EN BANC Bani, Pangasinan when she was suddenly awakened by a
heavy weight pressing on her body and found appellant
[G.R. Nos. 148939-40. February 13, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs. JOSEPH
ORILLA, appellant.
DECISION
CARPIO, J.:
The Case
Before this Court for automatic review is the
Decision[1] dated 7 May 2001 of the Regional Trial Court,
First Judicial Region, Branch 54, Alaminos City, Province of
Pangasinan. Remilyn Orilla, the 15-year old sister of
appellant Joseph Orilla (appellant), accused appellant of
raping her twice. The criminal cases were docketed as
Criminal Cases Nos. 3219-A and 3220-A. The trial court
found appellant guilty of only one crime of qualified rape
and imposed on him the death penalty in Criminal Case No.
3219-A. Instead of dismissing the second case, Criminal
Case No. 3220-A, the trial court considered it as a
qualifying circumstance for the purpose of imposing the
death penalty in Criminal Case No. 3219-A.
The Charge
The Amended Informations for Criminal Case Nos.
3219-A and 3220-A are identical. The allegations read:
That on or about the dawn of September 12, 1996 at Brgy.
Masidem, municipality of Bani, province of Pangasinan,
Philippines and within the jurisdiction of this Honorable
Court, the above-accused, by means of force or
intimidation, armed with a knife, did then and there willfully,
unlawfully and feloniously have sexual intercourse with
REMILYN R. ORILLA, younger sister of accused against
her will and consent, to her damage and prejudice.
CONTRARY to Article 335 of the Revised Penal Code.[2]
Arraignment and Plea
On 3 January 1997, appellant assisted by his
counsel de officio, pleaded not guilty to the two charges.[3]
The Trial
Version of the Prosecution
The prosecution presented three witnesses: (1)
Remilyn, the complainant and sister of the appellant, (2)
SPO1 Clarence de Vera, a member of the Philippine
National Police of Bani, Pangasinan, who entered in the
police blotter the complaint of Remilyn, and (3) Dr. Lynette
Valencerina-Caburnay (Dr. Valencerina-Caburnay), a
resident physician of the Western Pangasinan District
Hospital, who conducted the medico-legal examination of
Remilyn.
The prosecutions version of the rapes as summarized
by the Solicitor General is as follows:
On September 12, 1996, around 3:00 oclock in the
morning, fifteen-year old Remilyn Orilla was sound asleep
inside one of the rooms of their house located at Masidem,
1
Joseph Orilla on top of her. (p. 18, TSN, April 15, 1997)
Remilyn Orilla noticed that she was naked from waist down
(pp. 17-18, ibid). Appellant continuously pinned down
Remilyn Orillas body with his own. She struggled to free
herself from appellant but her efforts proved futile. (p. 7,
TSN, April 15, 1997)
Appellant held both hands of Remilyn Orilla with one hand
holding a knife with his other hand. He then forced Remilyn
Orillas legs apart and inserted his penis into her vagina.
Remilyn Orilla felt pain. She also felt some warm matter
enter her vagina (p. 8, ibid.). Appellant remained on top of
Remilyn Orilla and, after a few minutes, she again felt the
same substance enter her vagina (ibid.). With a knife
pointed at her, Remilyn Orilla was powerless. Appellant
warned her not to make a noise. Frightened, Remilyn Orilla
just kept silent. (pp. 8-9, 18-19, ibid.)
Around 9:00 oclock in the morning of that same day,
Remilyn Orilla reported to her sister, Evelyn Catabay, what
appellant did to her. Immediately, they went to the
Municipal Hall of Bani to report the incident. Unfortunately,
the investigator assigned that day was absent. (p. 22, ibid.)
On September 19, 1996, around 2:30 in the afternoon,
Remilyn Orilla arrived at the Bani Police Station, Bani,
Pangasinan and executed her sworn statement relative to
the incident in question. She recounted the incident to
SPO1 Clarence P. de Vera who entered the same in the
Police Blotter (p. 2, TSN, June 11, 1997).
Later, or around 3:30 in the afternoon, Remilyn Orilla and
her sister went to the Western Pangasinan District Hospital
in Alaminos, Pangasinan. Remilyn Orilla was examined by
Dr. Lynette D. Valencerina whose findings are contained in
the Medico-Legal Certificate dated September 20, 1996
(Exhibit A) which she issued:
MENSTRUAL HISTORY: Menarche at age 13 years old,
occurring monthly, of 3-7 days duration, consuming around
2 napkins per day not accompanied by hypoglycemia.
LMP August 9-14, 1996
PMP July 12-16, 1996
INTERNAL EXAMINATION: With old hymenal laceration at
3, 6 and 9 oclock position vaginal introitous admits 2 fingers
with ease, Cervix close, uterus small;
(-) adnexeal mass/tenderness
(+) whitish vaginal discharge
Pregnancy Test negative
Negative for the presence of spermatozoa
(p. 8, Record)
Accordingly, appellant was arrested. However, he escaped
while detained at the provincial jail. After a month of hiding,
appellant was re-arrested. (pp. 12-13, TSN, September 28,
1999).
On the other hand, Remilyn Orilla is now under the care of
the Department of Social Welfare and Development. (p. 12,
TSN, April 15, 1997).[4]
 Version of the Defense
The defense presented three witnesses: (1) appellant,
(2) Crispin Orilla (Crispin), brother of appellant and
Remilyn, and (3) Beverly Cabuburac (Beverly), sister of
appellant and Remilyn.
Appellant and Remilyn are siblings. Remilyn is the
youngest in a brood of nine. The parents of appellant and
Remilyn are already dead. Remilyn was then staying in a
house commonly owned by the siblings in Barangay
Masidem, Bani, Pangasinan. Adjacent to Remilyns house is
the house of appellant where he and his own family lived.
Appellant claimed that from 2 August 1996 to 14
September 1996, he was in Sitio Olo, Barangay Masidem,
Bani, Pangasinan rushing the work on the dikes of a
fishpond. He was not able to go home to his house in
Barangay Masidem on 12 September 1996, the date the
crimes charged allegedly occurred.
Appellants house in Barangay Masidem is five to six
meters away from the house of Remilyn. However, the
place where appellant was staying in Sitio Olo is two
kilometers away from Barangay Masidem. One can
negotiate the distance between Sitio Olo and Barangay
Masidem by walking. However, one must cross a river
before reaching Barangay Masidem. A motorboat service is
available to cross the river and the ride can last for an hour.
Crossing the river on foot will take about three hours.
Appellant worked in the fishpond of Lindel Onofre who
is married to another sister of appellant. At the time
appellant was working in the fishpond, his companion was
his brother, Reneboy Orilla (Reneboy). The persons left in
appellants house while he was in Sitio Olo were his wife,
five children and his wifes grandmother. When appellant
left Barangay Masidem on 2 August 1996 for Sitio Olo, the
persons who were with Remilyn in her house were Crispin,
Beverly and her three children.
Appellant described Remilyn as matampuhin or
emotional. Remilyn was always frowning and sometimes
she would be happy. When Remilyn would get irritable she
would just leave the house for weeks without telling
appellant or their other siblings where she was going.
Appellant claimed that he had a good relationship with
Remilyn although he would sometimes scold her because
she would leave the house without permission. Appellant
does not know why Remilyn accused him of rape. Appellant
assumed that it was because he often scolded Remilyn.
Crispin testified that on 11 September 1996, he and
his sister Beverly and her husband slept in the living room
of their house while Remilyn slept in the small room with
Beverlys daughter. The next day, 12 September 1996,
Crispin woke up around 5:00 a.m. and noticed that Remilyn
was still asleep. During that time, his brother Joseph was
working in Barangay Ulo, Bani, Pangasinan.
Beverly testified that on 11 September 1996, she was
in Masidem with her children and her siblings, Crispin,
Reneboy, and Remilyn. At 6:00 a.m. of the next day, she,
together with her husband and children, left for Manila. She
denied having any knowledge that her brother Joseph
raped their sister Remilyn.
The Trial Courts Judgment
The trial court ruled that Remilyn positively identified
appellant as the one who raped her. True, no electric light
or kerosene lamp lit the room where the rape took place.
However, since it was already 3:00 a.m., a ray of light from
2
the eastern horizon enabled Remilyn to recognize
appellant. When appellant threatened and ordered Remilyn
not to shout, or else he would kill her, Remilyn was able to
recognize appellants voice. The trial court concluded that
even if appellant attacked Remilyn during the darkest
portion of the night,[5] appellants voice alone could have
made it known to Remilyn that her attacker was appellant,
her own brother.
The trial court rejected appellants defense of alibi.
One can negotiate the distance between Sitio Olo and
Barangay Masidem by riding passenger jeepneys and
tricycles and by riding a motorboat to cross the river.
Appellant failed to demonstrate that it was physically
impossible for him to have access to the place where the
crime happened.
The trial court gave credence to Remilyns testimony
because her testimony was very natural and
convincing.[6] In contrast, the testimony of the defense
witnesses failed to convince the trial court. Defense witness
Crispins demeanor in court prompted the trial court to
remark that he appeared crafty, cunning, unfair and
unreliable.[7] Beverlys testimony failed to support appellants
alibi because she testified that she left Barangay Masidem
on 12 September 1996 and she learned of the rape only on
her return sometime in January of 1997.
The trial court held that the presence of old
lacerations at 3, 6 and 9 oclock vaginal positions indicates
that Remilyn had previous sexual experience contrary to
Remilyns claim that the rape was her first sexual
experience. The trial court nonetheless ruled that a woman
who is unchaste or impure could still be raped.
Thus, the trial court held appellant guilty of qualified
rape in Criminal Case No. 3219-A. The trial court ruled that
since Remilyn was only 15 years old at the time appellant
raped her, the death penalty must be imposed on
appellant, the victims brother. Appellant committed only
one count of rape because while appellant ejaculated twice
in Remilyns vagina, the first and second ejaculations
occurred during one single body connection.[8] The trial
court considered Criminal Case No. 3220-A involving the
second count of rape as a qualifying circumstance for the
purpose of imposing the death penalty in Criminal Case No.
3219-A.
The judgment of the trial court reads:
WHEREFORE, in consideration of the foregoing premises,
judgment is hereby rendered, finding the accused GUILTY
beyond reasonable doubt of the crime of RAPE in Criminal
Case No. 3219-A and considering that the offended party is
under 18 years of age, and the offender is the brother of
the victim (relative by consanguinity within the third civil
degree) the accused is therefore sentenced to suffer the
SUPREME PENALTY OF DEATH by lethal injection but in
the event that upon automatic review by the Honorable
Supreme Court, that the penalty of Death is not imposed
but that of Reclusion Perpetua, this Honorable Court
recommends that accused should not be granted pardon
within the period of thirty (30) years and that he is further
condemned to pay in favor of the offended party in the sum
of ONE HUNDRED THOUSAND PESOS (P100,000.00) as
civil indemnity.
That Criminal Case No. 3220-A is considered merely as a
qualifying circumstance in the imposition of the death
penalty, as the Court submits the view that there is only
one crime of rape committed although there were two
ejaculations done on the person of the offended party.
The Provincial Warden of the Province of Pangasinan at
Lingayen is ordered to commit the living body of the
accused to the National Penitentiary at Muntinlupa City
within a period of three (3) days from receipt of this
Decision considering that in the past the accused have (sic)
tendency to escape his Jailer.
IT IS SO ORDERED.[9]
The Issues
Appellant submits for our review the following
assignment of errors:
I that the horizon coming from the east enabled her to
THE TRIAL COURT GRAVELY ERRED IN FINDING THE
APPELLANT GUILTY OF THE CRIME CHARGED
DESPITE COMPLAINANTS DUBIOUS IDENTIFICATION
OF APPELLANT AS THE PERPETRATOR OF THE
ALLEGED RAPE.
II
THE TRIAL COURT GRAVELY ERRED IN
DISREGARDING APPELLANTS DEFENSE OF ALIBI
DESPITE COMPLAINANTS DOUBTFUL IDENTIFICATION
OF APPELLANT AS THE AUTHOR OF THE CRIME
CHARGED.
III
ASSUMING ARGUENDO THAT APPELLANT IS GUILTY,
THE TRIAL COURT GRAVELY ERRED IN CONSIDERING
CRIMINAL CASE NO. 3220-A AS A QUALIFYING
CIRCUMSTANCE IN THE IMPOSITION OF THE DEATH
PENALTY AGAINST THE APPELLANT IN CRIMINAL
CASE NO. 3219-A, SINCE THE CONSIDERATION OF
SUCH QUALIFYING CIRCUMSTANCE IS WITHOUT ANY
LEGAL BASIS.
IV
ASSUMING ARGUENDO, THAT APPELLANT IS GUILTY,
THE TRIAL COURT GRAVELY ERRED IN IMPOSING ON
HIM THE DEATH PENALTY, DESPITE THE FACT THAT
THE INFROMATION NEVER ALLEGED THE
QUALIFYING CIRCUMSTANCE OF COMPLAINANTS
AGE, AND THE EXACT DEGREE OF CONSANGUINITY
ANENT THE QUALIFYING CIRCUMSTANCE OF
RELATIONSHIP.[10]
The Courts Ruling
Appellant is guilty of rape as charged in Criminal
Case No. 3219-A but the proper penalty is reclusion
perpetua, not death. Since appellant committed only one
count of rape, Criminal Case No. 3220-A must be
dismissed.
Appellant insists that it was impossible for Remilyn to
have identified the person who raped her because the
room where the crime took place was pitch black, as it had
no window and no source of light. Appellant asks the Court
to take judicial notice of the fact that on 12 September
1996, a Thursday, the approximate time of sunrise in the
Philippines was at 5:45 a.m., or a good two hours and forty-
five minutes from 3:00 a.m. Appellant argues that if the
rape took place at 3:00 a.m., then there could have been
no early morning sunlight to aid Remilyn in identifying
appellant.
3
We are not persuaded. Crispin, the brother of Remilyn
and appellant and a witness for the defense, testified that
the wall of the house where the rape happened was made
of buri[11]and the flooring of the house was made of splitted
(sic) bamboo.[12] Buri is a leaf that is dried and woven
together to form panels used as walls in the construction of
houses. A panel of buriis not compact as it has small holes
in it allowing light to filter through the woven material. The
slats on the floor and the elevation of the floor from the
ground by two feet[13] also make it possible for light to pass
through the floor.
While the approximate time of sunrise in the
Philippines on 12 September 1996 was at 5:45 a.m. and
not at 3:00 a.m., what is controlling is Remilyns declaration
identify appellant. Remilyn categorically declared that there
was a little light, sir, that is why I recognized
him.[14] Remilyns declaration that there was a little light is
consistent with her statement that the room was not fully
illuminated but the amount of light that sneaked through her
room was sufficient to enable her to recognize her own
brother.
The time mentioned by Remilyn, that is 3:00 a.m., is
at most an estimate. We must bear in mind that appellant
roused Remilyn from sleep when he forced himself on her.
Remilyn could not have known the exact time as appellants
act abruptly and rudely awakened her. Remilyns estimate
of the time while not precise tends to strengthen the
impression that her testimony is unrehearsed. Moreover, no
one expects rape victims to remember with precision every
detail of the crime. A mis-estimation of time is too
immaterial to discredit the testimony of a witness especially
where time is not an essential element or has no
substantial bearing on the fact of the commission of the
offense.[15] What is decisive in a rape charge is the
complainants positive identification of the accused as the
malefactor.[16]
Appellant insists that the trial court erred in declaring
that Remilyn identified him through his voice. Appellant
maintains that Remilyn was not able to identify him at all.
Appellants contention is without basis. Remilyns testimony
is as follows:
Q: And during the time that the accused was on
top of you, what did you do, if any?
A: I cannot move and fight because he
threatened me not to shout, sir.
Q: And what was the word of the accused when
he threatened you?
A: He told me not to shout and move and
according to him he will kill me, sir.
PROS. RABINA:
Q: And because of those threatened words of
the accused you mean to inform the
Honorable Court that you did not shout for
help?
A: No, sir, because I was afraid.[17]
Based on the foregoing testimony, there was nothing
to prevent the trial court from properly concluding that
Remilyn identified appellant through voice recognition. A
persons voice is an acceptable means of identification
where there is proof that the witness and the accused knew
each other personally and closely for a number of
years.[18] Appellant is no stranger to Remilyn for she had
known him with much familiarity. Appellant is Remilyns own
brother. Thus, when appellant threatened Remilyn not to
shout and move, or else he would kill her, the trial court
logically inferred that Remilyn recognized appellant through
his voice.
We have thoroughly examined the transcript of the
testimonies of the witnesses and we agree with the trial
courts assessment of the credibility of the witnesses. The
trial court was meticulous in judging the witnesses
credibility. The trial court even took note of the witnesses
demeanor in court. Unless appellant can show that the trial
court overlooked, misunderstood, or misapplied some fact
or circumstance of weight or substance that would
otherwise affect the result of the case, the Court will not
disturb the trial courts findings on appeal.[19] None of the
grounds to overturn the trial courts ruling on the witnesses
credibility is present in this case.
Remilyns narration of how appellant ravished her
meets the test of credibility. When a woman says that the
accused raped her, in effect, she says all that is necessary
to show that the accused raped her, and if her testimony
meets the test of credibility, the court may convict the
accused on that basis.[20]
Remilyn had no reason to fabricate the serious
charges against her own brother whose life could hang in
the balance in case he is found guilty of qualified rape. With
the filing of the criminal cases, Remilyn had to face the ire
of her other siblings, two of whom have even testified
against her. Remilyn is now under the custody of the
Department of Social Welfare and Development in
Lingayen, Pangasinan. An incestuous sexual assault is a
psycho-social deviance that inflicts a stigma, not only on
the victim but also on their whole family. [21] Even in ordinary
rape cases, the sole testimony of a credible victim may seal
the fate of the rapist.[22]
Appellant failed to establish convincingly his alibi. The
distance between Sitio Olo, where appellant claimed he
was, and Barangay Masidem, where the rape happened, is
only two kilometers. Appellant himself admitted that public
vehicles were available to transport passengers from Sitio
Olo to Barangay Masidem, including a motorboat that could
ferry the passengers to Barrio Masidem in just about an
hour. It was not physically impossible for appellant to have
gone to Barangay Masidem on the day he committed the
rape. None of his witnesses could even corroborate his
alibi.
Appellants alibi and denial cannot prevail over
Remilyns positive and categorical testimony. Alibi is an
inherently weak defense and courts must receive it with
caution because one can easily fabricate an alibi.[23] For
alibi to prosper, it is not enough that the accused show he
was at some other place at the time of the commission of
the crime.[24] The accused must prove by clear and
convincing evidence that it was impossible for him to be at
the scene of the crime at the time of its
commission.[25] Appellant failed to do this. Moreover,
appellants escape from detention does not help his cause
since escape is evidence of guilt.[26]
We must correct the trial courts opinion that prior to
the rape, Remilyn already had past sexual experience
because her hymen had healed lacerations. The trial court
reached this conclusion despite Remilyns assertion that
she had no sexual experience at all before the rape and
despite the absence of such a finding by Dr. Valencerina-
Caburnay, the medico- legal who examined Remilyn.
Dr. Valencerina-Caburnay conducted Remilyns
physical examination on 19 September 1996 or seven days
after the rape. Dr. Valencerina-Caburnay was not certain
what exactly caused the healed lacerations. Dr.
4
Valencerina-Caburnay testified that an object, probably a
penis, could have caused the lacerations, or even a fall
could have caused them.[27]Dr.Valencerina-Caburnay did
not attribute the healed lacerations to a sexual experience
prior to the rape.
The presence of old lacerations per se does not imply
that the lacerations were the result of previous sexual
experience and not by the rape.[28] Thus, the trial court had
no basis in ruling that Remilyn was no longer a virgin when
appellant raped her. The trial court must be careful not to
cast aspersions on the reputation of a woman, especially
so when she is still a minor.
The absence of fresh lacerations in Remilyns hymen
does not prove that appellant did not rape her. A freshly
broken hymen is not an essential element of rape and
healed lacerations do not negate rape.[29] In addition, a
medical examination and a medical certificate are merely
corroborative and are not indispensable to the prosecution
of a rape case.[30] The credible disclosure of a minor that
the accused raped her is the most important proof of the
sexual abuse.[31]
The gravamen of the crime of rape is carnal
knowledge of a woman against her will.[32] Remilyns
straightforward narration on how appellant forcibly ravished
her proves beyond reasonable doubt that appellant is guilty
of the crime of rape as charged in Criminal Case No. 3219-
A. However, appellant committed only one count of rape.
Remilyns own account of the rape proves this, thus:
Q: And after accused pointed you (sic) knife, can
you tell the Court what else did he do after
that?
A: He had sexual intercourse with me to (sic)
times at the same time, sir.
COURT:
Q: Two times at the same time?
WITNESS
A: Yes, sir.
PROS. RABINA:
Q: And when he had sexual intercourse with you
for two times as you said on that same
day, what was your feeling when he
inserted his penis into your vagina?
A: It is painful, sir, and I felt some warm matter
to my vagina.
Q: And can you tell the Honorable Court how
long was the accused stayed (sic) on top of
you before he ejaculated into your vagina?
A: About thirty (30) minutes, sir.
xxx
Q: Now, you said that the accused was on top of
you for at least a period of thirty minutes,
do you mean to inform the Honorable
Court that the two sexual intercourse that
he allegedly committed on your person, he
stayed on top of you for a period of thirty
minutes, is that what you mean?
Q: And for the first time that he ejaculated a
warm substance inside your vagina, did
accused get out on top of you?
A: No, sir.
 COURT:
Q: You mean to tell the Court that it is a case
of double shoot in the sense that after
ejaculating he is still on top of you but
then after that he did it again while he
was still on top of your body?
WITNESS:
A: Yes, sir.[33]
Remilyn testified that appellants penis penetrated her
genitalia. At that point, appellant had already consummated
the rape. The mere introduction of the penis into the labia
majora of the victims genitalia engenders the crime of
rape.[34] Hence, it is the touching or entry of the penis into
the labia majora or the labia minora of the pudendum of the
victims genitalia that consummates rape.[35]
Appellant ejaculated twice during the time that he
consummated the rape. Appellant did not withdraw his
penis to insert it again into the vagina or to touch the labia
majora or the labia minora when he ejaculated the second
time. It is not the number of times that appellant ejaculated
but the penetration or touching that determines the
consummation of the sexual act.[36]Thus, appellant
committed only one count of rape.
The trial court erred when it did not dismiss outright
Criminal Case No. 3220-A and instead considered it as a
qualifying circumstance for the purpose of imposing the
death penalty in Criminal Case No. 3219-A. In short, the
trial court considered the second ejaculation by the
accused as a qualifying circumstance to raise the penalty to
death. This has no basis in law.
Article 335[37] of the Revised Penal Code as amended
by Section 11 of Republic Act No. 7659[38] (RA 7659) was
the law then applicable at the time of the rape. RA 7659
provides for the penalty of reclusion perpetua for the carnal
knowledge of a woman procured through force or
intimidation and without any other attendant circumstance.
The death penalty is imposed if the victim is under eighteen
years of age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity within
the third civil degree, or the common-law spouse of the
parent of the victim. When the information specifically
alleges the twin qualifying circumstances of relationship
and minority of the victim, and the prosecution proves the
same in court, the imposable penalty is no longer reclusion
perpetua but death.[39]
The trial court convicted appellant of qualified rape in
Criminal Case No. 3219-A because appellant is Remilyns
brother and she was a minor being only 15 years old at the
time that appellant raped her. A reading of the Amended
Information, however, does not justify the elevation of the
crime of simple rape to qualified rape.
The prosecution went through the trouble of
amending the Information to allege that Remilyn is the
younger sister of appellant to emphasize the qualified
nature of the rape. However, the Amended Information did
not allege Remilyns minor age. The prosecutions failure to
allege specifically Remilyns minor age prevents the
transformation of the crime to its qualified form.
The facts stated in the body of the information
determine the crime of which the accused stands charged
and for which he must be tried.[40] The information must
allege every element of the offense to enable the accused
to prepare properly for his defense.[41] The law assumes
that the accused has no independent knowledge of the
facts that constitute the offense.[42] Since the Amended
Information failed to inform appellant that the prosecution
5
was accusing him of qualified rape, the court can convict
appellant only for simple rape and the proper penalty
is reclusion perpetua and not death.
The Solicitor General concedes that the trial court
erred in imposing the death penalty based on the twin
circumstances of relationship and minority considering that
the Amended Information failed to allege specifically
Remilyns age. What justifies the imposition of the death
penalty, the Solicitor General argues, is the fact that
appellant used a knife in committing the rape and appellant
perpetrated the rape against his own sister. According to
the Solicitor General, Article 335 as amended by RA 7659
provides that the use of a deadly weapon in the
commission of rape results in the imposition of the penalty
of reclusion perpetua to death. Applying Article 63 of the
Revised Penal Code, the presence of an aggravating
circumstance warrants the imposition of the higher penalty
of death. The Solicitor General points out that relationship
in this case is an aggravating circumstance based on
Article 15[43] of the Revised Penal Code as applied
in People v. Baldino.[44]
Appellant on the other hand argues that the allegation
in the Amended Information that he was armed with a knife
does not comply with Sections 8 and 9 of Rule 110 of the
2000 Revised Rules of Criminal Procedure. The allegation
in the Amended Information that the accused was armed
with a knife is not in any way equivalent to use of a deadly
weapon. The knife could simply be a butter knife, a
harmless knife. Appellant opines that the Amended
Information should have stated that accused was armed
with a deadly knife, which is a deadly weapon.
We have held in several cases that the allegation
armed with a knife is sufficient to inform the accused of the
nature of the accusation against him.[45] The prosecution
also proved during the trial appellants use of a deadly
weapon. Remilyn testified that she was not able to shout
because appellant pointed an eight-inch kitchen knife at her
throat.[46]
We, however, do not agree with the Solicitor Generals
opinion that relationship should be appreciated as an
aggravating circumstance for the purpose of imposing the
death penalty. People v. Baldino, the case invoked by the
Solicitor General, appreciated relationship as an
aggravating circumstance but only for the purpose of
assessing exemplary damages against the accused and
not for the purpose of imposing the death penalty. Two
recent cases, People v. Sagarino[47] and People v.
Umbaa,[48] squarely address the issue raised by the
Solicitor General.
In People v. Sagarino[49] and People v.
Umbaa,[50] the information specifically alleged the use of a
deadly weapon and the prosecution proved the same. The
information also specifically alleged relationship between
the accused and the victim, and the prosecution proved the
same: son and mother in People v. Sagarino, and father
and daughter in People v. Umbaa. However, these two
cases did not impose the death penalty. People v.
Umbaa repeated our explanation in People v. Sagarino.
We quote this pertinent portion in People v. Umbaa:
We agree with appellant that People vs. Sagarino finds
application in the case at bar. We there stated:
We now come to the propriety of the penalties imposed on
appellant. Section 11 of Republic Act 7659, which
amended article 335 of the Revised Penal Code, imposes
the penalty of reclusion perpetua when the rape was
committed with force and intimidation. But the imposable
penalty becomes reclusion perpetua to death whenever the
rape is committed with the use of a deadly weapon. Such is
the situation in Criminal Case Nos. 98-551 and 98-552
because the use of a knife or a bladed weapon by
appellant in the consummation of the two rapes has been
alleged and proved.
However, we are unable to sustain the death penalty
imposed on appellant in both cases. As provided in Section
8 of Rule 110 of the Rules of Criminal Procedure, effective
December 1, 2000, but applicable to these cases now, the
complaint or information must not only state the designation
of the offense given by statute and aver the acts or
omissions constituting the offense, but also specify its
qualifying and aggravating circumstances. But here the
informations against appellant in both cases show no
specification of circumstances that aggravate the offenses
charged. Note that the close relationship between the
victim and the offender (mother and son) is alleged, but
nothing is stated in the informations concerning pertinent
circumstances (such as disregard of the filial respect due
the victim by reason of her age, sex and rank) that could
aggravate the crimes and justify imposing the death
sentence. Thus, absent any aggravating
circumstance specifically alleged and proved in the two
rape cases, the penalty imposable on appellant for each
offense is not death but only the lesser penalty of reclusion
perpetua.
Article 266-B of the Revised Penal Code states the specific
aggravating/qualifying circumstances. Other than the use of
a deadly weapon, which is already taken into account to
raise the penalty to reclusion perpetua to death, not one of
these circumstances was alleged or proved in the case at
bar. Hence, the penalty imposable is only reclusion
perpetua. (Emphasis ours)
The circumstances pertinent to the relationship
mentioned in People v. Sagarino and People v.
Umbaa must be alleged in the information and duly proven
in the trial. In the present case, the Amended Information
did not allege the circumstances pertinent to the
relationship of appellant and Remilyn and the prosecution
did not prove these circumstances during the trial.
The circumstances pertinent to the relationship cited
in People v. Sagarino and People v. Umbaa are
aggravating circumstances listed in paragraph 3 of Article
14 of the Revised Penal Code. Article 14 of the Revised
Penal Code enumerates the aggravating circumstances.
Unlike mitigating circumstances under Article 13 of the
Revised Penal Code, Article 14 does not include
circumstances similar in nature or analogous to those
mentioned in paragraphs 1 to 21 of Article 14. The term
aggravating circumstances is strictly construed, not only
because what is involved is a criminal statute, but also
because its application could result in the imposition of the
death penalty. The list of aggravating circumstances in
Article 14 of the Revised Penal Code is thus
exclusive[51] for the purpose of raising a crime to its
qualified form.
Article 14 does not include relationship as an
aggravating circumstance. Relationship is an alternative
circumstance under Article 15 of the Revised Penal Code:
Art. 15. Their concept. --Alternative circumstances are
those which must be taken into consideration as
aggravating or mitigating according to the nature and
effects of the crime and other conditions attending its
commission. They are relationship, intoxication, and degree
of instruction and education of the offender.
6
The alternative circumstance of relationship shall be taken
into consideration when the offended party is the spouse,
ascendant, descendant, legitimate, natural, or adopted
brother or sister, or relative by affinity in the same degree of
the offender.
Alternative circumstances are those which must be
taken into consideration as aggravating or mitigating
according to the nature and effects of the crime and other
conditions attending its commission. Based on a strict
interpretation, alternative circumstances are thus not
aggravating circumstances per se.
The Revised Penal Code is silent as to when
relationship is mitigating and when it is
aggravating.[52] Jurisprudence considers relationship as an
aggravating circumstance in crimes against
chastity.[53] However, rape is no longer a crime against
chastity for it is now classified as a crime against
persons.[54] The determination of whether an alternative
circumstance is aggravating or not to warrant the death
penalty cannot be left on a case-by-case basis. The law
must declare unequivocally an attendant circumstance as
qualifying to warrant the imposition of the death penalty.
The Constitution expressly provides that the death penalty
may only be imposed for crimes defined as heinous by
Congress.[55] Any attendant circumstance that qualifies a
crime as heinous must be expressly so prescribed by
Congress.
When the accused commits rape with the use of a
deadly weapon, the penalty is not death but the range of
two indivisible penalties of reclusion perpetua to death. To
determine the proper penalty, we apply Article 63 of the
Revised Penal Code. It provides that:
ART. 63. Rules for the application of indivisible penalties. In
all cases in which the law prescribes a single indivisible
penalty, it shall be applied by the courts regardless of any
mitigating or aggravating circumstances that may have
attended the commission of the deed.
In all cases in which the law prescribes a penalty
composed of two indivisible penalties, the following rules
shall be observed in the application thereof:
1. When in the commission of the deed there is
present only one aggravating
circumstance, the greater penalty shall
be applied.
xxx
Article 63 states that the greater penalty, which is
death, will be applied when in the commission of rape there
is present one aggravating circumstance. We hold that the
aggravating circumstance that is sufficient to warrant the
imposition of the graver penalty of death must be that
specifically enumerated in Article 14 of the Revised Penal
Code. Since it is only relationship that is alleged and
proven in this case, and it is not an aggravating
circumstance per se, the proper penalty is the lower penalty
of reclusion perpetua.
Even for the purpose of awarding exemplary
damages, there was lingering doubt whether the alternative
circumstance of relationship should be considered an
aggravating circumstance to justify such an award. People
v. Catubig[56] settled the lingering doubt in this manner:
The attendance of aggravating circumstances in the
perpetration of the crime serves to increase the penalty (the
criminal liability aspect), as well as to justify an award of
exemplary or corrective damages (the civil liability aspect),
moored on the greater perversity of the offender manifested
in the commission of the felony such as may be shown by
(1) the motivating power itself, (2) the place of commission,
(3) the means and ways employed, (4) the time, or (5) the
personal circumstances of the offender or the offended
party or both. There are various types of aggravating
circumstances, among them, the ordinary and the
qualifying. Relationship is an alternative circumstance
under Article 15 of the Revised Penal Code.
Art. 15. Their concept. --Alternative circumstances are
those which must be taken into consideration as
aggravating or mitigating according to the nature and
effects of the crime and other conditions attending its
commission. They are relationship, intoxication, and degree
of instruction and education of the offender.
The alternative circumstance of relationship shall be taken
into consideration when the offended party is the spouse,
ascendant, descendant, legitimate, natural, or adopted
brother or sister, or relative by affinity in the same degree of
the offender.
As a rule, relationship is held to be aggravating in crimes
against chastity, such as rape and acts of lasciviousness,
whether the offender is a higher or a lower degree relative
of the offended party.
Under Section 11 of Republic Act No. 7659, amending
Article 335 of the Revised Penal Code, the death penalty is
to be imposed in rape cases when the victim is under
eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity
or affinity within the third civil degree, or the common-law
spouse of the parent of the victim. The Court has since held
that the circumstances enumerated by the amendatory law
are to be regarded as special qualifying (aggravating)
circumstances. Somehow doubts linger on whether
relationship may then be considered to warrant an award
for exemplary damages where it is used to qualify rape as a
heinous crime, thereby becoming an element thereof, as
would subject the offender to the penalty of death.
Heretofore, the Court has not categorically laid down a
specific rule, preferring instead to treat the issue on a case
to case basis.
In People vs. Fundano, People vs. Ramos, People vs.
Medina, People vs. Dimapilis, People vs. Calayca, People
vs. Tabion, People vs. Bayona, People vs. Bayya, and
People vs. Nuez, along with still other cases, the Court has
almost invariably appreciated relationship as an ordinary
aggravating circumstance in simple rape and thereby
imposed exemplary damages upon the offender whether or
not the offense has been committed prior to or after the
effectivity of Republic Act No. 7659. Exceptionally, as in
People vs. Decena, People vs. Perez, and People vs.
Ambray, the Court has denied the award of exemplary
damages following the effectivity of that law. In qualified
rape cases, such as in People vs. Magdato, People vs.
Arizapa, and People vs. Alicante, the Court decreed the
payment of exemplary damages to the offended party but it
did not so do as in People vs. Alba, People vs. Mengote,
and People vs. Maglente.
It may be time for the Court to abandon its pro hac vice
stance and provide, for the guidance of the bar and the
bench, a kind of standard on the matter.
7
Also known as punitive or vindictive damages, exemplary
or corrective damages are intended to serve as a deterrent
to serious wrong doings, and as a vindication of undue
sufferings and wanton invasion of the rights of an injured or
a punishment for those guilty of outrageous conduct. These
terms are generally, but not always, used interchangeably.
In common law, there is preference in the use of exemplary
damages when the award is to account for injury to feelings
and for the sense of indignity and humiliation suffered by a
person as a result of an injury that has been maliciously
and wantonly inflicted, the theory being that there should
be compensation for the hurt caused by the highly
reprehensible conduct of the defendant - associated with
such circumstances as willfulness, wantonness, malice,
gross negligence or recklessness, oppression, insult or
fraud or gross fraud- that intensifies the injury. The terms
punitive or vindictive damages are often used to refer to
those species of damages that may be awarded against a
person to punish him for his outrageous conduct. In either
case, these damages are intended in good measure to
deter the wrongdoer and others like him from similar
conduct in the future.
The term aggravating circumstances used by the Civil
Code, the law not having specified otherwise, is to be
understood in its broad or generic sense. The commission
of an offense has a two-pronged effect, one on the public
as it breaches the social order and the other upon the
private victim as it causes personal sufferings, each of
which is addressed by, respectively, the prescription of
heavier punishment for the accused and by an award of
additional damages to the victim. The increase of the
penalty or a shift to a graver felony underscores the
exacerbation of the offense by the attendance of
aggravating circumstances, whether ordinary or qualifying,
in its commission. Unlike the criminal liability which is
basically a State concern, the award of damages, however,
is likewise, if not primarily, intended for the offended party
who suffers thereby. It would make little sense for an award
of exemplary damages to be due the private offended party
when the aggravating circumstance is ordinary but to be
withheld when it is qualifying. Withal, the ordinary or
qualifying nature of an aggravating circumstance is a
distinction that should only be of consequence to the
criminal, rather than to the civil, liability of the offender.
In fine, relative to the civil aspect of the case, an
aggravating circumstance, whether ordinary or qualifying,
should entitle the offended party to an award of exemplary
damages within the unbridled meaning of Article 2230 of
the Civil Code. (Emphasis supplied)
In People v. Catubig, we held that the alternative
circumstance of relationship serves as basis for an award
of exemplary damages because the term aggravating
circumstances must be understood in its broad or generic
sense. However, this interpretation is only applicable to
the civil aspect, not the criminal aspect of rape, which
involves the imposition of the proper penalty. When the
penalty to be imposed on the accused is teetering
between reclusion perpetua and death, the term
aggravating circumstance in Article 63 of the Revised Penal
Code must be understood in the strictest sense. The
aggravating circumstance that would spell the difference
between life and death for the accused must be that
specifically listed in Article 14 of the Revised Penal Code.
Death is an irrevocable penalty. Thus, the rule on
strict interpretation of criminal statutes applies with greater
force when the law defines the offense as a heinous crime
punishable by death.
 However, we resort to the strict interpretation of the Davide, Jr., C.J., Panganiban, Quisumbing, Ynares-
term aggravating circumstance only for the purpose of Santiago, Sandoval-Gutierrez, Austria-Martinez, Carpio-
imposing the death penalty. When the penalty to be Morales, Azcuna, and Tinga, JJ., concur.
imposed is a range of penalties where the maximum Puno, and Vitug, JJ., in the result.
penalty is death and the appreciation of an aggravating Corona, J., joins the dissent of J. Callejo, Sr.
circumstance would call for the imposition of the maximum Callejo, Sr., J., see dissenting opinion.
penalty, which is death, the term aggravating circumstance
must be strictly construed. The aggravating circumstance
sufficient to justify the imposition of the death penalty must
not only be duly alleged and proven it must be one of those
enumerated in Article 14 of the Revised Penal Code or that
specified by law. In all other cases where the maximum
penalty is not death, the term aggravating circumstance
must be interpreted in its broad or generic sense so as to
include the alternative circumstances under Article 15 of
the Revised Penal Code.

