Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12155

February 2, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avancea for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow was
directed toward a vital part of the body. The aggressor stated his purpose to kill, thought he had killed,
and threw the body into the bushes. When he gave himself up he declared that he had killed the
complainant.
There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon
the girl suddenly and struck her from behind, in part at least, with a sharp bolo, producing a frightful
gash in the lumbar region and slightly to the side eight and one-half inches long and two inches deep,
severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl for the reason that she had
theretofore charged him criminally before the local officials with having raped her and with being the
cause of her pregnancy. He was her mother's querido and was living with her as such at the time the
crime here charged was committed.
That the accused is guilty of some crime is not denied. The only question is the precise crime of
which he should be convicted. It is contended, in the first place, that, if death has resulted, the crime
would not have been murder but homicide, and in the second place, that it is attempted and not
frustrated homicide.
As to the first contention, we are of the opinion that the crime committed would have been murder if
the girl had been killed. It is qualified by the circumstance of alevosia, the accused making a sudden
attack upon his victim from the rear, or partly from the rear, and dealing her a terrible blow in the back
and side with his bolo. Such an attack necessitates the finding that it was made treacherously; and
that being so the crime would have been qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was frustrated and not attempted
murder. Article 3 of the Penal Code defines a frustrated felony as follows:
A felony is frustrated when the offender performs all the acts of execution which should
produce the felony as a consequence, but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the commission of the felony directly by
overt acts, and does not perform all the acts of execution which constitute the felony by reason
of some cause or accident other than his own voluntarily desistance.

The crime cannot be attempted murder. This is clear from the fact that the defendant performed all of
the acts which should have resulted in the consummated crime and voluntarily desisted from further
acts. A crime cannot be held to be attempted unless the offender, after beginning the commission of
the crime by overt acts, is prevented, against his will, by some outside cause from performing all of
the acts which should produce the crime. In other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which intervenes and compels him to stop
prior to the moment when he has performed all of the acts which should produce the crime as a
consequence, which acts it is his intention to perform. If he has performed all of the acts which should
result in the consummation of the crime and voluntarily desists from proceeding further, it can not be
an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the
latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of
the commission of the crime and the moment when all of the acts have been performed which should
result in the consummated crime; while in the former there is such intervention and the offender does
not arrive at the point of performing all of the acts which should produce the crime. He is stopped
short of that point by some cause apart from his voluntary desistance.
To put it in another way, in case of an attempt the offender never passes the subjective phase of the
offense. He is interrupted and compelled to desist by the intervention of outside causes before the
subjective phase is passed.
On the other hand, in case of frustrated crimes the subjective phase is completely passed.
Subjectively the crime is complete. Nothing interrupted the offender while he was passing through the
subjective phase. The crime, however, is not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was necessary to commit the crime. If the crime
did not result as a consequence it was due to something beyond his control.
The subjective phase is that portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by the offender which, with the
prior acts, should result in the consummated crime. From that time forward the phase is objective. It
may also be said to be that period occupied by the acts of the offender over which he has control
that period between the point where he begins and the points where he voluntarily desists.
If between these two points the offender is stopped by reason of any cause outside of his own
voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is not so
stopped but continues until he performs the last act, it is frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena temporal there being neither aggravating nor
mitigating circumstance. As so modified, the judgment is affirmed with costs. So ordered.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724

April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.

MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the
said case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at
Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this
Honorable Court, above named accused with lewd designs and by the use of a Batangas knife
he conveniently provided himself for the purpose and with threats and intimidation, did, then
and there wilfully, unlawfully and feloniously lay with and succeeded in having sexual
intercourse with Cristina S. Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the
witnesses for the People testified and the exhibits were formally offered and admitted, the prosecution
rested its case. Thereafter, the defense opted not to present any exculpatory evidence and instead
filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive
portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @
LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to
offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes
on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as
minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S.
ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment
in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29,
1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p.
102, Rollo):

WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty
of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988
decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of
Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's
College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house. Her
classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her
classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden,
somebody held her and poked a knife to her neck. She then recognized appellant who was a
frequent visitor of another boarder (pp. 8-9,ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door
which led to the first floor was locked from the inside, appellant forced complainant to use the
back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck
and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs
(p. 14, ibid). When they reached the second floor, he commanded her to look for a room. With
the Batangas knife still poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall. With one
hand holding the knife, appellant undressed himself. He then ordered complainant to take off
her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p.
20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his penis and
insert it in her vagina. She followed his order as he continued to poke the knife to her. At said
position, however, appellant could not fully penetrate her. Only a portion of his penis entered
her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this position, only a
small part again of his penis was inserted into her vagina. At this stage, appellant had both his
hands flat on the floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and climbed the
partition. When she saw him inside the room, she ran to another room. Appellant again chased
her. She fled to another room and jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters in front of
the boarding house, and knocked on the door. When there was no answer, she ran around the
building and knocked on the back door. When the policemen who were inside the building
opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the
first policeman to see her, took off his jacket and wrapped it around her. When they discovered
what happened, Pat. Donceras and two other policemen rushed to the boarding house. They
heard a sound at the second floor and saw somebody running away. Due to darkness, they
failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital
where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical
Certificate (Exhibit "A") which states:

Physical Examination Patient is fairly built, came in with loose clothing with no underclothes; appears in state of shock, per unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with prominent nipples; linear abrasions
below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal area or over the
vulva, errythematous (sic)areas noted surrounding vaginal orifice, tender, hymen intact;
no laceration fresh and old noted; examining finger can barely enter and with difficulty;
vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the
witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable
and vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its
candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which
are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being
badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as
manifestations of truthfulness on material points. These little deviations also confirm that the
witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but
such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution
witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such
spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication
of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162
SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which is, the
testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal
knowledge of her. According to the accused, this is strange because "this is the only case where an
aggressor's advances is being helped-out by the victim in order that there will be a consumation of
the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim
ended there. The victim testified further that the accused was holding a Batangas knife during the
aggression. This is a material part of the victim's testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court
on the credibility of witnesses should be accorded the highest respect because it has the advantage
of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v.
Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the
testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be desired as
to the sincerity of the offended party in her testimony before the court. Her answer to every
question profounded (sic), under all circumstances, are plain and straightforward. To the Court
she was a picture of supplication hungry and thirsty for the immediate vindication of the affront

to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had
traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show that
rape was committed provided her testimony is clear and free from contradiction and her sincerity and
candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487;
People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No.
53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she was
raped but she testified convincingly on how the rape was committed. The victim's testimony from the
time she knocked on the door of the municipal building up to the time she was brought to the hospital
was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical certificate,
Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks,
circumscribed hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and
tender vulva, are conclusive proof of struggle against force and violence exerted on the victim (pp.
52-53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the
narration of the scene of the incident and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight
of both accused and offended party without the slightest difficulty, even in the manner as
narrated. The partitions of every room were of strong materials, securedly nailed, and would
not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al.,
G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the ground
which was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury
to a frightened individual being pursued. Common experience will tell us that in occasion of
conflagration especially occuring (sic) in high buildings, many have been saved by jumping
from some considerable heights without being injured. How much more for a frightened barrio
girl, like the offended party to whom honor appears to be more valuable than her life or limbs?
Besides, the exposure of her private parts when she sought assistance from authorities, as
corroborated, is enough indication that something not ordinary happened to her unless she is
mentally deranged. Sadly, nothing was adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We
ruled that:
What particularly imprints the badge of truth on her story is her having been rendered entirely
naked by appellant and that even in her nudity, she had to run away from the latter and
managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts
she would not have done nor would these facts have occurred unless she was sexually
assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to corroborate
the allegations in the complaint and the non-presentation of the medico-legal officer who actually
examined the victim. Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of
Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989).
As for the non-presentation of the medico-legal officer who actually examined the victim, the trial
court stated that it was by agreement of the parties that another physician testified inasmuch as the
medico-legal officer was no longer available. The accused did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on
its face. Some were not even substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the subject matter that really calls
for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court
was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim
and thus convicted the accused of frustrated rape only.

The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
xxx

xxx

xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman
(Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as
those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt
acts, and does not perform all the acts of execution which should produce the felony by reason
of some cause or accident other than his own spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and consummated stages
apply to the crime of rape.1wphi1 Our concern now is whether or not the frustrated stage applies to
the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution
which would produce the felony and (2) that the felony is not produced due to causes independent of
the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated felonies which is readily understood
even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside cause
from performing all of the acts which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be thwarted by a foreign force or agency
which intervenes and compels him to stop prior to the moment when he has performed all of
the acts which should produce the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have been performed which
should result in the consummated crime; while in the former there is such intervention and the
offender does not arrive at the point of performing all of the acts which should produce the
crime. He is stopped short of that point by some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he
actually attains his purpose and, from that moment also all the essential elements of the offense have
been accomplished.Nothing more is left to be done by the offender, because he has performed the

last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases
(People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58
SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is
not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or
lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to
warrant conviction. Necessarily, rape is attempted if there is no penetration of the female
organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia:
9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the
commission of a felony directly by overt acts. Taking into account the nature, elements and manner of
execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the
frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50 Phil. 998
[1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of
penetration of the genital organ of the offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware
of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September
12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate
paragraph, for the penalty of death when the rape is attempted orfrustrated and a homicide is
committed by reason or on the occasion thereof. We are of the opinion that this particular provision
on frustrated rape is a dead provision. The Eria case, supra, might have prompted the law-making
body to include the crime of frustrated rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the
trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in
the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to
the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted
by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there
was penetration or not. It is true, and the Court is not oblivious, that conviction for rape could
proceed from the uncorroborated testimony of the offended party and that a medical certificate
is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the
people relied upon cannot be applicable to the instant case. The testimony of the offended
party is at variance with the medical certificate. As such, a very disturbing doubt has surfaced
in the mind of the court. It should be stressed that in cases of rape where there is a positive
testimony and a medical certificate, both should in all respect, compliment each other, for
otherwise to rely on the testimony alone in utter disregard of the manifest variance in the
medical certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical certificate does not exist.
On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It
bears emphasis that Dr. Zamoradid not rule out penetration of the genital organ of the victim. He
merely testified that there was uncertainty whether or not there was penetration. Anent this testimony,
the victim positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May
23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx

xxx

xxx

Q What do you mean when you said comply, or what act do you referred (sic) to, when you
said comply?
A I inserted his penis into my vagina.
Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the
victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65;
People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R.
Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely
corroborative and is not an indispensable element in the prosecution of this case (People v.
Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused
because after a thorough review of the records, We find the evidence sufficient to prove his guilt
beyond reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial
court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution
and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited
Constitutional provision did not declare the abolition of the death penalty but merely prohibits the
imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being
a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any mitigating or
aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal Code; see People v.
Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449,
November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA
702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito
Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion
perpetua as well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724

April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.

MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the
said case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at
Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this
Honorable Court, above named accused with lewd designs and by the use of a Batangas knife
he conveniently provided himself for the purpose and with threats and intimidation, did, then
and there wilfully, unlawfully and feloniously lay with and succeeded in having sexual
intercourse with Cristina S. Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the
witnesses for the People testified and the exhibits were formally offered and admitted, the prosecution
rested its case. Thereafter, the defense opted not to present any exculpatory evidence and instead
filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive
portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @
LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to
offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes
on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as
minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S.
ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment
in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29,
1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p.
102, Rollo):

WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty
of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988
decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of
Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's
College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house. Her
classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her
classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden,
somebody held her and poked a knife to her neck. She then recognized appellant who was a
frequent visitor of another boarder (pp. 8-9,ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door
which led to the first floor was locked from the inside, appellant forced complainant to use the
back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck
and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs
(p. 14, ibid). When they reached the second floor, he commanded her to look for a room. With
the Batangas knife still poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall. With one
hand holding the knife, appellant undressed himself. He then ordered complainant to take off
her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p.
20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his penis and
insert it in her vagina. She followed his order as he continued to poke the knife to her. At said
position, however, appellant could not fully penetrate her. Only a portion of his penis entered
her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this position, only a
small part again of his penis was inserted into her vagina. At this stage, appellant had both his
hands flat on the floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and climbed the
partition. When she saw him inside the room, she ran to another room. Appellant again chased
her. She fled to another room and jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters in front of
the boarding house, and knocked on the door. When there was no answer, she ran around the
building and knocked on the back door. When the policemen who were inside the building
opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the
first policeman to see her, took off his jacket and wrapped it around her. When they discovered
what happened, Pat. Donceras and two other policemen rushed to the boarding house. They
heard a sound at the second floor and saw somebody running away. Due to darkness, they
failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital
where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical
Certificate (Exhibit "A") which states:

Physical Examination Patient is fairly built, came in with loose clothing with no underclothes; appears in state of shock, per unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with prominent nipples; linear abrasions
below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal area or over the
vulva, errythematous (sic)areas noted surrounding vaginal orifice, tender, hymen intact;
no laceration fresh and old noted; examining finger can barely enter and with difficulty;
vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the
witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable
and vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its
candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which
are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being
badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as
manifestations of truthfulness on material points. These little deviations also confirm that the
witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but
such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution
witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such
spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication
of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162
SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which is, the
testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal
knowledge of her. According to the accused, this is strange because "this is the only case where an
aggressor's advances is being helped-out by the victim in order that there will be a consumation of
the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim
ended there. The victim testified further that the accused was holding a Batangas knife during the
aggression. This is a material part of the victim's testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court
on the credibility of witnesses should be accorded the highest respect because it has the advantage
of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v.
Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the
testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be desired as
to the sincerity of the offended party in her testimony before the court. Her answer to every
question profounded (sic), under all circumstances, are plain and straightforward. To the Court
she was a picture of supplication hungry and thirsty for the immediate vindication of the affront

to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had
traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show that
rape was committed provided her testimony is clear and free from contradiction and her sincerity and
candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487;
People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No.
53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she was
raped but she testified convincingly on how the rape was committed. The victim's testimony from the
time she knocked on the door of the municipal building up to the time she was brought to the hospital
was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical certificate,
Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks,
circumscribed hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and
tender vulva, are conclusive proof of struggle against force and violence exerted on the victim (pp.
52-53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the
narration of the scene of the incident and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight
of both accused and offended party without the slightest difficulty, even in the manner as
narrated. The partitions of every room were of strong materials, securedly nailed, and would
not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al.,
G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the ground
which was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury
to a frightened individual being pursued. Common experience will tell us that in occasion of
conflagration especially occuring (sic) in high buildings, many have been saved by jumping
from some considerable heights without being injured. How much more for a frightened barrio
girl, like the offended party to whom honor appears to be more valuable than her life or limbs?
Besides, the exposure of her private parts when she sought assistance from authorities, as
corroborated, is enough indication that something not ordinary happened to her unless she is
mentally deranged. Sadly, nothing was adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We
ruled that:
What particularly imprints the badge of truth on her story is her having been rendered entirely
naked by appellant and that even in her nudity, she had to run away from the latter and
managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts
she would not have done nor would these facts have occurred unless she was sexually
assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to corroborate
the allegations in the complaint and the non-presentation of the medico-legal officer who actually
examined the victim. Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of
Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989).
As for the non-presentation of the medico-legal officer who actually examined the victim, the trial
court stated that it was by agreement of the parties that another physician testified inasmuch as the
medico-legal officer was no longer available. The accused did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on
its face. Some were not even substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the subject matter that really calls
for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court
was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim
and thus convicted the accused of frustrated rape only.

The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
xxx

xxx

xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman
(Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as
those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt
acts, and does not perform all the acts of execution which should produce the felony by reason
of some cause or accident other than his own spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and consummated stages
apply to the crime of rape.1wphi1 Our concern now is whether or not the frustrated stage applies to
the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution
which would produce the felony and (2) that the felony is not produced due to causes independent of
the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated felonies which is readily understood
even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside cause
from performing all of the acts which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be thwarted by a foreign force or agency
which intervenes and compels him to stop prior to the moment when he has performed all of
the acts which should produce the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have been performed which
should result in the consummated crime; while in the former there is such intervention and the
offender does not arrive at the point of performing all of the acts which should produce the
crime. He is stopped short of that point by some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he
actually attains his purpose and, from that moment also all the essential elements of the offense have
been accomplished.Nothing more is left to be done by the offender, because he has performed the

last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases
(People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58
SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is
not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or
lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to
warrant conviction. Necessarily, rape is attempted if there is no penetration of the female
organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia:
9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the
commission of a felony directly by overt acts. Taking into account the nature, elements and manner of
execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the
frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50 Phil. 998
[1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of
penetration of the genital organ of the offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware
of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September
12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate
paragraph, for the penalty of death when the rape is attempted orfrustrated and a homicide is
committed by reason or on the occasion thereof. We are of the opinion that this particular provision
on frustrated rape is a dead provision. The Eria case, supra, might have prompted the law-making
body to include the crime of frustrated rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the
trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in
the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to
the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted
by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there
was penetration or not. It is true, and the Court is not oblivious, that conviction for rape could
proceed from the uncorroborated testimony of the offended party and that a medical certificate
is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the
people relied upon cannot be applicable to the instant case. The testimony of the offended
party is at variance with the medical certificate. As such, a very disturbing doubt has surfaced
in the mind of the court. It should be stressed that in cases of rape where there is a positive
testimony and a medical certificate, both should in all respect, compliment each other, for
otherwise to rely on the testimony alone in utter disregard of the manifest variance in the
medical certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical certificate does not exist.
On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It
bears emphasis that Dr. Zamoradid not rule out penetration of the genital organ of the victim. He
merely testified that there was uncertainty whether or not there was penetration. Anent this testimony,
the victim positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May
23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx

xxx

xxx

Q What do you mean when you said comply, or what act do you referred (sic) to, when you
said comply?
A I inserted his penis into my vagina.
Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the
victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65;
People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R.
Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely
corroborative and is not an indispensable element in the prosecution of this case (People v.
Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused
because after a thorough review of the records, We find the evidence sufficient to prove his guilt
beyond reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial
court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution
and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited
Constitutional provision did not declare the abolition of the death penalty but merely prohibits the
imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being
a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any mitigating or
aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal Code; see People v.
Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449,
November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA
702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito
Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion
perpetua as well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

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

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

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,
inEmpelis v. IAC.[5] This petition now gives occasion for us to finally and fully measure if
or how frustrated theft is susceptible to commission under the Revised Penal Code.

I.

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

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab
and directed it towards the parking space where Calderon was waiting. Calderon loaded
the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts
were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking
area. When Lago asked petitioner for a receipt of the merchandise, petitioner and

Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow
security guards of the incident. Petitioner and Calderon were apprehended at the scene,
and the stolen merchandise recovered.[8] The filched items seized from the duo were four
(4) cases of Tide Ultramatic, one (1) case of Ultra25 grams, and three (3) additional
cases of detergent, the goods with an aggregate value ofP12,090.00.[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 of19 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 heardthe 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 correccionalas 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 andFlores rulings since they have not yet been expressly adopted as precedents
by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass
before us. Yet despite the silence on our part, Dio and Flores have attained a level of

renown reached by very few other appellate court rulings. They are comprehensively
discussed in the most popular of our criminal law annotations, [29] and studied in criminal
law classes as textbook examples of frustrated crimes or even as definitive of frustrated
theft.

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

III.

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

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

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

other hand, the subjective phase is completely passed in case of frustrated crimes, for in
such instances, [s]ubjectively the crime is complete.[34]

Truly, an easy distinction lies between consummated and frustrated felonies on

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

In contrast, the determination of whether a crime is frustrated or consummated

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

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

It is from the actus reus and the mens rea, as they find expression in the criminal
statute, that the felony is produced. As a postulate in the craftsmanship of
constitutionally sound laws, it is extremely preferable that the language of the law
expressly provide when the felony is produced. Without such provision, disputes would
inevitably ensue on the elemental question whether or not a crime was committed,
thereby presaging the undesirable and legally dubious set-up under which the judiciary is
assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does

not suffer from such infirmity. From the statutory definition of any felony, a decisive
passage or term is embedded which attests when the felony is produced by the acts of
execution. For example, the statutory definition of murder or homicide expressly uses the
phrase shall kill another, thus making it clear that the felony is produced by the death of
the victim, and conversely, it is not produced if the victim survives.

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

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

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

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

In his commentaries, Judge Guevarra traces the history of the definition of theft,
which under early Roman law as defined by Gaius, was so broad enough as to

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

In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful

taking, to characterize theft. Justice Regalado notes that the concept
of apoderamiento once had a controversial interpretation and application. Spanish law
had already discounted the belief that mere physical taking was constitutive
of apoderamiento, finding that it had to be coupled with the intent to appropriate the
object in order to constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing.[47] However, a conflicting line of cases decided by the Court of
Appeals ruled, alternatively, that there must be permanency in the taking [48] or an intent
to permanently deprive the owner of the stolen property; [49] or that there was no need for
permanency in the taking or in its intent, as the mere temporary possession by the
offender or disturbance of the proprietary rights of the owner already
constituted apoderamiento.[50] Ultimately, as Justice Regalado notes, the Court adopted
the latter thought that there was no need of an intent to permanently deprive the owner
of his property to constitute an unlawful taking.[51]

So long as the descriptive circumstances that qualify the taking are present,
including animo lucrandi and apoderamiento, the completion of the operative act that is
the taking of personal property of another establishes, at least, that the transgression
went beyond the attempted stage. As applied to the present case, the moment petitioner
obtained physical possession of the cases of detergent and loaded them in the pushcart,
such seizure motivated by intent to gain, completed without need to inflict violence or
intimidation against persons nor force upon things, and accomplished without the
consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a
conviction for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are

obliged to apply Article 6 of the Revised Penal Code to ascertain the answer. Following
that provision, the theft would have been frustrated only, once the acts committed by
petitioner, if ordinarily sufficient to produce theft as a consequence, do not produce

[such theft] by reason of causes independent of the will of the perpetrator. There are
clearly two determinative factors to consider: that the felony is not produced, and that
such failure is due to causes independent of the will of the perpetrator. The second factor
ultimately depends on the evidence at hand in each particular case. The first, however,
relies primarily on a doctrinal definition attaching to the individual felonies in the Revised
Penal Code[52] as to when a particular felony is not produced, despite the commission of
all the acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary

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

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

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

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

The defendant penetrated into a room of a certain house and by

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

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

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

We believe that such a contention is groundless. The [accused] succeeded

in taking the pocket-book, and that determines the crime of theft. If the
pocket-book was afterwards recovered, such recovery does not affect the
[accuseds] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.[59]
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases
cited in the latter, in that the fact that the offender was able to succeed in obtaining
physical possession of the stolen item, no matter how momentary, was able to
consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict
the position of petitioner in this case. Yet to simply affirm without further comment would

be disingenuous, as there is another school of thought on when theft is consummated, as

reflected in the Dio and Flores decisions.

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

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

Considerando que para que el apoderamiento de la cosa sustraida sea

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

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the
booty subject to the control and disposal of the culprits, the articles stolen
must first be passed through the M.P. check point, but since the offense was
opportunely discovered and the articles seized after all the acts of execution
had been performed, but before the loot came under the final control and
disposal of the looters, the offense can not be said to have been fully

consummated, as it was frustrated by the timely intervention of the guard.

The offense committed, therefore, is that of frustrated theft.[63]

Dio thus laid down the theory that the ability of the actor to freely dispose of the
items stolen at the time of apprehension is determinative as to whether the theft is
consummated or frustrated. This theory was applied again by the Court of Appeals some
15 years later, inFlores, 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

betweenDio 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 orFlores, 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 andU.S. v. Sobrevilla x x x indicate that actual taking with
intent to gain is enough to consummate the crime of theft.[74]

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

checkpoint, the stolen items were discovered by the Military Police running the
checkpoint. Even though those facts clearly admit to similarity with those in Dio, the
Court of Appeals held that the accused were guilty of consummated theft, as the
accused were able to take or get hold of the hospital linen and that the only thing that
was frustrated, which does not constitute any element of theft, is the use or benefit that
the thieves expected from the commission of the offense.[76]

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

IV.

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

As narrated in Empelis, the owner of a coconut plantation had espied four (4)
persons in the premises of his plantation, in the act of gathering and tying some
coconuts. The accused were surprised by the owner within the plantation as they were
carrying with them the coconuts they had gathered. The accused fled the scene,
dropping the coconuts they had seized, and were subsequently arrested after the owner
reported the incident to the police. After trial, the accused were convicted of qualified
theft, and the issue they raised on appeal was that they were guilty only of simple theft.
The Court affirmed that the theft was qualified, following 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
nonperformance 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 Empelismay 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
Espaawas then in place. The definition of the crime of theft, as provided then, read as
follows:

Son reos de hurto:

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

2.

Los que encontrndose una cosa perdida y sabiendo quin es su dueo se

la apropriaren co intencin de lucro.

3.

Los daadores que sustrajeren o utilizaren los frutos u objeto del dao
causado, salvo los casos previstos en los artculos 606, nm. 1.0; 607,
nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y
618.

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

tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado [82]

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

The oft-cited Salvador Viada adopted a question-answer form in his 1926

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

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

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

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

La doctrina hoy generalmente sustentada considera que el hurto se

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

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

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

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

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

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

Such factor runs immaterial to the statutory definition of theft, which is the taking,
with intent to gain, of personal property of another without the latters consent. While
theDio/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 andFlores rulings, his petition must be denied, for we decline to adopt said
rulings in our jurisdiction. That it has taken all these years for us to recognize that there
can be no frustrated theft under the Revised Penal Code does not detract from the
correctness of this conclusion. It will take considerable amendments to our Revised Penal
Code in order that frustrated theft may be recognized. Our deference to Viada yields to
the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
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.et
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.
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 86163

April 26, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO
CANASARES, BIENVENIDO SALVILLA, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Resurreccion S. Salvilla for defendant-appellant.

MELENCIO-HERRERA, J.:
Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial Court, Branch 28,
Iloilo City, *dated 29 August 1988, in Criminal Case No. 20092, finding him and his co-accused
Reynaldo, Ronaldo and Simplicio, all surnamed Canasares, guilty beyond reasonable doubt of the
crime of "Robbery with Serious Physical Injuries and Serious Illegal Detention" and sentencing them
to suffer the penalty of reclusion perpetua.
The Information filed against them reads:
The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO CANASARES,
RONALDO CANASARES, and SIMPLICIO CANASARES, whose maternal surnames, dated
and places of birth cannot be ascertained of the crime of ROBBERY WITH SERIOUS
PHYSICAL INJURIES AND SERIOUS ILLEGAL DETENTION (Art, 294, paragraph 3, in
conjunction with Article 267 of the Revised Penal Code), committed as follows:
That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines and within the
jurisdiction of this Court, said accused, conspiring and confederating among themselves,
working together and helping one another, armed with guns and handgrenade and with the use
of violence or intimidation employed on the person of Severino Choco, Mary Choco, Mimie
Choco and Rodita Hablero did then and there wilfully, unlawfully and criminally take and carry
away, with intent of gain, cash in the amount of P20,000.00, two (2) Men's wrist watches, one
(1) Lady's Seiko quartz wrist watch and one (1) Lady's Citizen wrist watch and assorted
jewelries, all valued at P50,000.00; that on the occasion and by reason of said robbery, Mary
Choco suffered serious physical injuries under paragraph 2 of Article 263, Bienvenido Salvilla
likewise suffered serious physical injuries and Reynaldo Canasares also suffered physical
injuries; that the said accused also illegally detained, at the compound of the New Iloilo

