EN BANC

ARISTOTEL VALENZUELA y G. R. No. 160188

NATIVIDAD,
Petitioner, Present:

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

June 21, 2007

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DECISION

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes having performed

the felonious acts imputed against him, but instead insists that as a result, he should be adjudged guilty of frustrated theft only, not

the felony in its consummated stage of which he was convicted. The proposition rests on a common theory expounded in two well-

known decisions[1] rendered decades ago by the Court of Appeals, upholding the existence of frustrated theft of which the accused

in both cases were found guilty. However, the rationale behind the rulings has never been affirmed by this Court.

As far as can be told,[2] the last time this Court extensively considered whether an accused was guilty of frustrated or

consummated theft was in 1918, in People v. Adiao.[3] A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition now gives

occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code.

I.
The basic facts are no longer disputed before us. The case stems from an Information [6] charging petitioner Aristotel Valenzuela

(petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon

were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago

(Lago), a security guard who was then manning his post at the open parking area of the supermarket. Lago saw petitioner, who was

wearing an identification card with the mark Receiving Dispatching Unit (RDU), hauling a push cart with cases of detergent of the

well-known Tide brand. Petitioner unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then

returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramaticand again unloaded these

boxes to the same area in the open parking space.[7]

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking space

where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these

acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a

receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow

security guards of the incident. Petitioner and Calderon were apprehended at the scene, and the stolen merchandise recovered.[8] The

filched items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional

cases of detergent, the goods with an aggregate value of P12,090.00.[9]

Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to the Baler

Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police investigation records that

apart from petitioner and Calderon, four (4) other persons were apprehended by the security guards at the scene and delivered to

police custody at the Baler PNP Station in connection with the incident. However, after the matter was referred to the Office of the

Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the Assistant City Prosecutor, in Informations

prepared on 20 May 1994, the day after the incident.[10]

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent bystanders within

the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards

after a commotion and brought to the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super

Sale Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada. [11] As the queue for the ATM was

long, Calderon and Rosulada decided to buy snacks inside the supermarket. It was

while they were eating that they heard the gunshot fired by Lago, leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their detention. [12] Meanwhile,

petitioner testified during trial that he and his cousin, a Gregorio Valenzuela, [13] had been at the parking lot, walking beside the

nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The

gunshot caused him and the other people at the scene to start running, at which point he was apprehended by Lago and brought to

the security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and the others

were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was detained

overnight, and eventually brought to the prosecutors office where he was charged with theft. [14]During petitioners cross-

examination, he admitted that he had been employed as a bundler of GMS Marketing, assigned at the supermarket though not at

SM.[15]

In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted both

petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term of two (2) years

of prision correccional as minimum to seven (7) years of prision mayor as maximum.[17] The RTC found credible the testimonies

of the prosecution witnesses and established the convictions on the positive identification of the accused as perpetrators of the

crime.

Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a brief[19] with the Court of Appeals,

causing the appellate court to deem Calderons appeal as abandoned and consequently dismissed. Before the Court of Appeals,

petitioner argued that he should only be convicted of frustrated theft since at the time he was apprehended, he was never placed in

a position to freely dispose of the articles stolen.[20] However, in its Decision dated 19 June 2003,[21] the Court of Appeals rejected

this contention and affirmed petitioners conviction.[22] Hence the present Petition for Review,[23] which expressly seeks that

petitioners conviction be modified to only of Frustrated Theft. [24]

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation

in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged.[25] As such, there is no cause

for the Court to consider a factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of

Appeals. The only question to consider is whether under the given facts, the theft should be deemed as consummated or merely

frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites [26] two decisions rendered many years ago by the

Court of Appeals: People v. Dio[27] and People v. Flores.[28] Both decisions elicit the interest of this Court, as they modified trial

court convictions from consummated to frustrated theft and involve a factual milieu that bears similarity to the present case.

Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not expressly consider the
import of the rulings when it affirmed the conviction.
 It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have not

yet been expressly adopted as precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our

part, Dio and Flores have attained a level of renown reached by very few other appellate court rulings. They are comprehensively

discussed in the most popular of our criminal law annotations,[29] and studied in criminal law classes as textbook examples of

frustrated crimes or even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams

more than they actually occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could

profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the

thief having to exit with the stolen property through a supervised egress, such as a supermarket checkout counter or a parking area

pay booth, may easily call for the application of Dio and Flores. The fact that lower courts have not hesitated to lay down

convictions for frustrated theft further validates that Dio and Flores and the theories offered therein on frustrated theft have borne

some weight in our jurisprudential system. The time is thus ripe for us to examine whether those theories are correct and should

continue to influence prosecutors and judges in the future.

III.

To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to frustrated theft, it is

necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code. [30]

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is consummated when

all the elements necessary for its execution and accomplishment are present. It is frustrated when the offender performs all the acts

of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes

independent of the will of the perpetrator. Finally, it is attempted when the offender commences the commission of a felony directly

by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident

other than his own spontaneous desistance.

Each felony under the Revised Penal Code has a subjective phase, or that portion of the acts constituting the crime included between

the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should result
in the consummated crime.[31] After that point has been breached, the subjective phase ends and the objective phase begins. [32] It
has been held that if the offender never passes the subjective phase of the offense, the crime is merely attempted. [33] On the other

hand, the subjective phase is completely passed in case of frustrated crimes, for in such instances, [s]ubjectively the crime is

complete.[34]

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the

other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a felony, the crime

is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime under the Revised Penal Code are

generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only would need to compare the acts

actually performed by the accused as against the acts that constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts

of execution have been performed by the offender. The critical distinction instead is whether the felony itself was actually produced

by the acts of execution. The determination of whether the felony was produced after all the acts of execution had been performed

hinges on the particular statutory definition of the felony. It is the statutory definition that generally furnishes the elements of each

crime under the Revised Penal Code, while the elements in turn unravel the particular requisite acts of execution and accompanying

criminal intent.

The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an important characteristic of a crime, that

ordinarily, evil intent must unite with an unlawful act for there to be a crime, and accordingly, there can be no crime when the

criminal mind is wanting.[35] Accepted in this jurisdiction as material in crimes mala in se,[36] mens reahas 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 embeddedwhich attests when the felony is produced by the acts of execution.
For example, the statutory definition of murder or homicide expressly uses the phrase shall kill another, thus making it clear that

the felony is produced by the death of the victim, and conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled out as

follows:

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but
without violence against or intimidation of persons nor force upon things, shall take personal property of
another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local
authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or
make use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fish upon the same
or shall gather cereals, or other forest or farm products.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be

committed.[41] In the present discussion, we need to concern ourselves only with the general definition since it was under it that the

prosecution of the accused was undertaken and sustained. On the face of the definition, there is only one operative act of execution

by the actor involved in theft ─ the taking of personal property of another. It is also clear from the provision that in order that such

taking may be qualified as theft, there must further be present the descriptive circumstances that the taking was with intent to gain;

without force upon things or violence against or intimidation of persons; and it was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal

Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done

with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without

the use of violence against or intimidation of persons or force upon things. [42]

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as defined

by Gaius, was so broad enough as to encompass any kind of physical handling of property belonging to another against the will of

the owner,[43] a definition similar to that by Paulus that a thief handles (touches, moves) the property of another. [44] However, with

the Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must further be an intent of acquiring

gain from the object, thus: [f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus

possessinisve.[45] This requirement of animo lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws,

even as it has since been abandoned in Great Britain.[46]

 In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful taking, to characterize theft. Justice

Regalado notes that the concept of apoderamientoonce had a controversial interpretation and application. Spanish law had already

discounted the belief that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled with the intent

to appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the lawful owner of the

thing.[47] However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be permanency

in the taking[48] or an intent to permanently deprive the owner of the stolen property;[49] or that there was no need for permanency

in the taking or in its intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner

already constituted apoderamiento.[50] Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no

need of an intent to permanently deprive the owner of his property to constitute an unlawful taking. [51]

So long as the descriptive circumstances that qualify the taking are present, including animo lucrandi and apoderamiento, the

completion of the operative act that is the taking of personal property of another establishes, at least, that the transgression went

beyond the attempted stage. As applied to the present case, the moment petitioner obtained physical possession of the cases of

detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed without need to inflict violence or

intimidation against persons nor force upon things, and accomplished without the consent of the SM Super Sales Club, petitioner

forfeited the extenuating benefit a conviction for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised Penal

Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once the acts committed by

petitioner, if ordinarily sufficient to produce theft as a consequence, do not produce [such theft] by reason of causes independent

of the will of the perpetrator. There are clearly two determinative factors to consider: that the felony is not produced, and that such

failure is due to causes independent of the will of the perpetrator. The second factor ultimately depends on the evidence at hand in
each particular case. The first, however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised

Penal Code[52] as to when a particular felony is not produced, despite the commission of all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is the felony of

theft produced. Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the

language of the law that theft is already produced upon the tak[ing of] personal property of another without the latters consent.

U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was charged with theft after he abstracted a leather

belt from the baggage of a foreign national and secreted the item in his desk at the Custom House. At no time was the accused able
to get the merchandise out of the Custom House, and it appears that he was under observation during the entire transaction.[54] Based

apparently on those two circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying
that neither circumstance was decisive, and holding instead that the accused was guilty of consummated theft, finding that all the

elements of the completed crime of theft are present.[55] In support of its conclusion that the theft was consummated, the Court cited

three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below:

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

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

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

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases

had been able to obtain full possession of the personal property prior to their apprehension. The interval between the commission

of the acts of theft and the apprehension of the thieves did vary, from sometime later in the 1898 decision; to the very moment the

thief had just extracted the money in a purse which had been stored as it was in the 1882 decision; and before the thief had been

able to spirit the item stolen from the building where the theft took place, as had happened in Adiao and the 1897 decision. Still,
such intervals proved of no consequence in those cases, as it was ruled that the thefts in each of those cases was consummated by

the actual possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft.

The case is People v. Sobrevilla,[57] where the accused, while in the midst of a crowd in a public market, was already able to abstract

a pocketbook from the trousers of the victim when the latter, perceiving the theft, caught hold of the [accused]s shirt-front, at the

same time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards

caught by a policeman.[58] In rejecting the contention that only frustrated theft was established, the Court simply said, without

further comment or elaboration:

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

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the

offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to

consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case.

Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on when theft is

consummated, as reflected in the Dio and Flores decisions.

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused

therein, a driver employed by the United States Army, had driven his truck into the port area of the South Harbor, to unload a

truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck from the

Port, but as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck and found

therein three boxes of army rifles. The accused later contended that he had been stopped by four men who had loaded the boxes

with the agreement that they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial court convicted

accused of consummated theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had been

committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles pass through

the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass

through the check point without further investigation or checking.[60] This point was deemed material and indicative that the theft

had not been fully produced, for the Court of Appeals pronounced that the fact determinative of consummation is the ability of the

thief to dispose freely of the articles stolen, even if it were more or less momentary.[61] Support for this proposition was drawn from

a decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows:

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

Integrating these considerations, the Court of Appeals then concluded:

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

Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension

is determinative as to whether the theft is consummated or frustrated. This theory was applied again by the Court of Appeals some

15 years later, in Flores, a case which according to the division of the court that decided it, bore no substantial variance between

the circumstances [herein] and in [Dio].[64] Such conclusion is borne out by the facts in Flores. The accused therein, a checker

employed by the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who had loaded

the purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the

delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered

that the empty sea van had actually contained other merchandise as well. [65] The accused was prosecuted for theft qualified by

abuse of confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the

alternative that he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of

spontaneous desistance on the part of the accused that literally frustrated the theft. However, the Court of Appeals, explicitly relying

on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found no substantial variance between Dio and Flores then before it. The

prosecution in Flores had sought to distinguish that case from Dio, citing a traditional ruling which unfortunately was not identified

in the decision itself. However, the Court of Appeals pointed out that the said traditional ruling was qualified by the words is placed

in a situation where [the actor] could dispose of its contents at once. [66] Pouncing on this qualification, the appellate court noted

that [o]bviously, while the truck and the van were still within the compound, the petitioner could not have disposed of the goods at

once. At the same time, the Court of Appeals conceded that [t]his is entirely different from the case where a much less bulk and

more common thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably less

restricted,[67] though no further qualification was offered what the effect would have been had that alternative circumstance been

present instead.

Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was

produced is the ability of the actor to freely dispose of the articles stolen, even if it were only momentary. Such conclusion was

drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in determining whether theft had been

consummated, es preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o menos

momentaneamente. The qualifier siquiera sea mas o menos momentaneamente proves another important consideration, as it implies
that if the actor was in a capacity to freely dispose of the stolen items before apprehension, then the theft could be deemed

consummated. Such circumstance was not present in either Dio or Flores, as the stolen items in both cases were retrieved from the
actor before they could be physically extracted from the guarded compounds from which the items were filched. However, as

implied in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been free

disposition, as in the case where the chattel involved was of much less bulk and more common x x x, [such] as money x x x.[68]

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

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

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that [i]n theft or

robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same,

although his act of making use of the thing was frustrated.[72]

There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores rulings. People

v. Batoon[73] involved an accused who filled a container with gasoline from a petrol pump within view of a police detective, who

followed the accused onto a passenger truck where the arrest was made. While the trial court found the accused guilty of frustrated

qualified theft, the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that [t]he facts of the

cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate

the crime of theft.[74]

In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a supply depot and loaded them onto

a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military Police running the

checkpoint. Even though those facts clearly admit to similarity with those in Dio, the Court of Appeals held that the accused were

guilty of consummated theft, as the accused were able to take or get hold of the hospital linen and that the only thing that was

frustrated, which does not constitute any element of theft, is the use or benefit that the thieves expected from the commission of

the offense.[76]

In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that [w]hen the meaning of an element

of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that felony.[77] Indeed, we can

discern from this survey of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given
the disputed foundational basis of the concept of frustrated theft itself, the question can even be asked whether there is really such

a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we

undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.[78]

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation,

in the act of gathering and tying some coconuts. The accused were surprised by the owner within the plantation as they were

carrying with them the coconuts they had gathered. The accused fled the scene, dropping the coconuts they had seized, and were

subsequently arrested after the owner reported the incident to the police. After trial, the accused were convicted of qualified theft,

and the issue they raised on appeal was that they were guilty only of simple theft. The Court affirmed that the theft was qualified,

following Article 310 of the Revised Penal Code,[79] but further held that the accused were guilty only of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised

by any of the parties. What does appear, though, is that the disposition of that issue was contained in only two sentences, which we

reproduce in full:

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

No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may have bolstered

the conclusion. There are indeed evident problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors were not able to perform all the acts of execution which should

have produced the felon as a consequence.[81] However, per Article 6 of the Revised Penal Code, the crime is frustrated when the

offender performs all the acts of execution, though not producing the felony as a result. If the offender was not able to perform

all the acts of execution, the crime is attempted, provided that the non-

performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that the crime was

frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However, following Article
6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially given that the

acts were not performed because of the timely arrival of the owner, and not because of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences we had cited

actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such passage bears no reflection that it is the

product of the considered evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were

sourced from an indubitable legal premise so settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see

how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had once deliberately found

an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for frustrated theft, its doctrinal value is

extremely compromised by the erroneous legal premises that inform it, and also by the fact that it has not been entrenched by

subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction. Considering

the flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious argument to persuade us in this case.

Insofar as Empelis may imply that convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to

reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place. The definition of the

crime of theft, as provided then, read as follows:

Son reos de hurto:

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

2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin de
lucro.

3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos previstos
en los 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]

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 delhurto no lo consume efectivamente. Otherwise

put, it would be difficult to foresee how the execution of all the acts necessary for the completion of the crime would not produce

the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to

accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is no crime of frustrated theft in this

jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of Cuello Calns position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective, as

we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to accept that theft is capable of

commission in its frustrated stage. Further, if we ask the question whether there is a mandate of statute or precedent that must

compel us to adopt the Dio and Flores doctrines, the answer has to be in the negative. If we did so, it would arise not out of

obeisance to an inexorably higher command, but from the exercise of the function of statutory interpretation that comes as part and

parcel of judicial review, and a function that allows breathing room for a variety of theorems in competition until one is ultimately

adopted by this Court.

V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through

statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of the sovereign

people, which determines which acts or combination of acts are criminal in nature. Judicial interpretation of penal laws should be

aligned with what was the evident legislative intent, as expressed primarily in the language of the law as it defines the crime. It is

Congress, not the courts, which is to define a crime, and ordain its punishment.[88] The courts cannot arrogate the power to introduce

a new element of a crime which was unintended by the legislature, or redefine a crime in a manner that does not hew to the statutory

language. Due respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad

interpretation of penal laws where a narrow interpretation is appropriate. The Court must take heed of language, legislative history
and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids. [89]

With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely dispose of

the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a

descriptive or operative element of theft or as the mens rea or actus reus of the felony. To restate what this Court has repeatedly

held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of

personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be

done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation

of persons or force upon things.[90]

 Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property

of another without the latters consent. While the Dio/Flores dictum is considerate to the mindset of the offender, the statutory

definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by the deprivation of

property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again,

when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is

deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the

product of the felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose

of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution. This conclusion

is reflected in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft or robbery the crime is consummated after the

accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was

frustrated.[91]

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of taking

itself, in that there could be no true taking until the actor obtains such degree of control over the stolen item. But even if this were

correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts

of execution have not been completed, the taking not having been accomplished. Perhaps this point could serve as fertile ground

for future discussion, but our concern now is whether there is indeed a crime of frustrated theft, and such consideration proves

ultimately immaterial to that question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied

beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical

possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a spot in the parking

lot, and long enough to load these onto a taxicab.

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

v. Avila:[93]

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

Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking, which is

the deprivation of ones personal property, is the element which produces the felony in its consummated stage. At the same time,
without unlawful taking as an act of execution, the offense could only be attempted theft, if at all.
 With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a

frustrated stage. Theft can only be attempted or consummated.

Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained

possession over the stolen items, the effect of the felony has been produced as there has been deprivation of property. The presumed

inability of the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived

of their right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of the

stolen property frustrates the theft would introduce a convenient defense for the accused which does not reflect any legislated

intent,[95] since the Court would have carved a viable means for offenders to seek a mitigated penalty under applied circumstances

that do not admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is susceptible to free

disposal by the thief. Would this depend on the psychological belief of the offender at the time of the commission of the crime, as

implied in Dio?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property,

the location of the property, the number and identity of people present at the scene of the crime, the number and identity of people

whom the offender is expected to encounter upon fleeing with the stolen property, the manner in which the stolen item had been

housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would come into account,

relevant as that would be on whether such property is capable of free disposal at any stage, even after the taking has been

consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed

deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the presumed fact

if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have been completed. If the facts

establish the non-completion of the taking due to these peculiar circumstances, the effect could be to downgrade the crime to the

attempted stage, as not all of the acts of execution have been performed. But once all these acts have been executed, the taking has

been completed, causing the unlawful deprivation of property, and ultimately the consummation of the theft.

Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated

framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such fashion as to
accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the free disposition of

the items stolen is in any way determinative of whether the crime of theft has been produced. Dio itself did not rely on Philippine
laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying on Dio alone for legal

support. These cases do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of our law on theft

leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not since found favor

from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the

success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be denied, for we decline to adopt said

rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be no frustrated theft under the Revised

Penal Code does not detract from the correctness of this conclusion. It will take considerable amendments to our Revised Penal

Code in order that frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice
 MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate 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 was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

[1]See infra, People v. Dio and People v. Flores.

[2]Not accounting for those unpublished or unreported decisions, in the one hundred year history of this Court, which

could no longer be retrieved from the Philippine Reports or other secondary sources, due to their wholesale destruction during the
Second World War or for other reasons.
[3]See People v. Adiao, infra. There have been a few cases wherein the Court let stand a conviction for frustrated theft,

yet in none of those cases was the issue squarely presented that theft could be committed at its frustrated stage. See People v.
Abuyen, 52 Phil. 722 (1929); People v. Flores, 63 Phil. 443 (1936); and People v. Tapang, 88 Phil. 721 (1951). In People v.
Argel G.R. No. L-45975, 25 May 1981, 192 SCRA 21, the Court did tacitly accept the viability of a conviction for frustrated theft,
though the issue expounded on by the Court pertained to the proper appellate jurisdiction over such conviction.

It would indeed be error to perceive that convictions for frustrated theft are traditionally unconventional in this
jurisdiction, as such have routinely been handed down by lower courts, as a survey of jurisprudence would reveal. Still, the plain
fact remains that this Court , since Adiao in 1918, has yet to directly rule on the legal foundation of frustrated theft, or even discuss
such scenario by way of dicta.

In passing, we take note of a recent decision of the Court of Appeals in People v. Concepcion, C.A. G.R. CR No. 28280,
11 July 2005 (See at http://ca.supremecourt.gov.ph /cardis/CR28280.pdf), where the appellate court affirmed a conviction for
frustrated theft, the accused therein having been caught inside Meralco property before he could flee with some copper electrical
wire. However, in the said decision, the accused was charged at the onset with frustrated theft, and the Court of Appeals did not
inquire why the crime committed was only frustrated theft. Moreover, the charge for theft was not under the Revised Penal Code,
but under Rep. Act No. 7832, a special law.
[4]53 Phil. 226 (1929).
[5]217 Phil. 377 (1984).
[6]Records, pp. 1-2.
 [7]
Rollo, pp. 21-22.
[8]Id. at 22.
[9]See id. at 472.
[10]See Records, pp. 7-14. A brief comment is warranted regarding these four (4) other apparent suspects. The affidavits
and sworn statements that were executed during the police investigation by security guards Lago and Vivencio Yanson, by SM
employee Adelio Nakar, and by the taxi driver whose cab had been hailed to transport the accused, commonly point to all six as
co-participants in the theft of the detergents. It is not explained in the record why no charges were brought against the four (4) other
suspects, and the prosecutions case before the trial court did not attempt to draw in any other suspects other than petitioner and
Calderon. On the other hand, both petitioner and Calderon claimed during trial that they were innocent bystanders who happened
to be in the vicinity of the Super Sale Club at the time of the incident when they were haled in, along with the four (4) other suspects
by the security guards in the resulting confusion. See infra. However, both petitioner and Calderon made no move to demonstrate
that the non-filing of the charges against the four (4) other suspects somehow bolstered their plea of innocence.

In any event, from the time this case had been elevated on appeal to the Court of Appeals, no question was anymore
raised on the version of facts presented by the prosecution. Thus, any issue relative to these four (4) other suspects should bear no
effect in the present consideration of the case.
[11]Also identified in the case record as Rosalada or Rosullado. He happened to be among the four (4) other suspects also

apprehended at the scene and brought for investigation to the Baler PNP Station. See id. Rosulada also testified in court in behalf
of Calderon. See Records, pp. 357-390.
[12]Records, pp. 330-337.
[13]A person who was neither among the four (4) other suspects (see note 6) nor a witness for the defense.
[14]Rollo, p. 25.
[15]Records, pp. 424-425.
[16]Id. at 472-474; Penned by Judge Reynaldo B. Daway.
[17]Id. at 474.
[18]Id. at 484.
[19]CA rollo, pp. 54-62.
[20]Rollo, p. 25.
[21]Id.
at 20-27. Penned by Associate Justice Eubolo G. Verzola of the Court of Appeals Third Division, concurred in by
Associate Justices Martin S. Villarama, Jr. and Mario L. Guaria.
[22]A motion for reconsideration filed by petitioner was denied by the Court of Appeals in a Resolution dated 1 October
2003.
[23]Rollo, pp. 8-15.
[24]Id. at 12.
[25]Id. at 9.
[26]Id. at at 13-14.
[27]No. 924-R, 18 February 1948, 45 O.G. 3446.
[28]6 C.A. Rep. 2d 835 (1964).
[29]See e.g., L.B. REYES, I THE REVISED PENAL CODE: CRIMINAL LAW (13th ed., 2001), at 112-113 and R.

AQUINO, I THE REVISED PENAL CODE (1997 ed.), at 122.

[30]Act No. 3185, as amended.
 [31]SeePeople v. Caballero, 448 Phil. 514, 534 (2003). Reyes defines the final point of the subjective phase as that point
where [the offender] still has control over his acts, including their (acts) natural course. See L.B. REYES, I THE REVISED PENAL
CODE: CRIMINAL LAW (13th Ed., 2001), at 101.
[32]People v. Caballero, 448 Phil. 514, 534 (2003).
[33]See e.g., U.S. v. Eduave, 36 Phil. 209, 212 (1917); People v. Caballero, id.
[34]U.S. v. Eduave, 36 Phil. 209, 212 (1917).
[35]People v. Pacana, 47 Phil. 48 (1925); cited in AQUINO, supra note 29, at 39. See also Lecaroz v. Sandiganbayan,
364 Phil. 890, 905 (1999).
[36]See Padilla v. Dizon, A.C. No. 3086, 23 February 1988, 158 SCRA 127, 135.
[37]People v. Moreno, 356 Phil. 231, 248 (1998) citing BLACK'S LAW DICTIONARY, 5th ed., p. 889.
[38]Jariol, Jr. v. Sandiganbayan, Nos. L-52095-52116, 13 August 1990, 188 SCRA 475, 490.
[39]City of Chicago v. Morales, 527 U.S. 41 (1999) cited in Separate Opinion, J.Tinga, Romualdez v. Sandiganbayan,

G.R. No. 152259, 29 July 2004, 435 SCRA 371, 400.

[40]J. Feliciano, Concurring and Dissenting, Umil v. Ramos, G.R. No. 81567, 3 October 1991, 202 SCRA 251, 288.
[41]See also REVISED PENAL CODE, Art. 310, which qualifies theft with a penalty two degrees higher if committed by
a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or
consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on
the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.
[42]See People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA 284, 291, citing People v. Sison, 322 SCRA 345,
363-364 (2000).
[43]S. GUEVARRA, COMMENTARIES ON THE REVISED PENAL CODE (4th ed., 1946), at 614.
[44]Id. at 615.
[45]Id. citing Inst. 4, 1, 1.

[46]Section 1(2) of the Theft Act of 1968 states: It is immaterial whether the appropriation is made with a view to gain, or
is made for the thiefs own benefit. Sir John Smith provides a sensible rationalization for this doctrine: Thus, to take examples from
the old law, if D takes Ps letters and puts them down on a lavatory or backs Ps horse down a mine shaft, he is guilty of theft
notwithstanding the fact that he intends only loss to P and no gain to himself or anyone else. It might be thought that these instances
could safely and more appropriately have been left to other branches of the criminal lawthat of criminal damage to property for
instance. But there are cases where there is no such damage or destruction of the thing as would found a charge under another
Act. For example, D takes Ps diamond and flings it into a deep pond. The diamond lies unharmed in the pond and a prosecution
for criminal damage would fail. It seems clearly right that D should be guilty of theft. J. SMITH, SMITH & HOGAN CRIMINAL
LAW (9th ed., 1999), at 534.
[47]F. REGALADO, CRIMINAL LAW CONSPECTUS (1st ed., 2000), at 520.
[48]People v. Kho Choc, 50 O.G. 1667, cited in REGALADO, id. at 521.
[49]People v. Galang, CA, 43 O.G. 577; People v. Rico, CA, 50 O.G. 3103; cf.People v. Roxas, CA-G.R. No. 14953, 31

October 1956, all cited in REGALADO, supra note 47 at 521.

[50]People v. Fernandez, CA, 38 O.G. 985; People v. Martisano, CA, 48 O.G. 4417, cited in REGALADO, supra note 47
at 521.
 [51]
REGALADO, supra note 47 at 521 citing Villacorta v. Insurance Commission, G.R. No. 54171, 28 October 1980, 100
SCRA 467; Association of Baptists for World Evangelism v. Fieldmens Ins. Co., No. L-28772, 21 September 1983, 209 Phil. 505
(1983). See also People v. Bustinera, supra note 42.
[52]The distinction being inconsequential if the criminal charge is based on a special law such as the Dangerous Drugs

Law. See e.g., People v. Enriquez, G.R. No. 99838, October 23 1997, 281 SCRA 103, 120.
[53]38 Phil. 754 (1918).
[54]Id. at 755.
[55]Id.

[56]Id. at 755-756.
[57]Supra note 4.
[58]Supra note 4 at 227.
[59]Id.

[60]People v. Dio, supra note 27 at 3450.

[61]Id.

[62]Id.

[63]Id. at 3451.
[64]People v. Flores, supra note 28 at 840.
[65]Id. at 836. The Court of Appeals in Flores did not identify the character of these stolen merchandise.
[66]Id. at 841.
[67]Id.

[68]People v. Dio, supra note 27 at 841.

[69]People v. Naval and Beltran, CA 46 O.G. 2641.
[70]See note 62.
[71]AQUINO, supra note 29 at 122.
[72]Id. at 110.
[73]C.A. G.R. No. 20105-R, 4 October 1958, 55 O.G. 1388.

[74]Id. at 1391. Citations omitted.

[75]CA G.R. No. 2107-R, 31 May 1949.
[76]Note the similarity between this holding and the observations of Chief Justice Aquino in note 72.
[77]REYES, supra note 29 at 113.
[78]Supra note 5.

[79]REVISED PENAL CODE, Art. 310 states that the crime of theft shall "be punished by the penalties next higher by

two degrees than those respectively expressed in the next preceding article x x x if the property stolen x x x consists of coconuts
taken from the premises of a plantation, x x x." Thus, the stealing of coconuts when they are still in the tree or deposited on the
ground within the premises is qualified theft. When the coconuts are stolen in any other place, it is simple theft. Stated differently,
if the coconuts were taken in front of a house along the highway outside the coconut plantation, it would be simple theft only.

[In the case at bar, petitioners were seen carrying away fifty coconuts while they were still in the premises of the
plantation. They would therefore come within the definition of qualified theft because the property stolen consists of coconuts
taken from the premises of a plantation.] Empelis v. IAC, supra note 5, at 379, 380.

[80]Empelis v. IAC, supra note 5, at 380.

[81]Id.

[82]Art. 234, Cdigo Penal Espaol de 1995. See Ley Orgnica 10/1995, de 23 de noviembre, del Cdigo Penal,
http://noticias.juridicas.com/base_datos/Penal/lo10-1995.html (Last visited, 15 April 2007). The traditional qualifier but without
violence against or intimidation of persons nor force upon things, is instead incorporated in the definition of robbery (robos) under
Articulo 237 of the same Code (Son reos del delito de robo los que, con nimo de lucro, se apoderaren de las cosas muebles ajenas
empleando fuerza en las cosas para acceder al lugar donde stas se encuentran o violencia o intimidacin en las personas.)

By way of contrast, the Theft Act 1968 of Great Britain defines theft in the following manner: A person is guilty of theft
if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and thief
and steal shall be construed accordingly. See Section 1(1), Theft Act 1968 (Great Britain). The most notable difference between
the modern British and Spanish laws on theft is the absence in the former of the element of animo lucrandi. See note 42.

[83]1 S. VIADA, CODIGO PENAL REFORMADO DE 1870 (1926 ed) at 103.

[84]Considerando que segn se desprende de la sentencia recurrida, los dependientes de la sastrera de D. Joaquin Gabino

sorprendieron al penado Juan Gomez Lopez al tomar una capa que haba en un maniqu, por lo que hubo de arrojarla al suelo,
siendo detenido despues por agentes de la Autoridad yque esto supuesto es evidente que el delito no aparece realizado en toda la
extensin precisa para poderlo calificar como consumado, etc. Id. at 103-104.
[85]The other examples cited by Viada of frustrated theft are in the case where the offender was caught stealing potatoes

off a field by storing them in his coat, before he could leave the field where the potatoes were taken, see Viada (supra note 83, at
103), where the offender was surprised at the meadow from where he was stealing firewood, id.
[86]E. CUELLO CALON, II DERECHO PENAL (1955 ed.), at 799 (Footnote 1).
[87]Id. at 798-799.
[88]Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243, 266, citing United States v. Wiltberger, 18

U.S. 76 (1820).
[89]Laurel
v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243. See also Dowling v. United States,
473 U.S. 207 (1985).
[90]See e.g., People v. Bustinera, supra note 42.

[91]AQUINO, supra note 29, at 110.

[92]People v. Obillo, 411 Phil. 139, 150 (2001); People v. Bernabe, 448 Phil. 269, 280 (2003); People v.

Bustinera, supra note 42 at 295.

[93]44 Phil. 720 (1923).
[94]Id. at 726.
[95]Justice Regalado cautions against putting a premium upon the pretensions of an accused geared towards obtention of
a reduce
 SECOND DIVISION

G.R. No. 138033 February 22, 2006

RENATO BALEROS, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

GARCIA, J.:

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

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

The accusatory portion of the information4 dated December 17, 1991 charging petitioner with attempted rape reads
as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of
this Honorable Court, the above-named accused, by forcefully covering the face of Martina Lourdes T. Albano with a
piece of cloth soaked in chemical with dizzying effects, did then and there willfully, unlawfully and feloniously
commenced the commission of rape by lying on top of her with the intention to have carnal knowledge with her but
was unable to perform all the acts of execution by reason of some cause or accident other than his own spontaneous
desistance, said acts being committed against her will and consent to her damage and prejudice.

Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty." 5 Thereafter, trial on the
merits ensued.

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

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

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

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

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

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

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

xxx xxx xxx

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

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early morning
of December 13, 1991, wearing a white t-shirt with “‘…a marking on the front of the T-shirt T M and a Greek letter
(sic) ΣΦ’ and below the quoted letters the word ‘1946’ ‘UST Medicine and Surgery’” (TSN, October 9, 1992, p. 9) and
black shorts with the brand name “Adidas” (TSN, October 16, 1992, p.7) and requested permission to go up to Room
306. This Unit was being leased by Ansbert Co and at that time when CHITO was asking permission to enter, only
Joseph Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially
refused [but later, relented] …. S/G Ferolin made the following entry in the security guard’s logbook …:

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

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

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

xxx xxx xxx

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

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in.
…. It was at around 3 o’clock in the morning of December 13, 1991 when he woke up again later to the sound of
knocking at the door, this time, by Bernard Baptista (Bernard), ….

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

xxx xxx xxx

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

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

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

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

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

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief (Exhibit
"D-3) to be CHITO’s because CHITO had lent the very same one to him …. The t-shirt with CHITO’s fraternity
symbol, CHITO used to wear on weekends, and the handkerchief he saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of
Renato R. Alagadan’s testimony.

xxx xxx xxx.

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

xxx xxx xxx.

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

"SPECIMEN SUBMITTED:

xxx xxx xxx:

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

xxx xxx xxx

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

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

Exh. ‘D’ – One (1) printed handkerchief.

Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.

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

PURPOSE OF LABORATORY EXAMINATION:

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

FINDINGS:

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

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

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

CONCLUSION:

Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison."6 (Words in bracket added)
For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the crime
imputed to him or making at any time amorous advances on Malou. Unfolding a different version of the incident, the
defense sought to establish the following, as culled from the same decision of the appellate court:

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

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

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

xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long pants when he was dunked. Perla
Duran, …, offered each … dry clothes to change into and CHITO put on the white t-shirt with the Fraternity’s symbol
and a pair of black shorts with stripes. xxx .

Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the symbol TAU Sigma Phi, black
short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan and
Alberto at more or less past 1 A.M. of December 13, 1991 and proceeded to the Building which they reached at about
1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt, sando, underwear, socks, and
toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day ….

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

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

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

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

At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was already in his school uniform when,
around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter why this was so and, without
elaborating on it, Joseph told him that something had happened and to just go to Room 310 which CHITO did.

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

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

xxx xxx xxx

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

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

xxx xxx xxx

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

xxx xxx xxx

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

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

Also taking the witness stand for the defense were petitioner’s fraternity brothers, Alberto Leonardo and Robert Chan,
who both testified being with CHITO in the December 12, 1991 party held in Dr. Duran’s place at Greenhills, riding on
the same car going to and coming from the party and dropping the petitioner off the Celestial Marie building after the
party. Both were one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with short pants and
leather shoes at the time they parted after the party.7 Rommel Montes, a tenant of Room 310 of the said building,
also testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the door
of Room 306 while clad in dark short pants and white barong tagalog.

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

On December 14, 1994, the trial court rendered its decision 10 convicting petitioner of attempted rape and accordingly
sentencing him, thus:

WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused Renato D.
Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape as principal and as charged
in the information and hereby sentences him to suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2)
MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as Maximum,
with all the accessory penalties provided by law, and for the accused to pay the offended party Martina Lourdes T.
Albano, the sum of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorney’s fees of
P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.

SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial court’s
judgment of conviction, to wit:

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

SO ORDERED.11

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

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

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

2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the
prosecution failed to satisfy all the requisites for conviction based thereon.

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

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

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

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

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

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

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

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

Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient for conviction if –
 a) There is more than one circumstance;

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

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

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

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

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

From CHITO’s bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO
leave it, were discovered the most incriminating evidence: the handkerchief stained with blue and wet with some kind
of chemicals; a black "Adidas" satin short pants; and a white fraternity T-shirt, also stained with blue. A different
witness, this time, Christian Alcala, identified these garments as belonging to CHITO. As it turned out, laboratory
examination on these items and on the beddings and clothes worn by MALOU during the incident revealed that the
handkerchief and MALOU’s night dress both contained chloroform, a volatile poison which causes first degree burn
exactly like what MALOU sustained on that part of her face where the chemical-soaked cloth had been pressed.

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

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

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

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

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

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

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

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

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

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

xxx xxx xxx

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

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

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

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

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

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

SO ORDERED.

CANCIO C. GARCIA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairperson

( On Leave )
RENATO C. CORONA
ANGELINA SANDOVAL-GUTIERREZ*
Asscociate Justice
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

ATTESTATION

I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.

REYNATO S .PUNO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation, it is hereby certified
that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of
the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes

* On Leave.
1
Penned by Associate Justice Martin S. Villarama, Jr. and concurred in by Associate Justices Romeo A.
Brawner (ret.) and Eloy R. Bello, Jr. (ret.); Rollo, pp. 198-237.

2 Id., p. 273.

3 Id., pp. 120-155.

4 Original Records, pp. 1-3.

5 Id., p. 42.

6 Rollo, pp. 201-212.

7 TSN, December 15, 1993, pp. 18-19; TSN, December 20, 1993, pp. 23-24.

8 TSN, January 17, 1994, pp. 7-10.

9 TSN, January 17, 1994, p. 24.

10 Rollo, pp. 120-155.

11 See Note #1, supra.

12 See Note #2, supra.

13 People vs. Cubcubin, Jr., 413 Phil. 249 (2001), citing People vs. Gallarde, 382 Phil. 718 (2000).

14 People vs. Sevileno, 425 SCRA 247 (2004), citing People vs. Navarro, 407 SCRA 221 (2003).

15 Comment, pp. 20-21; Rollo, pp. 302-303.

16 People vs. Campuhan, 385 Phil. 912 (2000).

17 61 Phil. 703, 705 (1935).

18 Ibid.

19 Reyes, The Revised Penal Code, 1998 Edition, p. 91.

20 Rollo, pp. 222-223.

21 People vs. Canlas, et al., 423 Phil. 665 (2001).

22 431 Phil. 786 (2002).

23 416 SCRA 506 (2003).

24 Sec. 14(2), Art. III.

25 Aquino, Revised Penal Code, 1997 ed., Vol. III, p. 81.

26 Ibid., citing People vs. Lilian Gozum, CA 54 O.G. 7409; People vs. Reyes, 60 Phil. 369 [1934].
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-26298 January 20, 1927

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.

Hermogenes Caluag for appellant.

Attorney-General Jaranilla for appellee.

OSTRAND, J.:

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.

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 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 to the commission of the crime; it is sufficient if there is a penetration of the 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 the privates of
a child of that age can be entered by a man's male organ to the hymen and the defendant was found guilty of the
consummated crime rape.

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 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 be imposed in its maximum degree.

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 twelve years of prision mayor, with the accessory penalties prescribed by law, and
with the costs in both instances. So ordered.

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

Separate Opinions

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. 153675 April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine

Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as
amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by
respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated
December 20, 2001 allowing Juan Antonio Muñoz, private respondent, to post bail; and (2) the Order dated April 10,
2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong
Special Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition
alleges that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack or excess
of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee.

The facts are:

On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an
"Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997.

On July 1, 1997, Hong Kong reverted back to the People’s Republic of China and became the Hong Kong Special
Administrative Region.

Private respondent Muñoz was charged before the Hong Kong Court with three (3) counts of the offense of
"accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201
of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law
of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted,
he faces a jail term of seven (7) to fourteen (14) years for each charge.

On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional
arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which,
in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent.

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That
same day, the NBI agents arrested and detained him.

On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition
and mandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the
validity of the Order of Arrest.

On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.

On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520,
praying that the Decision of the Court of Appeals be reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of
the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001.

Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC
of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to
Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,- a
petition for bail which was opposed by petitioner.

After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that
there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk."

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then
raffled off to Branch 8 presided by respondent judge.

On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for
bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post
bail, thus:

In conclusion, this Court will not contribute to accused’s further erosion of civil liberties. The petition for bail is granted
subject to the following conditions:

1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear
and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and
processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond
will be forfeited in favor of the government;

2. Accused must surrender his valid passport to this Court;

3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold
departure order before this Court even in extradition proceeding; and

4. Accused is required to report to the government prosecutors handling this case or if they so desire to the
nearest office, at any time and day of the week; and if they further desire, manifest before this Court to
require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition
that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that
the corresponding lien/annotation be noted therein accordingly.

SO ORDERED.

On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent
judge in his Order dated April 10, 2002.

Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to
lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or
statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal
proceedings.

In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights
extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of
one’s liberty.

Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:

Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is
strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this
Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail.

In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch
42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio
V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition
proceedings. It is "available only in criminal proceedings," thus:

x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as
Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of
Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render
judgments of conviction or acquittal.

Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who
should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be
proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J.,
later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the
presumption of innocence is not at issue.

The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ
of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in
criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds
application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion"
(Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely
emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that
the right is available even in extradition proceedings that are not criminal in nature.

At first glance, the above ruling applies squarely to private respondent’s case. However, this Court cannot ignore the
following trends in international law: (1) the growing importance of the individual person in public international law
who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human
rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in
fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our
fundamental law, on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the worth of the individual person and
the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of
international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to
states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials
after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as
violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg
principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former
Yugoslavia. These significant events show that the individual person is now a valid subject of international law.

On a more positive note, also after World War II, both international organizations and states gave recognition and
importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the
Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every
person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized
as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of
Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution, 3the principles
set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the
International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the
rights enshrined therein are the rights of every person to life, liberty, and due process.

The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human
rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of
our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for
human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person
to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court,
to enable it to decide without delay on the legality of the detention and order their release if justified. In other words,
the Philippine authorities are under obligation to make available to every person under detention such remedies
which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this
Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various
international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a
reexamination of this Court’s ruling in Purganan is in order.

First, we note that the exercise of the State’s power to deprive an individual of his liberty is not necessarily
limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and
quarantine,4 have likewise been detained.

Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history.
Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This
Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been
allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking
into cognizance the obligation of the Philippines under international conventions to uphold human rights.

The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the
necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee
had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the
most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery
used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings.

In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals
against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of
deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in
sustaining the detainee’s right to bail.

If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition
cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no
reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the
innocence or guilt of the person detained is not in issue.

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the
various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights.
Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the
right to liberty of every individual is not impaired.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the
removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to
enable the requesting state or government to hold him in connection with any criminal investigation directed against
him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or
government."

Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of
one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to
surrender him to the demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal,
an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such
punishment may follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between
different nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee. 12 Nor is it a full-
blown civil action, but one that is merely administrative in character.13 Its object is to prevent the escape of a person
accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or
punishment.14

But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of
liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is
also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law)
which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the
interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the
"provisional arrest of the accused, pending receipt of the request for extradition;" and that release from
provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received
subsequently."

Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A
potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to
the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of
extradition, but the length of time of the detention should be reasonable.

Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until
December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for
over two (2) years without having been convicted of any crime. By any standard, such an extended period of
detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty
which prompted the extradition court to grant him bail.

While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision
prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.

The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the
latter, the standard of due process is premised on the presumption of innocence of the accused.
As Purganancorrectly points out, it is from this major premise that the ancillary presumption in favor of admitting to
bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest
warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the
assumption that such extraditee is a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears
the onus probandi of showing that he or she is not a flight risk and should be granted bail.

The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the
Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these
obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not
necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditee’s
rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but
also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee
of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be
the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil
cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot
likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our
jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail
in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher
than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is
not a flight risk and will abide with all the orders and processes of the extradition court.

In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk.
Consequently, this case should be remanded to the trial court to determine whether private respondent may be
granted bail on the basis of "clear and convincing evidence."

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private
respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the
cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with
dispatch.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:
REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Asscociate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Asscociate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Asscociate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO DANTE O. TINGA

Associate Justice Asscociate Justice

CANCIO C. GARCIA PRESBITERO J. VELASCO, JR.

Associate Justice Asscociate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

1 G.R. No. 148571, September 24, 2002, 389 SCRA 623, 664.

2 90 Phil. 70 (1951).

3Sec. 2, Art. II states "The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with all nations."

4 In cases involving quarantine to prevent the spread of communicable diseases, bail is not available.
See State v. Hutchinson, 18 So.2d. 723, 246 Ala. 48; Varholy v. Sweat, 15 So.2d. 267, 153 Fla. 571, Baker
v. Strautz, 54 NE2d. 441, 386 lll. 360.
5
12 Phil. 490 (1909).

6 Supra, footnote 2.

7 90 Phil. 256 (1951).

8Factor v. Laubenheimer, 290 US 276, 78 L. Ed. 315, 54 S. Ct. 101; Terlindon v. Ames, 184 US 270, 46
L.Ed. 534, 22 S.Ct. 484; Fong Yue Ting v. US, 149 US 698, 37 L.Ed. 905, 13 S.Ct. 1016; Fitzpatrick v.
Williams, 46 F2d. 40; US v. Godwin, 97 F. Supp. 252, affd. 191 F2d. 932; Dominguez v. State, 234 SW 701,
90 Tex. Crim. 92.

9 Secretary of Justice v. Lantion, G.R. No. 139465, October 17, 2000, 343 SCRA 377.

10 US ex rel Oppenheim v. Hecht, 16 F2d. 955, cert den. 273 US 969, 71 L. Ed. 883, 47 S. Ct. 572.

11 State v. Chase, 107 So. 541, 91 Fla. 413; State v. Quigg, 108 So. 409, 91 Fla. 197.

12
Benson v. McMahon, 127 US 457, 32 L. Ed. 234, 8 S. Ct. 1240; Jimenez v. Aristequieta, 311 F2d. 547,
stay den. 314 F2d. 649.

13 Spatola v. US, 741 F. Supp. 362, Affd. 925 F2d. 615.

14 Re Henderson, 145 NW 574, 27 ND 155; State ex rel Tresoder v. Remann, 4 P2d. 866, 165 Wash. 92.

15 Beaulieu v. Hartigan, 554 F.2d 1.

 FIRST DIVISION

G.R. No. 151251 May 19, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
HOMER MAGDARAOG y SALONA, MANUEL MAGDARAOG y SALONA, DAVID MAGDARAOG y SALONA and
ARIEL MAGDARAOG y SALONA, accused.
HOMER MAGDARAOG y SALONA and MANUEL MAGDARAOG y SALONA, appellants.

DECISION

PANGANIBAN, J.:

The bare denial and alibi of the accused cannot prevail over the positive declarations of an eyewitness who credibly
testified that they were the assailants. In the present case, these defenses are not only intrinsically weak, but also
lack believable corroboration.

The Case
Homer and Manuel Magdaraog appeal the November 28, 2001 Decision 1 of the Regional Trial Court (RTC) of Pasig
City (Branch 163) in Criminal Case No. 118229-H, finding them guilty of murder and sentencing them to reclusion
perpetua. The dispositive part of the Decision is worded thus:

"WHEREFORE, accused Homer Magdaraog and Manuel Magdaraog are hereby convicted of the crime of
murder under Article 248 of the Revised Penal Code and sentenced to suffer the penalty of reclusion
perpetua with all the accessory penalties provided by law and to pay the costs.

"The accused are further sentenced to pay the legal heirs of the victim actual damage[s] in the amount of
₱30,000.00, ₱50,000.00 as civil indemnity and ₱50,000.00 by way of moral damages with interest at the
rate of 12% per annum from this date until fully paid." 2

The Amended Information,3 dated July 26, 2000, charged appellants together with their two other brothers, David and
Ariel Magdaraog, as follows:

"On or about May 8, 2000, in Taguig, Metro Manila, and within the jurisdiction of this Honorable Court, the
accused, conspiring and confederating together and all of them mutually helping and aiding one another,
armed with an icepick with intent to kill, and by taking advantage of superior strength, evident premeditation
and by means of treachery, did then and there willfully, unlawfully and feloniously stab one Angel Martirez
Jr. y Agonos, on the vital parts of his body, thereby inflicting upon the latter multiple stab wounds which
directly caused hi[s] immediate death."4

Upon their arraignment on June 13, 2000,5 Homer and Manuel Magdaraog, assisted by their counsel de
parte,6pleaded not guilty. The two other accused -- David and Ariel Magdaraog -- were and have remained at
large. Hence, trial in regard only to appellants proceeded in due course. Thereafter, the court a quo rendered the
assailed Decision.

The Facts

Version of the Prosecution

In its Brief,7 the Office of the Solicitor General (OSG) presents the prosecution’s version of the facts as follows:

"On May 8, 2000, on or about 5:00 P.M., Homer, Manuel and David Magdaraog arrived at the vulcanizing
shop of Rogelio Brazal, located at AT[U] Site, Fort Bonifacio, Taguig, and had a talk with their youngest
brother, Ariel, who worked as a tireman at the shop. Thereafter, the Magdaraog brothers, together with
Rogelio Brazal and a certain Salvador A[suela], Jr., had a drinking spree at the vulcanizing shop.

"Around 9:30 in the evening, they transferred to the videoke restaurant just beside the vulcanizing shop. A
little past 10:00 P.M., the owner of the restaurant told them that it was closing time and so Rogelio
proceeded back to his vulcanizing shop together with Salvador. After a few minutes, Rogelio also saw the
Magdaraog brothers leave the restaurant and, passing by the vulcanizing shop, the brothers told Rogelio
that they were leaving.

"What happened next was that Rogelio heard a commotion outside his shop and when he looked out he saw
Angel Martirez, another tireman at the vulcanizing shop, being chased by the Magdaraog brothers. When
Angel stumbled and fell down, he was mobbed and mauled by the brothers. Rogelio ran towards Angel and
the brothers left. Rogelio lifted Angel who was already unconscious and sought the help of the people near
the premises. Angel was brought to the hospital but he did not reach the hospital alive.

"The incident was immediately reported to the police and investigators arrived at the place. During the
investigation, Rogelio Brazal saw Homer Magdaraog walking near the place of the incident. He was
arrested, and brought to the Southern Police District the following day. Manuel was spotted near the
vulcanizing shop on May 9, 2000 and was invited by the police for questioning and was later arrested.

"Dr. Rolando C. Victoria conducted the post-mortem examination of the body of Angel Martirez and found
multiple punctured wounds at the left side and back left side of the anterior abdominal wall. The most fatal
 wound inflicted was the punctured wound at the back of the abdomen. Aside from contusions and abrasions,
the body of the victim bore fifteen (15) punctured wounds, ten (10) of which were fatal." 8

Version of the Defense

In their Brief,9 appellants submit their own version of the facts as follows:

"HOMER MAGDARAOG averred that on 8 May 2000, at around 10:30 in the evening, he, together with
Rogelio Brazal, Manuel Magdaraog, Ariel Magdaraog, David Magdaraog, Salvador Asuela and Eleazar
Miday were drinking at the videoke restaurant located at the corner of At[u] St., Fort Bonifacio besides the
vulcanizing [shop] of Rogelio Brazal. Eleazar Miday invited him because it was the [former’s birthday]. From
the said birthday celebration, he alone went home at around 10:00 o’clock in the evening [to his and Ariel’s]
residence in Bayan-[B]ayanan, Marikina City. He was not able to reach their home because he was arrested
by the military police and was brought to the South Sector where he was investigated. He denied any
involvement in the killing of Angel Martirez, Jr. In fact, he does not have any misunderstanding with the
victim. He learned that Angel Martirez was stabbed in a rumble when he was already on his way home. He
further testified that the rumble started inside the videoke restaurant when somebody hit his face. He did not
recognize the person who hit his face because after he was hit, he felt dizzy and fell down. However,
because there was already a rumble, he immediately ran away and went home.

"MANUEL MAGDARAOG averred that on 8 May 2000 at around 5:00 o’clock in the afternoon, he, together
with Homer Magdaraog, Ariel Magdaraog, David Magdaraog, Eleazar M[i]day, Salvador Asuela and Rogelio
Brazal were drinking in the vulcanizing shop owned by Rogelio Brazal located at At[u], Fort Bonifacio. They
started drinking at 3:00 o’clock in the afternoon. At around 5:00 o’clock in the afternoon, they went inside the
videoke restaurant near the vulcanizing shop. While they were already drinking inside, he went to the
comfort room to urinate. When he went out of the comfort room, he saw people scampering. Upon seeing
Homer, [the latter] told him that there was a rumble[;] that Ariel stabbed Angel when the latter boxed the
former; and that the fist fight started [in] the restaurant followed by a chase. He was the only one who was
able to go home that night in Bicutan because Homer was arrested by the police near the place of [the]
incident. Upon reaching home, his other brother Ariel arrived and told him that he [Ariel] stabbed Angel.
Thereafter, Ariel left and went to the house of their auntie[,] also in Bicutan. At present, he does not know
where [Ariel is]. The following day, when he visited his brother, Homer, in the South Sector, Fort Bonifacio
Jail, Rogelio Brazal pinpointed him and implicated him in the stabbing of Angel Martirez. Thereafter, without
having [the chance to talk] to Rogelio, the latter left and he was hailed." 10

Ruling of the Trial Court

The court a quo accorded full faith and credence to the testimony of Prosecution Witness Rogelio Brazal, who
positively identified appellants as the persons who had chased and ganged up on Angel Martirez Jr. when he fell to
the ground. The trial court added that Brazal’s failure to see the weapon used to stab the victim was of no moment. It
pointed out that a combination of all the pieces of circumstantial evidence, presented not only by the prosecution but
also by the defense, clearly and convincingly established the participation of all the accused in mauling, stabbing and
eventually killing Martirez.

Appellants’ defense, consisting of denial and alibi was rejected thus:

"The accused’ defense of denial and alibi is undeserving of serious consideration and credence. Such
negative and self-serving assertion of the accused cannot prevail over the positive and credible testimonies
of Rogelio [Brazal] and PO2 Wilfredo Lim[,] to both of whom no improper motives had been attributed. It is
the view of the Court that the story of the accused is an eleventh hour concoction to evade criminal
liability."11

The court a quo held that the killing was qualified by abuse of superior strength. It further held that there was
conspiracy, as evidenced by the acts of the accused -- simultaneously chasing and ganging up on the victim, as well
as helping one another in mauling him when he fell to the ground.

Hence, this appeal.12

 Issues

In their Brief, appellants raise the following alleged errors for our consideration:

"I.

The court a quo gravely erred in giving full faith and credence to the testimony of prosecution witness
Rogelio Brazal.

"II.

The court a quo gravely erred in finding [the] accused-appellants guilty beyond reasonable doubt of the
crime of murder."13

Essentially, they question the sufficiency of the prosecution evidence, consisting mainly of the testimony of a single
eyewitness.

The Court’s Ruling

After a careful scrutiny of the evidence on record, we sustain the conviction of appellants, but modify the award of
civil liabilities.

Main Issue:

Sufficiency of Prosecution Evidence

Pertinently, the determination of the main issue hinges on the credibility of Rogelio Brazal, the lone prosecution
eyewitness. Appellants cast doubt on his presence at the scene of the alleged crime at the time of its commission.
They submit that he did not really witness the stabbing of Angel Martirez Jr. Their claim is based on the statement of
Brazal during the cross-examination that he did not see the weapon used by the perpetrators. Such lapse allegedly
rendered his testimony patently unbelievable, for to be present at the scene of the crime yet not see the weapon used
by the assailants does not conform to ordinary human experience and observation. They conclude that when Brazal
arrived at the locus criminis, he merely saw Martirez lying on the ground, but not really who had ganged up on the
victim -- who had mauled, stabbed and killed him.14

We are not persuaded.

It is doctrinal that the evaluation by the trial court of the credibility of testimonies is accorded the highest respect, for it
has the untrammeled opportunity to observe directly the demeanor of the witnesses and thus to determine whether
they are telling the truth.15 In the present case, appellants have not shown any reason for us to overturn the findings
of the RTC. An overall scrutiny of the records leads us to no other conclusion than that the trial court was correct in
finding that the accused-appellants were responsible for the killing of the victim.

In plain words, Eyewitness Brazal clearly detailed the sequence of events that had transpired on the evening of May
8, 2000:

"Q When Homer, Manuel and David arrived at your vulcanizing shop, what happened, if any?

A The brothers talked and we had a drinking spree.

Q When you said ‘kami nag-inuman’, to whom are you referring as ‘kami’?

A I, Salvador ‘Junior’ Asuela and the brothers, Homer, Manuel, David and Ariel.

Q What else happened, if any, Mr. Witness?

 A At about 9:30 we transferred and proceeded to the Videoke Restaurant beside my vulcanizing shop.

Q What happened, if any?

A We sung happily, thereafter, the owner told us that it is already closing time.

Q What else happened?

A Salvador and I proceeded to my vulcanizing shop.

Q What else happened after that?

A Then, the group went out and bade me goodbye, and I told them to take care of themselves.

Q What else happened after that?

A I heard a commotion and when I looked out I saw my tireman, Angel Martirez, being chased by the group
of the brothers, then Angel fell down and that was the time when he was mobbed and hit by the brothers
(dinumog ng magkakapatid at binanatan).

Q And, what happened after you saw the group of the accused mauling the victim?

A I ran to the place then I saw the brothers leaving Martirez behind.

Q What else did you do?

A I lift [Angel] Martirez who was then unconscious and I sought the help of the people who are in the
premises.

Q What happened next, if any?

A He was boarded on a jeep and brought to the hospital but I did not go with them anymore." 16

On cross-examination, he testified thus:

"Q Mr. Witness, when the restaurant was about to close shop you were with the same group when you
exit[ed] from that place at the same time?

xxx xxx xxx

A I was ahead and I went to my vulcanizing shop.

Q You left them for how long before they came out?

A I cannot remember how long, but after a few minutes they went out.

Q You really don’t know when they went outside because you went ahead, isn’t it?

A It was past 10:00.

Q Did you see them c[o]me out of the place?

A Yes, Sir, because they told me they’re leaving.

 Q You did not see them c[o]me out of the place but you know they went out because they asked your
permission that they will go out, isn’t it?

A I saw them went out because there was no other way going outside except the way along my vulcanizing
shop.

Q Mr. Witness, you did not see any weapon when the group was allegedly mauling this Angel Martirez, isn’t
it?

A None, Sir.

Q What you saw is that somebody was mauling somebody, isn’t it?

A Yes, Sir.

Q You did not even know who was mauling who, until such time that you went to the place and discovered
that there was someone who mauled someone, isn’t it?

A There was light and I saw that Angel was mauled." 17

There is no doubt that Brazal witnessed the assault on the victim by appellants and their two other brothers, Ariel and
David Magdaraog. Brazal was firm and consistent in his testimony, thus revealing his certainty about what he saw.
Indeed, the striking consistency and definiteness of his testimony and of his narrations in his Sworn
Statement18 executed on May 9, 2000 -- only a day after the incident -- manifest utter truthfulness or veracity.

Appellants and their brothers were the only persons Brazal saw ganging up on and simultaneously mauling Martirez
when the victim fell to the ground. After the brothers ran away, Brazal immediately went to the unconscious Martirez
and sought help in bringing him to the hospital, but the latter did not make it. The series of events as narrated by the
lone eyewitness firmly point to the accused, and to no other, as the perpetrators of the crime.

Brazal was categorical and positive in identifying appellants as the assailants. He likewise remained unyielding all
throughout his testimony.

This Court has consistently held that the testimony of a lone eyewitness, if found by the trial court to be positive and
credible, is sufficient to support a conviction. This guiding principle holds, especially when the testimony bears the
earmarks of truth and sincerity; more so when it is delivered spontaneously, naturally and straightforwardly. 19

The failure of Brazal to see the weapon used by the assailants does not detract from his positive identification of
them. Such weapon is not, after all, an element of either homicide or murder.20 As it has been established that the
victim died from multiple puncture wounds, the failure of Brazal to see the weapon is of no consequence and cannot
diminish his credibility.

It must be pointed out that since puncture wounds are usually small in diameter, they are not immediately
visible.21Furthermore, such small wounds usually do not spout plainly visible quantities of blood, 22 as the bleeding
normally occurs inside.23

It is a common experience that the perception of individuals may vary, depending on their location and the extent of
their peripheral vision.24 The failure of Brazal to see the weapon that was used may reasonably be explained by his
position relative to appellants and the other accused, as well as by the fact that he saw them ganging up on the victim
who was lying on the ground.

This Court has long acknowledged the verity that different human minds react differently when confronted by a
sudden and shocking event; and that there are witnesses who may ignore certain details that might have appeared to
them to be insignificant at the time, but that would seem noteworthy to other persons under the same
circumstances.25 Witnesses are not expected to remember perfectly every single detail of an incident. 26
Furthermore, what is vital in the testimony of Brazal is not his knowledge of the weapon used, but the fact that he saw
appellants ganging up on Martirez right before the victim died. The identification and the presentation of the murder
weapon are not indispensable to the prosecution’s cause when the accused has positively been identified. 27

It has not been shown that Brazal was moved by any ill motive to testify falsely against appellants. Even they
admitted, on cross-examination, that they had no personal grudge against or misunderstanding with him. 28 Hence, his
positive and categorical declarations on the stand under solemn oath should be given full faith and credence. 29

Furthermore, the fact that Brazal is the cousin of the victim,30 far from tainting the former’s testimony with bias, even
renders it more credible. It would be unnatural for a relative, who would normally be interested in bringing the real
culprits to justice, to accuse someone else of having committed the crime.31

Denial and Alibi

The presence of appellants at the scene of the crime was not disputed, although both of them denied any
responsibility. Homer Magdaraog claimed that when he was hit on the face, he felt dizzy and fell down; but he
immediately stood up and left the restaurant, as there was already a rumble and he did not want to get involved. On
the other hand, Manuel Magdaraog claimed that he was in the comfort room urinating when the killing occurred, the
truth of which was denied by Brazal on rebuttal.32 Appellants insist that their mere presence at the scene of the
incident did not mean that they participated in the crime. We are not convinced.

