Republic of the Philippines attempt to commit an indeterminate offense, inasmuch as its nature in
SUPREME COURT relation to its objective is ambiguous, is not a juridical fact from the
Manila
EN BANC
G.R. No. L-43530 August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a
decision of the Court of First Instance of Iloilo, finding him guilty of
attempted robbery and sentencing him to suffer two years and four months
of prision correccional and to an additional penalty of ten years and one day
of prision mayor for being an habitual delinquent, with the accessory
penalties of the law, and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was
patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo,
caught the accused in the act of making an opening with an iron bar on the
wall of a store of cheap goods located on the last named street. At that time
the owner of the store, Tan Yu, was sleeping inside with another Chinaman.
The accused had only succeeded in breaking one board and in unfastening
another from the wall, when the policeman showed up, who instantly arrested
him and placed him under custody.
The fact above stated was considered and declared unanimously by the
provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as
constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code
punishes is that which has a logical relation to a particular, concrete offense;
that, which is the beginning of the execution of the offense by overt acts of
the perpetrator, leading directly to its realization and consummation. The
standpoint of the Penal Code. There is no doubt that in the case at bar it was
the intention of the accused to enter Tan Yu's store by means of violence,
passing through the opening which he had started to make on the wall, in
order to commit an offense which, due to the timely arrival of policeman
Tomambing, did not develop beyond the first steps of its execution. But it is
not sufficient, for the purpose of imposing penal sanction, that an act
objectively performed constitute a mere beginning of execution; it is
necessary to establish its unavoidable connection, like the logical and natural
relation of the cause and its effect, with the deed which, upon its
consummation, will develop into one of the offenses defined and punished by
the Code; it is necessary to prove that said beginning of execution, if carried
to its complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense. Thus,
in case of robbery, in order that the simple act of entering by means of force
or violence another person's dwelling may be considered an attempt to
commit this offense, it must be shown that the offender clearly intended to
take possession, for the purpose of gain, of some personal property belonging
to another. In the instant case, there is nothing in the record from which such
purpose of the accused may reasonably be inferred. From the fact established
and stated in the decision, that the accused on the day in question was
making an opening by means of an iron bar on the wall of Tan Yu's store, it
may only be inferred as a logical conclusion that his evident intention was to
enter by means of force said store against the will of its owner. That his final
objective, once he succeeded in entering the store, was to rob, to cause
physical injury to the inmates, or to commit any other offense, there is
nothing in the record to justify a concrete finding.1avvphil.et
It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage is wanting, the nature of the
action intended (accion fin) cannot exactly be ascertained, but the
same must be inferred from the nature of the acts executed (accion
medio). Hence, the necessity that these acts be such that by their very
nature, by the facts to which they are related, by the circumstances of
the persons performing the same, and by the things connected
therewith, they must show without any doubt, that they are aimed at
the consummation of a crime. Acts susceptible of double
interpretation , that is, in favor as well as against the culprit, and
which show an innocent as well as a punishable act, must not and
can not furnish grounds by themselves for attempted nor frustrated
 crimes. The relation existing between the facts submitted for accused must be taken into consideration the aggravating circumstances of
appreciation and the offense which said facts are supposed to nighttime and former convictions, inasmuch as the record shows that
produce must be direct; the intention must be ascertained from the several final judgments for robbery and theft have been rendered against him
facts and therefore it is necessary, in order to avoid regrettable and in his favor, the mitigating circumstance of lack of instruction. The
instances of injustice, that the mind be able to directly infer from breaking of the wall should not be taken into consideration as an aggravating
them the intention of the perpetrator to cause a particular injury. This circumstance inasmuch as this is the very fact which in this case constitutes
must have been the intention of the legislator in requiring that in the offense of attempted trespass to dwelling.
order for an attempt to exist, the offender must commence the
commission of the felony directly by overt acts, that is to say, that the The penalty provided by the Revised Penal Code for the consummated
acts performed must be such that, without the intent to commit an offense of trespass to dwelling, if committed with force, is prision
offense, they would be meaningless. correccional in its medium and maximum periods and a fine not exceeding
P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its
leading to the commission of the offense, are not punished except when they minimum and medium periods. Because of the presence of two aggravating
are aimed directly to its execution, and therefore they must have an circumstances and one mitigating circumstance the penalty must be imposed
immediate and necessary relation to the offense." in its maximum period. Pursuant to article 29 of the same Code, the accused
is not entitled to credit for one-half of his preventive imprisonment.
Considering says the Supreme Court of Spain in its decision of
March 21, 1892 that in order to declare that such and such overt Wherefore, the sentence appealed from is revoked and the accused is hereby
acts constitute an attempted offense it is necessary that their held guilty of attempted trespass to dwelling, committed by means of force,
objective be known and established, or that said acts be of such with the aforesaid aggravating and mitigating circumstances and sentenced to
nature that they themselves should obviously disclose the criminal three months and one day of arresto mayor, with the accessory penalties
objective necessarily intended, said objective and finality to serve as thereof and to pay the costs.
ground for the designation of the offense: . . . .
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
In view of the foregoing, we are of the opinion, and so hold that the fact
under consideration does not constitute attempted robbery but attempted
trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and
decisions of the Supreme Court of Spain therein cited). Under article 280 of
the Revised Penal Code, this offense is committed when a private person
shall enter the dwelling of another against the latter's will. The accused may
be convicted and sentenced for an attempt to commit this offense in
accordance with the evidence and the following allegation contained in the
information: "... the accused armed with an iron bar forced the wall of said
store by breaking a board and unfastening another for the purpose of entering
said store ... and that the accused did not succeed in entering the store due to
the presence of the policeman on beat Jose Tomambing, who upon hearing
the noise produced by the breaking of the wall, promptly approached the
accused ... ." Under the circumstances of this case the prohibition of the
owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano,
31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615;
U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-36461 June 29, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HERNANDO DIO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Luis R. Feria for accused-appellant.
ABAD SANTOS, J.:
Automatic review of a decision of the defunct Circuit Criminal Court, 7th
Judicial District, which imposed the death penalty.
An information for robbery with homicide was filed on October 1, 1971,
against Danilo Tobias and a John Doe. The order to arrest Tobias was
returned unserved and he is still on the "Wanted Persons Files."
On December 7, 1971, the information was amended to name Hernando Dio
as the John Doe, the appellant herein. As amended, the information reads:
That on or about the 24th day of July 1971, in Pasay City,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused Danilo Tobias @ Danny
Kulot and Hernando Dio @ Way Kaon, conspiring and
confederating together and mutually helping one another,
with intent to gain and without the knowledge and consent of
the owner, and with the use of 'balisong', one of the accused
was provided with, and by means of force, threats and
intimidation employed upon the latter, did then and there
wilfully, unlawfully and feloniously take, steal and rob away
from one Crispulo P. Alega, one Seiko brand men's wrist
watch (recovered); and the said accused in accordance with
and pursuant to their conspiracy, and in order to carry out
their avowed purpose, with intent to kill did then and there
wilfully, unlawfully and feloniously attack, assault and stab
for several times Crispulo P. Alega, and which "balisong"
was directly aimed at the vital portions of the body of said
Crispulo P. Alega, thus performing all the acts of execution
causing his instantaneous death. (Expediente, p. 68.)
Accused Hernando Dio pleaded not guilty when he was arraigned and after
trial the court rendered the following judgment:
WHEREFORE, finding the accused, Hernando Dio, Guilty,
beyond reasonable doubt, of the crime of Robbery with
Homicide as defined under Article 294 of the Revised Penal
Code, as charged in the Amended Information, the Court
hereby sentences him to suffer the penalty of DEATH; to
indemnify the heirs of the victim, Crispulo Alega the amount
of P12,000.00; to pay moral damages in the amount of
P10,000.00 and another P10,000.00, as exemplary damages;
and to pay the costs. (Id.,pp. 105-106.)
The People's version of the facts is as follows:
At about noontime on July 24, 1971, Crispulo Alega, a civil
engineer by profession working at the Sugar Construction
Company, with a salary of more than P500.00 a month went
to the Southeastern College, Pasay City to fetch his
girlfriend, Remedios Maniti, a third year high school student
thereat (pp. 55, 59, 63-64, 11 1973). They proceeded to the
Pasay City Public Market. As they were going up the stairs
leading to the Teresa and Sons Restaurant, Remedios, who
was was about an arms-length ahead of Crispulo suddenly
heard the dropping of her folders and other things, being
carried by Crispulo. When she looked back, she saw a man
later Identified as Danilo Tobias but still at large
twisting the neck of Crispulo, while the appellant was
holding his (Crispulo's) two hands (pp. 56-57, 61, tsn., Id.).
The appellant and his companion tried to divest Crispulo of
his "Seiko" wrist watch, but Crispulo resisted their attempt
and fought the robbers. At this juncture, the man who was
twisting the neck of Crispulo stabbed the latter on the left
side of his chest. Crispulo ran down the stairs followed by
Remedies who shouted for help. When he reached the front
of the Pasay Commercial Bank he fell down and expired. At
the time of his death, the "Seiko" watch was strapped to his
wrist. (pp. 57-61, tsn., Id., pp. 7-9, tsn., Jan. 22,
1973).lwphl@it
An autopsy conducted on the victim's body by Dr. Ricardo
Ibarola medicolegal officer of the NBI revealed that the
cause of death was a stab wound at the region below his left
breast which penetrated the heart. Said doctor opined that
judging from the natural appearance of the stab wound, it
must have been caused by a single-bladed pointed
instrument (pp. 6, 13-14, tsn., Jan. 11, 1973; Exh. C and C-1,
p. 87, rec.). The necropsy report (Exh. A, p. 85, rec.) stated
that the decease sustained the following injuries:
Abrasions: right zygomatic region, 0.6 x 0.4
infralabial region, right side 1.7 x 1.4 come
forearm right, upper third, posterolateral
aspect, 0.6 x 0.4 clean and left, lower third,
posterior aspect, 0.4 x 0.2 come right knee,
0.6 x 0.4 come right leg, upper third,
anterior aspect, 1.4 x 0.8
Incise wounds, neck, left supers-lateral
aspect, two in number, 2.5 and 1.2 crime in
lengths, both superficial
Stab wound: left inframammary region,
level of the 5th intercostal space along the
parasternal line, 6.0 cm. from the anterior
midline, 0.5 crime below the left nipple,
elliptical in shape, 3.0 cm. long extended
laterally by 3.0 crime long rising slightly
downwards, medially edges, clean cut,
sutured, medial extremity of which is blunt
and lateral extremity, sharp; directed
upwards, medially and backwards involving,
among others, the soft tissues, thru the 5th
intercostal muscles, grazing the 6th rib
superiorly, perforating the left pleural cavity
only, into the middle mediastinum by
penetrating the pericardium antero-
inferiorly, perforating the interventricular
system and penetrating the left ventricle of
the heart at its apical portions, approximate
depth 11.0 cm.
After the appellant's arrest on October 24, 1972, he was
investigated at the Detective Bureau of the Pasay City Police
Department and gave a statement (Exh. D, p. 90, rec.) in the
presence of Pat. Arturo Rimorin admitting that on the date
and nine of the incident, he and his co-accused, Danilo
Tobias administrative Kardong Kaliwa alias Danny Kulot,
held up a man and a woman; that they did not get the watch
of the man; that he held the victim's hands but the latter was
able to free himself; that Danny Kulot stabbed the man, that
when the victim ran, they also ran away; and that he did not
know what happened to the victim (Exhs. D, D-1, D-2, D-3,
D-4 and D-5, p. 90, rec.; pp. 27-3 1, tsn., Jan. 11, 1973).
(Brief, pp. 2-6.)
Atty. Luis R. Feria, counsel de oficio of the appellant, states:
After a careful, considered and conscientious examination of
the evidence adduced in the instant case, undersigned
counsel is constrained to conclude that the findings of fact of
the trial court, upholding the version of the prosecution as
against that of the defense, must have to be sustained. As
against the sole and uncorroborated testimony of appellant
merely denying any participation in the commission of the
crime imputed to him (while admitting that he was present at
the scene of the crime), there is a formidable array of
evidence against him consisting of the clear and convincing
testimony of Remedios Maniti, who was in the company of
the deceased at the time he was killed and an eyewitness to
the entire incident; the extra-judicial written confession of
defendant-appellant (Exhibit D) admitting participation in
the commission of the crime; the testimony of Patrolman
Arturo Rimorin who conducted the investigation of, and
before whom Exhibit D was executed and signed by,
defendant- appellant, as well straight the testimony of Sgt.
Geronimo de los Santos of the Pasay Police to whom
defendant-appellant orally admitted that he held the victim's
hands although he had no part in the actual stabbing of the
deceased.
With respect to the testimony of the eyewitness Remedios
Maniti there is absolutely nothing in the record (except
perhaps that she was the sweetheart of the deceased) to
show, or even hint, that she had any reasons to perjure
herself by falsely incriminating defendant-appellant in such a
grievous crime, no bias, interest or prejudice against the
latter as would move or induce her to faithlessly accuse him
of a crime which he had not committed. More than ever, the
time-honored ruling of this Honorable Court, too elemental
to require citations, that the findings of the trial court on the
question of credibility of the witnesses, having had the
advantage of observing their demeanor and manner of
testifying, should not be disturbed in the absence of strong
and cogent reasons therefor, applies fully to the case at bar.
No such reasons can be found herein.
The same observations may be made with respect to the
testimonies of Patrolman Rimorin and Sgt. de los Santos.
Moreover, as has been held by this Honorable Court, where
the prosecution witnesses, being government employees who
testified as to what transpired in the performance of their
duties, were neutral and disinterested and had no reason to
falsely testify against the accused, and did not subject him to
any violence, torture or bodily harm, their testimonies should
be given more weight than that of the accused (P. v. Pereto,
21 SCRA 1469: P. v. Del Castillo, 25 SCRA 716.)
Then there is the extrajudicial confession of defendant-
appellant, Exhibit D. True it is that, belatedly during the trial,
appellant claimed that his answers appearing in Exhibit D
were given because he was afraid as he was intimidated and
struck on the buttock with a long piece of wood (pp. 32-34,
t.s.n. Ses. of January 22, 1973). It is submitted that this last-
minute, desperate and uncorroborated claim falls flat in the
face not only of the presumption of voluntariness in the
execution of confessions, but also of the testimony of
Patrolman Rimorin to the effect that Exhibit D was executed
voluntarily and that defendant-appellant was never
maltreated (pp. 26, 31-32, t.s.n. Ses. of January 11, 1973),
and the latter's own admission that before he signed Exhibit
D, its contents were first read to him in Tagalog and that he
fully understood the same (pp. 24, t.s.n. Ses. of January 22,
1973), and his further admission that he has not filed any
case against those who had allegedly maltreated him (p. 33,
t.s.n, Id.). Moreover, where the alleged confession reveals
spontaneity of the declarations belying the claim that they
were concocted or dictated by the police, the court win reject
the case that the confession was involuntary (P. v. Castro, 11
SCRA 699).lwphl@it (Brief, pp. 3-5.)
Notwithstanding the foregoing factual admission, Atty. Feria makes the
following assignment of errors:
1. THE TRIAL COURT ERRED IN CONVICTING
DEFENDANT- APPELLANT OF THE SPECIAL
COMPLEX CRIME OF ROBBERY WITH HOMICIDE AS
DEFINED AND PENALIZED UNDER ART. 294, PAR. 1,
OF THE REVISED PENAL CODE.
2. EVEN ASSUMING THAT THE CRIME COMMITTED
BY DEFENDANT-APPELLANT IS ROBBERY WITH
HOMICIDE, THE TRIAL COURT ERRED IN
SENTENCING HIM TO SUFFER THE DEATH PENALTY.
We have scrutinized the record, particularly the testimonial evidence, and
indeed there is no doubt that the appellant had a hand in the death of Crispulo
Alega. There remains to be considered, however, the claims of the appellant
which are made in the assignment of errors.
The appellant claims in his first assignment of error that he should not have
been convicted of the special complex crime of robbery with homicide
because the robbery was not consummated. He states that there was only an
attempted robbery.
The Solicitor General states:
... We are constrained to agree with defense' contention. The
evidence adduced show that the appellant and his companion
were unsuccessful in their criminal venture of divesting the
 victim of his wrist watch so as to constitute the crime of attempted robbery with homicide and he is sentenced to suffer an
consummated crime of robbery. Indeed, as adverted to indeterminate penalty of 10 years and 1 day of prision mayor as minimum to
earlier, when the victim expired, the 'Seiko' watch was still 20 years of reclusion temporalas maximum, to indemnify the heirs of
securely strapped to his wrist (p. 59, t.s.n., Jan. 11, 1973). Crispulo Alega in the amount of P30,000.00, and to pay one-half of the costs.
The killing of Crispulo Alega may be considered as merely SO ORDERED.
incidental to and an offshoot of the plan to carry out the
robbery, which however was not consummated because of
the resistance offered by the deceased. Consequently, this
case would properly come under the provision of Art. 297 of
the Revised Penal Code which states that

When by reason or on occasion of an

attempted or frustrated robbery a homicide
is committed, the person guilty of such
offenses shall be punished by reclusion
temporalin its maximum period to reclusion
perpetua, unless the homicide committed
shall deserve a higher penalty under the
provisions of this Code. (Brief, pp. 5-6.)

In his second assignment of error the appellant claims that the information
does not allege any aggravating circumstance nor was any proved during the
trial.

Again the Solicitor General states:

We likewise agree with the contention of counsel in his

second assigned error that the evidence presented by the
prosecution did not show the attendance of any aggravating
circumstance in the commands of the crime and neither did
the court a quo make any finding in this respect (pp. 7-8,
appellant's brief). (Id, p. 6.)

