DECISION
VITUG, J.:
Before this Court, by way of automatic review, is the decision of the Regional Trial Court of
Mandaluyong City, Branch 214,[1] convicting Conde E. Rapisora of the complex crime of
"Forcible Abduction with Rape" and sentencing him to suffer the supreme penalty of death.
Rapisora was indicted in an information that read:
"That on or about the 5th day of August, 1997, in the City of Mandaluyong,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named
accused, while armed with a knife, and pretending to be a relative of the private
complainant and against the will of Irene Hermo y Cajipe and with lewd design, did,
then and there willfully, unlawfully and feloniously abduct and carry away said Irene
Hermo y Cajipe, a seventeen year old girl, while she was walking along Shaw
Boulevard, this City and thereafter forced her to ride in a taxi and brought her to a
Filipinas Walk Inn and while inside, accused with lewd design and at the same time,
poking a knife at her, hence, by means of force and intimidation, did, then and there
wilfully, unlawfully and feloniously have carnal knowledge with said Irene Hermo y
Cajipe, a minor, against her will and consent for several times."[2]
The accused entered a plea of "not guilty" to the charge. Evidence was thereupon adduced
by, respectively, the prosecution and the defense.
The trial court gave a resumé of the evidence given at the trial, starting with that submitted
by the prosecution.
"At about 11:30 a.m. of August 5, 1997, Irene Hermo y Cajipe, a 17 year old
household helper of Susana Dy, was walking along the corner of Pinagtipunan St. and
Shaw Boulevard, Mandaluyong City after coming from Aling Naty's store where she
bought vegetables, when Conde Rapisora y Estrella, the accused in this case,
approached and told her `you're here' (nandito ka pala) to which she replied `who are
you?' Conde Rapisora introduced himself that he is her Tito Andy. He told her that
she could not remember him anymore because she was still small when her mother
left her to his care. Few minutes later, Conde Rapisora called a taxicab then dragged
and forced Irene Hermo to board the same. She did not, however, resist because he
poked a knife on her side (pp. 10-11 TSN Jan. 20, 1998).
"They were seated at the rear passenger seat with Conde Rapisora seated on her right
side with his knife poked on her right side. He warned her to keep quiet. He also told
her that she had grown bigger and his wife, her Ate Karen, would be very happy to
see her since they will be going to their place (pp. 11-13 TSN, ibid).
"Irene Hermo noticed that they alighted in Sta Mesa near a motel. He instructed her
to hold his waist so that his wife Karen will be very happy. He brought her to a house
with a green painted gate and a store in front (p. 14 TSN, ibid).
"Reaching the store, the accused got the key inside. She waited for the accused and
after he had returned they went inside the house. Irene Hermo thought that it was his
house. They entered a room, which according to the accused is the room of his wife
Karen. While they were about to enter a room, the accused called up the name of
Karen, then he opened it and suddenly pushed Irene inside. He poked his knife at her
and told her not to shout and resist (pp. 15-16 TSN, ibid).
"Accused ordered her to remove her clothes but when she resisted, he undressed
her. He also removed his clothes and told her to lie in bed. He ordered her to spread
her legs which the victim obeyed. He forced his penis to enter her vagina but it could
not get in because she was moving (malikot). So he inserted his finger. He ordered
the victim to masturbate him and when his penis hardened, the accused rammed it into
her vagina (pp. 17-18 TSN, ibid).
"She recalled that the accused inserted his penis to her vagina six (6) times. The
accused then placed his hardened penis inside her mouth, licked her vagina, sucked
her breast and placed her tongue insider her ears. She was shouting but the accused
placed a towel on her mouth.
"Thereafter a roomboy knocked on the door and told the accused that it was already
time.
"The accused immediately put on his clothes and left the room leaving behind the
victim. She put on her clothes too and went out and hurriedly left the place. The
accused chased her and told her that she [would] take her home, but she declined his
offer. She [ran] and took a passenger jeep (pp. 23-24, TSN, ibid)."[3]
Rapisora did not deny that he was with Irene in the morning of 05 August 1997 and that the
two proceeded to and stayed awhile at the Filipinas Walk-in Motel. He claimed, however, that
private complainant had consented to it all. The trial court summed up Rapisora's version of the
case.
"The accused, who was a member of the Mandaluyong Fire Department since 1995
until August 5, 1997, x x x claimed that he first met the victim in the morning of
August 1, 1997 at Market Place Shopping Mall, Mandaluyong City which is infront of
Kalentong Fire Station where he was assigned. They chanced upon each other while
they were both viewing the still pictures displayed outside the moviehouse of the
shopping mall. Allegedly, the victim introduced herself to him as Jocelyn and a
cashier in a grocery in Shaw Boulevard. He gave his name as Andy Villanueva. They
had a beautiful conversation wherein the victim even kidded him that he looked like
actor Andy Poe (pp. 5-12 TSN March 18, 1998).
"They again met on August 3, 1997 at the same shopping mall at about 8:00 o'clock in
the morning. It was his day-off and the victim was there to buy something. The only
thing they talked about was that they agreed to see each other on August 5, 1997 in
front of that shopping mall (pp. 14-16 TSN, ibid).
"So, on August 5, 1997 about 10:00 in the morning, the accused was already standing
in front of the shopping mall waiting for the victim, who arrived past 10:00 in the
morning. The accused noticed that while the victim was approaching him, she was
looking for something in her pocket. He asked her what was that she was looking for,
and the victim told him that she lost her P300.00 in her pocket. She then suggested
that they looked for her money by going back to the route taken by her which was
from Kalentong to Shaw Boulevard to see if her money had dropped on the
ground. He alleged that while they were walking along Kalentong, the victim was
holding his hand and was not also looking for her lost money.
"Later, the victim told him if he can help her pay that missing money but the accused
asked her when is she going to pay him. The victim answered, later, and when he
asked what time, she merely kept quiet.
"They went back to the shopping mall, took a snack and watched a movie.
"Inside the moviehouse they sat beside each other. She leaned on his chest, kissed
and embraced each other. As he inserted his finger on her private parts her legs
spread and she embraced him tightly. She then uttered, `slowly only' (`dahan dahan
lang daw'). He then noticed that her hand was going down to his pants until she got
hold of his penis. She unzipped his pants, held his penis and asked him if she could
place it in her mouth (pp. 22-30 TSN, ibid).