As against the positive identification by Brazal, all that Homer and Manuel could offer in defense were alibi and
denial. After a careful review of the records, we agree with the trial court that their version of the incident is far from
credible.

As previously stated, such defense is considered inherently weak and constitutes an "unstable sanctuary for felons"
because of the facility with which it can be concocted.33 Between the positive and categorical narrations of Brazal and
the negative averment of appellants, the former is entitled to greater evidentiary weight. 34 This principle holds true
especially in this case, in which the specifics of the alibi dovetail together too neatly to deserve credence.
Furthermore, the alibi is supported solely by appellants themselves.

Conspiracy

The evidence on record shows conspiracy among appellants and the other accused. Conspiracy is deducible from
their acts before, during and after the commission of the crime -- acts indicative of a joint purpose, concerted action
and concurrence of sentiment.

To establish conspiracy, it is not essential that there be proof of the existence of a previous agreement to commit a
crime.35 It is sufficient that, at the time of commission, the accused had the same purpose and were united in its
execution. In conspiracy, it matters not who among them actually killed the victim. The act of one is the act of all;
hence, it is not necessary that all the participants deliver the fatal blow. 36

Manuel’s identification of Ariel as the one who stabbed Martirez does not free the accused from criminal
responsibility. By their acts at the time of the aggression, they manifested a common intent or desire to kill him, so the
act of one became the act of all. Their coordinated escape from the crime scene further confirmed the existence of
conspiracy.

Abuse of Superior Strength

The trial court correctly appreciated the circumstance of abuse of superior strength, considering that the malefactors
had taken advantage of their number in ganging up on and mauling the victim as he fell to the ground -- unarmed,
obviously overpowered and helpless. Hence, the trial court did not err in finding appellants guilty of murder.

Despite affirming their conviction, we nonetheless modify the monetary awards.

We affirm the award of ₱50,000 as civil indemnity ex delicto for the death of Angel Martirez, and ₱50,000 for moral
damages arising from the proven mental suffering of his mother and brother as a result of his untimely death.
The award of ₱30,000 for actual damages is improper, however for only the amount of ₱20,000 representing funeral
expenses was duly proven by competent documents 37 during the trial. In People v. Andres,38 the Court said:

"[W]e declared in the case of People v. Villanueva that:

‘… when actual damages proven by receipts during the trial amount to less than ₱25,000, as in this
case, the award of temperate damages for ₱25,000 is justified in lieu of actual damages of a lesser
amount. Conversely, if the amount of actual damages proven exceeds ₱25,000, then temperate
damages may no longer be awarded; actual damages based on the receipts presented during trial
should instead be granted.’

"The victim’s heirs should, thus, be awarded temperate damages in the amount of ₱25,000." 39

In the light of the above ruling, we award the heirs of Martirez the amount of ₱25,000 as temperate damages, in lieu
of actual damages.

Lastly, loss of earning capacity cannot be awarded in the absence of competent proof therefor. "Compensation for
lost income is in the nature of damages and requires due proof of the amount of the damage suffered. For loss of
income due to death, there must be unbiased proof of the average income of the deceased. Also, the award for lost
income refers to his net income; that is, his total income less his average expenses." 40 In this case, Henry Martirez
gave only a bare self-serving testimony on the income of his brother.41 No proof of the latter’s expenses was
adduced.

WHEREFORE, the assailed Decision is AFFIRMED, with the MODIFICATION that the award of ₱30,000 for actual
damages is deleted. In lieu thereof, however, the heirs of Angel Martirez Jr. are awarded the amount of ₱25,000 as
temperate damages. Costs against appellants.

SO ORDERED.

Davide, Jr.*, Ynares-Santiago**, Carpio, and Azcuna, JJ., concur.

Footnotes

* On official leave.

** Working Chairman.

1 Rollo, pp. 16-21; records, pp. 116-121. Written by Judge Leili Suarez Acebo.

2 Assailed Decision, pp. 5-6; rollo, pp. 20-21; records, pp. 120-121.

3 Signed by Prosecutor II Eduardo R. Garcia. The earlier Information dated April 3, 2000, was amended to
include the two other accused, David Magdaraog y Salona and Ariel Magdaraog y Salona.

4 Rollo, p. 6; records, p. 40.

5 Order dated June 13, 2000; records, p. 17.

6 Atty. Franciso de Borja; later replaced by counsel de oficio, Atty. Danilo T. Lim.

7Rollo, pp. 59-74. Signed by Assistant Solicitors General Carlos N. Ortega and Renan E. Ramos and
Solicitor Ma. Lourdes B. Alarcon-Leones.

8 Appellee’s Brief, pp. 3-5; rollo, pp. 63-65. Citations omitted.

9
Rollo, pp. 33-43. Signed by Attys. Amelia C. Garchitorena and Pastor Archimedes P. Morales of the Public
Attorney’s Office (PAO).

10 Appellants’ Brief, pp. 5-6; rollo, pp. 41-42.

11 Assailed Decision, p. 14; rollo, p. 19; records, p. 119.

12This case was deemed submitted for decision on September 9, 2003, upon this Court’s receipt of
appellants’ Manifestation that they were no longer filing a Reply Brief. Appellants’ Brief was received by the
Court on December 26, 2002, and appellee’s Brief on May 6, 2003.

13 Appellants’ Brief, p. 1; rollo, p. 37. Original in upper case.

14 Id., pp. 8 & 44.

15People v. Pacuancuan, GR No. 144589, June 16, 2003; People v. Gallego, GR No. 127489, July 11,
2003; People v. Rios, 389 Phil. 338, June 19, 2000.

16 TSN, July 25, 2000, pp. 5-7.

17 TSN, July 25, 2000, pp. 13-15.

18 Exhibit "A"; records, p. 67.

19 People v. Hillado, 367 Phil. 29, May 24, 1999.

20 People v. Piedad, 393 SCRA 488, December 5, 2002.

21
Solis, Legal Medicine, 1987, p. 271.

22 Ibid.

23 Ibid.

24 People v. Visaya, 352 SCRA 713, February 26, 2001.

25 Ibid.

26 People v. Rios, supra.

27 People v. Fernandez, 385 SCRA 38, July 23, 2002.

28 TSN, March 27, 2001, p. 13; TSN, July 31, 2001, p. 13.

29People v. Caballero, 400 SCRA 424, April 2, 2003; Ureta v. People, 387 SCRA 359, August 15,
2002; People v. Baccoy, 388 SCRA 641, September 14, 2002; People v. De la Cruz, 349 SCRA 124,
January 16, 2001; People v. Arellano, 390 Phil. 273, June 30, 2000.

30 See Exhibit "A"; records, p. 67.

31People v. Lachica, GR No. 131915, September 3, 2003; People v. Bagcal, 350 SCRA 402, January 29,
2001.
32
"Q Manuel Magdaraog testified that he was inside the comfort room when the alleged stabbing and
rumble took place on May 8, 2001, what can you say to that?

A That is not true, sir[.] All of them went out of the video bar.

Q That he has nothing to do with the rumble, what can you say to that?

A That night, he was one of those who ganged up Angel Martirez." (TSN, November 6, 2001, p. 4.)

33 People v. Visaya, supra.

34 People v. Seduco, 349 SCRA 147, January 16, 2001.

35 People v. Seduco, supra.

36 People v. Caballero, supra; Ureta v. People, supra.

37 Exhibit "D"; records, p. 70.

38 GR Nos. 135697-98, August 15, 2003.

39 Id., pp. 18-19, per Corona, J.

40People v. Esponilla, GR No. 122766, p. 24, June 20, 2003, per Callejo Sr., J.; See also People v.
Lachica,supra; People v. Esponilla, supra; People v. Cuenca, 375 SCRA 119, January 29, 2002.

41 TSN, August 15, 2000, p. 13.

 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.

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 penalty must be imposed in the
maximum degree.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 him. The merchandise in question, attached to the record as Exhibit A, shall be
returned to the lawful owner, T. Murakami. So ordered.

Torres, Johnson, Street, Avanceña and Fisher, JJ., concur.

 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 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.

The Lawphil Project - Arellano Law Foundation

 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.

DECISION
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[2] dated 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 oclock 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 oclock 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 oclock 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;

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 oclock 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 oclock 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 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]ayor medium as minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS
of [r]eclusion [t]emporal medium 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.[6] Thus, 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[7] quoted the following factual findings of the trial court:

Edwin Santos, a resident of Mambaling, Cebu City stated that on June 1, 1985 at 6:00 oclock 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 oclock 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 oclock 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 car 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 Doctors
Hospital. (p. 20, ibid.)

Rogelio Presores corroborated in substance the testimony of Edwin Santos, being one of those who were in the car
driven by Nelson Tiempo to the residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14, 1987)

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 Lims 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 Doctors 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
victims 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 Doctors
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 with 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.)

xxxxxxxxx

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 victims Necropsy Report,
(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 latters 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 Doctors 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 Doctors 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 victims 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 court [9] thus:

xxx 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 oclock 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 oclock 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] 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 oclock and 11:00 oclock 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 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 oclock 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 oclock 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 oclock in the evening, he saw accused lying on a bamboo bench in the yard of the house of the deceased.

At past 10:00 oclock 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 oclock 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 oclock 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 xxx 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 latters 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 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 accuseds problem was a police 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 oclock 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 oclock 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 oclock 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).

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 oclock 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 in complete 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 oclock 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 oclock 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 oclock 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.

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 Castao 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 then 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 xxx the bond put up by 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 issued a Voters 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 Governors 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 oclock 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 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 complainants 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 Cabaero, 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 courts 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

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

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]

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 Courts Ruling

The appeal is devoid of merit.

First Issue:

Credibility of Witnesses and Sufficiency of Evidence

Well-entrenched is the tenet that this Court will not interfere with the trial courts assessment 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 accuseds 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 in the instant case to justify a reversal or
modification of the findings of the trial court and 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.
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 Thats 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

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 xxx 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?
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 Berongas extrajudicial statement was obtained through violence and intimidation. Citing
the res inter alios acta rule, they also argue that the said statement is inadmissible against Sabalones. Specifically,
they challenge the trial courts reliance on the following portions of Berongas 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 clarify, [t]hat you watch out for mistake[n] in
identity, and after that shout, gunshots followed. [sic] Then after the gun-shots Roling went back inside still
carrying the carbine and shouted: GATHER THE EMPTY SHELLS AND MEO[,] YOU BRING A FLASHLIGHT,
 and then I was called by Meo to help him gather the empty shells of the carbine and also our third companion
to gather the empty shells.
These arguments have no merit. In the first place, it is well to stress that appellants were convicted based primarily
on the positive identification of the two survivors, Edwin Santos and Rogelio Presores, and not only on the extrajudicial
statement, which merely corroborates the eyewitness testimonies. Thus, said arguments have no relevance to this
case. As the Court held in People vs. Tidula:[35] Any allegation of violation of rights during custodial investigation is
relevant and material only to cases in which an extrajudicial admission or confession extracted from the accused
becomes the basis of their conviction.
In any case, we sustain the trial courts holding, as affirmed by the Court of Appeals, that the extrajudicial statement
of Beronga was executed in compliance with the constitutional requirements. [36] Extrajudicial confessions, especially
those which are adverse to the declarants interests are presumed voluntary, and in the absence of conclusive evidence
showing that the declarants consent in executing the same has been vitiated, such confession shall be upheld. [37]
The exhaustive testimony of Sgt. Miasco, who undertook the investigation, shows that the appellant was apprised
of his constitutional rights to remain silent and to have competent and independent counsel of his own choice. [38] Said
witness also stated that Beronga was assisted by Atty. Marcelo Guinto during the custodial investigation. [39] In fact,
Atty. Guinto also took the witness stand and confirmed that Appellant Beronga was informed of his rights, and that the
investigation was proper, legal and not objectionable. Indeed, other than appellants bare allegations, there was no
showing that Berongas statement was obtained by force or duress.[40]
Equally unavailing is appellants reliance on the res inter alios acta rule under Section 30, Rule 130 of the Rules
of Court, which provides:

The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence
against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.

Appellants assert that the admission referred to in the above provision is considered to be against a co-conspirator
only when it is given during the existence of the conspiracy. They argue that Berongas statement was made after the
termination of the conspiracy; thus, it should not be admitted and used against Sabalones.
The well-settled rule is that the extrajudicial confession of an accused is binding only upon himself and is not
admissible as evidence against his co-accused, it being mere hearsay evidence as far as the other accused are
concerned.[41] But this rule admits of exception. It does not apply when the confession, as in this case, is used as
circumstantial evidence to show the probability of participation of the co-accused in the killing of the victims[42] or when
the confession of the co-accused is corroborated by other evidence.[43]
Berongas extrajudicial statement is, in fact, corroborated by the testimony of Prosecution Witness Jennifer
Binghoy. Pertinent portions of said testimony are reproduced hereunder:
Q While you were at the wake of Jun Sabalones and the group were sitting with Roling Sabalones, what were they
doing?
A They were gathered in one table and they were conversing with each other.
xxxxxxxxx
Q On that same date, time and place, at about 10:00 [i]n the evening, can you remember if there was unusual
incident that took place?
A I heard over the radio at the Sabalones Family that a certain Nabing Velez was shot.
Q That [a] certain Nabing Velez was shot? What else xxx transpired?
A I observed that their reactions were so queer, - as if they were running.
xxxxxxxxx
Q In that evening of June 1, 1985, when you went there at the house of Jun Sabalones, have you seen an armalite?
A Yes, sir.
Q Where did you see this armalite?
A At the table where they were conversing.
 Q How many armalites or guns [did you see] that evening in that place?
A Two (2).
xxxxxxxxx
Q This armalite that you saw, - how far was this in relation to the groups of Sabalones?
A There (The witness indicating a distance of about 4 to 5 meters).
ATTY. KINTANAR:
Q When you looked xxx 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 xxx 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 its 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 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 complainants
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 prosecutions 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 seats. 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. xxx 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 x x x 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 in personae or mistake in the identity of the victims, rather 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. x x xOn 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
and 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.[54] These 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. [55] Rey 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 Revised 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 courts computation of eight (8) years 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 x x x. 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 victims 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
Doctors 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., (Chairman), Bellosillo, Vitug and Quisumbing, JJ., concur.

[1]
Penned by J. Jesus M. Elbinias and concurred in by JJ. Buenaventura J. Guerrero and B.A. Adefuin-Dela Cruz.
[2] CA Rollo, pp. 205-236.
[3] Presided by Judge Generoso A. Juaban.
[4] RTC Decision, pp. 31-32; CA Rollo, pp. 58-59.
[5] CA Decision, pp. 31-32; CA Rollo, pp. 235-236.
[6] SC Resolution of September 9, 1996; Rollo, p. 11.

[7]
The Appellees Brief was signed by Assistant Solicitor General Cecilio O. Estoesta and Solicitor Ma. Cielo Se-
Rondain; CA Rollo, pp. 171-178.
[8] Appellees Brief, pp. 7-14; CA Rollo, pp. 171-178.
[9] The Appellants Brief contained no statement of facts.
[10] RTC Decision, pp. 14-26; CA Rollo, pp. 41-53.

[11]The case was deemed submitted for resolution on August 29, 1997, upon receipt by the Court of the confirmation
of the detention of Appellant Beronga at the National Bilibid Prisons.
[12] Brief of Accused-Appellant Sabalones before the CA, pp. 3, 8, 21, 29 and 39, signed by Atty. Pedro L. Albino.
[13] CA Rollo, p. 78.
[14]
People v. Turingan, GR No. 121628, December 4, 1997; People v. Sumbillo, 271 SCRA 428, April 18, 1997; People
v. Ombrog, 268 SCRA 93, February 12, 1997; People v. Arce, 227 SCRA 406, October 26, 1993.
[15] People v. Aranjuez, GR No. 121898, January 29, 1998, per Romero, J.; People v. Castillo, 273 SCRA 22, June 12,
1997.
[16] RTC Decision, p. 26; CA Rollo, p. 53.
[17]
Del Mundo v. Court of Appeals, 252 SCRA 432, January 29, 1996, per Romero, J.; Aspi v. CA, 236 SCRA 94,
September 1, 1994; Coca-Cola Bottlers Philippines, Inc. v. CA, 229 SCRA 151, January 27, 1994.
[18] TSN, April 7, 1987, pp. 13-17.
[19] TSN, December 19, 1988, pp. 27-29.
[20] TSN, August 7, 1987, p. 10.
[21] TSN, October 15, 1987, p. 6.
[22] TSN, January 26, 1989, p. 14.
[23] TSN, December 19, 1988, p. 26.
[24] Ibid., pp. 28-29; TSN, April 7, 1987, pp. 14 and 23.
[25] 231 SCRA 414, March 24, 1994, per Puno, J.; People v. Satagoda, 221 SCRA 251, April 7, 1993.
[26] TSN, February 22, 1990, pp. 22-23.
[27] Ibid., pp. 8-9.
[28] TSN, April 20, 1990, pp. 3 and 5.
[29] TSN, December 11, 1990, pp. 1-4.

[30] TSN, April 20, 1990, p. 6. This was quoted in the CA Decision, pp. 20-21; CA Rollo, pp. 224-225.
[31] TSN, April 20, 1990, p. 4.
[32] CA Decision, p. 18; CA Rollo, p. 222.
[33]
TSN, April 7, 1987, p. 23.
[34]
People v. Briones, 202 SCRA 708, October 15, 1991, per Paras J.; citing People v. Vacal, 27 SCRA 24; People v.
Pueblas, 127 SCRA 746; People v. dela Cruz, 147 SCRA 359; People v. Aboga, 147 SCRA 404.
[35] GR No. 123273, July 16, 1998, per Panganiban, J.
[36] RTC Decision, p. 27; CA Rollo, p. 54.
[37]
People v. Nimo, 227 SCRA 69, October 5, 1993, per Romero, J.; People v. Luvendino, 211 SCRA 36, July 3, 1992;
People v. Quijano, 197 SCRA 761, May 31, 1991.
[38] TSN, May 31, 1989, pp. 4-23.
[39] TSN, June 2, 1989, pp. 4-10.
[40] Ibid., pp. 18-19 and 24-25.

[41] People v. Liwag, 225 SCRA 46, August 3, 1993; People v. Alegre, 94 SCRA 109, November 7, 1979.
[42] People v. Alvarez, 201 SCRA 364, September 5, 1991; People v. Vasquez, 113 SCRA 772, April 27, 1982.
[43]
People v. Victor, 181 SCRA 818, February 6, 1990; People v. Paz, 11 SCRA 667, August 31, 1964; People v.
Agdeppa, 30 SCRA 782, December 24, 1969.
[44] TSN, November 28, 1988, pp. 5-20.
[45] RTC Decision, p. 27; CA Rollo, p. 54.
[46] People v. Gaorana, GR Nos. 109138-39, April 27, 1998.
[47] CA Decision, p. 29; CA rollo, p. 233. Underscoring supplied.

[48]
People v. Pinto, Jr., 204 SCRA 9, 31, November 21, 1991, per Fernan, CJ; Calderon v.. People, 96 Phil. 216 (1954);
People v. Esteban, 103 SCRA 520, March 30, 1981.
[49]People v. Tulop, GR No. 124829, April 21, 1998; People v. Ballesteros, GR No. 120921, January 29, 1998; People
v. Sumbillo, supra.
[50]
People v. Arellano, GR Nos. 119078-79, December 5, 1997; People v. Apongan, 270 SCRA 713, April 4, 1997;
People v. Castillo, supra.
[51]
239 SCRA, December 28, 1994, per Romero, J.
[52] RTC Decision, p. 29; CA Rollo, p. 56.
[53] People v. Gomez, 251 SCRA 455, December 19, 1995, per Davide, Jr. J.
[54] People v. Castillo, GR No. 120282, April 20, 1998, per Panganiban, J.; People v. Maalat,, GR No. 109814, July 8,
1997; People v. Tuson, 261 SCRA 711, September 16, 1996.
[55] TSN, May 30, 1989, pp. 10, 22 and 23.
[56] Ibid., pp. 13 and 23.
[57] TSN, May 30, 1989, pp. 15 and 24.
[58] As earlier noted, the penalty for consummated murder is reclusion temporal, in its maximum period, to death.
[59] CA Decision, p. 31; CA Rollo, p. 235.

[60] People v. Cayabyab, 274 SCRA 387, June 19, 1997; People v. Dones, 254 SCRA 696, 710, March 13, 1996.
[61] TSN, February 12, 1988, p. 9
[62] Ibid., p. 11.
[63] Id., p. 12.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 171951 August 28, 2009

AMADO ALVARADO GARCIA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

QUISUMBING, J.:

For review on certiorari is the Decision1 dated December 20, 2005 of the Court of Appeals in CA-G.R.-CR No. 27544
affirming the Decision2 dated July 2, 2003 of the Regional Trial Court (RTC), Branch 9, Aparri, Cagayan, which found
petitioner Amado Garcia guilty beyond reasonable doubt of homicide. Contested as well is the appellate court’s
Resolution3 dated March 13, 2006 denying petitioner’s Motion for Reconsideration. 4

On February 10, 2000, petitioner was charged with murder in an Information that alleges as follows:

The undersigned, Provincial Prosecutor accuses AMADO GARCIA @ Manding of the crime of Murder, defined and
penalized under Article [248] of the Revised Penal Code, as amended by Republic Act No. 7659, committed as
follows:

That on or about September 29, 1999, in the municipality of Aparri, province of Cagayan, and within the jurisdiction of
this Honorable Court, the above-named accused, armed with a bottle, with intent to kill, with evident premeditation
and with treachery, did then and there wilfully, unlawfully and feloniously assault, attack, box, club and maul one
Manuel K. Chy, inflicting upon the latter fatal injuries which caused his death.

CONTRARY TO LAW.5

Upon arraignment, petitioner entered a not guilty plea. Thereafter, trial on the merits ensued.

The factual antecedents are as follows:

At approximately 11:00 a.m. on September 26, 1999, petitioner, Fidel Foz, Jr. and Armando Foz had a drinking spree
at the apartment unit of Bogie Tacuboy, which was adjacent to the house of Manuel K. Chy. At around 7:00 p.m., Chy
appealed for the group to quiet down as the noise from the videoke machine was blaring. It was not until Chy
requested a second time that the group acceded. Unknown to Chy, this left petitioner irate and petitioner was heard
to have said in the Ilocano vernacular, "Dayta a Manny napangas makaala caniac dayta." (This Manny is arrogant, I
will lay a hand on him.)6

On September 28, 1999, the group met again to celebrate the marriage of Ador Tacuboy not far from Chy’s
apartment. Maya Mabbun advised the group to stop singing lest they be told off again. This further infuriated
petitioner who remarked, "Talaga a napangas ni Manny saan ko a pagbayagen daytoy," meaning, "This Manny is
really arrogant, I will not let him live long."7

Yet again, at around 12:00 p.m. on September 29, 1999, the group convened at the house of Foz and Garcia. There,
petitioner, Foz, Jr. and Fred Rillon mused over the drinking session on the 26th and 28th of September and the
confrontation with Chy. Enraged at the memory, petitioner blurted out "Talaga a napangas dayta a day[t]oy a Manny
ikabbut ko ita." (This Manny is really arrogant, I will finish him off today.)8 Later that afternoon, the group headed to
the store of Adela dela Cruz where they drank until petitioner proposed that they move to Punta. On their way to
Punta, the group passed by the store of Aurelia Esquibel, Chy’s sister, and there, decided to have some drinks.

At this juncture, petitioner ordered Esquibel to call on Chy who, incidentally, was coming out of his house at the time.
Upon being summoned, the latter approached petitioner who suddenly punched him in the face. Chy cried out, "Bakit
mo ako sinuntok hindi ka naman [inaano]?" (Why did you box me[?] I’m not doing anything to you.)9 But petitioner
kept on assaulting him. Foz attempted to pacify petitioner but was himself hit on the nose while Chy continued to
parry the blows. Petitioner reached for a bottle of beer, and with it, struck the lower back portion of Chy’s head. Then,
Foz shoved Chy causing the latter to fall.

When Chy found an opportunity to escape, he ran towards his house and phoned his wife Josefina to call the police.
Chy told Josefina about the mauling and complained of difficulty in breathing. Upon reaching Chy’s house, the
policemen knocked five times but nobody answered. Josefina arrived minutes later, unlocked the door and found Chy
lying unconscious on the kitchen floor, salivating. He was pronounced dead on arrival at the hospital. The autopsy
confirmed that Chy died of myocardial infarction.

After trial in due course, the RTC of Aparri, Cagayan (Branch 9) found petitioner guilty beyond reasonable doubt of
homicide. The dispositive portion of the RTC decision reads:

WHEREFORE, the Court renders judgment:

1) Finding AMADO GARCIA guilty beyond reasonable doubt for the crime of HOMICIDE defined and
penalized by Article 249 of the Revised Penal Code and after applying in his favor the provisions of the
Indeterminate Sentence Law, hereby sentences him to suffer an indeterminate prison term of TEN (10)
YEARS OF PRISION MAYOR, as minimum, to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of
RECLUSION TEMPORAL as maximum;

2) Ordering him to pay the heirs of Manuel Chy the amount of FIFTY THOUSAND (₱50,000.00) PESOS, as
death indemnity; TWO HUNDRED THOUSAND (₱200,000.00) PESOS, representing expenses for the wake
and burial; THREE HUNDRED THOUSAND (₱300,000.00) PESOS, as moral damages; and THREE
HUNDRED THIRTY[-]TWO THOUSAND (₱332,000.00] PESOS, as loss of earning, plus the cost of this suit.

SO ORDERED.10

On appeal, the Court of Appeals affirmed the conviction in a Decision dated December 20, 2005, thus:

WHEREFORE, premises considered, appeal is hereby [DENIED] and the July 2, 2003 Decision of the Regional Trial
Court of Aparri, Cagayan, Branch [9], in Criminal Case No. 08-1185, is hereby AFFIRMED IN TOTO.

SO ORDERED.11

Petitioner moved for reconsideration but his motion was denied in a Resolution dated March 13, 2006.
Hence, the instant appeal of petitioner on the following grounds:

I.

THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE TRIAL COURT THAT PETITIONER IS
THE ONE RESPONSIBLE FOR INFLICTING THE SLIGHT PHYSICAL INJURIES SUSTAINED BY THE DECEASED
MANUEL CHY.

II.

THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE TRIAL COURT FINDING PETITIONER
LIABLE FOR THE DEATH OF MANUEL CHY DESPITE THE FACT THAT THE CAUSE OF DEATH IS
MYOCARDIAL INFARCTION, A NON-VIOLENT RELATED CAUSE OF DEATH.

III.

THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE TRIAL COURT WHICH CONCLUDED
THAT THE HEART FAILURE OF MANUEL CHY WAS DUE TO "FRIGHT OR SHOCK CAUSED BY THE
MALTREATMENT."

IV.

BOTH THE APPELLATE TRIBUNAL AND THE TRIAL COURT ERRED IN NOT ACQUITTING THE PETITIONER
ON THE GROUND OF REASONABLE DOUBT.12

In essence, the issue is whether or not petitioner is liable for the death of Manuel Chy.

In his undated Memorandum,13 petitioner insists on a review of the factual findings of the trial court because the judge
who penned the decision was not the same judge who heard the prosecution evidence. He adds that the Court of
Appeals had wrongly inferred from, misread and overlooked certain relevant and undisputed facts, which, if properly
considered, would justify a different conclusion.14

At the onset, petitioner denies laying a hand on Manuel Chy. Instead, he implicates Armando Foz as the author of the
victim’s injuries. Corollarily, he challenges the credibility of Armando’s brother, Fidel, who testified concerning his sole
culpability. Basically, petitioner disowns responsibility for Chy’s demise since the latter was found to have died of
myocardial infarction. In support, he amplifies the testimony of Dr. Cleofas C. Antonio 15 that Chy’s medical condition
could have resulted in his death anytime. Petitioner asserts that, at most, he could be held liable for slight physical
injuries because none of the blows he inflicted on Chy was fatal.

The Office of the Solicitor General reiterates the trial court’s assessment of the witnesses and its conclusion that the
beating of Chy was the proximate cause of his death.

Upon careful consideration of the evidence presented by the prosecution as well as the defense in this case, we are
unable to consider the petitioner’s appeal with favor.

The present petition was brought under Rule 45 of the Rules of Court, yet, petitioner raises questions of fact. Indeed,
it is opportune to reiterate that this Court is not the proper forum from which to secure a re-evaluation of factual
issues, save where the factual findings of the trial court do not find support in the evidence on record or where the
judgment appealed from was based on a misapprehension of facts.16 Neither exception applies in the instant case as
would justify a departure from the established rule.

Further, petitioner invokes a recognized exception to the rule on non-interference with the determination of the
credibility of witnesses. He points out that the judge who penned the decision is not the judge who received the
evidence and heard the witnesses. But while the situation obtains in this case, the exception does not. The records
reveal that Judge Conrado F. Manauis inhibited from the proceedings upon motion of no less than the petitioner
himself. Consequently, petitioner cannot seek protection from the alleged adverse consequence his own doing might
have caused. For us to allow petitioner relief based on this argument would be to sanction a travesty of the Rules
which was designed to further, rather than subdue, the ends of justice.

We reiterate, the efficacy of a decision is not necessarily impaired by the fact that the ponente only took over from a
colleague who had earlier presided over the trial. It does not follow that the judge who was not present during the
trial, or a fraction thereof, cannot render a valid and just decision. 17 Here, Judge Andres Q. Cipriano took over the
case after Judge Manauis recused himself from the proceedings. Even so, Judge Cipriano not only heard the
evidence for the defense, he also had an opportunity to observe Dr. Cleofas Antonio who was recalled to clarify
certain points in his testimony. Worth mentioning, too, is the fact that Judge Cipriano presided during the taking of the
testimonies of Fidel Foz, Jr. and Alvin Pascua on rebuttal.

In any case, it is not unusual for a judge who did not try a case in its entirety to decide it on the basis of the records
on hand.18 He can rely on the transcripts of stenographic notes and calibrate the testimonies of witnesses in
accordance with their conformity to common experience, knowledge and observation of ordinary men. Such reliance
does not violate substantive and procedural due process of law. 19

The Autopsy Report on the body of Manuel Chy disclosed the following injuries:

POSTMORTEM FINDINGS

Body embalmed, well preserved.

Cyanotic lips and nailbeds.

Contusions, dark bluish red: 4.5 x 3.0 cms., lower portion of the left ear; 4.0 x 2.8 cms., left inferior mastoid region;
2.5 x 1.1 cms., upper lip; 2.7 x 1.0 cms., lower lip; 5.8 x 5.5 cms., dorsum of left hand.

Lacerated wound, 0.8 cm., involving mucosal surface of the upper lip on the right side.

No fractures noted.

Brain with tortuous vessels. Cut sections show congestion. No hemorrhage noted.

Heart, with abundant fat adherent on its epicardial surface. Cut sections show a reddish brown myocardium with an
area of hyperemia on the whole posterior wall, the lower portion of the anterior wall and the inferior portion of the
septum. Coronary arteries, gritty, with the caliber of the lumen reduced by approximately thirty (30%) percent.
Histopathological findings show mild fibrosis of the myocardium.

Lungs, pleural surfaces, shiny; with color ranging from dark red to dark purple. Cut sections show a gray periphery
with reddish brown central portion with fluid oozing on pressure with some reddish frothy materials noted.
Histopathological examinations show pulmonary edema and hemorrhages.

Kidneys, purplish with glistening capsule. Cut sections show congestion. Histopathological examinations show mild
lymphocytic infiltration.1avvphi1

Stomach, one-half (1/2) full with brownish and whitish materials and other partially digested food particles.

CAUSE OF DEATH: - Myocardial Infarction. (Emphasis supplied.)20

At first, petitioner denied employing violence against Chy. In his undated Memorandum, however, he admitted
inflicting injuries on the deceased, albeit, limited his liability to slight physical injuries. He argues that the superficial
wounds sustained by Chy did not cause his death.21 Quite the opposite, however, a conscientious analysis of the
records would acquaint us with the causal connection between the death of the victim and the mauling that preceded
it. In open court, Dr. Antonio identified the immediate cause of Chy’s myocardial infarction:

ATTY. TUMARU:
Q: You diagnose[d] the cause of death to be myocardial infarction that is because there was an occlusion in the
artery that prevented the flowing of blood into the heart?

A: That was not exactly seen at the autopsy table but it changes, the hyperemic changes [in] the heart muscle were
the one[s] that made us [think] or gave strong conclusion that it was myocardial infarction, and most likely the cause
is occlusion of the blood vessels itself. (Emphasis supplied.)22

By definition, coronary occlusion23 is the complete obstruction of an artery of the heart, usually from progressive
arteriosclerosis24 or the thickening and loss of elasticity of the arterial walls. This can result from sudden emotion in a
person with an existing arteriosclerosis; otherwise, a heart attack will not occur. 25 Dr. Jessica Romero testified on
direct examination relative to this point:

ATTY. CALASAN:

Q: Could an excitement trigger a myocardial infarction?

A: Excitement, I cannot say that if the patient is normal[;] that is[,] considering that the patient [does] not have any
previous [illness] of hypertension, no previous history of myocardial [ischemia], no previous [arteriosis] or
hardening of the arteries, then excitement [cannot] cause myocardial infarction. (Emphasis supplied.) 26

The Autopsy Report bears out that Chy has a mild fibrosis of the myocardium27 caused by a previous heart attack.
Said fibrosis28 or formation of fibrous tissue or scar tissue rendered the middle and thickest layer of the victim’s heart
less elastic and vulnerable to coronary occlusion from sudden emotion. This causation is elucidated by the testimony
of Dr. Antonio:

ATTY. CALASAN:

Q: You said that the physical injuries will cause no crisis on the part of the victim, Doctor?

A: Yes, sir.

Q: And [these] physical injuries [were] caused by the [boxing] on the mouth and[/]or hitting on the nape by a bottle?

A: Yes, sir.

Q: On the part of the deceased, that [was] caused definitely by emotional crisis, Doctor?

A: Yes, sir.

Q: And because of this emotional crisis the heart palpitated so fast, so much so, that there was less oxygen being
pumped by the heart?

A: Yes, sir.

Q: And definitely that caused his death, Doctor?

A: Yes, sir, it could be.29

In concurrence, Dr. Antonio A. Paguirigan also testified as follows:

ATTY. CALASAN:

Q: I will repeat the question… Dr. Antonio testified that the deceased died because of the blow that was inflicted, it
triggered the death of the deceased, do you agree with his findings, Doctor?
A: Not probably the blow but the reaction sir.

Q: So you agree with him, Doctor?

A: It could be, sir.

Q: You agree with him on that point, Doctor?

A: Yes, sir.30

It can be reasonably inferred from the foregoing statements that the emotional strain from the beating aggravated
Chy’s delicate constitution and led to his death. The inevitable conclusion then surfaces that the myocardial infarction
suffered by the victim was the direct, natural and logical consequence of the felony that petitioner had intended to
commit.

Article 4(1) of the Revised Penal Code states that criminal liability shall be incurred "by any person committing a
felony (delito) although the wrongful act done be different from that which he intended." The essential requisites for
the application of this provision are: (a) the intended act is felonious; (b) the resulting act is likewise a felony; and (c)
the unintended albeit graver wrong was primarily caused by the actor’s wrongful acts. 31lawph!l

In this case, petitioner was committing a felony when he boxed the victim and hit him with a bottle. Hence, the fact
that Chy was previously afflicted with a heart ailment does not alter petitioner’s liability for his death. Ingrained in our
jurisprudence is the doctrine laid down in the case of United States v. Brobst32 that:

x x x where death results 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.33

In the same vein, United States v. Rodriguez34 enunciates that:

x x x although the assaulted party was previously affected by some internal malady, if, because of a blow given with
the hand or the foot, his death was hastened, beyond peradventure he is responsible therefor who produced the
cause for such acceleration as the result of a voluntary and unlawfully inflicted injury. (Emphasis supplied.) 35

In this jurisdiction, a person committing a felony is responsible for all the natural and logical consequences resulting
from it although the unlawful act performed is different from the one he intended;36 "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).37 Thus, the circumstance
that petitioner did not intend so grave an evil as the death of the victim does not exempt him from criminal liability.
Since he deliberately committed an act prohibited by law, said condition simply mitigates his guilt in accordance with
Article 13(3)38 of the Revised Penal Code.39 Nevertheless, we must appreciate as mitigating circumstance in favor of
petitioner the fact that the physical injuries he inflicted on the victim, could not have resulted naturally and logically, in
the actual death of the victim, if the latter’s heart was in good condition.

Considering that the petitioner has in his favor the mitigating circumstance of lack of intention to commit so grave a
wrong as that committed without any aggravating circumstance to offset it, the imposable penalty should be in the
minimum period, that is, reclusion temporal in its minimum period,40or anywhere from twelve (12) years and one (1)
day to fourteen years (14) years and eight (8) months. Applying the Indeterminate Sentence Law, 41 the trial court
properly imposed upon petitioner an indeterminate penalty of ten (10) years of prisión mayor, as minimum, to
fourteen (14) years and eight (8) months of reclusion temporal as maximum.

We shall, however, modify the award of damages to the heirs of Manuel Chy for his loss of earning capacity in the
amount of ₱332,000. In fixing the indemnity, the victim’s actual income at the time of death and probable life
expectancy are taken into account. For this purpose, the Court adopts the formula used in People v. Malinao:42

Net earning capacity = 2/3 x (80-age of x a reasonable portion of the the victim at the annual net income which time
of this death) would have been received
by the heirs for support.43

Branch 9 of the Aparri, Cagayan RTC took judicial notice of the salary which Manuel Chy was receiving as a sheriff of
the court. At the time of his death, Chy was 51 years old and was earning a gross monthly income of ₱10,600 or a
gross annual income of ₱127,200. But, in view of the victim’s delicate condition, the trial court reduced his life
expectancy to 10 years. It also deducted ₱7,000 from Chy’s salary as reasonable living expense. However, the
records are bereft of showing that the heirs of Chy submitted evidence to substantiate actual living expenses. And in
the absence of proof of living expenses, jurisprudence 44 approximates net income to be 50% of the gross income.
Accordingly, by reason of his death, the heirs of Manuel Chy should be awarded ₱1,229,600 as loss of earning
capacity, computed as follows:

Net earning capacity = 2/3 x (80-51) x [₱127,200 - 1/2 (₱127,200)]

= 2/3 x (29) x ₱63,600

= 19 1/3 x ₱63,600

= ₱1,229,600

We sustain the trial court’s grant of funerary expense of ₱200,000 as stipulated by the parties45 and civil indemnity of
₱50,000.46 Anent moral damages, the same is mandatory in cases of murder and homicide, without need of
allegation and proof other than the death of the victim.47 However, in obedience to the controlling case law, the
amount of moral damages should be reduced to ₱50,000.

WHEREFORE, the Decision dated December 20, 2005 and the Resolution dated March 13, 2006 of the Court of
Appeals in CA-G.R.-CR No. 27544 are AFFIRMED with MODIFICATION in that the award of moral damages is
reduced to ₱50,000. Petitioner is further ordered to indemnify the heirs of Manuel K. Chy ₱50,000 as civil indemnity;
₱200,000, representing expenses for the wake and burial; and ₱1,229,600 as loss of earning capacity.

No pronouncement as to costs.

SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

1Rollo, pp. 51-65. Penned by Associate Justice Vicente Q. Roxas, with Associate Justices Conrado M.
Vasquez, Jr. and Juan Q. Enriquez, Jr. concurring.

2 CA rollo, pp. 93-108. Penned by Presiding Judge Andres Q. Cipriano.

3 Rollo, p. 101.

4 Id. at 69-98.

5 Records, p. 2.

6 TSN, September 24, 2001, p. 8.

7 Id. at 10.

8 Id. at 11.

9 Id. at 21.

10 CA rollo, pp. 107-108.

11 Rollo, p. 65.

12 Id. at 188.

13 Id. at 180-220.

14 Id. at 190.

15 TSN, September 16, 2002, pp. 15-19.

16 Lascano v. People, G.R. No. 166241, September 7, 2007, 532 SCRA 515, 524.

17 Resayo v. People, G.R. No. 154502, April 27, 2007, 522 SCRA 391, 401-402.

18 Decasa v. Court of Appeals, G.R. No. 172184, July 10, 2007, 527 SCRA 267, 283.

19 Id. at 284.

20 Records, p. 260.
21
Rollo, p. 216.

22 TSN, September 26, 2001, pp. 10-11.

23 R. Sloane, The Sloane-Dorland Annotated Medical-Legal Dictionary 506 (1987).

24 Id. at 60.

25 Id. at 506.

26 TSN, August 5, 2002, p. 39.

27 Supra note 23, at 60.

Myocardium is the middle and thickest layer of the heart wall, composed of cardiac muscle.

28 Id. at 285.

29 TSN, September 16, 2002, pp. 20-21.

30 TSN, June 20, 2002, p. 44.

31 People v. Ortega, Jr., G.R. No. 116736, July 24, 1997, 276 SCRA 166, 182.

32 14 Phil. 310 (1909).

33 Id. at 318.

34 23 Phil. 22 (1912).

35 Id. at 25.

36 Quinto v. Andres, G.R. No. 155791, March 16, 2005, 453 SCRA 511, 520.

37 People v. Ural, No. L-30801, March 27, 1974, 56 SCRA 138, 144.

38 ART. 13. Mitigating circumstances. – The following are mitigating circumstances:

xxxx

3. That the offender had no intention to commit so grave a wrong as that committed.

xxxx

39 People v. Ilustre, 54 Phil. 594, 599 (1930).

40 Article 64(2) of the Revised Penal Code provides:

ART. 64. Rules for the application of penalties which contain three periods. – In cases in which the
penalties prescribed by law contains three periods, whether it be a single divisible penalty or
composed of three different penalties; each one of which forms a period in accordance with the
provisions of Articles 76 and 77, the courts shall observe for the application of the penalty the
following rules, according to whether there are or are no mitigating or aggravating circumstances:
 xxxx

2. When only a mitigating circumstance is present in the commission of the act, they shall impose
the penalty in its minimum period.

xxxx

41 Act No. 4103.

SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised
Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum which shall be within the
range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is
punished by any other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and minimum shall not be
less than the minimum term prescribed by the same. (As amended by Act No. 4225.)

42 G.R. No. 128148, February 16, 2004, 423 SCRA 34.

43 Id. at 54.

44 Id. at 55.

45 TSN, October 17, 2001, p. 7.

46 People v. Ducabo, G.R. No. 175594, September 28, 2007, 534 SCRA 458, 476.

47 Id. at 477.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 72964 January 7, 1988

FILOMENO URBANO, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the decision of the
then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable doubt of the
crime of homicide.

The records disclose the following facts of the case.

At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his ricefield at
Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco seedbed of Marcelo
Javier. He found the place where he stored his palay flooded with water coming from the irrigation canal nearby
which had overflowed. Urbano went to the elevated portion of the canal to see what happened and there he saw
Marcelo Javier and Emilio Erfe cutting grass. He asked them who was responsible for the opening of the irrigation
canal and Javier admitted that he was the one. Urbano then got angry and demanded that Javier pay for his soaked
palay. A quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle, by 2
inches wide) and hacked Javier hitting him on the right palm of his hand, which was used in parrying the bolo hack.
Javier who was then unarmed ran away from Urbano but was overtaken by Urbano who hacked him again hitting
Javier on the left leg with the back portion of said bolo, causing a swelling on said leg. When Urbano tried to hack and
inflict further injury, his daughter embraced and prevented him from hacking Javier.

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50 meters away
from where the incident happened. Emilio then went to the house of Barangay Captain Menardo Soliven but not
finding him there, Emilio looked for barrio councilman Felipe Solis instead. Upon the advice of Solis, the Erfes
together with Javier went to the police station of San Fabian to report the incident. As suggested by Corporal Torio,
Javier was brought to a physician. The group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who
did not attend to Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no available
medicine.

After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who conducted a
medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated September 28, 1981) which
reads:

TO WHOM IT MAY CONCERN:

This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married,
residing at Barangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the
following:

1 -Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right.

As to my observation the incapacitation is from (7-9) days period. This wound was presented to me
only for medico-legal examination, as it was already treated by the other doctor. (p. 88, Original
Records)

Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano promised to
pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two accompanied by Solis
appeared before the San Fabian Police to formalize their amicable settlement. Patrolman Torio recorded the event in
the police blotter (Exhibit A), to wit:

xxx xxx xxx

Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared before this
Station accompanied by brgy. councilman Felipe Solis and settled their case amicably, for they are
neighbors and close relatives to each other. Marcelo Javier accepted and granted forgiveness to
Filomeno Urbano who shoulder (sic) all the expenses in his medical treatment, and promising to
him and to this Office that this will never be repeated anymore and not to harbour any grudge
against each other. (p. 87, Original Records.)

Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00 was given to
Javier at Urbano's house in the presence of barangay captain Soliven.

At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very serious
condition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who
personally attended to Javier found that the latter's serious condition was caused by tetanus toxin. He noticed the
presence of a healing wound in Javier's palm which could have been infected by tetanus.

On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr. Exconde are as
follows:

Date Diagnosis
 11-14-80 ADMITTED due to trismus

adm. at DX TETANUS

1:30 AM Still having frequent muscle spasm. With diffi-

#35, 421 culty opening his mouth. Restless at times. Febrile

11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-

tion of respiration and HR after muscular

spasm.

02 inhalation administered. Ambo bag

resuscita-

tion and cardiac massage done but to no

avail.

Pronounced dead by Dra. Cabugao at 4:18

P.M.

PMC done and cadaver brought home by

rela-

tives. (p. 100, Original Records)

In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before the then
Circuit Criminal Court of Dagupan City, Third Judicial District.

Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as charged. He was
sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as minimum to
SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, together with
the accessories of the law, to indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without
subsidiary imprisonment in case of insolvency, and to pay the costs. He was ordered confined at the New Bilibid
Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty.

The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award of indemnity
to the heirs of the deceased to P30,000.00 with costs against the appellant.

The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on an affidavit of
Barangay Captain Menardo Soliven (Annex "A") which states:

That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the
present having been re-elected to such position in the last barangay elections on May 17, 1982;

That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan
and other places of Central Luzon including San Fabian, a town of said province;

That during the typhoon, the sluice or control gates of the Bued irrigation dam which irrigates the
ricefields of San Fabian were closed and/or controlled so much so that water and its flow to the
canals and ditches were regulated and reduced;

That due to the locking of the sluice or control gates of the dam leading to the canals and ditches
which will bring water to the ricefields, the water in said canals and ditches became shallow which
was suitable for catching mudfishes;
 That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto
Jaravata;

That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching
fish in the shallow irrigation canals with some companions;

That few days there after,or on November l5, l980, I came to know that said Marcelo Javier died of
tetanus. (p. 33, Rollo)

The motion was denied. Hence, this petition.

In a resolution dated July 16, 1986, we gave due course to the petition.

The case involves the application of Article 4 of the Revised Penal Code which provides that "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 ..." Pursuant to this provision "an accused is criminally responsible for acts committed by him in violation
of law and for all the natural and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631).

The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which Javier
suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which was the 22nd day after the
incident, Javier was rushed to the hospital in a very serious condition and that on the following day, November 15,
1981, he died from tetanus.

Under these circumstances, the lower courts ruled that Javier's death was the natural and logical consequence of
Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus, the appellate court said:

The claim of appellant that there was an efficient cause which supervened from the time the
deceased was wounded to the time of his death, which covers a period of 23 days does not
deserve serious consideration. True, that the deceased did not die right away from his wound, but
the cause of his death was due to said wound which was inflicted by the appellant. Said wound
which was in the process of healing got infected with tetanus which ultimately caused his death.

Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw
because of the infection of the wound with tetanus. And there is no other way by which he could be
infected with tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981).
Consequently, the proximate cause of the victim's death was the wound which got infected with
tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the consequences
of his unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78
Phil. 418).

Appellant's allegation that the proximate cause of the victim's death was due to his own negligence
in going back to work without his wound being properly healed, and lately, that he went to catch fish
in dirty irrigation canals in the first week of November, 1980, is an afterthought, and a desperate
attempt by appellant to wiggle out of the predicament he found himself in. If the wound had not yet
healed, it is impossible to conceive that the deceased would be reckless enough to work with a
disabled hand. (pp. 20-21, Rollo)

The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own
negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when
after two weeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to
harmful elements like tetanus germs.

The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the
time of the infliction of the wound. The evidence merely confirms that the wound, which was already healing at the
time Javier suffered the symptoms of the fatal ailment, somehow got infected with tetanus However, as to when the
wound was infected is not clear from the record.

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate cause:
 xxx xxx xxx

... 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
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." (at pp. 185-186)

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was
wounded until his death which would exculpate Urbano from any liability for Javier's death.

We look into the nature of tetanus-

The incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable
symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic
within 14 days. A short incubation period indicates severe disease, and when symptoms occur
within 2 or 3 days of injury the mortality rate approaches 100 percent.

Non-specific premonitory symptoms such as restlessness, irritability, and headache are

encountered occasionally, but the commonest presenting complaints are pain and stiffness in the
jaw, abdomen, or back and difficulty swallowing. As the progresses, stiffness gives way to rigidity,
and patients often complain of difficulty opening their mouths. In fact, trismus in the commonest
manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw. As more
muscles are involved, rigidity becomes generalized, and sustained contractions called risus
sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small
proportion of patients, only local signs and symptoms develop in the region of the injury. In the vast
majority, however, most muscles are involved to some degree, and the signs and symptoms
encountered depend upon the major muscle groups affected.

Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval referred to as the
onset time. As in the case of the incubation period, a short onset time is associated with a poor
prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the periphery,
which increases rigidity and causes simultaneous and excessive contraction of muscles and their
antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or
inapparent stimuli produce more intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which
prevent adequate ventilation. Hypoxia may then lead to irreversible central nervous system
damage and death.

Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more
than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are brief
and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset time;
trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains adequate
even during spasms. The criteria for severe tetanus include a short incubation time, and an onset
time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized
convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005;
Emphasis supplied)

Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the incubation period of
the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano
used in hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he
suffered the symptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is
more medically probable that Javier should have been infected with only a mild cause of tetanus because the
symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14 days after the infliction of
the wound. Therefore, the onset time should have been more than six days. Javier, however, died on the second day
from the onset time. The more credible conclusion is that at the time Javier's wound was inflicted by the appellant, the
severe form of tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected
with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his wound could
have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.

The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted
upon him by the accused. (People v. Cardenas, supra) And since we are dealing with a criminal conviction, the proof
that the accused caused the victim's death must convince a rational mind beyond reasonable doubt. The medical
findings, however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient
intervening cause later or between the time Javier was wounded to the time of his death. The infection was,
therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038).

Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for
failure to take necessary precautions, with tetanus may have been the proximate cause of Javier's death with which
the petitioner had nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).

"A prior and remote cause cannot be made the be of an action if such remote cause did nothing
more than furnish the condition or give rise to the occasion by which the injury was made possible,
if there intervened between such prior or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such injury would not have happened but
for such condition or occasion. If no danger existed in the condition except because of the
independent cause, such condition was not the proximate cause. And if an independent negligent
act or defective condition sets into operation the instances which result in injury because of the
prior defective condition, such subsequent act or condition is the proximate cause." (45 C.J. pp.
931-932). (at p. 125)

It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least, the records
show he is guilty of inflicting slight physical injuries. However, the petitioner's criminal liability in this respect was
wiped out by the victim's own act. After the hacking incident, Urbano and Javier used the facilities of barangay
mediators to effect a compromise agreement where Javier forgave Urbano while Urbano defrayed the medical
expenses of Javier. This settlement of minor offenses is allowed under the express provisions of Presidential Decree
G.R. No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16).

We must stress, however, that our discussion of proximate cause and remote cause is limited to the criminal aspects
of this rather unusual case. It does not necessarily follow that the petitioner is also free of civil liability. The well-
settled doctrine is that a person, while not criminally liable, may still be civilly liable. Thus, in the recent case
of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we said:

xxx xxx xxx

... While the guilt of the accused in a criminal prosecution must be established beyond reasonable
doubt, only a preponderance of evidence is required in a civil action for damages. (Article 29, Civil
Code). The judgment of acquittal extinguishes the civil liability of the accused only when it includes
a declaration that the facts from which the civil liability might arise did not exist. (Padilla v. Court of
Appeals, 129 SCRA 559).

The reason for the provisions of article 29 of the Civil Code, which provides that the acquittal of the
accused on the ground that his guilt has not been proved beyond reasonable doubt does not
necessarily exempt him from civil liability for the same act or omission, has been explained by the
Code Commission as follows:
 The old rule that the acquittal of the accused in a criminal case also releases him
from civil liability is one of the most serious flaws in the Philippine legal system. It
has given use to numberless instances of miscarriage of justice, where the
acquittal was due to a reasonable doubt in the mind of the court as to the guilt of
the accused. The reasoning followed is that inasmuch as the civil responsibility is
derived from the criminal offense, when the latter is not proved, civil liability
cannot be demanded.

This is one of those causes where confused thinking leads to unfortunate and
deplorable consequences. Such reasoning fails to draw a clear line of
demarcation between criminal liability and civil responsibility, and to determine
the logical result of the distinction. The two liabilities are separate and distinct
from each other. One affects the social order and the other, private rights. One is
for the punishment or correction of the offender while the other is for reparation of
damages suffered by the aggrieved party. The two responsibilities are so
different from each other that article 1813 of the present (Spanish) Civil Code
reads thus: "There may be a compromise upon the civil action arising from a
crime; but the public action for the imposition of the legal penalty shall not
thereby be extinguished." It is just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the offense should be proved beyond
reasonable doubt. But for the purpose of indemnity the complaining party, why
should the offense also be proved beyond reasonable doubt? Is not the invasion
or violation of every private right to be proved only by a preponderance of
evidence? Is the right of the aggrieved person any less private because the
wrongful act is also punishable by the criminal law?

"For these reasons, the Commission recommends the adoption of the reform
under discussion. It will correct a serious defect in our law. It will close up an
inexhaustible source of injustice-a cause for disillusionment on the part of the
innumerable persons injured or wronged."

The respondent court increased the P12,000.00 indemnification imposed by the trial court to P30,000.00. However,
since the indemnification was based solely on the finding of guilt beyond reasonable doubt in the homicide case, the
civil liability of the petitioner was not thoroughly examined. This aspect of the case calls for fuller development if the
heirs of the victim are so minded.

WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then Intermediate Appellate
Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of homicide.
Costs de oficio.

SO ORDERED.

Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 103119 October 21, 1992

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

CAMPOS, JR., J.:

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

From the records, we gathered the following facts.

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

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

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

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

Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal Responsibility shall be incurred:

xxx xxx xxx

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

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

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

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

Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal
Code where:
 . . . it was necessary that the execution of the act has been commenced, that the person conceiving
the idea should have set about doing the deed, employing appropriate means in order that his
intent might become a reality, and finally, that the result or end contemplated shall have been
physically possible. So long as these conditions were not present, the law and the courts did not
hold him criminally liable. 5

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

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

That the offense cannot be produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender
must be by its nature one impossible of accomplishment. 11 There must be either impossibility of accomplishing the
intended act 12 in order to qualify the act an impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus:

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

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

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

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

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

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

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

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

In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to
rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:

It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no
one can seriously doubt that the protection of the public requires the punishment to be
administered, equally whether in the unseen depths of the pocket, etc., what was supposed to exist
was really present or not. The community suffers from the mere alarm of crime. Again: Where the
thing intended (attempted) as a crime and what is done is a sort to create alarm, in other words,
excite apprehension that the evil; intention will be carried out, the incipient act which the law of
attempt takes cognizance of is in reason committed.

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

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

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

. . . factual impossibility of the commission of the crime is not a defense. If the crime could have
been committed had the circumstances been as the defendant believed them to be, it is no defense
that in reality the crime was impossible of commission.

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

Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the
offense of attempt irrespective of legal impossibility until such time as such legislative changes in
the law take place, this court will not fashion a new non-statutory law of criminal attempt.

To restate, in the United States, where the offense sought to be committed is factually impossible or accomplishment,
the offender cannot escape criminal liability. He can be convicted of an attempt to commit the substantive crime
where the elements of attempt are satisfied. It appears, therefore, that the act is penalized, not as an impossible
crime, but as an attempt to commit a crime. On the other hand, where the offense is legally impossible of
accomplishment, the actor cannot be held liable for any crime — neither for an attempt not for an impossible crime.
The only reason for this is that in American law, there is no such thing as an impossible crime. Instead, it only
recognizes impossibility as a defense to a crime charge — that is, attempt.

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

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

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

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

SO ORDERED.

Feliciano, Regalado and Nocon, JJ., concur.

Narvasa, C.J., is on leave.

 SECOND DIVISION

[G.R. No. 155791. March 16, 2005]

MELBA QUINTO, petitioner, vs. DANTE ANDRES and RANDYVER PACHECO, respondents.

DECISION
CALLEJO, SR., J.:

At around 7:30 a.m. on November 13, 1995, eleven-year-old Edison Garcia, a Grade 4 elementary school pupil,
and his playmate, Wilson Quinto, who was also about eleven years old, were at Barangay San Rafael, Tarlac, Tarlac.
They saw respondents Dante Andres and Randyver Pacheco by the mouth of a drainage culvert. Andres and Pacheco
invited Wilson to go fishing with them inside the drainage culvert. [1] Wilson assented. When Garcia saw that it was dark
inside, he opted to remain seated in a grassy area about two meters from the entrance of the drainage system. [2]
Respondent Pacheco had a flashlight. He, along with respondent Andres and Wilson, entered the drainage
system which was covered by concrete culvert about a meter high and a meter wide, with water about a foot
deep.[3] After a while, respondent Pacheco, who was holding a fish, came out of the drainage system and left [4] without
saying a word. Respondent Andres also came out, went back inside, and emerged again, this time, carrying Wilson
who was already dead. Respondent Andres laid the boys lifeless body down in the grassy area.[5]Shocked at the sudden
turn of events, Garcia fled from the scene.[6] For his part, respondent Andres went to the house of petitioner Melba
Quinto, Wilsons mother, and informed her that her son had died. Melba Quinto rushed to the drainage culvert while
respondent Andres followed her.[7]
 The cadaver of Wilson was buried without any autopsy thereon having been conducted. The police authorities of
Tarlac, Tarlac, did not file any criminal complaint against the respondents for Wilsons death.
Two weeks thereafter, or on November 28, 1995, National Bureau of Investigation (NBI) investigators took the
sworn statements of respondent Pacheco, Garcia and petitioner Quinto. [8] Respondent Pacheco alleged that he had
never been to the drainage system catching fish with respondent Andres and Wilson. He also declared that he saw
Wilson already dead when he passed by the drainage system while riding on his carabao.
On February 29, 1996, the cadaver of Wilson was exhumed. Dr. Dominic Aguda of the NBI performed an autopsy
thereon at the cemetery and submitted his autopsy report containing the following postmortem findings:

POSTMORTEM FINDINGS

Body in previously embalmed, early stage of decomposition, attired with white long sleeves and dark pants and placed inside a
wooden coffin in a niche-apartment style.

Hematoma, 14.0 x 7.0 cms., scalp, occipital region.

Abrasion, 4.0 x 3.0 cms., right face, 5.0 x 3.0 cms., left forearm.
Laryngo tracheal lumina congested and edematous containing muddy particles with bloody path.
Lungs hyperinflated, heavy and readily pits on pressure; section contains bloody froth.
Brain autolyzed and liquefied.
Stomach partly autolyzed.

CAUSE OF DEATH: Asphyxia by drowning; traumatic head injuries, contributory. [9]

The NBI filed a criminal complaint for homicide against respondents Andres and Pacheco in the Office of the
Provincial Prosecutor, which found probable cause for homicide by doloagainst the two.
An Information was later filed with the Regional Trial Court (RTC) of Tarlac, Tarlac, charging the respondents with
homicide. The accusatory portion reads:

That at around 8 oclock in the morning of November 13, 1995, in the Municipality of Tarlac, Province of Tarlac, Philippines, and
within the jurisdiction of this Honorable Court, the said accused Dante Andres and Randyver Pacheco y Suliven @ Randy,
conspiring, confederating, and helping one another, did then and there willfully, unlawfully, and feloniously attack, assault, and
maul Wilson Quinto inside a culvert where the three were fishing, causing Wilson Quinto to drown and die.

CONTRARY TO LAW.[10]

After presenting Garcia, the prosecution presented Dr. Dominic Aguda, who testified on direct examination that
the hematoma at the back of the victims head and the abrasion on the latters left forearm could have been caused by
a strong force coming from a blunt instrument or object. The injuries in the larynx and trachea also indicated that the
victim died of drowning, as some muddy particles were also found on the lumina of the larynx and trachea (Nakahigop
ng putik). Dr. Aguda stated that such injury could be caused when a person is put under water by pressure or by
force.[11] On cross-examination, Dr. Aguda declared that the hematoma on the scalp was caused by a strong pressure
or a strong force applied to the scalp coming from a blunt instrument. He also stated that the victim could have fallen,
and that the occipital portion of his head could have hit a blunt object.
Dr. Aguda also declared that the 14x7-centimeter hematoma at the back of Wilsons head could have rendered
the latter unconscious, and, if he was thrown in a body of water, the boy could have died by drowning.
In answer to clarificatory questions made by the court, the doctor declared that the 4x3-centimeter abrasion on
the right side of Wilsons face could have also been caused by rubbing against a concrete wall or pavement, or by
contact with a rough surface. He also stated that the trachea region was full of mud, but that there was no sign of
strangulation.[12]
After the prosecution had presented its witnesses and the respondents had admitted the pictures showing the
drainage system including the inside portions thereof, [13] the prosecution rested its case.
The respondents filed a demurer to evidence which the trial court granted on the ground of insufficiency of
evidence, per its Order dated January 28, 1998. It also held that it could not hold the respondents liable for damages
because of the absence of preponderant evidence to prove their liability for Wilsons death.
 The petitioner appealed the order to the Court of Appeals (CA) insofar as the civil aspect of the case was
concerned. In her brief, she averred that

THE TRIAL COURT ERRED IN DISMISSING THE CASE AND IN RULING THAT NO PREPONDERANT EVIDENCE
EXISTS TO HOLD ACCUSED-APPELLEES CIVILLY LIABLE FOR THE DEATH OF THE VICTIM WILSON QUINTO.[14]

The CA rendered judgment affirming the assailed order of the RTC on December 21, 2001. It ruled as follows:

The acquittal in this case is not merely based on reasonable doubt but rather on a finding that the accused-appellees did not
commit the criminal acts complained of. Thus, pursuant to the above rule and settled jurisprudence, any civil action ex
delicto cannot prosper. Acquittal in a criminal action bars the civil action arising therefrom where the judgment of acquittal holds
that the accused did not commit the criminal acts imputed to them. (Tan v. Standard Vacuum Oil Co., 91 Phil. 672)[15]

The petitioner filed the instant petition for review and raised the following issues:
I

WHETHER OR NOT THE EXTINCTION OF RESPONDENTS CRIMINAL LIABILITY, LIKEWISE, CARRIES WITH IT
THE EXTINCTION OF THEIR CIVIL LIABILITY.