Lumber Company, Iznart Street, Iloilo City, Severino Choco, owner/proprietor of said Lumber
Company, Mary Choco, Mimie Choco, who is a minor, being 15 years of age, and Rodita
Hablero, who is a salesgirl at said Company; that likewise on the occasion of the robbery, the
accused also asked and were given a ransom money of P50,000.00; that the said crime was
attended by aggravating circumstances of band, and illegal possession of firearms and
explosives; that the amount of P20,000.00, the ransom money of P50,000.00, two (2) Men's
wrist watches, two (2) lady's wrist watches, one (1) .38 caliber revolver and one (1) live
grenade were recovered from the accused; to the damage and prejudice of the New Iloilo
Lumber Company in the amount of P120,000.00.
The evidence for the prosecution may be re-stated as follows:
On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber Yard at about
noon time. The plan was hatched about two days before. The accused were armed with homemade
guns and a hand grenade. When they entered the establishment, they met Rodita Hablero an
employee thereat who was on her way out for her meal break and announced to her that it was a
hold-up. She was made to go back to the office and there Appellant Salvilla pointed his gun at the
owner, Severino Choco, and his two daughters, Mary and Mimie the latter being a minor 15 years of
age, and told the former that all they needed was money. Hearing this, Severino told his daughter,
Mary, to get a paper bag wherein he placed P20,000.00 cash (P5,000.00, according to the defense)
and handed it to Appellant. Thereafter, Severino pleaded with the four accused to leave the premises
as they already had the money but they paid no heed. Instead, accused Simplicio Canasares took the
wallet and wristwatch of Severino after which the latter, his two daughters, and Rodita, were herded
to the office and kept there as hostages.
At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four accused also took
turns eating while the others stood guard. Then, Appellant told Severino to produce P100,000.00 so
he and the other hostages could be released. Severino answered that he could not do so because it
was a Saturday and the banks were closed.
In the meantime, police and military authorities had surrounded the premises of the lumber yard.
Major Melquiades B. Sequio Station Commander of the INP of Iloilo City, negotiated with the accused
using a loud speaker and appealed to them to surrender with the assurance that no harm would befall
them as he would accompany them personally to the police station. The accused refused to
surrender or to release the hostages.
Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her dialogue
with the accused, which lasted for about four hours, Appellant demanded P100,000.00, a coaster, and
some raincoats. She offered them P50,000.00 instead, explaining the difficulty of raising more as it
was a Saturday. Later, the accused agreed to receive the same and to release Rodita to be
accompanied by Mary Choco in going out of the office. When they were out of the door, one of the
accused whose face was covered by a handkerchief, gave a key to Mayor Caram. With this, Mayor
Caram unlocked the padlocked door and handed to Rodita the P50,000.00, which the latter, in turn,
gave to one of the accused. Rodita was later set free but Mary was herded back to the office.
Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to the
accused to surrender peacefully but they refused.1wphi1 UItimatums were given but the accused
did not budge. Finally, the police and military authorities decided to launch an offensive and assault
the place. This resulted in injuries to the girls, Mimie and Mary Choco as well as to the accused
Ronaldo and Reynaldo Canasares. Mary suffered a "macerated right lower extremity just below the
knee" so that her right leg had to be amputated. The medical certificate described her condition as "in
a state of hemorrhagic shock when she was brought in to the hospital and had to undergo several
major operations during the course of her confinement from April 13, 1986 to May 30, 1986."
For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his coaccused entered the lumber yard and demanded money from the owner Severino Choco He
demanded P100,000.00 but was given only P5,000.00, which he placed on the counter of the office of
the lumber yard. He admitted that he and his co-accused kept Severino, his daughters, and Rodita
inside the office. He maintained, however, that he stopped his co-accused from getting the wallet and
wristwatch of Severino and, like the P5,000.00 were all left on the counter, and were never touched
by them. He claimed further that they had never fired on the military because they intended to
surrender. Appellant's version also was that during the gunfire, Severino's daughter stood up and

went outside; he wanted to stop her but he himself was hit by a bullet and could not prevent her.
Appellant also admitted the appeals directed to them to surrender but that they gave themselves up
only much later.
After trial, the Court a quo meted out a judgment of conviction and sentenced each of the accused "to
suffer the penalty of reclusion perpetua, with the accessory penalties provided by law and to pay the
costs."
Appellant Salvilla's present appeal is predicated on the following Assignments of Error:
1. The lower court erred in holding that the crime charged was consummated and in not
holding that the same was merely attempted.
2. The lower court erred in not appreciating the mitigating circumstance of voluntary
surrender."
Upon the facts and the evidence, we affirm.
The defense contends that "The complete crime of larceny (theft/robbery) as distinguished from an
attempt requires asportation or carrying away, in addition to the taking, In other words, the crime of
robbery/theft has three consecutive stages: 1) the giving 2) the taking and 3) the carrying away or
asportation And without asportation the crime committed is only attempted" (Memorandum for
Appellant Salvilla, Records, p. 317).
There is no question that in robbery, it is required that there be a taking of personal property
belonging to another. This is known as the element of asportation the essence of which is the taking
of a thing out of the possession of the owner without his privity and consent and without the animus
revertendi (Aquino, Revised Penal Code, p. 97, citing 5 C.J. 607). In fact, if there is no actual taking,
there can be no robbery. Unlawful taking of personal property of another is an essential part of the
crime of robbery.
Appellant insists that while the "giving" has been proven, the "taking" has not. And this is because
neither he nor his three co-accused touched the P5,000.00 given by Severino nor the latter's wallet or
watch during the entire incident; proof of which is that none of those items were recovered from their
persons.
Those factual allegations are contradicted by the evidence. Rodita, the lumberyard employee,
testified that upon demand by Appellant, Severino put P20,000.00 inside a paper bag and
subsequently handed it to Appellant. In turn, accused Simplicio Canasares took the wallet and
wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram, Rodita declared that the
Mayor handed the amount to her after she (the Mayor) had opened the padlocked door and that she
thereafter gave the amount to one of the holduppers. The "taking" was, therefore, sufficiently proved
(TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet and wristwatch
were within the dominion and control of the Appellant and his co-accused and completed the taking.
The State established a "taking" sufficient to support a conviction of robbery even though the
perpetrators were interrupted by police and so did not pick up the money offered by the victim,
where the defendant and an accomplice, armed with a knife and a club respectively, had
demanded the money from the female clerk of a convenience store, and the clerk had
complied with their instructions and placed money from the register in a paper bag and then
placed the bag on the counter in front of the two men; these actions brought the money within
the dominion and control of defendant and completed the taking. (Johnson vs. State, 432 So
2d 758).
"Severance of the goods from the possession of the owner and absolute control of the property
by the taker, even for an instant, constitutes asportation (Adams vs. Commonwealth, 154 SW
381; State vs. Murray, 280 SW 2d 809; Mason vs. Commonwealth, 105 SE 2d 149) [Emphasis
supplied].
It is no defense either that Appellant and his co-accused had no opportunity to dispose of the
personalities taken. That fact does not affect the nature of the crime, From the moment the offender

gained possession of the thing, even if the culprit had no opportunity to dispose of the same, the
unlawful taking is complete (Reyes, Revised Penal Code Annotated, Book II, 1981 ed., p. 594).
The crime is consummated when the robber acquires possession of the property, even if for a
short time, and it is not necessary that the property be taken into the hands of the robber, or
that he should have actually carried the property away, out of the physical presence of the
lawful possessor, or that he should have made his escape with it" (People vs. Quinn, 176 P 2d
404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P
2d 553).
Contrary to Appellant's submission, therefore, a conviction for consummated and not merely
attempted Robbery is in order.
It is the contention of Appellant that Rodita could not have seen the taking because the place was
dark since the doors were closed and there were no windows. It will be recalled, however, that Rodita
was one of the hostages herself and could observe the unfolding of events. Her failure to mention the
taking in her sworn statement would not militate against her credibility, it being settled that an affidavit
is almost always incomplete and inaccurate and does not disclose the complete facts for want of
inquiries or suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152 SCRA 570; People
vs. Tan, et al., 89 Phil. 337 [1951]).
The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The defense
has not proven that she was actuated by any improper motive in testifying against the accused.
In the last analysis, the basic consideration centers around the credibility of witnesses in respect of
which the findings of the Trial Court are entitled to great weight as it was in a superior position to
assess the same in the course of the trial (see People vs. Ornoza G.R. No. L-56283, 30 June 1987,
151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987, 151 SCRA 326).
Anent the second assignment of error, the "surrender" of the Appellant and his co-accused cannot be
considered in their favor to mitigate their liability. To be mitigating, a surrender must have the following
requisites: (a) that the offender had not been actually arrested; (b) that the offender surrendered
himself to a person in authority or to his agent; and (c) that the surrender was voluntary (People vs.
Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141).
The "surrender" by the Appellant and his co-accused hardly meets these requirements. They were,
indeed, asked to surrender by the police and military authorities but they refused until only much later
when they could no longer do otherwise by force of circumstances when they knew they were
completely surrounded and there was no chance of escape. The surrender of the accused was held
not to be mitigating as when he gave up only after he was surrounded by the constabulary and police
forces (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30 April 1966, 16 SCRA 839; People vs.
Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167). Their surrender was not spontaneous as
it was motivated more by an intent to insure their safety. And while it is claimed that they intended to
surrender, the fact is that they did not despite several opportunities to do so. There is no voluntary
surrender to speak of (People vs. Dimdiman 106 Phil. 391 [1959]).
All told, the assigned errors remain unsubstantiated and we find the guilt of the accused-appellant,
Bienvenido Salvilla, established beyond reasonable doubt.
Although unassigned as an error, we deem it necessary to turn now to the nature of the linked
offenses involved and the penalty imposed by the Trial Court.
Appellant and his co-accused were charged in the Information with "Robbery with Serious Physical
Injuries and Serious Illegal Detention ("Art. 295, par. 3, in conjunction with Art. 267, RPC )and
sentenced to reclusion perpetua. We agree with the Trial Court that a complex crime under Article 48
of the Revised Penal Code has been committed such that the penalty for the more serious offense of
Serious Illegal Detention (Art. 267, Revised Penal Code), or "reclusion perpetua to death," is to be
imposed instead of the penalty prescribed for Robbery with Serious Physical Injuries (Art. 294 (3),
which is reclusion temporal.
Under Article 48, a complex crime arises "when an offense is a necessary means for committing the
other." The term "necessary means" does not connote indispensable means for if it did then the

offense as a "necessary means" to commit another would be an indispensable element of the latter
and would be an ingredient thereof. The phrase "necessary means" merely signifies that one crime is
committed to facilitate and insure the commission of the other (Aquino, Revised Penal Code, Vol. I,
1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case, the
crime of Serious Illegal Detention was such a "necessary means" as it was selected by Appellant and
his co-accused to facilitate and carry out more effectively their evil design to stage a robbery.
The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29 April
1987, 149 SCRA 325) where the accused were convicted of Robbery but acquitted in the case for
Serious Illegal Detention and where it was held that "the detention is absorbed in the crime of
robbery." For one, in Astor, there were two (2) separate Informations filed, one for Robbery and
another for Serious Illegal Detention. In the present case, only one Information was filed charging the
complex offense. For another, in Astor, the robbery had already been consummated and the
detention was merely to forestall the capture of the robbers by the police. Not so in this case, where
the detention was availed of as a means of insuring the consummation of the robbery. Further,
inAstor, the detention was only incidental to the main crime of robbery so that it was held therein:
. . . were appellants themselves not trapped by the early arrival of the police at the scene of the
crime, they would have not anymore detained the people inside since they have already
completed their job. Obviously, appellants were left with no choice but to resort to detention of
these people as security, until arrangements for their safe passage were made. This is not the
crime of illegal detention punishable under the penal laws but an act of restraint in order to
delay the pursuit of the criminals by peace officers (People v. Sol, 9 Phil. 265; People v. Uday
55 Phil. 167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the
victims in a robbery case were detained in the course of robbery, the detention is absorbed by
the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at bar, the detention was only
incidental to the main crime of robbery, and although in the course thereof women and children
were also held, that threats to kill were made, the act should not be considered as a separate
offense. Appellants should only be held guilty of robbery.
In contract, the detention in the case at bar was not only incidental to the robbery but was a
necessary means to commit the same.1wphi1 After the amount of P20,000.00 was handed to
Appellant, the latter and his co-accused still refused to leave. The victims were then taken as
hostages and the demand to produce an additional P100,000.00 was made as a prerequisite for their
release. The detention was not because the accused were trapped by the police nor were the victims
held as security against the latter. The detention was not merely a matter of restraint to enable the
malefactors to escape, but deliberate as a means of extortion for an additional amount. The police
and other authorities arrived only much later after several hours of detention had already passed.
And, despite appeals to appellant and his co-accused to surrender, they adamantly refused until the
amount of P100,000.00 they demanded could be turned over to them. They even considered
P50,000.00, the amount being handed to them, as inadequate.
The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907] where
the restraint was for no other purpose than to prevent the victims from reporting the crime to the
authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where the victims were taken to a place one
kilometer away and shot in order to liquidate the witnesses to the robbery; from People v. Baysa, 92
Phil. 1008 [1953]; People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited in Astor and
where the victims were only incidentally detained so that the detention was deemed absorbed in
robbery.
In other words, unlike in the above cases, the elements of the offense of Serious Illegal Detention are
present in this case. The victims were illegally deprived of their liberty. Two females (Mary and
Minnie) and a minor (Minnie), a specified circumstance in Article 267 (3), were among those detained.
The continuing detention was also for the purpose of extorting ransom, another listed circumstance in
Article 267 (last parag.) not only from the detained persons themselves but even from the authorities
who arrived to rescue them.
It follows then that as the detention in this case was not merely incidental to the robbery but a
necessary means employed to facilitate it, the penalty imposed by the Trial Court is proper.
WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate costs.

SO ORDERED.

Republic of the Philippines

Supreme Court
Manila
THIRD DIVISION
LEONIDAS EPIFANIO Y G.R. NO. 157057
LAZARO,
Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO, and
NACHURA, JJ.
PEOPLE OF THE PHILIPPINES, Promulgated:
Respondent. June 26, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court assailing
the Decision[1] dated May 22, 2002 of the Court of Appeals (CA) in CA-G.R. CR No. 17995 which affirmed the
Decision[2] dated July 5, 1994 of the Regional Trial Court, Branch 4, Panabo, Davao (RTC) in Criminal Case
No. 91-15 finding Leonidas Epifanio yLazaro (petitioner) guilty of Frustrated Murder, and the CA
Resolution[3] dated January 14, 2003 which denied petitioner's Motion for Reconsideration.
The facts of the case, as found by the RTC and the CA, are as follows:
At around 9:00 o'clock in the evening of August 15, 1990, Crisaldo Alberto (Crisaldo) and his cousin, Allan
Perez (Allan), were walking to their respective homes in Kilometer 7, Del Monte, Samal, Davao after spending
time at the house of Crisaldo's father. Since the pavement going to Crisaldo's house followed a narrow pathway
along the local shrubs called banganga, Allan walked ahead of Crisaldo at a distance of about three (3) meters.
[4]
Suddenly, Crisaldofelt the piercing thrust of a bladed weapon on his back, which caused him to cry out in
pain.He made a quick turnaround and saw his attacker, petitioner, also known as Iyo (Uncle)Kingkoy. Petitioner
stabbed Crisaldo again but only hit the latter's left arm.[5]

When Allan heard Crisaldo's outcry, he rushed to Crisaldo's side and said, Iyo Kingkoy (UncleKingkoy), why
did you stab Saldo? which caused petitioner to run away.[6] Allan then brought Crisaldo to his father's house
where Crisaldo's wounds were wrapped in a blanket.Crisaldo was then brought to the Peaplata Hospital where
he was given first aid and then transferred to the Davao Medical Center where he stayed for three weeks to
recuperate from his wounds.[7] The attending physician, Santiago Aquino, issued a Medical Certificate
datedSeptember 4, 1990, with the following findings:
1. Stab wound (R) scapular area (Medial border) at level 5-7th ICS (L) arm Medial aspect M3rd
2. Fracture 7th and 8th rib, posterior, right.
Probable healing time will be 15-30 days barring complication.[8]
Subsequently, petitioner was charged with Frustrated Murder in Criminal Case No. 91-15. The Information
dated January 4, 1991 reads:
That on or about August 15, 1990, in the Municipality of Samal, Province of Davao,
Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, with
treachery and evident premeditation, with intent to kill, armed with a knife, did then and there
willfully, unlawfully, and feloniously attack, assault and stab one Crisaldo Alberto, thereby
inflicting upon him wounds which ordinarily would have caused his death, thus the accused
performed all the acts of execution which would produce the crime of murder, as a consequence
but which, nevertheless, did not produce it by reason of some causes independent of the will of
the accused, that is, by the timely and able medical assistance rendered to saidCrisaldo Alberto,
and further causing actual, moral and compensatory damages to the offended party.
Contrary to law.[9]
During his arraignment on June 25, 1991, petitioner, with the assistance of counsel, pleaded not guilty.[10]
Petitioner's defense consisted mainly of denial. He claims that at 7:00 o'clock in the morning of August 15,
1990, he went to Anonang, within the Municipality of Kaputian, and harvested coconuts by climbing the
coconut trees; that he went back home at 4:30 in the afternoon and he slept at 8:00 o'clock in the evening; that
while he was sleeping, his wife awakened him because Salvador Epifanio (Salvador) was asking for help, as
somebody was hacked, and he went to the place of incident with Salvador; that he found out that Crisaldo was
already wrapped in cloth and he asked Crisaldo who was responsible for stabbing him, but he did not answer;
that they loaded Crisaldo in the jeep to take him to the nearby hospital; that he and Salvador took a ride
with Crisaldo up to Del Monte where the two of them alighted and reported the incident to
the barangay captain; that the following morning, he went to Anonangto harvest coconuts; that at around 1:00
o'clock in the afternoon when he arrived home, policemen Barraga and Labrador were in his house and told him
that he was the suspect in the stabbing incident; that he was detained but he was not investigated anymore and
was ordered to go home.[11]
On July 5, 1994, the RTC rendered its Decision [12] convicting the petitioner, the dispositiveportion of which
reads:
IN
THE
LIGHT
OF
THE
FOREGOING,
finding
the
accused, Leonidas Epifanio yLazaro guilty beyond reasonable doubt of the crime of Frustrated
Murder punishable under Article 248 in relation to Article 6 of the Revised Penal Code, the
Court hereby sentence this accused to an indeterminate imprisonment of SIX (6) YEARS and
ONE (1) DAY of prisionmayor as minimum to TEN (10) YEARS of prision mayor as maximum
together with the accessory penalties provided by law, and to pay the costs.
Accused is hereby ordered to indemnify Crisaldo Alberto the sum of P6,000.00 by way of
damages.

SO ORDERED.[13]
Petitioner appealed his conviction to the CA, docketed as CA-G.R. CR No. 17995. [14]On May 22, 2002,
the CA rendered a Decision[15] affirming in toto the Decision of the RTC.
Petitioner filed a Motion
Resolution[17] dated January 14, 2003.

for

Reconsideration[16] but

it

was

denied

by the

CA in

Petitioner filed the present petition raising a sole issue for resolution, to wit:
WHETHER THE GUILT OF THE PETITIONER FOR THE CRIME OF FRUSTRATED
MURDER WAS PROVEN BEYOND REASONABLE DOUBT.[18]
Petitioner does not seek the reversal of his conviction but only that it be for the lesser offense of
attempted murder. He contends that there is no evidence that the injuries sustained by Crisaldo were lifethreatening or would have caused his death had it not been for timely medical intervention since the medical
certificate only stated that the healing time of the wounds sustained by Crisaldo was 15-30 days barring
complication, with no notation or testimony of the attending physician that any of the injuries was lifethreatening.
The Office of the Solicitor General (OSG), on the other hand, contends that the failure to present the
doctor to testify on the nature of the wounds suffered by Crisaldo was not raised as an issue in the RTC;
that petitioner is now barred from raising it in the present petition for review without offending the basic rules
of fair play, justice and due process; that petitioner did not object to the admissibility of the medical certificate
when it was offered in evidence; that the crime is frustrated murder since petitioner performed all the acts of
execution; that the three-week length of stay in the hospital of Crisaldo is not determinative of whether or not
the wounds are fatal.
The petition is impressed with merit.
The non-presentation of the doctor to testify on the nature of the wounds, while notraised as an issue in
the RTC, does not bar the petitioner from raising it on appeal. It is a well-settled rule that an appeal in a criminal
case throws the whole case wide open for review and the reviewing tribunal can correct errors, though
unassigned in the appealed judgment, or even reverse the trial courts decision on the basis of grounds other than
those that the parties raised as errors.[19]

It must be stressed that it is not the gravity of the wounds alone which determines whether a felony is
attempted or frustrated, but whether the assailant had passed the subjective phase in the commission of the
offense.

In the leading case of United States v. Eduave,[20] Justice Moreland, speaking for the Court, distinguished an
attempted from a frustrated felony. He said that 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 the acts which should produce the crime as a consequence, which act it is his intention to
perform.[21]

The subjective phase in the commission of a crime is that portion of the acts constituting the crime included
between the act which begins the commission of the crime and the last act performed by the offender which,
with prior acts, should result in the consummated crime. Thereafter, the phase is objective.[22]

In case of an attempted crime, the offender never passes the subjective phase in the commission of the crime.
The offender does not arrive at the point of performing all of the acts of execution which should produce the
crime. He is stopped short of that point by some cause apart from his voluntary desistance.[23]

On the other hand, a crime is frustrated when the offender has performed all the acts of execution which should
result in the consummation of the crime. The offender has passed thesubjective phase in the commission of the
crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing through
the subjective phase. He did all that was necessary to consummate the crime; however, the crime is not
consummated by reason of the intervention of causes independent of the will of the offender.[24]

In homicide cases, the offender is said to have performed all the acts of execution if the wound inflicted on the
victim is mortal and could cause the death of the victim barring medical intervention or attendance. [25] If one
inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical
injuries, if the offender had no intention to kill the victim; or frustrated or attempted homicide or frustrated
murder or attempted murder if the offender intends to kill the victim.[26]

Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the
commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime
was committed; and (e) words uttered by the offender at the time the injuries were inflicted by him on the
victim.[27]

In the present case, the intent to kill is very evident and was established beyond reasonable doubt
through the unwavering testimony of Crisaldo on the manner of execution of the attack as well as the number of
wounds he sustained. Crisaldo was stabbed from behind by petitioner. When Crisaldo turned around, petitioner
continued his assault, hitting Crisaldo on the left arm as the latter tried to defend himself. The treacherous
manner in which petitioner perpetrated the crime is shown not only by the sudden and unexpected attack upon
the unsuspecting victim but also by the deliberate manner in which the assault was perpetrated.[28]

Nonetheless, petitioner failed to perform all the acts of execution, because Allan came to the aid
of Crisaldo and petitioner was forced to scamper away. He did not voluntarily desist from stabbing Crisaldo, but
he had to stop stabbing when Allan rushed to help Crisaldo and recognized petitioner. Thus, the subjective
phase of the crime had not been completed.

Moreover, the prosecution failed to present testimonial evidence on the nature of the wounds sustained
by Crisaldo. The Court has discussed the importance of ascertaining the degree of injury sustained by a victim
in People v. Matyaong,[29] thus:
In considering the extent of injury done, account must be taken of the injury to the function of
the various organs, and also the danger to life. A division into mortal and nonmortal wounds, if it
could be made, would be very desirable; but the unexpected complications and the various

extraneous causes which give gravity to the simplest cases, and, on the other hand, the favorable
termination of some injuries apparently the most dangerous, render any such classification
impracticable. The general classification into slight, severe, dangerous, and mortal wounds may
be used, but the possibility of the slight wound terminating with the loss of the persons life, and
the apparently mortal ending with only a slight impairment of some function, must always be
kept in mind. x x x

The danger to life of any wound is dependent upon a number of factors: the extent of the injury,
the form of the wound, the region of the body affected, the blood vessels, nerves, or organs
involved, the entrance of disease-producing bacteria or other organisms into the wound, the age
and constitution of the person injured, and the opportunities for administering proper surgical
treatment. x x x[30]

No evidence in this case was introduced to prove that Crisaldo would have died from his wound without
timely medical attendance. It is well-settled that where there is nothing in the evidence to show that the wound
would be fatal if not medically attended to, the character of the wound is doubtful; hence, the doubt should be
resolved in favor of the accused and the crime committed by him may be declared as attempted,
not frustrated, murder.[31]

Accordingly, the imposable penalty for the crime of attempted murder, following Article 51 of the
Revised Penal Code, is prision correccional in its maximum period to prision mayorin its medium period.
Applying the Indeterminate Sentence Law, the minimum of the penalty to be imposed should be within the
range of arresto mayor in its maximum period to prisioncorreccional in its medium period, and the maximum
of the penalty to be imposed should be within the range of prision correccional in its maximum period
to prision mayor in its medium period. Since no generic aggravating or mitigating circumstance attended the
commission of the crime of attempted murder, the penalty should be two (2) years and four (4) months
ofprision correccional, as minimum; and eight (8) years of prision mayor, as maximum.

Anent the award of P6,000.00 as damages, the Court notes that the receipts showing the expenses
incurred during Crisaldo's hospitalization amounted only to P853.50.[32] As a general rule, a party seeking the
award of actual damages must produce competent proof or the best evidence obtainable to justify such award.
[33]
Only substantiated and proven expenses will be recognized in court. Nonetheless, in lieu of actual damages,
the Court grants temperate damages of P6,000.00, as it cannot be denied that Crisaldo incurred expenses during
his three-week stay in the provincial hospital, although the exact amount cannot be proved with certainty.[34]

WHEREFORE, the Decision dated July 5, 1994 of the Regional Trial Court, Branch 4,Panabo, Davao in
Criminal Case No. 91-15 is MODIFIED to the effect that petitioner is found GUILTY of ATTEMPTED
MURDER and is sentenced to suffer an indeterminate imprisonment of 2 years and 4 months
of prision correccional, as minimum, and 8 years ofprision mayor, as maximum together with the accessory
penalties provided by law; and petitioner is ordered to indemnify Crisaldo Alberto the sum of P6,000.00 as
temperate damages, and costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5848

April 30, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.
Exequiel Zaballero, Jr. for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for appellee.
LABRADOR, J.:
This is an appeal from a judgment of the Court of First Instance of Manila finding the defendantappellant herein Sy Pio, alias Policarpio de la Cruz, guilty of frustrated murder against the person of
Tan Siong Kiap, and sentencing him to suffer an indeterminate sentence of 6 years, 1 month, and 11
days of prision mayor, to 14 years, 8 months, and 1 day of reclusion temporal, to indemnify the
offended party Tan Siong Kiap in the sum of P350, without subsidiary imprisonment in case of
insolvency, and to pay the costs. The case was appealed to the Court of Appeals, but that court
certified it to this Court under the provisions of section 17 (4) of Republic Act No. 296, on the ground
that the crime charged was committed on the same occasion that the defendant-appellant had
committed crime of murder, with which the defendant-appellant was also charged.
The evidence for the prosecution shows that early in the morning of September 3, 1949, the
defendant-appellant entered the store at 511 Misericordia, Sta Cruz, Manila. Once inside he started
firing a .45 caliber pistol that he had in his hand. The first one shot was Jose Sy. Tan Siong Kiap, who
was in the store and saw the accused enter and afterwards fire a shot at Jose Sy, asked the
defendant-appellant, "What is the idea?" Thereupon defendant-appellant turned around and fired at
him also. The bullet fired from defendant-appellant's pistol entered the right shoulder of Tan Siong
Kiap immediately ran to a room behind the store to hide. From there he still heard gunshot fired from
defendant-appellant's pistol, but afterwards defendant-appellant ran away.
Tan Siong Kiap was brought to the Chinese General Hospital, where his wound was treated. He
stayed there from September 3 to September 12, 1949, when he was released upon his request and
against the physician's advice. He was asked to return to the hospital for further treatment, and he did
so five times for a period of more than ten days. Thereafter his wound was completely healed. He
spent the sum of P300 for hospital and doctor's fees.

The defendant-appellant shot two other persons in the morning of September 3, 1949, before
shooting and wounding Tan Siong Kiap; one was Ong Pian and the other Jose Sy. On September 5
information was received by the Manila Police Department that defendant-appellant was in custody of
the Constabulary in Tarlac, so a captain of the Manila police by the name of Daniel V. Lomotan
proceeded to Tarlac. There he saw the defendant-appellant and had a conversation with him. On this
occasion defendant-appellant and had a conversation with him. On this occasion defendant-appellant
admitted to Lomotan that his victims were Tan Siong Kiap, Ong Pian, and Jose Sy. The Constabulary
in Tarlac also delivered to Lomotan the pistol used by the defendant-appellant, marked Exhibit C, and
its magazine, Exhibit C-1, both of which the Constabulary had confiscated from the defendantappellant. The defendant-appellant was thereupon delivered to the custody of Lomotan, and the latter
brought him to Manila, where his statement was taken down in writing. This declaration was
submitted at the time of the trial as Exhibit D, and it contains all the details of the assaults that
defendant-appellant 3 against the persons of Tan Siong Kiap, Ong Pian, and Jose Sy. This written
statement was taken down on a typewriter and afterwards signed by the defendant-appellant in both
his Chinese and Filipino names, the latter being Policarpio de la Cruz.
According to the declaration of the defendant-appellant, some months prior to September 3, 1949, he
was employed as an attendant in a restaurant belonging to Ong Pian. Defendant-appellant's wife by
the name of Vicenta was also employed by Ong Pian's partner, Eng Cheng Suy. Prior to September 3
the relatives of his wife had been asking the latter for help, because her father was sick. Defendantappellant asked money from Ong Pian, but the latter could only give him P1. His wife was able to
borrow P20 from her employer, and this was sent to his wife's parents in Cebu. Afterwards defendantappellant was dismissed from his work at the restaurant of Ong Pian, and he became a peddler. Ong
Pian presented a list of the sums that defendant-appellant had borrowed from him, and these sums
were deducted from the salary of his wife. Defendant-appellant did not recognize these sums as his
indebtedness, and so he resented Ong Pian's conduct.
As to Tan Siong Kiap, the confession states that a few days before September 3, 1949, defendantappellant had been able to realize the sum of P70 from the sales of medicine that he peddled. He laid
his money in a place in his room, but the following morning he found that it had disappeared from the
place in which he had placed it. Tan Siong Kiap and Jose Sy, upon the discovery of the loss of money,
told defendant-appellant that he must have given the money to his wife, and that nobody had stolen it.
After this incident of the loss, the defendant-appellant used to hear Tan Siong Kiap and Jose Sy and
other Chinamen say that the money had not been actually stolen, but that he lost it in gambling.
Because of these accusations against him, he nurtured resentment against both Tan Siong Kiap and
Jose Sy.
So early in the morning of September 3, while a Chinaman by the name of Ngo Cho, who the
possessor of a caliber .45 pistol, was away from his room, defendant-appellant got his pistol and
tucked it in his belt. With this pistol he went to the restaurant at 822 Ongpin, and there shot Ong Pian.
After shooting him, he proceeded to 511 Misericordia, in store where Jose Sy and Tan Siong Kiap
were, and there he fired at them. Then he escaped to Legarda Street, in Sampaloc, where he
borrowed P1 from his relatives. From there he went to Malabon, to the house of his mother, to whom
he told he had killed two persons and from he asked money.
The foregoing is the substance of the written declaration made by the defendant-appellant in Exhibit
D on September 6, 1949. At the time of the trial, however, he disowned the confession and explained
that he signed it without having read its contents. He declared that it was not he who shot the three
victims, but it was one by the name of Chua Tone, with whom he had previously connived to kill the
three other victims. He introduced no witnesses, however, to support his denial. Neither did he deny
that he admitted before Captain Lomotan having killed the three persons, or having been found in
Tarlac in possession of the caliber .45 pistol, Exhibit C, and its magazine, Exhibit C-1. In his crossexamination he admitted many of the incidents mentioned in the confession, especially the cause of
his resentment against his victims Ong Pian, Jose Sy, and Tan Siong Kiap.
The trial court refused to believed his testimony, and therefore, found him guilty of the crime charged.

On this appeal counsel for the defendant-appellant claims that the trial court erred in not finding that
Tan Siong Kiap received the shot accidentally from the same bullet that had been fired at Jose Sy,
and in finding that defendant-appellant has committed a crime distinct and separate from that of
murder for the slaying of Jose Sy. We find no merit in this contention. According to the uncontradicted
testimony of the offended party Tan Siong Kiap, when the latters saw defendant-appellant firing shots
he asked him why he was doing so, and the defendant-appellant, instead of answering him, turned
around and fired at him also. It is not true, therefore, that the shot which hit him was fired at Sy.
It is also contended that the evidence is not sufficient to sustain the judgment of conviction. We also
find no merit in this contention. The evidence submitted to prove the charge consists of: the
uncontradicted testimony of the victim himself; the admissions made verbally by the defendantappellant before Captain Lomotan in Tarlac; the fact that the defendant-appellant had escaped and
was found in Tarlac; his possession of the .45 caliber pistol coupled with the fact, attested to by the
testimony of the physician who examined and treated the wounds of Tan Siong Kiap, that the wounds
found in his person must have been caused by the caliber .45 bullet; and, lastly, the confession of the
defendant-appellant himself, Exhibit D, which he was not able to impugn. As against this mass of
evidence, defendant-appellant has only made a very unbelievable story that it was not he but another
that had committed the crime charged. His admissions at the time of the trial regarding the incidents,
as well as the cause of his having assaulted his victims, coincide exactly with the reasons given in his
written confession. This shows that he had made the confession himself, for nobody but himself could
have known the facts therein stated. The claim that the offense has not been proved beyond
reasonable doubt must be dismissed.
The defendant-appellant lastly claims that the lower court also erred in sentencing him to pay an
indemnity of P350. The offended party testified that he actually spent P300 for hospital and doctor's
fees, and that he was confined in the hospital for nine days. The above facts stand uncontradicted.
This assignment of error must also be dismissed.
It is lastly contended that the defendant-appellant should be found guilty only of less serious physical
injuries instead of the crime of frustrated murder as defendant-appellant admitted in his confession in
the open court that he had a grudge against the offended party, and that he connived with another to
kill the latter. The intent to kill is also evident from his conduct in firing the shot directly at the body of
the offended party.
But while intent to kill is conclusively proved the wound inflicted was not necessarily fatal, because it
did not touch any of the vital organs of the body. As a matter of fact, the medical certification issued
by the physician who examined the wound of the offended party at the time he went to the hospital,
states that the wound was to heal within a period of fourteen days, while the offended party actually
stayed in the hospital for nine days and continued receiving treatment thereafter five time for the
period of more than ten days, or a total of not more than thirty days. The question that needs to be
determined, therefore, is: Did the defendant-appellant perform all the acts of execution necessary to
produce the death of his victim?
In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47 Phil., 768 and People vs.
Borinaga, 55 Phil., 433, this Court has held that it is not necessary that the accused actually commit
all the acts of execution necessary to produce the death of his victim, but that it is sufficient that he
believes that he has committed all said acts. In the case of People vs. Dagman, supra, the victim was
first knocked down by a stone thrown at him, then attacked with a lance, and then wounded by bolos
and clubs wielded by the accused, but the victim upon falling down feigned death, and the accused
desisted from further continuing in the assault in the belief that their victim was dead. And in the case
of People vs. Borinaga, supra, the accused stabbed his intended victim, but the knife with which he
committed the aggression instead of hitting the body of the victim, lodged in the back of the chair in
which he was seated, although the accused believed that he had already harmed him. In both these
cases this Court held that of the crime committed was that of frustrated murder, because the
subjective phase of the acts necessary to commit the offense had already passed; there was full and
complete belief on the part of the assailant that he had committed all the acts of execution necessary
to produce the death of the intended victim.