"The accused told him that it could not be because of the chair (`hindi pwede kasi
nakaharang and silya') so he invited her to go somewhere else. It was the victim who
suggested that they go to a place in Sta. Mesa which is near the place where she
previously worked. She asked the accused if he had money and when the latter
answered in the affirmative they boarded a taxi and proceeded to Filipinas Walk-in
Motel.
"While they were inside the taxicab the victim reminded him of the P300.00 she will
borrow from him. So the accused took out his wallet and showed him his
money. While he was opening his wallet she saw his I.D. and she immediately
grabbed it. It was then that the victim knew his real name (pp. 31-35 TSN, ibid).
"They checked-in at the motel at about 1:00 in the afternoon. As soon as they entered
the room, the victim immediately took off her clothes because the accused told her to
take a bath first. While she was removing her panty the accused saw that she had her
menstruation. Since the comfort room was outside the room, the victim did not take a
bath anymore. Meanwhile, it was during this moment when the victim revealed her
name and worked (pp. 36-39 TSN, ibid).
"The accused refused to have sexual intercourse with the victim because of her
menstruation. So the victim instead placed herself on top of him, kissed his body,
held his penis and placed it inside her mouth. After he reached his climax, he
hurriedly went to the comfort room to wash himself (pp. 40-44 TSN, ibid).
"Thereafter, the victim put her clothes on and hurriedly left the room leaving the
accused behind."[4]
The trial court gave no weight to the narration of the accused, describing it as a “fantastic
fallacy”[5] and as having "merely showed his sexual perversity.”[6] Convicting the accused, the
trial court pronounced a death sentence on him.
"SO ORDERED."[7]
Accused-appellant, praying for an acquittal and a reversal of the judgment rendered by the
trial court, came up with the following assignment of errors:
"I. THE COURT A QUO ERRED IN GIVING CREDENCE TO THE INCREDIBLE AND
IMPLAUSIBLE TESTIMONY OF IRENE HERMO.
"II.THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT OF THE
CRIME OF FORCIBLE ABDUCTION WITH RAPE.
"III.THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-
APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND
REASONABLE DOUBT."[8]
The court a quo has accorded full credit to the testimony of Irene, "a simple and
unsophisticated girl," finding it to be a “straightforward, clear and x x x good account" of how
she has been "beastly attacked by the accused.”[9] The long standing rule, consistently upheld by
jurisprudential holdings, is that the assignment of values to the testimony of witnesses must aptly
be left to the trial court, it being considered to be in the best position to discharge that
function. Invariably, its findings on this issue are given the highest degree of respect and, absent
strong cogent reasons to warrant otherwise, will not ordinarily be disturbed on appeal.[10]
Appellant would urge the Court to ignore the testimony of complainant for her alleged
failure to call for help. In People vs. Akhtar,[11] similarly involving the crime of forcible
abduction with rape, the same contention was raised. This Court, rejecting the proposition made
by the alleged offender, held that -
“Complainant’s failure to ask for help when she was abducted, or to escape from
appellant’s house during her detention, should not be construed as a manifestation of
consent to the acts done by appellant. For her life was on the line. Against the armed
threats and physical abuses of appellant, she had no defense. Moreover, at a time of
grave peril, to shout could literally be to court disaster. Her silence was born out of
fear for her safety, to say the least, not a sign of approval.”[12]
Almost exactly could be said in the case at bar. Private complainant, Irene Hermo, testified:
"ATTY. FERRER:
Did you not think to call your employer Susana Dy?
"A I told him that I have to go home because I still have to cook, Sir.
"Q And even if you have an obligation to cook you still went with him?
"A He forced me, Sir.
"Q How did he force you?
"A He hold me and according to him we will go to their house, Sir.
"Q And you did not try to free yourself before you enter the taxi?
"A I was afraid of the knife, Sir.
"Q You did not make an outcry?
"A No, Sir.
"Q And you did not attempt to free yourself before you boarded the taxi?
"A I tried to resist but he drag me inside the taxi, Sir.
"Q How did you resist him before you boarded that taxi?
"A He was holding my arm, Sir.
"Q You did not forcibly free yourself?
"A No, Sir.
"Q Once you were inside the taxi did you not protested to the driver?
"A I was afraid of the knife that was pointed at my side, Sir.
"Q Conde was not saying any word while he was pointing the knife to your side inside the taxi?
"A He told me that once we reach their house Auntie Karen will be happy because I am already big,
Sir.
"Q Did you not complain to the driver of the alleged poking?
"A No, Sir. I was afraid he might harm me."[13]
When the incident happened, Irene, a frail and weak girl, was only sixteen years old and just an
elementary graduate. Rapisora, thirty-six years old and a government employee at the Bureau of
Fire Protection in Mandaluyong City, was described by the trial judge as being “husky, muscular
and stronger (in built) than the complainant." Asked during the cross-examination why she did
not try to flee when she was left alone for about two minutes at the entrance of the motel, Irene
could only utter, “wala akong maisip."[14]
This Court, in several cases, has observed that behavioral psychology would indicate that
most people, confronted by unusual events, react dissimilarly to like situations. [15] Intimidation,
more subjective than not, is peculiarly addressed to the mind of the person against whom it may
be employed, and its presence is basically incapable of being tested by any hard and fast
rule. Intimidation is normally best viewed in the light of the perception and judgment of the
victim at the time and occasion of the crime.[16]
For his second and third assigned errors, Rapisora argued that the complainant “did not offer
even the slightest resistance to the bestial desire of the accused-appellant”[17] and, to support this
claim, cited the fact that the medical report showed no findings of any external physical injury on
her body. The report on the medical examination conducted on the complainant indeed
concluded that there was “no evident sign of extragenital physical injury," albeit adding the
phrase, "healing hymenal laceration present.”[18] The medico-legal officer, Dr. Alvin A. David,
who conducted the examination explained that laceration due to sexual intercourse would, under
normal circumstances, be apparent only within the first 48 hours immediately following the
act. This finding would be consistent with the testimony of Irene that she was raped two days
prior to the time that she could undergo the physical examination.