II

WHETHER OR NOT PREPONDERANT EVIDENCE EXISTS TO HOLD RESPONDENTS CIVILLY LIABLE FOR THE
DEATH OF WILSON QUINTO.[16]

The petitioner avers that the trial court indulged in mere possibilities, surmises and speculations when it held that
Wilson died because (a) he could have fallen, his head hitting the stones in the drainage system since the culvert was
slippery; or (b) he might have been bitten by a snake which he thought was the prick of a fish fin, causing his head to
hit hard on the top of the culvert; or (c) he could have lost consciousness due to some ailment, such as epilepsy. The
petitioner also alleges that the trial court erred in ruling that the prosecution failed to prove any ill motive on the part of
the respondents to kill the victim, and in considering that respondent Andres even informed her of Wilsons death.
The petitioner posits that the trial court ignored the testimony of the Medico-Legal Expert, Dr. Aguda; the nature,
location and number of the injuries sustained by the victim which caused his death; as well as the locus criminis. The
petitioner insists that the behavior of the respondents after the commission of the crime betrayed their guilt, considering
that respondent Pacheco left the scene, leaving respondent Andres to bring out Wilsons cadaver, while respondent
Andres returned inside the drainage system only when he saw Garcia seated in the grassy area waiting for his friend
Wilson to come out.
The petitioner contends that there is preponderant evidence on record to show that either or both the respondents
caused the death of her son and, as such, are jointly and severally liable therefor.
In their comment on the petition, the respondents aver that since the prosecution failed to adduce any evidence
to prove that they committed the crime of homicide and caused the death of Wilson, they are not criminally and civilly
liable for the latters death.
The petition has no merit.
Every person criminally liable for a felony is also civilly liable. [17] The civil liability of such person established in
Articles 100, 102 and 103 of the Revised Penal Code includes restitution, reparation of the damage caused, and
indemnification for consequential damages.[18] When a criminal action is instituted, the civil action for the recovery of
civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended
party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal
action.[19] With the implied institution of the civil action in the criminal action, the two actions are merged into one
composite proceeding, with the criminal action predominating the civil. [20]
The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing
the same or similar offense, to isolate him from society, to reform and rehabilitate him or, in general, to maintain social
order.[21] The sole purpose of the civil action is the restitution, reparation or indemnification of the private offended party
for the damage or injury he sustained by reason of the delictual or felonious act of the accused. [22] While the prosecution
must prove the guilt of the accused beyond reasonable doubt for the crime charged, it is required to prove the cause
of action of the private complainant against the accused for damages and/or restitution.
The extinction of the penal action does not carry with it the extinction of the civil action. However, the civil action
based on delict shall be deemed extinguished if there is a finding in a final judgment in the civil action that the act or
omission from where the civil liability may arise does not exist.[23]
Moreover, a person committing a felony is criminally liable for all the natural and logical consequences resulting
therefrom although the wrongful act done be different from that which he intended. [24] Natural refers to an occurrence
in the ordinary course of human life or events, while logical means that there is a rational connection between the act
of the accused and the resulting injury or damage. The felony committed must be the proximate cause of the resulting
injury. Proximate cause is that cause which in natural and continuous sequence, unbroken by an efficient intervening
cause, produces the injury, and without which the result would not have occurred. 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. [25]
There must be a relation of cause and effect, the cause being the felonious act of the offender, the effect being
the resultant injuries and/or death of the victim. The cause and effect relationship is not altered or changed because of
the pre-existing conditions, such as the pathological condition of the victim (las condiciones patologica del lesionado);
the predisposition of the offended party (la predisposicion del ofendido); the physical condition of the offended party (la
constitucion fisica del herido); or the concomitant or concurrent conditions, such as the negligence or fault of the doctors
(la falta de medicos para sister al herido); or the conditions supervening the felonious act such as tetanus, pulmonary
infection or gangrene.[26]
The felony committed is not the proximate cause of the resulting injury when:
(a) there is an active force that intervened between the felony committed and the resulting injury, and the
active force is a distinct act or fact absolutely foreign from the felonious act of the accused; or
(b) the resulting injury is due to the intentional act of the victim. [27]
If a person inflicts a wound with a deadly weapon in such a manner as to put life in jeopardy and death follows as
a consequence of their felonious act, it does not alter its nature or diminish its criminality to prove that other causes
cooperated in producing the factual result. The offender is criminally liable for the death of the victim if his delictual act
caused, accelerated or contributed to the death of the victim. [28] A different doctrine would tend to give immunity to
crime and to take away from human life a salutary and essential safeguard. [29] This Court has emphasized that:

Amid 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 to open a wide door
by which persons guilty of the highest crime might escape conviction and punishment. [30]

In People v. Quianzon,[31] the Supreme Court held:

The Supreme Court of Spain, in a Decision of April 3, 1879, said in a case similar to the present, the following: Inasmuch as a
man is responsible for the consequences of his act and in this case, the physical condition and temperament of the offended party
nowise lessen the evil, the seriousness whereof is to be judged, not by the violence of the means employed, but by the result
actually produced; and as the wound which the appellant inflicted upon the deceased was the cause which determined his death,
without his being able to counteract its effects, it is evident that the act in question should be qualified as homicide, etc.[32]

In the present case, the respondents were charged with homicide by dolo. In People v. Delim,[33] the Court
delineated the burden of the prosecution to prove the guilt of the accused for homicide or murder:

In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two things: first, the criminal act
and second, defendants agency in the commission of the act. Wharton says that corpus delicti includes two things: first, the
objective; second, the subjective element of crimes. In homicide (by dolo) and in murder cases, the prosecution is burdened to
prove: (a) the death of the party alleged to be dead; (b) that the death was produced by the criminal act of some other than the
deceased and was not the result of accident, natural cause or suicide; and (c) that defendant committed the criminal act or was in
some way criminally responsible for the act which produced the death. To prove the felony of homicide or murder, there must be
incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed (with malice); in other words, that there
was intent to kill. Such evidence may consist inter alia in the use of weapons by the malefactors, the nature, location and number
of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of
the victim. If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed. [34]
 Insofar as the civil aspect of the case is concerned, the prosecution or the private complainant is burdened to
adduce preponderance of evidence or superior weight of evidence. Although the evidence adduced by the plaintiff is
stronger than that presented by the defendant, he is not entitled to a judgment if his evidence is not sufficient to sustain
his cause of action. The plaintiff must rely on the strength of his own evidence and not upon the weakness of that of
the defendants.[35]

Section 1, Rule 133 of the Revised Rules of Evidence provides how preponderance of evidence is determined:

Section 1. Preponderance of evidence, how determined. In civil cases, the party having the burden of proof must establish his
case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues
involved lies, the court may consider all the facts and circumstance of the case, the witnesses manner of testifying, their
intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they
testify, the probability of their testimony, their interest or want of interest, and also their personal credibility so far as the same
may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not
necessarily with the greater number.[36]

In the present case, we rule that, as held by the trial court and the CA, the prosecution failed to adduce
preponderant evidence to prove the facts on which the civil liability of the respondents rest, i.e., that the petitioner has
a cause of action against the respondents for damages.
It bears stressing that the prosecution relied solely on the collective testimonies of Garcia, who was not an
eyewitness, and Dr. Aguda.
We agree with the petitioner that, as evidenced by the Necropsy Report of Dr. Dominic Aguda, the deceased
sustained a 14x7-centimeter hematoma on the scalp. But as to how the deceased sustained the injury, Dr. Aguda was
equivocal. He presented two possibilities: (a) that the deceased could have been hit by a blunt object or instrument
applied with full force; or (b) the deceased could have slipped, fell hard and his head hit a hard object:
COURT:

The Court would ask questions.

Q So it is possible that the injury, that is the hematoma, caused on the back of the head might be due to
the victims falling on his back and his head hitting a pavement?
A Well, the 14x7-centimeter hematoma is quite extensive, so if the fall is strong enough and would fall from
a high place and hit a concrete pavement, then it is possible.
Q Is it possible that if the victim slipped on a concrete pavement and the head hit the pavement, the injury
might be caused by that slipping?
A It is also possible.
Q So when the victim was submerged under water while unconscious, it is possible that he might have
taken in some mud or what?
A Yes, Sir.
Q So it is your finding that the victim was submerged while still breathing?
A Yes, Your Honor, considering that the finding on the lung also would indicate that the victim was still
alive when he was placed under water.[37]
The doctor also admitted that the abrasion on the right side of the victims face could have been caused by rubbing
against a concrete wall or pavement:
Q The abrasion 4x3 centimeters on the right [side of the] face, would it be caused by the face rubbing
against a concrete wall or pavement?
A Yes, Sir. Abrasion is usually caused by a contact of a skin to a rough surface.
Q Rough surface?
A Yes, Your Honor.
Q When you say that the trachea region was full of mud, were there no signs that the victim was
strangled?
A There was no sign of strangulation, Your Honor.[38]
 The trial court gave credence to the testimony of Dr. Aguda that the deceased might have slipped, causing the
latter to fall hard and hit his head on the pavement, thus:
Q -Could it be possible, Doctor, that this injury might have been caused when the victim fell down and that
portion of the body or occipital portion hit a blunt object and might have been inflicted as a result of
falling down?
A - If the fall if the victim fell and he hit a hard object, well, it is also possible.[39]
The trial court took into account the following facts:

Again, it could be seen from the pictures presented by the prosecution that there were stones inside the culvert. (See Exhibit D to
D-3). The stones could have caused the victim to slip and hit his head on the pavement. Since there was water on the culvert, the
portion soaked with water must be very slippery, aside from the fact that the culvert is round. If the victim hit his head and lost
consciousness, he will naturally take in some amount of water and drown. [40]

The CA affirmed on appeal the findings of the trial court, as well as its conclusion based on the said findings.
We agree with the trial and appellate courts. The general rule is that the findings of facts of the trial court, its
assessment of probative weight of the evidence of the parties, and its conclusion anchored on such findings, affirmed
no less by the CA, are given conclusive effect by this Court, unless the trial court ignored, misapplied or misconstrued
cogent facts and circumstances which, if considered, would change the outcome of the case. The petitioner failed to
show any justification to warrant a reversal of the findings or conclusions of the trial and appellate courts.
That the deceased fell or slipped cannot be totally foreclosed because even Garcia testified that the drainage
culvert was dark, and that he himself was so afraid that he refused to join respondents Andres and Pacheco
inside.[41] Respondent Andres had no flashlight; only respondent Pacheco had one.
Moreover, Dr. Aguda failed to testify and explain what might have caused the abrasion on the left forearm of the
deceased. He, likewise, failed to testify whether the abrasions on the face and left forearm of the victim were made ante
mortem or post mortem.
The petitioner even failed to adduce preponderance of evidence that either or both the respondents hit the
deceased with a blunt object or instrument, and, consequently, any blunt object or instrument that might have been
used by any or both of the respondents in hitting the deceased.
It is of judicial notice that nowadays persons have killed or committed serious crimes for no reason at
all.[42] However, the absence of any ill-motive to kill the deceased is relevant and admissible in evidence to prove that
no violence was perpetrated on the person of the deceased. In this case, the petitioner failed to adduce proof of any ill-
motive on the part of either respondent to kill the deceased before or after the latter was invited to join them in fishing.
Indeed, the petitioner testified that respondent Andres used to go to their house and play with her son before the latters
death:
Q Do you know this Dante Andres personally?
A Not much but he used to go to our house and play with my son after going from her mother who is
gambling, Sir.
Q But you are acquainted with him, you know his face?
A Yes, Sir.
Q Will you please look around this courtroom and see if he is around?
A (Witness is pointing to Dante Andres, who is inside the courtroom.) [43]
When the petitioners son died inside the drainage culvert, it was respondent Andres who brought out the
deceased. He then informed the petitioner of her sons death. Even after informing the petitioner of the death of her
son, respondent Andres followed the petitioner on her way to the grassy area where the deceased was:
Q Did not Dante Andres follow you?
A He went with me, Sir.
Q So when you went to the place where your son was lying, Dante Andres was with you?
A No, Sir. When I was informed by Dante Andres that my son was there at the culvert, I ran immediately.
He [was] just left behind and he just followed, Sir.
Q So when you reached the place where your son was lying down, Dante Andres also came or arrived?
A It was only when we boarded the jeep that he arrived, Sir. [44]
 In sum, the petitioner failed to adduce preponderance of evidence to prove a cause of action for damages based
on the deliberate acts alleged in the Information.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.
 Republic of the Philippines
Supreme Court
Manila

THIRD DIVISION

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

Petitioner,

Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent.
July 13, 2009
x-----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the reversal of the

Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's conviction of

the crime of Qualified Theft, and its Resolution[2] dated March 5, 2004 denying petitioner's motion for reconsideration.

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

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

CONTRARY TO LAW.[3]

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

follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner Banco De Oro (BDO) Check

Number 0132649 postdated July 14, 1997 in the amount of P10,000.00. The check was payment for Baby Aquino's purchases from

Mega Foam Int'l., Inc., and petitioner was then the collector of Mega Foam. Somehow, the check was deposited in the Land Bank

account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and the former pricing,

merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime in the middle of July from one

of their customers, Jennifer Sanalila. The customer wanted to know if she could issue checks payable to the account of Mega Foam,

instead of issuing the checks payable to CASH. Said customer had apparently been instructed by Jacqueline Capitle to make check

payments to Mega Foam payable to CASH. Around that time, Ricablanca also received a phone call from an employee of Land

Bank, Valenzuela Branch, who was looking for Generoso Capitle. The reason for the call was to inform Capitle that the subject

BDO check deposited in his account had been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking the latter to inform Jacqueline

Capitle about the phone call from Land Bank regarding the bounced check. Ricablanca explained that she had to call and relay the

message through Valencia, because the Capitles did not have a phone; but they could be reached through Valencia, a neighbor and

former co-employee of Jacqueline Capitle at Mega Foam.

Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to ask Baby Aquino to replace

the check with cash. Valencia also told Ricablanca of a plan to take the cash and divide it equally into four: for herself, Ricablanca,

petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported the matter to the owner

of Mega Foam, Joseph Dyhengco.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed handed petitioner a BDO check

for P10,000.00 sometime in June 1997 as payment for her purchases from Mega Foam.[4] Baby Aquino further testified that,
sometime in July 1997, petitioner also called her on the phone to tell her that the BDO check bounced.[5] Verification from company
records showed that petitioner never remitted the subject check to Mega Foam. However, Baby Aquino said that she had already

paid Mega Foam P10,000.00 cash in August 1997 as replacement for the dishonored check. [6]

Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his bank account, but explained

that the check came into his possession when some unknown woman arrived at his house around the first week of July 1997 to

have the check rediscounted. He parted with his cash in exchange for the check without even bothering to inquire into the identity

of the woman or her address. When he was informed by the bank that the check bounced, he merely disregarded it as he didnt know

where to find the woman who rediscounted the check.

Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked out an entrapment operation

with its agents. Ten pieces of P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent powder by the

NBI. Thereafter, the bills were given to Ricablanca, who was tasked to pretend that she was going along with Valencia's plan.

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then holding the bounced BDO check,

handed over said check to Ricablanca. They originally intended to proceed to Baby Aquino's place to have the check replaced with

cash, but the plan did not push through. However, they agreed to meet again on August 21, 2007.

On the agreed date, Ricablanca again went to petitioners house, where she met petitioner and Jacqueline Capitle. Petitioner, her

husband, and Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided not to go with the group because she

decided to go shopping. It was only petitioner, her husband, Ricablanca and Valencia who then boarded petitioner's jeep and went

on to Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises of Baby Aquino, pretending that she

was getting cash from Baby Aquino. However, the cash she actually brought out from the premises was the P10,000.00 marked

money previously given to her by Dyhengco. Ricablanca divided the money and upon returning to the jeep, gave P5,000.00 each

to Valencia and petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had been watching the whole

time.

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent powder on the palmar and

dorsal aspects of both of their hands. This showed that petitioner and Valencia handled the marked money. The NBI filed a criminal

case for qualified theft against the two and one Jane Doe who was later identified as Jacqueline Capitle, the wife of Generoso
Capitle.

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

Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but claimed that she had stopped

collecting payments from Baby Aquino for quite some time before her resignation from the company. She further testified that, on

the day of the arrest, Ricablanca came to her mothers house, where she was staying at that time, and asked that she accompany her

(Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at the Chinese General Hospital,

Ricablanca decided to hitch a ride with the former and her husband in their jeep going to Baby Aquino's place in Caloocan City. She

allegedly had no idea why Ricablanca asked them to wait in their jeep, which they parked outside the house of Baby Aquino, and
was very surprised when Ricablanca placed the money on her lap and the NBI agents arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30, 1997. It was never part of her

job to collect payments from customers.According to her, on the morning of August 21, 1997, Ricablanca called her up on the

phone, asking if she (Valencia) could accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed

to do so, despite her admission during cross-examination that she did not know where Baby Aquino resided, as she had never been

to said house. They then met at the house of petitioner's mother, rode the jeep of petitioner and her husband, and proceeded to Baby

Aquino's place. When they arrived at said place, Ricablanca alighted, but requested them to wait for her in the jeep. After ten

minutes, Ricablanca came out and, to her surprise, Ricablanca gave her money and so she even asked, What is this? Then, the NBI

agents arrested them.

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

of which reads:

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

SO ORDERED.[7]

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

thus:

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

(a) the sentence against accused Gemma Jacinto stands;

(b) the sentence against accused Anita Valencia is reduced to 4 months arresto
mayor medium.
(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner Gemma Tubale Jacinto,

but the same was denied per Resolution dated March 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision and Resolution of the CA. The

issues raised in the petition are as follows:

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

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

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

reasonable doubt.[8]
The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the elements of the crime of qualified theft defined

under Article 308, in relation to Article 310, both of the Revised Penal Code: (1) the taking of personal property - as shown by the

fact that petitioner, as collector for Mega Foam, did not remit the customer's check payment to her employer and, instead,

appropriated it for herself; (2) said property belonged to another − the check belonged to Baby Aquino, as it was her payment for

purchases she made; (3) the taking was done with intent to gain this is presumed from the act of unlawful taking and further shown

by the fact that the check was deposited to the bank account of petitioner's brother-in-law; (4) it was done without the owners

consent petitioner hid the fact that she had received the check payment from her employer's customer by not remitting the check to

the company; (5) it was accomplished without the use of violence or intimidation against persons, nor of force upon things the

check was voluntarily handed to petitioner by the customer, as she was known to be a collector for the company; and (6) it was

done with grave abuse of confidence petitioner is admittedly entrusted with the collection of payments from customers.

However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal property subject of the

theft must have some value, as the intention of the accused is to gain from the thing stolen. This is further bolstered by Article

309, where the law provides that the penalty to be imposed on the accused is dependent on the value of the thing stolen.

In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently without value,

as it was subsequently dishonored. Thus, the question arises on whether the crime of qualified theft was actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals[9] is highly instructive and applicable to the present case. In Intod, the accused, intending to kill a person,

peppered the latters bedroom with bullets, but since the intended victim was not home at the time, no harm came to him. The trial

court and the CA held Intod guilty of attempted murder. But upon review by this Court, he was adjudged guilty only of

an impossible crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal Code,
because of the factual impossibility of producing the crime. Pertinent portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:

xxxx

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

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

Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or property; (2) that
the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the means employed was either
inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime under Article 4(2) of the

Revised Penal Code was further explained by the Court in Intod[10] in this wise:

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

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

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

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

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

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his hand in the coat

pocket of another with the intention to steal the latter's wallet, but gets nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this case, petitioner

performed all the acts to consummate the crime of qualified theft, which is a crime against property. Petitioner's evil intent cannot

be denied, as the mere act of unlawfully taking the check meant for Mega Foam showed her intent to gain or be unjustly

enriched. Were it not for the fact that the check bounced, she would have received the face value thereof, which was not rightfully

hers. Therefore, it was only due to the extraneous circumstance of the check being unfunded, a fact unknown to petitioner at the

time, that prevented the crime from being produced. The thing unlawfully taken by petitioner turned out to be absolutely worthless,

because the check was eventually dishonored, and Mega Foam had received the cash to replace the value of said dishonored check.

The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which she thought was the cash replacement

for the dishonored check, is of no moment. The Court held in Valenzuela v. People[12] that under the definition of theft in Article
308 of the Revised Penal Code, there is only one operative act of execution by the actor involved in theft ─ the taking of personal

property of another. Elucidating further, the Court held, thus:

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

xxxx

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

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

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

From the above discussion, there can be no question that as of the time that petitioner took possession of the check meant for

Mega Foam, she had performed all the acts to consummate the crime of theft, had it not been impossible of accomplishment
in this case. The circumstance of petitioner receiving the P5,000.00 cash as supposed replacement for the dishonored check was

no longer necessary for the consummation of the crime of qualified theft. Obviously, the plan to convince Baby Aquino to give

cash as replacement for the check was hatched only after the check had been dishonored by the drawee bank. Since the crime of

theft is not a continuing offense, petitioner's act of receiving the cash replacement should not be considered as a continuation of the

theft. At most, the fact that petitioner was caught receiving the marked money was merely corroborating evidence to strengthen

proof of her intent to gain.

Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash by its issuer is a different and

separate fraudulent scheme. Unfortunately, since said scheme was not included or covered by the allegations in the Information,

the Court cannot pronounce judgment on the accused; otherwise, it would violate the due process clause of the Constitution. If at

all, that fraudulent scheme could have been another possible source of criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals, dated December 16, 2003,

and its Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE

CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is sentenced

to suffer the penalty of six (6) months of arrresto mayor, and to pay the costs.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice
 ANTONIO EDUARDO B. NACHURA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Third Division, Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice
 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
Philippine Islands and the Government of the Philippine Islands, as defined and penalized in section 4
of Act No. 292 of the Philippine Commission.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law
library

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 the Republica
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 steamship Yuensang; 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-mentioned conspiracy hatched in Hongkong that at these
meetings new members were taken into the conspiracy and plans made for the enlistment of an army
of revolution and the raising of money by national and private loans to carry on the campaign; that to
this end bonds were issued and commissions as officers in the revolutionary army were granted to a
number of conspirators, empowering the officers thus appointed to raise troops and take command
thereof; and that the conspirators did in fact take the field and offered armed resistance to the
constituted authorities in the Philippines, only failing in their design of overthrowing the Government
because of their failure to combat successfully with the officers of the law who were sent against them
and of the failure of the people to rise en masse in response to their
propaganda.chanroblesvirtualawlibrary chanrobles virtual law library

It further appears from the evidence that the appellant Francisco Bautista, a resident of the city of
Manila, was an intimate friend of the said Ricarte; that Ricarte wrote and notified Bautista of his
coming to Manila and that, to aid him in his journey, Bautista forwarded to him secretly 200 pesos;
that after the arrival of Ricarte, Bautista was present, taking part in several of the above-mentioned
meetings whereat the plans of the conspirators were discussed and perfected, and that at one of these
meetings Bautista, in answer to a question of Ricarte, assured him that the necessary preparations
had been made and that he "held the people in readiness." chanrobles virtual law library

It further appears that the appellant, Tomas Puzon, united with the conspirators through the agency of
one Jose R. Muñoz, who was proven to have been a prime leader of the movement, in the intimate
confidence of Ricarte, and by him authorized to distribute bonds and nominate and appoint certain
officials, including a brigadier-general of the signal corps of the proposed revolutionary forces; that at
the time when the conspiracy was being brought to a head in the city of Manila, Puzon held several
conferences with the said Muñoz whereat plans were made for the coming insurrection; that at one of
these conferences Muñoz offered Puzon a commission as brigadier-general of the signal corps and
undertook to do his part in organizing the troops; and that at a later conference he assured the said
Muñoz that he had things in readiness, meaning thereby that he had duly organized in accordance
with the terms of his commission.chanroblesvirtualawlibrary chanrobles virtual law library

Puzon at the trial declared that he had never united himself with the conspirators; that he had
accepted the appointment as brigadier-general of the signal corps of the revolutionary forces with no
intention of ever taking any further action in the matter, and merely because he did not wish to vex
his friend Muñoz by refusing to do so, and that when Muñoz offered him the appointment as brigadier-
general he did so in "a joking tone," and that he, Puzon, did not know that Ricarte was in Manila
organizing the conspiracy at that time.chanroblesvirtualawlibrary chanrobles virtual law library

These statements, however (except in so far as they corroborate the testimony of Muñoz as to the fact
that he had several interviews with Puzon at which plans were entered into for the advancement of
the cause of the conspirators), can not be accepted as true in the light of a written statement signed
by Puzon himself at the time when he was first arrested, part of which is as follows:

Q. What is your name and what is your age, residence, and occupation? - A. My name is Tomas
Puzon; born in Binondo in the Province of Manila; 37 years of age; married; by profession a teacher of
primary and secondary schools, and residing in Calle Concepcion, No. 195, district of
Quiapo.chanroblesvirtualawlibrary chanrobles virtual law library

Q. Do you know Artemio Ricarte? - A. Personally I do not know him, but by name,
yes.chanroblesvirtualawlibrary chanrobles virtual law library

Q. Did you have any information that Ricarte was in these Islands and with what object he came here?
And if you know it to be true, through whom did you get such information? - A. In the first place I had
notice of his coming to the Islands as well as his object by reading the newspapers of Manila, and
secondly because J. R. Muñoz told me the same on one occasion when I was in his house to visit
him.chanroblesvirtualawlibrary chanrobles virtual law library

Q. Did you acquire this information through any other person? - A. No, sir; I have no more information
than that which I have mentioned.chanroblesvirtualawlibrary chanrobles virtual law library

Q. Are you a part of his new revolution presided over by Ricarte? - A. Yes,
sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q. What is the employment ( empleo) which you have in this organization, and who is it who invited
you to join it? - A. J. R. Muñoz, who is general of division of this new organization, spoke to me with
much instance, asking me to accept employment as brigadier-general, chief of signal corps, to which
I, on account of his request and in view of the fact that the said Muñoz is a friend of mine from my
youth, acceded; nevertheless I have organized absolutely nothing in respect to this
matter.chanroblesvirtualawlibrarychanrobles virtual law library

Q. Did you accept the employment and did they give you any commission for it? - A. Yes, sir; I
accepted said employment and although they gave me an order to organize in my brigade I did not do
it, because I had neither the confidence nor the will.chanroblesvirtualawlibrary chanrobles virtual law
library

Q. If you didn't have faith in the said authorization nor the will to carry out what was intrusted to you,
why did you accept employment as general of the brigade? - A. I accepted it on account of friendship
and not to vex a friend, but I never have the intention of fulfilling the obligations.

Puzon, when on the stand in his own behalf, did not deny that he made this statement, but he
attempted to explain it away by saying that when he made it he was so exited that he did not know
just what he was saying. He does not allege that improper means were taken to procure the
confession, and it was proven at the trial that it was freely and voluntarily made and not the result of
violence, intimidation, threat, menace, or promise 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.chanroblesvirtualawlibrary chanrobles virtual law library

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
States vs. 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 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
virtual law library

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 thepulajanes, 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."chanrobles virtual law library
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 immediately
reported the receipt of them to the authorities." chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

Counsel for appellants contend that the constitutional provision requiring the testimony of at least two
witnesses to the same overt act, or confession in open court, to support a conviction for the crime of
treason should be applied in this case, but this court has always held, in conformance with the
decisions of the Federal courts of the United States, that the crime of conspiring to commit treason is
a separate and distinct offense from the crime of treason, and that this constitutional provision is not
applicable in such cases. ( In re Bollman, 4 Cranch, 74; U. S. vs.Mitchell, 2 Dall., 348.)chanrobles
virtual law library

The evidence of record does not sustain the conviction of Aniceto de Guzman. The finding of his guilt
rest substantially upon his acceptance of a number of bonds from one of the conspirators, such bonds
having been prepared by the conspirators for the purpose of raising funds for carrying out the plans of
the conspiracy, but it does not affirmatively appear that he knew anything of the existence of the
conspiracy or that, when he received the bonds wrapped in a bundle, he knew what the contents of
the bundle was, nor that ever, on any occasion, assumed any obligation with respect to these bonds.
He, himself, states that when he opened the bundle and discovered the nature of the contents he
destroyed them with fire, and that he never had any dealings with the conspirators in relation to the
conspiracy or the object for which it was organized.chanroblesvirtualawlibrary chanrobles virtual law
library

We are of opinion, therefore, that the judgment and sentence before us, in so far as it affects the said
Aniceto de Guzman, should be reversed, with his proportionate share of the costs of both instances de
oficio, and that the said Anecito de Guzman should be acquitted of the crime with which he is charged
and set a liberty forthwith, and that the judgment and sentence of the trial court, in so far as it applies
to Francisco Bautista and Tomas Puzon, should be, and is hereby, affirmed, except so far as it imposes
subsidiary imprisonment in the event of insolvency and failure to pay their respective fines, and, there
being no authority in law of such provision, so much of the sentence as undertakes to impose
subsidiary imprisonment is hereby reversed.chanroblesvirtualawlibrary chanrobles virtual law library

After ten days let judgment be entered in accordance herewith, when the record will be returned to
the trial court for execution. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library
Arellano, C.J., Torres, Johnson and Tracey, JJ., concur.
Mapa, and Willard, JJ., concur as to the penalty imposed upon Bautista and dissent as to that imposed
upon Puzon.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-57893 January 30, l987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ELPIDIO OBENQUE alias PEDY, accused-appellant.

PARAS, J.:

This is an appeal from the decision dated May 7, 1981 of the then Court of First Instance of Cebu, 1 finding the
accused Elpidio Obenque, alias Pedy guilty beyond reasonable doubt of the crime of murder and sentencing him to
suffer the penalty of Reclusion Perpetua with all the accessory penalties provided by law, and to pay the heirs of the
deceased, Sergio Cabradilla, the sum of P12,000.00 without subsidiary imprisonment in case of insolvency, and to
pay the costs (Rollo, pp. 6-23).

It appears from the records that at about 9:00 o'clock in the evening of January 18, 1978, a group composed of Victor
Villarin, the deceased Sergio Cabradilla, Edgar Resma, Jose Hortel, Philip Empacis, Titong Cabillon and Ely Boy
Canares were walking along Tonkil Avenue, Minglanilla, Cebu, on their way to Linao where they live (TSN, June 5,
1979, pp. 11-15, 75).

It was already 11:30 o'clock when they were passing the house of accused Elpidio Obenque at Lipata, Minglanilla.
Victor Villarin and Sergio Cabradilla were following their five companions at a distance of twenty-five (25) meters
(Ibid., pp. 16-17). as they approached the house of accused Obenque, he came out of the gate of his residence
allegedly to check the commotion in The street. Sergio greeted the accused: "Good evening, Noy," and the accused
answered: "Good evening, also." After the exchange of greetings, Obenque walked towards the group ahead. Sergio
Cabradilla and Victor Villarin followed the accused and when the latter reached the group, Sergio and Victor Villarin
were about four (4) meters away. Accused Obenque scolded the whole group and asked: "Nganong nagabusar mo
denhi?" (why are you so abusive here?) The accused continued to scold them particularly Ely Boy Canares (Ibid., pp.
19-31, 89-90).

While they were being confronted, the deceased Sergio Cabradilla asked for forgiveness from the accused saying,
"Pasayloa lang mi Noy, di namo usbon" (Please, forgive us, Noy, we'll not repeat it. The accused did not answer but
continued scolding all of them. The deceased Sergio continued to ask forgiveness for about five (5) times on behalf of
the group (Ibid., pp. 31-33).

However, the accused Obenque, with a pistol in his hand, which was later Identified to be a .45 caliber from shells
recovered from the scene of the crime, fired two shots into the air. Except for Victor Villarin who was scared and
Sergio Cabradilla who tried to talk to the accused by asking once more for forgiveness the group slowly dispersed
(Ibid., pp. 33-37).

At this juncture, the accused, who was still infuriated, fired a third shot aimed pointblank at the forehead of Sergio
Cabradilla (Ibid., pp. 37-39, 98-100). The victim fell down and died instantly. The accused continued to move around
Victor Villarin tried to help his fallen companion but the accused pointed the gun at him asking: "Dill ka modagan?
Laban ka ba? (Are you going to run or to defend him?) Upon hearing this, Villarin ran away (Ibid., pp. 40-42).

Meanwhile, the other members of the group arrived at their respective houses in Linao. After twenty-five minutes, the
six companions of the victim together with the victim's four brothers, returned to the scene of the incident to retrieve
the victim's body (Ibid., pp. 45-46). However, they found nothing there except traces of human blood and the slippers
of the Victim's on the exact spot where the group had been confronted by the accused. They searched the nearby
locality of Linao. The victim's brothers also inquired from all the hospitals in Minglanilla as well as in Cebu City but the
body could not be found (Ibid., pp. 47-48).

The following day, January 19, 1978, Villarin reported the shooting incident to the Office of the Station Commander,
Minglanilla, Cebu. Pat. Clarino P. Basabe was assigned to investigate the case (TSN, pp. 49-50, June 5, 1979; TSN,
p. 30, June 6, 1979).lwphl@itç Villarin pointed to the accused Obenque as the assailant of the deceased (TSN, p. 52,
June 5, 1979). The mother and relatives of the victim likewise reported the incident to the Office of the Station
Conmmander (TSN, pp. 3-6, June 6, 1979). It appears further from the records that a certain Pat. Arturo Larrobis
went to the scene of the crime at about 12:00 o'clock midnight on January 18, 1978 and turned over to Pat. Basabe
three (3) empty shells of caliber.45 (TSN, p. 7, June 6, 1979).

Subsequently, the police of Minglanilla received information that the body of a dead man was spotted at Carcar, Cebu
(about 60 kms. from the scene of the incident) (TSN, pp. 8-9, June 6, 1979). Pat. Basabe, Villarin, relatives of the
victim and a photographer proceeded immediately at about 3:00 o'clock in the afternoon of January 19, 1979 to
Tanauan Carcar, Cebu, to investigate the body of the dead man who was found in a deep ravine of about 200 feet
(TSN, pp. 52- 54, June 5, 1979; TSN, pp. 10-12, June 6, 1979).lwphl@itç Villarin and Pat. Basabe Identified the body
to be that of Sergio Cabradilla (TSN, p. 58, June 5, 1979; TSN, p. 15, June 6, 1979).

The body of Sergio Cabradilla was brought back to Minglanilla by the Cosmopolitan Funeral Parlor (TSN, pp. 6667,
June 5, 1979). Later on, an autopsy was performed on the victim's cadaver by Dr. Ceferino Y. Cunanan, the National
Bureau of Investigation (NBI) Medico-Legal Officer for Visayas and Mindanao (TSN, p. 126, July 16, 1979). A
necropsy report prepared by Dr. Ceferino Cunanan dated February 6, 1979 stated among others that the cause of
death of Sergio Cabradilla was a gunshot wound in the head (Exhibit G, p. 3, Folder of Exhibits).

On January 21, 1978, at about 9:30 a.m., the accused, Elpidio Obenque, surrendered to the Philippine Constabulary
(PC) authorities (Exhibit T, p. 18, Folder of Exhibits).

On January 23, 1978, M/Sgt. Victoriano V. Villaremo, officer-in-charge of the Investigation Section Headquarters,
INP, Cebu PC, was dispatched by Capt. Cabigon to Minglanilla to pick up the Brasilia car with Plate No. B-EE164
belonging to the accused (TSN, pp. 3-4, July 18, 1979) which was surrendered on January 19, 1978 to the police
authorities. An ocular inspection of the tangerine rug inside the car showed that there were blood stains. A laboratory
examination of the blood stains on the rug performed by Myrna P. Areola, Forensic Chemist, PC, confirmed that the
spots on the rug were human blood (TSN, pp. 9-13,15-16, July 18, 1979; Exhibit V, p. 20, Folder of Exhibits).

For that killing, Elpidio Obenque, alias "Pedy," was charged with the crime of murder in an information dated April 5,
1979, and amended on May 11, 1979, with the then Court of First Instance of Cebu. The amended information reads
as follows:

The undersigned lst Assistant Provincial Fiscal of Cebu, amending the information for murder filed
against the above-named accused dated April 5, 1979, charges the said accused for murder
committed as follows:
 That on the 18th day of January, 1978, at 11:30 o'clock in the evening, more or less, in the sitio of
Lipata, Barangay Linao, Municipality of Minglanilla, Province of Cebu, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill by
means of treachery, did then and there wilfully, unlawfully, and feloniously shoot Sergio Cabradilla
with an unlicensed caliber .45 pistol hitting him at the midforehead 1. 1 cms. to the left of the
anterior median line, directed backwards, upward and medially to the right and making an exit
located at the scalp at a point 5.5 cms. medial and 13.5 cms. above the right external auditory
meatus causing the instantaneous death of Sergio Cabradilla.

That, after thus shooting to death Sergio Cabradilla, the accused Elpidio Obenque alias Pedy in the
furtherance of his criminal design, loaded the dead body of his victim in his Volkswagen Brasilia
Sedan with Plate No. B-EE 164 series of 1977 and with utmost cruelty, dump the corpse in a ravine
200 meters deep, more or less, at Tanauan, Carcar, Cebu, 60 kms. more or less from the place of
the incident at bar. " (CFI Original Record, Vol. 1, pp. 17- 18).

In the meantime, accused Obenque filed on April 26, 1979 a petition for bail which was opposed on May 2, 1979 by
the prosecuting fiscal (CFI Original Record, Vol. 1, pp. 5-8).

On June 20, 1979, the trial court denied the petition for bail of the accused (CFI Original Record, Vol. I, p. 62).

A motion for reconsideration of the June 20, 1979 order was filed on June 28, 1979 (CFI Original Record, Vol. I, p.
68), and the prosecuting fiscal filed his opposition to said motion on July 1, 1979 (CFI Original Record, Vol. I, p. 78).

On August 24, 1979, the trial court denied the motion for reconsideration (CFI Original Record, Vol. I, pp. 160-161).

It appears likewise that on July 27, 1979, the accused thru counsel, filed a motion to quash and/or recall the warrant
of arrest purportedly issued by the trial court on May 14, 1979 (CFI Original Record, Vol. I, p. 100). On August 13,
1979, the prosecuting fiscal filed his opposition to said motion, and a supplemental motion with manifestation was
filed on August 21, 1979 by the counsel of the accused (CFI Original Record, Vol. I, pp. 118 and
133).lwphl@itç Thereafter, or on September 3, 1979, the trial court denied the motion to quash (CFI Original Record,
Vol. I, pp. 177-181).

The records also reveal that the accused, thru his counsel filed on September 26, 1979 with the Supreme Court a
petition for writ of habeas corpus, certiorari, prohibition with writ of preliminary injunction dated September 24, 1979,
docketed as G.R. No. 51526, seeking, among others, to direct the Jail Superintendent of the Provincial Jail of Cebu to
produce the body of the accused or to order the immediate release of the accused, to restrain the trial court from
proceeding with the trial of Case No. 4417 against the accused, to set aside the September 3, 1979 order of the trial
court and to dismiss the case (Rollo of G.R. 51526, pp. 1-14).

In a Resolution dated November 16, 1979, the Supreme Court First Division, resolved to dismiss the petition for lack
of merit (Rollo of G.R. 51526, p. 116).

The accused, as petitioner therein, moved to reconsider the aforesaid resolution on January 1, 1980 but the same
was denied on January 23, 1980 (Rollo of G.R. 51526, pp. 137 and 142).

Entry of judgment was made on February 22, 1980, and on March 20, 1980, the case was remanded to the court a
quo (Rollo of G.R. 51526, p. 145).

During the arraigrnment on June 5, 1979, accused Elpidio Obenque entered his plea of not guilty (Reno, p. 27; CFI
Original Record, Vol. 1, p. 29; TSN, p. 5, June 5, 1979).

After trial the lower court rendered its decision dated May 7, 1981 and promulgated on May 15, 1981, the dispositive
portion of which states:

WHEREFORE, based on all the foregoing considerations, the Court finds and declares the
accused, ELPIDIO OBENQUE alias "Pedy," GUILTY, beyond reasonable doubt, of the crime of
murder which is the same offense defined and penalized by Article 248 in relation to Article 61,
both of the Revised Penal Code and considering the presence of a mitigating circumstance which
 is voluntary surrender and applying the provisions of the Indeterminate Sentence Law (Act 4103),
as amended), he is hereby sentenced to suffer the penalty of RECLUSION PERPETUA, with the
accessories provided by law and to indemnify the heirs of the late Sergio Cabradilla the sum of
(P12,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs.

SO ORDERED. (Rollo, pp. 22-23).

From the aforesaid judgment, accused Obenque filed on July 17, 1981, a notice of appeal dated June 4, 1981 to the
Court of Appeals on both questions of fact and of law (Rollo, p. 24).

On September 3, 1981, the records of the case were forwarded to the Supreme Court because the penalty imposed
upon the accused is Reclusion Perpetua (Rollo, p. 1).

In his appellant's brief, accused Elpidio Obenque assigned the following errors:

I. THAT THE COURT A QUO ERRED IN FINDING AND DECLARING THAT THE ACCUSED IS GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED BASED ON INSUFFICIENT CIRCUMSTANTIAL EVIDENCE.

II. THAT THE COURT ERRED IN FINDING THAT THE ACCUSED ELPIDIO OBENQUE IS THE VERY
PERPETRATOR OF THE CRIME.

III. THAT THE FINDINGS OF THE TRIAL COURT AS TO THE QUALIFYING CIRCUMSTANCES OF MURDER ARE
THEREFORE INCONSEQUENTIAL.

IV. THAT THE TOTALITY OF THE EVIDENCE FOR THE PROSECUTION DOES NOT OVERCOME THE
CONSTITUTIONAL PRESUMPTION OF INNOCENCE.

V. THAT THE DECISION OF THE TRIAL COURT DOES NOT CONFORM TO THE MATERIAL AND RELEVANT
EVIDENCE. (Rollo, p. 55; Brief for the Appellant, p. 1)

The issues posed in the instant proceeding can be reduced into two, as follows:

1. Whether or not the trial court erred in finding the accused guilty beyond reasonable doubt of the
crime of Murder based on insufficient circumstantial evidence.

2. Whether or not the aggravating circumstances of evident premeditation and treachery can be
considered against the accused.

The accused claims that the trial court relied only on circumstantial evidence for his conviction. The claim is not
meritorious because he was clearly and positively Identified by the prosecution witnesses as the assailant. For one,
witness Victor Villarin actually saw the accused fire at the victim Sergio Cabradilla (TSN, June 5, 1979, p. 37; Exhibit
H, Folder of Exhibits, p. 4). Nobody, except the accused, confronted the members of the group of the deceased
Sergio Cabradilla during the time of the shooting. It is undisputed that the accused came down from his house on that
fateful night to investigate the group that was making noise in the street (TSN, October 16, 1980, p. 67). He was so
angry that he confronted the group and even scolded the members (TSN, October 16, 1980, p. 91).

When the accused fired two successive shots into the air, the members of the group, except Villarin and the victim,
dispersed and ran away for safety (TSN, June 5, 1979, p. 35). The third shot was aimed pointblank at the victim who
was barely a meter away from the accused (TSN, June 5, 1979, p. 37). The shot at the victim was so sudden that the
latter had no opportunity to defend himself. Sergio Cabradilla was actually talking and apologizing for the conduct of
the members of his group when he was suddenly fired upon by the acccused (TSN, June 5, 1979, pp. 36-37).

The records reveal that the accused used a .45 cal. pistol as gleaned from the three empty shells recovered from the
scene of the crime, which also confirm the number of shots he had fired that night (TSN, June 5, 1979, pp. 36-37).
The testimony of Victor Villarin, pointing to the accused as the perpertrator of the crime, was made in a direct and
forth-right manner, and is afirmed by his sworn statement made on the day following the incident, January 19, 1978,
in the office of the Station Commander (Exhibit "H," Folder of Exhibits, pp. 4-5).lwphl@itç

Furthermore, Jose Hortel, another eye-witness to the incident, gave a sworn statement to the effect that the accused
fired to successive shots in the air, after which he pointed his gun at the members of the group, and when the gun
was aimed at Sergio, the gun suddenly fired and Sergio fell. This sworn statement of Jose Hortel was given on the
day following the incident on January 19, 1978, when extraneous forces were not yet exerted upon him and his only
motive was to tell the truth" (See Exhibit I, I-translation, Folder of Exhibits, pp. 6-8). It appears, however, that on
March 20, 1979 or fourteen (14) months after the incident, Jose Hortel made a retraction exculpating the accused,
which the trial court did not consider because it was highly suspicious (See Rollo, p. 20; CFI Decision, p. 15). It is
generally said that retraction of witnesses must be taken warily (People vs. Lao Wan Sing, 125 SCRA 45 [1983]).

Therefore, the positive Identification made by Victor Villarin and Jose Hortel of the accused Obenque as the
perpetrator of the crime cannot be overcome by the mere denial of the accused himself and defense witnesses,
Vicente Oberes and Wildredo Deiparine, who stated that the firing came from the group but without Identifying who
fired the gun. The positive Identification of the accused by the witnesses that he killed the victim establishes the guilt
of the accused to a moral certainty (People vs. Demeterio, 124 SCRA 914 [1983]; People vs. Cunanan, 75 SCRA 15
[1977]).

Accused Obenque contends also that the prosecution should have presented Jose Hortel to corroborate the
testimony of Victor Villarin, instead of just relying on his sworn statement taken before the police.

The contention is without merit. The matter of presenting witnesses for the People is a prerogative of the prosecuting
fiscal. In the instant case, there was no need to present Jose Hortel because the testimony of Victor Villarin was
already clear, sufficient and convincing. Thus, it has been held that the testimony of a single witness, if credible and
positive and if it satisfies the court beyond reasonable doubt, is sufficient to convict (People vs. Vengco, 127 SCRA
242 [1984]; People vs. Martinez; 127 [1983]). Likewise, the credibility of evidence is not necessarily determined by
the number of witnesses but the quality of testimony (People vs. Pascual, 127 SCRA 174 [1984]).

II

Evident premeditation was not present in the commission of the crime. To properly appreciate evident premeditation,
it is necessary to establish with proof, as clear as the evidence of the crime itself, (1) the time when the offender
determined to commit the crime; (2) an act manifestly indicating that the culprit had clung to his determination; and (3)
a sufficient lapse of time between the determination and the execution to allow him to reflect upon the consequences
of his act (People vs. Guiapar, 129 SCRA 539 [1984]; People vs. Gravino, 122 SCRA 123 [1983]; People vs.
Camano, 115 SCRA 688 [1982]). In the case at bar, the prosecuting fiscal failed to establish the aforesaid requisities.
BEsides, there is no showing that the accused had planned to kill the victim Sergio Cabradilla.

However, it is clear that treachery attended the commission of the crime and qualifies it to murder. Attendance of
treachery as a qualifying circumstance is founded upon the concurrence of two (2) conditions, to wit: (1) the
employment of means, method, or manner of execution which would insure the offender's safety from any defensive
or retaliatory act on the part of the offended party, which means, that no opportunity is given the latter to defend
himself or to retaliate; and (2) that such means, method, or manner of execution was deliberately or consciously
chosen (People vs. Ganut, 118 SCRA 35 [1982]). It has been proven that the act of asking for forgiveness from the
accused Obenque. The shooting of the victim was so sudden that the latter had no opportunity to defend himself.
Treachery is present in case the attack is sudden and unexpected (People vs. Alfaro, 119 SCRA 204 [1982]).

Finally, accused Obenque admitted that the Volkswagen Brasilia car brought to the PC Headquarters in Cebu
belonged to him. Just after the victim was shot, his body was removed from the scene of the incident and found in a
ravine at Tanauan, Carcar, Cebu, which is about sixty (60) kilometers away from the scene of the crime. A laboratory
examination of the tangerine rug inside the Brasilia car of the accused conducted by Myrna Areola, Forensic Chemist
of the PC, showed that the blood stains on the car's rug were those of a human being. Evidently, the accused
decided to load the dead body of his victim into his Brasilia car and dumped it into a ravine 200 feet deep at Tanauan,
Carcar, Cebu in order to hide the effects of his criminal act. This actuation of the accused Elpidio Obenque in
dumping the body of his victim constitutes an outrage or scoffing at the corpse of the victim which is another
qualifying circumstance in the commission of the crime of murder.
PREMISES CONSIDERED, the judgment of conviction is hereby AFFIRMED, with the modification that the civil
indemnity is hereby increased to P30,000.

SO ORDERED.

Fernan (Chairman), Alampay, Gutierrez, Jr., Padilla and Bidin, JJ., concur.

Footnotes

1 Penned by Judge Jose Ramolete.

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-75390 March 25, 1988

PEOPLE OF THE PHILIPPINES, appellee,

vs.
DANILO VALDEZ and SINIPLICIO ORODIO alias "Kamlon", appellants.

FELICIANO, J.:

This case is before us on automatic review of the decision of the Regional Trial Court, First Judicial Region, Branch
26, San Fernando, La Union, convicting the accused-appellants Danilo Valdez and Simplicio Orodio of the crime of
murder and sentencing each of them to death.

The accused Danilo Valdez and Simplicio Orodio were charged in an information which read as follows:

That on or about the 7th day of June, 1977, in the Municipality of Santol, Province of La Union,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually aiding one another, armed with a fire arm, with treachery
and evident premeditation and with deliberate intent to kill, did then and there willfully, unlawfully
and feloniously, shoot Eleno Maquiling inflicting upon him a gunshot wound which caused the
victim's instantaneous death.

That the aggravating circumstance of nighttime was present in the commission of the crime.
Contrary to Article 248 of the Revised Penal Code.

After arraignment and trial, the trial court rendered in due course, on 27 June 1986, a decision finding both of the
accused guilty of murder. The dispositive portion of the decision states:

WHEREFORE, in view of the foregoing, this Court finds the accused Danilo Valdez and Simplicio
Orodio alias 'Kamlon' guilty beyond reasonable doubt of the crime of murder and judgment is
hereby rendered imposing upon each of them the Capital penalty of death; to indemnify the heirs of
Eleno Maquiling the sum of P30,000.00; to reimburse the expenses in the sum of P3,000.00 to said
heirs, and to pay the costs.

The bail bonds posted by the accused for their provisional liberty are hereby cancelled and their
immediate arrest ordered.

The accused-appellants argue that the trial court erred in the following respects:

1) That the evidence of the prosecution does not establish the guilt of the accused beyond
reasonable doubt; and

2) That the evidence of the prosecution is based simply on suspicion.

We will address these arguments together.

From the record, the facts of the case may be collated as follows:
The house of the Maquiling family stands on the slope of a mountain in Barangay Ambagat, Santol, La Union. At
about 8:00 o'clock in the evening of 7 June 1977, the victim Eleno Maquiling, his sisters Leticia and Thelma, his
mother Esmenia, and his father Juanito were an in the yard of their house. Esmenia and Juanito were under the
awning of their house facing north, engaged in stringing together tobacco leaves. The victim's brother Dionisio was
eating his dinner in the wall-less kitchen located on the ground floor of the house. The victim Eleno was seated with
his back toward the north and plucking a guitar. The place and its surroundings were lighted by a 300 candle power
petromax lamp hanging under the northern end of the awning of the house. 1

While the Maquilings were thus seated in their yard, a relative of the family, one Carolina, arrived and asked Esmenia
to accompany her to a prayer meeting. Esmenia demurred and instead asked Eleno to accompany Carolina. The
victim was then just about two (2) meters away from his parents and about to stand up when suddenly a very loud
gun shot rang out from the northern side of the yard and Eleno fell to the ground, crying out to his father for help.
Juanita rushed to his fallen son and carried him into their house; Eleno, however, died immediately thereafter.

The victim's mother Esmenia was about to succour Eleno when she instinctively looked toward the direction from
whence the gunshot came and saw the two (2) accused, Danilo Valdez and Simplicio Orodio, running down the hill
away from the bamboo groves on the northern side of the house. According to Esmenia, the accused Danilo was
wearing a blue shirt and dark pants and carrying a long firearm, while the other accused Simplicio was running along
side the former. Dionisio Maquiling, brother of the victim, also testified that he too had seen Danilo with a gun and
Simplicio both running away in a westernly direction. Danilo stated that he was then about seven (7) meters away
from the accused-appellants. 2 Danilo Valdez was a neighbor and a relative of the Maquilings, while Simplicio Orodio
was their old accquaintance residing in Sitio Village, Barangay Corooy of the same town; thus, both were well-known
to Esmenia and Dionisio Maquiling.

On 8 June 1977, the Municipal Health Officer of Balaoan, Dr. Monico O. Morales, conducted an autopsy which
showed that the victim Eleno had sustained eight (8) gunshot (pellet) wounds on his back:

1. Wound, gunshot, ½; inch longest dia., 1 cm. below base of neck, medial, pellet plowed slightly
upward and found its exist at the lower 3rd of neck, left, measuring 3/4 inch longest diameter. (Thru
and thru).

2. Wound, gunshot, ½ inch longest dia medial, 1 inch lateral to vertebral column, right, pellet
plowed upward and found its exit at the base of neck, left, measuring ¾ longest diameter. (Thru
and thru).

3. Wound, gunshot, ½ inch longest dia level of 4th intercostal space, back, right, penetrating the
chest cavity, pellet was recovered at the upper lobe of right lung.

4. Wound, gunshot, ½ inch longest dia 1 inch above armpit, back, right, pellet plowed slightly
upwards and to left. Pellet was not recovered.

5. Wound, gunshot, ½ inch longest dia 8th intercostal space, back, right, 1 inch lateral to the
vertebral column, pellet penetrated check cavity hitting lower lobe of lungs, right. Pellet was not
recovered.

6. Wound, gunshot ½ inch longest dia medial, back, left, level of 8th intercostal space, hitting the
lower lobe, lung, left. Pellet was not recovered.

7. Wound, gunshot. ½ inch longest dia chest, back medial, left, (Level of 9th interspace),
penetrating chest cavity hitting lower lobe, lung, left. Pellet was not recovered.

8. Wound, gunshot, ½ inch longest dia postero-lateral, back, I inch below lowest rib of chest, right.
Pellet was recovered at the abdominal wall, hypochondic region, front, right. Two (2) pellets were
given to Chief of Police, Segundo Tuvera. 3

The morning after the shooting, on 8 June 1977, Sgt. Segundo Tuvera of the Integrated National Police, Santol, La
Union, went to the house of the Maquilings to investigate the death of Eleno. 4 He saw a petromax lamp hanging from
the awning of the northern end of the house, as well as footprints near the bamboo groves near the northern side of
the house. During his investigation, neither Esmenia nor Dionisio informed Sgt. Tuvera of what they had seen.

On 10 June 1977, Juanito Maquiling, the victim's father, executed a sworn statement before the police in the Santol
Police Substation. Juanita admitted in his statement that he had not seen the accused-appellants on the night of the
shooting. He did relate, however, that three (3) days prior to the shooting of Eleno, Eleno had informed him that in
case something untoward happened to him (Eleno), the accused-appellants Danio Valdez and Simplicio Orodio
should be held responsible, since he (Eleno) had quarrelled with them concerning their stealing and robbing. 5Juanita
further, stated that the accused Danilo has had a personal grudge against Eleno; Danilo had mortgaged to Eleno's
brother a stolen spading fork, a circumstance that Eleno discovered when the real owner of the spading fork came to
talk to him. Esmenia, Eleno's mother, gave no sworn statement on that day. Ten (10) days later, on 20 June 1977,
however, she made a sworn statement to the Philippine Constabulary in San Fernando, La Union. Shortly thereafter,
on 23 June 1977, Dionisio Maquiling, Eleno's brother, gave his own separate sworn statement also to the Philippine
Constabulary. Both Esmenia and Dionisio Identified Danilo Orodio as Eleno's killers. 6

At the trial, Esmenia Maquiling was firm and categorical in Identifying the appellants as the men she saw running
from the bamboo groves immediately after the shooting —

Q. When you heard that gunshot, what did you do?

A. We immediately rushed to his side and we found him on the ground, sir.

Q. From what direction did you hear the gunshot?

A. North of our yard, sir.

Q. When you went to the succour of your son, what else did you do?

A. When I went, to give succour to my son, I turned and I saw these two, sir,

Q. Where did you see the two accused?

A. North of our yard, sir.

Q. How far were they from you when you saw them?

A. Witness indicating a distance of more or less five meters.

Q. When you saw the two accused, did you see anything in their possession?

A. They have, sir, (Witness indicating a length of about a foot), and it was Danilo
Valdez who was holding that object.

Q. Were you able to recognize that object which Danilo Valdez was then
holding?

A. It was a gun, sir.

Q. When you saw Danilo Valdez and Simplicio Orodio north of your yard, what
were they doing?

A. I saw Danilo Valdez holding the gun while Simplicio Orodio ran downhill and
then Danilo Valdez followed, sir.
Q. You Id that you saw Danilo Valdez and Simplicio Orodio north of your yard. In
relation to the place where you heard the gunshot, where were they?

A. Near the bamboo grove which is located north of our house, sir?

Q. In relation to that bamboo grove where you heard the gunshot, where were
Danilo Valdez and Simplicio Orodio at the time you saw them?

A. They were east of the bamboo grove, sir.

Q. How far were they from that bamboo grove?

A. Witness referring to a distance of about 6 to 6-½ meters away.

COURT:

Q. How far were you from the accused when you recognized them?

A. Less than a meter away when I recognized them, sir.

FISCAL:

Q. You Id that the distance between you and the two accused at the time you
saw them was five meters more or less. Upon questioning of the court, you Id
that the distance is less than a meter. Which is true?

A. Witness pointing to a distance of more or less five meters.

Q. How were you able to recognize the two accused at that distance of five
meters from you considering that it was nighttime?

A. There was a light from the petromax lamp which was hanging [from] the
awning of our house, sir.

Q. That part of the house where this awning is located, is there a wall
surrounding the awning?

A. None, sir.

Q. That petromax lamp which you said was hanging under the awning of your
house, how high is the petromax light from the ground level?

A. The height is 12 feet, sir.

Q. How big was the petromax light?

A. About two feet, sir. 7

Esmenia's testimony was corroborated by the equally definite testimony of

Dionisio Maquiling, who declared that:

Q. Where were you at the time your brother was shot to death?

A. I was in our kitchen eating.

 Q. Where was your brother then at the time he was shot in relation to your
house?

A. He was west of our kitchen.

Q. In what particular part of your house, inside or outside?

A. Outside of our house.

Q. What time was your brother shot to death?

A. More or less 8 o'clock in the evening.

Q. You said you were in the kitchen of your house eating and you Pointed to
Danilo Valdez and Simplicio Orodio alias "Kamlon" as the persons who shot your
brother. How were you able to see Simplicio Orodio and Danilo Valdez shoot
your brother?

A. I saw them.

Q. Will you relate how were you able to see Danilo Valdez and Simplicio Orodio
alias Kamlon shoot your brother Eleno Maquiling?

A. When I was eating facing westward I heard a gunshot and when I looked
through the north I saw Danilo Valdez running being followed by Simplicio
Orodio.

Q. When you looked northward and you saw Danilo Valdez and Simplicio Orodio
running, did you see anything in their possession?

A. A gun. (Witness showing a length of about half a meter).

Q. Who of the two, Danilo Valdez and Simplicio Orodio was hiding the gun?

A. Danilo Valdez. 8

The trial court found the testimony of witnesses Esmenia and Dionisio as positive, credible and reliable. We find no
reason to disagree with the finding of the trial court. It is commonplace that "the findings of the trial court as to the
credibility of the witnesses are to be given great weight and a high degree of respect by the appellate court". 9 There
is nothing in the record to show that the prosecution witnesses were moved by any improper motive to accuse falsely
the accused-appellant — one a relative and the other an old acquaintance — of so grave a crime as murder.

The circumstance that Esmenia waited for thirteen (13) days after her son's assassination before reporting the
Identities of the accused to the authorities, was not unnatural in itself. She explained the delay by saying that she was
afraid to talk about the killing and that she had seen the accused loitering frequently around the Maquilings' house,
carrying a gun, after the burial of her son.10 The trial court observed that Esmenia's fear —

was not imaginary because the night that she reported the Identities of the accused their house
was stoned by unidentified persons. The delay was satisfactorily explained. In People vs. Martinez,
127 SCRA 260, it was held that delay of witness for several months, because of fear, in reporting
the incident to the police does not affect credibility. "Fear of likely retaliation by the several accused
who were still at large has been considered as a justified reason for the witnesses' delay in coming
forward with their testimony' (People vs. Sampang, 16 SCRA 531; People vs. Equal, 14 SCRA
89). 11
This explanation does not appear incredible in itself and certainly such a delay of thirteen(13)days, under the
circumstances of this case, does not warrant a conclusion that her testimony as to the Identities of the killers of her
son was false. In People v. Martinez, 12 the Court held that the failure of a witness to reveal immediately the Identities
of the accused does not militate against his credibility.

Both Esmenia Maquiling and Dionisio Maquiling did not testify that they had actually seen either Danilo Valdez or
Simplicio Orodio shooting at the deceased victim. The principal evidence against the accused is, therefore,
circumstantial in character. The trial court recognized this and was careful to analyze the chain of circumstantial
evidence on the basis of which the trial court concluded that the two (2) accused had killed Eleno Maquiling:

While the prosecution failed to present an eye witness to the actual shooting by the accused of
deceased Eleno, the chain of circumstances, prior and subsequent to the killing, leaves no room for
doubt that accused are the guilty persons. The rule is that before conviction upon circumstantial
evidence, the circumstances proved should constitute an unbroken chain which leads to one fair
and reasonable conclusion pointing to the accused as the authors of the crime. (People vs.
Pamintuan, 127 SCRA 820). In this case, this requisite has been fully met.

