five-year-old AAA and the medical findings of the physicians sufficiently
proved such fact.
AAA testified: Q What was painful?

PROS. OMANDAM: A My vagina.

xxxx Q Did you cry?

Q You said Hermie laid you on the ground, removed your panty and
boxed you, what else did he do to you?
A He mounted me.
Q When Hermie mounted you, was he facing you?
A Yes.
A Yes.103
The straightforward and consistent answers to the questions, which were
phrased and re-phrased in order to test that AAA well understood the
information elicited from her, said it all – she had been raped. When a
woman, more so a minor, says so, she says in effect all that is essential to
show that rape was committed.104 Significantly, youth and immaturity are
normally badges of truth and honesty.105

Q When he mounted you what did he do, did he move?
A He moved his ass, he made a push and pull movement.
Q When he made a push and pull movement, how were your legs
positioned?
A They were apart.
Further, the medical findings and the testimony of Dr. Micabalo106 revealed
that the hymenal lacerations at 5 o’clock and 9 o’clock positions could have
been caused by the penetration of an object; that the redness of the introitus
could have been "the result of the repeated battering of the object;" and that
such object could have been an erect male organ.107
The credible testimony of AAA corroborated by the physician’s finding of
penetration conclusively established the essential requisite of carnal
knowledge.108

Q Who pushed them apart? II

A Hermie. The real identity of the assailant and the whereabouts of the appellant at the
time of the commission of the crime are now in dispute.
Q Did Hermie push anything at you?
The defense would want us to believe that it was Julito who defiled AAA,
A Yes. and that appellant was elsewhere when the crime was committed.109

Q What was that? We should not, however, overlook the fact that a victim of rape could readily
identify her assailant, especially when he is not a stranger to her,
A His penis. considering that she could have a good look at him during the commission
of the crime.110 AAA had known appellant all her life. Moreover, appellant
Q Where did he push his penis? and AAA even walked together from the road near the store to the situs
criminus111 that it would be impossible for the child not to recognize the man
A To my vagina. who held her hand and led her all the way to the rice field.

Q Was it painful? We see no reason to disturb the findings of the trial court on the unwavering
testimony of AAA.
A Yes.
524
The certainty of the child, unusually intelligent for one so young, that it was
accused, whom she called "kuya" and who used to play basketball and fetch
water near their house, and who was wearing a sleeveless shirt and shorts
at the time he raped her, was convincing and persuasive. The defense
attempted to impute the crime to someone else – one Julito Apiki, but the
child, on rebuttal, was steadfast and did not equivocate, asserting that it was
accused who is younger, and not Julito, who is older, who molested her.112
In a long line of cases, this Court has consistently ruled that the
determination by the trial court of the credibility of the witnesses deserves
full weight and respect considering that it has "the opportunity to observe the
witnesses’ manner of testifying, their furtive glances, calmness, sighs and
the scant or full realization of their oath,"113 unless it is shown that material
facts and circumstances have been "ignored, overlooked, misconstrued, or
misinterpreted."114
Further, as correctly observed by the trial court:
xxx His and his witness’ attempt to throw the court off the track by imputing
the crime to someone else is xxx a vain exercise in view of the private
complainant’s positive identification of accused and other corroborative
circumstances. Accused also admitted that on the same evening, Julito
Apiki, the supposed real culprit, asked him "What is this incident, Pare?",
thus corroborating the latter’s testimony that he confronted accused after
hearing of the incident from the child."115
On the other hand, we cannot agree with the appellant that the trial court
erred in finding his denial and alibi weak despite the presentation of
witnesses to corroborate his testimony. Glaring inconsistencies were all over
their respective testimonies that even destroyed the credibility of the
appellant’s very testimony.
Appellant testified that it was his uncle Alejandro Perocho who sent him to
store to buy Tanduay; that he gave the bottle to his uncle; and that they had
already been drinking long before he bought Tanduay at the store.
This was contradicted by the testimony of his aunt Gloria, wife of his uncle
Alejandro. On cross-examination, she revealed that her husband was not
around before, during, and after the rape incident because he was then at
work.116 He arrived from work only after FFF came to their house for the
second time and boxed appellant.117 It was actually the fish vendor, not her
husband, who asked appellant to buy Tanduay.118 Further, the drinking
session started only after the appellant’s errand to the store.119
525
Neither was the testimony of Luzvilla credible enough to deserve
consideration.
Just like appellant, Luzvilla testified that Alejandro joined the drinking
session. This is contrary to Gloria’s statement that her husband was at work.
Luzvilla’s testimony is likewise inconsistent with that of sur-rebuttal witness
Antonia Perocho. Antonia recalled that Julito arrived without a shirt on. This
belied Luzvilla’s claim that Julito wore a white shirt on his way to the house
of Rita. In addition, while both the prosecution, as testified to by AAA and
Julito, and the defense, as testified to by Gloria, were consistent in saying
that appellant wore a sleeveless shirt, Luzvilla’s recollection differ in that
Julito wore a T-shirt (colored black and later changed to white), and, thus, a
short-sleeved shirt.
Also, contrary to Luzvilla’s story that she saw AAA walking towards Rita’s
house three (3) minutes after she returned to the Perochos at 6:38 in the
evening, Antonia recalled that AAA arrived at the house of Rita at 7:30. In
this respect, we find the trial court’s appreciation in order. Thus:
xxx. The child declared that after being raped, she went straight home,
crying, to tell her father that Hermie had raped her. She did not first drop into
the house of Lita Lingkay to cry among strangers who were watching TV, as
Luzvilla Balucan would have the court believe. When the child was seen at
the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it was only
later, after she had been brought there by her mother Brenda so that Lita
Lingkay could take a look at her ˗ just as Julito Apiki said.120
Above all, for alibi to prosper, it is necessary that the corroboration is
credible, the same having been offered preferably by disinterested
witnesses. The defense failed thuswise. Its witnesses cannot qualify as
such, "they being related or were one way or another linked to each
other."121
Even assuming for the sake of argument that we consider the
corroborations on his whereabouts, still, the defense of alibi cannot prosper.
We reiterate, time and again, that the court must be convinced that it would
be physically impossible for the accused to have been at the locus
criminis at the time of the commission of the crime.122
Physical impossibility refers to distance and the facility of access between
the situs criminis and the location of the accused when the crime was
committed. He must demonstrate that he was so far away and could not
have been physically present at the scene of the crime and its immediate
vicinity when the crime was committed.123
In People v. Paraiso,124 the distance of two thousand meters from the place
of the commission of the crime was considered not physically impossible to
reach in less than an hour even by foot.125 Inasmuch as it would take the
accused not more than five minutes to rape the victim, this Court
disregarded the testimony of the defense witness attesting that the accused
was fast asleep when she left to gather bamboo trees and returned several
hours after. She could have merely presumed that the accused slept all
throughout.126
In People v. Antivola,127 the testimonies of relatives and friends
corroborating that of the appellant that he was in their company at the time
of the commission of the crime were likewise disregarded by this Court in
the following manner:
Ruben Nicolas, the appellant’s part-time employer, and Marites Capalad,
the appellant’s sister-in-law and co-worker, in unison, vouched for the
appellant’s physical presence in the fishpond at the time Rachel was raped.
It is, however, an established fact that the appellant’s house where the
rape occurred, was a stone’s throw away from the fishpond. Their
claim that the appellant never left their sight the entire afternoon of
December 4, 1997 is unacceptable. It was impossible for Marites to have
kept an eye on the appellant for almost four hours, since she testified that
she, too, was very much occupied with her task of counting and recording
the fishes being harvested. Likewise, Mr. Nicolas, who, admittedly was 50
meters away from the fishpond, could not have focused his entire attention
solely on the appellant. It is, therefore, not farfetched that the appellant
easily sneaked out unnoticed, and along the way inveigled the victim,
brought her inside his house and ravished her, then returned to the
fishpond as if he never left.128 (Emphasis supplied.) 1avv phi 1
As in the cases above cited, the claim of the defense witnesses that
appellant never left their sight, save from the 5-minute errand to the store, is
contrary to ordinary human experience. Moreover, considering that the
farmland where the crime was committed is just behind the house of the
Perochos, it would take appellant only a few minutes to bring AAA from the
road near the store next to the Perochos down the farmland and
consummate the crime. As correctly pointed out by the Court of Appeals,
appellant could have committed the rape after buying the bottle of Tanduay
and immediately returned to his uncle’s house.129 Unfortunately, the
testimonies of his corroborating witnesses even bolstered the fact that he
was within the immediate vicinity of the scene of the crime.130
526
Clearly, the defense failed to prove that it was physically impossible for
appellant to have been at the time and place of the commission of the crime.
All considered, we find that the prosecution has sufficiently established the
guilt of the appellant beyond reasonable doubt.
III
In the determination of the imposable penalty, the Court of Appeals correctly
considered Republic Act No. 9344 (Juvenile Justice and Welfare Act of
2006) despite the commission of the crime three (3) years before it was
enacted on 28 April 2006.
We recognize its retroactive application following the rationale elucidated
in People v. Sarcia:131
[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of the
Act to those who have been convicted and are serving sentence at the time
of the effectivity of this said Act, and who were below the age of 18 years at
the time of the commission of the offense. With more reason, the Act
should apply to this case wherein the conviction by the lower court is
still under review.133 (Emphasis supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years
but below eighteen (18) years of age from criminal liability, unless the child
is found to have acted with discernment, in which case, "the appropriate
proceedings" in accordance with the Act shall be observed.134
We determine discernment in this wise:
Discernment is that mental capacity of a minor to fully appreciate the
consequences of his unlawful act.135 Such capacity may be known and
should be determined by taking into consideration all the facts and
circumstances afforded by the records in each case.136
xxx The surrounding circumstances must demonstrate that the minor knew
what he was doing and that it was wrong.137 Such circumstance includes the
gruesome nature of the crime and the minor’s cunning and shrewdness.138
In the present case, we agree with the Court of Appeals that: "(1) choosing
an isolated and dark place to perpetrate the crime, to prevent detection[;]
and (2) boxing the victim xxx, to weaken her defense" are indicative of then
seventeen (17) year-old appellant’s mental capacity to fully understand the
consequences of his unlawful action.139
Nonetheless, the corresponding imposable penalty should be modified.
The birth certificate of AAA140 shows that she was born on 3 December
1997. Considering that she was only five (5) years old when appellant
defiled her on 28 January 2003, the law prescribing the death penalty when
rape is committed against a child below seven (7) years old141 applies.
The following, however, calls for the reduction of the penalty: (1) the
prohibition against the imposition of the penalty of death in accordance with
Republic Act No. 9346;142 and (2) the privileged mitigating circumstance of
minority of the appellant, which has the effect of reducing the penalty one
degree lower than that prescribed by law, pursuant to Article 68 of the
Revised Penal Code.143
Relying on People v. Bon,144 the Court of Appeals excluded death from the
graduation of penalties provided in Article 71 of the Revised Penal
Code.145 Consequently, in its appreciation of the privileged mitigating
circumstance of minority of appellant, it lowered the penalty one degree
from reclusion perpetua and sentenced appellant to suffer the indeterminate
penalty of six (6) years and one (1) day to twelve (12) years of prision
mayor, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal, in its medium period, as maximum.146
We differ.
In a more recent case,147 the Court En Banc, through the Honorable Justice
Teresita J. Leonardo-de Castro, clarified:
Under Article 68 of the Revised Penal Code, when the offender is a minor
under 18 years, the penalty next lower than that prescribed by law shall be
imposed, but always in the proper period. However, for purposes of
determining the proper penalty because of the privileged mitigating
circumstance of minority, the penalty of death is still the penalty to be
reckoned with. Thus, the proper imposable penalty for the accused-
appellant is reclusion perpetua.148 (Emphasis supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:
527
The litmus test xxx in the determination of the civil indemnity is the heinous
character of the crime committed, which would have warranted the
imposition of the death penalty, regardless of whether the penalty actually
imposed is reduced to reclusion perpetua.149
Likewise, the fact that the offender was still a minor at the time he
committed the crime has no bearing on the gravity and extent of injury
suffered by the victim and her family.150 The respective awards of civil
indemnity and moral damages in the amount of ₱75,000.00 each are,
therefore, proper.151
Accordingly, despite the presence of the privileged mitigating circumstance
of minority which effectively lowered the penalty by one degree, we affirm
the damages awarded by the Court of Appeals in the amount of ₱75,000.00
as civil indemnity and ₱75,000.00 as moral damages. And, consistent with
prevailing jurisprudence,152 the amount of exemplary damages should be
increased from ₱25,000.00 to ₱30,000.00.
Automatic Suspension of Sentence; Duration; Appropriate Disposition after
the Lapse of the Period of Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in
conflict with the law notwithstanding that he/she has reached the age of
majority at the time the judgment of conviction is pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under
eighteen (18) years of age at the time of the commission of the offense is
found guilty of the offense charged, the court shall determine and ascertain
any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall
place the child in conflict with the law under suspended sentence, without
need of application: Provided, however, That suspension of sentence
shall still be applied even if the juvenile is already eighteen (18) years
of age or more at the time of the pronouncement of his/her
guilt. (Emphasis supplied.)
xxxx
Applying Declarador v. Gubaton,153 which was promulgated on 18 August
2006, the Court of Appeals held that, consistent with Article 192 of
Presidential Decree No. 603, as amended,154 the aforestated provision does
not apply to one who has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment.155
Meanwhile, on 10 September 2009, this Court promulgated the decision
in Sarcia,156 overturning the ruling in Gubaton. Thus:
The xxx provision makes no distinction as to the nature of the offense
committed by the child in conflict with the law, unlike P.D. No. 603 and A.M.
No. 02-1-18-SC. The said P.D. and Supreme Court (SC) Rule provide that
the benefit of suspended sentence would not apply to a child in conflict with
the law if, among others, he/she has been convicted of an offense
punishable by death, reclusion perpetua or life imprisonment. In construing
Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of
statutory construction that when the law does not distinguish, we should not
distinguish. Since R.A. No. 9344 does not distinguish between a minor who
has been convicted of a capital offense and another who has been
convicted of a lesser offense, the Court should also not distinguish and
should apply the automatic suspension of sentence to a child in conflict with
the law who has been found guilty of a heinous crime.157
The legislative intent reflected in the Senate deliberations158 on Senate Bill
No. 1402 (Juvenile Justice and Delinquency Prevention Act of 2005) further
strengthened the new position of this Court to cover heinous crimes in the
application of the provision on the automatic suspension of sentence of a
child in conflict with the law. The pertinent portion of the deliberation reads:
If a mature minor, maybe 16 years old to below 18 years old is charged,
accused with, or may have committed a serious offense, and may have
acted with discernment, then the child could be recommended by the
Department of Social Welfare and Development (DSWD), by the Local
Council for the Protection of Children (LCPC), or by [Senator Miriam
Defensor-Santiago’s] proposed Office of Juvenile Welfare and Restoration
to go through a judicial proceeding; but the welfare, best interests, and
restoration of the child should still be a primordial or primary consideration.
Even in heinous crimes, the intention should still be the child’s restoration,
rehabilitation and reintegration. xxx (Italics supplied in Sarcia.)159
On 24 November 2009, the Court En Banc promulgated the Revised Rule
on Children in Conflict with the Law,which reflected the same position.160
These developments notwithstanding, we find that the benefits of a
suspended sentence can no longer apply to appellant. The suspension of
sentence lasts only until the child in conflict with the law reaches the
maximum age of twenty-one (21) years.161 Section 40162 of the law and
Section 48163 of the Rule are clear on the matter. Unfortunately, appellant is
now twenty-five (25) years old.
528
Be that as it may, to give meaning to the legislative intent of the Act, the
promotion of the welfare of a child in conflict with the law should extend
even to one who has exceeded the age limit of twenty-one (21) years, so
long as he/she committed the crime when he/she was still a child. The
offender shall be entitled to the right to restoration, rehabilitation and
reintegration in accordance with the Act in order that he/she is given the
chance to live a normal life and become a productive member of the
community. The age of the child in conflict with the law at the time of the
promulgation of the judgment of conviction is not material. What matters is
that the offender committed the offense when he/she was still of tender age.
Thus, appellant may be confined in an agricultural camp or any other
training facility in accordance with Sec. 51 of Republic Act No. 9344.164
Sec. 51. Confinement of Convicted Children in Agricultural Camps and
Other Training Facilities. – A child in conflict with the law may, after
conviction and upon order of the court, be made to serve his/her sentence,
in lieu of confinement in a regular penal institution, in an agricultural camp
and other training facilities that may be established, maintained, supervised
and controlled by the BUCOR, in coordination with the DSWD.
Following the pronouncement in Sarcia,165 the case shall be remanded to
the court of origin to effect appellant’s confinement in an agricultrual camp
or other training facility.
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals
in CA-G.R. CR HC No. 00213 finding appellant Hermie M. Jacinto guilty
beyond reasonable doubt of qualified rape is AFFIRMED with the
following MODIFICATIONS: (1) the death penalty imposed on the appellant
is reduced to reclusion perpetua; and (2) appellant is ordered to pay the
victim P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P30,000.00 as exemplary damages. The case is hereby REMANDED to the
court of origin for its appropriate action in accordance with Section 51 of
Republic Act No. 9344.
SO ORDERED.
Republic of the Philippines
Supreme Court
Manila
 DECISION
FIRST DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 183563