We cannot consider dwelling as a generic aggravating

circumstance because the Amended Information did not
allege dwelling. The 2000 Revised Rules of Criminal
Procedure, which applies retroactively in this case, now
explicitly mandates that the information must state in
ordinary and concise language the qualifying and
aggravating circumstances.[57] When the law or rules
specify certain circumstances that can aggravate an
offense or qualify an offense to warrant a greater penalty,
the information must allege such circumstances and the
prosecution must prove the same to justify the imposition of
the increased penalty.[58]

Relationship in this case serves to justify the award of

exemplary damages to Remilyn of P25,000.[59] Remilyn is
also entitled to P50,000 moral damages and P50,000 civil
indemnity. Case law requires the automatic award of moral
damages to a rape victim without need of proof because
from the nature of the crime it can be assumed that she has
suffered moral injuries entitling her to such award. [60] Such
award is separate and distinct from civil indemnity, which
case law also automatically awards upon proof of the
commission of the crime by the offender.[61]

The trial court was so revolted by the perversity of

appellants crime that it was moved to include this proposal
in the dispositive portion of its decision:

xxx in the event that upon automatic review by the

Honorable Supreme Court, that the penalty of Death is not
imposed but that of Reclusion Perpetua, this Honorable
Court recommends that accused should not be granted
pardon within the period of thirty (30) years.

Incestuous rape is indeed reprehensible. It deserves

our full condemnation. However, the recommendation by
the trial court is improper.[62] It is the Presidents prerogative
whether or not to grant a pardon subject to the limitations
imposed by the Constitution.[63]

WHEREFORE, the Decision of the Regional Trial

Court, First Judicial Region, Branch 54, Alaminos City,
Pangasinan, is AFFIRMED insofar as it finds appellant
Joseph Orilla GUILTY of one count of rape in Criminal
Case No. 3219-A with the MODIFICATION that the death
sentence imposed is reduced to reclusion perpetua, and
the amount of civil indemnity is reduced toP50,000. In
addition, appellant is further ordered to pay Remilyn
Orilla P50,000 moral damages and P25,000 exemplary
damages. Criminal Case No. 3220-A is dismissed. The
provision recommending the disqualification of appellant
from executive clemency is deleted. Costs de oficio.

SO ORDERED.

8
 FIRST DIVISION
PO3 BENITO SOMBILON, JR.,
Petitioner,
- versus -
PEOPLE OF THE PHILIPPINES,
Respondent.
x-----------------------------------------------------------------------------------
-------x
DECISION
LEONARDO-DE CASTRO, J.:
This resolves the petition for review which seeks
to annul and set aside the following rulings of the Court of
Appeals (CA) in C.A. C.R. No. 27729: a) the
Decision[1]dated July 28, 2005 which affirmed with
modification the decision[2] dated May 13, 2003 of the
Regional Trial Court of Davao City (RTC), convicting
petitioner of acts of lasciviousness; and b) the
Resolution[3] dated September 22, 2006 denying
petitioners Motion for Reconsideration of the aforesaid
Decision.
The facts found during trial, as succinctly stated
by the CA, are as follows:
The facts found during the trial
reveal that on or about August 15, 1998,
AAA, a fifteen (15)-year old minor, was
investigated by Appellant at the Calinan
Police Station, Davao City in connection
with a complaint for Theft filed by a
certain Aileen Dagoc.
AAA alleged that Appellant, in
conducting the investigation, took her
inside a room and locked it. She testified
that the room had no window but had a
cot, a table, and a clothesline where
some clothes were hanged. She claimed
that Appellant pointed a gun at her, with
the end of the barrel touching her
forehead and pushed her with it, causing
her head to violently bang against the
wall, and asked her: Did you steal the
necklace? She answered that she did
not. Appellant then took an electric wire
from a drawer and inserted its male plug
to a socket. She was ordered to place
her two hands on top of the table where
her fingers were electrocuted with the
end of the wire. She was again asked the
same question, which she kept
answering in the negative. Subsequently,
she was asked: Dalaga ka na ba? (Are
you a woman now?), and was told: I am
single too. Simultaneously, she was
touched all over her body including her
breasts, her belly, and her private
G.R. No. parts. She was also kissed on her
175528 cheek. She struggled to resist the sexual
advances but Appellant prevailed. She
Present: claimed that they were inside the room
for more than one (1) hour.
PUNO, C.J.,
Chairperson, Thereafter, they went out of the
CARPIO, room where Appellant announced to P03
CORONA, Danilo Mendez and Aileen Dagoc that
LEONARDO-DE she had already admitted having stolen
CASTRO, and the necklace. Pale, AAA was trembling
BERSAMIN, JJ. and crying; her hair disheveled, her dress
wet. She also had bruises on her
forehead.
Promulgated:
The police officers allowed AAA and her mother
September 30, to go home on the condition that they would pay the value
2009 of the necklace. Because of AAAs condition, AAAs mother
brought her daughter to the Medical Clinic of St.
Luke where AAA was examined by Dr. Manuel Garcia,
Sr.[4] Dr. Garcia gave AAA a tranquilizer to calm down the
latter who was trembling and incoherent.[5] At first, AAA
could not answer the doctor when she was asked what
happened to her. Later, upon regaining her composure,
she revealed that she was electrocuted and sexually
molested by petitioner.[6] The Medical Certificate[7] issued
by Dr. Garcia disclosed the following injuries:
1. Slight contusion over occiput region.
2. Slight contusion over center area of
forehead.
3. Multiple slight contusions of fingers of
bilateral hands.
4. Multiple slight contusions of bilateral
breast areas.
5. Slight body tremors.
Diagnosis: Slight Physical Injuries
In an Information[8] dated August 23, 1999,
petitioner was charged with the crime of Acts of
Lasciviousness committed as follows:
The undersigned accuses the
above-named accused of the crime of
Acts of Lasciviousness, under Art. 336,
in relation to Art. 344 of the Revised
Penal Code, upon the instance of the
complainant AAA, who is 15 years old,
whose affidavit is hereto attached to form
part of this Information. The crime is
committed as follows:
That on or about August 14,
1998, in the City of Davao, Philippines,
and within the jurisdiction of this
Honorable Court, the above-mentioned
accused, motivated by lewd design,
willfully, unlawfully, and feloniously upon
the person of AAA, by then and there
embracing, mashing the breast, and
touching the private part, against her will.
CONTRARY TO LAW.
Upon arraignment, petitioner pleaded not
guilty. Trial ensued thereafter.
On May 13, 2003, after trial on the merits, the
RTC rendered a decision finding petitioner guilty of acts of
9
lasciviousness with the aggravating circumstance of
petitioners taking advantage of his public position and
sentenced him to six (6) months of arresto mayor, as
minimum, to five (5) years, four (4) months and twenty-one
(21) days of prision correccional, as maximum. The
dispositive portion of the Decision reads:
For the foregoing judgment is
hereby rendered, finding accused P03
Benito Sombilon, GUILTY beyond
reasonable doubt of the crime of Acts of
Lasciviousness, under Article 366 of the
Revised Penal Code, and is hereby
sentenced to suffer imprisonment under
the Indeterminate Sentence Law from
Six (6) months of Arresto Mayor, as
minimum to Five (5) years, Four (4)
months and Twenty-one (21) days of
Prision Correccional, as maximum and
directed to pay private complainant AAA
the following:
a.) by way of moral
Damages, the amount
of Ten Thousand
Pesos
(PhP10,000.00); and
b.) by way of
Exemplary Damages,
the amount of ten
Thousand Pesos
(Php10,000.00).[9]
From the above decision, petitioner interposed an
appeal to the CA, which was docketed as CA-G.R. CV No.
40419.
On July 28, 2005, the CA rendered the herein
challenged Decision affirming with modification the RTCs
judgment of conviction. Appreciating the aggravating
circumstance of taking advantage of public position which
was adequately established during the trial, the CA
increased the maximum penalty imposed against petitioner
to its maximum period of six years of prision
correccional. The dispositive portion of the Decision reads:
WHEREFORE, the Decision of
the Regional Trial Court, Br.
8, Davao City in Criminal Case No. 43,
810-99 is
hereby AFFIRMED with MODIFICATION
. Appellant P03 Benito Sombilon, as
found guilty beyond reasonable doubt of
the crime of acts of lasciviousness,
defined and penalized under article 336
of the Revised Penal Code, is hereby
sentenced to suffer the indeterminate
penalty of 6 months of arresto mayor as
minimum, to 6 years of prision
correccional, as maximum. Appellant is
likewise ordered to pay the victim, AAA,
the amount of Php10,000.00 as moral
damages and another Php10,000.00 as
exemplary damages.
With costs.
SO ORDERED.[10]
Thus, petitioner filed the instant petition, with the
following allegations:
I themselves and the environmental
10
THE HONORABLE COURT OF
APPEALS ERRED IN AFFIRMING THE
TRIAL COURT THAT THE ACCUSED IS
GUILTY OF THE CRIME CHARGED
BEYOND REASONABLE DOUBT;
II
ASSUMING BUT NOT ADMITTING,
THE HONORABLE COURT OF
APPEALS ERRED IN AFFIRMING THE
APPRECIATION OF THE
AGGRAVATING CIRCUMSTANCE OF
TAKING ADVANTAGE OF HIS PUBLIC
POSITION FOR FAILURE TO ALLEGE
IN THE INFORMATION;
III
THE HONORABLE COURT OF
APPEALS ERRED IN AFFIRMING THE
AWARD OF DAMAGES.[11]
Petitioner contends that the CA erred in affirming
his conviction for acts of lasciviousness. Even as he admits
having merely touched the victim, petitioner argues that the
act of touching did not constitute lewdness. At most, he
could only be convicted of unjust vexation. Petitioner
likewise asserts that while the victim was being touched,
the latter tried to cover her body with her arms. Lastly
petitioner posits that the police station does not favor the
perpetration of the crime of acts of lasciviousness.
Petitioners contention deserves scant
consideration.
The crime of acts of lasciviousness as punished
under Article 336 of the Revised Penal Code provides:
ART. 336. Acts of
lasciviousness.- Any person who shall
commit any act of lasciviousness upon
other persons of either sex, under any of
the circumstances mentioned in the
preceding article, shall be punished
by prision correccional.
For an accused to be convicted of acts of
lasciviousness under the foregoing provision, the
prosecution is burdened to prove the confluence of the
following essential elements: (1) that the offender commits
any act of lasciviousness or lewdness; and (2) that it is
done under any of the following circumstances: (a) by
using force or intimidation; (b) when the offended woman is
deprived of reason or otherwise unconscious; or (c) when
the offended party is under twelve (12) years of age.[12]
In the case of Amployo v. People,[13] the Court
expounded on the definition of the term lewd, thus:
The term lewd is commonly
defined as something indecent or
obscene; it is characterized by or
intended to excite crude sexual desire.
That an accused is entertaining a lewd or
unchaste design is necessarily a mental
process the existence of which can be
inferred by overt acts carrying out such
intention, i.e., by conduct that can only be
interpreted as lewd or lascivious. The
presence or absence of lewd designs is
inferred from the nature of the acts
circumstances. What is or what is not
 lewd conduct, by its very nature, cannot breasts intense enough to cause multiple slight contusions
be pigeonholed into a precise of bilateral breast areas.
definition. As early as U.S. v. Gomez we
had already lamented that As aptly observed by the CA, petitioner employed
It would be force and intimidation against AAA:
somewhat difficult to
lay down any rule Moreover, appellant employed
specifically establishing force and intimidation when he
just what conduct committed these acts on AAA. In fact, as
makes one amenable found by the trial court, appellant pointed
to the provisions of a gun at the forehead of AAA as
article 439 of the Penal evidenced by the bruises on her
Code.What constitutes forehead. Further, the medical Certificate
lewd or lascivious shows that AAA suffered slight physical
conduct must be injuries which include multiple slight
determined from the contusion of bilateral breast areas which
circumstances of each supports AAAs claim.[15]
case. It may be quite
easy to determine in a In People v. Victor,[16] the Court held that in cases
particular case that of acts of lasciviousness, it is not necessary
certain acts are lewd that intimidation be irresistible. It being sufficient that some
and lascivious, and it compulsion equivalent to intimidation annuls or subdues
may be extremely the free exercise of the will of the offended party. Here, the
difficult in another case victim was locked inside a windowless room together with
to say just where the her aggressor who poked a gun at her forehead. Even a
line of demarcation lies grown man would be paralyzed with fear if threatened at
between such conduct gunpoint, what more the hapless victim who was only 15
and the amorous years old when she was subjected to such atrocity.
advances of an ardent
lover. Petitioners assertion that the locus criminis i.e.,
the police station makes it unlikely for him to commit the
Undoubtedly, petitioner committed acts which fall crime of acts of lasciviousness is specious. The presence
within the above described lascivious conduct. It cannot be of other policemen on duty and of the victims mother
viewed as mere unjust vexation as petitioner would have outside the room where the incident took place does not
the Court do. The intention of petitioner was intended render commission of the offense impossible. It has been
neither to merely annoy or irritate the victim nor to force shown that there was a room in the precinct which, except
her to confess the theft. He could have easily achieved that for two doors which could be locked, was totally
when he electrocuted the latter. Petitioner intended to enclosed.[17] During the commission of the acts of
gratify his sexual desires. lasciviousness, petitioner and AAA were the only persons
inside the room. Lust, as we have often held, is no
As found by the RTC and affirmed by the CA, respecter of either place or time.[18]
petitioners acts of kissing the victim, fondling her breasts
and touching her private parts constitute lascivious conduct As to the appreciation of the aggravating
intended to quench his salacious desire. Petitioners lewd circumstance of taking advantage of public position,
intent was betrayed when he asked AAA, Dalaga ka na petitioner points out that said circumstance was not alleged
ba? as a prelude to his lustful advances on the victim, and in the information. The Solicitor General shares the same
thereafter conveyed to her that I am single too. We quote view.
with approval the CAs ratiocination:
Sections 8 and 9 of Rule 110 of the Revised
Undeniably, appellant Rules of Criminal Procedure, which took effect on
committed lewd acts against AAA. Lewd December 1, 2000, provide:
is defined as obscene, lustful, indecent,
and lecherous. It signifies that form of Sec. 8. Designation of the offense. The
immorality which has relation to moral complaint or information shall state the
impurity; or that which is carried on a designation of the offense given by the
wanton manner. The evidence shows statute, aver the acts or omissions
that appellant committed lewd acts constituting the offense, and specify its
against AAA when he touched her all qualifying and aggravating
over her body which includes mashing circumstances. If there is no designation
her breasts, touching her private parts, of the offense, reference shall be made
and kissing her on the cheek. These to the section or subsection of the statute
acts were clearly done with lewd punishing it.
designs as appellant even previously
asked AAA, as if it was a prelude for Sec. 9. Cause of the accusations. The
things to come, Dalaga ka na ba? and acts or omissions complained of as
thereafter conveyed to her that he is constituting the offense and the
single too.[14] qualifying and aggravating
circumstances must be stated in ordinary
The fact that the victim tried to cover her body and concise language and not
with her arms does not negate petitioners lascivious necessarily in the language used in the
conduct. Petitioner succeeded in fondling the victims statute but in terms sufficient to enable a
person of common understanding to
11
 know what offense is being charged as
well as its qualifying and aggravating
circumstances and for the court to
pronounce judgment.
Clearly, it is now a requirement that the
aggravating as well as the qualifying circumstances be
expressly and specifically alleged in the complaint or
information.Otherwise, they cannot be considered by the
trial court in its judgment, even, if they are subsequently
proved during trial.[19] A reading of the Information shows
that there was no allegation of any aggravating
circumstance.
In People v. Buayaban,[20] the crime was
committed and the Information was filed in 1990. Still, the
Court gave the 2000 Rules of Criminal Procedure
retroactive application since it benefited the accused and
disregarded the generic aggravating circumstance of band
because it was not alleged in the Information. The Court
explained, viz:
Section 8 simply provides that
the information or complaint must state
the designation of the offense given by
the statute and specify its qualifying and
generic aggravating circumstances. With
regard to Section 9, we held in People
vs. Nerio Suela that the use of the word
must in said Section 9 indicates that the
requirement is mandatory and therefore,
the failure to comply with sec. 9, Rule
110, means that generic aggravating
circumstances, although proven at the
trial, cannot be appreciated against the
accused if such circumstances are not
stated in the information.
In this case, we cannot properly
appreciate the ordinary aggravating
circumstance of band in the commission
of the crime since there was no allegation
in the information that more than three
armed malefactors acted together in the
commission of the crime.
Here, the crime was committed in 1998, the
generic aggravating circumstance of taking advantage of
public position was not alleged in the information. As such,
it cannot be appreciated as an aggravating
circumstance. Consequently, the penalty imposed must be
modified.
Section 1 of the Indeterminate Sentence
Law[21] (ISL) states that (i)n imposing a prison sentence for
an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall
be that which, in view of the attending circumstances,
could be properly imposed under the rules of the said
Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for
the offense. Under Article 366 of the Revised Penal Code,
the penalty for acts of lasciviousness is prision
correccional. Since no aggravating or mitigating
circumstance attended the commission of the offense in
this case, the penalty should be applied in its medium
period, the duration of which is two (2) years, four (4)
months and one (1) day to four (4) years and two months,
as maximum. The minimum shall be within the range of the
penalty next lower in degree which is arresto mayor, with
12
the duration of one (1) month and one (1) day to six (6)
months.
Applying the ISL, the proper penalty would be
imprisonment of six (6) months of arresto mayor as
minimum to four (4) years and two (2) months of prision
correccionalas maximum.[22]
As to the damages awarded, Article 2230 of the
Civil Code provides that in criminal offenses, exemplary
damages as part of the civil liability may be imposed when
the crime was committed with one or more aggravating
circumstances. Since the generic aggravating
circumstance of taking advantage of public position was
not alleged in the Information against petitioner it cannot
be appreciated in the imposition of the penalty. But as
regards the award of exemplary damages, in the case
of People v. Catubig,[23] the Court declined retroactive
application of the 2000 Rules of Criminal Procedure, to wit:
The retroactive application of
procedural rules, nevertheless, cannot
adversely affect the rights of the private
offended party that have become vested
prior to the effectivity of said rules.Thus,
in the case at bar, although relationship
has not been alleged in the information,
the offense having been committed,
however, prior to the effectivity of the
new rules, the civil liability already
incurred by appellant remains unaffected
thereby.
Thus, in accordance with the foregoing
pronouncement, the Court affirms the CAs award of
exemplary damages to the victim in the amount
of P10,000.00.
With regard to the awarded moral damages in the
amount of P10,000.00, the same should be increased
to P30,000.00. In People v. Solmoro[24] we declared that
upon a finding of guilt of the accused for acts of
lasciviousness, the amount of P30,000.00 as moral
damages may be further awarded to the victim in the same
way that moral damages are awarded to victims of rape
even without need of proof because it is assumed that they
suffered moral injury. Considering the immeasurable pain
and anguish that the victim had to suffer in the hands of
the petitioner; the trauma that she had to endure even after
the incident; and the sexual perversity of petitioner, who is
a police officer, the award of moral damages in the amount
of P30,000.00 is proper.
WHEREFORE, the petition is hereby denied and
the Decision dated July 28, 2005 of the Court of Appeals
finding petitioner P03 Benito Sombilon GUILTY of the
crime of acts of lasciviousness under Article 336 of the
Revised Penal Code is AFFIRMED with Modification that
he is sentenced to suffer an indeterminate penalty of
imprisonment of six (6) months of arresto mayor as
minimum to four (4) years and two (2) months of prision
correccional as maximum, and to pay the victim the
amount of P30,000 as moral damages and P10,000.00 as
exemplary damages.
.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

LUCAS P. BERSAMIN
Associate Justice

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

REYNATO S. PUNO
Chief Justice

13
 Republic of the Philippines
Supreme Court
Manila When arraigned on February 10, 2003, the
accused-appellant pleaded not guilty to the charge.[4] Trial,
thereafter, ensued.
FIRST DIVISION
The prosecution presented as witnesses: (1) Dr.
Ma. Bella V. Profetana, Municipal Health Officer of
PEOPLE OF G.R. No. 182551 Carigara, Leyte; (2) Carmela Tagpis, the 5-year-old
THE PHILIPPINES, granddaughter of the victim Felipe Lagera and sister of the
Plaintiff-Appellee, Present: victim Ranil Tagpis, Jr.;[5] (3) Adoracion Lagera, the wife of
Felipe Lagera; and (4) Alma Tagpis, the daughter of Felipe
CORONA, C.J., Lagera and mother of Ranil Tagpis, Jr.
Chairperson,
LEONARDO-DE Dr. Profetana testified that she conducted a post-
- versus - CASTRO, mortem examination on the body of the victim Felipe
BERSAMIN, Lagera on November 6, 2002. She stated that Felipe
DEL CASTILLO, and sustained three hacking wounds, the first of which was
VILLARAMA, JR., JJ. located at his right arm and was about 23x2x4
centimeters. The said wound was fatal and could have
ROSENDO Promulgated: been caused by a sharp instrument such as a bolo. The
REBUCAN yLAMSIN, second wound was located at Felipes nose maxillary
Accused-Appellant. area,[6] measuring 13 centimeters, with an inverted C
July 27, 2011 shape. The second wound was not fatal and could have
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - been caused by a sharp-edged instrument like a bolo. The
- - - - - - - - -x third wound was located at Felipes left arm and was
measured as 9x1x1.5 centimeters. The said wound was
fatal and could have likewise been caused by a sharp-
DECISION edged instrument. Dr. Profetana concluded that the causes
of death of Felipe were hypovolemic shock, massive blood
loss and multiple hacking wounds. She also conducted a
LEONARDO DE CASTRO, J.: post-mortem examination on the body of Ranil Tagpis, Jr.
on the aforementioned date. The results revealed that Ranil
Assailed before this Court is the Decision[1] dated sustained a hacking wound at the fronto-temporal
August 21, 2007 of the Court of Appeals in CA-G.R. CR.- area[7] with a skull fracture. In the case of Ranil, the cause
H.C. No. 00282, which modified the Decision [2] dated of death was hypovolemic shock secondary to massive
November 3, 2003 of the Regional Trial Court (RTC) of blood loss secondary to [the] hacking wound to the
Carigara, Leyte, Branch 13, in Criminal Case No. 4232. In head.[8] The instrument that was most likely used was
the Decision of the Court of Appeals, the accused-appellant sharp-edged like a bolo.[9]
Rosendo Rebucan y Lamsin was adjudged guilty beyond
reasonable doubt of two (2) separate counts of murder and Carmela Tagpis testified as an eyewitness to the
was sentenced to suffer the penalty of reclusion incident in question. She pointed to the accused-appellant
perpetua for each count. as the Bata Endong[10] (Uncle Endong) who hacked her
grandfather and brother. She stated that Ranil was hit in
On January 23, 2003, the accused-appellant was the forehead, while Felipe was hit on the face, the left
charged with the crime of double murder in an Information, shoulder and the right shoulder. After Felipe was hacked by
the accusatory portion of which reads: the accused-appellant, the former was still able to walk
outside of his house, to the direction of the coconut tree
That on or about the 6th day of and thereafter fell to the ground. Carmela said that she saw
November, 2002, in the Municipality of that a long bolo was used in the killing of Felipe and
Carigara, Province of Leyte, Philippines Ranil. She related that Felipe also owned a bolo but he was
and within the jurisdiction of this not able to use the same when he was attacked. She was
Honorable Court, the above-named then inside the house with Felipe and her two younger
accused, with deliberate intent to kill, with brothers, Jericho and Bitoy (Ranil). She was sitting about
treachery and evident premeditation and four meters away when the hacking incident occurred
abuse of superior strength, did then and indoors.[11]
there willfully, unlawfully and feloniously
attack, assault and wound FELIPE On cross-examination, Carmela stated that at the
LAGERA Y OBERO, 65 years old and time of the incident, she was playing with a toy camera
RANIL TAGPIS Y LAGERA, 1 year old, inside the house and she was situated beside a chicken
with the use of a long bolo (sundang) cage, near a bench. Felipe was also there near the bench
which the accused had provided himself and he was carrying Ranil in his right arm. When asked
for the purpose, thereby inflicting upon whether the accused-appellant came inside the house in a
Felipe Lagera: sudden manner, Carmela answered in the affirmative. She
Hypovolemic shock, massive insisted that Ranil was indeed carried by Felipe when the
blood loss and multiple hacking wounds accused-appellant entered the house. She said that no
upon Ranil Tagpis: fight or altercation occurred between Felipe and the
Hypovolemic shock, massive accused-appellant. After Felipe was hacked, he
blood loss and hacking wound, head[,] immediately ran outside of the house. Carmela
which wounds caused the death of Felipe and Jericho then ran to the back of the house.[12]
Lagera y Obera and Ranil Tagpis y
Lagera, immediately thereafter.[3]
14
 Adoracion Lagera testified that at 4:00 p.m. on
November 6, 2002, she was at the house of a certain
Justiniano Rance. After arriving there, she was fetched by a
little boy who told her to go home because Felipe had been
hacked. She ran towards the direction of her house. When
she got there, she saw the lifeless body of Felipe sprawled
on the ground. She then went inside the house and found
her daughter, Alma Tagpis, cuddling the body of Ranil
whose head was wounded. She told Alma to look for a
motor vehicle to bring the child to the hospital. She also
found out that the other two children, Carmela and Jericho,
hid when they saw Felipe being hacked. When she asked
them who went to their house, Carmela told her that it was
the accused-appellant who entered their house and hacked
the victims.[13]
Alma Tagpis testified that at about 4:00 p.m. on
November 6, 2002, she was in Brgy. Sogod, having
their palay (unhusked rice grain) milled. Shortly thereafter,
she went home and proceeded to the house of her father,
Felipe, where she left her children. She then met a person
looking for her mother who was about to tell the latter that
Felipe was hacked. When she rushed to Felipes house,
she saw him lying in the grassy place, wounded and
motionless. She asked Felipe who hacked him, but he was
not able to answer anymore. She went inside the house
and saw blood on the floor and the feet of her son
Ranil. Thinking that the killer was still inside, she went to
the back of the house and pulled a slot of board on the wall
so she could get inside. Upon seeing the body of Ranil, she
took him and ran towards the road. She was able to bring
Ranil to the hospital, but the doctor already pronounced
him dead. Her other two children, Carmela and Jericho,
soon arrived at the hospital with the police. When she
asked them who killed Felipe, Carmela answered that it
was the accused-appellant.[14]
Thereafter, the prosecution formally offered the
following documentary evidence, to wit: (1) Exhibit A the
Post-mortem Examination Report on Felipe;[15] (2) Exhibit B
the sketch of the human anatomy indicating the wounds
sustained by Felipe;[16] (3) Exhibit C the Certificate of Death
of Felipe;[17] (4) Exhibit D the Post-mortem Examination
Report on Ranil;[18] (5) Exhibit E the sketch of the human
anatomy indicating the wounds sustained by Ranil; [19] and
(6) Exhibit F the Certificate of Death of Ranil.[20]
The defense, on the other hand, presented the
following witnesses, namely: (1) Raymond Rance, the
stepson of the accused-appellant; (2) Renerio
Arminal,[21] the barangay chairperson of Brgy. Canlampay,
Carigara, Leyte; (3) Arnulfo Alberca, a member of the
Philippine National Police (PNP) stationed at Carigara,
Leyte; and (4) the accused-appellant Rosendo Rebucan y
Lamsin.
Raymond Rance testified that his mothers name is Marites
Rance. The accused-appellant is not his biological father
but the former helped in providing for his basic needs. He
narrated that on the night of July 18, 2002, he saw Felipe
Lagera inside their house. Felipe placed himself on top of
Raymonds mother, who was lying down. Raymond and his
younger sister, Enda, were then sleeping beside their
mother and they were awakened. His mother kept pushing
Felipe away and she eventually succeeded in driving him
out. In the evening of July 20, 2002, at about 11:00 p.m.,
Raymond recounted that he saw Felipes son, Artemio alias
Timboy, inside their house. Timboy was able to go upstairs
and kept trying to place himself on top of Raymonds
mother. The latter got mad and pushed Timboy away. She
even pushed him down the stairs. The accused-appellant
was working in Manila when the aforesaid incidents
15
happened. Raymond said that his mother thereafter left
for Manila. Subsequently, he saw the accused-appellant at
the house of a certain Bernie, several days after the
accused-appellant arrived in Leyte. He told the accused-
appellant about the incidents involving Felipe and
Timboy. On November 6, 2002, Raymond and the accused
were already living in the same house. On the said date,
the accused-appellant left their house after they had lunch
and he told Raymond that he was going to call the latters
mother. Raymond testified that the accused-appellant is a
good man and was supportive of his family. He also stated
that the accused-appellant seldom drank liquor and even if
he did get drunk, he did not cause any trouble.[22]
Renerio Arminal testified that on November 6, 2002, the
accused-appellant surrendered to him. The latter came to
him alone and told him that he (the accused-appellant)
fought with Felipe Lagera. Arminal then ordered the human
rights action officer, Ricky Irlandez, and the chief tanod,
Pedro Oledan, to bring the accused-appellant to the police
station.Afterwards, the police officers came to his place and
he accompanied them to the house of Felipe.[23]
Arnulfo Alberca was likewise called upon to the witness
stand to prove that the voluntary surrender of the accused-
appellant was entered into the records of the police
blotter. He was asked to read in open court the Police
Blotter Entry No. 5885 dated November 6, 2002, which
recorded the fact of voluntary surrender of the accused-
appellant. His testimony was no longer presented,
however, since the prosecution already admitted the
contents of the blotter.[24]
The accused-appellant testified that he arrived in Carigara,
Leyte from Manila on August 15, 2002. He went to the
house of his elder brother, Hilario, to look for his
children.There, he learned that his wife went to Manila and
his brother was taking care of his two children and his
stepson, Raymond. On November 2, 2002, he saw
Raymond at the place of his friend, Bernie Donaldo. He
asked Raymond why the latters mother went to Manila and
he was told that, while he was still in Manila, Felipe and
Timboy Lagera went to their house and tried to place
themselves on top of his wife. He then said that he
harbored ill feelings towards the said men but he was able
to control the same for the sake of his children. On
November 6, 2002, at about 2:00 p.m., he went to the
house of barangay chairperson Arminal to place a call to
his wife who was in Manila. He was carrying a bolo at that
time since he was using the same to cut cassava stems in
his farm. When he talked to his wife, she confirmed that
she was sexually molested by Felipe and
Timboy.Thereafter, as the accused-appellant proceeded to
go home, it rained heavily so he first sought shelter at the
place of his friend, Enok. The latter was drinking gin and he
was offered a drink. After staying there and drinking for half
an hour, the accused-appellant decided to go
home. Afterwards, he remembered that he had to buy
kerosene so he went to the store of Felipe Lagera.[25]
The accused-appellant further testified that when he
reached the house of Felipe, the latter was feeding
chickens. When Felipe asked him what was his business in
going there, he confronted Felipe about the alleged sexual
abuse of his wife. Felipe allegedly claimed that the
accused-appellant had a bad purpose for being there and
that the latter wanted to start a fight. Accused-appellant
denied the accusation and responded that Felipe should
not get angry, as it was he (Felipe) who committed a wrong
against him and his wife.Felipe allegedly got mad and
hurled the cover of a chicken cage at him, but he was able
to parry it with his hand. The accused-appellant then drew
his long bolo and hacked Felipe on the left side of the
abdomen, as the latter was already turning and about to
run to the house. He also went inside the house since
Felipe might get hold of a weapon.When they were both
inside and he was about to deliver a second hacking blow,
Felipe held up and used the child Ranil as a shield. As the
second hacking blow was delivered suddenly, he was not
able to withdraw the same anymore such that the blow
landed on Ranil. When he saw that he hit the child, he got
angry and delivered a third hacking blow on Felipe, which
landed on the right side of the latters neck. Thereafter,
Felipe ran outside. He followed Felipe and hacked him
again, which blow hit the victims upper left arm.At that time,
Felipe was already on the yard of his house and was about
to run towards the road. He then left and surrendered to
the barangay chairperson.[26]
During his cross-examination, the accused-appellant said
that he was a bit tipsy when he proceeded to Felipes
house, but he was not drunk. When Felipe ran inside the
house after the first hacking blow, the accused-appellant
stated that he had no intention to back out because he was
thinking that the victim might get a gun and use the same
against him. The accused-appellant also asserted that
when he was about to deliver the second hacking blow,
Felipe simultaneously took Ranil who was sitting on a sack
and used him to shield the blow. There was a long bolo
nearby but Felipe was not able to take hold of the same
because the accused-appellant was chasing him. He
admitted that he had a plan to kill Felipe but claimed that
when he arrived at the latters house on the day of the
attack, he had no intention to kill him.[27]
The defense also presented the following documentary
evidence: (1) Exhibit 1 the Police Blotter Entry No. 5885
dated November 6, 2002;[28] and (2) Exhibit 2 the Civil
Marriage Contract of Rosendo Rebucan and Marites
Rance.[29]
On November 3, 2003, the RTC rendered a
decision, convicting the accused-appellant of the crime of
double murder. The trial court elucidated thus:
[In view of] the vivid portrayal of
Raymond on how [the wife of the
accused] was sexually abused by the
father and son Lagera, the accused
hatched a decision to avenge his wifes
sexual molestation. Days had passed,
but this decision to kill Felipe did not
wither, instead it became stronger, that
on the 6th of November 2002, he armed
himself with a sharp long bolo known as
sundang and went to Brgy. Canlampay,
Carigara, Leyte where the victim
live[d]. Fueled by hatred and the spirit of
London gin after consuming one bottle
with his compadre Enok, he decided to
execute his evil deeds by going to the
house of Felipe Lagera, in the guise of
buying kerosene and once inside the
house hacked and wounded the victim,
Felipe Lagera who was then holding in
his arm his grandson, one and half years
1 old, Ramil Tagpis, Jr.
The manner by which the
accused adopted in killing the victim,
Felipe Lagera, and Ramil Tagpis, Jr. was
a premeditated decision and executed
with treachery.
16
xxxx
There is credence to the
testimony of the minor eyewitness
Carmela Tagpis that the victim, Felipe
was holding in his arms her younger
brother, Ramil Tagpis, Jr. inside his
house, when the accused entered, and
without any warning or provocation
coming from the victim, the accused
immediately delivered several hacking
blows on the victim giving no regard
to the innocent child in the arms of
Lagera. With this precarious situation,
the victim who was unarmed has no
opportunity to put up his defense
against the unlawful aggression of the
accused, moreso, to
retaliate. Moreover, what defense could
an innocent 1 1/2 years old Ramil Tagpis,
Jr. put up against the armed and superior
strength of the accused, but to leave his
fate to God.
The circumstance that the
attack was sudden and unexpected and
the victims, unarmed, were caught totally
unprepared to defend themselves
qualifies the crime committed as
murder. x x x.
After the incident, the accused
Rosendo Rebucan immediately went to
the house of Brgy. Chairman, Renerio
Arcenal at sitio Palali, Brgy. Canlampay,
Carigara, Leyte, to surrender, because
he killed Felipe Lagera and Ramil Tagpis,
Jr. The Brgy. Chairman instructed his
Brgy. Human Rights Action Officer, Ricky
Irlandez and his Chief Tanod, Pedro
Oledan to bring Rosendo to the Police
Authorities of Carigara, Leyte. This fact of
voluntary surrender was corroborated by
Police Officer Arnulfo Alberca, who
presented to Court the police blotter,
under entry No. 5885, dated November
6, 2002, of the PNP, Carigara, Leyte.
Clearly, the act of the accused
in surrendering to the authorities showed
his intent to submit himself
unconditionally to them, to save the
authorities from trouble and expenses
that they would incur for his capture. For
this reason, he has complied with the
requisites of voluntary surrender as a
mitigating circumstance[.] x x x.
From the circumstances
obtaining, the mitigating circumstances of
admission and voluntary surrender
credited to the accused are not sufficient
to offset the aggravating circumstances
of: a) evident premeditation;
b) treachery (alevosia); c) dwelling the
crime was committed at the house of the
victim; d) intoxication the accused
fueled himself with the spirit of London
gin prior to the commission of the crime;
e) abuse of superior strength; and
f) minority, in so far as the child victim,
Ramil Tagpis, Jr. is concerned, pursuant
 to Article 63 of the Revised Penal Code deaths of Felipe Lagera and Ramil
as amended. x x x. Tagpis, Jr., and is hereby sentenced to
suffer the penalty of reclusion
xxxx perpetua for each count of murder he
has committed.
In the mind of the Court, the
prosecution has substantially established The award of civil indemnity is
the quantum of evidence to prove the reduced to P50,000.00 for each victim;
guilt of the accused beyond reasonable the award of moral damages is likewise
doubt.[30] reduced to P50,000.00 for each
victim. Further, exemplary damages in
the amount of P25,000.00 is awarded to
The RTC, thus, decreed: the heirs of each victim.[36]

