Supreme Court

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION
G.R. Nos. 109614-15 March 29, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADRONICO GREGORIO and RICARDO GREGORIO, defendants-appellants.
KAPUNAN, J.:p The instant appeal seeks the reversal of the joint decision of the Regional Trial Court of Bacolod City, Branch 43, rendered on April 20, 1992, in Criminal Cases Nos. 428 and 6307 finding both appellants guilty beyond reasonable doubt of the crime of murder. The facts of the case as established by the evidence for the prosecution are faithfully summarized in the People's brief, to wit: Around 8:00 o'clock in the evening of May 7, 1986, Carlos Catorse together with his fifteen year old son Romeo Catorse arrived at the house (the house is composed of two storeys) of appellant Adronico Gregorio at Sitio Bug-as, Barangay Sta. Cruz, Murcia, Negros Occidental, to attend the wake of the latter's grandson (TSN, March 24, 1987, pp. 3-4). When Carlos and his son arrived, there were already people attending the wake. Jovito Nicavera, Marcelo Lo and Adronico were conversing downstairs while upstairs, some were playing "pusoy" (russian poker), among them were Jerry Nicavera, Renato Calalas, "Tunggak", (son of Adronico) and Ricardo Gregorio (brother and co-appellant of Adronico). Kibitzing and at times betting in the game were John Villarosa, Remolito Calalas, Carmelo Alubaga and Crispin Calalas (I.D., pp. 5; TSN, May 30, 1989, pp. 12-13). Persons attending the wake were requested by appellant Adronico to deposit with him any weapon in their possession for safekeeping so as to avoid trouble. Complying therewith, Carlos Catorse handed over his "samurai", John Villarosa and Remolito Calalas, their respective knives, to Adronico (TSN, May 30, 1989, pp. 1619; TSN, November 14, 1989, pp. 22-23). Around 1:00 o'clock in the morning of May 8, 1986, while the game of "pusoy" was still in progress, appellant Ricardo, in a very loud voice, reprimanded "Tunggak" from (sic) peeping at the cards of other players. In response, "Tunggak" stood up and also in a very loud voice ordered the game stopped (TSN, May 30, 1989, pp. 25-27; TSN, November 14, 1987, pp. 45-50).
Overhearing the incident, Adronico ordered Tunggak downstairs and right there and then, Adronico scolded and boxed him (Tunggak) several times (TSN, May 30, 1989, pp. 27-30; TSN, November 14, 1989, pp. 51-55). While Adronico was severely beating Tunggak, Carlos Catorse approached and begged Adronico from further hurting his son so as not to put him to shame before the crowd. Carlos was in this act of pacifying the matter between the father and son when suddenly appellant Ricardo stealthily stabbed Carlos from behind with a "samurai" (the same samurai deposited by Carlos to Adronico) and thereafter hacked and stabbed him several times more in different parts of his body. Right after Carlos fell to the ground, Adronico, for his part, repeatedly hacked the victim with a bolo. (TSN, May 30, 1989, pp. 30-31; November 14, 1989, pp. 57-65). Terrified, Romeo Catorse, son of Carlos Catorse, ran out of the house. Jovito Nicavera also tried to get out of the house but Adronico hacked him instead with a bolo hitting his left shoulder. Marcelo Lo tried to help his uncle Jovito but Ricardo, with the same "samurai" used against Carlos hacked him on his forearm. Adronico immediately followed and using a bolo hacked Marcelo on the nape. Although wounded, Marcelo was able to run out of the house but Adronico ran after and overtook him. Adronico then hacked him again. When Ricardo followed the two, the visitors attending the wake scampered out of the house (TSN, May 30, 1989, pp. 4456; TSN, November 14, 1989, pp. 66-77). Later, Romeo Catorse together with his sister and younger brother returned to the house of Adronico where they found their father lying prostrate and dead. Nobody was around. Later on, the family of Jovito Nicavera arrived and brought the latter to a hospital in Bacolod (TSN, March 24, 1987, pp. 8-10). Around 9:00 o'clock of the same morning of May 8, 1987, police authorities arrived at Adronico's place to investigate the killing incident. The bodies of Carlos Catorse and Marcelo Lo were found inside the house and at the yard of Adronico, respectively (TSN, November 14, 1989, pp. 76-78). The investigation revealed that appellants Adronico and Ricardo fled to Sitio Anangge, Barangay Buenavista, Murcia, Negros Occidental, about 4 kilometers away from the situs of the crime. The authorities pursued and succeeded in apprehending the appellants. Appellants were thereafter brought and investigated at Murcia Police Headquarters (TSN, April 5, 1991, pp. 910). The post-mortem examination on the cadaver of the victims reveals that Carlos Catorse sustained twelve hack and four stab wounds while Marcelo Lo sustained six hack wounds. Both victims died of cardio respiratory arrest due to multiple wounds (Exhibits "A", "B", "C" & "D"). 1 Accordingly, an information for the murder of Carlos Catorse was filed against Adronico Gregorio and Ricardo Gregorio before the Regional Trial Court of Negros Occidental, Branch LXII, Bago City. The indictment, docketed as Criminal Case No. 428, reads: That on or about the 8th day of May 1986, in the Municipality of Murcia, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a "samurai" and a bolo, conspiring, confederating and mutually helping each other, with evident premeditation and treachery, and with intent to kill, did then and there, willfully, unlawfully and
feloniously attack, assault, stab and hack one, CARLOS CATORSE y APELYEDO thereby inflicting multiple stab and hack wounds upon the body of the latter, which caused the death of said victim. CONTRARY TO LAW. 2 Upon arraignment, both accused entered separate pleas of "not guilty." 3 Another information for the murder of Marcelo Lo was instituted against Adronico Gregorio, this time, before the Regional Trial Court of Negros Occidental, Branch 43, Bacolod City. Docketed as Criminal Case No. 6307, the accusatory portion of the information reads: That on or about the 8th day of May, 1986, in the Municipality of Murcia, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon, with intent to kill, with evident premeditation and treachery, did then and there, willfully, unlawfully and feloniously attack, assault and hack one MARCELO LO y NICAVERA, thereby inflicting multiple injuries upon the body of the latter which caused the death of the said victim. CONTRARY TO LAW. 4 On arraignment, Adronico Gregorio entered a plea of "not guilty" to the offense charged. 5 Later, the two cases were consolidated and tried jointly by the Regional Trial Court of Negros Occidental, Bacolod City, Branch 43. On April 20, 1992 as aforestated, the trial court rendered a joint decision, the dispositive portion of which reads: WHEREFORE, premises considered, the Court finds and so holds the two (2) accused Adronico Gregorio and Ricardo Gregorio "GUILTY" beyond reasonable doubt as principals of having committed the crime of Murder in Crim. Case No. 428 and hereby sentences each to life imprisonment and to solidarily indemnify the heirs of Carlos Catorse the sum of THIRTY THOUSAND (P30,000.00) PESOS with no subsidiary imprisonment in case of insolvency. In Crim. Case No. 6307 (2292) (sic) the Court finds the same Adronico Gregorio "GUILTY" beyond reasonable doubt of having committed Murder and hereby sentences him to another life imprisonment and to indemnify the heirs of Marcelo Lo the sum of THIRTY THOUSAND (P30,000.00) PESOS with no subsidiary imprisonment in case of insolvency. Further, the two (2) accused shall be credited with the full term of their preventive confinement. No cost. SO ORDERED. 6 Hence, this appeal.
In their brief, appellants raised the following errors, to wit: I THE TRIAL COURT GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE THEORY OF THE PROSECUTION AND IN DISREGARDING THAT OF THE DEFENSE. II THE TRIAL COURT GRAVELY ERRED IN REJECTING APPELLANTS' DEFENSE OF SELF-DEFENSE. III THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THERE EXIST CONSPIRACY AND TREACHERY IN THE CASE AT BAR. IV THE TRIAL COURT GRAVELY ERRED IN FINDING BOTH THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. 7 However, before the Office of the Solicitor General could file its Appellee's Brief, appellant Ricardo Gregorio died on December 12, 1993. Consequently, his criminal liability as well as his civil liability based solely thereon is extinguished. 8 Evidently, this appeal will proceed only with respect to appellant Adronico Gregorio. After a careful perusal and evaluation of the case, this Court is not inclined to disturb the findings and conclusion of the court below, there being no cogent reason therefor. For, aside from the wellsettled rule that the factual findings of the trial judge who had the opportunity to observe the demeanor of the witnesses and assess their credibility is entitled to the highest degree of respect, 9 there appears to be no strong reason to depart from the said doctrine since the decision is fully supported by the evidence on record. Appellant Adronico Gregorio interposed self-defense to exculpate himself from criminal liability. However, the trial court, skeptic of the said plea, rejected the same, reasoning that appellant failed to establish self-defense by clear and convincing evidence. We agree. In numerous cases decided by this Court, the guiding jurisprudential principle has always been that when an accused invokes the justifying circumstance of self-defense, the burden of proof is shifted to him to prove the elements of that claim; otherwise, having admitted the killing, conviction is inescapable. 10 Concomitantly, he must rely on the strength of his own evidence and not on the weakness of the prosecution. 11 Having admitted the killing, appellant has to justify his taking of a life by the exacting standards of the law. It is axiomatic that for self-defense to prosper, the following requisites must concur: (1) there must be unlawful aggression by the victim; (2) that the means employed to prevent or repel such aggression were reasonable; and (3) that there was lack of sufficient provocation on the part of the person defending himself. 12 In the case at bench, appellant's claim of self-defense must fail. For one, the physical evidence tells us a different story. Dr. Emmanuel Boado, the medico-legal officer who conducted the autopsy on
the cadavers of Carlos Catorse and Marcelo Lo, submitted the following post-mortem reports and attested to the veracity and authenticity of the same, thus: Cadaver of Carlos Catorse: EXTERNAL FINDINGS: 1. Hack wound 5 inches long, left temporal going backward with chip fractured (sic) of the skull. 2. Hack wound 8 inches long, from the base of the left Nose going backward below the left ear. 3. Hack wound 7 inches long, neck left side going backward with complete chip fractured (sic) of the fourth vertebrae cutting blood vessels. 4. Stab wound 2 inches wide, 4 inches deep anterior abdomen, below the 10th rib, left side. 5. Stab wound 1 1/2 inches wide, 4 inches deep at the side of the navel left. 6. Hack wound, base of the palm, 3 inches long posterior side, cutting bones. 7. Hack wound, cutting left small finger. 8. Hack wound, 3 inches long upper 3rd right forearm running anteroposteriorly, chip fracture of bones. 9. Hack wound left shoulder back 4 inches long going downward with chip fracture of the shoulder joint. 10. Hack wound 5 inches long posteriorly left joint with chip fracture of the bones. 11. Hack wound 3 inches long posteriorly forearm below the elbow joint chip fracture of the bones. 12. Hack wound 3 inches long middle 3rd forearm, posterior surface, with chip fracture of the bones. 13. Stab wound 4 inches wide left back level of the 11th embracio rib, back side through and through of the level of 12th rib right. 14. Hack wound 2 1/2 inches long with chip fracture of the 11th lobar vertebrae. 15. Hack wound middle right arm posterior side 4 inches long with chip fracture of bone. 16. Stab wound 1 inch wide hitting the vertebral bones, 5th thoracic vertebrae. INTERNAL FINDINGS:
1. Stab wound, liver, large intestine, small intestine. 2. Massive abdominal bleeding. CAUSE OF DEATH: Cardio Respiratory Arrest due to Multiple hack and Stab wounds. 13 Cadaver of Marcelo Lo: EXTERNAL FINDINGS: 1. Hack wound 6 inches long left temporal area going occiput, chip fracture skull. 2. Hack wound, left face going backward base of the skull, brain tissue coming out, with chip fracture of the skull. 3. Hack wound, right 4 inches long right back cutting the scapular bones. 4. Hack wound 6 inches long, with chip fracture of the Vertebrae bones. 5. Hack wound 4 inches long cutting the 1st thoracic rib; scapular bones. 6. Hack wound 4 inches long, below the left scapular bones, cutting ribs. INTERNAL FINDINGS: 1. Cerebral Hemorrhage, Massive 2. Thoracic Hemorrhage, Massive CAUSE OF DEATH: Cardio Respiratory Arrest due to multiple hack wounds. 14 If Adronico Gregorio and Ricardo Gregorio stabbed Carlos Catorse and Marcelo Lo merely to defend themselves, it certainly defies reason why they had to inflict sixteen stab wounds on Carlos and six on Marcelo. The location, number and gravity of the wounds inflicted on the victims belie the appellant's contention that they acted in self-defense. 15 The rule is settled that the nature and extent of the wounds inflicted on a victim negate an accused's claim of self-defense. 16 The futility of invoking self-defense is likewise revealed in the testimonies of accused Ricardo Gregorio and appellant Adronico Gregorio. Ricardo Gregorio testified that at around 9:00 o'clock in the evening of May 7, 1986, Carlos Catorse suddenly kicked, from the outside, the front door of the house of Adronico, then ran towards Eduardo (nephew of Ricardo) and boxed the latter; that he intervened to pacify Carlos but the latter drew his "samurai" and attempted to attack him and Eduardo; that he grappled for possession of the "samurai" and was able to turn its point back to Carlos who was hit in the stomach and then fell on the ground; and thereafter he left the victim, then went home. 17
On his part, appellant Adronico Gregorio declared that at the same time his son, Eduardo, and brother, Ricardo, were being attacked by Carlos, he was in the kitchen preparing food for the people attending the wake of his grandson; that suddenly Marcelo Lo and Jovito Nicavera destroyed the bamboo walls of his kitchen, entered threat and assaulted him; that Marcelo attacked him with a bolo but he was able to parry the latter's hand and the bolo instead landed and struck the wooden rail of the kitchen sink; that Jovito in turn pointed a gun at him but without wasting time, he dislodged the bolo from the wooden rail of the sink and slashed Jovito's hand; that because of the injury sustained, Jovito dropped the gun and ran out of the house; that he turned to Marcelo and struck him with a bolo until the latter fell outside of the kitchen; and that he never knew what happened next to Marcelo until the following morning when he learned that the latter died. 18 Not only are the foregoing declarations incredible and incredulous but are innately false and fatuous. By making said allegations, appellant and deceased accused would want to impress upon this Court that both were able to inflict only a single stab wound on deceased Carlos Catorse and Marcelo Lo. Curiously, however, none of their empty claims could explain the physical evidence and findings of the autopsy reports that Carlos Catorse sustained a total of 16 hack and stab wounds while Marcelo Lo, 6 mortal hack wounds. 19 Moreover, the prosecution witnesses were unanimous in their declaration that it was the appellant and his brother Ricardo who started the skirmish. There was no unlawful aggression on the part of Carlos Catorse who only wanted to help pacify Adronico nor on Marcelo Lo's part, who was only trying to flee from the melee when he was attacked and hacked to death. Likewise extant from the records is the absence of any act on the part of the victims giving sufficient provocation for the attack. Likewise telling is the fact that appellant and his brother fled from their homes soon after the incident instead of reporting the matter to the police. Their flight negates self-defense and indicates guilt. 20 As we have repeatedly held, flight evidences guilt and a guilty conscience, the same strongly indicates a guilty mind and betrays the existence of a guilty conscience. 21 Appellant also challenges the court a quo's finding that there was conspiracy between his and his brother Ricardo. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. 22 However, direct proof is not essential to prove conspiracy, 23 as it maybe deduced from the mode and manner in which the offense was perpetrated, or inferred from the acts of the accused. 24 Where the acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident, and regardless of the fact, the perpetrators will be liable as principals. 25 In the case at bench, although there is no proof as to a previous agreement by the assailants to commit the crime charged, conspiracy is evident from the manner of its perpetration. 26 After Ricardo lunged at Carlos with a samurai from behind several times, Adronico attacked him in turn with a bolo. Likewise, appellants successively hacked Marcelo using the weapons they used against Carlos. The incident happened in split seconds, so to speak. Under the circumstances, it is evident that Adronico and Ricardo acted in unison and cooperated with each other towards the accomplishment of a common felonious objective. In People v. Regalario 27 cited in People v. Lopez, 28 we held: An indicium of conspiracy is when the acts of the accused are aimed at the same object, one performing one part and another performing another part so as to complete it with a view to the attainment of the same object, and their acts though apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. The
evidence need not establish the actual agreement which shows the pre-conceived plan, motive, interest, or purpose in the commission of the crime; conspiracy is shown by the coordinated acts of the assailants. 29 Certainly, there was conspiracy between the brothers Adronico and Ricardo, and it was not necessary to prove a previous agreement to commit the crime since from their overt acts, it was clear that they acted in concert in the pursuit of their unlawful design or common goal which was to kill the victims. 30 We agree with the trial court that the aggravating circumstance of treachery (alevosia) may be appreciated against the appellants. Treachery exists when an offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend to directly and specially insure its execution, without risk to himself arising from the defense which the offended party might make. 31 In this case, it was clearly established that Ricardo stealthily stabbed Carlos from behind, and repeatedly hacked him in different parts of his body, with a "samurai." As Carlos fell to the ground, Adronico followed suit, repeatedly hacking the victim with a bolo. Though the assault upon Marcelo was preceded by appellants' assault upon Carlos and Jovito, the incident happened in a span of seconds only. Terrified by what he witnessed, Jovito Nicavera tried to run out of the house but Adronico hacked him instead. Instinctively, Marcelo Lo came to help his uncle Jovito but Ricardo followed by Adronico hacked him using the same samurai and bolo they used against Carlos. Defenseless and severely wounded Marcelo tried to run but Adronico finished him off by more mortal hacks. From all indications; the mode of attack adopted by the appellant and his brother qualifies the killing to murder as the same rendered the victims who were unarmed at that time defenseless and helpless, without any opportunity to defend themselves from their assailants' unreasonable and unexpected assault. The attack was sudden and was specially employed by the assailants to insure the execution of the said crime without risk to themselves arising from the defense which the victims might make. Indeed, the use against Carlos Catorse and Marcelo Lo of the "samurai" and "bolo", both deadly weapons, the traitorous manner in which they were assaulted, and the number of wounds inflicted on them, all demonstrate a deliberate, determined assault with intent to kill. Appellant is guilty of murder. Some last notes. The fallo of the assailed decision sentences the appellant to suffer the penalty of "life imprisonment" and to indemnify t he heirs of Carlos Catorse and Marcelo Lo the sum of P30,000.00 each. The correct penalty, however, should be reclusion perpetua in accordance with Article 248 of the Revised Penal Code. As we have held time and again, life imprisonment and reclusion perpetua are different and distinct from each other. In People v. Ruelan, 32 we outlined the distinction thusly: As noted from the dispositive portion of the assailed decision, the trial court imposed the penalty of life imprisonment for the crime of murder. Evidently, the said court failed to appreciate the substantial difference between Reclusion Perpetua under the Revised Penal Code and Life Imprisonment when imposed as a penalty by special law. These two penalties are different and distinct from each other. Hence, we would like to reiterate our admonition in the case of People v. Penillos, likewise quoted under Administrative Circular No. 6-A-92 amending Administrative Circular No. 6-92 dated October 12, 1992 re: the correct application of the penalties of reclusion perpetua and life imprisonment, thus:
As noted from the dispositive portion of the challenged decision, the trial court imposed the penalty of "reclusion perpetua or life imprisonment." Evidently, it considered the latter as the English translation of the former, which is not the case. Both are different and distinct penalties. In the recent case of People v. Baguio, this Court held: The Code does not prescribe the penalty of "life imprisonment" for any of the felonies therein defined, that penalty being invariably imposed for serious offenses penalized not by the Revised Penal Code but by special laws. Reclusion perpetua entails imprisonment for at least thirty (30) years after which the convict becomes eligible for pardon, it also carries with it accessory penalties, namely: perpetual special disqualification, etc. It is not the same as "life imprisonment" which, for one thing, does not "carry with it any accessory penalty, and for another, does not appear to have any definite extent or duration." As early as 1948, in People vs. Mobe, reiterated in People vs. Pilones, and in the concurring opinion of Justice Ramon Aquino in People vs. Sumadic, this Court already made it clear that reclusion perpetua, is not the same as imprisonment for life or life imprisonment. Every judge should take note of the distinction and this Court expects that, henceforth, no trial judge should mistake one for the other. 33 Finally, conformably with the stated policy of this Court and pursuant to People v. Sison, 34 the civil indemnity for the death of a victim is increased to P50,000.00. Consequently, the heirs of Carlos Catorse and Marcelo Lo are entitled to P50,000.00 each. WHEREFORE, except for the modification that appellant Adronico Gregorio is to suffer the penalty of reclusion perpetua and to indemnify the heirs of Carlos Catorse and Marcelo Lo the sum of P50,000.00 each, the judgment appealed from is hereby AFFIRMED in all respects. As aforestated, the death of Ricardo Gregorio extinguished both his criminal and civil liability arising from said crime. SO ORDERED. Padilla, Bellosillo, Vitug and Hermosisima, Jr., JJ., concur. Footnotes 1 Appellee's Brief, pp. 2-7; Rollo, pp. 99-104. 2 Original Records of Criminal Case No. 428, p. 14. 3 Id., at 24. 4 Original Records of Criminal Case No. 6307, p. 22. 5 Id., at 28. 6 Decision, pp. 10-11; Original Records, pp. 243-244. 7 Appellants' Brief, p. 1; Rollo, p. 46.
8 Pursuant to the doctrine laid down in People v. Bayotas, 236 SCRA 239 [1994], it was held that upon the death of the accused pending appeal of his conviction, the criminal action against him is extinguished inasmuch as there is no longer a defendant to stand as the accused; the civil action instituted therein for recovery of civil liability ex delicto is ipso facto extinguished, grounded as it were on the criminal action. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION
G.R. No. 108871 November 19, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERRY BALLABARE and EDER BALLABARE, accused-appellant.
MENDOZA, J.: This is an appeal brought by Gerry Ballabare from the Decision rendered on May 14, 1992 in two Criminal Cases (Nos. 9067 and 9071) by the Regional Trial Court, Branch 50, Palawan and Puerto Princesa City, the dispositive portion of which reads: WHEREFORE AND IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered finding the accused Gerry Ballabare guilty beyond reasonable doubt as principal in Criminal Case No. 9067 for the murder of Juan and Leonardo both surnamed Tacadao, as the same is defined and penalized under the Revised Panal Code, sentencing said accused to suffer two penalties or reclusion perpetua as well as to pay the costs. He is furthermore ordered to indemnify the heirs of the two deceased victims the sum of One Hundred Thousand (P100,000.00) Pesos as and for their deaths and the further sum of One Hundred Thousand Pesos (P100,000.00) as and for moral damages. Let the case against accused Eder Ballabare be as it is hereby ordered archived to be reinstated in the docket of the Court as soon as he shall have been arrested or surrendered himself to the jurisdiction of the Court. In Criminal Case No. 9071, judgment is hereby rendered finding said accused Gerry Ballabare guilty beyond reasonable doubt of the Violation of Presidential Decree 1866 sentencing said accused to suffer the penalty of life imprisonment as well as to pay the costs. The case arose from the killing of two brothers, Juan Tacadao and Leonardo Tacadao, Jr., in the afternoon of September 16, 1990, at Sitio Isumbo, Barangay Pulot II, Municipality of Brooke's Point, Province of Palawan. Accused-appellant Gerry Ballabare and his brother,
Eder Ballabare, were charged with double murder with the use of illegally possessed firearms. The information alleged That on or about the 16th day of September 1990, in the afternoon, at Sitio Isumbo, Barangay Pulot II, Municipality of Brooke's Point, Province of Palawan, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating together and mutually helping one another, with evident premeditation and treachery, all armed with firearms and with intent to kill, did then and there, wilfully, unlawfully and feloniously attack, assault and shoot with their firearms JUAN TACADAO and LEONARDO TACADAO, JR., hitting them in the vital parts of their bodies and inflicting upon them the following injuries, to wit: JUAN TACADAO sustained gunshot wound on his head penetrating his brain and LEONARDO TACADAO, JR. suffered gunshot wound on his chest penetrating his heart, all causing hemorrhage and shock which were the direct and immediate cause of the instantaneous death of LEONARDO TACADAO, JR. and JUAN TACADAO who died shortly thereafter at the Brooke's Point District Hospital, Brooke's Point, Palawan. CONTRARY TO LAW and committed with aggravating circumstances to [sic] treachery, all the accused used their firearms, a means of form of executing the crime to insure its execution without risk to themselves from the defense the offended party may offer. In a separate information, Gerry Ballabare was charged with violation of P.D. No. 1866, 1, par, 2. In both cases accused-appellant Gerry Ballabare pleaded not guilty and was thereafter tried. His brother Eder Ballabare has not been arrested and has remained at large. Tessie Asenita was the sole eyewitness for the prosecution. She testified that on September 16, 1990, while she was in the kitchen, she heard a commotion outside. 1 When she stepped out to see what was going on, she saw Edito Ballabare boxing Moreto Miason, a farmhand of her father. Edito had companions, Antonio Ballabare, Henry Fabregas, a certain Wilson and one Busoy. 2 Moreto Miason also had some companions with him namely, Juan and Leonardo Tacadao, who are brothers of this witness. Tessie Asenita said that when her brother Juan Tacadao tried to stop Edito Ballabare from beating up Miason, the group of Edito Ballabare ganged up on Juan Tacadao. Tessie's husband, Roque Asenita, came and his intervention enable Juan and Leonardo to run inside Tessie's house. But Edito's group, by now numbering eleven (11), 3 including the accused Gerry Ballabare and Eder Ballabare, pursued the two brothers and started hurling stones at Tessie's house. 4 When they entered the yard of the witness' house and tried to attack Roque Asenita with a bolo, the two brothers ran towards the back of the house. 5 However, Eder Ballabare was able to catch up with Juan and shot him twice, the first bullet hitting him in the right ear and the second in the forehead. 6 On the other hand, Gerry Ballabare fired at Leonardo, hitting him on the upper left chest. 7 Accused-appellant and his companions then fled. Tessie Asenita claimed that she saw the shooting because it took place at a place within her view two arms length away from her deceased brothers. 8 Two other witnesses were presented by the prosecution, namely Dr. Narciso B. Leoncio, Rural Health Physician, who conducted the post mortem examination on Leonardo Tacadao, Jr., and testified that the fatal wound sustained by deceased was that inflicted on his left chest, 9 and Aida Veloria Magsipoc, NBI forensic chemist, who testified that the examined the paraffin cast of both hands of accused-appellant Gerry Ballabare and found the left hand positive for gunpowder nitrates. 10 A certification 11 from the Firearms and Explosive Unit in
Camp Crame to the effect that accused Gerry Ballabare was not authorized to carry a firearm was likewise submitted to the trial court. Accused-appellant's defense was alibi. He testified that at the time of the incident, he was inside his yard playing basketball with some friends. 12 Evelyn Alcantara, a resident of another sitio, corroborated accused-appellant's claim. 13 In addition, the defense submitted to the court an Affidavit 14 for the withdrawal of the testimony of eyewitness Tessie Asenita and the Affidavit of Desistance 15 of Leonardo Tacadao, Sr., father of the victims, identified the signatures on the affidavits and testified that accused-appellant had nothing to do with the crime because he was not allegedly present at the shooting. 16 He claimed that it was Eder Ballabare who shot the brothers, and that Gerry Ballabare was implicated only because the family of the deceased wanted to secure the conviction of two members of the Ballabare family to answer for the loss of two of its members. 17 The trial court found the testimony of Tessie Asenita credible. It rejected accused-appellant's alibi and dismissed the Affidavit for the withdrawal of testimony of Tessie Asenita and the Affidavit of Desistance of the private complainant as mere attempts to escape liability for the crime. It found accused-appellant guilty of Illegal Possession of Firearm and two counts of murder. Hence, this appeal. Accused-appellant alleges: I. THE TRIAL COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN NOT ACCORDING ACCUSED HIS CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT AND TO AN IMPARTIAL TRIBUNAL. II. THE TRIAL COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN PROCEEDING AGAINST ACCUSED FOR MURDER AND ILLEGAL POSSESSION OF FIREARM IN VIOLATION OF HIS CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY. The assignment of errors raise a number of issues which will be discussed in the course of this decision. The so-called Recantation and the Affidavit of Desistance In his first assignment of error, accused-appellant contends that the trial court erred in relying on the testimony of Tessie Asenita because the fact is that this witness subsequently executed an Affidavit withdrawing her testimony to which was attached an Affidavit of Desistance signed by Leonardo Tacadao, Sr., father of the deceased. He argues that on the basis of these affidavits he should have been acquitted. The contention has no merit. To begin with, the Affidavit executed by eyewitness Tissie Asenita is not a recantation. To recant a prior statement is to renounce and withdraw it formally and publicly. 18 In her affidavit, Tessie Asenita did not really recant what she had said during the trial. She only said she wanted to withdraw her testimony because her father, Leonardo Tacadao, Sr., was no longer interested in prosecuting the case against accusedappellant. Thus her affidavit stated:
3. That inasmuch as my father, Leonardo Tacadao, Sr., the complainant therein, was no longer interested to prosecute the case as manifested in the Sworn Affidavit of Desistance before the Provincial Prosecutor, I do hereby WITHDRAW and/or REVOKE my testimony of record to confirm [sic] with my father's desire; It is absurd to disregard a testimony that has undergone trial and scrutiny by the court and the parties simply because an affidavit withdrawing the testimony is subsequently presented by the defense. In the first place, any recantation must be tested in a public trail with sufficient opportunity given to the party adversely affected by it to cross-examine the recanting witness. In this case, Tessie Asenita was not recalled to the witness stand to testify on her affidavit. Her affidavit is thus hearsay. It was her husband, Roque Asenita, who was presented and the matters he testified to did not even bear on the substance of Tessie's affidavit. He testified that accused-appellant was not involved in the perpetration of the crime. In the second place, to accept the new evidence uncritically would be to make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. 19 For even assuming that Tessie Asenita had made a retraction, this circumstance alone does not require the court to disregard her original testimony. A retraction does not necessarily negate an earlier declaration. 20 For this reason, courts look with disfavor upon retractions because they can easily be obtained from witnesses usually through intimidation or for monetary considerations. 21 Hence, when confronted with a situation where a witness recants his testimony, courts must not automatically exclude the original testimony solely on the basis of the recantation. They should determine which testimony should be given credence through a comparison of the original testimony and the new testimony, applying the general rules of evidence. 22 In this case we think the trial court correctly rules: The accused in his vain and desperates [sic] bid to secure exculpation presented Roque Asenita, husband of lone prosecution witness, Tessie Asenita. From the testimony of the former, it would appear that the latter executed an affidavit of desistance withdrawing her entire testimony given before the Court. He further testified that it was only Eder Ballabare who was the only one responsible for the killing of both the Tacadao brothers, Juan and Leonardo and that Gerry Ballabare had nothing to do with the killing specially of Leonardo Tacadao, Jr. It was further alleged that accused Gerry Ballabare was held responsible for the killing due to the fact that since 2 members of the Tacadaos were killed, it was decided in the family conference of the Tacadaos that 2 members of the Ballabare should likewise be held responsible. This proffered excuse or justification can be dismissed outright as a desperate attempt to escape liability by Gerry Ballabare. There appeared to be no plausible motive why he should be singled out and identified by Tessie Asenita if he was not there and was in his yard all the time when his younger brother Edito who initially started the melee was not pointed to as the one responsible for the shooting of the two Tacadao brothers. It should be added that the paraffin test by the NBI forensic chemist showed that accusedappellant's hand was positive for gunpowder. Nor is the Affidavit of Desistance executed by Leonardo Tacadao, Sr. a basis for dismissing these cases. Like Tessie Asenita, whose Affidavit withdrawing her pervious testimonies was presented, Leonardo Tacadao, Sr. was not presented in court. His affidavit merely stated that in the interest of neighborliness and for lack of interest, Leonardo Tacadao, Sr. was desisting from prosecuting the cases against accused-appellant. Thus:
That I am the father of the deceased victims, Leonardo Tacadao, Jr. and Juan Tacadao, and complainant against certain Jerry Ballabare and Eder Ballabare for "Double Murder" under Criminal Case No. 9067 in Branch 50 of the Regional Trial Court of Palawan, Puerto Princesa City; That we are neighbors with the accused in Pulot II, Brooke's Point, Palawan, as such I would like to maintain our good relationship with them; That in view of the foregoing, and all attributing circumstances not mentioned herein, I totally lost my interest in prosecuting the case in Court, and I therefore desist from prosecuting the same. Accused-appellant quotes the following from our decision in Gomez v. Intermediate Appellate Court: 23 It is conceded that the State has the sovereign right to prosecute criminal offenses under the full control of the fiscal and that the dismissal of criminal cases by the execution of an affidavit of desistance by the complainant is not looked upon with favor. However, it is also true that an affidavit of desistance may create serious doubts as to the liability of the accused. At the very least, it calls for second hard look at the records of the case and the basis for the judgment of conviction. Jurisprudence on the effect of desistance notwithstanding, the affidavit should not be peremptorily dismissed as a useless scrap of paper. There is nothing in this excerpt which dictates a different conclusion from that reached by the trial court, much less which entitles accused-appellant to a finding of reasonable doubt. To the contrary it is the general rule rather than the exception regarding affidavits of desistance being looked with disfavor which applies in this case. As pointed out in People v. Lim, 24 which is also cited by accused-appellant, an affidavit of desistance is merely an additional ground to buttress the accused's defenses, not the sole consideration that can result in acquittal. There must be other circumstances which, when coupled with the retraction of desistance, create doubts as to the truth of the testimony given by the witnesses at the trial and accepted by the judge. 25 Here, there are no such circumstances. For as already noted, the affidavit of desistance of the complainant, like the alleged affidavit of retraction by Tessie Asenita, is not a repudiation of the material points alleged in the information and proven at the trial, but a mere expression of the lack of interest of private complainant to pursue the case. Moreover, the trial court already had the opportunity of taking a hard look at the records of the case, as accused-appellant urges, when it resolved the motion for reconsideration filed by the appellant prior to the elevation of the case on appeal before this Court, but the trial court found no basis for altering its decision. Evidence Against Accused-Appellant Overwhelming This Court itself has carefully gone over the record of this case, particularly the transcript of stenographic notes of the testimony of Tessie Asenita, and after doing so finds no reason to reverse the decision of the trial court, especially considering the result of the paraffin test showing accused-appellant's left hand positive for gunpowder. Much is made by accused-appellant of Tessie Asenita's admission that from the kitchen, she could not see what was happening in front of her house. Thus: 26 COURT
Q: From the place where you were could you see what was happening outside your house? A: It can be seen if you will go upstairs. Q: From the kitchen where you were as you said can you see what was happening in front of your house? A: It cannot be seen if you are at the kitchen because our house consist [sic] of 2 doors. This contention is misleading. Tessie Asenita testified that from the kitchen she could not see what was happening in front of her house. But she said this in reference to the mauling of Moreto Miason not to the shooting of Juan and Leonardo Tacadao Jr. It was precisely because she could not see what was happening after she heard a commotion that she said she went "outside, at the road," 27 where she saw Edito Ballabare's group attacking Moreto Miason and Juan Tacadao. The shooting took place later, "near the kitchen" not in front of the house in full view of this witness. As Tessie Asenita explained: 28 COURT Q: At the time that the alleged rushing of the Ballabare was made by them, is it your testimony that you went up the kitchen. A: Yes, sir. Q: And that was the time that the firing occurred? A: Yes, sir. Q: And you were up the kitchen? A: I was up the kitchen. Q: You did not therefore see the firing? A: I saw sir. Because our house is also open and our yard is also clear as it is only planted with sweet camote. Q: But you said you were up the kitchen? A: But it can be seen. Because they fired their guns near our kitchen also. Nor is the fact that there was only one witness who testified on the participation of the accused-appellant in the crime of any moment. It is settled that the testimony of even a single witness, if positive and credible, is sufficient for the purpose of obtaining a conviction.