LEONARDO-DE CASTRO, J.:
Plaintiff-Appellee, Present:

CORONA, C.J.,
Chairperson,
Assailed before Us is the Decision[1] of the Court of
LEONARDO-DE CASTRO,
Appeals dated February 8, 2008 in CA-G.R. CR.-H.C. No.
BERSAMIN, 00560, which affirmed with modification the Decision[2] dated
September 9, 2002 of the Regional Trial Court (RTC) of
DEL CASTILLO, and Tacloban City, Branch 7, in Criminal Case Nos. 2001-01-46 to
- versus -
2001-01-53, finding the accused-appellant Henry
VILLARAMA, JR., JJ. Arpon y Juntilla guilty beyond reasonable doubt of one (1)
count of statutory rape and seven (7) counts of rape against
the private complainant AAA.[3]
Promulgated:

On December 29, 1999, the accused-appellant was

charged[4] with eight (8) counts of rape in separate
December 14, 2011
HENRY ARPON y JUNTILLA, informations, the accusatory portions of which state:

Accused-Appellant.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Criminal Case No. 2000-01-46
- - - -x

That sometime in the year 1995 in the municipality of

[XXX], Province of Leyte, Philippines, and within the jurisdiction
of this Honorable Court, the said accused, who is the uncle of
[AAA], the offended party, actuated by lust, did, then and
529
there, willfully, unlawfully and feloniously, succeed in having
carnal knowledge of the said [AAA], who was then only eight
(8) years old, without her consent and against her will.
Contrary to law with the aggravating circumstance that
the victim is under eighteen (18) years of age and the offender
is a relative by consanguinity within the third civil degree.[5]
Criminal Case No. 2000-01-47
That sometime in the month of July, 1999 in the
municipality of [XXX], Province of Leyte, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, who
is the uncle of [AAA], the twelve-year-old offended party,
actuated by lust, did, then and there, willfully, unlawfully and
feloniously, and with the use of force and violence succeed in
having carnal knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating circumstance that
the victim is under eighteen (18) years of age and the offender
is a relative by consanguinity within the third civil degree.[6]
Criminal Case No. 2000-01-48
That sometime in the month July 1999 in the
municipality of [XXX], Province of Leyte, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, who
is the uncle of [AAA], the twelve-year-old offended party,
actuated by lust, did, then and there, willfully, unlawfully and
530
feloniously, and with the use of force and violence succeed in
having carnal knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating circumstance that
the victim is under eighteen (18) years of age and the offender
is a relative by consanguinity within the third civil degree.[7]
Criminal Case No. 2000-01-49
That sometime in the month of July, 1999 in the
municipality of [XXX], Province of Leyte, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, who
is the uncle of [AAA], the twelve-year-old offended party,
actuated by lust, did, then and there, willfully, unlawfully and
feloniously, and with the use of force and violence succeed in
having carnal knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating circumstance that
the victim is under eighteen (18) years of age and the offender
is a relative by consanguinity within the third civil degree.[8]
Criminal Case No. 2000-01-50
That sometime in the month of July, 1999 in the
municipality of [XXX], Province of Leyte, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, who
is the uncle of [AAA], the twelve-year-old offended party,
actuated by lust, did, then and there, willfully, unlawfully and
feloniously, and with the use of force and violence succeed in
having carnal knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating circumstance that
the victim is under eighteen (18) years of age and the offender
is a relative by consanguinity within the third civil degree.[9]
Criminal Case No. 2000-01-51
That sometime in the month of July, 1999 in the
municipality of [XXX], Province of Leyte, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, who
is the uncle of [AAA], the twelve-year-old offended party,
actuated by lust, did, then and there, willfully, unlawfully and
feloniously, and with the use of force and violence succeed in
having carnal knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating circumstance that
the victim is under eighteen (18) years of age and the offender
is a relative by consanguinity within the third civil degree.[10]
Criminal Case No. 2000-01-52
531
That sometime in the month of August, 1999 in the
municipality of [XXX], Province of Leyte, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, who
is the uncle of [AAA], the twelve-year-old offended party,
actuated by lust, did, then and there, willfully, unlawfully and
feloniously, and with the use of force and violence succeed in
having carnal knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating circumstance that
the victim is under eighteen (18) years of age and the offender
is a relative by consanguinity within the third civil degree.[11]
Criminal Case No. 2000-01-47
That sometime in the month of August, 1999 in the
municipality of [XXX], Province of Leyte, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, who
is the uncle of [AAA], the twelve-year-old offended party,
actuated by lust, did, then and there, willfully, unlawfully and
feloniously, and with the use of force and violence succeed in
having carnal knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating circumstance that
the victim is under eighteen (18) years of age and the offender
is a relative by consanguinity within the third civil
degree.[12] (Emphases ours.)

During the arraignment of the accused-appellant on
November 28, 2000, he entered a plea of not guilty.[13] On
March 13, 2001, the pre-trial conference of the cases was
conducted and the parties stipulated on the identity of the
accused-appellant in all the cases, the minority of the victim
and the fact that the accused appellant is the uncle of the
victim.[14]
The pre-trial order containing the foregoing stipulations
was signed by the accused and his counsel. The cases were
then heard on consolidated trial.
The prosecution presented the lone testimony of AAA
to prove the charges against the accused-appellant. AAA
testified that she was born on November 1, 1987.[15] In one
afternoon when she was only eight years old, she stated that
the accused-appellant raped her inside their house. She could
not remember, though, the exact month and date of the
incident.The accused-appellant stripped off her shorts,
panties and shirt and went on top of her. He had his clothes
on and only pulled down his zipper. He then pulled out his
organ, put it in her vagina and did the pumping motion. AAA
felt pain but she did not know if his organ penetrated her
vagina. When he pulled out his organ, she did not see any
blood. She did so only when she urinated.[16]
AAA also testified that the accused-appellant raped her
again in July 1999 for five times on different nights. The
532
accused-appellant was then drinking alcohol with BBB, the
stepfather of AAA, in the house of AAAs neighbor. He came to
AAAs house, took off her panty and went on top of her. She
could not see what he was wearing as it was nighttime. He
made her hold his penis then he left. When asked again how
the accused-appellant raped her for five nights in July of the
said year, AAA narrated that he pulled down her panty, went
on top of her and pumped. She felt pain as he put his penis
into her vagina. Every time she urinated, thereafter, she felt
pain. AAA said that she recognized the accused-appellant as
her assailant since it was a moonlit night and their window
was only covered by cloth. He entered through the kitchen as
the door therein was detached.[17]
AAA further related that the accused-appellant raped
her again twice in August 1999 at nighttime. He kissed her and
then he took off his shirt, went on top of her and
pumped. She felt pain in her vagina and in her chest because
he was heavy. She did not know if his penis penetrated her
vagina. She related that the accused-appellant was her uncle
as he was the brother of her mother. AAA said that she did
not tell anybody about the rapes because the accused-
appellant threatened to kill her mother if she did. She only
filed a complaint when he proceeded to also rape her younger
sister, DDD.[18]
After the testimony of AAA, the prosecution formally
offered its documentary evidence, consisting of: (1) Exhibit A -
the Medico-Legal Report,[19] which contained the results of
the medical examination conducted on AAA by Dr. Rommel
Capungcol and Dr. Melissa Adel Gagala on October 26, 1999; Upon the other hand, the defense called the accused-
and (2) Exhibit B - the Social Case Study Report[20] pertaining appellant to the witness stand to deny the informations filed
to AAAs case, which was issued by the Municipal Social against him and to refute the testimony of AAA. He testified
Welfare and Development Office of the Province of Leyte. that when the first incident of rape allegedly happened in
1995, he was only 13 years old as he was born on February
23, 1982. In 1995, he worked in Sagkahan, Tacloban City as a
The Medico-Legal Report stated the following findings: houseboy for a certain Gloria Salazar and he stayed there up
to 1996. He stated that he was working in Tacloban City when
the alleged rapes happened in the municipality of XXX. When
P. E. Findings: Surg. Findings: he would go home from Tacloban, he would stay at the house
of a certain Fred Antoni. He did not go to the house of AAA as
- (-) Physical injuries.
the latters parents were his enemies. He said that he had a
OB- NOTES: quarrel with AAAs parents because he did not work with them
in the ricefields. He further recounted that in July 1999, he
- Patient came in with history of rape
was also living in Tacloban City and worked there as a
since 8 year old for so many times. last
dishwasher at a restaurant. He worked there from 1998 up to
act was March 1999.
September 1999. The accused-appellant likewise stated that
in August 1999, he was still working at the same restaurant
in Tacloban City.While working there, he did not go home to
O: Pelvic Exam:
XXX as he was busy with work. He denied that he would have
Ext. Genetalia grossly normal. drinking sprees with AAAs stepfather, BBB, because they were
Introitus: Old, healed incomplete
enemies.[22]
laceration at 3 & 9 oclock position

Speculum Exam: not done due to resistance.

On cross-examination, the accused-appellant admitted
Internal Exam: that the mother of AAA was his sister and they were close to
each other. He said that his parents were still alive in 1995 up
to October 1999 and the latter then resided at Calaasan,
Vaginal smear for presence of spermatozoa: = Alangalang, Leyte. He indicated that his parents house was
NEGATIVE[21] about two kilometers away from the house of AAA. While he
was working at the restaurant in Tacloban City, he would visit
his parents once every month, mainly on Sundays.[23]

533

The Judgment of the RTC
On September 9, 2002, the RTC of Tacloban City,
Branch 7, rendered a Decision convicting the accused-
appellant as follows:
WHEREFORE, premises considered, pursuant to Art.
266-A and 266-B of the Revised Penal Code as amended, and
further amended by R.A. 8353 (Rape Law of 1997) and R.A.
7659 (Death Penalty Law) the Court found accused HENRY
ARPON, GUILTY beyond reasonable doubt of ONE COUNT OF
STATUTORY RAPE and SEVEN COUNTS OF RAPE charged under
the informations and sentenced to suffer the maximum
penalty of DEATH, and to indemnify the victim, [AAA] the
amount of Fifty Thousand (P50,000.00) Pesos for each count of
Rape and pay moral damages in the amount of Fifty Thousand
(P50,000.00) Pesos and pay the cost.[24] (Emphases in the
original.)
The court a quo found more credible the testimony of
AAA. The fact that AAA was in tears when she testified
convinced the trial court of the truthfulness of her rape
charges against the accused-appellant. If there were
inconsistencies in AAAs testimony, the trial court deemed the
same understandable considering that AAA was pitted against
a learned opposing counsel. The delay in the reporting of the
rape incidents was not also an indication that the charges
534
were fabricated. Moreover, the trial court ruled that the
findings of the medico-legal officer confirmed that she was
indeed raped. The accused-appellants defense of alibi was
likewise disregarded by the trial court, declaring that it was
not physically impossible for him to be present in XXX at any
time of the day after working hours while he was working in
Tacloban City. The trial court stated that the accused-
appellant was positively identified by AAA as the person who
sexually abused her and she held no grudge against him. The
trial court imposed the penalty of death as it found that AAA
was less than 18 years old at the time of the commission of
the rape incidents and the accused-appellant was her uncle, a
relative by consanguinity within the third civil degree. The
trial court also appreciated against the accused-appellant the
aggravating circumstances of abuse of confidence and
nighttime.
The accused-appellant filed a Motion for
Reconsideration[25] of the RTC Decision, asserting that the trial
court failed to consider his minority as a privileged mitigating
circumstance. As stated in his direct examination, the
accused-appellant claimed that he was born on February 23,
1982, such that he was only 13 and 17 years old when the
incidents of rape allegedly occurred in 1995 and 1999,
respectively. In a Resolution[26] dated November 6, 2002, the
trial court denied the accused-appellants motion, holding that
the latter failed to substantiate with clear and convincing
evidence his allegation of minority.
 The cases were elevated to the Court on automatic
review and were docketed as G.R. Nos. 165201-08.[27] The
parties then filed their respective briefs.[28] On February 7,
2006, we resolved[29] to transfer the cases to the Court of
Appeals pursuant to our ruling in People v. Mateo.[30] The
cases were docketed in the appellate court as CA-G.R. CR.-
H.C. No. 00560.
The Decision of the Court of Appeals
On February 8, 2008, the Court of Appeals promulgated
its assailed decision, decreeing thus:
WHEREFORE, the Decision dated September 9, 2002 of
the Regional Trial Court, Branch 7, Tacloban City in Criminal
Case Nos. 2001-01-46 to 2001-01-53 is AFFIRMED with
modification awarding exemplary damages to [AAA] in the
amount of Twenty[-]Five Thousand (P25,000.00) Pesos for
each count of rape and clarification that the separate award of
Fifty Thousand (P50,000.00) Pesos as moral damages likewise
pertains to each count of rape. The death penalty imposed is
reduced to reclusion perpetua in accord with Rep. Act No.
9346.[31]
The Court of Appeals adjudged that the inconsistencies
pointed out by the accused-appellant in the testimony of AAA
were not sufficient to discredit her. The appellate court held
535
that the exact age of AAA when the incidents of rape occurred
no longer mattered, as she was still a minor at the time. More
significant was her straightforward, categorical and candid
testimony that she was raped eight times by the accused-
appellant. The Court of Appeals also agreed with the ruling of
the RTC that AAAs charges of rape conformed with the
physical evidence and the accused-appellants uncorroborated
defense of alibi could not stand against the positive
identification made by AAA.
As regards the attendant circumstances, the Court of
Appeals ruled that the relationship of the accused-appellant
to AAA was both alleged in the informations and admitted by
the accused-appellant. The appellate court, however, differed
in appreciating against the accused-appellant the qualifying
circumstance of AAAs minority. The lone testimony of AAA on
the said circumstance was held to be an insufficient proof
therefor. The aggravating circumstance of nighttime was also
ruled to be inapplicable as it was not shown that the same
was purposely sought by the accused-appellant or that it
facilitated the commission of the crimes of rape. In view of
the presence of the qualifying circumstance of relationship,
the Court of Appeals awarded exemplary damages in favor of
AAA.
The accused-appellant filed a Notice of Appeal[32] of the
above decision and the same was given due course by the
Court of Appeals in a Resolution[33] dated May 27, 2008.
 On November 17, 2008, the Court resolved to accept
the appeal and required the parties to file their respective
supplemental briefs, if they so desire, within 30 days from
notice.[34]Thereafter, in a Manifestation and Motion[35] filed on
December 24, 2008, the plaintiff-appellee, through the Office
of the Solicitor General, prayed that it be excused from filing a
supplemental brief. On February 3, 2009, the accused-
appellant submitted a Supplemental Brief.[36]
The Issues
In the accused-appellants brief, the following issues
were invoked:
I manner. Contrary to the judgment of the Court of Appeals,
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF THE CRIMES CHARGED DESPITE THE
FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
II
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND
CREDENCE TO THE INCREDIBLE AND INCONSISTENT
TESTIMONY OF THE PRIVATE COMPLAINANT.
536
III
THE COURT A QUO GRAVELY ERRED IN IMPOSING THE
SUPREME PENALTY OF DEATH.[37]
The accused-appellant insists that it was error on the
part of the RTC to give weight to the incredible testimony of
AAA. He alleges that AAA could not state with consistency the
exact date when she was first supposedly raped, as well as her
age at that time. The accused-appellant also avers that AAA
could not remember the dates of the other incidents of rape
charged, all of which were allegedly described in a uniform
the accused-appellant posits that the above inconsistencies
cannot merely be discounted as insignificant. He further
insists that the qualifying circumstances of AAAs minority and
her relationship to the accused-appellant were not duly
proven by the prosecution. The accused-appellant, thus, prays
for a judgment of acquittal.
The Ruling of the Court
After a careful examination of the records of this case,
the Court resolves to deny the appeal, but with a modification
of the penalties and the amount of indemnities awarded.