WHEREFORE, premises
considered, pursuant to Sec. 6, Art. 248
of the Revised Penal Code, as amended
and further amended by R.A. 7659 (The
Death Penalty Law), the Court found
accused ROSENDO REBUCAN y
LAMSIN, GUILTY beyond reasonable
doubt of the crime of DOUBLE
MURDER charged under the information
and sentenced to suffer the maximum
penalty of DEATH, and to pay civil
indemnity to the heirs of Felipe Lagera
and Ramil Tagpis, Jr. in the amount of
Seventy-Five Thousand (P75,000.00)
Pesos for each victim and moral
damages in the amount of Seventy-Five
Thousand (P75,000.00) Pesos to each;
and
The accused-appellant filed a Notice of
Appeal[37] of the above decision. In a Resolution[38] dated
February 6, 2008, the Court of Appeals ordered that the
records of the case be forwarded to this Court.
On June 18, 2008, we resolved to accept the
appeal and required the parties to file their respective
supplemental briefs, if they so desire, within thirty days
from notice.[39]Thereafter, both parties manifested that they
were adopting the briefs they filed before the Court of
Appeals and will no longer file their respective
supplemental briefs.[40]
The accused-appellant sets forth the following
assignment of errors:
I

Pay the Cost.[31] (Emphases ours.) THE COURT A QUO GRAVELY ERRED
IN FINDING THE ACCUSED-
APPELLANT GUILTY BEYOND
The case was originally elevated to this Court on REASONABLE DOUBT FOR THE
automatic review and the same was docketed as G.R. No. CRIME OF MURDER.
161706.[32] The parties, thereafter, submitted their
respective appeal briefs.[33] In our Resolution[34] dated July II
19, 2005, we ordered the transfer of the case to the Court
of Appeals for appropriate disposition, pursuant to our THE COURT A QUO GRAVELY ERRED
ruling in People v. Mateo.[35] Before the appellate court, the IN FAILING TO APPRECIATE THE
case was docketed as CA-G.R. CR.-H.C. No. 00282. MITIGATING CIRCUMSTANCE OF
IMMEDIATE VINDICATION OF A
The Court of Appeals promulgated the assailed GRAVE OFFENSE IN FAVOR OF THE
decision on August 21, 2007, modifying the judgment of the ACCUSED-APPELLANT.
RTC. The appellate court adopted the position of the Office
of the Solicitor General (OSG) that the felonious acts of the III
accused-appellant resulted in two separate crimes of
murder as the evidence of the prosecution failed to prove THE COURT A QUO GRAVELY ERRED
the existence of a complex crime of double murder. The IN FAILING TO APPRECIATE
Court of Appeals subscribed to the findings of the RTC that INTOXICATION AS A MITIGATING
the killing of Felipe Lagera was attended by the CIRCUMSTANCE IN FAVOR OF THE
aggravating circumstances of treachery and evident ACCUSED-APPELLANT.
premeditation. With respect to the ensuant mitigating
circumstances, the Court of Appeals credited the IV
circumstance of voluntary surrender in favor of the
accused-appellant, but rejected the appreciation of THE COURT A QUO GRAVELY ERRED
intoxication, immediate vindication of a grave offense and IN APPRECIATING THE
voluntary confession. As for the death of Ranil, the AGGRAVATING CIRCUMSTANCES OF
appellate court also ruled that the same was attended by DWELLING, ABUSE
the aggravating circumstance of treachery and the OF SUPERIOR STRENGTH AND
mitigating circumstance of voluntary surrender. Thus, the MINORITY.[41]
Court of Appeals disposed of the case as follows:

WHEREFORE, IN VIEW OF The accused-appellant admits to the killing of

THE FOREGOING, the Decision Felipe but denies that the crime was committed with
appealed from is hereby MODIFIED. As treachery and evident premeditation. He argues that there
modified, accused-appellant is hereby is doubt as to the presence of treachery given that there
adjudged guilty beyond reasonable doubt was no eyewitness who categorically stated that the
for two (2) counts of murder for the accused-appellant attacked the victims suddenly, thereby
17
depriving them of the means to defend themselves. He
brushed aside the testimony of Carmela Tagpis, insisting
that she was not in a position to say that there was no
altercation between him and Felipe, which could have put
the latter on guard. The prosecution allegedly failed to
prove that the accused-appellant intentionally waited for the
time when Felipe would be defenseless before initiating the
attack. The fact that he voluntarily surrendered to
the barangay chairperson and the police and admitted the
killings supposedly showed that it was not intentional and
he did not consciously adopt the method of attack upon the
two victims. The accused-appellant similarly rejects the
finding of the RTC that there was evident premeditation on
his part since the prosecution failed to prove that he
deliberately planned the killing of Felipe.
The accused-appellant maintains that at the time
of the incident, he was still unable to control his anger as
he just recently discovered that his wife was sexually
abused by Felipe and the latters son, Timboy. He also
avers that he was a bit intoxicated when the crime took
place so that he was not in total control of himself. He
claims that he is not a habitual drinker and that he merely
consumed the alcohol prior to the incident in order to
appease his friend. He likewise argues that the aggravating
circumstance of dwelling should not have been appreciated
inasmuch as the same was not alleged in the
information. Moreover, the aggravating circumstance of
abuse of superior strength cannot be appreciated since he
did not deliberately harm or attack Ranil Tagpis, Jr. and the
death of the latter was accidental. The accused-appellant
prays that he should only be found guilty of the crime of
homicide with the mitigating circumstances of voluntary
surrender, immediate vindication of a grave offense and
intoxication.
is treachery even if the attack is frontal if it is sudden and
unexpected, with the victims having no opportunity to repel
it or defend themselves, for what is decisive in treachery is
that the execution of the attack made it impossible for the
victims to defend themselves or to retaliate.[48]
In the case at bar, the RTC gave more weight to
the testimony of Carmela Tagpis in establishing the
presence of treachery in the manner with which the
accused-appellant carried out the violent killings of Felipe
and Ranil. In this regard, we reiterate the established
doctrine articulated in People v. De Guzman[49] that:
In the resolution of the factual
issues, the court relies heavily on the trial
court for its evaluation of the witnesses
and their credibility. Having the
opportunity to observe them on the
stand, the trial judge is able to detect that
sometimes thin line between fact and
prevarication that will determine the guilt
or innocence of the accused. That line
may not be discernible from a mere
reading of the impersonal record by the
reviewing court. x x x.[50]
Moreover, we have oftentimes ruled that the Court
will not interfere with the judgment of the trial court in
determining the credibility of witnesses unless there
appears in the record some fact or circumstance of weight
and influence which has been overlooked or the
significance of which has been misinterpreted.[51]
Carmela testified as follows:

The appeal lacks merit. PROS. TORREVILLAS:

Basic is the rule that in order to affirm the Q: Do you have a brother named Ranil
conviction of an accused person, the prosecution must Tagpis, Jr?
establish his guilt beyond reasonable A: Yes sir.
doubt. Proof beyond reasonabledoubt does not mean such
a degree of proof as, excluding possibility of error, Q: Where is he now?
produces absolute certainty. Only moral certainty is A: He is dead.
required, or that degree of proof which produces conviction
in an unprejudiced mind.[42] Ultimately, what the law simply Q: Do you know the circumstance of his
requires is that any proof against the accused must survive death?
the test of reason for it is only when the conscience is A: Yes sir.
satisfied that the perpetrator of the crime is the person on
trial should there be a judgment of conviction. [43] A finding Q: Why did he die?
of guilt must rest on the strength of the prosecutions own A: Because he was hacked by Bata
evidence, not on the weakness or even absence of Endong.
evidence for the defense.[44]
Q: Do you know also your grandfather
In the instant case, the evidence of the Felipe Lagera, Jr?
prosecution established the fact that the killings of Felipe A: Yes sir.
and Ranil were attended by treachery, thus qualifying the
same to murder. Q: Where is he now?
A: He is dead also.
According to Article 248[45] of the Revised Penal
Code, as amended, any person who shall kill another shall Q: Why did he die?
be guilty of murder if the same was committed with the A: Because he was hacked by Bata
attendant circumstance of treachery, among other things, Endong.
and that the situation does not fall within the provisions of
Article 246.[46] There is treachery when the offender Q: Is the person your Bata Endong here
commits any of the crimes against the person, employing in the court room who hacked
means, methods, or forms in the execution thereof which your brother and your
tend directly and specially to insure its execution, without grandfather?
risk to himself arising from the defense which the offended A: Yes sir.
party might make.[47] The essence of treachery is a
deliberate and sudden attack, offering an unarmed and COURT INTERPRETER:
unsuspecting victim no chance to resist or to escape. There
18
 Witness pointing to a person
when asked of his name
identified himself as Rosendo
Rebucan.
xxxx
Q: What instrument did the accused use
in killing your [brother and] your
grandfather?
A: Long bolo, sundang.
Q: Were you able to see that long bolo?
A: Yes sir.
xxxx
Q: Was your grandfather armed that
time?
A: He has his own bolo but he placed it
on the holder of the long bolo.
Q: Was that long bolo used by your
grandfather?
A: No sir.
xxxx
Q: How far were you to the incident,
when this hacking incident
happened?
A: (witness indicating a distance of about
4 meters).
xxxx
COURT:
Cross.
ATTY. DICO:
Q: You stated awhile ago that your
brother Jericho, Bitoy [Ranil]
and you and your papo Felipe
were at the house of your papo
Felipe?
A: Yes sir.
Q: You mean to say that there were no
other persons present in that
house other than you four (4)?
A: Yes sir.
xxxx
Q: So, you were playing that toy camera
inside the room of your papo
Felipe?
A: No sir, I was playing then at the side of
the chicken cage.
Q: Is that chicken cage was inside or
outside the house of your papo
Felipes house?
A: Inside the house of my grandfather.
xxxx
Q: Was your brother Ranil carried by
your grandfather Felipe?
A: Yes sir.
He was carried by his right arm.
19
Q: So, you mean to say that your uncle
Endo went inside, it was so
sudden?
A: Yes sir.
Q: Because it was sudden, you were not
able to do anything, what did
you do?
A: I then cried at that time.
xxxx
Q: But you are sure that when your uncle
Endo entered as you said that
your brother Ramil was carried
by your papo Felipe?
A: Yes sir.
Q: Did your uncle Endo and your papo
Felipe fight or was there an
altercation?
A: No sir.[52]
As can be gleaned from the above testimony,
Carmela firmly and categorically pointed to the accused-
appellant as the person who entered the house of
Felipe. She clearly stated that the attack was not preceded
by any fight or altercation between the accused-appellant
and Felipe. Without any provocation, the accused-appellant
suddenly delivered fatal hacking blows to Felipe. The
abruptness of the unexpected assault rendered Felipe
defenseless and deprived him of any opportunity to repel
the attack and retaliate. As Felipe was carrying his
grandson Ranil, the child unfortunately suffered the same
fatal end as that of his grandfather. In the killing of Ranil,
the trial court likewise correctly appreciated the existence of
treachery. The said circumstance may be properly
considered, even when the victim of the attack was not the
one whom the defendant intended to kill, if it appears from
the evidence that neither of the two persons could in any
manner put up defense against the attack or become aware
of it.[53] Furthermore, the killing of a child is characterized by
treachery even if the manner of assault is not shown. For
the weakness of the victim due to his tender years results
in the absence of any danger to the accused.[54]
Although the accused-appellant painted a
contrasting picture on the matter, i.e., that the attack was
preceded by a fight between him and Felipe, the Court is
less inclined to be persuaded by the accused-appellants
version of the events in question. Indeed, the Court has
ruled that the testimony of children of sound mind is more
correct and truthful than that of older persons and that
children of sound mind are likely to be more observant of
incidents which take place within their view than older
persons, and their testimonies are likely more correct in
detail than that of older persons.[55] In the instant case,
Carmela was cross-examined by the defense counsel but
she remained steadfast and consistent in her
statements. Thus, the Court fails to see any reason to
distrust the testimony of Carmela.
Incidentally, the testimony of the accused-
appellant not only contradicts that of Carmela, but some
portions thereof do not also conform to the documentary
evidence admitted by the trial court. The testimony of Dr.
Profetana and the sketch of the human anatomy of Felipe,
which was marked as Exhibit B for the prosecution, stated
that Felipe sustained three hacking wounds that were
found on his right arm, at his nose maxillary area [56] and on
his left arm. On the other hand, the accused-appellant
testified that he delivered four hacking blows on Felipe, the
three of which landed on the left side of the victims
abdomen, the right side of his neck and on his upper left
arm. When confronted on the said apparently conflicting
statements, the accused-appellant did not offer any
explanation.[57]
Therefore, on the strength of the evidence of the
prosecution, we sustain the ruling of the RTC and the Court
of Appeals that the circumstance of treachery qualified the
killings of Felipe and Ranil to murder.
The Court finds erroneous, however, the trial
courts and the Court of Appeals appreciation of the
aggravating circumstance of evident premeditation. For
evident premeditation to aggravate a crime, there must be
proof, as clear as the evidence of the crime itself, of the
following elements: (1) the time when the offender
determined to commit the crime; (2) an act manifestly
indicating that he clung to his determination; and (3)
sufficient lapse of time, between determination and
execution, to allow himself to reflect upon the
consequences of his act.[58] It is not enough that evident
premeditation is suspected or surmised, but criminal intent
must be evidenced by notorious outward acts evidencing
determination to commit the crime. In order to be
considered an aggravation of the offense, the circumstance
must not merely be premeditation; it must be evident
premeditation.[59] In the case at bar, the evidence of the
prosecution failed to establish any of the elements of
evident premeditation since the testimonies they presented
pertained to the period of the actual commission of the
crime and the events that occurred thereafter. The
prosecution failed to adduce any evidence that tended to
establish the exact moment when the accused-appellant
devised a plan to kill Felipe, that the latter clung to his
determination to carry out the plan and that a sufficient time
had lapsed before he carried out his plan.
Likewise, the trial court erred in appreciating the
aggravating circumstances of abuse of superior strength,
dwelling, minority and intoxication. When the circumstance
of abuse of superior strength concurs with treachery, the
former is absorbed in the latter.[60] On the other hand,
dwelling, minority and intoxication cannot be appreciated as
aggravating circumstances in the instant case considering
that the same were not alleged and/or specified in the
information that was filed on January 23, 2003. Under the
Revised Rules of Criminal Procedure, which took effect on
December 1, 2000, a generic aggravating circumstance will
not be appreciated by the Court unless alleged in the
information.This requirement is laid down in Sections 8 and
9 of Rule 110, to wit:
SEC. 8. Designation of the
offense. - The complaint or information
shall state the designation of the offense
given by the statute, aver the acts or
omissions constituting the offense, and
specify its qualifying and aggravating
circumstances. If there is no designation
of the offense, reference shall be made
to the section or subsection of the statute
punishing it.
SEC. 9. Cause of the
accusation. - The acts or omissions
complained of as constituting the offense
and the qualifying and aggravating
circumstances must be stated in ordinary
and concise language and not
20
necessarily in the language used in the
statute but in terms sufficient to enable a
person of common understanding to
know what offense is being charged as
well as its qualifying and aggravating
circumstances and for the court to
pronounce judgment.
With regard to the conflicting rulings of the RTC
and the Court of Appeals vis--vis the nature of crimes
committed, we agree with the appellate court that the
accused-appellant should be held liable for two (2)
separate counts of murder, not the complex crime of double
murder.
Article 48 of the Revised Penal Code provides that
[w]hen a single act constitutes two or more grave or less
grave felonies, or when an offense is a necessary means
for committing the other, the penalty for the most serious
crime shall be imposed, the same to be applied in its
maximum period. There are, thus, two kinds of complex
crimes. The first is known as compound crime, or when a
single act constitutes two or more grave or less grave
felonies. The second is known as complex crime proper, or
when an offense is a necessary means for committing the
other.[61]
The Court finds that there is a paucity of evidence
to prove that the instant case falls under any of the two
classes of complex crimes. The evidence of the
prosecution failed to clearly and indubitably establish the
fact that Felipe and Ranil were killed by a single fatal
hacking blow from the accused-appellant. The eyewitness
testimony of Carmela did not contain any detail as to this
material fact. To a greater degree, it was neither proven
that the murder of Felipe was committed as a necessary
means for committing and/or facilitating the murder of Ranil
and vice versa. As the factual milieu of the case at bar
excludes the application of Article 48 of the Revised Penal
Code, the accused-appellant should be made liable for two
separate and distinct acts of murder. In the past, when two
crimes have been improperly designated as a complex
crime, this Court has affirmed the conviction of the accused
for the component crimes separately instead of the
complex crime.[62]
In the determination of the penalty to be imposed
on the accused-appellant, we uphold the trial courts ruling
that the mitigating circumstance of voluntary surrender
should be appreciated. For voluntary surrender to mitigate
criminal liability, the following elements must concur: (1) the
offender has not been actually arrested; (2) the offender
surrenders himself to a person in authority or to the latters
agent; and (3) the surrender is voluntary.[63] To be
sufficient, the surrender must be spontaneous and made in
a manner clearly indicating the intent of the accused to
surrender unconditionally, either because they
acknowledge their guilt or wish to save the authorities the
trouble and the expense that will necessarily be incurred in
searching for and capturing them.[64] The accused-appellant
has duly established in this case that, after the attack on
Felipe and Ranil, he surrendered unconditionally to
the barangay chairperson and to the police on his own
volition and before he was actually arrested. The
prosecution also admitted this circumstance of voluntary
surrender during trial.
We reject, however, the accused-appellants
contention that the trial court erred in failing to appreciate
the mitigating circumstances of intoxication and immediate
vindication of a grave offense.

The third paragraph of Article 15 of the Revised
Penal Code provides that the intoxication of the offender
shall be taken into consideration as a mitigating
circumstance when the offender has committed a felony in
a state of intoxication, if the same is not habitual or
subsequent to the plan to commit said felony; but when the
intoxication is habitual or intentional, it shall be considered
as an aggravating circumstance. The Court finds that the
accused-appellant is not entitled to the mitigating
circumstance of intoxication since his own testimony failed
to substantiate his claim of drunkenness during the incident
in question. During his cross-examination, the accused-
appellant himself positively stated that he was only a bit
tipsy but not drunk when he proceeded to the house of
Felipe.[65] He cannot, therefore, be allowed to make a
contrary assertion on appeal and pray for the mitigation of
the crimes he committed on the basis thereof.
As regards the mitigating circumstance of
immediate vindication of a grave offense, the same cannot
likewise be appreciated in the instant case. Article 13,
paragraph 5 of the Revised Penal Code requires that the
act be committed in the immediate vindication of a grave
offense to the one committing the felony (delito), his
spouse, ascendants, descendants, legitimate, natural or
adopted brothers or sisters, or relatives by affinity within the
same degrees. The established rule is that there can be no
immediate vindication of a grave offense when the accused
had sufficient time to recover his equanimity. [66] In the case
at bar, the accused-appellant points to the alleged attempt
of Felipe and Timboy Lagera on the virtue of his wife as the
grave offense for which he sought immediate
vindication. He testified that he learned of the same from
his stepson, Raymond, on November 2, 2002. Four days
thereafter, on November 6, 2002, the accused-appellant
carried out the attack that led to the deaths of Felipe and
Ranil. To our mind, a period of four days was sufficient
enough a time within which the accused-appellant could
have regained his composure and self-control. Thus, the
said mitigating circumstance cannot be credited in favor of
the accused-appellant.
Article 248 of the Revised Penal Code, as
amended, prescribes the penalty of reclusion perpetua to
death for the crime of murder. In this case, apart from the
qualifying circumstance of treachery, the prosecution failed
to prove the existence of any other aggravating
circumstance in both the murders of Felipe and Ranil. On
the other hand, as the presence of the lone mitigating
circumstance of voluntary surrender was properly
established in both instances, Article 63, paragraph 3 of the
Revised Penal Code[67] mandates that the proper penalty to
be imposed on the accused-appellant is reclusion
perpetua for each of the two counts of murder.
Anent the award of damages, when death occurs
due to a crime, the following may be recovered: (1) civil
indemnity ex delicto for the death of the victim; (2) actual or
compensatory damages; (3) moral damages; (4) exemplary
damages; (5) attorney's fees and expenses of litigation;
and (6) interest, in proper cases.[68]
The RTC awarded in favor of the heirs of Felipe
and Ranil the amounts of P75,000.00 as civil indemnity
and P75,000.00 as moral damages for each set of
heirs. The Court of Appeals, on the other hand, reduced
the aforesaid amounts to P50,000.00 and further awarded
the amount of P25,000.00 as exemplary damages to the
heirs of the victim.
21
Civil indemnity is mandatory and granted to the
heirs of the victim without need of proof other than the
commission of the crime.[69] Similarly, moral damages may
be awarded by the court for the mental anguish suffered by
the heirs of the victim by reason of the latters death. The
purpose for making such an award is not to enrich the heirs
of the victim but to compensate them for injuries to their
feelings.[70] The award of exemplary damages, on the other
hand, is provided under Articles 2229-2230 of the Civil
Code, viz:
Art. 2229. Exemplary or
corrective damages are imposed, by way
of example or correction for the public
good, in addition to the moral, temperate,
liquidated or compensatory damages.
Art. 2230. In criminal offenses,
exemplary damages as a part of the civil
liability may be imposed when the crime
was committed with one or more
aggravating circumstances. Such
damages are separate and distinct from
fines and shall be paid to the offended
party.
In People v. Dalisay,[71] the Court clarified that
[b]eing corrective in nature, exemplary damages, therefore,
can be awarded, not only in the presence of an aggravating
circumstance, but also where the circumstances of the
case show the highly reprehensible or outrageous conduct
of the offender. In much the same way as Article 2230
prescribes an instance when exemplary damages may be
awarded, Article 2229, the main provision, lays down the
very basis of the award.[72]
Thus, we affirm the Court of Appeals award
of P50,000.00 as civil indemnity and P50,000.00 as moral
damages. The award of exemplary damages is, however,
increased to P30,000.00 in accordance with the prevailing
jurisprudence. As held in People v. Combate,[73] when the
circumstances surrounding the crime call for the imposition
of reclusion perpetua only, the proper amounts that should
be awarded are P50,000.00 as civil indemnity, P50,000.00
as moral damages and P30,000.00 as exemplary
damages.
In lieu of actual or compensatory damages, the
Court further orders the award of P25,000.00 temperate
damages to the heirs of the two victims in this case. The
award of P25,000.00 for temperate damages in homicide or
murder cases is proper when no evidence of burial and
funeral expenses is presented in the trial court. Under
Article 2224 of the Civil Code, temperate damages may be
recovered, as it cannot be denied that the heirs of the
victim suffered pecuniary loss, although the exact amount
was not proven.[74]
WHEREFORE, the Court
hereby AFFIRMS with MODIFICATION the Decision dated
August 21, 2007 of the Court of Appeals in CA-G.R. CR.-
H.C. No. 00282. The accused-appellant Rosendo Rebucan
y Lamsin is found GUILTY of two (2) counts of murder for
the deaths of Felipe Lagera and Ranil Tagpis, Jr. and is
hereby sentenced to suffer the penalty of reclusion
perpetua for each count. The accused-appellant is further
ordered to indemnify the respective heirs of the victims
Felipe Lagera and Ranil Tagpis, Jr. the amounts
of P50,000.00 as civil indemnity, P50,000.00 as moral
damages, P30,000.00 as exemplary damages
and P25,000.00 as temperate damages for each victim,
plus legal interest on all damages awarded at the rate of
6% from the date of the finality of this decision. No costs.

SO ORDERED.

TERESITA J.
LEONARDO-DE
CASTRO
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

LUCAS P. BERSAMIN MARIANO

Associate Justice C. DEL CASTILLO
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts
Division.