Physical resistance, in any case, need not be established in rape cases when threats and
intimidation are employed and the victim ultimately gives up to the unwanted embrace of her
rapist.[19] Even when a man lays no hand on a woman, yet if by the array of physical forces he so
overpowers her mind that she does not resist or she ceases resistance through fear of greater
harm, the consummation of unlawful intercourse by the man would still be nothing less than
rape.[20] Rapisora cowed Irene into silence and submission from the time of abduction until the
consummation of the rape. While they were in the taxicab, Rapisora was poking a knife at her
side. Inside the motel room, accused-appellant once more threatened Irene with the weapon,
ordering her neither to resist nor to shout. When Irene made a loud cry because she could no
longer stand the pain of her assailant’s abuses, Rapisora unmindfully shoved a towel into her
mouth to mute her cries.
The way Irene acted after the incident would show consistency in her story. From the motel,
she immediately went to her employer and recounted the incident. Irene also told her aunt, who
later arrived, about what the accused had done to her. She, together with her aunt, then went
back to the Filipinas Walk-in Motel and inquired from the motel roomboys about the identity of
the accused. Irene and her aunt were informed that the man had been frequenting the
place. Forthwith, they reported the matter at the Mandaluyong City police station. The
following day, they proceeded to the National Bureau of Investigation for the medical
examination of Irene but since there was no physician available at the time, she was examined
only the following day. Four days later, Irene was informed that a man was arrested and
detained at the Western Police District jail for an incident similar to what had befallen her at the
Filipinas Walk-in Motel. Accompanied by her uncle, she immediately repaired to the police
station and there personally identified the accused to be the person who had abducted and raped
her.
The conduct of the woman immediately after an alleged sexual assault can be crucial in
establishing the truth or falsity of her charge.[21] For instance, the victim's instant willingness, as
well as courage, to face interrogation and medical examination could be a mute but eloquent
proof of the truth of her claim.[22]
The Court is satisfied that the trial court has correctly evaluated the evidence and been right
in finding the accused guilty beyond reasonable doubt. The crime committed, however, is not
the complex crime of "forcible abduction with rape." Forcible abduction is absorbed in the crime
of rape if the real objective of the accused is but to rape the victim,[23] a fact that is here clearly
evident given the circumstances of the case.
The information against the accused has charged him with multiple rape, at least six times
according to the trial court in its findings. Section 3, Rule 120, of the Rules of Court[24] provides
that “when two or more offenses are charged in a single complaint or information, and the
accused fails to object to it before trial, the court may convict the accused of as many offenses as
are charged and proved, and impose on him the penalty for each and every one of them x x x.”
Rapisora can thus be held responsible for as many rapes as might have been committed by him
which are duly proven at the trial.
The rapes have been committed with the use of a deadly weapon, a knife, for which
Republic Act 7659 prescribes the penalty of reclusion perpetua to death. There being neither
aggravating nor mitigating circumstance shown, appellant should only be sentenced to reclusion
perpetua, not death, for each of the six counts of rape.
Conformably with prevailing jurisprudence, an award of P50,000.00 moral damages should
be awarded to the victim for each of the offenses established in addition to the P50,000.00 civil
indemnity already ordered by the trial court.
WHEREFORE, the Court AFFIRMS the decision of the Regional Trial Court of
Mandaluyong City, Branch 214, in Criminal Case No. 115-H-MD finding accused-appellant
Conde Rapisora y Estrada guilty beyond reasonable doubt of six counts of rape but MODIFIES
the death penalty imposed by it on said accused-appellant by reducing it to reclusion
perpetua for each count and to pay the victim, Irene Hermo y Cajipe, the amount of P50,000.00,
by way of moral damages, in addition to the P50,000.00 civil indemnity awarded by the trial
court, for each count of rape, or a grand total of P600,000.00 damages.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez,
JJ., concur.
FIRST DIVISION
RESOLUTION
GANCAYCO, J.:
The issue posed in the motion for reconsideration filed by petitioner of the resolution
of this Court dated January 18, 1989 denying the herein petition is whether or not a
finding of guilt as an accessory to murder can stand in the light of the acquittal of the
alleged principal in a separate proceeding.
At about 7:00 o'clock in the evening of March 21, 1985, Roberto Tejada left their
house at Burgos Street, Poblacion, Balungao, Pangasinan to go to the house of
Isidro Salazar to watch television. At around 11:00 P.M., while Ernesto, the father of
Roberto, was resting, he heard two gunshots. Thereafter, he heard Roberto cry out
in a loud voice saying that he had been shot. He saw Roberto ten (10) meters away
so he switched on the lights of their house. Aside from Ernesto and his wife, his
children Ermalyn and Julius were also in the house. They went down to meet
Roberto who was crying and they called for help from the neighbors. The neighbor
responded by turning on their lights and the street lights and coming down from their
houses. After meeting Roberto, Ernesto and Julius saw Lito Vino and Jessie Salazar
riding a bicycle coming from the south. Vino was the one driving the bicycle while
Salazar was carrying an armalite. Upon reaching Ernesto's house, they stopped to
watch Roberto. Salazar pointed his armalite at Ernesto and his companions.
Thereafter, the two left.
Roberto was brought to the Sacred Heart Hospital of Urdaneta. PC/Col. Bernardo
Cacananta took his ante-mortemstatement. In the said statement which the victim
signed with his own blood, Jessie Salazar was Identified as his assailant.
Gunshot wound
CAUSE OF DEATH
Tension Hemathorax 1
Lito Vino and Sgt. Jesus Salazar were charged with murder in a complaint filed by
PC Sgt. Ernesto N. Ordono in the Municipal Trial Court of Balungao, Pangasinan.
However, on March 22, 1985, the municipal court indorsed the case of Salazar to
the Judge Advocate General's Office (JAGO) inasmuch as he was a member of the
military, while the case against Vino was given due course by the issuance of a
warrant for his arrest. Ultimately, the case was indorsed to the fiscal's office who
then filed an information charging Vino of the crime of murder in the Regional Trial
Court of Rosales, Pangasinan.
Upon arraignment, the accused Vino entered a plea of not guilty. Trial then
commenced with the presentation of evidence for the prosecution. Instead of
presenting evidence in his own behalf, the accused filed a motion to dismiss for
insufficiency of evidence to which the prosecutor filed an answer. On January 21,
1986, 2 a decision was rendered by the trial court finding Vino guilty as an accessory
to the crime of murder and imposing on him the indeterminate penalty of
imprisonment of 4 Years and 2 months of prision correccional as minimum to 8
years ofprision mayor as maximum. He was also ordered to indemnify the heirs of
the victim in the sum of P10,000.00 being a mere accessory to the crime and to pay
the costs.