In the case at bar, however, the defendant-appellant fired at his victim, and the latter was hit, but he
was able to escape and hide in another room. The fact that he was able to escape, which appellant
must have seen, must have produced in the mind of the defendant-appellant that he was not able to
his his victim at a vital part of the body. In other words, the defendant-appellant knew that he had not
actually all the acts of execution necessary to kill his victim. Under these circumstances, it can not be
said that the subjective phase of the acts of execution had been completed. And as it does not appear
that the defendant-appellant continued in the pursuit, and as a matter of fact, he ran away afterwards
a reasonable doubt exist in our mind that the defendant-appellant had actually believed that he has
committed all the acts of execution or passed the subjective phase of the said acts. This doubt must
be resolved in favor of the defendant-appellant.
We are, therefore, not prepared to find the defendant-appellant guilty of frustrated murder, as charged
in the information. We only find him guilty of attempted murder, because he did not perform all the
acts of execution, actual and subjective, in order that the purpose and intention that he had to kill his
victim might be carried out.
Therefore, the judgment appealed from should be, as it is hereby, modified and the defendantappellant is found guilty of the crime of attempted murder, and the sentence imposed upon him
reduced to an indeterminate penalty of from 4 years, 2 months, and 1 day of prision correccional to
10 years of prision mayor. In all other respects the judgment is affirmed. With costs against the
defendant-appellant.
Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and Concepcion, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 78781-82 October 15, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRO RAVELO, JERRY RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN,
NICOLAS GUADALUPE AND HERMIE PAHIT, accused-appellants.
The Solicitor General for plaintiff-appellee.
Robert J. Landas for acussed-appellants.

GUTIERREZ, JR., J.:p

The accused Pedro Ravelo, Bonifacio "Patyong" Padilla, Romeo Aspirin, Nicolas Guadalupe
and Hermie Pahit appeal the two (2) judgments of the Regional Trial Court of Tandag, Surigao
del Sur, Branch 27, which convicted them of murder of one Reynaldo Cabrera Gaurano and of
frustrated murder of Joey Lugatiman.
In the murder case (Criminal Case No. 1187), each of the accused was sentenced to serve the
penalty ofreclusion perpetua and to severally pay an indemnity of P25,000.00 to the mother of
the victim. In the frustrated murder case (Criminal Case No. 1194), each of them was

sentenced to serve the penalty of imprisonment ranging from eight (8) years and one (1) day
of prision mayor as minimum to ten (10) years of prision mayor as maximum.
The accused were all charged with kidnapping with murder and kidnapping with frustrated
murder. However, the trial court found accused-appellants guilty only of murder and frustrated
murder as convicted. The accused Josen Ravelo and Jerry Ravelo are still at large.
The present petition was originally one that sought the issuance of a writ of habeas corpus.
The Court instead resolved to treat it as an appeal in view of the near capital nature of the
crimes for which the appellants were convicted.
The accused-appellants are all membersof the Civilian Home Defense Force (CHDF) stationed
at a checkpoint near the airport at Awasian in Mabua, Tandag,Surigao del Sur. The prosecution
alleged that they stopped the two (2) victims for questioning on the suspicion that the latter
were insurgents or members of the New People's Army. (NPA).
In Criminal Case No. 1187, the accused-appellants were charged with having committed
kidnapping with murder in the following manner:
That at approximately 6:30 o'clock in the evening, May 21, 1984, in Barangay
Dawis, San Agustin Sur, municipality of Tandag, province of Surigao del Sur,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, PEDRO RAVELO, JERRY RAVELO, BONIFACIO `Patyong' PADILLA,
ROMEO ASPIRIN, NICOLAS GUADALUPE, HERMIE PAHIT and JOSEN RAVELO,
conspiring, confederating, and mutually helping each other did, then and there,
wilfully, unlawfully and feloniously take, pick-up, kidnap by meansof force, one
REYNALDO CABRERA GAURANO, a minor, while the latter was walking along
Tandag Bridge at barangay Dawis, San Agustin Sur, then the above-named
accused carried away the said, Reynaldo Cabrera Gaurano to barangay Awasian
and detained, kept and locked him in a room at the house of Pedro Ravelo, one of
the accused herein, from 7:00 o'clock in the evening, May 21, 1984 to 4:00 o'clock
dawn, May 22, 1984, or a period of 10 hours under restraint and against the will of
said minor, Reynaldo Cabrera Gaurano and that the above named accused during
the said period of kidnapping, maltreated and refused to release said Reynaldo
Cabrera Gaurano, and while on the same period of time at about 4:00 o'clock
dawn, May 22, 1984, at barangay Awasian, Tandag, Surigao del Sur and within the
jurisdiction of this Honorable Court, the above-named accused, Pedro Ravelo,
Jerry Ravelo, Bonifacio `Patyong' Padilla, Romeo Aspirin, Nicolas Guadalupe,
Hermie Pahit, and Josen Ravelo, conspiring, confederating, and mutually helping
each other, armed with a pistol, armalites, and carbines, with intent to kill, with
treachery and evident premeditation did, then and there wilfully, unlawfully and
feloniously, assault, attack, cut, slash, and burn, the said Reynaldo Cabrera
Guarano, hitting and inflicting upon the latter, the following wounds or injuries:
1. Blisters formation noted all over the body reddish in color, which easily peel off
on pressure; containing clear fluids; with hemorrhagic reaction beneath blisters;
2. Swollen face with contusion and hematoma formation; loosening of hair notes;
right ear missing with circular incised wound around;
3. Incised wound 24 cm. length around the neck cutting the esophagus, pharynx,
arteries and veins; up to the 2nd cervical bone in depth;
4. Contusions and hematomas noted anterior chest wall, abdomen and at the
back; upper and lower extremeties of different sizes and forms. (Rollo, pp. 8-9)
In Criminal Case No. 1194, they werecharged with kidnapping with frustrated murder
committed as follows:

That on or about 1:00 o'clock in the morning on May 22, 1984 in barangay
Awasian, municipality of Tandag, province of Surigao del Sur, Philippines and
within the jurisdiction of this Honorable Court, the above named accused PEDRO
RAVELO, HERMIE PAHIT, BONIFACIO PADILLA, ROMEO ASPIRIN, NICOLAS
GUADALUPE, JERRY RAVELO AND JOSEN RAVELO, conspiring, confederating
and mutually aiding one another armed with the deadly weapons such as pistols,
armalite and carbine, did then and there wilfully, unlawfully and feloniously by
means of force and at gun point stop the hauler truck of the South Sea Merchant
Company which was on the way to Tandag, Surigao del Sur from sitio
Lumbayagan, Barangay Maticdom, municipality of Tandag, Surigao del Sur and
kidnap one JOEY LUGATIMAN, who is on board the said hauler truck by forcibly
taking said Joey Lugatiman and carry him to the house of accused Pedro Ravelo
then to the Airborne Headquarters at Mabua, Tandag, Surigao del Sur, and while
thereat and in pursuance of their conspiracy, with intent to kill, with evident
premeditation and treachery and by taking advantage of their superior strength
being armed with deadly weapon did then and there wilfully, unlawfully and
feloniously assault, by hitting and inflicting upon the latter the following wounds
or injuries:
1. Small abrasion and hematoma, both wrist and left ankle;
2. Multiple small abrasions, chest and right neck and right ankle;
3. Multiple small abrasions and small hematoma, back;
4. Abrasion, upper left lips. (Rollo, pp.18-19)
The trial court based its findings on evidence presented by the prosecution at the trial proper
which commenced several months after the informations were filed. The prosecution evidence
in Criminal Case No. 1187 are quoted from the judgment, thus:
Witness Edilberto Salazar, 17 years old, student and resident of Tandag, testified
that he knew all the accused Pedro Ravelo, Bonifacio Padilla, Romeo Aspirin,
Nicolas Guadalupe and Hermie Pahit. On May 21, 1984 at 5:30 in the afternoon, he
was with a certain Diego Gallardo and Reynaldo Cabrera Gaurano walking from
Dawis to Dagocdoc to attend a dance. The dance not having began being too
early yet, they decided to go back to Dawis. On their way back while crossing the
Tandag bridge across the Tandag river, the accused Pedro Ravelo, Jerry Ravelo,
Josen Ravelo, Bonifacio Padilla, Romeo Aspirin, Hermie Pahit and Nicolas
Guadalupe stopped them by pointing their guns. He and Diego Gallardo ran away
towards a group of old junk tractors and hid there. He saw Reynaldo Gaurano
chased by all the accused. He saw Reynaldo Gaurano ran up to the house of a
certain Fernando Cortes which was just opposite the tractors they were hiding,
and which was just across the road in front of the house of Fernando Cortes.
Reynaldo Gaurano was caught up in the house by Jerry Ravelo, Bonifacio Padilla
and Nicolas Guadalupe. He saw Reynaldo Gaurano forced and dragged down to a
waiting pick-up on the road by Jerry Ravelo, Bonifacio Padilla and Nicolas
Guadalupe. Reynaldo Gaurano was loaded on the pick-up owned and driven by
the accused Pedro Ravelo. All the accused, together with Reynaldo Gaurano rode
on the pick-up towards the Tandag airport at Awasian. After Reynaldo Gaurano
disappeared, he and Diego Gallardo went to the police and reported the matter
that Reynaldo Gaurano was brought by the accused to the airport.
On May 23, 1984, he was with the group who exhumed the body of Reynaldo
Gaurano under a mango tree near the Tandag airport and pointed to the
investigator that that was the body of Reynaldo Gaurano with blisters, without ear
and a big wound on the neck. Placed on the mat the cadaver was brought to the
Mata Funeral Parlor at Tandag, Surigao del Sur in that morning of May 23, 1984.

Witness Francisco Villasis, 48 years old, farmer and resident of Awasian, testified
that he knew very well all the accused and that he personally saw them in the
early dawn of May 22, 1984. He declared that he was at the Awasian creek near a
mango tree catching crabs with the use of a "panggal", a bamboo knitted trap.
From a distance of around twenty meters away, he saw a man hanging from the
mango tree over a fire. He saw the accused Jerry Ravelo placed fire on the
hanging person and the accused Romeo Aspirin placed a burning torch made of
dried coconut leaves at the back of the hanging person. The man hanging was
not known to him. The man hanged was also surrounded by Pedro Ravelo, Josen
Ravelo, Nicolas Guadalupe, Hermie Pahit and Bonifacio Padilla. For five minutes
watching, he saw the clothing and body burned, he heard the moanings of the
person and heard the laughters of the accused. After witnessing that horrible
incident he went home hurriedly. On cross examination he further stated that he
saw for the first time the man already hanging under a fire (sic).
Witness Joey Lugatiman, 22 years old and resident of Dawis, Tandag, testifies
that all the accused are known to him for a long time. On May 21, 1984, with ten
companions they went to a place in the interior called Maticdum, Tandag, Surigao
del Sur. After five hours stay, he, together with his companions left Maticdum past
midnight for Tandag on a loggingtruck. As soon as they passed by the airport,
they were stopped by the accused and were told to go down from the truck for
questioning. He was brought to the house of the accused Pedro Ravelo near the
checkpoint. He was asked if he was Joey Lugatiman and if he knew Reynaldo
Gaurano. There at the headquarters, he was asked if he was an NPA. For almost
an hour stay at the headquarters he was boxed, kicked and manhandled by Pedro
Ravelo and by the other accused with the use of their guns until he became
almost unconscious. Then, from the headquarters at Mabua on that early dawn he
was brought again back in the same pick-up to Awasian airport, to the house of
Pedro Ravelo and then to the house of Bonifacio Padilla. Before proceeding to
the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano, one meter
away, already weak with bruises on his face, hands tied at the back and with a
gag around the mouth, moving as if in the act of trying to free himself, with a
bleeding mouth. When he reached the house of Bonifacio Padilla, he was chained
and tied to the wall near the window of the house. Alone, he peeped through the
window and saw Reynaldo Gaurano hanging up the mango tree with fire below
him. He heard the moanings of Reynaldo Gaurano while hanging from the mango
tree thirty meters away from the window of the house of Bonifacio Padilla. He saw
Pedro Ravelo and Josen Ravelo set fire on the body of Reynaldo Gaurano. At 5:00
o'clock a.m. May 22, 1984, when alone, after being told that he would be killed at
9:00 o'clock in the evening at the Awasian bridge, he escaped by being able to
untie himself at 10:00 o'clock in the morning of May 22, 1984. He reported what
happened to him and to Reynaldo Gaurano, to his parents and then to the police
authorities and later submitted for physical examination on that day, May 22, 1984
and finally was investigated on May 23, 1984 in connection with this case. On
cross examination he said that he knew all the accused. He knew that all the
accused are members of the CHDF.
Witness Zosima Gaurano, 46 years old, market vendor, a native of Tandag,
testified that she is the mother of Reynaldo Gaurano. Her son Reynaldo Gaurano
left Cebu City on April 12, 1984 for Tandag. On May 22, 1984 she received a
telegram from her sister Remedios Fernandez that her son Reynaldo is dead. She
left for Tandag upon receipt of the telegram and arrived at Tandag on May 24,
1984. Upon her arrival she went to the Mata Funeral Parlor and then she found the
dead body of her son Reynaldo Gaurano inside the coffin and she saw many
parts of the body of her son with burns. She suffered moral damages and other
expenses to the tune of P64,350.00.

Witness Remedios Cabrera Fernandez, widow, meat vendor and resident of

Tandag testified that Reynaldo Gaurano is her nephew because his mother
Zosima is her younger sister. Her nephew Reynaldo Gaurano was here in Tandag
on vacation. On May 20, 1984, with two companions, Diego Gallardo and Edilberto
Salazar, he failed to go home to the house of her sister. After the second day, May
22, 1984 at around 5:00 o'clock in the afternoon Edilberto Salazar and Diego
Gallardo informed her that Reynaldo Gaurano was kidnapped by Pedro Ravelo
and his men. The message was relayed to her to Atty. Buenaflor and to Col. Jesus
Hermosa. On the following day, May 23, 1984, Col. Hermosa, with other officers
inspected the house of Pedro Ravelo and the nearby surroundings at Awasian.
She was made to Identify an exhumed body at the back of the house of Pedro
Ravelo near the Mango tree. She saw the dead body of her nephew Reynaldo
Gaurano without an ear, the neck was almost cut, entire body with blisters, and
naked. His body was pictured and later on brought to the Mata Funeral Parlor at
Tandag. She requested Dr. Romeo delos Reyes of the Tandag Provincial Hospital
to conduct an autopsy and after which the dead body of Reynaldo Gaurano was
embalmed to await the arrival of the mother from Cebu City.
Witness Dr. Romeo delos Reyes, a senior Resident physician of the Tandag
Provincial Hospital testified that he conducted an autopsy on the dead body of a
certain Reynaldo Gaurano, Exhibit "A", at the Mata Funeral Parlor. He found
blisters formation caused by fire burns throughout; the body was reddish and
skin peels off easily; swollen face, hematoma, contusion, losing of hair, wound
around the neck; and these injuries could have been inflicted 36 to 48 hours
before the autopsy. Death certificate, Exhibit "B" was issued. The burns and the
injuries above stated were suffered before Reynaldo Gaurano died.
Witness Roberto Awa, a photographer of the Similar Studio who, for fifteen years,
is a photographer at Tandag, testified that he took the pictures of a dead man
inside a hole upon orders of Col. Hermosa at Awasian near the airport. He took
pictures as shown in Exhibit "C", "C-1"; he took 8 positions of the dead body.
While yet inside the holeexhibit "D" and as shown in Exhibit "E" and "F", that was
the dead body of Reynaldo Gaurano near the mango tree; Exhibit "G", while the
cadaver was inside the hole and Exhibit "H" is the picture while the body was
lying on the mat.
Witness Cresenciano Rulona, Police Investigator of the Tandag Police Force,
testified that at around 8:00 o'clock in the morning of May 23, 1984, he was the
assistant team leader of the group that proceeded to Tambacan, Awasian, Tandag
to look for and inspect the place where a certain Reynaldo Gaurano was
kidnapped. Under a mango tree and about 25 meters near the house of Bonifacio
Padilla the group recovered a P.25 coin, a small comb, two zippers and burned
pieces ofcloth and burned coconut leaves, together with new excavated soil.
Further search under the mango tree led to the very place where the body of
Reynaldo Gaurano was buried. At around 10:00 o'clock a.m., May 23, 1984, they
exhumed the dead body which was buried under a depth of around one meter
under the mango tree which was around 25 meters from the house of Bonifacio
Padilla and around 150 meters from the house of Pedro Ravelo. The cadaver was
first Identified to be that of Reynaldo Gaurano by Edilberto Salazar. A
photographer was called and pictures were taken of the dead body of Reynaldo
Gaurano from the hole and then the body was brought to the surface and placed
on the mat. Not one of the accused was present during the period while the group
was searching and exhuming the body of Reynaldo Gaurano. The body of
Reynaldo Gaurano shows signs of burns and several injuries, and was finally
brought to the funeral parlor at Tandag.
As shown by the evidence, Reynaldo Cabrera Gaurano died on May 22, 1984 at
Awasian, Tandag, Surigao del Sur. His death was the result of the shock

secondary to the wound around the neck, Exhibit "A", and occurred while he was
hanged by the accused with hands tied to a branch of a mango tree. Sufferings of
pains, through his moanings, were augmented and aggravated by the tortures
inflicted as vividly seen through the removal of the right ear, the wound around
the neck and placing of fires on his body, and the fire below his feet. Not only
were these acts brutal and cruel but also heartless and savage acts of the
accused, devoid of an iota of sympathy, who, instead, were happy and delighted
to see the miseries suffered by their victim. Further, it was shown that they
helped one another or conspired with one another in torturing with the use of
their firearms, and in killing Reynaldo Gaurano. (Rollo, pp. 10-16)
Meanwhile, the prosecution evidence in Criminal Case No. 1194 are as follows:
The evidence of the prosecution consisted of the testimonies of the witnesses
and the Medical Certificate. Witness Joey Lugatiman, 22 years old, resident of
Dawis, Tandag, Surigao del Sur testified that he personally knew all the accused
for quite a long time. On May 21, 1984 with ten companions he went to a place
called Maticdom, Tandag, Surigao del Sur. After staying at Maticdum for five
hours he went home on board on a cargo truck. On the way near the Tandag
Airport they were stopped by all the accused. They, including himself, were
ordered by the accused Pedro Ravelo to come down from the truck. Then he was
brought to the nearby house of Pedro Ravelo and there he was asked if he was
Joey Lugatiman and if he knows Reynaldo Gaurano.
His companions were ordered to proceed to Tandag while he was loaded on a
service pick up driven by the accused Pedro Ravelo. He was brought by all the
accused to the Headquarters of the Airborne Company at Mabua, Tandag, Surigao
del Sur. In the Headquarters of the Airborne, he was interrogated if he was an
NPA. After hearing his denial of being an NPA he was boxed, kicked and pistol
whipped by the accused Pedro Ravelo and his co-accused. He was manhandled
by the accused with the use of the firearms for almost an hour. Later he was
brought back again to Awasian Airport to the house of Pedro Ravell (should be
Ravelo) then to the house of Bonifacio Padilla. But before proceeding to the
house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano one meter away,
already weak with bruises on the face, hands, tied at the back and gagged around
the mouth. Reynaldo Gaurano could not talk and he was moving in the act to free
himself and with a bleeding mouth. Upon arriving in the house of Bonifacio
Padilla he was chained and hogtied near the open window by the companions of
Pedro Ravelo. Not long after, through the window, he saw Reynaldo Gaurano
hanging up the mango tree and a big fire was set on the ground. He heard the
groaning and moaning of Reynaldo Gaurano. He saw Pedro Ravelo and Jerry
Ravelo setting fire on the right and left side of Reynaldo Gaurano with the use of
dried coconut leaves. He saw all the accused surrounding and watching the
hanging and burning of Reynaldo Gaurano. It was Pedro Ravelo who cut the right
ear and who also slashed the neck of Reynaldo Gaurano. He could not shout
because he was afraid. While lying down after he saw the horrible incident he fell
asleep. At around 5:00 o'clock in the morning of May 22, 1984 he awoke and saw
Bonifacio Padilla bringing nylon line with which he was tied to a piece of wood;
while Nicolas Gaudalupe gagged him, and he was blind folded by Hermie Pahit.
While the three were about to leave him behind, he heard them saying that they
will kill him at the Awasian bridge at 9:00 o'clock in the evening of May 22, 1984.
When he was left alone in that house he successfully freed himself. He jumped
out of the window and escaped via the nipa palm grove. As consequences of the
manhandling of the accused, he suffered several bruises on the breast, at the
back and his mouth. He was physically examined by a doctor in the Provincial
Hospital on that day, Exhibit "A", "A-1" and "A-2" which is Exhibit "1" and "2", "1A", and "1-B" for the defense. On cross examination, he testified that he escaped
at around 10:00 o'clock in the morning from the house of Bonifacio Padilla, and

that he knew all the accused to be members of the Civilian Home Defense Force
(CHDF). He testified that the house of Pedro Ravelo and the house of Bonifacio
Padilla is around one hundred (100) meters away from each other.
Witness Dr. Petronila Montero testified that she is a resident physician of the
Provincial Hospital, and on May 22, 1984 she examined Joey Lugatiman and she
issued a medical certificate, Exhibit "A". All her findings were placed down in
Exhibit "A". Upon being cross-examined, she testified that the hematomas, small
abrasions will not cause death. When she examined Joey Lugatiman, she found
that he was weak and haggard caused by the injuries mentioned in Exhibit "A".
Witness Emilio Espinoza, 68 years old, farmer, resident of Awasian, Tandag
testified that while he was tendering his carabao near the house of Bonifacio
Padilla he was surprised to see Joey Lugatiman, wearing blue t-shirt and a
jogging pants jumped out of the window of the house of Bonifacio Padilla, twelve
meters away from him. He saw Joey Lugatiman ran towards the nipa palm then
ran towards the airport. He knew Joey Lugatiman because during the barrio fiesta
Joey used to stay in his house at Awasian.
Witness Bernardo Frias, 21 years old, farmer and resident of Awasian, testified
that on May 22, 1984 he was in Maticdom together with Joey Lugatiman, Miguel,
Gregorio Urbiztondo, Leonildo Naragas, Jesus Espinoza, Mauricio Estoya, the
driver and a helper from 5:00 o'clock in the afternoon and started to go home at
around 11:00 o'clock p.m. for Tandag. On the way, near the airport, he, together
with his companions on a logging truck was stopped by the accused Pedro
Ravelo, Jerry Ravelo, Josen Ravelo, Hermie Pahit, Bonifacio Padilla, Romeo
Aspirin and Nicolas Guadalupe. They were ordered to come down and were made
to identify each other. He saw Bonifacio Padilla dragged Joey Lugatiman to the
house of Pedro Ravelo. It was Pedro Ravelo who later brought Joey Lugatiman to
the pick-up. They were ordered to board on the truck except Joey Lugatiman who
loaded in the pick-up driven by Pedro Ravelo. Then, the accused Bonifacio
Padilla ordered the group to proceed to Tandag while Joey Lugatiman was left
behind. He reported to the police authorities that his companion Joey Lugatiman
was being held under arrest at Awasian and that he knows all the accused before
this incident. (Rollo, pp. 21-24)
The accused-appellants were not able to or did not present evidence on their behalf, nor were
they themselves able to confront the prosecution witnesses who testified against them except
through a counsel de oficio appointed by the trial judge to represent them namely, Atty.
Pretextato Montenegro and Atty. Florito Cuartero, in place of their defense counsel, Atty.
Eliseo Cruz.
The continued absence of Atty. Cruz, a Quezon City-based lawyer who perennially made
requests for postponements by telegrams stating his inability to appear for health reasons,
led to the refusal by the accused-appellants to be present at the trial. The accused-appellants
alleged that Atty. Cruz left an instruction that they will not submit themselves to trial without
him.
The accused-appellants now maintain that they did not "waive" their right to be present during
the trial because their refusal was not done by their own free will but only in accordance with
their lawyer's instructions.
The Court notes that Atty. Cruz resorted to several other delaying tactics aside from sending
telegraphic notes requesting for postponements. He filed a petition for change of place of
detention and venue for trial before this Court, which denied it; a first petition for habeas
corpus on the ground that they should be tried by a military tribunal, which petition was
denied; and a motion for new trial on the ground of lack of due process due to improper
waiver of presence at the trial. This motion for new trial was granted to give the accused-

appellants a last chance to be heard and be present. Still, the defense counsel failed to appear
and so did the appellants.
In their second petition for habeas corpus which we now treat as an appeal, Atty. Cruz failed to
file the required brief. The Court then appointed a new counsel de oficio for the accusedappellants.
Accused-appellants raised the following alleged errors of the trial court:
I
THE LOWER COURT'S FINDING THAT ACCUSED-APPELLANTS ARE GUILTY OF
FRUSTRATED MURDER HAS NO BASIS IN FACT AND IN LAW.
II
THE LOWER COURT ERRED IN CONCLUDING THAT ACCUSED-APPELLANTS
WAIVED THEIR RIGHTS TO BE PRESENT DURING THE TRIALS AND TO
PRESENT EVIDENCE TO PROVE THEIR INNOCENCE (Brief for Appellants, pp. 1011; Rollo, p. 144)
It is contended that there can be no frustrated murder committed in Criminal Case No. 1194
absent any proof of intent to kill, which is an essential element of the offense of frustrated
murder.
Appellants aver that the trial court erroneously based its conclusion on the fact that when
Lugatiman was tied and gagged, the latter heard one of the accused-appellants utter that they
would kill him at Awasianbridge.
The trial court made the following inference which we find to be erroneous:
To this Court the real intention to kill Joey Lugatiman was made manifest at 5:00
in the morning of May 22, 1984 when the accused Bonifacio Padilla together with
Hermie Pahit and Nicolas Guadalupe tied his hands to the wall with a nylon line
and gagged him; and when the accused said they will kill him (Joey Lugatiman) at
9:00 o'clock p.m. at Awasian bridge. These final and parting words uttered to Joey
Lugatiman eloquently expressed intent to kill. Killing, however, was not
consummated because Joey Lugatiman was able to escape at around 10:00
o'clock in the morning of May 22, 1984. (Rollo, p. 25)
The facts and evidence on record do not show anything from which intent to kill could be
deduced to warrant a conviction for frustrated murder. A mere statement by the accused
stating that Lugatiman would be killed is not sufficient proof of intent to kill to convict a
person of frustrated murder.
In a crime of murder or an attempt or frustration thereof, the offender must have the intent or
the actual design to kill (US v. Burns, 41 Phil. 418 [1921]) which must be manifested by
external acts. For there to be frustrated murder, the offender must perform all the acts of
execution that would produce the felony as a consequence, but the felony is not thereby
produced by reason of causes independent of the will of the perpetrator. A verbal expression
that Lugatiman would be killed sixteen (16) hours after such statement was made is not
sufficient to show an actual design to perpetrate the act. Intent must be shown not only by a
statement by the aggressor of the purpose to kill, but also by the execution of all acts and the
use of means necessary to deliver a fatal blow while the victim is not placed in a position to
defend himself. However, after the performance of the last act necessary, or after the
subjective phase of the criminal act was passed, the crime is not produced by reason of
forces outside of the will of the aggressor. (People v. Borinaga, 55 Phil., 433 [1930]).

Tying the victim's left leg with a chain on a 2" by 3" piece of wood and leaving him inside the
house of accused-appellant, Bonifacio Padilla are not acts that would result in death. These
were done only to restrain his liberty of movement for the period of time the accusedappellants were busy hanging and burning the body of Reynaldo Gaurano some thirty (30)
meters away from where Lugatiman was left. Also, tying Lugatiman's hands behind his back
and his whole body to the wall, and blindfolding him were for the purpose of restraining his
liberty until the evening of May 22, 1984 came.
Accused-appellants also maintain that the injuries sustained by Lugatiman from the
manhandling at the Headquarters of the Airborne Company were not fatal as stated by the
prosecution's expert witness, Dr. Petronila Montero; hence, there can be no frustrated murder.
This is supported by the records (Exhibit "A-2", Records of Criminal Case No. 1194, p. 21;
TSN, June 4, 1985, pp. 24-26) Lugatiman did not lose consciousness as a result of the blows
he sustained (TSN, May 31, 1985, p. 49, Record, p. 115)
It is worthy to note that the trial court, in concluding the existence of frustrated murder, did
not even use as its basis, the manhandling of Lugatiman. The trial court in fact concedes that
the real purpose of the manhandling or torture was to have Lugatiman admit and confess his
being a member of the New People's Army (NPA) and the activities of the NPA's. It was the
statement made by the accused-appellant NicolasGuadalupe that Lugatiman would later be
killed, that was the basis of the court for inferring the commission of frustrated murder.
According to the trial court, murder was not committed because of the timely escape. Escape
from the aggressors cannot establish frustrated murder without first showing that the
aggressors intended to kill and that they really attacked the victim.
Under the circumstances, accused-appellants could not even be convicted of an attempt to
commit murder. There was no commencement of the criminal act by over acts which have a
direct connection with the crime of murder intended to be committed. As stated earlier the
manhandling, express statement of purpose, and the restraint of liberty were not such as to
put the victim in danger of an imminent death. The small abrasions and hematomas of the
victim resulting from the torture by the accused were not mortal. After the victim was
restrained of his liberty immediately before Gaurano was killed, he was able to watch how
Gaurano was burned hanging upside down from a mango tree near the Awasian bridge. Due to
his fatigue and extreme weakness, he was even able to lie down and sleep after looking at the
horrible incident. (TSN, May 31, 1985, pp. 22-23)
During the long period of time Lugatiman was informed that "he would be killed" and was left
behind (5:00 in the morning) until he was able to escape at 10:00 in the morning, it was not
certain whether or not appellants would really kill him as they did to Gaurano. Anything could
have happened in between. There was no distinct evidence to prove that the accused
appellants were really decided on killing him at the time specified.
The records show that Lugatiman himself was not sure that the accused-appellants would
pursue it.
The uncertainty can be seen from Lugatiman's testimony on cross-examination, thus:
xxx xxx xxx
Q. Why did you say a while ago that "I will be the next one to be hung
and to be killed by Ravelo and his group"?
A. I was just afraid that I will be the next.
Q. Now, when you saw these persons burning the body of Reynaldo,
did you hear also what the people around Reynaldo were talking of?
A. What I heard was their laughing and the moaning.