RENATO C. CORONA
Chief Justice

22
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-35156 November 20, 1981
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FLORO RODIL defendant-appellant.
MAKASIAR, J.:
Accused Floro Rodil was found guilty, beyond reasonable
doubt, of the crime of murder by the Circuit Criminal Court
of Pasig, Rizal, for the death of Lt. Guillermo Masana of the
Philippine Constabulary. Accordingly, he was sentenced to
death, to indemnify the heirs of the deceased in the amount
of P12,000.00, to pay the amount of P10,000.00 as moral
damages and another P10,000.00 as exemplary damages,
and to pay the costs.
The information alleges:
That on or about April 24, 1971, in the
Municipality of Indang, Province of
Cavite, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused, armed with a
double-bladed dagger, with evident
premeditation and treachery, and with
intent to kill, did, then and there, wilfully,
unlawfully, and feloniously, attack and
stab PC Lt. Guillermo Masana while the
latter was in the performance of his
official duties, inflicting upon him stab
wounds on the different parts of his body
which directly caused his death.
Contrary to law
From the evidence adduced by the prosecution, We glean
the following facts:
At about 1:00 o'clock in the afternoon of April 24, 1971, the
deceased, PC Lt. Guillermo Masana together with PC
soldier Virgilio Fidel, Philippine Coast Guard serviceman
Ricardo Ligsa and Patrolman Felix Mojica of Indang,
Cavite, was having lunch inside a restaurant in front of the
Indang market (pp. 2,3, t.s.n., Oct. 30, 1971; pp. 10, 19,
t.s.n., Nov. 22, 1971; p. 21, t.s.n., Jan. 20, 1972). While
they were eating, they saw, through the glass panel of the
restaurant, appellant outside the restaurant blowing his
whistle. Their attention having been drawn to what
appellant was doing, Lt. Masana then in civilian clothing,
accompanied by PC soldier Virgilio Fidel, went out of the
restaurant, approached appellant and asked the latter, after
Identifying himself as a PC officer, whether the gun that
was tucked in his waist had a license. Instead of answering
the question of Lt. Masana appellant moved one step
backward and attempted to draw his gun. PC soldier
Virgilio Fidel immediately grabbed appellant's gun from
appellant's waist and gave it to Lt. Masana After that, Lt.
Masana told the appellant to go inside the restaurant. PC
soldier Virgilio Fidel followed. Lt. Masana and the appellant
occupied a separate table about one and one-half (1 1/2)
meters from the table of Lt. Masana's three companions —
Fidel, Ligsa and Mojica (p. 10, t.s.n., Nov. 22, 1971). After
23
the two were already seated, Lt. Masana placed appellant's
gun on the table. After that Lt. Masana pulled out a piece of
coupon bond paper from his pocket and wrote thereon the
receipt for the gun, and after signing it, he asked appellant
to countersign the same, but appellant refused to do so.
Instead, he asked Lt. Masana to return the gun to him. Lt.
Masana rejected appellant's plea, telling, the latter that they
would talk the matter over in the municipal building of
Indang, Cavite. When Lt. Masana was about to stand up,
appellant suddenly pulled out a double-bladed dagger and
with it he stabbed Lt. Masana several times, on the chest
and stomach causing his death several hours thereafter
(pp. 4, 5, 6, 7, 8, t.s.n., Oct. 30, 1971; pp. 10, 11, 12, t.s.n.,
Nov. 22, 1971).
While the stabbing incident was taking place, the three
companions of Lt. Masana — PC soldier Virgilio Fidel,
Coast Guard Ricardo Ligsa and policeman Felix Mojica —
who were all seated at a separate table about one and one-
half (1 1/2) meters away from that occupied by the accused
and Lt. Masana stood up to assist Lt. Masana but Chief of
Police Primo Panaligan of Indang, Cavite, who happened
to be taking his lunch in the same restaurant, was quicker
than any of them in going near the combatants and
embraced and/or grabbed the accused from behind, and
thereafter wrested the dagger from the accused-appellant.
Immediately thereafter, the Chief of Police brought the
accused to the municipal building of Indang, Cavite (p. 8,
t.s.n., Oct. 30, 1971; pp. 19-20, t.s.n., Nov. 22, 1971; pp.
26, 28, t.s.n., Jan. 20, 1972), while the companions of Lt.
Masana brought the latter to the V. Luna Hospital in
Quezon City where he expired several hours later as a
result of the stab wounds inflicted by the accused (pp. 21,
22, t.s.n., Nov. 22, 1971). Dr. Felicisimo del Rosario,
Medico-Legal Officer of the Armed Forces of the
Philippines, conducted an autopsy of the cadaver of Lt.
Masana and made the following findings, which are
embodied in his Report, Exhibits "D" and "D-1 " (pp. 88-89,
rec.), and which reads as follows:
Postmortem findings.
General:
Fairly developed and nourished male
subject in rigor mortis with postmortem
lividity over the dependent portions of the
body. Pupils are dilated. Finger and toe
tips are pale. There is an exploratory
laparotomy incision at the abdomen,
measuring 21 cm. long, 3 cm. left of the
anterior midline, with eighteen (18)
stitches applied. There are surgical
incisions at the left and right abdomen,
measuring 2 cm. long, 9 cm. from the
anterior midline and 2 cm. long, 6.5 cm.
from the anterior midline with two (2)
stitches applied and a rubber drain
sticking out of each, respectively.
TRUNK:
(1) Stab wound, left chest, measuring 0.9
by 0.4 cm., 5 cm. from the anterior
midline, 128 cm. above the heel, 1 cm.
deep, directed posterior wards and
slightly upwards, passing superficially
between muscles and tissues.
 (2) Stab wound, left chest, measuring 1.2
by 0.4 cm., 9 cm. from the anterior
midline, 121 cm. above the heel, 5.5. cm.
deep, directed posterior wards,
downwards and to the left, lacerating the
muscles at the 4th intercostal space.
(3) Stab wound, abdomen, measuring 0.9
by 0.2 cm. just left of the anterior midline,
96 cm. above the heel 11 cm. deep,
directed posterior wards, upwards and to
the left, perforating the greater curvature
of the stomach and the gastric vessels,
grazing the liver, perforating the
diaphragm and infero-medial border of
the lower lobe of the right lung.
(4) Impact abrasion, right scapular
region, measuring 2 by 0.2 cm., 12 cm.
from the posterior midline, 127 cm. above
the heel.
UPPER EXTREMITIES:
(5) Incised wound, anterior aspect of the
distal third of the left arm, measuring 3 by
0.5 cm., just medial to its anterior midline.
(6) Incised wound, posterior aspect of the
proximal phalange of the right index
finger, measuring 1 by 0.2 cm., just
medial to its posterior midline.
Five hundred (500) cc. blood and blood
clots accumulated in the thoracic cavity.
There are four (4) sutures applied at a
lacerated wound at the greater curvature
of the stomach.
There is nothing remarkable in the
unaffected organs internally.
REMARKS:
Cause of death is cardio-respiratory
arrest due to severe shock and
intrathoracic hemorrhage as a result of
multiple stab wounds of the body,
perforating the stomach, gastric vessels,
liver, diaphragm and lower lobe of the
right lung.
Claiming self-defense, the accused, on the other hand,
maintains and relies on the following facts:
At about 1: 00 o'clock in the afternoon of April 24, 1971, the
accused and his wife were in a restaurant near the market
place of Indang, Cavite, in order to take their lunch. They
had just come from Mandaluyong, Rizal where they reside
(pp. 21, 22, t.s.n., Dec. 10, 1971). Inside the restaurant, the
accused saw three persons to his right, eating, while to his
left he saw a person whom he later learned to be Lt.
Guillermo Masana drinking beer alone. While the accused
and his wife were waiting for the food to be served, Lt.
Masana approached him and asked him whether he was
Floro Rodil and whether he was a member of the Anti-
Smuggling Unit. After receiving an affirmative answer, Lt.
Masana invited the accused to join him in his table. The
24
accused accepted the invitation so the two moved over to
the officer's table where the deceased offered beer to the
accused who, however, refused saying he was still hungry.
In the course of their conversation, Lt. Masana told the
accused not to report any matter about smuggling to the
PC. The accused informed the officer that he had not
reported any smuggling activity to the authorities. Lt.
Masana then asked the accused for his identification card
as a member of the Anti-Smuggling Unit, which the latter
did by showing his ID card, Exhibit " 1 ", bearing his picture
and indicating that he was an officer of the Anti-Communist
League of the Philippines (pp. 62-68, t.s.n., Dec. 7, 1971).
Thereupon, Lt. Masana told the accused that the latter's ID
was fake, and after the accused insisted that it was
genuine, Lt. Masana tried to take it away from the accused
when the latter was about to put it back in his pocket.
Because of his refusal to give his Id card to Lt. Masana the
latter got mad and, in an angry tone of voice, demanded:
"Will you give it to me or not?" (P. 7 1, Ibid). Still the
accused refused to surrender his ID to Lt. Masana
Thereupon, the latter pulled a gun from his waist and hit the
accused on the head with its handle two (2) time
Immediately, blood gushed from his head and face. When
Lt. Masana was about to hit the accused for the third time,
the latter parried the right hand of the officer, pulled his
"pangsaksak" and stabbed the officer two or three times
and then pushed him away from him and ran out of the
restaurant (pp. 74,75,79, Ibid).
The accused went in the direction of the municipal building
of Indang, Cavite, where he intended to surrender to the
authorities. But on his way, he met Primo Panaligan, the
Chief of Police of Indang, Cavite. The Chief of Police asked
him why his head and face were bloody and he answered
that he was hit by Lt. Masana on the head with a gun (pp.
86, 89, t.s.n., Ibid). If here upon, the Chief of Police asked
somebody to accompany the accused to the municipal
building. Arriving there, one Victor, a policeman of Indang,
Cavite, accompanied him to Dr. Ruben Ochoa, whose clinic
was just across the street where the municipal building is
located (p. 9, t.s.n., Ibid; p. 4, t.s.n., Dec. 15, 1971). After
he was given first aid treatment, he was brought back by
the Indang policeman to the municipal, building where he
was detained for two days before he was picked up by the
Philippine Constabulary operatives and transferred to the
121th PC Headquarters in Tagaytay City (pp. 90-91,
t.s.n., Ibid; pp. 4, 39, 40, t.s.n., Dec. 10, 1971; p. 6, t.s.n.,
Dec. 15, 1971; p. 5, t.s.n., Jan. 20, 1972).
After due trial, the court a quo rendered a decision
sentencing the accused as heretofore stated.
I
Self-defense is an affirmative allegation that must be
proven by clear, sufficient, satisfactory and convincing
evidence (People vs. Libed 14 SCRA 410, 413; People vs.
Mendoza, 13 SCRA 11, 17; People vs. Solaña, 6 SCRA 60,
65-66; People vs. Davis, 1 SCRA 473; 477; People vs.
Paras, 80 Phil. 149; 152; People vs. Berio 59 Phil. 533;
536; People vs. Gimena, 59 Phil. 509, 514). Moreover, to
prove justification, the accused must rely on the strength of
his own evidence and not on the weakness of that of the
prosecution, for even if it were weak, it could not be
disbelieved after the accused had admitted the killing
(People vs. Llamera, 51 SCRA 48, 57; People vs. Talaboc,
30 SCRA 87; People vs. Navarro, 25 SCRA 491; 496;
People vs. Solaña, 6 SCRA 60, 65-66; People vs.
Espenilla, 62 Phil. 264, 270; People vs. Apolinario, 58 Phil
586-588; People vs. Ansoyon, 65 Phil. 7 7 2). The rationale
for this jurisprudence is that, having admitted the wounding
or killing of the victim, the accused must be held criminally
liable for the crime unless he establishes to the satisfaction
of the court the fact of legitimate self-defense.
In the case at bar, the accused contends that it was the
deceased, Lt. Guillermo Masana who committed unlawful
aggression when the latter hit him on his head with the
handle of his gun after he refused to surrender his
(accused's) ID to him.
This claim does not merit belief.
The accused claims that after he refused to give his ID to
the deceased because the same was his and he also spent
money for it, the latter hit him with the handle of his
(deceased's) gun. WE cannot perceive how this refusal of
the accused could have provoked or enraged the deceased
to the extent of initiating the aggression by drawing his
pistol and hitting the accused with its butt, knowing that the
accused was no longer armed after the latter's gun had
earlier been taken away from him. Besides, an agent of
authority, like the deceased, ordinarily is not authorized to
use force, except in an extreme case when he is attacked,
or subject to active resistance, and finds no other way to
comply with his duty or cause himself to be obeyed by the
offender. Furthermore, the records reveal an unrebutted
fact to the effect that the deceased was unarmed when the
incident happened, he being then on leave. As a matter of
fact, he was then in civilian clothing (pp. 29-30, t.s.n., Jan.
20, 1972). WE are, therefore, inclined to believe that it was
the accused who had every reason to be resentful of the
deceased and to be enraged after the deceased refused to
heed his plea that his gun be returned him; because he
might be prosecuted for illegal possession of firearms.
Accordingly, We are constrained to draw the inescapable
conclusion that it was the accused, not the deceased, who
initiated the aggression which ended in the fatal wounding
of the deceased resulting in his death.
The accused further claims that he was hit twice by the
deceased before he parried the third blow. This claim is
belied by the record. During the trial, the court a quo asked
the accused to show the scar produced by the injuries
inflicted by the deceased when he refused to give his ID
thus —
Court
Q Where is that scar?
(Witness showing his
right side of the head
to the Court)"
[pp. 86,88, t.s.n., Dec. 7, 1971].
Dr. Ruben Ochoa who treated the injuries of the accused
corroborated the foregoing testimony in his medical
findings, Exhibit "3", which reads:
Injuries:
(1) lacerated wound 1/2 inch, parietal
region.
(2) lacerated wound, 1 1/2 inches, rt ear
lobe
25
(3) contusion, right mastoid area [Exh.
"3"; p. 116, rec] .
The record reveals that the deceased was a right-handed
person (pp. 76-77, t.s.n., Dec. 7, 1971). It also shows that
before the stabbing incident took place, the deceased and
the accused were facing each other. If that was the case,
and considering that the deceased was, according to the
accused, holding the gun with his right hand, why was the
accused hit on the right side of his head and and on his
right ear lobe WE find that this particular claim of the
accused that it was the deceased who first hit him twice
with the handle of his gun before parrying the third blow
and then stabbing the latter is definitely belied not only by
the location of the scar but also by the medical finding of
Dr. Ochoa aforequoted. Indeed, if the protagonists were
facing each other, and it appearing that they were both
right- handed (p. 13, t.s.n., Nov. 22, 1971), the blow given
by one, if not parried by the other, would perforce land on
the left, and not on the right, side of the body of the
recipient of the blow. WE, therefore, reject such claim for
being improbable, the same being contrary to the natural
course of human behavior.
The fact of the matter, however, as testified to by state
witness PC soldier Virgilio Fidel, is that the victim parried
with both hands the thrust of the appellant with such force
that appellant bumped his head on the edge of the table
causing blood to ooze from the resulting injury on his head.
When the accused allegedly met the Chief of Police of
Indang, Cavite, on his way to the municipal building from
the scene of the stabbing incident purportedly to surrender
to the authorities, he claims that he told the Chief of Police
that Lt. Masana hit him on his head with the handle of his
(Masana's) gun. On his return from the clinic of Dr. Ochoa
where his injuries were treated, he was detained in the
municipal building of Indang, Cavite for two days before he
was transferred to the Tagaytay PC Headquarters. During
all this time, he did not give any written statement, much
less inform any PC or other police agency that he stabbed
Lt. Masana in self-defense. It was only on July 8, 1971.
after the lapse of more than two and one-half (2 1/2)
months that he claimed self-defense during the preliminary
investigation of the case before the municipal judge of
Indang, Cavite (pp. 44, t.s.n., Dec. 10, 1971). If the
accused had really acted in self-defense, he would surely
have so informed the Chief of Police at the first opportunity.
He only allegedly told the Chief of Police, who allegedly
asked him why his head and face were bloody, that Lt.
Masana hit him with a gun. He did not tell the Police Chief
that he was surrendering for stabbing the deceased in self-
defense. This claim of the accused made before the
municipal judge of Indang, Cavite, on July 8, 1971
aforesaid constitutes an exculpatory statement made so
long after the crime was committed on April 24, 1971. Such
claim does not deserve credence since the same is
obviously an afterthought, which cannot overthrow the
straightforward testimony of prosecution witnesses PC
soldier Virgilio Fidel and Coast Guard serviceman Ricardo
Ligsa both disinterested and unbiased witnesses, whose
testimony as peace officers, in the absence of any showing
as to any motive that would impel them to distort the truth,
must be afforded full faith and credit as a whole.
The fact that the chief of police detained the accused that
same day after he was treated by Dr. Ochoa, confirms the
testimony of the state witnesses that the police was present
during the incident between the appellant and the victim
and that the police chief embraced appellant and grabbed
the knife from appellant, whom he thereafter brought to the
municipal building.
II
Was the crime committed murder or homicide merely or
murder or homicide complexed with assault upon an agent
of authority?
According to the Solicitor General, the crime committed
was murder because "it was established by the prosecution
that during the stabbing incident, appellant suddenly and
without giving the victim a chance to defend himself,
stabbed the latter several times with a dagger, inflicting
upon mortal wounds on the chest and stomach. ...Needless
to say, such a sudden and unexpected attack with a deadly
weapon on an unarmed and unsuspecting victim, which
made it impossible for the latter to flee or defend himself
before the fatal blow is delivered, is alevosia or treachery"
(p. 14, Appellee's brief).
In support of his contention, the Solicitor General cited the
cases of U.S. vs. Cornejo (28 Phil. 475); People vs.
Palomo (43 O.G. No. 10, 4190).
WE do not agree with the Solicitor General. Alevosia or
treachery is belied by the following testimony of Virgilio
Fidel, star witness for the prosecution:
COURT
Q What is the truth?
A The truth is that
when I saw that Floro
Rodil stabbed Lt.
Guillermo
Masana, Masana
parried him and his
head (Rodil's head)
bumped on the edge of
a table; that is why he
sustained an injury and
blood oozed from his
head (pp. 8-9, t.s.n.,
Jan. 20, 1972;
emphasis supplied).
Then, on cross-examination, the same witness testified:
ATTY. MUÑOZ
Q You said that Floro
Rodil's head was
bumped on the edge of
a table and you saw
blood oozing from his
head, is that correct?
A Yes, sir.
Q Who bumped the
head of Rodil on the
table?
A When Masana
parried his stab with
his hands he
26
accidentally bumped
his head on the table.
Q Is it not a fact that
Floro Rodil is much
bigger than Lt. Masana
A Yes, sir.
Q You mean, by simple
parrying, Floro Rodil
was pushed to the
extent that he bumped
his head on the table?
A The force of Lt.
Masana might have
been strong in
parrying.
xxx xxx xxx
Q When the head of
Rodil bumped on the
table, was Lt. Masana
already stabbed?
A It could be that he
was already stabbed
or he was not yet
stabbed.
pp 30-31, 33, t.s.n., Jan. 20, 1972;
emphasis supplied].
After a thorough analysis of the aforequoted portions of the
testimony of Virgilio Fidel, one of the prosecution
witnesses, WE can only conclude that the assailant and the
victim were indeed face to face when the stabbing took
place. As such the attack was not treacherous because the
victim was able to ward off the same with his hand. As a
matter of fact, the force he used in warding off the attack
was so strong that the accused bumped his head on a
table nearby, causing injuries to him which necessitated
medical treatment. In short, the attack on the victim was
made on the spur of the moment. The suddenness of the
attack does not by itself suffice to support a finding of
treachery (People vs. Torejas, et al., 43 SCRA 158, 167).
Besides, the record failed to show that the accused made
any preparation to kill his victim so as to insure the
commission of the crime, making it at the same time
possible or hard for the victim to defend himself or retaliate
(People vs. Saez, 1 11 Phil. 546, 553, citing the case of
People vs. Tumaob, 83 Phil. 738). Neither does it show that
the accused employed means directly and specially tending
to insure the killing without risk to himself. On the contrary,
it shows that the accused was easily within striking distance
of his three companions, two of whom were police officers.
Furthermore, there was an altercation between the accused
and the victim about the confiscation by the latter of the gun
belonging to the former, and at the moment when the victim
was about to stand up, the accused drew a knife from his
pocket and with it stabbed the victim in the chest. Clearly,
therefore, the impelling motive for the attack by appellant
on his victim was the latter's performance of official duty,
which the former resented. This kind of evidence does not
clearly show the presence of treachery in the commission
of the crime. Alevosia is not to be presumed, but must be
proved as conclusively as the act which it qualifies (People
vs. Abril, 51 Phil. 670, 675). This is so because in the
explicit language of the Revised Penal Code, alevosia or
treachery exists when the offender commits any of the
crimes against the person, employing means, methods, or
forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself
arising from the defense which the offended party might
make [Art. 14, par. 16, Revised Penal Code].
While the evidence definitely demonstrated that appellant
knew because the victim, who was in civilian clothing, told
him that he was an agent of a person in authority; he
cannot be convicted of the complex crime of homicide with
assault upon an agent of a person in authority, for the
simple reason that the information does not allege the fact
that the accused then knew that, before or at the time of the
assault, the victim was an agent of a person in authority.
The information simply alleges that appellant did attack and
stab PC Lt. Guillermo Masana while the latter was in the
performance of his official duties, ..." Such an allegation
cannot be an adequate substitute for the essential
averment to justify a conviction of the complex crime, which
necessarily requires the imposition of the maximum period
of the penalty prescribed for the graver offense. Like a
qualifying circumstance, such knowledge must be
expressly and specifically averred in the information;
otherwise, in the absence of such allegation, the required
knowledge, like a qualifying circumstance, although proven,
would only be appreciated as a generic aggravating
circumstance. Applying this principle, the attack on the
victim, who was known to the appellant as a peace officer,
could be considered only as aggravating, being "in
contempt or with insult to the public authorities" (Par. 1, Art.
XIV of the Revised Penal Code), or as an "insult or in
disregard of the respect due the offended party on account
of his rank, ..." (par. 3, Art. XIV, Revised Penal Code).
It is essential that the accused must have knowledge that
the person attacked was a person in authority or his agent
in the exercise of his duties, because the accused must
have the intention to offend, injure, or assault the offended
party as a person in authority or agent of a person in
authority (People vs. Villaseñor 35 SCRA 460 [19701,
People vs. Rellin 72 Phil. 1038 [1947]; US vs. Alvear et al.,
35 Phil. 626 [1916]).
In the case of People vs. Balbar (21 SCRA 1119, Nov. 29,
1967), it was held that failure to expressly alleged in the
information that the accused had knowledge that the
person attacked was a person in authority does not render
the information defective so long as there are facts alleged
therein from which it can be implied that the accused knew
that the person attacked was a person in authority. Thus,
the information for Direct Assault upon a person in authority
reads as follows:
The undersigned Assistant Provincial
Fiscal accuses Tiburcio Balbar of the
crime of Assault upon a Person in
Authority, committed as follows:
That on or about the 29th day of August,
1960, in Barrio Cumba, Municipality of
Lian, Province of Batangas, Philippines,
and within the jurisdiction of this
Honorable Court, the abovenamed
accused did then and there wilfully,
unlawfully and feloniously assault Miss
Ester Gonzales, a public school teacher
in the school bonding of Lian, duly
qualified and appointed as such and
while in the performance of her official
27
duties or on the occasion therefor, by
then and there pulling his dagger,
embraced and kissed. and repeatedly
trying to embrace and kiss the said
teacher, Miss Ester Gonzales. That the
crime was committed with the
aggravating circumstances of having
committed it inside the school building
and during school classes.
Contrary to law.
And the ruling of the Court was:
Direct assault is committed 'by any
person or persons who, without a public
uprising, ... shall attack, employ force, or
seriously intimidate or resist any person
in authority or any of his agents, while
engaged in the performance of official
duties, or on occasion of such
performance' (See Art. 148, Revised
Penal Code).
By express provision of law (Com. Act
No. 578, now part of Article 152 of the
Revised Penal Code, as amended by
Republic Act No. 1978), "teachers,
professors, and persons charged with the
supervision of public or duly recognized
private schools, colleges and universities
shall be deemed persons in authority, in
applying the provisions of article 148."
This special classification is obviously
intended to give teachers protection,
dignity, and respect while in the
performance of their official duties. The
lower court, however, dismissed the
information on the ground that there is no
express allegation in the information that
the accused had knowledge that the
person attacked was a person in
authority. This is clearly erroneous.
Complainant was a teacher. The
information sufficiently alleges that the
accused knew that fact, since she was in
her classroom and engaged in the
performance of her duties. He therefore
knew that she was a person in authority,
as she was so by specific provision of
law. It matters not that such knowledge
on his part is not expressly alleged,
complainant's status as a person in
authority being a matter of law and not of
fact, ignorance thereof could not excuse
non- compliance on his part (Article 3,
Civil Code). This article applies to all
kinds of domestic laws, whether civil or
penal (De Luna vs. Linatoc, 74 Phil 15)
and whether substantive or remedial
(Zulueta vs. Zulueta, 1 Phil. 254) for
reasons of expediency, policy and
necessity.
But, in the case of People vs. CFI of Quezon, Branch V (68
SCRA 305, Nov. 28, 1975), the information for Direct
Assault reads:
 That on or about the 17th day of January, position was that of a person in authority,
1974, at Barrio Languyin, Municipality of since 'this is a matter of law' thus:
Potillo, Province of Quezon, Philippines,
and within the jurisdiction of this Complainant was a
Honorable Court, the above-named teacher. The
accused, Ernesto Busto, Paulo Coralde, information sufficiently
Dony Grande and Jose Astjada each of alleges that the
whom was armed with a piece of wood, accused knew that
except Paulo Coraide conspiring and fact, since she was in
confederating together and mutually her classroom and
helping one another, did then and there engaged in the
wilfully, unlawfully and feloniously attack, performance of her
assault, box and strike with said pieces of duties. He therefore
wood one Rufino Camonias a knew that she was a
councilman of barrio Languyin of said person in authority, as
municipality, duly elected and qualified as she was so by specific
such while said councilman was engaged provision of law. It
in the actual performance of his duties. matters not that such
knowledge on `his part
The trial court dismissed the same on the ground that: is not expressly
alleged, complainant's
Of importance in this case is the lack of status as a person in
allegation in the complaint or in the authority being a
information that the offended party was matter of law and not
an agent of a person in authority and that of fact, ignorance
such fact was known to the accused. The whereof could not
absence of such allegation is fatal in this excuse non-
case." compliance on his part
(Article 3, Civil Code).
The People appealed to this Court through a petition for This article applies to
review on certiorari. all kinds of domestic
laws, whether civil or
penal (De Luna vs.
This Court held that the fiscal's proper course of action is
Linatoc, 74 Phil. 15)
not a petition for review on certiorari but the refiling of a
and whether
valid information against the accused, for the following
substantive or remedial
considerations:
(Zulueta vs. Zulueta, 1
Phil, 254) for reasons
The Solicitor General in his comment of of expediency, policy
November 4, 1975 duly observed that '(I)t and necessity.
is patent that the acquittal of the accused
herein is not on the merits. There is want
Since the 'decision' of acquittal was really
of factual finding upon which their
a mere dismissal of the information for
conviction or acquittal could have been
failure to charge an offense and was not
based.'
a decision on the merits with factual
findings as per the trial judge's own
It need only be observed that contrary to disavowal it is patent that the fiscal's
the fiscal's contention, the information proper course is not the present petition
was deficient in that it did not allege an but the refiling of a valid information
essential element of the crime of direct against respondents-accused, as herein
assault that the accused had knowledge indicated.
of or knew the position of authority held
by the person attacked, viz. that of a
ACCORDINGLY, the petition is
barrio councilman (and hence the agent
dismissed without prejudice to the refiling
of a person in authority under Article 152
of a valid information against
of the Revised Penal Code as amended
respondents-accused as hereinabove
by Republic Act No. 1978) [See U.S. vs.
indicated (emphasis supplied).
Alvear 35 Phil. 626; People vs. Rellin 77
Phil. 1038; Vol. 11, Padilla's Revised
Penal Code, 10th Ed., p. 225]. The ruling in the aforementioned case of People vs. CFI of
Quezon, etc., supra, applies to the instant case; because
the information in the former is strikingly similar to the
What was held in People vs. Balbar 21
information in the latter and does not allege facts from
SCRA, 119,1123, cited by the fiscal is
which inference can be deduced that the accused knew
that it is sufficient that the information
that the person assaulted is a person, or an agent of a
alleged that the accused knew the
person, in authority.
position of authority, held by the offended
party, in that case a public school
teacher, then engaged in the The aggravating circumstance of disregard of rank should
performance of her official duties, and be appreciated because it is obvious that the victim, PC. Lt.
that it is not necessary to allege further Masana Identified himself as a PC officer to the accused
that the accused also knew that such who is merely a member of the Anti-Smuggling Unit and

28
therefore inferior both in rank and social status to the
victim.
The term "rank" should be given its plain, ordinary
meaning, and as such, refers to a high social position or
standing as a grade in the armed forces (Webster's Third
New International Dictionary of the English Language
Unabridged, p. 1881); or to a graded official standing or
social position or station (75 CJS 458); or to the order or
place in which said officers are placed in the army and navy
in relation to others (Encyclopedic Law Dictionary, Third
Edition, Walter A. Shumaker and George Foster Longsdorf,
p. 90); or to the designation or title of distinction conferred
upon an officer in order to fix his relative position in
reference to other officers in matters of privileges,
precedence, and sometimes of command or by which to
determine his pay and emoluments as in the case of army
staff officers (Bouvier's Law Dictionary, Third Edition, p.
2804); or to a grade or official standing, relative position in
civil or social life, or in any scale of comparison, status,
grade, including its grade, status or scale of comparison
within a position (Vol. 36, Words and Phrases, Permanent
Edition, p. 100).
Thus, rank aggravated the killing of a staff sergeant by his
corporal (People vs. Mil 92 SCRA 89, 105-106, July 30,
1979), the killing of the Assistant Chief of Personnel
Transaction of the Civil Service Commission by a clerk
therein (People vs. Benito, 62 SCRA 351, 357-358, Feb.
13, 1975), the murder by a pupil of his teacher (U.S. vs.
Cabling, 7 Phil. 469. 474; People vs. Aragon & Lopez, 107
Phil. 706, 709), the murder of a municipal mayor (People
vs. Lopez de Leon, et al., 69 Phil. 298), the murder -of a
city chief of police by the chief of the secret service division
(People vs. Hollero 88 Phil. 167), assault upon a 66-year
old District Judge of the Court of First Instance by a justice
of the peace (People vs. Torrecarreori CA 52 OG 7644),
the killing of a Spanish consul by his subordinate — a mere
chancellor (People vs. Godinez, 106 Phil. 597, 606607),
and the killing of an army general (People vs. Torres, et al.,
L-4642, May 29, 1953).
As explained by Mr. Justice Mariano Albert, then of the
Court of Appeals, those "generally considered of high
station in life, on account of their rank (as well as age or
sex), deserve to be respected. Therefore, whenever there
is a difference in social condition between the offender and
the offended party, this aggravating circumstance
sometimes is present" (Albert M.A. — The Revised Penal
Code Annotated, 1946 Ed., p. 109).
The difference in official or social status between a P.C.
lieutenant and a mere member of an anti-smuggling unit, is
patent.
If the accused herein were charged with the complex crime
of murder with assault against an agent of a person in
authority, and not merely murder, then the aggravating
circumstance of disregard of rank or contempt of or insult to
public authority cannot be appreciated as aggravating
because either circumstance is inherent in the charge of
assault against a person in authority or an agent of a
person in authority. But in the case at bar, the appellant is
accused of murder only. Consequently, either aggravating
circumstance should be considered in the imposition of the
penalty.
Thus, in the following cases where the charge was merely
murder or frustrated murder, the aggravating circumstance
of disregard of rank was appreciated:
29
(1) People vs. Benito, supra — the appellant, a clerk in the
Civil Service Commission, was charged with and convicted
of the murder of the assistant chief of the personnel
transaction of the said Commission;
(2) People vs. Torres, et al., supra — the appellants were
charged with and convicted of murder for the death of Army
Col. Valentin Salgado and attempted murder for the injuries
inflicted on Army Gen. Mariano Castaneda;
(3) People vs. Valeriano, et al. — appellants were accused
and convicted of robbery with homicide for the killing of
District Judge Bautista of the Court of First Instance of
Pampanga [90 Phil. 15, 34-35]; and
(4) People vs. Hollero supra — where the accused chief of
the Secret Division of the Bacolod City Police Department
was convicted of murder for the killing of the chief of police.
The aggravating circumstance of contempt of, or insult to,
public authority under paragraph 2 of Article 14 of the
Revised Penal Code can likewise be appreciated in the
case at bar.
The evidence of the prosecution clearly established that
Chief of Police Primo Panaligan of Indang was present as
he was taking his lunch in the same restaurant when the
incident occurred.
As a matter of fact, the said chief of police was the one who
embraced or grabbed the accused from behind, wrested
the dagger from him and thereafter brought him to the
municipal building of Indang. And appellant admittedly
knew him even then as the town chief of police, although
he now claims that he went to the municipal building to
surrender to the chief of police who was not allegedly in the
restaurant during the incident.
While it is true that in the cases of U.S. vs. Rodriguez, et al.
(19 Phil. 150, 157-158), People vs. Siojo (61 Phil. 307,
317), and People vs. Verzo (21 SCRA 1403), this Court
ruled that the term public authority refers to a person in
authority and that a PC lieutenant or town chief of police is
not a public authority but merely an agent of a person in
authority; there is need of re-examining such a ruling since
it is not justified by the employment of the term public
authority in aforesaid paragraph 2 of Article 14 instead of
the term person in authority which is specifically used in
Articles 148 and 152 of the Revised Penal Code. There is
no extended reasoning of the doctrine enunciated in the
aforesaid three (3) cases why the phrase public
authority should comprehend only persons in authority. The
lawmaker could have easily utilized the term "persons in
authority" in the aforesaid paragraph 2 of Article 14 in much
the same way that it employed the said phrase in Articles
148 and 1452. The lawmaker must have intended a
different meaning for the term public authority, which may
however include, but not limited to persons in authority.
Under the decided cases, a municipal mayor, barrio
captain, barrio lieutenant or barangay captain is a person in
authority or a public authority. Even a public school teacher
is now considered a person in authority under CA 578
amending Article 152 of the Revised Penal Code
(Sarcepudes vs. People, 90 Phil 228). So is the town
municipal health officer (People vs. Quebral et al., 73 Phil
640), as well as a nurse, a municipal councilor or an agent
of the Bureau of Internal Revenue (People vs. Yosoya, CA-
GR No. 8522-R, May 26, 1955; People vs. Reyes, et al
O.G.S. 11 p. 24).
The chief of police should therefore be considered a public
authority or a person in authority; for he is vested with
jurisdiction or authority to maintain peace and order and is
specifically duty bound to prosecute and to apprehend
violators of the laws and municipal ordinances, more than
the aforementioned officials who cannot prosecute and who
are not even enjoined to arrest malefactors although
specifically mentioned as persons in authority by the
decided cases and by Article 152 of the Revised Penal
Code as amended by R.A. 1978 of June 22, 1957. The
town chief of police heads and supervises the entire police
force in the municipality as well as exercises his authority
over the entire territory of the municipality, which is patently
greater than and includes the school premises or the town
clinic or barrio, to which small area the authority or
jurisdiction of the teacher, nurse, or barrio lieutenant,
respectively, is limited.
With two aggravating circumstances and no mitigating
circumstance, the appellant should therefore be
condemned to suffer the maximum period of reclusion
temporal the penalty prescribed for homicide.
WHEREFORE, HAVING BEEN FOUND GUILTY BEYOND
REASONABLE DOUBT OF HOMICIDE AGGRAVATED BY
CONTEMPT FOR OR INSULT TO A PUBLIC AUTHORITY
OR DISREGARD OF THE RESPECT DUE THE
OFFENDED PARTY ON ACCOUNT OF HIS RANK,
APPELLANT FLORO RODIL IS HEREBY SENTENCED
TO SUFFER AN INDETERMINATE TERM OF
IMPRISONMENT RANGING FROM 12 YEARS OF
RECLUSION TEMPORAL AS MAXIMUM.
THUS MODIFIED, THE JUDGMENT APPEALED FROM IS
HEREBY AFFIRMED IN ALL OTHER RESPECTS.
Aquino, Concepcion Jr., Fernandez and Guerrero, JJ.,
concur.
Fernando, C.J., concur in the result.
Separate Opinions
TEEHANKEE, J., concurring:
I concur with the judgment's imposition of the maximum
penalty for homicide, although I join Mme. Justice Herrera's
partial dissent insofar as she holds that the aggravating
circumstance of contempt of or insult to the public
authorities may not be appreciated. However, disregard of
rank was properly appreciated as a generic aggravating
circumstance, and hence the maximum penalty for
homicide is properly imposed in the absence of any
mitigating circumstance.
Barredo, J., concur.
MELENCIO-HERRERA, J., dissenting:
I believe that neither the aggravating circumstance of
contempt of, or insult to the public authorities under Article
14, par. 2 of the Revised Penal Code, nor that of insult or
disregard of the respect due to the offended party on
account of his rank under Article 14, par. 3 of the same
Code, is applicable to the present case.
30
1. For the circumstance of contempt of, or with insult to,
public authorities to be considered aggravating, it is
essential (a) that the crime is committed in the presence of
a public authority, not a mere agent of the authorities
(People vs. Siojo, 61 Phil. 307 [19351; People vs. Verzo, et
al 21 SCRA 1403 [1967]; and (b) that the public authority is
engaged in the exercise of his functions and is not the
person against whom the crime is committed (People vs.
Siojo, citing U.S. vs. Rodriguez, 19 Phil. 150 [191];
Decision of the Supreme Court of Spain dated January 24,
1881, 1 Viada 310), nor the one injured by the commission
of the offense (People vs. Pardo, 79 Phil. 568 [1947]).
In this case, Lt. Guillermo Masana of the Philippine
Constabulary is not a public authority nor a person in
authority as these terms are defined by Article 152, par. 1
of the Revised Penal Code for he is not directly vested with
jurisdiction, that is, power or authority to govern and
execute the laws or to hear and decide a cause; he is a
mere agent of a person in authority as defined by Article
152, par. 2 of the Revised Penal Code, he being a member
of the Philippine Constabulary which is a government
military agency in charge of the maintenance of public
order and the protection and security of fife and property. In
fact, the Decision itself calls him an agent of a person in
authority (p. 13).
And even if Lt. Masana were a person in authority, this
aggravating circumstance cannot be taken into account
because it is he himself who is the offended party (People
vs. Siojo, supra).
2. Neither can the second circumstance, that of disregard
of the respect due to rank, be made to apply. It is not the
existence alone of rank of the offended party that
determines the presence of this aggravating circumstance.
There must be a difference in the social condition of the
offender and the offended party.
El concepto de dignidad en su aspects
general no esta constituido solo por el
caracter de authoridad solo por la funcion
publica o cargo que desempene el
ofendido sino tambien pro la diferencia
de condicion social entre la victims y el
ofensor ... (Cuello Calon, Derecho Penal
Decimotercera edicion Tomo I, p. 554).
Where the offender and the offended party are of the same
rank, this aggravating circumstance does not apply.
Las personas constituidas en dignidad, y
que por esta razon merecen mayor
respeto, son las que generalmente se
consideran por todo el mundo como
superiores o mas elevadas que el que
comets el delito: tales son los sacerdotes
y las Autoridades respecto de los
particulares, los maestros con relacion a
sus discipulos, los guardadores respecto
de sus pupilos, etc. Siempre, pues, que
hay diferencia de condicion social entre
el ofensor y el ofendido, concurrira la
agravante de este numero, mas no
cuando hay igualdad Asi pues, si un
Sacerdote o un Magistrado calumnian a
otro Sacerdote o Magistrado
respectivamente, no existira la
circunstancia de agravacion que
 comentamos. (Viada Codigo Penal
Reformado de 1870, Tomo II, p. 316).
The provision contemplates such a different in rank as that
of a teacher where the offender is a pupil (U.S. vs. Cabiling,
7 Phil. 469 [1907]) (although a teacher is now considered a
person in authority); a Judge where the offender is a private
citizen (People vs. Valeriano, et al., 90 Phil. 15 [1951]);
a General of the Philippine Army where the offender is a
private citizen (People vs. Torres, et al., L- 4642, May 29,
1953); a Chief of Police, a superior of the accused, who
was chief of a division of the secret police (People vs.
Hollero 88 Phil. 167 [1951]); a ranking official of the Civil
Service Commission where the offender is a clerk thereat
(People vs. Benito, 74 SCRA 271 [1976]); a Consul who
was killed by a chancellor in the Consulate, who is a
subordinate (People vs. Martinez Godinez, 106 Phil 597
[1959]).
In the case at bar, the difference in the social condition and
rank of the victim, a Lieutenant in the Philippine
Constabulary, and that of the accused, who is a member of
an anti-smuggling unit and an officer of the Anti-Communist
League of the Philippines, is not of such a degree as to
justify consideration of disrespect of rank due to the
offended party as an aggravating circumstance.
In the absence of the two aggravating circumstances
discussed above or of any mitigating circumstance, the
penalty imposable is reclusion temporal in its medium
period, and the accused should be sentenced to an
indeterminate term of imprisonment ranging from ten (10)
years of prision mayor, as minimum, to seventeen (17)
years of reclusion temporal as maximum.
Abad Santos and De Castro, JJ., concur.
Separate Opinions
TEEHANKEE, J., concurring:
I concur with the judgment's imposition of the maximum
penalty for homicide, although I join Mme. Justice Herrera's
partial dissent insofar as she holds that the aggravating
circumstance of contempt of or insult to the public
authorities may not be appreciated. However, disregard of
rank was properly appreciated as a generic aggravating
circumstance, and hence the maximum penalty for
homicide is properly imposed in the absence of any
mitigating circumstance.
Barredo, J., concur.
MELENCIO-HERRERA, J., dissenting:
I believe that neither the aggravating circumstance of
contempt of, or insult to the public authorities under Article
14, par. 2 of the Revised Penal Code, nor that of insult or
disregard of the respect due to the offended party on
account of his rank under Article 14, par. 3 of the same
Code, is applicable to the present case.
1. For the circumstance of contempt of, or with insult to,
public authorities to be considered aggravating, it is
essential (a) that the crime is committed in the presence of
31
a public authority, not a mere agent of the authorities
(People vs. Siojo, 61 Phil. 307 [19351; People vs. Verzo, et
al 21 SCRA 1403 [1967]; and (b) that the public authority is
engaged in the exercise of his functions and is not the
person against whom the crime is committed (People vs.
Siojo, citing U.S. vs. Rodriguez, 19 Phil. 150 [191];
Decision of the Supreme Court of Spain dated January 24,
1881, 1 Viada 310), nor the one injured by the commission
of the offense (People vs. Pardo, 79 Phil. 568 [1947]).
In this case, Lt. Guillermo Masana of the Philippine
Constabulary is not a public authority nor a person in
authority as these terms are defined by Article 152, par. 1
of the Revised Penal Code for he is not directly vested with
jurisdiction, that is, power or authority to govern and
execute the laws or to hear and decide a cause; he is a
mere agent of a person in authority as defined by Article
152, par. 2 of the Revised Penal Code, he being a member
of the Philippine Constabulary which is a government
military agency in charge of the maintenance of public
order and the protection and security of fife and property. In
fact, the Decision itself calls him an agent of a person in
authority (p. 13).
And even if Lt. Masana were a person in authority, this
aggravating circumstance cannot be taken into account
because it is he himself who is the offended party (People
vs. Siojo, supra).
2. Neither can the second circumstance, that of disregard
of the respect due to rank, be made to apply. It is not the
existence alone of rank of the offended party that
determines the presence of this aggravating circumstance.
There must be a difference in the social condition of the
offender and the offended party.
El concepto de dignidad en su aspects
general no esta constituido solo por el
caracter de authoridad solo por la funcion
publica o cargo que desempene el
ofendido sino tambien pro la diferencia
de condicion social entre la victims y el
ofensor ... (Cuello Calon, Derecho Penal
Decimotercera edicion Tomo I, p. 554).
Where the offender and the offended party are of the same
rank, this aggravating circumstance does not apply.
Las personas constituidas en dignidad, y
que por esta razon merecen mayor
respeto, son las que generalmente se
consideran por todo el mundo como
superiores o mas elevadas que el que
comets el delito: tales son los sacerdotes
y las Autoridades respecto de los
particulares, los maestros con relacion a
sus discipulos, los guardadores respecto
de sus pupilos, etc. Siempre, pues, que
hay diferencia de condicion social entre
el ofensor y el ofendido, concurrira la
agravante de este numero, mas no
cuando hay igualdad Asi pues, si un
Sacerdote o un Magistrado calumnian a
otro Sacerdote o Magistrado
respectivamente, no existira la
circunstancia de agravacion que
comentamos. (Viada Codigo Penal
Reformado de 1870, Tomo II, p. 316).
The provision contemplates such a different in rank as that
of a teacher where the offender is a pupil (U.S. vs. Cabiling,
7 Phil. 469 [1907]) (although a teacher is now considered a
person in authority); a Judge where the offender is a private
citizen (People vs. Valeriano, et al., 90 Phil. 15 [1951]);
a General of the Philippine Army where the offender is a
private citizen (People vs. Torres, et al., L- 4642, May 29,
1953); a Chief of Police, a superior of the accused, who
was chief of a division of the secret police (People vs.
Hollero 88 Phil. 167 [1951]); a ranking official of the Civil
Service Commission where the offender is a clerk thereat
(People vs. Benito, 74 SCRA 271 [1976]); a Consul who
was killed by a chancellor in the Consulate, who is a
subordinate (People vs. Martinez Godinez, 106 Phil 597
[1959]).