The motion for reconsideration filed by the accused having been denied, he
interposed an appeal to the Court of Appeals. In due course, a Decision was
rendered affirming the judgment of the lower court. 3
Hence, the herein petition for review wherein the following grounds are invoked:
During the pendency of the appeal in the Court of Appeals, the case against Salazar
in the JAGO was remanded to the civil court as he was discharged from the military
service. He was later charged with murder in the same Regional Trial Court of
Rosales, Pangasinan in Criminal Case No. 2027-A. In a supplemental pleading
dated November 14, 1988, petitioner informed this Court that Jessie Salazar was
acquitted by the trial court in a decision that was rendered on August 29, 1988.
The respondents were required to comment on the petition. The comment was
submitted by the Solicitor General in behalf of respondents. On January 18, 1989,
the Court resolved to deny the petition for failure of petitioner to sufficiently show
that respondent court had committed any reversible error in its questioned judgment.
Hence, the present motion for reconsideration to which the respondents were again
required to comment. The required comment having been submitted, the motion is
now due for resolution.
The first issue that arises is that inasmuch as the petitioner was charged in the
information as a principal for the crime of murder, can he thereafter be convicted as
an accessory? The answer is in the affirmative.
This is not a case of a variance between the offense charged and the offense
proved or established by the evidence, and the offense as charged is included in or
necessarily includes the offense proved, in which case the defendant shall be
convicted of the offense proved included in that which is charged, or of the offense
charged included in that which is proved. 5
In the same light, this is not an instance where after trial has begun, it appears that
there was a mistake in charging the proper offense, and the defendant cannot be
convicted of the offense charged, or of any other offense necessarily included
therein, in which case the defendant must not be discharged if there appears to be a
good cause to detain him in custody, so that he can be charged and made to answer
for the proper offense. 6
In this case, the correct offense of murder was charged in the information. The
commission of the said crime was established by the evidence. There is no variance
as to the offense committed. The variance is in the participation or complicity of the
petitioner. While the petitioner was being held responsible as a principal in the
information, the evidence adduced, however, showed that his participation is merely
that of an accessory. The greater responsibility necessarily includes the lesser. An
accused can be validly convicted as an accomplice or accessory under an
information charging him as a principal.
At the onset, the prosecution should have charged the petitioner as an accessory
right then and there. The degree of responsibility of petitioner was apparent from the
evidence. At any rate, this lapse did not violate the substantial rights of petitioner.
The next issue that must be resolved is whether or not the trial of an accessory can
proceed without awaiting the result of the separate charge against the principal. The
answer is also in the affirmative. The corresponding responsibilities of the principal,
accomplice and accessory are distinct from each other. As long as the commission
of the offense can be duly established in evidence the determination of the liability of
the accomplice or accessory can proceed independently of that of the principal.
The third question is this-considering that the alleged principal in this case was
acquitted can the conviction of the petitioner as an accessory be maintained?
In United States vs. Villaluz and Palermo, 7 a case involving the crime of theft, this
Court ruled that notwithstanding the acquittal of the principal due to the exempting
circumstance of minority or insanity (Article 12, Revised Penal Code), the accessory
may nevertheless be convicted if the crime was in fact established.
Corollary to this is United States vs. Mendoza, 8 where this Court held in an arson
case that the acquittal of the principal must likewise result in the acquittal of the
accessory where it was shown that no crime was committed inasmuch as the fire
was the result of an accident. Hence, there was no basis for the conviction of the
accessory.
In the present case, the commission of the crime of murder and the responsibility of
the petitioner as an accessory was established. By the same token there is no doubt
that the commission of the same offense had been proven in the separate case
against Salazar who was charged as principal. However, he was acquitted on the
ground of reasonable doubt by the same judge who convicted Vino as an accessory.
The trial court held that the identity of the assailant was not clearly established. It
observed that only Julius Tejada identified Salazar carrying a rifle while riding on the
bicycle driven by Vino, which testimony is uncorroborated, and that two other
witnesses, Ernesto Tejada and Renato Parvian who were listed in the information,
who can corroborate the testimony of Julius Tejada, were not presented by the
prosecution.
The trial court also did not give due credit to the dying declaration of the victim
pinpointing Salazar as his assailant on the ground that it was not shown the victim
revealed the identity of Salazar to his father and brother who came to his aid
immediately after the shooting. The court a quo also deplored the failure of the
prosecution and law enforcement agencies to subject to ballistic examinations the
bullet slug recovered from the body of the victim and the two empty armalite bullet
empty shells recovered at the crime scene and to compare it with samples taken
from the service rifle of Salazar. Thus, the trial court made the following observation:
There appears to be a miscarriage of justice in this case due to the ineptitude of the law
enforcement agencies to gather material and important evidence and the seeming lack of
concern of the public prosecutor to direct the production of such evidence for the
successful prosecution of the case. 9
Hence, in said case, the acquittal of the accused Salazar is predicated on the failure
of the prosecution to adduce the quantum of evidence required to generate a
conviction as he was not positively identified as the person who was seen holding a
rifle escaping aboard the bicycle of Vino.
A similar situation may be cited. The accessory was seen driving a bicycle with an
unidentified person as passenger holding a carbine fleeing from the scene of the
crime immediately after the commission of the crime of murder. The commission of
the crime and the participation of the principal or assailant, although not identified,
was established. In such case, the Court holds that the accessory can be
prosecuted and held liable independently of the assailant.
We may visualize another situation as when the principal died or escaped before he
could be tried and sentenced. Should the accessory be acquitted thereby even if the
commission of the offense and the responsibility of the accused as an accessory
was duly proven? The answer is no, he should be held criminally liable as an
accessory.
Although in this case involving Vino the evidence tended to show that the assailant
was Salazar, as two witnesses saw him with a rifle aboard the bicycle driven by
Vino, in the separate trial of the case of Salazar, as above discussed, he was
acquitted as the trial court was not persuaded that he was positively identified to be
the man with the gun riding on the bicycle driven by Vino. In the trial of the case
against Vino, wherein he did not even adduce evidence in his defense, his liability as
such an accessory was established beyond reasonable doubt in that he assisted in
the escape of the assailant from the scene of the crime. The identity of the assailant
is of no material significance for the purpose of the prosecution of the accessory.