Rule 133, Section 5 of the Revised Rules of Court provides:

CIRCUMSTANTIAL EVIDENCE, WHEN SUFFICIENT. — Circumstantial

evidence is sufficient for conviction if:

(a) There is more than one circumstances;

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

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

beyond a reasonable doubt.

Tested by the rule stated above, and considering that Eleno was killed by a shot in the back and
suffered eight (8) pellet wounds from one gunshot only; that the accused were immediately seen
running down-hill away from the scene after the gunshot report with accused Danilo v.
Valdez carrying a long firearm; that three (3) days before the incident there was already bad blood
between the victim and accused Danilo Valdez as the victim confided to his father Juanito
Maquiling that if ever he would be shot accused Danilo Valdez is the one to be blamed; 13 that
when the place where the clime was committed is an isolated place and it is highly probable that
some other malefactors could have been present; and that footprints were seen by the police
investigators behind the bamboo grove where the accused were seen to come from immediately
after the shooting that Esmenia Maquiling even described the clothing of accused Danilo Valdez;
that the two accused are well known to the victim's family thereby precluding the possibility of
mistaken Identity; all these proven facts afford sufficient or a reasonable inference that the two
accused were indeed the killers of the victim. 14

In his brief, the Solicitor General took the position that accused-appellant Simplicio Orodio should be acquitted for
lack of sufficient evidence to sustain this conviction either as a principal or an accomplice. The Solicitor General said:

In the case at bar, the information charged Orodio as having allegedly conspired with Valdez in
killing Eleno. The prosecution did not however adduce any evidence establishing the aforesaid
alleged conspiracy between Valdez and Orodio to commit the crime charged. The only fact that the
prosecution was able to successfully prove was the presence of Orodio at the crime scene when he
was seen running together with Valdez by Dionisio and Esmenia after Eleno was gunned down and
that he was a barkada of Eleno. It is submitted that in the light of the aforecited ruling in the Madera
case, there exist no factual and legal basis to sustain the conviction of Orodio either as a principal
or accomplice in this case. 15

We are unable to agree with the Solicitor General, whose view appears to be too drastic a simplification of the
evidence that was in fact before the trial court. Orodio was present with Valdez at the time Eleno Maquiling was killed
by a shotgun blast at his back. He was in the company of a man running with a shotgun, at approximately 8:00
o'clock in the evening, immediately after the fatal shooting, just outside the Maquilings house where he had no
business being if he were not acting in concert with Danilo Valdez, the accused-appellant who carried the shotgun.
He was a close friend (barkada) of the accused Danilo Valdez, both of whom the deceased victim had Identified as
probably responsible should any untoward event befall the victim. Simplicio Orodio completely failed to explain what
he was doing with Danilo Valdez the night of the killing, on the one hand. Upon the other, both Danilo Valdez and
Simplicio Orodio pleaded the same alibi. Valdez and Orodio both testified that they were in Cervantes, Ilocos Sur,
when Eleno was shot to death. Their common alibi remained uncorroborated for both failed to present either the
mother of accused Danilo Valdez who was supposed to have come to Cervantes Ilocos Sur, to inform them that
Eleno Maquiling had been shot to death, or any other witness for that matter. The trial court found the accused
common defense of alibi as non-credible "as it was not impossible for the accused to be present at the scene of the
crime. 16

We hold that the prosecution's evidence was more than adequate to sustain the finding of the trial court of a
conspiracy between Danilo Valdez and Simplicio Orodio. Conspiracy being present, it does not matter that the
prosecution had failed to show who as between the two actually pulled the trigger of the shotgun that killed Eleno
Maquiling. 17 Both Danilo Valdez and Simplicio Orodio are liable as co-conspirators since any act of a co- conspirator
becomes the act of the other regardless of the precise degree of participation in the act. 18

The trial court correctly appreciated the presence of treachery and evident premeditation. The accused had purposely
sought nocturnity and hid themselves behind the bamboo groves located close by the victim's house and had fired at
Eleno Maquiling suddenly, without any warning, from behind obviously to ensure the success of their deadly purpose
without any risk to themselves and without any possibility of retaliation. Three (3) days before his assassination,
Eleno was already apprehensive for his life when he disclosed to his father, Juanito Maquiling, his quarrel with Danilo
Valdez and Simplicio Orodio over the latter's thievery and robbery. Clearly, the accused had planned to kill Eleno
some days before the fateful night of 7 June 1977; the shotgun blast at the back of Eleno was not the result of a spur
of the moment decision.

Since both treachery and evident premeditation were present, and only one (1) qualifying circumstance is necessary
to constitute homicide into murder, evident premeditation may be considered as a generic aggravating
circumstance. 19 The circumstance of nighttime is, however, absorbed by treachery. 20 A second aggravating
circumstance — that the victim who had given no provocation was slain in his dwelling — was also found by the trial
court. 21

WHEREFORE, premises considered, the decision of the trial court finding Danilo Valdez and Simplicio Orodio guilty
beyond reasonable doubt of the crime of murder is hereby AFFIRMED. In view of the abolition of capital punishment
under the 1987 Constitution, and in view of the presence of two (2) aggravating circumstances not offset by any
mitigating circumstance, the applicable penalty is reclusion perpetua.

SO ORDERED.

Fernan (Chairman), Gutierrez, Jr., Bidin and Cortes, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-69564 January 29, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JUAN ESCOBER y GERALDE, MACARIO PUNZALAN, JR., y GUEVARRA, RICHARD DOE, PETER DOE AND
JUAN DOE, accused. JUAN ESCOBER y GERALDE and MACARIO PUNZALAN, JR., y GUEVARRA, accused-
appellants.
G.R. No. L-69658 January 29, 1988

JUAN ESCOBER y GERALDE, petitioner,

vs.
HON. OSCAR LEVISTE, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH XCVII, QUEZON CITY and
PEOPLE OF THE PHILIPPINES, respondents.

FERNAN, J.:

These consolidated cases originated from the decision rendered by Judge Oscar Leviste in Criminal Case No. Q-
22896 of the Regional Trial Court of Quezon City, Branch XCVII, finding the accused-appellants Juan Escober y
Geralde and Macario Punzalan, Jr. y Guevarra guilty beyond reasonable doubt of the crime of Robbery with
Homicide, sentencing them to suffer the supreme penalty of DEATH and to pay jointly and severally the heirs of the
victims compensatory damages of P12,000.00 for each of the victims and moral damages of P200,000.00 G.R. No.
69564 is the automatic review of the death sentence while G.R. No. 69658 is a petition for review on certiorari of said
decision, the recourse taken by accused-appellant Juan Escober 'to cut short that long period of wait for a final
resolution of his fate." 1

Juan Escober, together with four unidentified persons designated as John Doe, Peter Doe, Richard Doe and Juan
Doe, were charged with the crime of Robbery with Homicide before the Regional Trial Court of Quezon City in an
Information dated December 9, 1982. He entered a plea of "Not Guilty" with the assistance of counsel Atty. Hipolito
de Peralta upon arraignment on March 2, 1983.

On March 29, 1983, the Information was amended to include accused-appellant Macario Punzalan, Jr. as one of the
accused therein. He, too, pleaded "Not Guilty" during the arraignment on April 22, 1983, assisted by court-appointed
counsel, Atty. Benigno Mariano, who at that time had replaced Atty. Hipolito de Peralta as counsel de parte for Juan
Escober.

A joint trial of the accused ensued. The prosecution presented its evidence, summarized by the Solicitor General in
his Consolidated Brief, as follows:

One of the alleged co-conspirator (sic), Amadeo Abuyen alias Roberto Alorte, * was formerly a co-
security guard of appellant Juan Escober at the Bee Seng Electrical Supply, Inc., a family
corporation owned by the couple Vicente Chua and Lina Chua. It is located inside a walled
compound about 50 meters away from the residence of its owner, at 24 Joy Street, Grace Village,
Balintawak, Quezon City. About 4 months prior to the incident, Abuyen was relieved by Domingo
Rocero for being always absent and found sleeping while on duty. [pp. 5-8, tsn, Aug. 16, 1983; pp.
2-10, tsn, Sept. 14, 1983; pp. 6-8, tsn, April 22, 1983).

At the time of the incident on December 3, 1982, Rocero's tour of duty was from 7:00 in the
morning to 7:00 in the evening. He left his post at about 7:30 P.M. that evening after he was
relieved by appellant Juan Escober. On his way home, he passed by Barangay Balingasa in
Balintawak, where he saw Amadeo Abuyen in the store of Colonel Samson drinking beer with three
companions, one of whom he later Identified as the appellant Macario Punzalan, Jr. [pp. 4-11, tsn,
April 22, 19831.

After Rocero had left his point, (sic) Vicente Chua went to his office at the Bee Seng Electrical
Supply as he usually does after office hours, accompanied by his 13-year old son Irvin and 6-year
old daughter Tiffany On their way, he saw appellant Escober at his post. At the office, the two
children watched a television program, as their father proceeded to the bathroom to take a bath
[pp. 10-17, tsn, Sept. 14, 1983].

Meanwhile, Abuyen and his three companions rode a tricycle and proceeded to the Bee Seng
Electrical Supply. Upon alighting thereat, Abuyen knocked at the little door of the gate. Appellant
Escober, peeped thru the hole and opened the door. Then after Abuyen had talked with Escober,
the former asked Punzalan to wait outside, while he (Abuyen) and his two other companions went
inside [pp. 4-5, tsn, Nov. 9, 1983].

At this juncture, the victims' mother, Mrs. Lina B. Chua, left their residence to join her husband and
two children. On her way, she noticed that the pedestrian gate was wide open with the appellant
Punzalan standing there. She shouted why the gate was opened, but nobody answered. Suddenly,
she heard of shot coming from the direction of the garage; and when she looked thereat, she saw
Abuyen and the appellant Escober walking towards the gate. So, she rushed back inside the house
to contact her husband through the intercom. But since the intercom was out of order, she hurriedly
went outside and met appellant Escober who volunteered the information "that he was not hit." [pp.
9-20, tsn, Aug. 16, 1983].

Upon the other hand, Vicente Chua was inside the bathroom, when he heard the gunshot. He
hurriedly went out and saw her (sic) son Irvin lying on the sofa while her (sic) daughter Tiffany was
lying on the floor, both mortally wounded. Beside her (sic) daughter, he saw a scissor blade [Exhibit
'E' fun of blood. He also observed that everything was scattered in his office, with all Ms drawers
opened. Later, he found out that the P5,000.00 cash he kept in one of the drawers was lost [pp.
1314, 31-36, tsn, Sept. 14, 1983].

Immediately, he went out and shouted for help from his wife to bring out the car as their children
was (sic) stabbed and bleeding. Forthwith, she got one car, while her eldest son drove a second
one. After Vicente Chua had brought the two wounded children inside the two cars, they were
brought to the Chinese General Hospital where they were pronounced dead upon arrival. [pp. 22-
26, tsn, Aug. 16, 1983; pp. 13-14, tsn, Sept. 14, 1983].

It was about 8:45 in the evening of December 3, 1982 when Police Investigator Oscar Francisco
was dispatched to investigate the incident. And, since the victims were already brought to the
Chinese General Hospital, he was instructed to proceed thereto. When he arrived at the hospital at
past 9.00 o'clock P.M., he found the victims already dead. Whereupon, he conducted a cursory
examination of the victim and indicated on two separate sketches (Exhibits "C" and "D"), the 12 and
11 stab wounds sustained by Irvin Chua and Tiffany Chua, respectively. From there, he proceeded
to the scene of the crime, where he met Corporal Ibuan Pat. Robanera and a police photographer,
who arrived to assist him in the investigation [pp. 3-9, tsn, July 5, 1983].

Corporal Ibuan handed to Francisco a blood-stained blade of a scissor (Exhibit "E") which the
former said was found beside the pool of blood inside the room where the incident happened. In
the course of his investigation, Francisco noticed that the drawers inside the office of Vicente Chua
were forcibly opened with its (sic) contents scattered. Upon subsequent interview with Vicente, he
likewise learned that cash amounting to P5,000.00 was taken by the culprits in one of said drawers
[pp. 9-13, Ibid].

Thereafter, Francisco invited for questioning at the Police Headquarters appellant Escober, the
security guard on duty then at the Bee Seng Electrical Supply, who voluntarily gave his version of
the incident (Exhibit "F"). Aside from that of Escober, the written statements of the victims' parents,
Vicente Chua and Lina B. Chua, were also taken (Exhibits "G" & "H", respectively). Thereafter,
Francisco referred on December 8, 1983 [sic] (Exhibit "I") the result of his investigation to the City
Fiscal who wrote at the left hand margin thereon the following notations: "Detained the accused
all prima facie case exist(s) and that accused is probably guilty thereof. No bail recommended. [pp.
13-23, Ibid].

Subsequently, on the morning of December 10, 1982, the police apprehended the appellant
Punzalan, who in a police line-up was readily Identified by the victims' mother, Una Chua, as one of
those she saw standing at the open gate of their compound during the night of the incident on
December 2 (sic), 1982. Another statement (Exhibit "F") was, therefore, taken on December 10,
1982 from the victims' mother to supplement the previous statement she gave on December 8,
1982. Also taken on even date were the statements of Security Guard Jesus Zaragosa (Exhibit "K")
and that of Virginia Alorte Abuyen, the mother of one of the suspects who claimed that her son,
Amadeo Abuyen, mentioned to her his four [4] companions, including the herein two appellants, in
the commission of the crime. Even appellant Punzalan waived his constitutional rights under
custodial investigation and voluntarily and willingly gave his statement (Exhibit "M") wherein he did
 not only admit his participation in the commission of the crime, but also implicated appellant Juan
Escober [pp. 25-26, Ibid; pp. 2-12, tsn, July 6, 1983].

Thus, in his second referral dated December 13, 1983 [sic] (Exhibit "J") to the Fiscal, Police
Investigator Francisco named the five [5] accused as: Juan Escober y Geralde, Macario Punzalan,
Jr. y Guevarra, Amadeo Abuyen y Alorte, alias Florante Bato, alias Dodong and a certain Peter
Doe, albeit, only the herein two appellants were apprehended. [pp. 7-8, tsn, July 6, 1983]. 2

Thereafter, accused-appellant Juan Escober took the witness stand to testify in his defense. His testimony is deed in
his Brief, thus:

Escober was then a Security guard and belonged to the Western Private Detective Security since
January 1, 1982 and was assigned at Vising Electrical Supply at Joyce St. Grace Village,
Balintawak, Quezon City,owned by Vicente Chua and Lina Saw Chua. On December 3, 1982, at 7
p.m. he reported for work. When his companion left and he arrived (to take over) he cleaned the
guardhouse, a routinary work because Mr. and Mrs. Chua did not like to see the guardhouse dirty
and also because after the security guard leaves, the security guard on duty must clean it. There
was a janitor but the security guards used to clean the guardhouse. As security guard, he had a
gun but on this occasion he left it in the locker because he was cleaning the guardhouse. Then
when he was to throw the garbage, Alorte arrived and talked to him because he, Alorte alias
Abuyen, wanted to, and two men [also accused named Does as they are also still at large] entered
and one man [co-accused Punzalan] was left at the gate. Escober was not able to talk to Alorte
alias Abuyen because when Alorte came, one of his companions aimed a gun at Escober and also
a knife and they said they would kill him. He does not know the man who aimed a gun at him. He
only knows Alorte because he Alorte used to be his co-guard at Vising Electrical Supply. They then
asked Escober to get into (climbed) the pick- up car inside the garage and the other man was
pointing a gun at Escober. Alorte and his companion went up the Vising Electrical Supply. Escober
does not know the real name of Alorte; all the (sic) knows is Roberto Alorte. Escober does not
know the man who was left near the gate but he knows him by face and he was then in the
courtroom and he pointed to the person who answered by the name of Macario Punzalan, Jr., his
co- accused. Escober did not see what Punzalan was doing because he, Escober, was made to
climb the vehicle (pick-up). At this point, his gun was in the locker. He was not able to get that gun
when these four men entered because a gun was already pointed at him. Alorte took Escober's gun
from the locker because he was formerly a security guard at Vising Electrical Supply for 3 or 4
months. He does not know why Alorte did not continue his work there. After 5 minutes, after the two
men went up the office, they came down and talked to the man guarding Escober and Alorte fired
at him. He was not hit for he was able to avoid it and after that, the four men suddenly left. Escober
went down from the pickup and he heard Vicente Chua calling him and he responded. Chua asked
him to call Mrs. Chua at the house because, according to Chua, their children were stabbed. So
Escober went to the house and called Mrs. Chua. When Mr. Chua called him, Alorte and his
companions were no longer at the place for, after firing, they hurriedly left. Escober was able to call
Mrs. Chua and she and he, together, returned to Vising Electrical Supply and upon reaching the
place, Mr. Chua was shouting and he could not understand him because he was speaking in
Chinese. Mrs. Chua went back and got the car, parked it and returned to the office. When Mr. Chua
went out of the office, he was bringing his son and placed him at the parked car of the office. When
Chua returned to the office (after he called Escober) and came back out, Escober saw him with his
son and placed him at the balcony. The two children who were stabbed were carried in two cars
because there were only two cars at the driveway. Escober opened the gate. He does not know to
what hospital they went. After that, he called Jeffrey one of the sons of the Chuas, so he could help
him (Escober) call the police. Jeffrey was not able to call the police because when Jeffrey gave him
a directory and asked him (Escober) to look for the telephone number of the police but he told
Jeffrey to look it up himself because his eyes were blurred. After 15 minutes, the police came and
after that, the owner of the security agency arrived. Other policemen not in uniform also arrived.
They interviewed Escober and forced him to go with them to the police precinct. He refused
because the owner of the agency had not then arrived. When owner arrived, he called another
security guard to guard the Vising Electrical Supply. The police and the owner of the security
brought Escober to the precinct to get his statement and there the police was forcing him to adroit
he was the one who robbed and killed the children of the Chuas and he told them do not know
everything. The testimony of Mrs. Chua that she saw him together with Abuyen Alorte inside the
garage is not true because he was the one who told Mrs. Chua that their children were being
stabbed. When Alorte and his companions left, Mrs. Chua was finding (sic) to call him (Escober).
 When he was brought to the precinct, the investigator was typing something. Escober could
recall/remember only his signature. He Identified his statement, Exhibit I for the defense, Exh. F for
the prosecution. He narrated it there exactly. The signature there are his. He knows the police who
investigated him but he does not know the person. Escober was at the precinct when he signed his
statement. He was there up (sic) October 3, 1983, the date he testified in court (tsn, 2-13). 3

Accused-appellant Macario Punzalan, Jr. likewise testified in his defense. The gist of his testimony is found in his
Brief as follows:

PUNZALAN testified on his own behalf (his direct testimony is found in TSN, pp. 2-35, Nov. 9,
1983). PUNZALAN is a fruit vendor at "the market of Monumento." In the afternoon of 3 December
1982, according to PUNZALAN, he accepted the invitation of fugitive ABUYEN/ALORTE for a drink,
in a place near Abonce Beer House; ABUYEN/ALORTE was with two companions whom he
introduced all his relatives; after several drinks, he was requested to join the group to proceed to
another place for which reason they boarded a tricycle; and the group stopped 'at a place with a
high gate' because ABUYEN/ ALORTE wanted 'to drop by someone' (TSN, pp. 2-11, November 9,
1983). ABUYEN/ALORTE knocked at the little door and the security guard (PUNZALAN Identified
accused Escober as the security guard) opened the door and they greeted each other;
ABUYEN/ALORTE then instructed PUNZALAN "to wait for him outside;" and thereafter
ABUYEN/ALORTE and his two companions entered the compound (TSN, pp. 11-14, Nov. 9, 1983).

PUNZALAN further testified that he waited for half an hour for the group; that while waiting he
heard the mourn (sic) of a child that he was then about to enter the premises but he met
ABUYEN/ALORTE and his two companions and saw them with blood stains in their arms;' that
ABUYEN/ALORTE and his companions started running and he followed them; that in response to
his query AB ABUYEN/ALORTE stated that he stabbed the two [2] children'; and that they boarded
a taxi and he was brought back to our place where we are selling apples' (TSN pp. 14- 18, Nov. 9,
1983)

PUNZALAN was apprehended early dawn of 10 December 1982 at the Monuments market. No
lawyer assisted him during his custodial investigation despite the fact that he informed the police
officers that he has a lawyer by the name of Atty. Valdez nor was he informed of his constitutional
rights to remain silent and to counsel. Nevertheless, the police investigator proceeded to
interrogate him. He disclosed that he was invited by Amadeo Abuyen for a drink; and that they
drank beer 'in a place near Abonce Beer House. "PUNZALAN asserted that, when Exh. M was
presented for his signature he refused to sign (Exh. "M") because 'many statements thereon are
not correct that he nevertheless signed Exh. "M" because he was already tired and was forced to
sign it after they hurt me by boxing me, subjected me to water therapy and he could not endure the
pain, when they gave (him) the electric shock treatment;" and that the portions of Exh. "M" which
are incorrect are those Identified as Exhs.'11-A and 11-B (TSN, pp. 19-32, Nov. 9, 1983 ). 4

On January 10, 1984, the decision under review was promulgated. On February 8, 1984, despite his manifestation in
open court immediately after the promulgation of the decision that he was appealing the same to this Court, Atty.
Mariano filed a motion for reconsideration. This was opposed by the prosecution.

Pending resolution of the motion. Atty. A.E. Dacanay entered his appearance on August 7, 1984 as counsel for
accused Escober, and on August 20, 1984, he filed another motion for reconsideration for the said accused, which
was likewise opposed by the prosecution. After an exchange of pleadings between Atty. Dacanay and the
prosecution, the trial court issued an Order dated November 21, 1984 denying the motions. Hence. the petition in
G.R. No. 69658 and the automatic review.

In G.R. No. 69658, accused-appellant Juan Escober contends that:

RESPONDENT JUDGE GRAVELY ERRED IN RENDERING HIS TWO-PAGE DECISION

IMPOSING DEATH SENTENCE IN CULPABLE VIOLATION OF THE CONSTITUTION AND
CONSEQUENTLY IT MUST BE REVERSED AND SET ASIDE, ACQUITTING PETITIONER ...;

RESPONDENT JUDGE ERRED IN FINDING AND CONCLUDING THAT PETITIONER,

TOGETHER WITH HIS CO-ACCUSED PUNZALAN AND THREE OTHERS ACTED "AS
 PRINCIPALS BY INDISPENSABLE COOPERATION" CONSIDERING THESE
CIRCUMSTANCES: FIRST: (THE) UNLIKELY GARBAGE THROWING REASON OF ACCUSED
ESCOBER (PETITIONER) IN OPENING THE GATE OF THE COMPOUND IN QUESTION,
AGAINST THE TESTIMONY OF HIS CO-ACCUSED MACARIO PUNZALAN, JR. OF KNOCKING
ON THEIR PART; SECOND THE RITUAL IN AVOIDANCE OF SUSPICION OF FIRING A GUN
JUST BEFORE THE EXIT OF THE CONSPIRATORS AND VOLUNTEERING THAT HE WAS NOT
HIT': AND THIRD: '(T)HE VERSION OF JUAN ESCOBER 'PETITIONER) REGARDING HIS
ACTUATION DURING THE HALF-HOUR ROBBERY-HOMICIDE WAS REPLETE WITH
CONTRADICTIONS.

RESPONDENT JUDGE ERRED FURTHERMORE IN CONVICTING PETITIONER TO DEATH AS

SUCH PRINCIPAL UNDER THE DECISIONAL LAW ON CRIMINAL CONSPIRACY.

RESPONDENT JUDGE ERRED IN DENYING PETITIONER'S MOTION FOR

RECONSIDERATION ... OF SAID DECISION OF JANUARY 10, 1984. 5

These assigned errors were reiterated in the Brief for Accused-Appellant Juan Escober filed in G.R. No. 69564.

On his part, Macario Punzalan, Jr. seeks reversal of his conviction on the following grounds:

PUNZALAN SHOULD BE ACQUITTED; OR AT THE VERY LEAST, HIS CONVICTION SHOULD

BE NULLIFIED ON THE GROUND THAT PUNZALAN WAS DENIED HIS RIGHTS TO RE MAIN
SILENT AND TO COUNSEL IN ALL OF THE THREE OF THIS CASE: CUSTODIAL
INVESTIGATION PRELIMINARY IN- INVESTIGATION AND TRIAL ON THE MERITS;

THE LOWER COURT ERRED IN RULING THAT, AS A MAT TER OF LAW, PUNZALAN IS
ACCOUNTABLE FOR THE CRIME OF ROBBERY;

THE LOWER COURT ERRED IN RULING THAT THE PRINCI PAL MOTIVE FOR THE CRIME
WAS ROBBERY;

THE LOWER COURT ERRED IN RULING THAT ROBBERY WAS IN FACT COMMITTED;

THE LOWER COURT ERRED IN NOT ACQUITTING PUNZALAN ON THE GROUND OF

REASONABLE DOUBT;

THERE BEING NO DIRECT EVIDENCE TO SHOW HOW THE CRIME WAS COMMITTED, THE
LOWER COURT ERRED, AS A MATTER OF LAW, IN RULING THAT THE COMMISSION OF
THE CRIME WAS ATTENDED WITH THE AGGRAVATING CIRCUMSTANCES OF CRUELTY,
NIGHTTIME, TAKING ADVANTAGE OF SUPERIOR STRENGTH, TREACHERY AND IN BAND. 6

We shall deal first with Escober's assigned errors, particularly the objection interposed to the form and substance of
the decision under review. Accused-appellant Escober asserts that said decision is null and void for it does not
conform with the requirement of Section 9, Article X of the 1973 Constitution and that it was rendered even before all
the stenographic notes of the proceedings had been transcribed.

We find merit in this contention. The decision of January 10, 1984 consists of 1-1/2 pages, typed single-space, with a
number of handwritten notations and insertions. It reads:

The AMENDED INFORMATION charged the above-named accused of Robbery with

Homicide defined in Article 294 of the Revised Penal Code. It alleged, among others, that on or
about December 3, 1982, in Quezon City, said accused conspiring, confederating and mutually
helping one another, with intent to gain and by means of violence and intimidation again persons
robbed Vicente Chua y Ching by entering the premises of No. 24 Joy St. Grace Village, Quezon
City and taking therein P5,000.00 and (sic) by reason or on the occasion of said robbery employed
personal violence upon minors Irvin Chua y Saw and Tiffany Chua y Saw, stabbing them and
inflicting thereby multiple serious mortal wounds directly causing their immediate deaths, to the
damage of their heirs.
 Prosecution evidence consisted of the testimonies of Vicente Chua, Mrs. Lina Chua, Domingo
Rocero, Oscar Francisco, Amado V. Ramos, Teodoro Ibuan Abelardo V. Lucero and Dr. Josefina
Qua, and Exhibits "A" to "Z" with sub-exhibits; while Defense evidence consisted of the testimonies
of the two named accused above and some exhibits, contained in Pages 1 to 454 of the Records,
Volume 2, Vol. 1 and 3.

In view of the foregoing evidence, and considering the memoranda of both parties, the arguments
and authorities cited therein, this Court finds that the material allegations of the above information
are facts, and that accused Juan Escober y Geralde and Macario Punzalan, Jr. y Guevarra are
guilty of the charges of Robbery with Double Homicide, as principals by indispensable cooperation
as defined in article 17, par. 3, with no mitigating circumstances, and attended by aggravating
circumstances of cruelty, nighttime to insure the commission of the crime, taking advantage of
number and superior strength, treachery, in band, among others, and that the defenses and
excuses of the accused are unnatural, incredible, contradictory and uncorroborated. The
circumstances pointing to the (sic) this fact, among others, are the following: The unlikely garbage
throwing reason of accused Juan Escober in opening the gate of the compound in question,
against the testimony of his co-accused Macario Punzalan, Jr. of knocking on their part; the ritual in
avoidance of suspicion of firing a gun just before the exit of the co-conspirators of Juan Escober,
and volunteering the information that he was not hit. The version of Juan Escober regarding his
actuation during the half-hour robbery homicide was replete with contradictions. Macario Punzalan
admitted being fetched by, going with and talking to, immediately prior to taking a tricycle to the
said compound, and later acting as lookout for, his co-conspirators. The Court finds further that the
group took some drinks, not to get drunk admittedly, and therefore to strengthen their resolve better
to commit the crime planned.

WHEREFORE, this Court declares Juan Escober y Geralde and Macario Punzalan, Jr. GUILTY
beyond reasonable doubt of the crime charged in the amended information, this Court holding
firmly that when a hired security guard opens the compound under his protection to four men who
turn out to be robbers and murderers or when a former security guard accompanies and meets with
said malefactors immediately before the commission of the offense and stands guard at the gate
and flees with said malefactors then the burden of proof is shifted to him to exculpate and excuse
himself by clear, satisfactory and convincing evidence, which the named accused failed to do, but
succeeded only in insulting this Forum of Truth with their rediculous (sic) justifications for the brutal
and merciless killing of innocent and helpless children on the occasion of that robbery in question,
of being held-up at gunpoint, of coincidentally being in the act of throwing garbage and being fired
at but not getting hit but not knowing so many vital details a truthful witness would certainly not
forget, among others, thus that this court after a total appreciation of all the evidence on record is
convinced that there being apple (sic) circumstances present that could only possibly point to the
guilt of said accused for the most heinous (sic) crime that deserves the highest penalty, Hereby
sentences the said accused Juan Escober y Geralde and Macario Punzalan, Jr. to the legal
punishment provided by Article 294, Paragraph 1 of the Revised Penal Code of the Philippines,
which is DEATH and orders the said accused further to pay the heirs of their victims compensatory
damages of P12,000.00 each, jointly and severally, and moral damages of P200,000.00 to the said
heirs, jointly and severally.

SO ORDERED. QUEZON CITY, January 10, 1984. 7

Every decision of a court of record shall clearly and distinctly state the facts and the law on which it
is based ...

The above-quoted decision falls short of this standard. The inadequacy stems primarily from the respondent judge's
tendency to generalize and to form conclusions without detailing the facts from which such conclusions are deduced.
Thus, he concluded that the material allegations of the Amended Information were the facts without specifying which
of the testimonies or exhibits supported this conclusion. He rejected the testimony of accused-appellant Escober
because it was allegedly replete with contradictions without pointing out what these contradictions consist of or what
"vital details" Escober should have recalled as a credible witness. He also found the crime to have been attended by
the aggravating circumstances of cruelty, nighttime, superior strength, treachery, in band, "among others," but did not
particularly state the factual bases for such findings.
As enunciated by this Court in the case of Hernandez v. Colayco, 64 SCRA 480, reiterating Montelibano v. Director of
Lands, 21 Phil. 449; Alindogan v. Insular Government 15 Phil. 168; City of Manila v. Insular Government, 9 Phil.
71; Enriquez v. Enriquez, 3 Phil. 746; Braga v. Millora, 3 Phil. 458:

Without the concrete relation or statement in the judgment of the facts alleged and proved at the
trial, it is not possible to pass upon and determine the issue raised in litigation, inasmuch as when
the facts held to be proved are not set forth in a judicial controversy, it is impossible to administer
justice, to apply the law to the points argued, or to uphold the rights of the litigant who has the law
on his side.

It is not sufficient that the court or trial judge take into account the facts brought out in an action
suit, the circumstances of each question raised, and the nature and condition of the proofs
furnished by the parties. He must also set out in his decision the facts alleged by the contending
parties which he finds to have been proven. The conclusions deduced therefrom and the opinion he
has formed on the issues raised; then only can be intelligently set forth the legal grounds and
considerations proper in his opinion for the due determination of the case.

As it is written, the decision renders a review thereof extremely difficult. Without a particularization of the evidence,
testimonial or documentary, upon which the findings of facts are based, it is practically impossible for the appellate
court to determine whether or not such findings were sufficiently and logically supported by the evidence relied upon
by the trial court.

Were it not for its dire consequences, we would have appreciated the efforts shown by respondent-judge to
administer justice in this case in the most speedy and expeditious manner. He obviously took to heart our admonition
that judges do not have to wait for the transcription of stenographic notes before rendering judgments but can rely on
the notes of the proceedings personally taken by them. For this is what respondent judge did. The records show that
he took copious notes of the testimonies of the witnesses on which he apparently based this decision, as the
transcript of the stenographic notes were not yet complete at the time of the rendition of the judgment. In fact, the
review of the case suffered some delay due to the failure of stenographer Eduardo Bober to submit to this Court the
transcript of stenographic notes of some hearings.

Speed in the administration of justice, however, is not the sole concern of courts and judges. More than this is the
essentiality of justice and fairness which is the primordial objective of the courts. Respondent judge lamentably
disregarded the latter for the former.

The decision of January 10, 1987 calls to mind the decision rendered by another trial court in the case of People v.
Banayo, 129 SCRA 725, regarding which We said:

At the onset, this Court takes a rather dim view of the apparently indifferent attitude displayed by
the trial court towards a murder case it has tried as shown by the rendition of a decision, the body
of which contains only 63 lines spread out over less than three typewritten pages, double-spaced
and wide-margined. While brevity should characterize a court's decision and length is not
necessarily determinative of its quality, the lower court in deciding this murder case nonetheless
should have outlined in greater and more satisfactory detail the evidence presented by both
prosecution and the defense, the facts as found by the trial judge based on the evidence on record
and the jurisprudence and the authorities supporting the court's decision.

This trial judge failed to do. There is not one single citation of authority in the decision. The issues
raised by the appellant include allegations of concocted testimony, the nature of a dying
declaration, premeditation, conspiracy, treachery and superior strength. The issues raised are quite
serious and they deserved better treatment. [Emphasis supplied].

With the finding that the decision of January 10, 1984 does not conform to the requirements of Section 9, Article X of
the 1973 Constitution, the case should have been remanded to the court a quo for the rendition of a new judgment.
However, since the records of the case, including all evidence necessary for a determination of the innocence or guilt
of the accused- appellants are now before Us, We deem it wise to render judgment in this case in order to accord the
accused-appellants their right to a speedy disposition of their cases. 8
The prosecution's theory is that Juan Escober is a principal by indispensable cooperation in the crime of robbery with
homicide. In support thereof, it tried to prove that Escober's actuations during the incident in question were done with
the knowledge of and pursuant to said nefahous plan. These acts consist of- [1] his alleged act of opening the gate of
the compound to his co-conspirators; [2] his having been seen by Mrs. Lina Chua behind Alorte/Abuyen, the alleged
mastermined, after the gunshot; and [3] his having volunteered the information to Mrs. Chua that he was not hit. The
prosecution further attempted to show that the gun-firing was a mere ritual in avoidance of suspicion and that
Escober's version of the incident is too replete with contradictions to merit belief.

After a thorough review of the evidence, We find that the guilt of Juan Escober has not been proved beyond
reasonable doubt.

The act of opening a gate upon hearing a knock is by itself an innocent gesture. One who imputes an evil motive or
purpose thereto must prove his allegations convincingly. In the case at bar, even if the version of Macario Punzalan,
Jr. that Escober opened the gate at the knock of the alleged mastermind Amadeo Abuyen/Roberto Alorte were to be
believed, the same would not constitute sufficient and convincing proof that Escober had knowledge of the nefarious
plan. The worse that could be attributed to him is lack of better judgment or laxity in the performance of his duties as
a security guard in having failed to exercise the minimum precaution dictated by his occupation to exclude from the
premises being guarded persons who have not demonstrated any legitimate reason for getting in. For it must be
remembered that having been co-employees, Escober knew Abuyen/Alorte. It was therefore not surprising that he
should open the gate for him. In fact, even Domingo Rocero, the security guard who replaced Abuyen/Alorte and who
was not as familiar with Abuyen/Alorte admitted on his Sworn Statement having allowed Abuyen/Alorte into the
compound thus:

20.T Mula ng manungkulan ka sa Bee Seng Electrical Supply, ilang beses mo ng

nakita si Roberto Alorte sa malapit sa iyong pinagguaguardiayahan?

S Dalawang beses ko na po siyang nakita sa lugar na iyon, una noong buwan ng

Septyembre at pangalawa noong buwan November 1982.

21.T Ano ang dahilan at nakikita mo siya sa lugar na iyan?

S Una binisita niya ako at pangalawa mayroon siyang kasamang babae at hindi
ko na siya pinapasok sa loob ng Bee Seng Electrical Supply. 9

The facts of the case likewise do not support the prosecution's theory that the gun-firing incident was a mere ritual in
avoidance of suspicion. We share the keen observation of counsel for Escober that "... it is not a common experience
that a person allows himself to be shot by a gun. He would be the stupidest person on earth if he allows that ... to
avoid suspicion that he was in cahoots [sic] with malefactors The least or perhaps the safest way for that evil purpose
is to allow himself to be rendered ineffective, i.e., by tieing [sic] him up, mauling him or wounding him so he would live
if he were a conspirator. To allow him to be shot by a gun is too risky a ritual for he might get killed. 10

Besides, the robbery and homicide were perpetrated within a span of 5-10 minutes, not half an hour as found by the
trial court, a time too short to enable Abuyen/Alorte and Escober to contrive such a ritual or scenario, or if it were a
pre-conceived plan, for Abuyen/Aorte to have remembered it considering the unexpected apprearance of Lina Chua
at the scene and the need for immediate escape.

Even assuming arguendo that the gun was fired in the air and not at Escober, the same could have been done to
scare Lina Chua away from the scene of the crime rather than to divert suspicion from Escober.

That the gun-firing was not a ritual and that Escober was not a part of the criminal plan are further bolstered by the
statement made by Macario Punzalan during the preliminary investigation, and extra-judicial statement of the alleged
mastermind Abuyen /Alorte dated April 16, 1986, submitted by the prosecution as Exhibit B during the separate trial
of said Abuyen/Alorte. The pertinent portion of Macario Punzalan's statement reads:

FISCAL: Ito ba si Abuyen at saka si Juan Escober at Abuyen ay matagal ng

magkakilala?

PUNZALAN: Hindi ko po alam sir, dahil po sa guardiya po dati yung Alorte.

 FISCAL: Ito ba ang kasalukuyang guardia [referring to Escober]

PUNZALAN: Oho, siya po ang naka guardia noon. [duty]

FISCAL: Noong pagkatapos ng pag-uusap nila ano pa ang ginawa? Kung

mayroon pa?

PUNZALAN: Hindi ko na po nakikita sir.

FISCAL: Ito ng umakyat kayo sa bahay ay sumama ba?

PUNZALAN: Hindi ho, nasa ibaba po rin ako sir.

FISCAL: Ito [referring to Escober nakita mong umakyat?

PUNZALAN: Hind ho, kung baga sa ano ay pinapapatay ho sa akin ni Abuyen ni

Alorte.

FISCAL: Bakit?

PUNZALAN: Ewan ko po, hindi ko po alam ang dahilan.

FISCAL: Pero hindi mo naman pinatay.

PUNZALAN: Hindi po.

FISCAL: Bakit?

PUNZALAN: Ewan ko po, dahil hindi ko po alam nga ang dahilan, sir, kasi po ay
gusto kong mahuli yung Abuyen, sapagkat iyon pong talaga ang utak eh. 11

On the other hand, Amadeo Abuyen's extrajudicial statement reads in part:

... Pagkatapos ay sumakay kami sa tricycle at nakarating kami sa bahay ni Mr. Chua ng bandana
alas 8:00 ng gabi ng petsa 3 ng Desiyembre. Pagdating namin doon ay kumatok ako at binuksan
naman ako ng guwardia dahil kakilala ko. Kinumusta ko muna siya kong paano ang buhay-buhay
niya. Habang nagkakamustahan kami ay bigla ko siyang tinutukan ng aking baril sinabi ko sa
kanya na pasensiya na siya. Pinakuha ko ngayon kay DON-DON iyong baril na .22 kalibre sa
lalagyan nito. Pagkatapos ay sabay pumasok si DON-DON at si REY sa opisina ni Mr. Chua. Ako
naman ay pumuesto sa labas ng opisina at sa gate ay si KUMANG. Nang nakapuesto na ako sa
pintuan ay pumalag itong guwardiya na si Escober na hindi an pala ginapos nitong si KUMANG.
Nang makita ko ay binaril ko siya pero hindi siya tinamaan. Noong matapos kong barilin si
ESCOBER ay niyaya ko na sila at tumakbo na kami ... 12

These exculpatory statements, although emanating from alleged co- conspirators and therefore may ordinarily be
considered "polluted," deserve credence. Punzalan's statement, it must be observed, is not even responsive to the
question being asked. The spontaneous and candid manner by which it was given lends credence to his statement,
that Abuyen/Alorte wanted Escober killed. This statement, together with the statement of Abuyen/ Alorte that he
himself fired at E scober although the latter was not hit, unwittingly corroborates Escober's version that the gun was
aimed at him. That Escober was not thereby hit should not be taken as conclusive proof that the gun-firing was a
mere ritual because the same could be easily occasioned by a poor aim and/ or the hurried manner of its execution.

On the other hand, We see no reason why Abuyen/Alorte should absolve Escober of any complicity in the crime if this
were not the truth. The usual practice is for a conspirator to exculpate himself and pass on the blame to a co-
conspirator, particularly in a case such as this where the crime charged is indeed very grave and serious. However
undesirable a person may seem, there may be left in him a sense of justice and fairness. Without passing judgment
on Abuyen/Alorte, We believe that it was this sense of justice and fairness that moved him to disclose the truth in his
extrajudicial confession.

Escober's unilateral offer of the information that he was not hit does not prove either that he was a co-conspirator. It
was but natural that he would want to inform and assure his superior who is presumed to be concerned with his
safety and well-being. The motivation attached to said act by the prosecution is therefore too conjectural and far-
fetched to pass the test of logic and reason.

The only evidence of the prosecution which may lead to a conclusion of Escober's complicity is the testimony of Mrs.
Lina Chua that upon hearing a shot, she looked at the garage where the shot sounded to have come from and saw
Abuyen/Alorte walking towards the gate with Escober about a meter behind.

We have reasons to doubt the veracity and/or accuracy of this statement. We observe that Mrs. Lina Chua was the
last among the prosecution witnesses to give her statement to the police. She gave her statement on December 8,
1983 when none of the accused had been apprehended. So, soon after the violent incident her appreciation of what
she saw may have been faulty when she attributed the blame on Escober whose lack of better judgment and laxity in
the performance of his job resulted in the tragic event.

Taken in conjunction with the extra-judicial confession of Abuyen/Alorte quoted above, Mrs. Chua's narration of the
situation would suffer from inaccuracy, aside from being susceptible to other interpretations. Abuyen/Alorte declared
that immediately after the shooting, he called his companions and ran away from the scene of the crime. Punzalan's
testimony was of the same tenor, i.e., that Abuyen/Alorte and his companions started running and he [Punzalan]
followed them. This was precisely the moment when the malefactors were fleeing from the scene of the crime, and at
which point Escober could have felt safe enough to emerge from the pick-up where he was held captive. Thus, Mrs.
Chua claims to have seen Escober about a meter behind Abuyen/ Alorte, who was not walking, but running away
from the scene of the crime.

Indeed, it was not unlikely for Mrs. Chua to misinterpret the situation she described having seen. She was then in an
agitated condition on seeing the pedestrian gate of the compound open, which was Escober's duty to keep closed.
Moreover, from the relative positions of Mrs. Chua, Abuyen/Alorte and Escober, the line of vision of Mrs. Chua was
such that it would be difficult for her to determine for certain the distance between Abuyen/Alorte and Escober and
whether the latter was merely walking behind the former or in fact chasing him.

Additionally, in her testimony on August 1, 1986 in the separate trial of Abuyen/Alorte, she declared that 'they
[referring to Abuyen/Alorte and Escober] were walking towards the gate; they were nagmamadali [in a hurry]." 13This
description given by Lina Chua does not jibe with the impression gathered from her previous statement of seeing
Escober walking behind Abuyen/Alorte. The element of speed injected into the 'walking" by the descriptive term
'nagmamadali" corroborates Abuyen/ Alorte's declaration that after firing the gun, he ran away from the scene of the
crime, and tills can be interpreted to mean that Escober was indeed chasing Abuyen/Alorte.

The fact that the accused was at the scene of the crime at the time of its commission is not, by
itself, sufficient to establish his criminal liability. To hold the accused guilty as co-principal in the
crime charged, the existence of conspiracy between the accused and the actual killers, must be
shown, and the same degree of proof required for establishing the crime is required to support a
finding of the presence of the conspiracy, i.e., it must be shown to exist as clearly and convincingly
as the commission of the crime itself. 14

The prosecution evidence is glaringly wanting in this regard. It failed to prove beyond reasonable doubt that [1]
Escober had knowledge of the criminal design and [2] that his acts during the commission of the crime, such as the
opening of the gate and having been behind Abuyen after the gunshot, were performed pursuant to said nefarious
plot. This being the case, the prosecution's reliance on the alleged inconsistencies in Escober's testimony regarding
his actuations during the incident at bar can not improve its case. To convict on this basis is repugnant to the
constitutional right of the accused to be presumed innocent until the contrary is proved 15 and its corollary rule that the
prosecution must rely on the strength of its own evidence and not on the weakness of the defense. 16

Indeed, the accidents of Escober being on duty during the commission of the crime and his having opened the gate to
persons who turned out to be robbers and killers make him an easy suspect. A less discerning mind could have been
blinded by these suspicions and compassion for the two hapless victims. But convictions can never rest on mere
suspicions, however, grave and serious.
We now turn to Macario Punzalan's case. He contends having been denied his rights to remain silent and to counsel
during the custodial investigation, the preliminary investigation and the trial on the merits.

Punzalan's extra-judicial statement 17 is prefaced by the for lowing:

PAGPAPAUNAWA NG KARAPATAN SA ILALIM NG SALIGANG BATAS NG PILIPINAS.

Ikaw ngayon ay nasa ilalim ng pagtatanong sa himpilang ito ng pulisya hinggil sa isang usaping
kinasasangkutan mo sa salang PAGNANAKAW NA MAY KASAMANG PAGPATAY. Bago ka
tanungin ng anoman, ipinauunawa ko muna sa iyo at pinagpapaalalahanan ka ng iyong mga
karapatan sa ilalim ng Saligang Batas ng Pilipinas, tulad ng mga sumusunod:

1. Ikaw ay may karapatang manatiling tahimik at huwag magsalita o magbigay ng salaysay kung
hindi mo nais.

2. Ikaw ay may karapatang magkaroon ng paglilingkod ng isang abogado na iyong mapipili. Kung
hindi mo kayang kumuha ng abogado, at nais mong magkaroon ng paglilingkod nito maglalaan ng
isa para sa iyo ang hukuman na hindi mo na kailangang bayaran ang paglilingkod nito.

3. Ikaw ay may karapatan na huwag magbigay ng anomang pahayag na maaaring gamiting

katibayan laban sa iyo.

4. Hindi ka maaaring pilitin,o gamitan ng anomang uring karahasan o pamilit para ikaw ay
magbigay ng salaysay.

Tanong — Pagkatapos na malaman mo, maipaunawa sa iyo at

mapagpaalalahanan ka ng iyong mga karapatan sa ilalim ng Saligang Batas ng
Pilipinas, nahahanda ka bang magbigay ng isang malaya at kusang loob ng
salaysay?

Sagot — Opo.

Tanong — Nahahanda kang magbigay ng salaysay kahit na walang abogado na

sumusubaybay sa iyo habang ikaw ay sinisiyasat?

Sagot— Opo.

Tanog— Lubos mo bang naunawaan na ikaw ay hindi maaaring pilitin or gamitan

ng anomang uri ng karahasan upang maging saksi laban sa iyong sarili?

Sagot— Opo.

Tanong— Sa kabila ng lahat ng mga karapatang ipinaunawa sa iyo magbibigay

ka pa rin ba ng salaysay?

Sagot— Opo.

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Noteworthy is the fact that except for an additional question in Escober's extra-judicial statement, 18 the latter carried
the same quoted prefatory statement. This, to our mind, indicates the lack of zeal and initiative on the part of the
investigating officers to fully and truly inform Punzalan of his rights to remain silent and to counsel during the
custodial investigation. The Identical manner by which the police sought to inform Escober and Punzalan of their
constitutional rights shows a blatant disregard for individual comprehensive ability arising from differences in
intelligence level, educational background and personal experiences. No effort was exerted to see to it that Punzalan
really understood what was being told, considering his low educational attainment of Grade 2 Elementary level. The
so-called "informing" done by the police in the case at bar was nothing more than a superficial and mechanical act,
performed not so much to attain the objectives of the fundamental law as to give a semblance of compliance thereto.
Besides, the phraseology used by the police respecting the appointment of counsel de oficio for Punzalan was
misleading. It gives the impression that the services of a counsel de oficio can be availed of by Punzalan only during
the court proceedings, not during the custodial investigation.

Not having been fully and truly informed of his right to counsel, the waiver appearing in Punzalan's extrajudicial
statement cannot be considered intelligently made. For this reason, aside from the fact that it was done without the
assistance of counsel, said waiver is not valid. 19 Needless to say, the extrajudicial confession is inadmissible in
evidence. 20

With respect to Punzalan not having been represented by counsel during the preliminary investigation, suffice it to
say that such irregularity which amounts to an absence of preliminary investigation, should have been raised before
the trial court, Philippine jurisprudence is uniform and consistent in ruling that:

The question of absence of a proper preliminary investigation is also better inquired into by the
Court below. When so raised, this Court, speaking through Mr. Justice Claudio Teehankee, has
held that the trial Court is called upon 'not to dismiss the information but hold the case in abeyance
and conduct its own investigation or require the fiscal to hold a reinvestigation. As stressed in
People vs. Casiano, I SCRA 478 (1 961), this is the proper procedure since the 'absence of such
investigation did not impair the validity of the Information or otherwise render it defective. Much less
did it affect the jurisdiction of the Court of First Instance. The right to a preliminary investigation,
being waivable does not argue against the validity of the proceedings, the most that could have
been done being to remand the case in order that such investigation could be conducted.

... the proper forum before which absence of preliminary investigation should be ventilated is the
Court of First Instance, not this Court. Reason is not wanting for this view. Absence of preliminary
investigation does not go to the jurisdiction of the court but merely to the regularity of the
proceedings. It could even be waived. Indeed, it is frequently waived. These are matters to be
inquired into by the trial courts, not an appellate court. 21

While it may be conceded that it would have been more judicious for the trial court to appoint a counsel de oficio for
Punzalan other than the counsel de parte of his co-accused Escober, such failure did not constitute prejudicial error
to warrant nullification of the proceedings taken against Punzalan. There is no evidence that Atty. Mariano was
biased in favor of Escober to the prejudice of Punzalan. The records show that Atty. Mariano defended both accused
with equal zeal and vigor and that Punzalan was able to present his defense well. In fact, it was Punzalan's version of
having knocked that the trial court believed. In the final analysis, the only prejudice Punzalan might have suffered was
the failure of Atty. Mariano to cross-examine Escober on the latter's testimony regarding Punzalan's presence at the
scene of the crime. 22 Escober's testimony, however, was merely corroborative of the testimonies of Lina Chua and
Domingo Rocero, witnesses for the prosecution who were cross-examined by Atty. Mariano. 23

Prosecution witnesses Vicente Chua and Lina Chua had established the fact of robbery and we are convinced
beyond reasonable doubt that Punzalan knew of such plan. It is incredible that his three companions would fetch him
on the pretext of drinking beer and just bring him along to the scene of crime, thereby risking another eyewitness to
the perpetration thereof. Punzalan's flight from the scene of the crime with his companions and his failure, if he were
truly innocent, to report to the police what he knew about the crime after reading it in the newspapers further
demonstrate his knowledge of the plan.

While it has been established that Punzalan's participation in the crime was to act as a look-out, and as such, he did
not participate in the killing of the two helpless victims, he cannot evade responsibility therefor. Well-established is the
rule in this jurisdiction that whenever a homicide has been committed as a consequence of or on the occasion of a
robbery, all those who took part as principals in the commission of the robbery are also guilty as principals in the
special complex crime of robbery with homicide although they did not actually take part in the homicide unless it
clearly appeared that they endeavored to prevent the homicide. 24

WHEREFORE, the decision dated January 10, 1984 in Criminal Case No. Q-22896 of the Regional Trial Court of
Quezon City is hereby SET ASIDE. Accused-appellant Juan Escober y Geralde is hereby ACQUITTED of the crime
of Robbery with Homicide and his immediate release from confinement is ordered, unless detained for some other
crimes. Accused- appellant Macario Punzalan, Jr. y Guevarra is hereby found guilty beyond reasonable doubt as
principal in the complex crime of Robbery with Homicide and is accordingly sentenced to suffer the penalty
of reclusion perpetua and to indemnify the heirs of the victims in the amount of P60,000,00,

SO ORDERED.

Yap, Narvasa, Cruz, Paras, Gancayco, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, C.J., concurring:

I concur in toto with the judgment of the Court (a) holding that the 1-1/2 page, single-spaced, decision of the trial court
presided by Judge Oscar Leviste, sentencing the accused at bar to the supreme penalty of death without
specification of the evidence, testimonial and documentary, upon which his conclusions finding them guilty had been
based falls short of the constitutional requirement that every decision of a court of justice clearly and distinctly state
the facts and the law on which it is based; (b) acquitting the accused Juan Escober of the crime of robbery with
homicide on the ground that his guilt has not been proved beyond reasonable doubt; and (c ) finding the other
accused Macario Punzalan, Jr. guilty beyond reasonable doubt as principal in the complex crime of robbery with
homicide and imposing upon him the penalty of reclusion perpetua in view of the abolition of the death penalty under
the 1987 Constitution.

a) This brief concurrence is just to restate that the whole Court en banc is unanimous as to the utter failure of the trial
judge's 1-1/2 page decision to conform to the mandatory constitutional requirement that a decision must clearly state
the facts and the law on which it is based. Normally, in such cases, the case would have to be remanded to the court
a quo for the rendition of a new judgment that does conform to the constitutional mandate but the Court, since all the
briefs have been filed, opted to review the record and the evidence and to render judgment accordingly in order to
avoid further delay in the disposition of the case on the merits;
b) The whole Court en banc is likewise unanimous in its judgment finding the accused Macario Punzalan, Jr. guilty
beyond reasonable doubt of the crime of robbery with homicide, even as it reaffirms the settled doctrine in Criminal
Law that whenever a homicide has been committed as a consequence of or on the occasion of the robbery, all those
who took part as conspirators in the commission of the crime of robbery are also guilty as principals of the special
complex crime of robbery with homicide although they did not actually take part in the homicide, unless it clearly
appears that they endeavored to prevent the homicide under the basic principle that once a conspiracy or community
of criminal design is shown, then the actual mode of participation in a crime of any of the accused, whether he be a
lookout posted outside the scene of the robbery, is of no moment, since the act of one conspirator is the act of all.
This has been the consistent doctrine of the Court applied since the early 1907 case of U.S. v. Macalalag and most
recently affirmed in the 1987 case of People vs. Pecato as traced by Mr. Justice Feliciano in Ms scholarly separate
opinion; and

c) The ten-to-four division among the members of the Court is confined to the case of accused Juan Escober with ten
members voting to acquit him and four members dissenting from his acquittal. On my part, I have given him the
benefit of the doubt and voted for his acquittal. The superior and immutable rule is that the guilt of an accused must
be proven beyond reasonable doubt by virtue of the constitutional presumption of his innocence, which presumption
must prevail unless overturned by clear, competent and credible proof. Here, as discussed in the extensive main
opinion of the Court ably penned by Mr. Justice Fernan, the evidence as to the existence of a conspiracy between the
accused Juan Escober and the robbers-killers and as to his participation in the crime of robbery appears to be
inadequate and therefore failed to produce the required moral certainty of his guilt.

GUTIERREZ, JR., J., separate opinion:

While acknowledging the impeccable logic behind the concurring and dissenting opinion of Justice Florentino P.
Feliciano, I regret I cannot join him completely.

I entertain reasonable if not grave doubt as to the complicity of Juan Escober in the robbery and in the killing of two
children while the robbery was underway. It is an easy task after a crime has been consummated for us to surmise
how the mind of an accused should have operated during crucial moments and to state how an accused should have
behaved to avoid the possibility of his being implicated as a co-principal and conspirator. Unfortunately, things do not
always work logically and according to predictable patterns of behaviour in real life. The minds of ordinary persons
(and I see nothing special, extraordinary, or superior about the accused security guard), seldom behave in
predictable ways. Seemingly negligent or even inexplicable behaviour is not necessarily a badge of guilt. Not every
security guard who opens a gate when he should keep it closed can be accused of complicity in a crime even if evil
persons choose that particular moment of indiscretion to barge into the premises. I agree with Justice Fernan that
from the records of this case, the guilt of Juan Escober has not been proved with the degree of certainty required
under our penal laws.

I would also like to make some observations about the Court's apparently unqualified adherence to the precedent in
the 1907 case of U.S. v. Macalalad (9 Phil. 1) and the list of decisions from 1926 to 1927 cited in the separate opinion
of Justice Feliciano. A conspirator should not necessarily or automatically be found guilty of everything that happens
while the crime, object of the conspiracy, is being committed.

It would seem that unless a conspirator endeavors to prevent the other crime committed on the occasion of the
principal crime, object of the conspiracy, he would be guilty as a principal in the complex crime or other crime even if
he had absolutely no part in it. I may have no statistics to prove it but I believe that conspiracy improperly handled
could send more innocent persons to jail than any other principle in criminal law.For instance, many accused persons
protesting they had nothing to do with a crime have been convicted of malversation or estafa simply because the
documents evidencing the crime somehow passed their hands. A person who is in a stupor or is simply not paying
any attention during a drinking party where the details of a robbery, car-napping, or murder are planned could, in the
hands of a brilliant prosecutor, be convicted of the resulting crime and all its consequences.

I believe that appellant Punzalan in this case is guilty of robbery with homicide. My observations are simply aimed at
an unqualified adherence to the principle that the accused must always endeavor to prevent the other crime to be
freed from complicity in a crime he knew nothing about. Or that he must run away and leave his companions before
the second crime is committed. Every case must be judged on its separate facts and notwithstanding conspiracy in
the planned crime, a person may still be acquitted of the other crime about which he had no knowledge at all For
instance, if the innocent victims of the vicious killing in this case had been the children of Punzalan, certainly he
cannot be held guilty of parricide. Or if a band of robbers rape a woman inside a house not knowing he is the wife of
their look-out, the rule on all conspirators being equally responsible for all the consequences or happenings during
the commission of the planned crime should not apply. The precedents from Macalalad are impressively cited by my
teamed colleague, but I believe all judges should still be cautioned to look beyond the unqualified rule and ascertain
carefully whether the lookout or anybody else similarly situated should be automatically convicted for something
about which he was completely ignorant. The consequences of sending an innocent person to j ail for a crime where
he had no participation are too horrible to be left simply to the operation of an unqualified rule.

FELICIANO, J., concurring and dissenting :

With regret, I am compelled to dissent from the opinion written by Mr. Justice Fernan to the extent that it would acquit
Juan Escober. I would, upon the other hand, like to add somewhat to the reference made in the majority opinion to
the rule on the basis of which Punzalan is correctly held liable for robbery with homicide.

We consider first the proposed acquittal of Juan Escober.

The prosecution theory, as found by the majority opinion, was that Juan Escober was a principal by indispensable
cooperation in the crime of robbery with homicide. According to the majority opinion, the prosecution sought to prove
that Escober joined in the community of design, a conspiracy, which was shown in respect of the other accused, by
referring to the following particular acts of Escober:

[1] [Escober's] alleged act of opening the gate of the compound to his co- conspirators;

[2] his having been seen by Mrs. Lina Chua behind Abuyen, the alleged mastermind, after the gun
shot; and

[3] his having volunteered the information to Mrs. Chua that he was not hit.

The prosecution further urged that the firing of a hand gun by Abuyen was a mere ritual designed to avoid or deflect
suspicion from Escober and that Escober's version of the incident [was] too replete with contradictions "to merit
belief"

The opening of the gate of the Chua compound to the malefactors by Escober was absolutely indispensable for the
commission of the crime of robbery and for the killing of the two (2) children of Mr. and Mrs. Vicente Chua in the
course thereof. In abstracto, the act of opening a gate upon hearing a knock is, of course, an innocent gesture. It is
important to bear in mind, however, that Escober was a security guard; that he had seen and recognized Abuyen
through the peephole in the pedestrians' gate before opening that gate; and surely the least that can be expected of a
security guard, who is on guard duty at night time, is that he must exclude from the premises being guarded persons
who have not demonstrated any lawful reason for wanting to enter such premises. If one assumes that Escober had
not joined the criminal conspiracy, it was at the very least utterly reckless for him to have opened the gate under the
circumstance in this case. The fact that Escober was acquainted with Abuyen was no justification for letting Abuyen
and his gang come in. Upon the other hand, the circumstance that Escober knew Abuyen suggests at least the
probability that Escober was indeed part of the criminal conspiracy if Escober was totally unacquainted with Abuyen,
that probability would not of course exist It must further be noted that Escober himself, who had thoughtfully left his
gun in a locker before opening the gate of the compound, 1 did not claim that he had been coerced by Abuyen and
his companions into opening the gate of the compound. 2 If he had in fact been forced into opening the gate by
Abuyen and company, it would have been the simplest and most natural thing in the world for him to have said so.
Abuyen, the brains of the conspiracy, however, conveniently explained later that he had pointed his gun at Escober,
almost apologetically, after Escober had opened the small gate and let Abuyen and the other malefactors into the
compound.

Mrs. Lina Chua testified that upon hearing a shot, and thereupon turning to the garage from whence the sound of the
shot came, she saw Abuyen walking towards the gate with Escober about a meter behind. 3 It must not escape notice
there was no suggestion by any witness that Escober was then chasing and trying to capture Abuyen, which a
security guard faithful to his duties might be expected at least to try to do. The majority opinion does try to suggest
that because Mrs. Lina Chua, in the separate trial of Abuyen, had said that Abuyen and Escober were warning
towards the gate; they were in a hurry (nagmamadali)," Escober could be regarded as 'indeed chasing Abuyen/Alorte
Escober himself had not claimed that he had somehow summoned his courage and sought to capture Abuyen
immediately after Abuyen had, according to Escober, fired a shot at him but had missed. Thus, the suggested
interpretation would seem unreal and excessively generous to Escober. There was also no evidence that Escober
was trying to flee or hide himself from Abuyen. The net effect, if the testimony of Mrs. Lina Chua is to be believed at
all, was that Escober was acting in concert with Abuyen, presumably to facilitate the escape of Abuyen and his
companions.