Q. And you heard their laughing?

A. Yes.
Q. Why did you know that they were laughing?
A. Because I heard it.
Q. Their appearance you can see?
A. Their appearance is clear because there is a big light.
Q. And your name was never mentioned that you will be the next to
be hung?
A. I did not hear them saying.
Q. There were also no other people like you who were apprehended
or being detained by Pedro Ravelo and his group?
A. I did not see.
Q. You only saw Reynaldo Gaurano, including yourself detained by
Ravelo and his group on May 21, in the early morning rather, on May
22, 1984 dawn?
A. Yes. (TSN, May 31, 1985, pp. 54-55)
After a review of the allegations of the information in Criminal Case No. 1194 and the evidence
received and admitted by the court a quo, the Court is of the view that accused-appellants are
not guilty of frustrated murder but only the crime of slight physical injuries. There is evidence
to show that the several small abrasions on the chest, right neck and right ankle of Lugatiman
as well as the hematoma at his back was due to the hitting by a rough, hard object like a butt
of a gun. The prosecution witness, Dr. Montero testified that the injuries were inflicted by
some other persons aside from the victim, and needed medical treatment of four (4) to five (5)
days to avoid infection. (TSN, June 4, 1985, pp. 21-26)
Accused-appellants aver that there was no deliberate waiver on their part of their right to be
present at the scheduled hearing dates because they "did not appear to know the import of
their decision not to appear in the trials." According to them, the judge should have explained
to them the meaning and the consequences of their decision not to appear.
The issue of due process had been fully considered by this Court when we acted on the
habeas corpus petition. In our May 8, 1988 resolution, we outlined in detail the reasons for our
finding of dilatory tactics on the part of the petitioners and their counsel and why the lower
court correctly proceeded with trial.
After stating the various incidents characterizing the initial proceedings and the trial of the
case, we stated:
xxx xxx xxx
The petitioners are members of the Civilian Home Defense Force (CHDF) who
have been convicted of murder and frustrated murder committed under
particularly brutal circumstances. A notice of appeal was filed thirty-nine (39)
days from the promulgation of judgment and was clearly out of time. A motion for
new trial was also characterized by plainly dilatory tactics in its handling.

Were it not for the effectivity of the present Constitution, there is a likelihood that
the petitioners would have been sentenced to capital punishment. The nearcapital nature of the crimes for which the petitioners were convicted and the
rather unusual circumstances surrounding the trial of the two cases and the
failure to appeal, however, call for a closer look at the judgments of conviction.
This can best be done by calling for all the records of the case including the
transcripts of stenographic notes. If, after the consideration of the cases as
appealed cases, there appears to have been a miscarriage of justice or a need for
further evidence, the case can always be remanded for further proceedings as
instructed. Otherwise, the judgment will have to be affirmed or reversed on the
basis of all the present records. (Rollo, p. 73)
For purposes of this decision, we emphasize that in the morning of May 30, 1985, the date of
the first day of the trial proper, or after five (5) postponements, the accused-appellants came
to court without their counsel of record, Atty. Eliseo Cruz. Atty. Cruz allegedly sent a telegram
through one Mrs. Delfina Cruz indicating that he met a vehicular accident and requesting a
resetting of the hearing date. The several instances in which the Court received similar
telegrams including one where he claimed a "very sick heart ailment" led the trial court to
doubt and disregard the last request of the defense. The court had earlier categorically stated
that it wouldentertain no further requests for postponement.
The court, in deciding to push through with the trial at 2:00 in the afternoon of May 30, 1988
and in appointing two (2) counsels de oficio for the accused-appellants did not only consider
the right of the accused to speedy trial which should not be abused by the defense by willful
delays, but more so, the rights of public justice. (Mercado v. Santos, 66 Phil. 215 [1938]).
Despite their new counsels who appeared to be doing their best, the accused-appellants
insisted on absenting themselves stating that they cannot and would not appear without Atty.
Cruz and allegedly for fear that they would be harassed by members of the New People's
Army. At this point, the Court informed them of (1) the importance of the appointment of
competent counsels de oficio considering the gravity of the offense and the difficulty of the
questions that may arise during the trial; and (2) the fact that there is no legal obstacle to
proceeding with the reception of prosecution evidence in their absence.
Absence at the trial did not deprive the accused-appellants of cross-examination except the
right to personally confront the prosecution witnesses face to face. Notwithstanding their
absence, they were represented by the counsels de oficio who took turns in cross-examining
each of the prosecution witnesses.
Accused-appellants also maintain that they did not actually refuse to present evidence on
their behalf. They argued that the counsels de oficio misapprehended a telegram of Atty. Cruz
which stated that he (Atty. Cruz) cannot attend the June 20 and 21, 1985 trial because he had a
prior engagement in another court in Ilocos Sur on those dates. They also contend that their
failure to appear and present evidence was "simply because of their misplaced trust and
obedience to the instructions of their counsel, Atty. Eliseo Cruz, whose negligence and lack of
vigilance in the handling of the cases, despite the seriousness of the crimes charged, had
caused injustice to the accused-appellants." They ask this Court to take their case as an
exception to the rule that a client shall suffer the consequences of negligence or
incompetence of his counsel.
The actual desire of the accused-appellants to testify and present other evidence is not
manifest from a thorough review of the records of the case. If it were true that they wanted to
present evidence, they should have taken advantage of the opportunity to be present, to be
heard and to testify in open court with the assistance of their appointed lawyers. As a matter
of fact, they were able to convince the lower court to grant them a chance to have a new trial.
However, they still failed to make use of their last opportunity. They cannot now claim that
they were denied their right to be present and to present evidence. This Court upholds the
lower court's position that the accused-appellants were given more than generous time and

opportunity to exercise their constitutional rights which should not be overemphasized at the
expense of public policy.
The circumstances of the case do not preclude the application of the rule that a client is
bound by the acts of his counsel who represents him. Nevertheless, at the time when the
lower court appointed the de oficio counsels, the court already had ample notice of the futility
of waiting for Atty. Cruz to come and appear for the defense. From the time the accusedappellants were represented by Atty. Montenegro and Atty. Cuartero, their decision not to
attend the trial nor to present evidence is clearly a product of their own free will.
WHEREFORE, the appealed judgments in Criminal Cases Nos. 1187 and 1194 are hereby,
respectively, affirmed and modified as to the crime proven. The accused-appellants PEDRO
RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE and
HERMIE PAHIT are hereby sentenced:
(1) To serve the penalty of reclusion perpetua and to pay the increased indemnity of FIFTY
THOUSAND PESOS (P50,000.00) in Criminal Case No. 1187 solidarily; and
(2) To serve the penalty of arresto menor in Criminal Case No. 1194.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. L-39303-39305

March 17, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffs-appellee,

vs.
FELIPE KALALO, ET AL., defendants.
FELIPE KALALO, MARCELO KALALO, JUAN KALALO, and GREGORIO RAMOS, appellants.
Meynardo M. Farol and Feliciano Gomez for appellants.
Acting Solicitor-General Pea for appellee.
DIAZ, J.:
On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo, Juan Kalalo, and
Gregorio Ramos, were tried in the Court of First Instance of Batangas jointly with Alejandro Garcia,
Fausta Abrenica and Alipia Abrenica in criminal cases Nos. 6858, 6859 and 6860, the first two for
murder, and the last for frustrated murder. Upon agreement of the parties said three cases were tried
together and after the presentation of their respective evidence, the said court acquitted Alejandro
Garcia, Fausta Abrenica and Alipia Abrenica, and sentenced the appellants as follows:
In case No. 6858, for the alleged murder of Marcelino Panaligan, to seventeen years, four months
and one day ofreclusion temporal, with the corresponding accessory penalties, and to indemnify the
heirs of the said deceased Marcelino Panaligan in the sum of P1,000, with the costs.
In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen years, four months and
one day ofreclusion temporal, with the corresponding accessory penalties, and to indemnify the heirs
of the aforesaid victim, the deceased Arcadio Holgado, in the sum of P1,000, with the costs.
In the third case, that is, No. 6860, wherein the court a quo held that the crime committed was simply
that of discharge of firearm, not frustrated murder, the appellant Marcelo Kalalo was sentenced to one
year, eight months and twenty-one days of prision correccional and to pay the proportionate part of
the costs of the proceedings. Felipe Kalalo and Juan Kalalo, as well as their co-accused Fausta and
Alipia Abrenica, Gregorio Ramos and Alejandro Garcia, were acquitted of the charges therein.
The accused in the aforesaid three cases appealed from their respective sentences assigning six
alleged errors as committed by the trial court, all of which may be discussed jointly in view of the fact
that they raise only one question, to wit: whether or not said sentences are in accordance with law.
A careful study and examination of the evidence presented disclose the following facts: Prior to
October 1, 1932, the date of the commission of the three crimes alleged in the three informations
which gave rise to the aforesaid three cases Nos. 6858, 6859 and 6860, the appellant Marcelo Kalalo
or Calalo and Isabela Holgado or Olgado, the latter being the sister of the deceased Arcadio Holgado
and a cousin of the other deceased Marcelino Panaligan, had a litigation over a parcel of land
situated in the barrio of Calumpang of the municipality of San Luis, Province of Batangas. On

September 28, 1931, and again on December 8th of the same year, Marcelo Kalalo filed a complaint
against the said woman in the Court of First Instance of Batangas. By virtue of a motion filed by his
opponent Isabela Holgado, his first complaint was dismissed on December 7, 1931, and his second
complaint was likewise dismissed on February 5, 1932. Marcelo Kalalo cultivated the land in question
during the agricultural years 1931 and 1932, but when harvest time came Isabela Holgado reaped all
that had been planted thereon.
On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one of the deceased, decided
to order the aforesaid land plowed, and employed several laborers for that purpose. These men,
together with Arcadio Holgado, went to the said land early that day, but Marcelo Kalalo, who had been
informed thereof, proceeded to the place accompanied by his brothers Felipe and Juan Kalalo, his
brother-in-law Gregorio Ramos and by Alejandro Garcia, who were later followed by Fausta Abrenica
and Alipia Abrenica, mother and aunt, respectively, of the first three.
The first five were all armed with bolos. Upon their arrival at the said land, they ordered those who
were plowing it by request of Isabela and Arcadio Holgado, to stop, which they did in view of the
threatening attitude of those who gave them said order.1vvphi1.ne+
Shortly after nine o'clock on the morning of the same day, Isabela Holgado, Maria Gutierrez and
Hilarion Holgado arrived at the place with food for the laborers. Before the men resumed their work,
they were given their food and not long after they had finished eating, Marcelino Panaligan, cousin of
said Isabela and Arcadio, likewise arrived. Having been informed of the cause of the suspension of
the work, Marcelino Panaligan ordered said Arcadio and the other laborers to again hitch their
respective carabaos to continue the work already began. At this juncture, the appellant Marcelo
Kalalo approached Arcadio, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in
turn, approached Marcelino Panaligan. At a remark from Fausta Abrenica, mother of the Kalalos,
about as follows, "what is detaining you?" they all simultaneously struck with their bolos, the appellant
Marcelo Kalalo slashing Arcadio Holgado, while the appellants Felipe Kalalo, Juan Kalalo and
Gregorio Ramos slashed Marcelino Panaligan, inflicting upon them the wounds enumerated and
described in the medical certificates Exhibits I and H. Arcadio Holgado and Marcelino Panaligan died
instantly from the wounds received by them in the presence of Isabela Holgado and Maria Gutierrez,
not to mention the accused. The plowmen hired by Arcadio and Isabela all ran away.
Arcadio Holgado's body bore the following six wounds, to wit:
1. A cut wound on the ulnar side of right arm near the wrist, cutting the ulnar bone completely
and, the radius partially.
2. A cut wound on the anterior upper portion of the left arm measuring about 7 cm. long and 5
cm. wide extending to the bone and cutting the deltoid muscle across.
3. A penetrating wound on the left chest just below the clavicle going thru the first intercostal
space measuring about 8 cm. long and 2 cm wide.
4. A wound on the left side of the back about 20 cm. long following the 10th intercostal space
and injuring the lung, diaphragm, stomach and large intestine.
5. A small superficial cut wound about 2 cm. long and cm. wide situated on the inner side of
the right scapula.
6. A superficial wound barely cutting the skin, about 4 cm. long in the lumbar region just to the
right of the spinal column. (Exhibit I.)
Marcelino Panaligan's body, in turn, bore the following fourteen wounds, to wit:
1. A penetrating cut wound in the epigastric region of the abdomen measuring about 7 cm. long
and 3 cm. wide cutting the omentum and injuring the lower portion of the stomach and a
portion of the transverse colon, but no actual perforation of either one of the two organs.

2. A cut wound on the head just above the forehead about 6 cm. long and 4 cm. wide lifting a
portion of scalp as a flap.
3. A cut wound on the left side of the head measuring about 7 cm. long and 2 cm. wide.
4. A cut wound about 12 cm. long across the face just below the eyes extending from one
cheek bone to the other, perforating the left antrum and cutting the nasal bone.
5. A cut wound on the anterior portion of the left forearm extending to the bone with a flap of
skin and muscle which measures about 12 cm long and 6 cm. wide.
6. A cut wound across the dorsal side of the right hand about 5 cm. long and 2 cm. wide cutting
the bones of the hand.
7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm. deep situated in the left
axilla.
8. A cut wound about 6 cm. long and 2 cm. wide situated over the left scapula.
9. A cut wound on the right shoulder about 6 cm. long passing near the inner angle of the
scapula cutting the muscles of the shoulder.
10. A cut wound about 7 cm. long and 3 cm. wide situated near and almost parallel to the inner
border of the right scapula.
11. A wound on the back of the head, oval in shape, about 10 cm. long and 5 cm. wide from
which a flap of scalp was removed.
12. A wound across the back and left side of the neck about 12 cm. long and 7 cm. deep
cutting the vertebral column together with the great arteries and veins on the left side of the
neck.
13. A wound about 15 cm. long and 4 cm. wide on the left side of the back.
14. A small wound on the left thumb from which a portion of the bone and other tissues were
removed. (Exhibit H.)
The above detailed description of the wounds just enumerated discloses and there is nothing of
record to contradict it all of them were caused by a sharp instrument or instruments.
After Arcadio Holgado and Marcelino Panaligan had fallen to the ground dead, the appellant Marcelo
Kalalo took from its holster on the belt of Panaligans' body, the revolver which the deceased carried,
and fired four shots at Hilarion Holgado who was then fleeing from the scene inorder to save his own
life.
The appellants attempted to prove that the fight, which resulted in the death of the two deceased, was
provoked by Marcelino Panaligan who fired a shot at Marcelo Kalalo upon seeing the latter's
determination to prevent Arcadio Holgado and his men from plowing the land in question. No such
firing, however, can be taken into consideration, in the first place, because of the existence of
competent evidence such as the testimony of Maria Gutierrez, who is a disinterested witness, which
corroborates that of Isabela Holgado in all its details, showing that the said deceased was already
lying prostrate and lifeless on the ground when the appellant Marcelo Kalalo approached him to take
his revolver for the purpose of using it, as he in fact did, against Hilarion Holgado; in the second
place, because the assault and aggression of the said appellant were not directed against said
Marcelino Panaligan but exclusively against Arcadio Holgado, the evidence of record on this point
being overwhelming, and if his claim were true, he naturally should have directed his attack at the
person who openly made an attempt against his life; in the third place, because the evidence shows
without question that Panaligan was an expert shot with a revolver, and among the eight wounds that

the appellant Marcelo Kalalo received (Exhibit 3), not one appears to have been caused by bullet,
and similarly, none of the other appellants received any wound that might, in any way, suggest the
possibility of having been caused by bullet; and finally, because the fact that he and his co-appellants,
together with those who had been charged jointly with them, had gone to the place of the crime
armed with bolos, determined at any cost to prevent the Holgados from plowing the land in dispute,
cannot but disclose not only their determination to resort to violence or something worse, but that they
did not need any provocation in order to carry out their intent.
They likewise attempted to prove that the appellant Marcelo Kalalo alone fought against the
deceased Marcelino Panaligan and Arcadio Holgado and inflicted upon them the wounds which
resulted in their death, said appellant testifying that he was compelled to do so in defense of his own
life because both of the deceased attacked him first, the former with a revolver, firing three shots at
him, and the latter with a bolo. For the same reasons hereinbefore stated, such defense of the
appellants cannot be given credit. One man alone could not have inflicted on the two deceased their
multiple wounds, particularly when it is borne in mind that one of them was better armed, because he
carried a revolver, and that he was furthermore an expert shot and scarcely two arm-lengths from
Kalalo, according to the latter's own testimony. The two witnesses for the defense, who witnessed the
crime very closely, refuted such allegation saying that Marcelo Kalalo alone fought the deceased
Arcadio Holgado and that the other three appellants went after the other deceased. It is true that
Arcadio Holgado also used his bolo to defend himself from Marcelo Kalalo's aggression but it is no
less true that five of the principal wounds of the other deceased Marcelino Panaligan were inflicted on
him from behind, inasmuch as according to Exhibit H they were all found at the back of the head, on
the neck and on his back. Neither is it less true that all the wounds of the appellant Marcelo Kalalo
were inflicted on him from the front, which fact shows that it was not he alone who inflicted the
wounds on the two deceased because had he been alone Panaligan would not have exposed his
back to be thus attacked from behind, inasmuch as he was armed with a revolver, which
circumstance undoubtedly allowed him to keep at a distance from Kalalo; and in connection with the
testimony of Isabela Holgado and Maria Gutierrez, said circumstance shows furthermore that the
three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos attacked said Panaligan with their
respective bolos at the same time that Marcelo Kalalo attacked Arcadio Holgado, in order that all
might act simultaneously in conformity with the common intent of the four and of their coaccused to
eliminate through violence and at any cost, without much risk to them, all those who wanted to plow
the land which was the cause of the dispute between the two parties. And it is not strange that the
three appellants, who inflicted the wounds upon Marcelino Panaligan, should act as they did, because
they knew that the latter carried a revolver in a holster on his belt.
Although it may seem a repetition or redundancy, it should be stated that Marcelo Kalalo's allegation
that he acted in self-defense is absolutely unfounded on the ground that, were it true that the
deceased Marcelino Panaligan succeeded in using his revolver, he would have wounded if not the
said appellant, at least the other appellants.
The trial court has acted correctly in not giving credit to the testimony of the appellants Juan and
Felipe Kalalo and Gregorio Ramos that they proceeded to the scene of the crime completely
unarmed, with the exception that one of them had a brush in his hand and the other a plane, after
Marcelino Panaligan and Arcadio Holgado had already expired, which is incredible and improbable
under the circumstances, knowing, as in fact they then knew, that their brother Marcelo Kalalo had
been attacked by armed men. This court cannot help but agree with the decision of the lower court
where it states:
It is improbable that after having been informed that their brother was engaged in a fight, they
went to the scene of the crime, one merely armed with a plane and the other with a brush. It is
improbable that Felipe Kalalo also went to that place simply to follow Juan Kalalo and Gregorio
Ramos upon seeing them run unarmed in that direction. These improbabilities of the defenses
of the accused, in the face of the positive and clear testimony of the eyewitnesses pointing to
the said accused as the aggressors of the deceased Marcelino Panaligan and Arcadio
Holgado, cannot, of course, prevail against nor detract from the weight of the evidence of the
prosecution, particularly taking into consideration the numerous wounds of each of the
deceased and the positions thereof, which show that the said deceased were attacked by

several persons and that those several persons were the defendants. Furthermore, the
established fact that after the commission of the crime the said defendants had been in hiding
in order to avoid arrest, is corroborative evidence of their guilt.
It certainly is a fact of record that the said three appellants Felipe Kalalo, Juan Kalalo and Gregorio
Ramos were not arrested until after several days, because they had been hiding or, at least,
absenting themselves from their homes.
That the four appellants should all be held liable for the death of the two deceased leaves no room for
doubt. All of them, in going to the land where the killing took place, were actuated by the same motive
which was to get rid of all those who might insist on plowing the land which they believed belonged to
one of them, that is, to Marcelo Kalalo, a fact naturally inferable from the circumstance that all of them
went there fully armed and that they simultaneously acted after they had been instigated by their
mother with the words hereinbefore stated, to wit: "What is detaining you?"
The question now to be decided is whether the appellants are guilty of murder or of simple homicide
in each of cases G.R. No. L-39303 and G.R. No. L-39304. The Attorney-General maintains that they
are guilty of murder in view of the presence of the qualifying circumstance of abuse of superior
strength in the commission of the acts to which the said two cases particularly refer. The trial court
was of the opinion that they are guilty of simple homicide but with the aggravating circumstance of
abuse of superior strength.
It is true that under article 248 of the Revised Penal Code, which defines murder, the circumstance of
"abuse of superior strength", if proven to have been presented, raises homicide to the category of
murder; but this court is of the opinion that said circumstance may not properly be taken into
consideration in the two cases at bar, either as a qualifying or as a generic circumstance, if it is borne
in mind that the deceased were also armed, one of them with a bolo, and the other with a revolver.
The risk was even for the contending parties and their strength was almost balanced because there is
no doubt but that, under circumstances similar to those of the present case, a revolver is as effective
as, if not more than three bolos. For this reason, this court is of the opinion that the acts established
in cases Nos. 6858 and 6859 (G.R. Nos. L-39303 and 39304, respectively), merely constitute two
homicides, with no modifying circumstance to be taken into consideration because none has been
proved.
As to case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo Kalalo fired four successive
shots at Hilarion Holgado while the latter was fleeing from the scene of the crime in order to be out of
reach of the appellants and their companions and save his own life. The fact that the said appellant,
not having contended himself with firing only once, fired said successive shots at Hilarion Holgado,
added to the circumstance that immediately before doing so he and his co-appellants had already
killed Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-law, respectively, of the
former, shows that he was then bent on killing said Hilarion Holgado. He performed everything
necessary on his pat to commit the crime that he determined to commit but he failed by reason of
causes independent of his will, either because of his poor aim or because his intended victim
succeeded in dodging the shots, none of which found its mark. The acts thus committed by the said
appellant Marcelo Kalalo constitute attempted homicide with no modifying circumstance to be taken
into consideration, because none has been established.
Wherefore, the three appealed sentences are hereby modified as follows:
In case No. 6858, or G.R. No. 39303, the court finds that the crime committed by the appellants is
homicide and they hereby sentenced to fourteen years, eight months and one day of reclusion
temporal each, to jointly and severally indemnify the heirs of Marcelino Panaligan in the sum of
P1,000 and to pay the proportionate part of the costs of the proceedings of both instances; and by
virtue of the provisions of Act No. 4103, the minimum of the said penalty of reclusion temporal is
hereby fixed at nine years;
In case No. 6859, or G.R. No. 39304, the court likewise finds that the crime committed by the
appellants is homicide, and they are hereby sentenced to fourteen years, eight months and one day

of reclusion temporaleach, to jointly and severally indemnify the heirs of Arcadio Holgado in the sum
of P1,000 and to pay the proportionate part of the costs of both instances; and in conformity with the
provisions of Act No. 4103, the minimum of the penalty of reclusion temporal herein imposed upon
them is hereby fixed at nine years;
In case No. 6860, or G.R. No. 39305, the court finds that the crime committed by the appellant
Marcelo Kalalo is attempted homicide, and he is hereby sentenced to two years, four months and one
day of prision correccional, it being understood that by virtue of the provisions of said Act No. 4103,
the minimum of this penalty is six months, and he is furthermore sentenced to pay the costs of the
appeal in this case.
In all other respects, the appealed sentences in the said three cases are hereby affirmed without
prejudice to crediting the appellants therein with one-half of the time during which they have
undergone preventive imprisonment, in accordance with article 29 of the Revised Penal Code. So
ordered.

UNITED STATES v. DOMINGUEZ BENITEZ

certiorari to the united states court of appeals for the ninth circuit
No. 03167. Argued April 21, 2004Decided June 14, 2004
After respondent Dominguez Benitez (hereinafter Dominguez) confessed to selling drugs to an
informant, he was indicted on drug possession and conspiracy counts. On the conspiracy count, he
faced a 10-year mandatory minimum sentence. His plea agreement with the Government provided
that Dominguez would plead guilty to conspiracy and the Government would dismiss the possession
charge; that he would receive a safety-valve reduction of two levels, which would allow the court to
authorize a sentence below the otherwise mandatory 10-year minimum; that the agreement did not
bind the sentencing court; and that he could not withdraw his plea if the court rejected the
Governments stipulations or recommendations. He pleaded guilty to the conspiracy charge, but, in
the plea colloquy, the court failed to mention (though the written plea agreement did say) that
Dominguez could not withdraw his plea if the court did not accept the Governments
recommendations. See Fed. Rule Crim. Proc. 11(c)(3)(B). The Probation Office subsequently found
that Dominguez had three prior convictions, making him ineligible for the safety valve, so the District
Court sentenced him to the mandatory minimum. On appeal, Dominguez argued, for the first time,
that the District Courts failure to warn him, as Rule 11(c)(3)(B) instructs, that he could not withdraw
his plea if the court did not accept the Governments recommendations required reversal. The Ninth
Circuit agreed, citing United States v. Olano, 507 U. S. 725, in applying Federal Rule of Criminal
Procedure 52s plain-error standard.

Held: To obtain relief for an unpreserved Rule 11 failing, a defendant must show a reasonable
probability that, but for the error, he would not have pleaded guilty. Pp. 511.
(a) When a defendant is dilatory in raising Rule 11 error, reversal is unwarranted unless the error is
plain. United States v. Vonn, 535 U. S. 55, 63. Except for certain structural errors undermining the
criminal proceedings fairness as a whole, relief for error is tied to prejudicial effect, and the standard
phrased as error that affects substantial rights, as used in Rule 52, means error with a prejudicial
effect on a judicial proceedings outcome. See Kotteakos v. United States, 328 U. S.
750. Kotteakos held that to affect substantial rights, an error must have substantial and injurious
effect or influence in determining the verdict. Id., at 776. Where the burden of demonstrating
prejudice (or materiality) is on the defendant seeking relief, this Court has invoked a similar standard,
which requires a reasonable probability that, but for [the error claimed], the result of the proceeding
would have been different is required. United States v.Bagley, 473 U. S. 667, 682 (opinion of
Blackmun, J.). For defendants such as Dominguez, the burden of establishing entitlement to plainerror relief should not be too easy: First, the standard should enforce the policies underpinning Rule
52(b) generally, to encourage timely objections and reduce wasteful reversals by demanding
strenuous exertion to get relief for unpreserved error, see Vonn, supra, at 73; and second, it should
respect the particular importance of the finality of guilty pleas, which usually rest on a defendants
profession of guilt in open court, and are indispensable in the modern criminal justice systems
operation, see United States v.Timmreck, 441 U. S. 780, 784. Pp. 58.
(b) The Ninth Circuits test in this case fell short. Its first element (whether the error was minor or
technical) requires no examination of the omitted warnings effect on a defendants decision, a failing
repeated to a significant extent by the tests second element (whether the defendant understood the
rights at issue when he pleaded guilty). That courts standard does not allow consideration of
evidence tending to show that a misunderstanding was inconsequential to a defendants decision, or
evidence indicating the relative significance of other facts that may have borne on his choice
regardless of any Rule 11 error. Nor does it consider the overall strength of the Governments case.
When, as here, the record shows both a controlled drug sale to an informant and a confession, one
can fairly ask what a defendant seeking to withdraw his plea thought he could gain by going to trial.
The point is not to second-guess the defendants actual decision, but to enquire whether the omitted
warning would have made the difference required by the standard of reasonable probability; it is hard
to see here how the warning could have affected Dominguezs assessment of his strategic position.
Also, the plea agreement, read to Dominguez in his native Spanish, specifically warned that he could
not withdraw his plea if the court refused to accept the Governments recommendations; this fact,
uncontested by Dominguez, tends to show that the Rule 11 error made no difference to the outcome
here. Pp. 911.
310 F. 3d 1221, reversed and remanded.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-62439 October 23, 1984
GREGORY JAMES POZAR, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, respondent.
Macario C. Ofilada, Jr. for petitioner.
Gil Venerando R. Racho collaborating counsel for petitioner.
The Solicitor General for respondent.

GUERRERO, J.:+.wph!1
In an Information dated July 22, 1980 and filed with the City Court of Angeles City, Branch I, docketed
thereat as Criminal Case No. CAT-326, petitioner, an American citizen and a permanent resident of
the Philippines, was charged with the crime of Corruption of a Public Official, allegedly committed as
follows: t.hqw
That on or about the 17th day of December, 1979, in the City of Angeles, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, being
then an applicant for probation after he was convicted of an offense by a competent
court, did then and there willfully, unlawfully, and feloniously give to the complainant, Mr.