The crime committed by the appellant is attempted robbery with homicide

and the penalty prescribed by law is reclusion temporal in its maximum
period to reclusion perpetua. Since there was no attendant mitigating nor
aggravating circumstance, the penalty should be applied in its medium
period, i.e. 18 years, 8 months and 1 day to 20 years. The Indeterminate Republic of the Philippines
Sentence Law has also to be applied. SUPREME COURT
Manila
WHEREFORE, the judgment of the trial court is hereby modified; the
appellant is found guilty beyond reasonable doubt of the special complex
 SECOND DIVISION
G.R. No. 79123-25 January 9, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EMELIANO TRINIDAD, accused-appellant.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellant.
MELENCIO-HERRERA, J.:
On the sole issue that the adduced evidence is insufficient to prove his guilt
beyond reasonable doubt of two crimes of Murder and one of Frustrated
Murder with which he has been charged, accused Emeliano Trinidad appeals
from the judgment of the Regional Trial Court, Branch 7, Bayugan, Agusan
del Sur.
From the testimony of the principal witness, Ricardo TAN, the prosecution
presents the following factual version:
The deceased victim, Lolito Soriano, was a fish dealer based in Davao City.
His helpers were TAN, a driver, and the other deceased victim Marcial
LAROA. On 19 January 1983, using a Ford Fiera, they arrived at Butuan
City to sell fish. In the morning of 20 January 1983 SORIANO drove the
Fiera to Buenavista, Agusan del Norte, together with LAROA and a helper of
one Samuel Comendador. TAN was left behind in Butuan City to dispose of
the fish left at the Langihan market. He followed SORIANO and LAROA,
however, to Buenavista later in the morning.
While at Buenavista, accused Emeliano TRINIDAD, a member of the
Integrated National Police, assigned at Nasipit Police Station, and residing at
Baan, Butuan City, asked for a ride to Bayugan, Agusan del Sur, which is on
the way to Davao City. TRINIDAD was in uniform and had two firearms, a
carbine, and the other, a side-arm .38 caliber revolver. SORIANO, LAROA,
TAN, and TRINIDAD then left Butuan on 20 January 1983 at about 5:20
P.M. bound for Davao City. TAN was driving the Fiera. Seated to his right
was SORIANO, LAROA and the accused TRINIDAD, in that order. When
they reached the stretch between El Rio and Afga, TRINIDAD advised them
to drive slowly because, according to him, the place was dangerous. All of a
sudden, TAN heard two gunshots. SORIANO and LAROA slumped dead.
TAN did not actually see the shooting of LAROA but he witnessed the
shooting of SORIANO having been alerted by the sound of the first gunfire.
Both were hit on the head. TRINIDAD had used his carbine in killing the
two victims.
TAN then hurriedly got off the Fiera, ran towards the direction of Butuan
City and hid himself in the bushes. The Fiera was still running slowly then
but after about seven (7) to ten (10) meters it came to a halt after hitting the
muddy side of the road. TAN heard a shot emanating from the Fiera while he
was hiding in the bushes.
After about twenty (20) to thirty (30) minutes, when a passenger jeep passed
by, TAN hailed it and rode on the front seat. After a short interval of time, he
noticed that TRINIDAD was seated at the back. Apparently noticing TAN as
well, TRINIDAD ordered him to get out and to approach him (TRINIDAD)
but, instead, TAN moved backward and ran around the jeep followed by
TRINIDAD. When the jeep started to drive away, TAN clung to its side.
TRINIDAD fired two shots, one of which hit TAN on his right thigh. As
another passenger jeep passed by, TAN jumped from the first jeep and ran to
the second. However, the passengers in the latter jeep told him to get out not
wanting to get involved in the affray. Pushed out, TAN crawled until a
member of the P.C. chanced upon him and helped him board a bus for
Butuan City.
TRINIDAD's defense revolved around denial and alibi. He contended that he
was in Cagayan de Oro City on the date of the incident, 20 January 1983. At
that time, he was assigned as a policeman at Nasipit Police Station, Agusan
del Norte. He reported to his post on 19 January 1983 but asked permission
from his Station Commander to be relieved from work the next day, 20
January, as it was his birthday. He left Baan, his Butuan City residence, at
about 3:00 P.M. on 20 January 1983 and took a bus bound for Cagayan de
Oro City. He arrived at Cagayan de Oro at around 8:00 P.M. and proceeded
to his sister's house at Camp Alagar to get his subsistence allowance, as his
sister was working thereat in the Finance Section.
At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in
addition to his sister. Sgt. Caalim corroborated having seen TRINIDAD then.
Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan at
lunch time on 21 January 1983 arriving at the latter place around 6:00 P.M.,
and went to his house directly to get his service carbine. He was on his way
to Nasipit to report for duty on 21 January 1983 when he was arrested at
around 6:00 P.M. at Buenavista, Agusan del Norte.
After joint trial on the merits and unimpressed by the defense by the Trial
Court** sentenced the accused in an "Omnibus Decision", thus:
WHEREFORE PREMISES CONSIDERED, this Court finds
Emeliano Trinidad GUILTY beyond reasonable doubt of the
crimes of Murder and Frustrated Murder.
In the Frustrated Murder, there being no mitigating
circumstance, and taking into account the provisions of the
Indeterminate Sentence Law, accused Trinidad is meted out a
penalty of:
1) 8 years and 1 day to 12 years of prision mayor medium;
2) to indemnify the complainant the amount of P 5,000.00;
and
3) to pay the costs.
Likewise, in the two murder cases, Trinidad is accordingly
sentenced:
1) to a penalty of Reclusion Perpetua in each case;
2) to indemnify the heirs of Marcial Laroa and Lolito
Soriano the amount of P30,000.00 each; and
3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo).
Before us now, TRINIDAD claims that the Trial Court erred in giving full
faith and credit to TAN's testimony who, TRINIDAD alleges, was an
unreliable witness. That is not so.
We find no variance in the statement made by TAN before the NAPOLCOM
Hearing Officer that when TRINIDAD boarded the Fiera in Buenavista, he
(TAN) was not in the vehicle, and that made in open Court when he said that
he was with TRINIDAD going to Butuan City on board the Fiera. For the
facts disclose that when TRINIDAD boarded the Fiera in Buenavista, TAN
was still in Langihan distributing fish. The Fiera left for Buenavista, driven
by SORIANO between 6:00 to 7:00 A.M., while TAN followed only at
11:00, A.M. in another vehicle. So that when TRINIDAD boarded the Fiera
in Buenavista, TAN was not yet in that vehicle although on the return trip
from Butuan City to Davao City, TAN was already on board. In fact, TAN
was the one driving. TAN's testimony clarifying this point reads:
Q Did you not say in your direct examination that you went to Buenavista,
Agusan del Norte?
A We were in Langihan and since our fishes were not consumed there, we
went to Buenavista.
Q Now, what time did you leave for Buenavista from Langihan?
A It was more or less at 6:00 to 7:00 o'clock.
Q You were riding the fish car which you said?
A I was not able to take the fish car in going to Buenavista because they left
me fishes to be dispatched yet.
Q In other words, you did not go to Buenavista on January 20, 1983?
A I was able to go to Buenavista after the fishes were consumed.
Q What time did you go to Buenavista?
A It was more or less from 11:00 o'clock noon.
Q What transportation did you take?
A I just took a ride with another fish car because they were also going to
dispatch fishes in Buenavista.
Q Now, who then went to Buenavista with the fish car at about 7:00 o'clock
in the morning of January 20, 1983?
A Lolito Soriano and Marcia Laroa with his helper. Q Did you in fact reach
Davao on that date?
Q Now, when this fish car returned to Butuan City who drove it?
A No, sir.
A Lolito Soriano.
Q Could you tell the Court
Q Were you with the fish car in going back to Langihan? why you failed to reach
Davao?
A Yes, sir. (T.S.N., December 6, 1985, pp. 53-54).
A Because we were held-up.
Felimon Comendador, also a fish vendor, and a resident of Butuan City,
testified that he saw TRINIDAD riding in the Fiera on the front seat in the Q Who held-up you?
company of TAN, SORIANO and LAROA, when the Fiera stopped by his
house at Butuan City (TSN, November 5, 1985, pp. 32-33). A Emeliano Trinidad, sir.

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

A We proceeded to Davao. A I have found out that

Lolito Soriano and Marcial
Laroa already fall.
Q Fall dead?
A They were dead because
they were hit at the head.
Q You mean to inform the
Court that these two died
because of that gun shot
bursts?
A Yes, sir.
Q Did you actually see
Trinidad shooting the two?
A I did not see that it was
really Trinidad who shot
Laroa but since I was
already alerted by the first
burst, I have seen that it was
Trinidad who shot Soriano.
Q What was the firearm
used?
A Carbine, sir.
xxxxxx
Q Now, after you saw that
the two fell dead, what did
you do?
A I got out from the Ford
Fiera while it was running.
xxxxxx
Q From the place where you
were because you said you
ran, what transpired next?
A I hid myself at the side of
the jeep, at the bushes.
Q While hiding yourself at
the bushes, what transpired?
A I heard one gun burst.
Q From what direction was
that gun bursts you heard?
A From the Ford Fiera, sir.
Q After that, what
happened?
A At around 20 to 30
minutes, I moved out from
the place where I hid myself
because I wanted to go back
to Butuan, Then, I boarded
the jeep and sat at the front
seat but I found out that
Emeliano Trinidad was at
the back seat.
Q When you found out that
Trinidad was at the back,
what happened?
A He ordered me to get out.
Q Now, when you got
down, what happened?
A When I got out from the
jeep, Trinidad also got out.
Q Tell the Court, what
happened after you and
Trinidad got out from the
jeep?
A He called me because he
wanted me to get near him.
Q What did you do?
A I moved backward.
'Q Now, what did Trinidad
do?
A He followed me.
Q While Trinidad followed
you, what happened?
A I ran away around the
jeep.
Q Now, while you were
running around the jeep,
what happened?
A The driver drove the jeep.
Q Now, after that, what did
you do?
A I ran after the jeep and
then I was able to take the
jeep at the side of it.
Q How about Trinidad,
where was he at that time?
A He also ran, sir.
Q Now, when Trinidad ran
after you what happened?
A Trinidad was able to
catchup with the jeep and
fired his gun.
Q Were you hit?
A At that time I did not
know that I was hit because
it was sudden.
Q When for the first time
did you notice that you were
hit?
A At the second jeep.
Q You mean to inform the
Court that the jeep you first
rode is not the very same
jeep that you took for the
second time?
A No, sir.
Q Now, when you have
notice that you were hit,
what did you do?
A At the first jeep that I
took I was hit, so I got out
from it and stood-up at the
middle of the road so that I
can catch up the other jeep.'
(TSN, December 6, 1985,
pp. 44-49)
TAN's testimony remained unshaken even during cross- examination. No ill
motive has been attributed to him to prevaricate the truth. He was in the
vehicle where the killing transpired was a witness to the actual happening,
and was a victim himself who managed narrowly to escape death despite the
weaponry with which TRINIDAD was equipped.
The defense is correct, however, in contending that in the Frustrated Murder Attempted Murder and sentenced to an indeterminate penalty
case, TRINIDAD can only be convicted of Attempted Murder. TRINIDAD of six (6) months and one (1) day of prision correccional, as
had commenced the commission of the felony directly by overt acts but was minimum, to six (6) years and one (1) day of prision mayor,
unable to perform all the acts of execution which would have produced it by as maximum; to indemnify Ricardo Tan in the sum of
reason of causes other than his spontaneous desistance, such as, that the jeep P5,000,00; and to pay the costs.
to which TAN was clinging was in motion, and there was a spare tire which
shielded the other parts of his body. Moreover, the wound on his thigh was SO ORDERED.
not fatal and the doctrinal rule is that where the wound inflicted on the victim
is not sufficient to cause his death, the crime is only Attempted Murder, the Paras, Padilla, Sarmiento and Regalado, JJ., concur.
accused not having performed all the acts of execution that would have
brought about death (People vs. Phones, L-32754-5, July 21, 1978, 84 SCRA
167; People vs. Garcia, L-40106, March 13, 1980, 96 SCRA 497).

But while the circumstances do spell out the two crimes of Murder, the
penalty will have to be modified. For, with the abolition of capital
punishment in the 1987 Constitution, the penalty for Murder is
now reclusion temporal in its maximum period to reclusion perpetua (People
vs. Lopez, et al. G.R. No. 71876-76, January 25, 1988 citing People vs.
Gavarra, No. L-37673, October 30, 1987; People vs. Masangkay, G.R. No.
73461, October 27, 1987). With no attending mitigating or aggravating
circumstance, said penalty is imposable in its medium period or from
eighteen (18) years, eight (8) months and one (1) day to twenty (20) years.
The penalty next lower in degree for purposes of the Indeterminate Sentence
Law is prision mayor, maximum, to reclusion temporal, medium, or from ten
(10) years and one (1) day to seventeen (17) years and four (4) months
(Article 61, parag. 3, Revised Penal Code).

WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of
Murder (on two counts) and Attempted Murder, having been proven beyond
reasonable doubt, his conviction is hereby AFFIRMED and he is hereby
sentenced as follows:

1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99

below) for Murder, he shall suffer the indeterminate penalty
of ten (10) years and one (1) day of prision mayor, as
minimum, to eighteen (18) years, eight (8) months and one
(1) day of reclusion temporal, as maximum; to indemnify the
heirs of Marcial Laroa and Lolito Soriano, respectively, in EN BANC
the amount of P30,000.00 each; and to pay the costs.
[G.R. No. 129433. March 30, 2000]
2) In Criminal Case No. 79125 (No. 100 below) for
Frustrated Murder, he is hereby found guilty only of
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y
BELLO, accused.
DECISION
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita [1] finally did away with
frustrated rape[2] and allowed only attempted rape and consummated rape to
remain in our statute books. The instant case lurks at the threshold of another
emasculation of the stages of execution of rape by considering almost every
attempt at sexual violation of a woman as consummated rape, that is, if the
contrary view were to be adopted. The danger there is that that concept may
send the wrong signal to every roaming lothario, whenever the opportunity
bares itself, to better intrude with climactic gusto, sans any restraint, since
after all any attempted fornication would be considered consummated rape
and punished as such. A mere strafing of the citadel of passion would then be
considered a deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender
had carnal knowledge of the victim since by it he attained his objective. All
the elements of the offense were already present and nothing more was left
for the offender to do, having performed all the acts necessary to produce the
crime and accomplish it. We ruled then that perfect penetration was not
essential; any penetration of the female organ by the male organ, however
slight, was sufficient. The Court further held that entry of the labia or lips of
the female organ, even without rupture of the hymen or laceration of the
vagina, was sufficient to warrant conviction for consummated rape. We
distinguished consummated rape from attempted rape where there was no
penetration of the female organ because not all acts of execution were
performed as the offender merely commenced the commission of a felony
directly by overt acts. [3] The inference that may be derived therefrom is that
complete or full penetration of the vagina is not required for rape to be
consummated. Any penetration, in whatever degree, is enough to raise the
crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by
requiring entry into the labia or lips of the female organ, even if there be no
rupture of the hymen or laceration of the vagina, to warrant a conviction for
consummated rape. While the entry of the penis into the lips of the female
organ was considered synonymous with mere touching of the external
genitalia, e.g., labia majora, labia minora, etc.,[4] the crucial doctrinal bottom
line is that touching must be inextricably viewed in light of, in relation to, or
as an essential part of, the process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the touching must be tacked
to the penetration itself. The importance of the requirement of penetration,
however slight, cannot be gainsaid because where entry into the labia or the
lips of the female genitalia has not been established, the crime committed
amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape
has been committed either in its attempted or in its consummated stage;
otherwise, no substantial distinction would exist between the two, despite the
fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably
spells the difference between life and death for the accused - a reclusive life
that is not even perpetua but only temporalon one hand, and the ultimate
extermination of life on the other. And, arguing on another level, if the case
at bar cannot be deemed attempted but consummated rape, what then would
constitute attempted rape? Must our field of choice be thus limited only to
consummated rape and acts of lasciviousness since attempted rape would no
longer be possible in light of the view of those who disagree with
this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape
and sentenced by the court a quo to the extreme penalty of death,[5] hence this
case before us on automatic review under Art. 335 of the Revised Penal Code
as amended by RA 7659.[6]
As may be culled from the evidence on record, on 25 April 1996, at around 4
oclock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year
old Crysthel Pamintuan, went down from the second floor of their house to
prepare Milo chocolate drinks for her two (2) children. At the ground floor
she met Primo Campuhan who was then busy filling small plastic bags with
water to be frozen into ice in the freezer located at the second floor. Primo
was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy
preparing the drinks, she heard one of her daughters cry, "Ayo'ko,
ayo'ko!"[7] prompting Corazon to rush upstairs. Thereupon, she saw Primo
Campuhan inside her childrens room kneeling before Crysthel whose
pajamas or "jogging pants" and panty were already removed, while his short
pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthels vagina.
Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and
boxed him several times. He evaded her blows and pulled up his pants. He
pushed Corazon aside when she tried to block his path. Corazon then ran out
and shouted for help thus prompting her brother, a cousin and an uncle who
were living within their compound, to chase the accused. [8] Seconds later,
Primo was apprehended by those who answered Corazon's call for help. They
held the accused at the back of their compound until they were advised by
their neighbors to call thebarangay officials instead of detaining him for his
misdeed. Physical examination of the victim yielded negative results. No
evident sign of extra-genital physical injury was noted by the medico-legal
officer on Crysthels body as her hymen was intact and its orifice was only
0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He
maintained his innocence and assailed the charge as a mere scheme of
Crysthel's mother who allegedly harbored ill will against him for his refusal
to run an errand for her.[9] He asserted that in truth Crysthel was in a playing
mood and wanted to ride on his back when she suddenly pulled him down
causing both of them to fall down on the floor. It was in this fallen position
that Corazon chanced upon them and became hysterical. Corazon slapped
him and accused him of raping her child. He got mad but restrained himself
from hitting back when he realized she was a woman. Corazon called for
help from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted
Primo. Vicente punched him and threatened to kill him. Upon hearing the
threat, Primo immediately ran towards the house of Conrado Plata but
Vicente followed him there. Primo pleaded for a chance to explain as he
reasoned out that the accusation was not true. But Vicente kicked him
instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised
his hands and turned his back to avoid the blow. At this moment, the relatives
and neighbors of Vicente prevailed upon him to take Primo to
the barangay hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27
May 1997 found him guilty of statutory rape, sentenced him to the extreme
penalty of death, and ordered him to pay his victim P50,000.00 for moral
damages, P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma.
Corazon Pamintuan. He argues that her narration should not be given any
weight or credence since it was punctured with implausible statements and
improbabilities so inconsistent with human nature and experience. He claims
that it was truly inconceivable for him to commit the rape considering that
Crysthels younger sister was also in the room playing while Corazon was just
downstairs preparing Milo drinks for her daughters. Their presence alone as
possible eyewitnesses and the fact that the episode happened within the
family compound where a call for assistance could easily be heard and
responded to, would have been enough to deter him from committing the
crime. Besides, the door of the room was wide open for anybody to see what
could be taking place inside. Primo insists that it was almost inconceivable
that Corazon could give such a vivid description of the alleged sexual contact
when from where she stood she could not have possibly seen the
allegedtouching of the sexual organs of the accused and his victim. He
asserts that the absence of any external signs of physical injuries or of
penetration of Crysthels private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony
of Corazon that she saw Primo with his short pants down to his knees
kneeling before Crysthel whose pajamas and panty were supposedly "already
removed" and that Primo was "forcing his penis into Crysthels vagina." The
gravamen of the offense of statutory rape is carnal knowledge of a woman
below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal
Code. Crysthel was only four (4) years old when sexually molested, thus
raising the penalty, from reclusion perpetua to death, to the single indivisible
penalty of death under RA 7659, Sec. 11, the offended party being below
seven (7) years old. We have said often enough that in concluding that carnal
knowledge took place, full penetration of the vaginal orifice is not an
essential ingredient, nor is the rupture of the hymen necessary; the mere
touching of the external genitalia by the penis capable of consummating the
sexual act is sufficient to constitute carnal knowledge. [10] But the act
oftouching should be understood here as inherently part of the entry of the
penis into the labias of the female organ and not mere touching alone of
the mons pubis or the pudendum.
In People v. De la Pea[11] we clarified that the decisions finding a case for
rape even if the attackers penis merely touched the external portions of the
female genitalia were made in the context of the presence or existence of an
erect penis capable of full penetration. Where the accused failed to achieve
an erection, had a limp or flaccid penis, or an oversized penis which could
not fit into the victim's vagina, the Court nonetheless held that rape was
consummated on the basis of the victim's testimony that the accused
repeatedly tried, but in vain, to insert his penis into her vagina and in all
likelihood reached the labia of herpudendum as the victim felt his organ on
the lips of her vulva,[12] or that the penis of the accused touched the middle
part of her vagina.[13] Thus, touching when applied to rape cases does not
simply mean mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the victims vagina, or
the mons pubis, as in this case. There must be sufficient and convincing proof
that the penis indeed touched the labias or slid into the female organ, and not
merely stroked the external surface thereof, for an accused to be convicted of
consummated rape.[14] As the labias, which are required to be "touched" by
the penis, are by their natural situs or location beneath the mons pubis or the
vaginal surface, to touch them with the penis is to attain some degree of
penetration beneath the surface, hence, the conclusion that touching the labia
majora or the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs
that are visible in the perineal area, e.g., mons pubis, labia majora, labia
minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the
rounded eminence that becomes hairy after puberty, and is instantly visible
within the surface. The next layer is the labia majora or the outer lips of the
female organ composed of the outer convex surface and the inner surface.
The skin of the outer convex surface is covered with hair follicles and is
pigmented, while the inner surface is a thin skin which does not have any
hair but has many sebaceous glands. Directly beneath the labia majora is
the labia minora.[15] Jurisprudence dictates that the labia majora must
be entered for rape to be consummated,[16] and not merely for the penis to
stroke the surface of the female organ. Thus, a grazing of the surface of the
female organ or touching the mons pubis of the pudendum is not sufficient to
constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of
the 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 labiaof
the pudendum,"[18] or "the bombardment of the drawbridge."[19] But, to our
mind, the case at bar merely constitutes a "shelling of the castle of orgasmic
potency," or as earlier stated, a "strafing of the citadel of passion."
A review of the records clearly discloses that the prosecution utterly failed to
discharge its onus of proving that Primos penis was able to penetrate
Crysthels vagina however slight. Even if we grant arguendo that Corazon
witnessed Primo in the act of sexually molesting her daughter, we seriously
doubt the veracity of her claim that she saw the inter-genital contact between
Primo and Crysthel. When asked what she saw upon entering her childrens
room Corazon plunged into saying that she saw Primo poking his penis on
the vagina of Crysthel without explaining her relative position to them as to
enable her to see clearly and sufficiently, in automotive lingo, the contact
point. It should be recalled that when Corazon chanced upon Primo and
Crysthel, the former was allegedly in a kneeling position, which Corazon
described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest
of the accused is pinning down the victim, while his right
hand is holding his penis and his left hand is spreading the
legs of the victim).
It can reasonably be drawn from the foregoing narration that Primos kneeling
position rendered an unbridled observation impossible. Not even a vantage
point from the side of the accused and the victim would have provided
Corazon an unobstructed view of Primos penis supposedly reaching
Crysthels external genitalia, i.e., labia majora, labia minora, hymen, clitoris,
etc., since the legs and arms of Primo would have hidden his movements
from Corazons sight, not to discount the fact that Primos right hand was
allegedly holding his penis thereby blocking it from Corazons view. It is the
burden of the prosecution to establishhow Corazon could have seen
the sexual contact and to shove her account into the permissive sphere of
credibility. It is not enough that she claims that she saw what was done to her
daughter. It is required that her claim be properly demonstrated to inspire
belief. The prosecution failed in this respect, thus we cannot conclude
without any taint of serious doubt that inter-genital contact was at all
achieved. To hold otherwise would be to resolve the doubt in favor of the
prosecution but to run roughshod over the constitutional right of the accused
to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked
intention despite her timely appearance, thus giving her the opportunity to
fully witness his beastly act.
We are not persuaded. It is inconsistent with mans instinct of self-
preservation to remain where he is and persist in satisfying his lust even
when he knows fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother of his victim. For, the
normal behavior or reaction of Primo upon learning of Corazons presence
would have been to pull his pants up to avoid being caught literally with his