Clearly, the testimony of Mrs. Chua was critical for the prosecution. The majority opinion, however, rejects totally the
testimony of Mrs. Chua as suffer[ing] from inaccuracy and as being susceptible to other interpretations" in the
premises, when "taken in conjunction with the extrajudicial confession of Abuyen." It must be observed, with respect,
that the majority opinion so discarded Mrs. Chua's testimony upon the totally speculative ground that it is not contrary
to human psychology and experience," that Mrs. Lina Chua having lost two (2) of her children to the robbers, would in
seeking vengeance deliberately and baselessly implicate Escober in the robbery and the killings as a "sacrificial
lamb." There appears no basis for this speculation at all. Moreover, the rejection of Mrs. Chua's testimony runs
counter to the prevailing jurisprudence which has been summed up in the following terms in People v. Roxas:

... Neither is the relationship of Victorino and Paterno to the deceased sufficient to render their
testimony doubtful nor enough to discredit their credibility. The credibility of witnesses cannot be
assailed as prejudiced simply because of their close relation to the victim. For it is not to be lightly
supposed that the relatives of the deceased would callously violate their conscience to avenge the
death of a dear one by blaming it on persons whom they know to be innocent. 4

It was part of the prosecution theory that Abuyen had fired a shot, presumably in the air, in order to create the
impression that Escober was not part of the conspiracy. Escober claimed that the shot had been fired at him while he
was inside the van in the garage, and advised Mrs. Chua that he had not been hit by the shot. 5 The first point that
may be noted in this connection is that if the robbers had really wanted to kill Escober in order to prevent Escober's
later Identifying them, there was absolutely nothing to prevent them from doing so. The two (2) young children of Mrs.
Chua had been stabbed to death brutally to prevent them from Identifying the robbers; yet, if E scober is to be
believed, the robbers made no more than a token, half hearted, effort to insure that Escober, an adult male and a
security guard, would not Identify them. Escober was not even tied up and blind-folded. It is hence difficult to
appreciate the "keen observation" of Escober's counsel that Escober would be the "stupidest person on earth" if he
allowed himself "to be shot by a gun—to avoid suspicion that he was in cahoots with the malefactors." Escober was
in fact not wounded at all. No bullet hole was found in the van where Escober claimed to have been crouching when
Abuyen shot at him. 6 Upon the other hand, a shot fired in the air can only be regarded as a cheap method for
supporting a profession of innocence on the part of Escober. Escober's counsel was simply begging the question.

In the majority opinion, reliance is placed upon statements made by co-accused Macario Punzalan during the
preliminary investigation, and upon an extrajudicial statement of Abuyen (accused in a separate criminal case) to
support the position that the gun play was not mere play-acting and that Escober was not part of the criminal
conspiracy. The statements coming from Punzalan and Abuyen must, however, be taken with great caution. For it
must be recalled that the testimony of accomplices—principals confederates or conspirators — while admissible and
competent, comes from a "polluted source." Consequently, as Mr. Justice Malcolm cautioned, such testimony must
be "scrutinized with care. It is properly subject to grave suspicion. If not corroborated,credibility is affected." 7 It should
also be pointed out that the statement of Punzalan adduced in this connection in the majority opinion,
appears disjointed and totally unrelated to the question in response to which it was given. The statement of Punzalan,
in other words, would appear, not spontaneous and candid" (as suggested in the majority opinion) but rather to have
been deliberately thrown in for the purpose of exculpating Escober. Thus:

FISCAL: Ito ng umakyat kayo sa bahay ay sumama ba?

PUNZALAN: Hindi ho, nasa ibaba po rin ako sir.

FISCAL: Ito [referring to Escober] nakita mong umakyat?

PUNZALAN: Hindi ho, kung baga sa ano ay pinapapatay ho sa akin ni Abuyen ni

Alorte.

FISCAL: Bakit?

PUNZALAN: Ewan ko po, hindi ko po alam ang dahilan.

FISCAL: Pero hindi mo naman pinatay.

 PUNZALAN: Hindi po.

FISCAL: Bakit?

PUNZALAN: Ewan ko po, dahil hindi ko po alam nga ang dahilan, sir, kasi po ay
gusto kong mahuli yung Abuyen sapagkat iyon pong talaga ang utak
eh. (Emphasis supplied)

To accept and to accord full credence to statements of proven conspirators to all appearances designed to avoid
suspicion from settling on Escober, who had made the robbery and double homicide possible to begin with, while
rejecting as biased the testimony of Mrs. Lina Chua solely because she was the mother of the slain children, must
seem a strange situation indeed. If one must, without requiring proof, impute a 'sense of justice and fairness' to
Abuyen from whose mind the conspiracy sprang and whose hands and arms were splattered with the blood of the
two (2) young children of Mrs. Lina Chua, one ought not, it is submitted, to assume casually that Mrs. Lina Chua was
bereft of that same 'sense of justice and fairness."

While each of the acts of Escober cited by the prosecution might not, considered in isolation from the others, be
sufficient to show participation in the common criminal design, it is submitted that where those acts are considered
together, and viewed in the light of what Abuyen, Punzalan and their other two companions did, and did not do, they
constitute more than adequate basis for not overturning the conclusion of the trial court that Escober was guilty. After
all, it was not this Court but the trial judge who examined all the evidence and listened to all the testimony, and his
conclusion, even if too cryptically set down on paper, must be given great weight.

We turn to Macario Punzalan whom the majority opinion finds guilty of robbery with homicide. There is no question
that Punzalan participated in the common design to commit robbery. He acted as lookout for the gang of robbers. He
did not go upstairs to the house which was ransacked and where the victims were slain; unlike Abuyen, he did not
take part in the actual stabbing of the two (2) innocent children of Vicente and Lina Chua. Even so, the majority
opinion, stressing that Punzalan's participation in the conspiracy to commit robbery was conclusively shown, rightly
held him responsible for robbery with double homicide.

Because the above rule on this matter and its underlying ratio have not always been well understood and because a
handful of decisions of this Court contain language or have reached results which, at first glance, may seem at
variance with the rule above referred to, it should be useful to examine in some detail the development of that rule
and to mark out its present scope and shape.

The rule correctly applied by the Court was unanimously reaffirmed by the Court en banc most recently in People v.
Pecato (G.R. No. L-41008, 18 June 1987) in the following terms:

The crime committed by the accused is Robbery with Homicide as defined and penalized under
Article 294 (1), of the Revised Penal Code. Felix Larong was shot to death during the robbery. We
have repeatedly held that: (A)s long as homicide resulted during or because of the robbery, even if
the killing is by mere accident, robbery with homicide is committed; it is only the result obtained,
without reference or distincttion as to the circumstances, causes, modes or persons intervening in
the commission of the crime that has to be taken into consideration. (People vs. Guiapar, No. L-
35465, May 31,1984,129 SCRA 539, 553554 [1984].) Further, whenever a homicide has been
committed as a consequence of or on the occasion of a robbery, all those who took part as
principals in the commission of the crime are also guilty as principals in the special complex crime
of robbery with homicide although they did not actually take part in the homicide unless it clearly
appeared that they endeavored to prevent the homicide. (Id., 554, citing: People vs. Bautista, 49
Phil. 389 [19261; and U.S. vs. Macalalad, 9 Phil 1 [1907].) In this instance, the evidence on record
is bereft of any showing that any of the accused tried to prevent the killing of Felix Larong. What is
shown instead is that they merely stood watching and did nothing when one of their companions
shot the victim. (T.s.n. session of October 21, 1974, 29; Deposition, Id., 3, 5.) Additionally, the term
'homicide' in robbery with homicide should be understood as a generic term and includes murder.
(People vs. Revotoc, No. L-37425, July 25, 1981, 106 SCRA 22 [1981]. )

xxx xxx xxx

(Emphasis supplied.)
The rule so reiterated in Pecato was first elaborated upon as long ago as 8 October 1907 in U.S. v. Macalalad, 9 Phil.
1. Mr. Justice Carson, speaking for the Supreme Court, said:

... While it does not appear that this defendant [Fructizoso Esguerra] himself struck the fatal blow
which caused the death of Rufino Calderon he must be adjudged guilty as principal of the complex
crime of robbery with homicide with which he is charged, it having been proved that he was
present, ad.ded, abetted, and took part therein. The testimony of the witnesses for the prosecution
fully establishes the guilt of the defendant as a principal in the commission of the robbery, and,
even were we to disregard his confession, which he repudiated at the trial of' the case, and wherein
he admitted he was present at the killing of Rufino Calderon, we would, nevertheless, be compelled
to find him guilty of the crime of robo con homicide (robbery with homicide). The supreme court of
Spain, interpreting the provisions of the Penal Code touching the complex crime of robo con
homicidio has frequently decided that, where the complex crime has been committed, all those who
look part as principals in the commission of the robbery are guilty as principals in the commission of
the crime of robo con homicidio, unless it appears that the endeavored to prevent the unlawful
killing. (Decisions of the supreme court of Spain, April 30 and February 23, 1872, and June 19,
1890. See also Viada, vol. 3, pp. 347, 354, and 356).

Accepting as true the exculpatory statements of the accused in his repudiated confession, it does
not appear therefrom that he made any genuine effort to prevent the murder of Rufino Calderon.

xxx xxx xxx 8

(Emphasis supplied.)

The rule in Macalalad was consistently followed until 1925 when U.S. v. Basisten, 47 Phil. 493 (1925) was decided. In
Basisten, Mr. Justice Romualdez wrote, for the Court:

The liability of the other appellants Andres Pasquin Placido Heusca Vicente Caballero and
Alejandro Picate, consist in having conspired and taken part in the robbery. They must not be held
responsible for the homicide which was not the subject matter of their conspiracy and in which they
did not have any intervention, for it was performed by Emilio Huesca alone. The proper
punishment, therefore, for them is the penalty for robbery in band within the limits of which the trial
court has imposed upon them. 9

But in 1926, barely one year after Basisten had deviated from Macalalad, the Supreme Court went back to the
Macalalad rule. In People vs. Bautista, the Court, through Mr. Justice Johnson, invoked and applied the Macalalad
rule without even mentioning the deviation in Basisten:

xxx xxx xxx

In the first place it may be said that the evidence adduced during the trial of the cause clearly
shows that the appellants are guilty of the crime of robbery with homicide and must therefore be
punished in accordance with the provisions of paragraph 1 of article 503 of the Penal Code. It is
clearly established that the appellants, together with an armed band of more than four persons,
committed a robbery and that on the occasion of such robbery a homicide was committed. The
crime which they committed therefore falls clearly within the provisions of said article. (Decision of
the Supreme Court of Spain, July 13, 1871; 3 Viada, Commentaries on the Penal Code, p.
347.) Whenever a homicide has been committed as a consequence or on the occasion of a
robbery, all principals in the commission of the robbery will also be held guilty as principals in the
complex crime of robbery with homicide, although they did not actually take part in the homicide,
unless it clearly appeared that they endeavored to prevent the homicide. 10

From 1926 to 1967, the Macalalad doctrine was applied and re-applied many times by the Court. The following list
does not purport to be exhaustive:

1. People v. Morados, 70 Phil. 558 (1940);

 2. People v. de la Rosa, 90 Phil. 365 (1952);

3. People v. Libre, 93 Phil. 5 (1953);

4. People v. Lingad, 98 Phil. 5 (1955);

5. People v. Mangulabnan, G.R. No. L-8919,28 September 1956; 52 O.G. 6532 (1956);

6. People v. Gardon, 104 Phil. 371 (1958);

7. People v. Carunungan, 109 Phil. 534 (1960);

8. People v. Flores de Garcia, 111 Phil. 393 (1961); and

9. People v. Rogel, 4 SCRA 807 (1962).

In 1967, People v. Pelagic, 11 was decided. Here, U.S. v. Basisten, was indeed cited by the Court. A close scrutiny of
the facts in Pelagio will, however, show that the result there reached does not really represent a departure from
the Macalalad rule which, as noted above, had been reiterated many times since the 1925 Basisten case.

Pancho Pelagio and five (5) others conspired to rob a particular house in G. Villanueva St., Pasay City. Only Pelagio
and three (3) others actually carried out the robbery as planned. Pelagio acted as the lookout and posted himself at
the gate of the house; two (2) others actually entered the victim's premises; the fourth was ordered to hail and hold a
taxi in readiness for the getaway. The robbery was carried out as planned. But, when the two (2) robbers who had
gone up the house came down and out into the street, they failed to find Pelagio at the gate. The two (2) robbers
hurried to the next block where they found the fourth conspirator waiting for them inside a taxi. The two (2) robbers
boarded the taxi. As the taxi was about to leave, however, a jeepney arrived from the opposite direction and blocked
the taxi's way. A man alighted from the jeepney and started towards the taxi. One of the robbers recognized the man
as a police officer and ordered his companions to shoot which they did, killing the police officer. Pelagio later
explained to his associates that he had fled before the two (2) robbers had completed their job because he, Pelagic,
had seen someone slip out of the house being robbed apparently to summon the police. In a per curiam decision, the
Supreme Court modified the conviction of Pelagio from robbery with homicide to simple robbery. The Court said:

Even the decision under appeal recites that when Arcadio Balmeo and Oscar Caymo hurried out of
the victim's house after the robbery, Pancho Pelagio had evidently fled from his lookout post
because the pair, Balmeo and Caymo, failed to locate him at the gate where the was supposed to
have stationed himself. To be sure, the said decision itself renders the account that it was only
Balmeo and Caymo who walked together from the said house to the corner of Villanueva and F.
Fernando Streets where then they saw Armando Manalang waiting for them in a taxi and that it was
only when these three had taken to the said taxi, and the cab was about to leave, that the shooting
of Pat. Trinidad happened. When the homicide was committed, therefore, Pancho Pelagio could
not have had the least intervention or participation as might justify penalizing him likewise for the
said killing. So far as the records disclose, the conspirators were agreed only on the commission of
robbery; there is no evidence that homicide besides was determined by them when they plotted the
crime. All these warrant the exclusion of Pancho Pelagio from any responsibility for the said killing.
(People vs. Basisten, et al., 47 Phil. 493) ...

Clearly, Pelagio, having fled from the scene of the robbery, had abandoned the conspiracy and dissociated himself
from his co-conspirators even while the robbery was still in process and certainly before the unfortunate policeman
arrived on the scene as the robbers were about to escape in a taxi. Because of such abandonment and
dissociation, the conspiracy, whatever may have been the subject thereof, was over and done with, so far as
concerned Pelagio. Abandonment and dissociation are clear equivalents of efforts to prevent the homicide which,
under Macalalad, would exculpate one from liability for the homicide but not for the robbery.

It may be observed that very soon after Pelagic, the Supreme Court resumed application and reiteration of the
Macalalad rule. Thus, e.g.:

(1) People v. Atencio, 22 SCRA 88 (1968);

 (2) People v..Pujinio, 27SCRA1186(1969);

(3) People v. Puno, 56 SCRA 659 (1974);

(4) People v. Sumayo, 70 SCRA 448 (1976);

(5) People v. Navasca, 76 SCRA 70 (1977);

(6) People v. Page, 77 SCRA 348 (1977);

(7) People v. Berberino, 79 SCRA 694 (1977);

(8) People v. Cristobal, 91 SCRA 71 (1979);

(9) People v. Umbao, 103 SCRA 233 (1981);

(10) People v. Veloso, 112 SCRA 173 (1982);

(11) People v. Tabian, 120 SCRA 571 (1982);

(12) People Lot Solis, 128 SCRA 217 (1984);

(13) People v. Guiapar, 129 SCRA 539 (1984); and

(14) People v. Gapasin, 145 SCRA 178 (1986).

Clearly, the Court did not abandon the Macalalad rule by promulgating Pelagio, as Mr. Justice Antonio had
mistakenly supposed in his concurring opinion in People v. Adriano. 12 Examination of the cases listed above will
show, further, that the Macalalad rule, while it originated in a case involving a band (en cuadrilla), has in fact not been
limited by the Court to situations where a band was present. Indeed, the great majority of the above cases are
conspiracy cases where the technical elements of a band 13 were absent.

We turn to People v. Abalos, 14 and People v. Adriano, 15 which also need to be considered. A close examination of
the facts will show that Abalos and Adriano do not represent true departures from the 1907 Macalalad rule.

In Abalos, the accused Abalos and Mendiola, after a long drinking bout with two (2) other comrades got into a taxi
and directed the driver to take all four of them to the Arty Subdivision, Valenzuela, Bulacan, in the early hours of the
morning. Abalos was seated beside the driver; the other three (3) were in the back seat. Two (2) of the four (4)
comrades got off before reaching the subdivision, Abalos and Mendiola then directed the driver to enter the
subdivision. Abalos signalled Mendiola that he would hold up the driver. Abalos drew out a knife and held it at the
driver's neck. Mendiola at the same time demanded the driver's earnings and boxed him three (3) times on the back.
The driver refused to surrender his earnings and apparently tried to fight back. Abalos, infuriated by the driver's
resistance, plunged his seven and a half inch blade through the driver's right cheek. Unnerved by the sudden,
profuse bleeding of the, wounded driver, Abalos and Mendiola hastily left the taxicab, forgetting all about the driver's
earnings, and fled. The taxi driver suffered a massive hemorrhage which brought on death. Abalos and Mendiola
were convicted by the trial court of attempted robbery with homicide. The Supreme Court through then Mr. Justice
Aquino upheld the conviction of Abalos but found Mendiola guilty only of attempted robbery, citing in this connection
U.S. v. Basisten. The reference to Basisten in this case, however, appears quite unnecessary for the Court
had explicitly found a few pages that there in fact was no conspiracy at all, whether for robbery (holdup) or for
homicide. Mr. Justice Aquino wrote:

As already noted [Abalos] said in his confession that he was intoxicated when he stabbed the cab
driver, he and his companions had been ng continuously sometimes before the crime was
prepetrated. Intoxication mitigates his liability. It was not habitual nor intentional (Article 15, Revised
Penal Code). The holdup was not the offspring of planning and deliberation. It was a fatal
improvisation dictated by an impromptu impulse. 16 (Emphasis supplied).
Since there was neither conspiracy the presence of a band, there was in point of fact no occasion for application of
the doctrine of Macalalad nor of the Basisten case. Both Abalos and Mendiola were simply principals by direct
participation in the attempted robbery.

People v. Adriano involved the horrifying slaughter of five (5) security guards of the Rice and Corn Administration.
The security guards were hacked with an ax, one by one, as they lay hogtied on the floor. The malefactors numbered
about eleven (11) in all. The trial court found four (4) guilty of the crime of robbery with homicide. The precise
question before the Court was whether the decision of the trial court holding four (4) persons, including one Leonardo
Bernardo, guilty of robbery with homicide and sentencing them to death should be affirmed or whether Leonardo
Bernardo should be held guilty of robbery merely. A majority of six (6) justices plus one (1) concurring justice held
that Leonardo Bernardo was guilty of simple robbery. Six (6) other members of the Court voted for affirmance in
toto of the trial court's judgment. 17 The facts in Adriano as found by the Court showed that there
were two (2) conspiracies: one for the commission of robbery, which included Leonardo Bernardo and all the other
malefactors; 18 another, smaller, one for the commission of the multiple murder, which did not include Leonardo
Bernardo. The per curiam decision read, in relevant part:

... The awareness that just one of them being known and arrested would lead to the apprehension
of the other participants in the robbery, the common design of liquidating the possible witnesses to
avoid the grim possibility of their being all brought before the bar of justice entered the minds of
those specifically named above, and moved to act accordingly. Quite obviously Mariano Domingo
did nothing to prevent the killing which he himself hinted at as the next practical move to take
following the consummation of the robbery. The conspiracy Lo hill, born of the exigency of the
situation, therefore clearly involved Apolonio Adriano, Mario San Diego, Mariano Domingo and
possibly Pedro Miranda who is yet to be apprehended. Their respective acts clearly were directed
to the same object and for the same purpose. Once the conspiracy is established, which may be
done by mere circumstantial evidence, as direct evidence is not so easily obtainable (People vs.
Candado, 84 SCRA 508; People vs. Cabiling, 74 SCRA 285; People vs. Mejia, 55 SCRA 453;
People vs. Carino, 55 SCRA 516; People vs. Cadag, 2 SC RA 388), the conspirators are all liable
as co-principals, regardless of the extent and character of their respective participation in the
commission of the crime (People vs. Candado, 84 SCRA 508; People vs. Phones, 84 SCRA 167).

The Court, however, finds Leonardo Bernardo seemingly unaware of the intention to kill the
guards. The Idea of killing them arose only when Mariano Domingo called the attention of Apolonio
Adriano to his being known by the guards, being one of them. By that time the robbery had been
consummated, the jeep driven by him (Leonardo Bernardo) with Plate No. J-14362, was already
loaded with bags and carton boxes containing the stolen money...

... It was clearly only at the spur of the moment, so to speak, that Mariano Domingo and Apolonio
Adriano, joined by Mariano San Diego and Pedro Miranda, thought of having to kill the
guards, entirely without the knowledge of Leonardo Bernardo... 19 (Emphasis supplied.)

Because Leonardo Bernardo was not part of the smaller and later conspiracy (to kill the five guards) within the larger
conspiracy (to rob the treasury of the Rice and Corn Administration), he was found guilty of robbery only and his
sentence reduced from death to reclusion perpetua. Thus, the result reached in Adriano is compatible with
the Macalalad-Pecato doctrine.

What may be stressed, in resume is that the result reached by the Court in respect of the accused Punzalan is in line
with the rule first elaborated in U.S. v. Macalalad (1907) and most recently reaffirmed in People v.
Pecato (1987,). U.S. v. Basisten, a case whose rule was over-turned the very next year after it was promulgated, was
in fact an aberration. That the Court has today affirmed once more the Macalalad-Pecato doctrine evidences its
discriminating regard for settled rules.

That the Court has reaffirmed Macalalad-Pecato is important for another reason. To have disregarded Macalalad-
Pecato would have come too close to discarding the basic rule on conspiracy, that is, once a conspiracy or
community of criminal design is shown, then the concrete modality of participation in a crime becomes secondary for
determination of liability — "the act of one is the act of all." To require affirmative proof that the subject of the
conspiracy in this case embraced not just robbery but also the double homicide, is to lose sight of the fact that
conspiracy, in the nature of things, is almost always only indirectly or circumstantially shown, by proof of concerted
acts rather than by e.g., a written plan of action. To require such affirmative proof would also be to impose a very
heavy (and quite unnecessary) burden on our law enforcement agencies, a burden which under present
circumstances of rampant violent crime and severely limited governmental resources, may well be an insupportable
one. Our law on conspiracy is infused, in important degree, with the objective of deterring conspiracies to commit
crimes and the implementation of such conspiracies. A man's capacity for inflicting harm is magnified when he joins a
conspiracy to commit crime (whether or not a band, in the technical sense of Article 296, Revised Penal Code,
materializes). The threat to society posed by a criminal group is greater than the sum total of the particular acts of the
individual members of the group. The result here reached by the Court in respect of Punzalan may be seen to
reinforce the capability of our law to achieve that objective of deterrence.

Finally, there appears nothing unfair or illiberal about holding a man, who knowingly joins a conspiracy to commit a
crime, responsible for all the crimes which are causally connected with the conspiracy. 20 No one complains about the
same rule in tort law. One who joins a criminal conspiracy in effect adopts as his own the criminal designs of his co-
conspirators; he merges his will into the common felonious intent. A person who embraces a criminal conspiracy is
properly held to have cast his lot with his fellow conspirators and to have taken his chances that a co-conspirator may
get rattled, that a victim may unexpectedly decide to resist and fight back, or that something else may go awry, and
third persons may get killed or injured in the course of implementing the basic criminal design. To free himself from
such liability, the law requires some overt act on the part of the conspirator, to seek to prevent commission of the
second or related felony or to abandon or dissociate himself from the conspiracy.

I vote to affirm the judgment of the trial court that both Juan Escober and Macario Punzalan, Jr. are guilty beyond
reasonable doubt as principals in the crime of robbery with homicide and that accordingly, both should be sentenced
to suffer the penalty of reclusion perpetua and to Idemnify the heirs of the victims in the amount of P60,000.00 and to
pay moral damages to such heirs in the amount of P200,000.00.

Melencio-Herrrera, Sarmiento, and Padilla, concur and dissent:

Separate Opinions

TEEHANKEE, C.J., concurring:

I concur in toto with the judgment of the Court (a) holding that the 1-1/2 page, single-spaced, decision of the trial court
presided by Judge Oscar Leviste, sentencing the accused at bar to the supreme penalty of death without
specification of the evidence, testimonial and documentary, upon which his conclusions finding them guilty had been
based falls short of the constitutional requirement that every decision of a court of justice clearly and distinctly state
the facts and the law on which it is based; (b) acquitting the accused Juan Escober of the crime of robbery with
homicide on the ground that his guilt has not been proved beyond reasonable doubt; and (c ) finding the other
accused Macario Punzalan, Jr. guilty beyond reasonable doubt as principal in the complex crime of robbery with
homicide and imposing upon him the penalty of reclusion perpetua in view of the abolition of the death penalty under
the 1987 Constitution.

a) This brief concurrence is just to restate that the whole Court en banc is unanimous as to the utter failure of the trial
judge's 1-1/2 page decision to conform to the mandatory constitutional requirement that a decision must clearly state
the facts and the law on which it is based. Normally, in such cases, the case would have to be remanded to the court
a quo for the rendition of a new judgment that does conform to the constitutional mandate but the Court, since all the
briefs have been filed, opted to review the record and the evidence and to render judgment accordingly in order to
avoid further delay in the disposition of the case on the merits;

b) The whole Court en banc is likewise unanimous in its judgment finding the accused Macario Punzalan, Jr. guilty
beyond reasonable doubt of the crime of robbery with homicide, even as it reaffirms the settled doctrine in Criminal
Law that whenever a homicide has been committed as a consequence of or on the occasion of the robbery, all those
who took part as conspirators in the commission of the crime of robbery are also guilty as principals of the special
complex crime of robbery with homicide although they did not actually take part in the homicide, unless it clearly
appears that they endeavored to prevent the homicide under the basic principle that once a conspiracy or community
of criminal design is shown, then the actual mode of participation in a crime of any of the accused, whether he be a
lookout posted outside the scene of the robbery, is of no moment, since the act of one conspirator is the act of all.
This has been the consistent doctrine of the Court applied since the early 1907 case of U.S. v. Macalalag and most
recently affirmed in the 1987 case of People vs. Pecato as traced by Mr. Justice Feliciano in Ms scholarly separate
opinion; and

c) The ten-to-four division among the members of the Court is confined to the case of accused Juan Escober with ten
members voting to acquit him and four members dissenting from his acquittal. On my part, I have given him the
benefit of the doubt and voted for his acquittal. The superior and immutable rule is that the guilt of an accused must
be proven beyond reasonable doubt by virtue of the constitutional presumption of his innocence, which presumption
must prevail unless overturned by clear, competent and credible proof. Here, as discussed in the extensive main
opinion of the Court ably penned by Mr. Justice Fernan, the evidence as to the existence of a conspiracy between the
accused Juan Escober and the robbers-killers and as to his participation in the crime of robbery appears to be
inadequate and therefore failed to produce the required moral certainty of his guilt.

GUTIERREZ, JR., J., separate opinion:

While acknowledging the impeccable logic behind the concurring and dissenting opinion of Justice Florentino P.
Feliciano, I regret I cannot join him completely.

I entertain reasonable if not grave doubt as to the complicity of Juan Escober in the robbery and in the killing of two
children while the robbery was underway. It is an easy task after a crime has been consummated for us to surmise
how the mind of an accused should have operated during crucial moments and to state how an accused should have
behaved to avoid the possibility of his being implicated as a co-principal and conspirator. Unfortunately, things do not
always work logically and according to predictable patterns of behaviour in real life. The minds of ordinary persons
(and I see nothing special, extraordinary, or superior about the accused security guard), seldom behave in
predictable ways. Seemingly negligent or even inexplicable behaviour is not necessarily a badge of guilt. Not every
security guard who opens a gate when he should keep it closed can be accused of complicity in a crime even if evil
persons choose that particular moment of indiscretion to barge into the premises. I agree with Justice Fernan that
from the records of this case, the guilt of Juan Escober has not been proved with the degree of certainty required
under our penal laws.

I would also like to make some observations about the Court's apparently unqualified adherence to the precedent in
the 1907 case of U.S. v. Macalalad (9 Phil. 1) and the list of decisions from 1926 to 1927 cited in the separate opinion
of Justice Feliciano. A conspirator should not necessarily or automatically be found guilty of everything that happens
while the crime, object of the conspiracy, is being committed.

It would seem that unless a conspirator endeavors to prevent the other crime committed on the occasion of the
principal crime, object of the conspiracy, he would be guilty as a principal in the complex crime or other crime even if
he had absolutely no part in it. I may have no statistics to prove it but I believe that conspiracy improperly handled
could send more innocent persons to jail than any other principle in criminal law.For instance, many accused persons
protesting they had nothing to do with a crime have been convicted of malversation or estafa simply because the
documents evidencing the crime somehow passed their hands. A person who is in a stupor or is simply not paying
any attention during a drinking party where the details of a robbery, car-napping, or murder are planned could, in the
hands of a brilliant prosecutor, be convicted of the resulting crime and all its consequences.

I believe that appellant Punzalan in this case is guilty of robbery with homicide. My observations are simply aimed at
an unqualified adherence to the principle that the accused must always endeavor to prevent the other crime to be
freed from complicity in a crime he knew nothing about. Or that he must run away and leave his companions before
the second crime is committed. Every case must be judged on its separate facts and notwithstanding conspiracy in
the planned crime, a person may still be acquitted of the other crime about which he had no knowledge at all For
instance, if the innocent victims of the vicious killing in this case had been the children of Punzalan, certainly he
cannot be held guilty of parricide. Or if a band of robbers rape a woman inside a house not knowing he is the wife of
their look-out, the rule on all conspirators being equally responsible for all the consequences or happenings during
the commission of the planned crime should not apply. The precedents from Macalalad are impressively cited by my
teamed colleague, but I believe all judges should still be cautioned to look beyond the unqualified rule and ascertain
carefully whether the lookout or anybody else similarly situated should be automatically convicted for something
about which he was completely ignorant. The consequences of sending an innocent person to j ail for a crime where
he had no participation are too horrible to be left simply to the operation of an unqualified rule.

FELICIANO, J., concurring and dissenting :

With regret, I am compelled to dissent from the opinion written by Mr. Justice Fernan to the extent that it would acquit
Juan Escober. I would, upon the other hand, like to add somewhat to the reference made in the majority opinion to
the rule on the basis of which Punzalan is correctly held liable for robbery with homicide.

We consider first the proposed acquittal of Juan Escober.

The prosecution theory, as found by the majority opinion, was that Juan Escober was a principal by indispensable
cooperation in the crime of robbery with homicide. According to the majority opinion, the prosecution sought to prove
that Escober joined in the community of design, a conspiracy, which was shown in respect of the other accused, by
referring to the following particular acts of Escober:

[1] [Escober's] alleged act of opening the gate of the compound to his co- conspirators;

[2] his having been seen by Mrs. Lina Chua behind Abuyen, the alleged mastermind, after the gun
shot; and

[3] his having volunteered the information to Mrs. Chua that he was not hit.

The prosecution further urged that the firing of a hand gun by Abuyen was a mere ritual designed to avoid or deflect
suspicion from Escober and that Escober's version of the incident [was] too replete with contradictions "to merit
belief"

The opening of the gate of the Chua compound to the malefactors by Escober was absolutely indispensable for the
commission of the crime of robbery and for the killing of the two (2) children of Mr. and Mrs. Vicente Chua in the
course thereof. In abstracto, the act of opening a gate upon hearing a knock is, of course, an innocent gesture. It is
important to bear in mind, however, that Escober was a security guard; that he had seen and recognized Abuyen
through the peephole in the pedestrians' gate before opening that gate; and surely the least that can be expected of a
security guard, who is on guard duty at night time, is that he must exclude from the premises being guarded persons
who have not demonstrated any lawful reason for wanting to enter such premises. If one assumes that Escober had
not joined the criminal conspiracy, it was at the very least utterly reckless for him to have opened the gate under the
circumstance in this case. The fact that Escober was acquainted with Abuyen was no justification for letting Abuyen
and his gang come in. Upon the other hand, the circumstance that Escober knew Abuyen suggests at least the
probability that Escober was indeed part of the criminal conspiracy if Escober was totally unacquainted with Abuyen,
that probability would not of course exist It must further be noted that Escober himself, who had thoughtfully left his
gun in a locker before opening the gate of the compound, 1 did not claim that he had been coerced by Abuyen and
his companions into opening the gate of the compound.2 If he had in fact been forced into opening the gate by
Abuyen and company, it would have been the simplest and most natural thing in the world for him to have said so.
Abuyen, the brains of the conspiracy, however, conveniently explained later that he had pointed his gun at Escober,
almost apologetically, after Escober had opened the small gate and let Abuyen and the other malefactors into the
compound.

Mrs. Lina Chua testified that upon hearing a shot, and thereupon turning to the garage from whence the sound of the
shot came, she saw Abuyen walking towards the gate with Escober about a meter behind. 3 It must not escape notice
there was no suggestion by any witness that Escober was then chasing and trying to capture Abuyen, which a
security guard faithful to his duties might be expected at least to try to do. The majority opinion does try to suggest
that because Mrs. Lina Chua, in the separate trial of Abuyen, had said that Abuyen and Escober were warning
towards the gate; they were in a hurry (nagmamadali)," Escober could be regarded as 'indeed chasing Abuyen/Alorte
Escober himself had not claimed that he had somehow summoned his courage and sought to capture Abuyen
immediately after Abuyen had, according to Escober, fired a shot at him but had missed. Thus, the suggested
interpretation would seem unreal and excessively generous to Escober. There was also no evidence that Escober
was trying to flee or hide himself from Abuyen. The net effect, if the testimony of Mrs. Lina Chua is to be believed at
all, was that Escober was acting in concert with Abuyen, presumably to facilitate the escape of Abuyen and his
companions.

Clearly, the testimony of Mrs. Chua was critical for the prosecution. The majority opinion, however, rejects totally the
testimony of Mrs. Chua as suffer[ing] from inaccuracy and as being susceptible to other interpretations" in the
premises, when "taken in conjunction with the extrajudicial confession of Abuyen." It must be observed, with respect,
that the majority opinion so discarded Mrs. Chua's testimony upon the totally speculative ground that it is not contrary
to human psychology and experience," that Mrs. Lina Chua having lost two (2) of her children to the robbers, would in
seeking vengeance deliberately and baselessly implicate Escober in the robbery and the killings as a "sacrificial
lamb." There appears no basis for this speculation at all. Moreover, the rejection of Mrs. Chua's testimony runs
counter to the prevailing jurisprudence which has been summed up in the following terms in People v. Roxas:

... Neither is the relationship of Victorino and Paterno to the deceased sufficient to render their
testimony doubtful nor enough to discredit their credibility. The credibility of witnesses cannot be
assailed as prejudiced simply because of their close relation to the victim. For it is not to be lightly
supposed that the relatives of the deceased would callously violate their conscience to avenge the
death of a dear one by blaming it on persons whom they know to be innocent. 4

It was part of the prosecution theory that Abuyen had fired a shot, presumably in the air, in order to create the
impression that Escober was not part of the conspiracy. Escober claimed that the shot had been fired at him while he
was inside the van in the garage, and advised Mrs. Chua that he had not been hit by the shot. 5 The first point that
may be noted in this connection is that if the robbers had really wanted to kill Escober in order to prevent Escober's
later Identifying them, there was absolutely nothing to prevent them from doing so. The two (2) young children of Mrs.
Chua had been stabbed to death brutally to prevent them from Identifying the robbers; yet, if E scober is to be
believed, the robbers made no more than a token, half hearted, effort to insure that Escober, an adult male and a
security guard, would not Identify them. Escober was not even tied up and blind-folded. It is hence difficult to
appreciate the "keen observation" of Escober's counsel that Escober would be the "stupidest person on earth" if he
allowed himself "to be shot by a gun—to avoid suspicion that he was in cahoots with the malefactors." Escober was
in fact not wounded at all. No bullet hole was found in the van where Escober claimed to have been crouching when
Abuyen shot at him. 6 Upon the other hand, a shot fired in the air can only be regarded as a cheap method for
supporting a profession of innocence on the part of Escober. Escober's counsel was simply begging the question.

In the majority opinion, reliance is placed upon statements made by co-accused Macario Punzalan during the
preliminary investigation, and upon an extrajudicial statement of Abuyen (accused in a separate criminal case) to
support the position that the gun play was not mere play-acting and that Escober was not part of the criminal
conspiracy. The statements coming from Punzalan and Abuyen must, however, be taken with great caution. For it
must be recalled that the testimony of accomplices—principals confederates or conspirators — while admissible and
competent, comes from a "polluted source." Consequently, as Mr. Justice Malcolm cautioned, such testimony must
be "scrutinized with care. It is properly subject to grave suspicion. If not corroborated,credibility is affected." 7 It should
also be pointed out that the statement of Punzalan adduced in this connection in the majority opinion,
appears disjointed and totally unrelated to the question in response to which it was given. The statement of Punzalan,
in other words, would appear, not spontaneous and candid" (as suggested in the majority opinion) but rather to have
been deliberately thrown in for the purpose of exculpating Escober. Thus:

FISCAL: Ito ng umakyat kayo sa bahay ay sumama ba?

PUNZALAN: Hindi ho, nasa ibaba po rin ako sir.

FISCAL: Ito [referring to Escober] nakita mong umakyat?

PUNZALAN: Hindi ho, kung baga sa ano ay pinapapatay ho sa akin ni Abuyen ni

Alorte.

FISCAL: Bakit?

PUNZALAN: Ewan ko po, hindi ko po alam ang dahilan.

FISCAL: Pero hindi mo naman pinatay.

PUNZALAN: Hindi po.

FISCAL: Bakit?

PUNZALAN: Ewan ko po, dahil hindi ko po alam nga ang dahilan, sir, kasi po ay
gusto kong mahuli yung Abuyen sapagkat iyon pong talaga ang utak
eh. (Emphasis supplied)
To accept and to accord full credence to statements of proven conspirators to all appearances designed to avoid
suspicion from settling on Escober, who had made the robbery and double homicide possible to begin with, while
rejecting as biased the testimony of Mrs. Lina Chua solely because she was the mother of the slain children, must
seem a strange situation indeed. If one must, without requiring proof, impute a 'sense of justice and fairness' to
Abuyen from whose mind the conspiracy sprang and whose hands and arms were splattered with the blood of the
two (2) young children of Mrs. Lina Chua, one ought not, it is submitted, to assume casually that Mrs. Lina Chua was
bereft of that same 'sense of justice and fairness."

While each of the acts of Escober cited by the prosecution might not, considered in isolation from the others, be
sufficient to show participation in the common criminal design, it is submitted that where those acts are considered
together, and viewed in the light of what Abuyen, Punzalan and their other two companions did, and did not do, they
constitute more than adequate basis for not overturning the conclusion of the trial court that Escober was guilty. After
all, it was not this Court but the trial judge who examined all the evidence and listened to all the testimony, and his
conclusion, even if too cryptically set down on paper, must be given great weight.

We turn to Macario Punzalan whom the majority opinion finds guilty of robbery with homicide. There is no question
that Punzalan participated in the common design to commit robbery. He acted as lookout for the gang of robbers. He
did not go upstairs to the house which was ransacked and where the victims were slain; unlike Abuyen, he did not
take part in the actual stabbing of the two (2) innocent children of Vicente and Lina Chua. Even so, the majority
opinion, stressing that Punzalan's participation in the conspiracy to commit robbery was conclusively shown, rightly
held him responsible for robbery with double homicide.

Because the above rule on this matter and its underlying ratio have not always been well understood and because a
handful of decisions of this Court contain language or have reached results which, at first glance, may seem at
variance with the rule above referred to, it should be useful to examine in some detail the development of that rule
and to mark out its present scope and shape.

The rule correctly applied by the Court was unanimously reaffirmed by the Court en banc most recently in People v.
Pecato (G.R. No. L-41008, 18 June 1987) in the following terms:

The crime committed by the accused is Robbery with Homicide as defined and penalized under
Article 294 (1), of the Revised Penal Code. Felix Larong was shot to death during the robbery. We
have repeatedly held that: (A)s long as homicide resulted during or because of the robbery, even if
the killing is by mere accident, robbery with homicide is committed; it is only the result obtained,
without reference or distincttion as to the circumstances, causes, modes or persons intervening in
the commission of the crime that has to be taken into consideration. (People vs. Guiapar, No. L-
35465, May 31,1984,129 SCRA 539, 553554 [1984].) Further, whenever a homicide has been
committed as a consequence of or on the occasion of a robbery, all those who took part as
principals in the commission of the crime are also guilty as principals in the special complex crime
of robbery with homicide although they did not actually take part in the homicide unless it clearly
appeared that they endeavored to prevent the homicide. (Id., 554, citing: People vs. Bautista, 49
Phil. 389 [19261; and U.S. vs. Macalalad, 9 Phil 1 [1907].) In this instance, the evidence on record
is bereft of any showing that any of the accused tried to prevent the killing of Felix Larong. What is
shown instead is that they merely stood watching and did nothing when one of their companions
shot the victim. (T.s.n. session of October 21, 1974, 29; Deposition, Id., 3, 5.) Additionally, the term
'homicide' in robbery with homicide should be understood as a generic term and includes murder.
(People vs. Revotoc, No. L-37425, July 25, 1981, 106 SCRA 22 [1981]. )

xxx xxx xxx

(Emphasis supplied.)

The rule so reiterated in Pecato was first elaborated upon as long ago as 8 October 1907 in U.S. v. Macalalad, 9 Phil.
1. Mr. Justice Carson, speaking for the Supreme Court, said:

... While it does not appear that this defendant [Fructizoso Esguerra] himself struck the fatal blow
which caused the death of Rufino Calderon he must be adjudged guilty as principal of the complex
crime of robbery with homicide with which he is charged, it having been proved that he was
present, ad.ded, abetted, and took part therein. The testimony of the witnesses for the prosecution
 fully establishes the guilt of the defendant as a principal in the commission of the robbery, and,
even were we to disregard his confession, which he repudiated at the trial of' the case, and wherein
he admitted he was present at the killing of Rufino Calderon, we would, nevertheless, be compelled
to find him guilty of the crime of robo con homicide (robbery with homicide). The supreme court of
Spain, interpreting the provisions of the Penal Code touching the complex crime of robo con
homicidio has frequently decided that, where the complex crime has been committed, all those who
look part as principals in the commission of the robbery are guilty as principals in the commission of
the crime of robo con homicidio, unless it appears that the endeavored to prevent the unlawful
killing. (Decisions of the supreme court of Spain, April 30 and February 23, 1872, and June 19,
1890. See also Viada, vol. 3, pp. 347, 354, and 356).

Accepting as true the exculpatory statements of the accused in his repudiated confession, it does
not appear therefrom that he made any genuine effort to prevent the murder of Rufino Calderon.

xxx xxx xxx 8

(Emphasis supplied.)

The rule in Macalalad was consistently followed until 1925 when U.S. v. Basisten, 47 Phil. 493 (1925) was decided. In
Basisten, Mr. Justice Romualdez wrote, for the Court:

The liability of the other appellants Andres Pasquin Placido Heusca Vicente Caballero and
Alejandro Picate, consist in having conspired and taken part in the robbery. They must not be held
responsible for the homicide which was not the subject matter of their conspiracy and in which they
did not have any intervention, for it was performed by Emilio Huesca alone. The proper
punishment, therefore, for them is the penalty for robbery in band within the limits of which the trial
court has imposed upon them. 9

But in 1926, barely one year after Basisten had deviated from Macalalad, the Supreme Court went back to the
Macalalad rule. In People vs. Bautista, the Court, through Mr. Justice Johnson, invoked and applied the Macalalad
rule without even mentioning the deviation in Basisten:

xxx xxx xxx

In the first place it may be said that the evidence adduced during the trial of the cause clearly
shows that the appellants are guilty of the crime of robbery with homicide and must therefore be
punished in accordance with the provisions of paragraph 1 of article 503 of the Penal Code. It is
clearly established that the appellants, together with an armed band of more than four persons,
committed a robbery and that on the occasion of such robbery a homicide was committed. The
crime which they committed therefore falls clearly within the provisions of said article. (Decision of
the Supreme Court of Spain, July 13, 1871; 3 Viada, Commentaries on the Penal Code, p.
347.) Whenever a homicide has been committed as a consequence or on the occasion of a
robbery, all principals in the commission of the robbery will also be held guilty as principals in the
complex crime of robbery with homicide, although they did not actually take part in the homicide,
unless it clearly appeared that they endeavored to prevent the homicide. 10

From 1926 to 1967, the Macalalad doctrine was applied and re-applied many times by the Court. The following list
does not purport to be exhaustive:

1. People v. Morados, 70 Phil. 558 (1940);

2. People v. de la Rosa, 90 Phil. 365 (1952);

3. People v. Libre, 93 Phil. 5 (1953);

4. People v. Lingad, 98 Phil. 5 (1955);

 5. People v. Mangulabnan, G.R. No. L-8919,28 September 1956; 52 O.G. 6532 (1956);

6. People v. Gardon, 104 Phil. 371 (1958);

7. People v. Carunungan, 109 Phil. 534 (1960);

8. People v. Flores de Garcia, 111 Phil. 393 (1961); and

9. People v. Rogel, 4 SCRA 807 (1962).

In 1967, People v. Pelagic, 11 was decided. Here, U.S. v. Basisten, was indeed cited by the Court. A close scrutiny of
the facts in Pelagio will, however, show that the result there reached does not really represent a departure from
the Macalalad rule which, as noted above, had been reiterated many times since the 1925 Basisten case.

Pancho Pelagio and five (5) others conspired to rob a particular house in G. Villanueva St., Pasay City. Only Pelagio
and three (3) others actually carried out the robbery as planned. Pelagio acted as the lookout and posted himself at
the gate of the house; two (2) others actually entered the victim's premises; the fourth was ordered to hail and hold a
taxi in readiness for the getaway. The robbery was carried out as planned. But, when the two (2) robbers who had
gone up the house came down and out into the street, they failed to find Pelagio at the gate. The two (2) robbers
hurried to the next block where they found the fourth conspirator waiting for them inside a taxi. The two (2) robbers
boarded the taxi. As the taxi was about to leave, however, a jeepney arrived from the opposite direction and blocked
the taxi's way. A man alighted from the jeepney and started towards the taxi. One of the robbers recognized the man
as a police officer and ordered his companions to shoot which they did, killing the police officer. Pelagio later
explained to his associates that he had fled before the two (2) robbers had completed their job because he, Pelagic,
had seen someone slip out of the house being robbed apparently to summon the police. In a per curiam decision, the
Supreme Court modified the conviction of Pelagio from robbery with homicide to simple robbery. The Court said:

Even the decision under appeal recites that when Arcadio Balmeo and Oscar Caymo hurried out of
the victim's house after the robbery, Pancho Pelagio had evidently fled from his lookout post
because the pair, Balmeo and Caymo, failed to locate him at the gate where the was supposed to
have stationed himself. To be sure, the said decision itself renders the account that it was only
Balmeo and Caymo who walked together from the said house to the corner of Villanueva and F.
Fernando Streets where then they saw Armando Manalang waiting for them in a taxi and that it was
only when these three had taken to the said taxi, and the cab was about to leave, that the shooting
of Pat. Trinidad happened. When the homicide was committed, therefore, Pancho Pelagio could
not have had the least intervention or participation as might justify penalizing him likewise for the
said killing. So far as the records disclose, the conspirators were agreed only on the commission of
robbery; there is no evidence that homicide besides was determined by them when they plotted the
crime. All these warrant the exclusion of Pancho Pelagio from any responsibility for the said killing.
(People vs. Basisten, et al., 47 Phil. 493) ...

Clearly, Pelagio, having fled from the scene of the robbery, had abandoned the conspiracy and dissociated himself
from his co-conspirators even while the robbery was still in process and certainly before the unfortunate policeman
arrived on the scene as the robbers were about to escape in a taxi. Because of such abandonment and
dissociation, the conspiracy, whatever may have been the subject thereof, was over and done with, so far as
concerned Pelagio. Abandonment and dissociation are clear equivalents of efforts to prevent the homicide which,
under Macalalad, would exculpate one from liability for the homicide but not for the robbery.

It may be observed that very soon after Pelagic, the Supreme Court resumed application and reiteration of the
Macalalad rule. Thus, e.g.:

(1) People v. Atencio, 22 SCRA 88 (1968);

(2) People v..Pujinio, 27SCRA1186(1969);

(3) People v. Puno, 56 SCRA 659 (1974);

(4) People v. Sumayo, 70 SCRA 448 (1976);

 (5) People v. Navasca, 76 SCRA 70 (1977);

(6) People v. Page, 77 SCRA 348 (1977);

(7) People v. Berberino, 79 SCRA 694 (1977);

(8) People v. Cristobal, 91 SCRA 71 (1979);

(9) People v. Umbao, 103 SCRA 233 (1981);

(10) People v. Veloso, 112 SCRA 173 (1982);

(11) People v. Tabian, 120 SCRA 571 (1982);

(12) People Lot Solis, 128 SCRA 217 (1984);

(13) People v. Guiapar, 129 SCRA 539 (1984); and

(14) People v. Gapasin, 145 SCRA 178 (1986).

Clearly, the Court did not abandon the Macalalad rule by promulgating Pelagio, as Mr. Justice Antonio had
mistakenly supposed in his concurring opinion in People v. Adriano. 12 Examination of the cases listed above will
show, further, that the Macalalad rule, while it originated in a case involving a band (en cuadrilla), has in fact not been
limited by the Court to situations where a band was present. Indeed, the great majority of the above cases are
conspiracy cases where the technical elements of a band 13 were absent.

We turn to People v. Abalos, 14 and People v. Adriano, 15 which also need to be considered. A close examination of
the facts will show that Abalos and Adriano do not represent true departures from the 1907 Macalalad rule.

In Abalos, the accused Abalos and Mendiola, after a long drinking bout with two (2) other comrades got into a taxi
and directed the driver to take all four of them to the Arty Subdivision, Valenzuela, Bulacan, in the early hours of the
morning. Abalos was seated beside the driver; the other three (3) were in the back seat. Two (2) of the four (4)
comrades got off before reaching the subdivision, Abalos and Mendiola then directed the driver to enter the
subdivision. Abalos signalled Mendiola that he would hold up the driver. Abalos drew out a knife and held it at the
driver's neck. Mendiola at the same time demanded the driver's earnings and boxed him three (3) times on the back.
The driver refused to surrender his earnings and apparently tried to fight back. Abalos, infuriated by the driver's
resistance, plunged his seven and a half inch blade through the driver's right cheek. Unnerved by the sudden,
profuse bleeding of the, wounded driver, Abalos and Mendiola hastily left the taxicab, forgetting all about the driver's
earnings, and fled. The taxi driver suffered a massive hemorrhage which brought on death. Abalos and Mendiola
were convicted by the trial court of attempted robbery with homicide. The Supreme Court through then Mr. Justice
Aquino upheld the conviction of Abalos but found Mendiola guilty only of attempted robbery, citing in this connection
U.S. v. Basisten. The reference to Basisten in this case, however, appears quite unnecessary for the Court
had explicitly found a few pages that there in fact was no conspiracy at all, whether for robbery (holdup) or for
homicide. Mr. Justice Aquino wrote:

As already noted [Abalos] said in his confession that he was intoxicated when he stabbed the cab
driver, he and his companions had been ng continuously sometimes before the crime was
prepetrated. Intoxication mitigates his liability. It was not habitual nor intentional (Article 15, Revised
Penal Code). The holdup was not the offspring of planning and deliberation. It was a fatal
improvisation dictated by an impromptu impulse. 16 (Emphasis supplied).

Since there was neither conspiracy the presence of a band, there was in point of fact no occasion for application of
the doctrine of Macalalad nor of the Basisten case. Both Abalos and Mendiola were simply principals by direct
participation in the attempted robbery.

People v. Adriano involved the horrifying slaughter of five (5) security guards of the Rice and Corn Administration.
The security guards were hacked with an ax, one by one, as they lay hogtied on the floor. The malefactors numbered
about eleven (11) in all. The trial court found four (4) guilty of the crime of robbery with homicide. The precise
question before the Court was whether the decision of the trial court holding four (4) persons, including one Leonardo
Bernardo, guilty of robbery with homicide and sentencing them to death should be affirmed or whether Leonardo
Bernardo should be held guilty of robbery merely. A majority of six (6) justices plus one (1) concurring justice held
that Leonardo Bernardo was guilty of simple robbery. Six (6) other members of the Court voted for affirmance in
toto of the trial court's judgment. 17 The facts in Adriano as found by the Court showed that there
were two (2) conspiracies: one for the commission of robbery, which included Leonardo Bernardo and all the other
malefactors; 18 another, smaller, one for the commission of the multiple murder, which did not include Leonardo
Bernardo. The per curiam decision read, in relevant part:

... The awareness that just one of them being known and arrested would lead to the apprehension
of the other participants in the robbery, the common design of liquidating the possible witnesses to
avoid the grim possibility of their being all brought before the bar of justice entered the minds of
those specifically named above, and moved to act accordingly. Quite obviously Mariano Domingo
did nothing to prevent the killing which he himself hinted at as the next practical move to take
following the consummation of the robbery. The conspiracy Lo hill, born of the exigency of the
situation, therefore clearly involved Apolonio Adriano, Mario San Diego, Mariano Domingo and
possibly Pedro Miranda who is yet to be apprehended. Their respective acts clearly were directed
to the same object and for the same purpose. Once the conspiracy is established, which may be
done by mere circumstantial evidence, as direct evidence is not so easily obtainable (People vs.
Candado, 84 SCRA 508; People vs. Cabiling, 74 SCRA 285; People vs. Mejia, 55 SCRA 453;
People vs. Carino, 55 SCRA 516; People vs. Cadag, 2 SC RA 388), the conspirators are all liable
as co-principals, regardless of the extent and character of their respective participation in the
commission of the crime (People vs. Candado, 84 SCRA 508; People vs. Phones, 84 SCRA 167).

The Court, however, finds Leonardo Bernardo seemingly unaware of the intention to kill the
guards. The Idea of killing them arose only when Mariano Domingo called the attention of Apolonio
Adriano to his being known by the guards, being one of them. By that time the robbery had been
consummated, the jeep driven by him (Leonardo Bernardo) with Plate No. J-14362, was already
loaded with bags and carton boxes containing the stolen money...

... It was clearly only at the spur of the moment, so to speak, that Mariano Domingo and Apolonio
Adriano, joined by Mariano San Diego and Pedro Miranda, thought of having to kill the
guards, entirely without the knowledge of Leonardo Bernardo... 19 (Emphasis supplied.)

Because Leonardo Bernardo was not part of the smaller and later conspiracy (to kill the five guards) within the larger
conspiracy (to rob the treasury of the Rice and Corn Administration), he was found guilty of robbery only and his
sentence reduced from death to reclusion perpetua. Thus, the result reached in Adriano is compatible with
the Macalalad-Pecato doctrine.

What may be stressed, in resume is that the result reached by the Court in respect of the accused Punzalan is in line
with the rule first elaborated in U.S. v. Macalalad (1907) and most recently reaffirmed in People v.
Pecato (1987,). U.S. v. Basisten, a case whose rule was over-turned the very next year after it was promulgated, was
in fact an aberration. That the Court has today affirmed once more the Macalalad-Pecato doctrine evidences its
discriminating regard for settled rules.

That the Court has reaffirmed Macalalad-Pecato is important for another reason. To have disregarded Macalalad-
Pecato would have come too close to discarding the basic rule on conspiracy, that is, once a conspiracy or
community of criminal design is shown, then the concrete modality of participation in a crime becomes secondary for
determination of liability — "the act of one is the act of all." To require affirmative proof that the subject of the
conspiracy in this case embraced not just robbery but also the double homicide, is to lose sight of the fact that
conspiracy, in the nature of things, is almost always only indirectly or circumstantially shown, by proof of concerted
acts rather than by e.g., a written plan of action. To require such affirmative proof would also be to impose a very
heavy (and quite unnecessary) burden on our law enforcement agencies, a burden which under present
circumstances of rampant violent crime and severely limited governmental resources, may well be an insupportable
one. Our law on conspiracy is infused, in important degree, with the objective of deterring conspiracies to commit
crimes and the implementation of such conspiracies. A man's capacity for inflicting harm is magnified when he joins a
conspiracy to commit crime (whether or not a band, in the technical sense of Article 296, Revised Penal Code,
materializes). The threat to society posed by a criminal group is greater than the sum total of the particular acts of the
individual members of the group. The result here reached by the Court in respect of Punzalan may be seen to
reinforce the capability of our law to achieve that objective of deterrence.

Finally, there appears nothing unfair or illiberal about holding a man, who knowingly joins a conspiracy to commit a
crime, responsible for all the crimes which are causally connected with the conspiracy. 20 No one complains about the
same rule in tort law. One who joins a criminal conspiracy in effect adopts as his own the criminal designs of his co-
conspirators; he merges his will into the common felonious intent. A person who embraces a criminal conspiracy is
properly held to have cast his lot with his fellow conspirators and to have taken his chances that a co-conspirator may
get rattled, that a victim may unexpectedly decide to resist and fight back, or that something else may go awry, and
third persons may get killed or injured in the course of implementing the basic criminal design. To free himself from
such liability, the law requires some overt act on the part of the conspirator, to seek to prevent commission of the
second or related felony or to abandon or dissociate himself from the conspiracy.

I vote to affirm the judgment of the trial court that both Juan Escober and Macario Punzalan, Jr. are guilty beyond
reasonable doubt as principals in the crime of robbery with homicide and that accordingly, both should be sentenced
to suffer the penalty of reclusion perpetua and to Idemnify the heirs of the victims in the amount of P60,000.00 and to
pay moral damages to such heirs in the amount of P200,000.00.

Melencio-Herrrera, Sarmiento, and Padilla, concur and dissent:

Footnotes

1 P. 3, Petition, Rollo in G.R. No. 69658.

* Amadeo Abuyen alias Roberto Alorte was subsequently apprehended, tried and convicted by the
same trial court. His appeal is also before this Court.

2 Pp. 4-10, Consolidated Brief, p. 376, Rollo in G.R. No. 69564.

3 Pp. 100-103, Rollo in G.R. No. 69564.

4 Pp. 163-165, Rollo, in G.R. No. 69564.

5 Pp. 10-11, Rollo, G.R. No. 69658.

6 Pp. 167-168, Rollo, G.R. No. 69564.

7 Pp. 608-609, Original Records Vol. 1.

8 Sec. 16, Article IV, 1973 Constitution and Sec. 16, Art. III, 1987 Constitution,

9 Exh. "A", Folder of Exhibits, p. 2.

10 Pp. 38-39, G.R. No. 69658, Rollo.

11 Pp. 64-66, Folder of Exhibits, Original Records, Volume 3, Underscoring supplied.

12 Pp. 154 and 171, G.R. No. 69658, Rollo.

13 Tsn, August 1, 1986, p. 132.

14 People vs. Sabilano, 132 SCRA 83.

15 Sec. 19, Art. IV 1973 Constitution.

16 People vs. Bihasa, 130 SCRA 62; People vs. Castelo, 133 SCRA 667 and People vs.
Magallanes, 147 SCRA 92.

17 Exh. "M", pp. 22-23, Folder of Exhibits, Original Records, Vol. 3.

18 Exh. "F". P. 7, Folder of Exhibits, Original Records, Vol. 3.

19 People vs. Galit, 135 SCRA 465; People vs. Pascual, Jr., 109 SCRA 192 and People vs. Rojas,
147 SCRA 169.

20 Constitution, Article IV, Sec. 20.

21 Ilagan vs. Enrile, 139 SCRA 349.

22 People vs. Encipido 146 SCRA 478.

23 See People vs. Nierra, 96 SCRA 1.

24 People vs. Rogel, 4 SCRA 807; People vs. Atencio, 22 SCRA 88; People vs. Pujinio 27 SCRA
1186; People vs. Puno, 56 SCRA 659-1 People vs. Berberino, 79 SCRA 694; People v. Umbao,
103 SCRA 233; People vs. Tabian, 120 SCRA 571; People vs. Solis, 128 SCRA 217; People vs
Gapasin, 145 SCRA 178.

Feliciano, J. concurring and dissenting

1 Original TSN, p. 4, 3 October 1983.

2 Id., pp. 10-11, 24 October 1983.

3 Id., pp. 2-3, 5 December 1983.

4 73 SCRA 583 at 590 (1976); underscoring supplied. See also People v. Ruiz, 93 SCRA 739
(1979) and People v. Puesca, 87 SCRA 130 (1978).

5 Original TSN, p. 22, 16 August 1983.

6 Id., p., 17, 25 November 1983.

7 U.S. v. Remigio, 37 Phil. 599 at 610 [1918]. See also U.S. v. Ambrosia 17 Phil. 295 [1910] and
people v. Alto, 26 SCRA342 [1968].

8 9 Phil. I at 6 (1907). See also U.S. v. Santos, 4 Phil. 189 (1905) which anticipates the Macalalad
case.

9 47 Phil. 493 at 495-496 (1925).

10 49 Phil, 389 at 396 (1926).

11 20 SCRA 153 (1967).

12 Mr. justice Antonio wrote:

"Although in People v. Rogel. 4 SCRA 807, this Court abandoned: the ruling in people vs. Basisten,
47 Phil. 493 (1925) and reverted to the former doctrine enunciated d in U.S. v. Macalalad 9 Phil. 1,
reiterating the rule that whenever a homicide has been committed as a consc equence or on the
occasion of a robbery, all those who took part as principals in the commission of the robbery will
also be held guilty as principals in the complex crime of robbery with homicide, although they did
not actually take part in the homicide, unless it clearly appeared that they endeavored to pr event
the homicide, this Court abandoned that rule in the subsequent case of People v. Pelagic, 20SCRA
153.In that case, this Court reverted to People v. Basisten, supra, and held that where the appellant
conspired to commit robbery and he acted as lookout during the commission of the robbery, but
after the robbery was consummated and as the other conspirators were leaving the scene of the
crime, they encountered a policeman whom they killed, the lookout is guilty only of robbery with
intimidation and not of robbery with homicide. As the Court stated therein:

.... When the homicide was committed, therefore, Pancho Pelagio could not have had the least
intervention or participation as might justify penalizing him likewise for the said killing. So far as the
records disclose, the conspirators were agreed only on the commission of robbery; there is no
evidence that homicide besides was determined by them when they plotted the crime. All these
warrant the exclusion of Pancho Pelagio from any responsibility for the said killing (People v.
Basisten, et al., 47 Phil. 493). Considering that those who actually participated in the robbery were
only three, Pancho Pelagio included, and only one of them was armed, the same evidently was not
in band Art 296, Revised Penal Code). This being the case, then it would indeed be irregular or
questionable to hold Pancho Pelagio similarly responsible as Caymo and Balmeo for the killing of
Pat. Trinidad. Under the code, it is only when the robbery is in band that all those present in the
commission of the robbery may be punished, for any of the assaults which its members might
commit. ... (At pp. 159-160).