To recall, the RTC and the Court of Appeals found the
accused-appellant guilty of one (1) count of statutory rape
and seven (7) counts of qualified rape.
Under the information in Criminal Case No. 2000-01-46,
the first incident of rape was alleged to have occurred in 1995
when AAA was only eight years old. However, the accused-
appellant points out that the prosecution failed to
substantiate the said fact as AAAs testimony thereon was too
inconsistent and incredible to be worthy of any belief. He
explains that AAA initially claimed that she was raped for the
first time when she was eight years old. Nonetheless, during
her testimony regarding the incidents of rape that occurred in
July 1999, she said that the accused did the same thing that
he did to her when she was only seven years old. On her
redirect examination, AAA then stated that she was first
raped in 1998 when she was eleven (11) years old.
Presently, Article 266-A of the Revised Penal Code
defines the crime of rape by sexual intercourse as follows:
ART. 266-A. Rape, When and How Committed. Rape is
committed
1. By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
537
a. Through force, threat or intimidation;
b. When the offended party is deprived of reason or is
otherwise unconscious;
c. By means of fraudulent machination or grave abuse
of authority;
d. When the offended party is under twelve (12) years
of age or is demented, even though none of the circumstances
mentioned above be present.
In particular, Article 266-A(1)(d) spells out the definition
of the crime of statutory rape, the elements of which are: (1)
that the offender had carnal knowledge of a woman; and (2)
that such a woman is under twelve (12) years of age or is
demented.[38]
The above provision came into existence by virtue of
Republic Act No. 8353,[39] or the Anti-Rape Law of 1997, which
took effect on October 22, 1997.[40] Prior to this date, the
crime of rape was penalized under Article 335 of the Revised
Penal Code,[41] which provides:
 ART. 335. When and how rape is committed. Rape is
committed by having carnal knowledge of a woman under any
of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age or is
demented.
In People v. Macafe,[42] we explained the concept of
statutory rape under Article 335 of the Revised Penal Code in
this wise:
Rape under paragraph 3 of [Article 335] is termed
statutory rape as it departs from the usual modes of
committing rape. What the law punishes in statutory rape is
carnal knowledge of a woman below twelve years old. Hence,
force and intimidation are immaterial; the only subject of
inquiry is the age of the woman and whether carnal
knowledge took place. The law presumes that the victim does
not and cannot have a will of her own on account of her tender
years; the child's consent is immaterial because of her
presumed incapacity to discern evil from good.[43] (Emphasis
ours.)
538
Manifestly, the elements of statutory rape in the above-
mentioned provisions of law are essentially the same. Thus,
whether the first incident of rape charged in this case did
occur in 1995, i.e., before the amendment of Article 335 of
the Revised Penal Code, or in 1998, after the effectivity of the
Anti-Rape Law of 1997, the prosecution has the burden to
establish the fact of carnal knowledge and the age of AAA at
the time of the commission of the rape.
Contrary to the posturing of the accused-appellant, the
date of the commission of the rape is not an essential element
of the crime of rape, for the gravamen of the offense is carnal
knowledge of a woman.[44] Inconsistencies and discrepancies
in details which are irrelevant to the elements of the crime
are not grounds for acquittal.[45]
As regards the first incident of rape, the RTC credited
with veracity the substance of AAAs testimony. On this
matter, we reiterate our ruling in People v. Condes[46] that:
Time and again, the Court has held that when the
decision hinges on the credibility of witnesses and their
respective testimonies, the trial court's observations and
conclusions deserve great respect and are often accorded
finality. The trial judge has the advantage of observing the
witness' deportment and manner of testifying. Her "furtive
glance, blush of conscious shame, hesitation, flippant or
sneering tone, calmness, sigh, or the scant or full realization of
an oath" are all useful aids for an accurate determination of a
witness' honesty and sincerity. The trial judge, therefore, can
 better determine if witnesses are telling the truth, being in the
ideal position to weigh conflicting testimonies. Unless certain
facts of substance and value were overlooked which, if Q: Just tell what happened to you when you were still 8 years
considered, might affect the result of the case, its assessment old?
must be respected for it had the opportunity to observe the A: I was raped by Tiyo Henry.
conduct and demeanor of the witnesses while testifying and
detect if they were lying. The rule finds an even more stringent
application where said findings are sustained by the [Court of
Q: How did he rape you?
Appeals].[47]
A: He stripped me of my panty, shorts and shirts.

In the instant case, we have thoroughly scrutinized the

testimony of AAA and we found no cogent reason to disturb Q: Do you remember what place did he rape you?
the finding of the RTC that the accused-appellant indeed
A: Yes, sir in our house.
committed the first incident of rape charged. AAA positively
identified the accused-appellant as the perpetrator of the
dastardly crimes. With tears in her eyes, she clearly and
Q: Who were the persons present then at that time?
straightforwardly narrated the said incident of rape as
follows: A: My younger brother and I.

[PROSECUTOR EDGAR SABARRE] Q: About your mother and step father where were they?

A: In the ricefield.

Q: Do you recall of any unusual incident that happened when

you were still 8 years old?
PROS. SABARRE:

[AAA]
May we make it of record that the witness is crying.

A: There was but I cannot anymore remember the exact month

COURT:
and date.

539
Have it on record.

Q: And where did he place his organ?

PROS. SABARRE: A: In my vagina.

Q: Do you still recall was it in the morning, in the afternoon or Q: When he kept on pumping what did you feel?
evening?
A: Pain.[48]
A: In the afternoon.

xxxx
The above testimony of AAA was also corroborated by
the Medico-Legal Report of Dr. Capungcol and Dr. Gagala,
Q: After your clothes and [panty] were taken off by accused who found old, healed, incomplete hymenal lacerations on
what did he do to you next if any? the private part of AAA. [W]hen the testimony of a rape victim
A: He went on top of me.
is consistent with the medical findings, there is sufficient basis
to conclude that there has been carnal knowledge.[49]

Q: Was he still with his clothes on or already naked?

Anent the five incidents of rape that were alleged to
A: He has still clothes on, he did not take off his pants, he only
have been committed in July 1999, the Court disagrees with
pulled down the zipper.
the ruling of the trial court that all five counts were proven
with moral certainty. The testimony of AAA on the said
incidents is as follows:
Q: And when he pulled down the zipper and went on top of
you what did he do next if any?

A: He was pumping on me. Q: How many times did [the accused-appellant] rape you in
July 1999?

A: Five times.
Q: Did he pull out his organ?

A: Yes, sir.
540
Q: Was it in the daytime or night time?

A: Night time. Q: When he took off your shorts and panty what was the
accused wearing at that time?

A: I do not know because I could not see since it was night

Q: Was it in different nights or on the same night? time.
A: Different nights.

Q: When he was on top of [you] was he still wearing

Q: Who were present then at that time when he raped you five something?
times? A: No, sir.
A: My Kuya and other siblings.

Q: What did he do with his penis?

Q: You have companions why were you raped? A: He made me hold it.
A: Because they were sleeping.

Q: Then after he made you hold it what did he do with it?

Q: How did he rape you on that July night for five times, will A: He left.
you please narrate to the court?

A: Because they have been drinking, he came to our house,

pulled out my panty and went on top of me. xxxx

Q: With whom was he drinking? ATTY. SABARRE:

A: With my step father.

Q: You said you were raped on that July evening for five nights
how did he rape you?
Q: Where did they drink?
A: (witness did not answer)
A: In our neighbor.

541
PROS. SABARRE: Q: When he pump what did you feel?

A: Pain.

Make it of record that the witness is crying again.

Q: Why are you crying?

A: I am angry and hurt. COURT:

PROS. SABARRE: Why did you feel pain?

Your honor please may I be allowed to suspend the proceeding A: He placed his penis inside my vagina, everytime I urinate I
considering that the witness is psychologically feel pain.
incapable of further proceeding.

ATTY. SABARRE;
xxxx

How did you recognize that it was Henry Arpon when it was
Q: I have asked you how did the accused rape you will you night time?
please narrate the whole incident to this honorable
court?
A: It was a moonlight night and our window was only covered
A: The same that he did when I was 8 years old, he went on top
of me. by cloth as cover.[50]

Q: What was the same thing you are talking about? From the above testimony, AAA merely described a
single incident of rape. She made no reference whatsoever to
A: He pulled down my panty and went on top of me and pump.
the other four instances of rape that were likewise
supposedly committed in the month of July 1999.

542
 A: My vagina was painful and also my chest because he was
heavy.
The same is also true for the two (2) counts of rape
allegedly committed in August 1999. AAA narrated only one
incident of rape in this manner: Q: Why did you feel pain in your vagina?

A: Because he was raping me.

Q: How many times did [the accused-appellant] rape you in the
month of August 1999?
Q: Did his penis penetrate your vagina?
A: Two times.
A: I do not know.

Q: Was it during day time or night time?

Q: If this Henry Arpon is present now in court could you
A: Nighttime. recognize him?

A: Yes, sir.
Q: How did he rape you again that August 1999?

A: He kissed me. Q: Where is he?

A: That man (witness pointing a detention prisoner when asked

Q: After kissing you what did he do next? his name answered Henry Arpon).[51]

A: He took off his shirts.

It is settled that each and every charge of rape is a

separate and distinct crime that the law requires to be proven
Q: After he took off his shirts what happened?
beyond reasonable doubt. The prosecution's evidence must
A: He went on top of me and pump. pass the exacting test of moral certainty that the law
demands to satisfy the burden of overcoming the appellant's
presumption of innocence.[52] Thus, including the first incident
Q: When he made a pumping motion on top of you what did of rape, the testimony of AAA was only able to establish three
you feel? instances when the accused-appellant had carnal knowledge
of her.
543

The allegation of the accused-appellant that the
testimony of AAA described the incidents of rape in a uniform
manner does not convince this Court. To our mind, AAAs
narration of the sexual abuses committed by the accused-
appellant contained an adequate recital of the evidentiary
facts constituting the crime of rape, i.e., that he placed his
organ in her private part.[53] Etched in our jurisprudence is the
doctrine that a victim of a savage crime cannot be expected to
mechanically retain and then give an accurate account of
every lurid detail of a frightening experience a verity born[e]
out of human nature and experience.[54]
We uphold the ruling of the RTC that the accused-
appellants defense of alibi deserves scant consideration. Alibi
is an inherently weak defense because it is easy to fabricate
and highly unreliable. To merit approbation, the accused must
adduce clear and convincing evidence that he was in a place
other than the situs criminis at the time the crime was
committed, such that it was physically impossible for him to
have been at the scene of the crime when it was
committed.[55] [S]ince alibi is a weak defense for being easily
fabricated, it cannot prevail over and is worthless in the face
of the positive identification by a credible witness that an
accused perpetrated the crime.[56]
In the instant case, we quote with approval the findings
of fact of the trial court that:
544
The distance of [XXX] to Tacloban City is just a few
kilometers and can be negotiated by passenger bus in less than
one (1) hour, hence, it is not impossible for the accused to be
present in [XXX] at any time of the day after working hours
while working in Tacloban. Besides, the accused has his day off
every Sunday, which according to him he spent in [XXX], Leyte.
The accused was positively identified by the victim as
the person who sexually molested her beginning that
afternoon of 1995, and subsequently thereafter in the coming
years up to August 1999.She can not be mistaken on the
identity of the accused, because the first sexual molestation
happened during the daytime, besides, she is familiar with him
being her uncle, the brother of her mother.[57]
Furthermore, the Court rejects the contention of the accused-
appellant that AAA may have been prompted to falsely testify
against him (accused-appellant) in view of the latters quarrel
with AAAs parents when he refused to work with them in the
rice fields.[58] Aside from being uncorroborated, we find the
same specious and implausible. Where the charges against
the appellant involve a heinous offense, a minor
disagreement, even if true, does not amount to a sufficient
justification for dragging a young girl's honor to a merciless
public scrutiny that a rape trial brings in its wake.[59]
As to the accused-appellants objection that there was no
proof of the age of the victim, we affirm the trial courts
finding that the prosecution sufficiently established the age of
AAA when the incidents of rape were committed. The a. If the victim is alleged to be below 3 years of age
testimony of AAA that she was born on November 1, and what is sought to be proved is that she is less than 7 years
old;
1987,[60] the voluntary stipulation of the accused, with
assistance of counsel, regarding the minority of the victim
during pre-trial and his testimony regarding his recollection of
b. If the victim is alleged to be below 7 years of age
the age of the victim,[61] his own niece, all militate against
and what is sought to be proved is that she is less than 12
accused-appellants theory. In People v. Pruna,[62] the Court
years old;
established the guidelines in appreciating age, either as an
element of the crime or as a qualifying circumstance, as
follows: c. If the victim is alleged to be below 12 years of age
and what is sought to be proved is that she is less than 18
years old.
1. The best evidence to prove the age of the offended
party is an original or certified true copy of the certificate of
live birth of such party.
4. In the absence of a certificate of live birth,
authentic document, or the testimony of the victim's mother
or relatives concerning the victim's age, the complainant's
2. In the absence of a certificate of live birth, similar testimony will suffice provided that it is expressly and clearly
authentic documents such as baptismal certificate and school admitted by the accused.
records which show the date of birth of the victim would
suffice to prove age.
5. It is the prosecution that has the burden of proving
the age of the offended party. The failure of the accused to
3. If the certificate of live birth or authentic document object to the testimonial evidence regarding age shall not be
is shown to have been lost or destroyed or otherwise taken against him.(Emphases ours.)
unavailable, the testimony, if clear and credible, of the
victim's mother or a member of the family either by affinity or
consanguinity who is qualified to testify on matters respecting
pedigree such as the exact age or date of birth of the
offended party pursuant to Section 40, Rule 130 of the Rules Notably, in its Decision, the trial court observed that at
on Evidence shall be sufficient under the following
the time she took the witness stand (when she was 14 years
circumstances:
old), the victim, as to her body and facial features, was indeed
a minor.[63]