Danilo Ocampo, the City Probation Officer, the sum of P100.00 in a paper bill with Serial
Nos. BC530309, under circumstances that would make the said City Probation Officer
Mr. Danilo Ocampo liable for bribery.
ALL CONTRARY TO LAW.
Upon arraignment, petitioner pleaded not guilty to the said information and, after trial, the City Court
inits decision of May 15, 1981 found the petitioner guilty of the crime of corruption of a public official,
the dispositive portion of which reads: t.hqw
WHEREFORE, the Court finds the accused Gregory Pozar guilty of the offense of
Corruption of a Public Official as charged in the Information, and the Court pursuant to
Article 212, in relation to Article 211 of the Revised Penal Code, hereby sentences the
accused Gregory James Pozar to an imprisonment of three (3) months and one (1) day
of Arresto Mayor, and hereby censures him for his actuation in this matter, with costs
against the accused.
The one hundred peso bill is hereby forfeited in favor of the Republic of the Philippines.
SO ORDERED.1wph1.t
The decision was appealed to the Court of Appeals (now In termediate Appellate Court) and
subsequently, the appellate court affirmed the same in toto. Petitioner's motion for reconsideration
was denied on October 19, 1982 and on December 21, 1982, petitioner filed the instant petition for
review of the decision of the respondent court, relying on the constitutional precept that "In all criminal
prosecutions, the accused shall be presumed innocent until the contrary is proved." (Article IV, Sec.
19), and that the State, having the burden of establishing all the elements of the crime with which the
accused is charged, must prove the guilt of the accused beyond reasonable doubt, has failed to
present and establish the required quantum of proof against the accused petitioner, hence he is
entitled to an acquittal. .
The evidence for the prosecution are stated in the decision of the respondent court, thus: t.
hqw
The prosecution presented as its witnesses Mr. Ricardo Manalo, Mrs. Primitiva
Francisco and Mr. Danilo Ocampo. Upon the other hand, the defense placed on the
witness stand appellant himself and his counsel Atty. Reynaldo Suarez.
Ricardo Manalo, Clerk at the Probation Office of Angeles City, declared that he started
working at the Probation Office since May 2, 1978 and came to know appellant because
the latter had gone to said office in connection with his application for probation; that at
about noontime of December 17, 1979, appellant came to the office looking for
Probation Officer Danilo Ocampo and since the latter was out at the time, appellant
gave him a closed envelope bearing the name of Ocampo for delivery to the latter; that
two days later, he gave the envelope to Ocampo who opened the same in his presence;
that the envelope contained some official papers connected with appellant's application
for probation and attached thereto was a hundred peso bill; that Ocampo then
remarked: 'This s something bad that the opening of the envelope was done on
December 19, 1979; that Ocampo kept the envelope and its contents, including the one
hundred peso bill, but within a week's time gave them to him with instructions to give the
same to appellant but the latter never came to the office and so he returned them to
Ocampo; that although he later saw appellant about two weeks after December 17,
1979, when the latter came to the office to sign some papers, he never mentioned to
appellant the one hundred peso bill (pp. 2-16, t.s.n., September 16, 1980)
Manalo further declared that at the nine the envelope with the one hundred peso bill
was given to him by appellant for delivery to Ocampo, he already had an inkling or
knowledge that the Probation Office will recommend for the grant of appellant's

application for probation because he was the one who makes the final typing of a post,
sentence investigation report and before said final typing Ocampo usually talks to him,
so that he knows whether the recommendation was for a grant or denial of an
application (pp. 16-19, t.s.n., September 16, 1980).
Mrs. Primitiva Francisco, Assistant Probation Officer of the Angeles City Probation
Office, declared that she knows appellant because the latter was one of the applicants
for probation in 1979 and she was the one assigned to investigate appellant's case; that
as Assistant Probation Officer in the Investigation of applications for probation and in the
case of appellant, she requested him to submit certain pertinent documents required by
their office, such as barangay, police and court clearances, residence certificate, etc.;
that she prepared appellant's post-sentence Investigation Report (Exhs. "B" to "B-5")
that she first saw appellant on December 7, 1979, when she interviewed him on his
social and personal history and his version of the offense, among others; that she gave
the list of documents which are to be submitted to the office; that the second time she
saw appellant was on December 21, 1979 but appellant was out at the time and when
she saw that he was in his car that broke down in front of the Pampaguena she tried to
can him but the car left as she was about to reach the place (pp. 2-21, tsn, January 26,
1981).
Mrs. Francisco further declared that at the time she saw appellant on December 21,
1979, the latter was asking person to leave for Baguio City but she told him to talk with
Probation Officer, Mr. Ocampo, anent the matter; that she then prepared a draft of the
Post-Sentence Investigation report and thereafter had a conference with Ocampo who
told him not to delete the bribery incident from the report; that it was first from Manalo
and later from Ocampo that she became aware of the bribery or more accurately
corruption of a public official committed by appellant (pp. 21-25, t.s.n., January 26,
1981).
The third prosecution witness was complaint himself Danilo Ocampo, who declared that
he has been the Probation Officer of an Angeles City, Probation Office since 1977 and
that his employees thereat were Ricardo Manalo, Primitiva Francisco and Ramon de
Leon; that at about 9:00 o'clock in the morning of December 19, 1979, he received a
closed letter envelope from his clerk. Manalo, at the Probation Office at Merlan Building,
Angeles City, Manalo informing him that the same came from appellant; that he opened
the envelope on the presence of Manalo and found that the same contained xerox
copies of the passport (Exh. "D") and visa (Exh. "D-1") of appellant and inserted with
said documents. was a hundred peso bill with Serial No. BC530309 (Exh. "A-l"); that the
envelope given him by Manalo was addressed to him Mr. Danilo Ocampo, Probation
Officer, in handwritten for that he could not, however, produce said envelope the same
having been misplaced that he kept the one hundred peso bill as the same was an
evidence against appellant; that when he met Atty. Reynaldo Suarez, appellant's
counsel at the Angeles City Court on January 14, 1980, he told the latter about the
envelope received from appellant containing the passport, visa and the one hundred
peso bill inserted with said documents and intimated to the lawyer that the client should
not have inserted said one hundred peso bill (pp. 46-57, t.s.n. September 16, 1980).
Ocampo further declared that the Post-Sentence Investigation Report was prepared by
Mrs. Francisco who conducted the investigation; that the first time he saw appellant was
on December 10, 1979, when the latter was seeking permission to go to Baguio City
and being a foreigner, he required him to submit to his office copies of the latter's
passport and visa; that the second time he met appellant was in March, 1980, when the
hearing of appellant's application for probation was conducted at Branch I of the
Angeles City Court; that he never required appellant to give money, so that when he
saw the one hundred peso bill (Exh. "A") in the envelope handed him by Manalo, he
was very much surprised; that he intended to confront appellant but was unable to do so
but was able to inform Atty. Suarez, appellant's lawyer, about the matter when he met
him at the City Court; that at the time the envelope containing the documents and

money was handed to him on, December 19, 1979, the Post-Sentence Investigation
Report was not yet finished and that the same was submitted to the City Court by Mrs.
Francisco on February 5, 1980; that the fact that appellant enclosed a one hundred
peso bill in the envelope was mentioned in said report (pp. 60-73, t.s.n., September 16,
1980).
Ocampo further testified that at the time of the hearing of appellant's application or
petition for probation, the Presiding Judge of Branch I of the City Court held a
conference in the court's chamber with appellant's counsel the trial fiscal and himself,
during which they discussed the bribery incident mentioned in the report; that the
presiding judge of Branch I, after some clarifications regarding the incident in question,
suggested that coplainant should lodge a complaint against appellant and the all should
conduct the corresponding preliminary investigation to determine whether there was
a prima facie case (pp. 75-76, 82-86, t.s.n., September 16, 1980).
Finally, Ocampo declared that he approved the Post-Sentence Investigation Report
recommending the granting of appellant's application for probation, notwithstanding the
bribery or corruption incident mentioned in said report, because appellant's act was not
yet a disqualification under the law, as he was still presumed innocent until he is found
guilty by the court (pp. 90-91, t.s.n. December 8, 1980).
The appealed decision tersely cited the evidence for the defense in the following manner: t.
hqw
The evidence for the defense is that the one hundred peso bill the accused-appellant
placed in the envelope delivered to the Probation Officer was allegedly intended to take
care of the expenses in the xerox copying or reproduction of documents that may be
needed by the Probation Office. (p. 7, CA Decision).
Considering that the findings of fact in the decision of the respondent court which affirmed the
decision of the trial court, do not mention nor indicate the circumstances surrounding the incident and
the filing of the information against the petitioner other than the admitted fact that the one hundred
peso bill was placed in the envelope together with the visa and passport of the petitioner which he
handed on December 17, 1979 to Mr. Ricardo Manalo and which the latter in turn handed on
December 19, 1979 to Probation Officer Danilo Ocampo, in fairness to the petitioner, We quote
hereunder the decision of the trial court which recited the said circumstances that led to the filing of
the Information against the petitioner, to wit: t.hqw
From the evidence presented, the following facts appear to the court to be indubitable;
That the accused was convicted of the crime of less Serious Physical Injuries, and the
crime of Oral Defamation of the City Court of Angeles City, Branch 1, and the said
accused was sentenced to an imprisonment of 15 days of Arresto Menor and to pay a
fine of P50.00 and to pay the complaining witness the amount of P500.00 as moral and
exempt damages. After he was sentenced, he, on November 28, 1979 filed an
Application for Probation. That after filing the application for Probation, the accused,
together with his lawyer Atty. Reynaldo Suarez, went to the Probation Office purposely
to inquire for the requirements need for his client's petition for probation. Unfortunately,
Atty. Suarez and his client did not reach the Probation Officer Mr. Danilo Ocampo. It was
Mr. Manalo, a clerk of the Probation Office, whom they reached, and they were re.
requested to come back to the office regarding their inquiry inasmuch as the Probation
Officer was not in the office. Later, Atty. Suarez called through the telephone the
Probation Office, and, on that occasion he was able to talk with the Probation Inspector,
Mrs. Primitiva Francisco. He was inquiring from Mrs. Francisco the necessary
documents regarding the application for probation of his client and Mrs. Francisco
suggested that he would come over the office in order to give him all the necessary
information. The lawyer just instructed Mrs. Francisco to give a list of the requirements
to Mr. Pozar, the accused, who was then in the, Office of the Probation Officer, and
accordingly, Mrs. Francisco handed to Mr. Pozar a list of the documents needed in his

probation (see Exhibit E for the prosecution, and Exhibit 3 for the defense). It also
appears that all the re. requirements listed in the list given by Mrs, Francisco were given
to Mrs. Francisco, and at times to Mr. Manalo. The person who conducted the
investigation was actually Mrs. Francisco. On December 10, 1979, Pozar had an
occasion to see the Probation Officer, Mr. Danilo Ocampo, and in that meeting, aside
from the fact that he was asking permission from the Probation Officer to go to Baguio,
the Probation Officer required him to furnish the Probation Office the xerox copy of his
visa, and his I.D. picture, inasmuch as it was explained to him these were needed, he
being a foreigner. On December 17, 1979 Mr. Pozar went to the Probation Office
looking for the Probation Officer, and when the Probation Officer was not there, he
handed to Mr. Manalo an envelope address to the Probation Of officer and asked and
requested Mr. Manalo to give the same to Mr. Ocampo. It was on December 19,1979
when Mr. Manalo handed the envelope given by Mr. Pozar to Mr. Danilo Ocampo, and
when Danilo Ocampo opened it in the presence of Mr. Manalo, he found enclose in the
envelope a xerox copy of the applicant's passport, xerox copy of his visa, and attached
also with the same document was a one hundred peso bill It would seem that Mr.
Ocampo asked Mr. Manalo to keep the one hundred peso bill and return it to Mr. Pozar,
but when Mr. Pozar did not arrive to the office, Mr. Manalo gave it back to Mr. Ocampo
Mr. Danilo Ocampo kept the one hundred peso bill but made it a point that this incident
regarding the receiving of the one hundred peso being be included in the post-sentence
investigation report which was being prepared by Mrs. Francisco. At that time when the
one hundred peso bill was given, the post-sentence investigation report was not yet
finished. The record shows that the same was submitted to the court only on February
8, 1980. At the hearing of the application for probation in March 1980, when the
Presiding Judge of City Court of Angeles City, Branch 1, noted and saw from the report
the alleged incident of the accused's giving the one hundred peso bill he called for a
conference and in that conference, he suggested that the manner should be
investigated by the Office of the City F'iscal Acting upon such suggestion Danilo
Ocampo formally filed an Information Sheet against the accused Gregory Pozar (Exhibit
2). It is also a fact admitted by the defense that after the one hundred peso bill was
handed and the Probation Officer was not able to return the same, he informed Atty.
Suarez at the sala of City Court Branch II sometime on January 14, 1980. (pages 8-9)
As stated earlier, petitioner was found guilty of the offense of Corruption of Public Official as defined
and penalized in the Revised Penn Code as follows: t.hqw
Art. 212. Corruption of Public Officials. The same penalties imposed upon the officer
corrupted, except those of disqualification and suspension, shall be imposed upon any
person who shall have made the offers or promises or given the gifts or presents as
described in the preceding articles.
The preceding Articles of the Revised Penal Code are Articles 210 and 211 which define and penalize
the offenses of direct bribery and indirect bribery, and they provide as follows: t.hqw
Art. 210. Direct Bribery. Any public officer who will agree to perform an act
constituting a crime, in connection with the performance of his official duties, in
consideration of any offer, promise, gift or present received by such officer, personally or
through the mediation of another, shag suffer the penalty of prision correccional in its
minimum and medium periods and a fine of not less than the value of the gift and not
more than three times such value, in addition to the penalty corresponding to the crime
agreed upon, ff the same shall have been committed.
If the gift was accepted by the officer in consideration of the execution of an act which
does not constitute a crime, and the officer executed said act, he shall suffer the same
penalty provided in the preceding paragraph, and if said shall not have been
accomplished, the officer shall suffer the penalties of arresto mayor in its maximum
period and a fine of not less than the value of the gift and not more than twice such
value,

If the object for which the gift was received or promised was to make the public officer
refrain from doing something which it was his official duty to do, he shall suffer the
penalties of arresto mayor in its medium and maximum periods and a fine not less than
the value of the gift and not more than three times such value.
In addition to the penalties provided in the preceding paragraphs, the culprit shall suffer
the penalty of special temporary disqualification.
The provisions contained in the preceding paragraphs shall be made applicable to
assessors, arbitrators, appraisal and claim commissioners, experts, or any other
persons performing public duties.
Art. 211. Indirect Bribery. The penalties of arresto mayor, suspension in its minimum
and medium periods, and public censure shall be imposed upon any public officer who
shall accept gifts offered to him by reason of his office.
It is well to note and distinguish direct bribery from indirect bribery. In both crimes, the public officer
receives gift. While in direct bribery, there is an agreement between the public officer and the giver of
the gift or present, in indirect bribery, usually no such agreement exist. In direct bribery, the offender
agrees to perform or performs an act or refrains from doing something, because of the gift or promise
in indirect bribery, it is not necessary that the officer should do any particular act or even promise to
do an act, as it is enough that he accepts gifts offered to him by reason of his office. (The Revised
Penal Code by Luis P. Reyes, 1975 Ed., p. 332).
In the case at bar, We find that the Information against the petitioner charged that the accused "did
then and there willfully, unlawfully, and feloniously give to the complainant, Mr. Danilo Ocampo, the
City Probation Officer, the sum of one hundred (P100.00) pesos in a paper bill with serial No.
BC530309, under circumstances that would make the said City Probation Officer, Mr. Danilo Ocampo,
liable for bribery.
The trial court found the accused guilty of the offense of Corruption of a Public Official as charged in
the Information and pursuant to Article 212, in relation to Article 211 of the Revised Penal Code,
sentenced the accused to an imprisonment of three (3) months and one (1) day of arresto mayor and
public censure. This is erroneous. The trial court erred in finding the accused guilty of the crime of
Corruption of Public Official as consummated offense (which is affirmed by the respondent appellant
court) for it is clear from the evidence of the prosecution as recited in both decisions of the trial and
appellate courts, that the complainant Probation Officer did not accept the one hundred peso bill
Hence, the crime would be attempted corruption of a public official. (See The Revised Penal Code by
Justice Ramon Aquino, 1976 Ed., Vol. II, p. 1168, citing the cases of Uy Matiao, 1 Phil. 487; Camacan
7 Phil. 329; Tan Gee, 7 Phil. 738; SyGuikao 18 Phil. 482; Te Tong, 26 Phil. 453; Ng Pek 81 Phil. 562;
Ching, CA-G.R. No. 439-R, July 31, 1947). Attempted corruption of a public official is punished
withdestierro and is cognizable by inferior courts (See Revised Penal Code by justice Aquino, Vol. II,
1976 Ed., citing the cases of Uy Chin Hua v. Dinglasan, 86 Phil. 617; Santos y Bautista, 87 PhiL 687;
Dalao v. Geronimo, 92 Phil. 1942; Ng Pek 81 Phil. 562).
Be that as it may, the crucial point is whether the prosecution has established beyond reasonable
doubt that the one hundred peso bill was given to bribe and corrupt the City Probation Officer or that it
will be used to defray expenses in xeroxing or copying of whatever documents needed by the
Probation Office in connection with petitioner's application for probation then pending in said office.
The evidence on record disclose that the petitioner was required by the Assistant Probation Officer,
Primitive Francisco, to submit in connection with his probation application the Court Information
( complaint) Court decision, Custody Status (recognizance or bail bond), clearances from the Police,
the Court, Barangay Certificate, I.D. pictures (3 copies), residence certificate, and told to report once
a week on Mondays. (Exhibit "E"). This was on December 7, 1979.
Aside from these documents, the Probation Officer required of the petitioner on December 10, 1979
when the latter was asking permission to go to Baguio to submit to the office a copy of his visa and

passport. Mrs. Francisco to testified that the petitioner was asking permission from her to leave for
Baguio. And according to the petitioner, "during all the time he was applying for probation, he made
more or less 12 visits in the office as he was directed to report every Monday at 10:00 o'clock in the
morning. He reported for 6 to 7 consecutive weeks and there were times that he went there
unscheduled for conference and clarification of the various re. requirements he needed. During all the
time he went there, he met Manalo, Mrs. Francisco and Mr. Ocampo himself. Mrs. Francisco and Mr.
Ocampo interviewed him He submitted all the requirements to the Probation Officer; at times, he
submitted them directly to Mrs. Francisco, and at other times to Mr. Manalo, and also to Mr. Ocampo.
Other than those listed in the list given by Mrs. Francisco, he was required to submit xerox copy of his
passport, his visa and his pictures. He explained that he gave the requirements to the person who
was interviewing him, primarily Mrs. Francisco, of the documents needed. Later, he submitted to the
office xerox copy of the original He likewise submitted his two passports, and later xerox copy of his
passports. When Mrs. Francisco was asking for the original, which documents are in the possession
of his lawyer at his office, he had to return to get the originals." (Decision of Trial Court, p. 5).
Petitioner's travail is, therefore, quite evident.
From the foregoing, We can fairly deduce that the procedure for processing petitioner's application for
probation in the Probation Office at Angeles City was not precise, explicit and clear cut And since the
accused petitioner is a foreigner and quite unfamiliar with probation rules and procedures, there is
reason to conclude that petitioner was befuddled, if not confused so that his act of providing and
advancing the expenses for whatever documentation was needed further to complete and thus
hasten his probation application, was understandably innocent and not criminal.
In fine, the facts and circumstances on record amply justify and support the claim of the defense as
against the conjectures, speculation and supposition recited in the decision of the trial court and
quoted with approval in the appealed decision under review. The Government's own evidence as
indicated in the Post-Sentence Investigation Report that the giving of the one hundred pesos
( P100.00) was done in good faith, is vital for it belies petitioner's criminal intent. There being no
criminal intent to corrupt the Probation Officer, the accused petitioner is entitled to acquittal of the
crime charged. We hold and rule that the prosecution has not proved the guilt of the accused beyond
reasonable doubt. There is not that moral certainty required to convict him. Even the complainant
himself, the Probation Officer, filed the complaint only on the suggestion of the presiding judge of the
Angeles City Court during the hearing on petitioner's application for probation, the complaint having
been filed in the City Fiscal's Office on June 10, 1980 after a lapse and delay of six (6) months.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment appealed from is hereby
REVERSED. The accused petitioner is hereby ACQUITTED. No costs.
SO ORDERED.1wph1.t
Concepcion, Jr., Escolin and Cuevas, JJ., concur.
Aquino, J., concurs in the result.
Abad Santos, J., took no part.
MAKASIAR, J., dissenting:
1. As stated by the Solicitor General the pretension of the petitioner that he was confused with
respect to the requirements and/or processing of his application for probation pending before the
complaining witness Probation Officer Danilo Ocampo of Angeles City, is incredible. As early as
December 7, 1979, about ten (10) days before December 17, 1979 (the delivery of the P100 peso bill
inside a closed letter envelope petitioner was already interviewed by Mrs. Primitiva Francisco,
Assistant Probation Officer of the Probation Office of Angeles City, who gave him the list of
documents to be submitted to the office. Hence, petitioner already knew then what papers were
required of hint

2. His claim that the P100 peso bill contained in the aforesaid closed letter envelope was for xerox
copies of other documents that may be required of him by the Probation Office, is belied by the
aforesaid fact that as early as December 7, 1979, Assistant Probation Officer Francisco already gave
him the list of documents that he should submit to the Probation Office, and that on December 10,
1979, Probation Officer Ocampo also required him to submit xerox copies only of his passport and
visa as he was a foreigner, in connection with his request for permission to go to Baguio City.
3. If, as he alleged, the P100 bill was intended for xerox copies of other documents that may be
required of him, he should have, as stated by the Solicitor General in his comment and memorandum,
given the same to the clerk Ricardo Manalo of the Probation Office, with instructions that the same
should cover whatever xerox copies of other documents may be needed. Or he should have attached
or clipped the P100 bill to a note addressed to Probation Officer Ocampo that the said money is to
cover expenses for xerox copies of other documents that may be required of him.
4. Petitioner could have just given the P100 bill to his lawyer, Atty. Reynaldo Suarez, with instructions
that the same should be paid for whatever xerox copies of other documents that may be required of
him in connection with his application for probation.
5. Petitioner saw Assistant Probation Officer Francisco on December 21, 1979; but on said date
petitioner did not bother to ask either Assistant Probation Officer Francisco on December 21, 1979;
but on said date petitioner did not bother to ask either Assistant Probation Officer Francisco or the
Probation Clerk Ricardo Manalo, whether the P100 bill was spent for xerox copies of other
documents. He went there that day, December 21, 1979, precisely to reiterate his request for
permission to leave for Baguio City and Assistant Probation Officer Francisco advised him to talk to
Probation Officer Ocampo whom he did not even try to see that day, December 21, 1979.
6. Petitioner could not presume that his application for probation would be favorably acted upon
because he was still then being subjected to an investigation by Assistant Probation petition Officer
Francisco who submitted her post-sentence report to the City Court only on February 5, 1980. Said
report included the statement about the bribe money. Probation Officer Ocampo had to recommend in
March, 1980 approval of petitioner's application for probation; because at that time he had not yet
filed the complaint with the City Fiscal's Office for corruption of public officer against petitioner who,
as stressed by Probation Officer Ocampo, was presumed innocent until adjudged guilty of such
corruption,
Hence, the conviction of petitioner should be affirmed but only for attempted corruption of a public
officer, because Probation officer Ocampo did not accept the money; otherwise, said probation officer
would be equally guilty as the corruptor.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-6025

May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AMADO V. HERNANDEZ, ET AL., accused,
AMADO V. HERNANDEZ, ET AL., defendants-appellants.
----------------------------G.R. No. L-6026

May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BAYANI ESPIRITU, ET AL., accused,
BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.
LABRADOR, J.:
This is the appeal prosecuted by the defendants from the judgment rendered by the Court of First
Instance of Manila, Hon. Agustin P. Montesa, presiding, in its Criminal Case No. 15841, People vs.
Amado V. Hernandez, et al., and Criminal Case No. 15479, People vs. Bayani Espiritu, et al. In
Criminal Case No. 15841 (G.R. No. L-6026) the charge is for Rebellion with Multiple Murder, Arsons
and Robberies; the appellants are Amado V. Hernandez, Juan J. Cruz, Genaro de la Cruz, Amado
Racanday, Fermin Rodillas and Julian Lumanog; Aquilino Bunsol, Adriano Samson and Andres Baisa,
Jr. were among those sentenced in the judgment appealed from, but they have withdrawn their
appeal. In Criminal Case No. 15479 (G.R. No. L-6026) the charge is for rebellion with murders,
arsons and kidnappings; the accused are Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.; they
all appealed but Andres Balsa, Jr. withdrew his appeal.
The information filed against defendants Hernandez and others in Criminal Case No. 15481 alleged:
I. That on or about March 15, 1945, and for some time before the said date and continuously
thereafter, until the present time, in the City of Manila, Philippines, and the place which they
had chosen as the nerve center of all their rebellious activities in the different parts of the
Philippines, the said accused, conspiring, confederating and cooperating with each other, as
well as with the thirty-one (31) defendants charged in Criminal Cases Nos. 19071, 14082,
14270, 14315 and 14344 of the Court of First Instance of Manila (decided May 11, 1951) and
also with others whose whereabouts and identities are still unknown, the said accused and
their other co-conspirators, being then high ranking officers and/or members of, or otherwise
affiliated with the Communist Party of the Philippines (P.K.P.), which is now actively engaged in
an armed rebellion against the Government of the Philippines thru act theretofore committed
and planned to be further committed in Manila and other places in the Philippines, and of
which party the "Hukbong Mapagpalaya Ng Bayan"(H.M.B.) otherwise or formerly known as
the "Hukbalahaps" (Huks), unlawfully and did then and there willfully, unlawfully and feloniously
help, support, promote, maintain, cause, direct and/or command the "Hukbong Mapagpalaya
Ng Bayan" (H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and take arms against the
Republic of the Philippines, or otherwise participate in such armed public uprising, for the
purpose of removing the territory of the Philippines from the allegiance to the government and
laws thereof as in fact the said "Hukbong Mapagpalaya Ng Bayan" or "Hukbalahaps" have
risen publicly and taken arms to attain the said purpose by then and there making armed raids,
sorties and ambushes, attacks against police, constabulary and army detachments as well as
innocent civilians, and as a necessary means to commit the crime of rebellion, in connection
therewith and in furtherance thereof, have then and there committed acts of murder, pillage,
looting, plunder, arson, and planned destruction of private and public property to create and
spread chaos, disorder, terror, and fear so as to facilitate the accomplishment of the aforesaid
purpose, as. follows, to wit: (Enumeration of thirteen attacks on government forces or civilians

by Huks on May 6, 1946, August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June,
1946, April 28, 1949, August 25, 1950, August 26, 1950, August 25, 1950, September 12,
1950, March 28, 1950 and March 29, 1950.)
II. That during the period of time and under the same circumstances herein-above indicated
the said accused in the above-entitled case, conspiring among themselves and with several
others as aforesaid, willfully, unlawfully and feloniously organized, established, led and/or
maintained the Congress of Labor Organizations (CLO), formerly known as the Committee on
Labor Organizations (CLO), with central offices in Manila and chapters and affiliated or
associated labor unions and other "mass organizations" in different places in the Philippines,
as an active agency, organ, and instrumentality of the Communist Party of the Philippines
(P.K.P.) and as such agency, organ, and instrumentality, to fully cooperate in, and synchronize
its activities as the CLO thus organized, established, led and/or maintained by the herein
accused and their co-conspirators, has in fact fully cooperated in and synchronized its
activities with the activities of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) and other
organs, agencies, and instrumentalities of the Communist Party of the Philippines (P.K.P.), to
thereby assure, facilitate, and effect the complete and permanent success of the abovementioned armed rebellion against the Government of the Philippines.
The information filed against the defendants in Criminal Case No. 15479, Bayani Espiritu Andres
Baisa, Jr. and Teopista Valerio, alleges:
That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto and
continuously up to the present time, in the City of Manila, the seat of the government of the
Republic of the Philippines, which the herein accused have intended to overthrow, and the
place chosen for that purpose as the nerve center of all their rebellious atrocities in the
different parts of the country, the said accused being then high ranking officials and/or
members of the Communist Party of the Philippines (P.K.P.) and/or of the "Hukbong
Mapagpalaya Ng Bayan" (H.M.B.) otherwise or formerly known as the "Hukbalahaps" (HUKS),
the latter being the armed forces of said Communist Party of the Philippines; having come to
an agreement with the 29 of the 31 accused in Criminal Cases Nos. 14071, 14082, 14270,
14315, 14344 of the Court of First Instance of Manila and decided to commit the crime of
rebellion, and therefore, conspiring and confederating with all of the 29 accused in said
criminal cases, acting in accordance with their conspiracy and in furtherance thereof, together
with many others whose whereabouts and identities are still unknown up to the filing of this
information, and helping one another, did then and there willfully, unlawfully and feloniously
promote maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng Bayan",
(HMB) or the Hukbalahaps (HUKS) to rise publicly and take Arms against the Government or
otherwise participate therein for the purpose of overthrowing the same, as in fact, the said
"Hukbong Mapagpalaya Ng Bayan" or Hukbalahap (HUKS) have risen publicly and taken arms
against the Government, by then and there making armed raids, sorties and ambushes,
attacks against police, constabulary and army detachment, and as a necessary means to
commit the crime of rebellion, in connection therewith and in furtherance thereof, by then and
there committing wanton acts of murder, spoilage, looting, arson, kidnappings, planned
destruction of private and public buildings, to create and spread terrorism in order to facilitate
the accomplishment of the aforesaid purpose, as follows to wit: (Enumeration of thirteen
attacks on Government forces or civilians by Huks on May 6, 1946. August 6, 1946, April 10,
1947, May 9, 1947, August 19, 1947, June 1946, April 28, 1949, August 25, 1950, August 26,
1950, August 25, 1950, September 12, 1950, March 28, 1950 and March 29, 1950).
A joint trial of both cases was held, after which the court rendered the decision subject of the present
appeals.
APPEAL OF AMADO V. HERNANDEZ
After trial the Court of First Instance found, as against appellant Amado V. Hernandez, the following:
(1) that he is a member of the Communist Party of the Philippines and as such had aliases, namely,
Victor or Soliman; (2) that he was furnished copies of "Titis", a Communist publication, as well as

other publications of the Party; (3) that he held the position of President of the Congress of Labor
Organizations; (4) that he had close connections with the Secretariat of the Communist Party and
held continuous communications with its leaders and its members; (5) that he furnished a
mimeographing machine used by the Communist Party, as well as clothes and supplies for the
military operations of the Huks; (6) that he had contacted well-known Communists coming to the
Philippines and had gone abroad to the WFTU conference Brussels, Belgium as a delegate of the
CLO, etc. Evidence was also received by the court that Hernandez made various speeches
encouraging the people to join in the Huk movement in the provinces.
The court also found that there was a close tie-up between the Communist Party and the Congress of
Labor Organizations, of which Hernandez was the President, and that this Congress was organized
by Hernandez in conjunction with other Huks, namely: Alfredo Saulo, Mariano Balgos, Guillermo
Capadocia, etc.
We will now consider the nature and character of both the testimonial as well as the documentary
evidence, independently of each other, to find out if the said evidence supports the findings of the
court.
Testimonial Evidence
Amado V. Hernandez took the oath as member of the Communist Party in the month of October,
1947, at the offices of the Congress of Labor Organizations at 2070 Azcarraga in the presence of
Guillermo Capadocia, Ramon Espiritu, Pedro Castro, Andres Balsa, etc. As a Communist he was
given the pseudonyms of Victor and Soliman, and received copies of the Communist paper "Titis". He
made various speeches on the following dates and occasions:
(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza Miranda, in
which he announced that the people will soon meet their dear comrade in the person of
Comrade Luis Taruc.
(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at which
occasion Balgos told Goufar that the PKM, CLO and the Huks are in one effort that the PKM
are the peasants in the field and the Huks are the armed forces of the Communist Party; and
the CLO falls under the TUD of the Communist Party. 1wph1.t
(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of the World
Federation of Trade Unions and after arrival from abroad a dinner was given to him by the
people of Gagalangin, at which Hernandez delivered a speech and he said that he preferred to
go with the Huks because he felt safer with them than with the authorities of the Government.
(4) In April, 1949, he made a speech before a group of tenants in Malabon attacking the frauds
in the 1947 elections, graft and corruption in the elections and that if improvement cannot be
made by the ballots, they could be made by bullets; and enjoined the people to go to the hills
and join Luis Taruc the head of the dissidents in the Philippines.
(5) On October 2, 1949 he delivered a speech on the occasion of the commemoration of the
World Peace at the CLO headquarters at 330 P. Campa. He attacked the city mayor and
incited the people to go to Balintawak and see Bonifacio there and thereafter join four
comrades under the leadership of Luis Taruc.
(6) On October 16, 1949 he delivered a speech before a convention of the unemployed at 330
P. Campa. He asked the unemployed to approve a resolution urging the Government to give
them jobs. In conclusion he said that if the Government fails to give them jobs the only way out
was to join the revolutionary forces fighting in the hills. He further said that Mao Tse Tung,
leader of the People's Army in China, drove Chiang Kai Shek from his country, and that Luis
Taruc was also being chased by Government forces run by puppets like Quirino, etc.