Trinidad. Under the code, it is only when the robbery is in band that all those present in the
commission of the robbery may be punished, for any of the assaults which its members might
commit. ... (At pp. 159-160).

This ruling in Pelagic, therefore, appears applicable to the case of Leonardo Bernardo, hence my
concurrence.' (95 SCRA at 125-126; underscoring supplied)

13 See Article 296, Revised Penal Code and Article 504, Penal Code of the Philippine Islands.

14 57 SCRA 330 (1974).

15 95 SCRA 107 (1980).

16 57 SCRA 338 (1974).

17 These were: Teehankee, Aquino, Santos, Abad Santos, and Melencio- Herrera, JJ. Barredo J.,
agreed with Aquino, J., with respect to the [liabilities] of the appellants' but voted for the imposition
of life imprisonment in view of 'the unusually long detention of appellants after their conviction by
the lower courts.

18 See 95 SCRA at 112-113.

19 95 SCRA 107 at 121 and 122 (1980).

20 The notion of causality has been referred to by the Supreme Court of Spain in, e.g., its decision
of 23 February 1872 in the following terms:

... —E] Tribunal Supreme ha declarado que siendo ambos procesados autores del robo lo son
igualmente el homicidio que ocurrio en el mismo acto, al tiempo de ser perseguidoes por el
interfector; porque este ultimo delito esta de tal manera enlazado con el de robo que a no haber
mediado este ni los robados hubieran pedido auxilio, rii al prestarselo el tercero hubiese sido
muerto como lo fue y que por consiguiente habiendo tomado parte directa en al ejecucion del robo
ambos procesados, son autores uno y otro segun el articulo 13 del Codigo Penal, y por lo riiismo
responsables los dos de todas las consecuencias de su accion. (S. de 30 de abril de 1872, Gaceta
de 1. de julio.)"—as quoted in People v. Lingad, 98 Phil. 5, at 10 (1955).
 EN BANC

[G.R. No. 126531. April 21, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GILBERT ELIJORDE y DE LA CRUZ and REYNALDO
PUNZALAN y ZACARIAS alias KIRAT, accused-appellants.

DECISION
BELLOSILLO, J.:

GILBERT ELIJORDE Y DE LA CRUZ and REYNALDO PUNZALAN Y ZACARIAS alias Kirat were convicted of
murder by the Regional Trial Court of Bulacan for the killing of Eric Hierro. Both accused were sentenced to death and
ordered jointly and severally to indemnify the heirs of Eric Hierro P50,000.00 plus P35,000.00 for actual
damages, P100,000.00 for moral damages and P25,000.00 for exemplary damages. The case is now with us on
automatic review.
The records show that at around 6:00 oclock in the evening of 21 May 1995 Eric Hierro, Benjamin Visbal and
Rodel Contemplado were drinking in the house of the latter. Sometime later, Hierro and Visbal went out to buy mango
at a nearby sari-sari store. Accused Gilbert Elijorde, Reynaldo Punzalan and a certain Edwin Menes were at the time
in front of the store. As Menes approached Hierro the latter warned Menes, Dont touch me, my clothes will get dirty.
Suddenly Menes punched Hierro on the face, followed by Elijorde who also boxed Hierro on the face, and Punzalan
who kicked Hierro at the back. Hierro and Visbal ran for their lives. They sought shelter at Contemplados house. After
some three (3) minutes, Hierro went out of the house to go home together with Visbal and the latters wife.
As they walked home, Visbal noticed the accused Elijorde, Punzalan and Menes waiting for them. As Hierro and
company drew near, Punzalan kicked Hierro at the back for the second time. Visbal tried to retaliate by punching
Punzalan on the face but was held back by his wife. Hierro ran away pursued by Elijorde. They were followed by
Visbal. Elijorde stabbed Hierro at the back. When Hierro fell down, Elijorde placed himself on top of Hierro who was
now raising his arms defensively and pleading, Maawa na kayo, huwag ninyo akong patayin, wala akong kasalanan sa
inyo. Despite the pleas of Hierro for mercy, Elijorde stabbed him with a knife on the chest and then fled. Visbal and his
wife brought Hierro to the hospital where he died soon after.
Dr. Benito Caballero, Medico-Legal Officer of Bocaue, Bulacan, conducted a post-mortem examination of Eric
Hierro, and reported that the cause of his death was shock resulting from multiple stab wounds in the thorax penetrating
the aorta and vena cava.[1]
Gilbert Elijorde, Reynaldo Punzalan and Edwin Menes alias Nonong[2] were accordingly charged in an Information
for murder of Eric Hierro qualified by treachery, evident premeditation and abuse of superior strength. But only Elijorde
and Punzalan were arrested and tried. Menes has since remained at large.
Both accused contend that the court a quo erred in finding that treachery qualified the killing of Hierro to murder,
and in finding Punzalan guilty of murder by reason of conspiracy withElijorde. The defense argues that Punzalan did
not conspire with Elijorde because the only participation of Punzalan in the commission of the offense was his kicking
of Hierro twice: first, after Hierro was boxed by Elijorde and Menes in front of the nearby sari sari store, and the second
time, when Hierro was on his way home; that Punzalan remained in the place where he kicked Hierro and did nothing
more; that he did not join or cooperate with Elijorde in pursuing and stabbing the deceased; and, that the acts of kicking
Hierro were neither in pursuance of the same criminal design of Elijorde nor done in concert aimed at the attainment of
the same objective of killing Hierro.
Indeed, with respect to accused Reynaldo Punzalan, the Court cannot assert with moral certainty that he is guilty
of murder. To convict him as a principal by direct participation in the instant case, it is necessary that conspiracy
between him and his co-accused Elijorde be proved. That, precisely, is wanting in the present case. Conspiracy must
be proved as indubitably as the crime itself through clear and convincing evidence, not merely by conjecture.[3] To hold
an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in
pursuance or furtherance of the complicity.[4] Hence, conspiracy exists in a situation where at the time the malefactors
were committing the crime, their actions impliedly showed unity of purpose among them, a concerted effort to bring
about the death of the victim.[5] In a great majority of cases, complicity was established by proof of acts done in concert,
i.e., acts which yield the reasonable inference that the doers thereof were acting with a common intent or
design. Therefore, the task in every case is determining whether the particular acts established by the requisite
quantum of proof do reasonably yield that inference.[6]
Clearly, the testimony of eyewitness Benjamin Visbal narrated the circumstances surrounding the killing of Hierro,
to wit:
Q: Now, you said that Eric Hierro went to the store to buy mango, do you know the reason why there was a boxing
incident?
A: Yes, Your Honor.
Q: What was the reason?
A: When Nongnong approached Eric, Eric stated, "Dont touch me, my clothes will become dirty."
Q: Who is this Nongnong?
A: Edwin Meneses,[7] Your Honor.
Q: When Eric Hierro said that what did Edwin Menes(es ) do?
A: He suddenly punched Eric Hierro.
Q: When Eric Hierro (was) punched what did this Gilbert Elijorde do?
A: Gilbert Elijorde also punched Eric Hierro.
Q: How about Reynaldo Punzalan?
A: Reynaldo Punzalan kicked Hierro at the back, Your Honor.
Q: That was during the first incident?
A: Yes, Your Honor.
Q: You mean to say they were three at that time?
A: Yes, Your Honor.
Q: Now, after that Eric Hierro went home?
A: Yes, Your Honor.
Q: How long did Eric Hierro stayed (sic) at that place?
A: For about three (3) minutes, Your Honor.
Q: When Eric Hierro went out you went with him together with Eric Hierro?
A: Yes, Your Honor.
Q: Together with your wife?
A: Yes, Your Honor.
Q: When the three of you went out what happened?
A: While we were walking home this Kirat (Reynaldo Punzalan) suddenly kicked Eric Hierro at the back.
Q: Do you mean to say aside from the first incident Kirat kicked Eric Hierro, (during) the second incident Kirat kicked
Eric Hierro?
A: Yes, Your Honor.
Q: When you were approaching, how many of them were there waiting for Eric Hierro?
A: The three of them were waiting for Eric Hierro but during the chasing it was only Gilbert Elijorde who chased us.
 Q; What did Edwin do during the second incident?
A: He did nothing.
Q: How about Kirat?
A: He kicked Eric Hierro at the back.
Q: After that what did you do?
A: I cant (sic) do anything, Your Honor, because I was being held by my wife.
Q: How about Eric Hierro what did he do?
A: He ran away x x x x
Q: While Eric Hierro was running did you see that Gilbert stab Eric at the back?
A: Yes, Your Honor.
Q: That was the first stab that was made by Gilbert is that correct?
A: Yes, Your Honor.
Q: What happened to Eric when he was stabbed at the back?
A: He continued running, Your Honor.
Q: And how about Gilbert what did Gilbert do?
A: He continued chasing, Your Honor.
Q: How about your wife where was your wife?
A: At my back, Your Honor.
Q: When you met Eric Hierro at a certain point what did you actually see?
A: That was when I saw Gilbert stab Eric Hierro right on the chest.
Q: And when Eric Hierro was already lying (facing?) up?
A: Yes, Your Honor.
Q: And Gilbert was on top of Eric Hierro?
A: Yes, Your Honor.
Q: And you saw Gilbert stab Eric Hierro?
A: Yes, Your Honor.
Q: How many times?
A: Only once, Your Honor.
Q: During those incidents where was Kirat?
A: He did not run after Eric Hierro. He remained in front of the house of my cousin Rodel.
On the basis of the above testimony, the only involvement of Punzalan was kicking Hierro at the back before the
latter was pursued and stabbed by accused Elijorde. After kicking the victim, Punzalan remained where he was and
did not cooperate with Elijorde in pursuing Hierro to ensure that the latter would be killed. There is no other evidence
to show unity of purpose and design between Punzalan and Elijorde in the execution of the killing, which is essential to
establish conspiracy. His act of kicking Hierro prior to the actual stabbing by Elijorde does not of itself demonstrate
concurrence of wills or unity of purpose and action. For it is possible that the accused Punzalan had no knowledge of
the common design, if there was any, nor of the intended assault which was committed in a place far from where he
was. The mere kicking does not necessarily prove intention to kill. The evidence does not show that Punzalan knew
that Elijorde had a knife and that he intended to use it to stab the victim. [8] Neither can Punzalan be considered an
accomplice in the crime of murder. In order that a person may be considered an accomplice in the commission of the
offense, the following requisites must concur: (a) community of design, i.e., knowing that criminal design of the principal
by direct participation, he concurs with the latter in his purpose; (b) he cooperates in the execution of the offense by
previous or simultaneous acts; and, (c) there must be a relation between the acts done by the principal and those
attributed to the person charged as accomplice. The cooperation that the law punishes is the assistance knowingly or
intentionally rendered which cannot exist without previous cognizance of the criminal act intended to be executed. It is
therefore required in order to be liable either as a principal by indispensable cooperation or as an accomplice that the
accused must unite with the criminal design of the principal by direct participation. There is nothing on record to show
that accused Punzalan knew that Elijorde was going to stab Hierro, thus creating serious doubt on Punzalans criminal
intent.[9]
In the absence of a previous plan or agreement to commit a crime, the criminal responsibility arising from different
acts directed against one and the same person is individual and not collective, and that each of the participants is liable
only for his own acts.[10] Consequently, accused Punzalan must be absolved from all responsibility for the killing of
Hierro. It may be emphasized that at the time accused Elijorde intervened in the assault, Punzalan had already desisted
from his own acts of aggression. He did nothing in fact to assist Elijorde in the immediate commission of the
murder. Moreover, the act of kicking by Punzalan prior to the actual stabbing by Elijorde was evidently done without
knowledge of the criminal design on the part of the latter as that design had not yet been revealed prior to the killing of
Hierro.
As regards the kicking of the victim by Punzalan, which the latter admits, there is nothing on record to show that
the kicking resulted in any injury on any part of the body of Hierro.Neither is there any evidence that the victim was hit
at all when Punzalan kicked him. Of what then can Punzalan be held liable?
With regard to the principal accused Gilbert Elijorde, the trial court correctly ruled that treachery attended the
killing of Hierro thus qualifying the crime to murder. Treachery exists when the offender commits any of the crimes
against person, employing 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. The fact that a
verbal confrontation accompanied by physical assault by the group of Elijorde preceded the actual killing did not negate
the treacherous character of the stabbing which resulted in the death of Hierro. After the first physical assault which
sent Hierro retreating and seeking shelter in the house of a friend, the victim did not expect that the accused would
persist in inflicting harm upon him who, unaware of the impending danger, proceeded home with his
friends.Unfortunately, however, Elijorde was waiting for the deceased and pursued him to his end. After stabbing Hierro
at the back, and if only to ensure the success of his criminal design, accused Elijorde persistently chased his unarmed
quarry until he finally overpowered his victim and delivered the fatal stab on his chest. In one case, treachery was
present where the accused stabbed the victim with a bladed weapon even as his hands were raised and he was
pleading for mercy.[11] In another case where the accused who was armed with a revolver had an altercation with the
victim, fired at him, pursued him, and when cornered he (victim) threw himself on the floor, raised his hands and
begged the defendant not to shoot him as he was already wounded, but the malefactor just the same shot him thrice,
we held that there was treachery in the killing.[12]
We likewise agree with the trial court when it disregarded the aggravating circumstances of evident premeditation
and abuse of superior strength alleged in the Information. No sufficient evidence exists to show that the requisites of
evident premeditation were present, to wit: (a) the time when the offender decided to commit the crime; (b) an act
manifestly indicating that he had clung to his determination to commit it; and, (c) a sufficient lapse of time between the
determination and the execution to allow him to reflect upon the consequences of his act and for his conscience to
overcome the resolution of his will had he desired to hearken to its warnings. [13] Where there is no showing that the
accused Elijorde prior to the night of the commission of the crime resolved to kill the victim nor proof that such killing
was the result of meditation, calculation or resolution on his part, evident premeditation cannot be appreciated against
him.[14] Moreover, the time interval of three (3) minutes between the first and the second assault on Hierro is too brief
to have enabled Elijorde to ponder over what he intended to do with Hierro.The circumstance of abuse of superior
strength is absorbed in treachery; hence, it cannot be appreciated as an independent aggravating circumstance when
treachery is already present.[15]
The penalty for murder under Art. 248 of the Revised Penal Code as amended by RA 7659 is reclusion perpetua to
death. As regards the accused Gilbert Elijorde, the killing although qualified by treachery was not attended by any
generic modifying circumstance; consequently, the penalty to be imposed upon him must be the indivisible penalty
of reclusion perpetua.[16]With respect to the accused Reynaldo Punzalan, he should be acquitted of the crime charged
for insufficiency of evidence.
Although not objected to by the accused, we modify the award of damages adjudged by the court a quo in favor
of the heirs of the victim, particularly with regard to the moral and exemplary damages. The award of P100,000.00 for
moral damages may seem excessive considering the purpose of the award which is not to enrich the heirs but to
compensate them for injuries to their feelings. [17] For this reason, an award of P50,000.00 may be adequate and
reasonable.[18] The exemplary damages awarded by the trial court may be deleted since they are granted only when
the crime is committed with one (1) or more aggravating circumstances. In the instant case, treachery may no longer
be considered as an aggravating circumstance since it was already taken as a qualifying circumstance in the murder,
and abuse of superior strength which would otherwise warrant the award of exemplary damages was already absorbed
in the treachery.[19] But the indemnity for death fixed at P50,000.00 and the actual damages representing uncontested
funeral expenses of P35,000.00 should be affirmed.
On the part of accused Reynaldo Punzalan as there is no finding of criminal responsibility against him, only
accused Gilbert Elijorde should bear the liability for such civil indemnity as well as the actual and moral damages.
WHEREFORE, the decision of the court a quo is MODIFIED. Accused GILBERT ELIJORDE y DE LA CRUZ is
found GUILTY of MURDER and is accordingly sentenced to reclusion perpetua. Accused REYNALDO PUNZALAN y
ZACARIAS is ACQUITTED of the crime charged and is ordered RELEASED FROM CUSTODY IMMEDIATELY unless
legally held for another cause. In this regard, the Director of Prisons is directed to report to the Court his compliance
herewith within five (5) days from receipt hereof. Accused ELIJORDE is solely held responsible for the payment to the
heirs of the victim Eric Hierro the amounts of P50,000.00 for civil indemnity, P35,000.00 for actual damages
and P50,000.00 for moral damages.
SO ORDERED.
Davide, Jr., C.J., Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo,
Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
 FIRST DIVISION

[G.R. No. 114261. February 10, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERLY FABRO y AZUCENA, accused-appellant. Slxsc

DECISION

KAPUNAN, J.:

Appellant Berly Fabro y Azucena, together with her common-law husband Donald Pilay y Calag and Irene Martin,
was charged with the crime of "violation of Section 21 (b) Art. IV, in relation to Section 4, Art. II of Republic Act No.
6425, as amended," under Criminal Case No. 11231-R of the Regional Trial Court of Baguio City, in an information
that reads:

That on or about the 7th day of April 1993, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually aiding one another, did then and there willfully, unlawfully and feloniously sell and/or
deliver to PO2 ELLONITO APDUHAN, who acted as poseur-buyer, one (1) kilo of dried marijuana
leaves, a prohibited drug without any authority of law, in violation of the aforementioned provision of
law.

CONTRARY TO LAW.[1]

Upon arraignment, appellant and Donald Pilay pleaded not guilty to the crime charged. [2] A co-accused, Irene Martin,
remains at large.

The prosecutions case against herein appellant is as follows:

At around 5:00 oclock in the afternoon of April 7, 1993 in Camp Henry Allen, Baguio City, two "concerned
individuals," later identified as Gloria and Emma Borce,[3] reported to Chief Inspector Allyn Evasco of the 14th
Narcotics Regional Field Office, that a couple living together as husband and wife in Quirino Hill, Baguio City, was
engaged in selling marijuana. They added that sales usually took place between 5:00 and 6:00 p.m. [4]slxmis

Acting on that report, Chief Inspector Evasco organized two teams to conduct a buy-bust operation. The first team
was composed of SPO1 Modesto Carrera, SPO3 Delfin Salaria, SPO1 Galutan and one civilian agent while the
second team had Senior Inspector Franklin Mabanag and three (3) members of the 191st Mobile Force
Company.[5] Mabanag was to be the overall team leader with Batag as his assistant.[6] SPO2 Ellonito Apduhan was
designated poseur-buyer in the operation. After briefing the group, Chief Inspector Evasco gave P600.00 as purchase
money to Apduhan. The amount consisted of six P100-bills with their serial numbers duly listed down.[7]

With the civilian informers in tow, the group proceeded to Quirino Hill on board three vehicles. They arrived at around
5:45 p.m.[8] All of them disembarked from the vehicles except for Mabanag who stayed in his car. Apduhan, Gloria
and Emma took a stairway down to the house of Pilay and appellant below street level. Batag stationed himself on
the top portion of the stairway about twenty (20) meters from Pilays house. [9] Carrera positioned himself at the upper
portion of the road about thirty (30) meters away from the same house. [10] The back-up team deployed within the
immediate vicinity in such a way that they could clearly see the transaction between the suspected pushers and the
poseur-buyer. Missdaa

As Apduhan, Gloria and Emma drew near Pilays residence, appellant met them. Her common-law husband who
appeared drunk was inside the house by the main door.[11] Gloria and Emma introduced Apduhan to appellant as a
stranger in the place who wanted to buy marijuana. Appellant told them that a kilo would cost them P700.00 but she
agreed to Apduhans price of P600.00.[12] After Apduhan had ordered a kilo of the contraband, appellant told them to
wait a while.[13] Appellant then went to a house just behind her own.[14]

After a few minutes, she returned in the company of another woman who was later identified as Irene Martin.
Appellant was holding something that looked like a brick wrapped in newspaper and placed inside a transparent
plastic bag.[15] Appellant handed the stuff to Apduhan. Her companion, Irene Martin, demanded payment therefor.
Apduhan gave her the P600.00. Apduhan removed the wrapper of the merchandise. After ascertaining that it was a
brick of marijuana, he made the pre-arranged signal of lighting his cigarette.[16] Immediately, the back-up team rushed
towards their direction. However, before the team could reach them, Irene Martin ran away. Apduhan held appellant
so that she could not escape.[17] Donald Pilay was also arrested. The buy-bust team in pursuit of Irene Martin ended
up in her house with barangay councilman Dominic Dicoy. Since her house was locked, the team forcibly opened it.
Inside, they found Irenes husband, Eusebio Martin. The team obtained his consent to search the house. [18] The
search proved futile - neither Irene nor marijuana was found there.[19] Thereafter, the team brought the suspects and
the confiscated marijuana to their office at Camp Allen. Sdaadsc

The police prepared the booking sheet and arrest reports as regards Donald Pilay and appellant.[20] SPO1 Carrera,
SPO2 Apduhan and SPO3 Batag executed a joint affidavit of arrest.[21]The police requested the PNP Crime
Laboratory Service to examine the confiscated item. To identify it, Apduhan, Batag and Carrera affixed their
signatures thereon.[22] Forensic Chemist Lalaine Ong Rodrigo confirmed that the seized item weighing one (1) kilo
was indeed positive for marijuana.[23] However, since she could not go to Baguio City to testify, another forensic
chemist, Alma Margarita Villaseor conducted another test on 995.5 grams of specimen and found it to be positive for
marijuana.[24]

The defense presented a different version of the incident leading to the arrest of appellant and her common-law
husband. Appellant denied having sold marijuana to Apduhan, claiming that Gloria and Emma were the ones carrying
the pack of marijuana when the team approached her. According to appellant, at around 6:00 p.m. of April 7, 1993,
she was busy cooking in her house at Middle Quirino Hill, Baguio City. Her "husband" Donald was then drinking liquor
with their neighbors Eusebio Martin, George Matias and others. [25]Rtcspped

While cooking, appellant noticed Gloria and Emma Borce pass by. They went straight to the house of her neighbor
Irene Martin which was just behind her own house.[26] After a while, Irene summoned appellant to her house where
she was introduced to Gloria and Emma. The two asked appellant if she could do home service for them as appellant
was a beautician. They added that they needed a favor from appellant. However, they were not able to tell appellant
what favor it was because appellant excused herself to go back home and resume cooking. Moments later, Gloria
and Emma followed appellant to her house. They reiterated their need for appellants services as a beautician
provided that she would do them a favor. Appellant replied that she could not attend to them. Hearing this, the two
women left her. Appellant noticed that Gloria and Emma carried a regular-sized black shoulder bag.[27]

Gloria and Emma returned three minutes later. Gloria was no longer carrying the shoulder bag. Instead, she was
holding something wrapped in a newspaper.[28] Appellant overheard Emma telling Gloria to hold the
marijuana.[29] Armed men also accompanied the two women. Despite her objections, appellant was immediately
handcuffed by one of the armed men.[30] A commotion ensued in the midst of which Gloria and Emma disappeared.
Appellant was led to a waiting vehicle and was brought to the investigating division of the 14th NARCOM unit in
Camp Allen, Baguio City.

Appellants co-accused, Donald Pilay recounted that on April 7, 1993, he and one Pelayos were at the house of Dr.
Pilando to get their wages as the latters workers. Subsequently, they engaged in a drinking spree somewhere in
Hilltop near the vegetable section. In the afternoon of the same day, they transferred to Doros place. They resumed
their drinking session at the house of Eusebio Martin in Quirino Hill. On his way home, someone poked a gun at him
and placed him in the trunk of a vehicle. He was brought to Camp Allen where he saw his wife, appellant herein, with
barangay councilman Dicoy.[31]Korte

Dominic Dicoy, the other witness for appellant, testified on how Donald Pilay wrestled with four NARCOM agents on
April 7, 1993 prior to his arrest. He corroborated the testimonies of the arresting officers regarding the search
conducted on the residence of Irene Martin.

On January 4, 1994, the trial court rendered the Decision disposing of Criminal Case No. 11231-R as follows:

WHEREFORE, the Court Finds the accused Berly Fabro guilty beyond reasonable doubt of the
offense of Violation of Section 4 Article II of Republic Act No. 6425 as amended (Sale and/or
Delivery of Marijuana) as charged in the body of the Information, not its caption, and hereby
sentences her to Life Imprisonment and to pay a Fine of Twenty Thousand Pesos (P20,000.00)
without subsidiary imprisonment in case of Insolvency and to pay the costs. Sclaw

The marijuana confiscated from accused Berly Fabro (Exh. H) being the subject of the offense is
hereby ordered confiscated and forfeited in favor of the State and referred to the Dangerous Drugs
Board for immediate destruction.
 The accused Berly Fabro being a detention prisoner is entitled to be credited in the service of her
sentence 4/5 of her preventive imprisonment in accordance with Article 29 of the Revised Penal
Code.

For failure of the prosecution to prove his guilt beyond reasonable doubt, the accused Donald Pilay
is Acquitted of the offense charged in the Information with costs de oficio.

Let an alias warrant of arrest be issued against co-accused Irene Martin to be implemented by any
law enforcing agency in the country so that upon her arrest she shall have a separate arraignment
and trial of her own.

SO ORDERED.[32]

In this appeal, appellant assails her conviction on the ground that her guilt has not been proven beyond reasonable
doubt. She contends that the following circumstances create a doubt as to her culpability for the crime charged: (1)
Contrary to the allegation of the prosecution, the amount of the confiscated marijuana "weighed only 99.5 grams and
not one (1) kilo;" (2) The marked money allegedly used in the buy-bust operation was not recovered and presented
during the trial; and (3) Based on the testimony of the NBI, the real possessor of the confiscated properties was her
co-accused Irene Martin.

The grounds relied on by the appellant are clearly without merit. Sclex

Appellant posits that the amount of marijuana confiscated weighed only 99.5 grams.

Appellant relies on the testimony of Forensic Chemist Alma Margarita Villaseor where she referred to the confiscated
marijuana as weighing 99.5 grams:[33]

q Could you remember madame witness if your predecessor Sr. Inspector Lalaine Ong conducted
her own examination of this item?

a It states on the chemical report that she conducted the examination?

q And how many grams of this item did she use of the examination (sic)?

a I did not see the representative sample.

q But when you received the item, how much did it weight?

a 99.5.

q So it must be lesser now? xlaw

a Yes, sir.[34]

However, it should be noted that in her written report Villaseor indicated that the specimen had a "total of 999.5
grams of dried suspected marijuana fruiting tops."[35]

As between a writing or document made contemporaneously with a transaction in which are evidenced facts pertinent
to an issue, when admitted as proof of these facts, is ordinarily regarded as more reliable proof and of greater
probative value than oral testimony of a witness as to such facts based upon memory and recollection. The reason
behind this is obvious, human memory is fallible and its force diminishes with the lapse of time. [36] Hence, as between
Villaseors testimony and her written report, the latter is considered as the more accurate account as to the amount of
marijuana examined.
Moreover, the initial Chemistry Report conducted by Forensic Chemist Lalaine Ong Rodrigo on April 8, 1993, a day
after its confiscation, recorded that the specimen submitted for laboratory examination was "one (1) kilo of suspected
dried fruiting tops."[37]xsc

This Court is convinced that despite Villaseors testimony that the marijuana weighed 99.5 grams, there is
overwhelming documentary and testimonial evidence, as correctly appreciated by the trial court, pointing to the fact
that the contraband weighed one (1) kilo when it was seized.

The prosecutions failure to present the marked money used in buying marijuana from appellant did not cause a dent
on the prosecutions case. Such failure was on account of Irene Martins flight after taking the money used in the sale.
It must be stressed, however, that failure to present the marked money is of no great consequence. The Dangerous
Drugs Law punishes the mere act of delivery of prohibited drugs after the offer to buy by the entrapping officer has
been accepted by the prohibited drug seller.[38] Rather, of importance are the facts that the prohibited drug given or
delivered by the accused was presented before the court and that the accused was clearly identified as the offender
by the prosecution eyewitness.[39] Stated differently, the buy-bust money is not indispensable to the conviction of an
accused provided that the prosecution has adequately proven the sale of the dangerous drug. [40]Sc

Appellants contention that Irene Martin was the real culprit being the source of the contraband does not in any way
absolve her of the crime of selling marijuana. While it is true that it was Irene Martin who took the money, appellant
was the one who negotiated with the poseur-buyers; fetched her co-accused; carried and handed over the marijuana
to Apduhan. The acts of Martin and appellant clearly show a unity of purpose in the consummation of the sale of
marijuana. In other words, between Martin and appellant, conspiracy in the commission of the crime was indubitably
proven by the prosecution.

A final note. The information denotes the crime as a "VIOLATION OF SECTION 21 (b) ART. IV IN RELATION TO
SECTION 4/ARTICLE II OF REPUBLIC ACT 6425 AS AMENDED".[41] This is an erroneous designation of the crime
committed. Section 21 of R.A. 6425 reads:

Sec. 21. Attempt and Conspiracy. The same penalty prescribed by this Act for the commission of
the offense shall be imposed in case of any xxx conspiracy to commit the same in the following
cases: Scmis

xxx

b) Sale, administration, delivery, distribution and transportation of dangerous

drugs.

It is clear that Section 21 (b) of R.A. 6425 punishes the mere conspiracy to commit the offense of selling, delivering,
distributing and transporting of dangerous drugs. Conspiracy herein refers to the mere agreement to commit the said
acts and not the actual execution thereof. While the rule is that a mere conspiracy to commit a crime without doing
any overt act is not punishable, the exception is when such is specifically penalized by law, as in the case of Section
21 of Republic Act 6425. Conspiracy as crime should be distinguished from conspiracy as a manner of incurring
criminal liability the latter being applicable to the case at bar.

In any event, such error in the information is not fatal. The body of the information states that the crime for which the
petitioner is charged is as follows:

"the above-named accused, conspiring , confederating and mutually aiding one another, did there
willfully, unlawfully and feloniously sell and/or deliver to PO2 Elonito Apduhan, who acted as poseur
buyer, one (1) kilo of dried marijuana leaves..."

It has been our consistent ruling that what is controlling are the actual recital of facts in the body of the information
and not the caption or preamble of the crime.[42]

Having considered the assignments of error and finding no basis which, from any aspect of the case, would justify us
in interfering with the findings of the trial court, it results that the appealed decision must be AFFIRMED in toto.

SO ORDERED. Missc
Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-18792 February 28, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GUILLERMO BELLO, defendant-appellant.

Office of the Solicitor General for plaintiff-appellee.

Ferdinand E. Marcos for defendant-appellant.

REYES, J.B.L., J.:

Appeal from a judgment of the Court of First Instance of Quezon in its Criminal Case No. 592-G, for murder.

The information filed against the accused alleged four (4) aggravating circumstances, namely: treachery, evident
premeditation, nighttime, and superior strength. The trial court made a finding of "treachery, evident premeditation
and in cold blood and without any provocation"; however, the dispositive portion of the appealed decision states as
follows:
 ... the Court finds the accused Guillermo Bello guilty beyond reasonable doubt of the crime of murder
defined an punished by Article 248 of the Revised Penal Code with the aggravating circumstances of (1)
nighttime, (2) abuse of confidence and obvious ungratefulness, (3) superior strength offset only by his
surrender to the authorities and hereby sentence him to DIE by electrocution in the manner provided by law
ordering his heirs, after his death, to indemnify the heirs o the deceased Alicia Cervantes in the sum of
P3,000.00, wit costs.

The record bears out, the Office of the Solicitor General does not challenge, and the counsel de oficio agree with, and
adopts, the following findings of fact of the trial court:

From the evidence adduced at the hearing of the case, it has been established to the satisfaction of the
Court (1) that on September 17, 1954, the accused Guillermo Bello, a widower who at that time was about
54 years of age, took a young peasant lady named Alicia Cervantes, about 24 years old his common-law
wife; (2) that from that day they lived together apparently in blissful harmony as man and wife without the
benefit of marriage bearing, however, no child, ...; (3) that on May 15, 1958, the accused who had no means
of substantial livelihood except that of making "kaingin" and who apparently was then in financial straits
induced Alicia Cervantes to accept an employment as entertainer in a bar and restaurant establishment
known as Maring's Place situated the corner of Aguinaldo and Bonifacio Streets, Gumaca, Quezon (4) that
Alicia Cervantes entered the service of Maring's Place on that day as a public hostess; (5) that the accused
being infatuated with his young bride used to watch her movements in Maring's Place everyday; (6) that on
May 16 he saw Alicia enter the Gumaca theater in Gumaca with a man whom the accused found later was
caressing his common-law wife inside the movie house; (7) that being in love with her he took her out from
the movie and warned her to be more discreet in her personal conduct in Gumaca; (8) that Alicia Cervantes
continued to serve at Maring's Place as a public hostess; (9) that on May 20, 1958, at 3:00 p.m. the accused
went to Maring's Place to ask for some money from Alicia; (10) that Maring, the owner of the place, and
Alicia refused to give money, Maring telling him to forget Alicia completely because he was already an old
man, an invalid besides and should stop bothering Alicia; (11) that having failed to obtain financial
assistance from his paramour, accused left the place somewhat despondent and went home passing
Bonifacio Street; (12) that on his way home he met the brothers Justo Marasigan and Luis Marasigan who
greeted the accused, Luis saying to his brother Justo the following: "So this is the man whose wife is being
used by Maring for white slave trade"; (13) that these remarks of Luis Marasigan naturally brought grief to
the accused, to drown which he sought Paty's place in Gumaca where he drank 5 glasses of tuba; (14) that
from Paty's place he went to Realistic Studio which is in front of Maring's Place and from there watched the
movements of Alicia; (15) that at about 9:00 o'clock that night he entered Maring's Place and without much
ado held Alicia from behind with his left hand in the manner of a boa strangulating its prey and with his right
hand stabbed Alicia several times with a balisong; (16) that seeing Alicia fallen on the ground and believing
her to be mortally wounded, he fled and went to the municipal building and there surrendered himself to the
police of Gumaca.

Both the prosecution and the defense also agree that the crime committed is not murder but only homicide, but they
disagree in the qualifying or aggravating and mitigating circumstances. The prosecution holds that the crime is
homicide, aggravated by abuse of superior strength, but offset by voluntary surrender. On the other hand, the
defense maintains that the accused is entitled to the additional mitigating circumstance of passion and obfuscation.
The trial court held a different conclusion, as earlier stated.

While it cannot be denied that Alicia was stabbed at the back, the wound was but a part and continuation of the
aggression. The four (4) stab wounds (the 3 others were in the breast, hypogastric region, and in the left wrist as
shown in the certificate of the Municipal Health Officer) were inflicted indiscriminately, without regard as to which
portion of her body was the subject of attack. The trial court itself found that the stab in the back was inflicted as Alicia
was running away. For this reason, treachery cannot be imputed (People v. Cañete, 44 Phil. 478).

Evident premeditation was, likewise, not established. The accused had been carrying a balisong with him for a long
time as a precaution against drunkards, and without any present plan or intent to use it against his common-law wife.
That he watched her movements daily manifest his jealous character, but there is no evidence that from this jealousy
sprouted a plan to snuff out her life.1äwphï1.ñët

The evidence does not show, either, any superior strength on the part of the accused, and, not possessing it, he
could not take advantage of it. True that he was armed with a balisong, but he was old and baldado (invalid), while
Alicia was in the prime of her youth, and not infirm. The facts are not sufficient to draw a comparison of their relative
strength. Possession of a balisong gives an aggressor a formidable advantage over the unarmed victim, but the
physique of the aggressor ought also to be considered. At any rate, taking into account the emotional excitement of
the accused, it is not clearly shown that there was "intencion deliberada de prevalerse de la superioridad o
aprovecharse intencionadamente de la misma" (Sent. TS. 5 Oct. 1906), i.e., deliberate intent to take advantage of
superior strength.

The crime was committed at nighttime, but the accused did not seek or take advantage of it the better to accomplish
his purpose. In fact, Maring's Place was bright and well-lighted; hence, the circumstance did not aggravate the crime.
(U.S. vs. Ramos, et al., 2 Phil. 434; U.S. vs. Bonete, 40 Phil. 958.)

We can not understand how the trial court came to couple the crime with the aggravating circumstance of abuse of
confidence and obvious ungratefulness. There is nothing to show that the assailant and his common-law wife
reposed in one another any special confidence that could be abused, or any gratitude owed by one to the other that
ought to be respected, and which would bear any relation, or connection, with the crime committed. None is inferable
from the fact that the accused was much older than his victim, or that he was penniless while she was able to earn a
living and occasionally gave him money, since both lived together as husband and wife. Neither is it shown that the
accused took advantage of any such special confidence in order to carry out the crime.

Since the aggravating circumstances of treachery, evident premeditation, and abuse of superior strength, which could
have qualified the crime as murder, were not present, and since the generic aggravating circumstances of nighttime
and abuse of confidence and obvious ungratefulness have not been established, the accused can only be liable for
homicide.

Both defense and prosecution agree that the accused-appellant is entitled to the benefit of the mitigating
circumstances of voluntary surrender to the authorities. The remaining area of conflict is reduced to whether the
accused may lay claim to a second mitigating circumstance, that of having acted on a provocation sufficiently strong
to cause passion and obfuscation. The defense submits that accused is so entitled, because the deceased's flat
rejection of petitioner's entreaties for her to quit her calling as a hostess and return to their former relation, aggravated
by her sneering statement that the accused was penniless and invalid (baldado), provoked the appellant, as he
testified, into losing his head and stabbing the deceased. The state disputes the claim primarily on the strength of the
rule that passion and obfuscation can not be considered when "arising from vicious, unworthy, and immoral passions"
(U.S. vs. Hicks, 14 Phil. 217).

We are inclined to agree with the defense, having due regard to the circumstances disclosed by the record. It will be
recalled that the lower court found that the accused had previously reproved the deceased for allowing herself to be
caressed by a stranger. Her loose conduct was forcibly driven home to the accused by Marasigan's remark on the
very day of the crime that the accused was the husband "whose wife was being used by Maring for purposes of
prostitution," a remark that so deeply wounded the appellant's feelings that he was driven to consume a large amount
of wine (tuba) before visiting Alicia (the deceased) to plead with her to leave her work. Alicia's insulting refusal to
renew her liaison with the accused, therefore, was not motivated by any desire to lead a chaste life henceforth, but
showed her determination to pursue a lucrative profession that permitted her to distribute her favors indiscriminately.
We can not see how the accused's insistence that she live with him again, and his rage at her rejection of the
proposal, can be properly qualified as arising from immoral and unworthy passions. Even without benefit of wedlock,
a monogamous liaison appears morally of a higher level than gainful promiscuity.

WHEREFORE, the appealed decision should be, and hereby is, modified. This Court finds the accused-appellant,
Guillermo Bello, guilty beyond reasonable doubt of the crime of homicide, attended by two (2) mitigating
circumstances: (a) passion and obfuscation, and (b) voluntary surrender, and, therefore, imposes upon him an
indeterminate sentence ranging from a minimum of six (6) years and one (1) day of prision mayor to a maximum of
ten (10) years of prision mayor; orders him also to personally indemnify the heirs of Alicia Cervantes in the amount of
P6,000.00, and to pay the costs. So ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Paredes, Dizon, Regala and Makalintal, JJ.,
concur.

The Lawphil Project - Arellano Law Foundation

 SECOND DIVISION

[G.R. No. 127962. April 14, 2004]

KINGSTON(E) LI Y NUNEZ, petitioner, vs. PEOPLE OF THE PHILIPPINES, and the HONORABLE COURT OF
APPEALS, respondents.

DECISION
TINGA, J.:

On 19 April 1993, the relative early morning calm in General Luna Street, Barangay Bangkal, Makati, was
shattered when a petty argument evolved into a street brawl. After the dust had settled, eighteen (18) -year old
Christopher Arugay (Arugay) lay dying from multiple stab wounds, while his neighbor, twenty-four (24)-year old
Kingstone[1] Li (Li), staggered injured, with hack wounds on his head.
Li was charged before the Regional Trial Court (RTC) of Makati, Branch 148,[2] with the crime of Homicide.[3] On 5
January 1994, after trial, he was found guilty and sentenced to the penalty of eight (8) years and one (1) day of prision
mayor to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal. His conviction was affirmed by
the Court of Appeals Fifteenth Division in a Decision[4] dated 6 September 1996.
The version presented by the prosecution as to the antecedent facts leading to Arugays death differs sharply from
the version offered by Li. The accused claims that the dispute stemmed from a spurned offer to drink, while the
prosecution traces the root of the fight to an indecorous bath in public.
The story of the prosecution was told by the witnesses Aubrey dela Camara (dela Camara) and Ronaldo Tan
(Tan).[5]
Shortly before his death, Arugay was watching television at home with his sisters Cristy and Baby Jane, his
girlfriend dela Camara and Baby Janes boyfriend, Tan. At around 1:15 in the early morning, dela Camara and Tan
suddenly heard a noise outside. Peering through the window, they saw Li and a certain Eduardo Eddie Boy Sangalang
taking a bath completely naked.The two were facing the house of the Arugays.[6]
Enraged, Arugay yelled, Pare bastos kayo, bat kayo nakahubad?[7]
Li shouted back, Putang Ina! and threw something at the Arugays house. Sangalang also yelled, Putang Ina mo,
lumabas ka, papatayin kita![8]
An incensed Arugay went out the house where he was met by Li, now wearing briefs and carrying a baseball
bat. Li struck Arugay on the head with the bat, causing Arugay to fall. Li ran back to his house. Tan and dela Camara
assisted Arugay and were trying to drag him back to his house when Li re-emerged, this time with a knife. Li then
stabbed Arugay once.[9]
Immediately thereafter, dela Camara was confronted by Lis sister, Kristine, who proceeded to pull her hair and
slap her around. Kristine also wielded a bolo, with which she hacked dela Camara in the arm. Although preoccupied
under the circumstances, dela Camara was able to see Sangalang stab Arugay at least once, so she claimed. [10]
Tan saw Arugay run towards the street after he was stabbed, with Li and Sangalang chasing him. He saw nothing
further of the incident, according to him.[11]
In their respective testimonies, dela Camara and Tan are unable to account for the fact that before the fight ended,
Li also lay wounded with multiple hack wounds on his head and body.This fact lies at the crux of the petitioners defense.
On the other hand, Li presents a different version.
Li encountered Arugay out on the street on the night of 18 April 1993, a few hours before the brawl. Arugay was
carrying a bayong containing various liquors. He invited Li to a drinking session which the latter refused as he had work
the following day.[12]
Early the next morning, around one oclock a.m., Li was watching television at his home with his friend Ricky
Amerol when they heard objects being thrown at the house. Peeping through the window, they saw Arugay and dela
Camara in front of the gate throwing stones and bottles at the direction of Lis house. The stones broke window jalousies
and also struck Amerol. At the same time, Arugay was also hurling invectives at Li.[13]
Annoyed, Li opened the door asking, Pare, ano ba problema mo? Wala naman kaming kasalanan sa yo. Arugay
and his girlfriend just kept on stoning the house and hurling invectives at petitioner. Arugay kicked the gate but Li
prevented him from opening it. Arugay then ran towards his house across the street.[14]
Li tried to fix the gate, which had become misaligned and its lock destroyed as a result of the kicking. Reacting,
he saw Arugay coming out of the house armed with two kitchen knives.In response, Li went inside his house and got a
baseball bat. When he returned to the street, Arugay attacked him with a knife. Li managed to avoid Arugays thrusts
and hit Arugay with the baseball bat on the right shoulder. Arugay ran back to his house shouting, The long one! The
long one! Li also dashed back to his house but before he was able to enter the door, he saw Arugay carrying a two-
foot long bolo, running towards him. On Arugays heels were Ronaldo Tan and Aubrey dela Camara. [15]
 Arugay tried to hit Li with the bolo. Li raised his right hand to protect himself but Arugay was able to hit him on his
right temple and right wrist. Not content, Arugay hit Li on the right shoulder. Li passed out.[16]
Upon regaining consciousness, Li tried to crawl back to his house but Ronald Tan hit him at the back of his left
ear with a baseball bat. Eventually, Li managed to get back to the house and was brought to
the Makati Medical Center by Amerol and Barangay Tanod Eduardo Reyes.[17]
On cross-examination, Li admitted that Eduardo Sangalang was also in his house at the time the incident started.
Sangalang was the boyfriend of Lis half-sister, Cristy.[18]
Dr. Alberto Reyes of the Medico Legal Section of the National Bureau of Investigation conducted the post-mortem
examination on the body of Arugay. He noted the following injuries:

Pallor, lips and nailbeds.

Contusion, arm, right, poster-lateral, 5.0 x 3.0 cm.

Wounds, incised, scalp, parieto-occipital, right, 6.0 cm.; anterior sheet, left side, suprammary 6.0 cm., inframmary
4.0 cm.

Wounds stab:

1. 3.0 cm., long, spindle[-]shaped edges, irregular, oriented, horizontally, with a sharp, medial and a blunt lateral
extremeties, located at the anterior chest wall, left side, 15.0 cm. from the anterior median line, directed
upwards, backwards and medially, involving the skin and soft tissues only with an approximate depth of 4.0 cm.

2. 4.0 cm., long, spindle shaped edges irregular, with a sharp inferolateral and blunt supero-medial extremeties,
located at the anterior abdominal wall, right side, 0.5 cm. from the anterior median line, directed upwards ,
backwards and medially involving the skin and soft tissues, laceration of the diaphragm and the right lobe of the
liver, with an approximate depth of 10.0 cm.

3. 1.5 cm. long, spindle shape[d] edges irregular oriented almost horizontally with a sharp lateral and blunt medial
extremeties, located at the anterior abdominal wall, left side, 9.0 cm. from the anterior median line, directed
backwards, upwards and medially involving the skin and soft tissues, penetrating the transverse colon with an
approximate depth of 12.0 cm.

4. 1.5 cm. long, spindle, edges irregular oriented almost horizontally with a sharp poster-lateral a blunt antero medial
extremities located at the anterior chest wall right side, 21.0 cm. from the anterior median line, directed
backward, upwards and medially involving the skin and soft tissues penetrating the 8 th intercostals space, into
the diaphragm and right lobe of the liver, with an approximate depth of 12.0 cm.

Hemoperitoneum 1,500 c.c.

Brain and other visceral organs, pale.

Stomach, half-full with rice and brownish fluid.

Cause of death stab wounds of the chest and abdomen.[19]

After trial on the merits, the RTC rendered its Decision, finding Li guilty as charged. The dispositive portion reads:

WHEREFORE, premises considered, and finding accused KINGSTONE LI guilty beyond reasonable doubt of the crime of
Homicide defined and penalized under Article 249 of the Revised Penal Code, said accused is hereby sentenced to suffer the
penalty of from EIGHT (8) YEARS and ONE (1) day of prision mayor as minimum to FOURTEEN (14) years, EIGHT (8)
MONTHS and ONE (1) DAY of reclusion temporal as maximum with all the accessories of the law.

The accused is further ordered to pay to the heirs of the late Christopher Arugay the sum of P50,000.00 for and as indemnity for
causing the death of said victim.
With costs against the accused.

SO ORDERED.[20]

Li appealed to the Court of Appeals but it affirmed with modification the RTC Decision. He filed a Motion for
Reconsideration which the Court of Appeals denied.[21]
Li filed the present Petition for Review, seeking the reversal of his conviction for the crime of homicide.
Li denies killing Arugay. He contends that the RTC erred in holding that he was the instigator of the events leading
to Arugays death; in not basing its Decision on the evidence on record; in holding that he was guilty of homicide by
reason of conspiracy; and in not ruling that the evidence of the prosecution does not prove his guilt beyond reasonable
doubt.[22]
There is a difference in the factual findings of the RTC and those of the Court of Appeals. The variance warrants
the close review of the findings of the two courts. While both courts argue that Li was guilty of homicide, their respective
rationales are different.
Neither court disputes that the proximate cause of the death of Arugay was the stab wounds he received. The
RTC concluded though that it was Sangalang, and not Li, who stabbed Arugay:

From all these conflicting versions, this court after piecing out the evidence presented and from what can be deduced in the
circumstances obtaining finds that because of the altercation between Christopher Arugay and Kingstone Li, Christopher Arugay
armed himself with a bolo and Kingstone Li armed himself with a baseball bat.

From the evidence presented, it became clear to the court that it was Kingstone Li who hit first with a baseball bat Christopher
Arugay hitting the latter not on the head but at the right arm which is near the shoulder. [23]

xxx

Now, after Kingstone Li has hit the deceased with a baseball bat, the deceased who is armed with a bolo, retaliated by hacking
Kingstone Li on the head and indeed he was hit on the head and right wrist causing Kingstone Li to lose his hold on the baseball
bat and fell (sic) semi-unconscious or unconscious.

At this point in time, Eduardo Sangalang, who was then also present stabbed the deceased several times at least six times.

This is explained by the findings of Dr. Alberto Reyes that Christopher Arugay sustained an incise[d] wound on scalp, on the left
chest, and four stab wounds that are fatal.

When Christopher Arugay sustained the fatal wounds, two (2) of them piercing his liver xxx [24]

While the RTC concluded that Li had not stabbed Arugay, it nevertheless held him guilty, predicated on a finding of
conspiracy with Sangalang. This issue shall be explored in greater detail later.
In contrast, the Court of Appeals did not rule out the possibility that Li had stabbed Arugay, and rendered
unnecessary a finding of conspiracy to attach guilt to the accused. It held:

The deceased suffered four fatal wounds, then (sic) the accused might have inflicted at least one fatal stab wound and so with
his friend Eddie Boy, who remains at large. Since it has not been established which wound was inflicted by either one of them,
they should both be held liable and each one is guilty of homicide, whether or not a conspiracy exists.[25] (Emphasis supplied)

The appellate courts formulation is wrong as the converse is the correct rule: with the existence of conspiracy, it
is no longer necessary to determine who among the malefactors rendered the fatal blow; [26] whereas in the absence of
conspiracy, each of the accused is responsible only for the consequences of his own acts.[27] Thus, it is necessary to
determine whether a conspiracy existed between Li and Sangalang, and if there was none, to ascertain the particular
acts performed by Li.
The Court of Appeals also cited the testimonies of the prosecution witnesses, Tan and dela Camara, to the effect
that they saw Li stab Arugay at the left portion of the body. [28] These testimonies are vital as they constitute the only
evidence that Li actually stabbed Arugay. A careful examination of the case however cautions us from giving full faith
and credence to the supposed eyewitnesses for the prosecution. The RTC itself cast doubt on the veracity of all the
eyewitness testimony, whether for the prosecution or for the accused. The RTC noted, thus:

At the outset, the court has to state that it has noted that the witnesses for the prosecution and that of the defense either held back
on material facts or have deliberately withheld some facts or added some matters to the real facts for these are not only gaps but
holes in the versions of the witnesses for the prosecution and the defense. What this court can do is to cull from the evidence
presented what could be the approximate or near the truth. The prosecution did not help this court any to have a good view of the
facts and neither the defense.[29]

The relationships of the witnesses dela Camara and Tan to Arugay or the latters family cannot be easily
discounted. Dela Camara was the boyfriend of Arugay, while Tan was the boyfriend of Arugays sister, Baby Jane. As
such, they are not wholly neutral or disinterested witnesses. Both of them actually asserted in open court that they were
not willing to say anything derogatory against Arugay. Tan testified as follows:
Q: Since Jane Arugay is your girlfriend, and Christopher Arugay was your friend, you did not like to say
anything derogatory against Christopher Arugay, did you?
A: Yes, maam.
Q: Neither did you want to say anything also derogatory against the family of Christopher Arugay, did you?
A: Yes, maam.[30]
Similarly, dela Camara testified as follows:
Q: As the girlfriend of Christopher Arugay, you did not say anything derogatory [about] the said Christopher
Arugay, am I correct?
A: Yes, maam.
Q: You do not like to besmirch his memory, am I correct?
A: Yes, maam.
Q: So that if Christopher Arugay assaulted Kingstone Li on April 19, 1993, you did not like this, do you know
that, did you Ms. Dela Camara.
A: Yes, maam.[31]
The revelations serve caution against accepting the testimonies of Tan and dela Camara as gospel truth. They
cast doubt as to whether these witnesses would be capable to attest to an unbiased narration of facts, especially if by
doing so, they would be forced to impute culpability on Arugay, thereby staining the sainted memory of their deceased
friend.
Moreover, the respective testimonies of dela Camara and Tan are inconsistent with each other with respect to
material points. Dela Camara claimed that she and Tan together assisted Arugay after the latter had been struck down
with the baseball bat.[32] Yet while Tan admitted that he had pulled Arugay away from the scene of the melee, he made
no mention of the assistance of dela Camara.[33] In fact, Tan stated that dela Camara remained inside the house. [34] This
assertion contradicts dela Camaras claim that she was outside the house during the whole time the incident
transpired.[35] Nor did Tan advert to the scene painted by dela Camara of Kristine Li wielding a bolo while pulling on the
hair of Arugays girlfriend. That is an unusual enough occurrence that would stick to the mind of anybody who would
witness such.
Indeed, the tale weaved by Tan arouses more curiousity upon examination of his sworn statement, executed the
night after the incident. Therein, Tan referred to some existing bad blood between Arugay and Li over a borrowed tape,
a fact which subsequently none of the parties would call attention to. [36] Curioser, Tan never mentioned any baseball
bat having been used by Li during the incident. Nor did he mention any participation of Sangalang in the actual brawl. On
the other hand, dela Camara in her own sworn statement, asserted that both Li and Sangalang had stabbed Arugay
and that she herself was hacked on the arm by Kristine Li. [37]
Both Tan and dela Camara testified that Li stabbed Arugay on the left side of the body as the latter was being
pulled towards his house after having been struck with the baseball bat. [38]However, Tan testified that Li came from
behind Arugay to inflict the stab wound,[39] while dela Camara stated that Arugay was facing Li when he was stabbed. [40]
Most importantly, the testimonies of dela Camara and Tan both contradict the physical evidence. As consistently
held:
Time and again, we have upheld the primacy of physical evidence over biased and uncorroborated testimony of witnesses. We
have held:

Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in our hierarchy of trustworthy evidence. In
criminal cases such as murder or rape where the accused stands to lose his liberty if found guilty, this Court has, in many
occasions, relied principally upon physical evidence in ascertaining the truth[W]here the physical evidence on record ran counter
to the testimonial evidence of the prosecution witnesses, we ruled that the physical evidence should prevail.[41]

It is undisputed that Li had armed himself with a baseball bat as he prepared to face Arugay. It also appears that
the baseball bat remained at the scene of the fight, as the same weapon was used to strike Li on the head after he lay
injured.[42] In order to sustain the claim of Tan and dela Camara that Li had stabbed Arugay, we would have to postulate
that Li was armed with both a knife and a baseball bat. This scenario is severely flawed.
First. Tan and dela Camara would have us believe that Li faced off Arugay with a baseball bat, then after having
struck Arugay, he ran off to his home to get a knife, returned to the melee, then stabbed Arugay. [43] This projected
sequence is simply incredulous. Li was already armed with a weapon that could incapacitate or kill. He had already
struck a blow that apparently forced the victim down. There is no logical reason for Li to suddenly run off to get a knife,
considering he already had a weapon capable of inflicting damage and was at an advantageous position vis--vis the
prostrate Arugay.
There is of course the possibility that Li was already carrying the knife when he emerged with the baseball bat,
but that was not established by the prosecution. Moreover, the scenario of Li brandishing a knife with one hand and
wielding a bat with the other is highly improbable. It would require unusual physical dexterity for a person to wield both
weapons simultaneously and still utilize them with adequate proficiency. Nor is it likely that Li concealed the knife in his
clothing. According to Tan, Li was only wearing briefs when he attacked Arugay with the baseball bat. [44]
Second. The pathological findings likewise cast severe doubt on the possibility that Li had stabbed Arugay. The
trial court concluded that only one knife was used in killing Arugay, and probably only one wielder thereof. The RTC
decision said:

The court noted also with particular interest the description of the four wounds as found by Dr. Reyes. The first wound has been
described by Dr. Reyes as 3.0 cm. long, spindle[-]shaped edges, irregular, etc; the No. 2 wound has also been described as 4.0
cm. long, spindle[-] shaped, edges irregular, etc.; No. 3 wound is 1.5 cm. long, spindle-shaped, edges, irregular, etc.; and the
fourth wound is 1.5 cm. long, spindle shaped edges irregular;

Thus there are two (2) outstanding characteristics of the four (4) stab wounds sustained by Christopher Arugay. All of them are
spindle[-]shaped and irregular in their edges. This is significant because it would appear to the court that only one weapon was
used because all the characteristics of the four wounds were the same. Thus, to the mind of the court there is only one person who
inflicted these wounds, not two (2) or three (3). It could be possible that there were two who inflicted the stab wound[s] if the
weapon used was given to another after using the same and the other one to whom it was transferred used it also. But in this case
there is no showing that such incident did happen.[45]

It must be qualified that Dr. Reyes, the NBI Medico-Legal, refused to definitively conclude that only one knife was
used in stabbing Arugay though he conceded that such was possible. [46] Nevertheless, the fact that Arugay sustained
the same kind of stab wounds tends to support the conclusion that only one knife was used on him.
Third. Dela Camara testified that she saw both Li and Sangalang stab Arugay. Considering that there was only
one knife used, her version would hold water only if we were to assume that the same knife passed from the hands of
Li to Sangalang or that they held identical or similar knives. As the RTC ruled, nothing of the sort was established. The
more logical assumption would be that there was only one stabber using one knife. The question now arises, was it Li
or Sangalang who stabbed Arugay?
There is the dubious claim of Tan and dela Camara that they did see Li stab Arugay once. Assuming this were
true, this blow would not have been the fatal stab wound, as it did not prevent Arugay from further participating in the
rumble and, as subsequently established, inflicting damaging blows on Li. However, the physical evidence belies any
conclusion that Li inflicted any of the several fatal wounds on Arugay.
Dr. Pedro P. Solis, the medico-legal consultant of Makati Medical Center who also happens to be one of the
countrys leading experts in Legal Medicine[47], examined Lis injuries on the same day of the incident, and subsequently
testified on his findings. He concluded that Li suffered three types of wounds on his body. The first type consisted of
abrasions, consistent with forcible contact accompanied by a hard object. The two other types of injuries were
considerably more serious: incised wounds and a contusion. As found by the RTC:
According to (sic) Dr. Pedro Solis, who examined the accused at the Makati Medical Center on the very night after the incident
and (sic) found the following injuries on Kingstone Li, to wit:

1. xxx

2. Wound, incised, 12 cm., scalp, fronto-parietal area, right, 9 cm., right; 9 cm. posterior aspect, shoulder, right; 1.5
cm., postero-medial aspect, distal third, forearm, right.

3. Contusion, 4 x 5 cm., scalp, parieto-occipital area (post suricular) left.

From the expert testimony and opinion of Dr. Pedro Solis, the injuries suffered by Kingstone Li were defense wounds, and that
there were two (2) weapons used in inflicting injuries on Kingstone Li. One is a sharp edge[d] instrument such as a bolo and the
other one is [a] blunt instrument.[48]

The physical evidence of Lis injuries are consistent with his version that Arugay had hacked him, and as he
struggled to recover from the blow, he was struck with his own baseball bat by Tan, thus explaining the contusion on
his head. More importantly though, the injuries were serious enough to incapacitate Li at the scene, calling into question
his ability to inflict the fatal blows on Arugay. As Dr. Solis testified:
A: [I] noticed in this particular case that there are incise[d] wound[s] on the right hand and right shoulder.
These are injuries brought about, as I said, brought about by [a] sharp edged instrument. This I
presumed to have been brought about by the inherent self defensive (sic) mechanism of the victim. In
so far as the injury on the head is concerned, it must be a hit, now, I am referring to the incise wound
on the head, incise[d] wound on the head will also cause pressure on the skull thereby producing some
effect on the brain, this has been aggravated by a blunt instrument applied on the left side of his neck
and joining as together the two injuries the incise[d] wounds and that of contusion which is brought
about by blunt instrument it might have cause[d] him some degree of loss of consciousness.
Q: Would that person have been able to stab somebody one time, two times, three times or four times after
sustaining those injuries?
A: In that condition he has no complete power to perform volitional acts because he must have lost partially
or totally his consciousness primarily the hit on the left side of the head because the brain is a vital
organ and slight jarring will cause los[s] of consciousness and what we call in ordinary parlance, you
saw shooting stars as a consequence.
Q: Aside from los[s] of consciousness, would that person who sustained that injury have been able to walk
without the assistance of anybody?
A: In all [likelihood], he might have lost I said of his volitional movement, he [may be] able to walk but as I
have observe[d] it must be with assistance more particularly in this case whereby the incise wound on
the head is measured 12 cm., the head is a bloody organ in a way that if a person is erect, blood will
flow on that area and it might cause even modification of his visual perception. [49]

Li was slashed on the head with a bolo, causing a twelve centimeter (12 cm.)wound, among other wounds. In
such a condition, it is highly improbable that he was capable of inflicting the fatal stab wounds on Arugay. Moreover, it
could not be established that Li was ever armed with a knife. Difficult as it is already to believe that the wounded Li
could have stabbed Arugay several times, the incredulity is compounded by imagining that Li would have also groped
around for a knife, dazed and severely wounded as he was. Simply put, Li could not have stabbed Arugay. The
assertions to the contrary of Tan and dela Camara are inherently flawed.
Fourth. In all, the factual determination made by the RTC is wholly believable up to a point. There were four
participants in the brawl, namely Li, Sangalang, Arugay and Tan. The first blow was struck by Li, who had armed himself
with a baseball bat and used the same to hit Arugay on the left upper arm. This unprovoked assault by Li establishes
at least some degree of criminal culpability on his part. Arugay then armed himself with a bolo which he used to inflict
an incised wound on the head of Li. After Li had fallen, Sangalang, himself armed with a knife, fatally stabbed Arugay
at least four times. Tan had picked up the baseball bat dropped by the wounded Li and struck Li on the head with the
bat. These findings are consistent with the physical evidence, reliance on which should be given greater primacy over
the unreliable eyewitness testimony of Tan and dela Camara.
Thus, Sangalang alone had stabbed Christopher Arugay. Yet the RTC still found Li guilty on the tenuous
determination that a conspiracy between Li and Sangalang existed. The RTC held:
From the evidence presented, the court believes and it so holds that there was conspiracy.