29
Accused-appellant insinuates that the prosecution presented false testimony to exact a "primitive kind of revenge" against appellant's family. He cites the testimony of Roque
Asenita that accused-appellant was being prosecuted even though the latter did not take part in the commission of the crime in order to make his family answer for the death of two members of the Tacadao family. As the trial court points out, however, it would have been more convenient for the prosecution to point to Edito Ballabare as the perpetrator because he was after all the one who started the melee and he was the most prominent protagonist. Why Accused-Appellant's Alibi Cannot Save Him As already stated, accused-appellant's defense is alibi. This defense cannot stand in view of his positive identification by Tessie Asenita that he was the one who had shot and killed Leonardo Tacadao, Jr. Considering that the appellant had been known to Tessie Asenita for years as a neighbor, 30 in addition to the fact that the incident occurred in the afternoon, in full view of said witness, we see no reason to doubt her identification of the accused-appellant. Indeed, the defense of alibi cannot prevail over the positive identification of the accused by the prosecution witness. 31 Especially is this so, in view of accused-appellant's claim that the place where he allegedly was at the time of the incident is only 200 meters away (approximately three minutes walk) from the place of the incident. 32 The defense of alibi requires an accused to prove his presence in another place at the time of the perpetration of the offense and to demonstrate that it would thus be physically impossible for him to be at the scene of the crime. 33 Accused-appellant has not shown any of these elements in the case at bar. The Proof is, however, Insufficient to Show Conspiracy Accused-appellant's contention that there can be no finding of conspiracy in this case is well taken. As already stated, accused-appellant was found guilty as a direct participant in the shooting of Leonardo Tacadao, Jr. and as conspirator in the shooting of Juan Tacadao by Eder Ballabare. In the case of People v. Arroyo, 34 this Court held: A conspiracy in the statutory language exists when two or more persons come to an agreement concerning the commission of a felony and decided to commit it. The objective then on the part of the conspirators is to perform an act or omission punishable by law. What is required is assent to the perpetration of such misdeed. That must be their intent. There is a need for concurrence of wills or unity of action or purpose, or common and joint purpose and design. At times, reference is made to previous concert of the criminal design. Its manifestation could be shown by united and concerted action. Thus, a conspiracy need not be proved by direct evidence. It may be deduced from the mode and manner in which the offense was perpetrated. The conditions attending its commission and the acts executed may be indicative of the common design to accomplish a criminal purpose and objective. If there is a chain of circumstances to that effect, then conspiracy has been established. If such be the case then, the act of one is the act of all the others involved and each is to be held to the same degree of liability as the others. But although direct proof is not essential to establish conspiracy, the existence of conspiracy must nonetheless be established by positive and conclusive evidence. 35 Here, the trial court found conspiracy between accused-appellant and his brother, Eder Ballabare on the basis of the following:
From the narration of the events that occurred on that fateful afternoon as disclosed by the sole witness for the prosecution, it appeared that the participants to the killing in question numbering more or less 11 inclusive of the 2 herein accused were animated by a desire to achieve a common purpose which was to kill their quarry. This can very well be deduced from the fact that prior to their entry into the yard, Juan Tacadao was already being mauled for his intrusion in preventing the mauling of the native Palawano. Further, it may be stated that one of the group armed with a long firearm identified as Rolando Carandang positioned himself at or near the back of the house to prevent their exit. Although he did not fire a shot, nonetheless his participation showed a concurrence of will with his armed companions. The foregoing findings are, in our opinion, insufficient to establish conspiracy. The lone prosecution witness, Tessie Asenita, testified that accused-appellant and Eder Ballabare were not originally with Edito's group when they attacked Moreto Miason and Juan Tacadao. By her account accused-appellant and Eder Ballabare arrived only after the fight between Edito's group, on the one hand, and the Tacadao brothers, on the other, had begun. The accused-appellant may have simply joined in the melee without necessarily any pervious agreement to assault Juan and Leonardo Tacadao, Jr. Even the trial court stated in its decision that it "is more disposed to believe that the encounter resulted in the accidental presence of the native Palawano, Moreto Miason, in front of the house of Tessie Asenita, who was mauled by the brother of Eder Ballabare regarding the disposal of almaciga gathered" and that "if the incident eventually involved the Tacadao brothers, it was more probable [that] the group of the accused resented the intervention of Juan Tacadao in preventing further mauling of the native Palawano who was their friend and companion." What was said in People v. Dorico 36 may, therefore, be said in the case at bar: The meeting of the victim by the accused was purely casual. No other evidence was presented by the prosecution to show conspiracy, which, according to the settled rule, must be proved as clearly and as convincingly as the commission of the crime itself. In People vs. Portugueza, this Court ruled that "although the defendants are relatives and had acted with some degree of simultaneity in attacking their victim, nevertheless, this fact alone does not prove conspiracy. The same degree of proof necessary to prove crime is required to establish conspiracy. For lack of sufficient evidence showing conspiracy accused-appellant must be absolved from liability for the killing of Juan Tacadao and held liable only for the killing of Leonardo Tacadao, Jr. Accused-appellant not guilty of Murder but only of Homicide The trial court also erred in finding that the killing of Leonardo Tacadao, Jr. by the appellant was attended by treachery, thus, qualifying the offense to murder. For treachery to be appreciated, two conditions must concur: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate and (b) the means of execution employed was deliberately or consciously adopted. 37 In a number of cases, 38 we had occasion to discuss factual circumstances which negate the existence of treachery. In People v. Nemeria, 39 we noted the following: (a) that the incident occurred at about six o'clock in the late afternoon, when people could still be recognized at a distance; (b) that the victim was not totally unaware of the attack; and (c) that accused has committed the crime in the presence of other people who could have lent support to the victim.
In the case at bar, the fatal incident occurred at four in the afternoon, in broad daylight. The victims could not have been taken by surprise as the attack was preceded by stone-throwing and they had the opportunity of arming themselves, as they were inside their sister's house and one of them in fact had injured one of the attackers (Henry Fabregas). Considering the rule that treachery cannot be inferred but must be proven as fully and convincingly as the crime itself, 40 any doubt as to the existence of treachery in this case must be resolved in favor of the accused-appellant. The trial court also found that the aggravating circumstances of abuse of superior strength had attended the commission of the offense by accused-appellant. The trial court correctly appreciated this aggravating circumstance. The group of accused-appellant did not only enjoy superiority of number but also of arms consisting of firearms, bolos, stones and pieces of wood. The group of Moreto Miason, which included the two victims, were only 4 and were clearly no match for the group of Eder Ballabare which, including accused-appellant, were 11 and all. 41 That accused-appellant's group took advantage of their superiority in number and arms to perpetrate the offense charged is clear. However, this aggravating circumstance cannot be considered as a qualifying circumstance so as to make the killing murder. This circumstance was not specifically alleged in the information and therefore it can only be considered a generic aggravating circumstance for the purpose of increasing the penalty. A qualifying circumstance, like abuse of superior strength, which is not alleged, cannot be used to qualify the offense but may only be appreciated as a generic aggravating circumstance. 42 In addition, Accused-Appellant is liable for Illegal Possession of Firearm In his second assignment of error, accused-appellant contends that the trial court gravely abused its discretion in finding him guilty of murder and illegal possession of firearm. He points out that both offenses arose out of a single incident and that as a result of the decision finding him guilty of separate crimes, he was placed in double jeopardy. He cites the case of Lazaro v. People, 43 in which it was held that conviction of Illegal Possession of Unlicensed Firearm is a bar to another prosecution for Parricide committed with the use of the unlicensed firearm under the rule on double jeopardy. The argument has no merit. In the case of People v. Deunida, 44 the Court declared Lazaro v. People "no longer controlling in view of our decisions in People v. Tac-an, [182 SCRA 601 (1991)], People v. Tiozon, [198 SCRA 368 (1991)], and People v. Caling [208 SCRA 821 (1992)]" and held that Illegal Possession of Firearms and Ammunition does not absorb the crime of homicide or murder under the Revised Penal Code and therefore does not bar the simultaneous or subsequent prosecution for the latter crime. It is true that in the later case of People v. Barros, 45 this Court again ruled that a person who commits homicide or murder through the use of an illegally possessed firearm, is liable solely for the aggravated form of illegal possession of a firearm as defined in P.D. No. 1866, 1, par. 2. This decision, however, has since been overruled by the Court en banc in People v. Quijada 46 in which it was held that one who kills another with the use of an unlicensed firearm is guilty of two separate offenses of (1) either homicide or murder under the Revised Penal Code and (2) aggravated illegal possession of firearm under P.D. No. 1866, 1, par. 2. Other Errors in the Decision of the Trial Court
Furthermore, we hold that the trial court erred in imposing in this case the penalty of life imprisonment for accused-appellant's violation of P.D. No. 1866, 1, par. 2. The crime of illegal possession of firearm in its aggravated form is punishable by the penalty of death. Since the offense was committed on September 16, 1990, at a time when the imposition of the death penalty was prohibited, the penalty next lower in degree, i.e., reclusion perpetua, should instead be imposed. This is not the equivalent of the penalty of life imprisonment, as our cases have time and again explained. While "life imprisonment" may appear to be the English translation of reclusion perpetua, in reality, it goes deeper than that. First, "life imprisonment" is invariably imposed for serious offenses penalized by special laws, while reclusion perpetua is prescribed under The Revised Penal Code. Second, "life imprisonment," unlike reclusion perpetua, does not carry with it any accessory penalty. Third, "life imprisonment" does not appear to have any definite extent or duration, while reclusion perpetua entails imprisonment for at least thirty (30) years after which the convict becomes eligible for pardon, although the maximum period thereof shall in no case exceed forty (40) years. 47 Finally, the trial court erred in ordering accused-appellant to pay moral damages because no evidence, testimonial or otherwise, was presented by the prosecution to support such a finding. WHEREFORE, the decision of the trial court is MODIFIED by finding accused-appellant guilty of (1) homicide with one aggravating circumstance and no mitigating circumstance and sentencing him to an indeterminate terms of 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum and (2) violation of P.D. No. 1866 and sentencing him to reclusion perpetua; and by ordering him to pay the heirs of deceased Leonardo Tacadao, Jr. in the amount of P50,000.00 as indemnity. SO ORDERED. Romero, Puno and Torres, Jr., JJ., concur.
Republic of the Philipppines SUPREME COURT Manila SECOND DIVISION [G.R. No. 132023. October 12, 1998] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. LARRY SABEROLA Y LOQUENARIO, Accused-Appellant. DECISION PUNO, J.: Accused-appellant Larry Saberola y Loquenario, together with his brothers, Benjamin Saberola y Loquenario (a.k.a. Bensot) and Jaime Saberola y Loquenario (a.k.a. Bontoy), were charged
before the Regional Trial Court of Kalookan City with the crime of murder. The amended information dated June 17, 1993 reads:
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That on or about the 14th day of June 1993, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused conspiring together and mutually helping one another, with deliberate intent to kill, with the use of their superior strength, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, maul and stab on the different parts of the body one FERNANDO PENALOSA Y BULAN a.k.a. Nanding, thereby causing serious physical injuries, which cause(d) the latters death on the above-specified date. Contrary to law.[1]
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Among the three accused, only Larry Saberola was apprehended by the police. Benjamin Saberola and Jaime Saberola still remain at large.
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Accused-appellant was arraigned on June 28, 1993 where he pleaded not guilty.[2] Hence, trial ensued.
The prosecution established the following facts:
At about 4:00 in the afternoon of June 14, 1993, Fernando Penalosa went to the house of Recenti Bertos at Barrio Sta. Rita, Tala, Kalookan City to engage his game cock in a pakahig. An hour later, accused-appellant arrived and invited Penalosa to a drinking spree at his brothers place located in the same neighborhood. Penalosa initially declined as he was not in the mood to drink at the time. Due to accused-appellants insistence, however, he reluctantly acceded to the invitation.[3]
At 10:00 in the evening of the same day, a commotion erupted at Jaime Saberolas yard, which led to the killing of Penalosa. This was witnessed by the neighbors, among them, Recenti Bertos and Alfredo Rebamonte. Bertos stood 40 meters away from the crime scene[4] while Rebamonte stood 12 meters away.[5]
Bertos and Rebamonte testified that they were inside their respective homes when they heard shouts and wails coming from the direction of Jaime Saberolas house. They went out of their houses and witnessed accused-appellant and Penalosa in a tussle. They saw accused-appellant stab Penalosa on the left portion of the chest while holding the neckline of his sando shirt. Immediately, Jaime Saberola approached Penalosa and stabbed him on the left side of his body. Benjamin Saberola then struck Penalosa with a piece of wood. Accused-appellant released his hold of the victim and left him crawling on the ground. The assailants fled to their houses.[6] Bertos called Penalosas brother who brought the victim to the hospital.[7] Penalosa died the following morning.[8]
The defense presented a different version of the circumstances surrounding Penalosas death. Zenaida Nanta testified that she was at Benjamin Saberolas house on June 14, 1993. At around 5:00 in the afternoon, accused-appellant and Penalosa came by. They were looking for Penalosas
brother-in-law who was helping in the construction of the house. Accused-appellant went home at 7:00 in the evening, leaving Penalosa and his brother-in-law. Later, Nanta heard Penalosa and his brother-in-law having a heated argument. Benjamin Saberola advised them to go home. They left at around 9:00 in the evening. The following morning, Nanta learned from their neighbors that Penalosa had been stabbed.[9]
Accused-appellant denied any involvement in the killing of Penalosa. He testified that in the afternoon of June 14, 1993, he went on a drinking spree with his neighbors, Totoy Nizare, Renato Dizon and Penalosa, at the house of his brother, Benjamin. While they were drinking, Nizare had an altercation with Penalosa, his brother-in-law, about the burial of his wife. Benjamin pacified them, after which they continued to drink. Accused-appellant and Dizon departed before 6:00 in the evening. Penalosa and Nizare were left behind.[10]
Accused-appellant further testified that he went to sleep upon reaching his house which was also located at Barrio Sta. Rita, Tala, Kalookan City. His wife tried to wake him up for supper but he was too sleepy to get up. He awoke at 6:00 in the morning the following day and learned about the death of Penalosa.[11]
The testimony of accused-appellant was corroborated by his wife, Elvira Saberola.[12]
The trial court held accused-appellant guilty of murder. It found that there was conspiracy among the Saberola brothers to kill Penalosa and that the killing was aggravated by treachery and abuse of superior strength. It sentenced accused-appellant to suffer an indeterminate penalty of twelve (12) years of prision mayor as minimum to eighteen (18) years of reclusion temporal as maximum, and to pay the victims father the amount of P51, 377.00 as actual damages and P50,000.00 as consequential damages plus cost.[13] The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, this Court finds accused Larry Saberola y Loquenario guilty beyond reasonable doubt of Murder as charged and hereby sentences said accused to suffer imprisonment of TWELVE (12) YEARS of Prision Mayor as minimum to EIGHTEEN (18) YEARS of Reclusion Temporal, as maximum, taking into consideration the Indeterminate Sentence Law; to pay Potenciano Penalosa, the father of the victim, the amount of P51,377.00 representing the expenses incurred for the last hospitalization of the victim and the expenses incurred during the wake and for the burial of the same and the additional amount of P50,000.00 as consequential damages, as well as to pay the cost.
This offense was committed before the passage of R.A. 7659.
The accused shall be credited with the full period of time he has undergone preventive imprisonment pursuant to Art. 29 of the Revised Penal Code provided the conditions enumerated therein, have been complied with.
SO ORDERED.[14]
On appeal, the Court of Appeals modified the judgment of the trial court although it affirmed accused-appellants conviction. First, it found that the prosecution failed to establish conspiracy among the three accused. Second, it found that the felony was not attended by treachery and evident premeditation. The appellate court, however, appreciated the aggravating circumstance of abuse of superior strength. It held:
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While We agree with the trial court as to the culpability of the accused-appellant, We are not convinced that treachery and evident premeditation attended the commission of the crime. Treachery or alevosia may be appreciated when the following requisites are present: 1.) the employment of the means, method and manner of execution which will ensure the safety of the malefactor from defensive or retaliatory acts on the part of the victim, no opportunity being given to the latter to defend himself or to retaliate and 2.) deliberate or conscious adoption of such means, method or manner of execution. On the other hand, the following requisites must concur before evident premeditation may be considered: a.) the time when the accused determined to commit the crime; b.) an act manifestly indicating that the accused had clung to his determination and c.) sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act.
Well-settled is the rule that the circumstances which would qualify the killing to murder must be proved as indubitably as the crime itself. There has been no such showing in this case other than the unpersuasive disquisition of the lower court that:
`The qualifying circumstance of treachery was present in the commission of the crime as charged. The accused Larry Saberola and his two brothers were all armed with deadly weapon (sic) while the victim was unarmed. They made use of their superior strength. The victim did not have any opportunity to repel the aggression or to escape. xxx
Neither are we convinced that the killing of the victim was the product of a conspiracy between accused-appellant and his brothers. Conspiracy exists when two or more persons come to an agreement concerning a felony and decide to commit it. Conspiracy, like the crime itself, must be proven beyond reasonable doubt and ones mere presence in the crime scene, by itself, does not make him a conspirator. There, likewise, has been no such showing in the case at bench other than the bare pronouncement on the court a quo that `Larry Saberola acted in concert with his two brothers helping and cooperating with one another by simultaneous acts in pursuant (sic) to a common objective.
However, there has been a clear showing of abuse of superior strength which qualifies the killing to murder where, as in this case, three assailants utilized their superiority in numbers and employed deadly weapons in assaulting an unarmed victim. xxx[15]
The Court of Appeals then increased the prison penalty of accused-appellant to reclusion perpetua, thus:
xxx The penalty for murder under Article 248 of the Revised Penal Code is reclusion temporal in its maximum period to death. Clearly, therefore, the trial court erred in
imposing an indeterminate penalty of imprisonment of Twelve (12) Years of Prision Mayor as minimum to Eighteen (18) Years of Reclusion Temporal as maximum.
The crime was committed on June 14, 1993 prior to the effectivity of R.A. No. 7659 which imposes the death penalty on certain heinous crimes. The said statute xxx took effect on December 31, 1993, and thus, will not be applied. There being no aggravating or mitigating circumstance, the penalty should be imposed in its medium period which is the indivisible penalty of Reclusion Perpetua.[16] (citations omitted)
In view of the imposition of reclusion perpetua upon the accused-appellant, the Court of Appeals certified the case to this Court, in accordance with Section 13 Rule 124 of the Revised Rules of Court.[17]
On February 16, 1998, the Court accepted the case and informed the accused-appellant that he may file an additional brief.[18] However, on April 22, 1998, accused-appellant manifested that he is adopting his brief filed in the Court of Appeals.[19]
After a thorough study of the records, we find no reason to disturb the ruling of the Court of Appeals.
The guilt of accused-appellant has been proven beyond reasonable doubt. Two eyewitnesses, Bertos and Rebamonte, positively identified accused-appellant as one of the assailants. Accusedappellants alibi cannot overcome their eyeball testimonies, especially since it has not been shown that it was impossible for him to be at the scene of the crime at the time of its commission. Accused-appellant claimed that he was sleeping in his house when the crime happened. The records, however, show that his house was only a few meters away from the crime scene.
To be sure, the defense tried to impute ill motive on the part of Bertos and Rebamonte in testifying against accused-appellant. The effort, however, is futile for the imputation is not supported by any evidence other than the bare allegations of accused-appellant himself and other persons related to him.
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Besides, the testimonies of Bertos and Rebamonte were corroborated by the autopsy report made by Dr. Florante M. Baltazar, Medico-Legal Officer and Chief of the PNP Crime Laboratory, National Capital Region, Northern Police District Command. The autopsy report shows that Penalosa sustained two stab woundsone on the anterior left infraclavicular region (near the left shoulder) and another at the posterior left lumbar region (left lower back) and two abrasions and an incised wound. Dr. Baltazar testified that based on the measurement of the stab wounds, it is possible to conclude that more than one weapon was used to inflict them. He also said that the abrasions could have been caused by friction from a rough object like a piece of wood.[20] Clearly, the narration of events by Bertos and Rebamonte jibed with the result of the autopsy on the victims body.
chanroblesvirtua lawlibrary
The Court affirms the finding that accused-appellant committed murder and the imposition of reclusion perpetua upon him.
At the time of the commission of the crime, the penalty for Murder was reclusion temporal in its maximum period to death. Article 64 of the Revised Penal Code provides the rules for the determination of the appropriate penalty in such case, thus:
Art. 64. Rules for the application of penalties which contain three periods.In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the court shall observe for the application of the penalty the following rules, according to whether there are or not mitigating or aggravating circumstances:
1. Where there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period.
2. When only a mitigating circumstance is present in the commission of the act, they shall impose the penalty in its minimum period.
3. When only an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period.
4. When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight.
5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it deems applicable, according to the number and nature of such circumstances.
6. Whatever may be the number and nature of the aggravating circumstances, the court shall not impose a greater penalty than that prescribed by law, in its maximum period.
7. Within the limits of each period, the court shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater or lesser extent of the evil produced by the crime.
In the case at bar, since there was no further aggravating nor mitigating circumstance, the penalty should be imposed in its medium period, that is, reclusion perpertua.
Accused-appellant is not entitled to the benefits of Indeterminate Sentence Law because Section 2 of said law provides that the Act shall not apply to persons convicted of offenses punished with death penalty or life imprisonment. The term life imprisonment has been construed to include reclusion perpetua.[21]
IN VIEW WHEREOF, we AFFIRM the decision of the Court of Appeals. Costs against accused-appellant.