pants down. The interval, although relatively short, provided more than
enough opportunity for Primo not only to desist from but even to conceal his
evil design.
What appears to be the basis of the conviction of the accused was Crysthel's
answer to the question of the court -
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily
said, "No." Thus -
Q: But did his penis penetrate your organ?
A: No, sir.[20]
This testimony alone should dissipate the mist of confusion that enshrouds
the question of whether rape in this case was consummated. It has foreclosed
the possibility of Primos penis penetrating her vagina, however slight.
Crysthel made a categorical statement denying penetration, [21] obviously
induced by a question propounded to her who could not have been aware of
the finer distinctions between touching andpenetration. Consequently, it is
improper and unfair to attach to this reply of a four (4)-year old child, whose
vocabulary is yet as underdeveloped as her sex and whose language is bereft
of worldly sophistication, an adult interpretation that because the penis of the
accused touched her organ there was sexual entry. Nor can it be deduced that
in trying to penetrate the victim's organ the penis of the accused touched the
middle portion of her vagina and entered the labia of her pudendum as the
prosecution failed to establish sufficiently that Primo made efforts to
penetrate Crysthel.[22] Corazon did not say, nay, not even hint that Primo's
penis was erect or that he responded with an erection. [23] On the contrary,
Corazon even narrated that Primo had to hold his penis with his right hand,
thus showing that he had yet to attain an erection to be able to penetrate his
victim.
Antithetically, the possibility of Primos penis having breached Crysthels
vagina is belied by the child's own assertion that she resisted Primos
advances by putting her legs close together; [24] consequently, she did not feel
any intense pain but just felt "not happy" about what Primo did to her.
[25]
Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases
where penetration was not fully established, the Court had anchored its
conclusion that rape nevertheless was consummated on the victim's
testimony that she felt pain, or the medico-legal finding of discoloration in
the inner lips of the vagina, or the labia minora was already gaping with
redness, or the hymenal tags were no longer visible.[26] None was shown in
this case. Although a child's testimony must be received with due
consideration on account of her tender age, the Court endeavors at the same
time to harness only what in her story appears to be true, acutely aware of the
equally guaranteed rights of the accused. Thus, we have to conclude that
even on the basis of the testimony of Crysthel alone the accused cannot be
held liable for consummated rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this case
that there were no external signs of physical injuries on complaining witness
body to conclude from a medical perspective that penetration had taken
place. As Dr. Aurea P. Villena explained, although the absence of complete
penetration of the hymen does not negate the possibility of contact, she
clarified that there was no medical basis to hold that there was sexual contact
between the accused and the victim. [27]
In cases of rape where there is a positive testimony and a medical certificate,
both should in all respects complement each other; otherwise, to rely on the
testimonial evidence alone, in utter disregard of the manifest variance in the
medical certificate, would be productive of unwarranted or even mischievous
results. It is necessary to carefully ascertain whether the penis of the accused
in reality entered the labialthreshold of the female organ to accurately
conclude that rape was consummated. Failing in this, the thin line that
separates attempted rape from consummated rape will significantly
disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is
attempted when the offender commences the commission of rape directly by
overt acts, and does not perform all the acts of execution which should
produce the crime of rape by reason of some cause or accident other than his
own spontaneous desistance. All the elements of attempted rape - and only of
attempted rape - are present in the instant case, hence, the accused should be
punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable
penalty of death for the offense charged, which is statutory rape of a minor
below seven (7) years. Two (2) degrees lower is reclusion temporal, the
range of which is twelve (12) years and one (1) day to twenty (20) years.
Applying the Indeterminate Sentence Law, and in the absence of any
mitigating or aggravating circumstance, the maximum of the penalty to be
imposed upon the accused shall be taken from the medium period
of reclusion temporal, the range of which is fourteen (14) years, eight (8)
months and (1) day to seventeen (17) years and four (4) months, while the
minimum shall be taken from the penalty next lower in degree, which
is prision mayor, the range of which is from six (6) years and one (1) day to
twelve (12) years, in any of its periods.

WHEREFORE, the Decision of the court a quo finding accused PRIMO

"SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing
him to death and to pay damages is MODIFIED. He is instead found guilty
of ATTEMPTED RAPE and sentenced to an indeterminate prison term of
eight (8) years four (4) months and ten (10) days of prision mayor medium as
minimum, to fourteen (14) years ten (10) months and twenty (20) days
of reclusion temporal medium as maximum. Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing,

Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr.,
JJ., concur.

Panganiban, J., in the result.

FIRST DIVISION

[G.R. No. 122099. July 5, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO
LISTERIO y PRADO and SAMSON DELA TORRE y
ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
For the deadly assault on the brothers Jeonito Araque and Marlon
Araque, Agapito Listerio y Prado, Samson dela Torre y Esquela, Marlon dela
Torre, George dela Torre, Bonifacio Bancaya and several others who are still
at large were charged in two (2) separate Amended Informations with Murder
and Frustrated Murder.
In Criminal Case No. 91-5842 the Amended Information[1] for Murder
alleges
That on or about the 11th day of August 1991 in the Municipality of
Muntinlupa, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping and aiding one another, all armed with bladed
weapons and GI lead pipes, with intent to kill, treachery and evident
premeditation with abuse of superior strength did then and there willfully,
unlawfully and feloniously attack, assault and stab one Jeonito Araque y
Daniel at the back of his body, thereby inflicting upon the latter mortal
wounds which directly caused his death.
CONTRARY TO LAW.
In Criminal Case No. 91-5843, the Amended Information[2] for
Frustrated Homicide charges:
That on or about the 14th day of May 1991 in the Municipality of
Muntinlupa, Metro Manila, Philippines and within the jurisdiction this
Honorable Court, the above-named accused, conspiring,
confederatingtogether, mutually helping and aiding one another, with intent
to kill did then and there willfully, unlawfully and feloniously stab and hit
with a lead pipe and bladed weapon one Marlon Araque y Daniel on the vital
portions of his body, thereby inflicting serious and mortal wounds which
would have cause[d] the death of the said victim thus performing all the acts
of execution which should have produce[d] the crime of Homicide as a
consequence but nevertheless did not produce it by reason of causes
independent of their will, that is by timely and able medical attendance
rendered to said Marlon Araque y Daniel which prevented his death.
CONTRARY TO LAW.
Upon arraignment, accused Agapito Listerio y Prado and Samson dela
Torre y Esquela pleaded not guilty to the crimes charged. Their other co-
accused have remained at large.
Trial thereafter ensued after which the court a quo rendered judgment
only against accused Agapito Listerio because his co-accused Samson dela
Torre escaped during the presentation of the prosecutions evidence and he
was not tried in absentia. The dispositive portion of the decision[3] reads:
WHEREFORE, finding Accused AGAPITO LISTERIO guilty beyond
reasonable doubt, he is sentenced:
1. For the death of Jeonito Araque y Daniel in Criminal Case NO.
91-5842, RECLUSION PERPETUA;
2. For the attempt to kill Marlon Araque y Daniel, in Criminal Case
No. 91-5843, he is sentenced to six (6) months and one (1) day
as minimum, to four (4) years as maximum;
3. As civil indemnity, he is ordered to indemnify the heirs of
Jeonito Araque y Daniel the sum[s] of :
P54,200.66 as actual damages;
P50,000.00 as moral damages;
P5,000.00 as exemplary damages.
4. And for the damages sustained by Marlon Araque y Daniel, he is
required to pay Marlon Araque y Daniel, the sum[s] of :
P5,000.00 as actual damages;
P5,000.00 as moral damages; and
P5,000.00 as exemplary damages
SO ORDERED.[4]
Dissatisfied, accused Agapito Listerio interposed this appeal alleging
that
I nature of Marlon Araques injuries, Dr. Manimtim explained in detail during
THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE
GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT.
II
THE COURT CONVICTED THE ACCUSED OF THE CRIME OF
MURDER AND ATTEMPTED HOMICIDE DESPITE ABSENCE OF
PROOF OF CONSPIRACY AND AGGRAVATING CIRCUMSTANCE
OF TREACHERY.
The version of the prosecution of what transpired on that fateful day of
August 14, 1991 culled from the eyewitness account of Marlon Araque
discloses that at around 5:00 p.m. of August 14, 1991, he and his brother
Jeonito were in Purok 4, Alabang, Muntinlupa to collect a sum of money
from a certain Tino.[5] Having failed to collect anything from Tino, Marlon
and Jeonito then turned back.[6] On their way back while they were passing
Tramo near Tinos place,[7] a group composed of Agapito Listerio, Samson
dela Torre, George dela Torre, Marlon dela Torre and Bonifacio
Bancaya[8] blocked their path[9] and attacked them with lead pipes and bladed
weapons.[10]
Agapito Listerio, Marlon dela Torre and George dela Torre, who were
armed with bladed weapons, stabbed Jeonito Araque from behind. [11] Jeonito
sustained three (3) stab wounds on the upper right portion of his back,
another on the lower right portion and the third on the middle portion of the
left side of his back[12] causing him to fall down.[13] Marlon Araque was hit on
the head by Samson dela Torre and Bonifacio Bancaya with lead pipes and
momentarily lost consciousness.[14] When he regained his senses three (3)
minutes later, he saw that Jeonito was already dead. [15] Their assailants then
fled after the incident.[16]Marlon Araque who sustained injuries in the arm and
back,[17] was thereafter brought to a hospital for treatment. [18]
Marlon Araque was examined by Dr. Salvador Manimtim, head of the
Medico Legal Division of the UP-PGH, [19] who thereafter issued a Medical
Certificate[20] indicating that Marlon Araque sustained two (2) lacerated
wounds, one measuring 5 centimeters in length located in the center (mid-
parietal area) of the ear.[21] The second lacerated wound measuring 2
centimeters in length is located at the mid-frontal area commonly known as
the forehead.[22] A third lacerated wound measuring 1.5 centimeters long is
located at the forearm[23] and a fourth which is a stab wound measuring 3
centimeters is located at the right shoulder at the collar.[24] Elaborating on the
cross-examination that the two (2) wounds on the forearm and the shoulder
were caused by a sharp object like a knife while the rest were caused by a
blunt instrument such as a lead pipe.[25]
Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an autopsy
on the cadaver of Jeonito Araque[26] and prepared an Autopsy Report[27] of his
findings. The report which contains a detailed description of the injuries
inflicted on the victim shows that the deceased sustained three (3) stab
wounds all of them inflicted from behind by a sharp, pointed and single-
bladed instrument like a kitchen knife, balisong or any similar instrument.
[28]
The first stab wound, measuring 1.7 centimeters with an approximate
depth of 11.0 centimeters, perforated the lower lobe of the left lung and the
thoracic aorta.[29] Considering the involvement of a vital organ and a major
blood vessel, the wound was considered fatal.[30] The second wound,
measuring 2.4 centimeters, affected the skin and underlying soft tissues and
did not penetrate the body cavity.[31] The third wound measuring 2.7
centimeters was like the second and involved only the soft tissues. [32] Unlike
the first, the second and third wounds were non-fatal. [33] Dr. Munoz averred
that of the three, the first and second wounds were inflicted by knife thrusts
delivered starting below going upward by assailants who were standing
behind the victim.[34]
On the other hand, accused-appellants version of the incident is summed
thus in his brief:
1. Accused-appellant is 39 years old, married, side walk vendor and a
resident of Purok 4, Bayanan, Muntinlupa, Metro Manila. He earns a living
by selling vegetables.[35]
2. At around 1:00 oclock in the afternoon of August 14, 1991, Accused-
Appellant was in the store of Nimfa Agustin having a little fun with Edgar
Demolador and Andres Gininao drinking beer. At around 2:00 oclock
Accused-appellant went to his house and slept. [36]
3. While asleep, at about 5 oclock, Edgar Remolador and Andres Gininao
woke him up and told him there was a quarrel near the railroad track. [37]
4. At around 6:00 oclock two (2) policemen passed by going to the house of The account of Marlon Araque as to how they were assaulted by the
Samson de la Torre while Accused-appellant was chatting with Edgar group of accused-appellant was given in a categorical, convincing and
Remolador and Andres Gininao. These two (2) policemen together with co- straightforward manner:
accused Samson de la Torre came back and invited Accused-appellant for
Q Mr. Witness, do you know a certain Jeonito Araque y Daniel?
questioning at the Muntinlupa Police Headquarters together with Edgar
Demolador and Andres Gininao. Subsequently, Edgar Demolador and Andres A Yes, sir.
Gininao were sent home.[38]
Q And why do you know him?
5. At the Police Station, Accused-Appellant was handed a Sinumpaang A He is my brother.
Salaysay executed by Marlon Araque, implicating him for the death of
Jeonito Araque and the frustrated murder of Marlon Araque. Accused- Q Where is Jeonito Araque now?
Appellant confronted Marlon Araque as to why he was being included in the A He is already dead.
case. Marlon Araque answered because you eject[ed] us from your house. [39]
Q When did he die?
Professing his innocence, accused-appellant claims that Marlon Araques A Last August 14.
uncorroborated testimony failed to clearly and positively identify him as the
malefactor responsible for his brothers death. In fine, he insists that Marlons Q Do you know of your own knowledge how he died?
testimony is insufficient to convict him of the crimes charged.
A Yes, sir.
We disagree.
Q Will you please inform the Honorable Court what is your own
It is well settled that witnesses are to be weighed, not numbered, such knowledge?
that the testimony of a single, trustworthy and credible witness could be
A He was stabbed, sir.
sufficient to convict an accused.[40] More explicitly, the well entrenched rule
is that the testimony of a lone eyewitness, if found positive and credible by Q Do you know the person or persons who stabbed him?
the trial court is sufficient to support a conviction especially when the
testimony bears the earmarks of truth and sincerity and had been delivered A Yes, sir.
spontaneously, naturally and in a straightforward manner. It has been held Q Will you please inform the Honorable Court who are these person or
that witnesses are to be weighed not numbered; hence, it is not at all persons, if you know?
uncommon to reach a conclusion of guilt on the basis of the testimony of a
single witness.[41] A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre,
Marlon dela Torre and Bonifacio.
The trial court found Marlon Araques version of what transpired candid
and straightforward. We defer to the lower courts findings on this point Q Now if these persons [are] inside the courtroom, could you identify
consistent with the oft-repeated pronouncement that: the trial judge is the them?
best and the most competent person who can weigh and evaluate the A They (sic) are only two persons but the three persons is (sic) not
testimony of witnesses. His firsthand look at the declarants demeanor, around.
conduct and attitude at the trial places him in a peculiar position to
discriminate between the true and the false. Consequently appellate courts Q Could you please point to this Honorable Court who are these two
will not disturb the trial courts findings save only in cases where arbitrariness persons in side the courtroom?
has set in and disregard for the facts important to the case have been
A Yes, sir (Witness pointing to a persons [sic] and when asked [identified
overlooked.[42]
themselves as] Agapito Listerio and Samson dela Torre.)
Q Now, at around 5:00 oclock in the afternoon of August 14, 1991, do Q Who were the persons that waylaid you?
you recall where were you?
A Agapito Listerio, George and Marlon.
A Yes, sir.
Q How about your brother, what happened to him?
Q Will you please inform the Honorable Court where were you at that
A He fall (sic) down.
time?
A Im in Alabang at Purok 4 and Im collecting. Q And after he fall (sic) down, do you know what happened?
A I was hit by a lead pipe thats why I painted (sic).
Q Do you have any companion at that time?
A Yes, sir. Q Do you know the reason why your brother fall (sic) down?
A I cannot recall, sir. Because I already painted (sic).
Q What are you doing at that time in [that] particular date?
A Im collecting from a certain Tino. Q Do you know the reason why your brother fall (sic) before you painted
(sic)?
Q Were you able to collect?
A Yes, sir.
A No, sir.
Q Will you please inform the Honorable Court why your brother fall (sic)
Q If you said that there were no collections, what did you do? down?
A We went back. xxx xxx xxx
Q When you went back, did you have any companion? A Yes, sir, because he was stabbed.
A Yes, sir. Q What particular place of his body was [he] stabbed if you know?
Q Who was your companion? A At the back of his body.
A My brother. Q Do you know the person or persons who was (sic) stabbed him?
Q While you were going back, was there any untoward incidents that A Yes, sir.
happened?
Q Will you please inform the Honorable Court who was that persons was
A Yes sir Hinarang po kami. stabbed him?
Q Now, what particular place [where] you were waylaid, if you recall? A Agapito, Marlon and George.
A In Tramo, near Tinos place. COURT
Q And who were the persons that were waylaid (sic)? How many stabbed [him], if you know?
A Agapito Listerio, Samson dela Torre, George dela Torre and Bonifacio. A Three (3), sir.
Q Will you please inform the Honorable Court how will (sic) you waylaid COURT
by these persons?
In what particular part of his body was stabbed wound (sic)?
A We were walking then suddenly they stabbed us with knife (sic) and
ran afterwards.
 A Witness pointing to his back upper right portion of the back, another on Q And did you not have a drinking spree with George dela Torre?
the lower right portion and another on the middle portion of the left
A No, sir.
side at the back.
COURT Q Marlon dela Torre?
A No, sir.
Proceed.
Q Will you please inform the Honorable Court why you are (sic) lost Q Bonifacio?
consciousness? A With your borther (sic)?
A I was hit by [a] lead pipe by Samson and Bonifacio. Q So you want to tell this Honorable Court that there was no point in time
on August 14, 1991 at 4:00 p.m. that you did not take a sip of wine?
Q And when did you regain consciousness?
A After three minutes. A No, sir.
Q Neither your brother?
Q And when you gain[ed] consciousness, what happened to your brother?
A He was already dead. Atty. Agoot
Objection, Your Honor, the question is vague.
Q How about you, what did you do?
A I go (sic) to the Hospital. COURT
Ask another question.
Q How about the accused, the persons who way laid, what happened to
them? Q Mr. Witness, will you please tell the Honorable Court where this
[43] George dela Torre, Marlon dela Torre and a certain Bonifacio were?
A From what I know, they ran away.
Persistent efforts by defense counsel to establish that the attack was Atty. Agoot
provoked, by eliciting from Marlon Araque an admission that he and the Witness is incompetent.
deceased had a drinking spree with their attackers prior to the incident,
proved futile as Marlon steadfastly maintained on cross examination that he Q Mr. Witness, you testified that it was your brother the deceased who
and his brother never drank liquor on that fateful day: invited you to Purok 4?