545
That the carnal knowledge in this case was committed
through force, threat or intimidation need no longer be
belabored upon. [I]n rape committed by close kin, such as the
victims father, step-father, uncle, or the common-law spouse
of her mother, it is not necessary that actual force or
intimidation be employed. Moral influence or ascendancy
takes the place of violence and intimidation.[64]
Penalties
On the penalties imposable in the instant case, the
former Article 335 of the Revised Penal Code, as amended,
punishes the crime of rape with reclusion perpetua. The sixth
paragraph thereof also provides that:
The death penalty shall also be imposed if the crime of rape is
committed with any of the following attendant circumstances:
1. when the victim is under eighteen (18) years of
age and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third
civil degree, or the common law-spouse of the parent of the
victim. (Emphases ours.)
Similarly, the present Article 266-B of the Revised Penal Code
relevantly recites:
546
ART. 266-B. Penalties. - Rape under paragraph 1 of the
next preceding article shall be punished by reclusion perpetua.
xxxx
The death penalty shall also be imposed if the crime of
rape is committed with any of the following
aggravating/qualifying circumstances:
1. When the victim is under eighteen (18) years of
age and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third
civil degree, or the common law spouse of the parent of the
victim. (Emphases ours.)
The Court finds that the circumstances of minority and
relationship qualify the three (3) counts of rape committed by
the accused-appellant. As a special qualifying circumstance of
the crime of rape, the concurrence of the victims minority and
her relationship to the accused must be both alleged and
proven beyond reasonable doubt.[65] In the instant case, the
informations alleged that AAA was less than eighteen (18)
years of age when the incidents of rape occurred and the
accused-appellant is her uncle, a relative by consanguinity
within the third civil degree. The said circumstances were also
admitted by the accused-appellant during the pre-trial
conference of the case and again admitted by him during his
testimony.[66]
In People v. Pepito,[67] the Court explained that [t]he
purpose of entering into a stipulation or admission of facts is
to expedite trial and to relieve the parties and the court, as
well, of the costs of proving facts which will not be disputed
on trial and the truth of which can be ascertained by
reasonable inquiry. These admissions during the pre-trial
conference are worthy of credit. Being mandatory in nature,
the admissions made by appellant therein must be given
weight. Consequently, for the first incident of rape, regardless
of whether the same occurred in 1995 or in 1998, the
imposition of the death penalty is warranted. For the second
and third counts of rape, the imposable penalty is also death.
Nonetheless, a reduction of the above penalty is in order.
The RTC and the Court of Appeals failed to consider in favor of
the accused-appellant the privileged mitigating circumstance
of minority. Although this matter was not among the issues
raised before the Court, we still take cognizance of the same
in accordance with the settled rule that [i]n a criminal case,
an appeal throws open the entire case wide open for review,
and the appellate court can correct errors, though
unassigned, that may be found in the appealed judgment.[68]
547
Pertinently, the first paragraph of Section 7 of Republic Act
No. 9344, otherwise known as the Juvenile Justice and
Welfare Act of 2006, provides for the rule on how to
determine the age of a child in conflict with the law,[69] viz:
SEC. 7. Determination of Age. The child in conflict with
the law shall enjoy the presumption of minority. He/She shall
enjoy all the rights of a child in conflict with the law until
he/she is proven to be eighteen (18) years of age or older. The
age of a child may be determined from the child's birth
certificate, baptismal certificate or any other pertinent
documents. In the absence of these documents, age may be
based on information from the child himself/herself,
testimonies of other persons, the physical appearance of the
child and other relevant evidence. In case of doubt as to the
age of the child, it shall be resolved in his/her favor.
Furthermore, in Sierra v. People,[70] we clarified that, in the
past, the Court deemed sufficient the testimonial evidence
regarding the minority and age of the accused provided the
following conditions concur, namely: (1) the absence of any
other satisfactory evidence such as the birth certificate,
baptismal certificate, or similar documents that would prove
the date of birth of the accused; (2) the presence of testimony
from accused and/or a relative on the age and minority of the
accused at the time of the complained incident without any
objection on the part of the prosecution; and (3) lack of any
contrary evidence showing that the accused's and/or his
relatives' testimonies are untrue.[71]
In the instant case, the accused-appellant testified that he People v. Sarcia[73] further stressed that [w]ith more reason,
was born on February 23, 1982 and that he was only 13 years the Act should apply to [a] case wherein the conviction by the
old when the first incident of rape allegedly happened in lower court is still under review.
1995.[72]Other than his testimony, no other evidence was
presented to prove the date of his birth. However, the records
of this case show neither any objection to the said testimony Thus, in the matter of assigning criminal responsibility,
on the part of the prosecution, nor any contrary evidence to Section 6 of Republic Act No. 9344 is explicit in providing that:
dispute the same. Thus, the RTC and the Court of Appeals
should have appreciated the accused-appellants minority in
ascertaining the appropriate penalty. SEC. 6. Minimum Age of Criminal Responsibility. A
child fifteen (15) years of age or under at the time of the
commission of the offense shall be exempt from criminal
liability. However, the child shall be subjected to an
Although the acts of rape in this case were committed before
intervention program pursuant to Section 20 of the Act.
Republic Act No. 9344 took effect on May 20, 2006, the said
law is still applicable given that Section 68 thereof expressly
states:
A child above fifteen (15) years but below eighteen
(18) years of age shall likewise be exempt from criminal
liability and be subjected to an intervention program, unless
SEC. 68. Children Who Have Been Convicted and are he/she has acted with discernment, in which case, such child
Serving Sentences. Persons who have been convicted and are shall be subjected to the appropriate proceedings in
serving sentence at the time of the effectivity of this Act, and accordance with this Act.
who were below the age of eighteen (18) years at the time of
the commission of the offense for which they were convicted
and are serving sentence, shall likewise benefit from the
The exemption from criminal liability herein
retroactive application of this Act. They shall be entitled to
established does not include exemption from civil liability,
appropriate dispositions provided under this Act and their
which shall be enforced in accordance with existing
sentences shall be adjusted accordingly. They shall be
laws. (Emphases ours.)
immediately released if they are so qualified under this Act or
other applicable law.

As held in Sierra, the above provision effectively modified the

minimum age limit of criminal irresponsibility in paragraphs 2
548
and 3 of the Revised Penal Code, as amended,[74] i.e., from testimony of AAA, which we had already found to be
under nine years of age and above nine years of age and credible. Verily, AAA testified that she at first did not tell
under fifteen (who acted without discernment) - to fifteen anybody about the sexual assault she suffered at the hands of
years old or under and above fifteen but below 18 (who acted the accused-appellant because the latter told her that he
without discernment) in determining exemption from criminal would kill her mother if she did so. That the accused-appellant
liability.[75] had to threaten AAA in an effort to conceal his dastardly acts
only proved that he knew full well that what he did was wrong
Accordingly, for the first count of rape, which in the
and that he was aware of the consequences thereof.
information in Criminal Case No. 2000-01-46 was allegedly
committed in 1995, the testimony of the accused-appellant
sufficiently established that he was only 13 years old at that
Accordant with the second paragraph of Article 68 of the
time. In view of the failure of the prosecution to prove the
Revised Penal Code, as amended, and in conformity with our
exact date and year of the first incident of rape, i.e., whether
ruling in Sarcia, when the offender is a minor under eighteen
the same occurred in 1995 or in 1998 as previously discussed,
(18) years of age, the penalty next lower than that prescribed
any doubt therein should be resolved in favor of the accused,
by law shall be imposed, but always in the proper
it being more beneficial to the latter.[76] The Court, thus,
period. However, for purposes of determining the proper
exempts the accused-appellant from criminal liability for the
penalty because of the privileged mitigating circumstance of
first count of rape pursuant to the first paragraph of Section 6
minority, the penalty of death is still the penalty to be
of Republic Act No. 9344. The accused-appellant,
reckoned with. Thus, for the second and third counts of rape,
nevertheless, remains civilly liable therefor.
the proper penalty imposable upon the accused-appellant
is reclusion perpetua for each count.
For the second and third counts of rape that were committed
in the year 1999, the accused-appellant was already 17 years
Had the trial court correctly appreciated in favor of the
old. We likewise find that in the said instances, the accused-
accused-appellant the circumstance of his minority, the latter
appellant acted with discernment. In Madali v. People,[77] the
would have been entitled to a suspension of sentence for the
Court had the occasion to reiterate that [d]iscernment is that
second and third counts of rape under Section 38 of Republic
mental capacity of a minor to fully appreciate the
Act No. 9344, which reads:
consequences of his unlawful act. Such capacity may be
known and should be determined by taking into consideration
all the facts and circumstances afforded by the records in
SEC. 38. Automatic Suspension of Sentence. Once the
each case. In this case, the fact that the accused-appellant
child who is under eighteen (18) years of age at the time of the
acted with discernment was satisfactorily established by the
549
 commission of the offense is found guilty of the offense
charged, the court shall determine and ascertain any civil
liability which may have resulted from the offense
committed. However, instead of pronouncing the judgment of
conviction, the court shall place the child in conflict with the
law under suspended sentence, without need of
application. Provided, however, That suspension of sentence
shall still be supplied even if the juvenile is already eighteen
years (18) of age or more at the time of the pronouncement of
his/her guilt.
Upon suspension of sentence and after considering the
various circumstances of the child, the court shall impose the
appropriate disposition measures as provided in the Supreme
Court Rule on Juvenile in Conflict with the Law.
of Republic Act No. 9344 is warranted in the instant case, to
wit:
Be that as it may, the suspension of sentence may no longer
be applied in the instant case given that the accused-
appellant is now about 29 years of age and Section 40 of
Republic Act No. 9344 puts a limit to the application of a
suspended sentence, namely, when the child reaches a
maximum age of 21. The said provision states:
SEC. 40. Return of the Child in Conflict with the Law to
Court. If the court finds that the objective of the disposition
measures imposed upon the child in conflict with the law have
not been fulfilled, or if the child in conflict with the law has
willfully failed to comply with the conditions of his/her
disposition or rehabilitation program, the child in conflict with
for the second and third incidents of rape shall not be
550
the law shall be brought before the court for execution of
judgment.
If said child in conflict with the law has reached
eighteen (18) years of age while under suspended sentence,
the court shall determine whether to discharge the child in
accordance with this Act, to order execution of sentence, or to
extend the suspended sentence for a certain specified period
or until the child reaches the maximum age of twenty-one
(21) years. (Emphasis ours.)
Nonetheless, the disposition set forth under Section 51
SEC. 51. Confinement of Convicted Children in
Agricultural Camps and Other Training Facilities. A child in
conflict with the law may after conviction and upon order of
the court, be made to serve his/her sentence, in lieu of
confinement in a regular penal institution, in an agricultural
camp and other training facilities that may be established,
maintained, supervised and controlled by the [Bureau of
Corrections], in coordination with the [Department of Social
Welfare and Development].
Additionally, the civil liability of the accused-appellant
affected by the above disposition and the same shall be
enforced in accordance with law and the pronouncements in
the prevailing jurisprudence.
Civil Liability
The Court recently ruled in People v. Masagca, Jr.[78] that
[c]ivil indemnity is mandatory when rape is found to have
been committed. Based on prevailing jurisprudence, we affirm
the award of P75,000.00 to the rape victim as civil indemnity
for each count. We also explained in Sarcia that [t]he litmus
test x x x in the determination of the civil indemnity is the
heinous character of the crime committed, which would have
warranted the imposition of the death penalty, regardless of
whether the penalty actually imposed is reduced to reclusion
perpetua.[79]The trial courts award of civil indemnity
of P50,000.00 for each count of rape is therefore increased
to P75,000.00 for each of the three (3) counts of rape
committed in the instant case.
Anent the award of moral damages, the same is justified
without need of proof other than the fact of rape because it is
assumed that the victim has suffered moral injuries [from the
experience she underwent].[80] We also increase the trial
courts award of P50,000.00 to P75,000.00 for each of the
three (3) counts of rape herein established in keeping with the
recent case law.[81]
551
Lastly, we affirm the Court of Appeals award of exemplary
damages. As held in People v. Llanas, Jr.,[82] [t]he award of
exemplary damages is also proper not only to deter
outrageous conduct, but also in view of the aggravating
circumstances of minority and relationship surrounding the
commission of the offense, both of which were alleged in the
information and proved during the trial. The appellate courts
award of P25,000.00 as exemplary damages is raised
to P30,000.00 for each of the three (3) counts of rape in
keeping with the current jurisprudence on the matter.[83]
WHEREFORE, in light of the foregoing, the appeal
is DENIED. The Decision dated February 8, 2008 of the Court
of Appeals in CA-G.R. CR.-H.C. No. 00560 is hereby AFFIRMED
with the following MODIFICATIONS:
(1) For the first count of rape herein established, the
accused-appellant Henry Arpon y Juntilla is
hereby EXEMPTED from criminal liability.
(2) For the second and third counts of rape, the accused-
appellant is found GUILTY beyond reasonable doubt of
two (2) counts of QUALIFIED RAPE and is hereby
sentenced to suffer the penalty of reclusion
perpetua for each count.
(3) As to the civil liability, the accused-appellant
is ORDERED to pay AAA for each of the three (3) counts
 of rape P75,000.00 as civil indemnity, P75,000.00 as
moral damages and P30,000.00 as exemplary damages,
plus legal interest on all damages awarded at the legal
rate of 6% from the date of finality of this Decision.
(4) The case is hereby REMANDED to the court of origin for
its appropriate action in accordance with Section 51
of Republic Act No. 9344.
amount of P1,000, and to pay the costs. The crime charged against the
accused is homicide, according to the following information:
That on or about the 6th of May, 1930, in the barrio of Calunod,
municipality of Baliangao, Province of Occidental Misamis, the
accused Donato Bindoy willfully, unlawfully, and feloniously attacked
and with his bolo wounded Emigdio Omamdam, inflicting upon the
latter a serious wound in the chest which caused his instant death, in
violation of article 404 of the Penal Code.
The accused appealed from the judgment of the trial court, and his counsel
in this instance contends that the court erred in finding him guilty beyond a
reasonable doubt, and in convicting him of the crime of homicide.