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. Nos. 112164-65 February 28, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SOLOMON VILLANUEVA Y ODE, accused-appellant. DECISION BELLOSILLO, J.: Lea Villanueva, 14, cried of repetitive incestuous rape. For two years she had been continuously, countlessly abused by her own father who with unmitigated perversity indoctrinated her into eroticism and libidinal gratifications. "Pinagpaparausan niya ako," she bewailed.1 She suffered in anguish and isolation. Her revelations were horrid if not sickening. She turned to her mother who in her timidity and utter helplessness could only mutter, "Ipinauubaya (ko) na sa Diyos."2 But deliverance must finally come and it did. Barely three (3) days after her last incestuous encounter with her father her mother died. Lea seized the opportunity for relief. She ran to her maternal grandmother for solace. It was when she was under the care of her lola that the latter finally found out that Lea was repeatedly abused by her father. She was brought to a physician who examined her and found the lacerations on her private parts. They were too revealing to be ignored. Accordingly her father was charged, at least with two (2) counts of rape. Confronted with the charges Solomon Villanueva at first denied. He claimed that at the particular hours mentioned by Lea he was not home. But his alibi was totally rejected by the trial court which convicted him instead as charged. He is now before us with a different pretension. As if exculpating, he now says his daughter Lea consented to their fornications. We are appalled. Lea's maiden defloration was in their house along Dagupan Street, Tondo, Manila, around nine o'clock in the evening of 19 September 1990 when her father roused her from her sleep and brought her to his room. She was only 12 years and 4 months then. She was at once forewarned by her father not to tell anybody whatever he would do with her otherwise he would kill her as well as her mother and only brother. Then he removed her clothes after which he also took his off. Fear haunted her. He asked her to lie down on her back and placed himself on top of her. He inserted his organ into hers; she bled. After he was through he told her to go back to sleep. Her sexual initiation was not meant to be her last. It became routine for almost two (2) years with her father, happening about four (4) times a week, each varying to maximize sexual euphoria. A pall of death loomed over every act. On 14 June 1992 at around nine o'clock in the evening Lea was again ravished. From the living room where she together with her mother and brother was sleeping she was dragged by her father to his room. "Gagalawin daw niya ako," she narrated. He removed her T-shirt and short pants; he stripped, asked her to lie down, placed himself on top of her, inserted his penis into her vagina, and
pumped for about thirty (30) minutes. He told her that what he was doing was for her own "good." After his "success," he threatened her again and ordered her to go back to sleep. Three (3) days later, or on 17 June 1992, Lea's mother died. On 2 July 1992 she ran off to her grandmother. "Hindi ko na matiis ang ginagawa niya sa akin."3 That same day she was accompanied by her granduncle to the National Bureau of Investigation where she was examined by Dr. Ruperto Sombillon, Jr., who found her "hymen, originally thick, wide, with superficial old-healed laceration at 6:30 o'clock position . . . edges of which (were) rounded and non-cooptable . . . vagina walls, moderately lax . . . rugosities shallow."4 Accordingly, Solomon Villanueva was charged with two (2) separate crimes of rape, one which occurred "sometime in September 1990," while the other, for the attack "on or about June 14, 1992." The two (2) cases were consolidated and tried jointly. The accused denied the charges leveled against him and claimed they were trumped up by the relatives of his deceased wife to avenge the cruelty and neglect she supposedly suffered from him when she was still alive. He narrated that as a delivery truck driver then, he would normally leave their house at ten o'clock in the morning and return home past eleven o'clock in the evening. He rarely saw their daughter Lea as he came home from work late at night, dead-tired and sleepy. On 19 September 1990 and 14 June 1992 he got home already past eleven o'clock in the evening. On 22 January 1993 the Regional Trial Court of Manila,5 disregarded the alibi of Solomon Villanueva, found him guilty of rape on two (2) counts, sentenced him in each to reclusion perpetua, and ordered him to indemnify his daughter Lea in the amount of P50,000.00 as moral damages in both cases. Accused-appellant is now before us insisting on his innocence. First, he harps on Lea's failure to offer resistance considering that he was not armed with any weapon nor did he employ physical violence. He would thus doubt the allegation of Lea that she reported the incident to her grandparents because she could no longer take what he was doing to her. For, if this were true, he said, she should not have waited for two (2) years, and if she did not like what he was doing to her she should have immediately gone to her grandparents after the first or even the second incident. Second, accused-appellant quibbles over the testimony of Lea. He claims that her story that he was on top of her and having sex with her for 20 to 30 minutes is difficult to believe since "[t]his is too much for a 12-year old girl to bear."6 He likewise submits that her testimony that her mother knew what he was supposedly doing to her and yet did not do anything is "incredible and against human nature and not in accord with common knowledge and experience of mankind."7 The arguments are disgusting at the very least. The trial court found the testimony of Lea "categorical, positive and convincing."8 Hence we accord full faith and credence to her narration that she was ravished by her own father. We are convinced that the act complained of indeed occurred and were perpetrated by accused-appellant as testified to by the victim and confirmed by the court a quo. Factual findings of the trial court are accorded the highest respect unless it is shown that certain facts of value have been plainly overlooked which if considered could affect the result of the case.9 But accused-appellant in the case at bench has not presented any substantial evidence to disturb the conclusions of the court a quo. For sure Lea would not have publicly disclosed that she had been raped by her own father and then undergo trial where she had to bare her traumatic and harrowing experience and be subjected to harassment, embarrassment and humiliation, if not public ridicule, unless she was really raped and her motive was solely to seek justice.10 She was barely 12, innocent, inexperienced, naive, guileless when first abused. It would be highly improbable for her against whom no proof of sexual perversity
or loose morality had been shown to fabricate charges, much more against her own father. Her testimony alone, which is credible, is sufficient to sustain the conviction of her ravisher.11 In fact it is entitled to greater weight since her accusing words are directed against a close relative.12 That Lea consented to the sexual congress, repeatedly at that, as she did not offer resistance despite the fact that he was not armed nor did he use physical violence, can only be conceived by a diseased mind a sex deviant who deserves no place in civilized society. His threats and intimidation that gripped Lea in fear must be viewed in the light of her perception and judgment at the time of the rape and not by any hard and fast rule.13 Physical resistance need not be established in rape when threats and intimidation are employed and the victim submits herself to the embrace of her rapist because of fear.14 What is more, accused-appellant is her own father with whom she stayed in the same house and who certainly exercised moral ascendancy not only over her but likewise over her mother and brother. Thus Lea's failure to immediately report her repeated debauchment did not by itself diminish her credibility. It is not uncommon for young girls to conceal for sometime assaults on their virtue not only because of shame but largely because of the threats on their lives.15 It has been often said that different people react differently to a given situation or type of situation, and there is no standard form of human behavioral response when one is confronted with a strange, startling or frightful experience.16 It is not unlikely that Lea could be intimidated into silence by the slightest threat to her life. A young girl like Lea cannot be expected to have the courage and intelligence to immediately report the countless sexual attacks committed against her especially when equally countless death threats hang over her head. To Lea's simple unsophisticated mind, accused-appellant was not merely fribbling threats.17 Accused-appellant belittles his daughter's claim that he was on top of her for 20 to 30 minutes. This, according to him, is difficult to believe since "[t]his is too much for a 12-year old girl to bear." We do not see his difficulty nor are we moved by his sudden "concern" for his daughter. What we find easy to believe, on the contrary, is that a sexual psychopath like him who is capable of unleashing his biological urges on his own flesh will do everything to satisfy his venereal delight. That Lea's mother knew that accused-appellant was repeatedly ravishing Lea and yet did not do anything, is not at all incredible. For one, Lea's mother appeared to be equally fearful of him who wielded unabashed dominance over his household. Any opposition or resistance would seem futile. And while mothers may have the natural impulse to protect their young, not all may have sufficient fortitude to follow their instincts. In fine, we find accused-appellant guilty beyond reasonable doubt of rape on two (2) counts. Turning to the penalties, the trial court sentenced accused-appellant to reclusion perpetua in each of the two (2) counts and ordered him to indemnify his victim in both cases P50,000.00 for moral damages. Interestingly, the Solicitor General invokes People v. Lucas 18 and submits that the penalty should be modified, i.e., accused-appellant should be sentenced to thirty-four (34) years, four (4) months and one (1) day of reclusion perpetua in each of the two (2) cases, and argues that since accused-appellant was found guilty of rape on two (2) counts he should be ordered to pay complainant P50,000.00 as moral damages and P25,600.00 as exemplary damages in each of the two (2) cases or a grand total of P150,000.00. Suffice it to say that on 9 January 1995 the Court en banc reconsidered People v. Lucas19 and modified the decision of 25 May 1994 by "DELETING therefrom the disquisitions on whether
reclusion perpetua is a divisible penalty and SETTING ASIDE its division into three periods." In view thereof we revert to the ruling that since reclusion perpetua is an indivisible penalty it has no minimum, medium or maximum period. It is imposed in its entirety regardless of any mitigating or aggravating circumstances that may have attended the commission of the crime. Anent the civil indemnity, we find the argument of the Solicitor General to be impressed with merit. Accordingly the indemnity should be P50,000.00 in each of the two (2) cases or a total of P100,000.00.20 An award of P25,000.00 in each case as exemplary damages to deter other sex perverts or two-legged beasts from sexually assaulting or molesting hapless and innocent girls, especially their own kins, is likewise appropriate.21 WHEREFORE, the appealed decision finding accused-appellant SOLOMON VILLANUEVA y ODE guilty of rape on two (2) counts and sentencing him to reclusion perpetua in each count is AFFIRMED. In addition, he is ordered to pay Lea Villanueva P50,000.00 as indemnity and P25,000.00 as exemplary damages for each count of rape or a total of P150,000.00. Costs against accused-appellant. SO ORDERED. Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. Nos. 150079-80 June 10, 2004
PEOPLE OF THE PHILIPPINES, appellee, vs. FLORENTINO O. RAMIREZ JR., appellant. DECISION PANGANIBAN, J.: The Constitution presumes the accused to be innocent until the contrary is proved. No less than proof beyond reasonable doubt of every fact necessary to constitute the crime charged must be established to overcome such presumption. This duty subsists notwithstanding the weakness of the evidence for the defense. Prosecutors are enjoined to exert their best to lay out the facts faithfully, clarify contradictions and fill up gaps in their evidence. The Case Florentino O. Ramirez Jr. appeals the June 29, 2001 Decision1 of the Regional Trial Court (RTC) of Lingayen, Pangasinan (Branch 68), in Criminal Case Nos. L-6275 & L-6276, finding him guilty of rape on two counts and sentencing him to reclusion perpetua for each crime. The dispositive portion of the Decision is worded thus:
"WHEREFORE, in view of the foregoing, judgment is hereby rendered convicting the accused Florentino Ramirez, Jr. beyond reasonable doubt of two (2) counts of rape as narrated in the aforequoted [I]nformations, which are contrary to Article 266-A, Revised Penal Code as amended by R.A. 8353 and hereby sentenc[ing] him to reclusion perpetua for each of the instant two (2) cases. "The accused is likewise ordered to pay the complainant Diana Pagaduan the following: moral damages of P100,000.00 and exemplary damages of P50,000.00 for each of the two (2) cases."2 Two (2) Informations3 were filed against appellant on May 30, 2000. Except for the dates of the commission of the crimes, the Informations are similarly worded thus: Criminal Case No. 6275 "That on or about the 7th day of May, 1999, in the evening, at Sitio Mangas, Barangay Baquieon, Municipality of Sual, Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a knife, through force, threats and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with Diana F. Pagaduan, a minor 14 years old, against her will, to her damage and prejudice."4 Criminal Case No. 6276 "That on or about the 26th day of May, 1999 early dawn[,] at Sitio Mangas, Barangay Baquieon, Municipality of Sual, Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a knife, through force, threats and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with Diana F. Pagaduan, a minor 14 years old, against her will, to her damage and prejudice."5 Upon his arraignment on June 27, 2000,6 appellant, assisted by his counsel,7 pleaded not guilty to both charges. The RTC tried the two cases jointly and thereafter rendered the assailed Decision. The Facts Version of the Prosecution At the initial hearing on August 24, 2000, Prosecutor Edmundo M. Manaois informed the trial court of an amicable settlement reached between the parties as shown by an Affidavit of Desistance executed by private complainant, fully quoted herein as follows: "AFFIDAVIT OF DESISTANCE "I, DIANA F. PAGADUAN, 14 years old and a resident of Ba[c]quioen, Sual, Pangasinan after having duly sworn to on oath in accordance with law, hereby depose and say: "1. That I am the complaining witness in Criminal Cases Nos. L-6275 and L-6276, both for Rape against accused Florentino O. Ramirez (detention prisoner) and pending trial in Regional Trial Court-Branch 68, Lingayen, Pangasinan;
"2. That after a heart to heart confrontation with the accused, I realize that the criminal charges against him is a mere product of a trivial misunderstanding between me and the accused; "3. That I further realize that the accused is indeed innocent of the crimes charge[d] since in truth, he never molested me sexually as charged; "4. That I and the accused have already patched up x x x our differences; "5. That in fairness to the accused, I decided to desist from further prosecution of the charges against him notonly because we intended to return our cordial relationship with each other but most of all because the accused had done me no wrong; "6. That I have executed this instrument voluntarily without any force or intimidation imposed by anybody and neither [have I] been paid any consideration; "7. That I am executing this affidavit in order to affirm the truth of the foregoing statements and in order to seek from the Honorable Court and other government entities for the dismissal of the charges against the accused. "IN WITNESS WHEREOF, I hereby affixed my signature below this 16th day of August, 2000 at Lingayen, Pangasinan, Philippines. (Sgd) DIANA F. PAGADUAN Affiant "ASSISTED BY: (Sgd) ALEJO O. VERZO Uncle (Sgd) Zenaida Pagaduan Guardian
"SUBSCRIBED AND SWORN to before me this 16th day of August, 2000 at Lingayen, Pangasinan, Philippines. (Sgd) EDMUNDO M. MANAOIS Asst. Provl. Prosecutor Lingayen, Pangasinan"8 During this hearing, private complainant affirmed the veracity and the voluntariness of her Affidavit. She said that the document had been translated to her in Ilocano, and that she fully understood its contents. She confirmed her awareness that by reason of her execution thereof, her case was likely to be dismissed. The mother, Zenaida Pagaduan, affirmed that the Affidavit had been explained to and signed by her daughter.
Prosecutor Manaois then called the following witnesses to the stand: (1) Soledad Pagaduan, private complainants older sister, and (2) Dr. Maria Teresa G. Sanchez, a medical officer of the Western Pangasinan District Hospital. Their respective testimonies are summarized by the Office of the Solicitor General (OSG) in its Brief as follows: "SOLEDAD PAGADUAN, sister of private complainant, confirmed having brought the latter to the Western Pangasinan District Hospital, in Alaminos, Pangasinan for medical examination on June 25, 1999. She also confirmed the fact that during the preliminary investigation of these cases, she made the following statements, to wit: that at early dawn of May 26, 1999, she was inside their house in Sitio Mangas, Ba[c]quieon, Sual, Pangasinan, [with] her brother, Romeo Pagaduan, her mother, Zenaida Pagaduan, her sister, herein private complainant Diana Pagaduan; and appellant [Florentino Ramirez] who is her mothers live-in partner; that when she woke up that morning, she went upstairs and saw appellant on top of private complainant and holding her thigh; that when appellant saw her, he immediately picked up his shortpants and fled downstairs; that when she confronted the private complainant about the incident, the latter cried I was raped. "MARIA TERESA G. SANCHEZ, Medical Officer of the Western Pangasinan District Hospital related to the court that private complainant was brought to her for medical examination on June 25, 1999 by her sister, Soledad, and uncle, Alejo Verzo; that in the course of her examination, private complainant disclosed that she was raped by appellant; that the rape happened twice, the first time on May 7, 1999 and the second time on May 26, 1999; that the May 7, 1999 incident occurred about 9:00 p.m. when she was left behind in their house at Sitio Mangas, Barangay Ba[c]quieon, Sual, Pangasinan, with appellant and her niece; [that] appellant poked a knife and forced her to have sexual intercourse with him; that the May 26, 1999 incident occurred at 4:00 a.m. and her companions at that time were the father and mother of the appellant[; and that] when [she] inquired [about] the whereabouts of the private complainants father, the latter replied that he died sometime on May 1993 or 1994. The vaginal examination made by the doctor on private complainant disclosed the following findings: = Nonparous introitus = Old hymenal laceration at 3 oclock position = Vagina admits 2 fingers with ease = Cervix close = Uterus small = No bleeding xxx xxx xxx
1. non-parous introitus means that the patient [has] not given birth 2. old hymenal laceration 3:00 oclock position that relates to hymen as compared to the face of a watch[;] the laceration have already healed.
3. vagina admits two fingers with ease, in laymans term, because normally the membrane around and inside the vagina is "kul[u]bot", but after repeated sexual act, the shape of the vagina would be obliterated, so there would be laxity of the vaginal muscle and that during the medical examination, insertion of two (2) fingers will have the slightest resistance. 4. include Cervix close[d]. Normally the cervix of a woman is close[d]. 5. No bleeding upon examination, the patient is not bleeding (vagina). = Menstrual History Menarche means the first menstrual period June 18, 1999. 6. No external physical injuries upon examination 7. Negative of Pregnancy Test 8. Negative for gram stain of vaginal discharge for the presence of spermatozoa."9 After formally offering private complainants Affidavit of Desistance and the Medical Certificate prepared by Dr. Sanchez as documentary evidence, the prosecution rested its case. Notwithstanding the Affidavit submitted by the prosecution, the RTC proceeded to hear the defense. On October 6, 2000, after the defense had closed its presentation of evidence, Prosecutor Manaois objected to its formal offer of the Affidavit of Desistance of private complainant. He manifested her retraction thereof on the ground that it had been obtained through improper influence and force. Thus, the Affidavit was not admitted by the court a quo. On February 14, 2001, private complainant testified on rebuttal that the allegation by appellant that he was in Baguio City on May 7, 1999, was not true. She declared that in reality, he had been at home in Sitio Mangas, Barangay Bacquioen, Sual, Pangasinan, where he had sexual intercourse with her. She affirmed that she really wanted her mother to be separated from him because, as private complainant declared in Tagalog, "Binaboy niya ako." Version of the Defense The version of the facts offered by the defense is summarized in appellants Brief as follows: "Accused FLORENTINO O. RAMIREZ, JR., under oath, testified that he is 29 years old, married, farmer and a resident of Urdaneta, Pangasinan. "He is the same Florentino Ramirez, Jr. the accused in Criminal Case Nos. 6275 and 6276 for rape filed against him by Diana F. Pagaduan, his stepdaughter. It is not true that he sexually abused the latter sometime in the evening of May 7, 1999, because he was then [at] Camp 8, Baguio City working as a laborer for his uncle Piano Ramirez, who was then repairing his three-storey house x x x. On the said date that he was working at his uncles house, he was with his co-workers, namely: Boy Ramirez, Julie Ramirez, Rudy Ramirez, Joel Pagaduan and one person [whose name he forgot]. He never left his uncles house on
May 7, 1999 particularly in the evening [thereof]. x x x, he slept at his uncles house together with his fellow workers, leaving only his stepdaughter Diana and his wife Zenaida Pagaduan in their house at Barangay Bacquioen, Sual, Pangasinan. However, on May 26, 1999, he was in the residence of Diana Pagaduan [at] Sitio Mangas, Barangay Bacquioen, Sual, Pangasinan, where he slept in the same house where Diana Pagaduan was staying, together with his father, mother, their siblings and his wife. "The house where he slept on the said date is made up of two storeys. He slept on the second floor x x x which has no room, together with his wife and Diana Pagaduan. He slept beside his wife Zenaida, but was only two (2) meters away from Diana, whom he could easily touch by just stretching his hand. "It is not true, as testified to by his step-daughter Soledad Pagaduan, that the latter saw him suspiciously wearing his brief half naked inside the mosquito net where Diana Pagaduan was then sleeping. While he admit that Diana Pagaduan is beautiful, young and was studying in high school, he denied having a secret liking [towards] her. He considered Diana as his own child. Diana Pagaduan filed these instant case[s] against him because his stepchildren wanted him to be separated from their mother Zenaida Pagaduan. However, he never confronted any of his stepchildren on this matter, neither did he ask his wife Zenaida, if the latter really wanted to separate from him. "BOY RAMIREZ, 41 years old, laborer, and a resident of Camp 8, Baguio City, testified under oath on the following facts: that he was with his brother Florentino Ramirez, Jr., the accused in these cases, on May 7, 1999, [at] Camp 8, Baguio City particularly [i]n their uncle Cipriano Pianong Ramirez house[; t]he accused arrived thereat in the morning of May 7, 1999 and stayed at Camp 8, Baguio City for more than a week[; t]he accused worked for their uncle Pianong Ramirez in the construction of a one[-]room extension at the latters house, and was assigned in digging a hole for the tie [b]eam foundation; that their working time thereat was from 8:00 oclock in the morning to 12:00 oclock noon, and 1:00 oclock in the afternoon to 5:00 oclock in the afternoon; that he has never seen the accused leave their uncle Pianong Ramirez house on May 7, 1999; that after their work on May 7, 1999, he was not with his brother Florentino, instead he attended to his family from 5:00 oclock p.m. to 9:00 oclock p.m. when he and his wife went to sleep. "He does not know if his brother Florentino Ramirez, Jr. was in Sual or lived in Sual from May 16, 1999 up to the end of the month, because as far as he knows, the latter is just residing in Pangasinan. "VILLAMOR AYATON under oath testified that he is 37 years old, married, unemployed and a resident of Barangay Bacquioen, Sual, Pangasinan. "On the morning of May 26, 1999 he was called by his mother Gloria Orpilla, who was then in the house of Diana Pagaduan purposely to talk about the killing of his brother Virgilio Ayaton. Aside from his mother and stepfather, Soledad Pagaduan and the latters mother were likewise present. When he reached the house of Diana Pagaduan, his half brother Florentino Ramirez, Jr. was outside the said house while Diana was inside the house. His brother Florentino Ramirez, Jr. was then wearing only his brief[,] which prompted his mother Gloria to tell Florentino to get something to wear. The latter then entered the house of Soledad Pagaduan and at that juncture, he was surprise[d] to hear the latter confront[ed by] Soledad Pagaduan. [He did not] talk to the mother of Soledad Pagaduan because he was so ashamed of what his brother Florentino Ramirez, Jr. allegedly did to Diana Pagaduan. He likewise knew at that time that Diana Pagaduan was still inside the house. But despite his
knowledge, he neither look[ed] for Diana x x x nor talked to the latter because he left for his work. On the other hand, Soledad Pagaduan likewise left and went to the house of one Alejo Ver[j]o. He did not give any statement about what he heard on that month, neither did he report the same to the barangay officials."10 Ruling of the Trial Court The RTC gave more credence and weight to the prosecutions evidence, specifically to the testimony of private complainant. It held that she had no ill motive to charge appellant falsely. For lack of proof of the physical impossibility of his being at the locus criminis at the time of its commission, scant consideration was given to his defense of alibi. Holding that denial was intrinsically weak and must therefore be supported by strong evidence of non-culpability to merit credence, the trial court likewise debunked his denial of the alleged second rape incident on May 26, 1999. Hence, this appeal.11 Issue In his Brief, appellant assigns this lone error for our consideration: "The court a quo erred in finding that the guilt of the accused for two (2) counts of rape has been proven beyond reasonable doubt, despite failure of the prosecution to present evidence to prove the crimes charged."12 The Courts Ruling The appeal is meritorious. Sole Issue: Sufficiency of the Prosecution Evidence Appellant contends that the prosecution failed to prove his guilt beyond reasonable doubt. First, in her Affidavit of Desistance dated August 16, 2000, private complainant categorically stated that he was innocent of the crime charged. Second, she gave no direct testimony describing the circumstances of the alleged rape. Her sweeping statement that he had sexual intercourse with her was clearly inadequate to establish his guilt. Affidavit of Desistance As a rule, a recantation or an affidavit of desistance is viewed with suspicion and reservation. Jurisprudence has invariably regarded such affidavit as exceedingly unreliable, because it can easily be secured from a poor and ignorant witness, usually through intimidation or for monetary consideration.13 Moreover, there is always the probability that it would later on be repudiated,14 and criminal prosecution would thus be interminable.15 Indeed, the Affidavit of Desistance of private complainant is highly suspect. Apparently, she executed it on the basis of a consideration of P5,000, which was later increased to P100,000. After her testimony had been rendered, however, appellant refused to pay the amount agreed upon, thereby prompting her to recant the Affidavit.16
She had stated therein that "the accused is indeed innocent of the crimes charge[d] since in truth, he never molested me sexually as charged." Such statement was a mere legal conclusion, bereft of any details or other indicia of credibility, much less truth. More likely, it emanated not from this young girls mouth, but from a trained legal mind.17 Moreover, while she affirmed her Affidavit on the stand, she also declared, on clarificatory question from the judge, that she was 14 years old when she was molested and raped by appellant.18 These facts raise doubts as to the reliability of her statements in her Affidavit. At this point, we reiterate that, by itself, an affidavit of desistance or pardon is not a ground for the dismissal of an action, once it has been instituted in court.19 In the present case, private complainant lost the right or absolute privilege to decide whether the rape charge should proceed, because the case had already reached and must therefore continue to be heard by the court a quo. Proof Beyond Reasonable Doubt Nonetheless, after a scrutiny of the records and the evidence in this case, we find ourselves unable to affirm the judgment of the trial court. In concluding that appellant had raped private complainant, the RTC was guided by the precept that -- had she not indeed been raped -- no woman would claim that she was sexually abused, allow an examination of her private parts, and go through the humiliation of a trial. This argument, however, does not by itself overcome the fundamental right of the accused to be presumed innocent until proven otherwise.20 The testimony of private complainant on the commission of the two counts of rape does not satisfy the standard of proof required to justify the conviction of appellant. Significantly, she failed to narrate just how the alleged rape took place. She said nothing at all about how he had supposedly raped her. We have carefully gone over the transcript of stenographic notes and found nothing there describing, no matter how briefly or simply, how the alleged offense had taken place. Private complainants Sworn Statements, which formed part of the records of the preliminary investigation, cannot be used to convict appellant, because they do not form part of the records of the case in the RTC.21 They were not marked, much less formally offered before it. Evidence not formally offered cannot be taken into consideration in disposing of the issues of the case.22 The Informations allege that the crimes were committed through force, threats and intimidation as set forth under Article 266-A23 of the Revised Penal Code (amended by RA 8353). Hence, to convict appellant, the prosecution had the duty of proving not only carnal knowledge of private complainant, but also his use of force or intimidation to accomplish it. On direct examination, the testimony of private complainant centered on the veracity of her Affidavit of Desistance, which she later recanted. Her description of how appellant had allegedly abused her, scant and peripheral as it was, was made only on rebuttal, as follows: "Q He further testified that on May 6, 1999, he did not have sexual intercourse with you because of the presence of your mother, what can you say to that? A No, he used me. Q What do you mean by used?
A He had sexual intercourse with me. Q He further claimed that the reason why you filed a case against him was that you want your mother to separate with him? A Yes sir. Q Why did you want your mother to be separated with Florentino Ramirez, Jr.? COURT: Recess . . . . Session resumed. May we ask everybody to please go outside the courtroom including the accused, as well as the mother. Proceed. PROS. MANAOIS: I would like to manifest that the witness is crying. COURT: Yes noted. Witness answer the question. A Because I dont like his character, and that was the reason why I would like my mother to be separated with him. Q What do you mean by that? A Because Binaboy niya ako. Q What do you mean by those words? A He destroyed my virginity. Q When you said that, do you mean to say that the accused sexually abused you and that was the reason why you wanted that your mother be separated with the accused? A Yes sir."24 This was all she testified to. It is the primordial duty of the prosecution to present its case with clarity and persuasion, to the end that conviction becomes the only logical and inevitable conclusion.25 While it is true that the accused may be convicted on the basis of the lone uncorroborated testimony of the rape victim, it must be clear, positive, convincing, and consistent with human nature and the normal course of things. Mere accusation is not enough.26 The simplistic assertion of private complainant that appellant had sexual intercourse with her on May 7 and May 26, 1999, cannot suffice to establish moral certainty as to his guilt. Her statements miserably fell short of the requirement of the law on the quantum of evidence required in the prosecution of criminal cases.27 As appellant correctly argued, her testimony
was sorely lacking in details. Equally important, there was absolutely no proof of force or intimidation. The circumstantial evidence in the present case consists of 1) the results of the medical examination conducted by Dr. Sanchez and 2) Soledad Pagaduans testimony that on the morning of May 26, 1999, she saw appellant on top of the victim and holding her thigh. Indeed, such evidence admits of the possibility that he could have had carnal knowledge of private complainant. But we cannot affirm his conviction on the basis alone of a mere possibility. To stress, there was no evidence, either, that the alleged offense had been perpetrated through force or intimidation. True, appellants defense of denial and alibi is weak and undeserving of serious consideration. But the argument that it is weak is of no moment. Settled is the rule that the evidence for the prosecution must stand or fall on its own merits; it cannot draw strength from the weakness of the evidence for the defense.28 The prosecution must demonstrate the culpability of the accused beyond reasonable doubt, for an accusation is not synonymous with guilt.29 Our legal culture demands that before any person may be convicted of any crime and deprived of life, liberty or property, the requisite quantum of proof must be presented. A strong suspicion or possibility of guilt is not sufficient.30 Correlatively, to determine the sufficiency of the evidence for the State, it is important to examine it cautiously. If it falls short of establishing moral certainty of guilt, the verdict must be one of acquittal.31 "Rape is undoubtedly a vicious crime, and it is rendered more loathsome in this case where the victim is a minor and the accused is a person whom she perceives as a figure of authority. However, our sympathy for the victim and our disgust at the bestial criminal act cannot prevail over our primordial role as interpreters of the law and dispensers of justice."32 If the prosecution fails to discharge its burden, the court must sustain the presumption of innocence of the accused, whose exoneration must then be granted as a matter of right. Finally, we cannot leave unnoticed the lackadaisical, if not inept, manner in which the prosecution presented its case before the trial court. Prosecuting attorneys are admonished to lay out painstakingly the pertinent facts at their disposal, clarify contradictions, and fill the gaps and loopholes in their evidence, in order to avert legal repercussions that may prove prejudicial to the interest of the State and of the private offended parties. WHEREFORE, the appeal is GRANTED and the appealed Decision REVERSED. Appellant Florentino O. Ramirez Jr. is ACQUITTED on reasonable doubt. His immediate RELEASE from confinement is ORDERED, unless he is being detained for some other legal cause. The director of prisons is DIRECTED to inform this Court, within five days from receipt of this Decision, of the actual date appellant is released. No costs. SO ORDERED. Davide, Jr., Ynares-Santiago, Carpio, and Azcuna, JJ., concur. Republic of the Philippines SUPREME COURT Baguio City THIRD DIVISION
G.R. No. 138261
April 17, 2001
PEOPLE OF THE PHILIPPINES, appellee, vs. PEDRO RAMIREZ, appellant. PANGANIBAN, J.: The credibility of witnesses and their testimonies is best assessed by the trial court, which had the opportunity to observe their demeanor and conduct on the stand. Moreover, reclusion perpetua is an indivisible penalty; hence, it is imposed in its entirety. The Case Pedro Ramirez appeals the Decision1 of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 4195-O, finding him guilty of murder and sentencing him to "suffer imprisonment of forty (40) years reclusion perpetua." Ormoc City Prosecutor Alberto L. Canopio filed an Information dated June 16, 1993, charging appellant with murder allegedly committed as follows: "That on or about the 21st day of May 1993, at around 7:30 o'clock in the evening, Brgy. San Jose, Ormoc City, and within the jurisdiction of this Honorable Court, the above-named accused PEDRO RAMIREZ, with treachery, evident premeditation and intent to kill, did then and there willfully, unlawfully and feloniously attack, assault, stab and wound the person of the victim herein JONATHAN 'Jojo' ALKUINO, without giving the latter sufficient time to defend himself, thereby inflicting upon said JONATHAN 'Jojo' ALKUINO mortal wounds which caused his death. Medical Certificate is hereto attached."2 When arraigned on March 20, 1997, appellant, with the assistance of counsel,3 entered a plea of not guilty. Trial on the merits ensued. On February 18, 1999, the trial court promulgated its assailed Decision, the dispositive portion of which reads as follows: "WHEREFORE, having moral certainty from all of the foregoing, the Court finds the accused Pedro Ramirez GUILTY beyond reasonable doubt of the crime of murder and hereby sentences him to suffer imprisonment of forty (40) years reclusion perpetua and to pay the aggrieved party the sum of P50,000.00 as indemnity and another sum of P50,000.00 as moral damages. If the accused is a detainee, his period of detention shall be credited to him in full if he abides in writing by the terms for convicted prisoners; otherwise, for only four-fifths (4/5) thereof." In view of the penalty imposed, the appeal was lodged directly with this Court.4 The Facts Version of the Prosecution In its Brief, the Office of the Solicitor General summarizes the prosecution's version of the facts in this wise:5
"1. On May 21, 1993 at around 7:30 in the evening, Montano Baez, after entertaining his visitors on the occasion of the town fiesta of Bgy. San Jose, Ormoc City, was strolling in the public plaza where he met Jonathan 'Jojo' Alkuino, a former resident of the barangay (pp. 611, tsn, July 22, 1997). "2. Montano Baez took him aside and invited Jojo to a drinking spree in a nearby store. They sat side by side on a bench outside the store and while exchanging pleasantries and drinking, appellant Pedro Ramirez suddenly came in front of them. Appellant ordered beer. Then he calmly approached Jojo hitting him on the right side of the body just below the ribs (pp. 6-11, tsn, supra). "3. Jojo Alkuino was brought to the Ormoc District Hospital and was examined and treated by Dr. Kierulf who issued the medical certificate (Exhibit A) with the following findings: 'The stab wound that hit the victim was at his right anterior chest wall, at the level of 4th ICS penetrating thoracic abdominal cavity, incising the right lobe of the liner with massive hemothorax and hemoperit[o]neum" "Although the victim was conscious and alive when he was admitted on May 21, 1993 at around 9:55 in the evening, he, however, died the following day at about 5:30 in the afternoon due to hypovolemic shock or massive blood loss (p. 24, tsn, July 17, 1998)." Version of the Defense In his Brief, appellant presents the following statement of facts:6 "The first witness, Remegio Montalban, testified that he [was] a resident and farmer of Brgy. Sta. Cruz, San Francisco, Camotes, Cebu, and a neighbor of Pedro Ramirez, the accused. On May 21, 1993, he remembered he and Pedro Ramirez were working on his farm in said barangay. They had been working on the farm since 1991. He knows that the accused went to Ormoc City in 1986 but he returned in 1990 and since then he never left their barangay. On cross examination, the witness admit[ed] there [was] a regular trip from San Francisco, Camotes to Ormoc City and the trip would take only more than an hour to negotiate. When asked, however, as to the birth dates of his 8 children, he could not tell all. Even on the date of the arrest of the accused, his testimony falter[ed] (TSN of July 29, 1998, pp. 6-21). "The second witness was the accused himself. His line of testimony corroborate[d] the testimonies of his first and third witnesses. Accused admit[ted] having gone to Ormoc City and that was in the year 1986 when he was hired by Poten Larrazabal to harvest his sugarcane plantation. He stayed there for four (4) years, up to 1990, in Laray, Valencia together with his wife and two children (TSN of September 2, 1998, p. 9, p. 44). He testified that on May 21, 1993 he was at Barangay Santa Cruz, Camotes, Cebu working. He even denie[d] knowing where Barangay San Jose, Ormoc City, [was][;] in short, he denie[d] the charge against him. "On cross examination, the accused testified that he did not go out too often while he was living in Sitio Laray, Valencia; that he did not even hear of Barangay San Jose (TSN of September 2, 1996. Pp. 22-23). "The last witness, Eduardo Austria, corroborate[d] the line of theory of the accused and the first witness. They had a kind of cooperative work, Ramirez, he, and Montalban. It was an
inconsequential routine work and a passing of day that occurred on May 21, 1993 and the following day (TSN of October 5, 1998, pp. 7-14) "On cross examination, the witness testified there was no cooperative work with Ramirez around in May of 1994, 1995 and 1996; that the witness [did] not even know the date of the incident involved in this case. (TSN, pp. 20-31)" The Trial Court's Ruling In convicting appellant, the trial court gave credence to the prosecution witnesses' testimonies. It ruled as follows: "We can notice that from the testimony of Montano Baez up to the last witness Amelito Biyu, there was positive identification of the assailant, the one who stabbed Jonathan Alkuino; there was knowledge about the accused and the victim. The testimonies of the witnesses were in details, not in generalities, and [the] testimony of the father, Milchisedeck Alkuino relate[d] x x x the dying declaration of his son, the victim in this case. The evidence so far adduced by the prosecution established the elements of the crime of murder: the killing of an individual [did] not [fall] under parricide and the killing was attended by treachery, the fact that the stabbing was sudden and the victim was sitting while the assailant was standing and there was therefore no means for the victim to defend himself."7 On the other hand, the RTC rejected the defense witnesses' testimonies for being "weak, unreliable and full of uncertainties." It concluded that the prosecution evidence "was not substantially overcome or overwhelmed by the defense's own proof or evidence."8 Issues In his Brief, appellant cites the following alleged errors:9 "I The Court a quo erred in giving credence to the witnesses for the prosecution. II The Court a quo erred in appreciating treachery notwithstanding the failure of the prosecution to prove the same. III The Court a quo erred in convicting the accused notwithstanding the failure of the prosecution to prove his guilt beyond reasonable doubt." In the main, the Court will resolve the following matters: (1) sufficiency of the prosecution evidence and (2) presence of treachery. In addition, it will also determine the propriety of appellant's penalty and civil liability. This Court's Ruling The appeal is devoid of merit.