(7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk Hernandez
expressed regret that two foremost leaders of the CLO, Balgos and Capadocia, had gone to
the field to join the liberation army of the HMB, justifying their going out and becoming heroes
by fighting in the fields against Government forces until the ultimate goal is achieved.
The above evidence was testified to by Florentino Diolata who was the official photographer of the
CLO since August, 1948.
On the tie-up between the Communist Party and the CLO Guillermo Calayag, a Communist and a
Huk from 1942 to 1950, explained:
(1) The ultimate goal of the Communist Party is to overthrow the president government by
force of aims and violence; thru armed revolution and replace it with the so-called dictatorship
of the proletariat the Communist Party carries its program of armed overthrow of the present
government by organizing the HMB and other forms of organization's such as the CLO, PKM,
union organizations, and the professional and intellectual group; the CLO was organized by
the Trade Union Division TUD of the Communist Party.
(2) A good majority of the members of the Executive Committee and the Central Committee of
the CLO were also top ranking officials of the Communist Party; activities undertaken by the
TUD - the vital undertaking of the TUD is to see that the directives coming from the
organizational bureau of the Communist Party can be discussed within the CLO especially the
Executive Committee. And it is a fact that since a good majority of the members of the
Executive Committee are party members, there is no time, there is no single time that those
directives and decisions of the organizational department, thru the TUD are being objected to
by the Executive Committee of the CLO. These directives refer to how the CLO will conduct its
functions. The executive committee is under the chairmanship of accused Amado V.
Hernandez.
(3) The CLO played its role in the overall Communist program of armed overthrow of the
present government and its replacement by the dictatorship of the proletariat by means of
propaganda - by propagating the principles of Communism, by giving monetary aid, clothing,
medicine and other forms of material help to the HMB. This role is manifested in the very
constitution of the CLO itself which expounded the theory of classless society and the
eradication of social classes (par. 5, Sec. 1, Art. 2, page 18 of the CLO Constitution contained
in the Fourth Annual Convention Souvenir Program of the CLO Exh. "V-1579"). Thru
propaganda, the CLO promoted the aims of Communist Party and disseminated Communist
ideas by:
(a) The conspicuous display of the portrait or, pictures of Crisanto Evangelista (Exh. V1662), founder of Communism in the Philippines, in the session hall of the CLO
headquarters at 2070 Azcarraga and then at 330 P. Campa;
(b) The distribution of foreign communist reading materials such as the World
Federation of Trade Union Magazine, International Union of Students magazine, Voice
magazine of the marine cooks of the CLO, World Committee of the Defenders of the
Peace magazine, Free Bulgaria magazine, Soviet Russia Today magazine and World
Federation of Democratic Youth magazine (Exhs. V-911, V-907, V-910, V-899, V-912, V853, W-996 and V-967);
(c) The publication and distribution of some local subversive publications such as the
"Titis", "Bisig", Kidlat", which are Communist Party organs; "The Philippine Labor
Demands Justice" and "Hands Off Korea" authored by accused Amado V. Hernandez;
(d) Principles of Communism were also propagated thru lectures, meetings, and by
means of organization of committees in the educational department as well as
researches in the Worker's Institute of the CLO.

(4) The CLO also helped carry out the program of the Communist Party thru infiltration of party
members and selected leaders of the HMB within the trade unions under the control of the
CLO. The Communist Party thru the CLO assigned Communist Party leaders and organizers
to different factories in order to organize unions. After the organization of the union, it will
affiliate itself with the CLO thru the Communist leaders and the CLO in turn, will register said
union with the Department of Labor; and the orientation and indoctrination of the workers is
continued in the line of class struggle. After this orientation and infiltration of the Communist
Party members and selected leaders of the HMB with the trade unions under the control of the
CLO is already achieved and the group made strong enough to carry out its aims, they will
begin the sporadic strikes and the liquidation of anti-labor elements and anti-Communist
elements and will create a so-called revolutionary crisis. That revolutionary crisis will be done
for the party to give directives to the HMB who are fighting in the countrysides and made them
come to the city gates. The entry of the HMB is being paved by the simultaneous and sporadic
strikes, by ultimate general strikes thru the management of the CLO.
Important Documents Submitted at Trial
1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or was
referred to as "Victor" or "Soliman".
(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling the latter of
his sympathies for other communists, describing his experiences with Communists
abroad, telling Julie to dispose of materials that may be sent by Victor. (Exh. D-20012004)
(b) "Paano Maisasagawa, etc." mentions different groups of labor unions of which
Victor heads one group, consisting of the MRRCO, PTLD, PGWU, EMWU and IRWU
(Exh. C-2001-2008) Cadres assigned to different industries. (Exh. V-40-41)
(c) Handwritten certificate of Honofre Mangila states that he knew Amado Hernandez as
Victor from co-party members Hugo and Ely. (Exh. LL)
(d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to Victor. (Exh.
1103)
(e) Saulo's letter about his escape, asks Victor why his press statement was not
published in the newspapers. (Exh. C-362) Letter was however published by Hernandez
in the Daily Mirror.
(f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to Victor.
(Exh. D-463-64)
(g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at Pampanga
St. to bring to the latter communications from the Communist Party. (Exh. D-1203) That
Soliman was given copies of "Titis". (Exh. D-1209)
(h) SEC directions to Politburo members, Soliman not to be involved with Nacionalista
Rebels. (Exh. F-92-93. SEC)
(i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman has
"tendencies of careerism and tendency to want to deal with leaders of the party"; that he
should be asked to choose to go underground or fight legally. (Exh. F-562)
(j) Explanation given by Hernandez why he did not join Saulo in going underground.
(Exh. V-87) (1) His election as councilor until December, 1951. (Exhs. V-42, W-9) (2) His
election as President of CLO until August of following year. (Exhs. V-42, W-9)
2. Letters and Messages of Hernandez.

(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)
(b) To SOBSI Jakarta that Filipinos are joining other communist countries of the East.
(Exh. V-82)
(c) Press release on Saulo's disappearance published by Amado Hernandez. (Exh. W116-120)
(d) To Hugh and Eddie, July 8, 1949 Extends greetings to National Union of Marine
Cooks and Stewards, states that labor has one common struggle "the liberation of all
the peoples from the chains of tyranny, fascism and imperialism". (Exh. V-259)
(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-89)
(f) Appeal to the Women and Asia. (Exh. V-5-10)
(g) Letter to Julie (Exh. V-2001-2004)
(h) Letter to Chan Lieu - states that leaders during the war are being persecuted, like
Taruc. Tells of reward of P100,000.00 on Taruc's head. (Exh. X-85-88)
(i) Letter to John Gates of the Daily Worker condemns Wall Street maneuvers;
corruption and graft in Quirino administration, etc. (Exh. V-83)
(j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist. (Exh. V-79)
(k) Communication of Hernandez to CLO at MRRCO Praises Balgos and Capadocia
for joining the Huks. (Exhs. V-12-22, V-289)
(l) "Philippine labor Demands Justice" Attacks czars of Wall Street and U.S. Army
and Government. (Exh. V-94) .
(m) Letter to Taruc June 28, 1948.-States solidarity among the CLO Huks and PKM.
Attacks North Atlantic Pact. Praises Mao Tse Tung (contained in Exh. V-94)
(n) "Philippines Is Not A Paradise" States of a delegation to Roxas attacking
unemployment. (Exh. V-90-93)
(o) Article "Progressive Philippines" (Exh. V-287)
(p) Article "Hands Off Korea" (Exhs. V-488-494, 495-501, 509-515, W-25-26)
(q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-38)
(r) Press statement of Hernandez opposes acceptance of decorations from Greece
by Romulo. (Exh. V-72)
3. Other Activities of Hernandez.
(a) Hernandez received clothes from Pres. Lines thru P. Campa, which clothes he sent
to the field. Letters show of sending of supplies to Huks. (Exh. S-383)
(b) Hernandez was asked to furnish portable typewriter, which he did furnish to Huks.
(Exh. C-364)
(c) Hernandez brought Taruc's letter about facts and incidents about Huks to Bulosan
for inclusion in Bulosan's book. (Exh. FF-1)

(d) Had conference with Kumar Goshal a Hindu, about the Huks and their armed forces.
(Photographs, Exhs. X-6 RR-54-55A)
(e) Supervised taking of pictures of sons of Capadocia and Joven. (Photographs, Exhs.
T-1, RR-136-138A)
(f) Had knowledge of the going underground of Capadocia and Balgos and issued press
release about their going underground. (Exh. F-91)
(g) Victor mentioned to continue as contact for Chino. (Exh. C-362)
(h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc. (Exh. D451-451-A)
(i) Associated with fellow ranking Communist leaders.
The Court upon consideration of the evidence submitted, found (1) that the Communist Party was
fully organized as a party and in order to carry out its aims and policies a established a National
Congress, a Central Committee (CC), Politburo PB, Secretariat (SEC), Organization Bureau (OB),
and National Courier or Communication Division (NCD), each body performing functions indicated in
their respective names; (2) that in a meeting held on August 11, 1950 the SEC discussed the creation
of a Military Committee of the Party and a new GHQ, under which on September 29, 1950 the SEC
organized a special warfare division, with a technological division; (3) that on May 5, 1950 a body
known as the National Intelligence Division was created, to gather essential military intelligence and,
in general, all information useful for the conduct of the armed struggle (4) that a National Finance
Committee was also organized as a part of the Politburo and answerable to it; (5) that the country
was divided into 10 Recos, the 10th Reco comprising the Manila and suburbs command; (6) that
since November, 1949 the CPP had declared the existence of a revolutionary situation and since then
the Party had gone underground and the CPP is leading the armed struggle for national liberation,
and called on the people to organize guerrillas and coordinate with the HMB on the decisive struggle
and final overthrow of the imperialist government; (7) that in accordance with such plan the CPP
prepared plans for expansion and development not only of the Party but also of the HMB; the
expansion of the cadres from 3,600 in July 1950 to 56,000 in September 1951, the HMB from 10,800
in July 1950 to 172,000 in September 1951, et seq.
Around the month of January, 1950 it was decided by the CPP to intensify HMB military operations for
political purposes. The Politburo sanctioned the attacks made by the Huks on the anniversary of the
HMB on March 25, 1950. The HMB attacks that were reported to the PB were those made in May,
1946; June, 1946; April 10, 1947; May 9, 1947; August 19, 1947; August 25, 1950; August 26, 1950;
October 15 and 17, 1950; May 6, 1946; August 6, 1946; April 10, 1947; May 9, 1947; August 19,
1947; April 29, 1949; August 25, 1950; August 26, 1950; September 12, 1950; March 26, 1950; March
29, 1950.
The theory of the prosecution, as stated in the lower court's decision, is as follows:
The evidence does not show that the defendants in these cases now before this Court had
taken a direct part in those raids and in the commission of the crimes that had been
committed. It is not, however, the theory of the prosecution that they in fact had direct
participation in the commission of the same but rather that the defendants in these cases have
cooperated, conspired and confederated with the Communist Party in the prosecution and
successful accomplishment of the aims and purposes of the said Party thru the organization
called the CLO (Congress of Labor Organizations).
The Court found that the CLO is independent and separate from the CPP, organized under the same
pattern as the CPP, having its own National Congress, a Central Committee (which acts in the
absence of and in representation of the National Congress), an Executive Committee (which acts
when the National Congress and the Executive Committee are not in session), and seven permanent
Committees, namely, of Organization, Unemployment and Public Relations, Different Strikes and

Pickets, Finance, Auditing, Legislation and Political Action. Members of the Communist Party
dominate the committees of the CLO. The supposed tie-up between CPP and the CLO of which
Hernandez was the President, is described by the court below in finding, thus:
Just how the CLO coordinates its functions with the Communist Party organ under which it operates
was explained by witness Guillermo S. Calayag, one-time ranking member of the Communist Party
and the CLO who typewrites the "Patnubay sa Education" from a handwritten draft of Capadocia,
which is one of the texts used in the Worker's institute of the CLO. According to him, the CLO plays its
role by means of propaganda, giving monetary aid, clothing, medicine and other material forms of
help to the HMB, which constitutes the armed forces of the Communist Party. Propaganda is done by
lectures, meetings, and the organization of committees of the educational department as well as
researches at the CLO Worker's Institute.
Another way of helping the Communist Party of the Philippines is by allowing the Communist
Party leaders to act as organizers in the different factories in forming a union. These Party
Members help workers in the factories to agitate for the eradication of social classes and
ultimately effect the total emancipation of the working classes thru the establishment of the socalled dictatorship of the proletariat. It is the duty of these Communist Party members to
indoctrinate uninitiated workers in the union to become proselytes of the Communist Party
ideology. After the right number is secured and a union is formed under a communist leader,
this union is affiliated with the CLO and this in turn registers the same with the Department of
Labor. The orientation and indoctrination of the masses is continued with the help of the CLO.
The primary objective of the CLO is to create what is called a revolutionary crisis. It seeks to
attain this objective by first making demands from the employers for concessions which
become more and more unreasonable until the employers would find it difficult to grant the
same. Then a strike is declared. But the strikes are only preparation for the ultimate attainment
of the Communist goal of armed overthrow of the government. After the workers in the
factories have already struck in general at the behest of the Communist Party thru the CLO a
critical point is reached when a signal is given for the armed forces of the Communist Party,
the HMB, to intervene and carry the revolution now being conducted outside to within the city.
On the basis of the above findings, the court below found Hernandez guilty as principal of the crime
charged against him and sentenced him to suffer the penalty of reclusion perpetua with the
accessories provided by law, and to pay the proportionate amount of the costs.
Our study of the testimonial and documentary evidence, especially those cited by the Court in its
decision and by the Solicitor General in his brief, discloses that defendant-appellant Amado V.
Hernandez, as a Communist, was an active advocate of the principles of Communism, frequently
exhorting his hearers to follow the footsteps of Taruc and join the uprising of the laboring classes
against capitalism and more specifically against America and the Quirino administration, which he
dubbed as a regime of puppets of American imperialism. But beyond the open advocacy of
Communistic Theory there appears no evidence that he actually participated in the actual conspiracy
to overthrow by force the constituted authority.
Hernandez is the founder and head of the CLO. As such, what was his relation to the rebellion? If, as
testified to by Guillermo S. Calayag, the CLO plays merely the role of propagation by lectures,
meetings and organization of committees of education by Communists; if, as stated, the CLO merely
allowed Communist Party leaders to act as organizers in the different factories, to indoctrinate the
CLO members into the Communist Party and proselytize them to the Communist ideology; if, as also
indicated by Calayag, the CLO purports to attain the ultimate overthrow of the Government first by
making demands from employers for concessions until the employers find it difficult to grant the
same, at which time a strike is declared; if it is only after the various strikes have been carried out
and a crisis is thereby developed among the laboring class, that the Communist forces would
intervene and carry the revolution it is apparent that the CLO was merely a stepping stone in the
preparation of the laborers for the Communist' ultimate revolution. In other words, the CLO had no
function but that of indoctrination and preparation of the members for the uprising that would come. It
was only a preparatory organization prior to revolution, not the revolution itself. The leader of the CLO
therefore, namely Hernandez, cannot be considered as a leader in actual rebellion or of the actual

uprising subject of the accusation. Hernandez, as President of the CLO therefore, by his presidency
and leadership of the CLO cannot be considered as having actually risen up in arms in rebellion
against the Government of the Philippines, or taken part in the conspiracy to commit the rebellion as
charged against him in the present case; he was merely a propagandist and indoctrinator of
Communism, he was not a Communist conspiring to commit the actual rebellion by the mere fact of
his presidency of the CLO.
The court below declares that since November 1949 the Communist Party of the Philippines had
declared the existence of the revolutionary situation and since then the Party had gone underground,
with the CPP leading the struggle for national integration and that in the month of January 1950, it
was decided by the said Party to intensify the HMB military operations for political purposes. The
court implicates the appellant Hernandez as a co-conspirator in this resolution or acts of the
Communist Party by his mere membership thereto. We find this conclusion unwarranted. The
seditious speeches of Hernandez took place before November, 1949 when the CPP went
underground. The court below has not been able to point out, nor have We been able to find among
all acts attributed to Hernandez, any single fact or act of his from which it may be inferred that he took
part in the deliberations declaring the existence of a revolutionary situation, or that he had gone
underground. As a matter of fact the prosecution's evidence is to the effect that Hernandez refused to
go underground preferring to engage in what they consider the legal battle for the cause.
We have also looked into the different documents which have been presented at the time of the trial
and which were confiscated from the office of the Politburo of the Communist Party. The speeches of
Hernandez were delivered before the declaration by the Communist Party of a state of revolutionary
situation in 1949. Neither was it shown that Hernandez was a member of the Executive Committee, or
of the SEC, or of the Politburo of the Communist Party; so NO presumption can arise that he had
taken part in the accord or conspiracy declaring a revolution. In short, there has been no evidence,
direct or indirect, to relate or connect the appellant Hernandez with the uprising or the resolution to
continue or maintain said uprising, his participation in the deliberations leading to the uprising being
inferred only from the fact that he was a communist.
The practice among the top Communists, as declared by the trial court appears to have been for
important members, if they intend actually to join the rebellion, to go underground, which meant
leaving the city, disappearing from sight and/or secretly joining the forces in the field.
The document, Exhibit F-562, which is quoted in the decision, contains the directive of the SEC of
September 1, 1950, to Saulo and Hernandez, which reads:
11. In view of the new developments in the city, send out Elias who prefers to work outside.
Present problem of fighting legally to Com. Soliman. If Soliman is prepared for martyrdom,
retain him to fight legally. If not, send him out with Elias. Same goes with Com. Mino and other
relatively exposed mass leaders.
And the lower court itself found that whereas Saulo went underground and joined the underground
forces outside the City, Hernandez remained in the City, engaged in the work of propaganda, making
speeches and causing the publication of such matters as the Communist Party leaders directed him
to publish.
That Hernandez refused to go underground is a fact which is further corroborated by the following
reasons (excuses) given by him for not going underground, namely (1) that his term of councilor of
the City of Manila was to extend to December, 1951; and (2) that he was elected President of the
CLO for a term which was to end the year 1951.
As a matter of fact the SEC gave instructions to Hernandez not to be involved with Nacionalista
Rebels, and reported to the Politburo that Hernandez "has tendencies of careerism, and tending to
want to deal with leaders of the Nacionalista Party instead of following CPP organizational
procedures."

The court below further found that Hernandez had been furnishing supplies for the Huks in the field.
But the very document dated December 3, 1949, Exhibit D-420422, cited in the decision (printed, p.
49), is to the effect that clothes and shoes that Hernandez was supposed to have sent have not been
received. It is true that some clothes had been sent thru him to the field, but these clothes had come
from a crew member of a ship of the American President Lines. He also, upon request, sent a
portable typewriter to the SEC or Politburo. Furthermore, a certain Niagara Duplicating machine
received by Hernandez from one Rolland Scott Bullard a crew member of the SS President
Cleveland, appease later to have been forwarded by him to the officers of the SEC or the Politburo.
Lastly, it further appears that Taruc and other CPP leaders used to send notes to appellant
Hernandez, who in turn issued press releases for which he found space in the local papers. His acts
in this respect belong to the category of propaganda, to which he appears to have limited his actions
as a Communist.
The acts of the appellant as thus explained and analyzed fall under the category of acts of
propaganda, but do not prove that he actually and in fact conspired with the leaders of the
Communist Party in the uprising or in the actual rebellion, for which acts he is charged in the
information. And his refusal to go underground because of his political commitments occasioned by
his term of election as president of the CLO and the impressions caused by his acts on the
Communist leaders, to the effect that he was in direct communication or understanding with the
Nacionalista Party to which he was affiliated, creates in Us the reasonable doubt that it was not his
Communistic leanings but his political ambitions, that motivated his speeches sympathizing with the
Huks. For which reason We hold that the evidence submitted fails to prove beyond reasonable doubt
that he has conspired in the instigation of the rebellion for which he is held to account in this criminal
case.
The question that next comes up for resolution is: Does his or anyone's membership in the
Communist Party per se render Hernandez or any Communist guilty of conspiracy to commit rebellion
under the provisions of Article 136 of the Revised Penal Code? The pertinent provision reads:
ART. 136. Conspiracy and proposal to commit rebellion or insurrection. The conspiracy and
proposal to commit rebellion or insurrection shall be punished, respectively, by prision
correccional in its maximum period and a fine which shall not exceed 5,000 pesos, and
by prision correccional in its medium period and a fine not exceeding 2,000 pesos.
The advocacy of Communism or Communistic theory and principle is not to be considered as a
criminal act of conspiracy unless transformed or converted into an advocacy of action. In the very
nature of things, mere advocacy of a theory or principle is insufficient unless the communist
advocates action, immediate and positive, the actual agreement to start an uprising or rebellion or an
agreement forged to use force and violence in an uprising of the working class to overthrow
constituted authority and seize the reins of Government itself. Unless action is actually advocated or
intended or contemplated, the Communist is a mere theorist, merely holding belief in the supremacy
of the proletariat a Communist does not yet advocate the seizing of the reins of Government by it. As
a theorist the Communist is not yet actually considered as engaging in the criminal field subject to
punishment. Only when the Communist advocates action and actual uprising, war or otherwise, does
he become guilty of conspiracy to commit rebellion. Borrowing the language of the Supreme Court of
the United States:
In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on
conduct can only be justified by reference to the relationship of that status or conduct to other
concededly criminal activity (here advocacy of violent overthrow), that relationship must be
sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under
the Due Process Clause of the Fifth Amendment. Membership, without more, in an
organization engaged in illegal advocacy, it is now said, has not heretofore been recognized by
this Court to be such a relationship. ... .
What must be met, then, is the argument that membership, even when accompanied by the
elements of knowledge and specific intent, affords an insufficient quantum of participation in

the organization's alleged criminal activity, that is, an insufficiently significant form of aid and
encouragement to permit the imposition of criminal sanctions on that basis. It must indeed be
recognized that a person who merely becomes a member of an illegal organization, by that
"act" alone need be doing nothing more than signifying his assent to its purposes and activities
on one hand, and providing, on the other, only the sort of moral encouragement which comes
from the knowledge that others believe in what the organization is doing. It may indeed be
argued that such assent and encouragement do fall short of the concrete, practical impetus
given to a criminal enterprise which is lent for instance by a commitment on the part of the
conspirator to act in furtherance of that enterprise. A member, as distinguished from a
conspirator, may indicate his approval of a criminal enterprise by the very fact of his
membership without thereby necessarily committing himself to further it by any act or course of
conduct whatever. (Scales v. United States, 367 U.S. 203, 6 L. ed. 782)
The most important activity of appellant Hernandez appears to be the propagation of improvement of
conditions of labor through his organization, the CLO. While the CLO of which he is the founder and
active president, has communistic tendencies, its activity refers to the strengthening of the unity and
cooperation between labor elements and preparing them for struggle; they are not yet indoctrinated in
the need of an actual war with or against Capitalism. The appellant was a politician and a labor leader
and it is not unreasonable to suspect that his labor activities especially in connection with the CLO
and other trade unions, were impelled and fostered by the desire to secure the labor vote to support
his political ambitions. It is doubtful whether his desire to foster the labor union of which he was the
head was impelled by an actual desire to advance the cause of Communism, not merely to advance
his political aspirations.
Insofar as the appellant's alleged activities as a Communist are concerned, We have not found, nor
has any particular act on his part been pointed to Us, which would indicate that he had advocated
action or the use of force in securing the ends of Communism. True it is, he had friends among the
leaders of the Communist Party, and especially the heads of the rebellion, but this notwithstanding,
evidence is wanting to show that he ever attended their meetings, or collaborated and conspired with
said leaders in planning and encouraging the acts of rebellion, or advancing the cause thereof.
Insofar as the furnishing of the mimeograph machine and clothes is concerned, it appears that he
acted merely as an intermediary, who passed said machine and clothes on to others. It does not
appear that he himself furnished funds or material help of his own to the members of the rebellion or
to the forces of the rebellion in the field.
But the very act or conduct of his in refusing to go underground, in spite of the apparent desire of the
chief of the rebellion, is clear proof of his non-participation in the conspiracy to engage in or to foster
the rebellion or the uprising.
We next consider the question as to whether the fact that Hernandez delivered speeches of
propaganda in favor of Communism and in favor of rebellion can be considered as a criminal act of
conspiracy to commit rebellion as defined in the law. In this respect, the mere fact of his giving and
rendering speeches favoring Communism would not make him guilty of conspiracy, because there
was no evidence that the hearers of his speeches of propaganda then and there agreed to rise up in
arms for the purpose of obtaining the overthrow of the democratic government as envisaged by the
principles of Communism. To this effect is the following comment of Viada:
CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que el dia que
se anunciara la subasta de consumes se echaran a la calle para conseguir aunque fuera
preciso acudir a la fuerza el reparto entre los vecinos ricos solamente, sera responsable de un
delito de conspiracion para la sedicion? El Tribunal Supreme ha resuelto la negative al
casar cierta sentencia de la Audiencia de Valencia, que entendio lo contrario: "Considerando
que, con areglo a lo que dispone el art. 4. del Codigo Penal, hay conspiracion cuando dos o
mas personas se conciertan para la execution de un delito y resuelven cmeterlo; y no
constando que existiera ese concierto en cuanto a los hechos que se refieren en la tercera
pregunta del veredicto, pues en ella solo se habla de los actos de induccion que el procesado
realizo, sin expresar el efecto que la mismo produjo en el animo de las personas a quienes se
dirigian, ni si estas aceptaron o no lo que se las propuso, resulta evidence que faltan los

clementos integrantes de la conspiracion, etc." (Se. de 5 de Julio de 1907, Gaceta de 7 de

Enero de 1909.) (Viada, Tomo I, Codigo Penal, p. 152)
In view of all the above circumstances We find that there is no concrete evidence proving beyond
reasonable doubt that the appellant (Hernandez) actually participated in the rebellion or in any act of
conspiracy to commit or foster the cause of the rebellion. We are constrained, in view of these
circumstances, to absolve, as We hereby absolve, the appellant Amado V. Hernandez from the crime
charged, with a proportionate share of the costs de oficio.
APPEAL OF OTHER DEFENDANTS-APPELLANTS
All the other defendants were found guilty as accomplices in the crime of rebellion as charged in the
information and were each sentenced to suffer the penalty of 10 years and 1 day of prision mayor,
with the accessories provided by law, and to pay their proportionate share of the costs.
Legal Considerations. Before proceeding to consider the appeals of the other defendants, it is
believed useful if not necessary to lay dawn the circumstances or facts that may be determinative of
their criminal responsibility or the existence or nature thereof. To begin with, as We have exhaustively
discussed in relation to the appeal of Hernandez, we do not believe that mere membership in the
Communist Party or in the CLO renders the member liable, either of rebellion or of conspiracy to
commit rebellion, because mere membership and nothing more merely implies advocacy of abstract
theory or principle without any action being induced thereby; and that such advocacy becomes
criminal only if it is coupled with action or advocacy of action, namely, actual rebellion or conspiracy to
commit rebellion, or acts conducive thereto or evincing the same.
On the other hand, membership in the HMB (Hukbalahap) implies participation in an actual uprising
or rebellion to secure, as the Huks pretend, the liberation of the peasants and laboring class from
thraldom. By membership in the HMB, one already advocates uprising and the use of force, and by
such membership he agrees or conspires that force be used to secure the ends of the party. Such
membership, therefore, even if there is nothing more, renders the member guilty of conspiracy to
commit rebellion punishable by law.
And when a Huk member, not content with his membership, does anything to promote the ends of the
rebellion like soliciting contributions, or acting as courier, he thereby becomes guilty of conspiracy,
unless he takes to the field and joins in the rebellion or uprising, in which latter case he commits
rebellion.
In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as the
"Katipunan", the purpose of which was to overthrow the government by force. Each of the defendants
on various times solicited funds from the people of Mexico, Pampanga. The Court held that the
defendants were guilty of conspiracy and proposal to commit rebellion or insurrection and not of
rebellion or insurrection itself. Thus, the Court ruled that:
From the evidence adduced in this case we are of the opinion that the said defendants are
guilty, not of inciting, setting or foot, or assisting or engaging in rebellion, but rather of the crime
of conspiring to overthrow, put down, and destroy by force the Government of the United
States in the Philippine Islands, and therefore we find that said defendants, and each of them,
did, together with others, in the months of February and March, 1903, in the Province of
Pampanga, Philippine Islands, conspire to overthrow, put down, and to destroy by force the
Government of the United States in the Philippine Islands. (U.S. v. Vergara, et al., 3 Phil. 432,
434.)
JUAN J. CRUZ
The court found him to be a Communist with various aliases, a member of the Central Committee of
the CLO member of the Central Committee of the CPP and as such committed to the establishment
of the dictatorship of the proletariat To the same effect is the testimony of Guillermo Calayag.