Even if the assailant can not be identified the responsibility of Vino as an accessory
is indubitable.
WHEREFORE, the motion for reconsideration is denied and this denial is FINAL.
SO ORDERED.
EN BANC
May the Sandiganbayan, after finding that a municipal treasurer charged with
malversation of public funds is not guilty thereof, nevertheless convict him, in the
same criminal case, for illegal use of public funds?
The petitioner, a former municipal treasurer of Porac, Pampanga, was charged with
malversation of public funds allegedly committed as follows:
The petitioner entered a plea of not guilty. During the pretrial conference, he
admitted that on September 29, 1980, as municipal treasurer of Porac, Pampanga,
he received from the Ministry of Public Works and Highways the amount of
P185,250 known as the fund for construction, rehabilitation, betterment and
improvement (CRBI) for the concreting of Barangay Jalung Road located in Porac,
Pampanga.
The prosecution presented six witnesses and tried to establish that the petitioner
misappropriated the fund for his personal use because while the fund was already
completely exhausted, the concreting of Barangay Jalung Road remained
unfinished.
In his defense, the petitioner accounted for the P185,250 fund as follows:
1. P126,095.59 was disbursed for materials delivered by the contractor under
Voucher Numbers 41-80-12-440 and 41-80-12-441 for P86,582.50 and P39,513.09
respectively.
2. P59,154.41 was used to pay, upon the insistence of the then Porac Mayor
Ceferino Lumanlan, the labor payrolls of the different barangays in the municipality.
But while the accused could be deemed to have fully accounted for the
amount in question, the fact sticks out from the evidence like a sore
thumb that he allowed the use of part of the funds for a purpose other
than what it was intended. The said amount of P185,250.00 was
specifically allotted for the concreting of the barangay Jalung road in
Porac, Pampanga. Instead of applying it fully to that particular project,
he gave P59,154.41 of it to the municipal mayor of Porac to pay the
labor payrolls of the different barangays of the municipality, resulting in
the non-completion of the project. He thereby violated the following
provision of Article 220 of the Revised Penal Code. (Rollo, pp. 48-49)
The petitioner filed a motion for reconsideration which was denied by the
Sandiganbayan, hence this petition for review. The petitioner raises the following
issues:
The petitioner argues that he cannot be convicted of a crime different and distinct
from that charged in the information.
The 1987 Constitution mandates that the accused, in all criminal prosecutions, shall
enjoy the right to be informed of the nature and cause of accusation against him.
(Article III, Section 14 [21) From this fundamental precept proceeds the rule that the
accused may be convicted only of the crime with which he is charged.
Is the decision of the Sandiganbayan convicting the petitioner of the crime of illegal
use of public funds justified by the rule on variance? Does the crime of malversation
of public funds include the crime of illegal use of public funds, or is the former
included in the latter?
As gleaned from the information, the petitioner, a public officer, was accused of
wilfully, unlawfully, feloniously and with abuse of confidence, taking, appropriating or
converting to his own personal use, public funds for which he was accountable. The
alleged acts constitute malversation of public funds punishable under Article 217 of
the Revised Penal Code, which reads:
(a) the offender is a public officer; (b) by reason of his duties he is accountable for
public funds and property; and (c) he appropriates, takes, or misappropriates, or
permits other persons to take such public funds or property, or otherwise is guilty of
misappropriation or malversation of such funds or property.
On the other hand, Article 220 of the Revised Penal Code, for which the petitioner
was convicted, reads:
Art. 220. Illegal use of public funds or property. — Any public officer
who shall apply any public fund or property under his administration to
any public use other than that for which such fund or property were
appropriated by law or ordinance shall suffer the penalty of prision
correccional in its minimum period or a fine ranging from one-half to the
total of the sum misapplied, if by reason of such misapplication, any
damage or embarrassment shall have resulted to the public service. In
either case, the offender shall also suffer the penalty of temporary
special disqualification.
(a) the offender is an accountable public officer; (b) he applies public funds or
property under his administration to some public use; and (c) the public use for
which the public funds or property were applied is different from the purpose for
which they were originally appropriated by law ordinance.
A comparison of the two articles reveals that their elements are entirely distinct and
different from the other. In malversation of public funds, the offender
misappropriates public funds for his own personal use or allows any other person to
take such public funds for the latter's personal use. In technical malversation, the
public officer applies public funds under his administration not for his or another's
personal use, but to a public use other than that for which the fund was appropriated
by law or ordinance.
Technical malversation is, therefore, not included in nor does it necessarily include
the crime of malversation of public funds charged in the information.
Since the acts constituting the crime of technical malversation were not alleged in
the information, and since technical malversation does not include, or is not included
in the crime of malversation of public funds, he cannot resultantly be convicted of
technical malversation.
The Sandiganbayan found that the petitioner had not taken, appropriated nor
converted the CRBI fund for his personal use and benefit. It, however, was of the
belief that based on the evidence given during trial, the petitioner was guilty of
technical malversation. What the respondent court should have done was to follow
the procedure laid down in Section 11, Rule 119 of the Rules on Criminal Procedure.
Sec. 11. When mistake has been made in charging the proper
offense — When it becomes manifest at any time before judgment, that
a mistake has been made in charging the proper offense, and the
accused cannot be convicted of the offense charged, or of any other
offense necessarily included therein, the accused shall not be
discharged, if there appears to be good cause to detain him. In such
case, the court shall commit the accused to answer for the proper
offense and dismiss the original case upon the filing of the proper
information.(12a)
The Sandiganbayan therefore erred in not ordering the filing of the proper
information against the petitioner, and in convicting him of technical malversation in
the original case for malversation of public funds.
Ordinarily, the Court's recourse would be to acquit the petitioner of the crime of
illegal use of public funds without prejudice, but subject to the laws on prescription,
to the filing of a new information for such offense.
Considering however that all the evidence given during the trial in the malversation
case is the same evidence that will be presented and evaluated to determine his
guilt or innocence in the technical malversation case in the event that one is filed
and in order to spare the petitioner from the rigors and harshness compounded by
another trial, not to mention the unnecessary burden on our overloaded judicial
system, the Court deems it best to pass upon the issue of whether or not the
petitioner indeed is guilty of illegal use of public funds.