First Issue: Sufficiency of Prosecution Evidence The conviction of appellant was based on the eyewitness accounts of Montano Baez and Amelito Biyu. Baez testified that he was with the victim when the crime was committed. He narrated the incident in this wise:10 "Q. Now at that particular time while you were having a round of drink with the said Jonathan "Jojo" Alkuino, what happened? A. Pedro Ramirez approached us, sir. xxx Q. A. xxx xxx
What did Pedro Ramirez do when he approached you and Jojo Alkuino? They introduced each other and immediately thereafter he stabbed him, sir. xxx xxx xxx
Q. A. Q. A.
Who delivered that stab thrust? It was Pedro Ramirez, sir. What kind of weapon did he use in stabbing the victim? A knife, sir. xxx xxx xxx
Q. When Pedro Ramirez whom you have identified earlier delivered a stab thrust toward Jonathan "Jojo" Alkuino was the latter hit? A. Q. A. Q. A. Yes sir, he was hit. Which part was x x x hit? Here sir (witness tapping at his right just below the ribs). Now, after Pedro Ramirez stabbed Jonathan "Jojo" Alkuino, what did Pedro do next? They ran away, sir."
The foregoing narration was corroborated by Biyu, who was then a few meters away from the crime scene. Pertinent portions of his testimony are reproduced hereunder:11 "Q. After having bought banana cue for your child, what happened?
A. After I bought banana cue, I also bought one bottle of beer in front of the store where Jonathan Alkuino and Pedro Ramirez were having a drinking spree. Q. A. Q. How far is that store [from] where Jonathan Alkuino and Pedro Ramirez were? About 3 meters more or less. What did you observe next?
A. While I was drinking one bottle of beer, he, Pedro Ramirez, approached Jonathan Alkuino and Montano Baez (the witness pointed to the person earlier identified as Pedro Ramirez). Q. What did he do?
A. As far as I have seen, he approached Jonathan Alkuino and he talked for awhile and after that he drew a knife and immediately stabbed. Q. A. Q. A. Q. do? Was Jonathan Alkuino hit by the stab thrust delivered by the assailant? Yes, sir. How many times did the assailant deliver his stab thrust? Only once. After seeing that incident, wherein Jonathan Alkuino sustained an injury, what did you
A. After he stabbed, he ran and Jonathan Alkuino asked for help, saying '[H]elp me because I [have been] stabbed by Pedro Ramirez.'" As earlier noted, the trial court gave credence to these testimonies. Time and time again, the Court has held that the trial court's findings on the credibility of witnesses and their testimonies are accorded great weight and respect, in the absence of a clear showing that some facts or circumstances of weight or substance have been overlooked, misunderstood or misapplied.12 Indeed, the lower court had the opportunity to observe directly the demeanor of the witnesses as they testified. In this case, appellant has not given us any valid ground to reverse or modify the trial court's assessment. Alleged Inconsistencies Appellant contends that the trial court should not have accorded credence to the prosecution witnesses, whose testimonies "were full of inconsistencies and contradictions."13 He points out discrepancies regarding (1) the manner in which appellant initiated the attack and (2) the behavior of the victim after the incident. Appellant insists that "[a]ccording to Montano Baez, Pedro approached the victim, and without saying any word, immediately stabbed the latter x x x. However, Amelito Biyu testified that Pedro Ramirez approached Jonathan Alkuino and talked to him for a while."14
This argument is not borne by the records. Contrary to the claim of the defense, Baez did not say that appellant had approached the victim and stabbed the latter "without saying a word." In fact, Baez testified that appellant and the victim had indeed talked very briefly. "Q. A. Exactly, what did Pedro Ramirez say? There were no words uttered sir, except to introduce themselves.
Q. So, when the accused Ramirez introduced himself to the victim, Jojo Alkuino also introduced himself to him, is that correct? A. Yes, sir."15
Appellant also contends that the testimony of Biyu -- that the victim was aided by friends and acquaintances after the incident was inconsistent with that of Baez, who allegedly stated that the victim "was still able to go home, without mentioning whether he was aided by anyone."16 It should be stressed, however, that Baez did not say that the victim left the crime scene alone.17 The mere fact that the former was silent on whether the victim was assisted by others does not mean that the latter was not assisted at all. Likewise, we reject appellant's claim that the testimony of Baez -- that the latter saw appellant stab the right side of the victim's body, below the ribs -- was inconsistent with that of the victim's father, Milchisedeck Alkuino, who said that "the injury of his son was at his left arm."18 This alleged inconsistency pertains to a very trivial matter which does not in any way affect the disposition of the case. It has been held that inconsistencies referring only to minor details do not weaken the credibility of witnesses. On the contrary, these inconsistencies are signs that the witnesses were not rehearsed.19 In all, we agree with the trial court in convicting appellant based on the eyewitness accounts of Baez and Biyu. The two saw the incident and positively identified appellant as the perpetrator. Appellant's Alibi In the light of the foregoing, we reject appellant's alibi that he was in Cebu when the crime was committed in Ormoc City on May 21, 1993. The well-settled rule is that alibi cannot prevail over the positive identification of appellant by credible witnesses.20 Second Issue: Treachery Appellant contends that treachery was not established in this case, considering that the stabbing was neither swift nor sudden. He points out that there was "an exchange of words between the accused and the victim."21 We are not convinced. There is treachery when one employs means, methods or forms in the execution of a crime without risk to oneself arising from the defense which the offended party might make.22
In this case, treachery was not negated by the mere fact that the attacker and the victim had spoken to each other briefly.23 The prosecution established that the attack was sudden and that the victim was defenseless, unarmed and with no opportunity to retaliate. This fact is clear from Baez's following testimony:24 "Q. A. Q. A. Q. Was there an opportunity for Jojo Alkuino to retaliate? There was none, sir. Was Jojo armed at that time? No sir, he was no[t]. In other words, he was defenseless when he was attac
ked. A. Q. A. Q. A. Q. Yes sir, he was defenseless. Why do you say that he was defenseless? Was defenseless sir, because he was sitting then. He was able to parry that stab thrust? No sir, he was not. Why not?
A. How could he parry the thrust made by Pedro Ramirez, [when] the thrust was so sudden, sir." Penalty and Civil Liability In line with current jurisprudence,25 we affirm the award of indemnity ex delicto to the heirs of the victim in the sum of P50,000. This award needs no proof other than the commission of the crime. Likewise, we sustain the award of P50,000 for moral damages, which has evidentiary basis. The victim's father testified that as a result of the crime, he suffered "heaviness of heart" as well as "mental anguish."26 We disagree with the trial court, however, in sentencing appellant "to suffer imprisonment of forty (40) years reclusion perpetua." There was no justification or need for the trial court to specify the length of imprisonment, because reclusion perpetua is an indivisible penalty. The significance of this fundamental principle was laid down by the Court in People v. Diquit:27 "Since reclusion perpetua is an indivisible penalty, it has no minimum, medium or maximum periods. It is imposed in its entirety regardless of any mitigating or aggravating circumstances that may have attended the commission of the crime. (Art. 63, Revised Penal Code) Reclusion perpetua is imprisonment for life but the person sentenced to suffer it shall be pardoned after undergoing the penalty for thirty (30) years, unless by reason of his conduct or some other serious cause, he shall be considered by the Chief Executive as unworthy of pardon (Art. 27, Revised Penal Code)." WHEREFORE, the appealed Decision is AFFIRMED, except in regard to the penalty, which is hereby MODIFIED; accordingly, appellant is sentenced to the indivisible penalty of reclusion perpetua. Costs against appellant. SO ORDERED. Melo Vitug, Gonzaga-Reyes, Sandoval-Gutierrez, JJ., concur.
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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION
G.R. Nos. 119772-73 February 7, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NIGEL RICHARD GATWARD, and U AUNG WIN, accused. NIGEL RICHARD GATWARD, accused-appellant.
REGALADO, J.:
The accession into our statute books on December 31, 1993 of Republic Act No. 7659, 1 which authorized the re-imposition of the death penalty and amended certain provisions of the Revised Penal Code and the Dangerous Drugs Act of 1972, raised the level of expectations in the drive against criminality. As was to be expected, however, some innovations therein needed the intervention of this Court for a judicial interpretation of amendments introduced to the dangerous drugs law. 2 The same spin-off of novelty, this time by the new provision fixing the duration of reclusion perpetua which theretofore had not been spelled out with specificity in the Revised Penal Code, produced some conflicting constructions, more specifically on whether such penalty is divisible or indivisible in nature. That is actually the major issue in these cases, the factual scenario and the culpability of both accused having been relegated to secondary importance for lack of any controversial features. The antecedents being undisputed, and with a careful review and assessment of the records of this case having sustained the same, we reproduce hereunder the pertinent parts of the decision of the trial court jointly deciding the criminal cases separately filed against each of the accused. Although only one of them, Nigel Richard Gatward, has appealed his conviction to us, for reasons hereinafter explained we shall likewise include the disposition by the court a quo of the case against U Aung Win. 1. The lower court stated the cases against the accused, the proceedings therein and its findings thereon, as follows: In Criminal Case No. 94-6268, the accused is charged with violating Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, allegedly in this manner: "That on or about the 31st (sic) day of August 1994, in the vicinity of the Ninoy Aquino International Airport, Pasay City, . . ., the above-named accused not being authorized by law, did then and there wilfully, unlawfully and feloniously transport heroin (2605.70 grams and 2632.0 grams) contained in separate carton envelopes with a total weight of 5237.70 grams which is legally considered as a prohibited drug." (Information dated Sept. 14, 1994) In Criminal Case No. 94-6269, the accused is indicted for transgressing Section 3 of the Dangerous Drugs Act of 1972, purportedly in this way: "That on or about the 30th day of August 1994, at the arrival area of Ninoy Aquino International Airport, Pasay City, x x x, the abovenamed accused not being authorized by law, did, then and there wilfully, unlawfully and feloniously import and bring into the Philippines 5579.80 grams of heroin which is legally considered as a prohibited drug." (Information also dated Sept. 14, 1994) Accused Nigel Richard Gatward in Criminal Case No. 94-6268 pleaded not guilty of the charge when arraigned. On the other hand, accused U Aung Win in Criminal Case No. 94-6269, assisted by Atty. Willy Chan of the Public Attorney's Office of the Department of Justice, entered a plea of guilty of the crime charged upon his arraignment. Since it is a capital
offense, the Court asked searching questions to determine the voluntariness and the full comprehension by the accused of the consequences of his plea. The accused manifested that he was entering a plea of guilty voluntarily without having been forced or intimidated into doing it. The nature of the charge was explained to him, with emphasis that the offense carries with it the penalty of reclusion perpetua to death and his pleading guilty of it might subject him to the penalty of death. The accused answered that he understood fully the charge against him and the consequences of his entering a plea of guilty. The defense counsel likewise made an assurance in open court that he had explained to U Aung Win the nature of the charge and the consequences of his pleading guilty of it. Having been thus apprised, the accused still maintained his plea of guilty of the offense charged against him. Since the offense admitted by him is punishable by death, the case was still set for trial for the reception of the evidence of the prosecution to prove the guilt and the degree of culpability of the accused and that of the defense to establish mitigating circumstances. Upon motion of the prosecution without any objection from te defense, these two cases were consolidated and tried jointly, since the offenses charged arose from a series of related incidents and the prosecution would be presenting common evidence in both. At about 3:30 in the afternoon of August 30, 1994, accused U Aung Win, a passenger of TG Flight No. 620 of the Thai Airways which had just arrived from Bangkok, Thailand, presented his luggage, a travelling bag about 20 inches in length, 14 inches in width and 10 inches in thickness, for examination to Customs Examiner Busran Tawano, who was assigned at the Arrival Area of the Ninoy Aquino International Airport (NAIA) in Pasay City. The accused also handed to Tawano his Customs Declaration No. 128417 stating that he had no articles to declare. When Tawano was about to inspect his luggage, the accused suddenly left, proceeding towards the direction of Carousel No. 1, the conveyor for the pieces of luggage of the passengers of Flight No. 620, as if to retrieve another baggage from it. After having inspected the luggages of the other incoming passengers, Tawano became alarmed by the failure of U Aung Win to return and suspected that the bag of the accused contained illegal articles. The Customs Examiner reported the matter to his superiors. Upon their instructions, the bag was turned over to the office of the Customs Police in the NAIA for x-ray examination where it was detected that it contained some powdery substance. When opened, the bag revealed two packages containing the substance neatly hidden in between its partitions. Representative samples of the substance were examined by Elizabeth Ayonon, a chemist of the Crime Laboratory Service of the Philippine National Police (PNP) assigned at the Arrival Area of the NAIA, and by Tita Advincula, another chemist of' the PNP Crime Laboratory Service at Camp Crame, and found to be positive for heroin. The two chemists concluded that the entire substance, with a total weight of 5,579.80 grams, contained in the two packages found in the bag of U Aung Win, is heroin. A manhunt was conducted to locate U Aung Win. The personnel of the Bureau of Immigration and Deportation in the NAIA were asked to place the accused in the hold order list. The offices of the different airlines in the airport were also alerted to inform the Enforcement and Security Service and the Customs Police Division of the NAIA of any departing passenger by the name of U Aung Win who would check in at their
departure counters. A team was likewise sent to the Park Hotel in Belen St., Paco, Manila, which accused U Aung Win had indicated in his Customs Declaration as his address in the Philippines. But the accused was not found in that hotel. At about 7:45 p.m. of the same date of August 30, 1994, Rey Espinosa, an employee of the Lufthansa Airlines, notified the commander of the NAIA Customs Police District Command that a certain Burmese national by the name of U Aung Win appeared at the check-in counter of the airline as a departing passenger. Immediately, a team of law enforcers proceeded to the Departure Area and apprehended the accused after he had been identified through his signatures in his Customs Declaration and in his Bureau of Immigration and Deportation Arrival Card. Customs Examiner Tawano also positively identified the accused as the person who left his bag with him at the Arrival Area of the NAIA. During the investigation of U Aung Win, the agents of the Customs Police and the Narcotics Command (NARCOM) gathered the information that the accused had a contact in Bangkok and that there were other drug couriers in the Philippines. Following the lead, a team of lawmen, together with U Aung Win, was dispatched to the City Garden Hotel in Mabini St., Ermita, Manila, to enable U Aung Win to communicate with his contact in Bangkok for further instructions. While the police officers were standing by, they noticed two persons, a Caucasian and an oriental, alight from a car and enter the hotel. U Aung Win whispered to Customs Police Special Agent Edgar Quinones that he recognized the two as drug couriers whom he saw talking with his contact in Bangkok named Mau Mau. The members of the team were able to establish the identity of the two persons as accused Nigel Richard Gatward and one Zaw Win Naing, a Thailander, from the driver of the hotel service car used by the two when they arrived in the hotel. It was gathered by the law enforcers that Gatward and Zaw Win Naing were scheduled to leave for Bangkok on board a KLM flight. On August 31, 1994, operatives of the NAIA Customs Police mounted a surveillance operation at the Departure Area for Gatward and Zaw Win Naing who might be leaving the country. At about 7:45 p.m. of the same date, Special Agent Gino Minguillan of the Customs Police made a verification on the passenger manifest of KLM Royal Dutch Airlines Flight No. 806, bound for Amsterdam via Bangkok, which was scheduled to depart at about 7:55 that evening. He found the name "GATWARD/NRMR" listed therein as a passenger for Amsterdam and accordingly informed his teammates who responded immediately. Customs Police Captain Juanito Algenio requested Victorio Erece, manager of the KLM airline at the NAIA, to let passenger Gatward disembark from the aircraft and to have his checked-in luggage, if any, unloaded. The manager acceded to the request to off-load Gatward but not to the unloading of his check-in bag as the plane was about to depart and to do so would unduly delay the flight. However, Erece made an assurance that the bag would be returned immediately to the Philippines on the first available flight from Bangkok. Upon his disembarkment, Gatward was invited by the police officers for investigation. At about 3:00 o'clock in the afternoon of September 1, 1994, Gatward's luggage, a travelling bag almost of the same size as that of U Aung Win, was brought back to the NAIA from Bangkok through the Thai Airways, pursuant to the request of Erece which was telexed in the evening of August 31, 1994, to the KLM airline manager in Bangkok. Upon its retrieval, the law enforcers subjected the bag to x-ray examinations in the presence of accused Gatward and some Customs officials. It
was observed to contain some powdery substance. Inside the bag were two improvised envelopes made of cardboard each containing the powdery substance, together with many clothes. The envelopes were hidden inside the bag, one at the side in between a double-wall, the other inside a partition in the middle. Upon its examination by Chemists Ayonon and Advincula pursuant to the request of Police Senior Inspector John Campos of the NARCOM, the powdery substance contained in the two cardboard envelopes, with a net weight of 5,237.70 grams, was found to be heroin. 3 The court below made short shrift of the defense raised by herein appellant. Apart from the wellknown rule on the respect accorded to the factual findings of trial courts because of the vantage position they occupy in that regard, we accept its discussion thereon by reason of its clear concordance with the tenets of law and logic. Again we quote: Accused Gatward denied that the bag containing the heroin was his luggage. However, that the said bag belongs to him is convincingly shown by the fact that the serial number of the luggage tag, which is KL 206835, corresponds to the serial number of the luggage claim tag attached to the plane ticket of the accused. Moreover, as testified to by Manager Erece of the KLM airline, the luggage of Gatward located in Container No. 1020 of KLM Flight No. 806 was the same luggage which was returned to the NAIA on September 1, 1994, on board Thai Airways TG Flight No. 620, pursuant to the request made by him to the KLM manager in Bangkok. The testimony of Erece should be given weight in accordance with the presumption that the ordinary course of business has been followed. (Sec. 3(q), Rule 131, Revised Rules on Evidence). No circumstance was shown by the defense which would create, a doubt as to the identity of the bag as the luggage of Gatward which he checked in for KLM Flight No. 806 for Amsterdam with stopover in Bangkok. Accused Gatward was present during the opening of his bag and the examination of its contents. He was also interviewed by some press reporters in connection with the prohibited drug found in the bag. Gatward did not then disclaim ownership of the bag and its heroin contents. His protestations now that the bag does not belong to him should be deemed as an afterthought which deserves no credence. Gatward posited that he checked in a different bag when he bearded KLM Flight No. 806, explaining that upon his apprehension by the agents of the NAIA Customs Police, he threw away the claim tag for the said luggage. He alleged that the said bag contained, among other things, not only important documents and papers pertaining to his cellular phone business in the pursuit of which he came to the Philippines, but also money amounting to 1,500.00. Gatward stressed that the bag did not have any illegal articles in it. If this were so, it was unusual for him, and certainly not in accordance with the common habit of man, to have thrown away the claim tag, thereby in effect abandoning the bag with its valuable contents. Not having been corroborated by any other evidence, and being rendered unbelievable by the circumstances accompanying it as advanced by him, the stand of accused Gatward that his luggage was different from that which contained the 5,237.70 grams of heroin in question commands outright rejection. 4 The trial court was also correct in rejecting the challenge to the admissibility in evidence of the heroin retrieved from the bag of appellant. While no search warrant had been obtained for that purpose, when appellant checked in his bag as his personal luggage as a passenger of KLM Flight No. 806 he thereby agreed to the inspection thereof in accordance with customs rules and
regulations, an international practice of strict observance, and waived any objection to a warrantless search. His subsequent arrest, although likewise without a warrant, was justified since it was effected upon the discovery and recovery of the heroin in his bag, or in flagrante delicto. The conviction of accused U Aung Win in Criminal Case No. 94-6269 is likewise unassailable. His culpability was not based only upon his plea of guilty but also upon the evidence of the prosecution, the presentation of which was required by the lower court despite said plea. The evidence thus presented convincingly proved his having imported into this country the heroin found in his luggage which he presented for customs examination upon his arrival at the international airport. There was, of course, no showing that he was authorized by law to import such dangerous drug, nor did he claim or present any authority to do so. 2. It is, however, the penalties imposed by the trial court on the two accused which this Court cannot fully accept. This is the presentation made, and the rationalization thereof, by the court below: According to Section 20 of the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659, the penalties for the offenses under Sections 3 and 4 of the said Act shall be applied if the dangerous drugs involved, with reference to heroin, is 40 grams or more. Since the heroin subject of each of these two cases exceeds 40 grams, it follows that the penalty which may be imposed on each accused shall range from reclusion perpetua to death. To fix the proper penalty, it becomes necessary to determine whether any mitigating or aggravating circumstance had attended the commission of the offenses charged against the accused. With respect to Gatward, no aggravating or mitigating circumstance was shown which might affect his criminal liability. Relative to U Aung Win, no aggravating circumstance was likewise established by the prosecution. However, the voluntary plea of guilty of the said accused, which was made upon his arraignment and therefore before the presentation of the evidence of the prosecution, should be appreciated as a mitigating circumstance. Under Article 63 of the Revised Penal Code, which prescribes the rules for the application of indivisible penalties, in all cases in which the law prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied, if neither mitigating nor aggravating circumstances are present in the commission of the crime, or if the act is attended by a mitigating circumstance and there is no aggravating circumstance. However, this rule may no longer be followed in these cases, although the penalty prescribed by law is reclusion perpetua to death, since reclusion perpetua, which was an indivisible penalty before, is now a divisible penalty with a duration from 20 years and one (1) day to 40 years, in accordance with Article 27 of the Revised Penal Code, as amended by Republic Act No. 7659. Consequently, the penalty of "reclusion perpetua to death" should at present be deemed to fall within the purview of the "penalty prescribed" which "does not have one of the forms specially provided for" in the Revised Penal Code, the periods of which "shall be distributed," applying by analogy the prescribed rules, in line with Article 77 of the Revised Penal Code. Pursuant to this principle, the penalty of "reclusion perpetua to death" shall have the following periods: Death, as the maximum; thirty (30) years and one (1) day to forty (40) years, as the medium; and twenty (20) years and one (1) day to thirty (30) years, as the minimum.
As there is no mitigating or aggravating circumstance shown to have attended the commission of the offense charged against Gatward, the penalty to be imposed on him shall be within the range of the medium period. On the other hand, since U Aung Win is favored by one mitigating circumstance without any aggravating circumstance to be taken against him, the penalty which may be imposed on him shall be within the range of the minimum period. (Art. 64(1) & (2), Revised Penal Code) The accused in these cases may not enjoy the benefit of Act No. 4103, the Indeterminate Sentence Law, for under Section 2 of the said Act, its provisions shall not apply to those convicted of offenses punished with life imprisonment, which has been interpreted by the Supreme Court as similar to the penalty of reclusion perpetua as far as the non-application of the Indeterminate Sentence Law is concerned. (People vs. Simon, G.R. No. 93028, July 29, 1994) 5 On those considerations, the trial court handed down its verdict on March 3, 1995 finding both accused guilty as charged, thus: WHEREFORE, in Criminal Case No. 94-6268, accused Nigel Richard Gatward is found guilty beyond reasonable doubt of transporting, without legal authority therefor, 5,237.70 grams of heroin, a prohibited drug, in violation of Section 4 of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659; and there being no aggravating or mitigating circumstance shown to have attended the commission of the crime, he is sentenced to suffer the penalty of imprisonment for thirty-five (35) years of reclusion perpetua and to pay a fine of Five Million Pesos (P5,000,000.00). In Criminal Case No. 94-6269, accused U Aung Win is found guilty beyond reasonable doubt of importing or bringing into the Philippines 5,579.80 grams of heroin, a prohibited drug, without being authorized by law to do so, contrary to Section 3 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659; and in view of the presence of one (1) mitigating circumstance of voluntary plea of guilty, without any aggravating circumstance to offset it, he is sentenced to suffer the penalty of imprisonment for twenty-five (25) years of reclusion perpetua and to pay a fine of One Million Pesos (P1,000,000.00). The heroin involved in these cases is declared forfeited in favor of the government and ordered turned over to the Dangerous Drugs Board for proper disposal. With costs de oficio. 6 It is apropos to mention at this juncture that during the pendency of this appeal, and while awaiting the filing of appellant's brief on an extended period granted to his counsel de parte, the Court received on September 5, 1995 a mimeographed form of a so-called "Urgent Motion to Withdraw Appeal." It bears the signature of appellant but without the assistance or signature of his counsel indicated thereon. No reason whatsoever was given for the desired withdrawal and considering the ambient circumstances, the Court resolved on September 27, 1995 to deny the same for lack of merit. 7 On June 10, 1996, a letter was received from one H.M. Consul M.B. Evans of the British Embassy, Consular Section, Manila, seeking an explanation for the aforesaid resolution and with the representation that "a convicted person who did not, on reflection, wish to continue with an appeal would not need to prove merit but could simply notify the courts of his wish to withdraw and that would be the end of the matter." To be sure, this is not the first time that members of foreign
embassies and consulates feel that they have a right to intrude into our judicial affairs and processes, to the extent of imposing their views on our judiciary, seemingly oblivious or arrogantly disdainful of the fact that our courts are entitled to as much respect as those in their own countries. Such faux pas notwithstanding, a reply was sent to Mr. Evans informing him that, while there is no arrangement whereby a foreign consular officer may intervene in a judicial proceeding in this Court but out of courtesy as enjoined in Republic Act No. 6713, the unauthorized pleading of appellant was made under unacceptable circumstances as explained in said reply; that it is not mandatory on this Court to dismiss an appeal on mere motion of an appellant; that the Court does not discuss or transmit notices of judicial action except to counsel of the parties; and that, should he so desire, he could coordinate with appellant's counsel whose address was furnished therein. 8 In a resolution dated June 19, 1996, appellant's counsel was ordered to show cause why he should not be disciplinarily dealt with or held for contempt for his failure to file appellant's brief. On July 24, 1996, said counsel and the Solicitor General were required to comment on the aforestated motion of appellant to withdraw his appeal, no brief for him having yet been filed. Under date of September 6, 1996, the Solicitor General filed his comment surprisingly to the effect that the People interposed no objection to the motion to withdraw appeal. Appellant's counsel, on the other hand, manifested on November 4, 1996 that he was willing to file the brief but he could not do so since appellant asked for time to consult his pastor who would later inform said counsel, but neither that pastor nor appellant has done so up to the present. It would then be worthwhile to restate for future referential purposes the rules in criminal cases on the withdrawal of an appeal pending in the appellate courts. The basic rule is that, in appeals taken from the Regional Trial Court to either the Court of Appeals or the Supreme Court, the same may be withdrawn and allowed to be retracted by the trial court before the records of the case are forwarded to the appellate court. 9 Once the records are brought to the appellate court, only the latter may act on the motion for withdrawal of appeal. 10 In the Supreme Court, the discontinuance of appeals before the filing of the appellee's brief is generally permitted. 11 Where the death penalty is imposed, the review shall proceed notwithstanding withdrawal of the appeal as the review is automatic and this the Court can do without the benefit of briefs or arguments filed by the appellant. 12 In the case at bar, however, the denial of the motion to withdraw his appeal by herein appellant is not only justified but is necessary since the trial court had imposed a penalty based on an erroneous interpretation of the governing law thereon. Thus, in People vs. Roque, 13 the Court denied the motion of the accused to withdraw his appeal, to enable it to correct the wrongful imposition by the trial court of the penalty of "reclusion temporal to reclusion perpetua" for the crime of simple rape, in clear derogation of the provisions of Article 335 of the Revised Penal Code and the Indeterminate Sentence Law. Similarly, in another case, 14 the motion to withdraw his appeal by the accused, whose guilt for the crime of murder was undeniable and for which he should suffer the medium period of the imposable penalty which is reclusion perpetua, was not allowed; otherwise, to permit him to recall the appeal would enable him to suffer a lesser indeterminate sentence erroneously decreed by the trial court which imposed the minimum of the penalty for murder, that is, reclusion temporal in its maximum period. In the cases at bar, the same legal obstacle constrained the Court to deny appellant's motion to withdraw his appeal. The trial court had, by considering reclusion perpetua as a divisible penalty, imposed an unauthorized penalty on both accused which would remain uncorrected if the appeal had been allowed to be withdrawn. In fact, it would stamp a nihil obstantium on a penalty that in law does not exist and which error, initially committed by this Court in another case on which the trial court relied, had already been set aright by this Court.