There is no evidence to connect him with the rebellion or to the conspiracy to commit rebellion. He
should therefore be absolved of the charges contained in the information.
AMADO RACANDAY
The trial court found him guilty as a Communist, a Secretary and Executive Committee member of the
CLO a communications center of the Communist Party, having been found in possession of letters
from Federico Maclang to Salome Cruz, and solicitor of contributions for the Huks.
Racanday admits being a member of the Executive Committee of the CLO Editor of the Kidlat of the
Government Workers Union, receiving copies of the Titis. Calayag testified that he was a member of
the Central Committee of the Communist Party entrusted with the duty of receiving directives of the
Regional Committee of the Communist Party.
The letters found in his possession are dated February 14, 1950, before the Communist Party went
underground. We have been unable to find the evidence upon which the court bases its conclusion
that he received contributions for the Huks. With these circumstances in mind, We are not convinced
beyond reasonable doubt that as a Communist he took part in the conspiracy among the officials of
the Communist Party to take part and support the rebellion of the Huks.
We are, therefore, constrained to absolve him of the charges filed against him.
GENARO DE LA CRUZ
The court found him to be a Communist since 1945, an officer of an organized Communist branch in
Pasay City, a member of the Central Committee and Treasurer of the CLO. He admitted his
membership and his position as member of the executive committee and treasurer of the CLO these
facts being corroborated by the witness Guillermo Calayag.
His membership in the Communist Party dates as far back as the year 1945. As a communist,
Genaro de la Cruz received quotas and monetary contributions coming from the areas under his
jurisdiction, and one time he made a receipt from a member from Caloocan at the CLO headquarters
at Azcarraga signing the receipt as "Gonzalo" which is one of his aliases. He also distributed copies
of the "Titis" magazine. `
While his membership in the Communist Party plus his having received contributions for the party
indicate that he is an active member, it was not shown that the contributions that he received from
Communist Party members were received around the year 1950 when the Central Committee of the
Communist Party had already agreed to conspire and go underground and support the Huk rebellion.
Under these circumstances We cannot find him guilty of conspiracy to commit rebellion because of
the lack of evidence to prove his guilt beyond reasonable doubt.
JULIAN LUMANOG
The court found him to be an organizer of HMB among the mill workers, solicited contributions for the
HMB and Central Committee member of the CLO as per Testimony of Guillermo Calayag.
He admitted that he joined the Communist Party because he was made to believe that the Party is for
the welfare of the laborers. He also admitted being a member of the Central Committee of the CLO
Calayag testified that Lumanog organized the HMB units of the Communist Party in the Lumber
Unions and attended a Communist meeting held by Maclang.
Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by him to one
Nicasio Pamintuan, one of the members of the HMB Special Unit Trigger Squad) in Manila for the use
of the said unit.

Considering that the HMB was engaged in a rebellion to overthrow the government, it is evident that
by giving his contributions he actually participated in the conspiracy to overthrow the government and
should, therefore, be held liable for such conspiracy, and should be sentenced accordingly.
FERMIN RODILLAS
The trial court found that Fermin Rodillas was a member of the CPP and the CLO that his activities
consisted in soliciting contributions, in cash and in kind, from city residents for the use of the HMB,
turning over said collections to the Party; that he has given asylum to a wanted Hukbalahap at his
house at Juan Luna St., Gagalangin, which house was used as Military post. The above findings of
the court are fully supported by the testimony of Domingo Clarin.
Considering that while he has not actually taken part in the rebellion, he has shown sympathy with the
cause by soliciting contributions for it and had given shelter to the Huks. We feel that the court was
fully justified in finding him guilty, but We hold that he should be declared liable merely as a coconspirator in the crime of conspiracy to commit rebellion, and should be sentenced accordingly.
BAYANI ESPIRITU
This appellant was found by the court to be a Communist, he having admitted membership in the
Communist Party since 1945; that his duties as a Communist was to help in the office of the National
Finance Committee, assorting papers and written documents; that sometimes he accompanied the
purchaser of medicines, shoes, papers, foodstuffs and clothing to be given to the Huks; that he is a
member of the Communication Division of the CPP in Manila, in charge of distribution of letters or
communications; that he admits having written to Salome Cruz, courier of the Communist Party, when
he asked for his necessities, such as money and shoes, etc.
The facts found by the court are sufficiently supported by the communications and evidence
submitted by the prosecution. The exhibits show that he was in constant communication with the
communists; serving them as courier. His oath as a member of the Communist Party was submitted
in court and in it he admits obedience to all orders of the Party and to propagate the stability of the
PKP.
Considering that the PKP was engaged in an actual uprising against the constituted Government and
that Bayani Espiritu was in constant communication with the Communist Party and served it as
courier, We believe that the court was fully justified in finding him guilty. However, We believe that not
having actually taken up arms in the uprising he may only be declared guilty of conspiracy to commit
rebellion.
TEOPISTA VALERIO
The court below found that this appellant joined the Communists in 1938 in San Luis, Pampanga,
under Casto Alejandrino, who later became her common-law husband; that her aliases are "Estrella"
and "Star"; that she was found in possession of various documents written to top Communists like
Alejandrino, Lava and Romy, as well as a letter from Taruc congratulating her for the delivers, of a
son.
Jose Taguiang testified that she was a member of the Provincial Committee of the CPP in Nueva
Ecija, later Chairman of the Finance Department, and then promoted to Finance Officer of the Central
Luzon Committee. Alicia Vergara, a Huk courier, testified that she delivered letter from the mountains
to Teopista Valerie, who was in turn also a courier.
Without considering the close relationship that she had with top Communist Casto Alejandrino, We
are satisfied that she herself was, aside from being a Huk courier, also a Huk, a member of the HMB
from 1942 to 1951. As she was a Communist and at the same time a member of the HMB, and
considering that the HMB was engaged in an uprising to uproot the legitimate government, there
cannot be any question that she was in conspiracy with the other members of her Party against the

constituted government. We hold, therefore, that the evidence proves beyond reasonable doubt that
she is guilty of conspiracy to commit rebellion.
DEFENDANTS NOT INCLUDED IN DECISION
In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia, Mariano P.
Balgos, Alfredo B. Saulo and Jacobo Espino was dismissed because they have not been
apprehended at the time of the trial.
PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND
REPUBLIC ACT NO. 1700, DISTINGUISHED
In the case at bar the prosecution is for actual rebellion which consists in rising publicly and taking
aims against the Government for the purpose of removing from the allegiance to said Government or
its laws, the territory of the Philippines, or any part thereof, etc., a crime defined in Article 134 of the
Revised Penal Code; whereas Evangelista was charged and convicted for inciting to rebellion under
Art. 138, Revised Penal Code (formerly Sec. 2, Act No. 292). As the specific charge against
appellants is that of rising up in arms in actual rebellion against the Government, they cannot be held
guilty of inciting the people to arms under Article 138, which is a different offense.
On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes membership in
any organization or association committed to subvert the Government, cannot be applied to the
appellants because said Act was approved on June 20, 1957 and was not in force at the time of the
commission of the acts charged against appellants (committed 1945-1950) ; the Anti-Subversion Act
punishes participation or membership in an organization committed to overthrow the duly constituted
Government, a crime district from that of actual rebellion with which appellants are charged.
CONCLUSION
WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants Amado V.
Hernandez, Juan J. Cruz, Amado Racanday and Genaro de la Cruz are absolved from the charges
contained in the information, with their proportionate share of the costs de oficio. The defendantsappellants Julian Lumanog and Fermin Rodillas in Criminal Case No. 15841 (G.R. No. L-6025) and
the defendants-appellants Bayani Espiritu and Teopista Valerio in Criminal Case No. 15479 (G.R. No.
L-6026) are hereby found guilty of the crime of conspiracy to commit rebellion, as defined and
punished in Article 136 of the Revised Penal Code, and each and everyone of them is hereby
sentenced to suffer imprisonment for five years, four months and twenty-one days of prision
correccional, and to pay a fine of P5,000.00, with subsidiary imprisonment in case of insolvency and
to pay their proportional share of the costs. So ordered.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-16486

March 22, 1921

THE UNITED STATES, plaintiff-appelle,

vs.
CALIXTO VALDEZ Y QUIRI, defendant-appellant.
Angel Roco for appellant.
Acting Attorney-General Feria for appellee.
STREET, J.:
The rather singular circumstances attending the commission of the offense of homicide which is
under discussion in the present appeal are these:
At about noon, on November 29, 1919, while the interisland steamer Vigan was anchored in the
Pasig River a short distance from the lighthouse and not far from where the river debouches into the
Manila Bay, a small boat was sent out to raise the anchor. The crew of this boat consisted of the
accused, Calixto Valdez y Quiri, and six others among whom was the deceased, Venancio Gargantel.
The accused was in charge of the men and stood at the stern of the boat, acting as helmsman, while
Venancio Gargantel was at the bow.
The work raising the anchor seems to have proceeded too slowly to satisfy the accused, and he
accordingly began to abuse the men with offensive epithets. Upon this Venancio Gargantel
remonstrated, saying that it would be better, and they would work better, if he would not insult them.
The accused took this remonstrance as a display of insubordination; and rising in rage he moved
towards Venancio, with a big knife in hand, threatening to stab him. At the instant when the accused
had attained to within a few feet of Venancio, the latter, evidently believing himself in great and
immediate peril, threw himself into the water and disappeared beneath its surface to be seen no
more.
The boat in which this incident took place was at the time possibly 30 or 40 yards from shore and was
distant, say, 10 paces from the Vigan. Two scows were moored to the shore, but between these and
the boat intervened a space which may be estimated at 18 or 20 yards. At it was full midday, and
there was nothing to obstruct the view of persons upon the scene, the failure of Venancio Gargantel
to rise to the surface conclusively shows that, owing to his possible inability to swim or the strength of
the current, he was borne down into the water and was drowned.
Two witnesses who were on the boat state that, immediately after Venancio leaped into the water, the
accused told the remaining members of the crew to keep quiet or he would kill them. For this reason
they made no movement looking to rescue; but inasmuch as there witnesses are sure that Venancio
did not again come to the surface, efforts at rescue would have been fruitless. The fact that the
accused at his juncture threatened the crew with violence is, therefore, of no moment except tho
show the temporary excitement under which he was laboring.
On the next day one of the friends of Venancio Gargantel posted himself near the lighthouse to watch
for the body, in the hope that it might come to the surface and could thus be recovered. Though his
friendly vigil lasted three days nothing came of it.
It may be added that Venancio has not returned to his lodging in Manila, where he lived as a bachelor
in the house of an acquaintance; and his personal belongings have been delivered to a
representative of his mother who lives in the Province of Iloilo. His friends and relatives, it is needless
to say, take it for granted that he is dead.
The circumstances narrated above are such in our opinion as to exclude all reasonable possibility
that Venancio Gargantel may have survived; and we think that the trial judge did not err in holding
that he is dead and that he came to his death by drowning under the circumstances stated. The proof
is direct that he never rose to the surface after jumping into the river, so far as the observers could
see; and this circumstance, coupled with the known fact that human life must inevitably be
extinguished by asphyxiation under water, is conclusive of his death. The possibility that he might
have swum ashore, after rising in a spot hidden from the view of his companions, we consider too
remote to be entertained for a moment.
As to the criminal responsibility of the accused for the death thus occasioned the likewise can be no
doubt; for it is obvious that the deceased, in throwing himself in the river, acted solely in obedience to

the instinct of self-preservation and was in no sense legally responsible for his own death. As to him it
was but the exercise of a choice between two evils, and any reasonable person under the same
circumstances might have done the same. As was once said by a British court, "If a man creates in
another man's mind an immediate sense of dander which causes such person to try to escape, and in
so doing he injuries himself, the person who creates such a state of mind is responsible for the
injuries which result." (Reg. vs. Halliday, 61 L. T. Rep. [N.S.], 701.
In this connection a pertinent decision from the Supreme Court of Spain, of July 13, 1882, is cited in
the brief of The Attorney-General, as follows: It appeared that upon a certain occasion an individual,
after having inflicted sundry injuries upon another with a cutting weapon, pointed a shotgun at the
injured person and to escape the discharge the latter had to jump into a river where he perished by
drowning. The medical authorities charged with conducting the autopsy found that only one of the
wounds caused by a cut could have resulted in the death of the injured person, supposing that he had
received no succour, and that by throwing himself in the river he in fact died of asphyxia from
submersion. Having been convicted as the author of the homicide, the accused alleged upon appeal
that he was only guilty of the offense of inflicting serious physical injuries, or at most of frustrated
homicide. The Supreme Court, disallowing the appeal, enunciated the following doctrine: "That even
though the death of the injured person should not be considered as the exclusive and necessary
effect of the very grave wound which almost completely severed his axillary artery, occasioning a
hemorrhage impossible to stanch under the circumstances in which that person was placed,
nevertheless as the persistence of the aggression of the accused compelled his adversary, in order to
escape the attack, to leap into the river, an act which the accused forcibly compelled the injured
person to do after having inflicted, among others, a mortal wound upon him and as the aggressor by
said attack manifested a determined resolution to cause the death of the deceased, by depriving him
of all possible help and putting him in the very serious situation narrated in the decision appealed
from, the trial court, in qualifying the act prosecuted as consummated homicide, did not commit any
error of law, as the death of the injured person was due to the act of the accused." (II Hidalgo, Codigo
Penal, p. 183.)
The accused must, therefore, be considered the responsible author of the death of Venancio
Gargantel, and he was properly convicted of the offense of homicide. The trial judge appreciated as
an attenuating circumstance the fact that the offender had no intention to commit so great a wrong as
that committed. (Par. 3, art. 9 Penal Code.) In accordance with this finding the judge sentenced the
accused to undergo imprisonment for twelve years and one day, reclusion temporal, to suffer the
corresponding accessories, to indemnify the family of the deceased in the sum of P500, and to pay
the costs. Said sentenced is in accordance with law; and it being understood that the accessories
appropriate to the case are those specified in article 59 of the Penal Code, the same is affirmed, with
costs against the appellant. So ordered.
Mapa, C.J., Malcolm, Avancea and Villamor, JJ., concur.

Separate Opinions
ARAULLO, J., dissenting:
I dissent from the majority opinion in this case.
The only fact that the evidence shows in that Venancio Gargantel, one of those who were in a boat of
the steamerVigan subject to the orders of the accused Calixto Valdez and who at the time was
engaged in the work of raising the anchor of that vessel, which was then lying at the Pasig River, a
short distance from the lighthouse and not far from its mouth at the Manila Bay, upon seeing that the
accused was approaching him, armed with a big knife, and in the attitude of attacking him, threw
himself into the water and disappeared from the surface and had not been seen again. This event
took place at noon on November 29, 1919, the boat being then about 30 or 40 yards from land and
about 10 steps from the Vigan, there being two lighters moored to the shore and at a distance of
about 18 or 20 yards from the boat. All of these facts are stated in the decision itself.
The original information in the present case, charging Calixto Valdez y Quiri with the crime of
homicide and alleging that as a result of his having thrown himself into the river under the

circumstances mentioned, Venancio Gargantel was drowned, was presented on December 8, 1919,
that is, nine days afterwards.
There is no evidence whatever that the corpse of Venancio Gargantel had been found or, what is the
same thing, that he had died. From November 28, the day when the event occurred, until December
8, when the information was filed, it cannot in any manner be maintained that the necessary time had
passed for us to properly conclude, as is alleged in the information, that said Gargantel had died by
drowning, as a consequence of his having thrown himself into the water upon seeing himself
threatened and attacked by the accused. Neither does it appear in the evidence that all the
precaution necessary for us to assure ourselves, as a sure and proven fact, that Venancio Gargantel
then died by drowning, were taken; nor is there any evidence that it would have been impossible for
him, by swimming or by any other means to rise to the surface at a place other than the Pasig River
or that where the boat was, from which he threw himself into the river, and in that manner save
himself from death.
From the evidence of the witnesses for the prosecution which is the only evidence in the record, for
the accused di not take the stand, it only appears that Venancio Gargantel, after having jumped from
the boat, did not rise again to the surface. Such was the statement of two of those witnesses who
were members of the boat's crew at the time. Another witness also declared that Gargantel was
afterwards not again seen at the house where he lived in this city, No. 711 San Nicolas Street, where
he kept his trunks and some effects, a fact which caused his mother, who lived in the municipality of
Guimbal, in the Province of Iloilo, upon being informed of it and upon the failure of Venancio to
appear in said place, to give special power on the 28th of that month of December, that is, one month
afterwards, to a student, Ignacio Garzon, to get the trunks and effects of Venancio from said house.
Sid Garzon himself testified, upon being asked whether Venancio Gargantel had returned to the
house of his parents since November 29, 1919, that he had no information about it, and another
witness, Pedro Garcia, of the prosecution, stated that he had probably died, because he had not seen
Venancio Gargantel.
Therefore, in short, the only fact proved is that since Venancio Gargantel threw himself into the river,
upon being threatened with a knife by the accused, his whereabouts has remained unknown even at
the moment of rendering judgment in this case, or, February 9, 1920, that is, two and one-half months
after the occurrence of the event.
It is stated in the decision that the friend and parents of Gargantel give him up for dead. There is
nevertheless in the record no statement of any parent of Gargantel to that effect; for his mother Maria
Gatpolitan, a resident of the municipality of Guimbal, merely stated in the power of attorney executed
in favor of Ignacio Garzon that the latter should take steps in order that the city fiscal might
investigate the death of her son which, according to information, was caused by another members, of
the crew of the steamer Vigan; and none of his friends, that is, none of the two members of the party
in the boat at that time and of the crew of the steamer Vigan, nor Maximo Gumbog, the owner of the
house in which Gargantel lived in this city, nor Pedro Garcia, another member of the crew of that
steamer, and finally, nor Ignacio Garzon himself has stated that he gave up Gargantel for dead, for
the simple reason that this was not possible, for they only knew that he did not again rise to the
surface and was not seen again after having thrown himself into the river from the boat.
For this reason it is stated in the decision that the circumstances therein stated are such that they
exclude all reasonable possibility that Venancio Gargantel could have survived and that the
circumstance that never rose to the surface after having jumped into the river, as witnessed by the
persons present, together with the admitted fact that human life is necessarily asphyxiated under the
water, is conclusive that he died. Then, there is nothing more than a deduction that Gargantel had
died based upon those facts and circumstances.
In my opinion this is not sufficient to convict the accused as guilty of homicide, because there is the
possibility that Gargantel had risen to the surface at some place away from the where he threw
himself into the river and had embarked on some other vessel in the same river or out of it in the bay
and had gone abroad, or to some province of these Islands and is found in some municipality thereof,
cannot be denied. And this is very probable inasmuch as it does not appear in the record that the
necessary investigation has been made in order to determined even with only some measure of
certainty, not to say beyond all reasonable doubt, that it was and is impossible to find said person or
determined his whereabouts.

Furthermore, there is not even a presumption juris tantum that he had died, for in order that this
presumption may exist, according to section 334 of the Code of Civil Procedure, it is necessary that
no information about him should have been received for seven years from his disappearance upon
his throwing himself into the river, which occurred on November 29, 1919, that is, only about one year
and four months ago. And if, in order that a finding of a civil character in favor of or against some
person, may be made, by virtue of that presumption, it is necessary that seven years should have
elapsed without any notice being received of the person whose whereabouts is unknown, it is not just,
reasonable, or legal that the period of one year and four months from his disappearance or since
Venancio Gargantel threw himself into the water should suffice for us to impose upon the accused
Calixto Valdez such a grave penalty as that of twelve years and one day of reclusion temporal, merely
assuming without declaring it, as a proven fact, that Gargantel has died and at the same time finding
said accused to be the author of that death.
Lastly, the decision of the English Supreme Court or that of the Spanish Supreme Court dated July
13, 1882, cited by the majority opinion is not applicable. The first, is not applicable because in the
present case it is not proved, beyond reasonable doubt, that some damage resulted to Gargantel, just
as it cannot be considered as proved that he had died, or that he had been injured or that he had
suffered some injury after having thrown himself into the river as a result of the threat of the accused.
The second is not applicable because the decision of the Supreme Court of Spain refers to a case, in
which the injured party had already been wounded with a cutting instrument by the accused before
throwing himself into the river upon the latter aiming at him with his gun, it having afterwards been
proved upon his being taken out of the river that the wound inflicted upon him by the accused was
mortal; and, consequently, it was declared by said court that, even if the death of the deceased be
considered as not having resulted exclusively and necessarily from that most grave wound, the
persistence of the aggression of the accused compelled his adversary to escape it and threw himself
into the river, by depriving him of all possible help and placing him in the serious situation related in
the judgment appealed from -a case which, as is seen, is very different from that which took place in
the present case.
For the reasons above stated, I am of the opinion, with due respect to the opinion of the majority, that
the accused Calixto Valdez y Quiri cannot be found guilty of homicide and should be acquitted.

SECOND DIVISION
[G.R. No. 141066. February 17, 2005]

EVANGELINE
LADONGA, petitioner,
PHILIPPINES,respondent.

vs. PEOPLE

OF

THE

DECISION
AUSTRIA-MARTINEZ, J.:

Petitioner Evangeline Ladonga seeks a review of the Decision, [1] dated May 17, 1999, of the
Court of Appeals in CA-G.R. CR No. 20443, affirming the Decision dated August 24, 1996, of the
Regional Trial Court (RTC), Branch 3 of Bohol, in Criminal Case Nos. 7068, 7069 and 7070
convicting her of violation of B.P. Blg. 22, otherwise known as The Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were filed with the RTC,
docketed as Criminal Case Nos. 7068 - 7070. The Information in Criminal Case No. 7068 alleges as
follows:

That, sometime in May or June 1990, in the City of Tagbilaran, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating, and
mutually helping with one another, knowing fully well that they did not have sufficient funds
deposited with the United Coconut Planters Bank (UCPB), Tagbilaran Branch, did then and there
willfully, unlawfully, and feloniously, draw and issue UCPB Check No. 284743 postdated July 7,
1990 in the amount of NINE THOUSAND SEVENTY-FIVE PESOS AND FIFTY-FIVE
CENTAVOS (P9,075.55), payable to Alfredo Oculam, and thereafter, without informing the latter
that they did not have sufficient funds deposited with the bank to cover up the amount of the check,
did then and there willfully, unlawfully and feloniously pass on, indorse, give and deliver the said
check to Alfredo Oculam by way of rediscounting of the aforementioned checks; however, upon
presentation of the check to the drawee bank for encashment, the same was dishonored for the
reason that the account of the accused with the United Coconut Planters Bank, Tagbilaran Branch,
had already been closed, to the damage and prejudice of the said Alfredo Oculam in the aforestated
amount.
Acts committed contrary to the provisions of Batas Pambansa Bilang 22.[2]
The accusatory portions of the Informations in Criminal Case Nos. 7069 and 7070 are similarly
worded, except for the allegations concerning the number, date and amount of each check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22, 1990 in the amount
ofP12,730.00;[3]
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22, 1990 in the amount ofP8,496.55.
[4]

The cases were consolidated and jointly tried. When arraigned on June 26, 1991, the two
accused pleaded not guilty to the crimes charged. [5]
The prosecution presented as its lone witness complainant Alfredo Oculam. He testified that: in
1989, spouses Adronico[6] and Evangeline Ladonga became his regular customers in his pawnshop
business in Tagbilaran City, Bohol; [7] sometime in May 1990, the Ladonga spouses obtained
aP9,075.55 loan from him, guaranteed by United Coconut Planters Bank (UCPB) Check No. 284743,
post dated to dated July 7, 1990 issued by Adronico; [8] sometime in the last week of April 1990 and
during the first week of May 1990, the Ladonga spouses obtained an additional loan of P12,730.00,
guaranteed by UCPB Check No. 284744, post dated to dated July 26, 1990 issued by Adronico;
[9]
between May and June 1990, the Ladonga spouses obtained a third loan in the amount
ofP8,496.55, guaranteed by UCPB Check No. 106136, post dated to July 22, 1990 issued by
Adronico;[10] the three checks bounced upon presentment for the reason CLOSED ACCOUNT;[11]when
the Ladonga spouses failed to redeem the check, despite repeated demands, he filed a criminal
complaint against them.[12]

While admitting that the checks issued by Adronico bounced because there was no sufficient
deposit or the account was closed, the Ladonga spouses claimed that the checks were issued only to
guarantee the obligation, with an agreement that Oculam should not encash the checks when they
mature;[13] and, that petitioner is not a signatory of the checks and had no participation in the issuance
thereof.[14]
On August 24, 1996, the RTC rendered a joint decision finding the Ladonga spouses guilty
beyond reasonable doubt of violating B.P. Blg. 22, the dispositive portion of which reads:

Premises considered, this Court hereby renders judgment finding accused Adronico Ladonga, alias
Ronie, and Evangeline Ladonga guilty beyond reasonable doubt in the aforesaid three (3) criminal
cases, for which they stand charged before this Court, and accordingly, sentences them to
imprisonment and fine, as follows:
1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year for each of them, and a fine
in the amount of P9,075.55, equivalent to the amount of UCPB Check No. 284743;
2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them to one (1) year and a fine
of P12, 730.00, equivalent to the amount of UCPB Check No. 284744; and,
3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for each of them and a fine
of P8,496.55 equivalent to the amount of UCPB Check No. 106136;
4. That both accused are further ordered to jointly and solidarily pay and reimburse the
complainant, Mr. Alfredo Oculam, the sum of P15,000.00 representing actual expenses incurred in
prosecuting the instant cases;P10,000.00 as attorneys fee; and the amount of P30,302.10 which is
the total value of the three (3) subject checks which bounced; but without subsidiary imprisonment
in case of insolvency.
With Costs against the accused.
SO ORDERED.[15]
Adronico applied for probation which was granted. [16] On the other hand, petitioner brought the
case to the Court of Appeals, arguing that the RTC erred in finding her criminally liable for conspiring
with her husband as the principle of conspiracy is inapplicable to B.P. Blg. 22 which is a special law;
moreover, she is not a signatory of the checks and had no participation in the issuance thereof. [17]
On May 17, 1999, the Court of Appeals affirmed the conviction of petitioner. [18] It held that the
provisions of the penal code were made applicable to special penal laws in the decisions of this Court
in People vs. Parel, [19] U.S. vs. Ponte, [20] and U.S. vs. Bruhez.[21] It noted that Article 10 of the Revised
Penal Code itself provides that its provisions shall be supplementary to special laws unless the latter
provide the contrary. The Court of Appeals stressed that since B.P. Blg. 22 does not prohibit the
applicability in a suppletory character of the provisions of the Revised Penal Code (RPC), the
principle of conspiracy may be applied to cases involving violations of B.P. Blg. 22. Lastly, it ruled that
the fact that petitioner did not make and issue or sign the checks did not exculpate her from criminal
liability as it is not indispensable that a co-conspirator takes a direct part in every act and knows the
part which everyone performed. The Court of Appeals underscored that in conspiracy the act of one
conspirator could be held to be the act of the other.
Petitioner sought reconsideration of the decision but the Court of Appeals denied the same in a
Resolution dated November 16, 1999.[22]
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:

1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE DRAWER OR ISSUER OF
THE THREE CHECKS THAT BOUNCED BUT HER CO-ACCUSED HUSBAND UNDER THE
LATTERS ACCOUNT COULD BE HELD LIABLE FOR VIOLATIONS OF BATAS PAMBANSA
BILANG 22 AS CONSPIRATOR.
2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN VIOLATIONS OF BATAS
PAMBANSA BILANG 22 BY INVOKING THE LAST SENTENCE OF ARTICLE 10 OF THE
REVISED PENAL CODE WHICH STATES:
Art. 10. Offenses not subject of the provisions of this Code. Offenses which are or in the future may
be punished under special laws are not subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially provide the contrary.
B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE COURT OF APPEALS IN
AFFIRMING IN TOTO THE CONVICTION OF PETITIONER AS CONSPIRATOR APPLYING
THE SUPPLETORY CHARACTER OF THE REVISED PENAL CODE TO SPECIAL LAWS
LIKE B.P. BLG. 22IS APPLICABLE.[23]
Petitioner staunchly insists that she cannot be held criminally liable for violation of B.P.
Blg. 22because she had no participation in the drawing and issuance of the three checks subject of
the three criminal cases, a fact proven by the checks themselves. She contends that the Court of
Appeals gravely erred in applying the principle of conspiracy, as defined under the RPC, to violations
of B.P. Blg. 22. She posits that the application of the principle of conspiracy would enlarge the scope
of the statute and include situations not provided for or intended by the lawmakers, such as
penalizing a person, like petitioner, who had no participation in the drawing or issuance of checks.
The Office of the Solicitor General disagrees with petitioner and echoes the declaration of
Court of Appeals that some provisions of the Revised Penal Code, especially with the addition of
second sentence in Article 10, are applicable to special laws. It submits that B.P. Blg. 22 does
provide any prohibition regarding the applicability in a suppletory character of the provisions of
Revised Penal Code to it.

the
the
not
the

Article 10 of the RPC reads as follows:

ART. 10. Offenses not subject to the provisions of this Code. Offenses which are or in the future
may be punishable under special laws are not subject to the provisions of this Code. This Code
shall be supplementary to such laws, unless the latter should specially provide the contrary.
The article is composed of two clauses. The first provides that offenses which in the future are
made punishable under special laws are not subject to the provisions of the RPC, while the second
makes the RPC supplementary to such laws. While it seems that the two clauses are contradictory, a
sensible interpretation will show that they can perfectly be reconciled.
The first clause should be understood to mean only that the special penal laws are controlling
with regard to offenses therein specifically punished. Said clause only restates the elemental rule of
statutory construction that special legal provisions prevail over general ones. [24] Lex specialis
derogant generali. In fact, the clause can be considered as a superfluity, and could have been
eliminated altogether. The second clause contains the soul of the article. The main idea and purpose
of the article is embodied in the provision that the "code shall be supplementary" to special laws,
unless the latter should specifically provide the contrary.
The appellate courts reliance on the cases of People vs. Parel,[25] U.S. vs. Ponte,[26] and U.S. vs.
Bruhez[27] rests on a firm basis. These cases involved the suppletory application of principles under
the then Penal Code to special laws. People vs. Parel is concerned with the application of Article

22[28] of the Code to violations of Act No. 3030, the Election Law, with reference to the retroactive
effect of penal laws if they favor the accused. U.S. vs. Ponte involved the application of Article 17 [29] of
the same Penal Code, with reference to the participation of principals in the commission of the crime
of misappropriation of public funds as defined and penalized by Act No. 1740. U.S. vs.
Bruhez covered Article 45[30] of the same Code, with reference to the confiscation of the instruments
used in violation of Act No. 1461, the Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of the provisions of the RPC.
Thus, in the absence of contrary provision in B.P. Blg. 22, the general provisions of the RPC which,
by their nature, are necessarily applicable, may be applied suppletorily. Indeed, in the recent case
of Yu vs. People,[31] the Court applied suppletorily the provisions on subsidiary imprisonment under
Article 39[32] of the RPC to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is analogous to the
application of the provision on principals under Article 17 in U.S. vs. Ponte. For once conspiracy or
action in concert to achieve a criminal design is shown, the act of one is the act of all the
conspirators, and the precise extent or modality of participation of each of them becomes secondary,
since all the conspirators are principals. [33]
All these notwithstanding, the conviction of the petitioner must be set aside.
Article 8 of the RPC provides that a conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it. To be held guilty as a coprincipal by reason of conspiracy, the accused must be shown to have performed an overt act in
pursuance or furtherance of the complicity.[34] The overt act or acts of the accused may consist of
active participation in the actual commission of the crime itself or may consist of moral assistance to
his co-conspirators by moving them to execute or implement the criminal plan. [35]
In the present case, the prosecution failed to prove that petitioner performed any overt act in
furtherance of the alleged conspiracy. As testified to by the lone prosecution witness, complainant
Alfredo Oculam, petitioner was merely present when her husband, Adronico, signed the check subject
of Criminal Case No. 7068.[36] With respect to Criminal Case Nos. 7069-7070, Oculam also did not
describe the details of petitioners participation. He did not specify the nature of petitioners
involvement in the commission of the crime, either by a direct act of participation, a direct inducement
of her co-conspirator, or cooperating in the commission of the offense by another act without which it
would not have been accomplished. Apparently, the only semblance of overt act that may be
attributed to petitioner is that she was present when the first check was issued. However, this
inference cannot be stretched to mean concurrence with the criminal design.
Conspiracy must be established, not by conjectures, but by positive and conclusive evidence.
Conspiracy transcends mere companionship and mere presence at the scene of the crime does
not in itself amount to conspiracy.[38] Even knowledge, acquiescence in or agreement to cooperate, is
not enough to constitute one as a party to a conspiracy, absent any active participation in the
commission of the crime with a view to the furtherance of the common design and purpose. [39]
[37]

As the Court eloquently pronounced in a case of recent vintage, People vs. Mandao:[40]

To be sure, conspiracy is not a harmless innuendo to be taken lightly or accepted at every turn. It is
a legal concept that imputes culpability under specific circumstances; as such, it must be
established as clearly as any element of the crime. Evidence to prove it must be positive and
convincing, considering that it is a convenient and simplistic device by which the accused may be
ensnared and kept within the penal fold.
Criminal liability cannot be based on a general allegation of conspiracy, and a judgment of
conviction must always be founded on the strength of the prosecutions evidence. The Court ruled
thus in People v. Legaspi, from which we quote:

At most, the prosecution, realizing the weakness of its evidence against accused-appellant Franco,
merely relied and pegged the latters criminal liability on its sweeping theory of conspiracy, which
to us, was not attendant in the commission of the crime.
The rule is firmly entrenched that a judgment of conviction must be predicated on the strength of
the evidence for the prosecution and not on the weakness of the evidence for the defense. The proof
against him must survive the test of reason; the strongest suspicion must not be permitted to sway
judgment. The conscience must be satisfied that on the defense could be laid the responsibility for
the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is
required then is moral certainty.
Verily, it is the role of the prosecution to prove the guilt of the appellant beyond reasonable doubt in
order to overcome the constitutional presumption of innocence.
In sum, conviction must rest on hard evidence showing that the accused is guilty beyond reasonable
doubt of the crime charged. In criminal cases, moral certainty -- not mere possibility -- determines
the guilt or the innocence of the accused. Even when the evidence for the defense is weak, the
accused must be acquitted when the prosecution has not proven guilt with the requisite quantum of
proof required in all criminal cases.(Citations omitted)[41]
All told, the prosecution failed to establish the guilt of the petitioner with moral certainty. Its
evidence falls short of the quantum of proof required for conviction. Accordingly, the constitutional
presumption of the petitioners innocence must be upheld and she must be acquitted.
WHEREFORE, the instant petition is GRANTED. The assailed Decision, dated May 17, 1999, of
the Court of Appeals in CA-G.R. CR No. 20443 affirming the Decision, dated August 24, 1996, of the
Regional Trial Court (Branch 3), Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting the
petitioner of violation of B.P. Blg. 22 is hereby REVERSED and SET ASIDE. Petitioner Evangeline
Ladonga is ACQUITTED of the charges against her under B.P. Blg. 22 for failure of the prosecution to
prove her guilt beyond reasonable doubt. No pronouncement as to costs.
SO ORDERED.
Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 93028 July 29, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARTIN SIMON y SUNGA, respondent.
The Solicitor General for plaintiff-appellee.
Ricardo M.Sampang for accused-appellant.