Q After your work, was there an occasion when you drink something with A Yes, sir.
your borther (sic)? Atty. Lumakang
A No, sir. That will be all for the witness, your Honor.[44]
Q And you stand to your testimony that you never drink (sic) on August That Marlon was able to recognize the assailants can hardly be doubted
14, 1991? because relatives of the victim have a natural knack for remembering the
A Yes, sir. faces of the attackers and they, more than anybody else, would be concerned
with obtaining justice for the victim by the felons being brought to the face
Q Were (sic) there no occasion on August 14, 1991 when you visited of the law.[45] Indeed, family members who have witnessed the killing of a
Sonny Sari-Sari Store at 4:00 p.m. on August 14, 1991? loved one usually strive to remember the faces of the assailants. [46] Marlons
credibility cannot be doubted in this case because as a victim himself and an
A No, sir.
eyewitness to the incident, it can be clearly gleaned from the foregoing
excerpts of his testimony that he remembered with a high degree of
reliability the identity of the malefactors.[47]
Likewise, there is no showing that he was motivated by any ill-feeling
or bad blood to falsely testify against accused-appellant. Being a victim
himself, he is expected to seek justice. It is settled that if the accused had
nothing to do with the crime, it would be against the natural order of events
to falsely impute charges of wrongdoing upon him.[48] Accused-appellant
likewise insists on the absence of conspiracy and treachery in the attack on
the victims.
We remain unconvinced.
It must be remembered that direct proof of conspiracy is rarely found for
criminals do not write down their lawless plans and plots. [49] Conspiracy may
be inferred from the acts of the accused before, during and after the
commission of the crime which indubitably point to and are indicative of a
joint purpose, concert of action and community of interest. [50] Indeed
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. To
establish the existence of a conspiracy, direct proof is not essential since
it may be shown by facts and circumstances from which may be
logically inferred the existence of a common design among the accused
to commit the offense charged, or it may be deduced from the mode and
manner in which the offense was perpetrated. [51]
More explicitly
conspiracy need not be established by direct evidence of acts charged, but
may and generally must be proved by a number of indefinite acts, conditions
and circumstances, which vary according to the purpose
accomplished. Previous agreement to commit a crime is not essential to
establish a conspiracy, it being sufficient that the condition attending to its
commission and the acts executed may be indicative of a common design to
accomplish a criminal purpose and objective. If there is a chain of
circumstances to that effect, conspiracy can be established. [52]
Thus, the rule is that conspiracy must be shown to exist by direct
or circumstantial evidence, as clearly and convincingly as the crime itself.
[53]
In the absence of direct proof thereof, as in the present case, it may be
deduced from the mode, method, and manner by which the offense was
perpetrated, or inferred from the acts of the accused themselves when such
acts point to a joint purpose and design, concerted action and community of
interest.[54] Hence, it is necessary that a conspirator should have performed
some overt acts as a direct or indirect contribution in the execution of the
crime planned to be committed. The overt act may consist of active
participation in the actual commission of the crime itself, or it may consist of
moral assistance to his con-conspirators by being present at the commission
of the crime or by exerting moral ascendancy over the other co-conspirators.
[55]
Conspiracy transcends mere companionship, it denotes an intentional
participation in the transaction with a view to the furtherance of the common
design and purpose.[56] Conspiracy to exist does not require an agreement for
an appreciable period prior to the occurrence. [57] From the legal standpoint,
conspiracy exists if, at the time of the commission of the offense, the accused
had the same purpose and were unitedin its execution.[58] In this case, the
presence of accused-appellant and his colleagues, all of them armed with
deadly weapons at the locus criminis, indubitably shows their criminal design
to kill the victims.
Nowhere is it more evident than in this case where accused-appellant
and his cohorts blocked the path of the victims and as a group attacked them
with lead pipes and bladed weapons. Accused-appellant and his companions
acted in concert during the assault on the victims. Each member of the group
performed specific and coordinated acts as to indicate beyond doubt a
common criminal design or purpose.[59]Thus, even assuming arguendo that
the prosecution eyewitness may have been unclear as to who delivered the
fatal blow on the victim, accused-appellant as a conspirator is equally liable
for the crime as it is unnecessary to determine who inflicted the fatal wound
because in conspiracy, the act of one is the act of all. [60]
As to the qualifying circumstances here present, the treacherous manner
in which accused-appellant and his group perpetrated the crime is shown not
only by the sudden and unexpected attack upon the unsuspecting and
apparently unarmed victims but also by the deliberate manner in which the
assault was perpetrated. In this case, the accused-appellant and his
companions, all of them armed with bladed weapons and lead pipes, blocked
(hinarang) the path of the victims effectively cutting off their escape. [61] In
the ensuing attack, the deceased was stabbed three (3) times from behind by
a sharp, pointed and single-bladed instrument like a kitchen
knife, balisong or similar instrument[62] while Marlon Araque sustained
lacerated wounds in the head caused by blows inflicted by lead pipes as well
as stab wounds on the shoulder and forearm which were caused by a sharp
object like a knife.[63]
 It must be noted in this regard that the manner in which the stab wounds
were inflicted on the deceased were clearly meant to kill without posing any
danger to the malefactors considering their locations and the fact that they
were caused by knife thrusts starting below going upward by assailants who
were standing behind the victim.[64] Treachery is present when the offender
commits any of the crimes against persons employing means, methods or
forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the
offended party might make.[65] That circumstance qualifies the crime into
murder.
The commission of the crime was also attended by abuse of superior
strength on account of the fact that accused-appellant and his companions
were not only numerically superior to the victims but also because all of
them, armed with bladed weapons and lead pipes, purposely used force out
of proportion to the means of defense available to the persons
attacked. However, this aggravating circumstance is already absorbed in
treachery.[66] Furthermore, although alleged in the information, evident
premeditation was not proved by the prosecution. In the light of the finding
of conspiracy, evident premeditation need not be further appreciated, absent
concrete proof as to how and when the plan to kill was hatched or what time
had elapsed before it was carried out.[67]
In stark contrast to the evidence pointing to him as one of the assailants
of the victims, accused-appellant proffers the defense of alibi. At the risk of
sounding trite, it must be remembered that alibi is generally considered with
suspicion and always received with caution because it can be easily
fabricated.[68] For alibi to serve as a basis for acquittal, the accused must
establish that: a.] he was present at another place at the time of the
perpetration of the offense; and b.] it would thus be physically impossible for
him to have been at the scene of the crime. [69]
Suffice it to state that accused-appellant failed to discharge this
burden. The positive identification of the accused as one of the perpetrators
of the crime by the prosecution eyewitness, absent any showing of ill-motive,
must prevail over the weak and obviously fabricated alibi of accused-
appellant.[70] Furthermore, as aptly pointed out by the trial court [t]he place
where the accused was at the time of the killing is only 100 meters away. The
distance of his house to the place of the incident makes him physically
possible to be a participant in the killing [of Jeonito] and [the] wounding of
Marlon.[71]
All told, an overall scrutiny of the records of this case leads us to no
other conclusion than that accused-appellant is guilty as charged for Murder
in Criminal Case No. 91-5842.
In Criminal Case No. 91-5843, wherein accused-appellant was indicted
for Frustrated Homicide, the trial court convicted accused-appellant of
Attempted Homicide only on the basis of Dr. Manimtims testimony that none
of the wounds sustained by Marlon Araque were fatal.
The reasoning of the lower court on this point is flawed because it is not
the gravity of the wounds inflicted which determines whether a felony is
attempted or frustrated but whether or not the subjective phase in the
commission of an offense has been passed. By subjective phase is meant
[t]hat portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by the
offender which, with the prior acts, should result in the consummated
crime. From that time forward, the phase is objective. It may also be said to
be that period occupied by the acts of the offender over which he has control
that period between the point where he begins and the point where
he voluntarily desists. If between these two points the offender is stopped by
reason of any cause outside of his own voluntary desistance, the subjective
phase has not been passed and it is an attempt. If he is not so stopped but
continues until he performs the last act, it is frustrated. [72]
It must be remembered that a felony is frustrated when: 1.] the offender
has performed all the acts of execution which would produce the felony; 2.]
the felony is not produced due to causes independent of the perpetrators will.
[73]
On the other hand, in an attempted felony: 1.] the offender commits overt
acts to commence the perpetration of the crime; 2.] he is not able to perform
all the acts of execution which should produce the felony; and 3.] his failure
to perform all the acts of execution was due to some cause or accident other
than his spontaneous desistance.[74] The distinction between an attempted and
frustrated felony was lucidly differentiated thus in the leading case of U.S. v.
Eduave:[75]
A crime cannot be held to be attempted unless the offender,
after beginning the commission of the crime by overt acts, is prevented,
against his will, by some outside cause from performing all of the acts which
should produce the crime. In other words, to be an attempted crime the
purpose of the offender must be thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the moment when he has
performed all of the acts which should produce the crime as a consequence,
which acts it is his intention to perform. If he has performed all the acts
which should result in the consummation of the crime and voluntarily desists
from proceeding further, it cannot be an attempt. The essential element which
distinguishes attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between the
beginning of the commission of crime and the moment when all the acts have
been performed which should result in the consummated crime; while in the
former there is such intervention and the offender does not arrive at the point
of performing all of the acts which should produce the crime. He is stopped
short of that point by some cause apart from his voluntary desistance.
To put it another way, in case of an attempt the offender never passes the
subjective phase of the offense. He is interrupted and compelled to desist by
the intervention of outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes, the subjective phase is
completely passed. Subjectively the crime is complete. Nothing interrupted
the offender while he was passing through the subjective phase.The crime,
however, is not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was necessary to
commit the crime. If the crime did not result as a consequence it was due to
something beyond his control.
In relation to the foregoing, it bears stressing that intent to kill
determines whether the infliction of injuries should be punished as attempted
or frustrated murder, homicide, parricide or consummated physical injuries.
[76]
Homicidal intent must be evidenced by acts which at the time of their
execution are unmistakably calculated to produce the death of the victim by
adequate means.[77] Suffice it to state that the intent to kill of the malefactors
herein who were armed with bladed weapons and lead pipes can hardly be
doubted given the prevailing facts of the case. It also can not be denied that
the crime is a frustrated felony not an attempted offense considering that
after being stabbed and clubbed twice in the head as a result of which he lost
consciousness and fell, Marlons attackers apparently thought he was already
dead and fled.
An appeal in a criminal case throws the whole case wide open for
review[78] and the reviewing tribunal can correct errors, though unassigned in
the appealed judgement[79] or even reverse the trial courts decision on the
basis of grounds other than those that the parties raised as errors. [80] With the
foregoing in mind, we now address the question of the proper penalties to be
imposed.
With regard to the frustrated felony, Article 250 of the Revised Penal
Code provides that
ART. 250. Penalty for frustrated parricide, murder, or homicide. The courts,
in view of the facts of the case, may impose upon the person guilty of the
frustrated crime of parricide, murder or homicide, defined and penalized in
the preceding articles, a penalty lower by one degree than that which should
be imposed under the provisions of article 50.[81]
The courts, considering the facts of the case, may likewise reduce by one
degree the penalty which under article 51 should be imposed for an attempt
to commit any of such crimes.
The penalty for Homicide is reclusion temporal[82] thus, the penalty one
degree lower would be prision mayor.[83] With the presence of the
aggravating circumstance of abuse of superior strength and no mitigating
circumstances, the penalty is to be imposed in its maximum period.
[84]
Prision mayor in its maximum period ranges from ten (10) years and one
(1) day to twelve (12) years. Applying further the Indeterminate Sentence
Law,[85] the minimum of the imposable penalty shall be within the range of
the penalty next lower in degree, i.e. prision correccional in its maximum
period which has a range of six (6) months and one (1) day to six (6) years.
What now remains to be determined is the propriety of the awards made
by the trial court with regard to the civil aspect of the case for the death of
Jeonito Araque and the injuries sustained by Marlon Araque.
Anent actual or compensatory damages, it bears stressing that only
substantiated and proven expenses or those which appear to have been
genuinely incurred in connection with the death, wake or burial of the victim
will be recognized by the courts.[86] In this case, the expenses incurred for the
wake, funeral and burial of the deceased are substantiated by receipts. [87] The
trial courts award for actual damages for the death of Jeonito Araque should
therefore be affirmed.
In line with current jurisprudence,[88] the award of P50,000.00 as civil
indemnity ex delicto must also be sustained as it requires no proof other than
the fact of death of the victim and the assailants responsibility therefor.
[89]
The award for moral damages for the pain and sorrow suffered by the
victims family in connection with his untimely death must likewise be
affirmed. The award is adequate, reasonable and with sufficient basis taking
into consideration the anguish and suffering of the deceaseds family
particularly his mother who relied solely upon him for support. [90] The award
of exemplary damages should likewise be affirmed considering that an After finality of this Decision, the records shall be remanded to the
aggravating circumstance attended the commission of the crime. [91] Regional Trial Court of Makati City, which is directed to render judgment
based on the evidence against Samson dela Torre y Esquela.
The trial court, however, correctly ignored the claim for loss of income
or earning capacity of the deceased for lack of factual basis. The estimate SO ORDERED.
given by the deceaseds sister on his alleged income as a pre-cast
businessman is not supported by competent evidence like income tax returns Davide, Jr., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
or receipts. It bears emphasizing in this regard that compensation for lost
income is in the nature of damages[92] and as such requires due proof thereof.
[93]
In short, there must be unbiased proof of the deceaseds average income.
[94]
In this case, the victims sister merely gave an oral, self-serving and hence
unreliable statement of her deceased brothers income.
As for the awards given to Marlon Araque, the award for actual
damages must be affirmed as the same is supported by documentary
evidence.[95] With regard to moral and exemplary damages, the same being
distinct from each other require separate determination. [96] The award for
moral damages must be struck down as the victim himself did not testify as
to the moral suffering he sustained as a result of the assault on his
person. For lack of competent proof such an award is improper.[97] The award
for exemplary damages must, however, be retained considering that under
Article 2230 of the Civil Code, such damages may be imposed when the
crime is committed with one or more aggravating circumstances. [98]
Finally, this Court has observed that the trial court did not render
judgment against accused Samson dela Torre, notwithstanding that he was
arraigned and pleaded not guilty to both charges. Under the circumstances,
he should be deemed to have been tried in absentia and, considering the
evidence presented by the prosecution against him, convicted of the crime
charged together with appellant Agapito Listerio.
WHEREFORE, the appealed decision is AFFIRMED with the
following MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way of moral
damages in Criminal Case No. 91-5843 is DELETED;
2.] Accused-Appellant is found GUILTY beyond reasonable doubt Republic of the Philippines
in Criminal Case No. 91-5843 of Frustrated Homicide and is SUPREME COURT
sentenced to suffer an indeterminate penalty of Six (6) Years Manila
of Prision Correccional, as minimum to Ten (10) Years and One
(1) Day of Prision Mayor, as maximum. EN BANC

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

 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, living in the house of the parents of the child as their guest, the aggravating
vs. circumstance of abuse of confidence existed and the penalty must therefore
JULIAN ERINIA Y VINOLLA, defendant-appellant. be imposed in its maximum degree.

Hermogenes Caluag for appellant. The judgment appealed from is modified and the defendant-appellant is
Attorney-General Jaranilla for appellee. hereby found guilty of the crime of frustrated rape and is sentenced to suffer
twelve years of prision mayor, with the accessory penalties prescribed by
OSTRAND, J.: law, and with the costs in both instances. So ordered.

This is an appeal from a judgment of the Court of First Instance of Manila Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.
finding the defendant guilty of the crime of consummated rape and
sentencing him to suffer seventeen years, four months and one day
of reclusion temporal, with the accessory penalties provided by law and to
pay the costs.

The victim of the crime was a child of 3 years and 11 months old and the
evidence is conclusive that the defendant endeavored to have carnal
intercourse with her, but there may be some doubt whether he succeeded in
penetrating the vagina before being disturbed by the timely intervention of
the mother and the sister of the child. The physician who examined the
genital organ of the child a few hours after the commission of the crime
found a slight inflammation of the exterior parts of the organ, indicating that
an effort had been made to enter the vagina, but in testifying before the court
he expressed doubts as to whether the entry had been effected. The mother of
the child testified that she found its genital organ covered with a sticky
substance, but that cannot be considered conclusive evidence of penetration.