3. As amended by Republic Act No. 7569, the respective penalties imposable under Sections 3 and 4 of the Dangerous Drugs Act, in relation to Section 20 thereof, would range from reclusion perpetua to death and a fine of P500,000.00 to P10,000,000.00 if the quantity of the illegal drug involved, which is heroin in this case, should be 40 grams or more. In the same amendatory law, the penalty of reclusion perpetua is now accorded a "defined duration" ranging from twenty (20) years and one (1) day to forty (40) years, through the amendment introduced by it to Article 27 of the Revised Penal Code. This led the trial court to conclude that said penalty is now divisible in nature, and that "(c)onsequently, the penalty of "reclusion perpetua to death" should at present be deemed to fall within the purview of the "penalty prescribed" which "does not have one of the forms specially provided for" in the Revised Penal Code, and the periods of which "shall be distributed" by an analogous application of the rules in Article 77 of the Code. Pursuant to its hypothesis, the penalty of "reclusion perpetua to death shall have the following periods: death, as the maximum; thirty (30) years and one (1) day to forty (40) years, as the medium; and twenty (20) years and one (1) day to thirty (30) years, as the minimum." 15 We cannot altogether blame the lower court for this impasse since this Court itself inceptively made an identical misinterpretation concerning the question on the indivisibility of reclusion perpetua as a penalty. In People vs. Lucas, 16 the Court was originally of the view that by reason of the amendment of Article 27 of the Code by Section 21 of Republic Act No. 7569, there was conferred upon said penalty a defined duration of 20 years and 1 day to 40 years; but that since there was no express intent to convert said penalty into a divisible one, there having been no corresponding amendment to Article 76, the provisions of Article 65 could be applied by analogy. The Court then declared that reclusion perpetua could be divided into three equal portions, each portion composing a period. In effect, reclusion perpetua was then to be considered as a divisible penalty. In a subsequent re-examination of and a resolution in said case on January 9, 1995, occasioned by a motion for clarification thereof, 17 the Court en banc realized the misconception, reversed its earlier pronouncement, and has since reiterated its amended ruling in three succeeding appellate litigations. 18 The Court, this time, held that in spite of the amendment putting the duration of reclusion perpetua at 20 years and 1 day to 40 years, it should remain as an indivisible penalty since there was never any intent on the part of Congress to reclassify it into a divisible penalty. This is evident from the undisputed fact that neither Article 63 nor Article 76 of the Code had been correspondingly altered, to wit: Verily, if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal Code would lose its reason and basis for existence. To illustrate, the first paragraph of Section 20 of the amended R.A. No. 6425 provides for the penalty of reclusion perpetua to death whenever the dangerous drugs involved are of any of the quantities stated therein. If Article 63 of the Code were no longer applicable because reclusion perpetua is supposed to be a divisible penalty, then there would be no statutory rules for determining when either reclusion perpetua or death should be the imposable penalty. In fine, there would be no occasion for imposing reclusion perpetua as the penalty in drug cases, regardless of the attendant modifying circumstances. This problem revolving around the non-applicability of the rules in Article 63 assumes serious proportions since it does not involve only drug cases, as aforesaid. Under the amendatory sections of R.A. No. 7659, the penalty of reclusion perpetua to death is also imposed on treason by a Filipino (Section 2), qualified piracy (Section 3), parricide (Section 5), murder (Section 6), kidnapping and serious illegal detention
(Section 8), robbery with homicide (Section 9), destructive arson (Section 10), rape committed under certain circumstances (Section 11), and plunder (Section 12). In the same resolution, the Court adverted to its holding in People vs. Reyes, 19 that while the original Article 27 of the Revised Penal Code provided for the minimum and the maximum ranges of all the penalties therein, from arresto menor to reclusion temporal but with the exceptions of bond to keep the peace, there was no parallel specification of either the minimum or the maximum range of reclusion perpetua. Said article had only provided that a person sentenced to suffer any of the perpetual penalties shall, as a general rule, be extended pardon after service thereof for 30 years. Likewise, in laying down the procedure on successive service of sentence and the application of the three-fold rule, the duration of perpetual penalties is computed at 30 years under Article 70 of the Code. Furthermore, since in the scales of penalties provided in the Code, specifically those in Articles 25, 70 and 71, reclusion perpetua is the penalty immediately higher than reclusion temporal, then its minimum range should by necessary implication start at 20 years and 1 day while the maximum thereunder could be co-extensive with the rest of the natural life of the offender. However, Article 70 provides that the maximum period in regard to service of the sentence shall not exceed 40 years. Thus, the maximum duration of reclusion perpetua is not and has never been 30 years which is merely the number of years which the convict must serve in order to be eligible for pardon or for the application of the three-fold rule. Under these accepted propositions, the Court ruled in the motion for clarification in the Lucas case that Republic Act No. 7659 had simply restated existing jurisprudence when it specified the duration of reclusion perpetua at 20 years and 1 day to 40 years. The error of the trial court was in imposing the penalties in these cases based on the original doctrine in Lucas which was not yet final and executory, hence open to reconsideration and reversal. The same having been timeously rectified, appellant should necessarily suffer the entire extent of 40 years of reclusion perpetua, in line with that reconsidered dictum subsequently handed down by this Court. In passing, it may be worth asking whether or not appellant subsequently learned of the amendatory resolution of the Court under which he stood to serve up to 40 years, and that was what prompted him to move posthaste for the withdrawal of his appeal from a sentence of 35 years. 4. The case of U Aung Win ostensibly presents a more ticklish legal poser, but that is not actually so. It will be recalled that this accused was found guilty and sentenced to suffer the penalty of reclusion perpetua supposedly in its minimum period, consisting of imprisonment for 25 years, and to pay a fine of P1,000,000.00. He did not appeal, and it may be contended that what has been said about the corrected duration of the penalty of reclusion perpetua which we hold should be imposed on appellant Gatward, since reclusion perpetua is after all an indivisible penalty, should not apply to this accused. Along that theory, it may be asserted that the judgment against accused U Aung Win has already become final. It may also be argued that since Section 11(a) of Rule 122 provides that an appeal taken by one accused shall not affect those who did not appeal except insofar as the judgment of the appellate court is favorable and applicable to the latter, our present disposition of the correct duration of the penalty imposable on appellant Gatward should not affect accused U Aung Win since it would not be favorable to the latter. To use a trite and tired legal phrase, those objections are more apparent than real. At bottom, all those postulations assume that the penalties decreed in the judgment of the trial court are valid, specifically in the sense that the same actually exist in law and are authorized to be meted
out as punishments. In the case of U Aung Win, and the same holds true with respect to Gatward, the penalty inflicted by the court a quo was a nullity because it was never authorized by law as a valid punishment. The penalties which consisted of aliquot one-third portions of an indivisible penalty are self-contradictory in terms and unknown in penal law. Without intending to sound sardonic or facetious, it was akin to imposing the indivisible penalties of public censure, or perpetual absolute or special disqualification, or death in their minimum or maximum periods. This was not a case of a court rendering an erroneous judgment by inflicting a penalty higher or lower than the one imposable under the law but with both penalties being legally recognized and authorized as valid punishments. An erroneous judgment, as thus understood, is a valid judgment. 20 But a judgment which ordains a penalty which does not exist in the catalogue of penalties or which is an impossible version of that in the roster of lawful penalties is necessarily void, since the error goes into the very essence of the penalty and does not merely arise from the misapplication thereof. Corollarily, such a judgment can never become final and executory. Nor can it be said that, despite the failure of the accused to appeal, his case was reopened in order that a higher penalty may be imposed on him. There is here no reopening of the case, as in fact the judgment is being affirmed but with a correction of the very substance of the penalty to make it conformable to law, pursuant to a duty and power inherent in this Court. The penalty has not been changed since what was decreed by the trial court and is now being likewise affirmed by this Court is the same penalty of reclusion perpetua which, unfortunately, was imposed by the lower court in an elemental form which is non-existent in and not authorized by law. Just as the penalty has not been reduced in order to be favorable to the accused, neither has it been increased so as to be prejudicial to him. Finally, no constitutional or legal right of this accused is violated by the imposition upon him of the corrected duration, inherent in the essence and concept, of the penalty. Otherwise, he would be serving a void sentence with an illegitimate penalty born out of a figurative liaison between judicial legislation and unequal protection of the law. He would thus be the victim of an inadvertence which could result in the nullification, not only of the judgment and the penalty meted therein, but also of the sentence he may actually have served. Far from violating any right of U Aung Win, therefore, the remedial and corrective measures interposed by this opinion protect him against the risk of another trial and review aimed at determining the correct period of imprisonment. WHEREFORE, the judgment of the.court a quo, specifically with regard to the penalty imposed on accused-appellant Nigel Richard Gatward in Criminal Case No. 94-6268 and that of accused U Aung Win in Criminal Case No. 94-6269, is hereby MODIFIED in the sense that both accused are sentenced to serve the penalty of reclusion perpetua in its entire duration and full extent. In all other respects, said judgment is hereby AFFIRMED, but with costs to be assessed against both accused in all instances of these cases. SO ORDERED. Romero, Puno, Mendoza and Torres, Jr., JJ., concur. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION
G.R. No. 117402 July 21, 1997 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLLIE ALVARADO Y LLANER, accused-appellant.
FRANCISCO, J.: At around 6:30 in the evening of May 26, 1991, Zosima Estao was stabbed dead by one of five (5) men who arrived at his house located at Andromeda, municipality of Angono, Rizal. An information for murder qualified by treachery and evident premeditation was thereafter filed against herein appellant Rollie Alvarado and four (4) others whose true names and whereabouts were unknown. As his co-accused all remained at large, only appellant underwent trial. From the collective testimonies of victim Zosimo's wife Felicidad Estao 1 daughter Rosalie Estao 2 and sister Leonora Arocha, 3 the prosecution's version of the killing was that on the aforementioned time, date and place and while Felicidad and Zosimo were doing certain household chores, appellant and his four (4) companions arrived and hurled the following challenge on Zosimo: "Lumabas ka, kalbo, kung matapang ka." As soon as Zosimo has gotten out of their house, appellant's companions held him on both arms. Rosalie who was riding a bicycle and Leonora who was in her house which was only three (3) meters away from Zosimo's residence, saw appellant stab the helpless Zosimo on the stomach with a bolo which caused the latter to fall on the ground. One Joselito dela Cruz, Zosimo's friend who tried to pacify appellant, was likewise stabbed on the stomach. Zosimo was thereafter rushed to the Angono District Hospital but he expired before reaching it. At the hospital, Rosalie saw appellant who she identified to the policemen present as her father's assailant. The prosecution presented two (2) other witnesses. Zosimo's brother Paulito Estao testified on the funeral expenses amounting to P17,000.00 he shouldered. 4 Dr. Dario Gajardo, who performed the post mortem examination of Zosimo, testified that as per his findings, Zosimo's body bore a wound on the left ear and a fatal stab wound on the right lumber region caused by a single bladed weapon the trajectory of which, was "upward toward the posterior portion of the body . . . . 5 Appellant, as defense, denied any involvement in the killing and averred that he likewise was a victim in the incident in question. In brief, he claimed that he was on his way to the house of an aunt after taking a snack at a store in Arveemar Subdivision when he was a commotion involving two (2) drunk persons armed with bolos chasing each other. Appellant tried to ignore the incident by proceeding with his journey, but found himself running away after noticing one of the drunk men giving chase on him. He was hacked on the left foot by his pursuer whom he identified as one "Pacing", Zosimo's brother-in-law. Appellant was thereafter brought by his relatives to the Angono hospital but was transferred to the Orthopedic hospital on that same evening. He came to know that he was a suspect in the killing of Zosimo when policemen were already guarding him at both hospitals. He was immediately brought to the police station after his discharge. Despite Pacing's assault on his person, he did not file any case against the former. Appellant also denied having any previous acquaintance with the victim Zosimo and his wife Rosalie Estao, and claimed that he was being implicated to the crime simply because some of the other suspects were admittedly his friends. 6 Rafael Velasco, a laborer-friend of appellant, essentially corroborated the latter's story of denial and as to the circumstances surrounding appellant's hacking by "Pacing", having viewed the incident
some twenty (20) meters away from atop the wall near the river situated between Arveemar Subdivision and Phase III of Doa Justa Village, Angono Rizal. He, however, was not among those who brought appellant to the hospital as he was to visit a friend at that time. 7 PO3 Edgar Fetalvero, one of the responding policemen present at the Angono hospital, testified that Rosalie mentioned the name "Sonny Alvarado" upon being asked who her father's assailant was. Furthermore, when Rosalie was accompanied to the operating room where appellant was staying and asked to identify the suspect, she said she does not know the wounded patient. This witness admitted not having executed any affidavit on the matter as he deemed it proper to leave it entirely to investigator Edmund Lorena who, after all, was also present at the hospital and personally heard all of Rosalie's statements. He testified for the defense upon the invitation of appellant and his counsel Atty. Diloy. 8 The last witness for the defense was Walter Nuyda. Prior to his testimony, the prosecution, apparently questioning the propriety of Nuyda being allowed to testify, made manifest the fact of the presence in court of this witness during the past hearings despite Fiscal Venzon's queries whether there were other witnesses present to which defense counsel replied "none". The trial court nonetheless allowed Nuyda to take the witness stand. Nuyda, who brought along a sketch of where the killing took place for reference, thus testified that while he was taking a walk homeward bound, he heard two (2) women shouting "Namatay na si Sadam." "Sadam" referred to the victim Zosimo as the latter was allegedly known to be a trouble-maker when inebriated. He allegedly was appellant walking naturally and Rosalie riding a bicycle already crying, at around 6:00 in the evening, but denied having seen the actual killing of Zosimo. 9 Having found the prosecution's story specifically the eyewitness accounts of Rosalie and Leonora to be more credible than appellant's denial, the trial court in its now assailed decision of January 7, 1994 convicted appellant of murder, sentenced him to suffer the penalty of reclusion perpetua and to pay Zosimo's heirs P17,000.00 as actual damages, P50,000.00 for Zosimo's death and costs. Before us, appellant assigns the following errors, the gist of which evidently goes into credibility: I The court a quo graved erred in finding accused-appellant Rollie Alvarado guilty of murder beyond reasonable doubt despite insufficiency of evidence and also in disregarding the theory of the defense. II The court a quo gravely erred in giving weight and credence to the testimony of the prosecution witnesses which are biased and unrealible. This is another occasion to stress anew that the trial court, more than the reviewing tribunal, is in a better position to gauge credibility of witnesses and to properly appreciate the relative weight of the often conflicting evidence for both parties, 10 having had the direct opportunity to observe them on the stand and determine if they were telling the truth or not. 11 And since appellate courts do not deal with live witnesses but only with the cold pages of a written record, 12 this Court gives the highest respect to the trial court's assessment of the credibility of eyewitness. 13 We have gone over the records and found that the trial court correctly upheld the prosecution's case. Rosalie positively identified appellant in open court as the one among the five (5) men who stabbed her father Zosimo. She thus testified:
FISCAL ANG: Q And can you tell us how was your father challenged? A They were shouting at him, sir. Q And after your father came out of your house, what happened next? A He was pulled out by the man and they stabbed him. Q Now, you said that he was pulled by the man, how was he pulled and who pulled at your father? A I could recognize only one of them, sir. Q Now, how may were holding at your father? A Four (4), sir. Q How about the fifth one? A He was the one who stabbed my father, sir. Q Now, this person who stabbed to (sic) your father, do you know him? A Yes, sir. Q Now, is he in Court? A Yes, sir. Q Will you please point that person if he is in Court? INTERPRETER: The witness is pointing at a man wearing a white shirt, who identified himself as Rollie Alvarado. Q Now, Miss Witness, how (sic) the accused Rollie Alvarado stabbed your father? A While he was being held by the other man he stabbed him on the left side of the stomach. Q Now, what kind of weapon did he use? A Bolo, sir. 14
Leonora corroborated Rosalie's story by giving a similar account: Q Now, you said many persons went to your place, can you recall who went to see your brother, can you recall who were they? A Yes, sir. Q Who are they? A They were Rollie Alvarado, Jun, Sammy also the brother of Rollie Alvarado, they were five of them, I could no longer recall the name of the rest. Q So you were able to recall only 3 of the 5? A Yes, sir. Q Now, if you will see the faces, will you be able to recall who they are? A Yes, sir. Q Please point to the person on this room if any of the 5 persons is here in the Court room. A (Witness pointing to a man wearing a white shirt and maong pants, who identified himself as Rollie Alvarado.) Q After the 5 persons went to your house and call your brother and challenged your brother, what happened next? A He was held by the 4 companion of Rollie Alvarado and he was stabbed by Rollie Alvarado. Q When you say he, you mean Zosimo Estao? A The one who stabbed Zosimo Estao. Q Now, to clarify, correct me if I am wrong, your brother Zosimo Estao was retrained by 4 persons and after which Rollie Alvarado stabbed your brother, am I correct? A Yes, sir. Q Now, how was your brother retrained by these 4 person (sic)? A He was held by the 4 men on both sides. Two on each sides hold on the arms and shoulder. Q So your brother was not able to move whatsoever?
A. No, sir. Q And was not able to defend himself at any thrust if any? A No more, sir. Q After which Rollie Alvarado stabbed your brother? A Yes, sir. 15 Well settled is the rule that greater weight is given to the positive identification of the accused by the prosecution witnesses than the accused's denial and explanation concerning the commission of the crime. 16 This is so inasmuch as mere denials are self-serving evidence that cannot obtain evidentiary weight greater than the declaration of credible witnesses who testified on affirmative matters. 17 Appellant would, however, attempt to undermine the prosecution's case by claiming that: 1) Rosalie and Leonora are unreliable and biased witnesses as they are the daughter and sister respectively, of victim Zosimo. 2) Rosalie failed to identify appellant at the Angono hospital and in fact mentioned another name "Sonny Alvarado" as testified to by defense witness PO3 Fetalvero, and 3) the prosecution failed to present as its witness Joselito dela Cruz Zosimo's friend who was himself stabbed in the incident but who fortunately survived who, according to appellant, is the "only credible witness who could identify the assailants of the victim." These arguments do not persuade. On the first argument, the consistent ruling is that mere relationship of witnesses to the victim, whether by consanguinity or affinity, does not necessarily impair their credibility as witnesses. This is specially so when the witnesses, like Rosalie and Leonora, were present at the scene of the crime. 18 Another way of putting it is that relationship per se of witnesses with the victim does not necessarily mean they are biased; on the contrary, their relationship with the victim would deter them from implicating anybody to the crime. 19 Furthermore, the records do not provide any compelling answer as to why Rosalie and Leonora would falsely accuse appellant. Equally settled is that where there is no evidence, and nothing to indicate that the principal witnesses for the prosecution were actuated by improper motive, the presumption is that they were not so actuated and their testimony is entitled to full faith and credit. 20 On the second, assuming 21 that Rosalie indeed failed to recognize appellant at the Angono hospital and named another person as her father's assailant, it could nonetheless be explained by the fact that she was at that time not in her normal equanimity being in a state of shock of grief over her father's violent and untimely death. As this Court has once said, it is not a common experience for a person to witness the perpetration of an atrocious crime. The shocking experience usually distorts his/her normal pattern of reaction. 22 Thus, Rosalie's mistake in identifying another person as one of the accused does not maker her an entirely untrustworthy witness. It does not make her whole testimony a falsity. As honest mistake is not inconsistent with a truthful testimony. 23 Besides, what is controlling is Rosalie's in-court identification of appellant, duly corroborated by Leonora, as the person who delivered the death blow in Zosimo.
On the third, it is not for the defense to press any speculation that a certain person not presented by the prosecution would likely be the most credible witness to bolster the case of the state. Suffice it to state that the matter of deciding whom to present as witness for the prosecution is not for the accused or for the trial court to decide, as it is the prerogative of the prosecutor. 24 This Court will likewise leave undisturbed the following finding of the trial court, that: While there are some differences in the testimony of Rosalie Estao in Court with sworn statements she gave to the police regarding as to where she is at the time the victim was stabbed, yet the Court feels that the same are minor matters and would rather strengthened (sic) the credibility of her testimony. 25 Such finding is further supported by the dictum that discrepancies between sworn statements or affidavits and testimonies made at the witness stand do not necessarily discredit the witnesses, since ex-parte affidavits are generally incomplete. 26 We however, take exception to the trial court's pronouncement that what qualified the killing of Zosimo to murder is the aggravating circumstance of abuse of superior strength. As earlier mentioned, the information alleged "treachery and evident premeditation", not abuse of superior strength. It is the existence of treachery which qualifies the crime to murder since Zosimo was killed after already being in a helpless condition, 27 it appearing that Zosimo's hands were being held by appellant's companions before he was stabbed by appellant. Granting that abuse of superior strength was also alleged, it is nonetheless absorbed in treachery. 28 Lastly, on the issue of penalty, the Office of the Solicitor General makes the following observation and recommendation. We observe that a modification in the penalty imposed on the appellant is called for in view of the amendment of Article 27 of the Revised Penal Code by Republic Act No. 7659 [1993]. As amended by Section 21 of Republic Act No. 7659 [1993] and explained by this Honorable Court in People v. Cua, G.R. No. 82292, March 1, 1995, the duration of the penalty of reclusion perpetua shall be from twenty years and one day to forty years. In view of the fact that the penalty of reclusion perpetua now has a specified duration, a judgment imposing the penalty of reclusion perpetua should specify a straight penalty within the range of the penalty of reclusion perpetua. Given the presence of treachery and evident premeditation, any one of which serves to qualify the crime to murder, we respectfully recommend that the penalty of thirty-four (34) years of reclusion perpetua be meted out to the appellant. 29 We cannot accede to this recommendation in view of this Court's En Banc Resolution in "People v. Lucas" dated January 9, 1995 30 where it was clarified that "although Section 17 of R.A. No. 7659 has fixed the duration of reclusion perpetua from twenty (20) years and one (1) day to forty (40) years, there was no clear legislative intent to alter its original classification as an indivisible penalty. It shall then remain as an indivisible penalty". Reclusion perpetua, therefore, retains its nature as having no minimum, medium and maximum periods. It is imposed in its entirety regardless of any mitigating or aggravating circumstances that may have attended the commission of the crime. 31 WHEREFORE, the modification of a particular disquisition made by the trial court notwithstanding (re: treachery as the qualifying circumstance and not abuse of superior strength), appellant's conviction for murder and the penalty of imprisonment and pecuniary liabilities imposed on him are hereby AFFIRMED.
SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. Nos. 112453-56 June 28, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERARDO LATUPAN Y SIBAL, alias JERRY, accused-appellant. PARDO, J.: The case is an appeal from the decision1 of the Regional Trial Court, Tuao, Cagayan, Branch 11 convicting Gerardo Latupan y Sibal, alias Jerry of the complex crime of double murder and sentencing him to "life imprisonment" and to indemnify the heirs of the two victims in the amount of fifty thousand (P50,000.00) pesos each. The court also convicted accused Gerardo Latupan of inflicting physical injuries to Jaime Asuncion, and sentenced him to "ten days imprisonment" and to pay two hundred (P200.00) pesos as indemnity. On April 13, 1992, Provincial Prosecutor Alejandro A. Pulido of Cagayan filed with the Regional Trial Court, Tuao, Cagayan four separate informations charging Gerardo Latupan y Sibal alias Jerry with two counts of frustrated murder and two counts of murder, committed as follows: Criminal Case No. 379-T "That on or about April 29, 1991, in the Municipality of Tuao, Province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Gerardo Latupan alias Jerry, armed with a pointed knife, with intent to kill, with evident premeditation and with treachery did then and there willfully, unlawfully and feloniously attack, assault, box, maul, kick and hit with his aforesaid arm one Leo Asuncion, inflicting upon him injuries on the different parts of his body. "That the accused had performed all the acts of execution which would have produced the crime of Murder as a consequence but which, nevertheless, did not produce it by reason of causes independent of his own will. "Contrary to law."2 Criminal Case No. 380-T "That on or about April 29, 1991, in the Municipality of Tuao, Province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Gerardo Latupan alias Jerry, armed with a pointed knife, with intent to kill, with evident premeditation and with treachery did then and there willfully, unlawfully and feloniously attack, assault, box, maul and kick one, Jaime Asuncion inflicting upon him injuries on the different parts of his body.
"That the accused had performed all the acts of execution which would have produced the crime of Murder as a consequence but which, nevertheless, did not produce it by reason of causes independent of his own will. "Contrary to law."3 Criminal Case No. 381-T "That on or about April 29, 1991, in the Municipality of Tuao, Province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Gerardo Latupan alias Jerry, armed with a pointed knife, with intent to kill, with evident premeditation and with treachery did then and there willfully, unlawfully and feloniously attack, assault and stab one, Jose Asuncion inflicting upon him stab wound on his body which caused his death. "Contrary to law."4 Criminal Case No. 382-T "That on or about April 29, 1991, in the Municipality of Tuao, Province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Gerardo Latupan alias Jerry, armed with a pointed knife, with intent to kill, with evident premeditation and with treachery did then and there willfully, unlawfully and feloniously attack, assault and stab one, Lilia Asuncion inflicting upon her stab wounds on her body which caused her death. "Contrary to law."5 At the arraignment on May 25, 1993, accused pleaded not guilty to the charge of frustrated murder.6 During the pre-trial conference of the four cases, accused offered to change his plea of not guilty to guilty of the complex crime of double murder and frustrated murder. The prosecution did not interpose any objection. Thus, on July 20, 1993, the trial court re-arraigned the accused. He withdrew his plea of not guilty and instead pleaded guilty to the single offense of multiple murder with multiple frustrated murder.7 Thereafter, the trial court ordered the prosecution to present evidence to establish the culpability of the accused. The facts are as follows: On April 29, 1991, at around 4:00 in the afternoon, Ceferino Dagulo (hereafter Ceferino) was chopping firewood outside his house in Angang, Tuao, Cagayan. Suddenly, he heard the shouts of a woman and a child coming from the north. Moments later, Ceferino saw accused Gerardo Latupan y Sibal walking in his direction, carrying a thin, bloodied knife. Accused Latupan entered the house of Ceferino and started chasing Ceferino's wife, who was able to run to another house nearby. Unable to catch Ceferino's wife, accused Latupan turned to Ceferino and said, "I will kill you all." At that time, accused Latupan's clothes, chest, hands and legs were full of blood. Accused Latupan attempted to thrust the knife into Ceferino, who was able to parry it. Later on, accused Latupan told Ceferino to bring him to the
authorities and tried to give the knife to Ceferino. Ceferino refused to touch the knife and told accused to go to the authorities by himself. Hearing this advice, accused ran away. The house of Emilio Asuncion (hereafter Emy) was 100 meters from Ceferino's house. At around 4:00 in the afternoon of the same day, Emy Asuncion was returning to his house from a store. He reached his house and found his wife, Lilia, dead on the ground with several stab wounds on her body. His one-year old son, Leo, was lying on top of Lilia Asuncion. Emy picked up Leo and saw that the left side of Leo's face was lacerated. He saw Jaime, his three-year old son and asked where Jose, his eldest son, was. At that moment, Emy heard the voice of Jose from upstairs of the house, asking for medicine. He ran upstairs and saw that Jose was wounded. He asked Jose who stabbed him. Jose replied, "Uncle Jerry, Tatang." Seeing that Jose needed immediate medical treatment, Emy brought him to the house of Ceferino and then returned to his house to get his two other children, Leo and Jaime. They left the corpse of Lilia Asuncion inside Emy's house. Lilia Asuncion was the sister of Ceferino's wife. Meanwhile, Ceferino tried to ask a barangay councilman for assistance. Failing to obtain assistance, Ceferino went back to his house and found Emy Asuncion and his children there. Then, Ceferino went to a military camp to borrow a vehicle to bring the children to the hospital. The military men provided them with a jeep. Thus, the three children were taken to the Nuestra Seora de Piat Hospital in Cabalansan. Riding in the jeep were five soldiers, the accused Latupan, Emy Asuncion, Ceferino Dagulo, Ceferino's wife, and the three children, Leo, Jaime and Jose Asuncion. During the trip to the hospital, Emy's son, Jose, saw accused Latupan inside the jeep. Jose pointed to accused Latupan as the one who stabbed him. At the hospital, the doctors treated the injuries of Leo and Jaime. However, the doctors advised Emy and Ceferino to bring Jose to another hospital due to the seriousness of his wounds. So, they proceeded to Cagayan Valley Regional Hospital. Sadly, Jose was dead on arrival.8 He was only nine years old. Jaime, 5 year-old son of Emy Asuncion, testified that he was three years old when the incident occurred. He stated that accused Latupan stabbed his mother, stepped on him, threw his brother, Leo, outside the window and stabbed his other brother, Jose.9After presenting testimonial and documentary evidence, the prosecution rested its case. The defense did not present any testimonial or documentary evidence, merely relying on accused's plea of guilty. Thus, the case was considered submitted for decision. On August 25, 1993, the trial court rendered a decision, the dispositive portion of which reads: "WHEREFORE, finding the accused GERARDO LATUPAN alias JERRY GUILTY beyond reasonable doubt of the complex offense of Double Murder, the Court hereby sentences him to suffer life imprisonment and to indemnify the heirs of the two victims in the amount of P50,000.00 each or a total of P100,000.00. "For the physical injuries suffered by Jaime Asuncion, the accused is sentenced to suffer ten (10) days imprisonment. Likewise, for the physical injuries suffered by Leon Asuncion, the accused is also sentenced to suffer ten (10) days imprisonment, both to be suffered simultaneously with the more grievous sentence of life imprisonment, plus P200.00 indemnity to each of the two victims. "SO ORDERED.