In the case at bar, the difference in the social condition and

rank of the victim, a Lieutenant in the Philippine
Constabulary, and that of the accused, who is a member of
an anti-smuggling unit and an officer of the Anti-Communist
League of the Philippines, is not of such a degree as to
justify consideration of disrespect of rank due to the
offended party as an aggravating circumstance.

In the absence of the two aggravating circumstances

discussed above or of any mitigating circumstance, the
penalty imposable is reclusion temporal in its medium
period, and the accused should be sentenced to an
indeterminate term of imprisonment ranging from ten (10)
years of prision mayor, as minimum, to seventeen (17)
years of reclusion temporal as maximum.

Abad Santos, and De Castro, JJ., concur.

32
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-40330 November 20, 1978
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMADO DANIEL alias "AMADO ATO", accused-
appellant.
Eraulio D. Yaranon for appellant.
Solicitor General Felix V. Makasiar, Assistant Solicitor
General Antonio G. Ibarra and Solicitor Rosalio A. de Leon
for appellee.
MUÑOZ PALMA, J:
This case originated from the Court of First Instance of
Baguio City by virtue of a complaint filed by 13-year old
Margarita Paleng accusing Amado Daniel alias "Amado
Ato" of rape alleged to have been committed as follows:
That on or about the 20th day of
September, 1965, in the City of Baguio,
Philippines, and within the jurisdiction of
this Honorable Court, the herein
accused, armed with a sharp instrument
and by means of force and intimidation,
did then and there willfully, unlawfully and
feloniously have carnal knowledge of the
undersignedcomplaint, against her will,
and in her own room situated at No. 25
Interior, Pinsao, Guisad, Baguio City.
That in the commission of the crime, the
aggravating circumstance that it was
committed in the dwelling of the offended
party, the latter not having
givenprovocation for it, is present. (p. 1,
CFI record)
The trial court, presided then by Hon. Feliciano Belmonte,
after due trial rendered its decision on May 30, 1966,
finding the accused guilty and sentencing him to suffer "not
more than TWELVE (12) YEARS and ONE (1) DAY
of reclusion temporal and not less than SIX (6) YEARS and
ONE (1) DAY of prision mayor, and to pay the costs." 1
His motion for reconsideration and new trial having been
denied, accused filed a notice of appeal; forthwith the case
was forwarded to the Court of Appeals.
On September 23, 1974, the Court of Appeals through its
Tenth Division rendered a decision the dispositive portion
of which follows:
PREMISES CONSIDERED, We find that
the guilt of the accused Amado Daniel
has been proven beyond reasonable
doubt, and he should accordingly suffer
the penalty for the crime herein charged.
We find, however, that the sentence
imposed the accused in the judgment
33
appealed from is not in accordance with
law.
Republic Act No. 4111, which took effect
on June 20, 1964, amended Article 335
of the Revised Penal Code, providing
that —
The crime of rape shall
be punished by
reclusion perpetua.
Whenever the crime of
rape is committed with
the use of a deadly
weapon or by two or
more persons, the
penalty shall
be reclusion
perpetua to death.
Under Section 17 of Chapter 11 of the
Judiciary Act of 1948 (Republic Act No.
296, as amended) —
The Supreme Court shall have exclusive
jurisdiction to review, revise, reverse,
modify or affirm on appeal, as the law or
rules of court may provide, final
judgments and decrees of inferior courts
as herein provided, in —
(1) All criminal cases involving offenses
for which the penalty imposed is death or
life imprisonment; ...
WHEREFORE, We hereby certify this
case to the Supreme Court for
appropriate further proceedings pursuant
to law. 2
By virtue of the foregoing decision of the Court of Appeals
the case was certified to this Court and in a Resolution of
March 6, 1975, the same was ordered docketed. 3
Preliminary question —
The certification of the case to Us poses a preliminary
question which strikes at the very root of a long standing
practice and procedure evoked for the last forty years or so
since the creation of the Court of Appeals. 4
Is the Supreme Court with jurisdiction to act on an appeal in
a criminal case where the offense is punishable
by reclusion perpetua or death certified to it by the Court of
Appeals with findings of facts and of the guilt of the
accused, but without imposing the penalty of reclusion
perpetua or death on the appellant pursuant to Rule 124,
Section 12, paragraph 2, of the Rules of Court?5
Mr. Chief Justice Fred Ruiz Castro, joined by other
,Justices, expresses the view that for this Court to acquire
jurisdiction over the appeal, the decision before Us must
have imposed on the appellant the penalty either
of reclusion perpetua or death as the facts warranted.
The rest of the Justices together with the writer of this
Opinion, believe otherwise and hold the view that the
dispositive portion of the decision as written and rendered
is in accordance with the Constitution and the law, and
vests jurisdiction on the Court to act on the appeal.
A. In People v. Ramos, decided on November 28, 1947, 6 a
case was certified to this Court by the Court of Appeals
without findings of facts and simply on the ground that it
was "on the opinion that the penalty that should be
imposed ill this case is reclusion perpetua, as
recommended by the Solicitor-General, and not reclusion
temporal, as imposed by tile lower court." The question
arose as to the proper procedure to be followed by the
appellate court in certifying cases to this Court under
Section 145-K of the Revised Administrative Code as
amended by Republic Act No. 52 which read:
Whenever in any criminal cases
submitted to a division the said division
should be of the opinion that the penalty
of death or life imprisonment should be
imposed, the said Court shall refrain from
entering judgment thereon and shall
forthwith certify the case to the Supreme
Court for final determination, as if the
case had been brought before it on
appeal.
In disposing of the issue several matters came up which
evoked different, and We may say, strong reactions from
the Justices then composing the Court, but for brevity we
shall not dwell on them. Simply stated, it is was ruled that
the Court of Appeals was duty bound to make its findings of
facts to support its opinion that the penalty to the imposed
upon the appellant was either life imprisonment or death so
as to bring the case within the jurisdiction of this Court.
From the Resolution written for the Court by then Mr. Chief
Justice Manuel V. Moran, We quoted the following pertinent
portions:
The jurisdiction of this Court predicated
upon the opinion of the Court of Appeals,
as provided in the above-quoted
provisions of the law, must of necessity
defend upon the correctness of that opi
nion There is nothing in the law
precluding this Court from exercising ing
its authority to pass upon such question
xxx
which concerns its own jurisdiction. And
in order that this Court may exercise its
power of review the Court of appeals is
bound to make in its order f certification
such findings of facts as are necessary to
support its conclusion that either life
imprisonment or death is the penalty to
be imposed. This is indeed covered by
Rule 52, section 3, which provides th
where a court to which an appeal has
been taken has no appellate jurisdiction
over lic case and it certifies the same to
the proper court, it must do so "with a
specific and clear statement of grounds
therefor." the requirement of with and
specific grounds is precisely a device to
prevent erroneous transmissions of
jurisdiction from a lower to a superior
court.
Furthermore, the words "shall refrain
from entering judgment thereon"
appearing in the provision above quoted,
34
are sufficient indication that the Court of
Appeals, at the time of certifying the case
to this Court, had already examined the
evidence and was ready to render
judgment on the merits, but having found
from the facts established by proof that
the penalty to be imposed is either death
or life imprisonment, instead of entering
judgment thereon , it certifies the case to
the Supreme Court for final
determination. Since the Certification is
the only ground for determining our
jurisdiction, it must contain not only
conclusions of law but also findings of
fact, the latter being more important than
the former for they supply the real basis
for determining jurisdiction ...
The instant case cannot be compared
with cases coming directly from a Court
of First Instance wherein either life
imprisonment or death penalty is
imposed, for in such cases, if we assume
jurisdiction even where the judgment
appears to be erroneous on its face, it is
because the Court of First Instance has
already exhausted its jurisdiction by
rendering judgment on the merits
containing both findings of fact and
conclusions of law, and under such
circumstance it is more practical for the
administration of the law that this Court
should exercise its appellate jurisdiction
by examining the evidence and
correcting all errors both of fact and of
law that might have been committed by
the trial court. But here, the Court of
Appeals is refraining from rendering
judgment on the merits and is refusing to
complete the exercise of appellate
jurisdiction because it believes that such
jurisdiction belongs to the Supreme Court
and thus, it proceeds to transfer the case
to this Court. lt is in that transfer that we
believe we may intervene in order to
prevent an erroneous transfer,
xxx xxx
Section 145-K of the Administrative Code
is merely a method designed to make
effective the appellate jurisdiction of both
the Court of Appeals and this Court, as
defined by law. According to the law of
jurisdiction (section 138, Revised
Administrative Code, as amended by
Commonwealth Acts Nos. 3 and 259),
offenses, for which the penalty imposed
is death or life imprisonment, including
offenses arising from the same
occurrence or committed on the same
occasion, come within the appellate
jurisdiction of the Supreme Court, and
the remaining offenses fall within the
appellate jurisdiction of the Court of
Appeals ...
We are of the opinion and so hold,
therefore, that in a case like this, the
Court of Appeals, in certifying it to this
Court, must state its findings of fact
 necessary to support its conclusion that
the penalty to be imposed is either life
imprisonment or death. While this Court
will not review the findings of fact, it will
pass upon the correctness of the legal
conclusions derived therefrom. And if this
Court finds the conclusions to be correct,
it will assume jurisdiction. If it finds them
to be wrong, the case will be returned to
the Court of Appeals. (pp. 613-616,
supra, emphasis supplied)
In Ramos, the case was accepted because the Court
considered that there was substantial compliance with the
law as the order of certification made reference to the
opinion and recommendation of the Solicitor General
whose brief contained sufficient findings of fact to warrant
the conclusion that life imprisonment should be imposed
upon the appellant. Justices Paras, Feria, Pablo, Hilado
and Briones concurred in the Resolution.
Justice Gregorio Perfecto in a separate opinion concurred
with the principle that the Court of Appeals is bound to
make its findings of fact and study the evidence so as to
determine whether the appellant is guilty or not, but
dissented from that portion of the Resolution which
accepted the case as he was of the opinion that the case
should have been remanded to the Court of Appeals. 7
Justice Pedro Tuason wrote a separate opinion and
dissented from the majority insofar as it held that it was
necessary for the Court of Appeals or a division thereof to
state the reasons for its opinion that death penalty or life
imprisonment should be imposed. He particularly dissented
from statements that if this Court found the conclusions of
the Court of Appeals to be wrong, the case should be
returned to the Court of Appeals for further proceedings.
According to Justice Tuason when a case is certified to this
Court it is placed, by force of the Court of Appeals' opinion,
within the jurisdiction of the Supreme Court for the latter to
decide the appeal on the merits; findings of fact of the
Court of Appeals are neither essential nor necessary.
Justice Tuason was joined in his dissent by Justice Cesar
Bengzon who later became Chief Justice of this Court and
Justice Sabino Padilla.8
B. The theory is now advanced that We go one step further
than that ruled in Ramos — that is, for the Court of Appeals
not only to make its findings of fact and finding of guilt, but
also to impose the penalty either of reclusion perpetua or
death as the facts warrant in order that We may exercise
Our appellate jurisdiction.
We believe that such a judicial ruling will be violence to the
letter and spirit of the law which confers on the Supreme
Court the exclusive prerogative to review on appeal and
impose the corresponding penalty in criminal cases where
the offense is punishable by reclusion perpetua or death.
Both the 1935 and the 1973 Constitutions vest upon the
Supreme Court appellate jurisdiction, in "(A)ll criminal
cases in which the penalty imposed is death or life
imprisonment."9 This jurisdiction is constitutional: the
Supreme Court ma not be deprived thereof by, Congress
then, now the National Assembly. 10
Section 17 of the Judiciary Act 1948 as amended in turn
provides that the foregoing appellate jurisdiction of the
Supreme Court is exclusive.
35
Basically therefore, the objection to this new theory is one
of jurisdiction - the lack of jurisdiction of the Court of
Appeals to impose the penalty of reclusion perpetua or
death.
The present controversy springs from the construction
given to the second paragraph of Sec. 12, Rule 124, Rules
of Court 11 more particularly to the use of the phrases
"should be imposed" and "shall refrain from entering
judgment", viz:
xxx xxx xxx
Whenever in any criminal case submitted
to a division the said division should be of
the opinion that the penalty of death or
life imprisonment should be imposed, the
said court shall refrain from entering
judgment thereon and shall forthwith
certify the case to the Supreme Court for
final determination, as if the case had
been brought before it on appeal.
(Emphasis supplied)
As we construe it, the Rule cited does not
charge the appellate court with the duty
of imposing the penalty of reclusion
perpetua or death. All that the Rule
requires is that should the Court of
Appeals be of the opinion that death or
life imprisonment should be imposed, it
"shall refrain from entering judgment
thereon ...
The clause "entering judgment" means "rendering
judgment". Thus, the Court of Appeals shall refrain from
rendering judgment if and when it is of the opinion
that reclusion perpetua or death is the proper penalty for
the crime committed. This can be the only logical
interpretation considering that the Court of Appeals is
without jurisdiction to impose the penalties concerned. The
phrase "entering judgment" is not to be equated with an
"entry of judgment" as the latter is understood in Rule 36 in
relation to Section 8, Rule 121 and Section 16, Rule 124,
Rules of Court. "Entry of judgment" presupposes a final
judgment — final in the sense that no appeal was taken
from the decision of the trial or appellate court within the
reglementary period. A judgment in a criminal case
becomes final after the lapse of the period for perfecting an
appeal, or when the sentence has been partially or totally
satisfied or served, or the defendant has expressly waived
in writing his right to appeal.12 It is only then that there is a
judgment which is to be entered or recorded in the book of
entries of judgments. 13
It would be incongruous or absurd to state that Section 12,
second paragraph, Rule 124 enjoins the Court of Appeals
from entering judgment" when there is no judgment to be
entered .
But then the argument is advanced — what is there to be
reviewed by the Supreme Court when the decision being
certified contains no penalty or sentence, as distinguished
from appeals from the Court of First Instance where there is
a complete judgment to be passed upon. The answer is
simple. Section 12 itself states that the case is for final
determination by the Supreme Court as if the case had
been brought before it on appeal. Hence, based on the
findings of facts of the appellate court which as a rule are
conclusive and binding on Us, this Court "will pass upon
the correctness of the legal conclusions derived therefrom"
(People v. Ramos, supra) and impose the correct penalty
for the offense committed.
We realize that had Section 12, Rule 124 used the phrase
shall refrain from rendering judgment " there would be no
cause for any ambiguity. We can only assume that the
intent of the Rule was so clear to the Court when it drafted
the Revised Rules of Court that it did not envision a
possible contrary or adverse interpretation or ambiguity in
its implementation under the phraseology used. It is
incumbent upon Us to construe the Rule in the spirit and
intent it was conceived and in harmony with pertinent laws
and jurisprudence.
On the merits of the appeal —
1. Generally in a case of this nature, the evidence of the
prosecution consists solely of the testimony of the offended
party. Here We have the declaration of the victim, who at
the time of the incident was a little less than 13 years of
age, on the basis of which the trial court found the charge
of rape duly established. The happenings are briefly
summarized in the People's brief as follows:
The offended party in this case is
Margarita Paleng who was born on
November 20, 1952 (p. 3, t.s.n.,
Manipon). She is a native of
Balangabang Tublay, Mountain Province
(pp. 3, 12, Id.) At the time of the incident
in question on September 20, 1965,
complainant was temporarily boarding at
a house located at Pinsao Guisad Baguio
City, as she was then a first year high
school student at the Baguio Eastern
High School (pp. 3, 12, 20, Id.; p. 36,
Estigoy).
On September 20, 1965, at about three
o'clock in the afternoon, she had just
arrived in the City from Tublay in a
Dangwa bus (p. 3, Manipon). Because it
was then raining and the bus was parked
several meters away from the bus
station, she waited inside the bus (pp. 3,
22, Id.). After about three minutes of
waiting, the accused came and started
molesting her by inquiring her name and
getting hold of her bag (pp. 4, 22-24, Id.).
But she did not allow him to hold her bag
(p. 24, Id.). She called the attention of the
bus driver and the conductor about the
actuation of the accused, but it seemed
that the former were also afraid of him
(pp. 24-25, Id.).
Despite the rain, she left the bus and
went to ride in a jeep parked some 100
meters away (pp. 4, 25, Id.). The
accused closely followed her (p. 4, Id.).
When the jeep started to go, the accused
also rode and sat beside her (p. 5, Id.).
When the jeep reached Guisad, she
alighted on the road but she still had to
negotiate a distance of ten meters (p.
5, Id.). The accused also alighted and
again he tried to carry her bag (p. 5, Id.).
Although he was not allowed to carry her
36
bag, her was adamant in following her (p.
5, Id.).
Reaching her boarding house, she
opened the door and was about to close
it when the accused dashed in and
closed the door behind him (pp. 31-
32, Id.). When she entered her room, the
accused went in (p. 7, Id.). He pulled a
dagger eight inches long and threatened
her: "If you will talk, 1 will kill you". (p.
7, Id.). Margarita was stunned into
silence because of her fear (p. i Id.).
Thereupon, the accused held her hair
with his left hand and forced her Lo lie
down in bed (p. 7, Id.) He also placed his
left hand with a handkerchief in
Margarita's mouth, at the same time
holding the dagger and her neck with his
right hand (pp. 7-8, Id.). She was forcibly
made to the down and, at this moment,
the accused removed the buttons of his
pants (p. 8, Id.). He then put down the
dagger on tile bed (p. 8, Id.). Her
attempts to extricate herself from the
accused was to no avail assile was only
4 ft. and 8 inches tall and weighed about
95 to 100 pounds (p. 35, Id.) while the
accused was 5 ft. and 7 inches tall and
weighed about 126 pounds (pp. 8,
59, Id.). He then held his penis (pp. 8.
36, Id.), used his thigh to separate the
legs of Margarita (p. 38, Id.). tried, but
failed. to remove her panty (p. 36, Id.).
He nonetheless guided his penis and
inserted it inside the vagina of the
complainant after prying open the part of
her panty covering her private parts (pp.
9, 36, Id.). Then he succeeded in having
carnal knowledge of the offended party
(p. 9, Id.). Margarita lost consciousness.
When she recovered, he was already
gone (p. 9, Id.).
The following morning, her father came
to visit her. She confided to him the
terrible misfortune which befell her (pp. 9-
10, Id.). She was immediately brought to
the Baguio General Hospital where she
was examined (p. 10, Id.). Then they
proceeded to the Police Department. The
Chief of Police accompanied them to the
Health Center where she was again
examined by Dr. Perfecto O. Micu who
thereafter submitted his medical report
(Exh. C; p. 3, rec.; pp. 11, 14-16, Id.).
Margarita and her father gave their
respective statements before the police
authorities (Exh. B, pp, 5-6, rec.; p. 11,
t.s.n.). She signed her criminal complaint
prepared by the Fiscal's Office of Baguio
(Exh. A; p. 1, rec.; p. 11, t.s.n. (pp. 2-4,
Brief at p. 83, rollo
The City Medico-Legal Officer, Dr. Perfecto Micu was
called to the witness stand and he testified on the physical
examination conducted on the person of Margarita Paleng
on September 23, 1965 and his findings as contained in the
report were as follows:
 1. Hymen-circular-stellate type with
healing lacerations at 6:00, 8:00, 9:00
and 11:00 o'clock positions in the face of
a clock.
2. Contusions at the base of the hymen
at 3:00 & 9:00 o'clock regions.
3. Vaginal Orifice - tight and hardly
admits 2 fingers.
4. Vaginal wall — tight and vaginal folds
are prominent.
5. Vaginal smear — negative for
spermatozoa and for gram negative intra
or extra-cellular diplococci. (Exh. "C", p.
3, CFI record)
Dr. Micu concluded that "defloration was recent". He further
declared that the condition of the hymen revealed that
Margarita Paleng was a virgin before the incident
complained of, and that the number of lacerations and
contusions at the base of the hymen indicated the degree
of force exerted to effect the sexual act. 14
For his defense, appellant claimed that he and Margarita
were acquainted with each other since 1963, and there
were occasions when they rode together in a bus; that the
incident of September 20, 1965 inside the room of
Margarita was with the latter's consent, and in fact it was
the second time he had carnal knowledge with her, the first
time having occurred inside a shack; that he promised
Margarita that he would marry her, but to his surprise, she
filed the instant complaint against him. 15
2. The issue being one of credibility, We find no cogent
reasons for discarding the findings of facts of the trial court
which were sustained by the Court of Appeals after the
latter had examined the evidence as a result of which it
certified the case to this Court.
Appellant assails the veracity of the testimony of the
complainant. But what possible motive could a thirteen-year
old girl barely in her teens have in fabricating a story that
could only bring down on her and her family shame and
humiliation and make her an object of gossip and curiosity
among her classmates and the people of her hometown. It
cannot be denied that a public trial involving a crime of this
nature subjects the victim to what can be a harrowing
experience of submitting to a physical examination of her
body, an investigation by police authorities, appearance in
court for the hearing where she has to unravel lewd and
hideous details of a painful event which she would prefer to
forget and leave it unknown to others. If Margarita did
forego all these and preferred to face the cruel realities of
the situation it was due to her simple and natural instincts
of speaking out the truth.
The insinuation that this complaint was filed because
appellant had not married the girl although he promised to
marry her, is preposterous. On September 20, 1965,
Margarita was only twelve years and ten months old and
was not of marriageable age, hence, marriage was a legal
impossibility. And as regards appellant's testimony that the
complaint was instigated by the Chief of Police of Tublay
who was Margarita's uncle, the trial court did not give credit
to such a declaration.
37
Counsel for appellant stresses that notwithstanding that
Margarita had the opportunity to ask for help or attract the
attention of other people before she reached her boarding
house, she failed to do so. According to counsel there were
people at the Dangwa station, in the busy streets, in the
market place, in the jeepney parking place where the girl
took a jeep to proceed to the boarding house, and in the
neighboring houses the closest of which was about 5
meters away, but no attempt was ever made by
complainant to seek help so as to prevent appellant from
molesting her. 16
Appellant's contention presupposes that Margarita was well
aware all the time from the moment she saw the appellate
inside the bus that the latter had intentions of abusing or
raping her. All that the appellant did inside the bus was to
hold her bag and she caged the attention of the driver and
the conductor to the impertinence of appellant but the two
did not do anything about it. 17 And when Margarita walked
from the bus to the jeepney station, although she saw
appellant walking behind her she did not suspect that he
was following her. To a question propounded by His Honor
whether she suspected that appellant was following her,
Margarita answered: "No sir, I did not suspect." 18 All along
Margarita could not call the attention of the people in the
street or shout for help inasmuch as at that particular
moment the appellant was not doing anything against her.
And when Margarita reached the boarding house there
were no persons around 19 and in fact she went straight to
her room and it was at that particular moment when
appellant barged into the room before she could close the
door. In short, the Poor girl was simply taken by surprise by
the forced entrance of appellant who immediately took out
an 8-inch long dagger and said "If you will talk I will kill
you."
Persons can have different reactions to a situation like that
— some may manifest an aggressive or violent attitude of
confronting a molesting or impertinent fellow while others,
like 12-year old Margarita, may assume a silent. fearful
attitude.
Appellant's counsel also claims that Margarita did not offer
any resistance to the acts of the accused at the time the
latter was allegedly forcing himself on her as shown by the
medical findings that there were no signs of extra-genital
injuries on the girl's body, and no blood stains on her dress
and underwear.
The foregoing arguments are inadequate to weaken and
destroy the veracity of Margarita's straightforward and
positive declaration as to how appellant, a 22-year old
farmer in the prime of his manhood, weighing 126 lbs and
five feet 21 and six inches tall,20 overpowered her and
succeeded in accomplishing the sexual act despite her
resistance. Margarita was less than 13 years of age, was 4'
8 " in height, and weighed around 95 lbs.21
In a crime of rape, force need not be irresistible; "it need
but be present, and so long as it brings about the desired
result, all consideration of whether it was more or less
irresistible, is beside the point. 22
All that is necessary is that the force used by the accused
is sufficient for him to consummate his evil purpose. In U.S.
v. Villarosa, 1905, there was a similar situation. A 12 year
old girl was sexually abused in the woods by a man of
superior physical strength. In holding the accused Villarosa
guilty of rape the Court held:
 It is a doctrine well established by the
courts that in order to consider the
existence of the crime of rape it is not
necessary that the force employed in
accomplishing it be so great or of such
character as could not be resisted; it is
only necessary that the force used by the
guilty party be sufficient to consummate
the purpose which he had in view. (4
Phil. 434, 437 citing Judgment May 14,
1878, Supreme Court of Spain. The
Villarosa doctrine has been followed in
numerous cases involving the crime of
rape and one of the latest is People v.
Equec, 1977, per Justice Enrique
Fernando, 70 SCRA 665.)
And as stated in People v. Savellano, per Justice Ramon
Aquino, the force or violence necessary in rape is naturally
a relative term, depending on the age, size, and strength of
the parties and their relation to each other. 23
Rape is likewise committed when intimidation is used on
the victim and the latter submits herself against her will
because of fear for her life and personal safety. In this case
of Margarita Paleng, appellant was armed with a dagger
and with it threatened to kill the girl if she would talk or
scream for help. Her fear naturally weakened whatever
resistance Margarita could muster at the time and as a
result appellant was able to consummate his coitus on the
victim. 24
One last point raised by the able counsel of appellant, Atty.
Braulio D. Yaranon, who at the time of the trial in 1965 was
the Vice-Mayor of Baguio City, was that appellant
voluntarily submitted to a lie detector test with the National
Bureau of Investigation and the report of the lie detector
examiner is in appellant's favor, that is, the latter was telling
the truth on the questions propounded to him one of which
was whether he forced Margarita Paleng into having sexual
intercourse with him and the reply was "No". 25
On this matter We find the trial Judge's observations and
conclusions meritorious and We quote from his decision the
following:
As to the N.B.I. lie detector test report,
the Court does not put much faith and
credit on it. It is well known that the same
is not conclusive. Its efficacy depends
upon the time, place and circumstances
when taken and the nature of the subject.
If subject is hard and the circumstances,
as in this instant, were not conducive to
affect the subject emotionally, the test will
fail. The subject had nothing more to fear
because the trial was over. He was not
confronted by the victim or other persons
whom he had a reason to fear. Naturally,
his reaction to the questions propounded
was normal and unaffected and the
apparatus could not detect it. (pp. 172-
173, CFI record)
To conclude, the crime committed by the appellant is rape
with the use of a deadly weapon with the aggravating
circumstance of having been committed in the dwelling of
the offended party. Although Margarita was merely renting
a bedspace in a boarding house, her room constituted for
all intents and purposes a "dwelling" as the term is used in
38
Article 14(3), Revised Penal Code. It is not necessary,
under the law, that the victim owns the place where he lives
or dwells. Be he a lessee, a boarder, or a bed-spacer, the
place is his home the sanctity of which the law seeks to
protect and uphold.
Hence, the correct penalty for the crime committed
is death pursuant to Article 335 of the Revised Penal Code
as amended. However, for lack of the necessary number of
votes, the penalty next lower in degree is to be applied.
PREMISES CONSIDERED, We affirm the judgment of
conviction of Amado Daniel for the crime of rape as
charged, and We sentence him to suffer the penalty
of reclusion perpetua and order him to indemnify Margarita
Paleng by way of moral damages in the amount of Twelve
Thousand Pesos (P12,000.00) and pay the costs.
Decision Modified.
SO ORDERED.
Teehankee, J., concurs.
Barredo, Antonio, Concepcion, Jr. and Santos, JJ., concur
in the result on the merits.
Castro, C.J., Makasiar, Fernando and Fernandez, JJ., took
no part.
Guerrero, J., is on leave.
Separate Opinions
AQUINO, J., concurring:
The phrase shall refrain from entering judgment thereon"
found in section 12 of Rule 124 and in section 34 of the
Judiciary Law means that the Court of Appeals should not
decide the case. The Court of Appeals has been certifying
to this Court criminal cases, wherein the imposable penalty
is death or reclusion perpetua without rendering any
judgment but merely expressing its opinion that the penalty
imposed by the trial court is erroneous and that the
imposable penalty is death or reclusion perpetua.
Invariably, this Court accepted those cases and decided
the same. This Court's jurisdiction in criminal cases, as
defined in the Constitution, cannot be diminished but it can
be enlarged.
Appealed criminal cases may be divided into three classes:
(1) those wherein the lower court imposed the penalty of
death or reclusion perpetua and which are within this
Court's exclusive appellate jurisdiction; (2) criminal cases
wherein the trial court imposed reclusion temporal or a
lesser penalty and which fall within the appellate jurisdiction
of the Court of Appeals, and (3) criminal cases wherein the
trial court imposed a penalty of reclusion temporal or a
lesser penalty but a Division of the Court of Appeals, while
in the process of deciding the case, comes to the
conclusion that the imposable penalty is death or reclusion
perpetua. That third class of criminal cases should be
elevated to this Court "for final determination".
Reclusion perpetua was properly imposed in this case upon
the appellant who is a pedophiliac.
CASTRO, C.J., dissenting:
 1 (d) All criminal cases in which the penalty
The preliminary issue at bar is: What is the correct course
of action that the Court of Appeals should take when, in a
criminal case properly appealed to it, that court determines
that the penalty of death or reclusion perpetua (life
imprisonment) should be imposed instead of the lesser
penalty imposed by the court a quo? Should it refrain from
rendering judgment and forthwith certify the case to the
Supreme Court? Or should it render
judgment imposingwhat it considers as the proper penalty
(either life imprisonment or death) but refrain
from entering judgment and thereafter certify the case to
the Supreme Court?
At the center of scrutiny is the pertinent provision of section
34 of the Judiciary Act of 1948, as amended, and the
Identical statement in the second paragraph of section 12
of Rule 124 of the Rules of Court, both of which read:
Whenever in any criminal case submitted
to a division [of the Court of Appeals] the
said division should be of the opinion that
the penalty of death or life imprisonment
should be imposed, the said court shall
refrain from entering judgment thereon
and shall forthwith certify the case to the
Supreme Court for final determination, as
if the case had been brought before it on
appeal.
Justices Claudio Teehankee, Cecilia Munoz Palma and
Ramon C. Aquino interpret the phrase "entering judgment"
in the inhibitory clause "shall refrain from entering
judgment" to mean "rendering judgment" or "pronouncing
judgment," arguing that [t]his can be the only logical
interpretation considering that the Court of Appeals is
without jurisdiction" to impose the penalties of death and
life imprisonment. They thus opt to maintain the present
practice1of requiring no more than a forwarding certification
(embodying findings of fact supporting the opinion that the
penalty of death or life imprisonment should be imposed)
by the Court of Appeals for the purpose of placing such
case within the jurisdiction of the Supreme Court.
For the reasons hereunder stated, we consider their
interpretation unwarranted and therefore reject the
conclusion that it leads to.
2.
Section 34 of the amended Judiciary Act and the second
paragraph of section 12 of Rule 124 of the Rules of Court
must be construed in the light of the unequivocal
phraseology of paragraph (d), subsection (2), section 5 of
Article X of the Constitution, which states:
Sec. 5. The Supreme Court shall have
the following powers:
xxx xxx xxx
(2) Review and revise, reverse, modify or
affirm on appeal or certiorari, as the law
or the Rules of Court may provide, final
judgments and decrees of inferiors courts
in —
xxx xxx xxx
39
imposed is death, life imprisonment;
Varying the language of this provision only to the extent
necessary to carry out its intention, the first subdivision of
the third paragraph of section 17 of the Judiciary Act made
exclusive the appellate jurisdiction of the Supreme Court, in
the following words:
The Supreme Court shall have exclusive
jurisdiction to review, revise, reverse,
modify or affirm on appeal as the law or
rules of court may provide, final
judgments and decrees of inferior courts
as herein provided in -
(1) All criminal cases involving offenses
for which the penalty imposed is death or
life imprisonment: ...
The constitutional mandate, given due statutory
acknowledgment, sets forth the pertinent appellate
jurisdiction of the Supreme Court. We accord capital
significance to the phrases "final judgments and decrees of
inferior courts and "the penalty imposed." These phrases
are crystal-clear. Read together with the remainder of the
provision, they state in precise and unmistakable terms the
sole intended inescapable meaning that the Supreme Court
shall have appellate jurisdiction over final judgments of
inferior courts in criminal cases in which the penalty
imposed is death or life imprisonment. No hermeneutic
expertise or exercise can validly fashion some other
meaning or intention.
3.
The constitutionally determined nature of the criminal cases
falling within the periphery of the appellate jurisdiction of
the Supreme Court fixes our perspective, defines and
delimits our judicial prerogative in the interpretation of
section 34 of the Judiciary Act, and dictates the manner in
which the law in question should be read and made
operative.
This being so, the clause enjoining the Court of Appeals to
"refrain from entering judgment" whenever it "should be of
the opinion that the penalty of death or life imprisonment
should be imposed" cannot validly be interpreted as a bar
to that appellate court's "rendering judgment." If the
meaning given to the law by the minority should prevail and
the case is forwarded, as this case before us was, to the
Supreme Court on a bare certification by the Court of
Appeals, then we have the unacceptable happenstance of
an ordinary legislative act upstaging the fundamental law,
since, plainly, the Supreme Court will be constrained to
exercise its power to "review, revise, reverse, modify or
affirm on appeal" in criminal cases where NO "final
judgment" in which "the penalty imposed is death or life
imprisonment" has been rendered or pronounced.
The minority view would thus result not only in an
unconstitutional imposition on the Supreme Court of
assumption of jurisdiction over a case that is beyond its
original appellate competence but would also compel
abandonment by the Court of Appeals of appellate
jurisdiction legally and duly vested in and acquired by it.
4.
Because sec. 34 of the Judiciary Act does not and cannot
have primacy or ascendancy over the Constitution, we
assert that the Court of appeals is legally empowered to
impose the penalties of death and life imprisonment. Four
basic and compelling considerations underlie our view.
First: There is no law — no law at all — that states such
prohibition in categorical terms. The minority view rests
solely on the strained interpretation foisted on the very law
under consideration — and this interpretation, as we have
said, is entirely unwarranted.
Second: In the case at hand, the Court of appeals duly and
legally assumed appellate jurisdiction over the accused
Amado Daniel's appeal from the decision of the Court of
First Instance of Baguio sentencing him to suffer a penalty
less than life imprisonment. This cannot be debated since
section 29 of the Judiciary Act specifically places such
appeal within the Court of Appeals' jurisdictional ambit with
the statement that
The Court of Appeals shall have
exclusive appellate jurisdiction over all
cases, actions, and proceedings, not
enumerated i section seventeen of this
Act, properly brought to it.
Thus, absent any constitutional or legal constraints, the
Court of Appeals should have rendered the proper
judgment in the case. For, verily, judicial jurisdiction is "the
power with which judges are invested for administering
Justice — that is, for trying civil or criminal cases, or both,
and deciding them and rendering judgment, ..., 2 (emphasis
supplied)
Third: Harking back to the Constitution, the Court of
Appeals, by unmistakable constitutional categorization, is
an "inferior court." And it is its judgments as such inferior
court which, so the Constitution plainly states, are the
subject of the Supreme Court's plenary power of review,
revision, reversal, modification or affirmance.
Fourth: Absurdity and incongruity should not be read into
the law so as to support the view that a panel of three
Justices of the Court of Appeals is denied the power to
impose the penalties of life imprisonment and death at the
same time that such power is recognized in a single
judge of a lower court of admittedly lesser category,
5.
The resulting conclusion that the Court of Appeals must
impose the proper penalty does not justify the
apprehension that the Supreme Court will be hampered in
the exercise of its jurisdiction because the findings of fact
made by the inferior appellate court "will have to be
respected." This stated procedural practice has never been
honored in the absolute. The ultimate function of the
Supreme Court is to render justice. And we need not
elaborate on or belabor the numerous occasions when, to
attain this objective, the Court shunted aside technicalities
to bare wide open the controversy and inquire into each
and every aspect, be it legal or factual or a mixture of both.
And this is one perfect instance where the avowed ends of
justice must override practice and procedure, for, no less
than human life is at stake. And this would not be a novelty.
When a trial court's judgment imposing the death penalty is
elevated to this Court en consulta, we strip the case into
minutiae: fact by fact, detail by detail, facet by facet. We
40
see no reason why, when a decision imposing the penalty
of death or life imprisonment is rendered by the Court of
Appeals, the same manner of meticulous inquiry should not
be resorted to by the Supreme Court. A sentence imposing
death or life imprisonment is of the self-same gravity,
whichever is the sentencing tribunal.3
6.
It is rather obvious that the phrase "entering judgment" is
completely disparate from the term "rendering judgment."
There is no need to perambulate and meander the
provisions of sections 1 and 2 of Rule 36 of the Rules of
court need merely be read to perceive the strikingly sharp
antithesis between the two phrases. These sections read:
Section 1. Rendition of judgments. — All
judgments determining the merits of
cases shall be in writing personally and
directly prepared by the judge, stating
clearly and distinctly the facts and the law
on which it [sic] is based, signed by him,
and filed with the clerk of the court.
Section 2. Entry of judgments and
orders.— If no appeal or motion for new
trial is filed within the time provided in
these rules, the judgment or order shall
be entered by the clerk. The recording of
the judgment or order in the book of
entries of judgments shall constitute its
entry. The record shall contain the
dispositive part of the judgment or order
and shall be signed by the clerk, with a
certificate that such judgment or order
has become final and executory.
The word "enter" (which undeniably is the root of
"entering") with reference to judgments has acquired a
definite meaning in our procedure. There simply exists no
ambiguity to warrant embroiled interpretation. We need not
hammer out meaning from the word "entered." It is there.
Section 2, Rule 36 chisels out the legal import of the
word.4 To repeat and stress the Rule, "[t]he recording of the
judgment or order in the book of entries of judgments shall
constitute its entry. Upon the other hand, the rendition of
judgment is the judicial act of the writing by the judge of the
decision and the filing thereof with the clerk of court. 5
Such being the precise acceptations of the terms "entering
judgment" and "rendering judgment," we see no cogent
reason why our indisputably learned lawmakers should
have written in the former when they meant the latter. If, as
the minority would have it, the intention was just that, why
then has not section 34 of the Judiciary Act been
accordingly amended, considering that the said Act has
been amended no less than ninety (90) times 6 since its
enactment thirty years ago in 1948?
The conclusion is thus ineluctable that section 34 of the
Judiciary Act means exactly what it says. (And its
intendment cannot and should not be altered through tile
expedient of palpably tortuous and torturous statutory
interpretation.) This rightly projects the limited character of
the said section — a procedural device designed to effect
and make effective the jurisdictions of both the Supreme
Court and the Court of Appeals. Read as written, this
section neither imposes nor curtails constitutionally and
legally established jurisdictions. The Court of
Appeals canand must render a decision and impose the
proper penalty of death or life imprisonment, and, to effect
the jurisdiction of the Supreme Court, refrain from entering
its judgment, and forthwith certify tile case to the Supreme
Court.
7.
Aside from according the respect that is due to the
Constitution and setting aright the import of section 34 of
tile Judiciary Act, our reading of the law will obviate
unnecessary, pointless and time-wasting shuttling of
criminal cases between the Supreme Court and the Court
of Appeals. We advert to that portion of
the Ramos 7decision, cited with approval by Justice Muñoz
Palma, which states:
We are of the opinion and so hold,
therefore, that in a case like this, the
Court of Appeals, in certifying it to this
Court, must state its findings of fact
necessary to support its conclusion that
the penalty to be imposed is either life
imprisonment or death. While this Court
will not review the findings of fact, it will
pass upon the correctness of the legal
conclusions derived thereof And if this
Court finds the conclusions to be correct,
it will assume jurisdiction. If it finds then
to be wrong the case will be returned to
the Court of Appeals. (emphasis
supplied)
We particularly and especially object to the return of the
ease to the Court of Appeals if the Supreme Court "finds"
the legal conclusions in the certification "to be wrong." This
incident will never come to pass if section 34 is correctly
construed — that is, as we construe it — for, the Supreme
Court will acquire jurisdiction over the case from the very
inception and can, without bothering the Court of Appeals
which has fully completed the exercise of its jurisdiction, do
justice in the case.
8.
ACCORDINGLY, this Court directs that, henceforth, should
the Court of Appeals be of the opinion that the penalty of
death or reclusion perpetua (life imprisonment) should be
imposed in any criminal case appealed to it where the
penalty imposed by the trial court is less than reclusion
perpetua the said Court, with a comprehensive written
analysis of the evidence and discussion of the law involved,
render judgment expressly and explicitly imposing the
penalty of either death or reclusion perpetua as the
circumstances warrant, refrain from entering judgment, and
forthwith certify the case and elevate the entire record
thereof to this Court for review.
Barredo, Makasiar, Antonio, Concepcion, Jr., Santos and
Fernandez, JJ., concur.
Separate Opinions
AQUINO, J., concurring:
The phrase shall refrain from entering judgment thereon"
found in section 12 of Rule 124 and in section 34 of the
Judiciary Law means that the Court of Appeals should not
decide the case. The Court of Appeals has been certifying
to this Court criminal cases, wherein the imposable penalty
41
is death or reclusion perpetua without rendering any
judgment but merely expressing its opinion that the penalty
imposed by the trial court is erroneous and that the
imposable penalty is death or reclusion perpetua.
Invariably, this Court accepted those cases and decided
the same. This Court's jurisdiction in criminal cases, as
defined in the Constitution, cannot be diminished but it can
be enlarged.
Appealed criminal cases may be divided into three classes:
(1) those wherein the lower court imposed the penalty of
death or reclusion perpetua and which are within this
Court's exclusive appellate jurisdiction; (2) criminal cases
wherein the trial court imposed reclusion temporal or a
lesser penalty and which fall within the appellate jurisdiction
of the Court of Appeals, and (3) criminal cases wherein the
trial court imposed a penalty of reclusion temporal or a
lesser penalty but a Division of the Court of Appeals, while
in the process of deciding the case, comes to the
conclusion that the imposable penalty is death or reclusion
perpetua. That third class of criminal cases should be
elevated to this Court "for final determination".
Reclusion perpetua was properly imposed in this case upon
the appellant who is a pedophiliac.
CASTRO, C.J., dissenting:
1
The preliminary issue at bar is: What is the correct course
of action that the Court of Appeals should take when, in a
criminal case properly appealed to it, that court determines
that the penalty of death or reclusion perpetua (life
imprisonment) should be imposed instead of the lesser
penalty imposed by the court a quo? Should it refrain from
rendering judgment and forthwith certify the case to the
Supreme Court? Or should it render
judgment imposingwhat it considers as the proper penalty
(either life imprisonment or death) but refrain
from entering judgment and thereafter certify the case to
the Supreme Court?
At the center of scrutiny is the pertinent provision of section
34 of the Judiciary Act of 1948, as amended, and the
Identical statement in the second paragraph of section 12
of Rule 124 of the Rules of Court, both of which read:
Whenever in any criminal case submitted
to a division [of the Court of Appeals] the
said division should be of the opinion that
the penalty of death or life imprisonment
should be imposed, the said court shall
refrain from entering judgment thereon
and shall forthwith certify the case to the
Supreme Court for final determination, as
if the case had been brought before it on
appeal.
Justices Claudio Teehankee, Cecilia Munoz Palma and
Ramon C. Aquino interpret the phrase "entering judgment"
in the inhibitory clause "shall refrain from entering
judgment" to mean "rendering judgment" or "pronouncing
judgment," arguing that [t]his can be the only logical
interpretation considering that the Court of Appeals is
without jurisdiction" to impose the penalties of death and
life imprisonment. They thus opt to maintain the present
practice1of requiring no more than a forwarding certification
(embodying findings of fact supporting the opinion that the
penalty of death or life imprisonment should be imposed)
by the Court of Appeals for the purpose of placing such
case within the jurisdiction of the Supreme Court.
For the reasons hereunder stated, we consider their
interpretation unwarranted and therefore reject the
conclusion that it leads to.
2.
Section 34 of the amended Judiciary Act and the second
paragraph of section 12 of Rule 124 of the Rules of Court
must be construed in the light of the unequivocal
phraseology of paragraph (d), subsection (2), section 5 of
Article X of the Constitution, which states:
Sec. 5. The Supreme Court shall have
the following powers:
xxx xxx xxx
(2) Review and revise, reverse, modify or
affirm on appeal or certiorari, as the law
or the Rules of Court may provide, final
judgments and decrees of inferiors courts
in —
xxx xxx xxx
(d) All criminal cases in which the penalty
imposed is death, life imprisonment;
Varying the language of this provision only to the extent
necessary to carry out its intention, the first subdivision of
the third paragraph of section 17 of the Judiciary Act made
exclusive the appellate jurisdiction of the Supreme Court, in
the following words:
The Supreme Court shall have exclusive
jurisdiction to review, revise, reverse,
modify or affirm on appeal as the law or
rules of court may provide, final
judgments and decrees of inferior courts
as herein provided in -
(1) All criminal cases involving offenses
for which the penalty imposed is death or
life imprisonment: ...
The constitutional mandate, given due statutory
acknowledgment, sets forth the pertinent appellate
jurisdiction of the Supreme Court. We accord capital
significance to the phrases "final judgments and decrees of
inferior courts and "the penalty imposed." These phrases
are crystal-clear. Read together with the remainder of the
provision, they state in precise and unmistakable terms the
sole intended inescapable meaning that the Supreme Court
shall have appellate jurisdiction over final judgments of
inferior courts in criminal cases in which the penalty
imposed is death or life imprisonment. No hermeneutic
expertise or exercise can validly fashion some other
meaning or intention.
3.
The constitutionally determined nature of the criminal cases
falling within the periphery of the appellate jurisdiction of
the Supreme Court fixes our perspective, defines and
delimits our judicial prerogative in the interpretation of
section 34 of the Judiciary Act, and dictates the manner in
42
which the law in question should be read and made
operative.
This being so, the clause enjoining the Court of Appeals to
"refrain from entering judgment" whenever it "should be of
the opinion that the penalty of death or life imprisonment
should be imposed" cannot validly be interpreted as a bar
to that appellate court's "rendering judgment." If the
meaning given to the law by the minority should prevail and
the case is forwarded, as this case before us was, to the
Supreme Court on a bare certification by the Court of
Appeals, then we have the unacceptable happenstance of
an ordinary legislative act upstaging the fundamental law,
since, plainly, the Supreme Court will be constrained to
exercise its power to "review, revise, reverse, modify or
affirm on appeal" in criminal cases where NO "final
judgment" in which "the penalty imposed is death or life
imprisonment" has been rendered or pronounced.
The minority view would thus result not only in an
unconstitutional imposition on the Supreme Court of
assumption of jurisdiction over a case that is beyond its
original appellate competence but would also compel
abandonment by the Court of Appeals of appellate
jurisdiction legally and duly vested in and acquired by it.
4.
Because sec. 34 of the Judiciary Act does not and cannot
have primacy or ascendancy over the Constitution, we
assert that the Court of appeals is legally empowered to
impose the penalties of death and life imprisonment. Four
basic and compelling considerations underlie our view.
First: There is no law — no law at all — that states such
prohibition in categorical terms. The minority view rests
solely on the strained interpretation foisted on the very law
under consideration — and this interpretation, as we have
said, is entirely unwarranted.
Second: In the case at hand, the Court of appeals duly and
legally assumed appellate jurisdiction over the accused
Amado Daniel's appeal from the decision of the Court of
First Instance of Baguio sentencing him to suffer a penalty
less than life imprisonment. This cannot be debated since
section 29 of the Judiciary Act specifically places such
appeal within the Court of Appeals' jurisdictional ambit with
the statement that
The Court of Appeals shall have
exclusive appellate jurisdiction over all
cases, actions, and proceedings, not
enumerated i section seventeen of this
Act, properly brought to it.
Thus, absent any constitutional or legal constraints, the
Court of Appeals should have rendered the proper
judgment in the case. For, verily, judicial jurisdiction is "the
power with which judges are invested for administering
Justice — that is, for trying civil or criminal cases, or both,
and deciding them and rendering judgment, ..., 2 (emphasis
supplied)
Third: Harking back to the Constitution, the Court of
Appeals, by unmistakable constitutional categorization, is
an "inferior court." And it is its judgments as such inferior
court which, so the Constitution plainly states, are the
subject of the Supreme Court's plenary power of review,
revision, reversal, modification or affirmance.
Fourth: Absurdity and incongruity should not be read into
the law so as to support the view that a panel of three
Justices of the Court of Appeals is denied the power to
impose the penalties of life imprisonment and death at the
same time that such power is recognized in a single
judge of a lower court of admittedly lesser category,
5.
The resulting conclusion that the Court of Appeals must
impose the proper penalty does not justify the
apprehension that the Supreme Court will be hampered in
the exercise of its jurisdiction because the findings of fact
made by the inferior appellate court "will have to be
respected." This stated procedural practice has never been
honored in the absolute. The ultimate function of the
Supreme Court is to render justice. And we need not
elaborate on or belabor the numerous occasions when, to
attain this objective, the Court shunted aside technicalities
to bare wide open the controversy and inquire into each
and every aspect, be it legal or factual or a mixture of both.
And this is one perfect instance where the avowed ends of
justice must override practice and procedure, for, no less
than human life is at stake. And this would not be a novelty.
When a trial court's judgment imposing the death penalty is
elevated to this Court en consulta, we strip the case into
minutiae: fact by fact, detail by detail, facet by facet. We
see no reason why, when a decision imposing the penalty
of death or life imprisonment is rendered by the Court of
Appeals, the same manner of meticulous inquiry should not
be resorted to by the Supreme Court. A sentence imposing
death or life imprisonment is of the self-same gravity,
whichever is the sentencing tribunal.3
6.
It is rather obvious that the phrase "entering judgment" is
completely disparate from the term "rendering judgment."
There is no need to perambulate and meander the
provisions of sections 1 and 2 of Rule 36 of the Rules of
court need merely be read to perceive the strikingly sharp
antithesis between the two phrases. These sections read:
Section 1. Rendition of judgments. — All
judgments determining the merits of
cases shall be in writing personally and
directly prepared by the judge, stating
clearly and distinctly the facts and the law
on which it [sic] is based, signed by him,
and filed with the clerk of the court.
Section 2. Entry of judgments and
orders.— If no appeal or motion for new
trial is filed within the time provided in
these rules, the judgment or order shall
be entered by the clerk. The recording of
the judgment or order in the book of
entries of judgments shall constitute its
entry. The record shall contain the
dispositive part of the judgment or order
and shall be signed by the clerk, with a
certificate that such judgment or order
has become final and executory.
The word "enter" (which undeniably is the root of
"entering") with reference to judgments has acquired a
definite meaning in our procedure. There simply exists no
ambiguity to warrant embroiled interpretation. We need not
hammer out meaning from the word "entered." It is there.
43
Section 2, Rule 36 chisels out the legal import of the
word.4 To repeat and stress the Rule, "[t]he recording of the
judgment or order in the book of entries of judgments shall
constitute its entry. Upon the other hand, the rendition of
judgment is the judicial act of the writing by the judge of the
decision and the filing thereof with the clerk of court. 5
Such being the precise acceptations of the terms "entering
judgment" and "rendering judgment," we see no cogent
reason why our indisputably learned lawmakers should
have written in the former when they meant the latter. If, as
the minority would have it, the intention was just that, why
then has not section 34 of the Judiciary Act been
accordingly amended, considering that the said Act has
been amended no less than ninety (90) times 6 since its
enactment thirty years ago in 1948?
The conclusion is thus ineluctable that section 34 of the
Judiciary Act means exactly what it says. (And its
intendment cannot and should not be altered through tile
expedient of palpably tortuous and torturous statutory
interpretation.) This rightly projects the limited character of
the said section — a procedural device designed to effect
and make effective the jurisdictions of both the Supreme
Court and the Court of Appeals. Read as written, this
section neither imposes nor curtails constitutionally and
legally established jurisdictions. The Court of
Appeals canand must render a decision and impose the
proper penalty of death or life imprisonment, and, to effect
the jurisdiction of the Supreme Court, refrain from entering
its judgment, and forthwith certify tile case to the Supreme
Court.
7.
Aside from according the respect that is due to the
Constitution and setting aright the import of section 34 of
tile Judiciary Act, our reading of the law will obviate
unnecessary, pointless and time-wasting shuttling of
criminal cases between the Supreme Court and the Court
of Appeals. We advert to that portion of
the Ramos 7decision, cited with approval by Justice Muñoz
Palma, which states:
We are of the opinion and so hold,
therefore, that in a case like this, the
Court of Appeals, in certifying it to this
Court, must state its findings of fact
necessary to support its conclusion that
the penalty to be imposed is either life
imprisonment or death. While this Court
will not review the findings of fact, it will
pass upon the correctness of the legal
conclusions derived thereof And if this
Court finds the conclusions to be correct,
it will assume jurisdiction. If it finds then
to be wrong the case will be returned to
the Court of Appeals. (emphasis
supplied)
We particularly and especially object to the return of the
ease to the Court of Appeals if the Supreme Court "finds"
the legal conclusions in the certification "to be wrong." This
incident will never come to pass if section 34 is correctly
construed — that is, as we construe it — for, the Supreme
Court will acquire jurisdiction over the case from the very
inception and can, without bothering the Court of Appeals
which has fully completed the exercise of its jurisdiction, do
justice in the case.
 8.