The petitioner alleged that the amount of P59,154.41, which was actually intended
for the concreting of the Barangay Jalung Road, was used to defray the labor
payrolls of the different barangays of the municipality of Porac and presented
documents fully supporting the disbursement. This allegation was not rebutted by
the prosecution.
However, Article 220 of the Revised Penal Code provides that for technical
malversation to exist it is necessary that public funds or properties had been
diverted to any public use other than that provided for by law or
ordinance. (Emphasis supplied. See Palma Gil v. People of the Philippines, 177
SCRA 229 [1989])
7. Summary of the project (Exh. I-1 9). (TSN May 9, 1989, pp. 6-7).
(Rollo, pp. 38-39)
Lacsamana's testimony shows that the CRBI fund is a general fund, and the
utilization of this fund specifically for the concreting of the Barangay Jalung Road
was merely an internal arrangement between the Department of Public Works and
Highways and the barangay captain and was not particularly provided for by law or
ordinance. There is no dispute that the money was spent for a public purpose—
payment of the wages of laborers working on various projects in the municipality. It
is pertinent to note the high priority which laborers' wages enjoy as claims against
the employers' funds and resources. In the absence of a law or ordinance
appropriating the CRBI fund for the concreting of the Barangay Jalung Road, the
petitioner cannot be declared guilty of the crime of illegal use of public funds.
SO ORDERED.
VITUG, J.:
A criminal complaint for qualified seduction (of private complainant Imelda Caratao),
following a preliminary investigation, was filed (docketed Criminal Case No. 2560)
with the Municipal Trial Court of Obando, Bulacan, against herein petitioner
Apolinario Gonzales. The latter, upon arraignment, pleaded "not guilty" to the
charge. The presentation of evidence by the prosecution started in May 1983 and
was concluded in November 1988. Thereafter, the defense took its turn. When the
defense was about to rest its case, the prosecution filed a motion to instead commit
the accused to answer to a charge for rape since the evidence submitted indicated
that rape, not
qualified seduction, was evidently committed. Petitioner opposed the motion. On 17
January 1990, the trial court issued an order which, in part, read:
The Court having no jurisdiction to institute nor try the offense of rape,
cannot, and will not, assume the jurisdiction of the Public Prosecutor,
for it is their prerogative to file necessary complaint or information
against any accused, jurisdiction of which falls exclusively with the
Regional Trial Court.
Following the dismissal of Criminal Case No. 2560, the prosecution filed six (6)
separate informations for rape, alleged to have been committed on 15, 16, 17, 18,
19 and 20 November 1982, before different branches of the Regional Trial Court
(RTC) of Malolos, Bulacan. These cases were later consolidated (docketed Criminal
Cases No. 1858-M-90 to No. 1864-M-90, inclusive).
When arraigned, Gonzales pleaded "not guilty" to the charges. In the hearing of 01
July 1991, the prosecution presented its first witness, a brother of private
complainant. On 23 March 1992, the private complainant and her counsel not having
appeared, the public prosecutor requested a postponement of the hearing. Petitioner
did not object to the postponement. On 30 March 1992, the public prosecutor again
requested that the hearing be postponed on the same ground. This time, the
defense objected and moved for the dismissal of the cases, claiming that the delay
would violate petitioner's right to a speedy trial. The trial court issued an order, which
read:
SO ORDERED. 2
On the very same day, private counsel for private complainant filed a motion for the
reconsideration of the court's order, alleging that they (the complainant and private
counsel) "were already within the Court premises but complainant was afraid to
enter the courtroom in the absence of (her) counsel who was then attending a
hearing before another branch of (the) Court." On
15 June 1992, the trial court, finding the motion for reconsideration to be impressed
with merit, issued an order lifting and setting aside the 30 March 1992 order of
dismissal.
A petition for certiorari was filed by Gonzales with the Court of Appeals. On 12
February 1993, respondent appellate court issued its questioned decision which
dismissed the petition and affirmed the trial court's order of
15 June 1992.
Sec. 11. When mistake has been made in charging the proper offense.
— When it becomes manifest at any time before judgment, that a
mistake has been made in charging the proper offense, and the
accused cannot be convicted of the offense charged, or of any other
offense necessarily included therein, the accused shall not be
discharged, if there appears to be good cause to detain him. In such
case, the court shall commit the accused to answer for the proper
offense and dismiss the original case upon the filing of the proper
information.
The dismissal of the charge for qualified seduction is clearly sanctioned by the
above-quoted rule in order to pave the way for the filing of the proper offense for the
crime of rape. The accused cannot invoke double jeopardy; for that kind of jeopardy
to arise, the following requisites must be extant:
(1) The previous complaint or information or other formal charge is sufficient in form
and substance to sustain a conviction;
(3) The accused has been arraigned and has pleaded to the charge; and
(4) The accused is convicted or acquitted or the case is dismissed without his
express consent.
When all the above elements concur, a second prosecution for (a) the same offense,
or (b) an attempt to commit the said offense, or (c) a frustration of the said offense,
or (d) any offense which necessarily includes, or is necessarily included in, the first
offense charged, can be rightly barred.
Here, there is no question that the Municipal Trial Court did not have the requisite
jurisdiction to try the offense of rape, a crime that lies instead within the province of
the Regional Trial Court to take cognizance of. Moreover, the dismissal of Criminal
Case No. 2560 for qualified seduction by the Municipal Trial Court not only was
provisional but likewise with the express consent of the accused (herein petitioner).
Then, too, rape and qualified seduction are not identical offenses. The elements of
rape — (1) that the offender has had carnal knowledge of a woman; and (2) that
such act is accomplished (a) by using force or intimidation, or
(b) when the woman is deprived of reason or otherwise unconscious, or (c) when the
woman is under twelve (12) years of age — substantially differ from the elements of
qualified seduction. The letter requires (1) that the offended party is a virgin, which is
presumed if she is unmarried and of good reputation; (2) that she must be over
twelve (12) and under eighteen (18) years of age; (3) that the offender has sexual
intercourse with her; and (4) that there is abuse of authority, confidence or
relationship on the part of the offender. While the two felonies have one common
element, i.e., carnal knowledge of a woman, they significantly vary in all other
respects.