It has been suggested that the child was of such tender age that penetration
was impossible; that the crime of rape consequently was impossible of
consummation; and that, therefore, the offense committed should be treated
only as abusos deshonestos. We do not think so. It is probably true that a
complete penetration was impossible, but such penetration is not essential to
the commission of the crime; it is sufficient if there is a penetration of the
labia. In the case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L.
R. A., 316) where the offended party was a child of the age of 3 years and 8 Republic of the Philippines
months the testimony of several physicians was to the effect that her labia of SUPREME COURT
the privates of a child of that age can be entered by a man's male organ to the Manila
hymen and the defendant was found guilty of the consummated crime rape.
FIRST DIVISION
There being no conclusive evidence of penetration of the genital organ of the
offended party, the defendant is entitled to the benefit of the doubt and can G.R. No. 88724 April 3, 1990
only be found guilty of frustrated rape, but in view of the fact that he was
 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in
Criminal Case No. 83-031-B before the Regional Trial Court, Branch II,
Borongan, Eastern Samar. The information filed in the said case reads as
follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior
complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside
a boarding house at Victoria St., Poblacion, Borongan, Eastern
Samar, Philippines, and within the jurisdiction of this Honorable
Court, above named accused with lewd designs and by the use of a
Batangas knife he conveniently provided himself for the purpose and
with threats and intimidation, did, then and there wilfully, unlawfully
and feloniously lay with and succeeded in having sexual intercourse
with Cristina S. Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the
offense charged. After the witnesses for the People testified and the exhibits
were formally offered and admitted, the prosecution rested its case.
Thereafter, the defense opted not to present any exculpatory evidence and
instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered
its decision, the dispositive portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of
accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape
(Art. 335, RPC), beyond reasonable doubt, with the aggravating
circumstances of dwelling and nightime (sic) with no mitigating
circumstance to offset the same, and considering the provisions of
the Indeterminate Sentence Law, imposes on accused an
imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION
MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR,
maximum; to indemnify CRISTINA S. ABAYAN, the amount of
Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment
in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals.
On December 29, 1988, the Court of Appeals rendered its decision, the
dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and
the appellant found guilty of the crime of rape, and consequently,
sentenced to suffer imprisonment of reclusion perpetua and to
indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside
its December 29, 1988 decision and forwarded the case to this Court,
considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg.
129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp.
71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student
at the St. Joseph's College at Borongan, Eastern Samar. Appellant
was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her
boarding house. Her classmates had just brought her home from a
party (p. 44, tsn, May 23, 1984). Shortly after her classmates had
left, she knocked at the door of her boarding house (p. 5, ibid). All of
a sudden, somebody held her and poked a knife to her neck. She then
recognized appellant who was a frequent visitor of another boarder
(pp. 8-9,ibid).
She pleaded with him to release her, but he ordered her to go upstairs
with him. Since the door which led to the first floor was locked from
the inside, appellant forced complainant to use the back door leading
to the second floor (p. 77, ibid). With his left arm wrapped around
her neck and his right hand poking a "balisong" to her neck,
appellant dragged complainant up the stairs (p. 14, ibid). When they
reached the second floor, he commanded her to look for a room.
With the Batangas knife still poked to her neck, they entered
complainant's room.
Upon entering the room, appellant pushed complainant who hit her
head on the wall. With one hand holding the knife, appellant
undressed himself. He then ordered complainant to take off her
clothes. Scared, she took off her T-shirt. Then he pulled off her bra,
pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He
made her hold his penis and insert it in her vagina. She followed his
order as he continued to poke the knife to her. At said position,
however, appellant could not fully penetrate her. Only a portion of
his penis entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount
him. In this position, only a small part again of his penis was inserted
into her vagina. At this stage, appellant had both his hands flat on the
floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant
pursued her and climbed the partition. When she saw him inside the
room, she ran to another room. Appellant again chased her. She fled
to another room and jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about
eighteen meters in front of the boarding house, and knocked on the
door. When there was no answer, she ran around the building and
knocked on the back door. When the policemen who were inside the
building opened the door, they found complainant naked sitting on
the stairs crying. Pat. Donceras, the first policeman to see her, took
off his jacket and wrapped it around her. When they discovered what
happened, Pat. Donceras and two other policemen rushed to the
boarding house. They heard a sound at the second floor and saw
somebody running away. Due to darkness, they failed to apprehend
appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar
Provincial Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A") which states:
Physical Examination Patient is fairly built, came in with
loose clothing with no under-clothes; appears in state of
shock, per unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with prominent
nipples; linear abrasions below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal area
or over the vulva, errythematous (sic)areas noted
surrounding vaginal orifice, tender, hymen intact; no
laceration fresh and old noted; examining finger can barely
enter and with difficulty; vaginal canal tight; no discharges
noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the
testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was
committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because
they "show remarkable and vital inconsistencies and its incredibility
amounting to fabrication and therefore casted doubt to its candor, truth and
validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to
trivial inconsistencies which are not sufficient to blur or cast doubt on the
witnesses' straightforward attestations. Far from being badges of fabrication,
the inconsistencies in their testimonies may in fact be justifiably considered
as manifestations of truthfulness on material points. These little deviations
also confirm that the witnesses had not been rehearsed. The most candid
witnesses may make mistakes sometimes but such honest lapses do not
necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-
37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies
of the prosecution witnesses, discrepancies on minor details must be viewed
as adding credence and veracity to such spontaneous testimonies (Aportadera
et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158
SCRA 695). As a matter of fact, complete uniformity in details would be a
strong indication of untruthfulness and lack of spontaneity (People v. Bazar,
G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the
alleged inconsistencies deserves a little discussion which is, the testimony of
the victim that the accused asked her to hold and guide his penis in order to
have carnal knowledge of her. According to the accused, this is strange
because "this is the only case where an aggressor's advances is being helped-
out by the victim in order that there will be a consumation of the act." (p.
34, Rollo). The allegation would have been meritorious had the testimony of
the victim ended there. The victim testified further that the accused was
holding a Batangas knife during the aggression. This is a material part of the
victim's testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the
findings of fact of the trial court on the credibility of witnesses should be
accorded the highest respect because it has the advantage of observing the
demeanor of witnesses and can discern if a witness is telling the truth (People
v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial
court's finding regarding the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is
not much to be desired as to the sincerity of the offended party in her
testimony before the court. Her answer to every question profounded
(sic), under all circumstances, are plain and straightforward. To the
Court she was a picture of supplication hungry and thirsty for the
immediate vindication of the affront to her honor. It is inculcated into
the mind of the Court that the accused had wronged her; had
traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is
necessary to show that rape was committed provided her testimony is clear
and free from contradiction and her sincerity and candor, free from suspicion
(People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People
v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v.
Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in
this case did not only state that she was raped but she testified convincingly
on how the rape was committed. The victim's testimony from the time she
knocked on the door of the municipal building up to the time she was
brought to the hospital was corroborated by Pat. Donceras. Interpreting the
findings as indicated in the medical certificate, Dr. Reinerio Zamora (who
was presented in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below the left breast,
multiple pinpoint marks, circumscribed hematoma at the anterior neck,
erythematous area surrounding the vaginal orifice and tender vulva, are
conclusive proof of struggle against force and violence exerted on the victim
(pp. 52-53,Rollo). The trial court even inspected the boarding house and was
fully satisfied that the narration of the scene of the incident and the
conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe
enough to carry the weight of both accused and offended party
without the slightest difficulty, even in the manner as narrated. The
partitions of every room were of strong materials, securedly nailed,
and would not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape
complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983,
126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony
(opening) to the ground which was correctly estimated to be less than
eight (8) meters, will perhaps occasion no injury to a frightened
individual being pursued. Common experience will tell us that in
occasion of conflagration especially occuring (sic) in high buildings,
 many have been saved by jumping from some considerable heights
without being injured. How much more for a frightened barrio girl,
like the offended party to whom honor appears to be more valuable
than her life or limbs? Besides, the exposure of her private parts
when she sought assistance from authorities, as corroborated, is
enough indication that something not ordinary happened to her
unless she is mentally deranged. Sadly, nothing was adduced to show
that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982,
117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her
having been rendered entirely naked by appellant and that even in
her nudity, she had to run away from the latter and managed to gain
sanctuary in a house owned by spouses hardly known to her. All
these acts she would not have done nor would these facts have
occurred unless she was sexually assaulted in the manner she
narrated.
The accused questions also the failure of the prosecution to present other
witnesses to corroborate the allegations in the complaint and the non-
presentation of the medico-legal officer who actually examined the victim.
Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their necessity
(Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People
v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of
the medico-legal officer who actually examined the victim, the trial court
stated that it was by agreement of the parties that another physician testified
inasmuch as the medico-legal officer was no longer available. The accused
did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first
assignment of error fall flat on its face. Some were not even substantiated
and do not, therefore, merit consideration. We are convinced that the accused
is guilty of rape. However, We believe the subject matter that really calls for
discussion, is whether or not the accused's conviction for frustrated rape is
proper. The trial court was of the belief that there is no conclusive evidence
of penetration of the genital organ of the victim and thus convicted the
accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor
General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the elements
of the crime of rape:
Art. 335. When and how rape is committed. Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious
and
3. When the woman is under twelve years of age, even though
neither of the circumstances mentioned in the two next preceding
paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having sexual bodily
connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated when
the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce
it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of
a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and
consummated stages apply to the crime of rape.1wphi1 Our concern now is
whether or not the frustrated stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed
all the acts of execution which would produce the felony and (2) that the
felony is not produced due to causes independent of the perpetrator's will. In
the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated felonies which is
readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender, after
beginning the commission of the crime by overt acts, is prevented,
against his will, by some outside cause from performing all of the
acts which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be thwarted by a
foreign force or agency which intervenes and compels him to stop
prior to the moment when he has performed all of the acts which
should produce the crime as a consequence, which acts it is his
intention to perform. If he has performed all of the acts which should
result in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential element
which distinguishes attempted from frustrated felony is that, in the
latter, there is no intervention of a foreign or extraneous cause or
agency between the beginning of the commission of the crime and
the moment when all of the acts have been performed which should
result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his voluntary
desistance.
Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender, because he
has performed the last act necessary to produce the crime. Thus, the felony is
consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v.
Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29,
1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974,
58 SCRA 505), We have set the uniform rule that for the consummation of
rape, perfect penetration is not essential. Any penetration of the female organ
by the male organ is sufficient. Entry of the labia or lips of the female organ,
without rupture of the hymen or laceration of the vagina is sufficient to
warrant conviction. Necessarily, rape is attempted if there is no penetration
of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al.,
53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of
execution was performed. The offender merely commenced the commission
of a felony directly by overt acts. Taking into account the nature, elements
and manner of execution of the crime of rape and jurisprudence on the
matter, it is hardly conceivable how the frustrated stage in rape can ever be
committed.
Of course, We are aware of our earlier pronouncement in the case of People
v. Eria 50 Phil. 998 [1927] where We found the offender guilty of frustrated
rape there being no conclusive evidence of penetration of the genital organ of
the offended party. However, it appears that this is a "stray" decision
inasmuch as it has not been reiterated in Our subsequent decisions. Likewise,
We are aware of Article 335 of the Revised Penal Code, as amended by
Republic Act No. 2632 (dated September 12, 1960) and Republic Act No.
4111 (dated March 29, 1965) which provides, in its penultimate paragraph,
for the penalty of death when the rape is attempted orfrustrated and a
homicide is committed by reason or on the occasion thereof. We are of the
opinion that this particular provision on frustrated rape is a dead provision.
The Eria case, supra, might have prompted the law-making body to include
the crime of frustrated rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the
genital organ of the victim, the trial court relied on the testimony of Dr.
Zamora when he "categorically declared that the findings in the vulva does
not give a concrete disclosure of penetration. As a matter of fact, he tossed
back to the offended party the answer as to whether or not there actually was
penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate
(Exhibit "A") as interpreted by Dr. Reinerio Zamora and the
equivocal declaration of the latter of uncertainty whether there was
penetration or not. It is true, and the Court is not oblivious, that
conviction for rape could proceed from the uncorroborated testimony
of the offended party and that a medical certificate is not necessary
(People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the
citations the people relied upon cannot be applicable to the instant
case. The testimony of the offended party is at variance with the
medical certificate. As such, a very disturbing doubt has surfaced in
 the mind of the court. It should be stressed that in cases of rape
where there is a positive testimony and a medical certificate, both
should in all respect, compliment each other, for otherwise to rely on
the testimony alone in utter disregard of the manifest variance in the
medical certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical
certificate does not exist. On the contrary, it is stated in the medical
certificate that the vulva was erythematous (which means marked by
abnormal redness of the skin due to capillary congestion, as in inflammation)
and tender. It bears emphasis that Dr. Zamora did not rule out penetration of
the genital organ of the victim. He merely testified that there was uncertainty
whether or not there was penetration. Anent this testimony, the victim
positively testified that there was penetration, even if only partially (pp. 302,
304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply, or what act do you
referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even
on the sole basis of the victim's testimony if credible (People v. Tabago, G.R.
No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No.
L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos.
L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's
testimony is merely corroborative and is not an indispensable element in the
prosecution of this case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the
scale in favor of the accused because after a thorough review of the records,
We find the evidence sufficient to prove his guilt beyond reasonable doubt of
the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever
the crime of rape is committed with the use of a deadly weapon, the penalty
shall be reclusion perpetua to death. The trial court appreciated the
aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of
the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos.
L-38968-70, February 9, 1989, that the cited Constitutional provision did not
declare the abolition of the death penalty but merely prohibits the imposition
of the death penalty, the Court has since February 2, 1987 not imposed the
death penalty whenever it was called for under the Revised Penal Code but
instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R.
Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single
indivisible penalty under Article 335, paragraph 3, is imposed regardless of
any mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713,
March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449,
November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744,
May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby
MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
reasonable doubt of the crime of rape and sentenced to reclusion perpetua as
well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.
EN BANC
[G. R. No. 149028-30. April 2, 2003]
THE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO
CABALLERO, RICARDO CABALLERO, MARCIANO
CABALLERO, JR., and ROBITO CABALLERO, accused.
 ARMANDO CABALLERO, RICARDO CABALLERO, and
MARCIANO CABALLERO, JR., appellants.
DECISION
CALLEJO, SR., J.:
Before the Court on automatic review is the Decision [1] of the Regional
Trial Court of San Carlos City, Negros Occidental, Branch 57, convicting
appellants Armando Caballero, Ricardo Caballero and Marciano Caballero,
Jr. of murder in Criminal Cases Nos. RTC-1217 and RTC-1218 and meting
on each of them the supreme penalty of death and ordering them to pay
damages; and of frustrated murder in Criminal Case No. RTC-1219 and
imposing on them the penalty of reclusion perpetua.
The Antecedents
Teresito (Dodong) Mondragon and his family lived in a compound
surrounded by a barbed-wire fence at New Sumakwel, Broce Street, San
Carlos City, Negros Occidental. Living in the same compound were Ricardo
Caballero and his family; and Myrna Bawin, the sister of Eugene Tayactac,
and her family. Beside the compound was the house of Leonilo Broce, a
nephew of Wilma Broce.
In the afternoon of August 3, 1994, Armando (Baby), Robito (Bebot)
and Marciano, Jr. (Jun), all surnamed Caballero, were having a drinking
spree in the house of their brother Ricardo in the Mondragon Compound. At
about 7:00 p.m. of said date, Eugene Tayactac and Arnold Barcuma arrived
in the sari-sari store of Wilma Broce which was across the Mondragon
Compound. Eugene had dinner in the store while Arnold proceeded to the
house of Susana Broce, Eugenes girlfriend, for a chat. Susanas house was
about 15 meters away from the store of Wilma. Momentarily, Armando
arrived in the store and asked Eugene in an angry tone: Gene mopalit ka?
(Gene, will you buy?). Eugene replied: What is this all about? We dont have
any quarrel between us. Armando left the store but stood by the gate of the
barbed-wired fence of the Mondragon Compound. His brothers Ricardo,
Robito and Marciano, Jr. joined him. Ricardo and Robito were armed with
knives. When Wilma told Eugene that she was closing the store already, he
stood up and left the store on his way to Susanas house. At that time, Myrna
Bawin, who was standing by the window of their house saw her brother
Eugene going out of the store and proceeding to the house of Susana. She
called out to him and advised him to go home. Myrna then left the window to
pacify her crying baby.
As Eugene walked by the gate of the Mondragon Compound, Armando
suddenly grabbed Eugene towards the compound. Eugene
resisted. Spontaneously, Ricardo, Marciano, Jr. and Robito joined Armando
and assaulted Eugene. Armando took the wooden pole supporting the
clothesline and hit Eugene with it. The latter tried to parry the blows of the
Caballero brothers, to no avail. In the process, Eugene was stabbed three
times. As Eugene was being assaulted, Myrna returned to the window of her
house and saw the Caballero brothers assaulting Eugene. She shouted for
help for her hapless brother. Wilma, who witnessed the whole incident, was
shocked to immobility at the sudden turn of events.
From the nearby house of Susana, Arnold saw the commotion and
rushed to the scene to pacify the protagonists. Arnold told the Caballero
brothers: Bay, what is the trouble between you and Eugene?However,
Ricardo accosted Arnold and stabbed the latter on the left side of his
body. Forthwith, Robito, Marciano, Jr. and Armando ganged up on Arnold.
Two of them stabbed Arnold on his forearm. Arnold fled for his life and hid
under the house of a neighbor.
For his part, Leonilo rushed from his house to where the commotion
was. He was, however, met by Robito who stabbed him on the chest.
Wounded, Leonilo retreated and pleaded to his uncle Lucio Broce for
help: Tio, help me because I am hit. The commotion stopped only upon the
arrival of Teresito Mondragon who was able to pacify the Caballero
brothers. They all returned to the compound.
In the meantime, Lucio Broce, the uncle of Leonilo brought the injured
Eugene, Leonilo and Arnold to the Planters Hospital for medical
treatment. Eugene and Leonilo eventually died from the stab wounds they
sustained.
Dr. Filped A. Maisog performed an autopsy on the cadaver of
Eugene. He signed a postmortem report containing the following findings:
POST-MORTEM EXAMINATION
Name: Eugenio Tayactac, 22 years old, male, single
Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: August 3, 1994 @ 8:30 P.M.
Date & Time Examined: August 3, 1994 @ 10:40 P.M.
Post-Mortem Findings:
= Stab wound (L) anterior chest 2 cm. 5 th ICS MCL directed
postero laterally, lacerating (L) auricle of the heart, and the
(L) pulmonary artery and the left middle lobe of the lungs;
= Stab wound (R) anterior chest 2 cm. long 5 th ICS parasternal line
directed posteriorly;
= Stab wound (R) posterior chest level 7 th ICS 2 cm. long directed
anteriorly.
CAUSE OF DEATH: Severe Hemorrhage secondary to Multiple
Stab wounds with Massive Hemothorax (L) and
Hemopneumothorax (R).[2]
He testified that the stab wounds could have been caused by a sharp-
edged single-bladed or double-bladed instrument, or by three instruments. [3]
Dr. Jose Carlos L. Villarante performed an autopsy on the cadaver of
Leonilo. He signed a postmortem report containing the following findings:
POST-MORTEM EXAMINATION
Name: Leonilo Broce, 22 years old, male, married
Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: Aug. 3, 1994 @ 8:30 P.M.
Date & Time Examined: Aug. 3, 1994 @ 8:45 P.M.
Post-mortem findings:
= Stab wound, (R) post chest, about the level of the 6 th and
7th RICS, post. axillary line.
CAUSE OF DEATH: Hypovolemic shock secondary to multiple
organ injury.[4]
Dr. Edgardo B. Quisumbing attended to and operated on Arnold
Barcuma. He signed a medical certificate stating that Arnold sustained the
following injuries:
= Lacerated wound 2 cm. (R) forearm middle 3rd
= Incised wound 2 inches (L) forearm middle 3rd
= Stabbed wound, 2 inches in length (L) chest, anterior axillary line
at the level of the 7th intercostal space, penetrating thoracic
cavity and abdominal cavity.
... [5]
On the witness stand, Dr. Quisumbing testified that the wounds
sustained by Arnold could have been caused by three different sharp-pointed
instruments.[6] He further testified that Arnold would have died because of the
stab wound on his chest, were it not for the timely medical intervention.
On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito, were
charged with Murder for the death of Leonilo Broce. The Information,
docketed as Criminal Case No. RTC 1217 reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San
Carlos City, Negros Occidental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and
helping one another, armed with pieces of wood and hunting knives, and with
intent to kill, with treachery and evident premeditation, did, then and there,
wilfully, unlawfully and feloniously, with the use of said weapons, attack,
assault and use personal violence upon the person of one LEONILO
BROCE, by striking the latter with the use of pieces of wood and stabbing
him, thereby inflicting upon said Leonilo Broce physical injury described as
follows:
= Stabbed wound (R) chest penetrating thoracic cavity.
and which injury caused massive hemorrhage which resulted to the death of
Leonilo Broce.
That an aggravating circumstance of abuse of superior strength is attendant in
the commission of the offense.
CONTRARY TO LAW. [7]
They were also charged with the same crime for the death of Eugene
Tayactac in an Information docketed as Criminal Case No. RTC-1218, which
reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San
Carlos City, Negros Occidental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and
helping one another, armed with pieces of wood and hunting knives, and with
intent to kill, with treachery and evident premeditation, did, then and there,
wilfully, unlawfully and feloniously, with the use of said weapons, attack,
assault and use personal violence upon the person of one EUGENE
TAYACTAC, by striking the latter with use of pieces of wood and stabbing
him thereby inflicting upon said Eugene Tayactac physical injuries which
resulted to the death of the latter.
That an aggravating circumstances of abuse of superior strength is attendant
in the commission of the offense.
CONTRARY TO LAW.[8]
Another Information was filed against the Caballero brothers for
frustrated murder for the injuries of Arnold Barcuma. Docketed as Criminal
Case No. RTC-1219, it reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San
Carlos City, Negros Occidental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and
helping one another, armed with pieces of wood and hunting knives, with
intent to kill, with treachery and evident premeditation, did, then and there,
wilfully, unlawfully and feloniously attack, assault and use personal violence
upon the person of one ARNOLD BARCUMA, by striking him with the use
of pieces of wood and stabbing him, thereby inflicting upon the latter
physical injuries which would have resulted to the death of said Arnold
Barcuma, thus performing all the acts of execution, which would have
produced the crime of Murder, as a consequence, but nevertheless did not
produce it, by reason of causes independent of the will of the accused that is,
the timely medical assistance rendered to said Arnold Barcuma.
That an aggravating circumstance of abuse of superior strength is attendant in
the commission of the offense.[9]
Ricardo, Armando and Marciano, Jr., assisted by counsel, were
arraigned on September 15, 1994. They pleaded not guilty to all the
charges. Robito Caballero remained at-large.
Ricardo, Armando and Marciano, Jr. invoked the defenses of denial and
alibi. They adduced evidence that Ricardo was employed as electrician in the
Office of the City Engineer of San Carlos City. Armando was a motor cab
driver. Robito resided in H.C. Rigor Street, San Carlos City while Marciano,
Jr. was a resident of Don Juan Subdivision, San Carlos City and was
employed with the Victorias Milling Corporation.
On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and went to
Bacolod City. Armando went to the house of his brother Ricardo to help in
the construction of the latters house and to take care of Ricardos fighting
cocks while he was in his office. Ricardo arrived home at 8:00 p.m. and had
dinner with his family and Armando. Momentarily, their sister Mila and their
younger brother Marciano, Jr. arrived in the house of Ricardo. Marciano, Jr.
allegedly was mauled by a group of men and sustained an abrasion, a
contusion and swelling of the left side of his face. Ricardo and Armando
brought their brother Marciano, Jr. to the hospital for treatment. On August 4,
1994, Marciano, Jr. was treated for:
= Linear abrasion (L) scapula region;
= Contusion (R) lower lip lateral side;
= Swelling left face.
No. of days of healing: 5-7 days barring complication.[10]
Ricardo, Armando and Marciano, Jr. denied killing Eugene and
assaulting Arnold. They also denied having any altercation with the victims.
They also denied stabbing Leonilo. They had no idea why Wilma, Arnold and
Myrna would implicate them for the deaths of Leonilo and Eugene and for
the injuries of Arnold.
After due proceedings, the trial court rendered judgment on May 7,
2001 finding all the three accused, now appellants guilty beyond reasonable
doubt as principals of the crimes charged, the decretal portion of which
reads:
WHEREFORE, accused Armando Caballero, alias Baby, Ricardo Caballero,
alias Ricky and Marciano Caballero, Jr., alias Jun, having been
found GUILTY beyond reasonable doubt of the offenses charged them as
principals, are hereby sentenced to suffer:
1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce, there
being no mitigating circumstance present, with the attendant aggravating
circumstances of treachery and abuse of superior strength, the maximum
penalty of death and to pay the heirs of Leonilo Broce the sum of P75,000.00
as indemnity;
2. In Criminal Case No. RTC-1218, for the murder of Eugene or Eugenio
Tayactac, there being no mitigating circumstance present, with the attendant
aggravating circumstances of treachery and abuse of superior strength, the
maximum penalty of death; and to pay the heirs of Eugene Tayactac the sum
of P75,000.00 as indemnity; and
3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having
seriously inflicted injuries upon the person of Arnold Barcuma which nearly
resulted to his death, there being no mitigating circumstance present, an
imprisonment of twelve (12) years, as minimum, to seventeen (17) years,
four (4) months and one (1) day, with no award as to damages, no evidence
having been introduced to establish, the same; and
4. To pay the costs in all three (3) cases.
SO ORDERED.[11]
In convicting the accused, the trial court found that all of them
conspired to kill Eugene and Leonilo and cause injuries to Arnold. While the
trial court stated that it was only appellant Armando who stabbed Eugene,
and only the accused Robito who stabbed Leonilo, however, it concluded that
all of them were equally liable for the deaths of Leonilo and Eugene and for
the injuries of Arnold.
In their Brief, the accused, now appellants assail the decision of the trial
court contending that:
I
THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-
APPELLANTS IN CRIMINAL CASES NOS. 1217-1219 DESPITE THE
FACT THAT THEIR GUILT WAS NOT PROVEN BEYOND
REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE
AGGRAVATING CIRCUMSTANCES OF TREACHERY AND ABUSE OF
SUPERIOR STRENGTH ON THE ASSUMPTION THAT INDEED
ACCUSED-APPELLANTS KILLED THE VICTIMS.
III
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH
PENALTY UPON ACCUSED-APPELLANTS ON THE ASSUMPTION
THAT INDEED THEY KILLED THE VICTIMS.[12]
The Court will delve into and resolve the first two assignments of errors.
The appellants aver that the prosecution failed to prove beyond
reasonable doubt their respective guilt for the deaths of Eugene and Leonilo
and for the injuries sustained by Arnold. They assert that the trial court
committed reversible error in rejecting their defenses of denial and
alibi. They claim that at the time of the incident they were in the San Carlos
Hospital for the treatment of the injuries of appellant Marciano, Jr.
 The appellants are partly correct.
The trial court correctly found that all the appellants conspired to kill
Eugene and assault Arnold; hence, they are criminally liable for the death of
Eugene and for the injuries sustained by Arnold. Article 8 of the Revised
Penal Code provides that there is conspiracy when two or more persons agree
to commit a felony and decide to commit it. Conspiracy is always
predominantly mental in composition because it consists primarily of a
meeting of minds and intent. [13] Conspiracy must be proved with the same
quantum of evidence as the crime itself, that is, by proof beyond reasonable
doubt.[14] However, direct proof is not required. Conspiracy may be proved by
circumstantial evidence. Conspiracy may be proved through the collective
acts of the accused, before, during and after the commission of a felony, all
the accused aiming at the same object, one performing one part and another
performing another for the attainment of the same objective, their acts though
apparently independent were in fact concerted and cooperative, indicating
closeness of personal association, concerted action and concurrence of
sentiments.[15] The overt act or acts of the accused may consist of active
participation in the actual commission of the crime itself or may consist of
moral assistance to his co-conspirators by moving them to execute or
implement the criminal plan.[16] Direct proof of a person in agreement to
commit a crime is not necessary. It is enough that at the time of the
commission of a crime, all the malefactors had the same purpose and were
united in their execution.[17] Once established, all the conspirators are
criminally liable as co-principals regardless of the degree of participation of
each of them for in contemplation of the law, the act of one is the act of all. [18]
Criminal conspiracy must always be founded on facts, not on mere
inferences, conjectures and presumptions. [19] Mere knowledge, acquiescence
to or approval of the act without cooperation or agreement to cooperate, is
not enough to constitute one party to a conspiracy absent the intentional
participation in the act with a view to the furtherance of the common
objective and purpose.[20] Moreover, one is not criminally liable for his act
done outside the contemplation of the conspirators. Co-conspirators are
criminally liable only for acts done pursuant to the conspiring on how and
what are the necessary and logic consequence of the intended crime. [21]
In this case, when appellant Armando asked Eugene at the store of
Wilma whether the latter was going to buy something from the store, Eugene
was peeved and remonstrated that he and Armando had no quarrel between
them. Appellant Armando was likewise irked at the reaction of Eugene
because from the store, appellant Armando stationed himself by the gate of
the Mondragon Compound near the sari-sari store of Wilma. Appellants
Ricardo, Marciano, Jr. and Robito joined their brother, appellant Armando at
the gate. Appellant Ricardo and accused Robito were armed with
knives. When Eugene passed by the gate to the compound, appellant
Armando pulled Eugene to the gate but when the latter resisted, all the
appellants ganged up on Eugene. Appellant Armando took the wooden
support of the clothesline and hit Eugene with it. Eugene was stabbed three
times on his chest even as he tried to parry the thrusts. When Arnold rushed
to the situs criminis to pacify the appellants and accused Robito, appellant
Ricardo stabbed him on the left side of his body. The other appellants and
accused Robito joined appellant Ricardo and ganged up on Arnold. They
stabbed Arnold anew twice on his forearm. Teresito Mondragon, the father-
in-law of appellant Ricardo intervened and forthwith, all the appellants,
including accused Robito returned to the Mondragon Compound. Patently, all
the appellants by their simultaneous collective acts before and after the
commission of the crimes were united in one common objective, to kill
Eugene, and cause injuries to Arnold for trying to intervene and prevent
bloodshed. Hence, all the appellants are criminally liable for the death of
Eugene and for the injuries of Arnold. It does not matter who among the
appellants stabbed Eugene or inflicted injuries on Arnold. The act of one is
the act of the others.
However, for the death of Leonilo, the Court believes that the appellants
are not criminally liable. The prosecution failed to adduce evidence that the
appellants and the accused Robito conspired to kill Leonilo. The appellants
did not actually see Leonilo rushing out from his house to the situs criminis.
They had no foreknowledge that the accused Robito would stab
Leonilo. There was no evidence presented by the prosecution to prove that all
the appellants assisted the accused Robito in killing Leonilo. It must be
recalled that Leonilo rushed out of his house when he saw the commotion,
with the intention of aiding the victim or pacifying the protagonists. He was,
however, stopped by accused Robito who suddenly stabbed him on the
chest. Leonilo retreated and asked for help. Wilma Broce testified that only
the accused Robito stabbed Leonilo:
Q After that, what happened next?
A Leonilo Broce came out of his house.
Q Where is the house of Leonilo Broce?
A Still located at Sumakwel.
Q In that case, the very house where Eugene Tayaktak leaned on
when he was ganged up by the four?
A Yes.
Q What happened after that?
A When he came out from the house and saw that it was Eugene
Tayaktak, he proceeded to approach them but he was not able
to approach them because he was met by Robit Bebot
Caballero and stabbed by Robito Caballero.
Q Was LeoniloBroce (sic) hit when he was stabbed by Robito
Caballero?
A Yes. He immediately ran back and said: Tio, help me because I
am hit.
INTERPRETERS (observation)
Witness demonstrating by holding her left armpit.
Q Was Eugene Tayaktak able to escape from the attach (sic) of the
Caballero brothers?
A Not (sic).
Q Now what happened to Eugene Tayaktak?
A He appeared very weak and he was staggering.
Q Do you know where Eugene Tayaktak now?
A Already dead.
Q What happened to Leonilo Broce, where is he now?
A The two of them were (sic) already dead.
Q Now, when did the trouble stop if it stopped?
A It stopped when Dodong Mondragon arrived.
Q What did the accused do after the trouble was stopped?
A They went inside the compound of his (sic) father.
Q What happened next?
A Nothing happened. Both of them were brought to the hospital.[22]
In sum, the trial court committed reversible error in convicting the
appellants of murder for the death of Leonilo. As this Court held in People v.
Flora:[23]
However, we cannot find Edwin Flora similarly responsible for the death of
Emerita Roma and the injury of Flor Espinas. The evidence only shows
conspiracy to kill Ireneo Gallarte and no one else. For acts done outside the
contemplation of the conspirators only the actual perpetrators are
liable. In People v. De la Cerna, 21 SCRA 569, 570 (1967), we held:
... And the rule has always been that co-conspirators are liable only for acts
done pursuant to the conspiracy. For other acts done outside the
contemplation of the co-conspirators or which are not the necessary and
logical consequence of the intended crime, only the actual perpetrators are
liable. Here, only Serapio killed (sic) Casiano Cabizares. The latter was not
even going to the aid of his father Rafael but was fleeing away when shot.
To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only
of the murder of Ireneo Gallarte. He has no liability for the death of Emerita
Roma nor the injuries of Flor Espinas caused by his co-accused Hermogenes
Flora.
Crimes Committed by Appellants
In Criminal Case No. RTC-1218, the appellants are guilty as co-
principals by direct participation of murder, qualified by treachery. In order
that treachery may be considered as a qualifying circumstance, the
prosecution is burdened to prove that:
.... (1) the employment of means of execution that give the person attacked
no opportunity to defend himself or to retaliate; and (2) the means of
execution was deliberately or consciously adopted. [24]
Even a frontal attack is treacherous if it is sudden and the victim is
unarmed. The essence of treachery is a swift and unexpected attack on the
unarmed victim.[25]
In this case, Eugene was unarmed. He had no inkling that he would be
waylaid as he sauntered on his way to his girlfriend Susanas house. On the
other hand, appellant Armando was armed with a wooden pole while
appellant Ricardo and accused Robito were armed with knives. The attack on
the hapless Eugene was swift and unannounced. Undeniably, the appellants
killed Eugene with treachery.
In Criminal Case No. RTC-1219, the appellants are guilty of frustrated
murder under Article 248 in relation to Article 6, first paragraph of the
Revised Penal Code which reads:
A felony is consummated when all the elements necessary for its execution
and accomplishment are present; and it is frustrated when the offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
The essential elements of a frustrated felony are as follows:
Elements:
1. The offender performs all the acts of execution;
2. All the acts performed would produce the felony as a
consequence;
3. But the felony is not produced;
4. By reason of causes independent of the will of the
perpetrator.[26]
In the leading case of United States v. Eduave,[27] Justice Moreland,
speaking for the Court, distinguished an attempted from frustrated felony. He
said that to be an attempted crime the purpose of the offender must be
thwarted by a foreign force or agency which intervenes and compels him to
stop prior to the moment when he has performed all the acts which should
produce the crime as a consequence, which act it is his intention to perform.
The subjective phase in the commission of a crime is that portion of the
acts constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which,
with prior acts, should result in the consummated crime. Thereafter, the
phase is objective.
In case of an attempted crime, the offender never passes the subjective
phase in the commission of the crime. The offender does not arrive at the
point of performing all of the acts of execution which should produce the
crime. He is stopped short of that point by some cause apart from his
voluntary desistance.
On the other hand, a crime is frustrated when the offender has
performed all the acts of execution which should result in the consummation
of the crime. The offender has passed the subjective phase in the commission
of the crime. Subjectively, the crime is complete. Nothing interrupted the
offender while passing through the subjective phase. He did all that is
necessary to consummate the crime. However, the crime is not consummated
by reason of the intervention of causes independent of the will of the
offender. In homicide cases, the offender is said to have performed all the
acts of execution if the wound inflicted on the victim is mortal and could
cause the death of the victim barring medical intervention or attendance. [28]
If one inflicts physical injuries on another but the latter survives, the
crime committed is either consummated physical injuries, if the offender had
no intention to kill the victim or frustrated or attempted homicide or
frustrated murder or attempted murder if the offender intends to kill the
victim. Intent to kill may be proved by evidence of: (a) motive; (b) the nature
or number of weapons used in the commission of the crime; (c) the nature
and number of wounds inflicted on the victim; (d) the manner the crime was
committed; and (e) words uttered by the offender at the time the injuries are
inflicted by him on the victim.
In this case, appellant Armando was armed with a wooden
pole. Appellant Ricardo and accused Robito used knives. Dr. Quisumbing,
who attended to and operated on Arnold, testified that the stab wound
sustained by Arnold on the left side of his body was mortal and could have
caused his death were it not for the timely and effective medical intervention:
Q And how about the size and the depth of the wounds and how
big is each wound and how deep.
A The first wound is 2 cm. and the 2 nd is about 2 inches and the
3rd is 2 inches in the left, penetrating the chest near the thorax
along the lateral line.
Q So, aside from the 3rd wound there are wounds which are not
really very serious?
A As I said before, the most serious is the 3rd wound.
Q So even without the other wounds the 3 rd wound - - it could be
the cause of the death of the victim?
A Yes, Sir.[29]
It cannot be denied that the appellants had the intention to kill Arnold.
The appellants performed all the acts of execution but the crime was not
consummated because of the timely medical intervention.
Treachery attended the stabbing of Arnold because he was unarmed and
the attack on him was swift and sudden. He had no means and there was no
time for him to defend himself. In sum, the appellants are guilty of frustrated
murder.
The appellants denial of the crimes charged in Criminal Case Nos. RTC-
1218 and RTC-1219 cannot prevail over Wilmas and Arnolds positive and
straightforward testimonies that the appellants killed Eugene and stabbed
Arnold. Moreover, Wilma and Arnold had no motive to falsely implicate the
appellants for the said crimes; hence, their testimony must be accorded full
probative weight.[30]
Equally barren of merit is appellants defense of alibi. Alibi as a defense
is inherently weak for it is easy to fabricate and difficult to disprove. To merit
approbation, the appellants were burdened to prove with clear and
convincing evidence that at the time the crimes were committed, they were in
a place other than the situs of the crimes such that it was physically
impossible for them to have committed said crimes. [31]The appellants
dismally failed in this respect. They testified that they were at the house of
appellant Ricardo, which was conveniently near the place where Eugene was
killed and Arnold was assaulted. Moreover, the records show that Marciano,
Jr. was treated for his superficial injuries on August 4, 1996, a day after the
incident. This belies the claim of appellants Ricardo and Armando that they
were allegedly in the hospital at the time of the incident.
Penalties Imposable on Appellants
The trial court imposed the death penalty on appellants in Criminal Case
No. RTC-1218 on its finding that treachery and abuse of superior strength
were attendant in the killing of Eugene. The Solicitor General does not agree
with the trial court and contends that abuse of superior strength was absorbed
by treachery; hence, should not be considered as a separate aggravating
circumstance in the imposition of the penalty on the appellants. The Court
agrees with the Solicitor General. Abuse of superior strength, concurring
with treachery is absorbed by treachery.[32]
The penalty for murder under Article 248 of the Revised Penal Code, as
amended by Republic Act 7659, is reclusion perpetua to death. Since aside
from the qualified circumstance of treachery, no other modifying
circumstance was attendant in the commission of the crime, the proper
penalty for the crime is reclusion perpetua conformably with Article 63 of
the Revised Penal Code.
In Criminal Case No. RTC-1219, for frustrated murder, the Solicitor
General contends that the indeterminate penalty of from 12 years
of reclusion temporal as minimum, to 17 years, 4 months and 1 day
ofreclusion temporal as maximum, imposed on the appellants is not
correct. The Court agrees with the Solicitor General. The penalty for
frustrated murder is one degree lower than reclusion perpetua to death,
which is reclusion temporal.[33] The latter penalty has a range of 12 years and
1 day to 20 years. The maximum of the indeterminate penalty should be
taken from reclusion temporal, the penalty for the crime taking into account
any modifying circumstances in the commission of the crime. The minimum
of the indeterminate penalty shall be taken from the full range of prision
mayor which is one degree lower thanreclusion temporal. Since there is no
modifying circumstance in the commission of frustrated murder, the
appellants should be meted an indeterminate penalty of from nine (9) years
and four (4) months of prision mayor in its medium period as minimum to
seventeen (17) years and four (4) months of reclusion temporal in its medium
period, as maximum.
Civil Liabilities of Appellants
The trial court ordered the appellants in Criminal Case No. RTC-1218 to
pay in solidum the heirs of the victim Eugene Tayactac, the amount
of P75,000 by way of indemnity. The trial court did not award moral
damages to said heirs. This is erroneous. Since the penalty imposed on the
appellants is reclusion perpetua, the civil indemnity should be
only P50,000. The heirs of the victim should also be awarded the amount
of P50,000 as moral damages.[34]
In Criminal Case No. RTC-1219, the trial court did not award moral
damages to the victim Arnold Barcuma on its finding that the prosecution
failed to adduce any evidence to prove said damages. The Court disagrees
with the trial court. The victim Arnold Barcuma himself testified on his
injuries.[35] He is entitled to moral damages in the amount of P25,000.
[36]
Having suffered injuries and undergone medical treatment he is, as well
entitled to actual damages, which in the absence of evidence would,
nevertheless, entitle him to an award of temperate or moderate damages,
herein fixed at P10,000.
The Verdict of the Court
IN LIGHT OF ALL THE FOREGOING, the Decision of the
Regional Trial Court of San Carlos City (Negros Occidental), Branch 57, in
Criminal Cases Nos. RTC-1217 up to RTC-1219 is AFFIRMED with the
following MODIFICATIONS:
1. In Criminal Case No. RTC-1217, the Court, finding the
appellants not guilty of the crime charged for failure of the
prosecution to prove their guilt beyond reasonable doubt,
REVERSES the judgment of the trial court and ACQUITS them
of the said charge.
2. In Criminal Case No. RTC-1218, the appellants are found guilty
beyond reasonable doubt of murder under Article 248 of the
Revised Penal Code, qualified by treachery, and are sentenced
to suffer the penalty of reclusion perpetua and ordered to pay
in solidum the heirs of the victim Eugene Tayactac, the amounts
of P50,000 as civil indemnity and P50,000 as moral damages.
3. In Criminal Case No. RTC-1219, the appellants are found guilty
beyond reasonable doubt of frustrated murder under Article 248
in relation to Article 6, first paragraph of the Revised Penal
Code and are hereby sentenced to suffer an indeterminate
penalty of from nine (9) years and four (4) months of prision
mayor in its medium period, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal in its medium
period, as maximum. The appellants are hereby ordered to pay
in solidum to the victim Arnold Barcuma the amount of P25,000
as moral damages and P10,000 as temperate or moderate
damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur.
 The defendant is accused of the crime of rape, the information alleging "that
on or about the 26th day of February, 1925, in the City of Manila, Philippine
Islands, the said accused wilfully, unlawfully, and feloniously, by means of
force and by intimidating one Conrada Jocson with killing her with a knife
which said accused held in his hand should she not accede to his wish, did
then and there lie with and have carnal knowledge of said Conrada Jocson, a
girl under 12 years of age. That in the commission of the crime the following
aggravating circumstances existed to wit: (1) The accused is the husband of
the grandmother of said Conrada Jocson and (2) the crime was committed
with grave abuse of confidence, inasmuch as the offended and the accused
living in the same house."