ACCORDINGLY, this Court directs that, henceforth, should

the Court of Appeals be of the opinion that the penalty of
death or reclusion perpetua (life imprisonment) should be
imposed in any criminal case appealed to it where the
penalty imposed by the trial court is less than reclusion
perpetua the said Court, with a comprehensive written
analysis of the evidence and discussion of the law involved,
render judgment expressly and explicitly imposing the
penalty of either death or reclusion perpetua as the
circumstances warrant, refrain from entering judgment, and
forthwith certify the case and elevate the entire record
thereof to this Court for review.

Barredo, Makasiar, Antonio, Concepcion, Jr., Santos and

Fernandez, JJ., concur.

44
 EN BANC
[G.R. No. 120420. April 21, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. RUFINO MIRANDILLA BERMAS, accused-
appellant.
DECISION
VITUG, J.:
In convicting an accused, it is not enough that proof
beyond reasonable doubt has been adduced; it is also
essential that the accused has been duly afforded his
fundamental rights.
Rufino Mirandilla Bermas pleaded not guilty before
the Regional Trial Court of Paraaque, Branch 274, Metro
Manila, to the crime of rape under a criminal complaint,
which read:
COMPLAINT
The undersigned complainant as assisted by her mother
accuses Rufino Mirandilla Bermas, of the crime of Rape,
committed as follows:
"That on or about the 3rd day of August 1994, in the
Municipality of Paraaque, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the
abovenamed accused, while armed with a knife and by
means of force and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge of the
undersigned complainant against her will.
CONTRARY TO LAW
Paraaque, Metro Manila
August 8, 1994
(SGD) MANUEL P. BERMAS
Complainant
Assisted by:
(SGD) ROSITA BERMAS
Mother[1]
Evidence was adduced during trial by the parties at the
conclusion of which the lower court, presided over by Hon.
Amelita G. Tolentino, rendered its decision, dated 02 May
1995, finding the accused guilty of the offense charged and
sentencing him to suffer the extreme penalty of death.
The death penalty having been imposed, the case
has reached this Court by way of automatic review
pursuant to Article 47 of the Revised Penal Code, as
amended by Section 22 of Republic Act No.
7659 (otherwise known as An Act To Impose Death
Penalty on Certain Heinous Crimes, Amending For That
Purpose The Revised Penal Code, as amended, Other
Special Penal Laws, and For Other Purposes, which
took effect on 31 December 1993).
45
The prosecution, through the Office of the Solicitor
General, gave an account, rather briefly, of the evidence
submitted by the prosecution.
"On August 3, 1994, complainant Manuela Bermas, 15
years old, was raped by her own father, appellant Rufino
Bermas, while she was lying down on a wooden bed inside
their house at Creek Drive II, San Antonio Valley 8,
Paraaque, Metro Manila (pp. 6-7, TSN, Oct. 19,
1994). Armed with a knife, appellant removed the victim's
shorts and panty, placed himself above her, inserted his
penis in her vagina and conducted coital movements (pp.
7-8, ibid.). After the appellant satisfied his lustful desire, he
threatened the victim with death if she reports the incident
to anyone. (p. 9, ibid.)
"On August 9, 1994, complainant was medically examined
at the NBI, which yielded the following findings:
"The findings concluded: 1. No evident sign of extragenital
physical injuries noted on the body of the subject at the
time of examination; 2. Hymen, intact but distensible and its
orifice wide (2.7 cm. In diameter) as to allow complete
penetration by an average sized, adult, Filipino male organ
in full erection without producing any hymenal laceration." [2]
The defense proffered the testimony of the accused,
who denied the charge, and that of his married daughter,
Luzviminda Mendez, who attributed the accusation made
by her younger sister to a mere resentment by the
latter. The trial court gave a summary of the testimony
given by the accused and his daughter Luzviminda; viz:
The accused vehemently denied that he has ever
committed the crime of rape on her daughter, the
complainant. He told the Court that he could not do such a
thing because he loves so much his daughter and his other
children. In fact, he said that he even performed the dual
role of a father and a mother to his children since the time
of his separation from his wife. The accused further told the
Court that in charging him of the crime of rape, the
complainant might have been motivated by ill-will or
revenge in view of the numerous scoldings that she has
received from him on account of her frequent coming home
late at night. The accused stressed that he knew of no
other reason as to why his daughter, the complainant,
would ever charge him of the crime of rape except probably
in retaliation for being admonished by him whenever she
comes home late in the night.
The married daughter of the accused, who testified in his
behalf, denied that the complainant was raped by the
accused. She said that the complainant did not come home
in the night of August 3, 1994, and that, she is a liar. She
told the Court that the concoction by the complainant of the
rape story is probably due to the resentment by the latter of
the frequent scoldings that she has been receiving from the
accused. She further added that she was told by the
previous household employer of the complainant that the
latter is a liar. She went on to testify further that she does
not believe that the accused, who is her father, raped the
complainant, who is her younger sister.[3]
The trial court, in its decision of 02 May 1995, found
the case of the prosecution against the accused as having
been duly established and so ruled out the defense theory
of denial and supposed ill-will on the part of private
complainant that allegedly had motivated the filing of the
complaint against her father. The court adjudged:
"WHEREFORE, this Court finds the accused guilty beyond
reasonable doubt of the crime of rape and hereby
sentences him to suffer the DEATH PENALTY, to
indemnify the complainant in the amount of P75,000.00,
Philippine Currency, and to pay the costs.
"SO ORDERED."[4]
In their 61-page brief, defense counsel Fernandez &
Kasilag-Villanueva (in collaboration with the Anti-Death
Penalty Task Force), detailed several errors allegedly
committed by the court a quo; thus:
I. THE ACCUSED WAS DEPRIVED OF DUE PROCESS.
A. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL
RIGHT TO EFFECTIVE AND VIGILANT COUNSEL
1. The trial court did not observe the correct
selection process in appointing the
accused's counsel de officio;
2. The Public Attorney could not give justice to
the accused;
a. Negligent in not moving to quash the information on the
ground of illegal arrest;
b. Negligent in not moving to quash the information on the
ground of invalid filing of the information;
c. Negligent in not moving for a preliminary investigation;
d. Negligent in not pointing out the unexplained change in
the case number;
e. Negligent in not moving to inhibit the judge;
f. Negligent in her conduct at the initial trial.
3. The Vanishing Second Counsel de Officio
a. He was not dedicated nor devoted to the accused;
b. His work was shoddy;
4. The Reluctant Third Counsel de Officio
5. The performance of all three counsels de
officio was ineffective and prejudicial to the
accused.
B. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL
RIGHT TO BE TRIED BY AN IMPARTIAL JUDGE AND TO
BE PRESUMED INNOCENT.
C. THE ACCUSED WAS DENIED HIS CONSTITUTIONAL
RIGHT TO BE HEARD AND FOR WITNESSES TO
TESTIFY IN HIS BEHALF.
D. THE ARRAIGNMENT OF THE ACCUSED WAS
INVALID.
E. THE ACCUSED WAS DENIED THE EQUAL
PROTECTION OF THE LAW.
II. THE TRIAL COURT DID NOT `SCRUTINIZE WITH
EXTREME CAUTION THE PROSECUTION'S EVIDENCE,
MISAPPRECIATED THE FACTS AND THEREFORE
ERRED IN FINDING THE ACCUSED GUILTY OF RAPE
BEYOND REASONABLE DOUBT."[5]
46
The Court, after a painstaking review of the records,
finds merit in the appeal enough to warrant a remand of the
case for new trial.
It would appear that on 08 August 1994 Manuela P.
Bermas, then 15 years of age, assisted by her mother
Rosita Bermas, executed a sworn statement before SPO1
Dominador Nipas, Jr., of the Paraaque Police Station,
stating, in sum, that she had been raped by accused Rufino
Mirandilla Bermas, her own father, in 1991 and 1993, as
well as on 03 August 1994, particularly the subject matter
of the complaint, hereinbefore quoted, duly signed and filed
conformably with Section 7, Rule 112, of the Rules of
Court. The Second Assistant Prosecutor, issued a
certification to the effect that the accused had waived his
right to a preliminary investigation.
On the day scheduled for his arraignment on 03
October 1994, the accused was brought before the trial
court without counsel. The court thereupon assigned Atty.
Rosa Elmira C. Villamin of the Public Attorney's Office to be
the counsel de officio. Accused forthwith pleaded not
guilty. The pre-trial was waived.
The initial reception of evidence was held on 19
October 1994. The prosecution placed complainant
Manuela Bermas at the witness stand. She testified on
direct examination with hardly any participation by defense
counsel who, inexplicably, later waived the cross-
examination and then asked the court to be relieved of her
duty as counsel de officio.
"ATTY. VILLARIN:
And I am requesting if this Honorable Court would allow
me and my paero besides me, would accede to
my request that I be relieved as counsel de officio
because I could not also give justice to the
accused because as a lady lawyer . . . if my paero
here and if this Honorable Court will accede to my
request.
"COURT:
It is your sworn duty to defend the helpless and the
defenseless. That is your sworn duty, Mrs.
Counsel de Officio. Are you retracting?
"ATTY. VILLARIN:
That is why I am asking this Honorable Court."[6]
Counsel's request was granted, and Atty. Roberto Gomez
was appointed the new counsel de officio. While Atty.
Gomez was ultimately allowed to cross-examine the
complainant, it should be quite evident, however, that he
barely had time, to prepare therefor. On this score, defense
counsel Fernandez & Kasilag-Villanueva in the instant
appeal would later point out:
To substitute for her, the Public Attorney recommended
Atty. Roberto Gomez to be appointed as defense counsel
de oficio. And so the trial court appointed him.
Atty. Gomez asked for a ten minute recess before he
began his cross examination, presumably to prepare. But a
ten minute preparation to cross examine the complainant
upon whose testimony largely rests the verdict on the
accused who stands to be meted the death penalty if found
guilty, is far too inadequate. He could not possibly have
familiarized himself with the records and surrounding
circumstances of the case, read the complaint, the
statement of the complainant, the medico-legal report,
memos of the police, transcripts and other relevant
documents and confer with the accused and his witnesses,
all in ten minutes.[7]
 The prosecution abruptly rested its case after the
medico-legal officer had testified.
The reception of the defense evidence was scheduled
for 12 December 1994; it was later reset to 09 January
1995. When the case was called on 09 January 1995, the
following transpired:
COURT:
Where is the counsel for the accused?
COURT:
Did he file his withdrawal in this case? It is supposed to
be the turn of the defense to present its evidence.
PROSECUTOR GARCIA:
Yes, Your Honor. The prosecution had already rested
its case.
COURT:
Last time he asked for the continuance of this case and
considering that the accused is under detention ...
it seems he cannot comply with his obligation.
COURT:
(To the accused) Nasaan ang abogado mo?
ACCUSED R. BERMAS:
Wala po.
COURT:
It is already the turn of the defense to present its
evidence in this case. In view of the fact that the
defense counsel is not interested anymore in
defending the accused because last time he
moved for the continuance of the hearing of this
case and since this time he did not appear, he is
unduly delaying the proceedings of this case and
considering the accused here is under detention, I
think it would be better if the Court appoints
another lawyer. He should file his withdrawal if he
is not interested anymore.
In view of the fact that the counsel de officio has
repeatedly failed to appear in this Court to defend
his client-accused, the Court is hereby constrained
to appoint another counsel de officio to handle the
defense of the accused. For this purpose, Atty.
Nicanor Lonzame is hereby appointed as the
counsel de officio for accused Rufino Mirandilla
Bermas.[8]
The hearing scheduled for that day was reset to 16 January
1995 upon the request of Atty. Lonzame. On even date,
Atty. Lonzame himself asked to be relieved as counsel de
officio but later, albeit reluctantly, retracted; thus:
COURT:
Where is the accused? Where is the counsel de officio?
ATTY. NICANOR LONZAME:
As counsel de officio, Your Honor. The lawyer from the
PAO is here, may I be allowed to give her my
responsibility as counsel de officio considering
that the lawyer from the PAO ...
COURT:
What about?
ATTY. LONZAME:
47
I was appointed because the PAO lawyer was not
around. If the Court will allow us to be relieved
from our responsibility as appointed counsel de
officio of the accused ...
COURT:
You want to be relieved of your responsibility as
appointed counsel de officio? As an officer of the
Court you don't want to handle the defense of the
accused in this case?
ATTY. LONZAME:
I will be withdrawing my previous manifestation that I be
relieved of my responsibility as counsel de officio.
COURT:
So, therefore, counsel, are you now ready?
ATTY. LONZAME:
Yes, Your Honor.[9]
Trial proceeded with the accused being the first to be put at
the witness stand. He denied the accusation against
him. The next witness to be presented was his married
daughter who corroborated her fathers claim of innocence.
The defense counsel in the instant appeal took over
from Atty. Lonzame who himself, for one reason or another,
had ceased to appear for and in behalf of accused-
appellant.
This Court finds and must hold, most regrettably, that
accused-appellant has not properly and effectively been
accorded the right to counsel. So important is the right to
counsel that it has been enshrined in our fundamental law
and its precursor laws. Indeed, even prior to the advent of
the 1935 Constitution, the right to counsel of an accused
has already been recognized under General Order No. 58,
dated 23 April 1900, stating that a defendant in all criminal
prosecutions is entitled to counsel at every stage of the
proceedings,[10] and that if he is unable to employ counsel,
the court must assign one to defend him.[11] The 1935
Constitution has no less been expressive in declaring, in
Article III, Section 17, thereof, that -
(17) In all criminal prosecutions, the accused shall be
presumed to be innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and counsel, to
be informed of the nature and cause of the accusation
against him, to have a speedy and public trial, to meet the
witnesses face to face, and to have compulsory process to
secure the attendance of witnesses in his behalf.
Except for a proviso allowing trial in absentia, the right to
counsel under the 1973 Constitution, essentially, has
remained unchanged. Under the 1987 Constitution, a
worthwhile innovation that has been introduced is the
provision from which prevailing jurisprudence on the
availability of the right to counsel as early as the stage of
custodial interrogation can be deemed to be
predicated. The rule, found in Sections 12 and 14, Article
III, of the 1987 Constitution, states -
Sec. 12. (1) Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have competent
and independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he must
be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
xxxxxxxxx
Sec. 14. x x x x x x x x x
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet
the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly
notified and his failure to appear is unjustifiable.
The constitutional mandate is reflected in the 1985
Rules of Criminal Procedures which declares in Section 1,
Rule 115, thereof, that it is a right of the accused at the trial
to be present in person and by counsel at every stage of
the proceedings from the arraignment to the promulgation
of the judgment.
The presence and participation of counsel in the
defense of an accused in criminal proceedings should
never be taken lightly.[12] Chief Justice Moran in People vs.
Holgado,[13]explained:
"In criminal cases there can be no fair hearing unless the
accused be given an opportunity to be heard by
counsel. The right to be heard would be of little avail if it
does not include the right to be heard by counsel. Even the
most intelligent or educated man may have no skill in the
science of the law, particularly in the rules of procedure,
and, without counsel, he may be convicted not because he
is guilty but because he does not know how to establish his
innocence. And this can happen more easily to persons
who are ignorant or uneducated. It is for this reason that
the right to be assisted by counsel is deemed so important
that it has become a constitutional right and it so
implemented that under our rules of procedure it is not
enough for the Court to apprise an accused of his right to
have an attorney, it is not enough to ask him whether he
desires the aid of an attorney, but it is essential that the
court should assign one de oficio for him if he so desires
and he is poor or grant him a reasonable time to procure an
attorney of his own."[14]
In William vs. Kaiser,[15] the United States Supreme
Court, through the late Justice Douglas, has rightly
observed that the accused needs the aid of counsel lest he
be the victim of overzealous prosecutors, of the laws
complexity or of his own ignorance or bewilderment. An
accused must be given the right to be represented by
counsel for, unless so represented, there is great danger
that any defense presented in his behalf will be as
inadequate considering the legal perquisites and skills
needed in the court proceedings.[16] The right to counsel
proceeds from the fundamental principle of due process
which basically means that a person must be heard before
being condemned. The due process requirement is a part
of a persons basic rights; it is not a mere formality that may
be dispensed with or performed perfunctorily.
The right to counsel must be more than just the
presence of a lawyer in the courtroom or the mere
propounding of standard questions and objections. The
right to counsel means that the accused is amply accorded
legal assistance extended by a counsel who commits
himself to the cause for the defense and acts
accordingly. The right assumes an active involvement by
the lawyer in the proceedings, particularly at the trial of the
case, his bearing constantly in mind of the basic rights of
the accused, his being well-versed on the case, and his
48
knowing the fundamental procedures, essential laws and
existing jurisprudence. The right of an accused to counsel
finds substance in the performance by the lawyer of his
sworn duty of fidelity to his client. Tersely put, it means an
efficient and truly decisive legal assistance and not a
simple perfunctory representation.[17]
It is never enough that accused be simply informed of
his right to counsel; he should also be asked whether he
wants to avail himself of one and should be told that he can
hire a counsel of his own choice if he so desires or that one
can be provided to him at his request.[18] Section 7, Rule
116, of the Rules of Criminal Procedure provides:
Sec. 7. Appointment of counsel de oficio. - The court,
considering the gravity of the offense and the difficulty of
the questions that may arise, shall appoint as counsel de
oficio only such members of the bar in good standing who,
by reason of their experience and ability may adequately
defend the accused. But in localities where such members
of the bar are not available, the court may appoint any
person, resident of the province and of good repute for
probity and ability, to defend the accused.
A counsel de oficio is expected to do his utmost.[19] A mere
pro-forma appointment of de oficio counsel who fails to
genuinely protect the interests of the accused merits
disapprobation.[20]The exacting demands expected of a
lawyer should be no less than stringent when one is a
counsel de officio. He must take the case not as a burden
but as an opportunity to assist in the proper dispensation of
justice. No lawyer is to be excused from this responsibility
except only for the most compelling and cogent reasons. [21]
Just weeks ago, in People vs. Sevilleno, G.R. No.
129058, promulgated on 29 March 1999, this Court has
said:
We cannot right finis to this discussion without making
known our displeasure over the manner by which the PAO
lawyers dispensed with their duties. All three (3) of them
displayed manifest disinterest on the plight of their client.
xxxxxxxxx
Canon 18 of the Code of Professional
Responsibility requires every lawyer to serve his client with
utmost dedication, competence and diligence. He must not
neglect a legal matter entrusted to him, and his negligence
in this regard renders him administratively liable. Obviously,
in the instant case, the aforenamed defense lawyers did not
protect, much less uphold, the fundamental rights of the
accused. Instead, they haphazardly performed their
function as counsel de oficio to the detriment and prejudice
of the accused Sevilleno, however guilty he might have
been found to be after trial. Inevitably, this Court must
advise Attys. Agravante, Pabalinas and Saldavia to adhere
closely and faithfully to the tenets espoused in the Code of
Professional Responsibility; otherwise, commission of any
similar act in the future will be severely sanctioned.
The Court sees no other choice than to direct the
remand of the case to the court a quo for new trial.
WHEREFORE, let this case be REMANDED to the
court a quo for trial on the basis of the complaint,
aforequoted, under which he was arraigned. Atty. Ricardo
A. Fernandez, Jr. of the Anti-Death Penalty Task Force is
hereby appointed counsel de officio for the appellant.
Attys. Rosa Elmina Villamin of the Public Attorney's
Office, Paraaque, Roberto Gomez and Nicanor Lonzame
are hereby ADMONISHED for having fallen much too short
of their responsibility as officers of the court and as
members of the Bar and are warned that any similar
infraction shall be dealt with most severely.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno,

Kapunan, Mendoza, Panganiban, Quisumbing, Purisima,
Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago,
JJ., concur.