It must be pointed out that Kingstone Li and Eduardo Sangalang were then in the same house at the same time. Eduardo
Sangalang is the boyfriend of the half-sister of Kingtone Li.

The act of Kingstone Li [in] getting a baseball bat and using it as a weapon and the act of Eduardo Sangalang alias Eddie
Boy in arming himself with a sharp pointed weapon and both going out to meet Christopher Arugay whose only sin is to
point to the accused his scandalous and indecent act in bathing nude not in the bathroom but in a place which is crowded
by people who can see him especially the ladies and is provocative to others are patent and conclusive presumption of
conspiracy for their acts were concerted and so close to each other that there is no way but to conclude a
conspiracy.[50] (Emphasis not ours)

Proving conspiracy is a dicey matter, especially difficult in cases such as the present wherein the criminal acts
arose spontaneously, as opposed to instances wherein the participants would have the opportunity to orchestrate a
more deliberate plan. Spontaneity alone does not preclude the establishment of conspiracy, which after all, can be
consummated in a moments notice through a single word of assent to a proposal or an unambiguous handshake. Yet
it is more difficult to presume conspiracy in extemporaneous outbursts of violence; hence, the demand that it be
established by positive evidence. A conviction premised on a finding of conspiracy must be founded on facts, not on
mere inferences and presumption.[51]
It is worth noting that while conspiracy was alleged in the Information against Li, the prosecution devoted its efforts
to prove that Li had actually inflicted the stab wounds on Sangalang, tagging him as a direct participant in the
crime. Thus, there seems to be no evidence that would directly establish the fact that Li and Sangalang had come into
an agreement to commit a common felony. Any conclusion that there was a conspiracy will have to be drawn
inferentially, as the RTC did.
It is not necessary to prove a previous agreement to commit a crime if there is proof that the malefactors have
acted in concert and in pursuance of the common objectives. Direct proof is not essential to show conspiracy since it
is by its nature often planned in utmost secrecy and it can seldom be proved by direct evidence. [52] Conspiracy may be
inferred from the acts of the accused themselves when such point to a joint purpose and design. [53] Complicity may be
determined by concert of action at the moment of consummating the crime and the form and manner in which assistance
is rendered to the person inflicting the fatal wound. [54]
However, caution dictates a careful examination of the established facts before concluding, as the RTC did, that
an implied conspiracy had been established. An implied conspiracy must still be based on facts established by positive
and conclusive evidence.[55] Even if conspiracy per se is not criminal, as it rarely is in this jurisdiction,[56] the weight of
factual evidence necessary to prove conspiracy is the same as required to establish criminal liability proof beyond
reasonable doubt.[57] Suppositions based on mere presumptions and not on solid facts do not constitute proof beyond
reasonable doubt.[58]
The RTCs conclusion that there was a conspiracy was drawn from these circumstances, namely: that Li and
Sangalang were in the same house at the same time; and that they both armed themselves before going out to meet
Arugay. The fact that they were in the same house at the same time is not in itself sufficient to establish
conspiracy. Conspiracy transcends companionship,[59] and mere presence at the scene of the crime does not in itself
amount to conspiracy.[60]
The other circumstance that Li and Sangalang had emerged from Lis house, both armed, to face Arugay has to
be weighed against other facts also relied upon by the RTC. As the RTC held, Sangalang stabbed Arugay only after
petitioner had become unconscious. Before that point, even as Li struck Arugay with a baseball bat, it was not proven
that Li had asked for, or received, any assistance from Sangalang. Based on these circumstances, the Court is hard
put to conclude that Sangalang and Li had acted in concert to commit the offense. In fact, the stabbing of Arugay could
very well be construed as a spur-of-the-moment reaction by Sangalang upon seeing that his friend Li was struck on the
head by Arugay. From such a spontaneous reaction, a finding of conspiracy cannot arise. [61]
Moreover, it appears that the fight involved two distinct phases. The first phase commenced when Li, without
sufficient provocation, assaulted Arugay with the baseball bat. Lis participation in this phase, albeit as a solitary actor,
was indubitably established. Sangalangs participation, much less his physical presence during this phase, was not
established at all. In the second phase, Sangalang was the main actor. Li was incapacitated by then. Clearly, the
existence of conspiracy should be ruled out.
After Arugay had been struck down, it appears that there would have been a lapse of at least a few minutes,
affording him time to procure the bolo. The second phase in the brawl then commenced. No further blows appear to
have been inflicted by Li. On the other hand, Li himself became the victim of the hack wounds on the head inflicted by
Arugay. As Li lay incapacitated, possibly unconscious, it remained highly doubtful whether he had any further
participation in the brawl. At that point, Sangalang, whose previous participation was not conclusively established,
emerged into the fray. Sangalang stabbed Arugay to death. Verily, it cannot be assumed that Sangalang did what he
did with the knowledge or assent of Li, much more in coordination with each other.
The scenario as established by the RTC still leaves many open-ended questions and admits to a myriad of
possibilities. This very uncertainty indicates that Lis liability as a conspirator was not established beyond reasonable
doubt. The general principle in criminal law is that all doubts should be resolved in favor of the accused. Consequently,
when confronted with variant though equally plausible versions of events, the version that is in accord with the acquittal
or the least liability of the accused should be favored.
The only injury attributable to Li is the contusion on the victims right arm that resulted from Li striking Arugay with
a baseball bat. In view of the victims supervening death from injuries which cannot be attributed to Li beyond reasonable
doubt, the effects of the contusion caused by Li are not mortal or at least lie entirely in the realm of speculation. When
there is no evidence of actual incapacity of the offended party for labor or of the required medical attendance, the
offense is only slight physical injuries, penalized as follows:

Art. 266. Slight physical injuries and maltreatment. The crime of slight physical injuries shall be punished:

2. By aresto menor or a fine not exceeding 200 pesos and censure when the offender has caused physical injuries which do not
prevent the offended party from engaging in his habitual work nor require medical attendance; [62]

The duration of the penalty of arresto menor is from one day to thirty days.[63] The felony of slight physical injuries
is necessarily included in the homicide charge. Since the Information against Li states that among the means employed
to commit the felonious act was the use of the baseball bat, conviction on the lesser offense of slight physical injuries
is proper. There being no aggravating or mitigating circumstances established, the imposition of the penalty in its
medium period is warranted.[64] Li was convicted by the RTC on January 5, 1994. Having long served more than the
imposable penalty, Li is entitled to immediate release unless, of course, he is being lawfully detained for another cause.
What transpired during the dawn hours of 19 April 1993 was an artless, spontaneous street fight devoid of any
methodical plan for consummation. It arose not because of any long-standing grudge or an appreciable vindication of
honor, but because the actors were too quick to offense and impervious to reason. Yet, however senseless this
lethal imbroglio is, a judicious examination of the circumstances must be made to avoid leaps into hyperbole. Careful
scrutiny of the evidence reveals that the criminal culpability of Kingstone Li in the death of Christopher Arugay was not
established beyond reasonable doubt. Unfortunately, the person who is responsible for the death apparently remains
at large. Yet absent any clear showing of conspiracy, as in this case, Kingstone Li cannot answer for the crime of
Eduardo Sangalang.
WHEREFORE, the Decision of the Court of Appeals is MODIFIED. Petitioner Kingstone Li is ACQUITTED of the
charge of Homicide for lack of evidence beyond reasonable doubt.However, he is found GUILTY of the crime of SLIGHT
PHYSICAL INJURIES, as defined and punished by Article 266 of the Revised Penal Code, and accordingly sentenced
to suffer the penalty of arresto menor in the medium period of ten (10) to twenty (20) days. Considering that petitioner
has been incarcerated well-beyond the period of the penalty herein imposed, the Director of the Bureau of Prisons is
ordered to cause petitioners IMMEDIATE RELEASE, unless petitioner is being lawfully held for another cause, and to
INFORM this Court, within five (5) days from receipt of this Decision, of the compliance with such order.
SO ORDERED.
Puno, (Chairman), Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.
 SECOND DIVISION

[G.R. No. 139531. January 31, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REYNALDO BAGANO* alias Pugot a.k.a. REYNALDO
FRIOLO, and PABLITO CAETE, accused-appellants.
 DECISION
BELLOSILLO, J.:

This is an appeal from the Decision[1] of the Regional Trial Court of Cebu City, Crim. Case No. CBU-39045,
finding Reynaldo Bagano alias Pugot and Pablito Caete guilty of murder.
Reynaldo Bagano alias Pugot a.k.a. Reynaldo Friolo and Pablito Caete were charged with murder qualified by
conspiracy and aggravated by treachery and evident premeditation in an Information dated 3 July 1995.[2] Upon
arraignment, Reynaldo Bagano and Pablito Caete pleaded "not guilty." On 15 October 1997 the trial court convicted
both accused of murder for the killing of Jeremias Montecino and sentenced Reynaldo Bagano alias Pugot, a recidivist,
to reclusion perpetua, and Pablito Caete to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal to reclusion perpetua. They were further ordered solidarily to pay the heirs of Jerimias Montecino P50,000.00
as death compensation and P4,660.00 for burial expenses.
The court a quo rejected the defense of alibi and denial raised by accused Bagano and Caete on the basis of the
following findings: On 23 May 1995, about 3:00 o'clock in the morning, Jeremias Montecino and his
wife Merlinda Montecino were sleeping in their home in Sitio Wangyu, Alaska, Barangay Mambaling, Cebu City, when
they were awakened by someone repeatedly calling Jeremias' name. The call came from outside. Jeremias went to
the window to see who it was and thereafter left their room to go outside. Merlinda remained in their room, but peering
through the window she saw Pablito Canete suddenly embrace Jeremias as the latter was opening the
gate. Thereupon, Reynaldo Bagano with ice pick in hand stabbed Jeremias on the chest. Jeremias struggled to free
himself from Pablito Caete's clasp and ran, but Reynaldo Bagano gave chase. Upon hearing Merlinda's screams for
help[3] Reynaldo withdrew and fled with Pablito Canete following him. Merlinda rushed Jeremias to
the Cebu City Medical Center but he succumbed to severe hemorrhage secondary to the stab wound on the left side
of his chest. He died upon arrival at the hospital.
Accused-appellants Bagano and Caete now argue that their conviction was erroneous as the prosecution failed
to prove their guilt beyond reasonable doubt, grounded as it was on the testimony of Merlinda Montecino which they
claim was unreliable and incredible. They question her claim to have vividly seen the stabbing incident when she
admitted that the attack occurred at 3:00 oclock in the morning when it was still dark. Assuming that they were indeed
guilty of the killing of the victim, accused-appellants argue that they should only be convicted of homicide as the killing
was not attended by treachery that would qualify the offense to murder.
The arguments of the defense are bereft of merit. Without falter or vacillation, Merlinda Montecino narrated in
open court how accused-appellants attacked her husband; thus we have no reason to disbelieve her. Indeed, she
admitted that at 3:00 o'clock in the morning darkness enshrouded the vicinity; nonetheless their front yard was well-lit
by a mercury bulb on a lamp post across their house which adequately illumined the place that enabled her to clearly
identify the assailants,[4] particularly so that they were not strangers to Merlinda as they were friends of her husband
who frequented their home.[5] They were therefore easily recognizable to her even in shadows.
As the widow of the victim and lone witness to the crime, Merlinda Montecino would not impute the killing of her
husband on accused-appellants if she was not certain that they were his tormentors. She had no reason to. A witness'
relationship to a victim of a crime would even make his or her testimony more credible as it would be unnatural for a
relative who is interested in establishing the crime to accuse somebody other than the real culprit. [6]
Contrary to the claim of accused-appellants, treachery attended the killing of the victim. However, it is not because
the attack was made at an unholy hour, or the victim was roused from his sleep, or that accused-appellants were known
to the victim,[7] that we affirm the lower court's finding of treachery, but rather for the suddenness of the attack and the
fact that the victim was unarmed with no opportunity to defend himself from the aggression.
Section 16, Art. 14, of The Revised Penal Code provides that there is treachery when the offender commits any
of the crimes against person, 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. The elements of treachery are: (a) the employment of means of execution that gives the person attacked no
opportunity to defend himself or retaliate; and, (b) the deliberate and conscious adoption of the means of execution. The
law therefore stresses the manner of performance or accomplishment of the crime than any other factor. Circumstances
of time and relationship will not be of relative importance unless they aided or made easy the execution of the crime
and thus denied the victim the chance to defend himself. The fact that the attack was made at dawn and the victim who
was the friend of the malefactors had just awakened may have facilitated the commission of the crime although the
crime nonetheless may have been committed even without those circumstances. Treachery here was extant from the
act of accused-appellant Pablito Caete in locking the victim in a sudden embrace and giving his co-accused-appellant
Reynaldo Bagano full opportunity to stab their victim on his left chest. The suddenness and the method employed
by Caete completely deprived Jeremias of any chance to defend himself.
 As observed by Dr. Jesus Cerna, Police Medico-Legal Officer who conducted the autopsy[8] on the victim, the
latter did not sustain any defensive wound, which meant that it was possible that he was not able to defend himself
because somebody was holding his hands[9] or that the attack was so sudden. For this reason, we sustain the finding
of treachery by the trial court.
From the records it is clear that treachery attended the commission of the crime, but this alone should be
appreciated against accused-appellants. The aggravating circumstance of recidivism cannot be held against Balano as
it was not alleged in the Information.[10] Be that as it may, treachery can only be considered as a qualifying circumstance
that would affect the nature of the crime and not as a generic aggravating circumstance that would raise the penalty to
death.
Conspiracy is attendant in the commission of the crime. For conspiracy to exist, it is sufficient that at the time of
the commission of the offense the accused had the same purpose and were united in its execution. [11] Proof of an
actual planning of the perpetuation of the crime is not a condition precedent. From the mode and manner in which the
offense was perpetrated, and as can be inferred from their acts, it is evident that Bagano and Caete were one in their
intention to kill Jeremias Montecino. Hence, in accordance with the principle that in conspiracy the act of one is the act
of all, the fact that it was Bagano who delivered the fatal blow on Montecino and Caete's participation was limited to a
mere embrace is immaterial. Conspiracy bestows upon them equal liability; hence, they shall suffer the same fate for
their acts.
Article 248 of The Revised Penal Code prescribes the penalty of reclusion perpetua to death for the crime of
murder. Absent any mitigating or aggravating circumstance in the commission of the crime, the lower penalty
of reclusion perpetua shall be imposed.
WHEREFORE, the Decision of the court a quo of 15 October 1997 in Crim. Case No. CBU-39045, finding
accused-appellants Reynaldo Bagano alias Pugot a.k.a. Reynaldo Friolo and Pablito Caete guilty of murder is
AFFIRMED with the MODICATION that both accused-appellants shall suffer the penalty of reclusion perpetua. They
are also ordered, in addition to P50,000.00 as indemnity for death and P4,660.00 for burial expenses awarded by the
trial court, to pay jointly and severally the heirs of Jeremias Montecino P50,000.00 more for moral damages. Costs
against both accused-appellants.
SO ORDERED.
Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.
 SECOND DIVISION

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

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

DECISION
BELLOSILLO, J.:

SPO1 JOSE BANGCADO and PO3 CESAR BANISA appeal from the decision of the Regional Trial Court of
Baguio City convicting them of two (2) counts of murder and two (2) counts of frustrated murder, imposing upon them
the corresponding prison terms, and to pay damages plus costs. [2]
The facts: On 27 June 1993, at around 8:30 in the evening, Pacson Cogasi, Julio Clemente, Leandro Adawan
and Richard Lino were at the Skyview Restaurant, Magsaysay Avenue, Baguio City, drinking and listening to
folksongs. Moments later, a group of five (5) arrived and sat one table away from Pacson Cogasi and his friends. Among
the newcomers was a thin person wearing a blue long-sleeved jacket, later identified as SPO1 Jose Bangcado, and a
heavier one wearing a t-shirt and maong pants, later identified as PO3 Cesar Banisa. The rest of their group were not
identified.
At that time, members of the police force of Baguio City were conducting Operation Kapkap at the Skyview
Restaurant. They however exempted the table of PO3 Cesar Banisa as they knew him to be a fellow policeman.
At around 9:00 o'clock that evening, Cogasi and his friends left the restaurant to go home. They were residents
of La Trinidad, Benguet. As they went behind the restaurant where their Ford Fierra was parked, they noticed SPO1
Jose Bangcado and PO3 Cesar Banisa following them. Cogasi and his group recognized Bangcado and Banisa to be
customers at Skyview Restaurant. Bangcado and Banisa approached them. First, Banisa asked Richard Lino for a
light. Then Bangcado and Banisa asked the group if they were willing to be frisked. Since the two (2) police officers
were armed with handguns and smelled of liquor, the group agreed to be frisked. As Leandro Adawan stepped aside
to urinate, Bangcado slapped him and then asked the group where they came from. Their answer was, from Besao,
Mt. Province, except Clemente who said that he came from Balili, La Trinidad. Bangcado, with Banisa standing guard
behind him with a drawn gun, ordered Cogasi, Clemente, Adawan and Lino to form a line against the Ford Fierra facing
him in that order. Adawan was only one meter away from Bangcado. Lino and Cogasi were about 1-1/2 meters away,
while Clemente, four (4) meters away. Without any warning, Bangcado suddenly fired his gun in quick succession at
the four (4) persons lined up against the Ford Fierra. Cogasi saw Adawan and Lino fall down. Cogasi then felt he was
hit on the left side of his neck and he also fell down. He managed however to crawl away and run to the Hilltop where
he was able to ask for help before falling unconscious.
Cogasi woke up to find himself confined at the Baguio General Hospital together with Clemente. There Cogasi
learned that Lino and Adawan died from gunshot wounds in their heads.Cogasi himself suffered a gunshot wound at
the neck, at the junction of his left jaw near the ear, while Clemente received two (2) gunshot wounds on his right
shoulder with one (1) of the bullets being lodged just below his right eye.
After their release from the hospital, Cogasi and Clemente filed a complaint with the NBI in Baguio City. On 8 July
1993, four (4) civilian males were presented to Cogasi for identification by the NBI, but he told them that the suspects
were not among those present. Clemente did not participate in the identification process because of his eye injury.
In the morning of 10 July 1993 Bangcado and Banisa reported for their regular rank inspection at the La Trinidad
Police Station. The policemen were told to remain in formation after the inspection. Cogasi went around the formation
four (4) or five (5) times before pointing to Bangcado and then to Banisa. Clemente also went around the formation but
despite going around longer than Cogasi, Clemente was unable to identify anybody. Clemente started to point to James
Tagle but withdrew his identification of him when some people then present laughed and shouted "Hoy!" and "Sabali!"
meaning "Wrong!" or "Different!" Accused-appellants insist that Clemente could not have made a reliable identification
of them at the NBI and La Trinidad line ups, nor even in open court, because his eye injury blurred his vision.
The rule is that positive identification of witnesses prevails over the simple denial of the accused. It cannot be
doubted that Clemente and Cogasi had a good view of the faces of the accused. From the testimonies of various
witnesses, including PO3 Jimmy Baybay, one of the policemen who conducted Operation Kapkap, the Skyview
Restaurant was well-lighted.Banisa himself testified that although the lighting may be "somewhat dim," he could still
recognize a person from a distance of four (4) meters.[3] This is relevant considering that the two (2) groups were seated
only one (1) table apart. Thus, Cogasi and his friends were able to recognize their assailants as the persons who came
out from the Skyview Restaurant.
The crime scene was illuminated by two (2) streetlights and the lights coming from the nearby Garden Inn and
various sari-sari stores. The fact that the policemen who responded to the report of the incident had to use a flashlight
in their investigation did not prove that the area was so dark as to preclude the identification of the persons involved. For
one thing, the policemen had to be careful not to overlook any piece of evidence, such as a spent bullet. For another,
SPO4 Antonio Naungayan of PNP Baguio City, who was part of the investigating team, testified on cross-examination
that even if the area was not brightly lighted, one could still recognize people. [4] According to Clemente, he was only
four (4) meters away from his attackers when they fired upon him and his friends. Cogasi was only 1-1/2 meters away
while Adawan and Lino, who died on the spot, were each only about a meter away.
It cannot be doubted that Cogasi and Clemente had enough time to take a good look at their assailants faces who
conversed with their victims, ordered them to fall in line, frisked them one by one, and asked them questions before
shooting them. When Bangcado and Banisa leaned over to frisk Cogasi and his friends, their faces must have only
been inches away from their victims; and when they ordered their victims to line up against the vehicle, they stood only
a few meters away.
Although Clemente admitted to be suffering from blurred vision, Cogasis positive identification of appellants could
be sufficient to establish their identities. Indeed, there is no law that requires that the testimony of a single witness must
be corroborated except, of course, when expressly mandated. Witnesses are to be weighed, not numbered, in
determining the credibility of witnesses and the value of each piece of evidence. In fact, the testimony of a single
witness, if credible and positive, is sufficient to convict, [5] and must be given full faith and credence when no reason to
falsely testify is shown.[6]
Assuming arguendo that Clemente was unable to identify accused-appellants during the line-up in La Trinidad as
his right eye was still bandaged from his injuries, he was able to make a positive identification in open court. Neither is
it material now that Clemente made some attempts to point to policeman James Tagle for it seems clear that he
withdrew his identification.Besides, Clemente admitted candidly that he could not identify anyone in the line-up since
his right eye was still covered with a bandage and was still suffering from blurred vision.
Further, the defense failed to shake Cogasis certainty, either when he declared that he recognized accused-
appellants as being those who were earlier in the Skyview Restaurant, or when he pointed to them in the line-up at La
Trinidad. The fact that he took some five (5) minutes and had to go around the line-up four (4) or five (5) times did not
detract from his credibility. Rather, it is to his credit that he took time to look closely into the faces of more than twenty-
four (24) or so similarly garbed men to make sure that he did not make a mistake in identifying his assailants.
Neither should the defense attempt to mislead the Court by pointing out that Cogasi was not able to identify
Bangcado during the NBI line-up since it is clear that that line-up did not include accused-appellants. Instead, it was
composed of four (4) civilians, none of whom he had ever seen before. Since these four (4) had no connection with the
crime, there was no reason for Cogasi to implicate any of them in the murder.
The defense also points out that the policemen who conducted Operation Kapkap indicated in their joint affidavit
that they only saw Banisa present inside the Skyview Restaurant, along with three (3) unidentified
companions. According to the defense, this only proves that Bangcado was not there since the policemen personally
knew Bangcado and thus should have included him in their joint affidavit.
However, the theory of the trial court that the reason why they did not see Bangcado with Banisa was because
he went to the washroom or elsewhere deserves credence. Considering that the Skyview Restaurant had some thirty
(30) to fifty (50) customers that night; that the four (4) policemen were busy going around the tables
conducting Operation KapKap; that they did not approach the table of Banisa to frisk him and his companions because
they recognized him as a policeman, then it is evident that their attention was elsewhere, and that they did not bother
to inquire whether Banisa had other fellow officers with him. Further, the policemen testified that they were in the
restaurant for only a few minutes.
Further, PO Delfin Balan-eg, one of the policemen who conducted Operation Kapkap, testified that he saw
Bangcado and Banisa drinking beer inside the restaurant. The defense tried to destroy his credibility by establishing
that he and the two (2) victims as well as the two (2) complaining witnesses were related. However, it must be stressed,
that relationship, much less bias, cannot be established by the fact that two (2) persons live in different barangays that
form part of the same town.
The defense insist that neither could Cogasis testimony be given any weight since his testimony in open court
contradicted his sworn affidavit executed immediately after the incident before the investigating officer. While he
testified that he saw the accused emerge from the Skyview Restaurant, in his affidavit, he swore that their attackers
actually alighted from a red -colored car. The theory of the defense is that if the gunmen alighted from a red or maroon
colored car immediately before the shooting, then they could not have come from the Skyview Restaurant, and vice
versa.
An affidavit taken ex parte is judicially considered to be almost incomplete and often inaccurate, sometimes from
partial suggestions and sometimes from want of suggestions and inquiries, without the aid of which the witness may
be unable to recall the connected circumstances necessary for his accurate recollection of the incident. [7] Further, an
examination of Cogasis sworn statement shows, however, that there was actually no contradiction. His testimony was
as follows: "x x x I noticed a maroon car x x x I noticed also two persons who were immediately following us went (sic)
near the parked maroon car and one of them opened the door at the drivers side but immediately closed it." [8] Quite
obviously, the two (2) persons who emerged from the Skyview Restaurant intended to board the parked car but changed
their minds and, instead, followed Cogasi and his friends to the Ford Fierra that was parked.
The accused-appellants raise the defense of alibi which is inherently weak. To prosper, alibi must be so convincing
as to preclude any doubt that the accused could not have been physically present at the crime scene at the time of the
incident.[9] The alibis of the accused clearly show upon examination that this could not have been so.
Bangcado testified that he stayed at home because he served his tour of duty from 12:00 midnight to 8:00 a.m.
the previous day. Thus, on the day of the incident, he was at home where he slept, read the newspapers, watched
television and played with his one-year-and-seven-month old daughter. After dinner, he took a nap until his mother-in-
law woke him up before 11:00 p.m. so he could report to the police station before 12:00 midnight. As police officer
assigned to patrol his area of responsibility, his job was to ride in the police vehicle going around La Trinidad. [10] This
was confirmed by Bangcado's mother-in-law Angela Gondales when she testified for the accused.
Yet, Bangcado himself told the court that Central Pico, La Trinidad, Benguet, where his mother-in-laws house
stood, was only five (5) kilometers away from Skyview Restaurant and could be negotiated in thirty (30) minutes using
a motor vehicle.[11] The fact that La Trinidad was only thirty (30) minutes away from Baguio City was corroborated by
Banisa himself.[12] And Bangcados house is near a national highway where jeepneys pass by on their way to Baguio
City, which means, it was not impossible for Bangcado to have left the house earlier than 11:00 p.m. and be in Baguio
City at the time of the incident.
The defense failed to establish with credible evidence that SPO1 Jose Bangcado was on duty from 11:00 o'clock
in the evening to 8:30 the following morning. SPO4 Lilia Pascual, Records Custodian of the PNP at La Trinidad,
Benguet, testified that there was no record of the attendance of PNP officers from June to December 1993. SPO4
Carlos Layagan, Bangcados Patrol Section Supervisor, testified that on that day, Bangcado was present for his regular
tour of duty from 12:00 o'clock midnight to 8:00 o'clock the following morning and conducted routine patrol by
mobile,[13] but the incident occurred at around 9:00 o'clock in the evening according to the police who responded when
the crime was reported to them. Thus, Bangcado had plenty of time to do what he did and still go on his tour of
duty. More damaging was the admission of Layagan in his cross-examination that before 12:00 o'clock midnight of 27
June 1993 he was not in the company of SPO1 Jose Bangcado. [14]
The alibi of PO3 Cesar Banisa was even more incredible. He admitted being at the Skyview Restaurant when
Cogasi and his friends were there, but claimed that he left with his brother to eat mami and siopao at the Baguio First
Hotel, which is only about a hundred (100) to a hundred and fifty (150) meters away from Skyview Restaurant and
could be reached in five (5) minutes of walking.[15] He explained however that "this bold admission x x x placing him
within the vicinity of the crime scene shows his clear conscience. For, if he was involved in the crime, he would naturally
put himself in other places."[16] His testimony was corroborated by Abelardo Lucas who testified that he, along with
Arsenio Palileng and Raymund Banisa, accused-appellants brother, was with Banisa that night.
While flight of an accused is competent evidence to establish prima facie his guilt, there is no law or principle that
non-flight per se is proof, let alone conclusive proof, of innocence.Much like the defense of alibi, non-flight cannot
prevail against the weight of positive identification of the accused. [17] It is more credible to believe that Banisa had no
choice but to tell the truth regarding his presence at the Skyview Restaurant because four (4) policemen who knew him
well saw him there while they were conducting Operation Kapkap.
PO3 Banisa further claims that his group stayed at the Baguio First Hotel Restaurant for only ten (10) minutes
and then went down the road to the jeepney station where they boarded a jeepney at 9:00 o'clock in the evening bound
for La Trinidad and got home after twenty-five (25) to thirty-five (35) minutes. Yet he also testified that the boarding
station for jeepneys bound for La Trinidad was only across the road from Skyview Restaurant.
SPO1 Jose Bangcado and PO3 Cesar Banisa could have accosted their victims, gone back to Skyview Restaurant
and joined their companions who may have thought that they (Bangcado and Banisa) just went to the comfort room or
stepped out for some fresh air. Abelardo Lucas himself testified that while they were at the Skyview Restaurant his
companions would frequently stand up and leave, purportedly to go to the restroom.
The defense bewails the fact that nothing seemed to have been done to the deformed slug found near the body
of the deceased Richard Lino, nor to the other slug extracted from Clemente, and that no ballistics examination was
conducted to determine from what caliber they were fired and if the gun used was the same. Investigators did not even
cause the surrender of accused-appellants firearms for examination and comparison. Neither were accused-appellants
required to undergo a paraffin test.
 Nonetheless, a ballistics examination is not indispensable, and even if another weapon was in fact actually used
in killing the victim, still the accused cannot excape criminal liability therefor as he was already positively
identified.[18] Because credible witnesses had already demonstrated accused-appellants' culpability, there was no need
to present further evidence linking them to the crime. There is no requirement of a certain quantum of evidence before
one may be justly convicted of an offense except when specifically required by law. The only requisite then is that the
guilt of the accused is proved beyond reasonable doubt. [19]
Accused-appellants insist that they had no motive to shoot the victims and/or the complaining
witnesses. However, even the absence of a known motive, the time-honored rule is that motive is not essential to
convict when there is no doubt as to the identity of the culprit.[20] Lack of motive does not preclude conviction when the
crime and the participation of the accused therein are definitely shown, [21] particularly when we consider how nowadays,
it is a matter of judicial knowledge that persons have killed or committed serious offense for no reason at all. [22]
The defense also tried, but failed, to establish that Cogasi and Clemente knew beforehand that Bangcado and
Banisa were policemen as they all lived and worked together in the same neighborhood. This allegation is not sufficient
to prove that the witnesses for the prosecution had any ill motive to testify against accused-appellants. When there is
no evidence to show any improper motive on the part of the prosecution witnesses to testify falsely against an accused
or to falsely implicate him in the commission of a crime, the logical conclusion is that no such improper motive exists
and that the testimony is worthy of full faith and credit. [23]
The defense also assails the conclusion reached by the trial court that the accused were guilty because they
remained silent when they were pinpointed by Cogasi during the police line-up. The trial court asked, "Is it not that 'Qui
tacen concentire videtur,' meaning, 'Silence means consent'?"[24]
Although the Rules of Court provides that an act or declaration made in the presence and within the hearing or
observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or
comment if not true, and when proper and possible for him to do so, may be given in evidence against him, [25] courts
should be cautious in interpreting silence against the accused. Further, the facts do not support the conclusion that the
accused remained silent. Both Bangcado and Banisa gave their individual reactions during the line-up but police
discipline kept them from breaking rank.[26] As police officers, they are bound by the strict discipline of their profession,
as well as an awareness of their rights to remain silent and to avail of the services of counsel. These rights are not
diminished by the fact that they are policemen.
However, the trial court ruled, and correctly so, that at the time of the police line-up, accused-appellants were not
yet under the custody of the police agencies. Their rights had not yet been restricted or curtailed. The right to counsel
attaches from the moment the investigation starts, i.e., when the investigating officer begins to ask questions to elicit
information and confessions or admissions from the accused.
From the testimony of the victims as well as from the physical evidence, it seems that SPO1 Bangcado was the
lone gunman, while PO3 Banisa merely stood behind him with his gun drawn. In his testimony, Cogasi narrated how
the shooting occured -
Q: You testified that the thin one who called himself Jose Bangcado pointed a gun at Leandro Adawan, what type
of gun is (sic) that x x x x
A: It was black and short.
Q: What about the fat man at that time, was identified as Cesar Banisa, what was he doing at that time?
A: He was also standing beside him and was holding his gun.
Q: Would you illustrate to this Court how Jose Bangcado pointed a gun at Leandro Adawan?
A: Witness stretch[ed] both his arms and clasped his hands together with the forefinger extended in front of him.
Q: After you saw Jose Bangcado point a gun at Leandro Adawan, what else transpired, Mr. Witness?
A: He suddenly fired his gun.
Q: To whom Mr. Witness did he fire his gun?
A: He fired his gun to the four of us.
Q: After firing his gun what else transpired, Mr. Witness?
A: I just felt that I fell down.
Q: Why did you fall down?
 A: Because I was shot.[27]
On cross-examination, Cogasi affirmed his sworn statement taken by the investigating officer immediately after
the incident wherein he referred to only one (1) gunman who did the shooting. He further testified that he heard four (4)
successive shots when the gunman started shooting, then heard more shots only after he had succeeded in running
away.
On his part, Clemente attested in his sworn statement that "the man in jacket then ordered us to line up. After we
have formed a line, he started shooting at us starting from the left. He shot first Leandro, then Richard and followed by
Pacson. After hearing the shots and seeing my companions fall, I turned my back and held my nape with my two (2)
hands and started to run but I got hit and fell. I got up and tried to run but I fell down again."[28]
On the other hand, during his direct examination Clemente testified -
Q: Now, Mr. Witness, when these two (2) persons followed you and your companions, what did you observe from
them that time?
A: They have (sic) guns, sir.
Q: What kind of guns do (sic) they have?
A: Short and black, sir.
Q: And were they holding their guns?
A: They were holding their guns, sir x x x x
Q: After you were made to fall in line, what happened next?
A: He pointed a gun, sir.
Q: Who pointed the gun to whom?
A: The thin man pointed his gun at Leandro Adawan, sir.
Q: What else transpired after that?
A: They fired their guns at us, sir.
Q: Who shot at who (sic)?
A: The two (2) of them, sir, because there were two of them. [29]
On cross examination, Clemente testified -
Q: So, you said on that date you were frisked and then later on lined-up and when you heard successive shots,
you fell down?
A: When I heard the three (3) successive shots, I saw one pointing the gun again at me, so, I turned around and
prepared to run, but I was hit, sir. When I turned my back and started to run, I was hit, sir.
Q: So, because you turned your back, you did not really see who actually shot you?
A: I saw the thin one point the gun at me and both were armed with guns, sir x x x x
Q: So, you want to tell the court that it was the thin one who shot you because he was holding the gun that way, is
that correct?
A: I do not know because both of them have (sic) guns, sir. But I saw the thin one pointing a gun at me, sir.[30]
Thus, as to the identity of the gunman, it is apparent that both witnesses were positive only as far as Bangcado
was concerned. However, it seems that they only concluded that Banisa participated in the shooting because he was
also holding a gun. The failure of the surviving victims to assert with confidence that Banisa also fired his gun raises
reasonable doubt as to whether he participated in the shooting.
Accused-appellants deny the existence of treachery, nighttime and abuse of public position to aggravate the
commission of the crimes. It is settled that qualifying circumstances cannot be presumed but must be established by
clear and convincing evidence, as conclusively as the killing itself. [31] The defense alleges that there is no evidence that
accused-appellants made some preparation to kill the victim in such a manner as to insure the execution of the crime
or to make it impossible or hard for the person attacked to defend himself. For treachery to be considered, two (2)
elements must concur: (a) the employment of means of execution that gives the person attacked no opportunity to
defend himself or retaliate; and, (b) the means of execution were deliberately or consciously adopted.[32] In this case,
treachery was not present. In a long line of cases, the Court held that "the essence of treachery is the swift and
unexpected attack on an unarmed victim without the slightest provocation on his part." [33]
To ensure that he was not in any risk, accused-appellant Bangcado frisked and searched Cogasi, Clemente,
Adawan and Lino to see if they were concealing any weapons. After making sure that the victims were unarmed,
Bangcado directed the victims to form a line against the Ford Fierra to separate the victims from each other and so that
the latter could not rush to their friends defense. Because Bangcado and Banisa were holding handguns, Cogasi and
his friends did as they were told and were caught unaware when they were shot. In fact, Adawan and Lino died of
gunshot wounds in the head, while Cogasi and Clemente only sustained head wounds that did not prove fatal.
In the absence of any previous plan or agreement to commit a crime, the criminal responsibility arising from
different acts directed against one and the same person is individual and not collective, and that each of the participants
is liable only for his own acts.[34] Consequently, Banisa must be absolved from criminal responsibility for the assault on
the victims. It is clear that neither the victims nor Banisa could have anticipated Bangcados act of shooting the victims
since the attack was sudden and without any reason or purpose. Thus, the criminal design of Bangcado had not yet
been revealed prior to the killings.
For public position to be appreciated as an aggravating circumstance, the public official must use his influence,
prestige and ascendancy which his office gives him in realizing his purpose. If the accused could have perpetrated the
crime without occupying his position, then there is no abuse of public position. [35] Hence, that aggravating circumstance
cannot be appreciated here. While it may seem that accused-appellants intended to assert their authority as policemen
and encourage in the victims minds the belief that they were part of Operation KapKap when they frisked the victims,
both Cogasi and Clemente testified that they never told the investigating officers that their assailants might be
policemen. In fact, because the assailants were not in uniform, they believed the latter to be civilians.
The defense claims that the injuries of the surviving victims were not serious enough to classify the attack under
the frustrated stage, therefore, they committed only attempted homicide. However, the doctors who attended to the
surviving victims testified that had they not treated Cogasi and Clemente's injuries the latter would have suffered from
infection which could result in their death. It is clear that only timely medical attention saved both victims from imminent
death.
Accused-appellants deny that there was an offer to compromise when their relatives visited Miguel Adawan, the
81-year old father of Leandro Adawan. The old Adawan in tears testified that he came to know of the accused Bangcado
and Banisa through their relatives when the latter came to his house in Besao, Mt. Province. Although the incident
occurred on 27 June 1993, the first visit was sometime in April 1995 when Magdalena Mabiasan, the mother of Jose
Banisa came "for a possible settlement of the case." [36] Again, sometime in August or September 1996, Bangcados
wife and parents, along with Banisas mother Magdalena, visited him at Pico, La Trinidad. [37]
The defense claims that the only reason the relatives of accused-appellant went to visit and talk to Miguel Adawan
was to prevent him from avenging his sons death on the families of accused-appellant, in keeping with the tradition of
the Igorot indigenous people. Therefore, this cannot be interpreted as an implied admission of guilt. Moreover, Sec. 27
of Rule 130[38]contemplates an offer of compromise from the accused himself. There is no showing that the visits were
made with the knowledge or upon the instructions of accused-appellants. Thus, even if the purpose of the visit was to
negotiate a settlement, accused-appellants had nothing to do with it, since they were neither participants nor
initiators.[39]
The trial court believed in the testimony of Adawan, compared to that of the relatives of accused-appellants who
could be biased, partial and, of course, hoping to save the two (2) accused from the serious predicament they were
in.[40] It posited this question:
But why is it that during the first time that they approached the 77-year old man Adawan in Besao, Mountain
Province, they were already assured that the family of the deceased Adawan would not take revenge and for the last
three years, nothing happened to the families of the accused, still they again went to the residence of Miguel Adawan
at Pico, La Trinidad, Benguet. This would only show that they tried to amicably settle the cases, but they were
rebuffed.[41]
But an offer of compromise from an unauthorized person cannot amount to an admission of the party
himself.[42] Although the Court has held in some cases that an attempt of the parents of the accused to settle the case
is an implied admission of guilt,[43] we believe that the better rule is that for a compromise to amount to an implied
admission of guilt, the accused should be present or at least had authorized the compromise.
In People v. Macatana[44] it was held: "No implied admission can be drawn from the efforts to arrive at a settlement
outside the courts, primarily because appellant did not take part in any of the negotiations. The efforts to settle the case
x x x in accordance with the established Muslim practices, customs and traditions were initiated by acknowledged
leaders x x x in an effort to prevent further deterioration of the relations between the tribes." [45]
The general rule is that claims for actual damages should be supported by actual receipts. However, it is
undisputed that the victims are members of the indigenous community and were buried according to their customs and
traditions. The relatives of the victims attested that they incurred expenses for the caao, the traditional gathering of
Igorots. The Court is not unaware that the informal market system still governs the economic transactions of indigenous
communities. Thus, receipts and other documents do not play a large role in their daily commercial transactions. In this
case, wherein it is clearly established that the claimants were indeed members of indigenous communities, then the
court should allow reasonable claims for expenses incurred in relation to traditional burial practices.
The heirs are also entitled to damages for the loss of earning capacity of the deceased Leandro Adawan. The fact
that the prosecution did not present documentary evidence to support its claim for damages for loss of earning capacity
of the deceased does not preclude recovery of the damages.[46] Testimonial evidence is sufficient to establish a basis
for which the court can make a fair and reasonable estimate of the damages for the loss of earning
capacity.[47] Moreover, in fixing the damages for loss of earning capacity of a deceased victim, the Court can consider
the nature of its occupation, his educational attainment and the state of his health at the time of his death. [48] The
testimony of Adawans father sufficiently established the basis for making such an award. It was shown that Adawan
was thirty-seven (37) years old at the time of his death in 1993 and earned P4,000.00 a month as a mechanic.
Hence, in accordance with the American Expectancy Table of Mortality adopted by this Court in several
cases,[49] the loss of his earning capacity is to be calculated as follows:

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

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

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

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

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

x = 28.67 x P24,000.00

x = P688,080.00

Since Leandro Adawan was thirty-seven (37) years old at the time of his death, his life expectancy was 28.67
years. Considering that his average monthly income was P4,000.00, his gross annual income would
be P48,000.00. Using the above formula, the victims unearned income would thus be P688,080.00.
On the other hand, the Court has no basis to award damages for Richard Lino loss of earning capacity because
the prosecution failed to introduce any evidence on this matter.
Civil indemnity in the amount of P50,000.00 (consistent with prevailing jurisprudence) is automatically granted to
the offended party, or his/her heirs in case of the formers death, without need of further evidence other than the fact of
the commission of any of the aforementioned crimes (murder, homicide, parricide and rape). Moral and exemplary
damages may be separately granted in addition to indemnity. Moral damages can be awarded only upon sufficient
proof that the complainant is entitled thereto in accordance with Art. 2217 of the Civil Code, while exemplary damages
can be awarded if the crime is committed with one or more aggravating circumstances duly proved. The amounts
thereof shall be at the discretion of the courts.[50]
Under present case law, the award of P50,000.00 for civil indemnity is mandatory upon the finding of the fact of
murder. Moral damages, vis-a-vis compensatory damages or civil indemnity, are different from each other and should
thus be awarded separately.[51] Thus, as explained in People v. Victor,[52] the indemnity authorized by our criminal law
as civil liability ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from
other established actual damages, is itself equivalent to actual or compensatory damages in civil law. It is not to be
considered as moral damages thereunder, the latter being based on different jural foundations and assessed by the
court in the exercise of sound discretion.[53]
 In People v. Victor the Court increased the civil indemnity for rape committed or effectively qualified by any of the
circumstances under which the death penalty is authorized by the present amended law, from P50,000.00
to P75,000.00. The Court held that "This is not only a reaction to the apathetic societal perception of the penal law and
the financial fluctations over time, but also an expression of the displeasure of the Court over the incidence of heinous
crimes against chastity."[54] It is submitted that the heirs of victims of murder, which is also a heinous crime, should not
receive less than what victims of rape receive as civil indemnity. If the civil indemnity is automatically imposed upon
the accused without need of proof other than the fact of the commission of the offense, all the more reason should the
same minimum amount be imposed on those convicted of murder, as more often than not the victims who are killed
leave behind grieving families who are depended upon them for support. Thus, indemnity of P75,000.00 should
therefore be reckoned for each count of murder committed by accused-appellant SPO1 Jose Bangcado.
Since the crime was committed on 27 June 1993, the penalty for murder prescribed by Art. 248 of the Revised
Penal Code, prior to its amendment by RA 7659, which took effect only on 31 December 1993, should be applied in
imposing the penalty for frustrated murder, i.e., reclusion temporal maximum to death.
The penalty for frustrated murder is one (1) degree lower than that prescribed by the Penal Code for the
consummated offense, hence, the imposable penalty for frustrated murder should be prision mayor maximum
to reclusion temporal medium. Applying the Indeterminate Sentence Law, and there being no mitigating nor
aggravating circumstance present in the commission of the offense, the penalty to be imposed for the frustrated murder
shall be taken from the range of prision correccional maximum to prision mayor medium or four (4) years two (2) months
and one (1) day to ten (10) years as minimum, to the medium period of prision mayor maximum to reclusion temporal or
twelve (12) years five (5) months and eleven (11) days to fourteen (14) years ten (10) months and twenty (20) days as
maximum. Hence, an indeterminate prison term of eight (8) years two (2) months and ten (10) days of prision
mayor medium as minimum to fourteen (14) years four (4) months and ten (10) days of reclusion temporal medium as
maximum may be considered reasonable for the frustrated murder under the facts of this case.
WHEREFORE, the Decision of the court a quo in Crim. Cases Nos. 11619-R to 11622-R imposing reclusion
perpetua for the two (2) counts of murder and the indeterminate prison term of prision mayor in its medium period
to reclusion temporal in its medium period for two (2) counts of frustrated murder on both accused-appellants SPO1
Jose Bangcado and PO3 Cesar Banisa is MODIFIED as follows:
1. In Crim. Case No. 11619-R, accused-appellant SPO1 Jose Bangcado is found GUILTY of murder under Art.
248 of the Revised Penal Code qualified by treachery, and is sentenced to reclusion perpetua and to pay the heirs of
the victim Richard Lino P75,000.00 as indemnity for his death, P59,300.00 as actual damages, P200,000.00 as moral
damages, and to pay the costs;
2. In Crim. Case No. 11620-R, accused-appellant SPO1 Jose Bangcado is found GUILTY of murder under Art.
248 of the Revised Penal Code, qualified by treachery, and is sentenced to reclusion perpetua and to pay the heirs of
the victim Leandro Adawan P75,000.00 as indemnity for his death, P93,100.00 as actual damages, P200,000.00 as
moral damages, and to pay the costs;
3. In Crim. Case No. 11621-R, accused-appellant SPO1 Jose Bangcado is found GUILTY of frustrated murder
under Art. 248 in relation to Art. 6 of the Revised Penal Code. Applying the Indeterminate Sentence Law, and in the
absence of modifying circumstances, he is sentenced to an indeterminate prison term of eight (8) years two (2) months
and ten (10) days of prision mayor medium, as minimum, to fourteen (14) years four (4) months and ten (10)
days reclusion temporal medium, as maximum, for the frustrated murder of the victim Julio Clemente, and pay
him P100,000.00 as moral damages, and to pay the costs; and,
4. In Crim. Case No. 11622-R, accused-appellant SPO1 Jose Bangcado is found GUILTY of frustrated murder
under Art. 248 in relation to Art. 6 of the Revised Penal Code. Applying the Indeterminate Sentence Law, and in the
absence of modifying circumstances, he is sentenced to an indeterminate prison term of of eight (8) years two (2)
months and ten (10) days of prision mayor medium, as minimum, to fourteen (14) years four (4) months and ten (10)
days of reclusion temporal medium, as maximum, for the frustrated murder of Pacson Cogasi, and pay
him P100,000.00 as moral damages, and to pay the costs.
There being no finding of conspiracy with accused-appellant SPO1 Jose Bangcado, PO3 Cesar Banisa is
ACQUITTED of all the charges against him and, consequently, is ordered released from custody in connection with
herein cases, unless he is held for other lawful causes.
SO ORDERED.
Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.
THIRD DIVISION
 [G.R. No. 135204. April 14, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. NARCISO RAMOS y MATIAS, RAMON SAN ROQUE y DELA CRUZ,
EULALIA SAN ROQUE DE FRANCISCO y DELA CRUZ alias LALING, WILLIAM RAMOS alias WILFREDO
RAMOS, (provisionally dismissed), and three (3) other John Does, accused.
EULALIA SAN ROQUE DE FRANCISCO y DELA CRUZ alias LALING, appellant.

DECISION
SANDOVAL-GUTIERREZ, J.:

Appeal by Eulalia San Roque de Francisco y dela Cruz from the Decision[1] dated April 24, 1998 of the Regional
Trial Court, Branch 122, Caloocan City, in Criminal Case No. C-46010, declaring her guilty beyond reasonable doubt
of the crime of murder and sentencing her to suffer the penalty of reclusion perpetua. She was also adjudged to pay
the heirs of the victim, P50,000.00 as civil indemnity.
The Information[2] dated December 14, 1993 filed against appellant and her co-accused Narciso Ramos y Matias
alias Narcing, Ramon San Roque y dela Cruz, Wilfredo Ramos and three (3) other John Does is quoted as follows:

That on or about the 11th day of February 1993 in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable
Court, the above named accused, with deliberate intent to kill, conspiring together and mutually helping one another, with
treachery, evident premeditation and abuse of superior strength, did then and there willfully, unlawfully and feloniously tie up on
a santol tree, stab, shoot and burn one WILLIAM LOMIDA, resulting to the death of the latter.

CONTRARY TO LAW.

Upon arraignment on December 15, 1994, appellant, assisted by counsel, pleaded not guilty to the crime charged.
The case against Wilfredo Ramos was provisionally dismissed. The other accused, Narciso Ramos and Ramon
San Roque, have remained at large.
During the trial, the prosecution presented the following witnesses: Bernie Ambal, Saturnino Rivera, Mariano
Lomida and NBI Special Investigator Laurence M. Nidera. Their testimonies, woven together, established the following
facts:
On February 11, 1993 at around 7:00 oclock in the evening, Bernie Ambal was standing outside his store at 168
De Paro St., Caloocan City. Narciso Ramos, Ramon San Roque and three (3) others passed by. They proceeded to
the house of William Lomida and appellant, who were then live-in partners. Narciso and Ramon stood by the door,
while one of their companions, holding an armalite, positioned himself behind Narciso. Their other companion, armed
with a pistol, stayed on the street, and the third one, also armed with a pistol, went to the backyard. At a distance of ten
(10) meters away, Ambal saw Narciso pulling out his .45 caliber pistol and knocking at the door. Appellant then opened
the door and Ramon went inside.
Soon thereafter, William and appellant, accompanied by Narciso, Ramon, and three (3) others left the house. As
they were passing by the store, Ramon stopped and borrowed Ambals jacket. At that instance, William suddenly held
his arm and whispered, Samahan mo naman ako, baka kung ano ang gawin sa akin ng mga ito, tutal barkada mo
naman si Ramon. But Ambal was scared and hesitant. William then requested him to look for Saturnino Rivera.
The group headed to Narcisos house, about kilometer away from Ambals store. Unknown to them, Ambal trailed
behind. Hiding himself behind a tree fifteen meters away, Ambal saw one of their companions poking his armalite at
William. Then, they tied William to a santol tree. He was pleading to appellant, but she simply turned her back. Ramon
stabbed William twice at the stomach with a 29 bladed knife. Then Narciso shot William five to seven times with his .45
caliber pistol. When William was already dead, Ramon and Wilfredo Ramos untied his body and brought it to a dumpsite
(of used tires) twenty five meters away. There they placed Williams body atop a pile of rubber tires. Ramon poured
gasoline on his body and set it on fire.Appellant and the others were closely watching. After thirty minutes, appellant
and the men left. Ambal immediately reported the incident to Saturnino Rivera. They proceeded to the dumpsite where
they saw the charred body. According to Ambal, Ramon, appellant and Narcisos sister are brother and sisters.
 Saturnino Rivera declared on the witness stand that he considered William his best friend. William and appellant
frequently quarreled and sometimes, he maltreated her. Saturnino corroborated Ambals testimony that they went to the
scene of the crime and saw the charred body of William; and that they reported the gruesome incident to the NBI.
Mariano Lomida testified that on February 19, 1993, or eight days after the incident, appellant suddenly arrived in
Atimonan, Quezon looking for William. She told Mariano that William left their house on February 9, 1993 without her
knowledge. She borrowed P3,000.00 from him (Mariano) with a promise to pay on March 27, 1993. But since then, he
never saw her again.Mariano further testified that due to the death of his son, he suffered wounded feelings.
Special Investigator Laurence M. Nidera of the NBI Anti-Organized Crime Division conducted the investigation. He
took the statements of Bernie Ambal, Saturnino Rivera and Mariano Lomida. Upon the arrest of appellant and Narciso
Ramos by the Capital Command (CAPCOM) of the Philippine National Police, they were turned over to the NBI.
After the prosecution rested its case, appellant filed a demurrer to evidence but was denied. Meanwhile, appellant
jumped bail. On the basis of the evidence presented by the prosecution, the case was submitted for decision.
On April 24, 1998, the trial court rendered a Decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered, finding the accused Eulalia San Roque de Francisco y dela Cruz alias Laling
GUILTY beyond reasonable doubt of the crime of murder as charged in the Information and hereby sentences her to suffer the
penalty of reclusion perpetua with accessory penalties as provided by the law and to indemnify the heirs of the victim in the sum
of P50,000.00.

SO ORDERED.[3]

Appellant appeared during the promulgation of the Decision.

In her brief, appellant raised the following assignments of error:
I

THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED EULALIA SAN ROQUE DE FRANCISCO Y DELA
CRUZ alias LALING CONSPIRED AND CONFEDERATED WITH HER CO-ACCUSED IN PERPETRATING THE CRIME
OF MURDER, WHEN THE FACT OF SUCH CONSPIRACY HAS NOT BEEN SATISFACTORILY PROVEN TO EXIST
BEYOND REASONABLE DOUBT DURING THE TRIAL OF THE CASE.

II

THE TRIAL COURT ERRED IN DECIDING THE CASE AGAINST THE ACCUSED-APPELLANT DESPITE THE WEAK
EVIDENCE OF THE PROSECUTION, CONSIDERING THAT THE PROSECUTION HAS FAILED TO PROVE ALL THE
NECESSARY ELEMENTS OF THE CRIME AND THE CORPUS DELICTI.

III

THE TRIAL COURT ERRED IN HOLDING THE ACCUSED GUILTY OF THE CRIME OF MURDER BY THE MERE
FACT THAT SHE FAILED TO APPEAR AFTER THE CASE WAS REVIVED SUCH FAILURE HAVING BEEN
APPRECIATED BY THE TRIAL COURT AS A CLEAR INDICATION OF HER GUILT.

IV

THE TRIAL COURT COMMITTED AN ERROR IN FINDING THE ACCUSED GUILTY OF THE CRIME OF MURDER
ON THE BASIS ALONE OF THE TESTIMONY OF THE SOLE WITNESS IN THIS CASE, WITHOUT BEING
SUPPORTED THEREBY BY CONVINCING EVIDENCE.

We shall discuss the above assignments of error jointly.

Article 248 of the Revised Penal Code, as amended, provides:

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,[4] in its maximum period to death, if committed with any of the following attendant
circumstances:

1. With treachery, taking advantage of superior strength, with the aim of armed men, or employing means to weaken the defense
or of means or persons to insure or afford impunity.

2. In consideration of a price, reward or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of
an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano,
destructive cyclone, epidemic or other public calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or
corpse.

In convicting the appellant of murder, the trial court gave full faith and credence to the testimony of prosecution
lone eyewitness, Bernie Ambal. An extract from his testimony is quoted hereunder:
DIRECT EXAMINATION BY PROS. MANAQUIL:
xxx
Q And in the evening of that date, could you recall at about 7:00 in the evening of February 11, 1993, if there
was any unusual incident that happened?
A Yes, sir.
Q Will you please tell us what was that unusual incident all about that you observed and noticed?
A Narciso Ramos, Ramon San Roque and three men of Narciso Ramos got the victim and Eulalia San
Roque was also with the group.
Court:
Q Who was taken?
A The victim, your Honor.
Q What is the name of the victim?
A William Lomida was taken by these people.
Pros. Mananquil:
Q From where the accused picked up by these people?
A Lomida was taken from the house where Eulalia San Roque and William Lomida were living.
Q William Lomida is the victim in this case. Now, how is he related to Eulalia San Roque?
A They are not married. They are live-in partners.
Q Now, how far from the store where this house of William Lomida and Eulalia San Roque is located?
A More or less, ten meters away.
Q Is it located in front of the store, on the left side or at the back of the store?
A The house of Eulalia is alongside of our house.
Q What part of your store where you were at the time you saw these people picked up Lomida?
A I was outside the store standing.
Q After the accused picked up the victim, what happened or where did they go?
A William Lomida, the victim, was brought to the house of Narciso Ramos.
xxx
Court:
xxx
Q So the persons whom you saw got Lomida were Narciso Ramos, Ramon San Roque, William Ramos
alias Wilfredo Ramos and three men of Narciso Ramos and Eulalia San Roque?
A Yes, your Honor.
xxx
Pros. Mananquil:
Q Now, you said that the accused brought William Lomida to the house of Narciso Ramos. How far is this
house of Narciso Ramos located in relation to the store, your store?
A About half kilometer away.
xxx
Q Now, when the victim was brought to the house of Narciso Ramos, what happened next?
A The victim was tied to a santol tree.
Q Where is this santol tree where the victim Lomida was tied? How far is this from the house of Narciso
Ramos?
Court:
Q Who tied the victim?
A Ramon San Roque, Wilfredo Ramos and the three others unidentified men.
Pros. Mananquil:
Q After the accused tied William Lomida on a santol tree, what happened next?
A Ramon San Roque stabbed William Lomida.
Q And with what kind of weapon was used by Ramon San Roque?
A A bladed 29.
Q How long?
A I cannot say how long, sir.
Q How many times did you see Ramon San Roque stabbed the victim with the 29?
A About two times, sir.
Q And did you see if Lomida was hit with that two stab thrust?
A He was stabbed on the stomach.
Pros. Mananquil:
Q What happened after Ramon San Roque stabbed the victim?
A The victim, William Lomida nangisay and then Narciso Ramos came near the victim and shot him.
Q How many times?
A About 5 to 7 shots.
Q And did you see if the victim was hit?
A It seems that the shots were directed to his face because he was bloodied all over his face.
Q With what kind of firearm, if you remember?
A When the investigator showed me some guns, I noticed that the one gun that Narciso Ramos used was a
.45 caliber.
Q Was it magazine or revolver?
A Magazine type.
Q After Narciso Ramos shot the victim 7 times on the head, what happened next?
A When the group made sure that the victim was dead already, they untied him and brought the body where
there was a pile of tires, piles of pieces of rubber tires.
Q By the way, at the time when the victim was shot by Narciso Ramos and stabbed by Ramon San Roque,
where was Willy Ramos, Narciso Ramos and Eulalia San Roque?
A They were just there standing and afterwards, turned their back around.
xxx
Prosecutor:
Q How far was Eulalia San Roque from Lomida when Lomida was shot by Narciso Ramos and stabbed by
Ramon San Roque?
A This place up to that wall. Distance of about 8 meters.
Q And what was Eulalia doing at the time when the victim was stabbed and shot?
A She turned her back and face the kitchen of the house of Narciso Ramos.
Q Did she not try to intervene, this Eulalia, being the live-in partner of William Lomida or did not exert effort
to pacify?
xxx
Prosecutor:
Q Just turning her back, what else that she did, being live-in partner of William Lomida?
A She did not do anything anymore.
Q After the victim was stabbed and shot, he was untied from the santol tree. Who untied him?
A It was Ramon San Roque, Willy Ramos and the three others.
Q Willy refers to Wilfredo Ramos?
A Yes, sir.
Q Where was Eulalia at the time?
A She was still there standing.
Q Now, you said after the victim was untied from the santol tree, he was brought to where pieces of rubber
tires were piled, recycled, how far is this from the santol tree where the victim was tied?
A About 25 meters.
Q Now, after the accused brought the victim to the piles of recycled tires, what happened next?
A Ramos San Roque got a can and poured something on the body of the victim and then, lighted it up.
Q What happened to the body of the victim, William Lomida?
A The body was burned.
 Q At the time when this Ramon San Roque poured something on the body of the victim and then lighted the
same, where were Wilfredo Ramos, Eulalia San Roque and Narciso Ramos and the other unidentified
persons?
A There were They were there in front of the burning body.
Q How long did the fire last?
A It took a long time, about more than one hour.
Q After one hour, what happened next?
A They left the place. The group left the place.
Court:
Q What happened to the tires?
A The tires also burned.
Q And where was the body of Lomida in relation to the tires?
A The body of the victim was almost burned and when we went back to the place, the shape of the charred
was still there. The same of human body.[5]
The foregoing testimony clearly shows that Ambal, being then present at the locus of the crime, was able to
identify the appellant and the other accused as the persons who killed William. Ambal narrated the incidents leading to
the victim's death with clarity and lucidity that they could not have been fabricated or concocted. The records show that
throughout the trial, he remained steadfast in his testimony. There is thus no doubt in our minds that this lone
eyewitness is credible. While his testimony is uncorroborated, still it sustains the conviction of appellant. In People vs.
Toyco,[6] we held:

It is axiomatic that truth is established not by the number of witnesses but by the quality of their testimonies. The testimony of a
single witness if positive and credible is sufficient to support a conviction even in charge of murder.