Contrary to the assertion of accused-petitioner, the case of People vs. Samillano (56
SCRA 573), did not hold that qualified seduction is necessarily included in rape;
what this Court has said is that one who is charged with rape may be found guilty of
qualified seduction when the "verified complaint for rape contains allegations which
aver the crime of seduction."
SO ORDERED.
THIRD DIVISION
[G.R. No. 116736. July 24, 1997]
DECISION
PANGANIBAN, J.:
A person who commits a felony is liable for the direct, natural and logical
consequences of his wrongful act even where the resulting crime is more
serious than that intended. Hence, an accused who originally intended to
conceal and to bury what he thought was the lifeless body of the victim can be
held liable as a principal, not simply as an accessory, where it is proven that
the said victim was actually alive but subsequently died as a direct result of
such concealment and burial. Nonetheless, in the present case, Appellant
Garcia can not be held liable as a principal because the prosecution failed to
allege such death through drowning in the Information. Neither may said
appellant be held liable as an accessory due to his relationship with the
principal killer, Appellant Ortega, who is his brother-in-law.
This case springs from the joint appeal interposed by Appellants Benjamin
Ortega, Jr. and Manuel Garcia from the Decision, dated February 9, 1994
[1]
large. After trial in due course, the court a quo promulgated the questioned
[6]
The Facts
Evidence for the Prosecution
Appellant Manuel Garcia testified that in the early morning of October 15,
1992, he and his wife, Maritess Garcia, brought their feverish daughter,
Marjorie, to the Polo Emergency Hospital. He left the hospital at seven o’
clock in the morning, went home, changed his clothes and went to
work. After office hours, he and Benjamin Ortega, Jr. passed by the canteen
[10]
at their place of work. After drinking beer, they left at eight o’ clock in the
evening and headed home. En route, they chanced on Diosdado Quitlong
alias Mac-mac and Andre Mar Masangkay, who invited them to join their own
drinking spree. Thereupon, Appellant Garcia’s wife came and asked him to
go home because their daughter was still sick. To alleviate his daughter’s
illness, he fetched his mother-in-law who performed a ritual called
“tawas.” After the ritual, he remained at home and attended to his sick
daughter. He then fell asleep but was awakened by police officers at six o’
clock in the morning of the following day.
Maritess Garcia substantially corroborated the testimony of her
husband. She however added two other participants in the drinking session
aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay,
namely, a Mang Serafin and Boyet Santos. [11]
clock in the evening, Masangkay left the drinking session. Thirty (30) minutes
after Masangkay left, he also left the drinking place to urinate. He went [13]
behind the house where he saw Masangkay peeping through the room of his
sister Raquel. He ignored Masangkay and continued urinating. After he was
[14]
through, Masangkay approached him and asked where his sister was. He
answered that he did not know. Without warning, Masangkay allegedly boxed
him in the mouth, an attack that induced bleeding and caused him to fall on
his back. When he was about to stand up, Masangkay drew a knife and
stabbed him, hitting him on the left arm, thereby immobilizing
him. Masangkay then gripped his neck with his left arm and threatened to kill
him. Unable to move, Ortega shouted for help. Quitlong came and, to avoid
being stabbed, grabbed Masangkay’s right hand which was holding the
knife. Quitlong was able to wrest the knife from Masangkay and, with it, he
stabbed Masangkay ten (10) times successively, in the left chest and in the
middle of the stomach. When the stabbing started, Ortega moved to the left
side of Masangkay to avoid being hit. Quitlong chased Masangkay who ran
[15]
towards the direction of the well. Thereafter, Ortega went home and treated
his injured left armpit and lips. Then, he slept.
When he woke up at six o’ clock the following morning, he saw police
officers in front of his house. Taking him with them, the lawmen proceeded to
the well. From the railroad tracks where he was asked to sit, he saw the
police officers lift the body of a dead person from the well. He came to know
the identity of the dead person only after the body was taken to the police
headquarters. [16]
The trial court explained its basis for appellants’ conviction as follows: [17]
“The Court is convinced that the concerted acts of accused Benjamin Ortega,
Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping
the victim Andre Mar Masangkay who was still alive and breathing inside the
deep well filled with water, head first and threw big stones/rocks inside the
well to cover the victim is a clear indication of the community of design to
finish/kill victim Andre Mar Masangkay. Wounded and unarmed victim
Andre Mar Masangkay was in no position to flee and/or defend himself
against the three malefactors. Conspiracy and the taking advantage of superior
strength were in attendance. The crime committed by the accused is Murder.
Concert of action at the moment of consummating the crime and the form and
manner in which assistance is rendered to the person inflicting the fatal wound
may determine complicity where it would not otherwise be evidence (People
vs. Yu, 80 SCRA 382 (1977)).
Every person criminally liable for a felony is also civilly liable. Accused
(m)ust reimburse the heirs of victim Andre Mar Masangkay the amount
of P35,000.00 for the funeral expenses of the deceased.”
The Issues
In their ten-page brief, appellants fault the trial court with the following: [18]
“I. The trial court erred in holding that there is conspiracy on the basis
of the prosecution’s evidence that at the time both accused and one
Romeo Ortega lifted the body of Andrew Masangkay from where he
succumbed due to stab wounds and brought and drop said body of
Andrew Masangkay to the well to commit murder;
II. The trial court erred in finding and holding that Andrew
Masangkay was still alive at the time his body was dropped in the
well;
III. The trial court erred in convicting Manuel Garcia and in not
acquitting the latter of the crime charged; and
IV. The trial court erred in not finding that if at all Benjamin Ortega Jr.
is guilty only of homicide alone.”
On the basis of the records and the arguments raised by the appellants and the
People, we believe that the question to be resolved could be simplified thus: What are
the criminal liabilities, if any, of Appellants Ortega and Garcia?