49
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. L-No. 5292 August 28, 1909
THE UNITED STATES, plaintiff,
vs.
THE MORO MANALINDE, defendant.
Office of the Solicitor-General Harvey for plaintiff.
Ramon Diokno for defendant.
TORRES, J.:
Between 2 and 3 o'clock on the afternoon of the 19th of
January, 1909, while Juan Igual, a Spaniard, was seated
on a chair in the doorway of Sousa's store in Cotabato,
Moro Province, he suddenly received a wound on the head
delivered from behind and inflicted with a kris. Ricardo
Doroteo, a clerk in the said store, who was standing behind
the counter, upon hearing the noise and the cry of the
wounded man, ran to his assistance and found him lying on
the ground. Meanwhile the aggressor, the Moro Manalinde,
approached a Chinaman named Choa, who was passing
along the street, and just as the latter was putting down his
load in front of the door of a store and was about to enter,
attacked him with the same weapon, inflicting a severe
wound in the left shoulder, on account of which he fell to
the ground. The Moro, who came from the rancheria of
Dupit and had entered the town carrying his weapon
wrapped up in banana leaves, in the meantime escaped by
running away from the town. Both wounded men, the
Chinaman and the Spaniard, were taken to the hospital,
where the former died within an hour, the record not stating
the result of the wound inflicted on the Spaniard Juan Igual.
In view of the above a complaint was filed by the provincial
fiscal with the district court charging Manalinde with the
crime of murder, and proceedings having been instituted,
the trial judge, in view of the evidence adduced, rendered
judgment on the 5th of February of said year, sentencing
the accused to the penalty of death, to indemnify the heirs
of the deceased in the sum of P1,000, and to pay the costs.
The case has been submitted to this court for review.
From the above facts fully substantiated in this case, it
appears beyond doubt that the crime of murder, defined
and punished by article 403 of the Penal Code, was
committed on the person of the Chinaman Choa, in that the
deceased was unexpectedly and suddenly attacked,
receiving a deep cut on the left shoulder at the moment
when he had just put down the load that he was carrying
and was about to start for the door of the store in front of
which he stopped for the purpose of entering therein. As a
result of the tremendous wound inflicted upon him by the
heavy and unexpected blow, he was unable, not only to
defend himself, apart from the fact that he was unarmed,
but even to flee from the danger, and falling to the ground,
died in an hour's time. It is unquestionable that by the
means and form employed in the attack the violent death of
the said Chinaman was consummated with deceit and
treachery (alevosia), one of the five qualifying
circumstances enumerated in the aforesaid article as
calling for the greatest punishment.
When Manalinde was arrested he pleaded guilty and
confessed that he had perpetrated the crime herein
50
mentioned, stating that his wife had died about one
hundred days before and that he had come from his home
in Catumaldu by order of the Datto Rajamudah Mupuck,
who had directed him to go juramentado in Cotabato in
order to kill somebody, because the said Mupuck had
certain grievances to avenge against a lieutenant and a
sergeant, the said datto further stating that if he, Manalinde,
was successful in the matter, he would give him a pretty
woman on his return, but that in case he was captured he
was to say that he performed the killing by order of
Maticayo, Datto Piang, Tambal and Inug. In order to carry
out his intention to kill two persons in the town of Cotabato
he provided himself with a kris, which he concealed in
banana leaves, and, traveling for a day and a night from his
home, upon reaching the town, attacked from behind a
Spaniard who was seated in front of a store and, wounding
him, immediately after attacked a Chinaman, who was
close by, just as the latter was placing a tin that he was
carrying on the ground and he was about to enter a store
near by, cutting him on the left shoulder and fleeing at
once; he further stated that he had no quarrel with the
assaulted persons.
From the statements made by the accused his culpability
as the sole-confessed and self-convicted author of the
crime in question has been unquestionably established, nor
can his allegation that he acted by order of Datto Mupuck
and that therefore he was not responsible exculpate him,
because it was not a matter of proper obedience. The
excuse that he went juramentado by order of the said datto
and on that account killed only two persons, whereas if he
had taken the oath of his own volition he would have killed
many more, because it is the barbarous and savage
custom of a juramentado to kill anyone without any motive
or reason whatever, can not under any consideration be
accepted or considered under the laws of civilized nations;
such exhibitions of ferocity and savagery must be
restrained, especially as the very people who up to the
present time have been practicing such acts are well aware
that the established authorities in this country can never
allow them to go unpunished, and as has happened a
number of times in towns where juramentados are in the
habit of appearing, the punishment of the author has
followed every crime so committed.
In the commission of the crime of murder the presence of
aggravating circumstances 3 and 7 of article 10 of the
Penal Code should be taken into consideration in that
promise of reward and premeditation are present, which in
the present case are held to be generic, since the crime
has already been qualified as committed with the treachery,
because the accused confessed that he voluntarily obeyed
the order given him by Datto Mupuck to go juramentadoand
kill some one in the town of Cotabato, with the promise that
if he escaped punishment he would be rewarded with a
pretty woman. Upon complying with the order the accused
undoubtedly acted of his own volition and with the
knowledge that he would inflict irreparable injury on some
of his fellow-beings, depriving them of life without any
reason whatever, well knowing that he was about to commit
a most serious deed which the laws in force in this country
and the constituted authorities could by no means permit.
Datto Mupuck, who ordered and induced him to commit the
crimes, as well as the accused knew perfectly well that he
might be caught and punished in the act of committing
them.
As to the other circumstance it is also unquestionable that
the accused, upon accepting the order and undertaking the
journey in order to comply therewith, deliberately
considered and carefully and thoughtfully meditated over
the nature and the consequences of the acts which, under
orders received from the said datto, he was about to carry
out, and to that end provided himself with a weapon,
concealing it by wrapping it up, and started on a journey of
a day and a night for the sole purpose of taking the life of
two unfortunate persons whom he did not know, and with
whom he had never had any trouble; nor did there exist any
reason which, to a certain extent, might warrant his
perverse deed. The fact that the arrangement between the
instigator and the tool considered the killing of unknown
persons, the first encountered, does not bar the
consideration of the circumstance of premeditation. The
nature and the circumstances which characterize the crime,
the perversity of the culprit, and the material and moral
injury are the same, and the fact that the victim was not
predetermined does not affect nor alter the nature of the
crime. The person having been deprived of his life by
deeds executed with deliberate intent, the crime is
considered a premeditated one as the firm and persistent
intention of the accused from the moment, before said
death, when he received the order until the crime was
committed in manifestly evident. Even though in a crime
committed upon offer of money, reward or promise,
premeditation is sometimes present, the latter not being
inherent in the former, and there existing no incompatibility
between the two, premeditation can not necessarily be
considered as included merely because an offer of money,
reward or promise was made, for the latter might have
existed without the former, the one being independent of
the other. In the present case there can be no doubt that
after the crime was agreed upon by means of a promise of
reward, the criminal by his subsequent conduct showed a
persistency and firm intent in his plan to carry out the crime
which he intentionally agreed to execute, it being
immaterial whether Datto Mupuck did or did not conceive
the crime, once Manalinde obeyed the inducement and
voluntarily executed it.

The facts in this case are quite different from those in the
proceedings instituted by the United States vs. Caranto et
al., wherein the decision on page 256 of Volume IV of the
Philippine Reports was rendered, as may be seen from the
mere perusal of the statement of facts. It is also different
from the case where a criminal who has made up his mind
to kill a certain individual kills a person other than the object
of his criminal intent. On going to Cotabato the Moro
Manalinde intended to and did kill the first two persons he
encountered, and the fact that the victim was not
predetermined does not alter the nature, conditions, or
circumstances of the crime, for the reason that to cause the
violent death of a human being without any reasonable
motive is always punishable with a more or less grave
penalty according to the nature of the concurrent
circumstances.

For the above reasons and in view of the fact that no

mitigating circumstance is present to neutralize the effects
of the aggravating ones, it is our opinion that the judgment
appealed from should be affirmed with costs provided
however, that the penalty imposed on the culprit shall be
executed in accordance with the provisions of Acts. Nos.
451 and 1577, and that in the event of a pardon being
granted he shall likewise be sentenced to suffer the
accessory penalties imposed by article 53 of the Penal
Code. So ordered.

Arellano, C. J., Johnson, Carson, and Moreland,

JJ., concur.

51
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-32914 August 30, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LAUREANO SANGALANG, accused-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant
Solicitor General Octavio R. Ramirez and Solicitor Ma.
Rosario Quetulio Losa for plaintiff-appellee.
Narciso V. Cruz, Jr. for accused-appellant.
AQUINO, J.:p
This is a murder case. The testimonies of the two
prosecution eyewitnesses disclose that at around six
o'clock in the morning of June 9, 1968 Ricardo Cortez left
his nipa hut located at Sitio Adlas, Barrio Biluso, Silang,
Cavite to gather tuba from a coconut tree nearby. Flora
Sarno, his wife, was left inside the hut. While he was on top
of the tree gathering tuba, he was struck by a volley of
shots. He fell to the ground at the base of the coconut tree.
His wife Flora heard three successive shot coming south of
the hut. She went outside the hut. From a distance of about
twenty-five meters, she saw five men, each armed with a
long firearm, firing at her husband. He was already
wounded and was lying on the ground at the foot of the
coconut tree. His assailants were about five meters away
from him.
She recognized Laureano Sangalang as one of the five
armed men who were firing at her husband. She and her
brother Ricardo had known Sangalang since their
childhood. She also recognized Conrado Gonzales, Irineo
Canuel, Perino Canuel and Eleuterio Cuyom as the other
malefactors.
Flora ran towards the place where her husband had fallen.
She shouted, "Bakit ninyo pinagbabaril ang aking asawa".
The five persons fired at her. She was then about twenty
meters away from them. She retreated to the hut for cover.
She heard some more shots. After the lapse of about five
minutes, Laureano Sangalang and his companions left the
place. When Flora returned to the spot where her husband
was prostrate, he was already dead.
On the occasion already described, Ricardo Sarno, twenty-
seven years old, a brother of Flora, was inside his own nipa
hut which was about ten meters away from Flora's hut. He
was drinking coffee. His wife and children were eating
breakfast. He heard several shots. He came out of his hut.
He saw his brother-in-law being shot by Laureano
Sangalang, Eleuterio Cuyom, Perino Canuel, Irineo Canuel
and Conrado Gonzales. He saw Sangalang using a Garand
carbine in shooting his brother-in-law. The latter fell from
the top of the coconut tree after he was shot (10 tsn). His
sister Flora was trying to approach her husband but she
had to flee to her hut when Sangalang and his companions
fired at her. He wanted to join her but he was likewise fired
upon by the five men. So, he retired and took refuge in his
own hut.
52
Later, Sarno saw his sister Flora, sitting inside her hut. He
followed her after she left the hut and went to see her dead
husband, who was lying on the ground, face up, at the
base of the coconut tree. When he noticed that his brother-
in-law was already dead, he gathered his children and
brought them to Sitio Biga, which was more or less thirty
meters away from his hut in Sitio Adlas. Ricardo reported
the killing to the chief of police who went to the scene of the
crime with some policemen and Constabularymen.
The necropsy report shows that the twenty-five-year-old
Cortez sustained twenty-three gunshot wounds on the
different parts of the body, fourteen of which were
entrance-wounds, and nine were exit-wounds (Exh. A and
B). He died due to the multiple gunshot wounds (Exh. C).
On June 10, 1968 or on the day following the killing, Flora
and Ricardo were interrogated by the Silang police. They
executed sworn statements before the Municipal Judge
pointing to Laureano Sangalang, Conrado Gonzales, Irineo
Canuel, Perino Canuel and Eleuterio Cuyom as the
assassins of Ricardo Cortez. Flora said in her statement
that she knew those persons because from time to time
they used to pass by her place. They resided at Barrio
Capitula, Dasmariñas, which is near Barrio Adlas. On the
basis of those statements, the police filed on June 10 in the
Municipal Court a complaint for murder against the five
aforenamed persons. Sangalang was arrested. He posted
bail in the sum of P50,000 on June 13. He waived the
second stage of the preliminary investigation. The other
accused have not been apprehended. On August 8, 1968
the Provincial Fiscal filed an information for murder against
Sangalang.
After trial, the Court of First Instance of Cavite, Tagaytay
City Branch, rendered a judgment convicting Sangalang of
murder, sentencing him to reclusion perpetua and ordering
him to pay the heirs of Ricardo Cortez an indemnity of
twelve thousand pesos and to pay his widow moral
damages in the sum of ten thousand pesos (Criminal Case
No. TG-162). Sangalang appealed.
The appellant, a fifty-six-year old farmer, admitted that he
knew Cortez and that he knows his wife, Flora Sarno. He
pleaded an alibi. He declared that in the afternoon of June
8, 1968 he and Crispulo Mendoza went to the house of
Julian Gatdula at Dapitan Street, Sampaloc, Manila. He
arrived at Gatdula's place at six o'clock. He wanted to
borrow money from Gatdula to defray the matriculation fees
of his children.
As Gatdula had no money at that time, he advised
Sangalang to wait until morning. He would try to raise the
sum of two hundred pesos which Sangalang desired to
borrow. Sangalang and Mendoza agreed. They allegedly
slept in Gatdula's house on the night of June 8th. The next
morning, they breakfasted in that house. At about ten
o'clock on June 9, Gatdula delivered the two hundred
pesos to Sangalang. He and Mendoza then went to the
Central Market in Manila and then to Quiapo. They returned
to Cavite and arrived at seven o'clock in the evening of
June 9 in Barrio Capdula. Gatdula and Mendoza
corroborated Sangalang's alibi.
In this appeal Sangalang insists on his alibi and impugns
the credibility of the prosecution eyewitnesses, Mrs. Cortez
and the victim's brother-in-law, Ricardo Sarno. The basic
issue is whether their eyewitness-testimony that they saw
appellant Sangalang as one of the five armed persons, who
riddled Cortez with fourteen gunshot wounds of entry, is
sufficient to overcome his alibi. In essence, the case
projects the ever recurring conflict in criminal jurisprudence
between positive identification and alibi.

The trial court rejected appellant's alibi. It noted that

although his witnesses, Mendoza and Gatdula, learned of
his arrest, and Mendoza even visited him in the municipal
jail, Sangalang and his witnesses did not interpose the
defense of alibi when he was investigated by the police and
when he was summoned at the preliminary investigation.

Sangalang points to certain discrepancies in the

declarations of Mrs. Cortez and her brother Ricardo Sarno.
Those inconsistencies, which are not glaring, strengthen
their credibility and show that their testimonies were not
coached nor rehearsed. The discrepancies may be
attributed to deficiencies in observation and recollection, or
misapprehension of the misleading and confusing
questions during cross-examination, or to the defective
translation of the questions and answers but they do not
necessarily indicate a wilful attempt to commit falsehood
(People vs. Selfaison, 110 Phil. 839; People vs. Resayaga,
L-23234, December 26, 1973, 54 SCRA 350).

The controlling fact is that Mrs. Cortez and Sarno clearly

and consistently testified that they saw Sangalang, a
person already well-known to them, among the five armed
persons who shot Ricardo Cortez. That unwavering
identification negates appellant's alibi.

The prosecution did not prove the motive for the killing. On
the other hand, Sangalang did not show that Mrs. Cortez
and Sarno were impelled by a malicious desire to falsely
incriminate him. .

Counsel de oficio meticulously examined the contradictions

and deficiencies in the evidence for the prosecution. He
made a spirited defense of the appellant. However, his
efforts failed to cast any reasonable doubt on Sangalang's
complicity in the killing.

The victim was shot while he was gathering tuba on top of

a coconut tree. He was unarmed and defenseless. He was
not expecting to be assaulted. He did not give any
immediate provocation. The deliberate, surprise attack
shows that Sangalang and his companions employed a
mode of execution which insured the killing without any risk
to them arising from any defense which the victim could
have made. The qualifying circumstance of treachery
(alevosia), which was alleged in the information, was duly
established (See art. 14[16], Revised Penal Code). Hence,
the killing can be categorized as murder (See People vs.
Sedenio, 94 Phil. 1046). Treachery absorbs the
aggravating circumstance of band(U. S. vs. Abelinde, 1
Phil. 568). Evident premeditation, which was alleged in the
information, was not proven.

The trial court correctly imposed the penalty of reclusion

perpetua on Sangalang (Arts. 64[1] and 248, Revised
Penal Code).

Finding no error in its judgment, the same is affirmed with

costs against the appellant.

SO ORDERED.

Zaldivar (Chairman), Fernando, Barredo and Fernandez,

JJ., concur.

Antonio, J., took no take part.

53
 FIRST DIVISION
[G.R. No. 115431. April 18, 1996]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. JOSE TORREFIEL, accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; ALIBI; CANNOT
PREVAIL OVER POSITIVE IDENTIFICATION OF
THE ACCUSED AND ABSENT PHYSICAL
IMPOSSIBILITY TO BE AT THE SCENE OF THE
CRIME. - It is well-settled that the defense of alibi
cannot prevail over the positive identification of the
accused. Furthermore, for alibi to prosper, the
accused must establish not only that he was
somewhere else when the crime was committed but
that it was also physically impossible for him to have
been at the scene of the crime at the time of its
commission.
2. ID.; ID.; CREDIBILITY OF WITNESS; UPHELD
ABSENT IMPROPER MOTIVE. - It is significant to
note that no improper motive can be imputed to
Realidad Mangilog as would make her testify falsely
against accused-appellant, hence her testimony is
worthy of full faith and credit.
3. ID.; ID.; FACTUAL FINDINGS OF THE COURT OF
APPEALS CONCLUSIVE AND OUGHT NOT TO BE
DISTURBED; EXCEPTION. - The Court of Appeals
appreciated abuse of superior strength, aid of armed
men and evident premeditation as aggravating
circumstances. These findings are factual and the rule
is that findings of the Court of Appeals upon factual
questions are conclusive and ought not to be
disturbed unless shown to be contrary to the evidence
on record, and, in this case, there is no such showing.
4. CRIMINAL LAW; CONSPIRACY; MAY BE INFERRED
FROM THE ACTS OF THE ACCUSED WHICH
INDICATE THEIR COMMON INTENTION TO
COMMIT THE CRIME. This contention we also find
untenable, conspiracy being clearly manifest in this
case as was correctly found by the Court of Appeals.
For collective responsibility to be established, it is not
necessary that conspiracy be proved by direct
evidence of a prior agreement to commit the crime as
only rarely would such an agreement be
demonstrable since in the nature of things criminal
undertakings are rarely documented by agreement in
writing. Conspiracy may be inferred from the acts of
the accused immediately prior to, during and right
after the shooting of the victim which indicate their
common intention to commit the crime. The record
shows that: (1) all the accused which include
accused-appellant arrived together at the scene of the
killings; (2) they were all fully armed; (3) three of them
simultaneously shot to death Leopoldo Mangilog,
while an undetermined number shot and stabbed to
death Reynaldo Mangilog; (4) the attack on the two
victims was executed simultaneously; and (5) the
accuseds statement to the effect that the victims were
responsible for the fact that the military men were
running after them. This tends to establish a motive
on their part to kill the victims. All these indubitably
indicate a concerted effort on the part of the accused
on a common design to kill the victims.
5. ID.; ID.; THE ACT OF ONE CONSPIRATOR IS THE
ACT OF ALL. - Conspiracy having been adequately
54
shown, all the accused are answerable as co-
principals regardless of the degree of their
participation. In fact, it is not necessary to ascertain
the individual participation in the final liquidation of the
victims or to ascertain the precise modality or extent
of participation of each individual conspirator as the
applicable rule is that the act of one conspirator is the
act of all of them. It hardly matters, therefore, that
accused-appellant did not actually participate in the
killing of Reynaldo Mangilog or of Leopoldo Mangilog.
6. ID.; QUALIFYING CIRCUMSTANCE; TREACHERY;
PRESENT WHEN VICTIMS WERE CLEARLY NOT
IN ANY POSITION TO DEFEND THEMSELVES;
CASE AT BAR. - As alleged in the informations and
as correctly observed by the Solicitor General, the
killing of the victims was qualified by treachery.
Leopoldo Mangilog was shot while he was serving the
accused coffee or shortly thereafter. Reynaldo
Mangilog, on the other hand, was shot and stabbed to
death while he was taking a bath. It may be added
that the victims were naturally unarmed at that time
and their execution was done so early in the morning,
that is, when they had practically just awakened.
Under the circumstances, the victims were clearly not
in any position to defend themselves from the sudden
and unexpected attack of the accused. These
circumstances are manifestly indicative of the
presence of the conditions under which treachery may
be appreciated, i.e., the employment of means of
execution that gives the person attacked no
opportunity to defend himself or to retaliate, and that
said means of execution was deliberately or
consciously adopted.
7. ID.; ID.; ID.; ABSORBS THE CIRCUMSTANCES OF
ABUSE OF SUPERIOR STRENGTH AND AID OF
ARMED MEN. - However, we believe, and so hold,
that treachery absorbs the circumstances of abuse of
superior strength and aid of armed men, as it appears
that the accused saw to it that they were armed and
far outnumbered the victims precisely to ensure the
accomplishment of their criminal objective.
8. ID.; MURDER; PROPER IMPOSABLE PENALTY. -
Under Article 248 of the Revised Penal Code, the
prescribed penalty for murder is reclusion temporal in
its maximum period to death. Since we find accused-
appellant guilty beyond reasonable doubt of the crime
of murder qualified by treachery in Criminal Cases
Nos. 2909 and 2910 and that the generic aggravating
circumstance of evident premeditation was also
attendant, the penalty of reclusion perpetua should be
imposed in each case, applying Article 63 of the
Revised Penal Code and considering the proscription
against the imposition of the death penalty at the time
the crimes were committed.
APPEARANCES OF COUNSEL
The Solicitor General for plaintiff-appellee.
Cyril A. Tangle for accused-appellants.
DECISION
HERMOSISIMA, JR., J.:
Accused-appellant Jose Torrefiel; Hilario Masgong
alias Mark; Casiano Masgong alias Manny; Saturnino
Suyod alias Ka Eddie; Jerry Delicano alias Ka Cocoy;
Luciano Solanoy, Jr., alias Ka Balot; Noel Semira alias Ka
Nido; Ricky David alias Ka Macky; and Alex Francisco alias
Ka Jing, were charged in Criminal Cases Nos. 2909 and
2910 for Murder and in Criminal Case No. 2911 for
Robbery before the Regional Trial Court, Branch 8, Kalibo,
Alklan. These cases were, upon agreement of the parties,
jointly tried, since they arose from the same incident and
involved the same parties. The trial proceeded as against
the accused-appellant Jose Torrefiel only, the rest of the
accused having remained at large.
After trial, the court a quo convicted accused-
appellant1 in each of the cases, the dispositive portions of
which are quoted hereinbelow:
In Criminal Case No. 2909 for Murder:
WHEREFORE, this Court finds the accused, Jose Torrefiel,
guilty beyond reasonable doubt of the crime of murder and
hereby sentences the accused to a penalty of imprisonment
of Seventeen (17) years, Four (4) months and One (1) day
to Eighteen (18) years and Eight (8) months.
The accused is hereby ordered also to indemnify the family
of the victim the amount of FIFTY THOUSAND PESOS
(P50,000.00) by way of damages. x x x2
In Criminal Case No. 2910 for Murder:
WHEREFORE, this Court finds the accused, Jose Torrefiel,
guilty beyond reasonable doubt of the crime of murder and
hereby sentences the accused to a penalty of imprisonment
of Seventeen (17) years, Four (4) months and One (1) day
to Eighteen (18) years and Eight (8) months.
The accused is hereby ordered also to indemnify the family
of the victim the amount of FIFTY THOUSAND PESOS
(P50,000.00) by way of damages. x x x3
In Criminal Case No. 2911 for Robbery:
WHEREFORE, this Court finds the accused Jose Torrefiel
guilty beyond reasonable doubt of the crime of Robbery
and sentences the accused to suffer the penalty of Twelve
(12) years and One (1) day to Fourteen (14) years and
Eight (8) months. x x x.4
Accused-appellant Jose Torrefiel, appealed to the
Court of Appeals. After considering the evidence and the
law involved, the Court of Appeals affirmed the judgment of
conviction in all the cases but refrained from entering
judgment in Criminal Cases Nos. 2909 and 2910 for
murder, having ascertained that the proper imposable
penalty for each of said crimes is reclusion perpetua, and
instead, certified these two (2) cases to us for final
determination pursuant to Section 13 of Rule 124 of the
1985 Rules on Criminal Procedure.
The facts as correctly summarized by the prosecution
in its Brief are as follows:5
On May 26, 1989 at about 5:00 oclock in the morning at
Barangay Naligusan, Ibajay, Aklan, Realidad Mangilog
woke up early to prepare their breakfast. Her husband
Leopoldo Mangilog and her son Reynaldo were about to
join her downstairs, when someone knocked at the kitchen
backdoor (TSN, March 21, 1990, pp. 3-4).
It was Leonardo who opened the door. When the door was
opened appellant Jose Torrefiel armed with a bolo and a
hand gun entered the house first followed by Masiano
Masgong, Hilario Masgong, Alex Francisco, Saturnino
Suyod and Noel alias Nido in that order, who were all
armed with long firearms. (TSN, Ibid., p. 5)
The group greeted Leopoldo as How are you Tay? to which
the latter answered as usual. Leopoldo even served the
newcomers with coffee, but because the coffee was not
55
sufficient for them, Realidad asked Hermogenes Calizo,
who was then the errand boy of the Mangilog (sic), to buy
coffee from the store. (TSN, Id., pp. 5-6).
The group of appellant Torrefiel did not even touch or taste
the coffee served them by Leopoldo. Instead, appellant,
Casiano Masgong and Satur Suyod aimed their guns at
Leopoldo and started shooting him to death (TSN, Id., p.
6).6 Simultaneous to the shooting of Leopoldo inside the
house by the group of appellant was the shooting and
stabbing of Reynaldo who was then taking a bath inside the
bathroom located outside of the house by the other
members of the group who did not enter the house.
(TSN. id., p. 7)
After the killing of Leopoldo and Reynaldo, the accused
ransacked the house and took P500.00 cash, wrist watch,
kitchen wares, grocery items, chickens and guitar.
(TSN, Id., p. 10)
Before the accused left the house of the victims, they even
fired their guns at random. They were blaming the victims
to be responsible to the incident why the military was
running after them. They were also telling the people along
the road that the fish is okey and could be ready to be
butchered (Id., p. 11).
Accused-appellant invoked the defense of alibi,
claiming that at about 7:00 oclock in the morning of May 26,
1989, he was at the house of Barangay Captain Benedicto
Puod in Barangay Agbalogo, Makato, Aklan, which can be
reached in an hour and a half( 1 1/2) from Barangay
Naligusan, Ibajay, Aklan, the scene of the incident. He had
gone on vacation to Barangay Agbalogo on May 22,
1989 and attended the fiesta on May 25, 1989. He had
remained in the said barangay since then upon the advice
of his wife not to return to Barangay Naligusan, Ibajay,
Aklan, appellants place of residence, as the situation there
was somewhat hot.7 Benedicto Puod confirmed appellants
claim as to his whereabouts in the morning of May 26,
1989, recounting that he and appellant were, indeed,
together drinking alcoholic drinks from 7:00 to 11:00
oclock in the morning on the occasion of the birthday of his
child.8 In addition, Pedro Tosio as a witness testified as to
the presence of appellant at his house in Barangay
Agbalogo in the morning until about 5:00 oclock in the
afternoon of May 25, 1989, the day of the fiesta, declaring
further that he also saw appellant pass by his house
on May 26, 1989.9
In his appeal, accused-appellant interposed the
following assignment of errors:
I
THE LOWER COURT ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY OF THE CRIME OF
MURDER IN CRIMINAL CASE NO. 2909.
II
THE LOWER COURT ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY OF THE CRIME OF
MURDER IN CRIMINAL CASE NO. 2910.
III
THE LOWER COURT ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY OF THE CRIME OF
ROBBERY IN CRIMINAL CASE NO. 2911.10
 On the first and third assignment of errors, accused-
appellant maintains his defense of alibi, stressing that, not
being around at the time and place of the incident as he
was at Barangay Agbalogo, Makato, Aklan, he could not
have murdered Leopoldo Mangilog and robbed the
Mangillogs of their personal belongings.
We are not persuaded.
It is well-settled that the defense of alibi cannot prevail
over the positive identification of the
accused.11 Furthermore, for alibi to prosper, the accused
must establish not only that he was somewhere else when
the crime was committed but that it was also physically
impossible for him to have been at the scene of the crime
at the time of its commission.12
That accused-appellant had been positively identified
as one of the culprits by prosecution witness Realidad
Mangilog cannot be doubted. The Mangilogs and the
accused-appellant had known each other for years as
neighbors. Accused-appellant whose parents reside in
Barangay Agbalogo, Makato, Aklan, established residence
in Barangay Naligusan, Ibajay, Aklan when he got married
to a resident there. Since his house is only about one
hundred and fifty (150) meters away from that of the
Mangilogs, there were occasions when accused-appellant
would visit the Mangilogs, usually for coffee, and that
Leopoldo Mangilog would also go to the accused-
appellants house. Indeed, eyewitness Realidad Mangilog
knows the accused-appellant so well that she could not
have been mistaken in identifying appellant as one of those
armed men responsible for the death of her husband and
son on that fateful morning of May 26, 1989. She testified
thus:
Q. When your husband open (sic) the door, was
there somebody who got inside?
A. Yes, sir.
Q. Where were you at that time?
A. I am (sic) at that time at the door dividing the
sala and the dining room.
xxx xxx xxx
Q. Were you able to recognized (sic) those
persons who entered your house?
A. I can recognized (sic) Jose Torrefiel leading
the group and Masiano Masgong alias
Manny, Alex Francisco followed by Satur
or Saturnino Suyod and the other one was
Noel Semira alias Nido.13
Moreover, the two other prosecution witnesses,
Coreto Maguirang and Hermogenes Calizo, confirmed the
presence of accused-appellant in Barangay Naligusan,
Ibajay, Aklan at the time of the incident in question.
Maquirang testified that while he watched over his carabao
which was grazing on May 26, 1989 at around 5:00
oclock in the morning, he saw the appellant and his group
as they passed by him from a distance of about ten (10)
meters heading towards the direction of the house of
Leopoldo Mangilog in Barangay Naligusan, Ibajay,
Aklan.14 He could not be mistaken as to appellants identity
since he had on several occasions seen appellant together
with the same group of armed men.15 Calizo, on the other
hand, claimed that he had seen appellant face to face in
the house of the Mangilogs that same morning of May 26,
1989 shortly before the subject incident occurred since at
that time he was living in said house. He only happened to
be sent out by Realidad Mangilog to buy coffee so he did
56
not get to see the actual killing of Leopoldo and Reynaldo
Mangilog.16
It is significant to note that no improper motive can be
imputed to Realidad Mangilog as would make her testify
falsely against accused-appellant; hence her testimony is
worthy of full faith and credit.17
Evidently complementing the positive identification of
accused-appellant as one of the perpetrators of the crimes
charged is his failure to prove that it was physically
impossible for him to be at Barangay Naligusan, Ibajay,
Aklan at the time of the incident, assuming that his claim
that he went to the house of Barangay Captain Puod at
7:00 oclock in the morning of May 26, 1989 was true. As
testified to by appellant himself, it would take just one and a
half (1 ) hours to reach Barangay Naligusan, Ibajay, Aklan
from Barangay Agbalogo, Makato, Aklan. Needless to
state, it would not at all be impossible for appellant to be at
Barangay Agbalogo at 7:00 oclock in the morning or some
two hours after the crimes were committed at Barangay
Naligusan.
In his second assignment of error, accused-appellant
contends that he had nothing to do with the killing of the
victim Reynaldo Mangilog, obviously relying on the
testimony of Realidad Mangilog to the effect that Reynaldo
Mangilog was shot and stabbed to death by the members
of appellants group who stationed themselves outside the
house.
This contention we also find untenable, conspiracy
being clearly manifest in this case as was correctly found
by the Court of Appeals. For collective responsibility to be
established, it is not necessary that conspiracy be proved
by direct evidence of a prior agreement to commit the
crime18 as only rarely would such an agreement be
demonstrable since in the nature of things criminal
undertakings are rarely documented by agreement in
writing.19 Conspiracy may be inferred from the acts of the
accused immediately prior to, during and right after the
shooting of the victim which indicate their common intention
to commit the crime.20
The record shows that: (1) all the accused which
include accused-appellant arrived together at the scene of
the killings; (2) they were all fully armed; (3) three of them
simultaneously shot to death Leopoldo Mangilog, while an
undetermined number shot and stabbed to death Reynaldo
Mangilog; (4) the attack on the two victims was executed
simultaneously; and (5) the accuseds statement to the
effect that the victims were responsible for the fact that the
military men were running after them. This tends to
establish a motive on their part to kill the victims. All these
indubitably indicate a concerted effort on the part of the
accused on a common design to kill the victims.
Conspiracy having been adequately shown, all the
accused are answerable as co-principals regardless of the
degree of their participation.21 In fact, it is not necessary to
ascertain the individual participation in the final liquidation
of the victims22 or to ascertain the precise modality or
extent of participation of each individual conspirator as the
applicable rule is that the act of one conspirator is the act of
all of them.23 It hardly matters, therefore, that accused-
appellant did not actually participate in the killing of
Reynaldo Mangilog or of Leopoldo Mangilog.
As alleged in the informations and as correctly
observed by the Solicitor General, the killing of the victims
was qualified by treachery. Leopoldo Mangilog was shot
while he was serving the accused coffee or shortly
thereafter. Reynaldo Mangilog, on the other hand, was shot
and stabbed to death while he was taking a bath. It may be
added that the victims were naturally unarmed at that time
and their execution was done so early in the morning, that
is, when they had practically just awakened. Under the
circumstances, the victims were clearly not in any position
to defend themselves from the sudden and unexpected
attack of the accused.24 These circumstances are

manifestly indicative of the presence of the conditions

under which treachery may be appreciated, i.e., the
employment of means of execution that gives the person
attacked no opportunity to defend himself or to retaliate,
and that said means of execution was deliberately or
consciously adopted.25

The Court of Appeals appreciated abuse of superior

strength, aid of armed men and evident premeditation as
aggravating circumstances. These findings are factual and
the rule is that findings of the Court of Appeals upon factual
questions are conclusive and ought not to be disturbed
unless shown to be contrary to the evidence on
record,26 and, in this case, there is no such showing.
However, we believe, and so hold, that treachery absorbs
the circumstances of abuse of superior strength and aid of
armed men, as it appears that the accused saw to it that
they were armed and far outnumbered the victims precisely
to ensure the accomplishment of their criminal objective. 27

Under Article 248 of the Revised Penal Code, the

prescribed penalty for murder is reclusion temporal in its
maximum period to death. Since we find accused-appellant
guilty beyond reasonable doubt of the crime of murder
qualified by treachery in Criminal Cases Nos. 2909 and
2910 and that the generic aggravating circumstance of
evident premeditation was also attendant, the penalty
of reclusion perpetua should be imposed in each case,
applying Article 63 of the Revised Penal Code and
considering the proscription against the imposition of the
death penalty at the time the crimes were committed.