REGALADO, J.:
Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a violation of Section 4,
Article II of Republic Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment alleging that on
or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of marijuana to a
Narcotics Command (NARCOM) poseur-buyer in consideration of the sum of P40.00, which tea bags, when
subjected to laboratory examination, were found positive for marijuana. 1
Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his escape from
Camp Olivas, San Fernando, Pampanga where he was temporarily detained, 2 he pleaded not guilty. He voluntarily
waived his right to a pre-trial conference, 3 after which trial on the merits ensued and was duly concluded.
I
The evidence on record shows that a confidential informant, later identified as a NARCOM operative, informed the
police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a certain "Alyas Pusa" at Sto.
Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding Officer of the 3rd Narcotics Regional Unit in
the camp, then formed a buy-bust team composed of Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and
Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante, the team,
together with their informant, proceeded to Sto. Cristo after they had coordinated with the police authorities
andbarangay officers thereof. When they reached the place, the confidential informer pointed out appellant to Lopez
who consequently approached appellant and asked him if he had marijuana. Appellant answered in the affirmative
and Lopez offered to buy two tea bags. Appellant then left and, upon returning shortly thereafter, handed to Lopez

two marijuana tea bags and Lopez gave him the marked money amounting to P40.00 as payment. Lopez then
scratched his head as a
pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and the team closed
in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested appellant. The latter was then
brought by the team to the 3rd Narcotics Regional Unit at Camp Olivas on board a jeep and he was placed under
custodial investigation, with Sgt. Pejoro as the investigator. 4
Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between Lopez and the
appellant. He also averred that he was the one who confiscated the marijuana and took the marked money from
appellant. 5
Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was stationed
farthest from the rest of the other members, that is, around two hundred meters away from his companions. He did
not actually see the sale that transpired between Lopez and appellant but he saw his teammates accosting
appellant after the latter's arrest. He was likewise the one who conducted the custodial investigation of appellant
wherein the latter was apprised of his rights to remain silent, to information and to counsel. Appellant, however,
orally waived his right to counsel. 6
Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which appellant
signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his possession. Pejoro
likewise informed the court below that, originally, what he placed on the receipt was that only one marijuana leaf was
confiscated in exchange for P20.00. However, Lopez and Villaruz corrected his entry by telling him to put "two",
instead of "one" and "40", instead of "20". He agreed to the correction since they were the ones who were
personally and directly involved in the purchase of the marijuana and the arrest of appellant. 7
Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day after the latter's
apprehension, and the results were practically normal except for his relatively high blood pressure. The doctor also
did not find any trace of physical injury on the person of appellant. The next day, he again examined appellant due
to the latter's complaint of
gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a history of peptic
ulcer, which causes him to experience abdominal pain and consequently vomit blood. In the afternoon, appellant
came back with the same complaint but, except for the gastro-intestinal pain, his physical condition remained
normal. 8
As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day in question, at
around 4:30 p.m., he was watching television with the members of his family in their house when three persons,
whom he had never met before suddenly arrived. Relying on the assurance that they would just inquire about
something from him at their detachment, appellant boarded a jeep with them. He was told that they were going to
Camp Olivas, but he later noticed that they were taking a different route. While on board, he was told that he was a
pusher so he attempted to alight from the jeep but he was handcuffed instead. When they finally reached the camp,
he was ordered to sign some papers and, when he refused, he was boxed in the stomach eight or nine times by
Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the documents presented to him. He
denied knowledge of the P20.00 or the dried marijuana leaves, and insisted that the twenty-peso bill came from the
pocket of Pejoro. Moreover, the reason why he vomited blood was because of the blows he suffered at the hands of
Pejoro. He admitted having escaped from the NARCOM office but claimed that he did so since he could no longer
endure the maltreatment to which he was being subjected. After escaping, he proceeded to the house of his uncle,
Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m. There, he consulted a
quack doctor and, later, he was accompanied by his sister to the Romana Pangan District Hospital at Floridablanca,
Pampanga where he was confined for three days. 9
Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at Floridablanca, Pampanga
after undergoing abdominal pain and vomiting of blood. He likewise confirmed that appellant had been suffering
from peptic ulcer even before the latter's arrest. 10 Also, Dr. Evelyn Gomez-Aguas, a resident physician of Romana
Pangan District Hospital, declared that she treated appellant for three days due to abdominal pain, but her examination
revealed that the cause for this ailment was appellant's peptic ulcer. She did not see any sign of slight or serious external
injury, abrasion or contusion on his body. 11
On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment convicting appellant
for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty
of life imprisonment, to pay a fine of twenty thousand pesos and to pay the costs. The four tea bags of marijuana
dried leaves were likewise ordered confiscated in favor of the Government. 12
Appellant now prays the Court to reverse the aforementioned judgment of the lower court, contending in his
assignment of errors that the latter erred in (1) not upholding his defense of "frame-up", (2) not declaring Exhibit "G"

(Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3) convicting him of a violation of the
Dangerous Drugs Act. 13
At the outset, it should be noted that while the People's real theory and evidence is to the effect the appellant
actually sold only two tea bags of marijuana dried leaves, while the other two tea bags were merely confiscated
subsequently from his possession, 14 the latter not being in any way connected with the sale, the information alleges that
he sold and delivered four tea bags of marijuana dried leaves. 15 In view thereof, the issue presented for resolution in this
appeal is merely the act of selling the two tea bags allegedly committed by appellant, and does not include the disparate
and distinct issue of illegal possession of the other two tea bags which separate offense is not charged herein. 16
To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably established. 17 To sell
means to give, whether for money or any other material consideration. 18 It must, therefore, be established beyond doubt
that appellant actually sold and delivered two tea bags of marijuana dried leaves to Sgt. Lopez, who acted as the poseurbuyer, in exchange for two twenty-peso bills.
After an assiduous review and calibration of the evidence adduced by both parties, we are morally certain that
appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The prosecution was able
to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two tea bags of marijuana dried
leaves to Sgt. Lopez. The latter himself creditably testified as to how the sale took place and his testimony was
amply corroborated by his teammates. As between the straightforward, positive and corroborated testimony of
Lopez and the bare denials and negative testimony of appellant, the former undeniably deserves greater weight and
is more entitled to credence.
We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is susceptible
to mistake, harassment, extortion and abuse. 19 Nonetheless, such causes for judicial apprehension and doubt do not
obtain in the case at bar. Appellant's entrapment and arrest were not effected in a haphazard way, for a surveillance was
conducted by the team before the
buy-bust operation was effected. 20 No ill motive was or could be attributed to them, aside from the fact that they are
presumed to have regularly performed their official duty. 21 Such lack of dubious motive coupled with the presumption of
regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, should
prevail over the self-serving and uncorroborated claim of appellant of having been framed, 22 erected as it is upon the mere
shifting sands of an alibi. To top it all, appellant was caught
red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert the charge, he does
not appear to have plausibly done so.
When the drug seized was submitted to the Crime Laboratory Service of the then Philippine ConstabularyIntegrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn Salangad, a forensic chemist
therein, 23 confirmed in her Technical Report No. NB-448-88 that the contents of the four tea bags confiscated from
appellant were positive for and had a total weight of 3.8 grams of marijuana. 24 Thus, the corpus delicti of the crime had
been fully proved with certainty and conclusiveness. 25
Appellant would want to make capital of the alleged inconsistencies and improbabilities in the testimonies of the
prosecution witnesses. Foremost, according to him, is the matter of who really confiscated the marijuana tea bags
from him since, in open court, Pejoro asserted that he had nothing to do with the confiscation of the marijuana, but
in the aforementioned "Receipt of Property Seized/Confiscated," he signed it as the one who seized the same. 26
Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really matter since such
is not an element of the offense with which appellant is charged. What is unmistakably clear is that the marijuana
was confiscated from the possession of appellant. Even, assuming arguendo that the prosecution committed an
error on who actually seized the marijuana from appellant, such an error or discrepancy refers only to a minor
matter and, as such, neither impairs the essential integrity of the prosecution evidence as a whole nor reflects on
the witnesses' honesty. 27 Besides, there was clearly a mere imprecision of language since Pejoro obviously meant that
he did not take part in the physical taking of the drug from the person of appellant, but he participated in the legalseizure
or confiscation thereof as the investigator of their unit.
Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were not powdered
for finger-printing purposes contrary to the normal procedure in buy-bust operations. 28 This omission has been
satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows:
Q: Is it the standard operating procedure of your unit that in conducting such
operation you do not anymore provide a powder (sic) on the object so as to
determine the thumbmark or identity of the persons taking hold of the object?
A: We were not able to put powder on these denominations because we are lacking
that kind of material in our office since that item can be purchased only in Manila and
only few are producing that, sir.

xxx xxx xxx

Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS, as well as
the office of NICA?
A: Our office is only adjacent to those offices but we cannot make a request for that
powder because they, themselves, are using that in their own work, sir. 29
The foregoing explanation aside, we agree that the failure to mark the money bills used for entrapment purposes
can under no mode of rationalization be fatal to the case of the prosecution because the Dangerous Drugs Act
punishes "any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute,
dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions." 30 The dusting
of said bills with phosphorescent powder is only an evidentiary technique for identification purposes, which identification
can be supplied by other species of evidence.
Again, appellant contends that there was neither a relative of his nor any barangay official or civilian to witness the
seizure. He decries the lack of pictures taken before, during and after his arrest. Moreover, he was not reported to or
booked in the custody of any barangay official or police authorities. 31 These are absurd disputations. No law or
jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a relative, a barangay official or any other
civilian, or be accompanied by the taking of pictures. On the contrary, the police enforcers having caught appellant
inflagrante delicto, they were not only authorized but were also under the obligation to effect a warrantless arrest and
seizure.
Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in connection with his
apprehension. Said Booking Sheet and Arrest Report 32 states, inter alia, that "suspect was arrested for selling two tea
bags of suspected marijuana dried leaves and the confiscation of another two tea bags of suspected marijuana dried
leaves." Below these remarks was affixed appellant's signature. In the same manner, the receipt for the seized property,
hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of the marked bills from
him. 33
However, we find and hereby declare the aforementioned exhibits inadmissible in evidence. Appellant's
conformance to these documents are declarations against interest and tacit admissions of the crime charged. They
were obtained in violation of his right as a person under custodial investigation for the commission of an offense,
there being nothing in the records to show that he was assisted by counsel. 34 Although appellant manifested during
the custodial investigation that he waived his right to counsel, the waiver was not made in writing and in the presence of
counsel, 35 hence whatever incriminatory admission or confession may be extracted from him, either verbally or in writing,
is not allowable in evidence. 36 Besides, the arrest report is self-serving and hearsay and can easily be concocted to
implicate a suspect.
Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated from his
predicament since his criminal participation in the illegal sale of marijuana has been sufficiently proven. The
commission of the offense of illegal sale of prohibited drugs requires merely the consummation of the selling
transaction 37 which happens the moment the buyer receives the drug from the seller. 38 In the present case, and in light of
the preceding discussion, this sale has been ascertained beyond any peradventure of doubt.
Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger. 39 We take this
opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a small scale as in this case,
belongs to that class of crimes that may be committed at any time and in any place. 40 It is not contrary to human
experience for a drug pusher to sell to a total stranger, 41 for what matters is not an existing familiarity between the buyer
and seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves. 42 While there may
be instances where such sale could be improbable, taking into consideration the diverse circumstances of person, time
and place, as well as the incredibility of how the accused supposedly acted on that occasion, we can safely say that those
exceptional particulars are not present in this case.
Finally, appellant contends that he was subjected to physical and mental torture by the arresting officers which
caused him to escape from Camp Olivas the night he was placed under custody. 43 This he asserts to support his
explanation as to how his signatures on the documents earlier discussed were supposedly obtained by force and
coercion.
The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must not only
proceed from the mouth of a credible witness but must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances. 44 The evidence on record is bereft of any
support for appellant's allegation of maltreatment. Two doctors, one for the prosecution 45 and the other for the
defense,46 testified on the absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the person
of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which he had been suffering
even before his arrest. 47 His own brother even corroborated that fact, saying that appellant has had a history of bleeding
peptic ulcer. 48

Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for not
divulging the same to his brother who went to see him at the camp after his arrest and during his detention
there.49 Significantly, he also did not even report the matter to the authorities nor file appropriate charges against the
alleged malefactors despite the opportunity to do so 50 and with the legal services of counsel being available to him. Such
omissions funnel down to the conclusion that appellant's story is a pure fabrication.
These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless and
premeditated for the NARCOM agents were determined to arrest him at all costs. 51 Premeditated or not, appellant's
arrest was only the culmination, the final act needed for his isolation from society and it was providential that it came
about after he was caught in the very act of illicit trade of prohibited drugs. Accordingly, this opinion could have concluded
on a note of affirmance of the judgment of the trial court. However, Republic Act No. 6425, as amended, was further
amended by Republic Act No. 7659 effective December 31, 1993, 52 which supervenience necessarily affects the original
disposition of this case and entails additional questions of law which we shall now resolve.
II
The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to this effect:
Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended, known as the
Dangerous Drugs Act of 1972, are hereby amended to read as follows:
xxx xxx xxx
Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited
Drugs. The penalty of reclusion perpetua to death and a fine ranging from five
hundred thousand pesos to ten million pesos shall be imposed upon any person
who, unless authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker
in any of such transactions.
xxx xxx xxx
Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous
Drugs Act of 1972, is hereby amended to read as follows:
Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or
Instrument of the Crime. The penalties for offenses under Sections 3, 4, 7, 8 and 9
of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if
the dangerous drugs involved is in any of the following quantities:
xxx xxx xxx
5. 750 grams or more of indian hemp or marijuana
xxx xxx xxx
Otherwise, if the quantity involved is less than the foregoing quantities, the penalty
shall range from prision correccional to reclusion perpetua depending upon the
quantity.
1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a total weight
of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those tea bags, the initial inquiry
would be whether the patently favorable provisions of Republic Act
No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder, pursuant to
Article 22 of the Revised Penal Code.
Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in substitution of the
previous Articles 190 to 194 of the Revised Penal Code, 53 it has long been settled that by force of Article 10 of said
Code the beneficient provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes punished
by special laws. 54 The execution in said article would not apply to those convicted of drug offenses since habitual
delinquency refers to convictions for the third time or more of the crimes of serious or less serious physical injuries, robo,
hurto, estafa or falsification. 55
Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been involved nor
invoked in the present case, a corollary question would be whether this court, at the present stage, can

sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant. That issue has
likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:
. . . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal
laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if
the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the
accused has applied for it, just as would also all provisions relating to the prescription of the crime
and the penalty.
If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659
has already become final and executory or the accused is serving sentence thereunder, then practice, procedure
and pragmatic considerations would warrant and necessitate the matter being brought to the judicial authorities for
relief under a writ of habeas corpus. 56
2. Probably through oversight, an error on the matter of imposable penalties appears to have been committed in the
drafting of the aforesaid law; thereby calling for and necessitating judicial reconciliation and craftsmanship.
As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes the penalty
of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall
unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That
penalty, according to the amendment to Section 20 of the law, shall be applied if what is involved is 750 grams or
more of indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision
correccional to reclusion perpetua depending upon the quantity.
In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of
its dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and also as
the minimum of the penalty where the marijuana involved is 750 grams or more. The same error has been
committed with respect to the other prohibited and regulated drugs provided in said Section 20. To harmonize such
conflicting provisions in order to give effect to the whole law, 57 we hereby hold that the penalty to be imposed where the
quantity of the drugs involved is less than the quantities stated in the first paragraph shall range fromprision
correccional to reclusion temporal, and not reclusion perpetua. This is also concordant with the fundamental rule in
criminal law that all doubts should be construed in a manner favorable to the accused.
3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the imposable
range of penalties under the second paragraph of Section 20, as now modified, the law provides that the penalty
shall be taken from said range "depending upon the quantity" of the drug involved in the case. The penalty in said
second paragraph constitutes a complex one composed of three distinct penalties, that is, prision
correccional,prision mayor, and reclusion temporal. In such a situation, the Code provides that each one shall form a
period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum
period. 58
Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances determine which
period of such complex penalty
shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is its specific
mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug subject of the criminal
transaction. 59 Accordingly, by way of exception to Article 77 of the Code and to subserve the purpose of Section 20 of
Republic Act No. 7659, each of the aforesaid component penalties shall be considered as a principal imposable penalty
depending on the quantity of the drug involved. Thereby, the modifying circumstances will not altogether be disregarded.
Since each component penalty of the total complex penalty will have to be imposed separately as determined by the
quantity of the drug involved, then the modifying circumstances can be used to fix the proper period of that component
penalty, as shall hereafter be explained.
It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid disposition thereon
that, unless there are compelling reasons for a deviation, the quantities of the drugs enumerated in its second
paragraph be divided into three, with the resulting quotient, and double or treble the same, to be respectively the
bases for allocating the penalty proportionately among the three aforesaid periods according to the severity thereof.
Thus, if the marijuana involved is below 250 grams, the penalty to be imposed shall be prision correccional; from
250 to 499 grams, prision mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the penalty is
reclusion perpetua to death. 60
Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of prision
correccional is consequently indicated but, again, another preliminary and cognate issue has first to be resolved.

4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it consists of
three periods as provided in the text of and illustrated in the table provided by Article 76 of the Code. The question is
whether or not in determining the penalty to be imposed, which is here to be taken from the penalty ofprision
correccional, the presence or absence of mitigating, aggravating or other circumstances modifying criminal liability
should be taken into account.
We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses under special
laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code cannot and should not be
applied. A review of such doctrines as applied in said cases, however, reveals that the reason therefor was because
the special laws involved provided their own specific penalties for the offenses punished thereunder, and which
penalties were not taken from or with reference to those in the Revised Penal Code. Since the penalties then
provided by the special laws concerned did not provide for the minimum, medium or maximum periods, it would
consequently be impossible to consider the aforestated modifying circumstances whose main function is to
determine the period of the penalty in accordance with the rules in Article 64 of the Code.
This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation of
penalties by degrees could not be given supplementary application to special laws, since the penalties in the latter
were not components of or contemplated in the scale of penalties provided by Article 71 of the former. The
suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former, cannot be
invoked where there is a legal or physical impossibility of, or a prohibition in the special law against, such
supplementary application.
The situation, however, is different where although the offense is defined in and ostensibly punished under a special
law, the penalty therefor is actually taken from the Revised Penal Code in its technical nomenclature and,
necessarily, with its duration, correlation and legal effects under the system of penalties native to said Code. When,
as in this case, the law involved speaks of prision correccional, in its technical sense under the Code, it would
consequently be both illogical and absurd to posit otherwise. More on this later.
For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, as amended by
Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof pursuant to Article 64 of
the Revised Penal Code, there being no attendant mitigating or aggravating circumstance.
5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed for offenses
under special laws would be necessary.
Originally, those special laws, just as was the conventional practice in the United States but differently from the
penalties provided in our Revised Penal Code and its Spanish origins, provided for one specific penalty or a range
of penalties with definitive durations, such as imprisonment for one year or for one to five years but without division
into periods or any technical statutory cognomen. This is the special law contemplated in and referred to at the time
laws like the Indeterminate Sentence Law 61 were passed during the American regime.
Subsequently, a different pattern emerged whereby a special law would direct that an offense thereunder shall be
punished under the Revised Penal Code and in the same manner provided therein. Inceptively, for instance,
Commonwealth Act No. 303 62 penalizing non-payment of salaries and wages with the periodicity prescribed therein,
provided:
Sec. 4. Failure of the employer to pay his employee or laborer as required by section one of this Act,
shall prima facie be considered a fraud committed by such employer against his employee or laborer
by means of false pretenses similar to those mentioned in article three hundred and fifteen,
paragraph four, sub-paragraph two (a) of the Revised Penal Code and shall be punished in the
same manner as therein provided. 63
Thereafter, special laws were enacted where the offenses defined therein were specifically punished by the
penalties as technically named and understood in the Revised Penal Code. These are exemplified by Republic Act
No. 1700 (Anti-Subversion Act) where the penalties ranged from arresto mayor to
death; 64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto mayor to prision
mayor; and Presidential Decree
No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor may involve prision
mayor, reclusion temporal, reclusion perpetua or death.
Another variant worth mentioning is Republic Act No. 6539
(Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8 months and not
more than 17 years and 4 months, when committed without violence or intimidation of persons or force upon things;
not less than 17 years and 4 months and not more than 30 years, when committed with violence against or

intimidation of any person, or force upon things; and life imprisonment to death, when the owner, driver or occupant
of the carnapped vehicle is killed.
With respect to the first example, where the penalties under the special law are different from and are without
reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules for the
application of penalties under said Code or by other relevant statutory provisions based on or applicable only to said
rules for felonies under the Code. In this type of special law, the legislative intendment is clear.
The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true that the
penalty of 14 years and
8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion
temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides,
the other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to
those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539
and special laws of the same formulation.
On the other hand, the rules for the application of penalties and the correlative effects thereof under the Revised
Penal Code, as well as other statutory enactments founded upon and applicable to such provisions of the Code,
have suppletory effect to the penalties under the former Republic Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are special laws,
the fact that the penalties for offenses thereunder are those provided for in the Revised Penal code lucidly reveals
the statutory intent to give the related provisions on penalties for felonies under the Code the corresponding
application to said special laws, in the absence of any express or implicit proscription in these special laws. To hold
otherwise would be to sanction an indefensible judicial truncation of an integrated system of penalties under the
Code and its allied legislation, which could never have been the intendment of Congress.
In People vs. Macatanda, 65 a prosecution under a special law (Presidential Decree No. 533, otherwise known as the
Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that Article 64, paragraph 5, of the Revised Penal
Code should not apply to said special law. We said therein that
We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct from and
unrelated to the Revised Penal Code. From the nature of the penalty imposed which is in terms of
the classification and duration of penalties as prescribed in the Revised Penal Code, which is not for
penalties as are ordinarily imposed in special laws, the intent seems clear that P.D. 533 shall be
deemed as an amendment of the Revised Penal Code, with respect to the offense of theft of large
cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such as Article 104 of the
Revised Penal Code . . . . Article 64 of the same Code should, likewise, be applicable, . . . .
(Emphasis supplied.)
More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal Code to Republic
Act No. 6425, in this case involving Article 63(2) of the Code, we have this more recent pronouncement:
. . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code shall be
"supplementary" to special laws, this Court held that where the special law expressly grants to the
court discretion in applying the penalty prescribed for the offense, there is no room for the
application of the provisions of the Code . . . .
The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit grant of
discretion to the Court in the application of the penalty prescribed by the law. In such case, the court
must be guided by the rules prescribed by the Revised Penal Code concerning the application of
penalties which distill the "deep legal thought and centuries of experience in the administration of
criminal laws." (Emphasis ours.) 66
Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by Republic Act No.
7659 by the incorporation and prescription therein of the technical penalties defined in and constituting integral parts
of the three scales of penalties in the Code, 67 with much more reason should the provisions of said Code on the
appreciation and effects of all attendant modifying circumstances apply in fixing the penalty. Likewise, the different
kinds or classifications of penalties and the rules for graduating
such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if they would result
in absurdities as will now be explained.
While not squarely in issue in this case, but because this aspect is involved in the discussion on the role of
modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances should be
considered and applied only if they affect the periods and the degrees of the penalties within rational limits.

Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the penalty, in
accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71, are the stage of
execution of the crime and the nature of the participation of the accused. However, under paragraph 5 of Article 64,
when there are two or more ordinary mitigating circumstances and no aggravating circumstance, the penalty shall
be reduced by one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and
68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68
should not apply in toto in the determination of the proper penalty under the aforestated second paragraph of
section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been contemplated by the
legislature.
Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not specially
provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy therewith. Hence, when
the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the penalty
next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. If
this rule were to be applied, and since the complex penalty in this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto
menor,destierro and arresto mayor. There could, however, be no further reduction by still one or two degrees, which
must each likewise consist of three penalties, since only the penalties of fine and public censure remain in the scale.
The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the
corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties
reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three
component penalties in the second paragraph of Section 20 shall each be considered as an independent principal
penalty, and that the lowest penalty should in any event be prision correccional in order not to depreciate the
seriousness of drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be
adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution cannot be forged
from an imperfect law, which impasse should now be the concern of and is accordingly addressed to Congress.
6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us.
Apparently it does, since drug offenses are not included in nor has appellant committed any act which would put him
within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death,
provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. 68 The more
important aspect, however, is how the indeterminate sentence shall be ascertained.
It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised
Penal Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same." We hold that this quoted portion of the
section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is
without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said
that the "offense is punished" under that law.
There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special
laws was necessary because of the nature of the former type of penalties under said laws which were not included
or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the
range of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. In
the illustrative examples of penalties in special laws hereinbefore provided, this rule applied, and would still apply,
only to the first and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this
holding is but an application and is justified under the rule of contemporanea expositio. 69
We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the
penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects.
In fact, for purposes of determining the maximum of said sentence, we
have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article 64 of
the Code to impose the same in the medium period. Such offense, although provided for in a special law, is now in
effect punished by and under the Revised Penal Code. Correlatively, to determine the minimum, we must apply the
first part of the aforesaid Section 1 which directs that "in imposing a prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of said Code, and the minimum which shall be within the range of thepenalty next lower to
that prescribed by the Code for the offense." (Emphasis ours.)
A divergent pedantic application would not only be out of context but also an admission of the hornbook maxim
that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its construction of

Act. No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof
excepting from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we
have held that what is considered is the penalty actually imposed and not the penalty imposable under the law, 70 and
that reclusion perpetua is likewise embraced therein although what the law states is "life imprisonment".
What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the principles
of literal interpretation, which have been rationalized by comparative decisions of this Court; of historical
interpretation, as explicated by the antecedents of the law and related contemporaneous legislation; and of
structural interpretation, considering the interrelation of the penalties in the Code as supplemented by Act No. 4103
in an integrated scheme of penalties, it follows that the minimum of the indeterminate sentence in this case shall be
the penalty next lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in
Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation. 71
The indeterminate Sentence Law is a legal and social measure of compassion, and should be liberally interpreted in
favor of the accused. 72 The "minimum" sentence is merely a period at which, and not before, as a matter of grace and
not of right, the prisoner may merely be allowed to serve the balance of his sentence outside of his confinement. 73 It does
not constitute the totality of the penalty since thereafter he still has to continue serving the rest of his sentence under set
conditions. That minimum is only the period when the convict's eligibility for parole may be considered. In fact, his release
on parole may readily be denied if he is found unworthy thereof, or his reincarceration may be ordered on legal grounds,
even if he has served the minimum sentence.
It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit of a minimum
sentence within the range of arresto mayor, the penalty next lower to prision correccional which is the maximum
range we have fixed through the application of Articles 61 and 71 of the Revised Penal Code. For, with fealty to the
law, the court may set the minimum sentence at 6 months of arresto mayor, instead of 6 months and 1 day of prision
correccional. The difference, which could thereby even involve only one day, is hardly worth the creation of an
overrated tempest in the judicial teapot.
ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court a quo against
accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION that he should be, as he
hereby is, sentenced to serve an indeterminate penalty of six (6) months of arresto mayor, as the minimum, to six
(6) years of prision correccional, as the maximum thereof.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Bellosillo, J., is on leave.