The defendant is a man 70 years of age and the offended party is a child of 9
years, the granddaughter of the defendant's wife. There can be no question as
to the defendant's guilt. The evidence shows that he and the offended party
were living in the same house and that taking advantage of the absence of the
other inhabitants of the house, he had intercourse with the child by force and
violence. He admits that he did so, but maintains that he was intoxicated at
the time and did not know what he was doing. The testimony of the witnesses
for the prosecution is, however, to the effect that he did not show any signs of
intoxication at the time of the commission of the crime or immediately
Republic of the Philippines afterwards.
SUPREME COURT
Manila The court below found the defendant guilty of frustrated rape and sentenced
him to suffer ten years and one day of prision mayor. In holding that the
EN BANC crime was frustrated, the court seems to have been of the opinion that there
can be no consummated rape without a complete penetration of the hymen.
G.R. No. L-23916 October 14, 1925 This view is not accordance with the weight of authority; in fact, it is
contrary to practically all modern authorities. In State vs. Johnson (91 Mo.,
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, 439), the court held that "finding the hymen intact is not always proof that no
vs. rape has been committed, nor virginity; for the case are not rare where the
DOMINGO HERNANDEZ, defendant-appellant. hymen had to be removed after impregnation and in order to permit
delivery."
Cirilo B. Santos for appellant.
Acting Attorney-General Reyes for appllees In the same case, the court further said:

Any penetration whether reaching to the hymen or not is sufficient to

constitute the crime; for as Lord Meadowbank said in case in
OSTRAND, J.: Scotland. "Scientific and anatomical distinctions as to where the
vagina commences are worthless in a case of rape; it is enough if the
woman's body is entered; and it is not necessary to show to what
extent penetration of the parts has taken place; whether it has gone
 past the hymen, into what is anatomically called the hymen, or even
so far as to touch the hymen." (Stewart on Legal Medicine, p.
137.)1awph!l.net

In People vs. Rivers (147 Mich., 643), the court says:

The law may now indeed be considered as settled that while the
rupturing of the hymen is not indispensable to a conviction, there
must be proof of some degree of entrance of the male organ "within
the labia of Pudendum."

In the following cases it has been held that entry of the labia or lips of the
female organ, merely, without rupture of the hymen or laceration of the
vagina, is sufficient to warrant conviction of the consummated crime of rape.
(Kenny vs. State [Tex. Crim. App.]; 65 L. R. A., 316; 79 S. W., 817 [1903].
See [Eng.] Reg. vs. Lines, 1 Car. & K., 393 [1844]; 44 N. W., 571 [1890];
[Tex.] Rodgers vs. State, 30 Tex. App., 510; 17 S. W., 1077 [1891]; [Wis.]
Brauer vs. State, 25 Wis., 413 [1870].)

In the present case the physician who examined the offended party
immediately after the commission of the crime found the labia and the
opening of the vagina inflamed together with an abundance of semen, though
the hymen was intact. It also appears from the evidence that the defendant
lay on top of the child for over fifteen minutes and continued his efforts of
penetration during that period; the child testifies that the defendant succeeded
in a partial penetration and that she felt intense pain. In these circumstances,
the crime must be regarded as consummated.

The judgment appealed from is therefore modified by finding the defendant

guilty of the consummated crime of rape and, in view of the aggravating
circumstances mentioned in the information, the penalty imposed upon the
defendant is hereby increased to seventeen years, four months and one day
of reclusion temporal, with the accessory penalties prescribed by law. In all
other respects the judgment is affirmed with the costs against the appellant.
So ordered.