"Given in chambers this 25th day of August, 1993, at Tuao, Cagayan, Philippines." "(sgd.) ORLANDO D. BELTRAN "Judge"10 Hence, this appeal.11 Accused-appellant pleaded guilty to the single offense of multiple murder with multiple frustrated murder. Although this Court has set aside convictions based on plea of guilty in capital offenses because of improvidence thereof and when such plea is the sole basis of the condemnatory judgment, the circumstances of this case merit a different result. "Where the trial court receives evidence to determine precisely whether or not the accused erred in admitting his guilt, the manner in which the plea of guilty is made (improvidently or not) loses legal significance, for the simple reason that the conviction is based on the evidence proving the commission by the accused of the offense charged."12 Crucial to the prosecution is the testimony of the eyewitness, Jaime Asuncion, who witnessed the incident and even suffered injuries from the unprovoked attack of accused-appellant. He was familiar with accused-appellant and categorically related to the court the events that occurred on the afternoon of April 29, 1991. Jaime narrated how accused-appellant stabbed his mother, threw his brother out of the window, stepped on him, and stabbed his other brother. Moreover, accused-appellant was seen not far from the scene of the crime with a bloodied knife and clothes, and mumbling threats at onlookers, including Ceferino Dagulo and his wife. Thus, accused-appellant is liable for the deaths of Lilia and Jose Asuncion, and the physical injuries of Jaime and Leo Asuncion. From the manner accused attacked the family, he left them with no means of defense or escape. Considering the treacherous manner by which the victims were killed, the accused-appellant is liable for murder and physical injuries. The trial court, however, erred in convicting accused-appellant of the "complex crime of double murder" and separate offenses of serious physical injuries. Article 48 of the Revised Penal Code provides: "When a single act constitutes two or more grave or less grave felonies or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period." The instant case does not fall under any of the two mentioned instances when a complex crime is committed.13 The killing of Lilia Asuncion and Jose Asuncion and the wounding of Jaime and Leo Asuncion resulted not from a single act but from several and distinct acts of stabbing. "Where the death of two persons does not result from a single act but from two different shots, two separate murders, and not a complex crime, are committed."14 Thus, accused-appellant is liable, not for a complex crime of double murder, but for two separate counts of murder, and separate counts of physical injuries. Further, the trial court incorrectly assumed that the aggravating circumstance of evident premeditation was included in the plea of guilty. Qualifying and aggravating circumstances, which are taken into consideration for the purpose of increasing the degree of penalty to be imposed, must be proven with equal certainty as the commission of the act charged as criminal offense.15
Thus, evident premeditation cannot be presumed against accused-appellant. To warrant a finding of evident premeditation, it must appear not only that the accused decided to commit the crime prior to the moment of its execution but also that this decision was the result of meditation, calculation, reflection, or persistent attempt.16 In this case, there was no proof, direct or circumstantial, offered by the prosecution to show when accused-appellant meditated and reflected upon his decision to kill the victim and the intervening time that elapsed before this plan was carried out. When it is not shown as to how and when the plan to kill was hatched or what time had elapsed before it was carried out, evident premeditation cannot be considered.17 Under Article 248 of the Revised Penal Code, the penalty for murder at the time of the commission of the crime in April 1991 was reclusion temporal maximum to death. The trial court convicted accused-appellant of murder and sentenced him to "life imprisonment." The proper imposable penalty is reclusion perpetua, not life imprisonment. Obviously, the trial court intended to impose reclusion perpetua. However, the penalty of life imprisonment is not the same as reclusion perpetua. They are distinct in nature, in duration and in accessory penalties.18 First, "life imprisonment" is imposed for serious offenses penalized by special laws, while reclusion perpetua is prescribed under the Revised Penal Code. Second, "life imprisonment" does not carry with it any accessory penalty. Reclusion perpetua has accessory penalties. Third, "life imprisonment" does not appear to have any definite extent or duration, while reclusion perpetua entails imprisonment for at least thirty (30) years after which the convict becomes eligible for pardon, although the maximum period thereof shall in no case exceed forty (40) years.19 We likewise note that the trial court sentenced accused to "ten days of imprisonment" for each count of slight physical injuries. We reiterate the rule that it is necessary for the courts to employ the proper legal terminology in the imposition of penalties because of the substantial difference in their corresponding legal effects and accessory penalties.20 The appropriate name of the penalty must be specified inasmuch as under the scheme of penalties in the Revised Penal Code, the principal penalty for a felony has its own specific duration and corresponding accessory penalties.21 Thus, the courts must employ the proper nomenclature specified in the Revised Penal Code, such as "reclusion perpetua," not "life imprisonment" or "ten days of arresto menor," not "ten days of imprisonment." Hence, the proper penalty for each murder committed in April 1991, considering the absence of aggravating and mitigating circumstances, is reclusion perpetua, with its accessory penalties. Further, accused-appellant is liable for two counts of slight physical injuries and must be sentenced to twenty (20) days of arresto menor, each, likewise with its accessory penalties under the Revised Penal Code.22 We sustain the trial court's award of fifty thousand (P50,000.00) pesos as death indemnity for each of the victims. No further proof is necessary other than the fact of death of the victim and the accused's responsibility therefor.23 In addition, we award moral damages in the amount of P50,000.00 pesos for each victim, without need of proof of consequent physical suffering and mental anguish of the heirs of the victims, in line with recent rulings.24 WHEREFORE, the Court AFFIRMS the decision of the Regional Trial Court, Tuao, Cagayan, Branch 11 in Criminal Case Nos. 112453-56 with MODIFICATION. The accused-appellant Gerardo Latupan y Sibal is convicted of two counts of murder, for the death of Lilia Asuncion and Jose Asuncion, and is sentenced to reclusion perpetua in each case, and to indemnify the heirs of Lilia and Jose Asuncion in the amount of P50,000.00 pesos, each case, and in addition thereto, the amount of P50,000.00 pesos, each case, as moral damages. Accused-appellant is further convicted of two
counts of slight physical injuries and is sentenced to twenty (20) days of arresto menor, in each case, plus P2,000.00 pesos as indemnity to each of the two victims, Jaime and Leo Asuncion. Costs against accused-appellant. SO ORDERED. Davide, Jr., C.J.,(Chairman), Puno, and Kapunan, JJ., concur. Ynares-Santiago, J., on official business abroad. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 139907 March 28, 2003
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCELO BATES, accused-appellant. MARCELO BATES, JR. (At-Large), accused. AUSTRIA-MARTINEZ, J.: Before us is an appeal taken by accused Marcelo Bates from the Judgment of the Regional Trial Court of Ormoc City (Branch 35) finding him guilty beyond reasonable doubt of the crime of Murder and sentencing him to suffer imprisonment of "forty years of reclusion perpetua". The Information states: That on or about the 28th day of November 1995, at around 5:30 oclock in the afternoon, in Brgy. Esperanza, Ormoc City, and within the jurisdiction of this Honorable Court, the abovenamed accused MARCELO BATES and MARCELO BATES, JR., conspiring together and confederating with and mutually helping and aiding one another, with treachery, evident premeditation and intent to kill, being then armed with long bolos, did then and there willfully, unlawfully and feloniously stab and hack to death the person of the victim herein, JOSE BOHOLST without giving the latter sufficient time to defend himself, thereby inflicting upon him multiple wounds which caused his instantaneous death. Death Certificate and Autopsy Report are hereto attached. In violation of Article 248, Revised Penal Code.1 Upon arraignment, Marcelo Bates entered a plea of not guilty. The version of the prosecution: Around 2:00 in the afternoon of November 28, 1995, Edgar Fuentes, Simon Fuentes and Jose Boholst left Barangay Esperanza, Ormoc City to deliver copra to a certain Fely Rodado at Barangay Green Valley, Ormoc City. After delivering copra around 5:00 in the afternoon, the three men headed back to Barangay Esperanza. While they were along a trail leading to the house of Carlito Bates, the latter suddenly emerged from the thick banana plantation surrounding the trail, aiming his firearm at Jose Boholst who was then walking ahead of his companions. Jose grabbed Carlitos right hand and
elbow and tried to wrest possession of the firearm. While the two were grappling for possession, the gun fired, hitting Carlito who immediately fell to the ground. At that instant, Marcelo Bates and his son Marcelo Bates, Jr., brother and nephew of Carlito, respectively, emerged from the banana plantation, each brandishing a bolo. They immediately attacked Jose hacking him several times. Jose fell to the ground and rolled but Marcelo and his son kept on hacking him. Marcelo, then, turned to Simon and Edgar and shouted "huwes de kutsilyo". Upon hearing the same, Simon and Edgar ran.2 Around 5:30 of the same afternoon, Concepcion Boholst, wife of Jose, was at their home preparing dinner. Upon being informed by a certain Violeta Fuentes that Jose was waylaid, she immediately went to the place where the incident reportedly happened which is less than a hundred meters from their house. There, she saw Marcelo Bates and his son Marcelo, Jr. hacking Jose who was lying face up. She pleaded for them to stop but they did not listen. She did not see Carlito. She went home fearing for her life, thinking that Marcelo and his son might turn their ire on her.3 The version of the defense: Around 5:00 in the afternoon of November 28, 1995, Ponciano Sano went to the house of Marcelo Bates. Ponciano was sent by Barangay Captain Feliseo Sano to get a chicken from Marcelo. While they were trying to catch a chicken, they noticed Jose Boholst, Edgar Fuentes, and Simon Fuentes approach the house of Carlito Bates which is about twenty meters away from Marcelos house. Thereafter, they saw Jose drag Carlito out of the latters house while both were arguing and grappling. Marcelo immediately ran towards Jose and Carlito but when Marcelo was about to approach them, Jose shot Carlito with a gun. Edgar and Simon ran away. Upon seeing Carlito fall to the ground, Marcelo attacked Jose but the latter also fired a shot at him. However, Marcelo was able to duck and avoid being shot. Jose was about to shoot Marcelo a second time but the latter retaliated by hacking Jose with a bolo hitting him on his neck and causing him to fall to the ground. Marcelo then went to the aid of his brother Carlito but upon seeing that he was already dead, he went back to where Jose was lying and again hacked him. Thereafter, Ponciano picked up the gun used by Jose and surrendered it to Barangay Captain Sano. Marcelo also surrendered himself to the said barangay captain. During the whole incident Marcelo Bates, Jr. was not present.4 Upholding the prosecution evidence, the trial court rendered its Judgment, dated June 4, 1999, the dispositive portion of which reads as follows: Wherefore, all the foregoing considered, the Court finds the accused Marcelo Bates GUILTY beyond reasonable doubt of the crime of murder as charged and hereby sentences him to suffer imprisonment of forty (40) years reclusion perpetua after appreciating the mitigating circumstance of voluntary surrender, and to pay the offended party the sum of P50,000.00 as indemnity and another sum of P50,000.00 as moral damages. If the accused is a detainee, the period of his imprisonment shall be credited to him in full provided he abides in writing by the terms and conditions for convicted prisoners, otherwise, for only four-fifths (4/5) thereof. SO ORDERED. Aggrieved, Marcelo Bates brought the present appeal. He raises the following: ASSIGNMENT OF ERRORS I
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING EXCULPATORY WEIGHT TO THE DEFENSE INTERPOSED BY ACCUSED APPELLANT. II THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE INCREDIBLE AND INCONSISTENT TESTIMONIES OF THE PROSECUTION WITNESSES. III THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY DESPITE FAILURE OF THE PROSECUTION TO PROVE ITS ATTENDANCE IN THE COMMISSION OF THE CRIME CHARGED ON THE ASSUMPTION THAT ACCUSED-APPELLANT DID NOT ACT IN SELF-DEFENSE. IV THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING PASSION AND OBFUSCATION AS A MITIGATING CIRCUMSTANCE IN FAVOR OF ACCUSEDAPPELLANT ON ASSUMPTION THAT THE LATTER DID NOT ACT IN SELF-DEFENSE.5 Appellant claims self-defense. Under Article 11 of the Revised Penal Code, anyone who acts in defense of his person or rights do not incur any criminal liability provided that the following circumstances concur: First, unlawful aggression on the part of the victim; second, reasonable necessity of the means employed to prevent or repel it; and third, lack of sufficient provocation on the part of the person defending himself.6 It is a settled rule that when an accused admits killing the victim but invokes self-defense, it is incumbent upon him to prove by clear and convincing evidence that he acted in self-defense; and as the burden of the evidence is thus shifted to him, he must rely on the strength of his own evidence and not on the weakness of the prosecution.7 After scrutiny of the evidence presented, we agree with the trial court that self-defense was not established by appellant. He testified that he initially inflicted only a single hack wound on the neck of Jose causing the latter to fall to the ground. He then went to the aid of his brother Carlito but upon finding that he was already dead, he went back to where Jose fell. Appellant admitted that at that time, Jose was in a lying position still alive but hardly moving.8 Under such a situation, Jose could have hardly put up any defense, much less, make an aggressive move against appellant. Despite Joses condition, appellant repeatedly hacked Jose. Granting that Jose was the one who first committed unlawful aggression, appellant was no longer justified in further inflicting wounds upon Jose because at that time, the latter was already lying helpless on the ground. At that moment, unlawful aggression on the part of Jose had ceased. It is a settled rule that when unlawful aggression ceases, the defender has no longer any right to kill or wound the former aggressor, otherwise, retaliation and not self-defense is committed.9 Hence, the fact that unlawful aggression on the part of Jose already ceased when Marcelo repeatedly hacked him rules out the possibility of selfdefense, whether complete or incomplete.10 Thus, the first assigned error is without merit. In his second assigned error, appellant questions the credibility of the prosecution witnesses. We have time and again, held that the issue of credibility is a question best addressed to the province of the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses deportment on the stand while testifying which opportunity is denied to the appellate courts; and absent any substantial reason which would justify the reversal of the trial courts assessments and conclusions, the reviewing court is generally bound by the formers
findings, particularly when no significant facts and circumstances were shown to have been overlooked or disregarded which when considered would have affected the outcome of the case.11 In the present case, the trial court found the testimonies of the prosecution witnesses to be more credible than those of the defense witnesses. We find no cogent reason to depart from the findings of the trial court. Prosecution witness Edgar Fuentes testified that Jose and Carlito grappled for possession of the gun. Appellant insists that this is belied by the absence of gunpowder burns on the wound of Carlito. Appellant cites the medical findings and the testimony of Dr. Rogelio Mercado who conducted the autopsy on the bodies of Jose and Carlito, to the effect that the absence of gunpowder burns on the wound of Carlito would indicate that he and Jose did not fight for the possession of the gun. We are not convinced. The finding of the physician is not certain and conclusive as it is contradicted by no less than appellant himself when he testified, as follows: Q. After you noticed Jose Boholst with two companions went to your house of your elder brother, what did you notice if there was any? A. This Jose Boholst dragged my elder brother from the door to the yard.
Q. And how far were you at that time when you noticed that Jose Boholst drag your brother? A. At the same distance of about 20 meters from our house.
Q. While you said that Jose Boholst dragged your brother Carlito Bates, were they arguing with each other? A. Q. A. Yes, sir and they were grabbling(sic). Do you know what they were arguing about? Ive heard that they were arguing about the palm of the coconut tree.
Q. What else did you know if you notice that Carlito Bates was arguing as a matter of fact they were grabbling(sic) each other, what did you do? A. Jose Boholst shot my elder brother.
Q. My question is, after you noticed that Jose Boholst and Carlito Bates were arguing, what if any did you do? A. Q. A. I approached them. Why? I was about to settle them down, but when I arrived and my brother already fell down.
Q. A.
What happened to your brother, why did he fell down? Because he was shot by Jose Boholst.12
Further, appellant claims that the testimony of Concepcion Boholst should not be given credence. He argues that if Concepcion really witnessed the killing of her husband, she should have seen the body of Carlito Bates who was then lying dead on the ground at the place where her husband was allegedly being hacked and stabbed. We are not persuaded. We agree with the Office of the Solicitor General that it was natural for Concepcion to fail to notice the body of Carlito when she was faced with the shocking scene of her husband being hacked and stabbed to death by appellant and his son. The Supreme Court has long recognized that different people react differently to a given type of situation, and there is no standard form of behavioral response when one is confronted with a strange, startling or frightful experience.13 In the present case, it is perfectly normal for Concepcion to be oblivious of the persons who were present at the crime scene at that time because of the frightening sight that confronted her. Appellant points out inconsistencies in the testimonies of prosecution witnesses Edgar and Concepcion. However, it is more apparent than real. Edgar and Concepcion witnessed the crime at different stages of its execution. The failure of Edgar and Concepcion to see each other at the crime scene can be gathered from their testimonies that at the time Concepcion arrived at the scene of the crime, Edgar, together with his brother Simon, already left. Granting that there was indeed an inconsistency in the testimonies of Edgar and Concepcion such is only a minor flaw that does not affect their credibility. Both did not detract from the main fact at issue and were consistent in positively identifying appellant and his son as the ones who killed Jose. Discrepancies and inconsistencies in the testimonies of witnesses referring to minor details, and not in actuality touching upon the central fact of the crime, do not impair their credibility.14 As to the failure of the prosecution to present other witnesses, the rule is settled that the prosecution is imbued with the discretion to choose whom to present as witnesses.15 The prosecution need not present each and every witness but only as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may, therefore, be dispensed with for being merely corroborative in nature. This Court has ruled that the non-presentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the prosecutions cause.16 Hence, the non-presentation of Violeta Fuentes, Simon Fuentes and Junior Comesyon as witnesses for the prosecution is not fatal to its cause nor may it be considered suppression of evidence, as their testimonies would merely corroborate the earlier testimonies of Edgar and Concepcion. However, we agree with the contention of the appellant that the trial court erred in appreciating the qualifying circumstance of treachery. The pertinent provision of Article 14 of the Revised Penal Code reads: Art. 14. Aggravating circumstances. The following are aggravating circumstances: 16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. Under established jurisprudence, two conditions must concur to establish treachery: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate, and (2) the means of execution was deliberately or consciously adopted.17 We have held in a line of cases that: [c]ircumstances which qualify criminal responsibility, such as treachery, cannot rest on mere conjecture, no matter how reasonable or probable such conjecture may be. They must be based on facts of unquestionable existence. Such circumstances must be proved as indubitably as the crime itself. Treachery as a qualifying circumstance should be established by proof beyond reasonable doubt.18 In the present case, the only evidence presented by the prosecution to prove that there was treachery was the testimony of Edgar Fuentes that while Jose and Carlito were grappling, he saw appellant and his son emerge from the thick banana plantation and attack Jose with the bolos they were carrying. This, alone, does not prove treachery. In People vs. Albao,19 we held that: As a rule a sudden attack by the assailant, whether frontally or from behind, is treachery, if such mode of attack was coolly and deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or retreat. The rule does not apply, however, where the sudden attack was not preconceived and deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of the provocative act of the victim, or where their meeting was purely accidental. In People vs. Magaro,20 we held that: The circumstance that an attack was sudden and unexpected to the person assaulted did not constitute the element of alevosia necessary to raise homicide to murder, where it did not appear that the aggressor consciously adopted such mode of attack to facilitate the perpetration of the killing without risk to himself. Treachery cannot be appreciated if the accused did not make any preparation to kill the deceased in such manner as to insure the commission of the killing or to make it impossible or difficult for the person attacked to retaliate or defend himself. There is nothing to indicate from the testimony of Edgar that appellant and his son employed means and methods to insure that they will be able to attack Jose without risk to themselves arising from any defense that Jose might make. There is no evidence to show that they purposely remained hidden in the thick banana plantation awaiting for the opportune time to attack Jose with impunity. Hence, for failure of the prosecution to prove treachery or any other circumstance which would qualify the killing of Jose to murder, appellant should only be held liable for the crime of homicide punishable under Article 249 of the Revised Penal Code. Appellant was able to prove the mitigating circumstance of voluntary surrender, as shown by the testimony of Barangay Captain Feliseo Sano.21 Passion and obfuscation may not be properly appreciated in favor of appellant. To be considered as a mitigating circumstance, passion or obfuscation must arise from lawful sentiments and not from a
spirit of lawlessness or revenge or from anger and resentment.22 In the present case, clearly, Marcelo was infuriated upon seeing his brother, Carlito, shot by Jose. However, a distinction must be made between the first time that Marcelo hacked Jose and the second time that the former hacked the latter. When Marcelo hacked Jose right after seeing the latter shoot at Carlito, and if appellant refrained from doing anything else after that, he could have validly invoked the mitigating circumstance of passion and obfuscation. But when, upon seeing his brother Carlito dead, Marcelo went back to Jose, who by then was already prostrate on the ground and hardly moving, hacking Jose again was a clear case of someone acting out of anger in the spirit of revenge. Concepcion Boholst testified that the death of her husband, Jose, caused her deep anguish and sleepless nights.23 The award of moral damages in the amount of P50,000.00 is therefore justified. And pursuant to existing jurisprudence, the heirs of the deceased are entitled to civil indemnity in the amount of P50,000.00 as correctly awarded by the trial court plus P25,000.00 for temperate damages, representing the expenses they incurred for the wake and burial of the deceased.24 Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal. Applying the Indeterminate Sentence Law and appreciating the mitigating circumstance of voluntary surrender which is not offset by any aggravating circumstance, the maximum period of the penalty to be imposed shall be taken from the minimum of reclusion temporal which is 12 years and 1 day to 14 years and 8 months; while the minimum period shall be taken from the penalty next lower in degree which is prision mayor or 6 years and 1 day to 12 years. For the guidance of both the bench and bar, it must be mentioned that the trial court committed an error in imposing the penalty of "forty (40) years of reclusion perpetua". We reiterate our earlier pronouncements in a number of cases that while Section 21 of RA No. 7659 amended Article 27 of the Revised Penal Code by fixing the duration of reclusion perpetua from 20 years and 1 day to 40 years, reclusion perpetua remains to be an indivisible penalty in the absence of a clear legislative intent to alter its original classification as an indivisible penalty.25 Hence, in applicable cases such as the present case, "reclusion perpetua" should simply be imposed without specifying its duration. WHEREFORE, the decision of the Regional Trial Court of Ormoc City, Branch 35, is MODIFIED. Appellant Marcelo Bates is hereby found guilty beyond reasonable doubt of the crime of Homicide and is sentenced to suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor as the minimum to twelve (12) years and one (1) day of reclusion temporal as the maximum; and is ordered to pay the Heirs of Jose Boholst the amounts of P50,000.00 as civil indemnity for the latters death, P50,000.00 for moral damages and P25,000.00 as temperate damages. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 142870 November 14, 2001
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DINDO PAJOTAL y FETALCORIN; RANDY GABAY (At large) and LINDO GABAY (At large), accused. DINDO PAJOTAL y FETALCORIN, accused-appellant.
PER CURIAM: This case is here on automatic review of the decision,1 dated February 7, 2000, of the Regional Trial Court of Oriental Mindoro, Branch 43, finding accused-appellant Dindo Pajotal guilty of the special complex crime of robbery with homicide and sentencing him to suffer the penalty of death. The Information2 against accused-appellant and two others charged the following: "That on or about the 21st day of October, 1996, at about 2:45 in the afternoon, at Sitio Mabaho, Barangay Cabalwa, municipality of Mansasalay, province of Oriental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused Randy Gabay alias Randy Montessa, Lindo Gabay and Dindo Pajotal, conspiring, and confederating together and helping each other, with intent to kill and to gain, did, then and there willfully, unlawfully and feloniously rode a jeep owned and driven by Winefred Espina and by means of force and violence upon their victim, take and carry away FIFTEEN THOUSAND (P15,000.00) PESOS, Philippine Currency, and accused, pursuant to their conspiracy during the commission of the robbery and on the such occasion thereof and for the purpose of enabling them to take, steal and carry away with them the said amount of P15,000.00, did, then and there willfully, unlawfully and feloniously attack, assault and stab one Winefred Espina with a bladed instrument, inflicting upon the latter [stab] wounds on the different parts of his body thereby causing direct and immediate death of said Winefred Espina. "That in the commission of the crime the qualifying circumstances of treachery and evident premeditation and the aggravating circumstance of abuse of superior strength were present. "CONTRARY TO LAW." The facts are as follows: On October 21, 1996, at around 2:45 p.m., Winefred Espina was driving a passenger jeepney, accompanied by his nephew, Arnold Bugayon, who was also seated in front beside the former. They had just come from Bulalacao where they delivered some merchandise. Just before they reached Sitio Mabaho, Mansalay, Oriental Mindoro, three men stopped them on the road. The three men boarded the vehicle, with one of them clinging to the left front side near Espina, while the other man sat beside Bugayon. The third man hung at the rear of the jeepney with his feet standing on the platform or " parilla." Bugayon identified the man who sat to his right side on the front seat as Dindo Pajotal.3 In Sitio Mabaho, one of the three men ordered Espina to stop the vehicle, to which the latter replied, "Pare walang ganyanan." (Pal, don't do this.) The three men then asked for money, but Espina refused to give it to them. Accused-appellant thus poked a knife at Bugayon and threatened to kill him if Espina did not hand over the money. As Bugayon frantically asked his uncle to do as the men asked, Espina handed his money to the person on his left. Although he got the money, the man stabbed Espina on the left thigh, apparently to prevent any attempt by Espina to get the money back. Espina decided to fight back and alighted from the jeepney.4 At this point, accused-appellant also alighted from the vehicle and attempted to stab Bugayon. He missed as Bugayon got out of the vehicle by passing through the driver's side. Bugayon saw accused-appellant and his companions ganging up on Espina. Accused-appellant stabbed Espina.
Bugayon tried to help his uncle, but one of the men, who was also holding a knife, stopped him and said "O ano, lalaban ka?" (What? Do you want to fight?) Espina told Bugayon to run away. Upon hearing this, Bugayon, very much afraid, retreated and what his uncle told him.5 Bugayon asked for help from persons he met, but no one was willing to come to the aid of Espina. Finally, a passenger bus bound for Roxas passed by, and Bugayon boarded it. He alighted at the PNP station in Mansalay and reported the incident to the police.6 At 6:30 p.m. of the same day, Dr. Domingo Asis, Rural Health Physician of Mansalay, Oriental Mindoro, conducted an autopsy on the body of Winefred Espina. Dr. Asis' postmortem report (Exh. C), which revealed that the victim suffered fifteen (15) stab wounds, contained the following findings: "(1) Wound, incised, 4.0 cm long, edges clean cut, 1.5 cm gape, 0.5 cm depth, middle forehead, showing the bone; "(2) Wound, incised, 4.0 cm long, edges clean cut, 1.0 cm gape, 0.5 cm depth, forehead, right, above the eyebrow; "(3) Wound, lacerated, triangular in shape, 1 cm. depth, above the eyebrow left; "(4) Fracture, depressed, localized, frontal bone, base of the nose; "(5) Wound, lacerated, 2 cm long, 1 cm depth, with fractured bone, lateral eyebrow, right; "(6) Wound, lacerated, 1 cm. long, 0.5 cm depth, cheek, right; "(7) Wound, stabbed, 1.5 cm long, 1.5 cm depth, posterior chest, at the level of the scapula; "(8) Wound, incised, edges clean cut, 4.0 cm long, 5 cm depth, 1.5 cm gape, lateral distal third, forearm, left; "(9) Wound, incised, edges clean cut, 2 cm long, 0.5 cm gape, 0.3 cm depth, radial area, wrist, left; "(10) Wound, stabbed, 2.0 cm long. 8 cm depth, at the level of 6th ICS, left of the sternum, directing posteriorly, penetrating perforating the thoracic cavity; "(11) Wound, stabbed, opening is D shape, 2 cm long, 8 cm depth, at the level of 4th ICS, midclavicular line, anterior chest, left directing laterally and posteriorly, penetrating perforating the cardiac cavity; "(12) Wound, stabbed, 2 cm long, 1.5 cm depth, right of the sternum, at the level of 2nd ICS, non-penetrating; "(13) Wound, lacerated, 4.0 cm long, 2.0 gape, 0.5 cm depth, distal third, dorsal, medial area, arm, right; "(14) Wound, lacerated, 4.0 cm long, 2 cm gape, 0.5 depth, distal third, dorsal, lateral area, arm, right;
"(15) Wound, stabbed, 3 cm long, 1.5 cm gape, 8 cm depth, middle third, anterior, thigh, left, directing upward and posteriorly."7 Of the fifteen wounds, the fatal ones were wounds no. 10 and 11. Dr. Asis testified that based on the location of the wounds, it was possible that the assailant or assailants were in front of or beside the victim. Dr. Asis stated that it was likewise possible that the wounds have been caused by only one instrument. He could not, however, state with certainty how many persons attacked the victim.8 Dr. Asis issued a death certificate (Exh. D) on October 28, 1996, which stated that Winefred Espina died on October 21, 1996 from hemorrhagic shock caused by multiple wounds. Accused-appellant's defense was alibi. He claimed that on October 21, 1996, at about 2:45 p.m., he was in their house located along the shore of Barangay Manaul, Mansalay. With him in the house were his two brothers, his mother, and his two nephews. At that time, accused-appellant was busy repairing a fishing device known as "tora tora," which was used by fishermen in catching bangus fries. Apart from the members of his family, Nemie Espiritu, a barriomate, saw accused-appellant at around 3:00 p.m. of that day. Accused-appellant claimed that he undertook the repair of the "tora tora" from 7:00 a.m. until 4:30 p.m. of that day. He insisted that he did not know his co-accused in this case, Randy and Lindo Gabay. He also denied that he knew the victim, Winefred Espina, or the latter's nephew, Arnold Bugayon.9 Accused-appellant further testified that their house at Barangay Manaul, Mansalay was located along the shore about half a kilometer from the national highway. There were no motor vehicles which regularly plied the route from the highway to their place. He admitted, however, that the distance of their house to the highway could be covered in fifteen minutes by foot.10 Nemie Espiritu, a barriomate of accused-appellant, claimed that at around 3:00 p.m. of October 21, 1996, he was looking for fish to serve to his visitors. On his way to the house of a certain Tammy Seloria, he saw accused-appellant near his house and they nodded at each other.11 On the basis of the evidence presented by the parties, the trial court rendered a decision, the dispositive portion of which states: "WHEREFORE, judgment is hereby rendered as follows: "(a) The court finds accused Dindo Pajotal y Fetalcorin GUILTY beyond reasonable doubt of the special complex crime of Robbery with Homicide punishable under Article 294 paragraph 1 of the Revised Penal Code as amended by RA 7659 with the aggravating circumstance of abuse of superior strength and he is hereby sentenced to suffer the supreme penalty of DEATH to be executed in accordance with existing law. In accordance with the provisions of Section 10, Rule 122 of the 1985 Rules of Criminal Procedure, the Branch Clerk of Court, Atty. Mariano S. Familara III is hereby directed to forward within twenty (20) days but not earlier than fifteen (15) days after promulgation of judgment or notice of denial of any motion for new trial or reconsideration the complete records of the case to the Honorable Supreme Court for review; "(b) Accused Dindo Pajotal is also ordered to pay the heirs of the deceased Winefred Espina the sum of P50,000.00 as compensatory damages for the loss of life of the victim, the sum of P26,000.00 as actual damages and P500,000.00 as lost earnings;
"(c) With respect to accused Randy Gabay alias Randy Montesa and Lindo Gabay who are still at large, let an alias warrant of arrest be issued against them in order that they could be brought to court for trial."12 Hence this appeal. Accused-appellant contends that: "I. THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANTS OF THE CRIME CHARGED DESPITE THE FACT THAT THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. "II. GRANTING THAT THE ACCUSED-APPELLANT ARE (SIC) GUILTY, THE LOWER COURT ERRED IN CONVICTING THEM FOR ROBBERY WITH HOMICIDE SINCE THE CRIMES COMMITTED ARE ONLY THE TWO SEPARATE CRIMES OF SIMPLE ROBBERY AND HOMICIDE WHICH WILL ENTITLE THEM TO THE IMPOSITION OF A LESSER PENALTY FOR EACH OF THE TWO FELONIES CORRESPONDINGLY."13 We find the appeal to be without merit. First. Accused-appellant contends that the State failed to prove his guilt by strong and overwhelming evidence. While admitting that alibi per se is a weak defense, accused-appellant nevertheless contends that alibi can constitute a valid and plausible defense if, in the commission of the crime, there are no other witnesses except the parties involved. In this case, accused-appellant insists no other witness was presented to corroborate Arnold Bugayon's testimony.14 Accused-appellant's contention is untenable. Accused-appellant does not explain why the testimony of the lone eyewitness Arnold Bugayon is insufficient to establish his guilt beyond reasonable doubt. Nor does he give specific instances from the records of this case to bolster his claim of innocence. Contrary to accused-appellant's claim, the prosecution has proved the guilt of accused-appellant beyond reasonable doubt. The fact that Arnold Bugayon was the only eyewitness does not diminish the force and weight of his testimony. A doctrine of long standing in this jurisdiction is that the testimony of a lone eyewitness, if credible and positive, is sufficient to convict an accused.15 Hence the trial court, which heard Bugayon's testimony and had the opportunity to observe his demeanor while on the witness stand, said: "The robbery subject of the instant case occurred in broad daylight. The lone eyewitness to the crime, Arnold Bugayon, categorically declared that it was accused Dindo Pajotal who clung to the right side of their passenger jeepney then being utilized as a delivery vehicle just next to him, to his right side and that while there was an on-going scuffle between his uncle and the two other conspirators of Pajotal the latter even delivered with his knife a thrusting blow on him. To the mind of the court, Arnold Bugayon could not have failed to recognize Pajotal as he himself was assaulted by him. The natural reaction of a person in his predicament is to exert efforts to identify the culprits. As ruled by the Supreme Court in the cases of People vs. Melendres, 106 SCRA 575 and People v. Amiscua, 37 SCRA 813, a truism founded on the ordinary course of things is that victims of criminal violence often strive hard to recognize and identify their assailants."16
We see no reason to disturb the trial court's evaluation and assessment of Bugayon's credibility, the same not being tainted by any arbitrariness or palpable error. The findings of the trial court judge who tried the case and heard the witnesses are not to be disturbed on appeal unless there are substantial facts and circumstances which have been overlooked and which, if properly considered, might affect the result of the case. The trial judge's evaluation of the witnesses' credibility deserves the utmost respect in the absence of arbitrariness. Conclusions and findings of the trial court are entitled to great weight on appeal and should not be disturbed unless for strong and valid reasons because the trial court is in a better position to examine the demeanor of the witnesses while testifying on the case.17 Arnold Bugayon's testimony is strengthened by the findings of Dr. Domingo Asis, the medico-legal examiner who performed the autopsy on the victim's body. Bugayon testified that after the victim, Espina, handed the money to the person on his left side, the latter, apparently aroused by Espina's uncooperative behavior, stabbed Espina on the left thigh. Espina got out of the jeepney to confront the robbers and a scuffle ensued, with the three men ganging up on Espina. Bugayon's testimony is consistent with the medical findings of Dr. Asis that the victim suffered fifteen wounds, among which was a 3 cm. stab wound on the left thigh, directed upward and posteriorly. Bugayon also testified that the men who were hanging on the jeepney beside him and his uncle were both carrying balisong knives. When the three men ganged up on Espina, they stabbed him with their knives and hit him with a stone.18 Again, this testimony coincides with Dr. Asis's findings that among the wounds suffered by the victim were incisions and lacerations, as well as a fracture of the frontal bone on the base of the nose. As the trial court observed, the incisions and lacerations could very well have been caused by the knives wielded by two of the robbers, while the fracture could have been caused by the stone carried by the third robber.19 Despite compelling evidence against him, accused-appellant could only put up alibi in his defense. He claimed that on the date and at the time of the incident in question, he was in his house in Barangay Manaul, Mansalay, Oriental Mindoro repairing a fishing implement. This defense is unavailing. For alibi to offset the evidence of the prosecution demonstrating his guilt, the accused must establish not only that he was somewhere else when the crime was committed but also that it was physically impossible for him to have been at the scene of the crime at the time it was committed.20 Accused-appellant failed to prove that it was physically impossible for him to be at the scene at the time of the commission of the crime. To the contrary, he testified that their house was just about half a kilometer from the national highway, where the crime took place. Although there were no motor vehicles which regularly plied the route from the highway to their place, the distance could be covered in fifteen minutes by foot. Accused-appellant was an athletic person. He was in fact one of the stars of their local basketball team.21 It would thus have been easy for him to make the fifteen-minute walk to the highway, commit the crime with his co-accused, and return to his house thereafter. Defense witness Nemie Espiritu, who lived in the same sitio, testified that he saw accused-appellant working in his house after 3:00 p.m. He did not categorically state what time he saw accused-appellant, but only said that it was at 3:00 p.m., more or less.22 Alibi is an inherently weak defense which, unless supported by clear and convincing evidence, cannot prevail over the positive identification of accused-appellant by an eyewitness, Arnold Bugayon, who had no improper motive to testify falsely against him.23 For these reasons, we hold that the guilt of accused-appellant for the crime charged has been proven by the prosecution beyond reasonable doubt. Second. Accused-appellant contends that, even if he is guilty of killing Winefred Espina, the trial court nonetheless erred in finding him liable for the crime of robbery with homicide because two
separate crimes of simple robbery and homicide were actually committed, and a lesser penalty for each should have been imposed. Accused-appellant claims that, according to Bugayon's testimony, the injuries which caused Espina's death were inflicted after the robbery. He thus argues that the homicide was not committed on the occasion or by reason of the robbery within the contemplation of Art. 294, paragraph 1 of the Revised Penal Code, which provides the penalty of reclusion perpetua to death for the special complex crime of robbery with the use of violence against or intimidation of persons. This contention has no merit. In order to determine the existence of the crime of robbery with homicide, it is enough that death results by reason or on the occasion of the robbery inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes, modes, or persons intervening in the commission of the crime, that has to be taken into consideration.24 In other words, in the crime of robbery with homicide, it does not matter if the homicide preceded or occurred after the robbery. For what is essential is that there is a direct relation or intimate connection between the robbery and the killing, whether the latter be prior or subsequent to the former or whether both crimes be committed at the same time.25 The original criminal design of the culprit must be robbery and the homicide is perpetrated with a view to the consummation of the robbery, by reason or on the occasion of the robbery.26 Thus, in People v. Guiapar,27 it was held that the death of a guard resulting from the injury he sustained during the robbery qualified the offense to robbery with homicide. As long as homicide resulted during, or because of, the robbery, even if the killing is by mere accident, robbery with homicide committed.28 In the case at bar, Arnold Bugayon testified that the victim Espina was initially stabbed in the thigh by one of the robbers because it appeared that he would fight to get back his money. In fact, after he was stabbed, Espina got off the jeepney to run after the hold-up men to recover his money. At that point, accused-appellant and his co-accused then stabbed Espina several times and struck him with a stone. In view of the foregoing circumstances, we agree with the trial court when it found that the homicide in the case at bar was committed by reason or on the occasion of the robbery. The information in this case alleged that in the commission of the crime, the qualifying circumstances of treachery and evident premeditation and the aggravating circumstance of abuse of superior strength attended the commission of the crime. The trial court was correct in not appreciating evident premeditation as a qualifying circumstance since this is inherent in the crime of robbery.29 The trial court was likewise correct in not appreciating the qualifying circumstance of treachery. Although the victim was caught by surprise when he received the first stab on his left thigh, the evidence shows that the victim was not caught completely off guard. For the fact is that the victim, accused-appellant, and the latter's co-accused engaged in combat for several minutes before the former received the fatal stab wounds. This negates the existence of the first element of treachery, i.e., a sudden attack giving the victim no opportunity to defend himself or retaliate. The existence of a struggle before the fatal blows were dealt on the victim shows he was forewarned of the impending attack and that he was afforded the opportunity to put up a defense.30 However, despite the absence of treachery, the factual circumstances of the crime show that the killing of the victim was qualified by abuse of superior strength, which is expressly alleged in the Information. Accused-appellant and his co-accused did not only enjoy superiority in number but they also used knives and a stone while their victim was unarmed. Thus, there was physical disparity between the protagonists and abuse of superior strength was obvious. The force used by the aggressors was out of proportion to the means of defense available to the victim.31 Under Art. 294, par. 1 of the Revised Penal Code, as amended by R.A. No. 7659, any person guilty of robbery with the use of violence against or intimidation of any person shall suffer the penalty of reclusion perpetua to death when, by reason or on occasion of the robbery, the crime of homicide shall have been committed. In this case, it has been proven beyond reasonable doubt that homicide was committed by accused-appellant and his co-accused by reason or on occasion of the robbery
committed against the victim. Under Article 63 of the Revised Penal Code, in all cases in which the law prescribes a penalty composed of two indivisible penalties, and the crime was committed with the presence of one aggravating circumstance, the greater penalty shall be applied. Considering the presence in this case of the aggravating circumstance of abuse of superior strength, the penalty of death imposed by the trial court is proper and should thus be sustained. Four (4) members of the Court, although maintaining their adherence to the separate opinions expressed in People v. Echegaray32 that R.A. No. 7659, insofar as it prescribes the penalty of death, is unconstitutional, nevertheless submit to the ruling of the majority that the law is constitutional and that the death penalty should accordingly be imposed. The civil indemnity in the amount of P50,000.00 awarded by the trial court is sustained, the same being in line with current case law.33 The award of P26,000.00 as actual damages is also sustained as the amount duly proved and supported by receipts presented during the course of the trial. However, the trial court should have ordered accused-appellant to indemnify the heirs of the victim in the amount of P15,000.00, representing the amount the victim was carrying at the time of the crime and taken by accused-appellant and his co-accused. It was never established by any admissible evidence that any portion of this amount had been recovered.34 But the award for loss of earning capacity should be disallowed. As a rule, documentary evidence should be presented to substantiate the claim for damages for loss of earning capacity. By way of exception, damages for loss of earning capacity may be awarded despite the absence of documentary evidence, provided that there is testimony either that the victim was self-employed earning less than the minimum wage under current labor laws and judicial notice may be taken of the fact that in the victim's line of work, no documentary evidence is available; or that the victim was employed as a daily wage worker earning less than the minimum wage under current labor laws.35 In the case at bar, the testimony of Lea Espina, Winefred Espina's widow, was the sole basis for the award of damages for loss of earning capacity. As it is not supported by other documentary evidence, her bare testimony cannot be made the basis for an award of damages for loss of earning capacity. Nor do the exceptions apply so as to justify an award of damages for loss of earning capacity despite the absence of documentary evidence. The victim was not employed as a daily wage worker earning less than the minimum wage at the time of his death. He was in fact, as claimed by his widow, earning substantially more than the minimum wage. For these reasons, damages for loss of earnings cannot be awarded in the absence of evidence sufficiently showing his income. The trial court should have awarded moral damages in the amount of P50,000.00 pursuant to Art. 2219 par. (1) in relation to Art. 2006 par. (3) of the Civil Code. This is in consonance with our recent rulings.36 We also agree with the Solicitor General that the trial court should have awarded exemplary damages pursuant to Art. 2230 of the Civil Code. Said article allows the imposition of exemplary damages when the crime is committed with one or more aggravating circumstances. As discussed, abuse of superior strength aggravated the commission of the crime in the case at bar. Therefore, an award of P20,000.00 to the heirs of the victim is in order.37 WHEREFORE, the decision of the trial court is AFFIRMED with the MODIFICATION that accusedappellant is ordered to pay the legal heirs of Winefred Espina P41,000.00 as actual damages, P50,000.00 as moral damages, P20,000.00 as exemplary damages, and the costs. In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal Code, upon the finality of this decision, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power.