We are not persuaded by appellants contention that the prosecution failed to adduce sufficient evidence to
establish the existence of conspiracy among the accused. She vigorously contends that she did not participate in the
killing of the victim.
In determining the existence of conspiracy, it is not necessary to show that all the conspirators actually hit and
killed the victim.[7] The presence of conspiracy among the accused can be proven by their conduct before, during or
after the commission of the crime showing that they acted in unison with each other, evincing a common
purpose or design. There must be a showing that appellant cooperated in the commission of the offense, either
morally, through advice, encouragement or agreement or materially through external acts indicating a manifest intent
of supplying aid in the perpetration of the crime in an efficacious way. In such case, the act of one becomes the act of
all, and each of the accused will thereby be deemed equally guilty of the crime committed. [8]
The series of events in this case convincingly show that appellant and her co-accused acted in unison and
cooperated with each other in killing William Lomida. Appellant was the one who opened the door and allowed the other
accused to enter the house. She joined them in bringing the victim to the residence of Narciso Ramos, her brother-in-
law. While her co-accused dragged the helpless victim, tied him to a santol tree, stabbed him twice by a bladed knife,
and shot him 5 to 7 times, appellant merely watched intensely. She even turned her back as the lifeless body of the
victim was being burned. And after attaining their purpose, she fled with the other accused.
The above circumstances clearly show the common purpose and concerted efforts on the part of appellant and
her co-accused. We agree with the trial court in concluding that their acts were indications of a criminal conspiracy to
commit the crime of murder.
The only remaining question is whether the crime was attended by aggravating circumstances.
The killing of the victim was attended by treachery. Treachery exists when the offender commits a crime against
persons, employing means, methods or forms in the execution thereof which tend directly and specifically to insure its
execution, without risk to himself arising from any defense or retaliatory act which the victim might make. [9] Here,
appellant and her co-accused tied William to a santol tree before they stabbed and shot him to death, thus, insuring
the execution of the crime without risk to themselves. Obviously, he could not retaliate. This aggravating circumstance
qualifies the crime to murder.
 However, we cannot sustain the trial courts appreciation of the aggravating circumstance of superior strength as
this is absorbed in treachery.[10]
It bears stressing that this crime of murder was committed on February 11, 1993.[11] The law applicable is Article
248 of the Revised Penal Code then penalizing murder with reclusion temporal in its maximum period to death. Under
Article 64 (1) of the Revised Penal Code, in cases in which the penalties prescribed by law contain three periods,
whether it be a single divisible penalty or composed of three different penalties, and there are neither aggravating nor
mitigating circumstances that attended the commission of the crime, the penalty prescribed by law in its medium period
shall be imposed.
The range of the imposable penalty, i.e., reclusion temporal in its maximum period to death, is 17 years, 4 months
and 1 day to death. Applying the Indeterminate Sentence Law, and there being no aggravating or mitigating
circumstance that attended the commission of the crime, the maximum period is the medium of the imposable penalty,
which is reclusion perpetua.The minimum period is one degree lower, or prision mayor in its maximum period
to reclusion temporal in its medium period, the range of which is 10 years and 1 day to 17 years and 4 months. The
minimum period of the penalty imposable is anywhere within this range, or 10 years and 1 day. Hence, appellant should
be sentenced to 10 years and 1 day of prision mayor, as minimum, to reclusion perpetua, as maximum.
Regarding damages, the trial court correctly awarded P50,000.00 as civil indemnity to the victims heirs. When
death occurs as a result of a crime, appellant should be ordered to pay the heirs of the victim P50,000.00 as civil
indemnity, without need of any evidence or proof of damages. [12]
We likewise award temperate damages, in lieu of actual damages. Here, the prosecution failed to present any
proof of the expenses incurred by the victims heirs. However, as they actually incurred funeral expenses, we
award P25,000.00 by way of temperate damages.[13]
Anent moral damages, we award the victims heirs the amount of P50,000.00.[14] For verily, moral damages are
not intended to enrich the victims heirs; rather they are awarded to allow them to obtain means for diversion that could
serve to alleviate their moral and psychological sufferings. [15] Mariano Lomida, victims father, equivocally described
how he suffered untold wounded feelings for the loss of his son.
We also award the victims heirs P25,000.00 as exemplary damages. This is pursuant to our ruling in People vs.
Catubig[16] that if a crime is committed with an aggravating circumstance, either qualifying or generic, an award
of P25,000.00 as exemplary damages is justified.
WHEREFORE, the assailed Decision dated April 24, 1998 of the Regional Trial Court, Branch 122, Caloocan
City, in Criminal Case No. C-46010, is hereby AFFIRMED with MODIFICATION in the sense that appellant EULALIA
SAN ROQUE DE FRANCISCO is sentenced to suffer the penalty of 10 years and 1 day of prision mayor, as minimum,
to reclusion perpetua, as maximum. She is ordered to pay the victims heirs (a) P50,000.00 as civil indemnity;
(b) P25,000.00 as temperate damages; (c) P50,000.00 as moral damages and (d) P25,000.00 as exemplary damages.
Costs de oficio.
SO ORDERED.
Vitug, (Chairman), Corona and Carpio-Morales, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AURELIO LAMAHANG, defendant-appellant.

Honesto K. Bausa for appellant.

Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo,
finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision
correccional and to an additional penalty of ten years and one day of prision mayor for being an habitual delinquent,
with the accessory penalties of the law, and to pay the costs of the proceeding.

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.

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 attempt to commit an indeterminate offense,
inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the 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 violence, passing through the opening which he had started to make on the wall, in order to commit an offense
which, due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its execution. But it
is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere
beginning of execution; it is necessary to establish its unavoidable connection, like the logical and 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 by the Code; it is necessary to prove that said beginning of execution, if carried to its complete
termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance
of the perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in order that
the simple act of entering by means of 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 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 fact established and stated in the decision, that the
accused on the day in question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may
only be inferred as a logical conclusion that his evident intention was to enter by means of force said store against the
will of its owner. That his final objective, once he succeeded in entering the store, 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.1avvphil.ñet

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 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

EN BANC

G.R. No. L-36461 June 29, 1984

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HERNANDO DIO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Luis R. Feria for accused-appellant.

ABAD SANTOS, J.:

Automatic review of a decision of the defunct Circuit Criminal Court, 7th Judicial District, which imposed the death
penalty.

An information for robbery with homicide was filed on October 1, 1971, against Danilo Tobias and a John Doe. The
order to arrest Tobias was returned unserved and he is still on the "Wanted Persons Files."

On December 7, 1971, the information was amended to name Hernando Dio as the John Doe, the appellant herein.
As amended, the information reads:

That on or about the 24th day of July 1971, in Pasay City, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused Danilo Tobias @ Danny Kulot and Hernando
Dio @ Way Kaon, conspiring and confederating together and mutually helping one another, with
intent to gain and without the knowledge and consent of the owner, and with the use of 'balisong',
one of the accused was provided with, and by means of force, threats and intimidation employed
upon the latter, did then and there wilfully, unlawfully and feloniously take, steal and rob away from
one Crispulo P. Alega, one Seiko brand men's wrist watch (recovered); and the said accused in
accordance with and pursuant to their conspiracy, and in order to carry out their avowed purpose,
with intent to kill did then and there wilfully, unlawfully and feloniously attack, assault and stab for
 several times Crispulo P. Alega, and which "balisong" was directly aimed at the vital portions of the
body of said Crispulo P. Alega, thus performing all the acts of execution causing his instantaneous
death. (Expediente, p. 68.)

Accused Hernando Dio pleaded not guilty when he was arraigned and after trial the court rendered the following
judgment:

WHEREFORE, finding the accused, Hernando Dio, Guilty, beyond reasonable doubt, of the crime
of Robbery with Homicide as defined under Article 294 of the Revised Penal Code, as charged in
the Amended Information, the Court hereby sentences him to suffer the penalty of DEATH; to
indemnify the heirs of the victim, Crispulo Alega the amount of P12,000.00; to pay moral damages
in the amount of P10,000.00 and another P10,000.00, as exemplary damages; and to pay the
costs. (Id., pp. 105-106.)

The People's version of the facts is as follows:

At about noontime on July 24, 1971, Crispulo Alega, a civil engineer by profession working at the
Sugar Construction Company, with a salary of more than P500.00 a month went to the
Southeastern College, Pasay City to fetch his girlfriend, Remedios Maniti, a third year high school
student thereat (pp. 55, 59, 63-64, 11 1973). They proceeded to the Pasay City Public Market. As
they were going up the stairs leading to the Teresa and Sons Restaurant, Remedios, who was was
about an arms-length ahead of Crispulo suddenly heard the dropping of her folders and other
things, being carried by Crispulo. When she looked back, she saw a man — later Identified as
Danilo Tobias but still at large — twisting the neck of Crispulo, while the appellant was holding his
(Crispulo's) two hands (pp. 56-57, 61, tsn., Id.). The appellant and his companion tried to divest
Crispulo of his "Seiko" wrist watch, but Crispulo resisted their attempt and fought the robbers. At
this juncture, the man who was twisting the neck of Crispulo stabbed the latter on the left side of his
chest. Crispulo ran down the stairs followed by Remedies who shouted for help. When he reached
the front of the Pasay Commercial Bank he fell down and expired. At the time of his death, the
"Seiko" watch was strapped to his wrist. (pp. 57-61, tsn., Id., pp. 7-9, tsn., Jan. 22, 1973).lwphl@itç

An autopsy conducted on the victim's body by Dr. Ricardo Ibarola medicolegal officer of the NBI
revealed that the cause of death was a stab wound at the region below his left breast which
penetrated the heart. Said doctor opined that judging from the natural appearance of the stab
wound, it must have been caused by a single-bladed pointed instrument (pp. 6, 13-14, tsn., Jan.
11, 1973; Exh. C and C-1, p. 87, rec.). The necropsy report (Exh. A, p. 85, rec.) stated that the
decease sustained the following injuries:

Abrasions: right zygomatic region, 0.6 x 0.4 infralabial region, right side 1.7 x 1.4
come forearm right, upper third, posterolateral aspect, 0.6 x 0.4 clean and left,
lower third, posterior aspect, 0.4 x 0.2 come right knee, 0.6 x 0.4 come right leg,
upper third, anterior aspect, 1.4 x 0.8

Incise wounds, neck, left supers-lateral aspect, two in number, 2.5 and 1.2 crime
in lengths, both superficial

Stab wound: left inframammary region, level of the 5th intercostal space along
the parasternal line, 6.0 cm. from the anterior midline, 0.5 crime below the left
nipple, elliptical in shape, 3.0 cm. long extended laterally by 3.0 crime long rising
slightly downwards, medially edges, clean cut, sutured, medial extremity of which
is blunt and lateral extremity, sharp; directed upwards, medially and backwards
involving, among others, the soft tissues, thru the 5th intercostal muscles,
grazing the 6th rib superiorly, perforating the left pleural cavity only, into the
middle mediastinum by penetrating the pericardium antero-inferiorly, perforating
the interventricular system and penetrating the left ventricle of the heart at its
apical portions, approximate depth 11.0 cm.

After the appellant's arrest on October 24, 1972, he was investigated at the Detective Bureau of the
Pasay City Police Department and gave a statement (Exh. D, p. 90, rec.) in the presence of Pat.
 Arturo Rimorin admitting that on the date and nine of the incident, he and his co-accused, Danilo
Tobias administrative Kardong Kaliwa alias Danny Kulot, held up a man and a woman; that they did
not get the watch of the man; that he held the victim's hands but the latter was able to free himself;
that Danny Kulot stabbed the man, that when the victim ran, they also ran away; and that he did not
know what happened to the victim (Exhs. D, D-1, D-2, D-3, D-4 and D-5, p. 90, rec.; pp. 27-3 1,
tsn., Jan. 11, 1973). (Brief, pp. 2-6.)

Atty. Luis R. Feria, counsel de oficio of the appellant, states:

After a careful, considered and conscientious examination of the evidence adduced in the instant
case, undersigned counsel is constrained to conclude that the findings of fact of the trial court,
upholding the version of the prosecution as against that of the defense, must have to be sustained.
As against the sole and uncorroborated testimony of appellant merely denying any participation in
the commission of the crime imputed to him (while admitting that he was present at the scene of
the crime), there is a formidable array of evidence against him consisting of the clear and
convincing testimony of Remedios Maniti, who was in the company of the deceased at the time he
was killed and an eyewitness to the entire incident; the extra-judicial written confession of
defendant-appellant (Exhibit D) admitting participation in the commission of the crime; the
testimony of Patrolman Arturo Rimorin who conducted the investigation of, and before whom
Exhibit D was executed and signed by, defendant- appellant, as well straight the testimony of Sgt.
Geronimo de los Santos of the Pasay Police to whom defendant-appellant orally admitted that he
held the victim's hands although he had no part in the actual stabbing of the deceased.

With respect to the testimony of the eyewitness Remedios Maniti there is absolutely nothing in the
record (except perhaps that she was the sweetheart of the deceased) to show, or even hint, that
she had any reasons to perjure herself by falsely incriminating defendant-appellant in such a
grievous crime, no bias, interest or prejudice against the latter as would move or induce her to
faithlessly accuse him of a crime which he had not committed. More than ever, the time-honored
ruling of this Honorable Court, too elemental to require citations, that the findings of the trial court
on the question of credibility of the witnesses, having had the advantage of observing their
demeanor and manner of testifying, should not be disturbed in the absence of strong and cogent
reasons therefor, applies fully to the case at bar. No such reasons can be found herein.

The same observations may be made with respect to the testimonies of Patrolman Rimorin and
Sgt. de los Santos. Moreover, as has been held by this Honorable Court, where the prosecution
witnesses, being government employees who testified as to what transpired in the performance of
their duties, were neutral and disinterested and had no reason to falsely testify against the
accused, and did not subject him to any violence, torture or bodily harm, their testimonies should
be given more weight than that of the accused (P. v. Pereto, 21 SCRA 1469: P. v. Del Castillo, 25
SCRA 716.)

Then there is the extrajudicial confession of defendant-appellant, Exhibit D. True it is that, belatedly
during the trial, appellant claimed that his answers appearing in Exhibit D were given because he
was afraid as he was intimidated and struck on the buttock with a long piece of wood (pp. 32-34,
t.s.n. Ses. of January 22, 1973). It is submitted that this last-minute, desperate and uncorroborated
claim falls flat in the face not only of the presumption of voluntariness in the execution of
confessions, but also of the testimony of Patrolman Rimorin to the effect that Exhibit D was
executed voluntarily and that defendant-appellant was never maltreated (pp. 26, 31-32, t.s.n. Ses.
of January 11, 1973), and the latter's own admission that before he signed Exhibit D, its contents
were first read to him in Tagalog and that he fully understood the same (pp. 24, t.s.n. Ses. of
January 22, 1973), and his further admission that he has not filed any case against those who had
allegedly maltreated him (p. 33, t.s.n,Id.). Moreover, where the alleged confession reveals
spontaneity of the declarations belying the claim that they were concocted or dictated by the police,
the court win reject the case that the confession was involuntary (P. v. Castro, 11 SCRA
699).lwphl@itç (Brief, pp. 3-5.)

Notwithstanding the foregoing factual admission, Atty. Feria makes the following assignment of errors:
 1. THE TRIAL COURT ERRED IN CONVICTING DEFENDANT- APPELLANT OF THE SPECIAL
COMPLEX CRIME OF ROBBERY WITH HOMICIDE AS DEFINED AND PENALIZED UNDER
ART. 294, PAR. 1, OF THE REVISED PENAL CODE.

2. EVEN ASSUMING THAT THE CRIME COMMITTED BY DEFENDANT-APPELLANT IS

ROBBERY WITH HOMICIDE, THE TRIAL COURT ERRED IN SENTENCING HIM TO SUFFER
THE DEATH PENALTY.

We have scrutinized the record, particularly the testimonial evidence, and indeed there is no doubt that the appellant
had a hand in the death of Crispulo Alega. There remains to be considered, however, the claims of the appellant
which are made in the assignment of errors.

The appellant claims in his first assignment of error that he should not have been convicted of the special complex
crime of robbery with homicide because the robbery was not consummated. He states that there was only an
attempted robbery.

The Solicitor General states:

... We are constrained to agree with defense' contention. The evidence adduced show that the
appellant and his companion were unsuccessful in their criminal venture of divesting the victim of
his wrist watch so as to constitute the consummated crime of robbery. Indeed, as adverted to
earlier, when the victim expired, the 'Seiko' watch was still securely strapped to his wrist (p. 59,
t.s.n., Jan. 11, 1973). The killing of Crispulo Alega may be considered as merely incidental to and
an offshoot of the plan to carry out the robbery, which however was not consummated because of
the resistance offered by the deceased. Consequently, this case would properly come under the
provision of Art. 297 of the Revised Penal Code which states that —

When by reason or on occasion of an attempted or frustrated robbery a homicide

is committed, the person guilty of such offenses shall be punished by reclusion
temporal in its maximum period to reclusion perpetua, unless the homicide
committed shall deserve a higher penalty under the provisions of this Code.
(Brief, pp. 5-6.)

In his second assignment of error the appellant claims that the information does not allege any aggravating
circumstance nor was any proved during the trial.

Again the Solicitor General states:

We likewise agree with the contention of counsel in his second assigned error that the evidence
presented by the prosecution did not show the attendance of any aggravating circumstance in the
commands of the crime and neither did the court a quo make any finding in this respect (pp. 7-8,
appellant's brief). (Id, p. 6.)

The crime committed by the appellant is attempted robbery with homicide and the penalty prescribed by law is
reclusion temporal in its maximum period to reclusion perpetua. Since there was no attendant mitigating nor
aggravating circumstance, the penalty should be applied in its medium period, i.e. 18 years, 8 months and 1 day to
20 years. The Indeterminate Sentence Law has also to be applied.

WHEREFORE, the judgment of the trial court is hereby modified; the appellant is found guilty beyond reasonable
doubt of the special complex crime of attempted robbery with homicide and he is sentenced to suffer an
indeterminate penalty of 10 years and 1 day of prision mayor as minimum to 20 years of reclusion temporal as
maximum, to indemnify the heirs of Crispulo Alega in the amount of P30,000.00, and to pay one-half of the costs. SO
ORDERED.

Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Escolin, Relova,
Gutierrez, Jr., De la Fuente and Cuevas, 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 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; and

3) to pay the costs.

Likewise, in the two murder cases, Trinidad is accordingly sentenced:

1) to a penalty of Reclusion Perpetua in each case;

2) to indemnify the heirs of Marcial Laroa and Lolito Soriano the amount of P30,000.00 each; and

3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo).

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 witness. That is not so.

We find no variance in the statement made by TAN before the NAPOLCOM Hearing Officer that when TRINIDAD
boarded the Fiera in Buenavista, he (TAN) was not in the vehicle, and that made in open Court when he said 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 was still in Langihan distributing fish. The Fiera left for Buenavista, driven by 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 Buenavista, TAN was not yet in that vehicle although on the return trip from Butuan City to
Davao City, TAN was already on board. In fact, TAN was the one driving. TAN's testimony clarifying this point reads:

Q Did you not say in your direct examination that you went to
Buenavista, Agusan del Norte?

A We were in Langihan and since our fishes were not

consumed there, we went to Buenavista.

Q Now, what time did you leave for Buenavista from Langihan?

A It was more or less at 6:00 to 7:00 o'clock.

Q You were riding the fish car which you said?

A I was not able to take the fish car in going to Buenavista

because they left me fishes to be dispatched yet.

Q In other words, you did not go to Buenavista on January 20,

1983?

A I was able to go to Buenavista after the fishes were

consumed.

Q What time did you go to Buenavista?

A It was more or less from 11:00 o'clock noon.

Q What transportation did you take?

A I just took a ride with another fish car because they were
also going to dispatch fishes in Buenavista.

Q Now, who then went to Buenavista with the fish car at about
7:00 o'clock in the morning of January 20, 1983?

A Lolito Soriano and Marcia Laroa with his helper.

xxxxxx

Q Now, when this fish car returned to Butuan City who drove
it?

A Lolito Soriano.

Q Were you with the fish car in going back to Langihan?

 A Yes, sir. (T.S.N., December 6, 1985, pp. 53-54).

Felimon Comendador, also a fish vendor, and a resident of Butuan City, testified that he saw TRINIDAD riding in the
Fiera on the front seat in the company of TAN, SORIANO and LAROA, when the Fiera stopped by his house at
Butuan City (TSN, November 5, 1985, pp. 32-33).

The other inconsistencies TRINIDAD makes much of, such as, that TAN was unsure before the NAPOLCOM Hearing
Officer whether TRINIDAD was wearing khaki or fatigue uniform but, in open Court, he testified positively that
TRINIDAD was in khaki uniform; and that while TAN declared that TRINIDAD was wearing a cap, prosecution
witness Felimon Comendador 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 has made nor detract from the latter's overall credibility.

Nor is there basis for TRINIDAD to contend that the absence of gunpowder burns on the deceased victims negates
TAN's claim that they were shot "point-blank." Actually, this term refers merely to the "aim directed straight 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 fact, it matters not how far the assailant was at the time he shot the victims, the crucial factor
being whether he did shoot the victim or not.

TRINIDAD's defense of alibi is inherently weak and cannot prevail over the straightforward and detailed descriptive
narration of TAN, thus:

Q Now, from Butuan City, where did you proceed?

A We proceeded to Davao.

Q Did you in fact reach Davao on that date?

A No, sir.

Q Could you tell the Court why you failed to reach Davao?

A Because we were held-up.

Q Who held-up you?

A Emeliano Trinidad, sir.

Q Are you referring to accused Emeliano Trinidad whom you

pointed to the court awhile ago?

A Yes, sir.

Q Will you tell the Court how did Emeliano Trinidad holdup
you?

A When we reach between El Rio and Afga, Trinidad advised

us to run slowly because this place is dangerous. Then
suddenly there were two gun bursts.

Q Now, you heard two gun bursts. What happened? What did
you see if there was any?

A I have found out that Lolito Soriano and Marcial Laroa

already fall.
Q Fall dead?

A They were dead because they were hit at the head.

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.

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.

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, 1987). With no
attending mitigating or aggravating circumstance, said 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 degree for purposes of
the Indeterminate Sentence Law is prision mayor, 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).

WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of Murder (on two counts) and Attempted
Murder, having been proven beyond reasonable doubt, his conviction is hereby AFFIRMED and he is hereby
sentenced as follows:

1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99 below) for Murder, he shall suffer the
indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to eighteen
(18) years, eight (8) months and one (1) day of reclusion temporal, as maximum; to indemnify the
heirs of Marcial Laroa and Lolito Soriano, respectively, in the amount of P30,000.00 each; and to
pay the costs.

2) In Criminal Case No. 79125 (No. 100 below) for Frustrated Murder, he is hereby found guilty
only of Attempted Murder and sentenced to an indeterminate penalty of six (6) months and one (1)
day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as
maximum; to indemnify Ricardo Tan in the sum of P5,000,00; and to pay the costs.

SO ORDERED.

Paras, Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes

** Presided over by Judge Zenaida P. Placer.

KANING KAY CAMPUHAN DILI KO SUE OF COMPLETE NI SIYA BUT MA NI ANG NIGAWAS TAS WALAY SA LAWPHIL GKAN AN
RESULT
 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[1] finally did away with frustrated rape[2] and allowed only attempted rape
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.[3] The inference that may be derived therefrom is that 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.,[4] the crucial doctrinal bottom line 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 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,[5] hence this case before us on 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!"[7] prompting Corazon to rush upstairs. 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. [8] Seconds later, Primo
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.[9] He asserted that in truth Crysthel was in 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 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.[10] But the act of touching should be understood here as inherently part of the entry of the penis into
the labias of the female organ and not mere touching alone of the mons pubis or the pudendum.
In People v. De la Pea[11] we clarified that the decisions 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,[12] or that the penis of the accused touched the middle part of her vagina.[13] Thus, touching when applied to
rape 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.[14] As 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.[15] Jurisprudence dictates that the labia majora must be entered for rape to be consummated,[16] and 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 pudendumby 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,"[17] but
has also progressed into being described as "the introduction of the male organ into the labia of the pudendum,"[18] or
"the bombardment of the drawbridge."[19] But, to our mind, the case at bar merely 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 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 -

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]

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,[21] obviously induced by a question propounded 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.[22] Corazon did not say,
nay, not even hint that Primo's penis was erect or that he responded with an erection. [23] On the contrary, Corazon
even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection
to be able to penetrate his victim.

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; [24]consequently, she did not feel any intense
pain but just felt "not happy" about what Primo did to her. [25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray 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.[26] None was shown in this case. 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 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.

[1] People v. Ceilito Orita alias "Lito," G.R. No. 88724, 3 April 1990, 184 SCRA 105.
[2] People v. Eriia, 50 Phil. 998 (1927)
[3] See Note 1.
[4] People v. Quinaola, G.R. No. 126148, 5 May 1999.
[5] Decision penned by Judge Benjamin T. Antonio, RTC-Br. 170, Malabon, Metro Manila (Crim. Case No. 16857-MN)
[6] An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, as

amended, other Special Penal Laws, and for Other Purposes, effective on 31 December 1993.
[7] "Ayoko," apparently is a contraction of "ayaw ko." "Ayoko, ayoko" means "I dont like, I dont like."
[8] Corazons brother Vicente Plata responded to her call, as well as others living within the compound namely, Criselda Carlos

Manalac, Fernando Bondal, Jose Carlos and Reynoso Carlos.

[9] Accused alleged that the charge of rape was merely concocted by Ma. Corazon Pamintuan because of his refusal to buy

medicine for her, and perform the other tasks asked of him by her relatives.
[10] See the following American cases where the doctrine originated: Kenny v. State, 65 L.R.A. 316; Rodgers v. State, 30 Tex.

App. 510; Brauer v. State, 25 Wis. 413, as cited in People v. Oscar, 48 Phil. 528 (1925)
[11] G.R. No. 104947, 30 June 1994, 233 SCRA 573.
[12] People v. Bacalso, G.R. No. 89811, 22 March 1991, 195 SCRA 557; People v. Hangdaan, G.R. No. 90035, 13 September

1991, 201 SCRA 568; People v. De la Pea, G.R. No. 104947, 30 June 1994, 233 SCRA 573; People v. Clopino, G.R. No.
117322, 21 May 1998, 290 SCRA 432; People v. Quinaola, G.R. No. 126148, 5 May 1999.
[13] People v. Navarro, G.R. No. 96251, 11 May 1993, 221 SCRA 684.
[14] In People v. Quinaola (G.R. No. 126148, 5 May 1999) the Court held the word "touching" to be synonymous with the entry

by the penis into the labia declaring that "x x x the crime of rape is deemed consummated even when the mans penis merely
entered the labia or lips of the female organ, or as once said in a case, by the mere touching of the external genitalia by the penis
capable of sexual act x x x x"
[15] Mishell, Stenchever, Droegemueller, Herbst Comprehensive Gynecology, 3rd Ed., 1997, pp. 42-44.
[16] People v. Escober, G.R. Nos. 122980-81, 6 November 1997, 281 SCRA 498; People v. Galimba, G.R. Nos. 111563-64, 20

February 1996, 253 SCRA 722; People v. Sanchez, G.R. Nos. 98402-04, 16 November 1995, 250 SCRA 14; People v.Lazaro,
G.R. No. 99263, 12 October 1995, 249 SCRA 234; People v. Rejano, G.R. Nos. 105669-70, 18 October 1994, 237 SCRA 627;
People v. Salinas, G.R. No. 107204, 6 May 1994, 232 SCRA 274; People v. Palicte, G.R. No. 101088, 27 January 1994, 229
SCRA 543; People v. Arce, G.R. Nos. 101833-34, 20 October 1993, 227 SCRA 406; People v. Garcia, G.R. No. 92269, 30 July
1993, 244 SCRA 776; People v. Tismo, No. L-44773, 4 December 1991, 204 SCRA 535; People v. Mayoral, G.R. Nos. 96094-
95, 13 November 1991, 203 SCRA 528, People v. Hangdaan, G.R. No. 90035, 13 September 1991, 201 SCRA 568;
People v. Caballes, G.R. Nos. 93437-45, 12 July 1991, 199 SCRA 152; People v. Bacalso, G.R. No. 89811, 22 March 1991, 195
SCRA 557.
[17] People v. Clopino, G.R. No. 117322, 21 May 1998, 290 SCRA 432.
[18] See Note 4.
[19] People v. Escober, G.R. Nos. 122980-81, 6 November 1997, 281 SCRA 498.
[20] TSN, 7 October 1996, p. 20.
[21] In Dulla v. CA (G.R. No. 123164, 18 February 2000) the Court considered the testimony of a child aged three (3) years and

ten (10) months old sufficient and credible even if she answered "yes" or "no" to questions propounded to her. However, the
victim therein, who was much younger than Crysthel in the instant case, demonstrated what she meant when unable to articulate
what was done to her, even made graphic descriptions of the accuseds penis and demonstrated the push and pull movement made
by the accused. Yet conspicuously, the Court in the Dulla case found the accused guilty only of acts of lasciviousness on the basis
of certain inconsistencies in the testimony of the victim on whether or not petitioner took off her underwear.
[22] In People v. Clopino (G.R. No. 117322, 21 May 1998) the Court rejected the argument of the accused that he should only be

convicted of either attempted rape or acts of lasciviousness. It adopted the reasoning of the Solicitor General and declared that it
was impossible for the penis of accused-appellant not to have touched the labia of the pudendum in trying to penetrate her.
However, such logical conclusion was deduced in the light of evidence presented that accused-appellant made determined
attempts to penetrate and insert his penis into the victims vagina and even engaged her in foreplay by inserting his finger into her
genitalia. The same inference cannot be made in the instant case because of the variance in the factual milieu.
[23] Decisions finding the accused guilty of consummated rape even if the attacker's penis merely touched the female external

genitalia were made in the context of the presence of an erect penis capable of full penetration, failing in which there can be no
consummated rape (People v. De la Pea, see Note 11)
[24] See Note 16, p. 21.
[25] Ibid.
[26] People v. Villamayor, G.R. Nos. 97474-76, 18 July 1991, 199 SCRA 472; People v. Palicte, G.R. No. 101088, 27 January

1994, 229 SCRA 543; People v. Sanchez, G.R. Nos. 98402-04, 16 November 1995, 250 SCRA 14; People v. Gabris, G.R. No.
116221, 11 July 1996, 258 SCRA 663; People v. Gabayron, G.R. No. 102018, 21 August 1997, 278 SCRA 78.

[27]
Q: Will you tell the Court, what do you mean by this No. 1 conclusion appearing in Exhibit "A" which I quote "no evident
sign of extra-genital physical injury noted on the body of the subject at the time of the examination?"

A: That means I was not able to see injuries outside the genital of the victim, sir.

Q: I presumed (sic) that you conducted genital physical examination on the victim in this case?

A: Yes sir.

Q: And you also made the result of the genital physical examination shows (sic) that there is no injury on any part of the body of
the patient, correct, Doctor?

A: Yes sir.

Q: There was no medical basis for saying that might have a contact between the patient and the accused in this case?

A: Yes sir (TSN, 8 October 1996, pp. 3-4)

 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[1] for 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
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 beyond reasonable doubt, he is sentenced:

1. For the death of Jeonito Araque y Daniel in Criminal Case NO. 91-5842, RECLUSION PERPETUA;
 2. For the attempt to kill Marlon Araque y Daniel, in Criminal Case No. 91-5843, he is sentenced to six (6)
months and one (1) day as minimum, to four (4) years as maximum;
3. As civil indemnity, he is ordered to indemnify the heirs of Jeonito Araque y Daniel the sum[s] of :

P54,200.66 as actual damages;

P50,000.00 as moral damages;

P5,000.00 as exemplary damages.

4. And for the damages sustained by Marlon Araque y Daniel, he is required to pay Marlon Araque y Daniel,
the sum[s] of :

P5,000.00 as actual damages;

P5,000.00 as moral damages; and

P5,000.00 as exemplary damages

SO ORDERED.[4]

Dissatisfied, accused Agapito Listerio interposed this appeal alleging that

I

THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND
REASONABLE DOUBT.

II

THE COURT CONVICTED THE ACCUSED OF THE CRIME OF MURDER AND ATTEMPTED HOMICIDE
DESPITE ABSENCE OF PROOF OF CONSPIRACY AND AGGRAVATING CIRCUMSTANCE OF
TREACHERY.

The version of the prosecution of what transpired on that fateful day of August 14, 1991 culled from the eyewitness
account of Marlon Araque discloses that at around 5:00 p.m. of August 14, 1991, he and his brother Jeonito were
in Purok 4, Alabang, Muntinlupa to collect a sum of money from a certain Tino. [5] Having failed to collect anything from
Tino, Marlon and Jeonito then turned back.[6] On their way back while they were passing Tramo near 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 and bladed weapons.[10]
Agapito Listerio, Marlon dela Torre and George dela Torre, who were armed with bladed weapons, stabbed
Jeonito Araque from behind.[11] Jeonito sustained three (3) stab wounds on the 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 back [12] causing him to fall
down.[13] Marlon Araque was hit on the head by Samson dela Torre and Bonifacio Bancaya with lead pipes and
momentarily lost consciousness.[14] When he regained his senses three (3) minutes later, he saw that Jeonito was
already dead.[15] Their assailants then fled after the incident.[16] Marlon Araque who sustained injuries in the arm and
back,[17] was thereafter brought to a hospital for treatment.[18]
Marlon Araque was examined by Dr. Salvador Manimtim, head of the Medico Legal Division of the UP-
PGH, [19] who thereafter issued a Medical Certificate [20] indicating that Marlon Araque sustained two (2) lacerated
wounds, one measuring 5 centimeters in length located in the center (mid-parietal area) of the ear.[21] The second
lacerated wound measuring 2 centimeters in length is located at the mid-frontal area commonly known as the
forehead.[22] A third lacerated wound measuring 1.5 centimeters 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 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]

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 of the testimony of a single witness. [41]
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?
A Yes, sir.
Q And why do you know him?
A He is my brother.
Q Where is Jeonito Araque now?
A He is already dead.
Q When did he die?
A Last August 14.
Q Do you know of your own knowledge how he died?
A Yes, sir.
Q Will you please inform the Honorable Court what is your own knowledge?
A He was stabbed, sir.
Q Do you know the person or persons who stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who are these person or persons, if you know?
A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio.
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 Im in Alabang at Purok 4 and Im collecting.
Q Do you have any companion at that time?
A Yes, sir.
Q What are you doing at that time in [that] particular date?
A Im collecting from a certain Tino.
Q Were you able to collect?
A No, sir.
Q If you said that there were no collections, what did you do?
A We went back.
Q When you went back, did you have any companion?
A Yes, sir.
Q Who was your companion?
A My brother.
Q While you were going back, was there any untoward incidents that happened?
A Yes sir Hinarang po kami.
Q Now, what particular place [where] you were waylaid, if you recall?
A In Tramo, near Tinos place.
Q And who were the persons that were waylaid (sic)?
A Agapito Listerio, Samson dela Torre, George dela Torre and Bonifacio.
Q Will you please inform the Honorable Court how will (sic) you waylaid by these persons?
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 Agapito, Marlon and George.
COURT
How many stabbed [him], if you know?
A Three (3), sir.
COURT
In what particular part of his body was stabbed wound (sic)?
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)?
A No, sir.
Q And you stand to your testimony that you never drink (sic) on August 14, 1991?
A Yes, sir.
Q Were (sic) there no occasion on August 14, 1991 when you visited Sonny Sari-Sari Store at 4:00 p.m. on August
14, 1991?
A No, sir.
Q And did you not have a drinking spree with George dela Torre?
A No, sir.
Q Marlon dela Torre?
A No, sir.
Q Bonifacio?
A With your borther (sic)?
Q So you want to tell this Honorable Court that there was no point in time on August 14, 1991 at 4:00 p.m. that you
did not take a sip of wine?
A No, sir.
Q Neither your brother?
Atty. Agoot
Objection, Your Honor, the question is vague.
COURT
Ask another question.
Q Mr. Witness, will you please tell the Honorable Court where this George dela Torre, Marlon dela Torre and a
certain Bonifacio were?
Atty. Agoot
Witness is incompetent.
Q Mr. Witness, you testified that it was your brother the deceased who invited you to Purok 4?
A Yes, sir.
Atty. Lumakang
That will be all for the witness, your Honor.[44]
 That Marlon was able to recognize the assailants can hardly be doubted because relatives of the victim have a
natural knack for remembering the faces of the attackers and they, more than anybody else, would be concerned with
obtaining justice for the victim by the felons being brought to the face of the law. [45] Indeed, family members who have
witnessed the killing of a loved one usually strive to remember the faces of the assailants. [46] Marlons credibility cannot
be doubted in this case because as a victim himself and an eyewitness to the incident, it can be clearly gleaned from
the foregoing excerpts of his testimony that he remembered with a high degree of reliability the identity of the
malefactors.[47]
Likewise, there is no showing that he was motivated by any ill-feeling or bad blood to falsely testify against
accused-appellant. Being a victim himself, he is expected to seek justice. It 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 charges of wrongdoing upon
him.[48] Accused-appellant likewise insists on the absence of conspiracy and treachery in the attack on the victims.
We remain unconvinced.
It must be remembered that direct proof of conspiracy is rarely found for criminals do not write down their lawless
plans and plots.[49] Conspiracy may be inferred from the acts of the accused before, during and after the commission
of the crime which indubitably point to and are indicative of a joint purpose, concert of action and community of
interest.[50] Indeed

A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony
and decide to commit it. To establish the existence of a conspiracy, direct proof is not essential since it may be
shown by facts and circumstances from which may be logically inferred the existence of a common design
among the accused to commit the offense charged, or it may be deduced from the mode and manner in which
the offense was perpetrated.[51]

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
indirectcontribution 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 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]
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.

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 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.
Davide, Jr., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 166441 October 8, 2014

NORBERTO CRUZ y BARTOLOME, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

The intent of the offender to lie with the female defines the distinction between attempted rape and acts of
lasciviousness. The felony of attempted rape requires such intent; the felony of acts of lasciviousness does not. Only
the direct overt acts of the offender establish the intent to lie with the female. However, merely climbing on top of a
naked female does not constitute attempted rape without proof of his erectile penis being in a position to penetrate
the female's vagina.

The Case

This appeal examines the decision promulgated on July 26, 2004, 1 whereby the Court of Appeals (CA) affirmed the
conviction for attempted rape of the petitioner by the Regional Trial Court, Branch 34, in Balaoan, La Union (RTC),
and imposing on him the indeterminate penalty of imprisonment of four (4) years and two (2) months of prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum, and ordering him to pay moral damages
of ₱20,000.00 to AAA,2 the victim.

Antecedents

The petitioner was charged in the RTC with attempted rape and acts of lasciviousness involving different victims. At
arraignment, he pleaded not guiltyto the respective informations, to wit: Criminal Case No. 2388

Attempted Rape

That on or about the 21st day of December 1993, at about 2:00 o'clock in the morning, along the Bangar-Luna Road,
Barangay Central West No. 2, Municipality of Bangar,Province of La Union, Philippines and within the jurisdiction of
this Honorable Court, said accused, did then and there willfully, unlawfully and feloniously and by means of force and
intimidation commenced the commission ofrape directly byovert acts, to wit: While private complainant AAA, an
unmarried woman, fifteen (15) yearsold, was sleeping inside the tentalong Bangar-Luna Road, the said accused
remove her panty and underwear and lay on top of said AAA embracing and touching her vagina and breast with
intent of having carnal knowledge of her by means of force, and if the accused did not accomplish his purpose that is
to have carnal knowledge of the said AAA it was not because of his voluntary desistance but because the said
offended party succeeded in resisting the criminal attempt of said accused to the damage and prejudice of said
offended party.

CONTRARY TO LAW.3
Criminal Case No. 2389
Acts of Lasciviousness

That on or about the 21st day of December 1993, at about 3:00 o’clock in the morning, along the Bangar-Luna Road,
Barangay Central West No. 2, Municipality of Bangar, Province of La Union, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused with lewd design, did then and there willfully, unlawfully and
feloniously touch the vagina of [BBB]4 against the latter’s will and with no other purpose but to satisfy his lascivious
desire to the damage and prejudice of said offended party.

CONTRARY TO LAW.5

Version of the Prosecution

The CA summarized the version of the Prosecution as follows: 6

x x x [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were engaged in the selling of plastic wares and
glass wares in different municipalities around the country. On December 20, 1993, Norberto and Belinda employed
AAA and BBB to help them in selling their wares in Bangar, La Union which was then celebrating its fiesta. From
Libsong East, Lingayen, Pangasinan to Bangar, La Union, AAA and BBB boarded a passenger jeepney owned by
Norberto. The young girls were accompanied by Norberto, Belinda, Ruben Rodriguez (driver) and a sales boy by the
name of "Jess".

Upon reaching Bangar, La Union, at around 8:00 in the evening of December 20, 1993, they parked in front of
Maroon enterprises. They brought out all the goods and wares for display. Two tents were fixed in order that they will
have a place to sleep. Belinda and the driver proceeded to Manila in order to get more goods to be sold.

On December 21, 1993, at around 1:00 o’clock in the morning, AAA and BBB went to sleep. Less thanan hour later,
AAA was awakened when she felt that somebody was on top of her. Norberto was mashing her breast and touching
her private part. AAA realized that she was divested of her clothing and that she was totally naked. Norberto ordered
her not to scream or she’ll be killed. AAA tried to push Norberto away and pleaded to have pity on her but her pleas
fell on deaf ears. She fought back and kicked Norberto twice.

Norberto was not able to pursue his lustful desires. Norberto offered her money and told her not totell the incident to
her mother otherwise, she will be killed. AAA went out of the tent to seek help from Jess (the house boy) but she
failed to wake him up.

Thirty minutes later, when AAA returned to their tent, she saw Norberto touching the private parts of BBB. AAA saw
her companion awake but her hands wereshaking. When she finally entered the tent, Norberto left and went outside.

Later that day, AAA and BBB narrated to Jess the incident that took place that early morning. Later still, while they
were on their way to fetch water, AAA and BBB asked the people around where they can find the municipal building.
An old woman pointed to them the place.

In the evening of December 21, 1993, AAA and BBB went straight to the municipal hall where they met a policeman
by the name of "Sabas".

They told Sabas the sexual advances made to them by Norberto. Norberto was summoned to the police station
where he personally confronted his accusers. When Norberto’s wife, Belinda, arrived at the police station, an
argument ensued between them.

On December 22, 1993, at around 2:20 o’clock in the morning, the police investigator ordered the complainants to
return at6:00 o’clock in the morning. Norberto and Belinda were still able to bring AAA and BBB home with them and
worked for them until December 30, 1994, after which they were sent back to Lingayen, Pangasinan.

On January 10, 1994, AAA and BBB went back to La Union and executed their respective sworn statements against
Norberto.
 Version of the Defense

The petitioner denied the criminal acts imputed to him. His version was presented in the assailed decision of the
CA,7 as follows:

In a bid to exculpate himself, accused-appellant presents a totally different version of the story. The accused
maintains that it was not possible for him to commit the crimes hurled against him. On the date of the alleged
incident, there were many people around who were preparing for the "simbang gabi". Considering the location of the
tents, which were near the road and the municipal hall, he could not possibly do the dastardly acts out in the open,
not to mention the fact that once AAA and BBB would scream, the policemen in the municipal hall could hear them.
He believes that the reason why the complainants filed these cases against him was solely for the purpose of
extorting money from him.

Judgment of the RTC

After the joint trial of the two criminal cases, the RTC rendered its judgment on April 6, 2000 finding the petitioner
guilty beyond reasonable doubt of attempted rape in Criminal Case No. 2388 and acts of lasciviousness in Criminal
Case No. 2389,8 to wit:

WHEREFORE, in the light of the foregoing, the Court hereby renders judgment declaring the accused NORBERTO
CRUZ Y BARTOLOME guilty beyond reasonable doubt of the crimes of ATTEMPTED RAPE and ACTS OF
LASCIVIOUSNESS as defined and penalized in Article 335 in relation with (sic) Article 6, par. 3 and Article 336 of the
Revised Penal Code respectively. With respect to the crime of ATTEMPTED RAPE, the Court hereby sentences the
accused to suffer an indeterminate penalty of imprisonment from FOUR (4) YEARS and TWO (2) MONTHS PRISION
CORRECCIONAL as Minimum to TEN (10) YEARS PRISION MAYOR as Maximum and the accessory penalties
provided for by law and to pay the victim AAA the amount of ₱20,000.00 as moral damages.

With regard to the crime ofACTS OF LASCIVIOUSNESS, the Court hereby sentences the accused to suffer an
indeterminate penalty of imprisonment from FOUR (4) MONTHS ARRESTO MAYOR as Minimum to FOUR (4)
YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Maximum and the accessory penalties provided for
by law, and to pay the victim BBBthe amount of ₱10,000.00 as moral damages.

The preventive imprisonment suffered by the accused by reason of the two cases is counted in his favor.

SO ORDERED.9

Decision of the CA

On appeal, the petitioner contended that the RTC gravely erred in convicting him of attempted rape despite the
dubious credibility of AAA, and of acts of lasciviousness despite the fact that BBB did not testify.

On July 26, 2004, the CA promulgated its decision affirming the conviction of the petitioner for attempted rape in
Criminal Case No. 2388, but acquitting him of the acts of lasciviousness charged in Criminal Case No. 2389 due to
the insufficiency of the evidence,10 holding thusly:

In sum, the arguments of the accused-appellant are too puerile and inconsequential as to dent, even slightly, the
overall integrity and probative value of the prosecution's evidence insofar as AAA is concerned.

Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty lower by two (2)
degrees" prescribed by law for the consummated felony. In this case, the penalty for rape if it had been consummated
would have been reclusion perpetuapursuant to Article 335 of the Revised Penalty Code, as amended by Republic
Act No. 7659. The penalty two degrees lower than reclusion perpetuais prision mayor.

Applying the Indeterminate Sentence Law, the maximum term of the penalty shall be the medium period of prision
mayorin the absence of any mitigating or aggravating circumstance and the minimum shall be within the range of the
penalty nextlower to that prescribed for the offense which in this case is prision correccionalin any of its periods.
We also find that the trial court correctly assessed the amount of ₱20,000.00 by way of moral damages against the
accused-appellant. In a rape case, moral damages may be awarded without the need of proof or pleading since it is
assumed that the private complainant suffered moral injuries, more so, when the victim is aged 13 to 19.

Insofar as the crime of acts of lasciviousness committed against BBB, the accused argues that there is not enough
evidence to support such accusation. BBB did not testify and neither her sworn statement was formally offered in
evidence to support the charge for acts of lasciviousness.

In this case, the evidence adducedby the prosecution is insufficient to substantiate the charge of acts of
lasciviousness against the accusedappellant. The basis of the complaint for acts of lasciviousness is the sworn
statement of BBB to the effectthat the accused-appellant likewise molested her by mashing her breast and touching
her private part. However, she was not presented to testify. While AAA claims that she personally saw the accused
touching the private parts of BBB, there was no testimony to the effect that suchlascivious acts were without the
consent or against the will of BBB.11

Issues

In this appeal, the petitioner posits that the CA’s decision was not in accord with law or with jurisprudence,
particularly:

I. In giving credence to the incredulous and unbelievable testimony of the alleged victim; and

II. In convicting the accused notwithstanding the failure of the prosecution to prove the guilt of the petitioner
beyond reasonable doubt.

Anent the first issue, the petitioner assails the behavior and credibility of AAA. He argues that AAA still continued
working for him and his wife until December 30, 1994 despite the alleged attempted rape in the early morning of
December 21, 1994, thereby belying his commission of the crime against her; that he could not have undressed her
without rousing her if she had gone to sleep only an hour before, because her bra was locked at her back; that her
testimony about his having been on top of her for nearly an hour while they struggled was also inconceivable unless
she either consented to his act and yielded to his lust, or the incident did not happen at all, being the product only of
her fertileimagination; that the record does not indicate if he himself was also naked, or that his penis was poised to
penetrate her; and that she and her mother demanded from him ₱80,000.00 as settlement, under threat that she
would file a case against him.12

On the second issue, the petitioner assails the glaring inconsistencies in the testimony of AAA that cast doubt on her
veracity.

Ruling of the Court

The appeal is partly meritorious.

In an appeal under Rule 45 of the Rules of Court,13 the Court reviews only questions of law. No review of the findings
of fact by the CA is involved. As a consequence of thisrule, the Court accords the highest respect for the factual
findings of the trial court, its assessment of the credibility of witnesses and the probative weight of their testimonies
and the conclusions drawn from its factual findings, particularly when they are affirmed by the CA. Judicial experience
has shown, indeed, that the trial courts are in the best position to decideissues of credibility of witnesses, having
themselves heard and seen the witnesses and observed firsthand their demeanor and deportment and the manner of
testifying under exacting examination. As such, the contentionsof the petitioner on the credibility of AAA as a witness
for the State cannot beentertained. He thereby raises questions of fact that are outside the scope of this appeal.
Moreover, he thereby proposes to have the Court, which is not a trier of facts, review the entire evidence adduced by
the Prosecution and the Defense.

Conformably with this limitation, our review focuses only on determining the question of law of whether or not the
petitioner’s climbing on top of the undressed AAA such thatthey faced each other, with him mashing her breasts and
touching her genitalia with his hands, constituted attempted rape, the crime for which the RTC and the CA convicted
and punished him. Based on the information, supra, he committed such acts "with intent of having carnal knowledge
ofher by means of force, and if the accused did not accomplish his purpose that is to have carnal knowledge of the
said AAA it was not because of his voluntary desistance but because the said offended party succeeded in resisting
the criminal attempt of said accused to the damage and prejudice of said offended party."

There is an attempt, according to Article 6 of the Revised Penal Code, 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 this own spontaneous desistance. In People v.
Lamahang,14 the Court, speaking through the eminent Justice Claro M.Recto, eruditely expounded on what overt acts
would constitute anattempted felony, to wit:

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 attempt to commit an indeterminate offense,
inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal
Code. xxxx But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed
constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and
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 by the Code; it is necessary to prove that said beginning of execution, if carried to its
complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. x x x x.

"It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage iswanting, the
nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the
nature of the acts of execution (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 aswell
as a punishable act, must not and cannot furnish grounds by themselves for attempted or frustrated crimes. The
relation existing between the facts submitted for appreciation and the offense of which said facts are supposed to
produce must be direct; the intention must be ascertainedfrom the facts and therefore it is necessary, in order to
avoid regrettable instance 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, withoutthe intent to commit an offense, they would be meaningless." 15

To ascertain whether the acts performed by the petitioner constituted attempted rape, we have to determine the law
on rape in effect on December 21, 1993, when the petitioner committed the crime he was convicted of. That law was
Article 335 of the Revised Penal Code, which pertinently provided as follows:

Article335. 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 ofreason 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.

xxxx

The basic element of rape then and now is carnal knowledge of a female. Carnal knowledge isdefined simply as
"theact of a man having sexual bodily connections with a woman," 16 which explains why the slightest penetration of
the female genitalia consummates the rape. In other words, rape is consummated once the peniscapable of
consummating the sexual act touches the external genitalia of the female. 17 In People v. Campuhan,18 the Court has
defined the extent of "touching" by the penis in rape in the following terms:

[T]ouching when applied to rape 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 victim’s vagina, or the mons pubis, as in this case.
There must be sufficient and convincing proof that the penis indeedtouched 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 the
labias, which are required to be "touched" bythe penis, are by their natural situsor location beneath the mons pubisor
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 pudendumor vulvais 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 pubisis the rounded
eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia
majoraor 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 majorais the labia minora.
Jurisprudence dictates that the labia majoramust be entered for rape to be consummated, and not merely for the
penis to stroke the surface of the female organ. xxxx Thus, a grazing of the surface of the female organ or touching
the mons pubisof 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 pudendumby the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. [Bold emphasis supplied]

It is noteworthy that in People v. Orita,19 the Court clarified that the ruling in People v. Eriñia20 whereby the offender
was declared guilty of frustrated rapebecause of lack of conclusive evidence of penetration of the genital organ of the
offended party, was a stray decisionfor not having been reiterated in subsequent cases. As the evolving case law on
rape stands, therefore, rape in its frustrated stage is a physical impossibility, considering that the requisites of a
frustrated felony under Article 6 of the Revised Penal Codeare that: (1) 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. Obviously, the offender attains his purpose from the moment he has carnal knowledge of his victim,
because from that moment all the essential elements of the offense have been accomplished, leaving nothing more
to be done by him.21

Nonetheless, rape admits of an attempted stage. In this connection, the character of the overt actsfor purposes of the
attempted stage has been explained in People v. Lizada:22

An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense. The raison d’etrefor the law requiring a direct overtact is that,
in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must
be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or
an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long
as the equivocal quality remains, no one can say with certainty what the intent of the accused is.It is necessary that
the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the
"first or some subsequent step in a direct movement towards the commission of the offense after the preparations are
made." The act done need not constitute the last proximate one for completion. It is necessary, however, that the
attempt must have a causal relation to the intended crime. In the words of Viada, the overt acts must have an
immediate and necessary relation to the offense. (Bold emphasis supplied)

In attempted rape, therefore, the concrete felony is rape, but the offender does not perform all the acts of execution of
having carnal knowledge. If the slightest penetration of the female genitalia consummates rape, and rape in its
attempted stage requires the commencement of the commission of the felony directly by overt actswithout the
offender performing all the acts of execution that should produce the felony, the only means by which the overt acts
performed by the accused can be shown to have a causal relation to rape as the intended crime is to make a clear
showing of his intent to lie with the female. Accepting that intent, being a mental act, is beyond the sphere of criminal
law,23 that showing must be through his overt acts directly connected with rape. He cannot be held liable for
attempted rape withoutsuch overt acts demonstrating the intent to lie with the female. In short, the State, to establish
attempted rape, must show that his overt acts, should his criminalintent be carried to its complete termination without
being thwarted by extraneous matters, would ripen into rape,24 for, as succinctly put in People v. Dominguez,
Jr.:25 "The gauge in determining whether the crime of attempted rape had been committed is the commencement of
the act of sexual intercourse, i.e., penetration of the penis into the vagina, before the interruption."
The petitioner climbed on top of the naked victim, and was already touching her genitalia with his hands and mashing
her breasts when she freed herself from his clutches and effectively ended his designs on her. Yet, inferring from
such circumstances thatrape, and no other,was his intended felony would be highly unwarranted. This was so,
despite his lust for and lewd designs towards her being fully manifest. Such circumstances remained equivocal, or
"susceptible of double interpretation," as Justice Recto put in People v. Lamahang, supra, such that it was not
permissible to directly infer from them the intention to cause rape as the particular injury. Verily, his felony would not
exclusively be rapehad he been allowed by her to continue, and to have sexual congress with her, for some other
felony like simple seduction (if he should employ deceit to have her yield to him)26 could also be ultimate felony.

We clarify that the direct overt acts of the petitioner that would have produced attempted rape did not include
equivocal preparatory acts. The former would have related to his acts directly connected to rape as the intended
crime, but the latter, whether external or internal, had no connection with rape as the intended crime. Perforce, his
perpetration of the preparatory acts would not render him guilty of an attempt to commit such felony. 27 His
preparatory acts could include his putting up of the separate tents, with one being for the use of AAA and BBB, and
the other for himself and his assistant, and his allowing his wife to leave for Manila earlier that evening to buy more
wares. Such acts, being equivocal, had no direct connection to rape. As a rule, preparatory acts are not punishable
under the Revised Penal Codefor as long as they remained equivocal or of uncertain significance, because by their
equivocality no one could determine with certainty what the perpetrator’s intent really was.28

If the acts of the petitioner did not constitute attempted rape, did they constitute acts of lasciviousness?

It is obvious that the fundamental difference between attempted rape and acts of lasciviousness is the
offender’sintent to lie with the female. In rape, intent to lie with the female is indispensable, but this element is not
required in acts of lasciviousness.29 Attempted rape is committed, therefore, when the "touching" of the vagina by the
penis is coupled with the intent to penetrate. The intent to penetrate is manifest only through the showing of the penis
capable of consummating the sexual act touching the external genitalia of the female. 30 Without such showing, only
the felony of acts of lasciviousness is committed.31

Based on Article 336 of the Revised Penal Code, the felony of acts of lasciviousness is consummated whenthe
following essential elements concur, namely: (a) the offender commits any act of lasciviousness or lewdness upon
another person of either sex; and (b) the act of lasciviousness or lewdness is committed either (i) by using force or
intimidation; or (ii) when the offended party is deprived ofreason or is otherwise unconscious; or (iii) when the
offended party is under 12 years of age.32 In that regard, lewdis defined as obscene, lustful, indecent, lecherous; it
signifies that form of immorality that has relation to moral impurity; or that which is carried on a wanton manner. 33

The information charged that the petitioner "remove[d] her panty and underwear and la[id] on top of said AAA
embracing and touching her vagina and breast." With such allegation of the information being competently and
satisfactorily proven beyond a reasonable doubt, he was guilty only of acts of lasciviousness, not attempted rape. His
embracing her and touching her vagina and breasts did not directly manifest his intent to lie with her. The lack of
evidence showing his erectile penis being in the position to penetrate her when he was on top of her deterred any
inference about his intent to lie with her. At most, his acts reflected lewdness and lust for her.

The intent to commit rape should not easily be inferred against the petitioner, even from his own declaration of it, if
any, unless he committed overt acts directly leading to rape. A good illustration of this can be seen in People v.
Bugarin,34 where the accused was charged with attempted rape through an information alleging that he, by means of
force and intimidation, "did then and there willfully, unlawfully and feloniously commence the commission of the crime
of Rape directly by overt acts, by then and there kissing the nipples and the vagina of the undersigned [complainant],
a minor, and about to lay on top of her, all against her will, however, [he] did not perform all the acts of execution
which would have produced the crime of Rape by reason of some causes other than his own spontaneous
desistance, that is, undersigned complainant push[ed] him away." The accused was held liable only for acts of
lasciviousness because the intent to commit rape "is not apparent from the actdescribed," and the intent to have
sexual intercourse with her was not inferable from the act of licking her genitalia. The Court also pointed out that the
"act imputed to him cannot be considered a preparatory act to sexual intercourse." 35

Pursuant to Article 336 of the Revised Penal Code, the petitioner, being guilty of acts of lasciviousness, is punished
with prision correccional. In the absence of modifying circumstances, prision correccional is imposed in its medium
period, which ranges from two (2) years, four (4) months and one day to four (4) years and two (2) months. Applying
the Indeterminate Sentence Law, the minimum of the penalty should come from arresto mayor, the penalty next lower
than prision correccionalwhich ranges from one (1) month to six (6) months. Accordingly, the Court fixes the
indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years, four (4) months and
one day of prision correccional, as the maximum.

In acts of lasciviousness, the victim suffers moral injuries because the offender violates her chastity by his
lewdness.1âwphi1 "Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for
omission."36 Indeed, Article 2219, (3), of the Civil Code expressly recognizes the right of the victim in acts of
lasciviousness to recover moral damages.37 Towards that end, the Court, upon its appreciation of the record, decrees
that ₱30,000.00 is a reasonable award of moral damages.38 In addition, AAA was entitled to recover civil indemnity of
₱20,000.00.39

Under Article 2211 of the Civil Code, the courts are vested with the discretion to impose interest as a part of the
damages in crimes and quasidelicts. In that regard, the moral damages of ₱20,000.00 shall earn interest of 6% per
annum reckoned from the finality of this decision until full payment.40

WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO CRUZ y BARTOLOME guilty of ACTS
OF LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES him with the indeterminate sentence of three (3) months
of arresto mayor, as the minimum, to two (2) years, four (4) months and one day of prision correccional, as the
maximum; ORDERS him to pay moral damages of ₱30,000.00 and civil indemnity of ₱20,000.00 to the complainant,
with interest of 6% per annum on such awards reckoned from the finality of this decision until full payment; and
DIRECTS him to pay the costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

TERESITA J. LEONARDO-DE CASTRO JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1 Rollo, pp. 38-49; penned by Associate Justice Eliezer R. Delos Santos (deceased), and concurred in by
Associate Justice Delilah Vidallon-Magtolis (retired) and Associate Justice Arturo D. Brion (now a Member of
the Court).
2
The real name of the offended party is withheld pursuant to Republic Act No. 7610 (Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act); Republic Act No. 9262 (Anti Violence
Against Women and Their Children Act of 2004); and A.M. No. 04-10-11-SC effective November 15, 2004
(Rule on Violence Against Women and Their Children). See also People v. Cabalquinto, G.R. No. 167693,
September 19, 2006, 502 SCRA 419, 421-423.

3 Rollo, p. 51.

4 The real name of the offended party is alsowithheld for the reason stated in note 2.

5 Rollo, pp. 51-52.

6 Supra note 1, at 39-41.

7 Supra note 1, at 41.

8 Rollo, pp. 51-58.

9 Id. at 57-58.

10 Supra note 1.

11 Id. at 47-49.

12 Id. at 19-23.

13 Section 1 of Rule 45, Rules of Courtstates:

Section 1. Filing of petition with Supreme Court.—A party desiring to appeal by certiorarifrom a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an application
for a writ of preliminary injunction or other provisional remedies and shall raise only questions of
law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by
verified motion filed in the same action or proceeding at any time during its pendency.

14 61 Phil. 703 (1935).

15 Id. at 705-707.

16People v. Orita,G.R. No. 88724, April 3, 1990, 184 SCRA 105, 113, citing Black’s Law Dictionary, Fifth
Edition, p. 193.

17 People v. Jalosjos, G.R. Nos. 132875-876, November 16, 2001, 369 SCRA 179, 202.

18 G.R. Nos. 129433, March 30, 2000, 329 SCRA 270, 280-282.

19 Supra note 16.

20 50 Phil. 998 (1927).

21 Id. at 114.

22 G.R. No. 143468-71, January 24, 2003, 396 SCRA 62, 94-95.
23
I Feria & Gregorio, Comments on the Revised Penal Code, First Edition (1958), Central Book Supply, Inc.,
Manila, p. 29., to wit:

An act is defined as any bodily movement or a process whereby an individual puts his organism
into motion. In order to produce some change or effect in the external world, it being unnecessary
that the same be actually produced as the possibility of its production is sufficient. Mere thoughts
and ideas, no matter how immoral or heinous they may be, cannot constitute a felony because the
act must be external, and internal acts are beyond the sphere of criminal law.

24 Id. at 78-79.

25 G.R. No. 180914, November 24, 2010, 636 SCRA 134, 158.

26Article 338 of the Revised Penal Codedefines simple seduction as the seduction of a woman who is single
or a widow of good reputation, over twelve but under eighteen years of age, committed by means of deceit.

27 People v. Lizada, supra note 22 at 95.

28 I Feria & Gregorio, supra note 23, at 78-79, which opines that equivocal preparatory acts remain
unpunished unless the Revised Penal Codepenalizes them (e.g., conspiracy and proposal to commit a
felony in certain cases (Article 8, Revised Penal Code); mere possession with intent to use of instruments or
implements adaptable for the commission of counterfeiting (Article 176, paragraph 2, Revised Penal Code);
and possession of picklocks or similar tools adapted to the commission of robbery (Article 304, Revised
Penal Code).

29 People v. Mendoza, G.R. Nos. 152589 and 152758, January 31, 2005, 450 SCRA 328, 333.

30 People v. Jalosjos, supra, note 17.

31
People v. Dadulla,G.R. No. 172321, February 9, 2011, 642 SCRA 432, 443; citing People v. Collado, G.R.
Nos. 135667-70, March 1, 2001, 353 SCRA 381, 392.

32 People v. Lizada, supra note 22 at 93.

33 Id. at 94.

34 G.R. Nos. 110817-22, June 13, 1997, 273 SCRA 384, 401.

35 Id.

36 Article 2217, Civil Code.

37 Article 2219. Moral damages may be recovered in the following and analogous cases:

xxxx

(3) Seduction, abduction, rape, or other lascivious acts;

xxxx

38 People v. Dominguez, Jr., supra, note 25, at 164-165.

39 Id.
40
People v. Maglente, GR. No. 201445, November 27, 2013, 711SCRA142, 161; People v. Domingo, G.R.
No. 184343, March 2, 2009, 580 SCRA 436, 459.