Avancea, C. J., Street, Malcolm, Villamor, Johns, Romualdez and Villa-

Real, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 165483 September 12, 2006
RUJJERIC Z. PALAGANAS,1 petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
For what is a man, what has he got?
If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows -
And did it my way!
The song evokes the bitterest passions. This is not the first time the song "My
Way"2 has triggered violent behavior resulting in people coming to blows. In
the case at bar, the few lines of the song depicted what came to pass when the
victims and the aggressors tried to outdo each other in their rendition of the
song.
In this Petition for Review on Certiorari3 under Rule 45 of the Revised Rules
of Court, petitioner Rujjeric Z. Palaganas prays for the reversal of the
Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated 30
September 2004,4 affirming with modification the Decision of the Regional
Trial Court (RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases
No. U-9608, U-9609, and U-9610 and U-9634, dated 28 October
1998,5 finding petitioner guilty beyond reasonable doubt of the crime of
Homicide under Article 249 of the Revised Penal Code, and two (2) counts
of Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of
the same Code.
On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas
(Ferdinand), were charged under four (4) separate Informations 6 for two (2)
counts of Frustrated Murder, one (1) count of Murder, and one (1) count for
Violation of COMELEC Resolution No. 29587 relative to Article 22, Section
261, of the Omnibus Election Code,8allegedly committed as follows:
CRIMINAL CASE NO. U-9608
That on or about January 16, 1998, in the evening at Poblacion,
Manaoag, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused armed with an unlicensed firearm,
with intent to kill, treachery and evident premeditation, conspiring
together, did then and there willfully, unlawfully and feloniously
shoot SERVILLANO FERRER, JR. y Juanatas, inflicting upon him
"gunshot wound penetrating perforating abdomen, urinary bladder,
rectum bullet sacral region," the accused having thus 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 the causes independent of the will of the accused and
that is due to the timely medical assistance rendered to said
Servillano J. Ferrer, Jr. which prevented his death, to his damage
and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the
Revised Penal Code, as amended.
CRIMINAL CASE NO. U-9609
That on or about January 16, 1998, in the evening at Poblacion,
Manaoag, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused armed with an unlicensed firearm,
with intent to kill, treachery and evident premeditation, conspiring
together, did then and there willfully, unlawfully and feloniously
shoot MICHAEL FERRER alias "Boying Ferrer", inflicting upon
him gunshot wound on the right shoulder, the accused having thus
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 the causes independent of the will of the
accused and that is due to the medical assistance rendered to said
Michael "Boying" Ferrer which prevented his death, to his damage
and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the
Revised Penal Code, as amended.
CRIMINAL CASE NO. U-9610
That on or about January 16, 1998, in the evening at Poblacion,
Manaoag, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused armed with an unlicensed firearm,
with intent to kill, treachery and evident premeditation, conspiring
together, did then and there willfully, unlawfully and feloniously
shoot MELTON FERRER alias "TONY FERRER", inflicting upon
him mortal gunshot wounds in the head and right thigh which caused
the instantaneous death of said Melton "Tony" Ferrer, to the
damage and prejudice of his heirs.
CONTRARY to Art. 248 of the Revised Penal Code, as amended by
R.A. 7659.
CRIMINAL CASE NO. U-9634
That on or about January 16, 1998 which is within the election
period at Poblacion, Manaoag, Pangasinan, and within the
jurisdiction of this Honorable Court, the above-named accused did
then and there willfully, unlawfully and feloniously bear and carry
one (1) caliber .38 without first securing the necessary permit/license
to do the same.
CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of
the OMNIBUS ELECTION CODE, as amended. 9 (Underscoring
supplied.)
When arraigned on separate dates, 10 petitioner and Ferdinand entered
separate pleas of "Not Guilty." Upon motion of Ferdinand, 11 the four cases
were consolidated and were assigned to Branch 46 of the RTC in Urdaneta,
Pangasinan.12
The factual antecedents as viewed by the prosecution, are summarized in the
Comment dated 18 April 2005 of the Office of the Solicitor General, 13 to wit:
On January 16, 1998, around 8:00 in the evening, brothers
Servillano, [Melton] and Michael, all surnamed Ferrer were having a
drinking spree in their house because [Melton], who was already
living in San Fernando, La Union, visited his three brothers and
mother at their house in Sitio Baloking, Poblacion, Manaoag,
Pangasinan. At 9:45 in the evening, the three brothers decided to
proceed to Tidbits Videoke bar located at the corner of Malvar and
Rizal Streets, Poblacion, Manaoag to continue their drinking spree
and to sing. Inside the karaoke bar, they were having a good time,
singing and drinking beer.
Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together
with Ferdinand Palaganas and Virgilio Bautista. At that time, only
the Ferrer brothers were the customers in the bar. The two groups
occupied separate tables. Later, when Jaime Palaganas was singing,
[Melton] Ferrer sang along with him as he was familiar with the song
[My Way]. Jaime however, resented this and went near the table of
the Ferrer brothers and said in Pangasinan dialect "As if you are
tough guys." Jaime further said "You are already insulting me in that
way." Then, Jaime struck Servillano Ferrer with the microphone,
hitting the back of his head. A rumble ensued between the Ferrer
brothers on the one hand, and the Palaganases, on the other hand.
Virgilio Bautista did not join the fray as he left the place. During the
 rumble, Ferdinand went out of the bar. He was however pursued by
Michael. When Servillano saw Michael, he also went out and told
the latter not to follow Ferdinand. Servillano and Michael then went
back inside the bar and continued their fight with Jaime.
Meantime, Edith Palaganas, sister of Jaime and the owner of the bar,
arrived and pacified them. Servillano noticed that his wristwatch was
missing. Unable to locate the watch inside the bar, the Ferrer brothers
went outside. They saw Ferdinand about eight (8) meters away
standing at Rizal Street. Ferdinand was pointing at them and said to
his companion, later identified as petitioner [Rujjeric] Palaganas,
"Oraratan paltog mo lara", meaning "They are the ones, shoot
them." Petitioner then shot them hitting Servillano first at the left
side of the abdomen, causing him to fall on the ground, and followed
by [Melton] who also fell to the ground. When Servillano noticed
that [Melton] was no longer moving, he told Michael "Bato, bato."
Michael picked up some stones and threw them at petitioner and
Ferdinand. The latter then left the place. Afterwards, the police
officers came and the Ferrer brothers were brought to the Manaoag
Hospital and later to Villaflor Hospital in Dagupan. Servillano later
discovered that [Melton] was fatally hit in the head while Michael
was hit in the right shoulder.
On the other hand, the defense, in its Appellant's Brief dated 3 December
1999,14 asserted the following set of facts:
On January 16, 1998, at around 11:00 in the evening, after a drinking
session at their house, the brothers Melton (Tony), Servillano
(Junior) and Michael (Boying), all surnamed Ferrer, occupied a table
inside the Tidbits Caf and Videoke Bar and started drinking and
singing. About thirty minutes later, Jaime Palaganas along with his
nephew Ferdinand (Apo) and friend Virgilio Bautista arrived at the
bar and occupied a table near that of the Ferrers'.
After the Ferrers' turn in singing, the microphone was handed over to
Jaime Palaganas, who then started to sing. On his third song [My
Way], Jaime was joined in his singing by Tony Ferrer, who sang
loudly and in an obviously mocking manner. This infuriated Jaime,
who then accosted Tony, saying, "You are already insulting us." The
statement resulted in a free for all fight between the Ferrers', on one
hand, and the Palaganases on the other. Jaime was mauled and
Ferdinand, was hit on the face and was chased outside of the bar by
Junior and Boying Ferrer.
Ferdinand then ran towards the house of the appellant Rujjeric
Palaganas, his brother, and sought the help of the latter. Rujjeric,
stirred from his sleep by his brother's shouts, went out of his house
and, noticing that the van of his uncle was in front of the Tidbits
Videoke Bar, proceeded to that place. Before reaching the bar,
however, he was suddenly stoned by the Ferrer brothers and was hit
on different parts of his body, so he turned around and struggled to
run towards his house. He then met his brother, Ferdinand, going
towards the bar, so he tugged him and urged him to run towards the
opposite direction as the Ferrer brothers continued pelting them with
large stones. Rujjeric then noticed that Ferdinand was carrying a gun,
and, on instinct, grabbed the gun from the latter, faced the Ferrer
brothers and fired one shot in the air to force the brothers to retreat.
Much to his surprise, however, the Ferrer brothers continued
throwing stones and when (sic) the appellant was again hit several
times. Unable to bear the pain, he closed his eyes and pulled the
trigger.
On 28 October 1998, the trial court rendered its Decision finding petitioner
guilty only of the crime of Homicide and two (2) counts of Frustrated
Homicide.15 He was, however, acquitted of the charge of Violation of
COMELEC Resolution No. 2958 in relation to Section 261 of the Omnibus
Election Code.16 On the other hand, Ferdinand was acquitted of all the
charges against him.17
In holding that petitioner is liable for the crimes of Homicide and Frustrated
Homicide but not for Murder and Frustrated Murder, the trial court explained
that there was no conspiracy between petitioner and Ferdinand in killing
Melton and wounding Servillano and Michael. 18 According to the trial court,
the mere fact that Ferdinand "pointed" to where the Ferrer brothers were and
uttered to petitioner "Araratan, paltog mo lara!" (They are the ones, shoot
them!), does not in itself connote common design or unity of purpose to kill.
It also took note of the fact that petitioner was never a participant in the
rumble inside the Tidbits Cafe Videoke Bar (videoke bar) on the night of 16
January 1998. He was merely called by Ferdinand to rescue their uncle,
Jaime, who was being assaulted by the Ferrer brothers. It further stated that
the shooting was instantaneous and without any prior plan or agreement with
Ferdinand to execute the same. It found that petitioner is solely liable for
killing Melton and for wounding Servillano and Michael, and that Ferdinand
is not criminally responsible for the act of petitioner.
Further, it declared that there was no treachery that will qualify the crimes as
murder and frustrated murder since the Ferrer brothers were given the chance
to defend themselves during the shooting incident by stoning the petitioner
and Ferdinand.19 It reasoned that the sudden and unexpected attack, without
the slightest provocation on the part of the victims, was absent. In addition, it
ratiocinated that there was no evident premeditation as there was no
sufficient period of time that lapsed from the point where Ferdinand called
the petitioner for help up to the point of the shooting of the Ferrer
brothers.20 Petitioner was sleeping at his house at the time he heard Ferdinand
calling him for help. Immediately, petitioner, still clad in pajama and
sleeveless shirt, went out of his room to meet Ferdinand. Thereafter, both
petitioner and Ferdinand went to the videoke bar where they met the Ferrer
brothers and, shortly afterwards, the shooting ensued. In other words,
according to the trial court, the sequence of the events are so fast that it is
improbable for the petitioner to have ample time and opportunity to then plan
and organize the shooting.
Corollarily, it also stated that petitioner cannot successfully invoke self-
defense since there was no actual or imminent danger to his life at the time
he and Ferdinand saw the Ferrer brothers outside the videoke bar. 21 It noted
that when petitioner and Ferdinand saw the Ferrer brothers outside the
videoke bar, the latter were not carrying any weapon. Petitioner then was free
to run or take cover when the Ferrer brothers started pelting them with
stones. Petitioner, however, opted to shoot the Ferrer brothers. It also stated
that the use by petitioner of a gun was not a reasonable means to prevent the
attack of the Ferrer brothers since the latter were only equipped with stones,
and that the gun was deadlier compared to stones. Moreover, it also found
that petitioner used an unlicensed firearm in shooting the Ferrer brothers. 22
As regards the Violation of COMELEC Resolution No. 2958, in relation to
Section 261 of the Omnibus Election Code, the trial court acquitted the
petitioner of the offense as his use and possession of a gun was not for the
purpose of disrupting election activities.23 In conclusion, the trial court held:
WHEREFORE, JUDGMENT is hereby rendered as follows:
1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of
HOMICIDE (Not Murder) with the use of an unlicensed firearm. The
penalty imposable is in its maximum period which is 20 years. The
Court sentences [Rujjeric] Palaganas to suffer the penalty of
Reclusion Temporal in its maximum period or 20 years of
imprisonment; and to pay the heirs of [MELTON] Ferrer the sum
of P7,791.50 as actual medical expenses of [MELTON]
Ferrer;P500,000.00 as moral damages representing unearned income
of [MELTON]; P50,000.00 for the death of [MELTON]; P50,000.00
for exemplary damages and P100,000.00 for burial and funeral
expenses.
Ferdinand Palaganas is hereby ACQUITTED for failure of the
prosecution to prove conspiracy and likewise, for failure to prove the
guilt of Ferdinand Palaganas beyond reasonable doubt.
2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use
of an unlicensed firearm, the Court sentences him to suffer the
penalty of Prision Mayor in its maximum period or 12 years of
imprisonment and to pay Servillano Ferrer the sum of P163,569.90
for his medical expenses andP50,000.00 for exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution
to prove conspiracy and likewise, for failure to prove the guilt of
Ferdinand Palaganas beyond reasonable doubt.
3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use
of an unlicensed firearm, the Court sentences him to suffer the
penalty of Prision Mayor in its maximum period or 12 years of
imprisonment; and to pay Michael Ferrer the sum of P2,259.35 for
his medical expenses andP50,000.00 for exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution
to prove conspiracy and likewise, for failure to prove the guilt of
Ferdinand Palaganas beyond reasonable doubt.
 Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the
mother of the Ferrer brothers, the amount of P100,000.00 as
attorney's fees in CRIM. CASES NOS. U-9608, U-9609, U-9610.
4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to
prove the guilt of [Rujjeric] Palaganas beyond reasonable doubt of
the crime of Violation of COMELEC Resolution No. 2958 in relation
with Section 261 of the Omnibus Election Code, the Court
ACQUITS [RUJJERIC] PALAGANAS.24
Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated
28 October 1998, before the Court of Appeals. In its Decision dated 30
September 2004, the Court of Appeals affirmed with modifications the
assailed RTC Decision. In modifying the Decision of the trial court, the
appellate court held that the mitigating circumstance of voluntary surrender
under Article 13, No. 7, of the Revised Penal Code should be appreciated in
favor of petitioner since the latter, accompanied by his counsel, voluntarily
appeared before the trial court, even prior to its issuance of a warrant of
arrest against him.25 It also stated that the Indeterminate Sentence Law should
be applied in imposing the penalty upon the petitioner. 26 The dispositive
portion of the Court of Appeals' Decision reads:
WHEREFORE, the judgment of conviction is hereby AFFIRMED,
subject to the MODIFICATION that the penalty to be imposed for
the crimes which the appellant committed are as follows:
(1) For Homicide (under Criminal Case No. U-9610), the appellant is
ordered to suffer imprisonment of ten (10) years of prision mayor as
minimum to seventeen (17) years and four (4) months of reclusion
temporalas maximum. Appellant is also ordered to pay the heirs of
Melton Ferrer civil indemnity in the amount ofP50,000.00, moral
damages in the amount of P50,000.00 without need of proof and
actual damages in the amount of P43,556.00.
(2) For Frustrated Homicide (under Criminal Case No. U-9609), the
appellant is hereby ordered to suffer imprisonment of four (4) years
and two (2) months of prision correcional as minimum to ten (10)
years ofprision mayor as maximum. Appellant is also ordered to pay
Michael Ferrer actual damages in the amount of P2,259.35 and moral
damages in the amount of P30,000.00.
(3) For Frustrated Homicide (under Criminal Case No. U-9608), the
appellant is hereby penalized with imprisonment of four (4) years
and two (2) months of prision correcional as minimum to ten (10)
years ofprision mayor as maximum. Appellant is also ordered to pay
Servillano Ferrer actual damages in the amount of P163,569.90 and
moral damages in the amount of P30,000.00.27
On 16 November 2004, petitioner lodged the instant Petition for Review
before this Court on the basis of the following arguments:
I.
THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE JUDGMENT OF CONVICTION OF THE
TRIAL COURT.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT
ACQUITTING ACCUSED-APPELLANT ON THE GROUND OF
LAWFUL SELF-DEFENSE.28
Anent the first issue, petitioner argued that all the elements of a valid self-
defense are present in the instant case and, thus, his acquittal on all the
charges is proper; that when he fired his gun on that fateful night, he was
then a victim of an unlawful aggression perpetrated by the Ferrer brothers;
that he, in fact, sustained an injury in his left leg and left shoulder caused by
the stones thrown by the Ferrer brothers; that the appellate court failed to
consider a material evidence described as "Exhibit O"; that "Exhibit O"
should have been given due weight since it shows that there was slug
embedded on the sawali wall near the sign "Tidbits Caf and Videoke Bar";
that the height from which the slug was taken was about seven feet from the
ground; that if it was true that petitioner and Ferdinand were waiting for the
Ferrer brothers outside the videoke bar in order to shoot them, then the
trajectory of the bullets would have been either straight or downward and not
upward considering that the petitioner and the Ferrer brothers were about the
same height (5'6"-5'8"); that the slug found on the wall was, in fact, the
"warning shot" fired by the petitioner; and, that if this exhibit was properly
appreciated by the trial court, petitioner would be acquitted of all the
charges.29
Moreover, petitioner contended that the warning shot proved that that the
Ferrer brothers were the unlawful aggressors since there would have been no
occasion for the petitioner to fire a warning shot if the Ferrer brothers did not
stone him; that the testimony of Michael in the trial court proved that it was
the Ferrer brothers who provoked petitioner to shoot them; and that the
Ferrer brothers pelted them with stones even after the "warning shot." 30
Petitioner's contention must fail.
Article 11, paragraph (1), of the Revised Penal Code provides for the
elements and/or requisites in order that a plea of self-defense may be validly
considered in absolving a person from criminal liability, viz:
ART. 11. Justifying circumstances. The following do not incur any
criminal liability:
1. Anyone who acts in defense of his person or rights, provided that
the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or
repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself. x x x.
As an element of self-defense, unlawful aggression refers to an assault or
attack, or a threat thereof in an imminent and immediate manner, which
places the defendant's life in actual peril. 31 It is an act positively strong
showing the wrongful intent of the aggressor and not merely a threatening or
intimidating attitude.32 It is also described as a sudden and unprovoked attack
of immediate and imminent kind to the life, safety or rights of the person
attacked.33
There is an unlawful aggression on the part of the victim when he puts in
actual or imminent peril the life, limb, or right of the person invoking self-
defense. There must be actual physical force or actual use of weapon. 34 In
order to constitute unlawful aggression, the person attacked must be
confronted by a real threat on his life and limb; and the peril sought to be
avoided is imminent and actual, not merely imaginary.35
In the case at bar, it is clear that there was no unlawful aggression on the part
of the Ferrer brothers that justified the act of petitioner in shooting them.
There were no actual or imminent danger to the lives of petitioner and
Ferdinand when they proceeded and arrived at the videoke bar and saw
thereat the Ferrer brothers. It appears that the Ferrer brothers then were
merely standing outside the videoke bar and were not carrying any weapon
when the petitioner arrived with his brother Ferdinand and started firing his
gun.36
Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to
shoot them by pelting the latter with stones, the shooting of the Ferrer
brothers is still unjustified. When the Ferrer brothers started throwing stones,
petitioner was not in a state of actual or imminent danger considering the
wide distance (4-5 meters) of the latter from the location of the
former.37 Petitioner was not cornered nor trapped in a specific area such that
he had no way out, nor was his back against the wall. He was still capable of
avoiding the stones by running away or by taking cover. He could have also
called or proceeded to the proper authorities for help. Indeed, petitioner had
several options in avoiding dangers to his life other than confronting the
Ferrer brothers with a gun.
The fact that petitioner sustained injuries in his left leg and left shoulder,
allegedly caused by the stones thrown by the Ferrer brothers, does not signify
that he was a victim of unlawful aggression or that he acted in self-
defense.38 There is no evidence to show that his wounds were so serious and
severe. The superficiality of the injuries sustained by the petitioner is no
indication that his life and limb were in actual peril. 39
Petitioner's assertion that, despite the fact that he fired a warning shot, the
Ferrer brothers continued to pelt him with stones, 40 will not matter exonerate
him from criminal liability. Firing a warning shot was not the last and only
option he had in order to avoid the stones thrown by the Ferrer brothers. As
stated earlier, he could have run away, or taken cover, or proceeded to the
proper authorities for help. Petitioner, however, opted to shoot the Ferrer
brothers.
It is significant to note that the shooting resulted in the death of Melton, and
wounding of Servillano and Michael. With regard to Melton, a bullet hit his
right thigh, and another bullet hit his head which caused his instant
death.41 As regards Servillano, a bullet penetrated two of his vital organs,
namely, the large intestine and urinary bladder.42 He underwent two (2)
surgeries in order to survive and fully recover.43 Michael, on the other hand,
sustained a gunshot wound on the right shoulder.44 It must also be noted that
the Ferrer brothers were shot near the videoke bar, which contradict
petitioner's claim he was chased by the Ferrer brothers. Given the foregoing
circumstances, it is difficult to believe that the Ferrer brothers were the
unlawful aggressors. As correctly observed by the prosecution, if the
petitioner shot the Ferrer brothers just to defend himself, it defies reason why
he had to shoot the victims at the vital portions of their body, which even led
to the death of Melton who was shot at his head. 45 It is an oft-repeated rule
that the nature and number of wounds inflicted by the accused are constantly
and unremittingly considered important indicia to disprove a plea of self-
defense.46
Let it not be forgotten that unlawful aggression is a primordial element in
self-defense.47 It is an essential and indispensable requisite, for without
unlawful aggression on the part of the victim, there can be, in a jural sense,
no complete or incomplete self-defense. 48 Without unlawful aggression, self-
defense will not have a leg to stand on and this justifying circumstance
cannot and will not be appreciated, even if the other elements are present. 49To
our mind, unlawful aggression, as an element of self-defense, is wanting in
the instant case.
The second element of self-defense requires that the means employed by the
person defending himself must be reasonably necessary to prevent or repel
the unlawful aggression of the victim. The reasonableness of the means
employed may take into account the weapons, the physical condition of the
parties and other circumstances showing that there is a rational equivalence
between the means of attack and the defense. 50 In the case at bar, the
petitioner's act of shooting the Ferrer brothers was not a reasonable and
necessary means of repelling the aggression allegedly initiated by the Ferrer
brothers. As aptly stated by the trial court, petitioner's gun was far deadlier
compared to the stones thrown by the Ferrer brothers. 51
Moreover, we stated earlier that when the Ferrer brothers allegedly threw
stones at the petitioner, the latter had other less harmful options than to shoot
the Ferrer brothers. Such act failed to pass the test of reasonableness of the
means employed in preventing or repelling an unlawful aggression.
With regard to the second issue, petitioner asserts that the Court of Appeals
erred in not acquitting him on the ground of lawful self-defense.
Petitioner's argument is bereft of merit.
In resolving criminal cases where the accused invokes self-defense to escape
criminal liability, this Court consistently held that where an accused admits
killing the victim but invokes self-defense, it is incumbent upon the accused
to prove by clear and convincing evidence that he acted in self-defense. 52 As
the burden of evidence is shifted on the accused to prove all the elements of
self-defense, he must rely on the strength of his own evidence and not on the
weakness of the prosecution.53
As we have already found, there was no unlawful aggression on the part of
the Ferrer brothers which justified the act of petitioner in shooting them. We
also ruled that even if the Ferrer brothers provoked the petitioner to shoot
them, the latter's use of a gun was not a reasonable means of repelling the act
of the Ferrer brothers in throwing stones. It must also be emphasized at this
point that both the trial court and the appellate court found that petitioner
failed to established by clear and convincing evidence his plea of self-
defense. In this regard, it is settled that when the trial court's findings have
been affirmed by the appellate court, said findings are generally conclusive
and binding upon this Court.54 In the present case, we find no compelling
reason to deviate from their findings. Verily, petitioner failed to prove by
clear and convincing evidence that he is entitled to an acquittal on the ground
of lawful self-defense.
On another point, while we agree with the trial court and the Court of
Appeals that petitioner is guilty of the crime of Homicide for the death of
Melton in Criminal Case No. U-9610, and Frustrated Homicide for the
serious injuries sustained by Servillano in Criminal Case No. U-9608, we do
not, however, concur in their ruling that petitioner is guilty of the crime of
Frustrated Homicide as regards to Michael in Criminal Case No. U-9609. We
hold that petitioner therein is guilty only of the crime of Attempted
Homicide.
Article 6 of the Revised Penal Code states and defines the stages of a felony
in the following manner:
ART. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies, as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the elements necessary for the for
its execution and accomplishment are present; and it
is frustrated when the offender performs all the acts of execution
which would produce the felony as a consequence but which,
 nevertheless, do not produce it by reason or causes independent of
the will of the perpetrator.
There is an attempt when the offender commences the commission
of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance (italics
supplied).
Based on the foregoing provision, the distinctions between frustrated and
attempted felony are summarized as follows:
1.) In frustrated felony, the offender has performed all the acts of
execution which should produce the felony as a consequence;
whereas in attempted felony, the offender merely commences the
commission of a felony directly by overt acts and does not perform
all the acts of execution.
2.) In frustrated felony, the reason for the non-accomplishment of the
crime is some cause independent of the will of the perpetrator; on the
other hand, in attempted felony, the reason for the non-fulfillment of
the crime is a cause or accident other than the offender's own
spontaneous desistance.
In addition to these distinctions, we have ruled in several cases that when the
accused intended to kill his victim, as manifested by his use of a deadly
weapon in his assault, and his victim sustained fatal or mortal wound/s but
did not die because of timely medical assistance, the crime committed is
frustrated murder or frustrated homicide depending on whether or not any of
the qualifying circumstances under Article 249 of the Revised Penal Code are
present.55 However, if the wound/s sustained by the victim in such a case
were not fatal or mortal, then the crime committed is only attempted murder
or attempted homicide.56 If there was no intent to kill on the part of the
accused and the wound/s sustained by the victim were not fatal, the crime
committed may be serious, less serious or slight physical injury.57
Based on the medical certificate of Michael, as well as the testimony of the
physician who diagnosed and treated Michael, the latter was admitted and
treated at the Dagupan Doctors-Villaflor Memorial Hospital for a single
gunshot wound in his right shoulder caused by the shooting of petitioner. 58 It
was also stated in his medical certificate that he was discharged on the same
day he was admitted and that the treatment duration for such wound would
be for six to eight days only.59 Given these set of undisputed facts, it is clear
that the gunshot wound sustained by Michael in his right shoulder was not
fatal or mortal since the treatment period for his wound was short and he was
discharged from the hospital on the same day he was admitted therein.
Therefore, petitioner is liable only for the crime of attempted homicide as
regards Michael in Criminal Case No. U-9609.
With regard to the appreciation of the aggravating circumstance of use of an
unlicensed firearm, we agree with the trial court and the appellate court that
the same must be applied against petitioner in the instant case since the same
was alleged in the informations filed against him before the RTC and proven
during the trial. However, such must be considered as a special aggravating
circumstance, and not a generic aggravating circumstance.
Generic aggravating circumstances are those that generally apply to all
crimes such as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6,
9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of
increasing the penalty for the crime to its maximum period, but it cannot
increase the same to the next higher degree. It must always be alleged and
charged in the information, and must be proven during the trial in order to be
appreciated.60 Moreover, it can be offset by an ordinary mitigating
circumstance.
On the other hand, special aggravating circumstances are those which arise
under special conditions to increase the penalty for the offense to its
maximum period, but the same cannot increase the penalty to the next higher
degree. Examples are quasi-recidivism under Article 160 and complex crimes
under Article 48 of the Revised Penal Code. It does not change the character
of the offense charged.61 It must always be alleged and charged in the
information, and must be proven during the trial in order to be
appreciated.62 Moreover, it cannot be offset by an ordinary mitigating
circumstance.
It is clear from the foregoing that the meaning and effect of generic and
special aggravating circumstances are exactly the same except that in case of
generic aggravating, the same CAN be offset by an ordinary mitigating
circumstance whereas in the case of special aggravating circumstance, it
CANNOT be offset by an ordinary mitigating circumstance.
Aside from the aggravating circumstances abovementioned, there is also an
aggravating circumstance provided for under Presidential Decree No.
1866,63 as amended by Republic Act No. 8294,64 which is a special law. Its
pertinent provision states:
If homicide or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.
In interpreting the same provision, the trial court reasoned that such
provision is "silent as to whether it is generic or qualifying." 65 Thus, it ruled
that "when the law is silent, the same must be interpreted in favor of the
accused."66 Since a generic aggravating circumstance is more favorable to
petitioner compared to a qualifying aggravating circumstance, as the latter
changes the nature of the crime and increase the penalty thereof by degrees,
the trial court proceeded to declare that the use of an unlicensed firearm by
the petitioner is to be considered only as a generic aggravating
circumstance.67 This interpretation is erroneous since we already held in
several cases that with the passage of Republic Act. No. 8294 on 6 June
1997, the use of an unlicensed firearm in murder or homicide is now
considered as a SPECIAL aggravating circumstance and not a generic
aggravating circumstance.68 Republic Act No. 8294 applies to the instant case
since it took effect before the commission of the crimes in 21 April 1998.
Therefore, the use of an unlicensed firearm by the petitioner in the instant
case should be designated and appreciated as a SPECIAL aggravating
circumstance and not merely a generic aggravating circumstance.
As was previously established, a special aggravating circumstance cannot be
offset by an ordinary mitigating circumstance. Voluntary surrender of
petitioner in this case is merely an ordinary mitigating circumstance. Thus, it
cannot offset the special aggravating circumstance of use of unlicensed
firearm. In accordance with Article 64, paragraph 3 of the Revised Penal
Code, the penalty imposable on petitioner should be in its maximum period. 69
As regards the civil liability of petitioner, we deem it necessary to modify the
award of damages given by both courts.
In Criminal Case No. U-9610 for Homicide, we agree with both courts that
the proper amount of civil indemnity isP50,000.00, and that the proper
amount for moral damages is P50,000.00 pursuant to prevailing
jurisprudence.70However, based on the receipts for hospital, medicine, funeral
and burial expenses on record, and upon computation of the same, the proper
amount of actual damages should be P42,374.18, instead of P43,556.00.
Actual damages for loss of earning capacity cannot be awarded in this case
since there was no documentary evidence to substantiate the
same.71 Although there may be exceptions to this rule,72 none is availing in
the present case. Nevertheless, since loss was actually established in this
case, temperate damages in the amount of P25,000.00 may be awarded to the
heirs of Melton Ferrer. Under Article 2224 of the New Civil Code, temperate
or moderate damages may be recovered when the court finds that some
pecuniary loss was suffered but its amount cannot be proved with certainty.
Moreover, exemplary damages should be awarded in this case since the
presence of special aggravating circumstance of use of unlicensed firearm
was already established.73Based on prevailing jurisprudence, the award of
exemplary damages for homicide is P25,000.00.74
In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to
the award of actual damages and its corresponding amount since the same is
supported by documentary proof therein. The award of moral damages is also
consistent with prevailing jurisprudence. However, exemplary damages
should be awarded in this case since the presence of special aggravating
circumstance of use of unlicensed firearm was already established. Based on
prevailing jurisprudence, the award of exemplary damages for both the
attempted and frustrated homicide shall be P25,000.00 for each.
WHEREFORE, premises considered, the decision of the Court of Appeals
dated 30 September 2004 is herebyAFFIRMED with the following
MODIFICATIONS:
(1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime
of attempted homicide. The penalty imposable on the petitioner is prision
correccional under Article 51 of the Revised Penal Code. 75 There being a
special aggravating circumstance of the use of an unlicensed firearm and
applying the Indeterminate Sentence of Law, the penalty now becomes four
(4) years and two (2) months of arresto mayor as minimum period to six (6)
years of prision correccional as maximum period. As regards the civil
liability of petitioner, the latter is hereby ordered to pay Michael Ferrer
exemplary damages in the amount of P25,000.00 in addition to the actual
damages and moral damages awarded by the Court of Appeals.
(2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for
the frustrated homicide is prision mayor under Article 50 of the Revised
Penal Code.76 There being a special aggravating circumstance of the use of
an unlicensed firearm and applying the Indeterminate Sentence Law, the
penalty now becomes six (6) years of prision correccional as minimum
period to twelve (12) years of prision mayor as maximum period. As regards
the civil liability of petitioner, the latter is hereby ordered to pay Servillano
Ferrer exemplary damages in the amount of P25,000.00 in addition to the
actual damages and moral damages awarded by the Court of Appeals.

(3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the
homicide is reclusion temporalunder Article 249 of the Revised Penal
Code.77 There being a special aggravating circumstance of the use of an
unlicensed firearm and applying the Indeterminate Sentence Law, the penalty
now is twelve (12) years of prision mayor as minimum period to twenty (20)
years of reclusion temporal as maximum period. As regards the civil liability
of petitioner, the latter is hereby ordered to pay Melton Ferrer exemplary
damages in the amount ofP25,000.00 in addition to the actual damages and
moral damages awarded by the Court of Appeals. The actual damages
likewise awarded by the Court of Appeals is hereby reduced to P42,374.18.

SO ORDERED.

Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Callejo,

Sr., J.J., concur.