The record shows that in the afternoon of May 6, 1930, a disturbance arose
in a tuba wineshop in the barrio market of Calunod, municipality of
No costs. Baliangao, Province of Occidental Misamis, started by some of
the tuba drinkers. There were Faustino Pacas (alias Agaton), and his wife
called Tibay. One Donato Bindoy, who was also there, offered some tuba to
Pacas' wife; and as she refused to drink having already done so, Bindoy
SO ORDERED. threatened to injure her if she did not accept. There ensued an interchange
of words between Tibay and Bindoy, and Pacas stepped in to defend his
wife, attempting to take away from Bindoy the bolo he carried. This
occasioned a disturbance which attracted the attention of Emigdio
Omamdam, who, with his family, lived near the market. Emigdio left his
Republic of the Philippines house to see what was happening, while Bindoy and Pacas were struggling
SUPREME COURT for the bolo. In the course of this struggle, Bindoy succeeded in disengaging
Manila himself from Pacas, wrenching the bolo from the latter's hand towards the
left behind the accused, with such violence that the point of the bolo
EN BANC reached Emigdio Omamdam's chest, who was then behind Bindoy.

G.R. No. L-34665 August 28, 1931 There is no evidence that Emigdio took part in the fight between Bindoy and
Pacas. Neither is there any indication that the accused was aware of
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, Emigdio Omamdam's presence in the place, for, according to the testimony
vs. of the witnesses, the latter passed behind the combatants when he left his
DONATO BINDOY, defendant-appellant. house to satisfy his curiosity. There was no disagreement or ill feeling
between Bindoy and Omamdam, on the contrary, it appears they were
nephew and uncle, respectively, and were on good terms with each other.
Florentino Saguin for appellant.
Bindoy did not try to wound Pacas, and instead of wounding him, he hit
Attorney-General Jaranilla for appellee.
Omamdam; he was only defending his possession of the bolo, which Pacas
was trying to wrench away from him, and his conduct was perfectly lawful.
VILLAMOR, J.:
The wound which Omamdam received in the chest, judging by the
The appellant was sentenced by the Court of First Instance of Occidental description given by the sanitary inspector who attended him as he lay
Misamis to the penalty of twelve years and one day of reclusion temporal, dying, tallies with the size of the point of Bindoy's bolo.
with the accessories of law, to indemnify the heirs of the deceased in the
552
There is no doubt that the latter caused the wound which produced Emigdio
Omamdam's death, but the defendant alleges that it was caused
accidentally and without malicious intent.
Pacas and the widow of the deceased, Carmen Angot, testified having seen
the accused stab Omamdam with his bolo. Such testimony is not
incompatible with that of the accused, to the effect that he wounded
Omamdam by accident. The widow testified that she knew of her husband's
wound being caused by Bindoy from his statement to her before his death.
The testimony of the witnesses for the prosecution tends to show that the
accused stabbed Omamdam in the chest with his bolo on that occasion. The
defendant, indeed, in his effort to free himself of Pacas, who was
endeavoring to wrench his bolo from him, hit Omamdam in the chest; but, as
we have stated, there is no evidence to show that he did so deliberately and
with the intention of committing a crime. If, in his struggle with Pacas, the
defendant had attempted to wound his opponent, and instead of doing so,
had wounded Omamdam, he would have had to answer for his act, since
whoever willfully commits a felony or a misdemeanor incurs criminal liability,
although the wrongful act done be different from that which he intended.
(Art. 1 of the Penal Code.) But, as we have said, this is not the case.
The witness for the defense, Gaudencio Cenas, corroborates the defendant
to the effect that Pacas and Bindoy were actually struggling for the
possession of the bolo, and that when the latter let go, the former had pulled
so violently that it flew towards his left side, at the very moment when
Emigdio Omamdam came up, who was therefore hit in the chest, without
Donato's seeing him, because Emigdio had passed behind him. The same
witness adds that he went to see Omamdam at his home later, and asked
him about his wound when he replied: "I think I shall die of this wound." And
then continued: "Please look after my wife when I die: See that she doesn't
starve," adding further: "This wound was an accident. Donato did not aim at
me, nor I at him: It was a mishap." The testimony of this witness was not
contradicted by any rebuttal evidence adduced by the fiscal.
We have searched the record in vain for the motive of this kind, which, had it
existed, would have greatly facilitated the solution of this case. And we
deem it well to repeat what this court said in United States vs. Carlos (15
Phil., 47), to wit:
The attention of prosecuting officers, and especially of provincial
fiscals, directed to the importance of definitely ascertaining and
proving, when possible, the motives which actuated the commission
of a crime under investigation.
553
In many criminal cases one of the most important aids in completing
the proof of the commission of the crime by the accused is the
introduction of evidence disclosing the motives which tempted the
mind of the guilty person to indulge the criminal act.
In view of the evidence before us, we are of opinion and so hold, that the
appellant is entitled to acquittal according to article 8, No. 8, Penal Code.
Wherefore, the judgment appealed from is reversed, and the accused
Donato Bindoy is hereby acquitted with costs de oficio. So ordered.
Avanceña, C.J., Johnson, Street, Malcolm, Romualdez, Villa-Real, and
Imperial, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5418 February 12, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
CECILIO TAÑEDO, defendant-appellant.
O'Brien & De Witt, for appellant.
Office of the Solicitor-General Harvey, for appellee.
MORELAND, J.:
The defendant in this case was accused of the crime of murder committed,
as alleged in the information, as follows:
That on or about the 26th day of January of this year, the said
accused, with the intention of killing Feliciano Sanchez, invited him
to hunt wild chickens, and, upon reaching the forest, with
premeditation shot him in the breast with a shotgun which destroyed
the heart and killed the said Sanchez, and afterwards, in order to
hide the crime, buried the body of the deceased in a well. The
motive is unknown. The premeditation consists in that the accused
had prepared his plans to take the deceased to the forest, there to
kill him, so that no one could see it, and to bury him afterwards
secretly in order that the crime should remain unpunished.
The defendant was found guilty of homicide by the Court of First Instance of
the Province of Tarlac and sentenced to fourteen years eight months and
one day of reclusion temporal, accessories, indemnification and costs. The
defendant appealed.
There is very little dispute about the facts in this case, in fact no dispute at
all as to the important facts. The accused was a landowner. On the morning
of the 26th of January, 1909, he, with Bernardino Tagampa, Casimiro
Pascual, Valeriano Paulillo, and Juan Arellano, went to work on
a malecon or dam on his land. The defendant took with him a shotgun and a
few shells, with the intention to hunt wild chickens after he had set his
laborers at work. He remained with his laborers an hour or so and then went
a short distance away across a stream to see how the alteration which he
had made in the malecon affected the flow of water from the rice filed on the
other side of the stream. He carried his shotgun with him across the stream.
On the other side of the stream he met the deceased, who, with his mother
and uncle, had been living in a small shack for a month or so during the rice-
harvesting season. The accused asked the uncle of the deceased where he
could find a good place in which to hunt wild chickens. The uncle was lying
on the floor in the interior of the shack sick of fever. The deceased, a young
man about 20 years of age, was working at something under a manga tree a
short distance from the shack. Although the accused directed his question to
the uncle inside of the shack, the deceased answered the question and
pointed out in a general way a portion of the forest near the edge of which
stood the shack. There is some contradiction between the testimony of the
accused and the Government witnesses just at this point. The uncle of the
deceased testified that the boy and the accused invited each other mutually
to hunt wild chickens and that the accused accepted the invitation. The
accused, however, testified that he did not invite the deceased to go hunting
with him, neither did the deceased go with him, but that he remained under
the manga tree "trying something." At any rate the accused went into the
forest with his gun. What took place there is unknown to anybody except the
accused. Upon that subject he testified as follows:
And after Feliciano Sanchez pointed out that place to me, that place
where the wild chickens were to be found, I proceeded to hunt,
because, in the first place, if I could kill some wild chickens we would
have something to eat on that day. So when I arrived at that place I
saw a wild chickens and I shot him. And after I shot that chicken I
heard a human cry. I picked up the chicken and went near the place
where I heard the noise, and after I saw that I had wounded a man I
went back toward the malecon, where my companions were
working, running back, and when I arrived there I left my shotgun
behind or by a tree not far from where my companions were
working; and I called Bernardino Tagampa to tell him about the
occurrence, and to him I told of that occurence because he is my
554
friend and besides that he was a relative of the deceased, and when
Tagampa heard of this he and myself went together to see the dead
body.
Only one shot was heard that morning and a chicken was killed by gunshot
wound. Chicken feathers were found in considerable qualities at the point
where the chicken was shot and where the accident occurred. The
defendant within a few minutes after the accident went out of the woods to
the malecon where he had left his laborers at work, carrying the dead
chicken with him. The accused called Bernardino Tagampa, on of the
laborers, to go with him and they disappeared for some time. Tagampa says
that they went a little way toward the woods and came back. The accused
says that they went to the place where the body of the deceased lay and
removed it to a place in the cogon grass where it would not be easily
observed. It is certain, however, that the body was concealed in the cogon
grass. During the afternoon Tagampa left the malecon, where his fellow
laborers were working, probably to hunt for a place in which to hide the
body. The rest of the laborers saw the witness Yumul take the chicken
which had been killed by the accused. He delivered it to the wife of the
accused, who testified that she received the chicken from Yumul and that it
had been killed by a gunshot wound. That evening the accused and
Tagampa went together to dispose of the body finally. They took it from the
cogon grass where it lay concealed and carried it about seventeen or
eighteen hundred meters from the place where it had originally fallen, and
buried it in an old well, covering it with straw and earth and burning straw on
top of the well for the purpose of concealing it. Tagampa said that he helped
the accused dispose of the body because he was afraid of him, although he
admits that the accused in no way threatened or sought to compel him to do
so. The defendant prior to the trial denied all knowledge of the death of the
deceased or the whereabouts of the body. On the trial, however, he
confessed his participation in the death of the deceased and told the story
substantially as above.
So far as can be ascertained from the evidence the prior relations between
the accused and the deceased had been normal. The deceased was a
tenant on land belonging to a relative of the accused. There was no enmity
and no unpleasant relations between them. No attempt was made to show
any. There appears to have been no motive whatever for the commission of
the crime. The Government has not attempted to show any. The only
possible reason that the accused could have for killing the deceased would
be found in the fact of a sudden quarrel between them during the hunt. That
idea is wholly negative by the fact that the chicken and the man were shot at
the same time, there having been only one shot fired.
Article 1 of the Penal Code says:
 Crimes or misdemeanors are voluntary acts and omissions punished
by law.
Acts and omissions punished by law are always presumed to be
voluntary unless the contrary shall appear.
defendant must show that it was an accident by a preponderance of
the testimony, and instruction B in the Cross case was properly held
to be erroneous.
In 3 L. R. A., N. S., page 1163, it is said:

Article 8, subdivision 8, reads as follows:
He who, while performing a legal act with due care, causes some
injury by mere accident without liability or intention of causing it.
Section 57 of the Code of Criminal Procedure is as follows:
Evidence of misadventure gives rise to an important issue in a
prosecution for homicide, which must be submitted to the jury. And
since a plea of misadventure is a denial of criminal intent (or its
equivalent) which constitutes an essential element in criminal
homicide, to warrant a conviction it must be negative by the
prosecution beyond a reasonable doubt.

A defendant in a criminal action shall be presumed to be innocent In support of such contention the author cites a number of cases.
until the contrary is proved, and in case of a reasonable doubt that
his guilt is satisfactorily shown he shall be entitled to an acquittal. We are of the opinion that the evidence is insufficient to support the
judgment of conviction.
The American doctrine is substantially the same. It is uniformly held that if
life is taken by misfortune or accident while in the performance of a lawful The judgment of conviction is, therefore, reversed, the defendant acquitted,
act executed with due care and without intention of doing harm, there is no and his discharge from custody ordered, costs de oficio. So ordered.
criminal liability. (Tidwell vs. State, 70 Ala., 33; State vs. Benham, 23 Ia.,
154, 92 Am. Dec., 417; Bertrong vs. State, 2 Tex. Ap., 160; Arellano, C.J., Torres, Mapa and Johnson, JJ., concur.
Williamson vs. State, 2 Ohio C. C., 292; U. S. vs. Meagher, 37 Fed. Rep.,
875; U. S. vs. Castro, Fed. Cas., 14752; State vs. Legg, 3 L. R. A., N. S.,
1152.)

In this case there is absolutely no evidence of negligence upon the part of Separate Opinions
the accused. Neither is there any question that he was engaged in the
commission of a lawful act when the accident occurred. Neither is there any
CARSON, J., concurring:
evidence of the intention of the accused to cause the death of the deceased.
The only thing in the case at all suspicious upon the part of the defendant
are his concealment and denial. I concur.