“The Court has listened intently to the narration of the accused and their
witnesses and the prosecution witnesses and has keenly observed their
behavior and demeanor on the witness stand and is convinced that the story of
the prosecution is the more believable version. Prosecution eyewitness
Diosdado Quitlong appeared and sounded credible and his credibility is
reinforced by the fact that he has no reason to testify falsely against the
accused. It was Diosdado Quitlong who reported the stabbing incident to the
police authorities. If Quitlong stabbed and killed the victim Masangkay, he
will keep away from the police authorities and will go in hiding. x x x”
Because the trial court had the opportunity to observe the witnesses’
demeanor and deportment on the stand as they rendered their testimonies, its
evaluation of the credibility of witnesses is entitled to the highest
respect. Therefore, unless the trial judge plainly overlooked certain facts of
substance and value which, if considered, might affect the result of the case,
his assessment of credibility must be respected. [20]
In the instant case, we have meticulously scoured the records and found
no reason to reverse the trial court’s assessment of the credibility of the
witnesses and their testimonies insofar as Appellant Ortega is
[21]
version of the assault was true, he should have immediately reported the
matter to the police authorities, if only out of gratitude to Quitlong who came to
his rescue. Likewise, it is difficult to believe that a man would just sleep after
someone was stabbed in his own backyard. Further, we deem it incredible
that Diosdado Quitlong would stab Masangkay ten (10) times successively,
completely ignoring Benjamin Ortega, Jr. who was grappling with
Masangkay. Also inconsistent with human experience is his narration that
Masangkay persisted in choking him instead of defending himself from the
alleged successive stabbing of Quitlong. The natural tendency of a person
[23]
Murder or Homicide?
Although treachery, evident premeditation and abuse of superior strength
were alleged in the information, the trial court found the presence only of
abuse of superior strength.
We disagree with the trial court’s finding. Abuse of superior strength
requires deliberate intent on the part of the accused to take advantage of such
superiority. It must be shown that the accused purposely used excessive
force that was manifestly out of proportion to the means available to the
victim’s defense. In this light, it is necessary to evaluate not only the physical
[24]
condition and weapon of the protagonists but also the various incidents of the
event. [25]
“ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have a drinking spree with
Andrew Masangkay and where you witnessed a stabbing incident?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in
the house of Mr. Benjamin Ortega, Sr., because the house of Benjamin Ortega Sr.
and the house of his son Benjamin Ortega, Jr. are near each other.
testimony as to how the attack was initiated. The accused and the victim were
already grappling when Quitlong arrived. Nothing in the foregoing testimony
and circumstances can be interpreted as abuse of superior strength. Hence,
Ortega is liable only for homicide, not murder.
Appellants argue that the finding of conspiracy by the trial court “is based
on mere assumption and conjecture x x x.” Allegedly, the medico-legal
[28]
finding that the large airway was “filled with muddy particles indicating that the
victim was alive when the victim inhaled the muddy particles” did not
necessarily mean that such muddy particles entered the body of the victim
while he was still alive. The Sinumpaang Salaysay of Quitlong stated,
“Nilubayan lang nang saksak nang mapatay na si Andrew ni Benjamin Ortega,
Jr.” Thus, the prosecution evidence shows Masangkay was already “dead”
when he was lifted and dumped into the well. Hence, Garcia could be held
liable only as an accessory. [29]
Appellant Garcia may have been unaware that the victim was still alive when
he assisted Ortega in throwing the body into the well, he is still liable for the
direct and natural consequence of his felonious act, even if the resulting
offense is worse than that intended.
True, Appellant Garcia merely assisted in concealing the body of the
victim. But the autopsy conducted by the NBI medico-legal officer showed
that the victim at that time was still alive, and that he died subsequently of
drowning. That drowning was the immediate cause of death was medically
[31]
demonstrated by the muddy particles found in the victim’s airway, lungs and
stomach. This is evident from the expert testimony given by the medico-legal
[32]
ATTY. ALTUNA:
“Q Will you please explain this in simple language the last portion of Exhibit N,
beginning with ‘tracheo-bronchial tree’, that is sentence immediately after
paragraph 10, 2.5 cms. Will you please explain this?
A The trancheo-bronchial tree is filled with muddy particles.
Q I ask you a question on this. Could the victim have possibly get this particular
material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy particles could be inhaled.
Q So, in short, you are telling or saying to us that if there is no inhaling or the taking
or receiving of muddy particles at that time, the person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial hemorrhages at the anterior
surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased amount of blood going to
the heart.
Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial hemorrhages.
Q What could have caused this injury of the lungs?
A This is due to asphyxia or the loss of blood.
Q Are you saying that the lungs have been filled with water or muddy particles?
A Yes, sir.
Q And, precisely, you are now testifying that due to stab wounds or asphyxia, the
lungs have been damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral organs, pale. What is this?
A The paleness of the brain and other visceral organs is due to loss of blood.
Q And, of course, loss of blood could be attributed to the stab wound which is
number 13?
A Yes, sir.
Q And the last one, under the particular point ‘hemothorax’?
A It indicates at the right side. There are around 1,400 cc of blood that accumulate
at the thoraxic cavity and this was admixed with granular materials?
Q And what cause the admixing with granular materials on said particular portion of
the body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct?
A It’s due to stab wounds those muddy particles which set-in thru the stab wounds.
Q So, because of the opening of the stab wounds, the muddy particles now came in,
in that particular portion of the body and caused admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly, the last two portions, will you please
explain the same?
A The hemoperitoneum there are 900 cc of blood that accumulated inside the
abdomen.
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles. Please explain the same?
A The victim could have taken these when he was submerged in water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir.” (Underscoring supplied)
Maritess, being his wife. Such relationship exempts Appellant Garcia from
[39]
expenses alleged to have been incurred, the Court can give credence only to
those that are supported by receipts and appear to have been genuinely
incurred in connection with the death of the victim. However, in line with
[41]
current jurisprudence, Appellant Ortega shall also indemnify the heirs of the
[42]
The penalty for homicide is reclusion temporal under Article 249 of the
Revised Penal Code, which is imposable in its medium period, absent any
aggravating or mitigating circumstance, as in the case of Appellant
Ortega. Because he is entitled to the benefits of the Indeterminate Sentence
Law, the minimum term shall be one degree lower, that is, prision mayor.
WHEREFORE, premises considered, the joint appeal
is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of
homicide and sentenced to ten (10) years of prision mayor medium, as
minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal medium, as maximum. Appellant Ortega, Jr. is also ORDERED to
pay the heirs of the victim P50,000.00 as indemnity and P31,790.00 as actual
damages. Appellant Manuel Garcia is ACQUITTED. His immediate release
from confinement is ORDERED unless he is detained for some other valid
cause.
SO ORDERED.
Narvasa C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.