WHEREFORE, the decisions of the trial court are

hereby AFFIRMED with the MODIFICATION that the
accused-appellant is sentenced to suffer the penalty
of reclusion perpetua for each case of murder (Criminal
Cases Nos. 2909 and 2910).

SO ORDERED.

Padilla (Chairman), Bellosillo, Vitug, and Kapunan,

JJ., concur.

57
 EN BANC
[G.R. No. 125633. December 9, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ROLANDO ALFANTA y ALO, accused-
appellant.
DECISION
VITUG, J.:
Before this Court, by way of automatic review, is the
decision, dated 29 July 1996, of the Regional Trial Court of
Makati City, Branch 82, convicting[1] accused-appellant
Rolando Alfanta y Alo of rape with two aggravating
circumstances and sentencing him to suffer the extreme
penalty of death.
Rolando Alfanta was charged with the crime of rape in
an information that simply read:
That on or about the 26th day of August, 1995, in the City
of Makati, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, by means of
force and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge upon the
person of one NITA FERNANDEZ y JOSEFA against her
will and consent.[2]
When arraigned on 27 September 1995, accused-appellant
entered a plea of not guilty to the crime charged. Trial
thereupon ensued.
The evidence of the parties has been recited in good
detail by the trial court in its decision under review, thus:
The first prosecution witness was Dr. Noel Minay, Medico
Legal Officer of the National Bureau of Investigation who
testified that on August 27, 1995 at around 5:45 in the
afternoon, he performed a physical examination and
medico genital examination on one Nita Fernandez for
alleged rape. Upon physical examination he found mark
swelling on the left lower jaw or on the mandibular area left
portion; and, upon examination of the hymen, he found that
the labia majora and minora gaping, similar to the
appearance of a woman who had just given birth; or a
normal appearance as a result of several sexual
intercourses that had been performed. He submitted a
report on his findings (Exhibit A).
The next witness was Nita Fernandez, the offended party
alleged in the information who testified that on August 26,
1995 at around 12:00 o'clock midnight, while asleep in the
residence of a friend at AFOVAI Fort Bonifacio, Makati city,
a man whom she had not seen before suddenly entered
the house where she was sleeping, pulled her, boxed her
jaw and put his hand on her mouth, and told her that if she
will not obey him, he will kill her. She resisted, but could not
do anything. Thereafter, she was forced to climb a
fence. Because of fear, as the man was holding a bolo, she
followed. After climbing the fence, the man instructed her to
go to a vacant house. She followed, as instructed. While at
the vacant house, she was told to undress, she did
because of fear, as the man was holding a bolo. Thereafter,
the man embraced and kissed her. Then she was told to lie
down and told to separate her legs. The man inserted his
penis into her vagina. After inserting the mans penis to her
vagina, she was told to lie face down. She complied,
thereafter, the man inserted his penis into her anus. After
inserting the mans penis into her anus, she was told to turn
around face up. All these acts of the man hurt her. After
58
turning around face up, the man inserted his fingers in and
out into her private part. After the man had finished
inserting his fingers in and out of her private part, she was
told to go near him and lie beside him, and not to dress up
as he was going to take a rest and at the same time telling
her not to tell what happened to others saying that lahat ng
nirape ko ay pinatay ko dahil sa ayokong may
magsumbong. All the time the man was inserting his penis
and fingers into her private part and into her anus, she was
shouting: tulungan po ninyo ako,' but nobody
responded. Noticing that the man was already sleeping,
she suddenly got the knife at waist of the man and stab the
man on his chest. The knife broke. She suddenly grabbed
the bolo and hack the man several times. Thereafter, she
put on her dress, got hold of the bolo and ran to the signal
office of soldiers. When she arrived at the signal office of
soldiers, she told the persons she met that she killed a
man. The bolo was taken from her by the soldiers. With,
soldiers, they went to the place where she was raped. They
found the man lying down still alive. The man was brought
to the hospital. The man turned out to be accused Rolando
Alfanta y Alo. Thereafter, she executed an affidavit (Exh.
C), narrating what happened to her to the police; and was
brought to the NBI Medico-Legal Officer for examination.
On cross examination she testified that, from Valle Verde,
Pasig City, where she worked as housemaid, she went to
her friends house named Patrick because she brought
mongo and because she and Patricks wife Inday, are
friends, arriving in the house of Patrick at 6:30 in the
evening of August 26, 1995. She was not able to go back
to her place of work at Valle Verde, Pasig because it was
already late at night and was told to sleep at Patricks
house. Earlier that evening, at 9:00, she saw accused
passed by in front of the house. Aside from her two (2)
other persons slept in the house of Patrick, Inday and
son. She slept in the sala, while Inday and her son in a
room. The door of the house was closed, but was not
locked. In entering the house were she slept, one has to
reach the sala first. When awakened, she shouted, but
nobody heard her because they were sleeping and at the
same time the accused placed his hand on her mouth. She
was really afraid because she was boxed on her chest and
accused was holding a bolo. While outside the house she
was boxed. At the garage, which was not lighted, she was
told to undress. She followed, because of fear. Accused
also undressed himself. While accused was on top of her,
holding a bolo, she cried. Accused is not her
sweetheart. She even said, why will I hack him if he is my
sweetheart.
The last witness for prosecution was Lilia Hogar of the
Womens Desk Unit, Makati Police Station who testified that
she came into the possession of the bolo, Exh. D, because
Nita Fernandez was brought to Sub-Station A. The bolo,
which was brought by Nita Fernandez to the Military Signal
Village, was in turn given to the Central Police Desk
wherein she is the Investigator. After the bolo was handed
to her by the soldiers of the Signal Village, she conducted
an investigation. Based on her investigation, she learned
from Nita Fernandez that when Nita Fernandez woke up at
12:00 midnight on August 26, 1995, Nita Fernandez saw a
man standing beside her. Nita was punched on the left
portion of the face and ordered her to go outside, instructed
to climb over a fence on the other side of the house. After
climbing the fence, Nita Fernandez was told to undress,
was boxed on her breast and was told to lie down in a
vacant house owned by Captain Pascua, where suspect
raped Nita Fernandez. On their way to the hospital on
board the Makati Police car, she asked accused why he
rape Nita Fernandez. Accused answered that Fernandez
was not telling the truth because they were sweethearts.
Defense presented the accused. Accused testified that on
August 26, 1995, while at AFOVAI Village, Municipality of
Makati, fixing the fence of the house of General Renato
Icarma together with many other laborers, somebody told
him that his wife was waiting for him in the house of
Captain Pascua. At 10:00 oclock that evening, he went to
the house of Captain Pascua; and upon reaching the
house, he knocked, and called Patrick Augusto Ablon, the
caretaker of Captain Pascua. Belinda Ablon, the cousin of
Patrick Augusto Ablon, opened the door. After opening the
door, Nita Fernandez, his live-in partner for almost a year
came out, in an angry mood, because she has been
waiting for him for long, and asked him why he was late. He
explained that he did not expect her to come, as his
understanding with Nita Fernandez was, he will call her by
phone or write her before she comes. Then Nita Fernandez
told him that they talk outside as she was ashamed with the
neighbor, and they will disturb the child who was
sleeping. After half hour talking, he invited Nita to sleep. He
and Nita went to a vacant house, owned by a Colonel
passing a fence. When they arrived in the vacant house, it
was closed, so they slept in the terrace. He denied doing
what Nita Fernandez claimed he did. He claimed that, he
was surprised why Fernandez hacked him, for he knows of
no reason why Nita Fernandez will hack him. He believes
that Nita Fernandez concocted the story of rape because of
fear that he will file a case against Nita Fernandez for
hacking him.
carrying banig, pillow and blanket, and did not notice that
Nita was carrying a knife. Nobody live in the Colonels
house and was closed. They slept in the terrace of the
house on a cement flooring. While he was sleeping Nita
hacked him with a kitchen knife. When hacked, he just
said aray. The bolo was not used in hacking him. After
stabbing him, Nita left and went to the Military Police
leaving the kitchen knife. When the Military Police arrived,
he was no longer at the Colonels house because he went
to another house, where he slept. After he was stabbed, he
asked the assistance of Ablon. Ablon was the one who
called for the Military Police. He did not leave the colonels
house. He just stayed in the premises. Despite his wounds,
he was able to sleep and woke up at 5:00 in the
morning. When asked why Nita stabbed him, he said that it
was because he hurt Nita by holding Nita's hand and
pushing her on her chest when Nita insisted in leaving for
Valle Verde; and because he hurt Nita, he did not file a
complaint against Nita for hacking him.[3]
In the decretal portion of the decision, the court a
quo has pronounced judgment, thus:
WHEREFORE, this court finds accused Rolando Alfanta y
Alo guilty beyond reasonable doubt of the crime of rape,
penalized by Art. 335 of the Revised Penal Code, as
amended, with aggravating circumstances of nighttime and
ignominy, he is hereby sentenced to suffer the maximum
penalty of death, and indemnify complainant Nita
Fernandez the sum of P50,000.00, plus the costs of the
suit.[4]

Now before the Court, accused-appellant seeks the

On cross-examination, accused testified that, he has been
reversal of the conviction and the imposition of the death
staying in the house of General Romeo Icarma (the house
penalty decreed by the trial court; he contends that -
where he and 15 other workers were constructing a fence),
since 1990. His livelihood was, as a Mason, since 1993. In I. THE TRIAL COURT [HAS] ERRED IN FINDING AND
February 1995, the daughter of Nita Fernandez named, CONVICTING THE ACCUSED-APPELLANT OF THE
Lucia who is married to Lito introduced him to Nita. He and CRIME OF RAPE.
Nita became sweethearts in February 1995. They have not
live together because Nita was working at Valle
II. THE TRIAL COURT [HAS] ERRED IN TAKING INTO
Verde. They only meet during Nitas day off. He has been at
CONSIDERATION THE AGGRAVATING
Nitas place of work, but he used to call then at her
CIRCUMSTANCES OF NIGHTTIME AND IGNOMINY.[5]
telephone numbers which are 6326062 and 6356060.They
used to see each other at Gen. Icarmas place where he
The case can be described as not really being too far
lived. On August 26, 1995, when the incident in questioned
from the typical rape cases that have been previously
happened, Lucia and Lito were no longer residing at Gen.
reviewed by the Court. It is a case, like the instances before
Icarmas place because they were told to leave in April
it, of two people, each testifying on the same incident but
1993. On August 26, 1995, while in the squatters area, just
making a clearly discordant testimony. Since only the
100 meters away from the house of Gen. Icarma, Nita
participants could directly testify on the sexual congress,
came, looking for him. Because Nita does not know the
here conceded to have taken place, extreme care is
workers in Gen. Icarmas house, Nita left and went to the
observed in evaluating the respective declarations of the
house of Captain Pascua, just at the back of the house of
complainant and the accused. The doctrinally accepted rule
Gen. Icarma. While at the squatters area, Melchor Rudy
is to accord great respect over the assessment of the trial
Abella told him that Nita was looking for him.He went to the
court on the credibility of the witnesses and, in the usual
house of Captain Pascua. At Captain Pascuas place, he
words of similar import employed by the Court, it would be
met Nita. Present in the house of Captain Pascua were
best not to disturb the findings of the court which has heard
Augusto Ablon, his wife Rubylin, Belinda, a cousin and a
the evidence except only when a material or substantial
small child who were all awake, except the child. Although
fact has truly been overlooked or misappreciated which if
Ablon was very much willing to accommodate him in
properly taken into account can alter the outcome of the
Ablons house, he brought Nita to the house of the Air Force
case.[6] Regrettably for accused-appellant, no such
Colonel because if it rains, there is a roof to protect them
exceptive instances of possible oversight are perceived or
and ashamed to stay at Ablons house. Even Nita does not
evident in this case.
like to sleep in Ablons place, saying that instead of sleeping
at Ablons place, she prefers to go back at Valle Verde. He Complainant gave a thorough narrative account, so
did not allow Nita to go back at Valle Verde because it was found to be credible by the trial court and by this Court as
already late at night and if anything happens to her, her well, of what had transpired during the late hour of the night
daughter who knows his relationship with Nita will blame in question.
him. He did not bring Nita to Gen. Icarmas house because
it is crowded and the Colonels house is just 20 meters from Prosecutor Manola:
Captain Pascuas house. They went to the Colonels house,
climbing the fence. When they climbed the wall, he was

59
Q Mrs. Witness will you kindly tell the Honorable Court
where you were on August 26, 1995 at around
12:00 oclock midnight?
A At Fort Bonifacio.
Q What city or municipality?
A I do not know but it must be here sir.
Q Meaning Makati City?
A Yes sir.
Q Why were you there on that date and time Mrs.
Witness?
A I was sleeping in my friends residence.
Court:
Q What is the address of that friends residence at Fort
Bonifacio?
A At AFOVAI Fort Bonifacio Makati sir.
Q Why were you there at that time?
A Because I always go there and my sons residence is
beside the house of my friend sir.
Court: Proceed fiscal:
Pros. Manola:
Q Now, while you were there on that date and time at
the house of your friend in AFOVAI Fort Bonifacio
Makati City do you recall of any unusual incident
that happened?
A There was sir.
Q Will you kindly tell what that incident was?
A During that time while I was sleeping in the residence
of my friend suddenly there was a man who
entered the house where I was sleeping.
Q So when you saw that man entered the house what
did he do if any?
A I stood up because he was pulling me and then he
put his hand in my mouth sir.
Q What else happened after that?
A When I was resisting he boxed me and at that time he
was holding a bolo and he said if I will not obey
him he will be going to kill me sir.
Q After that what transpired next Mr. Witness?
A He forced me to climb the fence and then I saw he
was holding a bolo.
Q Did you climb over the fence?
A I climb sir because he forced me to climb the fence.
Q Were you able to go over the fence?
A When I was over the fence already he told me to go
to a vacant house.
Q How about the accused where was he when he
ordered you to climb over the fence?
A He was at my back and he told me to go first and
then he followed.
Q So after you went or cross over the fence what
happened next Madam witness?
60
A He told me to go to the vacant house and there he
himself told me to undress and I took off my
clothes he embraced me and kissed me sir.
Q Now when this man told you to go to the vacant
house did you obey him?
A I was told to go to the vacant house there he told me
to undress.
Q Did you obey him?
A He told me to undress and he was holding a bolo.
Court:
Q The question of the prosecutor to you was did you
obey the instruction of the accused for you to
undress?
A Yes sir.
Prosecutor Manola:
Q Tell the Honorable Court why you do followed the
instruction of that Man to go to that vacant house
and to undress why did you follow this instruction?
A I was afraid that he might kill me sir.
Q Why do you say that he might kill you?
A He like to rape me sir.
Court:
Q You did not answer the question of the prosecutor
why were you afraid?
A Because he was holding a bolo and he was at the
same time boxing me sir.
Prosecutor Manola:
Q So what happened after according to you you were
instructed to undress?
A He embraced me and kissed me and told me to lie
down.
Q And did you lie down as instructed by this Man?
A He forced me to lie down and then he forced me to
separate my legs sir.
Q And what happened when you were forced to open
your legs?
A He told me not to shout because if I will shout he will
kill me and the he inserted his penis to my vagina
sir.
Q After this Man inserted his penis in your vagina or
private part what happened next Mrs. Witness?
A He told me to lie front my face down and he inserted
his penis to my anus sir.
Q After that what happened next Mrs. Witness?
A Then he told me again to lie down and at the same
time he inserted his fingers to my private parts
going it and out sir.
Q After that what happened next Mrs. Witness?
A He lie down because he was already tired of
molesting.
Q How about you what were you doing at that time
when the accused this person according to you lie
down after he put his fingers inside your private
part?
A He asked me to go near him and lie down beside him. Q What was he doing?

Q Did you follow his instruction for you to lie near him? A He was lying down sir.

A Yes sir because he was holding a bolo sir. Q What happened after that?

Q So what happened after you lie down beside this A When we arrived there he was still alive and he was
person? brought to the hospital.

A He told me to put on my dress and at the same time Q Who brought him to the hospital?
he also told me that he does not want me to tell it
A The ambulance of the soldier.
to anybody because he have raped many.
Q Now do you remember having given a statement to
Q Now if this person whom according to you raped you
the Makati Police in connection with what you
inside the court room would you be able to
have just narrated or told or testified to this
recognize him?
afternoon?
A Yes sir I could recognize him.
A I could remember.
Q Will you kindly look around the court room if you
Q If that statement is shown to you would you be able
could recognize this person if he is inside?
to recognize it?
Note: Witness pointed to a man who was pointed as the
A Yes sir.
man who raped him and when asked his name
answered as Rolando Alfanta. Q Now showing you a statement attached to the
records of the prosecutors office consisting of two
Q Now after this person whom you just pointed to who
pages kindly go over it and tell us if you recognize
answered by the name of Rolando Alfanta uttered
this statement?
the words lahat nang ni rape ko ay pinapatay ko
dahil sa ayokong may magsumbong what A Yes sir I could recognize this.
happened next Mrs. Witness?
Q Is that your statement
A I pleaded to him and he said not to put on my dress
because he is going to take a rest. A Yes sir.

Q After that what happened next if any Mrs. Witness? xxx xxx xxx.

A I saw him that he was sleeping already and then I Q Now this bolo which according to you surrendered to
suddenly got the knife and stab him in the chest the soldier at the signal if you see this bolo again
sir. would you be able to recognize it again?

Q After you stabbed him on his chest what happened A Yes sir.
next Mrs. Witness?
Prosecutor Manola:
A The knife broke and then I suddenly grabbed the bolo
We would like to make reservation for this witness to
and hack and hack him sir.
identify this bolo when this bolo is presented by
Q After you hacked this person who raped you what the policeman who is in custody of this bolo.
happened next Mrs. Witness?
Court:
A I immediately put on my shirt and I got hold of the
Q How about the knife which according to you was
bolo and I run to the signal where the soldiers
seen by you at the waist line of the accused did
were.
you bring it also?
Q Did you reach this place signal where there are
A I did not bring it sir because it was broken sir it was
soldiers according to you?
only the bolo that I brought.
A Yes sir.
Q Now while you were being raped did you shout for
Q And what did you do when then when you arrived help?
there?
A Yes sir.
A I told him that I killed a person therein and give them
Q How did you ask for help?
the bolo.
A I asked for help but they were sleeping they did not
Q What happened after that when you informed the
hear me sir.
solders at signal that according to you you have
killed a person what happened next? Q The question to you was how did you ask for help?

A We went to the person who raped me sir. A I cried and I said tulungan po ninyo ako.

Q And did you see him there? Q Did anybody respond to your cries for help?

A Yes sir. A None sir.

Q Who were with you when you went back to the place Q Now how did you feel while the accused was
where you were allegedly raped? inserting his private part to your private part?

A The soldiers sir. A It hurt sir my vagina and my anus, my mouth that he
boxed me sir.
Q Did you find this person who raped you?

A Yes sir.
61
Q Now why did you say that the accused was able to
insert his penis into your vagina?
A He forced that to insert it.
Q Forced it to where?
A He forced it to enter my vagina sir.
Q Did you feel when the private part of the accused
entered to your vagina?
A Yes sir I feel it sir.
Q By the way do you know the accused prior to the date
that you were awakened?
A I do not know him.
Q In short he is a complete stranger to you when he
entered the room?
A I saw him around 7:00 oclock in the evening that he
was passing thru the front of the house of my
friends where I was sleeping.
Q At that time that you were awaken by the accused
with whom were you sleeping?
A Only me sir.
Prosecutor Manola:
Q Now you said that while you and the accused were
lying down first you stab him with the knife how
many times have you stabbed him with the knife?
A I was not able to count because I was afraid of him.
Q You said that after stabbing him with the knife which
you broke you got hold of the bolo you hacked him
how many times have you hacked him?
A I failed to count how many times. I hacked him
because I was afraid of him he might kill me.
Prosecutor Manola: That will be all for the witness.
Court: Cross-examination.
Atty. Manalo: With the permission of the Honorable
Court.
Court: Proceed.
Atty. Manalo:
Q Now who were with you at the time when you were
sleeping at the house of your friend at AFOVAI
Fort Bonifacio?
A One of their children so there were three and I was
one.
Q Were you sleeping in one room?
A I was sleeping in the sala sir.
Q Now before you sleep in that house at the sala did
you close the door of that house?
A It was closed but it was not locked.
xxx xxx xxx.
Q Now when why were you interested in sleeping in the
house of your friend when you could already at the
house of your employer?
A Because I was bringing mongo to my friend because I
am indebted to them sir.
Q Now why did you not return to your employer after
giving or handing that mongo to your friend?
62
A They told me to sleep there because it was already
late at night.
Q By the way what time did you go there?
A Around 6:00 to 6:30 in the evening.
Q And what time did you reach your friend at AFOVAI?
A 6:30 sir.
Q And Valle Verde is just in Pasig isnt?
A Yes sir.
Q It is near where you are employed and it will take you
one ride only to reach that place isnt?
A Three rides sir.
Q Now which is first to be reached from the front door of
the house where you were sleeping at the time the
place where you were sleeping or the place of the
room where the owner of the house were
sleeping?
A First it is the sala where he passed.
Q Now you said that the door was not locked was there
any other improvised locked placed in that door
like a wood?
A They did not lock the door because they are in
confident.
Q Now what is the name of the owner of the house
where you slept at that time?
A Patrick sir.
Q And how are you related to Patrick?
A His wife is my friend sir.
Q What is the name of his wife?
A Inday sir.
Q Now when you were awaken while you were sleeping
in the sala of the house of your friend Inday did
you not shout when you saw a person pulling you
holding a bolo?
A I shouted but they did not hear me because they were
sleeping and at the same time he placed his
hands on my mouth sir.
Q Now you said that you were boxed on the chest by
the accused how many times were you boxed by
the accused on the chest?
A I do not know how many times I was boxed sir
because I was really afraid of him.
Q But you were sure that you were boxed at the chest?
A Yes sir.
Note: Witness demonstrating with her hands first
pointing on her chest and also on her mouth.
Q Was it strong?
A Yes sir it was strong because the following day it has
marked.
Note: Witness holding on his left chin.
Q How about on the chest?
Note: Witness demonstrating it was pointed on her
chest.
A It was not too strong sir.
Q Did you fall down on your knee when you were hit by A 9:00 oclock in the evening sir.
the blow?
Q Why were you sure that he was the one who passed
A Yes sir. by the house of your friend?

Q Where? A I saw him that he was passing.

A I fell on the ground down. Q Where were you at the time?

Q Where were you boxed by the accused? A I was seating by the window sir.[7]

A Outside sir of the house. The testimony of the complainant about the incident is
straightforward categorical, and relatively free from any
Q Now you said that you were ordered to undress and
serious flaw. No compelling reason is advanced to
to lie down on the ground is that correct?
sufficiently persuade the Court to conclude that the trial
A Yes sir. court has erred in giving due weight and credence to the
testimony of the complainant. Neither is evidence adduced
Q And you followed him? to show that the complainant has had any ulterior motive to
prevaricate and enmesh accused-appellant in a fabricated
A He told me to undress in the garage and he also
charge. The Court repeats the familiar doctrine that when a
undressed himself and because I was afraid
woman claims that she has been raped, she says in effect
because he was holding a bolo sir.
all that is necessary to show such a fact so long as her
Q When he undressed himself was he still holding a testimony can meet the test of credibility,[8] for it is said that
bolo? no woman in her right mind will cry rape, allow examination
of her private parts, or subject herself and her family to the
A Yes sir one hand was holding the bolo the other one humiliation concomitant to the prosecution of the case,
hand he was undressing himself. unless the story were true.[9]
Q Was it lighted the place? Testifying in his defense, accused-appellant claimed
A None sir. that he and the complainant had been lived-in partner for
almost a year, and that while they did sleep together on 26
Q How far were you when the accused was undressing August 1995 at the porch of the house of a certain Air
himself? Force officer, accused-appellant denied any carnal
knowledge of the victim that evening. In his appeal brief,
A Near sir.
accused-appellant sought to negate any possible or likely
Q Did you see his private part when he undressed use of violence or intimidation, considering that: (a) in the
himself? house where the victim was sleeping on the night of 26
August 1995, there were at least three persons (the
A Yes sir. caretaker of the house Patrick Augusto Ablon, his wife
Q How big? Rubylin and the couples son) who could have responded to
any shout for help from the victim; (b) the door of the house
Prosecutor Manola: Immaterial your honor. was purposely left unlocked in order to enable accused-
appellant to come into the house, and (c) when the victim
Atty. Manalo: To test the credibility, your honor.
was made to climb a fence followed by the accused, she
Court: Answer could have escaped but did not.

A It was dark and I was able to see and I do not know
because I was afraid.
Atty. Manalo:
Q And then you lie down?
A He told me to lie down and he placed himself on top
of me.
Q Was he still holding the bolo?
A Yes sir he was holding the bolo on his one hand.
Q How did you see him?
A When he was holding the bolo with his one hand
while I he was on top of me I cried and he was
holding the bolo.
Note: Witness demonstrating the accused holding the
bolo upward.
A When I cried he was on top of me sir.
Q What was he doing when he was on top of you?
A He was molesting me sir.
xxx xxx xxx
Q Now what time did you see him passed by the house
of your friend according to you?
The sweetheart theory of accused-appellant would
appear to be another worn out strategy, often resorted to as
a last ditch effort, to exculpate oneself from criminal
liability. No documentary evidence of any sort, like a letter
or a photograph or any piece of memento, was presented
to confirm a romantic liaison between accused-appellant
and the complainant. The latter testified:
Q Is it not a fact that you and the accused were
sweethearts?
A No sir.
Q And that you went to that place AFOVAI just to meet
him in that place?
A No sir he is not my sweetheart. Why will I hack him if
he is my sweetheart?
Q You hacked him with the bolo because of you are too
much jealousy is concerned because your
sweetheart was then womanizing?
Prosecutor Manola: Misleading your honor.
Atty. Manalo: I am on cross-examination your Honor.
Court: Answer.
A Why will I get jealous I have nothing to do with him. I
do not know him sir.

63
 Atty. Manalo:
Q Really?
A I do not know him. I really do not know him sir.[10]
It would be rather strange an occurrence for a love-
partner, if true, to stab her beloved for petty reasons. The
trial court was not out of line when it made this
evaluation; viz:
This Court cannot accept the claim of accused that he and
complainant Nita Fernandez were sweethearts, for such a
claim defies rationality, let alone common sense, because if
they were sweethearts, she will not hack him. Not only that,
the manner on which she stabbed and hacked him, first
with a knife, then with a bolo, shows a complete anger to
vindicate the outrage on her. If they were sweethearts, she
would not have acted in the manner she did in stabbing
and hacking him. At least, if they have some relationship,
she would not show anger the way she did.[11]
Neither would the presence of at least three persons
on the night of 26 August 1995 in the house where victim
was sleeping necessarily disprove the sexual assault. It
was already close to midnight when the incident occurred,
and the other occupants of the house were by then
apparently all sound asleep. The evidence is to the effect
that accused-appellant immediately after getting into the
house hit her on the jaw, put his hand on her mouth and
threatened to kill her if she dared refuse to yield to his
demands. Understandably, the victim was shocked, gripped
by fear and then cowed into submission. Intimidation
should be viewed in the light of the perception and
judgment of the victim at the time of the commission of the
offense and not by any kind of hard and fast rule. It would
be unreasonable to expect the victim to act with equanimity
of disposition and to have the courage and intelligence to
disregard the threat made by accused-appellant.[12]
The claim that the unlocked door of the house was a
sign that the complainant wanted accused-appellant to
have a chance to see her during the late evening indeed
should deserve scant consideration. The so-called love
angle was properly ruled out by the trial court for lack of
concrete evidence to establish any such relationship.
Anent the failure of the complainant to escape when
accused-appellant ordered her to climb a fence, it should
be enough to state she did not appear to have had any real
opportunity to flee from the clutches of the intruder who
was, in fact, just behind her. After scaling the fence and
while inside the abandoned and enclosed house, she could
not have done any much better since she was all the time
within striking distance of the bolo-wielding malefactor.
And now on the propriety of an appreciation of the
aggravating circumstances of nighttime and ignominy.
Nighttime is said to be that period of darkness
beginning at the end of dusk and ending at dawn. [13] The
law defines nights as being from sunset to sunrise.[14] By
and of itself, nighttime would not be an aggravating
circumstance unless it is specially sought by the offender,
or it is specially taken advantage of by him, or it facilitates
the commission of the crime by insuring the offenders
immunity from capture.[15] As an ordinary aggravating
circumstance, nighttime can be so considered provided it is
duly proved although not alleged in the information. [16] The
Court entertains no doubt that appellant has specially taken
advantage of the cover of darkness to facilitate the
commission of the crime without being
recognized. Accused-appellant has abducted his victim,
brought her to an abandoned and unlit house and then
unleashed his carnal desire on her, assured of the stillness
64
of a sleeping world.[17] The Court has long held that this
aggravating circumstance can be considered when an
accused takes advantage of the silence and darkness of
the night to ensure impunity from his illegal act.[18]
With respect to ignominy, the victim testified that after
appellant had inserted his penis into her vagina, appellant
ordered her to lie face down and while in that position had
his penis into her anus.Thereafter, he ordered her to lie
down again and this time he inserted his finger inside
her. The Solicitor General correctly invoked the case of
People vs. Saylan,[19] where this Court said:
The trial court held that there was ignominy because the
appellant used not only the missionary position, i.e. male
superior, female inferior, but also the same position as
dogs do i.e., entry from behind. The appellant claims there
was no ignominy because The studies of many experts in
the matter have shown that this position is not novel and
has repeatedly and often been resorted to by couples in the
act of copulation. (Brief, p. 24.) This may well be if the
sexual act is performed by consenting partners but not
otherwise.[20]
Article 14, paragraph 17, of the Revised Penal Code
considers to be an aggravating circumstance any means
employed or circumstance brought about which add
ignominy to the natural effects of the act.The circumstance,
it is said,[21] "pertains to the moral order [and] adds
disagree and obloquy to the material injury caused by the
crime.
The crime of 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 or is
demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a
deadly weapon or by two or more persons, the penalty shall
be reclusion perpetua to death.[22]
In the case at bar, it remained uncontroverted that
accused-appellant was armed with a bolo to realize his
criminal objective. Nonetheless, the use of a deadly
weapon could not be considered as a qualifying
circumstance in the crime of rape[23] for not having been
correspondingly alleged in the information as to make the
offense fall under the jurisprudentially referred qualified
rape punishable by reclusion perpetua to death. In
People vs. Garcia,[24] the Court declared:
One further observation. Article 335 originally provided only
for simple rape punishable by reclusion perpetua, but
Republic Act No. 4111 introduced amendments
thereto by providing for qualified forms of rape
carrying the death penalty, that is, when committed
with the use of a deadly weapon or by two or more
persons, when by reason or on the occasion of the rape
the victim becomes insane, or, under the same
circumstances, a homicide is committed. The homicide in
the last two instances in effect created a special complex
crime of rape with homicide. The first two attendant
circumstances are considered as equivalent to
qualifying circumstances since they increase the
penalties by degrees, and not merely as aggravating
circumstances which affect only the period of the
penalty but do not increase it to a higher degree. The
original provisions of Article 335 and the amendments of
Republic Act No. 4111 are still maintained.

xxx xxx xxx.

Now, it has long been the rule that qualifying

circumstances must be properly pleaded in the
indictment. If the same are not pleaded but proved,
they shall be considered only as aggravating
circumstances, (People vs. Collado, 60 Phil. 610 [1934];
People vs. Jovellano, et al., L-32421, March 27, 1974, 56
SCRA 156; People vs. Fuertes, G.R. No. 104067, January
17, 1994, 229 SCRA 289; People vs. Rodico, et al., G.R.
No. 107101, October 16, 1995, 249 SCRA 309.) since the
latter admit of proof even if not pleaded. (U.S. vs. Campo,
23 Phil. 368 [1912]; People vs. Domondon, 60 Phil. 729
[1934]; People vs. De Guzman, G.R. No. 73464, August
1988, 164 SCRA 215.) Indeed, it would be a denial of the
right of the accused to be informed of the charges against
him and, consequently, a denial of due process, if he is
charged with simple rape and be convicted of its qualified
form punishable with death, although the attendant
circumstance qualifying the offense and resulting in capital
punishment was not alleged in the indictment on which he
was arraigned.[25]

Simple rape is punishable by a single indivisible

penalty of reclusion perpetua. Thus, even if there were
aggravating circumstances of nighttime and ignominy in
attendance the appropriate penalty would still be reclusion
perpetua under the law. Article 63 of the Revised Penal
Code provides that in all cases in which the law prescribes
a single indivisible penalty, it shall be applied by the courts
regardless of any mitigating or aggravating circumstances
that may have attended the commission of the deed.

WHEREFORE, the decision of the trial court finding

accused-appellant Rolando Alfanta guilty beyond
reasonable doubt of the crime of rape is AFFIRMED WITH
MODIFICATION by hereby lowering the penalty therein
imposed from death to reclusion perpetua. An award
of P50,000.00 for moral damages is likewise ordered to be
paid by accused-appellant Rolando Alfanta to the victim
Nita Hernandez in addition to the sum of P50,000.00 by
way of indemnity ex delictu granted by the trial court.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan,

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

65