In the case of the State vs. Legg, above referred to, it is said (p.1165): I am in entire agreement with the conclusions of the majority in this case. I
think it proper to estate, nevertheless, that the doctrine laid down in the
somewhat loosely worded West Virginia case of State vs. Legg, cited in the
Where accidental killing is relied upon as a defense, the accused is
majority opinion, and in the citation from 3 L. R. A., N. S., can not be said to
not required to prove such a defense by a preponderance of the
be in conformity with the general doctrine in this jurisdiction, as laid down in
evidence, because there is a denial of intentional killing, and the
the decisions of this court, without considerable modification and restriction
burden is upon the State to show that it was intentional, and if, from
limiting its scope to cases wherein it is properly applicable.
a consideration of all the evidence, both that for the State and the
prisoner, there is a reasonable doubt as to whether or not the killing
was accidental or intentional, the jury should acquit. . . . But where THIRD DIVISION
accidental killing is relied upon, the prisoner admits the killing but
denies that it was intentional. Therefore, the State must show that it
was intentional, and it is clearly error to instruct the jury that the
555
 [G.R. No. 150647. September 29, 2004]
ROWENO POMOY, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
PANGANIBAN, J.:
Well-established is the principle that the factual findings of the
trial court, when affirmed by the Court of Appeals, are binding on
the highest court of the land. However, when facts are
misinterpreted and the innocence of the accused depends on a
proper appreciation of the factual conclusions, the Supreme Court
may conduct a review thereof. In the present case, a careful
reexamination convinces this Court that an accident caused the
victims death. At the very least, the testimonies of the credible
witnesses create a reasonable doubt on appellants guilt. Hence,
the Court must uphold the constitutional presumption of
innocence.
The Case
Before us is a Petition for Review[1] under Rule 45 of the Rules
of Court, seeking to set aside the February 28, 2001 Decision[2] and
the October 30, 2001 Resolution[3] of the Court of Appeals (CA) in
CAGR CR No. 18759. The CA affirmed, with modifications, the
March 8, 1995 judgment[4] of the Regional Trial Court
(RTC)[5] of Iloilo City (Branch 25) in Criminal Case No. 36921,
finding Roweno Pomoy guilty of the crime of homicide. The
assailed CA Decision disposed as follows:
WHEREFORE, premises considered, MODIFIED as to penalty
in the sense that the [Petitioner] ROWENO POMOY is sentenced
to suffer an indeterminate prison term of six (6) years, four (4)
months and ten (10) days of prision mayor minimum, as
minimum, to fourteen (14) years eight (8) months and twenty
556
(20) days of reclusion temporal medium, as maximum, the
decision appealed from is hereby AFFIRMED in all other
respects.
[6]
The challenged CA Resolution denied petitioners Motion for
Reconsideration.
Petitioner was charged in an Information worded thus:
That on or about the 4th day of January 1990, in the Municipality
of Sara, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
armed with his .45 service pistol, with deliberate intent and
decided purpose to kill, and without any justifiable cause or
motive, did then and there willfully, unlawfully and feloniously
assault, attack and shoot one TOMAS BALBOA with the service
pistol he was then provided, inflicting upon the latter gunshot
wounds on the vital parts of his body, which directly caused the
death of said victim thereafter.
[7]
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) presented
respondents version of the facts as follows:
Tomas Balboa was a master teacher of the Concepcion College
of Science and Fisheries in Concepcion, Iloilo.
On January 4, 1990, about 7:30 in the morning, some policemen
arrived at the Concepcion College to arrest Balboa, allegedly in
connection with a robbery which took place in the municipality
in December 1989. With the arrest effected, Balboa and the
policemen passed by the Concepcion Elementary School where
his wife, Jessica, was in a get-together party with other School
Administrators. When his wife asked him, Why will you be
arrested? [H]e answered [Even I] do not know why I am
arrested. That is why I am even going there in order to find out
the reason for my arrest.
Balboa was taken to the Headquarters of the already defunct
321st Philippine Constabulary Company at Camp Jalandoni,
Sara, Iloilo. He was detained in the jail thereat, along with Edgar
Samudio, another suspect in the robbery case.
Later that day, about a little past 2 oclock in the afternoon,
petitioner, who is a police sergeant, went near the door of the jail
where Balboa was detained and directed the latter to come out,
purportedly for tactical interrogation at the investigation room, as
he told Balboa: Lets go to the investigation room. The
investigation room is at the main building of the compound
where the jail is located. The jail guard on duty, Nicostrado
Estepar, opened the jail door and walked towards the
investigation room.
At that time, petitioner had a gun, a .45 caliber pistol, tucked in a
holster which was hanging by the side of his belt. The gun was
fully embedded in its holster, with only the handle of the gun
protruding from the holster.
When petitioner and Balboa reached the main building and were
near the investigation room, two (2) gunshots were heard. When
the source of the shots was verified, petitioner was seen still
holding a .45 caliber pistol, facing Balboa, who was lying in a
pool of blood, about two (2) feet away. When the Commanding
Officer of the Headquarters arrived, he disarmed petitioner and
directed that Balboa be brought to the hospital. Dr. Palma (first
name not provided) happened to be at the crime scene as he was
visiting his brother in the Philippine Constabulary. When Dr.
Palma examined Balboa, he (Dr. Palma) said that it was
unnecessary to bring Balboa to the hospital for he was dead.
557
Upon the request of Mrs. Jessica Balboa, the wife of the
deceased, Dr. Ricardo Jabonete, the medico-legal officer of the
National Bureau of Investigation, Region VI, Iloilo City,
conducted an autopsy on the remains of Tomas Balboa. The
following were his findings:
Pallor, integumens and nailbeds.
Wound, gunshot: (1) ENTRANCE, downwards and medially,
edges, modified by sutures, surrounded by abrasion collar, 0.6
cm. In its chest, left side, 10.0 cms. from anterior midline, 121.0
cms. From left heel, directed medially backwards from left to
right, penetrating chest wall thru 5th intercostals space into
thoracic cavity, perforating thru and thru, upper lobe, left lung,
lacerating left ventricular wall causing punched out fracture,
8ththoracic vertebra and make an EXIT, stallate in shape, 1.0 x
0.8 cm. Edges, modified by sutures, back, right side, 8.0 cms.
From posterior midline, 117.0 cms. From right heel (2)
ENTRANCE, ovaloid, oriented medially downwards, edges
sutured, 0.7 cm. on its widest portion, at infero-medial border,
hypochondriac region, left side, 4.0 cms. From anterior midline,
105.0 cms. From left heel, directed backwards, laterally wall into
penetrating abdominal cavity, perforating thru and thru, stomach,
head of the pancreas and mesentery, make an exit, ovalid, 1.0 x
0.8 cm., oriented medially upwards, edges, sutured, back, left
side, level of 9th intercostal space, 4.5 cms. From posterior
midline, 110.0 cms. From left heel. x x x.
CAUSE OF DEATH: Hemorrhage, massive secondary to
gunshot wounds on chest and abdomen.
REMARKS: Body previously embalmed and autopsied.
Dr. Jaboneta testified that the two (2) wounds he found on x x x
Balboas body were gunshot wounds. The entrance of [W]ound
No. 1 was to the left side of the chest about the left nipple and
exited to the right side of the back. Its trajectory was backwards
then downwards from left to right. As to the possible position of
the assailant, Dr. Jaboneta opined that the nozzle of the gun was
probably in front of the victim and was more to the left side, and
the gun must have been a little bit higher than the entrance
wound. Wound No. 2 was located immediately below the arch of
the ribs, left side. Its direction was backwards and laterally
upwards. Dr. Jaboneta estimated that when it was inflicted, the
assailant must have pointed the guns nozzle to the right side front
of the victim. The distance between the entrance points of
wounds No. 1 and No. 2 was found to be about 16.0
centimeters. [8]
Version of the Defense
The Petition adopted the narration of facts in the assailed CA
Decision, which in turn culled them from the trial court. The RTC
summarized the testimonies of Defense Witnesses Erna Basa, the
lone eyewitness to the incident; Eden Legaspi; Dr. Salvador Mallo
Jr.; and petitioner himself, as follows:
Erna Basa:
x x x [O]n January 4, 1990, she was working in their office in the
camp up to the afternoon; at about past 2 oclock that afternoon
while working on the backlogs, she heard some noise and
exchange of words which were not clear, but it seemed there was
growing trouble; she opened the door to verify and saw Roweno
Pomoy and Tomas Balboa grappling for the possession of the
gun; she was inside the room and one meter away from the door;
Pomoy and Balboa while grappling were two to three meters
away from the door; the grappling happened so fast and the gun
of Pomoy was suddenly pulled out from its holster and then there
was explosion; she was not certain who pulled the gun. x x x.
Eden Legaspi:
558
x x x [A]s early as 1:30 oclock in the afternoon of January 4,
1990 she was inside the investigation room of the PC at Camp
Jalandoni, Sara, Iloilo; at about 2 oclock that same afternoon
while there inside, she heard a commotion outside and she
remained seated on the bench; when the commotion started they
were seated on the bench and after the commotion that woman
soldier (referring to Erna Basa) stood up and opened the door and
she saw two persons grappling for the possession of a gun and
immediately two successive shots rang out; she did not leave the
place where she was seated but she just stood up; after the shots,
one of the two men fall down x x x.
Accused-petitioner Roweno Pomoy:
He is 30 years old and a PNP member of the Iloilo Provincial
Mobile Force Company then attached to the defunct 321st PC
Company; he was one of the investigators of their outfit; about 2
oclock or past that time of January 4, 1990 he got Tomas Balboa
from their stockade for tactical interrogation; as he was already
holding the door knob of their investigation room and about to
open and enter it, all of a sudden he saw Tomas Balboa approach
him and take hold or grab the handle of his gun; Tomas Balboa
was a suspect in a robbery case who was apprehended by the
police of Concepcion and then turned over to them (PC) and
placed in their stockade; he asked the sergeant of the guard to let
Balboa out of the stockade for interrogation; from the stockade
with Balboa walking with him, he had his .45 caliber pistol
placed in his holster attached to his belt on his waist; then as he
was holding the doorknob with his right hand to open the door,
the victim, who was two meters away from him, suddenly
approached him and grabbed his gun, but all of a sudden he held
the handle of his gun with his left hand; he released his right
hand from the doorknob and, with that right hand, he held the
handle of his gun; Tomas Balboa was not able to take actual hold
of the gun because of his efforts in preventing him (Balboa) from
holding the handle of his gun; he used his left hand to parry the
move of Balboa; after he held the handle of his gun with his right
hand, in a matter of seconds, he felt somebody was holding his
right hand; he and Balboa grappled and in two or three seconds
the gun was drawn from its holster as both of them held the gun;
more grappling followed and five seconds after the gun was
taken from its holster it fired, the victim was to his right side
when the attempt to grab his gun began and was still to his right
when the gun was drawn from its holster until it fired, as they
were still grappling or wrestling; his gun was already loaded in
its chamber and cocked when he left his house, and it was locked
when it fired; during the grappling he used his left hand to
prevent Balboa from holding his gun, while the victim used his
right hand in trying to reach the gun; after the gun fired, they
were separated from each other and Balboa fell; he is taller than
Balboa though the latter was bigger in build; he cannot say nor
determine who of them was stronger; after Balboa fell, Sgt. Alag
shouted saying stop that and he saw Sgt. Alag approaching;
sometime after, Capt. Rolando Maclang, their commanding
officer, came, got his gun, and said that the case be investigated
as to what really happened. He said that when his gun was put in
its holster only its handle protrudes or comes out from it.
Upon cross-examination, he said that Balboa was a suspect in a
robbery case that happened during the first week of December,
1989; he was the one who filed that case in the town of San
Dionisio and that case involves other persons who were also
detained; before January 4, 1990 he had also the chance to invite
and interrogate Balboa but who denied any robbery case; x x x
[I]t was after he took his lunch that day when Capt. Maclang
called him to conduct the interrogation; when he took Balboa
from the stockade he did not tell him that he (Balboa) was to be
investigated in the investigation room which was housed in the
main building which is fifty meters, more or less, from the
stockade, likewise houses the administrative office, the office of
the commanding officer, officer of the operations division and
that of the signal division; his gun was in its holster when the
559
victim tried to grab it (gun); from the time he sensed that the
victim tried to grab his gun, he locked the victim; the hand of the
victim was on top of his hand and he felt the victim was
attempting to get his gun; that the entire handle of his gun was
exposed when placed inside its holster; he cannot tell whether the
victim, while struggling with him, was able to hold any portion
of his gun from the tip of its barrel to the point where its hammer
is located; during the incident his gun was fully loaded and
cocked; Sgt. Alag did not approach, but just viewed them and
probably reported the incident to their commanding officer; he
was not able to talk to Sgt. Alag as he (Pomoy) was not in his
right sense; when his commanding officer came some five to ten
minutes later and took away his gun he did not tell him anything.
Dr. Salvador Mallo Jr.
He is the Rural Health Physician of Sara who conducted the
autopsy on the cadaver of Tomas Balboa that afternoon of
January 4, 1990; in his autopsy findings respecting which he
made an autopsy report he said he found two entrance wounds on
the victim, the first on the left chest with trajectory medially
downward, while the second one is on the left side of the
stomach with trajectory somewhat going upward; at the same
time of his examination he saw this victim to be wearing a light-
colored T-shirt and a jacket; other than the T-shirt worn by the
victim, he did not see or find any powder burns and marks and
that those dotted marks in the T-shirt were believed by him to be
powder burns as they look like one; he also found a deformed
slug in the pocket of the jacket of the victim.
[9]
Ruling of the Court of Appeals
The CA anchored its Decision on the following factual findings:
1) the victim was not successful in his attempts to grab the gun,
since petitioner had been in control of the weapon when the shots
were fired; 2) the gun had been locked prior to the alleged
grabbing incident and immediately before it went off; it was
petitioner who released the safety lock before he deliberately fired
the fatal shots; and 3) the location of the wounds found on the
body of the deceased did not support the assertion of petitioner
that there had been a grappling for the gun.
To the appellate court, all the foregoing facts discredited the
claim of petitioner that the death of Balboa resulted from an
accident. Citing People v. Reyes,[10] the CA maintained that a
revolver is not prone to accidental firing if it were simply handed
over to the deceased as appellant claims because of the nature of
its mechanism, unless it was already first cocked and pressure
was exerted on the trigger in the process of allegedly handing it
over. If it were uncocked, then considerable pressure had to be
applied on the trigger to fire the revolver. Either way, the shooting
of the deceased must have been intentional because pressure on
the trigger was necessary to make the gun fire.[11]
Moreover, the appellate court obviously concurred with this
observation of the OSG:
[Petitioners] theory of accident would have been easier to believe
had the victim been shot only once. In this case, however,
[petitioner] shot the victim not only once but twice, thereby
establishing [petitioners] determined effort to kill the victim. By
any stretch of the imagination, even assuming without admitting
that the first shot was accidental, then it should not have been
followed by another shot on another vital part of the body. The
fact that [petitioner] shot the victim two (2) times and was hit on
two different and distant parts of the body, inflicted from two
different locations or angles, means that there was an intent to
cause the victims death, contrary to [petitioners] pretensions of
the alleged accidental firing. It is an oft-repeated principle that
the location, number and gravity of the wounds inflicted on the
victim have a more revealing tale of what actually happened
during the incident. x x x.[12]
560
Furthermore, the CA debunked the alternative plea of self-
defense. It held that petitioner had miserably failed to prove the
attendance of unlawful aggression, an indispensable element of
this justifying circumstance.
While substantially affirming the factual findings of the RTC,
the CA disagreed with the conclusion of the trial court that the
aggravating circumstance of abuse of public position had attended
the commission of the crime. Accordingly, the penalty imposed by
the RTC was modified by the appellate court in this manner:
x x x [F]or public position to be appreciated as an aggravating
circumstance, the public official must use his influence, prestige
and ascendancy which his office gives him in realizing his
purpose. If the accused could have perpetrated the crime without
occupying his position, then there is no abuse of public position.
(People vs. Joyno, 304 SCRA 655, 670). In the instant case, there
is no showing that the [petitioner] had a premeditated plan to kill
the victim when the former fetched the latter from the stockade,
thus, it cannot be concluded that the public position of the
[petitioner] facilitated the commission of the crime. Therefore,
the trial courts finding that the said aggravating circumstance that
[petitioner] took advantage of his public position to commit the
