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G.R. No.

85735 January 18, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

JULIO LUG-AW and ROGELIO BANNAY alias JUNIOR BANNAY, defendant-appellants.


Carlos Pal-loy was shot to death as he was fencing the boundary limits of the land he was farming by persons identified with the owner
of the land adjacent to his own and with whom Pal-loy had a boundary dispute.

Pal-loy straightened out the boundary line by putting up a fence allegedly upon the instruction of the public forester.

As Pal-loy went about the task, his 13-year old-daughter, Sonia, and another daughter named Carina, followed him around. Pal-loy was
proceeding towards the house when Sonia heard a gun report. Immediately, she went uphill and just as a second gun report
resounded, she saw Rogelio Bannay and Julio Lug-aw from a distance of around four meters. She saw, too, that as her father was
about to draw his bolo, Lug-aw shot him.

Approaching here father, she found him wounded. Pal-loy asked her to call her mother. Sonia obeyed and together with her mother,
they returned to him. He told them that his assailants were Lug-aw and Bannay. Her mother told her to seek help but no one
responded. It was only when her mother herself called for help that Boy Culap, Gorio Gay-yaman and Patumbay Immul-yap came to
their assistance. They brought Pal-loy to their house.

Instructing her daughters to look after their father, Carmen forthwith proceeded to the barangay captain and councilmen of Sto. Niño to
ask for help. Since no one came to help her, she sought the assistance of her neighbors. Her husband died at around 12 o'clock
midnight and they buried him within the premises of their residence. His body was exhumed after the report and found that Pal-loy
could have died of "severe hemorrhage secondary to gunshot wound.

ISSUE: Whether or not the crime murder with aggravating circumstances of treachery and evident premeditation was committed by the


NO. The court held that conclude that the crime committed was not murder but homicide. The qualifying circumstances of treachery and
evident premeditation had not been proven beyond reasonable doubt.

The trial court drew the conclusion of the presence of treachery because the attack was sudden as Pal-loy was simply going about his
task of fencing his kaingin. We find however, that no one witnessed the initial attack. As Sonia herself testified, she heard the first shot,
went up a hill, climbed a tree and from there, saw Lug-aw shooting her father with the shot reverberating as the second gun
report.Nowhere do we find in the records any evidence that she witnessed the first shot nor how her father reacted to it. What she did
see was her father trying to repel the assault with a bolo but he failed because a second shot hit him.

As this Court held in People v. Castor, where the lone eyewitness was not able to observe the commencement of the assault, he could
not, therefore, testify on how it all began and developed. The absence in any particulars as to the manner in which the aggression
commenced or how the act resulted in the death of the victim unfolded, treachery cannot be appreciated to qualify the killing to murder.

Similarly, the records are bereft of evidence that the crime was committed with evident premeditation. The three requisites of this
aggravating circumstance, namely, the time when the offender determined to commit the crime, an act manifestly indicating that the
culprit has clung to his determination and a sufficient lapse of time between the determination and execution to allow the accused
opportunity to reflect upon the consequences of his act, are wanting in the case at bar. Evident premeditation was, therefore, incorrectly
appreciated by the trial court.

WHEREFORE, appellant Julio Lug-aw is hereby found guilty beyond reasonable doubt of homicide under Art. 249 of the Revised penal
Code for killing Carlos Pal-loy and he shall serve the indeterminate sentence of ten (10) years and one (1) day of prision
mayor maximum as minimum penalty to seventeen (17) years and four (4) months of reclusion temporal medium as maximum penalty,
and indemnify the heirs of Carlos Pal-loy in the amount of fifty thousand pesos (P50,000.00). Appellant Rogelio Bannay is hereby
ACQUITTED of the crime charged and he shall be released from custody immediately. No costs.
G.R. No. 166401 October 30, 2006

FACTS: Eight (8) Informations were filed within the period 21 August 2000 to 23 February 2001 by the Assistant Provincial Prosecutor
of Gumaca, Quezon against Alfredo Bon (appellant), charging him with the rape of AAA and BBB, the daughters of his older brother. All
these cases were consolidated for trial. The rapes were alleged to have been committed in several instances over a span of six (6)
years. Both AAA and BBB testified against appellant, their uncle, and both identified him as the man who had raped them.

The RTC convicted appellant on all eight (8) counts of rape. It further considered the qualifying circumstances of minority of the victims
and the relationship of the victims and appellant, the latter being the former's relative by consanguinity within the third degree.

The Court of Appeals downgraded the convictions in Criminal Case Nos. 6906 and 6908 to attempted rape. The sentence was
prescribed by the appellate court prior to the enactment of R.A. No. 9346 which ended the imposition of death penalty. The proximate
concern as to the appellant is whether his penalty for attempted qualified rape which under the penal law should be two degrees lower
than that of consummated rape, should be computed from death or reclusion perpetua.

ISSUE: What is the properly penalty for the crimes convicted?

HELD: The sentence of death imposed by the RTC and affirmed by the Court of Appeals can no longer be affirmed in view of Rep. Act
No. 9346, Section 2 of which mandates that in lieu of the death penalty, the penalty of reclusion perpetua shall be imposed.
Correspondingly, the Court can no longer uphold the death sentences imposed by lower courts, but must, if the guilt of the accused is
affirmed, impose instead the penalty of reclusion perpetua, or life imprisonment when appropriate.