SO ORDERED. Davide Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez and Carpio, JJ., concur.
Footnotes
1
Penned by Judge Antonio M. Rosales. Republic of the Philippines SUPREME COURT Manila EN BANC
G.R. No. L-3246
November 29, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABELARDO FORMIGONES, defendant-appellant. Luis Contreras for appellant. Office of the Solicitor General Felix Bautista Angelo and Solicitor Felix V. Makasiar for appellee. MONTEMAYOR, J.: This is an appeal from the decision of the Court of First Instance of Camarines Sur finding the appellant guilty of parricide and sentencing him to reclusion perpetua, to indemnify the heirs of the deceased in the amount of P2,000, and to pay the costs. The following facts are not disputed. In the month of November, 1946, the defendant Abelardo Formigones was living on his farm in Bahao, Libmanan, municipality of Sipocot, Camarines Sur, with his wife, Julia Agricola, and his five children. From there they went to live in the house of his half-brother, Zacarias Formigones, in the barrio of Binahian of the same municipality of Sipocot, to find employment as harvesters of palay. After about a month's stay or rather on December 28, 1946, late in the afternoon, Julia was sitting at the head of the stairs of the house. The accused, without any previous quarrel or provocation whatsoever, took his bolo from the wall of the house and stabbed his wife, Julia, in the back, the blade penetrating the right lung and causing a severe hemorrhage resulting in her death not long thereafter. The blow sent Julia toppling down the stairs to the ground, immediately followed by her husband Abelardo who, taking her up in his arms, carried her up the house, laid her on the floor of the living room and then lay down beside her. In this position he was found by the people who came in response to the shouts for help made by his eldest daughter, Irene Formigones, who witnessed and testified to the stabbing of her mother by her father. Investigated by the Constabulary, defendant Abelardo signed a written statement, Exhibit D, wherein he admitted that he killed The motive was admittedly of jealousy because according to his statement he used to have quarrels with his wife for the reason that he often saw her in the company of his brother Zacarias; that he suspected that the two were maintaining illicit relations because he noticed that his had become indifferent to him (defendant).
During the preliminary investigation conducted by the justice of the peace of Sipocot, the accused pleaded guilty, as shown by Exhibit E. At the trial of the case in the Court of First Instance, the defendant entered a plea of not guilty, but did not testify. His counsel presented the testimony of two guards of the provincial jail where Abelardo was confined to the effect that his conduct there was rather strange and that he behaved like an insane person; that sometimes he would remove his clothes and go stark naked in the presence of his fellow prisoners; that at times he would remain silent and indifferent to his surroundings; that he would refused to take a bath and wash his clothes until forced by the prison authorities; and that sometimes he would sing in chorus with his fellow prisoners, or even alone by himself without being asked; and that once when the door of his cell was opened, he suddenly darted from inside into the prison compound apparently in an attempt to regain his liberty. The appeal is based merely on the theory that the appellant is an imbecile and therefore exempt from criminal liability under article 12 of the Revised Penal Code. The trial court rejected this same theory and we are inclined to agree with the lower court. According to the very witness of the defendant, Dr. Francisco Gomez, who examined him, it was his opinion that Abelardo was suffering only from feeblemindedness and not imbecility and that he could distinguish right from wrong. In order that a person could be regarded as an imbecile within the meaning of article 12 of the Revised Penal Code so as to be exempt from criminal liability, he must be deprived completely of reason or discernment and freedom of the will at the time of committing the crime. The provisions of article 12 of the Revised Penal Code are copied from and based on paragraph 1, article 8, of the old Penal Code of Spain. Consequently, the decisions of the Supreme Court of Spain interpreting and applying said provisions are pertinent and applicable. We quote Judge Guillermo Guevara on his Commentaries on the Revised Penal Code, 4th Edition, pages 42 to 43: The Supreme Court of Spain held that in order that this exempting circumstances may be taken into account, it is necessary that there be a complete deprivation of intelligence in committing the act, that is, that the accused be deprived of reason; that there be no responsibility for his own acts; that he acts without the least discernment;1 that there be a complete absence of the power to discern, or that there be a total deprivation of freedom of the will. For this reason, it was held that the imbecility or insanity at the time of the commission of the act should absolutely deprive a person of intelligence or freedom of will, because mere abnormality of his mental faculties does not exclude imputability.2 The Supreme Court of Spain likewise held that deaf-muteness cannot be equaled to imbecility or insanity. The allegation of insanity or imbecility must be clearly proved. Without positive evidence that the defendant had previously lost his reason or was demented, a few moments prior to or during the perpetration of the crime, it will be presumed that he was in a normal condition. Acts penalized by law are always reputed to be voluntary, and it is improper to conclude that a person acted unconsciously, in order to relieve him from liability, on the basis of his mental condition, unless his insanity and absence of will are proved. As to the strange behaviour of the accused during his confinement, assuming that it was not feigned to stimulate insanity, it may be attributed either to his being feebleminded or eccentric, or to a morbid mental condition produced by remorse at having killed his wife. From the case of United States vs. Vaquilar (27 Phil. 88), we quote the following syllabus: Testimony of eye-witnesses to a parricide, which goes no further than to indicate that the accused was moved by a wayward or hysterical burst of anger or passion, and other
testimony to the effect that, while in confinement awaiting trial, defendant acted absentmindedly at times, is not sufficient to establish the defense of insanity. The conduct of the defendant while in confinement appears to have been due to a morbid mental condition produced by remorse. After a careful study of the record, we are convinced that the appellant is not an imbecile. According to the evidence, during his marriage of about 16 years, he has not done anything or conducted himself in anyway so as to warrant an opinion that he was or is an imbecile. He regularly and dutifully cultivated his farm, raised five children, and supported his family and even maintained in school his children of school age, with the fruits of his work. Occasionally, as a side line he made copra. And a man who could feel the pangs of jealousy to take violent measure to the extent of killing his wife whom he suspected of being unfaithful to him, in the belief that in doing so he was vindicating his honor, could hardly be regarded as an imbecile. Whether or not his suspicions were justified, is of little or no import. The fact is that he believed her faithless. But to show that his feeling of jealousy had some color of justification and was not a mere product of hallucination and aberrations of a disordered mind as that an imbecile or a lunatic, there is evidence to the following effect. In addition to the observations made by appellant in his written statement Exhibit D, it is said that when he and his wife first went to live in the house of his half brother, Zacarias Formigones, the latter was living with his grandmother, and his house was vacant. However, after the family of Abelardo was settled in the house, Zacarias not only frequented said house but also used to sleep there nights. All this may have aroused and even partly confirmed the suspicions of Abelardo, at least to his way of thinking. The appellant has all the sympathies of the Court. He seems to be one of those unfortunate beings, simple, and even feebleminded, whose faculties have not been fully developed. His action in picking up the body of his wife after she fell down to the ground, dead, taking her upstairs, laying her on the floor, and lying beside her for hours, shows his feeling of remorse at having killed his loved one though he thought that she has betrayed him. Although he did not exactly surrender to the authorities, still he made no effort to flee and compel the police to hunt him down and arrest him. In his written statement he readily admitted that he killed his wife, and at the trial he made no effort to deny or repudiate said written statement, thus saving the government all the trouble and expense of catching him, and insuring his conviction. Although the deceased was struck in the back, we are not prepared to find that the aggravating circumstance of treachery attended the commission of the crime. It seems that the prosecution was not intent or proving it. At least said aggravating circumstance was not alleged in the complaint either in the justice of the peace court or in the Court of First Instance. We are inclined to give him the benefit of the doubt and we therefore declined to find the existence of this aggravating circumstance. On the other hand, the fact that the accused is feebleminded warrants the finding in his favor of the mitigating circumstance provided for in either paragraph 8 or paragraph 9 of article 13 of the Revised Penal Code, namely that the accused is "suffering some physical defect which thus restricts his means of action, defense, or communication with his fellow beings," or such illness "as would diminish the exercise of his will power." To this we may add the mitigating circumstance in paragraph 6 of the same article, that of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation. The accused evidently killed his wife in a fit of jealousy. With the presence of two mitigating circumstances without any aggravating circumstance to offset them, at first we thought of the possible applicability of the provisions of article 64, paragraph 5 of the Revised Penal Code for the purpose of imposing the penalty next lower to that prescribed by article 246 for parricide, which is reclusion perpetua to death. It will be observed however, that article 64 refers to the application of penalties which contain three periods whether it be a single divisible
penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of articles 76 and 77, which is not true in the present case where the penalty applicable for parricide is composed only of two indivisible penalties. On the other hand, article 63 of the same Code refers to the application of indivisible penalties whether it be a single divisible penalty, or two indivisible penalties like that of reclusion perpetua to death. It is therefore clear that article 63 is the one applicable in the present case. Paragraph 2, rule 3 of said article 63 provides that when the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. Interpreting a similar legal provision the Supreme Court in the case of United States vs. Guevara (10 Phil. 37), involving the crime of parricide, in applying article 80, paragraph 2 (rule 3 of the old Penal Code) which corresponds to article 63, paragraph 2 (rule 3 of the present Revised Penal Code), thru Chief Justice Arellano said the following: And even though the court should take into consideration the presence of two mitigating circumstances of a qualifying nature, which it can not afford to overlook, without any aggravating one, the penalty could not be reduced to the next lower to that imposed by law, because, according to a ruling of the court of Spain, article 80 above-mentioned does not contain a precept similar to that contained in Rule 5 of article 81 (now Rule 5, art. 64 of the Rev. Penal Code.) (Decision of September 30, 1879.) Yet, in view of the excessive penalty imposed, the strict application of which is inevitable and which, under the law, must be sustained, this court now resorts to the discretional power conferred by paragraph 2 of article 2 of the Penal Code; and. Therefore, we affirm the judgment appealed from with costs, and hereby order that a proper petition be filed with the executive branch of the Government in order that the latter, if it be deemed proper in the exercise of the prerogative vested in it by the sovereign power, may reduce the penalty to that of the next lower. Then, in the case of People vs. Castaeda (60 Phil. 604), another parricide case, the Supreme Court in affirming the judgment of conviction sentencing defendant to reclusion perpetua, said that notwithstanding the numerous mitigating circumstances found to exist, inasmuch as the penalty for parricide as fixed by article 246 of the Revised Penal Code is composed of two indivisible penalties, namely, reclusion perpetua to death, paragraph 3 of article 63 of the said Code must be applied. The Court further observed: We are likewise convinced that appellant did not have that malice nor has exhibited such moral turpitude as requires life imprisonment, and therefore under the provisions of article 5 of the Revised Penal Code, we respectfully invite the attention of the Chief Executive to the case with a view to executive clemency after appellant has served an appreciable amount of confinement. In conclusion, we find the appellant guilty of parricide and we hereby affirm the judgment of the lower court with the modification that the appellant will be credited with one-half of any preventive imprisonment he has undergone. Appellant will pay costs. Following the attitude adopted and the action taken by this same court in the two cases above cited, and believing that the appellant is entitled to a lighter penalty, this case should be brought to the attention of the Chief Executive who, in his discretion may reduce the penalty to that next lower to reclusion perpetua to death or otherwise apply executive clemency in the manner he sees fit.
Moran, Bengzon, C. J., Paras, Feria, Pablo, Tuason, Reyes, and Jugo, JJ., concur.
PADILLA, J.: I concur in the result. Republic of the Philippines SUPREME COURT Manila EN BANC
G.R. No. 129433 March 30, 2000 PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.: On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only attempted rape and consummated rape to remain in our statute books. The instant case lurks at the threshold of another emasculation of the stages of execution of rape by considering almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The danger there is that that concept may send the wrong signal to every roaming lothario, whenever the opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any attempted fornication would be considered consummated rape and punished as such. A mere strafing of the citadel of passion would then be considered a deadly fait accompli, which is absurd. In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he attained his objective. All the elements of the offense were already present and nothing more was left for the offender to do, having performed all the acts necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for consummated rape. We distinguished consummated rape from attempted rape where there was no penetration of the female organ because not all acts of execution were performed as the offender merely commenced the commission of a felony directly by overt acts. 3 The inference that may be derived therefrom is that complete or full penetration of the vagina is not required for rape to be consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated stage. But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ, even if there be no rupture of the hymen or laceration of the vagina, to
warrant a conviction for consummated rape. While the entry of the penis into the lips of the female organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora, etc., 4 the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself. The importance of the requirement of penetration, however slight, cannot be gainsaid because where entry into the labia or the lips of the female genitalia has not been established, the crime committed amounts merely to attempted rape. Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the difference between life and death for the accused a reclusive life that is not even perpetua but only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute attempted rape? Must our field of choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree with this ponencia? On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme penalty of death, 5 hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659. 6 As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside her children's room kneeling before Crysthel whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his knees. According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their compound, to chase the accused. 8 Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held the accused at the back of their compound until they were advised by their neighbors to call the barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on Crysthel's body as her hymen was intact and its orifice was only 0.5 cm. in diameter. Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her. 9 He asserted that in truth Crysthel was in a playing mood and wanted to ride on his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for help from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him. Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs. The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthel's younger sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened within the family compound where a call for assistance could easily be heard and responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was wide open for anybody to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or of penetration of Crysthel's private parts more than bolsters his innocence. In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel's vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. 10 But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or the pudendum. In People v. De la Pea 11 we clarified that the decisions finding a case for rape even if the attacker's penis merely touched the external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva, 12 or that the penis of the accused touched the middle part of her vagina. 13 Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. 14 As the labias, which are required to be "touched"
by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape. The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora. 15 Jurisprudence dictates that the labia majora must be entered for rape to be consummated, 16 and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ," 17 but has also progressed into being described as "the introduction of the male organ into the labia of the pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion. A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon entering her children's room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus: Q: How was Primo holding your daughter? A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is holding his penis and his left hand is spreading the legs of the victim). It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an unbridled observation impossible. Not even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primo's penis supposedly reaching Crysthel's external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his movements from Corazon's sight, not to discount the fact that Primo's right hand was allegedly holding his penis thereby blocking it from Corazon's view. It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into the permissive sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious
doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the constitutional right of the accused to be presumed innocent. Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her the opportunity to fully witness his beastly act. We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is and persist in satisfying his lust even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of Primo upon learning of Corazon's presence would have been to pull his pants up to avoid being caught literally with his pants down. The interval, although relatively short, provided more than enough opportunity for Primo not only to desist from but even to conceal his evil design. What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court Q: Did the penis of Primo touch your organ? A: Yes, sir. But when asked further whether his penis penetrated her organ, she readily said, "No." Thus Q: But did his penis penetrate your organ? A: No, sir. 20 This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her vagina, however slight. Crysthel made a categorical statement denying penetration, 27 obviously induced by a question propounded to her who could not have been aware of the finer distinctions between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult interpretation that because the penis of the accused touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. 22 Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection. 23 On the contrary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim. Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the child's own assertion that she resisted Primo's advances by putting her legs close together; 24 consequently, she did not feel any intense pain but just felt "not happy" about what Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the hymenal tags were no longer visible. 26 None was shown in this case. Although a child's testimony must be received with due consideration on account of her tender age, the Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights
of the accused. Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death. Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on complaining witness' body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical basis to hold that there was sexual contact between the accused and the victim. 27 In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates attempted rape from consummated rape will significantly disappear. Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. All the elements of attempted rape and only of attempted rape are present in the instant case, hence, the accused should be punished only for it. The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods. WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio. SO ORDERED.
1w phi 1.nt
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur. Pnganiban, J., in the result.
People of the Philippines vs. Amado V. Hernandez

People of the Philippines v. Hernandez (99 Phil. Reports 515, 1956) was a case decided by the Philippine Supreme Court which held that the crime of rebellion under the Philippines Revised Penal Code is charged as a single offense, and that it cannot be made into a complex crime. While it was decided on an almost divided opinion, it nevertheless became a stable doctrine in Philippine jurisprudence.
Contents
[hide]
1 Facts 2 Arguments 3 Decision 4 Legacy 5 References 6 Original Source
[edit]
Facts
It was the height of the Government action against communists and the Hukbalahap guerillas. President Elpidio Quirino, through his Defense Secretary (and later, President) Ramon Magsaysay intensified the campaign against them, and the crackdown was on against communist organizations. Due to such government action, several communist leaders like Luis Taruc and the Lava brothers were soon in government custody. On January 20, 1951, the Congress of Labor Organizations (CLO) headquarters was raided. Writer (and future Philippine National Artist for Literature) Amado V. Hernandez, himself a labor leader, was arrested on January 26 for various rebellious activities with the CLO. Upon his arrest, he was charged in the criminal information of Rebellion with Murder, Arson and Robbery. Five years after his arrest, Hernandez asked for bail with the court where his case was pending, but was denied on the basis of the nature of the offense (if the crime was complexed, the penalty for the most serious crime shall be imposed). Thus, he made a petition to the Supreme Court. [edit]
Arguments
The government, headed by Solicitor General Ambrosio Padilla, argued that the gravity of the crime committed required the denial of the bail. Moreover, the complex crime charged by the government against Hernandez has been successfully imposed with other arrested communist leaders and was sentenced to life imprisonment. [edit]
Decision
The Supreme Court, through then Associate Justice Roberto Concepcion, ruled that rebellion cannot be complexed with other crimes, such as murder and arson. Rebellion in itself would include and absorb the said crimes, thus granting the accused his right to bail. Murder and arson are crimes inherent and concomitant when rebellion is taking place. Rebellion in the Revised Penal Code constitutes one single crime and that there is no reason to complex it with other crimes. As basis, the Court cited several cases convicting the defendants of simple rebellion although they killed several persons. Thus, the petition for bail was granted. On May 30, 1964, the Supreme Court acquitted Hernandez (People v. Hernandez (1964)). [edit]
Legacy
The Court was divided upon the decision, having a vote of 6-4 (one justice died a month before its promulgation). But it was later on accepted as valuable jurisprudence, starting with the subsequent case of People of the Philippines v. Geronimo (100 Phil. Reports 90). The case is now a standard case study in Philippine law schools. According to Justice J.B.L. Reyes, during the deliberations of the Hernandez case, Justice Sabino Padilla (who is the brother of the Solicitor General, Ambrosio Padilla) openly accused Chief Justice Ricardo Paras for being prejudiced against the Government and asking biased questions during the oral argument. Riled, Paras rebutted, and a heated exchange soon ensued between the Chief Justice and Padilla, which would have worsened had not they restrained themselves. As of 1990, the Philippine Supreme Court again revisited the doctrine in Hernandez, where Juan Ponce Enrile was similarly charged with the same offense as Hernandez. The Supreme Court upheld anew the Hernandez decision (Enrile v. Salazar (1990)), maintaining that it is still good law and applicable.
Republic of the Philippines SUPREME COURT Manila
EN BANC G.R. No. 92163 June 5, 1990 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, petitioner vs. JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of Quezon City [Br. 103], SENIOR STATE PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND R. ABESAMIS, AND CITY ASSISTANT CITY PROSECUTOR EULOGIO MANANQUIL, NATIONAL BUREAU OF INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA TORRES (Superintendent of the Northern Police District) AND/ OR ANY AND ALL PERSONS WHO MAY HAVE ACTUAL CUSTODY OVER THE PERSON OF JUAN PONCE ENRILE, respondents. G.R. No. 92164 June 5, 1990 SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners, vs. PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE, FFRDINAND R. ABESAMIS, AND EULOGIO C. MANANQUIL, and HON. JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional Trial Court, Quezon City, Branch 103, respondents.
NARVASA, J.: Thirty-four years after it wrote history into our criminal jurisprudence, People vs. Hernandez 1 once more takes center stage as the focus of a confrontation at law that would re-examine, if not the validity of its doctrine, the limits of its applicability. To be sure, the intervening period saw a number of similar cases 2 that took issue with the ruling-all with a marked lack of success-but none, it would Beem, where season and circumstance had more effectively conspired to attract wide public attention and excite impassioned debate, even among laymen; none, certainly, which has seen quite the kind and range of arguments that are now brought to bear on the same question. The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile was arrested by law enforcement officers led by Director Alfredo Lim of the National Bureau of Investigation on the strength of a warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in Criminal Case No. 9010941. The warrant had issued on an information signed and earlier that day filed by a panel of prosecutors composed of Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to and held overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none having been recommended in the information and none fixed in the arrest warrant. The following morning, February 28, 1990, he was brought to Camp Tomas Karingal in Quezon City where he was given over to the custody of the Superintendent of the Northern Police District, Brig. Gen. Edgardo Dula Torres. 3 On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas corpus herein (which was followed by a supplemental petition filed on March 2, 1990), alleging that he was deprived of his constitutional rights in being, or having been:
(a) held to answer for criminal offense which does not exist in the statute books; (b) charged with a criminal offense in an information for which no complaint was initially filed or preliminary investigation was conducted, hence was denied due process; (c) denied his right to bail; and (d) arrested and detained on the strength of a warrant issued without the judge who issued it first having personally determined the existence of probable cause. 4 The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for hearing on March 6, 1990. 5 On March 5, 1990, the Solicitor General filed a consolidated return 6 for the respondents in this case and in G.R. No. 92164 7 Which had been contemporaneously but separately filed by two of Senator Enrile's co-accused, the spouses Rebecco and Erlinda Panlilio, and raised similar questions. Said return urged that the petitioners' case does not fall within the Hernandez ruling because-and this is putting it very simply-the information in Hernandez charged murders and other common crimes committed as a necessary means for the commission of rebellion, whereas the information against Sen. Enrile et al. charged murder and frustrated murder committed on the occasion, but not in furtherance, of rebellion. Stated otherwise, the Solicitor General would distinguish between the complex crime ("delito complejo") arising from an offense being a necessary means for committing another, which is referred to in the second clause of Article 48, Revised Penal Code, and is the subject of the Hernandez ruling, and the compound crime ("delito compuesto") arising from a single act constituting two or more grave or less grave offenses referred to in the first clause of the same paragraph, with which Hernandez was not concerned and to which, therefore, it should not apply. The parties were heard in oral argument, as scheduled, on March 6, 1990, after which the Court issued its Resolution of the same date 8 granting Senator Enrile and the Panlilio spouses provisional liberty conditioned upon their filing, within 24 hours from notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00 (for the Panlilios), respectively. The Resolution stated that it was issued without prejudice to a more extended resolution on the matter of the provisional liberty of the petitioners and stressed that it was not passing upon the legal issues raised in both cases. Four Members of the Court 9 voted against granting bail to Senator Enrile, and two 10 against granting bail to the Panlilios. The Court now addresses those issues insofar as they are raised and litigated in Senator Enrile's petition, G.R. No. 92163. The parties' oral and written pleas presented the Court with the following options: (a) abandon Hernandez and adopt the minority view expressed in the main dissent of Justice Montemayor in said case that rebellion cannot absorb more serious crimes, and that under Article 48 of the Revised Penal Code rebellion may properly be complexed with common offenses, so-called; this option was suggested by the Solicitor General in oral argument although it is not offered in his written pleadings; (b) hold Hernandez applicable only to offenses committed in furtherance, or as a necessary means for the commission, of rebellion, but not to acts committed in the course of a rebellion which also constitute "common" crimes of grave or less grave character;
(c) maintain Hernandez as applying to make rebellion absorb all other offenses committed in its course, whether or not necessary to its commission or in furtherance thereof. On the first option, eleven (11) Members of the Court voted against abandoning Hernandez. Two (2) Members felt that the doctrine should be re-examined. 10-A In the view of the majority, the ruling remains good law, its substantive and logical bases have withstood all subsequent challenges and no new ones are presented here persuasive enough to warrant a complete reversal. This view is reinforced by the fact that not too long ago, the incumbent President, exercising her powers under the 1986 Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former regime which precisely sought to nullify or neutralize Hernandez by enacting a new provision (Art. 142-A) into the Revised Penal Code to the effect that "(w)hen by reason, or on the occasion, of any of the crimes penalized in this Chapter (Chapter I of Title 3, which includes rebellion), acts which constitute offenses upon which graver penalties are imposed by law are committed, the penalty for the most serious offense in its maximum period shall be imposed upon the offender."' 11 In thus acting, the President in effect by legislative flat reinstated Hernandez as binding doctrine with the effect of law. The Court can do no less than accord it the same recognition, absent any sufficiently powerful reason against so doing. On the second option, the Court unanimously voted to reject the theory that Hernandez is, or should be, limited in its application to offenses committed as a necessary means for the commission of rebellion and that the ruling should not be interpreted as prohibiting the complexing of rebellion with other common crimes committed on the occasion, but not in furtherance, thereof. While four Members of the Court felt that the proponents' arguments were not entirely devoid of merit, the consensus was that they were not sufficient to overcome what appears to be the real thrust of Hernandez to rule out the complexing of rebellion with any other offense committed in its course under either of the aforecited clauses of Article 48, as is made clear by the following excerpt from the majority opinion in that case: There is one other reason-and a fundamental one at that-why Article 48 of our Penal Code cannot be applied in the case at bar. If murder were not complexed with rebellion, and the two crimes were punished separately (assuming that this could be done), the following penalties would be imposable upon the movant, namely: (1) for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying circumstances present, but never exceeding 12 years of prision mayor, and (2) for the crime of murder, reclusion temporal in its maximum period to death, depending upon the modifying circumstances present. in other words, in the absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article 48 said penalty would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the movant. Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing him to a penalty more severe than that which would be proper if the several acts performed by him were punished separately. In the words of Rodriguez Navarro: La unificacion de penas en los casos de concurso de delitos a que hace referencia este articulo (75 del Codigo de 1932), esta basado francamente en el principio pro reo.' (II Doctrina Penal del Tribunal Supremo de Espana, p. 2168.)