crime cannot be sustained. Hence, there being no aggravating and
no mitigating circumstance proved, the maximum of the penalty
shall be taken from the medium period of reclusion temporal, a
penalty imposable for the crime of homicide. x x x. [13]
Hence, this Petition.[14]
Issues
In his Memorandum, petitioner submitted the following issues
for the Courts consideration:
I. The Court of Appeals committed serious and reversible error
in affirming petitioners conviction despite the insufficiency of
the prosecutions evidence to convict the petitioner, in
 contrast to petitioners overwhelming evidence to support his
theory/defense of accident.
II. The Court of Appeals committed grave and reversible error in
affirming the conviction of the petitioner on a manifestly
mistaken inference that when the gun fired, the petitioner
was in full control of the handle of the gun, because what the
testimonies of disinterested witnesses and the petitioner
reveal was that the gun fired while petitioner and Balboa
were both holding the gun in forceful efforts to wrest the gun
from each other.
III. The Court of Appeals gravely erred in affirming the solicitor
generals observation that the fact that petitioner shot the
victim twice establishes petitioners determined effort to kill
the victim.
IV. The appellate court committed serious misapprehension of
the evidence presented when it ruled that the trajectory of
the wounds was front-to-back belying the allegation of
petitioner that he and the victim were side-by-side each other
when the grappling ensued.
V. The Court of Appeals failed to discern the real import of
petitioners reaction to the incident when it stated that the
dumbfounded reaction of petitioner after the incident strongly
argues against his claim of accidental shooting.
VI. The appellate court committed grave error when it
disregarded motive or lack of it in determining the existence
of voluntariness and intent on the part of petitioner to shoot
at the victim when the same was put in serious doubt by the
evidence presented.
VII. The Court of Appeals was mistaken in ruling that the
defense of accident and self-defense are inconsistent.
VIII. The Court of Appeals obviously erred in the imposition of
the penalties and damages.[15]
In sum, the foregoing issues can be narrowed down to
two: First, whether the shooting of Tomas Balboa was the result of
an accident; and second, whether petitioner was able to prove
self-defense.
The Courts Ruling
561
The Petition is meritorious.
First Issue:
Accidental Shooting
Timeless is the legal adage that the factual findings of the trial
court, when affirmed by the appellate court, are conclusive.[16] Both
courts possess time-honored expertise in the field of fact
finding.But where some facts are misinterpreted or some details
overlooked, the Supreme Court may overturn the erroneous
conclusions drawn by the courts a quo. Where, as in this case, the
facts in dispute are crucial to the question of innocence or guilt of
the accused, a careful factual reexamination is imperative.
Accident is an exempting circumstance under Article 12 of the
Revised Penal Code:
Article 12. Circumstances which exempt from criminal liability.
The following are exempt from criminal liability:
xxxxxxxxx
4. Any person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intent of
causing it.
Exemption from criminal liability proceeds from a finding that
the harm to the victim was not due to the fault or negligence of the
accused, but to circumstances that could not have been foreseen
or controlled.[17] Thus, in determining whether an accident attended
the incident, courts must take into account the dual standards of
lack of intent to kill and absence of fault or negligence. This
determination inevitably brings to the fore the main question in the
present case: was petitioner in control of the .45 caliber pistol at
the very moment the shots were fired?
Petitioner Not in Control
of the Gun When It Fired
The records show that, other than petitioner himself, it was Erna
Basa who witnessed the incident firsthand. Her account,
 narrated during cross-examination, detailed the events of
that fateful afternoon of January 4, 1990 as follows:
ATTY. TEODOSIO:
Q. You said that while you were inside the investigation room
you heard a commotion. That commotion which you heard,
did you hear any shouting as part of that commotion which
you heard?
A. Moderately there was shouting and their dialogue was not
clear. It could not be understood.
Q. Did you hear any voices as part of that commotion?
A. No, sir.
Q. From the time you entered the investigation room you did not
hear any voice while you were inside the investigation room
as part of that commotion?
A. There was no loud voice and their conversation could not be
clarified. They were talking somewhat like murmuring or in
a low voice but there was a sort of trouble in their talks.
COURT:
Q. Was there a sort of an exchange of words in their
conversation?
A. Yes, sir.
xxxxxxxxx
Q. When you opened the door, you saw Sgt. Pomoy and Mr.
Balboa the deceased in this case? Am I correct?
A. Yes, sir.
Q. And when you saw Sgt. Pomoy was he holding a gun?
A. Not yet, the gun was still here. (Witness illustrating by
pointing to her side) and I saw both of them grappling for
that gun.
Q. Where was the gun at that time?
A. The gun was in its holster. (Witness illustrating by pointing to
[her] side.)
562
Q. When you demonstrated you were according to you saw the
hands holding the gun. It was Sgt. Pomoy who was holding
the gun with his right hand?
A. I saw two hands on the handle of the gun in its holster,
the hand of Sir Balboa and Sgt. Pomoy.
COURT:
Q. At that precise moment the gun was still in its holster?
A. When I took a look the gun was still in its holster with both
hands grappling for the possession of the gun.
Q. How many hands did you see?
A. Two.
Q. One hand of Sgt. Pomoy and one hand is that of the
victim?
A. Yes, sir.
COURT:
Proceed.
ATTY TEODOSIO:
Q. Which hand of Sgt. Pomoy did you see holding the gun?
A. Right hand of Sgt. Pomoy.
Q. And when you see that right hand of Sgt. Pomoy, was it
holding the gun?
A. The right hand of Sgt. Pomoy was here on the gun and
Sir Balboas hand was also there. Both of them were
holding the gun.
Q. Which part of the gun was the right hand of Sgt. Pomoy
holding?
A. The handle.
Q. And was he facing Tomas Balboa when he was holding the
gun with his right hand?
A. At first they were not directly facing each other.
Q. So later, they were facing each other?
A. They were not directly facing each other. Their position
did not remain steady as they were grappling for the
possession of the gun force against force.
COURT:
Q. What was the position of the victim when the shots were
fired?
A. When I saw them they were already facing each other.
Q. What was the distance?
A. Very close to each other.
Q. How close?
A. Very near each other.
Q. Could it be a distance of within one (1) foot?
A. Not exactly. They were close to each other in such a manner
that their bodies would touch each other.
Q. So the distance is less than one (1) foot when the gun fired?
A. One (1) foot or less when the explosions were heard.
Q. And they were directly facing each other?
A. Yes, sir.
COURT:
Proceed.
Q. Were you able to see how the gun was taken out from its
holster?
A. While they were grappling for the possession of the gun,
gradually the gun was released from its holster and
then there was an explosion.
Q. And when the gun fired the gun was on Tomas Balboa?
A. I could not see towards whom the nozzle of the gun was
when it fired because they were grappling for the
possession of the gun.
Q. Did you see when the gun fired when they were grappling for
its possession?
563
A. Yes sir, I actually saw the explosion. It came from that very
gun.
Q. Did you see the gun fired when it fired for two times?
A. Yes, sir.
Q. Did you see the barrel of the gun when the gun fired?
A. I could not really conclude towards whom the barrel of
the gun was pointed to because the gun was turning.
xxxxxxxxx
Q. Could you tell the court who was holding the gun when the
gun fired?
A. When the gun exploded, the gun was already in the
possession of Sgt. Pomoy. He was the one holding the
gun.
Q. After the gun went off, you saw the gun was already in the
hand of Sgt. Pomoy?
A. Yes, sir.
Q. How soon after the gun went off when you saw the gun in
the hand of Sgt. Pomoy?
A. After Balboa had fallen and after they had separated
themselves with each other, it was then that I saw Sgt.
Pomoy holding the gun.
COURT:
Proceed.
ATTY. TEODOSIO:
Q. When the gun was taken out from its holster, Sgt. Pomoy
was the one holding the handle of the gun? Am I correct?
A. Both of them were holding the handle of the gun.
Q. So when the gun was still in its holster, two of them were
holding the gun?
A. Yes sir, they were actually holding the gun, Sgt. Pomoy and
Sir Balboa.
Q. It was the right hand of Sgt. Pomoy who was holding the
handle of the gun as you testified?
A. Yes, sir.
Q. Which hand of Balboa was holding the handle of the gun?
A. Left hand.
Q. At the time Balboa was holding the handle of the gun with his
left hand, was he in front of Sgt. Pomoy?
A. They had a sort of having their sides towards each
other. Pomoys right and Balboas left sides [were] towards
each other. They were side by side at a closer distance
towards each other.
xxxxxxxxx
Q. It was actually Sgt. Pomoy who was holding the handle of
the gun during that time?
A. When I looked out it was when they were grappling for
the possession of the gun and the right hand of Sgt.
Pomoy was holding the handle of the gun.
Q. When you saw them did you see what position of the handle
of the gun was being held by Tomas Balboa? The rear
portion of the handle of the gun or the portion near the
trigger?
A. When I looked at them it was the hand of Sgt. Pomoy
holding the handle of the gun with his right hand with
the hand of Sir Balboa over the hand of Pomoy, the
same hand holding the gun.
Q. It was in that position when the gun was removed from its
holster?
A. When the gun pulled out from its holster, I was not able
to notice clearly anymore whose hand was holding the
gun when I saw both their hands were holding the gun.
Q. When you said this in [the] vernacular, Daw duha na sila
nagakapot, what you really mean?
A. Both of them were holding the gun.
Q. But Sgt. Pomoy still holding the handle of the gun?
A. Still both of them were holding the handle of the gun.
564
Q. With the hand of Balboa still on the top of the hand of Sgt.
Pomoy as what you have previously said when the gun was
in the holster of Sgt. Pomoy?
A. When the gun was pulled from its holster, I saw that Sgt.
Pomoys right hand was still on the handle of the gun
with the left hand of Sir Balboa over his right hand of
Sgt. Pomoy, like this(witness illustrating by showing his
right hand with her left hand over her right hand as if
holding something. The thumb of the left hand is somewhat
over the index finger of the right hand.)
COURT:
Which hand of the victim was used by him when the gun was
already pulled out form its holster and while the accused
was holding the handle of the gun?
A. Left hand.
Q. So, he was still using the same left hand in holding a portion
of the handle of the gun up to the time when the gun was
pulled out from its holster?
A. Yes sir, the same left hand and that of Pomoy his right hand
because the left hand of Pomoy was used by him in
parrying the right hand of Sir Balboa which is about to grab
the handle of the gun.
COURT:
Q. So in the process of grappling he was using his left hand in
pushing the victim away from him?
A. Yes, sir.
Q. What about the right hand of the victim, what was he doing
with his right hand?
A. The victim was trying to reach the gun with his right
hand and Pomoy was using his left hand to protect the
victim from reaching the gun with his right hand.
COURT:
Proceed.
ATTY. TEODOSIO:
Q. Did you say a while ago that Mr. Balboa was able to hold
the barrel of the gun of Sgt. Pomoy?
 A. Yes, sir.
Q. And that was at the time before the shots were fired?
A. Yes, he was able to hold the tip of the barrel of the gun using
his right hand.
COURT:
Q. That was before the gun fired?
A. Yes, sir.[18]
The foregoing account demonstrates that petitioner did not
have control of the gun during the scuffle. The deceased
persistently attempted to wrest the weapon from him, while he
resolutely tried to thwart those attempts. That the hands of both
petitioner and the victim were all over the weapon was
categorically asserted by the eyewitness. In the course of
grappling for the gun, both hands of petitioner were fully engaged -
- his right hand was trying to maintain possession of the weapon,
while his left was warding off the victim. It would be difficult to
imagine how, under such circumstances, petitioner would coolly
and effectively be able to release the safety lock of the gun and
deliberately aim and fire it at the victim.
It would therefore appear that there was no firm factual basis
for the following declaration of the appellate court: [Petitioner]
admitted that his right hand was holding the handle of the gun
while the left hand of the victim was over his right hand when the
gun was fired. This declaration would safely lead us to the
conclusion that when the gun went off herein [petitioner] was in full
control of the gun.[19]
Release of the Guns Safety Lock and
Firing of the Gun Both Accidental
Petitioner testified that the .45 caliber service pistol was
equipped with a safety lock that, unless released, would prevent
the firing of the gun. Despite this safety feature, however, the
evidence showed that the weapon fired and hit the victim -- not just
once, but twice. To the appellate court, this fact could only mean
that petitioner had deliberately unlocked the gun and shot at the
victim. This conclusion appears to be non sequitur.
565
It is undisputed that both petitioner and the victim grappled for
possession of the gun. This frenzied grappling for the weapon --
though brief, having been finished in a matter of seconds -- was
fierce and vicious. The eyewitness account amply illustrated the
logical conclusion that could not be dismissed: that in the course of
the scuffle, the safety lock could have been accidentally released
and the shots accidentally fired.
That there was not just one but two shots fired does not
necessarily and conclusively negate the claim that the shooting
was accidental, as the same circumstance can easily be attributed
to the mechanism of the .45 caliber service gun. Petitioner, in his
technical description of the weapon in question, explained how the
disputed second shot may have been brought about:
x x x Petitioner also testified on cross-examination that a caliber
.45 semi-automatic pistol, when fired, immediately slides
backward throwing away the empty shell and returns
immediately carrying again a live bullet in its chamber. Thus, the
gun can, as it did, fire in succession. Verily, the location of, and
distance between the wounds and the trajectories of the bullets
jibe perfectly with the claim of the petitioner: the trajectory of the
first shot going downward from left to right thus pushing Balboas
upper body, tilting it to the left while Balboa was still clutching
petitioners hand over the gun; the second shot hitting him in the
stomach with the bullet going upward of Balboas body as he was
falling down and releasing his hold on petitioners hand x x x. [20]
Thus, the appellate courts reliance on People v. Reyes[21] was
misplaced. In that case, the Court disbelieved the accused who
described how his gun had exploded while he was simply handing
it over to the victim. Here, no similar claim is being made;
petitioner has consistently maintained that the gun accidentally
fired in the course of his struggle with the victim. More significantly,
the present case involves a semi-automatic pistol, the mechanism
of which is very different from that of a revolver, the gun used
in Reyes.[22] Unlike a revolver, a semi-automatic pistol, as
sufficiently described by petitioner, is prone to accidental firing
when possession thereof becomes the object of a struggle.
Alleged Grappling Not Negated
by Frontal Location of Wounds
On the basis of the findings of Dr. Jaboneta showing that the
wounds of the deceased were all frontal, the appellate court
rejected petitioners claim that a grappling for the weapon ever
occurred.It held that if there was indeed a grappling between the
two, and that they had been side [by] side x x x each other, the
wounds thus inflicted could not have had a front-to-back trajectory
which would lead to an inference that the victim was shot frontally,
as observed by Dr. Jaboneta.[23]
Ordinarily, the location of gunshot wounds is indicative of the
positions of the parties at the precise moment when the gun was
fired. Their positions would in turn be relevant to a determination of
the existence of variables such as treachery, aggression and so
on.
In the factual context of the present case, however, the
location of the wounds becomes inconsequential. Where, as in this
case, both the victim and the accused were grappling for
possession of a gun, the direction of its nozzle may continuously
change in the process, such that the trajectory of the bullet when
the weapon fires becomes unpredictable and erratic. In this case,
the eyewitness account of that aspect of the tragic scuffle shows
that the parties positions were unsteady, and that the nozzle of the
gun was neither definitely aimed nor pointed at any particular
target. We quote the eyewitness testimony as follows:
Q. And when the gun fired the gun was on Tomas Balboa?
A. I could not see towards whom the nozzle of the gun was
when it fired because they were grappling for the
possession of the gun.
xxxxxxxxx
Q. Did you see the barrel of the gun when the gun fired?
A. I could not really conclude towards whom the barrel of
the gun was pointed to because the gun was turning.[24]
xxxxxxxxx
Q And was he facing Tomas Balboa when he was holding the
gun with his right hand?
566
A At first, they were not directly facing each other.
Q So later, they were facing each other?
A They were not directly facing each other. Their position did
not remain steady as they were grappling for the
possession of the gun force against force.[25]
In his Petition, this explanation is given by petitioner:
x x x. The Court of Appeals erred in concluding that Balboa was
shot frontally. First, because the position of the gun does not
necessarily indicate the position of the person or persons holding
the gun when it fired.This is especially true when two persons
were grappling for the possession of the gun when it fired, as
what exactly transpired in this case. x x x.
[The] testimony clearly demonstrates that the petitioner was on
the left side of the victim during the grappling when the gun
fired. The second wound was thus inflicted this wise: when the
first shot hit Balboa, his upper body was pushed downward
owing to the knocking power of the caliber .45 pistol. But he did
not let go of his grip of the hand of petitioner and the gun, Balboa
pulling the gun down as he was going down. When the gun went