Upon the other hand, Article 51 of the Revised Penal Code establishes that the penalty to be imposed upon the principals of an
attempted felony must be a penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed
upon the principals in an attempt to commit a felony.

The penalty "lower by two degrees than that prescribed by law" for attempted rape is the prescribed penalty for the consummated rape
of a victim duly proven to have been under eighteen years of age and to have been raped by her uncle, is death under Article 266-B of
the Revised Penal Code. The determination of the penalty two degrees lower than the death penalty entails the application of Articles
61 and 71 of the Revised Penal Code. Following the scale prescribed in Article 71, the penalty two degrees lower than death is
reclusion temporal, which was the maximum penalty imposed by the Court of Appeals on appellant for attempted rape.

Hence, the Court of Appeals sentenced appellant to suffer the penalty for attempted rape, with a maximum penalty within the range of
reclusion temporal, and a minimum penalty within the range of the penalty next lower, or prision mayor. If Rep. Act No. 9346 had not
been enacted, the Court would have affirmed such sentence without complication. However, the enactment of the law has given rise to
the problem concerning the imposable penalty. Appellant was sentenced to a maximum term within reclusion temporal since that is the
penalty two degrees lower than death. With the elimination of death as a penalty, does it follow that appellant should now be sentenced
to a penalty two degrees lower than reclusion perpetua, the highest remaining penalty with the enactment of Rep. Act No. 9346? If it so
followed, appellant would be sentenced to prision mayor in lieu of reclusion temporal. The consummated felony previously punishable
by death would now be punishable by reclusion perpetua. At the same time, the same felony in its frustrated stage would, under the
foregoing premise in this section, be penalized one degree lower from death, or also reclusion perpetua. It does not seem right, of
course, that the same penalty of reclusion perpetua would be imposed on both the consummated and frustrated felony. Thus, RA 9346
should be construed as having downgraded those penalties attached to death by reason of the graduated scale under Article 71. Only
in that manner will a clear and consistent rule emerge as to the application of penalties for frustrated and attempted felonies, and for
accessories and accomplices. In the case of appellant, the determination of his penalty for attempted rape shall be reckoned not from
two degrees lower than death, but two degrees lower than reclusion perpetua. Hence, the maximum term of his penalty shall no longer
be reclusion temporal, as ruled by the Court of Appeals, but instead, prision mayor.
G.R. No. 140231 July 9, 2007

FACTS: On October 8, 1992, then President Fidel V. Ramos issued Administrative Order No. 13 creating the Presidential Ad Hoc Fact-
Finding Committee on Behest Loans (Committee) which was tasked to inventory all behest loans, determine the parties involved and
recommend whatever appropriate actions to be pursued thereby.

On November 9, 1992, President Ramos issued Memorandum Order No. 61 expanding the functions of the Committee to include the
inventory and review of all non-performing loans, whether behest or non-behest. Among the accounts referred to the Committee's
Technical Working Group (TWG) were the loan transactions between NOCOSII and PNB. After it had examined and studied all the
documents relative to the said loan transactions, the Committee classified the loans obtained by NOCOSII from PNB as behest
because of NOCOSII's insufficient capital and inadequate collaterals.

Based on the Sworn Statement of PCGG consultant Orlando Salvador, petitioner filed with the Office of the Ombudsman the criminal
complaint against respondents. Petitioner alleges that respondents violated the provisions of Section 3 (e) and (g) of R.A. No. 3019.

In a Resolution dated January 12, 1998 in OMB-0-95-0890, GIO Diaz-Salcedo recommended the dismissal of the case on the ground
of insufficiency of evidence or lack of probable cause against the respondents and for prescription of the offense. Ombudsman Desierto
approved the recommendation on May 21, 1999. Petitioner filed a Motion for Reconsideration but it was denied by GIO Diaz-Salcedo in
the Order dated July 9, 1999, which was approved by Ombudsman Desierto on July 23, 1999. Petitioner elevated the case to this

ISSUE: Whether the Ombudsman committed grave abuse of discretion in ruling that the offense leveled against respondents has

HELD: The petition is partly meritorious. Respondent Ombudsman committed grave abuse of discretion in dismissing the subject
complaint on the ground of prescription. Respondents members of the PNB Board of Directors and Officers of NOCOSII are charged
with violation of R.A. No. 3019, a special law. Amending said law, Section 4, Batas Pambansa Blg. 195, increased the prescriptive
period from ten to fifteen years. The applicable law in the computation of the prescriptive period is Section 2 of Act No. 3326, as
amended.In cases involving violations of R.A. No. 3019 committed prior to the February 1986 Edsa Revolution that ousted President
Ferdinand E. Marcos, we ruled that the government as the aggrieved party could not have known of the violations at the time the
questioned transactions were made. Moreover, no person would have dared to question the legality of those transactions. Thus, the
counting of the prescriptive period commenced from the date of discovery of the offense in 1992 after an exhaustive investigation by the
Presidential Ad Hoc Committee on Behest Loans. As to when the period of prescription was interrupted, the second paragraph of
Section 2, Act No. 3326, as amended, provides that prescription is interrupted 'when proceedings are instituted against the guilty
person. Records show that the act complained of was discovered in 1992. The complaint was filed with the Office of the Ombudsman
on April 5, 1995, or within three (3) years from the time of discovery. Thus, the filing of the complaint was well within the prescriptive
period of 15 years.