We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal Code (the counterpart of our Article 48), as amended in 1908 and then in 1932, reading: Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para cometer el otro. En estos casos solo se impondra la pena correspondiente al delito mas grave en su grado maximo, hasta el limite que represents la suma de las que pudieran imponerse, penando separadamente los delitos. Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por separado. (Rodriguez Navarro, Doctrina Penal del Tribunal Supremo, Vol. II, p. 2163) and that our Article 48 does not contain the qualification inserted in said amendment, restricting the imposition of the penalty for the graver offense in its maximum period to the case when it does not exceed the sum total of the penalties imposable if the acts charged were dealt with separately. The absence of said limitation in our Penal Code does not, to our mind, affect substantially the spirit of said Article 48. Indeed, if one act constitutes two or more offenses, there can be no reason to inflict a punishment graver than that prescribed for each one of said offenses put together. In directing that the penalty for the graver offense be, in such case, imposed in its maximum period, Article 48 could have had no other purpose than to prescribe a penalty lower than the aggregate of the penalties for each offense, if imposed separately. The reason for this benevolent spirit of article 48 is readily discernible. When two or more crimes are the result of a single act, the offender is deemed less perverse than when he commits said crimes thru separate and distinct acts. Instead of sentencing him for each crime independently from the other, he must suffer the maximum of the penalty for the more serious one, on the assumption that it is less grave than the sum total of the separate penalties for each offense. 12 The rejection of both options shapes and determines the primary ruling of the Court, which is that Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion. This, however, does not write finis to the case. Petitioner's guilt or innocence is not here inquired into, much less adjudged. That is for the trial court to do at the proper time. The Court's ruling merely provides a take-off point for the disposition of other questions relevant to the petitioner's complaints about the denial of his rights and to the propriety of the recourse he has taken. The Court rules further (by a vote of 11 to 3) that the information filed against the petitioner does in fact charge an offense. Disregarding the objectionable phrasing that would complex rebellion with murder and multiple frustrated murder, that indictment is to be read as charging simple rebellion. Thus, in Hernandez, the Court said: In conclusion, we hold that, under the allegations of the amended information against defendant-appellant Amado V. Hernandez, the murders, arsons and robberies described therein are mere ingredients of the crime of rebellion allegedly committed
by said defendants, as means "necessary" (4) for the perpetration of said offense of rebellion; that the crime charged in the aforementioned amended information is, therefore, simple rebellion, not the complex crime of rebellion with multiple murder, arsons and robberies; that the maximum penalty imposable under such charge cannot exceed twelve (12) years of prision mayor and a fine of P2H,HHH; and that, in conformity with the policy of this court in dealing with accused persons amenable to a similar punishment, said defendant may be allowed bail. 13 The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute books, while technically correct so far as the Court has ruled that rebellion may not be complexed with other offenses committed on the occasion thereof, must therefore be dismissed as a mere flight of rhetoric. Read in the context of Hernandez, the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: simple rebellion. Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted? The record shows otherwise, that a complaint against petitioner for simple rebellion was filed by the Director of the National Bureau of Investigation, and that on the strength of said complaint a preliminary investigation was conducted by the respondent prosecutors, culminating in the filing of the questioned information. 14 There is nothing inherently irregular or contrary to law in filing against a respondent an indictment for an offense different from what is charged in the initiatory complaint, if warranted by the evidence developed during the preliminary investigation. It is also contended that the respondent Judge issued the warrant for petitioner's arrest without first personally determining the existence of probable cause by examining under oath or affirmation the complainant and his witnesses, in violation of Art. III, sec. 2, of the Constitution. 15 This Court has already ruled, however, that it is not the unavoidable duty of the judge to make such a personal examination, it being sufficient that he follows established procedure by personally evaluating the report and the supporting documents submitted by the prosecutor. 16 Petitioner claims that the warrant of arrest issued barely one hour and twenty minutes after the case was raffled off to the respondent Judge, which hardly gave the latter sufficient time to personally go over the voluminous records of the preliminary investigation. 17 Merely because said respondent had what some might consider only a relatively brief period within which to comply with that duty, gives no reason to assume that he had not, or could not have, so complied; nor does that single circumstance suffice to overcome the legal presumption that official duty has been regularly performed. Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation of Hernandez as applicable to petitioner's case, and of the logical and necessary corollary that the information against him should be considered as charging only the crime of simple rebellion, which is bailable before conviction, that must now be accepted as a correct proposition. But the question remains: Given the facts from which this case arose, was a petition for habeas corpus in this Court the appropriate vehicle for asserting a right to bail or vindicating its denial? The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there.
Even acceptance of petitioner's premise that going by the Hernandez ruling, the information charges a non-existent crime or, contrarily, theorizing on the same basis that it charges more than one offense, would not excuse or justify his improper choice of remedies. Under either hypothesis, the obvious recourse would have been a motion to quash brought in the criminal action before the respondent Judge. 18 There thus seems to be no question that All the grounds upon which petitioner has founded the present petition, whether these went into the substance of what is charged in the information or imputed error or omission on the part of the prosecuting panel or of the respondent Judge in dealing with the charges against him, were originally justiciable in the criminal case before said Judge and should have been brought up there instead of directly to this Court. There was and is no reason to assume that the resolution of any of these questions was beyond the ability or competence of the respondent Judge-indeed such an assumption would be demeaning and less than fair to our trial courts; none whatever to hold them to be of such complexity or transcendental importance as to disqualify every court, except this Court, from deciding them; none, in short that would justify by passing established judicial processes designed to orderly move litigation through the hierarchy of our courts. Parenthentically, this is the reason behind the vote of four Members of the Court against the grant of bail to petitioner: the view that the trial court should not thus be precipitately ousted of its original jurisdiction to grant or deny bail, and if it erred in that matter, denied an opportunity to correct its error. It makes no difference that the respondent Judge here issued a warrant of arrest fixing no bail. Immemorial practice sanctions simply following the prosecutor's recommendation regarding bail, though it may be perceived as the better course for the judge motu proprio to set a bail hearing where a capital offense is charged. 19 It is, in any event, incumbent on the accused as to whom no bail has been recommended or fixed to claim the right to a bail hearing and thereby put to proof the strength or weakness of the evidence against him. It is apropos to point out that the present petition has triggered a rush to this Court of other parties in a similar situation, all apparently taking their cue from it, distrustful or contemptuous of the efficacy of seeking recourse in the regular manner just outlined. The proliferation of such pleas has only contributed to the delay that the petitioner may have hoped to avoid by coming directly to this Court. Not only because popular interest seems focused on the outcome of the present petition, but also because to wash the Court's hand off it on jurisdictional grounds would only compound the delay that it has already gone through, the Court now decides the same on the merits. But in so doing, the Court cannot express too strongly the view that said petition interdicted the ordered and orderly progression of proceedings that should have started with the trial court and reached this Court only if the relief appealed for was denied by the former and, in a proper case, by the Court of Appeals on review. Let it be made very clear that hereafter the Court will no longer countenance, but will give short shrift to, pleas like the present, that clearly short-circuit the judicial process and burden it with the resolution of issues properly within the original competence of the lower courts. What has thus far been stated is equally applicable to and decisive of the petition of the Panlilio spouses (G.R. No. 92164) which is virtually Identical to that of petitioner Enrile in factual milieu and is therefore determinable on the same principles already set forth. Said spouses have uncontestedly pleaded 20 that warrants of arrest issued against them as co-accused of petitioner Enrile in Criminal Case No. 90-10941, that when they appeared before NBI Director Alfredo Lim in the afternoon of March 1, 1990, they were taken into custody and detained without bail on the strength of said warrants in violation-they claim-of their constitutional rights.
It may be that in the light of contemporary events, the act of rebellion has lost that quitessentiany quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the news these days, as often perpetrated against innocent civilians as against the military, but by and large attributable to, or even claimed by so-called rebels to be part of, an ongoing rebellion. It is enough to give anyone pause-and the Court is no exception-that not even the crowded streets of our capital City seem safe from such unsettling violence that is disruptive of the public peace and stymies every effort at national economic recovery. There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to be considered as absorbed thereby, so that it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is properly within its province. WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs. Hernandez, the questioned information filed against petitioners Juan Ponce Enrile and the spouses Rebecco and Erlinda Panlilio must be read as charging simple rebellion only, hence said petitioners are entitled to bail, before final conviction, as a matter of right. The Court's earlier grant of bail to petitioners being merely provisional in character, the proceedings in both cases are ordered REMANDED to the respondent Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixed by said respondent for any of the petitioners, the corresponding bail bond flied with this Court shall become functus oficio. No pronouncement as to costs. SO ORDERED. Cruz, Gancayco and Regalado, JJ., concur. Medialdea, J., concurs in G.R. No. 92164 but took no part in G.R. No. 92163. Cortes and Grio-Aquino, JJ., are on leave.
Separate Opinions
MELENCIO-HERRERA, J., concurring: I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three decades, remains good law and, thus, should remain undisturbed, despite periodic challenges to it that, ironically, have only served to strengthen its pronouncements. I take exception to the view, however, that habeas corpus was not the proper remedy.
Had the Information filed below charged merely the simple crime of Rebellion, that proposition could have been plausible. But that Information charged Rebellion complexed with Murder and Multiple Frustrated Murder, a crime which does not exist in our statute books. The charge was obviously intended to make the penalty for the most serious offense in its maximum period imposable upon the offender pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended in the Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court. Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court would not have brought about the speedy relief from unlawful restraint that petitioner was seeking. During the pendency of said Motion before the lower Court, petitioner could have continued to languish in detention. Besides, the Writ of Habeas Corpus may still issue even if another remedy, which is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663). It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a process issued by a Court. The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be deemed to have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus is thus available. The writ of habeas corpus is available to relieve persons from unlawful restraint. But where the detention or confinement is the result of a process issued by the court or judge or by virtue of a judgment or sentence, the writ ordinarily cannot be availed of. It may still be invoked though if the process, judgment or sentence proceeded from a court or tribunal the jurisdiction of which may be assailed. Even if it had authority to act at the outset, it is now the prevailing doctrine that a deprivation of constitutional right, if shown to exist, would oust it of jurisdiction. In such a case, habeas corpus could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis emphasis]. The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional right to bail inasmuch as rebellion, under the present state of the law, is a bailable offense and the crime for which petitioner stands accused of and for which he was denied bail is non-existent in law. While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court from taking cognizance of petitions brought before it raising urgent constitutional issues, any procedural flaw notwithstanding. The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil. 805), the writ of habeas corpus being the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through barriers of form and procedural mazes-have always been emphasized and jealously guarded by courts and lawmakers (Gumabon v. Director of Bureau of Prisons, 37 SCRA 420) [emphasis supplied]. The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about by the insistence of the prosecution to charge the crime of Rebellion complexed with other common offenses notwithstanding the fact that this Court had not yet ruled on the validity of that charge and had granted provisional liberty to petitioner.
If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion perpetua), the remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed, for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly provided that Article 134 (and others enumerated) of the Revised Penal Code was "restored to its full force and effect as it existed before said amendatory decrees." Having been so repealed, this Court is bereft of power to legislate into existence, under the guise of re-examining a settled doctrine, a "creature unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to the lower Court for further proceedings is in order. The Writ of Habeas Corpus has served its purpose.
GUTIERREZ, JR., J., concurring: I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion may not be complexed with murder, the Court emphasizes that it cannot legislate a new-crime into existence nor prescribe a penalty for its commission. That function is exclusively for Congress. I write this separate opinion to make clear how I view certain issues arising from these cases, especially on how the defective informations filed by the prosecutors should have been treated. I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to assert the right to bail. Under the special circumstances of this case, however, the petitioners had no other recourse. They had to come to us. First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956) that there is no such crime in our statute books as rebellion complexed with murder, that murder committed in connection with a rebellion is absorbed by the crime of rebellion, and that a resort to arms resulting in the destruction of life or property constitutes neither two or more offenses nor a complex crime but one crime-rebellion pure and simple. Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All lawyers and even law students are aware of the doctrine. Attempts to have the doctrine re-examined have been consistently rejected by this Court. Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby installing the new crime of rebellion complexed with offenses like murder where graver penalties are imposed by law. However, President Aquino using her then legislative powers expressly repealed PD 942 by issuing Exec. Order 187. She thereby erased the crime of rebellion complexed with murder and made it clear that the Hernandez doctrine remains the controlling rule. The prosecution has not explained why it insists on resurrecting an offense expressly wiped out by the President. The prosecution, in effect, questions the action of the President in repealing a repressive decree, a decree which, according to the repeal order, is violative of human rights. Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the picture. Decisions of this Court form part of our legal system. Even if we declare that rebellion may be complexed with murder, our declaration can not be made retroactive where the effect is to imprison a person for a crime which did not exist until the Supreme Court reversed itself. And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings charged in the information were committed "on the occasion of, but not a necessary means for, the commission of rebellion" result in outlandish consequences and ignore the basic nature of rebellion.
Thus, under the prosecution theory a bomb dropped on PTV-4 which kills government troopers results in simple rebellion because the act is a necessary means to make the rebellion succeed. However, if the same bomb also kills some civilians in the neighborhood, the dropping of the bomb becomes rebellion complexed with murder because the killing of civilians is not necessary for the success of a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the commission of rebellion. This argument is puerile. The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate crime of rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of machine gun bullets be broken up into a hundred or thousands of separate offenses, if each bomb or each bullet happens to result in the destruction of life and property. The same act cannot be punishable by separate penalties depending on what strikes the fancy of prosecutorspunishment for the killing of soldiers or retribution for the deaths of civilians. The prosecution also loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying waste of civilian economies, the massacre of innocent people, the blowing up of passenger airplanes, and other acts of terrorism are all used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels for each single act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in lieu of still-to- beenacted legislation. The killing of civilians during a rebel attack on military facilities furthers the rebellion and is part of the rebellion. The trial court was certainly aware of all the above considerations. I cannot understand why the trial Judge issued the warrant of arrest which categorically states therein that the accused was not entitled to bail. The petitioner was compelled to come to us so he would not be arrested without bail for a nonexistent crime. The trial court forgot to apply an established doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34 years of established procedure based on a well-known Supreme Court ruling. All courts should remember that they form part of an independent judicial system; they do not belong to the prosecution service. A court should never play into the hands of the prosecution and blindly comply with its erroneous manifestations. Faced with an information charging a manifestly nonexistent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible, make it conform to the law. A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision consistently followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to express his reservations in the body of his decision, order, or resolution. However, any judgment he renders, any order he prescribes, and any processes he issues must follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or ignore precedents of the Supreme Court. In this particular case, it should have been the Solicitor General coming to this Court to question the lower court's rejection of the application for a warrant of arrest without bail. It should have been the Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed from their arrest for a non-existent crime. The principle bears repeating: Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task of
ascertaining the significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with finality, logically and rightly, through the highest judicial organ, this Court. What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the opinion in Barrera further emphasizes the point: Such a thought was reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all other courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court of First Instance of Manila (Br. VI), L26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and VirJen Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577 [1983]) I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In the case of the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed with murder exists only in the minds of the prosecutors, not in the records of the case. I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened intently to the oral arguments during the hearing and it was quite apparent that the constitutional requirement of probable cause was not satisfied. In fact, in answer to my query for any other proofs to support the issuance of a warrant of arrest, the answer was that the evidence would be submitted in due time to the trial court. The spouses Panlilio and one parent have been in the restaurant business for decades. Under the records of these petitions, any restaurant owner or hotel manager who serves food to rebels is a coconspirator in the rebellion. The absurdity of this proposition is apparent if we bear in mind that rebels ride in buses and jeepneys, eat meals in rural houses when mealtime finds them in the vicinity, join weddings, fiestas, and other parties, play basketball with barrio youths, attend masses and church services and otherwise mix with people in various gatherings. Even if the hosts recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former are co-conspirators in a rebellion. The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the petitioners served food to rebels at the Enrile household and a hotel supervisor asked two or three of their waiters, without reason, to go on a vacation. Clearly, a much, much stronger showing of probable cause must be shown. In Salonga v. Cruz Pao, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in the heinous bombing of innocent civilians because the man who planted the bomb had, sometime earlier, appeared in a group photograph taken during a birthday party in the United States with the Senator and other guests. It was a case of conspiracy proved through a group picture. Here, it is a case of conspiracy sought to proved through the catering of food. The Court in Salonga stressed:
The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. (id., pp. 461- 462) Because of the foregoing, I take exception to that part of the ponencia which will read the informations as charging simple rebellion. This case did not arise from innocent error. If an information charges murder but its contents show only the ingredients of homicide, the Judge may rightly read it as charging homicide. In these cases, however, there is a deliberate attempt to charge the petitioners for an offense which this Court has ruled as non-existent. The prosecution wanted Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under our rulings, does not exist, those informations should be treated as null and void. New informations charging the correct offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the Principle in Salonga v. Cruz Patio, et al. (supra) has been violated. The Court is not, in any way, preventing the Government from using more effective weapons to suppress rebellion. If the Government feels that the current situation calls for the imposition of more severe penalties like death or the creation of new crimes like rebellion complexed with murder, the remedy is with Congress, not the courts. I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void informations for a non-existent crime.
FELICIANO, J., concurring: I concur in the result reached by the majority of the Court.
I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law, could stand reexamination or clarification. I have in mind in particular matters such as the correct or appropriate relationship between Article 134 and Article 135 of the Revised Penal Code. This is a matter which relates to the legal concept of rebellion in our legal system. If one examines the actual terms of Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it would appear that this Article specifies both the overt acts and the criminal purpose which, when put together, would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is committed by rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for the purpose of (i.e., the specific criminal intent or political objective) removing from the allegiance to said government or its laws the territory of the Republic of the Philippines or any part thereof, or any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of their powers or prerogatives." At the same time, Article 135 (entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular measures which appear to fall under the rubric of rebellion or insurrection: "engaging in war against the forces of the Government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated." Are these modalities of rebellion generally? Or are they particular modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion or insurrection" commit rebellion, or particular modes of participation in a rebellion by public officers or employees? Clearly, the scope of the legal concept of rebellion relates to the distinction between, on the one hand, the indispensable acts or ingredients of the crime of rebellion under the Revised Penal Code and, on the other hand, differing optional modes of seeking to carry out the political or social objective of the rebellion or insurrection. The difficulty that is at once raised by any effort to examine once more even the above threshold questions is that the results of such re-examination may well be that acts which under the Hernandez doctrine are absorbed into rebellion, may be characterized as separate or discrete offenses which, as a matter of law, can either be prosecuted separately from rebellion or prosecuted under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and Clause 2 thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a conclusion in the case at bar, would, as far as I can see, result in colliding with the fundamental nonretroactivity principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code). The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but rather bear upon the lives of people with the specific form given them by judicial decisions interpreting their norms. Judicial decisions construing statutory norms give specific shape and content to such norms. In time, the statutory norms become encrusted with the glosses placed upon them by the courts and the glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes part of the law as of the date that the law was originally enacted, I believe this theory is not to be applied rigorously where a new judicial doctrine is announced, in particular one overruling a previous existing doctrine of long standing (here, 36 years) and most specially not where the statute construed is criminal in nature and the new doctrine is more onerous for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule whether in respect of legislative acts or judicial decisions has constitutional implications. The prevailing rule in the United States is that a judicial decision that retroactively renders an act criminal or enhances the severity of the penalty prescribed for an offense, is vulnerable to constitutional challenge based upon the rule against ex post facto laws and the due process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339 [1989]).
It is urged by the Solicitor General that the non-retroactivity principle does not present any real problem for the reason that the Hernandez doctrine was based upon Article 48, second clause, of the Revised Penal Code and not upon the first clause thereof, while it is precisely the first clause of Article 48 that the Government here invokes. It is, however, open to serious doubt whether Hernandez can reasonably be so simply and sharply characterized. And assuming the Hernandez could be so characterized, subsequent cases refer to the Hernandez doctrine in terms which do not distinguish clearly between the first clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical question would be whether a man of ordinary intelligence would have necessarily read or understood the Hernandez doctrine as referring exclusively to Article 48, second clause. Put in slightly different terms, the important question would be whether the new doctrine here proposed by the Government could fairly have been derived by a man of average intelligence (or counsel of average competence in the law) from an examination of Articles 134 and 135 of the Revised Penal Code as interpreted by the Court in the Hernandez and subsequent cases. To formulate the question ill these terms would almost be to compel a negative answer, especially in view of the conclusions reached by the Court and its several Members today. Finally, there appears to be no question that the new doctrine that the Government would have us discover for the first time since the promulgation of the Revised Penal Code in 1932, would be more onerous for the respondent accused than the simple application of the Hernandez doctrine that murders which have been committed on the occasion of and in furtherance of the crime of rebellion must be deemed absorbed in the offense of simple rebellion. I agree therefore that the information in this case must be viewed as charging only the crime of simple rebellion.
FERNAN, C.J., concurring and dissenting: I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to redefine the applicability of said doctrine so as to make it conformable with accepted and well-settled principles of criminal law and jurisprudence. To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the rule that all common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in the instant case that 'Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion" (p. 9, Decision). The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during the communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since then have far-reaching effects on the all-embracing applicability of the doctrine considering the emergence of alternative modes of seizing the powers of the duly constituted Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their consequent effects on the lives of our people. The doctrine was good law then, but I believe that there is a certain aspect of the Hernandez doctrine that needs clarification.
With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant case, should have further considered that distinction between acts or offenses which are indispensable in the commission of rebellion, on the one hand, and those acts or offenses that are merely necessary but not indispensable in the commission of rebellion, on the other. The majority of the Court is correct in adopting, albeit impliedly, the view in Hernandez case that when an offense perpetrated as a necessary means of committing another, which is an element of the latter, the resulting interlocking crimes should be considered as only one simple offense and must be deemed outside the operation of the complex crime provision (Article 48) of the Revised Penal Code. As in the case of Hernandez, the Court, however, failed in the instant case to distinguish what is indispensable from what is merely necessary in the commission of an offense, resulting thus in the rule that common crimes like murder, arson, robbery, etc. committed in the course or on the occasion of rebellion are absorbed or included in the latter as elements thereof. The relevance of the distinction is significant, more particularly, if applied to contemporaneous events happening in our country today. Theoretically, a crime which is indispensable in the commission of another must necessarily be an element of the latter; but a crime that is merely necessary but not indispensable in the commission of another is not an element of the latter, and if and when actually committed, brings the interlocking crime within the operation of the complex crime provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed against Government forces and property in the course of rebellion are properly considered indispensable overt acts of rebellion and are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed against the civilian population in the course or on the occasion of rebellion and in furtherance thereof, may be necessary but not indispensable in committing the latter, and may, therefore, not be considered as elements of the said crime of rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between government forces and the rebels are absorbed in the rebellion, and would be those resulting from the bombing of military camps and installations, as these acts are indispensable in carrying out the rebellion. But deliberately shooting down an unarmed innocent civilian to instill fear or create chaos among the people, although done in the furtherance of the rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely necessary, but not indispensable. In the latter case, Article 48 of the Revised Penal Code should apply. The occurrence of a coup d' etat in our country as a mode of seizing the powers of the dulyconstituted government by staging surprise attacks or occupying centers of powers, of which this Court should take judicial notice, has introduced a new dimension to the interpretation of the provisions on rebellion and insurrection in the Revised Penal Code. Generally, as a mode of seizing the powers of the duly constituted government, it falls within the contemplation of rebellion under the Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by itself. The manner of its execution and the extent and magnitude of its effects on the lives of the people distinguish a coup d'etat from the traditional definition and modes of commission attached by the Revised Penal Code to the crime of rebellion as applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be executed successfully without its perpetrators resorting to the commission of other serious crimes such as murder, arson, kidnapping, robbery, etc. because of the element of surprise and the precise timing of its execution. In extreme cases where murder, arson, robbery, and other common crimes are committed on the occasion of a coup d' etat, the distinction referred to above on what is necessary and what is indispensable in the commission of the coup d'etat should be painstakingly considered as the Court should have done in the case of herein petitioners. I concur in the result insofar as the other issues are resolved by the Court but I take exception to the vote of the majority on the broad application of the Hernandez doctrine. BIDIN, J., concurring and dissenting:
I concur with the majority opinion except as regards the dispositive portion thereof which orders the remand of the case to the respondent judge for further proceedings to fix the amount of bail to be posted by the petitioner. I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing bail since we have construed the indictment herein as charging simple rebellion, an offense which is bailable. Consequently, habeas corpus is the proper remedy available to petitioner as an accused who had been charged with simple rebellion, a bailable offense but who had been denied his right to bail by the respondent judge in violation of petitioner's constitutional right to bail. In view thereof, the responsibility of fixing the amount of bail and approval thereof when filed, devolves upon us, if complete relief is to be accorded to petitioner in the instant proceedings. It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused before the Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and Section 3, Rule 114). Petitioner is, before Us, on a petition for habeas corpus praying, among others, for his provisional release on bail. Since the offense charged (construed as simple rebellion) admits of bail, it is incumbent upon us m the exercise of our jurisdiction over the petition for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to bail and having admitted him to bail, to fix the amount thereof in such sums as the court deems reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith be certified to the respondent trial court (Section 14, Rule 102). Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional release pursuant to our resolution dated March 6, 1990 should now be deemed and admitted as his bail bond for his provisional release in the case (simple rebellion) pending before the respondent judge, without necessity of a remand for further proceedings, conditioned for his (petitioner's) appearance before the trial court to abide its order or judgment in the said case.
SARMIENTO, J., concurring and dissenting: I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it has firmly settled in the tomes of our jurisprudence as correct doctrine. As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which implies "resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. ..." 3 whether committed in furtherance, of as a necessary means for the commission, or in the course, of rebellion. To say that rebellion may be complexed with any other offense, in this case murder, is to play into a contradiction in terms because exactly, rebellion includes murder, among other possible crimes. I also agree that the information may stand as an accusation for simple rebellion. Since the acts complained of as constituting rebellion have been embodied in the information, mention therein of murder as a complexing offense is a surplusage, because in any case, the crime of rebellion is left fully described. 4 At any rate, the government need only amend the information by a clerical correction, since an amendment will not alter its substance.
I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I take it that when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty" upon the filing of a bond of P100,000.00, we granted him bail. The fact that we gave him "provisional liberty" is in my view, of no moment, because bail means provisional liberty. It will serve no useful purpose to have the trial court hear the incident again when we ourselves have been satisfied that the petitioner is entitled to temporary freedom.
PADILLA, J., dissenting: I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515 "remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion." I dissent, however, from the majority opinion insofar as it holds that the information in question, while charging the complex crime of rebellion with murder and multiple frustrated murder, "is to be read as charging simple rebellion." The present cases are to be distinguished from the Hernandez case in at least one (1) material respect. In the Hernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been convicted by the trial court of the complex crime of rebellion with murder, arson and robbery, and his plea to be released on bail before the Supreme Court, pending appeal, gave birth to the now celebrated Hernandez doctrine that the crime of rebellion complexed with murder, arson and robbery does not exist. In the present cases, on the other hand, the Court is confronted with an original case, i.e., where an information has been recently filed in the trial court and the petitioners have not even pleaded thereto. Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of whether rebellion can be complexed with murder, arson, robbery, etc. In the present cases, on the other hand, the prosecution and the lower court, not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987 (as statutory law) to bind them to the legal proposition that the crime of rebellion complexed with murder, and multiple frustrated murder does not exist. And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court laid down the Hernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted in hearing, an information charging the petitioners with rebellion complexed with murder an multiple frustrated murder. That information is clearly a nullity and plainly void ab initio. Its head should not be allowed to surface. As a nullity in substantive law, it charges nothing; it has given rise to nothing. The warrants of arrest issued pursuant thereto are as null and void as the information on which they are anchored. And, since the entire question of the information's validity is before the Court in these habeas corpus cases, I venture to say that the information is fatally defective, even under procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court). I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by labelling or "baptizing" it differently from what it announces itself to be. The prosecution must file an entirely new and proper information, for this entire exercise to merit the serious consideration of the courts.
ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the information for rebellion complexed with murder and multiple frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon City, DISMISSED. Consequently, the petitioners should be ordered permanently released and their bails cancelled. Paras, J., concurs.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

The prosecution established the following facts:

The testimony of accused-appellant was corroborated by his wife, Elvira Saberola.[12]

This offense was committed before the passage of R.A. 7659.

G.R. No. 138261

April 17, 2001

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. L-3246

November 29, 1950

People of the Philippines vs. Amado V. Hernandez

1 Facts 2 Arguments 3 Decision 4 Legacy 5 References 6 Original Source

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