off the second time hitting Balboa, the trajectory of the bullet in
Balboas body was going upward because his upper body was
pushed downward twisting to the left. It was then that Balboa let
go of his grip. On cross-examination, petitioner testified, what I
noticed was that after successive shots we separated from
each other. This sequence of events is logical because the
protagonists were grappling over the gun and were moving
very fast. x x x. [26]
Presence of All the
Elements of Accident
The elements of accident are as follows: 1) the accused was
at the time performing a lawful act with due care; 2) the resulting
injury was caused by mere accident; and 3) on the part of the
accused, there was no fault or no intent to cause the injury.[27] From
the facts, it is clear that all these elements were present. At the
time of the incident, petitioner was a member -- specifically, one of
the investigators -- of the Philippine National Police (PNP)
stationed at the Iloilo Provincial Mobile Force Company. Thus, it
was in the lawful performance of his duties as investigating officer
that, under the instructions of his superior, he fetched the victim
from the latters cell for a routine interrogation.
Again, it was in the lawful performance of his duty as a law
enforcer that petitioner tried to defend his possession of the
weapon when the victim suddenly tried to remove it from his
holster. As an enforcer of the law, petitioner was duty-bound to
prevent the snatching of his service weapon by anyone, especially
by a detained person in his custody. Such weapon was likely to be
used to facilitate escape and to kill or maim persons in the vicinity,
including petitioner himself.
Petitioner cannot be faulted for negligence. He exercised all
the necessary precautions to prevent his service weapon from
causing accidental harm to others. As he so assiduously
maintained, he had kept his service gun locked when he left his
house; he kept it inside its holster at all times, especially within the
premises of his working area.
At no instance during his testimony did the accused admit to
any intent to cause injury to the deceased, much less kill
him. Furthermore, Nicostrato Estepar, the guard in charge of the
detention of Balboa, did not testify to any behavior on the part of
petitioner that would indicate the intent to harm the victim while
being fetched from the detention cell.
The participation of petitioner, if any, in the victims death was
limited only to acts committed in the course of the lawful
performance of his duties as an enforcer of the law. The removal
of the gun from its holster, the release of the safety lock, and the
firing of the two successive shots -- all of which led to the death of
the victim -- were sufficiently demonstrated to have been
consequences of circumstances beyond the control of
petitioner. At the very least, these factual circumstances create
serious doubt on the latters culpability.
Petitioners Subsequent Conduct
Not Conclusive of Guilt
567
To both the trial and the appellate courts, the conduct of
petitioner immediately after the incident was indicative of
remorse. Allegedly, his guilt was evident from the fact that he was
dumbfounded, according to the CA; was mum, pale and trembling,
according to the trial court. These behavioral reactions supposedly
point to his guilt. Not necessarily so. His behavior was
understandable. After all, a minute earlier he had been calmly
escorting a person from the detention cell to the investigating
room; and, in the next breath, he was looking at his companions
bloodied body. His reaction was to be expected of one in a state of
shock at events that had transpired so swiftly and ended so
regrettably.
Second Issue:
Self-Defense
Petitioner advanced self-defense as an alternative. Granting
arguendo that he intentionally shot Balboa, he claims he did so to
protect his life and limb from real and immediate danger.
Self-defense is inconsistent with the exempting circumstance
of accident, in which there is no intent to kill. On the other hand,
self-defense necessarily contemplates a premeditated intent to kill
in order to defend oneself from imminent danger.[28] Apparently, the
fatal shots in the instant case did not occur out of any conscious or
premeditated effort to overpower, maim or kill the victim for the
purpose of self-defense against any aggression; rather, they
appeared to be the spontaneous and accidental result of both
parties attempts to possess the firearm.
Since the death of the victim was the result of an accidental
firing of the service gun of petitioner -- an exempting circumstance
as defined in Article 12 of the Revised Penal Code -- a further
discussion of whether the assailed acts of the latter constituted
lawful self-defense is unnecessary.
WHEREFORE, the Petition is GRANTED and the assailed
Decision REVERSED. Petitioner is ACQUITTED.
No costs.
SO ORDERED.
Sandoval-Gutierrez, Corona, and Carpio Morales, JJ., concur.
 [21]
Supra. See 161 Phil. 611, 617, February 27, 1976, per curiam.
[22]
Supra.
[23]
CA Decision, p. 18; rollo, p. 66.
[1]
Rollo, pp. 9-47. [24]
TSN, supra, pp. 30-31.
[2]
Id., pp. 49-68. Sixteenth Division. Penned by Justice B. A. Adefuin-de la Cruz [25]
Id., p. 28. Underscoring and boldface supplied.
(Division chair) and concurred in by Justices Andres B. Reyes Jr. and
Rebecca de Guia-Salvador (members).
[26]
Petition, pp. 27-28; rollo, pp. 35-36. Boldface in the original.
[3]
Id., p. 70. [27]
People v. Cariquez, supra.
[4]
CA rollo, pp. 9-20. [28]
In the assailed Decision, the appellate court -- while acknowledging the innate
differences between accident and self-defense, the former
[5]
Written by Judge Bartolome M. Fanual. presupposing the lack of intention to inflict harm and the latter assuming
[6]
CA rollo, p. 8. voluntariness induced by necessity -- nevertheless submits that the
standards to be used in determining whether the elements of one or the
[7]
Dated October 28, 1991; CA rollo, p. 8. other are extant are one and the same.
[8]
Comment, pp. 2-7; rollo, pp. 77-82. Citations omitted. The Court disagrees. It is apparent from their varying definitions under the
Revised Penal Code that accident and self-defense are two different
[9]
Petition, pp. 5-11; rollo, pp. 13-19. Citations omitted. circumstances. Accident, as an exempting circumstance, presupposes
[10]
69 SCRA 474, 479, February 27, 1976. that while a crime may have been committed, no criminal is to be held
liable. Section 4 of Article 12 describes accident as an exempting
[11]
CA Decision, p. 16; rollo, p. 64. circumstance as follows:
[12]
Id., pp. 17 and 65. Italics supplied. Article 12. Circumstances which are exempt from criminal liability: --
The following are exempt from criminal liability:
[13]
CA Decision, p. 19; rollo, p. 67.
xxxxxxxxx
[14]
This case was deemed submitted for decision on January 13, 2003, upon this
Courts receipt of respondents Memorandum, signed by Assistant (4) Any person who, while performing a lawful act with due care, causes
Solicitor General Josefina C. Castillo and Associate Solicitor Josephine an injury by mere accident without fault or intent of causing it.
D. Arias. Petitioners Memorandum, signed by Atty. Ferdinand M. Negre
and Atty. Karen O. Amurao-Dalangin, was filed on October 1, 2002. xxxxxxxxx
[15]
Petitioners Memorandum, pp. 15-16; rollo, pp. 126-127. Original in upper On the other hand, the justifying circumstance of self-defense presupposes that
case. no crime has been committed for which a criminal can be held liable. It
is apparent, from a reading of Section 3 of Article 11, that the law treats
[16]
Borromeo v. Sun, 375 Phil. 595, October 22, 1999. the justifying circumstance of self-defense as a totally different
circumstance with another set of elements, as follows:
[17]
People v. Cariquez, 373 Phil. 877, September 27, 1999. To determine
accident, the following three elements must concur: 1) the accused is Article 11. Justifying circumstances. The following do not incur any
performing a lawful act with due care; 2) the resulting injury is caused criminal liability:
by mere accident; and 3) on the part of the accused, there is no fault or
intent to cause the injury. 1. Anyone who acts in defense of his person or rights provided that the
following circumstances concur:
[18]
TSN, July 29, 1994, pp. 22-40. (Emphasis supplied)
First. Unlawful aggression;
[19]
CA Decision, pp. 16-17; rollo, pp. 64-65. Second. Reasonable necessity of the means employed to
prevent or repel it;
[20]
Petition, pp. 25-26; rollo, pp. 33-34.
Third. Lack of sufficient provocation on the part of the person
defending himself.
568
 xxxxxxxxx
With their differing elements, one cannot, as the appellate court erroneously did,
utilize the standards used in proving self-defense to prove whether or
not under the same facts, accident is extant.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 1352 March 29, 1905
THE UNITED STATES, complainant-appelle,
vs.
APOLONIO CABALLEROS, ET AL., defendants-appellants.
Hipolito Magsalin for appellants.
Office of the Solicitor-General Araneta for appellee.
MAPA, J.:
The defendants have been sentenced by the Court of First Instance of Cebu
to the penalty of seven years of presidio mayor as accessories after the fact
in the crime of assassination or murder perpetrated on the persons of the
American school-teachers Louis A. Thomas, Clyde O. France, John E.
Wells, and Ernest Eger, because, without having taken part in the said crime
as principals or as accomplices, they took part in the burial of the corpses of
the victims in order to conceal the crime.
The evidence does not justify, in our opinion, this sentence. As regards
Roberto Baculi, although he confessed to having assisted in the burial of the
corpses, it appears that he did so because he was compelled to do so by
the murderers of the four teachers. And not only does the defendant affirm
this, but he is corroborated by the only eyewitness to the crime, Teodoro
Sabate, who, by the way, is a witness for the prosecution. This witness says
he was present when the Americans were killed; that Roberto Baculi was
not a member of the group who killed the Americans, but the he was in a
banana plantation on his property gathering some bananas; that when he
heard the shots he began to run; that he was, however, seen by Damaso
and Isidoro, the leaders of the band; that the latter called to him and striking
him with the butts of their guns they forced him to bury the corpses.
569
The Penal Code exempts from liability any person who performs the act by
reason of irresistible force (par. 9, art. 8). Baculi acted, doubtless, under
such circumstances when he executed the acts which are charged against
him.
As regards the other defendant, Apolonio Caballeros, there is no proof that
he took any part in any way in the execution of the crime with which he has
been charged; there is conclusive proof to the contrary, since Baculi, as well
as one of the witnesses for the prosecution, Teodoro Sabate, expressly
declare that he, Caballeros, did not take any part in the burial of the
aforesaid corpses, nor was he even in the place of the occurrence when the
burial took place. The confession of his supposed liability and guilt, made
before an official of the division of information of the Constabulary, Enrique
Calderon, as the latter states when testifying as a witness, can not be
considered as legal proof, because the same witness says that Roberto
Baculi was the only one of the defendants who made a confession to
him voluntarily. It appears besides, from the statements of another witness
for the prosecution, Meliton Covarrubias, that the confession of Apolonio
Caballeros was made through the promise made to him and to the other
defendants that nothing would be done to them. Confessions which do not
appear to have been made freely and voluntarily, without force, intimidation,
or promise of pardon, can not be accepted as proof on a trial. (Sec. 4, Act
No. 619 of the Philippine Commission).
The fact of the defendants not reporting to the authorities the perpetration of
the crime, which seems to be one of the motives for the conviction and
which the court below takes into consideration in his judgment, is not
punished by the Penal Code and therefore that can not render the
defendants criminally liable according to law.
By virtue, then, of the above considerations, and with a reversal of the
judgment appealed from, we acquit the defendants, appellants, with the
costs de oficio in both instances. So ordered.
Arellano, C.J., Torres, Johnson and Carson, JJ., concur.
EN BANC
[G.R. No. 1481. February 17, 1903. ]
THE UNITED STATES, Complainant-Appellee, v. LIBERATO EXALTACION ET
AL., Defendants-Appellants.
Alberto Barretto, for Appellants.
Solicitor-General Araneta, for Appellee.
SYLLABUS
1. CRIMINAL LAW; REBELLION; DURESS. — The defendants were captured by
brigands, who compelled them, by threats of death, to take and subscribe an oath
to support the Katipunan Society, an organization created for the purpose of
subverting the Government by force: Held, That the duress under which the
defendants acted relieves them from criminal liability.
DECISION
TORRES, J. :
March 26, 1903, the provincial fiscal of Bulacan presented to the court of that
province an information charging Liberato Exaltacion and Buenaventura Tanchinco
with the crime of rebellion, in that they, subsequently to the 4th day of
November, 1901, willfully and illegally bound themselves to take part in the
rebellion against the Government of the United States in these Islands, swearing
allegiance to the Katipunan Society, the purpose of which was to overthrow the
said Government by force of arms, this against the statute in the case made and
provided.
In the course of the trial Don Pablo Tecson, the provincial governor of Bulacan,
testified under oath that the two defendants were arrested in the month of March,
1903, the police some days before having captured a number of documents in the
encampment of one Contreras, a so-called general of bandits, situated at a place
called Langca, of the town of Meycauayan, among which documents appeared the
papers now in pages 2 and 3 of the record, signed by the said Exaltacion and
Tanchinco, who recognized the said documents when they were exhibited to
them; that the said defendants stated to the witness that they had signed the
documents under compulsion; that the purpose of the Katipunan Society was to
obtain the independence of the Philippines; that this statement was made in the
house of the parish priest of Meycauayan in the presence of Exequiel Casa and
Fernando Nieto. The latter, upon their examination as witnesses, testified to the
same facts stating that the defendants told Governor Tecson that they had signed
the said documents under fear of death at the hands of the thieves by whom they
had been captured. The witness Casas, the municipal president of Meycauayan,
testified that he held office as such in place of the former president, Don Tomas
Testa, who was kidnapped in the month of October, 1902.
The said documents, the first of which was dated July 4 and the second July 17,
1902, were written in Tagalog, and contain an oath taken in the name of God, and
a covenant on the part of the subscribers to carry out the superior orders of the
Katipunan, and never disobey them until their death in the defense of the mother
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country. The two accused under oath, testified to having signed the said
documents and alleged that they did not so under compulsion and force while they
were held as captives by the thieves; that the defendant Tanchinco was captured
in the fields one day when he was going to work on his farm by three armed men,
unknown to him, who asked him if he was an agent or friend of President Testa,
and upon his replying in the negative they compelled him in view of his denial to
sign a document, now on page 3 of the record.
The defendant Tanchinco cited Lazaro Yusay to testify to the fact that he was
captured at a place called Kaibiga in the township of Novaliches, and that on the
day following his release, having been unable to pay the $300 which was
demanded of him, he reported to the president, Tomas Testa. The defendant
Liberato Exaltacion under oath testified that he was captured near Meycauayan by
five persons, unknown, dressed as policemen and armed with guns or revolvers;
that these men bound him and took him into the forest and there compelled him
by threats of death to sign the document now on page 2 of the record; that
thereupon they allowed him to go upon promise to return. This defendant testified
that Antero Villano and Tomas Rivera saw him while on the road in the hands of
the thieves. Both the accused testified that as soon as they were released they
presented themselves to the president, Don Tomas Testa, in the presence of
witnesses, and subsequently went to Bonifacio Morales, a lieutenant of volunteers,
and reported to him the fact that they had been captured.
The witnesses Morales, Lazaro Yusay, Antero Villano, Dalmacio Ferrer, and
Hipolito de Leon — of whom the last two were present when Tanchinco appeared
before Senor Testa, the president of Meycauayan, and reported to him what had
happened to him — all testified to the same fact and corroborated the statements
of the accused with respect to their capture and their subsequent report to
President Testa and to the witness Morales.
The evidence for the prosecution, and especially the two documents above
referred to, signed by the accused, is not sufficient to prove the guilt of the latter
or to justify the imposition upon them f the penalty inflicted by the judgment of
the curt below.
The facts, established by the evidence, that the defendants were kidnapped by
brigands who belonged to the Contreras band, and that they signed the said
documents under compulsion and while in captivity, relieve them from all criminal
liability from the crime of rebellion of which they are charged. The conduct of the
defendants in presenting themselves first to the local president of Meycauayan
and subsequently to Lieut. Bonifacio Morales, of the Bulacan Government
Volunteers, as soon as they were released by the bandits is corroborative of their
testimony, and is the best demonstration of their innocence. This conclusion is not
overcome by the trifling discrepancy between the testimony of the witness Yusay
and that of the defendant Tanchinco nor the fact that Exaltacion was unable to
determine the date when he was captured or that on which he appeared before
President Testa.
The guilt of the defendants of the crime defined and punished by Act No. 292 not
having been established at the trial beyond a reasonable doubt, we are of the
opinion that the judgment below must be reversed and the defendants acquitted
with the costs de oficio. The judge below will be informed of this decision and a
copy of the judgment entered herein will be furnished him for his information and
guidance. So ordered.
Arellano, C.J., Cooper, Willard, Mapa, McDonough and Johnson, JJ., concur.

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